Opinion
CIV-22-145-R
04-06-2023
RANDALL DUANE THRONEBERRY, Petitioner, v. SCOTT NUNN, Warden, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Petitioner Randall Duane Throneberry (“Petitioner”) seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). United States District Judge David L. Russell referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 7). Respondent has filed a response (Doc. 23), along with portions of the record, including a preliminary hearing transcript (P. Hr. Tr.), the jury trial transcript (Trial Tr.), exhibits (State's Ex.), the sentencing transcript (S. Tr.), and the state trial court record (R.). (Doc. 24).Petitioner has replied in support of his Petition. (Doc. 29). For the reasons set forth below, the undersigned recommends that Petitioner's Petition for habeas relief be DENIED on Ground Seven and DISMISSED WITH PREJUDICE on Grounds One, Two, Three, Four, Five, and Six.
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the state court records will refer to the original pagination.
I. Factual and Procedural History
Petitioner is a state inmate currently in custody at the James Crabtree Correctional Center in Helena, Oklahoma. (Doc. 1, at 1). On August 16, 2016, Petitioner placed his fingers in the vagina of an eight-year-old girl.The state charged Petitioner in Oklahoma County District Court, Case No. CF-2015-6679, with one count of Lewd Acts with a Child Under 16 After Former Conviction of a Felony. (Doc. 23, at Ex. 1, at 1; R., at 1). At the conclusion of the three-day trial, the jury found Petitioner guilty and recommended life imprisonment without the possibility of parole. (Doc. 23, at Ex. 1, at 1; R., at 203). The trial judge, Judge Timothy R. Henderson, sentenced Petitioner in accordance with the jury's recommendation. (R., at 203-05). Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals (“OCCA”), and the OCCA affirmed Petitioner's conviction and sentence on January 16, 2020. (Doc. 23, at Ex. 1, at 1, 21). Petitioner filed a petition for a writ of certiorari with the United States Supreme Court, which was denied on May 18, 2020. (Id. at Ex. 4).
The facts of this incident are set forth in the Oklahoma Court of Criminal Appeals' opinion denying Petitioner's direct appeal. (Doc. 23, at Ex. 1, at 2-4).
On July 23, 2020, Petitioner filed a Petition for Writ of Habeas Corpus with this Court (the “First Petition”). (Doc. 23, at Ex. 5); see Throneberry v. Whitten, No. CIV- 20-735-R. His First Petition alleged five grounds identical to those alleged in Grounds One through Five of the instant Petition. (Doc. 23, at Ex. 5); see below, Section III. Petitioner sought to amend (Doc. 23, at Ex. 17), and later dismiss (id. at Exs. 19-20), his First Petition in order to pursue an additional ground under McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). Before recommending dismissal of the First Petition, the court noted that “Petitioner's limitations period expires one year from May 18, 2020 - meaning he has nearly five months remaining to file a habeas action” (Doc. 23, at Ex. 18, at 7), and “remind[ed] Petitioner of the one-year limitations period governing any claims for federal habeas relief he may bring” (id. at Ex. 18, at 8-9). The court granted Petitioner's request and dismissed the First Petition without prejudice on February 19, 2021. (Id. at Ex. 21).
Petitioner filed an Application for Post-Conviction Relief in Oklahoma County District Court on March 31, 2021. (Id. at Ex. 23) (the “First Application”). Petitioner's First Application contained seven grounds for relief, including a claim under McGirt and an allegation of judicial misconduct against Judge Timothy Henderson, the trial judge presiding over Petitioner's conviction and sentencing. (Id. at Ex. 23, at 5-23). On April 20, 2021, Petitioner moved to dismiss his First Application, to “perfect his application for post-conviction and bring it in compliance with the court rules.” (Id. at Ex. 31). The state district court granted his request and dismissed his First Application without prejudice on September 10, 2021. (Id. at Ex. 37). In a separate order issued that same day, the state district court struck the First Application from the record, finding that the First Application “does not comply with Rule 37 of the Official Court Rules of the Seventh Judicial and Twenty-Sixth Administrative Districts,” and that “Petitioner was not granted prior permission, upon a showing [of] good cause, to exceed the reasonable page limitation set forth by Rule 37(B).” (Id. at Ex. 39, at 1).
Petitioner filed a second Application for Post-Conviction Relief in Oklahoma County District Court on September 30, 2021. (Id. at Ex. 40) (the “Second Application”). Petitioner's Second Application contained one ground for relief: that the “trial court abused its discretion when Judge Timothy Henderson showed bias by favoring the female assistant district attorneys, ignoring the obvious statutory laws, constitutional laws.” (Id. at 3). The state district court denied the application, finding Petitioner should have raised this argument on direct appeal. (Id. at Ex. 41, at 3). On appeal, the OCCA affirmed the decision to deny Petitioner's application on these procedural grounds. (Id. at Ex. 43, at 2). Petitioner then filed the instant Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 on February 9, 2022. (Doc. 1, at 22). The Petition is at issue.
II. Standard of Review
“The standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA') guide [this Court's] review of 28 U.S.C. § 2254 applications.” Wellmon v. Colo. Dep't of Corrs., 952 F.3d 1242, 1245 (10th Cir. 2020). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). A petitioner is entitled to federal habeas relief only if that merits-based adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “It is the petitioner's burden to make this showing and it is a burden intentionally designed to be difficult to meet.” Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (internal quotation marks omitted). This standard “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at 102-03 (internal quotation marks omitted).
This court “first determine[s] whether the petitioner's claim is based on clearly established federal law.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015). “Only Supreme Court law announced by the time of the state-court decision on the merits qualifies as clearly established law.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). If clearly established federal law exists, this court then considers whether the state court decision was contrary to or an unreasonable application of that clearly established federal law. See Owens, 792 F.3d at 1242. A state court's decision is contrary to clearly established federal law if it “comes to a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case differently than the Court has . . . on materially indistinguishable facts.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). Notably, “[i]t is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be diametrically different and mutually opposed to the Supreme Court decision itself.” Owens, 792 F.3d at 1242 (internal quotation marks omitted).
“[T]he state court's decision is an unreasonable application of Supreme Court Law” if it “identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). On this point, “the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was objectively unreasonable.” Owens, 792 F.3d at 1242 (internal quotation marks omitted). So, to qualify for habeas relief on this prong, the petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 1243 (internal quotation marks omitted). “In other words, so long as fairminded jurists could disagree on the correctness of the state court's decision, habeas relief is unavailable.” Id. (internal quotation marks omitted); see also Harrington, 562 U.S. at 103 (“As a condition for obtaining [federal habeas relief], a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).
This court “must accept a state-court [factual] finding unless it was based on ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Davis v. Ayala, 576 U.S. 257, 271 (2015) (quoting 28 U.S.C. § 2254(d)(2)). This court presumes the factual determination to be correct; a petitioner can only rebut this presumption with clear and convincing evidence. See id.; see also 28 U.S.C. § 2254(e)(1). III. Analysis
Petitioner raises seven grounds for relief, alleging:
• (Ground One) “Petitioner's sentence is unconstitutional because his sentence was enhanced improperly under Okla. Stat. tit. 21, § 51.1(A);”
• (Ground Two) “Presentation of victim impact evidence violated due process;”
• (Ground Three) “Automatic life without parole sentence is disproportionate and in violation of the 8th Amendment;”
• (Ground Four) “Automatic life without parole sentence deprives Petitioner of the right to jury assessment of punishment;”
• (Ground Five) “Propensity evidence was more prejudicial than probative, depriving Petitioner of a fair trial;”
• (Ground Six) “Sentence is excessive;” and
• (Ground Seven) “New discovery [of judicial bias, that the] trial court abused its discretion.”(Doc. 1, at 5-18).
Respondent contends that Grounds One, Two, Three, Four, Five, and Six are untimely under AEDPA. (Doc. 23, at 13-20). Respondent further contends that Petitioner is not entitled to relief on Ground Seven, as he was not denied a fair trial on the basis of judicial bias. (Id. at 20-27).
As set forth fully below, Petitioner is not entitled to relief on any of his claims.
A. Petitioner Did Not Timely File His Petition On Grounds One, Two, Three, Four, Five, and Six, But Ground Seven Is Timely Filed.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year limitations period for federal habeas claims by petitioners in state custody. 28 U.S.C. § 2244(d)(1). The limitations period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.Id. AEDPA includes a tolling provision for properly filed post-conviction actions:
The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.Id. at § 2244(d)(2).
1. The Petition is Untimely Under § 2244(d)(1)(A).
Unless a petitioner alleges facts implicating §§ 2244(d)(1)(B), (C), or (D), “[t]he limitations period generally runs from the date on which the state judgment became final[,] . . . but is tolled during the time state post-conviction review is pending.” Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) (citing §§ 2244(d)(1)(A), 2244(d)(2)). Petitioner's conviction and sentence became final when the United States Supreme Court denied Petitioner's petition for writ of certiorari. United States v. Willis, 202 F.3d 1279, 1280-81 (10th Cir. 2000). The one-year statute of limitations began the day after Petitioner's conviction became final. Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Accordingly, Petitioner had until May 19, 2021, to file his habeas petition, absent any tolling. See id. (noting the limitations period began the day after the judgment became final and ended one year later on the same day).
Petitioner's First Application for post-conviction relief, filed on March 31, 2021, did not serve to toll the one-year statute of limitations. The tolling provision in 28 U.S.C. § 2244(d)(2) provides that the one-year limitation period is tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . .” 28 U.S.C. § 2244(d)(2) (emphasis added). According to the Supreme Court, “[a]n application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings,” including “the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). State procedural law is applied to determine whether an application for state post-conviction relief is “properly filed.” Garcia v. Shanks, 351 F.3d 468, 471 (10th Cir. 2003). In this case, Petitioner's First Application was stricken from the record for failure to comply with the state district court's rules. (Doc. 23, at Ex. 39, at 1). Therefore, Petitioner's First Application was not “properly filed” and thus did not result in any statutory tolling of the limitations period. See Pratt v. Mullin, 175 Fed. App'x. 247, 249 (10th Cir. April 7, 2006) (unpublished op.) (implicitly agreeing with the district court's finding that § 2244(d)(2) tolling was inapplicable to petitioner's first post-conviction application which was stricken by the state district court because it exceeded the page limit established by local rule); Moore v. Parker, No. CIV-08-797-C, 2009 WL 113067, at *3 (W.D. Okla. Jan. 15, 2009) (denying tolling on same grounds).
Likewise, the First Petition for habeas relief, filed in this court on July 23, 2020, did not serve to toll the one-year statute of limitations. In Duncan v. Walker, 533 U.S. 167 (2001), the Supreme Court specifically held that a federal habeas petition is not an “‘application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)” and that § 2244(d)(2) does not serve to toll the AEDPA limitation period during the pendency of a previous federal habeas action. Id. at 181-82. See also Brown v. Poppel, 98 Fed.Appx. 785, 788 (10th Cir. 2004) (unpublished op.) (“[T]he filing and pendency of a federal habeas proceeding does not toll the one-year limitations period under § 2244(d)(2).”); Cross v. Bear, No. CV-15-133-D, 2015 WL 13741902, at *5 (W.D. Okla. Oct. 19, 2015), report and recommendation adopted, 2015 WL 7272245 (W.D. Okla. Nov. 17, 2015).
Because Petitioner did not file his Second Application for post-conviction relief in state court until September 30, 2021 - after the limitations period had already expired on May 19, 2021 - that effort likewise did not result in tolling under § 2244(d)(2). See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.”); Green v. Booher, 42 Fed.Appx. 104, 106 (10th Cir. 2002) (“[Petitioner's] state application [for postconviction relief] could not toll the federal limitation period, because he did not file it until after the one-year period had expired.”). Thus, Petitioner's instant habeas action, filed on February 9, 2022, is untimely under § 2244(d)(1)(A).
2. Section 2244(d)(1)(D) Applies To Petitioner's Ground Seven.
Under § 2244(d)(1)(D), the statute of limitations can begin to run on “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” However, “the limitations period begins to run when the petitioner knows of the facts giving rise to the habeas claim; it is not required that he or she understand the legal significance of those facts.” Klein v. Franklin, 437 Fed.Appx. 681, 684 (10th Cir. 2011) (citing Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).
Petitioner contends, and Respondent does not contest, that Petitioner's Ground Seven is timely because Petitioner did not learn of the facts giving rise to Ground Seven until March 26, 2021, upon the suspension of Judge Henderson. (Doc. 1, at 15; Doc. 23, at 21-22; id., at Ex. 40, at 12-16). Because the factual predicate of Ground Seven could not have been discovered by Petitioner until March 2021, Petitioner's Ground Seven is timely filed on February 9, 2022, for purposes of AEDPA.
3. Petitioner Is Not Entitled to Equitable Tolling or The Actual Innocence Exception.
With the exception of Ground Seven, Petitioner has not established any exception for his failure to comply with the one-year statute of limitations. Petitioner has the burden of proving that equitable tolling applies. Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011). Generally, “a [habeas] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Although Petitioner was arguably diligent in his efforts to obtain relief, he has not shown that extraordinary circumstances beyond his control prevented him from filing a timely federal habeas petition. Holland, 560 U.S. at 649. Petitioner contends that he was “on lockdown in solitary confinement, quarantined for extensive amounts of time without access to law library, legal materials whatsoever not to mention the courthouse was closed or shutdown for COVID 19 throughout the whole years of 2020-2021 ....” (Doc. 29, at 8). His numerous filings in state and federal court during this time period suggest otherwise. And to the extent he wrongly assumed his First Petition or First Application resulted in tolling, “it is well established that ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (denying equitable tolling).
Petitioner's only remaining path around the § 2244(d)(1)(A) deadline would be a viable actual innocence claim. “[A] credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief,” such as an otherwise-untimely petition. McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013). Petitioner does not argue that he is innocent of his crime in his Petition. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (An actual innocence claim “requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.”).
For the reasons discussed above, the undersigned recommends that Grounds One, Two, Three, Four, Five, and Six of the Petition be dismissed with prejudice as untimely filed.
B. Petitioner Has Not Shown Judicial Bias, And Ground Seven Should Be Denied.
In Ground Seven, Petitioner claims that the trial court abused its discretion when Judge Timothy Henderson “showed bias by favoring the female assistant district attorneys, ignoring the obvious statutory laws, constitutional laws.” (Doc. 1, at 15). Petitioner raised this claim in his Second Application for post-conviction relief (Doc. 23, at Ex. 40), which was denied by the state district court (id. at 41) and affirmed on appeal by the OCCA as procedurally barred (id. at Ex. 43). For the reasons stated below, the undersigned recommends denial of habeas relief on this ground.
1. Standard of Review
Generally, AEDPA requires deference by a federal court to a state court's adjudication of a claim on the merits. 28 U.S.C. § 2254(d), (e). However, “claims not ‘adjudicated on the merits' in state court are entitled to no deference.” Harmon v. Sharp, 936 F.3d 1044, 1057 (10th Cir. 2019) (quoting Fairchild v. Trammell, 784 F.3d 702, 71110 th Cir. (2015)).
Although raised in Petitioner's Second Application, this claim was not adjudicated on the merits, as the OCCA found the claim procedurally barred for not being raised on direct appeal. (Doc. 23, at Ex. 43, at 1). Respondent concedes that the OCCA's holding was incorrect because Petitioner could not have raised this issue in his direct appeal, which was filed in September 2017, when the sexual relationship between Henderson and certain prosecutors was not revealed until March 2021. (Doc. 23, at 22).
Thus, Respondent concedes, and the undersigned agrees, that in Petitioner's case, “federal habeas review of the claim is not barred, and this Court should apply de novo review without deference under 28 U.S.C. § 2254(d).” (Id.) See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (stating that “if the state court did not decide a claim on the merits, and the claim is not otherwise procedurally barred, we address the issue de novo and the § 2254(d)(1) deference requirement does not apply”). See also Cone v. Bell, 556 U.S. 449, 472 (2009) (observing that because the state court did not reach the merits of the petitioner's claim, federal habeas review was not subject to Section 2254(d) deference, and instead the claim would be reviewed de novo); Williams v. Trammell, 782 F.3d 1184, 1191 (10th Cir. 2015) (“We review de novo claims that the state court did not adjudicate on the merits.”).
2. Williams v. Pennsylvania Is The Clearly Established Law Regarding Judicial Bias.
“A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955). “Due process guarantees ‘an absence of actual bias' on the part of a judge.” Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (quoting Murchison, 349 U.S. at 136). Under clearly established federal law, the question is “not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, ‘the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.'” Id. (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009)) (internal quotation marks omitted). Recusal is required “when the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.” Caperton, 556 U.S. at 572 (internal quotation marks and citation omitted).
3. Petitioner Has Not Shown Judicial Bias .
Petitioner argues that that Judge Timothy Henderson “showed bias by favoring the female assistant district attorneys, ignoring the obvious statutory laws, [and] constitutional laws.” (Doc. 1, at 15). He argues that his “case pertains to the involvement of a judge whose inappropriate sexual relationships with numerous attorneys and courtroom staff, including prosecutors, is undisputed,” (Doc. 29, at 4), and he states that “the integrity of the judicial process in general and specifically to this case and every case from Judge Henderson's court is very much in question and at risk” (id. at 2).
Petitioner does not, however, argue that his prosecutors were involved in an inappropriate sexual relationship with Judge Henderson. Rather, Petitioner claims that Judge Henderson's actions “put[] more than an asterisk next to every conviction obtained in Judge Henderson's court - it calls each and every one into doubt regardless of the prosecutor(s) involved.” (Id. at 5). Nor does Petitioner attempt to identify any courtroom staff present at his criminal trial that were involved in an inappropriate sexual relationship with Judge Henderson, aside from claiming that “it might be easier to list the courtroom staff the judge was not sleeping with.” (Id. at 6).
The undersigned finds that the supposition that Judge Henderson would be biased in favor of female assistant district attorneys generally because of his inappropriate sexual relationships with unnamed female prosecutors and/or courtroom staff is too tenuous to establish a “constitutionally [intolerable” probability of bias. See Caperton, 556 U.S. at 572. Petitioner's “speculation, beliefs, conclusions, innuendo, suspicion, [and] opinion” are insufficient to establish judicial bias. Leatherwood v. Allbaugh, 861 F.3d 1034, 1050 (10th Cir. 2017) (quoting United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)).
Thus, Petitioner has not shown that he was denied due process through judicial bias by the trial court judge. Accordingly, Petitioner is not entitled to relief on Ground Seven.
IV. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the undersigned recommends that the Petition for habeas relief (Doc. 1) be DENIED on Ground Seven and DISMISSED WITH PREJUDICE on Grounds One, Two, Three, Four, Five, and Six.
The court advises the parties of their right to object to this Report and Recommendation by April 27, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The court further advises the parties that failure to make timely objection to this report and recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter..