Submitted on Briefs: August 30, 2017
FROM: District Court of the First Judicial District, In and
For the County of Lewis and Clark, Cause No. CDV-2015-774
Honorable Kathy Seeley, Presiding Judge
Appellant: Duane Ronald Belanus, self-represented, Deer
Appellees: Timothy C. Fox, Montana Attorney General, Tammy A.
Hinderman, Assistant Attorney General, Helena, Montana, Leo
Gallagher, Lewis and Clark County Attorney, Helena, Montana
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
non-citable cases published in the Pacific Reporter and
Duane Belanus (Belanus) appeals from the Lewis and Clark
County District Court's denial of his second petition for
postconviction relief (PCR).
In August of 2008, Belanus brutally attacked and raped his
then-girlfriend. A jury convicted him of sexual intercourse
without consent involving the infliction of bodily injury,
aggravated kidnapping, burglary, tampering with or
fabricating physical evidence, and misdemeanor theft, which
we affirmed. State v. Belanus, 2010 MT 204, 357
Mont. 463, 240 P.3d 1021. The District Court denied
Belanus's extensive first petition for PCR, which we
affirmed. Belanus v. State, No. DA 14-0782, 2016 MT
262N, 2016 Mont. LEXIS 923. Belanus has litigated and
attempted to litigate many other issues arising out of the
same conviction. The District Court declared Belanus a
vexatious litigant and imposed a pre-filing order, which we
affirmed. Belanus v. Potter, 2017 MT 95, 387 Mont.
298, 394 P.3d 906. Belanus moved for supervisory control
three times while this case was in the District Court, which,
due to their repetitive nature, led us to prohibit Belanus
from seeking any additional writs. Belanus v.
Sherlock, No. OP 15-0454, 381 Mont. 543, 357 P.3d 336
(table) (Aug. 12, 2015).
When reviewing the denial of a petition for PCR, this Court
reviews legal conclusion for correctness and factual findings
for clear error. Haagenson v. State, 2014 MT 223,
¶ 8, 376 Mont. 239, 332 P.3d 268 (citations omitted).
Under § 46-21-105, MCA, issues which reasonably could
have been raised in a prior proceeding are waived in
subsequent PCR proceedings. See also Blaney v.
Gamble, 266 Mont. 51, 53, 879 P.2d 51, 53 (1994). The
statute provides "[t]he court shall dismiss a second or
subsequent petition by a person who has filed an original
petition unless the second or subsequent petition raises
grounds for relief that could not reasonably have been raised
in the original or an amended original petition."
Section 46-21-105(1)(b), MCA. Likewise, "[w]hen a
petitioner has been afforded the opportunity for a direct
appeal of the petitioner's conviction, grounds for relief
that were or could reasonably have been raised on direct
appeal may not be raised, considered, or decided in a [PCR
proceeding]." Section 46-21-105(2), MCA. Further,
ineffective assistance of counsel claims related to the first
PCR claim may not be raised in a second petition for PCR.
Section 46-21-105(2), MCA.
In this appeal from the denial of his second PCR petition,
Belanus raises many issues, which are all related to the
warrants and searches during the criminal investigation, the
disclosure of information, and the effectiveness of his
counsel. The District Court concluded: "[t]he Court has
reviewed Belanus's first petition, [the first PCR
opinion], and the second petition. The second petition does
not raise new grounds-it simply attempts to rehash the same
issues couched in different language than Belanus raised in
his initial petition." We concur with the District
Court. All the issues raised by Belanus in his second
petition for PCR reasonably could have been-and indeed
were-raised in his direct appeal and/or his first petition
for PCR. Therefore, Belanus waived his ability to raise these
issues in his second petition for PCR.
Further, we note that under § 46-21-102(1), MCA, a
petition for PCR must be filed within one year after a
conviction becomes final. If appealed to this Court and
review is not sought in the United States Supreme Court, as
was the case with Belanus's criminal conviction, then the
conviction is final 90 days after the Montana Supreme Court
issues its decision. See § 46-21-102(1)(b),
MCA; Rule 13, Rules of the United States Supreme Court;
Raugust v. State, 2003 MT 367, ¶ 15, 319 Mont.
97, 82 P.3d 890. Therefore, Belanus's petition for PCR
was time barred after December 20, 2011, one year and 90 days
after we affirmed his criminal conviction on September 21,
2010. Belanus did not bring his second petition for PCR until
October 1, 2015, well outside of the statutory limitation.
Therefore, his second petition for PCR is also time barred.
There is an exception to the one-year limitation for PCR
claims, but only if newly discovered evidence would establish
innocence. Section 46-21-102(2), MCA; See also,
Marble v. State, 2015 MT 242, ¶¶ 29-31,
380 Mont. 366, 355 P.3d 742. This exception does not apply,
as Belanus does not contend that he has discovered new
evidence. He only predicts that he will discover new
evidence, which does not meet the requirements of the
Belanus encourages us to circumvent the procedural bars to
his claims and engage in discretionary plain error review. We
decline, as Belanus's constitutional claims have already