Posted on 06/26/2004 1:18:46 PM PDT by Theodore R.
Henderson denied relief Attorney Tim Newcomb could ask Supreme Court to review the case
By Juliette Rule rep9@wyomingnews.com Published in the Wyoming Tribune-Eagle
CHEYENNE - Russell Henderson has been denied his petition for post-conviction relief, and his attorney won't be allowed to amend that petition, which he filed in April.
That decision handed down by Albany County District Judge Jeffrey Donnell favors the state but is a blow to the case presented by Laramie attorney Tim Newcomb. He advocated to restore the rights he said were lost by the man serving two consecutive life sentences for his role in the 1998 murder of University of Wyoming student Matthew Shepard.
On the heels of Friday's decision, Newcomb could ask the Wyoming Supreme Court to review the case, but a direct appeal of the decision isn't allowed under Wyoming court rules.
Newcomb wouldn't say if he will pursue that avenue, but Wyoming Attorney General Pat Crank said he suspects that's the next move.
"If they do, we'll oppose it at that junction," he said.
In his petition for relief, Newcomb asked to restore Henderson's rights, in effect restarting the post-conviction clock to April 1999.
Had Newcomb been allowed to pursue the matter in state district court and been granted relief, he would have had two options:
• Henderson could have appealed the conviction or sentencing decision. That motion must be filed within 30 days of sentencing - a deadline long since past in the case.
• Henderson also would have been afforded an opportunity to ask for a sentence reduction. Under Wyoming rules, that must be filed within one year of sentencing.
But Henderson didn't know of those options and the deadlines, and the state public defender who represented him at trial didn't tell him he could appeal the decision, even after entering a guilty plea, according to court documents.
Assistant attorney general Melissa Swearingen filed a motion to dismiss the matter in May, and Donnell heard arguments 10 days ago in Laramie.
Just after Swearingen filed her motion, Newcomb asked the court to allow him to amend his petition to include the claim that Henderson was denied effective assistance of trial counsel - a key component in Wyoming if post-conviction relief is to be granted.
Swearingen said in her motion to dismiss that Newcomb had failed in his petition to make any claim of error in the proceedings.
The Shepard murder case brought much media attention to Wyoming and the college town of Laramie in particular. Some said Henderson and co-defendant Aaron McKinney were motivated by a hatred for gays. Shepard was openly gay.
The three met at a local bar and left together. Henderson was behind the wheel. During the ride, Shepard was struck repeatedly with a handgun in the course of a robbery. While McKinney did the hitting, it was Henderson who got the rope and tied Shepard's hands together and to a fence pole, according to Donnell's decision letter.
"We're pleased that Judge Donnell ruled in our favor," Crank said. "They guy committed an incredibly violent crime and entered into a plea agreement with the state of Wyoming. We're pleased Judge Donnell upheld that."
McKinney also is serving life sentences. He waived his right to appeal after a jury convicted him in 1999.
The state's high court last granted a writ of review in May. That was the request of death row inmate James Harlow, who was convicted in 1998 for the murder of a state penitentiary officer.
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If he had shot President Reagan he would be out walking the streets by now.
Man whatthe heck did he do...shoot a spotted owl?
No, he murdered someone. And the court gave him a sentence. Unfortunately, he's trying to appeal that sentence. Which is tough to do when you plead guilty.
But Henderson didn't know of those options and the deadlines, and the state public defender who represented him at trial didn't tell him he could appeal the decision, even after entering a guilty plea, according to court documents.
Clearly grounds for appeal under a V6 rule (ineffective assistance of counsel)
Just after Swearingen filed her motion, Newcomb asked the court to allow him to amend his petition to include the claim that Henderson was denied effective assistance of trial counsel - a key component in Wyoming if post-conviction relief is to be granted. Swearingen said in her motion to dismiss that Newcomb had failed in his petition to make any claim of error in the proceedings.
Wow. Go figure the odds of having two attorneys that screw up back to back..
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