No. 01-315 IX Till3 SL7PRELfI: COliRT 01: THE ST,-ZTEOF MON-riINA 2003 

## "~rr 28

L. RON;\L D J ROOT, Deknda~it and i\ppcllant.

APPEAL FROM: District Court oftile 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-lonorablcMike McCrath, Attor~iey General; Carol I.Sch~nidi. Assistarlt Attor~iey (;cneral, Helena, Montana Fred Van Valltenburg, Countyhttoriley, RZissoula, Monta~ia

Decided: ikbruarj 20;200.3Just~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~gissric 

### 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 ofthe char~e of sexual intercourse x\-ithoutconsent. a felony, following ajriry 

### 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 :

### 987P.2d 1140. 54 On January 18:2000, Root, then proceedingpro

### se, filedapetition forpostconviction 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 %lay23.2000, 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, 111ovedto 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 ofcounsel during his trial. After ordering tllc Slateto respond. the ilistrict Coiir: dismissed Root's second petition, concluding, on the basis of

## 5546-21- 

### 102 and -105, i\'lC:.A9 that thc petition vias time barred. mas barred under proxxsrons 

### gcnerning ~ccortd oi subseqcittpetitions;and wasprocedurally barred because liootcould 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 asprovided in subsection 

### (2);apetition forthcrclicfrcfcrrcd 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: (ajthe 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 (cjif 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 

### ofthe (fateon which the conviction beeo~i~es final orthe date on which the petitioner discovers,orrea~ttnably shouldhavediscovered3 the existenceofthccvidencc. -~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 ofcertlorart 

### rn the Cn~ted States Supreme fourt. 

### See Rule 

### 1 1, Rules ofthe SupremeCourt oftlre 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 46-21-102(lj(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. TheDtstrlct Court concl~ided 

### therefrom that Root's firstpetttton, 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. Sineiydays ilom i\ugust 30, 19W'i; is not Xo\reniber 30. 1999; but rather Xove17iher28. 1999. Iheone-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 110sthc outcome on appeal

## -. I hc one-year liniitationspcriod docsnot

### apply to an~enbecl petitions 

### or second orsuccessivcpetitions forrelief. Phesepetitions arenot 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 ofa deadlinc for 

### f%ng an amended petition. 

### In short, nothing in the provisions ofthese statutes suggests, letalone 

### re~~ircs, that the

### one-yearlimitationsperiod applies to anything otherrltan the initial petition for relief. This doesnot mean that 

### a petitioner can filepetitions 

### 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 il vance petition. If a hearing will be held, the deadline must be reasonably in ,d ofthe hearing but may notbe less than 30 daysprior to the date ofthe hearing. (b)Thecourt shall dismiss a second 

### orsubsequent pctition by aperson 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 ltnnpsamendedpetitions together with second or subsequent 

### petitions. "Amended" petitions and "subsequent" pctitlons are different in nature and aregobernedby drfferent statutoryprovisrons. Amendedpet~tions are governed bq 

### 646-21-105(l)(a), 

### MC'A, ah~ch contemplates that a petztlon nlay 

### be amended d~tring the course of an ongoing proceeding that was timely initiated. The provision allows a districtcourtto set a deadline forfilingan amendcdpetition. Ihesepetitions arereferenced 

### 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 donot address whether the

### 1 Root filed 

### a second pctition 

### for postconviction re!iei- which is go\-csl~cil by $36-21- 

### 151. 

### %I. I'hcprovision 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-nendedoriginal peiition," Root offers tlic Com~i?ission Comrnents to 

## 3 46-21-105. 

### MCA. in explanation ofthisprovision's application: 'The object ofthis sectiol~ is to eli~iiillate the iit~neccssar-yburden piaceci upon tlic courts by 

### repetitious or specious petitions. it ishighly 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. 1he ~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 ofthe one-year limitation pcriod to initial or original petitions. L-rereasons 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 inrlze 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 1-102(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 1-101, 

### MCSI\, sets hrth rhc relief a\-ailable inpostcoitviction procecdings, which necessarilg~ inc'ludcsscco~ld or suhscyucnt proceedings. Section 4-2 

### I-!CB2, MVA, states that "'a petirioil hr thc relief rekrred to 

### in 4-21-101 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 ofthe 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 ofthe conviction becoining final. The statutes do not exempt second or subsequent petitions from anyofthese 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, thoughpossible under Root's intcrprciatiol~. is -!car-ly not coriten~platcd by 

### ihrplain \vorcIirrg ofthe sraintes. 

### 9;18 'l'iie postconviction statutes doprovide 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 afterthe eviderice was discovered; or "reasonably should have [been] discovered." This indicates that the Legislature contemplated the filing ofpetitions beyond the one-year period following conviction and provided a narrow exception therefor. tlere, Roothas not alleged that the time for filing is extended eitlicr by this statutory "newly discovered evidence" prob~ision, nor the "miscarriage ofjustice" 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>lstrtctCourt's d~sm~ssal of the petlt~on is iiffirined

LVe concur: