920 F. 2d 933 - Mujihadeen v. McWherter

Before RYAN and ALAN E. NORRIS, Circuit Judges, and ALLEN, Senior District Judge.*

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Asad E. Mujihadeen appeals the dismissal of his petition for a writ of habeas corpus filed under 28 U.S.C. Sec. 2254. Mujihadeen sought to attack his 1979 first-degree murder conviction. The magistrate recommended that the petition be dismissed and Mujihadeen filed timely objections. The district court adopted the magistrate's recommendation and dismissed the petition.

Upon review, we find it unclear whether a "de novo" or "clearly erroneous" standard of review of the magistrate's report was employed by the district court. A "de novo" review of the magistrate's report in light of plaintiff's objections is required under 28 U.S.C. Sec. 636(b)(1) and Article III of the Constitution. See Flournoy v. Marshall, 842 F.2d 875, 878 (6th Cir.1988); Thornton v. Jennings, 819 F.2d 153, 154 (6th Cir.1987) (per curiam); United States v. Shami, 754 F.2d 670, 672 (6th Cir.1985) (per curiam). Because a "de novo" review is constitutionally mandated, this case must be remanded to the district court.

Therefore, the judgment of the district court is vacated pursuant to Rule 9(b)(6), Rules of the Sixth Circuit, and the case is remanded for further proceedings consistent with this order.