Swan v. Mahoney et al, No. 9:2007cv00016 - Document 8 (D. Mont. 2008)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 in full. Swan's petition is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 9/4/2008. Copy mailed to Swan. (TAG, )
Download PDF
Swan v. Mahoney et al Doc. 8 FILED SEP 0 4 2026 PATRICK E. DWFY. LLERK B DEPUTY CLERK. MlSSOVLA Y IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION MARTIN REED SWAN, ) Petitioner, CV 07-16-M-DWM-JCL 1 1 ) 1 VS. MIKE MAHONEY: ATTORNEY GENERAL OF THE STATE OF MONTANA, ORDER ) ) ) 1 Respondent. ) Petitioner Martin Swan seeks a writ of habeas corpus under 28 U.S.C. 5 2254. United States Magistrate Judge Jeremiah C. Lynch issued an Order on October 3, 2007 instructing Petitioner to show cause why the Petition should not be dismissed for failure to file within the one-year statute of limitations. In his response, Petitioner states that he received inaccurate legal advice regarding the statute of limitations. Judge Lynch issued Findings and Recommendations in which he Dockets.Justia.com recommends dismissal of the Petition without prejudice as timebarred. Judge Lynch explained that reliance upon inaccurate legal advice does not constitute an extraordinary circumstance that warrants equitable tolling of the limitations period. He also 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. 5 636(b)(1). This Court will review the Findings and Recommendation 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 Lynch's Findings and Recommendations and therefore adopt them in full. Accordingly, IT IS HEREBY ORDERED that the Petition is DISMISSED WITH PREJUDICE for failure to file within the one-year statute of limitations, and a certificate of appealability is y, District Judge istrict Court /' I