Hernandez v. Bigelow et al

Filing 20

MEMORANDUM DECISION & ORDER DENYING HABEAS CORPUS PETITION. Case Closed. Signed by Judge Dale A. Kimball on 8/23/12. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________________________________________
) MEMORANDUM DECISION & ORDER
) DENYING HABEAS CORPUS PETITION
Petitioner,
)
) Case No. 2:09-CV-815 DAK
v.
)
) District Judge Dale A. Kimball
ALFRED BIGELOW et al.,
)
)
Respondents.
)
_________________________________________________________________
SERGIO ESCAMILLA HERNANDEZ,

Petitioner, Sergio Escamilla Hernandez, an inmate at Central
Utah Correctional Facility, petitions for habeas corpus relief.1
The Court denies him.
BACKGROUND
Petitioner was convicted in Utah state court on two counts
of aggravated sexual abuse of a child, for which he was sentenced
to consecutive terms of five-years-to-life.

His conviction was

upheld in a Utah Court of Appeals opinion.2

In that forum, he

raised the following issue:

"Were [Petitioner's] double jeopardy

protections violated when he was twice convicted and punished for
violating a single statutory provision during a brief moment in
time, based upon a single general intent, impulse and plan?"3
Although this question had not been presented at trial,
Petitioner argued the court of appeals should take it up either

1

See 28 U.S.C.S. § 2254 (2012).

2

State v. Escamilla-Hernandez, 2008 UT App 419.

3

Brief of Appellant to Utah Court of Appeals at 1, docket no. 13-2.

under the plain-error doctrine or as an ineffective-assistanceof-counsel claim.4

The court of appeals rejected Petitioner's

invitation to review the issue as plain error because, as it
pointed out, the error was invited.5

However, it did analyze the

ineffective-assistance-of-counsel angle, before rejecting it.6
Petitioner then filed a certiorari petition in the Utah
Supreme Court.

There, Petitioner changed the issue to, "Did the

Court of Appeals err in applying the same-evidence test, rather
than unit-of-prosecution analysis, to determine whether multiple
punishments under the 'touching prong' of Utah Code Ann. § 76-4404.1 (2007) for contact occurring during a single transaction or
episode violate double jeopardy protections?"7

The State argued

that this issue was not preserved for review because Petitioner
had not raised it before the court of appeals.8

The supreme

court summarily denied his petition.9
In his petition here, Petitioner argues that the plain
language of the aggravated-sexual-abuse-of-a-child statute does
not support his conviction on two counts during a single episode,

4

Id.

5

Escamilla-Hernandez, 2008 UT App 419, at ¶ 8 n.2.

6

Id. at ¶ 15.

7

Appellant's Petition for Writ of Certiorari to Utah Supreme Court at 1,
docket no. 13-4.
8

State's Brief in Oppostition to Defendant's Petitioner for Writ of
Certiorari at 8-10, docket no. 13-5.
9

State v. Escamilla-Hernandez, 207 P.3d 432 (Utah 2009).

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nor did the court of appeals properly analyze the case using a
"unit-of-prosecution" test, as it should have.

Finally,

Petitioner asserts the court of appeals should have ruled that
trial counsel was ineffective in failing to move for dismissal of
one count.
The State responds to the petition, arguing that the issues
are unexhausted.

It correctly supports its argument by pointing

out that Petitioner raised only the issue of "unit-ofprosecution" versus "same-evidence" tests (for double-jeopardy
protection) before the Utah Supreme Court, which he did not
explicitly raise before the court of appeals.

Petitioner is now

foreclosed from seeking any further relief on these doublejeopardy issues in state court, culminating in procedural
default.
ANALYSIS
In general, before Petitioner may seek review of a Utah
conviction in federal court, he must exhaust all remedies in the
Utah courts.10

This means Petitioner must properly present to

the highest available Utah court the federal constitutional
issues on which he seeks relief.11

Here, Petitioner did not

present the same issue to the Utah Court of Appeals as he

10

See 28 U.S.C.S. § 2254(b) & (c) (2012); Picard v. Connor, 404 U.S.
270, 275-76 (1971); Knapp v. Henderson, No. 97-1188, 1998 WL 778774, at *2
(10th Cir. Nov. 9, 1998) (unpublished).
11

See Picard, 404 U.S. at 275-76.

3

presented to the Utah Supreme Court.

Indeed, the term "unit of

prosecution" never appears in Petitioner's brief to the Utah
Court of Appeals (where he presents instead the novel argument
that double-jeopardy principles from larceny cases should be
extrapolated to sex-offense cases),12 as it does in his
certiorari petition to the Utah Supreme Court.13

And, the

supreme court summarily refused to entertain his petition.14
Thus, none of Petitioner's arguments in the state courts were
exhausted.
The United States Supreme Court has said that when a
petitioner has not exhausted "'his state remedies and the court
to which the petitioner would be required to present his claims
in order to meet the exhaustion requirement would now find the
claims procedurally barred' the claims are considered exhausted
and procedurally defaulted for purposes of federal habeas
relief."15
The issues Petitioner raises here are now ineligible to be
exhausted in the Utah courts.

Utah's Post-Conviction Remedies

Act (PCRA) states, "A person is not eligible for relief under
this chapter upon any ground that . . . could have been but was
12

Brief of Appellant to Utah Court of Appeals at 7-11, docket no. 13-2.

13

Appellant's Petition for Writ of Certiorari to Utah Supreme Court at
4-18, docket no. 13-4.
14

State v. Escamilla-Hernandez, 207 P.3d 432 (Utah 2009).

15

Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (quoting
Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).

4

not raised at trial or on appeal."16

The grounds Petitioner

presents here could have been brought, using consistent theories,
on appeal and are therefore disqualified for state postconviction relief now.

The Court therefore applies the doctrine

of "anticipatory procedural bar," which "'occurs when the federal
courts apply [a] procedural bar to . . . [a] claim [not fairly
presented to the state court] that would be procedurally barred
under state law if the petitioner returned to state court to
exhaust it.'"17

Further, Petitioner's claims would be time-

barred in state court.18

Petitioner's issues are "thus

considered exhausted and procedurally defaulted for purposes of
habeas review."19
"This court may not consider issues raised in a habeas
petition 'that have been defaulted in state court on an
independent and adequate procedural ground[] unless the
petitioner can demonstrate cause and prejudice or a fundamental

16

Utah Code Ann. § 78B-9-106(1) (2012); cf. Hale v. Gibson, 227 F.3d
1298, 1328 (10th Cir. 2000) ("Oklahoma bars collateral review of claims . . .
that could have been raised on direct appeal but were not. Accordingly,
[petitioner] has defaulted his claim . . . .").
17

Robinson v. Davis, No. 11-1525, 2012 U.S. App. LEXIS 3020, at *9 (10th
Cir. Feb. 16, 2012) (unpublished) (alterations in original) (quoting Anderson
v. Sirmons, 476 F.3d 1131, 1140 n.7 (10th Cir. 2007) (quotations omitted)).
18

Utah Code Ann. § 78B-9-107 (2012) (statute of limitations for postconviction relief).
19

Robinson, 2012 U.S. App. LEXIS 3020, at *10.

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miscarriage of justice.'"20

However, Petitioner has not argued

these bases justify his procedural default.
CONCLUSION
Petitioner's double-jeopardy claims are unjustifiably
procedurally barred.

IT IS THEREFORE ORDERED that this habeas

corpus petition under § 2254 is DENIED.

This case is CLOSED.

DATED this 23rd day of August, 2012.
BY THE COURT:

__________________________
DALE A. KIMBALL
United States District Judge

20

Thomas, 218 F.3d at 1221 (alteration omitted) (citation omitted).

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