United States District Court, D. Montana, Missoula Division
L. CHRISTENSEN, CHIEF JUDGE
States Magistrate Judge Jeremiah C. Lynch entered his
Findings and Recommendations on Febrary 6, 2018, recommending
to dismiss Petitioner Justin King's ("King")
Petition for a Writ of Habeas Corus (Doc. 1), under 28 U.S.C.
§ 2254. (Doc. 7.) Judge Lynch recommended that
King's petition be dismissed because King canot overcome
the defrence due to the Montana Supreme Court on his frst
claim. (Doc. 7 at 1-2.) Judge Lynch frter recommended tat
King's remaining claims be dismissed wit prejudice as
procedurally defulted. (Doc. 7 at 1.)
timely objected to the Findings ad Recommendations, ad is
entitled to de novo review of those fndings to which he
specifcally 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. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981); Thomas v. Arn, 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) (citations omitted).
Lynch recommended dismissing King's claim that the trial
court abused its discretion by providing contradictory
instructions regarding the affirmative defense of justifiable
use of force. This claim was presented to the Montana Supreme
Court which affirmed upon finding that the trial court did
not abuse its discretion because the conflicting evidence
presented at trial warranted both instructions. State v.
King, 385 P.3d 561 (Mont. 2016).
habeas review, this Court applies the deferential standard
imposed under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) and may not reverse a state court
decision unless the state's adjudication on the merits
(1) "resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States" or (2) "resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d)(1)-(2).
Lynch found that King had not alleged any facts or argument
as to why he met either standard. King did not raise any
objection to this finding. Accordingly, the Court reviews for
clear error. L.R. 72.3(a); see also McDonnell Douglas
Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981). Finding none, the Court adopts
the recommendation that AEDPA deference applies and thus
King's claim will be dismissed with prejudice as lacking
claims II to V King alleged that (1) trial counsel was
ineffective; (2) the prosecution presented false evidence;
(3) appellate counsel provided ineffective assistance; and
(4) he was unjustly denied postconviction counsel. (Doc. 1.)
a federal court may consider the merits of [King's]
petition for a writ of habeas corpus, [King] generally must
first exhaust his available state court remedies." 28
U.S.C. § 2254(b); Smith v. Baldwin, 510 F.3d
1127, 1137-38 (9th Cir. 2007) (en banc). Because King did not
present these claims to the Montana Supreme Court,
(see Doc. 5 at 4), they are considered procedurally
defaulted and bar this Court's review. See Ylst v.
Nunnemaker, 501 U.S. 797, 802-05 (1991). However, King
"may overcome procedural default by making 'an
adequate showing of cause and prejudice' for his failure
to exhaust his state court remedies." Smith,
510 F.3d at 1139 (quoting Strickler v. Greene, 527
U.S. 263, 282 (1999)). To make this showing King may
"demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law."
Id. at 1146 (citing Coleman v. Thompson,
501 U.S. 722, 750 (1991)).
Lynch explained how King might show cause and prejudice:
(1) He might show a legitimate excuse for his default, for
instance that "some objective factor external to the
defense" prevented him from raising his claims in state
court. The "prejudice" prong is met if King can
show that each error he alleges was serious enough to
undermine confidence in the outcome of the proceeding.
(2) He might "show that, in light of all the evidence,
it is more likely than not that no reasonable juror would
find him guilty ...