United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER OF DISMISSAL
DEE BENSON UNITED STATES DISTRICT COURT
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).
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.
AND PROCEDURAL BACKGROUND
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.
jury convicted Petitioner of aggravated robbery and the trial
court imposed an indeterminate sentence of five years to life
at the Utah State Prison.
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).
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.
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.
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.
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.
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.
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
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.
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 ...