Bell v. Persson

Filing 34

OPINION AND ORDER: Upon review, I agree with Judge Stewarts recommendation, and I ADOPT the F&R 30 as my own opinion. Because petitioner has made a substantial showing of the denial of a constitutional right, a certificate of appealability is granted as to the following issues: whethertrial counsel was ineffective in failing to investigate Petitioners case, causing Petitioner to enter a guilty plea that was not knowing and voluntary. See 28 U.S.C. § 2253(c)(2). Signed on 6/19/14 by Judge Michael W. Mosman. (dls)

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

WILLIAM BELL,
No. 6:12-cv-02367-ST
Petitioner,
OPINION AND ORDER
v.
ROB PERSSON, Superintendent, Oregon
State Correctional Institution,
Respondent.
MOSMAN, J.,
On April 1, 2014, Magistrate Judge Stewart issued her Findings and Recommendation
(“F&R”) [30] in the above-captioned case, recommending that Petitioner’s Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254 be DENIED. Objections [32] were filed and a response
[33] was received.
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
1 – OPINION AND ORDER

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). 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 Stewart’s recommendation, and I ADOPT the F&R [30]
as my own opinion. Because petitioner has made a substantial showing of the denial of a
constitutional right, a certificate of appealability is granted as to the following issues: whether
trial counsel was ineffective in failing to investigate Petitioner’s case, causing Petitioner to enter
a guilty plea that was not knowing and voluntary. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this

19th

day of June, 2014.

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

2 – OPINION AND ORDER