United States District Court, D. Montana, Missoula Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE
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.
The Court presumes Mr. Weik seeks relief pursuant 28 U.S.C.
Motion to Proceed In Forma Pauperis
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
U.S.C. § 2254 Petition
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.
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
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.
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).
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
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,
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
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 ...