Petitioner Carl Keene has filed and served a "Request
for New Plain-Error Review" pursuant to U.S. v.
Marcus, 560 U.S. 258, 130 S.Ct. 2159 (2010) and contends
that his right to appeal has been preserved as noted in the
attached copy of Butte-Silver Bow County District Court's
docket for Cause No. DC-04-121. He requests reconsideration
of this Court's previous decision where we denied his
petition for a writ of mandamus. Keene v. Second Judicial
Dist. Ct, No. OP 18-0479, Order (Mont. Aug. 21, 2018).
He states that he is introducing evidence of a wrongful
conviction and wants to proceed on his right to appeal. He
also asks that this Court "place [him] back at the
Montana [S]tate Hospital."
5, 2005, Keene pleaded guilty to mitigated deliberate
homicide in the Second Judicial District Court, Butte-Silver
Bow County. The District Court determined that Keene was
suffering from a mental disease or defect during the
commission of the crime, and imposed a thirty-year sentence
to the Department of Public Health and Human Services
(DPHHS). Keene did not appeal. Following a hearing of
DPHHS's motion to transfer, Keene was transferred from
Montana State Hospital to Montana State Prison in March 2010.
Court cannot provide any of the requested relief to Keene.
Keene is not entitled to any review, whether plain error or
otherwise, and he has no right to appeal. The law that Keene
references is of no assistance. The United States Supreme
Court's decision is inapplicable here because the high
court reversed a circuit court's ruling of plain error
review under the federal rules of criminal procedure.
Marcus, 560 U.S. at 262, 130 S.Ct. at 2164. Rule 60
of the Montana Rules of Civil Procedure does not apply in a
time for any review or appeal has run. We have explained all
of this before to Keene. When he sought habeas corpus relief
in 2009, we stated that "individuals such as Keene-who
[have] been adjudged guilty of an offense and failed to
appeal-are barred from attacking the validity of a sentence
under the current habeas corpus statute." Keene v.
Montana State Hospital, No. OP 09-0491, Order (Mont.
Oct. 7, 2009) (Keene I). In 2015, we stated:
"He cannot attack his 2005 sentence because he was found
guilty of this offense in a court of record, and has
exhausted his appeal remedy by failing to file a timely
appeal." Keene v. Kirkegard, No. OP 15-0531,
Order (Mont. Sept. 15, 2015) (Keene II).
Earlier this year, we pointed out that Keene has no remedy
with this Court.
Keene cannot use the remedy of habeas corpus to reach a
different outcome in his case some twelve years later. As we
explained before, "Keene waived any challenges to his
conviction because he pleaded guilty in 2005." Keene
v. Kirkegard, No. OP 15-0531, Or. (Mont. Sept. 15,
2015). ... Keene was found guilty of this offense in a court
of record and has exhausted his appeal remedy by failing to
file a timely appeal. Section 46-22-101(2), MCA; Lott v.
State, 2006 MT 279, ¶¶ 4, 19, 334 Mont. 270,
150 P.3d 337. He is barred procedurally from attacking his
Keene v. Fletcher, No. OP 18-0001, Order, (Mont.
Jan. 16, 2018) (Keene III).
his August 2018 petition for a writ of mandamus of the Second
Judicial District Court, we pointed out concerning
Keene's pending motions there, "Keene has not
demonstrated that a clear legal duty exists for which the
presiding judge is obligated to act." Keene v.
Second Judicial Dist. Ct., No. OP 18-0479, Order (Mont.
Aug. 21, 2018) (Keene IV). We reiterated that Keene
could expect little if any relief through District Court or
this Court. "Moreover, thirteen years after his
conviction, Keene is limited procedurally and substantively
to seek redress through a District Court." Keene
IV. Any reconsideration of this Order has been done as
stated in a denial of his petition for rehearing. Keene
v. Second Judicial Dist. Ct, No. OP 18-0479, Order (Oct.
has no preserved right of appeal; the District Court's
docket reveals a "Writ of Appeal Sentence" filed
there on January 12, 2006. Keene did not pursue a timely
appeal within sixty days of the final judgment. M. R. App. P.
4(5)(b)(i). Any right to appeal expired on November 26, 2005.
Keene is also time and procedurally barred for any claim of
postconviction relief. Keene II; Keene IV. This
Court cannot place him at the State Hospital.
caution that if Keene continues to file pleadings concerning
his 2005 conviction and sentence, attempting to invoke the
original jurisdiction of this Court, we will instruct the
Clerk of the Supreme Court that future pleadings are not to
be accepted for filing absent a show of cause. Accordingly,
IT IS ORDERED that Keene's Request for Plain-Error Review
and other Relief is DENIED and DISMISSED.
Clerk is directed to provide a copy of this Order to the Hon.
Ray Dayton, Third Judicial District Court; to Tom Powers,
Clerk of Court, Silver Bow County; to ...