Devon v. Batista et al

Filing 7

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Petition 1 is DENIED for lack of merit A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 8/5/2016. Mailed to Devon. (TAG, )

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

CV 16-29-H-DLC-JTJ
JOHNNY DEVON,
Petitioner,

ORDER

vs.
MIKE BATISTA, ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
United States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on June 1, 2016, recommending denial and
dismissal of Petitioner Johnny Devon's ("Devon") application for writ of habeas
corpus under 28 U.S.C. § 2254. Devon timely filed an objection and is therefore
entitled to de novo review of those Findings and Recommendations to which he
specifically objects. 28 U.S.C. § 636(b )(1 )(C). This Court reviews for clear error
those findings and recommendations to which no party objects. See McDonnell

Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.
1981); Thomas v. Arn, 474 U.S. 140, 149 (1985). "Clear error exists ifthe Court
is left with a definite and firm conviction that a mistake has been committed."
-1-

United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
Having reviewed Devon's "objection," the Court finds that it fails to find
fault with Judge Johnston's Findings and Recommendations. Instead, Devon
argues that his rights were violated by the lack of due process concerning his
parole plan. Devon contends that the State should have given him more assistance
in producing a suitable parole plan. (Doc. 6 at 2.)
However, under habeas review, Devon must show that "he is in custody in
violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §
2254(a). Devon has failed to do so. As discussed by Judge Johnston, the State
provided the minimal procedural requirements under the Constitution. Devon was
provided an opportunity to be heard.and an explanation why his parole was
rescinded. Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (prisoner "received
adequate process when he was allowed an opportunity to be heard and was
provided a statement of the reasons why parole was denied"). As such, Devon's
objection will be overruled.
IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 5) are
ADOPTED IN FULL.
(2) Devon's petition (Doc. 1) is DENIED for lack of merit.
-2-

(3) The Clerk of Court is directed to enter, by separate document, a
judgment of dismissal.
(4) A certificate of appealability is DENIED
DATED this

'>~day of August, 20

6.

Dana L. Christensen, Chief Judge
United States District Court

-3-