Ritesman v. United States

Full title: TIMOTHY ERIC RITESMAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

Date published: Nov 8, 2019

CV 19-114-M-DLC-KLD (D. Mont. Nov. 8, 2019)

Opinion

CV 19-114-M-DLC-KLD

11-08-2019

TIMOTHY ERIC RITESMAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Dana L. Christensen, Chief Judge United States District Court

ORDER

United States Magistrate Judge Kathleen L. DeSoto issued her Findings and Recommendations in this case on September 10, 2019, recommending that the Court dismiss Petitioner Timothy Eric Ritesman's petition for writ of habeas corpus as unexhausted. (Doc. 12.) Ritesman did not file objections to the Findings and Recommendation,¹ and so he is not entitled to de novo review. 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. 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).

1 Within the 14-day window for filing objections, the Court received a supplement that Ritesman had signed and sent prior to issuance of the Findings and Recommendation. (Doc. 13.) This supplement merely adds to the record of Ritesman's state court proceeding, and it cannot be construed as an objection. --------

Judge DeSoto found that Ritesman's state postconviction proceeding remains ongoing. (Doc. 12 at 3-4.) The Court finds no clear error in this finding. Because the Court cannot hear Ritesman's federal habeas claim until he has exhausted state remedies, 28 U.S.C. § 2254(b)(1)(A), it adopts the recommendation to dismiss this matter. The Court also does not find that "jurists of reason would find it debatable whether the district court was correct in its procedural ruling," Gonzalez v. Thaler, 565 U.S. 134, 141 (2012), and it accordingly adopts Judge DeSoto's recommendation to deny a certificate of appealability.

Accordingly, IT IS ORDERED:

(1) Judge DeSoto's Findings and Recommendations (Doc. 12) is ADOPTED;

(2) Ritesman's Amended Petition (Doc. 11) is DISMISSED without prejudice as unexhausted; and

(3) A certificate of appealability is DENIED.

DATED this 8^th day of November, 2019.

/s/_________

Dana L. Christensen, Chief Judge

United States District Court