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Martin v. Department of Corrections

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

December 4, 2018

JASON BRYAN MARTIN, Petitioner,
v.
DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED

          JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE

         On November 18, 2018, Petitioner Jason Bryan Martin, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] Martin is a state prisoner proceeding pro se.

         I. Motion to Proceed In Forma Pauperis

         Martin has motioned the Court to allow him to proceed in forma pauperis. (Doc. 2.) Although he did not supply the requisite inmate account statement, it appears that Martin lacks sufficient funds to pay all costs that may be associated with this action. Accordingly, the motion to proceed in forma pauperis will be granted.

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

         Martin challenges a sentence imposed following revocation of his suspended sentence handed down in Montana's Twelfth Judicial District, Hill County, on June 23, 2017. (Doc. 1 at 2-3.) Following the revocation, Martin was committed to the Montana Department of Corrections for two (2) years and given credit for 39-days of time-served. Id. at 3. Martin contends the sentence he received upon revocation was facially invalid and that he was not properly credited for all the time he was due on his suspended sentence. In support of his position, Martin and attaches a copy of the writ of habeas corpus he filed with the Montana Supreme Court. Id. at 4, ¶ 14(A); see also, Doc. 1-1 at 1-13. Because Martin currently has an active direct appeal pending in which he is represented by counsel, the Montana Supreme Court declined to consider the merits of Martin's state habeas petition and dismissed the matter without prejudice. (Doc. 1-1 at 14-15.)

         Martin asks this Court to remand the matter to the state district court for resentencing in accordance with state law. (Doc. 1-1 at 12.)

         i. Analysis

         Martin'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. Lowry currently has a direct appeal pending before the Montana Supreme Court. See, State v. Martin, DA 17-0729, Or. (filed Nov. 8, 2018)(granting Appellant an extension of time to Dec. 14, 2018, to file and serve the opening brief).[2] 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. Netherland, 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 Martin has, in fact, been able to access the state courts. He has a direct appeal pending and is represented by counsel. While the Court appreciates Martin's frustration at the seemingly slow pace at which his direct appeal is progressing, it does not relieve him of the burden of first presenting his claims to the state courts. There are still remedies available to Martin under state law, including direct and collateral review. Because Martin 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 Martin may return to this Court if and when he fully exhausts the claim relative to his revocation and 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 ...


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