Toquero v. Ambsberry

Filing 79

ORDER: Adopting Findings and Recommendation 76 . The Petitions for Writ of Habeas Corpus 2 , 27 , 50 are DENIED, and this case is DISMISSED with prejudice. A Certificate of Appealability is denied 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 11/8/2017 by Judge Ann L. Aiken. A copy of this Order was mailed to pro se petitioner, Fred Leo Toquero. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION

FRED LEO TOQUERO,

Case No. 2:14-cv-00212-TC

ORDER
Plaintiff,
vs.
B. AMBSBERRY, Acting Superintendent
EOCL
Defendant.

AIKEN, District Judge:
Magistrate Judge Coffin filed his Findings and Recommendation ("F&R") (doc. 76) on
9/25/2017. The matter is now before me. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72. No
objections have been timely filed. Although this relieves me of my obligation to perfom1 a de
novo review, I retain the obligation to "make an informed, final decision." Britt v. Simi Valley
Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983), overrnled on other grounds, United States
v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en bane). The Magistrates Act does

not specify a standard of review in cases where no objections are filed. Ray v. Astrne, 2012 WL
1598239, *l (D. Or. May 7, 2012). Following the recommendation of the Rules Advisory

Page 1 -ORDER

Committee, I review the F&R for "clear error on the face of the record[.]" Fed. R. Civ. P. 72
advisory committee's note (1983) (citing Campbell v. United States District Court, 501 F.2d
196, 206 (9th Cir. 1974)); see also United States v. Vann, 535 U.S. 55, 64 n.6 (2002) (stating
that, "[i]n the absence of a clear legislative mandate, the Advisory Committee Notes provide a
reliable source of insight into the meaning of' a federal rule). Having reviewed the file of this
case, I find no clear error.
Accordingly I adopt Judge Coffin's F&R (doc. 76) in its entirety. The Petitions for Writ
of Habeas C01pus (Doc. 2, 27, 50) are DENIED, and this case is DISMISSED with prejudice. A
Ce1iificate of Appealability is denied 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).
Dated this 8th day of November 2017.

aw_~AJ
Ann Aiken
United States District Judge

Page 2 -ORDER