Welnel v. Kirkegard, No. 6:2015cv00094 - Document 4 (D. Mont. 2015)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 3 in full. Petition 1 DENIED AND DISMISSED. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 12/17/2015. Mailed to Welnel. (TAG, )

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Welnel v. Kirkegard Doc. 4 FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION LJtC 1 7 2015 Clerk, U.S District Court District Of Montana Missoula CV 15-94-H-DLC-JTJ KEVIN WELNEL, Petitioner, ORDER vs. LEROY KIRKEGARD, Respondent. United States Magistrate Judge John T. Johnston entered findings and recommendations in this case on November 24, 2015, recommending that Petitioner Kevin W elnel' s ("Welnel") petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed and denied for lack of merit. Welnel did not object to the findings and recommendations, and so waived the right to de nova review of the record. 28 U.S.C. § 636(b)(l)(C). This Court reviews for clear error those findings and recommendations to which no party objects. See McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 149 (1985). Clear error exists ifthe 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- Dockets.Justia.com Having reviewed the findings and recommendations, the Court finds no clear error in Judge Johnston's conclusions that the Montana Parole Board had discretion to deny Welnel parole, and that he therefore cannot prevail on a due process claim in this habeas action. Accordingly, IT IS ORDERED that Judge Johnston's findings and recommendations (Doc. 3) are ADOPTED IN FULL. Welnel' s habeas petition (Doc. 1) is DENIED AND DISMISSED. IT IS FURTHER ORDERED that the Clerk of Court shall enter, by separate document, a judgment of dismissal. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. DATED this l-=J-f1aay of December 2015. Dana L. Christensen, Chief Judge United States District Court -2-

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