Wilcock v. Frink et al

Filing 9

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Wilcock's petition 1 is DISMISSED. The Court certifies that any appeal would not be taken in good faith. Signed by Judge Donald W. Molloy on 1/4/2012. Mailed to Wilcock. (TAG, )

FILED

JAN 0 ~ 2012

IN THE UNITED STATES DISTRICT COURT

PATRICK E, DUFFY. CLERK

FOR THE DISTRICT OF MONTANA

By

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DEPUTY CLERK, MISSOULA

MISSOULA DMSION

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ERNEST BRENT WILCOCK,
Petitioner,
vs.
MARTINL. FRINK, Warden;
STATE OF MONTANA,
Respondents.

CV 11-152-M-DWM-JCL

ORDER

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Petitioner Ernest Wilcock filed a petition for writ of habeas corpus with this
court on November 17, 2011. (Dkt # 1.) On November 21, United States
Magistrate Judge Jeremiah C. Lynch entered Findings and Recommendations.

(Okt # 5.) He recommended dismissing Wilcock's petition for lack ofjurisdiction
under 28 U.S.C. § 2244(b)(2). Wilcock timely filed objections (dkt # 8) and is
therefore entitled to de novo review ofthe record. 28 U.S.C. § 636 (b)(1).
The instant petition is Wilcock's second in this court with respect to his
1998 conviction for sexual intercourse without consent. His previous petition was
denied on the merits on August] 6, 2006. Because Wilcock is challenging the
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same conviction previously addressed, this Court lacks jurisdiction to even
consider his petition without an order authorizing it to do so from the Ninth
Circuit Court of Appeals. 28 U.S.C. § 2244(bX3XA); Burton y. Stewart. 549 U.S.
147 (2007). Wilcock raises no arguments that address this clear and total bar to
jurisdiction. Accordingly, the Court finds no basis for jurisdiction and adopts
Judge Lynch's Findings and Recommendations in full.

IT IS HEREBY ORDERED:
1. Judge Lynch's Findings and Recommendation (dkt # 5) are adopted in

full.
2. Wilcock's petition (dkt # 1) is DISMISSED for lack of federal
jurisdiction.
4. The Clerk of Court is directed to enter ajudgment of dismissal.
5. The Clerk of Court is further directed to have the docket reflect that the
Court certifies pursuant to Rule 24(aX3)(A) of the Federal Rules of Appellate
Procedure that any appeal of this decision would not be taken in good faith.
DATED this

KL-day ofJanuary, 2012.
. Mol oy, District Judge
tates D trict Court
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