Taylor v. State of Utah

Filing 65

MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS-granting 47 Motion to Dismiss ; denying 50 Motion ; denying 52 Motion to Appoint Counsel ; denying 55 Motion to Appoint Counsel ; Denying as moot 58 Motion to Vac ate ; Denying as moot 63 Motion to Vacate ; Motions terminated: 58 MOTION to Vacate filed by Roy D. Taylor, 55 MOTION to Appoint Counsel filed by Roy D. Taylor, 50 MOTION for order directing Utah State Prison contract attorneys to pr ovide petitioner with a copy of every case citied in motion to dismiss filed by Roy D. Taylor, 63 MOTION to Vacate filed by Roy D. Taylor, 52 MOTION to Appoint Counsel filed by Roy D. Taylor, 47 MOTION to Dismiss filed by State of Utah. See Order for details. Signed by Judge Clark Waddoups on 3/5/20. (jrj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ROY DEAN TAYLOR,
Petitioner,

MEMORANDUM DECISION & ORDER
GRANTING MOTION TO DISMISS

v.
UTAH STATE PRISON WARDEN,
Respondent.

Case No. 2:18-CV-8-CW
District Judge Clark Waddoups

Acting pro se, Petitioner, Roy Dean Taylor, has filed a fourth amended habeas-corpus
petition under 28 U.S.C.S. § 2254 (2020). (ECF No. 43.) The Court grants Respondent’s motion
to dismiss, (ECF No. 47), after thoroughly reviewing every document in this case.
BACKGROUND
In Utah state court, Petitioner was convicted by a jury of drug crimes. State v. Taylor,
2017 UT App 89, ¶ 1. On June 2, 2017, Utah Court of Appeals affirmed the convictions. Id.
Petitioner did not petition the Utah Supreme Court for certiorari review. Nor did Petitioner apply
for state post-conviction relief. He now challenges his convictions in this federal habeas petition.
(ECF No. 43.)
The grounds raised are: (1) traffic stop lacked probable cause; (2) unconstitutional search
and seizure; (3) ineffective assistance of trial counsel for not (a) producing brief as ordered in
court, (b) telling jury of plea bargain, and (c) adequately investigating. In his responses to the
Motion to Dismiss, Petitioner possibly also raises ineffective assistance of appellate counsel,
either as a standalone ground for habeas relief or as an exception to the procedural bar.

ANALYSIS
In its Motion to Dismiss, (ECF No. 47), Respondent argues that Petitioner's issues are
unexhausted and procedurally defaulted. The Court agrees.
A. Exhaustion
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.S. § 2254(b) & (c) (2020); 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 neither petitioned
for writ of certiorari as to his failed direct appeal nor sought post-conviction relief, Petitioner did
not present any issue to the highest Utah court available, the Utah Supreme Court. His claims
before this Court are therefore unexhausted.
B. Procedural Default
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)).
Utah's Post-Conviction Remedies Act 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 . . . or is

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barred by the limitation period established in Section 78B-9-107." Utah Code Ann. § 78B-9106(1) (2020); cf. Hale v. Gibson, 227 F.3d 1298, 1328 (10th Cir. 2000). Section 78B-9-107
states, "A petitioner is entitled to relief only if the petition is filed within one year after the cause
of action accrued." Utah Code Ann. § 78B-9-107(1) (2020).
Petitioner's issues as to the constitutionality of his traffic stop and search and seizure
could have been but were not raised by certiorari petition to the Utah Supreme Court. And,
Petitioner's ineffective-assistance-of-trial-counsel issues also could have been but were not raised
by certiorari petition to the Utah Supreme Court; after all, he had different counsel on appeal
than he had at trial. (ECF No. 43, at 13.) Finally, Petitioner's possible ineffective-assistance-ofappellate-counsel claims could have been raised in a state-post-conviction application,
presumably within one year of the Utah Court of Appeals's decision on June 2, 2017. That time
has long since expired.
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.
• Exceptions
"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 asserts both cause and prejudice and a
fundamental miscarriage of justice. Specifically, he asserts that that he was hampered by lack of
legal knowledge and resources and that he is actually innocent.

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1. 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, 57
F. App'x 781, 784 (10th Cir. 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, 58 F. App'x 819, 822 (10th Cir.
2003) (unpublished) (holding limited knowledge of 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 corresponding lack of awareness and training on legal issues do not
constitute adequate cause for failure to previously raise claims). “Indeed, these are factors . . .
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).
Further, Petitioner possibly raises ineffective-assistance-of-appellate counsel (for not
telling him he could petition for certiorari review) as an exceptional circumstance providing
cause to excuse his default.

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"But an ineffective assistance of counsel claim must itself be
exhausted before it can provide 'cause' to excuse procedural
default." Davis v. Schnurr, 785 F. App'x 519, 524 (10th Cir. 2019)
(unpublished) (citing Edwards v. Carpenter, 529 U.S. 446, 451
(2000); Murray v. Carrier, 477 U.S. 478, 489 (1986)). Petitioner
has not separately raised the issue of ineffective assistance of
appellate counsel for failing to [advise him that he could petition
the Utah Supreme Court for certiorari review.] See id. Petitioner's
"ineffective-assistance argument is therefore itself procedurally
defaulted and cannot provide 'cause' to excuse his default." Id.
Finlayson v. Utah, No. 2:15-CV-818-DAK, 2019 U.S. Dist. LEXIS 170108, at *15 (D. Utah
Sept. 30, 2019).
2. Actual Innocence
Finally, Petitioner suggests that a miscarriage of justice will occur if this Court does not
address his defaulted claims. This is based on his argument that, because the search was illegal,
any evidence obtained from it should not have been used against him.
However,
[c]hallenging the search and seizure of the drug evidence, even if
successful, would not show actual innocence--that he did not
commit the drug offense. It would instead show certain evidence
should not have been admitted at trial. . . ."'[A]ctual innocence'
means factual innocence, not mere legal insufficiency." Bousley v.
United States, 523 U.S. 614, 623 (1998).
Further, a prisoner can establish actual innocence in postconviction proceedings only by bringing forward new exculpatory
evidence. See McQuiggin v. Perkins, 569 U.S. 383, 386-87
(2013); Schlup v. Delo, 513 U.S. 298, 324 (1995) (stating prisoner
must "support his allegations of constitutional error with new
reliable evidence . . . that was not presented at trial"). [Petitioner]
has presented no new evidence affirmatively demonstrating he is
innocent of the charged crimes. See United States v. Cervini, 379
F.3d 987, 991-92 (10th Cir. 2004) (citing Schlup, 513 U.S. at 328);
Brian R. Means, Federal Habeas Manual § 9B:80 (May 2017
update).

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. . . [T]he actual innocence gateway [is] not . . . available to
[Petitioner] because he fails to present new evidence showing he
did not commit the drug offense. In short, he does not make a postconviction actual innocence claim.
Warren v. United States, 707 F. App'x 509, 512 (10th Cir. 2017) (unpublished).
The Court concludes that Petitioner's issues are procedurally defaulted. And, they do not
qualify for consideration under the cause-and-prejudice or miscarriage-of-justice exceptions to
the procedural bar.
CONCLUSION
Petitioner's challenges are procedurally barred and do not merit exceptional treatment.
The Court thus denies Petitioner federal habeas relief.
IT IS ORDERED that:
(1) Respondent’s Motion to Dismiss is GRANTED. (See ECF No. 47.)
(2) For the same reasons his first motion for appointed counsel was denied, (ECF No. 42,
at 3-4), Petitioner's second and third motions for appointed counsel are DENIED. (ECF Nos. 52
& 55.)
(3) Petitioner's motion for prison contract attorneys to provide him with specific legal text
is DENIED. (ECF No. 50.) After all, "[t]he right of access [to] the courts is 'only [the right] to
present . . . grievances to the courts,' and does not require prison administrators to supply
resources guaranteeing inmates' ability 'to litigate effectively once in court' or to 'conduct

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generalized research.'" Brooks v. Colo. Dep't of Corr., 730 F. App'x 628, 632 (10th Cir. 2018)
(unpublished) (some alterations in original) (quoting Lewis v. Casey, 518 U.S. 343, 354, 360
(1977)).
(4) Petitioner’s first and second Motions to Vacate Sentence are DENIED AS MOOT.
(ECF Nos. 58 & 63.)
(5) Certificate of appealability is DENIED.
DATED this 5th day of March, 2020.
BY THE COURT:

CLARK WADDOUPS
United States District Judge

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