Paul Michael Harnetty v. The State of Wyoming ( 2022 )

IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 68APRIL TERM, A.D. 2022
June 8, 2022
PAUL MICHAEL HARNETTY,
Petitioner,
v. S-21-0150
THE STATE OF WYOMING,
Respondent.
Original Proceeding
Petition for Writ of Review
District Court of Natrona County
The Honorable Kerri M. Johnson, Judge
Representing Petitioner:
Eric K. Klein, Johnson & Klein, PLLC, Boulder, Colorado; Devon W. Petersen,
Fleener Petersen, LLC, Laramie, Wyoming. Argument by Mr. Klein.
Representing Respondent:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Samuel Williams, Senior Assistant Attorney General. Argument by Mr.
Williams.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
GRAY, J., delivers the opinion of the Court; BOOMGAARDEN, J., files a concurring in
part and dissenting in part opinion.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
GRAY, Justice.
[¶1] Paul Michael Harnetty was an obstetrician/gynecologist in Casper, Wyoming. A
jury convicted him of sexually assaulting two of his patients. We affirmed his conviction
on appeal. Harnetty v. State, 2019 WY 21, ¶¶ 1–3, 435 P.3d 368, 369–70 (Wyo. 2019).
On April 20, 2020, Mr. Harnetty filed a Petition for Postconviction Relief citing numerous
alleged failures of trial and appellate counsel. He also claimed his investigator—in post-
appellate interviews—discovered evidence of juror misconduct. He submitted the
investigator’s affidavit attesting to jurors’ interview statements. Prior to an evidentiary
hearing on his claims, the State moved for summary judgment which the district court
granted on the issue of juror misconduct. Mr. Harnetty claims the district court erred in
granting the State summary judgment on Mr. Harnetty’s claim of juror misconduct without
proceeding to an evidentiary hearing. Mr. Harnetty petitioned for writ of review, which
was granted. We affirm.
ISSUES
[¶2] The issues are:
1. Did the district court lack jurisdiction to consider the
juror misconduct claim because it was procedurally
barred?
2. Did the district court err in granting summary judgment
to the State without holding an evidentiary hearing on
Mr. Harnetty’s post-conviction claim of juror
misconduct?
FACTS
[¶3] In January 2017, the State charged Mr. Harnetty, then a doctor in Casper, 1 with
twelve counts of inappropriate sexual conduct with six of his patients. Harnetty, ¶ 12, 435
P.3d at 371. Two counts were not bound over to the district court and two counts were
dismissed by the State at trial. Id. ¶ 13, 435 P.3d at 371. The jury convicted Mr. Harnetty
on two of the remaining charges—one count of second-degree sexual assault against
patient K.L. and one count of second-degree sexual assault against patient K.C. The district
court sentenced him to consecutive terms of ten to fifteen years imprisonment on each
count. Id. ¶ 14, 435 P.3d at 371. Following his conviction, Mr. Harnetty filed three motions
seeking an arrest of judgment or a new trial. All three motions were denied. He appealed
and we affirmed his conviction in Harnetty, ¶¶ 1–3, 435 P.3d at 369–70.
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At sentencing, the court was informed Mr. Harnetty had lost his license to practice medicine. Harnetty,
¶ 2, 435 P.3d at 370 n.1.
1
[¶4] Mr. Harnetty then filed a Petition for Postconviction Relief raising numerous claims.
The only issue on appeal is whether his claim of juror misconduct was sufficient to survive
summary judgment and require an evidentiary hearing.
A. Pretrial Publicity
[¶5] Prior to trial and after a hearing, the district court excluded proposed evidence
related to Mr. Harnetty from trial under W.R.E. 404(b). Also prior to trial, the Casper Star-
Tribune and other out of state newspapers ran stories about the case. Several articles
discussed Mr. Harnetty’s settlement of a malpractice claim in Georgia for one million
dollars. The Casper Star-Tribune published information that the district court had excluded
from trial, including allegations that Mr. Harnetty had “raped a child,” allegations he had
sexually harassed a nurse in Georgia, and allegations that he had to change locations to
complete his medical residencies because of his inappropriate behavior with female
colleagues. The article further discussed a Wyoming legislative bill, circulating in reaction
to Mr. Harnetty’s arrest, aimed at protecting patients from “predatory doctors.”
B. Voir Dire
[¶6] A five-day jury trial began on January 22, 2018. Prior to voir dire, the district court
noted the pre-trial publicity. It counseled the attorneys to use caution in exploring the effect
of the publicity on potential jurors. It suggested that they initially approach the issue with
“yes-or-no” questions and carefully follow up regarding the level of media exposure of any
given juror and whether that juror could set aside the exposure and remain impartial. The
possibility of a more detailed inquiry based on responses by specific jurors was left to the
discretion of the attorneys. Seven of the jurors, ultimately empaneled, acknowledged some
level of media exposure. Each stated he or she could “lay aside his impression or opinion”
based on the publicity and would be able to “render a verdict based on the evidence
presented in court” if called to serve. The jury convicted Mr. Harnetty on two of the eight
charges.
C. Petition for Postconviction Relief
[¶7] Following this Court’s decision affirming Mr. Harnetty’s conviction on direct
appeal, he hired new counsel to conduct further investigation into facts relevant to his trial.
New counsel contracted with Rachel Roberts, a licensed legal investigator. On December
15 and 16, 2019, Ms. Roberts (along with counsel) interviewed the jurors who sat in Mr.
Harnetty’s trial. Ms. Roberts submitted an affidavit detailing relevant portions of the
interviews. The affidavit averred that Juror M stated that there was “no doubt in [his]
mind” that Mr. Harnetty was guilty and that it was an “open and shut case.” When asked
what was different about the guilty and non-guilty verdicts at trial, Juror M brought up “all
that stuff [Mr. Harnetty] did in Georgia” and stated Mr. Harnetty had “done it before to
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other women.” When asked if the jurors discussed the Georgia allegations in the
deliberation room, Juror M replied, “not everyone talked about that—just a few of us.”
Juror M also stated, “that other doctors have done the same thing and ‘have walked away
from that and gotten nothing.’” In addition, Ms. Roberts’ affidavit reported comments by
two other jurors that generally indicated some jurors may have considered the media
reports.
[¶8] On April 20, 2020, Mr. Harnetty filed his Petition for Postconviction Relief
requesting an evidentiary hearing on all claims. Mr. Harnetty argued, inter alia, that juror
misconduct violated his right to a fair and impartial jury. The evidentiary support for this
claim included Ms. Roberts’ affidavit, and copies of the media coverage.
D. State’s Motion for Summary Judgment
[¶9] The State filed its answer to Mr. Harnetty’s petition on November 19, 2020. At that
time, it requested permission to file a Motion for Summary Judgment. The district court
granted the request, and the State filed its Motion for Summary Judgment on March 1,
2021. 2 The State argued that Ms. Roberts’ affidavit supporting Mr. Harnetty’s Petition for
Postconviction Relief was based on inadmissible hearsay and that Mr. Harnetty had failed
to provide admissible evidence to establish a prima facie showing of a genuine dispute as
to any material fact. It contended it was entitled to judgment as a matter of law. Mr.
Harnetty responded to the State’s motion but provided no additional evidentiary support
for his juror misconduct claim beyond that attached to his petition.
[¶10] The district court granted the State’s motion on this claim for two reasons. First, it
determined that a juror misconduct claim was procedurally barred and the district court
lacked jurisdiction stating, “Both trial and appellate counsel could have investigated the
jurors post trial and prior to appeal but failed to do so. Thus, the [c]ourt finds this matter
could have been raised in direct appeal and was not.” The court further concluded,
“Because [the affidavit signed by the post-conviction investigator] is hearsay, it is not an
‘admissible document’ for summary judgment purposes and cannot be considered for
postconviction relief.”
STANDARD OF REVIEW
[¶11] Pursuant to Wyo. Stat. Ann. § 7-14-103(a), the question of whether a petition for
post-conviction relief is procedurally barred is a question of jurisdiction. The question of
jurisdiction is a question of law that we review de novo. Schreibvogel v. State, 2012 WY
15, ¶ 8, 269 P.3d 1098, 1101 (Wyo. 2012); Goetzel v. State, 2019 WY 27, ¶ 9, 435 P.3d
2Mr. Harnetty subsequently filed his own Motion for Summary Judgment which the district court denied.
He conceded at oral argument that the denial of his motion was appropriate.
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865, 868 (Wyo. 2019) (whether claims are barred by the doctrine of res judicata is a
question of law that this Court reviews de novo).
[¶12] “We review a district court’s ruling on summary judgment de novo and may affirm
on any legal ground appearing in the record.” Miller by & through Travis v. Sweetwater
Cnty. Sch. Dist. #1, 2021 WY 134, ¶ 13, 500 P.3d 242, 246 (Wyo. 2021) (quoting James
v. James, 2021 WY 96, ¶ 23, 493 P.3d 1258, 1264 (Wyo. 2021)).
We . . . afford no deference to the district court’s ruling.
Thornock v. PacifiCorp, 2016 WY 93, ¶ 10, 379 P.3d 175, 179
(Wyo. 2016). This Court reviews the same materials and uses
the same legal standard as the district court. Id. The record is
assessed from the vantage point most favorable to the party
opposing the motion . . . , and we give a party opposing
summary judgment the benefit of all favorable inferences that
may fairly be drawn from the record. Id. A material fact is one
that would have the effect of establishing or refuting an
essential element of the cause of action or defense asserted by
the parties. Id.Miller, ¶ 13, 500 P.3d at 246 (quoting James, ¶ 23, 493 P.3d at 1265). The parties’ burdens
on summary judgment are delegated as follows:
The party moving for summary judgment bears the
burden of establishing a prima facie case and showing there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Once that burden is
met, the opposing party is obligated to respond with materials
beyond the pleadings to show a genuine issue of material fact.
When the moving party does not have the ultimate burden of
persuasion, it establishes a prima facie case for summary
judgment by showing a lack of evidence on an essential
element of the opposing party’s claim.
Id. ¶ 14, 500 P.3d at 246 (citations and quotation marks omitted).
[¶13] Statutory interpretation is a question of law reviewed de novo. Williams v.
Sundstrom, 2016 WY 122, ¶ 19, 385 P.3d 789, 794 (Wyo. 2016) (citing Clark v. State ex
rel., Dep’t of Workforce Servs., 2016 WY 89, ¶ 10, 378 P.3d 310, 313 (Wyo. 2016), and In
re CRA, 2016 WY 24, ¶ 15, 368 P.3d 294, 298 (Wyo. 2016)). “When interpreting a statute
and its application, we first look at the plain language used by the legislature. If the
[statutory language] is sufficiently clear and unambiguous, the Court simply applies the
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words according to their ordinary and obvious meaning.” CRA, ¶ 16, 368 P.3d at 298
(citing In re CDR, 2015 WY 79, ¶ 19, 351 P.3d 264, 268–69 (Wyo. 2015)).
ANALYSIS
I. The district court retained jurisdiction to consider the juror misconduct claim and
erred in applying the procedural bar found in Wyo. Stat. Ann. § 7-14-103(b)(i).
[¶14] Under Wyo. Stat. Ann. § 7-14-103(a)(i), a claim under the post-conviction “act is
procedurally barred and no court has jurisdiction to decide the claim if the claim: (i) Could
have been raised but was not raised in a direct appeal from the proceeding which resulted
in the petitioner’s conviction[.]” Conversely, under Wyo. Stat. Ann. § 7-14-103(b)(i), “a
court may hear a petition” when “[t]he petitioner sets forth facts supported by affidavits or
other credible evidence which was not known or reasonably available to him at the time of
a direct appeal.” “[B]oth the doctrine of res judicata and specific statutory restrictions
forbid raising matters in a post-conviction relief petition that were, or could have been,
raised on appeal.” Rathbun v. State, 2011 WY 116, ¶ 13, 257 P.3d 29, 34 (Wyo. 2011).
[¶15] The district court held that Mr. Harnetty’s claim of juror misconduct was barred
because “[b]oth trial and appellate counsel could have investigated the jurors post trial and
prior to appeal” and could have raised the issue of juror misconduct on appeal. (Emphasis
added.) This places an unrealistic burden on a defendant. Trial and appellate counsel did
not interview the jurors after trial and before appeal and, under the facts here, they were
under no duty to do so.
[¶16] If we were to affirm the district court’s holding, trial and appellate counsel would
need the equivalent of a crystal ball to investigate every possible avenue for relief within
the thirty days a defendant has to appeal, even those not apparent in the record. We have
not previously addressed this question in the context of a petition for post-conviction relief
and look to other courts.
[¶17] In Ex parte Burgess, Mr. Burgess brought a postconviction claim alleging that he
had “discovered only recently that during voir dire at his trial, many of the jurors failed to
accurately answer questions.” Ex parte Burgess, 21 So. 3d 746, 754 (Ala. 2008). The
Court of Criminal Appeals of Alabama remanded the case to the trial court for a
determination of whether the claims of juror misconduct could have been raised in Mr.
Burgess’ motion for a new trial. Mr. Burgess informed the trial court that his “failure-to-
disclose claims were discovered by undersigned counsel in a postconviction investigation”
and that the “claims were not raised at trial or on direct appeal because counsel had no
information that such misconduct had occurred and therefore was under no obligation to
raise the claims.” Id. at 749. The Court of Criminal Appeals of Alabama affirmed the trial
court’s order finding that Burgess’ juror-misconduct claims were precluded because Mr.
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“Burgess failed to show that his claims could not have been discovered in time to raise
them in his motion for a new trial.” Id. at 753.
[¶18] The Alabama Supreme Court rejected this conclusion:
Burgess reasonably expected that potential jurors
answered accurately the questions posed to them during the
voir dire examination. It is unreasonable to hold that a
defendant must uncover any and all juror misconduct in the
form of inaccurate responses to voir dire examination in time
to raise such claims in a motion for a new trial or on appeal.
Requiring a defendant to raise such claims of juror misconduct
during the interval between the voir dire examination and the
filing of posttrial motions places an impracticable burden on
defendants. In this case, there is no evidence before us
indicating that Burgess suspected or should have suspected that
any jurors did not accurately answer a question during the voir
dire examination. . . .
The trial court, in finding that Burgess’s claims were
procedurally barred . . . found “that the information obtained
from the jurors was available to newly appointed appellate
counsel and could have been raised in [Burgess’s] Motion for
New Trial. All counsel had to do was to interview the jurors
in post-trial interviews just as was done by petitioner’s counsel
herein.” However, it is unreasonable to require that a
defendant, unaware of any failure to answer correctly
questions posed during the voir dire examination, must contact
each juror and ask whether he or she accurately and truthfully
answered such questions. Jury service is sufficiently disruptive
of a citizen’s regular activities without this Court announcing
a rule that would routinely subject jurors to potentially
insulting postverdict interrogation concerning their veracity.
Absent any evidence that a telephone call to some or all the
jurors would have been nothing more than a mere fishing
expedition, we cannot hold on this record that Burgess’s
claims are precluded.
Burgess, 21 So. 3d at 754–55 (emphasis added); see also Ex parte Ward, 89 So. 3d 720,
725 (Ala. 2011) (“The showing of diligence required is that a reasonable effort was made.
The applicant is not called upon to prove he sought evidence where he had no reason to
apprehend any existed.” (quoting Stamps v. State, 380 So. 2d 406, 409 (Ala. Crim. App.
1980))); Martin v. State, 322 So. 3d 25, 33 (Fla. 2021), reh’g denied, No. SC18-896, 2021
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WL 3286798 (Fla. Aug. 2, 2021) (“defense counsel could not have discovered Smith’s
juvenile adjudication or grandfather’s murder absent voluntary disclosure from Smith
himself or from the State. Because Martin could not have discovered the underlying facts
about juror Smith with due diligence in time to argue this claim in the direct appeal, we
reject the State’s argument that Martin’s claim could have been raised on direct appeal and
is therefore procedurally barred.”); Com. v. Tedford, 960 A.2d 1, 20 (Pa. 2008) (Regarding
a claim of ineffective assistance of appellate counsel, the “claim depends upon an
assumption that appellate counsel had a constitutional duty to interview jurors to properly
present the jury taint claim. Appellant cites no case to support this assumption and,
contrary to appellant’s assertion, there is no general recognized duty to interview jurors.
In fact, the practice is condemned.”); Eye v. State, 551 S.W.3d 671, 677 (Mo. Ct. App.
2018) (“a juror misconduct claim amounting to a constitutional error can only be raised in
a [post-conviction] motion when the factual basis of the juror misconduct was not
discovered until after the trial” (citing State v. Wilson, 812 S.W.2d 213, 216 (Mo. Ct. App.
1991))).
[¶19] It is uncontested that Mr. Harnetty’s juror misconduct claims were discovered after
his direct appeal. As the State points out, voir dire included questions regarding the effect
of pretrial publicity on potential jurors. Each selected juror stated that he or she could set
aside the pretrial publicity and render an impartial decision based on evidence presented at
trial. Under Wyo. Stat. Ann. § 7-11-106, 3 a prospective juror cannot be challenged if he
or she states that any opinion or impression formed from pretrial publicity can be laid aside
and the prospective juror will “render a verdict based on the evidence presented in court.”
Wyo. Stat. Ann. § 7-11-106(a)(i).
[¶20] “Counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Anderson v. State, 2014 WY
13, ¶ 44, 317 P.3d 1108, 1122 (Wyo. 2014) (quoting Osborne v. State, 2012 WY 123, ¶ 20,
285 P.3d 248, 252 (Wyo. 2012)). Like the Alabama Supreme Court, under these
circumstances, we do not find it reasonable to impose a duty on trial or appellate counsel
to doubt juror veracity or to question each juror who is known to be exposed to pretrial
publicity after trial. Because the information on potential jury misconduct was not
3
§ 7-11-106. Opinion formed from news reports or rumors.
(a) It is not cause for challenge that a person called to act as a juror in
a criminal case has formed or expressed an opinion as to the guilt or
innocence of the accused from news media reports or rumor if:
(i) The prospective juror states that he can lay aside his
impression or opinion and render a verdict based on the evidence
presented in court; and
(ii) The court is satisfied, from the examination of the
prospective juror or from other evidence, that he will render an
impartial verdict according to the law and the evidence submitted
to the jury at trial.
Wyo. Stat. Ann. § 7-11-106 (LexisNexis 2021).
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available in the trial record, appellate counsel was under no duty to interview jurors prior
to appeal. Mr. Harnetty’s claim of juror misconduct is not procedurally barred.
II. The district court did not err in granting summary judgment to the State without
holding an evidentiary hearing on Mr. Harnetty’s post-conviction claim of juror
misconduct.
[¶21] Mr. Harnetty argues that Ms. Roberts’ affidavit was sufficient under Wyoming’s
post-conviction statutes and State ex rel. Hopkinson v. Dist. Ct., Teton Cnty., 696 P.2d 54(Wyo. 1985) to provide the factual basis for his juror misconduct claim and entitle him to
an evidentiary hearing where he could call witnesses to testify under oath. The State
responds that this argument ignores the posture of the case, the precise language used by
the district court, and the intentionally narrow nature of post-conviction relief.
[¶22] The key to the resolution of these arguments is in recognizing that the process here
involved two steps, each with its own evidentiary standard. Our analysis begins and ends
with the plain language of the statutes governing post-conviction relief. Wyo. Stat. Ann.
§§ 7-14-101 through -108. The initiation of a petition for post-conviction relief is found
in Wyo. Stat. Ann. § 7-14-101:
(b) Any person serving a felony sentence in a state penal
institution who asserts that in the proceedings which resulted
in his conviction or sentence there was a substantial denial of
his rights under the constitution of the United States or of the
state of Wyoming, or both, may institute proceedings under
this act [§§ 7-14-101 through -108]. . . .
(c) Unless otherwise inconsistent with the provisions of
this act, proceedings under this act shall be conducted
pursuant to the Wyoming Rules of Civil Procedure and the
Wyoming Rules of Evidence, except:
(i) Any evidentiary hearing shall be conducted
before the court without a jury; and
(ii) Rules 3, 4, 14, 22, 23, 24, 38, 39, 40.1, 42, 47,
48, 51, 55, 59 and 64 through 71.1 of the Wyoming
Rules of Civil Procedure shall not apply to proceedings
under this act.
Wyo. Stat. Ann. § 7-14-101(b)–(c) (LexisNexis 2021) (emphasis added).
[¶23] Wyo. Stat. Ann. § 7-14-102 identifies the necessary contents of the petition:
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(a) The petition shall state:
(i) The proceeding in which the petitioner was
convicted;
(ii) The date of the rendition of the final judgment;
(iii) The facts which show the petitioner’s
constitutional rights were violated; and
(iv) Any previous proceedings in which the
petitioner has been involved to secure relief from his
conviction.
(b) The petition shall be accompanied by affidavits,
records or other evidence supporting the allegations or
shall state why the same are not attached.
(c) The petition may contain argument, citations and
discussion of authorities.
Wyo. Stat. Ann. § 7-14-102 (emphasis added).
[¶24] In accord with this statute, Mr. Harnetty filed his petition and attached Ms. Roberts’
affidavit to support his claim of juror misconduct.
[¶25] Mr. Harnetty argues Ms. Roberts’ affidavit was sufficient to place his juror
misconduct claim at issue. It stated with specificity the basis for his claim. It recounted
specific statements by several jurors made to Ms. Roberts supporting his contention that
evidence excluded by the court was considered during the deliberations. Citing Pote v.
State, 733 P.2d 1018, 1021 (Wyo. 1987), Mr. Harnetty claims he provided a sufficient basis
to entitle him to an evidentiary hearing where he could present the testimony of the persons
identified in the affidavit.
[¶26] We agree. In Pote we said,“[I]n order to be entitled to an evidentiary hearing on a
petition for post-conviction relief the petition must contain more than naked allegations
and conclusions and documents. Petitioner must plead a substantial claim and demonstrate
how the allegations can be proven.” Pote, 733 P.2d at 1021. See also Hopkinson, 696 P.2d
54. Ms. Roberts’ affidavit contained specific information sufficient to take Mr. Harnetty’s
claim to the next level. The affidavit reflects Ms. Roberts’ personal knowledge of
interviews with named jurors. It includes statements by those jurors that indicate
information outside of the evidence at trial may have been considered during deliberations.
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At this point, Mr. Harnetty had vaulted the first hurdle in his effort to obtain post-conviction
relief and advanced to the next step in the statutory process.
[¶27] The district court ordered the State to respond to Mr. Harnetty’s Petition for
Postconviction Relief. Wyo. Stat. Ann. § 7-14-105 states:
(a) Within forty-five (45) days after being ordered to
respond to the petition by the court, or within any further time
as the court may fix, the attorney general on behalf of the state
shall answer or move to dismiss the petition. No other or
further pleadings shall be filed except as the court may order
on its own motion or on that of either party.
(b) The court may grant leave to the petitioner, at any stage
of the proceeding prior to entry of judgment, to withdraw the
petition.
(c) The court may by order authorize:
(i) Amendment of the petition or any other
pleadings;
(ii) The filing of further pleadings; or
(iii) An extension of the time for filing any further
pleading other than the original petition.
Wyo. Stat. Ann. § 7-14-105.
[¶28] The State responded to Mr. Harnetty’s petition and, as contemplated by Wyo. Stat.
Ann. § 7-14-101(c), moved for permission to file a motion for summary judgment. The
district court granted the State’s motion.
[¶29] Following the district court’s ruling, the State filed its motion for summary
judgment claiming Mr. Harnetty had not provided sufficient evidence under Rule 56(c) to
establish his claim of juror misconduct. Rule 56(c) governs summary judgment
procedures:
(1) Supporting Factual Positions. — A party asserting that
a fact cannot be or is genuinely disputed must support the
assertion by:
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(A) citing to particular parts of materials in the
record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to
support the fact.
(2) Objection That a Fact Is Not Supported by Admissible
Evidence. — A party may object that the material cited to
support or dispute a fact cannot be presented in a form that
would be admissible in evidence.
W.R.C.P. 56(c)(1)–(2) (emphasis added). In accord, under Rule 56(c)(1)(B) and (c)(2), the
State alleged Ms. Roberts’ affidavit contained only hearsay which is not admissible at trial.
It argued summary judgment was appropriate because Mr. Harnetty had not presented any
admissible evidence of juror misconduct.
[¶30] Mr. Harnetty did not submit additional evidence. Instead, in his response to the
State’s motion, he relied on Ms. Roberts’ affidavit attached to his petition for post-
conviction relief. In doing so, he failed to meet the requirements of Rule 56(c) requiring
him to produce admissible evidence in response to the State’s motion for summary
judgment. In the absence of admissible evidence, the district court granted the State’s
motion on Mr. Harnetty’s claim of juror misconduct.
[¶31] On appeal, Mr. Harnetty argues the district court erred in applying the Rule 56
standard. While he acknowledges certain Wyoming’s Rules of Civil Procedure apply to
post-conviction relief proceedings under Wyo. Stat. Ann. § 7-14-101(c), he relies on the
statutory qualification that the Wyoming Rules of Civil Procedure and the Wyoming Rules
of Evidence do not apply when they are “otherwise inconsistent with the provisions of this
act.” In support of his argument, he contends the jurors would not voluntarily submit
affidavits, and the district court had “not ordered depositions or other forms of civil
discovery, which would usually form the basis for undisputed material facts in summary
judgment litigation.” Because the post-conviction relief statutes contain no provision for
discovery, he concludes “[t]he district court’s ruling is inconsistent with [Wyo. Stat. Ann.]
§ 7-14-102 and undermines the right of persons serving prison sentences to redress
constitutional errors that resulted in their convictions as guaranteed by [Wyo. Stat. Ann.]
§ 7-14-101(b).”
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[¶32] The problem for Mr. Harnetty is that Rule 56 is consistent with the post-conviction
procedure. It provides specific mechanisms to overcome obstacles to a party’s ability to
present essential facts under these circumstances:
(4) Affidavits or Declarations. — An affidavit or
declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.
(d) When Facts are Unavailable to the Nonmovant. — If
a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations
or to take discovery; or
(3) issue any other appropriate order.
W.R.C.P. 56(c)(4)–(d) (emphasis added).
[¶33] Once the State moved for summary judgment, Mr. Harnetty’s opposition to the
motion was governed by Rule 56. When the burden shifted to him, he was required to
produce admissible evidence to satisfy the existence of a disputed material fact on each
essential element at issue. Page v. Meyers, 2021 WY 73, ¶ 11, 488 P.3d 923, 926 (Wyo.
2021). As the nonmovant, he could have petitioned the district court for additional time, 4
requested the opportunity for discovery, or any other appropriate order. Ms. Roberts’
affidavit, alone, was insufficient. “Speculation, conjecture, the suggestion of a possibility,
guesses, or even probability, are insufficient to establish an issue of material fact on any
essential element.” Id. (citations and quotation marks omitted).
[¶34] Mr. Harnetty claims “[t]he district court based its ruling on a belief that hearsay in
an affidavit could not be considered for postconviction relief whatsoever.” We disagree.
The district court allowed his post-conviction petition to proceed on Ms. Roberts’ affidavit.
When the State filed for summary judgment, the posture of the case changed. At that
juncture, Mr. Harnetty was required to submit evidence admissible at trial to defeat the
State’s motion. The district court was obliged to address the summary judgment motion
4
See Wyo. Stat. Ann. § 7-14-105(c), “The court may by order authorize: . . . (iii) An extension of the time
for filing any further pleading other than the original petition.”; and W.R.C.P. 56(d).
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and, if Mr. Harnetty was successful in raising a question of fact through admissible
evidence, hold an evidentiary hearing. Contrary to Mr. Harnetty’s assertions, he had the
tools to assist him in surmounting any obstacles to meeting his burden on summary
judgment. He failed to use them.
CONCLUSION
[¶35] Mr. Harnetty’s juror misconduct claim was not procedurally barred for failing to
raise the claim on direct appeal. The post-conviction relief statutes and the inclusion of
procedures to respond to summary judgment create an unambiguous and seamless
opportunity for the petitioner to present his post-conviction constitutional claims.
Summary judgment in favor of the State is affirmed.
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BOOMGAARDEN, Justice, concurring in part and dissenting in part.
[¶36] I concur in the majority’s conclusion that Mr. Harnetty’s juror misconduct claim
was not procedurally barred. I respectfully disagree with the majority’s conclusion that the
State was entitled to summary judgment on his juror misconduct claim.
[¶37] Mr. Harnetty was entitled to an evidentiary hearing on his juror misconduct claim
once he cleared what the majority characterizes as “the first hurdle in his effort to obtain
post-conviction relief[.]” It is inconsistent with the post-conviction relief statutes and our
precedent to allow the State to use W.R.C.P. 56 to strip him of his entitlement to an
evidentiary hearing under these circumstances.
[¶38] In Hopkinson, we said:
Before a person is entitled to an evidentiary hearing on a
petition for post-conviction relief, there must be set forth in the
text of the petition and the required supporting attachments a
substantial claim plus some specificity in support of the claim.
Boggs v. State, Wyo., 484 P.2d 711 (1971). In order to justify
a hearing, there must be more than a naked statement of a
conclusion unsupported by an evidentiary basis. Cook v. State,
220 Kan. 223, 552 P.2d 985 (1976); State v. Gillihan, 85 N.M.
514, 514 P.2d 33 (1973). There must not only be verified
factual allegations in the petition, § 7-14-101, but the statutory
requirement is that they must be supported, likewise with some
specificity, § 7-14-102.
State ex rel. Hopkinson v. Dist. Ct., Teton Cty., 696 P.2d 54, 61 (Wyo. 1985).
[¶39] In Pote, we said:
A petition is properly denied without an evidentiary hearing
where it contains only bald allegations and conclusions with no
supporting factual materials. Boggs v. State, Wyo., 484 P.2d
711 (1971). Therefore, in order to be entitled to an evidentiary
hearing on a petition for post-conviction relief the petition must
contain more than naked allegations and conclusions and
documents. Petitioner must plead a substantial claim and
demonstrate how the allegations can be proven. Hopkinson v.
State, Wyo., 696 P.2d 54 (1985).
Pote v. State, 733 P.2d 1018, 1021 (Wyo. 1987); see also Smizer v. State, 835 P.2d 334,
337 (Wyo. 1992) (“Before a person seeking post-conviction relief is entitled to an
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evidentiary hearing, he initially must present a substantial claim with specificity.” (citation
omitted)).
[¶40] The majority agrees that Mr. Harnetty met these standards entitling him to an
evidentiary hearing. But then it concludes the State was entitled to summary judgment on
his juror misconduct claim because his investigator’s affidavit was based on hearsay and
thus could not establish a genuine issue of material fact. These conclusions are incongruent
and sanction the State’s use of W.R.C.P. 56 as a procedural trap to preclude full
development of the evidentiary basis necessary to fairly rule on a substantiated post-
conviction claim.
[¶41] I acknowledge that Hopkinson and Pote did not require this court to juxtapose a
petitioner’s entitlement to an evidentiary hearing, under Wyo. Stat. Ann. § 7-14-106, with
a request by the State to deny the petition on summary judgment. Hopkinson, 696 P.2d 54;
Pote, 733 P.2d 1018. On considering that juxtaposition, however, I am convinced that the
majority raises the bar too high, in conflict with longstanding post-conviction relief
protections.
[¶42] Post-conviction relief proceedings are intended to remedy the violation of a
petitioner’s constitutional rights. Wyo. Stat. Ann. § 7-14-101(b) (“Any person serving a
felony sentence in a state penal institution who asserts that in the proceedings which
resulted in his conviction or sentence there was a substantial denial of his rights under the
constitution of the United States or of the state of Wyoming, or both, may institute
proceedings under this act.”). A petitioner has one shot at this form of relief. Wyo. Stat.
Ann. § 7-14-103(a)(ii) (“A claim under this act is procedurally barred and no court has
jurisdiction to decide the claim if the claim: . . . [w]as not raised in the original or an
amendment to the original petition under this act[.]”); Bibbins v. State, 741 P.2d 115, 116
(Wyo. 1987) (“The post-conviction relief statutes do not contemplate successive petitions
for post-conviction relief.”); Boyd v. State, 747 P.2d 1143 (Wyo. 1987) (affirming denial
of a second petition for post-conviction relief). As a petition for post-conviction relief is,
at its core, “a continuation of the criminal case and not a civil action,” Hopkinson, 696 P.2d
at 61, I cannot endorse a rule that gives the State a civil rule procedural advantage that
operates to undermine the plain meaning and intent of Wyoming’s post-conviction relief
statutes.
[¶43] I take no issue with the fact that post-conviction relief proceedings are conducted
pursuant to the rules of civil procedure, including W.R.C.P. 56. Harlow v. State, 2005 WY
12, ¶ 1 n.1, 105 P.3d 1049, 1054 n.1 (Wyo. 2005) (citations omitted); Wyo. Stat. Ann. § 7-
14-101(c). Indeed, some claims for post-conviction relief can and should be resolved on
summary judgment without an evidentiary hearing. See, e.g., Harlow, 2005 WY 12, 105
P.3d 1049. The State may, for example, be able to show on the existing criminal record
that a claim is procedurally barred. Wyo. Stat. Ann. § 7-14-103(a). The State may also be
able to show on the existing criminal record that the petitioner cannot establish “that in
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the proceedings which resulted in his conviction or sentence there was a substantial denial
of his rights under the constitution of the United States or of the state of Wyoming, or
both[.]” Wyo. Stat. Ann. § 7-14-101(b).
[¶44] However, some post-conviction relief claims, like Mr. Harnetty’s juror misconduct
claim, cannot be resolved on the existing criminal record and need to be developed at an
evidentiary hearing before they can be fairly resolved. See Smizer, 835 P.2d at 338
(explaining that a hearing is not required in every case; “[h]owever, in rare cases such as
this one, an evidentiary hearing is necessary when the court cannot adequately review the
issues by relying upon the record alone”); see also Pote, 733 P.2d at 1021 (“Whether a
formal hearing is held . . . depends on the circumstances of each case.” (citation omitted)).
Under these circumstances it is inconsistent with our post-conviction relief statutes to tilt
the playing field in the State’s favor by allowing it to use summary judgment as a trap for
a petitioner who is otherwise entitled to a hearing under those statutes. We should not
require Mr. Harnetty, or any similarly situated petitioner, to re-establish pursuant to
W.R.C.P. 56(d) what he has already shown.
[¶45] The manner in which the State used summary judgment in these proceedings was
flawed. See Vandeberg v. State, 2003 ND 71, ¶ 7, 660 N.W.2d 568, 571–72 (“[T]he State
cannot require the petitioner, in every post-conviction relief case, to prove up his case prior
to any hearing merely by moving for summary disposition and asserting the petitioner has
offered no evidence to support his claims.”). When a substantiated post-conviction relief
claim cannot be resolved on the existing criminal record and needs to be developed at an
evidentiary hearing, to require the petitioner to make an additional showing under Rule
56(d) impermissibly prioritizes procedural form over constitutional substance.
Accordingly, I cannot subscribe to the use of W.R.C.P. 56 to override the sufficiency of
Mr. Harnetty’s juror misconduct showing under Hopkinson and Pote.
[¶46] For these reasons, I would reverse and remand for an evidentiary hearing on Mr.
Harnetty’s juror misconduct claim.
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