Ingram v. Kirkegard et al

Filing 26

ORDER ADOPTING 15 FINDINGS AND RECOMMENDATIONS to the extent they are not inconsistent with this Order; finding as moot 2 Motion for Leave to Proceed in forma pauperis; denying 10 Motion for Bail; denying 14 Motion for Transfer. Signed by Judge Donald W. Molloy on 9/30/2013. Mailed to Ingram. (TAG, )

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

KENNETH INGRAM,

SEP 3.0 2013
c~~'l!.s. Distr;

~ct Of M ct COUrt
Missou~ntana

CV 13-34-GF-DWM-RKS

Petitioner,
vs.

ORDER

LEROY KIRKEGARD, TIM FOX,
PONDERA COUNTY, and the
STATE OF MONTANA,
Respondents.

This action was filed in the United States District Court for the District of
Montana, Great Falls Division on April 23, 2013. Petitioner Kenneth Ingram
seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) United States
Magistrate Judge Keith Strong filed Findings and a Recommendation regarding

Mr. Ingram's Motion for Leave to Proceed in forma pauperis, Motion for Bail,
and Motion for Transfer on June 17,2013. (Doc. 15.) Pursuant to 28 U.S.C.

§ 636(b)(l), objections to the Findings and Recommendation entered by Judge
Strong were originally due July 5,2013. Mr. Ingram sought, (doc. 19), and was
granted, (doc. 23), an extension of time in which to file his Objections. He timely
filed his Objections on August 26,2013, before the extended deadline. (Doc. 25.)
Judge Strong recommended Mr. Ingram's Motion for Leave to Proceed in

forma pauperis be denied, as his account statement reflected a deposit of $500.00,
demonstrating his ability to pay the filing fee. After the entry of Judge Strong's
Findings and Recommendation, Mr. Ingram paid the filing fee. Having paid the
filing fee, Mr. Ingram's Motion for Leave to Proceed in forma pauperis is now
moot.
Judge Strong recommended Mr. Ingram's Motion for Transfer be denied.
Mr. Ingram's objections do not contain a response to Judge Strong's treatment of
his Motion for Transfer. The Court reviews the Findings and Recommendation
entered by a United States Magistrate Judge without objections for clear error.

McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981). Clear error is present only 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). After a review of Judge Strong's Findings and
Recommendation on Mr. Ingram's Motion for Transfer, I find no clear error. The
filing of a petition for a writ of habeas corpus under 28 U.S.C. § 2254 does not
give this Court authority over Mr. Ingram's custody. His Motion for Transfer is
denied, as it is not well-taken.
Judge Strong recommended Mr. Ingram's Motion for Bail be denied. Mr.
Ingram objects to Judge Strong's Findings and Recommendation regarding his
Motion for Bail. 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 regarding that portion of the Magistrate Judge's report. 28
U.S.C. § 636(b)(1)(B); McDonnell Douglas, 656 F.2d at 1313. After de novo
review of this portion of Judge Strong's report and Mr. Ingram's Objections to the
same, I agree with Judge Strong's conclusion that the Motion for Bail must be
denied. None of the cases cited in Mr. Ingram's Objections controvert Judge
Strong's finding that an Order by this Court directing state authorities to release
Mr. Ingram on bail while his petition is adjudicated is inappropriate. The Ninth
Circuit has not decided whether a district court has authority to release a state
prisoner on bail pending resolution of a habeas petition. In re Roe, 257 F.3d
1077, 1080 (9th Cir. 2001) (per curiam). Even assuming, arguendo, that this
Court does have the authority to grant the relief Mr. Ingram seeks, he has not
demonstrated his is an "extraordinary case[] involving special circumstances or a
high probability of success" warranting his release on baiL See Land v. Deeds,
878 F.2d 318, 318-19 (9th Cir. 1989) (citations omitted).
In accordance with the foregoing, IT IS ORDERED that Judge Strong's
Findings and Recommendations, (doc. 15), are ADOPTED to the extent they are
not inconsistent with this Order. Mr. Ingram's Motion for Leave to Proceed in

forma pauperis, (doc. 2), is DENIED as moot. Mr. Ingram's Motion for Transfer,
(doc. 14), is DENIED. Mr. Ingram's Motion for Bail, (doc. 10), is DENIED.

DATED this

J./day of September 2013.