United States District Court, D. Montana, Butte Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Jeremiah C. Lynch United States Magistrate Judge.
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.
28 U.S.C. § 2254 Petition
petition alleges that he pled guilty to a single count of
felony Embezzlement in July of 2017. (Doc. 1 at
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).
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. But, like the other petitions before his,
Johnson's cannot proceed because a federal constitutional
right has not been violated.
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).
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
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.
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)).
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
on the foregoing, the Court makes the following:
Petition (Doc. 1) should be DENIED ...