United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATION OF UNITED STATES
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE
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.
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.
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).
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
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
December 12, 2016, Schaff filed a "Motion to Obtain
District Court's Endorsement for a Treatment
Placement" in state district court. 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.)
Schaff s claims
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.
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.
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
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 ...