                                           No. 01-894

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 186N



DAVID L. BLAKE,

              Petitioner and Appellant,

         v.

MIKE MAHONEY, Warden, and the
STATE OF MONTANA,

              Respondents.




APPEAL FROM:         District Court of the Tenth Judicial District,
                     In and for the County of Judith Basin,
                     The Honorable E. Wayne Phillips, Judge presiding.

COUNSEL OF RECORD:

              For Appellant:

                     David L. Blake, Deer Lodge, Montana (pro se)

              For Respondents:

                    Mike McGrath, Montana Attorney General, Pamela P. Collins, Assistant
              Montana Attorney General; John P. Connor, Jr., Special Deputy Judith Basin
              County Attorney, James A. Hubble, Judith Basin County Attorney, Stanford,
              Montana



                                                           Submitted on Briefs: April 4, 2002

                                                                     Decided: August 27, 2002
Filed:


                     __________________________________________
                                       Clerk
Justice James C. Nelson delivered the Opinion of the Court.


¶1      Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating

Rules, the following decision shall not be cited as precedent. The decision shall be filed as a public

document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court

cause number, and result to the State Reporter Publishing Company and to West Group in the

quarterly table of noncitable cases issued by this Court.

¶2      David Blake (Blake) appeals the denials of his petitions for a writ of habeas corpus and, in

the alternative, for postconviction relief by the Tenth Judicial District Court, Judith Basin County.

We affirm.

¶3      We address the following issues on appeal:

¶4      1. Did the District Court err in denying the petition for a writ of habeas corpus?

¶5      2. Did the District Court err in denying the petition for postconviction relief?

                    I. FACTUAL AND PROCEDURAL BACKGROUND

¶6      Blake was charged with and pled guilty to the deliberate homicide of Hobson rancher,

Wayne Stevenson (Stevenson). Blake admitted that on or about March 27, 1994, he shot Stevenson

with a .22 caliber rifle, buried Stevenson’s body, and made a ransom call to his wife. The district

court sentenced Blake to eighty years for the homicide and added ten additional years for the use of

a weapon. The court ordered that the sentences run consecutively and that Blake be ineligible for

parole or participation in a supervised release program. Judgment was entered on November 18,

1994.

¶7      Previous to this action, Blake directly appealed the judgment against him, arguing that the

district court erred in denying him eligibility for parole or participation in a supervised release

                                                  2
program. We affirmed the trial court sentence, concluding that the court did not abuse its discretion

in setting Blake’s sentence. State v. Blake (1995), 274 Mont. 349, 353, 908 P.2d 676, 678.

¶8      On July 13, 2001, Blake filed in District Court the petitions at issue here: a petition for writ

of habeas corpus or, in the alternative, a petition for postconviction relief. Blake argued that the ten-

year sentence enhancement for the use of a weapon was improper under Apprendi v. New Jersey

(2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and that ineffective assistance of counsel

induced him to plead guilty.

¶9      The District Court denied the petition for writ of habeas corpus on the grounds that the writ

is not available to challenge the validity of a sentence when the person has been adjudged guilty in a

court of record and exhausted the remedy of appeal. The court also denied the petition for

postconviction relief on numerous grounds. Blake now appeals these denials.

                                   II. STANDARD OF REVIEW

¶10     This Court reviews conclusions of law integral to a trial court’s dismissal of a petition for

postconviction relief, as we review any other conclusion of law, to determine whether the

conclusions are correct. Dawson v. State, 2000 MT 219, ¶ 18, 301 Mont. 135, ¶ 18, 10 P.3d 49, ¶

18. We review a trial court’s findings of fact regarding postconviction relief to determine whether

the findings are clearly erroneous. State v. Wright, 2001 MT 282, ¶ 9, 307 Mont. 349, ¶ 9, 42 P.3d

753, ¶ 9; State v. Sheppard (1995), 270 Mont. 122, 127, 890 P.2d 754, 757.

                                          III. DISCUSSION

¶11     1. Did the District Court err in denying the petition for a writ of habeas corpus?

¶12     Under § 46-22-101(2), MCA, the writ of habeas corpus is not available to challenge a

conviction or sentence of a defendant convicted in a court of record who has also exhausted their


                                                   3
remedy of appeal. See also Rudolph v. Day (1995), 273 Mont. 309, 311, 902 P.2d 1007, 1008. In

this case, Blake was convicted in a court of record and he exhausted his remedy of appeal as

demonstrated in Blake, 274 Mont. at 353, 908 P.2d at 678. Therefore, the District Court properly

denied the writ of habeas corpus in concluding that the writ is not available to Blake.

¶13     2. Did the District Court err in denying the petition for postconviction relief?

¶14     Blake first asserts that under Apprendi, the trial court erred in adding an additional ten years

to his sentence for the use of a weapon because the court did not submit the facts justifying this

increased sentence to a jury. Blake next argues that his plea was involuntary due to ineffective

assistance of counsel. He asserts his defense counsel failed to explain the difference between

deliberate homicide and mitigated deliberate homicide and also led him to believe that he would be

eligible for parole after five years.

¶15     The District Court held that Blake was time-barred from pursuing a petition for

postconviction relief by the five-year statute of limitation and that the exception for newly

discovered evidence of innocence did not apply to Blake because the exception only applied to

actual, as opposed to legal, innocence. The court also held that Blake was procedurally barred from

postconviction review because he did not raise these arguments in direct appeal and that Apprendi

does not apply retroactively to Blake.

¶16     We have previously held that defendants convicted prior to April 24, 1997, are subject to a

five-year statute of limitation in seeking postconviction relief. Hawkins v. Mahoney, 1999 MT 82, ¶

10, 294 Mont. 124, ¶ 10, 979 P.2d 697, ¶ 10; § 46-21-102, MCA (1991). Therefore, Blake had until

November 18, 1999, to file his petition, five years from the date judgment was entered against him.

Blake filed the petitions at issue here on July 13, 2001. Consequently, Blake missed the deadline


                                                   4
and is time-barred from seeking postconviction relief.

¶17    The only exception to this statute of limitation is when there is a fundamental miscarriage of

justice such that a jury could find, under new evidence, that the defendant is innocent of the crime.

State v. Redcrow, 1999 MT 95, ¶¶ 33-37, 294 Mont. 252, ¶¶ 33-37, 980 P.2d 622, ¶¶ 33-37. This is

a narrowly interpreted exception that focuses on actual innocence. Redcrow, ¶ 37; see also State v.

Nichols, 1999 MT 212, ¶ 21, 295 Mont. 489, ¶ 21, 986 P.2d 1093, ¶ 21 (issues regarding sentence

enhancement do not equate to “actual” innocence) overruled on other grounds by State v.

Whitehorn, 2002 MT 54, 309 Mont.63, 50 P.3d 121.

¶18    In this case, Blake has not presented any evidence that he was actually innocent of the crime

for which he pled guilty. Blake’s arguments regarding the sentence enhancement and ineffective

assistance of counsel have nothing to do with his innocence. In fact, like the sentence enhancement

issue in Nichols, there is no dispute here regarding whether Blake used a weapon. Further, Blake’s

argument that his counsel lead him to believe he would be paroled in five years has nothing to do

with innocence.

¶19    In addition, while Blake asserts that his counsel failed to inform him of the difference

between mitigated deliberate homicide and deliberate homicide, again, the distinction between the

two does not involve actual innocence. Rather, both types of crimes involve purposely or knowingly

causing the death of another human being. Compare § 45-5-102, MCA, and § 45-5-103, MCA.

Therefore, we hold that the District Court’s determination that Blake’s arguments did not involve

actual innocence is supported by substantial evidence. Accordingly, there was no fundamental

miscarriage of justice in this case that would fit the exception to the five-year statute of limitation.

Consequently, the District Court was correct in deciding that postconviction relief is no longer


                                                   5
available to Blake. Because we hold that the District Court correctly determined Blake was time-

barred and did not meet an exception to the time-bar, we do not consider the merits of the other

grounds cited by the District Court.   IV. CONCLUSION

¶20    The District Court correctly determined that the writ of habeas corpus was not available to

Blake and that Blake was time-barred from pursuing a petition for postconviction relief.

¶21    We affirm.


                                                            /S/ JAMES C. NELSON


We Concur:


/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




                                                6
