Harvey v. Shillinger

• Decision Date: 01 February 1995
• Docket Number: No. 93-CV-105-D,93-CV-106-D.,93-CV-105-D
• Citation: 893 F. Supp. 1021
• Parties: Jetty Lee HARVEY, Petitioner, v. Duane SHILLINGER, Warden, Wyoming State Penitentiary, and the Attorney General of the State of Wyoming, Respondents.
• Court: U.S. District Court — District of Wyoming

893 F. Supp. 1021

Jetty Lee HARVEY, Petitioner, v. Duane SHILLINGER, Warden, Wyoming State Penitentiary, and the Attorney General of the State of Wyoming, Respondents.

Nos. 93-CV-105-D, 93-CV-106-D.

United States District Court, D. Wyoming.

February 1, 1995.

COPYRIGHT MATERIAL OMITTED

Stuart S. Healy, Sheridan, WY, for plaintiff, Jetty Lee Harvey.

Mary Beth Wolff, Asst. Atty. Gen., Wyoming Atty. General's Office, Cheyenne, WY, for respondents, Duane Shillinger, Warden, Wyoming State Penitentiary, and the Atty. Gen. of Wyoming.

ORDER GRANTING RESPONDENTS' MOTION TO DISMISS

DOWNES, District Judge.

This matter comes before the Court on Petitioner's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and Respondents' subsequent Motion to Dismiss, and the Court, having carefully considered the materials submitted in support of both the petition and motion to dismiss, having heard oral argument of the parties and being otherwise fully advised in the premises, FINDS and ORDERS as follows:

BACKGROUND

On January 9, 1986, Petitioner Harvey and two other men were charged with kidnapping and sexual assault in the first degree or aiding and abetting in those offenses. Harvey was convicted of those charges following a jury trial held in July of 1987.¹ Following his original conviction, he was sentenced to concurrent prison terms of not less than 20 years nor more than 30 years. At his sentencing hearing on October 23, 1987, Harvey made various statements in allocution under oath. He was represented by retained counsel (Virgil Kinnaird) at this hearing who encouraged Harvey to make a statement of contrition and admission of responsibility. Apparently, neither the presiding judge nor Mr. Kinnaird advised Harvey that his statement in mitigation could be used against him in subsequent criminal proceedings of a related nature.

On appeal, Harvey's first conviction was overturned on speedy trial grounds. Harvey v. State, 774 P.2d 87 (Wyo.1989) (Harvey I). The prosecuting attorney for Sweetwater County subsequently filed a complaint charging Harvey with conspiracy to commit kidnapping and conspiracy to commit sexual assault. Harvey alleges that the affidavit of probable cause supporting this second complaint was identical to the one supporting the first, except that it included one additional paragraph referring to specific statements made by Harvey at his sentencing hearing following the first trial. Harvey filed written objections and motions in limine regarding use in the second trial of the allocution statements as evidence of his guilt on grounds that such use violated his rights against self-incrimination and his rights to due process. After a hearing, the trial court denied Harvey's motions on the grounds that Harvey was not compelled to make a statement at the sentencing hearing. Rather, the trial court found that Harvey's statements in allocution were given freely and voluntarily with a knowledge and understanding of his Fifth Amendment rights. (Jury Trial Transcript, Vol. IV at 994, attached to Mem.Supp.Mot. Dismiss, Ex. C.) Following a jury trial, Harvey was convicted on the charge of conspiracy to commit kidnapping, but was acquitted on the conspiracy to commit sexual assault and received a sentence of 12 to 15 years in the state penitentiary on the kidnapping charge.

The second judgment and sentence was appealed to the Wyoming Supreme Court on four grounds: double jeopardy; speedy trial; violation of right to impartial jury; and violation of due process by use of his allocution statements. Harvey v. State, 835 P.2d 1074 (Wyo.1992) (Harvey II). Harvey claims that he did not assert ineffective assistance of counsel on appeal because at the time of his trial and during the initial stages of the second appeal, he was represented by a partner of the attorney who represented him in his first trial. On June 11, 1992, the Wyoming Supreme Court affirmed the conspiracy conviction. However, two of the justices dissented on the issue of whether the use of Petitioner's mitigating statement at the sentencing hearing following his first trial to convict him in the second trial constituted a due process violation.

Harvey has petitioned this Court for a Writ of Habeas Corpus asserting five grounds in support thereof: (1) improper use of allocution statements made at sentencing phase of first trial as evidence of guilt in second trial; (2) ineffective assistance of counsel at first sentencing hearing; (3) denial of right to speedy trial; (4) double jeopardy violation; and (5) Wyoming Supreme Court Justice Thomas' participation in the second appeal violated "fundamental fairness" principles.

DISCUSSION

In discussing the considerations underlying its habeas jurisprudence, the United States Supreme Court noted the principle that collateral review is different from direct review. Brecht v. Abrahamson, ___ U.S. ___, ___, 113 S.Ct. 1710, 1719, 123 L.Ed.2d 353 (1993). The reason most frequently advanced for distinguishing between direct and collateral review is "the State's interest in the finality of convictions that have survived direct review within the state court system.... In criminal trials, the States hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Id. at ___, 113 S.Ct. at 1720. "The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited." Id. at ___, 113 S.Ct. at 1719.

In keeping with this distinction, the writ of habeas corpus has historically been regarded as an extraordinary remedy, "a bulwark against convictions that violate `fundamental fairness.'" ... "Those few who are ultimately successful in obtaining habeas relief are persons whom society has grievously wronged and for whom belated liberation is little enough compensation." Fay v. Noia, 372 U.S. 391, 440-41, 83 S.Ct. 822, 850, 9 L.Ed.2d 837 (1963).... Accordingly, it hardly bears repeating that "`an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.'" United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982) (quoting United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239, 60 L.Ed.2d 805 (1979)).

Brecht, ___ U.S. at ___ - ___, 113 S.Ct. at 1719-20 (citations omitted) (emphasis added).

Use of allocution statements

Petitioner argues that use of his statement in allocution at the subsequent trial violated his rights against self-incrimination and due process. The Wyoming Supreme Court found that Petitioner's constitutional right against self-incrimination was not violated because the allocution statement was made voluntarily. Harvey II, 835 P.2d at 1084. Petitioner argues that the principle of "fundamental fairness" is at stake. In support of this argument, Petitioner quotes Justice Golden's dissenting opinion on the use of his statement in allocution to convict him in the second trial:

Our criminal justice system is built on the concept of fairness. We pride ourselves in having informed all participants in advance by what ground rules our system operates; the system abhors surprise and ambush. I can find no fairness in what happened to Mr. Harvey as a result of his allocution statement. I see only surprise and ambush. The sentencing court did not warn him that any thing he said in allocution would be used against him in criminal prosecution; in fact, it was only after Mr. Harvey made his statement that the sentencing judge informed him of his right to appeal the conviction on which, moments before, he had been sentenced. I am unable to find that Mr. Harvey made a knowing, intelligent and informed waiver of his right to remain silent.

Harvey II, 835 P.2d at 1135-36. Petitioner further points out that his trial attorney, Mr. Kinnaird, did not advise him that allocution statements could be used against him, or that they could not be used against him. Therefore, Petitioner contends, either the use of Petitioner's statement in allocution constituted a violation of his rights against self-incrimination and due process, or his second conviction was predicated upon ineffective assistance of counsel during the sentencing hearing. According to Petitioner, the Wyoming Supreme Court's finding that his allocution statement was a voluntary waiver of his right against self-incrimination flies in the face of such cases as Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Petitioner essentially contends that he was impermissibly forced to choose between his right to remain silent and his right to speak on his own behalf for mitigation of punishment.²

The Simmons Court addressed the dilemma faced by defendants in prosecutions for possessory crimes when the testimony required for standing to assert a Fourth Amendment claim itself proves an element of the offense. "It seems obvious that a defendant who knows that his testimony may be admissible against him at trial will sometimes be deterred from presenting the testimonial proof of standing necessary to assert a Fourth Amendment claim." Id. at 392, 88 S.Ct. at 975. The Court stated that the rule adopted by the lower courts imposed upon a defendant a condition which may deter him from asserting a Fourth Amendment objection. "For a defendant who wishes to establish standing must do so at the risk that the words which he utters may later be used to incriminate him." Id. at 393, 88 S.Ct. at 976. The Court went on to discuss the holding of other courts which have allowed the admission of such testimony because the testimony was voluntary; hence, no violation of the Fifth Amendment's Self-Incrimination Clause. Those courts reason that...