McClanahan v. State of Montana et al

Filing 38

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 36 in full. McClanahan's second, fourth, and sixth claims are DENIED in their entirety. McClanahan's first claim is DENIED as to the statements made to Detective Newlon, and his fifth claim is DENIED as to cases DC-01-422 and CV ll-92-M. Signed by Judge Donald W. Molloy on 7/12/2012. Mailed to McClanahan. (TAG, )

FILED

JUl 1 2 2012
PATRICK E. DUFFY. CLERK
BY.""'DE""PU""'T""Y""'CLC::::ER=K:-:. ""IS""S""OU"""LA-:-­
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

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SHANE McCLANAHAN,
Petitioner,
vs.
WARDEN LEROY KIRKEGARD;
ATTORNEY GENERAL OF THE
STATE OF MONTANA,
Respondents.

CV 11-92-M-DWM-JCL
CV 11-117-M-DWM-JCL

ORDER

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Petitioner Shane McClanahan filed this action for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 on June 21, 2011, in New Mexico where he was in
custody. This matter was then transferred to Montana after the court in New
Mexico determined the challenges were against a Montana judgment. United
States Magistrate Judge Jeremiah C. Lynch entered Findings and

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Recommendation on June 15,2012, and recommended denying McClanahan's
second, fourth, and sixth claims in their entirety. Judge Lynch also recommended
denying McClanahan's first claim as to the statements made to Detective Newlon,
and his fifth claim as to cases DC-O 1-422 and CV 11-92-M. 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)(1). This Court will review the
Findings and Recommendation for clear error. McDonnell Douglas Com. 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).
Judge Lynch stated that although two separate judgments are challenged in
these two actions, they became procedurally entwined during the state
proceedings. Further, Judge Lynch found that McClanahan filed one Amended
Petition without identifying which conviction he was challenging. McClanahan
was transferred from New Mexico back to Montana after he filed the petition.
Following a detailed background of the issues and an analysis of the claims, Judge
Lynch determined that McClanahan is not entitled to relief on the merits as to
some of his claims. As to other claims, Judge Lynch ordered the State to file an
Answer to determine if they will be barred on procedural grounds. After a review
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of Judge Lynch's Findings and Recommendations I find no clear error.
Accordingly,
IT IS HEREBY ORDERED that Judge Lynch's Findings and
Recommendations (doc. 36) in CV ll-92-M and (doc. 27) in CV ll-117-M are
adopted in full. McClanahan's second, fourth, and sixth claims are DENIED in
their entirety. McClanahan's first claim is DENIED as to the statements made to
Detective Newlon, and his fifth claim is DENIED as to cases DC-01-422 and CV
ll-92-M.
L..

Dated this --L2-day of July, 2012.

. Mo oy, District Judge
tates D trict Court

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