Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Faircloth v. Montana Board of Pardons and Parole

United States District Court, D. Montana, Butte Division

October 26, 2018

JESSE LEE FAIRCLOTH, a/k/a JESSE LEE HOPKINS, Petitioner,
v.
MONTANA BOARD OF PARDONS AND PAROLE, Respondent.

          FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          Jeremiah C. Lynch United States Magistrate Judge

         This case comes before the Court on Petitioner Faircloth's application for writ of habeas corpus. Faircloth is a state prisoner proceeding pro se.[1]

         On 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.

         Faircloth did not respond to the Order.

         Before 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 have merit.[2]

         As 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).

         The 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).

         "The 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)).

         Although 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.

         Based on the foregoing, the Court enters the following:

         RECOMMENDATION

         1. Faircloth's petition (Docs. 1, 6, 7, 9, 10, 13, 18, 19) should be DISMISSED for failure to exhaust state remedies.

         2. The Clerk of Court should be directed to enter by separate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.