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Smith v. McTighe

Supreme Court of Montana

September 17, 2019

BRIAN D. SMITH, Petitioner,
v.
PATRICK McTIGHE, Warden, Respondent.

          ORDER

         Brian D. Smith has filed a petition for a writ of habeas corpus, arguing that he is unlawfully imprisoned. Smith challenges his plea of guilty and the accompanying waiver of rights as constitutionally invalid. He claims that "a breach of agreement in § 46-8-103, MCA, result[ed] in a constitutionally invalid judgment, conviction and incarceration.

         As a threshold matter, Smith's petition exceeds the limitations on length of petitions that may be filed with this Court. While typewritten, his pleading exceeds the twelve-page or 4, 000 word maximum contained in M. R. App. P. 14(9)(b). We require all litigants to comply with Court rules and could dismiss the petition solely due to being overlength.

         In 2012, Smith pleaded guilty to felony aggravated assault in exchange for the prosecution's agreement to dismiss a charge of felony assault with a weapon. Smith had assaulted his girlfriend with a hammer at her residence whereby he caused permanent damage and disfigurement to her. On May 9, 2012, the Missoula County District Court sentenced Smith to Montana State Prison for a twenty-year term with no eligibility for parole. He did not appeal. Representing himself, Smith filed a motion to withdraw his plea, which the District Court denied on July 25, 2012.

         Smith did not seek a timely appeal with this Court. Since 2013, Smith has sought various forms of relief with this Court. In April 2013, he first sought habeas corpus relief, challenging the validity of his change of plea proceeding, the court's jurisdiction, and presiding judge. Smith v. Frink, No. OP 13-0278, Order (Mont. Jun. 5, 2013) (Smith I). Smith then filed a petition for an out-of-time appeal of the District Court's denial of his motion to withdraw his plea. This Court denied his petition, stating that his appeal "is essentially premised upon ineffective assistance of his counsel during sentencing." State v. Smith, No. DA 13-0399, 2013 Mont. LEXIS 282, Order, at *1-*2 (Mont. Jul. 10, 2013) (Smith II). We further stated that:

However, a record establishing the reasons for action or inaction by counsel is necessary before such claims can be adjudicated on appeal. State v. Jay, 2013 MT 79, ¶ 36, 369 Mont. 332, 298 P.3d 396 ("This Court may review a claim of ineffective assistance of counsel on direct appeal only when the record 'fully explains why counsel took, or failed to take, action in providing a defense for the accused.'") (citation omitted). Smith has not demonstrated that there is a record that would permit adjudication of ineffectiveness claims on appeal.

Smith II, at *2. We pointed out that Smith could have raised any ineffectiveness of assistance of counsel claims in a petition for postconviction relief.

         In 2016, Smith returned with another petition for a writ of habeas corpus, seeking relief from his 2012 conviction. He raised the claim of a void conviction because no predetermination hearing occurred before the commencement of prosecution. Pointing to his 2013 petition for habeas corpus relief, we denied his 2016 petition because the District Court had subject matter jurisdiction and his claims were barred by principles of claim preclusion. Smith v. Fender, No. OP 16-0205, Order (Mont. Apr. 12, 2016) (Smith III).

         Smith ultimately did seek postconviction relief in the Missoula County District Court. On August 16, 2016, he filed, as a self-represented litigant, a petition for postconviction relief. The District Court denied his petition noting that it was time-barred, pursuant to § 46-21-102, MCA. Smith appealed. Smith v. State, No. DA 17-0146, 2018 MT 115N, 2018 Mont. LEXIS 150 (Smith IV). We specifically stated: "Smith did not appeal his conviction to this Court. Therefore, his conviction was final in July of 2012." Smith IV, U 6. We held that the District Court correctly denied Smith's petition for postconviction relief on the bases that it was time-barred and that the newly discovered evidence requirements of § 46-21 -201 (2), MCA, were not met. Smith IV, f 9. We affirmed the court's ruling. Smith IV, ¶¶ 2, 11.

         Smith appealed the District Court's decision denying his motion to withdraw his guilty plea, filed in District Court on April 17, 2017. State v. Smith, No. DA 17-0385. Smith did not file his opening brief after several extensions of time were granted. After giving him notice, this Court dismissed his appeal with prejudice. State v. Smith, No. DA 17-0385, Order (Mont. Feb. 14, 2018) (Smith V).

         In 2018, this Court again denied Smith's petition for a writ of habeas corpus and his request for outside counsel was deemed moot. Smith v. McTighe, No. OP 18-0532, 2018 Mont. LEXIS 332, Order (Mont. Sept. 25, 2018) (Smith VI). "By not appealing within the sixty-day timeframe from the 2012 judgment, Smith has exhausted the remedy of appeal and he is thus barred from raising these issues in a petition for habeas corpus relief. Section 46-22-101(1), MCA; Lott [v. State, 2006 ML 279, ] ¶¶ 4, 19[, 334 Mont. 270, 150 P.3d 337]." Smith VI, at *5. We addressed all his claims and concluded that "Smith has not demonstrated an illegal sentence and he is not entitled to this matter being remanded for resentencing." Smith VI, at *5.

         Smith raises several claims and issues in his instant petition. Smith goes back through his documents. He states that he did file an appeal with this Court and that it was filed on February 7, 2013. He adds that it was returned to him. Smith raises various arguments about his counsel, how her name still appears on the 2013 copy of the docket sheet, and how his attorney should have sought an appeal or assisted him with his postconviction relief petition. Smith points out that she was still receiving notices and copies of the orders after his sentencing. He concludes that any agreement is broken and that based upon this reasoning, he argues that the writ is the appropriate remedy.

         Smith's writ is not the appropriate remedy and as stated before his claims are barred from any relief. Section 46-22-101(2), MCA. His attachments do not help his arguments at this point. The 2013 docket sheet does not have when counsel filed a motion to withdraw as counsel. Regardless, Smith states that his case was closed a week after sentencing. Turning to his appeal, he did not seek a timely appeal. We point out that his copy of his Filing a Notice of Appeal has the date of filing blacked out because it was untimely. The Clerk of this Court returned the document to Smith because he was seeking to appeal an order issued seven months prior and he needed to petition the Court for an out-of-time appeal. Moreover, Smith's letter from the Office of State Public Defender, dated July 10, 2012, stated that his counsel could not assist him on appeal because his sentence was within the statutory term and that he must pursue postconviction relief on his own.

         In his instant petition, Smith presents a list of grounds for relief: (1) denial of counsel to assist with his motion to withdraw guilty plea; (2) ineffective assistance of counsel for failure to consult Smith about appeal; (3) ineffective assistance of counsel for failure to preserve right to appeal and/or file notice of appeal; (4) ineffective assistance of counsel for attorney abandonment; (5) his claim of being forced to proceed pro se when the District Court was aware of his court-appointed attorney still assigned to the case; (6) invalid plea due to invalid waiver form claiming, "'right to be represented by counsel[;]" (7) invalid plea due to invalid waiver regarding adverse determination of any specified pretrial motion; (8) invalid plea due to invalid waiver form claiming the right to appeal the voluntariness nature of the plea; (9) denial of the right of appeal; and (10) ineffective assistance of counsel because he did not have counsel for his petition for postconviction relief. Smith requests his immediate release from custody. He further requests that he be allowed to withdraw his plea of guilty and "substitute it with a plea of not guilty, restoring all of the rights that were waived by the invalid waiver[.]" He lastly asks for the appointment of outside counsel.

         Smith's claims find no relief with this Court. "Under the doctrine of law of the case, a prior decision of this Court resolving a particular issue in the same case is binding and cannot be relitigated." State v. Gilder, 2001 MT 121, ¶ 9, 305 Mont. 362, 28 P.3d 488 (citation omitted). Habeas corpus is not an alternative for a direct appeal. State v. Wright,2001 MT 282, ¶ 13, 307 Mont. 349, 42 P.3d 753. Smith has exhausted the remedy of appeal because he did not timely appeal. Smith II. We have told Smith repeatedly that his appeal right is exhausted. Smith I, Smith IV, and Smith VI. Smith attempts to challenge all aspects of his criminal proceedings and conviction here. Any ...


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