DA 07-0413

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 156N

THOMAS KELLEY,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Appellee.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. DV-06-1227(c)

Honorable Kenneth R. Neill, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Thomas Kelley, (self-represented litigant); Deer Lodge, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,

Assistant Attorney General; Helena, Montana

Submitted on Briefs: March 25, 2009

Decided: May 5, 2009

Filed:

__________________________________________

Clerk

May 6 2009
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Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court 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 Self-represented petitioner Thomas Michael Kelley (Kelley) appeals from the

order of the Eighth Judicial District Court, Cascade County, denying his petition for

postconviction relief. We affirm.

¶3 The State charged Kelley with criminal mischief, burglary, criminal possession of

dangerous drugs, criminal possession of drug paraphernalia, and theft after an early

morning break-in at a pet store in Great Falls, Montana. Kelley pleaded not guilty to the

charges, and the District Court appointed Megan Lulf-Sutton from the public defender’s

office to represent Kelley. Following her appointment, Lulf-Sutton filed a motion for an

immediate hearing due to Kelley’s dissatisfaction with her representation. The District

Court held a hearing on Kelley’s complaints and thereafter, appointed Joe Gilligan to

represent Kelley.

¶4 Following a jury trial, Kelley was convicted of theft, possession of dangerous

drugs, and possession of drug paraphernalia. Kelley was found not guilty of burglary and

criminal mischief. Judge Kenneth R. Neill from Cascade County sentenced Kelley to ten

years in the Montana State Prison for theft, six months in jail for possession of dangerous
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drugs, and six months in jail for possession of drug paraphernalia, the sentences to run

concurrently. Kelley was not eligible for parole due to his extensive criminal history and

use of aliases. We affirmed Kelley’s conviction in State v. Kelley, 2005 MT 200, 328

Mont. 187, 119 P.3d 67, in which we addressed whether the evidence was sufficient to

support Kelley’s theft conviction.

¶5 On August 25, 2006, Kelley filed a motion for postconviction relief in which he

raised numerous issues, including complaints against Judge Neill, attorneys Lulf-Sutton

and Gilligan, the State, the jury, and the police. Kelley also amended his petition to

include a due process claim and a claim against the public defender system in general.

Judge Dirk Sandefur received Kelley’s petition for postconviction relief but recused

himself from the case; Judge Neill assumed jurisdiction. Thereafter, Kelley filed a

motion requesting that Judge Neill recuse himself from the postconviction proceedings.

In substance, Kelley alleged that Judge Neill was biased as demonstrated by the sentence

he imposed. Judge Neill denied Kelley’s recusal request and, after substantively

addressing each of Kelley’s numerous complaints, denied his motion for postconviction

relief. In the order denying Kelley’s petition, Judge Neill explained that postconviction

relief is not a substitute for issues that could have been addressed on direct appeal. Judge

Neill also noted that Kelley failed to provide affidavits, records, or other evidence to

support his complaints in his petition for postconviction relief. In addition, Judge Neill

concluded that Kelley’s counsel did not render ineffective assistance. In sum, the District

Court rejected each of Kelley’s complaints.
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¶6 Kelley appeals the denial of his petition for postconviction relief. Kelley’s

primary argument is that Judge Neill should have recused himself from the

postconviction proceedings. Kelley also argues that attorneys Lulf-Sutton and Gilligan

rendered ineffective assistance of counsel.

¶7 We review a district court’s denial of a petition for postconviction relief to

determine whether the court’s findings of fact are clearly erroneous and its conclusions of

law are correct. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861.

Ineffective assistance of counsel claims contain mixed questions of law and fact which

we review de novo. Whitlow, ¶ 9.

¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the District Court correctly denied Kelley’s petition for postconviction relief. Most

of Kelley’s claims could have been raised on direct appeal and are thus, procedurally

barred pursuant to § 46-21-105(2), MCA. It is also manifest on the briefs and the record

before us that Kelley has failed to demonstrate that he received ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

¶9 Affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ MIKE McGRATH

/S/ JAMES C. NELSON

/S/ JOHN WARNER

/S/ JIM RICE