United States District Court, D. Montana, Helena Division
AMENDED ORDER AND FINDINGS AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
JOHNSTON UNITED STATES MAGISTRATE JUDGE
case comes before the Court on Petitioner Allen Edward
Fouts's application for writ of habeas corpus under 28
U.S.C. §2254, filed January 12, 2018. Fouts 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. 1). The
“en masse” petitioners sought to challenge the
constitutionality of the criminal charging process utilized
against them by the State of Montana. The group also
attempted to file several motions as a group; each will be
addressed in turn.
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. 4 at 2-3). Petitioners
were then informed that each must respond individually and
advise the Court of what steps had been undertaken to exhaust
state court remedies. Id. at 3-5. Fouts 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. 2). Because there is no reason to delay this matter
further, Fouts's motion will be GRANTED.
Motion to Dismiss
asks this Court to dismiss a Sexual Intercourse without
Consent conviction handed down in Montana's Seventh
Judicial District Court, Wibaux County, in Cause No.
DC-14-01. (Doc. 1 at 1). The argument is premised upon what
Fouts believes to be a faulty and unconstitutional state
criminal charging process. Id. at
1-12. This Court is not able to provide Fouts
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
dismiss the state conviction as suggested by Fouts. The
Motion to Dismiss (Doc. 1) is DENIED.
Motion for Joint Action
seeks to proceed in a group along with the ten other
petitioners with whom he originally filed. As set forth
above, the group was previously advised that each petition
would be treated individually and as a separate filing. In
the renewed “Joint Action to Stay Joined as One Action
as per Fed.R.Civ.P. Rule 20(a), ” see (Doc.
6), Fouts again seeks “en masse” filing status.
The Motion will be denied.
forth above, the Court notes that three additional other
groups of “en masse” petitioners have sought to
proceed as a class and raise the same claim Fouts's
initial group raised. All petitioners will be treated in the
same manner, each must proceed individually.
of the Rules Governing § 2254 Cases provides that the
Federal Rules of Civil Procedure may be applied in a habeas
action “to the extent they are not inconsistent with
any statutory provisions” or the § 2254 Rules. In
order to qualify for federal habeas relief, a petitioner must
meet certain prerequisites. State judicial remedies must be
exhausted with respect to each claim raised. A petitioner
generally may not proceed with claims that were defaulted in
state court, but he might be able to excuse a default. He
must comply with the federal statute of limitations, either
by filing on time or by asserting entitlement to equitable
tolling, or he must demonstrate that his untimeliness may be
excused because he did not commit the crime of which he was
convicted. The Court no longer has jurisdiction over some
petitioners' claims, because they have already litigated
one federal habeas petition to conclusion. Any new petition
challenging their convictions is “second or
successive” and must be pre-authorized by the Court of
Appeals for filing in this Court. See 28 U.S.C.
§ 2244(b); Burton v. Stewart, 549 U.S. 147, 149
(2007) (per curiam). All of these issues—exhaustion,
default, timeliness, and second-or-successive
filings—can only be adjudicated on an individual basis.
Fouts believes the Court may decide the constitutional issue
first and then sort out their individual entitlements to
relief. But courts generally do not pronounce on
constitutional questions unless it is necessary to do so.
Even in a federal habeas action, the doctrine of
constitutional avoidance is generally followed to the extent
of first ascertaining whether a petitioner meets the
prerequisites for habeas relief and only deciding the
constitutional question if a decision doing so will not
amount to an advisory opinion. See, e.g., Lambrix v.
Singletary, 520 U.S. 518, 525 (1997) (stating that
procedural issues should “ordinarily” be decided
allows a court to deny a meritless claim without regard to
the highly individualized issues of exhaustion, timeliness,
and default. See, e.g., 28 U.S.C. § 2254(b)(2);
Lambrix, 520 U.S. at 525 (stating that “[j]udicial
economy” might support prioritizing issues
“easily resolvable against the habeas
petitioner”). But deciding the merits immediately in
this case would pose a significant fairness issue. Both the
Supreme Court and the Court of Appeals have ruled that
potentially unwary pro se habeas petitioners must
occasionally be warned or protected against 28 U.S.C. §
2244(b)'s restriction on “second or
successive” petitions. See, e.g., Castro v. United
States, 540 U.S. 375, 377 (2003) (requiring courts to
warn a pro se litigant of intent to recharacterize a document
as a habeas petition); Woods v. Carey, 525 F.3d 886,
889-90 (9th Cir. 2008) (requiring courts to construe new
petition as motion to amend any contemporaneously pending
petition in order to avoid second or successive
restrictions). Here, any individual petitioner might have
other viable federal habeas claims, yet be prevented from
ever filing them, merely because insistent fellow prisoners
convinced him to stand in with them in filing a habeas
petition that alleges a single and meritless claim.
See 28 U.S.C. § 2244(b).
practical terms, too, prisoners who wish to proceed pro se
and in a group constantly face the prospect of transfer
within an institution or transfer out to a different
institution. Each pro se litigant must sign and file for
himself. See 28 U.S.C. § 1654. No. pro se
litigant may sign a document for anyone else, because that is
the practice of law. The Court will not interfere in prison
management by ordering the prison to keep all petitioners
together or by requiring the prison to provide time and ...