United States District Court, D. Oregon
Michael H. Simon United States District Judge
States Magistrate Judge John Jelderks issued Findings and
Recommendation in this case on June 20, 2017. ECF 69. Judge
Jelderks recommended that Petitioner's Petition for Writ
of Habeas Corpus be denied and that certificate of
appealability (“COA”) be denied.
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'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).
those portions of a magistrate'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's findings and recommendations if objection is
made, “but not otherwise”). Although in the
absence of objections no review is required, 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's recommendations
for “clear error on the face of the record.”
Petitioner and Respondent timely filed objections to the
findings and recommendation. Petitioner objects to most of
Judge Jelderk's findings relating to the testimony of the
police officers, the consent given by Mr. Gordon Pawpa to
search the apartment, and the authority of Officer Trent
Magnuson to conduct the search beyond the living room.
Petitioner also objects to Judge Jelderk's recommendation
denying Petitioner's petition and COA. Respondent objects
that Judge Jelderks erroneously found that the issue of Mr.
Pawpa's apparent authority was sufficiently preserved for
appeal and objects that Judge Jelderks did not make a finding
relating to the actual authority of Mr. Pawpa to give consent
Court has reviewed the objections of the parties and the
underlying briefing before Judge Jelderks. The Court agrees
with the reasoning and analysis of Judge Jelderks, with two
modifications. First, the Court adds to the analysis the
finding that Mr. Pawpa had actual authority over the entire
apartment, including the bedroom. Although Judge Jelderks did
not explicitly find actual authority, he did note that
“it was evident that Pawpa had control over the
apartment, including the bedroom.” ECF 69 at 17. Thus,
Judge Jelderks implicitly found that Mr. Pawpa had actual
authority over the apartment. The express finding of actual
authority, however, does not materially change the analysis
of the findings and recommendation. Much of Judge
Jelderks' discussion considers whether Officer
Magnuson, as opposed to Officer Dustin Ballard, heard
Mr. Pawpa give any consent to search the apartment at all.
That analysis applies whether Mr. Pawpa's authority to
give consent was actual or apparent.
the Court will issue a COA. It is appropriate for the
district court to issue a COA when the petitioner has made a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “[T]he
‘substantial showing' standard for a COA is
relatively low . . . .” Jennings v. Woodford,
290 F.3d 1006, 1010 (9th Cir. 2002). It is whether
“reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Miller-El v. Cockrell, 537 U.S. 322,
338 (2003); see also Jennings, 290 F.3d at 1010
(noting that the standard “permits appeal where
petitioner can ‘demonstrate that the issues are
debatable among jurists of reason; that a court could resolve
the issues [differently]; or that the questions are adequate
to deserve encouragement to proceed further'”
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
Court finds that reasonable jurists could debate whether Mr.
Pawpa gave constitutionally-sufficient consent to search the
apartment, and thus whether there was a Fourth Amendment
violation. If there was a Fourth Amendment violation, then
reasonable jurists could also debate whether appellate
counsel gave constitutionally-sufficient assistance of
counsel and whether Oregon's post-conviction relief
court's decision finding that appellate counsel did
provide constitutionally-sufficient assistance was contrary
to or an unreasonable application of clearly established
court ADOPTS IN PART Judge Jelderk's Findings and
Recommendations (ECF 69), as supplemented herein.
Petitioner's habeas corpus petition is DENIED. The Court
issues a Certificate of Appealability pursuant to 28 U.S.C.
§ 2253(c)(2) on Petitioner's claim of ineffective
assistance of counsel based on Petitioner's appellate
counsel's failure to raise the Fourth Amendment issue in
Petitioner's direct appeal. The Court declines to issue a
Certificate of Appealability on Petitioner's other claims
because Petitioner has not made a substantial showing of the
denial of a constitutional right relating to those claims.
 The Court makes no finding regarding
the knowledge of the two police officers of Mr. Pawpa's