                             No.    93-555

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1994


STATE OF MONTANA,
     Plaintiff and Respondent,
     -v-
ANTHEL L. BROWN,
     Defendant and Petitioner.




APPEAL FROM:   District Court of the Eighteenth Judicial District,
               In and for the County of Gallatin,
               The Honorable Larry W. Moran, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               Anthel L. Brown, Deer Lodge, Montana (pro se)
           For Respondent:
               Hon. Joseph P. Mazurek, Attorney General, Elizabeth
               L. Griffing, Assistant Attorney General, Helena,
               Montana; Mike Salvagni, Gallatin County Attorney,
               Bozeman, Montana


                              Submitted on Briefs:      August 11, 1994
                                             Decided:   October 4, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

     Petitioner Anthel L. Brown appeals the denial of his second
petition in the Judgment on Motion for Post Conviction Relief by
the District Court of the Eighteenth Judicial District, Gallatin
County.    We affirm.
     Defendant raises the following issues in his petition for
post-conviction relief:
     I.    Whether the petition for post-conviction relief is time-
barred under   §   46-21-102, MCA.
     11.   Whether the District Court erred         in not appointing
counsel for petitioner for purposes of this appeal.
     111. Whether the District Court erred in not holding an
evidentiary hearing.
     In 1976, appellant was convicted by guilty plea of felony
theft, deliberate homicide, sexual intercourse without consent,
robbery, and aggravated assault.         Brown entered his guilty plea
against the advice of counsel. He was sentenced to a total of 190
years in the Montana State Prison.
     In 1978, Brown, represented by the Defender Project at the
University of Montana School of Law, filed a petition for post-
conviction relief in this Court, alleging his guilty plea was
involuntary.       This Court remanded the matter for an evidentiary
hearing.
     After the evidentiary hearing in District Court, Brown's first
post-conviction petition and request to withdraw his guilty plea
were denied. The denial was affirmed on appeal to this Court after

                                     2
a thorough review.     See In the Matter of Brown (1980), 185 Mont.
200, 605 P.2d 185.       Brown then sought habeas corpus relief in
federal court on essentially the same grounds that he had raised in
state courts.     This relief was denied.    See Brown v. Crist (D.
Mont. 1980), 492 F. Supp. 965, aff'd without published opinion, 654
F.2d 728 (9th Cir. 1981), cert. denied, 454 U.S. 1087, 102 S.Ct.
648, 70 L.Ed.2d 624 (1981).
        Thirteen years later, Brown filed his second petition for
post-conviction relief, alleging again that his guilty plea was
involuntary and further alleging ineffective assistance of counsel.
The ~istrictCourt denied the petition because it was not filed
within the five-year statutory period provided for in 5 46-21-102,
MCA .
                    Issue I: Statute of Limitation
        Defendant contends the District Court erred in finding he was
procedurally barred by the five-year period in       §   46-21-102, MCA,
because that statute went into effect in 1981.       However, 5 46-21-
102, MCA, was enacted after this Court's decision in In re McNair
(1980), 189 Mont. 321, 615 P.2d 916, which held that a defendant
who waited eight and one-half years after the conviction before
filing his petition for post-conviction relief seeking to withdraw
his guilty plea had waited too long to seek relief.          Thus, even
before the enactment of the five-year time bar, case law prohibited
filing a petition after eight and one-half years.
        Brown waited thirteen years after being denied certiorari by
the United States Supreme Court before initiating this proceeding--
nearly eighteen years after his guilty plea.     The five-year time
bar is mandatory and jurisdictional. We conclude Brown's petition
was properly denied by the District Court.
                    Issue 11: Risht to Counsel
     Brown filed a motion for Appointment of Counsel along with his
notice of appeal in this matter.   Brown contends he is entitled to
counsel in this appeal from his denial of post-conviction relief.
The right to counsel is guaranteed by the Sixth Amendment of the
United States Constitution at "critical stages1' of a proceeding.
See, e.q., State v. Black (1990), 245 Mont. 39, 43, 798 P.2d 530,
532. Proceedings for post-conviction relief are not considered as
'Icritical stages1!but rather as collateral attacks which are civil
in nature and, thus, are not governed by the Sixth Amendment right
to counsel.   Black, 798 P.2d at 532.    We conclude the District
Court correctly denied assistance of counsel for this appeal.
                 Issue 111:   Evidentiary Hearinq
     Brown recognizes in his brief that the post-conviction relief
procedure is civil in nature and independent of his criminal case.
However, he contends it is error to deny an application for post-
conviction relief without an evidentiary hearing if the allegations
have merit or would otherwise entitle the petitioner to relief. If
Brown's post-conviction petition were not time-barred, he in fact
would be entitled to an evidentiary hearing like the hearing
granted in his first petition for post-conviction relief. Because
this petition is time-barred, such a hearing is not warranted. We
conclude that Brown is not entitled to an evidentiary hearing.
           Affirmed.
           Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
     1988 Internal Operating Rules, this decision shall not be cited as

     precedent and shall be published by its filing as a public document
     with the Clerk of this Court and by a report of its result to the
     West Publishing Company.




     We Concur:           ,/



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