United States District Court, D. Montana, Missoula Division
ORDER AND FINDINGS and RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Jeremiah C. Lynch United States Magistrate Judge
case comes before the Court on Petitioner Bryson
Connely's application for writ of habeas corpus under 28
U.S.C. §2254, March 2, 2018. Connely 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 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. Connely 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, Connely's motion will be
Supplement to Petition
Supplement to his Petition, Connely asks this Court to
dismiss Attempted Deliberate Homicide and Assault on a Peace
Officer convictions out of the Eleventh Judicial District,
Flathead County, in Cause No. DC-11-278A. (Doc. 4 at
The argument is premised upon what Connely believes to be a
faulty and unconstitutional state criminal charging process
utilized in felony prosecutions. Id. Connely 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 Connely 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 Connely. 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 current state appellate matters
pending, thus, it does not appear that Connely 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 Connely seeks to
advance is cognizable in habeas or meritorious in nature,
assuming it were, it does not relieve Connely of the burden
of first presenting such claim to the state courts.
Accordingly, there are still remedies available under state
law. Because Connely has not yet exhausted his available
state court remedies, ...