McClanahan v. Attorney General of the State of Montana

Filing 29

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 27 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, )

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FILED JUl 1 2 2012 PATRICK E. DUFFY. CLERK BY.""'DE""PU""'T""Y""'CLC::::ER=K:-:. ""IS""S""OU"""LA-:-­ M IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION ) ) ) ) ) ) ) ) ) ) ) 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 -------------------------) 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 -1­ -- - - - - - - - - - - - - - - - - - - - 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 -2­ 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 -3­

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