Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 921 F.2d 282 (9th Cir. 1990)

Jaime VENEGAS, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 89-55026.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 18, 1990.* Decided Dec. 21, 1990.

Before GOODWIN, Chief Judge, and SCHROEDER and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Jaime Venegas, a former federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion, which the court treated as a petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the dismissal of a section 2255 motion, United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. denied, 108 S. Ct. 16 (1986), and we affirm.

Venegas contends the district court erred in construing his section 2255 motion as a petition for writ of habeas corpus.

A section 2255 motion can test only the propriety of the sentence imposed, not the manner of its execution. United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984). A defendant's challenge to the execution of his sentence is proper only through a petition for writ of habeas corpus under 28 U.S.C. § 2241. Id. Because Venegas is challenging the propriety of his sentence, rather than its execution, the district court erred in construing the motion as a habeas corpus petition. See id. Any error in so construing Venegas's motion is harmless, however, because the district court did not err in its consideration of the merits of the motion. See Strickland v. Washington, 466 U.S. 668, 689 (1984) (effective assistance of counsel); see also Brady v. United States, 397 U.S. 742, 749 (1970) (voluntariness of guilty plea); Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986) (same).1 

Venegas contends that it was error for the district court to submit his case to a magistrate without his consent. He also claims that he was denied due process when the district court adopted the final report and recommendation of the magistrate without giving him 10 days to object to the report.

Pursuant to 28 U.S.C. § 636(b), a magistrate is authorized to prepare a report and recommendation that disposes of a claim or defense, and no consent of the parties is necessary. If a party objects to the recommendation within ten days, the district court judge must make a de novo determination and may adopt the magistrate's findings. See Tripati v. Rison, 847 F.2d 548, 548 (9th Cir. 1988); Fed. R. Civ. P. 72(b). Here, Venegas did timely file an objection to the magistrate's report. After reviewing the objections, the magistrate filed a "Final Report and Recommendation" which made no new findings or recommendations, but simply advised the district judge to adopt his previous report. The district judge then conducted a de novo determination and adopted the magistrate's original report and recommendation, acknowledging Venegas's objection thereto. Thus, the district court did not commit any error.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Moreover, although Venegas was incarcerated in Texas at the time he filed his section 2255 motion, he was originally sentenced in the Central District of California. Thus, the district court had jurisdiction to consider the section 2255 motion but did not have jurisdiction to consider a petition for writ of habeas corpus by Venegas. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 493-501 (1973); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1980)