Parkhurst v. Shillinger

• Decision Date: 23 October 1997
• Docket Number: No. 96-8046,96-8046
• Citation: 128 F.3d 1366
• Parties: 97 CJ C.A.R. 2438 Derrick R. PARKHURST, Petitioner-Appellant, v. Duane SHILLINGER, Warden of the Wyoming State Penitentiary, Wyoming Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1366

128 F.3d 1366

97 CJ C.A.R. 2438

Derrick R. PARKHURST, Petitioner-Appellant, v. Duane SHILLINGER, Warden of the Wyoming State Penitentiary Wyoming Attorney General, Respondents-Appellees.

No. 96-8046.

United States Court of Appeals Tenth Circuit.

Oct. 23, 1997.

Derrick R. Parkhurst, pro se.

William U. Hill, Wyoming Attorney General, Robin Sessions Cooley, Assistant Attorney General, Cheyenne, WY, for Respondents-Appellees.

Before BRORBY, LOGAN, and HENRY, Circuit Judges.

BRORBY, Circuit Judge.

Petitioner Derrick Parkhurst appeals the judgment of the district court refusing to hear his claim of ineffective assistance of appellate counsel brought pursuant to 28 U.S.C. § 2254. For the reasons stated below, we affirm. ¹

Petitioner was convicted of first degree murder and assault with a deadly weapon. In his direct appeal, petitioner argued that (1) the vehicle in which he was riding after the crimes were committed was stopped by police without probable cause and the evidence seized therein should have been suppressed; (2) the consent to search the vehicle was obtained illegally and the evidence should also have been suppressed on that basis; and (3) the arresting officer made an impermissible comment at trial on petitioner's right to remain silent. These claims were rejected, and petitioner's conviction was affirmed. See Parkhurst v. State, 628 P.2d 1369, 1382 (Wyo.1981).

In 1985, petitioner filed a petition under Wyoming's postconviction statutes, Wyo Stat. Ann. §§ 7-14-101 through 108, which provide a remedy for felons in custody in state penal institutions who believe they are unconstitutionally confined. Petitioner's postconviction petition claimed only that petitioner's rights had been abridged by the arresting officer's comment on his right to remain silent, one of the issues the Wyoming Supreme Court had rejected on direct appeal. The state does not dispute that this petition has never been ruled on.

In 1993, petitioner filed a state habeas corpus action, claiming that the state trial court lost jurisdiction to try him because he was insane at the time the crimes were committed. ² After the district court denied the petition because the claim was not cognizable under the Wyoming habeas system, petitioner refiled his petition in the Wyoming Supreme Court which likewise dismissed for lack of a cognizable claim.

In addition to the habeas petition filed in 1993, petitioner also filed a petition for writ of certiorari with the Wyoming Supreme Court requesting reinstatement of his direct appeal. This was the first time that petitioner raised in a state forum the issue he now seeks to have reviewed in federal court, namely, that he was denied effective assistance of appellate counsel because the issue of ineffective assistance of trial counsel was not raised on direct appeal. The Wyoming Supreme Court declined to reinstate his direct appeal. The merits of his ineffective assistance argument, therefore, have never been reviewed.

In 1994, petitioner filed a petition for writ of habeas corpus in the federal district court, raising only the ineffective assistance of appellate counsel argument. Noting that ineffective assistance of counsel claims are time-barred in Wyoming unless raised within five years after the conviction, see R. tab 23 at 2; see also Wyo. Stat. Ann. § 7-14-103(d), and finding neither cause nor prejudice from petitioner's failure to raise the issue in a timely fashion, the district court adopted the conclusion of the magistrate judge that petitioner's claim was procedurally defaulted. In addition, the district court found that petitioner had not avoided default by raising the issue for the first time to the Wyoming Supreme Court in a petition for writ of certiorari. The district court dismissed the petition, and this appeal followed. ³

Petitioner's first argument is that he has properly exhausted state court remedies by filing his petition for writ of certiorari in the Wyoming Supreme Court for restoration of his direct appeal. As mentioned above, the district court rejected this argument. In doing so, it concluded that the Wyoming certiorari procedure has only been used to remedy procedural defects by allegedly ineffective counsel as opposed to the substantive error alleged here by petitioner. See R. tab 23 at 3. Further, the district court noted that the certiorari petition was not filed until several years after the claim of ineffective assistance had been time barred. See id. at 3-4. While our reasoning differs from that of the district court, we agree that petitioner has not exhausted his state remedies by virtue of his certiorari petition.

In attacking this conclusion, petitioner argues that he has exhausted his state remedies because a petition for writ of certiorari is the favored remedy under Wyoming law to pursue his particular claim and that, since Wyoming's postconviction and certiorari procedures are both extraordinary proceedings, exhaustion of one remedy is sufficient to exhaust all. Petitioner takes exception to the district court's conclusion that the certiorari procedure is limited to the correction of procedural errors and does not include substantive errors, and argues that, if there is a question about the scope of the certiorari remedy, the state procedures are ambiguous and the question should be resolved in his favor.

It has long been clear that a § 2254 petition containing federal claims which have not been exhausted in state court must be dismissed. See Rose v. Lundy, 455 U.S. 509, 513-20, 102 S.Ct. 1198, 1200-04, 71 L.Ed.2d 379 (1982). The exhaustion requirement is satisfied, however, " 'once [a] federal claim has been fairly presented to the state courts.' " Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971)). The question here, therefore, is whether petitioner fairly presented his claim of ineffective assistance of appellate counsel by first presenting it in a petition for writ of certiorari to the Wyoming Supreme Court.

In Castille, 489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380, the Court "address[ed] again what has become a familiar inquiry: To what extent must the petitioner who seeks federal habeas exhaust state remedies before resorting to the federal court?" Id. at 349-50, 109 S.Ct. at 1059 (quotation omitted). There, petitioner had raised two of his particular claims for the first time in a petition for allocatur in the Pennsylvania Supreme Court, a procedure committed to "sound judicial discretion, [where] an appeal will be allowed only when there are special and important reasons therefor." Id. at 347, 109 S.Ct. at 1058 (quotation omitted). In concluding that such procedure was not "fair presentation" and was therefore insufficient to exhaust state remedies, the Court stated that "where the claim has been presented for the first and only time in a procedural context in which its merits will not be considered unless there are special and important reasons therefor, [r]aising the claim in such a fashion does not, for the relevant purpose, constitute fair presentation." Id. at 351, 109 S.Ct. at 1060 (quotations omitted). Because of the similarity between Wyoming's Supreme Court certiorari petition procedure and the allocution procedure involved in Castille, we conclude that petitioner's presentation of his claim to the Wyoming Supreme Court via a petition for writ of certiorari was similarly ineffective to exhaust his state remedies.

Initially we note that, like the petition for allocatur considered in Castille, a writ of certiorari in Wyoming is not a matter of right, and its grant is left to the sound discretion of the court. See In re General Adjudication Of All Rights To Use Water In Big Horn River Sys., 803 P.2d 61, 67 (Wyo.1990). Further, certiorari will not issue where an alternative remedy exists. See Call v. Town of Afton, 73 Wyo. 271, 278 P.2d 270, 275-76 (1954) (finding that "statutory provisions for review were ... plain, speedy and adequate"); see also City of Sheridan v. Cadle, 24 Wyo. 293, 157 P. 892, 893 (1916). Because review under Wyoming's certiorari petition procedure is discretionary and limited, we find that petitioner's presentation of his ineffective assistance claim for the first time via that procedure was not fair presentation.

Petitioner's argument to the contrary rests on language in Foote v. State, 751 P.2d 884 (Wyo.1988), in which the court considered the district court's dismissal of a direct appeal because the notice of appeal was untimely. The court referred to prior precedent in which it had reinstated a direct appeal pursuant to a petition for writ of certiorari, see Murry v. State, 713 P.2d 202, 205 n. 1 (Wyo.1986), and discussed the effect of the Supreme Court's decision in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), which held that a criminal defendant has a constitutional right to effective assistance of counsel in prosecuting an initial appeal. Because it was unable to determine whether the failure to file the notice of appeal was the fault of Mr. Foote or his counsel, the court remanded the case to the district court for a hearing on that issue. Anticipating a point at which that determination had been made by the district court, the Wyoming Supreme Court directed the following procedure:

if [the district court] finds that the fault was attributable to [the petitioner's] counsel, it may invoke the common law writ of certiorari pursuant to Art. 5, § 10 of the Constitution of the State of Wyoming. We have found that to be an appropriate method to entertain review of cases in which the doctrine of Evitts v. Lucey, [469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985),] has been transgressed, without violating the jurisdictional requirement of a timely filing of a notice of appeal, and without insisting that the remedy of a post-conviction proceeding...