Pryor v. Kirkegard et al
Filing
10
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. The Petition for Writ of Habeas Corpus 1 and Amended Petition 7 are DISMISSED WITH PREJUDICE as time-barred. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 11/6/2014. Mailed to Pryor. (TAG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
JESSE THOMAS PRYOR,
NOV 06 2014
Clerk, u.s District Court
District Of Montana
Missoula
CV 13-80-H-DWM-RKS
Petitioner,
ORDER
vs.
LEROY KIRKEGARD and ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
Jesse Thomas Pryor is a state prisoner proceeding pro se. He petitions this
Court for a writ of habeas corpus under 28 U.S.C. § 2254. Magistrate Judge Keith
Strong recommends dismissing the petition as untimely. (Doc. 8.)
Pryor timely filed written objections to Judge Strong's Findings and
Recommendation, however the substance of Pryor's objections address the
doctrine of res judicata and the reasonableness of his sentence, not Judge Strong's
finding that his petition is time-barred. (Doc. 9) On dispositive motions, the
parties are entitled to de novo review ofthe specified findings or recommendations
to which they object, 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v.
1
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), and where
there are no objections, the court is to give the level of consideration it deems
appropriate, Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that
Congress intended to require district court review of a magistrate's factual or legal
conclusions, under a de novo or any other standard, when neither party objects to
those findings."). This Court reviews for clear error. Clear error exists 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).
The Court finds no clear error with Judge Strong's determination that
Pryor's petition is untimely. Even broadly construing Pryor's objections as
objections to Judge Strong's specific findings and recommendation as to the
untimeliness of the petition, the Court concludes the petition is time-barred. A
federal habeas petition must generally be filed within one year from the date the
petitioner's conviction became final. 28 U.S.C. § 2244(d)(1)(A). Pryor's
conviction became final on October 4, 2010, at the latest. (Am. Pet., Doc. 7 at
2); see Mont. R. App. P. 4(5)(b)(I); Gonzalez v. Thaler, _ U.S. _, 132 S. Ct. 641,
653-54 (2012). Pryor should have filed his federal habeas petition on or before
October 4,2011, but he filed on December 20,2013, more than 26 months too
late.
2
Accordingly, IT IS ORDERED that the Findings and Recommendation
(Doc. 8) is ADOPTED IN FlTLL. Jesse Thomas Pryor's Petition for Writ of
Habeas Corpus (Doc. 1) and Amended Petition (Doc. 7) are DISMISSED WITH
PREJUDICE as time-barred.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter by
separate document a judgment in favor of Respondents and against Petitioner.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
Dated this
j}:
day of November, 2014.
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?