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Gillingham v. Guyer

United States District Court, D. Montana, Missoula Division

February 26, 2019

RICHARD W. GILLINGHAM, Petitioner,
v.
WARDEN GUYER; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          Jeremiah C. Lynch United States Magistrate Judge

         On January 3, 2019, Petitioner Gillingham submitted a “petition for court access.” On January 7, he was ordered to pay the filing fee or move to proceed in forma pauperis. He was also given an opportunity to submit an amended petition to explain why he believes he is entitled to relief. See Order (Doc. 2) at 1-2.

         On February 15, 2019, Gillingham moved to proceed in forma pauperis and filed an amended petition. He is a state prisoner proceeding pro se.

         I. Motion to Proceed In Forma Pauperis

         After reviewing the motion and supporting account statement, I find that Gillingham 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.

         II. Amended Petition

         Gillingham is currently serving a prison term of 45 years. The sentence was imposed in 2005 when a probationary term was revoked. See, e.g., Judgment (Doc. 10-1), State v. Gillingham, No. 10313 (Aug. 6, 1993), filed in Gillingham v. Kirkegard, No. CV 12-162-M-DLC-JCL (D. Mont. filed Jan. 15, 2013 (Doc. 10-1)); Am. Pet. (Doc. 7) at 38 ¶¶ 1-2; Am. Pet. Ex. 1 (Doc. 7-1) at 1; State v. Gillingham, 2008 MT 38 ¶¶ 16, 30 (Mont. Feb. 5, 2008).

         All of Gillingham's claims, see Pet (Doc. 1) at 1-2; Am. Pet. (Doc. 7) at 3- 39, were or could have been raised in the second habeas petition he filed in this Court. See Order (Doc. 17), Findings and Recommendation (Doc. 13), Gillingham, No. CV 12-162-M (D. Mont. filed Sept. 21, 2012) (denying petition for lack of merit); see also Order (Doc. 6), Gillingham v. Harkin, No. CV 06-16-M-DWM-LBE (D. Mont. May 23, 2006) (dismissing petition for failure to exhaust state remedies).

         The amended petition must be dismissed because this Court lacks jurisdiction to hear it. See 28 U.S.C. § 2244(b); Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam); Hill v. Alaska, 297 F.3d 895, 898-99 (9th Cir. 2002); see also Order (Doc. 11), Gillingham v. Kirkegard, No. CV 13-77-M-DWM-JCL (D. Mont. June 17, 2013) (dismissing petition as unauthorized second or successive application); Order (Doc. 2), Gillingham v. Kirkegard, No. 14-212-M-DLC (D. Mont. Sept. 22, 2014) (same).

         III. Certificate of Appealability

         Gillingham's claims appear to lack merit, but no reasonable jurist could find the instant petition is anything other than an unauthorized second or successive application. A COA should be denied.

         Based on the foregoing, the Court enters the following:

         ORDER

         Gillingham's motion to proceed in forma pauperis (Doc. 8) is GRANTED. The clerk ...


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