MICHAEL W. McDONALD, Petitioner,
STATE OF MONTANA, LYNN GUYER, Warden, Montana State Prison, Respondent.
Petitioner Michael W. McDonald has filed a petition for a
writ of habeas corpus, along with a brief and memorandum of
law, seeking relief from his alleged "void"
judgment and asserting constitutional violations, including
due process of law. He has also filed a "Motion to
Dismiss and Exonerate for the Unlawful Conviction(s) and
Illegal Incarceration for State's Failure to Comply With
Legislative Intent of the State Law Statutes."
initial matter, McDonald's petition, while typewritten,
exceeds seventeen pages. This does not include the four-page
attached motion. His filings exceed the twelve-page or 4, 000
word maximum contained in M. R. App. P. 14(9). "No
separate memorandum of law or brief shall be filed with the
application[.]" M. R. App. P. l4(5)(b)(iii). Motions are
typically discouraged in original proceedings. M. R. App. P.
14(5). We will address his petition even though it is
overlength and does not comport with our rules.
2011, a Missoula County jury found McDonald guilty of two
counts of incest. The Fourth Judicial District Court
sentenced McDonald to the Montana State Prison for two
concurrent terms of fifty years with twenty-five years
suspended. Through counsel, McDonald appealed on the sole
issue of "whether the District Court abused its
discretion in denying McDonald's challenge for cause of a
prospective juror." State v. McDonald, No. DA
12-0111, 2013 MT 74N, ¶ 2, 2013 Mont. LEXIS 89. This
Court affirmed the court's decision. McDonald,
¶¶ 2, 8.
McDonald claims that his incarceration is unlawful from an
illegal conviction and sentence because "[t]he presiding
Judge violated the fundamental rights of the
Petitioner[.]" McDonald reaches this conclusion because
the Judge participated in both his accusatory phase and
sentencing, and he relies on federal law, Montana and United
States Constitutions, and several Montana statutes,
specifically § 46-11-301, and § 46-22-101, MCA. He
requests that this court vacate his criminal case and grant
his immediate release from incarceration.
brings this challenge much too late. McDonald is procedurally
barred from now challenging his 2011 convictions. "The
writ of habeas corpus is not available to attack the validity
of the conviction or sentence of person who has been adjudged
guilty of an offense in a court of record and has exhausted
the remedy of appeal." Section 46-22-101(2), MCA.
McDonald has exhausted his appeal rights. Lott v.
State, 2006 MT 279, ¶ 4, 334 Mont. 270, 150
his claims have no merit. His references to federal law
concerning grand juries do not apply to states.
'"[T]he Fifth Amendment's grand jury requirement
has not been construed to apply to the states.'"
State v. Montgomery, 2015 MT 151, ¶ 9, 379
Mont. 353, 350 P.3d 77 (quoting U.S. v. Allen, 406
F.3d 940, 942 (8th Cir. 2005)). In Montgomery, this
Court held that "Montana statutes offer four methods to
commence a prosecution in this state, one of which is
indictment by a grand jury. Sections 46-11-101(1)-(4),
MCA." Montgomery, ¶ 11. "' [A]
defendant is not entitled to any specific
procedure.'" Montgomery, ¶ 11 (citing
State v. Holler, 2013 MT 199, ¶ 8, 371 Mont.
86, 306 P.3d 338) (internal citation omitted). If the State
commences prosecution by filing an application and an
affidavit that identifies supporting evidence demonstrating
probable cause, the district court has subject matter
jurisdiction to proceed "as stated in Mont. Const, art.
VII, § 4(1) and § 3-5-302(1)(a), MCA[.]"
Montgomery, ¶ 11.
noted in McDonald's Judgment, the State of Montana
commenced McDonald's felony prosecution according to
Montana's Constitution and under its applicable statutory
scheme by filing an application which includes an information
for leave of court and an affidavit supported by evidence.
Section 46-11-201(2), MCA (2001). See also
Montgomery, ¶¶ 9-11; Mont. Const. art. II,
§ 20(1); §§ 46-11-101(3), 46-11-102(1), and
46-10-105(2), MCA. The District Court had subject matter
jurisdiction, and McDonald's judgment is not void.
McDonald cannot demonstrate that he is serving a facially
invalid sentence. Lott, ¶ 22. In light of the
foregoing, we decline to address his motion. M. R. App. P.
14(5). Therefore, IT IS ORDERED that McDonald's Petition
for a Writ of Habeas Corpus is DENIED and DISMISSED.
FURTHER ORDERED that McDonald's Motion to Dismiss and
Exonerate for the Unlawful Conviction(s) and Illegal
Incarceration for State's Failure to Comply With
Legislative Intent of the State Law Statutes is DENIED, as
Clerk is directed to provide a copy of this Order to counsel
of record and ...