No. 92-556 and 32-612 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1333 

IN RE THE PETITION OF 

CHESTER R. BAUER, 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Chester R. Bauer, Deer Lodge, Montana; Pro Se 

For Respondent: 

Honorable Joseph P. Mazurek, Attorney General; 

Barbara Harris, Assistant Attorney General, Helena, 

Montana; Bob McCarthy, Silver Bow County Attorney, 

Butte, Montana 

Submitted on Briefs: March 11, 1993 

Decided: May 6, 1993 

Filed: 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from the Second Judicial District Court, 

Butte-Silver Bow County, denying the petitioner a hearing for postconviction relief. We affirm. 

The only question on appeal is whether appellant is legally 

permitted to submit this second petition for post-conviction relief 

nine years after his conviction and sentencing. 

On July 17, 1983, Chester R. Bauer (Bauer) was convicted by a 

jury of sexual intercourse without consent and aggravated assault. 

He appealed his conviction and this Court affirmed in State v. 

Bauer (1984), 210 Mont. 298, 683 P.2d 946. Subsequently on January 

14, 1986, Bauer filed a petition for post-conviction relief with 

this Court which was denied on February 20, 1986. The order is in 

the Supreme Court file. 

In October of 1992, Bauer again petitioned for post-conviction 

relief, this time with the Second Judicial District Court. Bauer 

also filed the same petition with this Court. The District Court 

denied Bauer's petition because Montana's statutory scheme allows 

only five years in which post-conviction relief can be sought. 

Bauer claims that he does not remember filing the 1986 

petition for post-conviction relief and that his files were 

destroyed in the 1991 riot at the prison. His argument to us is 

that he was not aware of the law. Bauer's failure to remember 

filing the petition for post-conviction relief in 1986 is 

irrelevant. This Court still holds the original order, a copy of 

which was attached to the State's brief. 

2 
The legislature in 1981 amended the statxtes on postconviction relief to contain a five year limit on petitions. Bauer 

was convicted in 1983. Bauer argues that this Court subsequently 

denied the validity of the limit placed on post-conviction relief 

in State v. Perry (i988), 232 Monc. 455, 758 P.2d 268. Bauer has 

not read the case carefully. 

In w, the pleading involved was specifically marked 

Petition for New Trial or Otner Appropriate Relief. The State 

argued it was really a petition for post-conviction relief. This 

Court determined that it was not in actuality a petition for such 

relief. We noted that the petition was more akin to that of habeas 

corpus, although technically it was not a petition for habeas 

corpus. 

The purpose of a writ of habeas corpus is to determine the 

legality or illegality of the restraint alleged. It is available 

only to persons unlawfully imprisoned or restrained of their 

liberty. August v. Burns (1927), 79 Mont. 198, 255 P. 737. A 

petition for this writ must state that the petitioner is unlawfully 

imprisoned or restrained of liberty in violation of his 

constitutional rights and must state why the restraint is unlawful. 

Section 46-22-201, MCA. See also, Perry at 210 Mont. at 462. 

We note that in PerrV on which Bauer relies, the co-defendant 

at the original trial whose testimony helped convict Perry, 

recanted his testimony 17 years after the homicide. Perry's 

petition stated that he was being improperly restrained because the 

recantation proved him innocent. We determined that the co- 
defendant recanted only after he was told that Perry was being sent 

to the same prison, and that the recantation was without merit. 

Here Bauer has not alleged unlawful restraint. He has filed 

for post-conviction relief and claims his sentence is being 

impossed in violation of the laws of the state or the U.S. 

Constitution. In order to qualify for a post-conviction relief, 

the defendant must have no adequate remedy of appeal. Section 46- 

21-101, MCA. Bauer appealed his conviction in 1984. 

Further, we have previously stated: 

While the mandate of due process and Article 11, Section 

16 of the Montana Constitution guarantees every person 

access to the courts, it cannot be said that such rights 

grant a person license to relitigate a cause or to burden 

the resources of the court with successive claims which 

could have been brought in one action. 

m, 232 Mont. at 463. The time limit that the legislature 

placed upon post-conviction relief in 46-21-102, MCA, was an 

attempt to end the continuing relitigation of issues already 

finally determined. Similarly, the public interest in finality of 

judgments also weighs heavily against serial litigation. Perry, 

210 Mont. at 463, citing Murray v. Carrier (1986), 477 U.S. 478, 

106 S.Ct. 2639, 91 L.Ed.2d 397, Our task as a reviewing court is 

not to change the legislature's clear directive that petitions for 

post-conviction relief be filed within five years. That statute is 

clear and needs no further interpretation. 

We also note that on the pre-printed forms given to prisoners 

at the prison and based upon § 46-21-101, MCA, the following is 

printed at the very top of the form: 
Instructions--Read Carefully 

(1) A petition for post-conviction hearing may be filed 

at any time within 5 years of the date of conviction. 

Thus, even if Bauer did not remember the 1986 order, the 

instructions he read and the petition he filled out were ample 

notification of this legislative directive. 

Most of Bauer's issues were decided on appeal to this Court in 

State v. Bauer. The rest are issues which could have been brought 

up on appeal but were not. We conclude that the entire twenty-four 

page petition contains nothing but arguments concerning what 

happened before trial or during trial. Such arguments are not 

proper in a habeas corpus proceeding and are certainly barred by 

the limitation of five years on petitions for post-conviction 

relief. 

We hold that the District Court did not err in denying Bauer's 

petition for post-conviction relief, 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. 

Affirmed. 

We Concur: 

May 6, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Chester R. Bauer 

700 Conley Lake Rd. 

Deer Lodge, MT 59722 

Hon. Joseph P. Mazurek, Attorney General 

Kathy C. Seeley, Assistant 

215 N. Sanders, Justice Building 

Helena, MT 59620 

Brad Newman, County Attorney 

Silver Bow County Courthouse 

Butte, MT 59701 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA