Hamill v. Ferguson, 95-CV-093-J.

• Decision Date: 01 August 1996
• Docket Number: No. 95-CV-093-J.,95-CV-093-J.
• Citation: 937 F. Supp. 1517
• Parties: Anthony R. HAMILL, Petitioner, v. James FERGUSON, Warden of the Wyoming State Penitentiary, and the Attorney General of the State of Wyoming, Respondents.
• Court: U.S. District Court — District of Wyoming

937 F. Supp. 1517

Anthony R. HAMILL, Petitioner, v. James FERGUSON, Warden of the Wyoming State Penitentiary, and the Attorney General of the State of Wyoming, Respondents.

No. 95-CV-093-J.

United States District Court, D. Wyoming.

August 1, 1996.

COPYRIGHT MATERIAL OMITTED

Anthony R. Hamill, pro se.

William U. Hill, Attorney General of the State of Wyoming, and Lori L. Gorseth, Assistant Attorney General, for respondents.

MEMORANDUM AND ORDER SUSTAINING IN PART AND OVERRULING IN PART PETITIONER'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; DISMISSING PETITION WITH PREJUDICE

ALAN B. JOHNSON, Chief Judge.

Before the court are petitioner Anthony R. Hamill's objections to the Magistrate Judge's report and recommendation that his habeas corpus petition be dismissed with prejudice because his claims are procedurally defaulted. Having considered all of the relevant facts and law and the materials submitted by the parties, and having reviewed de novo the report and recommendation, the court rejects the Magistrate Judge's conclusion Mr. Hamill's claims are procedurally defaulted, but concludes the petition should be DISMISSED WITH PREJUDICE, because the claims asserted therein lack merit.

I

On February 2, 1979, Mr. Hamill was convicted of three counts of first degree sexual assault in the Wyoming District Court, Sixth Judicial District, Campbell County, and sentenced to not less that 20 years but not more than 45 years in the Wyoming State Penitentiary. His sentence was commuted to a term of not less than 17 years but not more than 45 years on December 19, 1988. On July 9, 1992, Mr. Hamill was granted parole, to commence November 1, 1992. He was paroled to California pursuant to Wyoming's interstate compact for supervision of parolees and probationers. Wyo.Stat. § 7-13-413.

On June 29 and 30, 1994, Mr. Hamill's wife, Patricia Hamill, and Brooke Collins, Mrs. Hamill's daughter, told authorities that Mrs. Hamill had found an audio tape of Mr. Hamill making obscene phone calls to an unknown female, in which he discussed her underwear at some little length. The obscene phone calls occurred in late May or early June 1994, while Mr. Hamill was in Long Beach, California. Brooke Collins also stated Mr. Hamill had made a video tape of himself, naked and masturbating, and showed it to his aunt and grandmother in January 1994, again while he was in Long Beach. Mrs. Hamill, who is a paraplegic, also stated she had an argument with Mr. Hamill on or about June 28, 1994, and that he had grabbed her by the shoulders and shaken her.

On June 30, 1994, California authorities took Mr. Hamill into custody for investigation of charges of indecent exposure, making obscene phone calls, and battery without serious injury. No criminal charges were filed in California, but a parole violation report was filed on July 7, 1994. A preliminary hearing was held in the Los Angeles County Jail on August 11, 1994. The hearing officer found good cause for each of the three charges and stated "due to the nature of the current violation charges it appears that Mr. Hamill is in need of therapy." Because Mr. Hamill was convicted in Wyoming, the hearing officer deferred the decision whether to revoke parole to the Wyoming authorities.

On September 2, 1994, the Liaison to the Wyoming Board of Parole recommended that Mr. Hamill's parole be revoked. Based on this recommendation the Wyoming Board of Parole issued an arrest warrant on the same day. On September 30, 1994, a California Municipal Court held an extradition hearing and, on October 5, 1994, turned Mr. Hamill over to Wyoming authorities. In a letter dated October 5, 1994, the Wyoming Board of Parole directed Mr. Hamill to appear at a parole revocation hearing at the Wyoming State Penitentiary on October 11, 1994. According to Mr. Hamill, he did not receive this letter until October 10, 1994. Mr. Hamill was given the opportunity to continue the hearing to the following month, but he declined to do so. Mr. Hamill also admits he waived his right to have an attorney assist him at the hearing. After the hearing, the Parole Board found he had committed the acts with which he was charged in California, namely, indecent exposure, making an obscene phone call, and battery without serious injury, revoked his parole, and denied him "street credit" for the time he spent on parole in California.

On December 28, 1994, Mr. Hamill filed a petition for a writ of habeas corpus in the Wyoming District Court, Second Judicial District, Carbon County, the pursuant to Wyo.Stat. §§ 1-27-101 through 134, alleging: (1) he was placed in custody in California without a warrant from June 30, 1994, to September 2, 1994; (2) there was an unreasonable delay between his arrest and his preliminary hearing in California; (3) he was not allowed to confront witnesses at the preliminary hearing in California; (4) he had less than 24 hours notice of his parole revocation hearing in Wyoming; (5) his parole revocation hearing in Wyoming was held 104 days after he was taken into custody in California; (6) he was denied an impartial fact finder at the parole revocation hearing in Wyoming; and (7) the Wyoming Board of Parole's findings of fact and conclusions of law did not state the evidence the Parole Board relied on in revoking parole. The respondents moved to dismiss the petition. The Wyoming District Court granted the respondents' motion and dismissed the petition, because under Wyoming law, habeas corpus is available only to challenge the jurisdiction of the forum which ordered the petitioner to be confined, and the Parole Board had jurisdiction under Wyo.Stat. § 7-13-403. Mr. Hamill then filed a petition for a writ of habeas corpus in the Wyoming Supreme Court, asserting the same grounds for relief. The Wyoming Supreme Court denied the petition "for the reason that the petition does not challenge the jurisdiction of the court which imposed a lawful sentence, nor does it challenge the jurisdiction of the Parole Board to revoke grants of parole." The Wyoming Supreme Court also observed that "Mr. Hamill misapprehends the remedy available under Wyoming's habeas corpus statutes and he has filed a petition which is framed in a style appropriate for federal habeas corpus."

On May 9, 1995, Mr. Hamill filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting the same claims he raised in his petition for a writ of habeas corpus filed in the Wyoming District Court and the Wyoming Supreme Court, with the exception of claim (1). The court referred the matter to a Magistrate Judge pursuant to 28 U.S.C. § 636(b) and U.S.D.C.L.R. 501 and 502. The respondents subsequently moved to dismiss the petition on the ground Mr. Hamill's claims were procedurally defaulted or, in the alternative, that they lacked merit. On January 8, 1996, after receiving and considering Mr. Hamill's traverse, the Magistrate Judge issued a report and recommendation stating the petition should be dismissed with prejudice because Mr. Hamill's claims were procedurally defaulted. The Magistrate Judge concluded that Mr. Hamill had failed to exhaust the remedies available to him under state law by giving the Wyoming Supreme Court an opportunity to rule on the merits of his claims, because he had raised them in a proceeding in which they were not cognizable. The Magistrate Judge further concluded that Mr. Hamill could have presented his claims to the Wyoming Supreme Court by filing a petition for a writ of review in accordance with W.R.A.P. 13, but that he could no longer do so because the relevant time limit had expired. Because there were no longer any remedies available to Mr. Hamill under state law as a result of his failure to comply with Wyoming's procedural requirements, the Magistrate Judge did not recommend that the petition be dismissed without prejudice to allow Mr. Hamill to attempt to exhaust his claims in state court. Finally, the Magistrate Judge concluded Mr. Hamill had failed to show cause and prejudice for his procedural default or that a miscarriage of justice would result absent consideration of his claims on the merits in federal court. The court has received Mr. Hamill's timely objections to the report and recommendation and the matter is now ripe for decision.

II

A federal court will ordinarily dismiss a petition for a writ of habeas corpus under 28 U.S.C. § 2254 if the petitioner has not "fairly presented" the claims raised therein to the highest state court empowered to consider them and given that court an adequate opportunity to rule on the merits. 28 U.S.C. § 2254(b)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1218 (1996); Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989); Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 1202, 71 L.Ed.2d 379 (1982) ("state remedies must be exhausted except in unusual circumstances"); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971) ("once a federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied"); Lepiscopo v. Tansy, 38 F.3d 1128, 1129-30 (10th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1376, 131 L.Ed.2d 230 (1995); Harris v. Champion, 15 F.3d 1538, 1554-57 (10th Cir.1994). The purpose of this exhaustion requirement is to "protect the state courts' role in the enforcement of federal law." Rose, 455 U.S. at 518, 102 S.Ct. at 1203. "The law of procedural defaults ... applies to preclude federal habeas review of claims that have not been adjudicated on the merits by a state court because of noncompliance with a state procedural rule." Brecheen v. Reynolds, 41 F.3d 1343, 1354 (10th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 2564, 132 L.Ed.2d 817 (1995). In deciding whether a claim has or has not been adjudicated on the merits, we examine the decision of the last state...