Worden v. Kelly, No. 6:2019cv00898 - Document 42 (D. Or. 2021)
Court Description: OPINION AND ORDER: I ADOPT Judge You's F. & R. (ECF 38 ) as my own opinion. I DISMISS as untimely Mr. Worden's Petition for Writ of Habeas Corpus (ECF 2 ), and I DISMISS this case with prejudice. Because Mr. Worden has not made a substantial showing of the denial of a constitutional right, a ceiiificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Signed on 6/17/2021 by Judge Michael W. Mosman. (pvh)
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Worden v. Kelly Doc. 42 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION VANCE WALLACE WORDEN, No. 6: l 9-cv-00898-YY Petitioner, v. OPINION AND ORDER BRANDON KELLY, Respondent. MOSMAN,J., On March 24, 2021, Magistrate Judge Youlee Yim You issued her Findings and Recommendation (F. & R.) [ECF 38]. Judge You recommends that I dismiss as untimely the Petition for Writ of Habeas Corpus [ECF 2], dismiss this case with prejudice, and decline to issue a ce1iificate of appealability. Petitioner Vance Wallace Worden filed Objections [ECF 40]. Upon review, I agree with Judge You's recommendation and ADOPT her F. & R. as my own opm10n. STANDARD OF REVIEW The magistrate judge makes only recommendations to the comi, to which any party may file written objections. The comi is not bound by the recommendations of the magistrate judge but retains responsibility for making the final determination. The comi is generally required to make a de nova determination regarding those portions of the repmi or specified findings or I - OPINION AND ORDER Dockets.Justia.com recommendation as to which an objection is made. 28 U.S.C. § 636(b)(l)(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 pmiions 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 paii of the F. & R. 28 U.S.C. § 636(b)(l)(C). CONCLUSION I ADOPT Judge You's F. & R. [ECF 38] as my own opinion. I DISMISS as untimely Mr. Worden's Petition for Writ of Habeas Corpus [ECF 2], and I DISMISS this case with prejudice. Because Mr. Worden has not made a substantial showing of the denial of a constitutional right, a ceiiificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. ~ DATED this jxday of June, 2021. 1&1il'!iJfUnited States District Judge 2 OPINION AND ORDER
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