November 20, 2013
JAMES MICHAEL STEWART, Petitioner,
HONORABLE KURT KRUEGER and SHERIFF ED LESTER, Respondent.
James Michael Stewart (Stewart) seeks a writ of habeas corpus. He is presently detained in the Butte Silver Bow Detention Center on a charge of partner or family member assault, third offense. We have amended the caption to name Sheriff Ed Lester, who has custody of Stewart, as a Respondent as required in § 46-22-20l(l)(c), MCA.
Stewart's primary concern appears to be his bail, which was set at $40, 000. He complains that his counsel, Walt Hennessy, has not sought a bond reduction and does not keep him informed on the status of his defense. He also claims that his counsel is not competent and requests a change of venue.
We secured a copy of the docket for this pending matter in DC-13-107 which indicates that through counsel, Stewart moved for his release on his own recognizance on October 25, 2013. A minute entry from proceedings on November 14, 2013, establishes that Stewart was present with counsel at the time scheduled for hearing on the motion and the District Court noted that Stewart had filed a petition for a writ of habeas corpus with this Court. Consequently, the court concluded it lacked jurisdiction over the matter and continued the hearing without date.
It is clear that Stewart is incarcerated on a bailable offense. He has a presumptive right to be released on a reasonable bail or on his own recognizance. Stewart has the burden in a habeas corpus proceeding, however, to convince this Court that the writ should be issued. This burden includes presenting to this Court a sufficient record "to make a prima facie showing that the order of the District Court constituted a violation, deprivation, infringement or denial of his constitutional, statutory or legal rights." Miller v. State, 2007 MT 58, 336 Mont. 207, 154 P.3d 1186, citing Petition of Dyer, 154, Mont. 499, 500, 463 P.2d 895, 896 (1969); Petition ofTooker, 148 Mont. 69, 73, 417 P.2d 87, 89 (1966); In re Hart, 178 Mont. 235, 249-50, 583 P.2d 411, 418-19 (1978).
By filing this petition with this Court, Stewart presented the District Court with a jurisdictional barrier to considering reduction of his bail or release on his own recognizance. Moreover, he has not presented this Court with a sufficient record or a showing that the District Court violated any of his rights.
We must deny this petition to allow the District Court to take evidence and determine whether Stewart presents a flight risk and whether there are conditions that can be imposed on him that will adequately ensure the protection of any person or the community. Sections 46-9-106, 108, 111, MCA.
Further, Stewart is represented by counsel who has sought Stewarts release on his own recognizance. Consequently, it appears that Stewart has overstated his complaints regarding communication with his counsel and counsel's representation. He has also filed a pro se petition with this Court. Only counsel should file motions and papers with the Courts on Stewart's behalf. Courts may properly refuse to accept pro se pleadings from defendants who are represented by counsel. State v. Samples, 2005 MT 210, ¶ 15, 328 Mont. 242, 119 P.3d 1191.
The other relief Stewart has requested is outside the scope of habeas corpus. Section 46-22-101, MCA.
IT IS ORDERED that this petition for a writ of habeas corpus is DENIED, without prejudice.
IT IS FURTHER ORDERED that this matter is remanded to the Second Judicial District Court for proceedings consistent with this Order.
The Clerk is directed to provide a copy hereof to counsel of record, to Hon. Kurt Krueger, Presiding for the Second Judicial District Court, Sheriff Ed Lester and to James Michael Stewart.