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Holmes v. Salmonson

United States District Court, D. Montana, Missoula Division

March 21, 2018

RAY HOLMES, Petitioner,
v.
JAMES SALMONSON, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.

         On January 31, 2018, Petitioner Ray Holmes, a state prisoner proceeding pro se, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). On February 20, 2018, pursuant to this Court's order, Holmes timely submitted an amended petition. (Doc. 5).

         I. Motion to Amend Petition/Motion to Dismiss

         On March 2, 2018, Holmes, along with nine other pro se prisoners, filed an "En Masse Petition for Writ of Habeas Corpus as per 28 USC §2254 and Rule 20(a) and Rule 23 of the Federal Rules of Civil Procedure, " seeking to challenge the constitutionality of the criminal charging process utilized by the State of Montana. See Diangson et. al, v. Salmonson, CV-18-35-H-DLC-JTJ, Pet. (Doc. 1 at 19-33). But because Holmes already had the present habeas matter pending, he was advised the Court would construe the filing as a motion to amend the pending petition. (Doc. 7 at 2)(citing Woods v. Carey, 535 F.3d 886, 888-90 (9th Cir. 2008). Holmes was further advised that the Court would consider Holmes's new claims, in addition to those advanced in his original and amended filings. Id.

         Holmes subsequently filed a Motion to Dismiss, asking this court to dismiss the claims advanced in the "en masse" petition and, instead, review only the claims advanced in his original application for writ of habeas corpus and amended petition. (Doc. 9).

         Holmes's request will be GRANTED. The Court will dismiss the "en masse" claims contained in Document 8. Holmes's original claims are addressed below.

         II. Original 28 U.S.C. § 2254 Petition/Amended Petition

         The Court is required to screen all actions brought by prisoners who seek relief. 28 U.S.C. § 1915(a). The Court must dismiss a habeas petition or portion thereof if the prisoner raises claims that are legally frivolous or fails to state a basis upon which relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). The Court must dismiss a habeas petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 Governing Section 2254 Cases. As set forth below, Mr. Holmes's petition should be dismissed because it is unexhausted and fails to state a claim cognizable in federal habeas. Dismissal should be without prejudice.

         i. Procedural History

         On February 22, 2016, Holmes received a 50-year sentence following convictions for Bail Jumping, Burglary, and sixteen counts of Violation of an Order of Protection in Montana's Fourth Judicial District, Mineral County. (Doc. 4 at 2). From Holmes's petition, it is unclear exactly how much of this sentence was suspended, but Holmes attaches a portion of a transcript from his sentencing hearing wherein the trial court contemplated suspending a portion of the sentence conditioned upon Holmes's completion of an intensive treatment program. (Doc. 4-1 at 1). Since he has been in the custody of the Montana State Prison, Holmes successfully completed the Chemical Dependency program offered at the Intensive Treatment Unit. Id. at 2. Holmes contends that the oral pronouncement of sentence does not match the written judgment. (Doc. 4 at 3, If 15(A)). Holmes believes that because he has completed a treatment program, the remainder of his sentence should be suspended and he should be released from custody. Id.

         Holmes asks this Court to order the State of Montana to amend his written sentence and order his immediate release. Id. at 4, jf 18.

         ii. Analysis

         As a preliminary matter, it does not appear that Holmes raises a claim cognizable in habeas. 28 U.S.C. § 2254(a) states: "[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." See also Rule 1 to the Rules Governing Section 2254 Cases in the United States District Court. "[F]ederal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991)(citations omitted). "[E]rrors of state law do not concern us unless they rise to the level of a constitutional violation." Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989). To state a cognizable federal habeas claim based on a claimed state sentencing error, a petitioner must show that the alleged error was "so arbitrary or capricious as to constitute an independent due process violation." Richmond v. Lewis, 506 U.S. 40, 50 (1992). Holmes has made no such showing.

         Because the claim Holmes attempts to advance challenges the state court's application of Montana state sentencing law, the claim is not cognizable in a federal habeas proceeding. Moreover, Holmes has not demonstrated that the trial court arbitrarily or capriciously erred in the exercise of its sentencing discretion. But these are ...


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