Benge v. Kroger et al

Filing 35

ORDER - The Court ADOPTS Judge Beckerman's Findings and Recommendation, ECF 28 . Petitioner's Second Amended Habeas Corpus Petition (ECF 13 ) 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 6/12/2017 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JOHN SHERMAN BENGE,
Plaintiff,

Case No. 2:15-cv-751-SB
ORDER

v.
MARK NOOTH,
Defendant.
Michael H. Simon, District Judge.
United States Magistrate Judge Stacie F. Beckerman issued Findings and
Recommendation in this case on April 20, 2017. ECF 28. Judge Beckerman recommended that
Petitioner’s Second Amended Habeas Corpus Petition (ECF 13) be denied and that a Certificate
of Appealability be denied on the basis that Petitioner has not made a substantial showing of the
denial of a constitutional right. See 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’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).
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Petitioner timely filed an objection. ECF 33. Petitioner argues that Judge Beckerman
erred in finding that: (1) Petitioner failed to demonstrate that his claims had some merit under
Martinez v. Ryan, 566 U.S. 1 (2012); (2) counsel’s objections to the indictment would have been
meritless; (3) the Second Amended Habeas Corpus Petitioner should be denied; and (4) a
Certificate of Appealability should be denied. The Court has reviewed de novo those portions of
Judge Beckerman’s Findings and Recommendation to which Petitioner has objected, as well as
Petitioner’s objections and Respondent’s response. The Court agrees with Judge Beckerman’s
reasoning regarding those issues and ADOPTS those portions of the Findings and
Recommendation.
For those portions of a magistrate’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’s findings and recommendations if objection is made, “but not
otherwise”). Although in the absence of objections no review is required, the Magistrates 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
recommendations for “clear error on the face of the record.”
For those portions of Judge Beckerman’s Findings and Recommendation 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.

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The Court ADOPTS Judge Beckerman’s Findings and Recommendation, ECF 28.
Petitioner’s Second Amended Habeas Corpus Petition (ECF 13) 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 12th day of June, 2017.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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