ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 2 in full. Bertelsen's petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Brian Morris on 7/10/2017. Mailed to Bertelsen (TAG)
JUL 1 0 2017
IN mE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
Cieri<, u.s Dismct Cou~
District Of Montana
Great Fa l!!:
STATE OF MONTANA,
ORDER ADOPTING MAGISTRATE
JUDGE'S FINDINGS AND
Petitioner Shayne Bertelsen filed documents seeking a writ of habeas corpus
pursuant to 28 U.S,c. § 2254 on June 7, 2017, United States Magistrate Judge John
Johnston issued Findings and Recommendations in this matter, (Doc. 2.) Judge
Johnston recommended that the Court dismiss Bertelsen's petition. Id. at 2.
Bertelsen filed an objection. (Doc. 4.) The Court reviews de novo findings and
recommendations to which objections are made. 28 U,S,C. § 636(b)(1)(C).
A jury convicted Bertelsen of incest on January 25, 2017, in the Eighth
Judicial District Court, Cascade County, Montana. (Doc. 1 at 2.) Bertelsen
apparently has not been sentenced, although his objection states that his sentencing
was scheduled for July 6, 2017. (Doc. 4.) Bertelsen alleges that he was convicted
using false evidence and that he is actually innocent of the crime. !d. at 1-2.
Bertelsen further asserts that Child Protection Services unlawfully "coached" the
victim. [d. at 3; see also Doc. 1-1 at 1-2. He contends that the prosecution withheld
exculpatory evidence in violation of Brady v. Maryland, 373 U.S. at 83 (1963). [d.;
Doc. 1-1 at 4-5. He further alleges that law enforcement officers failed to
investigate and colluded with others to create an illegal forensic interview. [d. at 3
Judge Johnston recommended that the Court dismiss Bertlesen's petition
because he had failed to exhaust the remedies available to him in the state court
system. (Doc. 2 at 2.) Federal courts may not grant a writ of habeas corpus brought
by an individual in custody pursuant to a state court judgment unless "the applicant
has exhausted the remedies available in the courts of the State." 28 U.S.C.
§2254(b)( 1)(A). Principles of comity ground the exhaustion requirement and give
states the first opportunity to correct alleged violations of a prisoner's federal
rights. Colemanv. Thompson, 501 U.S. 722, 731 (1991).
To meet the exhaustion requirement, a petitioner must meet a three-part test
in one proceeding. First, the petitioner must demonstrate that he has used the
"remedies available" through the state's established procedures for appellate
review. 28 US.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). Second, the petitioner must describe "the federal legal theory on which his
claim is based." Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). Third, the
petitioner must describe "the operative facts ... necessary to give application to
the constitutional principle upon which the petitioner relies," Jd. See also Gray v.
Netherland, 518 U.S. 152, 162-63 (1996) (discussing Picard v. Connor, 404 US.
270 (1971), and Anderson v. Harless, 459 US. 4 (1982)).
Remedies remain for Bertelsen under state law, including direct and
collateral review. He has not exhausted his state remedies and this Court cannot
review his claims. 28 US.c. §2254(c); See Rose v. Lundy, 455 U.S. 509 (1982).
Bertelsen may return to this Court if and when he fully exhausts the claims relative
to his current custody in the state courts.
Accordingly, IT IS ORDERED that Magistrate Judge Johnston's Findings
and Recommendations (Doc. 2) is ADOPTED IN FULL. Bertelsen's petition for
writ of habeas corpus is DISMISSED WITHOUT PREJUDICE. A certificate of
appealability is DENIED for the reasons stated in the Findings and
Recommendations. (Doc. 2 at 3-4.)
IT IS FURTHER ORDERED that the Clerk of Court shall enter by
separate document a judgment in favor of Respondents against Petitioner.
DATED this 10th day of July, 2017.
United States District Court Judge
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