Murray v. State
Decision Date | 21 June 1989 |
Docket Number | No. 87-177,87-177 |
Citation | 776 P.2d 206,1989 WL 67582 |
Parties | Peter Kole MURRAY, Appellant (Petitioner), v. The STATE of Wyoming, Appellee (Respondent). |
Court | Wyoming Supreme Court |
Martin J. McClain, Deputy State Public Defender, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and David K. Gruver, Asst. Atty. Gen. (argued), for appellee.
Before CARDINE, C.J., and THOMAS, URBIGKIT and MACY, JJ., and BROWN, J. Ret. *
Appellant, Peter Kole Murray, seeks review of the district court's order dismissing his petition for post-conviction relief. We affirm.
On January 18, 1983, a jury found Murray guilty of the crime of attempted sexual assault felony murder. Murray appealed that conviction, and we affirmed in Murray v. State, 671 P.2d 320 (Wyo.1983). The facts of the case are set out in that opinion. On August 19, 1986, Murray filed, pro se, a petition for post-conviction relief which raised three issues:
In addition to raising these issues, Murray asked that counsel be appointed to represent him and that he be permitted to amend his petition and raise additional issues after consultation with counsel.
An attorney was appointed to represent Murray and an amended petition for post-conviction relief was filed on December 2, 1986. The amended petition incorporated by reference the pro se petition and raised five issues:
i. Refusal of Murray's Motion for Change of Venue denied him his right to a fair and impartial jury.
ii. The evidence presented to the jury was insufficient to sustain the jury's finding of guilt beyond a reasonable doubt.
iii. Wyoming's felony murder statute operates in such a manner as to allow a conclusive presumption on the issues of malice and premeditation and thus violates the rule of law enunciated in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) iv. The trial court's refusal of an involuntary intoxication instruction denied Murray his constitutional right to a fair trial.
v. Murray was denied the effective assistance of counsel both at the trial stage and in the prosecution of his appeal to the Wyoming Supreme Court.
On June 16, 1987, the district court entered its order denying relief. On June 26, 1987, Murray filed a timely notice of appeal, and in his brief in this court he raised eight issues:
Post-conviction relief, governed by W.S. 7-14-101 et seq., performs the same limited function as did the writ of coram nobis. It is not a substitute for direct appeal and is limited to review of specific types of error. 18 Am.Jur.2d Coram Nobis § 45, at 673 (1985). Post-conviction relief is an extraordinary authorization to seek relief under circumstances which suggest a "miscarriage of justice." Cutbirth v. State, 751 P.2d 1257, 1261 (Wyo.1988). The substance of a fair trial must be missing in order to justify its application. Id.; State ex rel. Hopkinson v. District Court, Teton County, 696 P.2d 54, 64 (Wyo.1985); Johnson v. State, 592 P.2d 285 (Wyo.1979).
Because the relief intended to be provided by the post-conviction procedure is extraordinary, we have imposed some rather strict limitations on the issues which may be raised in the procedure. Issues which have been or could have been raised on appeal are not open to challenge by a petition for post-conviction relief because they are foreclosed by the doctrine of res judicata. Cutbirth, 751 P.2d at 1261; Hopkinson, 696 P.2d at 64. Moreover, W.S. 7-14-103 provides that any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.
We proceed to apply these rules to the issues raised by appellant in this court. Issues enumerated 2, 3, 5, 7 and 8 were not raised in the trial court and were thus waived. W.S. 7-14-103. We will not consider these issues on appeal. Issue enumerated 2 is really a variation of an issue raised in his original appeal which asserted that the trial court erroneously denied his motion for change of venue. Murray v. State, 671 P.2d at 325-27. We explored the issue in detail in that opinion, including the variation raised as issue 2 in this appeal. Although appellant's failure to raise the issue in the district court is dispositive, we note this additional reason why issue 2 must be rejected.
Appellant asserts ineffective assistance of trial counsel in the first half of issue enumerated 1. The issue of effective assistance of counsel at the trial level and issues enumerated 4 and 6 are issues which could have been raised in appellant's original appeal to this court, and we will, therefore not consider them in the context of a post-conviction procedure. Cutbirth, 751 P.2d at 1261-62.
As in Cutbirth, we are finally left with the issue of ineffective assistance of appellate counsel. Cutbirth was decided after this case had been processed through the trial court. The trial court, therefore, did not have the benefit of the test we formulated for determining claims of ineffective assistance of appellate counsel, that test being:
(Citations omitted.) Cutbirth, 751 P.2d at 1266-67.
We have held that ineffective assistance of appellate counsel is not subject to the waiver doctrine. We therefore must consider on review appellant's claim of ineffective assistance of counsel and resolve that issue. Three matters were presented to the trial court that could be the basis for the assertion of ineffective assistance of appellate counsel. They are:
1. Should a competent appellate counsel have raised as an issue on appeal the assertion that Wyoming's felony murder statute operates in such a manner as to allow a conclusive presumption as to the issues of malice and premeditation?
2. Should a competent appellate counsel have raised as an issue on appeal the refusal of the trial court to give an involuntary intoxication instruction?
3. Should a competent appellate counsel have raised as an issue on appeal an assertion that Murray was denied the effective assistance of trial counsel?
When these three questions are tested against our holding in Cutbirth, it is clear that no viable issue of ineffective assistance of appellate counsel could be sustained by the record in this case.
With regard to Wyoming's felony murder statute, appellant can point to no clear and unequivocal rule of law which would have prompted an appellate counsel to raise that issue. Rather it is clear that such a rule would plow wholly new ground. No jurisdiction has held that a felony murder statute violates the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61...
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