Wells v. Kirkegard et al
Filing
12
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 11 Findings and Recommendations, 1 Petition for Writ of Habeas Corpus filed by George C. Wells. IT IS ORDERED that: 1.The Petition (Doc. 1) is DENIED as moot. 2.The Clerk of Court shall enter by separate document a judgment of dismissal.3.A certificate of appealability should be DENIED. Signed by Judge Brian Morris on 5/26/2016. (SLL, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
CV 15-107-GF-BMM
GEORGE C. WELLS,
Petitioner,
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS
vs.
LEROY KIRKEGARD, WARDEN
ATTORNEY GENERAL OF THE
STATE OF MONTANA,
Respondents.
George C. Wells filed a Petition for Writ of Habeas Corpus on December 4,
2015. Wells had filed a state habeas petition in 2015 that asserted that his
conviction as a persistent felony offender should be considered illegal. Wells v.
Kirkegard, No. OP 15-0466 (Mont. filed Sept. 29, 2015). The Montana Supreme
Court determined the persistent felony offender sentence illegal. The Montana
Supreme Court remanded the matter to the Eighth Judicial District Court for
resentencing.
Wells petition in this Court expressed confusion about why the district court
had not yet resentenced him. (Doc. 1 at 2.) Judge Pinski has since resentenced
Wells in Cause No. ADC-81-116. United State Magistrate Judge John Johnston
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entered Findings and Recommendations in this matter on the April 27, 2016. (Doc.
11.) Judge Johnston has recommended that Well’s petition be denied as moot.
(Doc. 11 at 4.) Judge Johnston also has recommended that the Clerk of Court be
directed to enter by separate document a judgment of dismissal. Id. Judge Johnston
has recommended further that the Court should deny a certificate of appealability.
Id.
Wells filed no objections to Judge Johnston’s Findings and
Recommendations. When a party makes no objections, the Court need not review
de novo the proposed Findings and Recommendations. Thomas v. Arn, 474 U.S.
140, 149-52 (1986). The Court will review Judge Johnston’s Findings and
Recommendations, however, for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
Under Article III of the United States Constitution, federal jurisdiction
should be limited to actual ongoing cases or controversies. U.S. Const. Art. III, § 2,
cl. 1; see also Spencer v. Kemna, 523 U.S. 1, 7 (1998). The trial court’s
resentencing of Wells pursuant to the Montana Supreme Court’s remand order
eliminates the “case” or “controversy” raised in Well’s petition. Well’s habeas
petition should be denied as moot.
The Court finds no clear error in Judge Johnston’s Findings and
Recommendations and adopts them in full.
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Accordingly, IT IS ORDERED that:
1. The Petition (Doc. 1) is DENIED as moot.
2. The Clerk of Court shall enter by separate document a judgment of
dismissal.
3. A certificate of appealability should be DENIED.
DATED this 25th day of May, 2016
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