Warby v. Turley
Filing
20
MEMORANDUM DECISION & Order Denying Habeas Corpus Petition 3 .Signed by Judge Dee Benson on 7/30/12. (jlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________________________________________
FRANK WARBY,
) MEMORANDUM DECISION & ORDER
) DENYING HABEAS CORPUS PETITION
Petitioner,
)
) Case No. 2:10-CV-277 DB
v.
)
) District Judge Dee Benson
STEVEN TURLEY,
)
)
Respondent.
)
_________________________________________________________________
Petitioner, Frank Warby, an inmate at Utah State Prison,
petitions for habeas corpus relief.1
The Court denies him.
BACKGROUND
Petitioner was convicted in Utah state court on two counts
of first-degree-felony child sodomy, for which he was sentenced
to consecutive terms of fifteen-years-to-life; one count of
forcible sodomy, for which he was sentenced to a term of fiveyears-to-life; and one count of forcible sexual abuse, for which
he was sentenced to a term of one-to-fifteen years.
His conviction was upheld in a Utah Court of Appeals
memorandum decision.2
but one challenge:
There, as worded in his brief, he brought
"THIS COURT SHOULD REVERSE BECAUSE THE TRIAL
COURT ABUSED ITS DISCRETION BY INCORRECTLY CALCULATING THE NUMBER
OF VICTIMS ENCOMPASSED BY ITS CONSECUTIVE SENTENCES ORDER AND BY
INADEQUATELY CONSIDERING MR. WARBY'S HISTORY, CHARACTER, AND
1
See 28 U.S.C.S. § 2254 (2012).
2
State v. Warby, 2009 UT App 6U.
REHABILITATIVE NEEDS."
Petitioner then filed a certiorari
petition in the Utah Supreme Court.
The supreme court summarily
denied his petition.3
Here, Petitioner also raises the issue of the trial court's
error in imposing consecutive sentences as to the two fifteen-tolife terms, but, instead of casting it as a breach of state
statute as he did in the state courts, he asserts here that his
federal constitutional rights were violated by the consecutive
sentences.
The State responds to the petition, arguing that the issue
is procedurally defaulted.
It correctly supports its argument by
pointing out that Petitioner raised only state statutory bases
for his contentions before the state courts, not the federal
constitutional bases that are required for entree to federal
court.
And, now, the State rightly contends, Petitioner is
foreclosed from seeking any further relief on this issue 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.4
This means Petitioner must properly present to the
3
State v. Warby, 207 P.3d 432 (Utah 2009).
4
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).
2
highest available Utah court the federal constitutional issues on
which he seeks relief.5
Here, Petitioner did not present his
federal constitutional issues to any state court, let alone the
highest court available, the Utah Supreme Court.
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."6
The sentencing issue Petitioner raises here is 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 not raised at trial or on appeal."7
The ground
Petitioner presents--federal constitutional violations in his
sentencing--could have been brought on appeal and is therefore
disqualified for state post-conviction relief now.
The Court
5
See Picard, 404 U.S. at 275-76.
6
Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (quoting Coleman
v. Thompson, 501 U.S. 722, 735 n.1 (1991)).
7
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 . . . .").
3
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.'"8
Petitioner's
sentencing issue is "thus considered exhausted and procedurally
defaulted for purposes of habeas review."9
"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
miscarriage of justice.'"10
Construing the petition liberally as
it must, the Court infers that Petitioner possibly argues cause
and prejudice to justify his procedural default.
"[T]o satisfy the 'cause' standard, Petitioner must show
that 'some objective factor external to the defense' impeded his
compliance with Utah's procedural rules."11
Meanwhile, to
demonstrate prejudice, "'[t]he habeas petitioner must show not
merely that . . . errors . . . created a possibility of
8
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)).
9
Id. at *10.
10
Thomas, 218 F.3d at 1221 (alteration omitted) (citation omitted).
11
Dulin v. Cook, 957 F.2d 758, 760 (10th Cir. 1992) (citations omitted).
4
prejudice, but that they worked to his actual and substantial
disadvantage.'"12
Petitioner possibly asserts his lack of legal knowledge and
education are circumstances satisfying the cause-and-prejudice
standard.
However, Petitioner has not met his burden of showing
that objective factors external to the defense hindered him in
meeting state procedural demands.
Nor does he hint how he was
actually and substantially disadvantaged.
Under Tenth Circuit
case law, lack of legal resources and knowledge are circumstances
that do not carry Petitioner's burden to show cause.13
Indeed,
these are also factors internal to Petitioner's defense.
In sum, the Court determines Petitioner properly raised
before the Utah courts none of the federal constitutional issues,
regarding his consecutive sentences, brought here.
Because under
state law those questions no longer qualify to be raised in Utah
courts, the Court concludes that they are technically exhausted,
barred by state procedural law, and procedurally defaulted in
this federal habeas case.
Indeed, Petitioner has shown neither
12
Butler v Kansas, No. 02-3211, 2002 WL 31888316, at *3 (10th Cir. Dec.
30, 2002) (unpublished) (alteration in original) (quoting Murray v. Carrier,
477 U.S. 478, 494 (1986) (emphasis in original)).
13
Gilkey v. Kansas, No. 02-3227, 2003 WL 245639, at *2 (10th Cir. Feb.
4, 2003) (unpublished) (holding limited knowledge of the law is insufficient
to show cause for procedural default); Rodriguez v. Maynard, 948 F.2d 684, 688
(10th Cir. 1991) (concluding petitioner's pro se status and his corresponding
lack of awareness and training on legal issues do not constitute adequate
cause for his failure to previously raise claims).
5
cause and prejudice nor a fundamental miscarriage of justice to
excuse his default.
CONCLUSION
Petitioner's claim regarding his consecutive sentences is
procedurally barred.
IT IS THEREFORE ORDERED that this habeas
corpus petition under § 2254 is DENIED.
This case is CLOSED.
DATED this 30th day of July, 2012.
BY THE COURT:
__________________________
DEE BENSON
United States District Judge
6
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