Opinion
CV 13-60-BU-DWM-JCL
2013-09-30
KEITH EUGENE DOYLE, Petitioner, v. MARTIN FRINK, Warden and ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.
ORDER
This action was filed in the United States District Court for the District of Montana, Butte Division on August 5, 2013. Petitioner Keith Eugene Doyle seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) United States Magistrate Judge Jeremiah C. Lynch filed Findings and a Recommendation regarding Mr. Doyle's Motion for Leave to Proceed in forma pauperis and Complaint on August 7, 2013. (Doc. 4.) Pursuant to 28 U.S.C. § 636(b)(1); objections to the Findings and Recommendation entered by Judge Lynch were due August 26, 2013. Mr. Doyle submitted his Objections on August 26, 2013. (Doc. 5.) While his Objections were not filed with the Court until August 28, 2013, Mr. Doyle's submission of his documents on the day of the deadline is sufficient. See Faile v. Upjohn Co., 988 F.2d 985, 988 (9th Cir. 1993) (noting that "filing" occurs when an incarcerated person's document is delivered to prison authorities).
Judge Lynch granted Mr. Ingram's Motion for Leave to Proceed in forma pauperis and recommended his Petition be dismissed as an unauthorized successive petition. Mr. Doyle objects to the recommendation that his Petition be dismissed. When a party objects to any portion of the Findings and Recommendation issued by a Magistrate Judge, the district court must make a de novo determination regarding that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1)(B); McDonnell Douglas Corp. v. Commodore Bus. Mack Inc., 656 F.2d 1309, 1313 (9th Cir.1981). None of Mr. Doyle's objections rejoin the jurisdictional analysis Judge Lynch related in findings supporting his recommendation that the Petition be dismissed. Even so, after de novo review of Judge Lynch's Findings and Recommendation and Mr. Doyle's Objections to the same, I agree with Judge Lynch's conclusion that Mr. Doyle's Complaint must be dismissed with prejudice. This is Mr. Doyle's third petition challenging the validity of his 2005 conviction. Without authorization to file granted by the Court of Appeals, this Court lacks jurisdiction to entertain a second or successive petition brought under 28 U.S.C. § 2254. Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam).
Based on the foregoing, IT IS ORDERED that Judge Lynch's Findings and Recommendation, (doc. 4), are ADOPTED IN FULL. Mr. Doyle's Petition is DISMISSED as an unauthorized successive petition.
IT IS FURTHER ORDERED a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by a separate document judgment of dismissal and shall close this case.
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Donald W. Molloy, District Judge
United Stages District Court