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Elk v. McTighe

United States District Court, D. Montana, Billings Division

October 1, 2019

ABRAHAM SPOTTED ELK, Petitioner,
v.
WARDEN MCTIGHE, STATE OF MONTANA, Respondents.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Timothy J. Cavan, United States Magistrate Judge

         State pro se Petitioner Abraham Spotted Elk filed this action under 28 U.S.C. § 2254. (Doc. 1.) Pursuant to this Court's directive, Spotted Elk filed an Amended Petition. (Doc. 3.)

         Following review of his Amended Petition, it appeared Spotted Elk's claims were unexhausted and procedurally defaulted; he was ordered to show cause as to why his petition should not be dismissed. (Doc. 19.) Spotted Elk timely responded to this Court's order and also provided a Supplement to his response, accompanied by exhibits. (Docs. 20, 21, and 21-1.) For the reasons discussed herein, Spotted Elk's petition should be dismissed as procedurally defaulted without excuse.

         I. 28 U.S.C. § 2254 Petition

         The Court is required to screen all actions brought by prisoners who seek relief. 28 U.S.C. § 1915(a). The Court must dismiss a habeas petition or portion thereof if the prisoner raises claims that are legally frivolous or fails to state a basis upon which relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). This means the Court must dismiss a habeas petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief[.]" Rule 4 Governing Section 2254 Cases. As explained below, because Spotted Elk's claims are procedurally defaulted, the petition should be dismissed.

         A. Procedural History/Spotted Elk's Claims

         On August 2, 2016, Spotted Elk entered a no contest plea to Assault on a Peace Officer and entered guilty pleas to two counts of Criminal Endangerment. (Doc. 14-5 at 1.) The Plea Agreement specifically provided that the State would not withdraw its Persistent Felony Offender designation, and that the parties were free to argue for any legal sentence during the sentencing hearing. (Doc. 14-2 at 1, 3.) Spotted Elk also acknowledged his understanding, as a matter of law, that he would not be entitled to withdraw his no contest and/or guilty pleas. Id. at 3.

         On November 9, 2016, the district court sentenced Spotted Elk to the Montana State Prison for thirty (30) years for both the Assault on a Peace Officer and one count of Criminal Endangerment, with the sentences to run concurrently. On the remaining Criminal Endangerment count, Spotted Elk was sentenced to ten (10) years at the Montana State Prison, which was ordered to run consecutively to the thirty (30) year sentence. (Doc. 14-5 at 2); see also, (Doc. 1 at 3, f 4.) Thus, Spotted Elk received a net sentence of forty (40) years.

         By his own admission, Spotted Elk did not file a direct appeal or seek any form of collateral review, including via state habeas or postconviction relief. (Doc. 3 at 2, ¶ 8; 3, ¶¶ 11 & 14.) Spotted Elk did file for review of his sentence with the Montana Sentence Review Division. Id. at 3, ¶ 13. Spotted Elk's sentence was affirmed. Id. at 3, ¶ 13; 5, ¶ 15(B)(5). Spotted Elk was "under the impression that after sentence review [his] only other option was federal habeas corpus" relief. (Doc. 3 at 4, ¶ 15(A)(5)).

         In his Amended Petition, Spotted Elk claims: (1) no serious bodily injury was inflicted that would support a conviction for Assault on a Peace Officer (id. at 3, ¶ 15(A)); (2) collusion existed by virtue of District Court Judge Souza, who sentenced Spotted Elk in 2016, also purportedly being involved Spotted Elk's 1980 prosecution for sexual assault (id. at 4, |f 15(B)); and, (3) Spotted Elk was sentenced without notice of denial of the signed plea agreement. Id. at 5, ¶ 15(C).

         Spotted Elk asks this Court to hold an evidentiary hearing and order his resentencing based upon the purported errors. Id. at 7, ¶ 18.

         B. Analysis

         Before a state prisoner may present a claim to a federal court, he must first exhaust his available state remedies. 28 U.S.C. § 2254(b)(1)(A); Baldwin v. Reese, 541 U.S. 27, 29 (2004). To do so, the petitioner must invoke one complete round of the state's established appellate review process, fairly presenting all constitutional claims to the state courts so that they have a full and fair opportunity to correct alleged constitutional errors at each level of appellate review. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion requirement prevents the federal court from "upset[ting] a state court conviction" without first allowing the state courts an "opportunity to.. .correct a constitutional violation." Rose v. Lundy, 455 U.S. 509, 518 (1982).

         When a habeas petitioner has not fairly presented a constitutional claim to the highest state court, and it is clear that the state court would now refuse to consider it because of the state's procedural rules, the claim is said to be procedurally defaulted. Gray v. Netherlands 518 U.S. 152, 161-62 (1996). But even if a petitioner's claim is procedurally defaulted, a federal district court may still hear the merits of the claim if the petitioner meets one of two exceptions: (1) a showing of actual innocence, which means that a miscarriage of justice will occur if the constitutional claim is not heard in federal court, Schlup v. Delo, 513 U.S. 298, 329 (1995); or (2) a showing of adequate legal cause for the default and prejudice arising from the default, Murray v. Carrier, 477 U.S. 478, 488 (1986). Spotted Elk appears to argue he can establish both cause and prejudice to excuse the default, and his actual innocence. The Court will examine each in turn.

         i. Cause ...


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