Roberts v. Frink et al

Filing 11

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 in full. Petition 1 is DENIED. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 6/12/2013. Mailed to Roberts. (TAG, )

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

JUN 12 2013
Clerk, U.S District Court
District Of Montana
Missoula

CV 12-186-M-DLC-JCL

LEONARD ROBERTS,
Petitioner,

ORDER
vs.
MARTIN FINK, Warden, Montana
State Prison; ATTORNEY GENERAL
OF THE STATE OF MONTANA,
Respondents.
United States Magistrate Judge Jeremiah Lynch issued findings and
recommendations to dismiss Petitioner Leonard Roberts' complaint on March 25,
2013. (Doc. 7.) Petitioner timely filed objections and is therefore entitled to de
novo review of the specified findings and recommendations to which he objects.
28 U.S.C. § 636(b)(l). (Doc. 9.) The parties are familiar with the procedural
history of this case, so it will not be repeated here.
Petitioner Roberts' petition alleges his Fifth and Sixth Amendment due
process rights were violated by prosecutorial misconduct, double jeopardy, and
ineffective assistance of counsel. Judge Lynch finds Petitioner Roberts'
prosecutorial misconduct claim to be without merit. Further, Judge Lynch finds

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the Court lacks jurisdiction to consider Mr. Roberts' other claims, which were
brought in his previous federal petition. (Doc. 7.); 28 U.S.C. § 2244(b)(l), (3);
Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam). In his objection to
Judge Lynch's findings and recommendation, Petitioner Roberts repeats his
allegations of prosecutorial misconduct, double jeopardy and ineffective assistance
of counsel. (Doc. 10.) As noted by Judge Lynch, Petitioner Roberts' claim of
prosecutorial misconduct is without merit. Mr. Roberts was responsible for timely
filing his petition in the trial court, not the prosecutor, the Attorney General, or the
trial judge. Mr. Roberts simply filed his petition too late.
Petitioner Roberts correctly points out that Houston v. Lack and State v.
Roullier stand for the proposition that filing occurs once a petition is delivered,
even ifthat petition is mistakenly filed. Houston v. Lack, 487 U.S. 266, 108
(1988); State v. Roullier, 1999 MT 37, 293 Mont. 304, 308. However, this is
irrelevant to Petitioner Roberts' allegations ofprosecutorial misconduct, because
the Attorney General, the prosecutor, and the trial judge have no duty to file a
petition on Mr. Roberts' behalf. Petitioner Roberts fails to allege a violation of
federal law that would constitute prosecutorial misconduct. As such, this claim
should be dismissed. 28 U.S.C. § 2254(a).
Petitioner Roberts' claims of double jeopardy and ineffective assistance of
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counsel were raised in his previous federal petition. Pursuant to 28 U.S.C. §
2244(b)(1 ), (3), this Court lacks jurisdiction to consider those issues.
A certificate of appealability is not warranted, because Petitioner Roberts
has failed to make a "substantial showing ofa constitutional right." 28 U.S.C. §
2253(c)(2). No reasonable jurist could disagree with the district court's resolution
of the constitutional claims or "conclude the issues presented are adequate to
deserve encouragement to further proceed." Miller-El v. Cockrell, 537 U.S. 322,
327 (2003) (citing Slackv. McDaniel, 529 U.S. 473, 484 (2000)). Furthermore,
the procedural and jurisdictional ruling in this case was, without doubt, correct.

Lambright v. Stewart, 220 F.3d 1022, 1026 (9th Cir. 2000) (quoting Slack, 529
U.S. at 484). Accordingly,
IT IS HEREBY ORDERED:
Judge Lynch's findings and recommendations (doc. 7) are ADOPTED in
full. Plaintiff Roberts' Petition (doc. 1) is DENIED. The Clerk of Court is
directed to enter by separate document a judgment of dismissal. A certificate of
appealability is DENIED, because Roberts' claims are without merit.

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Dated this l2--#tday of June 2013.

Dana L. Christensen, Chie Judge
United States District Court

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