Pedroso v. Nooth
Filing
51
ORDER - This Court follows the recommendation of the Advisory Committee and reviews Judge Acosta's Findings and Recommendation for clear error on the face of the record. No such error is apparent. Accordingly, the Court ADOPTS Judge Acost a's Findings and Recommendation, Dkt. 45 . Petitioner's Amended Petition for Writ of Habeas Corpus (Dkt. 12 ) is DENIED. The Court declines to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Signed on 7/27/2015 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GILBERTO PEDROSO,
Petitioner,
Case No. 2:13-cv-0644-AC
ORDER
v.
MARK NOOTH,
Respondent.
Michael H. Simon, District Judge.
United States Magistrate Judge John V. Acosta issued Findings and Recommendation in
this case on June 25, 2015. Dkt. 45. Judge Acosta recommended that Petitioner’s Amended
Petition for Writ of Habeas Corpus should be denied. No party has filed objections.
Under the Federal Magistrates Act (“Act”), the 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). If a party files objections to a magistrate’s findings and recommendations, “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.” Id.; Fed. R. Civ. P. 72(b)(3).
If no party objects, the Act does not prescribe any standard of review. See Thomas v. Arn,
474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended
PAGE 1 – ORDER
to require a district judge to review a magistrate’s report to which no objections are filed.”);
United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the
court must review de novo magistrate’s findings and recommendations if objection is made, “but
not otherwise”).
Although review is not required in the absence of objections, the Act “does not preclude
further review by the district judge[] sua sponte . . . under a de novo or any other standard.”
Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ. P. 72(b)
recommend that “[w]hen no timely objection is filed,” the court review the magistrate’s findings
and recommendations for “clear error on the face of the record.”
No party having made objections, this Court follows the recommendation of the Advisory
Committee and reviews Judge Acosta’s Findings and Recommendation for clear error on the
face of the record. No such error is apparent. Accordingly, the Court ADOPTS Judge Acosta’s
Findings and Recommendation, Dkt. 45. Petitioner’s Amended Petition for Writ of Habeas
Corpus (Dkt. 12) is DENIED. The Court declines to issue a Certificate of Appealability on the
basis that Petitioner has not made a substantial showing of the denial of a constitutional right
pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 27th day of July, 2015.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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