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MacGregor v. State

Supreme Court of Montana

April 3, 2018

JEREMY MacGREGOR, Petitioner and Appellant,
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: January 31, 2018

          APPEAL 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.

          For Appellant: Jeremy Steven MacGregor, Self-Represented.

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana



         ¶1 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.

         ¶2 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.

         ¶3 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.

         ¶4 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.

         ¶5 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.

         MacGregor appeals the denial.

         ¶6 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.

         ¶7 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, ΒΆ 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 ...

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