United States District Court, D. Montana, Missoula Division
L. CHRISTENSEN, UNITED STATES DISTRICT CHIEF JUDGE
States Magistrate Judge Jeremiah C. Lynch entered Findings
and Recommendations in this case on April 6, 2017,
recommending that Plaintiff Dale Michael Hanson's
("Hanson") petition under 28 U.S.C. § 2254 for
writ of habeas corpus be dismissed as unexhausted and
procedurally defaulted without excuse. Hanson timely filed an
objection to the findings and recommendations, and so is
entitled to de novo review of those findings and
recommendations to which he specifically objects. 28 U.S.C.
§ 636(b)(1)(C). This Court reviews for clear error those
findings and recommendations to which no party objects.
See McDonnell Douglas Corp. v. Commodore Bus. Mack,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v.
Am, 474 U.S. 140, 149 (1985). Clear error exists if the
Court is left with a "definite and firm conviction that
a mistake has been committed." United States v.
Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations
reviewed Adams' objections, the Court finds that Hanson
did not exhaust his state court remedies with respect to his
current custody. A federal district court cannot review a
habeas claim unless the prisoner has exhausted all state
remedies. 28 U.S.C. § 2254(c). Here, Hanson has an
ongoing case pending in the Montana state court system. Thus,
the Court agrees with Judge Lynch that dismissal without
prejudice is appropriate and that Hanson may return to this
Court if and when he fully exhausts his state claims relative
to his current custody.
"a federal habeas court will not review a claim rejected
by a state court 'if the decision of [the state] court
rests on a state law ground that is independent of the
federal question and adequate to support the
judgment.'" Beard v. Kindler, 558 U.S. 53,
55 (2009), (quoting Coleman v. Thompson, 501 U.S.
722, 729 (1991)). This doctrine bars habeas relief when (1)
"a state court [has] declined to address a
prisoner's federal claims because the prisoner had failed
to meet a state procedural requirement, " and (2)
"the state judgment rests on independent and adequate
state procedural grounds." Coleman, 501 U.S. at
729-30. A claim is barred from federal review unless the
petitioner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice. Id.
state post-conviction petition was dismissed with prejudice
as a sanction for his repeated failure to appear at scheduled
depositions, failure to adhere to court orders, and because
he had an outstanding warrant for his arrest. Montana law
allows this type of sanction. Xu v. McLaughlin Research
Inst, for Biomedical Set, Inc., 119 P.3d 100, 105 (Mont.
2005). This state rule is firmly established under Montana
law and does not implicate federal law. Thus, the Court
agrees with Judge Lynch's finding that the Montana
Supreme Court's decision to dismiss Hanson's case
with prejudice meets the adequate criteria.
the "cause" standard requires Hanson to show
"that some objective factor external to the defense
impeded counsel's efforts to comply with the State's
procedural rule." Murray v. Carrier, 477 U.S.
478, 488 (1986). Hanson contends that Flathead County
Attorney Ed Corrigan's actions were the external factors
that interfered with Hanson's efforts to comply with the
State's procedural rule. (Doc. 12 at 4.) This is the same
argument made before Judge Lynch. The Court concurs with
Judge Lynch that Hanson did not meet his burden to show cause
because his actions are what caused the state sanctions.
Court also finds that no miscarriage of justice occurred
here. "The miscarriage of justice exception to cause
serves as 'an additional safeguard against compelling an
innocent man to suffer an unconstitutional loss of
liberty.'" McCleskey v. Zant, 499 U.S. 467,
495 (1991). "Actual innocence" means factual
innocence, not a mere legal insufficiency. Bousley v.
United States, 523 U.S. 614, 623-624 (1998). Actual
innocence "must be supported by new reliable evidence
that was not presented at trial, evidence obviously
unavailable in the vast majority of cases." Schlup
v. Delo, 513 U.S. 298, 299 (1995). Hanson argues that
the newly discovered evidence consisting of three witnesses
regarding exculpatory information that the prosecution
suppressed at the time of trial. After further review, the
Court finds that the three witness statements were not
suppressed and that Hanson had knowledge of these potential
witnesses at the time of trial. Further, the Court finds that
the testimony of these witnesses is cumulative to the
evidence presented at trial. Consequently, Hanson has not met
his burden under Schlup to prove his actual
12, 2017, Hanson moved the Court to reconsider its Order
denying his motion to appoint counsel. The Court concurs with
Judge Lynch that this case is not unusually complex and that
due process will not be violated if counsel is not appointed.
Pursuant to 18 U.S.C. § 3006A, Hanson has been able to
effectively articulate his claims pro se. However, there is
no likelihood of success on the merits. The Court already
determined that Hanson is unable to meet his burden to prove
a constitutional violation occurred in his original
conviction or the current charges.
the Court agrees with Judge Lynch's determination that
there is no doubt Hanson has failed to make a substantial
showing that he was deprived of a constitutional right and
thus a certificate of appealability is not warranted.
ORDERED that Judge Lynch's Findings and Recommendations
(Doc. 10) are ADOPTED IN FULL. Hanson's petition for writ
of habeas corpus (Doc. 1) is DENIED.
FURTHER ORDERED that the Clerk of Court shall enter by
separate document a judgment of DISMISSAL.
FURTHER ORDERED that a certificate of appealability is