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Gray v. Guyer

United States District Court, D. Montana, Billings Division

July 17, 2019

TRAVIS LORREN GRAY, Petitioner,
v.
LYNN GUYER; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE

         On May 28, 2019, Petitioner Travis Lorren Gray, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] (Doc. 1 at 8.) Gray is a state prisoner proceeding pro se.

         In the instant petition, Gray challenges a sentencing condition requiring him to comply with polygraph testing, a condition which apparently is commonly imposed by the State of Montana upon Sexual Offenders. See, Id. at 5, ¶13(B). Gray believes the condition to be illegal and violative of his Fifth Amendment rights. He asks this Court to strike the condition from his sentence. Id. at 7, ¶16. As set forth below, however, the petition should be dismissed because this Court lacks jurisdiction to hear Gray's successive petition.

         I. Motion to Proceed in Forma Pauperis

         Gray has moved this Court to proceed in forma pauperis. See, (Doc. 2.) After reviewing the motion and supporting account statement, it appears Gray has sufficiently shown he cannot afford to pay all costs that may be associated with this action. Gray's motion to proceed in forma pauperis will be granted.

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

         Following a 2015 guilty plea to the offense of Sexual Intercourse without Consent in Montana's Fourteenth Judicial District, Musselshell County, Gray was sentenced to the Montana Department of Corrections for 15-years, with 10 of those years suspended. See, (Doc. 1 at 2-3.) Gray did not file a direct appeal, did not apply for sentence review, and did not file a petition for postconviction relief. Id. at 3-4. But Gray has filed various petitions for writs of habeas corpus in the Montana Supreme Court. Id. at 4, ¶12.[2] None of Gray's state habeas petitions raised the same claim Gray now presents to this Court.

         Gray did file a prior habeas petition with this Court challenging sentencing conditions which prevent him from accessing the internet/social media. Gray claimed the prohibition infringed upon his First Amendment right of freedom of expression and upon his Fourteenth Amendment right to due process. This Court determined, under the applicable standard of review of 28 U.S.C. §2254(d), that the decision of the Montana Supreme Court denying Gray's claim must be afforded deference. Accordingly, Gray's federal petition was denied. See, Gray v. Salmonsen, CV-18-32-BLG-SPW, Or. at 2 (D. Mont. March 26, 2019).

         i. Analysis

         As a preliminary matter, the claim Gray now attempts to raise before this Court is unexhausted; he has never presented this precise claim to the Montana Supreme Court. See, (fn. 2.) Because Gray has not yet exhausted available state court remedies, this Court cannot review the claim. See, Rose v. Lundy, 455 U.S. 509 (1982). But even if the claim were properly exhausted, this Court lacks jurisdiction.

         In his prior habeas petition, Gray challenged conditions of his 2015 sentence. Because he has already filed a federal habeas petition challenging his conviction and the corresponding conditions, this Court may not review Gray's present petition unless and until he 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, Gray 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. § 2244(b)(3)(A).

         Until Gray 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 ...


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