Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

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.