Harper v. Warden Laughlin et al
Filing
5
ORDER ADOPTING 4 FINDINGS AND RECOMMENDATIONS. IT IS ORDERED that Judge Strong's 4 Findings and Recommendations are ADOPTED in full. IT IS FURTHER ORDERED that Petitioner's 1 Petition for Writ of Habeas Corpus is DISMMISSED. A certificate of appealability is DENIED. Copy of Order mailed to Harper. Signed by Judge Dana L. Christensen on 9/22/2014. (SLR, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
CV 14-59-GF-DLC
PETER WILLIAM HARPER,
Petitioner,
ORDER
vs.
WARDENLAUG~IN;MONTANA
FILED
FIRST JUDICIAL DISTRICT
COURT,
SEP 2 2 201~
Respondents.
Clerk. u.s DistrIct Court
District Of Montana
Missoula
United States Magistrate Judge R. Keith Strong entered Findings and
Recommendations on August 26, 2014 recommending that Harper's petition for
writ ofhabeus corpus be dismissed and a certificate of appealability be denied.
Petitioner did not tiinely object to the Findings and Recommendations, and so
waived the right to de novo review of the record. 28 U.S.C. § 636(b)(1). The
Court will therefore review the record for clear error. McDonnell Douglas Corp.
v. Commodore Bus. Mach., Inc., 656 F.2d 1309,1313 (9th Cir. 1981). Clear 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).
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There is no clear error in Judge Strong's Findings and Recommendations and the
Court adopts them in full.
On July 29, 2014 the Montana Supreme Court granted Harper a writ of
habeas corpus and subsequently remanded the case to the First Judicial District
Court, Lewis and Clark County, for resentencing. Harper now asks this Court to
order his immediate release. The Montana Supreme Court neither re-calculated
Harper's sentence nor ordered his immediate release. There is no clear error in
Judge Strong's finding that this Court generally does not consider claims before
they are properly exhausted in the Montana State courts. See Rose v. Lundy, 455
U.S. 509, 520 (1982). Harper has not yet exhausted his claim that he is being held
beyond the termination of his sentence in the courts of the State of Montana. This
claim is dismissed on appropriate procedural grounds, therefore there is no clear
error in Judge Strong's finding that denial of a certificate of appeal is warranted.
Accordingly, IT IS ORDERED that Judge Strong's Findings and
Recommendations (doc. 4) are ADOPTED in fiIIl.
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IT IS FURTHER ORDERED that Petitioners's Petition for Writ of Habeas
Corpus (doc. 1) is DISMISSED. A certificate of appealability is DENIED.
Dated this
z:z.~ay of September, 20
.
Dana L. Christensen, Chief Ju ge
United States District Court
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