Stang v. Kirkegard et al

Filing 9

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. This action is DISMISSED AS MOOT. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 5/1/2015. Mailed to Stang. (TAG, )

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

APR 3 0 2015
Clerk, U.S District Court
District Of Montana
Missoula

CV 14-128-BLG-DLC-CSO

LENNY STANG,
Petitioner,

ORDER
vs.
LEROY KIRKEGARD; TIM FOX,
Attorney General of the State of
Montana,
Respondents.
United States Magistrate Carolyn S. Ostby entered her findings and
recommendations in this case on March 13, 2015, recommending dismissal of
Petitioner Stang's petition for writ of habeas corpus under 28 U.S.C. § 2254.
Stang failed to timely 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). The Court will
therefore review the record for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). The Court
adopts Judge Ostby's findings and recommendations in full.
Judge Ostby found, and this Court agrees, that Stang's habeas action was
mooted by the credit he received on his probation violation sentence, which
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amounted to the same number of days he alleges he was wrongfully imprisoned.
Consequently, there is no constitutional violation in need of a remedy here. See

Spencer v. Lemna, 523 U.S. 1, 7 (1998).
IT IS ORDERED that Judge Ostby's findings and recommendations
(Doc. 8) are ADOPTED IN FULL. This action is DISMISSED AS MOOT. The
Clerk of Court shall enter by separate document a judgment in favor of
Respondents and against Petitioner Stang. A certificate of appealability is
DENIED.
DATED this

3D~ay of April, 2015.

Dana L. Christensen, Chief Judge
United States District Court

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