Bibbins v. State
741 P.2d 115
Wyo.
1987
Check Treatment

*1 standing in shoes of the cumstance mortgage insurance to enforce the

lender $290,- to them of the repayment policy they paid order of this under 000 which Wyoming National Bank. court to the Program, Defender Public Munker, Defender, D.

Leonard State Public Serelson, Counsel, Appellate and Carol A. (Petitioner), BIBBINS, Appellant Kevin Cheyenne, appellant. Gen., Joseph Meyer, Atty. B. A. Gerald Wyoming, Appellee The STATE Stack, Gen., Deputy Atty. John W. Ren- (Respondent). neisen, Gen., Atty. Sr. Asst. David K. Gra- ver, Atty. Gen., Cheyenne, appel- Asst. lee. Court of BROWN, C.J., THOMAS, Before CARDINE, MACY, URBIGKIT JJ. BROWN, Justice. Chief from the district court’s appeal post-con-

denial viction Bibbins, states that

Appellant, Kevin J. the issues are: err dis- 1. “Did the District Court missing Appellant's petition for relief? denied due Appellant 2. “Was District Court to by the failure of the represent him in attorney to appoint an post-conviction relief?” affirm. We will 9,1982, sen- appellant was On years to six tenced to two aggra- Penitentiary the crime of State 6-4-506(b), W.S. assault under vated imposed after 1977. This sentence bargain in guilty plea in a appellant pled agreed dismiss one count the state exchange for the the information Appellant count. to the second and sen- appeal his 1982 conviction did not Appellant has since tence. February the district appealed of his court’s denial *2 “ * * tion. This court the In that same case the court also said: State, court’s determination in Bibbins v. good shown, If cause is a review is avail- ** * ” Wyo., (1985). 696 P.2d 1300 Petitions Id., able. at 65. This latter state- post-conviction relief were also filed on context, ment is not in and quota- the first 19, 1985, 6, September 1985, and flimsy support tion is for the notion that a 20, November 1985. person right convicted has a to file succes- recently appellant petition More post-conviction sive relief petitions. 13, August post-conviction This properly case was resolved petition 1986. dismissed the This opinion reference to the files and the 10, Ap- on district court 1986. State, supra. of this court in Bibbins v. pellant’s appeal is from the order dismiss- Appellant petition a ing petition. 9, post-conviction on February relief This was denied the trial court post-conviction Wyoming’s relief scheme and that denial was affirmed this court provided is for in Sections 7-14-101 7- to State, supra. Thus, in issues 14-108, W.S.1977. Post-conviction relief in the raised proceedings are not ir- every available for post-conviction pro were heard the first regularity may place that taken have in the ceeding McCutcheon v. judicata. are res court, trial but are to limited cases involv- State, Wyo., (1982). 638 650 P.2d We hold ing a substantial denial an accused’s appellant that is not entitled to have a rights under the Constitution of the United second considered. States or of the State of or both. Morgan Wyo., v. 7-14-101. See § II (1985). 708 P.2d 1244 issue, appellant In his second contends post-conviction The relief statutes do not that he was process by “denied due the post- failure the appoint district court to conviction pro- relief. Section 7-14-103 attorney represent to post-conviction him in vides “Any that: claim of substantial deni- filing relief.” With the of appellant’s peti- al of rights constitutional not raised in the post-conviction relief, tion for he filed a original or amended is waived.” motion for proceed pau- leave to in forma State, See Boggs v. Wyo., 484 711 P.2d peris appointment and motion for (1971); State, Whiteley v. F.Supp. 293 counsel. (D.Wyo.1968), 381 Whiteley aff’d sub nom. part: provides 7-14-104 Section Warden, Wyo.State Penitentiary, 416 * « * * coun- petitioner If is without (10th F.2d Cir.1969), 36 rev’d on other alleges means that he is without sel and grounds, 560, 401 U.S. 28 counsel, he shall wheth- procure state to L.Ed.2d 306 appoint- counsel to not he wishes be er or Hopkinson rel. Appellant cites State ex appointment of represent him. If ed to Court, County, Wyo., v. District Teton shall requested, is the court so counsel (1985), support 696 P.2d 54 his conten- the counsel if satisfied that appoint yet tion is file another that he entitled to procure counsel has no to tioner means post-conviction we that case » * * * stated that the case had been before us ques- after the enactment previous three occasions and that the are aware that 7-14-104, presented tions decided be- had been twice was enacted.1 7-1-110 § § the purports fore. The court then said: to limit latter “ * * * post necessity appointment counsel judicially Once a matter is decid- indigents cases cases whose conviction to ed, adequate finally it decided unless person with that “a reasonable are such justify reopen- reason to is demonstrated * * * ” bring Id., willing to adequate means ing would anew. consideration expense.” at his own at 61. 7-1-110, W.S. was renumbered Section Legislature. § § 7-6-104

H7 foreseeable, opinion, not might this we will discuss but at least as result impact may pri- counsel in the 7-1-110 have on ineffectiveness of post-conviction petition, cir or hold that under the 7-14-104. We previ ously of this the trial court misconduct, cumstances case undisclosed repre counsel to perjury original undisclosed con sent in his most recent legitimacy. which vitiates its Even relief. more obvious in current news are convic *3 tions obtained under a later invalidated pointed out in the first issue adaptation. Wyoming’s post-conviction statutes do not — States, McNally v. United U.S. —, for relief. 97 L.Ed.2d 292 readily The trial 7-14-103. court could files, appellant’s petition, determine equal protection Due intrin- prior opinion and our record people guaran- sic to the status of free as supra, that the by teed our Constitutions should not have a relief had been long time constraint as as incarceration appellant, that such acted been judicata must, however, continues. Res the trial court and that the trial applied any system delivery jus- determination had court’s been tice to work.

this court. The trial court could also deter-

mine the materials it that in with before first he had attacked Furthermore, guilty.

his the trial court was aware that his latest again attacking plea, albeit with different focus. Under these circumstances the attorney. ALEXANDER, Ronald W. (Plaintiff),

Affirmed. URBIGKIT, J., specially files a COMPANY, A PHILLIPS OIL SUBSID concurring opinion. IARY OF PETROLEUM PHILLIPS URBIGKIT, Justice, specially (Defendant). concur- COMPANY, Appellee ring. say the belief that to “never never” is Court

propitious recognition incapacity of the always anticipate of the human mind to portend, generally what the future will except expectancy

concur with that the exception unusual and inevitable will occur pronounced. to the definitive rule now recognition finality of the the limit expressly one statute, by specific mandated terms of the 7-14-103, W.S.1977, reenacted now it follows right, that the “done then done” standard demonstratively applies.

However, Constitutions abrogated and the United States cannot be rule, my reservation is retained for exception involving the rare events not now