Thompson v. Conant

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JASON M. THOMPSON,
Plaintiff,
vs.
JOHN CONANT,
Defendant.
Case No. 3:14-cv-00256-SLG
ORDER RE PETITION FOR WRIT OF HABEAS CORPUS
Before the Court at Docket 43 is Petitioner Jason M. Thompson’s Merit Brief in
Support 	of 	his 	First 	Amended 	Petition 	for 	Writ 	of 	Habeas 	Corpus 	(Docket 	19).
Respondent John Conant filed a response at Docket 51, to which Mr. Thompson replied
at Docket 54. The Petition was referred to a United States Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B).
On October 19, 2017, Magistrate Judge Kevin F. McCoy issued an Initial Report
and Recommendation. 	The magistrate judge recommended that the petition be denied
and that this action be dismissed with prejudice. 	Mr. Thompson filed objections to the
Initial Report and Recommendation at Docket 57, to which the Government filed a
response 	at 	Docket 	58. 	The 	magistrate 	judge 	issued 	a 	Final 	Report 	and
Recommendation at Docket 59 on December 1, 2017, which addressed the objections
and continued to recommend that the Petition for Writ of Habeas Corpus be denied.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That statute
provides that a district court “may accept, reject, or modify, in whole or in part, the findings
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or recommendations made by the magistrate judge.”1 	A court is to “make a de novo
determination of those portions of the magistrate judge’s report or specified proposed
findings or recommendations to which objection is made.”2 	But as to those topics on
which no objections are filed, “[n]either the Constitution nor [28 U.S.C. § 636(b)(1)]
requires a district judge to review, de novo, findings and recommendations that the parties
themselves accept as correct.”3
The Court has reviewed the parties’ briefing, the records on file, and the decisions
of the Alaska Court of Appeals on both direct review and on the petition for post-conviction
relief. The Court has considered de novo each of the Petitioner’s objections to the Initial
Report and Recommendation. Based on that review, the magistrate judge’s Final Report
and Recommendation at Docket 59 is ACCEPTED in its entirety, and the First Amended
Petition for Habeas Corpus at Docket 19 is DENIED.
The Court further finds that Mr. Thompson has not made the requisite substantial
showing of the denial of a constitutional right, and therefore a certificate of appealability
will not be issued by this Court.4 Mr. Thompson may request a certificate of appealability
1 28 U.S.C. § 636(b)(1).
2 Id.
3 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Thomas v. Arn, 474
U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review
of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when neither
party objects to those findings.”).
4 In a 28 U.S.C. § 2254 proceeding, a petitioner may only take an appeal if a circuit or district
judge issues a certificate of appealability. See Fed. R. App. P. 22. 	Pursuant to § 2253(c)(2), the
certificate may only be issued if the petitioner “has made a substantial showing of the denial of a
constitutional right.” 	“The COA inquiry asks whether the applicant has shown that “jurists of
reason could disagree with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to proceed
further.’” Beck v. Davis, 1237 S. Ct. 759, 773 (2017). Here, Mr. Thompson has not shown that
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from the Ninth Circuit Court of Appeals.
The Clerk of Court is directed to enter a final judgment dismissing the petition
with prejudice.
DATED this 5th day of February, 2017.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
jurists of reason could disagree with the resolution of the constitutional claims presented in this
case when applying AEDPA’s highly deferential standard.
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