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King v. Bigelow

United States District Court, D. Utah

March 21, 2017

SAMUEL KING, Petitioner,
ALFRED C. BIGELOW, Respondent.



          Before 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.


         Together 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).

         Petitioner 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 the detective.

         Claims 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.

         As to 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.

         State district-court proceedings. Petitioner moved for access to the victim's records from Valley Mental Health. R30-31.[1] 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.

         Three 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.

         After trial, the jury convicted Petitioner as charged. R96-98. Petitioner timely appealed.

         Proceedings 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).

         The 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.

         On 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.

         Proceedings 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).

         II. ANALYSIS


         Petitioner 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.

         As 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).

         When a 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 merits review.

         1. Failure to exhaust stems from omitting claims from petition for certiorari.

         The 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 post-conviction action.

         2. Technical exhaustion and procedural default.

         Though 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).

         But if 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).

         Petitioner's 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.

         And 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.

         PCRA's 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.

         3.No exception to the procedural-default rule.

         This 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 Cir. 1998)).

         Petitioner's 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).

         Petitioner 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).

         The 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 not commit.

         Petitioner 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.


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