Godfrey v. Montana

Filing 3

ORDER. Petition 1 DISMISSED. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 1/19/2016. Mailed to Godfrey. (TAG, )

FIL,ED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

JAN 1 9 20~5
Clerk, U.S. District Court
District Of Montane
Missoula

Cause No. CV 16-04-M-DLC

TRACEY R. GODFREY,
Petitioner,

ORDER
vs.
MONTANA,
Res ondent.
On January 11, 2016, Mr. Godfrey filed a document with this Court entitled
"Request for a Declaratory Judgment." (Doc. 1). Because it appears that Mr.
Godfrey attempts to challenge his sentence and the fact of his confinement, the
document was filed as a petition for a writ of habeas corpus. See, Freiser v.

Rodriguez, 411 U.S. 475, 488090 (1973); Young v. Kenny, 907 F. 2d 874 (9th Cir.
1989).
Mr. Godfrey filed a petition for a writ of habeas corpus with the Montana
Supreme Court challenging the imposition of two separate sentences upon himone for sexual assault and one for his designation as a persistent felony offender.
The Court remanded the matter to the trial court and a single sentence for
persistent felony offender of 60 years with 3 0 years suspended was subsequently
imposed for the persistent felony offender designation. Mr. Godfrey challenged
the revised sentence which the Montana Supreme Court held to be a legal sentence.

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Order at 2, Godfrey v. Kirkegard, No. OP 13-0717 (Mont. Jan. 7, 2014).
Mr. Godfrey has filed three prior habeas petitions in this Court challenging
the revised persistent felony offender sentence. In the first, he contended that the
resentencing violated his federal protection against double jeopardy and his right to
due process. This Court held that there was no constitutional violation and denied
Godfrey's petition on the merits. Godfrey v. Kirkegard, CV 14-27-M-DLC-JCL
(D. Mont. judgment entered May 2, 2014). Godfrey's second petition was
dismissed for lack of jurisdiction as an unauthorized second or successive petition.

Godfrey v. Kirkegard, CV 14-164-M-DLC-JCL (D. Mont. judgment entered June
12, 2014). Mr. Godfrey was advised that he could not file another petition in this
Court challenging his sexual assault/persistent felony offender sentence unless he
obtained leave from the Ninth Circuit Court of Appeals to do so. Despite this
directive, Mr. Godfrey filed yet another habeas petition which was also dismissed
for lack of jurisdiction. Godfrey v. Kirkegard, CV 14-190-M-DLC (D. Mont.
judgment entered June 20, 2014).
Although, characterized as a "Request for a Declaratory Judgment" the title
of this document does not obscure its true intent. Mr. Godfrey seeks yet again to
challenge his revised persistent felony offender sentence. There are two distinct
problems with Mr. Godfrey's current filing. First, it is an unauthorized successive
petition under 28 U.S.C. § 2244(b)(l). Second, Mr. Godfrey fails to state claim. A
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federal court, in conducting habeas review, is limited to deciding whether
a state court decision violates the Constitution, laws, or treaties of the United
States. 28 U.S.C. § 2254(a); Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011)(per
curium). Mr. Godfrey asks this Court to interpret a provision of the Montana
Constitution as applied to his sentence. Such a determination is not one that is to
be made by a federal court. See Mendez v. Small, 298 F. 3d 1154, 1158 (9th Cir.
2002 )(" [a] state court has the last word on interpretation of state law")(citations
omitted); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("we reemphasize
that it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions").
Accordingly, IT IS HEREBY ORDERED that Godfrey's petition (Doc. 1) is
DISMISSED. A certificate of appealability is DENIED.
DATEDthis tCf#aayofJanuary, 0 6.

Dana L. Christensen, Chief Judge
United States District Court

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