*1 378 FORD,
EUGENE
Aрpellant,
Petitioner
MONTANA,
OF
STATE
Respondent.
Respondent
No. 04-167.
February
2005.
Submitted on Briefs
Decided June
For Antonia P. Bell & Great Falls. Respondent: McGrath, For Honorable Mike Attorney Montana Mattioli, General, Mark Attorney General, Helena; W. Assistant Light, County Brant S. Cascade Attorney, Great Falls.
JUSTICE Opinion NELSON delivered the of the Court. (Ford) Eugene appeals Eighth ruling Judicial ¶1 Court, County, Cascade denying his petition for relief. We affirm. The issue on appeal is whether the District Court petition denied Ford’s holding evidentiary an hearing.
FACTUAL AND PROCEDURAL BACKGROUND 26,1999, On March the State filed an charging information ¶2 with the offense of deliberate homicide relation to the death of his (Paul). roommate, Michael Paul severely Paul was so beaten that his lodged dentures were deep his throat and had to be removed with forceps. 12,1999, On November jury unanimous Ford guilty. found He was then sentenced to the Montana State Prison for life and was ineligible parole. declared for This Court affirmed Ford’s conviction in v. MT 2001
230, 306 517, 39 Thereafter, Mont. P.3d 108. Ford filed a se pro petition for postconviction along supporting with a memorandum which counsel. written Concurrently, Ford’s moved record, for leave to withdraw as stating counsel of that she could find no non-frivolous issue to support petition for postconviction relief. petition, In his Ford claimed that he had received ineffective during
assistance of counsel In support trial. of this variety identified deficiencies his trial counsel’s contentions, evidentiary performance. requested these an Upon hearing him a trial and and asked the District Court new its The denied Ford’s petition new counsel. District Court appoint entirety, of and Ford filеd notice postconviction counsel to withdraw permitted This Court record, matter to the District Court as counsel of and remanded the The District Court purpose appointing the limited new counsel. Ford, and this followed. Ford appellate counsel for appointed argues that the District Court erred when it denied now conducting evidentiary hearing. an relief without hearing is evidentiary Ford asserts that an argument, of this performance the extent ofhis counsel’s deficient necessary ascertain resulting prejudice, as thаt can not be determined from contentions, Ford asks this Court to reverse record alone. be held. the District Court and order that
STANDARD OF REVIEW a district court’s denial We review clearly findings of fact are determine whether court’s of law are correct. State and whether its conclusions erroneous 372, Harris, 231, 9, P.3d MT 306 Mont. *3 in a decision to hold an is of discretion. discretionary is and reviewed abuse proceeding Harris, 9.¶
DISCUSSION the guaranteed by right The to effective assistance of counsel is II, Constitution, by and Article Amendment to the United States Sixth 243, Kougl, State v. 2004 MT 24 of the Montana Constitution. Section 6, 11, 1095, considering In 11, 97 P.3d 11. 323 Mont. ¶ ¶ ¶ Montana postconviction proceedings, of counsel claims assistance by the United States test set forth apply two-pronged the courts 668, 104 (1984), 466 Washington U.S. Court in Strickland v. Supreme 102, 18, 294 Boucher, MT 2052, 674. 1999 80 L.Ed.2d S.Ct. ¶ test, 1058, petitioner 296, 18, 18. Under that the 980 P.2d Mont. ¶ ¶ the deficient and that performance was must show that counsel’s Boucher, 18. Where defense. prejudiced the performance deficient ¶ object a failure to predicated on of ineffective assistance have been objection would trial, must show that petitioner 79, Jenkins, 2001 MT State v. and would have been sustained. proper 201, claiming 95, 11, A 11, petitioner P.3d 11. Mont. 23 305 ¶ ¶ ¶
381 ground proof ineffective assistance of counsel must his or her on facts conclusory allegations. State, the record and on within not Davis v. 20, 112, 118, 20, 1285, MT 321 2004 Mont. 88 P.3d ¶ ¶ ¶ 46-21-104(l)(c), MCA, requires Section relief‘identify all supporting grounds facts for relief affidavits, records, set forth in the and have attached other establishing the existence those allegations facts.”Mere do statute, not contemplated constitute the “evidence” this unsupported allegations petitioner are sufficient to entitle a to an evidentiary hearing. 288, 9, 493, 2002 312 Finley, State v. MT Mont. ¶ 9, 1132, requires P.3d we have held that this statute ¶ grounded that a claim of ineffective assistance counsel must facts in the merely conclusory allegations. Finley, record ¶9. timely object 1. Failure to to the peremptory State’s use of
challenges. During jury trial, process preceding selection prosecutor used each of the State’s six peremptory challenges to exclude jury panel. jury, women from the сomprised eight final men, alternate, four women sworn, and one women was then and the venire was dismissed with the thanks of the court. Subsequently, Ford’s counsel jury pool, moved for new claiming State had violated Ford’s right jury peers of his when it removed six prosecutor women. The any discriminatory denied provided intent and gender explanations neutral peremptory challenges five the six before the objection. overruled Ford’s Following conviction, appealed Court arguing improperly State had its peremptory challеnges used and had thereby equal Ford, violated his protection rights. advancing 2.¶ argument, (1994), 127, relied J.E.B. v. Alabama 511 U.S. S.Ct. prohibition L.Ed.2d which established the against gender Ford, jury discrimination in selection. 20. We objection concluded to the use its peremptory State’s challenges untimely was because it was not raised after jury until impaneled and sworn and the venire was dismissed. Thus, waived, objection we deemed the declined to address the merits *4 Ford, of Ford’s and affirmed the District Court. 28-29. ¶¶ petition claim ed his trial that his counsel had rendered ineffective assistance when he failed to raise a timely objection peremptory challenges. State’s use of its based his had prosecutor 382 gender exercising peremptory challenges.
discriminated based on by prejudiced Ford claimed that he was his counsel’s failure prevented argument appeal. him making because it from valid clearly Court concluded that the basis Ford’s claim was within trial record and could been raised on direct contained have Hence, procedurally the court concluded that Ford’s claim was appeal. §46-21-105(2), MCA, and refused to relief. barred under claim could have been raised On Ford concedes that this that he should not be appeal. argues on direct proceedings precluded raising this claim in from appeal the claim on direct was a result of because the failure to raise ineffective assistance. We will not address this appellate his counsel’s petition for argument because it raised in Ford’s held, we will not address repeatedly relief. As we have State, 267, MT appeal. fоr the first time on v. 2003 issues raised Griffin 15, 15, 545, 457, P.3d 317 Mont. ¶ ¶ ¶ Additionally, that his should not have argues been had, fingertips, showing “the court its of denied because district contention, Ford ineffective assistance of counsel ....’’In of this appeal direct established that asserts that this Court’s resolution performance. Ford has trial rendered deficient misconstrued we did determine that Ford’s trial our decision. While use its objected untimely in an fashion to State’s explicitly declined to address the merits peremptory challenges, we of Ford’s direct objection. 28. As our resоlution ¶ counsel rendered deficient does not establish that appeal performance. 46-21-105(2), MCA, has petitioner that when a provides Section or her appeal for a direct of his opportunity afforded the
been reasonably conviction, grounds for relief that were or could been raised, considered, or decided appeal may direct raised on applied statutory consistently We have postconviction proceedings. by criminal prevent bar order to the abuse those for direct proceedings defendants who would substitute 1113, 80, 15, 97 P.3d State, MT 323 Mont. Basto v. ¶ so, ineffective assistance doing we have stated that “where 15. In case, they underlying in the are based on facts of record counsel claims and, conversely, where raised the direct must be documented of counsel cannot be allegations of ineffective assistance case, claims must be raised underlying in the those from the record 149, 12, White, MT post-conviction relief.” State *5 58, 12, 340, underlying 306 Mont. 30 P.3d 12. The of this principle ¶ ¶ strong rule a silent record the presumptiоn, is that cannot rebut under this Court’s conduct falls analysis, Strickland-based counsel’s range professional White, within the wide of reasonable assistance. ¶13. Generally, adequately why the trial court record must document particular acted in in a manner order for this Court to review
a of claim ineffective assistance and determine whether counsel’s professional
action falls the below reasonable standard for conduct. 90, 49, Jefferson, 641, State 2003 MT 315 Mont. 69 P.3d ¶ ¶ 49. challenged where trial counsel’s conduct can not be ¶ deсision, a strategy considered trial it appropriate tactical for if appeal review direct even the record not the does disclose reason Jefferson, such conduct. 50. ¶ example, For a of we reviewed claim ineffective Jefferson appeal though assistance on direct even the record did the not disclose reasons for trial challenged Jefferson, counsel’s conduct. 50. ¶ defendant, Jefferson, guilty plea entered a charge not to the of attempted Jefferson, deliberate homicide. 10. he Subsequently, ¶ agreement whereby entered into a plea agreed plead he one guilty to assault, count felony of agreed charge drop attempted Jefferson, deliberate homicide. 12. Jefferson later ¶ guilty plea withdrew his on the felony charge proceeded assault charge trial attempted deliberate Jefferson, homicide. trial, At 13-14. opening defense counsel admitted both his ¶¶ statement and closing argument felony guilty Jefferson was Jefferson, appealed claiming, assault. 45-46. Jefferson to this Court ¶¶ alia, inter that he had received ineffective assistance of counsel. Jefferson, 41. We determined that counsel’s remarks had the effect ¶ entering plea Jefferson Jefferson, without consent. Further, we held that because there was plausible justification circumstances, counsel’s conduct under guilt admission strategy be considered trial Jefferson, or tactical decision. such, As we deemed Jefferson’s assistance appropriate though for review on direct even record did why Jefferson, document counsel had made the admission. Here, timely objection counsel’s failure to raise a to what he
perceived discriminatory as use of peremptory challenges, the State’s can strategy not be considered a trial or tactical decision. Ford course, Of explicitly appellate concedes this in his brief. we make no regarding objection. determination here the merits of such an objection would have been However, to the extent that such only meritorious, timely to raise it fashion could failure plausible justification there can be no for such prejudice Ford. Because failure, hold an to determine there is no need to the reason for counsel’s omission. As we could have reviewed though the trial record merits of Ford’s claim on direct even why object earlier. Such review not document counsel failed to does conducted, Jefferson, it been as could have Consequently, trial record. offactual matters outside the consideration MCA, §46-21-105(2), barred procedurally we hold that undеr Ford was *6 proceedings claim in because bringing postconviction from this Thus, conclude appeal. have done so on direct we reasonably he could correctly relief on this claim. that the District Court denied to Ford’s statements. suppress 2. Failure to move relief, alleged for Ford that petition In his ¶18 him from law enforcement officers elicited statements responding allegation, this Ford issuing warning. before Miranda Pursuant to when he rendered ineffective assistance claimed that trial counsel Ford also claimеd that suppress failed to move to these statements. failed to ineffective when he trial counsel rendered assistance witness, of the officers as accompanied a civilian who one interview incident, alleged night regarding improper on the ofthe this ride-along questioning. at the scene of the officers testified that responding One of that had exclaiming he repeatedly spontaneously
crime Ford was and I neck. I killed Paul, stating T killed him. broke his point killed one allegation, District Court stated: addressing Ford’s him.” not prеsented at trial that the officers did The evidence was crime, any that at the scene of question while Ramsay or Officer made Ford to either Officer statements questioning by to the officers. response not in Sorenson were circumstances, the that, in District Court concluded these rights. of his Miranda required to advise Ford officers were to that Ford offered no evidence Finally, the District Court found a motion to filing ineffective that his counsel was establish to Accordingly, the District Court refused these statements. suppress grant relief on this claim. that not raised contentions were presents On several (1) some relief. Ford contends that: in his alleged statements present when certain who claimed to be
the officers (2) officers threatened made, law enforcement present; were not were (3) statements; taped and coerced Ford the course which allow for made under circumstances would statement was (4) if witnesses who observed officers suppression; and there were statements, into the District Court could coercing making speak was with failing determine that to that repeatedly We have held we will not address witnesses. Thus, time Griffin, issues the first because raised for previously, none these contentions were raised we will not address them here. suggests many problems also have resulted from civilian,
trial counsel’s failure to interview the who accompanying was officers, responding regarding alleged improper questioning. any argument point any he does not make evidence any which would indicate that such problems occurred in his trial. We conclude that the District Cоurt denied relief as it is merit. grounded The claim is more than nothing law enforcement officers elicited statements issuing from him warning. before a Miranda As Ford has failed 46-21-104(l)(c), MCA, comply with which requires § claims grounded Finley, on facts in the record. suppress testimony. Failure move to witness In his law enforcement neighbors officers coerced statements from his “threatened them with to link them the crime.” allegation, Ford claimed that his ineffective when he *7 suppress failed to to testimony neighbors regarding move of these also that argued incident. Fоrd his when counsel he failed to alleged interview these witnesses this regarding coercion. The found, District and upon testimony Court cross-examination of individuals, that was no they there indication had coerced been by Further, law enforcement officers. the court found that Ford had produced allegation. no evidence to his support Accordingly, court refused grant to relief on this claim. suggests many problems On that appeal, trial neighbors
resulted from counsel’s failure to interview the regarding alleged However, Ford any this coercion. does not make argument any any to which such point would indicate that problems occurred his trial. We conclude that the District claim, claim relief on properly denied this as it is without merit. grounded nothing allegation is on more than Ford’s that law enforcement his As neighbors. officers coerced statements from §46-21-104(l)(c), MCA, requires Ford has failed to with which comply grounded Finley, that claims be on facts the record. ¶9. illegally to move to obtained blood suppress Failure
evidence. that In his obtaining sample from his hands before detectives collected blood allegation, Ford warrant. this claimed that his counsel search he failed to file a motion to provided ineffective assistance when relief suppress denying such evidence. on this trial, any did admit evidence at Court noted blood suppress thus reason file a motion to counsel to On claims he is entitled to an appeal, such evidence. that issue, any fails to present argument on this but of conclude that District Court this claim. We claim, as it an that is grounded allegation denied relief on this Thus, directly by comply the trial record. Ford has failed to refuted §46-21-104(l)(c),MCA, requires which claims with Finley, facts grounded on record. Instigation negative publicity. relief, Ford claimed that his In his handling in his of the media.” This was “ineffective during fact visited Ford his stems from the that one Paul’s relatives Center, causing County Detention incarceration at Cascade at Ford. counsel issued news release disruption cursing Consequently, the Falls Tribune ran a regarding the incident. Great enforcement officials story containing counsel’s accusation law rights by аllowing the incident to had violated Ford’s constitutional Hence, instigated negative media argued occur. obtaining impartial jury. an coverage which reduced his chances he conduct because prejudiced Ford claimed that was counsel’s coverage the media proving of the the extent which impossibility against Ford. community turned the pre-trial Court concluded that the issue of The District dire, of the as all adequately during dealt with voir publicity was coverage the media they were unaware of
jurors indicated thаt supported Ford had not the District Court found that issue. the District Accordingly, prejudice any with evidence. Ford asserts claim. On Court refused issue, fails hearing but evidentiary he is entitled *8 Further, Ford has support in of this claim. any argument present prejudice. Finally, his presented support no evidence claim that his counsel’s authority support Ford has cited in of the complaint media to ineffective assistance. Section to the amounts MCA, 46-21-104(2), relief be requires that legal Thus, Court supported by authority. we conclude District denied relief on this claim. Incidentally, we that Ford the trial misrepresented observe has advancing apparent attempt record this claim In efforts, publicity fault his trial Ford that after counsel’s asserts occurred, change his trial counsel did not make a motion to venue. the trial record demonstrates that Ford’s counsel did fact make a The change apparently motion venue. District denied motion,1 and Ford did raise the or in issue direct postconviction proceedings. present negligent
6. Failure to evidence of rescue efforts. Ford alleged responding negligently law enforcement officers failed to ensure that airway CPR, Paul’s clear initiating before and thus failed to detect lodged Further, the dentures alleged his throat. (EMTs)
responding emergency medical technicians moved improperly sufficiently Paul before stabilizing neck, they though even knew he injuries. had neck allegations, claimed Paul might have if survived the officers and EMTs adequately performed Additionally, their duties.
covered up negligence by forging the officers and EMTs medical records. Pursuant to these allegations, Ford claimed that his counsel was
ineffective when he failed present evidence that death was Paul’s by negligent caused rescue efforts of law enforcement officers and failure, EMTs. argued, This denied him a “potentially meritorious” defense that an acquittal. achieved District Court found that the trial record contained no support factual allegations. the District Court found that Ford offered no evidence to that counsel should have presented Accordingly, such a defense. the District Cоurt refused to grant relief on this claim. transcript, The record which does not include a trial does not change Presumably, document the Court’s of Ford’s denial motion for ofvenue. formally point during proceedings
the motion was ruling, denied at some a written changed as never venue was case. *9 (1) following the appeal, arguments: On Ford advances the
¶30 reports injuries medical indicate that Paul had that were possibly (2) EMTs; by strategy caused the there could be trial which would ignore by counsel to the the death caused possibility allow that was (3) Ford; hire and seek experts someone other than the failure to opinions prove by person to that the death caused another (4) counsel; holding be assistance of considered ineffective way determine hearing, the District had no whether trial Court to (5) efforts; sufficiently investigated negligent the rescue necessary hired a hearing is to determine whether expert played what role the rescue efforts medical determine (6) death; hearing necessary Paul’s to determine whether testify procеdures expert emergency medical would that the medical (7) death; investigate if not use Paul’s trial counsel did the caused witnesses, have a medical medical Ford should be allowed to expert These expert opine hearing regarding negligent at a the rescue efforts. on mere arguments nothing they allegations avail because are based the the District unsupported by which are record. We conclude that claim, comply denied on this as Ford has failed to properly §46-21-104(l)(c),MCA, requires that claims with which Finley, fаcts in the record. grounded be a witness. adequately 7. Failure to cross-examine relief, alleged Ford In his (Boland) discrepancies. support In testimony of Boland contained Gene (1) he allegation, of this Ford claimed Boland testified that: observed incident, from a sitting drinking at the kitchen table after the (2) beer; face he the color of Paul’s whisky bottle and a can of observed (3) incident; he made both these observations from after the assertions, argued front door of Ford’s these apartment. from front that Boland could hаve made observations of the Ford also layout apartment. door because of the blood found on testimony was inconsistent with Boland’s photos Ford claimed that taken In of this hands. hands, Crime Lab on his but the State after his arrest showed blood can that Boland any whisky find bottle and beer did not blood on drinking from. claimed Ford was his trial counsel allegations, Ford claimed that Based on these adequately when he failed
provided ineffective assistance testimony. in his discrepancies regarding Boland cross-examine failure bеcause such prejudiced by he was Ford claimed testimony. undermined Boland’s would cross-examination found, the direct and cross-examination District Court based both trial, discrepancies alleged by of Boland and photos Ford did exist. The District Court also found that the any Accordingly, Ford’s hands did not show blood. the District Court refused to relief on claim. claims On if trial properly counsel had Boland, testimony entirety
cross-examined would have been called into We conclude that the District Court question. grounded
denied relief on this as it is more than nothing allegations supported which are not the record. As Ford has 46-21-104(l)(c), comply MCA, failed to which requires with § claims grounded Finley, on facts the record. 9.¶ to object 8. Failure to the introduction of evidence. claimed that his trial
counsel was he object ineffective when failed the introduction of *10 trial; pieces whisky three of evidence at bottle a beer can from Ford’s claimed apartment, and Paul’s dentures. Ford that his should objected testimony regarding have to this claim, evidence. In this of asserted that the chain of custody for these was when original tags items severed the tags were misplace new were created. The District found Court any that the State did not place evidence, of these items into and thus Ford’s had need to object. Accordingly, no the Court refused to this claim. On appeal, Ford foregoing abandons all the contentions. As
¶35 such, we no occasion to the District review Court’s decision on does, however, this issue. Ford’s appellate brief claim that an necessary prejudice to demonstrate the suffеred object after trial counsel failed to the prosecution when displayed jury, evidence to the but did submit that evidence to the or jury. argument court This is without merit because Ford has not specified Furthermore, he is referring which evidence to. could not we argument consider even if had any particular identified evidence, argument because no such was raised for held, postconviction relief. As we have we repeatedly will not address Griffin, issues raised for the first time on appeal.
CONCLUSION statutes, applicable postconviction Based we conclude the District Court denied Ford’s for evidentiary holding hearing. relief without Affirmed. GRAY, RICE, COTTER and CHIEF JUSTICE JUSTICES LEAPHART concur. COTTER concurs.
JUSTICE Ford, question of when a Batson recognized we of first timely, must made in order to be was one challenge so, hardly This being Court. it is impression his trial appeal argue failed in his first to surprising challenge. failing timely to assert his Batson counsel was ineffective disagree deny present I with the Court’s decision to therefore it in his direct assistance claim he failed to raise because the ultimate result reached ¶¶14, See 17 above. nonetheless the correct one. the Court is very my judgment against application militates factor impression-also procedural this was a case first bar-that Ford’s ineffective against the success on the merits of militates merits of that claim. we to reach the assistance of counsel Were could not be to conclude that Ford’s counsel we would be forced jurisprudence failing under considered ineffective our Strickland jury array because the issue before the timely object said, prove must first As we have defendant impression. was one of range deficient or fell wide performance that counsel’s below Davis, sensibly reasonably conduct. It cannot be acceptable from attorney in this State argued that an who is first words, guidance challenge-who, in other the denial of Batson challenge-rendered timing law on the of such a from statute case required for a claim be deficient Strickland type performance So, of the disagree application procedural while I with the sustained. that, law, as a matter of here, I nonetheless bar would conclude claim could not survive its merits. ineffective assistance *11 Therefore, I concur.