United States District Court, D. Montana, Billings Division
TYLER L. HARDY, Petitioner,
ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondent.
ORDER and FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
CAROLYN S. OSTBY, Magistrate Judge.
On April 17, 2014, Petitioner Tyler Hardy filed this action under 28 U.S.C. § 2254. Hardy is a state prisoner proceeding pro se. In response to a letter from the Clerk of Court, on May 14, 2014, Hardy filed a formal petition, a motion to proceed in forma pauperis, and a motion for the appointment of counsel. On May 15, 2014, he supplemented his motion to proceed in forma pauperis.
The Court finds Hardy has sufficiently shown he cannot afford to pay all costs that may be associated with this action. The motion to proceed in forma pauperis will be granted. In light of the recommendation below, however, his motion for counsel is moot.
Hardy alleges that he has been held in custody and/or under supervision beyond the date when his sentence should have been discharged. Pet. Supp. (Doc. 3-1) at 2-4. Federal courts may not hear a claim made by a person convicted in state court unless the claim has first been fairly presented to the state courts, and an opportunity to present that claim remains available. In other words, if a state prisoner may proceed in state court rather than federal court, he must. See Rose v. Lundy, 455 U.S. 509, 520 (1982); Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002).
Hardy's petition states that he has not raised, in any state court at any time, the claim he asks this Court to consider. Pet. (Doc. 3) at 3-4 ¶¶ 6-12. As of May 14, 2014, the records of the Montana Supreme Court showed no case in Hardy's name, pending or closed. A state remedy is available to Hardy. Mont. Code Ann. § 46-22-101; see also Pet. at 6 ¶ 15(f). Because Hardy may proceed in state court, the federal petition should be dismissed without prejudice.
"The district court must issue or deny a certificate of appealability [COA] when it enters a final order adverse to the applicant." Rule 11(a), Rules Governing § 2254 Proceedings. A COA should issue as to those claims on which the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Where a claim is dismissed on procedural grounds, the court must also decide whether "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 648 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Because Hardy has not presented his claim in the state courts, and because he still may, dismissal is appropriate. A COA is not warranted.
Based on the foregoing, the Court enters the following:
1. Hardy's motion to proceed in forma pauperis (Doc. 4) is GRANTED. The Clerk of Court shall waive payment of the filing fee for this action.
2. Hardy's motion for the appointment of counsel (Doc. 5) is MOOT.
The Court also enters the following:
1. The Petition (Docs. 1, 3) should be DISMISSED.
2. The Clerk of Court should be directed to enter, by separate document, a ...