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Coriz v. Rodriguez

United States District Court, D. New Mexico

November 5, 2018

DANIEL E. CORIZ, Petitioner,
v.
VICTOR RODRIGUEZ, ACTING WARDEN Sandoval County Detention Center, Sandoval County New Mexico, ROBERT B. CORIZ, TRIBAL COURT JUDGE and Governor for the Pueblo of Kewa, and KEWA PUEBLO Also known as Santo Domingo Pueblo, Respondents.

          Barbara Louise Creel University of New Mexico School of Law Southwest Indian Law Clinic Albuquerque, New Mexico Attorneys for the Petitioner

          Heather Renee Smallwood Sandoval County Bernalillo, New Mexico Attorney for Respondent Victor Rodriguez

          Cynthia A. Kiersnowski Leger Law & Strategy, LLC Santa Fe, New Mexico Attorneys for Respondent Robert B. Coriz

          MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER comes before the Court on the Magistrate Judge Molzen's Proposed Findings and Recommended Disposition on Petitioner's Motion to Substitute the Current Governor as the Successive Officer in the Above-Captioned Case, filed June 7, 2018 (Doc. 34)(“PFRD”). On June 21, 2018, Petitioner Daniel E. Coriz filed objections to the PFRD. See Petitioner Coriz's Objections to Proposed Finds of Fact and Recommended Disposition (Doc. 36)(“Objections”). The Court will overrule the Objections and adopt the PFRD.

         PROCEDURAL BACKGROUND

         D. Coriz filed his Petition for Writ of Habeas Corpus Pursuant to 25 U.S.C. § 1303, filed December 22, 2017 (Doc. 1)(“Petition”), which names Respondent Robert B. Coriz, in both his official capacity as Tribal Court Judge and Governor of the Kewa Pueblo, as a Respondent. See Petition at 1. R. Coriz is no longer the Governor of the Kewa Pueblo, and D. Coriz now wishes to substitute the current Governor, Thomas Moquino, Jr., as a Respondent. See Motion to Substitute the Current Governor as the Successive Officer in the Above-Captioned Case at 1, filed May 1, 2018 (Doc. 25)(“Motion”).

         The Court referred this case to the Honorable Karen B. Molzen, United States Magistrate Judge for the United States District Court for the District of New Mexico, on April 5, 2018, to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case. See Order of Reference Relating to Prisoner Cases at 1, filed April 5, 2018 (Doc. 16). Magistrate Judge Molzen issued her PFRD on June 7, 2018 in which she recommends granting the Motion in part and denying it in part. See PFRD at 4. She recommends that: (i) the Court substitute Moquino, in his official capacity as Governor of the Kewa Pueblo, in place of R. Coriz, in his official capacity as Governor of the Kewa Pueblo; (ii) R. Coriz remain a respondent in his official capacity as Tribal Court Judge; and (iii) the Court dismiss Respondent Kewa Pueblo. See PFRD at 4.

         LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND RECOMMENDATIONS

         District 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.” Fed.R.Civ.P. 72(b)(3). Similarly, 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).

         “‘The filing of objections to a magistrate [judge'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, & 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.

         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, [1] [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 [judge'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 [judge].” Pevehouse v. Scibana, 229 Fed.Appx. 795, 796 (10th Cir. 2007).

         In 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 ...


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