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Brandon C. Nichols v. Ken Clark

March 26, 2012

BRANDON C. NICHOLS, PETITIONER,
v.
KEN CLARK, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Dale S. Fischer United States District Judge

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, the records on file, and the Report and Recommendation of the United States Magistrate Judge. Respondent has filed Objections, and the Court has engaged in a de novo review of those portions of the Report and Recommendation to which Respondent has objected.

The Magistrate Judge has recommended denial of the Petition and dismissal of this action with prejudice. Respondent objects to the Magistrate Judge's application of de novo review, rather than deferential review, to Grounds One, Two, Three, and Seven of the Petition. It is immaterial to the outcome of these proceedings whether de novo or deferential review is applied, as Petitioner's claims in Grounds One, Two, Three, and Seven fail under either standard. "Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petition will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review . . . ." Berghuis v. Thompkins, - U.S. - , -, 130 S. Ct. 2250, 2265 (2010). Accordingly, the Court accepts the findings and recommendations of the Magistrate Judge.

IT IS HEREBY ORDERED that: (1) the Petition for Writ of Habeas Corpus is denied; and (2) Judgment shall be entered dismissing the action with prejudice.

20120326

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