United States District Court, D. Montana, Great Falls Division
CHAD K. REIMER, Petitioner,
LEROY KIRKEGARD, ATTORNEY GENERAL OF THE STATE OF MONTANA, et al., Respondents.
L. Christensen, Chief Judge United States District Court
States Magistrate Judge John Johnston entered his Findings
and Recommendations in this matter on October 5, 2016,
recommending denial of Petitioner Chad K. Reimer's
("Reimer") application for writ of habeas corpus
under 28 U.S.C. § 2254. Reimer timely filed objections
and is therefore entitled to de novo review of those Findings
and Recommendations to which he specifically objects. 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.
Mack, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981);
Thomas v. Am, 474 U.S. 140, 149 (1985). "Clear
error exists if the 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). The parties are familiar with the facts of
this case and they will not be repeated here.
to the objections, Reimer contends that Judge Johnston erred
by relying on the minutes of his trial when he issued his
Findings and Recommendations. Reimer asserts that his
violates Rule 5 of the Rules Governing § 2254 Cases in
the United States District Court. This rule holds that a
respondent's "answer must also indicate what
transcripts (of pretrial, trial, sentencing, or
post-conviction proceedings) are available, when they can be
furnished, and what proceedings have been recorded but not
transcribed.... If a transcript cannot be obtained, the
respondent may submit a narrative summary of the
evidence." 28 U.S.C. § 2254 Rule 5(c). Reimer thus
argues that Judge Johnston should have ordered the state to
furnish a copy of his trial transcripts before issuing the
Findings and Recommendations.
Court first points out that Rule 5 only comes into play if a
judge orders a respondent to answer the petition. Here, that
was not done. Second, Reimer's argument, read liberally,
could be asserting that his Due Process rights have been
violated because he was not provided a transcript of his
trial when he filed his collateral appeal to the Montana
Supreme Court. Mayer v. City of Chicago, 404 U.S.
189, 194 (1971) (citations omitted) (when the state provides
for appellate review, an indigent defendant must be provided
with a "record of sufficient completeness to permit
proper consideration of (his) claims."). However, Reimer
never raised this argument in his habeas petition (Doc. 1) or
in his response to Judge Johnston's Order to show cause
(Doc. 6). Because Reimer did not raise this argument before
Judge Johnston, it would be inappropriate for this Court to
consider the argument now. See Greenhow v. Sec. of Health
& Human Services, 863 F.2d 633, 638 (9th Cir. 1988),
overruled by United States v. Hardesty, 977 F.2d
1347 (9th Cir. 1992) ("[A]llowing parties to litigate
fully their case before the magistrate and, if unsuccessful,
to change their strategy and present a different theory to
the district court would frustrate the purpose of the
Magistrates Act. We do not believe that the Magistrates Act
was intended to give litigants an opportunity to run one
version of their case past the magistrate, then another past
the district court.").
because Reimer failed to raise specific arguments to the
rulings made in the Findings and Recommendations, the Court
will review for clear error. See 28 U.S.C. §
636(b)(1)(c) (stating that de novo review is only appropriate
when an objector identifies the "specified proposed
findings or recommendations to which objection is
made"); see also L.R. 72.3(a)(2) ("An
objection filed pursuant to 28 U.S.C. § 636(b)(1) must
itemize ... each recommendation of the magistrate judge to
which objection is made, setting forth the authority the
party relies on to contradict that recommendation.").
Upon review of the Findings and Recommendations, the Court
finds no clear error in Judge Johnston's conclusion that
Reimer failed to show why adjudication of his claim by the
Montana Supreme Court was unreasonable and does not merit
deference by this Court.
there being no clear error in Judge Johnston's Findings
and Recommendations, IT IS ORDERED that:
Judge Johnston's Findings and Recommendations (Doc. 7)
are ADOPTED IN FULL.
Reimer's Petition (Doc. 1) is DISMISSED WITH PREJUDICE.
Clerk of Court is directed to enter, by separate document, a
judgment of dismissal.
certificate of appealability is DENIED.
Nevertheless, even if the Court were to
entertain this argument, it appears that the Montana Supreme
Court found that it was Reimer's responsibility to
produce a copy of his trial transcripts for appellate review.
See Montana v. Reimer, No. DA 15-0409, 2016 MT 7IN
Or. (Mont. March 22, 2016) ("Reimer has a duty to
provide this Court 'with a record sufficient to enable it
to rule upon the issues raised.' Reimer failed to provide
a transcript of the sentencing hearing. Therefore, he has not
presented this Court with a record sufficient to determine
whether the District Court acted vindictively in increasing
the weapons enhancement sentence.") (citations omitted).
Reimer, however, contends that as an indigent appellant it
was the responsibility of ...