Adams v. Fox et al, No. 9:2016cv00144 - Document 10 (D. Mont. 2017)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Petition for writ of habeas corpus 1 is DENIED. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 1/12/2017. Mailed to Adams. (TAG)

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Adams v. Fox et al Doc. 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION FILED JAN 12 2017 l:J.S. District Court 1stnct_Of Montana Missoula LARRY DEWAYNE ADAMS CV 16-144-M-DLC-JCL Petitioner, ORDER vs. TIMOTHY FOX, DOUGLAS FENDER, Respondents. United States Magistrate Judge Jeremiah C. Lynch entered Findings and Recommendations in this case on November 21, 2016, recommending that Plaintiff Larry Dewayne Adams' ("Adams") petition under 28 U.S.C. § 2254 for writ of habeas corpus be denied for lack of jurisdiction. Adams timely filed an objection to the findings and recommendations, and so is entitled to de novo review of those findings and recommendations to which he specifically objects. 28 U.S.C. § 636(b)(l)(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 ifthe Court is left with a -1- "definite and firm conviction that a mistake has been committed." United States v. Syra:x:, 235 F .3d 422, 427 (9th Cir. 2000) (citations omitted). Having reviewed Adams' objections, the Court finds that Adams claims his constitutional rights have been violated, but does so in a second or successive petition. Adams previously filed habeas petitions before this Court in 2010 and 2013. However, he argues that because he has presented a showing of actual innocence and because his arguments rest on new law, his second or successive petition is warranted. Adams cites to Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), to support his argument that the United States Supreme Court has found for ineffective assistance of counsel in federal habeas petitions such as his, and that these cases are "new law" according to 28 U.S.C. § 2244(b)(2). Under 28 U.S.C. § 2244(b)(2), a new claim in a second or successive petition must be dismissed even if not presented in a prior habeas petition, unless the claim rests on new law, new evidence, or a petitioner's actual innocence. However, "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3). Thus, even ifthe cases cited by Adams support the narrow -2- exception to the second or successive habeas petition bar, a prisoner wishing to file a successive habeas petition in federal district court must first receive authorization from the Court of Appeals. Therefore, this Court does not have jurisdiction until Adams appropriately appeals to the Ninth Circuit Court of Appeals. Finally, the Court agrees with Judge Lynch's determination that there is no doubt this Court lacks jurisdiction and thus a certificate of appealability is not warranted. IT IS ORDERED that Judge Lynch's Findings and Recommendations (Doc. 5) are ADOPTED IN FULL. Adams's petition for writ of habeas corpus (Doc. 1) is DENIED 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 ofappealability is DENIED. DATED this 12 of January, 2 Dana L. Christensen, Chief Judge United States District Court -3-

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