                                                                                              04/18/2017


                                          DA 16-0167
                                                                                         Case Number: DA 16-0167

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 90N



KEITH EUGENE DOYLE,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Second Judicial District,
                       In and For the County of Silver Bow, Cause No. DV-15-360
                       Honorable Kurt Krueger, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Keith Eugene Doyle (Self-Represented), Shelby, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                       Attorney General, Helena, Montana

                       Eileen Joyce, Silver Bow County Attorney, Butte, Montana



                                                   Submitted on Briefs: March 22, 2017

                                                              Decided: April 18, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Michael E Wheat 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     Keith Eugene Doyle (Doyle) appeals from the February 12, 2016 order of the

Second Judicial District Court, Silver Bow County, denying his petition for postconviction

relief (PCR).    In January 2005, a jury convicted Doyle of Deliberate Homicide by

Accountability and the District Court sentenced him to 65 years in the Montana State

Prison. Doyle filed an appeal with the Montana Supreme Court1 and, on May 31, 2007,

this Court affirmed his conviction in State v. Doyle, 2007 MT 125, 337 Mont. 308, 160

P.3d 516. In October 2007, Doyle filed his first PCR petition with the District Court

(DV 07-280), raising numerous ineffective assistance of counsel claims based on the same

evidentiary issues raised in his appeal. In April 2008, the court dismissed the petition,




       1
          In his appeal, Doyle raised six issues: 1) whether the State violated Doyle’s right to a
speedy trial; 2) whether the District Court violated Doyle’s Sixth Amendment right to
confrontation by limiting his cross examination of the State's witness; 3) whether sufficient
credible evidence existed to support Doyle’s conviction of deliberate homicide by accountability;
4) whether the District Court properly denied Doyle’s instruction for lesser included offenses of
criminal endangerment and negligent homicide; 5) whether the District Court properly instructed
the jury on the elements of “purposely” and “knowingly”; and 6) whether the District Court abused
its discretion in denying Doyle’s motion for mistrial. State v. Doyle, 2007 MT 125, ¶¶ 3-8, 337
Mont. 308, 160 P.3d 516.
                                                 2
finding that his claim was barred under § 46-21-105(2), MCA.2 Doyle appealed the District

Court’s denial of his PCR petition to the Montana Supreme Court and, in April 2009, this

Court denied his appeal. Doyle filed, and the District Court denied, his second PCR

petition in July 2013. Doyle did not appeal the court’s denial of his second PCR petition.

In both 2008 and 2013, Doyle also filed petitions for writ of habeas corpus with this Court,

which we subsequently denied.3

¶3        On October 6, 2015, Doyle filed his third PCR petition in the District Court

(DV 15-360). The court denied Doyle’s petition as untimely because it was filed more

than one year after his conviction became final. The court also found that Doyle’s newly

discovered evidence claims failed under § 46-21-102(2), MCA, and that his third petition

was procedurally barred under § 46-21-105(1)(b), MCA. Doyle now appeals the District

Court’s denial of his 2015 PCR petition.

¶4        We review a district court’s denial of a PCR petition to determine if the court’s

findings of fact are clearly erroneous and if its conclusions of law are correct. McGarvey



2
    Section 46-21-105(2), MCA, provides:
                  (2) When a petitioner has been afforded the opportunity for a direct appeal
          of the petitioner’s conviction, grounds for relief that were or could reasonably have
          been raised on direct appeal may not be raised, considered, or decided in a
          proceeding brought under this chapter. Ineffectiveness or incompetence of counsel
          in proceedings on an original or an amended original petition under this part may
          not be raised in a second or subsequent petition under this part.
          3
         In denying his 2008 and 2013 habeas corpus petitions, we stated that “habeas corpus is
not available to attack the validity of a conviction of a person who has been adjudged guilty of an
offense and has exhausted the remedy of appeal.” Doyle v. O’Fallon, No. OP 08-0628, 2009 Mont.
LEXIS 246, at *2; Doyle v. Frink, No. OP 13-0290, 2013 Mont. LEXIS 290, at *2-3 (citing
§ 46-22-101, MCA). Doyle also filed several petitions for habeas corpus in federal district court,
which were subsequently denied.
                                                   3
v. State, 2014 MT 189, ¶ 14, 375 Mont. 495, 329 P.3d 576. We review de novo a district

court’s interpretation and application of a statute. Dick Irvin, Inc. v. State, 2013 MT 272,

¶ 18, 372 Mont. 58, 310 P.3d 524.

¶5     Section 46-21-102(1), MCA, provides that a PCR petition must be filed within one

year of the date that the conviction becomes final. If an appeal is taken to this Court, then

a conviction becomes final when the time for petitioning the United States Supreme Court

for review expires. Section 46-21-102(1)(b), MCA. Under Sup. Ct. R. 13(1), the time for

seeking review in the United States Supreme Court expires 90 days after the entry of the

judgment or order sought to be reviewed. Section 46-21-102(2), MCA, provides an

exception to the one-year time limit of § 46-21-102(1), MCA:

       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.

Section 46-21-102(2), MCA (emphasis added); see Marble v. State, 2015 MT 242, ¶ 36,

380 Mont. 366, 355 P.3d 742; Wilkes v. State, 2015 MT 243, ¶ 15, 380 Mont. 388, 355

P.3d 755. Finally, a district court must dismiss “a second or subsequent petition by a person

who has filed an original petition unless the second or subsequent petition raises grounds

for relief that could not reasonably have been raised in the original or an amended original

petition.” Section 46-21-105(1)(b), MCA.




                                             4
¶6     In this case, we affirmed Doyle’s conviction on May 31, 2007, and Doyle did not

seek review of our decision in the United States Supreme Court. Thus, because Doyle’s

conviction became final on August 29, 2007, and he did not file his third PCR petition until

2015, the petition is time barred under § 46-21-102(1), MCA.

¶7     Regarding Doyle’s newly discovered evidence claim, we agree with the District

Court’s assessment that the evidence he presents here “is a purely legal argument

concerning the procedure by which he was charged. . . .” As such, we conclude that Doyle

fails to allege the existence of newly discovered evidence because the evidence he provides

would not establish that he did not engage in the criminal conduct for which he was

convicted.

¶8     Further, after reviewing the third petition and the record in this case, we conclude

that the grounds for relief upon which Doyle relies reasonably could have been raised in

his first PCR petition and are thus procedurally barred. In sum, because Doyle did not

appeal his third PCR petition within 90 days of our decision affirming his conviction, and

because Doyle’s arguments in his third PCR petition were or could have been raised in his

first petition, we conclude that the District Court did not err in dismissing his PCR petition.

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

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review. The District Court’s interpretation and application of the

law was correct.


                                              5
¶10   Affirmed.


                           /S/ MICHAEL E WHEAT


We Concur:

/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE




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