Berger v. Kirkegard et al
Filing
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 11 in full. Petition 1 DENIED as moot. A certificate of appealability is DENIED. Signed by Judge Brian Morris on 1/19/2016. Mailed to Berger. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
CV 15-67-GF-BMM
JEREMIAH F. BERGER,
Petitioner,
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS
vs.
LEROY KIRKEGARD, et al.,
Respondents.
Jerremiah F. Berger filed a petition seeking a writ of habeas corpus under 28
U.S.C. § 2254, on August 14, 2015. (Doc. 1.) Berger filed this motion pro se.
Berger’s term of imprisonment expired October 18, 2015.
United States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on December 8, 2015. (Doc. 11.) Judge Johnston
recommended that the Court deny as moot Berger’s petition. Judge Johnston also
recommended that the Clerk of Court be directed to enter, by separate document, a
judgment of dismissal. Lastly, Judge Johnston recommended that the Court deny a
certificate of appealability. Berger filed no objections to Judge Johnston’s Findings
and Recommendations. When a party makes no objections, the Court need not
review de novo the proposed Findings and Recommendations. Thomas v. Arn, 474
U.S. 140, 149-52 (1986). The Court will review Judge Johnston’s Findings and
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Recommendations, however, for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
I. Justiciability
Article III, § 2 of the United States Constitution requires a “case or
controversy” for justciability. An incarcerated person’s challenge to the validity of
his conviction satisfies the case or controversy requirement. See Spencer v.
Kemma, 523 U.S. 1, 7 (1998). A person who has already completed his sentence
presents a different situation. Id. at 14-18. A continuing injury “other than the nowended incarceration or parole—some ‘collateral consequence’ of the conviction—
must exist” to maintain the suit. Id. at 12 (quoting Lane v. Williams, 455 U.S. 624,
632 (1982)).
Berger has failed to establish collateral consequences to meet the case-orcontroversy requirement. Berger has served his entire sentence. Berger’s claims
arise from the actions leading to his revocation hearing, his subsequent placement,
and the sentence the Court imposed. Berger’s petition should be denied as moot.
II. Certificate of Appealability
“The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Rule 11(a), Rules Governing § 2254
Proceedings. A certificate of appealability should be issued when the petitioner
“makes a substantial showing of the denial of a constitutional right.” Berger has
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failed to make a substantial showing that he has been denied a constitutional right.
A certificate of appealability should be denied.
The Court finds no error in Judge Johnston’s Findings and
Recommendations, and adopts them in full.
Accordingly, IT IS ORDERED that:
1. Berger’s petition (Doc. 1) is DENIED as moot.
2. The Clerk of Court is directed to enter, by separate document, a judgment
of dismissal
3. A certificate of appealability is DENIED.
DATED this 19th day of January, 2015.
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