Hernandez v. Kirkegard et al
Filing
4
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 3 in full. Hernandez's petition is DISMISSED WITHOUT PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 6/11/2014. Mailed to Hernandez. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
DAVID REKO HERNANDEZ,
CV 14-33-H-DLC
Petitioner,
vs.
ORDER
FILED
LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
JUN 11 2014
Clerk, u.s District Court
District Of Montana
Missoula
Respondents.
United States Magistrate Judge R. Keith Strong entered Findings and
Recommendation on May 19,2014, recommending that the petition be dismissed
without prejudice for failure to exhaust state judicial remedies. Hernandez failed
to timely object to the Findings and Recommendations, and so waived the right to
de novo review of the record. 28 U.S.C. § 636(b)(1). The Court will therefore
review the record for clear error. McDonnell Douglas Corp. v. Commodore Bus.
Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). The Court adopts Judge
Strong's findings and recommendation in full.
Defendant filed this habeas petition prior to filing his petition for
postconviction relief with the Montana Supreme Court. Defendant must exhaust
-1
his state judicial remedies before he brings his habeas action in federal court.
Rose v. Lundy, 455 U.S. 509,520 (1981); Slackv. McDaniel, 529 U.S. 473 (2000).
A certificate of appealability is not appropriate in this case. Gonzalez v. Thaler,
132 S.Ct. 641, 648 (2012).
IT IS ORDERED that Judge Strong's Findings and Recommendation
(Doc. 3) are ADOPTED IN FULL. Hernandez's petition is DISMISSED
WITHOUT PREJUDICE. A certificate of appealability is DENIED.
DATED this
II ~day of June 201
.
Dana L. Christensen, Chief Juage
United States District Court
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