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Ford v. Kirkegard

Supreme Court of Montana

November 19, 2013

EUGENE FORD, Petitioner,
v.
LEROY KIRKEGARD, Warden of State Prison, Respondent.

ORDER

Eugene Ford (Ford) has filed a petition for a writ of habeas corpus in which he seeks a new trial. Ford was convicted of deliberate homicide in the Eighth Judicial District Court, Cascade County, on November 12, 1999. The court imposed a life sentence without parole eligibility.

Ford advances claims of relief that relate to trial procedure. He asserts that: 1) evidence was collected illegally prior to issuance of a search warrant; 2) Ford was arraigned without his counsel's presence; 3) the court denied judicial notice during a status hearing; 4) three of the jurors knew or were related to four State witnesses; 5) the court failed to rule upon a motion for a change of venue; 6) the court failed to rule upon a motion in limine; 7) during trial, a hearing was conducted outside of Ford's presence; 8) the court erroneously allowed the Judge to file a late motion rescheduling a hearing for return of a search warrant; 9) the court directed the jury to "see if you can't reach a verdict within an hour;" 10) the Judge failed to have the final jury instructions recorded by a court reporter; and 11) the Judge failed to produce to Ford the jury instructions that were given to the jury. Ford also raised ineffective assistance of counsel (IAC) issues. Ford supports his petition with a substantial number of exhibits.

Ford appealed from his convictions and thereby exhausted his appeal remedy. State v. Ford, 2001 MT 230, 306 Mont. 517, 39 P.3d 108 (Ford I). The only issue raised upon appeal was gender discrimination injury selection. More specifically, whether the prosecution used peremptory challenges during voir dire to strike women from the jury panel. Ford objected after the venire was dismissed and outside the jury's presence. The District Court noted the objection, but overruled it without explanation. We concluded that Ford's objection to the State's use of peremptory challenges was untimely because he failed to make it until after the jury was empaneled and sworn and the venire was dismissed. We deemed the objection waived, declined to address the merits of the claim, and affirmed the District Court. Ford I, ¶10

Ford also file a petition for postconviction relief, where his counsel moved for leave to withdraw as counsel on the basis she could not find any non-frivolous issues to support the petition. Ford v. State, 2005 MT 151, 327 Mont. 378, 114 P.3d 244 (FordII). Ford asserted that the District Court erred in failing to conduct an evidentiary hearing and that he was provided ineffective assistance of counsel on various grounds. We affirmed the District Court, concluding that the court properly had denied Ford's petition without holding an evidentiary hearing. Ford 11, ¶ 36.

Ford availed himself of potential remedies via both a direct appeal and a petition for postconviction relief. Section 46-22-101(2), MCA, provides that a person who has been "adjudged guilty of an offense in a court of record and has exhausted the remedy of appeal" is barred from a remedy by way of habeas corpus. The issues that Ford raises here either were, or could have been, raised in the direct appeal or postconviction proceeding. Ford has exhausted his right to petition for postconviction relief by filing Ford II, and he is also time-barred from filing a successive petition. Section 46-21-105, MCA.

IT IS 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 Eugene Ford.


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