Payne v. Frink et al

Filing 30

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 27 in full. The Petition 1 is DISMISSED; a certificate of appealability is GRANTED. Signed by Judge Donald W. Molloy on 8/29/2011. Mailed to Payne. (TAG, )

FILED

IN THE UNITED STATES DISTRICT COURT

AUG 292011
FOR THE DISTRICT OF MONT ANA
MISSOULA DIVISION
TYRONE EVERETT PAYNE,

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Petitioner,
vs.
WARDEN NUKE MAHONEY;
ATTORNEY GENERAL OF
THE STATE OF MONTANA,
Respondent.

PATRICK E. DUFFY, CLERK
By
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DEPUTY CLERK, MISSOUlA

CV 11-42-M-DWM-JCL

ORDER

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Petitioner Tyrone Payne applied for a writ of habeas corpus under 28 U.S.C.
§ 2254. Payne is a state prisoner proceeding pro se. United States Magistrate
Judge Jeremiah C. Lynch entered Findings and Recommendation in this matter on
June 29, 2011. He recommended dismissing Payne's petition as procedurally
defaulted because he did not cite federal authority in support of the claim on direct
appeal. July 6, 2011, Parish filed objections. Therefore, he is entitled to de novo
review of those portions of the Findings and Recommendation to which he
objected. 28 U.S.C. § 636(b)(1). The portions of the Findings and
Recommendation not specifically objected to will be reviewed for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach .. Inc., 656 F.2d 1309, 1313
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(9th Cir. 1981).
Payne's claim regarding the sufficiency of the evidence was not fairly
presented to the State Court because Payne cited no federal law to support the
argument on direct appeal. Therefore, the claim is procedurally defaulted.
Responding to an order to show cause as to why the petition should not be
dismissed, Payne explained that neither he nor his counsel knew about the
authorities on which he now relies. Counsel's ineffectiveness may excuse a
procedural default if the ineffectiveness rises to a constitutional violation.
Edwards v. Carpenter, 529 U.S. 452, 451 (2000). However, principles of comity
require that a claim of ineffective assistance be raised in "state court as an
independent claim before it may be used to establish cause for a procedural
default." Id. at 451.
Payne's petition is procedurally defaulted. Before the procedural default
can be excused on the basis of ineffective assistance of counsel, Payne must raise
the issue in the state court. In his objections, Payne disclaims an ineffective
assistance claim. However, this neither cures the procedural default, nor does it
relieve him of an obligation to first present the claim in state court before using it
in federal court. None of his other objections address Judge Lynch's conclusion
that the petition should be dismissed as procedurally defaulted. I find no clear
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error in Judge Lynch's remaining findings and recommendation. Accordingly,
IT IS HEREBY ORDERED that Judge Lynch's Findings and
Recommendation (dkt # 27) are adopted in fulL The Petition (dkt # 1) is
DISMISSED.
The Clerk of Court is directed to close this matter and to enter by separate
document a judgment in favor of Respondents and against Petitioner.
A certificate of appealability is GRANTED

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Dated this~ day of August, 2011.

, District Judge
ict Court

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