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Kirn v. Bodine

United States District Court, D. Montana, Billings Division

May 15, 2019

CLAYTON DOUGLAS KIRN, Petitioner,
v.
COMMANDER BODINE; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          ORDER AND FINDINGS and RECOMMENDATIONS OF UNITED

          TIMOTHY . CAVAN, UNITED STATES MAGISTRATE JUDGE.

         On 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 8.)[1]

         I. Motion to Proceed In Forma Pauperis

         Mr. 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 granted.

         II. 28 U.S.C. § 2254

         Petition As explained more fully below, because Kirn's current claims are unexhausted, his petition should be dismissed without prejudice.

         i. Kirn's Claims

         According 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.)

         Kirn 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).[2] 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.

         Kirn 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.)

         ii. Analysis

         As a 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).

         In 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.

         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 ...


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