Self-represented Petitioner Chad Heitkemper 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, because the District Court was without
jurisdiction. He has also filed a supporting brief with his
"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
initial matter, Heitkemper's petition, while typewritten,
exceeds seventeen pages. This does not include the eight
pages of his attached motion and brief. His filings exceed
the twelve-page or 4, 000 word maximum contained in M. R.
App. P. 14(9)(b). Moreover, "[n]o separate memorandum of
law or brief shall be filed with the application" M.
R. App. P. 14(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.
December 2014, the Twenty-Second Judicial District Court,
Carbon County, sentenced Heitkemper for felony sexual assault
to a twenty-year term, with seven years suspended. Heitkemper
appealed, raising issues about whether the District Court
erred in conducting an adequate initial inquiry regarding his
complaint and counsel's representation, his request to
withdraw his pro se plea of guilty, and his request for new
counsel. State v. Heitkemper, No. DA 16-0478, 2018
MT 251N, ¶ 10, 2018 Mont. LEXIS 345. This Court found no
abuse of discretion by the District Court and affirmed the
court's decisions. Heitkemper, ¶¶
claims that his incarceration is based on an illegal
conviction and sentence because the presiding Judge violated
his fundamental rights. Heitkemper alleges that 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, § 46-22-101, and -202, MCA. He
requests that this court vacate his criminal case and grant
his immediate release from incarceration.
is not entitled to his release or his other requests. He
brings these challenges too late. He could have raised these
issues in his prior appeal, but he is now procedurally barred
from challenging his 2015 conviction. "The writ of
habeas corpus is not available to attack the validity of the
conviction or sentence of a 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. Once
this Court decided the issues raised in his prior appeal,
Heitkemper had exhausted his appeal rights. Lott v.
State, 2006 MT 279, ¶¶ 4, 19, 334 Mont. 270,
150 P.3d 337.
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. Section 46-11-101(1)-(4), MCA."
Montgomery, ¶ 11. "'[A] defendant is
not entitled to any specific procedure.'"
Montgomery, ¶ 11 (citing State v.
Haller, 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,
Available electronic records indicate that the State of
Montana commenced Heitkemper'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 (2011).
See also Montgomery, ¶¶ 9-11; Mont. Const,
art. II, § 20(1); §§ 46-11-101(3), -102(1),
46-10-105(2), MCA. The District Court had subject matter
jurisdiction, and Heitkemper's Judgment is not void.
Heitkemper 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 Heitkemper's
Petition for a Writ of Habeas Corpus is DENIED and DISMISSED.
FURTHER ORDERED that Heitkemper'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 ...