03/09/2021
DA 20-0129
Case Number: DA 20-0129
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 64N
SHANE PHILLIP NICKERSON,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV-19-1271
Honorable Heidi J. Ulbricht, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Shane Phillip Nickerson, Self-Represented, Deer Lodge, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Travis R. Ahner, Flathead County Attorney, Caitlin Overland, Deputy
County Attorney, Kalispell, Montana
Submitted on Briefs: December 2, 2020
Decided: March 9, 2021
Filed:
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__________________________________________
Clerk
Chief Justice Mike McGrath 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 and 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 On October 4, 2009, Shane Phillip Nickerson was found guilty by a jury of sexual
assault, aggravated assault, criminal endangerment, and assault on a minor.
¶3 Nickerson was sentenced to Montana State Prison for a term of 50 years for sexual
assault. He was also sentenced to the following concurrent terms: 20 years for aggravated
assault, 10 years for criminal endangerment, and five years for assault on a minor.
Nickerson appealed his conviction alleging that the State failed to prove an essential
element of the assault on a minor charge. Nickerson also asserted a claim of ineffective
assistance of counsel (IAC). State v. Nickerson, DA 10-0259, 2011 MT 85N, 2011 Mont.
LEXIS 116.
¶4 On April 20, 2011, we remanded the case to the District Court with instructions to
strike Nickerson’s conviction of assault on a minor and the associated sentence. We held
that Nickerson’s claim of IAC was without merit.
¶5 On November 18, 2019, Nickerson filed a petition for postconviction relief (PCR)
arguing malicious prosecution, that his trial attorney was ineffective, and that exculpatory
evidence was not properly examined. On December 30, 2019, the District Court dismissed
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Nickerson’s petition. The court held that Nickerson’s petition for PCR was time barred,
and that the petition did not raise grounds for relief that could not have been raised in
Nickerson’s other filings, including his direct appeal. On February 14, 2020, Nickerson
filed a petition for a writ of habeas corpus with this Court. Nickerson’s petition was denied
on March 10, 2020. Nickerson now appeals the District Court’s denial of his petition for
PCR.
¶6 Nickerson argues on appeal that although his petition for PCR was time barred, his
request for further DNA testing constituted new evidence. Nickerson argues that his trial
was fundamentally unfair and requests that he be granted a new trial.
¶7 We review a district court’s denial of a petition for PCR to determine whether its
findings are clearly erroneous and whether it correctly interpreted the law. Ellenburg v.
Chase, 2004 MT 66, ¶ 10, 320 Mont. 315, 87 P.3d 473.
¶8 Petitions for PCR must be based on more than mere conclusory allegations.
Ellenburg, ¶ 16. The petition must “identify all facts supporting grounds for relief set forth
in the petition and have attached affidavits, records, or other evidence establishing the
existence of those facts.” Section 46-21-104(1)(c), MCA. Under § 46-21-105(2), MCA,
grounds for relief that were or could have reasonably been raised on direct appeal may not
be raised in PCR proceedings. Claims for PCR “may be filed at any time within 1 year of
the date that the conviction becomes final.” Section 46-21-102(1), MCA. If there is an
allegation of newly discovered evidence,
“A claim that alleges the existence of newly discovered evidence that, if
proved and viewed in light of the evidence as a whole would establish that
the petitioner did not engage in the criminal conduct for which the petitioner
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was convicted, may be raised in a petition filed within 1 year of the date on
which the conviction becomes final or the date on which the petitioner
discovers, or reasonably should have discovered, the existence of the
evidence, whichever is later.”
Section 46-21-102(2), MCA (emphasis added).
¶9 Nickerson’s petition for PCR was, and is, time barred because he had until July 18,
2012, to file his petition. Instead, he filed his petition for PCR over eight years after his
conviction became final. In his memo supporting the petition for PCR, Nickerson alleged
that he had newly discovered evidence proving his innocence. He did not provide the court
with any new evidence, but instead argued that the State failed to produce the evidence.
Moreover, the argument regarding evidence that Nickerson believes the State was required
to provide could have reasonably been made in his direct appeal. As Nickerson did not
provide any newly discovered evidence, his petition for PCR remains time barred by
§ 46-21-102, MCA.
¶10 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.
¶11 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
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