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Brown v. Salmonsen

United States District Court, D. Montana, Butte Division

February 19, 2019

WILLIAM L. BROWN, Petitioner,
v.
JAMES SALMONSEN, Respondent.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. Procedural History

         Following 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, ¶¶ 1-4; 6.) Brown timely filed a direct appeal. Id. at, ¶ 8.

         On June 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, ¶¶ 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).

         On 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).[1] 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).[2] 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. § 46-22-101(1). Id.

         Brown filed his petition in this Court on December 15, 2018.[3] 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.

         II. Brown's Response

         Brown 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.

         III. Analysis

         As a 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.

         There 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.

         A 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.

         To the 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, ...


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