Kelly v. Kirkegard et al

Filing 36

ORDER adopting 34 Findings and Recommendations in full. Petition for Writ of HabeasCorpus ( 1 , 20 ) DENIED and DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 9/25/2015. (TAG, )

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

SEP 2 5 2015
Clerk, U.S District Court
District Of Montana
Missoula

CV 13-84-M-DWM

GYMEKELLY,
Petitioner,

ORDER
vs.
LEROY KIRKEGARD and ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

Gyme Kelly is a state prisoner who is now represented by court-appointed
counsel. He petitions this Court for a writ of habeas corpus under 28 U.S.C. §
2254. Magistrate Judge Jeremiah Lynch recommends denying the petition on the
merits. (Doc. 34.) Kelly timely filed written objections to Judge Lynch's findings
and recommendations. (Doc. 35.)
Kelly is entitled to de novo review of the specified findings or
recommendations to which he objects. 28 U.S.C. § 636(b)(1); McDonnell

Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.
1981 ). Where there is no objection, the court is to give the level of consideration

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it deems appropriate. See Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not
appear that Congress intended to require district court review of a magistrate's
factual or legal conclusions, under a de novo or any other standard, when neither
party objects to those findings."). This Court reviews for clear error. Clear error
exists if the court is left with a "definite and firm conviction that a mistake has
been committed." Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers
Pension Trust for S. Cal., Inc., 508 U.S. 602, 623 (1993) (internal quotation marks
omitted).
Kelly maintains that the findings "ignored, overlooked, and disregarded
many important facts alleged in support of [his] petitions." (Doc. 35 at 1.) A
thorough review of the record, however, shows that although Kelly alleges
numerous facts in support of his petitions, there is no evidence to support his
allegations. Instead, the record demonstrates that plea negotiations occurred, that
at least one offer (and perhaps three) was made and communicated to Kelly, that
Kelly rejected it, and that Kelly did not express any concern about the plea
bargaining at his change of plea hearing. (Docs. 9-9 at 4-7; 9-12 at 7-9; 20-2 at
3.) Additionally, the absence of any reference to a plea agreement in Kelly's
counsel's file does not establish the existence of a plea offer. (See Doc. 20-2.)
Kelly has failed to present clear and convincing evidence to prevail on the merits.
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28 U.S.C. § 2254(e).
Kelly argues that he is entitled to an evidentiary hearing. A hearing is not
required because the issues can be decided by reference to the state court record
and "the record refutes" Kelly's factual allegations. Schriro v. Landigan, 550 U.S.
465, 474 (2007). Moreover, Kelly's allegations, if proven, would not entitle him
to federal habeas relief because he has failed to set forth sufficient facts
demonstrating a violation under Strickland v. Washington, 466 U.S. 668 (1984).
Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir. 2010).
Kelly argues a certificate of appealability should be granted because he has
"made a substantial showing that he was deprived of his constitution[all right to
effective assistance of counsel." (Doc. 35 at 6.) Due to the vague allegations and
sheer lack of evidence supporting his allegations, "jurists of reason could not
disagree" with the Court's decision. Miller-El v. Cockrell, 537 U.S. 322, 327
(2003).
The Court finds no clear error with the remaining findings and analysis.
Accordingly, IT IS ORDERED that the Findings and Recommendations
(Doc. 34) is ADOPTED IN FULL. Gyme Kelly's Petition for Writ of Habeas
Corpus (Docs. 1, 20) is DENIED and DISMISSED WITH PREJUDICE; his
claims are without merit.
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IT IS FURTHER ORDERED that the Clerk of Court is directed to enter, by
separate document, a judgment of dismissal.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
~

Dated this

J-$ day of September, 2015.

olloy, District Judge
District Court

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