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State v. Redcrow5/11/1999
of counsel, based upon our definition of fundamental miscarriage of Justice, we are not convinced that Redcrow meets the standard of being actually innocent. None of the arguments presented by Redcrow overcome the fact that Redcrow confessed to law enforcement to stabbing Richie and denied Regudon's involvement in the murder. Inmate Brenda Shoulders testified that Redcrow admitted to her that she killed Richie. The validity of Redcrow's confession was directly addressed on her motion for new trial and she presented expert testimony before the District Court to support her allegations. The District Court did not grant a new trial and this Court affirmed the denial on direct appeal. None of Redcrow's assertions of ineffective assistance of counsel raised on appeal bear on the validity of her confession. Accordingly, we cannot state that "no reasonable juror would have found the defendant guilty." Schulp, 513 U.S. at 329, 115 S. Ct. at 868, 130 L. Ed. 2d at 837. No error by Redcrow's counsel can outweigh the significance of Redcrow's confession, combined with her admission of guilt to inmate Shoulders. A fundamental miscarriage of Justice arises only when a jury could find, in light of new evidence, that the defendant is actually innocent of the crime. Redcrow's confession and admission eliminate that possibility in her case.
. Moreover, as we held in Beach v. Day (1996), 275 Mont. 370, 913 P.2d 622, because all of Redcrow's claims regarding ineffective assistance of counsel are record-based and not properly described as new evidence, the claims could have been presented prior to the expiration of the five-year statute of limitations.
. Redcrow further maintains on appeal that when the District Court denied her amended petition for post-conviction relief, it denied her due process of law by not holding a hearing first, and by incorrectly interpreting the affidavit requirement of § 46-21-104, MCA (1987). Essentially, Redcrow maintains that the District Court should have allowed her another opportunity to present her case beyond what she provided in her amended petition for post-conviction relief. Redcrow claims that she should be allowed a hearing to further prove her need for post-conviction relief, and that the District Court should have accepted her "lengthy and detailed allegations of fact," rather than strictly requiring affidavits pursuant to § 46-21-104, MCA (1987). Since we have decided that Redcrow's allegations of ineffective assistance cannot overcome her confession and admission to establish a fundamental miscarriage of Justice, there is no need to address these issues.
. Redcrow has presented no valid reason, other than an incorrect calculation of the statute of limitations, for not timely filing her petition. As we stated in Petition of Gray, 274 Mont. at 2, 908 P.2d at 1352, neither ignorance of the law, nor the need for time to present a pro se defense, is an acceptable excuse for failing to timely file a petition for post-conviction relief.
. Accordingly, we conclude that the District Court was correct when it concluded that Redcrow's petition for post-conviction relief is barred by the five-year statute of limitations pursuant to § 46-21-102, MCA (1987). As we held in State v. Baker (1995), 272 Mont. 273, 281, 901 P.2d 54, 58-59, because Redcrow cannot demonstrate a fundamental miscarriage of Justice, we will consistently apply the procedural bar.
. We affirm the judgment of the District Court.
JIM REGNIER
We Concur: J. A. TURNAGE JAMES C. NELSON KARLA M. GRAY TERRY N. TRIEWEILER
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