Buehl v. Fox et al

Filing 5

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. COA DENIED. Signed by Judge Brian Morris on 8/15/2018. Mailed to Buehl (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
LANNY WADE BUEHL,
Petitioner,

CV-18-70-H-BMM

vs.
ORDER
TIM FOX, ATTORNEY GENERAL
OF THE STATE OF MONTANA;
R JONES,
Respondents.
Petitioner Lanny Buehl (Buehl) has filed a Petition seeking a writ of habeas
corpus under 28 U.S.C. § 2254. (Doc. 1). Buehl is a state prisoner proceeding pro
se.
Buehl was arrested on February 1, 2018, for violating the terms of his parole
on a sentence imposed by Montana’s Ninth Judicial District Court, Glacier, County.
A preliminary hearing was conducted on February 7, 2018. Buehl’s parole was
revoked by the Montana Board of Pardons in March of 2018. Buehl alleges that the
preliminary hearing was conducted in a manner that violated his right to due
process. (Doc. 1 at 4). Buehl requests that this Court reinstate his parole. (Doc. 1
at 7). Buehl acknowledges that he has not presented his due process claim to the
Montana Supreme Court. (Doc. 1 at 4).

United States Magistrate Judge John Johnston issued Findings and
Recommendations in this matter on June 29, 2018. (Doc. 4). Judge Johnston
recommended that Buehl’s Petition be dismissed because Buehl had not yet
exhausted his state court remedies. (Doc. 4 at 3-5). Buehl did not file objections to
Judge Johnston’s Findings and Recommendations.
The Court has reviewed Judge Johnston’s Findings and Recommendations
for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656
F.2d 1309, 1313 (9th Cir. 1981). The Court finds no error in Judge Johnston’s
Findings and Recommendations, and adopts them in full. A review of Buehl’s
Petition reveals that he has not sought appellate relief in state court. This Court
cannot review Buehl’s Petition until he has exhausted his state court remedies. See
Rose v. Lundy, 455 U.S. 509, 518-522 (1982).
Accordingly, IT IS ORDERED:
1.

Buehl’s Petition (Doc. 1) is DISMISSED without prejudice

for failure to exhaust state court remedies.
2.

A certificate of appealability is DENIED. Buehl has not made a

substantial showing that he was deprived of a constitutional right. Reasonable
jurists would agree that Buehl has failed to exhaust his state court remedies.

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3.

The Clerk is directed to enter judgment accordingly.

DATED this 15th day of August, 2018.

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