                                                                                           August 23 2011


                                           DA 11-0012

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2011 MT 206N



ALLEN POTTER,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.


APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and For the County of Missoula, Cause No. DV 09-1426
                      Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Allen J. Potter (self-represented litigant), Shelby, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Jonathan M. Krauss,
                      Assistant Attorney General, Helena, Montana

                      Fred R. Van Valkenburg, Missoula County Attorney; Kirsten Pabst
                      LaCroix, Deputy County Attorney, Missoula, Montana


                                                    Submitted on Briefs: August 3, 2011

                                                                Decided: August 23, 2011


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.



¶1     Pursuant to Section I, Paragraph 3(d)(v), 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     Allen Potter filed a petition for postconviction relief and the District Court ordered

a response from the State, which moved to dismiss. After Potter responded to the State’s

motion, the District Court dismissed Potter’s petition without hearing. Potter appeals

from the District Court’s Opinion and Order, filed December 21, 2010, dismissing his

petition for postconviction relief. We affirm.

¶3     This Court reviews 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. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, 988 P.2d 299. The

petitioner has the burden to show by a preponderance of the evidence that the facts justify

relief. State v. Godfrey, 2009 MT 60, ¶ 13, 349 Mont. 335, 203 P.3d 834. Claims of

ineffective assistance of counsel must be grounded upon facts and not merely conclusory

allegations. State v. Finley, 2002 MT 288, ¶ 9, 312 Mont. 493, 59 P.3d 1132. A district

court may dismiss a petition for postconviction relief as a matter of law for failure to state

a claim, § 46-21-201(1)(a), MCA, and this Court reviews the decision to dismiss without


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a hearing for abuse of discretion. Herman v. State, 2006 MT 7, ¶ 13, 330 Mont. 267, 127

P.3d 422.

¶4     We have reviewed Potter’s contentions that his trial attorney provided ineffective

assistance of counsel and concur with the District Court’s conclusion that Potter failed to

demonstrate that his attorney’s performance was deficient, or that his attorney’s

performance prejudiced the defense. Potter contends that his attorney failed to pursue

evidence which would have caused the jury to determine that his victim did not suffer

serious bodily injury sufficient to support a conviction for aggravated assault. See §§ 45-

5-202 and 45-2-101(66), MCA. Potter’s victim was subjected to a vicious and prolonged

beating that left her hospitalized with multiple injuries. State v. Potter, 2008 MT 381, ¶¶

8-9, 31-34, 347 Mont. 38, 197 P.3d 471.

¶5     The District Court considered each of Potter’s allegations that he was entitled to

postconviction relief because his counsel was ineffective. The District Court “determined

that all of [Potter’s] claims fail to state a claim for relief, and should be dismissed

because they are either speculative, not founded in fact, or not supported by the record

before the Court.”

¶6     We agree with the District Court that Potter failed to meet his burden to

demonstrate by a preponderance of the evidence that his attorney was ineffective, or that

any of the attorney’s acts or omissions would have resulted in a different outcome. The

issues are clearly controlled by settled Montana law, and the District Court’s decision to

dismiss the petition was not clearly erroneous and was not an abuse of discretion.



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¶7   Affirmed.


                          /S/ MIKE McGRATH


We concur:

/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON




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