United States District Court, D. Montana, Helena Division
MORRIS UNITED STATES DISTRICT COURT FUDGE
Bobby Francis Lowry filed a petition seeking a writ of habeas
corpus under 28 U.S.C. §2254 on December 3, 2018. (Doc.
1.) Lowry was sentenced to the Montana State Prison for five
years following the entry of an Alford plea to the
offenses of Promotion of Prostitution and Partner or Family
applied for a transfer to New Mexico under the Interstate
Corrections Compact following his completion of certain
court-required programs. New Mexico rejected Lowry's
application because Lowry would be considered a sexual
offender under New Mexico law and Lowry's proposed
residence was in close proximity to a bus stop and park. New
Mexico law would not require Lowry to register as a sexual
offender, but it would impose conditions of supervision upon
argues that imposition of sentencing conditions upon him
whereby he essentially becomes a registered sex offender
violates his right to due process and to be free form ex post
facto law. (Doc. 1 at 3-4.) Lowry also contends that the
application of New Mexico law holds him accountable to legal
standards of a state in which he committed no offense.
Id. Lowry asks this Court to order that any sex
offender condition imposed by either Montana or New Mexico be
deemed illegal and grant any additional appropriate relief.
Id. at 6.
Judge John Johnston issued Findings and Recommendations in
this matter on January 31, 2019. (Doc. 5.) Judge Johnston
determined that habeas corpus relief was not available for
the allegations made by Lowry. Judge Johnston further
determined that Lowry had no federal constitutional right to
be housed in a particular prison or in a particular state.
Judge Johnston reasoned that the Interstate Corrections
Compact is not federal law giving rise to a liberty interest.
Judge Johnston recommended that Lowry's petition be
denied. Judge Johnston further recommended that a certificate
of appealability be denied.
timely objected to Judge Johnston's findings and
recommendations. (Doc. 6.) The Court reviews de novo Findings
and Recommendations timely objected to. 28 U.S.C. §
636(b)(1). The Court reviews for clear error the portions of
the Findings and Recommendations not specifically objected
to. McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). “A
party makes a proper objection by identifying the parts of
the magistrate's disposition that the party finds
objectionable and presenting legal argument and supporting
authority, such that the district court is able to identify
the issues and the reasons supporting a contrary
result.” Montana Shooting Sports Ass'n v.
Holder, 2010 WL 4102940, at *2 (D. Mont. Oct. 18, 2010)
(citation omitted). Where a party's objections constitute
perfunctory responses argued in an attempt to engage the
district court in a reargument of the same arguments set
forth in the original response, however, the Court will
review the applicable portions of the findings and
recommendations for clear error. Rosling v.
Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014)
(internal citations omitted).
has set forth a proper objection to Judge Johnston's
findings and recommendations. The Court will review Judge
Johnston's findings and recommendations de novo
to which Lowry has properly objected. Lowry properly objects
to Judge Johnston's findings and recommendations that
Lowry's claim does not arise under federal law. Lowry
further properly objects to Judge Johnston's
determination that Lowry's claim does not arise under
federal habeas corpus relief.
Ninth Circuit in Ghana v. Pearce, 159 F.3d 1206 (9th
Cir. 1998), analyzed a similar issue regarding whether the
Interstate Corrections Compact arises under federal law. The
Ninth Circuit discussed whether the district court properly
determined that a challenge to a transfer pursuant to the
Interstate Corrections Compact was properly brought under 42
U.S.C. § 1983. Ghana, 159 at 1207. The Ninth
Circuit determined that the interstate transfer of state
prisoners is “purely a local concern.”
Id. at 1208. The Ninth Circuit further determined
that “no federal interest absent some constitutional
violation in the treatment of these prisoners exists.”
Id. This Court is unable to provide relief,
therefore, under the Interstate Corrections Compact.
argues that he has properly constructed a federal habeas
claim. 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). Federal
habeas corpus relief is unavailable for violations of state
law or for alleged errors in the interpretation and
application of state law. Estelle v. McGuire, 502
U.S. 62, 67-68 (1991). Lowry does not possess a right to be
housed in a particular prison or particular state. Further,
Lowry's claim that New Mexico erred in its determination
that he would have to abide by certain conditions is New
Mexico's interpretation of its own state law. This claim
does not constitute a proper claim for habeas relief.
claim additionally does not constitute a federal habeas
corpus claim. Lowry does not challenge the fact duration of
his confinement. See Wilkinson v. Dotson, 544 U.S.
74, 79 (2005). Lowry's claim may have properly been
brought under 42 U.S.C. § 1983, rather than habeas
corpus because he challenges the conditions of his
confinement. See Id. The Ninth Circuit has
determined, however, that a liberty interest does not derive
from the Interstate Corrections Compact sufficient to
establish the basis for a Section 1983 action, or habeas
action. Ghana, 159 F.3d at 1209. Lowry has failed to
show that he was deprived of a constitutional right.
Lowry's objection is overruled.
IS ORDERED that Judge Johnston's Findings and
Recommendations (Doc. 5), are ADOPTED IN
FULL. Lowry's Petition, (Doc. 1), is
IS FURTHER ORDERED that the Clerk of Court is
directed to enter, by separate document, a judgment in favor
of Respondent and against Petitioner.
IS FURTHER ORDERED that a certificate of