Opinion
OP 23-0083
02-28-2023
ABRAHAM SPOTTED ELK, Petitioner, v. PETER BLUDWORTH, Warden, Crossroads Correctional Center, . Respondent.
ORDER
Abraham Spotted Elk has filed a Petition for Writ of Habeas Corpus and brief in support, arguing that his sentence is facially invalid because Judge Souza "prosecuted" him after granting leave to the State to file the information, or charging documents.
On December 16, 2016, the Yellowstone County District Court committed Spotted Elk to the Montana State Prison to a total of a forty-year term and designated Spotted Elk as a persistent felony offender. Spotted Elk entered no contest pleas to three felonies: assault on a peace officer and two counts of criminal endangerment. Spotted Elk did not appeal his convictions or sentences.
Spotted Elk argues that the entire prosecution was void and that his right to due process has been violated. He contends that "Judge, Souza rendered a facially invalid sentence in light of the fact he took place [sic -part] in the accusatory process of Spotted Elk" in violation of a United States Supreme Court case. See Williams v. Pennsylvania, - 579 U.S. 1, 9, 136 S.Ct. 1899, 1905-06 (2016). He claims that Judge Souza worked as a prosecutor in the Yellowstone County Attorney's Office in 1980, bringing charges against Spotted Elk; moreover, Spotted Elk argues that the Judge should have recused himself after granting leave to file an information in his 2016 criminal case. Spotted Elk alleges that the Judge participated in both his accusatory phase and sentencing, and he relies on federal law, Montana and United States Constitutions, and several Montana statutes, specifically § 46-11-101, and § 46-11-201, MCA. He requests his immediate release from incarceration.
Spotted Elk's claims have no merit. His references to federal law concerning grand juries do not apply to states. [T]he Fifth Amendment's grand jury requirement has not been construed to apply to the states.' "State v. Montgomery, 2015 MT 151, ¶ 9, 379 Mont. 353, 350 P.3d 77 (quoting U.S. v. Allen, 406 F.3d 940, 942 (8th Cir. 2005)). In Montgomery, this Court held that "Montana statutes offer four methods to commence a prosecution in this state, one of which is indictment by a grand jury. Sections 46-11-101(1) -(4), MCA." Montgomery, ¶ 11. "'[A] defendant is not entitled to any specific procedure.'" Montgomery, ¶ 11 (citing State v. Haller, 2013 MT 199, ¶ 8, 371 Mont. 86, 306 P.3d 338) (internal citation omitted). If the State commences prosecution by filing an application and an affidavit that identifies supporting evidence demonstrating probable cause, the district court has subject matter jurisdiction to proceed "as stated in Mont. Const, art. VII, § 4(1) and § 3-5-302(1)(a), MCA[.]" Montgomery, ¶ 11. Judge Souza did not need to recuse himself.
Spotted Elk is not entitled to his release or his other requests. He brings these challenges too late. He could have raised these issues in an appeal, but, as he notes in his instant Petition, he is now procedurally barred from challenging his 2016 conviction. "The writ of habeas corpus is not available to attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense in a court of record and has exhausted the remedy of appeal." Section 46-22-101(2), MCA. By not appealing, he has exhausted his appeal rights. Lott v. State, 2006 MT 279, ¶¶ 4, 19, 334 Mont. 270, 150 P.3d 337.
Spotted Elk cannot demonstrate a facially invalid sentence. Lott, ¶ 22. The State of Montana commenced his felony prosecution according to Montana's Constitution and under its applicable statutory scheme by filing an application which includes an information for leave of court and an affidavit supported by evidence. Section 46-11-201(2), MCA (2015). See also Montgomery, ¶¶ 9-11; Mont. Const, art. II, § 20(1); §§ 46-11-101(3), 46-11-102(1), and 46-10-105(2), MCA. The District Court had subject matter jurisdiction, and Spotted Elk's Judgment is not void. Therefore, IT IS ORDERED that Spotted Elk'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 Abraham Spotted Elk personally.