Bearchild v. Kirkegard et al

Filing 7

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Petition 1 Denied. Certificate of appealability DENIED. Signed by Judge Dana L. Christensen on 1/30/2015. Mailed to Bearchild. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
CV 14-53-GF-DLC-RKS

DEWAYNE BEARCHILD,
Petitioner,

ORDER

vs.
LEROY KIRKEGARD; ATTORNEY
GENERALOFTHESTATEOF
MONTANA,

FILED
JAN 3 0 2015
Clel1<., U.S District Court
District Of Montana
Missoula

Respondent.

United States Magistrate Judge R. Keith Strong entered his Findings and
Recommendation on October 27, 2014 recommending that Bearchild's petition be
denied for lack of merit. Bearchild objected to the Findings and Recommendation
on November 7, 2014, and so the Court will conduct de nova review of the record.
28 U.S.C. § 636(b)(l). The portions of the findings and recommendations not
specifically objected to will be reviewed for clear error. McDonnell Douglas
Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).

"Where a petitioner's objections constitute perfunctory responses argued in an
attempt to engage the district court in a rehashing of the same arguments set forth
in the original habeas petition, the applicable portions of the findings and
recommendations will be reviewed for clear error." Rosling v. Kirkegard, 2014
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WL 693315 (D. Mont. 2014) (citations omitted). For the reasons listed below, the
Court adopts Judge Strong's Findings and Recommendation in full.
Bearchild was convicted of the crime of incest. Pursuant to his sentence, he
became eligible for parole on January 6, 2012. Bearchild waived his opportunities
to appear before the Board of Pardons and Parole ("the Board") in November
2011, May 2012, and August 2012. After his first appearance before the Board in
February 2013, the Board denied Bearchild's application for parole based on the
nature and severity of his offenses and the fact that he committed multiple
offenses. The Board did note that Bearchild should complete Phase II of the
treatment program and if so, may request an earlier rehearing of his application for
parole.
Bearchild objects to Judge Strong's Findings and Recommendation alleging
that the sentencing court conditioned his eligibility for parole on successful
completion of Phases I and II of the sex offender treatment program. He further
alleges that he is unable to complete the treatment program because he refuses to
admit to, and in fact denies involvement in, previous crimes he was not convicted
of and that it is the Board's policy and practice to deny parole for sex offenders
unless they successfully complete court ordered treatment. He states that this puts
him in the position of having to lie and falsely incriminate himself in violation of
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the Fifth Amendment.
First, the sentencing court did not condition Bearchild's eligibility for
parole on his successful completion of sex offender treatment. (Bearchild v.
Cobban, No. CV 14-31-H-DLC-RKS, Doc. 2-1 at 43.) Bearchild is eligible for

parole, however the Board has broad discretion to decide whether he can be
released. Mont. Code Ann.§ 46-23-201(1), (5). Second, the Board denied
Bearchild's application for parole based on the nature and severity of his offenses
and the fact that he committed multiple offenses, not on his failure to complete
treatment. (Bearchild v. Cobban, No. CV 14-31-H-DLC-RKS, Doc. 2-1 at 49.)
Third, Bearchild's allegations as stated do not raise the Fifth Amendment privilege
against self-incrimination. Bearchild is not invoking his right to remain silent, but
rather he is making an exculpatory statement. Lastly, because Bearchild was
convicted of the sex crime of incest in a prior adversarial setting, he has received
the minimum protections required by due process with regards to the Phase II
treatmentrecommendationoftheBoard. Nealv. Shimada, 131F.3d818,830-831
(9th Cir. 1997). There being no clear error in Judge Strong's remaining Findings
and Recommendation,
IT IS ORDERED that Judge Strong's Findings and Recommendation
(Doc. 5) are ADOPTED in full. Bearchild's petition (Doc. 1) is DENIED. A
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certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by separate
document a judgment in favor of Respondent and against Petitioner.
DATED this

301£.day of January,

Dana L. Christensen, Chief Judge
United States District Court

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