United States District Court, D. Montana, Butte Division
L. CHRISTENSEN, CHIEF JUDGE
States Magistrate Judge Jeremiah C. Lynch issued his Findings
and Recommendation in this case on January 8, 2019,
recommending that the Court dismiss Petitioner James
Stewart's application for writ of habeas corpus (Doc. 1),
brought pursuant to 28 U.S.C. § 2254. (Doc. 12.) Stewart
has filed three supplemental pleadings, but, even under the
liberal standard afforded to pro se litigants, only one of
those pleadings can conceivably be read as an objection the
Findings and Recommendation. (Docs. 15, 17, &
Stewart is entitled to de novo review of those findings and
recommendations to which he has specifically objected. 28
U.S.C. § 636(b)(1)(C). Absent 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. 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) (citations omitted).
Lynch determined that Stewart's application for writ of
habeas corpus should be dismissed for failure to prosecute.
Stewart filed his petition on August 8, 2018. (Doc. 1.) On
November 30, 2018, Judge Lynch issued an order to show cause
why Stewart's petition should not be dismissed with
prejudice as procedurally defaulted due to Stewart's
failure to present his claims before the state court. (Doc.
11.) Stewart did not respond to the show cause order, and
Judge Lynch accordingly determined that dismissal is
warranted. (Doc. 12.) Because Stewart has actively prosecuted
his case following issuance of the Findings and
Recommendation, the Court addresses whether Stewart's
claim is procedurally defaulted rather than whether dismissal
for failure to prosecute was warranted. See 28
U.S.C. § 636(b)(1).
Court adopts the recommendation to deny Stewart's
petition, but it does so on an alternative basis, that the
petition is procedurally defaulted. In his petition, Stewart
brings two claims, both of which arise from an alleged
unconstitutional delay during the sentencing phase of his
state trial court proceedings. (Docs. 1 at 4-5, 11 at 4.)
First, Stewart alleged ineffective assistance of trial
counsel due to trial counsel's failure to object to a 10
½. month delay in preparing Stewart's pre-sentence
investigation report. (Doc. 1 at 4.) Second, Stewart alleged,
more generally, that his due process rights were violated by
the delay between his guilty plea and his sentencing. (Doc. 1
order to show cause, Judge Lynch found that Stewart failed to
adequately bring his claims before the Montana Supreme Court
during his post-conviction proceedings. (Doc. 11 at 5-7.)
Accordingly, Judge Lynch determined that Stewart's claims
are procedurally defaulted unless Stewart can show cause and
prejudice for the default. (Id. (citing Gray v.
Netherlands 518 U.S. 152, 162 (1996)). Stewart objects
on the grounds of ineffective assistance of appellate
counsel. (Doc. 17); see supra n. 1. However, he
claims only that his counsel on direct appeal failed to raise
the issue of sentencing delay. (Doc. 17.) Stewart's
argument regarding performance of appellate counsel has no
bearing on his failure to raise claims during the state
postconviction proceedings. Thus, he has alleged no
"objective factor external to the defense" that
prevented him from raising claims before the state court.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
Court also determines that Stewart is not entitled to a
certificate of appealability. There is no reasonable debate
regarding whether Stewart must exhaust state court remedies.
See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
the remaining portions of Judge Lynch's Findings and
Recommendations for clear error and finding none, IT IS
(1) Judge Lynch's Findings and Recommendation (Doc. 12)
is ADOPTED in part and MODIFIED in part, as explained within
(2) Stewart's Petition (Doc. 1) is DENIED;
(3) A certificate of appealability is DENIED; and
(4) The Clerk of Court shall enter judgment of dismissal by
 Stewart did not allege error in Judge
Lynch's factual analysis or legal reasoning in two of the
supplemental pleadings. Rather, he: (1) gave an update on the
status of his confinement (Doc. 15); and (2) alleged that
attorneys involved in his state court case are subject to
disciplinary proceedings (Doc. 20). However, one of the
pleadings, if construed liberally, alleges that procedural
default is excused due to ineffective assistance ...