Petition of Gillham

Decision Date06 June 1985
Docket NumberNo. 85-146,85-146
Citation216 Mont. 279,704 P.2d 1019
PartiesPetition of Henry J. GILLHAM.
CourtMontana Supreme Court
OPINION AND ORDER FOR RESPONSE TO
ATTORNEY

Henry J. Gillham filed his petition for post-conviction relief in this Court on April 1, 1985. Gillham had been convicted in the District Court of the 19th Judicial District of Attempted Deliberate Homicide, with Use of a Weapon, and sentenced to 60 years and 10 years respectively. His judgment of conviction was affirmed on appeal. State v. Gillham (1983), 670 P.2d 544.

Gillham sought habeas corpus writ in the United States District Court for the District of Montana. His petition was there denied.

Gillham's present petition for post-conviction relief is grounded on allegations that his conviction resulted from improper jury instructions, illegal search and seizure, ineffective assistance of counsel, and denial of right to confront the witnesses against him. He claims these issues were not presented in his appeal due to ineffective assistance of his court-appointed defense counsel.

On receipt of the petition for post-conviction relief, the Attorney General requested the court-appointed counsel, Kerry N. Newcomer, to supply an affidavit relating to the allegations about his representation of Gillham. Newcomer has resisted, though not obstinately, fearing that violation of the attorney-client relationship by revealing confidential information may subject him to disciplinary action.

On May 9, 1985, this Court ordered Newcomer to be named as a respondent in this action and that he respond to the allegations made by Gillham against the quality of his lawyer's services. Newcomer on May 17, 1985, asked for reconsideration and a hearing en banc on these issues: (1) Whether Gillham has sufficient comprehension to waive the attorney-client relationship; (2) neither he nor Gillham were given opportunity to object to waiver of the attorney-client relationship before the order of May 9, 1985, was entered; (3) naming Newcomer as a respondent puts him in an adverse position to his former client; (4) due process to Gillham was not considered; (5) Gillham was not given an opportunity to claim the privilege; and (6) Disciplinary Rule 4-101(C)(4) should apply only to malpractice or disbarment proceedings and not to petitions similar to Gillham's.

On consideration, it is ORDERED:

(1) The request of Newcomer's for a hearing en banc is DENIED.

(2) While a petition for post-conviction relief alleging inadequate assistance of counsel has been held to be a waiver of the attorney-client relationship relating to privilege (see, e.g., State v. Moreno (1981), 128 Ariz. 257, 625 P.2d 320), waiver may be a misnomer in the true sense of that legal term. Waiver is the voluntary relinquishment of a known right. More important than the privilege granted to the attorney-client relationship are the effective administration of justice and the integrity of the fact-finding system in criminal matters. (Moreno, supra.) Unlike the usual waiver situation, a petition by one convicted of a crime alleging that his conviction is the result of inadequate assistance of counsel attacks the system of judicial administration and the fairness of our trial procedures. In order that a court faced by a petition such as Gillham's can ensure even-handed justice in criminal adjudications, it must have access to the truth of the allegations. Therefore the...

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27 cases
  • State v. Thomas
    • United States
    • Maryland Court of Appeals
    • September 1, 1990
    ... ... Thomas v. State, 301 Md. 294, 483 A.2d 6 (1984). The Supreme Court of the United States denied Thomas's petition for writ of certiorari. 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985) ...         Thomas then filed a petition for post conviction ... U.S., 504 F.2d 332, 336 (8th Cir.1974); State v. Taylor, 327 N.C. 147, 393 S.E.2d 801, 805 (1990); Petition of Gillham, 216 Mont. 279, 704 P.2d 1019, 1020 (1985); Gall v. Com., 702 S.W.2d 37, 44-45 (Ky.1985); State v. Moreno, 128 Ariz. 257, 625 P.2d 320, 323 ... ...
  • Bone v. State, 96-143
    • United States
    • Montana Supreme Court
    • April 15, 1997
    ... ... Bone submitted a petition for post-conviction relief to the District Court, which was denied. Bone appeals the District Court's denial of his amended petition for ... and properly considered Suagee's affidavits in regard to the established procedure as set forth in this Court's holding in Petition of Gillham (1985), 216 Mont. 279, 704 P.2d 1019 ...         In Gillham, we noted that a post-conviction petitioner opens the door to those portions ... ...
  • State v. Cheetham
    • United States
    • Montana Supreme Court
    • June 16, 2016
    ... ... the record does not demonstrate why counsel did or did not take an action which is the basis of the claim, the claim is more suitable for a petition for postconviction relief where a record can be more fully developed. State v. Heavygun, 2011 MT 111, 8, 360 Mont. 413, 253 P.3d 897 (quoting ... available in, and better suited for, a postconviction proceeding where counsel may divulge more freelywith appropriate safeguards ( In re Gillham, 216 Mont. 279, 282, 704 P.2d 1019, 1021 (1985) )his or her communications with the defendant and strategic decisions. By its terms, the procedure ... ...
  • State v. Usrey
    • United States
    • Montana Supreme Court
    • July 1, 2009
    ... ... State failed to obtain an order from this Court that Halvorson could testify and reveal confidential information, as is required by In re Gillham, 216 Mont. 279, 282, 704 P.2d 1019, 1021 (1985), and modified by Marble v. State, 2007 MT 98, ¶ 4, 337 Mont. 99, 169 P.3d 1148 ...         ¶ 45 While the instant case is not a post-conviction-relief proceeding, we adopted a petition/order procedure in Petition of Gillham, 216 Mont. 279, 281, 704 P.2d 1019, 1020, permitting defense counsel to testify against his client in a ... ...
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