Simon v. State of Montana et al

Filing 31

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. The Petition 1 is DISMISSED for lack of exhaustion. A certificate of appealability is DENIED. Signed by Judge Brian Morris on 12/8/2014. Mailed to Simon. (TAG, )

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

CV 14-67-GF-BMM

DeANNA K. SIMON,
Petitioner,
vs.

ORDER
STATE OF MONTANA; SHERIFF
OF CASCADE COUNTY,
Respondents.

DeAnna K. Simon filed a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2241 on September 11, 2014. (Doc. 1). Simon also moved for a hearing
on the application. (Doc. 3). Simon is a state prisoner proceeding pro se.
United States Magistrate Judge Keith Strong entered Findings and
Recommendations in this matter on September 25, 2014. (Doc. 4). Judge Strong
recommended that this Court dismiss Simon’s Petition based upon her failure to
exhaust state judicial remedies and that this Court deny a certificate of
appealability. Judge Strong denied Simon’s motion for a hearing.
Simon filed a Notice of Change of Address on September 29, 2014. (Doc.
7). Mail sent to Simon at the Cascade County Detention Facility was returned and
remailed to Simon at the Montana State Hospital on October 3, 2014, where she is
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currently housed. (Doc. 8). Simon had 14 days to object to Judge Strong’s Findings
and Recommendations. Simon submitted objections to Judge Strong’s Findings
and Recommendations sometime after October 20, 2014. (Docs. 10-29). Simon
failed to object within 14 days of service as required under 28 U.S.C. § 636(b)(1).
The Court declines to review Simon’s untimely objections.
When a party fails to make timely written objections, the Court need not
review de novo the proposed Findings and Recommendations. United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). This Court will review Judge
Strong’s Findings and Recommendations, however, for clear error. McDonnell
Douglas Corp. v. Commodore Bus. Mach. Inc., 656 F.2d 1309, 1313 (9th Cir.
1981).
The Court finds no clear error in Judge Strong’s Findings and
Recommendations and adopts them in full. Federal courts do not entertain habeas
corpus challenges to state court proceedings unless the petitioner has exhausted
state avenues for raising federal claims. Carden v. Montana, 626 F.2d 82, 83 (9th
Cir. 1980). To exhaust state remedies, a petitioner must present each claim to the
state’s highest court and the state’s highest court must dispose of each claim on its
merits. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). Simon’s Petition provides no
reason to believe that exhaustion has occurred. Montana Supreme Court records
show no action in Simon’s name.

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A prisoner denied habeas relief must obtain a certificate of appealability
before an appeal may be entertained. Miller-El v. Cockrell, 537 U.S. 322, 335-36
(2003). A certificate will be issued only if the requirements of 28 U.S.C. §
2253(c)(2) have been satisfied and all state remedies have been exhausted. MillerEl, 537 U.S. at 336. Regardless of whether Simon fulfills § 2253(c)(2)’s
requirements, Simon has failed to exhaust her claims in state court.
IT IS HEREBY ORDERED:
1.

The Petition (Doc. 1) is DISMISSED for lack of exhaustion.

2.

A certificate of appealability is DENIED.

3.

The Clerk is directed to enter by separate document a judgment of dismissal.
DATED this 8th day of December, 2014.

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