Chyatte v. Kirkegard et al, No. 9:2016cv00001 - Document 6 (D. Mont. 2016)
Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Petition ( 1 , 2 ) is DISMISSED WITHOUT PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 4/14/2016. (TAG, )
Download PDF
<![CDATA[
Chyatte v. Kirkegard et al Doc. 6 FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION DOUGLAS JOSEPH CHYATTE, APR 1 2016 Cler!<. y.s. District Court Dtstnct Of Montana Missoula CV 16-01-M-DLC-JCL Petitioner, ORDER vs. LEROY KIRKEGARD, et al., Respondents. United States Magistrate Judge Jeremiah C. Lynch entered his Order, Findings and Recommendation on March 14, 2016, recommending dismissal of Petitioner Douglas Chyatte's ("Chyatte") application for writ of habeas corpus under 28 U.S.C. § 2254. Chyatte failed to timely object to the Findings and Recommendation, and so waived his right to de novo review of the record. 28 U.S.C. § 636(b )(1 )(C). This Court reviews for clear error those findings and recommendations to which no party objects. See McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 149 (198.5). 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) (citations omitted). Having reviewed the Findings and Recommendation, the Court agrees with -1- SCANNED Dockets.Justia.com Judge Lynch's recommendation that Chyatte's application should be dismissed without prejudice because his state postconviction proceeding is ongoing. Chyatte has thus has failed to completely exhaust the state remedies available to him and should refile his application, if necessary, upon the conclusion of his state court proceeding. There being no clear error in Judge Lynch's Findings and Recommendation, IT IS ORDERED that: (1) Judge Lynch's Findings and Recommendation (Doc. 5) are ADOPTED IN FULL. (2) Chyatte's petition (Docs. 1, 2) is DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies. (3) The Clerk of Court is directed to enter by separate document a judgment of dismissal. (4) A certificate of appealability is D Dated this I of April, 2016. Dana L. Christensen, Chief Judge United States District Court -2-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
