Appellant Bobby Cooksey, appearing as a self-represented litigant (Cooksey), appeals from an order of the Fourteenth Judicial District Court, Musselshell County, denying his "Motion to Compel Response." Cooksey is incarcerated on a conviction of felony deliberate homicide. In his motion, Cooksey sought post-trial discovery from various individuals, including the Musselshell County Attorney, two Public Defenders and Regional Administrators, and the Musselshell County Clerk of Court. He requested the disclosure of exculpatory discovery "never produced at any of the hearings or the trial itself" However, he did not identify in his motion what exculpatory evidence he was actually seeking.
In denying his motion, the District Court concluded that it was impossible to discern precisely what discovery Cooksey was seeking. Further, the court observed that because Cooksey is seeking discovery in order to prepare a petition for postconviction relief, he is obligated under § 46-21-201(4), MCA, to seek leave of court in order to utilize discovery procedures in postconviction proceedings. Because Cooksey has neither filed a petition for postconviction relief nor obtained leave of court to conduct discovery, the court concluded that his motion must be denied.
In responding to Cooksey's opening brief on appeal, the State argues that his appeal is premature and that he must first commence a postconviction proceeding before seeking discovery. The State recommends we dismiss Cooksey's appeal without prejudice to his filing of a postconviction relief petition. In this connection, we note that Cooksey's petition for a writ of certiorari in the United States Supreme Court was denied on April 15, 2013, and therefore his conviction became final for purposes of collateral review on that date. According to § 46-21-102(1)(c), MCA, Cooksey has one year from the date that the United States Supreme Court issued its final order within which to file a postconviction petition.
We agree with the arguments of the State of Montana. Cooksey must first file a petition pursuant to the postconviction statutes, commencing at § 46-21-101, MCA, before he can seek leave for discovery pursuant to § 46-21-201(4), MCA. This statute in turn requires that a petitioner demonstrate good cause for leave to utilize discovery procedures in postconviction matters.
We therefore determine that dismissal of this appeal without prejudice is the appropriate remedy. Cooksey may thereafter pursue timely postconviction proceedings. Cooksey is specifically directed to § 46-21-104, MCA, which sets forth the required contents of a petition for postconviction relief. Specifically, Cooksey will be obligated to identify all facts supporting the grounds for relief set forth in his petition, and have attached affidavits, records, or other evidence establishing the existence of those facts. A mere allegation that there is exculpatory evidence somewhere, without identifying what it might be, will not suffice.
IT IS HEREBY ORDERED that Cooksey's appeal from the order of the District Court denying his Motion to Compel Response is DISMISSED WITHOUT PREJUDICE.
The Clerk of Court shall provide a copy of this Order to all counsel of record, and to Cooksey ...