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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSE LUIS BUGUENO PENA,
Petitioner,
vs. 	No. CIV 25-1310 JB/SCY
CARLOS A. RODRIGUEZ, STATE OF NEW
MEXICO, FNU LNU, WARDEN, Otero
County Processing Center,
MARY DE ANDA-YBARRA, Field Office
Director of Enforcement and Removal
Operations, El Paso Field Office Immigration
and Customs Enforcement,
KRIST NOEM, Secretary, U.S.
Department of Homeland Security, and
PAMELA BONDI, U.S. Attorney General,
Respondents.
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Magistrate Judge’s Proposed Findings and
Recommended Disposition, filed March 11, 2026 (Doc. 19)(“PFRD”). 	The PFRD notifies the
parties of their ability to file objections within fourteen days and that failure to file an objection
waives appellate review. PFRD at 6. The parties do not file any objections to the PFRD. 	The
Court concludes that the PFRD that the Honorable Steven C. Yarborough, United States Magistrate
Judge for the United States District Court for the District of New Mexico, files is not clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion, and the Court therefore
adopts the PFRD. Accordingly, the Court denies as moot the Petition for Writ of Habeas Corpus, filed
December 29, 2025 (Doc. 1).
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LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
RECOMMENDATIONS
District courts may refer dispositive motions to a Magistrate Judge for a recommended
disposition. See Fed. R. Civ. P. 72(b)(1) (“A magistrate judge must promptly conduct the required
proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a
claim or defense. . . .”). Rule 72(b)(2) governs objections: “Within 14 days after being served with
a copy of the recommended disposition, a party may serve and file specific written objections to
the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). Finally, when resolving
objections to a Magistrate Judge's proposal, “[t]he district judge must determine de novo any part
of the magistrate judge's disposition that has been properly objected to. The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C. §
636 provides:
A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1).
“The filing of objections to a magistrate's report enables the district judge to focus attention
on those issues -- factual and legal -- that are at the heart of the parties' dispute.” United States v.
One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, and Contents, 73 F.3d 1057,
1059 (10th Cir.1996)(“One Parcel”)(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). As the
United States Court of Appeals for the Tenth Circuit notes, “the filing of objections advances the
interests that underlie the Magistrate's Act, including judicial efficiency.” One Parcel, 73 F.3d at
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1059 (citing Niehaus v. Kan. Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir.1986); United States v.
Walters, 638 F.2d 947, 950 (6th Cir. 1981)).
The Tenth Circuit holds “that a party's objections to the magistrate judge's report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” 	One Parcel, 73 F.3d at 1060. 	“To further advance the
policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, have adopted
‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the magistrate's
findings or recommendations waives appellate review of both factual and legal questions.’” One
Parcel, 73 F.3d at 1059. In addition to requiring specificity in objections, the Tenth Circuit states
that “[i]ssues raised for the first time in objections to the magistrate judge's recommendation are
deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). See United States v.
Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)(“In this circuit, theories raised for the first time
in objections to the magistrate judge's report are deemed waived.”). In an unpublished opinion,
the Tenth Circuit states that “the district court correctly held that [a petitioner] had waived [an]
argument by failing to raise it before the magistrate.” Pevehouse v. Scibana, 229 Fed. Appx. 795,
796 (10th Cir.2007).1
1 Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an unpublished
Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th
Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive
value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored. However,
if an unpublished opinion or order and judgment has persuasive value with respect
to a material issue in a case and would assist the court in its disposition, we allow
citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citing In re Citation of Unpublished
Opinions/Orders & Judgments, 151 F.R.D. 470 (10th Cir. 1993)). 	The Court concludes that
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In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expands the
waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060.
The Supreme Court of the United States -- in the course of approving the United States Court of
Appeals for the Sixth Circuit's use of the waiver rule -- notes:
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. The House and Senate Reports
accompanying the 1976 amendments do not expressly consider what sort of review
the district court should perform when no party objects to the magistrate's report.
See S.Rep. No. 94-625, pp. 9-10 (1976)(hereafter Senate Report); H.R.Rep. No. 94-
1609, p. 11 (1976), U.S.Code Cong. & Admin. News 1976, p. 6162 (hereafter
House Report). There is nothing in those Reports, however, that demonstrates an
intent to require the district court to give any more consideration to the magistrate's
report than the court considers appropriate. Moreover, the Subcommittee that
drafted and held hearings on the 1976 amendments had before it the guidelines of
the Administrative Office of the United States Courts concerning the efficient use
of magistrates. Those guidelines recommended to the district courts that “[w]here
a magistrate makes a finding or ruling on a motion or an issue, his determination
should become that of the district court, unless specific objection is filed within a
reasonable time.” See Jurisdiction of United States Magistrates, Hearings on S.
1283 before the Subcommittee on Improvements in Judicial Machinery of the
Senate Committee on the Judiciary, 94th Cong., 1st Sess., 24 (1975)(emphasis
added)(hereafter Senate Hearings). The Committee also heard Judge Metzner of the
Southern District of New York, the chairman of a Judicial Conference Committee
on the administration of the magistrate system, testify that he personally followed
that practice. See id., at 11 (“If any objections come in, . . . I review [the record]
and decide it. If no objections come in, I merely sign the magistrate's order.”). The
Judicial Conference of the United States, which supported the de novo standard of
review eventually incorporated in § 636(b)(1)(C), opined that in most instances no
party would object to the magistrate's recommendation, and the litigation would
terminate with the judge's adoption of the magistrate's report. See Senate Hearings,
at 35, 37. Congress apparently assumed, therefore, that any party who was
dissatisfied for any reason with the magistrate's report would file objections, and
those objections would trigger district court review. There is no indication that
Congress, in enacting § 636(b)(1)(C), intended to require a district judge to review
a magistrate's report to which no objections are filed. It did not preclude treating
the failure to object as a procedural default, waiving the right to further
consideration of any sort. We thus find nothing in the statute or the legislative
Pevehouse v. Scibana has persuasive value with respect to a material issue, and will assist the Court
in its disposition of the matters now before it.
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history that convinces us that Congress intended to forbid a rule such as the one
adopted by the Sixth Circuit.
Thomas v. Arn, 474 U.S. at 150-52 (emphasis in original).
The Tenth Circuit also notes, “however, that ‘[t]he waiver rule as a procedural bar need not
be applied when the interests of justice so dictate.’” One Parcel, 73 F.3d at 1060 (quoting Moore
v. United States, 950 F.2d 656, 659 (10th Cir.1991)(“We join those circuits that have declined to
apply the waiver rule to a pro se litigant's failure to object when the magistrate's order does not
apprise 	the 	pro 	se 	litigant 	of 	the 	consequences 	of 	a 	failure 	to 	object 	to 	findings 	and
recommendations.”). 	Cf. Thomas v. Arn, 474 U.S. at 154 (noting that, while “[a]ny party that
desires plenary consideration by the Article III judge of any issue need only ask,” a failure to object
“does not preclude further review by the district judge, sua sponte or at the request of a party, under
a de novo or any other standard”). In One Parcel, the Tenth Circuit notes that the district judge
decides sua sponte to conduct a de novo review despite the objections’ lack of specificity, but the
Tenth Circuit deems the issues waived on appeal, because waiver advances the interests underlying
the waiver rule. See 73 F.3d at 1060-61 (citing cases from other Courts of Appeals where district
courts elect to address merits despite potential application of waiver rule, but Courts of Appeals
opt to enforce waiver rule).
Where a party files timely and specific objections to the Magistrate Judge's PFRD, on
“dispositive motions, the statute calls for a de novo determination, not a de novo hearing.” United
States v. Raddatz, 447 U.S. 667, 674 (1980). “[I]n providing for a ‘de novo determination’ rather
than de novo hearing, Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate judge's proposed findings and
recommendations.” United States v. Raddatz, 447 U.S. at 676, (quoting 28 U.S.C. § 636(b) and
citing Mathews v. Weber, 423 U.S. 261, 275 (1976)). The Tenth Circuit requires a “district court
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to 	consider 	relevant 	evidence 	of 	record 	and 	not 	merely 	review 	the 	magistrate 	judge's
recommendation” when conducting a de novo review of a party's timely, specific objections to the
magistrate judge's report. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “When objections
are made to the magistrate's factual findings based on conflicting testimony or evidence . . . the
district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary
hearing.” Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987).
A district court must “clearly indicate that it is conducting a de novo determination” when
a party objects to the Magistrate Judge's report “based upon conflicting evidence or testimony.”
Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet the requirements
of 28 U.S.C. § 636(b)(1) when it indicates that it gave “considerable deference to the magistrate's
order.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). A district court
need not, however, “make any specific findings; the district court must merely conduct a de novo
review of the record.” Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir.2000). “[T]he
district court is presumed to know that de novo review is required. Consequently, a brief order
expressly stating the court conducted de novo review is sufficient.” 	Northington v. Marin, 102
F.3d 1564, 1570 (10th Cir. 1996)(citing In re Griego, 64 F.3d at 583-84). “[E]xpress references to
de novo review in its order must be taken to mean it properly considered the pertinent portions of
the record, absent some clear indication otherwise.” Bratcher v. Bray-Doyle Indep. Sch. Dist. No.
42, 8 F.3d 722, 724 (10th Cir. 1993). The Tenth Circuit holds that a district court properly conducts
a de novo review of a party's evidentiary objections when the district court's “terse” order contains
one sentence for each of the party's “substantive claims” and does “not mention his procedural
challenges to the jurisdiction of the magistrate to hear the motion.” Garcia v. City of Albuquerque,
232 F.3d at 766. The Tenth Circuit explains that brief district court orders that “merely repeat[ ]
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the language of § 636(b)(1) to indicate its compliance” are sufficient to demonstrate that the district
court conducts a de novo review:
It is common practice among district judges in this circuit to make such a statement
and adopt the magistrate judges' recommended dispositions when they find that
magistrate judges have dealt with the issues fully and accurately and that they could
add little of value to that analysis. We cannot interpret the district court's statement
as establishing that it failed to perform the required de novo review.
In re Griego, 64 F.3d at 584.
Notably, because “Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and
recommendations,” United States v. Raddatz, 447 U.S. at 676 (emphasis omitted), a district court
“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate,” 28 U.S.C. § 636(b)(1). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d
at 724-25 (holding that the district court's adoption of the Magistrate Judge's “particular
reasonable-hour estimates” is consistent with the de novo determination that 28 U.S.C. § 636(b)(1)
and United States v. Raddatz require).
Where no party objects to the Magistrate Judge's PFRD, the Court reviews, as a matter of
course and in the interests of justice, the Magistrate Judge's recommendations. In Pablo v. Soc.
Sec. 	Admin., 	No. 	CIV 	11-0132 	JB/ACT, 	2013 	WL 	1010401 	(D.N.M. 	February 	27,
2013)(Browning, J.), the plaintiff fails to respond to the Magistrate Judge's PFRD, and thus waives
his right to appeal the recommendations, but the Court nevertheless conducts a review. See 2013
WL 1010401, at *1, *4. 	The Court generally does not, however, “review the PFRD de novo,
because the parties have not objected thereto, but rather review[s] the recommendations to
determine whether they are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *4. 	The Court, thus, does not
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determine independently what it would do if the issues had come before the Court first, when there
is no objection, but rather adopts the PFRD where “‘the Court cannot say that the Magistrate
Judge's recommendation . . . is clearly erroneous, arbitrary, obviously contrary to law, or an abuse
of discretion.’” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *3 (quoting Workheiser v. City
of Clovis, No. CIV 12–0485 JB/GBW, 2012 WL 6846401, at *3 (D.N.M. December 28,
2012)(Browning, J.). See Alexandre v. Astrue, No. CIV 11-0384 JB/SMV, 2013 WL 1010439, at
*4 (D.N.M. February 27, 2013)(Browning, J.)(“The Court rather reviewed the findings and
recommendations . . . to determine if they are clearly erroneous, arbitrary, obviously contrary to
law, or an abuse of discretion. The Court determines that they are not, and will therefore adopt the
PFRD.”); Trujillo v. Soc. Sec. Admin., No. CIV 12-1125 JB/KBM, 2013 WL 1009050, at *5
(D.N.M. February 28, 2013)(Browning, J.)(adopting the proposed findings and conclusions, and
noting: “The Court did not review the ARD de novo, because Trujillo has not objected to it, but
rather reviewed the . . . findings and recommendation to determine if they are clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion, which they are not.”). This review,
which is deferential to the Magistrate Judge's work when there is no objection, nonetheless
provides some review in the interest of justice, and seems more consistent with the waiver rule's
intent than no review at all or a full-fledged review. Accordingly, the Court considers this standard
of review appropriate. See Thomas v. Arn, 474 U.S. at 151 (“There is nothing in those Reports,
however, that demonstrates an intent to require the district court to give any more consideration to
the magistrate's report than the court considers appropriate.”). The Court is reluctant to have no
review at all if its name is going at the bottom of the order adopting the Magistrate Judge's PFRD.
ANALYSIS
The Court has reviewed carefully the PFRD. 	The Court has not reviewed the PFRD de
novo, because the parties have not objected to it, but rather reviewed Magistrate Judge
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Yarborough’s PFRD to determine if it is clearly erroneous, arbitrary, obviously contrary to law,
or an abuse of discretion. 	The PFRD is not clearly erroneous, arbitrary, obviously contrary to
law, or an abuse of discretion. 	Accordingly, the Court adopts the PFRD.
IT IS ORDERED that: (i) the Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed March 11, 2026 (Doc. 19), is adopted; (ii) the Petition for Writ of Habeas
Corpus, filed December 29, 2025 (Doc.1), is denied; and (iii) a separate Final Judgment will be
entered.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Jose Luis Bugueno Pena
Estancia, New Mexico
Petitioner pro se
Todd Blanche
Acting Attorney General
Ryan Ellison
First Assistant United States Attorney
Allison Shokes
Assistant United States Attorneys
United States Attorney’s Office
Albuquerque, New Mexico
Attorney for Respondents
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