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Awbery v. Salmonson

United States District Court, D. Montana, Great Falls Division

April 18, 2018

CHRISTOPHER AWBERY, Petitioner,
v.
JAMES SALMONSON, Respondent.

          AMENDED ORDER AND FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge.

         This case comes before the Court on Petitioner Christopher Awbery's application for writ of habeas corpus under 28 U.S.C. §2254, filed January 29, 2018. Awbery is a state prisoner proceeding pro se.

         I. Background

         Awbery 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.

         Awbery, 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. Awbery did not respond to this Court's order.

         i. Motion for Leave to Proceed in Forma Pauperis

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

         ii. Motion to Dismiss

         Awbery asks this Court to dismiss Sexual Assault, Sexual Intercourse without Consent, and Incest convictions handed down in Montana's Tenth Judicial District Court, Fergus County, in Cause No. DC-2013-19. (Doc. 4 at 1).[1] The argument is premised upon what Awbery believes to be a faulty and unconstitutional state criminal charging process. Id. at 1-12.[2] This Court is not able to provide Awbery 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 Awbery. The Motion to Dismiss (Doc. 4) is DENIED.

         iii. 28 U.S.C. § 2254 Petition

         As noted, Awbery 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, Awbery 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).

         II. Certificate of Appealability

         “The 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)).

         The claims advanced by Awbery 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 Awbery's participation. A certificate of appealability should be denied ...


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