Vosgien v. Kilmer

Filing 33

ORDER - Adopting Findings and Recommendation 29 . Signed on 5/7/12 by Judge Michael H. Simon. (mja)

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

KELLY J. VQSGIEN,

Petitioner,

v.
GARY KILMER,

Respondent.

Anthony D. Bomstein
Federal Public Defender's Office
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
John Kroger
Attorney General
Andrew D. Hallman
Assistant Attorney General
Oregon Department of Justice
1162 Court Street, NE
Salem, Oregon 97301
Attorneys for Respondent

Opinion and Order, Page 1

No.3:11-cv-134-ST
OPINION AND ORDER

SIMON, District Judge:

On April 4, 2012, the Honorable Janice Stewart, United States Magistrate Judge, filed
Findings and Recommendation ("F & R") (Doc. # 29). The matter is now before me pursuant to
the Magistrates Act, 28 U.S.C. § 636(b)(1)(B), and Rule neb) 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 has filed timely objections to Judge Stewart's recommendation that his Petition
for Writ of Habeas Corpus (doc. # 1) be dismissed with prejudice as untimely, but that a
Certificate of Appealability be issued on the question of whether Petitioner has made a showing
of actual innocence sufficient to excuse the procedural deficiencies of his Petition. After de novo
review, I adopt the F & R.
PETITIONER'S OBJECTIONS

Petitioner objects to the following findings and recommendations:
1.

The finding that "it is difficult to conclude that petitioner's case is one of the
'extraordinary' cases of innocence contemplated by Schlup. "

2.

The findings that Petitioner failed to make the requisite showing for passing
through the actual innocence gateway.

Opinion and Order, Page 2

3.

The fmding that Petitioner "is unable to excuse his untimely filing through a
showing of actual innocence."

4.

The recommendation that the habeas petition be dismissed.

Petitioner's objections are not accompanied by arguments other than those made before
the Magistrate Judge.
Upon de novo review, the court fmds no error in Judge Stewart's conclusions.
Accordingly, the court ADOPTS the Findings and Recommendation (doc. # 29).
IT IS SO ORDERED.
Dated this

7th

day of May, 2012.

Michael H. Simon
United States District Judge

Opinion and Order, Page 3