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Buehl v. Fox

United States District Court, D. Montana, Helena Division

June 29, 2018

LANNY WADE BUEHL, Petitioner,
v.
TIM FOX, ATTORNEY GENERAL OF THE STATE OF MONTANA; R. JONES; Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge

         On June 6, 2018, Petitioner Lanny Wade Buehl filed this action under 28 U.S.C. § 2254.[1]Buehl is a state prisoner proceeding pro se. For the reasons set forth below, Buehl's petition should be dismissed without prejudice as unexhausted.

         I. Motion for Leave to Proceed in Forma Pauperis

         Buehl moves for leave to proceed in forma pauperis. (Doc. 2). After reviewing the motion and supporting account statement, I find that Buehl has sufficiently shown he cannot afford to pay all costs that may be associated with this action. The motion to proceed in forma pauperis will be GRANTED.

         I. 28 U.S.C. § 2254 Petition

         The Court is required to screen all actions brought by prisoners who seek relief. 28 U.S.C. § 1915(a). The Court must dismiss a habeas petition or portion thereof if the prisoner raises claims that are legally frivolous or fails to state a basis upon which relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). The Court must dismiss a habeas petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 Governing Section 2254 Cases. Because Mr. Buehl's petition is unexhausted, it should be dismissed.

         II. Procedural History and Buehl's Claims

         In August of 2011, following a plea of guilty to Assault with a Weapon, in Montana's Ninth Judicial District, Glacier County, Buehl was sentenced to a 10-year suspended sentence. See, Pet. (Doc. 1 at 2-3).[2] Although the exact date is unclear, it appears that Buehl's suspended sentence was revoked and he was placed at Montana State Prison. Id. at 2, 2. Buehl was subsequently released on parole.

         On February 1, 2018, Buehl was arrested by an officer of the Poison Police Department and was transferred to the detention center in Kalispell, Montana. Id. at 8. That same day, Buehl was advised of his alleged parole violations. Id. On February 7, 2018, a preliminary hearing occurred. Buehl asserts that the hearing was not held onsite in Poison, where he was being supervised, and that the hearing did not occur within the timeline provided by statute. Id. Because of this, Buehl contends his right to due process was violated. Id. at 4, ¶ 13(A)(i).

         It appears that in March of 2018, Buehl appeared before the Montana Board of Pardons and Parole.[3] Buehl's parole was revoked. He was scheduled to appear again before the Board in February of 2019. He was also ordered to obtain an updated chemical dependency evaluation and enter pre-release. Buehl was advised he could request a return to appear before the Board after an appropriate period of residency at pre-release.[4]

         Buehl acknowledges he has not presented his due process claim to the Montana Supreme Court. (Doc. 1 at 4, l3(A)(ii), (iii). Buehl asks this Court to order the reinstatement of his parole. (Doc. 1 at 7, ¶ 16).

         III. Analysis

         A state prisoner must exhaust his state court remedies before petitioning for a writ of habeas corpus in federal court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). 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-of-state-remedies doctrine, now codified at 28 U.S.C. §§ 2254(b) and (c), reflects a policy of federal-state comity, an accommodation of our federal system designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks and citation omitted).

         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. Seealso Gray v. Netherland, 518 U.S. 152, 162-63 (1996). A petitioner must meet all three prongs of the test in one proceeding. "Mere 'general appeals to broad constitutional principles, such as due process, equal ...


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