Davis v. State

Decision Date24 June 2008
Docket NumberNo. DA 06-0389.,DA 06-0389.
Citation344 Mont. 300,187 P.3d 654,2008 MT 226
PartiesGeorge H. DAVIS, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
CourtMontana Supreme Court

For Appellant: William Boggs, Attorney at Law, Missoula, Montana.

For Appellee: Hon. Mike McGrath, Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana, George Corn, Ravalli County Attorney, Hamilton, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 George H. Davis (Davis) appeals from the order of the Twenty-First Judicial District Court, Ravalli County, denying his motion to toll on equitable grounds the one-year time bar on post-conviction relief. We reverse and remand with instructions.

¶ 2 We review the following issue on appeal:

¶ 3 Did the District Court correctly deny Davis's motion to toll on equitable grounds the one-year time bar in § 46-21-102, MCA, so that Davis could file a petition for post-conviction relief?


¶ 4 Davis fled Ennis in a 1991 Ford Taurus after shooting seven people in the early morning hours of June 14, 2003. Madison County authorities immediately broadcast an "attempt to locate" Davis to all State and regional law enforcement. Ravalli County Sheriff's Deputy Bernie Allestad (Deputy Allestad) clocked Davis's car traveling at a high rate of speed, six hours after the shooting, just south of Florence. Deputy Allestad did not recognize Davis's car as the Taurus described in the "attempt to locate" bulletin, however, until he had pulled the car over and was reading the license plate to his dispatcher. Deputy Allestad looked up from the license plate to discover that Davis had gotten out of his car, and was rapidly approaching Deputy Allestad's patrol car with a pistol in his hand. Davis opened fire on Deputy Allestad, wounding him in the shoulder, and initiating a prolonged gun battle that ended with Davis again fleeing the scene with police in close pursuit. Idaho and Montana authorities later nabbed Davis at the Montana-Idaho border after a violent, high-speed car chase.

¶ 5 The State filed an information in Ravalli County on April 1, 2004, charging Davis with various offenses committed during his gunfight with Deputy Allestad, including (1) attempted deliberate homicide, a felony, in violation of §§ 45-4-103, 45-5-102, MCA (Count I); (2) assault on a peace or judicial officer, a felony, in violation of § 45-5-210, MCA (Count II); and (3) criminal endangerment, a felony, in violation of § 45-5-207, MCA, (Count III). Davis appeared with his trial counsel, Mark McLaverty (McLaverty), at his April 22, 2004, arraignment and entered a plea of not guilty to these charges. Davis subsequently entered into a plea agreement with the State on September 30, 2004. The plea agreement stated that Davis would plead guilty to all charges in the information and waive his right to withdraw the guilty plea, or to challenge his sentence via direct appeal, habeas corpus, or post-conviction relief. The plea agreement also stated that Davis agreed that by pleading guilty to Count I he could be punished by life imprisonment without parole, or by imprisonment in the Montana State Prison for a term of not fewer than 10 years or more than 100 years. The plea agreement stated that Davis acknowledged that the State was free to argue, and the court was free to impose, the maximum judgment allowed by the law. The State agreed that any judgment imposed by the court on Counts II and III would run concurrently with the judgment imposed on Count I.

¶ 6 Davis entered his plea of guilty to all charges on September 30, 2004. The court immediately proceeded to sentencing. The court sentenced Davis on Count I to life imprisonment without the possibility of parole, to run consecutively with any other sentence. The court sentenced Davis to 10 years in Montana State Prison on Count II, and 10 years in Montana State Prison for Count III, both to run concurrently with the sentence for Count I. Davis did not appeal his sentence.

¶ 7 Davis filed a pro se motion for appointment of counsel for post-conviction proceedings on September 28, 2005. The court issued a minute entry on October 3, 2005, stating that the court had received Davis's motion and that McLaverty remained as Davis's appointed counsel. Neither Davis nor McLaverty received notice, however, that McLaverty had been reassigned as Davis's counsel for the post-conviction proceedings. Davis later was appointed counsel, William Boggs (Boggs), through a related proceeding in Missoula County. Boggs discovered during his inquiry into Davis's case that neither Davis nor McLaverty had received notice of McLaverty's appointment, and that, in the meantime, the one-year time bar on post-conviction relief contained in § 46-21-102, MCA, had expired.

¶ 8 Davis filed a separate motion on March 23, 2006, through Boggs, asking the District Court to toll the one-year time bar as of the court's October 3, 2005, minute entry in light of the fact that McLaverty had never received notice that the court had reappointed him as Davis's counsel for the post-conviction proceedings. The District Court entered an order on April 11, 2006. The court noted in its order that the State had failed to file a response brief to Davis's motion. The court recognized that it usually would deem the State's failure to respond as an admission that Davis's motion should be granted. The court stated, however, that it felt compelled to raise sua sponte the issue of its own subject matter jurisdiction over Davis's untimely petition in light of this Court's precedent that the one-year time bar on post-conviction relief represents a "jurisdictional limit on litigation." The Court concluded that a hearing should be held on Davis's motion for equitable relief. The State filed a response to Davis's motion agreeing with the court that it lacked subject matter jurisdiction to hear Davis's petition and pointing out, among other things, that Davis had waived his right to post-conviction relief when he signed the September 30, 2004, plea agreement.

¶ 9 The court held a hearing on May 9, 2006, regarding Davis's motion. McLaverty informed the court that he had received a copy of Davis's request for counsel, and that he had sent an inquiry to Davis regarding possible grounds for post-conviction relief. McLaverty stated, however, that he had not received notice of the court's October 3, 2005, minute entry reappointing McLaverty as counsel of record for the post-conviction proceedings. McLaverty conceded that the one-year time bar for post-conviction relief had expired in the interim. The court denied Davis's motion on the grounds that the one-year time bar was jurisdictional and could not be tolled absent some new evidence of a "constitutional violation [that] has probably resulted in the conviction of one who was actually innocent." This appeal followed.


¶ 10 We review de novo a trial court's decision to deny a motion for equitable tolling where the underlying facts are undisputed. Brambles v. Duncan, 412 F.3d 1066, 1069 (9th Cir.2005); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003); see also Chance v. Harrison, 272 Mont. 52, 899 P.2d 537 (1995) (reviewing de novo a district court's denial of summary judgment on the sole issue of equitable tolling).


¶ 11 Did the District Court correctly deny Davis's motion to toll on equitable grounds the one-year time bar in § 46-21-102, MCA, so that Davis could file a petition for post-conviction relief?

¶ 12 The State argues that the District Court has no authority to toll the one-year time bar on post-conviction relief because the time bar is a "jurisdictional limit on litigation." The State relies on State v. Wells, 2001 MT 55, 304 Mont. 329, 21 P.3d 610, and Peña v. State, 2004 MT 293, 323 Mont. 347, 100 P.3d 154, for the proposition that § 46-21-102, MCA, deprives district courts of subject matter jurisdiction over petitions for post-conviction relief that are filed more than one year after the date that the conviction became final. This Court stated in Peña that § 46-21-102, MCA, "is jurisdictional because it constitutes the time frame during which a district court has the `power' or `capacity' to `entertain, hear[,] and determine'" a petition for post-conviction relief. Peña, ¶ 35.

¶ 13 Davis argues that our holding in Peña contradicts analogous federal law. The Supreme Court in Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005), for example, determined that Rule 33 of the Federal Rules of Criminal Procedure (Rule 33) did not represent a limit on the subject matter jurisdiction of the federal district courts. Eberhart, 546 U.S. at 13, 126 S.Ct. at 403. Rule 33 requires that "`[a]ny motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period.'" Eberhart, 546 U.S. at 13, 126 S.Ct. at 403. The Supreme Court determined that Rule 33's seven-day limit on post-trial motions represented an "inflexible claim-processing rule," rather than a rule that excludes a class of cases from a court's adjudicatory authority, or subject matter jurisdiction. Eberhart, 546 U.S. at 13, 126 S.Ct. at 403.

¶ 14 The seven-day limit that the Supreme Court deemed non-jurisdictional in Eberhart is indistinguishable from the one-year limit this Court deemed jurisdictional in Peña. Both rules prevent a party from asserting a claim that the party fails to raise within a certain amount of time. Davis also points out that the Ninth Circuit in Calderon v. U.S. Dist. Court for the Cent. Dist. of Cal., 128 F.3d 1283, 1289 (9th Cir.1997), also has recognized that the analagous one-year time bar on federal habeas petitions is not a limit on the federal courts' subject matter...

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  • Carlton v. State, No. A10–2061.
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