Respondents Brief — Thomas v. Arn

: Office-Supreme Court, US,

FILED

Iu The Se

Supreme Court of the Huited States

OCTOBER TERM, 1984

KATHY THOMAS

Petitioner,

v. :

DOROTHY ARN, Superintendent,

Ohio Reformatory for Women,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STA) ES COURT OF APPEALS

| FOR THE SIXTH CIRCUIT

ee

BRIEF FOR RESPONDENT

ANTHONY J. CELEBREZZE, JR.

Atto.ney General of Ohio

RICHARD DAVID DRAKE

; Assistant Attorney Genera/

n Counsel! of Record

’ 30 East Broad Street, 10th Fioor

Columbus, Ohio 43215

(614) 466-2980

QUESTION PRESENTED

WHETHER, CONSISTENT WITH THE FEDERAL

MAGISTRATES ACT, A CIRCUIT COURT MAY

CONDITION APPELLATE REVIEW UPON THE

FILING OF OBJECTIONS TO THE RECOMMENDA-—

TION OF THE MAGISTRATE.

PARTIES

Pursuant to Rule 34.1(b) of the Rules of the

Supreme Court, all parties to this action are listed in the

caption of the case.

iii

TABLE OF CONTENTS

Page

eo. tc eee see ececees i

ee eee wp eeeeeceeeced ii

CO SE Pere 1

eee ced de eeeseecececs 1

CONSTITUTIONAL AND STATUTORY

ED oc ccc cc ceeccesecece 1

ee 7

SUMMARY OF ARGUMENT..................4.. 14

ARGUMENT

Consistent With The Federal Magistrates

Act, a Circuit Court May Condition

Appellate Review Upon The Filing Of

Objections To The Report Of The Mazgis-

eee ek ce ceeeeeeececes 15

re is ee eee ee sceceeese« 33

eg Ve ae 8 |) > eee 33

iv

TABLE OF AUTHORITIES

Page

Cases:

Britt v. Simi Valley School District,

708 F.2d 452 (9th Cir. 1983) ................ 16

Buhrle v. State,

Ge P.O VETS CUUVO. TEBE) 6. ccc ccc ccc ccess 32

Camby v. Davis,

719 F.20d.1G8 (4th Cir. 1963)... ccc ccs 15

Campbeil v. United States District Court,

501 F.2d 196 (9th Cir. 1974) ................ 22

Clark v. Ueberee Finanz-Korporation,

is a coe ie biebeee dt ones 26

Cupp v. Naughten,

ee Ss ba os Keeecaneecnc@eoenl 27

Engle v. Issac,

, § f. ia 8, 28, 32

Haas v. State,

103 Ohio St. 1, 132 N.E. 158 (1921) ........... 8

Hormel v. Helvering,

se oi i ed al ea 26

Ingram v. Richardson,

471 F.2d 1268 (6th Cir. 1972) ............... 17

Jackson v. Virginia,

te 30

John B. Hull, Inc. v. Waterbury Petroleum

Products Inc., 588 F.2d 24 (2nd Cir.

Pet edaes GGueduaehanckhesecéenns 15

Keener v. Ridenour,

594 F.2d 581 (6th Cir. 1979) ................ 28

Link v. Wabash Railroad Co.,

ee 27

Lorin Corp. v. Goto & Co.,

700 F.2d 1202 (8th Cir. 1983) ............... 16

Mathews v. Weber,

ee I ws . cu cocci scucteben 16, 25

7

TABLE OF AUTHORITIES cont’d

Page

McCall v. Andrus,

628 F.2d 1185 (9th Cir. 1980) ............... 16

McCarthy v. Mason,

714 F.2d 234 (2nd Cir. 1983)............. 15, 28

Messimer v. Lockhart,

ee E,W oc ccs ccnceeeenes 16

Nationa! Hockey League v. Metropolitan Hockey

Club, Inc., 427 U.S. 639 (1976) .............. 27

Nettles v. Wainwright,

677 F.2d 404 (5th Cir. 1982) (en banc)

ee te ee ee Ld a ee owe 16, 30

Park Motor Mart, inc. v. Ford Motor Co.,

616 F.2d 603 (1st Cir. 1980) ............. 15, 22

Patterson v. Mintzes,

717 F.2d 204 (6th Cir. 1963) ......... cc eeees 28

Singleton v. Wulff,

Eee. era 26

State v. Robbins,

58 Ohio St. 2d 74, 388 N.E. 2d 755

(iii. acai ne hen aae twee ees 6ds beeed 14

State v. Smith,

247 Ga. 612, 277 S.E. 2d 678 (1981).......... 32

State v. Thor as,

4 . | | ESREGESRSPSP SPP ara ar 1,8

State v. Thomas,

66 Ohio St. 2d, 423 N.E. 2d 137

i itwi 6 oe tesenden csedeusendaeeees 1,8

State v. Thomas,

13 Ohio App. 3d 211, 468 N.E. 2d 763

I ee a eta webbeoceeuned 32

Thomas v. Arn,

728 F.2d 813 (6th Cir. 1984) .............. 1, 12

T.P.O. v. McMillan,

460 F.2d 348 (7th Cir. 1972)... ... ccc eee eee: 17

United States v. Frady,

in cee sc eenan ene eee ee 28

vi

TABLE OF AUTHORITIES cont‘d

Page

United States v. Lewis,

621 F.2d 1382 (Sth Cir. 1980) ............... 15

United States v. Raddatz,

ee TS i os wins p60 Ute bbe d 21, 26

United States v. Schronce,

727 F.2d 91 (4th Cir. 1964)... ween 15

United States v. Walters,

638 F.2d 947 (6th Cir. 1981) ....... 12, 16, 27, 28

Wingo v. Wedding,

as kind « kebab see whe 17

Statutes:

ee EP IEEIOED 6 oc ccc ccestevencveeda 25

28 U.S.C. Section 636(b) ....... ae ee 2, 10, 21

Ze USC. Bastien GRICNS) nw ccc ccc cccccccccess 29

ey I oe Pe eb eae 1

Ee 27

ne ee os dd epkeeeeed i]

Ohio Revised Code Section 2903.02................ 7

Rules:

Rule 8(b), Rules Governing Section 2254 Cases

in the United States District Courts.......... 3, 10

Aule 72, Federal Rules of Civil Procedure............ 4

Miscellaneous Authorities:

Hearings on the Jurisdiction of United States

Magistrates, before the Subcommittee

on Improvements in Judicial Machinery

of the Senate Committee on the Judiciary,

94th Cong., Ist Sess. (1975) ........... 18, 21, 25

vii

TABLE OF AUTHORITIES cont’d

Page

H.R. Rep. No. 94-1609 (1976), reprinted in,

U.S. Code Cong. & Admin. News 1976,

0 te ee er ee

Annual Report of the Director of the Administrative

Office of the United States Courts (1980)....... 29

Annual Report of the Director of the Administrative

Office of the United States Courts (1983)....... 29

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Sixth Circuit is reported as Thomas v. Arn, 728

F. 2d 813 (6th Cir. 1984). (JA-61)' The decision of the

United States District Court for the Northern District

of Ohio, Eastern Division, is unreported. (JA-51). The

report and recommendation of the United States

Magistrate is unreported. (JA-37). The decision of the

Supreme Court of Ohio is reported as State v. Thomas,

66 Ohio St. 2d, 423 N.E. 2d 137 (1981). (JA-32a). The

decision of the Ohio Court of Appeals for the Eighth

Judicial District is reported as State v. Thomas, 17 Ohio

Ops. 397 (1980). (JA-9).

JURISDICTION

The decision of the United States Court of Appeals

for the Sixth Circuit was issued on March 9, 1984 and the

order denying rehearing was issued on June 25, 1984.

Jurisdiction is conferred by 28 U.S.C. Section 1254(1).

The petition for writ of certiorari was filed on

September 20, 1984. Certiorari was granted by order

of March 4, 1985.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The case involves Section 1 of Amendment XIV

to the Constitution of the United States:

‘References to the Joint Appendix of this brief are designated as

a he

SECTION 1. All persons born or natural-

ized in the United States, and subject ot

the jurisdiction thereof, are citizens of

the United States and of the State

wherein they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive

any person of life, liberty, or property,

without due process of law; nor deny

to any person within its jurisdiction the

equal protection of the laws.

The case also involves 28 U.S.C. Section 636(b)

which provides in pertinent part:

(1) Notwithstanding any provision of law to

the contrary—

(A) a judge may designate a magistrate

to hear and determine any pretrial matter

pending before the court, except a motion

for injunctive relief, for judgment on the

pleadings, for summary judgment, to

dismiss or quash an _ indictrnent or

information made by the defendant, to

suppress evidence in a criminal case, to

dismiss or to permit maintenance of a

class action, to dismiss for failure to state

a claim upon which relief can be granted,

and to involuntarily dismiss an action.

A judge of the court may reconsider any

pretrial matter under this subparagraph

(A) where it has been shown that the

magistrate’s order is clearly erroneous or

contrary to law.

(B) a judge may also designate a

magistrate to conduct hearings, including

evidentiary hearings, and to submit to a

judge of the court proposed findings of

fact and recommendations for the disposi-

tion, by a judge of the court, of any

motion excepted in subparagraph (A), of

applications for posttrial relief made by

individuals convicted of criminal offenses

and of prisoner petitions challenging

conditions of confinement.

(C) the magistrate shall file his

proposed findings and recommendations

under subparagraph (B) with the couri

and a copy shall forthwith be mailed to al!

parties.

Within te.: days after being served with a

copy, any party may serve and file written

objections to such proposed findings and

recommendations 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. A judge of the court may accept,

reject, or modify, in whole or in part, the

findings or recommendations made by the

magistrate. The judge may also receive

further evidence or recommit the matter to

the magistrate with instructions.

The case also involves Rule 8 of the

Governing Section 2254 Cases In The United States

District Courts which provides in pertinent part:

(B) Function of the Magistrate—

(1) When designated to do so in

accordance with 28 U.S.C. Section 636

Rules

(b), a magistrate may conduct hearings,

including evidentiary hearings, on the

petition, and submit to a judge of the

court proposed findings of fact and

recommendations for disposition.

(2) The magistrate shall file proposed

findings and recommendations with the

court and a copy shall forthwith be

mailed to all parties.

(3) Within ten days after being

served with a copy, any party may serve

and file written objections to such

proposed findings and recommendations

as provided by rules of court.

(4) A judge of the court shall make a

de novo determination of those portions

of the report or specified proposed find-

ings or recommendations to which objec-

tion is made. A judge of the court may

accept, reject, or modify in whole or in

part any findings or recommendations

made by the magistrate.

The case also involves Rule 72 of the Federal Rules

of Civil Procedure which provides:

(a) NONDISPOSITIVE MATTERS. A

magistrate to whom a pretrial matter not

dispositive of a claim or defense of a

party is referred to hear and determine

shall promptiy conduct such proceedings

as are required and when appropriate

enter into the record a written order

setting forth the disposition of the matter.

The district judge to whom the case is

assigned shal! consider objectioiis made by

the parties, provided they are served and

filed within 10 days after the entry of the

order, and shall modify or set aside any

portion of the magistrate’s order found

to be clearly erroneous or cortrary to

law.

(b) DISPOSITIVE MOTIONS AND

PRISONER PETITIONS. A magistrate

assigned without consent of the parties

to hear a pretrial matter dispositive of a

claim or defense of a party or a prisoner

petition challenging the conditions of

confinement shall promptly conduct such

proceedings as are required. A record

shall be made of all evidentiary proceed-

ings before the magistrate, and a record

may be made of such other proceedings

as the magistrate deems necessary. The

magistrate shall enter into the record a

recommendation for disposition of the

matter, including proposed findings of

fact when appropriate. The clerk shall

forthwith mail copies to all parties.

A party objecting to the recommended

disposition of the matter shall promptly

arrange for the transcription of the

record, or portions of it as all parties may

agree upon or the magistrate deems

sufficient, unless the district judge other-

wise directs. Within 10 days after being

served with a copy of the recommended

disposition, a party may serve and file

specific, written objections to the

proposed findings and recommendations.

A party may respond to another party's

objections within 10 days after being

served with a copy thereof. The district

judge to whom the case is assigned shall

make a de novo determination upon the

record, or after additional evidence, of

any portion of the magistrate’s disposition

to which specific written objection has

been made in accordance with this rule.

The district judge may accept, reject, or

modify the recommended decision,

receive further evidence, or recommit the

matter to the magistrate with instructions.

CASE NO. 84—5630

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

KATHY THOMAS

Petitioner,

v.

DOROTHY ARN, Superintendent,

Ohio Reformatory for Women,

Respondent.

STATEMENT OF THE CASE

Petitioner Kathy Thomas was indicted by the

January 1978 Term of the Cuyahoga County, Ohio,

Grand Jury on one count of murder in violation of Ohio

Revised Code Section 2903.02? The indictment

stemmed from the shooting death of petitioner's com-

mon-law husband. Subsequent to jury trial, petitioner

was found guilty as charged. Petitioner was sentenced

to a term of from fifteen (15) years to life imprison-

ment.*

Petitioner perfected a timely appeal as of right to

the Ohio Court of Appeals for the Eighth Judicial District.

In a split decision, the intermediate appellate court held

that the trial court had erred in excluding testimony con-

2The Ohio murder statute provides that “[nJo person shell purposely

cause the death of another.”

31m an unreleted proceeding, petitioner wes convicted of trafficking in

drugs. That conviction in not, however, challenged herein.

cerning the psychological characteristics of battered

women. The appellate court reversed and remanded for a

new trial. State v. Thomas, 17 Ohio Ops. 3rd 397

(1980). (JA-9).

The Supreme Court of Ohio thereafter granted

discretionary review. The sole issue raised by the

prosecution on appeal was “‘whether the trial court

committed reversible error by excluding testimony on the

subject of the ‘battered wife syndrome’ by an expert on

battered wives, where defendant pleaded self-defense to

killing her husband’’. (JA-33). In an unanimous opinion,

the Court held that:

Expert testimony on the “battered wife

syndrome” by a psychiatric social worker

to support defendant's claim of self-

defense is inadmissible herein because (1)

it is irrelevant and immaterial to the issue

of whether defendant acted in self-

defense at the time of the shooting; (2)

the subject of the expert testimony is

within the understanding of the jury; (3)

the “battered wife syndrome” is not

sufficiently developed as a matter of

commonly accepted scientific knowledge,

to warrant testimony under the guise of

expertise; and (4) its prejudicial impact

outweighs its probative value.

State v. Thomas, 66 Ohio St. 2d 518, 423 N.E. 2d 137

(1987) (syllabus by the court)* (JA-32a). In addition to

the general proposition of law contained in the syllabus,

the Court embraced the appellate court dissenting

opinion by stating:

4+-1m Ohio, the court's syllabus contains the controtling lew.” Engle

v. Issac, 456 US. 107, 111 n. 3 (1982), citing Haas v. State, 103 Ohio St. 1,

7-8, 132 N.E. 158, 159-160 (1921).

The cogent dissenting opinion in the

Court of Appeals of Judge Blanche

Krupansky in this case succinctly sets

forth eight reasons for the proper exciu-

sion of such expert testimony about the

“battered wife syndrome”’ as follows:

1. There was no proper proffer of expert

testimony.

2. Appellant’s [Defendant’s] expert had

no personal contact with appellant.

3. No hypothetical question was pro-

pounded to appellant’s expert witness.

4. There was no determination that

appellant was in fact a battered woman.

5. Analysis of the issues raised was within

the reaim of the jury.

5. The trial court’s jury charge more than

7. There was no prejudice to appellant.

8. The trial court did not abuse its discre-

tion. 66 Ohio St. 2d at 519 n. 1. (JA-

32b).

The Supreme Court of Ohio thus reinstated petitioner's

Petitioner, through counsel,> thereafter filed a

petition for writ of habeas corpus pursuant to 28 U S.C.

Section 2254 with the United States District Court for

the Northern District of Ohio, Eastern Division. Therein,

petitioner asserted four (4) grounds for habeas corpus

relief. By order, then District Judge Leroy Contie, Jr.,®

Spoth in the state and the federsi judiciary, petitioner has at all times

Deen represented by the same attorney.

Spuring the pendency of the district court action, Judge Contie was

appointed to the United States Court of Appeais for the Sixth Circuit.

16

referred the matter to United States Magistrate Charles R.

Laurie for preparation of a report and recommendation

pursuant to the requisites of 28 U.S.C. Section 636(b)(1)

and Rule 8(b) of the Rules Governing Section 2254 Cases

In The United States District Courts. (Docket Entry 4,

JA-1). Relevant portions of the state court record,

including the almost two thousand page trial transcript,

were thereafter filed and reviewed by the Magistrate in

conjunction with the briefs of the parties.

On May 11, 1982, the Magistrate issued a report and

recommendation which recommended that the petition

for writ of habeas corpus be dismissed. (JA-37). The

Magistrate’s report and recommendation contained the

following prominent admonition and warning:

ANY OBJECTIONS to this Report and

Recommendation must be filed with the

Clerk of Courts within ten (10) days of

receipt of this notice. Failure to file

objections within the specified time

waives the right to appeal the District

Court’s order. See: United States v.

Walters, 638 F. 2d 947 (6th Dir. 1981).

(JA-50).

The parties were served with copies of the Magistrate's

report and recommendation. On May 24, 1982, peti-

tioner filed a motion for an extension of time in which to

file objections to the Magistrate’s report and recommenda-

tion. (Docket Entry 12, JA-2). On May 28, 1982, Judge

Contie issued an order granting petitioner an extension

through June 15, 1982 in which to file objections. How-

ever, almost three (3) months passed and petitioner

neither filed objections nor otherwise indicated that any

objections would be forthcoming.

11

On September 3, 1982, Judge Contie sua sponte

issued an order finding petitioner's claims to be without

merit and dismissing the petition. (JA-51). Therein,

Judge Contie reviewed the chronology of events and

stated:

By Order this Court referred this matter

to a United States Magistrate for his

report and recommendation on July 29,

1981. The Magistrate filed his report and

recommended disposition on May 11,

1982. The Magistrate recommends that

Kathy Thomas’ petition be denied with

regard to all four listed grounds for relief.

The petitioner filed a motion for exten-

sion of time to file objections to the

Magistrate’s report and recommendation.

This motion was granted and the peti-

tioner was given until June 15, 1982. The

petitioner, however, has failed to file

objections. (JA-51).

A judgment entry dismissing the action was filed on

September 3, 1982. (JA-60). On November 1, 1982,

petitioner filed a ‘“‘motion for leave to file notice of

appeal’’. (Docket Entry 17, JA-2). The motion was

granted by District Judge David Dowd by order dated

November 24, 1982. (Docket Entry 18, JA-2). Peti-

tioner filed a notice of appeal on February 2, 1983.

(Docket Entry 20, JA-2).

Petitioner’s appeal was thereafter docketed in the

United States Court of Appeals for the Sixth Circuit.

Petitioner filed a brief which presented only one of the

four (4) claims that had been asserted in her habeas

corpus petition, i.e., that the state trial court had erred

12

in refusing to allow the testimony of a social worker as an

expert witness on “battered wife syndrome”. Respon-

dent’s brief raised two separate and distinct issues.

Respondent initially argued as a threshold matter that the

unexplained failure of petitioner to comply with the ex-

press notice contained in the Magistrate’s report and

recommendation constituted a waiver of appeal as

enunciated in the circuit court’s opinion in United

States v. Waiters, 638 F.2d 947 (6th Cir. 1981). Respon-

dent secondarily argued that petitioner’s sole substantive

claim was not cognizable in a federal habeas corpus

action as it, at most, presented an evidentiary question

wholly within the province of the state judiciary. Peti-

tioner did not file a reply brief or otherwise address the

waiver issue.

The Court of Appeals subsequently issued a notice

of oral argument to counsel for the parties. Petitioner's

attorney, however, informed the circuit court that he

would not be in attendance at the oral argument.

Consequently, oral argument was not held and the appeal

was decided on the briefs. The Court of Appeals was

thus afforded neither written nor oral explanation for

petitioner's failure to file objections as mandated by the

warning contained in the Magistrate’s report and recom-

mendation.

On March 9, 1984, the Court of Appeals issued an

opinion affirming the lower court judgment. Thomas v.

Arn, 728 F. 2d 813 (6th Cir. 1984). The circuit court

stated its rationale as follows:

Jurisdiction over the parties and subject

matter is appropriate pursuant to 28

U.S.C. Section 2241. The court, however,

faces the threshold issue raised by the

respondent of whether Thomas waived

13

her right to appeal due to her failure to

file objections to the report and recom-

mendation of the magistrate.

In United States v. Walters, 638 F. 2d

947 (6th Cir., 1981), this court held

that “’. . .a party shall file objections

[to a magistrate’s report] with the district

court or else waive right to appeal.”’ /d. at

950. But see Britt v. Simi Valley Unified

School District, 708 F. 2d 453, 454 (9th

Cir. 1983). The holding in Walters

announced over a year before the report

in this case was filed, was given prospec-

tive application, and accordingly, is

applicable to this action. As required by

Wa/ters, the report at issue here contained

a warning to the parties that failure to file

objections within ten days would result in

a waiver of the right to appeal the judg-

ment of the district court. 728 F. 2d at

814-815. (JA-62).

Petitioner thereafter filed a petition for rehearing. As the

sole justification for having failed to adhere to the warn-

ing contained in the Magistrate’s report and recommenda-

tion, petitioner’s attorney stated that “’[c] ounsel is the

one who screwed up.”’ (Petition for Rehearing at page 4).

No elaboration was given. By order dated June 25, 1984,

the Court of Appeals denied rehearing. (JA-65). This

Court granted petitioner’s ensuing petition to a writ of

certiorari by order dated March 4, 1985. (JA-66).

The facts which gave rise to petitioner’s murder

conviction have been exhaustively chronicled in the

various opinions of both the state and federal judiciary.

Petitioner admitted to having killed her common-law

— —

14

husband by shooting him once in the forehead and once

in the arm. Petitioner, however, claimed that the shoot-

ing was in self defense. Evidence admitted at trial was

indicative of physcial abuse inflicted upon petitioner

through the course of their stormy three year relation-

ship. At trial, petitioner testified that she shot her

common-law husband because he was coming toward her

and she was in grave fear. In statements made at the

scene of the crime, however, petitioner told police

officers that she and the victim had argued about burned

fish and a pawn ticket. He then shoved her down on a

couch and walked away and sat down in a chair. Peti-

tioner related to the officers that she then picked up a

gun, walked over to the co.ch, and stated “I’ve had

enough.”’ She then shot him twice as he sat in the chair.

While petitioner’s trial testimony was consistent with

self defense under Ohio law, the version of the events

recounted at the crime scene clearly were not. See

State v. Robbins, 58 Ohio St. 2d 74, 388 N.E. 2d 755

(1979). The jury apparently credited that account of the

activity made more contemporaneously to the events

themselves.

SUMMARY OF ARGUMENT

Congress enacted the Federal Magistrates Act as a

response to the massive increase in the caseload of the

federal judiciary. Magistrates were empowered to issue

dispositive rulings in cases subject to the proviso that a

party could obtain de novo review by a district judge

if the litigant filed timely objections to those portions of

the Magistrate’s proposed disposition to which the

litigant took objection. Congress thus intended to

maximize the assistance which Magistrates could provide

in reducing congested dockets while accomodating

Article |I| concerns by providing litigants the opportunity

15

to obtain de novo review. This system would aid district

judges by either disposing of the litigation in its entirety

or, upon the filing of specific objections, narrowing the

scope of the parties’ dispute.

A reversal of the judgment below would defeat the

congressional intent underlying the Federal Magistrates

Act by permitting a litigant to essentially appeal an

adverse Magistrate’s recommendation directly to a Court

of Appeals. Such holding would simply shift the primary

Article Il! oversight function from the district courts to

the appellate courts. Morever, upon the facts of the

instant case, a reversal by this Court would erode the

inherent supervisory power of a circuit court to sanction

an unexplained refusal to comply with the court’s direc-

tive.

ARGUMENT

The question presented in this case is whether a

United States Court of Appeals may, consistent with

the Federal Magistrates Act, condition appellate review of

a district court judgment upon the filing of objections to

a report and recommendation issued by a United States

Magistrate. The question is one which has divided the

circuit courts. With slight variations,’ the First, Second,

Fourth, Fifth, Sixth, Ninth and Eleventh Circuits have

held that the failure to file objections to a Magistrate’s

report and recommendation results in the waiver of

appellate consideration. See, respectively, Park Motor

Mart, Inc. v. Ford Motor Co., 616 F. 2d 603 (1st Cir.

1980); John B. Hull, Inc. v. Waterbury Petroleum

Products, Inc. 588 F.2d 24 (2nd Cir. 1978), McCarthy v.

Manson, 714 F. 2d 234 (2nd Cir. 1983); United States v.

Schronce, 727 F.2d 91 (4th Cir. 1984), Camby v. Davis,

719 F. 2d 198 (4th Cir. 1983); United States v. Lewis,

Tsome circuits make a distinction between appellate review of factual

determinations versus that of legal conciusions. Others emphasize the need

for an express notice to the litigants as to the consequence of the failure to

file objections.

16

621 F. 2d 1382 (5th Cir. 1980); United States v. Walters,

638 F. 2d 947 (6th Cir. 1981); McCa// v. Andrus, 628 F.

2d 1185 (9th Cir. 1980); Britt v. Simi Valley School

District, 708 F. 2d 452 (9th Cir. 1983); Nettles v. Wain-

wright, 677 F. 2d 404 (5th Cir. 1982) (en banc) (Unit B)

(now the United States Court of Appeals for the Eleventh

Circuit). The Eighth Circuit has held to the contrary.

Lorin Corp. v. Goto & Co., 700 F. 2d 1202 (8th Cir.

1983); Messimer v. Lockhart, 702 F. 2d 729 (8th Cir.

1983}. The issue is of national significance as reversal of

the judgment below would be tantamont to a declaratior

that disaffected litigants may, in effect, appeal an adverse

Magistrate’s report and recommendation directly to a

Court of Appeals. Such result would both defeat the

stated purposes of the Federal May.strates Act and

markedly increase the caseloads of what are already

congested circuit court dockets. An examination of

congressional intent, coupled with considerations of long

standing rules of appellate practice, dictates an affirmance

of the judgment of the Court of Appeals below.

1. The Legislative History Of The Federal

Magistrates Act Demonstrates That The

Failure To File Objections To A Magis-

trate’s Report And Recommendation

Constitutes A Waiver Of Further Review.

“After several years of study, the Congress in 1968

enacted the Federal Magistrates Act."’ Mathews v. Weber,

423 U.S. 261, 267 \1976). The Act abolished the office

of United States Commissioner and created a new

echelon of the federal judiciary. The Act was prompted

by a congressional recognition that a massive increase in

the caseload of the federal courts mandated either a

dramatic increase in Article ||| judgeships or the establish-

ment of a system of non-Article |!!! judicial officers who

17

could assist their Article ||| counterparts. The 1968 Act

was, however, met with a series of adverse judicial deci-

sions which severely limited the authority of Magistrates

and concommittedly impeded their ability to assist

Article II! judges. See, e.g., Wingo v. Wedding, 418

U.S. 461 (1974) (Magistrates held unable to conduct

evidentiary hearings in habeas corpus cases); 7.P.O. v.

McMillan, 460 F. 2d 348 (7th Cir. 1972) (Magistrates

held unable to hear dispositive motions in civil cases);

Ingram v. Richardson, 471 F. 2d 1268 (6th Cir. 1972)

(Magistrates held unable to make proposed findings of

fact and conclusions of law in social security cases).

Faced with such decisions, Congress accepted the

challenge of the Chief Justice and Justice White when

they stated ”. . .it is now for the Congress to act to

restate its intentions if its declared objectives are to be

carried out.” Wingo v. Wedding, 418 US. at 487. (dis-

senting opinion). This language prompted the 1976

Amendments to the Federal Magistrates Act.

Extensive congressional hearings were thereafter

held. input was received from a variety of sources ir.

cluding the Judicial Conference of the United States, the

Administrative Office of the United States Courts, and a

substantial number of federal judges. in hearings held on

S. 1283, Subcommittee Chairman Senator Burdick

stated:

In hearings held by this subcommittee on

the Omnibus District Court Judgeship bill

in the last Congress, the chief judges of

44 of the 94 Federal judicial districts

personally appeared and testified before

the subcommittee.

The overwhelming majority of the chief

judges who testified stated that the

18

magistrates were of great assistance to

the court in handling certain pretrial

matters in both civil and criminal cases

and were of the greatest assistance to the

court in handling petitions brought by

prisoners from both State and Federal

institutions.

Hearings on the Jurisdiction of United States Magistrates

before the Subcommittee on Improvements in Judicial

Machinery of the Senate Committee on the Judiciary,

94th Cong., Ist Sess. p. 1 (1975) (hereinafter Senate

Hearings). As initially introduced S. 1238 would have

amended 28 U.S.C. Section 636(b) to read as follows:

(b)(1) Notwithstanding any provision of

law to the contrary, a judge may designate

@ magistrate to hear and determine,

subject to review as hereinafter provided,

any pretrial matter pending before the

tive of the litigation, the disposition of

but not order. A judge may also designate

a magistrate to conduct evidentiary hear-

ings and make recommendations for the

disposition of applications for post trial

relief made by individuals convicted of

challenging conditions of confinement.

Upon timely request, as fixed by local

rule of court, by any party who has

appeared before the magistrate, either

personally or by submissions of affidavits

or brief, the court shall hear de novo those

portions of the report or specific proposed

findings of fact or conclusions of law to

which objection is made.

19

Subsequent to conference with representatives of the

Judicial Conference of the United States, Amendment

No. 589 was accepted and S. 1238 was altered to read

as follows:

(b)(1) Notwithstanding any provision of

law to the contrary

(A) a judge may designate a magistrate to

hear and determine, any pretrial matter

pending before the court, except a motion

for injunctive relief, for judgment on the

pleadings, for summary judgment, to

dismiss or quash an _ indictment or

information made by the defendant to

suppress evidence in a criminal case,

dismiss or to permit maintenance of a

class action, and to involuntarily dismiss

an action for failure to prosecute or for

failure to comply with an order of the

court. A judge of the court may rehear

any pretrial matter under the subsection

where it has been shown that the magis-

trate’s order is clearly erroneous or

contrary to law.

(B) a judge may also designate a magis-

trate to conduct hearings, including

evidentiary hearings, and to submit to a

judge of the court proposed findings of

fact and recommendations for the disposi-

tion, by 2 judge of the court, of any

motion excepted in subsection (A), of

applications for post-trial relief made by

individuals convicted of criminal offenses

and of prisoner petitions challenging

conditions of confinement.

(C) the magistrate shal! file his proposed

findings and recommendations under sub-

paragraph (B) of this subsection with the

clerk of the court, who shall forthwith

mail a copy to all parties. Within twenty

days after being served with notice of the

filing, any party may serve and file

written objections to such proposed find-

ings and recommendations together with a

motion applying to the court for action

on such proposed findings and recom-

mendations. The motion shall be deter-

mined by a judge of the court who may

accept, reject or modify, in whole or in

part, the findings or recommendations

made by the magistrate. The judge may

also receive further evidence or recommit

the matter to the magistrate with instruc-

tions.

The amendment simply clarified the distinction between

a Magistrate’s authority to adjudicate non-dispositive

versus dispositive matters. With respect to non-dispositive

matters, a Magistrate was empowered to make a final

determination subject only to a “clearly erroneous or

contrary to law” standard of review by the district court

judge upon objection of a party. in the context of

dispositive matters, a Magistrate was empowered to issue

only proposed findings of fact and conclusions of law.

/f a party filed objections to the proposed disposition, it

was incumbent upon the district court judge to conduct

a de novo review. Congress thus afforded litigants the

opportunity to obtai.. review anew by the district judge.

Congress was keenly aware of perceived Article |!

problems and, when S. 1238 was forwarded to the House,

the House Judiciary Committee clarified the Senate

intentions by adding the “de novo determination”

21

language presently in 28 U.S.C. Section 636(b). United

States v. Raddatz, 447 U.S. 667, 674-675 (1980), citing

H.R. Rep. No. 94-1609 (1976) reprinted in, U.S. Code

Cong. & Admin. News 1976, p.6163. The Congress thus

intended to give Magistrates the maximum allowable

authority to aid the district judge in the ultimate disposi-

tion of cases while, at the same time, accommodating

Article ||! concerns by providing litigants the opportunity

for “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. Section 636(b)

(1)(c). (emphasis added). The rationale was that objec-

tions would be made infrequently, thus disposing of the

litigation in its entirety, or that objections would be

made to only a portion of the Magistrate’s report,

thereby narrowing the scope of the dispute for

determination by the district judge. Drawing upon the

experience of the English system, the Judicial Conference

of the United States stated:

By requiring that a district judge conduct

a de novo hearing on any specific objec-

tion raised by any party, proposed sub-

section (b)(1) may well generate some

duplication of effort in a particular case.

However, the experience to date on the use

of magistrates in several United States

district courts and the report of the role

of masters in the English courts are

persuasive thet there will be, overall, a

considerable savings of the time of district

judges, since objections will normally be

made only in a relatively few instances.

Senate Hearings, p. 37.

Petitioner cites a reference in the House Report

to the decision in Campbel/ v. United States District

Court, 501 F. 2d 196 (9th Cir. 1974) for the proposition

that “Congress clearly intended that the district judge

fully review legal issues even though objections were not

filed.” This precise argument was considered and

rejected by the circuit court in Park Motor Mart, Inc. v.

Ford Motor Co., 616 F. 2d 603 (1st Cir. 1980). Therein,

the circuit court correctly reasoned as follows:

Basically, the dispute between the parties

centers upon the effect of the phrase

“may serve and file written objections.”

Defendants assert that a party may

decide not to file, but that filing is obliga-

tory if he is dissatisifed. Plaintiffs’

position is that the district court has a

losing party need file objections only if

he wishes a hearing.

Next, and most important, we see in the

mination’ with respect to matters “to

not. This seems a typical case of expressio

unius est exciusio alterius See United

States v. MBTA, 614 F.2d 27, 1 Cir.,

1980.

Neither can it be said that if objection is

made there will be a redetermination de

novo, but if none is made there should

still be a review, but of a lesser character.

A lesser standard of review, “clearly

erroneous Or contrary to law,” is explicitly

provided for in subsection (b)(1)(A)

cases See ante. The absence of such a

prov on here seems a speaking silence.

Turning to the general purpose of the

Statute, we see no reason for implying

an obligation to review when a review has

not been requested. The purpose of the

Federal Magistrates Act is to relieve courts

of unnecessary work. Since magistrates

are not Article Ii! judges, it is necessary

to provide for a redetermination by the

court, if requested, of matters falling

within subsection (b)(1)(B). To require

it if not requested would defeat the main

purpose of the Act. It is not burdensome

on the parties to require such a request.

We conclude *+*t a party “may” file

objections within ven days or he may not,

as he chooses, but he “shall” do so if he

wishes further consideration.

Finally, we have reviewed the legislative

history, but see no point in discussing it in

detail. We do not consider a single

sentence, contained in a long quotation in

1976 U.S. Code. Cong. & Admin. News,

24

pp. 6162, 6163, from Campbell v. United

States Dist. Court, 9 Cir., 1974, 501 F.2d

196, 206, cert. denied, 419 US. 879,

95 S.Ct. 143, 42 L.Ed.2d 119, “If neither

party contests the magistrate’s proposed

findings of fact, the court may assume

their correctness and decide the motion

on the applicable law,’’ as contradicting

our conclusions herein. 616 F.2d at 604-

605. (footnote omitted).

The resolution of the First Circuit is fully supported by

the legislative history of the 1976 Amendments. In

explaining the operation of the statute, District Judge

Metzner, Chairman of the Judicial Conference Committee

on the Administration of the Federal Magistrates System,

testified as follows:

When you are talking about magistrates,

you are talking about people within the

system, within the very same building. |

can best give you an example as to how

we do it to show you how simple it is.

Copies of the magistrate’s report are

sir, ultaneously sent to the judge and to

counsel by the magistrate. That report

has a concluding paragraph in it which

says that if you have any objections to

this report, you shall file them with the

court within ten days.

These papers are then taken by my

secretary and held for 12 days. We do

not hold them to the strict 10-day rule.

If any objections come in, she brings the

papers in to me and | review them and

decide it. If no objections come in, |

merely sign the magistrate’s order.

It is as simple as that. Senate Hearings,

p. 11.

The Administrative Office of the United States Courts,

the statutory body that supervises the administrative

aspects of the Federal Magistrates Act pursuant to 28

U.S.C. Section 604(d)(1), reads the Act the same way.

That Office stated:

Where a magistrate submits a report or

recommendation to a judge, the parties

should receive copies of the report and

recommendation.

The parties shall be allowed a reasonable

time within which to raise specific objec-

tions to the report and recommendation.

Where a magistrate makes a finding or

ruling on a motion or an issue, his deter-

mination should become that of the

district court, unless specific objection is

filed within a reasonable time. Senate

Hearings, p. 24.

The interpretation of the Administrative Office is not

without significance. Mathews v. Weber, 423 U.S. at 272

n. 7.

Of prime import, is that the interpretation urged by

petitioner would wholly frustrate the very purpose of the

1976 Amendments. Congress sought to maximize the

assistance provided to district judges without running

afoul of Article 11! proscriptions. To that end, Congress

provided that Magistrates could rule on dispositive

motions subject to the proviso that a litigant was afforded

the opportunity to obtain a de novo determination /f the

party exercised the option to do so. The legislation

clearly anticipated that Magistrates would issue recom-

mendations in a variety of contexts where pure “‘factual”’

issues are wholly absent, i.e., a motion to dismiss for

failure to state a claim upon which relief can be granted.

To argue that Congress, absent objections to the Magis-

trate’s recommended disposition, intended to require a

district judge to sua sponte redetermine such legal conclu-

sions is to pervert the legislative history and defeat the

Congressional intent of the 1976 Amendments. As stated

in a similar context, this Court should not “impute to

Congress a purpose to paralyze with one hand what it

sought to promote with the other.” United States v.

Raddatz, 447 U.S. 676 n. 3 (1980), citing, Clark v.

Ueberee Finanz-Korporation, 332 U.S. 480, 489 (1947).

11. A Federal Court Of Appeals May, Con-

sistent With General Principles Of Appel-

late Procedure And Its Inherent Super-

visory Powers, Decline To Review Issues

On Appeal Which Were Waived By An

Unexplained Failure To File Objections

With The Federal District Court Where

The Party Seeking To Raise Such Issues

Was Afforded Express Notice Of The

Consequences Of Such Procedural Default.

it is a well established rule that a Court of Appeals

will not consider an issue which was not preserved for

review in the lower court. Singleton v. Wu/ff, 428 US.

106, 120 (1976); Horme/ v. Helvering, 312 U.S. 552

(1941). It is equally well established that a Court of

27

Appeals is vested with inherent supervisory authority to

require compliance with “procedures deemed desirable

from the viewpoint of sound judicial practice although

in nowise commanded by statute or by the Constitution.’’

Cupp v. Naughten, 441 U.S. 141, 146 (1973). Moreover,

the unexplained disobediance of a judicial warning or

order such as that contained in the Magistrate’s report in

the instant case warrants appropriate sanction where the

court has given a litigant notice of the consequences of

his refusal to comply. See, generally, Link v. Wabash

Railroad Co., 370 U.S. 626 (1962); National Hockey

League v. Metropolitan Hockey Club, Inc., 427 U.S. 639

(1976). While any one of the aforementioned factors

compels affirmance of the judgment below, the instant

case presents a flagrant violation of all three principles.

Petitioner’s contention that the court below failed

to exercise its jurisdiction or has otherwise erected a

“jurisdictional barrier’’ to that jurisdiction conferred by

Congress pursuant to 28 U.S.C. Section 2253 is simply

untenable. The circuit court in United States v. Walters,

supra., expressly stated that the decision was premised

“through the exercise of our supervisory power.” 638

F.2d at 950. Moreover, the opinion herein upon review

specifically state that “[j]urisdiction over the parties

and subject matter is appropriate pursuant to 28 U.S.C.

Section 2241." Thomas v. Arn, 728 F.2d at 814. (JA-

62). The action of the court below was predicated upon

an unexpiained procedural default rather than an unlawful

refusal to exercise its appellate jurisdiction. That a Court

of Appeals has jurisdiction over the subject matter of a

habeas corpus appeal does not in all instances mean that

the appellate court should resolve a substantive issue

which has been forfeited by procedural default.2 Com-

pare, Engle v. Isaac, 456 U.S. 107 (1982). Finally,

petitioner’s purported reliance upon an unreported

opinion of the United States Court of Appeals for the

Sixth Circuit is unfounded as that court itself has

expressly held that such unreported decisions are without

precedential value. Keener v. Ridenour, 594 F.2d 581,

588-589 (6th Cir. 1979).

Petitioner’s due process argument is equally unavaii-

ing. The warning contained in the Magistrate’s report

could not have more clearly or simply given specific

notice of the consquences which would attend upon a

failure to file objections.? Petitioner’s blithe assertion

that the warning “had not registered . . . as a bar to

appeal”’ is nothing short of sheer sophistry. No equal

protection concerns exist as the rule applies equally to

any litigant who seeks review of a Magistrate’s report.

See, e.g., McCarthy v. Manson, 714 F.2d 234 (2nd Cir.

1983) (rule applied against the State of Connecticut in a

habeas corpus proceeding).

B8such is not to state that a rule of procedural default should in every

case prove inflexible. The Sixth Circuit has itself excused the failure to file

timely objections upon a showing of cause and in order to prevent manifest

injustice. See Patterson v. Mintzes, 717 F.2d 284 (6th Cir. 1983). This

Court has likewise considered and promulgated standards of review in cases

of procedural default. United States v. Frady, 456 U.S. 152 (1982). Here,

the court below was not so much as afforded a proffer of any cause for the

procedural default.

9 indeed, the court in United States v. Walters, supra, was sensitive to

any arguable due process concerns and expressly held that the rule would

apply only prospectively and only where the litigant was afforded specific

notice such as that given herein. 638 F.2d at 950.

Reversal of the judgment below would be tanta-

mount to a declaration that a party dissatisfied with a

Magistrate’s recommended disposition may by-pass the

oversight function of an Article II! district judge and

appeal directly to a federal circuit court. Such a ruling

would be contrary to law as Congress has provided for

such appeals only in narrow circumstances which are not

herein presented. See 28 U.S.C. Section 636(c)(3).

Moreover, such a holding would have a devastating

impact upon the already over-burdened dockets of the

Courts of Appeals. The Annual Report of the Director

of the Administrative Office of the United States Courts

(1980) (hereinafter Annual Report) reflects that in the

year ending June 30, 1980, Magistrates handled 283,217

total matters. Annual Report, p. 10. Magistrates issued a

report and recommendation pursuant to the provisions of

28 U.S.C. Section 636(b)(1) in 11,578 prisoner peti-

tions,"° 4,213 social security cases, 5,810 other civil

“dispositive’’ matters and 1,485 criminal “dispositive’’

matters. Annual Report, p. 120. The number of prisoner

petitions filed in the district courts increased 37.3 per-

cent from 1975 to 1980. Annual Report, p. 62. In 1980,

23,200 appeals were filed in the Courts of Appeals

amounting to a 14.7 percent increase over appeals filed

in 1979 and a nearly 100 percent increase over those

filed in 1970. In contrast, the number of authorized

circuit court judgships increased only 36 percent in that

same ten year period. Annual Report, p. 1. In 1980,

prisoner petition appeals constituted 11.5 percent of the

total appeals in the Courts of Appeals.'' Of primary

in the year ending June 30, 1983, the number of Magistrates’

recommendations issued in prisoner cases increased to 18,543. Annual

Report, p. 198 (1983 Edition.).

"in 1983, prisoner petition appeals actually increased to 16.3 per-

cent of the overall! circuit court filings. Annual Report, p. 102, (1983 Edi-

tion.).

import is the unequal distribution and disparate impact

of prisoner petition appeals. Such appeals ranged from

an almost incredible 38.9 percent of the total filines in

the Fourth Circuit to les than 1 percent of filings in the

District of Columbia. A remarkable 56.3 percent of all

prisoner petition appeals were concentrated in the

Fourth, Fifth (now the Fifth and Eleventh) and Sixth

Circuit Courts of Appeals. Annual Report, p. 46. It is

noteworthy that these circuits which are most affected

have all embraced the waiver principle which is the

subject of the instant controversy. This Court has itself

had occasion to remark upon the strain placed upon the

circuit court judges faced with an ever increasing infiux

of prisoner appeals. Jackson v. Virginia, 443 U.S. 307,

338, n. 13 {1979) (dissenting opinion).

The Federal Magistrates Act was in large measure

intended to serve as a filtration system designed to

narrow the scope of litigation and thus more clearly

delineate the issues in dispute. These policy considera-

tions were perhaps best summarized in Nettles v. Wain-

wright, 677 F. 2d 404 (Sth Cir. 1982) (en banc) (Unit B)

wherein the fully assembled court unanimously stated:

it is arguable that, when no objections are

filed, the parties have accepted the magis-

trate’s report and have consented to his

recommendations. if a party has objec-

tions, it is essential that he apprise the

district court. Judicial efficiency and the

objectives of the Magistrates Act dictate

that the district judge must be aware of

any objections to the report in order to

properly comply with the duties under

section 636(b)(1)(B).

Furthermore, no undue burden exists in

requiring an attorney or a pro se litigant

to state his objections, if any, to the

district court. We are not asking a litigant

to give up his right to appeal, only to

perfect it. We note that attorneys are

officers of the court and are, therefore, in

some part implicitly responsible for the

by stating their objections is a smal! order.

It is even smalier when weighed against

the consequences to their clients (or

themselves if pro se) of having the circuit

court refuse to entertain their arguments

on appeal based on error in the magis-

trate’s report. We will not sit idly by and

observe the “sandbagging’’ of district

judges when an appeliant fails to object to

@ Magistrate's report in the district court

and then undertakes to raise his objec-

tions for the first time in this court.

Magistrates Act. Petitioner was given an express warning

of the consequences which would attend upon disobedi-

ence of the court's admonition. Given petitioner's

wholly unexplained failure to comply, the court below

clearly had inherent authority to enforce the procedural

requisite.

itt. The Constitution Does Not Demand That

A State Permit Testimony cegarding The

“Battered Wife Syndrome”

“A petition for writ of habeas corpus should be

dismissed if it merely attaches a constitutional label to

factual allegations that do not describe a violation of any

constitutional right.” Engle v. /saac, 456 U.S. at 136

(Stevens J.. concurring). Such is the case with peti-

tioner’s substantive claim. The Due Process Clause

does not serve as a license whereby the federal! judiciary

may substitute its judgment regarding evidentiary rules

upon a state judiciary. Under our system of federalism,

mere evidentiary questions, e.g., the admission of poly-

graph results, are issues solely relegated to the states.

The various jurisdictions are in disagreement as to

whether testimony regarding the “battered wife

syndrome” should be admissible. See, e.g.. Buhrie v.

State, 697 P.2d 1374 (Wyo. 1981); State v. Smith, 247

Ga. 612, 277 S.E. 2d 678 (1981). Such divergence is not,

however, uncommon. The State of Ohio does, in fact,

provide for the admission of expert testimony con-

cerning the unique state of mind of an abused woman in

a self defense context where such testimony is offered by

an examining psychiatrist. See State v. Thomas, 13 Ohio

App. 3d 211, 468 N.E. 2d 763 (1983). That Ohio does

not permit the testimony of a social worker who has

never met with the accused does not violate a federally

secured right and is thus not properly the subject of

habeas corpus petition.

CONCLUSION

For all the aforementioned reasons, the judgment of

the Court of Appeals should be affirmed.

Respectfully submitted,

ANTHONY J. CELEBREZZE_ JR.

Attorney Genera/ of Ohio

RICHARD DAVID DRAKE

Assistant Attorney Genera/

Counsel of Record

State Office Tower

30 East Broad Street, 10th Floor

Columbus, Ohio 43215

(614) 466-2980

ATTORNEYS FOR RESPONDENT

CERTIFICATE OF SERVICE

| hereby certify that the requisite number of copies

of the foregoing Brief for Respondent has been forwarded

to petitioner, Kathy Thomas, through the office of her

counsel, Christopher D. Stanley, Attorney at Law, 902

Rockefeller Building, Cleveland, Ohio, 44113, via the

U.S. mail, the day of June, 1985. | further

certify that all parties required to be served has been

served. Petitioner's address is the Ohio Reformatory for

Women at Marysville, Ohio.

RICHARD DAVID D AKE

Assistant Attorney Genera/