April 14 2009
DA 08-0251
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 131N
WAYNE RAMSEY,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV 07-1415
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wayne Roger Ramsey, self-represented litigant, Shelby, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney; Kirsten Pabst LaCroix,
Deputy County Attorney, Missoula, Montana
Submitted on Briefs: April 1, 2009
Decided: April 14, 2009
Filed:
__________________________________________
Clerk
Justice Brian Morris 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. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court 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 Petitioner Wayne Ramsey (Ramsey) appeals from an order of the Fourth Judicial
District Court, Missoula County, denying his petition for postconviction relief. We affirm.
¶3 The State charged Ramsey with aggravated burglary, assault with a weapon, and
misdemeanor theft, following his arrest on February 22, 2005. The State alleged that
Ramsey broke into the trailer home of a person from whom he had no consent, took several
items of personal property without permission, fled the scene when the owner detected him,
and then pulled a gun on the owner to hasten escape. The District Court held a bench trial on
September 13-14, 2005, after which the court convicted Ramsey on all charges. The court
sentenced Ramsey to 45 years to the Montana State Prison, with 35 years suspended. We
affirmed in State v. Ramsey, 2007 MT 31, 336 Mont. 44, 152 P.3d 710.
¶4 Ramsey filed a petition for postconviction relief on October 16, 2007. Ramsey
alleged that the State had failed to disclose the identity of an exculpatory witness and that the
State did not disclose a 911 recording of this exculpatory witness’s telephone call. The State
argued that it provided a recording of the witness’s call as well as the 911 operator’s notes
that identified the caller by name.
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¶5 Ramsey next alleged that counsel for the State threatened one of his witnesses with
prosecution thereby potentially influencing the witness’s testimony. The State points out
that the court ended up granting use immunity to the witness and thereby obviated any
concerns that the State may have threatened the witness.
¶6 Ramsey’s petition also alleged that his trial counsel had provided ineffective
assistance of counsel due to counsel’s inexperience, the counsel’s alleged change in trial
strategy in seeking a bench trial as opposed to a jury trial, and counsel’s failure to suppress
the contents of Ramsey’s backpack that the officers had seized at the time of his arrest.
¶7 Finally, Ramsey took issue with his designation as a persistent felony offender, the
court’s alleged use of a file from a dependent neglect proceeding involving him and his ex-
wife, and argued that the trial court erred in determining that he did not have permission to
enter the residence.
¶8 The District Court agreed with the State that procedural bars applied to Ramsey’s
claims regarding the alleged withholding of evidence and the alleged threatening of one of
his witnesses by the State. Ramsey had failed to raise these issues on direct appeal. The
court further agreed with the State that Ramsey had failed to identify any specific facts to
support his claims of ineffective assistance of counsel. The court also determined that the
doctrine of res judicata barred Ramsey’s challenge to his persistent felony offender
designation, the court’s comments on the dependent neglect file, and the question of whether
he had permission to enter the victim’s home in that Ramsey already raised these same issues
on direct appeal. Ramsey appeals.
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¶9 Ramsey raises these same issues on appeal. Section 46-21-104(1)-(2), MCA, sets
forth the statutory pleading requirements for seeking postconviction relief. A petition for
postconviction relief must be based on more than mere conclusory allegations. It must
“identify all facts supporting the grounds for relief set forth in the petition and have attached
affidavits, records, or other evidence establishing the existence of those facts.” Ellenburg v.
Chase, 2004 MT 66, ¶ 16, 320 Mont. 315, 87 P.3d 473. A party alleging ineffective
assistance of counsel must come forward with specific factual allegations that establish by a
preponderance of the evidence that the party is entitled to relief. Herman v. State, 2006 MT
7, ¶ 44, 330 Mont. 267, 127 P.3d 422.
¶10 We review a district court’s findings of facts for clear error. We review a district
court’s conclusions of law for correctness. Halley v. State, 2008 MT 193, ¶ 11, 344 Mont.
37, 186 P.3d 859. We review for correctness a district court’s decision to dismiss a petition
for postconviction relief as a matter of law. Herman, ¶ 13.
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2003, that provide for memorandum opinions.
It is manifest on the face of the briefs and record before us that the District Court correctly
applied procedural bars to Ramsey’s claims. It is further manifest on the face of the briefs
and the record before us that Ramsey has failed to meet his burden of proving by a
preponderance of the evidence that his trial counsel provided ineffective assistance.
Herman, ¶ 44.
¶12 We affirm.
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/S/ BRIAN MORRIS
We Concur:
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
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