                                                                                              12/05/2017


                                           DA 16-0582
                                                                                         Case Number: DA 16-0582

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 301N



ERIN CLYDE BULLMAN,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DV-10-730(C)
                       Honorable Heidi J. Ulbricht, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Erin Clyde Bullman, Self-Represented, Shelby, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                       Attorney General, Helena, Montana

                       Edward J. Corrigan, Flathead County Attorney, David W. Randall, Deputy
                       County Attorney, Kalispell, Montana



                                                   Submitted on Briefs: September 27, 2017

                                                              Decided: December 5, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Michael E Wheat 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     Erin Clyde Bullman (Bullman) appeals from a September 6, 2016 District Court

order denying his petition for postconviction relief in which Bullman asserted ineffective

assistance of trial counsel (IAC), prosecutorial misconduct, failure of the prosecutor to

disclose material evidence, inadmissibility of other acts evidence, and improper exclusion

of his expert. We affirm.

¶3     In December 2006, the Honorable Katherine Curtis presided over Bullman’s jury

trial on the charges of incest and sexual assault against his stepdaughter, J.T. After the

prosecution rested, Bullman moved for a directed verdict on the incest charge asserting

the State failed to prove Bullman had been married to J.T.’s mother. The District Court

denied the motion. Bullman then argued Judge Curtis should not have decided the

directed verdict issue, because Judge Curtis had previously issued the default judgment

dissolving Bullman’s marriage to J.T.’s mother. Judge Curtis rejected the argument,

finding that the defense had not previously objected to her ruling on the directed verdict

and that substantial evidence had been admitted proving the marriage existed.




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¶4     Upon his conviction, Bullman appealed. He asserted insufficiency of the evidence

establishing common law marriage; improper jury instructions; failure of the court to

instruct the jury to disregard portions of testimony; and errors in sentencing, including

parole eligibility, conditions for parole, whether Bullman was sentenced more harshly

because he did not admit guilt, and restitution. The appeal did not raise any issue

concerning Judge Curtis’ alleged conflict of interest. In State v. Bullman, 2009 MT 37,

¶¶ 17-23, 349 Mont. 228, 203 P.3d 768 (Bullman I), we affirmed Bullman’s conviction,

but reversed to correct improper sentencing conditions on parole. Bullman I, ¶ 39.

¶5     On May 19, 2010, Bullman filed a petition for postconviction relief (PCR)

alleging (IAC), prosecutorial misconduct, failure of the prosecutor to disclose material

evidence, inadmissibility of other acts evidence, and improper exclusion of his expert.

After the State responded, the District Court granted Bullman several extensions to file

his reply. On March 30, 2011, the day before his reply was due, Bullman sought leave to

amend his petition. The District Court granted the motion to amend, but specifically

prohibited Bullman from asserting new claims.        Bullman petitioned this Court for

supervisory control, alleging the District Court erred when it improperly barred him from

raising new claims in his amended PCR petition. We denied that petition in Bullman v.

Curtis, No. OP 11-0268, 362 Mont. 543, 272 P.3d 124 (table) (August 9, 2011) (Bullman

II).

¶6     Bullman then filed his amended petition on October 22, 2012. In direct violation

of the District Court order, Bullman included new arguments in his amended petition.

Unbeknownst to Bullman, Judge Robert Allison had assumed the bench replacing Judge

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Curtis. Judge Allison had previously represented J.T.’s mother in the divorce from

Bullman. On April 4, 2013, the District Court denied his amended petition. Bullman

appealed.

¶7     On appeal, Bullman asserted the District Court erred by denying Bullman the right

to raise additional claims in his amended PCR petition, Judge Curtis had an

impermissible conflict of interest, Judge Allison had an impermissible conflict of interest,

IAC of trial counsel, and prosecutorial misconduct. In Bullman v. State, 2014 MT 78,

374 Mont. 323, 321 P.3d 121 (Bullman III), we determined that the District Court did not

abuse its discretion when it precluded Bullman from asserting new claims in his amended

PCR petition and that Bullman was prohibited from raising argument regarding Judge

Curtis’s conflict of interest because he failed to raise the issue on direct appeal; yet we

agreed that Judge Allison was disqualified and we remanded Bullman’s amended PCR

petition for reconsideration by a different judge. We declined to reach the merits of

Bullman’s IAC and prosecutorial misconduct claims in his PCR petition.

¶8     On remand, the Honorable Heidi J. Ulbricht considered Bullman’s petition for

postconviction relief. On September 6, 2016, the District Court denied his petition,

finding it consisted largely of opinion and conclusory allegations.       Specifically, the

District Court found that Bullman’s trial counsel: reasonably investigated legitimate

avenues for a meritorious defense that were available to him at the time; that the defense

was prohibited from cross-examining the victim concerning her prior sexual conduct

unless a statutory exception applied, § 45-5-511(2), MCA, which the court determined

did not exist in this case; that M. R. Evid. 608 prevented the defense from providing

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character evidence or offering extrinsic evidence of the victim’s conduct to attack her

credibility; that an expert witness may offer opinions based on hypothetical questions and

that expert testimony explaining the complexities of child sexual abuse for jurors to

understand and evaluate a child victim’s testimony is admissible; that sufficient evidence

existed for the jury to find Bullman and J.T.’s mother were married and that no prejudice

had been established; and that evidence of Bullman’s grooming and sexual misconduct

was not prohibited by M. R. Evid. 403, and a full evidentiary hearing was not necessary

to determine that the evidence was not so prejudicial in comparison with its probative

value. Bullman appeals.

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

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

conclusions of law are correct. Lacey v. State, 2017 MT 18, ¶ 13, 386 Mont. 204, 389

P.3d 233.    We review discretionary rulings in postconviction relief proceedings,

including rulings related to whether to hold an evidentiary hearing, for an abuse of

discretion. Lacey, ¶ 13. Claims of ineffective assistance of counsel present mixed issues

of law and fact which we review de novo. State v. Clary, 2012 MT 26, ¶ 12, 364 Mont.

53, 270 P.3d 88.

¶10   A petitioner seeking to reverse a district court’s denial of a petition for

postconviction relief bears a heavy burden. Whitlow v. State, 2008 MT 140, ¶ 21, 343

Mont. 90, 183 P.3d 861. A petition for postconviction relief must:

             (a) identify the proceeding in which the petitioner was convicted,
      give the date of the rendition of the final judgment complained of, and
      clearly set forth the alleged violation or violations;

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              (b) identify any previous proceedings that the petitioner may have
       taken to secure relief from the conviction; and
              (c) identify all facts supporting the grounds for relief set forth in the
       petition and have attached affidavits, records, or other evidence establishing
       the existence of those facts.

Section 46-21-104(1), MCA.           We have explained that “unlike civil complaints, the

postconviction statutes are demanding in their pleading requirements.” Kelly v. State,

2013 MT 21, ¶ 9, 368 Mont. 309, 300 P.3d 120.

¶11    On appeal of the denial of his petition for postconviction relief, Bullman claims

the court violated his confrontation clause and due process rights, the prosecution

committed misconduct, the District Court erred in admitting evidence of prior acts, and

his trial counsel was ineffective.

¶12    Grounds for relief in a petition for postconviction relief must be raised in the

original or amended original petition, unless leave is granted by the court. Section

46-21-105(1)(a), MCA. While a petition may be amended, in this case the District Court

precluded Bullman from raising new or additional grounds for relief in his amended

petition, which we affirmed in Bullman III. Moreover, this Court will not consider new

issues raised for the first time on appeal. Ellenburg v. Chase, 2004 MT 66, ¶ 14, 320

Mont. 315, 87 P.3d 473. Bullman failed to assert claims regarding his confrontation

clause or due process rights in his original petition. In violation of the District Court

order, Bullman included these claims in his amended petition. Therefore, we decline to

address these claims.

¶13    On appeal, Bullman asserts misconduct by the prosecution. Bullman asserts the

prosecution interfered with his cross-examination of the State witnesses and that the

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prosecutor colluded with the defense to educate the State’s expert. Claims that were or

could have been reasonably raised on direct appeal may not be raised, considered, or

decided in a petition for postconviction relief. Section 46-21-105(2), MCA. Claims of

prosecutorial misconduct not raised on direct appeal are procedurally barred in

postconviction. In re Martin, 240 Mont. 419, 421, 787 P.2d 746, 748 (1989). Bullman

raised his collusion argument for the first time in his amended petition. As Bullman was

precluded from raising new arguments in his amended petition, we decline to address his

argument. Bullman’s claims of prosecutorial misconduct are barred.

¶14    Bullman asserts the District Court erred in admitting evidence of prior acts.

Bullman respectfully requests we refer to his argument in his petition for postconviction

relief. Bullman makes no argument on appeal why or how the District Court erred. The

appellate rules unquestionably preclude parties from incorporating any argument into

appellate briefs by mere reference; appellate arguments must be contained within the

appellate brief. State v. Ferguson, 2005 MT 343, ¶ 41, 330 Mont. 103, 126 P.3d 463.

Bullman has failed to argue substantively that the District Court erred in allowing

evidence of prior acts; therefore, we decline to address the claim.

¶15    Finally, Bullman argues his trial counsel was ineffective. This Court evaluates

claims of ineffective assistance of counsel under the test established in Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); Whitlow, ¶ 10. First, the defendant

must show that his attorney’s performance was deficient by demonstrating that it fell

below an objective standard of reasonableness.        Whitlow, ¶ 14.   There is a strong

presumption that the attorney’s performance fell within the wide range of reasonable

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professional assistance, because there are “countless ways to provide reasonable

assistance in any given case.” Whitlow, ¶ 15; Strickland, 466 U.S. at 689, 104 S. Ct. at

2065.

¶16     Second, the defendant must show that his attorney’s deficient performance

prejudiced the defense. Whitlow, ¶ 10. The petition must show a “reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Because a defendant must

prove both prongs, an insufficient showing under one prong eliminates the need to

address the other. Sartain v. State, 2012 MT 164, ¶ 11, 365 Mont. 483, 285 P.3d 407.

¶17     Bullman asserts his trial counsel was ineffective because counsel: failed to obtain

school, counseling, and medical records; colluded with the prosecution; failed to be

familiar with the evidence to sufficiently present an alibi defense; failed to adequately

investigate the case by failing to contact, interview, and subpoena witnesses; failed to

effectively cross-examine, impeach, and discredit the State’s expert witness Wendy

Dutton, J.T.’s school counselor Joanna Lyon, and J.T.; and allowed Dutton’s testimony to

interrupt J.T.’s cross-examination.

¶18     A party alleging IAC on postconviction must come forward with specific factual

allegations that establish by a preponderance of the evidence that the party is entitled to

relief. Section 46-21-104, MCA; Ellenburg, ¶ 12. A petitioner seeking to reverse a

district court’s denial of a petition for postconviction relief based on a claim of

ineffective assistance of counsel bears a heavy burden. Whitlow, ¶ 21. Bullman has not

established the first prong of the Strickland test, that trial counsel’s performance was

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deficient or below an objective standard of reasonableness. Trial counsel’s affidavit

states he and his team investigated the witnesses whose names Bullman provided.

However, trial counsel determined that, even if true, the information from these witnesses

was likely inadmissible, was irrelevant, or would have been strategically unwise to

introduce at trial. Trial counsel cannot be deemed to be ineffective for failing to attempt

to introduce evidence he knew was inadmissible. M. R. Evid. 608; Deschon v. State,

2008 MT 380, ¶¶ 23-26, 347 Mont. 30, 197 P.3d 476. Trial counsel challenged the State

expert’s research and presented another expert witness to refute her conclusions. Trial

counsel successfully challenged some of J.T.’s school counselor’s assertions on cross.

Bullman has failed to overcome the strong presumption that counsel rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment. Lacey, ¶ 24. On de novo review, we conclude trial counsel’s actions were

reasonable; therefore, consideration of the second Strickland prong is unnecessary.

¶19    We decline to address Bullman’s other IAC arguments. Grounds for relief in a

petition for postconviction relief must be raised in the original or amended original

petition, unless leave is granted by the court. Section 46-21-105(1)(a), MCA. This Court

will not consider an issue raised for the first time on appeal. Ellenburg, ¶ 15. Bullman

did not allege in his original petition that counsel failed to obtain school, counseling, and

medical records or that counsel colluded with the prosecution. For the first time on

appeal, Bullman claims counsel failed to present an alibi defense. We decline to address

these IAC claims.



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¶20    Bullman is procedurally barred from raising arguments related to the alleged

violations of his confrontation clause and due process rights. Bullman failed to raise

prosecutorial misconduct claims in his direct appeal and is now barred from raising them

on appeal. Bullman failed to argue the alleged prior acts evidentiary issue on appeal and

therefore we decline to address it.       Bullman has failed to overcome the strong

presumption that trial counsel’s performance fell within the wide range of reasonable

professional assistance.

¶21    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.

¶22    Affirmed.


                                                 /S/ MICHAEL E WHEAT


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE




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