Smith v. State of Montana

Filing 5

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 1 Petition for Writ of Habeas Corpus filed by Brian Douglas Smith. Petitioner's Motion for Relief from Judgment is DENIED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 9/12/2017. (APP)

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

BRIAN DOUGLAS SMITH,

CV 17-109-M-DLC-JCL

Petitioner,
ORDER
vs.
STATE OF MONTANA,
Respondent.

United States Magistrate Judge Jeremiah C. Lynch entered Findings and
Recommendations in this case on August 16, 2017, denying Petitioner Brian D.
Smith's ("Smith") Motion for Relief from Judgment. Smith timely filed objections
and is therefore entitled to de novo review of the specified findings and
recommendations to which he objects. 28 U.S.C. § 636(b)(l). The portions of the
findings and recommendations not specifically objected to will be reviewed for
clear error. 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). For
the reasons stated below, the Court adopts Judge Lynch's Findings and
Recommendations in full.

-1-

In his objections, Smith focuses on the same issue which formed the basis of
his original petition: that the state district court lost jurisdiction by granting leave
to file an information without first holding an adversarial hearing. Therefore,
Smith reasserts that all subsequent proceedings are void. (Doc. 4 at 2.) Smith's
objections fail to present any new evidence and reiterate the same facts and
arguments already made and properly rejected by Judge Lynch.
Finally, the Court agrees with Judge Lynch's determination that there is no
doubt about either the nature of Smith's claims or this Court's lack of jurisdiction
to hear them. Thus, a certificate of appealability is not warranted.
Accordingly, IT IS ORDERED that Judge Lynch's Findings and
Recommendations (Doc. 3) is ADOPTED IN FULL. Petitioner's Motion for
Relief from Judgment is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
DATED this 12. -1-~ay of September, 2017.

United States District Court

-2-