Opinion
CASE NO. 5:12-cr-50050
09-11-2017
UNITED STATES OF AMERICA PLAINTIFF v. CODY JAMES MALONE DEFENDANT
ORDER
Currently before the Court is the Report and Recommendation ("R&R") (Doc. 35) filed on July 17, 2017, by the Honorable Erin L. Wiedemann, United States Magistrate Judge for the Western District of Arkansas, regarding Defendant's Motion to Modify Sentence (Doc. 33). Also before the Court is Defendant's objection to Magistrate Judge Wiedemann's R&R (Doc. 36). For the reasons given below, the R&R is ADOPTED and the Defendant's Motion to Modify is DENIED.
"Federal Rule of Civil Procedure 72(b)(2) allows a party to file [specific] objections" to a magistrate judge's report and recommendation. Torres v. Colvin, 2014 WL 12569339, at *1 (W.D.Ark. Feb. 26, 2014). A district court may then review the magistrate judge's report and recommendation and any pertinent objections. See 28 U.S.C. § 636(b)(1) ("A [district] judge . . . shall make a de novo determination of those portions of the [magistrate's] report or specified proposed findings or recommendations to which objection is made. A judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."). De novo review grants a reviewing court the right to conduct an "independent review" of the matter. Salve Regina College v. Russell, 499 U.S. 225, 238 (1991) (citing Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 501 (1984)).
In Branch v. Martin, the Eighth Circuit indicated that de novo review is only required if a party's objections are "specific enough to trigger de novo review." 886 F.2d 1043, 1046 (8th Cir. 1989). Absent any specific objection, a district court should review a magistrate judge's report and recommendation for clear error. Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996). However, in Belk v. Purkett the same court "emphasized the necessity of de novo review" and established that "retention by the district court . . . over the ultimate disposition of matters" is preferred. 15 F.3d 803, 815 (8th Cir. 1994) (asserting that, even if an objection lacks specificity, a district court should conduct de novo review in matters where the record is brief); Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (noting that § 636(b)(1) should be "liberally construed" to require de novo review in a majority of instances in which a party objects to a magistrate judge's report and recommendation).
Defendant asked for his time served in state custody to run concurrent to his federal sentence. (Doc. 33) ("I was convicted by the state . . . with the Judge[']s orders to run my time concurrent in the Federal Bureau of Prisons."). The R&R properly noted that a state court's intent is not binding on federal courts. See Doc. 35, p. 3 (citing Elwell v. Fisher, 716 F.3d 477, 482 (8th Cir. 2013)). Defendant's objection does not challenge Magistrate Judge Wiedemann's R&R on its face and thus does not merit de novo review. See Doc. 36. It appears that Defendant simply requests the opportunity to petition the Bureau of Prisons to designate a location for him to serve his federal sentence, which is his prerogative. Id. Nevertheless, pursuant to Belk and out of an abundance of caution, the Court has conducted a de novo review of the record and adopts Magistrate Judge Wiedemann's R&R. 15 F.3d at 815 (citing Branch, 886 F.2d at 1046) ("Failure to conduct de novo review when required is reversible error.")
For the foregoing reasons, the Court finds that Magistrate Judge Wiedemann's R&R is proper and should be and hereby is ADOPTED IN ITS ENTIRETY. Accordingly, for the reasons stated in Magistrate Judge Wiedemann's R&R, Defendant's Motion to Modify (Doc. 33) is DENIED.
IT IS SO ORDERED on this 11th day of September, 2017.
/s/_________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE