United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATIONS
JOHNSTON UNITED STATES MAGISTRATE JUDGE
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.
Motion to Proceed in Forma Pauperis
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.
Motion to Dismiss/Motion for Copies
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.
28 U.S.C. §2254 Petition
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
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).
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).
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 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).
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 ...