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Johnson v. Salmonsen

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

October 29, 2018

ALECK LEE JOHNSON, Petitioner,
v.
JAMES SALMONSEN, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED

          John Johnston United States Magistrate Judge.

         On October 26, 2018, Petitioner Aleck Lee Johnson, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Johnston is a state prisoner proceeding pro se.

         I. Motion to Proceed In Forma Pauperis

         Johnson has moved this Court to proceed in forma pauperis. (Doc. 2). Although he has failed to file the requisite inmate account statement, there is no reason to delay this action. Johnson's motion to proceed in forma pauperis will be GRANTED.

         II. 28 U.S.C. § 2254 Petition

         Johnson challenges a criminal conviction for Intimidation handed down in Montana's Eighth Judicial District Court, Cascade County, on November 26, 2017. (Doc. 1 at 2-3.) Following the entry of a guilty plea, Johnson was sentenced to 10 years in the Montana State Prison with 2 of the years suspended. Id. at 3.

         Johnson alleges the state court denied him credit for the time he served while he was released from custody after posting a $100, 000 bond. Id. at 4, ¶ 13(A).

         i. Analysis

         Johnson's 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. Johnson currently has an active appeal pending before the Montana Supreme Court. Id. at 6, ¶ 14; see also, State v. A. Johnson, DA 18-0062, Or. (filed Oct. 5, 2018)(granting Appellant an extension of time to Nov. 11, 2018, to file the opening brief).[1] Dismissal should be 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 violations of a prisoner's federal rights. Coleman v. Thompson, 501 U.S. 722, 731 (1991).

         To meet 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.

         As set forth above, a review of the Montana Supreme Court Docket reveals that Johnson has a direct appeal pending in which he is represented by counsel. While the Court makes no finding as to the merit of Johnson's claims, assuming Johnson 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. Accordingly, there are still remedies available to Johnson under state law, including direct and collateral review. Because Johnson 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 Johnson may return to this Court if and when he fully exhausts the claims relative to his current custody in the state courts.

         ii. Certificate of Appealability

         "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 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 ...


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