McClure v. Kroger et al

Filing 75

ORDER - Adopting Findings and Recommendation 66 . Signed on 6/13/12 by Judge Michael H. Simon. (mja) Modified on 6/14/2012 to reflect correct filing date(mja).

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

PHILIP W. McCLURE,

)
)
Petitioner,
)
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v.
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BRIAN BELLEQUE,
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Superintendent, Oregon State Penitentiary, )
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Respondent.
)

No.3:09-cv-00421-PK

ORDER ADOPTING FINDINGS AND
RECOMMENDATION

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SIMON, District Judge.
On March 5, 2012, Magistrate Judge Paul Papak issued Findings and Recommendation
(#66) in the above-captioned case. Judge Papak recommended that this court deny the Petition
for Writ of Habeas Corpus (#2), enter judgment dismissing this case with prejudice, and decline
to issue a certificate of appealability under 28 U.S.C. § 2253(c). The matter is now before me
pursuant to the Magistrates Act, 28 U.S.C. § 636(b)(1)(B), and Rule 72(b) of the Federal Rules
of Civil Procedure. Under the Magistrates 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. § 636(b)(1). If a
party files objections to a magistrate'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); Dawson v.
Marshall, 561 F.3d 930,932 (9th Cir. 2009). De novo review means that the court "considers the
matter anew, as ifno decision had been rendered." Dawson, 561 F.3d at 933.
Petitioner McClure has filed timely objections to Judge Papak's Findings and
Recommendation. After de novo review, I ADOPT Judge Papak's Findings and
Recommendation (#66) for the reasons stated therein. Accordingly, the Petition for Writ of
Habeas Corpus (#2) is DENIED, and this case is dismissed with prejudice. Because the
Petitioner has not made a substantial showing of the denial of a constitutional right, I do not issue
a certificate of appealability pursuant to 28 U.S.C. § 2253(c).
Dated this lY th day of June, 2012.

United States District Judge

ORDER - Page 2