Opinion
CV-20-61-H-SEH
08-12-2020
CASEY LEE TURK, Petitioner, v. BROADWATER COUNTY JAIL, MONTANA STATE PRISON Respondents.
ORDER
This case is before the Court on a state pro se petition filed by Casey Lee Turk. Habeas corpus relief under 28 U.S.C. § 2241 is sought. The petition is denied.
See Doc. 1.
I. Turk's Federal Habeas Petition
Turk asserts he is being held in the Broadwater County Jail on a no bond probation/parole warrant issued by the Montana Probation and Parole Office in Butte. He claims he was not served with a copy of the purported violations within 72-hours, that he was not provided a hearing within five days, and that the Montana state "incentives and interventions grid" was not applied in his case. Release is sought. In the alternative, Turk requests the state be required to utilize the "incentives and interventions grid" in his case and provide a hearing during which Turk is allowed to speak and advocate on his own behalf.
See Id. at 1.
See Id. at 2, 6.
See Id. at 7.
Id.
Turk's filing declares he is in custody as a result of a warrant for a purported probation/parole violation issued by the Montana Department of Corrections. His current supervision and custody stem from an underlying state court judgment of conviction. Turk cannot proceed under 28 U.S.C. § 2241.
Turk has recent convictions out of Broadwater, Lewis and Clark, and Powell counties. See https://app.mt.gov/conweb/Offender/2136950 (accessed August 4, 2020).
See White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc); see also Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004).
28 U.S.C. § 2254 provides the sole remedy for any challenge to detention for one in custody by reason of a state court judgment. Turk's petition does not identify a cognizable federal claim. Relief under 28 U.S.C. § 2254 has not been shown. An amended petition under § 2254 at this juncture would be futile.
See White, 370 F.3d at 1009-10.
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas corpus relief does not lie for errors of state law).
Moreover, a federal court may not grant a writ of habeas corpus brought by an individual in custody on a state court judgment unless "the applicant has exhausted the remedies available in the courts of the State."
"The exhaustion-of-state-remedies doctrine, now codified at 28 U.S.C. §§ 2254(b) and (c), reflects a policy of federal-state comity, an accommodation of our federal system designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights."The requirement of exhaustion of state remedies under 28 U.S.C. §§ 2254(b) and (c) has not been satisfied. In addition, Turk has not pursued state court remedies that may be available and that must be exhausted before seeking review in this Court. Dismissal is without prejudice.
Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks and citation omitted).
See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008).
See generally, Montana Supreme Court Docket: https://appecm.mt.gov/PerceptiveJUDDocket/ (accessed August 4, 2020); See also O'Sullivan, 526 U.S. at 845; Rose v. Lundy, 455 U.S. 509 (1982).
II. Certificate of Appealability
Turk has not made "a substantial showing of the denial of a constitutional right." His petition presents no issues that are "debatable among jurists of reason" or "adequate to deserve encouragement to proceed further." A certificate of appealability is denied.
Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000); see also Dixon v. Ryan 932 F.3d 789, 808 (9th Cir. 2019).
ORDERED:
1. Turk's Petition is DISMISSED without prejudice.
Doc. 1. --------
2. The Clerk of Court should be directed to enter judgment of dismissal.
3. A certificate of appealability is DENIED.
DATED this 12th day of August, 2020.
/s/_________
Sam E. Haddon
United States District Court Judge