                                                                                         03/24/2020

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                                                     Case Number: OP 20-0143
                                       OP 20-0143


 CHARLES EDWARD CLARY,                                                   MAR 2 if 2020
                                                                      Bowen Greenwood
                                                                    Clerk of Supreme Court
                                                                       State of Montana
              Petitioner,

       v.
                                                                    ORDER
 STATE OF MONTANA,LYNN GUYER,
 Warden, Montana State Prison,

              Respondents.
                                                              ORIGINAL
       Representing himself, Charles Edward Clary petitions this Court for habeas corpus
relief because he states that his sentence is illegal. Clary challenges his conviction based
on his objection to the probable cause determination in his underlying criminal case. We
amend the caption to include the Warden's name at the Montana State Prison where Clary
is currently incarcerated. Section 46-22-201(1)(c), MCA.
       Clary is currently serving a thirty-year prison term for convictions of aggravated
burglary and two counts of assault with a weapon, after a jury found him guilty in 2010, in
the Eighth Judicial District Court, Cascade County. These convictions are the basis of his
petition. Clary appealed, and this Court affirmed. State v. Clary, 2012 MT 26, ¶ 32, 364
Mont. 53, 270 P.3d 88.
       Clary contends that he "has been diligently pursuing a miscarriage ofjustice with
the unconstitutional, no [warrant], no probable cause,'oath or affirmation' mythology that
permits the Montanajudicial branch to[supersede]the 4th Amendment ofthe United States
Constitution." He refers to an 1897 case, supporting his argument that he objected at trial,
when he represented himself in the District Court, to the "unverificatioe of arrest because
he was charged with a felony crime without a Gerstein hearing. State ex reL Nolan v.
Brantly, 20 Mont. 173, 50 P. 410 (1897); see Gerstein v. Pugh,420 U.S. 103, 114, 95 S.
Ct. 854, 863 (1975)(the high court held "that the Fourth Amendment requires a judicial
determination of probable cause as a prerequisite to extended restraint of liberty following
arrest.").
       Clary's challenges to his convictions come too late to this Court. The habeas corpus
statute bars "a person who has been adjudged guilty of an offense in a court of record and
has exhausted his remedy of appeal[J" to attack the validity ofthe conviction or sentence.
Section 46-22-101(2), MCA. Clary's issue challenging a probable cause determination
could have been raised in his initial appeal. We point out that Clary had a judicial
determination of probable cause when the District Court granted the State leave to proceed
with its charging documents.      Clary, ¶ 5. See § 46-10-105(2), MCA and State v.
Montgomery, 2015 MT 151, ¶ 11, 379 Mont. 353, 350 P.3d 77. Clary is barred to raise
any such claim through a writ of habeas corpus. Lott v. State, 2006 MT 279, ¶ 19, 334
Mont. 270, 150 P.3d 337. Therefore,
       IT IS ORDERED that Clary's Petition for a Writ ofHabeas Corpus is DENIED and
DISMISSED.
       The Clerk is directed to provide a copy of this Order to counsel of record and to
Charles Edward Clary Raonally.
       DATED this t-5-1 day of March,2020.




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                                                                        - AALL
                                                                 Justices




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