No Affidavits, No Relief: Montana Supreme Court Reaffirms Strict Postconviction Pleading and Direct-Appeal Bar in Sullivan v. State

No Affidavits, No Relief: Montana Supreme Court Reaffirms Strict Postconviction Pleading and Direct-Appeal Bar in Sullivan v. State

Introduction

In Sullivan v. State, 2025 MT 65N, the Supreme Court of Montana affirmed the Fourth Judicial District Court’s denial of Terry Sullivan’s amended petition for postconviction relief (PCR) from his misdemeanor disorderly conduct conviction. The decision—issued as a memorandum opinion under the Court’s Internal Operating Rules—does not create precedent and is not citable. Nonetheless, it provides a clear application of Montana’s stringent PCR pleading requirements, the heavy burden on ineffective assistance of counsel (IAC) claims under Strickland v. Washington, and the statutory bar on using PCR to raise issues that could have been brought on direct appeal.

The case centers on whether Sullivan’s expansive, pro se IAC claims—unsupported by affidavits or record evidence—could warrant relief and whether he could resurrect a statutory argument about the disorderly conduct law through PCR after abandoning his direct appeal.

Summary of the Opinion

  • The Court affirmed the district court’s denial and dismissal of Sullivan’s amended PCR petition.
  • Ground One: The petition failed the pleading requirements of § 46-21-104(c), MCA, because it relied on conclusory allegations and a bare declaration, without supporting affidavits, records, or other evidence. This was particularly fatal where Sullivan admitted his IAC claims were non-record-based but offered no affidavit from trial counsel.
  • Ground Two: Independently, the IAC claims failed on the merits because Sullivan did not overcome the presumption of reasonable professional assistance or show deficient performance; lack of success at trial is not proof of deficient lawyering.
  • Ground Three: To the extent Sullivan sought to challenge his conviction on statutory grounds (e.g., the applicability of § 45-8-101(d), MCA), those issues were procedurally barred under § 46-21-105(2), MCA, because they were—or reasonably could have been—raised on direct appeal, which he abandoned.
  • Standard of review: The Court reviewed the district court’s factual findings for clear error, legal conclusions for correctness, and IAC claims de novo.
  • Nonprecedential disposition: The Court issued a memorandum opinion, concluding the case presented no constitutional issues, no issues of first impression, and did not modify or establish precedent.

Case Background

Sullivan was charged with misdemeanor disorderly conduct in May 2016 after exiting his vehicle at a red light, challenging another driver to fight, and shouting obscenities. Represented by counsel in municipal court, he obtained a jury trial despite an initial waiver finding and unsuccessfully sought dismissal for lack of probable cause. A jury convicted him on January 5, 2017.

Sullivan appealed to the district court but failed to file his opening brief, resulting in dismissal on August 1, 2017. Multiple attempts to revive the appeal in the Supreme Court followed, including requests for out-of-time appeal and rehearing. Although some earlier orders were vacated due to “analytical imprecision,” the Court consistently held he had not shown good cause—at best demonstrating mistake or excusable neglect—and dismissed later efforts as untimely with prejudice (Sullivan I–IV).

On October 13, 2020, Sullivan filed a PCR petition asserting 76 IAC claims supported by a 212-page memorandum. The district court dismissed the petition in 2022 for failure to comply with statutory pleading requirements. Sullivan then filed an amended petition incorporating his original filing and challenging the dismissal; the district court denied that amended petition on February 13, 2024. The present appeal followed.

Detailed Analysis

1) Precedents and Authorities Cited

  • Statutory Framework
    • § 46-21-101(1), MCA: PCR is available to a person judged guilty in a court of record who lacks an adequate remedy on appeal.
    • § 46-21-104(c), MCA: Petitions must identify all supporting facts and attach affidavits, records, or other evidence establishing those facts. Conclusory allegations are insufficient.
    • § 46-21-105(2), MCA: Issues that were or could reasonably have been raised on direct appeal may not be raised in PCR; PCR is not a substitute for direct appeal.
    • § 45-8-101(d), MCA: The disorderly conduct statute referenced by Sullivan in arguing a statutory defense; the Court held such arguments were procedurally barred because they belonged on direct appeal.
  • Standards and Procedural Doctrines
    • Coleman v. State, 194 Mont. 428, 633 P.2d 624 (1981): PCR is civil and independent of the criminal case.
    • Ellenberg v. Chase, 2004 MT 66, 320 Mont. 315, 87 P.3d 473: PCR pleading requirements are demanding.
    • State v. Godfrey, 2009 MT 60, 349 Mont. 335, 203 P.3d 834: Petitioners bear the burden by a preponderance and must attach affidavits, records, or other evidence; conclusory allegations and a petitioner’s unsupported affidavit are insufficient (citing Williams v. State, 2002 MT 189).
    • Hamilton v. State, 2010 MT 25, 355 Mont. 133, 226 P.3d 588: District courts have wide latitude to dismiss noncompliant petitions under § 46-21-104(c), MCA.
    • Garding v. State, 2020 MT 163, 400 Mont. 296, 466 P.3d 501: Standard of review—factual findings for clear error, legal conclusions for correctness.
  • Ineffective Assistance
    • Strickland v. Washington, 466 U.S. 668 (1984): Two-pronged IAC test—deficient performance and prejudice.
    • State v. Schowengerdt, 2018 MT 7, 390 Mont. 123, 409 P.3d 38: Deficiency entails errors so serious that counsel was not functioning as counsel guaranteed by constitutions.
    • Whitlow v. State, 2008 MT 140, 343 Mont. 90, 183 P.3d 861: Strong presumption of reasonable assistance; petitioner bears a heavy burden.
    • Riggs v. State, 2011 MT 239, 362 Mont. 140, 264 P.3d 693: Success is not the test of effective counsel.
  • Postconviction vs. Direct Appeal
    • DeShields v. State, 2006 MT 58, 331 Mont. 329, 132 P.3d 540: PCR cannot substitute for a direct appeal.
  • Prior Sullivan Litigation
    • City of Missoula v. Sullivan I–IV, Nos. DA 17-0648 and DA 18-0451: A series of orders addressing timeliness and good cause for out-of-time appeals; ultimately, Sullivan’s appeals were untimely or dismissed, and later efforts dismissed with prejudice.

2) The Court’s Legal Reasoning

The Court affirmed on three independent and mutually reinforcing grounds.

A. Pleading Deficiencies Under § 46-21-104(c), MCA

Sullivan’s petitions relied on a single, global declaration that all asserted facts were true. He provided no supporting affidavits, records, or evidence. Because he acknowledged that his IAC claims were non-record-based, he was especially obligated to supply an affidavit from trial counsel or other competent evidence to establish and explain the facts underpinning his claims of deficient performance. His failure to do so fell squarely within the line of cases (Godfrey, Williams, Ellenberg, Hamilton) holding that conclusory allegations and unsupported affidavits are inadequate, and that district courts may summarily dismiss such petitions.

B. Failure on the Merits: No Showing of Deficiency Under Strickland

Even if the pleading defect were overlooked, the Court held Sullivan’s IAC claims failed substantively. He did not overcome the strong presumption that counsel’s decisions fell within the wide range of reasonable professional assistance (Whitlow). He relied largely on the fact that he lost at trial, which is not an indicator of ineffective counsel (Riggs). Without evidence of specific unreasonable acts or omissions (Schowengerdt) and without any showing of prejudice, the claims did not satisfy Strickland’s two-part test.

C. Statutory Issues Were Procedurally Barred by § 46-21-105(2), MCA

Sullivan tried to use PCR to argue the applicability of § 45-8-101(d), MCA, to his disorderly conduct conviction. The Court held that he could have raised such statutory arguments on direct appeal; having abandoned that appeal by failing to file an opening brief, he could not revive those issues via PCR. Montana law expressly bars PCR claims that were or could reasonably have been raised on direct appeal, and PCR is not a substitute for appeal (DeShields).

3) The Opinion’s Operational Effect (Despite Nonprecedential Status)

Although the Court issued a memorandum opinion—explicitly stating it is noncitable and nonprecedential—the analysis strongly signals continued, strict enforcement of:

  • Montana’s rigorous PCR pleading requirements—especially the need for evidentiary support through affidavits and records for non-record-based IAC claims.
  • The heavy Strickland burden and presumption of reasonable assistance.
  • The direct-appeal bar of § 46-21-105(2), MCA, as a robust gatekeeping mechanism to preserve finality.

Impact Assessment

  • For Petitioners (especially pro se litigants):
    • Attaching competent evidence is essential. A personal declaration, no matter how detailed, is insufficient when claims depend on facts outside the record.
    • For IAC claims grounded in strategy or advice, an affidavit from trial counsel (or a clear explanation supported by evidence) is crucial to establish deficiency.
    • Issues about statutory interpretation or trial court rulings belong on direct appeal; missing appellate deadlines can foreclose future review.
  • For Defense Counsel:
    • Contemporaneous documentation of strategy and decisions can be decisive in later IAC challenges. In PCR, if privilege is waived by an IAC claim, counsel’s affidavit often becomes a key piece of evidence explaining tactical choices.
  • For Trial and District Courts:
    • Hamilton confirms “wide latitude” to summarily dismiss petitions that fail § 46-21-104(c), MCA. Courts can and should enforce the evidentiary-attachment requirement to manage PCR caseloads and protect finality.
  • For the Development of Montana PCR Doctrine:
    • While nonprecedential, Sullivan reflects a stable, consistent application of PCR pleading standards, the Strickland framework, and the direct-appeal bar, reinforcing continuity rather than change.

Complex Concepts Simplified

  • Postconviction Relief (PCR): A civil proceeding, independent of the criminal case, through which a convicted person can challenge the conviction or sentence for reasons typically not available or not raised on direct appeal. PCR is not a second appeal.
  • Record-based vs. Non-record-based IAC Claims: Record-based claims rely on what is already in the trial record (transcripts, filings). Non-record-based claims depend on facts outside the record (e.g., private advice, investigation failures) and therefore require affidavits and evidence establishing those facts.
  • Affidavits and Evidentiary Attachments: Under § 46-21-104(c), MCA, a PCR petition must attach sworn statements, records, or other tangible evidence proving the factual basis of the claims. Conclusory statements or a petitioner’s say-so are inadequate.
  • Strickland Standard for IAC:
    • Deficient Performance: Counsel’s conduct fell below an objective standard of reasonableness under prevailing professional norms.
    • Prejudice: A reasonable probability that, but for counsel’s errors, the result would have been different. Courts presume counsel acted reasonably; losing the case does not equal deficient performance.
  • Direct-Appeal Bar in PCR: If a claim could have been raised on direct appeal, it generally cannot be raised later in PCR. This rule promotes finality and prevents end-runs around missed appellate deadlines.
  • Memorandum Opinion (Nonprecedential): Under the Montana Supreme Court’s Internal Operating Rules, such opinions do not establish precedent and may not be cited. They are used when the case presents no constitutional issue, no question of first impression, and does not change existing law.

Practice Pointers

  • When alleging non-record IAC, include:
    • An affidavit from trial counsel addressing the challenged decisions;
    • Any investigative reports, correspondence, or records corroborating factual assertions;
    • Pinpointed references to the trial record where applicable.
  • Do not rely on the fact of conviction or adverse rulings alone to show deficiency; identify specific unreasonable acts or omissions and explain why they fell below professional norms.
  • Preserve statutory and instructional issues on direct appeal—PCR will not rescue abandoned appellate arguments absent recognized exceptions.
  • Timeliness matters. Failure to file an opening brief or to show good cause for an out-of-time appeal can irreversibly narrow postconviction options.

Conclusion

The Montana Supreme Court’s decision in Sullivan v. State underscores three core pillars of Montana postconviction practice: strict compliance with the evidentiary pleading requirements of § 46-21-104(c), MCA; the heavy substantive burden imposed by Strickland for IAC claims; and the firm bar against using PCR to litigate matters that could have been raised on direct appeal under § 46-21-105(2), MCA. While the opinion is a noncitable memorandum, it cogently applies settled law to reaffirm that conclusory assertions—without affidavits, records, or other proof—do not justify relief, that loss at trial does not establish ineffective assistance, and that finality principles prevent relitigation of issues bypassed on appeal. The case thus functions as a practical roadmap for petitioners and courts alike on how Montana’s PCR gatekeeping rules operate in everyday litigation.

Case Details

Year: 2025
Court: Supreme Court of Montana

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