Opinion
CV-23-00187-PHX-JAT
01-03-2024
Mitchell Anthony Mikols, Petitioner, v. RA Heisner, Respondent.
ORDER
James A. Teilborg Senior United States District Judge.
Pending before this Court is Petitioner's Petition brought pursuant to 28 U.S.C. § 2241. The Magistrate Judge to whom this case was assigned issued a Report and Recommendation (“R&R”) on November 1, 2023, recommending that the Petition be denied. (Doc. 12).
On November 30, 2023, Petitioner filed a notice of change of address. On December 1, 2023, the Clerk's office re-mailed the R&R to Petitioner at the new address. More than 14 days have passed since the re-mailing and no objections to the R&R have been filed.
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 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 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 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 not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. 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.”).
The Court notes that the Notes of the Advisory Committee on Rules appear to suggest a clear error standard of review under Federal Rule of Civil Procedure 72(b). See 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.
No objections having been filed, IT IS ORDERED that the Report and Recommendation (Doc. 12) is accepted and adopted. The Petition is denied and dismissed with prejudice and the Clerk of the Court shall enter judgment accordingly.
IT IS FURTHER ORDERED that no certificate of appealability is required.
See Porter v. Adams, 244 F.3d 1006, 1007 (9th. Cir. 2001).