Larson v. Mahoney, No. 6:2008cv00025 - Document 10 (D. Mont. 2008)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 9 in full. The Petition is DISMISSED as time and procedurally barred. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 12/11/2008. Copy mailed to Larson. (TAG, )
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Larson v. Mahoney Doc. 10 FILED DEC 1 1 2008 PATRICK E. DUFFY, CLERK BY DEPUTY CLERK, MlSSOUlA IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION JAMES L. LARSON, Petitioner, vs. 1 1 1 1 1 1 MIKE MAHONEY, Warden, ORDER ) Respondent. CV 08-25-H-DWM-RKS 1 1 Petitioner Larson, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. 2254. § Larson, who was convicted after pleading guilty to theft and burglary, claims that he is not guilty of those offenses because he was insane or otherwise not in control of his actions at the time. United States Magistrate Judge Keith Strong conducted preliminary screening of the Petition as required by Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts. Under Rule 4, the Petition must be summarily dismissed "[ilf it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the District Court." If summary dismissal is not warranted, the judge must order the respondent to file an answer, motion, or other response or to take some other action as ordered by the judge. Judge Strong noted that the Petition appears to be timebarred and procedurally barred, and ordered Petitioner Larson to show cause why the Petition should not be dismissed on those grounds. Petitioner failed to respond to the Order, and Judge Strong issued Findings and Recommendations in which he concludes that the Petition should be dismissed as time-barred and procedurally barred. Judge Strong 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. § 636(b) (1). This Court will review the Findings and Recommendations for clear error. McDonnell Douqlas Corp. v. Commodore Bus. Mach., Inc., 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 as time-barred and procedurally barred, and a c e r t i f i c a t e of a p p e a l a b i l i t y i s D E N I E D . DATED t h i s u % a y of December, 2 0 0 8 . , D i s t r i c t Judge t r i c t Court