                                           No. 02-083

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 252N


ROBERT BRIMER,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:         District Court of the Tenth Judicial District,
                     In and for the County of Fergus,
                     The Honorable E. Wayne Phillips, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Robert Brimer (pro se), Shelby, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Carol E. Schmidt,
                     Assistant Attorney General, Helena, Montana

                     Thomas Meissner, Fergus County Attorney, Lewistown, Montana


                                               Submitted on Briefs: June 27, 2002

                                                          Decided:       November 21, 2002

Filed:

                     __________________________________________
                                       Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), of the Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent but shall be filed as a

public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number, and result, to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     The Appellant, Robert Brimer, filed a petition for postconviction relief in the District

Court for the Tenth Judicial District in Fergus County. In his petition, Brimer alleged that

numerous errors, in both the pre-trial and trial phases of his case, contributed to his

conviction. The Respondent, State of Montana, asserted that pursuant to § 46-21-102(1),

MCA, Brimer’s petition was untimely because it was not filed within one year of the date his

conviction became final. The District Court agreed and dismissed Brimer’s petition. Brimer

appeals, and asks that counsel be appointed to represent him. We affirm the judgment of the

District Court.

¶3     We restate the sole issue on appeal as follows:

¶4     Is Brimer’s petition for postconviction relief barred by the statute of limitations found

at § 46-21-102(1), MCA?

                               FACTUAL BACKGROUND

¶5     Robert Brimer was convicted of Obstructing a Peace Officer, in violation of § 45-7-

302 (1997), Partner or Family Member Assault, in violation of § 45-5-206, MCA (1997), and

Felony Assault, in violation of § 45-5-202, MCA (1997), on September 8, 1999. On October

26, 1999, the District Court sentenced Brimer to the Department of Corrections for two

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concurrent five-year periods and imposed a six-month sentence which was suspended.

¶6     In April of 2001, Brimer petitioned this Court for a writ of habeas corpus. Brimer

alleged in his petition that: (1) his confession was coerced; (2) he received ineffective

assistance of counsel; (3) prosecutorial misconduct led to his conviction; (4) the jury was

unconstitutionally selected and impaneled; and (5) his arrest was unlawful. We declined to

address the substance of Brimer’s claims. We concluded that his claims attacked the validity

of his convictions, and were not properly brought in a writ of habeas corpus. Brimer also

filed a similar petition for writ of habeas corpus in the United States District Court for the

District of Montana in Great Falls. The Honorable Sam E. Haddon concluded that Brimer

had failed to exhaust his state remedies and dismissed the petition on August 23, 2001.

¶7     Brimer re-filed his petition for writ of habeas corpus with this Court on October 4,

2001. In his re-filed petition, Brimer requested that we appoint counsel to assist him with the

issues raised in his original petition for writ of habeas corpus. We denied Brimer’s re-filed

petition on November 27, 2001, and noted that, pursuant to § 46-21-101(1), MCA, the proper

form by which to present his claims was a petition for postconviction relief. We further

noted that a petition for postconviction relief must be filed in the district court in the county

where the sentence was imposed, pursuant to § 46-21-101(2), MCA. Therefore, we ordered

that Brimer’s petition be forwarded to the Tenth Judicial District Court in Fergus County,

with a filing date of October 4, 2001, for further consideration of his claims.

¶8     On December 3, 2001, the State filed a motion in the District Court to dismiss

Brimer’s petition for postconviction relief. The State asserted that Brimer failed to file his

petition for postconviction relief within one year of the date his conviction became final, as

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required by § 46-21-102(1), MCA.            The District Court found Brimer’s petition for

postconviction relief to be untimely, and dismissed the petition on December 7, 2001.

Brimer appealed the District Court’s dismissal of his petition on January 2, 2002.

                                 STANDARD OF REVIEW

¶9     The standard of review of a district court's denial of a petition for postconviction relief

is whether the district court's findings of fact are clearly erroneous and whether its

conclusions of law are correct. State v. Wright, 2001 MT 282, ¶ 9, 307 Mont. 349, ¶ 9, 42

P.3d 753, ¶ 9.

                                         DISCUSSION

¶10    Is Brimer’s petition for postconviction relief barred by the statute of limitations found

at § 46-21-102(1), MCA?

¶11    The District Court found that Brimer’s petition for postconviction relief was

procedurally barred by the statute of limitations provided in § 46-21-102(1), MCA. On

appeal, Brimer contends that the District Court erred by not addressing the merits of his

petition. Brimer also asserts that the issues raised in his petition were sufficient to satisfy the

“interests of justice” requirement of § 46-21-201(2), MCA. Section 46-21-201(2), MCA,

provides that: “If the death sentence has not been imposed and a hearing is required or if the

interests of justice require, the court shall appoint counsel for a petitioner who qualifies for

the appointment of counsel under Title 46, chapter 8, part 1.” Brimer alleges that the

“interests of justice” require that counsel be appointed to assist him with his petition for

postconviction relief. The State counters that, pursuant to § 46-21-102(1), MCA, the District

Court properly dismissed Brimer’s petition on procedural grounds.

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¶12     Section 46-21-102(1), MCA, provides:

        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.

Subsection (2) of § 46-21-102, MCA, is inapplicable to the facts of the instant case.

¶13     Brimer was sentenced by the District Court on October 26, 1999. Pursuant to Rule

5(b), M.R.App.P., an appeal from a judgment in a criminal case must be filed within sixty

days of the date of the judgement appealed from. Therefore, Brimer had until December 26,

1999, to file an appeal with this Court. Brimer filed no appeal. Therefore, pursuant to

subsection (a) of § 46-21-102(1), MCA, Brimer’s conviction became final on December 26,

1999.

¶14     A petition for postconviction relief “may be filed at any time within 1 year of the date

that the conviction becomes final.” Section 46-21-102(1), MCA. Brimer had until

December 26, 2000, to file a timely petition for postconviction relief. Brimer’s petition for

postconviction relief was filed in the District Court on October 4, 2001, more than nine

months after the statute of limitations had expired. Furthermore, even Brimer’s original

petition for writ of habeas corpus, filed in April of 2001, was filed three months after the

statute of limitations had expired.


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¶15    In State v. Rosales, 2000 MT 89, ¶ 7, 299 Mont. 226, ¶ 7, 999 P.2d 313, ¶ 7, we noted

that: “The postconviction statute of limitations is a jurisdictional limit on litigation and is

waived only when there is a clear miscarriage of justice, one so obvious that the judgment is

rendered a complete nullity.” We have repeatedly held that the “‘miscarriage of justice’

exception does not apply to postconviction claims unless a constitutional violation has

resulted in the conviction of an innocent person or newly-discovered evidence establishes

innocence.” State v. Wright, 2001 MT 247, ¶ 13, 307 Mont. 100, ¶ 13, 38 P.3d 772, ¶ 13. In

this case, there is no evidence before us to indicate that Brimer is actually innocent of the

charges for which he was convicted. Furthermore, Brimer did not specifically assert his

innocence at any point during this appeal. Accordingly, there is no basis upon which we can

conclude that a miscarriage of justice occurred in Brimer’s case.

¶16    Brimer filed his petition for postconviction relief more than nine months after the

statute of limitations found at § 46-21-102(1), MCA, had expired. Therefore, Brimer’s

petition for postconviction relief is barred by the statute of limitations.

¶17    For the foregoing reasons, the judgment of the District Court is affirmed.


                                                           /S/ TERRY N. TRIEWEILER




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We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART




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