State v. Langford , 249 Mont. 385 ( 1991 )

819 P.2d 151 (1991)

STATE of Montana, Plaintiff and Respondent,
v.
Terry Allen Langford, Defendant and Appellant.

No. 89-370.

Supreme Court of Montana.

July 1, 1991.

C.F. MacKay, Anaconda, for defendant and appellant.

OPINION AND ORDER

On July 6, 1989, Terry Allen Langford (Langford), represented by counsel C.F. MacKay (MacKay), filed with this Court a petition for post-conviction relief wherein he alleges that the District Court of the Third Judicial District, Powell County, erred in sentencing him to death on the ground that the death penalty sentence was unconstitutional as a matter of law. On August 3, 1989, this Court stayed this post-conviction proceeding pending the completion of Langford's appeal in Cause No. 89-055 and ordered briefs to be filed. On August 31, 1989, Langford dismissed MacKay and Michael Donahoe (Donahoe) was substituted as his counsel. Donahoe filed the appellant's brief on October 3, 1990.

On June 4, 1991, Langford's appeal in Cause No. 89-055 was decided. State v. Langford (Mont. 1991), 813 P.2d 936 (Langford). In Langford, this Court upheld the constitutionality of Montana's death penalty statutes. Langford, 813 P.2d at 952.

After reviewing the petition for post-conviction relief following our decision in Langford, we note that Langford's memorandum in support of petition for post-conviction relief additionally cites Adamson v. Ricketts (9th Cir.1988) 865 F.2d 1011, cert. denied, ___ U.S. ___, 110 S. Ct. 3287, 111 L. Ed. 2d 795 (1990). In Adamson, the Ninth Circuit Court of Appeals held that Arizona's death penalty statutes were unconstitutional. Adamson, 865 F.2d at 1044-45. Langford argues that Adamson is controlling because the statutory language of Arizona's death penalty statutes is similar to Montana's.

In the briefs filed and in the oral argument in Langford, Donahoe did not cite or rely on Adamson. In the United States Supreme Court's recent decision in Walton v. Arizona (1990), ___ U.S. ___, 110 S. Ct. 3047, 111 L. Ed. 2d 511, the Court upheld the constitutionality of Arizona's death penalty statutes. See also, Nichols v. McCormick (9th Cir.1991), 929 F.2d 507, 509, n. 3, where the Ninth Circuit Court of Appeals discusses the impact of Walton on its prior ruling in Adamson. We therefore hold that Adamson is not controlling. As we have previously held in Langford, Montana's death penalty statutes are constitutional.

IT IS ORDERED:

1. The petition for post-conviction relief is denied.

2. The Clerk of this Court is directed to mail a true copy hereof to the Attorney General, to the Powell County Attorney, to counsel for petitioner and to petitioner personally.

/s/ J.A. Turnage Chief Justice Karla M. Gray William E. Hunt, Sr. Fred J. Weber R.C. McDonough Terry Trieweiler Justices