Opinion
Case No. 20010993-CA.
Filed July 25, 2003. (Not For Official Publication)
Appeal from the Sixth District, Panguitch Department, The Honorable K.L. McIff.
Robert L. Booker, Salt Lake City, for Appellant.
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee.
Before Judges Billings, Bench, and Thorne.
MEMORANDUM DECISION
Petitioner Darren Charles Bluemel appeals from an order dismissing his third petition for post-conviction relief. The trial court dismissed his petition on the ground that the issues raised therein had been twice raised by Bluemel in prior petitions for post-conviction relief and that each prior petition had been dismissed with prejudice. Accordingly, the trial court concluded that the issues raised in Bluemel's third petition for post-conviction relief had been adjudicated previously; and therefore, the petition was "frivolous on its face." On appeal, Bluemel argues that his trial counsel was ineffective and that his two prior petitions for post-conviction relief should not bar his current petition.
Bluemel relies upon the Utah Rules of Appellate Procedure, rules 20 and 5, as a basis for requesting relief in this case. See Utah R.App.P. 20, 5. The district court evaluated Bluemel's petition and concluded that it was, in fact, a petition seeking post-conviction relief pursuant to Utah Rule of Civil Procedure 65C. We agree with this characterization.See Gerrish v. Barnes, 844 P.2d 315, 318-19 (Utah 1992) ("[N]o deference is accorded the lower court's conclusions of law that underlie the dismissal of the petition. We review those for correctness." (quotations and citations omitted)); Utah R.Civ.P. 65C.
On December 11, 2000, Judge Anthony B. Quinn dismissed Bluemel's first petition for post-conviction relief with prejudice. Therein, Judge Quinn upheld the earlier factual finding that Bluemel's guilty plea had been entered knowingly and voluntarily. He also concluded that Bluemel had not shown that his trial counsel's performance prejudiced him.
On March 1, 2001, Judge David L. Mower dismissed Bluemel's second petition for post-conviction with prejudice. In that petition, Bluemel claimed: (1) ineffective assistance of counsel at trial; (2) mental incompetency; (3) violation of the plea agreement; (4) judicial misconduct; (5) conclusions from original appeal drawn on facts not in evidence; and (6) ineffective assistance of counsel on appeal. Judge Mower concluded that claims 1, 2, and 4 had been adjudicated previously and dismissed them. He then reviewed the remaining claims and concluded they were frivolous.
Bluemel appealed neither of these determinations.
Rule 65C(c) of the Utah Rules of Civil Procedure requires a party seeking post-conviction relief to "set forth all claims that the petitioner has." Utah R.Civ.P. 65C(c). The rule explains that "[a]dditional claims . . . may not be raised in subsequent proceedings except for good cause shown." Id. (emphasis added).
Post-conviction relief pursuant to rule 65C is not a substitute for an appeal and we will not consider issues that could have been raised during a direct appeal unless the petitioner demonstrates "unusual circumstances." Gerrish v. Barnes, 844 P.2d 315, 319 (Utah 1992). The same reasoning applies to consecutive petitions for post-conviction relief. See id. However,
[a] procedural default [such as failure to raise a claim during direct appeal or during a previous petition for post-conviction relief] is not always determinative of a collateral attack on a conviction, but an unjustified failure to raise an issue on appeal [or in an earlier petition for post-conviction relief] presents a steep obstacle for the petitioner. In such a situation, the petitioner must present some special reason why the rule should not apply: he or she must demonstrate that it would be "wholly unconscionable not to reexamine the conviction."
Id. (citations omitted).
In this case, it is undisputed that Bluemel filed two prior petitions for post-conviction relief, which were each dismissed with prejudice and which each addressed the same issues raised in his third petition. Yet, Bluemel has not demonstrated why it would be "wholly unconscionable not to reexamine [his] conviction" at this time. Id. Thus, we do not address the merits of Bluemel's appeal.
Accordingly, we affirm.
WE CONCUR: Judith M. Billings, Associate Presiding Judge, and Russell W. Bench, Judge.