Sevelis v. Unknown Party ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Timothy Scott Sevelis, No. CV-21-00951-PHX-JAT 10 Petitioner, ORDER 11 v. 12 K. Kline, 13 Respondent. 14 15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus filed 16 pursuant to 28 U.S.C. § 2241 (“Petition”). Respondent has filed an answer and a motion 17 to dismiss. The Magistrate Judge to whom this case was assigned issued a Report and 18 Recommendation (“R&R”) recommending that the Petition be denied and dismissed with 19 prejudice and that Respondent’s motion to dismiss be denied as moot. Neither party has 20 objected to the R&R and the time for filing objections has run. 21 This Court “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 23 the district judge must review the magistrate judge’s findings and recommendations de 24 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 25 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 26 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 27 de novo review of factual and legal issues is required if objections are made, ‘but not 28 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the || [Magistrate Judge’s] recommendations to which the parties object.”). District courts are || not required to conduct “any review at all... of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. 5 || § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report 6|| and recommendation] to which objection is made.”).! 7 Accordingly, 8 IT IS ORDERED that the R&R (Doc. 21) is accepted. The Petition, as amended, (Doc. 11) is denied and dismissed with prejudice and the Clerk of the Court shall enter judgment accordingly. Respondent’s motion to dismiss for failure to exhaust 11 || administrative remedies (Doc. 18) is denied as moot because Respondent did not object to || this recommendation. The Court will not address the recommendation regarding a 13 || certificate of appealability because a certificate of appealability is not required in an action pursuant to 28 U.S.C. § 2241. See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001) (order). 16 Dated this 13th day of May, 2022. 17 18 19 James A. Teilborg 20 Senior United States District Judge 21 22 23 24| 1 The Court notes that the Notes of the Advisory Committee on Rules appeat to suggest a clear error standard of review under Federal Rule of Civil Procedure 72(b), citing Campbell. Fed. R. Civ. P. 72(b), NOTES OF ADVISORY COMMITTEE ON RULES— 1983 citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974), cert. denied, 419 U.S. 879 (The court “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”). The court in Campbell, however, appears to delineate a standard of review specific to magistrate judge findings in the motion to suppress context. See Campbell, 501 F.2d at 206-207. Because this case is 28 || not within this limited context, this Court follows the Ninth Circuit’s 2003 en banc decision in Reyna-Tapia on the standard of review. _2-