United States District Court, D. Arizona
C. Bury United States District Judge
23, 2013, this matter was referred to a magistrate judge,
pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil
Procedure, and transferred to Magistrate Judge Eric J.
Markovich, on April 22, 2014. He issued a Report and
Recommendation (R&R) on May 27, 2016. (Doc. 30: R&R). He
recommends that the Petition for Writ of Habeas Corpus, filed
under 28 U.S.C. § 2241, be dismissed for failure to
exhaust administrative remedies.
duties of the district court, when reviewing a R&R from a
Magistrate Judge, are set forth in Rule 72 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The
district court may "accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge." Fed.R.Civ.P. 72(b), 28 U.S.C. §
636(b)(1). When the parties object to a R&R, "‘[a]
judge of the [district] court shall make a de novo
determination of those portions of the report or specified
proposed findings and recommendations to which objection is
made.'" Thomas v. Arn, 474 U.S. 140, 149-50
(1985) (quoting 28 U.S.C. § 636(b)(1)). When no
objections are filed, the district court does not need to
review the R&R de novo. Wang v. Masaitis,
416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v.
Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en
banc). To the extent that no objection has been made,
arguments to the contrary have been waived. McCall v.
Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to
object to Magistrate's report waives right to do so on
appeal); see also, Advisory Committee Notes to
Fed.R.Civ.P. 72 (citing Campbell v. United States Dist.
Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely
objection is filed, the court need only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation)).
parties were sent copies of the R&R and instructed they had
14 days to file written objections. 28 U.S.C. § 636(b),
see also, Federal Rule of Criminal Procedure 72
(party objecting to the recommended disposition has fourteen
(14) days to file specific, written objections). To date, the
Petitioner has not filed an objection to the recommendation
to dismiss the Petition.
Honorable Eric J. Markovich, United States Magistrate Judge,
rejected the Government's challenge to this Court's
jurisdiction because the Petition challenged the execution by
the Bureau of Prison (BOP) of the sentencing order and
judgment. Specifically, the Petition challenges the BOP's
scheduling of restitution payments, not the sentencing order
itself. Petitioner admitted he did not exhaust administrative
remedies available through BOP's internal mechanism for
addressing allegedly deficient restitution. In Ward v.
Chaves, 678 F.3d 1042, 1050 (9th Cir. 2012),
the court found that for a restitution order to be lawful
under 18 U.S.C. § 3664, the district court must set the
restitution schedule based on the financial circumstances of
the defendant, the BOP lacks the authority to collect the
award where the Court did not set out a proper payment
schedule. Subsequent, to Ward v. Chaves, the BOP
implemented protocols for addressing the very type of
grievance made by the Plaintiff in his Petition. Instead of
proceeding under those protocols, he filed his Petition.
Plaintiff's conclusory assertion that exhaustion would be
futile fails in light of the specifically developed BOP
protocol for addressing the Petitioner's claims.
there are no objections and review has, therefore, been
waived, the Court reviews at a minimum, de novo, the
Magistrate Judge's conclusions of law. Robbins v.
Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing
Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998)
(conclusions of law by a magistrate judge reviewed de novo);
Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir.
1991) (failure to object standing alone will not ordinarily
waive question of law, but is a factor in considering the
propriety of finding waiver)). The Court finds the R&R to be
thorough and well-reasoned, without any clear error in law or
fact. See United States v. Remsing, 874 F.2d 614,
617-618 (9th Cir. 1989) (citing 28 U.S.C. §
636(b)(1)(A), providing for district court to reconsider
matters delegated to magistrate judge when there is clear
error or recommendation is contrary to law). The Court
accepts and adopts the R&R as the opinion of the Court,
pursuant to 28 U.S.C. § 636(b)(1).
IT IS ORDERED that the Report and Recommendation (Doc. # 30)
is adopted as the opinion of the Court.
FURTHER ORDERED that the Clerk of the Court shall enter
FURTHER ORDERED that Plaintiff proceeding here in forma
pauperis under 28 U.S.C. § 2241, in the event the
Plaintiff files an appeal, the Court finds the appeal is not
taken in good faith because an appeal would be frivolous as
there is no substantial argument to be made contrary to this
Court's determination ...