Gill v. Nooth

Filing 106

ORDER - The Court ADOPTS Judge Jelderks' Findings and Recommendation (ECF 102 ), as supplemented herein. Petitioner's habeas corpus petition (ECF 2 ) is DENIED. The Court declines to issue a Certificate of Appealability on Petitioner's claims because 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 10/1/2018 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DANYALE DEWITT GILL,
Petitioner,

Case No. 2:14-cv-0639-JE
ORDER ADOPTING FINDINGS AND
RECOMMENDATION

v.
MARK NOOTH,
Respondent.

Michael H. Simon, District Judge.
United States Magistrate Judge John Jelderks issued Findings and Recommendation
(F&R) in this case on August 22, 2018. ECF 102. Judge Jelderks recommended that Petitioner’s
Petition for Writ of Habeas Corpus be denied with prejudice. Judge Jelderks also recommended
that this Court should decline to issue a certificate of appealability on the basis that the petitioner
has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C.
§ 2253(c)(2).
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 judge’s findings and recommendations,
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“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).
For those portions of a magistrate judge’s findings and recommendations to which neither
party has objected, 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 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 judge’s findings and recommendations if objection is made, “but
not otherwise”). Although in the absence of objections no review is required, 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
judge’s recommendations for “clear error on the face of the record.”
Petitioner timely filed an objection (ECF 104), to which Respondent responded (ECF
105). The Court has reviewed de novo the F&R, the briefing of the parties before Judge Jelderks,
the objections to the F&R, and the response thereto. The Court agrees with Judge Jelderks’s
reasoning regarding the Petition for a Writ of Habeas Corpus and ADOPTS those portions of the
F&R to which Petitioner objected, as supplemented herein.
Petitioner objects that Judge Jelderks misconstrued Petitioner’s notice argument as an
argument that he lacked notice that he could be resentenced as a Dangerous Offender on remand.
Petitioner asserts that he instead argued that he lacked notice that he could be sentenced as a
Dangerous Offender in the original proceedings. Either way, Petitioner’s notice claim fails.

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As relevant here, under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a
federal court considering a habeas application of a person in custody pursuant to the judgment of
a state court may not grant that application with respect to any claim that was adjudicated on the
merits in state court proceedings unless the state court adjudication “resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. 2254(d)(1). The Supreme
Court has determined that an “unreasonable” application of clearly established federal law for
purposes of AEDPA must be “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409
(2000).
There is no clearly established federal law, as determined by the Supreme Court,
requiring that an indictment allege sentencing factors. In Oregon, “the legislature has provided
that a prosecutor need not plead sentence enhancement facts in the indictment.” State v. Reinke,
309 P.3d 1059, 1067 (Or. 2013). Petitioner’s counsel was informed months before trial that the
prosecution intended to seek a Dangerous Offender enhancement. Thus, Petitioner had sufficient
notice before the original proceedings. And, as Judge Jelderks found, Petitioner had ample notice
that the state intended to resentence him as a Dangerous Offender on remand, because he had
previously been sentenced as a Dangerous Offender. Petitioner has pointed to no relevant
Supreme Court authority to support his claim that this notice is insufficient. Thus, Petitioner’s
Sixth Amendment notice claim must fail.
For those portions of Judge Jelderks’s F&R to which neither party has objected, this
Court follows the recommendation of the Advisory Committee and reviews those matters for
clear error on the face of the record. No such error is apparent and the Court adopts those
portions of the F&R.

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CONCLUSION
The Court ADOPTS Judge Jelderks’s Findings and Recommendation (ECF 102), as
supplemented herein. Petitioner’s habeas corpus petition (ECF 2) is DENIED. The Court
declines to issue a Certificate of Appealability on Petitioner’s claims because 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 ___
1st

day of October
_________, 20__.
18
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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