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Brush v. Green

Supreme Court of Montana

August 28, 2013

ROBERT BRUSH, Petitioner,
v.
TOM GREEN, Dawson Correctional Facility, Respondent.

ORDER

Petitioner Robert Bruse (Bruse), pro se, filed a petition for a writ of habeas corpus in which his primary complaint appears to be that his sentence was pronounced in Sanders County District Court on February 5, 2013, but up to the date he sent the petition, he had not received a copy of the written order. As a result, Bruse claims that he has been denied jail credit against his sentence.

Bruse is convinced that he is the victim of a conspiracy whereby the sentencing court, the probation and parole officer, and prosecuting attorney manipulate documents to ensure his continued incarceration.

The Department of Corrections (DOC) has filed a response explaining that it appears the District Court signed a written judgment on February 11, 2013, and the Clerk of District Court filed it the next day. For reasons unknown to the DOC, Prison Records did not receive a copy of the judgment either. The DOC has held Bruse in prison on a "Verification of Commitment, " that indicates he was sentenced to a five-year prison term on one count of Sexual Intercourse Without Consent, with a concurrent five-year term on one count of Incest.

Janet Cox, supervisor of Prison Records, has reviewed Bruse's sentence calculations. She provided an affidavit in which she explains that because Prison Records did not receive a copy of the written judgment, the 109 days of credit for time served had not been applied to Bruse's sentence commencement date. The affidavit indicates that the error will be corrected, which will result in a discharge date of October 18, 2017, and parole eligibility date of January 18, 2014. Based upon this correction, the DOC requests that we dismiss this petition.

It was Bruse's burden here to "make a prima facie showing that an order of the District Court constituted a violation, deprivation, infringement, or denial of his constitutional, statutory or legal rights." Miller v. Eleventh Jud. Dist. Ct., 2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186. The delay in applying credit for time served against Bruse's sentence has not caused him any of these consequences, nor has it resulted in his illegal incarceration.

IT IS ORDERED that the petition for a writ of habeas corpus is DENIED. The Clerk is directed to provide a copy of this Order to counsel of record and to Robert Bruse.


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