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Foster v. State

Supreme Court of Montana

November 19, 2013

JOSHUA LEE FOSTER, Petitioner,
v.
STATE OF MONTANA, Respondent.

ORDER

Petitioner Joshua Lee Foster (Foster) has filed a petition for a writ of coram nobis in which he seeks relief from the violent offender registration requirement in his judgment and conviction. Foster was convicted in 2009 upon a guilty plea of assault on a peace officer in Silver Bow County District Court and committed to the Montana Department of Corrections for ten years, with five suspended. Foster remains in prison while serving the unsuspended portion of his sentence.

Foster fashions his petition as a "Petition for Writ of Coram Nobis under § 46-21-101, MCA." Foster contends that the District Court illegally imposed a violent offender registration requirement in its sentence. Foster points out that the District Court's judgment failed to cite which of the four subparts of § 45-5-210(1), MCA, that he violated. He argues that Montana law does not consider subsection (1)(a), "bodily injury to a peace officer or judicial officer, " to constitute a violent offense that would trigger the registration requirement pursuant to § 46-23-502(13), MCA. He further contends that the facts of his case point only to a possible conviction under subsection (1)(a).

Foster filed no appeal. He filed no petition for sentence review. His sentence became final in 2009. The one-year time bar on a petition for post-conviction relief would have run sometime in 2010.

Foster argues that the one-year time limit in § 46-21-102, MCA, serves as no bar to his common law writ of coram nobis. He cites the fact that this Court previously determined in Lott v. State, 2006 MT 279, 334 Mont. 270, 150 P.3d 337, that the statute's one-year time limit did not suspend the common law writ of habeas corpus. We note first that this Court abolished various bills and writs, including the writ of coram nobis, effective October 1, 2011, when we revised the Montana Rules of Civil Procedure. M. R. Civ. P. 60(e).

Even if we overlooked the abolishment of the writ of coram nobis in Montana, Foster has failed to provide any basis to disregard the one-year time bar in § 46-21 -102, MCA. We allowed a petitioner to assert a right to toll the one-year time bar on equitable grounds in Davis v. State, 2008 MT 226, ¶ 23, 344 Mont. 300, 187 P.3d 654. The petitioner had to demonstrate that the failure to toll on equitable grounds would work '"a clear miscarriage of justice, one so obvious'" that the imposition of the time bar would compromise the integrity of the judicial process. Davis, ¶ 25, citing State v. Redcrow, 1999 MT 95, ¶ 34, 294 Mont. 252, 980 P.2d 622. Federal courts likewise have required a party asserting relief pursuant to a writ of coram nobis to allege valid reasons for not attacking the conviction earlier. United States v. McClelland, 941 F.2d 999, 1002 (9th Cir. 1991). Foster has failed to allege any valid reason to justify the delay in his attack on his sentence.

Accordingly, IT IS ORDERED that the Petition for a Writ of Coram Nobis is DENIED.


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