Snyder v. State of Utah et al

Filing 44

MEMORANDUM DECISION & ORDER DENYING HABEAS RELIEF: It is therefore ordered that this habeas corpus petition under 2254 is DENIED. it is further ordered that a certificate of appealability is DENIED. This action is closed. Signed by Judge Robert J. Shelby on 09/12/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
BARRY SNYDER,
Petitioner,

MEMORANDUM DECISION & ORDER
DENYING HABEAS RELIEF

v.
SCOTT CROWTHER,
Respondent.

Case No. 2:15-CV-627-RJS
District Judge Robert J. Shelby

Petitioner, Barry Snyder, filed a pro se habeas corpus petition. See 28 U.S.C.S. § 2254
(2018). Having thoroughly reviewed the contents of the petition, the State’s answer and
Petitioner’s response to the answer, the Court denies the petition.
BACKGROUND
For viewing child-pornography images over the internet, Petitioner was charged with ten
counts of sexual exploitation of a minor. Petitioner agreed to plead guilty to one count; in
exchange, the State dropped the other nine counts. The trial court engaged Petitioner in a
thorough Rule 11 colloquy before accepting his guilty plea. Petitioner appealed, but then
withdrew his appeal.

A. State Post-Conviction Petition
He went on to seek post-conviction relief in state court, contending as follows:
1. Images he pleaded guilty to viewing were protected speech under the First Amendment.
2. Ineffective assistance of trial counsel.
a. Pre-Plea.
i. Counsel spent little time conferring with Petitioner.
ii. Counsel incorrectly told Petitioner that there were four or five pornographic
images found on his computer when it was alleged that there were only three.
b. Post-Plea.
i. Counsel did not change the plea, specifically once Petitioner brought him case
law that would provide him a defense and when recognizing there were fewer
images than counsel had originally thought.
ii. Counsel did not ensure Petitioner’s presentence investigation report was
correct.
3. The guilty plea was involuntary and induced by threat of additional charges.
4. The search was illegal because it was done before the search warrant was issued.
Petitioner recognized these possible grounds to withdraw his guilty plea and wrote the
trial court letters about them, between the time he entered his plea and the time when he was
sentenced. Further, when Petitioner responded to the State’s summary-judgment motion, he
conceded that the pre-plea constitutional issues he raised were not separate grounds for
withdrawing his plea, but were “examples of the ineffective assistance of counsel.” Snyder v.
State, No. 120100137, slip. op at 2 (Utah Dist. Ct. Mar. 28, 2014) (quotation marks and citation

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omitted). The trial court thus analyzed all the issues under the umbrella of ineffective assistance
of counsel.
So, the first issue challenging the viewed images as protected under the First Amendment
must instead be framed in terms of ineffective assistance: Thus, counsel was ineffective in not
challenging the viewed images as protected under the First Amendment. And the third issue:
Counsel was ineffective because he threatened Petitioner with more charges to induce a guilty
plea. And the fourth issue: Counsel was ineffective because he failed to challenge the legality of
the search of Petitioner’s computer that revealed the pornographic images.
The trial court ruled that all but the two pre-plea instances of ineffective assistance raised
were procedurally barred. This is because they all could have been raised on the direct appeal
that was withdrawn. Id. at 4-5 (“Pursuant to Utah Code Ann. § 78B-9-106(1)(b), the [PostConviction Remedies Act] is identified as ‘the sole remedy for any person who challenges a
conviction or sentence for a criminal offense and who has exhausted all other legal remedies,
including a direct appeal.’ Also under the PRCA, ‘a person is not eligible for relief under this
chapter upon any ground that . . . was raised or addressed at trial or appeal.’ Utah Code Ann. §
78B-9-106(1)(b). The statute also identifies another procedural bar that arises when a petitioner
raises a claim that ‘could have been but was not raised a trial or appeal.’ Utah Code Ann. § 78B9-106(1)(C).”).
In denying Petitioner post-conviction relief, the trial court also analyzed the two pre-plea
instance of ineffective assistance of counsel on the merits using the standard Strickland analysis.
Id. at 3-6 (citing Strickland v. Washington, 466 U.S. 668 (1984)).

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B. Appeal of State Trial Court’s Denial of Post-Conviction Relief
Petitioner appealed the denial to the Utah Court of Appeals, raising these grounds:
1. The trial court erred in concluding that Petitioner was barred from raising ineffectiveassistance-of counsel claims under PCRA.
2. The trial court erred in ruling against Petitioner on summary judgment because there were
genuine issues of material fact in dispute regarding ineffective assistance of counsel.
3. The trial court improperly denied him representation by pro bono counsel.
In affirming the trial court’s denial of post-conviction relief, the court of appeals first
noted that “[t]o the extent that the claims raised would be substantive challenges to his
conviction, the claims were waived by his guilty plea.” Snyder v. State, 2015 UT App 37, ¶ 4.
The court further affirmed the trial court in its dismissal of claims based on the procedural bar
found in the PCRA. Id. ¶ 6. The court noted that Petitioner tried on appeal to overcome the
procedural bar by asserting ineffective assistance of appellate counsel, but that, “because this
claim is argued for the first time on appeal in his postconviction case, it is not properly before
this court.” Id. ¶ 6 n.1 (citation omitted). Also in affirming the trial court, the court of appeals
analyzed the two pre-plea ineffective-assistance-of-counsel claims under the Strickland analysis.
Id. ¶ 8. The court finally upheld the trial court in denying Petitioner appointed counsel in his
state post-conviction proceedings. Id. ¶ 10 n.2 (“Snyder is not entitled to counsel in this
postconviction proceeding.” (Citation omitted.)).

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C. Petition for Writ of Certiorari Regarding Utah Court of Appeals’
Affirmance of State Trial Court Denial of Post-Conviction Relief
Petitioner then petitioned the Utah Supreme Court for a writ of certiorari, raising these
grounds:
1. Genuine issues of material fact regarding ineffective assistance of counsel should have
precluded summary judgment.
2. The ineffective-assistance-of-appellate-counsel claim was properly before the Utah Court of
Appeals.
3. Petitioner was improperly denied pro bono counsel.
4. The plea was unknowing and involuntary.
The Utah Supreme Court denied certiorari review. Snyder v. State, No. 20150378-SC
(Utah July 1, 2015).
D. Issues Raised in this Federal Habeas Petition
Petitioner now challenges his conviction in this federal habeas petition, raising these
grounds:
1. Ineffective assistance of trial counsel.
a. Counsel gave fraudulent and misleading advice regarding the evidence, which renders
Petitioner’s plea involuntary. The fraudulent and misleading advice of counsel was
allegedly that, if Petitioner did not accept the plea, Petitioner would be facing 195 years
of consecutive years as a sentence. (Arguably addressed on the merits by the Utah Court
of Appeals; also could have been raised on direct appeal but was not.)
b. Counsel did not subject the evidence to an adversarial challenge in an evidentiary
hearing, which would have come out in Petitioner’s favor because the “[e]vidence

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amounted to (3) images of plain nudity without more.” (Arguably addressed on the merits
by the court of appeals; also could have been raised on direct appeal but was not.)
c. Counsel did not show Petitioner the evidence against him--i.e., the images Petitioner
was accused of viewing in violation of the criminal code. (Arguably addressed on the
merits by the court of appeals; also could have been raised on direct appeal but was not.)
d. Counsel refused to file a motion to retract the plea and threatened to withdraw his
representation if Petitioner tried to retract the plea himself. (Could have been raised on
appeal but was not.)
e. Counsel did not adequately investigate the charges and evidence against Petitioner.
(Arguably addressed on the merits by the court of appeals; could have been raised on
direct appeal but was not.)
f. Counsel did not file a motion to suppress based on the illegal search of Petitioner’s
computer. (Waived by entry of the guilty plea; could have been raised on appeal but was
not.)
2. Ineffective assistance of appellate counsel. (Could have been raised in post-conviction
proceeding before the state trial court but was not.)
a. Counsel did not investigate Petitioner’s claims of ineffective assistance of trial counsel.
b. Counsel improperly advised Petitioner to withdraw his appeal and bring all his claims
in a post-conviction petition.
3. The images Petitioner was charged with viewing are protected free speech under the Federal
Constitution. (Waived by entry of the guilty plea; could have been raised on appeal but was not.)

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4. Petitioner was wrongfully denied appointed counsel to help him with his state post-conviction
case.
ANALYSIS
In its response to the petition, the State argues that most of Petitioner's issues are
procedurally defaulted, and the issues that were not procedurally defaulted and were denied on
the merits are not reversible based on the federal habeas standard of review. The Court agrees.
The Utah Court of Appeals denied only three issues on the merits: (1) Petitioner’s
assertion that trial counsel was ineffective because he spent little time with Petitioner; (2)
Petitioner’s assertion that trial counsel was ineffective because he incorrectly told Petitioner that
there were four or five pornographic images on his computer when it was alleged that there were
only three; and, (3) Petitioner was wrongfully denied appointed counsel in his state-postconviction proceedings. Everything else was procedurally defaulted. The Court begins here with
the procedural default analysis.
A. Procedural Default
"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.'" Thomas v. Gibson,
218 F.3d 1213, 1221 (10th Cir. 2000) (alteration omitted) (citation omitted).
There are three categories of procedurally defaulted issues here: (1) Issues that were
extinguished by Petitioner’s guilty plea. (2) Issues Petitioner could have raised on direct appeal
but did not. (3) Issue Petitioner could have raised in the trial-court post-conviction proceeding
but did not raise until his appeal.

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1. Issues extinguished by guilty plea. The Utah Court of Appeals referred to claims that
“would be substantive challenges to [Petitioner’s] conviction” and noted that such “claims were
waived by [Petitioner’s] guilty plea.” Snyder, 2015 UT App 37, at ¶ 4. The Court assumes that
these are the issues raised in the state trial court and here as (a) the assertion that the images
viewed are protected speech under the Federal Constitution; and (b) the assertion that the search
of Petitioner’s computer was illegal because it was performed before the search warrant was
issued. The state trial court had appeared to have subsumed these under the issue of ineffective
assistance of counsel, but perhaps the court of appeals treated them outside of the issue of
ineffective assistance.
Either way, Petitioner does not prevail here. First, “[w]hen, as here, ‘a criminal defendant
has solemnly admitted in open court that he is in fact guilty of the offense with which he is
charged, he may not thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea.’” Leslie v. Abbott, 117 F.
App’x 72, 76 (10th Cir. 2004) (unpublished) (quoting United States v. Salazar, 323 F.3d 852,
856 (10th Cir. 2003)). This is an independent and adequate procedural ground for procedural
default. See Snyder, 2015 UT App 37, at ¶ 4 (quoting State v. Rinehart, 2007 UT 61, ¶ 15, 167
P.3d 1046. And, second, if these two assertions about protected speech and illegal search were
treated under the ineffective-assistance umbrella, they are part of the group of claims that were
determined to be defaulted because they were not raised on direct appeal, which is discussed
next.
2. Issues that Petitioner could have raised on appeal, but did not. Utah's PostConviction Remedies Act, in pertinent part, states: “A person is not eligible for relief under this

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chapter upon any ground that … could have been but was not raised at trial or on appeal.” Utah
Code Ann. § 78B-9-106(1) (2018); 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 . . . ."). Under Utah law, then,
Petitioner may not raise his current arguments in future state habeas petitions, and the state
courts would determine them to be procedurally barred. The United States Supreme Court has
declared that when a petitioner has "'failed to exhaust 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." Thomas v. Gibson, 218 F.3d
1213, 1221 (10th Cir. 2000) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)). Any
claims then that Petitioner could have raised on direct appeal but did not are procedurally
defaulted in state and federal court.
3. Issue that Petitioner could have raised in post-conviction petition before state trial
court but did not raise until state appeal. This issue is the ineffective assistance of appellate
counsel, which was determined by the Utah Court of Appeals to be procedurally defaulted.
Snyder, 2015 UT App 37, ¶ 6 n.1 (“In an effort to overcome the procedural bar, Snyder asserts
on this appeal that he received ineffective assistance of appellate counsel in his direct appeal.
However, because this claim is argued for the first time on appeal in his postconviction case, it is
not properly before this court.”) (Citation omitted)). Petitioner could have raised his claim of
ineffective assistance of appellate counsel in his state post-conviction petition to the trial court;
because he did not, it is procedurally defaulted in state and federal court.

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4. Exceptions to procedural default. Petitioner possibly asserts both cause and
prejudice and a fundamental miscarriage of justice as exceptions that the Court should apply to
rescue him from the effects of his procedural defaults. Specifically, he seems to assert cause and
prejudice (in that he was hampered by lack of legal knowledge and resources) and actual
innocence.
a. Cause and prejudice. "[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.” Dulin v. Cook, 957 F.2d 758, 760 (10th Cir. 1992) (citations omitted).
Meanwhile, to demonstrate prejudice, "'[t]he habeas petitioner must show not merely that . . .
errors . . . created a possibility of prejudice, but that they worked to his actual and substantial
disadvantage.'” 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)).
Petitioner has not met his burden of showing that objective factors external to the defense
hindered him in meeting state procedural demands. Under Tenth Circuit case law, lack of legal
resources and knowledge (including Petitioner’s own misunderstanding) are circumstances that
do not carry Petitioner's burden to show cause. Gilkey v. Kansas, No. 02-3227, 2003 U.S. App.
LEXIS, at *6 (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). “Indeed, these are factors . . . that are internal to Petitioner’s defense.” Ardon-Aguirre v.

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Sorensen, No. 2:12-CV-914 DB, 2013 U.S. Dist. LEXIS 150269, at *11 (D. Utah October 18,
2013) (emphasis in original).
b. Actual Innocence. Petitioner also appears to suggest that a miscarriage of
justice will occur if this Court does not address the defaulted claims in his petition. To be
plausible, an actual-innocence claim must be grounded on solid evidence not adduced at trial.
Calderon v. Thompson, 523 U.S. 538, 559 (1998). Because such evidence is so rare, "'in virtually
every case, the allegation of actual innocence has been summarily rejected.'” Id. (quoting Schlup
v. Delo, 513 U.S. 298, 324 (1995) (citation omitted)). Petitioner is burdened with making "a
proper showing of factual innocence.” Byrns v. Utah, No. 98-4085, 1998 WL 874865, at *3
(10th Cir. Dec. 16, 1998) (unpublished) (citing Herrera v. Collins, 506 U.S. 390, 404 (1992)).
Petitioner's mere rehashing of the evidence and alleged violations of his civil rights in
state proceedings do nothing to convince this Court that the exception applies. Indeed, the kernel
of the Court's analysis regarding actual innocence is not whether Petitioner urgently believes
there were errors--or whether there were indeed errors--in the state proceedings, but whether
Petitioner is factually innocent. This factual innocence must also be supported with new
evidence, which Petitioner has not provided.
In sum, the Court concludes that Petitioner's issues are procedurally defaulted. And,
these issues do not qualify for consideration under the cause-and-prejudice or miscarriage-ofjustice exceptions to the procedural bar. The Court thus denies Petitioner federal habeas relief on
his procedurally defaulted claims.

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B. Merits--Ineffective Assistance of Counsel
1. Standard of Review. The standard of review to be applied in federal habeas cases is
found in § 2254, of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), under
which this habeas petition is filed. It states:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim-(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C.S. § 2254(d) (2018). Subsection (d)(1) governs claims of legal error
while subsection (d)(2) governs claims of factual error.” House v Hatch, 527 F.3d
1010, 1015 (10th Cir. 2008).
The Court's inquiry centers on whether the Utah Court of Appeals’s rejection of
Petitioner's claims "was contrary to, or involved an unreasonable application of, clearly
established Federal law. 28 U.S.C.S. § 2254(d)(1) (2018). This "'highly deferential standard,'"
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (citations omitted); see also Littlejohn v.
Trammell, 704 F.3d 817, 824 (10th Cir. 2013), is "'difficult to meet,' because the purpose of
AEDPA is to ensure that federal habeas relief functions as a '"guard against extreme
malfunctions in the state criminal justice systems,"' and not as a means of error correction.”
Greene v. Fisher, 132 S. Ct. 38, 43-44 (2011) (quoting Harrington v. Richter, 131 S. Ct. 770,
786 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in

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judgment))). The Court is not to determine whether the court of appeals’s decision was correct or
whether this Court may have reached a different outcome. See Lockyer v. Andrade, 538 U.S. 63,
75-76 (2003). "The role of federal habeas proceedings, while important in assuring that
constitutional rights are observed, is secondary and limited.” Barefoot v. Estelle, 463 U.S. 880,
887 (1983). And, "[t]he petitioner carries the burden of proof.” Cullen, 131 S. Ct. at 1398.
Under Carey v. Musladin, 549 U.S. 70 (2006), the first step is determining whether
clearly established federal law exists relevant to Petitioner's claims. House, 527 F.3d at 1017-18;
see also Littlejohn, 704 F.3d at 825. Only after answering yes to that "threshold question" may
the Court go on to "ask whether the state court decision is either contrary to or an unreasonable
application of such law.” Id. at 1018.
[C]learly established [federal] law consists of Supreme Court
holdings in cases where the facts are at least closely-related or
similar to the case sub judice. Although the legal rule at issue need
not have had its genesis in the closely-related or similar factual
context, the Supreme Court must have expressly extended the legal
rule to that context.
Id. at 1016.
Further, "in ascertaining the contours of clearly established law, we must look to the
'holdings as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the
relevant state-court decision.” Littlejohn, 704 F.3d at 825 (quoting Yarborough v. Alvarado, 541
U.S. 652, 660-61 (2004) (emphasis added) (citations omitted)). And, in deciding whether
relevant clearly established federal law exists, this Court is not restricted by the state court's
analysis. See Bell v. Cone, 543 U.S. 447, 455 (2005) ("[F]ederal courts are not free to presume
that a state court did not comply with constitutional dictates on the basis of nothing more than a
lack of citation."); Mitchell v. Esparza, 540 U.S. 12, 16 (2003) ("[A] state court need not even be

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aware of our precedents, 'so long as neither the reasoning nor the result of the state-court
decision contradicts them.'") (citation omitted).
If this threshold is overcome, this Court may grant habeas relief only when the state
court has "unreasonably applied the governing legal principle to the facts of the petitioner's
case.” Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir. 2000) (citing Williams v. Taylor, 529
U.S. 362, 412-13 (2000)). This deferential standard does not let a federal habeas court issue a
writ merely because it determines on its own that the state-court decision erroneously applied
clearly established federal law. See id. "'Rather that application must also be unreasonable.'” Id.
(quoting Williams, 529 U.S. at 411). Indeed, "'an unreasonable application of federal law is
different from an incorrect application of federal law.'” Harrington, 131 S. Ct. at 785 (emphasis
in original) (quoting Williams, 529 U.S. at 410).
This highly demanding standard was meant to pose a sizable obstacle to the habeas
petitioner. Id. at 786. Section 2254(d) "stops short of imposing a complete bar on federal court
relitigation of claims already rejected in state proceedings.” Id. It maintains power to issue the
writ when no possibility exists that "fairminded jurists could disagree that the state court's
decision conflicts with th[e Supreme] Court's precedents. It goes no farther.” Id. To prevail in
federal court, "a state prisoner must show that the state court's ruling on the claim being
presented in federal court was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at
786-87. It is against this backdrop that this Court now applies the standard of review to the
circumstances of this case.

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2. Application of Standard of Review. The exhausted claims here are two ineffective
assistance of counsel issues stemming from counsel's (a) failure to spend much time conferring
with Petitioner before his guilty plea; and (b) incorrect assertion to Petitioner that there were four
or five pornographic images on his computer when it was alleged that there were only three.
Remembering that review is tightly restricted by the federal habeas standard of review,
this Court observes that the Utah Court of Appeals selected the correct governing legal principle
with which to analyze the ineffective-assistance-of-counsel issue. Snyder, 2015 UT App 37, ¶¶
5-8. It is the familiar two-pronged standard of Strickland v. Washington, 466 U.S. 668 (1984):
(1) deficient performance by counsel, measured by a standard of "reasonableness under
prevailing professional norms"; and, (2) prejudice to the defense caused by counsel's deficient
performance. Id. at 687-88. The prejudice element requires a showing that errors were so grave
as to rob the petitioner of a fair proceeding, with a reliable, just result. Id.
As required by the standard of review, the Court now analyzes whether the Utah Court of
Appeals’s application of Strickland was reasonable. In evaluating this issue under Strickland, the
court stated:
To establish ineffective assistance of counsel, a defendant must
show both that counsel’s performance was deficient and that the
deficient performance prejudiced the defendant. Menzies, 2014 UT
40, ¶ 75 (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). In evaluating counsel’s performance, the focus is on
“whether counsel’s assistance was reasonable considering all the
circumstances.” Id. ¶ 76 [quoting Strickland, 466 U.S. at 687.] The
strong presumption that counsel’s conduct was not deficient may
be overcome only by demonstrating “that the challenged actions
cannot be considered sound strategy under the circumstances.” Id.
[quoting Strickland, 466 U.S. at 689.]
....
Snyder also contends that counsel failed to investigate the
evidence before advising him to plead guilty and did not spend

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enough time on the case. Appellate courts generally decline “to
hold that counsel is ineffective based on the amount of time
counsel spent working on the case or consulting a client.” Nicholls
v. State, 2009 UT 12, ¶ 38, 203 P.3d 976. Additionally, Snyder
does not set out specific facts to establish this claim but rather
makes conclusory allegations, stating merely his belief that counsel
did not evaluate the evidence. In contrast to his belief, the record
shows that counsel told Snyder that the images were ‘very bad’
and clearly violated the law. Accordingly, pursuing a plea bargain
that resulted in the dismissal of nine of ten charges appears to be
sound strategy under the circumstances.
Under the standard of review, Petitioner does not even argue that the court of appeals got
this wrong. He merely restates his belief that his attorney's alleged failures equaled--per se--a
deficient performance. He does not effectively address the matter of possible strategy, nor does
he address how his retrospective, subjective perspective of his counsel's performance does not
square with the court of appeals’s more objective perspective, as supported by the record. After
all, Petitioner specifically responded without reservation in his plea colloquy that he had not
been coerced and that he was satisfied with his attorney's performance.
Most importantly, Petitioner does not suggest any United States Supreme Court on-point
case law exists that is at odds with the court of appeals’s result. And, this Court's review of
Supreme-Court case law reveals none. See, e.g., Bell v. Cone, 535 U.S. 685, 698, 702 (2002)
(stating "defendant must overcome the 'presumption that, under the circumstances, the
challenged action "might be considered sound trial strategy"'" and "court must indulge a 'strong
presumption' that counsel's conduct falls within the wide range of reasonable professional
assistance because it is all too easy to conclude that a particular act or omission of counsel was
unreasonable in the harsh light of hindsight") (citations omitted).

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Based on Strickland, the Utah Court of Appeals was right to analyze how counsel's
performance may have been deficient, and, on the basis that it was not, reject Petitioner's
ineffective-assistance-of-counsel claims. This Court is therefore not at all persuaded that the
court of appeals’s application of relevant Supreme-Court precedent was unreasonable.
C. Merits--Denial of Appointed Counsel in State Post-Conviction Proceedings
Petitioner argued throughout his state post-conviction proceedings that he should be
appointed counsel in those proceedings. Here, he attacks the state courts’ failure to appoint
counsel. However, "'[r]here is no constitutional right to an attorney in . . . post-conviction
proceedings.’” Thomas v. Gibson, 218 F.3d 1213, 1222 (10th Cir. 2000) (quoting Coleman v.
Thompson, 501 U.S. 722, 752 (1991) (citations omitted)). Thus, there is no constitutional
violation here and no basis for relief.
CONCLUSION
Petitioner's challenges to the circumstances of his guilty plea and his claims of ineffective
assistance of counsel raise no valid grounds for federal habeas relief.
IT IS THEREFORE ORDERED that this habeas corpus petition under § 2254 is
DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
This action is CLOSED.
DATED this 12th day of September, 2018.
BY THE COURT:

ROBERT J. SHELBY
United States District Judge

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