May 6 2009
DA 07-0413
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 156N
THOMAS KELLEY,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. DV-06-1227(c)
Honorable Kenneth R. Neill, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Thomas Kelley, (self-represented litigant); Deer Lodge, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General; Helena, Montana
Submitted on Briefs: March 25, 2009
Decided: May 5, 2009
Filed:
__________________________________________
Clerk
Justice W. William Leaphart 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 Self-represented petitioner Thomas Michael Kelley (Kelley) appeals from the
order of the Eighth Judicial District Court, Cascade County, denying his petition for
postconviction relief. We affirm.
¶3 The State charged Kelley with criminal mischief, burglary, criminal possession of
dangerous drugs, criminal possession of drug paraphernalia, and theft after an early
morning break-in at a pet store in Great Falls, Montana. Kelley pleaded not guilty to the
charges, and the District Court appointed Megan Lulf-Sutton from the public defender’s
office to represent Kelley. Following her appointment, Lulf-Sutton filed a motion for an
immediate hearing due to Kelley’s dissatisfaction with her representation. The District
Court held a hearing on Kelley’s complaints and thereafter, appointed Joe Gilligan to
represent Kelley.
¶4 Following a jury trial, Kelley was convicted of theft, possession of dangerous
drugs, and possession of drug paraphernalia. Kelley was found not guilty of burglary and
criminal mischief. Judge Kenneth R. Neill from Cascade County sentenced Kelley to ten
years in the Montana State Prison for theft, six months in jail for possession of dangerous
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drugs, and six months in jail for possession of drug paraphernalia, the sentences to run
concurrently. Kelley was not eligible for parole due to his extensive criminal history and
use of aliases. We affirmed Kelley’s conviction in State v. Kelley, 2005 MT 200,
328
Mont. 187,
119 P.3d 67, in which we addressed whether the evidence was sufficient to
support Kelley’s theft conviction.
¶5 On August 25, 2006, Kelley filed a motion for postconviction relief in which he
raised numerous issues, including complaints against Judge Neill, attorneys Lulf-Sutton
and Gilligan, the State, the jury, and the police. Kelley also amended his petition to
include a due process claim and a claim against the public defender system in general.
Judge Dirk Sandefur received Kelley’s petition for postconviction relief but recused
himself from the case; Judge Neill assumed jurisdiction. Thereafter, Kelley filed a
motion requesting that Judge Neill recuse himself from the postconviction proceedings.
In substance, Kelley alleged that Judge Neill was biased as demonstrated by the sentence
he imposed. Judge Neill denied Kelley’s recusal request and, after substantively
addressing each of Kelley’s numerous complaints, denied his motion for postconviction
relief. In the order denying Kelley’s petition, Judge Neill explained that postconviction
relief is not a substitute for issues that could have been addressed on direct appeal. Judge
Neill also noted that Kelley failed to provide affidavits, records, or other evidence to
support his complaints in his petition for postconviction relief. In addition, Judge Neill
concluded that Kelley’s counsel did not render ineffective assistance. In sum, the District
Court rejected each of Kelley’s complaints.
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¶6 Kelley appeals the denial of his petition for postconviction relief. Kelley’s
primary argument is that Judge Neill should have recused himself from the
postconviction proceedings. Kelley also argues that attorneys Lulf-Sutton and Gilligan
rendered ineffective assistance of counsel.
¶7 We review a district court’s denial of a petition for postconviction relief to
determine whether the court’s findings of fact are clearly erroneous and its conclusions of
law are correct. Whitlow v. State, 2008 MT 140, ¶ 9,
343 Mont. 90,
183 P.3d 861.
Ineffective assistance of counsel claims contain mixed questions of law and fact which
we review de novo. Whitlow, ¶ 9.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the face of the briefs and the record before us
that the District Court correctly denied Kelley’s petition for postconviction relief. Most
of Kelley’s claims could have been raised on direct appeal and are thus, procedurally
barred pursuant to § 46-21-105(2), MCA. It is also manifest on the briefs and the record
before us that Kelley has failed to demonstrate that he received ineffective assistance of
counsel under Strickland v. Washington,
466 U.S. 668,
104 S. Ct. 2052 (1984).
¶9 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE
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