United States District Court, D. Montana, Great Falls Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JOHNSTON UNITED STATES MAGISTRATE JUDGE.
March 20, 2019, Petitioner Shayne Bertelsen, a state prisoner
proceeding pro se, filed documents seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. 
January of 2017, Mr. Bertelsen was convicted of Incest
following a jury trial in Montana's Eighth Judicial
District, Cascade County. Bertelsen previously filed a habeas
petition with this Court alleging that: he was convicted
using false evidence; he is actually innocent of the crime;
Child Protection Services unlawfully "coached" the
victim; exculpatory evidence was withheld in violation of
Brady v. Maryland, 373 U.S. at 83 (1963); and, law
enforcement officers failed" to investigate and colluded
with others to creating an illegal forensic interview. See
e.g., Bertelsen v. State, CV-17-48-GF-BMM, Pet.
(filed June 7, 2017). That matter was dismissed without
prejudice as unexhausted. Bertelsen v. State,
CV-17-48-GF-BMM, Or. (D. Mont. July 10, 2017).
instant matter, Bertelsen again advances similar claims. See
generally, (Doc. 1.) Additionally, the Court is aware that
Mr. Bertelsen currently has a direct appeal pending before
the Montana Supreme Court; it appears that briefing is
complete. See, State v. Bertelsen, DA
reasons discussed below, Bertelsen's petition should be
dismissed because the claims he advances relative to his
current custody have still not been exhausted. Dismissal
should be without prejudice.
Bertelsen was previously advised, 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).
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), and Anderson v.
Harless, 459 U.S. 4 (1982)). A petitioner must meet all
three prongs of the test in one proceeding.
forth above, Bertelsen has a direct appeal pending before the
Montana Supreme Court and there are still remedies available
to Bertelsen under state law. His direct appeal is not yet
concluded; he also has not yet sought collateral review,
including state postconviction relief or a state habeas
petition. Thus, Bertelsen has not yet exhausted his state
remedies. 28 U.S.C. §2254(c). Because Bertelsen has not
exhausted his available state court remedies, this Court
cannot review the claim. See, Rose v. Lundy, 455
U.S. 509 (1982). Dismissal should be without prejudice
allowing Bertelsen to return to this Court if and when he
fully exhausts the claims relative to his current custody in
the state courts.
Certificate of Appealability
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." Rule 11(a), Rules Governing § 2254
Proceedings. A COA should issue as to those claims on which
the petitioner makes "a substantial showing of the
denial of a constitutional right." 28 U.S.C. §
2253(c)(2). The standard is satisfied if "jurists of
reason could disagree with the district court's
resolution of [the] constitutional claims" or
"conclude the issues presented are adequate to deserve
encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). Where a claim is
dismissed on procedural grounds, the court must also decide
whether "jurists of reason would find it debatable
whether the district court was correct in its procedural
ruling." Gonzalez v. Thaler, ____ U.S.____, 132
S.Ct. 641, 648 (2012) (quoting Slack, 529 U.S. at
has not yet made a substantial showing that he was deprived
of a constitutional right. Further, because his petition is
unexhausted, reasonable jurists would find no basis to
encourage further proceedings. There are no close questions
and there is no reason to encourage further proceedings in
this Court. A certificate of appealability should be denied.
on the foregoing, the Court makes the following: