Dunsmore v. Mahoney et al, No. 6:2008cv00071 - Document 7 (D. Mont. 2008)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Dunsmore's Petition is DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies. A certificate of appealabiliy is DENIED. Signed by Judge Donald W. Molloy on 11/17/2008. Copy mailed to Dunsmore. (TAG, )
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Dunsmore v. Mahoney et al Doc. 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION MICHAEL P. DUNSMORE, CV 08-71-H-DWM-RKS 1 Petitioner, vs. ORDER 1 MIKE MAHONEY; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents. ) 1 Petitioner Dunsmore has filed a Petition for Writ of Habeas Corpus challenging a decision of the Montana Board of Pardons and Parole. Most of the issues Petitioner raises are also pending in a petition before the Montana Supreme Court. Petitioner raises one issue that he has apparently not previously presented in any court. 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 recommends that the Petition be dismissed without prejudice due to Petitioner's failure to present all of his claims in state court before filing in federal court, as required by Rose v. Landrv, 455 U.S. 509, 520 (1982). Judge Strong also recommends that a certificate of appealability be denied. Petitioner did not timely object and so has waived the right to de novo review of the record. 28 U.S.C. ยง 636(b)(l). This Court will review the Findings and Recommendation for clear error. McDonnell Douslas 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 WITHOUT PREJUDICE for failure to exhaust state remedies, and a certificate of appealability is DENIED. -2- The C l e r k of C o u r t i s d i r e c t e d t o e n t e r a judgment o f d i s m i s s a l , a l l p e n d i n g m o t i o n s a r e DENIED a s moot. DATED t h i s l/' fi d a y o f Nov and