United States District Court, D. Montana, Missoula Division
MICHAEL W. MCDONALD, Petitioner,
JAMES SALMONSON, Respondent.
AMENDED ORDER AND FINDINGS AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Jeremiah C. Lynch United States Magistrate Judge
case comes before the Court on Petitioner Michael W.
McDonald's application for writ of habeas corpus under 28
U.S.C. §2254, filed January 29, 2018. McDonald is a
state prisoner proceeding pro se.
was one of a group of petitioners that joined in filing what
they characterized as an “En Masse Petition for Writ of
Habeas Corpus- 28 U.S.C. § 2254 as per Rule 23 of the
Federal Rules of Civil Procedure.” (Doc. 2). The
“en masse” petitioners sought to challenge the
constitutionality of the criminal charging process utilized
against them by the State of Montana. Id. at 18-32.
and the additional petitioners, were notified that the Court
would not allow them to proceed as a group and that separate
cases would be opened for each. (Doc. 1 at 1-5). Petitioners
were then ordered to respond individually to advise the Court
whether or not they wished to proceed and, if so, petitioners
were directed to each complete the Court's standard
habeas form. Id. at 5-6. McDonald did not respond to
this Court's order.
Motion for Leave to Proceed in Forma Pauperis
has moved this Court to be granted in forma pauperis status.
(Doc. 3). Because there is no reason to delay this matter
further, McDonald's motion will be GRANTED.
Motion to Dismiss
asks this Court to dismiss an Incest conviction handed down
in Montana's Fourth Judicial District Court, Missoula
County, in Cause No. DC-10-291. (Doc. 4 at 1). The argument is
premised upon what McDonald believes to be a faulty and
unconstitutional state criminal charging process.
Id. at 1-12. This Court is not able to provide McDonald
the relief sought. Federal district courts, as courts of
original jurisdiction, do not serve as appellate tribunals to
review errors allegedly committed by state courts. MacKay
v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987);
see also Atlantic Coast Line R. Co. v. Brotherhood of
Locomotive Engineers, 398 U.S. 281, 296
(1970)(“lower federal courts possess no power whatever
to sit in direct review of state court decisions”). It
would be entirely inappropriate for this Court to review and
dismiss the state conviction as suggested by McDonald. The
Motion to Dismiss (Doc. 4) is DENIED.
U.S.C. § 2254 Petition
noted, McDonald has not filed an individual petition for
habeas corpus relief as directed. And as stated in this
Court's prior order of February 5, 2018, McDonald is
precluded from filing his request for habeas relief en masse
with other petitioners. (Doc. 1 at 1-5). Dismissal on that
ground is appropriate. See Stewart v.
Martinez-Villareal, 523 U.S. 637, 645 (1998)(explaining
that dismissal for technical procedural reasons should not
bar prisoners from ever obtaining federal habeas
review)(citing United States ex rel. Barnes v.
Gilmore, 968 F.Supp. 384, 385 ( N.C. Ill. 1997) and
Marsh v. U.S. Dist. Court for Northern Dist. of
California, 1995 WL 23942 at *1 (N.D. Ca. 1995)).
Recognizing that courts generally treat pro se habeas
petitioners leniently, the dismissal should be without
prejudice. Castro v. United States, 540 U.S. 375,
377 (2003); Woods v. Carey, 525 F.3d 886, 889-90
(9th Cir. 2008).
Certificate of Appealability
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rule 11(a), Rules governing § 2254
Proceedings. A COA should issue as to those claims on which a
petitioner makes a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. §
2253(c)(2). The standard is satisfied if “jurists of
reason could disagree with the district court's
resolution of [the] constitutional claims” or
“conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). Where a claim is
dismissed on procedural grounds, the court must also decide
whether “jurists of reason would find it debatable
whether the district court was correct in its procedural
ruling.” Gonzalez v. Thaler, 565 U.S. 134,
140-41 (2012) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)).
claims advanced by McDonald do not appear to make a
substantial showing that he was deprived of a constitutional
right. No. reasonable jurist would suggest the Court go
forward with the case without McDonald's participation. A
certificate of appealability should be denied ...