B. Boyd v. State

Majority Ingrid Gustafson

01/16/2024 DA 23-0188 Case Number: DA 23-0188 IN THE SUPREME COURT OF THE STATE OF MONTANA 2024 MT 8N BANNER LEE BOYD, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Custer, Cause No. DV-2023-6 Honorable Michael B. Hayworth, Presiding Judge COUNSEL OF RECORD: For Appellant: Banner Lee Boyd, Self-represented, Deer Lodge, Montana For Appellee: Austin Knudsen, Montana Attorney General, Cori Losing, Assistant Attorney General, Helena, Montana Wyatt A. Glade, Custer County Attorney, Miles City, Montana Submitted on Briefs: November 29, 2023 Decided: January 16, 2024 Filed: __________________________________________ Clerk  Justice Ingrid Gustafson delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, 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 Banner Lee Boyd (Boyd) appeals from the January 27, 2023, Order of the Sixteenth Judicial District Court, Custer County, denying his petition for postconviction relief. We affirm. ¶3 In 2019, a jury convicted Boyd of Assault on a Peace Officer and Attempted Deliberate Homicide. The facts and procedural history for those criminal charges are detailed in State v. Boyd, 2021 MT 323, ¶¶ 4-11, 407 Mont. 1, 501 P.3d 409, and we need not discuss them for this appeal. As part of his sentencing, Boyd was committed to the Montana State Prison (MSP) for a term of 10 years, none suspended, for the Assault of a Peace Officer conviction and a concurrent term of 80 years, none suspended, for the Attempted Deliberate Homicide conviction. ¶4 Boyd appealed the judgment against him to this Court. We reversed and remanded to the District Court to dismiss the Attempted Deliberate Homicide conviction with prejudice and to “strike the conditions it orally stated as conditions of parole, though they may properly remain as recommendations in the written judgment.” 2 Boyd, ¶ 29.  Consequently, Boyd is serving the original sentence for Assault on a Peace Officer and no longer serving a sentence for Attempted Deliberate Homicide. ¶5 On January 17, 2023, Boyd filed a petition for postconviction relief. Boyd stated he is entitled to post conviction relief based on three grounds: 1) fruit of the poisonous tree, 2) no medical wounds of the alleged victim, and 3) perjury and illegal tampering. In factual support of his fruit of the poisonous tree claim he asserted “[concurrent] charges Over Turn of Attempt [Deliberate Homicide].” In factual support of his lack of medical wounds claim, he asserted “No Medical Report,” and in factual support of his perjury and tampering claim he asserted “Directed by Judge, Court Reporter.” ¶6 Boyd also included a memorandum in support of his petition for postconviction relief. The memorandum included a form with boxes checked for claims for ineffective assistance of counsel (IAC) at the trial level, IAC at the appellate level, and failure of the prosecutor to disclose material evidence. Finally, Boyd also submitted an affidavit in support of his petition for postconviction relief. The affidavit stated “physical fact, lies and extortion of one Myself U.S. Citizens Banner Lee Boyd Fruit of a [poisonous] tree, interference with legal proceedings Etc.” ¶7 The District Court denied Boyd’s petition for postconviction relief. The court stated, “the Petition lacks sufficient detail that would allow the Court to understand [Boyd’s] claims” and “[t]he Affidavit consists of generalized, conclusory assertions that do not establish the existence of factual support for the Petition.” The District Court also pointed out Boyd’s memorandum in support of his petition did not apply the law Boyd 3  referenced to the facts of his case. The court further explained that “each of [his] claims could have been raised on direct appeal and are barred under Section 46-21-105(2), MCA.” Boyd appealed the District Court’s denial of postconviction relief to this Court. ¶8 On appeal, in addition to the grounds stated in his petition, Boyd asserts he had IAC at both trial and appellate levels. He also asserts he would like to disqualify the District Court Judge for cause, however he does not give any specific cause for disqualification. The State asserts the issues Boyd raised in his opening brief are not appropriate for appellate review because he failed to state any claim in his petition for postconviction review and did not develop those issues on appeal. ¶9 “We review a district court’s denial of a petition for post-conviction relief to determine whether the court’s findings of fact are clearly erroneous and whether its conclusions of law are correct.” Wilkes v. State, 2015 MT 243, ¶ 9, 380 Mont. 388, 355 P.3d 755. “A district court may dismiss a petition for postconviction relief as a matter of law, and we review a court’s conclusions of law for correctness.” Herman v. State, 2006 MT 7, ¶ 13, 330 Mont. 267, 127 P.3d 422. ¶10 Under § 46-21-104(1)(c), MCA, a petition for postconviction relief must “identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts.” A district court may also dismiss a petition for postconviction relief for failure to state a claim if the petitioner fails to attach the affidavit, records, or other evidence required under § 46-21104(1)(c), MCA. Herman, ¶ 15. Additionally, postconviction relief cannot be substituted 4  for direct appeal because this Court “will not consider grounds for postconviction relief that reasonably could have been raised on direct appeal.” DeShields v. State, 2006 MT 58, ¶ 15, 331 Mont. 329, 132 P.3d 540; see also § 46-21-105(2), MCA. ¶11 This Court has adopted a two-pronged test from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), to judge IAC claims. Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. To establish a claim for IAC, “a defendant must prove both (1) that counsel’s performance was deficient, and (2) that counsel’s deficient performance prejudiced the defense.” State v. Ward, 2020 MT 36, ¶ 18, 399 Mont. 16, 457 P.3d 955 (internal citations omitted). ¶12 The State has an affirmative duty to disclose evidence to the defendant. Pursuant to the Due Process Clause of the United States Constitution, the prosecution must disclose all evidence favorable to the accused that is material to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 86-87, 83 S. Ct. 1194 (1963). In Montana, under § 46-15-327, MCA, the State must disclose all additional information or material within the State’s possession, both inculpatory and exculpatory. State v. Stewart, 2000 MT 379, ¶ 23, 303 Mont. 507, 16 P.3d 391. ¶13 After reviewing the record, we agree with the District Court that Boyd’s petition for postconviction relief should be denied because each of his claims could have been raised on direct appeal and are therefore barred by § 46-21-105(2), MCA, and his petition fails to establish minimal facts necessary to pursue his IAC assertions. The District Court concluded the three grounds inferred from the petition—“trial counsel’s failure to object 5  to evidence based on the fruit of the poisonous tree doctrine (Ground One); the State’s lack of evidence of ‘medical wounds’ and/or failure to have a ‘medical report’ as evidence to support the charge (Ground Two); perjury and witness tampering (Ground Three)”—could have been raised on direct appeal, yet Boyd did not raise those issues on direct appeal nor make any objections so as to preserve those issues for direct appeal. We find the District Court’s conclusion was correct given that § 46-21-105(2), MCA, prohibits claims in a petition for postconviction relief that could have been brought on direct appeal. ¶14 In his affidavit in support of his petition, Boyd asserts “physical fact, lies and extortion of one myself U.S. citizens Banner Lee Boyd fruits of a [poisonous] Tree, interference with legal proceedings Etc.” The District Court’s review of the affidavit concluded it consisted of “generalized, conclusory assertions that do not establish the existence of factual support for the Petition.” In light of the requirements of § 46-21-104, MCA, we find the District Court’s conclusion appropriate. Section 46-21-104(1)(c), MCA, requires the petition to “identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts.” Additionally, “[t]he petition must be accompanied by a supporting memorandum, including appropriate arguments and citations and discussion of authorities.” Section 46-21-104(2), MCA. Here, Boyd’s affidavit did not identify and establish sufficient facts to support his grounds for relief. Boyd also did not include any legal argument or application of the law to the set of facts in his case. Accordingly, the District Court’s review of Boyd’s affidavit was appropriate. 6  ¶15 In Boyd’s memorandum in support of his petition for postconviction relief, he checked the template boxes for IAC at the trial and appellate levels and failure of the prosecutor to disclose material evidence. The memorandum contained case law establishing the rule of law for each of these claims, but contained no application of the cited legal authority to the facts of Boyd’s case. Boyd did not include any mention of specific facts to support either of his claims for IAC, nor did he allude to any specific material evidence the prosecutor failed to disclose. As explained above, neither his petition nor his supporting affidavit contain facts, evidence, or application of law. Thus, in his postconviction relief petition, Boyd failed to show how the prosecution failed to turn over evidence, and he failed to demonstrate either Strickland prong with regard to his IAC assertions. The District Court correctly dismissed Boyd’s IAC claim, concluding the memorandum was generic and the claims could have been asserted on direct appeal, thus they are barred under § 46-21-105(2), MCA. We agree. ¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. ¶17 Affirmed. /S/ INGRID GUSTAFSON 7  We concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ DIRK M. SANDEFUR /S/ JIM RICE 8