June 1 2011
DA 10-0554
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 120N
CHARLES DEVLIN,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC 06-92
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Charles Devlin, self-represented, Deer Lodge, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Mark W. Mattioli, Assistant
Attorney General, Helena, Montana
Mitch Young, Lake County Attorney, Polson, Montana
Submitted on Briefs: May 11, 2011
Decided: June 1, 2011
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 Charles Devlin (Devlin) appeals an order of the Twentieth Judicial District Court,
Lake County, denying his petition for postconviction relief (“Petition”). We affirm.
¶3 Devlin was convicted of kidnapping, obstruction of a peace officer, and bail jumping
in two separate cases. He was sentenced as a persistent felony offender to 50 years in prison,
with parole ineligibility for 25 years, in the kidnapping/obstruction case; and a concurrent
term of 20 years in prison, with 15 years suspended, in the bail jumping case.
¶4 Devlin filed direct appeals to this Court in both cases. In the kidnapping/obstruction
case, Devlin challenged the district court’s denial of his motion to change venue and the
sufficiency of the evidence relating to the obstruction charge. We affirmed the district court
in State v. Devlin, 2009 MT 55N, 2009 Mont. LEXIS 64 (February 24, 2009). In the bail
jumping case, Devlin raised one issue – whether the district court abused its discretion when
it denied his motion to change venue. We affirmed the district court in State v. Devlin, 2009
MT 18, 349 Mont. 67, 201 P.3d 791.
¶5 On June 30, 2010, Devlin filed his Petition. In his “Sworn Statement of Defendant,”
Devlin alleged insufficiency of the evidence in his kidnapping case and that he did not act
purposely or knowingly. He also alleged his trial counsel failed to poll the jury after the
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verdict. In another document, titled “Memorandum in Support of Motions,” Devlin accused
the prosecution of prosecutorial misconduct, accused the prosecutor and arresting officer of
conspiring to commit perjury, and alleged media bias.
¶6 The District Court ordered the State of Montana (the State) to respond. In its
response, the State argued the Petition should be dismissed for failure to comply with § 46-
21-104, MCA, and that the petition was procedurally barred under § 46-21-105(2), MCA.
¶7 The District Court denied Devlin’s Petition. It found the Petition failed to comply
with § 46-21-104, MCA, because it did not:
clearly set forth the alleged violation or violations . . . identify all the 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.
Petitioner’s Memorandum consists of little more than a rehashing of his
version of his case mixed with conclusory accusations with no factual support
followed up with a lengthy non sequitur of disconnected and mostly irrelevant
legal citations lacking context or application to any facts in this case. An ipse
dixit alone will not satisfy the statutory requirements for postconviction relief.
The only allegation found even remotely suitable for postconviction relief was an ineffective
assistance of counsel claim for failing to poll the jury. The District Court found that “no
reasonable probability exists that polling the jury would have changed the outcome of the
trial.”
¶8 Devlin appeals the denial of his Petition. Devlin also asserts two new claims on
appeal, alleging jurors were untruthful during voir dire and challenging jury instructions. We
will not address issues raised for the first time on appeal, including in postconviction
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proceedings. State v. Belanus, 2010 MT 204, ¶ 17, 357 Mont. 463, 240 P.3d 1021; Ford v.
State, 2005 MT 151, ¶ 12, 327 Mont. 378, 114 P.3d 244.
¶9 A district court may dismiss a petition for postconviction relief as a matter of law.
Herman v. State, 2006 MT 7, ¶ 13, 330 Mont. 267, 127 P.3d 422. We review conclusions of
law for correctness. Id.
¶10 The petitioner in a postconviction proceeding bears the burden of proving, by a
preponderance of the evidence, that he or she is entitled to relief. Ellenburg v. Chase, 2004
MT 66, ¶ 12, 320 Mont. 315, 87 P.3d 473. A petition for postconviction relief must be based
on more than mere conclusory allegations. Id. at ¶ 16. A petition that does not meet the
procedural threshold of § 46-21-104, MCA, may be dismissed. Herman, ¶ 38.
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for noncitable memorandum opinions. The issues
are legal and are controlled by settled Montana law, which the District Court correctly
interpreted. Devlin’s Petition does not comply with § 46-21-104, MCA. Additionally,
Devlin failed to meet his burden of proof under § 46-21-104, MCA, or under the test for
ineffective assistance of counsel announced in Strickland v. Washington, 466 U.S. 668
(1984); see also Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861.
¶12 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
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/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE
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