Opinion
DA 21-0508
11-30-2021
RANDALL KEITH ORTON, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee.
ORDER
In an October 26, 2021 Order, this Court granted self-represented Petitioner Randall Keith Orton's verified Petition for an Out-of¯Time Appeal because he had improperly filed a Writ of Certiorari with the United States Supreme Court before exhausting his state remedies. M. R. App. P. 4(6). Orton has filed two Motions for Appointment of Counsel and a Motion to Transfer Transcripts from Cause No. DA 18-0591, State v. Orton Appellee State of Montana has not filed a response to Orton's motion to transfer transcripts from his earlier appeal. M. R. App. P. 16(1).
On September 8, 2020, this Court dismissed Orton's appeal after reviewing the record, pursuant to § 46-8-103(2), MCA, and Anders v. Ca., 368 U.S. 738, 87 S.Ct. 1396 (1967), upon Orton's counsel motion to withdraw and Orton's response in opposition.
Upon review, this Court concludes that Orton is not entitled to his requests. Orton appeals a March 26, 2021 Missoula County District Court Order on Post-Conviction Relief that denied and dismissed his petition. Orton is not entitled to appointment of counsel in this appeal. There is no right to the appointment of counsel in a postconviction proceeding for relief, although a court may order the assignment of counsel under the circumstances outlined in § 46-8-104, MCA. We point out that the District Court denied Orton's motion for appointment of counsel in his postconviction proceeding as stated in its Order and that Orton represented himself in the District Court. Orton has not demonstrated the existence of extraordinary circumstances to justify appointment of counsel, pursuant to § 46-8-104(3), MCA.
Turning to his motion to transfer transcripts, Orton has not provided any legal basis for his request. This Court has determined before that "the Montana post-conviction relief procedure is civil in nature and independent of the underlying criminal cause." Coleman v. State, 194 Mont. 428, 433, 633 P.2d 624, 627 (1981). A proceeding in District Court for postconviction relief is statutory in nature. See §§ 46-21-101. through 46-21-203, MCA. Montana's applicable statutes do not allow for transferring transcripts from the underlying criminal case. Sections 46-21-104(1)-(2), MCA. Accordingly, IT IS ORDERED that both of Orton`s Motions for Appointment of Counsel are DENIED.
IT IS FURTHER ORDERED that Orton's Motion to Transfer Transcripts is DENIED.
The Clerk is directed to provide a copy of this Order to counsel of record and to Randall Keith Orton with a copy of this Court's Appellate Handbook.