04/03/2018
DA 16-0626
Case Number: DA 16-0626
IN THE SUPREME COURT OF THE STATE OF MONTANA
2018 MT 74N
JEREMY MacGREGOR,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis And Clark, Cause No. BDV-2014-951
Honorable DeeAnn Cooney, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeremy Steven MacGregor, Self-Represented,
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
Assistant Attorney General, Helena, Montana
Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana
Submitted on Briefs: January 31, 2018
Decided: April 3, 2018
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion, shall not be cited, and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Jeremy Steven MacGregor (“MacGregor”) appeals the Order of the First Judicial
District Court, Lewis and Clark County, dismissing his petition for postconviction relief
(“PCR”). We affirm.
¶3 Following an incident on April 15, 2010, the State charged MacGregor with two
counts of attempted deliberate homicide for shooting his then-wife and live-in nanny.
MacGregor was initially represented by a public defender, but insisted on representing
himself. The District Court allowed him to proceed with a public defender as standby
counsel. On February 28, 2011, a jury convicted MacGregor of two counts of attempted
deliberate homicide in violation of § 45-5-102, MCA. The District Court sentenced
MacGregor to 100 years for each count, with the sentences to run concurrently. The
District Court also restricted MacGregor’s parole eligibility for fifty years.
¶4 MacGregor appealed, arguing ineffective assistance of counsel (“IAC”). The Office
of Appellate Defender represented MacGregor on his direct appeal. Due to his
dissatisfaction with appointed appellate counsel, however, MacGregor fired his appellate
counsel and proceeded pro se. MacGregor’s pro se appeal was rejected by this Court due
to his failure to comply with the Montana Rules of Appellate Procedure. MacGregor
requested new counsel, and this Court re-appointed appellate counsel from the Office of
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Appellate Defender. On October 15, 2013, this Court affirmed MacGregor’s convictions.
State v. MacGregor, 2013 MT 297, 372 Mont. 142, 311 P.3d 428.
¶5 MacGregor petitioned for rehearing, arguing that this Court overlooked certain
material facts. The petition was denied. On December 5, 2014, MacGregor filed a timely
PCR petition pursuant to § 46-21-102(1), MCA. The District Court evaluated the record
and PCR petition and did not require the State to respond. On October 6, 2016, the District
Court issued an Order denying MacGregor’s petition, holding:
Upon review of Petitioner’s verified petition for postconviction relief and
brief in support, this Court finds that MacGregor’s brief fails to prove by a
preponderance of the evidence that he is entitled to relief. In challenging the
effectiveness of his [appellate counsel], MacGregor relies largely on
conclusory allegations and fails to establish the two-prongs of Strickland.
MacGregor appeals the denial.
¶6 We review a district court’s denial of a petition for postconviction relief to
determine whether the district court’s findings of fact are clearly erroneous and whether its
conclusions of law are correct. Haagenson v. State, 2014 MT 223, ¶ 8, 376 Mont. 239,
332 P.3d 268; State v. Jenkins, 2001 MT 79, ¶ 9, 305 Mont. 95, 23 P.3d 201. We review
discretionary rulings in PCR proceedings, including rulings relating to whether to hold an
evidentiary hearing, for an abuse of discretion. Hamilton v. State, 2010 MT 25, ¶ 7, 355
Mont. 133, 226 P.3d 588. We review claims of ineffective assistance of counsel de novo.
State v. Cobell, 2004 MT 46, ¶ 8, 320 Mont. 122, 86 P.3d 20.
¶7 A PCR petition may not be based upon grounds for relief that were or could
reasonably have been raised on direct appeal. Section 46-21-105(2), MCA; Rukes v. State,
2013 MT 56, ¶ 8, 369 Mont. 215, 297 P.3d 1195. The petition must identify all facts that
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support the claims for relief. Section 46-21-104(1), MCA; Kelly v. State, 2013 MT 21, ¶ 9,
368 Mont. 309, 300 P.3d 120. The petitioner has the burden to show by a preponderance
of the evidence that the facts justify relief. Griffin v. State, 2003 MT 267, ¶ 10, 317 Mont.
457, 77 P.3d 545; Ellenburg v. Chase, 2004 MT 66, ¶ 12, 320 Mont. 315, 87 P.3d 473
(citing § 46-21-104, MCA); Cobell, ¶ 14 (stating that a petitioner seeking to reverse a
district court’s denial of a PCR petition, “bears a heavy burden. . . .”). If a district court
determines that “the petition and the files and records of the case conclusively show that
the petitioner is not entitled to relief,” the district court may dismiss the proceedings
without requiring a response by the State or without holding an evidentiary hearing.
Sartain v. State, 2012 MT 164, ¶¶ 42–44, 365 Mont. 483, 285 P.3d 407 (quoting
§ 46-21-202, MCA).
¶8 In assessing claims of ineffective assistance of counsel, we apply the two-pronged
test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Whitlow
v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. The first prong of the
Strickland test requires the defendant to show that his counsel’s performance was deficient.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To demonstrate that counsel’s performance
was deficient, the defendant must prove that counsel’s performance fell below an objective
standard of reasonableness. Whitlow, ¶ 10; Bishop v. State, 254 Mont. 100, 103, 835 P.2d
732, 734 (1992). The second prong of the Strickland test requires the defendant to prove
that his counsel’s deficient performance prejudiced the defense. Whitlow, ¶ 10; Strickland,
466 U.S. at 687, 104 S. Ct. at 2064. To show prejudice, the defendant alleging ineffective
assistance of counsel must demonstrate a reasonable probability that, but for counsel’s
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errors, he would not have pled guilty and would have insisted on going to trial. State v.
Thee, 2001 MT 294, ¶ 9, 307 Mont. 450, 37 P.3d 741, overruled on other grounds by
Whitlow, ¶¶ 13, 18. The Strickland test applies to claims of IAC against both trial and
appellate counsel. Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60, 973 P.2d 233.
¶9 Appellate counsel need not raise every nonfrivolous or colorable issue requested by
his client. Jones v. Barnes, 463 U.S. 745, 750–54, 103 S. Ct. 3308, 3312–14 (1983); Weller
v. State, 2009 Mont. Dist. LEXIS 414, ¶ 19. Effective appellate counsel must apply
professional judgment and raise “only those arguments most likely to succeed.” Davila v.
Davis, __U.S. __, 137 S. Ct. 2058, 2067 (2017); see also Smith v. Murray, 477 U.S. 527,
536, 106 S. Ct. 2661, 2667 (1986). “Declining to raise a claim on appeal . . . is not deficient
performance unless that claim was plainly stronger than those actually presented to the
appellate court.” Davila, __U.S. at __, 137 S. Ct. at 2067.
¶10 MacGregor argues that appellate counsel declined to file a motion for an over-length
brief as MacGregor requested, and instead met the brief requirements by omitting certain
arguments that MacGregor wanted to include. MacGregor argues these omissions resulted
in meritorious issues not being preserved on appeal, and the merits of these arguments are
evidenced by appellate counsel not filing an Anders brief.1 MacGregor makes the
following specific claims of IAC based on the arguments appellate counsel did not raise on
appeal: (1) MacGregor’s right to a fair trial before an impartial tribunal was violated; (2)
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When appellate counsel is unable to find any non-frivolous issues to raise on appeal, she
will file a brief advising the Court of her conclusion pursuant to Anders v. California, 386
U.S. 738, 87 S. Ct. 1396 (1967).
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MacGregor was entitled to be charged by preliminary hearing or grand jury indictment
instead of information; (3) collusion between the trial judge, law enforcement, and public
defender; (4) MacGregor’s right to counsel was violated when the District Court failed to
obtain an unequivocal waiver before designating his standby counsel as co-counsel;
(5) co-counsel, the District Court, and the State violated MacGregor’s right to compulsory
process by failing to secure the presence of a potential witness at trial; (6) the prosecutors
should have recused themselves after they acted as “witnesses” in his case by signing the
motion for leave to file information; and (7) the restitution order was illegal because the
presentence investigation (“PSI”) report was deficient.
¶11 The District Court analyzed each of MacGregor’s IAC claims and found them all to
be without merit. The District Court held:
[Appellate counsel] [was] well within the bounds of professional judgment
to decline certain requests from his client. . . . Given the strong presumption
that [appellate counsel’s] conduct falls within the wide range of reasonable
professional assistance, MacGregor’s argument fails to overcome the
presumption that, under the circumstances, the challenged action (or
inaction) could be considered sound appellate strategy.
The State also points out that to the extent the proposed appellate claims were not frivolous
and wholly without merit, MacGregor has not shown they are plainly stronger than the
claims of error that appellate counsel actually raised on appeal. We agree.
¶12 The claims appellate counsel declined to raise were not plainly stronger than those
actually presented to the appellate court. See Davila, __ U.S. at __, 137 S. Ct. at 2067.
Appellate counsel applied professional judgment and reasonably decided not to raise the
claims of error that MacGregor asserts should have been raised on direct appeal.
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MacGregor did not “overcome the presumption that his counsel acted in a reasonable,
professional manner.” See Sellner v. State, 2004 MT 205, ¶ 48, 322 Mont. 310, 95 P.3d
708. Because MacGregor fails to establish appellate counsel’s performance was deficient,
we decline to analyze whether MacGregor was prejudiced by appellate counsel’s decisions.
See Whitlow, ¶¶ 10–11 (holding “if an insufficient showing is made regarding one prong
of the test, there is no need to address the other prong.”); Strickland, 466 U.S. at 687, 104
S. Ct. at 2064. MacGregor has not met his burden to show that the District Court erred
when it denied and dismissed his claims of IAC regarding appellate counsel. See Cobell,
¶ 14. Additionally, MacGregor also has not demonstrated that “resolution of his claims
necessitated an evidentiary hearing.” See Sartain, ¶¶ 42–44.
¶13 The District Court did not err when it determined that MacGregor’s brief failed to
prove by a preponderance of the evidence that he is entitled to relief. MacGregor’s reliance
on conclusory allegations fails to establish the two-prongs of Strickland. We therefore
affirm the District Court’s dismissal of MacGregor’s PCR petition.
¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review. The District Court’s Conclusions of Law were correct, its
Findings of Fact were not clearly erroneous, and its ruling was not an abuse of discretion.
We affirm.
/S/ JAMES JEREMIAH SHEA
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We Concur:
/S/ JIM RICE
/S/ DIRK M. SANDEFUR
/S/ LAURIE McKINNON
/S/ BETH BAKER
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