United States District Court, D. Oregon
OPINION AND ORDER
Michael H. Simon United States District Judge
States Magistrate Judge Stacie F. Beckerman issued Findings
and Recommendation (“F&R”) in this case on
January 25, 2018. Judge Beckerman recommended that the Court
deny Petitioner's Amended Petition for Writ of Habeas
Corpus and dismiss the proceeding with prejudice. Judge
Beckerman also recommended that the Court issue a Certificate
of Appealability on the issue of whether cause exists to
excuse Petitioner's procedural default of Ground Eight.
The State objects to Judge Beckerman's finding that
Ground Eight is timely because it relates back to Ground
Seven in Petitioner's original habeas petition, and to
Judge Beckerman's recommendation that the Court grant a
Certificate of Appealability. Petitioner objects to Judge
Beckerman's general conclusion that habeas relief should
be denied, to her conclusion that an evidentiary hearing was
not necessary, to Judge Beckerman's findings on Grounds
One and Six for the reasons stated in Petitioner's
previous filings, and to Judge Beckerman's conclusion
that cause does not exist to excuse Petitioner's
procedural default of Ground Eight. The Court has reviewed
Petitioner's original and amended habeas petitions, both
sides' briefs before Judge Beckerman, Judge
Beckerman's F&R, and the parties' objections and
responses. The Court adopts Judge Beckerman's Findings
and Recommendation with respect to Grounds One through Seven,
and with respect to the timeliness of Ground Eight. The Court
concludes, however, that habeas relief is warranted based on
Petitioner's Ground Eight.
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.”
Grounds One Through Seven
Grounds One and Six
objects to Judge Beckerman's findings on Ground One and
Ground Six for the reasons stated in Petitioner's
previous filings. Petitioner provides no other specific
objects to Judge Beckerman's Findings and Recommendation.
The Court has reviewed Petitioner's previous arguments
relating to Grounds One and Six and adopts Judge
Beckerman's Findings and Recommendation with respect to
Grounds Two, Three, Four, Five, and Seven
also purports to object to Judge Beckerman's general
conclusion that Petitioner's claim for habeas relief
should be denied. A “general” objection to a
Finding and Recommendation does not meet the “specific
written objection” requirement of Rule 72(b) of the
Federal Rules of Civil Procedure. See, e.g., Velez-Padro
v. Thermo King de Puerto Rico, Inc., 465 F.3d 31, 32
(1st Cir. 2006) (“Conclusory objections that do not
direct the reviewing court to the issues in controversy do
not comply with Rule 72(b)”). Thus, the Court construes
Petitioner's arguments as objecting only to Grounds One,
Six, and Eight. The Court reviews Judge Beckerman's
findings on the remaining grounds for clear error and finds
none. Thus, Judge Beckerman's Findings and Recommendation
on these grounds is adopted.
also objects to Judge Beckerman's recommendation that the
district court deny an evidentiary hearing. Petitioner argues
that, at a minimum, this Court should hold an evidentiary
hearing on the alleged procedural default of Ground Eight.
The Court concludes that no evidentiary hearing is necessary.
State objects to Judge Beckerman's finding that Ground
Eight is timely because it relates back to Ground Seven in
Petitioner's original habeas petition. The Court has
reviewed this finding de novo and adopts Judge
Beckerman's Findings and Recommendation on this ground.
The State also objects that Ground Eight is futile; as
discussed below, the Court disagrees.
trial, Noelle Gibson, a nurse at the Children's Center of
Clackamas County, testified that she examined the alleged
victim in this case, C.Y. ECF 19-1 at 166-201. Nurse Gibson
testified that the primary role and function of the
Children's Center is to complete a medical evaluation of
children suspected to be victims of abuse, to conduct an
interview, and to make treatment recommendations.
Id. at 169. Nurse Gibson conducted a physical
examination of C.Y., and was also present during an interview
in which C.Y. indicated that she had inappropriately been
portions of Nurse Gibson's direct examination relevant to
this dispute are as follows:
Q. . . . Have you become familiar when you've worked both
at OHSU and at the Children's Center in your professional
capacity about manners or mechanisms to which children
disclose, younger children disclose sexual abuse?
Q. Okay. Is it uncommon for children to disclose
A. No, it's not.
Q. Okay. And when I say disclose incrementally what does that
mean to you?
A. Oftentimes kids will make a disclosure to a person that
they feel comfortable and safe with and talk about a little
bit of what has happened, and they do this to kind of test of
[sic] the waters, see what kind of response they're going
to get, see what negative things happen, what positive things
happen, and if they feel supported and feel that they're
going to be kept safe, then oftentimes as time passes and as
they feel safer more information is disclosed.
Q. Okay. And is this phenomenon unusual or controversial in
A. It's not unusual.
Q. Okay. Is it fair to say that a number of different
variables can effect [sic] how a child ...