McClanahan v. Salmonsen

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08/24/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0401
OP 21-0401
SHANE McCLANAHAN,
AK 2 4 2021
n Greenwood
Petitioner, ,,, • or Supreme Court
state of Montana
v.
ORDER
JIM SALMONSEN,
Warden, Montana State Prison, Deer Lodge,
Respondent.
Shane McClanahan has filed a Petition for Writ of Habeas Corpus challenging his
prison incarceration on the ground his sentence is longer than allowed. He explains that
he has convictions in two criminal matters from Missoula County. He contends he "was
never afforded an 'appeals attorney" and that all involved counsel as well as Montana
State Prison (MSP) personnel have conspired against him to deprive him of access to a law
library, including placing him out-of-state in New Mexico and Utah. McClanahan requests
an out-of-time appeal with the appointment of counsel from the appellate defender's office
in Butte, Montana.
This Court is familiar with McClanahan's judicial history. Regarding his first
conviction, McClanahan appealed following the jury verdict finding him guilty of two
counts of attempted deliberate homicide (Cause No. DC-01-422). State v. McClanahan,
No. 05-317, 2007 MT 303N, 2007 Mont. LEXIS 546 (McClanahan 1). McClanahan was
represented by counsel and raised: (1) an ineffective assistance of counsel claim "because
his trial counsel did not provide any expert medical testimony to support the claim of
self-defenseN" and (2) a claimed instructional error "regarding reasonable doubt because
he believes the pattern instruction is unconstitutional." McClanahan I, ¶ 5. We affirmed,
explaining:
Nothing in the record before us indicates that McClanahan's trial counsel
was ineffective for declining to call an expert medical witness to support the
defense of justifiable use of force. Trial counsel pursued the defense by
cross-examining the State's witnesses, eliciting testimony from
McClanahan, and introducing medical records of McClanahan's injuries.
The jury chose not to accept McClanahan's version of the facts. Counsel's
decision to pursue these strategies and not to call a medical expert is a matter
of trial tactics that falls within the wide range of discretion we accord
counsel. [citation omitted]. We conclude McClanahan has not demonstrated
that counsel's performance fell short of the required level of competence, and
his claim of ineffective assistance of counsel must fail.
McClanahan I, ¶ 8. We also held that the District Court did not err in giving the challenged
jury instruction concerning reasonable doubt, noting that the instruction had been approved
in prior cases. McClanahan I, ¶ 10; see also State v. Lucero, 214 Mont. 334, 344, 693 P.2d
511, 516 (1984) (approving use of a pattern jury instruction on reasonable doubt).
McClanahan also sought relief from this Court for his second conviction and
sentence (Cause No. DC-02-175). After a jury found McClanahan guilty of sexual
intercourse without consent, the District Court sentenced him to a consecutive, twenty-
five-year term in MSP. In March 2007, McClanahan filed a pro se writ of supervisoiy
control alleging "Abandonment and Continual Prejudice to [his] right to appeal . ." This
Court issued an Order remanding the matter for entry of a written judgment based upon
McClanahan's allegation that a written sentence and judgment was not entered, and ordered
defense counsel to respond to McClanahan's claim that counsel has abandoned.
McClanahan's right of appeal. McClanahan v. State, No. OP 07-0207, Order (Mont.
Apr. 4, 2007). Both the District Court and defense counsel responded to this Court's Order,
whereafter we noted a written judgment and sentence had been filed on October 6, 2006.
We entered several more orders before procedurally deeming McClanahan's petition to be
a direct appeal from his conviction. We provided defense connsel an opporttmity to
withdraw and file an Anders' brief, and ultimately dismissed the appeal: "Pursuant to
Anders, the Court has now independently examined the record in this matter. We conclude
I See Anders v. Ca., 386 U.S. 738, 87 S. Ct. 1396 (1967), and § 46-18-103(2), MCA.
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that an appeal in this case would be wholly frivolous." State v. McClanahan, No. 07-0207,
Order, at 1 (Mont. Sept. 19, 2007) (McClanahan II). We also ordered that no out-of-time
appeal would be allowed in this case. McClanahan II, at 1.
McClanahan has been afforded appeals of both of his Missoula County criminal
cases. To summarize: we affirmed his convictions of two counts of attempted deliberate
homicide in 2007, and dismissed his appeal of his sexual intercourse without consent
conviction after briefing from him and his former counsel. "[The supreme court's
dismissal of an appeal . . . is with prejudice and constitutes the final judgment of the
supreme court." M. R. App. P. 19(2). McClanahan is precluded from seeking another
appeal of convictions and sentences previously reViewed by this Court. Section 46-22-
101(2), MCA, provides that "Mlle writ of habeas corpus is not available to attack the
validity of the conviction or sentence of a person who has been adjudged guilty of an
offense in a court of record and has exhausted the remedy of appeal." McClanahan has
exhausted the remedy of appeal. Section 46-22-101(2), MCA.
McClanahan does not have an illegal sentence. His sentence is notf longer than the
law allows. The District Court sentenced McClanahan for the two convictions of attempted
deliberate homicide to concurrent terms of one-hundred years with twenty-five years
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suspended. McClanahan I, ¶ 4. Pursuant to § 45-5-503(2), MCA (2001), the District Court
may impose a sentence of five to 100 years in a state prison for sexual intercourse without
consent, and the court must run the sentence consecutively. Section 46-18-401(4), MCA
(2001). McClanahan has not demonstrated illegal incarceration. Section 46-22-101(1),
MCA.
IT IS ORDERED that McClanahan's Petitibn for Writ of Habeas Corpus is
DENIED and DISMISSED.
IT IS FURTHER ORDERED that his requests for an out-of-time appeal and
appointment of appellate counsel are DENIED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel
of record and to Shane McClanahan personally.
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DATED this '1 day of August, 2021.
Justices
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