Jenkins v. Myrick

Filing 48

ORDER - The Court ADOPTS Magistrate Judge Beckerman's Findings and Recommendation, ECF 38 . The Petition for Writ of Habeas Corpus is DENIED and the case is DISMISSED with prejudice. 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 7/2/2019 by Judge Michael H. Simon. (mja).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MICHAEL W. JENKINS,
Petitioner,

Case No. 2:16-cv-01534-SB
ORDER

v.
JOHN MYRICK,
Respondent.
Michael H. Simon, District Judge.
United States Magistrate Judge Stacie F. Beckerman issued Findings and
Recommendation in this case on January 22, 2019. ECF 38. Magistrate Judge Beckerman
recommended that the Court deny Petitioner’s Petition for Writ of Habeas Corpus (ECF 2),
dismiss this proceeding with prejudice, and decline to issue a Certificate of Appealability.
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 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
judge’s recommendations for “clear error on the face of the record.”
Petitioner filed an objection. ECF 46. Petitioner raises seven objections, in ordered list
form, without additional developed argumentation. Specifically, he takes issue with Judge
Beckerman’s conclusions that: (1) he could have raised his constitutional claims in his state court
appeals, (2) it was not excusably futile to do so, (3) Petitioner failed to present his constitutional
claims to the Oregon Supreme Court, (4) there was a state procedural rule that adequately
supported the denial of habeas relief and that rule is not unclear, inconsistently applied, or not
well established, (5) Petitioners claims are independently barred by Or. Rev. Stat. § 34.330, (6)
habeas relief is precluded, and (7) the Petition should be dismissed with prejudice and the Court
should not issue a Certificate of Appealability.

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Petitioner does not contest that he failed to raise his federal constitutional claims before
the state appellate court and the Oregon Supreme Court. ECF 28 at 4. Petitioner provides no
support for the proposition that he could not continue to raise his federal constitutional claims in
the state appellate courts because the state trial court dismissed his case on procedural grounds.
Those claims are therefore procedurally defaulted. The Court has reviewed Parker v. Hill, 2010
WL 330263 (D. Or. Jan. 21, 2010), which Petitioner relies on, and concludes that Judge
Beckerman’s reading of the case as providing no support for Petitioner’s argument is the correct
reading of the case. In the Ninth Circuit, futility may excuse exhaustion requirements, but it
provides no basis for excusing a procedural default. Smith v. Baldwin, 510 F.3d 1127, 1138-39
(9th Cir. 2007). Although Petitioner’s claims are procedurally defaulted, Judge Beckerman also
considered Respondent’s alternative argument that federal habeas relief is precluded by an
adequate and independent state rule. The Court agrees with Judge Beckerman that Petitioner
failed to seek judicial review of the order of the Oregon Board of Parole and Post-Prison
Supervision, and thus under Or. Rev. Stat §§ 34.310 and 34.330(4) he is barred from prosecuting
a writ of habeas corpus challenging the consequences of that order. See Parker, 2010 WL
330263, at *7; Templeton v. Coursey, 2017 WL 627431, at *3 (D. Or. Feb. 14, 2017) .
The Court has reviewed de novo those portions of Magistrate Judge Beckerman’s
Findings and Recommendation to which Petitioner has objected, as well as Petitioner’s brief and
supplemental brief in support of his Petition and Respondent’s response and supplemental
response to the Petition. The Court agrees with Magistrate Judge Beckerman’s reasoning
regarding both the procedural default of Petitioner’s claims and the adequate state law grounds
supporting the state court’s decision and ADOPTS those portions of the Findings and
Recommendation.

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For those portions of Magistrate 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.
The Court ADOPTS Magistrate Judge Beckerman’s Findings and Recommendation,
ECF 38. The Petition for Writ of Habeas Corpus is DENIED and the case is DISMISSED with
prejudice. 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 7nd day of July, 2019.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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