United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE
February 14, 2019, Petitioner Deon Townsend filed a petition
challenging his continued detention under a fugitive from
justice warrant issued by the State of Idaho. See generally,
(Doc. 1 at 1-2); see also, (Doc. 3-1 at 5-15.)
Townsend seeks relief under 28 U.S.C. § 2241. 28 U.S.C.
§2241 "provides generally for the granting of writs
of habeas corpus by federal courts, implementing 'the
general grant of habeas authority provided by the
Constitution.'" Frantz v. Hazey, 533 F.3d
724, 735 (9th Cir. 2008 (en banc) (quoting
White v. Lambert, 370 F.3d 1002, 1006
(9th Cir. 2004). Section 2241 provides the
authority for granting habeas relief to a person "who is
not in custody pursuant to a state court judgment" but,
rather, who is in custody for some other reason, such a
pretrial detention or awaiting extradition. White,
370 F.3d at 1006. For the reasons explained below,
Townsend's petition should be dismissed for failure to
Courts are authorized by 28 U.S.C. §2241 to consider
petitions for habeas corpus." Castro-Cortez v.
INS, 239 F.3d 1037, 1047 (9th Cir. 2001),
abrogated on other grounds by Fernandez-Bargas v.
Gonzales, 548 U.S. 30 (2006). "That section does
not specifically require petitioners to exhaust direct
appeals before filing petitions for habeas corpus."
Id. The Ninth Circuit, however, "require[s], as
a prudential matter, that habeas petitioners exhaust
available judicial and administrative remedies before seeking
relief under §2241." Id.
Montana Legislature has specifically outlined the judicial
procedure an accused individual is to utilize when
challenging an arrest pursuant an extrajudicial warrant:
If the prisoner or the prisoner's counsel states that the
prisoner or the prisoner and counsel desire to test the
legality of the prisoner's arrest, the judge of the court
of record shall fix a reasonable time to be allowed the
prisoner within which to apply for a writ of habeas corpus.
When the writ is applied for, notice of the writ and of the
time and place of the hearing on the writ must be given to
the prosecuting officer of the county in which the arrest was
made and in which the accused is in custody and to the agent
of the demanding state.
Mont. Code. Ann. §46-30-217. Additionally, Townsend may
file a petition for a writ of habeas corpus as an original
proceeding with the Montana Supreme Court. See e.g., MCA
§46-22-202(1); see also, Thomas v. Doe, 2011 MT
283, ¶6, 362 Mont. 454, 266 P.3d 1255.
exhaustion requirement under Section 2241 may be waived or
excused in certain circumstances, including: where the remedy
provides no genuine opportunity for adequate relief, or
pursuit of the remedy would be futile; irreparable injury
might occur without immediate judicial relief; the remedial
proceedings would be void; or some instances of a complaining
party's raising a substantial constitutional question.
Liang v. Ashcroft, 370 F.3d 994, 1000-1001
(9th Cir. 1994).
the documents provided by Townsend indicate that he has
attempted to follow the procedure outlined in MCA
§46-30-217 to challenge his arrest and continued
detention. Likewise, the Montana Supreme Court docket reveals
Townsend has not initiated an original habeas
action. Nor has Townsend established that the
state judicial procedures available to him are futile or that
irreparable injury will occur without this Court's
has not provided a legal or factual basis for his failure to
challenge the Idaho warrant in the state courts. Accordingly,
Townsend's failure to exhaust his judicial remedies under
§2241 warrants dismissal of his petition. Dismissal
should be without prejudice, allowing Townsend to return to
this Court if and when he exhausts his state judicial
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 a
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,
has not demonstrated a substantial showing of the denial of a
constitutional right. Further, because Townsend has not
exhausted available judicial remedies, reasonable jurists