C. Bird v. Salmonsen ( 2021 )

05/18/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 21-0220
OP 21-0220
F 11
CLIFFORD BIRD, SR.,
MAY 1 8 2n21
Petitioner, Bowen Grc- .•
Clerk of Supr
State of Mil ni a r
v.
ORDER
JIM SALMONSEN, Warden,
MONTANA STATE PRISON,
Respondent.
Clifford Bird, Sr., has filed a Petition for Writ of Habeas Corpus and a Motion to
Vacate'Sentences. Bird argues that a conflict ofinterest exists because his defense counsel
with his first criminal case became the prosecuting attorney in his second case.
Available electronic records indicate that on November 10, 2009, Bird received a
six-year suspended sentence to Montana State Prison (MSP) for issuing bad checks by
common scheme. The Seventh Judicial District Court, Dawson County, also ordered him
to attend and complete its Drug Treatment Court. In May 2010,the Drug Treatment Court
terminated Bird because of failure to appear, non-compliance, and failure to complete his
programming, including his recommended in-house treatment at a treatment center in
North Dakota. On September 21, 2010, the District Court sentenced Bird upon revocation
to a six-year MSP sentence. Bird did not appeal.
After sentencing, Bird remained in the Dawson County Correctional Facility. The
State charged Bird with six offenses in February 2011, and in August 2011, the State
amended the charges to three felonies, alleging criminal distribution of dangerous drugs
with intent to distribute by accountability; transferring an illegal article by accountability;
and transferring an illegal article by accountability, while he was incarcerated. On
November 16, 2011, the District Court held a sentencing hearing, accepted Bird's guilty
pleas, and sentenced Bird to concurrent, unsuspended MSP terms of seven years,
three years, and thirteen months, respectively. This sentence was to run consecutively to
his six-year MSP sentence upon revocation. Bird did not appeal his convictions or
sentence.
Bird now raises issues of a conflict of interest and ineffective assistance of counsel.
He explains that in 2009, his defense counsel for his first criminal case became the
"Head Prosecuting Attorney for Dawson County in January 2010. He states that a conflict
exists because this attorney "First represent[ed][him]then Prosecut[ed][him]." He further
states that his subsequent defense counsel did not object. Bird offers that he never touched
or transferred the marijuana or tobacco in the County jail. Bird contends that this
miscarriage ofjustice and these constitutional wrongs should be corrected.
Bird brings his claims through the wrong remedy. Any challenge, such as a conflict
ofinterest regarding attorney representation, should have been brought in an appeal where
the complete record is available. See State v. Deschon,2002 MT 16, ¶ 18, 308 Mont. 175,
40 P.3d 391 ("Such conflict must be proved through a factual showing on the record.")
(citation omitted). As Bird acknowledges, his defense counsel did not object at the time
during his second criminal case. We point out that Bird has then waived such challenge.
Bird cannot demonstrate an actual conflict as necessitated by Montana case law.
Deschon, ¶ 18; Thurston v. State, 2004 MT 142, n 17-18, 321 Mont. 411, 91 P.3d 1259.
Bird also waived any claim concerning the 2011 felony charges. We further point out that
the Deputy County Attorney, not the County Attorney, prosecuted Bird's second criminal
case in Dawson County.
Bird's claims are brought too late for this Court to consider. Habeas corpus is not
the remedy to correct constitutional anomalies, given that Bird pleaded guilty to the
offenses more than a decade ago, thereby waiving any constitutional claims.
Gates v. Missoula Co. Comm jrs, 235 Mont. 261, 262, 766 P.2d 884, 884-85 (1988) and
State v. Violette, 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804. He is not entitled to be
released from state custody. Bird is barred from raising such challenges in his petition for
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habeas corpus relief because he has exhausted the remedy of appeal.
Section 46-22-101(2), MCA. Bird has not demonstrated illegal incarceration.
IT IS ORDERED that Bird's Petition for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED that Bird's Motion to Vacate Sentences is DENIED
and DISMISSED.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Clifford Bird Sr. personally.
DATED this la day of May,2021.
Chief Justice
e94 A1 AIL
Justices
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