Palmer v. Dermitt

• Citation: 635 P.2d 955,102 Idaho 591
• Decision Date: 15 October 1981
• Docket Number: No. 13503,13503
• Parties: Francis C. PALMER, Petitioner-Appellant, v. Ed DERMITT, Warden, and State of Idaho, Respondents.
• Court: United States State Supreme Court of Idaho

Page 955

635 P.2d 955

102 Idaho 591

Francis C. PALMER, Petitioner-Appellant, v. Ed DERMITT, Warden, and State of Idaho, Respondents.

No. 13503.

Supreme Court of Idaho.

Oct. 15, 1981.

Alan E. Trimming, Boise, for petitioner-appellant.

David H. Leroy, Atty. Gen., Robert R. Gates, Deputy Atty. Gen., Boise, for respondents.

McFADDEN, Justice.

Defendant, Francis Palmer, was convicted of first degree burglary on July 19, 1976, and sentenced to a term of imprisonment not to exceed fourteen years. This court affirmed his conviction in State v. Palmer, 98 Idaho 845, 574 P.2d 533 (1978), (hereinafter Palmer I), holding that the prosecutor's use of the defendant's prior felony conviction for impeaching what the defendant testified he was doing at the scene of the crime went to the credibility of the defendant's testimony, and therefore was a permissible use of the defendant's felony record.

Palmer then filed a pro se petition under the Uniform Post-Conviction Procedure Act. I.C. § 19-4901 et seq. The petitioner thereafter filed an amendment to the petition for post-conviction relief. The petition and amendment raised the following issues: (1) the propriety of the prosecutor's use of the defendant's prior felony conviction to impeach his testimony; (2) the constitutionality of the felony impeachment rule as embodied in I.R.C.P. 43(b)(6); (3) whether the testimony of one of the two investigating police officers was perjured; (4) whether the other investigating police officer manufactured evidence in an attempt to incriminate the defendant; (5) whether evidence allegedly in the defendant's favor was knowingly suppressed by the prosecutor or not presented to the court at trial; and (6) the effectiveness of his counsel at trial and on appeal in allegedly failing to raise these issues. Thereafter, the district court appointed counsel pursuant to Palmer's request. The court-appointed counsel, apparently without consulting Palmer, then filed an amended petition for post-conviction relief. ¹ The amended petition omitted all of the issues raised in the pro se petition and amendment thereto with the exception of the issues concerning the felony-impeachment rule. Pursuant to the State's motion, the district court dismissed the petition on the ground that the issue of prosecutorial use of a defendant's prior felony record for impeachment purposes had been addressed in Palmer I. On appeal, this court affirmed the dismissal of the petition for postconviction relief. Palmer v. State, 101 Idaho 379, 613 P.2d 936 (1980) (hereinafter Palmer II ).

During the pendency of the appeal in Palmer II, Palmer filed a pro se petition for issuance of a writ of habeas corpus. The petition reasserted those issues originally presented in the defendant's pro se petition and amendment thereto for postconviction relief, with one exception. The exception being the issue of whether evidence allegedly in the defendant's favor was knowingly suppressed by the prosecutor or not presented to the court at trial. Instead, the petition for issuance of a writ of habeas corpus raises the new issue of whether the evidence was sufficient to support his conviction. ² Additionally, the defendant alleged that the court-appointed attorney in the post-conviction relief proceeding acted without authority in amending his pro se petition in that action, and that during those proceedings he had been fraudulently transferred to the custody of Nevada authorities and fraudulently returned to the custody of Idaho authorities under the Interstate Agreement on Detainers (I.C. § 19-5001 et seq.) The district court dismissed the petition for the issuance of a writ of habeas corpus, presumably on the ground that it need not entertain successive petitions to vacate, set aside, or correct a sentence.

Palmer brings the instant appeal, contending that under the particular facts of this case the doctrine of waiver does not bar him from asserting grounds for relief in his petition for issuance of a writ of habeas corpus which were not raised in the prior postconviction relief proceeding. We agree.

At the outset it is observed that in the case of Dionne v. State, 93 Idaho 235, 237, 459 P.2d 1017 (1969), this court held that "(i)t is immaterial whether a petition or application is labeled Habeas Corpus or Post Conviction proceeding. Substance not form governs." In the instant case the petition for issuance of a writ of habeas corpus in effect claims substantial denial of those rights of the defendant protected by the federal constitution and the Idaho constitution, grounds covered by the Uniform Post Conviction Procedure Act. ³ I.C. § 19-4901(a)(1). Accordingly, for purposes of this appeal, the petition for a writ of habeas corpus shall be treated in effect as if it were denominated a request for postconviction relief.

I.C. § 19-4908 provides that

"All grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application."

The intent of this language is clear: all allegations relating to a request for postconviction relief should be asserted in one petition. However, the language of I.C. § 19-4908 does not prohibit successive petitions for postconviction relief in every case, but rather, only prohibits successive petitions in those cases where the petitioner "knowingly, voluntarily and intelligently" waived the grounds for which he now seeks relief, or offers no "sufficient reason" for the omission of those grounds in his "original, supplemental or amended petition." Thus, it is necessary that the trial court find the failure to include newly asserted grounds for relief in the prior postconviction relief proceeding was without sufficient reason before the application may be summarily dismissed on the ground of waiver. Other jurisdictions have also arrived at the same interpretation with respect to similar statutory provisions relating to successive petitions for postconviction relief and the doctrine of waiver. See, e. g., People v. Hubbard, 184 Colo. 243, 519 P.2d 945 (1974); Rogers v. Warden, Nevada State Prison, 86 Nev. 359, 468 P.2d 993 (1970), cert. denied, 400 U.S. 846, 91 S.Ct. 92, 27 L.Ed.2d 83.

Consonant with the foregoing are the American Bar Association Standards Relating to Post-Conviction Remedies, which provide with respect to waiver in standard 6.1 that:

"(a) Unless otherwise required in the interest of justice, any grounds for post-conviction relief as set forth in section 2.1 which have been fully and finally litigated in the proceedings leading to the judgment of conviction should not be re-litigated in post-conviction proceedings.

(i) It is essential that accurate and complete records of proceedings leading to such judgments be compiled and retained in accessible form.

(ii) A question has been fully and finally litigated when the highest court of the state to which a defendant can appeal as of right has ruled on the merits of the question.

Finality is an affirmative defense to be pleaded and proved by the state.

(b) Claims advanced in post-conviction applications should be decided on their merits, even though they might have been, but were not, fully and finally litigated in the proceedings leading to judgments of conviction.

(c) Where an applicant raises in a post-conviction proceeding a factual or legal contention which he knew of and which he deliberately and inexcusably

(i) failed to raise in the proceeding leading to judgment of conviction, or

(ii) having raised the contention in the trial court, failed to pursue the matter on appeal,

a court should deny relief on the ground of an abuse of process. If an application otherwise indicates a claim worthy of further consideration, the application should not be dismissed for abuse of process unless the state has raised the issue in its answer and the applicant has had an opportunity, with the assistance of counsel, to reply.

(d) Because of the special importance of rights subject to vindication in post-conviction proceedings, courts should be reluctant to deny relief to meritorious claims on procedural grounds. In most instances of unmeritorious claims, the litigation will be simplified and expedited if the court reaches the underlying merits despite possible procedural flaws."

The commentary to standard 6.1 sets forth a particularly well reasoned analysis of the doctrine of waiver, an analysis which we find persuasive.

"A most difficult concept to control in any context is that of waiver; this is no less true in post-conviction remedies. The term is subject to multiple meanings or shades of meanings which can result in confusion in communication and, perhaps, in thought. One usage employs waiver as expressive of a rule of finality of judgments: issues that were not presented at a specified time or in a specified way are said to have been waived. This appears in some post-conviction statutes. (Citations omitted.) A wholly different waiver is implied in the familiar principle that a party to a criminal action can intelligently and understandingly forego certain rights, and that his choice will be binding upon him. This suggests an active, knowing choice, in advance of the occasion when the waived right might have been useful, affirmatively expressed in the appropriate forum. The polarities of these two types of 'waiver' are clearly dissimilar, but different combinations of facts can produce blends that are not clearly the waiver-foreclosure-by-judgment or the waiver-voluntary-relinquishment.

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