Ellison v. Salmonsen, CV 21-26-BLG-DLC-TJC

CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)
Writing for the CourtTimothy J. Cavan United States Magistrate Judge
Docket NumberCV 21-26-BLG-DLC-TJC
Decision Date02 March 2022




No. CV 21-26-BLG-DLC-TJC

United States District Court, D. Montana, Billings Division

March 2, 2022


Timothy J. Cavan United States Magistrate Judge

This case comes before the Court on Petitioner Lionel Scott Ellison's (“Ellison”) application for writ of habeas corpus under 28 U.S.C. § 2254. Ellison is a state prisoner appearing pro se.

Ellison has also filed two Motions for Hearing, (Docs. 4 &10); two Motions to Change Venue (Docs. 6 & 30); a Motion for Order, (Doc. 15); two Motions for Recusal (Docs. 17 & 30); a Motion to Appoint Counsel (Doc. 21); a Motion for Summary Judgment, (Doc. 26); and a Motion for Relief from Judgment (Doc. 33.) Each will be addressed in turn.

I. 28 U.S.C. § 2254 Petition

The Court is required to screen all actions brought by prisoners who seek relief. 28 U.S.C. § 1915(a). The Court must dismiss a habeas petition or portion


thereof if the prisoner raises claims that are legally frivolous or fails to state a basis upon which relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). As explained below, Ellison's claims are either lacking in merit or they do not survive deferential review under 28 U.S.C. § 2254(d). Accordingly, Ellison's petition should be denied and dismissed.

i. Background

This Court is very familiar with Ellison. He first filed a petition under 28 U.S.C. § 2254, challenging his 2015 Arson conviction. That matter was dismissed without prejudice as unexhausted.[1]

Ellison again sought to challenge his 2015 Arson conviction. That matter was also dismissed as unexhausted, because Ellison had a direct appeal pending simultaneously with the Montana Supreme Court.[2]

Ellison next sought to challenge a 2009 Arson conviction. He believed the two arson matters were connected and sought to join the proceedings, alleging both were based on a “continuous course of wrongful conduct” on the part of Yellowstone County officials, in particular Detective Frank Fritz (“Fritz”). According to Ellison, the series of events began with a 2007 arson charge and continued with an arson conviction in 2009, together with two abductions which


occurred over the course of the criminal proceedings, and additional events that Ellison posits ultimately led to a 2014 arson charge and conviction in 2015 of Tampering with or Fabricating Evidence and Impersonation of a Public Servant.[3] The matter was dismissed with prejudice as untimely.[4]

Prior to the instant petition, Ellison made one additional challenge to his 2015 arson convicted which was also dismissed as unexhausted.[5] Ellison has also filed four §1983 civil complaints in this Court.[6]

In order to understand the conspiracy that Ellison believes to be at work against him, it is helpful to have an appreciation of the timeline of his state criminal and civil proceedings.

ii. Timeline

May 7, 2007- A vehicle Ellison is driving, belonging to his ex-girlfriend, catches fire. Ellison is charged with Arson in Yellowstone County Cause No. DC 07-0907.[7]

April 1, 2008- Ellison pleads guilty via Alford to Arson. The sentencing is scheduled for May 29, 2008.

May 19, 2008- The Ellisons (Ellison and his parents, Claude and Marlene)


individually and on behalf of WallPro, Inc., their family business, file a lawsuit against LCG Pence, LLC, and Lonnie Higgins, among others, in Gallatin County District Court. The suit alleges various tort causes of action based on work WallPro had been hired by Defendants to do on an assisted living facility in Bozeman, MT.[8]

May 28, 2008- The day prior sentencing on the arson charge, Ellison claims he is attacked and abducted from the family business and thrown in the Yellowstone River. He is found clinging to the banks of the Yellowstone River near Lockwood, Montana. Ellison believes the perpetrator is Keith Hariss, who was allegedly acting at the behest of Lonnie Higgins, a defendant in the Wall Pro lawsuit. The sentencing in the arson matter is delayed as a result of the purported abduction.

June 16, 2008- The Ellisons move to dismiss the civil suit against LCG Pence, LLC and Lonnie Higgins, without prejudice. The matter is dismissed.[9] But it appears various civil business matters remain ongoing.[10]

June 23, 2008- Videotaped sworn statements are taken of Justin Stevens and Aaron Stevens, two admitted felons, who claim they believe Keith Hariss may have had something to do with Ellison being abducted and thrown in the river a month earlier.[11]

July 28, 2008- Ellison seeks to withdraw his Alford plea entered in the Arson matter.

May 26, 2009- Following the denial of his motion to withdraw his Alford plea to Arson, Ellison is sentenced to 5-years in the Montana State Prison (“MSP”), with all the time suspended.


Sept. 19, 2009- Ellison is charged with Partner Family Member Assault (“PFMA”) and associated offenses in Yellowstone County.

Sept.-Nov. 2009 Detective Fritz is assigned to investigate a Tampering/Violation of Order of Protection charge that arose in conjunction with PFMA. Fritz applies for search warrants in conjunction with his investigation. Fritz arrests Ellison and serves a search warrant at the home of Claude and Marlene, seizing three computers.[12] Ellison is ultimately convicted of PFMA and violating an Order of Protection.[13] The victim of the offenses was Ellison's then-wife, Rhonda Quarters.

July 20, 2010- One day prior to criminal sentencing proceedings in Yellowstone County, Ellison is discovered off the interstate in Park County, Montana, with his limbs bound and a plastic bag over his head. He claims he was kidnapped from Billings and transported by a Mexican man and a black man; notably, there is no mention of Fritz.[14] The Yellowstone County criminal proceedings are delayed as a result of the purported abduction.

Aug. 30, 2010- Claude and Marlene file a civil suit against Yellowstone County Sheriff's Office and Fritz, individually, alleging intimidation and infliction of emotional distress in conjunction with the investigation and arrest of Ellison in the criminal PFMA proceedings, Cause No. DV-10-1500.[15]

Dec. 20, 2010- Ellison is charged with Tampering with Evidence as a result of the July 20, 2010, “abduction.”[16]

Oct. 7, 2011- Claude and Marlene's civil suit against Yellowstone County


and Det. Fritz was never served and is dismissed without prejudice for Failure to Prosecute.[17]

March 12, 2012- Ellison is admitted to the Montana State Hospital (“MSH”) for an Evaluation in conjunction with the Park County Tampering with Evidence/abduction matter.[18]

May 23, 2012- MSH issues its report finding Ellison fit to proceed.[19] It was noted that Ellison believed his abductors were “likely in the employ of a company he and his family are suing.”[20] There is no mention of Fritz being involved in the abduction.

March 14, 2013- A fire was reported at the Ellison's family home at 4:40 a.m. Marlene states that the doors are tied shut from the outside. Law enforcement responds and the matter is placed under investigation. A pocketknife with the name “Fritz” scribbled on it is found in the yard. Ellison had a revocation hearing scheduled at 9:00 a.m. that same morning.[21]

Of note, at this same day and time, Fritz is part of a team executing a search warrant at a homicide scene on the other side of town. Briefing began at 2:30 a.m. and Fritz left briefing


between 3:30- 4:00 a.m. He was then on the scene for many hours. Fritz was with Detective Shane Bancroft (“Bancroft”) the entire time photographing the scene.[22] Fritz believes he was on scene until 1:00 p.m.[23]

May 23, 2013- Ellison's sentence in DC-07-0907, the vehicle Arson case, is revoked; he is committed to MSP.

May 29, 2013- The State moves for dismissal of the Park County Tampering case; the matter is dismissed.[24]

Dec. 20, 2013- The Montana Supreme Court affirms the denial of Ellison's postconviction petition challenging the car arson.[25]

Jan. 28, 2014- Park County Attorney Brett Linneweber (“Linneweber”) submits his letter of resignation to the Park County Commissioners because he accepted a senior deputy county attorney position in Yellowstone County.[26]

Feb. 24, 2014- Effective date of Linneweber's resignation from Park County.[27]

July 31, 2014- Ellison is arrested for Arson and Tampering with Evidence in conjunction with the fire that occurred the prior year at the Ellison family home. Ellison is placed in custody at the Yellowstone County Detention Center (“YCDC”).


August 19, 2014- Marlene purchases a cell phone with the number (406) 7948821, in preparation for Ellison being released on bond. The phone is activated the same day.[28]

Sept. 4, 2014- Ellison is released on bond from the YCDC.[29]

Sept. 29, 2014- Sue Vinton receives call at Vinton Construction, Ellison's employer, from a caller purporting to be Fritz. The caller instructs Vinton not to hire Ellison. The call was made from (406) 794-8821.[30]

October 7, 2014- Summer Frickle at Labor Ready gets a call from an individual purporting to be Fritz; the caller discourages the business from employing Ellison. This call also was made from (406) 7948821.[31]

March 13, 2015- An Amended Information is filed adding a charge against Ellison for Impersonating a Public Servant as a result of the phone calls made in which the caller identified himself as Detective Fritz.

Sept. 21, 2015- Ellison's jury trial begins.

Sept. 24, 2015- Jury returns its verdict. Ellison is acquitted of Arson. He is found guilty of two counts of Tampering with or Fabricating Physical Evidence and one count of Impersonation of a Public Servant.

iii. State Court Appellate/Collateral Proceedings

Following his 2015 jury trial, Ellison timely filed a direct appeal. The Montana...

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