Knight v. Shinn ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kimberly A. Knight, No. CV-21-01865-PHX-JAT 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. 14 15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus. The 16 Magistrate Judge to whom this case was referred issued a Report and Recommendation 17 (“R&R”) recommending that the Petition be denied. (Doc. 20). Neither party has objected 18 to the R&R and the time for filing objections has run. 19 This Court “may accept, reject, or modify, in whole or in part, the findings or 20 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 21 the district judge must review the magistrate judge’s findings and recommendations de 22 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 23 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 24 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 25 de novo review of factual and legal issues is required if objections are made, ‘but not 26 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 27 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 28 [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 2|| objection.” Thomas vy. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. || § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.”).! 5 There being no objections, 6 IT IS ORDERED that the R&R (Doc. 20) is accepted. 7 IT IS FURTHER ORDERED that Grounds | through 7 of Petitioner’s Petition for 8 || Writ of Habeas Corpus are dismissed with prejudice; the remainder of Petitioner’s Petition 9|| for Writ of Habeas Corpus is denied. The Clerk of the Court shall enter judgment 10 || accordingly. 11 IT IS FINALLY ORDERED that pursuant to Rule 11 of the Rules Governing 12 || Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a 13 || certificate of appealability because jurists of reason would not find it debatable whether the Court was correct in its procedural ruling, and jurists of reason would not find the Court’s 15 || assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 17 Dated this 18th day of August, 2022. 18 19 20 James A. Teilborg Senior United States District Judge 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 || not within this limited context, this Court follows the Ninth Circuit’s en banc decision in Reyna-Tapia on the standard of review. _2-