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Devlin v. Kirkegard

Supreme Court of Montana

December 3, 2013

CHUCK DEVLIN, Petitioner,
v.
LEROY KIRKEGARD, WARDEN MSP, Respondent.

ORDER

Petitioner Chuck Devlin (Devlin) has filed a petition for a writ of habeas corpus and seeks the appointment of counsel. In Lake County District Court, Devlin was charged with kidnapping and obstruction of justice. The trial commenced on March 26, 2007; however, a mistrial was declared when the State's first witness testified that Devlin was on probation. He was again brought to trial in April of 2007 when he was convicted. The court sentenced him as a persistent felony offender to 50 years in prison for kidnapping and obstruction of a peace officer, with no parole eligibility for 25 years.

In a separate criminal prosecution for bail jumping, after the District Court refused to allow a challenge for cause excusing the first juror, his counsel requested time to consult with Devlin. Devlin changed his plea under a plea agreement, which the court accepted. He was sentenced to a 20-year concurrent term, with 15 years suspended. Devlin appealed both judgments.

In State v. Devlin, 2009 MT 18, 349 Mont. 67, 201 P.3d 791, Devlin challenged the denial of his motion for a change of venue in the bail jumping case. We affirmed the District Court.

In State v. Devlin, 2009 MT 55N, Devin raised several issues, including whether the written judgment should be corrected to indicate that Devlin's conviction for obstructing a peace officer was a misdemeanor, rather than a felony. We affirmed on the other issues, but reversed and remanded for correction of the written judgment to identify the conviction for obstructing a peace officer as a misdemeanor.

Devlin filed a petition for postconviction relief with the District Court, which ordered the State to file a response. The District Court concluded that Devlin's petition failed to comply with § 46-21 -104, MCA, and that the only issue appropriate for postconviction relief was whether counsel was ineffective for failure to individually poll the jury. The court ruled there was no reasonable probability that polling the jury would have changed the outcome of the trial.

On appeal to this Court, Devlin attempted to raise two new claims that were not presented to the District Court. We declined to address those issues and concluded that as the District Court determined, Devlin failed to meet the procedural threshold in § 46-21-104, MCA, and dismissed the petition.

Devlin claims that his conviction resulted from an unreasonable application of laws, that no reasonable jury would have voted to convict him if they had been made aware of the legal mandate to complete the rescue of a temporarily incapacitated person. First, Fourth, Fifth, Eighth and Fourteenth Amendment violations, that he has established his actual innocence, that he has new evidence, prosecutorial misconduct, ineffective assistance of counsel and various other evidentiary issues.

Devlin characterizes himself as a good Samaritan confronted with a duty to rescue the alleged victim, but that Montana is inconsistent its application of the law. In 1986, Devlin claims he was convicted of aggravated assault for throwing a drunk out of his own house into a thunderstorm. On the other hand, in 2007, he was convicted for failing to throw a passed-out drunk woman out of his van into a thunderstorm. He claims he was faced with a dilemma resulting from a good Samaritan's duty to rescue vs. facing a kidnapping charge.

The issues presented here were, or could have been raised in the direct appeal or in the petition for postconviction relief This Court does not consider record-based issues in the context of a habeas corpus proceeding. Devlin is procedurally barred from prosecuting a petition for habeas corpus as he has been "adjudged guilty of an offense in a court of record and has exhausted the remedy of appeal." Section 46-22-101(2), MCA. Consequently, he is not entitled to any relief by way of habeas corpus.

Given the conclusion we reach here, the motion for appointment of counsel is moot.

DIT 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 Chuck Devlin.


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