Price v. Mahoney et al, No. 1:2010cv00126 - Document 7 (D. Mont. 2011)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. The Petition 1 is DENIED and a certificate of appealability is DENIED. Signed by Judge Richard F. Cebull on 1/13/2011. Mailed to Price. (TAG, )
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Price v. Mahoney et al Doc. 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION JOHN RONALD PRICE, ) ) Petitioner, Cause No. CV-IO-126-BLG-RFC ) ) ) ) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS OF MIKE MAHONEY; ATTORNEY ) U.S. MAGISTRATE JUDGE GENERAL OF THE STATE ) OF MONTANA, ) v. Respondent. ) ) ---------------------) United States Magistrate Judge Carolyn Ostby has entered Findings and Recommendation (Doc. 5) with respect to this case. Upon service of a magistrate judge's findings and recommendation, a party has 14 days to file written objections. 28 U.S.C. § 636(b)(l). Petitioner has filed timely objections. (Doc. 6). Accordingly, the Court must make ade novo determination of those portions of the Findings and Recommendations to which objection is made. 28 U.S.c. § 636(b)(1). For the following reasons, Petitioner's objections are overruled. Petitioner's response to the Order to Show Cause failed to adequately explain why he filed his federal petition 327 days late. Petitioner is not entitled to 1 an amount of tolling sufficient to cover the entire 327 day period. Spitsyn v. Moore, 345 F.3d 796,802 (9th Cir. 2003). Petitioner does not claim that his petition was timely filed, nor could reasonable jurists find that his claims suffice to support equitable toIling for the full 327-day period that passed between expiration of the limitations period and his filing in October 20 I O. The petition must be dismissed with prejudice as time-barred. After a de novo review, the Court determines the Findings and Recommendation of Magistrate Judge Ostby are well grounded in law and fact and HEREBY ORDERS they be adopted in their entirety. Accordingly, IT IS HEREBY ORDERED that the Petition (Doc. #1) is DENIED and 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. The Clerk of Court shall notifY the parties of the making of this Order and close this case DATED this / $ day of January, ! CHARD F. CEBULL UNITED STATES DISTRICT JUDGE 2