Kessel v. Dooley et al

Filing 14

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 12 in full. Petition 1 DISMISSED WITH PREJUDICE. Certificate of appealability DENIED. Signed by Judge Donald W. Molloy on 4/10/2014. Mailed to Kessel (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

FILED

APR 10 2014
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CV 13-52-H-DWM-RKS

JOHN KESSEL,
Petitioner,

vs.

ORDER

WARDEN KIRKEGARD,
MONTANA DEPARTMENT OF
CORRECTIONS, MONTANA
BOARD OF PARDONS AND
PAROLE, and the ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

This matter comes before the Court on the proposed Findings and
Recommendations entered by United States Magistrate Judge Keith Strong, (Doc.
12), regarding the Petition for writ of habeas corpus under 28 U.S.C. § 2254 filed
by John Kessel, (Doc. 1). Because Kessel is a prisoner, upon filing, this matter
was referred to Judge Strong. See L.R. 72.2(a). Judge Strong filed his proposed
Findings and Recommendations regarding the Petition on March 4, 2014. (Doc.
12 at 6.) "Within fourteen days after being served with a copy, any party may
serve and file written objections to such proposed findings and recommendations
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as provided by rules of court." 28 U.S.C. § 636(b)(1). Because the statutory
objections period states that a party may file objections within a specified time
after service of the findings and recommendations, and service ofthe Findings and
Recommendations at issue was made by mail and electronic means, three days are
added after the period would otherwise expire. See Fed. R. Civ. P. 6(d).
Accordingly, written objections to Judge Strong's proposed Findings and
Recommendations were due March 21, 2014. Kessel timely filed his Objections
on March 17,2014. (See. Doc. 13.)
The portions of Judge Strong's proposed Findings and Recommendations to
which Kessel objects are reviewed de novo, otherwise the report is reviewed for
clear error. When a party objects, the Court reviews the relevant portions of the
United States Magistrate Judge's proposed findings and recommendations de

novo. 28 U.S.C. § 636. When no party objects, the Court reviews the findings and
recommendations of a United States Magistrate Judge for clear error. McDonnell

Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.
1981). Clear error is present only if the 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).
Judge Strong's report contains no mistake of fact or law and will be adopted
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in-full. Kessel's Objections do not rejoin the analysis on two claims in Judge
Strong's proposed Findings and Recommendations. These claims are soundly
adjudicated in Judge Strong's report. Kessel's claim for relief regarding the
Montana Supreme Court's decision to deny his petition for a writ of review is
without merit. There is no basis for federal habeas corpus relief on this claim.
Kessel's claim regarding his confinement in South Dakota could have been raised
in his first petition for a writ of habeas corpus in this Court. The Court lacks
jurisdiction to consider this claim in this successive action.
Kessel's Objections relate to Judge Strong's finding that there is no
cognizable federal habeas claim for relief related to his claims about completion
of sexual offender treatment. Kessel claims he completed sexual offender
treatment while incarcerated in South Dakota and that the Montana State Prison
and Board ofPardons and Parole refuse to acknowledge his completion of that
program. (Doc. 13 at 1-2.) Kessel cites Fest v. Bartee, 804 F.2d 559 (9th Cir.
1986), in support of his argument. Fest, a case regarding the proper venue for a
habeas petition, does not support the claim Kessel advances in his Objections.

The determination of whether Kessel has completed the conditions of his sentence,
including any requirement that he complete sex offender treatment, is part of the
process for determining his eligibility for parole. In Montana, the Board of
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Pardons and Parole is permitted, but not required, to release an appropriate
prisoner on nonmedical parole. See Mont. Code Ann. § 46-23-201(1) and (5).
The responsibility for ensuring the constitutionality of the procedure for
considering parole lies with the State of Montana and not this Court. See

Swarthout v. Cooke, _

U.S. _ , 131 S.Ct. 859,863 (2011) (per curiam).

Federal habeas relief is not available on this claim. Because Kessel's claims are
plainly barred on these grounds and no reasonable jurist could disagree with this
Court's procedural ruling, a certificate of appealability is not warranted and will
be denied. See Gonzalez v. Thaler, _

U.S. _,132 S.Ct. 641,648 (2012)

(quoting Slack v. McDaniel, 529 U.S. 473,484 (2000)).
IT IS ORDERED:
(1) The proposed Findings and Recommendations entered by United
States Magistrate Judge Keith Strong, (Doc. 12), are ADOPTED IN­
FULL.
(2) The Petition for writ of habeas corpus brought by Petitioner John
Kessel, (Doc. 1), is DISMISSED WITH PREJUDICE.
(3) A certificate of appealability is DENIED. The Clerk of Court shall
immediately process any appeal filed by Petitioner Kessel.
(4) The Clerk of Court shall enter by separate document a judgment in
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favor of Respondents and against Petitioner, pursuant to Federal Rule
of Civil Procedure 58, and close this case.
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DATED this ~ day ofApril, 2014.

olloy, District Judge
District Court

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