46-21-201. Proceedings on petition. (1) (a) Unless the petition and the files and records of the case conclusively show that the petitioner is not entitled to relief, the court shall cause notice of the petition to be served upon the county attorney in the county in which the conviction took place and upon the attorney general and order them to file a responsive pleading to the petition. Following its review of the responsive pleading, the court may dismiss the petition as a matter of law for failure to state a claim for relief or it may proceed to determine the issue.
     (b) If the death sentence has been imposed, upon receipt of the response or responses to the petition, the court shall promptly hold a conference to determine a schedule for the expeditious resolution of the proceeding. The court shall issue a decision within 90 days after the hearing on the petition or, if there is no hearing, within 90 days after the filing of briefs as allowed by rule or by court order. If the decision is not issued during that period, a party may petition the supreme court for a writ of mandate or other appropriate writ or relief to compel the issuance of a decision.
     (c) To the extent that they are applicable and are not inconsistent with this chapter, the rules of procedure governing civil proceedings apply to the proceeding.
     (2) If the death sentence has not been imposed and a hearing is required or if the interests of justice require, the court shall appoint counsel for a petitioner who qualifies for the appointment of counsel under Title 46, chapter 8, part 1.
     (3) (a) Within 30 days after a conviction for which a death sentence was imposed becomes final, the sentencing court shall notify the sentenced person that if the person is indigent and wishes to file a petition under this chapter, the court will appoint counsel who meets the Montana supreme court's standards for competency of appointed counsel in proceedings under this chapter for an indigent person sentenced to death.
     (b) Within 75 days after a conviction for which a death sentence was imposed upon a person who wishes to file a petition under this chapter becomes final, the sentencing court shall:
     (i) appoint counsel to represent the person if the court finds that the person is indigent and either has accepted the offer of appointment or is unable to competently decide whether to accept the offer of appointed counsel;
     (ii) if the offer is rejected by a person who understands the legal consequences of the rejection, enter findings of fact after a hearing, if the court determines that a hearing is necessary, stating that the person rejected the offer with an understanding of the legal consequences of the rejection; or
     (iii) if the court finds that the petitioner is not indigent, deny appointment of counsel.
     (c) The court may not appoint counsel who has previously represented the person at any stage in the case unless the person and the counsel expressly agree to the appointment.
     (d) If a petitioner entitled to counsel under this subsection (3) is not indigent at the time that the court's determination is made under subsection (3)(b) but thereafter becomes indigent at any stage of the proceedings, the court shall appoint counsel as provided in subsection (3)(b)(i).
     (e) The expenses of counsel appointed pursuant to this subsection (3) must be paid as provided in 46-8-201.
     (f) Violation of this subsection (3) is not a basis for a claim or relief under this chapter.
     (4) The court, for good cause, may grant leave to either party to use the discovery procedures available in criminal or civil proceedings. Discovery procedures may be used only to the extent and in the manner that the court has ordered or to which the parties have agreed.
     (5) The court may receive proof of affidavits, depositions, oral testimony, or other evidence. In its discretion, the court may order the petitioner brought before the court for the hearing.
     (6) If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and any supplementary orders as to reassignment, retrial, custody, bail, or discharge that may be necessary and proper. If the court finds for the prosecution, the petition must be dismissed.

     History: En. 95-2605 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 45, Ch. 184, L. 1977; R.C.M. 1947, 95-2605; amd. Sec. 5, Ch. 195, L. 1981; amd. Sec. 230, Ch. 800, L. 1991; amd. Sec. 6, Ch. 378, L. 1997.