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Fadely v. Salmonsen

United States District Court, D. Montana, Missoula Division

October 30, 2018

BRANDON THOMAS FADELY, Petitioner,
v.
JIM SALMONSEN, Respondent.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JEREMIAH C. LYNCH JUDGE

         This case comes before the Court on Petitioner Brandon Thomas Fadely's application for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) Fadely is a state prisoner proceeding pro se.

         1. 28 U.S.C. § 2254 Petition

         In 2014, following guilty pleas, Fadely was convicted of Sexual Intercourse without Consent and Sexual Assault in Montana's Twenty-First Judicial District, Ravalli County. Fadely claims his current custody is unlawful because the charges against him were not initiated by a grand jury, nor was he provided a preliminary hearing, in violation of the Montana Constitution and the United States Constitution. (Doc. 1 at 2, 5-9.) Fadely asks this Court to dismiss this convictions and order his release from custody. Id. at 9.

         On August 13, 2018, Fadely was directed to show cause as to why his petition should not be dismissed as time-barred and/or procedurally defaulted. (Doc. 3.) Fadely timely responded. (Doc. 6.)

         As explained below, Fadely's petition should be dismissed with prejudice because he has failed to demonstrate cause to excuse his untimely filing and the default of his claims.

         II. Analysis

         In his Response to this Court's Order, Fadely acknowledges that his federal habeas petition is untimely. (Doc. 6 at 1.) He explains that the underlying criminal proceeding was extremely stressful, particularly on his wife, and that he did not wish to cause further hardship by pursuing relief from the Montana Sentence Review Division. Id. Because he is untrained in the law, Fadely did not realize he was able to challenge the constitutionality of his underlying criminal proceedings. Id. at 2. Fadely claims that when he learned in June of 2018 he was "constitutionally entitled to a preliminary hearing," he began diligently researching his claim. Id.

         Fadely admits he did not attempt to present his constitutional claim to any of the state courts of Montana. Id. But he asserts that he learned that the state courts have endorsed the filing of an information as a valid charging procedure, rather than requiring an indictment by grand jury or providing a preliminary hearing, he believed the state courts to be biased and that pursuit of such claim would be futile. Id. Due to this perceived bias, Fadely seeks review in this Court, which does not "share the same predetermination." Id.

         i. Timeliness of Petition

          Fadely does not argue that he is actually innocent or that this Court was incorrect in calculating his federal filing date, rather, he asserts he should be entitled to equitable tolling due to adverse circumstances that prevented him from filing on time.

         The Ninth Circuit permits equitable tolling of AEDPA's limitations period "only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9thCircuit 1999); see also, Calderon v. U.S. Dist Ct, 163 F.3d 530, 541 (9th Cir. l998)(en banc), abrogated on other grounds by Woodford v. Garceau, 538 U.S. 202 (2003). For equitable tolling to apply a petitioner must show (1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way to prevent him from timely filing a federal habeas petition. Holland v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling is unavailable in most cases and "the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002); see also, Waldron Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9thCir. 2OO9)(characterizing the Circuit's application of the equitable tolling doctrine as "sparing" and "a rarity."). Further, the petitioner bears the burden of showing that equitable tolling is appropriate. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

         While the Court appreciates the criminal proceedings involved in Fadely's underlying convictions were undoubtedly stressful to him and to his wife, such stress is not unique to Fadely nor is it extraordinary. Certainly the majority of criminal defendants and their families endure stress and hardship attendant to a criminal prosecution and conviction.

         Additionally, while Fadely may have acted diligently once he discovered what he believed to be a constitutional violation, he failed to act with diligence prior to June of 2018. Fadely explains this by his lack of legal training and lack of legal representation. But, a petitioner's pro se status, limited legal resources, ignorance of the law, or lack of representation during the applicable filing period do not constitute ...


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