Opinion
Civil No. 08-841-TC.
October 20, 2010
ORDER
Magistrate Judge Thomas M. Coffin filed Findings and Recommendation on July. 16, 2010, in the above entitled case. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of a magistrate judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate judge's report. See 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982).
Petitioner has timely filed objections. I have, therefore, given de novo review of Magistrate Judge Coffin's rulings.
I find no error in Magistrate Judg Coffin's Findings of Fact or Conclusions of Law. Accordingly, I ADOPT Magistrate Judge Coffin's Findings and Recommendation filed July 16, 2010, except for the recommendation concerning a certificate of appealability. Petitioner's petition (#1) is denied without prejudice for failure to state a claim. This proceeding is dismissed.
I find that petitioner has made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. 2253(c)(2) and that this cause is appropriate for appellate review. The specific issue which raises a substantial showing is denial of due process arising out of the court's post-conviction dismissal of Counts II and IV. Counsel for petitioner may prepare and submit the appropriate order for the court's approval.
IT IS SO ORDERED.
DATED this 20th day of October, 2010.