United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE
January 19, 2019, Petitioner Glen Ray Madsen, filed a
petition seeking a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Madsen is a state prisoner proceeding pro
Motion to Proceed In Forma Pauperis
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
28 U.S.C. § 2254 Petition
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 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
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).
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.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.
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.
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,
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.
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).
should be without prejudice and Madsen may return to this
Court if and when he fully exhausts his ineffective