Chyatte v. Kirkegard et al

Filing 6

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Petition ( 1 , 2 ) is DISMISSED WITHOUT PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 4/14/2016. (TAG, )

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DOUGLAS JOSEPH CHYATTE,

APR 1 ~ 2016
Cler!<. y.s. District Court
Dtstnct Of Montana
Missoula

CV 16-01-M-DLC-JCL

Petitioner,
ORDER
vs.
LEROY KIRKEGARD, et al.,
Respondents.
United States Magistrate Judge Jeremiah C. Lynch entered his Order,
Findings and Recommendation on March 14, 2016, recommending dismissal of
Petitioner Douglas Chyatte's ("Chyatte") application for writ of habeas corpus
under 28 U.S.C. § 2254. Chyatte failed to timely object to the Findings and
Recommendation, and so waived his right to de novo review of the record. 28
U.S.C. § 636(b )(1 )(C). This Court reviews for clear error those findings and
recommendations to which no party 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 (198.5). Clear error exists ifthe 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).
Having reviewed the Findings and Recommendation, the Court agrees with
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SCANNED

Judge Lynch's recommendation that Chyatte's application should be dismissed
without prejudice because his state postconviction proceeding is ongoing. Chyatte
has thus has failed to completely exhaust the state remedies available to him and
should refile his application, if necessary, upon the conclusion of his state court
proceeding.
There being no clear error in Judge Lynch's Findings and Recommendation,
IT IS ORDERED that:
(1) Judge Lynch's Findings and Recommendation (Doc. 5) are ADOPTED

IN FULL.
(2) Chyatte's petition (Docs. 1, 2) is DISMISSED WITHOUT
PREJUDICE for failure to exhaust state remedies.
(3) The Clerk of Court is directed to enter by separate document a judgment
of dismissal.
(4) A certificate of appealability is D

Dated this

I

4~ay of April, 2016.
Dana L. Christensen, Chief Judge
United States District Court

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