Maier v. Mahoney

Filing 28

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. ; granting 16 Motion to Dismiss; adopting Findings and Recommendations re 27 Findings and Recommendations; FURTHER ORDERED that a certificate of appealability is DENIED. The Clerk is directed to enter, by separate document, a judgment of dismissal without prejudice. (hard copy to Maier) Signed by Judge Donald W. Molloy on 2/3/2012. (CDH, )

FILED

FEB 032012
PATR/CI( E. DUFFY, CLERI'(

BY.

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DEPUTY CLERK M1SSOUU'

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

LLOYD SCOTT MAIER,

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Petitioner,
vs.
WARDEN MIKE MAHONEY;
ATTORNEY GENERAL OF
THE STATE OF MONTANA,
Respondents.

CV 11-84-M-DWM-JCL

ORDER

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Petitioner Lloyd Scott Maier filed this action for a writ of habeas corpus
pursuant to 28 U.S.c. § 2254, challenging the Board ofPardons and Parole's
decision denying him clemency. Respondents ("the State") moved to dismiss the
petition on October 26,2011, for failure to exhaust. United States Magistrate
Judge Jeremiah C. Lynch entered Findings and Recommendation on January 5,

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2012 and recommended granting the State's motion to dismiss and dismissing
Maier's petition for failure to exhaust state remedies. Petitioner did not timely
object to the Findings and Recommendation, and so has waived the right to de
novo review of the record. 28 U.S.c. § 636(b)(I). This Court will review the
Findings and Recommendation for clear error. McDonnell Douglas COIl'. 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 FJd 422, 427 (9th Cir. 2000).
Judge Lynch found that merely alleging various federal constitutional
violations in the same document with the facts underlying the federal claim is not
enough; a state prisoner must "fairly present" to the Montana Supreme Court his
claim that a specific set of facts violates a specific federal right. After a review of
Judge Lynch's Findings and Recommendation, I find no clear error. Accordingly,
IT IS HEREBY ORDERED that Judge Lynch's Findings and
Recommendation (dkt #27) are adopted in full. Respondents' Motion to Dismiss
(dkt #16) is GRANTED. Maier's Petition (dkt #1) is DISMISSED WITHOUT
PREJUDICE for failure to exhaust state rememdies.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
The Clerk of Court is directed to enter, by separate document, a judgment of
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dismissal without pr~~ice.

Dated this .!i:day of February, 2012.

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Unite
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olloy, District Judge
District Court