Shepherd v. Assistant Warden Fender et al

Filing 36

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 26 in full. Petition for Writ of Habeas Corpus 1 DISMISSED WITH PREJUDICE. Pending motions ( 28 , 30 , 34 , 35 ) DISMISSED as moot. Certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 12/23/2015. Mailed to Shepherd. (TAG, )

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

CV 14-55-GF-DLC-JTJ

ROBERT A. SHEPHERD,
Petitioner,

ORDER
vs.

FILED

LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,

DEC 2 3 2015
Clerk, U.S District Court
District Of Montana

Respondents.

Missoula

United States Magistrate Judge John T. Johnston entered Findings and
Recommendations on August 5, 2015, recommending dismissing Petitioner
Robert A. Shepherd's ("Shepherd") Petition for Writ of Habeas Corpus. This
Court previously granted two requests by Shepherd for extensions of time to file
objections to Judge Johnston's Findings and Recommendations. (Docs. 29, 33.)
Shepherd failed to timely object to the Findings and Recommendations, and so
waived his right to de novo review of the record. 28 U.S.C. § 636(b)(l)(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

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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).
Having reviewed the Findings and Recommendations, the Court finds no
clear error in Judge Johnston's conclusion that: (1) Shepherd's claims are time
barred without excuse; (2) Shepherd has failed to make an adequate showing of
innocence to enable his claims to be heard on the merits; and (3) Shepherd has
failed to make an adequate showing of innocence to excuse his procedural default.
There being no clear error in Judge Johnston's Findings and
Recommendations, IT IS ORDERED that:

(1) Judge Johnston's Findings and Recommendations (Doc. 26) are
ADOPTED IN FULL.
(2) Shepherd's Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED
WITH PREJUDICE.
(3) All pending motions (Docs. 28, 30, 34, and 35) are DISMISSED as
moot.
(4) The Clerk of Court is directed to enter, by separate document, a
judgment of dismissal.
(5) A certificate of appealability is DENIED.
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Dated this 23rd day of December, 2015.

Dana L. Christensen, Chief istrict Judge
United States District Court

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