Submitted on Briefs: April 19, 2017
Court of the Twenty-Second Judicial District, In and For the
County of Big Horn, Cause No. DV 15-38 Honorable Blair Jones,
Appellant: James Cudd, Sr. (Self-Represented), Deer Lodge,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana Gerald
"Jay" Harris, Big Horn County Attorney, Hardin,
McGrath Chief Justice.
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
James Cudd, Sr. (Cudd), appeals from a July 25, 2016 District
Court order denying his motion for postconviction relief. We
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
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.
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
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.
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).
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.
The issues properly preserved before this Court are
Cudd's alleged Brady violations and his
ineffective assistance of counsel claim based on