Godfrey v. Kirkegard

Filing 8

ORDER denying 4 "Objection", construed as a Rule 60(b) motion, filed by Tracey Godfrey. To the extent it is required, a certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 10/7/2014. Mailed to Godfrey. (TAG, )

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

FILED
OCT 0 7 2014
Cle~. y.5. District Court
Diltrict Of Montana

Cause No. CV 14-190-M-~la

TRACEY R. GODFREY,
Petitioner,

ORDER DENYING RULE 60(b)
MOTION AND DENYING
CERTIFICATE OF APPEALABILITY

vs.
LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

On June 16, 2014, Petitioner Tracey Godfrey filed this action. He labeled
the petition one for a writ of error coram nobis. The petition was dismissed for
lack ofjurisdiction on June 20, 2014, and a certificate of appealability was denied.
On June 30, 2014, Godfrey filed a procedurally inapposite "objection." On July
21,2014, he filed a notice of appeal.
On August 19,2014,1 the Court of Appeals issued an order referring to a
"pending motion" in this matter. This Court's docket does not show a pending
motion, only Godfrey's procedurally inapposite "objection." In light of the Court
of Appeals' order, however, it appears the Court is required to construe Godfrey's
objection as a motion under Fed. R. Civ. P. 60(b). It is sometimes difficult for a
The Court did not receive the Court of Appeals' order until September 30, 2014, when
it arrived in the mail.
1

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district judge to know how to apply the principle of liberal construction of pro se
pleadings when there is no conceivable argument for relief under any procedurally
applicable provision of law.
Construed as a Rule 60(b) motion, Godfrey's "objection" is denied. Coram
nobis relief is not available from this Court as it is not the Court that convicted and
sentenced Godfrey. Hirabayashi v. United States, 828 F.2d 591,604 (9th Cir.

1987); see also Black's Law Dictionary 338 (7th ed. 1999). No other common-law
writ is available either. E.g., Matus-Leva v. United States, 287 F.3d 758, 760-61
(9th Cir. 2002). Declaratory judgment is not available. Skelly Oil Co. v. Phillips

Petroleum Co., 339 U.S. 667, 671-72 (1950).
The sole and exclusive jurisdictional basis for a federal court to hear a claim
alleging the unconstitutionality of a state prisoner's custody under a state court's
criminal judgment is found in 28 U.S.C. §§ 2241 and 2254. E.g., White v.

Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004);2 see also Gruntz v. County of
Los Angeles (In re Gruntz), 202 F.3d 1074, 1079 (9th Cir. 2000) (en banc); see
also Edwards v. Balisok, 520 U.S. 641, 648 (1997). Consequently, Godfrey's
petition must be treated as a petition under 28 U.S.C. § 2254. 3

2 White was overruled on other grounds by Hayward v. Marshall, 603 F.3d 546, 554 (9th
Cir. 2010) (en banc), which was itself overruled on other grounds by Swarthout v. Cooke,_
U.S. _, 131 S. Ct. 859, 862-63 (2011) (per curiam). The portion of its holding relied on here
remains good law.
3 Castro v. United States, 540 U.S. 375,377 (2003), requires district courts to give pro se

2

Godfrey was originally sentenced in 2000. In 2014, he was resentenced
pursuant to state law. He filed and litigated to conclusion one habeas petition
under 28 U.S.C. § 2254 after the trial court entered the new judgment on remand
from the Montana Supreme Court in Godfrey v. Kirkegard, No. OP 13-0258
(Mont. filed July 2, 2013), available at http://supremecourtdocket.mt.gov
(accessed Oct. 7,2014). Godfrey's federal petition was denied for lack of merit.

See Order (Doc. 7) at 3, Godfrey v. Kirkegard, No. CV 14-27-M-DLC (D. Mont.
judgment entered May 5, 2014).4 Two weeks later, Godfrey brought a second
habeas petition under 28 U.S.C. § 2254. See Godfrey v. Kirkegard, No. CV 14­
164-M-DLC (D. Mont. judgment entered June 12,2014). It was dismissed for lack
ofjurisdiction as an unauthorized second or successive petition. Order (Doc. 7) at

3, Godfrey, No. CV 14-164-M (D. Mont. June 12,2014).5 Four days later, Godfrey
filed the instant petition for writ of error coram nobis, over which the Court lacks
jurisdiction as well, based on well-established law in the Ninth Circuit.
The Court perceives no cognizable basis for a Rule 60(b) motion. While
Godfrey remains in custody that is, in prison or serving a suspended sentence on

litigants notice and an opportunity to respond before recharacterizing a filing as a first habeas
application. The notice requirement does not apply when a filing is recharacterized as a second or
successive habeas application.
4 The Court of Appeals denied a certificate of appealability. Order at 1, Godfrey v.
Kirkegard, No. 14-35405 (9th Cir. Aug. 8,2014).
5 The Court of Appeals denied a certificate of appealability. Order at 1, Godfrey v.
Kirkegard, No. 14-35521 (9th Cir. Aug. 8,2014).

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conditional release - the only means of challenging his state conviction or
sentence for sexual assault lies in 28 U.S.C. § 2254. This Court does not have
jurisdiction to hear Godfrey's claims on the merits.
It is not clear whether a certificate of appealability is required. Godfrey did
not file a Rule 60(b) motion, and there is no conceivable basis for one. See Jones

v. Ryan, 733 F.3d 825, 832 (9th Cir. 2013). To the extent a certificate of
appealability is required, it is denied. The procedural ruling - that this Court lacks
jurisdiction - is not open to question. Burton v. Stewart, 549 U.S. 147, 149 (2007)
(per curiam); Gonzalez v. Thaler,

U.S. _, 132 S. Ct. 641, 648 (2012).

Accordingly, IT IS HEREBY ORDERED that Godfrey's "objection" (Doc.
4), construed as a Rule 60(b) motion, is DENIED. To the extent it is required, a
certificate of appealability is DENIED.
DATED this

-:r~ day of October,

Dana L. Christensen, Chief Judge
United States District Court

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