No. 87-469 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plantiff and Respondent, 

-vsFRED LEE PERRY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bell & Marra; Antonia P. Marra & Barbara E. Bell 

argued, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

Patrick L Paul, County Attorney, Great Falls, Montana 

Stephen Hudspeth, Deputy County Atty., Great Falls 

Submitted: May 10, 1988 

Decided: June 30, 1988 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Following trial by jury in the District Court of the 

Eighth Judicial District, Cascade County, Perry was convicted 

of second degree murder in connection with the death of 14 

year old Vicki Renville in 1971. Perry appealed his judgment 

of conviction to this Court alleging, inter alia, ineffective 

assistance of counsel, insufficient corroboration of 

accomplice testimony, and improper failure to grant a new 

trial. Justice John C. Harrison wrote the opinion which 

affirmed the conviction. See State v. Perry (1973), 161 

Mont. 155, 505 P.2d 113. 

On April 21, 1987, Perry moved for an indigency 

determination, appointment of counsel, and a new trial or 

other appropriate relief based on the alleged recantation of 

his accomplice, Michael Stillings. Perry later argued that 

the State had also failed to provide his counsel with 

exculpatory evidence during the initial trial. Following a 

hearing on the matter, the District Court of the Eighth 

Judicial District, Cascade County, entered findings of fact, 

conclusions of law and an order denying relief. Perry 

appeals from the District Court's judgment. We affirm. 

The issues before this Court are: 

1. Is the failure to provide Perry with exculpatory 

evidence res judicata? 

2. Did the District Court correctly determine that 

Stillings' 1971 trial testimony was presumed truthful? 

3. Did the District Court accord Perry a full and fair 

hearing? 

FACTS 
The body of Vicki Renville was discovered by a 

motorcyclist on a county road near Great Falls on February 

24, 1971. Following an autopsy, Dr. Jack Henneford, the 

pathologist who examined the body, determined that Vicki 

Renville had died from multiple blows to the left side of the 

head, resulting in fractures of the skull and extensive 

bleeding within the cranial cavity. Dr. Henneford also 

ascertained two recent disruptions of the hymen; that 

Renville had been dead at least eight hours when discovered; 

and that she had lived an hour or more after the blows had 

been inflicted. He testified that the fatal injury could 

have been inflicted by a tire iron and that she had several 

wounds on her hands consistent with her possible attempt to 

block the blows. 

When initially interviewed about his whereabouts on the 

night of the murder, Perry stated he had been at home all 

evening, watching television and had later gone to bed. 

However, he subsequently contacted the Cascade County 

Sheriff? Office from the Missoula County jail and indicated 

he had information concerning the death of Renville. 

Following his transfer to the Cascade County Jail, he 

informed Cascade County law enforcement officials that 

Michael Stillings might be responsible for the death. 

Stillings was subsequently apprehended in Seattle, 

Washington. When questioned about the Renville murder by 

Cascade County Deputies, Stillings gave a confession in which 

he stated that he had accidentally struck the victim with a 

stick when Renville startled him. Stillings also indicated 

that he was under the influence of drugs at the time of the 

murder and was attempting to retrieve some cached drugs when 

Renville came upon him. The Stillings confession was used in 

support of leave to file an information against him. 
Following his transportation to Great Falls, Stillings 

was placed in the Cascade County Jail. While incarcerated, 

Cascade County jailers intercepted four notes from Stillings 

to family and friends. The notes indicated that the death 

was an accident and requested that various people help him 

establish an alibi. However, the final letter, in essence, 

indicated that Stillings was not willing to keep quiet and 

take the fall for someone else "this time." Shortly 

thereafter, Stillings informed law enforcement officials that 

Perry had murdered Renville with a tire iron after both men 

had raped her. 

At the initial trial of Perry, Stillings testified that 

he first encountered Renville at 9:00 p.m. on February 23, 

1971. Following a brief conversation, Stillings and Renville 

went "cruising up and down the drag," and then to the Great 

Northern train depot where he bought two hits of LSD. At 

approximately 10:OO p.m., Renville was dropped off at Sandy's 

Drive-In. The testimony of Chris Shatto confirms that 

Renville was alive and with Stillings at this time. 

Stillings then picked up Dick Maxwell and proceeded to 

Perry's residence, where a number of people were watching a 

movie entitled "The Eye of the Cat." Renville was not with 

them. 

Following the movie, Perry, Stillings, Chris Shatto and 

Joanne Kimbell motored to a house located on the north side 

of Great Falls, where Shatto and Kimbell were dropped off. 

Perry and Stillings then headed toward down-town Great Falls. 

Stillings testified that he and Perry observed Renville 

walking about a block from Sandy's Drive-In. Following their 

offer of a ride, Renville entered the car with Perry and 

Stillings. The group then proceeded to an area known as 

Wadsworth Park. 
Upon reaching Wadsworth Park, Stillings informed 

Renville that he wanted to have intercourse. When Renville 

refused, Stillings testifed that he placed a knife against 

her throat and said "or else." Both Stillings and Perry 

raped Renville. Following the attacks, Renville exited the 

car. When she threatened to "rat," Stillings witnessed Perry 

strike her on the head repeatedly with a tire iron. Perry 

and Stillings then fled the scene. Shortly thereafter (12:30 

a.m.), they picked up Mike Baldwin and Jim Duvall in an 

attempt to establish an alibi. Stillings later changed his 

car tires and disposed of the tire iron. 

The State at trial also presented evidence that the coat 

worn by Perry on the night of the murder was spotted with 

human blood. In addition, JoAnn Wittke testified that Perry 

had informed her that a big guy and a small guy had killed 

Renville and then had thrown some car tires in the river. 

Perry and Stillings could be described as a big guy and a 

small guy. 

Although his counsel vigorously cross-examined Stillings 

concerning his confession, Perry did not take the stand 

during the 1971 trial, nor did he present evidence in support 

of his alibi defense. However, Perry had earlier given a 

statement to the officers in which he indicated that he was 

at home all evening and went to bed at midnight. He later 

gave a sworn statement, in the presence of counsel, in which 

he stated he was with Stillings and Renville just prior to 

the murder but had been dropped off at Debbie Phillip's 

house. Pursuant to this version of the night in question, 

Perry was alleged to have been making love during the time of 

the murder. He was then picked up by Stillings while walking 

home. They encountered Mike Baldwin and Jim Duvall shortly 

thereafter. 
Neither Debbie Phillips nor her mother confirmed Perry's 

story nor testified at trial. They did, however, before 

Perry's trial, give sworn statements which apparently 

contradicted Perry's story. When informed of this state of 

affairs, and the fact that his counsel had a copy of the 

statements, Perry, surprised, responded "what?" Due to the 

passage of time, the original sworn statements by Debbie 

Phillips and her mother could not be found. However, Perry 

and his counsel acknowledged that the second explanation of 

the night of the murder was a fabrication. 

Perry was subsequently convicted of second degree 

murder. He then moved for, and received, the appointment of 

new counsel immediately following the conviction. 

Replacement counsel, Mr. Randono, thereafter moved for a 

new trial, alleging, inter alia, that the State failed to 

provide, pursuant to a discovery motion, the defense with 

exculpatory evidence, specifically, Stillings' Seattle 

confession and a letter from Stillings to Mona Brown which 

indicates the death was accidental. The motion was 

subsequently denied and the issue of exculpatory evidence was 

not raised on the initial appeal. The record is generally 

unclear as to which documents Perry received pursuant to the 

motion. However, Perry's trial counsel stipulated that the 

State had complied with the discovery request the day of 

trial and Stillings was cross-examined on the basis of his 

confession. In addition, Perry did not call his former 

attorneys to the witness stand during the 1987 hearing. 

For a period of 15 years, Stillings was content to abide 

by his trial testimony. However, in 1986, Stillings learned 

that he and Perry would be incarcerated in the same prison 

for the first time. Shortly after Perry arrived, Stillings 

determined that his new found faith demanded that he come 

forward with the truth in order to relieve his conscience. 
Stillings contacted Perry through an intermediary and gave a 

sworn statement recanting his trial testimony shortly 

thereafter. Although Stillings indicated he originally 

confessed out of fear for his safety, he contends that his 

recantation was not motivated by similar concerns. 

Following Stillings' recantation, Perry immediately 

filed a motion for an indigency determination, appointment of 

counsel, and a new trial or other appropriate relief. 

However, he did not raise the issue of the State's failure to 

provide exculpatory documents in his pleading nor was the 

pleading ever amended to include such a claim. Counsel 

indicates that the exculpatory documents were not discovered 

until shortly before the hearing. 

Stillings' recantation testimony is that he encountered 

Renville between 6:00 and 9:00 p.m. as she was walking to a 

store. Shortly thereafter, she and Stillings drove to the 

train depot where they parked and talked to some friends. 

Stillings then drove to Wadsworth Park with the avowed 

purpose of raping Renville. 

Upon reaching the desired location, Stillings claims 

that he displayed a knife and told Renville to get undressed. 

Following the rape, both parties dressed and exited the car. 

Stillings testified that he then struck Renville with a tire 

iron and fled the scene. He went to Perry's residence 

immediately thereafter in order to establish an alibi. 

However Stillings' recantation conflicts with the testimony 

of Chris Shatto. She testified that she saw Renville and 

Stillings together after the time Stillings had allegedly 

killed her. In addition, the recantation also conflicts with 

Perry's second version of the murder. 

Perry also took the stand. Under this version of the 

night in question, he remained at his home all evening except 

for 30-45 minutes sometime between 11:OO p.m. and midnight. 
At that time, he and Stillings had given Chris Shatto and 

Joann Kimbell a ride to another residence. Perry then 

returned home and worked on a .30 caliber machine gun until 

3:00 or 4:00 a.m. 

Although additional witnesses testified or submitted 

affidavits, the last major witness was Rande Branden, a long 

time friend of Stillings who is currently incarcerated with 

Stillings on an unrelated homicide conviction. Branden 

testified that he had encountered Stillings three times on 

the evening in question. One occasion, Branden said, was 

when Stillings appeared at his home, at approximately 7:30 

p.m., in a dazed and confused mental state. At that time, 

Stillings rambled incoherently, but Branden was able to 

decipher the word "dead" at least twice. Stillings then 

removed his pants for no apparent reason and was given 

another pair of pants by Branden. 

Approximately two days later, Branden claims he surmised 

that Stillings may have committed the Renville murder. Upon 

examining Stillings' pants, he observed dark spots he 

suspected to be blood. He then cut the pants into pieces and 

flushed them down a toilet. Stillings has never indicated 

that he had contact with Branden on the night of the murder. 

Stillings did testify, however, that he had washed his own 

clothes and a letter was introduced into evidence in which 

Stillings asked Branden to testify that he had been with 

Stillings. The District Court labelled the testimony 

"incredible." 

PROCEDURE 

The State initially argues that although denoted a 

motion for new trial or other appropriate relief, Perry's 

pleading is a petition for post-conviction relief. 

Consequently, Perry's claims would be barred pursuant to the 

five year statute of limitations imposed by § 46-21-102, MCA. 
However, upon examination of Perry's motion, we find that 

Perry alleges, in essence, that he is being unlawfully 

detained in violation of his constitutional rights, put 

bluntly, that the State of Montana has unjustly incarcerated 

an innocent man for a period of 17 years on the basis of a 

flawed conviction. 

Although Perry could not have brought his claim until 

the recantation occurred in 1986, the State would have us 

find that Perry's only means of redress is a petition for 

post-conviction review and that the statutory clock on such 

petitions ran in 1978. We decline to do so. Under the 

interpretation urged by the State, a defendant held in 

violation of his constitutional rights would be deprived of a 

method of redress regardless of his diligence or the justness 

of his claim. We do not believe such a result to be the 

intent of the legislature nor consistent with our State 

Constitution. See 1972 Montana Constitution, Art. 11, § 17. 

The central function of the courts is the achievement of 

justice. However, like all endeavors of man, the search for 

justice is not without occasional flaws. From the time of 

the Magna Charta, the Great Writ of Habeas Corpus has been 

liberally employed as a means of guaranteeing that this 

judicial goal be accomplished and that a miscarriage of 

justice will be remedied. See 3 Blackstone Comm. at 129 et. 

seq. For at its heart, the writ represents an 

acknowledgement of the principle that the rights of freedom 

of the individual are worthy of protection. 

Whereas Perry's motion for a new trial cannot 

technically be denoted a petition for habeas corpus, nor do 

we treat it as such, the claim nevertheless sounds in the 

nature a petition for habeas corpus. We determine that in 

this case, the single issue is whether Perry is entitled to a 
new trial based on the proffered evidence of another person 

doing the criminal act for which Perry was convicted. 

The burden of proof in such cases is stringent. In 

order to receive a new trial Perry must demonstrate that he 

has been the victim of an unjust conviction which has 

resulted in his unlawful detention. We conclude that he has 

failed to do so. 

EXCULPATORY EVIDENCE 

The first specification of error concerns the State's 

alleged failure to provide Perry with exculpatory evidence in 

violation of his right to due process of law, as guaranteed 

by the Fourteenth Amendment, and his Fifth Amendment right to 

a fair trial. More precisely, that the mandate of Brady v. 

Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 

and State v. Craig (1976), 169 Mont. 150, 545 P.2d 649, 

demands that a new trial be granted because the State's 

negligent failure to provide Perry with the letters and 

confession of Michael Stillings was of such a material and 

substantial nature as to have changed the verdict of the 

jury. However, the District Court found the issue to be res 

judicata. We agree. 

While the mandate of due process and Art. 11, $ 16 of 

the Montana Constitution guarantees every person access to 

the courts, it cannot be said that such rights grant a person 

license to relitigate a cause or to burden the resources of 

the court with successive claims which could have been 

brought in one action. As one court has stated: "judicial 

economy dictates restrictions on reruns." Coleman v. State 

(Mont. 1981), 633 P.2d 624, 630, 38 St.Rep. 1352, 1359, 

cert.den. 455 U.S. 983, 106 S.Ct. 983, 71 L.Ed.2d 693, citing 

United States ex rel. Townsend v. Twomey (7th Cir. 1971), 452 

F.2d 350, 357, cert.den. 409 U.S. 854, 93 S.Ct. 190, 34 

L.Ed.2d 98. 
Similarly, the public interest in finality of judgments 

also weighs heavily against serial litigation. See Murray v. 

Carrier (1986), 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397. 

The doctrine of res judicata is an embodiment of both 

principles. See Wellman v. Wellman (1982), 198 Mont. 42, 643 

P.2d 573. It stands for the proposition that there must be 

an end to litigation at some point. First Bank v. Fourth 

Judicial Dist. (Mont. 1987), 737 P.2d 1132, 1134, 44 St.Rep. 

861, 864. Consequently, once a party has had full 

opportunity to present a claim or issue for judicial decision 

in a given proceeding, the judgment of that court will be 

deemed final as to all claims or issues which have been 

raised or which fairly could have been raised. Wellman, 198 

Mont. at 45-46, 643 Mont. at 575. 

In Taggard v. Rutledge (D. Mont. 1987), 657 ~.Supp. 

1420, the Court examined the nature, as well as this Court's 

treatment, of the doctrine of res judicata. It stated: 

Res judicata principles embody two concepts. 

'Issue preclusion' refers to the preclusive effect 

of a judgment in foreclosing litigation of a matter 

that has been litigated and decided. [Cite 

omitted.] In contrast, 'claim preclusion' refers 

to the preclusive effect of a judgment in 

foreclosing litigation of matters that should have 

been raised in an earlier suit. . . . 

The Montana Court has recognized the distinction 

between claim preclusion and issue preclusion, 

though not always articulating the precise 

definitions thereof. [Cite omitted.] When 

directly confronted with the issue, however, the 

Court clearly has followed the general rule 

governing claim preclusion. As early as 1935, the 

Court has recognized that a judgment is "binding 

and conclusive between the parties to the suit and 

their privies and successors in interest, as to all 

matters adjudicated therein and as to all issues 

which could have been properly raised, 

irrespective, of whether the particular matter was 

in fact litigated." [Citation omitted.] 
In the instant case, Perry does not contend that the 

prosecuting attorney purposely suppressed exculpatory 

evidence. Rather, the alleged suppression is said to have 

been the result of good faith negligence. Unfortunately, the 

record is generally silent as to which documents Perry did or 

did not receive from the State as neither the prosecuting 

attorney nor any of Perry's three attorneys from 1971 

testified. However, the record does disclose that Perry's 

trial counsel informed the court that the State had complied 

with Perry's discovery request; that Stillings was 

cross-examined concerning his earlier confession; and that 

replacement counsel Randono moved for a new trial on the 

basis of the State's failure to provide Perry with Stillings' 

Seattle confession and the letter from Stillings to Mona 

Brown, but failed to raise the claim during the 1973 appeal. 

The State contends that Perry's failure to raise the 

exculpatory evidence claim on the initial appeal following 

the District Court's denial of the motion for new trial is 

sufficient to invoke the claim preclusion facet of res 

judicata. Upon examination, we find the State to be correct. 

In order for res judicata to bar reconsideration of a 

claim, four elements must be present: 

(1) the parties or their privies must be the same; 

(2) the subject matter of the action must be the 

same; (3) the issues must be the same, and must 

relate to the same subject matter; and (4) the 

capacities of the persons must be the same in 

reference to the subject matter and to the issues 

between them. [Citation omitted.] 

Coleman, 633 P.2d at 630, 38 St.Rep. at 1358. 

Although Perry argues that the "new" discovery of the 

existence of exculpatory evidence precludes satisfaction of 

the second, third, and fourth elements of the Coleman test, 
we do not find the allegedly "new" evidence to be 

controlling. The fact remains that the claim pits the same 

plaintiff and defendant against each other on the basis of a 

claim that Perry is entitled to a new trial because the State 

failed to provide exculpatory evidence, part of which was 

listed in the 1971 motion. While Perry may not have been 

aware of all the documents at that time, he was 

unquestionably aware of the existence of two documents and 

could have raised the claim on his initial appeal. The 

Coleman test is clearly satisfied. 

THE RECANTATION 

The second specification of error concerns the District 

Court's failure to grant a new trial on the basis of 

Stillings' recantation. Perry does not attack the District 

Court's factual findings that Stillings was not credible; 

that Stillings' recantation could not be true because it 

conflicted with the testimony of other witnesses; that 

Stillings recanted out of fear for his life; that Perry lied 

on the stand; or that the testimony of Rande Branden is 

incredible. Rather, he contends that the District Court 

improperly applied the presumption of truthfulness to 

Stillings' 1971 testimony but not the subsequent recantation. 

As a result, Perry claims he was forced to shoulder the undue 

burden of proving the 1971 testimony was false. 

The District Court's reference to the presumption of 

truthfulness surrounding Stillings' 1971 testimony, in 

effect, adopts the prevailing judicial attitude that recanted 

testimony is to be viewed with great suspicion. State v. 

Tharp (Iowa 1985), 372 N.W.2d 280; State v. Norman (Kan. 

1982), 652 P.2d 683; In Re Weber (Cal. 1974), 523 P.2d 229; 

Thacker v. Commonwealth (Ky. 1970), 453 S.W.2d 566; People v. 

Nash (Ill. 1967), 222 N.E.2d 473; State v. Wise (Ariz. 19661, 

419 P.2d 342. We believe the rule to be well reasoned. 
On its face, recanted testimony demonstrates the 

unreliability of a witness. In addition, it also raises 

other inquires: what motive would cause a person to subject 

himself to a potential perjury prosecution? In many cases, 

the answer is fear. See e.g., State v. Sena (N.M. 1987), 736 

P.2d 491 (defendant's family intimidated recanting witness 

with threats and acts of physical violence). Perry argues, 

however, that Stillings' recanted testimony is also entitled 

to a presumption of truthfulness and that the recantation per 

se mandates a new trial. Accord, State v. York (wash. App. 

1985), 704 P.2d 1252. However, to grant a person of 

questionable credibility and motive carte blanche to overturn 

the determination of a jury operating within the bounds of 

our constitutional protections is not conducive to the sound 

administration of justice. People v. Shilitano (N.Y. App. 

1916), 112 N.E 733; Accord, State v. Miller (Mont. 1988), - 

P.2d - , 45 St.Rep. 790; State v. Greeno (1959), 135 Mont. 

580, 342 P.2d 1052. 

In light of the inherent suspicion surrounding recanted 

testimony and the public interest in swift and sure justice, 

we believe the better reasoned approach to be that adopted by 

the Supreme Court of Kansas: 

When a new trial is sought on the basis of 

recanting testimony of a prosecution witness, the 

weight to be given such testimony is for the trial 

judge passing on the motion for a new trial to 

determine. [Citations omitted. ] The trial judge 

is required to grant a new trial only when he [or 

she] is satisfied the recantation of the witness is 

true. 

Norman, 652 P.2d at 689; see also, Thacker, 453 S.W.2d at 

568; Nash, 222 N.E.2d at 478. We accordingly adopt the same. 

Absent a clear abuse of discretj.on, the decision of the 

District Court will be upheld. 
In the instant case, Stillings' recantation appears to 

be newly discovered perjury, not newly discovered evidence. 

As the District Court noted, the current versions of the 

night in question do not conform to the testimony of the 

other witnesses; the evidence presented at trial; Perry's 

prior statements; nor does it account for Perry's whereabouts 

at the time of the murder. It does strain the imagination, 

however. We conclude that Perry has failed to demonstrate 

the 1971 testimony was false. 

ADEQUACY OF THE PROCEEDING 

Finally, it is argued that the court improperly relied 

on affidavits submitted after the hearing in violation of 

Rule 59, M.R.Civ.P.; refused to accept the proffered 

affidavits of two witnesses; and improperly relied on Perry's 

unsigned statements. We disagree. 

Rule 59 (c) , M. R.Civ.P. provides that the party opposing 

a motion for new trial has ten days in which to file 

affidavits. However, Perry's pleading cannot be denoted a. 

motion for new trial within the meaning of Rule 59 as the ten 

day filing deadline expired in 1971. See 59 (b) , M.R.Civ. P. 

Rather, the pleading sounds of a petition for habeas corpus. 

The crucial question is therefore whether the fact finding 

procedure employed by the District Court was adequate to 

afford Perry a full and fair hearing. See, Townsend v. Sain 

(1963), 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; Little 

Light v. Crist (9th Cir. 1981), 649 F.2d 682. 

Perry's allegation that the District Court's acceptance 

of two affidavits immediately following the hearing is 

reversible error is not convincing. The record discloses 

that Perry was provided two highly capable and diligent 

attorneys; that he was provided the services of a court 

reporter to take depositions at no expense; that he was 

provided adequate notice; that he was allowed to confront and 
cross-examine witnesses; that he presented witnesses in his 

behalf; that he was personally present and took the witness 

stand; and that exhibits offered on his behalf were admitted 

into evidence. In addition, Perry did not request a 

continuance nor did he submit additional evidence following 

notice of the affidavits. Perry clearly had a full and fair 

hearing. 

Similarly, Perry's contention that the District Court 

improperly refused to accept the affidavits of two witnesses 

is equally without merit. A review of the record indicates 

that the court did not refuse to accept the affidavits of 

Shatto and Kimbell. Rather, the court offered to accept 

counsel's offer of proof in lieu of the affidavits. Perry's 

decision not to submit the affidavits will not now be heard 

to constitute error. 

Finally, it is contended that the court's acceptance of 

Perry's sworn statement from 1971 was error because the 

statement was not signed by him as required by Rule 30(e), 

M.R.Civ.P. However, we note that district courts are not 

strictly bound by all the rules of civil procedure in this 

type of proceeding. See generally, Coleman, supra (although 

post-conviction review is civil in nature, not all civil 

procedures are applicable); In Re Hart (19781, 178 Mont. 235, 

583 P.2d 411 (habeas corpus may be either civil or criminal 

in nature); Schlanger v. Seamans (1971), 401 U.S. 487, 91 

S.Ct. 995, 28 L.Ed.2d 251 (although habeas corpus is 

generally a civil action, it is not automatically subject to 

all the rules governing civil actions); Harris v. Nelson 

(1969), 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 

(characterization of habeas corpus proceeding as "civil" is 

gross and inexact, the proceeding is essentially unique). 

The crucial question is again whether the procedure employed 

by the District Court comports with Perry's right to a full 
and fair hearing. See, Townsend, supra; Little Light, supra. 

We find that it did. 

In the instant case, Perry contended that Stillings' 

recantation, in conjunction with his latest version of the 

night in question, demonstrated that the State of Montana was 

unlawfully detaining him on the basis of an unjust verdict. 

Under such circumstances, it is clearly relevant, and fair, 

for the District Court to examine Perry's prior explanation 

of the night of the murder. Particularly, when such 

statements were originally obtained in the presence of 

Perry's counsel and Perry had an opportunity to explain the 

statements at the 1987 hearing. 

In light of our discussion above, it is clear that Perry 

has failed to demonstrate that he is being unlawfully 

detained. The judgment of the District Court is affirmed. 

We Concur: 

Jbstices