Mitchell v. Attorney General of the State of Montana

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 in full. The petition is DISMISSED WITH PREJUDICE. A certificate ofappealability is DENIED. Signed by Judge Donald W. Molloy on 9/25/2013. Mailed to Mitchell. (TAG, )

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

CURTIS MITCHELL,

FILED

SEP 25 2013
Clerk, u.s. District Court
District Of Montana
Missoula

CV 13-60-M-DWM-JCL

Petitioner,

vs.

ORDER

WARDEN SAM LAW and the

ATTORNEY GENERAL OF THE

STATE OF MONTANA,

Respondent.

This action was filed in the United States District Court for the District of
Montana, Missoula Division March 18,2013. Petitioner Curtis Mitchell seeks a
writ of habeas corpus under 28 U.S.C. § 2254. United States Magistrate Judge
Jeremiah C. Lynch filed Findings and a Recommendation on July 31, 2013.
Pursuant to 28 U.S.C. § 636(b)(1), objections to the Findings and
Recommendation entered by Judge Lynch were due by August 19,2013. No
objections were filed.
The Court reviews the findings and recommendation of a United States
Magistrate Judge for clear error. McDonnell Douglas Corp. v. Commodore Bus.
Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error is present only 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).
After a review of Judge Lynch's Findings and Recommendation, I find no
clear error. Petitioner seeks a writ of habeas corpus on the grounds that his right
to due process was violated at trial before the Montana Fourth Judicial District
Court, where he was convicted of aggravated assault, a violation of Montana Code
Annotated § 45-5-202. Petitioner's claims are procedurally defaulted because they
were not raised on direct review. When advised of the status of his claims as
procedurally defaulted, Mr. Mitchell did not show cause for setting aside his
default.
Based on the foregoing, IT IS ORDERED that Judge Lynch's Findings and
Recommendations (doc. 7) are ADOPTED IN FULL. The petition is DISMISSED
WITH PREJUDICE, as all claims are procedurally defaulted without excuse.
IT IS FURTHER ORDERED a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by a
separate document judgment in favor of Respondents and against Petitioner and
shall close this case.
DATED this

j~ay of September, 2013.

/
Hoy, District Judge
istrict Court