                                                                                           04/03/2018


                                      DA 16-0626
                                                                                       Case Number: DA 16-0626

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2018 MT 74N



JEREMY MacGREGOR,

          Petitioner and Appellant,

     v.

STATE OF MONTANA,

          Respondent and Appellee.



APPEAL FROM:       District Court of the First Judicial District,
                   In and For the County of Lewis And Clark, Cause No. BDV-2014-951
                   Honorable DeeAnn Cooney, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                   Jeremy Steven MacGregor, Self-Represented,

            For Appellee:

                   Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                   Assistant Attorney General, Helena, Montana

                   Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana


                                               Submitted on Briefs: January 31, 2018

                                                          Decided: April 3, 2018


Filed:

                   __________________________________________
                                     Clerk
Justice James Jeremiah Shea 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, 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     Jeremy Steven MacGregor (“MacGregor”) appeals the Order of the First Judicial

District Court, Lewis and Clark County, dismissing his petition for postconviction relief

(“PCR”). We affirm.

¶3     Following an incident on April 15, 2010, the State charged MacGregor with two

counts of attempted deliberate homicide for shooting his then-wife and live-in nanny.

MacGregor was initially represented by a public defender, but insisted on representing

himself. The District Court allowed him to proceed with a public defender as standby

counsel. On February 28, 2011, a jury convicted MacGregor of two counts of attempted

deliberate homicide in violation of § 45-5-102, MCA. The District Court sentenced

MacGregor to 100 years for each count, with the sentences to run concurrently.           The

District Court also restricted MacGregor’s parole eligibility for fifty years.

¶4     MacGregor appealed, arguing ineffective assistance of counsel (“IAC”). The Office

of Appellate Defender represented MacGregor on his direct appeal.                Due to his

dissatisfaction with appointed appellate counsel, however, MacGregor fired his appellate

counsel and proceeded pro se. MacGregor’s pro se appeal was rejected by this Court due

to his failure to comply with the Montana Rules of Appellate Procedure. MacGregor

requested new counsel, and this Court re-appointed appellate counsel from the Office of


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Appellate Defender. On October 15, 2013, this Court affirmed MacGregor’s convictions.

State v. MacGregor, 2013 MT 297, 372 Mont. 142, 311 P.3d 428.

¶5     MacGregor petitioned for rehearing, arguing that this Court overlooked certain

material facts. The petition was denied. On December 5, 2014, MacGregor filed a timely

PCR petition pursuant to § 46-21-102(1), MCA. The District Court evaluated the record

and PCR petition and did not require the State to respond. On October 6, 2016, the District

Court issued an Order denying MacGregor’s petition, holding:

       Upon review of Petitioner’s verified petition for postconviction relief and
       brief in support, this Court finds that MacGregor’s brief fails to prove by a
       preponderance of the evidence that he is entitled to relief. In challenging the
       effectiveness of his [appellate counsel], MacGregor relies largely on
       conclusory allegations and fails to establish the two-prongs of Strickland.

MacGregor appeals the denial.

¶6     We review a district court’s denial of a petition for postconviction relief to

determine whether the district court’s findings of fact are clearly erroneous and whether its

conclusions of law are correct. Haagenson v. State, 2014 MT 223, ¶ 8, 376 Mont. 239,

332 P.3d 268; State v. Jenkins, 2001 MT 79, ¶ 9, 305 Mont. 95, 23 P.3d 201. We review

discretionary rulings in PCR proceedings, including rulings relating to whether to hold an

evidentiary hearing, for an abuse of discretion. Hamilton v. State, 2010 MT 25, ¶ 7, 355

Mont. 133, 226 P.3d 588. We review claims of ineffective assistance of counsel de novo.

State v. Cobell, 2004 MT 46, ¶ 8, 320 Mont. 122, 86 P.3d 20.

¶7     A PCR petition may not be based upon grounds for relief that were or could

reasonably have been raised on direct appeal. Section 46-21-105(2), MCA; Rukes v. State,

2013 MT 56, ¶ 8, 369 Mont. 215, 297 P.3d 1195. The petition must identify all facts that

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support the claims for relief. Section 46-21-104(1), MCA; Kelly v. State, 2013 MT 21, ¶ 9,

368 Mont. 309, 300 P.3d 120. The petitioner has the burden to show by a preponderance

of the evidence that the facts justify relief. Griffin v. State, 2003 MT 267, ¶ 10, 317 Mont.

457, 77 P.3d 545; Ellenburg v. Chase, 2004 MT 66, ¶ 12, 320 Mont. 315, 87 P.3d 473

(citing § 46-21-104, MCA); Cobell, ¶ 14 (stating that a petitioner seeking to reverse a

district court’s denial of a PCR petition, “bears a heavy burden. . . .”). If a district court

determines that “the petition and the files and records of the case conclusively show that

the petitioner is not entitled to relief,” the district court may dismiss the proceedings

without requiring a response by the State or without holding an evidentiary hearing.

Sartain v. State, 2012 MT 164, ¶¶ 42–44, 365 Mont. 483, 285 P.3d 407 (quoting

§ 46-21-202, MCA).

¶8     In assessing claims of ineffective assistance of counsel, we apply the two-pronged

test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Whitlow

v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. The first prong of the

Strickland test requires the defendant to show that his counsel’s performance was deficient.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To demonstrate that counsel’s performance

was deficient, the defendant must prove that counsel’s performance fell below an objective

standard of reasonableness. Whitlow, ¶ 10; Bishop v. State, 254 Mont. 100, 103, 835 P.2d

732, 734 (1992). The second prong of the Strickland test requires the defendant to prove

that his counsel’s deficient performance prejudiced the defense. Whitlow, ¶ 10; Strickland,

466 U.S. at 687, 104 S. Ct. at 2064. To show prejudice, the defendant alleging ineffective

assistance of counsel must demonstrate a reasonable probability that, but for counsel’s


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errors, he would not have pled guilty and would have insisted on going to trial. State v.

Thee, 2001 MT 294, ¶ 9, 307 Mont. 450, 37 P.3d 741, overruled on other grounds by

Whitlow, ¶¶ 13, 18. The Strickland test applies to claims of IAC against both trial and

appellate counsel. Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60, 973 P.2d 233.

¶9     Appellate counsel need not raise every nonfrivolous or colorable issue requested by

his client. Jones v. Barnes, 463 U.S. 745, 750–54, 103 S. Ct. 3308, 3312–14 (1983); Weller

v. State, 2009 Mont. Dist. LEXIS 414, ¶ 19. Effective appellate counsel must apply

professional judgment and raise “only those arguments most likely to succeed.” Davila v.

Davis, __U.S. __, 137 S. Ct. 2058, 2067 (2017); see also Smith v. Murray, 477 U.S. 527,

536, 106 S. Ct. 2661, 2667 (1986). “Declining to raise a claim on appeal . . . is not deficient

performance unless that claim was plainly stronger than those actually presented to the

appellate court.” Davila, __U.S. at __, 137 S. Ct. at 2067.

¶10    MacGregor argues that appellate counsel declined to file a motion for an over-length

brief as MacGregor requested, and instead met the brief requirements by omitting certain

arguments that MacGregor wanted to include. MacGregor argues these omissions resulted

in meritorious issues not being preserved on appeal, and the merits of these arguments are

evidenced by appellate counsel not filing an Anders brief.1           MacGregor makes the

following specific claims of IAC based on the arguments appellate counsel did not raise on

appeal: (1) MacGregor’s right to a fair trial before an impartial tribunal was violated; (2)



1
 When appellate counsel is unable to find any non-frivolous issues to raise on appeal, she
will file a brief advising the Court of her conclusion pursuant to Anders v. California, 386
U.S. 738, 87 S. Ct. 1396 (1967).

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MacGregor was entitled to be charged by preliminary hearing or grand jury indictment

instead of information; (3) collusion between the trial judge, law enforcement, and public

defender; (4) MacGregor’s right to counsel was violated when the District Court failed to

obtain an unequivocal waiver before designating his standby counsel as co-counsel;

(5) co-counsel, the District Court, and the State violated MacGregor’s right to compulsory

process by failing to secure the presence of a potential witness at trial; (6) the prosecutors

should have recused themselves after they acted as “witnesses” in his case by signing the

motion for leave to file information; and (7) the restitution order was illegal because the

presentence investigation (“PSI”) report was deficient.

¶11    The District Court analyzed each of MacGregor’s IAC claims and found them all to

be without merit. The District Court held:

       [Appellate counsel] [was] well within the bounds of professional judgment
       to decline certain requests from his client. . . . Given the strong presumption
       that [appellate counsel’s] conduct falls within the wide range of reasonable
       professional assistance, MacGregor’s argument fails to overcome the
       presumption that, under the circumstances, the challenged action (or
       inaction) could be considered sound appellate strategy.

The State also points out that to the extent the proposed appellate claims were not frivolous

and wholly without merit, MacGregor has not shown they are plainly stronger than the

claims of error that appellate counsel actually raised on appeal. We agree.

¶12    The claims appellate counsel declined to raise were not plainly stronger than those

actually presented to the appellate court. See Davila, __ U.S. at __, 137 S. Ct. at 2067.

Appellate counsel applied professional judgment and reasonably decided not to raise the

claims of error that MacGregor asserts should have been raised on direct appeal.



                                              6
MacGregor did not “overcome the presumption that his counsel acted in a reasonable,

professional manner.” See Sellner v. State, 2004 MT 205, ¶ 48, 322 Mont. 310, 95 P.3d

708. Because MacGregor fails to establish appellate counsel’s performance was deficient,

we decline to analyze whether MacGregor was prejudiced by appellate counsel’s decisions.

See Whitlow, ¶¶ 10–11 (holding “if an insufficient showing is made regarding one prong

of the test, there is no need to address the other prong.”); Strickland, 466 U.S. at 687, 104

S. Ct. at 2064. MacGregor has not met his burden to show that the District Court erred

when it denied and dismissed his claims of IAC regarding appellate counsel. See Cobell,

¶ 14. Additionally, MacGregor also has not demonstrated that “resolution of his claims

necessitated an evidentiary hearing.” See Sartain, ¶¶ 42–44.

¶13    The District Court did not err when it determined that MacGregor’s brief failed to

prove by a preponderance of the evidence that he is entitled to relief. MacGregor’s reliance

on conclusory allegations fails to establish the two-prongs of Strickland. We therefore

affirm the District Court’s dismissal of MacGregor’s PCR petition.

¶14    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. The District Court’s Conclusions of Law were correct, its

Findings of Fact were not clearly erroneous, and its ruling was not an abuse of discretion.

We affirm.


                                                  /S/ JAMES JEREMIAH SHEA



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We Concur:

/S/ JIM RICE
/S/ DIRK M. SANDEFUR
/S/ LAURIE McKINNON
/S/ BETH BAKER




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