Opinion
No. 2:16-cv-00130-SU
02-16-2018
ROGER LANCE HENDERSHOT, Petitioner, v. MARK NOOTH, Respondent.
OPINION AND ORDER MOSMAN, J.,
On November 13, 2017, Magistrate Judge Patricia Sullivan issued her Findings and Recommendation (F&R) [52], recommending that Petitioner's Petition for Writ of Habeas Corpus [2] should be DENIED and that his Motion for Evidentiary Hearing and Appointed Counsel [47] should be DENIED. Judge Sullivan further recommended that the Court should enter a judgment dismissing this case with prejudice and that the court should decline to issue a Certificate of Appealability. Petitioner filed Objections [55] and a Motion for Reconsideration for Appointment of Counsel [54].
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 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 Sullivan's recommendation and I ADOPT the F&R [52] as my own opinion. Petitioner's Petition for Writ of Habeas Corpus [2] is DENIED. Petitioner's Motion for Evidentiary Hearing and Appointed Counsel [47] is also DENIED. For the same reasons, Petitioner's Motion for Reconsideration for Appointment of Counsel [54] is DENIED. I agree with Judge Sullivan that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2), and thus I DECLINE to issue a Certificate of Appealability.
IT IS SO ORDERED.
DATED this 16th day of February, 2018.
/s/_________
MICHAEL W. MOSMAN
Chief United States District Judge