                                                                                              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.
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¶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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