Lawrence v. Kirkegard et al

Filing 11

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 in full. Petition for writ of habeas corpus 1 is DISMISSED without prejudice. Pending motions ( 2 , 3 , 4 , 5 , 6 , 9 , and 10 ) are DENIED as moot. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 11/9/2015. Mailed to Lawrence. (TAG, )

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

CV 15-83-M-DLC-JCL

JOSEPH EDWARD LAWRENCE,
Petitioner,

ORDER
vs.
STATE OF MONTANA,
Respondent.

Petitioner Joseph Edward Lawrence ("Lawrence") filed a Petition for Writ
of Habeas Corpus challenging his conviction for sexual intercourse without
consent. United States Magistrate Judge Jeremiah C. Lynch entered his findings
and recommendations on July 10, 2015, recommending that Lawrence's petition
be denied because he failed to exhaust all available state judicial remedies. Judge
Lynch based this determination on the fact that Lawrence has a direct appeal
currently pending before the Montana Supreme Court. See State v. Lawrence, No.
DA 14-0720.
Lawrence did not file objections to Judge Lynch's findings and
recommendation and instead filed a "response" stating that he "will allow [the]

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State Appeal to continue on its course for the time being." (Doc. 7). Because
Lawrence did not object to Judge Lynch's findings and recommendations
regarding his petition, he has thus waived his 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.
Upon review of the Montana Supreme Court register, the Court notes that
Lawrence's direct appeal to his conviction is still ongoing. See State v. Lawrence,
No. DA 14-0720. It is thus clear that Lawrence has yet to exhaust all available
state judicial remedies, which is required before a court may hear a petition for
writ of habeas corpus. 28 U.S.C. § 2254(b)(l)(A). As such, Lawrence's petition
will be dismissed without prejudice. Lawrence may refile his petition at the
conclusion of his direct appeal before the Montana Supreme Court. Additionally,
Lawrence has filed seven motions in this matter. However, because Lawrence's
underlying petition will be dismissed, these motions will be denied as moot.
Accordingly, IT IS ORDERED that:
(1) Judge Lynch's findings and recommendations (Doc. 7) are ADOPTED
IN FULL.
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(2) Lawrence's petition for writ of habeas corpus (Doc. 1) is DISMISSED
without prejudice for failing to exhaust state remedies.
(3) All pending motions (Docs. 2, 3, 4, 5, 6, 9, and 10) are DENIED as
moot.
(4) The Clerk of Court is directed to enter, by separate document, a
judgment of dismissal.
(5) A certificate of appealability is DENIED.

J'1

Dated this _i_ day of October, 20

.

Dana L. Christensen, Chief Judge
United States District Court

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