Weller v. Fletcher et al

Filing 5

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 10/20/2017. Mailed to Weller (TAG)

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

FILED
OCT 2 0 2017
Clerk, U.S Diatrict Court
District Of Montana
Missoula

CV 17-90-H-DLC-JTJ

SHAWN HOWARD WELLER,
Petitioner,

ORDER
vs.
MICHAEL FLETCHER, ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
United States Magistrate Judge John T. Johnston entered his findings and
recommendations in this case on September 15, 2017, recommending denial of
Petitioner Shawn Howard Weller's ("Weller") petition for writ of habeas corpus
under 28 U.S.C. § 2254. Weller failed to timely object to the findings and
recommendations, and so waived the right to de nova review of the record. 28
U.S.C. § 636(b )(1 ). The Court will therefore review the record for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981 ).
Judge Johnston found, and this Court agrees, that Weller's petition should
be denied for it being successive in nature and for it lacking merit. Weller's claim

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challenging his 2012 revocation is untimely and successive. Further, the claim
challenging a purported error in Judge Dayton's order and the denial of parole is
not cognizable in a habeas petition and lacks merit.
Accordingly, IT IS ORDERED that Judge Johnston's Findings and
Recommendations (Doc. 4) are ADOPTED IN FULL. Weller's Petition (Doc. 1)
is DENIED and this matter DISMISSED. The Clerk of Court shall enter, by
separate document, a judgment in favor of Respondents and against Petitioner. A
certificate of appealability is DENIED.
DATED this ],..0-l-lltday of October, 2017.

Dana L. Christensen, Chief Judge
United States District Court

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