Harper v. State of Montana et al

Filing 6

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. The Petition 1 is DISMISSED for lack of jurisdiction. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 6/21/2013. Mailed to Harper. (TAG, )

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

FILED
JUN 2 1 20·;3
Clerk, U.S District Court
District Of Montana
Missoula

CV 12-106-H-DLC-RKS

PETER WILLIAM HARPER,
Petitioner,

ORDER
vs.
STATE OF MONTANA,
Respondent.

United States Magistrate Judge Keith Strong entered Findings and
Recommendation on May 20, 2013, and recommended that the Petition (doc. 1) be
dismissed for lack of jurisdiction. Petitioner did not timely object to the Findings
and Recommendation, and so has waived the right to de novo review of the record.
28 U.S.C. § 636(b)(l). This Court will review the Findings and Recommendation
for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach .. Inc., 656
F.2d 1309, 1313 (9th Cir. 1981). Clear error exists ifthe Court is left with a
"definite and firm conviction that a mistake has been committed." United States v.
Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
Petitioner Harper filed this action seeking a writ of habeas corpus under 28

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U.S.C. § 2254. He challenges his conviction for resisting arrest. Judge Strong
concluded that because federal habeas jurisdiction does not lie against the
conviction for resisting arrest, this action should be dismissed. After a review of
Judge Strong's Findings and Recommendation, I find no clear error. Accordingly,
IT IS ORDERED that Judge Strong's Findings and Recommendation (doc.
4) are adopted in full. The Petition (doc. I) is DISMISSED for lack of
jurisdiction.
The Clerk of Court is direct to enter, by separate document, a judgment of
dismissal.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
DATED this .2l.:tay of June 201 .

Dana L. Christensen, Chief Juage
United States District Court

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