Adams v. Fox et al

Filing 10

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Petition for writ of habeas corpus 1 is DENIED. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 1/12/2017. Mailed to Adams. (TAG)

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

FILED
JAN 12 2017
Cle~. l:J.S. District Court

01stnct_Of Montana
Missoula

LARRY DEWAYNE ADAMS

CV 16-144-M-DLC-JCL

Petitioner,
ORDER
vs.
TIMOTHY FOX, DOUGLAS FENDER,
Respondents.

United States Magistrate Judge Jeremiah C. Lynch entered Findings and
Recommendations in this case on November 21, 2016, recommending that
Plaintiff Larry Dewayne Adams' ("Adams") petition under 28 U.S.C. § 2254 for
writ of habeas corpus be denied for lack of jurisdiction. Adams timely filed an
objection to the findings and recommendations, and so is entitled to de novo
review of those findings and recommendations to which he specifically objects.
28 U.S.C. § 636(b)(l)(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 (1985). Clear error exists ifthe Court is left with a

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"definite and firm conviction that a mistake has been committed." United States v.
Syra:x:, 235 F .3d 422, 427 (9th Cir. 2000) (citations omitted).

Having reviewed Adams' objections, the Court finds that Adams claims his
constitutional rights have been violated, but does so in a second or successive
petition. Adams previously filed habeas petitions before this Court in 2010 and
2013. However, he argues that because he has presented a showing of actual
innocence and because his arguments rest on new law, his second or successive
petition is warranted. Adams cites to Martinez v. Ryan, 132 S.Ct. 1309 (2012),
and Trevino v. Thaler, 133 S.Ct. 1911 (2013), to support his argument that the
United States Supreme Court has found for ineffective assistance of counsel in
federal habeas petitions such as his, and that these cases are "new law" according
to 28 U.S.C. § 2244(b)(2).
Under 28 U.S.C. § 2244(b)(2), a new claim in a second or successive
petition must be dismissed even if not presented in a prior habeas petition, unless
the claim rests on new law, new evidence, or a petitioner's actual innocence.
However, "[b]efore a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the application." 28
U.S.C. § 2244(b)(3). Thus, even ifthe cases cited by Adams support the narrow
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exception to the second or successive habeas petition bar, a prisoner wishing to
file a successive habeas petition in federal district court must first receive
authorization from the Court of Appeals. Therefore, this Court does not have
jurisdiction until Adams appropriately appeals to the Ninth Circuit Court of
Appeals.
Finally, the Court agrees with Judge Lynch's determination that there is no
doubt this Court lacks jurisdiction and thus a certificate of appealability is not
warranted.
IT IS ORDERED that Judge Lynch's Findings and Recommendations
(Doc. 5) are ADOPTED IN FULL. Adams's petition for writ of habeas corpus
(Doc. 1) is DENIED
IT IS FURTHER ORDERED that the Clerk of Court shall enter by separate
document a judgment of DISMISSAL.
IT IS FURTHER ORDERED that a certificate ofappealability is DENIED.
DATED this

12~day of January, 2

Dana L. Christensen, Chief Judge
United States District Court

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