Kessel v. Dooley et al, No. 2:2011cv00035 - Document 6 (D. Mont. 2011)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Kessel's petition 1 is DISMISSED for lack ofjurisdiction, his motion to proceed in forma pauperis 2 is DENIED AS MOOT, and a certificate of appealability is DENIED. Signed by Judge Richard F. Cebull on 8/8/2011. Mailed to Kessel. (TAG, )
Download PDF
Kessel v. Dooley et al Doc. 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION ) ) Petitioner, ) ) v. ) ) ROBERT DOOLEY; ATTORNEY) GENERAL OF THE STATE OF ) MONTANA, ) ) Respondents. ) JOHN KESSEL, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE ­­­­­­­­­­­­­­­­­­­­­­) United States Magistrate Judge Carolyn Ostby has entered Findings and Recommendation (doc. 4) with respect to Kessel's 28 U.S.c, § 2254 petition for writ of habeas corpus. Doc. 1. Judge Ostby recommends the petition be dismissed for lack ofjurisdiction as a second petition challenging the same conviction. Judge Ostby further recommends Kessel's motion for leave to proceed in forma pauperis be denied as moot. Upon service of a magistrate judge's tlndings and recommendation, a party has 14 days to file written objections. 28 U.S.C. § 636(b)(1). Kessel has filed timely objections. Doc. 5. Accordingly, the Court must make a de novo 1 determination ofthose portions of the Findings and Recommendations to which objection is made. 28 U.S.C. § 636(b)(1). For the following reasons, Kessel's objections are overruled. Kessel's first objection is that Judge Ostby erred in concluding that he misrepresented the amount of money in his prison trust account. Kessel, however, admits in his objection that he did not claim the "meager" amount of money because he does not receive W­2's or 1099 forms on this income and is not required to pay income tax on it. In any event, Judge Ostby also concluded the motion to proceed in forma pauperis was moot because Kessel's petition must be dismissed for lack ofjurisdiction. Second, Kessel objects to the denial of his petition on the grounds that he wrote the Clerk of Court for a sentence modification form and they sent him the § 2254 form. Regardless, this does not change the fact that this Court lacks jurisdiction over this petition because it is a second or subsequent petition challenging the same conviction. Nor does it change the fact that even if this were Kessel's first petition, his claims would be untimely and procedurally barred. Third, Kessel objects to Judge Ostby's recommendation that a certificate of appealability be denied on the grounds that Article I, § 9, Clause 2 of the U.S Constitution prohibits the suspending of the writ of habeas corpus. But contrary to 2 Kessel's assertion, this provision does not prohibit this Court from denying his petition. After a de novo review, the Court determines the Findings and Recommendation of Magistrate Judge Ostby are well grounded in law and fact and adopts them in their entirety. Accordingly, IT IS HEREBY ORDERED as follows: (I) Kessel's petition (doc. 1) is DISMISSED for lack ofjurisdiction because it is an unauthorized second petition; (2) Kessel's motion to proceed in forma pauperis (doc. 2) is DENIED AS MOOT; and (3) a certificate of appealability is DENIED. urt is directed to enter a judgment of dismissal. DATED this ....­LL­- j CHARDF. CEBULL 'ITED STATES DISTRICT JUDGE 3