                                                                                           03/10/2020


            IN TFIE SUPREME COURT OF THE STATE OF MONTANA                              Case Number: OP 20-0101


                                        OP 20-0101


SHANE PHILLIP NICKERSON,

              Petitioner,

       v.
                                                                      ORDER
LYNN GUYER, Warden,
Montana State Prison,                                             FILED
              Respondent.                                        MAR 1 0 2020
                                                               Bowen Greenwood
                                                                               Court
                                                             Clerk of Suprerne
                                                                State of Montana


       Representing himself, Shane Phillip Nickerson has filed a petition for a writ of
habeas corpus, whereby he asserts that his sentence is illegal and that he should be granted
immediate release from prison.
       In October 2009, a jury convicted Nickerson of four felonies: sexual assault,
aggravated assault, criminal endangerment, and assault on a minor. The Flathead County
District Court sentenced him to the Montana State Prison for a fifty-year term for sexual
assault and concurrent sentences oftwenty years, twenty years, and five years respectively
for the remaining felonies. Through counsel, Nickerson appealed. This Court remanded
the case to the District Court to strike his conviction for assault on a minor and the five-
year sentence because the State failed to prove an essential element of the offense. State
v. Nickerson, No. DA 10-0259, 2011 MT 85N,¶ 10, 2011 Mont. LEXIS 116. Nickerson's
remaining convictions and sentences were affirmed. Nickerson, ¶¶ 2, 12.
       In the instant petition, Nickerson seeks retroactive "collateral review and plain error
review to each conviction[1" He contends that several constitutional errors exist and that
his conviction for sexual assault is illegal because Montana statutes bar a subsequent
prosecution from the same transaction. He raises multiple claims: (1)that he was subjected
to double jeopardy when he was prosecuted for numerous counts; (2) that the jury
instructions did not include lesser-included offenses, and (3) that he had ineffective
assistance of counsel. Nickerson puts forth that his "subsequent prosecutiof for sexual
assault be vacated as a predicate offense. Kills on Top v. Guyer, No. OP 18-0656, 2019
Mont. LEXIS 292, Order (Mont. Jul. 31, 2019). The crux of his arguments concerns his
inability to be granted parole because he cannot complete phase two of the sex offender
program treatment due to his denials. He further argues that this "miscarriage ofjustice"
lifts any time bar to these issues presented in a habeas corpus petition.
       Nickerson's reliance on Montana case law from direct appeals does not provide him
legal authority to lift a procedural bar in an original proceeding, such as this. While
Nickerson correctly quotes the purpose of habeas corpus as challenging a facially invalid
sentence, he cannot demonstrate such an illegal sentence. Section 46-22-101(1), MCA.
All of his arguments are to his convictions, which we cannot review. His reference to this
Court's recent Kills on Top decision is not applicable either. Predicate offenses concern
forcible felonies and deliberate homicide. See § 45-5-102(1)(b), MCA. Sexual assault is
an included, but not a predicate, offense of sexual intercourse without consent. State v.
Williams, 2010 MT 58, ¶ 28, 355 Mont. 354, 228 P.3d 1127. Lastly, habeas corpus is not
an appropriate remedy for constitutional issues. Gates v. Missoula County Comm'rs, 235
Mont. 161, 261-62,766 P.2d 884, 884-85 (1988).
       Nickerson brings his claims too late and via the wrong remedy of habeas corpus.
Section 46-22-101(2), MCA. This statute bars a person "who has been adjudged guilty of
an offense and . . . has exhausted his remedy of appeal, to attack the validity of his
sentence." Lott v. State, 2006 MT 279, ¶ 19, 334 Mont. 270, 150 P.3d 337. The issues
Nickerson raise here could have been raised in his initial appeal. We point out that this
Court addressed two issues of ineffective assistance of counsel in his appeal, determining
that the first issue was moot and the second was without merit. Nickerson,   n 10-11. By
appealing, Nickerson has exhausted the remedy of appeal and cannot now attack the
sentences for his convictions. We observe that Nickerson has an appeal pending ofa recent
denial of his petition for postconviction relief from the Flathead County District Court.
Nickerson v. State, No.DA 20-0129, Notice of Appeal filed Mar. 2, 2020. Therefore,

                                              2
      IT IS ORDERED the Petition for a Writ of Habeas Corpus is DENIED and
DISMISSED.
      The Clerk is directed to provide a copy of this Order to counsel of record and to
Shane Phillip Nickerson.
      DATED this 16 day of March, 2020.



                                                           Chief ustice




                                                             Justices




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