                                                                                             May 3 2016


                                           DA 15-0130
                                                                                         Case Number: DA 15-0130

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2016 MT 99N



BOBBY COOKSEY,

               Petitioner and Appellant,

         v.

STATE OF MONTANA,

               Respondent and Appellee.


APPEAL FROM:           District Court of the Fourteenth Judicial District,
                       In and For the County of Musselshell, Cause No. DV 14-22
                       Honorable Randal I. Spaulding, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Bobby Cooksey, self-represented; Deer Lodge, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                       Attorney General; Helena, Montana

                       Kent M. Sipe, Musselshell County Attorney; Roundup, Montana



                                                   Submitted on Briefs: March 30, 2016

                                                              Decided: May 3, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice 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     This is a direct appeal by Bobby Cooksey of the District Court’s dismissal of his

petition for postconviction relief.   The factual and procedural background for the

underlying criminal case was recounted by this Court in State v. Cooksey, 2012 MT 226,

366 Mont. 346, 286 P.3d 1174. Cooksey shot and killed his neighbor, Tracy Beardslee,

while Beardslee was trimming weeds on the other side of two fences. A jury convicted

Cooksey of deliberate homicide and this Court affirmed the conviction. Cooksey then

filed a petition for postconviction relief in district court. After receiving the State’s

response, the District Court dismissed Cooksey’s petition for postconviction relief

without holding a hearing on the ground it failed to state any claims upon which relief

could be granted.

¶3     It is difficult to discern what errors Cooksey asserts the District Court committed,

but there appears to be two arguments: (1) the District Court erred by dismissing his

ineffective assistance of counsel claim; and (2) the District Court erred by dismissing his

Brady violation claim.




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¶4     A district court may dismiss a petition for postconviction relief without holding an

evidentiary hearing if the procedural threshold set forth in § 46-21-104(1)(c), MCA, is

not satisfied. Herman v. State, 2006 MT 7, ¶ 15, 330 Mont. 267, 127 P.3d 422. In

addition, a court may dismiss a petition for postconviction relief without ordering a

response if the petition, files and records “conclusively show that the petitioner is not

entitled to relief”; alternatively, it may order a response and, after reviewing the response,

“dismiss the petition as a matter of law for failure to state a claim for relief or it may

proceed to determine the issue.” Herman, ¶ 15 (citing § 46-21-201(1)(a), MCA).

       A.     Ineffective Assistance of Counsel.

¶5     Ineffective assistance of counsel claims present mixed questions of law and fact

which are reviewed de novo. State v. Green, 2009 MT 114, ¶ 14, 350 Mont. 141, 205

P.3d 798. There is a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance contemplated by the Sixth Amendment.

Strickland v. Washington, 466 U.S. 668, 689 (1984). A petitioner bringing such a claim

bears a heavy burden to overcome this presumption. Whitlow v. State, 2008 MT 140,

¶ 15, 343 Mont. 90, 183 P.3d 861. In order to prevail upon such a claim, the petitioner

must prove (1) that counsel’s performance was deficient; and (2) that counsel’s deficient

performance prejudiced the defense. Whitlow, ¶ 10. Because a defendant must satisfy

both prongs of this test, an insufficient showing under one prong makes it unnecessary to

address the other prong. Whitlow, ¶ 11.




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¶6     Cooksey argues his counsel was ineffective because counsel failed to review a

videotape disclosed by the prosecution, failed to prepare defense witnesses and impeach

adverse witnesses, failed to object to speculative testimony, failed to offer photographs of

the victim’s firearms, and failed to call witnesses to testify to the victim’s mental

deficiencies. However, Cooksey does not explain how any of these instances constituted

a legally deficient performance, nor does Cooksey explain how his defense was

prejudiced. Moreover, Cooksey fails to show that any of this evidence would have been

admitted. See State v. Hildreth, 267 Mont. 423, 432, 884 P.2d 771, 777 (1994) (the

failure to object does not constitute IAC where the objection lacks merit and would have

been properly overruled). Cooksey’s various ineffective assistance of counsel claims are

no more than conclusory allegations, and were properly dismissed. See 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.”).

       B.     Brady Violation.

¶7     The State’s suppression of material evidence favorable to a defendant violates the

defendant’s constitutional right to due process. State v. Johnson, 2005 MT 318, ¶ 12, 329

Mont. 497, 125 P.3d 1096 (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). In order

to demonstrate a Brady violation, the criminal defendant bears the burden of showing that

(1) the State possessed evidence favorable to the defense; (2) the defendant did not

possess the evidence nor could he have obtained it with reasonable diligence; (3) the

prosecution suppressed the favorable evidence; and (4) had the evidence been disclosed,

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a reasonable probability exists that the outcome of the proceeding would have been

different. Johnson, ¶ 12. Where no such showing can be made, no violation can be

found. Johnson, ¶ 15.

¶8     Cooksey argues the prosecution failed to disclose exculpatory evidence, including

dash cam videos from the sheriff and deputies and that the sheriff failed to include all

detailed information in his incident report. As with his ineffective assistance of counsel

claims, Cooksey’s claims are conclusory with no supporting facts. Cooksey fails to

explain how the dash cam footage was favorable or would have changed the outcome of

the trial. Cooksey does not explain what was missing from the sheriff’s incident report,

let alone how such an omission prejudiced his defense. Cooksey therefore failed to

establish any Brady violation may have occurred, and his claim was properly dismissed.

¶9     We have determined to decide this case pursuant to Section 1, Paragraph 3(c) of

our Internal Operating Rules, which provides for unpublished opinions. This appeal

presents no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.

¶10    Affirmed.


                                                 /S/ JIM RICE

We concur:

/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA

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