Huffine v. Kirkegard et al

Filing 33

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 19 in full. Huffine's petition for writ of habeas corpus 1 is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Huffine's motion for copies of his file 26 is DENIED AS MOOT. Signed by Judge Dana L. Christensen on 4/23/2015. Mailed to Huffine. (TAG, )

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION

APR 2 3 2015
Clerk, l:J.S. District Court
District Of Montana
Missoula

CV 15-02-BU-DLC-JTJ

ELDON HUFFINE,
Petitioner,

ORDER
vs.
LEROY KIRKEGARD, et al.,
Respondents.
United States Magistrate Judge John T. Johnston entered his findings and
recommendations on February 18, 2015, recommending dismissal of Petitioner
Huffine's petition under 28 U.S.C. § 2254 for writ of habeas corpus. Huffine
timely objected to the findings and recommendation on March 2, 2015, and so is
entitled to de novo review of the record. 28 U.S.C. § 636(b)(l). The portions of
the findings and recommendation not specifically objected to will be reviewed for
clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981). "Where a petitioner's objections constitute
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

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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). For the reasons listed below, the Court adopts Judge
Johnston's findings and recommendation in full.
Judge Johnston recommended dismissing Huffine's habeas petition as timebarred, citing the one-year limitations period for filing a petition challenging state
custody contained in 28 U.S.C. § 2244(d)(l). Judge Johnston found, pursuant to
28 U.S.C. § 2244( d)(l )(A), that the one-year period should run from ninety days
following the Montana Supreme Court's affirmance ofHuffine's state court
sentence on a felony violation of a protective order conviction, or June 29, 2010.
The limitations period thus ran on June 29, 2011, and Huffine untimely filed his
habeas petition on December 17, 2014. Judge Johnston further found, having
reviewed Huffine's responses to his January 12, 2015 show cause order, that none
of the other yardsticks for measuring the limitations period enumerated in 28
U.S.C. § 2244(d)(l)(B)-(D) apply in this case. Finally, Judge Johnston found that
neither statutory tolling, pursuant to 28 U.S.C. § 2244( d)(2), nor equitable tolling,
nor a colorable argument of actual innocence, relieve Huffine of the limitations
period.
Upon de novo review of the record, and in full consideration ofHuffine's
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voluminous, rambling, repetitive, and conclusory objections, the Court agrees with
Judge Johnston's analysis and adopts his findings and recommendations in full.
Nothing in Huffine's objections or the approximately 150 pages of supplements
and notices he has filed since Judge Johnston issued his findings and
recommendations relieves Huffine of the limitations period.
Furthermore, given Huffine's failure to make a substantial showing of
deprivation of a constitutional right and his clear lack of entitlement to relief from
the statutory limitations period, no reasonable jurist could conclude either that this
action should proceed on the merits or that it is not time-barred. Therefore, a
certificate of appealability is not warranted.
Accordingly, IT IS ORDERED that Judge Johnston's findings and
recommendations (Doc. 19) are ADOPTED IN FULL. Huffine's petition for writ
of habeas corpus (Doc. 1) is DISMISSED WITH PREJUDICE. The Clerk of
Court shall enter by separate document a judgment in favor of Respondents and
against Petitioner Huffine.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Huffine's motion for copies of his file
(Doc. 26) is DENIED AS MOOT, given the Court's order as to his habeas
petition.
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DATED this

~ay of April, 2015.

Dana L. Christensen, Chief Judge
United States District Court

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