IN THE UNITED STATES DISTRICT COURT Hap □ FOR THE DISTRICT OF MONTANA Cle, 23 Loa BILLINGS DIVISION Disiny S District ¢ Of Mo Ourt Billing, "278

JOHN W. COLLIER, CV 15-79-BLG-SPW Petitioner, vs. . | ORDER ADOPTING MAGISTRATE’S FINDINGS STATE OF MONTANA, AND RECOMMENDATIONS Respondent.

The United States Magistrate Judge filed Findings and Recommendations on March 2, 2020. (Doc. 68.) The Magistrate recommended the Court deny the State of Montana’s motion to dismiss John Collier’s amended petition for writ of habeas

corpus (Doc. 62) and conditionally grant the petition (Doc. 25). (Doc. 68 at 41.) Pursuant to

(b)(1), parties are required to file written objections within 14 days of the filing of the Magistrate’s Findings and Recommendations. No objections were filed. When neither party objects, this Court reviews the Magistrate’s Findings and Recommendations for clear error. McDonnell . Douglas Corp. v. Commodore Bus. Mach., Inc.,

(9th Cir. 1981). Clear error exists if the Court is left with a “definite and firm conviction that a mistake has been committed.” United States v. Syrax,

(9th Cir. 2000). .

After reviewing the Findings and Recommendations, this Court does not find that the Magistrate committed clear error. Collier has established cause and prejudice to excuse his procedural default under Martinez v. Ryan,

(2012) | because, in the initial collateral review proceeding, Collier’s counsel effectively □

abandoned the claim for ineffective assistance of counsel without providing notice

to the court, the state, or Collier. See (Doc. 68 at 21-29). Moreover, Collier has established a claim for ineffective assistance of counsel under Strickland v. Washington,

(1984). Collier’s trial counsel failed to perform a meaningful investigation into Collier’s claim of diminished mental capacity where the circumstances called for one. Collier has demonstrated that this failure fell

outside the wide range of professionally competent assistance and that he was prejudiced as a result. See (Doc. 68 at 29-40). Accordingly, IT IS ORDERED that the proposed Findings and Recommendations entered by the United States Magistrate Judge (Doc. 68) are ADOPTED IN FULL. IT IS FURTHER ORDERED: 1. The State of Montana’s Motion to Dismiss Petitioner John W. Collier’s Amended Petition for Writ of Habeas Corpus (Doc. 62) is DENIED. 2. Inrelation to Collier’s remaining ineffective assistance of trial counsel claim, _his Amended Habeas Petition (Doc. 25) is CONDITIONALLY GRANTED.

3. Within 60 days, this matter shall be remanded to Montana’s Fourteenth

Judicial District Court, Musselshell County, to allow the District Court to

schedule a new sentencing hearing. If the State of Montana fails to meet the deadline for remand, Collier shall be released from custody.

_ aot DATED this 23 day of March, 2020.

SUSAN P. WATTERS United States District Judge