Doyle v. Fender et al

Filing 10

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 11/29/2017. Mailed to Doyle. (TAG)

FILED
KJV 2 9 2017
IN THE UNITED STATES DISTRICT COURTc1er1<, u.sOf Montana
District Court
District
FOR THE DISTRICT OF MONTANA
Missoula
BUTTE DIVISION·

KEITH DOYLE,

CV 17-68-BU-DLC-JCL

Petitioner,
ORDER
vs.
DOUGLAS FENDER; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
United States Magistrate Judge Jeremiah C. Lynch entered Findings and
Recommendations in this case on September 13, 201 7, recommending that
Plaintiff Keith Doyle's ("Doyle") petition under 28 U.S.C. § 2254 for writ of
habeas corpus be denied for lack of jurisdiction. Doyle timely filed an objection
to the findings and recommendations, and so is entitled to de novo review of those
findings and recommendations to which he specifically objects. 28 U.S.C.
§ 636(b )(1 )(C). This Court reviews for clear error those findings and
recommendations to which no party objects. See McDonnell Douglas Corp. v.

Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v.
Arn, 474 U.S. 140, 149 (1985). Clear error exists ifthe Court is left with a
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"definite and firm conviction that a mistake has been committed." United States v.

Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).
Having reviewed Doyle's objections, the Court finds that Doyle's claims
challenging 2005 conviction are second or successive petition. This is Doyle's
fourth petition before this Court. Doyle's first petition in 2010 was denied on the
merits. See Doyle v. O'Fallon, No. CV 09-58-BU-RFC-CSO, Docs. 20, 21 (D.
Mont. Mar. 16, 2010). Doyle's second petition was dismissed in its entirety as an
unauthorized second petition. Doyle v. State, No. CV 12-39-BU-DLC, Doc. 8 (D.
Mont. Oct. 16, 2012). Doyle's third petition also challenged the validity of his
2005 conviction, and was dismissed as an unauthorized successive petition. See

Doyle v. Frink, No. CV-13-60-DWM-JCL, Doc. 4 at 3 (D. Mont. Aug. 7, 2013).
Doyle has been advised that without leave from the Ninth Circuit Court of
Appeals to file a successive habeas petition, this Court has no jurisdiction to hear
his claims.
In Doyle's objection, he argues that because he has presented new evidence
and a showing of actual innocence, his second or successive petition is warranted.
Doyle asserts that under 28 U.S.C. § 2244(b )(2), he has brought new evidence to
warranting a successive petition as the issue in the present petition is "entirely
different" because he has "discovered evidence that the process utilized by the
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State in initiating Information as the constitutionally sound method of prosecuting
[his] case was unconstitutional." (Doc. 9 at 17.) Further, Doyle argues that he
presented a showing of actual innocence. (Doc. 9 at 4.)
Under 28 U.S.C. § 2244(b)(2), a new claim in a second or successive
petition must be dismissed, unless the claim rests on new law, new evidence, or a
petitioner's actual innocence. However, "[b]efore a second or successive
application permitted by this section is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order authorizing the district court
to consider the application." 28 U.S.C. § 2244(b)(3). Thus, even if circumstances
support Doyle's assertion that his claim qualifies within the narrow exception to
the second or successive habeas petition bar, a prisoner wishing to file a
successive habeas petition in federal district court must first receive authorization
from the Court of Appeals. Therefore, this Court does not have jurisdiction until
Doyle appropriately appeals to the Ninth Circuit Court of Appeals.
Finally, the Court agrees with Judge Lynch's determination that there is no
doubt this Court lacks jurisdiction and thus a certificate of appealability is not
warranted.
IT IS ORDERED that Judge Lynch's Findings and Recommendations
(Doc. 5) are ADOPTED IN FULL. Doyle's petition for writ of habeas corpus
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(Doc. 1) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by separate
document a judgment of DISMISSAL.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
DATED this

2.'t~day of November, 2017.

Dana L. Christensen, Chief Judge
United States District Court

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