United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Timothy J. Cavan, United States Magistrate Judge.
case comes before the Court on Petitioner Leslie Ernst's
application for writ of habeas corpus under 28 U.S.C.
§2254, April 2, 2018. Ernst 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.
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. Ernst 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, Ernst's motion will be GRANTED.
Supplement to Petition
Supplement to his Petition, Ernst asks this Court to dismiss
Privacy in Communications convictions out of the Thirteenth
Judicial District, Yellowstone County, in Cause No.
DC-13-0800. (Doc. 4 at l). The argument is premised upon what
Ernst believes to be a faulty and unconstitutional state
criminal charging process utilized in felony prosecutions.
Id. Ernst 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 Ernst 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
(l97O)("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 Ernst. To the
extent that the Supplement (Doc. 4) is construed as a Motion
to Dismiss, the motion is DENIED.
has a direct appeal pending, although his opening brief has
not yet been filed. See State v. L. Ernst, No. DA
17-0504. 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. Netherlands 518
U.S. 152, 162-63 (1996) (discussing Picardv. 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.
the Court is not suggesting that the claim Ernst seeks to
advance is cognizable in habeas or meritorious in nature,
assuming it were, it does not relieve Ernst of the burden of
first presenting such claim to the state courts. As evidenced
by his pending appeal, there are still remedies available
under state law. Because Ernst has not yet exhausted his
available state court remedies, ...