United States District Court, D. Montana, Butte Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JEREMIAH C. LYNCH, UNITED STATES MAGISTRATE JUDGE.
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.
Motion to Proceed In Forma Pauperis
has applied to proceed in forma pauperis. (Doc. 2). Because
there is no reason to delay this action, Cooley's motion
will be GRANTED.
28 U.S.C. § 2254 Petition
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,
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.
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,
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.
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).
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.
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. 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).
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 ...