DONALD W. MOLLOY, District Judge.
Petitioner Marty Evans is a state prisoner proceeding pro se. He petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Mr. Evans was convicted by jury trial in Montana's Twentieth Judicial District Court, Lake County of one count of attempted sexual assault on a minor, in violation of Montana Code Annotated § 45-4-103(1) and § 45-5-502, and one count of indecent exposure, in violation of Montana Code Annotated § 45-5-504(1). For the attempted sexual assault, Mr. Evans was sentenced to fifty years in prison with twenty years suspended. On the indecent exposure charge, he was sentenced to six months, to run concurrent with his prison term for the attempted sexual assault. Mr. Evans appealed to the Montana Supreme Court, but decided to voluntarily dismiss his appeal on April 7, 2010. He sought post-conviction relief in the trial court on June 10, 2010. That petition was denied September 10, 2010 and Mr. Evans did not elect to appeal that judgment to the Montana Supreme Court. Mr. Evans sought review of his sentence before the Montana Supreme Court Sentence Review Division on October 21, 2010. His sentence was affirmed on June 2, 2011. Other pertinent facts are set forth in this Court's previous Order adopting Findings and Recommendations, (doc. 33), and will be recited here only as necessary.
Mr. Evans filed this petition on August 15, 2011. Pursuant to Local Rule, the petition was referred to United States Magistrate Judge Jeremiah C. Lynch. See D. Mont. L. R. 73.1(a)(1) (Dec. 1, 2010). Judge Lynch ordered Mr. Evans to show cause why the claims in his petition should not be dismissed for procedural default. (Doc. 11.) Mr. Evans responded, (docs. 18, 19), and most of his claims were then addressed on the merits. On October 31, 2012, the Court adopted Judge Lynch's findings and recommendation that all but two of Mr. Evans' claims be denied. (Doc. 33.) The state was required to file an Answer regarding two claims related to Mr. Evans' sentence. The state filed its Answer and also moved to dismiss the claims. (Docs. 30, 31.) Mr. Evans filed a Reply and Response on November 5, 2012. (Doc. 34.) The state filed a Reply in support of its Motion to Dismiss on November 15, 2012. (Doc. 35.)
A consent election was conducted after the state filed its Answer and Motion to Dismiss, ( see doc. 39), but one or the other party, or both, objected, so the matter was re-referred to Judge Lynch for Findings and Recommendations, ( see doc. 40). While consent is required to refer dispositive matters to a United States Magistrate Judge for final judgment, referral for consideration and submission to an Article III Judge on Findings and Recommendations does not require consent of the parties. 28 U.S.C. § 636(b)(1). The case now before the Court for de novo review of the portions of Judge Lynch's Findings and Recommendations to which Mr. Evans objects, pursuant to 28 U.S.C. § 636(b)(1).
The state was ordered to answer Claims G and J presented in Mr. Evans' petition. ( See doc. 22 at 24.) In Claim G, Mr. Evans seeks a writ of habeas corpus based on the alleged disproportionality of his sentence, in violation of the Eighth Amendment. Specifically, he argues that the sentence imposed by the state district court is overly excessive in light of the crimes with which he was charged and of which he was convicted. In Claim J, Mr. Evans seeks the writ because he was allegedly forced to incriminate himself while his case was on appeal and while he was contemplating collateral attack to the judgment, in violation of the Fifth Amendment. Specifically, he argues his participation in sex offender treatment, as ordered by the judgment of the state district court, required him to admit his guilt of the crimes with which he was charged and of which he was convicted. Following review of the state's Answer and Motion to Dismiss and Mr. Evans' response, Judge Lynch recommends both claims be dismissed. ( See doc. 41 at 9-10.)
Mr. Evans timely filed Objections, (doc. 42), to Judge Lynch's Findings and Recommendations. His Objections relate to the claims addressed in Judge Lynch's Findings and Recommendations and present new arguments not found in the Petition. Mr. Evans' Objections are now considered in turn.
I. The Court exercises its discretion to address, but not consider on-merits, new arguments raised by Petitioner in his Objections.
Mr. Evans asserts that the counsel appointed for direct review of his state conviction and for his sentence review proceedings provided ineffective assistance. (Doc. 42 at 1-2.) He also claims he has been denied access to an adequate law library. (Doc. 42 at 7.) These lines of argument are independent claims for relief not raised in Mr. Evans' original Petition. These claims do not relate to either Claim G (proportionality) or Claim J (self-incrimination) now at issue.
While a court is not required to consider evidence or argument presented for the first time in objections to a United States Magistrate Judge's Findings and Recommendations, it must actually confront the new argument and decide whether it is appropriate to entertain it. Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002). Pursuant to United States v. Howell, a court reviewing objections must exercise its discretion to consider new arguments. 231 F.3d 615, 621 (9th Cir. 2000). Reasoned application of this discretion demands consideration of a litigant's pro se status. Akhtar v. Mesa, 698 F.3d 1202, 1208-09 (9th Cir. 2012). "Prisoner pro se pleadings are given the benefit of liberal construction." Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
Mr. Evans is a state prisoner proceeding pro se. In light of his status as a pro se litigant, the Court exercises its discretion and will consider new arguments presented for the first time in his Objections. Leave to amend the Petition to assert these claims will not be granted, however, as amendment to assert this claim would be futile. See Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999) ("Where the legal basis for a cause of action is tenuous, futility supports the refusal to grant leave to amend."). 28 U.S.C. §§ 2254(b), (c) require a federal district court to dismiss claims raised in a petition for habeas corpus that have not been exhausted in state courts. The United States Supreme Court's strict interpretation of the exhaustion requirement in Rose v. Lundy is illustrative:
[O]ur interpretation of §§ 2254(b), (c) provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court. Just as pro se petitioners have managed to use the federal habeas machinery, so too should they be able to master this straightforward exhaustion requirement. Those prisoners who misunderstand this requirement and submit mixed petitions nevertheless are entitled to resubmit a petition with only exhausted claims or to exhaust the remainder of their claims.
455 U.S. 509, 520 (1982). Mr. Evans has not affirmatively stated that state remedies for these claims have been exhausted. A review of the docket of the Montana Supreme Court reveals that he apparently has not filed these claims with the Montana Supreme Court. Amendment of the petition to assert these claims would be futile, as they have not met the exhaustion requirement. Accordingly, Mr. Evans' claims raised for the first time in his Objections, claiming ineffective ...