Azure v. Mahoney et al

Filing 6

ORDER adopting Findings and Recommendations re 3 Findings and Recommendations. The Petition 1 is DENIED. A certificate of appealability is DENIED. Signed by Judge Susan P. Watters on 6/17/2014. Mailed to Azure. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

FILED
JUN 17 2014
Clerk, U.S. District Court
District Of Montana
Billings

LOWELL JAMES AZURE,
CV 14-66-BLG-SPW
Petitioner,
vs.

ORDER

ATTORNEY GENERAL OF THE
STATE OF MONTANA,
Respondent.
Petitioner Lowell Azure, a state prisoner proceeding prose, brings this
action pursuant to 28 U.S.C. § 2254. In the Petition, Azure challenges the
Montana Board of Pardons and Parole's ("Parole Board") denial of his parole.
United States Magistrate Judge Carolyn Ostby entered Findings and
Recommendations in this matter on June 4, 2014, in which she recommended that
Azure's Petition be denied on the merits. (Doc. 3). Specifically, Judge Ostby
determined that the Parole Board did not violate the U.S. Constitution by imposing
preconditions on sex offenders seeking parole.
Azure filed essentially two objections to the Findings and
Recommendations. This Court will review Judge Ostby's conclusions de nova. 28
U.S.C. § 636(b)(l)(B).

1

First, on June 4, 2014, Azure filed a document requesting the Court to
transfer the case to the Helena Division. 1 (Doc. 4). Azure correctly notes that
pursuant to L.R. 3.2(b)(2)(B), the proper venue for this case is the Helena Division
as it challenges the denial of parole. However, the incorrect venue is Azure's own
fault, as he filed the action before this Court. On the front page of his Petition,
Azure handwrote "Billings" where the prisoner writes in the correct venue. (Doc.
1 at 1). On the form's paragraph 6, it clearly states that any challenge to a decision
by the Parole Board should be filed in the Helena Division. (Id. at 2). Since Azure
chose this forum, he cannot now ask the case to be transferred to another venue. In
any event, even if this Court is technically the incorrect venue, this Court clearly
has jurisdiction over the case. Therefore, Azure does not suffer any prejudice by
this Court's retention of this matter.
Second, Azure formally objected to Judge Ostby's Findings and
Recommendations. (Doc. 5). In his objection, Azure states that he is eligible for
parole and therefore he should be released. Azure misses the point. There is no
federal right to parole. Swarthout v. Cooke,_ U.S._, 131 S. Ct. 859, 862
(2011). Federal courts can only review whether a state parole board afforded the

1

While it follows Judge Ostby's Findings and Recommendations on the docket,
Azure wrote this document on May 30, 2014. It did not arrive to the Clerk of
Court until June 4, after the entry of the Findings and Recommendations.
2

prisoner an opportunity to be heard and a written statement of reasons why parole
was denied. Id.
Here, Azure had numerous opportunities to be heard by the Parole Board,
and each time it provided reasons why parole was denied. (Doc. 3 at 2-3). That
ends this Court's inquiry. This Court is without authority to order Azure's release
on parole.
Accordingly, IT IS HEREBY ORDERED:

1. Judge Ostby's Findings and Recommendations (Doc. 3) are ADOPTED
IN FULL.
2. Azure's Petition (Doc. 1) is DENIED.
3. The Clerk of Court shall enter, by separate document, a judgment of
dismissal.
4. A certificate of appealability is DENIED.

DATED this

yL
day of June, 2014.

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~t:uJ~
SUSANP. WATTERS
United States District Judge

3