Treiner v. Mahoney et al, No. 6:2007cv00040 - Document 9 (D. Mont. 2008)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. The petition is DISMISSED WITH PREJUDICE for failure to file within the one-year statute of limitations, and a certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 9/4/2008. Copy mailed to Treiner. (ASG, )
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Treiner v. Mahoney et al Doc. 9 SEP 0 4 2008 PATRICK E. M Y , L. L t,x b C€fUlY CLERK. H 8 9 c 18~ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION 1 1 1 1 MARK JAMES TREINER, Petitioner, vs. ) MIKE MAHONEY; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents. CV 07-40-H-DWM-RKS ORDER ) ) 1 1 ) Petitioner Treiner seeks a writ of habeas corpus under 28 U.S.C. 5 2254. United States Magistrate Judge Keith Strong issued an Order on April 8, 2008 instructing Petitioner to show cause why the Petition should not be dismissed for failure to file within the one-year statute of limitations. In his response, Petitioner states that he filed late because he was unaware of an amendment to his state court judgment on June 22, 2004. Judge Strong issued Findings and Recommendations in which he recommends dismissal of the Petition without prejudice as timebarred. Judge Strong explained that Petitioner's alleged lack of notice of the June 22, 2004 amendment to his state court judgment -1Dockets.Justia.com does not explain his failure to timely file his Petition because such a lack of notice should have caused Petitioner to believe that the deadline for filing was earlier, not later. Judge Strong concludes that the Petitioner has not shown an extraordinary circumstance that warrants equitable tolling of the limitations period. He also recommends denial of a certificate of appealability. Petitioner did not timely object and so has waived the right to de novo review of the record. 28 U.S.C. 5 636(b)(l). This Court will review the Findings and Recommendation for clear error. f , 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." (9th Cir. 2000). United States v. Svrax, 235 F.3d 422, 427 I can find no clear error with Judge Strong's Findings and Recommendations and therefore adopt them in full. Accordingly, IT IS HEREBY ORDERED that the Petition is DISMISSED WITH PREJUDICE for failure to file within the one-year statute of limitations, and a certificate of appealability is DENIED. yad DATED this '& of September, 2008. , ' Molloy, District Judge ~ongl-cYd. States District Court ~nidd /