                                                                                             August 14 2015


                                          DA 13-0763
                                                                                         Case Number: DA 13-0763

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 242


CODY WILLIAM MARBLE,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DV 10-1670
                       Honorable Douglas G. Harkin, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Colin M. Stephens (argued), E. Lars Phillips (argued), Smith
                       & Stephens, P.C., Missoula, Montana

                       Brendan McQuillan, Montana Innocence Project, Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Tammy K Plubell (argued),
                       Assistant Attorney General, Helena, Montana

                       Kristen H. Pabst, Missoula County Attorney, Missoula, Montana



                                                    Submitted on Briefs: February 11, 2015
                                                               Argued: May 20, 2015
                                                               Decided: August 14, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Cody Marble appeals the Fourth Judicial District Court’s denial of his petition for

postconviction relief (PCR). This case has a lengthy history. In 2002, Marble was convicted

of sexual intercourse without consent. The victim, then thirteen-year-old Robert Thomas,

testified at Marble’s trial that Marble forcibly engaged in anal sexual intercourse with him in

the shower at the Missoula County Detention Center where both boys were temporary

inmates for juvenile offenses. In 2010, Thomas recanted his accusations in writing. Based

upon those recantations, Marble petitioned for postconviction relief seeking, among other

things, a new trial. The District Court denied the petition. Marble appeals. We reverse the

order of the District Court and remand for proceedings in accordance with this Opinion.

                                          ISSUES

¶2     We restate the issues before the Court as follows:

¶3     Did the District Court err in predicating its decision upon the concurring opinion in

State v. Beach, 2013 MT 130, 370 Mont. 163, 302 P.3d 47 (Beach II1)?

¶4     If reliance on the Beach II concurrence was error, what test must a district court

employ in reviewing a petition for postconviction relief based upon newly discovered

evidence and filed within one year of discovery of such evidence?




1
 As we have previously designated Beach v. State, 2009 MT 398, 353 Mont. 411, 220 P.3d 667 as
Beach I, we designate our opinion in State v. Beach, 2013 MT 130, 370 Mont. 163, 302 P.3d 47 as
Beach II.


                                              2
                  FACTUAL AND PROCEDURAL BACKGROUND

¶5     In 2002, seventeen-year-old Cody Marble spent several weeks in Pod C of the

Missoula County Detention Center (MCDC) with seven other boys, aged 13 to 18.

According to MCDC taped footage and eyewitness testimony, on the evening of March 10,

2002, between 9:00 p.m. and 9:45 p.m., while at least four other pod mates were gathered in

the common area just outside the showers, Thomas and Marble voluntarily entered a shower

stall together. Approximately ten minutes later, they left the shower area and Thomas went

to his cell just prior to the 10:00 p.m. lights out deadline. Thomas later claimed that during

the ten minutes he was in the shower stall with Marble, Marble told him to remove his pants

and grab his ankles. Thomas claimed that after being threatened if he refused, Thomas

complied at which time Marble had anal sexual intercourse without consent with Thomas.

Thomas asserts that as they left the shower area, Marble threatened him with bodily harm

again and then instructed him to tell the others that it was just a joke and that Marble had not

sodomized him. Thomas did not report the alleged assault to the MCDC staff.

¶6     On March 13, both boys were released from MCDC and went home to their respective

families. On March 21, 2002, Marble was charged with felony sexual intercourse without

consent after other Pod C inmates reported to the Detention Center authorities that Marble

had raped Thomas in the showers on March 10. Later, those same inmates and Thomas

testified against Marble at trial. Marble asserted the rape never occurred and that he was the

victim of a malicious set-up by other boys in the pod, including Thomas. On November 22,

2002, a jury found Marble guilty. In January 2004, Marble was sentenced to twenty years,

with fifteen suspended.


                                               3
¶7       Marble has consistently maintained his innocence since he was accused, and his case

has been before this Court on multiple occasions. See, e.g., State v. Marble, 2005 MT 208,

328 Mont. 223, 119 P.3d 88, Marble v. State, 2007 MT 98, 337 Mont. 99, 169 P.3d 1148,

and State v. Marble, 2010 MT 210N.2

¶8       In the late fall of 2009, Marble contacted the Montana Innocence Project. Marble had

heard rumors that Thomas, who was serving time for statutory rape, was telling other

inmates that Marble did not rape him. Marble asked the Innocence Project to contact

Thomas and investigate. The Innocence Project interviewed Thomas approximately four

times between December 23, 2009, and July 2010. Thomas verbally recanted his rape claim

on each occasion but initially refused to provide a written statement.

¶9       In July 2010, Thomas handwrote the following recantation:

         8 or so years ago when I was 13 at Missoula County Juvenile Detention
         Facility I was sitting at a table in the dayroom. There were three other people
         at the table. They told me to say that Cody Marble raped me. But this did not
         happen. And now today I want to come out and let it be known. I’m coming
         forward now because I’m in prison on a sex crime and know what it is like.
         So I don’t want him to be charged with one when innocent. When I was in
         jail, I was the youngest & smallest and I was pressured into going along with
         it.

Thomas provided this letter to attorneys with the Montana Innocence Project. A few days

later, an Innocence Project lawyer returned with a typed letter of recantation for Thomas’s

signature. This letter was more detailed than Thomas’s earlier handwritten note. It

unequivocally stated that the rape did not occur and that Thomas had participated in a

conspiracy against Marble. Thomas made a handwritten correction to one of the statements


2
    State v. Marble, 2010 MT 210N, is a non-cite opinion that shall not be cited as precedent.


                                                  4
and initialed and dated the correction. He then signed and dated the typed letter and returned

it to the Innocence Project lawyer.

¶10    Based upon these letters, on December 14, 2010, Marble filed a petition for

postconviction relief, the denial of which is currently on review before us. The District

Court ordered that Thomas be deposed. At both his deposition in January 2012 and later at

the October 24, 2012 PCR hearing, Thomas testified that the rape did occur as he claimed in

2002 and that because the Innocence Project lawyers called him a liar, he recanted and told

them what they wanted to hear. He also testified that he thought the Innocence Project might

help him with his legal problems if he cooperated with them.

¶11    In November 2013, the District Court denied Marble’s petition. The court predicated

its decision upon the concurring opinion in Beach II and decided that Thomas’s recantation

did not “affirmatively and unquestionably establish” that Marble was innocent and therefore

his petition for PCR failed. Marble filed a timely notice of appeal.

¶12    On April 7, 2014, while on parole, Thomas had an encounter with the Havre police

that resulted in a 21-hour standoff ending with Thomas’s suicide.

                               STANDARD OF REVIEW

¶13    “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.” Beach v. State, 2009 MT 398, ¶ 14, 353 Mont. 411, 220

P.3d 667 (citing 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




                                              5
to whether to hold an evidentiary hearing, for an abuse of discretion.” Beach, ¶ 14; Hamilton

v. State, 2010 MT 25, ¶ 7, 355 Mont. 133, 226 P.3d 588.

                                       DISCUSSION

¶14    Did the District Court err in predicating its decision upon the concurring opinion in
       State v. Beach, 2013 MT 130, 370 Mont. 163, 302 P.3d 47 (Beach II)?

¶15    Marble’s petition for postconviction relief was brought under § 46-21-102(2), MCA.

In its entirety § 46-21-102, MCA, provides:

                (1) Except as provided in subsection (2), a petition for the relief
       referred to in 46-21-101 may be filed at any time within 1 year of the date that
       the conviction becomes final. A conviction becomes final for purposes of this
       chapter when:
       (a) the time for appeal to the Montana supreme court expires;
       (b) if an appeal is taken to the Montana supreme court, the time for petitioning
       the United States supreme court for review expires; or
       (c) if review is sought in the United States supreme court, on the date that that
       court issues its final order in the case.
                (2) A claim that alleges the existence of newly discovered evidence
       that, if proved and viewed in light of the evidence as a whole would establish
       that the petitioner did not engage in the criminal conduct for which the
       petitioner was convicted, may be raised in a petition filed within 1 year of the
       date on which the conviction becomes final or the date on which the petitioner
       discovers, or reasonably should have discovered, the existence of the evidence,
       whichever is later.

¶16    The State does not argue that Marble’s petition was untimely, nor does it assert that

Marble’s awareness of inmate rumors triggered the one-year clock to begin running.

Marble’s representative—the Innocence Project—heard from Thomas for the first time on

December 23, 2009, that the rape had not occurred. Marble filed his petition for PCR on

December 14, 2010. Consequently, Marble’s petition was not time-barred.

¶17    Marble asserted in the District Court that the newly discovered evidence consisting of

Thomas’s repeated recantations entitled him to a new trial. He maintained that his PCR


                                              6
petition should be analyzed under § 46-21-102(2), MCA, and State v. Clark, 2005 MT 330,

330 Mont. 8, 125 P.3d 1099. The State argued that his claim for PCR relief should be treated

as a substantive claim of actual innocence in accordance with the analysis set forth in the

concurring opinion in Beach II, and should not be premised on Clark.

¶18    The District Court adopted the State’s argument and conducted a lengthy analysis of

Marble’s claim of innocence under the Beach II concurrence. The court concluded that in

making a substantive claim of innocence under § 46-21-102(2), MCA, Marble must not only

raise doubt about his guilt, but must affirmatively and unquestionably establish his

innocence. Consistent with its reading of the Beach II concurrence, the District Court

rejected the contention that the five-part test articulated by this Court in Clark should figure

in the court’s analysis. Marble argues on appeal that the District Court erred in applying the

test set forth in the Beach II concurrence to his PCR petition and rejecting the application of

the Clark factors.

¶19    In Beach’s 2008 petition for PCR, Beach claimed that newly discovered evidence

established his “actual innocence.” The district court reviewed the new evidence and

determined that it was sufficient to warrant a new trial. The State appealed and this Court

reversed the district court, holding that, as part of its analysis the district court was required

to consider the evidence presented at Beach’s original trial together with Beach’s new

evidence. We concluded that the district court erroneously reviewed the new evidence only.

Beach II, ¶ 79. After considering both old and new evidence on appeal, we concluded that

Beach’s newly discovered evidence did not displace the original trial evidence and that the




                                                7
new evidence was unreliable and failed to establish Beach’s actual innocence. Beach II,

¶ 80.

¶20     The Beach II concurrence revisited the test for determining postconviction claims of

“actual innocence” as set forth in Beach I and applied in Beach II. Beach II, ¶ 81

(McKinnon, J., concurring). Concluding that the Beach I test confused the applicable law,

the concurrence reviewed the standards for both substantive and procedural innocence claims

and set forth revised standards for each. The concurrence also addressed application of

§ 46-21-102(2), MCA, to postconviction cases and suggested that the statute was a

codification of the requirements for a substantive claim of actual innocence, requiring a

petitioner to “affirmatively and unquestionably establish his innocence, based upon reliable

new evidence discovered within the twelve months preceding the filing of his petition and in

light of the proof of his guilt at trial.” Beach II, ¶ 131.

¶21     As indicated, Marble argues that the District Court should have analyzed his petition

under the five-prong Clark test rather than the Beach II concurrence. In Clark, we reviewed

a district court’s denial of Clark’s motion for a new trial (as opposed to a PCR petition). In

2003, Clark was convicted of sexually assaulting his stepdaughter. Shortly after the trial, the

stepdaughter recanted much of her damning testimony. Clark moved for a new trial

asserting that the recantation constituted new evidence. The district court denied his motion

and several months later sentenced him and entered a written judgment. Clark, ¶¶ 13-15.

¶22     On appeal, we announced that the following test would be applied to motions for new

trial predicated on newly discovered evidence:

        To prevail on a motion for a new trial grounded on newly discovered


                                                8
       evidence, the defendant must satisfy a five-part 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. We then remanded Clark’s motion to the district court for reconsideration in

accordance with the five-part test. Clark, ¶ 42.

¶23    Several months after Clark was decided, Crosby v. State, 2006 MT 155, 332 Mont.

460, 139 P.3d 832, came before the Court. In 1996, Crosby was convicted of sexual

intercourse without consent. The victim, Crosby’s then ten-year-old daughter, recanted her

testimony in 2003. Crosby, ¶ 5. Crosby filed a petition for postconviction relief alleging

that his daughter’s recantation constituted new evidence. Crosby, ¶ 6. Following a PCR

hearing, the district court denied Crosby’s motion. Crosby, ¶¶ 7-8. On appeal, we concluded

that the Clark test, originally developed to address a motion for a new trial, should apply to a

petition for postconviction relief based upon newly discovered evidence. Crosby, ¶ 20. We

reversed and remanded Crosby’s case to the district court with instructions to apply the Clark

test to determine whether Crosby was entitled to postconviction relief and a new trial.

Crosby, ¶ 25. Since we decided Crosby, we have applied the Clark test in analyzing claims

for postconviction relief based upon newly discovered evidence in two cases: DuBray v.

State, 2008 MT 121, 342 Mont. 520, 182 P.3d 753 and State v. Tyler, 2009 MT 75, 349

Mont. 461, 204 P.3d 685.




                                               9
¶24    Because we held in Crosby that the Clark test should apply in PCR cases, Marble

argues the Clark test should likewise apply to his postconviction relief claim. The State

counters, however, that applying Clark to claims for postconviction relief is incompatible

with the exacting language of § 46-21-102(2), MCA, which allows a postconviction claim

based upon newly discovered evidence, provided that the claim, “if proved and viewed in

light of the evidence as a whole would establish that the petitioner did not engage in the

criminal conduct for which the petitioner was convicted.” Section 46-21-102(2), MCA. The

State points out that, by contrast, the fifth Clark factor requires only a finding that “a new

trial has a reasonable probability of resulting in a different outcome.” Clark, ¶ 34.

¶25    At oral argument, the State maintained that the disparity between the proof required

under the PCR statute and that required by the fifth factor of the Clark test is justified in light

of the fact that a PCR petitioner is saddled with a presumption of guilt, whereas a judgment

of conviction has not yet been entered against the petitioner who files a motion for new trial

following a verdict or finding of guilty but before the entry of a judgment of conviction.

Thus, it argues, the test to be applied to PCR claims premised upon newly discovered

evidence should require a more strenuous level of proof than that applied to a petitioner

against whom a judgment of conviction has not yet been entered.

¶26    A defendant who has been convicted by a court or jury of a crime but against whom a

final judgment of conviction and sentence has not yet been entered has a brief window of

time within which to file a motion for new trial. Section 46-16-702(2), MCA, requires a

defendant seeking a new trial to do so within 30 days following the verdict or finding of

guilty. This window of time invariably closes before the imposition of a judgment of


                                                10
conviction, given the statutory requirements of a presentence investigation, preparation of a

report, and the scheduling and conduct of the sentencing hearing. Thus, as the State posits, a

defendant seeking a new trial will do so before a final judgment of conviction and sentencing

has been entered.

¶27    Section 46-16-701, MCA, provides that “[t]he granting of a new trial places the

parties in the same position as if there had been no trial.” This can occur because there is at

that point no judgment of conviction to overturn. By contrast, a postconviction relief

petitioner seeks relief well after his conviction has become final.                    Section

46-21-102(1)(a)-(c), MCA.

¶28    We agree with the State’s argument. Although there is a paucity of case law on the

topic, it stands to reason that a PCR petitioner is presumed guilty following the date upon

which his conviction has become final, while a defendant who has timely requested a new

trial and has not yet had a judgment of conviction and sentence entered against him does not

yet carry with him the presumption of guilt and the associated burdens that accompany a

final judgment of conviction.

¶29    Because the PCR petitioner is presumed guilty following the entry of a judgment of

conviction, his burden when seeking postconviction relief based upon newly discovered

evidence should be greater than that imposed upon a petitioner seeking a new trial under

§ 46-16-702, MCA. Our conclusion here is underscored by the precision of the language of

§ 46-21-102(2), MCA, quoted above. Moreover, we conclude we have erred in equating a

motion for new trial with a postconviction relief claim based upon newly discovered

evidence because, while a motion for new trial does—by definition—contemplate a new


                                              11
trial, postconviction proceedings are in no way tethered to such relief. An examination of

the postconviction relief statutes illustrates this point.

¶30    Section 46-21-201, MCA, describes the proceedings to be undertaken upon the filing

of a PCR petition. Unless the petition and the case records conclusively show that the

petitioner is not entitled to relief, the court shall cause notice of the petition to be sent to the

county attorney and the attorney general, who can then determine whether to respond to the

petition. “Following its review of the responsive pleading, the court may dismiss the petition

as a matter of law for failure to state a claim for relief or it may proceed to determine the

issue.” Section 46-21-201(1)(a), MCA. If the court determines that a hearing is required, or

if the interests of justice require, it can order the office of the state public defender to assign

counsel for a qualifying petitioner. Section 46-21-201(2), MCA. Thereafter, the court may

for good cause grant either party leave to use discovery procedures; it may also receive proof

of affidavits, depositions, oral testimony, or other evidence, and may order the petitioner

brought before the court for hearing. Section 46-21-201(4) and (5), MCA. Finally, if the

court finds in favor of the petitioner, “it shall enter an appropriate order with respect to the

judgment or sentence in the former proceedings and any supplementary orders as to

reassignment, retrial, custody, bail, or discharge that may be necessary and proper. If the

court finds for the prosecution, the petition must be dismissed.” Section 46-21-201(6),

MCA.

¶31    The foregoing statutory provisions illustrate that a court entertaining a petition for

postconviction relief has multiple arrows in its quiver. While a court may order a new trial,

it clearly has the statutory right to dismiss the petition before or after briefing or proceed to


                                                12
“determine the issue” with or without a hearing. A request for a new trial in a petition for

postconviction relief based upon newly discovered evidence, while permissible, does not

recast a PCR proceeding as a petition for a new trial, nor does it change or limit the options

available to the district court. We therefore erred in tying a PCR court to the Clark test, and

in particular to factor five of the Clark test, which permits a defendant “[t]o prevail on a

motion for a new trial grounded on newly discovered evidence” where the evidence indicates

“that a new trial has a reasonable probability of resulting in a different outcome.” Crosby,

¶ 19. This test is inconsistent with the standard set forth in § 46-21-102(2), MCA, and

undercuts the wide discretion available to a district court considering a PCR petition under

§ 46-21-201, MCA. Accordingly, we hereby overrule Crosby, DuBray, and Tyler to the

extent that they apply the fifth factor of the new trial Clark test to a petition for

postconviction relief that is based upon newly discovered evidence.

¶32    We must next determine whether the District Court erred in predicating its decision on

the Beach II concurring opinion, and if so, what test should be applied to petitions for

postconviction relief premised upon newly discovered evidence.            We start with the

proposition that newly discovered evidence can take varying forms.             The Beach II

concurrence concludes at ¶ 131 that a petitioner seeking relief under § 46-21-102(2), MCA,

must “affirmatively and unquestionably establish his innocence, based on reliable new

evidence . . . .” While this test may be well-suited to exonerating evidence that is scientific

and absolute in nature, such as DNA, it is not workable in situations in which the newly

discovered evidence is of a different type, such as perjured or new alibi evidence, a

confession by a third-party, or—as here—recantation evidence. Powerful new evidence of


                                              13
this type could certainly establish that the defendant did not commit the crime of which he

was convicted, but it will not, standing alone, “unquestionably establish his innocence.”

Rather, as § 46-21-102(2), MCA, commands, the new evidence must be “proved and viewed

in light of the evidence as a whole.”        As Marble argues, if a petitioner is able to

unquestionably establish his innocence through new evidence, there would be no reason to

compare the new evidence to the proof of guilt at trial. Moreover, such a rigid test fails to

take account of the above-noted provisions of the PCR statutes, which allow a district court

to order briefing, further discovery, and/or a new trial. These statutory options allow a court

to explore whether the petitioner can establish his innocence, and are inconsistent with the

extraordinarily high standard set by the Beach II concurrence. We accordingly conclude that

the test announced in the Beach II concurrence, insofar as it requires a petitioner to

“affirmatively and unquestionably establish his innocence, based upon reliable new

evidence,” is not suited to the quantum of proof required of a postconviction relief petitioner

seeking relief under § 46-21-102(2), MCA, and we repudiate ¶ 131 of the concurrence. We

hold therefore that the District Court’s conclusion of law applying the Beach II concurrence

to the denial of Marble’s postconviction petition was incorrect.

¶33    The Dissent maintains that we err in refusing to apply the principles articulated in

Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995), as explained in Justice McKinnon’s

Beach II concurrence. We disagree. The Beach II concurrence instructs that a Schlup

petitioner must allege the occurrence of a constitutional violation at his first trial coupled

with the presentation of new evidence of innocence. Beach II, ¶ 96. As illustrated in ¶ 54

and the accompanying footnote of Justice McKinnon’s Concurrence and Dissent, in each of


                                              14
our cases in which Schlup was invoked, the defendant alleged the occurrence of a

constitutional error during his first trial, such as improper instructions to the jury or

ineffective assistance of trial counsel. Marble does not allege that a constitutional violation

occurred at his first trial; therefore, Schlup is not applicable. We proceed to determine what

test should be applied to Marble’s petition.

¶34    What test must a district court employ in reviewing a petition for postconviction relief
       based upon newly discovered evidence and filed within one year of discovery of such
       evidence?

¶35    Section 46-21-102(2), MCA, provides that an allegation that newly discovered

evidence, “if proved and viewed in light of the evidence as a whole would establish that the

petitioner did not engage in the criminal conduct for which the petitioner was convicted”

may be raised in a postconviction petition. The statute merely allows the filing of the

petition; it does not in any way define or circumscribe whether the proof must be made to the

district court, whether the petitioner must meet a certain threshold before the court can

consider expanding the proceedings to include a hearing or a new trial, or whether such proof

must be made on retrial. As noted, the implementing provisions set forth at § 46-21-201,

MCA, likewise do not delineate how and to whom the proof must be made, and instead

accord the court multiple options for how it may proceed.

¶36    In construing a statute, it is incumbent upon the court to “declare what is in terms or

in substance contained therein, not to insert what has been omitted . . . .” Section 1-2-101,

MCA. The wide range of alternative proceedings set forth in § 46-21-201, MCA, reflect a

legislative intent to place the method of resolving a petition for postconviction relief in the

hands of the district court. We therefore conclude that a district court presented with a


                                               15
postconviction petition based upon newly discovered evidence shall utilize the very test set

forth in § 46-21-102, MCA. It shall determine whether the “newly discovered evidence . . .,

if proved and viewed in light of the evidence as a whole would establish that the petitioner

did not engage in the criminal conduct” for which he or she was convicted. In making this

determination, a district court may seek guidance from our case law addressing various

forms of newly discovered evidence, such as our precedent with respect to recantations,

whether set forth in a case involving a motion for new trial or one addressing a PCR petition.

See, e.g., Clark and Crosby. While we conclude herein that we erred in applying the fifth

factor of the Clark new trial test to a PCR petition predicated upon newly discovered

evidence, the first four factors of the Clark test (see ¶ 21) also remain a viable resource when

determining whether the newly discovered evidence should be considered.

¶37    It will be up to the district court to determine within the options provided in

§ 46-21-201, MCA, whether the proof and evidence will be weighed by the court itself,

whether discovery and a hearing should be conducted, whether the matter should be

remanded for a new trial, and even whether the defendant should be released on bail or

discharged. And if the court finds for the prosecution, the petition may be dismissed.

Section 46-21-201(4) through (6), MCA. On appeal, we will review the court’s findings of

fact for clear error and its conclusions of law for correctness, and will review discretionary

rulings for an abuse of discretion. Hamilton, ¶ 7. It will be incumbent upon the court—

however it elects to conduct the postconviction proceedings—to issue an order setting forth

the facts and legal rationale supporting its decision.




                                              16
¶38    The statutory test we announce today does not run afoul of our postconviction relief

precedent. This Court has reviewed on appeal literally hundreds of district court dispositions

of petitions for postconviction relief, many by way of memorandum opinion. While we have

on occasion reversed the district court’s denial of a petition for postconviction relief and

remanded for an evidentiary hearing (see Heath, ¶ 27, in which we remanded for a hearing in

view of the “unique circumstances” occasioned by an IAC claim involving trial counsel who

had since died), we have by and large declined to dictate to the district court which of the

many statutory alternatives it should utilize when considering the merits of a postconviction

petition. The constant in our decisions is the requirement that a postconviction petition 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. We have held that “[m]ere conclusory allegations are insufficient to

support the petition.” Beach, ¶ 16; Hamilton, ¶ 10. We have also reaffirmed the statutory

right of the district court to dismiss a PCR petition without ordering a response if the petition

and records “conclusively show that the petitioner is not entitled to relief” as stated in

§ 46-21-201(1)(a), MCA, and the court’s right to dismiss a petition without holding a hearing

if the petition fails to satisfy the procedural threshold set forth in § 46-21-104(1)(c), MCA.

Hamilton, ¶¶ 10-11. Otherwise, a court is free to invoke any or all of the procedural tools at

its disposal by virtue of the language of § 46-21-201, MCA, when determining the

disposition of a petition for postconviction relief predicated upon newly discovered evidence.

                                       CONCLUSION




                                               17
¶39       For the foregoing reasons, we conclude that the District Court erred in grounding its

rejection of Marble’s PCR petition upon the Beach II concurrence. We conclude that a

district court shall apply the statutory test set forth in § 46-21-102(2), MCA, in determining

the disposition of a timely filed petition for postconviction relief based upon newly

discovered evidence, and shall do so in accordance with the provisions of §§ 46-21-102(2)

and -201, MCA, and this Opinion.            Because the District Court erred in narrowly

circumscribing the relief available to Marble premised upon the Beach II concurrence, we

reverse and remand for reconsideration of Marble’s petition under the standards announced

herein.

¶40       Reversed and remanded.


                                                    /S/ PATRICIA COTTER


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ MICHAEL HAYWORTH
Judge Michael Hayworth sitting for Chief Justice Mike McGrath




Justice Jim Rice, concurring in part and dissenting in part.

¶41       I concur with the Court’s adoption of the statutory language in § 46-21-102, MCA, as

the standard to be applied to petitions for postconviction relief involving claims of newly

discovered evidence, that standard being whether the new evidence “if proved and viewed in



                                               18
light of the evidence as a whole would establish that the petitioner did not engage in the

criminal conduct.” Opinion, ¶ 35. However, because findings of fact have already been

entered by the District Court, I would proceed to conduct the legal analysis and apply the

new standard to those facts. Indeed, in his opening brief, Marble requests that this Court

apply the legal standard to the facts, and reverse his conviction. Alternatively, Marble asks

that we remand for application of the Clark test, as we did in Clark. However, as we

explained there, remand was necessary for application of the new legal test only because of

“our inability to glean from the record the District Court’s reasons for denying the motion for

a new trial.” Clark, ¶ 42. Here, we have no such deficit, as the District Court entered

extensive findings of fact. As the State’s counsel noted during oral argument, “the facts are

the facts,” and they will not change under application of a different legal standard. Since the

facts are already determined in this case and we would ultimately review the District Court’s

legal conclusions for correctness in any subsequent appeal, there is no legal reason requiring

a remand for the District Court to apply the new standard in the first instance.

¶42    The following factual statements are all taken from the District Court’s detailed

findings. Thomas was a “credible and believable witness,” both in the original trial and the

post-conviction hearing. Thomas’ sworn testimony in this matter, given over a period of 10

years from the original trial, to his deposition and through the postconviction proceeding,

was consistent: Marble raped him in the shower as alleged in the Information. Thomas

never varied from this account in his multiple statements given under oath.

¶43    Thomas was contacted by the Montana Innocence Project (MIP), who was

representing Marble. When meeting with Thomas, MIP did not initially discuss Marble’s


                                              19
case “and it was not until later meetings that [MIP lawyer] Mansch even mentioned Marble.”

Thomas was willing to continue meeting with Mansch because Thomas believed MIP was

going to help him with his own legal problems and that Mansch would help him get into the

military. Mansch “pressed hard” for Thomas to recant his testimony against Marble.

Thomas refused to sign an affidavit recanting his testimony that MIP prepared for his

signature and refused to recant under oath during the entire time.

¶44    Mansch told Thomas that if he signed a recantation statement, then, in Thomas’

words, “it [would] probably be over with” and “[t]hey shouldn’t need to hear from me

again.” Thomas was not advised of his rights to silence or to counsel. Thomas wrote out a

short recantation and signed an unsworn recantation statement that had been prepared for

him by MIP because he believed that by “giving Mansch what Mansch wanted,” Thomas

would obtain help for his own case and with getting into the military. He also signed it

“because they didn’t believe me, kept calling back talking to me, calling me a liar when I

told them the truth. So I just told them what they wanted to hear. . . . Badgered into it.”

Thomas had also been transferred to the same facility as Marble and been approached by a

friend of Marble’s about his testimony.

¶45    Subsequently, under oath, both in his deposition and in the post-conviction hearing,

Thomas acknowledged that his recantation statements given to MIP were false and were lies.

Thomas believed he “would not get into any trouble” for making a false statement if his

statement was not given under oath. Mansch’s “focus on helping Marble” kept Mansch from

seeing that Thomas’ recantation “was false and given as part of [Thomas’] attempt to obtain

the help of Mansch.”


                                            20
¶46    “[S]ignificant evidence” was introduced at Marble’s trial to support the jury’s

decision that Marble was guilty. Marble was “very, very interested” in taking the plea offer

made by the prosecution before Marble’s trial but he did not do so because of his father’s

strong feelings against Marble pleading guilty to an offense involving alleged homosexual

behavior.

¶47    The only new evidence is Thomas’ unsworn recantation. Although the recantation

could be used in a new trial for Marble, the District Court concluded that “[t]he evidence

leading up to the signed recantation by [Thomas] is devastating” to its value, including the

“circumstances of persistence under which it was obtained, the narrow manner (not sworn) in

which it was finally consented to be given and [Thomas’] motive for making the

recantation.” The District Court determined that the recantation “is not reliable evidence and

does not raise a doubt about the guilt of Marble, either on its own or in light of the proof of

Marble’s guilt adduced at the time of Marble’s trial.” Further, as Marble’s counsel

acknowledged during oral argument, the law requires that recantations are to be “viewed

with great suspicion.” Clark, ¶ 37.

¶48    Applying the new legal standard, I would conclude that the factual record clearly

demonstrates that the new evidence, that being Thomas’ unsworn recantation, fails to

“establish that the petitioner did not engage in the criminal conduct.” Opinion, ¶ 35;

§ 46-21-102, MCA. I would affirm the District Court.


                                                   /S/ JIM RICE




                                              21
Justice Laurie McKinnon, concurring in part and dissenting in part.

¶49    It is difficult for me to know where to begin.

¶50    First, by “announc[ing]” the “statutory test” as the new test to be utilized by district

courts presented with post-judgment claims of newly discovered evidence, Opinion, ¶ 38, the

Court has said nothing to assist the trial courts with their interpretation of § 46-21-102(2),

MCA, and has discarded valuable, well-established precedent that was properly understood

and applied by the District Court. Second, although we specifically overrule State v. Tyler,

2009 MT 75, 349 Mont. 461, 204 P.3d 685, DuBray v. State, 2008 MT 121, 342 Mont. 520,

182 P.3d 753, and Crosby v. State, 2006 MT 155, 332 Mont. 460, 139 P.3d 832, because

those decisions applied the test articulated in State v. Clark, 2005 MT 330, 330 Mont. 8, 125

P.3d 1099, to postconviction claims, Opinion, ¶ 31, we then reinject Clark factors into the

postconviction scenario by suggesting that a district court “may seek guidance” from Clark

and Crosby, Opinion, ¶ 36. Third, our analysis fails to adequately grasp significant

considerations underlying claims of actual innocence, which the legislature sought to protect

through its enactment of § 46-21-102(2), MCA, and misconstrues the concurring opinion in

State v. Beach, 2013 MT 130, ¶¶ 81-139, 370 Mont. 163, 302 P.3d 47 (McKinnon, J., with

Baker, Rice, and Simonton, JJ., concurring) (“Beach II concurrence”). Fourth, our decision

ignores our own clear precedent interpreting § 46-21-102(2), MCA, established prior to this

Court’s misguided decisions of Beach v. State, 2009 MT 398, 353 Mont. 411, 220 P.3d 667

(“Beach I”), Tyler, DuBray, Crosby, and State v. Abe, 2001 MT 260, 307 Mont. 233, 37 P.3d

77. Fifth, by announcing a new, lesser burden for obtaining relief, we implicate serious
concerns of fairness and equity regarding our resolution of prior claims, particularly those of

Barry Beach. Sixth, we violate the well-established rule, indispensable to the administration

of justice, that a question once deliberately examined and decided should be considered

closed and settled as to further argument, and not subject to a different construction based

upon a different composition of this Court.

¶51    Perhaps the starting point for any discussion should be the Beach II concurrence. I

wrote the Beach II concurrence to clarify the confusion in our law resulting from Beach I,

Tyler, DuBray, Crosby, and Abe. Nothing in the Beach II concurrence “revised” the

standards for evaluating substantive and procedural innocence claims. See Opinion, ¶ 20.

Rather, the Beach II concurrence reaffirmed our prior clear and unmistakable adoption of

Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995), Herrera v. Collins, 506 U.S. 390, 113

S. Ct. 853 (1993), and the corresponding analysis for evaluating post-judgment claims of

newly discovered evidence. Beach II concurrence, ¶¶ 95-96, 105, 119, 123; see State v.

Pope, 2003 MT 330, 318 Mont. 383, 80 P.3d 1232; State v. Redcrow, 1999 MT 95, 294

Mont. 252, 980 P.2d 622.        Moreover, in adopting Schlup and Herrera to guide our

consideration of claims filed pursuant to § 46-21-102(2), MCA, we specifically expanded

our reliance on federal jurisprudence and rejected the argument that our existing

postconviction jurisprudence was sufficient for evaluation of actual innocence claims. See

Pope, ¶ 88 (Rice, J., dissenting). The Court now rejects a test that has been applied since

1999, finding it to be “rigid” and “not suited to the quantum of proof required of a

postconviction relief petitioner seeking relief under § 46-21-102(2).” Opinion, ¶ 32. Aside

                                              23
from the Court’s failure to state what that “quantum of proof” is, it is my opinion that a

higher burden of proof and a clear standard for evaluating post-judgment claims, whether

characterized as “rigid” or not, are necessary to protect the finality of judgments and to

ensure consistent and fair evaluation of claims.

¶52    The distinctions articulated in Montana’s case law between procedural and

substantive claims of actual innocence, and the corresponding burdens of proof, are

well-reasoned and should be maintained. Preliminarily, while a majority of this Court did

indeed agree that “the petitioner must affirmatively and unquestionably establish his

innocence” in order to prevail on a substantive claim of actual innocence, Beach II

concurrence, ¶ 131, we clearly stated that § 46-21-102(2), MCA, also allowed for a

procedural claim of actual innocence, pursuant to Schlup, which imposed a lesser burden on

the petitioner for obtaining relief. We observed that the language in § 46-21-102(2), MCA,

requiring newly discovered evidence that “would establish” that the petitioner did “not

engage in the criminal conduct” for which the petitioner was convicted, appeared to be a

codification by the legislature, although “perhaps not intentionally,” of the substantive claim

of actual innocence in Herrera. Beach II concurrence, ¶ 131. However, nothing in the

Beach II concurrence extinguished the ability to raise, pursuant to § 46-21-102(2), MCA, a

procedural claim of actual innocence under Schlup. Thus, the Court’s conclusion that

requiring the petitioner to “affirmatively and unquestionably establish his innocence” is an

intolerably “rigid test” misconstrues the analysis required by the Beach II concurrence, as it




                                              24
only considers the “extraordinarily high” standard applicable to a substantive claim of actual

innocence.

¶53    When first charged with a crime, a person is entitled to a presumption of innocence

and may insist that his guilt be proven beyond a reasonable doubt. Herrera, 506 U.S. at 398,

113 S. Ct. at 859. Once a defendant has been convicted of the offense with which he has

been charged, he is no longer entitled to the presumption of innocence. Herrera, 506 U.S. at

399, 113 S. Ct. at 860. A presumption of guilt now attaches as a result of his conviction and

strips him of many of the constitutional safeguards attendant to the presumption of

innocence. Although convicted of a crime, a defendant may nevertheless mount a multitude

of challenges to his conviction. One such challenge is a claim of newly discovered evidence

filed pursuant to § 46-21-102(2), MCA. Because the petitioner is no longer cloaked with the

presumption of innocence, however, the existence of newly discovered evidence must be

evaluated in light of the principles guiding our analysis of an alleged constitutional error.

The distinctions drawn by the United States Supreme Court between substantive claims of

actual innocence under Herrera and procedural claims of actual innocence under Schlup are

logical and consistent with fundamental principles of criminal law. If a petitioner has

received an error-free trial, his conviction should rightfully stand, unless he produces

conclusive evidence of his actual innocence. Herrera, 506 U.S. at 417, 113 S. Ct. at 869.

With developments in criminal investigation and forensic evidence, we have recognized that

a petitioner could conceivably offer evidence definitively proving his actual innocence,

irrespective of any constitutional error at his trial or sentencing. Such a substantive or

                                             25
“freestanding” claim of actual innocence was recognized in Herrera, Pope, and Redcrow,

although the showing necessary to establish such a claim was never defined. The Court

stated only that it would be “extraordinarily high” and that the showing would have to be

“truly persuasive,” because when a petitioner makes a substantive, freestanding claim of

actual innocence, he is claiming that he is entitled to relief despite a constitutionally valid

conviction. Herrera, 506 U.S. at 417, 113 S. Ct. at 869; Pope, ¶ 48; Redcrow, ¶ 33.

Accordingly, a Herrera petitioner is entitled to complete exoneration of the charges because

he has conclusively established his actual innocence.

¶54    A petitioner unable to conclusively establish a substantive, freestanding claim of

actual innocence may nevertheless obtain postconviction review of an alleged constitutional

error, if his newly discovered evidence is such that the court cannot have confidence in the

outcome of the trial given the allegation of constitutional error. The constitutional error may

be any that could normally be raised in a petition for postconviction relief, since successfully

raising a “gateway” claim under Schlup entitles the petitioner to review of his constitutional




                                              26
error in a postconviction proceeding.1 In Pope, ¶ 49, we adopted the Schlup analysis and

confirmed that the threshold for a procedural claim of innocence is lower than Herrera and

does not itself provide an independent basis for relief. Most importantly, a Schlup petitioner

faces a lower threshold because he asserts constitutional error at trial, and his conviction is

accordingly not entitled to the same degree of respect as one concededly free of the taint of

constitutional error. Schlup, 513 U.S. at 315-16, 115 S. Ct. at 861. Therefore, a petitioner

asserting both actual innocence and constitutional error has less of a burden than a petitioner

who claims only actual innocence. While a petitioner making a Herrera claim must present

evidence of actual innocence so strong that his sentence would be “‘constitutionally

intolerable’ even if his conviction was a product of a fair trial,” a petitioner making a

procedural claim need only present evidence of innocence strong enough “that a court cannot

have confidence in the outcome of the trial unless the court is also satisfied that the trial was

free of nonharmless constitutional error . . . .” Schlup, 513 U.S. at 316, 115 S. Ct. at 861

(emphasis in original). The Schlup actual innocence inquiry does not concern itself with the

merits of the constitutional error, but is conducted from the perspective of whether, in light



1
 In Pope, ¶ 55, the constitutional error alleged was that the jury had been improperly instructed that
Pope could be found guilty of sexual intercourse without consent with either A.J. or M.J., thus
placing into question Pope’s right to a unanimous verdict. Pope also alleged that prosecutorial
misconduct and ineffective assistance of counsel denied him the right to a fair trial. Pope, ¶ 55.
These allegations of constitutional error were reviewed in a subsequent postconviction proceeding
following this Court’s decision that Pope presented sufficient evidence of his actual innocence to
place in doubt the reliability of his conviction. Pope, ¶ 70. In Redcrow, ¶¶ 35-36, the constitutional
error alleged was ineffective assistance of trial counsel and that her co-defendant was the real killer.
This Court found that Redcrow had not demonstrated her actual innocence in light of her confession
to law enforcement. Redcrow, ¶ 37. In Schlup, the constitutional claim was that the ineffective
assistance of counsel and the withholding of evidence by the prosecution denied him the full
                                                   27
of the newly discovered evidence and if the constitutional error had not occurred, it is more

likely than not that no juror, acting reasonably, would have voted to find the petitioner guilty

beyond a reasonable doubt. Schlup, 513 U.S. at 327-29, 115 S. Ct. at 867-68; Pope, ¶ 58;

Redcrow, ¶ 33.

¶55    The Court states, without proper analysis, that “there would be no reason to compare

the new evidence to the proof of guilt at trial” if a petitioner can “unquestionably establish

his innocence.” Opinion, ¶ 32. However, as the statute correctly recognizes, under either a

substantive, freestanding claim or a procedural claim, the new evidence must always be

compared to the evidence adduced at trial. More to the point, in Herrera, the Court

evaluated Herrera’s substantive, freestanding claim of actual innocence by considering the

affidavits relied upon by Herrera in light of the evidence presented at trial by the prosecution.

The Herrera court remarked that the affidavits were inconsistent with one another, the

affiants were not subject to cross-examination, the individual identified as the guilty party

was deceased, and, for the most part, the affidavits consisted of hearsay. Herrera, 506 U.S.

at 417-18, 113 S. Ct. at 869-70. The Herrera court further noted that at trial, the prosecution

had produced two eyewitness statements and a written statement by Herrera himself, all of

which indicated he was the guilty party. After considering the newly discovered evidence in

light of the evidence produced at trial, the court concluded that Herrera’s showing of

evidence fell far short of that required of a defendant convicted of a crime following a trial

free of constitutional error. Herrera, 506 U.S. at 418-19, 113 S. Ct. at 870. Similarly, in


“panoply of protections afforded to criminal defendants by the Constitution.” Schlup, 513 U.S. at
                                               28
Pope, pursuant to § 46-21-102(2), MCA, this Court considered Pope’s newly discovered

evidence in light of all the evidence produced at trial and concluded that Pope had

established his procedural claim and was entitled to a postconviction proceeding to evaluate

the alleged constitutional error. We stated:

       The complete DNA report tends to deflate the State’s evidence that Pope had
       intercourse with M.J. While it does not exclude the possibility that he had
       intercourse with M.J., he cannot be included as a sperm donor based upon the
       DNA results. The DNA results indicate the presence of a third unknown
       party. Streeter testified that the unknown party, whose presence is indicated
       by the DNA test, could have been the type A blood source that Long attributed
       to Pope. Moreover, in light of the DNA evidence, Long’s testimony and blood
       type testing is inconclusive. The DNA evidence topples the State’s theory
       presented to the jury: “If you find that there was a substance in the vaginal
       fluid and in the panties, that had drained into the panties, you are going to find
       that that - - of the blood testing was done, the only possible contributor for that
       is the defendant, Vance Pope.”

Pope, ¶ 60. Thus, this Court is simply wrong when we state that “there would be no reason

to compare the new evidence to the proof of guilt at trial.” Opinion, ¶ 32. Certainly, newly

discovered evidence for both a substantive, freestanding claim of actual innocence or a

procedural claim of actual innocence must always be evaluated in the context of the evidence

adduced at trial. This is the only way of determining the significance and relevance of the

new evidence. When the Montana Legislature enacted § 46-21-102(2), MCA, in 1997,

Schlup and Herrera had already been decided. The statutory requirement that the newly

discovered evidence be “viewed in light of the evidence as a whole” is a codification of

Schlup and Herrera.




314, 115 S. Ct. at 860.
                                               29
¶56    In my opinion, the principles articulated in Schlup, Herrera, Pope, and Redcrow are

sound and in harmony with the important public policy of ensuring finality of state court

judgments, which serves both the State’s goal of rehabilitating criminal defendants and the

State’s legitimate punitive interests. To upset these principles and to remove an analytical

framework allowing consistent evaluation of newly discovered evidence—not only

consistent among the various trial courts, but consistent with rules and presumptions inherent

in our criminal law—is to unsettle the expectations of consistency and finality held by

victims, petitioners, and the State.

¶57    We state we are announcing a new “statutory test” and take comfort in the fact that we

are only stating the rule as it has been written by the legislature. However, we have provided

no guidance to the district courts and have again changed the rules in a complicated area of

jurisprudence, despite attempts made by the Beach II concurrence to clarify those rules. We

have failed to recognize consistent and well-reasoned Montana case law recognizing

distinctions in claims, burdens of proof, and constitutional error regarding post-judgment

claims of newly discovered evidence. We arguably have created issues concerning fairness

and equity between those claims previously decided under the more “rigid” test and those

now to be decided under a test “suited to the quantum of proof required of a postconviction

relief petitioner”—whatever that means. Finally, Clark considerations are inappropriate to a

post-judgment claim of newly discovered evidence. While I agree Tyler, DuBray, and

Crosby should be overruled to the extent that they applied Clark to post-judgment claims of

newly discovered evidence, and concur in that portion of the Opinion, I would not

                                             30
simultaneously reinject Clark as “guidance” for the district courts in considering these

claims. At the risk of being too brazen, this appears slightly inconsistent.

¶58    I dissent.

                                                  /S/ LAURIE McKINNON




                                             31
