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Heitkemper v. Guyer

Supreme Court of Montana

September 24, 2019

CHAD HEITKEMPER, Petitioner,
v.
LYNN GUYER, WARDEN, Respondent.

          ORDER

          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 Statutes."

         As an 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.

         In 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, ¶¶ 15-18.

         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.

         Heitkemper 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.

         Moreover, 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, ¶ 11.

          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.

         IT IS 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 moot.

         The Clerk is directed to provide a copy of this Order to counsel of record ...


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