Gioiosa v. U.S., No. 82-1077

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: BOWNES
• Citation: 684 F.2d 176
• Parties: Edward Albert GIOIOSA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Decision Date: 09 July 1982
• Docket Number: No. 82-1077

Page 176

684 F.2d 176 Edward Albert GIOIOSA, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee. No. 82-1077. United States Court of Appeals,
First Circuit. Argued May 6, 1982.
Decided July 9, 1982.

Page 177

Karnig Boyajian, Boston, Mass., for petitioner-appellant.

Marianne B. Bowler, Asst. U. S. Atty., Boston, Mass., with whom William F. Weld, U. S. Atty., Boston, Mass., was on brief, for respondent-appellee.

Before PHILLIPS, ^* Senior Circuit Judge, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

Edward Albert Gioiosa appeals the district court's denial, 525 F.Supp. 1241, of his motion pursuant to the federal habeas corpus statute, 28 U.S.C. § 2255, to vacate a conviction. Gioiosa's conviction was based on his plea of guilty made to a charge of knowingly and intentionally possessing with intent to distribute and distributing a quantity of a Schedule IV controlled substance in violation of 21 U.S.C. § 841(a)(1) ¹ and 18 U.S.C. § 2. ² Some of the facts of this case are set out in United States v. One 1974 Porsche 911-S, 682 F.2d 283, also decided today. In his motion to vacate, Gioiosa attacked his guilty plea on three grounds:

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an unconstitutional search and seizure of evidence from his codefendants, an involuntary plea, and ineffective assistance of counsel (these last two points are related). A federal magistrate first heard Gioiosa's motion, which gives rise to the central question in this appeal, the nature of the district court's review of a magistrate's report and recommendation.

The magistrate recommended denial of Gioiosa's motion. He rejected the fourth amendment claim because Gioiosa had made no showing that the search and seizure had induced or coerced his guilty plea, the only avenue of attack in a § 2255 motion, and because Gioiosa had no "standing" to object to the search and seizure. The magistrate also believed that Gioiosa's counsel's decisions and actions were reasonable, and, although his report does not deal directly with the voluntariness of the plea, he suggested that Gioiosa was not coerced into making it. The magistrate did recommend that that part of Gioiosa's sentence imposing a special parole term be vacated. The district court, proceeding on the basis that "(t)he findings of the Magistrate must be accepted unless they are clearly erroneous," adopted the magistrate's recommendation and denied the motion.

The district court, however, was required to make a de novo determination of Gioiosa's claims. The magistrate was empowered to hear this § 2255 motion under 28 U.S.C. § 636(b)(1)(B), ³ and under this section of the Magistrates Act, the district court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. See Garcia v. Cruz de Batista, 642 F.2d 11, 13 n.2 (1st Cir. 1981) (dictum); Orand v. United States, 602 F.2d 207, 208-09 (9th Cir. 1979); Cowan v. Keystone Employee Profit Sharing Fund, 449 F.Supp. 235, 236 (D.Mass.), aff'd, 586 F.2d 888 (1st Cir. 1978); cf. Coolidge v. Schooner California, 637 F.2d 1321, 1325-27 (9th Cir.), cert. denied, 451 U.S. 1020, 101 S.Ct. 3011, 69 L.Ed.2d 392 (1981) (requiring de novo review of civil trial held before magistrate); Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352, 355-56 (5th Cir. 1980) (same); United States v. Marshall, 609 F.2d 152, 155-56 (5th Cir. 1980) (district court must review transcript of suppression hearing before reversing magistrate); Hill v. Jenkins, 603 F.2d 1256, 1258-59 (7th Cir. 1979) (requiring de novo review of civil trial held before magistrate). This direction is repeated in Rule 8(b)(4) of the Rules Governing Proceedings in the United States District Courts Under Section 2255 of Title 28, United States Code. ⁴ Gioiosa filed detailed objections to the magistrate's report and recommendation on his three claims, but the district court applied the "clearly erroneous" standard. ⁵ This was error.

The government suggests that we can nevertheless uphold the district court's order because "de novo determination" does not mean "de novo hearing" and the district court's review of the evidence and submissions

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was careful enough to render its use of the "clearly erroneous" standard harmless. The government is correct on the first point, United States v. Raddatz, 447 U.S. 667, 674-76, 100 S.Ct. 2406, 2411-2412, 65 L.Ed.2d 424 (1980), but, even assuming that "clearly erroneous" review could sometimes be harmless, we cannot conclude that the district court mislabeled as not "clearly erroneous" what was actually a de novo determination. The district court stated that it found "no such 'clear error' " in the magistrate's report, but it gave no indication of going any further into the report. Given the brevity of the district court's review, we can only accept its words at face value, that it applied the "clearly...