Opinion
OP 21-0601
12-07-2021
CARL W. KEENE, Petitioner, v. JIM SALMONSEN, Warden, Montana State Prison, Respondent.
ORDER
Self-represented Petitioner Carl W. Keene has filed a Petition for Writ of Habeas Corpus, contending wrongful incarceration because of an illegal sentence. Keene requests his immediate release from the Montana State Prison (MSP).
In July 2004, the State of Montana initially charged Keene with deliberate homicide after Keene stabbed a man in Butte-Silver Bow County. On July 5, 2005, Keene entered a guilty plea to mitigated deliberate homicide. The Second Judicial District Court sentenced Keene to the Department of Health and Human Services (DPHHS) for a thirty-year term. Keene did not appeal his conviction. Five years later, the District Court held a hearing on DPHHS's motion to transfer, resulting in Keene's transfer from the Montana State Hospital to MSP in March 2010.
Keene argues several claims in his Petition, including (1) ineffective assistance of counsel; (2) lack of capacity or particular state of mind to commit the offense; (3) "coerced" plea agreement; (4) "being severely mentally ill at the time of the offense and at the present time[;]" (5) void plea agreement; and (6) a miscarriage of justice. He requests acquittal or at least entering into another agreement and being "retried." Keene contends that because these claims are supported by his exhibits, he should be immediately released.
Keene is not entitled to his release from MSP. We have explained this to him previously when deciding his writs for extraordinary relief. Since 2009, Keene has filed five writs with this Court, and we have denied them all. This is Keene's sixth writ.
In September 2009, Keene filed his first writ for habeas corpus relief. He brought forth similar arguments then as he does now.
Keene's [Petition] cites various grounds and supporting facts, which may be summarized as follows: 1) ineffective assistance of counsel; 2) that Keene acted in self-defense[;] 3) that Keene is mentally ill and that the victim made a statement that Keene was in a zombie-like state; 4) that a struggle ended in a hallway and forensic tests should have been conducted to show Keene's fingerprints on the door. While Keene avers these grounds and facts under oath, he has failed to cite any authority in support of his arguments. He has not alleged that he is illegally incarcerated.
This Court dismissed his petition because Keene was both time and procedurally barred from challenging his conviction and sentence. We stated that "individuals, such as Keene-who has been adjudged guilty of an offense and failed to appeal- are barred from attacking the validity of a sentence under the current habeas corpus statute. State v. Lott, 2006 MT 279, ¶ 19, 334 Mont. 270, 150 P.3d 337." Keene v. Montana State Hosp., No. OP 09-0491, Order (Mont. Oct. 7, 2009), at 1. (Keene I).
Six years later, Keene filed another petition for habeas corpus relief, challenging the legality of his 2005 conviction and requesting an automatic release from MSP. He argued then that "he thought he was agreeing to a five to seven year sentence at the Montana State Hospital in the plea agreement[.]" He put forth that "the judge, the prosecuting attorney, and his defense counsel, Brad Belke, 'committed collusion upon the petitioner.'" This Court denied his petition. Keene v. Kirkegard, No. OP 15-0531, Order (Mont. Sept. 15, 2015) (Keene IT). We pointed out that Keene brought his claims too late for any relief because he was barred from doing so. We explained:
When Keene entered into this plea agreement, he waived any constitutional challenges. "' [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, citing State v. Violette, 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804. Keene waived any challenges to his conviction because he pleaded guilty in 2005.
. Keene is not entitled to an automatic release under habeas corpus because he has no viable claim. He cannot attack his 2005 sentence because he was found guilty of this offense in a court of record[] and has exhausted his appeal remedy by failing to file a timely appeal. Section 46-22-101(2), MCA; Lott v. State, 2006 MT 279, ¶¶ 4, 19, 334 Mont. 270, 150 P.3d 337. Thus, we must deny his petition.Keene II, at 2.
In January 2018, Keene filed another petition for a writ of habeas corpus where he sought his immediate release from MSP. Keene questioned why he was not still placed at the Montana State Hospital and asserted that "he was deliberately misled into a plea bargain under his 'severe[] mental distress.'" He requested that he be returned to the District Court to change his plea. We denied his petition. Keene v. Fletcher, No. OP 18-0001, Order (Mont. Jan. 16, 2018) (Keene III). We explained that:
Keene's realization arrives too late for this remedy. His attachments do not support his arguments concerning his counsel, his criminal proceedings, and his entry of a guilty plea. In the attached letters, Keene's prior counsel explained the benefit of entering a guilty plea as opposed to taking his case to trial. From the transcript, the court questioned Keene about whether he understood the rights that he was relinquishing by entering this plea. The court questioned Keene about whether he understood that he was giving up his rights to his presumption of innocence, to a jury trial, and to appeal a conviction, to which Keene answered all in the affirmative.
Keene cannot use the remedy of habeas corpus to reach a different outcome in his case some twelve years later. As we explained before, "Keene waived any challenges to his conviction because he pleaded guilty in 2005." Keene v. Kirkegard, No. OP 15-0531, Or. (Mont. Sept. 15, 2015). "' [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, citing State v. Violette, 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804. Keene was found guilty of this offense in a court of record and has exhausted his appeal remedy by failing to file a timely appeal. Section 46-22-101(2), MCA; Lott v. State, 2006 MT 279, ¶¶ 4, 19, 334 Mont. 270, 150 P.3d 337. He is barred procedurally from attacking his 2005 conviction.Keene III, at 1-2.
Striking a new tact, Keene filed a "Petition for Writ of Mandamus with the Motion to Compel of Case No. DC-04-121[, ]" seeking to compel the District Court "to address the various pleading he has filed in his criminal case over the last year." We denied his writ of mandate because "Keene ha[d] not demonstrated that a clear legal duty exists for which the presiding judge is obligated to act." Keene v. Second Judicial Dist. Ct., No. OP 18-0479, Order, at 2 (Mont. Aug. 21, 2018) (Keene IV). We also explained that "thirteen years after his conviction, Keene is limited procedurally and substantively to seek redress through a District Court." Keene IV, at 2.
This Court has pointed out before that Keene's remedies are limited. "Because he did not appeal his conviction, the only other avenue to attack his conviction was for him to file a timely petition for postconviction relief." Keene v. Kirkegard, No. OP 15-0531, Order (Mont. Sept. 15, 2015). Keene should have filed a petition one year from the date of his sentencing. He did not do so. We further stated in a separate original proceeding here: "Keene was found guilty of this offense in a court of record and has exhausted his appeal remedy by failing to file a timely appeal." Keene v. Fletcher, No. OP 18-0001, Order (Mont. Jan. 16, 2018) (citations omitted).
In November 2018, Keene filed a '"Request for New Plain-Error Review' pursuant to U.S. v. Marcus, 560 U.S. 258, 130 S.Ct. 2159 (2010) and contend[ed] that his right to appeal has been preserved as noted in the attached copy of Butte-Silver Bow County District Court's docket for Cause No. DC-04-121." Keene also requested reconsideration of this Court's previous decision in Keene IV. Keene also stated that he has a wrongful conviction, that he wants to proceed on appeal, and that he wants to be placed at the State Hospital. This Court denied and dismissed his requests because this Court could not provide such extraordinary relief to him. Keene v. Montana State Supreme Court et al, No. OP 18-0641, Order (Mont. Nov. 20, 2018) (Keene V). This Court also cautioned Keene about repeated filings of his pleadings concerning his 2005 conviction and sentence. Keene V, at 3.
Keene's instant arguments can find no relief here because we have addressed and denied them before. Keene is not entitled to release. Keene II and Keene IV. Keene is not entitled to be placed again at the Montana State Hospital. Keene III and Keene V. Keene is prohibited from raising claims of ineffective assistance of counsel. Keene I, Keene II, and Keene IV. He cannot challenge his plea agreement or his guilty plea. Keene I, Keene II, Keene III, Keene IV, and Keene V, The District Court considered Keene's mental health when he was convicted of mitigated deliberate homicide and sentenced in 2005, and as stated many times, he is precluded from challenging his conviction or collaterally attacking his sentence. Keene I, Keene II, Keene III, Keene IV, and Keene V. Keene has no preserved right of appeal. Keene II and Keene V. Therefore, IT IS ORDERED that Keene ;s Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
IT IS FURTHER ORDERED that henceforth, prior to filing any original petition or other pleading concerning his 2005 conviction and sentence with this Court, Keene is directed to file a motion for leave to file the petition. The motion for leave must be sworn under oath, not exceed three pages in length, and make a preliminary showing that the petition has merit and meets the criteria to state a prima facie case under M. R. App. P. 14(5). Only when this Court has reviewed the motion and issued an order granting leave to file may the Clerk of this Court file the petition. Any original petition or other pleading Keene seeks to file shall be rejected and the Clerk shall inform Keene accordingly.
The Clerk is directed to provide a copy of this Order to counsel of record and to Carl William Keene along with a copy of M. R. App. P. 14(5) for his reference.