United States District Court, D. Montana, Great Falls Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF
Johnston United States Magistrate Judge.
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
Motion to Proceed In Forma Pauperis
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
U.S.C. § 2254 Petition
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.
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).
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). Dismissal should be without prejudice.
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
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.
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 ...