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Cudd v. State

Supreme Court of Montana

May 23, 2017

JAMES CUDD, Sr., Petitioner and Appellant,
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: April 19, 2017

         District Court of the Twenty-Second Judicial District, In and For the County of Big Horn, Cause No. DV 15-38 Honorable Blair Jones, Presiding Judge

          For Appellant: James Cudd, Sr. (Self-Represented), Deer Lodge, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Gerald "Jay" Harris, Big Horn County Attorney, Hardin, Montana.


          Mike McGrath Chief Justice.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 James Cudd, Sr. (Cudd), appeals from a July 25, 2016 District Court order denying his motion for postconviction relief. We affirm.

         ¶3 On May 17, 2011, the State charged Cudd by information with one count of Incest and one count of Sexual Intercourse without Consent. Cudd was convicted of Sexual Intercourse without Consent and sentenced to seventy years in the Montana State Prison. Cudd appealed based on a denial of a challenge for cause of a juror. This Court affirmed the conviction.[1]

         ¶4 On August 10, 2015, Cudd filed a petition for postconviction relief. Cudd raised numerous arguments including prosecutorial misconduct, ineffective assistance of counsel, and challenges to the jury instructions. The State filed its response and Cudd requested a hearing. The District Court denied Cudd's petition for postconviction relief on July 25, 2016, without a hearing. On August 29, 2016, Cudd filed an appeal with this Court, characterizing it as a "petition for Writ of Habeas Corpus." We have determined this matter is properly characterized as an appeal of the denial of his postconviction relief petition.

         ¶5 This Court reviews a district court's denial of a postconviction relief petition to determine whether its findings of fact are clearly erroneous and whether its legal conclusions are correct. Lacey v. State, 2017 MT 18, ¶ 13, 386 Mont. 204, 389 P.3d 233. We review discretionary rulings in postconviction relief proceedings, including rulings related to whether to hold an evidentiary hearing, for an abuse of discretion. Heath v. State, 2009 MT 7, ¶ 13, 348 Mont. 361, 202 P.3d 118. However, to the extent an evidentiary ruling is based on a conclusion of law our review is plenary. State v. Bomar, 2008 MT 91, ¶ 14, 342 Mont. 281, 182 P.3d 47. Ineffective assistance of counsel claims constitute mixed questions of law and fact for which our review is de novo. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861.

         ¶6 The District Court, in a comprehensive eleven-page order, denied the petition concluding that Cudd failed to state a claim for relief. On appeal, Cudd asserts only that trial "counsel failed in his professional-duty to interview and/or depose witnesses." In an attached notarized affidavit, he alleges a number of factual matters apparently related to his underlying trial. Cudd has not raised other arguments he made in his postconviction relief petition in District Court, and therefore has waived those issues.

         ¶7 Cudd claims two new issues on appeal asserting confrontation clause and due process violations. This Court will not consider new issues raised for the first time on appeal. Ellenburg v. Chase, 2004 MT 66, ¶ 14, 320 Mont. 315, 87 P.3d 473. Cudd had the opportunity to raise these specific arguments previously and failed to do so; therefore, we will not consider them in this appeal. Section 46-21-105(2), MCA. Moreover, Cudd inserts new facts in the affidavit. This Court will not consider new facts not contained in the district court record. Kelly v. State, 2013 MT 21, ¶ 11, 368 Mont. 309, 300 P.3d 120; M. R. App. P. 8(1).

         ¶8 A petition for postconviction relief must "clearly set forth" the alleged violations by identifying all supporting facts for relief. Section 46-21-104(1), MCA. All grounds for relief must be raised in the petition. Section 46-21-105(1)(a), MCA. A petition for postconviction relief must be based on more than mere conclusory allegations. Kelly, ¶ 9; Ellenburg, ¶ 16; State v. Wright, 2001 MT 282, ¶ 9, 307 Mont. 349, 42 P.3d 753.

         ¶9 The issues properly preserved before this Court are Cudd's alleged Brady violations and his ineffective assistance of counsel claim based on ...

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