Opinion
Case No. 2:01-CV-284.
June 23, 2003.
ORDER
Petitioners, Bryon D. Petersen, Duane M. Willet, and Jon T. Wetzel, inmates at the Utah State Prison, have filed with the Court a habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C.A. § 2254 (West 1994 Supp. 2003). The Court denies their petition.
BACKGROUND
On January 20, 2000, Petitioners filed in Utah state court a petition for post-conviction relief, alleging that "they were denied due process of law and equal protection under the law in the parole release process which determines the actual period a convicted felon spends incarcerated in a correctional facility, and as such, petitioners were given disproportionately longer incarceration periods than those of other inmates similarly situated." On May 9, 2000, Petitioners were present at the state court hearing in which the judge orally announced his decision to dismiss their petition. The judge noted that his decision would be finalized later when he would sign a written order that would be entered as a judgment, triggering Petitioners' ability to appeal his ruling. Under Utah law, the notice of appeal required to start the appellate process "shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." Utah R. App. P. 4(a).
On May 30, 2000, Petitioner Petersen sent the state court a letter stating that he had on May 12 received a copy of an unsigned order, then asking why he and his co-petitioners had not yet received a copy of the signed order. He expressed his concern that he needed the signed order, because he had "only a limited time in which to file [his] NOTICE OF APPEAL." The state court responded by sending Petitioner Petersen a copy of the final order, which had been signed on May 18, 2000 and which Petersen received on June 20, 2000. Petitioners filed with the state court written objections to the state court's delay in sending Petersen a copy of the signed order and failure to send a copy of the signed order to Petitioners Wetzel and Willet.
On June 22, 2000, Petitioner Petersen signed a notice of appeal on behalf of Petitioners, stating he considered, the notice to be timely based on the fact that he received the final order after the deadline for filing an appeal had passed. The notice of appeal was filed in the state court on July 20, 2000.
Neither the Utah Court of Appeals nor the Utah Supreme Court addressed the fact that the notice of appeal was signed only by Petersen. The court of appeals dismissed the appeal as untimely as to all three petitioners. This Court therefore does not delineate on that basis between Petersen and Wetzel and Willet.
Petitioner's appeal was taken to the Utah Court of Appeals, which, as a preliminary matter, sent to Petitioners a letter disclosing that Judge Gregory K. Orme's spouse was then working for the Utah Attorney General's Office, primarily dealing with "state-sponsored student loan programs," but did not work in a "section of the Attorney General's office responsible for this case." The letter stated that Judge Orme did "not believe his disqualification is required" because of his spouse's job but stated that should Petitioners believe differently they could take action. Petitioners then moved to disqualify Judge Orme from their case. The Utah Court of Appeals denied the motion, saying the motion lacked proper support and was not "accompanied by an affidavit as required by Utah R. Civ. P. 63(b), stating facts or reasons why bias or prejudice may exist."
Declaring it lacked jurisdiction because Petitioners had filed their notice of appeal too late, the court of appeals eventually denied Petitioners' appeal in a per curiam order signed by three judges, including Judge Orme. The court noted that the final judgment from which Petitioners appealed had been entered on May 18, 2000, while the notice of appeal was not filed until July 20, 2000, outside the thirty-day appeal period. The court stated, "When a timely notice of appeal is not filed, this court simply does not have jurisdiction to consider an appeal, whether or not an appellant has received notice that a final order has been entered. Utah R. Civ. P. 58 A(c) and (d)."
Utah Rule of Civil Procedure 58A reads, in pertinent part:
(c) When judgment entered; notation in register of actions and judgment docket. A judgment is complete and shall be deemed entered for all purposes . . . when the same is signed and filed as herein above provided.
* * *
(d) Notice of signing or entry of judgment. A copy of the signed judgment shall be promptly served by the party preparing it in the manner provided by Rule 5. The time for filing a notice of appeal is not affected by the requirement of this provision.
Utah R. Civ. P. 58A(c) (d).
Petitioners then petitioned the Utah Supreme Court for a writ of certiorari. Petitioners raised two issues there: (1) Whether they were "denied their due process rights to notice of entry of dismissal, a process which triggers time limits for submitting a notice of appeal; a denial in which has effectively prevented [them] from filing a timely notice of appeal as required by Utah appellate procedures"? And, (2) Whether Judge Orme's involvement in their case resulted in "bias and prejudice, which has caused [them] to not receive a fair and impartial appellate review"? On March 8, 2001, the supreme court denied that petition.
Petitioners filed in this Court their current petition under 28 U.S.C. § 2254. See 28 U.S.C.A. § 2254 (West 1994 Supp. 2003). The petition asserts the same two questions brought before the Utah Supreme Court, which appears to try to place this case in an awkward procedural posture, akin to asking this Court to act as another appellate layer in the state court system. However, "it is well established that the federal district courts are not appellate courts for state court decisions and they have no jurisdiction to exercise appellate jurisdiction over the state courts." Am. Benefit Life Ins. Co. v. United Founders Life Ins. Co., 515 F. Supp. 800, 803 (W.D. Okla. 1980); see Rooker v. Fid. Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 150 (1923).
This Court therefore instead construes the current petition as one brought under 28 U.S.C. § 2241, challenging the execution of Petitioners' sentences, see Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002), and posing the original question raised in state district court: Whether Petitioners "were denied due process of law and equal protection under the law in the parole release process which determines the actual period a convicted felon spends incarcerated in a correctional facility, and as such, petitioners were given disproportionately longer incarceration periods than those of other inmates similarly situated." Because Petitioners obviously did not exhaust these issues before the highest court in Utah as required before requesting federal habeas relief, the Court reads Petitioners' arguments regarding their lack of notice of their state court judgment and Judge Orme's participation in rejecting their appeal as explanations for their failure to exhaust.
ANALYSIS
In its response to this petition, the State argues that Petitioners' issue regarding the execution of their sentences is unexhausted and procedurally defaulted. The State further posits that Petitioners have not adequately shown cause and prejudice or a fundamental miscarriage of justice to excuse their failure to exhaust and procedural default. The Court agrees with the State.
"A habeas petitioner is `generally required to exhaust state remedies whether his action is brought under § 2241 or § 2254.'"Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002) (quotingMontez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000)). Further, this Court may not consider issues "defaulted in state court on independent and adequate state procedural grounds `unless [petitioner] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.'" Id. (quotingColeman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991)); see also Gonzales v. Jordan, No. 01-6415, 2002 U.S. App. LEXIS 10781, at *6 (10th Cir. June 5, 2002) (unpublished) ("[W]e conclude that the procedural bar applies to § 2241 petitions.").
Here, Petitioners were unable to exhaust their issue regarding the execution of their sentence because the Utah Court of Appeals ruled that they had defaulted their issue by untimely filing their notice of appeal. Under Utah law, the tardiness of Petitioners' notice of appeal deprived the Utah appellate court of jurisdiction over the appeal, effectively ending Petitioners' case in the state court system. Based on the Court's review of Utah cases, see Gonzales, 2002 U.S. App. LEXIS 10781, at *7-8, this determination by the Utah Court of Appeals — that it lacked jurisdiction because of the late-filed notice of appeal — is an "independent and adequate state procedural ground" for dismissal of Petitioners' case in that it is "`strictly or regularly followed' and employed `evenhandedly to all similar claims.'" See Hamm, 300 F.3d at 1216 (quoting Hickman v. Sears, 160 F.3d 1269, 1271 (10th Cir. 1998)) (quotation omitted in original); see, e.g., Reisbeck v. HCA Health Servs., 2 P.3d 447, 448 (Utah 2000) ("Failure to file a timely notice of appeal deprives this court of jurisdiction over the appeal.");State v. Parker, 936 P.2d 1118, 1119, 1122 (Utah Ct.App. 1997) (same); Nielson v. Gurley, 888 P.2d 130, 132 (Utah Ct.App. 1994) ("Of course, we cannot take jurisdiction over an untimely appeal.") (citing Nelson v. Stoker, 669 P.2d 390, 392 (Utah 1983)); State v. Price, 837 P.2d 578, 582 (Utah Ct.App. 1992) ("Utah's appellate courts have interpreted time limitations in [Utah Rule of Appellate Procedure 4(a)] as jurisdictional."), overruled on other grounds, State v. Ostler, 31 P.3d 528 (Utah 2001). Under the federal law outlined earlier, this Court must therefore dismiss Petitioners' case unless cause and prejudice or a fundamental miscarriage of justice redeems their default. See Gonzales, 2002 U.S. App. LEXIS 10781, at *11.
"The `cause and prejudice' standard applies to pro se prisoners just as it applies to prisoners represented by counsel. In order to satisfy the `cause' standard, Petitioner must show that `some objective factor external to the defense' impeded his compliance with Utah's procedural rules." Dulin v. Cook, 957 F.2d 758, 760 (10th Cir. 1992) (citations omitted);see also Gonzales, 2002 U.S. App. LEXIS 10781, at *11 ("`"Cause" must be something "external to the petitioner, something that cannot fairly be attributed to him."'") (citations omitted).
One of Petitioners' arguments that can be construed as "cause" for their failure to file their notice of appeal before the deadline is that they did not receive a copy of the written final judgment before the deadline. Petitioners' argument does not salvage their claim. The record shows that Petitioners were present when the state court announced its decision to deny their state court petition. Petitioners thus knew the result of their case, and they could have filed their notice of appeal that very day or up until May 18, 2000, with the notice taking effect on that date when judgment was actually entered. See Utah R. App. P. 4(c) ("[A] notice of appeal filed after the announcement of a decision, judgment, or order but before the entry of the judgment or order of the trial court shall be treated as filed after such entry and on the day thereof."). Under Utah law, then, Petitioners had all the notice they needed to properly and timely file their notice of appeal. That they waited until they received a written copy of the final judgment was their own choice — a factor internal to the pursuit of their case. It thus does not qualify as cause.
Petitioners' other argument possibly raising cause for their procedural default regards Judge Orme's potential bias. Again, however, this does not raise a reason external to Petitioner's pursuit of their case. After all, Judge Orme's involvement in the case came after Petitioners defaulted, and the judge is accused of nothing more than joining the rest of the court of appeals' panel in applying extremely well-settled law to dismiss Petitioners' appeal. Any further analysis of this issue would implicate this Court in the impermissible second guessing of a state court decision as though this Court were another tier of appellate review for that court. See Am. Benefit Life Ins. Co. v. United Founders Life Ins. Co., 515 F. Supp. 800, 803 (W.D. Okla. 1980).
Having determined Petitioners have not shown cause for their default, the Court need not address any possible prejudice to Petitioners. See Gonzales, 2002 U.S. App. LEXIS 10781, at *12. Further, Petitioners do not suggest that a fundamental miscarriage of justice exists — i.e., that they are actually innocent in some way; the Court thus does not consider that issue.
In sum, the Court concludes that Petitioners did not exhaust in the state court system their issue regarding the execution of their sentence. This is because Petitioners procedurally defaulted their state court case by filing their notice of appeal late, which deprived the state appellate court of jurisdiction. This procedural default resulted from the application of independent and adequate state grounds to dismiss the appeal. Finally, Petitioners have shown neither cause and prejudice nor a fundamental miscarriage of justice excusing their default.
CONCLUSION
Petitioners have procedurally defaulted their claim in state court. And, Petitioners have shown this Court neither cause and prejudice nor a fundamental miscarriage of justice to excuse their default. IT IS THEREFORE ORDERED that Petitioners' habeas corpus petition under § 2241 is denied. DATED this 23rd day of June, 2003.