Luster Watson v. R. C. Marshall , 827 F.2d 770 ( 1987 )

827 F.2d 770

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Luster WATSON, Petitioner-Appellant,
v.
R. C. MARSHALL, Respondent-Appellee.

No. 86-3545

United States Court of Appeals, Sixth Circuit.

August 24, 1987.

ORDER

1

Before RALPH B. GUY Jr. and BOGGS, Circuit Judges, and SUHRHEINRICH, District Judge.*

2

The petitioner appeals through counsel from the district court's dismissal of his habeas petition based upon denial of rights guaranteed under the fifth and sixth amendments. This appeal has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and briefs, the panel agrees unanimously that oral arguments is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

3

Petitioner filed objections to the magistrate's report and recommendation of dismissal of his habeas petition. The district court, in reviewing the report and objections thereto, applied a 'clearly erroneous' standard. The clearly erroneous standard in reviewing objections to a magistrate's report and recommendation issued pursuant to 28 U.S.C. Sec. 636(b)(1), however, is constitutionally impermissible. Any report and recommendation filed by a magistrate is subject to de novo review in light of specific objections filed by any party. Thornton v. Jennings, No. 86-3789, slip op. at 2 (6th Cir. May 28, 1987); Brown v. Wesley's Quaker Maid, Inc., 771 F.2d 952, 954 n.2 (6th Cir. 1985); United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985).

4

Accordingly, the district court's judgment is hereby vacated and the case remanded for de novo review. Rule 9(b)(6), Rules of the Sixth Circuit.

*

The Honorable Richard F. Suhrheinrich, U.S. District Judge for the Eastern District of Michigan, sitting by designation