Blanke v. State of Utah

Filing 2

MEMORANDUM DECISION AND ORDER - The Court finds Mr. Blanke has failed to raise a sufficient basis warranting federal habeas relief, and the court hereby Denies Mr. Blanke's Petition for Writ of Habeas Corpus. Signed by Judge Bruce S. Jenkins on 5/23/2017. (las)

IN THE UNITED STATES DISTRICT COURT

FILED
2017 MAY 23 AM 10:53
CLERK
U.S. DISTRICT COURT

FOR THE DISTRICT OF UTAH

KEVIN BLANKE,
Petitioner,

MEMORANDUM DECISION DENYING
PETITION FOR WRIT OF HABEAS
CORPUS

v.
STATE OF UTAH,
Respondent.

Case No. 2:17-CV-00341-BSJ
District Judge Bruce S. Jenkins

On May 4, 2017, Mr. Blanke filed ~th the court a Petition for Writ of Habeas Corpus
and attached several documents as addendum, including the following: (i) Mr. Blanke's April 15,
2016 Motion for Appointment of Counsel filed in the Third Judicial District Court for the State
of Utah ("State District Court"); (ii) the State District Court's May 18, 2016 order denying Mr.
Blanke's Motion for Appointment of Counsel and Motion to Correct an Illegal Sentence; (iii) the
Utah Court of Appeals' October 11, 2016 Order of Summary Affirmance; and (iv) the Utah
Supreme Court's January 7, 2017 order denying Mr. Blanke's Petition for Writ ofCertiorari. 1
The Petition for Writ of Habeas Corpus raises two grounds for Mr. Blanke's claim that he
is being held in violation of the United States Constitution.
First, Mr. Blanke alleges the State District Court violated his Sixth Amendment rights
when the court denied his Motion for Appointment of Counsel. 2 However, this first basis for
\

relief is a challenge to a state post-conviction proceeding, not a challenge to the state proceeding
or judgment that provides the basis for Mr. Blanke's conviction, and it therefore fails to raise
1

2

r

'

·•

See CM/ECF No. 1.
See id. at 5 of 31.

constitutional claims cognizable in a federal habeas proceeding. 3 As such, the State District
Court's post-conviction denial of Mr. Blanke's Motion for Appointment of Counsel does not
provide a basis for federal habeas relief.
Second, Mr. Blanke alleges as a ground for relief that the State District Court violated his
Fifth and Fourteen Amendment rights when it allegedly failed to adjudicate his Motion to
Withdraw Guilty Plea, filed on or about January 6, 2003, before the court sentenced Mr. Blank
on or about May 23, 2003. 4 Mr. Blanke argues that Utah Code section 77-13-6(2)(b) obligated
the State District Court to adjudicate his motion before sentencing him, as it dictates that "[a]
request to withdraw a plea of guilty ... shall be made by motion before sentence is announced"
and that a "[s]entence may not be announced unless the motion is denied."
This second ground for relief is deficient for several reasons. As an initial matter, it is
untimely. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A") imposes a
one-year limitation on federal petitions for writs of habeas corpus by persons "in custody
pursuant to the judgment of a State court." 5 The one-year limitation period runs from the latest of
four dates, including, as relevant for the present case, 6 "the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking such review," 7
and "the date on which the factual predicate of the claim or claims presented could have been

3

See United States v. Dago, 441 F.3d 1238, 1248 (10th Cir. 2006).

4

See Pet. for Writ of Habeas Corpus (CM/ECF No. 1) at 7 of31.

5

28

u.s.c § 2244(d)(l).

6

Mr. Blanke makes no assertions in his Petition that require analysis of this case under § 2244( d)(l )(B),
§ 2244(d)(l )(C), or principles of equitable tolling.
7

28 U.S.C. § 2244(d)(l)(A).

2

discovered through the exercise Of due diligence." 8 In either case, the one-year limitation period
began running in 2003 and elapsed in 2004. Mr. Blanke's judgment was entered in May 2003
and was not directly appealed. And the factual predicate of Mr. Blanke's claims-the alleged
failure of the State District Court to adjudicate his Motion to Withdraw Guilty Plea-could have
been discovered through the exercise of due diligence by May 2003. 9 As such, Mr. Blanke's
recently filed Petition for Writ of Habeas Corpus is untimely and is barred by AEDPA's oneyear limitation.
Additionally, Mr. Blanke's second ground for relief is problematic because Utah state
courts have already detennined that there was no pending Motion to Withdraw Guilty Plea when
Mr. Blanke was sentenced in May 2003. Both implicitly in 2003 and explicitly in 2016, the State
District Court and the Utah Court of Appeals found that Mr. Blanke's motion was mooted or
otherwise withdrawn by Mr. Blanke having renewed his guilty plea in February 2003. AEDPA
imposes on federal courts a highly deferential standard for evaluating such state court
determinations. 10 And Mr. Blanke has not provided evidence that such determination was so
erroneous as to overcome that deference. 11 ·Further, though Mr. Blanke may argue that the Utah
state court detennination that there was no pending Motion to Withdraw Guilty Plea when Mr.
Blanke was sentenced in May 2003 is an incorrect application of Utah Code section 77-13-

8

28 U.S.C. § 2244(d)(l)(D).

9

Indeed, Mr. Blanke offers no explanation for why, after filing his Motion to Withdraw Guilty Plea on or
about January 6, 2003, he did not explicitly inquire about the motion at his February 14, 2003 scheduling
conference, especially if he did not consider his guilty plea at that scheduling conference sufficient to dispose of the
motion.
10

See Ellis v. Raemisch, No. 15-1088, 2017 WL 1950949, at *12 (10th Cir. May 11, 2017) (citing Byrd v.
Workman, 645 F.3d 1159, 1166 (10th Cir. 2011)).
11

See 28 U.S.C. § 2254(d).

3

6(2)(b), this contention would not warrant federal habeas relief, as "[a] federal court may not
issue the writ on the basis of a perceived error of state law."

12

Finally, Mr. Blanke's second ground for relief is problematic because, even if were a
constitutional error for the State District Court to determine that there was no pending Motion to
Withdraw Guilty Plea when Mr. Blanke was sentenced, such error was harmless and does not
warrant federal habeas relief. 13 Mr. Blanke does not dispute that after filing his Motion to
Withdraw Guilty Plea, he thereafter at a February 14, 2003 scheduling conference again pled
guilty. Nor does Mr. Blanke contend that he sought at any time to withdraw the guilty plea made
at the February 14, 2003 scheduling conference. As any state court failure to adjudicate Mr.
Blanke's prior Motion to Withdraw Guilty Plea was therefore harmless, Mr. Blanke is not
entitled to federal habeas relief.
For the reasons heretofore described, the court finds Mr. Blanke has failed to raise a
sufficient basis warranting federal habeas relief, and the court hereby DENIES Mr. Blanke's
Petition for Writ of Habeas Corpus.

DATED this

~

~O~ay ofMay, 2017.

12

Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).

13

See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).

4