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Thunder v. Weber

United States District Court, D. Montana, Missoula Division

September 5, 2019

BARRY GLENN THUNDER, Petitioner,
v.
DOUGLAS WEBER, DARIN YOUNG, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          ORDER DISMISSING PETITION

          Kathleen L. DeSoto United States Magistrate Judge

         Barry Glenn Thunder, a state prisoner proceeding pro se, filed a petition seeking a writ of habeas corpus under 28 U.S.C. §2254. The State responded to Thunder's petition. (Doc. 12.) On September 4, 2019, following the parties' consent, notice was given that the undersigned is to conduct all further proceedings in this matter. (Doc. 17.) For the reasons discussed herein, Thunder's petition will be dismissed.

         I. Motion to Appoint Counsel

         Thunder has filed a second motion for appointment of counsel. (Doc. 16.) Thunder's prior motion was denied and he was advised his case was not so complex that due process would be offended absent the presence of counsel and that an evidentiary hearing had not been ordered. See, (Doc. 9 at 1), citing, Bonin v. Vasquez, 999 F.2d 425, 428-29 (9th Cir. 1993), Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (per curiam)), and Rule 8(c), Rules Governing § 2254 Cases. Additionally, Thunder was advised that the interests of justice did not require appointment of counsel and that the Court was awaiting the Respondents' answer. Id. at 1-2, citing 18 U.S.C. § 3006A(a)(2)(B). The answer has now been filed. There is nothing in the interim that has materially altered the procedural posture of Thunder's case or this Court's prior analysis regarding the appointment of counsel. Accordingly, Thunder's motion will be denied.

         II. Procedural History

         Following a 2008 jury trial in Sioux Falls, Minnehaha County, South Dakota, Thunder was convicted of Rape and four counts of Possession of Child Pornography. See, (Doc. 2 at 3, ¶ 3.) In February of 2009, Thunder received a 60-year prison sentence. Id. at 3, ¶ 4.

         On direct appeal Thunder raised a Fourth Amendment challenge to the warrantless viewing of videos stored on a cell phone that he had possessed. The videos were subsequently introduced into evidence at trial. The Minnesota Circuit Court affirmed Thunder's conviction, finding the trial court properly denied his suppression motion. See, State v. Thunder, 2010 S.D. 3, 777 N.W.2d 373, (Doc. 12-1.)

         Pursuant to an Interstate Compact Agreement in 2009, Thunder was transferred to Montana State Prison (MSP). Thunder presently remains in custody at MSP serving his Minnesota state sentence. See, (Doc. 12-3); see also, (Doc. 12 at 3, ¶ 4.) Thunder has no Montana state convictions. (Doc. 12 at 4, ¶ 6.)

         During his incarceration at MSP, Thunder unsuccessfully sought federal habeas relief in the United States District Court of South Dakota on three separate occasions. See e.g., (Doc. 12-4), Thunder v. Weber, CV-14-4122-LLP, Pet. (filed Aug. 5, 2014);[1] Thunder v. Young et al, CV-15-4120-LLP, Pet. (filed July 7, 2015);[2] Thunder v. Weber, CV-18-4054-LLP, Pet. (filed May 15, 2018).[3] In each of the petitions, Thunder challenged the 2008 underlying judgment of conviction and the 60-year sentence he received. See, Pet. filed in Cause No. CV-14-4122 (Doc. 12-7); Pet. filed in Cause No. CV-15-4120 (Doc. 12-8); and, Pet. filed in Cause No. CV-18-4054 (Doc. 12-9.)

         In the instant petition, Thunder again attempts to challenge the Minnesota judgment of conviction and sentence. He asserts: (1) the sentence he received violates the Eighth Amendment because it is grossly disproportionate to the crimes committed, and (2) the evidence presented at trial was insufficient to support the jury's verdict. See, (Doc. 2 at 4, ¶13(A); 5 at ¶13(B)).

         III. Analysis

         Respondents assert this Court should dismiss Thunder's petition because he has filed in the improper venue and, alternatively, because he has filed an unauthorized second or successive petition. (Doc. 12 at 9-11.) The Respondents' position is well-taken; Thunder's petition will be dismissed.

          i. Venue

         The appropriate venue for a habeas corpus petition challenging a conviction or sentence is the district court for the district where the judgment was entered, given the accessibility of evidence, records, and witnesses. See, Hernandez v. Campbell,204 F.3d 861, 864 (9th Cir. 2000)(citing Brown v. United States,610 F.2d 672, 677 (9th Cir. 1980)). When the petition challenges the manner in which a sentence is being executed, the district of confinement is the preferable ...


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