IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION

JOHN DANIEL FAILS,

Cause no. CV 21-94-H-BMM-KLD Petitioner,

vs. ORDER ADOPTING

MAGISTRATE JUDGE’S BOARD OF PARDONS AND FINDINGS AND PAROLE; JIM SALMONSEN; RECOMMENDATIONS ATTORNEY GENERAL OF THE STATE OF MONTANA,

Respondents.

Petitioner John Daniel Fails (“Fails”) filed this action against the Board of Pardons and Parole as well as the Attorney General of Montana under

, alleging various Due Process violations associated with his incarceration. (Doc. 1.) United States Magistrate Judge Kathleen L. DeSoto entered her Findings and Recommendations in this case on March 29, 2022. (Doc. 4.) Judge DeSoto recommended that this matter should be dismissed without prejudice for failure to exhaust Fails’s available state court remedies. (Doc. 4 at 4.) Federal courts may not grant a writ of habeas corpus brought by an individual in custody pursuant to a state court judgment unless “the applicant has exhausted the remedies available in the courts of the State.”

(b)(1)(A). Fails filed an objection to the Findings and Recommendations on April 10, 2022. (Doc. 5.) The Court reviewed Judge DeSoto’s Findings and Recommendations and adopts them in full for the reasons discussed below.

The Court reviews de novo those findings and recommendations to which a party timely objected.

(b)(1)(C). Where a party’s objections constitute perfunctory responses argued in an attempt to engage the district court in

a relitigation of the same arguments set forth in the complaint, however, the Court reviews for clear error the applicable portions of the findings and recommendations. Rosling v. Kirkegard,

, at *3 (D. Mont. Feb. 21, 2014). The Court also reviews for clear error the portion of the Findings and Recommendations to

which the party did not specifically object. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,

(9th Cir. 1981). Fails objects to Judge DeSoto’s determination that Fails failed to exhaust his

state court remedies. (Doc. 5 at 2.) Fails points to

(b) to argue that there are “absolutely no rights to appeal, grieve and/or challenge a decision by the Board of Pardons and Parole in the State of Montana for the parole revocation process.” (Doc. 5 at 2.) Fails appears to disregard the available State remedies

referenced by Judge DeSoto when making his argument. Judge DeSoto points out that “Mr. Fails did not file a direct appeal, did not seek review of his sentence from the Montana Sentence Review Division, did not file a petition for postconviction

relief, and did not seek habeas corpus relief.” (Doc. 4 at 3.) Fails’s objections otherwise advance the same arguments that he set forth previously and he has not yet made a substantial showing that he was deprived of a federal constitutional right. The Court reviewed Judge DeSoto’s Findings and Recommendations for clear error. See Rosling,

at *3. The Court finds no error. Accordingly, IT IS ORDERED that: 1. Judge DeSoto’s Findings and Recommendations (Doc. 4) are ADOPTED IN FULL. 2. Fails’s Petition (Doc. 1) is DISMISSED without prejudice as unexhausted. 3. The Clerk of Court shall enter judgment of dismissal. DATED this 3rd day of August, 2022.

( he . Wy, / ain AHu— Brian Morris, Chief District Judge SS United States District Court