Opinion
No. C 99-3094-MWB
August 1, 2001
ORDER REGARDING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This action for habeas corpus relief pursuant to 28 U.S.C. § 2254 comes before the court pursuant to the Report and Recommendation filed in this matter on June 28, 2001, by Magistrate Judge Paul A. Zoss. Judge Zoss recommends that relief be denied on the petitioner's only exhausted claim, a claim that his trial counsel was ineffective in failing to challenge the constitutionality of a search incident to citation pursuant to IOWA CODE § 805.1(4). In a unanimous decision, the United States Supreme Court subsequently found IOWA CODE § 805.1(4) unconstitutional. See Knowles v. Iowa, 525 U.S. 113 (1998). Judge Zoss nevertheless found that Winters cannot demonstrate the requirements for relief on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984) — that is, that the decision of the Iowa Court of Appeals in this regard was neither contrary to controlling precedent of the United States Supreme Court nor an unreasonable application of such precedent. See 28 U.S.C. § 2254(d). However, Judge Zoss recommends that a certificate of appealability issue, on the ground that the Supreme Court might hold that its declaration that IOWA CODE § 805.1(4) is unconstitutional has retroactive application to cases on collateral review. No timely objections to Judge Zoss's Report and Recommendation have been filed.
The standard of review to be applied by the district court to a report and recommendation of a magistrate judge is established by statute:
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].28 U.S.C. § 636(b)(1). The Eighth Circuit Court of Appeals has repeatedly held that it is reversible error for the district court to fail to conduct a de novo review of a magistrate judge's report where such review is required. See, e.g., Hosna v. Groose, 80 F.3d 298, 306 (8th Cir.) (citing 28 U.S.C. § 636(b)(1)), cert. denied, 519 U.S. 860 (1996); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (citing Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994)); Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (also citing Belk). However, the plain language of the statute governing review provides only for de novo review of "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Therefore, portions of the proposed findings or recommendations to which no objections are filed are reviewed only for "plain error." See Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (reviewing factual findings for "plain error" where no objections to the magistrate judge's report were filed).
Because no timely objections have been filed in this case, the court will review Judge Zoss's Report and Recommendation only for "plain error." Id. Upon such review, the court finds no "plain error," and so will accept Judge Zoss's Report and Recommendation in its entirety.
THEREFORE,
1. Judge Zoss's June 28, 2001, Report and Recommendation in this matter is accepted in its entirety.
2. Winter's petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 is denied. Judgment in favor of the respondent shall enter accordingly.
3. A certificate of appealability pursuant to 28 U.S.C. § 2253(c) is granted on the question of the retroactive application of Knowles v. Iowa, 525 U.S. 113 (1998), which declared IOWA CODE § 805.1(4) unconstitutional, to cases on collateral review.
IT IS SO ORDERED.