Maier v. Mahoney et al

Filing 7

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Maier's petition 4 is DISMISSED for lack of jurisdiction. Certificate of appealability DENIED. Signed by Judge Richard F. Cebull on 8/26/2011. Mailed to Maier.

FILED
BILLINGS DIY.

IN THE UNITED STATES DISTRIClO~(f)tmreS Arl11 YO
FOR THE DISTRICT OF MONTA~XCK E. DUFFY, elE <'
BY ____~-------BILLINGS DIVISION
LLOYD SCOTT MAIER,

IEPUTY CLERK

)

) Cause No. CV-11-79-BLG-RFC-CSO
Petitioner,

)
)
)
v.
)
WARDEN MIKE MAHONEY;
)
ATTORNEY GENERAL OF THE )
)
STATE OF MONTANA,
)
Respondents.
)

ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE

----------------------)

United States Magistrate Judge Carolyn Ostby has entered Findings and
Recommendation (doc. 5) with respect to Rule 4 1 pre screening Maier's 28 U.S.C.
§ 2254 petition for writ of habeas corpus. Doc. 4. Although Judge Ostby notes
that the petition would be denied on its merits because even if his juvenile felony
conviction was incorrectly counted, he still had two prior felony convictions and
persistent felony offender status only required one, she recommends the petition

lRule 4 of the Rules Governing Section 2254 Cases in the United States District Courts
require this Court to summarily dismiss § 2254 petitions without an answer if it "plainly appears
from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in
the district court."
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be dismissed for lack ofjurisdiction as an unauthorized second or successive
petition. Judge Ostby further recommends a certificate of appealability be denied.
Upon service of a magistrate judge's findings and recommendation, a party
has 14 days to file written objections. 28 U.S.C. § 636(b)(1). Maier has filed
timely objections. Doc. 6. Accordingly, the Court must make a de novo
determination of those portions of the Findings and Recommendations to which
objection is made. 28 U.S.C. § 636(b)(1).
Maier claims this third petition should not be dismissed as an unauthorized
petition because he has newly discovered evidence that a juvenile conviction was
unlawfully used to designate him as a persistent felony offender. But even if his
realization that the juvenile conviction was counted against him during his
sentencing could be considered newly discovered evidence, nothing would change
because, as noted by Judge Ostby, a persistent felony offender under Montana law
need only have one prior felony within five years, doc. 5, p. 3, and Maier admits
he had two others.
Magistrate Judge Ostby's findings and recommendations are well-grounded
in law and fact and are adopted in their entirety. Accordingly, IT IS HEREBY
ORDERED that Maier's petition (doc. 4) is DISMISSED for lack ofjurisdiction

as an unauthorized second or successive petition. A certificate of appealability is
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DENIED.

The Clerk of Court is directed to enter, by separate document, a judgment of
dismissal.

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DATED thiS& day of August, 2011.

;t

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RICHARD F. CEBULL
UNITED STATES DISTRICT JUDGE

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