Hussar v. Rieghard et al

Filing 7

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 3 Findings and Recommendations, Terminate Motions. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 8/31/2017. Mailed to Hussar. (TAG)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION CV 17-77-H-DLC-JTJ WAYNE A. HUSSAR, II, Petitioner, ORDER vs. MATT RIEGHARD, LEO GALLAGHER, and JUDGE REYNOLDS, Respondents. United States Magistrate Judge John Johnston entered his Order, Findings and Recommendations on July 17, 2017, recommending dismissal of Petitioner Wayne A. Hussar, H's ("Hussar") petition for writ of habeas corpus under 28 U.S.C. § 2254. Hussar timely filed objections and is therefore 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. -1- Syrax, 235 F .3d 422, 427 (9th Cir. 2000). Because the parties are familiar with the factual background of this case, it will not be repeated here. Having reviewed Hussar's objections, the Court finds that he fails to articulate any specific legal error in Judge Johnston's Findings and Recommendations and, instead, attempts to reiterate his contention that there is newly discovered evidence that would exonerate him. However, as discussed by Judge Johnston, Hussar's legal proceedings in state court are still at their initial stages. Thus, even if Hussar could state a cognizable constitutional claim in this matter, he must first present such a claim to the state authorities. Consequently, because Hussar has failed to exhaust his state law remedies, including extraordinary, direct, and collateral review of his state court matter, his petition must be dismissed. Rose v. Lundy, 455 U.S. 509, 522 (1982) (district courts must dismiss habeas petitions containing unexhausted claims). As such, Hussar's objection is overruled. Accordingly, there being no clear error in the remaining Findings and Recommendations, IT IS ORDERED that: (1) Judge Johnston's Findings and Recommendations (Doc. 3) is ADOPTED IN FULL. (2) The Petition (Doc. 1) is DISMISSED as unexhausted. -2- (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 ~iday of August, 20 . Dana L. Christensen, Chief Ju ge United States District Court -3-

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