Hopkinson v. Shillinger

• Decision Date: 04 August 1986
• Docket Number: Civ. A. No. C85-0483.
• Citation: 645 F. Supp. 374
• Parties: Mark A. HOPKINSON, Petitioner, v. Duane SHILLINGER and the Attorney General of the State of Wyoming, Respondent.
• Court: U.S. District Court — District of Wyoming

645 F. Supp. 374

Mark A. HOPKINSON, Petitioner, v. Duane SHILLINGER and the Attorney General of the State of Wyoming, Respondent.

Civ. A. No. C85-0483.

United States District Court, D. Wyoming.

August 4, 1986.

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Leonard D. Munker, Cheyenne, Wyo., for petitioner.

A.G. McClintock, Wyoming Atty. Gen., Allen C. Johnson, Sr. Asst. Atty. Gen., Richard Stacy, U.S. Atty., Cheyenne, Wyo., for respondent.

MEMORANDUM AND ORDER

SAFFELS, District Judge, Sitting by Designation.

Petitioner has before this court a petition for writ of habeas corpus. Petitioner was found guilty of four counts of first degree murder and two counts of conspiracy and judgment was entered on September 27, 1979. He was sentenced on the murder counts, upon recommendation of the jury, to life imprisonment for the three murders of the Vehar family and sentenced to death for the murder of Jeff Green. The Wyoming Supreme Court in Hopkinson v. State (Hopkinson I), 632 P.2d 79 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982), affirmed the convictions but set aside the death sentence, remanding to the trial court for a new sentencing trial. After a second penalty hearing, the sentence of death was reimposed on May 27, 1982. The Wyoming Supreme Court affirmed in Hopkinson v. State (Hopkinson II), 664 P.2d 43 (Wyo. 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). Subsequently, petitioner filed a motion for new trial, which denial was upheld in Hopkinson v. State (Hopkinson III), 679 P.2d 1008 (Wyo. 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 228, 83 L.Ed.2d 157 (1984). In State, ex rel. Hopkinson v. District Court (Hopkinson IV), 696 P.2d 54 (Wyo.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 187, 88 L.Ed.2d 155 (1985), the Wyoming Supreme Court affirmed the trial court's dismissal of plaintiff's consolidated petition for postconviction relief and writ of habeas corpus. Thereafter in Hopkinson v. State (Hopkinson V), 704 P.2d 1323 (Wyo.1985), the Wyoming Supreme Court affirmed the district court's denial of sentence reduction along with its denial of other challenges pertaining to petitioner's sentence. A petition for writ of habeas corpus was thereafter filed and denied in Hopkinson v. State (Hopkinson VI), 708 P.2d 46 (Wyo.1985). Finally, in Hopkinson v. State (Hopkinson VII), 709 P.2d 406 (Wyo.1985), the Wyoming Supreme Court affirmed the district court's denial of petitioner's request for grand jury proceedings.

The general factual background surrounding this case has been set forth in Hopkinson I and Hopkinson II and need not be restated here. The court will specifically consider the record and relevant factual concerns herein as they may relate to the particular issue at hand.

As a preliminary matter, petitioner has certain motions outstanding. Petitioner's motion for discovery will be discussed infra. His motion to expand the record has to a certain extent been ruled on, as the court has allowed numerous exhibits and affidavits to become part of the record. The motion for evidentiary hearing shall be denied as the court has determined the record provides a sufficient basis for decision. As to petitioner's motion pursuant to 28 U.S.C. § 2254, Rule 6, the court finds that no good cause exists for the granting of this motion.

The court would note that the state courts have dealt exhaustively with the issues raised by petitioner herein. The court is well aware of the standards surrounding 28 U.S.C. § 2254(d) concerning the presumption of correctness regarding state court determinations, particularly in light of the recent United States Supreme Court case of Miller v. Fenton, ___ U.S. ___, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Throughout the discussion of the legal issues involved herein, the court independently reviewed the record and reached its own conclusions on the majority of the issues, although pursuant to § 2254(d), the state court findings can be afforded a presumption of correctness.

A. EX POST FACTO

Petitioner in issue No. I of his petition argues that the Wyoming court lacked jurisdiction to try him on charges of aiding and abetting when the accessorial acts did not occur in Wyoming. Petitioner asserts that the decision of the Wyoming Supreme Court in Hopkinson I, 632 P.2d 79, relating to this issue, effectively changed the law of the state and should not have been given retroactive application. Petitioner therefore asserts that the ex post facto clause of the United States Constitution, Article I, § 10 was violated in this instance.

This argument concerns petitioner's prosecution for the murder of Jeff Green which occurred in Wyoming while petitioner was incarcerated in California. Petitioner was charged as an accessory before the fact for this murder. Of particular concern to petitioner is the Wyoming Supreme Court's ruling in Hopkinson I, 632 P.2d 79, which found the language of an earlier case, Goldsmith v. Cheney, 468 P.2d 813 (Wyo. 1970) to be overly broad. In that case, Goldsmith was arrested in Wyoming upon a fugitive warrant issued from Nevada for a murder which occurred there. The murder charge was eventually dropped and upon Goldsmith's return to Wyoming, he was charged as an accessory before the fact to murder. The relevant statute, Wyoming Statute § 6-14 (1957) provided:

Accessory before the fact.—Every person who shall aid or abet in the commission of any felony, or who shall counsel, encourage, hire, command, or otherwise procure such felony to be committed, shall be deemed an accessory before the fact, and may be indicted, informed against, tried and convicted in the same manner as if he were a principal, and either before or after the principal offender is convicted or indicted or informed against; and upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.

Goldsmith argued that the language "any felony" referred only to felonies committed in Wyoming. The Wyoming Supreme Court concluded that:

By decisions of this Nation's courts in cases dealing with felonies in which the preparations occurred in one state and the actual felony in another, it has been held, consistent with the common law rule, that absent a statute which provides otherwise an accessory before the fact may be tried where the accessorial act took place and only there....

Goldsmith, 468 P.2d at 816.

In Hopkinson I, 639 P.2d 79, the Wyoming Supreme Court evaluating the language of Wyoming Statute § 6-1-114 (1977), which remained unchanged from Wyoming Statute § 6-14 (1957), found that the statutory language "tried and convicted in the same manner as if he were a principal" grants Wyoming jurisdiction if the felony occurred in Wyoming regardless of where the accessorial acts took place. Finding the language of Goldsmith v. Cheney to be unduly broad, the Wyoming Supreme Court read the rule of Goldsmith to mean that Wyoming has jurisdiction over an accessory before the fact if any accessorial acts occur in Wyoming. The court held that Wyoming has jurisdiction to try an accessory before the fact if the underlying crime occurred within the boundaries of the state.

In the instant case, petitioner argues that in Hopkinson I, the Wyoming Supreme Court changed the interpretation of the statute defining an accessory before the fact and applied this change in an ex post facto fashion. Petitioner does not claim error in the Wyoming Supreme Court's jurisdictional conclusion, but argues only that said ruling was improperly given retroactive effect.

The United States Supreme Court first discussed the ex post facto prohibition in Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). In that case, the court declared ex post facto laws to include:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Id., 3 U.S. at 390. The ex post facto clause "was intended to secure substantial personal rights against arbitrary and oppressive legislation ... and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance." Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925) (citations omitted). A procedural change that may work to a defendant's disadvantage is not ex post facto. Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977), reh'g denied, 434 U.S. 882, 98 S.Ct. 246, 54 L.Ed.2d 166 (1977). Whether an alteration of procedure will be found to be ex post facto is a matter of degree. Beazell, 269 U.S. 167, 46 S.Ct. 68.

The ex post facto clause is "directed against legislative action only, and does not reach erroneous or inconsistent decisions by the courts." Frank v. Mangum, 237 U.S. 309, 344, 35 S.Ct. 582, 594, 59 L.Ed. 969 (1915). However, the principle upon which the ex post facto clause is based, that persons have a right to fair warning of that conduct which gives rise to criminal penalties, is fundamental and is protected against judicial action by the due process clause of the fifth amendment. Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). A court may not unforeseeably enlarge the application of a criminal statute. Id. See also Bowie v. City...