United States District Court, D. Montana, Butte Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.
September 26, 2018, Petitioner Bobby Francis Lowry, filed a
petition seeking a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Lowry is a state prisoner proceeding pro
Motion to Proceed In Forma Pauperis
has failed to pay the $5.00 filing fee as directed by this
Court. See, (Doc. 3.) But because there is no reason to delay
this action, Lowry's motion to proceed in forma pauperis
(Doc. 2) will be GRANTED.
28 U.S.C. § 2254 Petition
challenges a criminal conviction for the Promotion of
Prostitution handed down in Montana's Eighteenth Judicial
District Court, Gallatin County, on August 23, 2017. (Doc. 1
at 1.) Following the entry of an Alford plea, Lowry
was sentenced to a 5-years in the Montana State Prison.
Id. Although it is unclear exactly what federal
constitutional claims he is attempting to advance before this
Court, Lowry seems to generally allege that he has been
denied access to the state courts and has, accordingly, been
unable to challenge his purportedly unlawful conviction.
Id. at 2-3. Lowry asks this Court to order the
Montana Supreme Court to accept his notice of appeal and
"thus begin the process of correcting the malicious
behavior bestowed upon [him], by his forced incarceration
until said time that [he] agreed to take a [plea] to a crime
he was not guilty of." Id. at 3.
petition should be dismissed because any claims he seeks to
advance relative to his current custody have not yet been
exhausted in the state court system. Lowry currently has a
direct appeal pending before the Montana Supreme Court. See,
State v. B. Lowry, DA 17-0413, Or. (filed Oct. 17,
2018)(granting Appellee's extension of time to Dec. 17,
2018, to file response brief). Dismissal should be without
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 violations of a prisoner's
federal rights. Coleman v. Thompson, 501 U.S. 722,
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. See also Gray v. Netherlands 518
U.S. 152, 162-63 (1996) (discussing Picard v.
Connor, 404 U.S. 270 (1971) and Anderson v.
Harless, 459 U.S. 4 (1982)). A petitioner must meet all
three prongs of the test in one proceeding.
forth above, a review of the Montana Supreme Court Docket
reveals that Lowry has, in fact, been able to access the
state courts. He has a direct appeal pending and is
represented by counsel. While the Court makes no finding as
to the merit of the claims Lowry seeks to present, assuming
Lowry could state cognizable constitutional claims at this
juncture, it does not relieve him of the burden of first
presenting such claims to the state courts. There are still
remedies available to Lowry under state law, including direct
and collateral review. Because Lowry has not yet exhausted
his available state court remedies, this Court cannot review
the claim. See, Rose v. Lundy, 455 U.S. 509 (1982).
Dismissal is without prejudice and Lowry may return to this
Court if and when he fully exhausts the claims relative to
his current custody in the state courts.
Certificate of Appealability
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 as to those claims on which
the petitioner makes "a substantial showing of the
denial of a constitutional right." 28 U.S.C. §
2253(c)(2). The standard is satisfied if "jurists of
reason could disagree with the district court's
resolution of [the] constitutional claims" or
"conclude the issues presented are adequate to deserve
encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). 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, 529 U.S. at 484).
has not made a substantial showing that he was deprived of a
constitutional right. Further, because his petition is
unexhausted, reasonable jurists would find no basis to
encourage further proceedings. There are no close questions
and there is no reason to encourage ...