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Finlayson v. State

United States District Court, D. Utah

September 30, 2019

JEFFERY RUSSELL FINLAYSON, Petitioner,
v.
STATE OF UTAH, Respondent.

          MEMORANDUM DECISION & ORDER DENYING HABEAS-CORPUS PETITION

          DALE A. KIMBALL United States District Judge.

         Represented by counsel, Petitioner filed an amended habeas-corpus petition. 28 U.S.C.S. § 2254 (2019). (Doc. No. 50.) The State responded, urging denial. (Doc. No. 54.) Petitioner replied to the response, (Doc. No. 66), and the State replied to Petitioner’s reply, (Doc. No. 72). Having thoroughly reviewed the pleadings and all exhibits, the Court denies the petition.

         I. BACKGROUND

         A portion of the background is quoted from a Utah Supreme Court opinion:

Finlayson raped and sodomized his victim, whom he knew from school. State v. Finlayson, 956 P.2d 283, 286 (Utah Ct. App. 1998) (upholding convictions for rape and forcible sodomy). He was sentenced to concurrent terms of five years to life each for his rape and forcible sodomy convictions. Although he was initially convicted of aggravated kidnaping as well, that conviction was reversed on appeal. Id. at 295. [Utah Supreme Court] affirmed that reversal, State v. Finlayson, 2000 UT 10, ¶ 36 . . . . The trial court then resentenced Finlayson on the rape and forcible sodomy convictions. The sentences mirrored those initially imposed by the trial court. Finlayson appealed that resentencing to the court of appeals.
Before the court of appeals, Finlayson argued that the resentencing was improper because the trial court failed to resolve alleged discrepancies between the official version of the offense as listed in a presentence investigation report and the evidence at trial. In its disposition of Finlayson's appeal of the resentencing, the court of appeals noted the possibility that the trial court lacked jurisdiction to resentence Finlayson, but ultimately affirmed the action of the trial court because it held that Finlayson was not prejudiced by the failure to resolve any alleged discrepancies, and the "new" sentences were unchanged from those originally imposed.
Both parties petitioned . . . for a writ of certiorari.
Because neither [the supreme court] nor the court of appeals ordered the trial court to resentence Finlayson on the affirmed counts--either expressly or impliedly--and there [was] no other provision of law requiring resentencing in this case, the trial court was without jurisdiction to resentence Finlayson. Accordingly, [the supreme court] reverse[d] the court of appeals and order[ed] vacation of the resentencing. The sentences originally imposed by the trial court [were] valid.

State v. Finlayson, 2004 UT 10, ¶¶ 2-4, 16.

         More background is drawn from the Utah Court of Appeals’s opinion on appeal from denial of Petitioner’s state post-conviction petition:

On January 27, 2005, Finlayson filed a pro se petition for post-conviction relief. Over the course of the next two years, Finlayson filed various motions related to his petition. In April 2006, the State filed a motion for summary judgment, to which Finlayson did not respond. In August 2006, Finlayson asked the district court to appoint counsel for him. In January 2007, pro bono counsel appeared on behalf of Finlayson. In February 2008, Finlayson's counsel obtained a court order to examine and copy the handwritten notes referred to by the victim during her trial testimony. Between February 2008 and June 2011, Finlayson and his counsel allegedly met occasionally to research the case, but during this time, counsel "did not file any materials with the Court, nor did he have any contact with counsel for the State." In August 2008, Finlayson was paroled.
In June 2010, Finlayson was reincarcerated in connection with new charges arising from another incident. In September 2011, he was convicted on charges of aggravated kidnapping, aggravated assault, and damage to or interruption of a communication device, for which he was sentenced to six years to life in prison, up to five years in prison, and 180 days in jail, respectively. These sentences were to run concurrently with each other and with any other sentences Finlayson was already serving.
In late 2010, Finlayson's counsel allegedly obtained new evidence pertaining to the post-conviction petition but did not contact the State or file anything with the court. In June 2011, Finlayson sent a letter to the district court requesting an update on the status of his case, at which point he learned that the case file had been destroyed in February 2009. Nearly a year later, in May 2012, Finlayson requested a status hearing on his case, which was held on June 1, 2012. Following the status hearing, the State moved to dismiss the case for failure to prosecute. Subsequently, Finlayson filed a motion to amend and an opposition to the State's 2006 motion for summary judgment.
On November 9, 2012, the district court heard argument on all pending motions. In a memorandum decision issued January 10, 2013, the court granted the State's motion to dismiss for failure to prosecute and denied the remaining motions as moot. Finlayson appeal[ed, asserting] that the district court abused its discretion by dismissing his petition for post-conviction relief for failure to prosecute.
[The court of appeals] determine[d] that the district court did not exceed its discretion by granting the State's motion to dismiss for failure to prosecute. The district court was not required to conduct an interests of justice analysis independent of its analysis of the Westinghouse factors, and it was not required to rule on other pending motions prior to ruling on the State's motion to dismiss. Furthermore, the district court appropriately analyzed the Westinghouse factors. Accordingly, [the court of appeals] affirm[ed].

Finlayson v. State, 2015 UT App. 31, ¶¶ 2-6 (citing Westinghouse Elec. Supply Co. v. Paul W. Larsen Contractor, Inc., 544 P.2d 876, 879 (Utah 1975)), cert. denied, 326 P.3d 1256.

         A. Petitioner’s Counsel by Litigation Stage

Pre-trial

Robert Steele, public defender

Trial

William Parsons

Direct appeal (Utah Ct. App.)

Robert Heineman

Certiorari petition (Utah S.Ct.)

Robert Heineman

Trial court resentencing

Robert Heineman

Second direct appeal (Utah Ct. App.)

Heather Johnson and Robert Heineman

Second certiorari petition (Utah S.Ct.)

Heather Johnson and Robert Heineman

State post-conviction application

Brian Namba

Post-conviction appeal (Utah Ct. App.)

Landon Allred; pro se

Post-conviction certiorari petition (Utah S.Ct.)

pro se

         B. Grounds Raised by Litigation Stage

         Direct appeal - Finlayson, 956 P.2d at 283.

         1. Aggravated kidnaping conviction must merge with rape and/or forcible sodomy convictions.

         2. Trial court erroneously gave State more peremptory challenges than Petitioner received.

         3. Trial court erred in excluding Petitioner’s expert witness testimony about Japanese culture.

         4. Prosecutorial misconduct of three improper statements during closing argument:

• a. that Petitioner testified that he had shown the victim a gun;
• b. that State had done genetic testing on sperm taken from victim;
• c. that Petitioner was honing his story.

         5. Ineffective assistance of counsel because failed to:

• a. raise merger issue;
• b. object to prosecutor’s closing statement;
• c. obtain certified preliminary-hearing transcript;
• d. obtain Korean translator;
• e. obtain Japanese language expert;
• f. raise victim’s recent sexual intercourse with another man.

         6. Cumulative error.

         Certiorari review on direct appeal - Finlayson, 2000 UT 10; (Doc. No. 66-1).

         1. Merger issue (analyzed under ineffective assistance of counsel).

         2. Jury-selection claim.

         3. Exclusion of expert testimony on Japanese culture.

         4. Prosecutorial misconduct as to improper closing-argument comments.

         5. Ineffective assistance of counsel:

• a. merger issue;
• b. not objecting to prosecutor’s closing statement;
• c. inadequately impeaching victim with past inconsistencies due to counsel not obtaining certified preliminary-hearing transcript.

         6. Cumulative error.

         Second direct appeal – State v. Finlayson 2002 UT App. 36.

         1. Whether, during resentencing, Petitioner was prejudiced by trial court’s failure to resolve inconsistencies between trial testimony and official version of offense in pre-sentence report?

         2. Victim’s entire testimony at trial was improper hearsay (read from notes she prepared (Doc. No. 54-9, at 6)).

         Second certiorari petition - Finlayson, 2004 UT 10.

         1. Did Utah Court of Appeals err in applying Utah statute and trial-court jurisdiction to resentencing?

         2. Victim’s entire testimony at trial was improper hearsay. (Doc. No. 54-9, at 6)).

         State post-conviction application - Finlayson v. State, No. 050901691 (Utah 3d Dist. Ct. filed Jan. 27, 2005) - issues listed below are only those similar to and relevant to current federal habeas petition.

         1. Ineffective assistance of trial counsel for failing to:

• a. use victim’s statement to Detective Chandler to impeach testimony inconsistencies and present proper arguments to overcome prosecutor’s objections to impeachment;
• b. present evidence of standing agreement between State and public defender’s office (pre-trial counsel, Robert Steele) to allow use of uncertified transcript and try to introduce uncertified transcript;
• c. investigate facts, thus coming to trial unprepared (i.e., did not seek DNA test, show lack of gun, and object to prosecutor’s introduction of misleading evidence);
• d. move to suppress items seized from Petitioner’s apartment;
• e. submit for decision motions in limine by pre-trial counsel;
• f. lay proper foundation for expert testimony about culture and language;
• g. lay proper foundation for rebuttal character witnesses, thus unable to use Japanese women to testify of consensual sex with Petitioner to undercut victim’s testimony;
• h. object to victim reading from notes.

         2. Prosecutorial misconduct:

a. State failed to disclose
• all evidence obtained through boyfriend;
• November 1994 interview;
• victim-witness coordinator did victim’s written script;
• audio of December 1994 Detective Chandler interview.
b. During trial
• objected to use of uncertified ...

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