Clary v. Fender
Filing
9
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 in full. Petition 1 is DISMISSED WITH PREJUDICE. Motion for Order to Show Cause 5 is DENIED AS MOOT. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 8/5/2016. Mailed to Clary. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
CV 15-111-GF-DLC-JTJ
CHARLES CLARY,
Petitioner,
ORDER
vs.
DOUGLAS FENDER; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
United States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on May 20, 2016, recommending dismissal of
Petitioner Charles Clary's ("Clary") application for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Clary timely filed an objection and is therefore entitled to de
novo review of those Findings and Recommendations to which he specifically
objects. 28 U.S.C. § 636(b)(1 )(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 error exists if the Court is left
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with a definite and firm conviction that a mistake has been committed." United
States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
In his objection, Clary argues that the Findings and Recoinmendations
deliberately misconstrued his response (Doc. 5) 1 to Judge Johnston's Show Cause
Order (Doc. 4), in order to avoid the claim of judicial bias and the resulting
constitutional violations. Though hard to follow, Clary apparently maintains that
Judge Julie Macek was biased as a result of her granting a motion for leave to file
an information and then subsequently presiding over his criminal trial. As such,
Clary maintains this his constitutional rights were violated and his conviction
should be overturned because his defense attorney failed to challenge this alleged
bias. These objections, however, fail to sufficiently challenge Judge Johnston's
ultimate finding that Clary has failed to establish cause to overcome his procedural
default.
As explained by Judge Johnston's Show Cause Order, because the claims
raised in Clary's habeas petition were not fairly presented in state court, he is now
required to show cause why his petition should not be dismissed. Martinez v.
1
Clary's response to the Show Cause Order was captioned "MOTION TO SHOW
CAUSE AND PREJUDICE OF ADJUDICATOR." (Doc. 5 at 1.) As a result of this caption, the
response was erroneously docketed as a motion. Because this document is a response and not a
motion, the Court will deny this "motion" as moot.
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Ryan, 132 S. Ct. 1309, 1316 (2012) ("A prisoner may obtain federal review of a
defaulted claim by showing cause for the default and prejudice from a violation of
federal law."). His response and his objections fail to do so.
Clary maintains that Judge Macek was biased and his defense attorney
should have moved to disqualify her. The problem with this argument, however,
is that Clary knowingly waived his right to counsel and represented himself pro se
during the trial. Montana v. Clary, 270 P.3d 88, 94 (2012). Nonetheless, even if
this argument could have been raised by Clary's direct appeal and postconviction
attorneys, the Court finds that it lacks merit. Ayers v. Kirkegard, CV
14-110-BLG-DLC, 2015 WL 268870, at *2 (D. Mont. Jan. 21, 2015) (granting a
motion to file an information "does not make a judge part of the accusatory
process any more than issuing a search warrant makes a judge part of the
investigative process"). Clary's argument thus fails to establish cause to excuse
the procedural default.
Accordingly, IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 7) are
ADOPTED IN FULL.
(2) Clary's petition (Doc. 1) is DISMISSED WITH PREJUDICE as
procedurally defaulted without excuse.
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(3) Clary's Motion for Order to Show Cause (Doc. 5) is DENIED 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.
DATED this
g-Ht day of August, 2
Dana L. Christensen, Chief Judge
United States District Court
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