Weller v. Fletcher et al

Filing 5

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Motion 1 DENIED. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 6/21/2017. Mailed to Weller. (TAG)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
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HELENA DIVISION
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SHAWN HOWARD WELLER,

CV 17-59-H-DLC-JTJ

Petitioner,
vs.

ORDER

MICHAEL FLETCHER, ATTORNEY
GENERALOFTHESTATEOF
MONTANA,
Respondents.
United States Magistrate Judge John Johnston entered his Findings and
Recommendation on May 30, 2017, recommending denial of Petitioner Shawn
Howard Weller's ("Weller") motion for extension to file his petition for writ of
habeas corpus. Judge Johnston also recommends dismissal of this matter without
prejudice. Weller has failed to timely object to the Findings and
Recommendation, and, as a result, has waived his right to de novo 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 exists if the Court is left
with a "definite and firm conviction that a mistake has been committed." United
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States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).
Having reviewed the Findings and Recommendation, the Court finds no
clear error in Judge Johnston's conclusion that Weller's motion should be denied
and the matter dismissed. The Court agrees with Judge Johnston that granting the
motion would be improper because Weller has not yet filed a petition for writ of
habeas corpus and, thus, this matter should be dismissed because no case or
controversy is currently at bar. U.S. Const. art. III, § 2.
Accordingly, there being no clear error in Judge Johnston's Findings and
Recommendation, IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendation (Doc. 4) are
ADOPTED IN FULL.
(2) Weller's Motion for 45 Days Extension (Doc. 1) is DENIED
and this matter is DISMISSED without prejudice.
(3) The Clerk of Court is directed to enter, by separate document, a
judgment in favor of Respondents and against Petitioner.
(4) A certificate of appealability is DENIED.
Dated this

2...l $1-day of June, 2017.

Dana L. Christensen, Chief Judge
United States District Court

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