Bowman v. Bordenkircher, 74-1018

Decision Date04 August 1975
Docket NumberNo. 74-1018,74-1018
Citation522 F.2d 209
PartiesGene N. BOWMAN, Sr., Appellant, v. Donald E. BORDENKIRCHER, Jr., Warden of the West Virginia State Penitentiary, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

John F. O'Donnell, student counsel (Larry J. Ritchie, Washington, D. C., court-appointed, Raymond A. Jacobsen, Jr., student counsel, and Georgetown University Law Center, on brief), for appellant.

E. Leslie Hoffman, III, Asst. Atty. Gen. (Chauncey H. Browning, Jr., Atty. Gen., and Richard E. Hardison, Deputy Atty. Gen., on brief), for appellee.

Before WINTER and WIDENER, Circuit Judges, and THOMSEN, Senior District Judge.

THOMSEN, Senior District Judge.

Petitioner below (Bowman) appeals from the denial by the district court of the relief requested in his petition for habeas corpus challenging his conviction of first degree murder after a jury trial in a state court in West Virginia. Along with his pro se petition, which was quite articulate, Bowman sent to the district court several exhibits, including a printed transcript of the proceedings at his trial.

Bowman's petition was referred by the district judge to a magistrate, who reviewed the petition, the trial transcript and the other exhibits filed by petitioner. On October 10, 1973, the magistrate sent to the district judge his "Report-Recommendation", in which he discussed all grounds for relief asserted by Bowman, and recommended to the district judge that the relief requested be denied, without requiring an answer or a hearing. On October 16 the district judge entered an order in which he stated that he had carefully gone over the petition, and reviewed the report and recommendation of the magistrate and all material relevant thereto, and ordered that the report and recommendation be filed and approved, and that the petition and the relief sought be denied.

I

Bowman challenges this procedure, arguing: (1) that it involves an unconstitutional delegation of judicial power to a non-judicial officer; (2) that a magistrate has no authority to decide substantive issues of law; (3) that the district judge must conduct an independent review of the petition, personally inspect the state court record and all other documents which may be relevant to the controversy, and review the magistrate's report and recommendation to be sure that it is full and fair to both sides; and (4) that an opportunity should be given to petitioner to comment upon the magistrate's report after it has been submitted.

(1) No judicial power was delegated to the magistrate; he was asked to do and did no more than judges' law clerks customarily do.

(2) The magistrate did not decide any substantive issue of law, but recommended to the judge how the issues should be decided, again as law clerks customarily do.

(3) We agree that the judge must himself review the entire record before the district court, consider the magistrate's report, and satisfy himself that the recommended disposition is fair and proper. In this case the district judge stated in his order that he had done so. There was no unconstitutional delegation of judicial power. United States ex rel. Henderson v. Brierley, 468 F.2d 1193 (3 Cir. 1972).

(4) Where, as in this case, the only material considered by the magistrate was the material submitted by petitioner, there is no more reason for the judge to submit the magistrate's recommendation to the petitioner than there would be for the judge to submit his law clerk's recommendation to the petitioner. If the judge concludes that any additional facts or arguments should be...

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25 cases
  • Tucker v. Moore
    • United States
    • U.S. District Court — District of South Carolina
    • 15 Marzo 1999
    ...of this district concerning reference to a magistrate judge. See United States Magistrates, Local Rule 73.02, D.S.C.; Bowman v. Bordenkircher, 522 F.2d 209 (4th Cir.1975). Under 28 U.S.C. § [a] judge of the court shall make a de novo determination of those portions of the report or specifie......
  • Freeman v. Harris, Civ. A. No. 79-1624.
    • United States
    • U.S. District Court — District of South Carolina
    • 13 Febrero 1981
    ...findings or recommendations." United States ex rel. Henderson v. Brierley, 468 F.2d 1193 (3d Cir. 1972). See Bowman v. Bordenkircher, 522 F.2d 209 (4th Cir. 1975). Both of the parties to the present action have submitted objections to certain portions of the magistrate's On August 7, 1978, ......
  • Wood v. Schweiker, Civ. A. No. 77-94-8.
    • United States
    • U.S. District Court — District of South Carolina
    • 12 Abril 1982
    ...Park Motor Mart, Inc. v. Ford Motor Co., No. 79-1514 (1st Cir. March 11, 1980). See 28 U.S.C. § 636(b)(1)(B). Bowman v. Bordenkircher, 522 F.2d 209 (4th Cir. 1975). Cf. United States v. Walters, 638 F.2d 947 (6th Cir. 1981) (failure to object to magistrate's report constitutes a waiver of t......
  • Mixon v. ATTORNEY GENERAL OF STATE OF SC
    • United States
    • U.S. District Court — District of South Carolina
    • 13 Abril 1982
    ...denied, 441 U.S. 966, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979); Schleicher v. Wyrick, 529 F.2d 906 (8th Cir. 1976); Bowman v. Bordenkircher, 522 F.2d 209 (4th Cir. 1975). Under 28 U.S.C. § 636, a judge of the court shall make a de novo determination of those portions of the report or specified......
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