05/23/2017
DA 16-0506
Case Number: DA 16-0506
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 121N
JAMES CUDD, Sr.,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Big Horn, Cause No. DV 15-38
Honorable Blair Jones, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
James Cudd, Sr. (Self-Represented), Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Gerald “Jay” Harris, Big Horn County Attorney, Hardin, Montana
Submitted on Briefs: April 19, 2017
Decided: May 23, 2017
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath 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 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 James Cudd, Sr. (Cudd), appeals from a July 25, 2016 District Court order denying
his motion for postconviction relief. We affirm.
¶3 On May 17, 2011, the State charged Cudd by information with one count of Incest
and one count of Sexual Intercourse without Consent. Cudd was convicted of Sexual
Intercourse without Consent and sentenced to seventy years in the Montana State Prison.
Cudd appealed based on a denial of a challenge for cause of a juror. This Court affirmed
the conviction.1
¶4 On August 10, 2015, Cudd filed a petition for postconviction relief. Cudd raised
numerous arguments including prosecutorial misconduct, ineffective assistance of counsel,
and challenges to the jury instructions. The State filed its response and Cudd requested a
hearing. The District Court denied Cudd’s petition for postconviction relief on July 25,
2016, without a hearing. On August 29, 2016, Cudd filed an appeal with this Court,
characterizing it as a “petition for Writ of Habeas Corpus.” We have determined this matter
is properly characterized as an appeal of the denial of his postconviction relief petition.
1
State v. Cudd, 2014 MT 140,
375 Mont. 215,
326 P.3d 417.
2
¶5 This Court reviews a district court’s denial of a postconviction relief petition to
determine whether its findings of fact are clearly erroneous and whether its legal
conclusions are correct. Lacey v. State, 2017 MT 18, ¶ 13,
386 Mont. 204,
389 P.3d 233.
We review discretionary rulings in postconviction relief proceedings, including rulings
related to whether to hold an evidentiary hearing, for an abuse of discretion. Heath v. State,
2009 MT 7, ¶ 13,
348 Mont. 361,
202 P.3d 118. However, to the extent an evidentiary
ruling is based on a conclusion of law our review is plenary. State v. Bomar,
2008 MT 91,
¶ 14,
342 Mont. 281,
182 P.3d 47. Ineffective assistance of counsel claims constitute mixed
questions of law and fact for which our review is de novo. Whitlow v. State,
2008 MT 140,
¶ 9,
343 Mont. 90,
183 P.3d 861.
¶6 The District Court, in a comprehensive eleven-page order, denied the petition
concluding that Cudd failed to state a claim for relief. On appeal, Cudd asserts only that
trial “counsel failed in his professional-duty to interview and/or depose witnesses.” In an
attached notarized affidavit, he alleges a number of factual matters apparently related to
his underlying trial. Cudd has not raised other arguments he made in his postconviction
relief petition in District Court, and therefore has waived those issues.
¶7 Cudd claims two new issues on appeal asserting confrontation clause and due
process violations. This Court will not consider new issues raised for the first time on
appeal. Ellenburg v. Chase,
2004 MT 66, ¶ 14,
320 Mont. 315,
87 P.3d 473. Cudd had
the opportunity to raise these specific arguments previously and failed to do so; therefore,
we will not consider them in this appeal. Section 46-21-105(2), MCA. Moreover, Cudd
inserts new facts in the affidavit. This Court will not consider new facts not contained in
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the district court record. Kelly v. State, 2013 MT 21, ¶ 11,
368 Mont. 309,
300 P.3d 120;
M. R. App. P. 8(1).
¶8 A petition for postconviction relief must “clearly set forth” the alleged violations by
identifying all supporting facts for relief. Section 46-21-104(1), MCA. All grounds for
relief must be raised in the petition. Section 46-21-105(1)(a), MCA. A petition for
postconviction relief must be based on more than mere conclusory allegations. Kelly, ¶ 9;
Ellenburg, ¶ 16; State v. Wright,
2001 MT 282, ¶ 9,
307 Mont. 349,
42 P.3d 753.
¶9 The issues properly preserved before this Court are Cudd’s alleged Brady violations
and his ineffective assistance of counsel claim based on “failure to interview and/or depose
witnesses.”
¶10 In his affidavit on appeal, Cudd asserts that information he provided to child
protective services was withheld, violating Brady v. Maryland,
373 U.S. 83,
83 S. Ct. 1194.
Cudd provides only conclusory statements that he spoke with child protective services and
that the information was then purposely withheld from the court. The statement Cudd
claims was withheld was his own statement. Whether or not it was “suppressed,” his own
statement would not be a basis for a violation of Brady. The District Court did not err in
denying Cudd’s petition for postconviction relief.
¶11 Finally, Cudd argues that trial counsel was ineffective by failing to interview and/or
depose witnesses. This Court evaluates claims of ineffective assistance of counsel under
the test established in Strickland v. Washington,
466 U.S. 668,
104 S. Ct. 2052 (1984).
Whitlow, ¶ 10. First, the defendant must show that his attorney’s performance was deficient
by demonstrating that it fell below an objective standard of reasonableness. Whitlow, ¶ 14.
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Second, the defendant must show that his attorney’s deficient performance prejudiced the
defense. Whitlow, ¶ 10. A party alleging ineffective assistance of counsel in a petition for
postconviction relief must come forward with specific factual allegations that establish the
party is entitled to relief. Section 46-21-104, MCA; Herman v. State, 2006 MT 7, ¶ 44,
330 Mont. 267,
127 P.3d 422.
¶12 The District Court held that Cudd’s petition failed to articulate an argument as to
counsel’s specific failure to interview witnesses or provide facts or evidence sufficient to
support grounds for relief. Beyond unsupported statements, Cudd provided an excerpt of
a potential witness’s interview with police and listed the Montana Rules of Professional
Conduct as well as the Montana Public Defender Act in his petition. Cudd claimed trial
counsel fell below an objective standard of reasonableness because the potential witness’s
statements were exculpatory and would indeed have changed the outcome of the trial.
¶13 Claims asserted in petitions for postconviction relief must be based upon specific
facts and not mere conjecture. Section 46-21-104, MCA; Ellenburg, ¶ 16. Cudd must
show “what information would have been obtained from the interviews and whether such
information would have produced a different result.” Weaver v. State,
2005 MT 158,
¶ 21,
327 Mont. 441,
114 P.3d 1039. Cudd provides no specifics about what information
would have been obtained, if it would have been admissible, or that the missing interviews
prejudiced him in the outcome of the proceedings. Cudd has failed to sustain the burden
of proof to make a prima facie showing that he is entitled to relief regarding counsel’s
decision not to interview specific witnesses. The District Court’s conclusion that none of
the above facts tend to establish ineffective assistance of counsel was correct.
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¶14 The District Court’s order denying Cudd’s petition for postconviction relief was not
clearly erroneous and was based on correct conclusions of law.
¶15 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶16 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
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