United States District Court, D. Montana, Missoula Division
ORDER DISMISSING PETITION
Kathleen L. DeSoto United States Magistrate Judge
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
Motion to Appoint Counsel
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.
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.
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.)
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,
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); Thunder v. Young et al,
CV-15-4120-LLP, Pet. (filed July 7, 2015); Thunder v.
Weber, CV-18-4054-LLP, Pet. (filed May 15,
2018). 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.
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)).
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
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 ...