United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF
Johnston United States Magistrate Judge
10, 2019, Petitioner Bobby Francis Lowry, filed a petition
seeking a writ of habeas corpus pursuant to 28 U.S.C. §
2254(Doc. 1 at 4.) Lowry is a state prisoner
proceeding pro se.
Motion to Proceed In Forma Pauperis
has moved this Court to proceed in forma pauperis.
See, (Doc. 2) After reviewing the motion and
supporting account statement, it appears Lowry has
sufficiently shown he cannot afford to pay all costs that may
be associated with this action. Lowry's motion to proceed
in forma pauperis will be GRANTED.
U.S.C. § 2254 Petition
the entry of Afford pleas to the offenses of Promotion of
Prostitution and Parmer or Family Member Assault in
Montana's Eighth Judicial District, Gallatin County,
Lowry was sentenced to the Montana State Prison for five
years. On September 28, 2018, Lowry applied for a
transfer to New Mexico under the Interstate Corrections
Compact. (Doc. 1 at 1.) New Mexico rejected Lowry's
application. Although under Montana law Lowry is not
considered a registered sexual offender, Lowry's proposed
residence was in close proximity to a bus stop and park and
thus not acceptable under the New Mexico Department of
Corrections (DOC) supervision contract. Id. at 2;
see also, (Doc. 1-1 at 5-6.) Lowry sought
clarification from the trial court that his underlying
conviction did not require registry as a sex offender. Lowry
resubmitted his application to New Mexico; the application
was denied a second time. Id.
alleges the New Mexico DOC violated the Privilege and
Immunities Clause of the United States Constitution by
denying him an interstate compact without providing the same
due process and corresponding administrative hearing that is
afforded to "in-state" offenders. Id. at
2-3. Lowry asks this Court to order the New Mexico DOC to
provide him with the same privileges granted to New Mexico
offenders. Id. at 3.
prior habeas petition, Lowry challenged New Mexico's
denial of his interstate compact application. See, Lowry
v. Salmonsen, CV-18-106-H, Pet. (filed Dec. 3, 2018).
There, Lowry claimed the imposition of sentencing/supervision
conditions to be imposed upon him pursuant to the potential
interstate compact transfer violated his right to due process
and to be free from ex post fact. Id. at 3-4. This
Court considered Lowry's petition and ultimately denied
the petition for lack of merit. Lowry v. Salmonsen,
CV-18-106-H, Or. (D. Mont. March 6, 2019).
he has already filed a federal habeas petition challenging
his convictions and the corresponding denial of the
interstate transfer, this Court may not review Lowry's
present petition unless and until Lowry obtains leave from
the Ninth Circuit Court of Appeals to file a second or
successive petition. This Court must dismiss any claim which
was presented in a prior habeas petition. 28 U.S.C. §
2244(b)(1). A new claim in a second or successive petition
must be dismissed even if not presented in a prior habeas
petition, unless the claim rests on new law, new evidence, or
Petitioner's actual innocence. 28 U.S.C. §
2244(b)(2). Even in the latter circumstance, leave of the
Court of Appeals is required to maintain the successive
petition. 28 U.S.C. § 2244(b)(3). Thus, Lowry is
required to raise his grounds for making a second or
successive petition before the Ninth Circuit, in a motion for
leave to file a second or successive petition. "Before a
second or successive application permitted by this section is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application." 28 U.S.C.
Lowry obtains leave from the Ninth Circuit Court of Appeals
to file a successive habeas petition, this Court lacks
jurisdiction to hear his claims. Burton v. Stewart,
549 U.S. 147, 149 (2007) (per curiam). The petition should be
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
the 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)).
certificate of appealability should be denied because there
is no doubt this Court lacks jurisdiction and there is no