CHARLES E. CLARY, Petitioner and Appellant,
STATE OF MONTANA, Respondent and Appellee.
Submitted on Briefs: November 15, 2017
FROM: District Court of the Eighth Judicial District, In and
For the County of Cascade, Cause No. BDV-12-0617 Honorable
Elizabeth Best, Presiding Judge
Charles E. Clary, Self-Represented, Shelby, Montana For
Timothy C. Fox, Montana Attorney General, C. Mark Fowler,
Assistant Attorney General, Helena, Montana For Appellee:
A. Racki, Cascade County Attorney, Great Falls, Montana
Justice Mike McGrath
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
Charles Clary (Clary) appeals pro se from an Eighth Judicial
District Court order dismissing Clary's second
postconviction relief petition. We affirm.
On February 7, 2012, this Court affirmed Clary's
conviction of felony aggravated burglary and assault with a
weapon. State v. Clary, 2012 MT 26, ¶ 32, 364
Mont. 53, 270 P.3d 88. Clary's first postconviction
relief petition was dismissed by the District Court on March
30, 2015, and affirmed by this Court on September 15, 2015.
Clary v. State, No. DA 15-0242, 2015 MT 277N, ¶
12, 2015 Mont. LEXIS 470. On November 3, 2016, Clary filed a
second postconviction relief petition. On March 3, 2017, the
District Court dismissed Clary's second petition. Clary
appeals, alleging newly discovered evidence. He asserts a
December 2, 2015 Great Falls Tribune article regarding Judge
Julie Macek's medical retirement demonstrates her health
had an impact on his case. Clary also alleges Judge Macek was
not impartial because she was the same judge who determined
probable cause to charge him and who presided over his trial.
When a district court dismisses a petition for postconviction
relief as a matter of law, we review that legal conclusion
for correctness. Kelly v. State, 2013 MT 21, ¶
7, 368 Mont. 309, 300 P.3d 120.
A postconviction relief petition is time barred if it is not
filed within one year of the date that the conviction becomes
final. Section 46-21-102, MCA. A conviction becomes final
when (1) the time for appeal to the Montana Supreme Court
expires; (2) if an appeal is taken to the Montana Supreme
Court, the time for petitioning the United States Supreme
Court for review expires; or (3) if review is sought in the
United States Supreme Court, on the date that that court
issues its final order in the case. Section 46-21-102(1),
MCA. Clary's conviction was final on May 8, 2012. Clary
filed the current petition three and a half years later.
Clary's petition for postconviction relief is statutorily
However, a claim alleging newly discovered evidence that, if
proved would establish that the petitioner did not engage in
the criminal conduct for which the petitioner was convicted,
is an exception to the general rule, allowing the petitioner
more time to file. Section 46-21-102(2), MCA. This 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. Clary argues
Judge Macek's medical retirement is newly discovered
evidence that shows she was not competent while presiding
over his case. Nothing in Clary's petition suggests or
establishes that he did not engage in the criminal conduct
for which he was convicted. Clary has not satisfied the
statutory requirements for filing a second petition.
Clary also argues that Judge Macek was not impartial. This
claim was previously raised and rejected by both the District
Court and Montana Supreme Court and is therefore procedurally
barred. Section 46-21-105(1)(b), (2), MCA; Clary v.
State, No. DA 15-0242, 2015 MT 277N, ¶ 9, 2015
Mont. LEXIS 470.
Based on our review of the record, we hold that the District
Court was correct when it concluded that Clary did not
satisfy the statutory requirements that would ...