Wagner v. Frink et al

Filing 5

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Petitioner's Motion to Proceed In Forma Pauperis 2 is DENIED. The Petition, 1 is DISMISSED for lack of jurisdiction, and a certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 11/5/2013. Mailed to Wagner. (TAG, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

CHRISTOPHER WAGNER,

CV 13-8O-GF-DWM-RKS

Petitioner,
ORDER

vs.
MARTIN FRINK and the
ATTORNEY GENERAL OF THE
STATE OF MONTANA,
Respondent.

This action was filed in the United States District Court for the District of
Montana, Great Falls Division on September 17,2013. Petitioner Christopher
Wagner seeks a writ of habeas corpus under 28 U.S.C. § 2254. United States
Magistrate Judge Keith Strong filed Findings and a Recommendation on October
15,2013. Pursuant to 28 U.S.C. § 636(b)(1), objections to the Findings and
Recommendation entered by Judge Strong were due by November 1,2013. No
objections were filed.
The Court reviews the findings and recommendation 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).
After a review of Judge Strong's Findings and Recommendation, I find no
clear error. Petitioner's inmate trust account statement shows that he can afford to
pay the $5.00 filing fee. His motion to proceed in forma pauperis is accordingly
denied. Wagner's petition seeking a writ of habeas corpus is without merit and
hereby dismissed. Petitioner seeks the writ because he was not given appointed
counsel his petition for post-conviction relief before the state district court. There
is no right to appointed counsel for collateral proceedings. See Martinez v. Ryan,
_

U.S. _ , 132 S. Ct. 1309, 1319-20 (2012). Furthermore this Court lacks

jurisdiction over Wagner's petition because his claim does not challenge the his
custody pursuant to a violation of "the Constitution or laws or treaties of the
United States." See 28 U.S.C. § 2254(a).
Based on the foregoing, IT IS ORDERED that Judge Strong's Findings and
Recommendations, (Doc. 4), are ADOPTED IN FULL. Petitioner's Motion to
Proceed In Forma Pauperis, (Doc. 2), is DENIED.
IT IS FURTHER ORDERED that Wagner's Petition, (Doc. 1), is
DISMISSED for lack ofjurisdiction.
IT IS FURTHER ORDERED a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by a
separate document judgment of dismissal and shall close this case.

,..;..
DATED this ~ day ofNovember, 2013.

Donald'1 olloy, District Judge
United 81 ates District Court
'.