Kelly v. State

No. 04-179 IN THE SUPREME COURT OF THE STATE OF MONTANA 2004 MT 268N DANNY R. KELLY, 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 2003-119 Honorable Ingrid Gustafson, Presiding Judge COUNSEL OF RECORD: For Appellant: Danny Ray Kelly, Pro Se, Shelby, Montana For Respondent: Honorable Mike McGrath, Attorney General; Jennifer Anders, Assistant Attorney General, Helena, Montana Dennis Paxinos, Yellowstone County Attorney; Mark J. Murphy, Deputy Yellowstone County Attorney, Billings, Montana Submitted on Briefs: August 31, 2004 Decided: September 28, 2004 Filed: __________________________________________ Clerk Chief Justice Karla M. Gray delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following memorandum decision shall not be cited as precedent. Its case title, Supreme Court cause number and disposition shall be included in this Court’s quarterly list published in the Pacific Reporter and Montana Reports. ¶2 Danny Ray Kelly (Kelly) appeals from the memorandum and order entered by the Thirteenth Judicial District Court, Yellowstone County, denying his petition for postconviction relief. We affirm. ¶3 Kelly petitioned the District Court for postconviction relief, raising seven issues regarding the validity of his underlying conviction and sentence. The District Court denied the petition on the basis that it was procedurally barred pursuant to § 46-21-105(2), MCA, and time barred pursuant to § 46-21-102, MCA. Kelly asserts error. ¶4 We have determined to decide this case pursuant to our Order of February 11, 2003, amending Section 1.3 of our 1996 Internal Operating Rules and providing for memorandum opinions. On the face of the briefs and the record on appeal, it is manifest that the appeal is without merit because the issues are clearly controlled by settled Montana law which the District Court correctly interpreted. ¶5 We affirm the order of the District Court denying Kelly’s petition for postconviction relief. /S/ KARLA M. GRAY 2 We concur: /S/ PATRICIA O. COTTER /S/ JAMES C. NELSON /S/ JOHN WARNER /S/ W. WILLIAM LEAPHART 3