Clary v. State, 2017 MT 295N

Charles E. Clary was convicted of aggravated burglary and assault with a weapon; this Court affirmed his conviction in State v. Clary.
Clary filed a first postconviction relief (PCR) petition that was dismissed and that dismissal was affirmed by this Court in 2015.
On November 3, 2016, Clary filed a second PCR petition raising newly discovered evidence and judicial impartiality claims; the District Court dismissed it on March 3, 2017.
Clary asserted a December 2, 2015 newspaper article about Judge Julie Macek’s medical retirement showed she was incompetent and biased during his case; he also argued Macek’s prior probable-cause finding and trial role demonstrated partiality.
The State argued the second petition was time-barred and procedurally precluded because the issues either did not satisfy the newly discovered evidence exception or had been previously litigated.
The Supreme Court affirmed, holding the petition was time-barred, the newly alleged facts did not meet the statutory newly-discovered-evidence exception, and the impartiality claim was procedurally barred.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of second PCR	Clary contended article about Judge Macek is newly discovered evidence allowing a late filing	State argued PCR must be filed within one year of final conviction and Clary’s petition was filed years late	Court: Petition was time-barred; conviction was final May 8, 2012 and petition filed ~3.5 years later
Newly discovered evidence exception	Article about Judge Macek’s medical retirement shows judge incompetence affecting outcome, so exception applies	State: Article does not show Clary did not commit the crimes; does not meet statutory exception	Court: Exception not satisfied because allegations do not show innocence of the crime
Successive petition standard	Clary maintained new facts justify a second petition	State: Successive petitions are allowed only for grounds not reasonably raised earlier	Court: Clary failed to show grounds that could not reasonably have been raised earlier; dismissal appropriate
Judicial impartiality / recusal	Clary argued Judge Macek was not impartial due to retirement/illness and prior involvement	State: Claim was previously raised and rejected; procedurally barred	Court: Impartiality claim was previously litigated and is procedurally barred

State v. Clary, 364 Mont. 53, 270 P.3d 88 (affirming Clary's conviction)
Kelly v. State, 368 Mont. 309, 300 P.3d 120 (standard of review for dismissal of PCR petitions)