March 5, 2014
STATE OF MONTANA, Plaintiff and Appellee,
SHAWN HOWARD WELLER, Defendant and Appellant.
Pro se Appellant, Shawn Howard Weller (Weller), has filed a motion requesting that the five-justice panel who signed the Order denying his petition for an out-of-time appeal recuse themselves from participating in deciding this appeal. This Court issued a March 20, 2013 Order that denied Weller's petition for an out-of-time appeal. Or. Denying Out-of-Time Appeal, State v. Weller, No. DA 13-0143 (Mont. Mar. 20, 2013). Weller complains that this Court did not require the State to file a response to the petition and that the five-justice panel "put me down for my bad attitude and conduct when I 'never' brought up that issue." Consequently, he claims that the panel is biased and prejudiced against him. He continues to argue that the 2008 trial transcripts are altered and that, the May 31, 2012 transcripts have been altered. Weller asserts that there is corruption the Montana Judicial Branch has attempted to "cover up" over the past six years.
Weller has also filed an affidavit in support of setting aside the Lewis and Clark County District Court Order denying his Motion to Set Aside Judgment from which he appeals here. The record indicates that Weller filed his opening brief on appeal on February 14, 2014.
Recusal of Justices is addressed in § 3-1-803, MCA, and the Code of Judicial Conduct Rule 2.12 pertaining to self-disqualification. However, Weller has not established that any Justice is biased or prejudiced against him or that recusal is appropriate on any grounds.
There is no justification for setting aside the District Court order from which Weller has appealed. Once the briefing process is completed, this appeal will be classified and decided in due course. The decision in this appeal will resolve any alleged District Court error.
Therefore, IT IS ORDERED the Motion for All Five Judge's (sic) Who Ruled on my Out-of-Time Appeal to Recuse Themselves is DENIED.
IT IS FURTHER ORDERED that the request to set aside the Order on Defendant's Motion to Set Aside Judgment is DENIED.
The Clerk is directed to provide a copy hereof to counsel of record and to Shawn Howard Weller.