Opinion
OP 24-0657
11-26-2024
KEITH MARTIN BORRA, Petitioner, v. D.J. GODFREY, Warden, Crossroads Correctional Center, Respondent.
ORDER
Representing himself, Keith Martin Borra has filed a Petition for Writ of Habeas . Corpus, claiming he is illegally incarcerated and requesting his immediate release from prison. Borra argues this Court should "expunge" his 2019 criminal case from the Tenth Judicial District Court where he received a conviction. He includes a copy of a three-page form, alleging that "the State failed to indict by grand jury[,]" and listing fourteen issues. Borra is incarcerated in the Crossroads Correctional Center in Shelby, Montana.
This Court has entertained other prior petitions from Borra. In 2023, we denied his petition for an out-of-time appeal because he offered no explanation for the four-year delay between sentencing and seeking an appeal. State v. Borra, No. DA 23-0670, Order (Mont. Dec. 5, 2023). In December 2019, the District Court sentenced Borra to the Department of Corrections for an unsuspended, five-year term for stalking, followed by a consecutive, unsuspended five-year term for felony tampering with a witness/informant. Earlier this year, we denied his petition for habeas corpus relief. Borra v. Bludworth, No. OP 24-0092, Order (Mont. Feb. 27, 2024).
Borra challenges the District Court's jurisdiction based on the commencement method for felony prosecution. His premise and basis for his writ lack merit. This Court has heard this argument many times. State v. Montgomery, 2015 MT 151, 379 Mont. 353, 350 P.3d 77. Almost a decade ago, we explained that the U.S. Constitution's "Fifth Amendment's grand jury requirement has not been construed to apply to the states." Montgomery, ¶ 9. In Montgomery, we pointed to more recent United States Supreme Court case law which distinguished the grand jury requirement for indictment in federal cases from commencing prosecution in state cases. Montgomery, ¶ 9 (citing Apprendi v. New Jersey, 530 U.S. 466,477 n.3, 120 S.Ct. 2348, 2355 n.3 (2000) (noting that the Fourteenth Amendment "has not . . . been construed to include the Fifth Amendment right to 'presentment or indictment of a Grand Jury. . . We conclude that the District Court had subject matter jurisdiction of Borra's criminal case. Montgomery, ¶ 11. We decline to consider Borra's fourteen issues in a writ of habeas corpus.
Borra has not demonstrated illegal incarceration. Section 46-22-101(1), MCA. Borra is procedurally precluded from challenging or raising any claims against his convictions when he has exhausted the remedy of appeal by not timely appealing. Section 46-22-101(2), MCA. He was properly prosecuted, and his conviction is not void. Borra has a lawful sentence, and he is not entitled to his release. Therefore, IT IS ORDERED that Borra's Petition for Writ of Habeas Corpus is DENIED and DISMISSED. IT IS FURTHER ORDERED that this case is CLOSED as of this Order's date.
The Clerk is directed to provide a copy of this Order to counsel of record and to Keith Martin Borra personally.