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Dunsmore v. Kirkegard

United States District Court, D. Montana, Helena Division

February 9, 2015

MICHAEL P. DUNSMORE, Petitioner,
v.
LEROY KIRKEGARD, et al., Respondents.

ORDER

DANA L. CHRISTENSEN, Chief District Judge.

United States Magistrate Judge R. Keith Strong entered his Findings and Recommendation on December 8, 2014 recommending that Dunsmore's petition for habeas corpus be dismissed without prejudice. Dunsmore timely objected to the Findings and Recommendation on December 19, 2014, (Doc. 5) and is therefore entitled to de nova review. 28 U.S.C. § 636(b)(l). The portions of the findings and recommendations not specifically objected to will be reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). "Where a petitioner's objections constitute perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original habeas petition, the applicable portions of the findings and recommendations will be reviewed for clear error." Roslingv. Kirkegard, 2014 WL 693315 (D. Mont. 2014) (citations omitted).

On February 9, 2015, Dunsmore filed an "Amendment to and Motion to Vacate Conviction and Dismiss Charge" (Doc. 7) which was docketed as objections to the Findings and Recommendation. The objections in this filing are untimely and are therefore not entitled to de nova review. 28 U.S.C. § 636(b)(l). To the extent that this filing is construed as a motion requesting relief, the filing is premature as Dunsmore has yet to exhaust his claims in state court as discussed in Judge Strong's Findings and Recommendation and this Order. For the reasons listed below, the Court adopts Judge Strong's Findings and Recommendation in full.

Judge Strong found that Dunsmore had filed an appeal with the Montana Supreme Court following his conviction and sentencing. Dunsmore objects to Judge Strong's finding that this appeal, which is currently still pending, makes his filing in this Court premature for failure to exhaust his claims in state court. While Dunsmore's objections state that the Montana Supreme Court has dismissed and denied a previous habeas corpus petition filed by Dunsmore, the fact remains that the appeal he filed on February 6, 2014 with the Montana Supreme Court is still pending. State v. Dunsmore, No. DA 14-0087 (Mont. Filed Feb. 6, 2014), available at http://supremecourtdocket.mt.gov (accessed Feb. 6, 2015). Thus, Dunsmore has not yet exhausted his claims in state court and his federal petition in this case is premature.

There being no clear error in Judge Strong's remaining Findings and Recommendation,

IT IS ORDERED that Judge Strong's Findings and Recommendation (Doc. 4) are ADOPTED IN FULL. Dunsmore's petition (Doc. 1) is DISMISSED WITHOUT PREJUDICE. A certificate of appealability is DENIED.

IT IS FURTHER ORDERED that the Clerk of Court shall enter by separate document a judgment in favor of Respondents and against Petitioner.


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