DA 09-0157

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 25

DARRYL HAMILTON,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Appellee.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. DV 08-1037

Honorable Dirk M. Sandefur, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad M. Wright, Hooks & Wright, P.C., Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant

Attorney General; Helena, Montana

John Parker, Cascade County Attorney, Great Falls, Montana

Submitted on Briefs: January 13, 2010

Decided: February 9, 2010

Filed:

__________________________________________

Clerk

February 9 2010
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Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Darryl Hamilton (Hamilton) appeals from an order of the Eighth Judicial District

Court, Cascade County, denying Hamilton’s petition for post-conviction relief. We affirm.

¶2 We review the following issue on appeal:

¶3 Did the District Court abuse its discretion when it denied Hamilton’s petition for 

post-conviction relief without granting him an evidentiary hearing?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 The State charged Hamilton on June 23, 2004, with eight counts of felony incest in

violation of § 45-5-507, MCA. A jury convicted Hamilton of all eight countsin April 2005.

Joseph Gilligan (Gilligan) represented Hamilton for the majority ofthe pre-trial and all trial

proceedings. Gilligan withdrew as Hamilton’s attorney of record on August 16, 2005.

¶5 ThisCourt affirmed Hamilton’s conviction and sentence. State v. Hamilton,2007MT

223, 339 Mont. 92, 167 P.3d 906. We held that Hamilton’s claims of ineffective assistance

of counsel were best suited for post-conviction proceedings. See id. at ¶¶ 23, 28, 31.

¶6 Hamilton timely filed a petition for post-conviction relief with the District Court on

August 12, 2008. Hamilton claimed that Gilligan had rendered ineffective assistance of

counsel, and requested that the District Court hold an evidentiary hearing. On February 19,

2009, the District Court denied Hamilton’s petition and his request for an evidentiary

hearing. The District Court dismissed Hamilton’s claims ofineffective assistance ofcounsel

pursuant to §§ 46-21-104(1)(c) and 46-21-104(2), MCA, for failure to make a prima facie

showing of entitlement to relief, and pursuant to § 46-21-201(1), MCA, for failure to state a
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claim for relief. Hamilton appeals.

STANDARD OF REVIEW

¶7 We review a district court’s denial of a petition for post-conviction reliefto determine

whether the court’sfindings of fact are clearly erroneous and whether its conclusions oflaw

are correct. Beach v. State, 2009 MT 398, ¶ 14, 353 Mont. 411, 220 P.3d 667 (citing Heath

v. State, 2009 MT 7, ¶ 13, 348 Mont. 361, 202 P.3d 118). We review discretionary rulingsin

post-conviction relief proceedings, including rulings related to whether to hold an

evidentiary hearing, for an abuse of discretion. Id.

DISCUSSION

¶8 Did the District Court abuse its discretion when it denied Hamilton’s petition for

post-conviction relief without granting him an evidentiary hearing?

¶9 Hamilton argues that the District Court abused its discretion when it denied his

petition for post-conviction relief without holding an evidentiary hearing. Hamilton

contends that the District Court accepted Gilligan’s representations “without any critical

review” of the record, and that the court should not have found that Gilligan’s affidavit was

more credible than Hamilton’s. Hamilton maintainsthat he deserved an evidentiary hearing

on his petition. The State argues that the District Court properly dismissed Hamilton’s

petition without holding an evidentiary hearing.

¶10 A petition requesting post-conviction relief must show, by a preponderance of the

evidence, that the facts justify the relief. Heath, ¶ 16. A petition for post-conviction relief

must “identify all facts supporting the grounds for relief set forth in the petition and have
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attached affidavits, records, or other evidence establishing the existence of those facts.”

Section 46-21-104(1)(c), MCA. “Mere conclusory allegations are insufficient to supportthe

petition.” Beach, ¶ 16. A court may dismiss a petition for post-conviction relief without

holding an evidentiary hearing ifthe petition failsto satisfy the procedural threshold setforth

in § 46-21-104(1)(c), MCA. Heath, ¶ 16 (citing Herman v. State, 2006 MT 7, ¶ 15, 330

Mont. 267, 127 P.3d 422).

¶11 In addition, a district court may dismiss a petition for post-conviction relief without

ordering a response ifthe petition, files, and records “conclusively show that the petitioneris

not entitled to relief.” Section 46-21-201(1)(a), MCA. Alternatively, the court may order a

response and, after reviewing the response, “dismissthe petition as a matter oflaw forfailure

to state a claimfor relief or it may proceed to determine the issue.” Section 46-21-201(1)(a),

MCA.

¶12 This Court applies the two-prong test from Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052 (1984), in assessing claims of inadequate assistance of counsel. See e.g.

Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, 10 P.3d 49. The defendant must show

that counsel’s performance was deficient and that the deficient performance prejudiced the

defense and deprived the defendant of a fair trial. See e.g. State v. Hendricks, 2003 MT 223,

¶ 6, 317 Mont. 177, 75 P.3d 1268; Dawson, ¶ 20. With respect to the first prong, the

question that “must be answered is whether counsel’s conduct fell below an objective

standard ofreasonableness measured under prevailing professional norms and in light ofthe

surrounding circumstances.” Whitlow v. State, 2008 MT 140, ¶ 20, 343 Mont. 90, 183 P.3d
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861. We stated in Whitlowthat “[t]he strong presumption that counsel’s conduct fallswithin

the wide range of reasonable professional assistance and was based on sound trial strategy

still remains.” Whitlow, ¶ 21; see also Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. This

presumption “likewise undergirds the long-standing appellate standard that a petitioner

seeking to reverse a district court’s denial of a petition for postconviction relief based on a

claim of ineffective assistance of counsel bears ‘a heavy burden.’ ” Whitlow, ¶ 21 (quoting

Brown v. State, 277 Mont. 430, 434, 922 P.2d 1146, 1148 (1996)). Under the second prong,

the defendant bears the burden of establishing prejudice by demonstrating that, but for

counsel’s errors, there is a reasonable probability that the result would have been different.

State v. Godfrey, 2009 MT 60, ¶ 14, 349 Mont. 335, 203 P.3d 834.

¶13 Hamilton alleges five separate instances of ineffective assistance by Gilligan. We

address each in turn. With respect to each claim, we consider whether Hamilton’s petition

failed to satisfy the procedural threshold set forth in § 46-21-104(1)(c), MCA (stating that

the petition for post-conviction relief must “identify all facts supporting the grounds for

relief set forth in the petition and have attached affidavits, records, or other evidence

establishing the existence of those facts”) and, thus, whether the District Court abused its

discretion by failing to hold an evidentiary hearing. We then consider whether the District

Court erred by dismissing the claim.

¶14 Hamilton claimsthat Gilligan failed to adequately investigate and use information that

Hamilton had provided to impeach the credibility ofthe victimand her mother. Specifically,

Hamilton maintained that the victim and her mother had made false stalking allegations
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against Hamilton, and that Gilligan had failed to investigate further. Hamilton also told

Gilligan that Hamilton’s ex-wife came from a family with a long history of sexual

misconduct. Lastly, Hamilton provided Gilligan with time cards “that would have impeached

the time line of abuse allegations made by the alleged victim,” but claimsthat Gilligan failed

use them to impeach the victim’s testimony.

¶15 Gilligan responded to Hamilton’s allegations by stating that he had contacted the

witnesses provided by Hamilton. He found that much of the information provided by

Hamilton was either irrelevant or inadmissible. With respect to Hamilton’s time cards,

Gilligan stated that he could not match the records with the alleged dates and times of the

offenses. Lastly, Gilligan explained that he had elected not to attack the credibility of the

victim and her mother because Hamilton had made “numerous admissions of having sexual

contact” with the victim, and these admissions were videotaped during a police interview.

¶16 Although Hamilton provided Gilligan with information that he subjectively believed

would impeach the credibility ofthe victimand her mother, Hamilton’s petition failsto show

that the information would have been admissible and effective. The petition fails to make a

prima facie showing of entitlement to relief pursuant to § 46-21-104(1)(c), MCA. Because

Hamilton’s petition with respect to this claim does not satisfy the procedural threshold set

forth in § 46-21-104(1)(c), MCA, the District Court did not abuse its discretion by

dismissing Hamilton’s claim without holding an evidentiary hearing.

¶17 Hamilton has also failed to show that his counsel’s performance was constitutionally

deficient or prejudicial in any way; thus, his petition fails to state a claim for relief on this
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ground. We conclude that the District Court did not err when it dismissed Hamilton’sclaims

that Gilligan had failed to investigate and impeach the credibility of the victim and her

mother.

¶18 Hamilton next argues that Gilligan’s failure to obtain a defense medical expert to

conduct a second physical examination on the victim for defense purposes constituted

ineffective assistance. Hamilton stated that he had told Gilligan that he had the fundsto pay

for the expert. Hamilton asked Gilligan to obtain another expert because the victim had had

previous examinations for abuse. According to Hamilton, Gilligan told him that the first

examination conducted by the State’s expert was “good enough.”

¶19 Hamilton’s petition with respect to this claim does not show that Gilligan’s decision

was deficient or prejudicial. Even if Gilligan did tell Hamilton that the State’s expert was

“good enough,” this does not show orsupport a reasonable inference that Gilligan’s decision

was deficient or prejudicial. Hamilton has not made a prima facie showing that he is entitled

to relief; thus, the District Court did not abuse its discretion in failing to hold an evidentiary

hearing with respect to this claim.

¶20 Gilligan explained in his affidavit that he had elected not to hire an expert because the

physician for the State testified that there was no sign of penetration or other indicators of

abuse. Gilligan stated that “I felt to have this evidence, or lack thereof, coming from a

prosecution witness would better serve our case than call our own expert who would have

the same opinion.”
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¶21 For his part, Hamilton has not set forth evidence that overcomes the strong

presumption that Gilligan’s conduct fell within the wide range of reasonable professional

assistance. See Whitlow, ¶ 21. We conclude that Hamilton has failed to state a claim for

relief, and that the District Court did not err in dismissing this claim pursuant to § 46-21-

201(1)(a), MCA.

¶22 Gilligan told the jury during his opening statement that Hamilton would testify.

Hamilton ultimately decided not to testify. Hamilton now claimsthat Gilligan’s statementto

the jury that Hamilton would testify constituted an unfulfilled promise, and that this

constituted ineffective assistance.

¶23 The District Court observed that Hamilton’s petition “does not state or show how or

why the decision not to call Hamilton was deficient or prejudicial in light of the State’s

evidence and the prospect of subjecting Hamilton to cross-examination.” We agree.

Hamilton has not made a prima facie showing that he is entitled to relief. The District Court

did not abuse its discretion in failing to hold an evidentiary hearing with respect to this

claim.

¶24 The record also reflectsthat Gilligan had prepared Hamilton to testify. He stated that

“we went over his proposed testimony including the questions he would be asked on crossexamination emphasizing questionsregarding the statements he made to the police and how

he could respond.” After the first day of trial, however, Hamilton told Gilligan that he did

not think he wanted to testify because “[i]t wouldn’t do any good.” Gilligan addressed
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Hamilton’s decision not to testify by drafting and using a jury instruction that “told the jury

they could not draw any inference or conclusion based upon his failure to testify.”

¶25 Hamilton hasfailed to show how Gilligan’s performance was deficient or prejudicial

in light of the damaging admissions Hamilton had made during the police interview and in

light of Hamilton’s decision not to testify. We conclude that, based on a careful reading of

the record, Hamilton has failed to state a claim for relief. The District Court did not err in

dismissing his claim.

¶26 Hamilton next maintains that Gilligan was ineffective because he allowed an

investigating officer to testify about interview techniques, the nature and purpose of the

techniques employed, and the officer’s observations of Hamilton’s demeanor during

interviews. Hamilton’s petition, however, does not explain why Gilligan’s failure to object

to the admission of the evidence was deficient or prejudicial. Hamilton’s petition fails to

satisfy the procedural threshold set forth in § 46-21-104(1)(c), MCA. The District Court did

not abuse its discretion by dismissing Hamilton’s claim without first holding an evidentiary

hearing.

¶27 Gilligan stated with respect to the officer’stestimony that the State “had laid a proper

foundation” for the testimony and that “[t]o object and dispute his ability to know signs of

deception would have called undue attention to the confession which was already damaging

enough.” The District Court found Gilligan’s explanation “patently reasonable,” and we

agree. Hamilton hasfailed to show that Gilligan’s performance was deficient. We conclude
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that the District Court did not err in dismissing Hamilton’s claim that Gilligan was

ineffective because he allowed an investigating officer to testify about interview techniques.

¶28 Hamilton lastly claims that Gilligan rendered ineffective assistance of counsel

because Gilligan had drug and alcohol problems during the time he was representing

Hamilton, that these problems adversely affected Gilligan’srelationship with Hamilton, and

that they adversely impacted Gilligan’s pre-trial and trial performance. Hamilton arguesthat

Gilligan’s drug and alcohol problems created a conflict of interest. Specifically, Hamilton

maintainsthat “[t]his can be seen during his closing argument when he told the jury thatthey

probably hate Hamilton.” Hamilton further contends that although “defense attorneys are

not prohibited from saying negative things about their clients,” Gilligan’s “approach in this

emotionally charged case cannot be considered a sound tactical decision.”

¶29 We observe that Hamilton’s petition does not show how Gilligan’s alleged drug and

alcohol problems actually caused any deficient performance. The District Court stated that

“[t]hese facts do nothing more than establish a basis for speculative, derogatory innuendo.”

We agree. Hamilton’s petition also failed to explain how Gilligan’s statement during his

closing argument was constitutionally deficient or prejudicial. We conclude that Hamilton’s

petition fails to satisfy the procedural threshold set forth in § 46-21-104(1)(c), MCA. The

District Court did not abuse its discretion by dismissing Hamilton’s claim without first

holding an evidentiary hearing.

¶30 Gilligan categorically stated that “[a]t no time—whether in the meetings, while

investigating the case, in court proceedings or any other time pertinent to this case—wasthe
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undersigned imbibing alcohol or had been drinking alcohol prior to said events.” Gilligan’s

affidavit also explained that his statements during closing argument stemmed from the fact

that “[t]his was an obviously emotional case based upon the subject matter involved which

was eight counts ofincest over a period of eight years.” He stated that hisstatements during

closing argument “were aimed at having the jury remove that emotion from their

deliberations and, instead, concentrate on the testimony presented to dispute that thisactivity

took place over that length of time and in the specific years alleged.”

¶31 We conclude that Hamilton has failed to overcome the strong presumption that

Gilligan’s actions constituted trial strategy and were within the broad scope of reasonable

professional conduct. See Hendricks, ¶ 7. With respect to Gilligan’s alleged drug and

alcohol problems, the District Court concluded that “[a]t the bottomline, irrespective ofthe

self-serving derogatory innuendo, [Hamilton] fails to show that counsel’s strategy and

performance were the result of anything other than reasonable judgment calls, well-within

the constitutionally permissible range of professional conduct expected of defense counselin

Montana.” We agree. The District Court did not err in dismissing Hamilton’s claim that

Gilligan generally rendered deficient performance due to alleged drug and alcohol problems

and that such alleged problems caused Gilligan to render deficient performance during his

closing argument.

CONCLUSION

¶32 We conclude that Hamilton’s petition for post-conviction relief fails to satisfy the

procedural threshold set forth in § 46-21-104(1)(c), MCA. The District Court did not abuse
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its discretion when it dismissed Hamilton’s petition without first conducting an evidentiary

hearing. We also conclude that Hamilton’s claims of ineffective assistance of counsel all

failed to state claims for relief. The District Court did not err by dismissing Hamilton’s

petition for post-conviction relief.

¶33 Affirmed.

/S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON

/S/ BRIAN MORRIS