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                                                         No. 97-430 and 98-231



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                               1999 MT 65N




STATE OF MONTANA,

Plaintiff and Respondent,

v.

JOHN G. FAIRSERVICE, SR.,

Defendant and Appellant.




APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Thomas M. McKittrick, Judge presiding.




COUNSEL OF RECORD:




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For Appellant:



John G. Fairservice, Sr., Deer Lodge, Montana (pro se)



For Respondent:



Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Montana; Brant
Light, Cascade County Attorney, Great Falls, Montana




                                                                                             Submitted on Briefs: November 24, 1998



Decided: April 1, 1999

Filed:




__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1. Pursuant to Section I, Paragraph 3(c), 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

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Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2. John G. Fairservice, Sr., Petitioner herein, appeals from the order of the Eighth
Judicial District Court , Cascade County, denying his third petition for
postconviction relief on the grounds that the petition did not state a claim for relief.

¶3. Petitioner has presented nine issues on appeal. We find the dispositive issue to be:

¶4. Did the District Court err when it dismissed Petitioner's request for postconviction
relief because of newly discovered evidence?


¶5. This is Petitioner's third request to this Court to overturn his 1991 conviction.
Petitioner was convicted pursuant to a plea agreement which provided that the
attempted deliberate homicide charge would be dismissed and the burglary charge
amended to aggravated burglary as provided in § 45-6-204(2)(b), MCA. At his
sentencing, Petitioner signed an acknowledgment of waiver of right by plea of guilty.
The court conducted a thorough inquiry, as did Petitioner's attorney, concerning the
voluntariness of Petitioner's plea, after which the court accepted Petitioner's plea of
guilty. Petitioner was sentenced to a term of twenty years in the Montana State
Prison, with ten years suspended, and an additional term of ten years for use of a
weapon, both terms to run consecutively. Petitioner was designated a non-dangerous
offender for parole eligibility purposes. He did not appeal that conviction.

¶6. On August 1, 1991, Petitioner filed his first postconviction petition with this
Court setting forth the following grounds for relief: (1) his sentence was based on
erroneous prejudicial information; (2) his guilty plea was not voluntary or
intelligent; (3) he did not receive effective assistance of counsel; and (4) the court
improperly ordered restitution. This Court denied the first three grounds for relief
and remanded the case to the District Court for a determination of the effect of
restitution on any insurance payments. The effect of the order was to deny the
petition for postconviction relief.

¶7. Petitioner's second petition for further appellate review was by way of a request
that the Court consider an appeal from Petitioner's sentence of May 3, 1991, or in the
alternative, a petition for writ of habeas corpus, or in the alternative, a petition for

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postconviction relief. The Court denied the appeal on the grounds that the time for
appeal had long since passed. The Court further determined that the request for
postconviction relief was denied because it had already been considered and denied
in 1991 and could not be considered again. The Court treated the petition as a
petition for writ of habeas corpus and ordered the State to respond. Following
briefing, this Court dismissed the petition on grounds that the claims related to the
validity of the conviction and were not properly the subject of a habeas corpus
action.

¶8. Petitioner then filed with this Court a motion for a delayed evidentiary hearing
due to newly discovered evidence. This Court dismissed the motion because it did not
relate to any matter pending with this Court. Meanwhile, the District Court
indicated it would treat Petitioner's motion as a petition for postconviction relief and
ordered the State to respond. The court ultimately dismissed the petition for failure
to state a claim.

¶9. Petitioner thereafter filed this appeal alleging the following: (1) the district court
judge committed ethical violations in his handling of Petitioner's cases; (2) the
district court judge is biased and should not have considered the postconviction
petition because he was the judge who imposed the sentence; (3) a forensic report
was wrongly suppressed at the sentencing hearing in April 1991; (4) Petitioner's
reputation was ruined by hearsay evidence admitted at sentencing; (5) Petitioner's
plea bargain was coerced; and (6) newly discovered evidence mandates a new trial.

¶10. Did the District Court err when it dismissed Petitioner's request for postconviction
relief because of newly discovered evidence?


¶11. Montana's postconviction statute allows only one opportunity for a convicted
person to collaterally attack a conviction via postconviction relief:

Waiver of grounds for relief. (1) All grounds for relief claimed by a Petitioner under 46-
21-101 must be raised in the original or amended petition. Those grounds for relief not
raised are waived unless the court on hearing a subsequent petition finds grounds for relief
that could not reasonably have been raised in the original or amended petition.




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Section 46-21-105, MCA (1991). See Blaney v. Gamble (1994), 266 Mont. 51, 52-53, 879
P.2d 51, 52-53. In addition, § 46-21-102, MCA (1991), requires that a petition for
postconviction relief be filed within five years of the date of conviction. A defendant may
not avoid application of these procedural rules by denominating the petition something
other than a petition for postconviction relief. See State v. Howard (1997), 282 Mont. 522,
938 P.2d 710. So long as the claims concern the validity of the underlying conviction, they
are properly considered claims for postconviction relief. Howard, 282 Mont. at 526-27,
938 P.2d at 712-13.

¶12. This is Petitioner's third attempt to challenge the validity of his underlying
conviction and sentence. The first attempt was in 1991 via a postconviction petition.
The second attempt was in 1996 via what this Court deemed a habeas corpus
petition. To the second attempt, the Court specifically held that Petitioner had
already exhausted his right to pursue postconviction relief and refused to address
Petitioner's claims which challenged the validity of his 1991 conviction.

¶13. The present appeal is based on a successive petition which is barred by § 46-21-
105(1), MCA (1991). The petition is also outside the five-year statute of limitations
imposed by § 46-21-102, MCA (1991). Petitioner cannot avoid these procedural
mandates by entitling his petition as a "Motion for a Delayed Evidentiary Hearing
Because of Just Recently Discovered New Evidence in Cause No. CDC-90-236a."

¶14. Petitioner's claim of newly discovered evidence does not excuse his procedural
default. He has not presented this Court with any newly discovered evidence. He
argued in District Court that searches of his property conducted in 1993 in
connection with the homicide investigation of Dolanna Clark violated his rights. The
District Court concluded that these allegations did not state a claim for relief in this
proceeding.

¶15. In a postconviction proceeding, this Court reviews the lower court's conclusions
of law for correctness. State v. Sullivan (1997), 285 Mont. 235, 239, 948 P.2d 215, 218.
Even though the 1993 searches took place after the resolution of Petitioner's original
postconviction petition, Petitioner filed numerous subsequent pleadings both in state
court and in federal court and never mentioned this "newly discovered evidence."
While this Court may consider claims based on newly discovered evidence which
could not have been discovered earlier and which threaten to undermine the validity
of the State's conviction, there must be more than mere allegations concerning an


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unrelated investigation. Petitioner fails to make any connection between the 1993
searches and his 1991 conviction, which was obtained upon a plea of guilty. Further,
he does not set forth any reason why the evidence was not presented earlier in his
1996 effort to challenge his conviction. This Court has already determined the
validity of Petitioner's 1991 conviction and sentence in an original postconviction
action and Petitioner's present efforts are an abuse of process.

¶16. The District Court correctly determined that the petition failed to state a claim
for relief. Petitioner's petition is untimely, it does not allege newly discovered
evidence to warrant review, and it is a successive attempt to challenge a conviction
that has already been determined valid.

¶17. The order of dismissal by the District Court is affirmed.




/S/ WILLIAM E. HUNT, SR.


We Concur:


/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART




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