Opinion
OP 21-0659
01-11-2022
DANIEL E. NEWBY, Petitioner, v. JIM SALMONSEN, Warden, Montana State Prison, Respondent.
ORDER
Daniel E. Newby has filed a "Motion for the Appointment of Counsel for an Indigent Pro se Prisoner in a Writ of Habeas Corpus Proceeding." Newby states that he is entitled to effective assistance of counsel in this writ matter. He further states that he is challenging subject matter jurisdiction, the filing of an information to initiate the accusatory process, the constitutionality of the "Unlawful and Illegal Convictions," and he asserts a miscarriage of justice. Newby requests his immediate release and exoneration.
We observe that on the same day that Newby filed this motion, he filed a notice of appeal of three criminal cases, "An appeal may be taken by the defendant only from a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant." Section 46-20-104(1), MCA. Newby's motion for appointment of counsel is not appropriate for a habeas corpus proceeding. Section 46-8-104, MCA. The claims he raises are also not appropriate in habeas corpus. The remedy of habeas corpus is not a substitute for a direct appeal of a conviction and sentence. An appeal is the proper forum in which to litigate Newby's issues. State v. Wright, 2001 MT 282, ¶¶ 36-37, 307 Mont 349, 42 P.3d 753. Newby may file a motion for appointment of counsel in his appeal, Cause No. DA 21-0657, for this Court to consider. His appeal is the appropriate place to challenge his convictions, and he may raise such affiliated claims there. 1
Without reaching the merits, we must dismiss Newby's petition for habeas corpus relief. Accordingly, IT IS ORDERED that Newby's Motion for Appointment of Counsel is DENIED.
IT IS FURTHER ORDERED that Newby's Petition for Writ of Habeas Corpus is DISMISSED, without prejudice.
The Clerk is directed to provide a copy of this Order to counsel of record and to Daniel E. Newby personally. 2