Hussar v. Strong

Filing 4

ORDER DISMISSING CASE. Hussar's motion to proceed in forma pauperis 3 is GRANTED. The 1 Petition is DISMISSED as frivolous, and a certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 7/9/2012. Mailed to Hussar. (TAG, )

IN TIlE UNITED STATES DISTRICT

COURTFILED

FOR TIlE DISTRICT OF MONTANA

JUL 09 2012

PArR/CKE
By
. DUFFY, CLERK

MISSOULA DIVISION

WAYNE A. HUSSAR II,

DEPurfcU'RK, MISSOUlA _

Cause No. CV 12-112-M-DLC

Petitioner,
vs.

ORDER DISMISSING PETITION
AND DENYING CERTIFICATE
OF APPEALABILITY

KEITH STRONG,
Respondent.

On June 27, 2012, Petitioner Wayne Hussar moved to proceed in fonna
pauperis with this action for writ of habeas corpus under 28 U.S.C. § 2254. Hussar
is a state prisoner proceeding pro se.
Hussar's petition is frivolous. He complains ofthe recommendations ofUnited
States Magistrate Judge Keith Strong in Hussar v. Touchette, et al., No. CV II-11-H­
DWM-RKS (D. Mont. judgment entered May 6, 20 II), a civil rights action under 42
U.S.C. § 1983. He has also filed a previous habeas action, see Hussar v. Mahoney,
No. CV 11-7-H-DWM-RKS (D. Mont. judgment entered Apr. 18,201 I), concerning
the same allegations that underlay his § 1983 Complaint and the petition currently at
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hand. In both of those cases, Judge Strong's recommendations were reviewed and
adopted by Judge Molloy. In neither ofthose previous cases did Hussar file a notice
of appeal.! He may not challenge the decisions in those cases by filing yet another
action.
Hussar's petition seeks a second review ofJudge Strong's recommendations.
He does not allege that his custody on revocation ofhis probation is unconstitutional
or otherwise in violation of federal law. Therefore, he fails to state a claim under 28
US.C. § 2254(a). Amendment would be futile. 28 US.C. § 2244(b), (c). This action
is dismissed. A certificate of appealability is denied because the petition fails to
make a substantial showing that Hussar was deprived of a constitutional right. 28
US.C. § 2253(c).

Accordingly, IT IS HEREBY ORDERED as follows:
1. Hussar's motion to proceed in forma pauperis (doc. 3) is GRANTED. The
Clerk of Court shall waive payment of the filing fee.
2. Hussar's petition (doc. 1) is DISMISSED as frivolous.
3. A certificate of appealability is DENIED.
4. The Clerk of Court shall, by separate document, enter a judgment of

A court may take judicial notice of its own records. Randv. Rowland, 154 F.3d 952, 961
(9th Cir. 1998) (en bane); United Staten. Wilson, 631 F.2d 118,119 (9th Cir. 1980).
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dismissal.
5. Other than a notice of appeal, Hussar may not file any further documents in
this case. No motions for reconsideration, amendment, or of any other kind will be
entertained. They will be stricken if filed.

-It,
DATED this ~ day of July, 2012.

Dana L. Christensen
United States District Judge

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