Werby v. Nooth

Filing 58

ORDER: Adopting the Magistrate's Findings and Recommendation 54 : The Petition for Writ of Habeas Corpus 2 is Denied and this case is Dismissed with prejudice. A Certificate of Appealability shall issue. Signed on 3/7/11 by Judge Garr M. King. (gm)

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION JAMES WALTER WERBY, Petitioner, ORDER vs. BRIAN BELLEQUE, Respondent. Civil Case No. 08-1381-PK

Nell Brown Assistant Federal Public Defender 101 SWMain Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner

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John R. Kroger Attorney General Jonathan W. Diehl Assistant Attorney General Oregon Depatlment of Justice 1162 Court Street, NE Salem, Oregon 97301

Attorneys for Respondent

KING, Judge: The Honorable Paul Papak, United States Magistrate Judge, filed Findings and Recommendation on December 14,2010. The matter is now before me pursuant to 28 U.S.c. § 636(b)(1)(8) and Rule 72(b) of the Federal Rules of Civil Procedure. Decisions on dispositive issues under 28 U.S.C. § 636(b)(1)(8) are reviewed de novo. United States v. Raddatz, 447 U.S. 667,673 (1980); 8han v. NME Hospitals. Inc., 929 F.2d 1404, 1414 (9th Cir. 1991). When a palty objects to any potlion of the Magistrate's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate's report. 28 U.S.C. § 636(b)(1)(C); United States v. Remsing. 874 F.2d 614 (9th Cir. 1989). Petitioner objects to the Magistrate Judge's recommendation that his Petition for Writ of Habeas Corpus be dismissed with prejudice and that the COUll not issue a Certificate of Appealability. I have considered defendants' objections and given the Findings and Recommendation de novo review. I ADOPT the Magistrate Judge's Findings and Recommendations (doc. # 54), except for the recommendation that a Certificate of Appealability not be issued. The Petition for Page 2 - ORDER

Writ of Habeas Corpus (doc. # 2) is DENIED and this case is dismissed with prejudice. A Celiificate of Appealability shall issue. IT IS SO ORDERED. Dated this

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GalT IVf. King United States District Judge

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