Smoke v. Coursey

Filing 33

Opinion and Order RE: Findings & Recommendation: Petition for Writ of Habeas Corpus 2254 1 should be Denied 26 . Magistrate Judge Clarke's Report and Recommendation 26 is adopted. The petition 1 is denied and this action is dismissed. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(2). IT IS SO ORDERED. Signed on 5/13/2010 by Judge Owen M. Panner. (dkj)

FILED' 10 t'lAY 1:315:24USDC·ORt1

I N THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON CHAD MICHAEL SMOKE, Petitioner,
v.

Civ. No. 08-1413-CL

OPINION AND ORDER

RICK COURSEY, Respondent.

PANNER, D i s t r i c t J u d g e :
M a g i s t r a t e J u d g e M a r k D. C l a r k e f i l e d a R e p o r t a n d Recommendation ("R and R") this court. See 28 U.S.C. [ # 2 6 J , and t h e m a t t e r i s now b e f o r e
§

636(b) (1) (B), Fed. R. C i v . P. 72 ( b ) .

P e t i t i o n e r t i m e l y f i l e d o b j e c t i o n s [ # 3 1 J t o t h e R & R. Accordingly, 28 U.S.C.
§

I have reviewed the f i l e of this case de novo. 636 (b) (1)
(c);

See

McDonnell Douglas Corp. v. Commodore

1 - ORDER

Bus. Mach., I n c . , 656 F.2d 1309, 1313 (9th Cir. 1981). the R & R is correct.

I conclude

P e t i t i o n e r r a i s e s t w o s p e c i f i c o b j e c t i o n s t o t h e R & R. First, petitioner argues that Judge Clarke and the Oregon courts misconstrued his claim regarding ineffective assistance of counsel (Objections to Magistrate Judge's Findings and Recommendation, 14.) Upon de novo review, I agree with Judge Clarke's conclusion

that the alleged lack of investigation by p e t i t i o n e r ' s t r i a l attorney was a c t u a l l y reasonable and "sound t r i a l strategy" as the

i s s u e o f why p e t i t i o n e r ' s c a r was a t t h e v i c t i m ' s h o u s e was a collateral issue and not relevant to p e t i t i o n e r ' s defense. (Report and Recommendation, 8-10.) Additionally, Judge Clarke correctly found that even i f the t r i a l court allowed witnesses t o t e s t i f y t h a t Mr. Salladay s t o l e p e t i t i o n e r ' s vehicle, there was not a reasonable p r o b a b i l i t y t h a t the jury would have acquitted petitioner because any such t e s t i m o n y w o u l d h a v e c o n f l i c t e d w i t h p e t i t i o n e r ' s own s t a t e m e n t s to police and because the evidence against p e t i t i o n e r was overwhelming. (Report and Recommendation, 10-11.) Therefore,

petitioner cannot demonstrate prejudice under Strickland v. Washington, 466 U.S. 668, 10-11.) Petitioner's second objection is that the denial of a certificate of appealability is premature as petitioner has yet to decide whether or not to undertake an appeal. This objection is 694 (1984). (Report and Recommendation,

foreclosed by Rule 11(a) of the Rules Governing Section 2254 Cases

2 - ORDER

In T h e U n i t e d S t a t e s D i s t r i c t C o u r t s .

("The d i s t r i c t court must

issue or deny a c e r t i f i c a t e of a p p e a l a b i l i t y when i t e n t e r s a final order adverse to the applicant.") CONCLUSION Magistrate Judge Clarke's Report and Recommendation (#26) adopted. dismissed. The p e t i t i o n (#1) i s denied and t h i s action i s Because p e t i t i o n e r has not made a s u b s t a n t i a l showing is

of the denial of a constitutional right, a certificate of a p p e a l a b i l i t y i s DENIED. I T I S SO ORDERED. See 28 U.S.C.
§

2253(2).

DATED t h i s

v

OWEN M. PANNER U . S . D I S T R I C T JUDGE

3 - ORDER