                                                                                          August 11 2015


                                           DA 14-0461
                                                                                         Case Number: DA 14-0461

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 238N



GARY JAMES THAUT,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Third Judicial District,
                       In and For the County of Powell, Cause No. DV 13-110
                       Honorable Ray Dayton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Gary James Thaut, Self-Represented, Deer Lodge, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                       Assistant Attorney General, Helena, Montana

                       Lewis K. Smith, Powell County Attorney, Deer Lodge, Montana



                                                   Submitted on Briefs: July 15, 2015
                                                              Decided: August 11, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Patricia Cotter 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        Gary James Thaut appears as a self-represented litigant and appeals the denial of his

petition for post-conviction relief in the Third Judicial District Court, Powell County. We

affirm.

¶3        Thaut is an inmate at the Montana State Prison (MSP). While incarcerated, the State

alleged that Thaut punched a correctional officer in the face, causing him bodily injury.

Thaut was subsequently convicted of felony Assault on a Peace Officer in violation of

§ 45-5-210, MCA, in the Third Judicial District Court. William Hooks was Thaut’s

appointed counsel. The District Court sentenced Thaut to a five-year term of imprisonment

at MSP, which was ordered to run consecutively with Thaut’s underlying sentence. Thaut

filed a timely notice of appeal.

¶4        Wendy Holton was assigned to represent Thaut on appeal. Holton subsequently

filed an Anders brief with a motion to withdraw from representation. Thaut did not timely

respond to the Anders brief. On February 27, 2013, this Court independently examined the

record and dismissed Thaut’s appeal concluding that an appeal would be wholly frivolous.

Order, State v. Thaut, DA 12-0458 (Feb. 27, 2013). Thaut later contended that he had not

filed a timely response due to a misunderstanding regarding service to the Clerk of Court.

On April 2, 2013, after accepting and considering Thaut’s late submissions, this Court


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reaffirmed its previous order dismissing Thaut’s appeal. Order, State v. Thaut, DA 12-0458

(Apr. 2, 2013).

¶5       On December 2, 2013, Thaut filed a petition for post-conviction relief raising

numerous claims, including bias by the District Court and this Court, malicious prosecution,

and ineffective assistance of trial and appellate counsel. The State and Hooks responded.

On June 9, 2014, the District Court denied Thaut’s petition. On September 23, 2014, this

Court denied Thaut’s writ of mandamus requesting an order to require MSP Mental Health

staff to release all of his mental health records. Thaut v. State, DA 14-0461 (Sept. 23, 2014).

On January 2, 2015, Thaut filed this appeal from the District Court’s June 9, 2014 denial of

Thaut’s petition.

¶6       Thaut’s argument that District Court Judge Ray Dayton should have recused himself

from the proceedings because Thaut filed a complaint against him with the Judicial

Standards Commission in 2011 “could reasonably have been raised on direct appeal” and is

therefore procedurally barred. See § 46-21-105(2), MCA. Thaut’s arguments that Powell

County was an improper venue, that he was improperly referred to as “the Offender” during

trial, and that there was insufficient evidence to support his conviction are record-based

claims that were previously raised on direct appeal in the Anders brief, and are also

procedurally barred pursuant to § 46-21-105(2), MCA. Moreover, this Court has already

determined that those appellate issues were “wholly frivolous.”

¶7       We further reject Thaut’s arguments related to his claims of ineffective assistance of

trial and appellate counsel as Thaut has not adequately established either prong of the

Strickland test. See Sartain v. State, 2012 MT 164, ¶ 11, 365 Mont. 483, 285 P.3d 407; see


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also Ellenburg v. Chase, 2004 MT 66, ¶ 16, 320 Mont. 315, 87 P.3d 473 (“a petition for

postconviction relief must be based on more than mere conclusory allegations”).

¶8       We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. Having

reviewed the briefs and the record on appeal, we conclude that Thaut has not met his burden

of persuasion. We therefore affirm the District Court’s denial of Thaut’s petition for

post-conviction relief.



                                                 /S/ PATRICIA COTTER

We Concur:


/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ JIM RICE




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