J. Mulligan v. State ( 2021 )

01/12/2021 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0617 DA 20-0617 FILED JOHN ALBERT MULLIGAN, JAN 1 2 2021 Petitioner and Appellant, Bowen Greenwood Clerk of Supreme Court State of IVIontana v. ORDER STATE OF MONTANA, Respondent and Appellee. John Albert Mulligan petitions this Court for an out-of-tirne appeal. As grounds, he explains that the Montana State Prison has been in lockdown and that he could not access inforrnation or forrns to pursue a timely appeal. He also moves for appointment of counsel. Mulligan includes several attachrnents. M. R. App. P. 4(6) provides that "[i]n the infrequent harsh case and under extraordinary circurnstances, arnounting to a gross miscarriage ofjustice,the supreme court may grant an out-of-tirne appeal." Mulligan seeks to appeal an October 29, 2020 Missoula County District Court Order disrnissing his petition for postconviction relief because Mulligan failed to prosecute any clairns. Mulligan is not entitled to an out-of-time appeal because he has not dernonstrated extraordinary circumstances. M.R. App.P. 4(6). He did not argue his concerns below and has not demonstrated the necessity of an appeal here. His attachrnents provide more inforrnation. The crux of his argurnent concerns the ten-month delay between his oral pronouncement of sentence on revocation on August 16, 2018, and obtaining a written judgment, filed on June 24, 2019. Mulligan contends that this delay in receiving his written judgment affected his parole eligibility calculation and his sentence should be vacated. Mulligan has since obtained a copy of the written judgment as dernonstrated in his attachments. Mulligan's rnotion cannot proceed either. He represented himself in District Court. Mulligan is not entitled to appointrnent of counsel in a postconviction proceeding, such as this. Section 46-8-104(1), MCA. Mulligan, however, retains a rernedy. Mulligan may seek relief for any sentence calculation error through filing a petition for a writ of habeas corpus. If he were to file such a pleading, Mulligan rnust inforrn this Court with the written reasons and argurnents about any alleged illegal incarceration. Accordingly, IT IS ORDERED that Mulligan's Petition for an Out-of-Time Appeal is DENIED. IT IS FURTHER ORDERED that his Motion for Appointment of Counsel is DENIED. The Clerk ofthe Suprerne Court is directed to provide a copy ofthis Order to counsel of record and to John Albert Mulligan along with a copy of this Court's Instructions and Petition for a Writ of Habeas Corpus forrn. DATED this L., day of January, 2021. Chief Justice ustice 2