November 24 2009
DA 08-0244
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 398
BARRY ALLEN BEACH,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and For the County of Roosevelt, Cause No. 1068-C
Honorable David Cybulski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Terrance L. Toavs, Attorney at Law, Wolf Point, Montana
Peter K. Camiel, Mair & Camiel, Seattle, Washington
For Appellee:
Hon. Steve Bullock, Montana Attorney General; John Paulson, Assistant
Attorney General, Helena, Montana
Ryan Rusche, Roosevelt County Attorney, Wolf Point, Montana
Submitted on Briefs: January 22, 2009
Decided: November 24, 2009
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Barry Allan Beach (Beach) appeals from an order of the Fifteenth Judicial District
Court, Roosevelt County, that denied his petition for post-conviction relief. We remand to
the District Court to hold an evidentiary hearing to assess Beach’s alleged newly discovered
evidence.
¶2 Beach’s appeal requires us to resolve the following issues:
¶3 Whether the District Court properly ruled that Beach’s petition for post-conviction
relief was procedurally barred.
¶4 Whether the District Court properly ruled that Beach’s petition for post-conviction
relief was time barred.
¶5 Whether the District Court properly denied Beach’s petition for post-conviction relief
without holding an evidentiary hearing.
PROCEDURAL AND FACTUAL BACKGROUND
¶6 A jury convicted Beach of deliberate homicide on April 13, 1984. The court
sentenced Beach on May 11, 1984, to 100 years in the Montana State Prison without the
possibility of parole.
¶7 Beach appealed his conviction on multiple grounds. This Court upheld his conviction
and sentence. State v. Beach, 217 Mont. 132,
705 P.2d 94 (1985). The Court also denied
Beach’s petition for rehearing.
¶8 Beach filed a petition for post-conviction relief to this Court on October 30, 1995.
The Court held that Beach’s petition was procedurally barred either by res judicata and/or by
2
the statutory five-year limitations period for filing a post-conviction relief petition. Beach v.
Day, 275 Mont. 370, 375,
913 P.2d 622, 625 (1996).
¶9 The Federal District Court for the District of Montana denied Beach’s petition for
habeas corpus on March 31, 1998. Beach v. Mahoney, CV 92-92-BLG-JDS (D. Mont. Mar.
31, 1998). The Ninth Circuit Court of Appeals affirmed. Beach v. McCormick,
191 F.3d
459 (table),
1999 WL 685944 (9th Cir. 1999).
¶10 Beach filed a petition in January 2005 for DNA testing of physical evidence that
investigators had collected during the homicide investigation. Much of the evidence,
including a pubic hair found on the victim’s sweater, could not be located for testing.
¶11 Beach filed an application for executive clemency to the Montana Board of Pardons
and Parole (MBPP) in 2005. MBPP denied Beach’s application on November 30, 2005.
¶12 Beach submitted an application for clemency, pardon, or commutation to Governor
Brian Schweitzer. Governor Schweitzer referred his application to the MBPP for
consideration. MBPP conducted a three-day public hearing on Beach’s application. MBPP
denied Beach’s application on August 20, 2007.
¶13 Beach filed a petition for post-conviction relief on January 18, 2008, based in part on
alleged newly discovered evidence. The State filed a motion to dismiss. The District Court
denied Beach’s petition on March 28, 2008, without conducting a hearing. The court’s
cursory order stated that Beach’s petition was procedurally and time barred. The court
further concluded that the cumulative evidence proffered by Beach failed to demonstrate
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actual innocence in support of the fundamental miscarriage of justice exception to the time
requirements. Beach appeals.
STANDARD OF REVIEW
¶14 We review a district court’s denial of a petition for post-conviction relief to determine
whether the court’s findings of fact are clearly erroneous and whether its conclusions of law
are correct. Heath v. State, 2009 MT 7, ¶ 13,
348 Mont. 361,
202 P.3d 118. We review
discretionary rulings in post-conviction relief proceedings, including rulings related to
whether to hold an evidentiary hearing, for an abuse of discretion. Heath, ¶ 13.
DISCUSSION
¶15 Whether the District Court properly ruled that Beach’s petition for post-conviction
relief was procedurally barred.
¶16 The District Court failed to include in its order an analysis of why it deemed Beach’s
petition to be procedurally barred. Section 46-21-104(1)(c), MCA, provides the necessary
elements of a properly filed petition for post-conviction relief. A defendant 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.” Section 46-
21-104(1)(c), MCA. Mere conclusory allegations are insufficient to support the petition.
State v. Wright, 2001 MT 282, ¶ 31,
307 Mont. 349,
42 P.3d 753. A defendant’s affidavit,
unsupported by evidence, also is insufficient to support a petition. Williams v. State,
2002
MT 189, ¶ 19,
311 Mont. 108,
53 P.3d 864.
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¶17 Beach provided a nine page summary of the alleged newly discovered evidence and
twenty-nine exhibits that illustrate this new evidence. Beach also provided a twenty-seven
page memorandum in support of his petition. The State argues that regardless of whether
Beach has satisfied § 46-21-104, MCA, he has failed to overcome the procedural bar on
successive petitions set forth in § 46-21-105, MCA.
¶18 A second or subsequent petition must demonstrate good cause why the petition has
asserted claims that were not raised in the original petition. Section 46-21-105, MCA; State
v. Root, 2003 MT 28, ¶ 16,
314 Mont. 186,
64 P.3d 1035. Beach’s 1995 petition failed to
allege newly discovered evidence. This Court deemed that petition procedurally barred by
res judicata and/or by the statutory five-year limitations period for filing such a petition.
Beach,
275 Mont. at 375,
913 P.2d at 625.
¶19 Beach’s current petition, by contrast, alleges newly discovered evidence that he
claims became available recently only through the efforts of his defense team. Beach
contends that he could not have raised the newly discovered evidence in his first petition.
Nothing in the District Court’s order indicates that the court implicitly found a lack of
diligence on Beach’s part in locating this newly discovered evidence. In light of this
omission, we will grant Beach the benefit of the doubt as to whether he acted with sufficient
alacrity in locating this newly discovered evidence to meet the requirements of § 46-21-105,
MCA. Accordingly, we determine that Beach’s petition for post-conviction relief is not
procedurally barred by either § 46-21-104, MCA, or § 46-21-105, MCA.
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¶20 Whether the District Court properly ruled that Beach’s petition for post-conviction
relief was time barred.
¶21 The District Court without analysis simply stated in its order that Beach’s petition was
time-barred. Section 46-21-102, MCA, governs the timeliness of petitions for post-
conviction relief. The 1997 Montana legislature amended § 46-21-102, MCA, to allow “a
petition for relief [to] be filed at any time within 1 year of the date that the conviction
becomes final.” The jurisdictional time limit is not absolute. The legislature included a
statutory exception to the mandatory time limit for “[a] claim that alleges the existence of
newly discovered evidence.” Section 46-21-102(2), MCA; Sanchez v. State, 2004 MT 9,
¶ 10,
319 Mont. 226,
86 P.3d 1.
¶22 We have determined, however, that the 1997 amendments apply only to those
convictions that became final 12 months before the effective date of April 24, 1997.
Hawkins v. Mahoney,
1999 MT 82, ¶ 10,
294 Mont. 124,
979 P.2d 697; State v. Charlo,
2000
MT 192, ¶ 11,
300 Mont. 435,
4 P.3d 1201; State v. Whitehorn,
2002 MT 54, ¶ 44,
309
Mont. 63,
50 P.3d 121. We must evaluate the timeliness of Beach’s petition pursuant to the
pre-1997 amendments. Hawkins, ¶ 10.
¶23 The pre-1997 amendments allowed a petition for relief to be filed at any time within
five years of the date of conviction. Section 46-21-102, MCA (1995). The pre-1997
amendments contained no statutory exception. We recognized a limited exception to the
five-year statute of limitations when strict enforcement would result in a fundamental
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miscarriage of justice. State v. Redcrow, 1999 MT 95, ¶ 33,
294 Mont. 252,
980 P.2d 622;
State v. Pope,
2003 MT 330, ¶¶ 58-68,
318 Mont. 383,
80 P.3d 1232.
¶24 Beach’s conviction became final in 1984. Beach filed his latest petition on January
18, 2008. Beach has filed his petition well beyond the five-year statutory limitation. In fact,
this Court determined that Beach had filed his first petition for post-conviction relief in 1995
well after the statutory five-year limitations period had expired. Beach,
275 Mont. at 375,
913 P.2d at 625. Beach may escape the five-year statute of limitations only if he can satisfy
the fundamental miscarriage of justice exception. Redcrow, ¶ 33. Beach must rely upon the
fact that his allegedly newly discovered evidence satisfies the fundamental miscarriage of
justice exception.
¶25 Beach’s 1995 petition, of course, failed to allege newly discovered evidence. Beach,
275 Mont. at 375,
913 P.2d at 625. The State challenges whether Beach’s newly discovered
evidence provides anything “new” and that otherwise was not available to Beach at the time
that he filed his first petition in 1995. The District Court held that the alleged newly
discovered evidence proffered by Beach lacked a demonstration of actual innocence to
support the fundamental miscarriage of justice exception. The court failed to discuss,
however, the legal standard that it had applied.
¶26 The court’s only reasoning as to why it denied Beach’s petition relied on the
prosecutor’s actions in thoroughly reviewing the evidence and re-interviewing witnesses.
The court relied upon the prosecutor’s moral and ethical obligation to determine whether
Beach was “truly innocent.” Our system of justice depends on an independent judiciary
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undertaking an independent evaluation of the arguments and claims presented by the parties
before a court. The judiciary cannot abdicate its responsibility to undertake an independent
evaluation based upon the court’s deference to the State’s perceived adherence to moral or
ethical obligations.
¶27 We only can presume that the court agreed with the State’s argument that Beach had
failed to establish his “actual innocence” under the fundamental miscarriage of justice
exception. The State argued that Beach had failed to establish a “miscarriage of justice”
under the analysis suggested in Schlup v. Delo, 513 U.S. 298, 327,
115 S. Ct. 851, 867
(1995). We touched upon the miscarriage of justice standard in Redcrow and Pope.
¶28 In Redcrow, we agreed with the district court that Redcrow had not timely filed her
petition for postconviction relief as required by § 46-21-102, MCA. Redcrow, ¶ 29. We
further agreed that a “fundamental miscarriage of justice” triggered the limited exception to
the five-year statute of limitations. Redcrow, ¶ 31. This Court noted that it never had
defined clearly the scope of the “fundamental miscarriage of justice” exception and looked
for guidance from Schlup. Redcrow, ¶ 33.
¶29 The Court in Schlup excused a procedural default when the petitioner showed that “a
constitutional violation has probably resulted in the conviction of one who is actually
innocent.” Schlup,
513 U.S. at 327,
115 S. Ct. at 867. Schlup defines “actually innocent” as
not merely a showing that a reasonable doubt exists in light of the new evidence, but rather
that “no reasonable juror would have found the defendant guilty.” Schlup,
513 U.S. at 329,
115 S. Ct. at 868. The Court in Schlup emphasized that it was “not the district court's
8
independent judgment as to whether reasonable doubt exists that the standard addresses.”
Schlup, 513 U.S. at 329,
115 S. Ct. at 868. The Court instead explained that the standard
requires the district court “to make a probabilistic determination about what reasonable,
properly instructed jurors would do.” Schlup,
513 U.S. at 329,
115 S. Ct. at 868.
¶30 The Court focused on the word “reasonable” in its formulation of the standard. The
Court presumed that a “reasonable juror would consider fairly all of the evidence presented”
and that such a reasonable juror “would conscientiously obey the instructions of the trial
court requiring proof beyond a reasonable doubt.” Schlup,
513 U.S. at 329,
115 S. Ct. at
868. Thus, under the Schlup standard, a party seeking to meet the threshold requirement must
persuade the district court that, “in light of the new evidence, no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable doubt.” Schlup,
513 U.S. at 329,
115 S. Ct. at 868.
¶31 The Court in Redcrow recognized that the fundamental miscarriage of justice
exception concerns actual, or substantive innocence, rather than legal, or procedural
innocence. Redcrow, ¶ 33. The U.S. Supreme Court recognized this distinction in Sawyer v.
Whitley,
505 U.S. 333,
112 S. Ct. 2514 (1992). The Court distinguished between “actual
innocence” – the defendant’s claim that he was innocent of the crime charged – and “legal
innocence” claims involving allegations of procedural error or abuse. Sawyer,
505 U.S. at
339,
112 S. Ct. at 2519. The Court recognized that an interplay between “actual” and “legal”
innocence claims could result in a petition for post-conviction relief falling within the
“fundamental miscarriage of justice” exception to the general rule of res judicata. Sawyer,
9
505 U.S. at 339,
112 S. Ct. at 2518. The Court held that a showing of “actual innocence”
required the petitioner to show by clear and convincing evidence that, but for a constitutional
error, no reasonable juror would have found the petitioner guilty. Sawyer,
505 U.S. at 344,
112 S. Ct. at 2521.
¶32 This Court in Redcrow ultimately settled on the principle that a “fundamental
miscarriage of justice arises only when a jury could find, in light of new evidence, that the
defendant is actually innocent of the crime.” Redcrow, ¶ 37. The Court rejected Redcrow’s
claim of actual innocence, however, in light of the fact that she had confessed to law
enforcement that she had stabbed the victim and she had admitted to another jail inmate that
she had killed the victim. Redcrow, ¶ 37. None of her claims of alleged ineffective
assistance of counsel implicated the confession or the admission. Redcrow, ¶ 37. Redcrow
failed to convince the Court that she could meet the standard of “actual innocence.”
Redcrow, ¶ 37.
¶33 The Court in Pope actually recognized a miscarriage of justice exception. Pope had
submitted completed DNA evidence for the purpose of passing through the Schlup “actual
innocence” gateway. Pope, ¶ 56. Pope also alleged constitutional violations associated with
his trial. Pope, ¶ 38. The trial court determined that Pope had not proven sufficient facts to
overcome the five-year statute of limitations. As a result, the trial court concluded that the
five-year limitation contained in § 46-21-102, MCA, precluded it from considering Pope’s
alleged constitutional violations in his petition for post-conviction relief. Pope, ¶ 34.
10
¶34 This Court reversed. The fact that Pope had not presented the DNA evidence to the
jury because it had not been available at the time of trial allowed Pope to pass through the
Schlup actual innocence gateway. Pope, ¶ 56. Once having passed through the actual
innocence gateway, the Court allowed Pope to pursue relief for his alleged constitutional
violations through a petition for post-conviction relief that he had filed beyond the five-year
limitation specified in § 46-21-102, MCA. Pope, ¶ 68. The State did not contest the fact that
errors at Pope’s trial rendered his conviction constitutionally infirm. Pope, ¶ 68.
¶35 This concession obviated the need to evaluate whether Pope’s newly discovered
evidence demonstrated his substantive actual innocence. The Court determined that the
procedural errors at Pope’s trial combined with his newly claimed evidence to establish a
clear miscarriage of justice. Pope, ¶ 69. This Court did not analyze Pope’s substantive
innocence claims in light of the State’s admission to the procedural errors at his trial. The
Court vacated Pope’s conviction and remanded the matter for a new trial. Pope, ¶ 70.
¶36 Beach’s current petition relies on the fact that his newly discovered evidence
establishes his actual innocence. Similar to the petitioner in Pope, Beach argues that this
newly discovered evidence allows him to pass through the Schlup gateway. Pope, ¶ 69.
Unlike the petitioner in Pope, however, Beach relies on this same newly discovered evidence
to prove his actual innocence. This distinction raises the issue of how the District Court
should evaluate Beach’s alleged newly discovered evidence.
¶37 The Court had occasion in State v. Clark, 2005 MT 330, ¶ 34,
330 Mont. 8,
125 P.3d
1099, to expand upon how a trial court should evaluate claims of newly discovered evidence
11
in a case brought on direct appeal. The Court reasoned that the trial court must consider
what impact, looking prospectively at a new trial with a new jury, that this new evidence
may have on that new jury. Clark, ¶ 36. This framework guides a court in analyzing claims
of newly discovered evidence.
¶38 To prevail on a motion for a new trial grounded on newly discovered evidence, the
defendant must satisfy the following test:
(1) the evidence must have been discovered since the defendant’s trial;
(2) the failure to discover the evidence sooner must not be the result of a lack
of diligence on the defendant’s part;
(3) the evidence must be material to the issues at trial;
(4) the evidence must be neither cumulative nor merely impeaching; and
(5) the evidence must indicate that a new trial has a reasonable probability of
resulting in a different outcome.
Clark, ¶ 34.
¶39 The fifth element presents the most likely crux of any district court’s evaluation of
new trial motions based on newly discovered evidence. Clark, ¶ 36. The “reasonable
probability” standard leaves it to the trial court to determine the weight and credibility of the
new evidence. Clark, ¶ 36. The “reasonable probability” standard also leaves it to the trial
court to consider what impact, looking prospectively at a new trial with a new jury, this new
evidence may have on that new jury. Clark, ¶ 36.
¶40 In Crosby v. State, 2006 MT 155,
332 Mont. 460,
139 P.3d 832, we adopted this five-
pronged test to evaluate claims of newly discovered evidence presented in a petition for post-
conviction relief. Crosby, ¶ 19; State v. Abe,
2001 MT 260, ¶ 10,
307 Mont. 233,
37 P.3d 77.
A key witness for the State recanted her testimony after the trial in Crosby. Crosby, ¶ 6. The
12
trial court erroneously concluded that a new trial would be granted only “when the trial judge
is satisfied the recantation is true.” Crosby, ¶ 21. We determined that the court erred when it
improperly placed itself in the role of fact-finder. Crosby, ¶ 21.
¶41 The District Court’s reliance in this case on the prosecutor’s moral and ethical
obligation improperly placed the prosecutor in the role of fact-finder. The court failed to
analyze the truthfulness of the testimony. As noted in Crosby, once a petitioner who alleges
newly discovered evidence has satisfied the five Clark factors, the trial court must leave
determination of whether actually to believe the newly discovered evidence to the fact-finder
on retrial. Crosby, ¶ 21. The trial court must analyze in the first instance, however, whether
a reasonable probability exists that the newly discovered evidence would change the
outcome at a new trial.
¶42 The Court in Crosby considered the petitioner’s untimely petition under the newly
discovered evidence exception in § 46-21-102(2), MCA. We must consider Beach’s petition
under the miscarriage of justice exception to the 1997 amendments. The State argues in its
brief, however, that this Court has imposed an “actual innocence” standard on both the
“newly discovered evidence” exception contained in the 1997 amendments to § 46-21-
102(2), MCA, and the “miscarriage of justice” exception discussed in Redcrow and related
cases. We agree with the State that both standards implicate “actual innocence,” as opposed
to “legal innocence.” This conclusion nevertheless fails to resolve the question of how the
court should evaluate the alleged newly discovered evidence in making its determination of
whether the petitioner has demonstrated “actual innocence.”
13
¶43 As the U.S. Supreme Court indicated in Sawyer and Schlup, the “actual innocence”
inquiry may involve the interplay of substantive and procedural innocence claims. Sawyer,
505 U.S. at 336,
112 S. Ct. at 2517; Schlup,
513 U.S. at 316,
115 S. Ct. at 861. This Court
recognized this nexus in Pope. Pope’s substantive innocence claim – the DNA evidence –
served as the vehicle that allowed Pope to navigate the “actual innocence” gateway. This
successful navigation, in turn, allowed Pope to bring his procedural innocence claims – the
alleged constitutional violations. Pope, ¶ 44. The State did not contest Pope’s allegations of
procedural error. As a result, the Court did not address the standards to be applied to
substantive, as opposed to procedural, innocence claims. Beach brings both substantive and
procedural claims in his petition for post-conviction relief. We must delineate the standard
that applies to each.
¶44 A petitioner predicates a substantive “actual innocence” claim on the assertion that he
did not commit the crime of which he has been convicted. Pope, ¶ 53. A purely substantive
claim warrants the application of an “extraordinarily high” standard of review. Schlup,
513
U.S. at 316,
115 S. Ct. at 861 (quoting Herrera v. Collins,
506 U.S. 390, 426,
113 S. Ct. 853,
874 (1993)). Beach’s petition contains both substantive and procedural innocence claims.
The higher standard of review would apply to Beach’s substantive claims if he successfully
has navigated the “procedural gateway.” Schlup,
513 U.S. at 316,
115 S. Ct. at 861. The
analysis for Beach’s substantive claims “must incorporate the understanding that proof
beyond a reasonable doubt marks the legal boundary between guilt and innocence.” Schlup,
513 U.S. at 328,
115 S. Ct. at 867-68. We conclude that Beach must show by clear and
14
convincing evidence that, but for a procedural error, no reasonable juror would have found
him guilty of the offense in order for him to prevail on his substantive innocence claim.
Schlup, 513 U.S. at 329,
115 S. Ct. at 868.
¶45 Beach’s procedural claims warrant the application of a different standard of proof.
Schlup,
513 U.S. at 324,
115 S. Ct. at 865. The standard of proof should reflect the “relative
importance attached to the ultimate decision.” Schlup,
513 U.S. at 325,
115 S. Ct. at 866
(citation omitted). A substantive innocence claim, if successful, results in the petitioner’s
release. By contrast, a successful procedural claim results in a new trial, and justifies a
different standard of proof. Schlup, 315 U.S. at 327,
115 S. Ct. at 867. The “reasonable
probability” standard outlined in Clark, ¶ 34, strikes a rough equivalence with the notion that
“a constitutional violation at trial has probably resulted in the conviction of one who is
‘actually innocent.’” Pope, ¶ 46. This “reasonable probability” standard also comports with
the Schlup standard that requires the petitioner to “establish, by a ‘fair probability,’ that the
‘trier of the facts would have entertained a reasonable doubt of his guilt.’” Schlup,
513 U.S.
at 322,
115 S. Ct. at 864 (citation omitted).
¶46 We recognize that Clark and Redcrow espouse forward looking tests that require a
court to evaluate what a jury would do in a new trial. By contrast, Schlup seemingly
contemplates a backward looking test that requires a court to assess how a reasonable jury
“would have voted” if it had possessed the benefit of the newly discovered evidence. We
nevertheless deem it appropriate under the facts of this case to have the District Court follow
a modified version of the Clark test that incorporates the Redcrow and Schlup standards to
15
reflect the fact that Beach must establish a miscarriage of justice in order to escape the
procedural bar.
¶47 The District Court first must evaluate whether the alleged new evidence presented by
Beach constitutes actual “new” evidence as envisioned by the standards set forth in Clark.
This initial evaluation first entails a review of whether the evidence has been discovered
since the defendant’s trial. Clark, ¶ 34. The court then must determine whether the failure to
discover the evidence sooner must not be the result of a lack of diligence on the defendant’s
part. Clark, ¶ 34. The alleged newly discovered evidence presented by the petitioner must
be material to the issues at trial and it must be neither cumulative nor merely impeaching.
Clark, ¶ 34.
¶48 Only once the petitioner has cleared these hurdles should the District Court address
the final question. The “reasonable probability” standard from Clark leaves it to the trial
court to consider what impact, looking prospectively at a new trial with a new jury, the new
evidence may have on that new jury. Clark, ¶ 36. We must modify this analysis to conform
to the miscarriage of justice standard. As discussed in Redcrow, the court must evaluate
whether a jury “could find, in light of the newly discovered evidence,” that Beach actually is
innocent of his crime. Redcrow, ¶ 37. The Schlup Court phrased the test as “no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513
U.S. at 329,
115 S. Ct. at 868. We determine that the standards explicated in Redcrow and
Schlup adhere most closely to the notion of a miscarriage of justice.
16
¶49 Whether the District Court properly denied Beach’s petition for post-conviction relief
without holding an evidentiary hearing.
¶50 Section 46-21-104(1)(c), MCA, sets forth the procedural requirements for a petition
for post-conviction relief. The State concedes that Beach has satisfied these requirements. A
district court has discretion whether to dismiss a petition for post-conviction relief without
holding an evidentiary hearing. Heath, ¶¶ 13, 16. The District Court nonetheless abused its
discretion by denying Beach’s petition without holding an evidentiary hearing in response to
the State’s concession and the factors discussed in this opinion.
CONCLUSION
¶51 We remain unable to glean from the District Court’s skeletal order its legal
conclusions and the facts on which it based those legal conclusions that led it to deny
Beach’s petition for post-conviction relief. The District Court’s order similarly leaves the
Court unable to determine whether it applied the correct legal standard in evaluating Beach’s
petition for post-conviction relief. As a result, we remand Beach’s petition to the District
Court to conduct an evidentiary hearing on the newly discovered evidence alleged in Beach’s
petition. The court must evaluate whether Beach’s alleged new evidence constitutes actual
new evidence. The court shall apply a modified version of the five-prong Clark test and the
Schlup “clear and convincing” standard to Beach’s alleged newly discovered evidence to
determine in the first instance whether Beach’s petition establishes that a “jury could find, in
light of the newly discovered evidence,” that Beach actually is innocent of his crime.
Redcrow, ¶ 37. The court must assess whether a jury, acting reasonably, would have voted
17
to find Beach guilty beyond a reasonable doubt. Schlup, 513 U.S. at 329,
115 S. Ct. at 868.
The District Court shall provide a written order of its decision in accordance with the legal
standards set forth in this opinion.
/S/ BRIAN MORRIS
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ JIM RICE
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