Ulrich v. Berkebile et al

Filing 6

ORDER DENYING PETITION AND DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Susan P. Watters on 3/4/2015. Mailed to Ulrich with copy of Order as directed. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
DALEE. ULRICH,
Petitioner,
ORDER DENYING PETITION AND
DENYING CERTIFICATE OF
APPEALABILITY

vs.
DAVID BERKEBILE, et al.,
Respondents.

This case comes before the Court on Petitioner Dale Ulrich's application for
writ of habeas corpus under 28 U.S.C. § 2254. Ulrich is a state prisoner proceeding
prose. He challenges a conviction for felony incest entered in Dawson County,
Montana. Pet. (Doc. 1) at 1, 2. Although the case was referred on opening to a
United States Magistrate Judge, see D. Mont. L.R. 72.2(a)(l), it is clear the
proceedings need not be protracted. Referral is terminated. See L.R. 72.2( c).
Ulrich was convicted and sentenced in Dawson County on December 12,
2011, for felony incest. See Pet. at 3. The judge who reviewed the prosecutor's
motion for leave to file an Information and found probable cause to support the
charge was the same judge who accepted Ulrich's guilty plea and sentenced him.
Ulrich claims this was unconstitutional because it created the fact and appearance
of bias. Ulrich also claims that his counsel was ineffective in failing to identify and
address the issue in the proceedings that led to Ulrich's current custody. He claims
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his rights under the United States Constitution and the Montana Constitution were
violated. See generally Pet. at 3-15; see also Mont. Code Ann. §§ 46-11-101, -201.
Ulrich's petition is based on a specious theory that has gained credence
among jailhouse lawyers and inmates in Montana's prisons. This Court has
independently reviewed Ulrich's allegations and the controlling law. It has
determined that Chief Judge Christensen's Order of January 21, 2015, in Ayers v.

Kirkegard, Cause No. CV 14-110-BLG, and Ayers v. Berkebile, Cause No. CV 14164-BLG (D. Mont. Jan. 21, 2015), is correct.
For the reasons set forth in Judge Christensen's Order, Ulrich's petition is
denied as frivolous. All claims are conclusively lacking in merit. Rule 4, Rules
Governing § 2254 Cases.
Ulrich does not make any showing that he was deprived of a constitutional
right. A certificate of appealability is not warranted. 28 U.S.C. § 2253( c)(2).

Based on the foregoing, the Court enters the following:

ORDER
1. The Clerk of Court shall attach to this Order a copy of Judge
Christensen's Order (Doc. 6) in Ayers v. Kirkegard, No. CV 14-110-BLG-DLC (D.
Mont. filed Jan. 21, 2015).
2. For the reasons set forth in Judge Christensen's Order, Ulrich's Petition
(Doc. 1) is DENIED for lack of merit.
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3. The Clerk of Court is directed to enter judgment, by separate document,
against Ulrich and in favor of Respondents.
4. A certificate of appealability is DENIED on all issues.
5. This case is CLOSED. Other than a notice of appeal, no further filings
will be accepted.

. <fl--

DATED this _f_ day of March, 2015.

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Susan P. Watters
United States District Court

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