Enright v. State of Montana et al

Filing 6

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. The Petition 1 is DENIED. The 2 Motion to Proceed in Forma Pauperis is DENIED. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 3/27/2013. Mailed to Enright. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

DONNA JUNE ENRIGHT,

FILED
MAR 2 7 2013
Clerk, U.S District Court
District Of Montana
Missoula

CV 13-18-GF-DWM-RKS

Petitioner,
ORDER

vs.
LEROY KIRKEGARD, Warden,
Montana State Prison,
Respondent.

Before the Court are the findings and recommendations of United States
Magistrate Judge Keith Strong regarding Petitioner Donna June Enright's petition
for writ of habeas corpus and motion for leave to proceed in forma pauperis.
Plaintiff objects to Judge Strong's findings and recommendations.
When a party objects to any portion of findings and recommendations
issued by a Magistrate Judge, the district court must make a de novo determination
of that portion of the Magistrate'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).
In considering Petitioner's motion for leave to proceed informa pauperis,
Judge Strong observed her prison trust account statement shows a balance of

$307.08, ample funds with which Petitioner could pay the $5.00 filing fee.
Petitioner's objections do not contest this finding, therefore, Judge Strong's
recommendation that Petitioner's motion for leave to proceed in forma pauperis
be denied is adopted in full.
As explained by Judge Strong, this is Petitioner Donna June Enright's
second petition for a writ of habeas corpus predicated on the May 1999 criminal
judgment against her for homicide and arson in Judith Basin County. This Court
does not have jurisdiction to consider a second or successive habeas petition. 28
U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 149 (2007) (per
curiam). Since this Court's jurisdiction is plainly lacking, a certificate of
appealability will not be issued. Lambright v. Stewart, 220 F .3d 1022, 1026 (9th
Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner's
objections do not contest these findings, therefore, Judge Strong's
recommendation that Petitioner Donna June Enright's petition be dismissed and a
certificate of appealability be denied are adopted in full.
In accordance with the foregoing, IT IS ORDERED that Judge Strong's
findings and recommendations (doc. 4) are ADOPTED IN FULL. Petitioner's
motion for leave to proceed in forma pauperis (doc. 2) is DENIED.
IT IS FURTHER ORDERED that Petitioner Donna June Enright's petition
for writ of habeas corpus is DENIED. A certificate of appealability is DENIED.

The Clerk of Court is directed to close the case and enter judgment against
Petitioner by a separate document pursuant to Rule 58 of the Federal Rules of
Civil Procedure.
~

DATED this H_ day of March, 2013.

olloy, District Judge
tates District Court