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Kallowat v. State6/15/2004
Submitted on Briefs: December 19, 2003
Robin Kallowat was convicted of Felony DUI, Driving while License Suspended or Revoked, and Felony Bail Jumping in the Twentieth Judicial District Court, Sanders County. He appealed to this Court which affirmed his conviction. State v. Kallowat , 2000 MT 354N. Kallowat then filed a petition for a writ of habeas corpus in the United States District Court, District of Montana. That court advised him that he had not exhausted all of his available state court remedies and ordered him to do so before refiling in federal court. Obeying that order, Kallowat filed a petition for writ of habeas corpus in the Montana Supreme Court which ordered his petition re-filed in the District Court as a petition for post-conviction relief. The District Court denied the motion for post-conviction relief. We affirm the District Court.
Kallowat raises four issues on appeal.
1. Whether his conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure.
2. Whether his arrest was lawful.
3. Whether he was denied effective assistance of counsel because his counsel did not prosecute an appeal on his behalf in the federal courts.
4. Whether his conviction was unconstitutional because the prosecution failed to disclose exculpatory evidence.
Denial of a petition for post-conviction relief is reviewed to determine whether the District Court's findings of fact are clearly erroneous and whether its conclusions of law are correct. State v. Hanson , 1999 MT 226, 9, 296 Mont. 82, 9, 988 P.2d 299, 9. Review of a claim of ineffective assistance of counsel is de novo. State v. Turner , 2000 MT 270, 47, 302 Mont. 69, 47, 12 P.3d 934, 47.
In his first direct appeal to this Court, the issue decided was whether the person who arrested Kallowat had probable cause to do so. Subsequent to arresting Kallowat, the arresting officer was found to have had a felony conviction prior to being hired as a police officer, thus making his legal employment status questionable. The District Court found, and this Court affirmed, that though the officer's legal status as a peace officer was questionable, he had probable cause, as a private citizen, to arrest Kallowat.
In his motion for post-conviction relief Kallowat filled eighteen of twenty-four pages with allegations relating to whether the arresting officer was qualified to be an officer thereby making the search of his vehicle unconstitutional; whether there was an immediate need to arrest if the officer was in fact acting in his capacity as private citizen; and whether existing circumstances justified his arrest. In his brief to this Court Kallowat reiterates these arguments. The arguments presented by Kallowat are completely subsumed within the issue addressed by this Court in his first appeal, therefore, the doctrine of res judicata, codified at § 46-21-105(2), MCA, bars any further consideration of them.
Kallowat's second argument is that his appointed counsel ineffectively represented him in failing to 1) represent him in his post-conviction proceedings, and 2) follow his instruction to file an appeal in the federal courts. In the first instance, two separate attorneys were appointed consecutively to represent Kallowat in his post-conviction proceedings. The first, Chad Wright of the Montana Appellate Defender's Office, moved to withdraw because of an excessively large caseload. The second, Carolyn Gill, moved to withdraw citing no discernable basis that would entitle Kallowat to relief. The court granted both motions to withdraw and then granted Kallowat's motion to proceed
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