Lowry v. Captain Hildenstab

• Court: District Court, D. Montana
• Decided: January 7, 2022
• Docket: 6:21-cv-00089
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION BOBBY FRANCIS LOWRY, Cause No. CV 21-89-H-SEH Petitioner, ORDER VS. CAPTAIN HILDENSTAB; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

On October 29, 2021, state pro se petitioner Bobby Francis Lowry filed a Petition Under 28 U.S.C. § 225 for Writ of Habeas Corpus! and a Motion to Proceed in Forma Pauperis.” I, Motion to Proceed in Forma Pauperis Lowry has failed to provide an account statement with the Motion to Proceed in Forma Pauperis.? The motion will nevertheless be granted.’

' See Doc. 1 at 8. Under the “prison mailbox rule” a prisoner’s federal habeas petition is deemed filed “at the time [it is] delivered . . . to the prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 276 (1988). * Doc. 2 3 Doe. 2. The Court takes judicial notice that Lowry has been granted in forma pauperis status in other matters. See, e.g., Or., Lowry v. Salmonsen, No. CV-18-106-H-BMM-JTJ (D. Mont. Jan 16, 2019), Doc. 3; Or., Lowry v. Guyer, No. CV-19-40-H-BMM-JTJ (D. Mont. June 16, 2019), Doc. 3; and Or., Lowry v. Hildenstab, No. CV-21-76-H-SHE (D. Mont. Oct. 22, 2021), Doc. 4.

. Il. Petition 28 U.S.C. § 2254 for Writ of Habeas Corpus Lowry is currently serving a sentence for Promotion of Prostitution, Theft, and Partner Family Member Assault.’ He was previously released on parole, but is

now detained for violation of parole.® He now asserts his current incarceration violates his right to presumption of innocence and his right to due process.’ Similar claims were unsuccessfully litigated before the Montana Supreme Court.® This Court does not serve as an appellate tribunal to review errors allegedly committed by a state court.? Lowry’s request to review a Montana Supreme Court disposition on state law issues is improper.'® The claims asserted are legally frivolous, fail to state a basis upon which relief may be granted, and must be dismissed."!

1 at 2-3. ® Doc. 1 at 4. 7 Doc. 1 at 4-5. ® See Lowry v. Dutton, OP 21-0211, 2021 WL 2105488 (Mont. May 25, 2021). ? MacKay v. Pfeil, 827 F. 2d 540, 543 (9th Cir. 1987); see also Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 296 (1970) (“lower federal courts possess no power whatever to sit in direct review of state court decisions”). 10 See Bradshaw v. Richey, 546 U.D. 74, 76 (2005) (A state court’s interpretation of state law is binding on a federal habeas court); Hendricks v. Zenon, 993 F. 2d 664, 674 (9th Cir. 1993) (claim exclusively concerned with state law not cognizable in federal habeas); Mendez v. Small, 298 F. 3d 1154, 1158 (9th Cir. 2002) (“[a] state court has the last word on interpretation of state law”) (citations omitted); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”); Bonin v. Calderon, 59 F. 3d 815, 841 (9th Cir. 1995) (violation of a “state law right does not warrant habeas corpus relief”); Lewis v. Jeffers, 497 U.S. 764, 765 (1990) (‘federal habeas corpus relief does not lie for errors of state law”). U.S.C. § 1915A(b)(1), (2). . -2-

Ill. Certificate of Appealability Lowry has made no substantial showing of the denial of a constitutional right.'* Issues have not been presented that are adequate to warrant encouragement to proceed further. No certificate of appealability will be authorized.

ORDERED: 1. Lowry’s Motion to Proceed in Forma Pauperis!? is GRANTED. The Clerk of Court is directed to waive payment of the filing fee. | 2. Lowry’s Petition" is DISMISSED with prejudice. 3. The Clerk of Court is directed to enter, by separate document, a judgment in favor of Respondents and against Petitioner. 4. Acertificate of appealability is DENIED. DATED this thay of January, 2022.

United States District Judge

12 28 U.S.C. § 2253(c)(2). '3 Doc, 2. 4 Doc. 1. -3-