Ellison v. Kirkegard et al
Filing
11
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Petition 1 DISMISSED without prejudice. Motions ( 8 , 9 , 10 ) DENIED as moot. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 10/31/2016. Mailed to Ellison. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
CV 16-123-BLG-DLC-CSO
LIONEL SCOTT ELLISON,
Petitioner,
ORDER
vs.
LEROY KIRKEGARD, et al.,
Respondents.
United States Magistrate Judge Carolyn S. Ostby entered her Order,
Findings and Recommendations on August 23, 2016, recommending dismissal of
Petitioner Lionel Scott Ellison's ("Ellison") application for writ of habeas corpus
under 28 U.S.C. § 2254. Ellison timely filed objections and is therefore entitled to
de novo review of those Findings and Recommendations to which he specifically
objects. 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 ifthe 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).
Notwithstanding the above, "[w]here a petitioner's objections constitute
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perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original habeas petition, the
applicable portions of the findings and recommendations will be reviewed for
clear error." Roslingv. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21,
2014) (citations omitted).
Upon review of the objections, it appears Ellison identifies two objections
with Judge Ostby's Findings and Recommendations. First, Ellison objects to
United States District Judge Susan Watters presiding over this matter. Ellison
states that Judge Watters has personal knowledge over his original criminal case
due to her previous position as a state district court judge in Montana's Thirteenth
Judicial District Court (Yellowstone County). Ellison thus moves for Judge
Watters to recuse herself from this case. However, Ellison's objection and motion
are now moot as Judge Watters is no longer assigned to this case. (See Doc. 6
(reassigning this case to the undersigned).) Thus, the Court will overrule Ellison's
objection and deny his motion as moot.
Upon review of Ellison's second objection, the Court finds that it fails to
articulate any specific issue with Judge Ostby' s reasoning, and, instead, rehashes
the claim of actual innocence raised in the petition. Judge Ostby examined this
argument and declined to address it because Ellison has not yet exhausted his state
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remedies. The Court agrees with Judge Ostby that Ellison has a direct appeal
pending with the Montana Supreme Court. See State v. Ellison, No. DA 16-0105
(Mont. filed Feb. 12, 2016). Thus, Ellison has not exhausted his state court
remedies. Accordingly, the Court reviews Judge Ostby's Findings and
Recommendations for clear error and finds no clear error in the conclusion that
Ellison's petition should be dismissed without prejudice.
Lastly, Ellison moves the Court for leave to add additional exhibits in
support of his petition. Ellison also moves for a show cause hearing to address
these exhibits and his petition. The Court has reviewed these documents and finds
that they have been lodged in support of Ellison's argument of actual innocence.
The Court will thus deny these motions as moot because they offer nothing to
detract from the Court's finding that Ellison has not exhausted his state court
remedies.
Accordingly, the Court reviews the remainder of Judge Ostby's Findings
and Recommendations for clear error and, finding none,
IT IS ORDERED that:
(1) Judge Ostby's Findings and Recommendations (Doc. 5) are ADOPTED
IN FULL.
(2) The Petition (Doc. 1) is DISMISSED without prejudice for failure to
exhaust state judicial remedies.
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(3) Petitioner Lionel Scott Ellison's Motion for Recusal (Doc. 8) is
DENIED as moot.
(4) Petitioner Lionel Scott Ellison's Motion to Add Exhibits (Doc. 9) is
DENIED as moot.
(5) Petitioner Lionel Scott Ellison's Motion for a Show Cause Hearing
(Doc. 10) is DENIED as moot.
(6) The Clerk of Court is directed to enter by separate document a judgment
of dismissal.
(7) A certificate of appealability is DENIED.
Dated this ~day of October, 2016.
Dana L. Christensen, Chief Judge
United States District Court
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