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 Brian Norvell's
application for writ of habeas corpus under 28 U.S.C.
§2254, filed January 31, 2018. Norvell 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 as per 28 U.S.C. § 2254 and Rule 20(a) and
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 20-34.
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. Norvell 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, Norvell's motion will be GRANTED.
Supplement to Petition
Supplement to his Petition, Norvell asks this Court to
dismiss Assault on a Peace Officer and Assault convictions
handed down in Montana's Nineteenth Judicial District
Court, Lincoln County, in Cause No. DC-16-51 and Cause No.
DC-16-98. (Doc. 4 at 1). The argument is premised upon what
Norvell believes to be a faulty and unconstitutional state
criminal charging process utilized in felony prosecutions.
Id. Norvell 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 Norvell 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 Norvell. To the extent that the
Supplement (Doc. 4) is construed as a Motion to Dismiss, the
motion is DENIED.
U.S.C. § 2254 Petition
noted, Norvell has not filed an individual petition for
habeas corpus relief as directed. And as stated in this
Court's prior order of February 6, 2018, Norvell is
precluded from filing his request for habeas relief en masse
with other petitioners. (Doc. 1 at 2-6). 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).
Certificate of Appealability
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