United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE
Timothy J. Cavan United States Magistrate Judge.
case comes before the Court on Petitioner Bishop's
application for writ of habeas corpus. Bishop is proceeding
pro se and is currently detained at the Yellowstone County
currently faces charges in state court. He contends he is
being held in violation of the Interstate Agreement on
Detainers (“IAD”). He claims the State should
have brought him to trial within 120 days. As he has now been
held for significantly longer than that, he seeks dismissal
of the State's charges and a return to federal custody.
In the alternative, he asks the Court to consider whether his
Sixth Amendment right to a speedy trial has been violated.
Bishop also alleges his former counsel was ineffective in
failing to press these issues to a successful conclusion.
See Pet. Addendum (Doc. 1-1) at 1, 4-6.
Exhaustion of State Remedies
18, 2019, the Court ordered Bishop to show cause why his
federal petition should not be dismissed for failure to
exhaust state remedies. He filed a response (Doc. 8) on July
25, 2019, along with a motion to appoint counsel (Docs. 9,
10) and a motion to stay proceedings in the state criminal
case (Docs. 11, 12). He also adds an allegation that the
State must comply with the federal Speedy Trial Act, 18
U.S.C. § 3161 et seq., because he is a federal
inmate. See Resp. to Order (Doc. 8) at 1.
Bishop faces charges in state court but is not subject to a
state judgment, his petition falls under 28 U.S.C. §
2241 rather than § 2254. See, e.g., McNeely
v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003);
White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.
2004), overruled on other grounds by Hayward v.
Marshall, 603 F.3d 546, 554 (9th Cir. 2010) (en banc).
With respect to exhaustion of state judicial remedies,
however, §§ 2254 and 2241 impose identical
requirements on petitioners. See Dominguez v.
Kernan, 906 F.3d 1127, 1135 n.9 (9th Cir. 2018) (citing
Laing v. Ashcroft, 370 F.3d 994, 997-98 (9th Cir.
exhaustion requirement is a “simple and clear
instruction to potential litigants: before you bring any
claims to federal court, be sure that you first have taken
each one to state court.” Rose v. Lundy, 455
U.S. 509, 520 (1982). The requirement exists because State
courts are co-equal adjudicators, with the federal courts, of
federal constitutional issues and other “laws . . . of
the United States.” 28 U.S.C. § 2241(c)(3). For
that reason, state courts are entitled to have the first
opportunity to consider a state prisoner's claim he is in
custody in violation of federal law.
properly exhaust a claim, a petitioner must (1) use the
judicial remedies the State makes available, see,
e.g., Castille v. Peoples, 489 U.S. 346, 351
(1989), including established procedures for appellate
review, see 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.
Netherland, 518 U.S. 152, 162-63 (1996).
problem here is the first requirement. The State of Montana
provides a remedy Bishop may use to challenge his pretrial
detention by the state court, including his claim of
violation of the Interstate Agreement on Detainers. He may
file a petition for writ of habeas corpus. See Mont.
Code Ann. § 46-22-101; State v.
R.S.A., 2015 MT 202 ¶¶ 22-23. His federal
habeas petition states that he has not done so, see
Pet. (Doc. 1) at 4 ¶ 12, and the records of the Montana
Supreme Court do not show any action in his name.
was ordered to show cause why his petition should not be
dismissed for failure to exhaust state judicial remedies.
See Order to Show Cause (Doc. 7) at 4. In response,
he repeats the arguments of his petition, including but not
limited to why he believes the Interstate Agreement on
Detainers applies to his case and why he believes his
constitutional right to a speedy trial and other mandates
have been violated. See Resp. to Order (Doc. 8) at
1-4. A document he attached to his response points out that
he is not permitted to file motions in his state criminal
case because he is represented by counsel. See Resp.
Ex. (Doc. 8-1 at 7). But, as he was advised, the state remedy
currently available to him in state court is a petition for
writ of habeas corpus, see Order to Show Cause (Doc.
7) at 3-4; R.S.A., 2015 MT 202 ¶¶ 22-23,
not a motion in his criminal case.
also moves for a stay, not of his federal habeas
petition but of the state criminal case, until his
allegations of constitutional violations “are ruled on
in either federal court or Montana Supreme Court.”
See Mot. to Stay (Doc. 11) at 1; Br. for Stay (Doc.
12) at 1. All the facts he has alleged do not amount to
special circumstances distinguishing his case from any other
in which a person facing state charges believes his federal
constitutional rights have been violated. In particular, the
fact that Bishop has been sentenced in federal court does not
prioritize his opportunity to obtain federal rehabilitative
services over the State of Montana's interest in
enforcing its criminal laws. A stay is not available. See
Brown v. Ahearn, 676 F.3d 899, 903 (9th Cir. 2012).
does not show cause why his petition should not be dismissed
for failure to exhaust state remedies. The petition should be
dismissed without prejudice. Bishop's motion for counsel
(Docs. 9, 10) is moot because he cannot proceed in this Court
at this time.
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); Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Where a claim is dismissed on procedural grounds, the
court must also decide whether “jurists of reason ...