Appearing pro se, William Larry Weaver (Weaver) has filed a petition for a writ of habeas corpus. Weaver was convicted in February of 1998 in the Fourth Judicial District Court of deliberate homicide. He is serving a life sentence, with a consecutive 10-year term for use of a weapon.
Weaver alleges Fourteenth Amendment and Montana due process violations as well as denial of his right to know under Art. II, Sec. 9 of the Montana Constitution. He claims that, after a Montana arrest warrant was issued, Missoula County Detectives illegally kidnapped him from a Georgia prison. He claims he was afforded no extradition hearing pursuant to § 46-30-401, MCA, and that he did not waive extradition under § 46-30-229, MCA. He also asserts that he has newly discovered evidence, including Exhibit "A" attached to the petition, which is a letter from the Missoula County Attorney to Governor Marc Racicot dated October 3, 1997. The letter references a "special waiver permission request form." Weaver argues that he is entitled to a certified copy of this form but that "no one has a copy of this."
Because he believes Montana did not legally gain custody over him, Weaver argues that he was denied a fair trial. He also contends that no Governor's warrant was issued and unless a document can be produced establishing that Georgia authorities granted the State of Montana legal authority to prosecute him, he is entitled to a new trial.
Under some circumstances, habeas corpus may afford a remedy for a person arrested upon an extradition warrant. Section 46-30-217, MCA, allows a prisoner and or his counsel to test the legality of the prisoner's arrest through a habeas corpus proceeding, providing:
If the prisoner or the prisoner's counsel states that the prisoner and counsel desire to test the legality of the prisoner's arrest, the judge of the court of record shall fix a reasonable time to be allowed the prisoner within which to apply for a writ of habeas corpus. When the writ is applied for, notice of the writ and of the time and place of hearing on the writ must be given to the prosecuting officer of the county in which the arrest was made and in which the accused is in custody and to the agent of the demanding state.
By its terms, the above provision permits a prisoner to challenge the legality of arrest under an extradition warrant by way of habeas corpus within a reasonable time. It does not permit habeas corpus as a post-extradition vehicle to challenge the extradition long after it has been effectuated. Had Weaver or his counsel timely sought to test the legality of his arrest and notified the court of his intention, the statute's provisions for setting a schedule, followed by notice of the hearing time and date to the prosecuting officer and the demanding state, would have been triggered, and the process could have moved forward. Weaver's claim has long passed.
To the extent that Weaver contests the legality of his conviction or sentence, he is procedurally barred from doing so. He may not attack "the validity of the conviction or sentence" since 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.
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 ...