Potter v. Frink et al
Filing
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. Allen Potter's petition for a writ of habeas corpus 1 is DENIED. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 10/18/2012. Mailed to Potter. (TAG, )
INTIIE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
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ALLEN POTTER,
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Petitioner,
vs.
WARDEN SAM LAW, ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
CV II-lSI-M-DWM-JCL
ORDER
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Allen Potter is a prisoner proceeding pro se. He filed a petition for a writ of
habeas corpus, raising several claims. Potter claims that the jury was improperly
instructed, that he should not have been sentenced as a persistent felony offender,
and that his conviction was not supported by sufficient evidence. He also raises
seven other claims based on his counsel's alleged ineffective assistance.
Magistrate Judge Lynch recommends rejecting all of Potter's claims and
denying his petition on the merits. He also recommends denying a certificate of
appealability.
Potter is entitled to a de novo review of the specified fmdings or
recommendations to which he timely objected. 28 U.S.C. § 636(b)(1). But the
portions of Judge Lynch's Findings and Recommendation not specifically
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objected to are reviewed for clear error. McDonnell Douglas corp. v. Commodore
Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.I98 I ). General, conclusory
objections do not warrant de novo review. See Eastman v. Swanson, 2012 WL
2862439 at * 1 (D. Mont. July 11,2012) (citing Cox v. City o/Charleston, S.C.,
250 F. Supp. 2d 582, 585 (D. S.C.2003)).
Potter twice moved to extend the deadline for filing objections, and the
Court granted both of those motions. On September 20, 2012, Potter filed his
objections. Potter, though, does not offer any objections to Judge Lynch's
Findings and Recommendations. He simply parrots arguments that he made in his
petition and supporting materials, which Judge Lynch rejected. He does not
explain how Judge Lynch purportedly erred.
Potter is not entitled to de novo review of Judge Lynch's Findings and
Recommendation. The purpose of objections is not to simply restate arguments
already made and rejected. Rather, the purpose is to explain to the district court
why the magistrate judge's findings and recommendation are incorrect. Potter fails
to do that here. The Court therefore reviews Judge Lynch's decision for clear
error.
The Court finds no clear error in Judge Lynch's Findings and
Recommendations and adopts them in full. Judge Lynch correctly concluded that
Potter's first three claims-i.e., the three claims not alleging ineffective assistance
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of counsel-should be rejected because the Montana Supreme Court decided them
on direct appeal and Potter fails to show that the Supreme Court's decision "was
contrary to, or involved an umeasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States" or that the decision
was "based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 22S4(d)(1), (2).
Judge Lynch also correctly concluded that Potter's ineffective assistance of
counsel claims-which were raised for the first time in post-conviction
proceedings-also fail. Potter does not show that his counsel's conduct fell below
an objective standard of reasonableness and that there is "a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland v. Wash., 466 U.S. 668, 687-88 (1984).
For these reasons, the Court adopts in full Judge Lynch's Findings and
Recommendations. Potter's petition and a certificate of appealability are both
denied.
IT IS ORDERED that Magistrate Judge Lynch's Findings and
Recommendation (doc. 8) is ADOPTED IN FULL.
IT IS FURTIIER ORDERED that Allen Potter's petition for a writ of
habeas corpus (doc. 1) is DENIED.
IT IS FURTIIER ORDERED that the Clerk of Court is directed to enter by
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separate document a judgment in favor ofthe respondents and against Potter.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
Dated this
1K:.
day of
O~~
2012.
Donald W{ olloy, District Judge
United Stat s District Court
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