Triano v. Attorney General of the State of Montana

Filing 7

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. the Petition 1 is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 6/29/2011. Mailed to Triano. (TAG, )

FILED

JUN 29 2011
PATRICK E. DUFFY, CLERK
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

EBRON JOSIAH TRIANO,

Petitioner,

v.
ATTORNEY GENERAL OF THE
STATE OF MONTANA,
Respondent.

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CV ll-75-M-DWM-JCL

ORDER

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On March 14,2008, Petitioner Triano was sentenced to five years in prison,
with three years suspended, for possession of dangerous drugs. On May 16,2011,
Triano brought this action pursuant to 28 U.S,C. § 2254, challenging his
conviction and sentence. He has not presented his claims to the Montana Supreme
Court.

Judge Lynch ordered Triano to show cause why his petition should not be
dismissed as time barred and procedurally defaulted. In response, Triano filed a
brief arguing he suffered from ineffective assistance of counsel. Judge Lynch
found no extraordinary circumstances prevented him from complying with the
statute of limitations and his failure to first present his claims to the Montana
Supreme Court was unexcused. Accordingly, Judge Lynch recommended the
petition be dismissed with prejudice.
Petitioner Triano did not timely object and so has waived his right to de
novo review ofthe record. ) 28 U.S.C. § 636(b)(1). This Court reviews the
Findings and Recommendation for clear error. MQDonneli Douglas Com. v.
Commodore Bus. Mach., Inc., 656 F .2d 1309, 1313 (9th Cir. 1981). Clear error
exists ifthe 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

lOn June 15,2011, Triano did file notice that he is appealing Judgc Lynch's Findings and
Recommendation to a higher court. Judge Lynch's Recommendation cannot be directly
appealed to the Court of Appeals. To the extent Triano meant to object to Judge Lynch's
Findings and Recommendation, his "notice" provides no detail or explanation as to the contours
of his objection. A party objecting to the findings or recommendations of a magistrate judge
must identify the parts of the magistrate's disposition that the party finds objectionable and
present argument and supporting authority, such that the district court is able to identify the
issues and the reasons supporting a contrary result. It is insufficient for the objecting party to
merely state that he objects. See Hagberg v. Astrue, 2009 WL 3386595 at "I (D. Mont. 2009)
("There is no benefit if the district court[] is required to review the entire matter de novo because
the objecting party merely [states that he objects]."). Accordingly, the Court does not construe
Triano's notice of appeal as an objection meriting de novo review.
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can find no clear error with Judge Lynch's recommendation (dkt #5) and therefore
adopt it in full.
Accordingly, IT IS HEREBY ORDERED that the Petition (dkt #1) is
DISMISSED WITH PREJUDICE. The Clerk of Court is directed to enter by
separate document ajudgment in favor of Respondent and against Petitioner.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.2
Dated this

.Jfl~y of June, 2011.
lloy, District Judge
es istrict Court

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2Petitioner Triano's Notice of Appeal filed on June 15, 2011, does not suffice to appeal
this Order and the entry ofjudgment to the Ninth Circuit Court of Appeals. If Triano intends to
appeal, he must file a subsequent and timely notice of appeal.

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