Maloney v. Kirkegard et al
Filing
10
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. the Petition for Writ of Habeas Corpus 1 , 5 is DISMISSED for lack of exhaustion. A certificate of appealability is DENIED. The Motion for Release 7 is DENIED. Signed by Judge Donald W. Molloy on 11/6/2014. Mailed to Maloney. (TAG, )
FILED
NOV 06 201'1
Clerk, u.s District Court
District Of Montana
Missoula
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
RYAN P. MALONEY,
CV 14-56-BU-DWM-JCL
Petitioner,
ORDER
vs.
LEROY KIRKEGARD and ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
Ryan P. Maloney is a state prisoner proceeding pro se. He petitions this
Court for a writ of habeas corpus under 28 U.S.C. § 2254. Magistrate Judge
Jeremiah Lynch recommends dismissing the petition for lack of exhaustion in state
court. (Doc. 6.)
Maloney timely filed written objections to Judge Lynch's Findings and
Recommendation. (Doc. 8.) On dispositive motions, the parties are entitled to de
novo review of the specified findings or recommendations to which they object.
1
28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,
656F.2d 1309, 1313 (9thCir. 1981).
Judge Lynch determined that Maloney had not yet properly exhausted in
state court all the claims raised in his petition. In his objections, Maloney does not
provide evidence that he has properly exhausted his claims in state court; instead,
he states that he "feels that going back to the same court that Pronounced this
Sentence is a waste of Time and energy." (Doc. 8 at 1.) This argument is without
merit where a state prisoner must first exhaust in the state courts, in the manner
prescribed by state law, all the claims he intends to make in federal court. Rose v.
Lundy, 455 U.S. 509, 520 (1982); see also Pet. Instruction No.5. Maloney was
sentenced on July 17,2014, and has not yet exhausted his claims in state court.
(See Pet., Doc. 5 at 2-4.)
Accordingly, IT IS ORDERED that the Findings and Recommendation
(Doc. 6) is ADOPTED IN FULL. Ryan P. Maloney'S Petition for Writ of Habeas
Corpus (Docs. 1, 5) is DISMISSED for lack of exhaustion.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter by
separate document a judgment of dismissal.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Ryan P. Maloney's Motion for Release
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(Doc. 7) is DENIED as moot.
Dated this
~ay of November, 2014.
y, District Judge
trict Court
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