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 thepetition forpost-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. Hewas 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 theevidentiary hearing in DistrictCourt,Brown's first post-conviction petition and request to withdraw his guilty plea
were denied. Thedenialwas affirmed on appeal to this Court after 2a thorough review. 

### See In the Matter of Brown (1980), 185 Mont. 200, 605 P.2d 185. Brown then sought habeas corpus relief in federalcourt on essentially the samegrounds thathe had raised in state courts. This relief was denied. 

### See Brown v. Crist (D. Mont. 1980), 492 

### F. Supp. 965,aff'dwithout 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 involuntaryand furtheralleging ineffectiveassistanceof 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 findinghe was procedurally barred by the five-year period in § 46-21-102,MCA, because that statutewent 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 filinghispetition forpost-conviction relief seeking towithdraw his guilty plea had waited too long to seek relief. Thus, even before theenactment of the five-year timebar, case lawprohibited filing a petition after eight and one-half years. Brown waited thirteen years after being denied certiorari by theUnited StatesSupreme Court before initiatingthisproceeding--nearly eighteen years after his guilty plea. The five-year time bar ismandatory and jurisdictional. We conclude Brown'spetition
was properly denied by the District Court. Issue 11: Risht to Counsel Brown filed amotion for Appointment of Counsel alongwith his notice of appeal in thismatter. Brown contendshe 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 forpost-conviction relief are not considered as 'Icriticalstages1! but rather as collateral attacks which are civil in nature and, thus, are not governed by the SixthAmendment 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 hisbrief 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 evidentiaryhearing if theallegations have merit orwould otherwise entitle thepetitioner 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 inhis firstpetition forpost-conviction relief. Because this petition is time-barred, such a hearing is notwarranted. 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, thisdecision shall not be cited as precedent and shall be published by its filingas apublic 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 ,--