Bertelsen

Filing 4

ORDER DISMISSING CASE. Unless Bertelsen contemporaneously provides an authorization from the Circuit permitting a second/successive petition, the Clerk of Court shall accept no further filings from Bertelsen challenging his 2017 state court conviction. If no authorization is provided, future documents from Bertelsen will be discarded. COA denied. Signed by Judge Brian Morris on 8/1/2022. Mailed to Bertelsen with documents as directed (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
Cause No. CV 22-57-GF-BMM
IN RE:
SHAYNE BERTELSEN

ORDER

Shayne Bertelsen has again filed documents with this Court, which purport
to challenge his state court conviction and sentence. He asks the Court to “open
up” the federal courts for hearings and remedies and lift stays that were previously
imposed, beginning in 2017. See, (Doc. 1 at 1, 3.) Bertelsen again asserts he is
innocent of Incest. He asks this Court to relieve him of his state sentence and
initiate criminal charges against various individuals involved in his state
prosecution. Id. at 2-3. Bertelsen also requests an “extraordinary remedy,”
specifically that he be transferred to a facility closer to Great Falls so that he may
be “processed…and [get] ready for court hearings.” (Doc. 2 at 1.)
This Court is very familiar with Bertelsen. His procedural filing history has
been set forth in great detail in prior orders of the Court and will not be repeated
herein. Undeterred, Bertelsen continues to file similar challenges to his state court
conviction and sentence. All of his prior federal habeas petitions have been
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dismissed.1 Additionally, despite his own claims to the contrary, the Court found
Bertelsen failed to make a compelling showing of actual innocence that would
excuse the default of his claims. See, Bertelsen v. Dunhop et al., CV-21-102-GFBMM, Or. at 4-5 (D. Mont. Feb. 17, 2022).
Similarly, the claims contained in Bertelsen’s civil rights complaint filed
under 42 U.S.C. § 1983 were addressed and dismissed. See, Bertelsen v. Dunhop
et al., Cause No. CV-21-124-GF-BMM, Or. (D. Mont. April 4, 2022). Bertelsen
has been advised that he may not keep filing documents in his closed cases and the
clerk of Court has been directed to discard Bertelsen’s continued filings.2
In addition to the instant matter, Bertelsen continues to file documents by
mail or have his mother, Durene, hand-deliver documents to the Court. These
filings are duplicative in nature and repeat claims that this Court has already denied
or dismissed. Aside from the instant matter, Bertelsen has no active matters
pending and none of his federal cases have been stayed.

1

See, Bertelsen v. State, CV-17-48-GF-BMM, Or. (D. Mont. July 10, 2017)(dismissed as
unexhausted); In re: Bertelsen, CV-19-20-GF-BMM, Or. (D. Mont. April 9, 2019) (dismissed as
unexhausted); Bertelsen v. Attorney General, Cause No. CV-20-39-GF-BMM, Or. (D. Mont.
June 30, 2020) (dismissed as unexhausted); Bertelsen v. Dunhop et al., Cause CV-21-102-GFBMM, Or. (D. Mont. Feb. 17, 2022)(dismissed as unexhausted and procedurally defaulted).
2

See e.g., Bertelsen v. Dunhop et al., Cause No. CV-21-124-GF-BMM, Or. (D. Mont. May 2,
2022); see also, Bertelsen v. Dunhop et al., CV-21-102-GF-BMM, Or. (D. Mont. May 2, 2022);
Bertelsen v. Attorney General, CV-20-39-GF-BMM, Or. (D. Mont. April 14, 2022).

2

There is no relief that this Court may provide to Bertelsen. When an
individual is in custody pursuant to a state court judgment, 28 U.S.C. § 2254,
provides the only habeas remedy for any challenge to his detention, regardless of
the nature of such challenge. White v. Lambert, 370 F. 3d 1002, 1009-10 (9th Cir.
2004), overruled on other grounds by Hayward v. Marshall, 603 F. 3d 546 (9th Cir.
2010)(en banc). Generally, a petitioner has only one full and fair opportunity to
challenge a state court judgment of conviction, absent very limited circumstances.
See e.g., U.S. v. Barrett, 178 F. 3d 34, 57 (1st Cir. 1999);3 see also, 28 U.S.C. §
2244(b) (prohibiting the filing of second or successive petitions); Burton v.
Stewart, 549 U.S. 147, 149 (2007) (per curiam)(district court lacks jurisdiction to
hear a second or successive petition absent authorization from the Circuit Court).
As set forth above, Bertelsen had his opportunity to challenge his 2017 conviction;
he failed to demonstrate actual innocence with newly discovered evidence.
Similarly, because Bertelsen has neither open cases nor upcoming hearings before
this Court, there is no basis upon which to order his transfer to another facility.

“There is only one bite at the post-conviction apple unless a second or successive petition can
show one of two things: a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable, or newly discovered evidence
sufficient to establish by clear and convincing evidence, on the whole record, that no reasonable
factfinder would have returned a guilty verdict. A claim of actual innocence—defined as factual
innocence, not mere legal insufficiency—will have a mechanism for review.”
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3

Until Bertelsen obtains authorization from the Ninth Circuit to file in this
Court, under 28 U.S.C. § 2244(b)(3)(A), this Court lacks jurisdiction to hear this
petition or any future filings. Burton v. Stewart, 549 U.S. 147, 149 (2007)(per
curiam). Bertelsen’s abuse of the writ and unnecessary use of this Court’s time and
resources must come to an end.
This matter is dismissed. Absent authorization from the Ninth Circuit to file
a second and/or successive petition, no further filings from Bertelsen challenging
his 2017 state court conviction will be accepted.
A certificate of appealability is denied because there is no doubt this Court
lacks jurisdiction. Transfer to the Court of Appeals is not in the interest of justice.
See, 28 U.S.C. § 1631.
Accordingly, IT IS HEREBY ORDERED as follows:
1. This matter is DISMISSED for lack of jurisdiction. The Clerk of Court
shall enter, by separate document, a judgment of dismissal.
2. To the extent that Bertelsen’s Notice (Doc. 2) is construed as a motion
for transfer, the request is DENIED.
3. Unless Bertelsen contemporaneously provides an authorization from the
Circuit permitting a second/successive petition, the Clerk of Court shall accept no
further filings from Bertelsen challenging his 2017 state court conviction. If no
authorization is provided, future documents from Bertelsen will be discarded by
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the Clerk and will not be considered by the Court.
3. The Clerk of Court is directed to return the documents submitted by
Bertelsen and his mother in June of 2022 to Bertelsen.4
4. A certificate of appealability is DENIED.
5. This action is CLOSED. No further documents may be
filed.

DATED this 1st day of August, 2022.

4

By prior order of the Court, documents submitted by Bertelsen in closed matters were directed
to be discarded. See e.g., Bertelsen v. Dunhop et al., CV-21-102-GF-BMM, Or. (D. Mont. May
2, 2022). Out of an abundance of caution, these documents have been retained in the pro se
department.

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