Bob-Ray v. Kelly

Filing 40

OPINION AND ORDER. Upon review, I agree with Judge You's recommendation and I ADOPT the F&R 36 . I DENY Petitioner's Petition for Writ of Habeas Corpus 2 . I also deny a certificate of appealability because petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). This case is dismissed with prejudice. IT IS SO ORDERED. Signed on 1/22/2020 by Judge Michael W. Mosman. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MOKO FELICIANO BOB-RAY,
Petitioner,
Case No. 6:17-cv-01469-YY

v.

OPINION AND ORDER

BRANDON KELLY, Superintendent,
Oregon State Penitentiary,
Respondent.

MOSMAN, J.,
On December 18, 2019, Magistrate Judge Youlee Yim You issued her Findings and
Recommendation (“F&R”) [ECF 36], recommending that Petitioner’s Petition for Writ of
Habeas Corpus [ECF 2] should be denied, and a certificate of appealability should be denied.
Petitioner objected [ECF 38], and Respondent filed a response to the objection [ECF 39].
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
the magistrate judge as to those portions of the F&R to which no objections are addressed. See
1 – OPINION AND ORDER

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).
CONCLUSION
Upon review, I agree with Judge You’s recommendation and I ADOPT the F&R [36]. I
DENY Petitioner’s Petition for Writ of Habeas Corpus [2]. I also deny a certificate of
appealability because petitioner has not made a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2). This case is dismissed with prejudice.
IT IS SO ORDERED.
DATED this 22 day of January, 2020.
____________________________
MICHAEL W. MOSMAN
United States District Judge

2 – OPINION AND ORDER