Knox v. Popoff, No. 6:2017cv00104 - Document 50 (D. Or. 2018)

Court Description: OPINION & ORDER: Adopting the Magistrate's Findings and Recommendation 42 . Petitioner's Petition for Writ of Habeas Corpus 2 is Dismissed. Petitioner's Motion to Amend/Supplement Facts of Petition 37 , Amended Motion for Summary Judgment 39 , and Motion for Immediate Release 40 are Denied as Moot. Petitioner's Motion to Determine Question of Law [ 48] is accordingly Denied. I further decline to enter a certificate of appealability because Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Signed on 6/20/18 by Judge Michael W. Mosman. (gm)
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Knox v. Popoff Doc. 50 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION STEVEN KNOX, No. 6:17-cv-104-PK Petitioner, OPINION AND ORDER v. CHRISTINA POPOFF, Respondent. MOSMAN,J., On March 14, 2018 Magistrate Judge Paul Papale issued his Findings and Recommendation (F&R) [42], recommending that Petitioner's Petition for Writ of Habeas Corpus [2] should be dismissed; that Petitioner's Motion to Amend/Supplement Facts of Petition [37], Amended Motion for Summary Judgment [39], and Motion for Immediate Release [40] should be denied as moot; that a judgment of dismissal should be entered; and that I should certify that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Petitioner filed a Motion to Determine Question of Law [48], which I construe as an objection to the F&R, as well as Objections [49]. 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, 1 - OPINION AND ORDER Dockets.Justia.com but retains responsibility for making the final determination. The court is generally required to make a de novo dete1mination regarding those portions of the report or specified findings or 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 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 Papak's recommendation and I ADOPT the F&R in full. Petitioner's Petition for Writ of Habeas Corpus [2] is DISMISSED. Petitioner's Motion to Amend/Supplement Facts of Petition [37], Amended Motion for Summary Judgment [39], and Motion for Immediate Release [40] are DENIED as moot. Petitioner's Motion to Determine Question of Law [48] is accordingly DENIED. I further decline to enter a certificate of appealability because Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. DATED this ZOday of June, 2018. [\, ; ' (\ I Jl , :/ \}J\j Ii \; \sdJ( \(\; '(:>.. MICHAEL W. MOSlµAN { Chief United Statesbistrict Judge 2 - OPINION AND ORDER