Harlow v. State

• Citation: 2005 WY 12,105 P.3d 1049
• Decision Date: 04 February 2005
• Docket Number: No. 04-101.,04-101.
• Parties: James Martin HARLOW, aka Thorvaldr Sigwolf, Petitioner, v. The STATE of Wyoming, Respondent.
• Court: United States State Supreme Court of Wyoming

105 P.3d 1049

2005 WY 12

James Martin HARLOW, aka Thorvaldr Sigwolf, Petitioner, v. The STATE of Wyoming, Respondent.

No. 04-101.

Supreme Court of Wyoming.

February 4, 2005.

Representing Petitioner: Ken Koski, Public Defender; and Marion Yoder, Senior Assistant Public Defender.

Representing Respondent: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Terry L. Armitage, Senior Assistant Attorney General.

Before GOLDEN and VOIGT, JJ., and SULLINS, BURKE¹ and YOUNG, D.JJ.

VOIGT, Justice.

[¶ 1] This is an appeal from the district court's denial of James Martin Harlow's petition for post-conviction relief from a capital murder conviction, which denial came in the form of summary judgment granted to the State of Wyoming.² We affirm.

FACTS

[¶ 2] The underlying facts of this case were set forth in detail in this Court's opinion affirming Harlow's conviction and sentence in his direct appeal, and will not herein be repeated at length. Harlow v. State, 2003 WY 47, ¶¶ 8-14, 70 P.3d 179, 185-87 (Wyo.), cert. denied, 540 U.S. 970, 124 S.Ct. 438, 157 L.Ed.2d 317 (2003). Suffice it to say that on June 26, 1997, three Wyoming State Penitentiary inmates — Bryan Collins, Richard Dowdell, and Harlow — killed Corporal Wayne Martinez during an escape attempt. The three men were tried and convicted separately. Collins and Dowdell received life sentences; only Harlow was sentenced to death.³ Id. Additional facts will be noted as they pertain to the issues discussed below.

POST-CONVICTION RELIEF STATUTES

[¶ 3] Pertinent portions of the Wyoming statutes provide as follows:

Definition of "this act"; commencement and conduct of proceedings.

...

(b) Any person serving a felony sentence in a state penal institution who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the constitution of the United States or of the state of Wyoming, or both, may institute proceedings under this act.

Wyo. Stat. Ann. § 7-14-101 (Lexis Nexis 2003).

Claims barred; applicability of act.

(a) A claim under this act is procedurally barred and no court has jurisdiction to decide the claim if the claim:

(i) Could have been raised but was not raised in a direct appeal from the proceeding which resulted in the petitioner's conviction;

(ii) Was not raised in the original or an amendment to the original petition under this act; or (iii) Was decided on its merits or on procedural grounds in any previous proceeding which has become final.

(b) Notwithstanding paragraph (a)(i) of this section, a court may hear a petition if:

(i) The petitioner sets forth facts supported by affidavits or other credible evidence which was not known or reasonably available to him at the time of a direct appeal; or

(ii) The court makes a finding that the petitioner was denied constitutionally effective assistance of counsel on his direct appeal. This finding may be reviewed by the supreme court together with any further action of the district court taken on the petition.

Wyo. Stat. Ann. § 7-14-103 (Lexis Nexis 2003).

PROCEDURAL BACKGROUND

[¶ 4] Harlow's jury trial occurred during the month of October 1998, and he was sentenced on November 5, 1998. Final judgment was entered on December 7, 1998. Harlow, 2003 WY 47, ¶ 14, 70 P.3d at 186. Harlow's appeal was docketed in the district court on February 23, 1999. Id. at 212. This Court's opinion affirming Harlow's conviction and sentence was published on April 14, 2003. Id., 2003 WY 47, 70 P.3d 179. Harlow filed a petition for post-conviction relief in the district court on December 2, 2003. The parties' motions for summary judgment were heard on March 22, 2004, after which the district court issued its decision letter and order granting summary judgment to the State.⁴ On May 11, 2004, Harlow filed in this Court a petition for writ of certiorari or review, which petition was granted on May 25, 2004.

ISSUES

[¶ 5] Harlow presents the following issues:

1. Did the district court err in summarily denying and dismissing each of the following claims of federal constitutional error:

A. Were Harlow's Fifth and Fourteenth Amendment rights to a fair trial violated when he was tried in an atmosphere marked by hypersecurity, including but not limited to the heavy physical restraint of Harlow and of two of his witnesses?

B. Were Harlow's Fifth and Fourteenth Amendment rights to a fair trial violated when highly prejudicial and largely irrelevant testimony regarding uncharged misconduct, and his uncounseled statements about that conduct, were improperly admitted?

C. Were Harlow's Fifth, Sixth, and Fourteenth Amendment rights to a fair trial violated when the prosecutor made overreaching and factually incorrect argument urging the jury to, among other things, impose a death sentence in order to protect themselves and future employees of the Department of Corrections, and trial counsel did not object to such improper argument, nor was it broached on appeal?

D. Were Harlow's Fifth, Eighth and Fourteenth Amendment rights to due process and equal treatment before the law violated when the jury was inadequately instructed and also was required to follow a verdict form that was inadequate under the United States Constitution?

E. Were Harlow's Fifth, Sixth, Eighth, and Fourteenth Amendment rights violated when the State did not adduce sufficient evidence to sustain each of his convictions and two of the aggravating circumstances upon which his capital conviction sentence is based?

F. Were Harlow's Sixth and Fourteenth Amendment rights violated when he was rendered ineffective assistance of counsel, and such was not broached on appeal?

G. Were Harlow's Sixth and Fourteenth Amendment rights violated when he was rendered ineffective assistance of appellate counsel?

H. Were Harlow's Fifth, Sixth, and Fourteenth Amendment rights to trial by a fair and impartial jury violated when he was tried by an unqualified jury?

I. Were Harlow's Fifth and Sixth Amendment rights violated when he was not afforded access to counsel and thus gave uncounseled statements about the events of June 26, 1997, and about prior crimes, which statements were admitted against him at trial?

J. Were Harlow's Fifth and Fourteenth Amendment rights to a fair trial, equal protection and due process violated when victim impact testimony was admitted, despite the fact that no state law permits its introduction at capital sentencing proceedings?

K. Were Harlow's Fifth and Fourteenth Amendment rights violated when the constitutional errors that occurred during his capital trial were deemed harmless despite the fact that the State failed to carry its burden of disproving the harm caused by each error?

L. Were Harlow's Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment and to be accorded equal treatment before the law violated when he was sentenced to death even though his role in the victim's death was minor in comparison to the deeds of his far more culpable co-defendants, both of whom received life sentences?

M. Were Harlow's Fifth and Fourteenth Amendment rights to due process violated when he was tried and sentenced to death under Wyo. Stat. Ann. § 6-2-101, et seq. (Michie 1997), which statutes are vague on their face and as applied?

N. Was Harlow's Eighth Amendment right to be free from cruel and unusual punishment violated by the cumulative constitutional errors that occurred at trial?

O. Were Harlow's Fifth, Sixth, and Fourteenth Amendment rights to the due process guarantee of fundamental fairness violated by the cumulative constitutional errors that occurred at trial?

P. Were Harlow's Fifth and Fourteenth Amendment rights to due process and equal protection violated by the untimely disposition of his appeal?

2. Were Harlow's Eighth and Fourteenth Amendment rights and his state-created liberty interests, protected by Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), violated when the district court held that capital sentencing phase errors are not cognizable in post-conviction relief, regardless of merit?

STANDARD OF REVIEW

[¶ 6] Our standard for review of summary judgments has been stated many times and need not be reiterated here. See, for example, NuHome Investments, LLC v. Weller, 2003 WY 171, ¶ 7, 81 P.3d 940, 944 (Wyo.2003)

and Ahrenholtz v. Laramie Economic Development Corp., 2003 WY 149, ¶ 16, 79 P.3d 511, 515,

amended on reh'g, 2003 WY 149A, 82 P.3d 714 (Wyo.2003). In its decision letter, the district court did an excellent job of capsulizing our jurisprudence in regard to post-conviction relief:

The Wyoming Supreme Court has held:

"The right to claims for relief by petition for post-conviction relief does not afford the right to treat such proceedings as an appeal from the original trial; original trial proceedings will not be reviewed by post-conviction proceedings unless and until it is shown that such is necessary to review some claim having to do with denial of petitioner's constitutional rights. Albert v. State, Wyo.1970, 466 P.2d 826, 828, reh. den., 468 P.2d 968. It is virtually universally recognized that post-conviction relief is not a substitute for an appeal and the petition will not lie where the matters alleged as error could or should have been raised in an appeal or in some other alternative manner. 24 C.J.S. Criminal Law § 1606(9), pp. 696-705; see, West's Digest System, Criminal Law, Key Number 998(2). Relief may be granted only in extraordinary circumstances which strongly suggest a miscarriage of justice."

Munoz v. Maschner, 590 P.2d 1352, 1354-55 (Wyo.1979).... There is no constitutional requirement that a state provide any post-conviction relief action; thus, any allowed remedy is strictly limited to the statutory parameters set out by statute or case law. And, only substantial violations of constitutional rights amounting to a miscarriage of...