Nauman v. Warden Green et al

Filing 7

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Certificate of appealability DENIED. Signed by Judge Dana L. Christensen on 3/27/2017. Mailed to Nauman (TAG)

Petitioner,
ORBER
vs.
WARDEN GREE , ATTORNEY
STATE OF
GENERAL OFT
MONTANA,
Respondents.

United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendation o January 30, 2017, recommending dismissal of Petitioner
Brian Nauman's (" auman") application for writ of habeas corpus pursuant to 28
U.S.C. § 2254. Nau an, appearing prose, timely filed objections and is therefore
entitled to de novo r view 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 r commendations to which no party objects. See McDonnell
Douglas Corp. v. C mmodore Bus. Mach., Inc., 656F.2d1309, 1313 (9th Cir.
1981); Thomas v. A n, 474 U.S. 140, 149 (1985). "Clear error exists ifthe Court
is left with a definit and firm conviction that a mistake has been committed."

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United States v. Syr x, 235 F.3d 422, 427 (9th Cir. 2000). Because the parties are
familiar with the fac ual background of this case, it will not be repeated here.
Upon review fthe objections, Nauman argues that the Findings and
Recommendation e by improperly focusing on his 2012 conviction for failure to
register as a sexual ffender, and ignore the primary contention of his petition
which seeks to chall nge the procedural circumstances leading to his 2001
conviction for sexu 1 assault. In his petition, Nauman contends that the state
district court was so ehow deprived of its jurisdiction when the felony matter was
transferred from the ·ustice court. As a result, Nauman asserts, his 2001
conviction was unla ful and the Court should issue a writ of habeas corpus and
release him from in arceration.
Nauman state that Judge Lynch erroneously found that his claim was
barred for lack of ju isdiction because his habeas petition was second or
successive in nature See Burton v. Stewart, 549 U.S. 147, 152-153 (2007)
(describing how de ndants who have previously filed unsuccessful habeas
applications must s ek leave from the appropriate court of appeals before filing a
"second or successi e" petition); see also 28 U.S.C. § 2254(b ). Although it is
difficult to decipher from the objections, Nauman apparently argues that his
petition is not seco d or successive in nature because it raises new claims and
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arguments not raise in previous habeas petitions. The Court disagrees.
As discussed y Judge Lynch, habeas law mandates that once an inmate
files his first habeas etition attacking the legality of his detention, a federal
district court must d smiss any claim raised in a second or successive petition,
even ifthe claim wa not raised in the first petition. 28 U.S.C. § 2244(b)(l).
Instead, before the s cond or successive petition may be filed, the inmate must
seek leave from the ourt of appeals to file the petition in district court. 28 U.S.C.
§ 2244(b)(3). As no ed by Judge Lynch, Nauman has already filed two previous
petitions challengin his 2001 conviction and both were dismissed as time-barred.

See Nauman v. Mon ana, Cause No. CV 05--43-M-DWM-JCL, (D. Mont. Aug.
29, 2007). Thus, be ause Nauman seeks to challenge his 2001 conviction, he must
seek leave from the

inth Circuit Court of Appeals and obtain authorization to file

his habeas petition i this Court.
Accordingly, he Court reviews the remainder of Judge Lynch's Findings
and Recommendati n for clear error and, finding none,
IT IS ORDE

D that:

(1) Judge Ly ch's Findings and Recommendation (Doc. 5) are ADOPTED

IN FULL;
(2) Nauman's Petition (Doc. 1) is DISMISSED for lack of
jurisdiction;
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(3) The Clerk f Court is directed to enter, by separate document, a
judgment of dismiss l; and
e of appealability is DENIED.
~
day of March, 2017.

Dana L. Christensen, Chief Judge
United States District Court

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