Submitted on Briefs: January 31, 2018
FROM: District Court of the First Judicial District, In and
For the County of Lewis And Clark, Cause No. BDV-2014-951
Honorable DeeAnn Cooney, Presiding Judge.
Appellant: Jeremy Steven MacGregor, Self-Represented.
Appellee: Timothy C. Fox, Montana Attorney General, Tammy A.
Hinderman, Assistant Attorney General, Helena, Montana, Leo
J. Gallagher, Lewis and Clark County Attorney, Helena,
JEREMIAH SHEA JUSTICE.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion, 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.
Jeremy Steven MacGregor ("MacGregor") appeals the
Order of the First Judicial District Court, Lewis and Clark
County, dismissing his petition for postconviction relief
("PCR"). We affirm.
Following an incident on April 15, 2010, the State charged
MacGregor with two counts of attempted deliberate homicide
for shooting his then-wife and live-in nanny. MacGregor was
initially represented by a public defender, but insisted on
representing himself. The District Court allowed him to
proceed with a public defender as standby counsel. On
February 28, 2011, a jury convicted MacGregor of two counts
of attempted deliberate homicide in violation of §
45-5-102, MCA. The District Court sentenced MacGregor to 100
years for each count, with the sentences to run concurrently.
The District Court also restricted MacGregor's parole
eligibility for fifty years.
MacGregor appealed, arguing ineffective assistance of counsel
("IAC"). The Office of Appellate Defender
represented MacGregor on his direct appeal. Due to his
dissatisfaction with appointed appellate counsel, however,
MacGregor fired his appellate counsel and proceeded pro se.
MacGregor's pro se appeal was rejected by this Court due
to his failure to comply with the Montana Rules of Appellate
Procedure. MacGregor requested new counsel, and this Court
re-appointed appellate counsel from the Office of Appellate
Defender. On October 15, 2013, this Court affirmed
MacGregor's convictions. State v. MacGregor,
2013 MT 297, 372 Mont. 142, 311 P.3d 428.
MacGregor petitioned for rehearing, arguing that this Court
overlooked certain material facts. The petition was denied.
On December 5, 2014, MacGregor filed a timely PCR petition
pursuant to § 46-21-102(1), MCA. The District Court
evaluated the record and PCR petition and did not require the
State to respond. On October 6, 2016, the District Court
issued an Order denying MacGregor's petition, holding:
Upon review of Petitioner's verified petition for
postconviction relief and brief in support, this Court finds
that MacGregor's brief fails to prove by a preponderance
of the evidence that he is entitled to relief. In challenging
the effectiveness of his [appellate counsel], MacGregor
relies largely on conclusory allegations and fails to
establish the two-prongs of Strickland.
appeals the denial.
We review a district court's denial of a petition for
postconviction relief to determine whether the district
court's findings of fact are clearly erroneous and
whether its conclusions of law are correct. Haagenson v.
State, 2014 MT 223, ¶ 8, 376 Mont. 239, 332 P.3d
268; State v. Jenkins, 2001 MT 79, ¶ 9, 305
Mont. 95, 23 P.3d 201. We review discretionary rulings in PCR
proceedings, including rulings relating to whether to hold an
evidentiary hearing, for an abuse of discretion. Hamilton
v. State, 2010 MT 25, ¶ 7, 355 Mont. 133, 226 P.3d
588. We review claims of ineffective assistance of counsel de
novo. State v. Cobell, 2004 MT 46, ¶ 8, 320
Mont. 122, 86 P.3d 20.
A PCR petition may not be based upon grounds for relief that
were or could reasonably have been raised on direct appeal.
Section 46-21-105(2), MCA; Rukes v. State, 2013 MT
56, ¶ 8, 369 Mont. 215, 297 P.3d 1195. The petition must
identify all facts that support the claims for relief.
Section 46-21-104(1), MCA; Kelly v. State, 2013 MT
21, ¶ 9, 368 Mont. 309, 300 P.3d 120. The petitioner has
the burden to show by a preponderance of the evidence that
the facts justify relief. Griffin v. State, 2003 MT
267, ¶ 10, 317 Mont. 457, 77 P.3d 545; Ellenburg v.
Chase, 2004 MT 66, ¶ 12, 320 Mont. 315, 87 P.3d 473
(citing § 46-21-104, MCA); Cobell, ¶ 14
(stating that a petitioner seeking to reverse a district
court's denial of a PCR petition, "bears a heavy
burden. . . ."). If a district court determines that
"the petition and the files and records of the case
conclusively show that the petitioner is not entitled to
relief, " the ...