Harper v. Kirkegard et al

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. Petition for writ of habeas corpus 1 is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 1/5/2016. Mailed to Harper. (TAG, )

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

JAN 0 5 2016
Cle~. l:f .S. District Court
District Of Montana
Missoula

CV 15-30-H-DLC-JTJ

PETER WILLIAM HARPER,
Petitioner,

ORDER
vs.
LEROY KIRKEGARD, TIM FOX,
Respondents.
United States Magistrate Judge John T. Johnston entered findings and
recommendations in this matter on September 22, 2015, recommending dismissal
of Petitioner Peter William Harper's ("Harper") petition for writ of habeas corpus,
pursuant to 28 U.S.C. § 2254. Harper filed objections to the findings and
recommendations on October 8, 2015, and so is entitled to de novo review of those
findings and recommendations to which he specifically objects. 28 U.S.C.
§ 636(b )(1 )(C). This Court reviews for clear error those findings and
recommendations to which no party objects. See McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v.
Arn, 474 U.S. 140, 149 (1985). "Clear error exists ifthe Court is left with a

definite and firm conviction that a mistake has been committed." United States v.
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Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
Notwithstanding the above, "[ w]here a petitioner's objections constitute
perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original habeas petition, the
applicable portions of the findings and recommendations will be reviewed for
clear error." Rosling v. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21,
2014) (citations omitted).
Having reviewed Harper's objections and compared the arguments
contained therein to those made in his habeas petition, the Court finds that Harper
fails to articulate any specific objection to Judge Johnston's reasoning, and instead
simply restates the same contentions he made in the petition. Accordingly, the
Court reviews Judge Johnston's findings and recommendations for clear error and,
finding none,
IT IS ORDERED that Judge Johnston's findings and recommendations
(Doc. 6) are ADOPTED IN FULL. Harper's petition for writ of habeas corpus
(Doc. 1) is DISMISSED WITH PREJUDICE. Claims 1, 2, 3, and 4 are
DISMISSED for lack of jurisdiction. Claim 5 is DENIED for lack of merit. The
first part of Claim 6 pertaining to untimely receipt of the written judgment is
DISMISSED for lack of jurisdiction. The second part of Claim 6 is DENIED for
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lack of merit. Claim 7 is DENIED for lack of merit.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by separate
document a judgment of dismissal.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
DATED this

~day of January, 20

6.

Dana L. Christensen, Chief Judge
United States District Court

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