Dunsmore v. State of Montana
Filing
35
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 32 in full. Amended petition 5 is DENIED. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 12/20/2016. Mailed to Dunsmore. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
~4(
b~c., ~b
c~~ u
r.sr~ .'5'. v.·
.,Cf "
() <'01~
~· o,,,"!tl"tr..
1
oS'&
'll
'"To -, C
CV 15-95-M-DLC-JC~~ 'IJtqlJ.;,011'1
MICHAEL P. DUNSMORE,
Petitioner,
ORDER
vs.
LEROY KIRKEGARD; ATTORNEY
GENERAL OF STATE OF
MONTANA,
Respondents.
United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendations on October 28, 2016, recommending denial of Petitioner
Michael P. Dunsmore's ("Dunsmore") Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. On November 3, 2016, Dunsmore moved for a 30
day extension from the Court's receipt of his motion to file objections to the
Findings and Recommendations. The Court granted Dunsmore's motion and
allowed until December 5, 2016, to mail his objections. (Doc. 34.) As of the date
of this Order, no objections have been received by the Court. Because Dunsmore
failed to timely object to the Findings and Recommendation, he has waived his
right to de novo review of the record. 28 U.S.C. § 636(b)(l)(C). This Court
reviews for clear error those findings and recommendations to which no party
-1-
objects. See McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 149 (1985). 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)
(citations omitted). The parties are familiar with the facts of this case and they
will not be repeated here.
Having reviewed the Findings and Recommendation, the Court finds that
Judge Lynch did not clearly err in recommending that Dunsmore' s petition be
denied. The Court agrees that: ( 1) Dunsmore' s due process rights were not
violated when Judge Allison did not recuse himself; (2) Dunsmore's constitutional
rights were not violated when he was prevented from speaking at his sentencing;
(3) Dunsmore's claim of ineffective assistance of trial counsel must fail because,
even if he could show that his counsel's performance was deficient, he could not
show that he was prejudiced by it; (4) Dunsmore's claim of ineffective assistance
of appellate counsel is frivolous because charging cases in Montana by
information rather than by grand jury has been found to be constitutional; (5)
Dunsmore' s claim of unlawful imprisonment and involuntary servitude is now
moot because he is no longer in custody; (6) Dunsmore's claim that Montana's
imposition of conditions on sexual offenders is unconstitutional fails to allege a
-2-
claim under 22 U.S.C. § 2254(a); (7) Dunsmore's claim that his Fifth Amendment
rights were violated when he was not indicted by a Grand Jury is frivolous because
the Fifth Amendment has not been incorporated to the states; (8) Dunsmore's
claim that he was coerced into making a plea agreement is not supported by the
facts of this case; (9) Dunsmore's "double jeopardy" argument must fail because it
does not raise a constitutional claim; (10) Dunsmore's claim that he suffered
discrimination when a presentence investigation was ordered for the state and not
the defense must fail because it does not raise a constitutional claim; (11)
Dunsmore' s second claim of ineffective assistance of trial counsel relating to his
medication must fail because it does not establish a federal constitutional
violation; (12) Dunsmore's claim of "structural error" fails because it does not
raise a constitutional claim or has been addressed in previous claims; (13)
Dunsmore's claim that the Montana Supreme Court violated his constitutional
rights by directing him to file a direct appeal does not raise a federal constitutional
violation; (14) Dunsmore's claim that the State of Montana violated its own
prohibition on ex-post facto law affecting contracts when it allegedly amended his
plea agreement fails to raise a federal constitutional violation; (15) Dunsmore's
claim that he was denied access to the courts is not supported by the record; and
(16) Dunsmore's claim that the Montana Supreme Court violated his
constitutional rights by declining to accept future filings fails to raise a federal
-3-
constitutional violation because the right of access may be reasonably restricted
for legitimate state interests.
There being no clear error in Judge Lynch's Findings and
Recommendations, IT IS ORDERED that:
(1) Judge Lynch's Findings and Recommendations (Doc. 32) are
ADOPTED IN FULL.
(2) Dunsmore's amended petition (Doc. 5) is DENIED for lack of merit.
(3) The Clerk of Court is directed to enter, by separate document, a
judgment of dismissal.
(4) A certificate of appealability is DENIED.
""'
Dated this 2-0 day of December, 20
.
Dana L. Christensen, Chief Judge
United States District Court
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?