The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DUWANE ROY BARKER, Case No. 3:19-cv-0404-SU
Petitioner, ORDER
v.
BOARD OF PAROLE AND POST PRISON
SUPERVISION,
Respondent.
Michael H. Simon, District Judge.
United States Magistrate Judge Patricia Sullivan issued Findings and Recommendations
in this case on December 18th, 2019. ECF 39. Magistrate Judge Sullivan recommended that
Petitioner Duwane Roy Barker’s Petition for Writ of Habeas Corpus (ECF 2), Motion for
Evidentiary Hearing (ECF 32), and Motion to Strike (ECF 35) should be denied, that the case
should be dismissed with prejudice, and that no certificate of appealability should issue. No party
has filed objections.
Under the Federal Magistrates Act (“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 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).
If no party objects, 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.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding
that the court must review de novo magistrate judge’s findings and recommendations if objection
is made, “but not otherwise”).
Although review is not required in the absence of objections, the 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 Fed. R. Civ. P. 72(b)
recommend that “[w]hen no timely objection is filed,” the court review the magistrate judge’s
findings and recommendations for “clear error on the face of the record.”
No party having made objections, this 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 Recommendations, ECF 39. Petitioner’s Petition for
Writ of Habeas Corpus (ECF 2), Motion for Evidentiary Hearing (ECF 32), and Motion to Strike
(ECF 35) are DENIED and the case is DISMISSED WITH PREJUDICE. The Court declines
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.
DATED this 28th day of January, 2020.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge