Wallace v. State of Montana

Filing 15

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 in full. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 1/25/2018. Mailed to Wallace (TAG)

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

FILED
JAN 2 5 2ut;3
Clerk, U.S District Court
District Of Montana
Missoula

GREGORY LYNN WALLACE,
CV 17-74-BU-DLC-JCL
Petitioner,
ORDER

vs.
STATE OF MONTANA,
Respondent.

United States Magistrate Judge Jeremiah C. Lynch entered Findings and
Recommendations in this case on December 4, 2017, recommending that Plaintiff
Gregory Lynn Wallace's ("Wilson") petition be dismissed as time-barred without
excuse.

Wallace timely filed an objection to the Findings and Recommendations,

and so is entitled to a 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 if

the Court is left with a "definite and firm conviction that a mistake has been
committed."

United States v. Syrax, 235 F .3d 422, 427 (9th Cir. 2000) (citations

omitted).
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Notwithstanding the above, "[ w ]here 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
applicable portions of the findings and recommendations will be reviewed for clear
error."

Rosling v. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21, 2014)

(citations omitted).
Having reviewed Wallace's objection, the Court finds that he fails to
articulate any specific issue with Judge Lynch's reasoning, and instead reiterates
his perception that his constitutional rights have been violated in some manner.
Wallace has not demonstrated why his petition is untimely and why his failure to
comply with the federal limitations period should be excused.

Accordingly, the

Court reviews Judge Lynch's Findings and Recommendations for clear error and,
finding none,
IT IS ORDERED that Judge Lynch's Findings and Recommendations (Doc.
13) are ADOPTED IN FULL.

Wallace's petition for writ of habeas corpus (Doc.

1) is DISMISSED WITH PREJUDICE as time-barred without excuse.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by separate
document a judgment in favor of Respondent and against Petitioner.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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DATED this

~
day of January, 2018.

15'

Dana L. Christensen, Chief Judge
United States District Court

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