The opinion of the court was delivered by: Dana L. Christensen United States District Judge
On March 27, 2012, Petitioner Melvin Lee Gatlin filed this action seeking a writ of habeas corpus under 28 U.S.C. § 2254. Gatlin is a state prisoner proceeding pro se. On June 21, 2012, Respondent ("the State") was ordered to file certain documents from the state court record. It complied on July 17, 2012. On August 10, 2012, Gatlin filed a Supplement.
Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts requires courts to examine the petition before ordering the respondent to file an answer or any other pleading. The petition must be summarily dismissed "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Id.
A petitioner "who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review." Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) ("Nicolaus") (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). Consideration under Rule 4 "may properly encompass any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions. The judge may order any of these items for his consideration if they are not yet included with the petition." Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases. "[I]t is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Id.; see also 28 U.S.C. § 2243.
On December 4, 2007, two casinos in Missoula reported robberies. About two hours later -- a little more than the time it takes to drive from Missoula to Butte -- someone robbed a Thriftway store in Butte. The description of the man and the car involved in the Missoula robberies matched the description of the man and the car involved in the Butte robbery. Law enforcement spotted the vehicle. After a chase ending in Jefferson County, the man was arrested and taken to the Butte-Silver Bow County jail. He was identified as Melvin Lee Gatlin and charged with robbery in Butte-Silver Bow County. See State v. Gatlin, 219 P.3d 874, 876 ¶¶ 5-6 (Mont. 2009).
On December 10, 2007, Gatlin was charged by complaint in Missoula County's Justice Court, see Mont. Code Ann. §§ 3-10-303(1)(e), 46-6-201 (2007), and an arrest warrant was issued, Warrant (doc. 1-1 at 16). The day after Gatlin was served with the Missoula warrant at the Butte-Silver Bow County jail, he appeared in Butte-Silver Bow County Justice Court. The justice of the peace failed to advise him of his right to counsel on the Missoula County charges. Gatlin was returned to the Butte-Silver Bow County jail, where he remained for the course of the Butte prosecution.
Gatlin pled no-contest to the Butte robbery and, on May 8, 2008, he was sentenced to serve five years in prison. On the same day, he was transported to Missoula County.*fn1 He appeared in Missoula County Justice Court on May 9, 2008. About two weeks later, the State filed an Information in the district court.
Gatlin moved to dismiss the Information because there was no preliminary examination, because the Information was not filed within a reasonable time after the non-existent preliminary examination, and because he was not advised of his right to counsel at his initial appearance in Butte-Silver Bow County on the Missoula charges. The trial court denied the motion.
Gatlin pled guilty pursuant to a plea agreement that preserved his right to appeal the denial of his motion to dismiss. On November 12, 2008, he was sentenced to serve twenty-five years in prison, with ten suspended, concurrent to the sentence in the Butte case. Sentencing Tr. at 120:11-121:14, State v. Gatlin, No. DC-08-247 (Mont. 4th Jud. Dist. Nov. 12, 2008) (doc. 7-1 at 31).
Gatlin appealed. The Montana Supreme Court agreed with him that the Missoula County charges must be dismissed because the Butte-Silver Bow County justice of the peace failed to advise Gatlin of his right to counsel. Gatlin, 219 P.3d at 877 ¶¶ 17-23 (citing Mont. Code Ann. § 46-7-102). But the court held that dismissal should be without prejudice, reasoning that Gatlin had not shown how his defense was prejudiced by lack of counsel on the Missoula County charges between December 2007 and May 2008. Id. at 878-79 ¶¶ 24-29. Gatlin's conviction was reversed and the case was remanded for dismissal of the Information without prejudice. Id. at 879 ¶ 31.
The State filed a new Information. Gatlin again pled guilty and, this time, was sentenced to ten years in prison on both counts, concurrent with the Butte sentence. Pet. at 2 ¶ 4. He later filed a petition for post-conviction relief. On December 6, 2011, the Montana Supreme Court affirmed the trial court's denial of post-conviction relief.
Gatlin timely filed his federal habeas petition on March 25, 2012. 28 U.S.C. § 2244(d)(1)(A); Clay v. United States, 537 U.S. 522, 532 (2003); Bowen v. ...