ROBERT S. PIERCE, Petitioner,
LYNN GUYER, Warden, Montana State Prison, Respondent.
S. Pierce has filed a petition for a writ of habeas corpus,
requesting relief from his "illegal detainment." He
also moves this Court to recuse Chief Justice Mike McGrath
from ruling on his petition because of this Court's
recent Opinion, affirming the denial of his petition for
found Pierce guilty of sexual intercourse without consent and
sexual assault of his step-granddaughter in April 2013. On
December 10, 2013, the Third Judicial District Court,
Anaconda-Deer Lodge County, sentenced Pierce to a forty-year
term at Montana State Prison (MSP) with twenty-five years
suspended for the sexual intercourse without consent
conviction, and for the sexual assault conviction, imposed a
concurrent twenty-five year sentence at MSP. The District
Court placed a parole ineligibility restriction often years
and designated him a Tier I sexual offender. Pierce received
229 days of credit for time served.
counsel, Pierce appealed, challenging the District
Court's denial of his motions for discovery
sanctions-specifically a continuance-and a mistrial.
State v. Pierce, 2016 MT 308, ¶ 15, 385 Mont.
439, 384 P.3d 1042 (Pierce I). We affirmed and
stated that "[t]he District Court did not abuse its
discretion in denying Pierce's request for a discovery
sanction in the form of a continuance. The District Court
similarly did not abuse its discretion in denying
Pierce's motion for mistrial." Pierce I,
¶¶ 29, 30.
self-represented litigant, Pierce has since had two other
appeals with this Court. In 2015, while his appeal was
pending with this Court, he filed a civil suit in District
Court against the law enforcement officers who investigated
the criminal complaints, the mother of the victim, the
victim, and Anaconda-Deer Lodge County, "alleging
conspiracy, defamation, intimidation, false reports, and
various civil rights violations, including both state claims
and federal claims under 42 U.S.C. § 1983."
Pierce v. Barkell et al., No. DA 17-0472, 2018MT
53N, ¶ 4, 2018 Mont LEXIS 66 (Pierce
II). We affirmed the District Court's
decision to grant summary judgment on each party's motion
"because Pierce was collaterally estopped from
re-litigating the issues already decided in his criminal
case." Pierce II, ¶ 7. We pointed out that
Pierce raised matters that could or should have been raised
in his underlying criminal proceeding. Pierce II,
¶ 15. "Because Pierce's civil suit is an
impermissible collateral attack on the validity of the
criminal conviction, the District Court correctly granted
summary judgment in Appellees' favor." Pierce
II, ¶ 15.
2017, Pierce filed a petition for postconviction relief in
the District Court. The court denied his petition, and he
appealed. Pierce v. State, No. DA 18-0404, 2019 MT
124N, 2019Mont. LEXIS 198. Pierce challenged the denials of
his actual innocence claim and of his ineffectiveness
assistance of counsel claims. Pierce III,
¶¶ 8-9. We affirmed. Pierce III,
Pierce requests his release because he contends that
"false information" was used in the prosecuting
documents and was the basis for not admitting forensic
interviews. He includes excerpts of testimony from his trial
and his federal civil case in his twenty-eight-page petition.
He cites to case law and statutes, raising issues of new
evidence, perjury, due process and other constitutional
rights' violations. Pierce further argues that the
District Court lacked subject matter jurisdiction and that
there was a lack of probable cause to indict, resulting in
violations of his right to be free from double jeopardy. He
requests his release so he may seek "other legal
remedies available to him[.]"
has exhausted his remedies with this Court concerning his
2013 conviction and sentence. He cannot demonstrate illegal
incarceration. A writ of habeas corpus is not available to
attack the sentence of a person who has been adjudged guilty
of an offense and has exhausted the remedy of appeal. Section
46-22-101(2), MCA; Lott v. State, 2006 MT 279,
¶¶ 4, 19, 334 Mont. 270, 150 P.3d 337. Pierce
appealed, and thus, he has exhausted his remedy of appeal. He
cannot relitigate these claims by way of habeas corpus.
Pierce is now procedurally barred from prosecuting a petition
for habeas corpus because these issues were, or could have
been, raised in his appeal. See Rudolph v. Day, 273
Mont. 309, 311, 902 P.2d 1007, 1008 (1995). We have stated as
much before. Pierce II, ¶ 8; Pierce
III, ¶ 15.
to Pierce's Motion to Recuse, it fails for several
reasons. First, Pierce misapplies § 3-1-803, MCA,
because Chief Justice McGrath did not preside over his trial
court proceeding as a district court judge. Second, motions
and motion practice are not tolerated in original
proceedings. M. R. App. P. 14(5). And, lastly, his motion is
moot because the Chief Justice is not on this panel.
Accordingly, IT IS ORDERED that Pierce's Petition for a
Writ of Habeas Corpus is DENIED.
FURTHER ORDERED that Pierce's Motion to Recuse Chief
Justice Mike McGrath from Ruling on the Accompanying Habeas
Corpus is DENIED as moot.
Clerk is directed to provide a copy of this Order to counsel
of record and to Robert S. Pierce personally.
 In this Memorandum Opinion, we
included more procedural history. The Respondents below
removed Pierce's civil action to federal court which
later dismissed Pierce's § 1983 claims because they
were barred. The federal court remanded the matter to the