United States District Court, D. Montana, Butte Division
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE
Jeremiah C. Lynch United States Magistrate Judge
case comes before the Court on Petitioner Faircloth's
application for writ of habeas corpus. Faircloth is a state
prisoner proceeding pro se.
August 30, 2018, the Court ordered Faircloth to show cause
why his petition should not be dismissed without prejudice
because he failed to present his claims in the courts of the
State of Montana. Faircloth was also told that his failure to
respond would be deemed an admission that he did not exhaust
his claims and would result in a recommendation that his
petition be dismissed. See Order (Doc. 22) at 3. The
Court's docket indicates the order was mailed and does
not indicate it was returned.
did not respond to the Order.
issuing the Order, the Court reviewed all the documents filed
by the State (Docs. 16-1 through 16-33, 17-1) and by
Faircloth (Docs. 1, 6, 7, 9, 10, 13, 18, 19, 20). It
constructed a detailed timeline of the relevant events and
considered Faircloth's claims in light of all the
materials on file. It found that one or more claims might
Faircloth's claims concern actions of the Montana Board
of Pardons and Parole, he could have presented them to the
Montana Supreme Court in a petition for writ of habeas
corpus. Although such a petition might be dismissed or
denied, this Court is not aware of controlling statutory or
decisional law that would clearly preclude it. But, despite
the explanation of this option, see Order to Show
Cause (Doc. 22) at 2-3, Faircloth has not filed a state
habeas petition. See Montana Supreme Court, Active
Dockets & Closed Dockets, available at https://
supremecourtdocket.mt.gov (accessed Oct. 26, 2018).
Court may stay a wholly unexhausted federal habeas petition,
see Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016),
provided the petitioner has good cause for failing to exhaust
a potentially meritorious claim and has not dawdled,
see mines v. Weber, 544 U.S. 269, 278
(2005). Faircloth's failure to file in the Montana
Supreme Court, as well as his failure to respond to the Order
of August 30, suggest he has no good cause for failing to
exhaust his state remedies and indicate he is not interested
in pursuing this matter. His petition should be dismissed
without prejudice for failure to exhaust state remedies.
See 28 U.S.C. § 2254(b)(1)(A), (c); Rose v.
Lundy, 455 U.S. 509, 520 (1982).
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." Rule 11(a), Rules Governing § 2254
Proceedings. A COA should issue if the petitioner makes
"a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). Where a claim is
dismissed on procedural grounds, the court must also decide
whether "jurists of reason would find it debatable
whether the district court was correct in its procedural
ruling." Gonzalez v. Thaler, __ U.S. __, 132
S.Ct. 641, 648 (2012) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)).
one or more of Faircloth's claims might have merit,
reasonable jurists would agree that his failure to exhaust
his claims in the Montana Supreme Court, despite notice of
his opportunity to do so, is fatal. A COA is not warranted.
on the foregoing, the Court enters the following:
Faircloth's petition (Docs. 1, 6, 7, 9, 10, 13, 18, 19)
should be DISMISSED for failure to exhaust state remedies.
Clerk of Court should be directed to enter by separate