Campbell v. State , 1989 Wyo. LEXIS 101 ( 1989 )

GOLDEN, Justice.

Petitioner Larry Campbell appeals the district court’s denial of his amended petition for post-conviction relief. In that amended petition he raises the following issues:

1. Petitioner was denied his Sixth Amendment right to have compulsory process for obtaining witness (sic) in his favor, Debbie (Flagg) Tayon, Lori Kohl, Teresa McConnell, and Danny LaFluer, which denied him a right to present his defense and denied Petitioner a fair trial.

2. Defense counsel’s decision not to call witnesses, Debbie (Flagg) Tayon, Lori Kohl, Teresa McConnell, and Danny LaF-luer, requested by Petitioner constituted ineffective assistance of counsel in violation of U.S. Constitutional Amendments VI and XIV and Wyoming’s Constitution, Article I, Sub. Sec. 10.

We affirm.

The facts of this case are set forth in Campbell v. State, 728 P.2d 628 (Wyo.1986), which affirmed Campbell’s conviction on one count of first degree sexual assault. In that direct appeal Campbell raised the following issue:

Whether defense counsel’s failure to call witnesses in appellant’s behalf denied appellant of effective assistance of counsel.

Id. After reviewing that issue in light of the record and applicable case law this court held unanimously that Campbell had not shown a denial of effective assistance of counsel. Id. at 630.

After his direct appeal was affirmed, Campbell petitioned the district court for post-conviction relief under W.S. 7-14-101 through 7-14-108 (June 1987 Repl.),¹ and for permission to proceed in forma pauper-is. In conformity with this court’s opinions in Alberts v. State, 745 P.2d 898, 901 (Wyo.1987); and Long v. State, 745 P.2d 547, 552 (Wyo.1987), the district court granted the motion to proceed in forma pauperis and appointed counsel from the Public Defender’s office to advise Campbell in his post-conviction efforts on February 5, 1988. Campbell filed a motion to amend his original petition on March 7, 1988, and that motion was granted on March 28, 1988. On April 5, 1988, after receiving assistance from appointed counsel, Campbell filed his amended petition for post-conviction relief raising the two issues set out above and an affidavit in support of that amended petition. Three days later, the state filed a motion to dismiss the amended petition in response. One additional affidavit in support of Campbell’s amended petition was filed on April 13, 1988. A hearing on the amended petition was held in the district court on April 15, 1988; Campbell was represented by appointed counsel at that hearing. On April 26, 1988, the district court entered an order granting the state’s motion to dismiss Campbell’s amended petition, thereby denying Campbell post-conviction relief. This appeal followed. Campbell was represented in this appeal by yet another attorney from the Public Defender’s office and he filed a pro se brief on appeal and a pro se reply brief as well.

In Cutbirth v. State, 751 P.2d 1257, 1261 (Wyo.1988), this court established a rule of procedural waiver in post-conviction appeals similar to the rule for procedural waiver in force in the federal courts. In Cutbirth, this court specifically stated:

This court has taken a disciplined approach to post-conviction relief, pointing out that it is not a substitute for the right of review upon appeal from a conviction, nor is it to be treated as an appeal. Pote v. State, Wyo., 733 P.2d 1018 (1987); Hoggatt v. State, Wyo., 606 P.2d 718 (1980); Johnson v. State, Wyo., 592 P.2d 285, cert. denied, 442 U.S. 932, 99 S.Ct. 2864, 61 L.Ed.2d 300 (1979); Munoz v. Maschner, Wyo., 590 P.2d 1352 (1979). Questions which may be raised by motion for post-conviction relief are limited to those of constitutional magnitude which manifest a miscarriage of justice. Wright v. State, Wyo., 718 P.2d 35 (1986); Hoggatt v. State, supra. Those issues which could have been presented on appeal are not open to challenge by a motion for post-conviction relief because they are foreclosed by the doctrine of res judicata. Wright v. State, supra; Hoggatt v. State, supra; Munoz v. Maschner, supra.

The issues Campbell raised in his amended petition were presented to the district court with the aid of appointed counsel; that appointed counsel was not the same attorney that assisted Campbell in either his trial or in his direct appeal. Campbell was allowed to amend his original petition for post-conviction relief and to further support it with affidavits. After the state filed its motion to dismiss, the district court held a hearing on Campbell’s petition, and after reviewing Campbell’s brief and carefully considering the arguments of his counsel, denied the amended petition finding the issues it raised to have been disposed of in the direct appeal or otherwise procedurally waived.

Campbell had a fair opportunity to challenge his conviction under the post-conviction relief statutes and the district court denied his amended petition finding the issues it raised to be procedurally barred under Wyoming law. See Harris v. Reed, — U.S. -,-, 109 S.Ct. 1038, 1043-44, 103 L.Ed.2d 308, 316-19 (1989). We defer to the district court’s decision.

Affirmed.

1 . Some of these statutes have since been amended. See W.S. 7-14-101 through 7-14-108 (Cum. Supp.1988).