                                                                                             08/16/2016


                                          DA 16-0035
                                                                                         Case Number: DA 16-0035

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 197



KAL C. KENFIELD,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Twelfth Judicial District,
                       In and For the County of Liberty, Cause No. DV-12-12
                       Honorable Jon A. Oldenburg, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Kal C. Kenfield (Self-Represented), Shelby, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Jon Bennion, Deputy
                       Attorney General, Helena, Montana

                       Hugh B. Brown, Liberty County Attorney, Chester, Montana



                                                   Submitted on Briefs: June 15, 2016

                                                              Decided: August 16, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1    Kal Kenfield appeals the order of the Montana Twelfth Judicial District, Liberty

County, dismissing his third petition for postconviction relief as untimely, and for the

failure to meet his burden under the Montana postconviction relief statutes. We affirm.

                                        ISSUES

¶2    Kenfield raises several issues on appeal, which we restate as follows:

      1. Whether the District Court erred by dismissing Kenfield’s newly discovered
      evidence claim.

      2. Whether the criminal charging process used for Kenfield was consistent with
      the 1972 Montana Constitution and Montana statutes.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    In September 2008, a jury convicted Kenfield of one count of attempted deliberate

homicide for engaging in a drive-by shooting at the Liberty County Sheriff's Office in

Chester, Montana. The incident involved shots that were fired in the direction of the

sheriff’s dispatcher seated at her desk. Additionally, a jury convicted Kenfield of three

counts of felony criminal mischief and six counts of misdemeanor criminal mischief for

shooting at and damaging nine businesses in Chester.

¶4    Following his convictions, Kenfield filed a petition for postconviction relief

alleging ineffective assistance of counsel (IAC) by his trial counsel. In the petition,

Kenfield asserted numerous instances of his trial counsel’s shortcomings, including

alleged failures regarding the analysis of the crime scene. The IAC claim in Kenfield’s

original petition centered around his trial counsel’s decision to challenge the State’s

expert and his analysis of the bullet-ridden crime scene on cross examination rather than

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use his own investigator or perform tests for direct examination.            Kenfield also

challenged his counsel’s decision not to use the defense’s expert analysis of surveillance

video of the crime scene and only cross-examine the State’s expert on the video. The

District Court held a hearing on Kenfield’s petition and issued a detailed order denying

Kenfield relief. In the order, the District Court concluded that Kenfield’s defense counsel

did not render IAC. The court determined that counsel provided an adequate defense and

chose to limit the defense’s expert analysis in part because his expert would not look as

qualified as the State’s. The court ultimately concluded that defense counsel’s decisions

were strategic, after hearing the State’s expert and considering the evidence in the record.

Kenfield appealed the decision and we affirmed the District Court on appeal. State v.

Kenfield, 2011 MT 150N, 2011 Mont. LEXIS 187 (Kenfield I). Kenfield later filed a

second petition for postconviction relief, alleging IAC based upon his trial counsel’s

suspension from the practice of law, which was unrelated to Kenfield’s case. This Court

again affirmed the District Court’s dismissal of his second petition. Kenfield v. State,

2014 MT 172N, 2014 Mont. LEXIS 401 (Kenfield II).

¶5     Kenfield filed a third petition for postconviction relief on November 4, 2015.

Prior to filing the third petition, Kenfield commissioned and paid for a “new” analysis of

the crime scene, which he now claims qualifies as newly discovered evidence. Skylark

Technologies, the same business that analyzed Kenfield’s trial evidence, conducted a

reconstruction of the crime scene utilizing the truck Kenfield drove the morning of the

shooting. Skylark analyzed three of the ten shots fired at the sheriff’s office based on the

trajectory calculations originally provided by the Department of Justice’s report on the

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incident. The Department of Justice’s report was available at trial, and was created at

Kenfield’s trial counsel’s request.     Kenfield argues that the new truck analysis

demonstrates his actual innocence—that it was not possible that Kenfield fired the bullets

from his vehicle based upon the angle of the shots. The “new” evidence also included an

analysis by Skylark of the sheriff’s department’s surveillance footage and time records,

which Kenfield argues further supports his theory of actual innocence.

¶6    The District Court reviewed the petition and found that Kenfield’s new

independent crime scene analysis did not constitute newly discovered evidence that

would allow a subsequent petition. The court reasoned that Kenfield knew about alleged

problems with the State’s crime scene analysis prior to trial, or at least by the time he

filed his first postconviction relief petition where he raised IAC based upon the same

reasoning. Ultimately, the court determined that under § 46-21-102(2), MCA, Kenfield’s

new analysis did not constitute “newly discovered evidence.”             Further, the court

determined that Kenfield was barred from asserting IAC claims in his third petition

pursuant to § 46-21-105(2), MCA. Finally, the District Court found that Kenfield’s

constitutional claim lacked merit because it was based on the 1889 Montana Constitution

and that the process for filing the Information was legally sound. Under this reasoning,

the District Court dismissed the petition on November 18, 2015.

                              STANDARD OF REVIEW

¶7    We review a district court’s denial of postconviction relief to determine if the

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

Stock v. State, 2014 MT 46, ¶ 9, 374 Mont. 80, 318 P.3d 1053.

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                                       DISCUSSION

¶8     1. Whether the District Court erred by dismissing Kenfield’s newly discovered
       evidence claim.

¶9     Kenfield argues in his third petition for postconviction relief that the new crime

scene analysis he commissioned, seven years after the shooting, demonstrates that he

received IAC when his attorney failed to conduct a reasonable investigation of the case.

This petition is untimely, thus Kenfield seeks to avoid the procedural time bar set forth

under the postconviction relief statutes by arguing that he has “newly discovered

evidence” of actual innocence that permits review of the IAC claim. The State responds

that Kenfield has filed no new relevant grounds for relief in his petition and that all of his

claims have previously been raised or could reasonably have been raised on direct appeal.

¶10    Postconviction remedies are governed by specific statutes. Section 46-21-102(2),

MCA, provides:

       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.

(Emphasis added). Additionally, because Kenfield has filed two previous petitions for

postconviction relief, § 46-21-105, MCA, applies. It provides:

       Amendment of petition – waiver of grounds for relief.

       (1) (a) All grounds for relief claimed by a petitioner under 46-21-101 must
       be raised in the original or amended original petition. The original petition
       may be amended only once. At the request of the state or on its own
       motion, the court shall set a deadline for the filing of an amended original

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       petition. If a hearing will be held, the deadline must be reasonably in
       advance of the hearing but may not be less than 30 days prior to the date of
       the hearing.
              (b) The court shall 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.
              (2) When a petitioner has been afforded the opportunity for a direct
       appeal of the petitioner’s conviction, grounds for relief that were or could
       reasonably have been raised on direct appeal may not be raised, considered,
       or decided in a proceeding brought under this chapter. Ineffectiveness or
       incompetence of counsel in proceedings on an original or an amended
       original petition under this part may not be raised in a second or
       subsequent petition under this part.
              (3) For purposes of this section, “grounds for relief” includes all
       legal and factual issues that were or could have been raised in support of
       the petitioner’s claim for relief.

Section 46-21-105, MCA, (emphasis added).

¶11    Kenfield’s current petition is subject to dismissal under § 46-21-105(1)(b), MCA,

as a second or subsequent petition, unless he raises new grounds for relief that could not

have reasonably been raised in his prior two petitions.      Kenfield’s first and second

petitions demonstrate that he has already raised the claims he now raises in this third

petition. Because Kenfield’s claims of IAC and flawed crime scene analysis were raised

in the previous petitions, and his remaining claim could have been raised in the original

petition, the petition must be dismissed under statute. Sections 46-21-105(1)(b), (2),

MCA.

¶12    Kenfield further claims that his current petition is timely because he possesses

“newly discovered evidence” of actual innocence under § 46-21-102(2), MCA.

However, as the District Court correctly concluded, Kenfield clearly knew about the

alleged problems with the crime scene analysis because he addressed the same issues in

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his original petition, which was affirmed by this Court. Kenfield I, ¶¶ 5-6. Because he

has previously presented the evidence, Kenfield’s “new” independent analysis of the

shooting evidence is not “newly discovered evidence.”

¶13    The only “new” evidence presented by Kenfield is an eleven-page report created

by Skylark that analyzes the bullet trajectories. The analysis evaluates the trajectories of

three of the ten bullets fired at the sheriff’s office during the incident using Kenfield’s

truck to measure the trajectories. The report does not draw out the premise of the

analysis, but Kenfield advances the same argument that he made in his original petition

for postconviction relief—that the Department of Justice used a truck not representative

of his truck. The truck used in the original reconstruction sat lower than Kenfield’s truck;

thus, Kenfield posits, because his truck sits higher there is no way the shots could have

been fired from his truck. Skylark concluded that the shot positions, when traced back to

Kenfield’s truck, are consistently lower than the rear window, and close to the height of

the side window of the truck. Kenfield argues this is evidence of actual innocence.

¶14    Kenfield’s “newly discovered” evidence analyzes only three of the bullets fired on

the evening of the incident, but fails to provide an analysis of significant evidence against

Kenfield, including the seven additional shots fired at the sheriff’s office. There is no

evidence of actual innocence regarding Kenfield’s convictions of the misdemeanor and

felony criminal mischief charges pertaining to the other shots fired that night. Those

shots include the bullets that hit and damaged several businesses in Chester, including

The Roadhouse, Sugar Shack, Moodie Implement, Cenex Harvest States, Fraser Oil,

Tiber Tractor, and The Grand Bar.         Section 46-21-102(2), MCA, regarding newly

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discovered evidence includes a qualifier that new evidence may be raised 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 . . . .” Given the

extent of his criminal conduct and convictions in the case, we conclude that a re-analysis

of three of the ten bullets fired does not overcome evidence of Kenfield’s guilt.

¶15    In addition, the new report is simply an additional analysis of the same evidence

used at trial and in Kenfield’s two previously denied petitions for postconviction relief.

Given the extent of the discussion of the crime scene analysis in the court record, there is

no question that the bullet trajectory issue is not newly discovered. Because the evidence

is not newly discovered, Kenfield’s petition does not meet the requirements set forth in

§ 46-21-102(2), MCA.

Schlup “Gateway” Claim

¶16    Kenfield’s remaining argument is a Schlup procedural claim, where under federal

law Kenfield argues that his new crime scene analysis evidence is sufficient to grant him

passage around state and federal statutory time bars, otherwise known as the “Schlup

gateway.” Schlup v. Delo, 513 U.S. 298, 316, 115 S. Ct. 851, 861 (1995). Kenfield seeks

to use Schlup to gain review of his IAC claim through the lens of his “new” independent

crime scene analysis.

¶17    “A Schlup procedural, or ‘gateway,’ innocence claim alleges that newly

discovered evidence demonstrates that ‘a constitutional violation has probably resulted’

in a wrongful conviction.” State v. Beach, 2013 MT 130, ¶ 14, 370 Mont. 163, 302 P.3d

47 (quoting Schlup, 513 U.S. at 327, 115 S. Ct. at 867). A Schlup claim accompanies an

                                             8
assertion of trial error, which in this case involves Kenfield’s IAC allegation that his

counsel failed to use a proper crime scene analysis at trial. Beach, ¶ 14 (citing Schlup,

513 U.S. 315-16, 115 S. Ct. at 861). To meet the Schlup standard of proof a petitioner

need only produce evidence that creates “sufficient doubt about his guilt to justify the

conclusion that his [criminal sanction] would be a miscarriage of justice unless his

conviction was the product of a fair trial.” Beach, ¶ 14 (citing Schlup, 513 U.S. at 316,

115 S. Ct. at 861-62) (emphasis in original). A Schlup gateway petitioner must “show

that it is ‘likely’ or ‘probable’ that ‘no reasonable jury’ would find him guilty.” Beach,

¶ 16. If the Schlup petitioner makes the required showing, the petitioner passes through

the “gateway” that entitles him to present his constitutional claims of trial error, despite

the procedural bars that would normally prohibit such claims. Beach, ¶¶ 14, 16. In

Beach, we noted that because this Court respects the finality of a verdict, the reviewing

court must determine whether the petitioner has supported his innocence claim “with new

reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence—that was not presented at trial.” Beach, ¶ 8

(citing Schlup, 513 U.S. at 324, 115 S. Ct. at 865).

¶18    The pitfall for Kenfield’s Schlup claim is that the evidence is not “new reliable

evidence . . . that was not presented at trial.” Beach, ¶ 8. As we noted above, the record

in this case is replete with similar evidence regarding the crime scene analysis at trial, on

Kenfield’s original postconviction relief petition with accompanying IAC claim, and

once again on his second petition for postconviction relief. Specifically, the evidence

that Kenfield brings forward on this third petition can be boiled down to the use of one

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different factor: Kenfield’s truck. The height of Kenfield’s truck versus the truck in the

“flawed” crime scene analysis allegedly demonstrates Kenfield could not possibly have

fired the shots from the truck. This is not newly discovered evidence. This same

evidence was reviewed and available for Kenfield at trial and his counsel strategically

chose not to use the information.

¶19    We concluded in Kenfield I that it was not IAC when Kenfield’s counsel chose to

rely on the cross examination of the State’s crime scene analysis at trial rather than

present an independent analysis of the data. Kenfield I, ¶ 6. We affirmed the District

Court’s conclusion that Kenfield’s defense counsel made a strategic decision, among

many, to hold back his expert in part to avoid the risk that the expert would not look as

qualified as the State’s expert. Regardless, the evidence contained in Kenfield’s current

analysis was available at trial and the “new” analysis presents nothing new. In the order

dismissing Kenfield’s third petition, the District Court concluded that this issue was

addressed in the original petition.   We agree.     We conclude that Kenfield has not

presented any evidence that can be considered new or different from what was available

at trial or what he has already presented in this case. Because he has failed to provide

new evidence, the Schlup gateway Kenfield seeks is not open for him to pass through.

Because it was previously addressed, and because the evidence that Kenfield presents is

not new, we affirm the District Court’s dismissal of the petition pursuant to § 46-21-105,

MCA.    We also conclude that Kenfield’s IAC-related claim similarly fails because

Kenfield previously raised it and the District Court properly dismissed the claim as

barred under § 46-21-105(2), MCA.

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¶20    2. Whether the criminal charging process used for Kenfield was consistent with
       the 1972 Montana Constitution and Montana statutes.

¶21    Kenfield argues that the charging process used in his criminal case was

unconstitutional because it violates the 1889 Montana Constitution. Petitioner fails to

recognize that the State of Montana adopted and ratified a new Constitution in 1972.

“Montana’s specific constitutional and statutory provisions define a district court’s

jurisdiction and provide for commencing a state prosecution.” State v. Montgomery,

2015 MT 151, ¶ 9, 379 Mont. 353, 350 P.3d 77 (citing Mont. Const. art. II, § 20(1) and

art. VII, § 4(1); §§ 3-5-301(1), -302(1)(a), and 46-11-101, MCA).           We have also

concluded that “‘[t]he district court has original jurisdiction in all criminal cases

amounting to felony . . . .’” Montgomery, ¶ 9 (quoting Mont. Const. art. VII, § 4(1)).

Accordingly, the District Court properly determined that Kenfield’s claims are not valid

or sustainable under the Constitution or laws of the State of Montana.

¶22    Additionally, the postconviction relief statutes require that the district court

dismiss a second or subsequent petition unless the petitioner 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; State v Osborne, 2005 MT 264, ¶ 14, 329 Mont. 95, 124

P.3d 1085. Kenfield’s claim could reasonably have been raised in his original petition.

We affirm the District Court’s dismissal of the claim as it was not an abuse of the court’s

discretion.




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                                    CONCLUSION

¶23   The District Court made proper factual findings regarding Kenfield’s third petition

for postconviction relief, and its conclusions of law are correct. Accordingly, we affirm

the District Court’s dismissal of Kenfield’s petition because he failed to present any

newly discovered evidence. We also affirm the District Court’s conclusion that the

criminal charging process used to charge and prosecute Kenfield was consistent with the

1972 Montana Constitution and Montana statutes.



                                                /S/ MICHAEL E WHEAT

We Concur:

/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ JIM RICE




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