                                                                                           May 13 2008


                                           DA 07-0309

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2008 MT 172N



JAMES M. WARREN,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:          District Court of the First Judicial District,
                      In and For the County of Lewis and Clark, Cause No. ADV 06-887
                      Honorable Dorothy McCarter, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                      James M. Warren (Pro Se), Shelby, Montana

              For Appellee:

                      Hon. Mike McGrath, Attorney General; Mark W. Mattioli, Assistant
                      Attorney General, Helena, Montana

                      Leo Gallagher, Lewis and Clark County Attorney; Tara Harris, Deputy
                      County Attorney, Helena, Montana



                                                            Submitted on Briefs: April 24, 2008

                                                                       Decided: May 13, 2008

Filed:

                      __________________________________________
                                        Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be cited

as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and

its case title, Supreme Court 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     Appellant James Michael Warren (Warren), proceeding pro se, appeals the District

Court’s order denying his petition for postconviction relief. We affirm.

¶3     Warren was convicted of two counts of felony assault with a weapon and one count of

felony criminal mischief. This Court affirmed his conviction on direct appeal on November

29, 2005, in State v. Warren, 2005 MT 300N, 330 Mont. 399, 126 P.3d 506.

¶4     Warren filed a petition for postconviction relief on December 11, 2006. He asserted

four claims: 1) ineffective assistance of counsel; 2) malicious prosecution and “biased

judicial activism;” 3) due process violations; and 4) actual innocence. The District Court

denied relief with respect to Warren’s ineffective assistance claim based upon Warren’s

failure to prove that his counsel had been ineffective or that Warren had suffered any

prejudice from this alleged ineffectiveness.     The court rejected Warren’s malicious

prosecution claim based on Warren’s failure to provide factual support and on the basis that

the claim was procedurally barred. The court similarly determined that Warren had failed to

present any facts in support of his due process claim and that the claim lacked merit. The

court finally determined that Warren’s actual innocence claim was procedurally barred in



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light of the fact that Warren, in essence, sought to pursue a sufficiency of evidence claim that

should have been pursued on direct appeal. Warren appeals.

¶5      Warren makes conclusory allegations regarding his counsel’s actions during trial. He

further provides unsubstantiated allegations regarding the malicious prosecution claim, the

due process claim, and his actual innocence claim. We review a district court’s denial of a

petition for postconviction relief to determine whether the district court’s findings of fact are

clearly erroneous and whether its conclusions of law are correct. Hartinger v. State, 2007

MT 141, ¶ 19, 337 Mont. 432, ¶ 19, 162 P.3d 95, ¶ 19. A petitioner seeking to reverse a

district court’s denial of a petition for postconviction relief “‘bears a heavy burden.’”

Garrett v. State, 2005 MT 197, ¶ 10, 328 Mont. 165, ¶ 10, 119 P.3d 55, ¶ 10 (quoting State v.

Cobell, 2004 MT 46, ¶ 14, 320 Mont. 122, ¶ 14, 86 P.3d 20, ¶ 14). We have determined to

decide this case pursuant to Section I, Paragraph 3(d), of our 1996 Internal Operating Rules,

as amended in 2003, that provide for memorandum opinions. It is manifest on the face of the

briefs and record before us that Warren has failed to prove that the District Court’s findings

of fact were clearly erroneous and that its legal conclusions were incorrect. Warren has

failed to carry his very heavy burden seeking to reverse the District Court’s order. Garrett,

¶ 10.

¶6      We affirm.

                                                    /S/ BRIAN MORRIS


We Concur:

/S/ KARLA M. GRAY
                                               3
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JOHN WARNER




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