United States District Court, D. Montana, Great Falls Division
ORDER ADOPTING MAGISTRATE
JUDGE'S FINDINGS AND
MORRIS, UNITED STATES DISTRICT COURT JUDGE.
Michael Daniels has applied for writ of habeas corpus under
28 U.S.C. § 2254. United States Magistrate Judge John
Johnston issued Findings and Recommendations in this matter
on August 31, 2017. (Doc. 8.) Judge Johnston recommended that
the Court dismiss Daniels' petition with prejudice as
time-barred without excuse. Id. at 10.
Court reviews de novo findings and recommendations to which
objections are made. 28 U.S.C. § 636(b)(1)(C). Portions
of findings and recommendations not specifically objected to
are reviewed for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th
Cir. 1981). Where a party's objections, however,
constitute perfunctory responses argued in an attempt to
engage the district court in a rehashing of the same
arguments set forth in the original response, the Court will
review the applicable portions of the findings and
recommendations for clear error. Rosling v.
Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014)
(internal citations omitted).
filed an objection. (Doc. 9.) The document contained
substantial rehashing of his arguments regarding Apprendi
v. New Jersey, 530 U.S. 466 (2000). Id. at 1-3.
Daniels also alleges that the implication of a constitutional
right in his petition should overcome his petition's
untimeliness. Id. at 3-4. The Court notes that Mr.
Daniels was provided notice and the opportunity to respond
regarding the timeliness issue. (Docs. 8 at 3; 5; 6) He
raised similar arguments at that time. (Doc. 6 at 1-2.) Thus,
the Court finds no specific objections that are not an
attempt to rehash the same arguments, and will review the
Findings and Recommendations for clear error.
challenges a conviction for robbery in Montana's Eighth
Judicial District Court, Cascade County, on August 30, 2001.
(Doc. 1 at 2-3.) The court originally sentenced Daniels to
thirty-five years, with five years suspended. (Doc. 1 at 3.)
He also received a consecutive ten years sentence, with five
years suspended, for use of a weapon. Id. The trial
court modified Daniels' sentence to forty-five years with
twenty years suspended on April 6, 2004, pursuant to §
41-5-2510 of the Montana Youth Court Act. Id. at 7.
filed a direct appeal, and his conviction was affirmed by the
Montana Supreme Court on September 18, 2003. State v.
Daniels, 2003 MT 247, 317 Mont. 331, 77 P.3d 224.
Daniels also filed a petition for postconviction relief
arguing that the weapons enhancement was unlawful. (Doc. 8 at
2.) The trial court denied his petition, and the Montana
Supreme Court affirmed on December 28, 2005. Daniels v.
State, No. 04-795, 2005 MT 345N, 330 Mont. 401, 126 P.3d
507. The Montana Supreme Court denied Daniels' subsequent
petition for a writ of habeas corpus on the grounds that
Daniels had not demonstrated that his sentence is illegal on
May 17, 2016. Daniels v. Kirkegard, No. 16-0259, Or.
alleges that his Fifth, Sixth, and Fourteenth Amendment
Rights were violated. (Doc. 1 at 5.) He specifically claims
that the trial court erred in applying a weapons enhancement
to his sentence without submitting the question to the jury
and requiring proof beyond a reasonable doubt in violation of
the rule in Apprendi. Id. He also argues
that his trial counsel and the trial court should have
applied Apprendi at his 2004 re-sentencing.
Id. at 7.
Johnston recommends that the Court dismiss Daniels'
petition with prejudice as untimely without excuse.
one-year limitations period applies to petitions filed by
state prisoners under 28 U.S.C. § 2254. Giving Daniels
the benefit of all doubt, Judge Johnston found that sentence
became final on December 28, 2005, the date the Montana
Supreme Court affirmed denial of his postconviction petition.
(Doc. 8 at 4.) Judge Johnston also found that Daniels did not
file his federal habeas petition for more than ten years
after his sentence was finalized. Id.
Court agrees with and adopts Judge Johnston's analysis
and determination that statutory tolling brings Daniels'
claim within the one-year limitation. (Doc. 8 at 5-6.) The
Court further agrees with and adopts Judge Johnston's
analysis and determination that Daniels has failed to show he
is entitled to equitable tolling. Id. at 6-8.
Daniels' petition is untimely.
regard to Mr. Daniels' argument that the implication of a
constitutional right should defeat the statute of
limitations, this Court notes that the entire function of 28
U.S.C. § 2254 is to provide redress for violations of
constitutional rights. 28 U.S.C. § 2254(a). Yet,
Congress enacted the corresponding 28 U.S.C. §
2244(d)(1), which sets a one-year statute of limitations for
such claims. As such, Daniels has failed to demonstrate any
extraordinary circumstance prevented him from filing in this