Mackey v. Kirkegard et al

Filing 4

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 3 in full. Petition 1 is DISMISSED WITH PREJUDICE. A Certificate of Appealability is DENIED. Signed by Judge Donald W. Molloy on 4/23/2014. Mailed to Mackey. (TAG, )

FILED

IN THE UNITED STATES DISTRICT COURT APR 232014
FOR THE DISTRICT OF MONTANA
CliJ::;tr¥erSo?istrictcOUrt
HELENA DIVISION
Miss1:ntana

DENNIS DALE MACKEY,

CV 13-50-H-DWM-RKS

Petitioner,
ORDER

vs.
WARDEN KIRKEGARD and the
ATTORNEY GENERAL OF THE
STATE OF MONTANA,
Respondents.

This matter comes before the Court on the proposed Findings and
Recommendations entered by United States Magistrate Judge Keith Strong, (Doc.
3), regarding the Petition for writ of habeas corpus brought under 28 U.S.C.

§ 2254 by Dennis Dale Mackey, (Doc. 1). Because Mackey is a prisoner, upon
filing, this matter was referred to Judge Strong. See L.R. 72.2(a). Judge Strong
filed his proposed Findings and Recommendations regarding the Petition on
March 25, 2014. (Doc. 3 at 5.) "Within fourteen days after being served with a
copy, any party may serve and file written objections to such proposed findings
and recommendations as provided by rules of court." 28 U.S.C. § 636(b)(1).
Because the statutory objections period states that a party may file objections
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within a specified time after service of the findings and recommendations, and
service of the Findings and Recommendations at issue was made by mail and
electronic means, three days are added after the period would otherwise expire.
See Fed. R. Civ. P. 6(d). Accordingly, written objections to Judge Strong's
proposed Findings and Recommendations were due April 11, 2014. No objections
were timely filed.
When no party objects, the Court reviews the findings and recommendations
of a United States Magistrate Judge for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error is
present only if the 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).
Judge Strong's report contains no mistake of fact or law and will be adopted
in-full. Mackey's challenge to the Montana Department of Corrections'
calculation of his sentences is not a viable federal petition for writ of habeas
corpus under 28 U.S.C. § 2254 because the facts he alleges do not show a
violation of federal law or constitutional right. Mackey's petition will be
dismissed with prejudice. Because Mackey's petition fails to make any
substantive showing that he is entitled to relief, a Certificate of Appealability will
be denied.
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IT IS ORDERED:

(l) The proposed Findings and Recommendations entered by United

States Magistrate Judge Keith Strong, (Doc. 3), are ADOPTED IN­
FULL.
(2) The Petition for writ of habeas corpus brought by Petitioner Dennis
Dale Mackey, (Doc. 1), is DISMISSED WITH PREJUDICE.
(3) The Clerk of Court shall enter by separate document a judgment in
favor of Respondents and against Petitioner, pursuant to Federal Rule
of Civil Procedure 58, and close this case.
(4) A Certificate of Appealability is DENIED. The Clerk of Court shall
immediatel~rocess

DATED this

any appeal filed by Petitioner Mackey.

J!i day of April, 2014.
loy, District Judge
.strict Court

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