Ingram v. Kirkegard et al

Filing 33

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 32 in full. The Petition for writ of habeas corpus 1 is DISMISSED WITH PREJUDICE. A certificate ofappealability is DENIED. Signed by Judge Donald W. Molloy on 4/10/2014. Mailed to Ingram. (TAG, )

FILED

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

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CV 13-34-GF-DWM-RKS

KENNETH INGRAM,
Petitioner,
vs.

ORDER

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

This matter comes before the Court on the proposed Findings and
Recommendations entered by United States Magistrate Judge Keith Strong, (Doc.
32), regarding the Petition for writ of habeas corpus under 28 U.S.C. § 2254 filed
by Kenneth Ingram, (Doc. 1). Because Ingram is a prisoner, upon filing, this
matter was referred to Judge Strong. See L.R. 72.2(a). Judge Strong filed his
proposed Findings and Recommendations regarding the Petition on March 3,
2014. (Doc. 32 at 5.) "Within fourteen days after being served with a copy, any
party may serve and file written objections to such proposed findings and
recommendations as provided by rules of court." 28 U.S.C. § 636(b)(1). Because
the statutory objections period states that a party may file objections within a
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specified time after service ofthe findings and recommendations, and service of
the Findings and Recommendations at issue was made by mail and electronic
means, three days are added after the period would otherwise expire. See Fed. R.
Civ. P. 6(d). Accordingly, written objections to Judge Strong's proposed Findings
and Recommendations were due March 20, 2014.
Judge Strong's proposed Findings and Recommendations are reviewed for
clear error. No party timely filed written objections to the proposed Findings and
Recommendations. When no party objects, the Court reviews the proposed
findings and recommendations of a United States Magistrate Judge 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).
Judge Strong's report contains no mistake of fact or law and will be adopted
in-full. Judge Strong previously Ordered Ingram to show cause why his Petition
should not be dismissed with prejudice as time-barred and procedurally barred.
(Doc. 27.) The Order to Show Cause documented in detail the deficiencies of the
petition. (See id.) Ingram's response did not present any valid excuse to set aside
the statute of limitations and other applicable procedural bars. Ingram's Petition
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was filed almost four years after the expiration limitations period set forth at 28
U.S.C. § 2244(d)(1)(A), and is therefore barred by the statute of limitations. The
Petition is also procedurally deficient, as Ingram did not present any of his claims
in the state courts. Because Ingram's claims are plainly barred on these grounds
and no reasonable jurist could disagree with this Court's procedural ruling, a
certificate of appealability is not warranted and will be denied. See Gonzalez v.

Thaler, _

U.S. _ , 132 S.Ct. 641,648 (2012) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)).
IT IS ORDERED:
(1) The proposed Findings and Recommendations entered by United
States Magistrate Judge Keith Strong, (Doc. 32), are ADOPTED IN­
FULL.
(2) The Petition for writ of habeas corpus brought by Petitioner Kenneth
Ingram, (Doc. 1), is DISMISSED WITH PREJUDICE.
(3) A certificate of appealability is DENIED. The Clerk of Court shall
immediately process any appeal filed by Petitioner Ingram.
(4) The Clerk of Court shall enter by separate document a judgment in
favor of Respondents and against Petitioner, pursuant to Federal Rule
of Civil Procedure 58, and close this case.
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DATED this

~y of April, 2014.

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