United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Johnston United States Magistrate Judge
6, 2018, Petitioner Lanny Wade Buehl filed this action under
28 U.S.C. § 2254.Buehl is a state prisoner proceeding pro
se. For the reasons set forth below, Buehl's petition
should be dismissed without prejudice as unexhausted.
Motion for Leave to Proceed in Forma Pauperis
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.
28 U.S.C. § 2254 Petition
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
Procedural History and Buehl's Claims
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). 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unclear, it appears that Buehl's suspended sentence was
revoked and he was placed at Montana State Prison.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.
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, ¶
appears that in March of 2018, Buehl appeared before the
Montana Board of Pardons and Parole. Buehl's parole was
revoked.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
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).
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).
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 ...