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State v. Fourstar

Supreme Court of Montana

October 30, 2013

STATE OF MONTANA, Plaintiff and Appellee,
v.
VICTOR CHARLES FOURSTAR, JR., Defendant and Appellant. VICTOR C. FOURSTAR, JR., Plaintiff and Appellant,
v.
MARY L.ZEMYAN, Defendant and Appellee,

ORDER

We have consolidated these two causes in which Victor Charles Fourstar, Jr. (Fourstar) seeks out-of-time appeals.

This Court reminds Fourstar that in Fourstar v. Zemyan, 12-0520, we issued an Order on September 18, 2012, in which we stated as follows:

IT IS FURTHER ORDERED that henceforth, prior to filing any original petition or appeal with this Court, Fourstar is directed to file a motion for leave to file the petition or notice of appeal. The motion for leave must be sworn under oath, not exceed three pages in length, and make a preliminary showing that: 1) the petition has merit and meets the criteria to state a prima facie case under M. R. App. P. 14(5), or 2) the appeal is not frivolous. Only when this Court has reviewed the motion and issued an order granting leave to file may the Clerk of this Court file the petition or appeal. Any other notice of appeal or petition Fourstar seeks to file shall be rejected and the Clerk shall inform Fourstar accordingly.

Or. Denying Out-of Time Appeal, Fourstar v. Zemyan, No. 12-0520 (Mont. Sept. 18, 2012). Fourstar has completely ignored this Order in filing the two instant petitions for out-of-time appeal. Moreover, we note that Fourstar's sentence in Montana expired more than 10 years ago and he is serving a federal sentence.

Both petitions seek to litigate issues of federal law over which this Court lacks any jurisdiction. Further, M. R. App. P. 4(6) provides for an out-of-time appeal only "in the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice." Fourstar has wholly failed to satisfy this requisite. His petition must therefore be denied.

Finally, we again direct the Clerk to refuse to file any documents with this Court from Victor Fourstar, Jr. unless he has made the preliminary showing in the manner set forth above.

IT IS ORDERED that these consolidated petitions for an out-of-time appeal are DENIED.

IT IS FURTHER ORDERED that this Court will not consider a petition for rehearing or any other effort to seek revival or reconsideration of these petitions. Should Fourstar attempt to file any other documents in either case, the Clerk is directed to return them to Fourstar, unfiled.

The Clerk is directed to provide a copy hereof to counsel of record and to Victor C. Fourstar, Jr.


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