Barger v. Mahoney et al

Filing 8

ORDER. Barger's motion 7 is DISMISSED for lack of jurisdiction and a certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 1/6/2012. Mailed to Barger. (TAG, )

IN TIlE UNITED STATES DISTRICT COURT
FOR TIlE DISTRICT OF MONTANA
HELENA DIVISION

DUSTY W. BARGER, also
known as Dusty W. Leetch,

Petitioner,
vs.
MIKE MAHONEY; ATTORNEY
GENERAL OF TIlE STATE OF
MONTANA,

Respondent.

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ORDER DISMISSING MOTION
AND DENYING CERTIFICATE
OF APPEALABILITY

This action for writ of habeas corpus under 28 U.S.C. § 2254 was closed on
January 12,2011. On January 3, 2012, Petitioner Barger filed a motion asking that
he be fmgerprinted. Barger is a state parolee proceeding pro se.
The only conceivable purpose of fingerprinting would be to prove that
Petitioner Dusty Barger, aIkIa Dusty Leetch, is not the person who committed the
crimes of which Petitioner Dusty Barger, aIkIa Dusty Leetch, was convicted. That
means, in tum, that the motion for fingerprinting is not a garden-variety motion under
Fed. R. Civ. P. 60(b) but, in substance, a second or successive habeas petition,

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Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005), and, consequently, this Court lacks
jurisdiction even to consider it, Burton v. Stewart, 549 U.S. 147, 149 (2007) (per
curiam); 28 U.S.C. § 2244(b )(3)(A). The Ninth Circuit Court ofAppeals would have
jurisdiction to consider an application for authorization to file a second petition in this
Court, but transfer is not in the interests ofjustice, 28 U.S.c. § 1631. Barger's initial
claims of "diplomatic immunity" and a purely fictitious "10 for 10 law," which
appeared to be some kind of "law enforcement privilege" to commit crime, were
frivolous, untimely nearly ten years, and unexhausted. In addition, Barger objected
to the Magistrate Judge's Findings and Recommendation by suggesting that he be
fingerprinted, his objection was overruled, and Barger did not appeal. See Order
(doc. 5) at 2-3.
A certificate ofappealability is not warranted because Barger has never made
a substantial showing ofthe denial ofa constitutional right 28 U.S.C. § 2253( c)(2).

Accordingly, IT IS HEREBY ORDERED that Barger's motion (doc. 7) is
DISMISSED for lack ofjurisdiction and a certificate of appeala ility is DENIED.
DATED this C:lday

ofJaniuar~!Ql

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