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)

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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 -1- 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 -2-

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