United States District Court, D. Utah
MEMORANDUM DECISION & ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
MFFER UNITED STATES DISTRICT COURT CHIEF JUDGE .
the Court is Petitioner's habeas-corpus petition.
(Docket Entry #4.) Having carefully reviewed the
parties' pleadings and arguments, the Court concludes
that Petitioner is not entitled to habeas relief. The Court
therefore denies the petition. The Court also agrees with
Respondent that Petitioner's extra-record proffers are
ineligible for consideration.
with Jackie, Petitioner kidnaped and assaulted the victim,
who suffered from chronic drug addiction, drug-related
psychosis, and other mental illnesses. A jury convicted of
Petitioner of aggravated assault and kidnaping. In a
published opinion, the Utah Court of Appeals affirmed the
conviction, State v. King, 2012 UT App 203, 283 P.2d
980, and the Utah Supreme Court denied a writ of certiorari,
State v. King, 288 P.3d 1045 (Utah 2012).
now seeks federal habeas relief. His petition asserts five
ineffective-assistance-of-counsel claims: failures to (1) get
the victim's mental-health records to use as exculpatory
evidence; (2) consult a mental-health expert about the
victim; (3) raise proper objections about Detective
Gordon's testimony as to her interview with Jackie; (4)
address the exculpatory potential of the detective's
lying and coercive interview techniques with Jackie; and, (5)
address timing and surfacing of, and inconsistencies in, the
second interview transcript of Jackie's interview with
one and two were exhausted by presentation to the state high
court. Still, Petitioner fails to show a basis for habeas
relief as to these: He does not show that the Utah
courts' merits decisions (1) contradicted or unreasonably
applied controlling United States Supreme Court authority, or
(2) relied on an unreasonable determination of the facts.
claims three, four, and five, he did not present them to the
state high court, and the post-conviction statute of
limitations would now bar him from doing so. Those claims are
thus technically exhausted, but procedurally defaulted, and
barred from merits review in this Court.
district-court proceedings. Petitioner moved for
access to the victim's records from Valley Mental Health.
R30-31. He later filed an amended motion seeking
her mental-health records from the Storefront and Safe Haven
programs as well as records involving her medications.
R33-34. After the State objected, Petitioner submitted
another motion for an order compelling Valley Mental Health
to produce records about the victim's diagnosis and
treatment as to probation for an assault conviction. R43-47,
50-51. The motion also sought information about bank records
and specific medication prescribed for the victim. R50-51.
The motion alleged that such information was relevant because
it regards "[the victim's] credibility."
Id. The State objected to this additional motion,
arguing the records were privileged and did not hold evidence
favorable to Petitioner. R54-60. The court sought more
briefing and scheduled oral argument. R64-66; R148:4-8.
weeks later, Petitioner moved the court to strike oral
argument and set the case for pre-trial conference. R67-68.
Counsel explained that his further research showed that the
defense could not "meet the admissibility requirements
regarding the alleged victims [sic] medical and bank
records." R67;R149:3. The judge granted the motion and
held trial. R69, 70-95.
trial, the jury convicted Petitioner as charged. R96-98.
Petitioner timely appealed.
in the state court of appeals. Before filing his
opening brief, Petitioner filed a motion under Utah Rule of
Appellate Procedure 23B, for a remand to develop evidence
supporting his claims of ineffective assistance. He contended
"trial counsel was ineffective in failing to obtain an
expert witness and failing to discover medical records."
State v. King, No. 20091086, slip op. at 1 (Utah Ct.
App. Oct. 21, 2010). Petitioner submitted, with his motion,
two affidavits purporting "facts not fully appearing in
the record on appeal" and showing the asserted
ineffectiveness. See Utah R. App. P. 23B(b).
court of appeals held that the motion did not meet the
prejudice requirement for a remand because the information
sought was "cumulative impeachment evidence regarding
the victim's general credibility, " which was
"not likely to have resulted in a different
outcome" in light of the remaining evidence supporting
her testimony. King, No. 20091086, at 1.
direct appeal in the court of appeals, Petitioner raised four
ineffective-assistance claims. He argued that trial counsel
was ineffective (1) "because the failure to obtain a
mental health expert witness prevented counsel from
investigating Victim's mental illness"; (2) "in
failing to seek discovery of Victim's mental health
files"; (3) "for failing to object to testimony
from Detective about Jackie's statements during her first
interview"; (4) and "by not objecting to
Detective's testimony concerning Jackie's statements
during the second interview." King, 2012 UT App
203, ¶¶ 18, 31, 35, 48. The court of appeals
rejected these claims. See Id. ¶58.
in Utah Supreme Court. Petitioner petitioned for
writ of certiorari in the Utah Supreme Court. See
generally Respondent's Exhibit A. Here, he asked the
court to review his claims only as to counsel's decisions
to not seek the mental-health records and to not consult a
mental-health expert. Respondent's Exhibit A at iii-iv.
The Utah Supreme Court denied certiorari. State v.
King, 288 P.3d 1045 (Utah 2012) (table).
CLAIMS THREE THROUGH FIVE ARE PROCEDURALLY
says trial counsel should have objected to alleged hearsay
statements (claim three); trial counsel should have objected
to admitting some of Jackie's testimony due to allegedly
coercive interview tactics (claim four); and, appellate
counsel should have raised the trial counsel
ineffective-assistance claim on timing of, surfacing of, and
inconsistencies in the second interview transcript of
Jackie's interview with Detective Gordon (claim five).
Petitioner did not exhaust these claims because he never
presented them to the Utah Supreme Court, either in his
petition for certiorari or in a state post-conviction action.
And because state law would now bar him from presenting these
claims to state courts, the claims are technically exhausted,
but procedurally defaulted under the AEDPA and may not
support habeas relief.
stated, a state prisoner must exhaust his federal claims in
state court before he may seek relief in federal habeas
review. 28 U.S.C.S. §2254(b) & (c) (2017); see
also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per
curiam); Picardv. Connor, 404 U.S. 270, 275 (1971);
Miranda v. Cooper, 967 F.2d 392, 397 (10th Cir.
1992).And a petitioner whose appeal was decided by the Utah
Court of Appeals must seek certiorari review of his federal
claims to the Utah Supreme Court to exhaust state remedies.
Dulin v. Cook, 957 F.2d 758, 759 (10th Cir. 1992);
see also Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th
Cir. 1993) (holding petitioner must seek discretionary review
in state supreme court to exhaust).
petitioner raises claims for the first time in his federal
habeas petition, but those claims would be procedurally
barred if he returned to state court, they are technically
exhausted, but procedurally defaulted, cutting off federal
Failure to exhaust stems from omitting claims from petition
Utah Court of Appeals issued a published decision in
Petitioner's case. King, 2012 UT App 203. As
shown, he then sought certiorari review by the Utah Supreme
Court. King, 288 P.3d 1045. But he did not ask the
Utah Supreme Court to review his ineffectiveness claims about
the detective's hearsay statements, coercive interview
techniques, or appellate ineffectiveness (current claims
three, four and five). Also, Petitioner has not filed a state
Technical exhaustion and procedural default.
Petitioner did not fairly present a federal claim to the
highest state court, the exhaustion requirement in §
2254(b) "refers only to remedies still available at the
time of the federal petition." Engle v. Isaac,
456 U.S. 107, 125-26 n.28 (1982). Therefore, a "habeas
petitioner who has defaulted his federal claims in state
court meets the technical requirements for exhaustion"
because "there are no state remedies any longer
'available' to him." Coleman v.
Thompson, 501 U.S. 722, 732 (1991).
a petitioner no longer has a remedy in state court because
'"the court to which the petitioner would be
required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally
barred' the claims are considered exhausted and
procedurally defaulted for purposes of habeas relief."
Thomas v. Gibson, 218 F.3d 1213, 1220-21 (10th Cir.
2000) (quoting Coleman, 501 U.S. at 735 n.l).
federal claims are defaulted from federal merits review
because state law would now bar merits review in state court
under state procedural rules. The Utah Post-Conviction
Remedies Act (PCRA) "establishes the sole remedy for any
person who challenges a conviction or sentence for a criminal
offense and who has exhausted all other legal remedies,
including a direct appeal." Utah Code Ann. §
78B-9-102(1) (2016). But the right to seek remedy under PCRA
is not unlimited: a statute of limitations bars relief after
one year from when a cause of action accrues. See
Id. § 78B-9-107. Claims three, four, and five are
now barred by the PCRA statute of limitations because more
than one year has elapsed since the claims accrued.
PCRA bars claims that were-or could have been but were
not-presented on appeal. See Id. § 78B-9-106.
Petitioner raised current claims three and four on appeal in
the Utah Court of Appeals, where they were disposed of on the
merits. See King, 2012 UT App 203, ¶¶
35-57. He would thus be barred from getting a second shot at
those claims in a post-conviction petition.
statute of limitations and procedural bar would preclude
relief for claims three, four, and five. In no event, may
Petitioner now present them to the Utah Supreme Court for
merits review. Thus, those claims are now technically
exhausted and procedurally defaulted for federal habeas
purposes. See Thomas, 218 F.3d at 1220-21.
exception to the procedural-default rule.
Court "may not consider issues raised in a habeas
petition 'that have been defaulted in state court on an
independent and adequate procedural ground unless the
petitioner can demonstrate cause and prejudice or a
fundamental miscarriage of justice.'"
Thomas, 218 F.3d at 1221 (alteration in original)
(quoting English v. Cody, 146 F.3d 1257, 1259 (10th
procedural default may be excused only if he shows
'"cause for the default and actual prejudice as a
result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.'" Dulin
v. Cook, 957 F.2d 758, 760 (10th Cir. 1992) (quoting
Coleman, 501 U.S. at 750.) To meet the
"cause" standard, Petitioner must show that an
objective factor external to the defense kept him from
complying with state procedural rules. Maes v.
Thomas, 46 F.3d 979, 987 (10th Cir. 1995) (citing
McCleskey v. Zant, 499 U.S. 467, 493-94 (1991)). To
establish prejudice stemming from procedural default, a
habeas petitioner bears "the burden of showing, not
merely that the errors at his trial constituted a
possibility of prejudice, but that they worked to
his actual and substantial disadvantage, infecting his entire
trial with errors of constitutional dimensions."
United States v. Frady, 456 U.S. 152, 170 (1982)
(emphasis in original).
has not acknowledged the procedural problems with his claims,
so he has also not offered any reason to excuse them. Because
he fails to show cause for his procedural default, this Court
need not consider the defaulted issue. Maes, 46 F.3d
at 987; Steele v. Young, 11 F.3d 1518, 1522 n.7
(10th Cir. 1993).
fundamental-miscarriage-of-justice exception applies only
when a constitutional violation probably has resulted in the
criminal conviction of one actually innocent. Herrera v.
Collins, 506 U.S. 390, 404 (1993); Watson v. New
Mexico, 45 F.3d 385, 387 n.2 (10th Cir.1995). Petitioner
has not asserted, let alone shown, that a constitutional
violation caused him to be convicted of a crime that he did
alleges no cause or prejudice for failing to properly raise
his claims in the Utah Supreme Court. Nor does he allege that
failure to consider his claims will result in a fundamental
miscarriage of justice. This Court therefore denies these
claims as procedurally defaulted.