Limas-Rivera v. Mills
Filing
25
Opinion and Order - Adopting Judge Papak's Findings and Recommendation 20 . Signed on 12/29/11 by Judge Michael H. Simon. (mja)
2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DAVID UBALDO LIMAS-RIVERA,
Petitioner,
v.
DON MILLS,
Respondent.
Anthony D. Bornstein
Federal Public Defender’s Office
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
John Kroger
Attorney General
Jonathan W. Diehl
Assistant Attorney General
Oregon Department of Justice
1162 Court Street, NE
Salem, Oregon 97301
Attorneys for Respondent
Opinion and Order, Page 1
No. 10-cv-1416-PK
OPINION AND ORDER
SIMON, District Judge:
On November 3, 2011, the Honorable Paul Papak, United States Magistrate Judge, filed
Findings and Recommendation (“F & R”) (Doc. # 21). 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 if no
decision had been rendered.” Dawson, 561 F.3d at 933.
Petitioner has filed timely objections to Judge Acosta's recommendation that his Petition
for Writ of Habeas Corpus (doc. # 2) be denied and the case dismissed with prejudice. After de
novo review, I adopt the F & R.
PETITIONER’S OBJECTIONS
Petitioner makes the following objections:
1.
The “implicit finding” that Limas-Rivera’s assertions regarding his trial counsel’s
conduct lack credibility and are unpersuasive (F & R p. 10)
2.
The finding that Limas-Rivera’s ineffective assistance claim is not adequately
supported.
3.
The finding that “on this record, Limas-Rivera has failed to rebut the postconviction review (“PCR”) extensive factual findings by clear and convincing
Opinion and Order, Page 2
evidence.” (F & R p. 11).
4.
The finding that Limas-Rivera has not met the AEDPA standard for habeas
corpus relief under 28 U.S.C. § 2254(d) (F & R p. 11).
5.
The recommendation that the petition should be denied.
6.
The recommendation that the District Court not grant a Certificate of
Appealability.
Limas-Rivera’s objections are not accompanied by argument, except for the statement
that he “relies on the legal arguments presented in his Memorandum of Law in Support of
Petition for Writ of Habeas Corpus filed on May 13, 2011.” (Doc. # 24)
DISCUSSION
I find no merit in Petitioner’s assertion that Judge Papak made an “implied finding” that
Limas-Rivera’s assertions lacked credibility. Judge Papak was acting within his authority in
finding Limas-Rivera’s assertions unpersuasive.
I find no factual or legal error in Judge Papak’s conclusions that Limas-Rivera’s
ineffective assistance claim was not adequately supported, that Limas-Rivera had failed to rebut
the PCR’s factual findings by clear and convincing evidence, and that Limas-Rivera had not met
the standard for habeas corpus relief under the AEDPA.
I ADOPT the Findings and Recommendation (doc. # 20).
IT IS SO ORDERED.
Dated this 29th day of December, 2011.
___/s/_________________________
Michael H. Simon
United States District Judge
Opinion and Order, Page 3
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