LongJaw v. Bullock
Filing
6
ORDER DISMISSING CASE. Longjaw's motion to proceed in forma pauperis 1 is GRANTED. The Clerk of Court shall waive payment of the filing fee. A certificate of appealability is DENIED. Motions for reconsideration, relief from the judgment, or of any other kind will not be entertained will be stricken if filed. Signed by Judge Richard F. Cebull on 6/21/2012. Mailed to Longjaw. (TAG, )
FILED
JUN 2 1 2012
PATRICK E. DUFFY CLERK
BY _ _~~:::r.---
oeputy cieri(
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
TIMOTHY J. LONGJAW,
Petitioner,
vs.
MIKE MAHONEY; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
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Cause No. CV 12-68-BLG-RFC
ORDER OF DISMISSAL
On June 1,2012, Petitioner Timothy J. Longjaw submitted documents seeking
to challenge the proceedings in the course of a direct appeal being litigated in the
Montana Supreme Court. This is the second time Longjaw has submitted such a
document. The first was filed on August 25, 2011, and dismissed on September 7,
2011. Longjaw is a state prisoner proceeding pro se in this Court. He is represented
by counsel in the Montana Supreme Court.
ORDER OF DISMISSAL / PAGE 1
Longjaw's action is both premature and misguided.
First, federal courts do not intervene in state criminal proceedings unless there
is a grave risk of irreparable injury that is both great and immediate. Younger v.
Harris, 401 U.S. 37, 46 (1971). In particular, "the threat to the plaintiffs federally
protected rights must be one that cannot be eliminated by his defense against a single
criminal prosecution." [d. Nothing Longjaw has said remotely approaches that very
high standard. "[T]he ordinary procedures for criminal prosecution are designed to
move at a deliberate pace." United States v. Ewell, 383 U.S. 116, 120 (1966).
Second, if, as Longjaw claims, appellate counsel has committed errors, and if
Longjaw wants a federal court to review those claims, he must - must means must
exhaust state postconviction procedures, Mont. Code Ann. § 46-21-101 et seq.,
including appeal, before he may file a federal habeas petition. 28 U.S.C. § 2254(b),
(c); Rose v. Lundy, 455 U.S. 509, 520 (1982) (giving "a simple and clear instruction
to potential litigants: before you bring any claims to federal court, be sure that you
first have taken each one to state court."); see also 28 U.S.C. § 2244(b) (imposing
stringent rule that state prisoner may file only one federal habeas petition challenging
a state judgment).
Longjaw is entitled to "reasonably prompt constitutional scrutiny of his
conviction" in federal court. Phillips v. Vasquez, 56 F .3d 1030, 1035 (9th Cir. 1995).
ORDER OF DISMISSAL / PAGE 2
The proceedings in his direct appeal, however, are nowhere near the point of
unreasonable delay. In Phillips, id., in bifurcated guilt/penalty phase proceedings,
there was no ruling by the state court on the legality ofthe penalty phase fifteen years
after conviction in the guilt phase was final. In Coe v. Thurman, 922 F .2d 528, 529
(9th Cir. 1990), where, more than three years after notice of appeal filed, not all
appellants had filed even an opening brief. In Longjaw's case, by contrast, the notice
ofappeal was filed in February 2011. The appeal was fully briefed on June 15,2012.
His concerns are wholly unwarranted.
Accordingly, IT IS HEREBY ORDERED as follows:
1. Longjaw's motion to proceed in forma pauperis (doc.) is GRANTED. The
Clerk of Court shall waive payment of the filing fee.
2. This action is DISMISSED.
3. A certificate of appealability is DENIED because Longjaw is litigating his
February 2011 direct appeal in the Montana Supreme Court and briefing was
completed on June 15,2012.
4. The Clerk of Court shall enter, by separate document, a judgment of
dismissal.
5. Motions for reconsideration, relief from the judgment, or ofany other kind
ORDER OF DISMISSAL / PAGE 3
will not be entertained ~1l be stricken if filed.
DATED this
21
day of June, 2012.
·chard F. Cebull, Chief Judge
United States District Court
ORDER OF DISMISSAL / PAGE 4
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