Daniels v. Kirkegard et al

Filing 10

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. A certificate of appealability is DENIED. Signed by Judge Brian Morris on 9/25/2017. Mailed to Daniels (TAG)

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

MICHAEL DANIELS,
CV-17-18-GF-BMM-JTJ
Petitioner,
v.
LEROY KIRKEGARD, TIMOTHY C.
FOX,
Defendants.

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

Petitioner Michael Daniels has applied for writ of habeas corpus under 28
U.S.C. § 2254. United States Magistrate Judge John Johnston issued Findings and
Recommendations in this matter on August 31, 2017. (Doc. 8.) Judge Johnston
recommended that the Court dismiss Daniels’ petition with prejudice as timebarred without excuse. Id. at 10.
The Court reviews de novo findings and recommendations to which
objections are made. 28 U.S.C. § 636(b)(1)(C). Portions of findings and
recommendations not specifically objected to are reviewed for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981). Where a party's objections, however, constitute perfunctory
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responses argued in an attempt to engage the district court in a rehashing of the
same arguments set forth in the original response, the Court will review the
applicable portions of the findings and recommendations for clear error. Rosling v.
Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014) (internal citations
omitted).
Daniels filed an objection. (Doc. 9.) The document contained substantial rehashing of his arguments regarding Apprendi v. New Jersey, 530 U.S. 466 (2000).
Id. at 1-3. Daniels also alleges that the implication of a constitutional right in his
petition should overcome his petition’s untimeliness. Id. at 3-4. The Court notes
that Mr. Daniels was provided notice and the opportunity to respond regarding the
timeliness issue. (Docs. 8 at 3; 5; 6) He raised similar arguments at that time. (Doc.
6 at 1-2.) Thus, the Court finds no specific objections that are not an attempt to
rehash the same arguments, and will review the Findings and Recommendations
for clear error.
I.

BACKGROUND

Daniels challenges a conviction for robbery in Montana's Eighth Judicial
District Court, Cascade County, on August 30, 2001. (Doc. 1 at 2-3.) The court
originally sentenced Daniels to thirty-five years, with five years suspended. (Doc.
1 at 3.) He also received a consecutive ten years sentence, with five years
suspended, for use of a weapon. Id. The trial court modified Daniels’ sentence to
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forty-five years with twenty years suspended on April 6, 2004, pursuant to § 41-52510 of the Montana Youth Court Act. Id. at 7.
Daniels filed a direct appeal, and his conviction was affirmed by the
Montana Supreme Court on September 18, 2003. State v. Daniels, 2003 MT 247,
317 Mont. 331, 77 P. 3d 224. Daniels also filed a petition for postconviction relief
arguing that the weapons enhancement was unlawful. (Doc. 8 at 2.) The trial court
denied his petition, and the Montana Supreme Court affirmed on December 28,
2005. Daniels v. State, No. 04-795, 2005 MT 345N, 330 Mont. 401, 126 P. 3d 507.
The Montana Supreme Court denied Daniels’ subsequent petition for a writ of
habeas corpus on the grounds that Daniels had not demonstrated that his sentence
is illegal on May 17, 2016. Daniels v. Kirkegard, No. 16-0259, Or. at 3-4.
Daniels alleges that his Fifth, Sixth, and Fourteenth Amendment Rights were
violated. (Doc. 1 at 5.) He specifically claims that the trial court erred in applying a
weapons enhancement to his sentence without submitting the question to the jury
and requiring proof beyond a reasonable doubt in violation of the rule in Apprendi.
Id. He also argues that his trial counsel and the trial court should have applied
Apprendi at his 2004 re-sentencing. Id. at 7.
II.

DISCUSSION

Judge Johnston recommends that the Court dismiss Daniels’ petition with
prejudice as untimely without excuse.
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A. Timeliness
A one-year limitations period applies to petitions filed by state prisoners
under 28 U.S.C. § 2254. Giving Daniels the benefit of all doubt, Judge Johnston
found that sentence became final on December 28, 2005, the date the Montana
Supreme Court affirmed denial of his postconviction petition. (Doc. 8 at 4.) Judge
Johnston also found that Daniels did not file his federal habeas petition for more
than ten years after his sentence was finalized. Id.
The Court agrees with and adopts Judge Johnston’s analysis and
determination that statutory tolling brings Daniels’ claim within the one-year
limitation. (Doc. 8 at 5-6.) The Court further agrees with and adopts Judge
Johnston’s analysis and determination that Daniels has failed to show he is entitled
to equitable tolling. Id. at 6-8. Daniels’ petition is untimely.
With regard to Mr. Daniels’ argument that the implication of a constitutional
right should defeat the statute of limitations, this Court notes that the entire
function of 28 U.S.C. § 2254 is to provide redress for violations of constitutional
rights. 28 U.S.C. § 2254(a). Yet, Congress enacted the corresponding 28 U.S.C. §
2244(d)(1), which sets a one-year statute of limitations for such claims. As such,
Daniels has failed to demonstrate any extraordinary circumstance prevented him
from filing in this Court in the ten years since his conviction became final, or the

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twelve years since the record demonstrates he became aware of Apprendi. (Doc. 8
at 8.)
III.

ORDER

Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 8) is ADOPTED IN FULL. Daniels’ petition is
DISMISSED WITH PREJUDICE as time-barred without excuse.
The Clerk of Court is directed to enter by separate document a judgment in
favor of Respondents and against Petitioner.
A certificate of appealability is DENIED.
DATED this 25th day of September, 2017.

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