Griffin v. Commander Smith et al, No. 9:2014cv00256 - Document 5 (D. Mont. 2014)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Griffin's petition is DISMISSED WITHOUT PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 11/25/2014. Mailed to Griffin. (TAG, )

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Griffin v. Commander Smith et al Doc. 5 FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION NOV 2 5 2014 Clerk, u.s. District Court District Of Montana Missoula CV 14-256-M-DLC ROBERT H. GRIFFIN, Petitioner, ORDER vs. COMMANDER SMITH, WARDEN; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents. United States Magistrate Judge Jeremiah C. Lynch entered his findings and recommendations on October 23, 2014, recommending that Petitioner Griffin's action pursuant to 28 U.S.C. § 2254 be dismissed without prejudice for failure to exhaust state judicial remedies. Griffin failed to timely object to the findings and recommendations, and so waived the right to de novo review of the record. 28 U.S.C. § 636(b)(1). The Court will therefore review the record for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). The Court adopts Judge Lynch's findings and recommendations in full. Griffin, who is detained pending trial in state court, filed this habeas petition -1 Dockets.Justia.com challenging both the factual basis of his detention and the course of proceedings in his case thus far. Petitioner must exhaust his state judicial remedies before he brings his habeas action in federal court. Rose v. Lundy, 455 U.S. 509, 520 (1981); Slack v. McDaniel, 529 U.S. 473, 485-486 (2000). As reasonable jurists would not disagree that Griffin has failed to exhaust his state remedies, a certificate of appealability is inappropriate in this case. Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012). IT IS ORDERED that Judge Lynch's findings and recommendations (Doc. 4) are ADOPTED IN FULL. Griffin's petition is DISMISSED WITHOUT PREJUDICE. A certificate of appealability is DENIED. IT IS FURTHER ORDERED that the Clerk of Court enter, by separate document, a judgment of DISMISSAL, and CLOSE this case . DATED this .¥h 2'!7 day ofNovemberrO 14. Jm(.~ Dana L. Christensen, Chief Judge United States District Court -2

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