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Madsen v. Guyer

United States District Court, D. Montana, Billings Division

March 9, 2019

GLEN RAY MADSEN, Petitioner,
v.
LYNN GUYER, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE

         On January 19, 2019, Petitioner Glen Ray Madsen, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] Madsen is a state prisoner proceeding pro se.

         I. Motion to Proceed In Forma Pauperis

          Madsen has requested the Court to allow him to proceed in forma pauperis. (Doc. 2.) After reviewing the motion and supporting account statement, Madsen 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. 28 U.S.C. § 2254 Petition

         Madsen challenges a five-year prison sentence for Indecent Exposure handed down in Montana's Sixteenth Judicial District, Custer County. (Doc. 1 at 2-3.) Madsen apparently entered an Alford plea[2] to the offense. (Id. at 3, ¶5.) Madsen contends that his attorney provided him ineffective assistance of counsel when he failed to challenge the validity of the evidence against Madsen or challenge the existence of prior convictions used against Madsen for stacking purposes. (Id. at 4, f 13(A)(i)). Madsen acknowledges that he has not presented this claim to the state courts. Id. at 4-5. Madsen does not specify the relief he seeks from this Court. Id. at 7, ¶16.

         i. Analysis

         As a preliminary matter, this Court would note that Madsen previously filed a federal habeas petition challenging the calculation of his sentence. See, Madsen v. Guyer, CV-18-151-H, Pet. (filed Dec. 17, 2018). That matter was dismissed without prejudice as unexhausted. Madsen v. Guyer, CV-18-151-H, Or. (D. Mont. Feb. 1, 2019).

         Madsen has filed various original proceedings in the Montana Supreme Court challenging the conviction and sentence he is currently serving, although none of those actions raised the claim he seeks to advance in the instant petition.[3]But the Montana Supreme Court did recently grant Madsen's petition for an out-of-time appeal of his criminal sentence and appointed counsel to represent him. See, State v. G. Madsen, No. DA 19-0053, Or. (Mont. Feb. 5, 2019). Madsen's opening brief has not yet been filed, thus, it is unclear what claims he will raise.

         Madsen's pending petition should be dismissed because any claim he seeks to advance relative to the effectiveness of his counsel has not yet been exhausted in the state court system. Dismissal should be without prejudice.

         Federal courts may not grant a writ of habeas corpus brought by an individual in custody pursuant to a state court judgment unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. §2254(b)(1)(A). The exhaustion requirement is grounded in the principles of comity and gives states the first opportunity to correct alleged violations of a prisoner's federal rights. Coleman v. Thompson, 501 U.S. 722, 731 (1991).

         To meet the exhaustion requirement, a petitioner must (1) use the "remedies available," § 2254(b)(1)(A), through the state's established procedures for appellate review, O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); (2) describe "the federal legal theory on which his claim is based," Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008); and (3) describe "the operative facts ... necessary to give application to the constitutional principle upon which the petitioner relies," id See also Gray v. Netherlands 518 U.S. 152, 162-63 (1996) (discussing Picard v. Connor, 404 U.S. 270 (1971) md Anderson v. Earless, 459 U.S. 4 (1982)). A petitioner must meet all three prongs of the test in one proceeding.

         As set forth above, Madsen currently has an out of time direct appeal pending. Thus, Madsen may still be able to present the claim challenging the effectiveness of his counsel. Because there are still remedies available to Madsen under state law, he has not yet exhausted his available state court remedies and this Court cannot review the claim. See, Rose v. Lundy, 455 U.S. 509 (1982).

         Dismissal should be without prejudice and Madsen may return to this Court if and when he fully exhausts his ineffective ...


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