Beebe v. Mahoney, No. 6:2007cv00076 - Document 13 (D. Mont. 2008)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 10 in full. The petition is DENIED on the merits and a certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 9/4/2008. Copy mailed to Beebe. (ASG, )
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Beebe v. Mahoney Doc. 13 FILED SEP 0 4 2008 PATRICK E. DUFFV. CLERK m D€PW UERK. U S IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION ERIC WAYNE BEEBE, ) Petitioner, vs . MIKE MAHONEY; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondent. ) ) ) ) ) ) ) ) ) CV 07-76-H-DWM-RKS ORDER Petitioner Beebe has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. 5 2254. revocation of his parole. Petitioner challenges the Prior to filing his federal Petition Beebe filed two petitions for writ of habeas corpus in the Montana Supreme Court, which were denied. United States Magistrate Judge Keith Strong conducted preliminary screening of the Petition as required by Rule 4 of the Rules Governing Section 2254 cases in the United States Dockets.Justia.com District Courts. Under Rule 4, the Petition must be summarily dismissed "[ilf it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the District Court." If summary dismissal is not warranted, the judge must order the respondent to file an answer, motion, or other response or to take some other action as ordered by the judge. Judge Strong issued Findings and Recommendations in which he recommends dismissal of the Petition for failure to allege a constitutional due process violation. Judge Strong explained that under Williams v. Tavlor, 529 U.S. 362, 405-06 (2000) and Morrisev v. Brewer, 408 U.S. 471, 485 (1972), Petitioner must show that the parole officers or Parole Board acted in a manner contrary to, or unreasonably applied, clearly established federal law. The Magistrate discussed each step of the parole revocation process applied to the Petitioner and found such violation. Judge Strong also recommends denial of a certificate of appealability. Petitioner did not timely object and so has waived the right to de novo review of the record. 28 U.S.C. 5 636 (b)(1). This Court will review the Findings and Recommendation for clear error. McDonnell Doualas C o r ~ . v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." (9th Cir. 2000). United States v. Svrax, 235 F.3d 422, 427 I can find no clear error with Judge Strong's Findings and Recommendations and therefore adopt them in full Accordingly, IT IS HEREBY ORDERED that the Petition is DENIED on the merits, and a certificate of appealability is DENIED. The Clerk of Court is direct to enter by separate document a judgment in favor of Respondents and against DATED this day of September, 2008. Petitioner. /"' ~nited/t~es District Court