Stewart v. Richter

Filing 6

OPINION AND ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Complaint 1 DISMISSED with prejudice. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal of this decision would not be taken in good faith. Signed by Judge Susan P. Watters on 8/7/2015. Mailed to Stewart. (TAG, )

UNITED STATES DISTRICT COURT
DISTRICT OF MONTANA
BILLINGS DIVISION

CV-15-52-BLG-SPW
WALTER MITCHELL STEWART,
JR.,
Plaintiff,
OPINION AND ORDER
vs.
KLAUS P. RICHTER,
Defendant.
Plaintiff Walter Stewart was convicted by jury of involuntary manslaughter
in 2003. He was sentenced to 72 months in prison and he discharged his
supervised release on July 1, 2010. Stewart filed this action against the Assistant
United States Attorney that prosecuted that case on June 10, 2015. In his
Complaint, Stewart alleges that the former prosecutor violated the United States
Constitution in a variety of manners at trial.
United States Magistrate Judge Carolyn Ostby entered Findings and
Recommendations on July 27, 2015, in which she recommended that this Court
dismiss Stewart's Complaint for two reasons. First, Judge Ostby concluded that
the applicable three year statute of limitations had run. Second, Judge Ostby
concluded that since Stewart's conviction has not been overturned or invalidated,
1

this action is barred by the Heck doctrine. See Heck v. Humphrey, 512 U.S. 4 77
(1994). Stewart timely objected to both conclusions. Therefore, Stewart is entitled
to a de novo review. 28 U.S.C. § 636(b)(l).
After de novo review, this Court finds that Judge Ostby did not err in her
conclusions. Stewart's argument in relation to the statute of limitations is hard to
discern. Stewart apparently is pointing to alleged constitutional violations that
occurred at a probation revocation he faced in state court. Assuming those alleged
violations were committed within the past three years, the named defendant cannot
be held responsible for conduct that occurred in state court.
In regards to the Heck doctrine, Stewart argues that he "can demonstrate that
the conviction or sentence has already been invalidated." (Doc. 5 at 4). This is not
true. The Court has reviewed the docket. See United States v. Stewart, CR 02102-BLG-SPW. On July 16, 2003, Stewart was convicted after a jury trial. Id. at
Doc. 54. He received a 72 month sentence, which was affirmed by the Ninth
Circuit. Id. at Docs. 126 and 139. This Court denied Stewart's attempt to vacate
his judgment under 28 U.S.C. § 2255. Id. at Doc. 154. Stewart successfully
completed supervised release on July 1, 2010. Id. at Doc. 161. At no point did this
Court or the Ninth Circuit invalidate Stewart's conviction.
After de novo review, this Court finds that Judge Ostby did not err in her
Findings and Recommendations. Accordingly, IT IS HEREBY ORDERED:
2

1. Judge Ostby's Findings and Recommendations (Doc. 4) are ADOPTED
IN FULL.

2. Stewart's Complaint (Doc. 1) is DISMISSED with prejudice.
3. The Clerk of Court shall close this matter and enter judgment in favor of
the Defendant pursuant to Rule 58 of the Federal Rules of Civil Procedure.
4. The Clerk of Court shall have the docket reflect that the Court certifies
pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure that any
appeal of this decision would not be taken in good faith.
5. The Clerk of Court shall have the docket reflect that this dismissal counts
as a strike pursuant to 28 U.S.C. 1915(g).

DATED this £ y of August, 2015.

/

Laa=rl~~-~
Susan P. Watters
United States District Court

3