Opinion
OP 22-0468
09-20-2022
ALEX CHRISTOPHER SMITH, Petitioner, v. JAMES SALMONSEN, Warden, Montana State Prison, Respondent.
ORDER
Alex Christopher Smith petitions this Court for habeas corpus relief, arguing that this Court should release him from prison and dismiss his criminal charges because he "was denied the right to counsel, as [he] was not provided counsel for over 90 days after [he] was arrested." After his August 14, 2021 arrest, Smith states that he requested representation of counsel from the Cascade County Office of Public Defender multiple times and that he "did not have representation during the crucial stages of [his] incarceration."
Available electronic records indicate that the State charged Smith with five felonies, including attempted deliberate homicide, on August 14, 2021, in the Cascade County District Court. On June 24, 2022, the District Court accepted Smith's nolo contendere pleas to two counts of felony assault with a weapon (reasonable apprehension) and sentenced Smith to the Montana State Prison for two, consecutive twenty-year terms. Smith did not appeal his conviction and sentence to this Court.
Smith is not entitled to habeas corpus relief. Smith has not demonstrated illegal incarceration or illegal restraint. Section 46-22-101(1), MCA; Miller v. Eleventh Judicial District Ct., 2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186. Any challenge about counsel, or the lack thereof, would have been more appropriate in an appeal. Section 46-20-104(1), MCA. His claim lacks merit. This Court has previously explained that "'a defendant waives the right to appeal all nonjurisdictional defects upon voluntarily and knowingly entering a guilty plea, including claims of constitutional violations which may have occurred prior to the plea.'" State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104. Smith is precluded from raising this issue in a petition for habeas corpus relief when it is the wrong remedy for his late claim. Section 46-22-101(2), MCA. Accordingly, IT IS ORDERED that Smith's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
The Clerk is also directed to provide a copy of this Order to counsel of record and to Alex Christopher Smith personally.