TRACY K. ORCUTT,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Dawson, Cause No. DV 15-073
Honorable Richard A. Simonton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tracy K. Orcutt, Self-Represented, Glendive, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Oliva Norlin-Rieger, Dawson County Attorney, Glendive, Montana
Submitted on Briefs: August 24, 2016
Decided: October 11, 2016
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by unpublished opinion and shall not be cited and does not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 Tracy K. Orcutt, appearing pro se, appeals from an October 2015 order of the
Seventh Judicial District Court, Dawson County, denying his second Petition for
Post-Conviction Relief. We affirm.
¶3 In 2014, Orcutt pled nolo contendere to two felony drug charges: criminal
production or manufacture of dangerous drugs and criminal possession of dangerous
drugs with intent to distribute. He did not appeal. On November 3, 2014, Orcutt filed his
first petition for post-conviction relief, alleging ineffective assistance of counsel and a
myriad of errors within his conviction. The District Court dismissed the petition on
November 28, 2014, finding that the record and pleadings in the case showed,
conclusively, that Orcutt was not entitled to relief. In October 2015, Orcutt filed his
second petition for post-conviction relief, alleging substantially the same grounds for
relief and errors in his underlying conviction as he alleged in his first petition, and
alleging the existence of newly discovered evidence entitling him to relief. In October
2015, the District Court dismissed Orcutt’s second petition.
¶4 “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
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conclusions of law are correct.” Beach v. State,
. A district court must dismiss “a second or subsequent petition by a person who
has filed an original petition unless the second or subsequent petition raises grounds for
relief that could not reasonably have been raised in the original or an amended original
petition.” Section 46-21-105(1)(b), MCA.
¶5 After reviewing the petition, pleadings, and record in this case, we determine that
the grounds for relief upon which Orcutt relies reasonably could have been raised in his
first petition for post-conviction relief. In fact, a substantial number of the arguments he
now raises were raised in his first petition. Because Orcutt’s arguments in his second
petition for post-conviction relief were or could have been raised in his original petition,
the District Court did not err in dismissing the petition.
¶6 We note that the District Court stated in its order: “Having considered Orcutt’s
Amended Second Petition for Post-Conviction Relief, the relief requested is denied and
the Amended Second Petition is dismissed. Orcutt may not file another Petition for
Post-Conviction Relief.” While the evidentiary threshold may be heightened for second
or subsequent petitions for post-conviction relief, there is nothing in our statutory scheme
that categorically bars a petitioner from raising additional claims if adequate grounds for
relief should arise in the future. Therefore, we strike the portion of the District Court’s
order that precluded Orcutt from filing such a petition.
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for unpublished opinions. In the opinion of
this Court, this case presents a question controlled by settled law.
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¶8 Affirmed.
/S/ PATRICIA COTTER
We Concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
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