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Schaff v. State

United States District Court, D. Montana, Billings Division

December 18, 2017

SUSAN MAKI SCHAFF, Petitioner,
v.
STATE OF MONTANA, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE

         This case comes before the Court on Petitioner Susan Maki Schaff s application for writ of habeas corpus under 28 U.S.C. § 2254. Schaff is a state prisoner proceeding pro se.

         Schaff challenges a conviction for felony Driving Under the Influence, imposed in the Thirteenth Judicial District, Yellowstone County, Montana, on September 22, 2015 (Cause No. DC-15-095). (Doc. 1 at 2.) Schaff pled guilty and was sentenced to serve fifteen years. The sentence was ordered to run consecutively to any sentence she was already serving. Id. at 2-3 ¶¶ 1-5.

         Schaff s present petition was filed on September 22, 2017. Because it appeared that Schaff s petition may have been untimely and procedurally defaulted, Schaff was ordered to show cause as to why her petition should not be dismissed. (Doc. 3.) Schaff responded. (Doc. 4.) Upon further review of Schaff s petition and corresponding documents, it appears Schaff is not entitled to relief on the merits of the claims she advances. Although Schaff s petition is still likely time-barred and procedurally defaulted, at this juncture it is more efficient to proceed to the merits. See 28 U.S.C. §2254(b)(2); Lambrix v. Singletary, 520 U.S. 518, 525 (1997).

         I. Procedural History

         As set forth in the Court's prior order, Schaff did not file a direct appeal, but she did subsequently apply for relief with the Sentence Review Division (SRD). (Doc. 1 at 3, ¶¶8-13.) No change was made to Schaff s sentence. The SRD decision affirming Schaff s sentence was filed on May 12, 2016.[1]

         During this same time period, Schaff also appeared before the Montana Board of Pardons and Parole. Although Schaff was not released to parole, the Board did allow for the commencement of her consecutive sentence imposed in DC-15-095.[2]

         On December 12, 2016, Schaff filed a "Motion to Obtain District Court's Endorsement for a Treatment Placement" in state district court.[3] Schaff s motion was apparently accompanied by an affidavit and letters of support. On March 21, 2017, state District Court Judge Rod Souza sent Schaff a letter commending the rehabilitative progress she had made, but advising Schaff that the trial court had no authority to order her placement in a particular program, and that such decision was solely within the purview of the Parole Board. (Doc. 1 at 25.)

         II. Schaff s claims

         In her present petition before this Court, Schaff alleges: (1) there is an inaccurate entry in her criminal judgment for Cause No. DC-15-095, wherein the conviction is referenced as her "fourth felony DUI, " (Doc. 1 at 4, ] l5(A); 14); (2) she was denied parole placement in a treatment facility in contravention of the judgment, id. at 5, fl5(B); 14; and (3) there is an inaccurate claim in the Presentence Investigation report (PSI) relative to the number of her prior DUI convictions, id. at 5, |f 15(C); 15. Schaff asks this Court to review and reduce the sentence she received, and provide an endorsement for her placement in a treatment facility. Id. at 8, ¶18; 16.

         III. Analysis

         A state prisoner is entitled to federal habeas relief only if she is being held in custody in violation of the constitution, laws, or treaties of the United States. 28 U.S.C. §2254(a.) Rule 2(c) of the Rules Governing Section 2254 Cases requires a federal habeas petition to specify all grounds for relief and "state the facts supporting each ground." Claims based on conclusory allegations are not a sufficient basis for federal habeas relief. See, Mayle v. Felix, 545 U.S. 644, 655-56 (2005). Unless an issue of federal constitutional or statutory law is implicated by the facts presented, the claim is not cognizable under federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 68 (1991). As discussed below, Schaff has not alleged a cognizable federal claim. Therefore, her petition should be denied for lack of merit.

         In her present petition, Schaff does not identify the federal basis for her claim. To the extent Schaff intends to assert a due process claim, the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that a state shall not "deprive any person of life, liberty, or property, without due process of law [.]" U.S. Const. Amend. XIV, § 1. Thus, to state a due process violation an individual must establish the existence of a constitutionally recognized liberty interest that is protected by the Due Process Clause, and must demonstrate the procedures afforded the individual for the protection of the liberty interest were constitutionally deficient. Kentucky Dept of Corrections v. Thompson, 490 U.S. 454, 460 (1989). "Protected liberty interests may arise from two sources - the Due Process Clause itself and the laws of the States." Id. (quotation and citation omitted). Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (stating that a protected liberty interest could "arise from the Constitution itself, [. ..or] from an expectation or interest created by state laws or policies.").

         The Due Process Clause itself does not create a federal right to release on parole. Swarthout, 562 U.S. at 222. While state law may create a liberty interest in parole, it is a state interest created by state law. Id. When a state creates such a liberty interest, however, the Due Process Clause requires procedural fairness. Id. With respect to parole, an inmate is constitutionally entitled only to an opportunity to be heard, and a statement of reasons why parole was denied. Id. Schaff ...


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