United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Johnston, United States Magistrate Judge.
26, 2019, Petitioner Jimmy Lee Medina filed a petition
seeking a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Medina is a state prisoner proceeding pro
challenges 2018 judgments handed down in Montana's Fourth
Judicial District Court, Missoula County, and Montana's
Sixth Judicial District, Park County. (Doc. 1 at 2,
¶¶ 1-2.) Following guilty pleas, Medina was
convicted of Burglary and Criminal Possession of Dangerous
Drugs. Id. at 3, ¶¶ 3-5.
alleges his Fourteenth Amendment right to Due Process was
violated when he was denied witnesses and documentary
evidence during a prison disciplinary hearing, which resulted
in his loss of release on parole. Id. at 4,
¶13(A). Medina claims he is now parole eligible, but
remains incarcerated due to abuses committed by prison
authorities during his disciplinary hearings. Id.
asks this Court to order an injunction and restore 471 days
of clear conduct. He also requests an order for his immediate
release from Montana State Prison to parole status.
Id. at 7, ¶16. Medina notes that he has filed a
companion action under 42 U.S.C. §1983. Id. at
Motion to Proceed in Forma Pauperis
seeks leave of the Court to proceed in forma pauperis. (Doc.
2.) After reviewing the motion and supporting account
statement, it appears Medina 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
reasons discussed below, Medina's petition should be
dismissed because the claims he advances relative to his
current custody have not yet been exhausted. 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 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. Netherlands 518
U.S. 152, 162-63 (1996) (discussing Picard v.
Connor, 404 U.S. 270 (1971), and Anderson v.
Harless, 459 U.S. 4 (1982)). A petitioner must meet all
three prongs of the test in one proceeding.
own filings make it clear that he has not presented his
claims to the state courts in a petition for postconviction
relief, (Doc. 1 at 4, ¶10), or in a petition for writ of
habeas corpus. Id. at ¶12; see also,
¶13(A)(ii)-(v). Accordingly, there are still remedies
available to Medina under state law, including collateral and
extraordinary review; Medina has not exhausted his state
remedies. 28 U.S.C. §2254(c). Because Medina has not yet
exhausted his available state court remedies, this Court
cannot review the claim. See, Rose v. Lundy, 455
U.S. 509 (1982). Dismissal is without prejudice and Medina
may return to this Court if and when he fully exhausts the
claims relative to his current custody.
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)). Where a claim is
dismissed on procedural grounds, the court must also decide
whether "jurists of reason would find it ...