Rosling v. State , 2015 MT 351N ( 2015 )

December 29 2015
DA 15-0339
Case Number: DA 15-0339
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 351N
JARED ROSLING,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDV-2009-445
Honorable Jeffrey M. Sherlock, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jared Lee Rosling (self-represented); Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
Assistant Attorney General; Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney; Helena, Montana
Submitted on Briefs: December 16, 2015
Decided: December 29, 2015
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea 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 Jared Rosling appeals the order of the First Judicial District Court, Lewis and
Clark County, dismissing with prejudice his second petition for postconviction relief.
Rosling’s convictions and sentences for deliberate homicide, aggravated kidnapping,
aggravated burglary, tampering with or fabricating physical evidence, and criminal
possession of dangerous drugs were upheld by this Court in State v. Rosling,
2008 MT 62, 342 Mont. 1, 180 P.3d 1102. We affirmed the dismissal of his first petition
for postconviction relief in Rosling v. State, 2012 MT 179, 366 Mont. 50, 285 P.3d 486.
Rosling’s federal habeas corpus petition also was denied in Rosling v. Kirkegard,
2014 U.S. Dist. LEXIS 22498, No. CV 12-161-M-DLC-JCL, at *8-9 (D. Mont. Feb. 21,
2014). Here, we affirm the District Court’s dismissal of Rosling’s second petition for
postconviction relief.
¶3 This Court reviews a district court’s denial of a petition for postconviction relief to
determine whether the district court’s findings of fact are clearly erroneous and whether
its conclusions of law are correct. Marble v. State, 2015 MT 242, ¶ 13, 380 Mont. 366,
355 P.3d 742. A petitioner must raise all grounds for relief in the original or amended
original petition. Section 46-21-105(1)(a), MCA. The petition must “identify all facts
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supporting the grounds for relief . . . and have attached affidavits . . . or other evidence
establishing the existence of those facts.” Section 46-21-104(1)(c), MCA. A district
court must dismiss a second or subsequent petition that raises grounds that
reasonably could have been raised in the original or amended original petition.
Section 46-21-105(1)(b), MCA.
¶4 Rosling’s second petition fails to comply with our postconviction relief statutes.
Rosling alleges that a material witness has recanted his testimony, but he offers no
affidavit or other substantive evidence in support of this allegation. Rosling’s second
petition, like his first petition, alleges ineffective assistance of his trial counsel for not
testing and presenting at trial a latent palm print taken from the crime scene. Under
§ 46-21-105(1)(b), MCA, Rosling cannot raise this claim again. Finally, Rosling does
not cite any “newly discovered evidence” to satisfy § 46-21-102(2), MCA. The District
Court correctly dismissed Rosling’s petition.
¶5 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. The District Court’s interpretation and
application of the law were correct, and its findings of fact are not clearly erroneous.
Affirmed.
/S/ JAMES JEREMIAH SHEA
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We Concur:
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE
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