Wylie v. State of Montana

Filing 27

ORDER DENYING SOME CLAIMS AND DENYING MOTION FOR IMMEDIATE RELEASE. Wylie's motion to correct the record 9 is DENIED AS MOOT. Claims 2, 3, 5, 7, 9, 11, and 12 are DISMISSED. Claims 1, 4, 6, 8, and 10 are DISMISSED except to the extent an Answer is required. Wylie's motion for immediate release 13 is DENIED. Signed by Magistrate Carolyn S Ostby on 1/16/2013. Mailed to Wylie. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
______________________________
HEATHER ERIN WYLIE,

)
Cause No. CV 12-41-BU-CSO
)
Petitioner,
)
)
vs.
)
ORDER DENYING SOME CLAIMS
)
AND DENYING MOTION FOR
MONTANA WOMEN’S PRISON; )
IMMEDIATE RELEASE
ATTORNEY GENERAL OF
)
THE STATE OF MONTANA,
)
)
Respondent.
)
______________________________
This case originally came before the Court on referral pursuant to 28 U.S.C. §
636(b)(1) and D. Mont. L.R. 72.2(a)(1). On October 29, 2012, the Court issued
Findings and Recommendation concluding that several claims should be denied and
ordering an Answer from Respondent (“the State”) on others. On November 19,
2012, Wylie filed an objection and a motion to correct the record. In addition, on
December 4, 2012, the Court issued Findings and Recommendation concluding that
Petitioner Wylie’s motion for immediate release should be denied.
On January 11, 2013, based on the parties’ written consent, see Consents (doc.
ORDER DENYING SOME CLAIMS AND DENYING
MOTION FOR IMMEDIATE RELEASE / PAGE 1

26-1), the matter was reassigned to the undersigned for all further proceedings,
including entry of judgment.
In her objections to the recommendation to dismiss claims, Wylie expresses
concern over potential preclusive effect, in this action or a possible future civil
lawsuit, of dismissal of some claims at this point. But the recommendation merely
identifies “claims that are both cognizable in habeas and capable of supporting relief.”
Findings and Recommendation (doc. 6) at 6 (emphases added). Wylie may still refer
to evidence or argument she initially made in connection with a dismissed claim to
show the context of a claim that is going forward or to show that she was prejudiced
as a result of a constitutional violation alleged in a claim that is going forward.
The only objection of substance is Wylie’s contention that the State’s multiple
amendments of the charging document did, in fact, constitute double jeopardy. But
Counts 1 and 3 plainly charge two different offenses, compare Count 1 with Count 3,
Corrected Am. Information (doc. 5-4 at 26-27), and amending an information multiple
times before trial does not itself violate the Constitution.
Wylie’s motion to correct the record (doc. 9) is moot. Its allegations will be
addressed along with Claims 1, 10, and perhaps 8.

Based on the foregoing, the Court enters the following:
ORDER DENYING SOME CLAIMS AND DENYING
MOTION FOR IMMEDIATE RELEASE / PAGE 2

ORDER
1. Wylie’s motion to correct the record (doc. 9) is DENIED AS MOOT.
2. Claims 2, 3, 5, 7, 9, 11, and 12 are DISMISSED.
3. Claims 1, 4, 6, 8, and 10 are DISMISSED except to the extent an Answer
is required.
4. Wylie’s motion for immediate release (doc. 13) is DENIED.
The Court will review the remaining claims in light of the parties’ submissions
to date. The Court will consider whether counsel should be appointed or an
evidentiary hearing should be held. No further filings from either party are necessary
at this time. When the review is completed, the Court will issue an Order setting forth
the next step in the proceedings.
DATED this 16th day of January, 2013.
/s/ Carolyn S. Ostby
United States Magistrate Judge

ORDER DENYING SOME CLAIMS AND DENYING
MOTION FOR IMMEDIATE RELEASE / PAGE 3