United States District Court, D. Montana, Great Falls Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Johnston United States Magistrate Judge
case comes before the Court on John Damon's Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
Damon is a state prisoner proceeding pro se.
28 U.S.C. § 2254 Petition
upon a review of Damon's Petition, it appears that the
petition is both unexhausted and fails to state a cognizable
federal claim. The petition should be dismissed.
a conviction of felony DUI in Montana's Eighth Judicial
District, Cascade County,  Damon was transferred to the Montana
State Prison to begin serving his thirteen-month sentence.
(Doc. 1 at 1). Damon explains he believed his classification
status would be changed from a "Department of
Corrections Inmate" to a "Montana State Prison
Inmate" via an "override." Id. Damon
claims that this change of classification status has never
occurred and he believes the inaction to somehow be
retaliatory in nature. Id. Damon asserts the present
designation may prevent him from appearing before the Montana
Board of Pardons and Parole. He requests this Court order the
State of Montana to change his classification status and
order his appearance before the Montana Board of Pardons and
prisoner must exhaust his state remedies before petitioning
for a federal writ of habeas corpus. 28 U.S.C.
§2254(b)(1)&(c); O 'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). To exhaust state
remedies, a petitioner must afford the state courts the
opportunity to rule upon the merits of his federal claims by
fairly presenting them to the state's highest court in a
procedurally appropriate manner. Baldwin v. Reese,
541 U.S. 27, 29 (2OO4)("[t]o provide the State with the
necessary opportunity, the prisoner must fairly present [his]
claim in each appropriate state court.. .thereby alerting the
court to the federal nature of the claim.").
presentation requires the petitioner must present 'both
the operative facts and the federal legal theory on which his
claim is based'" to the state courts. Davis v.
Silva, 511 F.3d 1005, 1009 (9th Cir. 2008).
"If a petitioner fails to alert the state court to the
fact that he is raising a federal constitutional claim, his
federal claim is unexhausted regardless of its similarity to
the issues raised in state court." Johnson v.
Zenon, 88 F.3d 828, 830 (9th Cir. 1996).
General appeals to broad constitutional principles, such as
due process, equal protection, and the right to a fair trial
do not establish exhaustion. Castillo v. McFadden,
399 F.3d 993, 999 (9th Cir.), cert, denied, 546
U.S. 818 (2005).
it appears Damon may have contacted individuals with in the
Montana Department of Corrections and/or the Montana State
Prison, see (Doc. 1 at 1), the Court has reviewed
the Montana Supreme Court Docket and has been unable to
locate any court filings made by Damon advancing the claim he
attempts to raise in the instant petition. Thus, it appears
that Damon's petition is entirely unexhausted.
exhaustion aside, Damon's petition also fails because the
claim he attempts to advance is not cognizable in habeas. A
state prisoner is entitled to federal habeas relief only if
he is being held in violation of the constitution, laws, or
treaties of the United States. 28 U.S.C. §2254(a).
Unless an issue of federal constitutional or statutory law is
implicated by the facts presented, the claim is not
cognizable under federal habeas corpus. Estelle v.
McGuire, 502 U.S. 62, 68 (1991). Federal habeas corpus
relief does not lie for errors of state law. Lewis v.
Jeffers, 497 U.S. 764, 780 (1990); see also, Peltier
v. Wright, 15 F.3d 860, 861061 (generally federal habeas
corpus relief is unavailable for alleged errors in
interpretation and application of state law). It is not the
province of this Court to second guess determinations made by
state officials, including classifications regarding an
inmate's particular status within the state correctional
Damon does not identify what federal claim he is attempting
to advance the Court will construe his claim as a due process
violation under the Fourteenth Amendment. But a closer review
reveals no constitutionally protected liberty interest has
been implicated by the purported denial of a certain
classification status. Damon's desire for a specific
designation within the Montana Department of Corrections
and/or Montana State Prison is not a cognizable liberty
liberty interest may arise either from the Due Process Clause
itself, or from the applicable law. Olim v.
Wakinekona,461 U.S. 238, 247-51 (1983); Toussaint
v. McCarthy,801 F.2d 1080, 1089 (9th Cir.
1986). The Supreme Court has held that transfer of a prisoner
to a more restrictive environment, even if it imposes
"severe hardships" on an individual, does not
impinge on a liberty interest. Hewitt v. Helms, 459
U.S. 460, 467 (1983). Likewise, the disinclination of an
institution to transfer an individual to a less restrictive
environment does not impinge on a constitutional liberty
interest. Badea v. Cox,931 F.2d 573, 576
(9thCir. 1991). Moreover an inmate has no
constitutional right to a particular security classification
or housing. Meachum v. Fano, 477 U.S. 215, 224-25