Nettles v. Wainwright, 80-5596

• Citation: 677 F.2d 404
• Decision Date: 17 May 1982
• Docket Number: No. 80-5596,80-5596
• Parties: Ennis NETTLES, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee. . Unit B *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 404

677 F.2d 404

Ennis NETTLES, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.

No. 80-5596.

United States Court of Appeals,

Fifth Circuit.

Unit B ^*

May 17, 1982.

James D. Whittemore, Tampa, Fla., for petitioner-appellant.

Michael J. Kotler, Peggy A. Quince, Asst. Attys. Gen., Tampa, Fla., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., HENDERSON, HATCHETT, ANDERSON and THOMAS A. CLARK, Circuit Judges.

HATCHETT, Circuit Judge:

A panel of this court affirmed the denial of appellant's (Nettles) petition for writ of habeas corpus and held that a state prisoner's failure to object to a magistrate's report and recommendation, filed pursuant to 28 U.S.C. § 636(b) (1)(C), served as a waiver of the right to appeal from the district court's judgment based on the report and recommendation. Nettles v. Wainwright, 656 F.2d 986 (5th Cir. 1981). By vote of the Unit B judges of this circuit, we granted en banc consideration to address the following question:

How should this court treat an appellant's or cross-appellant's claim of error where the district court accepts a magistrate's report, unobjected to by the appellant or cross-appellant, which recommends the ruling subsequently made by the district court?

We hold that the failure to file written objections to proposed findings and recommendations in a magistrate's report shall bar the party from a de novo determination by the district court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the district court except upon grounds of plain error or manifest injustice. This bar of appellate review shall not occur, however, unless the magistrate informs the parties that objections must be filed within ten days after service of a copy of the magistrate's report is made upon them.

I. FACTS

In 1975, a Florida jury convicted Ennis Nettles of robbery, aggravated assault, and aggravated battery. He was sentenced to seventy-five years imprisonment, and a state appellate court affirmed his conviction without opinion. Nettles v. State, 336 So.2d 614 (Fla.Dist.Ct.App.1976).

Nettles then filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida pursuant to 28 U.S.C. § 2254. In his petition, Nettles alleged the following:

(1) Because his arrest was illegal, the suggestive pretrial identification procedures should have been suppressed, and

(2) he was denied due process of law by the admission at his state trial of inflammatory photographs and in-court identification evidence.

On April 4, 1980, a United States Magistrate, without holding a hearing, filed his report and recommendations finding Nettles's contentions to be without merit. Nettles did not object to the magistrate's report and recommendations. On April 22, 1980, the district court accepted the magistrate's report and recommendations and dismissed Nettles's petition.

This en banc consideration requires an examination of the Federal Magistrates Act, 28 U.S.C. §§ 631-639, to discern its directives, if any, to an appellate court when confronted with an appellant who fails to object to a magistrate's report in the trial court, but seeks to object on appeal.

II. DEVELOPMENT OF THE FEDERAL MAGISTRATES ACT

After several years of inquiry, Congress in 1968 enacted the Federal Magistrates Act, 28 U.S.C. §§ 631-639, for the purpose of revising the United States Commissioner System and "to cull from the ever-growing workload of the United States District Courts matters that are more desirably performed by a lower tier of judicial officers." H.R.Rep.No.1629, 90th Cong., 2d Sess. 12, reprinted in (1968) U.S.Code Cong. & Admin.News 4252, 4255. With these improvements in mind, the Act authorized magistrates to exercise those functions formerly exercised by United States Commissioners, and to discharge such additional duties assigned by the district court "as are not inconsistent with the Constitution and laws of the United States." 28 U.S.C. § 636(b). ¹ "Increasing the overall efficiency of the federal judiciary" was the goal in "permit(ting) ... the U.S. district courts to assign magistrates, as officers of the courts, a variety of functions ... presently performable only by the judges themselves." S.Rep.No.12, 90th Cong., 1st Sess. 11 (1967).

The provision of section 636(b) permitting the district court to establish rules which authorize the magistrate to conduct a "preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses," was the subject of Supreme Court review in Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974). In Wingo, the Supreme Court held invalid a district court's local rule authorizing a magistrate to hold evidentiary hearings because 28 U.S.C. § 2243 requires the district judge to personally hold these hearings in federal habeas corpus cases. Therefore, by the terms of section 636(b), the local rule was "inconsistent with the ... laws of the United States." ²

In 1976, Congress substantially amended section 636(b) of the Magistrates Act to "supply the congressional intent found wanting by the Supreme Court in Wingo v. Wedding." H.R.Rep.No.1609, 94th Cong., 2d Sess. 11, reprinted in (1976) U.S.Code Cong. & Admin.News 6162, 6171. Under the current version of 28 U.S.C. § 636(b)(1)

(n)otwithstanding any provision of law to the contrary-

.... (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 disposition, by a judge of the court, of (motions to suppress evidence in a criminal case), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.

The revision clearly recognizes the authority of a district judge to designate a magistrate to conduct evidentiary hearings. The 1976 amendments further added subsection (C) under 28 U.S.C. § 636(b)(1), which states:

The magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties. 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. 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.

It is this particular addition that is the subject of the instant case. Absent from the statute is any statement as to the effect on appeal of a party's failure to object to the magistrate's findings where those findings are subsequently adopted by the district court. The statute does provide for the district court to amplify on the procedure for filing objections by enacting local rules, and some have done so. ³ In order to establish uniformity throughout this circuit, however, we must interpret section 636(b)(1)(B) and the effect in this circuit of a failure to object to a magistrate's findings. In so doing, we find it appropriate to review the decisions of other appellate courts on this issue.

III. DECISIONS OF OTHER CIRCUITS

Four other circuit courts have confronted the failure to object question and, for different reasons, all have reached similar conclusions. In John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 588 F.2d 24 (2nd Cir. 1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979), a defendant in a civil antitrust action failed to adhere to a local rule compelling any party wishing to object to file written objections specifically identifying the proposed findings to which objection is made and the legal basis for the objection. The Second Circuit held that the failure to satisfy this local rule amounted to a waiver of the defendant's argument because it had not been properly preserved for appeal.

The failure to object issue received similar treatment from the First Circuit in Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). In Park Motor Mart, the district court accepted a magistrate's recommendations, without objection, and entered summary judgment dismissing the action. The court observed:

The purpose of the Federal Magistrates Act is to relieve courts of unnecessary work. Since magistrates are not Article III 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 that a party 'may' file objections within ten days or he may not, as he chooses, but he 'shall' do so if he wishes further consideration.

Park Motor Mart, 616 F.2d at 605 (footnote omitted). ⁴

In McCall v. Andrus, 628 F.2d 1185 (9th Cir. 1980), the Ninth Circuit ruled that a failure to bring to the district court's attention objections to a magistrate's recommendation bars the party so failing from raising those objections on appeal. The McCall case involved appellate review of a summary judgment by the United States District Court for the District of Nevada of an administrative decision. The circuit court was not aided by a local rules' amplification of section 636(b)(1)(B); the holding was based solely on the statute itself.

The...