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Lout v. Fletcher

United States District Court, D. Montana, Helena Division

January 25, 2018

JEFFERY JOHN LOUT, Petitioner,
v.
MICHAEL FLETCHER, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE

         This case comes before the Court on Petitioner Jeffery John Lout's Petition for Writ of Habeas Corpus pursuant 28 U.S.C. §2254 (Doc. 1), Motion to Proceed in Forma Pauperis (Doc. 2), Motion to Dismiss (Doc. 3), and Motion for Copies (Doc 4). Lout is a state prisoner proceeding pro se.

         A. Motion to Proceed in Forma Pauperis

         After reviewing the motion and supporting account statement, I find that Lout has sufficiently shown he cannot afford to pay all costs that may be associated with this action. The motion to proceed in forma pauperis (Doc. 2) will be granted.

         B. Motion to Dismiss/Motion for Copies

         As set forth below, this Court lacks jurisdiction to hear Lout's claims. Accordingly, Lout's motion to dismiss and motion for copies (Docs. 3 & 4) will denied as moot.

         C. 28 U.S.C. §2254 Petition

         In what has been characterized as an “en masse petition for writ of habeas corpus- 28 USC §2254 as per Rule 23 of the Federal Rules of Civil Procedure, ” Lout, along with eleven other pro se prisoners, seeks to challenge the constitutionality of the criminal charging process utilized by the State of Montana. See generally (Doc. 1 at 18-32).

         The petition at hand is Lout's fourth in this Court. He filed the first in 2005 and it was denied for lack of merit. See Lout v. State of Montana, Cause No. CV 05-67-M-DWM-LBE (D. Mont. judgment filed Aug. 4, 2006). The Ninth Circuit denied Lout's request for a certificate of appealability. Lout v. Montana, No. 06-35843 (9th Cir. June 1, 2007). Lout next filed in 2009; there Lout was instructed that this Court had no jurisdiction because Lout had not proceeded under the provisions of 28 U.S.C. §2244(b) to obtain leave from the Ninth Circuit to file a second petition. Lout v. State of Montana, Cause No. CV 09-10-BLG-RFC-CSO (D. Mont. judgment filed April 24, 2009). Lout filed his third document, which was construed as a new habeas petition, in 2011. Again, Lout was advised that he must apply to the Ninth Circuit Court of appeals for leave to proceed with a second or subsequent petition. The petition was dismissed. Lout v. State of Montana, Cause No. CV-11-35-H-DWm (D. Mont. Or. of Dismissal filed July 15, 2011).

         As he has previously been advised, until Lout obtains leave from the Ninth Circuit Court of Appeals to file a successive habeas petition, see 28 U.S.C. § 2244(b), this Court has no jurisdiction to hear his claims, Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam).

         D. 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 a 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 decide whether “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012) (quoting Slack, 529 U.S. at 484).

         Lout has not made a substantial showing that he was deprived of a constitutional right. Moreover, because there is no doubt this Court lacks jurisdiction and there is no basis to encourage further ...


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