United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS and RECOMMENDATIONS OF
TIMOTHY . CAVAN, UNITED STATES MAGISTRATE JUDGE.
April 20, 2019, Petitioner Clayton Douglas Kirn, a state
prisoner proceeding pro se, filed a petition for habeas
corpus relief pursuant to 28 U.S.C. § 2254. (Doc. 1 at
Motion to Proceed In Forma Pauperis
Kirn seeks leave of the Court to proceed in forma pauperis.
See, (Doc. 2.) After reviewing the motion and supporting
account statement, Kirn has sufficiently shown he cannot
afford to pay all costs that may be associated with this
action. The motion to proceed in forma pauperis will be
U.S.C. § 2254
As explained more fully below, because Kirn's current
claims are unexhausted, his petition should be dismissed
to Kirn, he was arrested on April 18, 2018, and charged in
Montana's Thirteenth Judicial District, Yellowstone
County; Kirn has been detained at the Yellowstone County
Detention Facility since his arrest. (Doc. 1-1 at 1.) Kirn
asserts his right to speedy trial under state law has been
violated. Id. at 1-3. Kirn states he has been
provided ineffective counsel, and that any delay that has
occurred is not attributable to him, but rather to defense
counsel or is delay that is institutional in nature.
Id. at 2-4. Kirn has apparently attempted to file
motions to dismiss based upon the purported speedy trial
violation, but his pro se filings have been rejected.
Id. at 2, 8. Following a hearing on February 26,
2019, the district court ordered that Kirn would be appointed
new counsel and that a new trial date would be set.
Id. at 7. As far as the Court is able to discern,
Kirn's underlying criminal case remains pending in
Yellowstone County. See, Yellowstone County Docket for Cause
No. DC-18-546 (Doc. 1-1 at 5-6.)
filed a petition for writ of habeas corpus with the Montana
Supreme Court. See, (Doc. 1 at 4, ¶12.) The Court held
Kirn failed to demonstrate his ongoing incarceration was
illegal, and that Kirn was not entitled to release on the
grounds stated in his petition. See, Kirn v. Bodine,
Or. at 1-2, OP 19-0106 (Mont. Feb. 26, 2019). Kirn was further
advised that because he was represented by counsel, his pro
se filings could be properly rejected by the Court.
Id. at 2.
asks this Court to dismiss all the criminal charges pending
against him with prejudice for violations of the four-part
test outlined by the Montana Supreme Court in State v.
Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815. (Doc.
1-1 at 1-3; 4.)
preliminary matter, Kirn 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 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).
addition, Kirn'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.
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 ...