Osborn v. Schillinger, C85-0410-B.

Decision Date07 July 1986
Docket NumberNo. C85-0410-B.,C85-0410-B.
PartiesKevin Winston OSBORN, Petitioner, v. Duane SCHILLINGER, Warden of the Wyoming State Penitentiary, and A.G. McClintock, the Attorney General of the State of Wyoming, Respondents.
CourtU.S. District Court — District of Wyoming

COPYRIGHT MATERIAL OMITTED

Craig L. Truman, Karen A. Chaney, Denver, Colo., Ronald Rogers, Cheyenne, Wyo., for petitioner.

John W. Renneisen, Sr. Asst. Atty. Gen., Thomas A. Maurer, Asst. Atty. Gen., State of Wyo., Cheyenne, Wyo., for respondents.

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

BRIMMER, Chief Judge.

This matter came before the Court pursuant to a petition for writ of habeas corpus filed by Kevin Osborn. The Court, having heard the arguments of counsel, reviewed the briefs and the transcript of the hearings conducted in this matter and being fully advised in the premises, FINDS and ORDERS as follows:

Kevin Osborn, Willard Teel, Terry Green and Ellen Hopkins were charged with a series of crimes which occurred in Sweet-water and Uinta Counties in western Wyoming on May 14 and 15, 1982. Almost from the start of their custody, a race to the courthouse occurred, but counsel for the petitioner did not participate in it. Counsel for Willard Teel arranged a plea bargain but co-defendant Teel was strangled by co-defendant Terry Green in their jail cell before Teel could enter his pleas. Ellen Hopkins plead guilty to aiding and abetting the aggravated robbery of Dale Moore in Sweetwater County and conspiracy to commit aggravated robbery and aggravated robbery of Jimmy Ray O'Briant in Uinta County. (Exhibit LL) She received a sentence of four to ten years and five to ten years with one year suspended, to be served concurrently. (Exhibit LL) Co-defendant Green plead guilty to the Sweetwater County charges of first degree murder of Audrey Ditmars by strangulation, attempted first degree murder of Dale Moore by stabbing, first degree murder of co-defendant Willard Teel by strangulation, aggravated robbery of Dale Moore, first degree sexual assault of Audrey Ditmars, and attempted second degree murder of Jimmy Ray O'Briant, a Uinta County charge. (Exhibit LL) Mr. Green received four consecutive life sentences for the two murders and two attempted murders and two consecutive sentences of 45 to 50 years for the aggravated robbery and rape charges. (Exhibit LL)

After co-defendants Green and Hopkins were sentenced, Jimmy Ray O'Briant, the victim in Uinta County, died. On August 23, 1982, Kevin Osborn was charged in Sweetwater County with aiding and abetting the first degree murder of Audrey Ditmars and the attempted first degree murder and aggravated robbery of Dale Moore. (Exhibit MM-2) Uinta County charged petitioner with conspiracy to commit aggravated robbery, aggravated robbery and the felony murder of Jimmy Ray O'Briant. (Exhibit MM-2) Petitioner waived his rights to preliminary hearings in both counties, and waived his right to venue in Uinta County on the Uinta County charges. (Exhibit MM-2).

At the arraignment held on August 23, 1982, Mr. Osborn plead guilty to all of the charges against him and requested the death penalty. On September 20, 1982, petitioner's counsel, Leonard Munker, filed a motion to rescind the death penalty request. Counsel did not file a motion to withdraw the guilty pleas, but the trial court apparently treated a letter from Mr. Osborn as a motion to withdraw the pleas and denied it on October 12, 1982. A two-day sentencing hearing took place on October 12 and 13, 1982, after which the trial court sentenced petitioner to death on the charge of first degree felony murder for the death of Jimmy Ray O'Briant. (Exhibit MM-2).

EXHAUSTION OF REMEDIES

Petitioner must exhaust his remedies in the state courts before this Court can grant his application for a writ of habeas corpus. 28 U.S.C. § 2254(b). The exhaustion of state remedies rule gives the state an initial opportunity to review and correct alleged constitutional violations. Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963).

Petitioner has exhausted his remedies in the Wyoming courts. On direct appeal from his conviction, argued by Leonard Munker, the Wyoming Supreme Court affirmed Osborn's judgment and sentences. Osborn v. State, 672 P.2d 777 (Wyo.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984). Martin McClain then filed a Rule 36 Motion for sentence reduction in the Third Judicial District Court, Sweetwater County, which was denied. A Consolidated Petition for Post-Conviction Relief and Writ of Habeas Corpus was filed by Martin McClain in the trial court. (Exhibit HH-2) Osborn requested that Martin McClain be removed as counsel and, two months later, John Ackerman entered his appearance on Osborn's behalf. (Exhibit HH-2) Ackerman filed a First Amended Consolidated Petition for Post-Conviction Relief and Writ of Habeas Corpus in December, 1984. (Exhibit HH-2) In February, 1985, Craig Truman entered his appearance on behalf of Osborn and filed a response to the State's motion to dismiss. (Exhibit HH-2) Ruling without a hearing, the trial court denied the First Amended Consolidated Petition. On September 18, 1985, Osborn filed a motion to stay execution and a motion to reconsider with the trial court. (Exhibit HH-2) The Court denied the motion for stay on September 18, 1985. (Exhibit HH-2) Petitioner filed a Notice of Appeal and Motion to Stay Execution in the Wyoming Supreme Court on September 23, 1985. (Exhibit HH-2) The Supreme Court denied the motion to stay execution, which was scheduled to occur four days later. (Exhibit HH-1)

The State argues that petitioner deliberately bypassed available state remedies. The Court finds this contention is not supported by the record. Petitioner filed a Rule 36 motion to reduce his sentence. The trial court denied the motion. District courts do not have jurisdiction to reduce a death sentence on a Rule 36 motion. Hopkinson v. State, 704 P.2d 1323 (Wyo.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 187, 88 L.Ed.2d 155 (1985).

Petitioner filed a motion for habeas corpus in the state district court, which was denied. There is no appeal from denial of a writ of habeas corpus by a district court. State ex rel. Hopkinson v. District Court, 696 P.2d 54 (Wyo.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 187, 88 L.Ed.2d 155 (1985).

The trial court denied the petitioner's motion for post-conviction relief. If an error could or should have been raised on appeal, a petition for post-conviction relief will not lie. Id. at 64. The alleged errors which were the basis of the petition for post-conviction relief are errors which were appropriate subjects of appeal. In fact, many of these issues were raised on appeal. See Osborn v. State, 672 P.2d 777 (Wyo.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984).

The State contends that petitioner should have filed an original petition for habeas corpus with the Wyoming Supreme Court. In the direct appeal of petitioner's conviction, the Wyoming Supreme Court had an opportunity to review most of the issues raised in the federal petition and rejected petitioner's arguments. Id. Petitioners are not required to file repetitious applications in the state courts to satisfy the exhaustion of state remedies requirement. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), quoting Brown v. Allen, 344 U.S. 443, 449 n. 3, 73 S.Ct. 397, 403 n. 3, 97 L.Ed. 469 (1953). The exhaustion rule does not require Mr. Osborn to resubmit his arguments made on appeal under the guise of an original petition for habeas corpus. The purpose of the exhaustion requirement has been satisfied because the Wyoming Supreme Court has had an opportunity to review the issues now presented in federal court.

The State argues that relief in the state courts was denied on procedural grounds, and that the procedural default bars federal review. In its opinion letter dated March 25, 1985, the trial court held that petitioner had not made a sufficient showing to merit a hearing, citing State ex rel. Hopkinson v. District Court, 696 P.2d 54 (Wyo.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 187, 88 L.Ed.2d 155 (1985) and Bibbins v. State, 696 P.2d 1300 (Wyo.1985). The trial court's decision to deny petitioner's request for a hearing was based on procedural grounds. The trial court went on to deny the First Amended Consolidated Petition on the merits. The court stated that it had reviewed the entire file and the petition. It cited the portion of State ex rel. Hopkinson v. District Court, supra at 64, which held that post-conviction relief will not lie where errors could or should have been raised on appeal. Where the trial court denied the First Amended Consolidated Petition on substantive grounds, review in the federal courts is proper. Brinlee v. Crisp, 608 F.2d 839, 857 n. 13 (1979) cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980).

Petitioner presented many arguments for the consideration of this Court. Because several issues raised by petitioner require that he receive an opportunity to withdraw his plea and receive a new sentencing hearing, the Court will only address petitioner's remaining arguments briefly.

In passing, this Court recognizes that Wyoming Supreme Court never has had before it a full record. It essentially dealt with a procedural situation, without a factual foundation such as developed by this Court in its six (6) day hearing, which was really the only full hearing Osborn has ever had. Because of the lack of an extensive evidentiary proceeding, the facts herein found were for the most part not known to either the state trial court or supreme court.

INVOLUNTARY PLEA

Petitioner argues that the pleas he entered were not knowing and voluntary. Petitioner plead guilty to all the charges against him and requested the death penalty. A plea must be knowing and voluntary to satisfy the requirements of due process....

To continue reading

Request your trial
18 cases
  • Davis v. Executive Director of Dep't of Corrections
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 13, 1996
    ...to "sharks feeding in the ocean in a frenzy; something that's just animal in all aspects." Id. (quoting Osborn v. Shillinger, 639 F. Supp. 610, 617 (D. Wyo. 1986), aff'd, 861 F.2d 612 (10th Cir. 1988)). We concluded that Osborn's attorney did more than "make poor strategic choices;" rather,......
  • Osborn v. Shillinger
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 7, 1988
    ...States District Court for the District of Wyoming granting Kevin Osborn's petition for writ of habeas corpus. See Osborn v. Schillinger, 639 F.Supp. 610 (D.Wyo.1986). We On August 8, 1982, Osborn pled guilty to a series of crimes including the felony murder of Jimmy Ray O'Briant, and aiding......
  • Sword v. Shillinger
    • United States
    • Wyoming Supreme Court
    • November 17, 1989
    ...of prosecutorial breach of the plea agreement presented, but also ineffectiveness of both trial and appellate counsel. Osborn v. Schillinger, 639 F.Supp. 610 (D.Wyo.1986), aff'd 861 F.2d 612 (10th Cir.1988); Osborn v. State, 672 P.2d 777 (Wyo.1983), cert. denied 465 U.S. 1051, 104 S.Ct. 133......
  • Murray v. State
    • United States
    • Wyoming Supreme Court
    • June 21, 1989
    ...P.2d 777 (Wyo.1983), cert. denied 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984) and subsequent proceedings with Osborn v. Shillinger, 639 F.Supp. 610 (D.Wyo.1986) and affirmed by Osborn v. Shillinger, 861 F.2d 612 (10th Consequently, I dissent. * Retired June 29, 1988.1 More current ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT