Dawson v. Marshall

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD E. DAWSON,  No. 06-56454

Petitioner-Appellant,

v.  D.C. No.

CV-04-00431-SGL

JOHN MARSHALL,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

Stephen G. Larson, District Judge, Presiding

Argued and Submitted

December 17, 2008—Pasadena, California

Filed February 9, 2009

Before: Cynthia Holcomb Hall, Diarmuid F. O’Scannlain,

and Richard A. Paez, Circuit Judges.

Opinion by Judge O’Scannlain

1459

DAWSON v. MARSHALL 1461

COUNSEL

Peter R. Afrasiabi, Turner Green LLP, Costa Mesa, Califor-

nia, argued the cause for the appellant and filed the briefs.

Heather M. Heckler, Deputy Attorney General for the State of

California, Sacramento, California, argued the cause for the

appellee and filed the brief. Edmund G. Brown, Jr., Attorney

General of the State of California; Dane R. Gillette, Chief

Assistant Attorney General; Julie L. Garland, Senior Assistant

Attorney General; and Jennifer A. Neill, Supervising Deputy

Attorney General; were also on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

May an Article III judge decide a habeas petition on which

he had issued findings and recommendations in his prior

capacity as a magistrate judge?

I

Donald Dawson is serving a term of 26 years to life for the

first degree murder of his ex-wife in the mid-1980s. In July

of 2001, Dawson sought parole from the California Board of

1462 DAWSON v. MARSHALL

Paroles, which found him unsuitable. After unsuccessfully

petitioning for a writ of habeas corpus in California state court

to overturn the board’s denial, Dawson filed a habeas petition

in the Central District of California pursuant to 28 U.S.C.

§ 2254.

In 2005, then-Magistrate Judge Stephen Larson issued a

Report and Recommendation (“R&R”) in Dawson’s habeas

case, recommending denial. Dawson filed objections and

sought review before the assigned district judge under 28

U.S.C. § 636. The following year, Judge Larson was commis-

sioned by President George W. Bush as a United States Dis-

trict Judge for the Central District of California and was

reassigned Dawson’s case in his new capacity. In August of

2006, now-District Judge Larson issued an order and judg-

ment dismissing Dawson’s petition. In that order, Judge Lar-

son did not adopt the R&R he had written as a magistrate

judge, but rather issued a separate 18-page order in which he

did not reference his previous R&R.

Dawson appealed, and ultimately we issued a memorandum

disposition affirming the denial of Dawson’s habeas petition.

Dawson then petitioned for panel rehearing. We granted

rehearing and invited additional briefing on whether Judge

Larson’s role as both magistrate judge and district judge war-

rants reversal and reassignment of the case to another district

judge. By separate order, we have withdrawn our earlier

memorandum disposition, which we replace with this opinion.1

II

[1] Section 636 outlines the jurisdiction, powers, and tem-

porary assignments of magistrate judges. The statute permits,

but does not require, a district judge to designate a magistrate

1

In a concurrently filed memorandum disposition, we address Dawson’s

additional challenges to the district court’s decision. See Dawson v. Mar-

shall, No. 06-56454 (9th Cir. Feb. 9, 2009).

DAWSON v. MARSHALL 1463

judge to submit proposed findings or recommendations for the

disposition of a case. If that happens,“any party may serve

and file written objections to such proposed findings and rec-

ommendations as provided by rules of court. A judge of the

court shall make a de novo determination of those portions of

the report or specified proposed findings or recommendations

to which objection is made.” 28 U.S.C. § 636(b)(1)(C)

(emphasis added).

[2] Thus, even though the district judge need not refer a

case to a magistrate judge, see id. § 636(b)(1)(B) (stating a

[district] judge “may” designate a magistrate judge to submit

a proposed findings and recommendation to the district

judge), once he does and once there is a proper objection, the

district judge “shall make a de novo determination,” id.

§ 636(b)(1)(C). As we said of this statute in a related context,

“[b]y utilizing the words ‘shall’ and ‘may’ in consecutive sen-

tences, Congress clearly indicated that district courts are

required to make a de novo determination of the portions of

the magistrate judge’s report to which a party objects.” United

States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000). So, too,

with the use of ‘shall’ and ‘may’ in close proximity. Read this

way, § 636 straightforwardly balances judicial efficiency and

due process. See Roell v. Withrow, 538 U.S. 580, 588-89

(2003) (internal quotation marks and citations omitted) (“In

giving magistrate judges case-dispositive civil authority, Con-

gress hoped to relieve the district courts’ mounting queue of

civil cases and thereby improve access to the courts for all

groups. At the same time, though, Congress meant to preserve

a litigant’s right to insist on trial before an Article III district

judge insulated from interference with his obligation to ignore

everything but the merits of a case.”).

III

Dawson argues that the district court violated the require-

ment of § 636 that it make a “de novo determination” of the

magistrate judge’s recommendations. The meaning of de novo

1464 DAWSON v. MARSHALL

review, according to Dawson, precludes the de novo reviewer

—the district judge—from being the same person as the one

whose work is being reviewed—the magistrate judge. This

denial of full de novo review, he adds, amounts to a denial of

his right to have an Article III judge hear his case.

A

[3] De novo review means that the reviewing court “do[es]

not defer to the lower court’s ruling but freely consider[s] the

matter anew, as if no decision had been rendered below.”

United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988).

Dawson argues that Judge Larson could not have performed

such a review because no one can consider anew one’s own

work. He cites no authority for this proposition. We have

never suggested such an exacting psychological precision,

although, of course, a situation like the one before us is rare.

Nor does the statutory language require that the magistrate

judge and the district judge be different people.

[4] Dawson would have us draw an analogy between the

respective roles of the magistrate and the district judge and

the roles of an associate and partner in a law firm. Just as an

associate may not be as thorough and careful as the partner

would be because he knows that the partner must make the

final decision, Dawson urges, so the magistrate judge’s analy-

sis is not complete because he leans on the backstop of the

district judge. But even if we accepted the analogy, it would

cut the other way. That is, it explains why the same person

would perform a different kind of review in his capacity as a

district judge than he did as a magistrate judge, despite his

familiarity with the case. Indeed, in this case District Judge

Larson did not simply adopt his previous R&R, but produced

a separate, 18-page opinion.

B

[5] As far as the strictures of the Constitution are con-

cerned, the crucial fact is that an Article III judge reviewed

DAWSON v. MARSHALL 1465

the case and rendered judgment. As the government points

out, reference to a magistrate judge is entirely discretionary.

See 28 U.S.C. § 636(b)(1)(A)-(B) (“a judge may designate”

(emphasis added)). The litigant has no right to a magistrate

judge but only to an Article III judge. See Commodity Futures

Trading Comm’n v. Schor, 478 U.S. 833, 848 (1986) (“Article

III . . . safeguard[s] litigants’ right to have claims decided

before judges who are free from potential domination by other

branches of government.” (internal quotation marks and cita-

tion omitted)).

[6] Thus, this case is substantively indistinguishable from

the situation in which no magistrate judge ever made recom-

mendations, but instead the case remained with the district

judge for disposition, without the magistrate judge’s R&R.

The latter case, of course, would pose no problem. The only

difference here is the depth of Judge Larson’s pre-existing

familiarity with the case.

C

[7] Although Judge Larson’s role in this case violated no

law and denied Dawson no right, the practice of district

judges reviewing cases on which they previously sat as mag-

istrate judges is not desirable. Although Judge Larson’s role

in this case was proper, there is a problem of appearances.

Therefore, in our supervisory capacity over the district courts

of this Circuit, we suggest that district courts avoid assigning

new district judges to cases they handled as magistrates. See

Thomas v. Arn, 474 U.S. 140, 146-47 (1985) (“[The Supreme]

Court has acknowledged the power of the courts of appeals to

mandate procedures deemed desirable from the viewpoint of

sound judicial practice although in nowise commanded by

statute or by the Constitution.” (internal quotation marks

omitted)); United States v. Rubio-Villareal, 967 F.2d 294,

298, (9th Cir. 1992) (“In prescribing a rule applicable only to

the conduct of personnel within the judicial branch, we act in

1466 DAWSON v. MARSHALL

a sphere where the scope of our supervisory power is at its

apex.” (internal quotation marks omitted)).

IV

For the foregoing reasons, the district court’s dismissal of

Dawson’s habeas petition is

AFFIRMED.