Kolmann v. Shinn

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Knute Eckhard Kolmann, No. CV-21-08125-PCT-JAT 10 Petitioner, ORDER v. David Shinn, et al., 13 Respondents.

15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus. The Magistrate Judge to whom this case was assigned issued a Report and Recommendation (“R&R”) recommending that the Petition be dismissed because the Petition is untimely, and not subject to tolling, under the Anti-Terrorism and Effective Death Penalty Act. (Doc.

19 16). Neither party has objected to the R&R and the time for filing objections has run.

20 This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that the district judge must review the magistrate judge’s findings and recommendations de 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 25 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not 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 3|| 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.”).!

6 There being no objections, 7 IT IS ORDERED that the R&R (Doc. 16) is accepted.

8 IT IS FURTHER ORDERED that the Petition in this case is dismissed, with || prejudice, and the Clerk of the Court shall enter judgment accordingly.

10 IT IS FINALLY ORDERED that pursuant to Rule 11 of the Rules Governing || Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability because dismissal of the Petition is based on a plain procedural || bar and jurists of reason would not find this Court’s procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

15 Dated this 24th day of June, 2022.

James A. Teilborg 19 Senior United States District Judge 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.

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