Opinion
No. 2:10-cv-01181-SU
04-03-2012
JAMES ANDREW CHEEVER, Petitioner, v. MARK NOOTH, Respondent.
James Andrew Cheever 3878428 Snake River Correctional Institution Pro se John Kroger Attorney General Lynn David Larsen State of Oregon Department of Justice Trial Division Attorney for Defendant
ORDER
James Andrew Cheever
3878428
Snake River Correctional Institution
Pro se
John Kroger
Attorney General
Lynn David Larsen
State of Oregon Department of Justice
Trial Division
Attorney for Defendant
SIMON, District Judge.
On February 1, 2012 Magistrate Judge Patricia Sullivan filed Findings and Recommendations in this case (doc. # 33). Judge Sullivan recommended that the Petition for Writ of Habeas Corpus be denied and a judgment of dismissal entered. Magistrate Judge Sullivan also recommended that a Certificate of Appealability not be issued. No objections have been filed.
Under the Federal Magistrates Act, the court may "accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; Fed. R. Civ. P. 72(b)(3).
If, however, no objections are filed, the Magistrates Act does not prescribe any standard of review. In such cases, "[t]here is no indication that Congress, in enacting [the Magistrates Act] intended to require a district judge to review a magistrate's report[.]" Thomas v. Arn, 474 U.S. 140, 152 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (court must review de novo magistrate's findings and recommendations if objection is made, "but not otherwise").
Although in the absence of objections no review is required, the Magistrates Act "does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Rule 72(b) of the Federal Rules of Civil Procedure recommend that "[w]hen no timely objection is filed," the court review the magistrate's findings and recommendations for "clear error on the face of the record."
No objections having been made, the court follows the recommendation of the Advisory Committee and reviews Magistrate Judge Sullivan's findings and recommendations for clear error on the face of the record. No such error is apparent. Accordingly, the court ADOPTS Magistrate Judge Sullivan's Findings and Recommendation (doc. # 33).
The Petition for Writ of Habeas Corpus (doc. # 1) is DENIED. This case is dismissed with prejudice. The court declines to issue a Certificate of Appealability on the ground that 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.
_________________
Michael H. Simon
United States District Judge