Balogh v. Kilmer
Filing
56
OPINION AND ORDER: Upon review, I agree with Judge Acostas recommendation, and I ADOPT the F&R 49 as my own opinion. Signed on 4/3/13 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JEFFREY ALBERT BALOGH,
No. 3:10-cv-01283-AC
Petitioner,
OPINION AND ORDER
v.
GARY KILMER, Superintendent,
Oregon State Correctional Institution,
Respondent.
MOSMAN, J.,
On November 29, 2012, Magistrate Judge Acosta issued his Findings and
Recommendation (“F&R”) [49] in the above-captioned case, recommending that the Petition for
Writ of Habeas Corpus [2] be denied and that a judgment be entered dismissing this case. Judge
Acosta also recommended that I decline to issue a Certificate of Appealability on the basis that
petitioner has not made a substantial showing of the denial of a constitutional right pursuant to
28 U.S.C. § 2253(c)(2). Petitioner objected [54], and respondent responded [55] to petitioner’s
objections.
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,
1 – OPINION AND ORDER
but retains responsibility for making the final determination. The court is generally required to
make a de novo determination regarding those portions of the report or specified findings or
recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(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. See
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 under 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)(1)(C).
Upon review, I agree with Judge Acosta’s recommendation, and I ADOPT the F&R [49]
as my own opinion.
IT IS SO ORDERED.
DATED this
3rd day of April, 2013.
/s/ Michael W. Mosman ____
MICHAEL W. MOSMAN
United States District Judge
2 – OPINION AND ORDER
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