Schaff v. Kirkegard et al, No. 1:2014cv00053 - Document 5 (D. Mont. 2014)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 3 in full. Schaff's Petition is DISMISSED, and a certificate of appealability is DENIED. Signed by Judge Susan P. Watters on 5/15/2014. Mailed to Schaff. (TAG, )

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Schaff v. Kirkegard et al Doc. 5 UNITED STATES DISTRICT COURT DISTRICT OF MONT ANA BILLINGS DIVISION CV-14-53-BLG-SPW RICHARD DEAN SCHAFF, ORDER Petitioner, vs. LEROY KIRKEGARD; ATTORNEY GENERAL OF THE STATE OF MONTANA, Res ondents. Petitioner Richard Dean Schaff filed a petition for writ of habeas corpus alleging the Montana Board of Pardons and Parole violated his constitutional rights by denying his application for parole on January 31, 2014. (Doc. 1). United States Magistrate Judge Carolyn Ostby entered Findings and Recommendations in this matter on April24, 2014, recommending that Schaffs Petition be denied on the merits. (Doc. 3). Schaff timely filed his objection and is therefore entitled to de novo review of the specified findings and recommendations to which he objects. 28 u.s.c. § 636(b)(l). Schaffs objection reiterates the basic allegation made in his petition: that is, I Dockets.Justia.com ----------------------------------- the Montana Board of Pardons and Parole violated his constitutional rights by denying him parole. (Doc. 4). Montana Board of Pardons and Parole did nothing illegal or unconstitutional when it exercised its broad discretion to determine whether parole should be granted in Schaffs case, as explained in Judge Ostby's findings and recommendation. (Doc. 3 at 2). Judge Ostby correctly pointed out that all of the due process protections guaranteed to Schaff at the parole stage were present and the federal due process requirements were satisfied. (Id. at 3, citing Greenholtz v. Inmates ofNebraska Penal and Correctional Complex, 442 U.S. I, 16 (1979)). Schaffs allegations lack merit under the law and will be dismissed. After a de novo review of Judge Ostby's findings and recommendations, IT IS HEREBY ORDERED: I. Judge Ostby's Findings and Recommendations (Doc. 3) are ADOPTED in full. 2. Schaffs Petition is DISMISSED. 3. The Clerk of Court is directed to close the matter and enter judgment pursuant to Rule 58 of the Federal Rules of Procedure. 4. Pursuant to Rule 11(a) of the Rules Governing§ 2254 Proceedings, a certificate of appealability is DENIED. Schaff makes no substantial showing that he was deprived of a constitutional right. 2 ---------------------------------------- HOl10fableSUSal P. Watters, United States District Judge 3

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