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Ritesman v. Salmonson

United States District Court, D. Montana, Missoula Division

June 1, 2018



          Jeremiah C. Lynch, United States Magistrate Judge

         On May 30, 2018, Petitioner Timothy Eric Ritesman, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Ritesman is a state prisoner proceeding pro se.

         I. Motion for Stay

         Ritesman has requested leave of this Court to stay and hold his habeas in abeyance while he exhausts his state court remedies. (Doc. 2). As explained below, the bulk of Ritesman's claims are unexhausted and Ritesman still has state avenues of review available to him. Accordingly, his petition should be dismissed without prejudice and his request for a stay is DENIED.

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

         Following a jury trial in Montana's Fourth Judicial District, Missoula County, Ritesman was convicted of Aggravated Assault and Violation of a No-Contact Order. (Doc. 1 at 2). Written judgment was entered on May 25, 2016; Ritesman received a fifteen-year prison sentence, with seven of the years suspended for the Aggravated Assault. Id. The six-month sentence for the misdemeanor no contact order violation was ordered to run concurrently to the prison sentence.

         Ritesman timely filed a direct appeal and argued that the prosecutor deprived him of a fair trial based upon argument presented in her closing argument and that the conditions of release in an unrelated misdemeanor Partner Family Member Assault were not sufficient to support a conviction for violating a no-contact order. On March 20, 2018, the Montana Supreme Court affirmed the Aggravated Assault conviction and reversed the Violation of a No-Contact Order conviction. State v. Ritesman, 2018 MT 55, 390 Mont. 399, 414 P.3d 261.

         In the instant petition, Ritesman alleges: 1) the prosecutor committed misconduct, (doc. 1 at 4, ¶ 15(A); 2) his Sixth Amendment right to effective assistance of counsel was violated, id. at 4, ¶ 15(B); 3) his Fourth Amendment rights were violated by an intentional denial of several witnesses critical to the defense, id.; and, his right to Due Process of law was violated. Id. Ritesman asserts he intends to amend and add additional claims to his petition after he has exhausted his state remedies. Mat 5. Although Ritesman provides no case numbers or filing dates, he indicates that his state postconviction and habeas petitions are "in progress." (Doc. 1 at 4, 15(A)(5)).

         i. Analysis

         For the reasons discussed below, Ritesman's petition should be dismissed because the claims he intends to advance relative to his current custody have not yet been exhausted.[1] Dismissal should be without prejudice.

         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. 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.

         As evidenced by his intention to file both a postconviction petition and a state habeas corpus petition, there are still remedies available to Ritesman under state law. Because Ritesman has not yet exhausted his available state court remedies, this Court cannot review the claims. See Rose v. Lundy, 455 U.S. 509 (1982). Dismissal is without prejudice and Ritesman may return to this Court if and when he fully exhausts the claims relative to his current custody in the state courts.

         ii. Certificate ...

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