Wells v. Kirkegard et al, No. 4:2015cv00107 - Document 12 (D. Mont. 2016)
Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 11 Findings and Recommendations, 1 Petition for Writ of Habeas Corpus filed by George C. Wells. IT IS ORDERED that: 1.The Petition (Doc. 1) is DENIED as moot. 2.The Clerk of Court shall enter by separate document a judgment of dismissal.3.A certificate of appealability should be DENIED. Signed by Judge Brian Morris on 5/26/2016. (SLL, )
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Wells v. Kirkegard et al Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA GREAT FALLS DIVISION CV 15-107-GF-BMM GEORGE C. WELLS, Petitioner, ORDER ADOPTING MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS vs. LEROY KIRKEGARD, WARDEN ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents. George C. Wells filed a Petition for Writ of Habeas Corpus on December 4, 2015. Wells had filed a state habeas petition in 2015 that asserted that his conviction as a persistent felony offender should be considered illegal. Wells v. Kirkegard, No. OP 15-0466 (Mont. filed Sept. 29, 2015). The Montana Supreme Court determined the persistent felony offender sentence illegal. The Montana Supreme Court remanded the matter to the Eighth Judicial District Court for resentencing. Wells petition in this Court expressed confusion about why the district court had not yet resentenced him. (Doc. 1 at 2.) Judge Pinski has since resentenced Wells in Cause No. ADC-81-116. United State Magistrate Judge John Johnston 1 Dockets.Justia.com entered Findings and Recommendations in this matter on the April 27, 2016. (Doc. 11.) Judge Johnston has recommended that Well’s petition be denied as moot. (Doc. 11 at 4.) Judge Johnston also has recommended that the Clerk of Court be directed to enter by separate document a judgment of dismissal. Id. Judge Johnston has recommended further that the Court should deny a certificate of appealability. Id. Wells filed no objections to Judge Johnston’s Findings and Recommendations. When a party makes no objections, the Court need not review de novo the proposed Findings and Recommendations. Thomas v. Arn, 474 U.S. 140, 149-52 (1986). The Court will review Judge Johnston’s Findings and Recommendations, however, for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Under Article III of the United States Constitution, federal jurisdiction should be limited to actual ongoing cases or controversies. U.S. Const. Art. III, § 2, cl. 1; see also Spencer v. Kemna, 523 U.S. 1, 7 (1998). The trial court’s resentencing of Wells pursuant to the Montana Supreme Court’s remand order eliminates the “case” or “controversy” raised in Well’s petition. Well’s habeas petition should be denied as moot. The Court finds no clear error in Judge Johnston’s Findings and Recommendations and adopts them in full. 2 Accordingly, IT IS ORDERED that: 1. The Petition (Doc. 1) is DENIED as moot. 2. The Clerk of Court shall enter by separate document a judgment of dismissal. 3. A certificate of appealability should be DENIED. DATED this 25th day of May, 2016 3
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