United States District Court, D. Montana, Great Falls Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Johnston, United States Magistrate Judge.
6, 2018, Petitioner Eleanor Ahnakew Lamere filed a petition
seeking a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Although her exact custody/probation
status is unclear, Ms. Lamere challenges a state conviction
and is proceeding pro se.
of the Rules Governing Section 2254 cases provides in
If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.
upon a review of Lamere's petition, as well as the
Montana Supreme Court's docket, it appears that Ms.
Lamere's petition should be dismissed without prejudice
for failure to exhaust.
U.S.C. § 2254 Petition
24, 2016, Ms. Lamere was convicted and sentenced for
Partner/Family Member Assault in the Great Falls Municipal
Court. (Doc. 1 at 2, f l). It appears that Lamere appealed her
conviction to Montana's Eighth Judicial District Court.
Id. Lamere indicates the matter was then
"kicked to the Montana State Supreme Court."
contends that Officer McLean, who was not the arresting
officer, committed perjury. (Doc. 1 at 4, |f 5(A)(i)). It
appears Lamere believes, based upon this perjured testimony,
that she was wrongfully convicted. Id. She also
contends Great Falls Municipal Court Judge Bolstad entered an
order of protection against her in violation of the Indian
Child Welfare Act (ICWA). Id.
seeks to use the vehicle of habeas corpus to raise a variety
of claims including: discrimination, witness tampering,
sexual and aggravated assault, breaking and entering,
slander, wrongful conviction, torture, terrorism, and
espionage. (Doc. 1 at 4, If 5(A)(ii)). Lamere also asks this
Court to initiate a federal criminal investigation into the
purported ICWA violation. Id.
review of the Montana Supreme Court Docket indicates that on
February 8, 2018, a Notice of Appeal from the December 17,
2017 judgment, entered in Montana's Eighth Judicial
District, was filed by counsel on Lamere's behalf.
See State v. E. Lamere, DA 18-0087, Not. of App.
(filed Feb. 8, 2018). Lamere's opening appellate brief has
not yet been filed.
preliminary matter, Lamere is advised that federal habeas
courts shall entertain a petition for writ of habeas corpus
only on the ground that the petitioner "is in custody in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. §2254(a). "[T]he
essence of habeas corpus is an attack by a person in custody
upon the legality of that custody..." Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973). Additionally,
federal habeas corpus relief does not lie for errors of state
law. Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
see also, Peltier v. Wright, 15 F.3d 860, 861061
(generally federal habeas corpus relief is unavailable for
alleged errors in interpretation and application of state
law). Thus, unless an issue of federal constitutional or
statutory law is implicated by the facts presented, the claim
is not cognizable via a petition for federal habeas corpus
relief. Estelle v. McGuire, 502 U.S. 62, 68 (1991).
While the Court is not commenting on the merits of
Lamere's present claims, it appears that they may not be
cognizable in federal habeas.
or not Lamere's claims are cognizable, the primary issue
with her petition as it stands is that any claims she seeks
to advance relative to her current conviction and/or custody
have not yet been exhausted in the state courts. Accordingly,
her petition should be dismissed without prejudice.
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 ...