Thunderbird v. State of Oregon

Filing 12

OPINION AND ORDER: Upon review, I agree with Judge Beckerman's recommendation and I ADOPT the F&R 9 as my own opinion. The Petition 2 is dismissed without prejudice to Mr. Thunderbird's right to re-file if the Ninth Circuit aut horizes him to do so. To the extent that Mr. Thunderbird seeks to challenge the state court's denial of his request for DNA testing, I decline to recharacterize the Petition as a civil rights complaint because the Court lacks jurisdiction unde r the Rooker-Feldman doctrine. I grant Petitioner thirty days to refile an amended complaint challenging the constitutionality of Oregon's DNA statutory scheme, although he will be unable to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(g). IT IS SO ORDERED. Signed on 12/7/2017 by Chief Judge Michael W. Mosman. (Copy of order mailed to Petitioner.) (gw)

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

KENNETH THUNDERBIRD,
No.17-cv-01117-SB
Petitioner,

v.

OPINION AND ORDER

STATE OF OREGON; MS. POPOFF;
Superintendent, Oregon State Correctional
Institution
Respondents.

MOSMAN,J.,
On November 16, 2017, Magistrate Judge Stacie F. Beckerman issued her Findings and
Recommendation (F&R) [9], recommending that Petitioner Kenneth Thunderbird's Petition for
Writ of Habeas Corpus [2] should be dismissed. Mr. Thunderbird filed Objections [7].

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)(! )(C). However, the court
is not required to review, de novo or under any other standard, the factual or legal conclusions of
1 - OPINION AND ORDER

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)(l)(C).
Upon review, I agree with Judge Beckerman's recommendation and I ADOPT the F&R
[9] as my own opinion. The Petition [2] is dismissed without prejudice to Mr, Thunderbird's
right to re-file ifthe Ninth Circuit authorizes him to do so. To the extent that Mr. Thunderbird
seeks to challenge the state court's denial of his request for DNA testing, I decline to
recharacterize the Petition as a civil rights complaint because the Court lacks jurisdiction under
the Rooker-Feldman doctrine. I grant Petitioner thirty days to refile an amended complaint
challenging the constitutionality of Oregon's DNA statutory scheme, although he will be unable
to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDE~

.

DATED this X-day of December, 2017.

2 - OPINION AND ORDER