Barrow v. Premo

Filing 37

OPINION AND ORDER: Upon review, I agree with Judge Hubels recommendation, and I ADOPT the F&R 35 as my own opinion. I decline to issue a certificate of appealability because petitioner has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Signed on 7/19/13 by Judge Michael W. Mosman. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
MYELZAC ALEXTON BARROW,
No. 6:11-cv-06383-HU
Petitioner,
OPINION AND ORDER
v.
J. PREMO,
Respondent.
MOSMAN, J.,
On June 28, 2013, Magistrate Judge Hubel issued his Findings and Recommendation
(“F&R”) [35] in the above-captioned case, recommending (1) that I deny the Petition for Writ of
Habeas Corpus [1], (2) that I deny petitioner’s request for an evidentiary hearing, and (3) that I
decline to issue a certificate of appealability. No objections were filed.
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,
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
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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 Hubel’s recommendation, and I ADOPT the F&R [35]
as my own opinion. I decline to issue a certificate of appealability because petitioner has not
“made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 19 day of July, 2013.

/s/Michael W. Mosman
MICHAEL W. MOSMAN
United States District Judge

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