Original Proceeding Petition for Writ of Review District Court of Carbon County The Honorable Wade E. Waldrip, Judge
The opinion of the court was delivered by: Voigt, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
VOIGT, J., delivers the opinion of the Court; KITE C.J., files a concurring opinion.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] We granted the appellant's Petition for Writ of Review in which we were asked to review the district court's dismissal of the appellant's Verified Petition for Post-Conviction Relief. We agree with the district court that the appellant's claim of ineffective assistance of trial counsel is barred by Wyo. Stat. Ann. § 7-14-103(a)(iii) (LexisNexis 2011). Therefore, the district court did not have jurisdiction to consider the petition. Having no better jurisdiction than did the district court, we likewise dismiss the petition before this Court.
[¶2] Where an appellant has raised a claim of ineffective assistance of trial counsel in his direct appeal, and that claim has been decided against him on the merits, may he raise a claim of ineffective assistance of trial counsel, based upon different allegations, in a petition for post-conviction relief?
[¶3] The appellant was convicted of two counts of first-degree sexual assault and one count of robbery. Our opinion affirming those convictions upon direct appeal is found at Schreibvogel v. State, 2010 WY 45, 228 P.3d 874 (Wyo. 2010). In that proceeding, the appellant alleged, inter alia, that his trial counsel was ineffective for failing to object to inadmissible evidence, and for failing adequately to cross-examine the victim in regard to the defense of consent. Id. at ¶¶ 47-49, at 889-90. The appellant did not prevail on either allegation. Id. at ¶¶ 48, 50, at 889-90.
[¶4] Just less than a year after losing his appeal, the appellant filed in the district court a Verified Petition for Post-Conviction Relief. In his petition, the appellant alleged that his appellate counsel was ineffective for not raising in the direct appeal two additional allegations of trial counsel's ineffectiveness: (1) failure to pursue as a defense the synergistic effect of the victim's simultaneous use of the prescription drug Paxil and alcohol; and (2) failure to investigate and pursue expert medical testimony as to the cause of an injury to the victim's face. In addition, the appellant also alleged that appellate counsel rendered ineffective assistance by failing to seek an evidentiary hearing under W.R.A.P. 21.
[¶5] The State responded to the petition by filing a Motion to Dismiss Petition for Post-Conviction Relief. The State cited Wyo. Stat. Ann. § 7-14-103(a)(iii) for the proposition that the appellant's claim of ineffective assistance of trial counsel was procedurally barred because it had been determined on the merits in the direct appeal. The district court heard the motion to dismiss and subsequently issued a lengthy decision letter and order dismissing the petition. The district court's conclusion was as follows:
The State's Motion to Dismiss Petition for Post-Conviction Relief is GRANTED. Mr. Schreibvogel's post-conviction claim of ineffective assistance of trial counsel is procedurally barred by Wyoming Statute § 7-14-103(a)(iii) because he raised a claim of ineffective assistance of trial counsel in his direct appeal, which was decided on the merits. Additionally, Mr. Schreibvogel's claim of ineffective assistance of appellate counsel is barred by Wyoming Statute § 7-14-101(b) because it is not a claim of error arising in the proceedings that resulted in his conviction.
[¶6] The appellant's response to dismissal of his petition was to file in this Court a Petition for Writ of Review. We granted that petition, the matter was briefed, and oral argument has been heard, bringing the case to its present posture.
[¶7] Post-conviction relief is a statutory remedy, with the following statutory provisions at issue in the instant proceedings:
Wyo. Stat. Ann. § 7-14-101(b) (LexisNexis 2011) provides in relevant part as follows:
(b) Any person serving a felony sentence in a state penal institution who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the constitution of the United States or of the state of Wyoming, or both, may institute proceedings under this act. . . .
In turn, Wyo. Stat. Ann. § 7-14-103 provides in relevant part as follows:
(a) A claim under this act is procedurally barred and no court has jurisdiction to decide the claim if the claim:
(i) Could have been raised but was not raised in a direct appeal from the proceeding which resulted in ...