Martin v. Frink et al

Filing 6

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 3 in full. James Martin's petition for writ of habeas corpus 1 is DENIED. Signed by Judge Donald W. Molloy on 9/20/2013. Mailed to Martin. (TAG, )

IN THE UNITED STATES DISTRICT COl.TRT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

JAMES GENE MARTIN,

CV 13-173-M-DWM-JCL

Petitioner,
ORDER

vs.
MARTIN FRINK, Warden; Attorney
General of the State of Montana,
Respondents.

James Gene Martin is a state prisoner proceeding pro se. He petitions this
Court for a writ of habeas corpus under 28 U.S.C. § 2254, alleging the state court
judge presiding over his case violated his Fourteenth, Sixth, and Thirteenth
Amendment rights by improperly playing a role in both the accusatory and judicial
processes. Magistrate Judge Lynch recommends denying the petition.
Martin objected to the Findings and Recommendation on September 9,
2013, and is therefore entitled to de novo review of the specified findings or
recommendations to which he objects. 28 U.S.C. § 636(b)(1). Despite Martin's
objections, I agree with Judge Lynch's analysis and conclusion, expanding only

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briefly on the nature of Martin's argument. Because the parties are familiar with
the factual and procedural background, it will not be restated here.
Martin contends that the Magistrate Judge Lynch's Findings and
Recommendation incorrectly characterize his argument and he raises objections to
the findings that: (1) his claim is frivolous, (2) his claim lacks merit, and (3) he
failed to make a substantial showing of the denial of a constitutional right. Martin
maintains that his constitutional rights were violated when the state judge
performed the allegedly incompatible accusatory and judicial roles of granting the
Indictment and presiding over his case.
As noted by Magistrate Judge Lynch, prosecution or indictment by
information is consistent with the federal guarantee of due process. Hurtado v.

Cal., 110 U.S. 516, 538 (1884). Martin's position is that the judge's role in that
process makes him biased, a contention rejected by the Court in Hurtado.
Furthermore, Martin's reliance on In re Murchison is unconvincing, as it does not
apply to the facts of this case. 349 U.S. 133, 136-37 (1955) (focusing on the
unique prosecutorial nature of a "one man grand jury" investigation and the fact
that the judge in that instance testified to his own personal knowledge of the
offense). Crater v. Galza, also relied upon by Martin, further demonstrates the
very limited application of the "accusatory role" analysis. 491 F.3d 1119, 1132
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(9th Cir. 2007) (finding no suggestion of bias and that the judge did not perform
incompatible accusatory and judicial roles).
Based on the foregoing, this Court finds Martin's claim to be frivolous and
without merit. Furthermore, Martin has failed to make a substantial showing of
the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), so the Court denies
him a certificate of appealability.
IT IS ORDERED that the Findings and Recommendation (doc. 3) is
ADOPTED IN FULL. James Martin's petition for writ of habeas corpus (doc. 1)
is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter by
separate document a judgment in favor of Respondents and against Petitioner.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
Dated thlsc1itday of September 2013.

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