Daniel v. Ferriter et al, No. 6:2010cv00043 - Document 9 (D. Mont. 2011)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. The Petition 1 is DISMISSED WITH PREJUDICE as procedurally barred. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 1/3/2011. Mailed to Daniel. (TAG, )

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Daniel v. Ferriter et al Doc. 9 FILED JAN 03 2011 ,;',.,TRICI( E. CUFF'!'. CLERK DePUTY ClERK, MISSOULA IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION Petitioner, vs. MIKE FERRITER; MONTANA DEPARTMENT OF CORRECTIONS; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents. ) ) ) ) CV 10-43-H-DWM-RKS ) KAREN WILKER DANIEL, ORDER ) ) ) ) ) ) ) ) ---------------------) This matter was commenced by the filing of a Petition Under 28 U.S.C. § 2254 for writ of habeas corpus on September 13,2010. After the Petitioner responded to an order to show cause, Magistrate Judge R. Keith Strong entered his Findings and Recommendations on November 16,2010. Judge Strong found that all of Petitioner's claims are procedurally defaulted, and because the default is 1 Dockets.Justia.com unexcused, the petition is barred in its entirety. Petitioner Daniel did not timely object and so has waived the right to de novo review ofthe record. 28 U.S.C. § 636(b)(I). This Court reviews the Findings and Recommendation for clear error. McDonnell Douglas Com. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists ifthe Court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422,427 (9th Cir. 2000). I can find no clear error with Judge Stong's recommendation (dkt #8) and therefore adopt it in full. IT IS HEREBY ORDERED that the Petition (dkt #1) is DISMISSED WITH PREJUDICE as procedurally barred. The Clerk of Court is directed to enter by separate document a judgment in favor of Respondents and against Petitioner. A certificate of appealability is DENIED. Dated day of January, 2011. Dona d W. MQl1 y, District Judge United StatelDi rict Court / i 2

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