Lout v. State of Montana

Filing 3

ORDER OF DISMISSAL. Lout's "Notice of Appeal" is DISMISSED. A certificate of appealability, if required, is DENIED. The Court CERTIFIES that any appeal from this disposition would be taken in bad faith. Judge Strong removed from case. Signed by Judge Donald W. Molloy on 7/15/2011. Mailed to Lout. (TAG, ) Modified on 7/15/2011 to correctly identify magistrate judge (TAG, ).

Download PDF
FILED IN TIlE UNITED STATES DISTRICT COU~l JUL 152011 8y FOR TIlE DISTRICT OF MONTANA 'rRICI( E. DUF Fr, CLERI( DEF>t.J'iY · C LE;RI( MISSOUlA HELENA DIVISION JEFFERY J. LOUT, ) ) Petitioner/" Appellant," ) ) vs. ) ) STATE OF MONTANA, ) ) Respondentl"Appellee." ) Cause No. CV 11-35-H-DWM ORDER OF DISMISSAL On July 14, 2011, Jeffery Lout filed a purported "Notice of Appeal" from a decision of the Montana Supreme Court. For lack of a better option, the Clerk of Court filed the "Notice" as a petition for writ of habeas corpus under 28 U.S.C. § 2254, but it is clear that Lout asks this Court to exercise appellate jurisdiction. "[F]ederal district courts are courts of original, not appellate, jurisdiction." Gruntz v. County ofLos Angeles, 202 F.3d 1074, 1078 (9th Cir. 2000)(en banc). As Loutknows,~Loutv. Mahoney, No. CV 05-67-M-DWM-LBE(D. Mont. filed May 2,2005), he may obtain a federal court's review of his convictions and/or sentences by filing a petition for writ of habeas corpus. Fortns for doing so are available at 1 Montana State Prison or, on request, from the Clerk of this Court. If he intends to challenge a conviction or sentence he has already challenged in a habeas petition, he knows he must apply to the Ninth Circuit Court ofAppeals for leave to proceed with a second or subsequent petition. See "Notice of Appeal" at 3 (citing 28 U.S.C. § 2244(b) and Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam)). Lout's "Notice ofAppeal" will not be construed as a new habeas petition because he makes no allegations that are cognizable in habeas. To the extent a certificate of appealability is required, it is denied. Lout falls far short of showing a violation of constitutional rights, 28 U.S.C. § 2253( c)(2). No reasonable jurist could believe this Court has appellate authority over the Montana Supreme Court. Accordingly, IT IS HEREBY ORDERED that Lout's "Notice of Appeal" is DISMISSED. A certificate of appealability, ifrequired, is DENIED. For the reasons set forth above, the Court CERTIFIES that any appeal from this disposition would be taken in bad faith. No motions for reconsideration, amendment, reopening, or anything else will be entertained. This case is CLOSED. DATED this /fi.--+-­ ofJuly, 201 day . 11 y United Stat s Di trict Judge 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?