Aliff v. Warden Salmonsen ( 2023 )

06/27/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 23-0318
OP 23-0318
DAVID RUSSELL ALIFF, JUN 2 7 2023
Bovven G n•rrs od
Clerk of Crorerne Court
Petitioner, State of Montana
v.
ORDER
JAMES SALMONSEN, Warden,
Montana State Prison,
Respondent.
David Russell Aliff has filed a Petition for Writ of Habeas Corpus. Aliff contends
that his convictions for sexual intercourse without consent and assault with a weapon,
adjudged along with his conviction of atternpted deliberate homicide, should be vacated,
and his case remanded to the First Judicial District Court, Lewis and Clark County, for
resentencing.
In January 1999, a jury convicted Aliff of attempted deliberate homicide and sexual
intercourse without consent. The District Court sentenced Aliff to the Montana State
Prison to two, consecutive life terms. The court imposed a sentencing enhancement of ten
years for the use of a weapon during the comrnission of an offense, pursuant to
§ 46-18-221, MCA. In the written judginent, the court stated its intention was that Aliff
was to spend the remainder of his life in Montana State Prison.
Aliff appealed, raising the singular issue of whether his "trial counsel was
ineffective for not offering an alternative jury instruction regarding the offense of
aggravated assault, resulting in unfair prejudice." State v. Alff, 2001 MT 52, ¶ 2, 304
Mont. 310, 21 P.3d 624. We affirmed, concluding the issue was one of trial strategy. Aliff,
¶112, 13, 17. We reasoned:
Aliff contended to the end that he did not perpetrate these crimes, that he was
home resting peacefully in his bed with his wife at the time [M.H.] was
fighting for her life in sub-freezing temperatures, her throat cut from ear to
ear with his knife, tire tracks marking her body from his car. Even in the face
of a daunting evidentiary record, with [M.H.'s] blood found on his pants, his
knife and his car, and his semen found in her body, Aliff did not claim that
he only intended to assault [M.H.]. Rather, he claimed he was innocent
because he did not commit the criines with which he was charged or any
other offense in connection with this incident. It is not ineffective assistance
of counsel to not offer a jury instruction that is inconsistent with the defense.
[State v.] Gonzales, 278 Mont. [525,] 532, 926 P.2d [705,] 710. We conclude
the same here.
Aliff,¶ 14.1
Aliff now contends these offenses were all part of the same transaction, pursuant to
§ 46-11-410, MCA, arguing the sexual intercourse without consent, use of a weapon, and
attempted deliberate homicide "took place on a continuous basis, involved the same victim,
and were all part of the same transaction . . . ." He also argues sexual intercourse without
consent is a lesser included offense of deliberate homicide. He thus asserts that these
convictions violate his right to be free from double jeopardy.
Aliff s positions lack inerit. First, Aliff is improperly collaterally challenging his
convictions after having exhausted the rernedy of appeal, more than two decades ago.
Section 46-22-101(2), MCA. Further, while he relies on our rulings in Kills on Top and
Lott, his case is clearly distinguished from the petitioner in Kills on Top, concerning the
felony murder rule, and in Lott, concerning a facial illegal sentence. Kills on Top v. Guyer,
No. OP 18-0656, 2019 Mont. LEXIS 292, Order, at *8-10 (Jul. 31, 2019) and Lott v. State,
2006 MT 279, ¶¶ 19-20, 334 Mont. 270, 150 P.3d 337. A district court has statutory
authority to irnpose an enhancement for use of a weapon when it is not an element of the
underlying offense. Section 46-18-221(1), MCA. Lastly, Aliff has not shown how sexual
intercourse without consent is a lesser included offense of attempted deliberate homicide.
Sections 45-5-102(1)(b), and 45-5-503(1), MCA (1997). Aliff did not receive multiple
1 Aliff has filed other pleadings with this Court. See Aliffv. Mahoney, No. 04-0174, Order denying
petition for habeas corpus relief (Mont. May 4, 2004) and State v. Aliff, No. DA 08-0165, Order
dismissing improper appeal (Mont. Dec. 10, 2008).
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punishments for the same offense. See State v. Goodenough, 2010 MT 247, ¶ 25, 358
Mont. 219, 245 P.3d 14 ("Even if 'continuing course of conduct' and 'same transaction'
meant the same thing, § 46-11-410, MCA, makes it clear that a defendant may be convicted
of multiple offenses arising from the same transaction."). Thus, Aliff's double jeopardy
rights have not been violated.
Aliff has not demonstrated a facially invalid sentence or illegal incarceration.
Section 46-22-101(1), MCA. Therefore,
IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED and
DISMISSED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel
of record and to David Russell Aliff personally.
DATED this e:3-- day of June, 2023.
orr Jot•IL.
Justices
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