United States District Court, D. Utah
MEMORANDUM DECISION & ORDER DENYING HABEAS-CORPUS
A. KIMBALL United States District Judge.
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
portion of the background is quoted from a Utah Supreme Court
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,
background is drawn from the Utah Court of Appeals’s
opinion on appeal from denial of Petitioner’s state
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.
Petitioner’s Counsel by Litigation Stage
Robert Steele, public defender
Direct appeal (Utah Ct. App.)
Certiorari petition (Utah S.Ct.)
Trial court resentencing
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
Post-conviction appeal (Utah Ct. App.)
Landon Allred; pro se
Post-conviction certiorari petition (Utah S.Ct.)
Grounds Raised by Litigation Stage
appeal - Finlayson, 956 P.2d at 283.
Aggravated kidnaping conviction must merge with rape and/or
forcible sodomy convictions.
Trial court erroneously gave State more peremptory challenges
than Petitioner received.
Trial court erred in excluding Petitioner’s expert
witness testimony about Japanese culture.
Prosecutorial misconduct of three improper statements during
• a. that Petitioner testified that he had shown the
victim a gun;
• b. that State had done genetic testing on sperm taken
• c. that Petitioner was honing his story.
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
review on direct appeal - Finlayson, 2000 UT 10;
(Doc. No. 66-1).
Merger issue (analyzed under ineffective assistance of
Exclusion of expert testimony on Japanese culture.
Prosecutorial misconduct as to improper closing-argument
Ineffective assistance of counsel:
• a. merger issue;
• b. not objecting to prosecutor’s closing
• c. inadequately impeaching victim with past
inconsistencies due to counsel not obtaining certified
direct appeal – State v. Finlayson 2002 UT
Whether, during resentencing, Petitioner was prejudiced by
trial court’s failure to resolve inconsistencies
between trial testimony and official version of offense in
Victim’s entire testimony at trial was improper hearsay
(read from notes she prepared (Doc. No. 54-9, at 6)).
certiorari petition - Finlayson, 2004 UT
Utah Court of Appeals err in applying Utah statute and
trial-court jurisdiction to resentencing?
Victim’s entire testimony at trial was improper
hearsay. (Doc. No. 54-9, at 6)).
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.
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
• 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
• e. submit for decision motions in limine by pre-trial
• 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
• h. object to victim reading from notes.
a. State failed to disclose
• all evidence obtained through boyfriend;
• November 1994 interview;
• victim-witness coordinator did victim’s written
• audio of December 1994 Detective Chandler interview.
b. During trial
• objected to use of uncertified ...