Kessel v. Dooley et al
Filing
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Kessel's petition 1 is DISMISSED for lack ofjurisdiction, his motion to proceed in forma pauperis 2 is DENIED AS MOOT, and a certificate of appealability is DENIED. Signed by Judge Richard F. Cebull on 8/8/2011. Mailed to Kessel. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
)
)
Petitioner,
)
)
v.
) ORDER ADOPTING FINDINGS
) AND RECOMMENDATIONS OF
ROBERT DOOLEY; ATTORNEY)
U.S. MAGISTRATE JUDGE
GENERAL OF THE STATE OF )
MONTANA,
)
)
Respondents.
)
JOHN KESSEL,
----------------------)
United States Magistrate Judge Carolyn Ostby has entered Findings and
Recommendation (doc. 4) with respect to Kessel's 28 U.S.c, § 2254 petition for
writ of habeas corpus. Doc. 1. Judge Ostby recommends the petition be dismissed
for lack ofjurisdiction as a second petition challenging the same conviction.
Judge Ostby further recommends Kessel's motion for leave to proceed in forma
pauperis be denied as moot.
Upon service of a magistrate judge's tlndings and recommendation, a party
has 14 days to file written objections. 28 U.S.C. § 636(b)(1). Kessel has filed
timely objections. Doc. 5. Accordingly, the Court must make a de novo
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determination ofthose portions of the Findings and Recommendations to which
objection is made. 28 U.S.C. § 636(b)(1). For the following reasons, Kessel's
objections are overruled.
Kessel's first objection is that Judge Ostby erred in concluding that he
misrepresented the amount of money in his prison trust account. Kessel, however,
admits in his objection that he did not claim the "meager" amount of money
because he does not receive W-2's or 1099 forms on this income and is not
required to pay income tax on it. In any event, Judge Ostby also concluded the
motion to proceed in forma pauperis was moot because Kessel's petition must be
dismissed for lack ofjurisdiction.
Second, Kessel objects to the denial of his petition on the grounds that he
wrote the Clerk of Court for a sentence modification form and they sent him the §
2254 form. Regardless, this does not change the fact that this Court lacks
jurisdiction over this petition because it is a second or subsequent petition
challenging the same conviction. Nor does it change the fact that even if this were
Kessel's first petition, his claims would be untimely and procedurally barred.
Third, Kessel objects to Judge Ostby's recommendation that a certificate of
appealability be denied on the grounds that Article I, § 9, Clause 2 of the U.S
Constitution prohibits the suspending of the writ of habeas corpus. But contrary to
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Kessel's assertion, this provision does not prohibit this Court from denying his
petition.
After a de novo review, the Court determines the Findings and
Recommendation of Magistrate Judge Ostby are well grounded in law and fact and
adopts them in their entirety.
Accordingly, IT IS HEREBY ORDERED as follows:
(I) Kessel's petition (doc. 1) is DISMISSED for lack ofjurisdiction
because it is an unauthorized second petition;
(2) Kessel's motion to proceed in forma pauperis (doc. 2) is DENIED AS
MOOT; and
(3) a certificate of appealability is DENIED.
urt is directed to enter a judgment of dismissal.
DATED this ....-LL-
j
CHARDF. CEBULL
'ITED STATES DISTRICT JUDGE
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