Fitzpatrick v. State, 81-74

• Citation: 638 P.2d 1002,38 St.Rep. 1448,194 Mont. 310
• Decision Date: 02 September 1981
• Docket Number: No. 81-74,81-74
• Parties: Bernard James FITZPATRICK, Petitioner and Respondent, v. STATE of Montana, Respondent and Appellant.
• Court: Montana Supreme Court

Page 1002

638 P.2d 1002

194 Mont. 310

Bernard James FITZPATRICK, Petitioner and Respondent, v. STATE of Montana, Respondent and Appellant.

No. 81-74 Supreme Court of Montana.

Submitted April 29, 1981.

Decided Sept. 2, 1981.

Rehearing Denied Oct. 1, 1981.

Dissenting Opinion Oct. 30, 1981.

Mike Greely, Atty. Gen., argued, Helena, Marc Racicot, Asst. Atty. Gen., Helena, John Maynard, Asst. Atty. Gen., argued, Helena, James E. Seykora, County Atty., argued Hardin, for respondent and appellant.

Robert L. Stephens, Jr., argued, Billings, Timothy K. Ford argued, Seattle, Wash., for petitioner and respondent.

HASWELL, Chief Justice:

State of Montana appeals from the Big Horn County District Court's denial of the State's motion to dismiss a petition for post-conviction relief. Petitioner cross-appeals from the District Court's denial of his request for an evidentiary hearing on his post-conviction petition.

Bernard Fitzpatrick (petitioner) was convicted of deliberate homicide, aggravated kidnapping, and robbery, and sentenced to death in 1975. This Court reversed and remanded for a new trial. State v. Fitzpatrick (1977), 174 Mont. 174, 569 P.2d 383. After a second trial, petitioner was convicted of the same offenses and again sentenced to death. This Court affirmed. State v. Fitzpatrick (1980), Mont., 606 P.2d 1343, 37 St.Rep. 194, cert. denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118. Fitzpatrick petitioned the United States Supreme Court and was denied certiorari on the above case and on Fitzpatrick v. Sentence Review Division of the Supreme Court of Montana (1980), 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 119.

On November 6, 1980, petitioner filed a post-conviction relief petition in District Court, Big Horn County. The State moved to dismiss, alleging that post-conviction relief, pursuant to section 46-21-101 et seq., MCA, is not available to a defendant who has been sentenced to death. The district judge denied the State's motion to dismiss on that ground, but did dismiss the petition on all claims of petitioner except as to his claim in "paragraph 8(c)" of the petition, which alleged ineffective assistance of counsel. The district judge granted petitioner leave to amend "8(c)" in order to set out his claim more specifically. On February 4, 1981, the District Court denied petitioner's request for an evidentiary hearing on the question of ineffective assistance, ruling that the allegations in the proposed amended petition were conjectural and speculative.

The State appeals from the District Court's ruling which in effect allows post-conviction relief to persons under sentence of death. Petitioner cross-appeals from the denial of an evidentiary hearing and the denial of relief from his conviction and sentence.

The State raises one issue on appeal:

1) To what extent may a person sentenced to death challenge his conviction and sentence under Montana's Post-conviction Relief Act when he has previously been afforded a direct appeal of his conviction under the automatic review provisions of sections 46-18-307 through 46-18-310, MCA?

Petitioner raises 14 issues in his cross-appeal, which we will address as follows:

1) Does the doctrine of res judicata bar reconsideration of constitutional claims raised by petitioner on direct appeal to this Court?

2) Did the District Court err in dismissing 7 claims on their merits (discussed below) without requiring an evidentiary hearing?

3) Did the District Court err in ruling that 6 claims (discussed below) should be dismissed as a matter of law?

The district judge ruled as a matter of law that death row prisoners are not precluded from bringing a post-conviction petition pursuant to sections 46-21-101 et seq., MCA. The State argues that the automatic review provisions of section 46-18-307 through 46-18-310, MCA, take the place of the post-conviction statutes and lend the finality to review which must exist if a defendant sentenced to death is ever to have his statutory sentence imposed. Petitioner points out that the statute, on its face, declares that post-conviction relief is available to anyone "adjudged guilty of an offense." He also argues that to hold otherwise would deny petitioner the equal protection of the laws. We find petitioner's arguments persuasive.

This precise issue was raised by Dewey Coleman in his appeal to this Court from a Rosebud County District Court's dismissal of his petition for post-conviction relief. In that appeal, decided by this Court August 28, 1981, we held that the statute is clear on its face in providing this remedy to any "person adjudged guilty of an offense." We discussed there the interest that the State has in the finality of a sentence, but we also recognized that had the legislature intended that the post-conviction statutes apply only to defendants convicted of non-capital offenses, the legislature would have expressed that intent in the statute. See Coleman v. State (1981) Mont., 633 P.2d 624.

Based on the foregoing, we conclude that the district judge in this case properly denied the State's motion to dismiss petitioner's post-conviction relief petition.

The district judge granted the State's motion to dismiss six of petitioner's claims on the ground that the claims had been previously decided on the merits and were res judicata. Petitioner admits that the issues have been adjudicated but contends that res judicata should not apply here because:

"(1) The Due Process clause of the Fourteenth Amendment requires greater reliability of judgments in capital cases; and (2) the previously adjudicated issues were decided incorrectly."

This Court has not specifically held that res judicata does not apply to post-conviction relief procedures but the Court did note in dictum in In re William McNair (1980), Mont., 615 P.2d 916, 917, 37 St.Rep. 1487, 1489, that in post-conviction procedures "as in habeas corpus, there is no statute of limitations, no res judicata, and ... the doctrine of laches is inapplicable," citing Heflin v. United States (1959), 358 U.S. 415, 420, 79 S.Ct. 451, 454, 3 L.Ed.2d 407, 411 (Stewart, J. concurring) and Conners v. United States (9th Cir. 1970), 431 F.2d 1207. But despite the fact that res judicata does not prevent the bringing of repeated petitions in federal court, the doctrine does apply insofar as it precludes inquiry into previously litigated grounds. The United States Supreme Court set out the considerations which go into determining those situations in which res judicata may preclude further litigation:

"Where a trial or appellate court has determined the federal prisoner's claim, discretion may in a proper case be exercised against the grant of a § 2255 (post-conviction relief) hearing. Section 2255 provides for hearing '(u) nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief ...' In Sanders v. United States, 373 U.S. 1 (1963), we announced standards governing the determination whether a hearing should be ordered in the case of a successive motion under § 2255. Similarly, where the trial or appellate court has had a 'say' on a federal prisoner's claim, it may be open to the § 2255 court to determine that on the basis of the motion, files, and records, 'the prisoner is entitled to no relief.' See Thornton v. United States, 125 U.S.App.D.C. 114, 125, 368 F.2d 822, 833 (1966) (dissenting opinion of Wright, J.)." Kaufman v. United States (1968), 394 U.S. 217, 227, n. 8, 89 S.Ct. 1068, 1074-1075, n.8, 22 L.Ed.2d 227, 238, n.8.

The standards as set out in Sanders provide:

"(c)ontrolling weight may be given to denial of a prior application ... for § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." Sanders v. United States (1963), 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148, 161.

In Coleman, supra, we approved the Sanders restrictions, holding that res judicata would apply in this State insofar as the doctrine limits relitigation of previously determined issues; but it cannot be invoked by the State so as to deprive a litigant of the right to file a successive petition, if the petitioner has a new basis or ground for coming before the court. See Coleman, supra. In the case at bar, the district judge concluded that the six previously-litigated issues should not be reconsidered. We will not disturb his finding absent a clear showing of abuse of discretion. Coleman, supra.

Seven claims set forth by Fitzpatrick in his post-conviction relief petition were dismissed without evidentiary hearings by the District Court. We determine that an evidentiary hearing is necessary on petitioner's claim that he was denied effective assistance of counsel both at trial and at sentencing. In his petition, Fitzpatrick alleged that his court-appointed counsel failed to adequately investigate and prepare a defense, and that he was unfamiliar with critical areas of the applicable law. He cited numerous and substantial facts to support his allegations, which were found to be speculative and conjectural by the district judge.

Petitioner is entitled to have at his trial "effective assistance of counsel acting within the range of competence demanded of attorneys in criminal cases." State v. Rose (1980), Mont., 608 P.2d 1074, 1081, 37 St.Rep. 642, 649-650. From the information presented in Fitzpatrick's petition, we cannot say, as the district judge did, that "the files and records of the case conclusively show that the petitioner is entitled to no relief..." Section 46-21-201(1), MCA. Many of the errors of which petitioner complains involve failures of counsel to act, i.e., omissions rather than commissions, and a mere review of the record cannot show that petitioner is entitled to no relief on...