Lunetta v. Amsberry ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PENDLETON DIVISION NICHOLAS EMILIO LUNETTA, Petitioner, No. 2:20-cv-01508-CL v. ORDER BRIGETTE AMSBERRY, Respondent. _______________________________________ AIKEN, District Judge. This case comes before the Court on a Findings and Recommendation (“F&R”) filed by Magistrate Judge Mark Clarke. ECF No. 44. Judge Clarke recommends that the Petition for Writ of Habeas Corpus, ECF No. 1, be denied. 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 judge.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate judge’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). For those portions of a magistrate judge’s findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate’s report to which no objections are filed.”). Although no review is required in the absence of objections, the Magistrates Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Id. at 154. The Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that “[w]hen no timely objection is filed,” the court should review the recommendation for “clear error on the face of the record.” In this case, Petitioner has filed Objections, ECF No. 49, and Respondent has filed a Response, ECF No. 50. The Court has reviewed the F&R and the record and finds no error. The F&R, ECF No. 44, is ADOPTED and the Petition for Writ of Habeas Corpus, ECF No. 1, is DENIED. The Court concurs with Judge Clarke’s conclusion that Petitioner has not made a substantial showing of the denial of a constitutional right and so DENIES a Certificate of Appealability. See 28 U.S.C. § 2253(c)(3). It is so ORDERED and DATED this _2_6_t_h_ day of July 2023. /s/Ann Aiken ANN AIKEN United States District Judge