United States District Court, D. Montana, Helena Division
ORDER AND FINIDNGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Johnston, United States Magistrate Judge.
case comes before the Court on Petitioner Christopher
White's application for writ of habeas corpus under 28
U.S.C. § 2254. White is a state prisoner proceeding pro
Motion to Proceed in Forma Pauperis
White has sought leave of the Court to proceed in forma
pauperis. After reviewing White's motion and supporting
account statement, (Docs. 5 & 5-1), I find that he has
sufficiently shown he cannot afford to pay all costs that may
be associated with this action. The motion to proceed in
forma pauperis will be granted.
28 U.S.C. §2254 Petition
is currently serving a 4-year custodial sentence for a
conviction out of Montana's Thirteenth Judicial District,
Yellowstone County. (Doc. 1 at 2-3.) Although he has not
supplied much information, it appears that White reported an
incident, presumably to Montana State Prison (MSP) officials,
because he believed an MSP staff member had violated pro
visions of the PREA. Id. at 4. White contends that due
to this report, MSP staff then retaliated by unlawfully
writing White up for allegedly allowing another inmate to use
his phone account. Id.; see also, (Doc. 1-1 at 1-2)
(MSP disciplinary records).
asks this Court to protect him from further harmful acts by
MSP staff. (Doc. 1 at7, ¶16.)
preliminary matter, it does not appear that White's claim
sounds in habeas, because it constitutes a challenge to the
conditions of his confinement rather than the fact or
duration of his confinement. See e.g., Wilkinson v.
Dotson, 544 U.S. 74, 79 (2005) (explaining that an
action under 42 U.S.C. §1983, rather than habeas corpus,
is proper if success on the merits would not
"necessarily have meant immediate release or a shorter
period of incarceration"). Moreover, Federal habeas
corpus relief is available only for violations of the
Constitution or laws or treaties of the United States. See,
28 U.S.C. §2254(a); see also, Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). While the Court is
not commenting on the potential merits of White's claim,
assuming that he could present a cognizable habeas claim, he
still has not followed the requisite procedures.
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,
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.
Netherlands 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
acknowledges that he has chosen not to present his claim to
the Montana Supreme Court, because he believes doing so would
result in further retaliation and/or write-ups. (Doc. 1 at
4-5.) It is clear from the face of White's petition that
he has not presented his claim relating to the purported
retaliation to any state court. Thus, White has failed to
exhaust his claim. However, there may still be remedies
available to White under state law. Because White 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, Slack v.
McDaniel, 529 U.S. 473, 485-86 (2000), and White may
return to this Court if and when he fully exhausts the claim.
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
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 ...