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Gunter v. Pulsipher

United States District Court, D. Utah

February 27, 2019

DAVID GUNTER, Petitioner,



         District Judge Tena Campbell In a pro se habeas-corpus petition and addendum, (Docket Nos. 3 & 33), inmate David Gunter, attacks his state conviction. 28 U.S.C.S. § 2254 (2018). With the liberal construction due a pro se litigant, Eldridge v. Berkebile, 791 F.3d 1239, 1243 n.4 (10th Cir. 2015), the Court has carefully considered all relevant documents, rules and statutory provisions.

         Being fully advised, the Court concludes that all Gunter's claims, but one, are procedurally defaulted. And, on the remaining claim, Gunter does not overcome the federal habeas standard of review. The Court therefore denies the petition with prejudice.


         A portion of the background is quoted from the Utah Court of Appeals's opinion:

Gunter was charged with [crimes]. The trial court appointed attorney Aric Cramer to represent Gunter. Cramer conducted several rounds of discovery, issued subpoenas, and obtained court-ordered funding to pay for a private investigator.
The trial court continued a preliminary hearing originally scheduled for January 23, 2009, to February 6, 2009, based on the State's motions indicating its witnesses were unavailable to testify on the original date. Thereafter, the February 6 hearing was continued for reasons that are not apparent from the record. Cramer did not object to either continuance and used the additional time to conduct discovery.
. . . . At [a] review hearing, Gunter failed to appear. The trial court ordered the bond forfeited and issued a $100, 000 cash-only warrant for Gunter's arrest. Gunter was arrested at his home. . . . At a new review hearing on July 21, 2010, the trial court again allowed Gunter to be released on bond.
. . . . Approximately two weeks before trial, Gunter replaced Cramer with private counsel, Nicholas Chamberlain. The substitution of counsel filed by Chamberlain contains no indication that his appearance was for a limited purpose.
Gunter again failed to appear for a review hearing one week before trial. That same day, Chamberlain filed a motion to suppress [a] recorded telephone conversation between Gunter and [victim]. After jury selection was completed on the first day scheduled for trial, the trial court held an evidentiary hearing on the motion to suppress. The trial court denied the motion and the trial proceeded the following day.
Gunter also did not appear for trial. The trial court concluded that Gunter "had voluntarily absented himself" and proceeded with the trial in Gunter's absence. In doing so, the trial court admonished the jury not to make any negative inferences based on Gunter's absence. Chamberlain represented Gunter during the suppression hearing and at every stage of trial, without giving the trial court any indication that he was appearing for a limited purpose. Despite Gunter's absence, Chamberlain never asked for a continuance, informed the trial court whether he knew where Gunter was, objected to proceeding with trial in absentia, or otherwise addressed Gunter's absence on the record. Chamberlain did . . . successfully move for a directed verdict on one count . . . .
The jury convicted Gunter of the remaining count[s] . . . . The trial court issued a $200, 000 cash-only warrant for Gunter's arrest and ordered that his second bond be forfeited. Chamberlain then withdrew as counsel. Several months later, Gunter was arrested in Mexico and extradited to Utah. At that time, the trial court appointed posttrial counsel to represent Gunter.
Posttrial counsel filed a motion for a new trial alleging that the trial court conducted an inadequate inquiry into the voluntariness of Gunter's absence from trial, that the trial court could not have found Gunter voluntarily absent if it had known all the facts, and that Chamberlain was ineffective at trial due to the lack of preparation time and his inexperience. The motion for a new trial included an affidavit from Gunter in which he claims that he hired Chamberlain on a limited engagement to pursue only the suppression motion. Gunter's affidavit further indicates that he was stranded in Laughlin, Nevada during trial, that he had informed Chamberlain of that fact the day before trial, and that he spoke with Chamberlain at least six times during the trial proceedings.
On August 10, 2011, the trial court heard arguments on Gunter's motion for a new trial prior to sentencing. Gunter argued that his absence was not voluntary because he was stranded in Nevada and that Chamberlain ineffectively failed to provide that information to the trial court. Gunter also claimed that the trial court should have sua sponte reappointed Cramer because he had "prepared a defense" for trial and had effectively used the services of the private investigator, while Chamberlain was obviously unprepared. In response, the State argued that there was no evidence beyond Gunter's own statements that he was actually stranded in Nevada during trial and that, because Gunter had chosen to replace Cramer with Chamberlain two weeks before trial, he had caused any resulting prejudice. After argument, the trial court denied the motion for a new trial, indicating only that "[t]he motion for a new trial does not have sufficient legal grounds to support it." The trial court then proceeded with sentencing.
Gunter's allocution included a statement to the effect that he was stranded in Nevada during trial. The trial court replied that Gunter had "voluntarily absented [him]self from the trial of this matter" and specifically indicated that Gunter lacked credibility "[i]n view of [his] continuing adherence to a position that bears no relationship to the truth." The trial court then sentenced [him] . . . .

State v. Gunter, 2013 UT App 140, ¶¶ 3-12.

         Gunter timely appealed, with two issues: (I) Plain error. “Gunter claim[ed] that the trial court erred in holding Gunter's trial in absentia because the trial court did not properly inquire into whether Gunter was voluntarily absent.” Id. at ¶ 14. (II) Ineffective assistance. (A) Pretrial counsel. “Gunter . . . alleges that he received ineffective assistance of counsel because his pretrial counsel, Cramer, failed (1) to effectively communicate with Gunter in preparation for trial and (2) to obtain Gunter's consent to a continuance of the preliminary hearing.” Id. at ¶ 15. (B) Trial counsel. “Gunter also claims that he received ineffective assistance of counsel because his trial counsel, Chamberlain, failed (1) to inform the trial court that Gunter had contacted counsel regarding circumstances surrounding his absence from the trial proceedings and (2) to provide effective assistance where he was hired for the limited purpose of representing Gunter on a suppression issue and not in the trial proceedings.” Id.

         On direct appeal, the Utah Court of Appeals rejected Gunter's claims on June 6, 2013. Id. at ¶ 39. More specifically, the court concluded

Although the trial court erred in proceeding with trial in absentia without conducting an adequate inquiry into whether Gunter's absence was voluntary, the error was harmless due to the trial court's posttrial consideration of further evidence on that issue and its unchallenged finding that Gunter was voluntarily absent from trial. Gunter has failed to establish that either his pretrial counsel or trial counsel rendered ineffective assistance.


         Less than two weeks later, on June 19, 2013, appellate counsel wrote Gunter a letter to tell him that counsel would no longer be representing him:

Our appointment as your attorney is limited to this first appeal. Therefore, at this time our firm's representation of you in this matter is now concluded and we ...

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