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Burd v. Kirkegard

United States District Court, D. Montana, Butte Division

April 9, 2015

SHANE LOUIS BURD, Petitioner,
v.
LEROY KIRKEGARD and ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

ORDER

DONALD W. MOLLOY, District Judge.

Petitioner Shane Louis Burd filed this action under 28 U.S.C. § 2254. He is a state prisoner proceeding prose. Magistrate Judge Jeremiah Lynch entered findings and recommendations on March 6, 2015, recommending the Court deny Burd's petition for lack of merit. (Doc. 8.) Burd did not file objections to Judge Lynch's findings and recommendation.

The Court reviews the findings and recommendations that are not specifically objected to for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists ifthe Court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). The Court finds no clear error with Judge Lynch's determination that the petition should be denied. Given the nature of Burd's claims, he should proceed under 42 U.S.C. § 1983 rather than 28 U.S.C. § 2254. Moreover, Burd cannot state a claim for violation of federal law.

Accordingly, IT IS ORDERED that the Findings and Recommendation (Doc. 8) is ADOPTED IN FULL. Burd's Petition (Docs. 1, 2, 7) is DENIED for lack of merit.

IT IS FURTHER ORDERED that the Clerk of Court is directed to enter by separate document a judgment in favor of Respondents and against Petitioner.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that pursuant to Fed. R. App. P. 24(a)(3)(A), the Court CERTIFIES that any appeal from this disposition would not be taken in good faith.


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