Whiteley v. State of Wyoming

• Decision Date: 25 November 1968
• Docket Number: Civ. No. 5185.
• Parties: Harold WHITELEY, No. 9789, an inmate of the Wyoming State Penitentiary, Rawlins, Wyoming, Petitioner, v. STATE OF WYOMING, Respondent.
• Court: U.S. District Court — District of Wyoming

293 F. Supp. 381

Harold WHITELEY, No. 9789, an inmate of the Wyoming State Penitentiary, Rawlins, Wyoming, Petitioner, v. STATE OF WYOMING, Respondent.

Civ. No. 5185.

United States District Court D. Wyoming.

November 25, 1968.

Maxwell E. Osborn, Cheyenne, Wyo., and William J. Knudsen, Jr., Laramie, Wyo., for plaintiff.

Jack Speight, Asst. Atty. Gen., State of Wyoming, Cheyenne, Wyo., for defendant.

JUDGE'S MEMORANDUM

KERR, District Judge.

This is a habeas corpus proceeding brought by petitioner, Harold Whiteley, in which he asserts that he is unlawfully held in custody in the Wyoming State Penitentiary, located in the City of Rawlins, County of Carbon, State of Wyoming.

The parties stipulated the record to be filed with this court, namely, the original record of the trial court and the record on appeal to the Wyoming Supreme Court.

At the hearing on September 6, 1968, in this court, petitioner was represented by his attorneys and the respondent was represented by the Office of the Attorney General of the State of Wyoming. The Court heard oral arguments of both counsel and studied their briefs and authorities.

Petitioner was tried in the District Court, Second Judicial District, Carbon County, Wyoming, for the crime of breaking and entering a locked building. The jury returned a verdict of guilty and answered in the affirmative the three interrogatories concerning the three prior felonies. Petitioner was sentenced to the Wyoming State Penitentiary for a term of not less than one nor more than ten years and committed for the remainder of his natural life for being a person judicially determined of being an habitual criminal. The trial Court ordered said terms of sentences to run concurrently. At the arraignment, trial and sentencing, petitioner was duly represented by court appointed counsel.

On appeal to the Wyoming Supreme Court, each and every argument presented by petitioner's counsel was considered and in a unanimous opinion the Supreme Court, duly constituted, found no reversible error and affirmed the judgment of the trial court. Whiteley v. State of Wyoming, Wyo.1966, 418 P.2d 164. The Supreme Court found that there was no error in amending the information in a matter of substance without obtaining leave of court, and that the defendant, Harold Whiteley, had been arraigned on the amended information and no error existed as to that aspect of the case. The Supreme Court held, also, that there was no abuse of discretion by the trial judge in allowing a witness to testify contrary to the court's prior order excluding witnesses, and that there was no showing of any constructive fraud having been perpetrated upon the trial court by the actions of the county attorney. The Supreme Court found that the arrest of petitioner was reasonable and proper, and stated that the search of his automobile was justified.

On January 4, 1967, petitioner filed an application for post-conviction relief pursuant to Wyoming law, in the District Court, Second Judicial District, Rawlins, Wyoming. Section 7-408.1 through 7-408.8, W.S.1957 as amended. In that application petitioner raised three new issues and repeated the claim pertaining to the alleged unlawful search and seizure and subsequent admission into evidence of the items obtained through the search and seizure. The three new grounds for relief in the post-conviction proceedings were: (1) that petitioner was denied his right to a fair and impartial trial by jury and the right not to be twice put in jeopardy for the same offense insofar as the jury had knowledge of his prior criminal record which was alleged in the information and in turn read to the jury; (2) that petitioner was denied his constitutional right of effective assistance of counsel because of certain alleged failures on the part of petitioner's appointed trial counsel; and (3) that petitioner was twice placed in jeopardy and denied due process and equal protection of the law wherein he was sentenced to two concurrent sentences for the commission of a single crime.

After hearing petitioner's application for post-conviction relief, receiving evidence, and considering the oral arguments and briefs of petitioner's counsel and opposing counsel, the District Court found against the petitioner on all points raised in his application for post-conviction relief. Petitioner took no appeal to the Wyoming Supreme Court from the trial court's order denying post-conviction relief.

Petitioner did not exhaust his state court remedies with respect to the three new claims raised in the post-conviction proceedings; they have not been considered or determined by the Wyoming Supreme Court. Direct appeal is expressly provided by the Wyoming Post-Conviction Relief statute. Sec. 7-408.7 W.S.1957. Petitioner cannot be heard to say, therefore, that an appeal from the post-conviction order would be repetitious or futile. Petitioner is no stranger to the right of review by the Supreme Court nor to the procedure for perfecting an appeal. Habeas corpus proceedings in the United States District Court are improper substitutes for state appellate procedure available to state prisoners.

On November 21, 1967, petitioner filed his petition for a writ of habeas corpus with this court. The motion to dismiss filed by the State of Wyoming was heard and denied. Thereafter, in petitioner's amended petition he alleged the following grounds on which he claimed the right to relief: (1) that he was denied his right to counsel and due process of law under the federal constitution when the court imposed the sentence upon petitioner under the Habitual Criminal Act without obtaining evidence that his right to representation by counsel was adequately protected in the proceedings resulting in the prior felony convictions on which the habitual criminal penalty was based. This issue is raised for the first time and has not been presented to any state court for consideration. (2) That petitioner was denied his federal constitutional guarantees in that he was twice placed in jeopardy for the same offense and was denied due process and equal protection of law when he was given one penalty for the crime of breaking and entering and an additional penalty for being an habitual criminal. This issue was decided against petitioner in the post-conviction proceeding. (3) That petitioner's arrest was illegal for want of a valid complaint and valid arrest warrant; that the search of his automobile was not made incident to a lawful arrest and that the subsequent seizure of evidence was invalid; and that the introduction of the illegally seized contraband obtained in the unlawful search and seizure at his trial was prejudicial and in violation of the federal constitution. This issue has been decided by both the trial court in the post-conviction proceedings and by the Wyoming Supreme Court.

The stipulated record shows beyond cavil that the petitioner has not exhausted his state remedies as to the first ground on which he bases his claim for relief, and that his petition for writ of habeas corpus is in effect an appeal from the State District Court's order in the post-conviction proceeding as to the second ground, and an appeal from the Wyoming Supreme Court as to the third ground on which he claims relief. The petition for writ of habeas corpus, is, therefore, without merit.

The record shows that the Supreme Court of the State of Wyoming, in a unanimous opinion, clearly and conclusively passed upon each and every matter raised by petitioner in his appeal to that court. The judgment of a state court is ordinarily res judicata, not only of those issues which were raised and determined, but also of those issues which might have been raised.

The writ of habeas corpus may not be used as an appeal or writ of error to review proceedings in the state court. Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3; Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Alexander v. Daugherty, D.C., 189 F.Supp. 956, aff'd 10 Cir., 286 F.2d 645, cert. den. 366 U.S. 939, 81 S.Ct. 1666, 6 L.Ed.2d 849. The Wyoming State Supreme Court is competent to consider and determine the matters before it and I am reluctant to invade the sovereign jurisdiction of that court.

Petitioner improperly asserts a new claim in this court to the effect that his constitutional rights were abridged by the trial court for the reason that it did not obtain evidence that petitioner was represented by counsel in the proceedings which resulted in the prior felony convictions on which the habitual criminal charge was based. Failure to raise any claim of substantial denial of constitutional rights in the trial, on appeal, or in the post-conviction proceedings constitutes a waiver of such claim. Section 7-408.3 W.S.1957 as amended; Alexander v. Daugherty, supra. There is no evidence that petitioner's failure to raise the new issue in any of the prior proceedings was due to ignorance, duress or any other reason for which petitioner could not be held responsible.

Lest petitioner ultimately complain that there was such a gross violation of his constitutional rights as to deny him the substance of a fair trial and thus oust the court of jurisdiction to impose sentence, I shall briefly comment on the...