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Brown v. Guyer

United States District Court, D. Montana, Helena Division

January 15, 2019

ANTHEL LAVAN BROWN, Petitioner,
v.
LYNN GUYER, Respondent.

          FINDINGS AND RECOMMENDATIONS OF MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge.

         This 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.

         I. 28 U.S.C. § 2254 Petition

         As set forth below, based upon a review of Brown's petition it appears the matter should be dismissed as an unauthorized second or successive petition.

         In 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).

         Brown 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).

         Brown 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);[1] Brown v. Mahoney, No. CV-06-63-H-DWM, Or. (D. Mont. filed June 25, 2007);[2] Brown v. Kirkegard, No. CV-15-11-M-DLC, Or. Dismissing Pet. (D. Mont. filed Feb. 9, 2015).[3] 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.)

         Under 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.

         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 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)).

         A 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.

         Based on the foregoing, the Court enters the following:

         RECO ...


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