Opinion
Case No. 20090640-CA.
Filed October 22, 2009. Not For Official Publication
Appeal from the Second District, Ogden Department, 070906836 The Honorable Michael D. Lyon.
Attorneys: Albert Dennis Zampedri, Gunnison, Appellant Pro Se.
Before Judges Thorne, Orme, and McHugh.
MEMORANDUM DECISION
Petitioner Albert Dennis Zampedri appeals the district court's dismissal of his third petition for post-conviction relief. This case is before the court on a sua sponte motion for summary affirmance. In 2004, we affirmed Zampedri's convictions of attempted aggravated murder and attempted murder. See State v. Zampedri, 2004 UT App 348U (mem.). Zampedri filed a petition for habeas corpus relief in the United States District Court for the District of Utah. The federal district court denied the petition, finding that the claims were procedurally defaulted because Zampedri failed to raise them before us on direct appeal.See Zampedri v. Utah, 219 Fed. App'x 803, 804 (10th Cir. 2007). Zampedri requested the Tenth Circuit Court of Appeals to issue a certificate of appealability to allow him to appeal the federal district court's ruling. See id. The Tenth Circuit refused, concluding that Zampedri had not exhausted his state remedies with respect to all claims presented to the federal court and had thus "procedurally defaulted" on those claims. See id. at 804-05.
The Utah district court dismissed Zampedri's first petition for post-conviction relief, but Zampedri did not appeal. The Utah district court summarily dismissed a second petition as frivolous on its face, and Zampedri appealed. The second petition requested that Zampedri be allowed to present "new evidence" to support his claims of "ineffective assistance of counsel, witness tampering, perjury, drug addicted officer handling evidence, failure to fully investigate, conspiracy of counsels, misleading jury by prosecutor," and evidence to support his federal actual innocence claim. Misconstruing the Tenth Circuit's ruling, Zampedri believed that he was entitled to present new evidence on procedurally defaulted claims in the Utah state courts in order to seek federal habeas corpus relief. We affirmed the dismissal of the second petition for post-conviction relief. See Zampedri v. Bigelow, 2008 UT App 178U (per curiam).
While the appeal from the dismissal of his second petition for post-conviction relief was pending, Zampedri filed a petition in the Utah Supreme Court under rule 65B of the Utah Rules of Civil Procedure. The Supreme Court construed the petition as a petition for post-conviction relief under rule 65C of the Utah Rules of Civil Procedure and transferred it to the Utah district court for disposition. The district court ruled that it had addressed Zampedri's second petition for post-conviction relief and dismissed it as frivolous on its face, and the Utah Court of Appeals affirmed that dismissal. The district court stated that because Zampedri "had his remedy of judicial review and appellate review," the court had "no intention of addressing further this case."
This appeal is taken from the June 29, 2009 order dismissing Zampedri's third petition for post-conviction relief. Zampedri claims that he was denied the opportunity to raise issues regarding ineffective assistance of his trial counsel. He also claims that his trial was tainted by perjury, witness tampering, and evidence tampering. Finally, he claims that a police officer whom he claims was addicted to drugs should not have been allowed to participate or testify in Zampedri's trial. However, all of Zampedri's claims were either raised, or could have been raised, on direct appeal or in his two previous petitions for post-conviction relief. Accordingly, we affirm the dismissal based upon Utah Code section 78B-9-106, which bars relief upon any ground that "was raised or addressed . . . on appeal," Utah Code Ann. § 78B-9-106(1)(b) (2008); "could have been but was not raised . . . on appeal, id. § 78B-9-106(1)(c); or "was raised or addressed in any previous request for post-conviction relief or could have been, but was not, raised in a previous request for post-conviction relief," id. § 78B-9-106(1)(d). See also Gardner v. Galetka, 2004 UT 42, ¶ 19, 94 P.3d 263 (holding that ineffective assistance of counsel claim brought for the first time in a second post-conviction petition was "procedurally barred by the plain language of [section 106] of the Post-Conviction Remedies Act, since it could have been, but was not, raised in his original post-conviction proceeding"); Hutchings v. State, 2003 UT 52, ¶ 21, 84 P.3d 1150 (holding that the trial court correctly dismissed the petitioner's second petition for post-conviction relief as successive because claims that "were, or could have been, raised in the prior proceedings . . . were precluded by section 106 of the Post Conviction Remedies Act").
The district court's dismissal of Zampedri's third petition was based upon that court's determination that the issues had been raised, or could have been raised, in previous post-conviction petitions. Zampedri's mistaken belief that he is entitled by virtue of the federal court's rulings to present new evidence in the Utah courts was addressed and rejected in this court's earlier decision affirming the denial of the post-conviction petition. See Zampedri v. Bigelow, 2008 UT App 178U (per curiam). Accordingly, we affirm the district court's decision and deny Zampedri's motion for summary reversal.
William A. Thorne Jr., Judge, Gregory K. Orme, Judge, Carolyn B. McHugh, Judge