United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Timothy J. Cavan, United States Magistrate Judge
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.)
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.
28 U.S.C. § 2254 Petition
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.
Procedural History/Spotted Elk's Claims
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.
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.
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)).
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).
Elk asks this Court to hold an evidentiary hearing and order
his resentencing based upon the purported errors.
Id. at 7, ¶ 18.
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
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.