Griffin v. StateGriffin v. State
delivered the Opinion of the Court.
¶1 Appellant Calvin Griffin was convicted of ten counts of sexual abuse of children in the Fourth Judicial District Court, Missoula County. Griffin subsequently filed a petition for post-conviction relief in which he alleged various claims, including ineffective assistance of counsel. The District Court denied Griffin’s petition for post-conviction relief, and Griffin appeals. We affirm.
¶2 We restate the sole issue on appeal as follows:
¶3 Did the District Court err in denying Griffin’s petition for post-conviction relief?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Calvin Griffin was charged by information with 174 counts of sexual abuse of children, in violation of § 45-5-625(l)(e), MCA (1997). Griffin plead not guilty to all 174 counts on July 28,1999. On June 6, 2000, the Respondent, State of Montana, filed an amended information, charging Griffin with ten counts of sexual abuse of children. Pursuant to a plea agreement, Griffin plead guilty to the ten counts contained in the amended information on June 21,2000. Griffin was sentenced by the District Court on August 2, 2000.
¶5 On June 13,2001, Griffin filed a pro se petition for post-conviction relief. Griffin’s petition asserted various claims, including ineffective assistance of counsel. The District Court denied Griffin’s petition on November 5, 2001, stating that all of Griffin’s claims were “barred, waived, or fail[ed] on the face of the Petition and the record.” Griffin appealed the District Court’s denial of his petition for post-conviction relief on November 19, 2001.
¶6 With his appeal pending, Griffin filed a
pro se
petition for writ of supervisory control with this Court on May 14,2002. Griffin’s petition alleged that, pursuant to the United States Supreme Court’s decision in
Ashcroft v. Free Speech Coalition
(2002),
¶7 The standard of review of a district court’s denial of a petition for post-conviction relief is whether the district court’s findings of fact are clearly erroneous and whether its conclusions of law are correct.
Porter v. State,
DISCUSSION
¶8 Did the District Court err in denying Griffin’s petition for post-conviction relief?
¶9 On appeal, Griffin asserts that the District Court erred when it denied his petition for post-conviction relief. The State counters that because Griffin failed to advance evidence in support of his claims, the District Court properly dismissed his petition as a matter of law. We agree.
¶10 A person requesting post-conviction relief has the burden to show, by a preponderance of the evidence, that the facts justify relief.
State v. Peck
(1993),
(1) The petition for post-conviction relief must:
(c) identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts.
¶11 In this case, Griffin’s petition for post-conviction relief asserted claims of: (1) prosecutorial misconduct; (2) double jeopardy; (3) judicial bias, and (4) ineffective assistance of counsel. However, Griffin failed to bolster his claims with supporting evidence, as required by § 46-21-104(l)(c), MCA (1999). That is, while Griffin made numerous factual allegations relating to his claims, he neglected to provide affidavits, records, or other evidence to support such allegations. We have stated that allegations in a petition for post-conviction relief do not constitute evidence.
State v. Hanson,
¶12 Griffin further contends that he should have been granted an evidentiary hearing on his petition for post-conviction relief. However, such a hearing is not required. A district court is permitted to dismiss a petition for post-conviction relief based solely upon the files and records ofthe case. See § 46-21-20l(l)(a), MCA(1999), and
Swearingen v. State,
¶13 Griffin also maintains that, pursuant to the United States Supreme Court’s decision in
Ashcroft v. Free Speech Coalition
(2002),
(1) A person commits the offense of sexual abuse of children if the person:
(e) knowingly possesses any visual or print medium in which children are engaged in sexual conduct, actual or simulated[.]
Griffin was discovered to be in possession of images of children engaged in sexual conduct. As such, Griffin was charged with, and convicted of, violating § 45-5-625(l)(e), MCA (1997).
¶14 In
Ashcroft,
the United States Supreme Court held that 18 U.S.C. § 2256(8)(B), which prohibited “virtual child pornography,” was unconstitutional and overbroad.
Ashcroft,
¶15 Finally, we note that Griffin’s appellate brief contains an argument, regarding his eligibility for parole, which did not appear in either his petition for post-conviction relief or his petition for writ of supervisory control. Thus, Griffin raises this issue for the first time on appeal. We have repeatedly held that we will not address issues raised for the first time on appeal.
State v. Bingman,
¶16 For the foregoing reasons, the judgment of the District Court is affirmed.