Ellis v. Buchkoe, 73-1691.

• Decision Date: 06 February 1974
• Docket Number: No. 73-1691.,73-1691.
• Citation: 491 F.2d 716
• Parties: James ELLIS, Petitioner-Appellant, v. Raymond BUCHKOE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

491 F.2d 716 (1974)

James ELLIS, Petitioner-Appellant, v. Raymond BUCHKOE, Respondent-Appellee.

No. 73-1691.

United States Court of Appeals, Sixth Circuit.

Argued December 13, 1973.

Decided February 6, 1974.

James Ellis, pro se.

Frank J. Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Sol. Gen., Thomas A. Carlson, Asst. Atty. Gen., Lansing, Mich., on brief for respondent-appellee.

Before WEICK and MILLER, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

PER CURIAM.

This is an appeal from denial of a writ of habeas corpus by the district court. The petitioner, James Ellis, was convicted of first degree murder in the Michigan state courts. The petitioner admitted the homicide, but claimed that it resulted from his defense of another person. The jury, apparently unimpressed by his defense, found the petitioner guilty as charged.

After exhausting his state remedies, the petitioner filed his habeas corpus petition in the United States District Court for the Western District of Michigan, alleging fourteen errors. The district court referred the matter to a federal magistrate for a preliminary review, following which the magistrate submitted a Report and Recommendation dealing with and rejecting on their merits each of the claimed constitutional errors. While he examined no witnesses, he relied upon the transcript of the state court trial. The district court later heard an oral argument from petitioner's counsel but held no formal hearing and made no independent examination of the state transcript. He subsequently adopted the magistrate's recommendations and issued an order dismissing the petition.

The petitioner raises the same fourteen issues on appeal. Without reaching the merits, we are compelled to take notice of the propriety of the district court's reliance on the magistrate's Report and Recommendations in dismissing the petition. Although styled in the form of a Report and Recommendations, the document is actually an opinion disposing of the issues on their merits.¹

The Federal Magistrates Act of 1968, 28 U.S.C. §§ 631 to 639, provides in § 636(b):

Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to —

(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;

(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and

(3) preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.

This Court in Wedding v. Wingo, 483 F.2d 1131 (6th Cir. 1973) held that a United States Magistrate had no authority to conduct an evidentiary hearing on a habeas corpus petition. In so holding the Court stated:

The Act granted authority to the Magistrate to

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