Auld v. State of Montana et al, No. 9:2010cv00070 - Document 8 (D. Mont. 2010)
Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. The Petition 1 is DISMISSED WITH PREJUDICE; a certificate of appealabilty is denied. Signed by Judge Donald W. Molloy on 7/29/2010. Mailed to Auld. (TAG, )
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Auld v. State of Montana et al Doc. 8 FILe,.. U JUt. P""1Ft 8y I 9 2010 IC/( E. OUt:F 0£P(i'fy CfiRl( IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION WILLIAM PAUL AULD, ) ) ) ) ) ) ) ) ) ) ) Petitioner, vs. STATE OF MONTANA; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents. CV 10-70-M-DWM ORDER Petitioner William Auld filed this action for a writ of habeas corpus pursuant to 28 U.S,c' § 2254. He is a state prisoner proceeding pro se. United States Magistrate Judge Jeremiah C, Lynch ordered Auld to show cause why the petition should not dismissed as time barred or procedurally defaulted. After receiving Auld's brief in response to the order, Judge Lynch entered Findings and Recommendation in this matter on July 7, 2010. Judge Lynch recommended dismissing the petition because it is both time barred and procedurally defaulted. -1- Dockets.Justia.com Auld timely objected on July 13, 2010. Therefore, he is entitled to de novo review ofthose portions of the Findings and Recommendation to which he objected. 28 U.S.C. § 636(b)(I). The portions ofthe Findings and Recommendation not specifically objected to will be reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Judge Lynch recommended denying Auld's petition as time barred because it was not filed within one year ofthe date his conviction became final. 28 U.S.C. § 2244(d)(l)(A). Judge Lynch also found the petition is procedurally defaulted because the Montana Supreme Court denied Auld's state habeas petition on the grounds that it was barred by Mont. Code Ann. § 46-22-101(2). Judge Lynch found the Montana Supreme Court denied Auld's claims based on his failure to comply with a firmly established and consistently applied state procedural requirement, without considering the merits of the federal claims. See Collier v. Bayer, 408 F.3d 1279, 1284 (9th Cir. 2005). Therefore, his federal petition is procedurally barred. Judge Lynch recognized that Auld could be excused from the time bar and procedural default if he could make a showing of actual innocence. See Schlup v. Delo, 513 U.S. 298, 327 (1995). Judge Lynch found Auld had not made a showing of actual innocence because his own statements confirm his guilt and he has not oflered anything other than his claim that he is -2- innocent. Auld objects to Judge Lynch's findings, in large part by stating conclusory allegations that Judge Lynch did not consider his filings, the Court has not considered all of the evidence, and Montana law is being unconstitutionally used to bar his petition. Auld offers no law or facts to support his statements. Judge Lynch's Findings and Recommendations demonstrate that he considered everything in both Auld's petition and brief in response to the show cause order. Auld has offered nothing to undermine Judge Lynch's finding that the petition is time barred and procedurally defaulted. Auld also argues he has met the standard for actual innocence. He merely restates his arguments from his earlier filings and offers allegations that his conviction was obtained by perjury and misrepresentation. His unsupported accusations are insufficient to meet the high standard necessary under Schlup, that "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup, 513 U.S. at 327. As Judge Lynch found, Auld's own statements show there was evidence against him that would have permitted a reasonable juror to find him guilty. Auld cannot show actual Innocence. I find no clear error in Judge Lynch's remaining findings and -3- recommendations. Accordingly, IT IS HEREBY ORDERED that Judge Lynch's Findings and Recommendation (dkt #6) are adopted in full. The Petition (dkt # 1) is DISMISSED WIlli PREJUDICE. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. The Clerk of Court is directed to enter by separate document a judgment in favor of Respondents and against Petitioner. V-DATED thisJ!iday of July, 2010. / United States I f f -4- , , District Judge strict Court
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