Opinion
Civil Case No. 05-1410-HU.
April 30, 2008
Amy Baggio, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Hardy Myers, Attorney General, Jonathan W. Diehl, Assistant Attorney General, Oregon Department of Justice, Salem, Oregon, Attorneys for Respondent.
ORDER
The Honorable Dennis J. Hubel, United States Magistrate Judge, filed Findings and Recommendation on February 22, 2008. The matter is before this court. See 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). Petitioner has filed objections and defendant has filed a response.
When either party objects to any portion of a magistrate's Findings and Recommendation concerning a dispositive motion or prisoner petition, the district court must make a de novo determination of that portion of the magistrate's report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982).
Having given a de novo review of the issues raised in the objections to the Findings and Recommendation, I find no error requiring me to reject Judge Hubel's Findings and Recommendation. I do note that the Findings and Recommendation inaccurately reports one fact. At pages 3 and 13, the Findings and Recommendation states that petitioner's fiancee "opened the door" and asked how things were going. The transcript actually reflects Officer Crabtree's testimony that petitioner's fiancee "would come and knock at the door, and say, you know, how are things going?" Tr. 30. Nevertheless, keeping this correction in mind, I conclude the state court's determination, that petitioner was not in custody while being questioned, was not contrary to Miranda v. Arizona, 384 U.S. 436 (1966) and was not based on an unreasonable determination of the facts.
Accordingly, I ADOPT Judge Hubel's Findings and Recommendation (#49), with the change noted above, and DENY the Amended Petition for Writ of Habeas Corpus (#39). This action is dismissed.
IT IS SO ORDERED.