State v. K. Garding

07/21/2026 DA 24-0732 Case Number: DA 24-0732 IN THE SUPREME COURT OF THE STATE OF MONTANA 2026 MT 157 STATE OF MONTANA, Plaintiff and Appellee, v. KATIE IRENE GARDING, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-2010-160 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Toby Cook, Larry Mansch, Cook & Associates PLLC, Missoula, Montana For Appellee: Austin Knudsen, Montana Attorney General, Roy Brown, Brad Fjeldheim, Assistant Attorneys General, Helena, Montana Matthew C. Jennings, Missoula County Attorney, Missoula, Montana Submitted on Briefs: January 28, 2026 Decided: July 21, 2026 Filed: __________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Appellant Katie Irene Garding (Garding) appeals from the December 16, 2024 Order of the Fourth Judicial District Court, Missoula County, reinstating her convictions for Vehicular Homicide While Under the Influence, Failure to Stop Immediately at an Accident Scene Involving an Injured Person, and Driving Without a Valid Driver’s License. The District Court ordered the Montana Department of Corrections to resume custody over her. We affirm in part and reverse in part. ¶2 We restate the dispositive issue on appeal: Whether the District Court erred in reinstating Garding’s convictions following Garding’s outstanding motion for judicial substitution. FACTUAL AND PROCEDURAL BACKGROUND ¶3 The facts underlying Garding’s charges have been set forth on numerous occasions. See State v. Garding (Garding I), 2013 MT 355, 373 Mont. 16, 315 P.3d 912; Garding v. State (Garding II), 2020 MT 163, 400 Mont. 296, 466 P.3d 501; Garding v. Mont. Dep’t of Corr. (Garding III), No. CV 20-105-M-DLC, 2023 WL 3086883 (D. Mont. March 27, 2023); and Garding v. Mont. Dep’t of Corr. (Garding IV), 105 F.4th 1247 (9th Cir. 2024), cert. denied, ___ U.S. ___, 145 S. Ct. 1951 (2025). We will not recite them again as they have no bearing on the issue we need to resolve. On June 10, 2011, a jury convicted Garding of all charges and she received a total sentence of forty years to prison. Garding I, ¶ 17. ¶4 In 2013, Garding filed an appeal to this Court challenging her conviction on three grounds. Garding I, ¶ 17. Garding argued that the district court erred by limiting the 2 Defendant’s cross-examination of the State’s informant thus violating her right of confrontation; permitting an undisclosed expert witness to testify for the State; and preventing her expert from testifying regarding matters disclosed within the expert’s report. Garding I, ¶¶ 20, 26, 35. We affirmed the district court. Garding I, ¶ 41. In our holding we concluded Garding had been afforded the opportunity to cross-examine the State’s informant regarding any potential bias and was provided with ample time to interview the State’s undisclosed expert witness. Further, we held that the district court’s limitation on Garding’s expert witness testimony was harmless error. Garding I, ¶ 40. ¶5 In 2015, Garding filed a petition for postconviction relief in the district court alleging she received ineffective assistance of counsel (IAC) due to her trial counsel’s failure to hire an accident reconstructionist; discovery violations under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); and that a post-trial crash reconstruction analysis constituted newly discovered evidence satisfying the exception to the one-year time bar for postconviction relief petitions. Garding II, ¶ 10. The district court granted the State’s motions for summary judgment and denied Garding’s postconviction relief claim after a hearing. Garding II, ¶ 11. Garding appealed the denial of her postconviction relief petition in 2020. Garding II, ¶ 11. This Court affirmed the district court. Garding II, ¶ 42. We first held Garding’s IAC claim failed under the Strickland1 standard because the decision to not hire an accident reconstructionist was not outside the wide range of professionally competent assistance. Garding II, ¶ 23. Second, this Court concluded Garding’s claim 1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). 3 under Brady failed. We determined both the victim’s x-rays and photos of an unrelated 2005 motor vehicle crash were not in the prosecution’s possession. Garding II, ¶ 35. Further, the photos of the unrelated 2005 motor vehicle crash were not material or exculpatory and were, therefore, exempt from the requirements imposed by Brady on the prosecution. Garding II, ¶ 35. Finally, this Court found the district court correctly rejected Garding’s new evidence claim, as the accident reconstruction analyses offered by Garding’s experts were merely newly analyzed evidence. Garding II, ¶ 42. ¶6 In 2023, having exhausted state remedies, Garding filed a 28 U.S.C. § 2254(d)(1) petition for habeas corpus in federal district court challenging her convictions. Garding III, 2023 WL at *1. In Garding’s petition, she raised three claims: (1) the State violated Brady by failing to produce x-rays of the victim’s leg taken by Dr. Dale, (2) the State violated Brady by failing to produce the 2005 accident photographs, and (3) Garding’s counsel was ineffective for failing to secure an accident reconstruction expert. Garding III, 2023 WL at *4. The federal district court concluded this Court had misapplied Strickland because the expert testimony of a crash reconstructionist would have established, within a reasonable degree of certainty, that Garding’s vehicle could not have been the vehicle that struck the victim. Garding III, 2023 WL at *4. However, the federal district court denied Garding’s Brady claims. Garding III, 2023 WL at *19. Accordingly, the federal district court granted Garding’s writ of habeas corpus and ordered that the State, within 30 days, either (1) move to vacate the state criminal judgment and renew proceedings against Garding in the state trial court, or (2) immediately and unconditionally release Garding from all custody that was imposed for her prior convictions, and that Garding may not be 4 retried. Garding III, 2023 WL at *20. The State was required to file notice by April 21, 2023, with the federal district court if it intended to renew proceedings in state court. Garding III, 2023 WL at *20. ¶7 On April 19, 2023, the State filed a motion with the state District Court to renew proceedings and set a status hearing. Thereafter, the state District Court, “pursuant to the Order in the United States District Court,” vacated Garding’s criminal judgment, reinstated the 2011 Information, and renewed criminal proceedings against Garding. In response to the renewed criminal action, Garding filed a motion to substitute the district judge. ¶8 Both the State and Garding appealed and cross-appealed, respectively, the federal district court’s partial grant of habeas corpus relief. Garding IV, 105 F.4th at 1250. While the proceeding was pending before the Ninth Circuit, the parties stipulated to continue the Status Conference in the District Court pending the Ninth Circuit’s decision. ¶9 On June 28, 2024, the United States Court of Appeals for the Ninth Circuit reversed the federal district court’s decision on the IAC claim and affirmed the denial of the Brady claims. Garding IV, 105 F.4th at 1260. The Ninth Circuit noted that the state court judgment had been set aside only because of the federal district court’s habeas decision. It held “[t]he State here moved for a new trial in state court only under compulsion of the [Garding III] habeas order, which otherwise barred retrial.” Garding IV, 105 F.4th at 1255. The Ninth Circuit concluded that this Court was “objectively reasonable in determining that Garding failed to establish an ineffective assistance of counsel claim under Strickland or any Brady violations.” Garding, 105 F.4th at 1260. 5 ¶10 In response to the Ninth Circuit’s reversal, the District Court issued an order reinstating Garding’s conviction in December 2024. In the order, the District Court stated it found the mandate from the Ninth Circuit controlling and ordered the Montana Department of Corrections resume its supervision over Garding. Garding appeals from this order. STANDARD OF REVIEW ¶11 In analyzing the legality of the sentence imposed, this Court looks to whether the sentencing court possessed the requisite statutory authority, whether the sentence was within the prescribed parameters of the sentencing statute, and whether the court observed the mandates of the sentencing statute. State v. Ariegwe, 2007 MT 204, ¶ 174, 338 Mont. 442, 167 P.3d 815 (citations omitted). Under the legality standard, this Court looks for the correctness of the district court’s sentence, which is a determination of law, and therefore review is de novo. Ariegwe, ¶ 175. DISCUSSION ¶12 “States possess primary authority for defining and enforcing the criminal law.” Engle v. Isaac, 456 U.S. 107, 128, 102 S. Ct. 1558, 1572 (1982). Thus, “[b]ecause federal habeas review overrides the States’ core power to enforce criminal law, it intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.” Shinn v. Ramirez, 596 U.S. 366, 376, 142 S. Ct. 1718, 1731 (2022) (citations omitted). Federal intervention into state criminal justice systems “disturbs the State’s significant interest in repose for concluded litigation” and undermines the state’s sovereign power to enforce criminal laws enacted by States’ representative bodies. Harrington v. Richter, 562 U.S. 6 86, 103, 131 S. Ct. 770, 787 (2011). “If the state trial is merely a ‘tryout on the road’ to federal habeas relief, that ‘detract[s] from the perception of the trial of a criminal case in state court as a decisive and portentous event.’” Shinn, 596 U.S. at 377, 142 S. Ct. at 1751 (quoting Wainwright v. Sykes, 433 U.S. 72, 90, 97 S. Ct. 2497, 2508 (1977)). ¶13 The “conditional” writ of habeas corpus declares that a petitioner “is being held in custody in violation of his constitutional (or other federal) rights[,]” but delays release of the petitioner to allow the state an opportunity to cure the constitutional violation found by the federal court. Harvest v. Castro, 531 F.3d 737, 741-42 (9th Cir. 2008). When a federal district court issues a writ of habeas corpus, “[r]eversal undoes what the habeas court did and makes lawful a resumption of the custody.” Eagles v. United States, 329 U.S. 304, 308, 67 S. Ct. 313, 316 (1946). See Knewel v. Egan, 268 U.S. 442, 448, 45 S. Ct. 522, 525 (1925) (“The order of the [d]istrict [c]ourt discharging the appellant from custody is reversed and the case remanded to the [d]istrict [c]ourt with direction to remand him to the custody of the present sheriff.”); James v. Amrine, 140 P.2d 362, 366 (Kan. 1943) (“It follows . . . that the court below erred in ordering release of petitioner and that the [judgment ordering the] release of the petitioner . . . is reversed with directions to set aside the order of discharge and to deny the writ.”). In Eagles, the Supreme Court explained: Under our decisions the case would be moot if the writ of habeas corpus had been denied below and, pending disposition of the petition here, [the petitioner] had received a discharge from the army. That situation, like the case of a prisoner who, pending an appeal from denial of a writ of habeas corpus, is granted bail, would present no existing controversy. Habeas corpus is the means of making judicial “inquiry into the cause of the restraint of liberty.” . . . If the custody or restraint of liberty is terminated without use of the writ, the case is finished. Different considerations are brought into play if custody is ended through the writ itself. 7 Eagles, 329 U.S. at 306-07, 67 S. Ct. at 315 (citations omitted; emphasis added). ¶14 The Eagles’ principle was applied in Lovallo v. Froehlke, 468 F.2d 340 (2d Cir. 1972), a case procedurally like this case in that the government was compelled to take an action following the issuance by the court of a writ of habeas corpus that was later reversed on appeal. Petitioner challenged the decision of the Secretary of the Army recalling him to active duty and the lower court granted petitioner’s writ of habeas corpus as a conscientious objector. Lovallo, 468 F.2d at 341. The lower court was reversed by the Second Circuit which, relying on Eagles, explained that “[w]hen Lovallo was separated from the custody and control of the Army it was because of [the district court’s] order and only because of it.” Lovallo, 468 F.2d at 344-45. Similar to the facts present here, “[i]f there had been no [d]istrict [c]ourt order granting the writ of habeas corpus, the Army would not have dreamed of separating Lovallo from active duty . . . [and] . . . the action of the Army in following [the district court’s] order is not fatal to its power to get Lovallo back upon a reversal of that order.” Lovallo, 468 F.2d at 344-45. ¶15 The current controversy is a peculiar mix of the federal district court’s order and Montana’s substitution rule allowing for substitution of a district judge. Here, the federal district court issued an “alternative” order directing the State to reinstate proceedings by commencing a new trial within 30 days of the date of the order and by requiring notice be provided to the District Court on or before April 21, 2023, at 12:00 p.m., or otherwise Garding must be released from custody and may not be retried. The State sought to appeal the district court’s issuance of the writ, but, as the Ninth Circuit recognized, was compelled 8 to reinstate proceedings or lose its option of prosecuting Garding. This action concomitantly required Garding to exercise her right of substitution or lose it for failure to have timely filed it. Importantly, because the conditional writ provided for dismissal or a new trial, Garding could file for substitution because a new proceeding would have commenced. ¶16 When the matter came back to state District Court following the Ninth Circuit’s decision, Garding no longer had the option of a new trial. Although the better procedure would have been for the District Court to address Garding’s pending substitution motion before acting on the State’s motion to reinstate, the omission does not require vacatur under the unique circumstances of this case. Section 3-1-804(4), MCA, gave Judge Larson limited authority to determine whether the substitution motion was timely and effective. By the time the State moved to reinstate Garding’s conviction, the Ninth Circuit had reversed the conditional writ, no renewed prosecution or retrial remained pending, and the legal predicate for Garding’s requested substitution no longer existed. Thus, even assuming Garding’s April 24 filing required a ruling, the motion could not afford her the relief she sought. The law neither does nor requires idle acts, § 1-3-223, MCA, and the law respects form less than substance, § 1-3-219, MCA. We therefore do not condone bypassing the substitution statute; we hold only that, in this unusual habeas-reversal posture, Judge Larson’s failure to enter a separate order denying the substitution motion does not warrant vacating the reinstatement order. ¶17 Applying the foregoing authority to the facts here, we conclude that after the federal district court was reversed, what remained was for the state District Court to reinstate 9 Garding’s conviction, as there no longer was a conditional writ that established a constitutional violation concerning Garding’s state conviction. When the Ninth Circuit reversed the federal district court, it removed the conditional writ and nullified the order granting it, in addition to all actions that occurred thereafter. The decision of the Ninth Circuit specifically determined that Garding was not denied effective assistance of counsel and that she, therefore, was not entitled to a new trial. Accordingly, the substitution motion filed by Garding was of no consequence since the order upon which it was premised––the district court’s order granting her writ––was reversed. Section 3-1-804, MCA, requires a new “criminal action” with an “initial pleading,” and the triggering mechanism of an “arraignment.” Because Garding was not granted a new trial, the requirements of § 3-1-804, MCA, never came into play. Here, due to the reversal of federal habeas corpus relief, Garding is no longer entitled to substitution for a retrial that is now a legal fiction. The effect of the Ninth Circuit’s decision was to allow for reinstatement of Garding’s conviction and continue the proceedings before Judge Larson, which is what the State did when it filed its motion to reinstate. There is no right of substitution in the middle of a proceeding, much less after the proceeding has been concluded and the defendant stands convicted. Thus, Garding had no right of substitution since there was no new proceeding triggering the substitution statute. This is because the effect of that reversal “und[id] what the habeas corpus court did and ma[de] lawful resumption of custody.” Eagles, 329 U.S. at 308, 67 S. Ct. at 316. ¶18 However, when the State filed its motion to reinstate Garding’s conviction, it filed a pleading to which Garding had a due process right to respond and be heard by the court. 10 Further, Garding is not prevented from seeking collateral relief by filing a new petition raising what has been described by the Dissent as reliable new evidence which follows our decision on Garding’s first petition for postconviction relief. In the event Garding files another petition, it will be for the trial court to decide whether that evidence––the State’s abandonment of its initial trial theory and tacit admission that it was physically impossible for the accident to have occurred as it was presented at trial––constitutes newly discovered evidence entitling Garding to another postconviction proceeding. ¶19 We conclude that Garding was not entitled to substitute the district judge in this proceeding because none of the statutory requirements of the substitution rule had been triggered. We further conclude that Garding is entitled to respond to the State’s motion to reinstate her conviction. CONCLUSION ¶20 Affirmed in part and reversed in part. This matter is remanded for further proceedings consistent with this Opinion. /S/ LAURIE McKINNON We Concur: /S/ CORY J. SWANSON /S/ KATHERINE M. BIDEGARAY /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ JIM RICE 11 Chief Justice Cory J. Swanson, concurring. ¶21 I concur with the Court’s Opinion and disposition of this matter. I write separately to indicate agreement with the Special Concurrence and Dissent in two main respects. ¶22 First, the Special Concurrence and Dissent is correct that the United States District Court overstepped its habeas corpus authority in issuance of the alternative writ. There is a difference between ordering release of a state criminal defendant due to a violation of federal civil rights and improperly interfering with the state court’s judgment and conviction. This prompted the reversal by the Ninth Circuit, but it created the problem of how the state district court could reverse its erroneous vacating of her conviction—which was an error forced upon it by the federal court. While I agree this situation forced the state district court into an error to undo its prior error, I join the Opinion because I believe the Court’s outcome has provided a path to address the error. ¶23 Secondly, I share the concerns in the Special Concurrence and Dissent that the discovery of new evidence leaves us with the likelihood of a procedurally and/or factually innocent defendant. Not only is that every prosecutor’s nightmare, but the possibility carries with it the realization the actual culprit of the fatal hit and run may still remain at large. While I agree the newly-alleged evidence may qualify for a new postconviction relief proceeding under Henderson, I do not join the recommendation that this Court should order Garding’s exonerative release. Barring a change of position from the State, the evidence should be presented at the trial court level, requiring Garding to carry her burden to overturn her conviction. Garding’s claims of innocence may or may not hold up under scrutiny of the adversarial process. 12  /S/ CORY J. SWANSON Justice Ingrid Gustafson, specially concurring in part and dissenting in part. ¶24 I specially concur that the District Court erred in reinstating Garding’s conviction without providing her an opportunity to respond and be heard on the State’s motion to reinstate her conviction. I also specially concur that as Garding was not granted a new trial, no new proceeding arose to trigger the right to seek judicial substitution. However, I part ways with the Opinion remanding to the District Court to permit Garding to respond and be heard as to the State’s motion to seek reinstatement of conviction; I would instead vacate the District Court’s order and remand for Garding’s exonerative release. The District Court’s order reinstating conviction was wrong as a matter of law, constitutionally intolerable as Katie Garding is substantively innocent, and ultimately a grave miscarriage of justice. Federal Habeas Rulings Do Not Revise State Court Rulings ¶25 As a preliminary matter, the Ninth Circuit’s mandate was not “controlling” and the District Court erred as a matter of law when it reinstated Garding’s conviction on such basis. “Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him.” Fay v. Noia, 372 U.S. 391, 430, 83 S. Ct. 822, 844 (1963) (overruled on other grounds). A federal court, however, can only act on the body of the petitioner; “it has no other power” and certainly “cannot revise [] state court judgment[s],” or reinstate state court convictions. Fay, 372 U.S. at 431, 83 S. Ct. at 844; see In re Medley, 134 U.S. 160, 173, 10 S. Ct. 384, 388 (1890) (“under 13 the writ of habeas corpus we cannot do anything else than discharge the prisoner from the wrongful confinement”). Thus, a grant of federal habeas relief to a state prisoner does not purport to interfere with any state court’s criminal judgment or conviction. Fay, 372 U.S. at 431, 183 S. Ct. at 844. Indeed, it would be patent error for a federal court to revise or interfere in a state court’s criminal proceedings. See Wood v. Ercole, 644 F.3d 83, 99 n.13 (2d Cir. 2011) (“[T]his Court only has the power to act on the body of the prisoner, not on the conviction itself.”); Coulter v. McCann, 484 F.3d 459, 466 (7th Cir. 2007) (“There is no authority in the habeas corpus statute for a federal court to remand or transfer a proceeding to the competent state court.”); Dickerson v. Vaughn, 90 F.3d 87, 92 (3d Cir. 1996) (“because federal courts should not interfere with a state’s conduct of its litigation, a district court should not directly order a state to grant a defendant an appeal”); Henderson v. Frank, 155 F.3d 159, 168 (3d Cir. 1998) (“we lack the ability to ‘revise the state court judgment’” as “federal habeas power is limited, first, to a determination of whether there has been an improper detention by virtue of the state court judgment; and second, if we find such an illegal detention, to ordering the immediate release of the prisoner”); Duhamel v. Collins, 955 F.2d 962, 968 (5th Cir. 1992) (“A federal court does not, however, have authority to commute a death sentence to life imprisonment.”); Wilson v. Lawrence Cnty., 154 F.3d 757, 761 (8th Cir. 1998) (“A federal writ of habeas does not reverse or void the state judgment of conviction.”); Magwood v. Smith, 791 F.2d 1438, 1450 (11th Cir. 1986) (“a federal district court or [federal] court of appeals has no appellate authority over a state criminal case and hence has no authority to ‘remand’ a case to the state courts”); see also Moore v. Zant, 972 F.2d 318, 320 (11th Cir. 1992) (“The grant of the writ says that 14 petitioner’s current incarceration is unlawful, but it does not usually adjudicate the constitutionality of future state acts directed at the petitioner.”). This limitation on federal habeas relief is further recognized by state courts. See People ex rel. Madigan v. Snyder, 804 N.E.2d 546, 555 (Ill. 2004) (holding that defendants’ state court judgments, though now unenforceable, remained intact following grant of federal habeas relief because “the federal court had no authority to revise the judgment”); Commonwealth v. Lesko, 15 A.3d 345, 364-65 (Penn. 2011) (“[A] proper grant of federal habeas relief to a state prisoner does not purport to revise or interfere with the state court’s criminal judgment.”); People v. Green, 136 Cal. Rptr. 241, 242 (Cal. App. 1st Dist. 1977) (“[A] habeas corpus action in a federal district court is a collateral action in which relief is limited to acting upon the person of a state prisoner . . . . California courts also have recognized that a federal district court cannot impose a duty to act upon any state court and that a state court acts independently and voluntarily in responding to a federal order.”). ¶26 Here, the Ninth Circuit recognized its limited power by merely ordering the federal district court to remove “the current federal court impediment to any state court reinstatement of the judgment and cancellation of the new trial.” Thus, the mandate merely directed the federal district court to remove the conditional writ which had required the State to “move to vacate the state criminal judgment and renew proceedings against Garding in the trial court” or “unconditionally release Garding from all custody.” ¶27 Acknowledging the removal of the federal court impediment, the State moved to reinstate Garding’s conviction. The District Court requested briefing on the State’s motion and Garding raised a number of constitutional issues, including that the District Court 15 lacked jurisdiction to rule on the State’s motion on account of its failure to rule on her pending motion for substitution. Rather than address the jurisdictional and constitutional issues raised by Garding, the District Court reinstated Garding’s conviction solely upon “find[ing] the Mandate from the United State [sic] Court of Appeals for the Ninth Circuit controlling.” The mandate, however, only directed the federal district court to remove the federal habeas bar; it did not order reinstatement of Garding’s conviction—nor could it, since its power as a federal court in habeas is limited to custodial releases. ¶28 The Ninth Circuit’s reversal of habeas relief “undoes” the actions of the habeas court—that is, the U.S. District Court of Montana. Thus, the reversal “undoes” the U.S. District Court of Montana’s issuance of the conditional writ, allowing the State to move to reinstate the conviction in lieu of pursing new proceedings, if it so chooses. The Ninth Circuit’s reversal does not, however, “undo” the actions taken by the state District Court— that is, the Fourth Judicial District Court, Missoula County. At a minimum, the District Court had an obligation to exercise independent judicial authority to make an independent state law determination as to whether reinstatement was proper in light of the State admitting the physical impossibility of the theory of the accident it presented at trial. ¶29 Accordingly, the Ninth Circuit’s mandate does not “undo” the District Court’s April 20, 2023 Order Setting Scheduling Conference which vacated Garding’s conviction, ordered her release from custody, and reinstated the May 16, 2011 Amended Information for the State to renew proceedings. Nor does the mandate “undo” the District Court’s subsequent actions and related proceedings. The mandate merely removes the federal bar 16 on custody. Thus, the District Court erred as a matter of law when it reinstated Garding’s conviction solely on finding the mandate “controlling.” Garding’s Conviction is Constitutionally Intolerable ¶30 The reinstatement of Garding’s conviction is constitutionally intolerable. The accident reconstruction tests, modeling, and expert analyses presented postconviction constitute new evidence sufficient to establish Garding’s actual substantive innocence. Thus, the reinstatement of her conviction is the “quintessential miscarriage of justice,” as it is the “fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” See Schlup v. Delo, 513 U.S. 298, 324-25, S. Ct. 851, 866 (1995) (quoting In re Winship, 397 U.S. 358, 372, 90 S. Ct. 1068, 1077 (1970) (Harlan, J., concurring)). ¶31 Following her conviction, Garding brought a timely petition for postconviction relief alleging new evidence of actual innocence accompanied by claims of ineffective assistance of counsel on account of trial counsel’s failure to hire an accident reconstructionist. Garding also alleged Brady violations based on the State’s failure to produce x-rays of Parsons’ legs, which depicted only a relatively minor fracture to his left fibula, as well as the State’s failure to produce photographs of an unrelated 2005 vehicle-pedestrian accident involving a vehicle similar to Garding’s which resulted in comparable injuries to the pedestrian but significant damage to the hood and windshield of the vehicle. ¶32 Following a hearing, the district court summarily dismissed Garding’s new evidence claim and the Brady violation related to the x-rays. The court concluded Garding failed to 17 establish “that there was no way of conducting any of the new analysis in 2011,” and that she failed to “show[] that the new evidence could not have been obtained in 2011.” The district court did, however, allow the accident reports to be considered with respect to Garding’s ineffective assistance of counsel claims. ¶33 After a hearing on Garding’s remaining claims, the court denied postconviction relief, concluding the accident photos for which her Brady claim was based were not material and likely inadmissible. As to Garding’s claim of ineffective assistance of counsel, the court found trial counsel’s testimony “self-serving,”1 and concluded her failure to retain an accident reconstruction expert was not so deficient as to deprive Garding of a fair trial. Garding appealed, challenging both the district court’s summary judgment order and its order denying postconviction relief. ¶34 In State v. Garding, 2020 MT 163, 400 Mont. 296, 466 P.3d 501, this Court affirmed the district court’s summary dismissal and the denial of postconviction relief. While I dissented from the majority opinion regarding Garding’s claims of ineffective assistance of counsel and her alleged Brady violations, I agreed with the majority that the district court did not abuse its discretion in determining the accident reconstruction modeling and related expert analyses could have been obtained at the time of trial and therefore were not “newly discovered evidence.” Garding, ¶ 45 (Gustafson, J., dissenting). However, our analysis of Garding’s new evidence claim was based on an erroneous understanding of the 1 The district court’s characterization of trial counsel’s statements as “self-serving” is perplexing given that trial counsel attested to her own deficient performance, which—if anything—casts doubt on her competency and taints her professional reputation. 18 law. In Henderson v. State, 2024 MT 253, 418 Mont. 431, 558 P.3d 749, decided just a few years after Garding, this Court acknowledged its jurisprudence regarding new evidence claims as not only vague, uncertain, and confusing, but flawed in its conflation of standards across various claim types, and manifestly wrong in its interpretation and extension of § 46-21-102(2) MCA, to free standing claims of procedural innocence—that is, claims for new trial based on new evidence raising a reasonable doubt as to a petitioner’s guilt unaccompanied by any alleged trial error. See Henderson, ¶ 42. Accordingly, we overruled a series of cases which recognized freestanding claims of procedural innocence as well as those which had incorrectly conflated the standards for establishing new evidence claims. Henderson, ¶¶ 26, 28, 31, 33, 50 (overruling the following cases to the extent they are inconsistent with the holdings therein: Marble v. State, 2015 MT 242, 380 Mont. 366, 355 P.3d 742; Crosby v. State, 2006 MT 155, 332 Mont. 460, 139 P.3d 832; Beach v. State (Beach I), 2009 MT 398, 353 Mont. 411, 220 P.3d 667; Beach v. State (Beach II), 2013 MT 130, 370 Mont. 163, 302 P.3d 47; State v. Redcrow, 1999 MT 95, 294 Mont. 253, 980 P.2d 622; State v. Pope, 2003 MT 330, 318 Mont. 383, 80 P.3d 1232). Analyzing Garding’s new evidence claim under the clarified standards articulated in Henderson, Garding is substantively innocent. ¶35 The Montana Post-Conviction Hearing Act (MPCHA) was enacted in 1967 to provide an exclusive state law remedy for collateral postconviction relief of state criminal convictions. Since its enactment, the Legislature has adopted several procedural bars to relief under the MPCHA, including an applicable statute of limitations. However, in response to the more restrictive procedural bars, this Court recognized a “fundamental 19 miscarriage of justice” exception based on federal constitutional due process. Henderson, ¶ 18. The fundamental miscarriage of justice exception includes three subtypes of new evidence based claims: (1) actual substantive innocence of guilt, as assumed cognizable by the United States Supreme Court in Herrera v. Collins, 506 U.S. 390, 404-05, 113 S. Ct. 853, 862-63 (1993); (2) actual procedural innocence of guilt accompanied by an allegedly unconstitutional trial error that is otherwise barred, as recognized in Schlup, 513 U.S. at 312-32, 115 S. Ct. at 860-69; and (3) actual innocence of death penalty eligibility, pursuant to Sawyer v. Whitley, 505 U.S. 333, 335-48, 112 S. Ct. 2514, 2517-23 (1992). Henderson, ¶ 18. While each of these subtypes of claims have been analyzed by the United States Supreme Court in terms of new or previously unconsidered evidence of actual innocence, “each ha[s] subtle but fundamentally distinct elements and standards largely derived from pertinent provisions or requirements of the Due Process Clause of the U.S. Const. amend. XIV.” Henderson, ¶ 19. Therefore, though all three subtypes of claims are premised on new evidence of actual innocence, each warrants a different threshold determination. ¶36 Here, while Garding has a constitutional gateway challenge under Schlup predicated on her claims of ineffectiveness of counsel and the withholding of evidence by the prosecution, the State’s admission postconviction that it was scientifically impossible for the accident to have occurred in accordance with the State’s trial theory, along with the postconviction evidence presented by Garding, in my opinion, set forth a Herrera-based claim that alone warrants dismissal. ¶37 A Herrera-based claim is a freestanding claim of actual substantive innocence grounded in newly presented evidence that demonstrates the petitioner did not, in fact, 20 commit the offense. Henderson, ¶ 18. Thus, the new evidence is exculpatory in nature and entitles the petitioner to exoneration. Henderson, ¶ 22. ¶38 In Herrera, the United States Supreme Court recognized the execution of an innocent defendant as “constitutionally intolerable.” Herrera, 506 U.S. at 419, 113 S. Ct. at 870 (O’Connor, J., concurring). However, under the facts of the case, the majority found the petitioner’s claims unconvincing under any standard of proof and thus did not precisely define the required showing for such a claim. Herrera, 506 U.S. at 417-19, 113 S. Ct. at 869-70. Justice White, in his concurring opinion, contemplated a showing of newly discovered evidence that, in light of the record at trial, establishes “no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.” Herrera, 506 U.S at 429, 113 S. Ct. at 875 (White, J., concurring) (quoting Jackson v. Virginia, 443 U.S. 307, 314, 99 S. Ct. 2781, 2786 (1979)). Whereas Justice Blackmun discussed a showing of probable innocence, explaining that “[w]hen a defendant seeks to challenge the determination of guilt after he has been validly convicted and sentenced, it is fair to place on him the burden of proving his innocence, not just raising doubt about his guilt.” Herrera, 506 U.S. at 443, 113 S. Ct. at 883 (Blackmun, J., dissenting). Blackmun explained that the court should then be tasked with weighing the evidence in favor of the prisoner against the evidence of their guilt, noting that “[o]bviously the stronger the evidence of the prisoner’s guilt, the more persuasive the newly discovered evidence of innocence must be.” Herrera, 506 U.S. at 444, 113 S. Ct. at 883 (Blackmun, J., dissenting). ¶39 Reflective of the standard set forth in Blackmun’s dissent, this Court has recognized Herrera to require a petitioner to affirmatively and unquestionably prove their actual 21 innocence with “reliable new evidence.” Henderson, ¶ 50. Reliable new evidence is “evidence not previously considered at trial, and not redundant or cumulative in substance thereto—sufficient to satisfy [the claim at issue].” Henderson, ¶ 37. Such evidence may include, among other things, “exculpatory scientific evidence, trustworthy eyewitness account