United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Timothy J. Cavan United States Magistrate Judge.
January 2, 2018, Petitioner Scott Matthew Thum filed a
petition seeking a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Thum is a state prisoner proceeding pro
U.S.C. § 2254 Petition
January 31, 2017, following guilty pleas, the Sixteenth
Judicial District, Fallon County, sentenced Mr. Thum for
Criminal Endangerment, Driving Under the Influence (felony),
and Driving while License is Revoked. (Doc. 1 at 2-3.) Thum
received a ten year prison sentence for the Criminal
Endangerment, and a 13-month treatment placement followed by
a 5-year suspended sentence for the DUI. Id. at 3,
¶ 4. The sentences were ordered to run consecutively.
did not file a direct appeal or seek postconviction relief,
but he did apply for relief with the Montana Sentence Review
Division. Id. at ¶¶6, 7, and 9. Thum
asserts he “was lead to believe that after Sentence
review all I had left was to file a writ of Habeas
Corpus.” Id. at 6.
believes his trial counsel provided ineffective assistance
(id. at 4, 9), and that the Montana state offense of
Criminal Endangerment is an unlawful “catchall
law” that was inappropriately applied in Thum's
case. Id. at 5, 10. Thum asks this Court to amend
the Criminal Endangerment conviction to Reckless Endangerment
of a Highway Worker, and credit him with time served from the
date of arrest to the date of his filing in this Court.
Id. at 7, ¶ 16.
reasons discussed below, Thum's petition should be
dismissed because the claims he advances relative to his
current custody have not yet been exhausted. Dismissal should
be without prejudice.
habeas relief may only be granted on the ground that an
individual is in custody in violation of the Constitution or
laws and treaties of the United States. 28 U.S.C.
§2254(a). Further federal courts may not grant a writ of
habeas corpus brought by an individual in custody pursuant to
a state court judgment unless “the applicant has
exhausted the remedies available in the courts of the
State.” 28 U.S.C. §2254(b)(1)(A). The exhaustion
requirement is grounded in the principles of comity and gives
states the first opportunity to correct alleged violations of
a prisoner's federal rights. Coleman v.
Thompson, 501 U.S. 722, 731 (1991).
the exhaustion requirement, a petitioner must (1) use the
“remedies available” through the state's
established procedures for appellate review,
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999), § 2254(b)(1)(A); (2) describe “the federal
legal theory on which his claim is based, ” Davis
v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008); and (3)
describe “the operative facts . . . necessary to give
application to the constitutional principle upon which the
petitioner relies, ” id. See also Gray v.
Netherland, 518 U.S. 152, 162-63 (1996) (discussing
Picard v. Connor, 404 U.S. 270 (1971) and
Anderson v. Harless, 459 U.S. 4 (1982)). A
petitioner must meet all three prongs of the test in one
assuming Thum could state a cognizable federal claim at this
juncture, Thum's own petition indicates he has not
presented any such claim to the state courts of Montana.
While Thum has apparently appeared before the Montana
Sentence Review Division, that entity is charged with
determining whether a state sentence is clearly inadequate or
clearly excessive, not deciding issues of constitutional
are still remedies available to Thum under state law,
including extraordinary, direct, and collateral review.
Because Thum has not yet exhausted his available state court
remedies, this Court cannot review the claim. See Rose v.
Lundy, 455 U.S. 509 (1982). Dismissal is without
prejudice, and Thum may return to this Court if and when he
fully exhausts the claims relative to his current custody in
the state courts.
Certificate of Appealability
district court must issue or deny a certificate of
appealability 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). The standard is satisfied if “jurists of
reason could disagree with the district court's
resolution of [the] constitutional claims” or
“conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). Where a claim is
dismissed on procedural grounds, the court must also ...