Precedents Cited and How They Shaped the Decision

Statutory framework: § 46‑21‑104(1)(c) and § 46‑21‑201(1)(a), MCA. These provisions establish the pleading and proof threshold for postconviction petitions. Petitioners must identify all facts supporting grounds for relief and attach evidence establishing those facts. Courts may dismiss without a hearing if the petition, files, and records conclusively show no entitlement to relief. The Court relies on this statutory gatekeeping function throughout (citing Herman v. State and Heath v. State).

• Herman v. State, 2006 MT 7: Endorses dismissal without an evidentiary hearing if a petition fails to meet § 46‑21‑104(1)(c)’s requirements, anchoring the procedural threshold applied here.
• Heath v. State, 2009 MT 7: Affirms courts may dismiss if the files and records conclusively show the petitioner is not entitled to relief—complementing § 46‑21‑201(1)(a).
• Coleman v. State, 194 Mont. 428 (1981): It is not error to deny a hearing if allegations are without merit or otherwise would not entitle the petitioner to relief.
• Robinson v. State, 2010 MT 108: Postconviction proceedings are not a “fishing expedition.” This supports the Court’s insistence that Jackson’s extensive filings cannot substitute for concrete, supported facts.
• Kelly v. State, 2013 MT 21 and State v. Lewis, 177 Mont. 474 (1978): IAC claims must be grounded in the record or easily deduced from it; conclusory allegations are insufficient—guiding the Court’s view of Jackson’s assertions about counsel’s vetting of Sweeney.

Ineffective assistance standards:

• Strickland v. Washington, 466 U.S. 668 (1984): Two-prong test: deficient performance and prejudice (reasonable probability of a different outcome). The Court applies Strickland deference and presumption of reasonableness.
• Whitlow v. State, 2008 MT 140: Objective reasonableness under prevailing professional norms; do not second-guess reasonable tactics.
• Oliphant v. State, 2023 MT 43: The presumption of competent performance rests on the defendant to rebut; absence of evidence cannot overcome it. The Court quotes Titlow and Dunn to emphasize this evidentiary burden.
• Burt v. Titlow, 571 U.S. 12 (2013) and Dunn v. Reeves, 594 U.S. 731 (2021): Even suboptimal lawyering is not IAC absent proof that no competent lawyer would have chosen the approach; the absence of evidence cannot overcome the presumption—critical to rejecting Jackson’s general assertions about counsel’s expert selection and strategy.

Expert-witness IAC claims:

• Elliot v. State, 2005 MT 10: Petitioner failed to show prejudice where no expert was identified who would testify for the defense, and the proffer wouldn’t overcome the state’s experts. The Court uses Elliot to reject Jackson’s speculation that “a qualified expert” would have helped.
• Wilkes v. State, 2015 MT 243: Contrasts Elliot; petitioner attached written expert opinions laying out alternative theories—removing speculation. The Court distinguishes Jackson’s case because he did not proffer contemporaneous, trial-available expert testimony establishing an alternative defense with outcome-changing force.
• Foster v. Lockhart, 9 F.3d 722 (8th Cir. 1993): Postconviction relief granted where uncontradicted medical evidence (impotency) directly refuted a rape charge; the Court distinguishes Foster because Jackson’s “glaring discrepancy” was presented and, unlike Foster’s evidence, did not directly exonerate him.

Montana Rule of Evidence 702: The trial court deemed Sweeney qualified; that gatekeeping determination undercuts Jackson’s argument that reliance on Sweeney was per se unreasonable.

Legal Reasoning

1) The procedural threshold: Established facts, not speculation or volume

Section 46‑21‑104(1)(c), MCA, requires specific, established facts supporting each ground for relief and “affidavits, records, or other evidence” establishing those facts. The Court emphasizes that a petitioner’s burden is substantive, not quantitative. Jackson filed a 273-page petition and 956-page brief, but the Court held that volume is not a proxy for the required factual proffers that, if true, would satisfy both Strickland prongs.

2) The expert-witness claim: No established facts showing deficiency or prejudice

Deficiency. Jackson argued trial counsel unreasonably retained and relied on forensic consultant Kay Sweeney, claiming Sweeney was underqualified and “debunked.” The Court rejected this for two reasons:

• Jackson offered no evidence of counsel’s actual recruiting and vetting process for Sweeney—only post hoc attacks by the State. Without facts about what counsel did or failed to do, Jackson could not overcome Strickland’s presumption of reasonableness.
• The trial court had admitted Sweeney under M. R. Evid. 702. Counsel also retained an odontologist (Dr. Allan Currie) upon recognizing the limits of Sweeney’s expertise, but elected not to call him after his opinion aligned with the State’s expert. These are facially strategic choices entitled to deference.

Prejudice. Jackson relied on a 2018 report by Tom Griffin, a shooting reconstruction expert, to argue that “qualified forensic experts” would have altered the outcome. The Court held this was speculative and temporally flawed:

• Jackson did not establish that Griffin (or a similar expert meeting his “qualified” standard) was available in 2004 or would have testified for the defense then.
• Griffin’s analysis relied on sources published after the 2004 trial, weakening its probative force for Strickland prejudice as to what would have happened at trial.
• Substantively, Griffin’s report corroborated key elements of the State’s theory (e.g., fired cases from Deputy Rutherford’s firearm in the critical grid; Rutherford could not have shot himself), undermining any claim that it would have produced a different verdict.

Together, these points place Jackson squarely under Elliot rather than Wilkes: he did not identify a trial-available defense expert with an outcome-changing proffer.

3) The “glaring discrepancy” strategy claim: Strategy, not deficiency; no prejudice

Jackson asserted counsel failed to coherently hammer the absence of blood on the Glock’s grip despite his bloodied hands upon booking. The Court found no deficiency:

• Counsel did present the discrepancy through Sweeney and integrated it into a general-denial defense. How much to emphasize it throughout voir dire, cross-examinations, and summation was a tactical judgment—especially given plausible explanations (e.g., timing of when Jackson’s hands became bloodied, including after the shootings when multiple witnesses saw him touch his abdominal wound).
• Strickland cautions against second-guessing after-the-fact; strategic choices after reasoned investigation are “virtually unchallengeable.”

Nor did Jackson establish prejudice. He tied the discrepancy to the 2018 Griffin report, but again failed to show contemporaneous availability or that the theory would have overcome what the Court described as the State’s “overwhelming evidence.” Unlike Foster’s direct exculpatory medical evidence, the discrepancy neither exonerated Jackson nor undermined the State’s case to a reasonable-probability degree.

4) The bottom line on hearings

Because Jackson failed to supply established facts showing both deficient performance and prejudice for his two preserved claims, the district court did not abuse its discretion by denying an evidentiary hearing. Dismissal was proper under § 46‑21‑104(1)(c) and § 46‑21‑201(1)(a), MCA, and consistent with Herman, Heath, Robinson, and Coleman.

Impact and Prospective Significance

Jackson carries several practical implications for Montana postconviction practice, especially for IAC claims involving expert witnesses and trial strategy:

• Quality over quantity at the pleading stage. Petitioners must attach affidavits, records, or evidence that establish facts—not conjecture. Hundreds of pages will not substitute for specific, admissible proffers.
• Expert-based IAC claims require contemporaneous showings. Petitioners should identify an expert who was available at the time of trial, attach a declaration or report articulating the expected testimony, and explain how it would have overcome the State’s experts to produce a reasonable probability of a different result. Post-trial, post-publication forensic analyses are, standing alone, inadequate to show Strickland prejudice.
• Strategic deference remains robust. Decisions to retain a qualified expert, to forgo calling a second expert, or to calibrate the emphasis of a defense theory across phases of trial will rarely support deficiency absent concrete facts showing unreasonableness under prevailing norms.
• District courts retain broad dismissal authority. Under Herman/Heath/Coleman and § 46‑21‑201(1)(a), MCA, courts may dismiss without hearing where petitions fail to meet the § 46‑21‑104(1)(c) threshold or the record conclusively shows no entitlement to relief.

For defense counsel, the case underscores the value of documenting expert selection and strategic decisions, and of anticipating future Strickland scrutiny. For petitioners, it clarifies that successful IAC pleadings must marshal contemporaneous, outcome-linked facts—not post hoc critiques or speculative assertions.