Burd v. Kirkegard et al

Filing 9

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. Burd's Petition ( 1 , 2 , 7 ) is DENIED. A certificate of appealability is DENIED. Any appeal from this disposition would not be taken in good faith Signed by Judge Donald W. Molloy on 4/9/2015. Mailed to Burd. (TAG, )

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

APR 0 9 2015
Clerk, U.S District Court

District Of Montana
Missoula

CV 14-26-BU-DWM

SHANE LOUIS BURD,
Petitioner,

ORDER
vs.
LEROY KIRKEGARD and ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
Petitioner Shane Louis Burd filed this action under 28 U.S.C. § 2254. He is
a state prisoner proceeding prose. Magistrate Judge Jeremiah Lynch entered
findings and recommendations on March 6, 2015, recommending the Court deny
Burd's petition for lack of merit. (Doc. 8.) Burd did not file objections to Judge
Lynch's findings and recommendation.
The Court reviews the findings and recommendations that are not
specifically objected to for clear error. McDonnell Douglas Corp. v. Commodore
Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). 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). The Court

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finds no clear error with Judge Lynch's determination that the petition should be
denied. Given the nature of Burd's claims, he should proceed under 42 U.S.C. §
1983 rather than 28 U.S.C. § 2254. Moreover, Burd cannot state a claim for
violation of federal law.
Accordingly, IT IS ORDERED that the Findings and Recommendation
(Doc. 8) is ADOPTED IN FULL. Burd' s Petition (Docs. 1, 2, 7) is DENIED for
lack of merit.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter by
separate document a judgment in favor of Respondents and against Petitioner.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that pursuant to Fed. R. App. P. 24(a)(3)(A),
the Court CERTIFIES that any appeal from this disposition would not be taken in
good faith.
Dated this

i

day of April, 2015.

lloy, District Judge
istrict Court

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