861 F.2d 612 (10th Cir. 1988), 86-2175, Osborn v. Shillinger

Docket Nº:86-2175.
Citation:861 F.2d 612
Party Name:Kevin Winston OSBORN, Petitioner-Appellee, v. Duane SHILLINGER, Warden of the Wyoming State Penitentiary; A.G. McClintock, the Attorney General of the State of Wyoming, Respondents-Appellants.
Case Date:November 07, 1988
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 612

861 F.2d 612 (10th Cir. 1988)

Kevin Winston OSBORN, Petitioner-Appellee,


Duane SHILLINGER, Warden of the Wyoming State Penitentiary;

A.G. McClintock, the Attorney General of the State

of Wyoming, Respondents-Appellants.

No. 86-2175.

United States Court of Appeals, Tenth Circuit

November 7, 1988

Page 613

John W. Renneisen, Sr. Asst. Atty. Gen. (A.G. McClintock, Atty. Gen., Allen C. Johnson, Deputy Atty. Gen., with him on the brief), State of Wyo., Cheyenne, Wyo., for respondents-appellants.

Craig L. Truman of Truman and Associates, Denver, Colo. (Karen A. Chaney of Lozow, Lozow and Elliott, Denver, Colo.; and Ronald Rogers of Cheyenne, Wyo., with him on the brief), for petitioner-appellee.

Before MCKAY and SEYMOUR, Circuit Judges, and SAFFELS, [*] District Judge.

SEYMOUR, Circuit Judge.

Respondents Schillinger and McClintock [the State] appeal an order from the United States District Court for the District of Wyoming granting Kevin Osborn's petition for writ of habeas corpus. See Osborn v. Schillinger, 639 F.Supp. 610 (D.Wyo.1986). We affirm.

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On August 8, 1982, Osborn pled guilty to a series of crimes including the felony murder of Jimmy Ray O'Briant, and aiding and abetting the first degree murder of Audry Ditmars. He was sentenced to death on the O'Briant felony murder count. Only the plea and death penalty on that charge are at issue here. 1

The plea colloquy was facially in conformity with Rule 11 of the Federal Rules of Criminal Procedure. At its conclusion, however, Osborn's counsel at that time, Wyoming Public Defender Leonard Munker, announced that his client would like to have a press conference and that he, as Osborn's attorney, had no objection. At this press conference, Osborn encouraged the American Civil Liberties Union (ACLU) to represent him, asserting that he had felt compelled to plead guilty and to ask for the death penalty.

The ACLU never became counsel of record, but it did file a motion to withdraw Osborn's plea on the ground that he had been under the influence of drugs. Munker apparently refused to file the motion himself but did not object to the ACLU's assistance. The state district court denied the motion to withdraw the plea, but granted Osborn's motion to rescind his death penalty request.

Subsequently, the state court conducted a sentencing hearing under Wyoming's capital sentencing law. Sitting without a jury, the court heard evidence of aggravation and mitigation. Finding two aggravating circumstances 2 and no mitigating evidence, the court sentenced Osborn to death. Execution was automatically stayed pending review by the Wyoming Supreme Court.

Osborn was represented on appeal by Munker, who had handled his guilty plea and sentencing. Munker raised four issues: (1) the voluntariness of Osborn's guilty plea; (2) the proportionality of the death sentence as compared to similar offenders; (3) his own ineffectiveness as counsel; and (4) the constitutionality of Wyoming's death penalty statutes. The Wyoming Supreme Court affirmed the death sentence, Osborn v. State, 672 P.2d 777 (Wyo.1983), and Osborn's petition for certiorari to the United States Supreme Court was denied, Osborn v. Wyoming, 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984).

Osborn petitioned for post-conviction relief and a writ of habeas corpus in the Wyoming district court in which he had been sentenced. 3 Attorney conflict problems hindered Osborn's pursuit of this relief. Public Defender Munker had raised his own incompetency in Osborn's direct appeal rather than withdrawing. At the post-conviction stage, however, Munker resigned because the ineffectiveness claim was central to that proceeding. He proposed that Martin J. McClain, an attorney

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who worked on a contract basis with the Wyoming Public Defender's Office, represent Osborn. Thereafter, Munker became McClain's direct supervisor when he appointed McClain as the appellate defender for the Public Defender's office. Nonetheless, McClain continued to represent Osborn after accepting this position, and filed a petition for post-conviction relief. The State moved to dismiss the petition.

Because of the apparent conflict of interest, Osborn requested that McClain be removed as his attorney. In the scramble to find representation, Osborn was temporarily represented by John Ackerman, who took over his case in September 1984 with the understanding that he would be replaced in three months. Two and a half months later, Ackerman filed an amended petition for post-conviction relief and a writ of habeas corpus to which the State filed a renewed motion to dismiss. On February 19, 1985, Osborn's fifth counsel, Craig L. Truman, entered his appearance and responded to the motion to dismiss. In an opinion letter on March 25, the state district court denied Osborn's petition. The court entered an order to that effect on May 13, 1985.

Osborn did not appeal the state court's denial of his consolidated petition. On September 12, 1985, he filed a motion for stay of execution with the state district court, and on September 18, he filed a motion in that court for reconsideration of the dismissal of his consolidated petition. The docket sheet reflects only that, on September 18, 1985, the state district court entered an order denying Osborn's motion to stay, but it is apparent from the record that both parties believed the court also had denied the motion to reconsider. On September 19, Osborn filed a motion to stay with the Wyoming Supreme Court and a notice of appeal of the district court's September 18 rulings. On September 23, the Wyoming Supreme Court denied Osborn's request for stay but did not rule on the appeal.

Osborn filed his petition for federal habeas corpus relief the next day. The federal district court granted a stay and conducted evidentiary hearings, which were completed on October 11, 1985. On January 10, 1986, the State filed a motion with the Wyoming Supreme Court to dismiss Osborn's appeal from the state district court's denial of his motion to reconsider its dismissal of his consolidated petition. The supreme court granted the motion the same day, apparently construing Osborn's appeal from the denial of his motion to reconsider as an untimely appeal from the May 13 denial of his consolidated petition. 4

The federal district court granted Osborn's petition for habeas corpus relief on July 7, 1986. The court found that Osborn's guilty plea was not voluntary because his counsel had told him he could withdraw the plea if he decided to withdraw his request for the death penalty. In addition, the court held that Munker's representation of Osborn during his guilty plea proceedings and at his sentencing trial constituted ineffective assistance of counsel, and that the trial court's exposure to ex parte information about the leadership relationship between Osborn and his co-defendants constituted a violation of Osborn's due process rights. Because the effective assistance of counsel issue is dispositive,

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we need not reach the merits of the other issues.



Before we can address the merits of Osborn's habeas corpus petition, we must determine whether the federal district court acted within its discretion in reaching the merits. The State argues that Osborn did not exhaust his state remedies and/or that his claims were resolved in the state courts on adequate and independent state procedural grounds. The district court held that Osborn had exhausted state remedies and that no state procedural rule bars federal consideration. We agree with these conclusions, although our reasoning is somewhat different from that employed by the district judge.

  1. Exhaustion of State Remedies

    The law is well settled that as a matter of comity, federal courts should not consider a claim on habeas corpus until after the state courts have had an opportunity to act. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam); Duckworth v. Serrano, 454 U.S. 1, 3-4, 102 S.Ct. 18, 19-20, 70 L.Ed.2d 1 (1981) (per curiam); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Jones v. Hess, 681 F.2d 688, 693-94 (10th Cir.1982). To fulfill the exhaustion requirement, a petitioner must present his claim to a state appellate court. White v. Meachum, 838 F.2d 1137, 1138 (10th Cir.1988). If Osborn presented the substance of his claims to the Wyoming Supreme Court on direct appeal, the availability of a post-conviction petition or further original petition in the supreme court would be irrelevant. Smith v. Atkins, 678 F.2d 883, 884-85 (10th Cir.1982). When Osborn filed his federal petition, however, the Wyoming Supreme Court still had not decided his appeal from the denial of his motion for reconsideration of the ruling on the consolidated petition, which raised at least one claim for the first time. Osborn had therefore not completely exhausted his state remedies when the district court addressed the merits of his petition. White, 838 F.2d at 1138.

    While the instant appeal was pending, the Wyoming Supreme Court dismissed Osborn's last appeal. "[A]n appellate court may give relief if state remedies are exhausted by the time it acts, even if those remedies were not exhausted when the habeas corpus petition was filed." Schwartzmiller v. Gardner, 752 F.2d 1341, 1344 (9th Cir.1984) (citing Sharpe v. Buchanan, 317 U.S. 238, 63 S.Ct. 245, 87 L.Ed. 238 (1942) (per curiam)). Osborn's claims are unquestionably exhausted now.

  2. Procedural Bar

    The State argues that the federal district court should not have addressed the merits of Osborn's petition because he violated several state procedural rules. The federal district court construed the order...

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