Bailey v. Batista et al

Filing 4

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 3 in full. Petition 1 DENIED. Certificate of appealability DENIED. Signed by Judge Brian Morris on 4/19/2016. Mailed to Bailey. (TAG, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA GREAT FALLS DIVISION CV 16-24-GF-BMM-JTJ D’WAYNE BAILEY, Petitioner, ORDER ADOPTING MAGISTRATE’S FINDINGS AND RECOMMENDATIONS vs. LEROY KIRKEGARD, DOUGLAS FENDER, MIKE BATISTA, et. al., Respondents. The Court agrees with Judge Johnston that 28 U.S.C. § 2254 fails to represent the proper vehicle to attempt to secure the relief that Bailey seeks. Bailey has another action pending before this Court, which the Court has construed as a civil action under 42 U.S.C. § 1983. Bailey may file an amended complaint in that matter. He should include all the claims he wishes to make, including his due process/denial of property claim. The Court also agrees with the Magistrate that it lacks jurisdiction over the instant claims when styled as a habeas petition. The Court will dismiss the petition. (Doc. 1.) The Court will deny a certificate of appealability. Therefore, it is HEREBY ORDERED that Judge Johnston’s Order and Findings and Recommendations (Doc. 3) is ADOPTED IN FULL. 1 IT IS FURTHER ORDERED that: (1) The Petition (Doc. 1) shall be DENIED for lack of jurisdiction; (2) The Clerk of Court shall enter by separate document a judgment in favor of Respondents against Petitioner; and (3) A certificate of appealability shall be DENIED. DATED this 19th day of April, 2016. 2

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