# Blancas-Perez v. Kelly

> District Court, D. Oregon · January 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10392841

## Case

- **Court:** District Court, D. Oregon
- **Decided:** January 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10392841

## How later opinions describe it (automated extraction)

- rejecting the Fourth Circuit’s requirement that a district court must consider new arguments raised in objections to a magistrate judge’s findings and recommendation
- discussing the court’s discretion to consider new arguments raised in objections

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JILDARDO BLANCAS-PEREZ, Case No. 6:20-cv-119-JR

Petitioner, ORDER

v.

BRANDON KELLY,

Respondent.

Michael H. Simon, District Judge.

United States Magistrate Judge Jolie A. Russo issued Findings and Recommendation in
this case on December 21, 2020. ECF 19. Judge Russo recommended that this Court deny
Petitioner’s Petition for Writ of Habeas Corpus and deny a certificate of appealability.
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).
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.”); 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 in the absence of objections no review is required, the Magistrates 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 recommendations for “clear error on the face of the record.”
Petitioner objected to the Findings and Recommendation, arguing that Judge Russo did
not properly analyze that Petitioner’s constitutional rights were violated by a legally deficient
indictment and that he is innocent based on legal errors. The Court has reviewed de novo those

portions of Judge Russo’s Findings and Recommendation to which Petitioner has objected, as
well as Petitioner’s objections and Respondent’s response. The Court agrees with Judge Russo’s
reasoning that legal insufficiency is not actual innocence and ADOPTS that portion of the
Findings and Recommendation. The Court declines to consider any new argument raised by
Petitioner in his objections. See Jones v. Blanas, 393 F.3d 918, 935 (9th Cir. 2004) (discussing
the court’s discretion to consider new arguments raised in objections); Brown v. Roe, 279
F.3d 742, 746 (9th Cir. 2002) (rejecting the Fourth Circuit’s requirement that a district court
must consider new arguments raised in objections to a magistrate judge’s findings and
recommendation).
For those portions of Judge Russo’s Findings and Recommendation to which neither
party has objected, this Court follows the recommendation of the Advisory Committee and
reviews those matters for clear error on the face of the record. No such error is apparent.
The Court ADOPTS Judge Russo’s Findings and Recommendation, ECF 19. 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 22nd day of January, 2021.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392841. Public record. Not legal advice.