Ros v. Myrick

Filing 113

ORDER - The Court ADOPTS Judge Beckerman's Findings and Recommendation, ECF 100 . The Court DENIES Petitioner's Third Amended Petition for Writ of Habeas Corpus, ECF 74 . The Court declines 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 12/7/2022 by Judge Michael H. Simon. (mja)

Case 2:17-cv-00616-SB

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RUSSEL ROS,
Petitioner,

Case No. 2:17-cv-616-SB
ORDER

v.
ERIN E. REYES,1
Superintendent,
Two Rivers Correctional Institution
Respondent.
Michael H. Simon, District Judge.
United States Magistrate Judge Stacie Beckerman issued Findings and Recommendation
(F&R) in this case on July 1, 2022, recommending that the Court deny Petitioner’s Third
Amended Petition for Writ of Habeas Corpus and decline to issue a certificate of appealability.
ECF 100. 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.

1

Petitioner notes that he has been transferred to Two Rivers Correctional Institution,
which is led by superintendent Erin E. Reyes, and therefore Ms. Reyes is the appropriate
Respondent in this case. The Court substitutes Ms. Reyes as respondent in place of Garrett
Laney, Superintendent of Oregon State Correctional Institution, as previously captioned.

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§ 636(b)(1). If a party objects to a magistrate judge’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).
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 absent objections no review is required, the 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 Ros timely objected to the F&R. Petitioner first objects to the conclusion that,
under Martinez v. Ryan, 566 U.S. 1 (2012), Petitioner failed to overcome the procedural default
of his ineffective assistance of counsel claim. This claim is based on trial counsel’s failure to
object during a pretrial hearing discussing the requirement that the mother of the child victims be
present at trial. The Court has reviewed Petitioner’s claim de novo. The Court agrees with, and
adopts, Judge Beckerman’s analysis. Petitioner’s claim is based on statements given by the trial
court admonishing the witness to be available and, as Judge Beckerman points out, there is no
evidence that a contemporaneous objection by trial counsel to those statements would have been
sustained by the trial court. Thus, Petitioner fails to show the requisite prejudice.

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Petitioner next objects to the conclusion in the F&R that Petitioner’s claim of vouching
fails to meet the Martinez standard. The Court has reviewed this issue de novo and adopts this
portion of the F&R. Petitioner’s third objection is that Judge Beckerman erroneously concluded
that Petitioner failed to show actual innocence under Schlup v. Delo, 513 U.S. 298 (1995), either
to overcome procedural default or to receive substantive relief. Petitioner states that he
“acknowledges the legal standards articulated” by Judge Beckerman but objects to the
conclusion that he does not meet those standards. Petitioner, however, offers no argument or
reason to depart from the analysis contained in the F&R. Judge Beckerman correctly analyzed
that Petitioner’s new evidence amounted to a self-serving declaration and the affidavits of family
and friends, all executed many years after trial, which cannot support relief based on claimed
actual innocence. The Court adopts this portion of the F&R.
Petitioner also objects that if the Court can consider his ineffective assistance of counsel
claims under the actual innocence gateway, then Petitioner objects to the F&R’s denial of his
claim relating to the presentation of evidence of autism and requests that the claim be considered
under the actual innocence gateway. Because the Court adopts Judge Beckerman’s conclusion
foreclosing the actual innocence gateway, Petitioner’s request that his claim relating to the
autism evidence should be considered under the actual innocence gateway also is foreclosed.
Petitioner’s fifth objection is that Judge Beckerman erred in rejecting Petitioner’s claim
that his statements to law enforcement were involuntary and thus violated Petitioner’s Fifth
Amendment rights and in determining that the state court was entitled to deference on this point.
Judge Beckerman found that the Oregon court correctly applied relevant law to determine
whether a confession is involuntary and also found that the trial court’s determination did not fall
outside a reasonable application of clearly established Supreme Court precedent. The factual

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discussion in the F&R, including that Petitioner was advised of his Miranda warnings before
each statement and did not experience any apparent coercive police activity, shows the
reasonableness of the trial court’s determination that Petitioner’s statements were voluntary. The
Court adopts this portion of the F&R.
Petitioner’s sixth objection is to the F&R’s rejection of Petitioner’s claim that the trial
court erred in failing to remove an outdoor sign on courthouse grounds acknowledging National
Child Abuse Prevention Month during trial. The Court has reviewed this issue de novo and
adopts this portion of the F&R. Petitioner’s final objections challenge the F&R’s denial of his
claim based on cumulative error and the recommendation that the Court deny the petition
without a certificate of appealability. The Court has considered these remaining objections de
novo and adopts these portions of the F&R. For those portions of the F&R 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, and the Court
adopts those portions of the F&R.
CONCLUSION
The Court ADOPTS Judge Beckerman’s Findings and Recommendation, ECF 100. The
Court DENIES Petitioner’s Third Amended Petition for Writ of Habeas Corpus, ECF 74. The
Court declines 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.
DATED this 7th day of December, 2022.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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