Keller v. Frink et al, No. 9:2014cv00173 - Document 6 (D. Mont. 2014)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Mr. Keller's petition 1 is DISMISSED. A certificate ofappealability is DENIED. Signed by Judge Dana L. Christensen on 8/13/2014. Mailed to Keller. (TAG, )

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Keller v. Frink et al Doc. 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION CV 14-173-M-DLC JERRY LEE KELLER, Petitioner, ORDER vs. FILL~' LEROY KlRKEGARD; ATTORNEY GENERAL OF THE STATE OF MONTANA, AUG f 3 201. c., u.s. District Court Dtitrfct Of ~NI MiIIouII Respondents. Petitioner Jerry Lee Keller, a state prisoner proceeding pro se, has filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Keller challenges the revocation of his suspended sentence for aggravated assault and negligent endangerment contending his sentence is illegal, he was not properly credited for probation time, and that counsel failed to adequately aid his defense. United States Magistrate Judge Jeremiah Lynch entered his Findings and Recommendation in this matter on May 30, 2014. (Doc. 4.) Judge Lynch recommends that the Court dismiss the petition and deny a certificate of appealability ("COA") because all of Keller's claims lack merit. Keller timely objected, preserving his right to de novo review ofthe specific findings and 1 Dockets.Justia.com recommendations to which he objects. 28 U.S.C. § 636(b)(1). The portion of the findings and recommendations not specifically objected to will be reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F .2d 1309, 1313 (9th Cir. 1981). For the reasons stated below, the Court will adopt Judge Lynch's findings and recommendation in full. Background Keller was originally sentenced to serve 15 years in prison with 13 years suspended for aggravated assault and negligent endangerment on September 29, 1999. Keller served 33 days in jail and then probation prior to his revocation. At issue is the second revocation of the suspended portion of his sentence on October 28, 2004 where Keller was re-sentenced to 13 years in prison. Keller was on probation from October 29,2000, to October 13, 2004, for a total of 1,445 days. Upon re-sentencing, the trial court gave Keller credit of 820 days for jail and probation time served prior to the second revocation. Keller raises two objections to Judge Lynch's findings and recommendation. Keller's first objection alleges due process violations because his revocation fails to comply with Montana law. Keller's second objection claims ineffective assistance of counsel arguing his attorney failed to secure credit for his total probation time served as part of his re-sentencing. Finally, Keller requests that the Court provide 2 transcripts of his sentence revocation hearing. I. Illegal Sentence Keller contends that his sentence is illegal under Montana law and that he was improperly credited for probation time under a mis-interpretation of the trial court order. This Court may "entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution laws or treaties of the United States." 28 U.S.C. § 2254 (2006). Keller's illegal sentence issue raises state law questions that were already resolved at the Montana Supreme Court and which are not subject to federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("Today we reemphasize that it is not the province ofa federal habeas court to reexamine state court determinations on state law questions."); Wisconsin v. Mitchell, 508 U.S. 476, 483 (1993) (citations omitted) ("There is no doubt that we are bound by a state court's construction of a state statute"). And even if the State had violated state law, Keller would not be entitled to federal habeas relief on this basis. Wilson v. Corcoran, _ U.S. _, 131 S. Ct. 13, 16 (2010) (per curiam); Lewis v. Jeffers, 497 U.S. 764, 780 (1990). While Keller alleges no Constitutional claim subject to federal habeas relief, the Court will review Keller's claims. 3 full. (2) Mr. Keller's petition (Doc. 1) is DISMISSED. (3) The Clerk of Court is instructed to enter a judgment of dismissal in favor of Respondents and against Petitioner by separate document. (4) A certificate of appealability is DENIED. Dated this '3"'" day of August 2014. Dana L. Christensen, Chief Judge United States District Court 10

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