Opinion
Case No. 2:03CV1079 DS
May 25, 2004
ORDER
This matter is before the court on motion by petitioner for post-conviction relief pursuant to 28 U.S.C. § 2254. Petitioner filed his motion pro se, along with a motion for appointment of counsel. The court thereafter ordered a response to the § 2254 petition from the Utah Attorney General. Subsequent to receiving a response from respondent, plaintiff Ray filed a "Clarification of Facts," something akin to a reply memorandum. The court has determined the matter is fully briefed and no evidentiary hearing is warranted. Accordingly, the court will proceed to rule on the pending motions.
I. Petition for Writ of Habeas Corpus
Plaintiff Ray's petition for writ of habeas corpus challenges his convictions in three cases: 991500363 (case 363), 991500364 (case 364), and 991500401 (case 401). The court has reviewed the record on all three cases and finds the procedural history contained in respondent's brief correctly summarizes the state court proceedings relating to plaintiff's cases and incorporates that history by reference herein. It is important to note, however, that plaintiff, in each, of the three cases, plead no contest to the charges and initialed and signed a plea statement. The trial court thereafter entered judgment, and plaintiff filed a timely appeal. Likewise, in all three cases, plaintiff filed an untimely motion to withdraw his plea which was denied by the trial court. (See citations to the record contained in respondent's brief at 2-6). The Utah Court of Appeals affirmed the trial court's rulings in an unpublished memorandum decision on December 5, 2002. State v. Ray, 2002 WL 31720983, 2002 UT App 408 (unpublished memorandum decision attached as addendum A to respondent's brief). The briefs filed by the parties are consistent on all material procedural issues excepting one: Plaintiff notes in his petition that he "requested an extension to file a "Writ of Certiorari in the Utah Supreme Court. Said extension was granted, but petitioner was unable to get the writ of certiorari filed in a timely manner because of the prison mailing system." Petition for Writ of Post-Conviction Relief at 3. The respondent indicated that no petition for writ of certiorari was ever filed and indicated further that no extension for filing a petition for writ of certiorari was filed. See Response at 16-17, 21.
In any event, the effect is the same. Plaintiff Ray failed to present any of his claims to the Utah Supreme Court. "A state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims." Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2554 (1991).
Despite the fact that plaintiff's claims could not now be presented to the Utah Supreme Court, and therefore he may meet a technical reading of the exhaustion requirements because there are no state remedies "available," Plaintiff's claims are nonetheless procedurally defaulted because they are procedurally barred under state law. Id., 735 n. 1. This court is convinced that any state petition for post-conviction relief at this time would be untimely, and there is no extraordinary circumstances that prevented him for presenting his claims in a timely manner. Hence, the court is not persuaded that the "interests of justice" exception would apply to any potential state filing. See, e.g., Currier v. Holden, 862 P.2d 1357, 1359 (Utah Ct.App. 1993).
Furthermore, except for his claims of ineffective assistance of appellate counsel, all of plaintiff s claims would be procedurally barred because they were already raised or could have been raised in his direct appeal to the Utah court of Appeals, See Utah Code Ann. § 78-35a-106(1)(b) (c). And finally, plaintiff has failed to establish that he is entitled to any exception to the procedural default rule. Plaintiff's claims were defaulted in state court on an independent and adequate procedural ground. He has not demonstrated cause for the default or prejudice or a fundamental miscarriage of justice. To the contrary, plaintiff simply failed to pursue available remedies, and his unsupported allegation about the prison mailing system affecting his ability to file a petition for certiorari is inadequate by any standard.
Accordingly, the court determines that plaintiff failed to exhaust his state remedies and his claims are procedurally defaulted. The court therefore dismisses the plaintiff's petition for post-conviction relief pursuant to 28 U.S.C. § 2254 with prejudice.
II. Motion for Appointment of Counsel
Having ruled that no evidentiary hearing is warranted, and furthermore finding that plaintiff's claims pursuant to 28 U.S.C. § 2254 are procedurally defective, the court finds the motion for appointment of counsel is now moot and denies the same.
SO ORDERED.