Opinion
OP 22-0260
06-07-2022
SHANE PHILLIP NICKERSON, Petitioner, v. JIM SALMONSEN, Warden, Respondent.
ORDER
Shane Phillip Nickerson has filed a Petition for Writ of Habeas Corpus, indicating that his sentence and incarceration are illegal. Nickerson requests that this Court vacate his concurrent sentences for criminal endangerment and aggravated assault and that he receives a new sentencing hearing in a different venue.
In October 2009, a jury convicted Nickerson of four felonies: sexual assault, aggravated assault, criminal endangerment, and assault on a minor. The Flathead County District Court sentenced him to the Montana State Prison for a fifty-year term for sexual assault and concurrent sentences of twenty years, twenty years, and five years, respectively. Through counsel, Nickerson appealed. This Court remanded the case to the District Court to strike his conviction for assault on a minor and the corresponding five-year sentence because the State failed to prove an essential element of the offense. State v. Nickerson, No. DA 10-0259, 2011 MT 85N, ¶ 10, 2011 Mont. LEXIS 116. Nickerson's remaining convictions and sentences were affirmed. Nickerson, ¶¶ 2, 12.
Citing to this Court's 2019 Order concerning multiple convictions and sentences, Nickerson argues that he has been convicted of both charges from the same transaction. See Kills on Top v. Guyer, No. OP 18-0656, 2019 Mont. LEXIS'292 (Mont. Jul. 30, 2019). He claims violations of double jeopardy because he was "sentenced to a concurrent set of sentences for the same offense." Nickerson concludes that § 46-11-410, MCA, bars merged or joint sentences of aggravated assault and criminal endangerment arising from the same transaction.
Nickerson has raised similar arguments before with this Court.
Nickerson's reliance on Montana case law from direct appeals does not provide him legal authority to lift a procedural bar in an original proceeding, such as this. While Nickerson correctly quotes the purpose of habeas corpus as challenging a facially invalid sentence, he cannot demonstrate such an illegal sentence. Section 46-22-101(1), MCA. All of his arguments are to his convictions, which we cannot review. His reference to this Court's recent Kills on Top decision is not applicable either. Predicate offenses concern forcible felonies and deliberate homicide. See § 45-5-102(1)(b), MCA. Sexual assault is an included, but not a predicate, offense of sexual intercourse without consent. State v. Williams, 2010 MT 58, ¶ 28, 355 Mont. 354, 228 P.3d 1127. Lastly, habeas corpus is not an appropriate remedy for constitutional issues. Gates v. Missoula County Comm'rs, 235 Mont. 161, 261-62, 766 P.2d 884, 884-85 (1988).Nickerson v. Guyer, No. OP 20-0101, Order, at 2 (Mont. Mar. 10, 2020).
Section 46-11-410(1), MCA, provides that "[w]hen the same transaction may establish the commission of more than one offense, a person charged with the conduct may be prosecuted for each offense." While Nickerson may argue the invalidity of his sentences for offenses from the same transaction, he still is arguing about his convictions, which cannot be remedied by habeas corpus. These claims have been brought too late and through the wrong remedy. We explained this to him in 2020.
Nickerson brings his claims too late and via the wrong remedy of habeas corpus. Section 46-22-101(2), MCA. This statute bars a person "who has been adjudged guilty of an offense and . . . has exhausted his remedy of appeal, to attack the validity of his sentence." Lott v. State, 2006 MT 279, ¶ 19, 334 Mont. 270, 150 P.3d 337. ... By appealing, Nickerson has exhausted the remedy of appeal and cannot now attack the sentences for his convictions.Nickerson v. Guyer, No. OP 20-0101, Order, at 2 (Mont. Mar. 10, 2020).
Nickerson has not demonstrated facially invalid sentences or illegal incarceration. He is not entitled to habeas corpus relief. Section 46-22-101(2), MCA. Therefore, IT IS ORDERED Nickerson's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
The Clerk is directed to provide a copy of this Order to counsel of record and to Shane Phillip Nickerson.