USA v. Stoltenberg et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
EDWIN ALLEN STOLTENBERG,
Defendant.
Case No. 3:18-cr-00109-JMK-MMS
ORDER ADOPTING REPORT AND
RECOMMENDATION
Before the Court at Docket 773 is Defendant’s Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. 	The
motion was referred to the Honorable Magistrate Judge Matthew M. Scoble. 	The
Government responded in opposition at Docket 775. Defendant replied at Docket 778, but
that was stricken at Docket 779. Defendant moved for leave to respond in opposition and
amend at Docket 782, which Judge Scoble denied at Docket 783. Judge Scoble issued his
Final Report and Recommendation at Docket 784, in which he recommended that the
motion be denied. No objections to the Final Report and Recommendation at Docket 784
were filed.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in part, the
Case 3:18-cr-00109-JMK-MMS Document 796 Filed 12/28/22 Page 1 of 2

United States v. Stoltenberg 	Case No. 3:19-cr-00114-JMK
Order Adopting Report and Recommendation 	Page 2
findings or recommendations made by the magistrate judge.”1 	A court is to “make a de
novo determination of those portions of the magistrate judge’s report or specified proposed
findings or recommendations to which objection is made.”2 But as to those topics on which
no objections are filed, “[n]either the Constitution nor [28 U.S.C. § 636(b)(1)] requires a
district judge to review, de novo, findings and recommendations that the parties themselves
accept as correct.”3
The magistrate judge recommended that the Court deny without prejudice
the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody. 	The Court has reviewed the Final Report and Recommendation and
agrees 	with 	its 	analysis. 	Accordingly, 	the 	Court 	adopts 	the 	Final 	Report 	and
Recommendation, and IT IS ORDERED that the Motion Under 28 U.S.C § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody at Docket 773 is DENIED.
IT IS SO ORDERED this 28th day of December, 2022, at Anchorage,
Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
1 28 U.S.C. § 636(b)(1)(C).
2 Id.
3 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Thomas v. Arn, 474
U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard, when neither party objects
to those findings.”).
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