United States District Court, D. Montana, Billings Division
JOSHUA P. SCARBOROUGH, Petitioner,
STATE OF MONTANA, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE
March 6, 2018, Petitioner Joshua P. Scarborough, 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 March 16, 2018, Scarborough filed a supplement to his
petition. (Doc. 4).
Motion To Proceed In Forma Pauperis
seeks leave of the Court to proceed in forma pauperis. (Doc.
3). Although Scarborough has not provided the requisite
inmate account statement, there is no reason to delay this
matter further. Scarborough's motion (Doc. 3) will be
28 U.S.C. § 2254 Petition
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 fail 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. Scarborough's petition should be
dismissed because the entire petition is unexhausted, and at
least one of the claims is not cognizable in federal habeas.
Dismissal should be without prejudice.
February 7, 2018, written judgment was entered against Mr.
Scarborough in Montana's Thirteenth Judicial District
Court, Yellowstone County. (Doc. 1 at 2, ¶¶ 1-2).
Scarborough was convicted of four counts of criminal
possession of dangerous drugs and two counts of criminal
endangerment. Id. at 3, ¶ 3. Scarborough was
sentenced to five consecutive 5-year sentences for an
aggregate sentence of twenty-five years. Id. at
¶ 4. Scarborough indicates he signed a plea agreement
that called for a 15-year sentence and minimal fines.
Id. at 7, ¶16. Scarborough contends that the
sentencing judge was required to make certain considerations
under state law, including incarceration alternatives,
because he is a non-violent offender. Id.
Scarborough also indicates he is unable to pay the financial
obligations imposed by the court. Id. 4, 7.
According to Scarborough, the sentencing judge unlawfully
failed to make the requisite considerations in imposing
sentence, and also failed to clearly state the reasons for
the sentence imposed. (Doc. 4).
did not file a direct appeal. He indicates he has requested
his attorney file for direct review on his behalf, but his
attorney apparently refuses to do so. (Doc. 1 at 3, ¶ 6;
4, ¶ 10). Scarborough has also not sought
post-conviction relief or filed a state habeas petition,
Id. at 3-4, but he recently filed for sentence
review. Id. at 6, ¶ 14. Scarborough seems to
indicate his trial counsel was ineffective for not only
failing to file an appeal, but also for failing to spend
adequate time meeting with Scarborough and preparing a
defense. (Doc. 4). Scarborough requests this Court appoint
him a lawyer to help “clean up” his state cases
and sentences. (Doc. 1 at 7, ¶ 16).
preliminary matter, it does not appear that Scarborough's
sentencing claim is cognizable in habeas. 28 U.S.C. Â§ 2254(a)
states: â[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). Scarborough has made no such showing.
extent that Scarborough attempts to challenge the state
court's application of Montana state sentencing law in
his case, the claim is not cognizable in a federal habeas
proceeding. Moreover, Scarborough has not demonstrated that
the trial court arbitrarily or capriciously erred in the
exercise of its sentencing discretion. But these are not the
only defects from which Scarborough's petition suffers;
his claims are also unexhausted.
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