*1 Rickey CUTBIRTH, Don (Petitioner),

Appellant Wyoming, Appellee

The STATE of

(Respondent).

No. 86-53. of Wyoming. Court

March *2 Munker,

Leonard D. State Public Defend- er, McClain, Deputy and Martin J. State Defender, Wyoming Public Defend- Public Program, appellant. er for Gen., McClintock, Atty. A. A.G. Gerald Gen., Stack, Deputy Atty. John W. Ren- neisen, Guthrie, Mary Attys. Asst. B. Sr. Gen., Intern, Legal Kaylin Kluge, D. appellee. THOMAS, BROWN, C.J., and Before CARDINE, MACY, URBIGKIT and JJ. THOMAS, Justice. appeal, taken from the denial relief, post-conviction

his efforts to obtain primary questions. Cutbirth raises two Initially, he the trial court asserts denying erred in his motion for a new trial ground premised upon which was of new- ly He discovered evidence. also claims that denying the trial court erred in his motion urged relief in post-conviction judgment which he and sentence which formal- assistance counsel in his di- degree ineffective ized Cutbirth’s conviction second State, Wyo., appeal support rect his conviction. In Cutbirth v. murder. 663 P.2d issue, argues of this latter he opinion in that case suc- ineffective assistance is demonstrated cinctly describes the circumstances sur- the failure to assert in the direct rounding shooting *3 the of on Cutbirth’s wife two issues which he now contends estab- April 1982. The which evidence was proceedings: (1) lished error the trial the submitted the at trial was held to be suffi- introduction into evidence his trial of that, justify jury cient to the in concluding prior physical assaults which he committed quarrel, in the course of a Cutbirth ob- (2) upon wife; his the violation of his Magnum pistol tained his .357 from a cabi- right compelled not to to net, it its removed from holster and shot give against himself. con- evidence We his wife in the head it. As soon as his prejudicial was no clude that there error affirmed, conviction was Cutbirth institut- implicated proceedings, in these and we ed collateral attacks that conviction. affirm the decision of the trial court. Those efforts resulted in a consideration of brief, In appeal his states the issues as: Cutbirth an from a of photographs denial of all and a transcript exhibits of “I. the trial court erred in de- Cutbirth’s Whether recorded nying Appellant’s for a statement to law of- Motion New Trial enforcement State, Cutbirth v. upon newly was ficials. Wyo., which based discovered 695 P.2d evidence. Some of Cutbirth’s efforts proceed with his collateral attacks are out- Appellant “II. inef- Whether received opinion. lined that fective assistance of counsel in the appeal. course of his was in obtaining per- Cutbirth successful per- “III. this Whether Court erred in mission the district court to have some mitting the State to introduce evidence of the indepen- evidence evaluated 404(b), W.R.E., pursuant to Rule that criminalist. That dent individual concluded Appellant previously had hit his wife. report explanation in a that of the Appellant’s “IV. Whether conviction irregular head, wound in the victim’s fur- was obtained in violation of his constitu- pathologist, nished at trial was erro- “ * * * right compelled give tional not to be neous, [p]re-impact destabiliza- against evidence himself.” ricochet) is, however, (e.g. angle tion —low Wyoming The State of sets forth this possible irregular entry state- cause of such an ment of issues to be decided in this report say, The went wound.” on how- “ * * * case: ever, [tjhis that neither be could “I. appellant’s Whether motion for new confirmed or excluded an examination properly newly trial because was of the bullet due to the recovered extensive presented? damage discovered evidence was terminal ballistic deformation penetration it incurred from of bone.” The ef- appellant “II. Whether was afforded theory upon by of ricochet was relied Cut- fective assistance counsel? birth in his Amended Petition for Tri- New “HI. Whether issue the admissi- al, and he claims that new should prior treatment of bility defendant’s granted ground newly have been brought properly to the the victim was evidence. discovered attention of this court? appellant’s Whether conviction “IV. State, Opie Wyo., 422 P.2d violation of his

was constitu- obtained court set this forth those factors right against tional self-incrimination? party seeking new trial appeal entire should “V. this Whether satisfy must the court: “ * * * even entertained?” (1) That has the evidence come trial; (2) knowledge since the it proceedings subject The which are that owing to the dil- were initiated the district not want due sooner; (3) following igence it court this court’s affirmance that did come coming a little proba- I seen trickle blood so it would it is material that that verdict, if the here.’ produce a different down her forehead bly (4) granted; trial were new killing theory “The of an accidental cumulative, viz, speaking to facts in jury. jury to the found submitted was evidence at relation to which there guilty. Defendant omitted.) (Citations trial.” Haag may the theories of Lucien “While State, supra, were Opie The issues come to the Petitioner have attention Re- presented in this case. to those similar trial, of due exercise since necessity for have reiterated the cently, we was, is, diligence, there no valid rea- demonstrating to satisfaction why these not sooner theories were son of these factors is each district discovered. State, Wyo., 737 P.2d 336 present. Gist “Furthermore, from Lucien the evidence P.2d 135 Frias v. Wyo., 722 *4 so it would Haag is not material that are mani- these factors Whether produce result. The probably a different sufficiently granting the justify to fested irregular of the is an premise evidence is a the discre- a trial matter within of new Petitioner, Haag, Mr. entry wound. and court, not re- trial do of the and we tion ‘fully gun theorize that because the decision trial court unless the of the verse irreg- fired properly stabilizes bullets’ matter is shown as a an abuse discretion entrance could have been ular wound This conclu- of law. Gist supra. by by only destabilized caused a bullet justified only be on the basis sion can However, patholo- the ricochet. at trial decision that the trial court’s determination gist testified there was extensive that unreasonable. was bullet; fracturing of the that skull the case, judge, the his Order In this to be fairly normal for such bullets it Trial, Denying specifically New addressed flat’; ‘incredibly high velocity bul- that way: issues this the exit; may may and that there lets not “Now, conviction Petitioner attacks his irregular en- possibilities for are two opposite Specifically, from the direction. or as wounds: unstable bullets trance has discovered Petitioner asserts that he fractured, the widened the bone it kill- the new evidence which establishes would, Haag Mr. testing wound. ing offers to be accidental. Petitioner best, to contradictory or cumulative Haag, a the conclusions of Lucien C. However, testimony elicited at trial. the ‘Pre-im- expert, theorizes: ballistics who conclusively establish that it would angle rico- pact (e.g. destabilization —low accidental; impor- killing was more the is, chet) however, possible cause tantly it would make an accidental irregular entry such an wound.’ killing probable an intentional more than argument killing the “Petitioner’s that left with killing. juryA still be would theory. Al- accidental not a new was the the same conflict to resolve: rely on though the Court does not the killing intentional the State as claimed case, its in this statement for decision it by De- it an claimed or was accident as interesting to note that in a statement fendant?” police suppressed to the order, applied In its the trial court Petitioner, Court at the insistence of Mr. criteria that due dil Opie and found reported thought Cutbirth that he have the views of igence would disclosed empty; his gun was that he wanted wife trial; prior that the testi alone; the criminalist him her to leave that he wanted business; mony of the would be con he criminalist know that meant he direction; cumulative, i.e., addressing gun tradictory pointed her facts as to which there was evidence at the click, thought just snap. it ‘I would It trial; that it was not so material that it roar, I and I went off. heard a loud produce would probably a different verdict I jumped. It scared me and looked addition, trial. mat way at another to those her and I looked at wall back wall; (hit) figured perhaps I discussed it judge, because ters the trial Trial, ing to note one of any is worthwhile New without being reference criminalist also reports appeal said: made in the notice of to the order petition post- which denied Cutbirth’s for present “No of ricochet was evidence Consequently, conviction relief. ap- this bullet bullet removed from the [the plication by appointed prosecute counsel head]; flattening the substantial victim’s appeal, this court entered an ex- order partial breakup of the bullet was due panding scope appeal to include damage.” to terminal ballistic question adequate representation in subsequent report Even if the is read as an ques- direct and the collateral opinion suggestion of ricochet instead of justification tions raised as for the conten- possibility, opinions another inadequate tion of representation. conflicting. criminalist are rule, Under our usual urges we would Cutbirth the court to abandon the not consider the contention test, that the Opie but Opie we satisfied that the permitting erred at trial in the introduction appropriate approach case establishes an into prior pursuant evidence of bad acts analyzing claims such as Cutbirth’s. 404(b), W.R.E., Rule nor the claim that We affirm the of the motion denial for new Gutbirth’s not to compelled give ground trial which was based on the against evidence himself had newly been violated. discovered evidence. There is less disciplined This court has taken a approach justification granting trial on new relief, post-conviction pointing out that it ground present in this case than was *5 is not a right substitute for the State, of supra, in review Frias v. which this court upon appeal conviction, from a nor it to is affirmed the denial of a motion a for new appeal. State, treated Pote v. premised upon trial also a newly claim of Wyo., (1987); 733 P.2d 1018 Hoggatt v. discovered evidence. State, (1980); Wyo., 606 P.2d 718 Johnson turn then to arising We the issue from State, Wyo., 285, v. 592 P.2d cert. denied petition post- the denial of Cutbirth’s for 932, 2864, 442 U.S. 99 S.Ct. 61 L.Ed.2d 300 conviction relief. This contention is articu (1979); Maschner, Wyo., Munoz v. 590 II, in lated Issues III and of IV Cutbirth’s (1979). Questions P.2d 1352 which of statement the issues. The claims relat post-conviction raised motion for relief ing prior battery to of the issues are to magni limited those of constitutional inadmissibility of Cutbirth’s statements miscarriage jus tude which manifest a of only come before us out an abundance of State, Wyo., Wright tice. v. 718 P.2d 35 honoring caution in to effective (1986); State, Hoggatt v. supra. Those assistance counsel in connection with an issues which could have been presented on appeal, suggested by Evitts Lucey, v. 469 appeal open challenge by are not to a mo 387, 105 830, 821, U.S. 83 L.Ed.2d reh. post-conviction for they tion relief because 1065, 1783, denied 470 U.S. 105 S.Ct. 84 judica- foreclosed doctrine of res L.Ed.2d ap 841 While counsel was State, supra; Wright Hoggatt ta. v. v. pointed represent to Cutbirth in connection State, Maschner, supra; supra. Munoz v. with the motion for upon new trial based newly evidence, discovered appointed procedural Our rule one waiver attorney apparently in understood that his default which is accord rule with the duties were purpose.1 limited to that For post-conviction pro invoked when a review reason, ceeding appeal pursued the notice of in this case in the federal courts. If se, was filed pro ap person Cutbirth convicted state court fails peal only Deny- legal taken from Order appropriate assert a issue when an any pleading styled We Respondent’s have resolved fail- concern about the "In Answer Mo- appoint represent ure to counsel to Cutbirth in tion Dismiss” which was not verified. Fur- petition post-conviction connection with his for thermore, complaint appeal no is made in this encompass petition, relief. He did not appoint represent failure to counsel to petition, allegations nor in his amended post-conviction petition Cutbirth on his for re- 7-14-104, alluded to in § W.S.1977. lief. appeared reference to his desire for counsel

1262 exists, post-conviction proceedings state in accordance with federal opportunity rules, person sought foreclosed which review is of a conviction post-conviction pro Wyoming. relief a federal State of he meet the dual re ceeding unless can The waiver rule serves to foreclose showing cause the fail quirements those made in Petition for claims Cutbirth’s Ross, Reed v. prejudice. actual ure and Relief and his Amendment Post-Conviction 1, 2901, 82 1 104 S.Ct. L.Ed.2d 468 U.S. Original to the Petition Post-Conviction Isaac, (1984); Engle v. 107, U.S. Relief3 we did include our 783, reh. L.Ed.2d denied appeal. reiterate expanding order We 102 S.Ct. 73 L.Ed.2d 1296 U.S. re of this state are not the courts (1982); Wainwright Sykes, v. quired issues raised to review which were 53 L.Ed.2d reh. denied 97 S.Ct. appeal have been on when could raised 241, 54 98 S.Ct. L.Ed.2d they post-con in a are asserted motion for Shulsen, (1977); Pierre 802 F.2d 1282 Bryant Hawaii viction relief. See — U.S. -, (10th Cir.1986), denied cert. Post Con (1986), citing App., P.2d 1015 reh. 107 S.Ct. Solution, A Suggested viction Procedure — -, 107 S.Ct. U.S. Legis. (1965) (purpose of on HarvJ. Shulsen, Andrews is to afford post-conviction state statutes Cir.1986) (10th 802 F.2d 1256 cert. denied relief to that of federal writ of similar — U.S. -, 1964, 95 L.Ed.2d corpus protection and to assure habeas — -, 536, reh. denied courts). in state (1987).2 Policy princi We then to the claim that Cutbirth turn ples finality judicial economy de of counsel was denied effective assistance allowed, mand that a state be as a matter appeal. claim his direct Cutbirth’s procedure, compel a defendant assistance of counsel rests ineffective ap in his assert all claims of error direct the two the failure to assert on peal. justly Failure do so results in a III and IV collateral issues identified as proceed waiver those issues collateral *6 appeal claim that counsel on State, above. The Wright v. ings. supra. ap Our every potential is a did raise issue not proach fits with the federal rule in because phenomenon. have dis relatively new We state, person the courts of a convicted only a few in which reversi covered cases raising post-convic foreclosed in a is from appel for ineffective ble error assistance proceeding any tion claim of error he which premised failure late the counsel presented appeal could should have on Matire v. on appeal. certain issues raise good unless he cause for not demonstrates Wainwright, 811 F.2d 1430 Cir.1987); (11th the presenting appeal issue on and actual State, Ind., Burton v. 938 455 N.E.2d prejudice arising from the failure Cupp, Shipley v. 283, (1983); Or.App. 59 present adoption of a parallel it. This rule (1982). reaching 650 1032 the applied rule P.2d While to the in the federal courts will result, Pennsylvania in are dis way facilitate in a the same cases material task of the tinguishable Pennsylvania the rule examining federal courts because issues raised appeal. Supreme They in the direct include: 2. The Court of the United States has asserted " * * * exception compulsory process structured an to this rule. to obtain claim of denial Accordingly, extraordinary evidence) that in an (and we think apparently favorable witnesses case, proba- where a constitutional violation has of counsel to the accused attributed to the fault bly resulted in the conviction of one who trial; pursuant at the failure arrest Cutbirth innocent, actually may federal habeas court warrant, regularly is asserted to a issued which grant showing the writ in the absence even aof clause; process as a of the due the violation procedural Murray of cause for the default.” v. inquest, county to hold an failure of the coroner Carrier, 478, —, 2639, 2650, 477 106 U.S. S.Ct. as of the due which also is asserted a violation (1986). This case is one in clause; county process misconduct exception pertain. which that would conspiring case make a homicide shooting. out accidental These conten- of an language 3. While couched in that asserts consti- specious. many respects patently claims, tions are essentially tutional contentions these claimed errors of law which should have been

1263 v. Murray, supra, arguable Smith requires that all issues even 477 U.S. at 536, raised, 2667, S.Ct. require Supreme Court, there is no 106 merit Barnes, v. quoting Jones said: finding prejudice of a to the ac ment “ * * * v. E.g., Pfaff, Commonwealth process 477 This ‘winnowing cused. out arguments 461, (1978); appeal weaker Common 1179 on Pa. 384 A.2d focus- ing likely prevail, on’ those more Carr, v. 1, far wealth Pa.Super. 320 466 A.2d being incompetence, evidence of Broomell, Commonwealth v. 1030 appellate hallmark of effective advo- Pa.Super. (1978). 386 A.2d 99 But cacy.” Dockins, see Commonwealth 324 Pa.Su (1984). play part appeal Tactical choices per. plethora 471 A.2d 851 well as at trial level. precedent years which over consist ently has rejected claims of as ineffective The claim of ineffective assist appellate premised upon counsel sistance appellate ance of is not an counsel issue failure particular to raise issues can be which can be as a foreclosed matter of Annotation, found the cases Ade cited Wyoming waiver or default under law be quacy Representation of Defense Counsel’s cause it not an issue could have Regarding Appellate of Criminal Client must, been raised appeal. initial We Remedies, therefore, Postconviction A.L.R.4th consider that issue. The first (1982 and task Supp.1987). identify Ineffective is to a standard assist effective assistance of appellate may justify ance of counsel counsel re respect be tested. With to the stan of a view state court decision a federal dard of effective assistance counsel on court, prejudice but the test” “cause appeal, adopt we the test set forth in normally will applied to such conten v. Washington, Strickland 466 U.S. Murray, tions. Smith v. 104 S.Ct. 80 L.Ed.2d reh. denied (1986). L.Ed.2d General “ * * * 467 U.S. 82 L.Ed.2d ly, the mere fact that counsel failed applied which we have recognize legal the factual or for a basis respect to effective assistance of counsel in claim, despite or failed to raise claim State, Frias v. E.g., courts. su it, recognizing does constitute cause Munden pra; Wyo., 698 P.2d 621 Carrier, Murray default.” approach This one is the which the 478, 486, 2639, 2645, majority of the federal courts have Barnes, Jones v. (1986). In adopted, although Court of 745, 103 States has United not addressed the raising pointed out that v. Maynard, Robison specifically. issue *7 every appeal impact can issue on lessen the (10th Cir.1987); Gray v. 829 F.2d 1501 specific of issues which counsel feels offer Greer, (7th Cir.1986); F.2d 800 644 Griffin a of reasonable chance success. It follows Aiken, v. (4th Cir.1985) 775 F.2d 1226 cert. simple that the is failure raise certain — -, denied U.S. 106 S.Ct. 92 appeal, on if they sues even were meritori Foltz, (1986); Bowen v. L.Ed.2d 715 763 ous, require does not inef conclusion of (6th Cir.1985); Schwander v. F.2d Lu- fective assistance of counsel. Emits v. Blackburn, (5th Cir.1985); 750 F.2d 494 cey, supra. Supreme The statement the v. (2nd Scully, Mitchell 951 746 F.2d Cir. of Court the United States is that: 1984), denied cert. 105 S.Ct. * *“ * A every brief that raises color- 1765, (1985); Cape v. Fran good burying able issue runs risk of the cis, (11th Cir.1984), 741 F.2d 1287 reh. de that, arguments the words Cir.), (11th nied F.2d 281 cert. 760 —those great Davis, ‘go John advocate W. 281, 88 474 U.S. Davis, jugular,’ Argument for the The (1985); Wyrick, Parton v. 704 F.2d 415 Appeal, (1940)— (8th Cir.1983). A.B.A.J. requirements The same up in a strong verbal made Strickland applicable mound that are set forth Barnes, su- Washington, supra. weak contentions.” Jones v. v. must be demon It pra, 463 representation U.S. counsel’s was S.Ct. at 3313. strated that only if review of hearing required showing made that errors were deficient sufficient to resolve was not func record is not that counsel so serious were regarding the constitution the choice of tioning disputes with accordance factual furthermore, Owens, the defi v. guarantee, and 731 F.2d 391 issues. Williams al appellant. prejudiced performance Cir.1983). peti- cient the nature of (7th Given adopt test found urges us to claims, Cutbirth envision it is difficult to tioner’s States, 508 A.2d 75 v. United Watson petition- testimony which the evidence States, v. United Watson (D.C.App.1986). hearing. present at such er would v. United vacated Watson of ineffective assistance When a claim States, (D.C.App.1986), and 514 A.2d raise issues on failure to counsel based banc. then was heard en the case exceptional is the appeal, we note it decision, Court the United States plurality on an could not be resolved case that of Columbia Appeals for the District We of the record alone. examination the Strickland test for ineffective followed of whether an the determination leave and found appellate counsel assistance hearing required to the evidentiary v. Watson prejudice. nor neither error after re- the district court discretion of States, (D.C.App. 536 A.2d 1056 United trial record.” view of the satisfied that the Strick 1987). We are States Court of United rule. represents the better land test indicates that its of its decisions some Washing v. Strickland paraphrase To on a factual determination analysis is based ton, v. Gist quoted in supra, as court. finding made the district See State, Wyo., 728 P.2d supra, Campbell v. — U.S. -, Kemp, Burger v. State, supra, in (1986), and Frias v. — 638, reh. denied 97 L.Ed.2d prejudice to Cut- analyzing question of (1987); -, 97 L.Ed.2d birth, claimed is failure to assert the instance, Murray, supra. v. In this Smith found to in his direct must be sues error, weigh question of either order of a in the denial to Cutbirth have resulted is, representation, preju deficient review, of which is not to be fair the result dice, turn to the record we must reliable, by showing an error of considered original trial. part and result judgment on of counsel Cutbirth as The evidence which instance, the district ing prejudice. In this W.R.E., 404(b), is sum Rule serts violated hearing respect court held no State, supra, 663 Cutbirth marized appellate of ineffective assistance of issue Essentially, it consisted of at 890. P.2d counsel, and this makes determination battery committed testimony of a McCotter, more difficult. Wicker 783 — year; instances preceding victim in the (5th Cir.1986), cert. denied F.2d 487 chasing his wife who which Cutbirth was U.S. -, escape; state trying to Cutbirth’s McCotter, 772 F.2d Hamilton v. given the victim a black ments that he had Cir.1985); (5th F.2d 701 reh. denied 777 of medical treat Aiken, supra. eye; and two occasions In Robison v. Griffin consequences victim ment Court Maynard, supra, the Tenth Circuit The trial court en by Cutbirth. batteries the case to the dis Appeals remanded *8 proof in chambers and offer of re tertained an inquiry with trict court for factual evidence was admissible counsel ruled that the spect appellate that then to the reasons motive, mal bearing upon the issues of ap direct certain issues on failed to raise Greer, of conduct. ice, and course Gray v. supra, the court lack of accident peal. detail, hold that requiring a we possibility unwarranted alluded to Without ruling respect correct in its hearing the facts with court was to establish the trial prior acts appeal admitting on of the bad to to raise issues the evidence the failure 402, 404(b), F.2d 647: 408 and said at 800 to Rules pursuant of discretion There was no abuse W.R.E. evidentiary seeks an “Petitioner further It was consistent with decision. that of ineffective hearing to resolve his claim elsewhere. state and in this evidentiary precedent An assistance of counsel.

1265 State, Wyo., Coleman v. 741 99 upon P.2d Cutbirth relies evidence that his blood State, Wyo., (1987); v. Elliott 600 P.2d alcohol content was more than .002. Other State, (1979); Lonquest v. 1044 Wyo., 495 however, testimony, demonstrates the va 575, 1006, P.2d cert. denied 409 93 U.S. lidity of the district ruling court’s that Cut- 432, (1972); Alcala v. S.Ct. 34 L.Ed.2d 299 birth was control of his faculties and State, Wyo., 487 P.2d 448 (1971), de- cert. doing what aware of he was at the time he 997, 1259, nied 405 U.S. 92 S.Ct. made the statements to the officers. This 466, 911, 1613, reh. denied 406 92 U.S. S.Ct. determination also consistent with Miller Grider, (1972); State v. 31 L.Ed.2d 823 74 Fenton, v. 104, 474 445, U.S. 88 Wyo. Wyo. 284 P.2d reh. denied 74 — (1985), L.Ed.2d 405 cert. denied U.S. Koch, State v. P.2d 766 64 -, (1986), Wyo. (1948). P.2d See also upon which Cutbirth relies. Naranjo, United States v. 710 F.2d 1465 (10th Cir.1983); United v. States Tsinni Although we would not be re (9th Cir.1979),

jinnie, 601 F.2d 1035 cert. quired presented to review claims denied 445 U.S. issues, the third and fourth we have con (1980); People Lazare, v. 189 cluded that no error was made the dis Colo. 542 P.2d 1290 trict court at connection with those Consequently, issues. those claims cannot respect With to contention that support a contention of ineffective assist protection his constitutional against self-in counsel; prejudice ance no can be found infringed, crimination was Cutbirth relies respect to them. Our conclusion that Fifth both the Amendment to the prejudice respect no can be found with to Constitution of the United States of Amer the failure to raise these issues ica Wyoming and Art. of the Consti § appeal unnecessary compare makes it trial, to tution. Prior a suppression hear them ing presented with other issues in Cut- was conducted in the district court. At appellate birth’s to determine if juncture, that the trial court limited the counsel admissibility guilty representa deficient of statements made Cut- Cutbirth, being tion. It follows investigating birth that unable officers to those prior prejudice, that to demonstrate were furnished to the advice cannot claim in that adequate representation appellate Cutbirth’s wife had died. The district coun judge satisfy prejudice found prior statements sel. His failure to made aspect to that time were free of of the coercive influence test forecloses that claim. voluntary were and admissible. He This discussion resolves the is foreclosed the admission of other state however, recognize, sues this case. We ments. Our review of the per record approaching the task this manner is us ruling by suades that the the district application antithetical to the strict totality was within the of the circum By agreeing expand waiver rule. adopted stances test which we Frias scope appeal, we created State, supra. The statements which were a demand that we address substantive claims product admitted were of uncoerced normally would be barred which but choice and compre demonstrated sufficient by tying Cutbirth invoked them to his claim hension assure that the waiver of Cut- inadequate by appellate representation right birth’s to silence was made with full attempt develop counsel. We should awareness of both nature adequate representa concrete standard for consequences and the of his This decision. by appellate case tion counsel so that we will Best is similar to Wyo., every proceed contrary P.2d instance Bueno-Hernandez State, Wyo., every the waiver rule and will not in in 724 P.2d 1132 cert. — -, simply stance address the matter ad *9 (1987), support way L.Ed.2d 523 which inevitably and we the hoc finds counsel’s decision the trial professional court as to the limited decisions the tested collec admissibility of Cutbirth’s statements. tive determination the members of the

1266 presented. peti must The they have counsel rests panel as to what would appellate con- given the same situation. We identify un done then must a clear and tioner counsel’s the issue of whether clude equivocal rule of law which those facts constitutionally deficient performance was transgressed in a clear demonstrate was Washington, v. Strickland su- light obvious, merely arguable, way. Murray, supra, v. Smith as invoked in pra, Furthermore, petitioner the must show Carrier, supra, should be Murray v. upon effect a substantial adverse way that analyzed in much the same complete perform a claim that the order to concept plain analyzed the court has constitution appellate ance of counsel was submitting a claim of deficient error.4 to raise ally deficient because of failure counsel, pe- by appellate representation appeal. See McDonald v. the issue on proceeding post-conviction titioner State, Tomp (1986); Wyo., 715 P.2d 209 court, by demonstrate to the district must State, (1985), kins v. P.2d 836 Wyo., 705 original trial to the record of the reference 1052, 1277, denied 475 U.S. 106 S.Ct. cert. equivocal speculation resort without State, Munden v. (1986); L.Ed.2d 585 inference, The at that trial. what occurred v. (1985); Westmark Wyo., 698 P.2d 621 the claim of particular facts which Hamp- (1984); Wyo., 693 P.2d 220 representation by appellate inadequate preserved appeal by appropriate adopt stringent have it for The standard which we is less 4. type objection. the Su of error that which has been invoked It is described as the than United preme of the United States in Court confidence in the outcome which undermines 152, 1584, Frady, 102 S.Ct. Wright, States v. 456 U.S. Practice and trial. 3A C. Federal 1001, 102 816, Procedure, 2d, reh. denied 456 U.S. (1982). L.Ed.2d 2287, If the § Criminal Isaac, Engle v. 73 L.Ed.2d 1296 appeal is evaluated failure to raise an issue on 783, 107, 1558, 102 S.Ct. 71 L.Ed.2d 456 U.S. standard, plain pursuant error the conclu- to the 2286, reh. denied 456 U.S. 102 S.Ct. may be reached is the failure to raise sion that that, (1982). It is in those L.Ed.2d 1296 cases, true beyond range of reason- issue extended States Court of the United ably performance undermines the effective rejected the defendant’s contention that process. appellate in the The omis- confidence prejudice should be deter cause and standard reversible of such an issue when obvious sion plain inquiry. mined in the context of a error justified cannot be as a error is demonstrated important The Court that because of the stated — Burger Kemp, Cf. v. U.S. tactical decision. finality respect challenges concerns of with -, 3114, L.Ed.2d reh. denied 107 S.Ct. comity state convictions and because of consid — -, 108 S.Ct. erations: Murray, 477 U.S. 106 S.Ct. Smith v. "We remain convinced that the burden of objective This 91 L.Ed.2d 434 justifying pris federal habeas relief for state plain error is not dissimilar standard 'greater showing required oners than in other decisions which the standard identified plain appeal.’ on establish error direct objective attempted crite to establish some have 145, 154, Kibbe, Henderson v. 97 S.Ct. identifying by appellate counsel error ria 1730, 1736, (1977); United See Ro manifests ineffective assistance. Frady, States v. 456 U.S. at Cir.1987) (10th Maynard, 829 F.2d 1501 bison v. Isaac, (Footnote omitted.) Engle v. 1593." (facially appears that a reversal is conceivable 134-135, supra, 102 S.Ct. at 456 U.S. at appeal); been raised on Matire v. had the issue if the When a state court is asked to determine (11th Cir.1987) (a Wainwright, 811 F.2d 1430 performance appeal on did not meet of counsel notwithstanding single issue raised weak assistance, the standard of effective it is our issue); availability meritorious substantial stringent conclusion that the less standard Greer, (whether Gray the issues omit v. hearing plain appropriate. error is Unless a likely clearly to re would have been more ted investigate required every to be instance to so from the in reversal and were obvious sult appellate respect the rationale of counsel present such the failure to trial record eliminating appeal, some issues from the ap to ineffective assistance issues amounted objective appropriate standard is to measure counsel). pellate ñtrnished was effective. whether assistance State, Ind., (1983) N.E.2d 938 Burton v. Greer, (7th Cir.1986). Gray See 800 F.2d 644 Or.App., Shipley Cupp, P.2d 1032 plain encompasses error standard those er- (1982) Wainwright, consistent with Matire v. permitted rors which are be raised precisely proposition supra, articulated, is not as but though proper objection even was not made at provided test in Strickland and the preserve appeal. trial to The usual the error Washington, objection requirement of the is waived because 1267, 104 reh. denied 467 U.S. perceived magni- L.Ed.2d the error is to be of sufficient not discussed. reasonably would tude that effective counsel *10 State, (1977). P.2d the ton v. Wyo., 558 amination of merits the claimed is- simply analysis a sues an ad hoc The adverse effect substantial of them by the to determine assistance of court what mem- the context ineffective its might differently. bers have done appellate by When counsel shown demonstrat “ * * * that, objective the probability criteria are invoked ing and the a reasonable district errors, persuaded appel- court then is the unprofessional but for counsel’s late counsel did make a mistake which proceeding been was result of the would have prejudicial petitioner, to the of the probability A is a different. reasonable appropriate relief by can be afforded order- to undermine confi probability sufficient ing or, alternative, a new in the a v. Strickland dence in the outcome.” appeal reinstatement the direct so that Washington, supra, 466 U.S. at may presented. the issue regard In this the test does S.Ct. at 2068. integrity fairness of the address the correctly The district the resolved Hopkinson v.

judicial See proceedings. claim Cutbirth that he was to a entitled State, Wyo., 632 de P.2d cert. newly new trial because of evi- discovered nied 455 U.S. 71 L.Ed. dence. no There was error the order of State, Wyo., v. (1982); Jones 2d denying petition post-con- the court the for (1978). probabili P.2d 1150 The reasonable respect viction relief the contention ty one a must be that demonstrates more of ineffective assistance counsel in Cut- appellant result if favorable to the the appeal, birth’s any direct nor for the See Nim pursued. had omitted issue been petition other reasons asserted in that for State, mo (1979). Wyo., 603 P.2d post-conviction relief. affirm We the dis- both aspects appeal. trict court on of this application objective The of these permit criteria presented will a trial court URBIGKIT, J., dissenting filed a post-conviction with a claim for relief to opinion. showing decide whether a has cause URBIGKIT, Justice, dissenting. been sufficient made to avoid the waiver rule. attaching The claim for relief to inad appeal This post-convic- follows denial of equate representation appellate counsel relief tion convicted defendant in two can be necessarily resolved without consid separate proceedings. Rickey Cutbirth ering the merit of the issues substantive for pro-se first filed a motion trial on new process followed, petition raised. If evidence, newly the basis of discovered fol- post-conviction permit ers for relief are not petition post-conviction lowed for re- ted principle by waiver evade alleging application lief trial error. An for claiming inadequate representa device appointment of was actually counsel by appellate tion Yet petition counsel. not made at commencement of either adequate er have who been denied proceeding. appointed Counsel le- was representation by appellate counsel is af gal on assistance the motion for new trial opportunity potentially forded a fair post-conviction-relief peti- not for the but meritorious issues to be resolved. summarily tion which without case, Later, process hearing. following hearing Cutbirth’s we but have described presentation would have led to correct actual without evidence any premised counsel, result necessity argument without for consider- ing, in any way, issues motion for new trial With- substantive was denied. appellate which he claims counsel failed to out counsel for the trial court session present. inadequate represen- organize properly post-conviction peti- claim of tion,1 by appellate necessary tation counsel could have been it is to consider the application objective essentially resolved status as if two different cases presented by separate criteria forth appeals. set above rather than an ex- (1988); State, right-to-appointed-counsel Wyo., 1. The did not issue 749 P.2d 767 Alberts v. develop appointment Wyo., State, Long Wyo., since of an 745 P.2d 898 7-14-104, requested petition. in the Fondren 745 P.2d 547 See § W.S.1977. *11 eyewitness In the of other testi- absence ricocheted bullet or a direct shot. The conviction, of the mony, the critical issue significance missing of the shirt as an item homicide, whether an accident or intended in report of evidence was detailed a written primarily physical determinable was evi- expert: of the defendant’s reported by expert dence as observed and white, long-sleeve “As of this date the witness, involving gun the distance from purportedly by Rickey shirt worn Cut- decedent, determinants, powder-burn pro- shooting birth at the time of the of Patri- jectile entry, direction and movement on by cia has Cutbirth not been received conflicts in and contended the defendant’s (This undersigned. garment # is item 1 testimony explanations during police of his Wyoming Laboratory on the State Crime interrogation. 24, 1982, Report May dated Kemmerer signed case no. 82-0810 by and Howard MOTION FOR NEW TRIAL BASED ON Herr.) D. It is this shirt and the distribu- DISCOVERED NEWLY EVIDENCE any gunshot tion of residues on it that anything If learned from was Frias v. stands to confirm Mr. descrip- Cutbirth’s State, (1986) Wyo., 722 P.2d 135 shooting tion of this as an accident. It remand, succeeding acquittal after it specifical- was for this reason that it was expert pathology is that evidence can be ly physical named as the second item of inherently suspect it properly and when Judge evidence the Court Order of by experienced experts, may answered Troughton dated October 1983. For be so absolute and certain as first related upper garment[s] similar reasons the by parameters the forensic witness when by sought worn the deceased were but (some- by opposing experts are uncluttered produced.” have never been eyewitness what like untested identifica- tion). Frias, Initially, on the subject of In denying the order of the trial court decision, although court misreads that trial, the motion for new was said: majority opinion author of this had there Haag “While the theories Lucien [the dissented to the reversal and retrial which expert forensic on firearms and ballistics case, acquittal. resulted in In that employed by post-trial defendant for the majority chose the broad context of ineffec- may motion for new have come to trial] tiveness of counsel within which the failure trial, the attention of Petitioner since the pathology testimony, to have suitable sub- diligence, the exercise of due there sequently in post-hearing request, was, is, why no valid reason these important was an characteristic. I would theories were not sooner discovered.” demonstrate, read the decision to in a cer- absolutely sup- tain and Unless we attribute to clients the way, related that not counsel, posed experience, knowledge, there competency, was ineffectiveness of but there capability was clear mistake denial of the of counsel as attributable to retrial, motion for a In new trial. defend- learned members of the particularly bar— acquitted, ant previously was based on de- jail so when the client is in and the testimony. case, Additionally nied in that flexibility library has the of office and —all specifically the record was much more de- happenstance of this is to define the veloped by evidentiary post-trial hearing. performance of counsel to be the assumed responsibility charged of the defendant. Obviously, singular problem present- place, going the first unless we are ed this case the motion for new trial arrange attorney go jail to have the unexplained police was the loss his mistakes in defense rather than the garment worn defendant. Under client, which have been the case at examination, expert might this evidence periods short past, the ancient I decline categorically destroyed have the thrust of impose empirically on defendant his in- prosecution’s expert trial-time testimo- carceration as ny clearly probative resulting inadequa- the burden for the conviction, cy representation. since the critical issue was See Laing v. injury from Wyo., Urbigkit, whether the fatal derived 746 P.2d J., Macy, J., concurring part short-circuited and excused dissenting part. stale explanation and almost obscene something defendant waived about which Secondly, in year cel- bicentennial he knowledge had no concerning States ebration United Constitution experience totally lacking. Obvi- of Wyoming and near centennial birth (and ously, perhaps trial counsel even trial Constitution, appears there to be a tenden- *12 judges) something had better learn from cy to short-circuit constitutional in Frias and in Cutbirth accidental in- versus simplicity, expediency, the search for and cases, tentional homicide but little solace is maybe just process less Due work. and stage. afforded this lawyer per- No is jur- assistance of counsel not effective are 2 fect; judge perfect; is, no is system and no legalistic oxymorons istic or to idioms be instance, in perfect. first disregarded pragmatically. They redundancy any government’s remedial qua essence democratic characteristics is the sine so, justice-delivery system. Even each of non of and organization. efficient reliable meticulously 1 us should re-read Art. of the It is in perspective this validity that the Constitution, Wyoming including particu- in the motion for new trial serves a desired Process; 9, by Jury lar Due Trial function, § § squeezed and should not be into Inviolate; 10, Right and of Accused to § nonexistence a facile and con- fallacious Defend, due-process guarantees with the tention with about evidence consideration Fifth, Sixth, Seventh, and Fourteenth lacking newly denied as a char- discovered Amendments to the United States Constitu- which, fact, acter in empirically is untrue. particular problem tion. I have no with the I would to properly presented find be here State, (Opie Opie Wyo., test 422 P.2d 84 the necessity inquiry within an actual (1967)), applied rationally if so as not to hearing to establish if: “ ‘ * to become a mechanism incarcerate an indi- * * evidence, had it been dis- vidual for counsel mistakes and failures or jury closed to the which convicted de- perhaps just misconception understandable fendant, light in all and other evidence preparation strategy. trial There is heard, jury likely [would] person, no particular lawyer, and in no trial have jury’s created mind a reason- designed performance per- found to be able not doubt which did otherwise exist fection, yet per- immutable character Keser v. guilt.’” as to defendant’s formance should be inevitably not what Wyo., 737 P.2d 764 compels finality unjustified to an convic- McDowell, quoting from State v. 310 tion. (1984). N.C. 310 S.E.2d 309 It is not the my burden of dissent to Peltier, also, States v. United F.2d See 731 (as apply self-experience may individualized States, (8th Cir.1984); Smith v. United 550 past experi- be active derived trial (8th Cir.1980), 635 F.2d 450 693 cert. denied ence) legal witnesses, process, technical U.S. L.Ed.2d questions, and even ballistics to determine States, (1981); Lindhorst v. United empirically that, on a short-written report (8th Cir.1978). F.2d 361 For the standard fact, basis for a new trial was or was Agurs, see United States v. applied, not Obviously, submitted. sufficient evi- L.Ed.2d judge dence was to the available trial Illinois, Napue v. regard. make a decision in either What done, should be clarity where con- alone, For reason I this would reverse specific flict of facts testimonial the denial of the motion for presented here, as is new the case evidenced minimum, require hearing would provide, hearing evidentiary at a evaluation, happened live witnesses for determination of review what evi- dence, process order to assure due in a fashion not and otherwise to live consider in epigrammatic plied 2. "A legal encompassing combination for effect of to be stated rule words,” contradictory incongruous or logic paradox Webster’s total contradiction in as a Dictionary, ap- Third New International as here self-contradiction. countervailing expert-witness Furthermore, form the tes- regard to what could rational, timony discovered, as would afford a cases, factual have been these as well grant deny basis to a new trial. procedural-default as the decisions of the Supreme Court, United States are simply Keser, again by First in and now here impressing an one-chance-only unbearable case, majority posture this affirmation financing burden on defense counsel and ignorance on the relative of the trial court. budgets. required Counsel is abe mind My thesis here is not that a new trial reader, pathology expert, community necessarily granted should here on the busybody. If reasonable initial effort will partially developed bland and record of one suffice, required, unreasonable effort is affidavit; rather, proper brief it is that the , magnify and that criteria will the cost of consideration is not to be defined as the Redundancy process criminal defense. justification ignorance for decision in in always cheaper attempt- and better than hearing stead of buttressed actual perfection ed application. By first *13 live witness for informed decision. When decision, type of directly taps this court liberty invoked, serious interests are factu treasury state in exasperated cost, defense al, formalistic, not considerations should be since reasonable effort will never be suffi- intrinsic to constitutional As in decision. publicly cases, but, cient for defended even Keser, Cutbirth, court, and now the trial distressing, more denies or at least deni- (as exposure absent to actual evidence was grates rights justice may to those who Frias) jury the next trial will never have try pay their own costs of defense. opportunity to consider whether an inno importunely cent man was Society regularly sentenced. The is bombarded con- issue is not majority embodied in statement preventive medicine, tention about costs of “[Tjhis only that conclusion can justified be but at least the confines of those costs are on the basis of a that determination defined may limitations of what unreasonable,” trial court's decision was person. done to one Preventive law as a adequate but instead absence explora one-chance-only imposed responsibility af- by hearing tion simply unsupported is probability exposure fords to almost lim- ignorance bliss, Keser, fact. If ever surely $50,000 is it In private itless cost. promote justice cannot ever as investigation might a societal not have revealed the function to knowledge. be founded in In knowledge classmates' availability context, hearing I find the denial to be not by majority opin- be witnesses. This case unreasonable, only simply wrong. personifies request but It is ion for counsel to product not the of reason you anticipate to know that that if prosecution most not all knowledge need thoughtful to make deci witnesses are uninformed or liars as intrin- sions; knowledge required is intrinsic to reason. sic in preparation criterion for the facts, think, you Without do opportunity. and exer capa- one-time Self-corrective cised only arbitrary discretion becomes bility expensive, is not less but more v, thoughtlessness. Jones, People See perceived assured and efficient than initial Ill.App.3d which, perfection course, Ill.Dec. 511 N.E. the nature 1215, appeal 2d beings, denied 116 Ill.2d result, of human In unachieved. Ill.Dec. exception, persons N.E.2d 119 where pri- with rare who the court went further and ordered vately a new defended properly will not be de- post-trial fended, on calling based facts into pay since few accused can for the question probable guilt. required.3 costs smoldering, self-consuming protection 3. There is a cataclysm. rot in has accelerated the See Heilman, adjudicatory system the American which first Whitebread and The Counterrevolu- demands an unavailable level of cost investment tion Enters a New Era: Criminal Procedure Deci- counsel, performance During Court, and and, Burger attainment of defense sions the Final Term the achieved, imposes guilt responsibil- Puget if not Any 10 U. Sound L.Rev. 571 still ity unjusti- factually on client which in doubt should be invited to view The Murder fueled, politically ongoing (NBC Mary Phagan broadcast, fied. counterre- television Jan- against rights 1988), process uary volution and then read Frank v. representation. THE Finally, OF POST-CONVIC- DISMISSAL one last resort to TION RELIEF incompetency PETITION relief from or ineffectiveness by application counsel is ag- by the trial court as an Considered standard,” “concrete self-determin- gravation entry factor for of the severe ing in since the result denied constitutional sentence, Rickey Cutbirth’s continued right initially arose proce- from unintended Through that innocent.4 assertion he was appellate dural of trial default counsel. appeal, since efforts trial and unnumbered sup- he has continued a consistent effort WAIVER

port search for claimed truth. Intrinsic development of favorable hard evidence called, cases, This Wyoming gunpowder was a residue demonstration on to determine the essential characteris- that he had worn which could clothes tic of the limitation of constitutional expert specifically testimony invalidate post-conviction relief, under other than is- principal served essence of had sues which have been considered and deter- physical his conviction. This evidence was in prior proceedings, mined is to be based custody police lost within while a theory against unintended waiver authorities and to the available charged criminally individual. To post-conviction-discoveredexpert for his ex- previously acknowledged extent not in ra- context, perhaps amination. does not reason, apparent tionale and it is matter, subject since this court refuses to supposition functioning relates to the the factual facade of conviction to the cri- the counsel and not as a deliberative *14 countervailing tique analysis of of this controlled client decision. We find “waiv- recognized expert. er” described as: singularly legisla- I oppressed by voluntary am “The or relinquish- intentional of very right, tive function this decision in three ment of a known or such conduct specific particulars. The first is to substi- an of warrants inference the relin- limiting oxymoronic quishment tute of right, rules of dimension such or when one deny rights. dispenses The performance constitutional second with the of some- thing is to then of the criminal he is entitled or foreclose to act when one possession of any right, defendant attenuation of waiver derived whether con- contract, deficiency or full the unintended in counsel ferred law State, 243, (1914); 24, (1986), Ga. 141 80 S.E. 1016 Frank v. 107 S.Ct. 92 L.Ed.2d 774 as last 617, (1914); parte Ga. S.E. 142 83 233 Ex considered United States Court — Frank, 694, 208, Darden, U.S. -, Wainwright 235 U.S. S.Ct. v. S.Ct. 35 59 L.Ed. 429 107 309, 332, (1914); (1986), Mangum, and Frank 304 and as v. 237 U.S. 35 93 L.Ed.2d the current 582, (1915), subject program analy- special 59 L.Ed. of S.Ct. 969 Justice Holmes two television ses, broadcast, (CBS Hughes, dissenting. and Justice Neither the Ku West 57th Street television 30, 1988) (ABC January KIux Klan the Twenties and Thirties nor the and 20-20 television 29, broadcast, 1988). Italy, Germany, January totalitarianism of the Sovi The attributes following, system justice-delivery et Union those same decades and American were never provide emerged processes closely publicly question. without so failed O'Neill, guarantees. constitutional Cf. The innocent, guilty fairly or Whether convicted Bad, Good, Burger The and The Court: Victims’ by prosecutorial or victimized misinformation, zeal and witness Review, Rights a New 75 Model Criminal Darden executed March was (1984). Criminology J. of Crim. Law and 363 15, 1988, days opinion. four after release time, now new current with direct reference to evidence, ly improper penalize discovered it is valuable to consider It is for a court to defend saga ongoing of life or execution Willie ant who exercises the constitutional State, Fla., Darden, require Darden v. 329 So.2d 287 conviction assert innocence. Unit 704, (2d Cir.), Araujo, cert. 430 97 S.Ct. 287 cert. dismissed U.S. ed States v. 539 F.2d 498, 1671, 983, (1977); 593 L.Ed.2d Darden v. Wain denied 429 U.S. (1976); 97 S.Ct. 50 L.Ed.2d 751 (2d (11th Cir.), wright, Duffy, States v. 479 F.2d 725 F.2d 1526 cert. denied United 978, 299, 2688, Cir.), 94 S.Ct. 467 U.S. (1984), L.Ed.2d 882 cert. denied U.S. Lawrence, (1973); granted judgment Ida State cert. vacated 469 Specifically (App.1986). ho 730 P.2d 1069 applicable analogous Wainwright, status is Darden v. 106 S.Ct. factual Thomas — Cir.1966). U.S. -, States, (5th 368 F.2d reh. denied United

knowledge facts, (4th Cir.1951); material does or F.2d 763 and finally, in one something doing forbears to do apparent comparisons the more of prag which or the failure of forbearance to do matic result orientation from which is right, inconsistent with the protection by application, his intention rely upon it. The renun- Allen, 443, 558, Brown v. ciation, repudiation, abandonment, or 397, 436, 97 L.Ed. reh. denied 345 U.S. claim, right, privilege, surrender of some 97 L.Ed. 1370 opportunity or of the advantage to take where Frankfurter dissent delineated defect, of some irregularity, wrong.” “jejune predominated abstractions” which (5th Black’s Dictionary Law at 1417 ed. in denied relief recognized from the miscar 1979). riage justice.6 The inquiry factual theory context of the Allen, more obvi- Daniels easily under ously appreciated to be if considered with young stood. Two blacks in County, Pitt synonyms: North (hardly metropolitan area, Carolina

“abandonment, abandonment of a and where equiva known racial numbers were not right, abdication, abrogation, absolution, lently represented by voting capacity or acquittal, of relinquishing right, act tax-bearing status), asserted were convict clearance, release, discharge, deed of ex- ed of murder and sentenced to death. Seri cuse, forgoing, giving up, intentional re- questions ous constitutional were created linquishment, release, right, loss of relin- process. the trial Notice of quishment, renunciation, surrender, vol- filed, timely defendant, but counsel for untary relinquishment.” Legal Burton’s rules, accommodation to local tried to serve Thesaurus at 512 subsequent appeal papers on the state at torney Friday, forsaking on a but appro In the continuum of constitutional-inter priate mailing Monday delivery, mail est dissertations of by repeti waiver found arranged for delivery specifi document subsequent tion in philosophic citation and following cations on the overlay (although Monday when the individual fact situa tion, state’s presently law), neither is returned to his office from valid there *15 Friday-through-Sunday, are two idiomatic cases demonstrative of out-of-town philosophic bankruptcy weekend. Based on client-right Monday the belated by inadvertence, service, waiver attorney neglect, although mailing the Friday would ignorance.5 sufficed, The first cases were have the untimely by State service Daniels, 232 N.C. 59 S.E.2d 430 counsel for the convicted defendant led to (1950); E.D.N.C., Daniels v. Crawford, 99 appeal decision that the had been F.Supp. Allen, Daniels v. denying 192 waived as consideration of the in intelligent Thesaurus, 5. Intrinsic to the Legal supra, synonyms review of failure of In Burton’s representation "jejune," ignorance for Justice certainly is the Frankfurter’s word a word and under- seen, frequently obviously ap- standing incompetency of difference between plicable lacking in the context either dull or Obviously, incompe- and ineffectiveness. maturity: However, may likely tent be ineffective. to be (Dull), adjective "JEJUNE "bleak, boresome, require ineffective incompetency. does not In colorless, common, boring, agreement, regard, at least in this with the drearisome, flat, commonplace, dreary, dry, strong posture of now retired United States Su- flavorless, hollow, indifferent, insipid, monot- preme Burger, Court Chief Justice William there onous, ordinary, plain, ponderous, prosaic, many simple be evidenced in cases a lack stolid, tame, tasteless, tedious, thin, prosy, tiresome, education, aptitude, or technical skill of the undramatic, unenlivened, torpid, adequately perform the extraordi- unentertaining, unexciting, unimpassioned, narily demanding responsibilities of a trial or uninspired, uninspiring, unlively, unpointed, appellate counsel. This is not dissimilar from usual, vacuous, weak, unspirited, vapid, wea- every person the fact that not can achieve status risome professional as a player recog- basketball (Lacking maturity), adjective "JEJUNE "adolescent, opera singer. Estelle, nized Cf. McDonald v. callow, childish, babyish, imma- (5th Cir.1979), F.2d 153 where the terms "inef- ture, infantile, infantine, inexperienced, juve- "incompetency” nile, fective assistance” and were puerile, unfledged, unlearned” Burton’s interchangeably. used Legal Thesaurus at 300. (written by rejection Frankfurter), interests. In Reed trinsic constitutional Justice did Supreme clearly North determine that appeal, of the Carolina the denial of certio- legal opinion significance rari had no expressed its that a writ when a Court later request might corpus of habeas be had. As the made. error coram nobis was Jus court, tice Frankfurter then an step coram wrote next in the same error academical ly and adjudicatorily logical literate denied on that petition nobis was the basis dissent dissecting the waiver appeal, application jejune could not be a substitute — noteworthy reflect, abstractions. It is that accompanying pique with an note of considering Daniels patriarch pro as the federal resort to the courts was waiver, intrinsic, cedural that the substan progress. questions tive of coerced confessions and fed- corpus Habeas was dismissed discriminatory processes for selection of petitioners eral court available as “not jurors corrected, was thereafter history.” procedural F.Supp. on the procedural but appellate waiver 216, although additionally the federal question, abject absurdity, as an was im judge, “good boy” of the the nature old paled extinguished v. Lucey, Evitts adjudicatory process, read a decision that 387, 105 83 L.Ed.2d was not affirmed written and constitutional reh. denied 470 U.S. rights on a basis which substantive later White, (1985). See Federal reviewing text did either not interest Corpus: Impact Habeas the Fail Supreme circuit court or the writers in the ure to Assert Constitutional Claim at actually applicable. Court decision as Trial, 58 Va.L.Rev. 67 Appeals the Fourth Circuit Court of The second authors of de review, basis, on a two-to-one the denial fault, Thomp were the writers in State part affirmed in because of denial of sett, Ohio.App. 29 N.E.2d 967 Supreme certiorari the United States Ohio, Tompsett v. State Court from the North Carolina (6th Cir.1944), F.2d 95 cert. denied 324 U.S. decisions, Court and further affirmed as a L.Ed. waiver appeal failure initial when which, reason, some it is addressed in with comply “lost failure reason- proba actually stated facts that defendants able rules of the state court.” 192 F.2d at caught bly guilty up were not but in a were noteworthy 766. It is as analyzed very false Not to be bad identification. dissent: considered as an issue was the clear failure attempt part “There is no legal counseling, including of reasonable State of pending North Carolina in the documents; timely failure to file but appeal to not a show there was rather, by acqui articulated the waiver gross violation *16 escence, “you have to raise hell with rights in prisoners the court. during your lawyer principle trial” as in proceeds The argument state’s the jury of voked to even include waiver trial: ground appellants right any that the lost concept of that “The this rule is the lack to a review of the action of the trial incompetency of skill the attorney of of County attorneys Pitt when their imputed the defendant who em- failed meticulously to conform lo- to the him, ployed attorney the acts of the thus procedural requirements.” cal Daniels becoming those of his client and so rec- Allen, Soper, 192 F.2d at Circuit court, ognized accepted by the unless Judge, dissenting. repudiates them defendant mak- Daniels then to the came United States ing to the known court at time his Supreme Court for consideration two with objection to or lack of concurrence in where, in 118-page opinion other cases A defendant seemingly them. cannot ac- Allen, Reed, of Brown v. Justice quiesce attorney’s in his defense of him court, writing procedural and, for the found the of it or his lack after trial has defendant, defect in A majority adversely decisive. of resulted obtain a court, opinion distinction to the of because of incompetency, new trial negligence, fraud or right protection unskillfulness of his damental as seen Jus- attorney.” Tompsett Ohio, Engle Isaac, v. State tice Brennan in 456 U.S. of 107, 144, 146 F.2d at 98. 102 S.Ct. Nebraska, considered L.Ed.2d since Young The 93 L.Ed. 1333 Tompsett, Ohio dilemma Ragen, Comment, and more (1949), developing The Postconvic- comprehensively and Case v. particularly history dissenting: reh. denied 457 U.S. thy sult-oriented, # “The ^{[*] [*]} exercise in Court’s analysis (1982), * * * represents judicial Justice Brennan completely a notewor- activism re- Ohio, tion Review Dilemma in 44 Ohio Unfortunately, absolving lawyering justifies applica- St.L.J. 530 theory procedural failure the arcane of Wyoming present to the of tion law and the default, prospect I see no opinion in the opinion: court’s go this court that we the direction of Relating “In its decreasing frequency Standards to Post-Con- of these constitu- tional-right forfeitures, viction Remedies the go American Bar Asso- or that we for- distinguishes promotion skill, ciation between waiver as a professional ward is, finality judgment, rule of by shifting that is- the burden of constitutional presented specified protection sues not at a time or to our state arguably courts as specified way in a justified are said to have been extent that we in the state waived, principle party and the judiciary that should be best situated to de- can, binding effect, a criminal action frequency procedural crease the defaults knowing make a promote professional and informed choice to and to skill. Post- forego rights. pro- Dilemma, certain The former is supra conviction Review cedural, Comment, corollary footnoting while the latter is a Federal Habeas Cor- creating right. signifi- the law The pus Review Unintentionally Defaulted sharp Claims, cance of the distinction comes into Constitutional 130 U.Pa.L.Rev. focus when a federal constitutional University Pennsylva- postconviction is considered in a state nia Comment observed: proceeding: what constitutes a waiver “Analysis why procedural defaults oc- the sense of voluntary relinquishment suggests attorneys cur individual question is a of federal constitutional could eliminate at least some of them. law, scope prior judgment while the of a example, For if attorney could work question is a of state law.” longer ceasing hours without to be effec- Id. at 544. tive, attorney could avoid those de- “Notwithstanding dispari- federal-state by spending faults caused too little time ties, closing per doors of both the Ohio case: the simply put could bespeaks policy and the federal Attorneys courts more time. could likewise proceedings judicial values efficient avoid those defaults caused lack highly scrupulous knowledge more than either the legal of recent developments protection by undertaking of individual or the self-imposed continuing safeguards regimens, maintenance within the education such reading pro- process. legislative criminal journals attending Without ac- fessional semi- *17 tion, the immediate in- results will be nars.” Id. at 1006. risk

creased that the will innocent be branding “Rather than as ineffective the attorney’s convicted and that a defense any of attorney assistance who defaults error, inexperience, diligence, lack of or claim, a constitutional valid the courts produce tactical decision will irremedi- likely to find that some unintentional rights.” able forfeiture of Id. at 567. defaults do not constitute ineffective as- of sistance counsel.” Id. at 1009. texts, As illustrated in other the federal system years that, direction in recent is to analysis a The substance of the is in disregard using (or result-oriented of and fun- a basic reasonableness standard its concept, should the than equivalent), ineffectiveness be de- rather reliance disingenuous in the terms of normal conduct: word “waiver.” fined courts inef- “The could take selective legal precedence If the idealism of in approach ways. three fectiveness relevant jurisprudence, pertinent it is First, standard, they could enunciate spoke note that Black Justice in similar reasonableness, against as which such years ago: terms 50 “ * * * judged; procedural defaults be if would A is ordinarily waiver an inten- the default is unreasonable then the at- relinquishment tional or abandonment torney provided has ineffective assist- right a known privilege. or The determi- Second, identify ‘spe- ance. a court could nation of whether there has been an in- rights, which cial’ default of would al- telligent waiver of the to counsel ineffectiveness; ways constitute for ex- case, depend, upon must in par- each the ample, say the court could that default of ticular facts and circumstances surround- always fourth amendment claim valid ing case, including background, that the in ineffectiveness a case in constitutes experience, and conduct the accused.” prosecution the introduces the Zerbst, Johnson v. 458, 464, Third, fruits of a warrantless search. 1019, 1023, 82 L.Ed. 1461 protect courts could the reviewing In development post- the against by requiring the default relief, Larry Yackle, conviction W. Postcon- employ of the tools states certain at Remedies, pp. viction 16-17 a foun- the state’s command to decrease the inci- text, dational observes: dence defaults.” Id. at “ * * * many states habeas relief [I]n prisoner’s was the denied when claims present judicial in difficulty analysis not, been, might were but have raised disposition in a and is not raised case where was, trial or on direct review. This prior appeal, if any, examined constitu- course, an inferential rest waiver tional issues and relief as then theory reading prisoner’s procedur- — decisis, judicata, would constitute res stare implicit al default as an waiver of the estoppel, preclusion collateral or issue for a claim, or, indeed, opportunity litigate post-conviction-relief pro- later-instituted truth, In underlying right itself. ceeding reanalyze which could only what do theory had little to with waiver and already had been determined first trial much to do forfeiture.” Weare here with what appeal. faced Historians, sociologists, philosophers not considered and not decided opine that we of this democratic nation are as the essential examination in this liti- mirages, wont to facades or create hero gation, my dissent. images reality. as It is substitutes then, fact, practical

In the concept terribly unjusti- the nature of such a most appropriately fallacy waiver more defined as fied criminal defendant ignorance, action, neglect, mistake, aptitudes, unintended condemned attorney. competency Originally, defective decision of the It of his counsel. ignored, principle agency should the words of arose out of theories of Frankfurter, “jejune Justice abstraction.” the client won lost based on what Allen, own attorney, agent, did or Br 344 U.S. at as his did not do. However, recognized application principle at 436. It must also characteristics, proper concept word that civil law choice has different agent synonymous. particularly are not so can and waiver reali since be liable liability ty, justified principal most the decisions made are for accrued caused when, strategic fact, empiri by negligence recovery choices measured damage. context, cally, standpoint from the the welfare of But in do criminal we client, they represent recog say incompetent waiver. In attorney goes that the *18 court, presented by jail of the thesis to serve sentence for improp- nition appropriate supply erly represented the essence An it is defendant. extended 1276 comprehensive analysis of waiver is cess to by pro- decide constitutional issues Comment, Criminal Waiver: The viding found remedy a state to minimize

Requirements Participation, Personal proceedings state criminal issues in federal Competence, Legitimate State Inter- under the United States Constitution. Ra- est, (1966). Cal.L.Rev. Remedies, Post Conviction per, Wyo. (1965). L.J. 213 Most states have some what, then, logic, So as a fiction without form of relief mechanism in- reason, justification, or is now to be substi- (as volve Wy- different characteristics does tuted for contention that conduct of the oming), including statutory adoption, post- constitutional-rights constitutes proceedings conviction by supreme court Only if strongest waiver the client? rules, augmented or or uti- Washington, criteria of Strickland v. differentiated corpus by lization of habeas statute or rule. post-conviction-relief States with reh. denied statutes include, (1984), example: Colorado, Idaho, for similarly or Illi- consti- nois, Iowa, Louisiana, Maine, nonresponsibility, tuted legal Maryland, insulative Montana, Nebraska, competency Nevada, protection Mexico, theories can be New breached, Carolina, Dakota, Ohio, will the North process individual have North Okla- homa, guarantees. Oregon, afforded those Pennsylvania, Island, Rhode never, seldom, Carolina, Almost Tennessee, or at least South does a and Wisconsin. knowledgeably Among criminal defendant waive the states which utilize a court anything. rule, The igno- decision intent or solely sometimes in conjunction or doing rance in neglecting statute, are, or examples: Alaska, attorney. horrifying example, Arizona, As a Arkansas, see Colorado, Florida, Ida- State, Laing supra, ho, 746 P.2d 1247. Illinois, Indiana, We Kansas, Massachu- reach the Rosenberg, status described in setts, Utah, and Larry Wisconsin. See W. Jettisoning Fay v. Noia: Procedural De- Yackle, Remedies, Postconviction by Reasonably Incompetent Coun- A comprehensive analysis at 65. faults § sel, 62 Minn.L.Rev. charac- justifications divergences among terizing attorney-client relationship in a post-conviction-relief processes state criminal case as one which the servant is found in Documentary Supplement, State omnipotent and the master subservient. Post-Conviction Remedies and Federal Johnson v. Cf. Wyo., 562 P.2d Corpus, Habeas Mary 12 Wm. & L.Rev. court, discussing where this counsel, ineffective observed that the client Wyoming post-conviction The statute had the plead to determine whether to by Wyoming legislature first enacted guilty, trial, jury waive a testify, Wyoming 1961,7 Ch. S.L. of now areas, including other the decision “[a]ll 7-14-101, W.S.1977, past has continued § witness, whether to call or not to call a renovation, through revision, Title 7 counsel, in the control of the defendant’s essentially original in its form. Criteria for who is the master proceedings.’’ relief include: (Emphasis added.) (a) felony conviction, incarceration for a 7-14-101(b), W.S.1977; § POST-CONVICTION RELIEF (b) STATUTES (5) commenced within years five conviction sentencing, purposes legislative state enact- 7-14-101(c), W.S.1977; § judicial ment or promulgation of rules on post-conviction-relief proceedings (c) any was to claim of substantial denial of con- defined, establish a pro- noncumbersome stitutional orig- not raised in the Rights,” Entitled "Prisoner's Constitutional the Constitution of the United States or the was: both, Wyoming, State of have been denied provide remedy persons "AN ACT to proceedings or violated in they in which were imprisoned penitentiary, convicted and in the convicted." rights guaranteed who assert that to them *19 waived, petition post-conviction process or an amended is ized inal is excised State, Bibbins Wyo., repeal, state, P.2d as it has been in one South Dakota, with concurrent introduction of ac- corpus tivated habeas and (d) reinstated coram proceedings “that in the assertion recognized nobis to the address in his constitu- which resulted conviction there No- Comment, Coram requirements, tional of was a substantial denial Remedy: bis as a Flight Post-Conviction under the constitution the of United Phoenix?, Wyoming, (1987), States or state of S.D.L.Rev. 300 of both,” 7-14-101(b), may which invoke “an W.S.1977. increase confusion § and of obfuscation an area of the law al- pro In Wyoming, embodied within ready sufficiently complex ambigu- and ceedings only and from the discernible case article, ous.” In the the author discusses derived, Hopkinson rule for which the what he vaporous as the describes and 43, Wyo., 664 P.2d denied 464 cert. amorphous of remedy common-law coram 262, U.S. less-than-perfect nobis as the replacement. (1983), is a there further criterion that Id. at 321.9 proceeding ancillary plea to initial disposition or final and not an conviction constitutional-right

independent, ascertain REQUIREMENTS HISTORY OP STATE proceeding. ment improvidence The of TO INITIAL AVOID FEDERAL decision, specifically deny ap made COURT REVIEW plication peremptory challenge of a other The as adjudicatory basic law stan- change judges, wise available not here relating dard adequate to the absence of an presented. deny remedy corpus state federal habeas Young Ragen, designed supra, Post-conviction relief was to was defined Case v. Nebras- dispose of of claims a constitutional nature and ka, on the merits not with technical-issue 85 S.Ct. 1486. pro- avoidance seem some Whatever has occurred within the tumultu- immediate, easy usually vide an but ous answer counter-movements since the ba- to prolong judicial inquiry.8 serves sic as standard remains uninhibited deter- magnified special- mining process Confusion is when the if state avail- context, Although 8. cient it stated in a different I as to constitute denial of federal constitu- Wright differ from Professor Charles Alan in his tional to effective assistance counsel— of Dooker, of A book review William F. Constitu- Court cases. (1980), History Corpus tional Habeas in Habe- Future, Corpus: History Its and Its 81 Mich.L. enacting version 9. the differentiated Illinois (1983), predecessor Friendly, relief, Rev. 802 The post-conviction legisla- Wyoming Amendment Tomorrow: The Case Con- opportunity adopt ture has not taken Fifth Change, stitutional 37 U.Cin.L.Rev. original act uniform or the most current text observing history post-con- that the adopted in See Uniform Post-Conviction adjudicatory developments viction Act, U.L.A., relief (1966) Procedure U.L.A. 9B society only absorbing law in a Procedure, civilized is not together Criminal with Law and understanding but also a vade mecum for philosophic backdrop 1987 Pocket Part. present status American law. Post-conviction place post-conviction carefully relief is aspects relief in all is also not unnoticed in reviewed in IV ABA Standards Criminal articles, including Justice, A.L.R. treatment Annot., current type Ch. 22 An omnibus estoppel 18.3, 2 A.L.R.4th Waiver process is recommended Standard Na- cases; Annot., incompetent legal representation (National tional Standards Prosecution District Association) (1st 1977). A.L.R.Fed. Modern of Rule as to Attorneys Status ed. Standard Representa- 6.5, Test in Federal Court of Advisory Effective National Commission on Criminal Counsel; Annot., tion 13 A.L.R.4A Ade- Justice Standards Goals accommo- quacy representation recog- of defense counsel’s dates All a somewhat different standard. remedies; regarding post-plea criminal process client nize the need of the corrective with Annot., 583, Adequacy scope 15 A.L.R.4th of defense difference or as indicated. the deci- Until case, representation Wyoming counsel's of criminal client re- sion in this statute more remedies; garding nearly appellate postconviction followed American Bar Association Annot., decision, attorney's probably When is standard. After this does representation any. comply so criminal defendant defi- *20 262, 215, liberty able to issues L.Ed. S.Ct. 10 consider under the 71 A.L.R.2d in more, United States Constitution criminal con- In (1951).] many 784 ... viction, exhaustion of state remedies is not recognized procedures by state law presented cesses in in Chief Justice coram ognize the difficulties with which the Illi- required federal adequate state state 114 “ * * * The doctrine of exhaustion of Ragen, [64 cases remedies, nobis courts, the nature determined: and cited, presupposes Vinson, writing scrupulous resort 448, Ex remedy immediately parte which this 88 to the federal L.Ed. 572 habeas exists. We rec- adherence of Hawk, for the court that Court corpus available. 321 (1944)] some U.S. pro- has all cess.’ all generally productive of turn, in state and federal courts and was gations The result was that failed to obtain failed to most ^[*] persons testing increased the number of numerous in the state courts. provide ^[*] constitutional issues concerned with the ^[*] hearings genuine important ^[*] prisoners frustrations opportunities on their alle- ^[*] petitions This, types. often pro- ^[*] in adapting

nois is faced in Court hope “I that the various States will fol- procedures available state to the require- Illinois, Nebraska, low the lead of Mary- prisoners given ment that some clear- land, Carolina, Maine, North Oregon and ly they defined method providing Wyoming pro- this modern rights. raise claims of denial federal testing cedure for federal claims in the Nevertheless, requirement that must be state courts and thus relieve the federal Ragen, met.” 337 Young v. U.S. at 238- everincreasing courts of this burden.” 239, 69 S.Ct. at 1074-75. added.) (Emphasis 339-340, 381 U.S. at 85 S.Ct. at 488-89. Re-emphasized Nebraska, in Case v. su- pra, by per opinion was stated curiam Brennan, concurrence, Justice with concurrence of Justice Clark in recognition Sain, of Townsend v. 372 U.S. recognizing Ragen contribution 293, 745, (1963), 83 S.Ct. passage postconviction of state reme- Noia, 391, Fay 822, v. 9 372 U.S. 83 S.Ct. dies: (1963), further admonished: “ * * * 'The doctrine exhaustion of “None can view satisfaction the remedies, state to which this Court has channeling large part of a of state crimi- required scrupulous adherence of all nal business federal trial courts. If federal presupposes courts ... that some adequate procedures, presently state all ” adequate remedy state exists.’ 381 scarce, too generally adopted, were much 338, 1487, quoting U.S. at at would be done to remove the irritant of from Young Ragen, v. 337 U.S. at 238- participation by the federal district 239, 69 S.Ct. at 1074. procedure.” courts in state criminal “Strangely enough there has been little 345-346, U.S. at 85 S.Ct. at 492. light necessity thrown on the for more apparent Ragen It is historically postconviction effective remedies spring Case did not uncultivated from bar- States. Burton 1958 the Committee unplowed ren and terrain. Justices reported preliminary aout draft of find- Hughes, Holmes and in the 1915 dissent in ings in which it stated " Mangum, Frank v. 237 U.S. 35 S.Ct. post-conviction ‘that the state law of recognized L.Ed. 969 process states many wholly in- constitutional-rights required violations in- adequate cope with the demands tervention of federal court examination. being placed now it. In some majority That dissent became standard in jurisdictions prisoners altogether were Dempsey, Moore v. precluded from direct access to the Kansas, courts. L.Ed. 543 and then the safe- [Cochran guard obligation liberty L.Ed. S.Ct. 1068 of the feder- Cook, Dowd v. judiciary intrinsically U.S. 95 al woven into the particular remedy society by our Justice Black case afforded fabric Zerbst, supra, 304 U.S. Johnson practice proves state law unavailable * * * 466-467, 1019, 1024:10 inadequate, seriously a federal “ ‘ * * * pursu- prisoner custody petition court should entertain his [A] judgment of ant to the final a state corpus, else he would be remedi- habeas jurisdiction may judi- have a of criminal less.” 321 64 S.Ct. at 450. U.S. inquiry in court of the cial United also, Ragen, White See very into the truth and substance States *21 978, 1348, S.Ct. 89 L.Ed. reh. denied 326 detention, although it of the causes of his 807, 133, (1945).11 U.S. 66 S.Ct. 90 L.Ed. 492 may necessary to look behind become beyond the record of his conviction and FROM YOUNG v. RAGEN TO WAIN- jurisdic- sufficient extent to test the to a WRIGHT v. SYKES CAUSE proceed the state court tion of AND PREJUDICE against judgment him.... Once the Court had defined the open “‘... it is to the courts right federal to test state conviction application

United States corpus, habeas the arena of conflict em- corpus beyond to look writ of habeas bodying state-system procedural inquire very default forms and into the sub- Ragen matter decision of stance of the moved 1949 to waiver, by-pass, new examinations recognized in principle, This further forfeiture, any as an attack on conclusion- States, 315 U.S. 60, Glasser v. United 62 ary examination in the federal court of the 457, 680, 86 L.Ed. reh. denied sub S.Ct. claimed constitutional violations which had States, 315 U.S. nom. Kretske v. United court This occurred state conviction. 827, 629, (1942), 1222 62 S.Ct. 86 L.Ed. Battle campaign, reaching now specifically emphatically applied more status, Wilderness appellant is where Cut- Hawk, 114, parte in Ex 321 U.S. 64 S.Ct. birth, case, in this seeks to avoid initial 448, (1944): 88 572 L.Ed. “ * * * right deleted forfeiture his constitutional [Wjhere resort to state court proceeding, from the state court which la- a full and remedies has failed to afford may deny ter further waiver to establish adjudication fair of the federal conten- protection federal of United raised, future either because the state af- tions * * * rights. Consequently, in the constitutional remedy fords no or because States right specific right issue considered “The to counsel is a fundamental 10. The constitutional counsel, defendants; fairness, right was constitutional to assistance criminal it assures the Alabama, 45, following Powell v. 287 U.S. 53 adversary pro- legitimacy, and thus the of our * * * 55, S.Ct. 77 L.Ed. 158 and Patton The essence of an ineffective as- cess. 253, States, 281 U.S. 50 S.Ct. United unprofessional sistance claim is that counsel’s time, (1930). In more L.Ed. 854 recent upset be- errors so the adversarial balance dissertation constitutional calender invokes prosecution that the trial tween defense and coun- this means effective assistance of whether and the verdict rendered was rendered unfair sel, counsel, just pres- assistance of effective Morrison, suspect.” Kimmelman v. 477 U.S. participation ence and moderate of someone 365, 374, 2574, 2583, 106 S.Ct. practice denial of admitted to law. The caucus perfect representation expectable is to censure right to counsel is the to effective legal responsibility inept incompetent. as counsel, appeal. and extends to assistance of Washington, supra, Cf. Strickland v. 687, 466 U.S. at supra, Lucey, U.S. Evitts v. proper standard for 104 S.Ct. at "the attorney performance reasonably is that of ef- assistance," conversely however then fective 11. It is to be observed that charismatic stated, range competence “'within the de- constitutional-guarantee sloganistic attacks on Ap- attorneys manded of in criminal cases.’” protections States Constitution as of the United majority opinion parently the author castigation Court are un- of the Warren difference, did not know the and cases that case philosophy application informed unless the spawned failed to delineate between since have Holmes, Hughes, by Justices of the Constitution lawyer lawyer lawyer, concepts is a that a is a disinherited. lawyer and Vinson are first made mistakes from or that the implied may forfeiture judicially decreed. “ * * * was not development what considered the state court Our of the law of corpus attended, waiver also be federal habeas default has been seemingly, backing foreclosed from federal court constitutional with some and fill- Noia, protection. ing.” Fay v. 372 U.S. at S.Ct. at 834. Allen, Following Brown v. substance, the Warren court analyzing comity case re corpus procedural default,

examination federal habeas abstention related to deci- only fleeting view of the state court constitutional there was born the condiment introduced, process by-pass: sional and the 1962 of deliberate tion and the ferred forfeiture grounds diate and al elements these federal versed on federal court tablished criteria and truth-serum-derived conviction. The (1963), trilogy States, state courts Fay seminal decision of Gideon v. 2d send, which involved a barbiturate and send v. terial of newly discovered adequate to any cant a full and fair fact ing; (4) oped employed by the state court hearing; as tion dispute “ * * * Fay, a fact did not afford the habeas post-conviction reason it now is not whole; (3) Noia, at the which followed, facts many Sain, Justice If were not resolved there probably continues, (2) failure to fairly supported by supra; (1) for criminal post-Ragen state-court resolved court adequately were not the state factual determina- afford appears 372 U.S. at times since cited: as accommodative to the the merits of the factual Townsend v. decision. Brennan a substantial hearings, including and Sanders v. United fact-finding procedure indeterminate coram-nobis confession, a evidence; (5) if at rights that the state full and fair hear- inquiry hearing; requirements hearing.” waiver defense. considered deni- Court 313, all, That to counsel in state convic- Wainwright, Sain, after state 83 S.Ct. the record allegation as an the state standard, there es relief on was interme- 10 L.Ed. status, Town- 446-447, (6) supra; Town devel- appli- trier ma- for six in- re at reh. denied court tween state substantive tioner does not Nor at for federal question.” Fay v. In state forth understood that Fay v. question by the federal courts on er bar “ * * * counsel not *“ * * no 846. evade the limitation has « * * * eral defenses in the state courts. the exigencies of federalism warrant a *22 ground corpus a doctrine of forfeitures under the federal courts’ est “A practical appraisal of the state inter- 439, Henry stricter rule is a realistic ^[*] here involved waiver recognized: guise petitioner. discretion to does deliberately sought depends procedural grounds. 85 S.Ct. Noia, independent [A] 83 S.Ct. at 849. At aii rule. We [Ijmportant 380 whereby ^[*] orderly adjudication v. affecting state court’s litigant’s procedural (1965), applying participated 372 U.S. at Mississippi, U.S. events 564, 567, * automatically ^[*] the considered choice the standard here deny plainly * * fully grant 926, the federal which determination enforcing federal we A choice made ^[*] relief to one who 85 S.Ct. finding does not 13 L.Ed.2d distinguish 433, adequate wish it Noia, 379 U.S. followed, grounds ^[*] subvert rights necessity.” 83 of his fed- bar relief. * * * on habeas judge 372 U.S. defaults of waiv- S.Ct. habeas, 878, clearly justify Surely state- ^[*] peti- 443, that 408, is a put has be- 13 at precipitated procedural philo- proceedings prevent default in state do not vindi- Fay was founded in in- cation of his sophic conflict. federal unless the relinquishment, on compliance tended therein introduc- State’s insistence with its noted, tively legitimate and since to be observed em- rule serves state phatically: interest.”

1281 again by-pass application pro- asserted earlier for Deliberate federal court for forfeiture. ceedings involving foundation federal court convictions States, 233, in Davis v. 411 United U.S. 93 Following Nebraska, supra, Case v. 1577, S.Ct. 36 L.Ed.2d court, 216 That 1965, and the end the Warren case, court, in defining showing Burger embodying changed majori- absent a ty, Fay, underly- (attorney annihilated but not on the cause for defendant failure to Ragen, ing thesis of which has survived in challenge composition grand jury Building upon full effect. the abstention trial) prejudice” before but also “actual id. Harris, comity of Younger cases v. 245, 1584, 93 S.Ct. at decreed that a 37, 746, 401 U.S. 91 S.Ct. 27 L.Ed.2d 669 right to reversal was not demonstrated. (1971); Mackell, 66, 91 Samuels application of Davis to state cases had 764, (1971); 27 L.Ed.2d 688 Boyle S.Ct. been foreshadowed Francis 77, 758, 91 L.Ed. Landry, U.S. S.Ct. Henderson, 1708, U.S. (1971); Ledesma, 2d 696 Perez v. (1976), holding pretrial L.Ed.2d (1971); 91 S.Ct. 27 L.Ed.2d 701 object grand-jury composition failure to Stein, Dyson v. U.S. 91 S.Ct. waiver, in state court constituted as would Byrne v. Kara the identical result initial federal lexis, 401 U.S. proceedings. Consequently, by court deri- followed Preiser v. Rodri- operational vation of an rule of the federal guez, 411 36 L.Ed. U.S. equality from Davis to and no more newly 2d 439 constituted court Henderson, application pro- a rule of opportunity Fay had to recede Es- gradu- cedural default in all character was Williams, telle v. *23 Sykes. to ated What was cause for forfei- 1691, 126, 48 L.Ed.2d reh. denied 426 U.S. ture with unintended waiver was not there 954, defined or in more recent cases established in finding unknowing by waiver defendant specificity, although general with stan- accompanied by ignorance, either incom- dard adduced is that the defendant is im- petence, or cowardice of counsel from trial paled with default for unintend- appearance jail garments in in admitted arising negligence, from the ed forfeiture Brennan, rights. violation of constitutional ignorance, incompetency of counsel un- or dissent, recognized emergence by proof relief of cause and less afforded implied waiver of constitutional and prejudice. Cause definition is seldom the demise of the Johnson v. Zerbst volun- found, since the misadventure of the attor- tary-waiver test. Thus was cultivated the is, cases, ney’s conduct in these unintended. present retreat from substantive-issue deci- ‘cause’-and-‘prejudice’exception of “The incompetency sion to or ineffectiveness-of- adequate the Francis rule will afford an inquiry, pitfalls counsel all the and think, guarantee, rule idiosyncrasies developed. be we that the will soon to Washington, supra, prevent 466 U.S. court from Strickland v. a federal habeas 668, 104 2052; v. Cron- adjudicating S.Ct. United States for the first time the federal ic, 648, 104 80 L.Ed.2d S.Ct. of a defendant who constitutional claim adjudication in the absence of such an miscarriage of be the of a will victim adjudica- then arrived The watershed precise may content justice. Whatever some, including perceived by tory plateau, cases, given we those terms later writer, adjudica- to be characterized holding further feel confident in without aberration, oxymoron where the devel- tory here. they elaboration that do not exist Wainwright Sykes, oped full-flower explanation Respondent has advanced no U.S. trial, object at for his failure to whatever reh. S.Ct. unfolded, and, the trial proceeding as the Fay where the deliber- L.Ed.2d faulted for judge certainly is not to be superceded by-pass by-passed was ate failing question the admission of the present rule cause substitution Wainwright v. prejudice which had been enunciated confession himself.” 90-91, Sykes, U.S. at 97 S.Ct. at where failure to object to the 2508-09. constitutionally prescribed burden-of- proof/self-defense instruction con- Factually, recognized the court there sidered. Forfeiture of right, constitutional statement that of fact the obvious and es- concept ignorance, direct of counsel ne- responsibility object sential of counsel to glect, incompetency, was directly challengeable statement introduction was presented justification as a for decision. not met. Demonstrating something applied less than trial, during however, “At no time knowledge processes, of court the rule any admissibility respon- is advanced: challenged by dent’s statements his coun- “We note at the ground respondent futility on outset that the sel that had presenting objection state warnings. not understood the Miranda courts cannot judge alone constitute cause for question Nor did the trial their object failure at trial. If admissibility on his own motion or a defend- hold a perceives ant factfinding hearing constitutional claim and bearing is- may believes sue.” 433 at the federal 97 S.Ct. at 2500. find favor courts, may bypass he the state concurrence, Burger, spoke Justice to a simply courts they because he thinks will differentiation of intrial decision where a “ unsympathetic claim. Even a ‘knowing intelligent simply waiver’ previously rejected state court that has inapplicable.” Id. at 2510. argument decide, Brennan, in Justice joined dissent Jus- reflection, the contention is Marshall, analyzing tice both the court’s added.) (Emphasis valid.” 456 U.S. at opinion concurrences, recognized 130, 102 S.Ct. at 1573. question: essential Judicial activism and constitutional deni- “Punishing lawyer’s unintentional er- gration were well illuminated in comment by closing the rors federal courthouse by Justice Brennan: door is both client a senseless and “ * * * my view, misdirected method deterring Sykes standard slighting misguided insupportable of state in any rules. It senseless unplanned because if context. But it is to be unintentional ac- suffered to *24 all, any tion of generally subject kind is not exist at it should be limited to the and, deterrence; arguable peripheries of process: the extent that it the trial hoped It that a threatened sanction ad- should be allowed to insulate great- judicial dressed to all the defense will induce review all violations of the part rights er care and caution of trial most fundamental the accused.” lawyers, forestalling 151, thereby negligent 456 U.S. 102 S.Ct. at 1584. error, potential conduct or loss of all 152, Frady, United States v. 456 U.S. valuable state remedies would suffi- 1584, 816, 102 71 L.Ed.2d S.Ct. reh. denied cient this end. And it is a misdirected 1001, 2287, 456 U.S. 102 S.Ct. penalization sanction because even if the date, 1296 of the same afforded a incompetence or carelessness will en- rejecting plain-error similar in result the courage legal thorough more training Ross, 1, sis for reversal. v. Reed 468 U.S. trial preparation, appli- the habeas 2901, (1984) 82 S.Ct. L.Ed.2d 1 fol cant, opposed lawyer, hardly as to his By lowed. review of trial-time failure proper recipient a penalty.” such unconstitutionality raise jury of a in added.) 113, (Emphasis Id. at 97 S.Ct. at proof years struction on burden of several any challenge before successful of the rule while, Finality made, for a until the inevitable had been the instruction at trial time proved reaction restoration of by had been state court in protection which will sometime century. hereafter North Carolina for a Mullany v. jurisdiction, Wilber, in 684, 1881, occur the federal came in 421 U.S. 95 Isaac, supra, 107, (1975) Engle yet v. 456 U.S. years away, 102 L.Ed.2d 508 six Brown, (10th invalidate the Dutton v. Cir.), served to reversed bur- 812 F.2d den-of-proof instruction. Cause Maynard, Dutton v. preju- cert. denied sub nom. — Engle Frady by U.S. -, 116, under dice were found 108 S.Ct. 98 L.Ed.2d 74 remand, Shulsen, Andrews v. (1987); the circuit and the Su- 802 F.2d 1256 affirmed, (10th in States, opinion Cir.1986); v. United preme Court Wolff Brennan, (10th Cir.1984); with the novelty issue as Hux v. Mur 737 F.2d 877 Justice phy, Rehnquist, (10th Cir.1984), strong Justice in 733 F.2d 737 cause. dis- overruled Wiley Rayl, v. grounds contended on other nom. agreement, trial counsel sub (10th Cir.1985). anticipated 767 F.2d 679 change should have the later United Supreme the broad-based States instability subject The on the in the Unit- proof. decisions on burden of Court ed States Court is demonstrated by three even more recent cases decided Procedural default was discerned Jus Murray past years. within the two involving tice Stevens a case failure of Carrier, 478, 2639, 477 U.S. 106 S.Ct. diligently ques to more counsel attack a (1986) L.Ed.2d 397 reversed en Witt, banc juror, Wainwright tioned 469 U.S. decision of the Fourth Circuit in Carrier v. 844, 105 S.Ct. 83 L.Ed.2d 841 Hutto, (4th Cir.1985), 754 F.2d 520 where although Rehnquist opinion decided the the omission error of defense counsel in death-penalty-qual substantive issue of the apprisal state court was in juror. ified The Stevens ratio decidendi claimed error of judge denial the trial strategy attorney sounded intentional defendant’s to examine victim’s state- of client.12 See Sand forfeiture of majority ments. The concluded that omis- Montana, strom v. 442 U.S. 99 S.Ct. sion “inadvertence” defense counsel (1979); Patterson v. rather than deliberate choice as some York, kind New 432 U.S. planned strategy would not itself con- Wilber, (1977); Mullany v. L.Ed.2d 281 procedural stitute cause within the default supra; and discussion of Justice Marshall Engle: thesis of involving dissent in denial certiorari counsel, then, constitutionally think, Strick question affected “We Washington, supra, land v. cause for a default does not Morris, 2055; Wagev. 104 S.Ct. at turn on whether counsel erred or on the L.Ed.2d 218 kind of error counsel have made. denial, long and further in certiorari represented by Justice So as a defendant is Ohio, Brennan Moran performance counsel whose is not consti- tutionally ineffective under the standard Sykes importunity Washing- Strickland v. implied forfeiture in- established ton, voked is not inequity counsel decision unnoticed we discern no opinion in Tenth requiring Circuit comment. See him to bear the risk of *25 462-463, Witt, Wainwright increasingly expansive 12. In 469 U.S. at Court’s ‘questions definition of calling application 105 S.Ct. at Justice Brennan stated: of fact’ for presumption of correctness of 28 U.S.C. "Today’sopinion product for the Court is the 2254(d) § to thwart vindication of fundamen- saddening of a confluence of three of the * * * rights tal in the federal courts. These disturbing most trends in our constitutional trends all reflect the same desolate truth: we jurisprudence respecting the fundamental impor- have lost our sense of the transcendent rights people. of our The first is Court’s Rights society. tance of Bill of to our unseemly eagerness recognize strength to * * * We have lost too our sense of our own State's interest in efficient law enforce- ‘guardians’ rights. role as Madisonian of these expedient ment and to make sacrifices * * * juries death-qualified Like the that the of the criminal defendant * * * prosecution can now mold to its will to en- to such interests. Court's ously unquestioned The second is the victory, hance the chances of creasingly this Court in- increasing previ- disaffection with the adjunct acts as the the State principle, by endorsed ev- Court, prosecutors facilitating ery severity its Member of this that of its ex- 'because efficient irrevocability, penalty pedient irrespective conviction and execution the death qualitatively any pun- guarantees. different from the Constitution’s other fundamental ishment, accompanied by only hope day and hence must be One can pass. (Emphasis that this too will soon * * * added.) unique safeguards ...’ The third is the * * * error that results procedural in a cause-and-prejudice default. standard.’ Instead, think we that the existence of pretend we that But do not this will for procedural cause a default must ordi- always Accordingly, be think true. we narily prisoner turn on whether the can case, extraordinary in an that a where objective show that some factor external probably constitutional violation has re- impeded to the defense counsel’s efforts sulted the conviction of one who is comply procedural with State’s innocent, actually a federal habeas court attempting rule. Without an exhaustive grant may the writ even in the absence catalog objective impediments of such showing of a procedural of cause for the compliance rule, procedural awith we (Emphasis added.) default.” showing note that a that the factual at 2650. legal basis for a was claim not reason- The concurrence Justices Stevens and counsel, see Reed v. ably available accurately Blackmun noted that Daniels Ross, U.S., S.Ct., at at repudiated by Fay, had been stating while officials,’ that by ‘some interference also, [Fay] opinion addition that “the Allen, Brown v. 443, 486, however, contained dicta certain that has 397, 422, S.Ct. L.Ed. made qualified been by opinions.” later compliance impracticable, would consti- spoke at concurrence rule tute cause under this standard. injustice manifest in consideration “Similarly, procedural if the default remand, but in adoption majority the result of ineffective assistance of opinion. thesis of the Justice Brennan in counsel, the Sixth itself Amendment re- dissent reiterated statements in earlier quires responsibility that for the default cases, imputed be S.Ct. at with may which consistent persons Sykes trials at which who characterizing distaste as “an ‘conduc[t] face incarceration must defend them- illegitimate exercise of discretion.” At the adequate legal selves without assist- least, very would one also be called to * * * ance.’ Ineffective assistance of agree majority with comment of the counsel, then, is cause prejudice may cause test lack “[t]he However, default. think we that the ex- a perfect pedigree.” historical (Emphasis doctrine, haustion is ‘principally which added.) 106 A 2650. well-traveled designed protect the state courts’ role might barnyard aptly apply. term more in the enforcement of federal law and Carrier, Murray was followed prevent disruption judicial pro- of state Murray, Smith * * * ceedings,’ generally requires that a (1986) in a five- claim ineffective assistance conclusion, to-four with dissents Jus- presented to the state courts as inde- again tices Stevens in- and Brennan pendent it claim before be used to failure in voked state court raise for procedural establish cause default.” novelty In rejecting issue. issue 106 S.Ct. at 2645-2646. escape procedural-de- cause for from the message Justice This O’Connor failed forfeiture, constitutional-right fault Justice justice prejudice, is denial cause and O’Connor continued mind-reader thesis tempered relief, any, only if to be that: counsel which must available for attack “ * * * question is not whether sub- can, presented, within state first if legal sequent developments have made process. apparent It *26 the easier, counsel’s task but whether at the language opin- five-member majority time of the default the claim was ‘avail- Lacey, supra, Evitts placed ion 469 U.S. able’ all.” S.Ct. at 2667. 830, in present question, 105 S.Ct. but * «* * majority then the added: circumstances, Under these * * “* simply open argue legal not that,/or We remain confident part, ‘victims most petitioner basis of the presses claim now fundamental justice miscarriage will meet on federal habeas was unavailable to “ * * * counsel at the time of appeal.” the direct accuracy If in the determination 106 S.Ct. at 2668. guilt only or innocence were value justice system, of our criminal then the contemplate As we enormity of con- analysis might great Court’s have a deal clusion, it is realistic to otherwise concur If accuracy value, force. that travel to Mars is “now” available but however, many then of our constitutional process required intrinsic to do it protections as the Fifth Amend- developed not be for the next one —such right against ment years. compelled thousand self-incrimi- Eighth nation and the right Amendment Having then failed to find cause unex- against cruel punishment, and unusual potential anticipation, cluded the decision very by petitioner— claims asserted moves: “ * * * only irrelevant, are not possibly but Accordingly, ‘where a constitu counter-productive. Constitution, Our probably tional violation has resulted however, and our decision adopt an the conviction of one who is actually in ‘accusatorial,’ rather ‘inquisitori- than an nocent, a federal may grant habeas court system justice, al’ reflect a different even in showing writ the absence of a choice. That choice is to afford the indi- procedural cause for the default.’ protections vidual certain right Carrier, Murray v. 106 S.Ct. at 2650. —the against compelled self-incrimination and acknowledge “We concept right against cruel and pun- unusual ‘actual,’ ‘legal,’ as distinct from inno among ishment if them—even those cence does easily not translate into the rights do necessarily implicate the alleged context of an error at the sen accuracy of the truth-finding proceed- tencing phase of capital a trial on a of ings. Rather, protections those Nonetheless, fense. we think it clear on aspect fairness, of the application this record that fundamental liber- cause prejudice ty, dignity test will not individual society result that our miscarriage justice.’ all, ‘fundamental En affords to charged even those gle, 456 U.S. at 102 S.Ct. at 1576.” heinous crimes.” 106 S.Ct. at 2671-2672. 106 S.Ct. at 2668. zigzag13 This controverted yet has not One can consequently appreciate the con- ended, recently procedural since most de- clusion that initiated dissent of Justice Ste- again fault was revisited the United vens: State Court state court denial “The record in unquestionably this case of witness to defendant because of counsel petitioner’s demonstrates that constitu- failure to list in pretrial require- advance as meritorious, tional claim is and that there vote, ment. On a five-to-three this convolu- significant is a put risk that he will be rights tion of constitutional of the accused death rights because justified, defendant was which I find to be were violated.” 106 S.Ct. at 2669. singularly different from what was thoughtfulness, proscribed Daniels, it then is added for since because of coun- if, our majority edification that as the sel’s causing here default constitu- does, adopt rule, we are to the federal rights tional forfeiture of of the accused to Ohio, 92, 93, Compare Finally, 13. O’Connor v. Murray, 385 U.S. supra, we have State v. — 252, 254, (1966), Aiken, U.S. -, recently 87 S.Ct. and most "failure Yates v. object practice long to a 108 S.Ct. which Ohio had 98 L.Ed.2d 546 strip petitioner] allowed cannot [the of his pragmatic political-theory This kind of domi- practice following to attack the its invalidation chargeability nated affords a slender reed Court,” Richardson, by this with McMann v. Wyoming which a firm foundation for constitu- L.Ed.2d tional law can be built. This is stare decisis guilty plea not attack sentence based on coerced four-year the month or election results. I subsequently subject conviction to invalidation again, purpose would ask what is the of consti- Denno, by Jackson v. (criminal justice-delivery tutional in the cases, Engle with current justice) system? Chemerinsky, Thinking See Isaac, Corpus, About Habeas 37 Case W.Res.L.Rev. *27 Ross, supra, (1986). with Reed v. Taylor defend rather apparent, reject with available witnesses. is but to this coarse- — Illinois, -, grained, ideology pragmatic substitute for (1988). justice philosophy the broad is where of 70-year This re Burger, Rehnquist and is O’Connor factual- mission of fundamental constitutional law. ly defined in denied federal relief. Their hypocrisy The vice cause-and- ideological drive confine state constitu- prejudice ideology legal-error as absolution tional enforcement within courts is state application is “cause” intrinsic ill-served for this state court as a convolut- failure as an unintended where axiomatic approach consistently ed which not iden- factor of the rule unintended failure is not constitutionally comparable tical or cause, produce lack of intention cannot the asserted federal interest of abstention oxymoron, jejune an cause. Whether ab- comity. may What the courts federal straction, paradox, just jus- nonsense in do to avoid consideration of state-court stature, legal proce- tified since unintended originated constitutional issues has little dural default counsel is antithetical to legal relationship applica- to the state court cause, consequent application rights tion of guaranteed state and federal rule, although openly sole office initial trial and for search due application, in case deny admitted process, protection, equal and constitution- constitutional-right resulting consideration justice. al prime “Federalism is a [state] from that unintended default. maintaining reason post- an effective becomes, by definition, only Cause system.” Comment, Post conviction relief oxymoronic-excuse applied word when to Conviction Remedies Under Missouri justification unintended as default Solutions, Rule 27.26: Problems and It states cause and denom- relief (1982). Mo.L.Rev. possible inates no cause. *“ * * Because state supreme courts The unintended mistake have been ultimately law, responsible for state egregious understandable, or completely they state duty owe the and the nation a prejudice and the determining, modest or provide thoughtful careful and state but lacking, no matter —cause is jurisprudence. constitutional State sleight-of-hand definition, appellate inquiry by independently courts can do that ana- Responsive is avoided. dilemma cre- lyzing protections their state consti- ated, the courts then extract the have provide. tutions State constitutions and admitted error denied in constitutional re- ought bills of more to be than lief cause-and-transfer review to the compilations ‘glittering generali- mere ” antithetical subject of ineffectiveness of Comment, Interpreting ties.’ paradox counsel. The is ineffectiveness Survey State Constitution: A and As- when derived unintended default is Methodology, sessment Current cause-and-prejudice, cause for cause in U.Kan.L.Rev. stringent but then is reviewed crite- One need note generation ria of ineffective counsel as dimensional Lucey, supra, Evitts v. arising only failure when from unintended in the timely context legal performance. misadventure service cases, Daniels appeal, cf. cannot be cause-and-prejudice confined rule APPLICATION OF FEDERAL CAUSE- mistake, inattention, where counsel’s AND-PREJUDICE FORFEITURE negligence singular would otherwise forfeit TO RULE WYOMING CONSTITU- rights. It to be aca- GUARANTEES TIONAL demically majority noted neither nor significance analysis Evitts, of this Sykes, dissent in progeny or its implied forfeiture cases the United implied-for- the cases which considered the States Court decisions is not de- illusory escape feiture rule and of cause Note, rived from the inconsistency prejudice. demonstrable See Assist- Effective self-evident, on Appeal: ance Counsel Due Process logi- which is nor from lack of which Prevails in Evitts v. reasoning, cal Lucey, foundation insistent De Paul *28 (1985). Consequently, indignities Evitts some- many L.Rev. the visited first-generation exception a to one has the ill afoul becomes who fortune to run Appellate justice system. that course decisions. of the criminal proba- or possible ad hoc determination of accept lawyers “I cannot the notion that second, as ble innocence becomes the ac- punishments are one of the person a complished by majority Not even vote. merely being receives for accused attorneys need determination as to whether Barnes, crime.” at Jones 463 U.S. readers, illogic mind has of this to be the 764, 103 S.Ct. at 3319. In precedent consistently applied. been disingenuous Academic distaste for the expected the Engle, where to status of Jones client actualities of anticipate and future contemplate attorney relationship, and prior prece- and standard, change hundred-year from a and invoking master-agent dential comments Barnes, 745, 103 then in Jones only and master-for-client need related the ma- S.Ct. unworkability here to the of cause and directly jority confined issue obli- prejudice. litany In the justice, if gation, even nonfrivolous. that the So the admonition of Glasser v. United is message phraseology, not lost in these States, U.S. at any operational legal consistency cases lack ignored: should not be requiring predestination absolute is-—in preserve protection “To of the Bill of case, confining in one sue selection defendants, Rights hard-pressed we appeal responsibility only to is now what indulge every presumption reasonable probable accomplishes another. This against the waiver of fundamental paradox. converse rights.” It is in absolute nature of cause- morally I persuaded permitted am not and-prejudice rule to determine that rea- garish adopt application to of Wain- judgment acceptable. soned is not Mean- Sykes, supra, wright v. while, hungry implied wolves of forfei- application by Wyoming anticipatorily beyond ture wait the court- Court, stringent or even more guaran- to house door devour constitutional posture developed now this court tees.14 denying rights constitutional-interest to dissent, Brennan, recog- As Justice charged persons with criminal offenses. nizes: someday possibility strategic by- ignoring today Court subtly unmistakably pass proper

“The but is no basis for constitutionally counseling adopts conception different the de- involved ineffec- lawyer’s sandbagging nothing fense role—he The deterrence to need do tiveness. client, demonstrated, beyond what the as oft discussed and never mirage, unim- important. many singularly considers most as a facade having portant compared protection one of indi- ways, lawyer becomes 14. pro- law. If to be believed termite within foundation of this state's that democratic Constitution, supra. any society, Interpreting See the State extended future in this cesses have recognized princi- it must that standards give away judge is "For the not seated to ples individual law must have a basic gratification, just things judge as a but Assuming concept, acceptability. small them, gratify for he has not sword to whoever political-dogma substitutes doubt remains him, give judgment but to seems favorable only processes can for constitutional have according Apology to the laws.” Plato’s validity separate-but-equal time. As could Socrates, Socrates, brief Texts Four translated democracy, a substi- so also not survive Thomas G. West and Grace with notes Starry West, pragmatism in fault found will not alone p. tute of process as a age image, popularity, substitute for due continue emo- “In the tionalism, help to be No ex- constitutional maintained. it is vital that we our fellow is, scholarly aptitude recog- required ceptional important citizens see how substance adaptations indispensable courage rationality denied in fairness nize how are, briefly remain. Procedural default essential the rule of law to a how remains precisely society." Speech by waiver however Rose fits free Chief Justice unintended Bird, January upon other become a courts need not Elizabeth inflicted “ * * * rights.

vidual’s [Pjostconviction It is not to review is neces- *29 perceived number insistent sary protect rights ly emplaced requirements this court and process. due The Missouri and United the justice-delivery system of the state can say corpus States Constitutions habeas procedural decrease defaults. Some af suspended, must not be and the United efforts, literature, in firmative noted has, effect, States Court in said impose, procedures, greater in could provide that if state do not courts ade- selectivity, rigorous counsel more edu quate postconviction procedures, the fed- of lawyers requirements, cation on trial eral courts will. In the jus- interests of judicial recognization and character tice, federalism, finality, and state courts and, resort, problem, in suspen last provide need to postconviction effective sion and disbarment for inveterate defaul review. It must be if available to all it is present ters. Neither this court in decision to be effective.” Post Conviction Reme- realistically nor federal solutions encom 27.26, dies supra, Under Missouri Rule pass logic a thesis of justification and ex 47 Mo.L.Rev. at 807. cept by a course of conduct and indicated Consequently, we would have the es- absolve, ignore, attitude to reject what presented, sence of the rules to be from really occurring. Inevitably, it will inbe dissent, which I to be restated in actual system acknowledges opportunity functioning processes as default correction, for perfection judge, since rights forfeiture of not of the United jury, or counsel does not exist and should Constitution, States appropriately but more up in constitutionally be covered Wyoming Constitution, arising from ne- rights by procedural default forfeitures.15 glect or adequate representation. default of Cutbirth, In applies reference to this court FEDERALISM IN CRIMINAL LAW invoking rule neglect waiver or defec- Beyond argument, appar- reasoned it is counsel, tive decision of to foreclose claims judicial legisla- ent that failure of state petition made in Cutbirth’s post-convic- for preservation tive commitment of con- tion relief reiteration that the courts in rights stitutional led to initial intervention required this state are not issues review through corpus federal courts habeas that were raised or could have been raised process. criminal-trial develop- on petition later asserted in a ments of the Frankfurter/Brennan/Warren post-conviction relief, although the failure in relationship justice to denied neglect resulted from or defective decision state hardly courts were accidental: “ * * * of counsel. having State courts failed to reach the purposes, Although merits for their own applicable to a status derived federal courts fill Larry part the void.” Fay, Yackle, Remedies, W. Townsend, Postconviction su- pra at 17. since decimated if finally and total- ly in Sykes, interred I would concur with a prime Federalism is a reason for main- Note, contemplation academic State taining post-conviction-relief an effective Post-Conviction Remedies and Federal system. Post Conviction Remedies Under Corpus, Habeas 40 N.Y.U.L.Rev. 27.26, supra Missouri Rule at 807. In (1965): interest of retention litiga- of state criminal “ * * * courts, tion in state reason denies diseffec- view the stakes involved— post-conviction-relief of state pro- tuation adjudication continued crime Raper, cesses. See Post Conviction Reme- state courts—and in view of the readi- dies, supra, Wyo.LJ. 213. ness evidenced the federal courts to toff, pessimism If of reflected constitutional Endangered Species, The Constitution as an extended, concern seems two even more (1987/88): dis- Gonzaga Williams, L.Rev. 419 turbing evaluations can be found in the most Where Freedom: Federal or State Constitu- Kinoy, current literature. The Present Constitu- tions?, 30 Howard L.J. 507 Crisis, tional 27 Washburn 1L.J. Hen- give weight comity, corpus jurisdiction needs of habeas should eral would seem opportunity worthwhile states to taken States as an hear adjudicate cognizable all claims good state fashion remedies as better corpus federal habeas their own disposition for the of the federal claims courts,” prisoners.” of state also with rationale of the dissent part now, particu At least in and more Wainwright Sykes, 433 U.S. at present larly as the disablement consti 113-114, 2520-21, Brennan, J., 97 S.Ct. at tutional forum inevitably federal *30 Marshall, J., by dissenting: joined pass, court, is soon to we of in moving this “ * * * Especially with con- fundamental in the direction of limitation the of “fair stake, rights stitutional at no fictional provided statute, inquiry” by state must relationship like principal-agent of or the expect surely magnification of the Kevin holding can the justify criminal defend- result, Osborn Wyo., Osborn v. ant for the of accountable naked errors (1983), P.2d cert. denied 465 U.S. attorney. especially This is true Os indigent many when so defendants are D.Wyo., Schillinger, born v. 639 F.Supp. any selecting choice in without realistic six-day hearing where after a in represents ultimately who them trial. court it federal was there observed: Indeed, if responsibility for error must passing, recognizes “In this Court that apportioned it is parties, between the Wyoming Supreme Court never has had State, through attorney’s the its admis- it a full It essentially before record. policies, sions and certification that situation, procedural dealt with without fairly more to blame fact held for the a factual as developed foundation such practicing lawyers too often are ill- (6) day hearing, this Court in its six prepared ill-equipped carefully to act only really hearing which was full and knowledgeably when faced deci- Osborn has ever Because of had. governed by sions re- state evidentiary proceed- lack of extensive quirements.” ing, the facts herein found were for the Brennan, only Justice part William J. not most not known either the state most supreme admired but also the most influential trial court or court.” recog- of jurist century, F.Supp. this last half at 614.17 of nized the author state constitutional TO WHAT DEGREE PERFORMED OF

rights imprimatur justice spoke delivery, SKILLS ARE CONSTI- LAWYERING directly to Habeas federalism Federal BE TO TUTIONAL RIGHTS DIRECT- Corpus and Prisoners: State An Exercise ED? Federalism, 7 Utah L.Rev. 423 in his to the address Conference justice-delivery system It is how defi- Justices, Aspects Chief Some Federal- its ciently defines own structure that inevi- (1964): ism, 39 N.Y.U.L.Rev. 957-958 tably justice, not it will be in accurately perceived it “Rather than as unwarranted federal en- but that will be domains, recognized Rejection croachment state fed- others as failure. his address to the Conference of Chief and more threats to the achievement years ago, Justices 24 Justice Brennan conclud- ideal—more more collisions the indi- ed with these remarks: government. with his The vidual need for vigilance judicial the service that ideal changes rapid "We must remember these greater. expressed was never It become the busi- has when alarm is that constitutional change For, protect all of coming going too fast far. ness of us to fundamental con- too world, today’s today ways what our constitutional stitutional threatened not possibly envisaged other fundamentals meant to the wisdom of the Framers.” times cannot measure to be their the vision hope I 17. I that no case for am called to time. I to the our You and are committed responsibility pro- in the dignity function constitutional ideal of libertarian through will future tected Crises and in this office afford similar comment law. at hand create, prospect creating, judiciary. are more federal and will from the by popular consensus if any will follow broad him to make explanation allow characterizations of failure are stated and court. excused, though even reasoned and ration- representation counsel, “Effective judicial analysis might

al achieve the same satisfy order to the accused’s constitu- affording justice result in trial, substantive tional to a fair is a rule of law providing societal strictly satisfaction. The Consti- that has been construed. It must guarantee representation tution does not the assistance of mean so lacking compe- counsel, the most brilliant but at least rea- tence that becomes the duty public message son and care. to observe What such a condition and system validity Allegations correct presented in forfeiture it. of serious mis- justification? part takes on the We of an attorney, are called to wade stand- ing alone, through misery even justice results, of what as an where harm ground industry says institution and corpus. does and habeas In all constitutional-right forfeiture cases decided on subject, dissertation: “ * * * surrounding circumstances the trial must incompetency negligence be such as to shock the conscience of an employed by the defend- *31 court and make proceeding a farce ordinarily ant does not constitute and a mockery justice.” of (Emphasis

grounds for a new trial and a fortiori will added.) Davis, Ky., Rice v. 366 S.W.2d grounds not be application for the of the * * * (1963). 156-157 Fourteenth Amendment. concept “The of this rule is Entry that the lack of plea a technical or a technical of skill and incompetency attorney of the violation with a 24-hour actually sentence imputed to the defendant who em- sitting served in the courtroom for the * * ployed him Tompsett v. day, unrecognized State balance by coun Ohio, 146 F.2d at 98. sel pleaded-out felony conviction, as a does not constitute ineffectiveness of incompetence, “The counsel. negligence, or un- Cariola, (3rd United States v. 323 F.2d 180 faithfulness of defendant's counsel who Cir.1963). Carióla, full evidence was not was selected him in the trial of a available for the coram nobis review: general criminal case does not as a rule “ ground trial, constitute for a ‘This diligent new nor call court has made effort to application for guaran- transcript obtain a proceedings of the tees of defendant's full ascertain colloquy to the bene- what transpired be counsel, fit of nor application for tween court and counsel. Both trial Fourteenth judge reporter Amendment to the and court deceased, Federal Balkcom, Constitution.” Jones v. the latter’s notes are not in exist (1953). Ga. “ * * * 3-4 appears S.E.2d ence. It also that the Govern ment’s records of this case cannot be trifling It would be with the ” located.’ Carióla, United States v. client, court to allow the keeping after 323 F.2d at quoting n. silent in Unit presence of the court while Cariola, ed States v. 211 F.Supp. his plea entered guilty (D.N.J.1962). 424-425 his behalf and the acting thereon sentence, imposed the deny thereafter understatement, In characteristic which authority of his attorney to enter the perceived often to be in examination of plea deny or to approval his of such appellate opinions as illustrative of the lack action his attorney.” Archer v. experience jurist, trial the court Clark, Ga. S.E.2d 925 reflected: “Although petitioner met for [counsel] case, It is in this though last even the first time in the courtroom the morn- alleged individual post-conviction denied ing of the trial petitioner and talked to proceeding that he guilty, was not only minutes, that he about ten during this defense, objected had a and that he to the petitioner time told him everything he entry plea and his attorney would knew about the case. legal profession justice-delivery attor and the suggestion that is no [the

“There incompetent system? majority or unfaithful I see an opinion ney] was most that can abject adaptation interest. The of the waiver idiom that petitioner’s young, experi he his is that of the worst said the conduct becomes not limited, in criminal matters was perception ence the standard but the confines preparation probably less his responsibility. than it should have been.”

extensive Cariola, States v. F.2d United ASSISTANCE INEFFECTIVE OF COUN- 185.18 AN SEL AS APPEAL ISSUE more nothing Petitioner reveals than recognized Having princi- that the waiver the extent claimed errors of trial counsel of ple psychological mirage is a opera- effort, in- and kind common to all human absurdity, I tional am then turned to cluding inquiry appeal, of failure address of this court to ineffective assist- ignored irregularities contentions of argument ance of counsel. One vice of the that “collusion occurred between brief by contending of the court afforded counsel, government and that counsel phenomenon or standard is in failure per- prosecution knowingly employed recognize the stringent application v. United Rivera jured testimony.” waiver, imputed at least for of this most States, (9th Cir.1963). 318 F.2d application. century, is novel It should think the term assistance’ “We ‘effective recognized degree that the extent or courts' the consti —the construction of neglect or defective decision of the attor- requirement tutional for the assistance ney, question the essential ad- quality of counsel—does not relate to dressed, analysis requires in order to deter- *32 lawyer of the service rendered a trial required, mine whether reversal is which the in the nor or to decisions he makes Washington Strickland v. is the office case; except mal course of a criminal confining approach. difficulty as a The that, if incompetent his conduct is so as concept majority with the theoretical of the deprive any to his client of in real a trial is, first, waiver, the attribution of and in mockery the sense—render trial a and a question significance then in the de- as descriptive is one expression, farce —the being fined more determinative facts trial, accused must or rath have another pragmatically jus- relegated explained to er, accurately, more is still to a entitled singular than tification rather to a harm States, trial.” Mitchell v. United failure, system result Cf. Common- (D.C.Cir.), F.2d denied 358 rt. ce Bolden, Pa., (1987). wealth v. 534 A.2d be, the At issue should how bad was critiqued in As dissent: assistance, counseling and how bad was “Perhaps expressing liberty fair-trial way clearest result on the interests my say jurist reason for to The always dissent is that the accused? should right willing the constitutional to effective ask whether he would to be satis- my view oc- assistance counsel does not fied and comfortable with what has merely procedural require- acquaintance or a close had prescribe curred if he but, contrary majority opin- to ment been the accused.

ion, prescribes also a of skill.” standard we should rec- Practically, start with the Judge, F.2d at Fahy, Circuit that, used, if ognition the word “waiver” is dissenting. occurred, a mistake as the essence of What, standard, right as a references valued The do these word that a was lost. quotations post make for evalua- be afforded in convic- and civic-class consideration tion, is contemplation or citizens’ of the tion or whether that valued honesty, reliability, and and effectiveness of defined constitutional interest incompetency per negligent ten-minute interview in a and 18. A with a defendant for mental se writer, felony, opinion pleaded-out in the this malpractice. suspension be a basis of near-automatic should attorney plain conduct of the was of a char- or a do error clear un- and implied responsi- equivocal so that rule of law. acter the facade bility of the client should not be reassessed. or, paradigm more appropriately, difference, categorical my disagreement In paradox oxymoron applied by majori- majority with the is illustrated their ongoing ty case, an standard of as is simple statement that “the to raise failure having denied relief the defendant appeal, they certain issues on even if were procedural ap- based default trial or meritorious, require does a conclusion peal, of relief for ineffective test counsel of ineffective assistance of counsel.”19 stringent so that the attribution of waiver ask, would what does the One failure to attorney’s imperfect to the client from the really except meritorious performance raise issues mean becomes absolute bar neglect, failure, justice deficiency? charged for the indi- This is pragmatism If fact, justified, vidual. in result is ineffectiveness in whether or not pragmatism calling pro- extemporized fiction or standard. The hor- cess it is appropriate what will be more rifying approach facade of the entire is to logic. Knowing reason fiction rights of foreclose the the client then waiver, poses client this court an irrational deny responsibility attorney. of the liberty burden on the interest of the client Laing Syl- 746 P.2d 1247. to demonstrate stupidi- effectiveness where aside, logisms neglect or decision deficient ty, just slovenliness or lack of reasoned attorney innately prejudicial, preparation necessarily will not suffice. only question for address is to what addressing While we should inquiry our extent and with what reasoned result. whether not the accused defendant conduct, assay specific order evalu- rights, was denied constitutional we detour neglect ation of the claimed or deficient our review to insurmountable burdens decision of the must be reviewed arbitrary parasitically applied “stan- Obviously, in trial context. the arena for another, dards.” Somehow or it is observa- parameters review is within different examining ble that the direction to avoid included at trial with moment-to-moment the issues the substitution of labels responsibilities as to be differentiated deny applica- relief without academic appellate the failure of counsel to acknowl- affixing tion as a result without reason. edge recognize adverse decisions or *33 I find to differ would cause from the problems in appel- record examination and majority of this ra- court rationale and composition. late-brief tionalization, as case well as classification problem The is not resolved further discovery “only of of few a cases which application of the “concrete standard” reversible error for ineffective assistance pursues court now as substi- a premised appellate upon of counsel was for tute evaluation of the mis- counseled appeal.” failure raise issues on certain take and a consideration of its on the effect Actually, Lucey, supra, Evitts v. liberty interests of the Since individual. 387, 830, S.Ct. 105 multitude of explicit “waiver,” the use the word improper, untimely, appeals or omitted irretrievably adduced, error and the a example. expand serve as first To question significance is the of the error and territory of constitutional waiver as encom- relationship proper to a rever- basis for inept passing appellate counsel now faced I problem sal. do not have with re- default, here as attention di- quirement petitioner that must show an Annot., rected the text and cases in 15 582, adverse effect a substantial Adequacy A.L.R.4th of Defense Coun- error,” Representation derived from the “counseled but I sel’s of Criminal Client Re submit nothing Appellate (to- would that this has rational and Postconviction Remedies general apply logic problem I would the ad- "The here described is a ex- classic Rheenen, Inequitable monition found in Treat- ample of gradually rules founded reason Litigants, ment Assistance 19 Ind. becoming dogma.” senseless of Ineffective 159, (1986): L.Rev. 168

1293 * * 493, 1400, text, including supple- (1967) L.Ed.2d 498 pages 194 18 \ taling applied ment). The same standards to trial coun- apply should competency sel in measur- nor examples reversed decisions As competency appellate ing the coun- relief for occurring post-conviction mally sel.” many corpus, I cases habeas include the postconviction applicant v. as- Jenkins “When above, examples cited and as Coombe, violations, Cir.1987), serts constitutional we make (2d cert. 821 F.2d 158 (1988); evaluation 704, independent totality 655 Lockhart, State, of the circumstances. Hinkle (8th v. Bell v. Cir. 795 F.2d 655 Greer, Gray v. (7th 28, (Iowa 1980). 1986); 350 30 778 F.2d 290 N.W.2d This is Cir.1985) (remanded Id.; for considera equivalent further of a de novo review. * * Lewis v. counsel); tion of ineffectiveness at 422. Id. State, (1983); 143, Ark. 649 188 279 S.W.2d cases of Barclay v. Wain The Florida Manson, v. Paulsen 193 476 Conn. wright, Fla., (1984), 444 So.2d 956 State, Rivera v. (1984); Ind. A.2d 1057 Dougan Wainwright, v. Fla., 448 So.2d (1985) (remanded N.E.2d 110 for App., 477 (1984), more comprehensively display rebriefing recognized after the “bla my conclusion reversals ineffective nonrepresentation” of first text tant Barclay v. counsel. appellate ness of See State, Lamphere v. Iowa, brief); 348 State, Fla., (1977), 343 So.2d 1266 cert. State, Curtis v. (1984); N.W.2d denied 439 S.Ct. 58 L.Ed. U.S. Stewart (1978); 395 A.2d 464 Md. (1978), resentencing 2d 237 remanded for Warden, 92 Nev. 555 P.2d 218 (1978), aff’d after So.2d 657 resentenc Casiano, People v. 906, 501 N.Y. 67 N.Y.2d ing 411 U.S. So.2d aff’d 463 (new (1986) 492 N.E.2d 1224 coun S.2d 939,103 37 L.Ed.2d 1134 appeal appointed sel reconsideration upon petition corpus rev’d habeas required). Barclay order to allow new subject succinctly The defined execution, (1984): stay So.2d Warden, supra, by per Stewart curiam pro- find that Jackson did not “We also opinion: Nevada Court Barclay vide with effective assistance ap- “It is uncontroverted that while 444 So.2d at 959. counsel.” peal progress appellant requested was in Dougan sequence conjunction arose attorney his then to raise certain claims case, Barclay affirma with the initial error, and the neither Dougan’s Barclay, conviction in tion of to the presented those claims of error again following affirmed and sen remand supreme any court nor offered reason or in Dougan Fla., tenced to death * * * so. explanation for his failure to do cert. denied 454 So.2d ****** *34 post-con- factual “In the context of this Dougan Wainwright, supra, 448 So.2d v. proceeding, we hold the unex- viction 1005, Supreme appel the Court held that plained appellant’s omissions of former provide as late counsel failed to effective attorney may upon by a not be relied by conflict of sistance both interest penalize appellant court to for district in legal failure meritorious claims to raise of counsel appointed the failure his ‘... Dougan, petition and the ha- behalf of for function in the role of an active [to] granted corpus beas in order to afford advocate, 555 P.2d at in appeal. a new The case came back State, Iowa, State, Fla., Sims v. Dougan v. in (1985), Iowa court The 470 So.2d 697 420, (1980), simplistically 1499, 424 1098, 295 N.W.2d cert. 106 S.Ct. (1986), stated: again 89 and was re resentencing by right versed for virtue of error course the assist- “Of to effective sentencing process assistance the applies of counsel also to did ance v. Anders appeal. incompetency invoke or of of counsel ineffectiveness Califor- nia, 738, 1396, 744, appellate 87 counsel. S.Ct. 1294

The clear lesson to be learned from had some the counsel reasonable basis de Barclay-Dougan recognition cases is the of effectuate his signed to client’s interests. * * * much less how time would have been re- requires Because this decision an quired, and money how much would have stewardship of counsel’s of examination saved, if been the ineffectiveness-of-coun- light of the appeal the available alter immediately issue had sel more received natives, it often be to necessary will call attention. challenged whose assistance counsel may so he explain as ineffective the deci reversing remanding for a new trial, Supreme ap sions he made the course of Pennsylvania of Court Furthermore, 461, Pfaff, peal. petitioner v. Pa. both the Commonwealth 477 384 1179, (1978) 1182 A.2d teaches: Commonwealth to may and the wish call present additional witnesses and other right of “One convicted crime also has a appeal, Douglas California, evidence relevant to the petitioner’s to 372 353, 814, Sullivan, U.S. 9 L.Ed.2d 811 claim.” Commonwealth v. (1963); Herge, 468, (1977). Commonwealth v. 472 Pa. 371 A.2d Pa. A.2d 787 and has the The majority context discussion in the right representation to effective coun- may opinion similarity accorded some taking when appeal. sel that We are to recent decisions of the United States unwilling to appellate conclude that coun- Court, confuses the essential effectively represents sel one convicted function of advocate counsel. The counsel, appellate a crime when either defendant, representing the particular through otherwise, inadvertence or fails ly appeal, so on remains an and is advocate raise arguably issues on meritorious just amicus curiae. See Anders appeal. purpose appel- One of the California, 386 U.S. process guarantee late is to as much as reh. L.Ed.2d denied 388 U.S. possible right that the defendant’s to a Ents impartial scrupulously fair trial is Iowa, minger appellate honored. When counsel fails to equally It is bring to appellate the attention of the recognized appellate to be counsel arguably courts facts which indicate that assume position not free to of amicus trial counsel allowed the accused curiae, also is not jurist. but subjected prejudicial prosecutorial con- trial, during duct we are to con- forced predominant posture thought- appellate representa- clude that counsel’s opinion ful scholars and writers defines tion the accused was also ineffective.” responsibility appellate counsel present Broomell, consideration on each See also review Commonwealth v. Pa.Super. 574, legitimate issue that 386 A.2d he find or that the case may separately where was remanded rehear- be found suggested ing since process defendant clients. The selectivity * * “ * [tjhere legal-issue the determination merit opportunity must be an should jurist, have all of the be vested and not in regarding issues the ef- fectiveness of the mind counsel considered one advocate counsel to either hearing, party client, the rights either determine or to made anticipate contemplative determinations conclusions following evidentiary below appellate segment judicial hearing.” division the justice-delivery system. *35 * * “* States, 855, v. deciding When of ineffec- Cf. Dennis United 384 a claim counsel, 875, 1840, appellate hearing

tive the court 86 16 (1966):20 determine if must the course chosen slothful, 754, 3314, Blackmun, separate J., will I 20. Nor from what U.S. at 103 S.Ct. at ignorant, just negligent, wrong, concurring. concept whatever else This also accommodates ineffectiveness, might my disagreement philosophical acceptance constitute from what is with Barnes, just supra, critique capital "unethical.” See attorney Jones v. 463 defense David * * “ * 444, adversary system, 419, In our gans, Cal.Rptr. Cal.2d (1967). enough judges judge. P.2d The deter- mination of what be useful to the devastating analysis, In the the court properly effectively defense can found: only by made an advocate. The trial “Judged by foregoing criteria, the repre judge’s respect function is limited appointed sentation counsel for deciding whether a case has been petitioner Appeal before Court of production, supervise made for and to demonstrably inadequate. Indeed, was * * process petitioner would have fared better had his withdrawn in pro favor of a 134, People Lang, 11 Cal.3d v. petitioner, despite petition se brief from 9, 393, (1974), Cal.Rptr. 520 P.2d we acknowledged legal ineptitude. er’s In a thoughtfully are reminded that bristling arguable case with claims of “ * * * obligations appellate [T]he error, petitioner’s counsel open filed an duty prepare counsel [include] ing consisting 20-page brief of a recita legal containing brief citations to the tion of the facts and a one-page argu transcript appropriate authority, and 1, Cal.Rptr. ment.” Id. 90 474 P.2d at issues, setting arguable forth all and the duty argue the case further Furthermore, I completely agree would against his client.” with that court in conclusion: principle This was affirmed and restated course, appellate “Of counsel is not to Barton, 513, People v. Cal.3d 146 Cal. responsible be held for an actual friv- (1978). Rptr. 579 P.2d 1046-1047 client, appeal by olous and we do not In reversal and remand to reconsider the Feggans hold that Anders require appeal, the California Court ana- arguable advocate contrive issues. lyzed that: action, But in the instant each of the “ * * * case, appellate In the instant petitioner counts on which convicted was counsel breached both duties.” 113 Cal. potentially legitimate vulnerable to Rptr. 520 P.2d at 396. provocative appellate contentions that should have been manifest to an case, In the seminal where the California responsive attorney.” alert and Id. 90 Supreme Court vacated the decision of the CaLRptr. 474 P.2d at 972. court, appellate intermediate reinstated the appeal, appointed State, Bryant App., other counsel for the See also Hawaii defendant, Smith, In re 3 Cal.3d 90 P.2d 1015 Cal.Rptr. 474 P.2d 971-972 Finally, subject phe on the of the “new

similar definition of duties included: nomenon,” perti I would find as the most “ * * * prepare must countervailing example ‘Counsel a brief to nent Osborn v. understanding supra, assist 672 P.2d where that deci legal court, facts and the issues in the case. sion and this after an ineffective appeal, must set effectively brief forth statement of were reversed transcript, facts with citations to the United States District Court Osborn legal F.Supp. discuss the issues with citations of Schillinger, where argue appropriate authority, and all is- provided an actu defendant first Moreover, arguable. hearing. Obviously, sues that coun- al still by pending sel serves both the court and his client from that decision in the latter advocating changes argu- Appeals, in the law if United States Court of the final life, death, supporting change. guilt can be made story ment Osborn or trial on * * Quoting written, People Feg- V” from but as now introduced the ciation, Appointment current Bruck that minimum standards for ef- Standards and Per- Penalty of counsel have been met "if a mir- fectiveness Counsel in Death Cases at formance of up." quoting Angeles counsel’s ror held under nose clouds Stan- 53 n. 2 Los 11.2, 30, 1986). Legal Daily (September National Aid & dard Defender Asso- Journal *36 differently presented is no a nation of and slop- status than was have become shortcuts Wainwright, in Matire v. py performance, but neither of one those resolution (11th Cir.1987). problemsome potentially features of a de- 811 F.2d society clining proce- should be as invoked Consequently, in this consideration of in- justice. of dural denial substantive What ap- of counsel for trial and effectiveness really post- this court does is to leave reasonably to peal, apply would as I only arguments conviction relief sounding utilized as criteria: lawyer-bashing, ap- at least in and trial presented (1) reasonably If the issue was cases, peal perhaps and nothing plea appeal, dispositively prior considered in cases, least if the of conclusions Whit- summarily ap- finality would adjudicated State, Wyo., ney v. (1987) 745 P.2d 902 denied relief. plied in hereafter, applied to be where sen- (2) presented, either If the issue had may tences be at issue. did not. merit or My objection consequent dissent rest (3) If the issue had no merit substantive- upon denial of constitutional-issue consider- subject post-conviction ly, it is considera- extrapolation ation of a and com- new appropriate adjudi- with tion to resolution pletely by judi- confined statute as defined finality. cative What cial fiat. this court announces is that assistance of ineffective counsel can be de- (4) If the issue merit in prior did have specific termined without review of the deprivation, justice it ill suits lawyer’s error. heap absurdity This is to it say attorney, that was waived hyperbole. says First the court client, impressed and now reclas- if the did not waiver exists belie of sified to effective assistance coun- present issue appeal, in trial or on Consequently, merit, sel. if the had issue and now excuses failure to raise on be constitutionally cannot waived process evaluated without consideration uncommunicated action of counsel and wrong done, if any, what to the dispositively should be considered as client’s constitutional interests. This meeting clearly whether rather determin- accident, justiciable igno- build to status able criteria as a basis for the nonrational rance, stupidity, negligence, or be re- denial, justice by appropriate, delivery if sponsively excused. perspicacity by granted justified. relief where Noia, in Jettisoning Fay v. the author (5) any recognized To ineffectiveness supra, 438-439, clearly 62 Minn.L.Rev. at counsel, inquiry prejudice defend- forewarned Os- demonstrated as earlier applied, sufficiency ant is measured in Schillinger, supra: born v. if it as the error had not occurred would ultimately “Whatever standard provide guilt. a reasonable doubt of Cf. cases, adopted respect to contested Agurs, supra, States United U.S. scrutiny of close the state trial court 2392; Washington, Strickland v. virtually mandatory, record will be 2052; Com- supra, testimony at evidentiary federal habeas Bolden, monwealth v. A.2d 456. hearings likely Thus, is a prospect. judging “The benchmark for a claim of may claims of ineffective assistance well ineffectiveness is whether counsel’s con- result in substantial increase time- so proper duct undermined the function- consuming tasks for the lower federal ing process adversarial that the and in courts considerable embarrass- having cannot be pro- relied on as ment the bar. Dillon, just People duced result.” problems if, imple- “Additional arise Colo.App., (1987). 739 P.2d menting the cause prejudice require- legislature ments, Neither nor this can adopts, Court Sykes seems amend properly deny the constitution. suggest, a miscarriage-of-justice or to- Compare Rocky Mountain Oil Gas tality-of-the-circumstances test. Since Equaliza- v. State Association Board appears such a standard con- involve tion, Wyo., 749 P.2d 221 probable We sideration guilt or inno- *37 prisoner, (4) of the demonstrating cence the federal transgression courts as clear obliged hoc, obvious; bewill to make ad case-by- respect case determinations with to this (5) to then cause an adverse on effect issue. Decisions of this kind are ex- right; then, substantial so this court tremely subjective, guide- and coherent says: “ * * * making lines for them are hard to formu- inadequate The claim of repre- * * * late. [AJdoption Sykes of the rule by appellate sentation counsel could have in an judicial effort to conserve resources application been resolved of the by eliminating necessity hearings objective criteria set forth above rather on the merits of constitutional claims ul- than an examination of the merits of the timately may substantially create more simply claimed issues or analy- ad hoc work for the lower federal courts and sis of them the court to determine in the amorphous result elaboration of might what its members have done dif- rules to determine the circumstances un- ferently. objective When the criteria are der which the merits of a constitutional invoked and the district court then is claim can be avoided.” persuaded appellate that counsel did

make a mistake which prejudicial petitioner, appropriate WYOMING relief can be afforded by ordering a new POST-CONVICTION RELIEF trial or in the alternative a reinstatement recognize When we 26V2-year that appeal of the direct so that the issue history Wyoming post-conviction relief, presented.” petitioners have benefited from conviction This syllogism adjusts nothing and denies once, applications reversal of the strin- everything in an effort to excuse unintend- gent denuding efficacy principles ed counsel mistake in order to validate simply here stated judicial afford a ex- constitutional-right Authority forfeiture. pungement legislative of a remedy to as- even from cause-and-prejudice decisions sure rights. In majority of the current Supreme United States opinion, the court stated the conclusion for Court idiom cannot be equivalently denied. determination whether perform- counsel’s Lucey, supra, Evitts v. and Kimmelman v. ance was constitutionally deficient “should Morrison, 477 U.S. analyzed in much the way same (1986). best, Wyo- Even at analyzed this court has concept plain ming Constitution has been obnubilated. However, error.” application plain- Inquiry required is then protec- whether concept error to waiver and forfeiture was Wyoming tion of the Constitution has been specifically rejected by the United States extinguished denied and completely so Court in United Frady, States v. present justified result by past prece- supra, repetitive, dent of this court. To be we are Isaac, Engle not here judicata concerned with res S.Ct. 1558. issues, appealed but with intrinsic constitu- majority syllogism presented deny tional forfeiture from counsel mistakes. constitutional relief when counsel made a State, Wyo., Pote v. 733 P.2d 1018 pre-conviction processes mistake or in although conclusory prod- result-oriented in failing legitimate to raise a issue uct, original addressed appeal, issues of deficient, constitutionally including in why and not effective counsel would more recognition essential context of both an adequately presented have issues in that mistake, admitted constitutional issue and appeal. likewise, State, See Wright v. supposes disposition: Wyo., (1986); State, P.2d 35 Hoggatt v. (1) analyzed concept error; plain Wyo., (1980); 606 P.2d 718 Johnson v. (2) particularized presented; facts State, Wyo., 592 P.2d 285 Munoz v. (3) identify sufficient to Maschner, clear and un- Wyo., 590 P.2d 1352 No law; equivocal rule of required formula is scholarly analysis by this subject that the claimed mistake as unin- elusion. As resolved court Cut simply tended default lacks 663 P.2d Wyo., birth *38 guilt merit for further determination and those were: “ claimed, guarantee inquiry constitutional if is ‘1. sufficient Whether the evidence considered, by appeal and earlier doubt, prove, beyond to a reasonable that review. “maliciously appellant killed his wife and apparently nothing purposely.” I that has find now “ been or remembered since Frank learned ‘2. Whether the evidence indicates the supra, great in when the Mangum, v. was, most, appellant's negli- conduct time, Justices jurists of that Holmes and gent. “ Hughes, society obligations first alerted jury ‘3. on Whether the instructions justice-delivery system. of the than Rather manslaughter involuntary misdefined complex encasing protective in a reflec- elements of offense and were so confus- I impenetrability, tive armor of would sim- ing they misleading deprived and that ply say that, assuming judicata res not is appellant of a lesser included offense applied, the issue is: there properly plain and constitute er- instruction ” error, prejudicial? right and was it If a ror.' meritorious, was waived which was obvi- proceeding, Now in this the issues error, ously there was and that leaves presented in by comprehen- Cutbirth his remaining question prejudice of sively post-conviction composed petition for applied. bypass defined The and deliberate relief included: Fay to confine was intended unintended (1) Involuntary interrogation nature of proper con- default to remedial responses in because of fraud failure to Sykes By text. the evisceration of in rule advise that Mrs. Cutbirth had died. acceptance prejudice, of cause and singular fashion out now writes (2) part interroga- Admission of Wyoming constitutional declaration exchange suppression of part tion and as rights following political pragmatism deny equal protection. claimed of another court. (3) subject The same as claimed de- ceptive interrogation as invoked in RICKEY CUTBIRTH ISSUES (4) compulsory process IN CONTEXT Denial of and impartial through to a fair and trial ap- Although the issues created in this (a) ineffective of counsel in assistance fail- peal clearly pervasive divisive are more and by discovery ure counsel secure avail- just Rickey than the status of Cutbirth white, long-sleeved ability of the shirt worn who, all, only a after has sentence of defendant; (b) and failure counsel to serve, years his requires to life to case testing expert secure and appropriate wit- presented analysis factual of the issues expert-opinion ness to have examination uncounseled, pro-se the trial court analysis for trial. petition post-conviction relief. Responsive petition, to the con- inquiry The State required first to determine (a) tended its brief: Post-conviction relief presented appeal compared issues on as post-conviction-relief inappropriate to review issue that issues later raised on petition pre- appeal; could should have been raised on comparability to determine State, Cutbirth, training, necessarily was the case with but not constitutional Kortz State, justice. Engberg Wyo., Wyo., waived See also 746 P.2d 435 demonstrates requires appellate appeal on 686 P.2d cert. denied 469 U.S. issues definition experience supervision Engberg S.Ct. State, a level of may 87-15, pending pro- properly afforded No. now in this court on intern grams comprehensive post-conviction-relief petition, supervision where more more than unless provided. dozen were now call realistic issues The architect what we "found" writing by appellate original appeal. in brief in Cutbirth v. counsel Who "waiver” arose responsible neglect have for the error supra, a senior law student intern been explored present program. programs proceedings. has not been Those valuable misconduct) (b) support petition- the record does not is ineffectiveness counsel. allegation under Engle er’s It remembered that must be violated.22 appellate change were possibility a later anticipated discerning basic must be law by appellant issues in his defined novelty. Murray, supra, what is Smith v. brief, in addition to the present new-trial 2661; Ross, S.Ct. Reed v. (1) appeal, include: ineffective assistance 2901; Desist v. (2) counsel on appeal; introduction States, United evidence of acts under Rule bad reh. 404(b), W.R.E.; (3) L.Ed.2d denied 395 U.S. appel- violation of *39 interrogation lant’s constitutional being give compelled to evidence presented, this subject Under as now presented is a against himself. What is inquiry requirement assumes appellate of coun- claim ineffectiveness parameter. complex one No should real- in failure to issues of sel raise the volun- ly question right to effective assistance examination, interrogation of the tariness counsel avoid uncoerced confession confession, generically in fail- called a and to pertinent limit conviction to evidence request consideration of the trial- ure polluted by bad-acts and unrelated error in admission of evi- bad-acts testimony. question character The actual interrogation dence. The decision on the (which is whether the decision discretional testimony part suppressed as what was) court, clearly it of the on admis- part what was admitted resulted from a evidence, sion improperly even if exer- Likewise, pretrial suppression hearing. cised, now will achieve a constitutional- proper objection taken to the admis- right-denial purview status within prior sion into evidence of marital difficul- post-conviction-relief statute. This the- physical resulting ties and in a de- abuse inquiry sis is directed to the whether what nied motion in limine. appeal could a reversible on be error be- record, In rational of the review actual constitutionally comes a question little but exists that the bad-acts post-conviction review after de- interrogation evidence and the is attached resulting appellate fault from mistake of presented should appeal sues have been on counsel. adequately protect due-process I philosophical premise would advance in de non-self-incrimination interests of the the admonition of Chief Warren in Justice particularly fendant. This failure is not States, Coppedge v. United differentiable from failure of lawyer (1962): L.Ed.2d requirements of a

meet statute of limita “ * * * society deprive When acts one invoking tions a reasonable suf probability life, members of liberty its ficient to out undermine confidence property, takes its most awesome Moorman, come. See State v. 320 N.C. steps. general respect for, No nor 358 S.E.2d 502 where reversal to, adherence the law as a whole can counseling for a number of de well occurred expected judicial recognition without especially provide any fects but failure to paramount prompt, need for of what was announced a de emi- evidence fair and opening nently proce- statement. See Robi sober criminal law fense also (10th Maynard, employ 829 F.2d 1501 Cir. dures. methods we son 1987), significant appellate failure to raise enforcement of our criminal law have appeal (prosecutorial aptly issue state court called the been measures counsel, petition post-conviction appellate responded for re- amended to which the State lief, strongly stated were additional contentions lack identification of acts foreclosed involving property prosecuto- made theft appellate relief. Lack of effectiveness coun- misconduct, rial which contentions are sel is mechanical in near definitional character presented in this as issues now stated constitutionally review to record determine Appellant reviewed. did and thus will not be clearly challenged leading events to conviction. question raise the ineffectiveness quality of our civilization judged.” hearing

I remand for a factual would trial, adequate

the motion for new presented

consideration of basis relief, uncluttered

post-conviction escape from substantive

waiver-defined

merit review. SANCHEZ,

Joseph Blaz *40 (Defendant),

Appellant Wyoming,

The STATE of (Plaintiff). Appellee

No. 87-119. Wyoming.

Supreme Court of

March 1988.

Rehearing April Denied