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Keene v. Montana State Supreme Court

Supreme Court of Montana

November 20, 2018

CARL KEENE, Petitioner,
v.
MONTANA STATE SUPREME COURT, TIM FOX, ATTORNEY GENERAL, and RAY DAYTON, DISTRICT JUDGE, Respondent.

          ORDER

         Self-represented 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."

         On July 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.

         This 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 criminal case.

         The 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 2005 conviction.

Keene v. Fletcher, No. OP 18-0001, Order, (Mont. Jan. 16, 2018) (Keene III).

         Addressing 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. 2, 2018).

         Keene 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.

         We 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.

         The 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 ...


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