United States District Court, D. Utah
GERBER A. FLORES, Petitioner,
STATE OF UTAH, Respondent.
ORDER GRANTING MOTION TO DISMISS & MEMORANDUM
N. Parrish United States District Court Judge
Gerber A. Flores, has filed a pro se habeas corpus
petition. See 28 U.S.C. § 2254. For the reasons
below, the court grants Respondent's motion to dismiss
was convicted in Utah state court. Upon appeal, the Utah
Court of Appeals affirmed the conviction. Petitioner did not
file a certiorari petition in the Utah Supreme
Court. Neither did Petitioner file a state habeas
corpus petition. He now challenges his conviction in
this federal habeas petition.
response to the petition, the State argues that
Petitioner's issues are unexhausted and procedurally
defaulted. The court agrees.
general, before Petitioner may seek review of a Utah
conviction in federal court, he must exhaust all remedies in
Utah courts. See 28 U.S.C. § 2254(b) & (c);
Picard v. Connor, 404 U.S. 270, 275-76 (1971);
Knapp v. Henderson, No. 97-1188, 1998 WL 778774, at
*2 (10th Cir. Nov. 9, 1998). To exhaust his remedies,
Petitioner must properly present to the highest available
Utah court the federal constitutional issues on which he
seeks relief. See Picard, 404 U.S. at 276;
Knapp, 1998 WL 778774, at *2-3. Here, because he
filed neither a petition for writ of certiorari nor
a state habeas corpus petition, Petitioner did not
present any issue to the highest Utah court available, the
Utah Supreme Court. His claims before this court are
Tenth Circuit has declared that when a petitioner has
"'failed to exhaust his state remedies and 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 federal habeas relief." Thomas v. Gibson,
218 F.3d 1213, 1221 (10th Cir. 2000) (quoting Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991)). Utah's
Post-Conviction Remedies Act states, "A person is not
eligible for relief under this chapter upon any ground that .
. . was raised or addressed at trial or on appeal [or] could
have been but was not raised at trial or on appeal."
Utah Code Ann. § 78B-9-106(1) (2017); compare Hale
v. Gibson, 227 F.3d 1298, 1328 (10th Cir. 2000)
("Oklahoma bars collateral review of claims . . . that
could have been raised on direct appeal but were not.
Accordingly, [petitioner] has defaulted his claim.").
Under Utah law, then, Petitioner may not raise his current
arguments in future state habeas petitions, and the
state courts would determine them to be procedurally barred.
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 omitted)
(citation omitted). Petitioner argues cause and prejudice are
at play here. Specifically, Petitioner asserts cause and
prejudice stem from his lack of legal knowledge and
experience and inability to speak English.
satisfy the 'cause' standard, Petitioner must show
that 'some objective factor external to the defense'
impeded his compliance with Utah's procedural
rules.” Dulin v. Cook, 957 F.2d 758, 760 (10th
Cir. 1992) (citations omitted). Meanwhile, to demonstrate
prejudice, "'[t]he habeas petitioner must show not
merely that . . . errors . . . created a possibility of
prejudice, but that they worked to his actual and
substantial disadvantage.'” Butler v.
Kansas, No. 02-3211, 2002 WL 31888316, at *3 (10th Cir.
Dec. 30, 2002) (unpublished) (alteration in original)
(quoting Murray v. Carrier, 477 U.S. 478, 494 (1986)
(emphasis in original)).
has not met his burden of showing that objective factors
external to the defense hindered him in meeting state
procedural demands. Under Tenth Circuit case law, lack of
legal resources and knowledge (including Petitioner's own
misunderstanding) are circumstances that do not carry
Petitioner's burden to show cause. Gilkey v.
Kansas, No. 02-3227, 2003 U.S. App. LEXIS, at *6 (10th
Cir. Feb. 4, 2003) (unpublished) (holding limited knowledge
of the law is insufficient to show cause for procedural
default); Rodriguez v. Maynard, 948 F.2d 684, 688
(10th Cir. 1991) (concluding petitioner's pro se
status and his corresponding lack of awareness and training
on legal issues do not constitute adequate cause for his
failure to previously raise claims). “Indeed, these are
factors, together with the potential language barrier, that
are internal to Petitioner's defense.”
Ardon-Aguirre v. Sorensen, No. 2:12-CV-914 DB, 2013
U.S. Dist. LEXIS 150269, at *11 (D. Utah October 18, 2013)
(emphasis in original).
the court concludes that Petitioner's issues are
procedurally defaulted. And these issues do not qualify for
consideration under the cause-and-prejudice or
miscarriage-of-justice exceptions to the procedural bar. The
court thus denies Petitioner federal habeas relief.
challenges are procedurally barred and do not qualify for
exceptional treatment. IT IS THEREFORE ORDERED that
Respondent's motion to ...