Warren v. Frink et al
Filing
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. The petition 1 is DISMISSED WITHOUT PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 8/6/2014. Mailed to Warren. (TAG, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
FILED
AUG 06 2014
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CV 14-35-H-DLC
JAMES M. WARREN,
Petitioner,
ORDER
vs.
CCA WARDEN FRINK; A TIORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
Petitioner James M. Warren, a state prisoner proceeding pro se, has filed
this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Warren
is challenging the validity of his probation and sentence claiming Constitutional
due process and equal protection violations.
United States Magistrate Judge Keith Strong entered his findings and
recommendation in this matter on May 28,2014. (Doc. 4.) Judge Strong
recommends that the Court dismiss the petition without prejudice and deny a
certificate of appealability ("COA") because Warren has failed to exhaust his state
court remedies. Warren timely objected, preserving his right to de novo review of
the specific findings and recommendations to which he objects. 28 U.S.C. §
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636(b)(1). The portion ofthe findings and recommendations not specifically
objected to will be reviewed for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). For the
reasons stated below, the Court will adopt Judge Strong's findings and
recommendation in full.
Warren raises two objections to Judge Strong's findings and
recommendation. Warren's first objection is a general one, asserting non-specific
violations of Constitutional due process and equal protection. Warren's second
objection, if it may be called one, "agrees ... to DISMISS WITHOUT
PREJUDICE his Habeas Corpus Petition," but also asserts that he "has already
exhausted his state judicial remedies." (Doc. 9 at 1.)
Warren's general objection alleging Constitutional violations fails to
establish a proper objection for de novo review. Federal Rule of Civil Procedure
72 (b) provides that a "party may serve and file specific written objections to the
proposed findings and recommendations," and to resolve the objection, "[t]he
district judge must determine de novo any part of the magistrate judge's
disposition that has been properly objected to." Mr. Warren's objection, "Mr.
Warren objects ... on grounds of US Constitutional grounds of DUE PROCESS
and EQUAL PROTECTION" (Doc. 9 at 1), is not a specific objection. The
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objection fails to identify any specific issue in the findings and recommendation
and provides no detail regarding how Judge Strong's findings and
recommendation violates his Constitutional rights. Warren's objection is improper
because it is general and conclusory, and accordingly, it is overruled.
Warren's second objection cannot be considered until he exhausts his
remedies in state court. "A state prisoner's federal habeas petition should be
dismissed if the prisoner has not exhausted available state remedies" for his
claims. Coleman v. Thompson, 501 U.S. 722, 731 (1991) (citation omitted), Rose
v. Lundy, 455 U.S. 509,520 (1982) (providing "a simple and clear instruction to
potential litigants: before you bring any claims to federal court, be sure that you
first have taken each one to state court."). A state prisoner seeking federal habeas
relief must fairly present the alleged constitutional violation to the state court to
satisfy the exhaustion requirement. Picard v. Connor, 404 U.S. 270, 275 (1971).
Montana law provides a state habeas corpus remedy for persons challenging their
custody. Mont. Code Ann. § 46-22-101.
Warren's petition makes clear that he has not exhausted available state court
remedies. Warren's reason for not pursuing state court remedies, that he will not
get relief, does not exempt him from the exhaustion requirement. Warren must
first present the alleged constitutional violations to the state courts to satisfy the
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exhaustion requirement. Accordingly, Warren's second objection is overruled.
The Court finds no clear error in Judge Strong's recommendation that a
Certificate of Appealability ("COA") should be denied. A COA should issue only
as to those claims for which the petitioner makes "a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is satisfied
if "jurists of reason could disagree with the district court's resolution of [the]
constitutional claims" or "conclude the issues presented are adequate to deserve
encouragement to proceed further." Miller-EI Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Warren's petition fails to
show an exhausted state claim and does not make a substantial showing of a denial
of a constitutional right. A COA is not warranted.
IT IS ORDERED that:
(1) Judge Strong's findings and recommendation (Doc. 4) is ADOPTED
in full.
(2) Mr. Warren's petition (Doc. 1) is DISMISSED WITHOUT
PREJUDICE.
(3) The Clerk of Court is instructed to enter a judgment of dismissal in
favor of Respondents and against Petitioner by separate document.
(4) A certificate of appealability is DENIED.
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Dated this
L
-U,
day of August 201 .
Dana L. Christensen, Chief Ju ge
United States District Court
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