08/17/2021
DA 21-0027
Case Number: DA 21-0027
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 210N
KINGSLEY U. ARIEGWE,
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. BDC-03-052
Honorable Elizabeth A. Best, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kingsley U. Ariegwe, Self-Represented, Shelby, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Josh A. Racki, Cascade County Attorney, Susan Weber, Chief Deputy
County Attorney, Great Falls, Montana
Submitted on Briefs: July 28, 2021
Decided: August 17, 2021
Filed:
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__________________________________________
Clerk
Justice Laurie McKinnon 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 Kingsley Ariegwe appeals the denial of his second petition for postconviction
relief from the Eighth Judicial District Court, Cascade County, holding the petition was
time barred and procedurally barred. We affirm.
¶3 In March 2004, Ariegwe was convicted of attempted sexual intercourse without
consent and unlawful transactions with minors. Prior to sentencing, Ariegwe moved for a
new trial based on purported errors arising from the DNA evidence. The district court
denied his motion and Ariegwe appealed in August 2004 asserting violations of his right
to a speedy trial, error in denying his motion for a new trial, and in the award of
restitution. We affirmed the court’s denial of Ariegwe’s motion to dismiss for lack of a
speedy trial and for a new trial. State v. Ariegwe, 2007 MT 204, ¶ 182, 338 Mont. 442,
167 P.3d 815 (Ariegwe I). The Court, however, reversed Ariegwe’s requirement to pay
restitution under § 46-18-201(5), MCA, and remanded the case for a restitution hearing.
Ariegwe I, ¶ 182.
¶4 Following remand, the district court issued an amended sentencing order. In
April 2008, this Court affirmed the amended sentencing order. In September 2008,
Ariegwe filed his first petition for postconviction relief, asserting claims of
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ineffective assistance of counsel based on counsel’s failure to object to testimony
provided by a psychologist and for failing to introduce evidence of a recorded
conversation between the victim and her friend. The district court conducted an
evidentiary hearing and denied Ariegwe’s petition. We affirmed the denial of his
petition. Ariegwe v. State, 2012 MT 166, ¶ 30, 365 Mont. 505, 285 P.3d 424
(Ariegwe II).
¶5 In 2015, Ariegwe filed a petition for writ of habeas corpus with this Court. We
denied his claims. Ariegwe v. Batista, No. OP 15-0462, 381 Mont. 543, 357 P.3d 336
(Aug. 18, 2015) (Ariegwe III). In 2019, Ariegwe filed a petition for a writ of
extraordinary relief. We denied his claims. Ariegwe v. State, No. OP 19-0514,
397 Mont. 555, 449 P.3d 791 (Sept. 24, 2019) (Ariegwe IV). Ariegwe also challenged his
conviction by means of writ of habeas corpus in federal court. See Ariegwe v. Kirkegard,
2013 U.S. Dist. LEXIS 161247 (D. Mont. 2013); see also Ariegwe v. Fender,
2019 U.S. App. LEXIS 25916 (9th Cir. 2019). Both petitions were denied.
¶6 On March 24, 2020, Ariegwe filed a petition for a writ of habeas corpus in the
District Court. Through an attached memorandum, Ariegwe again asserted portions of
the trial testimony were inaccurate and flawed. Specifically, Ariegwe alleged seven
claims for relief with the District Court: (1) the prosecution introduced microscopic hair
comparison testimony that it knew to be flawed; (2) his right to equal protection was
violated when he was treated differently from two other “similarly situated” individuals,
who were later exonerated; (3) his rights under the Civil Rights Act of 1964 were
violated because he was a member of a protected class; (4) he was innocent and was
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denied his right to a fair trial; (5) he received ineffective assistance of appellate counsel
for failing to investigate the hair comparison evidence; (6) the length of his sentences
violated his right to due process under both the United States Constitution and
Montana Constitution; and (7) his postconviction counsel was ineffective.
¶7 The District Court deemed Ariegwe’s petition for writ of habeas corpus a petition
for postconviction relief because he alleged issues pertaining to his conviction and
sentence. See § 46-22-101(2), MCA. The State was given an opportunity to respond and
asserted his petition was time barred because it was filed almost eight years after this
Court’s denial of his first petition for postconviction relief. The State also argued the
petition was procedurally barred because Ariegwe could have raised all his claims in his
original postconviction petition. On December 22, 2020, the District Court concluded
Ariegwe’s claims alleged in his second petition for postconviction relief were both
time barred and procedurally barred.
¶8 On appeal, Ariegwe asserts the District Court incorrectly denied his second
petition for postconviction relief.
¶9 “This Court reviews a district court’s denial of a petition for postconviction relief
to determine whether its factual findings are clearly erroneous and whether its legal
conclusions are correct.” Garding v. State, 2020 MT 163, ¶ 12, 400 Mont. 296,
466 P.3d 501 (citing Rose v. State, 2013 MT 161, ¶ 15, 370 Mont. 398, 304 P.3d 387).
The petitioner has the burden of proving by a preponderance of the evidence that he or
she is entitled to relief. Herman v. State, 2006 MT 7, ¶ 44, 330 Mont. 267, 127 P.3d 422.
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¶10 The District Court first concluded Ariegwe’s petition was time barred. Petitions
for postconviction relief generally must be filed “within 1 year of the date that the
conviction becomes final.” Section 46-21-102(1), MCA. This Court affirmed the denial
of Ariegwe’s first petition for postconviction relief on September 11, 2012. Our decision
became final when the time for appealing to the United Stated Supreme Court expired—
ninety days after entry of the judgment. See U.S. Sup. Ct. R. 13. Thus, the order became
final on December 10, 2012. Ariegwe’s second petition for postconviction relief, filed on
March 24, 2020, was filed almost eight years past the one-year filing deadline. The
District Court correctly concluded Ariegwe’s second petition was time barred.
¶11 Ariegwe asserts even if his petition is time barred, he is allowed to raise his claims
because they allege the existence of newly discovered evidence under
§ 46-21-102(2), MCA. An untimely filed petition for postconviction relief may fall
within the exception to the time bar provided in § 46-21-102(2), MCA, when a claim is
made that alleges the existence of newly discovered evidence. Section
46-21-102(2), MCA, requires claims that allege the existence of newly discovered
evidence to 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.” Ariegwe did not present
information in support of newly discovered evidence before the District Court nor was
his petition timely under § 46-21-102(2), MCA. This Court concludes the District Court
did not err in denying Ariegwe’s petition for postconviction relief without considering
§ 46-21-102(2), MCA.
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¶12 The District Court also concluded Ariegwe’s petition was procedurally barred.
Postconviction petitioners are barred from filing second or subsequent petitions unless
the petitioner is raising a ground for relief that could not reasonably have been raised in
the original or an amended original postconviction petition. Section
46-21-105(1)(b), MCA. Petitions may be amended during the course of an ongoing
proceeding that was timely initiated. State v. Root, 2003 MT 28, ¶ 12, 314 Mont. 186,
64 P.3d 1035 (citing § 46-21-105(1)(a), MCA). All grounds for relief by a petitioner
under § 46-21-101, MCA, must be raised in the original or amended original petition.
Section 46-21-105(1)(a), MCA. Furthermore, claims of ineffective counsel in
proceedings on an original or an amended original petition may not be raised in a second
or subsequent petition. Section 46-21-105(2), MCA.
¶13 Ariegwe raised claims of ineffective assistance of counsel in his first petition for
postconviction relief and, again, raised the same or similar claims in his second petition.
The District Court was correct to conclude Ariegwe’s claims of ineffective assistance of
counsel were procedurally barred. The District Court was also correct to conclude
Ariegwe’s five additional claims are procedurally barred because they could have been
raised in his earlier postconviction and appellate actions. Finally, Ariegwe’s assertion
that the District Court erroneously relied on an unrelated rape allegation when it imposed
his sentence could have been asserted in his first petition for postconviction relief and is,
therefore, procedurally barred.
¶14 Ariegwe’s claims raised in his second petition for postconviction relief are time
barred and procedurally barred. The District Court’s order is affirmed.
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¶15 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.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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