United States District Court, D. Montana, Butte Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JOHNSTON UNITED STATES MAGISTRATE JUDGE
October 24, 2018, Petitioner Bobby Francis Lowry, filed a
petition seeking a writ of habeas corpus pursuant to 28
U.S.C. § 2254. (Doc. 1.) Lowry is a state prisoner
proceeding pro se.
Motion to Proceed In Forma Pauperis
has moved this Court to proceed in forma pauperis. See, (Doc.
2.) After reviewing the motion and supporting account
statement, it appears Lowry has sufficiently shown he cannot
afford to pay all costs that may be associated with this
action. Lowry's motion to proceed in forma pauperis will
28 U.S.C. § 2254 Petition
who is apparently legally deaf, alleges that on May 22, 2018,
he was unlawfully written up while in custody of the Montana
State Prison, because he could not understand and
appropriately respond to inquiries from prison authorities.
(Doc. 1 at 3.) Lowry explains that this unlawful write-up has
resulted in a delay in his consideration for an Interstate
Compact and also a failure of the Montana Department of
Corrections (DOC) to bring him before the Board of Pardons
and Parole in a timely manner. Id. at 4-5. Further,
Lowry asserts he has been unlawfully discriminated and
retaliated against by the DOC due to his disability.
Id. at 5-6.
asks this Court to order the DOC to strike any mention of the
May 2018 write-up from its records, order the DOC to expedite
his release, and to grant any additional relief this Court
deems appropriate. Id. at 6.
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. On October 24, 2018,
Lowry filed a state habeas petition with the Montana Supreme
Court. See, Lowry v. Salmonsen, OP 18-0610, Pet.
(filed Oct. 24, 2018). Aside from a few minor grammatical
changes, the document Lowry filed in the state court is
nearly identical to the petition he filed in this Court.
Cf., Id. at 1-6, with (Doc. 1 at 2-6.) The
Montana Supreme Court issued an Order to the State to respond
to Lowry's petition, however, the response was not due
until November 30, 2018. See, Lowry v. Salmonsen, OP
18-0610, Or. (filed Oct. 31, 2018). Because Lowry's state
habeas matter is currently active, his federal petition
should be dismissed.
Court previously advised Lowry of the requirement, under 28
U.S.C. § 2254(b)(1)(A), that an individual exhaust his
remedies in the state court system before he is able to file
a federal habeas petition. See, Lowry v. Salmonsen,
CV-18-63-BMM-JCL, Find. & Rec., at 2-4 (filed Oct. 29,
2018). Lowry was also advised of the steps he would need to
take to properly exhaust his claims. Id. That matter
was ultimately dismissed as unexhausted. Lowry v.
Salmonsen, CV-18-63-BMM-JCL, Or. (D. Mont. Nov. 29,
Lowry must continue through one complete round of state
proceedings to properly exhaust his pending claims. Until he
does so, this Court cannot review the petition. 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
“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 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
has not yet 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 ...