Opinion
OP 23-0141
03-14-2023
DESMOND ALAN MACKAY, Petitioner, v. PETER BLUDWORTH, Warden, and STATE OF MONTANA, Respondents.
ORDER
Desmond Alan Mackay has filed a "Request for Writ of Habeas Corpus" and a separate Petition for Writ of Habeas Corpus. He claims to be restrained of his liberty under an illegal sentence, contending that the sentencing court wrongfully imposed a twenty-five-year parole restriction. Mackay argues that the sentencing judge had a personal interest in the underlying criminal case because the judge knew the victim and that this Court improperly denied his motion to disqualify the judge in August 2015. Mackay argues further that § 46-22-101(1), MCA. is unconstitutional because it abridges the right to habeas corpus guaranteed by both the Montana and United States Constitutions and violates his right to due process. Lastly, he argues that he was "never indicted by a Grand Jury[,]" violating the Fifth Amendment of the United States Constitution.
Mackay is serving a forty-year prison sentence for mitigated deliberate homicide. In its written Judgment, the Lake County District Court imposed a parole restriction of twenty-five years and awarded Mackay 603 days of credit for time served. In 2016, Mackay appealed. He later moved through counsel to dismiss voluntarily his appeal, and this Court granted the motion. State v. Mackay, No. DA 16-0028. Order Dismissing Appeal (Mont. Oct. 31.2016).
Upon review of his pleadings, we conclude that Mackay is not entitled to habeas corpus relief. "There is no absolute standard for what constitutes due process. Rather, the requirements of due process are flexible, so that they may be adapted to meet the procedural protections demanded by a particular situation." McDermott v. McDonald, 2001 MT 89, ¶ 10, 305 Mont. 166, 24 P.3d 200. Mackay's due process rights have not been violated. He was able to file two pleadings with this Court for relief; that is the purpose of the statute-"every person imprisoned or otherwise restrained of liberty within this state may prosecute a writ of habeas corpus...." Section 46-22-101(1), MCA. The statute provides' a process to fulfill the rights guaranteed by the state and federal constitutions. But it does not deliver release unless the applicant demonstrates that the incarceration is illegal. Mackay has not shown illegal incarceration.
First, 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)). Mackay is not entitled to an indictment by a grand jury in Montana. See § 46-11-101(3), MCA (2013).
Second, Mackay's challenge to the legality of the parole restriction on grounds of the "Judge's malice and bias" is not supported by the law. This Court has stated that district courts have the power to impose a sentence upon a specific grant of authority. State v. Burch, 2008 MT 118, ¶ 23, 342 Mont. 499, 182 P.3d 66. A district court may impose a parole eligibility restriction, pursuant to § 46-18-202(2), MCA, while giving the reasons in the written judgment. Burch, ¶¶ 14,23. Here, the Lake County District Court listed sixteen reasons for the sentence, including the aggravated nature of the offense and the court's concerns about the safety of the community. Further, Mackay acknowledges that this Court denied his motion to disqualify before the court imposed sentence, and he should have challenged the judge's bias or cause for disqualification in a direct appeal of his conviction. He chose voluntarily to dismiss the appeal, thereby exhausting his appeal remedy. "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. Mackay cannot demonstrate a facially invalid sentence.
Mackay since has filed a motion to compel transcripts with this Court. His motion is improper in an original proceeding for habeas corpus relief because a motion for transcripts is not contemplated in the applicable statutes. M. R. App. P. 14(2). Moreover, there is no need for transcripts because this original proceeding is not a substitute for an appeal. State v. Wright, 2001 MT 282, ¶¶ 36-37, 307 Mont. 349, 42 P.3d 753.
IT IS THEREFORE ORDERED that Mackay's Petition for Writ of Flabeas Corpus and Request for Writ of Habeas Corpus are DENIED and DISMISSED.
IT IS FURTHER ORDERED that Mackay's Motion to Compel Transcripts is DISMISSED. This matter 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 Desmond Alan Mackay personally.