                                                                                              03/10/2020


                                           DA 19-0087
                                                                                         Case Number: DA 19-0087

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2020 MT 57N



RUSSELL WAYNE BULLOCK,

               Petitioner and Appellant,

         v.

STATE OF MONTANA,

               Respondent and Appellee.


APPEAL FROM:           District Court of the Eighteenth Judicial District,
                       In and For the County of Gallatin, Cause No. DV 18-1206B
                       Honorable Rienne H. McElyea, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Russell Wayne Bullock, Self-represented, Shelby, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                       Attorney General, Helena, Montana

                       Marty Lambert, Gallatin County Attorney, Eric N. Kitzmiller; Deputy
                       County Attorney, Bozeman, Montana


                                                   Submitted on Briefs: February 12, 2020

                                                               Decided: March 10, 2020


Filed:

                                 cir-641.—if
                       __________________________________________
                                         Clerk
Justice Ingrid Gustafson 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    Petitioner and Appellant Russell Wayne Bullock (Bullock) appeals the Order

Dismissing Petition for Postconviction Relief issued by the Eighteenth Judicial District

Court, Gallatin County, on January 3, 2019. We affirm.

¶3    In February 2015, a jury found Bullock guilty of sexual intercourse without consent

and burglary. Bullock was sentenced on June 2, 2015, and filed his notice of appeal on

August 2, 2015. We affirmed his convictions on July 25, 2017, but remanded for the

District Court to strike the court information technology user surcharges and impose only

one $10 user surcharge. State v. Bullock, 2017 MT 182, ¶ 38, 388 Mont. 194, 398 P.3d

881. One month later, on August 25, 2017, the District Court issued an Order Amending

Sentence to correct the surcharge. On July 2, 2018, Bullock filed a document entitled

“Defendants Brief in Support of His Petition for Post-Conviction Relief,” as well as a

Motion for Appointment of Counsel. As Bullock failed to file an accompanying proper

petition for postconviction relief, on August 2, 2018, the District Court denied the relief

requested in his Brief in Support as well as his Motion for Appointment of Counsel. On

October 23, 2018, Bullock signed and dated his Petition for Postconviction Relief. This
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Petition was received by the Clerk of Court on October 29, 2018,1 one year and sixty-five

days after the District Court amended his judgment.

¶4        We review the denial of a petition for postconviction relief to determine whether the

court’s findings of fact are clearly erroneous and if its conclusions of law are correct. Lacey

v. State, 2017 MT 18, ¶ 13, 386 Mont. 204, 389 P.3d 233.

¶5        Section 46-21-102, MCA, addresses the timeliness of petitions for postconviction

relief:

          (1) Except as provided in subsection (2), a petition for the relief referred to
          in 46-21-101 may be filed at any time within 1 year of the date that the
          conviction becomes final. A conviction becomes final for purposes of this
          chapter when:
                  (a) the time for appeal to the Montana supreme court expires;
                  (b) if an appeal is taken to the Montana supreme court, the time for
          petitioning the United States supreme court for review expires; or
                  (c) if review is sought in the United States supreme court, on the date
          that that court issues its final order in the case.

           (2) A claim that alleges the existence of newly discovered evidence that, if
          proved and viewed in light of the evidence as a whole would establish that
          the petitioner did not engage in the criminal conduct for which the petitioner
          was convicted, may be raised in a petition filed within 1 year of the date on
          which the conviction becomes final or the date on which the petitioner
          discovers, or reasonably should have discovered, the existence of the
          evidence, whichever is later.




1
 The Clerk of Court initiated a new postconviction case, DV 18-1206, for the petition and related
postconviction documents but did not file the petition until November 16, 2018, the date the
District Court approved Bullock’s request to proceed in forma pauperis. For purposes of our
analysis, we consider Bullock’s petition for postconviction relief to have been filed on October 29,
2018, when it was received by the Clerk of Court.
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An appeal to the United States Supreme Court must be taken within 90 days after the entry

of this Court’s opinion. Sup. Ct. R. 13(1), (3); Raugust v. State, 2003 MT 367, ¶ 15, 319

Mont. 97, 82 P.3d 890. As such, a conviction normally becomes final 90 days after this

Court issues its opinion. However, when an amended judgment is issued, as is the case

here, finality is calculated from the date of the amended judgment. State v. Garner, 2014

MT 312, ¶ 24, 377 Mont. 173, 339 P.3d 1. Bullock’s conviction became final on

October 24, 2017—60 days after the Order Amending Sentence of August 24, 2017. Thus,

pursuant to § 46-21-102, MCA, Bullock’s time to file a petition for postconviction relief

expired on October 24, 2018.

¶6     The State argues Bullock’s petition for postconviction relief was untimely as it was

not filed until October 29, 2018—5 days late. Bullock, too, recognizes his petition for

postconviction was not timely but advocates we should honor and uphold “the post box

rule,” which he asserts should extend the time in which to file by 3 days.

¶7     In Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379 (1988), the U.S. Supreme Court

determined, for purposes of federal filings submitted by incarcerated inmates, the

document is deemed filed when the inmate delivers the document to prison authorities for

mailing to the clerk of court. We have never applied this rule, known as the prison mailbox

rule, to documents filed in state court. By statute, Bullock had a full year to file for

postconviction relief and did not demonstrate any impediments to meeting this deadline.

Further, the prison mailbox rule is inconsistent with the rules of civil procedure, Bullock

has not demonstrated any compelling reason to adopt it under the circumstances of this
                                             4
case, and we decline to do so now. The District Court did not err when it dismissed

Bullock’s petition as untimely.       As Bullock’s petition was untimely, the record

conclusively established Bullock was not entitled to relief and there was no basis for the

District Court to even consider holding a hearing. See § 46-21-201(1)(a), MCA. Under

the circumstances here, the District Court did not err in failing to hold a hearing on

Bullock’s petition for postconviction relief.

¶8     Bullock also asserts the District Court was “bound by law [and] had to give” him an

extension of time to file his postconviction petition. We do not agree. The time-bar

established in § 46-21-102, MCA, “constitutes a rigid, categorical time prescription that

governs post-conviction petitions.” Davis v. State, 2008 MT 226, ¶ 23, 334 Mont. 300,

187 P.3d 654. The District Court properly applied the time limits set forth in § 46-21-102,

MCA.

¶9     Finally, Bullock asserts the justices of this Court must recuse themselves “as they

have previously sat on Bullock’s direct appeal . . . Which now makes the Supreme courts

Justice’s bias or prejudice towards Bullock[.]” Again, we disagree. While bias or prejudice

against a party would warrant disqualification pursuant to M. C. Jud. Cond. 2.12(A)(1),

previously ruling unfavorably to a litigant on a prior appeal does not establish bias or

prejudice towards a litigant. Bullock has failed to demonstrate any personal bias or

prejudice of any justice on this Court towards him warranting recusal.

¶10    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
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Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶11    Affirmed.


                                                 /S/ INGRID GUSTAFSON

We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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