Tirey v. Mahoney et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. The Petition and Brief 1 , 2 are DISMISSED WITHOUT PREJUDICE, and a a certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 5/23/2011. Mailed to Tirey. (TAG, )
PATRICK!:. DUFFY, CLERK
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
WARDEN MIKE MAHONEY;
ATTORNEY GENERAL OF
THE STATE OF MONTANA,
Petitioner Tirey, a state prisoner proceeding pro se, filed a motion to
proceed in forma pauperis on March 30, 20 II, with a petition for writ of habeas
corpus under 28 U.S.C. § 2254. Tirey alleged there were four conditions of his
probation. However he does not make clear ifhe is complaining that the
conditions were imposed at his resentencing in 2009 or whether he objects to the
trial court's finding that he violated the conditions. In his brief in support, he also
alleged several instances of ineffective assistance of counsel at the revocation
hearing and on direct appeal. Magistrate Judge Jeremiah C. Lynch entered his
Findings and Recormnendation on April 20, 2011. Judge Lynch found that while
one or two of Tirey's claims may have been fairly presented on direct appeal, most
of his claims allege ineffective assistance of counsel at revocation and on appeal.
No claims of ineffective assistance have been exhausted in the courts of the State
of Montana. Further, Judge Lynch found that Tirey may still file a postconviction
petition in the trial court. Tirey has not done so, nor has he appealed any adverse
decision to the Montana Supreme Court. Because those remedies remain available
to him, he must use them before he proceeds in this Court.
Petitioner Tirey 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 Cw. v. Commodore Bus.
Mach., Inc., 656 F .2d 1309, 1313 (9th Clr. 1981). Clear error exists if the Court is
left with a "definite and firm conviction that a mistake has been cormnitted."
United States v. Syrax, 235 F.3d 422,427 (9th Cir. 2000). I can find no clear error
with Judge Lynch's recormnendation (dkt #6) and therefore adopt it in full.
Accordingly, IT IS HEREBY ORDERED that the Petition and Brief (dkts
#1,2) are DISMISSED WITHOUT PREJUDICE. The Clerk of Court is directed
to enter by separate document a judgment of dismissal.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
J:!I~ of May, 2011.
Donald W. M oy, District Judge
United Statei'D strict Court
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