Fairchild v. State of Utah et al
Filing
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MEMORANDUM DECISION & ORDER granting 17 Motion to Dismiss Habeas - Corpus Petition. Petitioner's habeas challenges are procedurally barred and do not qualify for exceptional treatment. It is therefore ordered that the Motion to Dismiss is granted. Signed by Judge David Nuffer on 09/03/2019. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
STEVEN MICHAEL FAIRCHILD,
MEMORANDUM DECISION & ORDER
GRANTING MOTION TO DISMISS
HABEAS-CORPUS PETITION
Petitioner,
v.
SHANE NELSON,
Case No. 2:17-CV-1317-DN
Respondent.
District Judge David Nuffer
Petitioner, Steven Michael Fairchild, requests habeas-corpus relief from his Utah state
convictions. See 28 U.S.C.S. § 2254 (2019). His convictions were affirmed by the Utah Court of
Appeals. State v. Fairchild, 2016 UT App 205, ¶ 1, cert. denied, 390 P.3d 724 (Utah 2017).
Respondent moves for dismissal. (Doc. No. 17.)
I. BACKGROUND
The facts are drawn from the Utah Court of Appeals’s opinion:
The State charged Defendant with one count of aggravated
robbery, a first degree felony; four counts of possession of a
firearm by a restricted person, a second degree felony; one count of
possession of a controlled substance with intent to distribute, a
second degree felony; and four counts of receiving stolen property,
a second degree felony. The State also sought to enhance
Defendant's sentence by having him designated as a habitual
violent offender. The parties agreed that the judge would determine
whether Defendant was a habitual violent offender and that the
remaining issues would be tried to a jury.
Before trial, the State moved to admit evidence, under rule
404(b) of the Utah Rules of Evidence, that Defendant was
convicted of robbing two Logan banks in December 1998 and
January 1999. The State argued that this evidence would show
motive, plan, intent, and identity and that it was not attempting to
impugn Defendant's character or establish his criminal propensity.
The court denied the State's motion and ordered that it not put on
evidence of Defendant's prior crimes at trial. One day before trial,
Defendant moved to sever the "restricted person" requirement from
the rest of the restricted-person-in-possession-of-a-firearm charge.
Instead, the parties stipulated that the "restricted person"
requirement was satisfied. The court agreed, ordering that it would
instruct the jury as to Defendant's restricted status but "would not
allow any evidence regarding [Defendant's] previous convictions
or the reasons why he is a restricted person."
Despite the 404(b) pretrial order and the stipulation, there were
multiple references to Defendant's status as a parolee during trial.
First, during the State's opening statement, the prosecutor told the
jury that Parole Officer "was a supervisor over [Defendant's
parole]," and Defendant's trial counsel did not object. Indeed, trial
counsel characterized Parole Officer in much the same way during
his own opening statement. Later, Parole Officer testified that he
knew Defendant in his capacity as a parole officer, stating that "in
June of 2011, [Defendant] paroled from prison to my caseload."
But he did not say why Defendant previously had been imprisoned,
and the prosecutor asked no follow-up questions. Defendant
objected and moved for a mistrial. The trial court denied the
mistrial motion.
During closing arguments, Defendant's trial counsel and the
prosecutor each referred to Defendant's status as a parolee. First,
trial counsel said, "in the late fall of 2011, [Defendant] and
[Girlfriend] went to the office of [Parole Officer]. They asked . . .
permission to live together, to further their relationship. [He]
granted their request." And the prosecutor repeated Parole Officer's
name and title before stating, "He supervised the defendant."
When the court was preparing to instruct the jury that
Defendant was a restricted person, the prosecutor suggested that
the instruction include that Defendant was on parole at the time of
the gas station robbery. The court refused, stating, "Well, I don't
want to bring any more attention to that fact, frankly. I shouldn't
have--well, parole, we're okay with that." The court ultimately
issued a limiting instruction, informing the jury that Parole Officer
only mentioned Defendant's parole to show that he
knows the defendant and is familiar
with him. Do not use it for any other
purpose. It is not evidence that the
defendant is guilty of the crimes for
which he is now on trial. . . . You
may not convict a person simply
because you believe he may have
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committed some other acts at another
time.
The jury also heard testimony from Girlfriend, the two
employees who were at the gas station during the robbery, and
Employee. One of the employees testified that the robber had blue
eyes, but Defendant has brown eyes. The State also presented the
gas station's surveillance video, which showed the male suspect
wore a dark hooded jacket, jeans, and white shoes. And it
presented evidence of the items police found in Defendant's truck-the bandana, wallet, Camel cigarettes, psychedelic mushrooms,
and guns.
The jury returned a guilty verdict on each of the ten counts
against Defendant. The court then initiated a bench trial on the
issue of whether Defendant was a habitual violent offender. It
determined that he was. At sentencing, the trial court imposed
indeterminate sentences of five years to life for aggravated robbery
and each of the four weapons possession charges, one to fifteen
years for the drug possession charge, and one to fifteen years for
each theft by receiving stolen property charge. The court ordered
that these sentences run consecutively to each other and to the
sentence Defendant was already serving.
Defendant then filed a motion for new trial, arguing that the
statements during trial that he was on parole violated the pretrial
order and unfairly prejudiced him. The court denied Defendant's
motion, ruling that Parole Officer's testimony did not violate the
pretrial order and that, even if it did, the error was harmless both
because the totality of the evidence supported conviction and
because the curative instruction ameliorated any potential harm.
Finally, Defendant filed a motion challenging the legality of his
sentence. Citing Utah Code section 76-3-401, he asserted that
consecutive sentences can never exceed thirty years. The trial court
denied the motion on the ground that Defendant received five
sentences with a maximum sentence of life imprisonment and the
thirty-year limitation does not apply to offenses with the possible
maximum sentence of life imprisonment. See Utah Code Ann. §
76-3-401(1)(6)(b) (2012). Defendant appeals the trial court's denial
of his motion for a new trial and his sentence.
Fairchild, 2016 UT App 205, ¶¶ 6-14.
The Utah Court of Appeals affirmed Petitioner’s conviction, after rejecting Petitioner’s
assertions that (a) he should have been granted “a new trial because Parole Officer's testimony
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and the other references to his status as a parolee violated the trial court's pretrial order and
denied him his rights to due process, the presumption of innocence, and a fair trial,” id. ¶ 17;
and, (b) his sentence violated state statute and the Utah Constitutional grant of authority to the
Utah Board of Pardons and Parole, id. ¶ 26.
Petitioner then brought an unsuccessful petition for certiorari review before the Utah
Supreme Court. (Doc. No. 17-9.) These are his “Questions Presented for Review” there: (1) Did
the Utah Court of Appeals err in not imposing “a heightened harmless error burden where the
statements and evidence submitted to the jury violated [Petitioner’s] constitutional right to a fair
trial?” (Id.) And, (2) “under the correct burden, can it be said beyond a reasonable doubt that the
repeated references to [Petitioner being a restricted person and recent parolee were] all
harmless?” (Id.)
II. ASSERTED GROUNDS FOR FEDERAL HABEAS RELIEF
Here, Petitioner raises the following issues: (1) “Constitutional violation(s) Article one
Section 7 Due Process of Law, Utah Constitution,” specifying that the Utah Court of Appeals did
not properly address “the Chapman standard,” Chapman v. California, 386 U.S. 18, 25-26
(1967) (“In evaluating whether an evidentiary error was harmless beyond a reasonable doubt, the
State bears the burden of demonstrating that the improperly elicited testimony was harmless
beyond a reasonable doubt.”), and that the trial court and defense counsel violated Petitioner’s
presumption of innocence; (2) trial court’s plain error in allowing prosecution to repeatedly
introduce suppressed evidence; (3) ineffective assistance of counsel regarding counsel’s failure
to object to introduction of suppressed evidence; and (4) “Constitutional violation(s) & under
Utah Code Section 76-3-401, the Eight Amendment to the U.S. Constitution and Article one
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Section 9 of the Utah Constitution, “ specifying “[t]he trial court failed to consider the proper
factors and its harsh sentence is not justified.” (Doc. No. 1.)
III. CHALLENGES BASED ON STATE LAW
Petitioner alleges violations of the Utah Constitution’s Due Process Clause and
prohibition on cruel and unusual punishment, the state trial court’s ruling requiring suppression
of evidence based on the Utah Rules of Evidence, and state sentencing law.
These alleged violations are based on state law and, therefore, fail to raise a federal issue,
as required. The United States Supreme Court has "stated many times that 'federal habeas corpus
relief does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting
Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); see also Pulley v. Harris, 465 U.S. 37, 41 (1984)
("A federal court may not issue the writ on the basis of a perceived error of state law.").
The Supreme Court has repeatedly emphasized "that it is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions. In habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States." Id. at 67-68 (citing 28 U.S.C.S § 2241 (2019)). Thus, Petitioner's
claims--based on alleged violations of the state constitution and statute--do not raise federal
challenges; further federal habeas review of state-law-based claims is unwarranted. See Larson v.
Patterson, 2:09-CV-989-PMW, 2011 U.S. Dist. LEXIS 3831 (D. Utah Jan. 14, 2011)
(unpublished) ("Petitioner's first argument that the trial court should have . . . dismissed the
charges against him is based entirely on state law. . . . Therefore, this Court will not further
consider this state-law-based argument."); see also Scott v. Murphy, 343 F. App'x 338, 340 (10th
Cir. 2009) (rejecting petitioner's . . . claim that "involve[d] purely matters of state law.").
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Thus, these issues--based on state law--will not be treated further: due process and crueland-unusual punishment arguments based on the Utah Constitution; assertions of evidentiary
errors by trial court in allowing suppressed evidence at trial; and allegedly improper sentencing
based on Utah statute.
IV. PROCEDURAL DEFAULT
In addition, every asserted ground for relief here is procedurally defaulted on federal
habeas review. This is because the only issue Petitioner raised to the Utah Supreme Court was
first raised in his reply brief on appeal to the Utah Court of Appeals. (Doc. Nos. 17-7 & 17-9.)
The issues raised to the supreme court regarded only what standard the court of appeals should
have used in evaluating any possible prejudice to Petitioner caused by the trial court’s error in
violating its own evidentiary ruling. (Doc. No. 17-9.)
The court of appeals noted,
[H]aving ruled in its pretrial order that “evidence pertaining to the
prior robberies” could not be admitted at trial, it is perplexing that
the trial court permitted the jury to hear references to Defendant’s
status as a recently released parolee in opening and closing
argument and during Parole Officer’s testimony. Because the trial
court had already determined in its pretrial order that the evidence
violated Rule 404, the evidence should not have been admitted and
failure to exclude it was erroneous.
Nevertheless, we cannot conclude that Defendant was
prejudiced by these statements. In denying Defendant’s motion for
new trial, the trial court correctly concluded that any violation of
its pretrial order was harmless. Errors are harmless when “there is
no reasonable likelihood that the error affected the outcome of the
proceedings.” State v. Verde, 770 P.2d 1116, 120 (Utah 1989). And
we require that the error be substantial enough that “the likelihood
of a different outcome [is] sufficiently high to undermine
confidence in the verdict.” State v. Knight, 734 P.2d 913, 920
(Utah 1987); cf. State v. Houskeeper, 2002 UT 118, ¶ 26, 62 P.3d
444 (“[E]ven if we assume that the evidence was improper, an
appellate court will not overturn a jury verdict for the admission of
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improper evidence if the admission of the evidence did not
reasonably [a]ffect the likelihood of a different verdict.”).
Fairchild, 2016 UT App 205, ¶¶ 18-19 (citation & footnote omitted).
So, the harmless-error issue was before the trial court, yet Petitioner did not argue for use
of the Chapman standard of review until his reply brief in the Utah Court of Appeals:
While Utah Courts will not reverse a harmless constitutional
violation, see Harmon, 956 P.2d at 268, they require a new trial if
“there is a reasonable probability that it affected the reliability of
the trial outcome.” Id. Furthermore, “the State bears the burden
of demonstrating that the improperly elicited testimony was
harmless beyond a reasonable doubt.” State v. Morrison, 937
P.2d 1293, 1296 (Utah Ct. App. 1997) (emphasis added).”
(Doc. No. 17-7.) It is really this last sentence that is the crux of Petitioner’s failure to exhaust.
His whole argument to the Utah Supreme Court is that the Utah Court of Appeals did not use
that--bolded--standard when evaluating the prejudice to Petitioner of the erroneously allowed
evidence of Petitioner’s parolee status.
But, Utah state law holds that “[i]ssues not raised in an opening brief are waived.”
Rodriguez v. Kroger Co., 2018 UT 25, ¶ 31, n.8. The Utah Supreme Court explained,
This requirement is rooted in considerations of fairness. If new
issues could be raised in a reply brief, the appellee would have no
opportunity to respond to those arguments. It is well settled that
“issues raised by an appellant in the reply brief that were not
presented in the opening brief are considered waived and will not
be considered by the appellate court.”
Allen v. Friel, 2008 UT 56, ¶ 8.
This Court may not consider issues "defaulted in state court on independent and adequate
state procedural grounds 'unless [petitioner] can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or demonstrate that failure to
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consider the claims will result in a fundamental miscarriage of justice.’” Hamm v. Saffle, 300
F.3d 1213, 1216 (10th Cir. 2002) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
Utah's appellate rules state that “issues raised by an appellant in the reply brief that were
not presented in the opening brief are considered waived and will not be considered by the
appellate court.” Brown v. Glover, 2000 UT 89, ¶ 23. Petitioner did not raise the Chapman
standard until his reply brief before the Utah Court of Appeals; thus, he waived that issue and it
was not considered in the court of appeals’s opinion. Fairchild, 2016 UT App 205.
Based on the Court's review of Utah cases, these rules are "independent and adequate
state procedural ground[s]" for dismissal of Petitioner's case in that they are "'strictly or regularly
followed' and employed 'evenhandedly to all similar claims.’” See Hamm, 300 F.3d at 1216
(quoting Hickman v. Sears, 160 F.3d 1269, 1271 (10th Cir. 1998)) (quotation omitted in
original); see, e.g., Rodriguez, 2018 UT 25, ¶ 31, n.8; Allen, 2008 UT 56, ¶ 8; Brown, 2000 UT
89, ¶ 23.
Under the federal law outlined earlier, this Court must therefore dismiss Petitioner's
defaulted issues unless cause and prejudice or a fundamental miscarriage of justice redeems their
default. See Gonzales v. Jordan, 37 F. App’x 432, 436 (10th Cir. 2002) (unpublished).
Petitioner possibly argues cause and prejudice are at play here. Specifically, Petitioner
may assert cause and prejudice stem from his lack of legal resources and experience.
"[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
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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.”
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 exception to the
procedural bar. The Court thus denies Petitioner federal habeas relief.1
1
Petitioner’s Motion for Additional Pages (for Amended Information in Support of Writ for Habeas Corpus)
contains an incoherent argument regarding Brady v. Maryland, 373 U.S. 83, 87 (1963), which is apparently raised
for the first time in that responsive-type pleading; the Court will not address it further. (Doc. No. 20.) The Motion
appears to be more properly construed as a response to Respondent’s Motion to Dismiss, (Doc. No. 17).
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V. CONCLUSION
Petitioner's habeas challenges are procedurally barred and do not qualify for exceptional
treatment. IT IS THEREFORE ORDERED that the Motion to Dismiss is GRANTED. (Doc.
No. 17.)
DATED this 3rd day of September, 2019.
BY THE COURT:
DAVID NUFFER
United States District Judge
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