United States District Court, D. Montana, Butte Division
WILLIAM L. BROWN, Petitioner,
JAMES SALMONSEN, Respondent.
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.
case comes before the Court on state pro se Petitioner
William L. Brown's application for writ of habeas corpus
under 28 U.S.C. § 2254. On January 15, 2019, Brown was
ordered to show cause as to why his petition should not be
dismissed as time-barred and procedurally defaulted and was
advised of the ways in which he might make such a showing.
See generally, (Doc. 7.) Brown timely responded. (Doc. 9.)
Because Brown has failed to make the requisite showing to set
aside the procedural bars, his petition will be recommended
for dismissal with prejudice.
a jury trial in Montana's Third Judicial District, Brown
was sentenced in 2002 to a 110-years in the Montana State
Prison for for deliberate homicide and use of a weapon. (Doc.
6 at 1, Â¶Â¶ 1-4; 6.) Brown timely filed a direct
appeal. Id. at, Â¶ 8.
19, 2003, the Montana Supreme Court confirmed Brown's
convictions. See, State v. Brown, 2003 MT 166, 316
Mont. 310, 71 P.3d 1215. Brown did not file petition for
certiorari in the United States Supreme Court nor did he seek
postconviction relief in the state district court. (Doc. 6 at
3, Â¶Â¶ 10-11.) Accordingly, for purposes of federal review,
Brown's conviction was final on Wednesday, September 17,
2003. See, 28 U.S.C. § 2244(d)(1)(A); Bowen v.
Roe, 118 F.3d 1157, 1159 (9th Cir. 1999);
Griffith v. Kentucky, 479 U.S. 314, 321 n. 6 (1987).
November 19, 2018, Brown filed a petition for writ of habeas
corpus in the Montana Supreme Court. See, Brown v.
Guyer, OP 18-0655, Pet. (filed Nov. 19,
2018). Brown argued the district court violated
his right against self-incrimination and contended that
because he chose to remain silent, the court in imposing an
unduly harsh sentence, violated his right to due process.
Brown v. Guyer, OP 18-0655, Or. at 2 (Mont. Nov. 28,
2018). The Montana Supreme Court did not address
the merits of Brown's petition finding that it was
untimely and procedurally barred under Mont. Code Ann. §
filed his petition in this Court on December 15,
2018. Brown was subsequently advised that his
petition was filed more than fourteen years too late and that
his claims were procedurally defaulted because the Montana
Supreme Court had not considered the merits of his claims
under federal law. (Doc. 7 at 3-5.) Brown was directed to
show cause as to why his petition should not be dismissed.
initially cites to 28 U.S.C. § 2244(a) and argues that
because he has never been able to file any challenge to the
purported unconstitutional acts of the state district court,
this Court must entertain his application. See, (Doc. 9 at
1-2.) Brown then cites to 28 U.S.C. §2255 and argues
that because he is asserting a violation of the United States
Constitution, this Court must hear his claims. Id.
at 2. Finally, Brown states that, pursuant to
§2255(f)(4), there was no way through the exercise of
due diligence that he could have discovered the facts
underlying his claim, because he is unlearned in the law.
Id. Brown explains that it was only after
"years of research, learning, and talking with other
inmates who possessed more knowledge of the law [than]
himself that he was able to realize and appreciate the
constitutional violation that had occurred. Id.
Brown states that as soon as he became aware of the
violation, he filed his petition. Id. Brown does not
dispute that his petition is untimely or that his claims are
procedurally defaulted, rather he urges this Court to
consider his claim in the interest of justice. Id.
preliminary matter, 28 U.S.C. § 2244(a), is a provision
dealing with second or successive petitions. By Brown's
own acknowledgment, prior to the present action, he has never
filed an application for habeas corpus relief in this Court.
Thus, § 2244(a) is inapplicable to him. Likewise, Brown
references 28 U.S.C. §2255. But, that section applies
only to individuals in federal custody. Because Brown is in
state custody, §2255 also does not apply.
is, however, a corresponding federal provision, 28 U.S.C.
§2254, that protects Brown, as a state prisoner, from
constitutional violations. That is the statutory provision
under which Brown has filed his petition. See e.g., (Doc. 6
at 1.) But, even though Brown, like all state prisoners, has
a right to raise a federal constitutional challenge, he still
must comply with jurisdictional and procedural requirements,
including proper exhaustion and filing deadlines.
petitioner may escape statutory filing deadlines if he can
show he has been pursuing his rights diligently, but an
extraordinary circumstance stood in his way and prevented
timely filing. See, Holland v. Florida, 560 U.S.
631, 649 (2010). As a preliminary matter, Brown has failed to
show that he acted with the requisite diligence. While he may
not have been able to articulate the exact constitutional
violation he attempted to assert, Brown acknowledges that he
"knew in his gut" that something was wrong. See,
(Doc. 9 at 2.) Brown was present for the sentencing hearing
in January of 2002 during which he alleges the district court
increased his sentence for his failure to show remorse. Brown
admits he knew something was wrong following this proceeding,
but then failed to act for over fourteen years. Brown has
provided no explanation for this lack of diligence.
extent that Brown seems to argue that his alleged lack of
legal sophistication and/or legal assistance constitute an
"extraordinary circumstance" to warrant equitable
tolling of the limitations period, the argument lacks merit.
See, Waldron-Ramsey v. Pacholke,556 F.3d 1008, at
1013 n. 4 (9th Cir.) (cert denied, 558 U.S. 897
(2009) ("we have held that a pro se petitioner's
confusion or ignorance of the law is not, itself, a
circumstance warranting equitable tolling" (citation
omitted); Ford v. Piler,590 F.3d 782, 789
(9th Cir. 2009); see also, Rasberry v.
Garcia,448 F.3d 1150, 1154 (9th Cir. 2006)
(a petitioner's pro se status, limited legal resources,