No. 03-227
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 312N
D. WAYNE KELLAMES,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DV 2002-734
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
D. Wayne Kellames, Deer Lodge, Montana (pro se)
For Respondent:
Honorable Mike McGrath, Montana Attorney General, Micheal S.
Wellenstein, Assistant Montana Attorney General, Helena, Montana; Dennis
Paxinos, Yellowstone County Attorney, Ira Eakin, Deputy Yellowstone
County Attorney, Billings, Montana
Submitted on Briefs: October 23, 2003
Decided: November 13, 2003
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 D. Wayne Kellames (Kellames) was sentenced to forty years at Montana State
Prison after pleading guilty to Felony Robbery. He appealed his conviction to this Court.
We affirmed it. He subsequently filed a Petition for Postconviction Relief with the District
Court. The District Court denied the Petition. Appearing pro se, he appeals from the Order
on Petition for Postconviction Relief entered by the Thirteenth Judicial District Court,
Yellowstone County. We affirm.
¶3 Kellames claims that the District Court erred in denying his Petition for
Postconviction Relief for the following reasons:
a. He was denied effective assistance of counsel.
b. He was denied due process of the law under Article II, § 17 of the Montana
Constitution.
c. His conviction was obtained by use of coerced confession.
¶4 We have determined to decide this case pursuant to our Order dated February 11,
2003, amending Section I.3 of our 1996 Internal Operating Rules and providing for
memorandum opinions. The standard of review of a trial court's denial of a petition for
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postconviction relief is whether the court's findings of fact are clearly erroneous and whether
its conclusions of law are correct. Hope v. State, 2003 MT 191, ¶ 13, 316 Mont. 497, ¶ 13,
74 P.3d 1039, ¶ 13.
¶5 Kellames presented arguments that his attorneys provided ineffective assistance. As
observed by the District Court in its Order, the majority of those arguments were presented
previously to this Court and rejected on direct appeal. State v. Kellames, 2002 MT 41, 308
Mont. 347, 43 P.3d 293. These issues cannot be reviewed in postconviction relief, barring
the presentation of new evidence. Beach v. Day (1996), 275 Mont. 370, 913 P.2d 622. No
new evidence was presented.
¶6 The District Court carefully considered the three additional "ineffective assistance"
arguments Kellames presented that he had not previously appealed. The court then
concluded that these arguments should have been brought on direct appeal, were
unsupported by the evidence, or would not pass the traditional test used to determine
ineffective assistance of counsel as set forth in Strickland v. Washington (1984), 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674. We agree with this conclusion.
¶7 Kellames' due process claim must fail for similar reasons. Kellames claims his due
process rights were violated because no hearing was held after he filed a motion for
appointment of new counsel. The record does not support this claim. A hearing was held
and the District Court concluded that Kellames' complaints were not seemingly substantial.
We affirmed this conclusion on direct appeal and, therefore, it may not be reconsidered
under a postconviction petition.
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¶8 Lastly, as correctly determined by the District Court, Kellames' argument that his
confession was coerced has already been before this Court on direct appeal and will not be
reconsidered on a postconviction petition.
CONCLUSION
¶9 Accordingly, we affirm the judgment of the District Court.
/S/ PATRICIA COTTER
We Concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
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