Jones v. State of Montana, 1160.

• Decision Date: 02 July 1964
• Docket Number: No. 1160.,1160.
• Parties: LeRoy H. JONES, Petitioner, v. STATE OF MONTANA and Edward Ellsworth, Jr., Warden of the Montana State Prison, et al., Respondents.
• Court: U.S. District Court — District of Montana

231 F. Supp. 531

LeRoy H. JONES, Petitioner, v. STATE OF MONTANA and Edward Ellsworth, Jr., Warden of the Montana State Prison, et al., Respondents.

No. 1160.

United States District Court D. Montana, Butte Division.

July 2, 1964.

Krest Cyr, Butte, Mont., for petitioner.

Forrest H. Anderson, Atty. Gen., of State of Montana, for respondents.

MURRAY, Chief Judge.

Petitioner, an inmate of Montana State Prison, again seeks leave to file in forma pauperis another petition for Writ of Habeas Corpus and moves for the appointment of counsel. In the interest of orderly procedure and keeping proper court records, leave to file said petition without prepayment of costs is granted.

A recital of petitioner's numerous petitions in this and other courts is contained in the decision of the Montana Supreme Court in In re Jones Petition, Mont., 386 P.2d 747, decided November 21, 1963, rehearing denied December 27, 1963, 387 P.2d 912. Since the last decision of the Montana Supreme Court, motions by petitioner in the District Court of the Seventeenth Judicial District of the State of Montana for withdrawal of his plea of guilty and to vacate judgment were denied by order of that court dated March 13, 1964, rehearing denied by order of April 20, 1964.

The grounds alleged for the present petition are

"1. Illegal search and seizure,

"2. Examination and bail,

"3. Incompetent to commit crime."

With regard to the first ground, illegal search and seizure, it is to be noted that petitioner was convicted on his plea of guilty, there was no trial and no evidence obtained as a result of the alleged illegal search and seizure was introduced against petitioner resulting in his conviction. "Complaints in regard to arrest and search are matters for defense * * *. One who pleads guilty waives these defenses and is not in a position to successfully move for a writ of habeas corpus on claims of alleged illegal arrest, search and seizure. Cf. United States v. Zavada, 291 F.2d 189 (6th Cir., 1961); United States v. Salzano, 241 F.2d 849 (2d Cir., 1957)." United States ex rel. Hazen v. Maroney, D.C., 217 F.Supp. 328 (1963).

Under ground 2, Examination and Bail, petitioner complains that he was denied a preliminary examination and denied bail. The question of the denial of a preliminary hearing was before presented to this court and ruled upon adversely to petitioner by the order of December 2, 1960, denying petition for writ of habeas corpus. Therefore, under the provisions of 28 U.S.C.A. § 2244, the court is not required to consider again this ground of the present petition. However, as pointed out in Judge Jameson's order of December 2, 1960, it is well settled that under Montana law, the State Court has the right to grant leave to file an information, as was done in petitioner's case, without previous examination by a committing magistrate. State ex rel. Juhl v. District Court, 107 Mont. 309, 84 P.2d 979, 120 A.L.R. 353.

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