Andrade v. Cain

Filing 53

ORDER: The Court ADOPTS Magistrate Judge Sullivan's Findings & Recommendation 49 , and therefore, the Petition for Writ of Habeas Corpus 2 is denied. The Court declines to issue a Certificate of Appealability because Petitioner has no t made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). The motion for relief from judgment 49 is denied. Signed on 9/17/19 by Judge Marco A. Hernandez. **2 PAGE(S), PRINT ALL**(Diego Andrade, Prisoner ID: 18690116) (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DIEGO LARA ANDRADE,

No. 2:17-cv-00746-SU

Petitioner,
v.
BRAD CAIN,

ORDER
Respondent.

HERNANDEZ, District Judge:
Magistrate Judge Sullivan issued a Findings & Recommendation (#42) on September 17,
2018, in which she recommends the Court deny Petitioner's habeas corpus action and decline to
issue a Certificate of Appealability. Petitioner has timely filed objections to the Findings &
Recommendation. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1) and Federal
Rule of Civil Procedure 72(b).
When any party objects to any portion of the Magistrate Judge's Findings &
Recommendation, the district court must make a de novo determination of that portion of the

1 - ORDER

Magistrate Judge's report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932 (9th
Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
I have carefully considered Petitioner's objections and conclude there is no basis to
modify the Findings & Recommendation. I have also reviewed the pertinent portions of the
record de novo and find no other errors in the Magistrate Judge's Findings & Recommendation.
After the Findings & Recommendation was filed, Petitioner filed a motion for relief from
judgment. The motion was filed before a judgment was issued but it appears to request an
extension of time to file a memoranda supporting the habeas petition. Given that the Findings &
Recommendation had issued before Petitioner filed this motion, and that Petitioner had already
received several extensions of time in which to file his supporting memoranda, the motion is
denied.
CONCLUSION
The Court ADOPTS Magistrate Judge Sullivan's Findings & Recommendation [49], and
therefore, the Petition for Writ of Habeas Corpus [2] is denied. 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). The motion for relief from judgment
[49] is denied.
IT IS SO ORDERED.
DATED this

day of

MARCO A. HERNANDEZ
United States District Judge
2 - ORDER

, 2019.