Coleman v. State, 81-115

• Citation: 38 St.Rep. 1352,194 Mont. 428,633 P.2d 624
• Decision Date: 28 September 1981
• Docket Number: No. 81-115,81-115
• Parties: Dewey Eugene COLEMAN, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.
• Court: United States State Supreme Court of Montana

Page 624

633 P.2d 624

194 Mont. 428

Dewey Eugene COLEMAN, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.

No. 81-115.

Supreme Court of Montana.

Submitted April 29, 1981.

Decided Aug. 28, 1981.

Rehearing Denied Sept. 28, 1981.

Page 626

[194 Mont. 431] Moses Law Firm, Billings, Charles Moses, argued, Billings, for petitioner and appellant.

Mike Greely, argued, Atty. Gen., Helena, John Maynard, argued, Asst. Atty. Gen., Helena, John S. Forsythe, argued, County Atty., Forsyth, for respondent and respondent.

HARRISON, Justice.

Coleman appeals from a Rosebud County District Court dismissal of his petition for post-conviction relief. Title 46, Chapter 21, Montana Code Annotated.

None of the issues presented by petitioner on this appeal are based in the underlying facts of the criminal cause. Therefore, the facts surrounding Coleman's conviction for the death of Peggy Lee Harstad will not be recited. A full text of these facts can be found in our decision of an earlier appeal, State v. Coleman (1978), 177 Mont. 1, 579 P.2d 732. Operative procedural facts will be discussed with reference to specific issues offered by the petitioner.

Petitioner Coleman presents eight issues for resolution by this Court:

[194 Mont. 432] 1. Is post-conviction relief a new civil action or a continuation of the previous criminal cause?

2. Should the judge have recused himself when his testimony is required as to certain claimed violations?

3. Is petitioner not entitled to post-conviction relief because he has been sentenced to death?

4. Are claims of constitutional violations barred by res judicata because they were decided in earlier Coleman appeals?

5. Were thirteen of Coleman's constitutional claims properly dismissed because "they include vague new allegations, they are too vague to state new claims, or are unsupported by authority and therefore barred by res judicata"?

6. Were seven of Coleman's constitutional claims properly dismissed because the "new authority cited is either inapplicable to petitioner's case or clearly distinguishable from it leaving the claims barred by res judicata"?

7. Were five of Coleman's constitutional claims waived "because he failed to raise them in his direct appeal and because they are without merit"?

I. POST-CONVICTION RELIEF AS CIVIL OR CRIMINAL ACTION

This Court recognizes the unique nature of the post-conviction remedy. Montana law does not label the proceeding as either civil or criminal, although the chapter providing post-conviction relief is in the criminal procedure title. Title 46, Chapter 21, Montana Code Annotated.

The Montana provisions of section 46-21-101 et seq., MCA, are derived from the Uniform Post Conviction Procedure Act and are essentially similar to the federal statute (28 U.S.C. § 2255). The federal courts have consistently held that an action under 28 U.S.C. § 2255 is a civil action, independent of the original criminal conviction. See Heflin v. United States (1959), 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407. The same rule has been adopted in other states which have adopted the uniform act. Clark v. State (1969), 92 Idaho 827, 452 P.2d 54.

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In those states with similar provisions not necessarily deriving from the uniform act, the courts have been consistent in their view that post-conviction relief is civil in nature and independent of the criminal action. State v. Hannagan (Alaska 1977), 559 P.2d 1059; [194 Mont. 433] Noble v. State (1973), 109 Ariz. 537, 514 P.2d 458; State v. Richardson (1965), 194 Kan. 471, 399 P.2d 799; Smith v. State (1968), 79 N.M. 450, 444 P.2d 961; Noble v. Sigler (8th Cir. 1965), 351 F.2d 673, cert. denied, 385 U.S. 853, 87 S.Ct. 98, 17 L.Ed.2d 81, (held only that post-conviction applications are civil in nature); People v. Jones (1975), 30 Ill.App.3d 706, 332 N.E.2d 411; State v. Smith (Mo.1959), 324 S.W.2d 707; Tolar v. State (Fla.App.1967), 196 So.2d 1.

Clearly, this is not intended to be another form of appeal from a criminal case, but a separate civil action aimed at vacating, setting aside or correcting a sentence. There is no Montana case interpreting the nature of the post-proceeding petition, but the proceeding could be closely analogized to that seeking a writ of habeas corpus which this Court decided in 1927 was an independent civil proceeding. August v. Burns (1927), 79 Mont. 198, 213, 255 P. 737, 741.

It is important to note that we do not here intend to erode the fundamental principle discussed below that the sentencing court is the proper court for the post-conviction petition. We are mindful that a party to a civil action is entitled to two substitutions of presiding judges. Section 3-1-801, subd. 4, MCA (adopted by order of this Court on December 29, 1976, 34 St.Rep. 26). However, because an applicant for post-conviction relief is directed by the more specific provisions of the post-conviction statute to bring the petition in this Court or in the court that sentenced him, we find that the two judge disqualification grant of section 3-1-801, subd. 4, MCA, is unavailable to the post-conviction petitioner. In Montana, when a general statute is in conflict with a specific act, the specific statute will take precedence. Section 1-2-102, MCA; In re Coleman's Estate (1957), 132 Mont. 339, 317 P.2d 880.

We hold that the Montana post-conviction relief procedure is civil in nature and independent of the underlying criminal cause. We will proceed to consider the issues raised on the appeal to this Court. Coleman contends that it was error to deny various of his requests without an evidentiary hearing. It is not error to deny an application for post-conviction relief without an evidentiary hearing if the allegations are without merit or would otherwise not entitle the petitioner to relief. Clark v. State, supra; Tramel v. State (1968), 92 Idaho 643, 448 P.2d 649; Donnelly v. State (Alaska 1973), 516 P.2d 396 (allegations in post-conviction petition were too vague and illusory to warrant evidentiary hearing); Widermyre v. State (Alaska 1969), 452 P.2d 885; People v. Lyons (1978), 196 Colo. 384, 585 P.2d 916; Cook v. State (1976), 220 Kan. 223, 552 P.2d 985.

[194 Mont. 434] The decision to admit or deny an application for post-conviction relief is a discretionary one and one that will not be disturbed by this Court absent a clear abuse of discretion. Section 46-21-201, MCA; State v. Ybarra (1974), 22 Ariz.App. 330, 527 P.2d 107; Brudos v. Cupp (1977), 31 Or.App. 25, 569 P.2d 680; Sullivan v. State (1977), 222 Kan. 222, 564 P.2d 455.

II. RECUSAL OF THE SENTENCING JUDGE

Coleman next maintains that the district judge should have recused himself as presiding judge over his petition for post-conviction relief in light of the fact that he was the sentencing judge. Petitioner observes that in a post-conviction proceeding, the sentencing judge would likely be called to testify as to, inter alia, the propriety of the death sentence. Citing 46 Am.Jur.2d Judges, § 91 at 158, Coleman submits that a judge should excuse himself as a matter of course if it appears that he may be called as a witness. We disagree.

Coleman fails to recognize the compelling purpose and policy considerations behind that portion of the statute (section 46-21

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-103, MCA) which directs that a petition for post-conviction relief be filed in either the court of conviction or this Court. See also section 46-21-101, MCA ("may petition the court which imposed the sentence ...")

Historically, having the sentencing judge preside at the subsequent proceeding has been earnestly advocated for the following reasons: (1) it reduces the burden on the District Court at the place of confinement; (2) it reduces the cost of the proceeding since most of the witnesses likely to be called are probably in the locale where the trial occurred; and, (3) the convicting court is more familiar with the totality of the facts and circumstances surrounding the case. Commissioners' Comment, 11 U.L.A. Post Conviction Procedure § 3 (1974). Still another important consideration was enunciated by Idaho Supreme Court Justice Donaldson in Still v. State (1974), 95 Idaho 766, 519 P.2d 435, 437:

"Although it doesn't matter whether the proceeding is denominated as one for habeas corpus or for post-conviction relief, it is still necessary that the procedures of the Uniform Post-Conviction Procedure Act be followed. The Act was designed to give the district court which made the initial determinations a chance to correct any mistakes or irregularities that occurred in that court. In addition, that court has before it all the facts required to make such a determination. Therefore, the application or petition for relief must be filed in the district court where the conviction occurred. I.C. [194 Mont. 435] § 19-4902." (Emphasis added.)

This Court is also of the view that the post-conviction court judge should only recuse himself if the petitioner shows that the judge is the source of material evidence otherwise unobtainable. A trial judge's familiarity with a case does not automatically make him a material witness in post-conviction proceedings. Bresnahan v. Luby (1966), 160 Colo. 455, 418 P.2d 171, 22 A.L.R.3d 1193. The Bresnahan court also emphasized the importance of the trial judge's familiarity with the criminal case which is being collaterally attacked by the civil action. The case at bar involved thousands of pages of testimony, briefs, motions and trial court records. We are mindful of the delay and burden on the efficient administration of justice which would occur if another judge were required to familiarize himself or herself with this record for the purposes of a post-conviction evidentiary hearing. Such delay can only be justified by the strongest showing of materiality and unavailability of evidence sought to be adduced from the sentencing judge.

In this case, petitioner never makes it entirely clear to this Court just what testimony he hoped to...