United States District Court, D. Montana, Helena Division
L. CHRISTENSEN, CHIEF JUDGE UNITED STATES DISTRICT COURT
28, 2017, Petitioner Lionel Scott Ellison filed the instant
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Ellison is a state prisoner proceeding pro
se and challenges a judgment entered against him in December
of 2015 in Montana's Thirteenth Judicial District,
has applied to proceed in forma pauperis. (Doc. 3.) Because
there is no reason to delay this action, Ellison's motion
will be granted.
Ellison challenges a conviction out of Yellowstone County,
because of perceived conflicts of interest, he has filed his
petition in the Helena Division, rather than the Billings
Division. (Doc. 1 at 2.) Again, because there is no reason to
delay the resolution of this matter, the Court will not
transfer the case out of the Helena Division. But Ellison is
advised if he wishes to file a subsequent petition in the
future, he must file in the Billings Division.
previously sought habeas relief from this Court. Ellison was
advised that he must first exhaust all of his claims in the
Montana state courts. The Court noted that Ellison had a
direct appeal pending; because Ellison still had state
remedies available to him this Court was precluded from
hearing his claims. Ellison v. Kirkegard, No.
CV-16-123-DLC, Find. & Rec. at 2-3 (Aug. 23, 2016).
Ellison attempted to argue that he deserved different
treatment, and should be relieved of the exhaustion
requirement, because he was innocent of the crimes for which
he was convicted. Ellison was advised that it is not the role
of the Federal Courts to adjudicate his guilt or innocence,
but rather, the role is only to determine whether or not his
guilt was established by constitutional means. Id.
at 3. Ellison was informed he may file a new federal petition
after he has exhausted his available state remedies.
Id., citing Slack v. McDaniel, 529 U.S.
473, 485-86 (2000); see also Ellison v. Kirkegard,
No. CV-16-123-DLC, Or. (D. Mont. Oct. 31, 2016)(adopting
Findings and Recommendations in full).
procedural posture of Ellison's state court appeal has
not changed. In fact, the filing deadline for Ellison's
opening brief on direct appeal is December 26, 2017. See,
State v. Ellison, DA 16-0105, Or. (Mont. Oct. 20,
2017)(granting Appellant's request for extension of
time). Ellison believes this long delay has made
the state appellate process ineffective and that this Court
should decide the merits of his habeas petition even though
the state proceedings are ongoing.
courts generally do not intervene in ongoing state
proceedings absent extraordinary circumstances where the risk
of irreparable harm is both great and immediate. Younger
v. Harris, 401 U.S. 37, 45-46 (1971); see also
Middlesex County Ethics Committee v. Garden State Bar Ass
'n, 457 U.S. 423, 432 (1982)(federal courts abstain
when state proceeding 1) is currently pending, 2) involves an
important state interest, and 3) affords an adequate
opportunity to raise any constitutional claims).
possible for a federal court to overcome Younger
abstention if the proceedings have taken too long:
[U]nusual delay in the state courts may justify a decision to
protect a prisoner's right to a fair and prompt
resolution of his constitutional claims despite the
jurisprudential concerns that have led us to decline to
review a claim or to require full exhaustion in other cases
in which a proceeding related to the federal petition is
pending in state court.
Phillips v. Vasquez, 56 F.3d 1030, 1035
(9th Cir. 1995). But such cases are
Phillips, a capital case, the prisoner sought a
federal challenge to the constitutionality of his state
conviction while his sentence was still being appealed in the
state courts fifteen years after his conviction. The Court
determined that given the "extraordinary delay, "
the petitioner could "bring his habeas petition
regarding the constitutionality of his conviction despite the
fact that the state ha[d] not yet made a final ruling on his
sentence." Id. at 1032-33. The Court noted that
"[t]he state has already adjudicated [petitioner's]
guilt, its decision in that regard is final, and [petitioner]
seeks nothing more than federal review of that decision. The
ongoing state proceeding involves sentencing only, and the
state is free to continue with its sentencing
determination." Id. at 1033.
subsequent decision, the Ninth Circuit affirmed a district
court's abstention in a case factually similar to
Phillips, and characterized Phillips as a
narrow holding that was decided based upon the
"unreasonably long delay" involved in the capital
The narrow holding in Phillips does not control this
case. When there is a pending state penalty retrial and no
unusual circumstances, we decline to depart from the general
rule that a petitioner must await the outcome of the state
proceedings before commencing his federal habeas corpus
action... The delay in this case was not extreme, unusual or
attributable to the ineffectiveness of the state courts. It
differs from that in Philips and is insufficient to
constitute grounds for immediate federal review, particularly
in light of the longstanding principles underlying the
Supreme Court decision in [Younger]. As
Younger makes clear, our federal judiciary,
"anxious though it may be to vindicate and protect
federal rights and federal interests, always endeavors to do
so in ways that will not unduly interfere with the legitimate
activities of ...