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 Cole
Francisco's application for writ of habeas corpus under
28 U.S.C. §2254, filed February 20, 2018. Francisco 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. Francisco 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, Francisco's motion will be GRANTED.
Supplement to Petition
Supplement to his Petition, Francisco asks this Court to
dismiss Indecent Exposure and Criminal Possession of
Dangerous Drugs convictions handed down in Montana's
Fourth Judicial District Court, Missoula County, in Cause No.
DC-32-2015-162. (Doc. 4 at 1). The argument is premised upon
what Francisco believes to be a faulty and unconstitutional
state criminal charging process utilized in felony
prosecutions. Id. Francisco contends he was entitled to
be prosecuted either following the empaneling of a grand jury
or a preliminary probable cause hearing. Id.
this Court is not able to provide Francisco 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 Francisco. To
the extent that the Supplement (Doc. 4) is construed as a
Motion to Dismiss, the motion is DENIED.
did file a direct appeal, but he subsequently sought a
voluntary dismissal, which was granted. See State v.
Francisco, DA 16-0368, Or. (Mont. June 7, 2017)(granting
motion to dismiss). Thus, it does not appear that Francisco
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 Francisco seeks to
advance is cognizable in habeas or meritorious in nature,
assuming it were, it does not relieve Francisco of the burden
of first presenting such claim to the state courts.
Accordingly, there are still remedies available under state
law. Because Francisco has not yet exhausted his available
state court remedies, ...