Griffin v. Commander Smith et al

Filing 5

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Griffin's petition is DISMISSED WITHOUT PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 11/25/2014. Mailed to Griffin. (TAG, )

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

NOV 2 5 2014
Clerk, u.s. District Court
District Of Montana
Missoula

CV 14-256-M-DLC

ROBERT H. GRIFFIN,
Petitioner,

ORDER

vs.
COMMANDER SMITH, WARDEN;
ATTORNEY GENERAL OF THE
STATE OF MONTANA,
Respondents.
United States Magistrate Judge Jeremiah C. Lynch entered his findings and
recommendations on October 23, 2014, recommending that Petitioner Griffin's
action pursuant to 28 U.S.C. § 2254 be dismissed without prejudice for failure to
exhaust state judicial remedies. Griffin failed to timely object to the findings and
recommendations, and so waived the right to de novo review of the record. 28
U.S.C. § 636(b)(1). The Court will therefore review the record for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313

(9th Cir. 1981). The Court adopts Judge Lynch's findings and recommendations
in full.
Griffin, who is detained pending trial in state court, filed this habeas petition

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challenging both the factual basis of his detention and the course of proceedings in
his case thus far. Petitioner must exhaust his state judicial remedies before he
brings his habeas action in federal court. Rose v. Lundy, 455 U.S. 509, 520

(1981); Slack v. McDaniel, 529 U.S. 473, 485-486 (2000). As reasonable jurists
would not disagree that Griffin has failed to exhaust his state remedies, a
certificate of appealability is inappropriate in this case. Gonzalez v. Thaler, 132
S.Ct. 641, 648 (2012).
IT IS ORDERED that Judge Lynch's findings and recommendations
(Doc. 4) are ADOPTED IN FULL. Griffin's petition is DISMISSED WITHOUT
PREJUDICE. A certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court enter, by separate
document, a judgment of DISMISSAL, and CLOSE this case .
DATED this

.¥h
2'!7 day ofNovemberrO 14.

Jm(.~

Dana L. Christensen, Chief Judge
United States District Court

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