United States District Court, D. Montana, Helena Division
FINDINGS AND RECOMMENDATIONS OF MAGISTRATE
Johnston United States Magistrate Judge.
case comes before the Court on Anthel LaVan Brown's
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. Brown is a state prisoner proceeding pro se.
28 U.S.C. § 2254 Petition
forth below, based upon a review of Brown's petition it
appears the matter should be dismissed as an unauthorized
second or successive petition.
1976, following pleas of guilty to felony theft, sexual
assault, robbery, aggravated assault, and deliberate
homicide, in Montana's Eighteenth Judicial District,
Brown received a net prison sentence of 190 years.
See, Judg. (Doc. 1-1 at 22-23).
first sought federal habeas corpus relief in 1980 on the
ground that his guilty pleas were entered involuntary.
Brown's petition was denied. See, Brown v.
Crist, 492 F.Supp. 965 (D. Mont. 1980). The Ninth
Circuit affirmed the denial of Brown's habeas petition.
Brown v. Crist, 654 F.2d 728 (Table) (9th Cir.
1981). Brown's petition for writ of certiorari was
likewise denied. Brown v. Crist, 454 U.S. 1087, 102
S.Ct. 648 (Mem.) (1981).
has also advanced challenges to actions taken by the Montana
Board of Pardons and Parole in denying his release as well as
purported constitutional violations, including a violation of
his Fifth Amendment privilege against self-incrimination.
See e.g., Brown v. Mahoney, No.
CV-04-66-H-DWM, Or. Den. Pet. (D. Mont. filed March 15,
2006); Brown v. Mahoney, No.
CV-06-63-H-DWM, Or. (D. Mont. filed June 25,
2007); Brown v. Kirkegard, No.
CV-15-11-M-DLC, Or. Dismissing Pet. (D. Mont. filed Feb. 9,
2015). In the instant petition Brown alleges the
state district court erred by accepting Brown's guilty
pleas because the court should have recognized, and protected
Brown from, his mental illness. (Doc. 1 at 2-4.)
Ninth Circuit precedent, a habeas petition is second or
successive if it raises claims that were or could have been
adjudicated on the merits in an earlier § 2254 petition.
McNabb v. Yates, 576 F.3d 1028, 1029 (9th
Cir. 2009). Brown has previously been advised that until he
obtains leave from the Ninth Circuit Court of Appeals to file
a successive habeas petition, under 28 U.S.C. § 2244(b),
this Court has no jurisdiction to hear his claims.
See, Brown v. Kirkegard, No.
CV-15-11-M-DLC, Or.at 2. (D. Mont. Feb. 9, 2015)(citing
Burton v. Stewart, 549 U.S. 147, 149 (2007)(per
curiam)). Because Brown has not sought and obtained the
appropriate authorization, his petition should be dismissed.
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 a
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)).
certificate of appealability should be denied because there
is no doubt this Court lacks jurisdiction and there is no
basis to encourage further proceedings at this time.
on the foregoing, the Court enters the following: