No. 01-315 

IX Till3 SL7PRELfI: COliRT 01: THE ST,-ZTE OF MON-riINA 

2003 "~rr 28 

L. 

RON;\L D J ROOT, 

Deknda~it and i\ppcllant. 

APPEAL FROM: District Court of tile Fourth Judicial District, 

In and for the County of Missoula, Cause No. DV-00-933 

Honorable Do~iglas G. t-larkin, Judge Presiding 

Far i2ppellant 

W~lltarn F t-fooks. Attorney at Lam. tlclena, Montana 

For Respondent: 

I-lonorablc Mike McCrath, Attor~iey General; Carol I. Sch~nidi. 

Assistarlt Attor~iey (;cneral, Helena, Montana 

Fred Van Valltenburg, County httoriley, RZissoula, Monta~ia 

Decided: ikbruarj 20; 200.3 
Just~cc iirrl Ricc delivered the Opinion of the Coon. 

$1 Ronald J. Xoot (Roo:) appads :?om ihc order entered by ihc Foirrih .iudici:ii District 

Court, Missoilla Couniy, dismissing his pirtition for postconviction relict 'We afinn. 

"I /Although Root raises several issues on appeal, we find the follo:\.ir~g issric to he 

iiispositive: Did the District Court err in dismissing the petition or1 the ground that it was 

time barred' 

BACKGROUND 

13 The facts relating to the tin~eliness of Root's second petition are undisputed. On 

March 12, 1097. Root was found guilty of the char~e of sexual intercourse x\-ithout consent. 

a felony, following a jriry trial. He appealed, and this Cou~l affirmed his conviction in an 

opinion issued on August 30, 1999. See Sftrte 1'. Roof, 1999 MT 203,296 ktont. I : 987 P.2d 

1140. 

54 On January 18: 2000, Root, then proceedingpro se, filed apetition for postconviction 

relief, asserting several ineffective assistance of counsel claims. Finding that the petition 

conclusi\~ely demonstrated that Root was not entitled to relief, the District Court distiiissed 

the petition on March 3, 2000: without ordering a response fiorn the State. Root appealed 

that dismissal to this Court. 

55 On %lay 23.2000, we issued an interlocutory ortier appointing counsel on appeal fix 

[toot, noting that Root was incarcerated in a correctional facility that did not have an 

adcqiiatc legal library. On .June 21, 2000, Root, through his appointed counsel, 111oved to 

voluntarily dismiss his appeal, which was granted by this Court. 
-. 

eij6 Koor, by his appointed counsel, t'hcr~ filec? a second petition fur postconviction relief 

itr rhc District court on Dcccmber 4. 2000, again claiming that he had rcceil~ed i?effi:-i'i:ciii-c 

assistance of counsel during his trial. After ordering tllc Slate to respond. the ilistrict Coiir: 

dismissed Root's second petition, concluding, on the basis of 55 46-21- 102 and -105, i\'lC:.A9 

that thc petition vias time barred. mas barred under proxxsrons gcnerning ~ccortd oi 

subseqcitt petitions; and was procedurally barred because lioot could have raised his c!aims 

iii earlier proceedings. Because cve find the timeliness issue to be dispositiue, cvc do not 

 idd dress the other grounds upon which the District Court dismissed Root's petition. 

STANDARD OF RE\ IEN 

77 This Court re~~iems a district court's denial oTa pctilion for postcoi~vietlon rclicfto 

dctern~inc whether the district court's findings of fact are clearly erroneous and whether its 

conclusions of !an are correct. Stutc~ v fVrlgitt, 2003 MT 282,307 Vont. 340.42 P 3d 753. 

1 (ere, the 1)istnct Court's findings of fact are not challenged. and our re\ le\r 1s confined to 

the correctness of the 1)istrict Court's conclusions of I:LU 

'18 Section 46-21-102. MC 2, states as follo~s. 

(1 ) Except as provided in subsection (2); a petition forthc rclicfrcfcrrcd 

to in 46-21-101 may he filed at any time within 1 year of the date that the 

conviction becornes final. :2 conviction becomes final for purposes ofthis 

chapter when: 

(aj the time for appeal to the MonVana supreme court cxpires; 

(b) if an appeal is taken to the bionta~~lua supreme court, the tinie for 

petitioning the Gnited States supreme court for review expires; or 

(cj if review is sought in the United States supreme court. on the date 

titat that court issues its final order in the case. 
(2) A claim that al'?egcs the cxistencc of newly discovered e\~idcricc 

that, ifproved and viewed in light of the evidence as a whole would establish 

that the petitioner did not engage in the criminal conduct for wllich tire 

petitioner was convicted. may bc raised in a petition filcd within I year of the 

(fate on which the conviction beeo~i~es final or the date on which the petitioner 

discovers, orrea~ttnably should have discovered3 the existence ofthc cvidencc. 

-~vhichever is later. 

"j The Distr~ct Court noted that pursuant to L'ntted States Supreme Court Rules, Root 

had 00 dajs from the entry of our decis~on in hts appeal. or until Nokember 30, 1999, to 

petttton for wnt of certlorart rn the Cn~ted States Supreme f ourt. See Rule 1 1, Rules of the 

Supreme Court of tlre llnited States; Stnte v. Ahc, 2001 M7' 260. 7, 307 Mont. 233. 'j 7.37 

P.3d 77, 'i 7. Then, in accordance with 4 46-21-1 02(l j(b), MC.4, which deems convictioiis 

to be final ivhen tile tirnc expires for petitioning the United Siatitcs Supreme Court, and 

pursuant to the one-yea, limitacton pcrlod problded In 4 46-21-l02(1), MCA. rhc Dtstrrct 

Co~irt found that Root had until Xovember 30, 2000, to file his petition for postconviction 

relref. The Dtstrlct Court concl~ided therefrom that Root's first petttton, filed on January 18, 

2000, was timely, but that his second petition, filed December 4. 2000, was untimcly, and 

therefore barred under the statute.' 

10 In Root's view. the District Court erred in applying the one-year limitatioii period to 

his second postconviction petition because the onc-year period applies only to an initial or 

original pctition. His brief statcs: 

, . fhc District Court erred slightly- in its calculation of the 90-day period. Sineiy days ilom 

i\ugust 30, 19W'i; is not Xo\reniber 30. 1999; but rather Xove17iher 28. 1999. Ihe one-ycar pcriod for 

tiling a pctition for postconviction relief thus ran until November 28> 2000. Ilo\vever. this error ai'fcctc 

neithcr tlrc Diitrici C'our:'~ decision 110s thc outcome on appeal 
-. I hc one-year liniitations pcriod docs not apply to an~enbecl petitions or second 

or successivc petitions for relief. Phese petitions are not mentioned in $46-2 i - 

102, XZC-A; and are addressed in 446-21-105, MCA. This latter statute 

contains express provisions for the setting of a deadlinc for f%ng an amended 

petition. In short, nothing in the provisions of these statutes suggests, let alone 

re~~ircs, that the one-year limitations period applies to anything other rltan the 

initial petition for relief. This does not mean that a petitioner can file petitions 

utl nrrusenm. A second or successive petition is subject to the waiver and 

"good cause" exception doctrines addressed in $46-21-105. %'LCA4. 

711 1 The pro.r~siorl relied upon by Root, 3 46-21-105(1), AICA, proc~des: 

(I )(a) All grounds for relief claimed by a petitioner under 46-2 1 - 10 1 

must be raised in the original or amended original petition. The original 

petition may be amended only once. At the request of the state or on its own 

n~otion, the court shall set a deadline for the filing of an amended original 

petition. If a hearing will be held, the deadline must be reasonably in il , d vance 

of the hearing but may not be less than 30 days prior to the date of the hearing. 

(b) The court shall dismiss a second or subsequent pctition by a person 

xvl~o has filed an original petition unless the second or subsequent petition 

raises grounds for relief that could not reasonably have been raised in the 

original or an amended original petition. 

711 2 In his argument quoted above, Root incorrectly ltnnps amendedpetitions together with 

second or subsequent petitions. "Amended" petitions and "subsequent" pctitlons are 

different in nature and are goberned by drfferent statutoryprovisrons. Amended pet~tions are 

governed bq 6 46-21-1 05(l)(a), MC'A, a h~ch contemplates that a petztlon nlay be amended 

d~tring the course of an ongoing proceeding that was timely initiated. The provision allows 

a district court to set a deadline for filing an amendcdpetition. Ihese petitions are referenced 

in $ 40-2 I - 105(l)(b): MCA, as "arnended original" petitions 

'113 1-Iowcver, Root did not file an amended original petition? anci thns, the tin~eliness oi' 

an amended petrt~on 1s not before the Co~trt herc tl'e tlictefore do not address whether the 
1 Root filed a second pctition for postconviction re!iei- which is go\-csl~cil by $36-21- 

151. %I. I'hc provision rn:~nd:ites that a distrci court "shall dismiss" a scconci or 

subscqrrei~t petition "ui~lcss the second or subscquelit petition raises grounds for rclicf thiit 

could not reasonably have been raised in the original or an at-nended original peiition," Root 

offers tlic Com~i?ission Comrnents to 3 46-21-105. MCA. in explanation ofthis provision's 

application: 

'The object of this sectiol~ is to eli~iiillate the iit~neccssar-yburden piaceci 

upon tlic courts by repetitious or specious petitions. it is highly desirable illat 

a petitioner be rccluired to assert all his claims in one pctition. Gftless good 

cause is show11 why he did not assert all his claims in the original petition: his - 3 failure to so assert tlie111 constitutes it M-aivcr. 1 he ~vay is lcft open, however, 

for a subseyuent petitioli if the court finds grounds for relief tl~at could not 

reasonably have been raised in the original pctition. 

qj15 Root argues that the plain meaning of $5 46-21-!02(1) atld -105(2), kICA, restricts 

application of the one-year limitation pcriod to initial or original petitions. L-re reasons tint 

second or subsequent pctltio~ls are ltm~ted only by tile need to demonstrate that the clams 

therein "could not reasonably ha\;e been raised in rlze original pctition," undcr the standards 

I Wc disagree. '4 reading of tile statutes gctverrling posrco~iviction proceedings in their 

cntircty convinces us that $16-2 1-1 02(1), LICA, applies a onc-year pcriod of 1i:nitation on 

the initiation CIS all postcon\-iction proceedings. includir~g tl~osc iilitiatcd by second or. 

subsccjuent petitions. Section 40-2 1-1 01, MCSI\, sets hrth rhc relief a\-ailable in 
postcoitviction procecdings, which necessarilg~ inc'ludcs scco~ld or suhscyucnt proceedings. 

Section 4-2 I-!CB2, MVA, states that "'a petirioil hr thc relief rekrred to in 4-21 -1 01 nlaqbe filed a? any time hithin 1 year" of tlie conviction becoming final. Section 46-21-103, 

L:l,IC:A, provides that "[t]he proceeding for relief undcr 46-21-101 must be comrncnced by 

filing a verified petition with the clerk of the appropriate conrt." Section 46-21 -104; MCA, 

requires that "[tlhe petition for postconviction relief must: . . . (b) identify any previous 

proceedings that the petitioner may have taken to sceurc relief front the conviction." Thus, 

a proceeding seeking relief available under 3 40-21-101, MC:.%, nmust meet all the 

requirements set forth in these pro~iisions, including, for purposes here, the filing. in the 

appropriate court, of a verified petition which identifies all previous posteon\-iction 

proceedings, lvithin one year of the conviction becoining final. The statutes do not exempt 

second or subsequent petitions from any of these requirements. Rather, 3 46-21-105, MCA, 

imposes an additional requirement: that a second or subsequent petition, in order to avoid 

ciismissal, must also dclnonstrate good cause why its claims were not asserted in the original 

petition. 

17 Root's proffered interpretat~on 1% ould lead to absurd results. Iftile one-year l~mitat~on 

provision did not apply to subsequent petitions, an original petition filed aftcr expiration of 

the one-?car limitation period ~vould be time baned, but would nonetheless open the door to 

the filing of a second petition which tvo~~ld be linliteci only by thc need to demonstrate whj: 

thc claims therein were Itor raised in thc original, time-Darreci petition. This result, though 
possible under Root's intcrprciatiol~. is -!car-ly not coriten~platcd by ihr plain \vorcIirrg ofthe 

sraintes. 

9; 18 'l'iie postconviction statutes do provide a narrow exception to the one-year limitatioil 

period, Section 36-21-102(2), MCA, allows a petition which alleges newly discovered 

evidencc to be tiled one year after the eviderice was discovered; or "reasonably should have 

[been] discovered." This indicates that the Legislature contemplated the filing of petitions 

beyond the one-year period following conviction and provided a narrow exception therefor. 

tlere, Root has not alleged that the time for filing is extended eitlicr by this statutory "newly 

discovered evidence" prob~ision, nor the "miscarriage of justice" exception premised upon 

convietioil of one w11o is actually innocent. See Slirte v. IZe(icr.c~i,~j. 1'199 MT M5, 33, 294 

Mont. 252, '! 33,980 P.2d 022.1j 33. Tlius. the statuloryprovisions as interpreted herein arc 

eontroll~ng. 

10 Thc f>lstrtct Court's d~sm~ssal of the petlt~on is iiffirined 

LVe concur: