July 22, 2014
TRACEY R. GODFREY, Petitioner,
LEROY KIRKEGARD, Respondent.
Self-represented Petitioner Tracey R. Godfrey has filed a petition for writ of mandamus, asserting that "this Court is therefore mandated to release him from custody as required by the writ of habeas corpus." Godfrey is seeking relief from his resentencing in the Twenty-First Judicial District, Ravalli County, following remand from this Court. See Godfrey v. Kirkegard, OP 13-0258 (July 2, 2013).
A copy of the resentencing order provides the following information. The Ravalli County District Court issued a Second Amended Judgment and Commitment on November 14, 2013, as a result of this Court's Order granting in part Godfrey's petition for writ of habeas corpus and its subsequent remand. The reason for the remand was that Godfrey had originally received a sentence of thirty years at Montana State Prison for sexual assault and an additional ten years due to his persistent felony offender (PFO) status. At resentencing, the District Court designated Godfrey as a PFO again and sentenced him "to sixty (60) years placement in a prison designated by the Montana Department of Corrections, effective July 24, 2000, of which thirty (30) years are hereby suspended." Second Amended Judgment and Commitment, p. 5.
Godfrey considers his new sentence illegal and has challenged it in two other original proceedings this year. Relying on the discharge date of his original sentence, he challenges the resentencing because he states that he discharged his "lawful portion of the original judgment[.]" He cites Wagner in support of his claims and that he should be removed from custody because "its operation may be stayed by habeas corpus." In re Wagner, 145 Mont. 101, 104, 399 P.2d 761, 762 (1965).
Godfrey's reliance on Wagner is misplaced. Wagner also provides that authority under a habeas corpus proceeding "cannot be exercised where the custody is lawful." Wagner, 145 Mont, at 104, 399 P.2d at 762. As we have ruled before, Godfrey's sentence is lawful. Godfrey v. Kirkegard, OP 14-0232 and Godfrey v. Kirkegard, OP 14-0306.
Now, Godfrey argues that a writ of mandamus must issue which releases him from confinement. To state a claim for mandamus, a party must show: 1) entitlement to the performance of a clear legal duty by the party against whom the writ is directed; 2) no speedy and adequate legal remedy is available; and 3) the clear legal duty involves the performance of a ministerial act—not a discretionary act. Section 27-26-102, MCA; Smith v. Missoula Co., 1999 MT 330, ¶ 28, 297 Mont. 368, 992 P.2d 834. Godfrey has not stated a claim for mandamus. He has not demonstrated that he is entitled to the performance of a clear legal duty or provided a ministerial act from which he seeks relief. Godfrey's release would be a discretionary act, which is not appropriate for a writ of mandamus.
Further, this Court cannot provide the relief Godfrey requests in his writ. We cannot release a person from custody without the appropriate pleadings. A writ of mandamus is not an appropriate pleading for this Court to consider his request. The District Court has rendered a final decision in this matter, and Godfrey has a direct appeal for the above-mentioned District Court judgment, which will be considered in due course. See Godfrey v. State, DA 14-0008. Accordingly,
IT IS ORDERED that the petition for writ of mandamus is DENIED.