Howard v. Kirkegard, No. 6:2016cv00025 - Document 4 (D. Mont. 2016)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 3 in full. Request for Extension 1 is DENIED and the matter is DISMISSED without prejudice. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 5/10/2016. Mailed to Howard. (TAG, )

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Howard v. Kirkegard Doc. 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION FILED MAY 1 0 2016 Clerk, U S District Court District Of Montana Missoula HARLEY HOWARD, CV 16-25-H-DLC-JTJ Petitioner, ORDER vs. LEROY KIRKEGARD, WARDEN; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents. United States Magistrate Judge John Johnston entered his Order, Findings and Recommendations in this matter on April 7, 2016, recommending dismissal of this case due to Petitioner Harley Howard's ("Howard") failure to file his petition for writ of habeas corpus. Howard failed to timely object to the Findings and Recommendations, and so waived his right to de novo review of the record. 28 U.S.C. ยง 636(b )(1 )(C). This Court reviews for clear error those findings and recommendations to which no party objects. See McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 149 (1985). Clear error exists ifthe Court is left with a "definite and firm conviction that a mistake has been committed." United States v. -1- Dockets.Justia.com Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted). Having reviewed the Findings and Recommendations, the Court finds no clear error in Judge Johnston's conclusion that this matter should be dismissed because Howard has failed to present a "case or controversy" pursuant to Article III, Section 2, of the United States Constitution. Accordingly, IT IS ORDERED that: (1) Judge Johnston's Findings and Recommendations (Doc. 3) are ADOPTED IN FULL. (2) Howard's Request for Extension (Doc. 1) is DENIED and the matter is DISMISSED without prejudice. (3) The Clerk of Court is directed to enter, by separate document, a judgment of dismissal. (4) A certificate of appealability is DENIED. Dated this l of May, 2016. Dana L. Christensen, Chief Judge United States District Court -2-

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