                                                                                        November 9 2011


            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         DA 11-0651

                                      2011 MT 283
                                   _________________

BILL GENE THOMAS,

             Petitioner and Appellant,
                                                                   OPINION
      v.                                                             AND
                                                                    ORDER
JOHN DOE, Warden of Montana State Prison,

             Respondent and Appellee.
                                _________________

¶1     Bill Gene Thomas is currently incarcerated in Montana State Prison serving a
sentence imposed in 1993 for deliberate homicide. On September 23, 2011, Thomas filed a
Petition for Writ of Habeas Corpus in the Third Judicial District Court, Powell County,
raising various claims. The District Court issued an order on October 13 denying the
petition.
¶2     On October 31, Thomas filed a Notice of Appeal with the Clerk of the Supreme
Court. In conjunction with this notice, Thomas also filed his Appellant’s Brief. All briefs
filed with the Clerk of this Court are reviewed by Court personnel to determine whether they
comply with the form and content requirements set forth in Rules 10, 11, 12, and 13 of the
Montana Rules of Appellate Procedure. A brief that is not in compliance with these Rules is
returned for revisions. Although Thomas’s Appellant’s Brief is not in conformance with the
Rules for a number of reasons, a more important matter has come to the Court’s attention in
the course of reviewing his brief. In particular, it is apparent that Thomas’s appeal is from
an order of a district court denying a petition for writ of habeas corpus.
¶3     A district court’s denial of a petition for writ of habeas corpus in a criminal
proceeding is not appealable to this Court. Morrison v. Mahoney, 2002 MT 21, ¶ 8, 308
Mont. 196, 41 P.3d 320 (citing Coble v. Magone, 229 Mont. 45, 46, 744 P.2d 1244, 1245


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(1987), in turn citing In re Hart, 178 Mont. 235, 583 P.2d 411 (1978)). This is so because a
writ of habeas corpus may be granted by either a district court or this Court and, as a result,
the denial of such a writ by a district court is not res judicata because it does not divest us of
jurisdiction to grant a subsequent petition. Morrison, ¶ 8 (citing Hart, 178 Mont. at 241, 583
P.2d at 414, and § 46-22-202(1), MCA).
¶4     While recognizing these principles, the State has previously suggested that, in the
interests of judicial economy, we should simply treat an appeal from a district court’s denial
of a habeas corpus petition as an original proceeding in this Court, that is, as an original
petition for writ of habeas corpus. We adopted that suggestion in Johnson v. Mahoney, 2009
MT 275, ¶ 5, 352 Mont. 136, 217 P.3d 1025. Similarly, we assumed, arguendo, in Morrison,
¶ 9, that the case was properly before us as an original petition for writ of habeas corpus. See
also e.g. Allison v. State, No. OP 10-0127, 2010 Mont. LEXIS 520 at *4 (Sept. 7, 2010)
(“We accept the Attorney General’s invitation to consider Allison’s appeal as an original
petition for a writ of habeas corpus.”); Coble, 229 Mont. at 46, 744 P.2d at 1245 (“A denial
of a writ of habeas corpus is not properly appealable to this Court. However, due to the
nature of this claim, and in light of judicial economy, we will review the case as a petition
for writ of certiorari.” (citation omitted)).
¶5     In Roberty v. State, No. DA 10-0220 (Mont. Dec. 8, 2010), which also involved an
appeal from a district court’s denial of a habeas corpus petition, we acknowledged the
practice followed in Johnson of treating such appeals, in the interest of judicial economy, as
original proceedings in this Court. We declined, however, to continue this practice. Roberty
at 2 (dismissing the appeal with prejudice). We explained that this Court “remains open to
petitioners who seek to file a petition for writ of habeas corpus. We will not continue to
consider a party’s appeal from a district court’s denial of a petition for writ of habeas corpus
as an original petition. A party must file in this Court an original petition for writ of habeas
corpus in order for us to consider it.” Roberty at 2.
¶6     Our decision in Roberty was issued in the form of an unpublished order. We now
reiterate and adopt, in the present Opinion and Order, the following rules. There is no appeal
from a district court’s denial of a petition for writ of habeas corpus. Morrison, ¶ 8. A writ of


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habeas corpus may be granted by either a district court or this Court. See § 46-22-202(1),
MCA. Thus, the denial of such a writ by a district court is not res judicata because it does
not divest us of jurisdiction to grant a subsequent petition. Morrison, ¶ 8. We will not
follow the practice in Johnson, Allison, and other cases of treating an appeal from the denial
of a habeas corpus petition as an original habeas corpus proceeding in this Court. A party
must file an original petition for writ of habeas corpus in order for us to consider it.
Accordingly,
¶7     IT IS ORDERED that Thomas’s motion to proceed on appeal without payment of the
filing fee is GRANTED.
¶8     IT IS FURTHER ORDERED that Thomas’s appeal from the District Court’s order
denying his Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE.
¶9     IT IS FURTHER ORDERED that Thomas’s motion for the appointment of counsel is
moot and is, therefore, DENIED.
¶10    The Clerk of this Court is directed to provide a copy of this Opinion and Order to
counsel of record, to the Attorney General, and to Bill Gene Thomas, personally, and to give
notice of this Opinion and Order to the Honorable Ray J. Dayton, District Court Judge,
presiding.
       Dated this 9th day of November, 2011.

                                                  /S/ JAMES C. NELSON

We concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
/S/ BRIAN MORRIS




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