Smaage v. Fender et al

Filing 10

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 in full. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 11/28/2017. Mailed to Smaage. (TAG)

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

SHAWN KEVIN SMAAGE,

NOV 2 8 2017
Cieri<., U.S Diltrid Court
District Of Montana

MissOula

CV 17-62-H-DLC-JTJ

Petitioner,
ORDER
vs.
DOUGLAS FENDER; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
United States Magistrate Judge John T. Johnston entered Findings and
Recommendations in this case on October 27, 2017, recommending that Plaintiff
Shawn Kevin Smaage's ("Smaage") petition under 28 U.S.C. § 2254 for writ of
habeas corpus be denied because his claims are not cognizable in federal habeas.
Smaage timely filed an objection to the findings and recommendations, 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
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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 Smaage's objections, the Court finds that his arguments
are duplicative of those made before and properly considered by Judge Johnston.
The State of Montana already acknowledged that an error was made in Smaage's
original 2000 sentence due to a change in the law, and the Montana Supreme
Court remanded his case for resentencing. Thus, he has received the benefit of the
Court's ruling in State v. Gunderson (Gunderson II), 237 P. 3d 74 (Mont. 2010),
where it found that sentences imposed based upon an offender's PFO status
replace the sentence for the underlying felony. Smaage was resentenced to 45
years and one month in prison, with 25 years and one month suspended.
Therefore, the proper procedure in state court was followed and Smaage cannot
now "transform a state law issue into a federal one merely by asserting a violation
of due process." Langford v. Day, 110 F. 3d 1380, 1389 (9th Cir. 1996), cert

denied, 522 U.S. 881 (1997).
Finally, the Court agrees with Judge Johnston's determination that a
certificate of appealability is not warranted.
IT IS ORDERED that Judge Johnston's Findings and Recommendations
(Doc. 7) are ADOPTED IN FULL. Smaage's petition for writ of habeas corpus
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(Doc. 1) is DISMISSED WITH PREJUDICE as his claims are not cognizable in
federal habeas.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by separate
document a judgment in favor of Respondents and against Petitioner.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
DATED this

2~~ay of November, 2017.

Dana L. Christensen, Chief Judge
United States District Court

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