United States District Court, D. Oregon
Michael H. Simon, United States District Judge
States Magistrate Judge Patricia Sullivan issued Findings and
Recommendation in this case on April 8, 2019. ECF 120.
Magistrate Judge Sullivan recommended that the Petition for
Writ of Habeas Corpus (ECF 1) should 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 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).
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.”
timely filed an objection, listing several sentences in the
Findings and Recommendation to which he objected. ECF 122.
The Court has reviewed de novo those portions of
Magistrate Judge Sullivan's Findings and Recommendation
to which Petitioner has objected, as well as Petitioner's
objections and Respondent's response. The Court agrees
with Judge Sullivan's reasoning regarding the denial of
the Writ of Habeas Corpus and ADOPTS those portions of the
Findings and Recommendation.
takes issue with Judge Sullivan's (and the
post-conviction review (PCR) court's) conclusion that
trial counsel's failure to obtain an expert witness on
child suggestibility was reasonable because trial counsel
consulted with one expert, who described Petitioner's
case as, “Ouch, bad facts.” The expert witness
whom trial counsel consulted with stated that he did not see
problems with suggestibility and stated that there was no
favorable opinion he could give. Trial counsel reasonably
decided that an expert witness would do more harm to
petitioner's case on cross examination by the prosecutor
and declined to retain an expert.
also objected to Judge Sullivan's conclusion that the PCR
court acted reasonably in denying Petitioner's argument
that his trial counsel was ineffective because she failed to
object more than once on the grounds of vouching testimony
and move for a new trial. Judge Sullivan correctly noted that
Petitioner's trial counsel did object on vouching
grounds, but her objection was overruled, and it was a
reasonable trial strategy not to repeatedly make the same
objection that the judge had just overruled. Furthermore, the
underlying issue of whether the challenged statements
constituted vouching testimony is an issue of state law.
See Easter v. Mills, 239 Or.App. 209, 243 (2010).
Thus, the PCR court did not unreasonably apply clearly
established federal law.
Petitioner objected to Judge Sullivan's conclusion that a
witness's diagnosis of sexual abuse in the absence of
physical evidence to support such a diagnosis amounted to
impermissible vouching testimony. First, the Court notes that
there was physical evidence of abuse in this case, so cases
such as State v. Southard, 347 Or. 127 (2009), which
held that a medical diagnosis of sexual abuse in the absence
of physical evidence is impermissible, are not dispositive.
See ECF 120 at 11 n.2. Additionally, whether or not a
witness's testimony constituted impermissible vouching is
a question of state law.
those portions of Magistrate Judge Sullivan'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.
Court ADOPTS Magistrate Judge Sullivan's
Findings and Recommendation, ECF 120. Petitioner's
Petition for a Writ of Habeas Corpus (ECF 1) is DENIED. 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.