ROBERT S. PIERCE, Petitioner and Appellant,
STATE OF MONTANA, Respondent and Appellee.
Submitted on Briefs: March 27, 2019
FROM: District Court of the Third Judicial District, In and
For the County of Anaconda-Deer Lodge, Cause No. DV-17-59
Honorable Brad Newman, Presiding Judge.
Appellant: Robert S. Pierce, Self-Represented, Deer Lodge,
Appellee: Timothy C. Fox, Montana Attorney General, Mardell
Ployhar, Assistant Attorney General, Helena, Montana.
Krakowka, Anaconda-Deer Lodge County Attorney, Anaconda,
Guzynski, Mary Elizabeth Cochenour, Special Deputy County
Attorneys, Helena, Montana
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
Robert S. Pierce appeals from an order of the Third Judicial
District Court, Anaconda-Deer Lodge County, denying his
petition for postconviction relief. We affirm.
On April 25, 2013, a jury convicted Pierce of sexual
intercourse without consent and sexual assault involving his
step-granddaughter, M.R., who was nine years old when the
first offense occurred. Pierce was sentenced to forty years
in prison, with fifteen years suspended for the rape, and
twenty-five years in prison for the sexual assault, to run
concurrently. On July 6, 2017, Pierce filed a pro se petition
for postconviction relief, asserting twelve independent
grounds for relief. The District Court denied Pierce's
petition and request for appointment of counsel. Pierce
This Court reviews a district court's denial of a
petition for postconviction relief to determine whether the
court's findings of fact are clearly erroneous and
whether its conclusions of law are correct. Marble v.
State, 2015 MT 242, ¶ 13, 380 Mont. 366, 355 P.3d
742. Discretionary rulings in postconviction relief
proceedings, including rulings related to whether to hold an
evidentiary hearing, are reviewed for an abuse of discretion.
Marble, ¶ 13. Claims of ineffective assistance
of counsel constitute mixed questions of law and fact that we
review de novo. Weaver v. State, 2005 MT 158, ¶
13, 327 Mont. 441, 114 P.3d 1039.
A person adjudged guilty of an offense who has no adequate
remedy of appeal may petition the court for postconviction
relief pursuant to § 46-21-101, MCA, alleging the
sentence violates "the constitution or the laws of this
state or the constitution of the United States." A
person seeking postconviction relief bears 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. A postconviction
petition must identify all facts supporting the grounds for
relief set forth in the petition and have attached
affidavits, records, or other evidence establishing the
existence of those facts. Section 46-21-104(1)(c), MCA. Mere
conclusory allegations are insufficient to support a
petition. Marble, ¶ 38.
The first issue raised on appeal is whether the District
Court erred in denying Pierce's claim of actual innocence
based on Pierce's failure to sufficiently plead the claim
and provide evidentiary support. To prevail on a substantive
actual innocence claim, the petitioner must first show by
clear and convincing evidence that, but for a procedural
error, no reasonable juror would have found him or her guilty
of the offense. Beach v. State, 2009 MT 398, ¶
44, 353 Mont. 411, 220 P.3d 667.
To support his claim of actual innocence, Pierce argues: (1)
documents from his post-trial civil case demonstrate Pierce
was wrongfully convicted; (2) a law enforcement officer, Bill
Sather, impermissibly disclosed information to the media; (3)
the victim's mother and Sather conspired to get Pierce
convicted; (4) the transcripts of M.R.'s pretrial
interviews were deemed inadmissible but then improperly
considered by the therapist conducting the psychosexual
offender evaluation; and (5) the therapist determined that
Pierce did not ...