July 24, 2013
ROBERT ALAN BRATTEN, Petitioner,
MARTIN FRINK, WARDEN, Respondent.
Self-represented Petitioner Robert Alan Bratten (Bratten) pled guilty to an amended charge of Driving Under the Influence of Alcohol or Drugs, Fourth or subsequent offense in the Twenty-First Judicial District Court. He was designated a persistent felony offender and sentenced on September 16, 2011 to 20 years in Montana State Prison.
In the instant petition, Bratten claims that he was deprived of a fair trial before an impartial tribunal in violation of his Sixth and Fourteenth Amendment rights under the U.S. Constitution. Bratten contends that Hon. Jeffrey Langton was required by federal mandate to recuse himself from further participation in the case after granting leave to file the information. Having participated in the accusatory process, Bratten reasons that the District Court lacked subject matter jurisdiction to preside over the ensuing prosecution. As a result, Bratten claims that subsequent proceedings are "void, " for deprivation of his due process and fair trial rights, and constitute a legal nullity that may be raised at any time. Based upon the allegedly void conviction and sentence, Bratten claims that he is incarcerated illegally. As relief, Bratten claims entitlement to a new trial or alternatively, release from confinement.
While Montana statutes allow commencement of a prosecution in district court upon an indictment by a grand jury, a felony prosecution is more commonly begun when a prosecutor files an application and affidavit that identifies supporting evidence demonstrating probable cause to believe that the named defendant has committed an offense. In Montana district courts, the order granting leave to file the information initiates the prosecution. Sections 46-11-101 and -201, MCA.
This process contrasts sharply with proceedings in jurisdictions that rely upon a grand jury indictment to determine whether sufficient evidence exists to charge a potential defendant with a specific criminal act. The grand jury proceedings and criminal prosecution constitute entirely separate processes before different judges.
None of the citations Bratten provided here are instructive or applicable. Consequently, we are obliged to rely upon the statutory constraints of habeas corpus. "The writ of habeas corpus is not available to attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense in a court of record and has exhausted the remedy of appeal." Section 46-22-101(2), MCA. Since Bratten has exhausted his appeal rights, the present petition is vulnerable to this procedural bar. Consequently, Bratten may not obtain relief by way of habeas corpus.
IT IS ORDERED that leave to proceed without paying the filing fee is GRANTED.
IT IS FURTHER ORDERED that the Petition for a Writ of Habeas Corpus is DENIED. The Clerk is directed to provide a copy hereof to counsel of record and to Robert Alan Bratten.