March 31, 2015
MICHAEL L. LANDE, Petitioner,
DEPARTMENT OF CORRECTIONS, MIKE BATISTA, Director and LEROY KIRKEGARD, Warden, Montana State Prison, Respondent.
Self-represented Petitioner Michael L. Lande has filed a writ of habeas corpus, seeking relief from his conviction of felony partner family member assault (PFMA) under § 45-6-206, MCA. We have amended the caption to include the names of the Director of the Department of Corrections (DOC) and the Warden at the Montana State Prison. M. R. App. P. 2.
On January 24, 2014, Lande pleaded guilty to the PFMA charge in the Twenty-Second Judicial District Court, Stillwater County. He received a five-year, suspended sentence to the Montana DOC in May 2014. The Stillwater County Attorney filed a petition to revoke after a report of violation was received in August 2014. At the November 2014 adjudicatory hearing, Lande admitted to violating the State's probation and parole rules. Lande did not appear for the January 2015 dispositional hearing, and the District Court issued an arrest warrant. After Lande's arrest, the District Court held a hearing and revoked Lande's suspended sentence. The court sentenced Lande to a five-year term, no time suspended, to the DOC.
In an argument that is difficult to follow, Lande argues that because the Montana Legislature revised the PFMA statutes in 2013, and specifically § 45-5-206(2)(b), MCA, so that the statute now applies to both homosexual and heterosexual partners, any convictions imposed under the prior version of the statute are constitutionally tainted. We reject Lande's contentions that his prior convictions are invalid and that habeas relief is available to him under these circumstances.
The purpose of a petition for habeas corpus is to inquire into the cause of imprisonment or restraint. Section 46-22-101(1), MCA. A writ of habeas corpus is not available to attack the sentence of a person who has been adjudged guilty of an offense and has failed to appeal or has exhausted the remedy of appeal. Section 46-22-101(2), MCA; Lott v. State, 2006 MT 279, ¶¶ 4, 19, 334 Mont. 270, 150 P.3d 337. Nor is habeas available to challenge the validity of the statute under which a person is convicted. Moreover, habeas relief "is not available to attack the legality of an order revoking a suspended or deferred sentence." Section 46-22-101(2), MCA. Because Lande is challenging the revocation of his suspended sentence, this bar precludes the relief that Lande seeks here. Lande is simply not incarcerated illegally.
IT IS THEREFORE ORDERED that the petition for a writ of habeas corpus is DENIED.
The Clerk is directed to provide a copy of this Order to counsel of record and to Michael E. Lande, personally.