von Koenigsberg-Tyrvaldssen v. Kirkegard et al, No. 6:2016cv00038 - Document 10 (D. Mont. 2016)
Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. Petition for writ of habeas corpus 1 is DISMISSED. Certificate of Appealability is DENIED. Signed by Judge Dana L. Christensen on 12/14/2016. Mailed to Tyrvaldssen. (TAG)
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von Koenigsberg-Tyrvaldssen v. Kirkegard et al Doc. 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION CV 16-38-H-DLC-JTJ YMIR-JULE VON KOENIGSBERGTRYVALDSSEN, Petitioner, ORDER vs. LEROY KIRKEGARD, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondent. On November 16, 2016, United States Magistrate Judge John T. Johnston entered his Findings and Recommendations, recommending that Plaintiff YmirJule von Koenigsberg-Tryvaldssen's ("von Koenigsberg-Tryvaldssen") petition be dismissed as time barred. On December 1, 2016, the Court received von Koenigsberg-Tryvaldssen's objection to Judge Johnston's Findings and Recommendations, and so he is entitled to a de novo review of those findings and recommendations to which he specifically objects. 28 U.S.C. § 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). -1- Dockets.Justia.com Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted). Notwithstanding the above, "[w]here a petitioner's objections constitute perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original habeas petition, the applicable portions of the findings and recommendations will be reviewed for clear error." Roslingv. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21, 2014) (citations omitted). Having reviewed von Koenigsberg-Tryvaldssen's objection, the Court finds that he fails to articulate any specific issue with Judge Johnston's reasoning, and instead objects "IN TOTO" to the Findings and Recommendations. (Doc. 9.) Mr. von Koenigsberg-Tryvaldssen has not shown that some extraordinary circumstance stood in his way and prevented him from timely filing his habeas petition. The Court agrees with Judge Johnston that von KoenigsbergTryvaldssen has failed to prove that the one year statute of limitations period under 28 U.S.C. § 2254 should be equitably tolled. Accordingly, the Court reviews Judge Johnston's Findings and Recommendations for clear error and, finding none, -2- IT IS ORDERED that Judge Johnston's Findings and Recommendations (Doc. 8) are ADOPTED IN FULL. Ymir-Jule von Koenigsberg-Tryvaldssen's petition for writ of habeas corpus (Doc. 1) is DISMISSED as time barred. IT IS FURTHER ORDERED that the Clerk of Court shall enter by separate document a judgment of dismissal. IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED. fh DATED this _li_ day of December, 2016. Dana L. Christensen, Chief Judge United States District Court -3-
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