District Court, Ogden Department The Honorable Ernest W.
Jones No. 160903792
Randall W. Richards, Attorney for Appellant
D. Reyes and Erin Riley, Attorneys for Appellee
Gregory K. Orme authored this Opinion, in which Judges Kate
Appleby  and David N. Mortensen concurred.
Appellant Riqo Perea challenges the district court's
order dismissing his petition for postconviction relief that
was premised on a claim of factual innocence. We affirm.
Perea, a member of the Ogden Trece gang, was visiting an
Ogden home with several friends, including other Trece gang
members. He got into a heated argument with members of the
rival Norteños gang who were attending a wedding
reception at a house across the street. Perea and his friends
then got into a vehicle. As the vehicle pulled away, Perea,
in the front passenger seat, climbed out the window, reached
over the roof, and fired ten shots into the wedding crowd.
Two people were killed, and others were injured.
A few days later, Perea confessed to police that he was the
only person in the vehicle with a gun and that he fired the
shots into the crowd. He also told police that he used a .22
caliber weapon, although the police had not disclosed that
.22 was the caliber of gun used in the shooting. At trial, a
witness (Witness), who had been standing on the walkway of
the house where the wedding was held, testified that it was
Perea who fired from the vehicle into the crowd. Passengers
in the vehicle also testified that it was Perea who fired the
shots. A jury convicted Perea on two counts each of
aggravated murder and attempted murder. He was sentenced to
life in prison without the possibility of parole for the
aggravated murder convictions and three years to life for the
attempted murder convictions.
Perea appealed his convictions. The Utah Supreme Court upheld
them and noted "the overwhelming evidence of Mr.
Perea's guilt." See State v. Perea, 2013 UT
68, ¶ 103, 322 P.3d 624. The Court expressly upheld the
admission of Perea's confession into evidence.
Id. ¶ 96. Perea later filed a petition for
postconviction relief, but the district court summarily
dismissed it, determining that the Supreme Court, on direct
appeal, had already adjudicated the claims raised in the
petition. This court affirmed the district court's
dismissal of that postconviction petition. See Perea v.
State, 2017 UT App 67, ¶ 7, 397 P.3d 770.
In 2015, Witness provided an affidavit to Perea's
counsel, declaring that she did not see who fired the gun
from the vehicle and that she never saw Perea with a gun that
evening. She also stated that she felt "the police were
pressuring [her] to testify in a certain way" at trial.
Perea filed this postconviction factual innocence petition
based on Witness's affidavit, contending that he was
convicted on the strength of perjured testimony.
The State moved for summary judgment, arguing that
Perea's "pleaded facts and proffered evidence . . .
are insufficient as a matter of law to demonstrate that he is
entitled to factual innocence post-conviction relief."
Determining that "the evidence presented by [Perea] does
not show that he did not engage in the conduct for which he
was convicted," the district court granted the motion
and dismissed Perea's petition. Perea appeals.
Perea contends that the district court erred in summarily
dismissing his factual innocence petition without holding an
evidentiary hearing. We review the district court's
decision de novo. See Gressman v. State, 2013 UT 63,
¶ 6, 323 P.3d 998.
To establish factual innocence, the Utah Post-Conviction
Remedies Act "contemplates a two-stage process,"
and "[s]ection 78B-9-402 sets forth what a petitioner
must do at the first stage to receive an evidentiary hearing
on her petition for factual innocence." Brown v.
State, 2013 UT 42, ¶ 40, 308 P.3d 486. See
Wamsley v. State, 2014 UT App 254, ¶ 9, 338 P.3d
266. After a petition is filed, the district court conducts
an initial review, determining whether the allegations in the
petition are "merely relitigating facts, issues, or
evidence presented in previous proceedings or presenting
issues that appear frivolous or speculative on their
face," and whether "the petition has ...