Sanders v. Franke

Filing 31

OPINION AND ORDER. Upon review, I agree with Judge You's recommendation and ADOPT the F&R 29 as my own opinion. Petitioner's Petition for Writ of Habeas Corpus 2 is DENIED, and this case is DISMISSED with prejudice. Additionally, I decline to issue a Certificate of Appealability 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 8/1/2017 by Judge Michael W. Mosman. (pvh)

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

DOMINICKE SANDERS,
No. 2:16-cv-01751-YY
Petitioner,
OPINION AND ORDER
v.
STEVE FRANKE,
Respondent.

MOSMAN, J.,
On July 5, 2017, Magistrate Judge Youlee Yim You issued her Findings and
Recommendation (“F&R”) [29], recommending that Petitioner’s Petition for Writ of Habeas
Corpus [2] should be DENIED and the case should be DISMISSED. She also recommends that I
decline to issue a Certificate of Appealability because Petitioner has not made a substantial
showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Neither party
objected to the F&R.
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,
1 – OPINION AND ORDER

but retains responsibility for making the final determination. The court is generally required to
make a de novo determination regarding those portions of the report or specified findings or
recommendations 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 with 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 You’s recommendation and ADOPT the F&R [29] as
my own opinion. Petitioner’s Petition for Writ of Habeas Corpus [2] is DENIED, and this case is
DISMISSED with prejudice. Additionally, I decline to issue a Certificate of Appealability
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.
1st
DATED this ______ day of August, 2017.

/s/ Michael W. Mosman
____________________________
MICHAEL W. MOSMAN
Chief United States District Judge

2 – OPINION AND ORDER