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Bertelsen v. State

United States District Court, D. Montana, Great Falls Division

March 21, 2019

SHAYNE BERTELSEN, Petitioner,
v.
STATE OF MONTANA, Respondent.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE.

         On 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. [1]

         In 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).

         In the 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 17-0555.[2]

         I. Analysis

         For the 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.

         As Mr. 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).

         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), and Anderson v. Harless, 459 U.S. 4 (1982)). A petitioner must meet all three prongs of the test in one proceeding.

         As set 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.

         II. Certificate of Appealability

         "The 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 484).

         Bertelsen 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.

         Based on the foregoing, the Court makes the following:

         RECO ...


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