United States District Court, D. Montana, Missoula Division
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 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.
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.
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.
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, Hubble's motion will be GRANTED.
Supplement to Petition
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
The argument is premised upon what Hubble believes to be a
faulty and unconstitutional state criminal charging process
utilized in felony prosecutions. Id. Hubble contends
he was entitled to be prosecuted either following the
empaneling of a grand jury or a preliminary probable cause
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.
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. 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).
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
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 ...