United States District Court, D. Montana, Missoula Division
TRACEY R. GODFREY, Petitioner,
LYNN GUYER, Respondent.
ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF
L. CHRISTENSEN, CHIEF JUDGE
April 1, 2019, the Court received from Petitioner Godfrey a
document purporting to be a petition for writ of habeas
corpus under 28 U.S.C. § 2241. See Pet. (Doc.
1) at 1. As Godfrey is a prisoner, the filing date of the
document is March 25, 2019. See Houston v. lack, 487
U.S. 266, 276 (1988). The petition crossed in the mail with
the Court's order rejecting virtually identical
arguments. See Order (Doc. 13), Godfrey v.
Kirkegard, No. CV 14-27-M-DLC (Do. Mont. Mar. 26, 2019).
is continuing to serve a sentence imposed in 2000 in Ravalli
County. In 2013, the Montana Supreme Court ordered that
Godfrey be resentenced, and the trial court imposed
substantially the same sentence originally imposed,
consisting of a 60-year term with 30 of those years
suspended. See Pet. (Doc. 1) at 1; CON Network,
https://app.mt.gov/conweb (accessed Apr. 1, 2019).
2014, Godfrey filed a federal habeas petition, claiming his
resentencing constituted double jeopardy and arguing that,
properly understood, his sentence expired in 2010. The
petition and a certificate of appealability were denied.
See, e.g., Findings and Recommendation (Doc. 3);
Order (Doc. 7), Godfrey v. Kirkegard, No. CV
14-27-M-DLC (D. Mont, filed Jan. 27, 2014). The Court of
Appeals denied a certificate of appealability on August 8,
2014. See 9th Cir. Order (Doc. 11), Godfrey v.
Kirkegard, No. 14-35405.
thereafter, Godfrey filed two more petitions, each
challenging the 2013 Ravalli County judgment. Those petitions
were dismissed as unauthorized second or successive
applications for habeas relief under 28 U.S.C. § 2254.
See Order (Doc. 7), Godfrey v. Kirkegard,
No. CV 14-164-M-DLC (D. Mont. June 12, 2014) (habeas petition
alleging new claim); Order (Doc. 2), Godfrey v.
Kirkegard, No. CV 14-190-M-DLC (D. Mont. June 20, 2014)
(petition for writ of error coram nobis).
again, Godfrey petitions this Court, on this occasion under
§ 2241, claiming that his state sentence expired in
2010. What is different from his earlier petitions is the
legal consequence he draws from this assertion. He claims
both that this Court's denial of his first federal habeas
petition was "an impermiss[i]ble . advisory
opinion" and that the state court case, No. DC 99-114,
"was moot as of Oct. 22nd 2010."
for the moment, that a petition under 28 U.S.C. § 2241
is available to Godfrey, he is not entitled to relief. Had
the Montana Supreme Court, this Court, or the Ninth Circuit
Court of Appeals accepted Godfrey's central assertion
that his sentence expired in 2010, he would not now be in
custody. But every court has rejected his assertion. See,
e.g., Order at 1, Godfrey v. Kirkegard, No. OP
14-0306 (Mont. June 3, 2014) (noting and rejecting
Godfrey's argument "that he has completed serving
the 'legal portion' of the original persistent felony
offender sentence often years."); Order (Doc. 7) at 2
(noting and rejecting Godfrey's claim that he was
resentenced "after he allegedly discharged that
sentence"), Godfrey, No. CV 14-27-M (D. Mont.
May 2, 2014); Order (Doc. 5), Godfrey v. Kirkegard,
No. 14-35405 (9th Cir. Aug. 8, 2014) (denying pending motions
for counsel, coram nobis relief, and amendment to coram nobis
claim as moot for lack of substantial showing of violation of
this Court has already rejected the argument, however, it
lacks jurisdiction over Godfrey's current reassertion of
it-not due to mootness but due to the controlling statute.
Godfrey cannot escape the stringent restriction on second or
successive petitions under 28 U.S.C. § 2254 simply by
writing "28 U.S.C. § 2241" at the top of the
page. Federal courts' "authority to grant habeas
relief to state prisoners is limited by § 2254, which
specifies the conditions under which such relief may be
granted to 'a person in custody pursuant to the judgment
of a State court."' Felker v. Turpin, 518
U.S. 651, 662 (1996) (quoting 28 U.S.C. § 2254(a)). In
Felker, the United States Supreme Court determined
that § 2244(b)(1) and (2) does not unconstitutionally
suspend the writ of habeas corpus. See Id. at 664.
That being so, Godfrey can make no argument that he should be
permitted to proceed in this Court without satisfying the
preconditions of § 2244(b)(3). See, e.g., White v.
Lambert, 370 F.3d 1002, 1009-10 (9th Cir.
2010). Godfrey is in custody pursuant to the
judgment of a State court, but he failed to obtain
authorization from the Court of Appeals before filing his
successive habeas petition in this Court. His § 2241
petition must be dismissed for lack of jurisdiction. See
Burton v. Stewart, 549 U.S. 147, 149 (2007) (per
does not make a substantial showing that he was deprived of a
constitutional right. Even if he did, reasonable jurists
would find no basis to debate either the necessity of his
proceeding under § 2254 or the finding that his petition
is an unauthorized second or successive petition.
See 28 U.S.C. § 2253(c)(1)(A), (2);
Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012). A
certificate of appealability is not warranted.
IT IS ORDERED:
Godfrey's petition for a writ of habeas corpus under 28
U.S.C. § 2241 is RECHARACTERIZED as a petition under 28
U.S.C. § 2254 and DISMISSED for lack of jurisdiction as
an unauthorized second or successive application.
certificate of appealability is DENIED.
Clerk of Court shall enter by separate document a ...