United States District Court, D. Montana, Helena Division
L. CHRISTENSEN, CHIEF JUDGE.
States Magistrate Judge John Johnston entered his Order,
Findings and Recommendations in this matter on November 3,
2016, recommending dismissal of Plaintiff Shawn Howard
Weller's ("Weller") Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. Weller 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.
novo review of the objections, the Court notes that Weller
has lodged 10 separate objections to the Findings and
Recommendations. However, seven of these objections fail to
argue any legal fault with Judge Johnston's ultimate
finding that Weller's petition is time barred. Because
these seven objections do not impact Judge Johnston's
recommendation to dismiss Weller's petition, the Court
will not address them at length. Consequently, after de novo
review, objections 1, 2, 3, 6, 7, 8, and 9 are overruled.
Weller's fourth objection (Doc. 13 at 6-9) argues that
Judge Johnston incorrectly determined that his habeas
petition was filed more than year past the deadline mandated
in 28 U.S.C. § 2254. However, after making this
objection, Weller's argument in support apparently
attempts to rehash other contentions put forward in his
habeas petition where he contends his revocation sentence is
unconstitutional. The Court has reviewed Judge Johnston's
calculations as to Weller's deadline for filing his
habeas petition (Doc. 5 at 5-6), and agrees with Judge
Johnston that Weller needed to file his petition challenging
his revocation sentence on or before January 7, 2015. Because
Weller filed his petition on July 20, 2016 (Doc. 1 at 39),
his petition is untimely. Weller's fourth objection is
Weller's fifth objection (Doc. 13 at 10) attempts to
challenge Judge Johnston's finding that Weller had failed
to make a compelling showing of actual innocence that would
have alleviated him of the time-bar. In this objection,
Weller argues that Judge Johnston did not fully consider the
exhibits filed in support of his argument of actual
innocence. Weller also challenges a law enforcement report
authored by a Lewis and Clark County deputy sheriff which
describes the incident forming the basis for Weller's
2002 conviction for Partner Family Assault. Weller argues
that the victim interviewed by the deputy sheriff, as well as
the deputy sheriff, falsified key facts in the report and, as
a result, the Court should view this report with disfavor.
Court has reviewed the exhibits supplied by Weller and agrees
with Judge Johnson that Weller has failed to make a
compelling showing of actual innocence. Schlup v.
Delo, 513 U.S. 298, 327 (1995) (holding that, under the
standard of actual innocence, "a petitioner must show
that it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable
doubt"). Importantly, Weller elected to forgo trial for
the 2002 conviction for Partner Family Assault and, instead,
pled guilty to the charge. If he wanted to argue that the
deputy sheriffs report was falsified, he could have done so
at trial. After review of the exhibits filed in support of
his argument of actual innocence, the Court concurs with
Judge Johnston that Weller's claim is without
Weller's tenth objection (Doc. 13 at 14-16) objects to
Judge Johnston's recommendation to deny a certificate of
appealability. In support of this objection, Weller argues
that Judge Johnston made the recommendation because he is
"covering up for" various state judges involved
with Weller's prior criminal proceedings. (Doc. 13 at
15.) The Court finds Weller's objection and subsequent
argument to be wholly without merit and agrees with Judge
Johnston that Weller has not made a substantial showing of a
denial of a constitutional right and should not be encouraged
to pursue further proceedings. 28 U.S.C. § 2253(c)(2);
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Weller's petition is untimely and he has not demonstrated
a basis to excuse the late filing. Accordingly, the Court
will overrule Weller's objection.
Judge Johnston's Findings and Recommendations (Doc. 10)
are ADOPTED IN FULL.
Plaintiff Shawn Howard Weller's petition is (Doc. 1) is
DISMISSED WITH PREJUDICE as time-barred.
Clerk of Court is directed to enter, by separate document, a
judgment of dismissal.
Certificate of Appealability is DENIED.