United States District Court, D. Utah
MEMORANDUM DECISION & ORDER DENYING HABEAS
DISTRICT JUDGE ROBERT J. SHELBY
Barry Snyder, filed a pro se habeas corpus petition.
See 28 U.S.C.S. § 2254 (2018). Having
thoroughly reviewed the contents of the petition, the
State's answer and Petitioner's response to the
answer, the Court denies the petition.
viewing child-pornography images over the internet,
Petitioner was charged with ten counts of sexual exploitation
of a minor. Petitioner agreed to plead guilty to one count;
in exchange, the State dropped the other nine counts. The
trial court engaged Petitioner in a thorough Rule 11 colloquy
before accepting his guilty plea. Petitioner appealed, but
then withdrew his appeal.
State Post-Conviction Petition
on to seek post-conviction relief in state court, contending
Images he pleaded guilty to viewing were protected speech
under the First Amendment.
Ineffective assistance of trial counsel.
i. Counsel spent little time conferring with Petitioner.
ii. Counsel incorrectly told Petitioner that there were four
or five pornographic images found on his computer when it was
alleged that there were only three.
i. Counsel did not change the plea, specifically once
Petitioner brought him case law that would provide him a
defense and when recognizing there were fewer images than
counsel had originally thought.
ii. Counsel did not ensure Petitioner's presentence
investigation report was correct.
guilty plea was involuntary and induced by threat of
search was illegal because it was done before the search
warrant was issued.
recognized these possible grounds to withdraw his guilty plea
and wrote the trial court letters about them, between the
time he entered his plea and the time when he was sentenced.
Further, when Petitioner responded to the State's
summary-judgment motion, he conceded that the pre-plea
constitutional issues he raised were not separate grounds for
withdrawing his plea, but were “examples of the
ineffective assistance of counsel.” Snyder v.
State, No. 120100137, slip. op at 2 (Utah Dist. Ct. Mar.
28, 2014) (quotation marks and citation omitted). The trial
court thus analyzed all the issues under the umbrella of
ineffective assistance of counsel.
first issue challenging the viewed images as protected under
the First Amendment must instead be framed in terms of
ineffective assistance: Thus, counsel was ineffective in not
challenging the viewed images as protected under the First
Amendment. And the third issue: Counsel was ineffective
because he threatened Petitioner with more charges to induce
a guilty plea. And the fourth issue: Counsel was ineffective
because he failed to challenge the legality of the search of
Petitioner's computer that revealed the pornographic
trial court ruled that all but the two pre-plea instances of
ineffective assistance raised were procedurally barred. This
is because they all could have been raised on the direct
appeal that was withdrawn. Id. at 4-5
(“Pursuant to Utah Code Ann. § 78B-9-106(1)(b),
the [Post-Conviction Remedies Act] is identified as
‘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.' Also under the PRCA, ‘a person is not
eligible for relief under this chapter upon any ground that .
. . was raised or addressed at trial or appeal.' Utah
Code Ann. § 78B-9-106(1)(b). The statute also identifies
another procedural bar that arises when a petitioner raises a
claim that ‘could have been but was not raised a trial
or appeal.' Utah Code Ann. §
denying Petitioner post-conviction relief, the trial court
also analyzed the two pre-plea instance of ineffective
assistance of counsel on the merits using the standard
Strickland analysis. Id. at 3-6 (citing
Strickland v. Washington, 466 U.S. 668 (1984)).
Appeal of State Trial Court's Denial of Post-Conviction
appealed the denial to the Utah Court of Appeals, raising
trial court erred in concluding that Petitioner was barred
from raising ineffective-assistance-of counsel claims under
trial court erred in ruling against Petitioner on summary
judgment because there were genuine issues of material fact
in dispute regarding ineffective assistance of counsel.
trial court improperly denied him representation by pro
affirming the trial court's denial of post-conviction
relief, the court of appeals first noted that “[t]o the
extent that the claims raised would be substantive challenges
to his conviction, the claims were waived by his guilty
plea.” Snyder v. State, 2015 UT App 37, ¶
4. The court further affirmed the trial court in its
dismissal of claims based on the procedural bar found in the
PCRA. Id. ¶ 6. The court noted that Petitioner
tried on appeal to overcome the procedural bar by asserting
ineffective assistance of appellate counsel, but that,
“because this claim is argued for the first time on
appeal in his postconviction case, it is not properly before
this court.” Id. ¶ 6 n.1 (citation
omitted). Also in affirming the trial court, the court of
appeals analyzed the two pre-plea
ineffective-assistance-of-counsel claims under the
Strickland analysis. Id. ¶ 8. The
court finally upheld the trial court in denying Petitioner
appointed counsel in his state post-conviction proceedings.
Id. ¶ 10 n.2 (“Snyder is not entitled to
counsel in this postconviction proceeding.” (Citation
Petition for Writ of Certiorari Regarding Utah Court of
Appeals' Affirmance of State Trial Court ...