Devlin v. State of Montana
ORDER denying 33 Motion to Reopen Case; denying 35 Motion for Writ. Signed by Judge Dana L. Christensen on 1/6/2017. Mailed to Devlin. (TAG)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
Cause No. CV 15-172-M-DLC-JCL
LEROY KIRKEGARD, et al.,
On December 5, 2016, this Court adopted United States Magistrate Judge
Jeremiah C. Lynch's Findings and Recommendations and dismissed Mr. Devlin's
habeas petition as time-barred. Devlin subsequently filed a Motion for Stay of
Judgment which was construed as a Motion for Reconsideration. (Doc. 30). As
was explained to Devlin, because he failed to present newly discovered evidence or
demonstrate that the Court had committed clear error, he was not entitled to relief
under either Federal Rule of Civil Procedure 59(e) or 60(b). (Doc. 31at2-3). The
Court also considered Devlin's apparent frustration at proceeding prose, but
determined that adequate opportunity and resources had been provided to Devlin.
Id. at 3. Devlin failed to present new factual evidence to support his claim of
Devlin, undeterred, continues to seek reconsideration of the dismissal of his
petition. He seeks to reopen the proceedings based apparently upon "newly
discovered evidence" which consists of the fact that he was not indicted by a grand
jury, but rather his state felony prosecution was initiated by the filing of an
information. See, (Docs. 33; 34). Devlin also reasserts his argument relative to the
lack of resources available to prisoners at the Montana State Prison library, see
(Doc. 33-1 at 1), and again argues that his untimeliness should be excused because
he is actually innocent and was denied his full appellate record. Id. at 2-3; see also,
(Doc. 34-2 at 2). Devlin again requests an evidentiary hearing before this Court
and the appointment of counsel. Id. at 4; see also, (Docs. 33-2; 34-1; 34-2; 34-3).
In addition, Devlin has filed an "Ex Parte Petition for a Writ of Error Quo
Warranto." (Doc. 35).
Upon review of Devlin's recent filings, the previous order of this Court
dismissing Devlin's petition remains. Devlin's prior motion for reconsideration
was already addressed on its merits. See, (Doc. 31 ). Nothing contained in
Devlin's recent filings alters the analysis already provided for this Court's denial.
To the extent that Devlin seeks to now raise new claims, this Court is without
jurisdiction to hear them unless and until Devlin obtains leave from the Ninth
Circuit Court of Appeals to file a successive habeas petition. 28 U.S.C. § 2244(b );
Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam).
Finally, under federal case law, a quo warranto proceeding can be brought
only by the United States, and not a private individual. Johnson v. Manhattan Ry.
Co., 289 U.S. 479, 502 (1933) (Quo warranto is addressed to preventing a
continued exercise of authority unlawfully asserted, not to a correction of what
already has been done under it or to a vindication of private rights). "[T]he federal
common law remedy has been available only in connection with proceedings over
an individual's right to hold an office or position." Sundance Land Corp. v. Cmty.
First Fed. Sav. & Loan Ass 'n, 840 F. 2d 653, 665 (9th Cir. 1988). To the extent
that Devlin seeks to circumvent the procedural requirements for habeas petitions,
he may not do so by attempting to file a successive petition or claim under the
guise of a petition for a writ quo warranto. The Court has considered all of
Devlin's claims; his recourse, if any, now lies in appeal.
Accordingly, IT IS ORDERED that Devlin's Motion to Reopen Case (Doc.
33) and Motion for Writ of Error Quo Warranto (Doc. 35) are DENIED.
DATED this ~day of January, 20
Dana L. Christensen, Chief Judge
United States District Court
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