Opinion
DA 24-0135
05-29-2024
STATE OF MONTANA, Plaintiff and Appellee, v. KINGSLEY U. ARIEGWE, Defendant and Appellant.
ORDER
Self-represented Appellant Kingsley U. Ariegwe moves this Court for a stay and abeyance in his recently filed appeal. He states that he needs "to adequately adjudicate and exhaust all his claims in the Montana Eighth Judicial District Court." The State has not filed a response to the motion.
Ariegwe appeals a February 22, 2024 Order denying his motion for a new trial, issued in the Eighth Judicial District Court, Cascade County. His opening brief is due on June 3, 2024.
This Court is familiar with his history. Since 2004, Ariegwe has had six other matters before this Court, including the appeal of his conviction and sentence imposed in the District Court. About a year ago, this Court issued an Order, denying his Petition for Writ of Habeas Corpus, and tying his previous seven cases together. Ariegwe v. State of Mont, and Crossroads Corr. Ctr., No. OP 23-0261, Order (Mont. May 23, 2023) (Ariegwe VI). We re-state that history here.
In Ariegwe I, we reversed the portion of Ariegwe's sentence requiring him to pay restitution and remanded the matter. Ariegwe /, H 182. Through counsel, Ariegwe sought an appeal in 2008, which we remanded upon the unopposed motion to remand. State v. Ariegwe, No. DA 08-0178, Order (Mont. Jun. 11, 2008). Ariegwe again sought to appeal the remanded judgment, and he later moved to dismiss the appeal voluntarily. State v. Ariegwe, No. DA 08-0363, Order dismissing appeal (Mont. Oct. 28, 2008).
In March 2004, a jury found Ariegwe guilty of attempted sexual intercourse without consent and unlawful transactions with children. The District Court sentenced Ariegwe to the Montana State Prison for a fifty-year term with fifteen years suspended. Through counsel, he appealed, raising three issues. This Court affirmed "the District Court's denial of Ariegwe's motion to dismiss for lack of a speedy trial. We also affirm[ed] the District Court's denial of Ariegwe's motion for a new trial." State v. Ariegwe, 2007 MT 204, U 182, 338 Mont. 442, 167 P.3d 815 (Ariegwe I). We reversed and remanded on the last issue of restitution. Ariegwe I, ¶¶ 176-182.
Ariegwe sought postconviction relief in the District Court. In March 2011, the District Court held an evidentiary hearing. The District Court denied his petition for postconviction relief, and Ariegwe appealed. Ariegwe v. State, 2012 MT 166, 365 Mont. 505, 285, P.3d 424 (Ariegwe II). This Court affirmed the court's denial and dismissal of Ariegwe's petition. Ariegwe II, ¶ 31.
In 2015, Ariegwe sought habeas corpus "relief from his 2004 conviction and challenging the effectiveness of all prior counsel." Ariegwe v. Batista and Kirkegard, No. OP 15-0642, Order (Mont. Aug. 18, 2015) (Ariegwe III). About four years later, Ariegwe filed a petition for extraordinary relief. We determined that "Ariegwe is relitigating his conviction, sentence, and prior appeal." Ariegwe v. State and McTighe, No. OP 19-0514, Order, (Mont. Sept. 24, 2019) (Ariegwe IV).
In March 2020, Ariegwe filed a petition for a writ of habeas corpus in the District Court that the court deemed a petition for postconviction relief. The District Court denied his second petition for postconviction relief, and Ariegwe appealed. Ariegwe v. State, No. DA 21-0027,2021 MT 210N, 2021 Mont. LEXIS 653 (Ariegwe V). We summarized his history of challenging his conviction through habeas corpus with this Court as well as in federal court. See Ariegwe V, ¶ 5. We affirmed the District Court, concluding that his claims were time-barred and procedurally barred. Ariegwe V, ¶14.
In his instant Petition, Ariegwe raises seven issues, which are very similar to the claims raised in his petition for postconviction relief, filed in the District Court three years ago. He raises four IAC claims; challenges the District Court's jurisdiction; contends that the State had false evidence and false testimony; and "his right to equal protection was violated when he was treated differently from two other 'similarly situated' individuals, who were later exonerated." See Ariegwe V, ¶ 6.
We conclude that Ariegwe is not entitled to habeas corpus relief. Section 46-22-101(2), MCA. As stated before, he is procedurally barred to raise such issues when he has exhausted the remedy of appeal. Ariegwe I, Ariegwe III, and Ariegwe IV. This Court has addressed his IAC claims previously. Ariegwe II, ¶¶ 14-30 and Ariegwe V, ¶¶ 6, 11-13. Any other issues, such as the court's jurisdiction or an equal protection violation, come too late and through the wrong remedy. Ariegwe V, ffl[ 6, 14. Ariegwe is also not entitled to appointment of counsel or oral argument in this original proceeding. Ariegwe VI, at 2-3.
We conclude that Ariegwe's motion is improper. He provides no rule or statute to support his request for a stay and abeyance. "Sections 46-20-204 and -205 [,MCA] govern stays in criminal cases." M. R. App. P. 22(6). Ariegwe does not qualify for relief, pursuant to § 46-20-204, MCA, because he has had a prior appeal. Montana statutes define the scope of an appeal by a defendant. "An appeal may be taken by the defendant only from a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant." Section 46-20-104(1), MCA. The District Court pointed out that "[t]wenty years have elapsed between trial and the filing of Ariegwe's Motion. Section 46-16-702, MCA." (Emphasis in original.) The court, citing to Montana law, concluded that Ariegwe's motion was untimely because "[t]here is no provision for extending this 30-day time limit." State v. Hammer, 2013 MT 203, ¶ 23, 371 Mont. 121, 305 P.3d 843."
We further conclude that Ariegwe's appeal is improper. In 2007, we affirmed the District Court's denial of a motion for a new trial. Ariegwe I, ¶182. Ariegwe has had his day in court. He cannot resurrect his criminal proceeding with an untimely motion in the sentencing court nor raise an issue that this Court has addressed previously. M. R. App. P. 19(1)(a). The District Court's Order does not affect his substantial rights.
Ariegwe has adjudicated and exhausted all his claims in the District Court and this Court. He has, thus, exhausted his remedies concerning his 2004 conviction and sentence. Accordingly, IT IS ORDERED that:
1. Ariegwe's Motion for A Stay and Abeyance is DENIED; and
2. sua sponte Ariegwe's appeal is DISMISSED with prejudice.
The Clerk is directed to provide a copy of this Order to counsel of record and to Kingsley Uromu-Okpe Ariegwe personally.