Funk v. Fox et al

Filing 10

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 3 in full. Petition is DISMISSED. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 5/31/2017. Mailed to Funk (TAG)

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

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KEVIN FUNK,

CV 17-43-M-DLC-JCL

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Petitioner,
ORDER
vs.
TIM FOX, ATTORNEY GENERAL
OF THE STATE OF MONTANA,
Respondent.
United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendations on April 11, 201 7, recommending dismissal of Petitioner Kevin
Funk's ("Funk") application for writ of habeas corpus under 28 U.S.C. § 2254.
Funk, appearing pro se, timely filed an objection and is therefore entitled to de
novo review of those findings and recommendations to which he specifically
objected. 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 (1985). "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). Because the parties are

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familiar with the factual background of this case, it will not be repeated here.
Upon review of Funk's objections and supplemental filings, the Court finds
that he fails to articulate any legal fault with Judge Lynch's conclusion that his
petition should be dismissed for failure to state a cognizable federal habeas claim.
Similar to the claims raised in his petition, Funk's objections and supplemental
filings center on the contention that the disputed property was acquired in a trust
and could not be sold without his permission. Read liberally, Funk argues that his
underlying convictions for criminal mischief and trespass were not justified
because he owned the property in question. However, the Court fails to see how
this could establish a due process violation in the underlying criminal proceeding
or show that he was deprived of a statutory or constitutional right. Indeed, as
discussed by Judge Lynch, Funk's petition essentially attempts to relitigate the
circumstances surrounding the distribution of the disputed lake front property.
These contentions simply fail to raise a cognizable challenge to his current
incarceration.
Accordingly, the Court reviews the remainder of Judge Lynch's Findings
and Recommendations for clear error and, finding none,
IT IS ORDERED that:
(1) Judge Lynch's Findings and Recommendations (Doc. 3) are ADOPTED
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IN FULL;
(2) Funk's Petition (Doc. 1) is DISMISSED for failure to state a claim;
(3) The Clerk of Court is directed to enter, by separate document, a
judgment in favor of Respondents and against Petitioner; and
(4) A certificate of appealability is DENIED.
Dated this ~day of May, 2017.

Dana L. Christensen, Chief Judge
United States District Court

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