Cowan v. State of Montana et al, No. 9:2011cv00037 - Document 6 (D. Mont. 2011)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 3 in full. Petition 1 is DISMISSED WITHOUT Prejudice, and a certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 4/1/2011. Mailed to Cowan. (TAG, )
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Cowan v. State of Montana et al Doc. 6 FILED APR 0 1 2011 PATRICK E, DUFFY. CLERK By"'DE""PUTY-='-;;QEO-=RK;;","'MI""SSOUlA=:-:C-:­ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION SHAWN RYAN COWAN, ) ) ) Petitioner, ) ) ) VS. ATTORNEY GENERAL STEVE BULLOCK, CV 11-37-M-DWM-JCL ORDER ) ) ) ) Respondent -----------------------) Petitioner Shawn Ryan Cowan, a state prisoner proceeding pro se, filed this action for a writ of habeas corpus under 28 U.S.C. § 2254. On March 2,2011, United States Magistrate Judge Jeremiah Lynch issued Findings and Recommendations and recommended that this action be dismissed without prejudice for failure to exhaust state remedies. The Petitioner did not timely object and so has waived the right to de novo -J­ review ofthe record. 28 U.s.C. § 636(b)( 1). This Court reviews the Findings and Recommendation for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach.. Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists ifthe Court is left with a "definite and finn conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). I can find no clear error with Judge Lynch's Findings and Recommendation. Accordingly, IT IS HEREBY ORDERED that Judge Lynch's Findings and Recommendation (dkt #3) is adopted in full and the Petition (dkt # 1) is DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies. The Clerk of Court is directed to enter by separate document a judgment of dismissal. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Dated this l~y of April, 2011. lloy, District Judge United S tes istrict Court -2­