from the District Court of Hot Springs County The Honorable
Robert E. Skar, Judge.
of the State Public Defender: Diane M. Lozano, Wyoming State
Public Defender; Valerie Schoneberger, Senior Assistant
Appellate Counsel. Argument by Ms. Schoneberger.
K. Michael, Wyoming Attorney General; Christyne M. Martens,
Deputy Attorney General; Russell Farr, Senior Assistant
Attorney General. Argument by Mr. Farr.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Monty Sullivan filed a petition under the Post-Conviction
Determination of Factual Innocence Act claiming new evidence
showed he was innocent of the first-degree sexual abuse of a
minor for which he was convicted in 2009. The district court
dismissed the petition for failing to identify newly
discovered evidence and for making conclusory claims, and Mr.
Sullivan appeals. We affirm.
Mr. Sullivan presents two issues on appeal, which he states
I. Did the district court err in finding Mr. Sullivan did not
present newly discovered evidence in his post-conviction
petition for determination of factual innocence?
II. Was this denial premature in light of the district
court's refusal to grant Mr. Sullivan an evidentiary
Mr. Sullivan was convicted of two counts of first-degree
sexual abuse of a minor in 2009. We described the underlying
facts in our decision affirming the conviction:
In February of 2009, the Wyoming Department of Family
Services (DFS) took K.T., a minor child who was then nine
years old, to the Child Advocacy Project (CAP) in Casper,
Wyoming, to be interviewed. During the interview, K.T.
revealed that on two separate occasions in her
grandmother's bedroom, Sullivan attempted to have sex
with her but because it was too painful, K.T. stated that
Sullivan anally raped her when she was seven and eight years
old. K.T. also revealed that Sullivan made her taste his
semen, and that there were occasions when Sullivan made her
sit on his lap while he watched pornography on the computer.
During one specific instance, K.T. recalled that Sullivan was
rubbing K.T.'s private area through her clothes.
The Thermopolis Police Department interviewed Sullivan after
learning of the CAP interview with K.T. They informed
Sullivan of K.T.'s allegations, which he initially
denied. Eventually, Sullivan admitted to law enforcement that
he had done to K.T. what she alleged him to have done.
Sullivan v. State, 2011 WY 46, ¶¶ 3-4, 247
P.3d 879, 880-81 (Wyo. 2011) (footnote omitted).
In 2011, following this Court's mandate affirming the
judgment against him, Mr. Sullivan filed a petition for
post-conviction relief. He claimed that his trial counsel was
ineffective and that his appellate counsel was ineffective in
failing to assert ineffective assistance of counsel in his
direct appeal. Mr. Sullivan argued several grounds for his
ineffective assistance of trial counsel claim, including: 1)
failure to challenge his confession to law enforcement; 2)
failure to depose the victim's physician; 3) failure to
present expert testimony regarding alleged defects in the
victim interview; and 4) failure to present evidence of
sexual abuse of the victim by her uncle. The district court
denied Mr. Sullivan's petition, and this Court denied his
petition for a writ of review.
On April 23, 2018, Mr. Sullivan filed a pro se
petition for relief under the Post-Conviction Determination
of Factual Innocence Act (hereinafter "Act" or
"Factual Innocence Act"). As grounds for his
petition, he asserted newly discovered evidence consisting
of: 1) a defense counsel interview of the victim's
physician during which the physician stated that he found
limited signs of sexual abuse, that he referred the victim to
a gynecologist, and that the record contained no indication
that a rectal examination of the victim had been performed;
2) the victim's prior allegations against her biological
father and uncle; 3) a February 22, 2018 newspaper article
reporting that the victim's uncle, Glenn Tanner, had pled
guilty to the 2007 ...