Faulkner v. Montana Department of Corrections, No. 9:2015cv00105 - Document 12 (D. Mont. 2016)
Court Description: ORDER DISMISSING CASE; adopting Findings and Recommendations re 9 Findings and Recommendations. Signed by Chief Judge Dana L. Christensen on 3/3/2016. (DLE) Modified on 3/3/2016: mailed to Faulkner (TAG, ).
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Faulkner v. Montana Department of Corrections Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION DANNY FAULKNER, CV 15–105–M–DLC-JCL Petitioner, ORDER vs. LEROY KIRKEGARD, et al., Respondents. United States Magistrate Judge Jeremiah C. Lynch entered his Findings and Recommendations on January 25, 2016, recommending dismissal of Petitioner Danny Faulkner’s (“Faulkner”) claims. Faulkner 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. § 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 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). Having reviewed the Findings and Recommendations, the Court finds no clear error in Judge Lynch’s conclusion that Claims 2 and 3 of Faulkner’s Petition -1- Dockets.Justia.com must be dismissed as time-barred and procedurally defaulted. The Court further agrees that Claim 1 of the Petition fails to establish a constitutional violation because it impermissibly requests that this Court reexamine the Montana Supreme Court’s interpretation of Montana law. There being no clear error in Judge Lynch’s Findings and Recommendations, IT IS ORDERED that: (1) Judge Lynch’s Findings and Recommendations (Doc. 9) are ADOPTED IN FULL. (2) Claim 1 is DISMISSED for failure to establish a constitutional violation. (3) Claims 2 and 3 are DISMISSED as time-barred and procedurally defaulted. (4) The Clerk of Court is directed to enter, by separate document, a judgment of dismissal. (5) A certificate of appealability is DENIED Dated this 3rd day of March, 2016. -2-
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