DaSilva v. Green et al, No. 6:2011cv00027 - Document 8 (D. Mont. 2011)

Court Description: ORDER adopting Findings and Recommendations 7 in full. Petitioner DaSilva's parole claim is DENIED on the merits and the challenge to his conviction is DISMISSED WITHOUT PREJUDICE as unexhausted. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 6/29/2011. Mailed to DaSilva. (TAG, )
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DaSilva v. Green et al Doc. 8 FILED JUN 2 9 20n PATRICK E. DUFFY. CLERK ByNoe;;;;P1JTY;-;:;:;;~CL"E'"'RK;;-,'-:;MI""SSOUlA""""'' ' '-­ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONT ANA HELENA DIVISION ROBERT A. DaSILVA, JR., ) ) ) Petitioner, ) ) vs. CV 11-27-H-DWM-RKS ORDER ) T. GREEN; ATTORNEY GENERAL OF THE STATE OF MONTANA, ) ) ) ) Respondent. -----------------------) Petitioner Robert A. DaSilva, Jr., a state prisoner proceeding pro se, filed this action for a writ of habeas corpus under 28 U.S.C. § 2254 on May 24, 2011. On June 2,2011, United States Magistrate Judge R. Keith Strong issued Findings and Recommendations and recommended that DaSilva's parole claim be denied and his challenge to his conviction be dismissed as unexhausted. The Petitioner did not timely object and so has waived the right to de novo review ofthe record. 28 U.S.c. § 636(b)(l). This Court reviews the Findings and Recommendation for clear error. McDonnell Douglas Coil'. v. Commodore Bus. -J­ Dockets.Justia.com Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Courtis left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F3d 422,427 (9th Cir. 2000). I can find no clear error with Judge Strong's Findings and Recommendation. Accordingly, IT IS HEREBY ORDERED that Judge Strong's Findings and Recommendation (dkt #7) is adopted in full. Petitioner DaSilva's parole claim is DENIED on the merits and the challenge to his conviction is DISMISSED WITHOUT PREJUDICE as unexhausted. The Clerk of Court is directed to enter by separate document a judgment in favor of Respondents and against Petitioner on the parole claim and a judgment of dismissal on Petitioner's challenge to his conviction. IT IS FURTHER ORDERED that a certificate of appealability is DENIED on both claims as neither the merits nor the procedural questions warrant further proceedings. Dated ~':ay ofJune, 2011. Donald W. M Boy, District Judge United tes istrict Court ·2·