Smith v. Hall

Full title: ALBY ARDELL SMITH, Petitioner, v. GUY HALL, Respondent

Court: United States District Court, D. Oregon, Portland Division

Date published: Aug 3, 2010

08-CV-312-HU (D. Or. Aug. 3, 2010)

Opinion

08-CV-312-HU.

August 3, 2010

STEVEN T. WAX, Federal Public Defender, ANTHONY D. BORNSTEIN, Assistant Federal Public Defender, Portland, OR., Attorneys for Petitioner.

JOHN KROGER, Attorney General, LYNN DAVID LARSEN, Assistant Attorney General, Oregon Department of Justice, Salem, OR., Attorneys for Respondent.

ORDER

ANNA BROWN, District JudgePage 2

Magistrate Judge Dennis James Hubel issued Findings and Recommendation (#36) on March 10, 2010, in which he recommends the Court deny Petitioner Alby Ardell Smith's Petition for Writ of Habeas Corpus (#1), dismiss this matter with prejudice, and deny Petitioner a Certificate of Appealability. Petitioner filed timely objections to the Findings and Recommendation. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).

When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1). See also United States v. Bernhardt, 840 F.2d 1441, 1444 (9^th Cir. 1988); McDonnell Douglas Corp. v. Commodore Business Mach., Inc., 656 F.2d 1309, 1313 (9^th Cir. 1981), cert. denied, 455 U.S. 920 (1982).

This Court has reviewed the pertinent portions of the record de novo. Based on the foregoing, the Court adopts that portion of the Findings and Recommendation in which the Magistrate Judge recommends the Court deny the Petition for Writ of Habeas Corpus and dismiss this matter with prejudice.

With respect to the Certificate of Appealability, the Supreme Court has held:

[W]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue (and an appeal of the district court's order may be taken) if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 478 (2000). The court must resolve any "doubts about the propriety of a COA in the petitioner's favor." Rhoades v. Henry, 598 F.3d 511, 518 (9^th Cir. 2010). This Court finds Petitioner has established "jurists of reason would find it debatable whether his petition states a valid claim of the denial of a constitutional right."

Accordingly, the Court does not adopt that portion of the Findings and Recommendation in which the Magistrate Judge recommended the Court deny Petitioner a Certificate of Appealability.

CONCLUSION

For these reasons, the Court ADOPTS that portion of Magistrate Judge Hubel's Findings and Recommendation (#36) in which he recommends the Court deny the Petition (#1) for Writ of Habeas Corpus and DISMISSES this matter with prejudice.

The Court DECLINES to ADOPT that portion of the Findings and Recommendation in which the Magistrate Judge recommends the Court deny Petitioner a Certificate of Appealability.

IT IS SO ORDERED.