Wallace v. Kirkegard et al

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN FULL, DISMISSING action WITH PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 9/17/2015. Mailed to Wallace. (NOS, )

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

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Mont Ourt

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Cause No. CV 15-11-H-DLC-JTJ

GREGORY LYNN WALLACE,
Petitioner,

ORDER
vs.
LEROY KIRKEGARD, et al.,
Respondents.

United States Magistrate Judge John T. Johnston entered his Findings and
Recommendations in this case on June 29, 2015, granting Petitioner Gregory
Wallace's Motion for Leave to Proceed in Forma Pauperis, and recommending
denial of Wallace's petition for writ of habeas corpus as time-barred and
procedurally defaulted without excuse. Wallace 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). 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). There is no clear error in Judge Johnston's
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Findings and Recommendations and the Court adopts them in full. Because the
parties are familiar with the facts of this case they will only be included here as
necessary to explain the Court's order.
There is no clear error in Judge Johnston's finding that Wallace's habeas
petition is time-barred. A one-year limitations period applies to petitions filed by
state prisoners under 28 U.S.C. § 2254. Wallace identifies no reason to apply one
of the other "trigger" dates in 28 U.S.C. § 2244(d)(l), and the Court perceives
none. Wallace's federal petition had to be filed by August 20, 2013, within one
year of the date his conviction became final, but Wallace did not file until January
30, 2015. Therefore his claim is time-barred.
Nor did Judge Johnston clearly err in finding that Wallace's habeas petition
is procedurally defaulted without excuse. A federal habeas court generally will
not hear claims that have never been fairly presented in state court. Wallace did
not raise his claims in the trial court, nor did the Montana Supreme Court hear or
decide the merits of any of the claims presented by Wallace. Consequently, all of
Wallace's claims are subject to dismissal for procedural default. Ake v. Oklahoma,
470 U.S. 68, 74-75 (1985); Collier v. Bayer, 408 F.3d 1279, 1284 (9th Cir. 2005);

Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (en bane) (quoting
Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). Further, Wallace has not
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overcome procedural default by either making an adequate showing of cause and
prejudice for his failure to exhaust his state court remedies, see Strickler v.

Greene, 527 U.S. 263, 282 (1999), nor has he demonstrated actual innocence, see
McCleskey v. Zant, 499 U.S. 467,494 (1991).
IT IS ORDERED that Judge Johnston's Findings and Recommendations
(Doc. 7) are ADOPTED IN FULL. This action is DISMISSED WITH
PREJUDICE. The Clerk of Court shall enter by separate document a judgment in
favor of Respondents and against Petitioner. A certificate of appealability is
DENIED.
DATED this

\1-~ay of Septembe

Dana L. Christensen, Chief Judge
United States District Court

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