Bingham v. People of the State of Montana et al
Filing
6
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. The Petition is DISMISSED for lack of jurisdiction, and a certificate of appealability is denied. Signed by Judge Richard F. Cebull on 6/21/2011. Mailed to Bingham. (TAG, )
FI:.. EC
IN THE UNITED STATES DISTRICT couRT::
4fl11 U'';: :. .......
qit'J?1
il' ••
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
MICHAEL WAYNE BINGHAM, )
)
Petitioner,
)
)
VS.
)
)
)
PEOPLE OF THE STATE OF
)
MONTANA; ATTORNEY
)
GENERAL OF THE STATE
)
OF MONTANA,
)
)
Respondent.
)
.: ."
Pr.! 2
'is
5Y _ __
CV-1l-22-BU-RFC
ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE
--------------------)
On May 18, 2011, United States Magistrate Judge Carolyn Ostby entered
Findings and Recommendation. Magistrate Judge Ostby recommends this Court
dismiss the petition for lack ofjurisdiction.
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). Petitioner has filed
objections. Doc. 5. Accordingly, the Court must make a de novo determination
ofthose portions of the Findings and Recommendations to which objection is
1
made. 28 U.S.C. § 636(b)(1). For the following reasons, Bingham's objections
are overruled.
Bingham complains of a conviction he incurred in Montana's Eighteenth
Judicial District Court, Gallatin County, in 1994. Pet. (doc. 1) at 2 ~~ 1-2. His
sentences have expired. Order at 1 para. 2, State v. Bingham, No. DA 10-0583
(Mont. Apr. 12,2011). As a result, though he is currently held in custody in
Colorado, Pet. at 1, he is not in custody "by reason of' the conviction he now
seeks to challenge, Spencer v. Kemna, 523 U.S. 1,7 (1998).
"[O]nce the sentence imposed for a conviction has completely expired," the
mere continued existence of a conviction is not enough to show the petitioner is
"'in custody' for the purposes of a habeas attack." Maleng v. Cook, 490 U.S. 488,
492 (1989) (per curiam). In extraordinary circumstances, exceptions may apply,
Resendiz v. Kovensky, 416 F.3d 952, 959-60 (9th Cir. 2005), but these exceptions
are not applicable here. Bingham was represented by counsel, Order at 1 para. 1,
Bingham, No. DA 10-0583, and the usual procedures of appeal and collateral
attack were available to him to present the frivolous grounds he now alleges, e.g.,
Mont. Code Ann. §§ 46-20-101(2), -21-102(I)(a) (1993). The petition should be
dismissed for lack of subject-matter jurisdiction. 28 U.S.C. § 2254(a).
2
After a de novo review, the Court determines the Findings and
Recommendation of Magistrate Judge Ostby are well grounded in law and fact and
HEREBY ORDERS they be adopted in their entirety.
A certificate of appealability is not warranted. Bingham's petition has no
merit at all and so makes no "substantial showing ofthe denial of a constitutional
right." 28 U.S.C. § 2253(c )(2). In addition, under the rule of Maleng v. Cook,
there is no doubt that he is no longer "in custody." Lambright v. Stewart, 220 F 3d
1022, 1026 (9th Cir. 2000)(quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). There is no reason to encourage further proceedings. Miller-El v,
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484).
Accordingly, IT IS HEREBY ORDERED that the Petition is DISMISSED
for lack ofjurisdiction. The Clerk of Court is directed to enter by separate
document a judgment of dismissal. A certificate of appealability is denied as the
petition is frivolous.
The Clerk of Court shall notifY the parties ofthe making of this Order and
close this case accordingr
DATED this
A
day of June, 2011.
CHARD F. EBULL
UNITED STATES DISTRICT JUDGE
3
/
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?