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Herman v. State - 2006 MT 7, 330 Mont. 267, 127 P.3d 422


A petition for postconviction relief 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. Mont. Code Ann. § 46-21-104(1)(c). A court may dismiss a petition for postconviction relief without holding an evidentiary hearing if the procedural threshold set forth in § 46-21-104(1)(c) is not satisfied. In addition, a district court may dismiss a petition for postconviction relief without ordering a response if the petition, files and records conclusively show that the petitioner is not entitled to relief; alternatively, it may order a response and, after reviewing the response, dismiss the petition as a matter of law for failure to state a claim for relief or it may proceed to determine the issue. 


An inmate who entered into a plea deal to plead guilty to the felony offense of conspiracy to commit robbery, raised several issues in his petition for postconviction relief, including his right to effective counsel and other violations on his constitutional rights. The trial court dismissed his petition. The inmate appealed this case to the Supreme Court of Montana.


Was the trial court's dismissal of the petition proper?




The court affirmed the trial court's dismissal. It held that by pleading guilty, defendant waived his right to challenge certain matters. Attachments did not establish that counsel made a particular statement that the inmate was going to "get hammered" if he went to trial. Thus, the trial court correctly found that the inmate did not meet the attachments requirements of Mont. Code Ann. § 46-21-104(1)(c) regarding his insufficient representation claim, and the claim was properly dismissed pursuant to Mont. Code Ann. § 46-21-201(1)(a) for failure to state a claim. The trial court also properly dismissed the inmate's main anxiety claim for failure to meet the attachments requirement. Contrary to argument, no hearing was required to dismiss the inmate's claims that did not meet the attachments requirement. Furthermore, Mont. Code Ann. § 46-21-105(2) barred the inmate's sentencing claim and the court declined to address the merits thereof, because the inmate provided no authority or argument that the claim could not have been raised on direct appeal.

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