Leaverton v. Nooth, No. 2:2012cv01205 - Document 30 (D. Or. 2014)

Court Description: OPINION AND ORDER: Upon review, I agree with Judge Hubels recommendation, and I ADOPT the F&R 26 as my own opinion. Signed on 1/2/14 by Judge Michael W. Mosman. (dls)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PENDLETON DIVISION MICHAEL EUGENE LEAVERTON, No. 2:12-cv-01205-HU Petitioner, OPINION AND ORDER v. MARK NOOTH, Superintendent, Snake River Correctional Institution, Respondent. MOSMAN, J., On November 20, 2013, Magistrate Judge Hubel issued his Findings and Recommendation ( F&R ) [26] in the above-captioned case, recommending that the petition for writ of habeas corpus [1] should be DENIED, and the proceeding dismissed with prejudice. Judge Hubel recommended that a certificate of appealability be DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right. (F&R [26] at 19.) Petitioner objected [28] and Respondent responded [29]. 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 1 OPINION AND ORDER 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 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 [26] as my own opinion. IT IS SO ORDERED. DATED this 2nd day of January, 2014. /s/ Michael W. Mosman MICHAEL W. MOSMAN United States District Judge 2 OPINION AND ORDER

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