United States District Court, D. Utah
MEMORANDUM DECISION & ORDER DENYING HABEAS-CORPUS
CAMPBELL, UNITED STATES DISTRICT JUDGE.
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.
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
portion of the background is quoted from the Utah Court of
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
. . . . 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
. . . . 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.
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.
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.
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 ...