United States District Court, D. Montana, Missoula Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.
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).
Motion to Amend Petition/Motion to Dismiss
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.
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).
request will be GRANTED. The Court will dismiss the "en
masse" claims contained in Document 8. Holmes's
original claims are addressed below.
Original 28 U.S.C. § 2254 Petition/Amended
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
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.
asks this Court to order the State of Montana to amend his
written sentence and order his immediate release.
Id. at 4, jf 18.
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
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 ...