Amin v. State

• Citation: 774 P.2d 597
• Decision Date: 19 May 1989
• Docket Number: No. 87-289,87-289
• Parties: Abdula AMIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 597

774 P.2d 597

Abdula AMIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 87-289.

Supreme Court of Wyoming.

May 19, 1989.

Leonard D. Munker, State Public Defender and Carol Serelson, appellate counsel, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Karen A. Byrne, and Gerald P. Luckhaupt, Asst. Attys. Gen., for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and BROWN, J., Retired.

BROWN, Justice, Retired.

Abdula Amin appeals the denial of his petition for post-conviction relief. That petition raises the following issues:

I

Appellant was denied effective assistance, due process, and equal protection by counsel's failure to argue marital privilege as means to defeat joinder of his trial with that of his spouse.

II

Counsel's failure to effectively cross-examine Valerie Amin deprived petitioner of his constitutional right to confront witnesses and effective assistance of counsel.

III

Counsel's failure to object to improper impeachment of Valerie Amin was prejudicial to appellant denying him among other rights, due process of law and effective assistance of counsel.

IV

Appellant was denied effective assistance of counsel when evidence supporting appellant's defense was not put before the jury.

V

Appellant's counsel was ineffective. Counsel was ineffective when they advised appellant to not testify so that he could preserve his appeal to the habitual criminal case.

VI

Appellant was denied due process of law by the failure of mitigating evidence to be provided to the jury in the habitual criminal case.

VII

The trial court erred in denying appellant's petition for post-conviction relief.

Amin did not raise ineffective assistance of appellate counsel as an issue in his petition.

We affirm.

The facts of this case are set out in Amin v. State, 695 P.2d 1021, 1023 (Wyo.1985), which affirmed Amin's conviction of aiding and abetting aggravated robbery. On January 3, 1987, Amin filed his original petition for post-conviction relief under W.S. 7-14-101 through 7-14-108 (1977). The state filed a motion to dismiss on March 2, 1987, and Amin responded to that motion by filing his own motion to amend his petition under W.S. 7-14-104 (1977). The district court responded to these motions by appointing counsel for Amin and withholding a ruling on the state's motion to dismiss until appointed counsel could respond to the state's motion. Amin's amended petition for post-conviction relief was filed on May 29, 1987. The state filed a motion to dismiss on June 29, 1987. The district court held a hearing on Amin's amended petition and the motion to dismiss on August 20, 1987. At the conclusion of that hearing the district court asked for further briefing on the issue of marital privilege. Only the state filed a supplemental brief on that issue. After considering the supplemental brief and reviewing the record, the district court denied Amin's amended petition on October 27, 1987. This appeal followed.

This court addressed the scope of questions that can be raised in a petition for post-conviction relief in Cutbirth v. State, 751 P.2d 1257, 1261 (Wyo.1988), where we stated:

This court has taken a disciplined approach to post-conviction relief, pointing out that it is not a substitute for the right of review upon appeal from a conviction, nor is it to be treated as an appeal. Pote v. State, Wyo., 733 P.2d 1018 (1987); Hoggatt v. State, Wyo., 606 P.2d 718 (1980); Johnson v. State, Wyo., 592 P.2d 285, cert. denied 442 U.S. 932, 99 S.Ct. 2864, 61 L.Ed.2d 300 (1979); Munoz v. Maschner, Wyo., 590 P.2d 1352 (1979). Questions which may be raised by motion for post-conviction relief are limited to those of constitutional magnitude which manifest a miscarriage of justice. Wright v. State, Wyo., 718 P.2d 35 (1986); Hoggatt v. State, supra. Those issues which could have been presented on appeal are not open to challenge by a motion for post-conviction relief because they are foreclosed by the doctrine of res judicata. Wright v. State, supra; Hoggatt v. State, supra; Munoz v. Maschner, supra.

We went on in Cutbirth to explain that this is a rule of procedural waiver, which parallels procedural waiver for post-conviction relief in the federal courts. Cutbirth, 751 P.2d at 1261-62, and cases cited therein.

The issues Amin raises in his amended petition are carefully phrased in terms of constitutional infirmities, based on a theme of ineffective assistance of trial counsel. The district court carefully reviewed each of them in its August 20, 1987, hearing, and then denied the amended petition because the issues it raises are procedurally barred under Wyoming law. See Harris v. Reed, 489 U.S. 255, ----, 109 S.Ct. 1038, 1043-44, 103 L.Ed.2d 308, 316-19 (1989); and Campbell v. State, 772 P.2d 543 (Wyo.1989). We agree with that determination.

Affirmed.

URBIGKIT, Justice, dissenting.

This is one of three appeals ¹ involving the contention of ineffectiveness of trial counsel where the decision by this court is impeded by a procedural disenfranchisement to avoid consideration of the facts as well as any substantive determination of whether the charge of ineffectiveness of appointed counsel for the defendant was justified. In basic concept, the method selected by the majority ignores supervisory responsibility for the criminal justice delivery system which should assure adequate representation by competent counsel as mandated by Wyo. Const. art. 1, § 10 and the Sixth and Fourteenth Amendments of the United States Constitution. Constitutional validity and substantive adjudication is sacrificed on the altar denominated by waiver and procedural default by act of defending counsel. The inquiry is forfeiture or foreclosure of constitutional rights originating from action, inaction, or ignorance of trial or appellate defense counsel. ²

The paradigm was composed by Professor Strazzella in Ineffective Assistance of Counsel Claims: New Uses, New Problems, 19 Ariz.L.Rev. 443, 474-75 (1977) with admirable perceptiveness:

The debate over which rights of a defendant can be lost by counsel's inactivity or decision, as distinguished from a considered personal decision of the defendant, is one of the most confused and difficult issues in criminal procedure. The area has been made more obscure because courts have often erroneously referred to some forfeiture situations as "waiver" situations, thereby inviting reference to the waiver standards requiring the defendant's personal, knowing, and intelligent decision to waive a right. A forfeiture properly refers to a forfeiture of remedies and is a facet of the procedural law of judgments; it is a principle concerned with the finality of judgments. Many remedies may be forfeited without anyone's conscious decision. Some may be forfeited without the active participation of the defendant. It is a difficult task to sort out those situations in which counsel, acting, or failing to act, without the defendant's personal and understanding participation, may be taken to have forfeited a remedy for the defendant. Once this sorting is accomplished, however, and once it is acknowledged that counsel must act competently in order for the forfeiture to be effective, counsel's incompetence may be an important target for the defendant's attack. The use of ineffectiveness claims to neutralize possible forfeitures is likely to become an increased phenomenon in light of recent developments in forfeiture law as it relates to collateral attack. There is a growing potential that more defendants may be required to prove ineffectiveness as an essential link leading to relief on an underlying claim not timely or properly litigated earlier. [Footnotes omitted.]

Intrinsic to my opposition to this supposed expediting adjudication is a philosophically bedrocked determinate that substantive, not procedural, disposition of litigation is always to be preferred if not also required. A more obvious inquisition is, if fearful of substantive considerations, what do the courts--the judges--the justice delivery system have to hide by denial of factual consideration when substituting procedural subterfuge. We exchange adjudicatory dilettantism for substantive appellate review.

If the word printers of the Wyoming Supreme Court were denied usage of the words and phrases of waiver, forfeiture and procedural default when called to test the action, inaction or negligence of defense counsel, this court would seemingly have its processing of many criminal law appeals grind to an inoperable halt. Substantive resolution of decretory issues for conviction validity, specifically including adequacy of performance of public agency defense counsel, appears as an undefinable void like the black hole of outer space for appeal resolution. The assumption in that avoidance normally apprehends a perplexity that lacks real substance to exist. Perhaps in no quantum has this court dug such an unnecessary and operational disindigenous chasm as in applying procedural default in post-conviction-relief cases to test counsel's performance in trial and appeal. We do not defend the quality of Wyoming lawyers, we play word games to avoid answering by examination what quality of assistance was actually provided.

Almost no other jurisdiction has chosen this character of preclusion for avoidance of constitutional responsibility for the justice delivery system administration. The travesty in concept is failure to perceive the result now actually demanded of all appellate counsel in any criminal case. Moral responsibility and ethical acknowledgement require that a defense of ineffectiveness of trial counsel should be raised by appellate counsel in each initial appeal since otherwise the appellate attorney is left as the only sinner available to flog. Rather than leave possible post-conviction processes for the evaluation of the character of performance, first appellate counsel, in essence,...