No. 02-014
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 267
CALVIN GRIFFIN,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula, Cause No. D.V.-01-458
The Honorable Edward P. McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Calvin Griffin, Deer Lodge, Montana (pro se)
For Respondent:
Mike McGrath, Montana Attorney General, Gregg W. Coughlin, Assistant
Montana Attorney General, Helena, Montana; Fred Van Valkenburg,
Missoula County Attorney, Kirsten LaCroix, Deputy Missoula County Attorney,
Missoula, Montana
Submitted on Briefs: January 9, 2003
Decided: September 30, 2003
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Appellant Calvin Griffin was convicted of ten counts of sexual abuse of children in
the Fourth Judicial District Court, Missoula County. Griffin subsequently filed a petition for
post-conviction relief in which he alleged various claims, including ineffective assistance of
counsel. The District Court denied Griffin’s petition for post-conviction relief, and Griffin
appeals. We affirm.
¶2 We restate the sole issue on appeal as follows:
¶3 Did the District Court err in denying Griffin’s petition for post-conviction relief?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Calvin Griffin was charged by information with 174 counts of sexual abuse of
children, in violation of § 45-5-625(1)(e), MCA (1997). Griffin plead not guilty to all 174
counts on July 28, 1999. On June 6, 2000, the Respondent, State of Montana, filed an
amended information, charging Griffin with ten counts of sexual abuse of children. Pursuant
to a plea agreement, Griffin plead guilty to the ten counts contained in the amended
information on June 21, 2000. Griffin was sentenced by the District Court on August 2,
2000.
¶5 On June 13, 2001, Griffin filed a pro se petition for post-conviction relief. Griffin’s
petition asserted various claims, including ineffective assistance of counsel. The District
Court denied Griffin’s petition on November 5, 2001, stating that all of Griffin’s claims were
“barred, waived, or fail[ed] on the face of the Petition and the record.” Griffin appealed the
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District Court’s denial of his petition for post-conviction relief on November 19, 2001.
¶6 With his appeal pending, Griffin filed a pro se petition for writ of supervisory control
with this Court on May 14, 2002. Griffin’s petition alleged that, pursuant to the United
States Supreme Court’s decision in Ashcroft v. Free Speech Coalition (2002), 535 U.S. 234,
122 S.Ct. 1389, 152 L.Ed.2d 403, his conviction was invalid. We issued an order on July
16, 2002, denying Griffin’s petition for writ of supervisory control, and remanding Griffin’s
petition for post-conviction relief to the District Court for consideration of his Ashcroft
claim. Upon remand, the District Court examined Griffin’s Ashcroft claim and determined
that it failed as a matter of law. Accordingly, the District Court returned the instant case to
this Court, for disposition of Griffin’s appeal, on September 3, 2002.
STANDARD OF REVIEW
¶7 The standard of review of a district court’s denial of a petition for post-conviction
relief is whether the district court’s findings of fact are clearly erroneous and whether its
conclusions of law are correct. Porter v. State, 2002 MT 319, ¶ 13, 313 Mont. 149, ¶ 13, 60
P.3d 951, ¶ 13.
DISCUSSION
¶8 Did the District Court err in denying Griffin’s petition for post-conviction relief?
¶9 On appeal, Griffin asserts that the District Court erred when it denied his petition for
post-conviction relief. The State counters that because Griffin failed to advance evidence
in support of his claims, the District Court properly dismissed his petition as a matter of law.
We agree.
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¶10 A person requesting post-conviction relief has the burden to show, by a
preponderance of the evidence, that the facts justify relief. State v. Peck (1993), 263 Mont.
1, 3-4, 865 P.2d 304, 305. If a post-conviction petition fails to state a claim for relief, a
district court may dismiss the petition as a matter of law. Section 46-21-201(1)(a), MCA
(1999). Section 46-21-104, MCA (1999), addresses the proper contents of a petition for
post-conviction relief. Section 46-21-104, MCA (1999), provides, in pertinent part, that:
(1) The petition for post-conviction relief must:
...
(c) 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.
¶11 In this case, Griffin’s petition for post-conviction relief asserted claims of: (1)
prosecutorial misconduct; (2) double jeopardy; (3) judicial bias, and (4) ineffective
assistance of counsel. However, Griffin failed to bolster his claims with supporting
evidence, as required by § 46-21-104(1)(c), MCA (1999). That is, while Griffin made
numerous factual allegations relating to his claims, he neglected to provide affidavits,
records, or other evidence to support such allegations. We have stated that allegations in a
petition for post-conviction relief do not constitute evidence. State v. Hanson, 1999 MT 226,
¶ 22, 296 Mont. 82, ¶ 22, 988 P.2d 299, ¶ 22. Griffin’s petition for post-conviction relief
failed to meet the requirements of § 46-21-104(1)(c), MCA (1999). Accordingly, the
District Court did not err in denying Griffin’s petition.
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¶12 Griffin further contends that he should have been granted an evidentiary hearing on
his petition for post-conviction relief. However, such a hearing is not required. A district
court is permitted to dismiss a petition for post-conviction relief based solely upon the files
and records of the case. See § 46-21-201(1)(a), MCA (1999), and Swearingen v. State, 2001
MT 10, ¶ 7, 304 Mont. 97, ¶ 7, 18 P.3d 998, ¶ 7. Moreover, as we noted above, the
allegations in Griffin’s petition were not supported by any form of evidence. We have
previously concluded that unsupported allegations are not sufficient to entitle a post-
conviction petitioner to an evidentiary hearing. Hanson, ¶ 22. Therefore, the District Court
did not err in denying Griffin’s petition for post-conviction relief without conducting a
hearing.
¶13 Griffin also maintains that, pursuant to the United States Supreme Court’s decision
in Ashcroft v. Free Speech Coalition (2002), 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403,
his conviction is invalid. Griffin was convicted under § 45-5-625, MCA (1997), which
provides, in pertinent part:
(1) A person commits the offense of sexual abuse of children if the person:
...
(e) knowingly possesses any visual or print medium in which children are
engaged in sexual conduct, actual or simulated[.]
Griffin was discovered to be in possession of images of children engaged in sexual conduct.
As such, Griffin was charged with, and convicted of, violating § 45-5-625(1)(e), MCA
(1997).
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¶14 In Ashcroft, the United States Supreme Court held that 18 U.S.C. § 2256(8)(B), which
prohibited “virtual child pornography,” was unconstitutional and overbroad. Ashcroft, 535
U.S. at 241, 256, 122 S.Ct. at 1397, 1405. Consequently, Griffin asserts that pursuant to
Ashcroft, § 45-5-625(1)(e), MCA (1997), is unconstitutional, and his conviction is invalid.
However, “virtual child pornography,” as defined in 18 U.S.C. § 2256(8)(B), refers to
images that are created without using actual children. Ashcroft, 535 U.S. at 241-42, 122
S.Ct. at 1397. Griffin was convicted under § 45-5-625(1)(e), MCA (1997), which
criminalizes the possession of visual or print medium in which actual children are engaged
in sexual conduct. The District Court found that the images in Griffin’s possession were
“clearly and obviously created by someone actually photographing real children engaging
in actual sexual activities with other real children and/or with real adults.” Therefore, neither
the statute under which Griffin was convicted, nor Griffin’s crimes, dealt with child
pornography that was “virtual” in nature. As such, the Ashcroft decision is inapplicable to
the instant case.
¶15 Finally, we note that Griffin’s appellate brief contains an argument, regarding his
eligibility for parole, which did not appear in either his petition for post-conviction relief or
his petition for writ of supervisory control. Thus, Griffin raises this issue for the first time
on appeal. We have repeatedly held that we will not address issues raised for the first time
on appeal. State v. Bingman, 2002 MT 350, ¶ 58, 313 Mont. 376, ¶ 58, 61 P.3d 153, ¶ 58.
Accordingly, we decline to address Griffin’s argument regarding his eligibility for parole.
¶16 For the foregoing reasons, the judgment of the District Court is affirmed.
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/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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