Godfrey v. Kirkegard et al

Filing 7

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Petition DISMISSED for lack of jurisdiction. Certificate of appealability DENIED. Signed by Judge Dana L. Christensen on 6/12/2014. Mailed to Godfrey. (TAG, )

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

CV 14-164-M-DLC

TRACEY R. GODFREY,
Petitioner,

ORDER
vs.

FILED

LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,

JUN 12 21114
Clerk, u.s District Court
District Of Montana
Missoula

Respondents.

Petitioner Tracey R. Godfrey, a state prisoner proceeding pro se, has filed
this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Godfrey
is challenging his sentence for sexual assault. This is the second habeas petition
Godfrey has filed.
United States Magistrate Judge Jeremiah Lynch entered findings and
recommendations in this matter on May 20,2014. (Doc. 4.) Judge Lynch
recommends that the Court dismiss this petition as a second or successive
application pursuant to 28 U.S.C. § 2244(b )(2), and deny a certificate of
appealability ("COA"). Godfrey timely objected, preserving his right to de novo
review of the specified findings or recommendations to which he objects.

1

28 U.S.C. § 636(b)(l). The portion of the findings and recommendations not
specifically objected to will be reviewed for clear error. McDonnell Douglas
Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). For

the reasons stated below, the Court adopts Judge Lynch's recommendations in
full. Because the parties are familiar with the procedural and factual background
of this case, it will not be restated here.
This is Godfrey's second petition challenging his sentence for sexual
assault. See Godfrey v. Kirkegard, No. CV 14-27-M-DLC (D. Mont. judgment
entered May 5, 2014). His first petition was denied by this Court and is currently
pending before the Ninth Circuit Court of Appeals. Id.
Godfrey advances two arguments in his objection. (Doc. 6 at 1.) First, he
asserts that the Montana Supreme Court authorized this second petition for a writ
of habeas corpus.' Id. Second, he relies on an exception to dismissal, specifically
the inability to perform due diligence on the factual predicate for the illegality of
his sentence under 28 U.S.C. § 2244(b)(2)(B)(I), due to lack of time and legal
training.

I Although the Montana Supreme Court is an appellate court, 28 U.S.C. § 2244 requires
authorization from the appropriate United States Court of Appeals - here, the Ninth Circuit Court
of Appeals not a state appellate court.

2

Even if these claims were not presented in the prior application, this Court
may not entertain a second habeas petition without authorization from the Ninth
Circuit Court of Appeals. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S.
147, 149 (2007) (per curiam). Because this is an unauthorized second petition, the
Court is precluded from addressing the merits of Godfrey's arguments and will
dismiss this action pursuant to 28 U.S.C.§ 2244(b).
Godfrey does not object to Judge Lynch's recommendation regarding the
COA. Nonetheless, the Court agrees with Judge Lynch that the COA should be
denied because the second petition must be dismissed on procedural grounds.

Gonzalez v. Thaler, _ U.S. _, 132 S. Ct. 641,648 (2012) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).
IT IS ORDERED that:

(1) Judge Lynch's findings and recommendation (Doc. 4) is ADOPTED
in full.
(2) Mr. Godfrey's petition is DISMISSED for lack ofjurisdiction.
(3) The Clerk of Court is instructed to enter a judgment of dismissal in
favor of Respondents and against Petitioner by separate document.
(4) A certificate of appealability is DENIED.

3

Dated this

12-4t day of June, 2014.

Dana L. Christensen, Chief Judge
United States District Court

4