# ORIGINAL

IN THE SUPREME COURT OF THE STATE OF MONTANA OP 22-0149

DAVID REKO HERNANDEZ,

Petitioner,

v. PETERBLUDWORTH, Warden,

Respondent. 

# HLED APR 

## 0 5 2022
Bowen Greenwood Clerk of Supreme Court State nt hitnntana 

### ORDER

Representinghimself,DavidRekoHernandezhasfiledaPetition forWritofHabeas Corpus, claiming that his incarceration is illegal. He attaches a January 28, 2022 order frorn the District Court in Toole County, where Hernandez is incarcerated, denying his habeas corpus petition. Hernandez argues that the court did not apply the habeas corpus statutecorrectly. HerequeststhisCourt togrant reliefand remand hiscriminal casetothe Lewis and Clark County District Court forresentencing. Available electronic records indicate that in August 2008, the Yellowstone County District Court sentenced Hernandezto the Montana State Prison (MSP) for a twenty-fiveyear term and imposed a parole eligibility restriction often years. The District Court also suspended the last ten years ofthe sentence. In May 2019, the Lewis and Clark County District Court sentenced Hernandez to the Department ofCorrections (DOC) for a fiveyearterm to run consecutively to his prior sentence. Hernandez contends that the State failed in its duty to care for the physical and mentalhealth ofthosewithin itscustody andcontrolwhenitreleasedhimonparolewithout medication to care for his bi-polar syndrome. Hernandez claims that his inability to properly regulate his actions led to his parole violation, which in turn led to his current incarceration. Hernandez states that he "recognizes his own responsibility as well" and therefore asks"not for a complete release from his conviction, but for an appropriate, legal sentence that takes into account his mental-health and rehabilitative needs." 04/05/2022

Case Number: OP 22-0149Hernandez is not entitled to relieffor these claims through a writ ofhabeas corpus.

Section 46-22-101(1), MCA. He did not appeal to this Court in 2019. Section 46-20-104(1), MCA. An appeal is theproper forum to raise issues arising from a conviction and sentence; such issues cannot be addressed in post-judgment petitions like habeas corpus. State v. Wright, 2001 MT 282, 1 36-37, 307 Mont. 349, 42 P.2d 753. Thelawis clearthatconstitutionalclaimsconcerningconditionsofconfinementand Medical care are not remedied by writs of habeas corpus. Gates v. Missoula Cnty. Comm'rs, 235 Mont. 261, 262, 766 P.2d 884, 884-85 (1988). Hernandez is correct that "[t]he government custodian responsible for the custody and care ofincarcerated persons has a constitutional duty to provide for the 'general well-being' and 'basic human needs' of incarcerated persons, including but not necessarily limited to food, clothing, shelter, medical care, mental health care, and reasonable safety." Disability Rights Mont v. Mont judicialDists. 1-22, No. OP 20-0189, 2020 Mont. LEXIS 973 (Apr. 14, 2020). A properly established claim may be cognizable in an appropriate civil action—but not in collateral attack of his conviction. See Helling v. McKinney, 509 U.S. 25, 31, 113 S. Ct. 2475, 2480 (1993) (noting that "the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment."). See also Quigg v. Slaughter, 2007 MT 76, ¶ 19, 336 Mont. 474, 154 P.3d 1217 (citing Jellison v. Mahoney, 1999 MT 217, ¶ 12, 295 Mont. 540, 986 P.2d 1089, and explaining requirements for establishing an Eighth Amendment , violation). Hernandez's arguments acknowledge this point by referring to principles of negligence and cases concerning such claims. Although Hernandez argues that his claims pertain to the "underl[ying] cause" of his imprisonment, for which the law expressly grants a remedy ofhabeas corpus, he has not demonstrated illegal incarceration through a facially invalid sentence such asPetitioner Lott in the case that he references. Lott v. State, 2006 MT 279, 1 22-23. 334 Mont. 270, 150 P.3d 337. He is not entitled to habeas corpusreliefor to resentencing.

2

### IT IS THEREFORE ORDERED that Hernandez's Petition for Writ of Habeas

Corpus is DENIED and DISMISSED. The Clerk is directed to provide this Order to counsel of record and to David Reko Hernandez personally. DATED this ,D day ofApril, 2022.



# es24

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