                                                                                    November 24 2009




                                          DA 08-0244

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2009 MT 398


BARRY ALLEN BEACH,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:         District Court of the Fifteenth Judicial District,
                     In and For the County of Roosevelt, Cause No. 1068-C
                     Honorable David Cybulski, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Terrance L. Toavs, Attorney at Law, Wolf Point, Montana
                     Peter K. Camiel, Mair & Camiel, Seattle, Washington

              For Appellee:

                     Hon. Steve Bullock, Montana Attorney General; John Paulson, Assistant
                     Attorney General, Helena, Montana

                     Ryan Rusche, Roosevelt County Attorney, Wolf Point, Montana



                                                  Submitted on Briefs: January 22, 2009

                                                             Decided: November 24, 2009


Filed:

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

¶1     Barry Allan Beach (Beach) appeals from an order of the Fifteenth Judicial District

Court, Roosevelt County, that denied his petition for post-conviction relief. We remand to

the District Court to hold an evidentiary hearing to assess Beach’s alleged newly discovered

evidence.

¶2     Beach’s appeal requires us to resolve the following issues:

¶3     Whether the District Court properly ruled that Beach’s petition for post-conviction

relief was procedurally barred.

¶4     Whether the District Court properly ruled that Beach’s petition for post-conviction

relief was time barred.

¶5     Whether the District Court properly denied Beach’s petition for post-conviction relief

without holding an evidentiary hearing.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶6     A jury convicted Beach of deliberate homicide on April 13, 1984. The court

sentenced Beach on May 11, 1984, to 100 years in the Montana State Prison without the

possibility of parole.

¶7     Beach appealed his conviction on multiple grounds. This Court upheld his conviction

and sentence. State v. Beach, 217 Mont. 132, 705 P.2d 94 (1985). The Court also denied

Beach’s petition for rehearing.

¶8     Beach filed a petition for post-conviction relief to this Court on October 30, 1995.

The Court held that Beach’s petition was procedurally barred either by res judicata and/or by


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the statutory five-year limitations period for filing a post-conviction relief petition. Beach v.

Day, 275 Mont. 370, 375, 913 P.2d 622, 625 (1996).

¶9     The Federal District Court for the District of Montana denied Beach’s petition for

habeas corpus on March 31, 1998. Beach v. Mahoney, CV 92-92-BLG-JDS (D. Mont. Mar.

31, 1998). The Ninth Circuit Court of Appeals affirmed. Beach v. McCormick, 191 F.3d

459 (table), 1999 WL 685944 (9th Cir. 1999).

¶10    Beach filed a petition in January 2005 for DNA testing of physical evidence that

investigators had collected during the homicide investigation. Much of the evidence,

including a pubic hair found on the victim’s sweater, could not be located for testing.

¶11    Beach filed an application for executive clemency to the Montana Board of Pardons

and Parole (MBPP) in 2005. MBPP denied Beach’s application on November 30, 2005.

¶12    Beach submitted an application for clemency, pardon, or commutation to Governor

Brian Schweitzer.      Governor Schweitzer referred his application to the MBPP for

consideration. MBPP conducted a three-day public hearing on Beach’s application. MBPP

denied Beach’s application on August 20, 2007.

¶13    Beach filed a petition for post-conviction relief on January 18, 2008, based in part on

alleged newly discovered evidence. The State filed a motion to dismiss. The District Court

denied Beach’s petition on March 28, 2008, without conducting a hearing. The court’s

cursory order stated that Beach’s petition was procedurally and time barred. The court

further concluded that the cumulative evidence proffered by Beach failed to demonstrate




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actual innocence in support of the fundamental miscarriage of justice exception to the time

requirements. Beach appeals.

                                STANDARD OF REVIEW

¶14    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. Heath v. State, 2009 MT 7, ¶ 13, 348 Mont. 361, 202 P.3d 118. We review

discretionary rulings in post-conviction relief proceedings, including rulings related to

whether to hold an evidentiary hearing, for an abuse of discretion. Heath, ¶ 13.

                                       DISCUSSION

¶15    Whether the District Court properly ruled that Beach’s petition for post-conviction

relief was procedurally barred.

¶16    The District Court failed to include in its order an analysis of why it deemed Beach’s

petition to be procedurally barred. Section 46-21-104(1)(c), MCA, provides the necessary

elements of a properly filed petition for post-conviction relief. A defendant must “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)(c), MCA. Mere conclusory allegations are insufficient to support the petition.

State v. Wright, 2001 MT 282, ¶ 31, 307 Mont. 349, 42 P.3d 753. A defendant’s affidavit,

unsupported by evidence, also is insufficient to support a petition. Williams v. State, 2002

MT 189, ¶ 19, 311 Mont. 108, 53 P.3d 864.




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¶17    Beach provided a nine page summary of the alleged newly discovered evidence and

twenty-nine exhibits that illustrate this new evidence. Beach also provided a twenty-seven

page memorandum in support of his petition. The State argues that regardless of whether

Beach has satisfied § 46-21-104, MCA, he has failed to overcome the procedural bar on

successive petitions set forth in § 46-21-105, MCA.

¶18    A second or subsequent petition must demonstrate good cause why the petition has

asserted claims that were not raised in the original petition. Section 46-21-105, MCA; State

v. Root, 2003 MT 28, ¶ 16, 314 Mont. 186, 64 P.3d 1035. Beach’s 1995 petition failed to

allege newly discovered evidence. This Court deemed that petition procedurally barred by

res judicata and/or by the statutory five-year limitations period for filing such a petition.

Beach, 275 Mont. at 375, 913 P.2d at 625.

¶19    Beach’s current petition, by contrast, alleges newly discovered evidence that he

claims became available recently only through the efforts of his defense team. Beach

contends that he could not have raised the newly discovered evidence in his first petition.

Nothing in the District Court’s order indicates that the court implicitly found a lack of

diligence on Beach’s part in locating this newly discovered evidence. In light of this

omission, we will grant Beach the benefit of the doubt as to whether he acted with sufficient

alacrity in locating this newly discovered evidence to meet the requirements of § 46-21-105,

MCA. Accordingly, we determine that Beach’s petition for post-conviction relief is not

procedurally barred by either § 46-21-104, MCA, or § 46-21-105, MCA.




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¶20    Whether the District Court properly ruled that Beach’s petition for post-conviction

relief was time barred.

¶21    The District Court without analysis simply stated in its order that Beach’s petition was

time-barred. Section 46-21-102, MCA, governs the timeliness of petitions for post-

conviction relief. The 1997 Montana legislature amended § 46-21-102, MCA, to allow “a

petition for relief [to] be filed at any time within 1 year of the date that the conviction

becomes final.” The jurisdictional time limit is not absolute. The legislature included a

statutory exception to the mandatory time limit for “[a] claim that alleges the existence of

newly discovered evidence.” Section 46-21-102(2), MCA; Sanchez v. State, 2004 MT 9,

¶ 10, 319 Mont. 226, 86 P.3d 1.

¶22    We have determined, however, that the 1997 amendments apply only to those

convictions that became final 12 months before the effective date of April 24, 1997.

Hawkins v. Mahoney, 1999 MT 82, ¶ 10, 294 Mont. 124, 979 P.2d 697; State v. Charlo, 2000

MT 192, ¶ 11, 300 Mont. 435, 4 P.3d 1201; State v. Whitehorn, 2002 MT 54, ¶ 44, 309

Mont. 63, 50 P.3d 121. We must evaluate the timeliness of Beach’s petition pursuant to the

pre-1997 amendments. Hawkins, ¶ 10.

¶23    The pre-1997 amendments allowed a petition for relief to be filed at any time within

five years of the date of conviction. Section 46-21-102, MCA (1995). The pre-1997

amendments contained no statutory exception. We recognized a limited exception to the

five-year statute of limitations when strict enforcement would result in a fundamental




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miscarriage of justice. State v. Redcrow, 1999 MT 95, ¶ 33, 294 Mont. 252, 980 P.2d 622;

State v. Pope, 2003 MT 330, ¶¶ 58-68, 318 Mont. 383, 80 P.3d 1232.

¶24    Beach’s conviction became final in 1984. Beach filed his latest petition on January

18, 2008. Beach has filed his petition well beyond the five-year statutory limitation. In fact,

this Court determined that Beach had filed his first petition for post-conviction relief in 1995

well after the statutory five-year limitations period had expired. Beach, 275 Mont. at 375,

913 P.2d at 625. Beach may escape the five-year statute of limitations only if he can satisfy

the fundamental miscarriage of justice exception. Redcrow, ¶ 33. Beach must rely upon the

fact that his allegedly newly discovered evidence satisfies the fundamental miscarriage of

justice exception.

¶25    Beach’s 1995 petition, of course, failed to allege newly discovered evidence. Beach,

275 Mont. at 375, 913 P.2d at 625. The State challenges whether Beach’s newly discovered

evidence provides anything “new” and that otherwise was not available to Beach at the time

that he filed his first petition in 1995. The District Court held that the alleged newly

discovered evidence proffered by Beach lacked a demonstration of actual innocence to

support the fundamental miscarriage of justice exception. The court failed to discuss,

however, the legal standard that it had applied.

¶26    The court’s only reasoning as to why it denied Beach’s petition relied on the

prosecutor’s actions in thoroughly reviewing the evidence and re-interviewing witnesses.

The court relied upon the prosecutor’s moral and ethical obligation to determine whether

Beach was “truly innocent.” Our system of justice depends on an independent judiciary


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undertaking an independent evaluation of the arguments and claims presented by the parties

before a court. The judiciary cannot abdicate its responsibility to undertake an independent

evaluation based upon the court’s deference to the State’s perceived adherence to moral or

ethical obligations.

¶27    We only can presume that the court agreed with the State’s argument that Beach had

failed to establish his “actual innocence” under the fundamental miscarriage of justice

exception. The State argued that Beach had failed to establish a “miscarriage of justice”

under the analysis suggested in Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867

(1995). We touched upon the miscarriage of justice standard in Redcrow and Pope.

¶28    In Redcrow, we agreed with the district court that Redcrow had not timely filed her

petition for postconviction relief as required by § 46-21-102, MCA. Redcrow, ¶ 29. We

further agreed that a “fundamental miscarriage of justice” triggered the limited exception to

the five-year statute of limitations. Redcrow, ¶ 31. This Court noted that it never had

defined clearly the scope of the “fundamental miscarriage of justice” exception and looked

for guidance from Schlup. Redcrow, ¶ 33.

¶29    The Court in Schlup excused a procedural default when the petitioner showed that “a

constitutional violation has probably resulted in the conviction of one who is actually

innocent.” Schlup, 513 U.S. at 327, 115 S. Ct. at 867. Schlup defines “actually innocent” as

not merely a showing that a reasonable doubt exists in light of the new evidence, but rather

that “no reasonable juror would have found the defendant guilty.” Schlup, 513 U.S. at 329,

115 S. Ct. at 868. The Court in Schlup emphasized that it was “not the district court's


                                            8
independent judgment as to whether reasonable doubt exists that the standard addresses.”

Schlup, 513 U.S. at 329, 115 S. Ct. at 868. The Court instead explained that the standard

requires the district court “to make a probabilistic determination about what reasonable,

properly instructed jurors would do.” Schlup, 513 U.S. at 329, 115 S. Ct. at 868.

¶30    The Court focused on the word “reasonable” in its formulation of the standard. The

Court presumed that a “reasonable juror would consider fairly all of the evidence presented”

and that such a reasonable juror “would conscientiously obey the instructions of the trial

court requiring proof beyond a reasonable doubt.” Schlup, 513 U.S. at 329, 115 S. Ct. at

868. Thus, under the Schlup standard, a party seeking to meet the threshold requirement must

persuade the district court that, “in light of the new evidence, no juror, acting reasonably,

would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 329,

115 S. Ct. at 868.

¶31    The Court in Redcrow recognized that the fundamental miscarriage of justice

exception concerns actual, or substantive innocence, rather than legal, or procedural

innocence. Redcrow, ¶ 33. The U.S. Supreme Court recognized this distinction in Sawyer v.

Whitley, 505 U.S. 333, 112 S. Ct. 2514 (1992). The Court distinguished between “actual

innocence” – the defendant’s claim that he was innocent of the crime charged – and “legal

innocence” claims involving allegations of procedural error or abuse. Sawyer, 505 U.S. at

339, 112 S. Ct. at 2519. The Court recognized that an interplay between “actual” and “legal”

innocence claims could result in a petition for post-conviction relief falling within the

“fundamental miscarriage of justice” exception to the general rule of res judicata. Sawyer,


                                            9
505 U.S. at 339, 112 S. Ct. at 2518. The Court held that a showing of “actual innocence”

required the petitioner to show by clear and convincing evidence that, but for a constitutional

error, no reasonable juror would have found the petitioner guilty. Sawyer, 505 U.S. at 344,

112 S. Ct. at 2521.

¶32    This Court in Redcrow ultimately settled on the principle that a “fundamental

miscarriage of justice arises only when a jury could find, in light of new evidence, that the

defendant is actually innocent of the crime.” Redcrow, ¶ 37. The Court rejected Redcrow’s

claim of actual innocence, however, in light of the fact that she had confessed to law

enforcement that she had stabbed the victim and she had admitted to another jail inmate that

she had killed the victim. Redcrow, ¶ 37. None of her claims of alleged ineffective

assistance of counsel implicated the confession or the admission. Redcrow, ¶ 37. Redcrow

failed to convince the Court that she could meet the standard of “actual innocence.”

Redcrow, ¶ 37.

¶33    The Court in Pope actually recognized a miscarriage of justice exception. Pope had

submitted completed DNA evidence for the purpose of passing through the Schlup “actual

innocence” gateway. Pope, ¶ 56. Pope also alleged constitutional violations associated with

his trial. Pope, ¶ 38. The trial court determined that Pope had not proven sufficient facts to

overcome the five-year statute of limitations. As a result, the trial court concluded that the

five-year limitation contained in § 46-21-102, MCA, precluded it from considering Pope’s

alleged constitutional violations in his petition for post-conviction relief. Pope, ¶ 34.




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¶34    This Court reversed. The fact that Pope had not presented the DNA evidence to the

jury because it had not been available at the time of trial allowed Pope to pass through the

Schlup actual innocence gateway. Pope, ¶ 56. Once having passed through the actual

innocence gateway, the Court allowed Pope to pursue relief for his alleged constitutional

violations through a petition for post-conviction relief that he had filed beyond the five-year

limitation specified in § 46-21-102, MCA. Pope, ¶ 68. The State did not contest the fact that

errors at Pope’s trial rendered his conviction constitutionally infirm. Pope, ¶ 68.

¶35    This concession obviated the need to evaluate whether Pope’s newly discovered

evidence demonstrated his substantive actual innocence. The Court determined that the

procedural errors at Pope’s trial combined with his newly claimed evidence to establish a

clear miscarriage of justice. Pope, ¶ 69. This Court did not analyze Pope’s substantive

innocence claims in light of the State’s admission to the procedural errors at his trial. The

Court vacated Pope’s conviction and remanded the matter for a new trial. Pope, ¶ 70.

¶36    Beach’s current petition relies on the fact that his newly discovered evidence

establishes his actual innocence. Similar to the petitioner in Pope, Beach argues that this

newly discovered evidence allows him to pass through the Schlup gateway. Pope, ¶ 69.

Unlike the petitioner in Pope, however, Beach relies on this same newly discovered evidence

to prove his actual innocence. This distinction raises the issue of how the District Court

should evaluate Beach’s alleged newly discovered evidence.

¶37    The Court had occasion in State v. Clark, 2005 MT 330, ¶ 34, 330 Mont. 8, 125 P.3d

1099, to expand upon how a trial court should evaluate claims of newly discovered evidence


                                             11
in a case brought on direct appeal. The Court reasoned that the trial court must consider

what impact, looking prospectively at a new trial with a new jury, that this new evidence

may have on that new jury. Clark, ¶ 36. This framework guides a court in analyzing claims

of newly discovered evidence.

¶38    To prevail on a motion for a new trial grounded on newly discovered evidence, the

defendant must satisfy the following test:

       (1) the evidence must have been discovered since the defendant’s trial;
       (2) the failure to discover the evidence sooner must not be the result of a lack
       of diligence on the defendant’s part;
       (3) the evidence must be material to the issues at trial;
       (4) the evidence must be neither cumulative nor merely impeaching; and
       (5) the evidence must indicate that a new trial has a reasonable probability of
       resulting in a different outcome.

Clark, ¶ 34.

¶39    The fifth element presents the most likely crux of any district court’s evaluation of

new trial motions based on newly discovered evidence. Clark, ¶ 36. The “reasonable

probability” standard leaves it to the trial court to determine the weight and credibility of the

new evidence. Clark, ¶ 36. The “reasonable probability” standard also leaves it to the trial

court to consider what impact, looking prospectively at a new trial with a new jury, this new

evidence may have on that new jury. Clark, ¶ 36.

¶40    In Crosby v. State, 2006 MT 155, 332 Mont. 460, 139 P.3d 832, we adopted this five-

pronged test to evaluate claims of newly discovered evidence presented in a petition for post-

conviction relief. Crosby, ¶ 19; State v. Abe, 2001 MT 260, ¶ 10, 307 Mont. 233, 37 P.3d 77.

A key witness for the State recanted her testimony after the trial in Crosby. Crosby, ¶ 6. The


                                              12
trial court erroneously concluded that a new trial would be granted only “when the trial judge

is satisfied the recantation is true.” Crosby, ¶ 21. We determined that the court erred when it

improperly placed itself in the role of fact-finder. Crosby, ¶ 21.

¶41    The District Court’s reliance in this case on the prosecutor’s moral and ethical

obligation improperly placed the prosecutor in the role of fact-finder. The court failed to

analyze the truthfulness of the testimony. As noted in Crosby, once a petitioner who alleges

newly discovered evidence has satisfied the five Clark factors, the trial court must leave

determination of whether actually to believe the newly discovered evidence to the fact-finder

on retrial. Crosby, ¶ 21. The trial court must analyze in the first instance, however, whether

a reasonable probability exists that the newly discovered evidence would change the

outcome at a new trial.

¶42    The Court in Crosby considered the petitioner’s untimely petition under the newly

discovered evidence exception in § 46-21-102(2), MCA. We must consider Beach’s petition

under the miscarriage of justice exception to the 1997 amendments. The State argues in its

brief, however, that this Court has imposed an “actual innocence” standard on both the

“newly discovered evidence” exception contained in the 1997 amendments to § 46-21-

102(2), MCA, and the “miscarriage of justice” exception discussed in Redcrow and related

cases. We agree with the State that both standards implicate “actual innocence,” as opposed

to “legal innocence.” This conclusion nevertheless fails to resolve the question of how the

court should evaluate the alleged newly discovered evidence in making its determination of

whether the petitioner has demonstrated “actual innocence.”


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¶43    As the U.S. Supreme Court indicated in Sawyer and Schlup, the “actual innocence”

inquiry may involve the interplay of substantive and procedural innocence claims. Sawyer,

505 U.S. at 336, 112 S. Ct. at 2517; Schlup, 513 U.S. at 316, 115 S. Ct. at 861. This Court

recognized this nexus in Pope. Pope’s substantive innocence claim – the DNA evidence –

served as the vehicle that allowed Pope to navigate the “actual innocence” gateway. This

successful navigation, in turn, allowed Pope to bring his procedural innocence claims – the

alleged constitutional violations. Pope, ¶ 44. The State did not contest Pope’s allegations of

procedural error. As a result, the Court did not address the standards to be applied to

substantive, as opposed to procedural, innocence claims. Beach brings both substantive and

procedural claims in his petition for post-conviction relief. We must delineate the standard

that applies to each.

¶44    A petitioner predicates a substantive “actual innocence” claim on the assertion that he

did not commit the crime of which he has been convicted. Pope, ¶ 53. A purely substantive

claim warrants the application of an “extraordinarily high” standard of review. Schlup, 513

U.S. at 316, 115 S. Ct. at 861 (quoting Herrera v. Collins, 506 U.S. 390, 426, 113 S. Ct. 853,

874 (1993)). Beach’s petition contains both substantive and procedural innocence claims.

The higher standard of review would apply to Beach’s substantive claims if he successfully

has navigated the “procedural gateway.” Schlup, 513 U.S. at 316, 115 S. Ct. at 861. The

analysis for Beach’s substantive claims “must incorporate the understanding that proof

beyond a reasonable doubt marks the legal boundary between guilt and innocence.” Schlup,

513 U.S. at 328, 115 S. Ct. at 867-68. We conclude that Beach must show by clear and


                                            14
convincing evidence that, but for a procedural error, no reasonable juror would have found

him guilty of the offense in order for him to prevail on his substantive innocence claim.

Schlup, 513 U.S. at 329, 115 S. Ct. at 868.

¶45    Beach’s procedural claims warrant the application of a different standard of proof.

Schlup, 513 U.S. at 324, 115 S. Ct. at 865. The standard of proof should reflect the “relative

importance attached to the ultimate decision.” Schlup, 513 U.S. at 325, 115 S. Ct. at 866

(citation omitted). A substantive innocence claim, if successful, results in the petitioner’s

release. By contrast, a successful procedural claim results in a new trial, and justifies a

different standard of proof. Schlup, 315 U.S. at 327, 115 S. Ct. at 867. The “reasonable

probability” standard outlined in Clark, ¶ 34, strikes a rough equivalence with the notion that

“a constitutional violation at trial has probably resulted in the conviction of one who is

‘actually innocent.’” Pope, ¶ 46. This “reasonable probability” standard also comports with

the Schlup standard that requires the petitioner to “establish, by a ‘fair probability,’ that the

‘trier of the facts would have entertained a reasonable doubt of his guilt.’” Schlup, 513 U.S.

at 322, 115 S. Ct. at 864 (citation omitted).

¶46    We recognize that Clark and Redcrow espouse forward looking tests that require a

court to evaluate what a jury would do in a new trial. By contrast, Schlup seemingly

contemplates a backward looking test that requires a court to assess how a reasonable jury

“would have voted” if it had possessed the benefit of the newly discovered evidence. We

nevertheless deem it appropriate under the facts of this case to have the District Court follow

a modified version of the Clark test that incorporates the Redcrow and Schlup standards to


                                              15
reflect the fact that Beach must establish a miscarriage of justice in order to escape the

procedural bar.

¶47    The District Court first must evaluate whether the alleged new evidence presented by

Beach constitutes actual “new” evidence as envisioned by the standards set forth in Clark.

This initial evaluation first entails a review of whether the evidence has been discovered

since the defendant’s trial. Clark, ¶ 34. The court then must determine whether the failure to

discover the evidence sooner must not be the result of a lack of diligence on the defendant’s

part. Clark, ¶ 34. The alleged newly discovered evidence presented by the petitioner must

be material to the issues at trial and it must be neither cumulative nor merely impeaching.

Clark, ¶ 34.

¶48    Only once the petitioner has cleared these hurdles should the District Court address

the final question. The “reasonable probability” standard from Clark leaves it to the trial

court to consider what impact, looking prospectively at a new trial with a new jury, the new

evidence may have on that new jury. Clark, ¶ 36. We must modify this analysis to conform

to the miscarriage of justice standard. As discussed in Redcrow, the court must evaluate

whether a jury “could find, in light of the newly discovered evidence,” that Beach actually is

innocent of his crime. Redcrow, ¶ 37. The Schlup Court phrased the test as “no juror, acting

reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513

U.S. at 329, 115 S. Ct. at 868. We determine that the standards explicated in Redcrow and

Schlup adhere most closely to the notion of a miscarriage of justice.




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¶49    Whether the District Court properly denied Beach’s petition for post-conviction relief

without holding an evidentiary hearing.

¶50    Section 46-21-104(1)(c), MCA, sets forth the procedural requirements for a petition

for post-conviction relief. The State concedes that Beach has satisfied these requirements. A

district court has discretion whether to dismiss a petition for post-conviction relief without

holding an evidentiary hearing. Heath, ¶¶ 13, 16. The District Court nonetheless abused its

discretion by denying Beach’s petition without holding an evidentiary hearing in response to

the State’s concession and the factors discussed in this opinion.

                                      CONCLUSION

¶51    We remain unable to glean from the District Court’s skeletal order its legal

conclusions and the facts on which it based those legal conclusions that led it to deny

Beach’s petition for post-conviction relief. The District Court’s order similarly leaves the

Court unable to determine whether it applied the correct legal standard in evaluating Beach’s

petition for post-conviction relief. As a result, we remand Beach’s petition to the District

Court to conduct an evidentiary hearing on the newly discovered evidence alleged in Beach’s

petition. The court must evaluate whether Beach’s alleged new evidence constitutes actual

new evidence. The court shall apply a modified version of the five-prong Clark test and the

Schlup “clear and convincing” standard to Beach’s alleged newly discovered evidence to

determine in the first instance whether Beach’s petition establishes that a “jury could find, in

light of the newly discovered evidence,” that Beach actually is innocent of his crime.

Redcrow, ¶ 37. The court must assess whether a jury, acting reasonably, would have voted


                                             17
to find Beach guilty beyond a reasonable doubt. Schlup, 513 U.S. at 329, 115 S. Ct. at 868.

The District Court shall provide a written order of its decision in accordance with the legal

standards set forth in this opinion.


                                                  /S/ BRIAN MORRIS



We Concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ JIM RICE




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