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Hubble v. Salmonson

United States District Court, D. Montana, Missoula Division

April 18, 2018

KORY HUBBLE, Petitioner,
v.
JAMES SALMONSON, Respondent.

          AMENDED ORDER AND FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Jeremiah C. Lynch United States Magistrate Judge

         This case comes before the Court on Petitioner Kory Hubble's application for writ of habeas corpus under 28 U.S.C. §2254, filed February 20, 2018. Hubble is a state prisoner proceeding pro se.

         I. Background

         Hubble 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 19-33.

         Hubble, 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 2-5). 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. Hubble did not respond to this Court's order.

         i. Motion for Leave to Proceed in Forma Pauperis

         Hubble has moved this Court to be granted in forma pauperis status. (Doc. 3). Because there is no reason to delay this matter further, Hubble's motion will be GRANTED.

         ii. Supplement to Petition

         In a Supplement to his Petition, Hubble asks this Court to dismiss a Sexual Intercourse without Consent conviction handed down in Montana's Seventh Judicial District Court, Flathead County, in Cause No. DC-11-386(B). (Doc. 4 at 1).[1] The argument is premised upon what Hubble believes to be a faulty and unconstitutional state criminal charging process utilized in felony prosecutions. Id.[2] Hubble contends he was entitled to be prosecuted either following the empaneling of a grand jury or a preliminary probable cause hearing. Id.

         But this Court is not able to provide Hubble 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 convictions as suggested by Hubble. To the extent that the Supplement (Doc. 4) is construed as a Motion to Dismiss, the motion is DENIED.

         iii. Exhaustion

         Hubble does not have any past or active state appellate matters pending, thus, it does not appear that Hubble ever attempted to raise his current claim before the state courts of Montana.[3] 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 Picard v. Connor, 404 U.S. 270 (1971) and Anderson v. Harless, 459 U.S. 4 (1982)). A petitioner must meet all three prongs of the test in one proceeding.

         While the Court is not suggesting that the claim Hubble seeks to advance is cognizable in habeas or meritorious in nature, assuming it were, it does not relieve Hubble of the burden of first presenting such claim to the state courts. Accordingly, there are still remedies available under state law. Because Hubble has not yet exhausted his available state court remedies, this ...


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