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Cheek v. Crowther

United States District Court, D. Utah

September 11, 2017




         THIS MATTER IS BEFORE THE COURT on Petitioner John Cheek's petition for writ of habeas corpus. 28 U.S.C.S. § 2254 (2017). The Court has carefully considered the petition, Respondent's answer, Petitioner's objections, and relevant law. Because Petitioner is pro se, the Court interprets his petition liberally. Nevertheless, he must still meet all required elements to state a claim for relief. See United States v. Lee Yang Lor, 706 F.3d 1252, 1256 (10th Cir. 2013).

         Now being fully advised, the Court concludes that Petitioner's claims are either procedurally defaulted or invalid under the federal habeas standard of review. The petition is therefore dismissed.


         Based on a K-Mart heist, Petitioner was charged with aggravated robbery. At trial, Officer Gordon testified (consistent with his police report) that Petitioner admitted to using a black airsoft gun that looked real. He said Petitioner told him that Petitioner threw the gun into a gas-station dumpster near the K-Mart after the robbery. Gordon testified that he did not find the gun in the dumpster. Petitioner testified that he neither pointed a gun at store employees nor told Officer Gordon that he used an airsoft gun. Petitioner asserted instead that he had a black phone in his hands that he pointed at employees.

         The jury convicted Petitioner of aggravated robbery and the trial court imposed an indeterminate sentence of five years to life at the Utah State Prison.

         Petitioner timely appealed, with one ineffective-assistance-of-counsel claim. He argued that his trial attorney had an actual conflict of interest that adversely affected his representation and so his conviction should be overturned. To develop the factual record needed to support his claim, Petitioner made a Utah Rule of Appellate Procedure 23B motion. The motion sought a remand from the Utah Court of Appeals to the district court to let the court hold an evidentiary hearing where Petitioner could present the non-record evidence he attached to his motion (e.g., affidavits from himself, trial counsel, and a potential witness, Katherine Zamora).

         Petitioner's affidavit reiterated his denials at trial that he used an airsoft gun that he later threw in a dumpster. But he also alleged extra-record evidence that he learned of Officer Gordon's police report only the morning of trial, and that, if he and counsel had time to prepare witnesses based on the report, he would have asked trial counsel to call Zamora to testify, because she was with him during the time he allegedly possessed and disposed of the gun.

         Trial counsel's affidavit alleged that he concurrently represented Zamora in an unrelated case, and he had explored possibly calling Zamora to testify for Petitioner. But after investigating Zamora's involvement, counsel made a strategic decision not to call her as a witness.

         Zamora alleged in her affidavit that, sometime on the day of the robbery, she met up with Petitioner and drove him around, that she was with him for the rest of the day and overnight, and that she never saw Petitioner with a gun--let alone dispose of a gun--during that time. Zamora stated that, though she would have been willing to testify for Petitioner, she would have wanted an attorney to advise her first. Finally, Zamora alleged that she was concurrently represented by Petitioner's trial counsel in an unrelated case, that she asked counsel about Petitioner's case, and that counsel told her it was unnecessary for her testify.

         Based on the extra-record evidence, Petitioner urged that his trial attorney had a conflict of interest by representing Petitioner and Zamora at once. He said as much because, while Zamora could have testified for him, she also possibly faced charges as an accomplice or for obstructing justice if she testified. He argued that trial counsel then had a conflict because counsel's duty of loyalty to him was contrary to counsel's duty of loyalty to Zamora. The conflict of interest, Petitioner argued, prevented counsel from calling Zamora to testify for him.

         The Utah Court of Appeals summarily rejected Petitioner's argument and affirmed his conviction. Petitioner then sought a rehearing. He asked the court of appeals to reconsider his argument in terms of actual conflict of interest, rather than characterizing his argument as an ineffective-assistance claim for failing to call a potential witness. He also raised a new claim that counsel was ineffective for not seeking a continuance of the trial once counsel became aware of the police report and that Officer Gordon was going to testify.

         In denying Petitioner's rehearing petition, the court explained that Petitioner's allegations were insufficient to show that trial counsel knew of Zamora's value as a witness to rebut Officer Gordon's testimony. No conflict of interest could exist because no choice between clients existed. Moreover, the court of appeals determined that, even if trial counsel were aware of Zamora's possible testimony, Petitioner failed to show an actual conflict of interest. That is, he did not show a choice to advance Zamora's interests over Petitioner's--i.e., he did not show that Zamora could have faced criminal charges based on her alleged testimony. Finally, the court of appeals refused to consider Petitioner's new claim that counsel was ineffective for not seeking a continuance. The court stated that the claim was not new; could have been included in Petitioner's brief; arguments before the court were ruled upon; and the new claim was beyond the rehearing petition's scope.

         Petitioner sought from the Utah Supreme Court certiorari review, which was denied on January 21, 2014. See State v. Cheek, 320 P.3d 676 (Utah 2014). He timely filed a state post-conviction petition challenging appellate counsel's representation and raising the identical trial-counsel-ineffectiveness claim he presented in his opening appellate brief. The state district court dismissed the petition. Petitioner did not appeal.



         Petitioner argues his trial attorney was ineffective for not requesting a continuance when he received new discovery from the State on the trial's first day. He asserts that because counsel was unaware until then that Officer Gordon was going to testify, counsel should have requested a continuance. Petitioner contends that, instead of requesting a continuance, counsel had him take the witness stand--unprepared--to rebut Officer Gordon's testimony that Petitioner confessed to using an airsoft gun during the robbery. Petitioner also alleges prosecutorial misconduct because the prosecutor did not timely disclose Officer Gordon's police ...

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