                        No.   92-556 and 32-612
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1333




IN RE THE PETITION OF
CHESTER R. BAUER,




APPEAL FROM:   District Court of the Second Judicial District,
               In and for the County of Silver Bow,
               The Honorable Mark P. Sullivan, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Chester R. Bauer, Deer Lodge, Montana; Pro Se
          For Respondent:
               Honorable Joseph P. Mazurek, Attorney General;
               Barbara Harris, Assistant Attorney General, Helena,
               Montana; Bob McCarthy, Silver Bow County Attorney,
               Butte, Montana




                                Submitted on Briefs:   March 11, 1993
                                            Decided:   May 6 , 1 9 9 3
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

     This is an appeal from the Second Judicial District Court,
Butte-Silver Bow County, denying the petitioner a hearing for post-
conviction relief.   We affirm.
     The only question on appeal is whether appellant is legally
permitted to submit this second petition for post-conviction relief
nine years after his conviction and sentencing.
     On July 17, 1983, Chester R. Bauer (Bauer) was convicted by a
jury of sexual intercourse without consent and aggravated assault.
He appealed his conviction and this Court affirmed in State v.
Bauer (1984), 210 Mont. 298, 683 P.2d 946. Subsequently on January
14, 1986, Bauer filed a petition for post-conviction relief with
this Court which was denied on February 20, 1986. The order is in
the Supreme Court file.
     In October of 1992, Bauer again petitioned for post-conviction
relief, this time with the Second Judicial District Court.     Bauer
also filed the same petition with this Court.   The District Court
denied Bauer's petition because Montana's statutory scheme allows
only five years in which post-conviction relief can be sought.
     Bauer claims that he does not remember filing the 1986
petition   for post-conviction relief and that his files were
destroyed in the 1991 riot at the prison.   His argument to us is
that he was not aware of the law.     Bauer's failure to remember
filing   the petition   for   post-conviction relief   in   1986   is
irrelevant.   This Court still holds the original order, a copy of
which was attached to the State's brief.
                                  2
     The legislature in         1981 amended     the   statxtes on post-
conviction relief to contain a five year limit on petitions. Bauer
was convicted in 1983.     Bauer argues that this Court subsequently
denied the validity of the limit placed on post-conviction relief
in State v. Perry (i988), 232 Monc. 455, 758 P.2d 268.             Bauer has
not read the case carefully.
     In    w , pleading
             the                      involved was specifically marked
Petition for New Trial or Otner Appropriate Relief.                The State
argued it was really a petition for post-conviction relief.              This
Court determined that it was not in actuality a petition for such
relief. We noted that the petition was more akin to that of habeas
corpus, although technically it was not a petition for habeas
corpus.
     The purpose of a writ of habeas corpus is to determine the
legality or illegality of the restraint alleged.          It is available
only to persons unlawfully imprisoned or restrained of their
liberty.     August v. Burns (1927), 79 Mont. 198, 255 P. 737.             A
petition for this writ must state that the petitioner is unlawfully
imprisoned    or   restrained    of    liberty   in    violation    of   his
constitutional rights and must state why the restraint is unlawful.
Section 46-22-201, MCA.    See also, Perry at 210 Mont. at 462.
      We note that in   PerrV on which Bauer relies, the co-defendant
at the original trial whose testimony helped convict Perry,
recanted his testimony 17 years after the homicide.                  Perry's
petition stated that he was being improperly restrained because the
recantation proved him innocent.           We determined that the co-
defendant recanted only after he was told that Perry was being sent
to the same prison, and that the recantation was without merit.
     Here Bauer has not alleged unlawful restraint.      He has filed
for post-conviction relief and claims his sentence is being
impossed in violation of the laws of the state or the U.S.
Constitution.    In order to qualify for a post-conviction relief,
the defendant must have no adequate remedy of appeal.     Section 46-
21-101, MCA.    Bauer appealed his conviction in 1984.
     Further, we have previously stated:
     While the mandate of due process and Article 11, Section
     16 of the Montana Constitution guarantees every person
     access to the courts, it cannot be said that such rights
     grant a person license to relitigate a cause or to burden
     the resources of the court with successive claims which
     could have been brought in one action.
m, 232     Mont. at 463.      The time limit that the legislature
placed upon post-conviction relief in 46-21-102, MCA, was an
attempt to end the continuing relitigation of issues already
finally determined. Similarly, the public interest in finality of
judgments also weighs heavily against serial litigation.      Perry,
210 Mont. at 463, citing Murray v. Carrier (1986), 477 U.S. 478,
106 S.Ct. 2639, 91 L.Ed.2d 397, Our task as a reviewing court is
not to change the legislature's clear directive that petitions for
post-conviction relief be filed within five years. That statute is
clear and needs no further interpretation.
    We also note that on the pre-printed forms given to prisoners
at the prison and based upon   §   46-21-101, MCA, the following is
printed at the very top of the form:
                      Instructions--Read Carefully
     (1) A petition for post-conviction hearing may be filed
     at any time within 5 years of the date of conviction.
Thus, even   if   Bauer did   not   remember the   1986 order, the
instructions he read and the petition he filled out were ample
notification of this legislative directive.
     Most of Bauer's issues were decided on appeal to this Court in
State v. Bauer.   The rest are issues which could have been brought
up on appeal but were not. We conclude that the entire twenty-four
page petition contains nothing but arguments concerning what
happened before trial or during trial.     Such arguments are not
proper in a habeas corpus proceeding and are certainly barred by
the limitation of five years on petitions for post-conviction
relief.
     We hold that the District Court did not err in denying Bauer's
petition for post-conviction relief,
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.
     Affirmed.



We Concur:
                                          May 6, 1993

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Chester R. Bauer
700 Conley Lake Rd.
Deer Lodge, MT 59722


Hon. Joseph P. Mazurek, Attorney General
Kathy C. Seeley, Assistant
215 N. Sanders, Justice Building
Helena, MT 59620

Brad Newman, County Attorney
Silver Bow County Courthouse
Butte, MT 59701


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
