Flores v. State of Utah

Filing 28

MEMORANDUM DECISION AND ORDER granting 15 Motion to Dismiss this habeas corpus petition. Signed by Judge Jill N. Parrish on 1/10/2018. (jds)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
GERBER A. FLORES,
ORDER GRANTING MOTION TO
DISMISS & MEMORANDUM
DECISION

Petitioner,
v.
STATE OF UTAH,

Case No. 2:15-CV-658-JNP
Respondent.

District Judge Jill N. Parrish

Petitioner, Gerber A. Flores, has filed a pro se habeas corpus petition. See 28 U.S.C.
§ 2254. For the reasons below, the court grants Respondent’s motion to dismiss his petition.
I.

BACKGROUND

Petitioner was convicted in Utah state court. Upon appeal, the Utah Court of Appeals
affirmed the conviction. Petitioner did not file a certiorari petition in the Utah Supreme Court.
Neither did Petitioner file a state habeas corpus petition. He now challenges his conviction in
this federal habeas petition.
II.

ANALYSIS

In its response to the petition, the State argues that Petitioner's issues are unexhausted and
procedurally defaulted. The court agrees.
In general, before Petitioner may seek review of a Utah conviction in federal court, he
must exhaust all remedies in Utah courts. See 28 U.S.C. § 2254(b) & (c); 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). To exhaust his remedies, Petitioner must properly present to the highest available
Utah court the federal constitutional issues on which he seeks relief. See Picard, 404 U.S. at 276;
Knapp, 1998 WL 778774, at *2–3. Here, because he filed neither a petition for writ of certiorari

nor a state habeas corpus petition, Petitioner did not present any issue to the highest Utah court
available, the Utah Supreme Court. His claims before this court are therefore unexhausted.
The Tenth Circuit 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)). Utah's Post-Conviction Remedies Act states, "A person is not eligible for relief
under this chapter upon any ground that . . . was raised or addressed at trial or on appeal [or]
could have been but was not raised at trial or on appeal." Utah Code Ann. § 78B-9-106(1)
(2017); compare 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.
"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, 218 F.3d at
1221 (alteration omitted) (citation omitted). Petitioner argues cause and prejudice are at play
here. Specifically, Petitioner asserts cause and prejudice stem from his lack of legal knowledge
and experience and inability to speak English.
"[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,

2

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, together with the potential language barrier, that are internal
to Petitioner’s defense.” Ardon-Aguirre v. Sorensen, No. 2:12-CV-914 DB, 2013 U.S. Dist.
LEXIS 150269, at *11 (D. Utah October 18, 2013) (emphasis in original).
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-of-justice
exceptions to the procedural bar. The court thus denies Petitioner federal habeas relief.
III.

CONCLUSION

Petitioner's challenges are procedurally barred and do not qualify for exceptional
treatment. IT IS THEREFORE ORDERED that Respondent’s motion to dismiss this habeas
corpus petition is GRANTED.

3

Signed January 10, 2018
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

4