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Severson v. Salmonson

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

April 20, 2018

DANNY SEVERSON, Petitioner,
v.
JAMES SALMONSON, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge

         This case comes before the Court on Petitioner Danny Severson's application for writ of habeas corpus under 28 U.S.C. §2254, March 2, 2018. Severson is a state prisoner proceeding pro se.

         I. Background

         Severson 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.

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

         i. Motion for Leave to Proceed in Forma Pauperis

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

         ii. Supplement to Petition

         In a Supplement to his Petition, Severson asks this Court to dismiss a Sexual Assault conviction out of the Eighth Judicial District, Cascade County, in Cause No. ADC-15-028. (Doc. 4 at 1).[1] The argument is premised upon what Severson believes to be a faulty and unconstitutional state criminal charging process utilized in felony prosecutions. Id.[2] Severson contends he was entitled to be prosecuted either following the empaneling of a grand jury or a preliminary probable cause hearing. Id.

         But this Court is not able to provide Severson 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 Severson. To the extent that the Supplement (Doc. 4) is construed as a Motion to Dismiss, the motion is DENIED.

         iii. Exhaustion

         Severson does not have any past or current state appellate matters pending, thus, it does not appear that Severson ever attempted to raise his current claim before the state courts of Montana.[3] 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).

         To meet 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 proceeding.

         While the Court is not suggesting that the claim Severson seeks to advance is cognizable in habeas or meritorious in nature, assuming it were, it does not relieve Severson of the burden of first presenting such claim to the state courts. Accordingly, there are still remedies available under state law. Because Severson has not yet exhausted his available state court remedies, ...


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