Opinion
3:10-cv-01255-JE
11-07-2012
GERALD OSCAR PERSON, Petitioner, v. STEVE FRANKE, Respondent.
Thomas J. Hester OFFICE OF THE FEDERAL PUBLIC DEFENDER Attorney for Petitioner Kristen E. Boyd STATE OF OREGON DEPARTMENT OF JUSTICE Attorney for Respondent
ORDER
Thomas J. Hester
OFFICE OF THE FEDERAL PUBLIC DEFENDER
Attorney for Petitioner Kristen E. Boyd
STATE OF OREGON
DEPARTMENT OF JUSTICE
Attorney for Respondent HERNANDEZ, District Judge:
Magistrate Judge John Jelderks issued a Findings and Recommendation (doc. #31) and a Supplemental Findings and Recommendation (doc. #33) on September 19, 2012, and September 25, 2012, respectively. The Magistrate Judge specifically found that petitioner has presented a successive Petition for Writ of Habeas Corpus (doc. #2) without first obtaining permission by the Ninth Circuit as required under 28 U.S.C. § 2244(b)(3)(A). Accordingly, the Magistrate Judge recommends that I (1) deny petitioner's Motion to Stay (doc. #27); (2) dismiss this action without prejudice; (3) issue a Judgment dismissing this action without prejudice; and (4) decline to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and rule 72(b) of the Federal Rules of Civil Procedure.
Because no objections to the Magistrate Judge's Findings and Recommendations were timely filed, I am relieved of my obligation to review the record de novo. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also United States v. Bernhardt, 840 F.2d 1441, 1444 (9th Cir. 1988) (de novo review required only for portions of Magistrate Judge's report to which objections have been made). Having reviewed the legal principles de novo, I find no error.
CONCLUSION
The court ADOPTS the Magistrate Judge's Findings and Recommendation (doc. #31) and Supplemental Findings and Recommendation (doc. #33). Accordingly, petitioner's Motion to Stay (doc. #27) is denied; (2) the Petition for Writ of Habeas Corpus (doc. #2) is dismissed without prejudice; and (3) I decline to issue a Certificate of Appealability on the basis 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.
_______________
MARCO A. HERNANDEZ
United States District Judge