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Weik v. McDermott

United States District Court, D. Montana, Missoula Division

April 30, 2019

DAVID LYNN WEIK, Petitioner,
v.
TJ. MCDERMOTT, MISSOULA COUNTY SHERIFF Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED

          JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE

         On April 24, 2019, Petitioner David Lynn Weik, a state prisoner proceeding pro se, filed a hand-written "Emergency Petition for Writ of Habeas Corpus." (Doc. I.)[1] The Court presumes Mr. Weik seeks relief pursuant 28 U.S.C. § 2254.

         I. Motion to Proceed In Forma Pauperis

         Although Weik has not paid the $5.00 filing fee or submitted a motion to proceed in forma pauperis, he did send a letter to the Court inquiring about the filing fee and advised he is indigent. (Doc. 1-1.) Because there is no reason to delay this matter, the Court will construe Weik's letter as a motion to proceed in forma pauperis. The motion will be granted.

         II. 28 U.S.C. § 2254 Petition

         According to Weik, he was arrested on February 1, 2019, for an alleged probation violation filed in Montana's Fourth Judicial District, Missoula County. (Doc. 1 at 2.) Weik is being held on a $50, 000 bond, which he asserts is excessive. Id. at 4. Weik believes there was no probable cause for his arrest and that there is no legal justification for his continued detention because he did not violate the terms of his probation. Id. at 1-2; 4.

         On March 20, 2019, Weik was transported to the state district court for a revocation hearing. Prior to the hearing Weik had never met with his court-appointed counsel. Id. at 2. Weik states his attorney, despite Weik's requests, refuses to file a motion for his release. Appointed counsel has been generally non-responsive to Weik and has still not consulted with him regarding the petition. Id. at 3. Weik filed a complaint with the Office of the Public Defender (OPD) requesting outside counsel be appointed. Id. at 2-3. The OPD has been slow to process Weik's complaint; it is unclear whether or not he will receive new counsel. Additionally, Weik claims his probation officer is vengeful and has violated his right to due process. Id. at 4. Weik states the allegations contained in the petition to revoke filed against him are "materially misleading, false and deceptive." Id. at 4-5. It does not appear that Weik's revocation hearing has occurred.

         Weik asks the Court to issue a writ directing the Missoula County Sheriff to bring him before this Court and direct the Respondent to show cause as to why he should not be discharged from the purportedly illegal confinement and restraint. Id. at 5.

         i. Analysis

         As a preliminary matter, Weik is advised that federal district courts, as courts of original jurisdiction, do not serve as appellate tribunals to review errors allegedly committed by state courts. MacKay v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987); see also Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 296 (1970)("lower federal courts possess no power whatever to sit in direct review of state court decisions"). It would be entirely inappropriate at this juncture for the Court to intervene in the ongoing state criminal proceedings. Moreover, under the Younger Abstention Doctrine, this Court may not intervene in petitioner's pending state criminal case. See, Younger v. Harris, 401 U.S. 37(1971).

         But Weik's petition should be dismissed because any claim he seeks to advance relative to his current custody has not yet been exhausted in the state court system. Dismissal should be without prejudice.

         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. Netherland, 518 U.S. 152, 162-63 (1996) (discussing Picard v. Connor, 404 U.S. 270 (1971) and Anderson v. Heirless, 459 U.S. 4 (1982)). A petitioner must meet all three prongs of the test in one proceeding.

         Weik's state criminal proceedings are ongoing at the district court level. Additionally, it does not appear that Weik has attempted to seek habeas relief and/or any other extraordinary relief from the Montana Supreme Court. A review of the Montana Supreme ...


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