Dickinson v. Shinn ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Wade Cole Dickinson, No. CV-22-08125-PCT-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 assigned issued a Report and Recommendation 17 (“R&R”) recommending that the Petition be denied and dismissed with prejudice without 18 an evidentiary hearing. (Doc. 13). Neither party has objected to the R&R and the time for 19 filing objections has run. 20 This Court “may accept, reject, or modify, in whole or in part, the findings or 21 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 22 the district judge must review the magistrate judge’s findings and recommendations de 23 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 24 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F. 25 Supp. 2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 26 de novo review of factual and legal issues is required if objections are made, ‘but not 27 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 28 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 2|| not required to conduct “any review at all... of any issue that is not the subject of an 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 5 |) and recommendation] to which objection is made.”).! 6 There being no objections, 7 IT IS ORDERED that the R&R (Doc. 13) is accepted. 8 IT IS FURTHER ORDERED that the Petition in this case is denied and dismissed, || with prejudice, and the Clerk of the Court shall enter judgment accordingly. The request || for an evidentiary hearing is denied. 11 IT IS FINALLY ORDERED that, pursuant to Rule 11 of the Rules Governing 12 || Section 2254 Cases and in the event Petitioner files an appeal, the Court denies issuance 13 || of a certificate of appealability because dismissal of portions of the petition is based on a 14]| plain procedural bar and jurists of reason would not find the procedural ruling debatable, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), and Petitioner has not made a substantial 16 || showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2). 17 Dated this 12th day of May, 2023. 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-