United States District Court, D. New Mexico
DANIEL E. CORIZ, Petitioner,
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
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.
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”).
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.
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.”
Fed.R.Civ.P. 72(b)(3). Similarly, 28 U.S.C. § 636
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 [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.
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 [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).
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