Nesta v. Nooth

Filing 35

OPINION & ORDER: Adopting the Magistrate's Findings and Recommendation 33 . Petitioner's Petition for Writ of Habeas Corpus 2254 2 is Denied, and judgment will enter Dismissing this case with prejudice. In addition, Nesta has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). This case is not appropriate for appellate review. Signed on 6/29/16 by Chief Judge Michael W. Mosman. (gm)

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

DANIEL NESTA,
No. 2:14-cv-00459-PK
Petitioner,
OPINION AND ORDER
v.
MARK NOOTH, Superintendent,
Snake River Correctional
Institution,
Defendant.
MOSMAN, J.,
On June 6, 2016, Magistrate Judge Papak issued his Findings and Recommendation [33],
recommending Petitioner Daniel Nesta’s Petition for Writ of Habeas Corpus [2] should be
DENIED and that the case should be DISMISSED with prejudice. Judge Papak also
recommended that I do not issue a certificate of appealability. No objections to the Findings and
Recommendation were filed.

DISCUSSION
The magistrate judge makes only recommendations to the court, to which any party may
file written objections. The court is not bound by the recommendations of the magistrate judge,
but retains responsibility for making the final determination. The court is generally required to

1 – OPINION AND ORDER

make a de novo determination regarding those portions of the report or specified findings or
recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court
is not required to review, de novo or under any other standard, the factual or legal conclusions of
the magistrate judge as to those portions of the F&R to which no objections are addressed. See
Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003). While the level of scrutiny under which I am required to review the F&R
depends on whether or not objections have been filed, in either case, I am free to accept, reject,
or modify any part of the F&R. 28 U.S.C. § 636(b)(1)(C).
Upon review, I agree with Judge Papak’s recommendation and I ADOPT the F&R [33]
as my own opinion.
IT IS SO ORDERED.
DATED this 29 __

day of June, 2016.

_/s/ Michael W. Mosman______
MICHAEL W. MOSMAN
Chief United States District Judge

2 – OPINION AND ORDER