Roedel v. State of Montana
Filing
6
ORDER adopting Findings and Recommendations 3 in full. The petition for writ of error coram nobis 1 is DISMISSED for lack of jurisdiction. A certificate of appealability is DENIED. Any appeal would not be taken in good faith. Signed by Judge Dana L. Christensen on 6/11/2014. Mailed to Roedel. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
LA WRENCE ROEDEL,
CV 14-160-M-DLC
Petitioner,
ORDER
vs.
STATE OF MONTANA,
Respondent.
FILED
JlIN 11 2014
Clerk, u.s District Court
District Of Montana
Missoula
Petitioner Lawrence Roedel filed this action on May 16, 2014, seeking a
writ of error coram nobis. Roedel is a state prisoner proceeding pre se.
On May 20,2014, United States Magistrate Judge Jeremiah C. Lynch issued
his Findings and Recommendation, in which he recommended the Court dismiss
the petition for lack ofjurisdiction. (Doc. 3.) Roedel did not timely object to the
Findings and Recommendation, and so has waived his right to de novo review.
28 U.S.C. § 636(b)(1). The Court will review the Findings and Recommendation
for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656
F.2d 1309,1313 (9th Cir. 1981). Clear error exists 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).
Judge Lynch found that because Roedel was not tried or convicted by this
Court, coram nobis relief is not available, and the petition must be dismissed for
lack ofjurisdiction. Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.
1987) ("the coram nobis writ allows a court to vacate its judgment for errors of
fact"). Judge Lynch also determined that to the extent Roedel argues that his
petition for a writ of habeas corpus should be reopened, such action is foreclosed
because it would amount to a second petition that the Ninth Circuit has not
authorized as required by 28 U.S.C. § 2244(b).
The Court agrees with Judge Lynch in all respects, and finds no clear error
in his Findings and Recommendation.) Accordingly,
IT IS ORDERED that:
(1) Judge Lynch's Findings and Recommendation (Doc. 3) is ADOPTED
IN FULL.
(2) The petition for writ of error coram nobis (Doc. 1) is DISMISSED for
lack of jurisdiction.
The Court notes a minor typographical error in Judge Lynch's Findings and
Recommendation. Item "3" under the "Recommendation" section includes a reference to Fed. R.
Civ. P. 24, when in fact Fed. R. App. P. 24 governs certification that an appeal would not be
taken in good faith. The Court incorporates the proper standard into its order on that issue.
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(3) The Clerk of Court is directed to enter judgment in favor of the
Respondent and close this case.
(4) The Court CERTIFIES, pursuant to Fed. R. App. P. 24, that any
appeal from its disposition would not be taken in good faith.
(5)
A certificate of appealability is DENIED.
Dated this
~daY ofJune, 2014.
Dana L. Christensen, Chief Ju ge
United States District Court
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