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Richard v. Birkebile

Supreme Court of Montana

March 31, 2015



Self-represented Petitioner Cyril Kenneth Richard has filed a petition for a writ of habeas corpus, seeking relief "to correct my unlawful sentence." In his petition, Richard provides that he was charged originally with deliberate homicide and two counts of tampering with physical evidence in the Fourth Judicial District, Missoula County, on February 21, 2008. He states that he pleaded guilty to the charges, and that he received a forty-year sentence.

From a review of electronic records, Richard received a twenty-year term for felony negligent homicide and two ten-year, suspended terms for each count of tampering with or fabricating physical evidence, all to run consecutive to each other. He did not appeal the District Court's judgment or conviction and only filed a petition for postconviction relief with this Court in 2012. Richard v. State, 2012 MT 248N, 368 Mont. 412, 2012 Mont. LEXIS 320. We affirmed the District Court's order dismissing his petition for postconviction relief Richard, ¶ 2.

Richard complains of "multiple constitutional violations" in the underlying criminal case. He asserts that he was "legally justified in defending himself under the circumstances . .., " and that "his statements to law enforcement were involuntary ...." He contends that these violations resulted in a cruel and unusual punishment of his forty-year sentence. He requests that this Court modify his conviction to include only one count of tampering with the evidence, to suppress his statements to detectives, and to reduce his sentence. Along with his challenges to his sentence, Richard claims that his "petition brings forth a claim of actual innocence." (Emphasis in original.)

Richard's claims do not constitute a viable petition for habeas relief. Under Montana's statutory scheme for reviewing claims by convicted offenders, habeas corpus is not used to collaterally review the conviction or sentence of a person who has been adjudged guilty of a crime and has exhausted the remedy of appeal. Section 46-22-101(2), MCA. Rather, a petition for postconviction relief is the method by which an offender who has been found guilty may attack his conviction or sentence. Section 46-21-101(1), MCA. All of Richard's grounds for relief raise claims that could have been, but were not, presented on direct appeal of his conviction or in a petition for postconviction relief.

Further, by pleading guilty, Richard waived all nonjurisdictional defects, including any constitutional violations that predated the plea. State v. Pavey, 2010 MT 104, ¶11, 356 Mont. 248, 231 P.3d 1104, citing State v. Violette, 2009 MT 19, ¶16, 349 Mont. 81, 201 P.3d 804. This bars him procedurally from relief by writ of habeas corpus. Section 46-22-101(2), MCA. Richard cannot relitigate these claims in a habeas corpus proceeding because he is procedurally and time barred from challenging his 2010 conviction and has not demonstrated a facially invalid sentence. Section 46-22-101(2), MCA; Lott v. State, 2006 MT 279, ¶¶ 4, 19, 334 Mont. 270, 150 P.3d337.

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 Cyril Kenneth Richard, personally.

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