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Johnson v. Lester

United States District Court, D. Montana, Butte Division

January 22, 2018

RONALD JOHNSON, Petitioner,
v.
ED LESTER, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Jeremiah C. Lynch United States Magistrate Judge.

         On December 4, 2017, Petitioner Ronald Johnson, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Johnson, a state prisoner proceeding pro se, seeks to challenge actions that have occurred in the Montana Second Judicial District Court, Butte-Silverbow County.

         I. 28 U.S.C. § 2254 Petition

         Johnson's petition alleges that he pled guilty to a single count of felony Embezzlement in July of 2017. (Doc. 1 at 3).[1] Johnson states that no date has yet been set for his sentencing and that he has been waiting to be sentenced for more than 120 days. Id. at 2-3. Johnson asserts an unreasonable sentencing delay has occurred and cites various Montana statutes and state constitutional provisions in support of his claim. Id. at 4, ¶ 13(A)); 5, ¶13(B)(i). Johnson explains that he attempted to file a motion requesting sentencing with the trial court; the motion was returned to him. See Id. at 5, 13(B)(v); see also (Doc. 1-2). Johnson also requested his retained counsel file a state habeas petition on his behalf, but Johnson was advised the work would require payment of an additional fee. (Doc. 1-2 at 1). Johnson requests this Court to "force" the Second Judicial District Court, Honorable Brad Newman, to sentence him without further delay. (Doc. 1 at 7, ¶16).

         As an initial matter, this Court is aware that there is apparently an ongoing delay in the sentencing hearings taking place in the Second Judicial District. Johnson's is not the first petition filed with this Court raising similar claims.[2] But, like the other petitions before his, Johnson's cannot proceed because a federal constitutional right has not been violated.

         Johnson cites only Montana statutes and the Montana Constitution in support of his claim of unreasonable delay at sentencing. But a habeas claim is cognizable only when it is based upon the ground that an individual is "in custody in violation of the Constitution or laws or treaties of the United States, " 28 U.S.C. § 2254(a), and not for alleged errors in the interpretation or application of state law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Generally state sentencing matters are not cognizable in federal habeas. "Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994).

         Even if Johnson had advanced a federal speedy trial or due process violation based upon the delay in sentencing, those claims, too, would fail. The Supreme Court has held that there is no right to a "speedy sentencing" under the federal constitution. "[T]he [speedy trial] guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges." Betterman v. Montana, 136 S.Ct. 1609, 1612 (2016). "As a measure protecting the presumptively innocent, the speedy trial right- like other similarly aimed measures- loses force upon conviction." Id. at 1614. Thus, Johnson has no federal constitutional speedy trial right to a timely sentencing.

         In dicta, Justice Sotomayor observed "[f]or inordinate delay in sentence, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments." Id. at 1612. But the question of a potential due process right for sentencing delay remains "an open one." Id. at 1619. Despite the dicta of Sotomayor's concurrence, at this point in time there is no clearly recognized federal due process claim for unreasonable sentencing delay. Thus, even if Johnson was attempting to advance a federal due process violation, such a claim is not cognizable in federal habeas at this juncture. Because Johnson has not advanced a cognizable federal claim, his petition should be denied for lack of merit.

         II. Certificate of Appealability

         "The 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)).

         Johnson has not made a substantial showing that he was deprived of a constitutional right. There are no close questions and there is no reason to encourage further proceedings in this Court at this time. A certificate of appealability should be denied.

         Based on the foregoing, the Court makes the following:

         RECOMMENDATION

         1. The Petition (Doc. 1) should be DENIED ...


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