Opinion
OP 23-0217
04-25-2023
BRIAN WAYNE PARKER, Petitioner, v. JENNI NICHOLLS, Respondent.
ORDER
Brian Wayne Parker has filed a Petition for Writ of Habeas Corpus, indicating that his incarceration is illegal. He states that he is "actually innocent of the offense" and that he does "not meet the elements needed to be convicted." Parker requests his immediate release. Parker is currently placed at the Connections Corrections Program in Butte, Montana.
Available electronic records indicate that the State charged Parker with aggravated driving or being in actual physical control of a vehicle under the influence of alcohol, a fourth or subsequent offense, in July 2020. Several months later, upon the filing of the written Acknowledgement of Penalties, Waiver of Rights and Plea Agreement, Parker entered a guilty plea. On January 19, 2021, the Richland County District Court committed Parker to the Department of Corrections for a five-year, suspended term and ordered that Parker enroll in and complete the 7th Judicial District Adult DUI Treatment Court. Parker did not appeal.
As a threshold matter, Parker has not presented a prima facie case for a writ of habeas corpus to issue. Parker, as a Petitioner in a habeas corpus proceeding, "has the burden of proof or the burden of persuasion." In re Hart, 178 Mont. 235, 249, 583 P.2d 411, 419 (1978). Parker has not met his burden. He gives very little information without "proving the violation, deprivation, infringement, or denial of his constitutional, statutory, or legal rights generally[.]" Hart, 178 Mont, at 250, 583 P.2d at 419.
Moreover, Parker cannot demonstrate illegal incarceration. "[T]he right of a person to habeas corpus relief depends on the legality or illegality of his detention[.J" Hart, 178 Mont, at 249, 583 P.2d at 418 (citation omitted). His Petition is a collateral attack on his conviction, not his sentence or the cause of his restraint. Parker is precluded from challenging his conviction after entering a guilty plea as well as waiving his rights. Section 46-22-101(1), MCA. This Court has stated before that "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). Parker is time-barred and barred procedurally from challenging his 2020 conviction in this original proceeding. Section 4622-101(2), MCA. Parker is not entitled to relief or his immediate release. Therefore, IT IS ORDERED that Parker'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; to Jenni Nicholls, CCP: and to Brian Wayne Parker personally.