Ayers v. State of Montana

Filing 2

ORDER DISMISSING 1 PETITION AND DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Susan P. Watters on 6/18/2014. Mailed to Ayers. (TAG, )

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
TWAIN NEWMAN AYERS,

JUN 18 2014

ci~~t~c?o?M~~"iaCourt
Billings

Cause No. CV 14-82-BLG-SPW

Petitioner,
vs.

ORDER DISMISSING PETITION
AND DENYING CERTIFICATE OF
APPEALABILITY

LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

This case comes before the Court on Petitioner Twain Newman Ayers'
petition for a writ of error coram nobis and declaratory judgment. Ayers is a state
prisoner proceeding pro se.
"[T]he coram nobis writ allows a court to vacate its judgments for errors of
fact." Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) (emphasis
added); see also Black's Law Dictionary 338 (7th ed. 1999). Although he labels his
petition "coram nobis," Ayers does not assert error in a judgment entered by this
Court. Therefore, coram no bis relief is not available from this Court.
Ayers claims he was unlawfully imprisoned under an invalid or void
sentence as a result of an unconstitutional conviction for partner or family member
assault. Pet. (Doc. 1) at 1. Although he purports to seek merely a declaratory
judgment that his assertion is correct, the Declaratory Judgment Act, 28 U.S.C. §
1

na

2201, does not confer jurisdiction on a federal court to decide the matter presented.

Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950). The only
jurisdictional basis for a federal court to hear a claim alleging the
unconstitutionality of a state prisoner's custody under a state court's criminal
judgment is found in 28 U.S.C. §§ 2241and2254. E.g., White v. Lambert, 370
F .3d 1002, 1009-10 (9th Cir. 2004); 1 see also Gruntz v. County of Los Angeles (In

re Gruntz), 202 F .3d 1074, 1079 (9th Cir. 2000) (en bane); see also Edwards v.
Balisok, 520 U.S. 641, 648 (1997). Consequently, the petition must be
recharacterized as a petition under 28 U.S.C. § 2254. 2
28 U.S.C. § 2244(b) prohibits Ayers from being heard under§ 2254,
because he has already filed and litigated to conclusion in this Court one petition
under 28 U.S.C. § 2254. See Ayers v. Frink, No. CV 13-103-BLG-SEH (D. Mont.
filed Aug. 5, 2013); see also Beaty v. Schriro, 554 F.3d 780, 782-83 & n.1 (9th Cir.
2009). The petition and a certificate of appealability were denied on September 16,
2013. Order (Doc. 5), Ayers, No. CV 13-103-BLG. The Court of Appeals denied a
certificate of appealability on January 31, 2014. Order (Doc. 9), Ayers, No. CV 13-

1

White was overruled on other grounds by Hayward v. Marshall, 603 F.3d 546, 554 (9th
Cir. 2010) (en bane), which was itself overruled on other grounds by Swarthout v. Cooke,_
U.S._, 131 S. Ct. 859, 862-63 (20ll)(percuriarn). Theportionofitsholdingreliedonhere
remains good law.
2
Castro v. United States, 540 U.S. 375, 377 (2003), requires district courts to give prose
litigants notice and an opportunity to respond before recharacterizing a filing as a first habeas
application. The requirement does not apply when a filing is recharacterized as a second or
successive habeas application.

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103-BLG. Ayers filed a petition for writ of certiorari, which is currently pending
in the United States Supreme Court. Ayers v. Frink, No. 13-10149 (U.S. filed May
9, 2014). Ayers may not file in this Court a second petition governed by 28 U.S.C.
§ 2254 unless he obtains leave from the Ninth Circuit Court of Appeals. 28 U.S.C.
§ 2244(b)(3). The existence of the restrictions on second or successive habeas
petitions under§ 2254 does not amount to a suspension of the writ under Article I,
§ 9, of the Constitution, Felker v. Turpin, 518 U.S. 651, 664 (1996), and so does
not open a path for state prisoners to proceed under § 2241 or other authority
instead.
The Court of Appeals has not authorized Ayers to file a second petition
under§ 2254. See 28 U.S.C. § 2244(c). Consequently, the petition must be
dismissed for lack of jurisdiction in this Court. Burton v. Stewart, 549 U.S. 147,
149 (2007) (per curiam).
A certificate of appealability is denied because the petition is clearly
governed by § 2254 and its disposition is clearly controlled by Burton and Beaty.

Gonzalez v. Thaler,_ U.S._, 132 S. Ct. 641, 648 (2012) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).
To whatever extent Ayers seeks relief in the form of a federally mandated
remedy in the state courts, Montana law provides adequate remedies to challenge a
conviction, e.g., Mont. Code Ann.§§ 46-20-101, 46-21-101 et seq., 46-22-101 et

3

seq., as well as the constitutionality ofa state statute, e.g., id.§ 27-8-101 et seq.;
Dorwart v. Caraway, 58 P.3d 128, 136 if 44 (Mont. 2002). No State is required by
federal law to afford any of its citizens the writ of error coram nobis or any other
particular form of judicial remedy. See, e.g., Mooney v. Holohan, 294 U.S. 103,
112-13 (1935).

Accordingly, IT IS HEREBY ORDERED as follows:
1. Ayers' petition for writ of error coram nobis and declaratory judgment
(Doc. 1) is RECHARACTERIZED as a petition for writ of habeas corpus under 28

u.s.c. § 2254.
2. Ayers' petition is DISMISSED for lack of jurisdiction because it is an
unauthorized second or successive petition. To the extent he seeks to compel the
State of Montana to provide a particular form of judicial remedy or relief, his
petition is DENIED for lack of merit.
3. The Clerk of Court is directed to enter, by separate document, a judgment
of dismissal.
4. To the extent it is required, a certificate of appealability is DENIED.
DATED this

~
_LL day of June, 2014.

Lrw~
Susan P. Watters
United States District Court
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