United States District Court, D. Arizona
C. Collins Chief United States District Judge
before the Court are: (1) the Pro Se Petition under 28 U.S.C.
§ 2241 for Writ of Habeas Corpus by a Person in Federal
Custody (“Petition”)(Doc. 1); (2) Respondents
Return and Answer thereto (Doc. 9); (3) Petitioner's
Combined Reply and Motion to find Respondent in Default (Doc.
(4) Petitioner's Motion to Expedite for a Summary
Judgment (Doc. 19); (5) Petitioner's Motion for Order to
Produce (Doc. 20); (6) Petitioner's Motion to Supplement
the Record (Doc. 21); (7) Magistrate Judge Bruce G.
Macdonald's Report and Recommendation
(“R&R”)(Doc. 22); and (8) Petitioner's
Objection to the Magistrate's R&R (Doc. 23).
duties of the district court in connection with a R & R
are set forth in Rule 72 of the Federal Rules of Civil
Procedure and 28 U.S.C. § 636(b)(1). A district court
may “accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.”
Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1).
the parties object to an R & R, “[a] judge of the
[district] court shall make a de novo determination of those
portions of the [R & R] to which objection is
made.” 28 U.S.C. § 636(b)(1); see Thomas v.
Arn, 474 U.S. 140, 149-50 (1985). “[T]he
magistrate judge's decision…is entitled to great
deference by the district court.” U.S. v.
Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). The
Court will not disturb a magistrate judge's order unless
his factual findings are clearly erroneous or his legal
conclusions are contrary to law. 28 U.S.C. §
636(b)(1)(A). A failure to raise an objection waives all
objections to the magistrate judge's findings of fact.
Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).
Factual Background and Procedural History
Court has reviewed the record, and finds the factual
background and procedural history in this matter to be
thoroughly detailed in Magistrate Macdonald's R&R.
See Doc. 22 at 2-7. Petitioner's objection(s) to the
R&R, explained in more detail in the section below, are
not directed at the Magistrate's findings in these
sections. Accordingly, this Court accepts, adopts, and fully
incorporates, by reference, these sections of the R&R
into this Order. See United States v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003); Thomas v. Arn,
474 U.S. 140, 149 (1985) (“[Section 636(b)(1) ] does
not ... require any review at all ... of any issue that is
not the subject of an objection.”); Fed.R.Civ.P.
72(b)(3) (“The district judge must determine de novo
any part of the magistrate judge's disposition that has
been properly objected to.”).
does not object to the R&R's recommendations
regarding the various motions he filed after filing the
Petition. Accordingly, the Court is relieved of its
obligation to review these de novo. See Reyna-Tapia,
328 F.3d at 1121; Thomas, 474 U.S. at 149.
does object to the Magistrate's “logic,
and understanding of controlling case law” with respect
to his Petition under 28 U.S.C. § 2241. See Doc. 23 at
1. More specifically, Petitioner debates the R&R's
conclusion that due process was satisfied with respect to the
disciplinary hearing at issue in this case because, according
to Petitioner, there was “NO EVIDENCE” supporting
Disciplinary Hearing Officer (“DHO”)
Petricka's ultimate determination. See Doc. 23 at 2
(emphasis in the original). Although Petitioner acknowledges
the existence of the inculpatory written report issued by the
reporting officer (which was considered by the DHO),
Petitioner dismisses the report as “NOT EVIDENCE,
” and urges the Court to assess and condemn the
reporting officer's credibility. Id. at 1-2.
Finally, Petitioner urges this Court to consider other
exculpatory evidence of his sobriety. Id. at 3.
Court has reviewed the record de novo in this matter and
finds Macdonald's analysis and conclusions of law to be
well-reasoned and supported.
noted in the R&R, the requirements of due process are
satisfied if some evidence in the record supports the
contested disciplinary decision, and “[a]scertaining
whether this standard is satisfied does not require
examination of the entire record, independent assessment of
the credibility of the witnesses, or weighing of the
evidence.” Superintendent, Mass. Corrections Inst.
V. Hill, 472 U.S. 445, 455-56 (1985). Petitioner cites
no case law supporting his assertion that a reporting
officer's written report “IS NOT EVIDENCE.”
Doc. 23 at 1 (emphasis in the original). Moreover,
Petitioner's position that the fails to account for the
other evidence considered by the DHO - namely the photograph
of the item in question. The Court need not, and will not
reassess the credibility of the witnesses or reweigh the
evidence, as urged by Petitioner. Further, although the Court
will grant Petitioner's Motion to Supplement the Record,
the Court agrees with the Magistrate's recommendation
that nothing therein alters ...