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State v. Leek

Supreme Court of Montana

October 15, 2013

STATE OF MONTANA, Plaintiff and Appellee,
v.
PETER NORMAN LEEK, Defendant and Appellant.

ORDER

Self-represented Appellant Peter Norman Leek moves to proceed on appeal without paying the filing fee and seeks an extension of time to file his opening brief. Good cause appearing,

IT IS ORDERED that leave to proceed without paying the filing fee is GRANTED.

In reviewing the file, we observe that Leek is seeking appellate review of a June 6, 2013 Memorandum and Order of the Third Judicial District Court denying his petition for a writ of habeas corpus.

There is no right to appeal from a district court order denying a petition for a writ of habeas corpus. For this Court to consider whether habeas corpus is appropriate, a petitioner seeking habeas corpus must file an original petition with the Clerk of this Court. A district court's denial of the writ is not res judicata, and does not divest this Court of jurisdiction to grant a subsequent petition. Thomas v. Doe, 2011 MT 283, ¶¶ 5-6, 362 Mont. 454, 266 P.3d 1255.

Consequently, we are moved sua sponte to dismiss this appeal.

IT IS ORDERED that this appeal is DISMISSED, without prejudice to Leek's right to file an original petition for habeas corpus relief.

Having dismissed this appeal today, it is not necessary to entertain the motion for an extension of time to file an opening brief

The Clerk is directed to provide a copy hereof to counsel of record and to Peter Norman Leek.


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