Doyle v. Frink et al

Filing 6

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. The Petition is DISMISSED as an unauthorized successive petition. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 9/30/2013. Mailed to Doyle. (TAG, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BUTTE DIVISION

KEITH EUGENE DOYLE,

CV 13-60-BU-DWM-JCL

Petitioner,
vs.

ORDER

MARTIN FRINK, Warden and
ATTORNEY GENERAL OF THE
STATE OF MONTANA,
Respondents.

This action was filed in the United States District Court for the District of
Montana, Butte Division on August 5,2013. Petitioner Keith Eugene Doyle seeks
a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) United States
Magistrate Judge Jeremiah C. Lynch filed Findings and a Recommendation
regarding Mr. Doyle's Motion for Leave to Proceed in forma pauperis and
Complaint on August 7,2013. (Doc. 4.) Pursuant to 28 U.S.C. § 636(b)(1)~
objections to the Findings and Recommendation entered by Judge Lynch were due
August 26,2013. Mr. Doyle submitted his Objections on August 26,2013. (Doc.
5.) While his Objections were not filed with the Court until August 28,2013, Mr.
Doyle's submission of his documents on the day of the deadline is sufficient. See
Faile v. Upjohn Co., 988 F.2d 985,988 (9th Cir. 1993) (noting that "filing" occurs

when an incarcerated person's document is delivered to prison authorities).
Judge Lynch granted Mr. Ingram's Motion for Leave to Proceed informa

pauperis and recommended his Petition be dismissed as an unauthorized
successive petition. Mr. Doyle objects to the recommendation that his Petition be
dismissed. When a party objects to any portion of the Findings and
Recommendation issued by a Magistrate Judge, the district court must make ade

novo determination regarding that portion of the Magistrate Judge's report. 28
U.S.C. § 636(b)(l)(B); McDonnell Douglas Corp. v. Commodore Bus. Mach. Inc.,
656 F.2d 1309,1313 (9th Cir.1981). None of Mr. Doyle's objections rejoin the
jurisdictional analysis Judge Lynch related in findings supporting his
recommendation that the Petition be dismissed. Even so, after de novo review of
Judge Lynch's Findings and Recommendation and Mr. Doyle's Objections to the
same, I agree with Judge Lynch's conclusion that Mr. Doyle's Complaint must be
dismissed with prejudice. This is Mr. Doyle's third petition challenging the
validity of his 2005 conviction. Without authorization to file granted by the Court
of Appeals, this Court lacks jurisdiction to entertain a second or successive
petition brought under 28 U.S.C. § 2254. Burton v. Stewart, 549 U.S. 147, 149
(2007) (per curiam).
Based on the foregoing, IT IS ORDERED that Judge Lynch's Findings and
Recommendation, (doc. 4), are ADOPTED IN FULL. Mr. Doyle's Petition is

DISMISSED as an unauthorized successive petition.
IT IS FURTHER ORDERED a certificate of appealability is DE.NIED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by a
separate document judgment of dismissal and shall close this case.
DATED thisM"day of September, 2013.

Donald W.,t1o oy, District Judge
United St~es D trict Court
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