United States District Court, D. Montana, Missoula Division
L. CHRISTENSEN, CHIEF JUDGE UNITED STATES DISTRICT COURT.
States Magistrate Judge Jeremiah C. Lynch entered his Order
and Findings and Recommendation (Doc. 6) on January 11, 2019,
recommending Sean Dean Ogle's habeas petition (Doc. 1) be
denied because his first claim does not survive deferential
review under 28 U.S.C. § 2254(d) and his second claim is
not cognizable on federal habeas review. Ogle timely filed
objections to Judge Lynch's Findings and Recommendation.
Accordingly, he is entitled to de novo review of those
specific issues that are "properly objected to." 28
U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P.
72(b)(3). "A party makes a proper objection by
identifying the parts of the magistrate's disposition
that the party finds objectionable and presenting a legal
argument and supporting authority, such that the district
court is able to identify the issues and the reasons
supporting a contrary result." Mont. Shooting Sports
Ass'n v. Holder, 2010 WL 4102940, at *2 (D. Mont.
Oct. 18, 2010) (citation omitted). "It is not sufficient
for the objecting party to merely restate arguments made
before the magistrate or incorporate those arguments by
reference." Id. As the purpose of the
magistrate is to promote efficient use of judicial resources,
"there is no benefit if the district court  is
required to review the entire matter de novo because the
objecting party merely repeats the arguments rejected by the
magistrate." Id. (citation omitted). If the
objecting party fails to make a proper objection, "this
Court follows other courts that have overruled the objections
without analysis." Id.
objection, this Court reviews findings and recommendations
for clear error. United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en banc); 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
PFO Sentencing Claim
primary contention is that the Montana Supreme Court erred in
its application of Montana law when it failed to
retroactively apply a 2017 amendment to the Persistent Felony
Offender ("PFO") statute to his 1991 PFO conviction
and sentence. (Doc. 1 at 4-6.) Judge Lynch addressed
Ogle's claim in three parts. First, Judge Lynch
determined Ogle's bare contention, that the Montana
Supreme Court did not properly apply Montana state sentencing
law, was not cognizable on federal habeas review.
Swarthout v. Cooke, 562 U.S. 216, 219 (2011).
"It is not the province of a federal habeas court to
reexamine state court determinations on state law
questions." Estelle v. McGuire, 502 U.S. 62,
67-68 (1991). Second, Judge Lynch concluded Ogle's
attempt to advance a due process violation was "nothing
more than a disagreement with the application of the Montana
state sentencing statute," and Ogle was attempting to
"transform a state-law issue into a federal one merely
by asserting a violation of due process." (Doc. 6 at 6.)
Therefore, Ogle's federal right to due process was not
violated. Finally, Judge Lynch determined Ogle could not
establish any of the elements necessary to prove the Montana
Supreme Court's ruling violated his federal right to
equal protection or was "contrary to, or involved an
unreasonable application of, clearly established Federal
law." 28 U.S.C. § 2254(d)(1).
makes four objections to Judge Lynch's Findings and
Recommendation regarding his PFO sentencing claim. Two of
these objections are not proper and are not entitled to de
novo review. First, Ogle claims he should have been afforded
federal protection from the "draconian laws" of
Montana because he was an "interstate
traveler/visitor" and only two other states have PFO
laws that can be implemented after a second felony
conviction. (Doc. 7 at 5.) This objection does not respond to
any portion of Judge Lynch's findings and recommendation,
fails to make a comprehensible legal argument, and cites no
authorities for its contentions. Therefore, it is not a
proper objection. Second, Ogle argues the amended 2017 PFO
statute should be applied retroactively to his 1991 sentence
because Montana retroactively awarded "good time"
to deserving prisoners after a change in the law allowed
"good time" awards that had previously been barred.
(Doc. 7 at 6-9.) This objection is not proper because it
repackages arguments made in Ogle's petition, which Judge
Lynch properly concluded are not cognizable on federal habeas
review, as "the retroactivity of a state statute is a
state-law question." (Doc. 6 at 5.)
objects to Judge Lynch's equal protection analysis
regarding his PFO claim on two grounds. These objections are
construed liberally, Erickson v. Pardus, 551 U.S.
89, 94 (2007), and reviewed de novo by this Court. First,
Ogle asserts he was a member of a class or group (those
felons sentenced prior to July 1, 2017) that was
discriminated against by the imposition of a higher burden
than another class (those felons sentenced after July 1,
2017), and he has raised a valid equal protection claim.
(Doc. 7 at 2-3.) Ogle has not cited any authority suggesting
this time-based classification or group can be afforded
relief under the Fourteenth Amendment equal protection
clause, and there is no legal basis for this objection.
Second, Ogle argues that it was "extremely rare"
for felony offenders to be sentenced under the 1989 PFO
statute for their second felony conviction, and that the
statute was imposed against him in a discriminatory manner in
violation of his constitutional rights because he refused to
accept the prosecutor's plea agreement. (Doc. 7 at 4.)
This is not a valid legal argument, and it contravenes
long-standing precedent. It is settled law that "so long
as the prosecutor has probable cause to believe that the
accused committed an offense defined by statute, the decision
whether or not to prosecute, and what charge to file or
bring... generally rests entirely in his discretion."
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
Reviewing de novo those findings and recommendations to which
Ogle properly objected, the Court overrules Ogle's
Application of the Nichols Case
petition for habeas corpus, Ogle mistakenly claims that the
United States Supreme Court's decision in Nichols v.
United States, 136 S.Ct. 1113 (2016), overrides the
Montana Supreme Court's ruling on his Sex Offender
Registration and Notification Act ("SORNA")
notification violation, because "the rulings of the U.S.
Supreme Court rule over... state courts, especially in
dealing with cases like S.O.R.N.A. laws which are based off
Federal laws." (Doc. 1 at 8.) Judge Lynch concluded that
Nichols is not controlling in this case because Ogle
pled guilty and was sentenced under Montana's SORNA
statutes, whereas Nichols interpreted a federal
SORNA statute. Therefore, the holding in Nichols is
not applicable to Ogle's violation of Montana law, and
the Montana Supreme Court's ruling is controlling.
Finding this claim concerned "purely an issue of state
law," Judge Lynch determined it was not cognizable on
federal habeas review. (Doc. 6 at 9.) Ogle's objection
simply reasserts his argument that the decisions of the
United States Supreme Court on issues of federal law are also
controlling over similar state laws. As Ogle has not made a
proper objection, this Court overrules it without further
analysis. Reviewing Judge Lynch's findings and
recommendation on the applicability of the Nichols
decision for clear error, this Court finds none.
Certificate of Appealability
Court also determines that Ogle is not entitled to a
certificate of appealability. By asking this Court to review
the Montana Supreme Court's interpretation of Montana law
and arguing that federal precedent should apply to state law,
Ogle has failed to make claims that are cognizable on federal
habeas review. Additionally, Ogle's Fourteenth Amendment
equal protection objections, reviewed de novo, do not
"demonstrate 'a substantial showing of the denial of
a constitutional right'" and "jurists of
reason" would not disagree with this Court's
resolution of the claims. Miller-El v. Cockrell, 537
U.S. 322, 327 (2003) (quoting 28 U.S.C. § 2253(c)(2)).
the remaining portions of Judge Lynch's Findings and
Recommendation for clear error and finding none, IT IS
ORDERED that Judge Lynch's Findings and Recommendation
(Doc. 7) is ADOPTED IN FULL, and Ogle's Petition (Doc. 1)
FURTHER ORDERED that the Clerk of Court is directed to enter
a judgment ...