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Ellison v. Fletcher

United States District Court, D. Montana, Helena Division

November 2, 2017

LIONEL SCOTT ELLISON, Petitioner,
v.
MICHAEL FLETCHER, Respondent.

          ORDER

          DANA L. CHRISTENSEN, CHIEF JUDGE UNITED STATES DISTRICT COURT

         On July 28, 2017, Petitioner Lionel Scott Ellison filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] 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, Yellowstone County.

         Ellison has applied to proceed in forma pauperis. (Doc. 3.) Because there is no reason to delay this action, Ellison's motion will be granted.

         Although 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.[2]

         Ellison 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).

         The 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).[3] 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.

         Federal 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).

         It is 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 extraordinarily rare.

         In 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.

         In a 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 appeal:

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 ...

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