United States District Court, D. Montana, Missoula Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Jeremiah C. Lynch United States Magistrate Judge.
Kale Bagnell, a state prisoner proceeding pro se, filed this
action under 28 U.S.C. § 2254 on July 3,
2018. Bagnell challenges a conviction for Felony
Stalking handed down in Montana's Twentieth Judicial
District, Lake County, in Cause No. DC-13-80. (Doc. 1 at
alleges: (1) his guilty plea was involuntary, (doc. 1 at 4);
(2) counsel provided ineffective assistance, id. at
5; (3) his right to due process was violated by the
purportedly illegal sentence the district court imposed,
id. at 7; and, (4) the insufficient service of the
amended temporary order of protection, and the felony charge
that ensued from a purported violation of the amended order,
violated his constitutional rights, id. at 9.
October 31, 2014, following a guilty plea to Stalking, the
Lake County District Court committed Bagnell to the
Department of Corrections for five-years. Id. at 3;
see also, Tr. of Sent. Hrg. (Doc. 1-1 at 22-25.) The court
credited Bagnell with 602 days of credit for time served.
(Doc. 11-1 at 5.) Accordingly, Bagnell discharged his
sentence in DC-13-80 on March 7, 2018. Id. On
January 31, 2018, the Lake County District Court sentenced
Bagnell on a separate matter, Cause No. DC-15-355, to 240
months at the Montana State Prison for Stalking as a
Persistent Felony Offender. Bagnell is currently incarcerated
on the sentence handed down in DC-15-355. It also appears
that once the sentence in DC-15-355 expires, Bagnell will
begin serving two Yellowstone County sentences. Id.
Court may entertain a petition for a writ of habeas corpus
“in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. §2254(a).
Court's habeas jurisdiction requires that a petitioner be
in custody under the conviction or sentence under attack at
the time his federal petition is filed. Maleng v.
Cook, 490 U.S. 488, 490-91 (1989) (per curiam). As set
forth above, Bagnell discharged his DC-13-80 sentence on
March 7, 2018, but he did not file his petition challenging
that conviction in this Court until July 3, 2018, nearly four
months after the sentence expired. Thus, he was not “in
custody” under the conviction or sentence under attack
at the time of his federal filing.
extent that Bagnell attempts to challenge the 2014 conviction
in DC-13-80 because it may have been used to enhance the Lake
County sentence handed down in 2018, his argument fails. The
fact the earlier sentence may have been used to enhance the
latter, does not mean that Bagnell was “in
custody” pursuant to the 2014 conviction. See,
Lawckawanna Cty. Dist. Attorney v. Coss, 532 U.S.
394, 401 (2001) (“[R]espondent was not ‘in
custody' on his 1958 conviction merely because that
[prior] conviction had been used to enhance a subsequent
sentence.”); Maleng, 490 U.S. at 492-93
(explaining that when a prior conviction is used to enhance
the sentence for a subsequent conviction, “it is
pursuant to the second conviction that the petitioner is
incarcerated and is therefore ‘in custody'”).
In regard to state convictions, the Court has stated:
[O]nce a state conviction is not longer open to direct or
collateral attack in its own right because the defendant
failed to pursue those remedies while they were available (or
because the defendant did so unsuccessfully), the conviction
may be regarded as conclusively valid. If that conviction is
later used to enhance a criminal sentence, the defendant
generally may not challenge the enhanced sentence through a
petition under §2254 on the ground that the prior
conviction was unconstitutionally obtained. Coss,
532 U.S. at 403-04. Accordingly, Mr. Bagnell's petition
should be dismissed for lack of jurisdiction.
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, 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, 132 S.Ct. 641,
648 (2012) (quoting Slack, 529 U.S. at 484).
petition should be dismissed because it cannot be said that
reasonable jurists would find a basis encourage further
proceedings or find this Court's determination that it
lacks jurisdiction to ...