Bruse v. Green et al
Filing
8
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Bruse's petition 1 is DENIED and DISMISSED. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 6/3/2015. Mailed to Bruse. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
FILED
JUN 0 3 2015
Cler!<. (!.S District Court
~OfMontana
CV 14-245-M-DLC-JC~ia
ROBERT BRUSE,
Petitioner,
ORDER
vs.
TOM GREEN; TIM FOX,
Respondents.
United States Magistrate Judge Jeremiah C. Lynch entered Findings and
Recommendation on March 11, 2015 recommending that Bruse's petition be
denied and dismissed. Bruse objected to the Findings and Recommendation and
the Court will conduct de novo review of the record. 28 U.S.C. § 636(b)(l). The
portions of the findings and recommendations not specifically objected to will be
reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). "Where a petitioner's objections
constitute perfunctory responses argued in an attempt to engage the district court
in a rehashing of the same arguments set forth in the original habeas petition, the
applicable portions of the findings and recommendations will be reviewed for
clear error." Rosling v. Kirkegard, 2014 WL 693315 (D. Mont. 2014) (citations
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omitted). For the reasons listed below, the Court adopts Judge Lynch's Findings
and Recommendation in full.
Bruse was convicted in 2012 of sexual intercourse without consent and
incest. He is currently serving a 5-year term of incarceration for each conviction,
running concurrently. In his petition for writ of habeas corpus before this Court,
Bruse alleges that he did not receive his initial parole hearing by his January 18,
2014 eligibility date and that he did not receive his initial parole hearing in a
timely manner. Judge Lynch found that the Department of Corrections has
discretion as to when it presented Bruse for his initial parole hearing, and the fact
that it was not held within 2 months prior to his eligibility date does not alone
constitute a due process violation. Further, Judge Lynch found that Bruse was
given an initial parole hearing in June 2014 and because an initial hearing is the
only relief available to him in this case, his habeas relief is now moot.
Bruse's objections are all based on the assertion that the Montana Supreme
Court ordered his initial parole hearing to be held on January 18, 2014, citing the
Court's August 27, 2013 opinion. Bruse v. Green, OP 13-0398 (August 27, 2013
Order, Montana Supreme Court). Review of that opinion reveals, however, that
the Montana Supreme Court merely stated that an affidavit from the supervisor of
Prison Records reflected a corrected parole eligibility date of January 18, 2014.
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Based upon that correction, the Court denied Bruse's habeas corpus petition. Id.
The August 27, 2013 opinion did not include any indication that Bruse's initial
parole hearing be held on his eligibility date. Bruse does not raise any reasons in
his petition or his objections why the delay in the hearing was both unreasonable
and prejudicial.
Bruse also objects to Judge Lynch's recommendation that a certificate of
appealability be denied. Bruse has failed to make a substantial showing of a
denial of a constitutional right. The Department of Corrections discretionary
decision to hold his initial parole hearing after his eligibility date alone is not
sufficient to constitute a constitutional due process violation. His only relief, an
initial parole hearing, already took place in June, 2014. The law underlying
Bruse's claims is well settled and not subject to reasonable debate among jurists.
A certificate of appealability is denied.
There being no clear error in Judge Lynch's remaining Findings and
Recommendation,
IT IS ORDERED that Judge Lynch's Findings and Recommendation
(Doc. 5) are ADOPTED IN FULL. Bruse's petition (Doc. 1) is DENIED and
DISMISSED. A certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by separate
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document a judgment in favor of Respondent and against Petitioner.
DATED this
·3(~ day of June, 201
.
Dana L. Christensen, Chief Ju ge
United States District Court
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