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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

C. BLANKET GONZALEZ-AGUILERA,

Petitioner,

v.

MARK NOOTH,

Respondent.

Case No. 2:16-cv-0278-AC

ORDER

Michael H. Simon, District Judge.

United States Magistrate Judge V. Acosta issued Findings and Recommendation in this 

case on March 14, 2017. ECF 43. Judge Acosta recommended that Petitioner’s Amended Writ 

for Habeas Corpus be denied.

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, 

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“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 timely filed an objection. ECF 45. Petitioner argues that Judge Acosta failed 

properly to consider the gravity of the state trial court and trial counsel’s alleged constitutional 

errors regarding the two jury questions, the failure of counsel to move to exclude the “show up” 

identification, and the failure of counsel to request a lesser included instruction, and the harm 

those errors allegedly caused Petitioner. The Court has reviewed de novo those portions of Judge 

Acosta’s Findings and Recommendation to which Petitioner has objected, as well as Petitioner’s 

objections and his underlying Amended Petition. The Court agrees with Magistrate Judge 

Acosta’s reasoning regarding these issues and ADOPTS those portions of the Findings and 

Recommendation.

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For those portions of Magistrate Judge Acosta’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 Magistrate Judge John V. Acosta’s Findings and Recommendation, 

ECF 43. Petitioner’s Amended Petition for Writ of Habeas Corpus (ECF 31) 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. § 2253(c)(2).

IT IS SO ORDERED.

DATED this 8th day of May, 2020.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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