DeCelles v. Fletcher et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. A certificate of appealability is DENIED. Signed by Judge Brian Morris on 10/10/2017. Mailed to Decelles. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
MICHAEL FLETCHER, ATTORNEY
GENERAL OF THE STATE OF
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
Petitioner Michael DeCelles applied for writ of habeas corpus under 28
U.S.C. § 2254 on June 2, 2017. (Doc. 1 at 8.) United States Magistrate Judge John
Johnston issued Findings and Recommendations in this matter on September 6,
2017. (Doc. 6.) Judge Johnston recommended that the Court dismiss Decelles’s
petition with prejudice as time-barred without excuse. Id. at 10.
No party has filed objections. The Court has reviewed Judge Johnston’s
Findings and Recommendations for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). The Court
finds no error in Judge Johnston’s Findings and Recommendations, and adopts
them in full.
DeCelles challenges convictions for criminal endangerment and the use of a
weapon in Montana's Eighth Judicial District Court, Cascade County, on July 16,
2001. (Doc. 6 at 1.) He was sentenced to 10 years of custody with five years
suspended on each of three counts of Criminal Endangerment. (Doc. 1 at 3.) He
was sentenced additionally to a five-year consecutive sentence for the use of a
weapon. (Doc. 1 at 3.)
DeCelles neither filed a direct appeal nor sought collateral review. (Doc. 1 at
3-4.) He did file a petition for habeas relief in the Montana Supreme Court on
April 10, 2017. His petition was denied on April 18, 2017. (Doc. 1 at 6.); DeCelles
v. Kirkegard, OP 17-0210 (Mont. April 18, 2017).
DeCelles alleges that his Fifth, Sixth, and Fourteenth Amendment Rights
were violated. (Doc. 1 at 5.) He specifically claims that the trial court erred in
convicting him, and sentencing him, for use of a weapon without submitting the
question to the jury and requiring proof beyond a reasonable doubt in violation of
the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Judge Johnston recommends that the Court dismiss Decelles’s petition with
prejudice as untimely without excuse.
A one-year limitations period applies to petitions filed by state prisoners
under 28 U.S.C. § 2254. Judge Johnston found that Decelles’s sentence became
final on December 10, 2001, the date that his right to direct appeal expired. (Doc. 6
at 3.) Judge Johnston also found that DeCelles did not file his federal habeas
petition for more than fourteen years after his sentence was finalized. Id.
The Court agrees with and adopts Judge Johnston’s analysis and
determination that statutory tolling does not bring Decelles’s claim within the oneyear limitation. (Doc. 6 at 4.) The Court further agrees with and adopts Judge
Johnston’s analysis and determination that DeCelles has failed to show he is
entitled to equitable tolling. (Doc. 6 at 5-7.) Decelles’s petition is untimely.
Finally, the Court agrees with Judge Johnston’s assessment that Decelles’s
claim lacks merit due to his guilty plea and to the extent that his claims are based
on state law. (Doc. 6 at 7.) Even if Decelles’s petition were timely, he would not be
entitled to relief.
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 6) is ADOPTED IN FULL. Decelles’s 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 10th day of October, 2017.
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