Unpublished Disposition, 908 F.2d 977 (9th Cir. 1989)

MEMORANDUM^** 

Silvaggio appeals the district court's denial of his Rule 60(b) motion, requesting reconsideration of his petition for writ of habeas corpus. We affirm.

In 1985, Silvaggio pleaded guilty to several counts of theft and robbery. After exhausting his state court remedies, Silvaggio filed a petition of habeas corpus in federal court, alleging that his plea was involuntary, that he was incompetent to enter a plea and that he received ineffective assistance of counsel. His petition was assigned to a magistrate for review. The magistrate issued his Report and Recommendation on March 24, 1988, recommending denial of Silvaggio's petition.

On April 4, 1988, Silvaggio filed objections to the report, alleging factual inaccuracies and requesting de novo review by the district court. He also requested an evidentiary hearing. The magistrate denied the request for a hearing. On April 14, 1988, the district court adopted the magistrate's recommendation. On April 18, 1988, the court entered judgment denying Silvaggio's petition and dismissing it with prejudice.

On April 27, 1988, Silvaggio filed a notice of appeal from the judgment, along with a request for certificate of probable cause and permission to proceed in forma pauperis. The clerk did not notice all the documents and sent a memorandum to the magistrate stating that no request for certificate of probable cause had been filed. The original request was, however, placed in the court file with the other documents. The district court denied Silvaggio's request for a certificate of probable cause saying his appeal was "frivolous and without merit."

On January 30, 1989, and again on March 6, 1989, Silvaggio filed motions under Fed. R. Civ. P. 60(b) for relief from the judgment. In both motions Silvaggio alleged that the district court never conducted a de novo review of contested factual issues in the magistrate's report. These motions were denied by minute orders entered on January 30 and March 6, 1989, respectively. The district court found Silvaggio's contentions to be "completely without merit."

Silvaggio filed a notice of appeal on March 16, 1989. On April 14, 1989, the district court entered an order denying a certificate of probable cause, even though the appeal was not taken from denial of Silvaggio's habeas petition. On April 26, 1989, Silvaggio filed a second notice of appeal from the denial of his Rule 60(b) motion.¹ 

DISCUSSION

A Rule 60(b) motion may be brought to challenge denial of a habeas corpus petition, and timely appeal may be taken from denial of the motion. Browder v. Director, Dept. of Corrections of Illinois, 434 U.S. 257, 262-63, nn. 6, 7 (1978).²  "The Court of Appeals may review the ruling only for abuse of discretion, however, and an appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review." Id. at 263 n. 7 (citations omitted); Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989).

Under the abuse of discretion standard, a district court may be reversed only if it rests its conclusions on a clearly erroneous finding of fact or an error of law. Hunt v. National Broadcasting Co., 872 F.2d 289, 292 (9th Cir. 1989). To reverse, the reviewing court must have a "definite and firm conviction" that the district court committed a clear error of judgment, weighing all the relevant factors. Abatti v. Commissioner, 859 F.2d 115, 117 (9th Cir. 1988).

Silvaggio first argues that the district court failed to review his objections to the magistrate's report de novo. Once objections to a magistrate's report are filed, the district court has a statutory obligation to review de novo those portions of the report to which objections have been made. 28 U.S.C. § 636(b) (1); United States v. Remsing, 874 F.2d 614, 618 (9th Cir. 1989); United States v. Saunders, 641 F.2d 659, 663 (9th Cir. 1980) (de novo review necessary to comport with Article III). This court has found the district court's review inadequate when "the record is clear that no review was made by the district judge." Coolidge v. Schooner California, 637 F.2d 1321, 1327 (9th Cir. 1981). Similarly, if testimony before a magistrate is contested, the district court must "clearly indicate that it is conducting a de novo determination" by reviewing the testimony. Remsing, 874 F.2d at 618.

Here, the district court stated in its April 14, 1988, order:

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of the United States Magistrate. The Court approves and adopts the Findings and Conclusions of the Magistrate.

There is nothing to indicate that the district court did not have the complete court file, including Silvaggio's objections, before it when it adopted the magistrate's report. Ten days passed between the time Silvaggio filed his objections and the district court entered its order. No hearings or testimony were involved. In short, "nothing in the record even suggests that the district court did not exercise its own independent judgment." United States v. deCoito, 764 F.2d 690, 694 (9th Cir. 1985).

Silvaggio next argues that the court never considered his request for an evidentiary hearing because the magistrate "intercepted" his request and ruled on it himself. Silvaggio argues that this was "highly improper" because once objections are made, an evidentiary hearing is required under Rule 8 of the Rules Governing Habeas Corpus Proceedings. Silvaggio is incorrect. Under Rule 8, as under Sec. 636(b) (1) (B), an evidentiary hearing on objections to the magistrate's findings is optional. Remsing, 874 F.2d at 618. In drafting Sec. 636(b) (1) (B), Congress deliberately required only a de novo "determination," not "hearing," by the district court. United States v. Raddatz, 447 U.S. 667, 675-76 (1980).

Third, Silvaggio argues that the magistrate "deliberately intercepted" his first request for certificate of probable cause. Silvaggio alleges that the magistrate directed his secretary to prepare an order for the court to sign, adopting his recommendations and denying Silvaggio's petition without review. Silvaggio misreads the memorandum in the file. The memorandum was from the secretary to the magistrate. Moreover, although the docket sheet does not list it, Silvaggio's original request is in the court file, along with the other documents he filed on the same day.

Silvaggio nevertheless argues, based on the text of the orders entered and the memorandum from a secretary to the magistrate, that the magistrate concealed documents and "lied" to the district court. There is no evidence that the magistrate "intercepted" Silvaggio's first petition for certificate of probable cause or "lied" to the court. The district court rejected these contentions as completely without merit.

We find no abuse of discretion here. The district court's order denying the rule 60(b) motion is

AFFIRMED.