Spinks v. Attorney General of the State of Montana
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 in full. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 3/13/2017. Mailed to Spinks. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
MAR 13 2017
Cler1<, U.S District Court
District Of Montana
ATTORNEY GENERAL FOR THE
STATE OF MONTANA,
United States Magistrate Judge John T. Johnston entered his findings and
recommendations in this case on January 6, 2017, recommending denial of
Petitioner Brian Spinks's ("Spinks") petition for writ of habeas corpus under 28
U.S.C. § 2254. Spinks failed to timely 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). The Court adopts Judge Johnston's findings and
recommendations in full.
Judge Johnston found, and this Court agrees, that Spinks's petition should
be denied for lack of merit. Spinks is not able to overcome the highly deferential
standard AEDPA imposes upon this Court and, thus, deference must be afforded
to the state court decisions. In his petition, Spinks is not able to prove that there
was a violation of his right to a fair trial and impartial jury, that the restraints and
security measures used against Spinks in the underlying matter were excessive,
that his trial counsel was ineffective, or that his appellate counsel was ineffective.
Accordingly, IT IS ORDERED that Judge Johnston's findings and
recommendations (Doc. 14) are ADOPTED IN FULL. This action is DISMISSED
WITH PREJUDICE. The Clerk of Court shall enter by separate document a
judgment in favor of Respondent and against Petitioner Spinks. A certificate of
appealability is DENIED.
(~ft,day of March, 201
Dana L. Christensen, Chief Judge
United States District Court
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