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Feb. 24, 2026 Get Citation Alerts Download PDF Add Note

Rodriguez v. State

Montana Supreme Court

• Citations: 2026 MT 35N
• Docket Number: DA 23-0677
• Precedential Status: Non-Precedential

• Nature of Suit: Direct Appeal

• Opinion

• Authorities (24)

• Cited By (0)

• Summaries (0)

• Similar Cases (34.3K)

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Syllabus

Opinion - Noncite/Memorandum - JusticeRice - AFFIRMED

Combined Opinion

02/24/2026

DA 23-0677
Case Number: DA 23-0677

IN THE SUPREME COURT OF THE STATE OF MONTANA

2026 MT 35N

JUAN ANASTASIO RODRIGUEZ,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Appellee.

APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. BDV-22-0343
Honorable Elizabeth A. Best, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Shandor S. Badaruddin, Shandor S. Badaruddin, PC, Missoula,
Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Katie F. Schulz,
Assistant Attorney General, Helena, Montana

Joshua A. Racki, Cascade County Attorney, Great Falls, Montana

Submitted on Briefs: December 10, 2025

Decided: February 24, 2026

Filed:

---

Clerk
Justice Jim Rice 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 Juan Anastasio Rodriguez (Rodriguez) appeals from the denial of his petition for

postconviction relief (PCR) by the Eighth Judicial District Court, Cascade County,

whereby he challenged his 2017 conviction, after jury trial, of one count of sexual

intercourse without consent upon J.S., the alleged victim, who was then about 15 years of

age. We affirm.

¶3 Rodriguez appealed his conviction, which was affirmed, and his following petition

for rehearing was denied. See State v. Rodriguez, 2021 MT 65, ¶ 3, 403 Mont. 360,

483 P.3d 1080.1 Rodriguez’s conviction became final on July 19, 2021, when the deadline

1
On direct appeal, Rodriguez argued that the District Court erred by allowing the presentation of
combined expert and lay testimony without providing a cautionary jury instruction or notice to
Rodriguez’s trial counsel, that the District Court violated his due process rights by failing to
exclude the prosecutor from a hearing regarding defense counsel’s representation, and that trial
counsel rendered record-based ineffective assistance of counsel. See Rodriguez, ¶ 2. Regarding
the record-based ineffective assistance of trial counsel claims, Rodriguez faulted trial counsel for
(1) failing to call a witness, John Marion, whom Rodriguez requested and (2) failing to elicit
statistics on false reports of sexual assault from the State’s blind expert during cross-examination.
See Rodriguez, ¶ 32. As to trial counsel’s alleged failure to call Marion, neither the State nor trial
counsel was able to locate Marion, and nothing in the record showed that the witness would have
testified. Accordingly, the claim was inappropriate for resolution on direct appeal. See Rodriguez,
¶ 33. As to the failure to elicit false-reporting statistics from the State’s blind expert, the record
was likewise insufficient to explain why trial counsel did not pursue a line of questioning into
false-reporting statistics. Accordingly, the claim was inappropriate for resolution on direct appeal.
See Rodriguez, ¶ 35. In Rodriguez’s PCR petition, discussed further herein, Rodriguez again raises
2
to petition the U.S. Supreme Court for review had passed. See § 46-21-102, MCA. On

July 13, 2022, Rodriguez signed and mailed to the Eighth Judicial District Court his PCR

petition and an affidavit stating he was unable to pay the filing fees. The clerk of the

District Court docketed the fee waiver affidavit on July 18, 2022. However, the clerk did

not docket the petition until July 26, 2022, when the District Court approved Rodriguez’s

request to proceed without paying fees.

¶4 Rodriguez raised 63 grounds for relief in his petition, claiming, by categories,

ineffective assistance of counsel (IAC) by both trial and appellate counsel, prosecutorial

misconduct, bailiff misconduct, court error, and jury misconduct. The two attorneys who

had represented Rodriguez at trial submitted an affidavit responding to the allegations of

trial counsel IAC. The State answered that Rodriguez’s petition was untimely but also

responded substantively to Rodriguez’s claims.

¶5 On August 23, 2023, the District Court entered an order denying Rodriguez’s

petition (Order), ruling the petition was untimely, but further explaining that it had

reviewed the affidavit of the trial attorneys and, having “observed their performance during

the trial,” the District Court “finds and concludes that their representation of Rodriguez

exceeded all standards and was not deficient.” On September 7, 2023, Rodriguez filed a

motion to alter or amend the Order pursuant to M. R. Civ P. 59(e) (the Rule 59 Motion),

arguing that his PCR petition was timely because the clerk had received it before the

ineffective assistance of trial counsel based on trial counsel’s failure to call Marion as a witness
(Ground 8) and trial counsel’s failure to question the State’s blind expert about false reporting
statistics (Ground 27).
3
deadline. On October 11, 2023, the District Court received a letter from Rodriguez asking

why the District Court had not yet ruled on his Rule 59 Motion. In response, the State

agreed that Rodriguez’s PCR petition had been timely, but argued Rodriguez was,

nonetheless, not entitled to relief on the merits. On November 16, 2023, Rodriguez filed a

notice of appeal. On November 17, 2023, the District Court entered an amended order

(Amended Order), which granted Rodriguez’s motion to amend, but denied the petition on

the merits. Rodriguez appeals.

¶6 When reviewing a district court’s denial of a petition for postconviction relief, we

determine whether the court’s findings of fact are clearly erroneous and whether its

conclusions of law are correct. Jackson v. State, 2025 MT 221, ¶ 11, 424 Mont. 244,

576 P.3d 876 (citing Hamilton v. State, 2010 MT 25, ¶ 7, 355 Mont. 133, 226 P.3d 588).

Claims of ineffective assistance of counsel present mixed questions of law and fact that we

review de novo. Jackson, ¶ 11 (citation omitted). Discretionary rulings in postconviction

relief proceedings, including rulings related to whether to hold an evidentiary hearing, are

reviewed for an abuse of discretion. Jackson, ¶ 11 (citing Hamilton, ¶ 7).

¶7 Rodriguez raises five issues on appeal: (1) whether the District Court had

jurisdiction to issue the Amended Order; (2) whether Rodriguez timely filed his PCR

petition; (3) whether trial counsel rendered IAC, in multiple ways; (4) whether appellate

counsel rendered IAC; and (5) whether the District Court erred by declining to grant an

evidentiary hearing or other relief that would have provided Rodriguez an opportunity to

present his claims.

4
¶8 Rodriguez argues the District Court lacked jurisdiction to issue the Amended Order

on November 17, 2023, because jurisdiction had transferred to this Court upon his filing

of a notice of appeal on November 16, 2023. He explains that his Rule 59 Motion, filed

September 7, 2023, was deemed denied after 60 days without a ruling by the District Court,

on November 6, 2023, which triggered the appeal period, rendering his November 16, 2023

notice of appeal to this Court timely.2 Rodriguez argues that only the District Court’s initial

Order denying the petition is properly on appeal, although he also contends that the District

Court retained limited jurisdiction to correct clerical errors, and therefore, its

redetermination that his petition was timely filed in the Amended Order properly corrected

the initial Order. The State contends that the District Court did not merely correct a clerical

error because it added additional findings to its conclusion that the petition should be

denied on the merits. The State argues the District Court had authority to issue the

Amended Order because it had no notice that Rodriguez had filed an appeal until after its

Amended Order was entered, and the Rule 59 Motion was not deemed denied on

November 6 because the Eighth Judicial District’s Local Rule 7(B) required the filing of a

Notice of Issue, which pushed back the deemed-denied date to December 11, 2023.

Consequently, the State contends Rodriguez’s notice of appeal was premature and

ineffective, but that, in any event, regardless of which order is considered on appeal,

Rodriguez is not entitled to relief.

2
Rodriguez’s argument assumes that a notice of appeal had to be filed within 30 days after
November 6, 2023. The State correctly notes an appeal had to be taken in this proceeding within
60 days after November 6, 2023. Section 46-21-203, MCA. However, as Rodriguez filed the
notice 11 days after November 6, 2023, his appeal was timely filed.
5
¶9 We agree that Rodriguez’s petition was timely filed. The clerk of the District Court

received Rodriguez’s PCR petition and the fee waiver affidavit together on July 18, 2022,

when the fee waiver was docketed. Filing by mail is complete once the pleading is placed

in custody of the clerk of court. See Lesage v. Twentieth Jud. Dist. Ct., 2021 MT 72, ¶ 7,

403 Mont. 476, 483 P.3d 490 (citations omitted). Rodriguez’s deadline to file a PCR

petition was July 19, 2022, and, accordingly, the petition was timely. See § 46-21-102,

MCA. We find it unnecessary to resolve the parties’ arguments regarding whether the

District Court had jurisdiction to issue the Amended Order, and the application of the

Eighth Judicial District’s Local Rule 7(B), because we have determined that the outcome

on the merits of the petition is the same under either order.

¶10 Before reaching the merits of alleged postconviction claims, it is “necessary to

determine whether such claims are properly before the court or whether they are

procedurally barred.” Hagen v. State, 1999 MT 8, ¶ 11, 293 Mont. 60, 973 P.2d 233.

Postconviction claims may be procedurally barred by either § 46-21-105(2), MCA, or the

doctrine of res judicata. Hagen, ¶ 11. “In postconviction proceedings, § 46-21-105(2),

MCA, precludes consideration of a claim that reasonably could have been raised on direct

appeal.” Herman v. State, 2006 MT 7, ¶ 55, 330 Mont. 267, 127 P.3d 422. We will not

address issues raised for the first time on appeal. Ford v. State, 2005 MT 151, ¶ 12,

327 Mont. 378, 114 P.3d 244 (citing Griffin v. State, 2003 MT 267, ¶ 15, 317 Mont. 457,

77 P.3d 545). Further, this Court will not address unsupported arguments or develop and

articulate arguments for parties on appeal. Herman, ¶ 22 (citing State v. Kearney, 2005 MT

171, ¶ 16, 327 Mont. 485, 115 P.3d 214).

6
¶11 In his PCR petition, Rodriguez claimed relief upon 63 different grounds. Of those,

Rodriguez raised 6 prosecutorial misconduct claims (Grounds 29–34), 7 alleged court

errors (Grounds 36–40, 60, and 62), 1 juror misconduct claim (Ground 42), and 1 bailiff

misconduct claim (Ground 35). The remaining grounds alleged IAC by trial counsel and

appellate counsel.

¶12 Regarding the categories of claims of prosecutorial misconduct, court errors, juror

misconduct, and bailiff misconduct, Rodriguez did not raise any of these issues in his direct

appeal. See Rodriguez, ¶ 2. When a petitioner has been afforded the opportunity for direct

appeal of the conviction, grounds for relief that were or could reasonably have been raised

on direct appeal may not be raised, considered, or decided in a postconviction proceeding.

Section 46-21-105(2), MCA; Hagen, ¶ 12 (“Section 46-21-105(2), MCA [], provides that

grounds for relief which reasonably could have been raised on direct appeal may not be

raised thereafter in a petition for postconviction relief.”). Rodriguez could have raised

these claims on direct appeal, and they, accordingly, are procedurally barred from

postconviction relief.

¶13 Grounds 1–28, 41, and 59 relate to trial counsel IAC, involving Rodriguez’s two

trial attorneys. Rodriguez does not provide appellate argument on all of these grounds.

Rather, he advances 10 claims of trial counsel IAC: Claim 1—trial counsel was ineffective

for failing to effectively confront witnesses J.S. and her therapist, Ladd-Maxwell (relating

to Grounds 2, 3, and 19); Claim 2—trial counsel was ineffective for failing to effectively

impeach the allegations that J.S. and Evans, J.S.’s friend, saw Rodriguez’s truck parked

outside J.S.’s apartment in 2008 (relating to Ground 10); Claim 3—trial counsel was

7
ineffective for failing to confront J.S. regarding the date she alleged the assault occurred

(relating to Grounds 16 and 37);3 Claim 4—trial counsel was ineffective for promising the

jury a “he said-she said” defense but not allowing Rodriguez to testify (relating to

Ground 15); Claim 5—trial counsel was ineffective for failing to object to J.S.’s in-court

identification of Rodriguez (relating to Ground 26); Claim 6—trial counsel was ineffective

for failing to exercise a peremptory challenge against juror Underwood (relating to

Ground 24); Claim 7—trial counsel was ineffective for failing to object to the State’s

vouching for Paliga, Rodriguez’s jail mate, or, in the alternative, for failing to confront him

(relating to Ground 25); Claim 8—trial counsel was ineffective for failing to investigate

J.S.’s allegedly false claims of prior sexual abuse (relating to Ground 6); Claim 9—trial

counsel was ineffective for failing to communicate sufficiently with Rodriguez such that

he was constructively denied his right to counsel (relating to Ground 1); and

Claim 10—trial counsel was ineffective for failing to object to improper expert medical

testimony by Detective Slaughter and for failing to object to a jury instruction the District

Court gave in response to Paliga’s testimony regarding Rodriguez’s prior felonies (relating

to Ground 23). While these 10 Claims incorporate, either explicitly or by description, one

or more of the original 63 grounds, many of the 63 original grounds are not carried forward

with supporting argument into the Claims made on appeal. Specifically, Rodriguez does

not raise or argue on appeal the following numbered trial IAC grounds from the PCR

3
Ground 37 is not a standalone trial IAC claim but provides details supporting Rodriguez’s
arguments relating to Ground 16, which is such a claim.
8
petition: 4–5, 7–9, 11–14, 17–18, 20–22, 27–28, 41, and 59.4 Because they are not raised

or supported on appeal, we do not consider them. See Ford, ¶ 35. Finally, Rodriguez also

argues he was prejudiced by the cumulative effect of all the above-described instances of

trial IAC.

¶14 Further, a petitioner may not change theories or raise new issues on appeal that were

not presented to the district court. See Griffin, ¶ 15; State v. Wetzel, 2005 MT 154, ¶ 13,

327 Mont. 413, 114 P.3d 269 (“It is well-established that this Court will not address either

an issue raised for the first time on appeal or a party’s change in legal theory.”). Several

trial IAC claims Rodriguez now raises on appeal were not stated in his PCR petition,

specifically: Claim 4 asserts a constitutional claim not originally described in his PCR

petition; Claim 7 adds an alternative theory regarding a failure to confront Paliga, which

was not presented in the PCR petition; Claim 8 adds two allegations that J.S. falsely

claimed her mother had secret sexual relationships with J.S.’s boyfriend and with another

man, which were not presented in the PCR petition;5 and Claim 10 adds the claim that trial

counsel was ineffective for failing to object to the improper instruction the District Court

gave in response to Paliga’s testimony regarding Rodriguez’s prior felonies as such a claim

4
Notably, grounds 8 and 27 involve the ineffective assistance of trial counsel claims that
Rodriguez raised on direct appeal. See Rodriguez, ¶¶ 2, 32–36.
5
Although Rodriguez discussed in Ground 19 that J.S. “made sexual misconduct claims” involving
J.S.’s mother and J.S.’s boyfriend, he did not argue that such claims were false. In contrast,
Claim 8, as argued on appeal, focuses explicitly on false claims of sexual misconduct. Moreover,
Ground 19 primarily concerned impeachment evidence against J.S. related to a car crash and is
wholly unrelated to false sexual abuse allegations. Herman, ¶ 22.
9
was not argued for in Rodriguez’s PCR petition. Accordingly, these claims, either in whole

or in part, as the case may be, are not considered.

¶15 Regarding the remaining trial counsel IAC claims argued on appeal, that is, Claims

1, 2, 3, 5, 6, portions of 7 and 8, 9, and a portion of 10, the governing standards provide

that “a petitioner seeking to reverse a district court’s denial of a petition for postconviction

relief based on a claim of ineffective assistance of counsel bears a heavy burden.” Whitlow

v. State, 2008 MT 140, ¶ 21, 343 Mont. 90, 183 P.3d 861 (citation omitted). This Court

applies the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984), in review of IAC claims. Jackson, ¶ 15 (citation omitted). The two-prong

test of Strickland requires a petitioner to show (1) that counsel’s performance was

constitutionally deficient, and (2) that counsel’s deficient performance prejudiced the

defense such that it deprived the petitioner of a fair trial. Jackson, ¶ 15 (citation omitted).

An attorney’s performance is deficient if their “conduct fell below an objective standard of

reasonableness measured under prevailing professional norms and in light of the

surrounding circumstances.” Whitlow, ¶ 20. However, there is a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance, and the

defendant “must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at

2065; Hamilton, ¶ 16. To establish Strickland’s second prong, prejudice, the defendant

must demonstrate a reasonable probability that, but for counsel’s deficient performance,

the result of the proceeding would have been different. Jackson, ¶ 17 (citing Strickland,

466 U.S. at 687, 104 S. Ct. at 2064). “‘A reasonable probability is a probability sufficient

10
to undermine confidence in the outcome.’” Jackson, ¶ 17 (quoting Strickland, 466 U.S. at

694, 104 S. Ct. at 2068).

¶16 In Claim 1, Rodriguez argues that trial counsel was ineffective for failing to

effectively confront and cross-examine the State’s primary witness, alleged victim J.S., and

her therapist, Ladd-Maxwell. Rodriguez contends that trial counsel had access to medical

records demonstrating J.S.’s inconsistent statements about the assault, memory loss,

somatization, pseudoseizures, and attention-seeking behavior, yet failed to use this

information to impeach J.S.’s credibility; did not effectively challenge the State’s

characterization of Ladd-Maxwell’s treatment of J.S. as routine medical care; failed to

rebut the State’s explanation that J.S.’s 12-year delay in disclosure of the sexual assault

was due to her strict Christian upbringing by confronting J.S. with evidence of household

dysfunction, including her mother’s unfaithfulness and her father’s drug use; and did not

challenge J.S.’s testimony by highlighting her tendency to imagine symptoms after reading

warnings on drug labels.

¶17 “This Court accords great deference to defense counsel’s exercise of judgment in

determining appropriate defenses and trial strategy.” Oliphant v. State, 2023 MT 43, ¶ 43,

411 Mont. 250, 525 P.3d 1214 (citation omitted). There is a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance and

hindsight review of counsel’s performance is highly deferential. See Whitlow, ¶ 15;

Oliphant, ¶ 39. The question is not merely whether counsel’s conduct flowed from

strategic decisions and trial tactics but, rather, whether it was based on “reasonable” or

“sound” professional judgment. Whitlow, ¶ 19 (citations omitted). Rodriguez must

11
nonetheless overcome a strong presumption that his counsel’s defense strategies and trial

tactics fall within a wide range of reasonable and sound professional decisions. Weaver v.

State, 2005 MT 158, ¶ 15, 327 Mont. 441, 114 P.3d 1039. This Court will not second-guess

counsel’s tactical decisions with the benefit of hindsight, particularly where there are

plausible reasons for limiting the scope of cross-examination of J.S. and Ladd-Maxwell.

See Oliphant, ¶ 29; Weaver, ¶ 25.

¶18 Rodriguez’s complaints in Claim 1 pertain to matters of trial tactics and strategy.

Chief among those reasons is the reasonable strategic concern that a more aggressive

inquiry into J.S.’s significant mental health struggles and related records could have

opened the door for the State to attribute those issues to trauma caused by the alleged sexual

assault itself—an anal rape physically forced upon a 15-year-old teenage girl by an adult

man in his car. Such calculated choices, particularly related to a sensitive subject,

necessarily require the careful consideration of counsel. The record reveals that, during

cross-examination of J.S., trial counsel effectively highlighted several material

inconsistencies in J.S.’s account of the alleged assault, including discrepancies regarding

the timing of the incident, her recollection of the vehicle, and details suggesting that the

assault could not have physically occurred in the manner J.S. described. We are not

persuaded that the approach taken by counsel in these circumstances fell outside the wide

range of reasonable professional judgment. Even assuming error, we are not persuaded

that an alternative approach would have provided a reasonable probability of a different

outcome, especially in view of the elements of counsel’s cross-examination that did attack

core aspects of J.S.’s allegations.

12
¶19 Rodriguez faults trial counsel for failing to challenge the State’s characterization of

Ladd-Maxwell’s treatment of J.S. as “routine” because, among other things, Ladd-Maxwell

treated J.S. for imaginary reactions to medications and that J.S. likely required a

“psychiatric admission.” However, trial counsel, in their affidavit, explained they

determined these issues would be ineffective arguments based on trial strategy. The mere

fact that defense counsel declined to pursue a particular line of cross-examination or to

assert a specific defensive tactic is generally insufficient, standing alone, to establish that

counsel’s performance was constitutionally deficient, particularly where plausible reasons

exist for limiting the scope of cross-examination. See Jackson, ¶ 32; Oliphant, ¶ 43.

Accordingly, we conclude that Claim 1 does not provide a basis for postconviction relief.

¶20 In Claim 2, Rodriguez argues trial counsel rendered ineffective assistance by failing

to impeach J.S. and her friend, Evans, regarding their testimony that, in 2008, they

observed Rodriguez’s black truck, bearing the logo “J.R.’s Roofing and Siding,” parked

outside J.S.’s apartment. Rodriguez contends trial counsel could have confronted J.S. and

Evans with evidence establishing that he was out of state between 2005 and 2009, had not

purchased the truck until 2009, did not apply the logos until 2011, and did not formally

register the business name with the Secretary of State until 2011, and that counsel’s failure

to highlight these timeline discrepancies permitted allegedly false testimony to go

unchallenged. The State correctly observes that, even assuming trial counsel possessed

documentation establishing that Rodriguez purchased the truck in 2009 and applied the

logos in 2011, Rodriguez has not demonstrated that either J.S. or Evans possessed personal

knowledge to testify about these items such that they could have responded to or refuted

13
that information. More importantly, trial counsel did cross-examine both J.S. and Evans

and elicited testimony that neither J.S. nor Evans actually saw Rodriguez at the time of the

alleged events, and elicited testimony that emphasized benign, innocent explanations for

the presence of the work truck outside J.S.’s apartment, such as the possibility that another

employee had driven it or that it had simply been parked next to a nearby hardware store.

Again, there is a strong presumption that trial counsel’s conduct fell within the range of

professionally competent assistance, see Strickland, 466 U.S. at 689, 104 S. Ct. at 2065,

and Hamilton, ¶ 12, and we conclude that Rodriguez has not overcome this presumption,

nor demonstrated that, but for counsel’s failure to pursue the particular avenues of

cross-examination now offered, the result of the proceeding would have been different.

See Weaver, ¶ 20; Jackson, ¶ 29. Accordingly, Claim 2 provides no basis for relief.

¶21 Under Claim 3, Rodriguez contends that trial counsel was ineffective for failing to

impeach J.S. regarding the date of the alleged assault, pointing to her multiple prior

statements, including a recorded interview with Detective Slaughter and testimony from a

friend, that the assault probably occurred in the spring of 2002, but no later than April 2003.

Rodriguez argues that, because the assault allegedly occurred in a Honda Civic and he did

not purchase or register his Honda Civic until June 27, 2003, J.S.’s trial testimony placing

the assault sometime after that date was impossible if her earlier statements were accurate.

Rodriguez contends that trial counsel possessed evidence of these prior inconsistent

statements and the purchase date of the Honda Civic but failed to introduce it or use it to

confront J.S. or Detective Slaughter.

14
¶22 The State responds that Rodriguez has not shown that J.S. possessed personal

knowledge of when Rodriguez purchased or registered the Honda Civic, and without

personal knowledge, J.S. could not properly testify as to that contention. Moreover, the

State points out that trial counsel did challenge J.S.’s timeline, including highlighting

inconsistencies in her recollections and contrasting her testimony with that of other

witnesses. Additionally, Stephens, Rodriguez’s roommate, provided testimony that

Rodriguez had possessed the Honda Civic for some period prior to its registration in

June 2003. Detective Slaughter explained at trial on direct that any reference in his report

to a 2002 date resulted from a mathematical error on his part, and he corrected the timeline

accordingly. The jury was thus presented with an explanation for the apparent discrepancy

and change in timeline that it was free to accept or reject. Further, defense counsel’s

cross-examination of J.S. challenged J.S.’s credibility on the timing of the alleged assault

without relying on matters outside J.S.’s personal knowledge, such as the precise date

Rodriguez acquired or registered the Honda Civic. “It is well within the norms of

reasonable professional conduct for counsel to limit their cross-examination to the facts of

the case rather than resorting to speculation unsupported by evidence.” McGarvey v. State,

2014 MT 189, ¶ 30, 375 Mont. 495, 329 P.3d 576 overruled in part on other grounds by

State v. Severson, 2024 MT 76, ¶ 16 n.5, 416 Mont. 201, 546 P.3d 765. Accordingly, we

conclude Claim 3 provides no basis for relief.

¶23 Regarding Claim 5, Rodriguez contends, citing City of Billings v. Nolan, 2016 MT

266, 385 Mont. 190, 383 P.3d 219, that trial counsel rendered IAC by failing to object to

J.S.’s in-court identification, which occurred approximately fifteen years after the alleged

15
offense. Rodriguez argues that this identification was impermissibly suggestive because

Rodriguez was obviously the defendant seated at the defense table. He further argues that

this identification carried a substantial likelihood of irreparable misidentification given the

lengthy delay between the alleged assault and the identification, the absence of any prior

description provided by J.S., and the lack of evidence regarding her degree of attention

during the alleged assault. However, the circumstances of J.S.’s in-court identification of

Rodriguez are readily distinguishable from the circumstances of the in-court identification

found in Nolan. In Nolan, the victim had never previously identified the defendant. See

Nolan, ¶ 22. Here, by contrast, the in-court identification occurred at the conclusion of

J.S’s direct examination, following an admission of a photograph she had personally taken

of Rodriguez in 2005. Moreover, and also in contrast to the victim in Nolan, J.S. had

substantial prior knowledge of Rodriguez: she knew his name, that he was an airman

rooming with Stephens, where he lived and worked in 2003, and the specific vehicles he

drove. “A defense counsel’s use of objections lies within his or her discretion,” and it’s

“not beyond the realm of reasonableness that defense counsel would not object during

certain times of the trial so as not to confuse the jury or bring undue attention to the

prosecution’s case.” Clausell v. State, 2005 MT 33, ¶ 20, 326 Mont. 63, 106 P.3d 1175

(citations omitted). Accordingly, we conclude Claim 5 provides no basis to grant

postconviction relief.

¶24 Regarding Claim 6, Rodriguez contends trial counsel was ineffective for failing to

exercise a peremptory challenge, as opposed to a for-cause challenge, against juror

Underwood, who indicated unfavorable responses and later served as jury foreperson.

16
Rodriguez asserts that trial counsel provided no strategic explanation for retaining juror

Underwood beyond the fact that juror Underwood claimed he could be fair and impartial

and that the decisions to challenge or retain jurors were made solely by trial counsel without

any input from Rodriguez. In their affidavit, however, trial counsel explained that

Rodriguez provided input into the use of peremptory challenges, that Rodriguez did not

raise any concerns about juror Underwood during trial, and that juror Underwood stated he

could be fair and impartial. Decisions concerning the exercise of peremptory challenges

“are essentially a matter of trial strategy” and therefore are entitled to deference. State v.

Herrman, 2003 MT 149, ¶ 31, 316 Mont. 198, 70 P.3d 738; see also Oliphant, ¶ 43.

“[P]eremptory challenges involve a very different dynamic than challenges for

cause . . . [and] are essentially a matter of trial strategy.” Herrman, ¶ 31. As we further

explained:

When counsel is exercising peremptory challenges, he or she is engaging in
a chess game with opposing counsel. In exercising each challenge, he or
she must keep an eye on the end result. That is, which twelve individuals are
going to end up constituting the jury. This entails considerable prioritizing.
Counsel must keep one eye on who is eliminated by virtue of his or her
challenge and the other eye on the composition of the remaining twelve
jurors. Counsel also has to second guess which juror will be challenged by
the State in its next move.

Herrman, ¶ 31. Rodriguez’s argument essentially boils down to the contention that trial

counsel should have exercised a peremptory strike against juror Underwood to the

exclusion of other potential jurors. Yet Rodriguez provides no evidence in the record

demonstrating that trial counsel’s decision to retain Underwood stemmed from

incompetence rather than tactical reasons. See Yarborough v. Gentry, 540 U.S. 1, 8,

17
124 S. Ct. 1, 5 (2003) (per curiam) (“When counsel focuses on some issues to the exclusion

of others, there is a strong presumption that he did so for tactical reasons rather than through

sheer neglect.”). The dynamics at play in the exercise of peremptory challenges, including

highly discretionary, tactical judgments made in the heat of the moment, underscore the

presumption that counsel’s trial decisions fall within a wide range of professionally

competent assistance. Based on Underwood’s responses to inquiries from both the State

and trial counsel during voir dire, trial counsel concluded that Underwood could serve

fairly and impartially, and decided that peremptorily challenging other jurors was a

superior strategic choice. We see nothing of record that would necessitate a contrary

determination. Juror Underwood’s answers included statements that could be considered

beneficial for the defendant. Rodriguez has not demonstrated that trial counsel’s failure to

remove Underwood fell outside of the wide range of professionally competent assistance.

¶25 Regarding the portion of Claim 7 that is considered on appeal, Rodriguez contends

trial counsel rendered IAC by failing to object to the State’s improper vouching for the

credibility of witness Paliga, Rodriguez’s fellow inmate in a jail pod while awaiting trial.

Rodriguez argues that the prosecutor impermissibly commented on Paliga’s credibility in

closing arguments by asserting that Paliga testified not due to a motive for leniency in his

own pending prosecution, but rather out of being a “good citizen.” Rodriguez asserts that

such direct commentary on a witness’s credibility constitutes reversible error and that no

reasonable defense attorney would have failed to object.

¶26 Prosecutors enjoy a wide latitude to present and elicit relevant incriminating

evidence and may properly comment on and argue “for any position or conclusion

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regarding the nature, quality, or effect of the evidence in relation to the applicable law and

the prosecutor’s burden of proof.” State v. Miller, 2022 MT 92, ¶ 22, 408 Mont. 316,

510 P.3d 17 (internal quotations and citations omitted, emphasis in original). Objections

during closing are matters of professional discretion, and counsel may reasonably decline

to object to avoid emphasizing the prosecution’s case. Clausell, ¶ 20. There is a strong

presumption that trial counsel’s decision to not object during closing arguments falls within

the wide range of reasonable professional assistance. See Whitlow, ¶ 21. Paliga testified

that he came forward with information despite receiving no plea deal in his own case and

faced the risk of being labeled a “snitch” in jail. The prosecutor’s reference to Paliga as a

“good citizen” was a permissible inference drawn from evidence rather than an

impermissible expression of personal opinion on Paliga’s veracity. See State v. Aker,

2013 MT 253, ¶ 26, 371 Mont. 491, 310 P.3d 506 (a prosecutor may suggest to the jury

inferences which may be drawn from witness testimony). Moreover, even assuming that

an objection to the prosecutor’s statement would have been sustained, Rodriguez has failed

to establish prejudice. He has not demonstrated a reasonable probability that but for

counsel’s failure to object the result of the proceeding would have been different. Jackson,

¶ 17. Accordingly, we conclude the portion of Claim 7 that is considered on appeal

provides no basis for relief.

¶27 Regarding the portion of Claim 8 that is considered on appeal, Rodriguez argues

that trial counsel was ineffective for not investigating whether J.S. falsely accused her uncle

of sexually assaulting her at age three. Rodriguez contends that, although trial counsel

interviewed the medical provider (State witness Bottomly) whose notes mentioned the

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alleged assault, trial counsel failed to request a pretrial evidentiary hearing under State

ex rel. Mazurek v. Fourth Jud. Dist. Ct., 277 Mont. 349, 922 P.2d 474 (1996) and

§ 45-5-511(3), MCA, to establish the accusation’s falsity and secure its admissibility at

trial.

¶28 “We assess a decision not to investigate for reasonableness in light of all of the

circumstances of the case, applying a heavy measure of deference to counsel’s judgments.”

Weaver, ¶ 17 (internal quotations and citation removed). Counsel is not ineffective simply

because counsel failed to conduct an investigation into possible exculpatory evidence.

Weaver, ¶ 17. Here, as the State points out, the only evidence Rodriguez identifies is a

handwritten note in Bottomly’s session records stating “[J.S.]—victim of sexual assault

when 3 yo.” Nothing in that note, or anywhere else in the record, suggests that J.S.’s

statement was false or that she fabricated the accusation against her uncle. Trial counsel

followed up by interviewing Bottomly, who confirmed there was no basis to conclude the

accusation was false. Without evidence of falsity, and as trial counsel points out in their

affidavit, trial counsel had no viable grounds to seek a Mazurek hearing or to pursue

admission of the allegation. “In cases where counsel fails to conduct adequate pretrial

investigation we focus our inquiry as to what information would have been obtained from

such investigation and whether such information would have produced a different result.”

Weaver, ¶ 21 (citation omitted). Ignoring admissibility issues presented by Montana’s

Rape Shield law, § 45-5-511, MCA, Rodriguez has not demonstrated that additional

investigation by trial counsel into alleged false accusations would have produced different

results. Accordingly, Claim 8 provides no basis for relief.

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¶29 Regarding Claim 9, Rodriguez argues that he was constructively denied his right to

counsel under the Sixth Amendment because communication with trial counsel was so

compromised that he was effectively denied counsel. He contends the complete breakdown

of communication amounted to structural error, making the trial fundamentally unfair.

Alternatively, he claims counsel’s performance was deficient by failing to consult him or

allow him to participate in decision making.

¶30 Trial counsel’s affidavit directly contradicts Rodriguez’s contentions of inadequate

communication. Trial counsel stated that they devoted significant time to developing and

discussing defense strategies, reviewed Rodriguez’s extensive prior counsel records, and,

notably, called Rodriguez multiple times per week throughout the entire case. The District

Court, noting it had personally observed trial counsel’s performance at trial, reviewed their

affidavit and found in the Order that their representation of Rodriguez “exceeded all

standards” and was not deficient.

¶31 While a defendant is entitled to effective assistance of counsel with whom an

adequate defense can be presented, there is no constitutional right to a “meaningful

relationship” with counsel. State v. Johnson, 2019 MT 34, ¶ 17, 394 Mont. 245, 435 P.3d

64. This Court accords great deference to counsel’s exercise of judgment in determining

trial strategy, and a claim that counsel could have communicated more is insufficient to

establish deficient performance. See Oliphant, ¶ 43 (“[T]he Whitlow Court specified that

how counsel performed at the time of the alleged shortcoming is the relevant period of

analysis.”). In other words, the proper focus for evaluating counsel’s performance is how

counsel acted at the time of the alleged deficiency, not on later speculation about whether

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more or better communication might have been possible. Given trial counsel’s affidavit,

and the District Court’s finding therefrom regarding performance of trial counsel, we

cannot conclude the District Court clearly erred in its assessment. Whitlow, ¶ 21.

¶32 Regarding the portion of Claim 10 that is considered on appeal, Rodriguez argues

that trial counsel rendered IAC by failing to object to Detective Slaughter providing

unqualified expert opinion testimony that physical evidence of trauma to the vagina or anus

was “very unlikely” due to their quick healing properties. Rodriguez contends that this

testimony constituted improper expert medical opinion from a lay witness and that no

reasonable counsel would have failed to object. He asserts that the failure to object was

deficient performance directly contrary to his defense theory, as the absence of physical

findings was a key point and allowing an unqualified officer to explain such medical details

bolstered the State’s case without challenge.

¶33 “We do not consider unsupported arguments; nor do we have an obligation to

formulate arguments or locate authorities for parties on appeal.” Herman, ¶ 22 (citation

omitted). Beyond a mere recitation of what Detective Slaughter said at trial, Rodriguez

provides no substantive legal authority or analysis demonstrating that the testimony from

Detective Slaughter was objectionable as unqualified expert opinion or that an objection

would have been sustained. Accordingly, the portion of Claim 10 that is considered on

appeal lacks merit and provides no basis to grant postconviction relief.

¶34 Regarding the cumulative effect of trial counsel’s alleged deficiencies, Rodriguez

contends he was prejudiced by the combined impact of the above-described claims of IAC

for trial counsel, citing Sanders v. Ryder, 342 F.3d 991 (9th Cir. 2003). He argues that the

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combined deficiencies created a reasonable probability of a different outcome, rendered

the proceeding fundamentally unfair, and established prejudice. However, as set forth

above, Rodriguez’s trial IAC claims lack merit. We have explained that “[t]he cumulative

error doctrine applies only when an appellant establishes multiple errors that collectively

prejudice his due process rights.” State v. Marfuta, 2024 MT 245, ¶ 21, 418 Mont. 353,

557 P.3d 1260 (citations omitted). We conclude there is no accumulating error that

requires reversal here.

¶35 Regarding IAC of appellate counsel, Rodriguez raised 18 such claims in his PCR

petition: Grounds 43–58, 61, and 63. On appeal, Rodriguez notes that the District Court

did not specifically address his claims of ineffective assistance of appellate counsel.

However, Rodriguez offers no argument that identifies any specific error committed by

appellate counsel, or explains how any such error fell outside the wide range of

professionally competent representation, or shows how the alleged errors prejudiced him.

In fact, Rodriguez’s argument is conditional: he contends that if this Court were to

determine that certain of his underlying IAC claims were record-based (and therefore could

and should have been raised by appellate counsel on direct appeal), then those omitted

claims would have been stronger than the IAC claims that appellate counsel actually chose

to present on direct appeal. However, such a brief general comparison does not satisfy the

burden of overcoming the presumption in favor of appellate counsel’s performance,

including the assessment of the strongest issues to raise. Insufficient support for an

individual issue may be a consequence of raising numerous issues, instead of heeding the

instruction provided by the Rules of Appellate Procedure, which provide that parties “are

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encouraged to limit the number of issues to 4 or fewer.” M. R. App. P. 12(1)(b). As noted

above, this Court cannot develop and articulate arguments for parties on appeal. Herman,

¶ 22.

¶36 With regards to whether the District Court abused its discretion by declining to grant

an evidentiary hearing, Rodriguez argues that copying limitations, combined with his

indigency and pro se status, effectively denied him adequate, effective, and meaningful

access to the courts. Rodriguez claims that these limitations prevented him from producing

and submitting 388 pages of additional exhibits, such as, for example, commentary from

another doctor to rebut the State’s expert witness. Rodriguez further argues that the District

Court abused its discretion by denying his motion for a standing order to compel the

copying of such documents, without considering alternatives, such as an evidentiary

hearing or waiver of copy requirements, which would have allowed him to present

evidence, and that, by issuing its denial order just 24 hours after service of the State’s

response and trial counsel’s affidavit, the District Court deprived Rodriguez of any

opportunity to rebut the factual claims made in the State’s response and trial counsel’s

affidavit.

¶37 Rodriguez’s principal complaint is that the District Court refused to compel the

Department of Corrections or Montana State Prison to provide free copies of 388 additional

pages of exhibits (totaling 1,164 pages when copied for all required parties) that he

wished to file after submitting his PCR petition. Yet Rodriguez offered no explanation

why some portion of these materials could not have been attached to the original

petition. Section 46-21-104(1)(c), MCA, requires neither “volume” nor exhaustive

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supplementation; it requires only that the petition identify the supporting facts and attach

the evidence necessary to establish them. Herman, ¶ 17. Rodriguez has failed to do so. In

any event, the record before the District Court, including the PCR petition, trial counsel’s

affidavit, and the State’s response, contained ample information to understand and assess

Rodriguez’s ineffective assistance of counsel claims on the merits, and we conclude there

was no abuse of discretion. See Hamilton, ¶ 11 (“[A] district court may dismiss a petition

for postconviction relief without ordering a response if the petition, files, and records

‘conclusively show that the petitioner is not entitled to relief.’”). For these reasons, the

District Court acted within its discretion in dismissing the PCR petition without an

evidentiary hearing or other relief.

¶38 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. The District Court’s

findings were not clearly erroneous, its conclusions of law were correct, and it did not

abuse its discretion.

¶39 Affirmed.

/S/ JIM RICE

We Concur:

/S/ CORY J. SWANSON
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ INGRID GUSTAFSON

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