Wilson v. State of Montana et al

Filing 8

ORDER adopting Findings and Recommendations 7 in full. Habeas petition 1 and supplements ( 3 -6) are DISMISSED WITHOUT PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 2/18/2016. Mailed to Wilson. (TAG, )

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FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION RAY DEAN WILSON, FEB 1 8 2016 Clerk, U.S. District Court District Of Montana Missoula CV 15-110-H-DLC-JTJ Petitioner, ORDER vs. STATE OF MONTANA, COUNTY ATTORNEY, SECOND JUDICIAL COURT, MARKE. CLAY, and HEALTH DEPARTMENT, Respondents. United States Magistrate Judge John T. Johnston entered an order, findings, and recommendations in this case on January 25, 2016, granting Petitioner Ray Dean Wilson's ("Wilson") motion to proceed informa pauperis, but recommending that his petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, be dismissed without prejudice for failure to exhaust state remedies. Wilson did not object to the findings and recommendations, and so waived the right to de nova review of the record. 28 U.S.C. § 636(b)(l)(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 -1- 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) (citations omitted). Having reviewed the findings and recommendations, the Court finds no clear error in Judge Johnston's conclusion that habeas relief is unavailable to Wilson in light of the ongoing nature of his state criminal proceedings. Accordingly, IT IS ORDERED that Judge Johnston's findings and recommendations (Doc. 7) are ADOPTED IN FULL. Wilson's habeas petition (Doc. 1) and supplements (Docs. 3-6) are DISMISSED WITHOUT PREJUDICE. 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 February, 016. \i; Dana L. Christensen, Chief Judge United States District Court -2-

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