Forbes v. Cain

Filing 44

OPINION AND ORDER: I agree with Judge Sullivan's recommendation and ADOPT the F&R 36 as my own opinion. Mr. Forbes's Petition for Writ of Habeas Corpus 3 is DENIED. In addition, I decline to issue a Certificate of Appealability because Mr. Forbes has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Signed on 4/18/18 by Judge Michael W. Mosman. **3 PAGE(S), PRINT ALL**(Tracy Forbes, Prisoner ID: 17931761) (dsg)

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

TRACY GARY SHANNON FORBES,
No. 2:16-cv-2076-SU
Petitioner,
OPINION AND ORDER

v.
BRAD CAIN,
Respondent.
MOSMAN,J.,
On November 9, 2017, Magistrate Judge Patricia Sullivan issued her Findings and
Recommendation ("F&R") [36], recommending that I DENY Mr. Forbes's Petition for Writ of
Habeas Corpus [3]. Judge Sullivan also recommended that I decline to issue a Certificate of
Appealability because Mr. Forbes has not made a substantial showing of the denial of a
constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Mr. Forbes objected [38, 40, 41 1] to the
F&R, and Mr. Cain responded [39].
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,
but retains responsibility for making the final determination. The court is generally required to
1

The Court constmes Mr. Forbes's Motion to Dismiss Brief and Findings and Recommendation
as, in part, additional objections to the F&R.
1 - OPINION AND ORDER

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)(l)(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. 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)(l)(C).
Upon review, I agree with Judge Sullivan's recommendation and ADOPT the F&R [36]
as my own opinion. Mr. Forbes's contention that his "legal assistant in the Legal Library at
SRCI" told him he could not file his memorandum supporting his habeas petition until after the
Court ruled on his objection to Mr. Cain's request for an addition extension of time does not
excuse his failure to file his brief. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.
2006) (stating a "pro se petitioner's lack of legal sophistication is not, by itself' a justification for
missing a deadline). Moreover, petitioner's failure to file his supporting brief did not affect the
analysis of his petition. His claims fail because they are procedurally defaulted and, in the
alternative, because his counsel's performance did not fall below an objective standard of
reasonableness at the time of Mr. Forbes's trial.

Ill
Ill
Ill
Ill
Ill

2 - OPINION AND ORDER

Mr. Forbes's Petition for Writ of Habeas Corpus [3] is DENIED. In addition, I decline to
issue a Certificate of Appealability because Mr. Forbes 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

day of April, 2018.

Chief United State

3 - OPINION AND ORDER