No. 93-555 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vANTHEL L. BROWN, 

Defendant and Petitioner. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Anthel L. Brown, Deer Lodge, Montana (pro se) 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, Elizabeth 

L. Griffing, Assistant Attorney General, Helena, 

Montana; Mike Salvagni, Gallatin County Attorney, 

Bozeman, Montana 

Filed: 

Submitted on Briefs: August 11, 1994 

Decided: October 4, 1994 
Justice Fred J. Weber delivered the Opinion of the Court. 

Petitioner Anthel L. Brown appeals the denial of his second 

petition in the Judgment on Motion for Post Conviction Relief by 

the District Court of the Eighteenth Judicial District, Gallatin 

County. We affirm. 

Defendant raises the following issues in his petition for 

post-conviction relief: 

I. Whether the petition for post-conviction relief is timebarred under § 46-21-102, MCA. 

11. Whether the District Court erred in not appointing 

counsel for petitioner for purposes of this appeal. 

111. Whether the District Court erred in not holding an 

evidentiary hearing. 

In 1976, appellant was convicted by guilty plea of felony 

theft, deliberate homicide, sexual intercourse without consent, 

robbery, and aggravated assault. Brown entered his guilty plea 

against the advice of counsel. He was sentenced to a total of 190 

years in the Montana State Prison. 

In 1978, Brown, represented by the Defender Project at the 

University of Montana School of Law, filed a petition for postconviction relief in this Court, alleging his guilty plea was 

involuntary. This Court remanded the matter for an evidentiary 

hearing. 

After the evidentiary hearing in District Court, Brown's first 

post-conviction petition and request to withdraw his guilty plea 

were denied. The denial was affirmed on appeal to this Court after 

2 
a thorough review. See In the Matter of Brown (1980), 185 Mont. 

200, 605 P.2d 185. Brown then sought habeas corpus relief in 

federal court on essentially the same grounds that he had raised in 

state courts. This relief was denied. See Brown v. Crist (D. 

Mont. 1980), 492 F. Supp. 965, aff'd without published opinion, 654 

F.2d 728 (9th Cir. 1981), cert. denied, 454 U.S. 1087, 102 S.Ct. 

648, 70 L.Ed.2d 624 (1981). 

Thirteen years later, Brown filed his second petition for 

post-conviction relief, alleging again that his guilty plea was 

involuntary and further alleging ineffective assistance of counsel. 

The ~istrict Court denied the petition because it was not filed 

within the five-year statutory period provided for in 5 46-21-102, 

MCA . 

Issue I: Statute of Limitation 

Defendant contends the District Court erred in finding he was 

procedurally barred by the five-year period in § 46-21-102, MCA, 

because that statute went into effect in 1981. However, 5 46-21- 

102, MCA, was enacted after this Court's decision in In re McNair 

(1980), 189 Mont. 321, 615 P.2d 916, which held that a defendant 

who waited eight and one-half years after the conviction before 

filing his petition for post-conviction relief seeking to withdraw 

his guilty plea had waited too long to seek relief. Thus, even 

before the enactment of the five-year time bar, case law prohibited 

filing a petition after eight and one-half years. 

Brown waited thirteen years after being denied certiorari by 

the United States Supreme Court before initiating this proceeding-- 
nearly eighteen years after his guilty plea. The five-year time 

bar is mandatory and jurisdictional. We conclude Brown's petition 

was properly denied by the District Court. 

Issue 11: Risht to Counsel 

Brown filed a motion for Appointment of Counsel along with his 

notice of appeal in this matter. Brown contends he is entitled to 

counsel in this appeal from his denial of post-conviction relief. 

The right to counsel is guaranteed by the Sixth Amendment of the 

United States Constitution at "critical stages1' of a proceeding. 

See, e.q., State v. Black (1990), 245 Mont. 39, 43, 798 P.2d 530, 

532. Proceedings for post-conviction relief are not considered as 

'Icritical stages1! but rather as collateral attacks which are civil 

in nature and, thus, are not governed by the Sixth Amendment right 

to counsel. Black, 798 P.2d at 532. We conclude the District 

Court correctly denied assistance of counsel for this appeal. 

Issue 111: Evidentiary Hearinq 

Brown recognizes in his brief that the post-conviction relief 

procedure is civil in nature and independent of his criminal case. 

However, he contends it is error to deny an application for postconviction relief without an evidentiary hearing if the allegations 

have merit or would otherwise entitle the petitioner to relief. If 

Brown's post-conviction petition were not time-barred, he in fact 

would be entitled to an evidentiary hearing like the hearing 

granted in his first petition for post-conviction relief. Because 

this petition is time-barred, such a hearing is not warranted. We 

conclude that Brown is not entitled to an evidentiary hearing. 
Affirmed. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. 

We Concur: ,/ 

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, Chief ~ustice ,--