United States District Court, D. Montana, Billings Division
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
P. WATTERS, UNITED STATES DISTRICT JUDGE
Abraham Spotted Elk, appearing pro se, seeks habeas corpus
relief under 28 U.S.C. § 2254. Spotted Elk challenges
his net sentence of a forty-year term of incarceration for
one count of assault on a peace officer and two counts of
criminal endangerment. Before the Court are the United States
Magistrate Judge's Findings and Recommendations. (Doc.
22.) The Magistrate recommended the Court dismiss Spotted
Elk's Amended Petition for Writ of Habeas Corpus (Doc. 3)
as procedurally defaulted without excuse and deny him a
certificate of appealability. (Doc. 22 at 11-12.)
Magistrate concluded Spotted Elk's constitutional claims
were procedurally defaulted because Spotted Elk failed to
present his constitutional claims to the Montana Supreme
Court. (Doc. 22 at 4.) Moreover, Spotted Elk failed to
demonstrate any exception that would allow the Court to hear
the merits of his claim regardless of his procedural
default-namely a showing of actual innocence or a showing of
adequate legal cause for his default and actual prejudice.
(Id.) Therefore, the Magistrate determined Spotted
Elk's claims were procedurally defaulted without excuse
and recommended that the Court dismiss his petition under 28
U.S.C. § 1915 because it plainly appeared from the
petition Spotted Elk was not entitled to relief.
(Id. (citing Rule 4 Governing § 2254 Cases)).
Elk filed timely objections to the Magistrate's Findings
and Recommendations. (Doc. 23.) However, instead of
addressing the Magistrate's findings of fact or legal
conclusions regarding his procedural default and lack of a
legal excuse, Spotted Elk restated the constitutional claims
he raised in his amended petition. (Docs. 3, 23.) He
reiterated arguments that he did not commit an assault on a
police officer, he was sentenced without notice of the
alleged denial of his signed plea agreement, and District
Court Judge Souza should have been recused because he was
allegedly involved in Spotted Elk's 1980 prosecution for
sexual assault. (Doc. 23 at 1-3.)
to 28 U.S.C. § 636(b)(1), parties are required to file
written objections within 14 days after the Magistrate files
Findings and Recommendations. When a party timely objects to
any portion of the Magistrate's Findings and
Recommendations, the Court must review those portions of the
Findings and Recommendations de novo. 28 U.S.C. §
636(b)(1); McDonnell Douglas Corp. v. Commodore Business
Machines, 656 F.2d 1309, 1313 (9th Cir. 1981). "A
judge of the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge. The judge may also receive further evidence
or recommit the matter to the magistrate judge with
instructions." 28 U.S.C. § 636(b)(1).
U.S.C. § 2254 bars federal courts from granting habeas
corpus relief if the applicant has not exhausted the remedies
available in state courts, unless the petitioner can
demonstrate actual innocence or cause and prejudice for the
default. See Gray v. Netherland, 518 U.S. 152, 162
(1996); Schlup v. Delo, 513 U.S. 298, 324 (1995). By
his own admission, Spotted Elk did not file a direct appeal
or seek any form of collateral review for his convictions,
including state habeas or postconviction relief. (Doc. 3 at
2-3.) The Magistrate correctly determined both that Spotted
Elk's arguments were procedurally defaulted and that
Spotted Elk failed to show actual innocence or cause and
prejudice for the default.
a petitioner may overcome the prohibition on reviewing
procedurally defaulted claims if the petitioner shows
"it is more likely than not that no reasonable juror
would have convicted him in the light of the new
evidence." Lee v. Lampert, 653 F.3d 929, 938
(9th Cir. 2011) (quoting Schlup, 513 U.S. at 327).
'"[A]ctual innocence' means factual innocence,
not mere legal insufficiency." Bousley v. United
States, 523 U.S. 614, 623 (1998). Spotted Elk contests
some of the evidence used in his conviction for assault on a
police officer, but he provides no new evidence of actual
innocence. It is not more likely than not (or likely at all)
that no reasonable juror would have convicted him in the
light of any purportedly new evidence.
a petitioner may overcome the prohibition on reviewing
procedurally defaulted claims if the petitioner demonstrates
"cause for the default and actual prejudice as a result
of the alleged violation of federal law.. .."
Coleman v. Thompson, 501 U.S. 722, 750 (1991). While
Spotted Elk argues he was never provided notice of the
alleged denial of his signed plea agreement, the alleged
denial never occurred. The plea agreement allowed the parties
to argue for whatever legal sentence they deemed appropriate.
(Doc. 14-2 at 3.) That Spotted Elk did not receive the term
of incarceration he argued for is immaterial. The District
Court did not deny Spotted Elk's plea agreement when it
sentenced him to 40 years in prison.
is also nothing in the record supporting Spotted Elk's
belief that Judge Souza gave undue weight to Spotted
Elk's 1980 sexual assault conviction. Rather, the record
reveals Judge Souza appropriately considered Spotted
Elk's 1980 sexual assault conviction in the overall
context of his criminal history.
to the extent either of these issues existed, Spotted Elk was
aware of them at the time of sentencing. He has given no
justifiable cause for his failure to raise them to the
Montana Supreme Court for consideration. Spotted Elk has
failed to show cause for his procedural default and actual
prejudice resulting from alleged violations of federal law.
For these reasons, the Court concurs with the
Magistrate's recommendation to dismiss the petition.
Spotted Elk has not made a "substantial showing of the
denial of a constitutional right." 28 U.S.C. §
2253(c)(2). Spotted Elk has not shown "jurists of reason
could disagree with the district court's resolution of
his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further." Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). Spotted Elk has not established an
adequate basis to excuse the procedural default of his
claims. There are no close questions and no basis to
encourage further proceedings, so the Court will not issue a
Certificate of Appealability under 28 U.S.C. §
2253(c)(2). Accordingly, IT IS HEARBY
Spotted Elk's Amended Petition for Writ of Habeas Corpus
(Doc. 3) is DISMISSED because the claims he
raises are procedurally defaulted without excuse.
Clerk of Court shall enter a ...