Rudolph v. Day, 95-281

• Decision Date: 29 August 1995
• Docket Number: No. 95-281,95-281
• Citation: 52 St.Rep. 988,902 P.2d 1007,273 Mont. 309
• Parties: Randall Mark RUDOLPH, Petitioner, v. Rick DAY, Administrator, Department of Corrections, Respondent.
• Court: Montana Supreme Court

Page 1007

902 P.2d 1007

273 Mont. 309

Randall Mark RUDOLPH, Petitioner, v. Rick DAY, Administrator, Department of Corrections, Respondent.

No. 95-281.

Supreme Court of Montana.

Aug. 29, 1995.

ORDER

Randall Mark Rudolph (Rudolph), pro se, has filed herein his petition for writ of habeas corpus. The Attorney General of the State of Montana and legal counsel for the Department of Corrections has responded on behalf of the State.

In October 1987, Rudolph was convicted after a jury trial, of robbery and sentenced to a term of years at the Montana State Hospital in lieu of prison incarceration. Rudolph was designated a dangerous offender for purposes of parole eligibility. We denied his petition for writ of habeas corpus pending appeal on February 14, 1989, and subsequently confirmed his conviction on direct appeal. State v. Rudolph (1989), 238 Mont 135, 777 P.2d 296. Rudolph's petition for federal habeas corpus relief was subsequently denied by both the United States District Court and the United States Court of Appeals for the Ninth Circuit. His motion to reconsider was denied by the United States District Court.

Eight years following his conviction, on June 8, 1995, Rudolph filed in this Court the instant petition for writ of habeas corpus. In that petition Rudolph raises three issues:

1. denial of effective assistance of counsel for failure to examine the issue of the show-up identification procedure in light of Stovall v. Denno (1967), 388 U.S. 293;

2. the show-up identification procedure was impermissibly suggestive; and

3. his good time credit was improperly calculated.

At the outset we note that the issue of the pretrial identification procedure was discussed in detail in our opinion on Rudolph's direct appeal. Rudolph, 777 P.2d at 298-300. Moreover, in denying Rudolph's motion for reconsideration on April 30, 1994, the United States District Court stated that the Stovall opinion was obviously available to all of the parties during the original proceedings and that it was, in any event, not the leading case on the point of law at issue--the show-up identification procedure.

A petition for writ of habeas corpus may be filed to inquire into the cause of imprisonment or restraint. Section 46-22-101, MCA. While habeas corpus is available to determine the legality or illegality of the restraint alleged, Wells v. Stanger (1949), 123 Mont. 26, 31, 207 P.2d 549, 551, the writ 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 who has exhausted his remedy of appeal. Section 46-22-101(2), MCA; Duncan v. State (1990), 243 Mont. 232, 233, 794 P.2d 331, 332.

Issues 1 and 2 in Rudolph's petition challenge the validity of his conviction and sentence. It is clear that he has been adjudged guilty of an offense in a court of record and, also, that he has exhausted his remedy on appeal. Accordingly, Rudolph's petition for writ of habeas corpus is barred and is appropriately dismissed. Section 46-22-101(2), MCA.

Notwithstanding that Rudolph's petition for writ of habeas corpus is specifically barred by statute, we may nevertheless treat his petition as one for post conviction relief. Tecca v. McCormick (1990), 246 Mont. 317, 318, 806 P.2d 11, 12. In doing so, however, we conclude that Rudolph's claims are untimely. Section 46-21-102, MCA, provides that a petition for post conviction relief "may be filed at any time within five years of the date of conviction." In this case, Rudolph was convicted in 1987 and accordingly, his June 8, 1995 petition for post conviction relief is clearly time-barred under § 46-21-102, MCA.

Furthermore, Rudolph's second issue, the claim that the show-up identification procedure was...