United States District Court, D. Montana, Missoula Division
RICHARD W. GILLINGHAM, Petitioner,
WARDEN GUYER; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.
ORDER AND FINDINGS AND RECOMMENDATION OF U.S.
Jeremiah C. Lynch United States Magistrate Judge
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.
February 15, 2019, Gillingham moved to proceed in forma
pauperis and filed an amended petition. He is a state
prisoner proceeding pro se.
Motion to Proceed In Forma Pauperis
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.
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was imposed in 2005 when a probationary term was revoked.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).
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).
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).
Certificate of Appealability
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
on the foregoing, the Court enters the following:
motion to proceed in forma pauperis (Doc. 8) is GRANTED. The