Hopkinson v. State

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

This case came on before the court upon the Petition for Writ of Habeas Corpus, together with attachments, filed on behalf of the Petitioner, Mark A. Hopkinson, on September 10, 1990; the Motion to Dismiss Petition for Writ of Habeas Corpus and the Memorandum in Support of Motion to Dismiss Petition for Writ of Habeas Corpus, filed on behalf of the Respondent, the State of Wyoming, on September 13, 1990; the Motion for Leave to File Supplement to Memorandum in Support of Motion to Dismiss Petition for Writ of Habeas Corpus, filed on behalf of the State of Wyoming on September 17, 1990; and the arguments of counsel for the parties, and the court, having considered the file and record of the court; the authorities presented by the parties; and the arguments of counsel, and being fully advised in the premises finds that:

1. The contention of the Petitioner that remarks of the prosecutor in the second trial on the penalty to be imposed shifted responsibility for imposition of the death penalty away from the jury in violation of the rule announced in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), was considered and rejected in Hopkinson v. State, 708 P.2d 46 (Wyo.1985); Hopkinson v. Shillinger, 645 F.Supp. 374 (D.Wyo.1986), reh. denied 648 F.Supp. 141 (D.Wyo.1986); and Hopkinson v. Shillinger, 866 F.2d 1185 (10th Cir.1989), cert. denied — U.S. -, 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990).

2. The Petitioner contends that the essential equivalent of victim impact evidence was presented to the sentencing jury through argument of the prosecutor in violation of the rule announced in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). This issue of prosecu-torial misconduct was considered and rejected in Hopkinson v. State, 632 P.2d 79 (Wyo.1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982), and, as to the penalty phase of the trial, again in Hopkinson v. State, 664 P.2d 43 (Wyo.1983), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983).

3. The contentions of the Petitioner that various instances of prosecutorial misconduct, justifying reversal of his conviction, occurred during the guilt phase of his trial have been considered and rejected in Hopkinson v. State, 632 P.2d 79 (Wyo.1981), cert. denied 445 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982); Hopkinson v. State, 679 P.2d 1008 (Wyo.1984), cert. denied 469 U.S. 873, 105 S.Ct. 228, 83 L.Ed.2d 157 (1984); State ex rel. Hopkinson v. District *1187Court, Teton County, 696 P.2d 54 (Wyo.1985), cert. denied 474 U.S. 865, 106 S.Ct. 187, 88 L.Ed.2d 155 (1985); and Hopkinson v. State, 708 P.2d 46 (Wyo.1985). This claim also was considered and rejected by the United States District Court, Hopkinson v. Shillinger, 645 F.Supp. 374 (D.Wyo.1986), reh. denied 648 F.Supp. 141 (D.Wyo.1986), and the rulings of that court were affirmed by the United States Court of Appeals. Hopkinson v. Shillinger, 866 F.2d 1185 (10th Cir.1989), cert. denied — U.S. -, 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990).

4. The argument of the Petitioner that he was denied material to which he was entitled under the doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), was addressed and rejected in Hopkinson v. State, 679 P.2d 1008 (Wyo.1984), cert. denied 469 U.S. 873, 105 S.Ct. 228, 83 L.Ed.2d 157 (1984). This court also has addressed the question in connection with motions for discovery. State ex rel. Hopkinson v. District Court, Teton County, 696 P.2d 54 (Wyo.1985), cert. denied 474 U.S. 865, 106 S.Ct. 187, 88 L.Ed.2d 155 (1985). In addition it has been scrutinized by the United States Court of Appeals and the United States District Court at the direction of the appellate court. Hopkinson v. Shillinger, 866 F.2d 1185 (10th Cir.1989), cert. denied — U.S. -, 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990).

5. The several claims by Petitioner that reversible error occurred in connection with the instructions to the jury with respect to aggravating circumstances have been considered and rejected in Hopkinson v. State, 664 P.2d 43 (Wyo.1983), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983).

6. The Petitioner’s earnest arguments that error occurred in the second penalty trial because of the instructions to the jury relating to mitigating circumstances in the light of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, — U.S. -, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), fail of persuasion because the record in this case would not have justified reversal based upon the legal principle articulated in those cases, the cases are distinguishable, and, under the circumstances, the court is not required to, nor would it be appropriate, to apply those cases retrospectively. The issue of the instructions relating to mitigating circumstances has been before this court, Hopkinson v. State, 664 P.2d 43 (Wyo.1983), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983), and the United States District Court, Hopkinson v. Shillinger, 645 F.Supp. 374 (D.Wyo.1986), reh. denied 648 F.Supp. 141 (D.Wyo.1986), and the instructions were approved.

7.The Petitioner’s contention that no satisfactory proportionality review has been accomplished in this ease addresses issues and repeats concerns that were considered by this court in Hopkinson v. State, 664 P.2d 43 (Wyo.1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). These issues were resolved in the prior case.

8. The assertion of Petitioner that execution by lethal injection, as provided for in Section 7-13-904(a), W.S.1977, constitutes cruel and unusual punishment is rejected as contrary to pertinent authority. Woolls v. McCotter, 798 F.2d 695 (5th Cir.1986), cert. denied 478 U.S. 1031, 107 S.Ct. 15, 92 L.Ed.2d 769 (1986); Skillern v. Procunier, 751 F.2d 744 (5th Cir.1985); O’Bryan v. McKaskle, 729 F.2d 991 (5th Cir.1984); People v. Stewart, 123 Ill.2d 368, 123 Ill.Dec. 927, 528 N.E.2d 631 (1988), cert. denied U.S. -, 109 S.Ct. 1356, 103 L.Ed.2d 824, reh. denied — U.S. -, 109 S.Ct. 1946, 104 L.Ed.2d 417 (1989); State v. Moen, 309 Or. 45, 786 P.2d 111 (1990); Ex parte Granviel, 561 S.W.2d 503 (Tex.Crim.App.1978).

9. The doctrine of res judicata is applicable in habeas corpus proceedings. Hopkinson v. State, 708 P.2d 46 (Wyo.1985).

10. Section 1-27-125, W.S.1977 provides:

“Habeas corpus is not permissible to question the correctness of the action of a grand jury in finding a bill of indict*1188ment, or a petit jury in the trial of a cause nor of a court or judge when acting within their jurisdiction and in a lawful manner.”

11. The Petitioner has not demonstrated by his pleadings or his arguments that a court or judge acted without jurisdiction or in any unlawful manner in his case.

12. The Petition for Writ of Habeas Corpus should be denied.

IT THEREFORE IS ORDERED that the Petition for Writ of Habeas Corpus, filed herein on behalf of the Petitioner, Mark A. Hopkinson, on September 10, 1990, be, and it hereby is, denied.

FOR THE COURT: *,**”

/s/ Richard V. Thomas RICHARD V. THOMAS Justice

CARDINE, J. would grant the Petition for Writ of Habeas Corpus reserving the right to author an opinion to be appended at a later date to this Order Denying Petition for Writ of Habeas Corpus.

MACY, J. would grant a stay of execution to provide more time to consider the Petition for Writ of Habeas Corpus filed September 10, 1990, reserving the right to author an opinion to be appended at a later date to this Order Denying Petition for Writ of Habeas Corpus.