Devon v. Batista

Full title: JOHNNY DEVON, Petitioner, v. MIKE BATISTA, ATTORNEY GENERAL OF THE STATE…

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

Date published: Aug 5, 2016

CV 16-29-H-DLC-JTJ (D. Mont. Aug. 5, 2016)

Opinion

CV 16-29-H-DLC-JTJ

08-05-2016

JOHNNY DEVON, Petitioner, v. MIKE BATISTA, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

Dana L. Christensen, Chief Judge United States District Court

ORDER

United States Magistrate Judge John Johnston entered Findings and Recommendations in this matter on June 1, 2016, recommending denial and dismissal of Petitioner Johnny Devon's ("Devon") application for writ of habeas corpus under 28 U.S.C. § 2254. Devon timely filed an objection and is therefore entitled to de novo review of those Findings and Recommendations to which he specifically objects. 28 U.S.C. § 636(b)(1)(C). This Court reviews for clear error those findings and recommendations to which no party objects. See McDonnell Douglas Corp. v. Commodore Bus. Mack, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); 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).

Having reviewed Devon's "objection," the Court finds that it fails to find fault with Judge Johnston's Findings and Recommendations. Instead, Devon argues that his rights were violated by the lack of due process concerning his parole plan. Devon contends that the State should have given him more assistance in producing a suitable parole plan. (Doc. 6 at 2.)

However, under habeas review, Devon must show that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Devon has failed to do so. As discussed by Judge Johnston, the State provided the minimal procedural requirements under the Constitution. Devon was provided an opportunity to be heard and an explanation why his parole was rescinded. Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (prisoner "received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied"). As such, Devon's objection will be overruled.

IT IS ORDERED that:

(1) Judge Johnston's Findings and Recommendations (Doc. 5) are ADOPTED IN FULL.

(2) Devon's petition (Doc. 1) is DENIED for lack of merit.

(3) The Clerk of Court is directed to enter, by separate document, a judgment of dismissal.

(4) A certificate of appealability is DENIED

DATED this 5^th day of August, 2016.

/s/_________

Dana L. Christensen, Chief Judge

United States District Court