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)

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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." -1- 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 -2- 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; -3- (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 -4-

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