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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Lonzell J. Threats,

Petitioner,

v. 

J.T. Shartle, Warden

Respondent.

No. 17-542-TUC-JAS (BGM)

ORDER 

DISCUSSION

Pending before the Court is a Report and Recommendation issued by United States 

Magistrate Judge Macdonald. The Report and Recommendation recommends denying

Petitioner’s habeas petition. Petitioner filed objections and the Government filed a 

response to those objections.

1

As a threshold matter, as to any new evidence, arguments, and issues that were not 

timely and properly raised before United States Magistrate Judge Macdonald, the Court 

exercises its discretion to not consider those matters and considers them waived. United 

States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has discretion, 

but is not required, to consider evidence presented for the first time in a party's objection 

to a magistrate judge's recommendation . . . [I]n making a decision on whether to consider 

newly offered evidence, the district court must . . . exercise its discretion . . . [I]n providing 

for a de novo determination rather than de novo hearing, Congress intended to permit 

1 Unless otherwise noted by the Court, internal quotes and citations have been omitted 

when citing authority throughout this Order.
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whatever reliance a district judge, in the exercise of sound judicial discretion, chose to 

place on a magistrate judge's proposed findings and recommendations . . . The magistrate 

judge system was designed to alleviate the workload of district courts . . . To require a 

district court to consider evidence not previously presented to the magistrate judge would 

effectively nullify the magistrate judge's consideration of the matter and would not help to 

relieve the workload of the district court. Systemic efficiencies would be frustrated and the 

magistrate judge's role reduced to that of a mere dress rehearser if a party were allowed to 

feint and weave at the initial hearing, and save its knockout punch for the second round . . 

. Equally important, requiring the district court to hear evidence not previously presented 

to the magistrate judge might encourage sandbagging. [I]t would be fundamentally unfair 

to permit a litigant to set its case in motion before the magistrate, wait to see which way 

the wind was blowing, and—having received an unfavorable recommendation—shift gears 

before the district judge.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 

2003) (“Finally, it merits re-emphasis that the underlying purpose of the Federal 

Magistrates Act is to improve the effective administration of justice.”).

2

As to the objections filed by Petitioner, the Court has conducted a de novo review 

of the record. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with 

[the Report and Recommendation], 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 judge. The judge may also receive further evidence or recommit the matter to 

the magistrate judge with instructions.”).

In addition to reviewing the Report and Recommendation and any objections and 

responsive briefing thereto, the Court’s de novo review of the record includes review of the 

2 Assuming, arguendo, that such matters were not subject to waiver, the Court (in the 

alternative) has nonetheless conducted a de novo review, and upon review of the record 

and authority herein, rejects these issues and adopts the Report and Recommendation in its 

entirety.
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record and authority before United States Magistrate Judge Macdonald which led to the 

Report and Recommendation in this case.

Upon de novo review of the record and authority herein, the Court finds Petitioner’s 

objections to be without merit, rejects those objections, and adopts United States 

Magistrate Judge Macdonald’s Report and Recommendation in its entirety. See, e.g.,

United States v. Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by 

statute to de novo review of the subject. Under Raddatz [447 U.S. 667 (1980)] the court 

may provide this on the record compiled by the magistrate. Rodriguez treats adoption of 

the magistrate's report as a sign that he has not received his due. Yet we see no reason to 

infer abdication from adoption. On occasion this court affirms a judgment on the basis of 

the district court's opinion. Affirming by adoption does not imply that we have neglected 

our duties; it means, rather, that after independent review we came to the same conclusions 

as the district judge for the reasons that judge gave, rendering further explanation otiose. 

When the district judge, after reviewing the record in the light of the objections to the 

report, reaches the magistrate's conclusions for the magistrate's reasons, it makes sense to 

adopt the report, sparing everyone another round of paper.”); Bratcher v. Bray-Doyle 

Independent School Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) 

(“De novo review is statutorily and constitutionally required when written objections to a 

magistrate's report are timely filed with the district court . . . The district court's duty in this 

regard is satisfied only by considering the actual testimony [or other relevant evidence in 

the record], and not by merely reviewing the magistrate's report and recommendations . . . 

On the other hand, we presume the district court knew of these requirements, so the express 

references to de novo review in its order must be taken to mean it properly considered the 

pertinent portions of the record, absent some clear indication otherwise . . . Plaintiff 

contends . . . the district court's [terse] order indicates the exercise of less than de novo

review . . . [However,] brevity does not warrant look[ing] behind a district court's express 

statement that it engaged in a de novo review of the record.”); Murphy v. International 

Business Machines Corp., 23 F.3d 719, 722 (2nd Cir. 1994) (“We . . . reject Murphy's 
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procedural challenges to the granting of summary judgment . . . Murphy's contention that 

the district judge did not properly consider her objections to the magistrate judge's report . 

. . lacks merit. The judge's brief order mentioned that objections had been made and 

overruled. We do not construe the brevity of the order as an indication that the objections 

were not given due consideration, especially in light of the correctness of that report and 

the evident lack of merit in Murphy's objections.”); Gonzales-Perez v. Harper, 241 F.3d 

633 (8th Cir. 2001) (“When a party timely objects to a magistrate judge's report and 

recommendation, the district court is required to make a de novo review of the record 

related to the objections, which requires more than merely reviewing the report and 

recommendation . . . This court presumes that the district court properly performs its review 

and will affirm the district court's approval of the magistrate's recommendation absent 

evidence to the contrary . . . The burden is on the challenger to make a prima facie case 

that de novo review was not had.”); Brunig v. Clark, 560 F.3d 292, 295 (5th Cir. 2009) 

(“Brunig also claims that the district court judge did not review the magistrate's report de 

novo . . . There is no evidence that the district court did not conduct a de novo review. 

Without any evidence to the contrary . . . we will not assume that the district court did not 

conduct the proper review.”).

3

3 See also Pinkston v. Madry, 440 F.3d 879, 893-894 (7th Cir. 2006) (the district court's 

assurance, in a written order, that the court has complied with the de novo review 

requirements of the statute in reviewing the magistrate judge's proposed findings and 

recommendation is sufficient, in all but the most extraordinary of cases, to resist assault on 

appeal; emphasizing that “[i]t is clear that Pinkston's argument in this regard is nothing 

more than a collateral attack on the magistrate's reasoning, masquerading as an assault on 

the district court's entirely acceptable decision to adopt the magistrate's opinion . . .”); 

Garcia v. City of Albuquerque, 232 F.3d 760 (10th Cir. 2000) (“The district court's order 

is terse . . . However, neither 28 U.S.C. § 636(b)(1) nor Fed.R.Civ.P. 72(b) requires the 

district court to make any specific findings; the district court must merely conduct a de 

novo review of the record . . . It is common practice among district judges . . . to [issue a 

terse order stating that it conducted a de novo review as to objections] . . . and adopt the 

magistrate judges' recommended dispositions when they find that magistrate judges have 

dealt with the issues fully and accurately and that they could add little of value to that 

analysis. We cannot interpret the district court's [terse] statement as establishing that it 

failed to perform the required de novo review . . . We hold that although the district court's 

decision is terse, this is insufficient to demonstrate that the court failed to review the 

magistrate's recommendation de novo.”); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 

1995) (“The district court is required to conduct a de novo determination of those portions 

of the magistrate judge's report and recommendations to which objections have been filed. 

But this de novo determination is not the same as a de novo hearing . . . [I]f following a 

review of the record the district court is satisfied with the magistrate judge's findings and 
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CONCLUSION

Accordingly, IT IS HEREBY ORDERED as follows:

(1) United States Magistrate Judge Macdonald’s Report and Recommendation (Doc. 

37) is accepted and adopted in its entirety.

(2) Petitioner’s Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a 

Person in Federal Custody is denied.

(3) This case is dismissed with prejudice.

(4) The Clerk of the Court shall enter judgment and close the file in this case.

Dated this 25th day of June, 2021.

recommendations it may in its discretion treat those findings and recommendations as its 

own.”).