Opinion
OP 21-0263
06-08-2021
CHARLES CLARY, Petitioner, v. JIM SALMONSON, Warden, Montana State Prison, Respondent.
ORDER
Charles Clary has filed a petition for a writ of habeas corpus. He questions whether the second sentence of Article III, Section 7 of the 1889 Montana Constitution allows waiver of the oath or affirmation, so that "the illegality of a warrant issue[d] upon an unverified information can also be waived[.]" Clary contends the commencement of prosecution in the State of Montana violates the Fourth Amendment to the United States Constitution "along with the 5th, 6th, 8th, 9th, 13th, 14th, Amendments] to the Bill of Rights[.]" Clary also raises due process and equal protection claims. Citing to § 46-11-201(2), MCA, Clary further contends that "a one Judge, Arbiter, ... is spoon fed unsworn third tier affidavit of information by a Prosecutor[.]"
However, Clary explains that he is not petitioning about his own conviction, but is seeking an answer to what is, at this juncture, a theoretical question. However, Clary is not entitled to an answer to his question because the Court does not issue advisory opinions. Independence Med. Supply, Inc. v. Mont. Dep't of Pub. HHS, 2018 MT 57, ¶ 37, 391 Mont. 1, 414 P.3d 781. Clary raised a similar claim in a prior writ. Clary v. State, No. OP 20-0143, Order, at 1-2 (Mont Mar. 24, 2020). A challenge to a trial court's jurisdiction or the commencement of prosecution would be more appropriately raised in an appeal. State v. Montgomery, 2015 MT 151, ¶ 11, 379 Mont. 353, 350 P.3d 77. We have explained, in response to a previous petition. "Clary's cause of incarceration is due to his 2010 convictions and sentences from Cascade County. He does not challenge this cause of incarceration. and he has not demonstrated an illegal sentence. Section 46-22-101(1). MCA." Clary v. Guyer, No. OP 19-0203, Order, at 1-2 {Mont. Apr. 16. 2019). Neither has Clary demonstrated illegal incarceration in his instant Petition.
Montana district courts operate under the current version of the Montana Constitution where Initiation of Proceedings is found in art. II, § 20. See also Montgomery, ¶ 8 (citing Mont. Const, art. VI I. {j 4).
We caution Clary that if he continues to file pleadings with baseless claims. the Court may consider imposition of a pre-filing requirement to obtain leave prior to any filing. Accordingly.
Clary v. Eighth Judicial Dist (i.. No OP 14-0519, Order denying writ (Mont. Aug. 26. 2014); (`Uny v. Fender. No. OP 1 7-0351, Order dismissing writ due to pending appeal (Mont. Jun. 27. 2017): Clary v. Guyer, No. OP 19-0203, Order denying writ (Mont. Apr. 16, 2019); (`htrv v. Slate of Montana. No. OP 20-0143, Order denying writ (Mont. Mar. 24, 2020).
IT IS ORDERED that Clary'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 Charles Clary personally.