Nesdale v. Mahoney
Filing
7
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. The Amended Petition 4 is DISMISSED WITHOUT PREJUDICE; a certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 4/29/2011. Mailed to Nesdale. (TAG, )
FILED
APR 2 9 2011
PATRICK E. DUFFY, CLERK
By
"'oe""ptj"'TY;v;;Cc-.LE"'R;;-K.""'",""ISSQUlA=;-:-
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
TIMOTHY T. NESDALE,
Petitioner,
CV 11-33-M-DWM-JCL
)
)
)
)
)
vs.
ORDER
)
MIKE MAHONEY,
)
)
Respondent.
)
-------------------)
Petitioner Nesdale filed a letter on February 7, 2011, and after the Court's
direction, filed an Amended Petition on March 11, 2011. Nesdale alleged that the
State breached the plea agreement and the trial court altered his sentence after it
had been pronounced. Magistrate Judge Jeremiah C. Lynch entered his Findings
and Recommendation on March 21, 2011. Judge Lynch found there are state
remedies that remain available to Nesdale, ifhe acts promptly. Further, Judge
1
Lynch found that because Nesdale has not even attempted to present his claims in
state court, there is no good cause to stay this case while he litigates his claims
there.
Petitioner Nesdale did not timely object and so has waived the right to de
novo review of the record. 28 U.S.C. § 636(b)(1). This Court reviews the
Findings and Recommendation for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Mach .. Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error
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). I
can find no clear error with Judge Lynch's recommendation (dkt #6) and therefore
adopt it in full.
Accordingly, IT IS HEREBY ORDERED that the Amended Petition (dkt
#4) is DISMISSED WITHOUT PREJUDICE. The Clerk of Court is directed to
enter by separate document a judgment of dismissal.
IT IS
FURTHE~RDERED
that a certificate of appealability is DENIED.
Dated thistl1day of April, 2011.
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