*1 published, fees since 4 was torney’s upon successful before Exhibit at- Ristau defending compen- meeting their Cunningham entitlement to a tended with a Keith judgment. satory II and Dan Hall which they discussed pay policies UNC Teton’s termination GOLDEN, J., dissenting filed a pay then decided discontinue termination opinion. practices Teton; (2) at UNC Ristau was aware Teton had UNC discontinued all GOLDEN, Justice, dissenting. pay policies applicable termination to its entitled, respectfully part I dissent to IV Appellees’ employees. objections to UNC “Sufficiency Evidence,” part of the V attempted Teton’s cross-examination of Mr. entitled, “Limitation of Cross-Examination erroneously Ristau were sustained on Ristau,” opinion. Litigant majority of parol of basis evidence Exhibit 4 rules. sufficiency-of-the- the majority’s Under contract; rather, was not evidence a it analysis part opinion, evidence IV of the fact, i.e., of a was evidence that Teton UNC that it is said this court considers the trial poli- did not pay discontinue its termination analyzed “as it Exhibit court’s decision itself, cy. existed, contract towas and then memorandum and its effect personnel be found in UNC Teton’s man- evidentiary rulings made on discussions ual, only which was referred to in Exhibit from which the memorandum resulted.” 4. which is Exhibit used as evidence a “disposi- majority then states that the contract, fact rather as than evidence of a question tive whether the trial court was susceptible explanation by ex- be required to conclude that Exhibit 4 trinsic or circumstances facts. Kinser v. only memorandum constituted not a re- Elkadi, 226, 234 (Mo.App.1984). 674 S.W.2d pro- of UNC scission Resources benefit prejudiced by was trial UNC Teton gram also constituted but a rescission request restriction court’s erroneous of its rights provided employer, the actual Ristau; Mr. cross-examine it should UNC Teton.” UNC Teton’s failure to to offer con- have been allowed evidence to provide written evidence of termination appellees’ contention tradict the that UNC rights, of benefits other than Exhibit Teton discontinue its did not termination majority finds a factual for the basis pay policy. only trial court’s decision that 4 not Exhibit I and remand for new would reverse benefits, terminate did not UNC Teton’s oppor- would trial at which UNC have full provided suggestion “evidentiary but also Mr. tunity to examine Ristau. benefits that those would be continued” actually until Teton them. UNC rescinded

According to the majority, Exhibit ambiguous. conclusion, however,

This is at odds with recognized by part majority in its of the trial

V discussion court’s erroneous limitation UNC Teton’s cross-examina- (Defendant), AMIN, Appellant Abdula majority correctly tion of Ristau. As the notes, trial erroneously court restricted Wyoming, The STATE party UNC Teton’s cross-examination of (Plaintiff). Appellee support UNC Ristau to Teton’s thesis rescinded not Re- Exhibit UNC No. 87-289. benefits, wage sources continuation but Wyoming. Supreme Court of wage Teton’s bene- also UNC continuation designated error cannot fits. This May Had allowed harmless. UNC Teton been Ristau, fully cross-examine Mr. the evi- dence would have shown: about

September day 11 or or two

III object improper to Counsel’s failure to Amin was impeachment preju- of Valerie among him appellant denying to dicial of law and ef- rights, process other due assistance of counsel. fective IV Appellant assistance was denied effective supporting ap- of counsel when evidence pellant’s put defense was not before jury.

V ineffective. Appellant’s counsel was they ad- Counsel was ineffective when testify so he appellant to not vised his to the preserve could habitual criminal case. Munker, Public Defend-

Leonard D. counsel, Serelson, appellate Carol er and VI appellant. for process due of law Appellant was denied Gen., Atty. Joseph Meyer, B. John W. mitigating to the failure evidence Renneisen, Gen., Atty. A. Karen Sr. Asst. in the provided jury to the habitual Luckhaupt, and At- Byrne, Gerald P. Asst. criminal case. Gen., tys. appellee. for VII C.J., CARDINE, Before denying appel- The trial court erred URBIGKIT, THOMAS, MACY and for petition post-conviction lant’s relief. J., BROWN, Retired. Amin not raise ineffective assistance of did petition. in his counsel an issue BROWN, Justice, Retired. We affirm. appeals Amin the denial of his Abdula set case are out The facts post-conviction pe- relief. petition for That (Wyo. Amin P.2d following issues: tition raises 1985), conviction of affirmed Amin’s which abetting robbery. aiding aggravated I original filed his January Amin On petition post-conviction relief under for Appellant was denied effective assist- through 7-14-108 W.S. 7-14-101 ance, equal process, protection due a to The state filed motion dismiss argue to counsel’s failure marital 2,1987, responded and Amin to that March joinder to defeat privilege as means filing to his motion amend motion own spouse. of his his trial with that petition his under 7-14-104 W.S. responded to these mo The district court II Amin appointing for tions ruling withholding state’s motion effectively on the to cross-ex- failure Counsel’s counsel could appointed until deprived petitioner dismiss Valerie Amin amine Amin’s respond motion. right state’s confront of his constitutional post-conviction relief petition amended assistance of and effective witnesses The filed May 1987. state was filed on counsel. procedural a motion dismiss on June lels waiver hearing district court on Amin’s held Cutbirth, relief in the federal courts. 1261-62, petition amended and the motion to dismiss and cases P.2d at cited therein. August 20, 1987. At the conclusion Amin issues raises in his amended hearing the district court asked for carefully phrased in terms of briefing further on the issue of marital infirmities, constitutional based on a theme *3 privilege. Only supple- the state filed a of ineffective assistance of trial counsel. mental brief issue. on that After consider- carefully The district court reviewed each ing supplemental the reviewing brief and August of them in its hearing, record, the district court denied Amin’s petition and then denied the amended be petition amended on October 1987. cause the issues it procedurally raises are This followed. Wyoming barred under law. See Harris v. This scope ques- court addressed the of Reed, U.S. -, -, 109 S.Ct. tions that can raised in a for be 1043-44, (1989); 103 L.Ed.2d 316-19 post-conviction State, relief in Cutbirth v. State, and Campbell v. (Wyo. 772 P.2d 543 (Wyo.1988), 751 P.2d where we 1989). agree We with that determination. stated: Affirmed. ap This court taken disciplined has a proach relief, post-conviction to pointing URBIGKIT, Justice, dissenting. out that it is not a substitute for appeals1 This is one of three involving right upon appeal a con review from viction, the contention of ineffectiveness of trial nor is it to be as an treated State, by counsel where the decision this Wyo., court is Pote v. 733 P.2d (1987); impeded by procedural Hoggatt State, a Wyo., v. disenfranchise- (1980); State, Wyo., P.2d 718 ment Johnson v. to avoid consideration of the facts as cert. denied 442 as well substantive determination of (1979); 61 L.Ed.2d 300 Mu charge whether the of ineffectiveness of Maschner, Wyo., noz v. P.2d appointed counsel for the defendant was (1979). Questions which raised be justified. concept, basic the method se- by post-conviction motion are relief by majority ignores lected supervisory magni limited to those constitutional responsibility justice for the criminal deliv- miscarriage tude which manifest ery system adequate which should assure justice. State, Wright Wyo., P.2d representation by competent counsel as Const, State, Hoggatt supra. by Wyo. mandated art. 10 and § Those issues which could have been the Sixth and Fourteenth Amendments of presented open are not to chal States United Constitution. Constitu- lenge by a motion for re validity adjudication tional substantive they by lief because are foreclosed is sacrificed the altar denominated judicata. doctrine of Wright res procedural waiver and default act of State, supra; State, supra; Hoggatt v. defending inquiry counsel. is forfei- Maschner, supra. Munoz v. rights ture or foreclosure of constitutional action, inaction, explain igno- from originating We went on in to or Cutbirth waiver, paral- procedural is a rule of rance or counsel.2 which of trial defense State, Murray (Wyo.1989); participation P.2d 206 Kal of the client. without decisional (Wyo.1989). descriptive las v. 776 P.2d 198 singular Cogently terms in stated Westen, Away Waiver: A Rationale from pervasive where misapplication of terms A2. Rights in Criminal Constitutional right ex- Forfeiture of and constitutional procedural default (1977), Procedure, 75 Mich.L.Rev. implanted in the tinguishment theories Westen related: system. Professor delivery justice adjudicatory criminal conscious decision with Waiver occurs years ago, with- Ten occurs when I charged Forfeiture was a student in law defendant. school, ineffec- knowledge or consent. In these I learned that it was difficult out his for a cases, proper designation criminal completely of counsel defendant to tiveness lose his right normally assert the result occurs to is forfeiture since constitutional defenses. The composed effective, der to Profes- for the forfeiture paradigm incompetence may impor- counsel’s be an sor Assistance Strazzella Ineffective Uses, target tant for the New Prob- defendant’s attack. New Counsel Claims: The use of ineffectiveness claims neu- lems, Ariz.L.Rev. 474-75 possible likely forfeitures tralize perceptiveness: with admirable phenomenon light become an increased rights over which of a de- The debate developments recent forfeiture law lost inactivi- fendant can be counsel’s as it relates to collateral attack. There is decision, distinguished ty as from a or growing potential that more defen- personal of the de- considered decision required prove dants may be ineffec- fendant, the most is one of confused link leading tiveness as an essential procedure. in criminal difficult issues underlying relief claim timely on an made has been more obscure The area properly litigated earlier. [Footnotes erroneously often because courts have omitted.] some forfeiture referred to situations *4 situations, thereby inviting opposition ref- my sup- “waiver” Intrinsic to to this requiring posed expediting adjudication philo- erence to the waiver standards is a sophically personal, knowing, and bedrocked determinate that sub- the defendant’s stantive, disposition procedural, not of liti- A intelligent right. decision to waive a gation always preferred is to if not also properly refers forfeiture to a forfeiture is, required. inquisition A more obvious proce- of remedies and is a facet of the considerations, fearful of substantive what judgments; principle dural law of it is a judges do the justice courts—the de- finality judgments. the concerned with of —the livery system have to hide of denial may Many remedies be forfeited without substituting factual consideration when anyone’s conscious decision. Some procedural subterfuge. exchange adju- We partic- be forfeited without the active dicatory appel- dilettantism for substantive ipation of the defendant. It is a difficult late review. to sort out those situations in which task counsel, acting, failing act, or to without printers If of the Wyoming the word personal the defendant’s and under- Supreme usage were denied Court standing participation, may waiver, to be taken phrases words and of forfeiture remedy procedural forfeited a for the defen- have and default when to test called sorting accomplished, action, is negligence dant. Once inaction or de- of however, counsel, is acknowledged and once it fense seemingly this court would many act have competently processing that counsel must or- its of criminal law them, only way relinquish relinquish he could his constitution- and ever decision to without defenses, told, by actually having position I was was "waiv- been in a to al make a cost-free Moreover, waiver, ing" them. in order to establish decision to assert them. Unlike for- defenses, by operation of that a defendant had waived his feiture occurs regard without law show, rigorous it state faced a test: had to to the defendant’s state of mind. phrase, famous that his [Footnote omitted.] the "knowing, intelligent waiver (as voluntary." and As he In oth- then further notes was in words, yet permanently today): er prevent before the state could and remains asserting a defendant from constitu- formulation of the doc- The classic waiver defenses, Zerbst, trine tional it had show that he made a is in Johnson v. defenses, forgo (1938): deliberate decision to these S.Ct. 82 L.Ed. "A [58 1461] being fully ordinarily relinquish- made the decision an that he after waiver is intentional alternatives, consequences right apprised of a or of and ment or abandonment known nothing privilege.” Everyone's and that the state itself had done favorite article on waiver, rights provocative assert most make a decision to his more and still the treat- Tigar, "costly" relinquish subject, Supreme than a decision to them. The ment Term, Court, Today things are Foreword: Con- different. Law students Waiver of Citadel, Rights: Disquiet in now learn that a defendant can lose his con- stitutional them, only waiving stitutional defenses Harv.L.Rev. Bines, "forfeiting” significant Remedying them. Id. at 1214 n. 1. See also but also Representation in between waiver and forfeiture is Criminal Cases: difference Ineffective Departures Corpus, Va.L.Rev. a defendant can forfeit his defenses with- Habeas that from deliberate, having made a informed out ever grind appeals inoperable finding to an halt. fact Sub- examination which constitutes decretory meaningful resolution of issues for disposition stantive substance of validity, specifically including adequate conviction the claimed denial of assistance performance adequacy public agency through of counsel guilt the initial determi- counsel, appears as an just nonsensical, defense undefinable nation. What we do is not space like void the black hole outer it is senseless and absurd. assumption resolution. The in that practical indispensable compo- normally apprehends perplexi- avoidance procedural nent of forfeiture and defaults ty that lacks real to exist. substance Per- escape as an disposition from substantive haps in quantum dug no has this court attorney fault is found without exami- unnecessary operational such an disin- or opportunity provided. nation for denial digenous applying procedural chasm as in procedural default, Forfeiture even post-conviction-relief default cases to waiver, dispository when labeled as a mes- performance ap- test counsel’s in trial and analysis siah means repose without peal. quality We do not defend the defending attorney probably Wyoming lawyers, play games we word appellate attorney wrong committed a answering by qual- avoid examination what waived, forfeited, their they they client— ity actually provided. of assistance was they needless, see, you defaulted. It is jurisdiction

Almost no other has chosen then first dissect whether there was a sub- preclusion this character of for avoidance improperly stance that could be waived or responsibility jus- resulting is, of constitutional for the syllogism defaulted. Our “If *5 delivery system defaulted; tice administration. The it was—it was waived or since it travesty concept perceive in is failure to was waived and defaulted —it must have actually the result now demanded of all been.” Avoidance of substantive consider- appellate in any appearance counsel criminal case. ation reality creates an of the responsibility which, fact, may Moral and ethical acknowl- in never have existed at edgement require that defense a of ineffec- all. by tiveness of trial counsel should raised be peculiar relationship of forfeiture appellate appeal counsel in each initial and default to ineffectiveness of counsel appellate attorney since the otherwise philosophic coverage legal colors the of the only flog. left as the sinner available to process function. Most in criminal cases possible post-conviction Rather than leave jurisdiction by appointed are defended

processes for the evaluation of the charac- counsel as a function of the office of the counsel, performance, appellate ter of first public higher percent- defender. An even essence, presumed incompe- in becomes the age appeals by all criminal are handled by flight analy- tent of words in failure and the same office. If one must review the by simple conjecture sis of trial time events last 130 opin- criminal cases as matured to been, that whatever it have it was appealed ion when to this court where the appeal. waived on first public office of the defender has tried the This appeal, only stricture vested without the usual case and handled the six cases post-trial hearing present issue,3 benefit of or additional an ineffectiveness and none statistics, State, which, by Engberg ap 3. As demonstrated it is not a close add No. 87-15 ly specific operational policies counsel, held secret that pellate was the most indefensible of public agency reject raising of the defender ini any.) tial issues of of trial Since June of this court has been apparent many counsel. It is also from far too presented through argument oral with “duty loyalty” briefs that a or "failure to eight pleaded ineffectiveness of counsel cases. subject prosecution’s meaningful the case to ad those, State, Laing One of 746 P.2d 1247 versary testing" missing. is also Osborn v. Shil 1987), (Wyo. appeal urging was an ineffective (10th Cir.1988). linger, 861 F.2d See private ness of trial counsel where both counsel State, (Ur Campbell (Wyo.1989) 772 P.2d 543 private tried the case and different J., State, bigkit, dissenting); Smallwood v. presented appeal was denied J., (Wyo.1989) (Urbigkit, dissenting); P.2d 798 on the merits. State, (Wyo.1988) and Cutbirth v. (Urbigkit, 751 P.2d 1257 J., (And dissenting). I would like to State, filings appeared January since (Wyo.1985), have 695 P.2d present Wyoming adjudi- while Amin 1988. What Valerie was convicted of both catory system presents step aggravated is the forced robbery kidnapping and in a by joint just of defense counsel avoidance failure to trial. It accessory was not appeal raise the issue on initial and then conviction Amin greatest that caused procedural pro- grief, applies supplementing this court default but his conviction was tect initial trial counsel denial of prior sub- enhancement a criminal record to analysis disposition. and, and With no stantive derive a habitual criminal stature de- encountered, exceptions yet sys- spite sojourn Wyoming, his brief to come to presupposes predetermines tem the re- he now receives a lifetime sentence ingredients Wyoming Yet, sult without relation to factual Penitentiary. in im- passioned criminal conviction. through individual refrain the course of proceedings, these Amin claims that he did We are then directed to the factual crimi- nor, fact, not receive a fair any trial Amin, nal case of Abdula also known as criminal offense was ever committed Reed, black, Chey- James a who came to either he except prostitution.4 or his wife wife, enne with his common-law Valerie Amin, protector, Following sentence, and served as her conviction and life pimp, professional her as she exercised en- was then taken to raise five issues: prostitute. seizure, deavor as a Amin either did or search and prejudicial joinder, de- customer, but, “Murphy” did not do a on a nied effective cross-examination of his event, wife, “aiding was convicted denied lesser-included offense instruc- robbery,” Amin v. tion, abetting aggravated right denied constitutional to con- recent, State, Campbell, Reynoldson The most (Wyo.1987) 737 P.2d 1331 presented post-conviction-relief petition a Wyoming Supreme where was filed in the Court defender, public post-conviction-relief the case was petition. tried ini 1986 as Inef- defender, and, tially appealed by public fectiveness of trial counsel was considered and response lief, appointment re denied on the merits. totally unacceptable (Wyo.1988) insufficient An Foote v. 751 P.2d 884 Cal., ders v. State Wyoming Supreme filed in the Court in 1987 reh’g 18 L.Ed.2d denied 388 U.S. previously and was denied on first to the *6 S.Ct. 18 L.Ed.2d 1377 brief was untimely. by district court as Reversed leaving pursue post- filed the defendant to his court for determination was whether the de- pro proceeding conviction-relief se. layed appeal county from court to district court remaining following: six cases reflect the by was excused the ineffectiveness of counsel in State, (Wyo.1986) Frias v. 722 P.2d 135 was filed delayed filing. Wyoming Supreme in the Court in 1985 as in case, Cutbirth, The last was volving by representatives a case tried of the initially Wyoming Supreme filed in the Court in public appealed by appel defender’s office and post-conviction-relief petition. 1986 on a Initial late counsel of that same office. This court public counsel was from the office of the de- found ineffectiveness of counsel and reversed fender, post-conviction different staff on relief acquit for retrial after which the defendant was presented appellate the issue of trial and ineffec- proceeding. ted on second Original appeal tiveness of counsel. had been State, Campbell (Wyo.1986) 728 P.2d 628 determined in 1983. Procedural forfeiture was Wyoming Supreme filed in the Court in 1986 applied response this court as a to the inef- following by representation trial of the office of substantively fectiveness of counsel contentions public appeal through defender and associa Cutbirth, post-conviction raised on relief. See Wyoming Program tion with the Defender Aid J., (Urbigkit, dissenting). 751 P.2d 1257 There University Wyoming. of the Failure to call appeal has not been one filed in this court since witnesses was determined not to have constitut January reaching stage of considera- ed ineffectiveness of counsel. This is the same tion this court where ineffectiveness of coun- post- case as noted above which came back on public sel has been asserted the office of the public conviction relief and the office of the (Urbigkit, Campbell, defender. 772 P.2d 543 Cf. defender disclaimed interest in the assistance to J., dissenting). their former client. 4. His frustration (Wyo.1987) distressingly Gist v. 737 P.2d 336 was level even more Wyoming Supreme preserved by aggravated filed in the Court in 1986 as recent conduct at the represented by public penitentiary defender’s office dur state while he serves this life sen- ing agency appealing trial and the section of that tence. Even the least deserve the appearance delivery handled the with reversal of the convic fair and even-handed justice. tion for ineffectiveness of trial counsel. front witnesses on the proof habitual criminal use& unetichal tactis [sic] [sic] Amin, sentence. 695 P.2d at 1021. In to deceive & sham a Farce defense. We contentions, appeal rejection first of these Valerie Amin & Abdula Amin asking this court said: appointed to be lawyers to present these appellant Counsel for at a motion hear- facts before the court and to be heard on ing opposed before trial the state’s mo- these constitutional violations in the in- tion to consolidate the Amin two cases justice. terest of argued for trial. Counsel several theo- Following response from the trial court support opposition ries in joint to a that his letter had been referred to the trial, did not but assert the marital testi- public (which defender provided office had privilege. monial representation), the trial again Amin wrote Id. at 1026. July requesting late file documentation No consideration of privilege the marital stating: given was otherwise except the decision I you wrote a month ago asking or so that this court concluded as a factual deci you if would direct get someone to me sion that her elicited testimony was “excul copies of all the statements & motions. patory, as to her both and her husband.” things There are still a few I need to Id. at 1026. Strangely enough, sim for a my “show case” inwhich I told [sic] reason, ilar the limitation of cross-examina the Public Defender didn’t have. I tion was also ratified.5 appreciate again you would would have July after issuance of the man- someone send me the rest of the informa- date following appeal this court in Feb- tion I need such as: ruary, Amin wrote a letter to the trial (1) Any my lawyer & all motions my or judge requesting appointment of an lawyer filed such as co-defendant[’]s attorney for assistance in particulars Bill discovery or newly evidence,” relief “due to discovered Amin Valarie statement [sic] following which included the statement: copies And all inwhich the DA filed [sic] allegations There are several other as evidence he would introduce. stemming from conspricy misconduct & part on the lawyers my defense Also I have prove evidence & be- [sic] knowingly who conspired person yond with a prejudicial a doubt that there was persons unknown to “shift the burden errors I made and need to show this complete 5. The joinder record from first is not tion was that there the would not present in this court for consideration in this jury’s create confusion in the mind that the post-conviction-relief appeal, but Amin’s brief as same witnesses would be called for both and filed in that case stated: testimony their would be the same. Appel- At the time the district court ordered Therefore, judicial economy, request lant's trial consolidated with Valerie Amin’s *7 was made. trial, Appellant objected noting that difficul- appeared opposed Counsel for Amin and likely ties were to arise because of the defen- variety the motion. While a of theories were dant’s marital status. The district court re- propounded support opposition, to the coun- jected Appellant’s position "specious.” Appellant sel for did not assert the marital ****** privilege. testimonial husband, against Valerie Amin testified her testimony specific provided In the face of the Appellant, objected at his criminal trial. He statute, participants failure of all to rec- testimony. Clearly, to the then it was error ognize functionality immunity of the statute permit joinder for the trial court to and allow incomprehensibility. borders against Appellant evidence to be admitted in No husband or wife shall be a witness 1-12-104, violation of § W.S.1977. [Immuni- against except proceed- the other in criminal ty statute for husbands and wives as witnesses ings against for a crime committed one against each other.] other, proceeding by or in a civil action or responded appeal: The State in brief in that first against They may one the other. in all civil hearing A was had on the State’s motion to and criminal oth- cases witnesses each consolidate the matters of Valerie Amin and though er the same as the marital relation did prior Amin Abdula to trial. Mrs. Amin’s joinder. not exist. counsel did not contest the expressed by The basis support the State in of consolida- W.S. 1-12-104. get trial,

evidence to the court. How can I and that a direct has been post shown to the court reviewed. These are this evidence without conviction attorney to matters that he the assistance an see these can raise. He has brought these issues to the court. I facts? sus- pect somebody that I could send out to lawyer I need see this evidence him, visit with but that means that we damaging so it that was violated every have to do would it with case un- my rights beyond & both Valarie [sic] der the circumstances and start some doubt. post procedure, kind of conviction and we appreicate you I would could [sic] that, equipped are not to do either time get me I need to do to advise what be- financially, wise or and we don’t have fore the court of law with this evidence. people every spurious to raise issue un- papers And I this information need & circumstances, der the Your Honor. for, again I I apprei- motions ask would your help concerning cate this mat- Amin petition then filed a handwritten [sic] [Emphasis original.] ter. relief which stated due-process equal-protec- “[d]enial response This time the trial court’s “gross-misrepresenta- tion of the law” and acknowledging the letter was: tion and ineffective assistance I attorney’s have asked the district of- withholding prove evidence defense.” fice to set this as a motion to be heard attachment, As detailed Friday, August before the Court on 2nd. of counsel contentions included: letter, copy your my reply, A * * * Attorneys failed to act com- being forwarded to both the district at- petently zealously by; torney public and the defender’s office. preparing handleing 1. Not [sic] hearing, At that the director of the office adequately. evidence public of the defender to the stated trial By neglect handling legal 2. evi- court, analyzed as he submitted dence entrusted to them. by Amin: By handling 3. not the evidence with- asking He is now for the appointment law, in the by suppressing bounds of the attorney of an to assist him. He makes allowing important material and evi- upon attorneys an attack that have * * * suppressed dence to be that would him, represented and indicates that there gathered the truth. [have] problem is some kind of between the By acting 4. in the interest best prosecutor’s office and defense counsel defendants, handling of the evidence Basically, the case. he attacks —al- against charges to defend ludes to ineffective assistance of counsel. State. per- He states that an officer committed lawyers knowing- 5. The concealed or jury; that another officer infor- withheld ly to disclose statements and evi- failfed] alleges mation and evidence. He miscon- required by dence law to reveal. And conspiracy duct or attorneys between the intentionally proce- violated rule of persons on the defense and unknown dure of evidence. proof. shift the burden of That the trial Suppressed evidence to the defen- basically asking was a farce. He is now against legal obligation dants his to re- lawyer pick up for another and deal produce. veal or with his case. The results to the defendants deni- *8 only provisions of, that I’m aware equal-protection al of of the due- law and court, proceed by way to in either a process. corpus challenging writ of habeas the jurisdictional involved, by pe- issues or By support motion and memorandum in post dismissal, tition for conviction relief under the judicata in addition to res my issues, statute. I don’t prior know that office is the State contended those, obligated light to file either of in petition that “the in this case coun- claims however, participated Again, of the fact we in that the sel was ineffective. noth- support allegations post-conviction petition the In our ing is submitted to it is response petition.” alleged in To which Amin’s “gross-misrepresentation” the on the made: part public my of both the in defender Petitioners, private appointed Abdula K. now the behalf counsel in Comes Y. Amin and on behalf Valarie behalf of Valarie’s We have said [sic] [sic]. of law Amin to this honorable Court they incompetant were ineffective and seeking grant this court humbly that part suppression and were a of the [sic] post-convic- this motion to amend their of evidence. tion motion. request ap- For these reasons we the The Petitioners named as who will be pointment private represent counsel to action, being elo- Petitioners this i[n] petition. ús in our behalf quent nor learned the law ask this request We would also that we have grant court to this motion on behalf and opportunity the to confer and meet with law, in the interest of the inwhich [sic] attorney attorneys repre- the who will the Petitioners claimed before ha[ve] sent us. rights having as their constitutional law Also on behalf of Valarie Amin [sic] violated. requesting “jointer petition” we[’]re [sic] Petitioners also state and stand firm as represented by and that we coun- both be attorney general[’]s to the motion to dis- sel. petitioners miss that didn’t attach pray you’ll necessary We find it affidavits, supporting records or other requests]. accomadate us on these [sic] evidence, given state that reason was petitions why supporting these weren’t comprehensive carefully A detailed attached, Pg see 4-5 that all this infor- petition amended was filed new counsel surpressed mation had and is even [sic] appointed by order of March which However, until this date. Petitioners do case, of the reviewed detail the facts supporting have some of these facts and insufficiency of counsel defenses and the claims and will enclose them now and initially present failure to the marital testi- will ask that this court amend these privilege by monial statement: along post-conviction petition. with Also hearing opposing At the motion supporting there will be letter from [a] joinder, Mr. Amin’s state’s motion for lawyers one of the trial inwhich [sic] argued sup- various theories papers, seek trying Petitioner is still port opposition joint of a trial. statements, police reports and have been * * * However, pointed out in the trying get papers these since convic- Supreme opinion opinion in its Court tion and has been unable to obtain appeal, Mr. counsel did not assert Amin’s trial-lawyers, them the law- Al- privilege. the marital testimonial yer attomey[’]s and the district office to appear though technically does not original.] [Emphasis this date. privilege precisely the marital then On March counsel was raised, petitioner’s discuss counsel does request appointed first in answer to Amin’s problems anticipates would oc- which he request for reconsidera- as followed cur if Mrs. Amin testifies. Amin, appointment of counsel tion on However, had the marital testimonial stated: which asserted, privilege clearly the trial been reviewing your ap- After order for the faced with court would have been public pointment representation by being permit- of Mrs. Amin not dilemma behalf, my defender on has led me to ask privilege testify ted to due to the marital private you appointment for the coun- right to having the but at the same time sel due to what I deem to be a conflict of testify on her own behalf. following reasons I interest. For the prej- This in detail the enumerated inappropiate feel it would be [sic] of Valerie udice to Amin from the evidence appoint anyone other than the assistance Amin, and concluded: private counsel. *9 Thus, post-conviction our relief statues is limit prejudiced Mr. Amin was the or ed to a determination of whether not arguing, privilege marital as a lack of right denied the Certainly, the defendant was be joinder. to defeat means counsel, represented by done, have witness jury the would have this had been opportunity pre have a fair es and to shakey the identifi- faced with been [sic] Morgan pare present his defense. Amin’s cation Mr. Whitehead Mr. Wyo., P.2d 1244-1245 im- testimony of occurred. The what (1985).[7] regarding Amin the peachment of Mrs. regard gun implication Mr. Amin’s argued analysis, In issue the State that six occurred. Cer- to that would have issues raised Amin were considered on changes given a tainly, these would have appeal: direct of a favorable outcome for probability argue privilege “Failure to marital 1. Amin. Mr. joinder defeat denies due as means to process, equal protection and effective Further enumeration failure of dire to assistance council included voir [sic].” contentions raising makeup of reported, the racial be “Impeachment of Amin 2. Valerie black, jurors since Amin was and also prejudicial improper and was to Mr. was non-testimony: his counseled Amin, among rights, denying him other process of law.” Amin counselled Petitioner Abdula attorney to not take the witness by his open-ended of Mr. 3. “The search the facts of the testify stand and about Amin’s vehicle violated his Fourth charge aggravated robbery because he rights.” Amendment questions prior his might be asked about effectively 4. “Counsel’s failure to ruin his criminal record and this would deprived pe- cross-examine Valerie Amin crimi- appealing chances of habitual right titioner of his constitutional to con- nal conviction. front witnesses.” raised 5. “Lack of identification habitual Additional ineffectiveness issues process phase court's re- criminal violates due con- included fallout from the trial of his frontation.” striction of Amin’s cross-examination argument mitigation and lack of wife During hearing appellant’s 6. of the life sen- mercy in assessment criminal, status a habitual he was pray- status. tence for habitual criminal right confront denied his constitutional er, petition asked for an evi- the amended against witnesses him. hearing.6 dentiary following analysis argued that the oth- The Amin original to the er nine issues raised could have As a continued defense brought in the initial Sub- petitions for been and amended relief, prem provided for the fail- memorandum of the State stantive review was Hopkinson reported, ex rel. ure to voir dire denied evi- State objection ised have Court, County, Teton improper identification to then v. District dence and cert. denied (Wyo.), 106 conclude: analysis: 5.Ct. 88 L.Ed.2d 155 Furthermore, it must be noted that the requests Petitioner is for a of a fair trial must be relief that substance Murray” to released from his missing post-conviction relief is “Mr. before Hopkinson in the ex “unconstitutional” confinement available. State re[l]. Court, County, Wyo., Penitentiary. It is diffi- District Teton Wyoming why Petitioner is ask- inquiry under cult to understand P.2d 64-65 challenge pleading, has been described in national In further was made and 7. This attitude of standards of conduct literature in discussion counsel for Amin in first denied defending expected counsel as to to be to he a member of the office of the came sufficiency body standing there thresh- "warm attorney general by post-conviction- time of that does not meet old.” The "assistance” petition. relief is favored with this criteria is when the accused only lawyer. gone, dead or disbarred *10 If, ing particular riage for that relief. justice may how- of and not be enter- ever, actually desiring in Petitioner his raising tained as a for appeal- substitute relief, he has not set forth er- own Id. [Emphasis able issues.” original.] in magnitude the rors of constitutional nec- then, And in analysis: substantive essary to effectuate that end. arguments The first six by Ap- raised (none In further filed brief on behalf pellant concern effective assistance of Amin), State, apparently of the at the re- If counsel. for some reason the court court, quest substantively of the trial ad- questions determines these should be ad- privilege. the marital dressed merits, Appellant’s dressed on their claim There was no discussion that ineffective- for relief must fail because he was af- ness of trial counsel had to be raised in forded effective assistance of counsel. appeal procedural first or was waived as a The Wyoming standard used the default from initial motion to final brief. Supreme Court is one of reasonableness. enveloped then in As trial court order: This court now misidentifies the what being brought MATTER THIS before trial court did disposi- a three-sentence upon Respondent’s the court motion to tion: petition dismiss the post-conviction for The issues Amin in raises his amended relief, and, petition carefully phrased in terms of having argument, THE COURT heard infirmities, constitutional based on a record, fully considering and the finds theme of ineffective assistance of trial petition that the should be dismissed for counsel. carefully The district court re- Respondent’s, the reasons stated in August 20, viewed each of them in its and, Wyoming’s, of memorandum 1987, hearing, then and denied the IT THEREFORE IS ORDERED that petition amended because the issues it be, is, petition hereby the should procedurally raises are Wy- barred under post-conviction dismissed and that the re- * * * oming agree law. We with that prayed petition be, lief in for determination. is, hereby denied. mistake, In first of trial statement Clearly, post-conviction-relief in brief as denial simply court on a basis of waiver quoted by majority of this court in order, not pleading validated or facts in present opinion, specific six trial issues of simply this record. The trial court did not ineffective assistance of counsel are raised State, a Cutbirth v. apply 751 P.2d 1257 which had not decided on the merits in been (Wyo.1988)waiver since that case had not initial The State had characterized yet theory proce- been decided and the post-conviction these issues for relief: deny dural default to consideration of inef- six issues concern first ineffective counsel, fectiveness of trial if not raised in assistance of counsel and last issue appeal, lights yet initial had not seen the post-conviction concerns the denial of the night Wyoming appellate criminal law petition. relief The first three issues adjudication. appeal; were raised on direct the next directly More de- controversial three could have raised. None been have justification nial is that “Amin did not raise merit. assistance of ineffective provide statutes Obviously, petition.” as an issue his substantial denials claims con places charge a direct of ineffectiveness rights stitutional at the trial level. How present preparation appellate counsel ever, remedy permit does not re “[t]he from the presentation view of error which could or should have post-convic- denying order appeal.” Hog brought by been direct tion relief. gatt Wyo., “Post-conviction relief decided March Cutbirth was granted only extraordinary February circum Amin’s brief was filed strongly suggest 24. We stances which a miscar- and the State followed on March adjudicative system processes only uphold a restructured legitimacy have everything enunciated after had occurred system normally but is easier both *11 except filing by in this case brief disposition faster. Procedural contrarily The State. State’s counsel chose not to produce magnified often confusion and ex- ignoring address the thesis of trial counsel proceedings. tended point, As a case in I by placing mistake blame on will examine the waiver-forfeiture law of ap- counsel for failure to include in initial system Illinois from majority which peal subject procedur- as the of waiver and approv- establishes the decision to cite with ineffectiveness, by al default inaction or al.8 mistake of counsel. Now this we have law, protocol The principle of Illinois as a assessing court waiver and forfeiture precedent path for the inadvisable now cho against present appellate counsel based on appeal applied sen this court on first a rule of law of this court that did not even cases, in waiver ineffectiveness is illustrat exist when brief was written. See dis- ed this court’s most recent in citation regard procedural default, in cussion L. — majority opinion Reed, of Harris v. Yackle, Postconviction Remedies 85 at § U.S. -, 1038, 109 S.Ct. 103 L.Ed.2d 308 (1988 Supp.). 185 Cum. See also Osborn v. (1989). Illinois in pos started a different (10th Cir.1988). Shillinger, 861 F.2d 612 principal ture as the waiver from state a might Unless it be surmised that Cut- history case days, derived in earlier then legitimate ancestry birth has some unrelated present seeped procedural decision is not in questions, by exception the bill of as the illegitimacy requiring in ineffectiveness to People mode. Dolgin, Ill.2d procedurally processed appeal, in initial 109, (1955). 126 N.E.2d 681 challenged I am forcefully examine the precedent state of the national within liter- Differing Illinois, Wyoming from does ally subject thousands of cases on the con- not a procedural history have state of a sequently available. requirement for the address of ineffective ness of counsel in first Since the Wyoming adjudication What we do in thesis and denial as was created a new only no in expeditious adjudi- makes sense cation, principle adjudication of the state in support example but lacks in Cut from birth, 1257, precedent in the decision jurisdictions available other in came Summarily, recognition briefing this nation. in after trial and in this case. The doing things apparent purpose the fastest method for procedural is to bar and it, just do disposition legal substantive in majority ineffectiveness cases is to Illinois, relationship peared 8. The ability whatever its to him to be the of law officers to waiver-forfeiture on ineffectiveness cases prevent of the State of Illinois to most hear be, might early jurisdiction was an to enact the ings procedure, on technicalities of Mr. Jus post-conviction remedy generally statute and is Rutledge tice attributed the confusion to what considered to be the model from which the "procedural he characterized as a morass." Wyoming subsequently law was taken. See situation he described as (Wyo.), 755 P.2d 245 cert. Sanchez denied merry-go-round corpus, "the Illinois of habeas — U.S. -, 161, 109 S.Ct. 102 L.Ed.2d nobis, coram and writ of error." [Marino J., (1988) (Urbigkit, dissenting) and Cut- 561, 570, Ragen,] 332 U.S. 68 S.Ct. birth, J., (Urbigkit, dissenting). 751 P.2d 1257 (and urged L.Ed. [92 170] He he was history part of the Illinois statute as in joined by Douglas Mr. Justice and the late Mr. Jenner, related The Illinois Post-Conviction Murphy) sitting Justice that the federal courts Act, Hearing (1950), thought- 9 F.R.D. accept jurisdiction in Illinois of all habeas provoking today discussing Ragen, (1947): in Marino v. petitions corpus ground prac on the a that as 332 U.S. 68 S.Ct. 92 L.Ed. 170 adequate remedy tical matter there was no It was in this case that the late Mr. Justice [Emphasis original.] Illinois. Rutledge concurring opinion in his delivered People Slaughter, See also Ill.2d scathing a denunciation of Illinois law which N.E.2d 566 There is an admirable but activity looking accelerated the toward re unlearned, apparently Wyoming; lesson here for form. He observed that no one seemed to be but, see, history yet repeated as we shall to be sure what remedies were available in Illinois varying duplicated Wyo from Illinois and now to be in the circumstances of denial due process commenting ap- ming. of law. on what (N.D.Ill.1985). is F.Supp. Two broad in the federal reconsideration foreclose dispo carried forward since sues have been in this by denial of consideration courts generically the first sition of moral the intent lack Not does court. of trial counsel called ineffectiveness pursuit also misses validity, istic hut newly evidence. The federal discovered justification. See John required historical — granted fifteen-page opinion, judge, U.S. -, Mississippi, 108 S.Ct. son v. judgment part, except as to summary Henry L.Ed.2d 575 of counsel claim the ineffective assistance Miss., 443, 447, 85 S.Ct. v. State of Harris, hearing. evidentiary an and set reh’g denied 13 L.Ed.2d judge, in F.Supp. The federal 13 L.Ed.2d *12 had that the state courts opinion, her found Columbia, City and Barr v. of the ineffectiveness considered the merits L.Ed. 84 S.Ct. U.S. process post-conviction-relief in the claims procedur not a state This is 2d 766 possible of failure conjunctive to a waiver strictly regularly has been al bar which Harris, include in the initial to contempo in since first created followed F.Supp. at 1376. She also noted one Cutbirth, in rary adjudication Illinois law: exceptions found in waiver briefing. prior 1257 without in the for the claim is not found “Basis then, by adopted Using Illinois law as see, later record.” Id. at 1377. As we will postural majority in citation of Harris as a in exceptions this is one of the six such decision, we Amin justification for this Illinois law. selected as a has been need to review what merits, a three- Proceeding then on the In law. no con- Wyoming role model judge federal hearing held and the day was suffi- find a less ception could this court the claim of proceeding the on determined cient, process emburdened more confused trial counsel to lack ineffectiveness of 1977 by attempt to avoid substantive adaptation Har a substantive decision. validity as procedural disclaimer disposition by issue Cir.1987), Reed, 822 F.2d 684 (7th ris v. Harris takes ineffectiveness cases. — -, part granted cert. in U.S. stage in examination. center judg (1988), L.Ed.2d 268 S.Ct. an Illinois in 1977 with That case started — -, reversed ment of Harris for mur- state court conviction (1989). Appeal was L.Ed.2d 308 trial represented at der. Harris had been and, with one appeals taken to the court appeal by the and on by public defender the the dismis dissent, affirmed that tribunal issues public defender with stated assistant merits, “since we reaching the sal without of the evidence. sufficiency questioning excuse did not that the state court conclude by order without was affirmed Conviction issue.” Id. at procedural default at the and, year, in same a in the opinion concurrence, dem Judge Cudahy, 685. filed petition was post-conviction-relief extraordinary perceptiveness: onstrated an essence, pending this one which, remains my indicate only to separately I write office public The defender’s decade later. assistance the ineffective view that and another permitted to withdraw was not be treated claim should Hearings were appointed. attorney was notes, Illi- the majority As the waived. and trial court both by held the express no made Appellate nois Court denied testimony. Relief was 1981 without had been the claim determination appeal with- on the result was affirmed court considered The Illinois waived. intrinsic issue opinion 1983. out than at- merits. Rather claim on its original trial the ineffectiveness unspoken “intent” tempting to define witnesses. present to alibi counsel in failure a court, invoke I think we should clearly federal court that waiver Harris presumption came to the Waiver, par- corpus condoned. found has been for a writ of habeas assistance ineffective ticularly of an to met with under 28 U.S.C. § essentially appeal, is an direct claim on summary judgment. responsive motion for avoiding very diffi- Reed, ground for technical Harris v. ex rel. United States cult, very important very merits, close is- ness claim the as it had been Certainly on the merits. it is sues within considered on the merits federal protect power the state courts’ their to district court as it had found been requirements merely procedural by mak- have been considered on the merits express findings ing petitioner that a has twelve-year state courts. This course waived. litigation has evolved from the state and jurisdiction with

Judge struggled strongest ap- Getzendanner with bent important ply procedural and difficult issues default to ineffectiveness here and, cases, hearing lasting after a if not days, ap- three first considered initial petition. Although peal. denied matter very close, support I would her deter- Recalling to Judge attention that Federal thereby mination and reach the same re- excep- Getzendanner considered the merits majority as the a sult but different preclusion tion to the rule not be deter- route. non-supplemented record, from the minable

Id. at necessary pursue it is model for role adjudication that, Wyoming recognition Supreme accept- United Court States degree, ap- to some all ed certiorari reversed the court of Illinois ineffectiveness *13 Harris, claim peals Requiring inevitably 109 S.Ct. 1038. cases considered on the explicit at application the state court to be in its reliance merits to least exclude of one default, procedural exceptions (or eight) on States of the Illinois United six that plain Supreme Court reiterated its state- exist. Michigan Long, ment criteria of v. exceptions (1) six Those are: not deter 1032, 3469, 103 S.Ct. L.Ed.2d 77 1201 from the minable record—extrinsic evi (1983): required disposition. dence for proper Applying “plain statement” re- Harris, 1038; Gaines, 109 People S.Ct. v. case, quirement this we conclude that 79, 269, 105 Ill.2d 85 Ill.Dec. 473 N.E.2d Appellate the Illinois did Court not (1984), 1131, 868 cert. denied 471 U.S. 105 “clearly expressly” rely on waiver as 2666, (1985); 86 People S.Ct. L.Ed.2d 282 v. ground rejecting aspect peti- for of a 153, Stepheny, 46 Ill.2d 263 N.E.2d 83 tioner’s ineffective-assistance-of-counsel (1970). People Somerville, v. 42 Ill.2d Cf. U.S., Michigan claim. v. 463 Long, at 1, (1969). (2) 245 461 N.E.2d Fundamental 1041, S.Ct., sure, 103 at 3476. To requires fairness to the defendant evalua perhaps court state laid the foundation legal tion provided service related holding stating such a that most presented. to trial issue People v. Alba petitioner’s allegations of “could have nese, 100, 838, Ill.2d 125 125 531 Ill.Dec. appeal.” App. been raised direct 12. [on] (1988); Cihlar, People N.E.2d 17 111 v. Nonetheless, Appeals of as the Court 212, 297, 95 Ill.2d Ill.Dec. 859 489 N.E.2d recognized, this falls short statement of (1986); People Burns, 282, v. 75 26 Ill.2d explicit a reliance on an state-law 679, (1979); People Ill.Dec. 388 N.E.2d 394 ground. Accordingly, this reference to 246, 42 Spicer, Ill.App.3d v. 711 355 N.E.2d precluded law would not our state have (1976); People 69, Mamolella, v. 42 Ill.2d addressing petitioner’s had claim (1969); Somerville, 245 485 N.E.2d 245 arisen direct review. As is now estab- 461; 402, People Ashley, N.E.2d v. 34 Ill.2d lished, preclude it also does not habeas (1966); 216 126 People Hamby, N.E.2d v. by the District Court. review 291, (1965). (3) 32 205 Ill.2d N.E.2d 456 judgment Appeals of the Court incom Failure of counsel due to reversed and the case is remanded for petency prior either in or initial proceedings further consistent with this post-conviction-proceeding appeal to raise opinion. prior People counsel. v. ineffectiveness

Harris, (footnote 109 S.Ct. at 1045 omit- 1063, 555, Carroll, Ill.App.3d 45 4 Ill.Dec. ted). Chandler, (1977); People 360 491 N.E.2d Consequently, 1067, 608, Ill.App.3d the case back to 44 3 N.E. went Ill.Dec. 358 appeals (1976); Buckholz, to consider the ineffective- 24 People court 2d 1293

6X1 324, (1974); Peo N.E.2d 421 Ill.App.3d argue 320 his own incompetency.”10 Frank, 500, Gaines, ple v. 276, 48 Ill.2d 272 N.E.2d 25 85 Ill.Dec. at 473 N.E.2d at (4) (1971); Hamby, 205 N.E.2d 456. Fail 875. or introduce essential

ure to call witnesses function, generic process required This is an off-shoot of the funda evidence. generalized for elimination of all six excep- Somerville, exception. mental fairness requires tions consideration of the merits. 461; Ashley, 245 N.E.2d 216 N.E.2d 126. This realistically consideration then pre- plea. People Owsley, (5) Misadvised 66 cludes insulation from federal court habeas 234, 795, Ill.App.3d 22 N.E.2d Ill.Dec. Harris, corpus as witness. 109 S.Ct. 1038. interest, Conflict of same scope many suggests these cases attorney agency or as at trial. preclusion disposition that apparently gets Contemplation you argue your that do started with some anxiety undefined Question syndrome. pri own mistake avoidance is following better than the ra- Unit agency attorneys. attorney vate tional rule claims DeRobertis, ed ex rel. Devine v. States procedurally should be resolved on the mer- (7th Cir.1985)9; Gaines, F.2d 764 85 Ill. post-conviction review, its at one-time 875; Somerville, 276, Dec. at N.E.2d at trial, motion for new or writ People, 461; Ciucci v. N.E.2d Ill.2d corpus finality habeas with and on the sub- (1960), cert. denied 171 N.E.2d stance of the claim.11 U.S. 81 S.Ct. 6 L.Ed.2d 1245 litany All of “It would be unreasonable to ex demonstrates in distinc- pect appellate convincingly majority’s counsel to raise tion to the citation of Harris (1986), Again, by Judge Cudahy in statement in dis- 501 N.E.2d 111 cert. denied 481 U.S. sent: reh’g 95 L.Ed.2d de respectfully I dissent. Devine’s ineffective nied S.Ct. 95 L.Ed.2d merit, may may Neal, assistance claim not have People 111 Ill.2d *14 I but have no reason to believe it has been 283, (1985), Ill.Dec. N.E.2d 489 845 cert. denied waived. 1165, 2292, 733, 106 S.Ct. 90 L.Ed.2d appeal, The record shows that on his initial 877, 257, reh’g denied 479 U.S. 107 S.Ct. 93 represented by Devine was counsel from the (1986). recognize L.Ed.2d 182 To cases of the represented same firm that him at trial. category, second we consider the fundamental may procedural Whatever have been the de- subsequent post-convic fairness evaluation for courts, identity terminations of the state that Foster, proceedings: People tion-relief v. 178 Ill. appellate —of record —of trial and counsel 1009, 140, App.3d Ill.Dec. 128 534 N.E.2d 160 alleged sufficient "cause” to overlook the state (1989) Free, 367, People and v. 122 Ill.2d 119 comity requires No default. doctrine of — 325, 1184, Ill.Dec. U.S. -, 522 N.E.2d cert. denied federal courts to defer to state court determi- 190, 159, reh’g 109 S.Ct. 102 L.Ed.2d nations which are in conflict with the facts of — U.S. -, 522, denied 109 S.Ct. 102 L.Ed.2d lawyer expected record. No (1988). Goodpaster, 555 See The Trial for Life: jurisprudence argue either state or federal Penalty Assistance Counsel in Death Effective incompetence or his own his firm's at trial as Cases, 58 N.Y.U.L.Rev. 299 ground appeal. Hence I do not believe Devine’s ineffective- 11.Commonly couple cited are more doz than a ness of trial counsel claim has been waived. Caballero, en Illinois cases which include: 128 It should have been considered the district 1, (ineffectiveness Ill.Dec. 533 N.E.2d 1089 court on the merits. Devine, (footnotes omitted). appellate trial 754 F.2d at 768-69 counsel considered on the post-conviction-relief appeal merits in which My place careful effort to each Illinois case evidentiary hearing remanded on effec categories where waiver was waived into the six Albanese, case); tiveness in death Ill. 125 suggests exceptions may two other which be 838, (death Dec. 531 N.E.2d case considered 17 under-enunciated fundamental fairness deci Jones, merits); Ill.App.3d People on its v. 174 sions. These additional class of cases are death 794, 349, (1988) (inef 124 Ill.Dec. N.E.2d 529 66 penalties group in broad and another that fits post-conviction-relief as a issue fectiveness nothing may just be considered as "whatev subject guilty plea raised after as a considered proceedings” er reason criminal where ineffec merits); Bernardo, People Ill.App. on its v. 171 tiveness contentions are considered on the mer 652, 550, 3d 121 Ill.Dec. 525 N.E.2d 857 any specific its without consideration of waiver. (waiver Caballero, not considered in determination of inef People death The cases include: v. 248, 1, incompetency fectiveness claim of of the attor Ill.2d 126 128 Ill.Dec. 533 N.E.2d 1089 merits); Albanese, 838, (1989); ney People as resolution v. N.E.2d on the 125 Ill.Dec. 531 17; Kubat, 424, Jones, 925, People Ill.App.3d v. 114 Ill.2d Ill.Dec. 103 168 119 Ill.Dec.

612 ter, essentially every Illinois, that case in 1009, Ill.App.3d 178 140, 128 Ill.Dec. People Avitia, (1989); v. 534 necessary became N.E.2d 160 sys- the state court Ill.App.3d 968, 178 70, 128 give Ill.Dec. 533 tem to some consideration to either or People Caballero, (1989); v. N.E.2d 1158 underlying both the occurrence from which 248, 1, 126 Ill.2d 128 Ill.Dec. 533 N.E.2d the ineffectiveness is claimed or the con- People Free, v. 1089 122 Ill.2d attorney duct of the process itself as a 367, 325, cert. 119 Ill.Dec. 1184, 522 N.E.2d disposition post-conviction-relief of the in- — denied -, 190, U.S. 109 S.Ct. 102 quiry. By the nature exceptions, — 159, reh’g denied L.Ed.2d -, consideration on the irretrievably merits is 522, L.Ed.2d 555 An required to exclude for the court to then Iowa court well states a summarization proceed apply pretexted procedural de- that can most explicitly applied to Illi fault. nois case law: clearly This is demonstrated the more We are not completely satisfied that recent cases which include People v. Fos- the defendant has demonstrated suffi- 1325, (1988) (dismissed 522 N.E.2d (on merits, 360 N.E.2d 491 appellate counsel merits): hearing remanded for patently its clearly not ned, wrong); People v. Pan Ill.App.3d petitioner State contends that Ill.Dec. has 358 N.E.2d (1977) (effectiveness arguments by failing waived his during ever, issue to raise determined on them prior the question); Chandler, merits in appeal. his trial decision and on direct as How identification given petitioner alleged has Ill.Dec. ineffec 358 N.E.2d (on merits, counsel, argument appellate tive no assistance of error of coun Buckholz, legal presented); sel on arguments he issue attorney waived the his 320 N.E.2d (incompetency failed to raise at trial is not tenable. More waived over, pro Frank, appeal); (on since se issues which have a factual basis in N.E.2d 25 merits, appellate patently the record appeal. wrong be raised on counsel not direct (1980), (People on failure appeal); to raise the Ill.App.3d Edwards issue on first Stepheny, (record 771.) 38 Ill.Dec. 263 N.E.2d 83 allega 403 N.E.2d sufficient to preclude brings incompetence); James, People tions peti Jones in his (1970) (fundamental Ill.2d tion could 263 N.E.2d 5 appeal, not have been raised on fair as record, they implicated ness not not found in the choice as to and there manner of Mamolella, sentencing); (con fore he cannot be deemed to 245 N.E.2d 485 have waived ground lacking sidered on these issues on that he merit and did not funda require mental fairness raise them in his did not relaxation of Kubat, waiver); Somerville, (evidence (death 103 Ill.Dec. 245 N.E.2d 501 N.E.2d 111 merits; merits); on the James, case face of the People considered on its record on the funda violated); Collins, mental People 111 Ill.2d fairness not 95 Ill.Dec. 489 N.E.2d 1350 (1986) (considered (1968) (no application 39 Ill.2d changed 235 N.E.2d 570 evi law *15 original by dence outside of presented, the decisions determination on the record merits hearing affirmed); post-conviction of an denial of ineffective issue for on the relief. merits Ash Remedy ley, (review denied with 216 N.E.2d the conclusion that 126 on no the merits on right appeal appellate constitutional counsel existed determine that fundamental fairness relief); Cihlar, for "Adequate appraisal is not violated. 95 Ill.Dec. of the mer 297, (fundamental petitioner’s argument 489 N.E.2d 859 fairness its of only ex can be made perjury waived); amination when history claimed is not the context of post-con the entire Gaines, 269, (in Id., recog 85 Ill.Dec. proceedings.” 127); 473 N.E.2d 868 viction 216 N.E.2d at the.principles nition of both Hamby, (fundamental of sufficient record 205 N.E.2d 456 fairness court, justice, supreme and fundamental required on rule consideration on the merits with issues, the merits of prejudice); found no application judicata); out Dolgin, res 126 Churchill, People 1006, Ill.App.3d (waiver v. 92 48 by private Ill. N.E.2d attorney, 681 entire 364, (1981) (no Dec. 416 available). however, N.E.2d 395 evidence of record was See United negligent attorney presented); Thieret, conduct of the States ex F.Supp. rel. Redd v. 692 904 Killion, 862, People 448, Ill.App.3d (N.D.Ill.1988), v. 76 32 Ill.Dec. remedy which found state ex (consideration (1979) 395 N.E.2d 678 approved on appointment haustion and of an ex pert merits with inclusion of failure to include insanity witness on omitted state court de post-conviction. issue on and in fense. argument "[rjespondent's ”[D]o That court observed that rude, find indication of trial counsel’s incom wrong," is not it is also Id., 451, petency.” 32 Ill.Dec. at 395 N.E.2d at when the court concluded that the 681); Burns, 679, 26 Ill.Dec. 388 N.E.2d 394 U.S.C. § 28 2254 relief should be determined (fundamental required fairness on the merits prisoner without return of the state to state consideration, trial); Owsley, reversal and new post-conviction remedy consideration of a since 795, (misadvice 22 Ill.Dec. already 383 N.E.2d 271 that issue had been decided the state Carroll, 555, plea incompetency); 4 Ill.Dec. appeal. court the denied Id. at 905.

613 Lane, Lewis v. (7th dent failure to earlier case of reason his 832 F.2d 1446 — note, however, Cir.1987), raise his daims. We cert. denied -, 109 under doctrine and the both waiver (1988), 102 L.Ed.2d 59 S.Ct. the waived claim, ineffective assistance of counsel Thieret, waiver case of Henderson v. to determine if the defendant we have (7th Cir.1988), F.2d 492 reh’g denied reason, prejudiced. For that we will — (11/10/88), cert. denied U.S. -, review defendant’s claims. (1989) S.Ct. 104 L.Ed.2d 163 and the (Iowa v. Gavin 425 N.W.2d recently most reversed penalty pro death App.1988). Compare critique of Illinois re ceeding on an effectiveness issue in Kubat ex rel. Thomas v. United States view Thieret, v. (7th Cir.1989), 867 F.2d 351 (7th O’Leary, 856 F.2d Cir. reh’g denied (3/15/89). This Illinois histo 1988), (10/20/88). reh’g Harris, ry to then return to supplies star court de Nor was the federal otherwise evidence, tling proof, not conclusive ex rel. Sullivan v. United States terred in waiver and forfeiture attempted as an solu Fairman, (N.D.Ill.1983), F.Supp. tion of contended issues of ineffectiveness prisoner pursued federal habeas where of counsel attempted expe cases when com on trial court based ineffective, dite is expensive complicat appeal. Dis plaint after denied state court ing. approach, rule, This as the Illinois missal that tribunal resulted reversal composite within the of a broad course of ex United States rel. Sullivan exceptions singularly if any leaves little Fairman, (7th Cir.1984). 731 F.2d 450 A thing remaining within the initial rule. To hearing court federal district followed justice exceptions do to the forfeiture rule granted. ap the writ was court required; exceptions, with the rule ex peals reconsidered after another People See current cases: pires. which confirmed claimed ineffectiveness of Brown, Ill.App.3d 128 Ill.Dec. by affirming the decision of the People N.E.2d 66 required federal district court which a state Brothers, Ill.App.3d 128 Ill.Dec. court retrial. The issue of ineffectiveness 535 N.E.2d 45 v. Fair Sullivan was uncalled witnesses. Leaving anguished behind those difficul- man, (7th Cir.1987). 819 F.2d 1382 It is origin in Illinois state of ties intrinsic as the beyond argument obvious much time how relief, Wyoming post-conviction for the would have been if the ineffective saved apparent jurisdiction that no other ness issue had becomes realistically been addressed People court. See appears anywhere system the state with a that will Sullivan, Ill.App.3d logic 51 Ill.Dec. provide precedent persuasive corpus (1981), habeas 420 N.E.2d 474 Wyoming’s newly adopted forfei- justify granted (7th Cir.1987). 819 F.2d 1382 ture standard for ineffectiveness of counsel general appellate review. See review of The Sullivan case has some startling processes, post-conviction-relief state D. Wyoming resemblance to the course of liti Wilkes, Federal and State Postconviction gation, Osborn, 612; Osborn v. 861 F.2d A Appendix and Relief ch. 9 and Remedies Schillinger, F.Supp. (Wyo.1986); *16 Yackle, (2d Supp.1988) L. State, ed. 1987 & and Osborn v. (Wyo.1983), 672 P.2d 777 (1981 1051, 1331, Postconviction Remedies 13 at 65 & cert. denied 465 U.S. 104 S.Ct. § (1984). Supp.1988).12 79 L.Ed.2d 726 See also the death remedy right, ing obligations owed crimi If ever a has swallowed a the constitutional corpus right lawyers. habeas has swallowed the to ef- nal defendants their Bines, 2, fective assistance of counsel. For fear of lost supra n. 59 VaX.Rev. at 986-87. convictions, duty breaches of to indefensible proceeding A consistent collateral mechanism ignored, criminally accused have been in the federal ineffectiveness cases exists debased, right adversary to counsel and the 79, system. Kentucky, Batson v. 476 U.S. 106 system justice Throughout, undermined. 1712, (1986); United S.Ct. 90 L.Ed.2d 69 States practices the bar has been a silent observer Rantz, (10th Cir.1988), v. 862 F.2d 808 cert. professionals which if committed other — U.S. -, 1554, denied 109 S.Ct. 103 L.Ed.2d indignant litigation. produce would a host of Pogue, 226 857 United States v. 865 F.2d longer possible recogniz- But it is no to avoid 614 reference, clearly it preferable

In first is determin- litigated the claim be in postconviction State v. system proceedings, the federal forfeiture see able Williams, 248, (Iowa 285 N.W.2d right, 271 inquiry of the constitutional does denied, cert. 1979), 921, 446 U.S. 100 regardless not arise of whether ineffective- 1859, (1980), S.Ct. 64 L.Ed.2d espe 277 is appeal ness of counsel raised first cially attorney’s where the actions process principle after conviction. may explainable omissions be as a matter basically contrary normally is to the to of trial tactics or strategy, or where reviews, hearings direct that and decisions there is a need for additional evidence proceed- are to be determined collateral concerning lawyers what other would ings. presentation This is the usual first have done under similar circumstances. remedy collateral which includes essen- Schoelerman, State v. 67, 315 N.W.2d 71 tially many all federal courts and state State, See also Kane v. (Iowa 1982). 436 Virginia jurisdictions. Supreme The West (Iowa 1989); Gavin, N.W.2d 624 425 N.W. approach: Court states State, Cuevas v. 673; 2d 415 N.W.2d 630 prior expressed have in cases We concern Lamphere v. (Iowa 1987); 348 that claims of ineffective assistance of (Iowa 1984). 212 N.W.2d may inadequately developed system The California is approach a third and, therefore, appeal inappropriate which, variables, with some permits first subjects for direct review. utilization of the reversal issue on initial England, 548, 376 S.E.2d 559 appeal by or, motion for new trial alterna- White, See also Cole v. (W.Va.1988). 376 tively, in proceedings within (W.Va.1988). S.E.2d 599 People Pope, corpus its habeas action. similarly court Iowa directs: 412, 732, Cal.Rptr. 23 Cal.3d 152 590 P.2d People Fosselman, Ordinarily, ap- the record on a direct 859 33 peal adjudi- 572, is insufficient to us to Cal.Rptr. 855, allow Cal.3d 189 1144, (1983), cate a claim of 1149 ineffective assistance of that court stated: Coil, State v. counsel. N.W.2d Reviewing courts will reverse convic- (Iowa 1978). cases, In such ground it tions on inadequate coun- (10th Cir.1989); Virgin appellant Government opportunity prove Islands v. has a full facts Forte, (3rd Cir.1989) (28 counsel, F.2d establishing U.S.C. ineffectiveness of review); government § reversal of remand for Batson opportunity present has a full States, (8th Davis v. United contrary, 865 F.2d 164 Cir. evidence to the the district court 1988); States, spoken Ouellette v. United 862 F.2d print hears words we can see (1st Cir.1988); Yearwood, see, United States v. expressions and sees we will never and a (4th Cir.1988); Maynard, F.2d 6 bearing Robison v. precisely factual record on the issue (10th Cir.1987) (Oklahoma F.2d 1501 state court is created. If be taken from the dis proceeding). Pelletier, judgment, United States v. trict court’s an court Cf. (1st Cir.1988) (issue F.2d 1126 as not raised at precise decide on a record made issue. appeal, trial and not considered on first but Stephens, See also United States v. 609 F.2d 230 subject (5th Cir.1980); Prince, Sixth Amendment issue to consideration United States v. 456 F.2d post-conviction). (5th Cir.1972); See also United Ortega-Lira States v. v. United (11th Griffin, Cir.1983) States, (9th Cir.), 699 F.2d 406 F.2d 834 cert. denied 394 (preferable process pursuant to 28 U.S.C. 89 S.Ct. 22 L.Ed.2d 566 2255): Cronic, § United States v. 466 U.S. 667 n. Cf. preclude, unequivocally To and without ca n. 80 L.Ed.2d 657 vil, presentation of the issue following hearing, [ineffectiveness and on remand United States Cronic, (10th for the first Cir.1988) counsel] time on is not 839 F.2d 1401 deny opportunity MacCollom, the convicted an United States v. present tion, deny presenta (1976) (where it. The rule does not pre S.Ct. 48 L.Ed.2d 666 Indeed, merely locates it. in the cases clusion disaffirmance of substantive decision above, repeatedly cited the Fifth Circuit has was not considered the United States Su Court). preju Curtis, said it affirmed the preme conviction without See also United States v. Cir.1984), right appellant (7th dice to the to raise the issue 742 F.2d 1070 rt. denied 475 ce *17 1064, 1374, proper of ineffective (1986); assistance of counsel in U.S. 106 S.Ct. 89 L.Ed.2d 600 him, proceedings Aulet, (2d available to on occasion United States v. 1980); 618 F.2d 182 Cir. specifying availability proceeding States, (6th of a Isble v. United 611 F.2d 173 2255, pursuant Prince, e.g., Cir.1979); States, to 28 U.S.C. § su and v. United 582 F.2d Proffitt pra, (4th Cir.1978). proceeding, 456 F.2d at 1071. In such a 854

615 appears rep- decision appeal affirma- stitution.” That if the record on sel weight authority of on this resent had no ra- that counsel tively discloses ruling point, and consider the sound. we omis- purpose for his act or tactical tional cases the conviction In all other Wilcoxon, sion. at 877. 15 S.E.2d Waiver rele- and the defendant affirmed will be adequate assistance of counsel did right to corpus proceedings at gated Wilkes, to habeas Postconviction Habeas apply. may record be A dehors the Corpus Georgia: Decade After which evidence Relief Act, basis, any, 249, Corpus the Habeas determine the 12 taken to Ga.L.Rev. (1978), statutory corpus, conduct or omission. habeas Ga. counsel’s 252 properly (Supp.1977), Ann. 50-127 Code § 168, Wright, 48 Cal.3d People also v. See contentions of ineffective assistance tests In (1989); 853, Cal.Rptr. 768 P.2d 72 255 counsel; Wilkes, A Role an New Cordero, 161, Cal.Rptr. 249 Re 46 Cal.3d Habeas Ancient Postconviction Writ: opinion mod (1988), 342, 1370 (Part I), Georgia Corpus 8 Ga.L. Relief Babbitt, People v. (9/15/88); 45 ified 313, (1974). Appeal waiver is not Rev. 360 660, 69, Cal.Rptr. 755 P.2d 253 248 Cal.3d 475, Hopper, 243 Ga. v. Williams created. opinion reh’g denied (1988), modified Ault, Moore v. (1979); 229 254 S.E.2d 854 — U.S. -, cert. denied (8/25/88), 109 (1972). Rich 616, 193 S.E.2d 813 Ga. Cf. 849, 102 L.Ed.2d 981 S.Ct. State, 113, ardson v. Ga.App. 189 375 S.E. jurisdictions rely on category A broad (1988), direct after denial of a 2d 59 decision about inef- the thesis that the first trial, post-conviction motion for new convic counsel should be made fectiveness of trial finding deficiency per tion reversed dependent on the trial court so that State, 187 Ga. trial; Brooks v. forma at consideration, mo- jurisdiction, remand for v. Zant 92, App. 369 S.E.2d 349 post-conviction-relief for new trial or tion Hamilton, 553, 307 S.E.2d 667 251 Ga. process utilized in proceedings will be the 989, (1983), 104 cert. denied S.Ct. developed. record is a factual order that (1984); and Zant v. 2371, 80 L.Ed.2d 843 court, Georgia impressing habeas (1982), Dick, 799, 294 S.E.2d 508 249 Ga. counsel, corpus examine effectiveness (11th 1448 corpus granted habeas 833 F.2d concludes: likewise, Louisiana: State Cir.1987). See that “if recognized the rule be [W]e Butler, 167 Busby rel. v. 538 So.2d ex neg- attorneys ignorant, are so appointed of re (La.1988), underlying purpose “the that the accused was ligent, or unfaithful counsel is to assistance of quiring effective or did not in virtually unrepresented, Pollard v. trial”; Missouri: ensure a fair the aid of sense have real or substantial State, (Mo.App.1988); and 752 S.W.2d 380 counsel, deprived of a funda- he be would State, 754 S.W.2d Vermilye v. Tennessee: if con- right, and mental constitutional (Tenn.Cr.App.1987). See also McCloud 82 complain that might successfully victed State, A.2d 151 Md.App. 551 v. process of law.” had denied due he been State, and Bonner v. (1989) 765 S.W.2d 634, 15 Aldredge, v. (Mo.App.1988). 192 Ga. S.E. Wilcoxon (quoting Williams (1941) 2d Columbia, present In the District 15 S.E.2d Ga. used process which Zerbst, Johnson (1941)). quoting In attacking mandate as motion to recall is a L.Ed. 1461 58 S.Ct. Watson performance. appellate counsel (1938), reiterated: that court States, granted reh’g A.2d United guar- 514 A.2d 800 judgment vacated purpose of the constitutional “The (D.C.App.1987), protect an reh’g right (1986), to counsel 536 A.2d anty of a — U.S. -, resulting from denied cert. accused from conviction v. Wil legal and consti- ignorance of his 100 L.Ed.2d his own Cf. liamson, 206 Conn. 539 A.2d rights, guaranty would tutional States, and Miller United that an by a determination be nullified Connecticut, (D.C.App.1984). claim his A.2d 862 ignorant failure to accused’s “ properly ‘more issues are protection of the Con- rights removes the *18 616

pursued in a motion for State, (1989); new trial or on a v. L.Ed.2d 596 535 Sandifer corpus of writ habeas than on 203 (Ala.Cr.App.1987); Delevie v. So.2d ” Williamson, appeal.’ direct 539 A.2d at State, 454 (Ala.Cr.App.1984); So.2d 1044 Barber, State v. (quoting 570 173 Conn. Williams, State v. (La. 535 So.2d 19 153, 154-55, (1977)). 376 A.2d 1108 App.1988). singularly logical explained rule is A derivative of these rules is found with Williamson, 539 (quoting A.2d at 571 the determinant as the proceeding first af Leecan, State v. 198 Conn. 504 ter a different attorney is first involved to 480, cert. denied 476 U.S. 1184, A.2d 106 sufficiency consider the predeces of his 2922, (1986)) 91 S.Ct. L.Ed.2d 550 as com Brooks, 369 S.E. legal performance. sor’s pared preclusion to the forfeiture Wyo State, 349; Carter v. 2d 528, 293 S.C. 362 ming: (1987). 20 S.E.2d A adjunct sepa further believe that his ineffective assist- “[W]e rates cases a consideration whether ser resolved, ance claim should be performed vices by private were counsel or piecemeal fashion, totality but as a after appointed public defender. v. Peo Griffin evidentiary an hearing in the trial court ple Illinois, the State 12, 76 attorney where the whose conduct is in 585, reh’g 891, S.Ct. 100 denied 351 L.Ed. question may opportunity have an to tes- 958, 844, U.S. 100 L.Ed. 1480 * * * tify.” Although the defendant however, (1956). See v. Kellogg, 263 otherwise, policy claims our supported is (Iowa 1978). N.W.2d 539 by the circumstances of this case. An Pennsylvania emphatic rule is most evidentiary hearing where the defen- stating that the ineffectiveness of attor- dant’s trial counsel can testify, for exam- ney allegation will not be considered for ple, why objections as to no were made denial on unless there is a clear and concerning alleged prison clothes or unrefutable evidence incompetency why he did not move to alleg- strike the Davis, that record. Com. v. face edly prejudicial answers from the state’s (1988); 518 Pa. 541 A.2d 315 Com. v. witness, rebuttal as well as other claims Morocco, Pa.Super. 367, 544 A.2d makes, necessary defendant is denied 520 Pa. 554 A.2d 508 evaluate the defendant’s ineffective as- (1988); Riggins, Com. v. Pa.Super. sistance claim. We decline to entertain (1988); Knapp, Com. v. 542 A.2d 1004 that claim this Pa.Super. (1988); 542 A.2d 546 Com. Florida also follows a substantive review Felder, Pa.Super. 370 A.2d 1214 posture ineffectiveness Cook, Com. v. Pa.Super. 283, State, Eutzy review. also 326 A.2d 461 See Com. v. State, (Fla.1988); Chambers v. So.2d 1014 Frey, 520 Pa. See 554 A.2d 27 (Fla.App.1988); 530 So.2d 452 Cave v. moreover, Ely, Com. v. Pa.Super. State, (Fla.1988); 529 So.2d 293 Harris v. J., (Rowley, 554 A.2d 118 dissenting). State, (Fla.1988); 528 So.2d 361 State v. Iowa, recognize cases waiver as an Barber, (Fla.1974). See like 301 So.2d 7 issue available ineffectiveness not con- wise, State, (Me. Stack 492 A.2d 599 sidered on appeal, first but further find 1985). Louisiana also follows this obvious cause in the nature of principle. The Supreme Louisiana Court claims on an insufficient record so that states remedy through that “defendant’s waiver is discarded in favor of substantive post conviction relief in the trial court disposition post-conviction process. quality attorney’s where the assist White, State v. (Iowa 337 N.W.2d 517 fully developed explored.” ance can be State, 1983); Sims v. 295 N.W.2d 420 Prudholm, State v. 446 So.2d (Iowa 1980); Kellogg, 539; 263 N.W.2d Dunn, (La.1984). See also Ex Parte Gavin, 425 N.W.2d 673. Daniel, (Ala.1987); Ex Parte So.2d 1300 Horsley (Ala.1982); So.2d 942 Idaho has a different derivation which 527 So.2d 1355 cert. de (Ala.Cr.App.1988), applies judicata res whether there is an — nied -, adequate S.Ct. record or not when the issue is

617 actually appeal. 142, cert. denied raised in first If (1984), not Ariz. 692 P.2d 991 juncture, post-conviction raised at that 1111, re- 2347, 105 S.Ct. 85 L.Ed.2d lief except remains available that the cases v. Carriger, (1985); State 864 132 Ariz. create an if unsettled doubt the issue could People White, 301, (1982); v. 645 P.2d 816 have been and was not settled on first 417, Lucero v. (1973); 182 Colo. 514 P.2d 69 appeal upon “adequate an record” and no People, 173 94, (1970); Colo. 476 P.2d 257 developed additional record post- for State, Chamberlain v. 650, 236 Kan. 694 conviction from which ineffec- Boyer, State v. (1985); P.2d 468 208 Mont. argument factually tiveness is developed. State, 258, (1984); Gunter v. 676 P.2d 787 State, Storm v. 718, 112 Idaho 735 P.2d 319, (1979). See also 95 Nev. 594 P.2d 708 State, v. (1987); 1029 671, 100 Idaho Kraft proper admonition of process through post- Ruth, State v. (1979); 603 P.2d 1005 98 Valdez, v. State petition, conviction-relief 879, State v. (1978); Idaho 574 P.2d 1357 9, also (1989). See 160 Ariz. 770 P.2d 313 Tucker, 4, (1975); 97 Idaho 539 P.2d 556 State, Larson v. (Alaska 614 P.2d 776 Kraft, State v. 901, 96 Idaho 539 P.2d 254 v. Morishige, 1980) 354, 65 Haw. (1975), appeal. direct (1982). 652 P.2d 1119 following In the Michigan, which is the state techni State, see: Alaska: Fajeriak v. states, 520 cally post-conviction- without some defined Bryant (Alaska 1974); v. P.2d 795 Hawaii: process, provides usage relief of either State, (Hawaii 1986); 720 P.2d 1015 Neva a motion for trial or new a motion to set State, da: Daniels v. 579, 100 Nev. 688 plea aside accomplish a remand for (1984); Oklahoma: Coleman v. P.2d 315 hearing factually on claimed issues of inef State, (Okl.Cr.1984); 693 4 Oregon: P.2d develop fectiveness a trial Cupp, Hedin v. 66, 304 Or. 742 P.2d 604 Ginther, People v. court record. 390 Mich. (1987); Petition of Jef Washington: People 436, v. Dal (1973); 212 N.W.2d 922 fries, cert. 1338, 110 Wash.2d essandro, Mich.App. 165 419 N.W.2d — denied -, 102 609, appeal denied 430 Mich. 423 See also State v. Red (1988). L.Ed.2d 368 N.W.2d 573 Indiana considers that dick, (1988); 230 Neb. 430 N.W.2d 542 waiver appeal non-inclusion first is Propst, State v. 228 Neb. 424 N.W.2d subject to a fundamental error absolution Solem, (1988); and Aliberti v. for substantive in post-con consideration (S.D.1988). N.W.2d 638 State, viction 451 N.E. Metcalf general enumeration, This (Ind.1983). 2d 321 obvious- process which leads to ly identify does not sample substantive more than a review at least to determine law, that an end run adjudicata to res available case serves to delineate a State, Schiro v. attempted. 533 N.E.2d strict first forfeiture rule as now State, (Ind.1989); adopted by majority Wyoming leave Wickliffe State, Lane (Ind.1988); N.E.2d 1385 standing alone. Substantively, there is State, Bailey v. (Ind.1988); N.E.2d 947 very good perspec- reason for the broader reh’g denied tive (Ind.1985), N.E.2d usage estranged which denies of this State, Williams v. (5/6/85); 464 N.E.2d system jurisdiction. other First Metcalf, (Ind.1984); 321; 451 N.E.2d appear concept by analy- as a fundamental Dolan (Ind.App.1981). 420 N.E.2d 1364 many jurisdictions sis in is that a trial Lee, In Re 246 Ind. . Cf judge initially should consider the ineffec- reh’g denied 246 Ind. N.E.2d tiveness claim. expected He can be to be N.E.2d 696 more attuned to the occurrence and events adjoining Our other the claim arises from generally states what occurred in fol- proceeding. low the Secondly, rule of federal courts initial trial and most jurisdictions significant, state ineffectiveness of the consideration that for claims, counsel is not waived counsel failure to most ineffectiveness there is initiat- present preclusion ing on first responsive as a contentions of the client and Cook, State v. forfeiture. explanations by 150 Ariz. attorney. ap- Direct Carriger, State v. 724 P.2d 556 peal preclusion evidentiary affords no con- but, significantly, reviewing of either more sideration ineffectiveness claims as a This improve the second. is a general no elucidation tool to quality of concept of the federal courts representation fundamental legal distorts criminal evidentiary seek the record for a fair which system. justice of im- Direct methods thoughtful conclusion based on the proving legal caliber of assistance actual *20 efficient more and effective. facts. of counsel claims shortcomings ineffectiveness views of

Since Cosmic the of justice of system the of our system invade essence legal our should be avoided when counsel, summary right to effective as the an court for considers a claim are ini- disposition forfeiture mechanisms relief from conviction a based on denial of concept to the broad delivered micable right to representation. effective Annotation, Adequacy De- justice. See disposi- Courts should aim instead at a of Representation Counsel’s Crimi- tion the of individual is of case which at fense and Post- Regarding Appellate nal Client once sensible and fair. A of framework Remedies, A.L.R.4th 582 conviction 15 carefully legal constructed principles is (1982); Annotation, Adequacy of Defense to achieving goal. essential that But Representation Criminal Counsel’s of disposed not cases are of alone. rules Remedies, 13 Regarding Post-Plea Client adjudication of an ineffectiveness Annotation, A.L.R.4th largely claim a judging is matter of the in Modem Status Rules and Standards of particular a facts of as case. Just the Adequacy Courts as to of Defense of a complex defense criminal case is a Representation Counsel’s Criminal of decisions, process involving myriad a of Client, (1980). such, As A.L.R.4th 27 an judging ap- ineffectiveness on claim processes these shortcut which avoid rea- peal requires sensitivity to and aware- to soned decision are not inclined often many ness of different Ineffec- factors. Osborn, succeed. 861 F.2d This is only particu- tiveness not a matter of try should repeal court not to Evitts v. lar, identifiable errors. It often involves Lucey, 469 U.S. S.Ct. systemic mediocrity a which infects the U.S. reh’g L.Ed.2d denied 470 entire defense. When and that oc- how (1985) by 105 S.Ct. 84 L.Ed.2d 841 curs be difficult to determine. But readjustment. constitutional If subliminal integrity judicial rests, of system our issue on of counsel is instances, many ability of our real, Harris, it as will continue to smoulder appellate courts to arrive at an answer Conversely, 109 S.Ct. 1038 demonstrated. question. that clearly unjustified if the claim is without Comment, Representation as a Ineffective merit, quick a substantive determination Basis From Conviction: Princi- for Relief provides validating atmosphere a for the ples Appellate Review, 13 Colum. J.L. adjudicatory efficien- system delivers (1977). & Soc. Probs. 89-90 chal- cy. lenge neither nor newly is new discovered. representation proven has Ineffective Waltz, Inadequacy See Trial of Defense burgeoning problem, be a recent Representation as a Ground Post- causes years, multiplicity with a and a Cases, Conviction Criminal Relief conflicting variety of ramifications. Two (1964). N.W. U.L.Rev. distort the of such motivations treatment suggest justice I by formula and One, desire to claims simply unacceptable today forfeiture the num- preserve convictions and limit system an affront to the to the but appeals, totally inconsistent ber jurisdiction. Realistically, this representa- citizens of right with effective general concept, delivery Moreover, approach shortcuts in a tion. hard-line justice in a demo- not eliminate cases be- becomes self-destructive does frivolous society. is to Obviously, jurist cratic if a cause most claims are advanced with lit- regard realistically accruing for the of success. review the number of tle likelihood side, principles presenting appeals other use of the now effectiveness On inquiry, apparent becomes Under USCS in Federal Court § 2254 persuasive merit is found in some and little State Prisoner’s Fourth Amendment many. justification or no Forfeiture as Claims, (1985). 75 A.L.R. Fed. 9 Cf. developed by court now will tend (3rd Ryan, O’Halloran v. 835 F.2d 506 deny early confuse no-merit cases Cir.1987) and Compoy, Turner v. 827 F.2d justice really I do not for the meritorious. — (9th Cir.1987), cert. denied produc- cannot why see we cultivate what -, 109 S.Ct. reh’g L.Ed.2d tively grow adjudicative process in the — U.S. -, denied anything except noxious weed. Cf. L.Ed.2d 205 Greenhalgh, The Assistance Counsel All of strange this seems somewhat since in the Year 25 Crim.L.Bull. Clause in the denuded Wyoming’s even version of statute, present post-conviction-relief Clearly, appellate attorney careful will following remains: *21 companion now add ineffectiveness as a (a) procedur- A claim under this act is stated issues on criminal cases to avoid ally jurisdiction barred and no court has complaint both forfeiture and a follow-on to decide the claim if the claim: that he was the malefactor as the faultful Miller, attorney. (i) Assistance Could have been raised but was not Effective A Right Compe Counsel: appeal pro- raised a direct from the Defendant’s Precious, tent Counsel is But Hard to ceeding petitioner’s which resulted Define, Lawyer California conviction; charges law settled ineffectiveness (ii) original Was not raised in the or an encompass mixed issues fact and law. original petition amendment to the under Aliberti, 428 N.W.2d 638. The Indiana act; this or phrases question “factually court to be (iii) Was decided on its merits or on Schiro, oriented.” 533 N.E.2d 1201. What procedural grounds any previous pro- abrogate availability is done here is to for ceeding has final. which become development the full of the com (b) (a)(i) Notwithstanding paragraph plete context of the issue for review. Os section, may petition a court hear a 612; born, Note, 861 F.2d State v. Smith: if: The Standard Counsel of Effectiveness of Following in Hawaii Strickland Wash (i) petitioner sup- sets forth facts ington, 9 U.Haw.L.Rev. 371 ported by affidavits or other credible evi- dence which not known or reason- was that, my It is conclusion these deci- ably to him at the time of a available sions, rights post-conviction-relief all to the appeal; direct or remedy of of counsel com- plaints have been written out of this state’s (ii) finding The court makes a that the justice delivery system. Consequently, im- petitioner constitutionally ef- was denied persons resort mediate incarcerated fective assistance or counsel his direct proceedings justified federal is now with- finding may This be reviewed challenge out from claimed non-exhaustion. supreme together court with fur- really go It is the call to If “let’s federal.” ther action of the district court taken on available, no relief is there is no exhaustion petition. Wilkes, supra, to consider. See D. 4-11 §§ (c) apply This act does not to claims of 4-19, discussing ineffective or inade- rights proceed- in any error or denial of quate Yackle, supra, remedies. See also L. ing: 66; Procedure, 65 and Criminal Habeas §§ (i) probation For the revocation of or Corpus and the Exhaustion Doctrine: parole; Law, Daye Lights Dark Comer (ii) Provided statute or court rule Brooklyn L.Rev. 565 Annota- trial, reduction, tion, sen- new sentence Opportunity Constitutes “An What post-verdict tence correction or other mo- Litigation” Full and Fair in State Precluding Corpus Court Habeas Review tion. (d) No under this act persuasive justification shall be or constituted (5) years allowed if filed more than five harmless error so that disposi- substantive judgment after the of conviction en- page tion in a opinion might few have tered. properly'occurred. That opportunity for substantive review should compared W.S. 7-14-103. the universe of issues raised by this Perhaps simplistic it is too to observe present “shortcut” improvidently called that the criminal client seldom is informed procedural default as a forfeiture of consti- attorney before that his made a rights derived, tutional existent, from Likewise, significant mistake in trial. incompetency or participating mistakes of incarcerated individual in the peniten- state attorneys. tiary access to a without record or tran- script singularly unable to accumulate It is not without some wisdom that an knowledge adequacy of the with which his critiques observer the American character- approached have istic to attempt “efficiency” shortcuts and responsibility ethical to be an advocate in complicating creates expansive prob- competent his behalf. Time and evaluation lems. required to determine ap- whether the philosophic A overlay for this decision pellate attorney seems to be bent on de- ignored. cannot be If the thesis is one to fending his public agency co-worker in insulate trial practicing courts and attor- fellow member bar with whom he neys from substantive evaluation of the realistically works or to sig- determine that *22 competence performance, of their justi- nificant errors have been committed fication is abysmally immoral. If the idea legal performance by practi- the licensed justice is to confine under the United denigration throwing tioner. The rocks courts, States Constitution to state it lacks glass at houses is today no less observable content inevitably, since with the decrease past law than in times appeared when it performance, an increase in observation companion profession which was by the judiciary federal develop. will If thoughtfully pursued by multiple of ob- the idea is by procedural that a shortcut servers and scholars as “conspiracy simplifies default resolution of constitution- malpractice silence” for medical cases. issues, al just lacks common sense. This All say of this is to realistic case is particularly bothersome because the application post-conviction-relief of the new majority cites a Supreme United States statute which was intended to reduce ac- Court case which justify does not the deci- cess to constitutional evaluation of claimed sion made and attacks the effectiveness of counsel mistakes will still not logically or neglect counsel in to include a claim of legally be accommodated within the waiver- ineffectiveness of appellate counsel as an concept by forfeiture which this case is issue which was created this court after determined. One can believe that no de- had, briefing case, in itself for this been counsel, fense trial prosecutor court nor completed. told Amin explicit that an Wyo- violation of ming occurring law was when examination I would reverse the denial of an eviden- of his protection wife without the of his tiary hearing to Abdula Amin for consider- immunity privilege permitted. As a ation of the appoint- effectiveness of all his fact, matter of probably he did not even ed counsel in appeals.13 trial and defining know that the case frequently cit- ed in federal law had no relevance since

related to a totally federal rule and distin-

guishable Wyoming from process where an

explicit Wyoming statute existed.

It well be that the trial time issues merit,

now claimed Amin either lacked Tigar 13. As writing Professor concluded in his well-hon- ored of 1970: DEEN, Sally Laurine (Plaintiff),

Appellant (Defendant). DEEN, Appellee B.

Darrel

No. 88-245. Wyoming.

Supreme Court of May Oakley Legal Robert A. Services for Inc., Wyoming, Cheyenne,

Southeastern (argued) Richard Ducote Richard Ducote Associates, Orleans, La., Judy & New Legal Montana A. Williams of Services Ass’n, Mont., Billings, for appellant. George L. of Simonton and Si- Simonton monton, Cody, appellee. Edwards, Cody, Ad Li- Chris Guardian tem. THOMAS, URBIGKIT,

Before MACY SPANGLER, GOLDEN, JJ., Judge. District SPANGLER, Judge. District challenges the Appellant decision of awarding trial court in a divorce action *23 custody parties child of the minor appellee. Appellant contends that the trial awarding cus- court abused its discretion the record was clear tody appellee where posed danger of he sexual abuse that making its court erred that trial receiving Dr. evidence from decision before pre- to whether he had Berton Toews as child. medication for the scribed certain We affirm. Custody in 1976. had

The child was born disputed separation of the since the been appel- Generally, parties July of point, for in the power public more and more beside both From commanders perceived they more and stridently real world are more private and more we hear more pros- primacy counterposition. The causes of and have even that must the claim order increasing de- pects tension must be justice; by for this an assertion meant over such clear that existing But should be speaker prefers bated elsewhere. con- that the process treads power the criminal political our discussion of and economic stellation of dispossessed upon issues close the fundamental social preserved. From alienated truth, neglected this increasing To have insistence our through time. comes an there abstraction, heedlessness, or fore- primary, guarantees of fairness formal regret. judgment, willingness be the occasion growing should is a to insist and there upon Term, Tigar, Foreward: guarantees militantly Supreme Court 1969 even these time, Rights: Disquiet speak disruptively. of ac- Waiver Constitutional In such a Citadel, justice 84 Harv.L.Rev. becomes commodation of order