Hernandez v. Estelle, No. 82-1326

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, REAVLEY and JOLLY; PER CURIAM
Citation711 F.2d 619
PartiesAlvaro L. HERNANDEZ, Jr., Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. Summary Calendar.
Docket NumberNo. 82-1326
Decision Date08 August 1983

Page 619

711 F.2d 619
Alvaro L. HERNANDEZ, Jr., Petitioner-Appellant,
v.
W.J. ESTELLE, Jr., Director, Texas Department of
Corrections, Respondent-Appellee.
No. 82-1326
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Aug. 8, 1983.

C. Larry Mathews, Jr., First Asst. Federal Public Defender, El Paso, Tex., for petitioner-appellant.

W. Barton Boling, Asst. Atty. Gen., El Paso, Tex., for respondent-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, REAVLEY and JOLLY, Circuit Judges.

PER CURIAM:

This habeas appeal follows the determination by the district court, based on a magistrate's report, that the guilty plea entered by the petitioner to a charge of attempted escape from the Pecos County Jail in Fort Stockton, Texas, 1 and theft of the jailer's automobile was not involuntarily induced.

The petitioner claimed that the guilty plea entered was involuntarily induced through "physical violence, threats, coercion, subterfuge, and restricted food rations." After unsuccessfully pursuing his habeas claim in state court, the petitioner filed his petition in federal court, where it was assigned to a magistrate. The magistrate held a three-day evidentiary hearing involving numerous factual disputes and filed a twenty-five page report recommending denial of the habeas petition. The petitioner filed timely objections to the magistrate's report. These objections were based, inter alia, on the credibility determinations made by the magistrate. Based on

Page 620

the magistrate's report, the district court filed a memorandum opinion and order in May 1982 denying the habeas petition. This order was entered prior to the time the transcript of the evidentiary hearing was prepared. 2

Because it appears that the district court's approval of the magistrate's report did not constitute a de novo review of the portions of the magistrate's report to which the petitioner objected, as required by 28 U.S.C. § 636(b)(1), we remand this case to the district court for such de novo review based on the now-available transcript of the hearing.

In 28 U.S.C. § 636(b)(1), it is provided that "[a] judge of the court shall make a de novo determination of those portions of the [magistrate's] report or specified proposed findings or recommendations to which objection is made."

While the Supreme Court has indicated that it is not necessary that the district court hold a de novo hearing under section...

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870 practice notes
  • Jackson v. Goord, No. 97 CV 7149(GBD)(MHD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 21, 2009
    ...those portions to which objections were made. Nelson v. Smith, 618 F.Supp. 1186, 1189-90 (S.D.N.Y.1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983)). When no objections to a report are made, the Court may adopt the report if there is no clear error on the face of the rec......
  • Perez-Rubio v. Wyckoff, No. 84 Civ. 8229(RJW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 10, 1989
    ...at its own, independent conclusion about those portions of the magistrate's report to which objection is made." Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983). To this end, the Court must "exercise ... sound judicial discretion with respect to whether reliance should be pl......
  • Chen v. New Trend Apparel, Inc., No. 11 Civ. 324(GBD)(MHD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 27, 2014
    ...those portions to which objections were made. Nelson v. Smith, 618 F.Supp. 1186, 1189–90 (S.D.N.Y.1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983)). When no objections to a Report are made, the Court may adopt the Report if “there is no clear error on the face of the re......
  • Coronado v. Lefevre, No. 87 Civ. 2539 (RJW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 1, 1990
    ...at its own, independent conclusion about those portions of the magistrate's report to which objection is made." Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983). To this end, the court must "exercise ... sound judicial discretion with respect to whether reliance should be pl......
  • Request a trial to view additional results
870 cases
  • Jackson v. Goord, No. 97 CV 7149(GBD)(MHD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 21, 2009
    ...those portions to which objections were made. Nelson v. Smith, 618 F.Supp. 1186, 1189-90 (S.D.N.Y.1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983)). When no objections to a report are made, the Court may adopt the report if there is no clear error on the face of the rec......
  • Perez-Rubio v. Wyckoff, No. 84 Civ. 8229(RJW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 10, 1989
    ...at its own, independent conclusion about those portions of the magistrate's report to which objection is made." Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983). To this end, the Court must "exercise ... sound judicial discretion with respect to whether reliance should be pl......
  • Chen v. New Trend Apparel, Inc., No. 11 Civ. 324(GBD)(MHD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 27, 2014
    ...those portions to which objections were made. Nelson v. Smith, 618 F.Supp. 1186, 1189–90 (S.D.N.Y.1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983)). When no objections to a Report are made, the Court may adopt the Report if “there is no clear error on the face of the re......
  • Coronado v. Lefevre, No. 87 Civ. 2539 (RJW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 1, 1990
    ...at its own, independent conclusion about those portions of the magistrate's report to which objection is made." Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983). To this end, the court must "exercise ... sound judicial discretion with respect to whether reliance should be pl......
  • Request a trial to view additional results

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