Opinion
Civil No. 07-1217-PK.
November 1, 2010
Harold P. DuCloux, III, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
John R. Kroger, Attorney General, Lynn David Larsen, Attorny-In-Charge, Department of Justice, Salem, Oregon, Attorneys for Respondent.
ORDER
Magistrate Judge Paul Papak filed his Findings and Recommendation on September 9, 2010. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of the Magistrate's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate's report.See 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982).
Petitioner has filed timely objections. I have, therefore, given the file of this case a de novo review. I find no error. Accordingly, I ADOPT the Findings and Recommendation #52 of Magistrate Judge Papak. Petitioner's request for an evidentiary hearing is denied on the basis that petitioner's free-standing claim of actual innocence is not properly before the court. Finally, because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 1 day of November, 2010