Cooley v. Salmonson

Filing 10

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 in full. A certificate of appealability is DENIED. Signed by Judge Brian Morris on 3/26/2018. Mailed to Cooley (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
RICKY COOLEY,
Petitioner,

CV-18-11-BU-BMM

vs.
ORDER
JAMES SALMONSON,
Respondent.
Petitioner Ricky Cooley (Cooley) has filed an Amended Petition seeking a
writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 5). Cooley is a state prisoner
proceeding pro se.
Cooley was arrested in Montana on July 2, 2017, for violations of Montana
law. (See Doc. 1 at 1). Cooley had a pending “parole at large” warrant from the
State of Louisiana at the time of his arrest. Id. Cooley entered into a plea
agreement with the State of Montana. Cooley pleaded guilty to three counts of theft
of a motor vehicle in Montana’s Second Judicial District Court, Butte-Silver Bow
County. (See Doc. 5 at 2).
The state court sentenced Cooley on October 10, 2017. The state court
committed Cooley to the Montana Department of Corrections (DOC) for a term of
10 years, with 5 years suspended. (See Doc. 5 at 2).

Cooley requested that the DOC place him in a drug treatment facility. DOC
officials declined Cooley request given that he had a pending warrant from
Louisiana. The DOC placed Cooley in the Montana State Prison. Cooley alleges
that his placement at the Montana State Prison violates the spirit of his plea
agreement and his rights under the United States Constitution. (Doc. 5 at 3).
United States Magistrate Judge Jeremiah C. Lynch issued Findings and
Recommendations in this matter on February 27, 2018. (Doc. 7). Judge Lynch
recommended that Cooley’s Amended Petition be dismissed because Cooley had
not yet exhausted his state court remedies. (Doc. 7 at 4-5). Cooley did not file
objections to Judge Lynch’s Findings and Recommendations.
The Court has reviewed Judge Lynch’s Findings and Recommendations for
clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981). The Court finds no error in Judge Lynch’s Findings
and Recommendations, and adopts them in full. A review of Cooley’s Amended
Petition reveals that he has not sought any appellate or collateral relief in the state
courts. This Court cannot review Cooley’s Amended Petition until he has
exhausted his state court remedies. See Rose v. Lundy, 455 U.S. 509, 518-522
(1982).
Accordingly, IT IS ORDERED:
1.

Cooley’s Amended Petition (Doc. 5) is DISMISSED without prejudice
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for failure to exhaust state court remedies.
2.

A certificate of appealability is DENIED. Cooley has not made a

substantial showing that he was deprived of a constitutional right. Reasonable
jurists would agree that Cooley has failed to exhaust his state court remedies.
3.

The Clerk is directed to enter judgment accordingly.

DATED this 26th day of March, 2018.

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