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Cooley v. Salmonson

United States District Court, D. Montana, Butte Division

February 27, 2018

RICKY COOLEY, Petitioner,
v.
JAMES SALMONSON, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JEREMIAH C. LYNCH, UNITED STATES MAGISTRATE JUDGE.

         On February 8, 2018, Petitioner Ricky Cooley filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254, (doc. 1), which was amended on February 20, 2018. (Doc. 5). Cooley is a state prisoner proceeding pro se.

         I. Motion to Proceed In Forma Pauperis

         Cooley has applied to proceed in forma pauperis. (Doc. 2). Because there is no reason to delay this action, Cooley's motion will be GRANTED.

         II. 28 U.S.C. § 2254 Petition

         On October 10, 2017, Cooley was committed to the Montana Department of Corrections (DOC) for 10 years, with 5 years suspended, following convictions for three counts of Theft of a Motor Vehicle in Montana's Second Judicial District, Butte-Silver Bow County. (Doc. 5 at 2). Apparently, there is also an outstanding "parolee at large" warrant for Mr. Cooley out of the State of Louisiana. Id. at 3, ¶ 15(A); see also (Doc. 1 at 1). While Mr. Cooley anticipated that his commitment to the DOC would entail placement in a treatment facility, the existence of the out of state warrant compelled DOC officials to decline Cooley's placement in a treatment facility. (Doc. 1 at 2). Mr. Cooley is currently at the Montana State Prison and has not received any treatment. Id. Cooley asks this Court to order the State of Montana to either execute the Louisiana warrant or vacate the warrant as invalid in order allow Mr. Cooley treatment and eventual reintegration to society. Id. Mr. Cooley believes his current placement violates the spirit of the plea agreement he accepted. (Doc. 5 at 3, 15(A)).

         i. Analysis

         For the reasons discussed below, Cooley's petition should be dismissed because the claims he advances relative to his current custody have not yet been exhausted. Dismissal should be without prejudice.

         Federal courts may not grant a writ of habeas corpus brought by an individual in custody pursuant to a state court judgment unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. §2254(b)(1)(A). The exhaustion requirement is grounded in the principles of comity and gives states the first opportunity to correct alleged violations of a prisoner's federal rights. Coleman v. Thompson, 501 U.S. 722, 731 (1991).

         To meet the exhaustion requirement, a petitioner must (1) use the "remedies available, " § 2254(b)(1)(A), through the state's established procedures for appellate review, O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); (2) describe "the federal legal theory on which his claim is based, " Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008); and (3) describe "the operative facts ... necessary to give application to the constitutional principle upon which the petitioner relies, " id. See also Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (discussing Picard v. Connor, 404 U.S. 270 (1971) and Anderson v. Harless, 459 U.S. 4 (1982)). A petitioner must meet all three prongs of the test in one proceeding.

         As an initial matter, it does not appear that Cooley advances a claim that is cognizable in federal habeas. A state prisoner is entitled to federal habeas relief only if he is being held in custody 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).

         Inmates do not have a constitutional right to be incarcerated at a particular facility or in a particular unit within a facility. See, Montayne v. Haymes, 427 U.S. 236, 242-43 (1978) (no constitutional right to be housed in a particular state prison); Meachum v. Fano, 427 U.S. 215, 224 (1976)(no due process protections required upon the discretionary transfer of state prisoners to a substantially less agreeable prison). 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). Correspondingly, 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 (9th Cir. 1991). Thus, Cooley's desire for a placement at a treatment facility rather than the Montana State Prison does not give rise to a protected liberty interest.

         But even assuming Cooley could state a cognizable claim at this juncture, it does not relieve him of the burden of first presenting such a claim to the state courts. The Court has reviewed the Montana Supreme Court Docket, and it does not appear that Cooley has attempted to file any action challenging his current placement or any process to which he believes he has been denied.[1] Moreover, Cooley's Amended Petition reveals he has not sought any appellate or collateral relief in the state court system. See (Doc. 5 at 2-3).

         Accordingly, there are still remedies available to Cooley under state law, including extraordinary, direct, and collateral review. Because Cooley has not yet exhausted his available state court remedies, this Court cannot review the claim. See Rose v. Lundy,455 U.S. 509 (1982). Dismissal is without prejudice and Cooley may return to this Court ...


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