Jonathon Silversky v. Martin Frink; Attorney General of the State of Montana

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONATHON SILVERSKY,
Petitioner - Appellant,
v.
MARTIN FRINK; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents - Appellees.
No. 10-35317
D.C. No. 1:10-cv-00012-RFC-
CSO
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Submitted December 6, 2012**
Seattle, Washington
Before: TALLMAN and WATFORD, Circuit Judges, and GLEASON, District
Judge.***
FILED
DEC 10 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Montana state prisoner Jonathon Silversky (“Silversky”) appeals the district
court’s summary denial in part and dismissal in part of his 28 U.S.C. § 2254
habeas corpus petition pursuant to the provisions of Rule 4 of the Rules Governing
Section 2254 Cases. Silversky contends that, in pursuing post-conviction relief
before the Montana Supreme Court, he was denied an impartial tribunal in
violation of the due process clause. We have jurisdiction under 28 U.S.C. § 2253
and 28 U.S.C. § 1291, and we affirm the district court’s summary denial in part
and dismissal in part.
Silversky does not allege that the Montana Supreme Court’s decision was
contrary to, or an unreasonable application of, clearly established federal law, or
relied upon an unreasonable determination of the facts in light of the evidence
presented. Instead, Silversky “alleg[es] errors in the state post-conviction review
process [which are] . . . not addressable through habeas corpus proceedings.”
Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989). A federal habeas petition is not
the proper vehicle for addressing the adequacy of process provided to Silversky in
state post-conviction proceedings.
Silversky never presented the operative facts of his judicial bias claim to the
Montana state courts, and the statute of limitations for filing a petition for post-
conviction relief has lapsed. Mont. Code Ann. § 46-21-102. Silversky’s judicial

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bias claim is procedurally barred, and Silversky has not alleged cause and
prejudice to overcome that bar. Silversky has not provided any evidence of cause
by suggesting that “something external to [him], something that cannot fairly be
attributed to him” prevented him from filing a timely petition for post-conviction
relief in state court. Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998)
(quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). Silversky has also not
established prejudice. The Supreme Court has never held that prejudice
automatically ensues when one judge on a multi-judge panel is biased, if that judge
does not cast a decisive vote. See Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 827
(1986).
Silversky’s habeas petition was properly denied pursuant to the summary
procedures in Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4,
district courts are required to summarily dispose of a case if “it plainly appears
from the petition and any attached exhibits that the petitioner is not entitled to
relief in the district court.” This Court has recognized that “Congress envisioned
district courts taking an active role in summarily disposing of facially defective
habeas petitions.” Boyd, 147 F.3d at 1127. Silversky’s judicial bias claim is
procedurally defaulted and is not addressable in a § 2254 petition. The remaining

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claims in Silversky’s petition were found to be successive under 28 U.S.C. §
2244(b), or not cognizable in federal habeas corpus proceedings.
In light of these findings, we AFFIRM the district court’s summary denial
in part and dismissal in part of Silversky’s 28 U.S.C. § 2254 habeas corpus
petition.

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