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Lamere v. Chinook

United States District Court, D. Montana, Great Falls Division

July 11, 2018

ELEANOR AHENAKEW LAMERE, Petitioner,
v.
CHINOOK, MONTANA; FORT BENTON, MONTANA; GREAT FALLS, MONTANA, et. al., Respondents.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE.

          John Johnston, United States Magistrate Judge.

         On July 6, 2018, Petitioner Eleanor Ahnakew Lamere filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] Although her exact custody/probation status is unclear, Ms. Lamere challenges a state conviction and is proceeding pro se.

         Rule 4 of the Rules Governing Section 2254 cases provides in pertinent part:

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.

         Based 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.

         28 U.S.C. § 2254 Petition

         On May 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).[2] 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." Id.

         Lamere 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.

         Lamere 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.

         A 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).[3] Lamere's opening appellate brief has not yet been filed.

         i. Analysis

         As a 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.

         Whether 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.

         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 ...


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