Plebst v. State of Montana et al

Filing 2

ORDER DISMISSING CASE. The "Notice of Intent to File Appeal" 1 , docketed as a petition for writ of habeas corpus, is DISMISSED WITHOUT PREJUDICE, and a certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 1/6/2012. Mailed to Plebst. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

ROBERT GLEN PLEBST,

F'lE~:
JAN 06 2012

,;'ATRICK E. DUFFY, CLERK

0I/iiJ'TY Cl.IFII(, MISSOULA

Cause No. CV 11-175-M-DLC

Petitioner,
vs.

ORDER OF DISMISSAL

STATE OF MONTANA; UNITED
STATES DISTRICT COURT,
Respondents.

On December 29,2011, Robert Glen Plebst submitted a "Notice of Intent to

File Appeal" from a decision of the Montana Supreme Court. Plebst is a state
prisoner proceeding pro se.
A federal district court has no appellate jurisdiction over a state court. Gruntz
v. County o/Los Angeles (In re Gruntz), 202 F.3d 1074, 1078-79 (9th Cir. 2000) (en
banc). Because Plebst alleged "some" grounds for relief in the Notice, the Clerk of
Court filed the "Notice of Intent" as a petition for writ of habeas corpus under 28
U.S.C. § 2254.
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Plebst, however, is complaining about an ongoing postconviction appeal in the
Montana Supreme Court. Notice (doc. 1) at 1 ("I'm to have a brief in now by Jan
20th 2012"); see also Plebst v. State, No. DA 11-0516 (Mont. filed Aug. 24, 2011).
Federal courts do not interfere in ongoing state proceedings "except under
extraordinary circumstances where the danger of irreparable loss is both great and
immediate." World Famous Drinking Emporium v. City o/Tempe, 820 F .2d 1079,
1082 (9th Cir. 1987) (citing Younger v. Harris, 401 U.S. 37, 46 (1971)). The
prospect that Plebst may lose his postconviction appeal is not irreparable, nor are the
circumstances he alleges extraordinary.
Although Plebst may not appeal the Montana Supreme Court's decision to this
Court, he may file a petition for writ of habeas corpus after his state remedies have
been exhausted. A certificate of appealability is not warranted for this wholly
unexhausted petition. Lambright v. Stewart, 220 F.3d 1022, 1026 (9th Cir. 2000)
(quoting Slackv. McDaniel, 529 U.S. 473,484 (2000)).

Based on the foregoing, the Court enters the following:
ORDER
l. The "Notice of Intent to File Appeal" (doc. 1), docketed as a petition for

writ of habeas corpus, is DISMISSED WITHOUT PREJUDICE;

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2. A certificate of appealability is DENIED; and
3. The Clerk of Court shall immediately enter, by separate document, a
judgment of dismissal without prejudice.
DA1EDthis

,~ day of January,

Dana L. Christensen
United States District Court

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