                                                                                         July 9 2013


                                           DA 12-0658

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 181N



ALBERT ERNEST INSUA,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DV 05-11
                       Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Albert E. Insua, self-represented; Deer Lodge, Montana

                For Appellee:

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

                       William Fulbright, Ravalli County Attorney; Hamilton, Montana



                                                    Submitted on Briefs: June 12, 2013

                                                               Decided: July 9, 2013


Filed:

                       __________________________________________
                                         Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), 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     Appellant Albert E. Insua (Insua) appeals the order of the Fourth Judicial District

Court, Missoula County, that dismissed his petition for post-conviction relief. We affirm.

¶3     A jury found Insua guilty of sexual intercourse without consent and three counts of

sexual assault in 2000. We affirmed Insua’s conviction on appeal. State v. Insua, 2004 MT

14, 319 Mont. 254, 84 P.3d 11.

¶4     Insua timely filed a petition for post-conviction relief on December 20, 2004. The

district court denied Insua’s petition and we affirmed. Insua v. State, 2006 MT 288N, 335

Mont. 398, 149 P.3d 913. Insua also filed a petition for writ of habeas corpus. The district

court denied Insua’s petition for a writ. This Court affirmed. Insua v. State, 2009 MT 157N,

351 Mont. 549, 214 P.3d 788.

¶5     Insua now has filed a second petition for post-conviction relief. Insua argues in his

second petition that new evidence demonstrates his innocence. The District Court denied

Insua’s second petition on the basis that “these matters have been brought before this Court

on several occasions and remittiturs filed affirmed the Court’s rulings.” The District Court

added that it has no further remedy for Insua. Insua appeals.

¶6     Insua argues that new evidence of the rape examination conducted on the victim

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would demonstrate his innocence. He claims to have attempted multiple times during trial to

acquire this information. We review a district court’s denial of a petition for post-conviction

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

conclusions of law are correct. Sanchez v. State, 2012 MT 191, ¶ 12, 366 Mont. 132, 285

P.3d 540.

¶7     Section 46-21-105(1)(b), MCA, bars a second or subsequent petition that raises

grounds for relief that reasonably could have been raised in the original petition. Insua’s

second petition raises no new claim that could not have been raised in his first post-

conviction petition. We have determined to decide this case pursuant to Section I, Paragraph

3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions.

It is manifest on the face of the briefs and the record before us that the District Court

correctly applied the procedural bar to Insua’s claim.

¶8     Affirmed.

                                           /S/ BRIAN MORRIS


We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




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