United States District Court, D. New Mexico
Jim Harry Plaintiff pro se
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on the Magistrate
Judge's Proposed Findings and Recommended Disposition,
filed May 24, 2018 (CR Doc. 289)(“PFRD”), which
recommends denying Defendant/Movant's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody, filed May 26, 2017 (CR Doc.
267) (“Petition”). No party has filed objections
to the PFRD, and the deadline for filing objections has
passed. Because the Court concludes that the conclusions and
recommended disposition in the PFRD are not clearly
erroneous, arbitrary, obviously contrary to law, or an abuse
of discretion, the Court will: (i) adopt the PFRD; (ii) deny
Plaintiff/Respondent's Petition; and (iii) enter a Final
Judgment dismissing this case with prejudice.
AND PROCEDURAL BACKGROUND
PFRD provides the relevant factual and procedural background
to this case. The Court will not repeat that background here.
No party disputes any of the Honorable Jerry H. Ritter,
United States Magistrate Judge for the United States District
Court for the District of New Mexico's findings of fact
or procedural history.
REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
courts may refer dispositive motions to a Magistrate Judge
for a recommended disposition. See Fed.R.Civ.P.
72(b)(1) (“A magistrate judge must promptly conduct the
required proceedings when assigned, without the parties'
consent, to hear a pretrial matter dispositive of a claim or
defense . . . .”). Rule 72(b)(2) governs objections:
“Within 14 days after being served with a copy of the
recommended disposition, a party may serve and file specific
written objections to the proposed findings and
recommendations.” Finally, when resolving objections to
a magistrate judge's proposal, “[t]he district
judge must determine de novo any part of the Magistrate
Judge's disposition that has been properly objected to.
The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.”
28 U.S.C. § 636 provides:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1).
filing of objections to a magistrate's report enables the
district judge to focus attention on those issues -- factual
and legal -- that are at the heart of the parties'
dispute.'” United States v. One Parcel of Real
Prop., With Bldgs., Appurtenances, Improvements, and
Contents, 73 F.3d 1057, 1059 (10th Cir.
1996)(“One Parcel”)(quoting Thomas
v. Arn, 474 U.S. 140, 147 (1985)). As the United States
Court of Appeals for the Tenth Circuit has noted, “the
filing of objections advances the interests that underlie the
Magistrate's Act,  including judicial
efficiency.” One Parcel, 73 F.3d at 1059
(citing Niehaus v. Kan. Bar Ass'n, 793 F.2d
1159, 1165 (10th Cir. 1986); United States v.
Walters, 638 F.2d 947, 950 (6th Cir. 1981)).
United States Court of Appeals for the Tenth Circuit has held
“that a party's objections to the magistrate
judge's report and recommendation must be both timely and
specific to preserve an issue for de novo review by the
district court or for appellate review.” One
Parcel, 73 F.3d at 1060. “To further advance the
policies behind the Magistrate's Act, [the Tenth
Circuit], like numerous other circuits, have adopted ‘a
firm waiver rule' that ‘provides that the failure
to make timely objections to the magistrate's findings or
recommendations waives appellate review of both factual and
legal questions.'” One Parcel, 73 F.3d at
1059 (citations omitted). In addition to requiring
specificity in objections, the Tenth Circuit has stated that
“[i]ssues raised for the first time in objections to
the magistrate judge's recommendation are deemed
waived.” Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996). See United States v.
Garfinkle, 261 F.3d 1030, 1031 (10th Cir.
2001)(“In this circuit, theories raised for the first
time in objections to the magistrate judge's report are
deemed waived.”). In an unpublished opinion, the Tenth
Circuit stated that “the district court correctly held
that [a petitioner] had waived [an] argument by failing to
raise it before the magistrate.” Pevehouse v.
Scibana, 229 Fed.Appx. 795, 796 (10th Cir.
One Parcel, the Tenth Circuit, in accord with other
Courts of Appeals, expanded the waiver rule to cover
objections that are timely but too general. See One
Parcel, 73 F.3d at 1060. The Supreme Court of the United
States of America -- in the course of approving the United
States Court of Appeals for the Sixth Circuit's use of
the waiver rule -- noted:
It does not appear that Congress intended to require district
court review of a magistrate's factual or legal
conclusions, under a de novo or any other standard,
when neither party objects to those findings. The House and
Senate Reports accompanying the 1976 amendments do not
expressly consider what sort of review the district court
should perform when no party objects to the magistrate's
report. See S. Rep. No. 94-625, pp. 9-10
(1976)(hereafter Senate Report); H. R. Rep. No. 94-1609, p.
11 (1976), U.S. Code Cong. & Admin. News 1976, p. 6162
(hereafter House Report). There is nothing in those Reports,
however, that demonstrates an intent to require the district
court to give any more consideration to the magistrate's
report than the court considers appropriate. Moreover, the
Subcommittee that drafted and held hearings on the 1976
amendments had before it the guidelines of the Administrative
Office of the United States Courts concerning the efficient
use of magistrates. Those guidelines recommended to the
district courts that “[w]here a magistrate makes a
finding or ruling on a motion or an issue, his
determination should become that of the district court,
unless specific objection is filed within a reasonable
time.” See Jurisdiction of United States
Magistrates, Hearings on S. 1283 before the Subcommittee on
Improvements in Judicial Machinery of the Senate Committee on
the Judiciary, 94th Cong., 1st Sess., 24 (1975)(emphasis
added)(hereafter Senate Hearings). The Committee also heard
Judge Metzner of the Southern District of New York, the
chairman of a Judicial Conference Committee on the
administration of the magistrate system, testify that he
personally followed that practice. See id., at 11
(“If any objections come in, . . . I review [the
record] and decide it. If no objections come in, I merely
sign the magistrate's order.”). The Judicial
Conference of the United States, which supported the de
novo standard of review eventually incorporated in
§ 636(b)(1)(C), opined that in most instances no party
would object to the magistrate's recommendation, and the
litigation would terminate with the judge's adoption of
the magistrate's report. See Senate Hearings, at
35, 37. Congress apparently assumed, therefore, that any
party who was dissatisfied for any reason with the