Opinion
Case No. 12-11005
01-27-2014
BERNARD KELLY, #526389, Petitioner, v. KENNETH ROMANOWSKI, Respondent.
Honorable Thomas L. Ludington
ORDER DENYING MOTION FOR MAGISTRATE'S
REPORT AND RECOMMENDATION AND DENYING AS MOOT MOTION FOR
LIBERAL CONSTRUCTION
This matter is before the Court on Bernard Kelly's "Motion for Magistrate's Report and Recommendation" seeking to have his pending habeas case referred to a magistrate judge for consideration pursuant to Federal Rule of Civil Procedure 72, as well as his "Motion for Liberal Construction" seeking to have the Court liberally construe his pro se pleadings.
I
Kelly requests that his case be referred to a United States Magistrate Judge. Under the federal habeas rules, a magistrate judge may perform the duties of a district judge as authorized by 28 U.S.C. § 636, except for ultimate decision-making authority. See Rule 10, Rules Governing Section 2254 Cases; Blackledge v. Allison, 431 U.S. 63, 81 n.22 (1977). Title 28 U.S.C. § 636(b)(1)(B) provides that a district judge "may . . . designate a magistrate judge . . . to submit to a judge of the court proposed findings of fact and recommendations for the disposition . . . of applications for posttrial relief made by individuals convicted of criminal offenses . . . ." This rule "permits, but does not require, a district judge to designate a magistrate judge to submit proposed findings or recommendations for the disposition of a case." Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). Thus, "reference to a magistrate judge is entirely discretionary . . . [and a] litigant has no right to a magistrate judge." Id. at 933. Although the Court has discretion to refer this habeas case to a magistrate judge, the Court declines to do so at this time.
II
Kelly also asks the Court to liberally construe his pro se habeas pleadings, citing Haines v. Kerner, 404 U.S. 519 (1972). Kelly is correct that federal courts liberally construe pro se pleadings. Additionally, federal courts reviewing habeas corpus petitions must apply the standard of review established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified 28 U.S.C. § 2241 et seq. The Court is well aware of its obligation to follow the law in resolving this matter. Kelly's motion is therefore unnecessary.
III
Accordingly, it is ORDERED that Kelly's motion for a magistrate's report and recommendation, ECF No. 13, is DENIED.
It is further ORDERED that Kelly's motion for liberal construction, ECF No. 14, is DENIED as moot.
__________
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail, and upon Bernard Kelly #526389, Adrian Correctional Facility, 2727 Beecher Rd, Adrian, MI 49221 by first class U.S. mail, on January 27, 2014.
__________
TRACY A. JACOBS