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Scarborough v. State

United States District Court, D. Montana, Billings Division

April 9, 2018

JOSHUA P. SCARBOROUGH, Petitioner,
v.
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

         On 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).

         I. Motion To Proceed In Forma Pauperis

         Scarborough 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 granted.

         II. 28 U.S.C. § 2254 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 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.

         i. Procedural History

         On 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, [1] 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).

         Scarborough 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).

         ii. Analysis

         As a preliminary matter, it does not appear that Scarborough's sentencing claim is 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). Scarborough has made no such showing.

         To the 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.

         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 Pic ...


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