Salmon v. Nooth et al

Filing 46

OPINION AND ORDER: I ADOPT Judge Coffin's F&R 41 . Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 2 is DENIED. I decline to issue a Certificate of Appealability because petitioner has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Signed on 8/9/2018 by Judge Ann L. Aiken.**2 PAGE(S), PRINT ALL**(Richard Salmon, Prisoner ID: 6180687) (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION
RICHARD W. SALMON,

Case No. 2:16-cv-01841-TC
OPINION AND ORDER

Petitioner,
vs.
MARKNOOTH,
Respondent.

AIKEN, Judge:
On June 14, 2018, Magistrate Judge Coffin filed his Findings and Recommendation
("F &R"), recommending that I deny petitioner Irvin Moreno's § 2254 petition for a writ of
habeas corpus. The matter is now before me pursuant to 28 U.S.C § 636 and Federal Rule of
Civil Procedure 72.

I review de nova those portions of the F &R to which plaintiff filed

objections. 28 U.S.C. § 636(b)(l)(C); Fed. R. Civ. P. 72(b)(3); Holder v. Holder, 392 F.3d 1009,
1022 (9th Cir. 2004).
I find no error in Judge Coffin's reasoning. Petitioner contends that Judge Coffin did not
address his argument that the Oregon Comi of Appeals violated his right to procedural due
process when it denied his request to file a supplemental brief after he had already filed his
opening brief. That denial is an improper ground for habeas relief because petitioner cannot

1 - OPINION AND ORDER

show prejudice.

Calderon v. Coleman, 525 U.S. 141, 147 (1998).

Judge Coffin did not

recommend dismissal on the grounds of procedural default; instead, he reached the merits of
each of petitioner's arguments. As a result, petitioner suffered no prejudice from the Oregon
Court of Appeals' refusal to accept his supplemental brief.
I ADOPT Judge Coffin's F&R (doc. 41). Petitioner's Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (doc. 2) is DENIED.

I decline to issue a Certificate of

Appealability because petitioner has not made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
Dated this !J}_J;;yof August 2018.

Ann Aiken
United States District Judge

2 - OPINION AND ORDER