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, )

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.
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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.

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