Thompson v. Benzon
MEMORANDUM DECISION AND ORDER Denying Habeas Relief. Signed by Judge Dale A. Kimball on 9/7/2021. (eat)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION &
ORDER DENYING HABEAS RELIEF
Case No. 2:18-CV-320-DAK
District Judge Dale A. Kimball
Petitioner, Wesley Thompson, filed a pro se habeas corpus petition. See 28 U.S.C.S. §
2254 (2021). Having thoroughly reviewed all documents filed, the Court denies the petition.
Petitioner pleaded guilty to two counts of child sexual abuse and one count of attempted
child sexual abuse. (ECF No. 1, at 1.) He was sentenced to consecutively serve two terms of oneto-fifteen years and one term of zero-to-five years. (ECF No. 1-2, at 220.)
On appeal, Utah Court of Appeals affirmed his sentence, against challenges as to lack of
findings and fairness, and failure to consider sentencing factors. State v. Thompson, 2010 UT
App 141. He did not petition for writ of certiorari. Any issues brought on direct appeal are thus
unexhausted and ultimately procedurally defaulted.
On February 18, 2011, Petitioner timely filed a state post-conviction petition, case
number 110400801. (ECF No. 40-6, at 2.) The petition was denied. (ECF No. 1-2, at 187.) On
appeal, the Utah Court of Appeals affirmed the denial. Thompson v. State, No. 20171025-CA,
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slip op. (Utah Ct. App. May 1, 2018). The Utah Supreme Court denied a petition for writ of
certiorari. Thompson v. State, No. 20180529-SC (Utah Oct. 2, 2018).
1. State Post-Conviction Petition
Petitioner’s state post-conviction petition contended:
(A) Ineffective assistance of trial counsel, when counsel did not (i) address with
Petitioner intent element and potential lesser-included offense which would have kept Petitioner
off sex registry; (ii) move for dismissal of charges; (iii) show Petitioner police reports and victim
interviews; (iv) tell Petitioner there would be a wait to get into a halfway house; (v) advise
Petitioner to not waive preliminary hearing; (vi) contest the psychosexual expert’s report; (vii)
challenge presentence investigation report (PSI); and (viii) object to consecutive enhancements
for both cases. (ECF No. 40-6, at 7-9.)
(B) Ineffective assistance of appellate counsel, when counsel did not withdraw for
conflict of interest--i.e., appellate counsel was in same office as trial counsel. (Id. at 10-11.)
(C) He was “sentenced to unconstitutional statutes.” (Id. at 11.)
In its first order regarding the petition, the trial court distilled Petitioner’s arguments to:
(1) trial-counsel ineffectiveness; (2) involuntary, coerced guilty plea; (3) appellate-counsel
ineffectiveness; and (4) unconstitutional sentencing scheme. (ECF No. 40-7, at 3.) On initial
review, the trial court then ruled that claims (1), (2), and (4) could have been brought on appeal
and thus were defaulted on state post-conviction review. (Id. at 4.) The appellate-counsel
ineffectiveness issue was deemed sufficient to move on to further litigation. (Id.) The trial court
later revoked its ruling and allowed Petitioner to proceed with his claims of trial-court
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effectiveness and his involuntary, coerced guilty plea. (ECF No. 40-10.) Thus, the only issue that
remained summarily dismissed was the unconstitutionality of the sentencing scheme. (Id.)
On summary-judgment, the trial court characterized Petitioner’s remaining arguments as:
trial- and appellate-counsel ineffectiveness, involuntariness of plea, reneging by the State on its
plea agreement, and PSI errors. (ECF No. 40-15, at 4.) Summary judgment was granted on
appellate-counsel ineffectiveness, the reneging claim, and PSI errors. (Id. at 6.) This is because
there was no prejudice from appellate-counsel ineffectiveness when trial counsel’s
ineffectiveness and could be raised in the state post-conviction petition. (Id. at 5-6.) And,
(independent of ineffective assistance of trial counsel for not raising these issues in the trial
court) the issue of involuntary plea should have been raised in motion to withdraw the plea,
while issues of reneging on the plea agreement and PSI errors could have been but were not
brought on appeal, resulting in a procedural bar. (Id. at 6, 12.)
After an evidentiary hearing, the trial court also denied Petitioner’s trial-counsel
ineffectiveness claims--i.e., withholding evidence and providing “insufficient explanations of
[Petitioner’s] legal rights and options prior to his guilty pleas.” (ECF No. 40-20, at 3, 9.)
2. Appeal of State Trial Court’s Denial of Post-Conviction Relief
Petitioner appealed to Utah Court of Appeals, raising these grounds, (ECF No. 40-21):
(A) Insufficient evidence/factually innocent; (B) no attorney present for ineffectiveassistance evidentiary hearings, against objections; (C) trial judge denied requests for expert
testimony; (D) trial judge denied discovery requests for documents proving psychosis; (E) trial
judge failed to rule on merits of claims presented; (F) trial judge did not consider evidence; (G)
“Judge made errors in maltiplicity [sic]”; (H) trial judge’s internally contradictory interlocutory
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order; (I) trial judge ignored Utah Code, Utah Constitution, and Federal Constitution; (J) trialjudge bias; (K) trial- and appellate-counsel ineffective assistance; and (L) cumulative effect.
The Utah Court of Appeals noted, “The lengthy list of issues [Petitioner] seeks to raise on
appeal demonstrates that he has not confined his challenges to the actual decisions dismissing the
petition.” Thompson, No. 20191025-CA. Implying any other issues than those involving the trial
court’s post-conviction decisions were procedurally barred, the court limited its review “to those
appellate claims actually challenging the district court’s decisions disposing of the postconviction petition.” Id. The court then ruled that the trial court “correctly applied the procedural
bar . . . in granting summary judgment” on claims that (1) the State reneged on the plea
agreement and (2) there were uncorrected errors in the [PSI],” and (3) Petitioner’s plea was not
voluntary and knowledgeable. Id. The court finally denied Petitioner’s claims of trial-counsel
ineffectiveness, stating Petitioner had not (a) “substantively challenged” the trial court’s findings
and reasoning or (b) provided a transcript of the evidentiary hearing, so that the court of appeals
had to presume evidentiary support for the trial court’s findings and disposition. Id.
3. Petition for Writ of Certiorari Regarding Utah Court of Appeals’s
Affirmance of State Trial Court Denial of Post-Conviction Relief
Petitioner then petitioned the Utah Supreme Court for writ of certiorari, raising these
grounds, (ECF No. 40-28):
(A) “Should an indigent prisoner petitioner be penalized for the district court’s adverse
interference in failing to rule on the motion to waive fees for the transcripts requested?”
(B) “Should the petitioner be penalized by not being allowed full briefing and plenary
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(C) Ineffective assistance of trial and appellate counsel.
The Utah Supreme Court denied certiorari review. Thompson, No. 20180529-SC.
4. Issues Raised in this Federal Habeas Petition
Petitioner now challenges his conviction and sentencing in this federal habeas petition,
raising these grounds:
(A) “Plea was not made voluntarily, knowingly and intelligently,” as Petitioner (i) was
psychotic; (ii) did not see or understand evidence; (iii) did not know psychosis was defense; (iv)
did not understand intent of sexual gratification was crime element; (v) did not understand “plea
system”; (vi) was coerced into plea bargain by “breach of contract”; (vii) did not know lesser
offense of sexual battery did not exist. (ECF No. 1, at 2.)
(B) State reneged on “plea contract” when arguing against agreed-upon sentencing
recommendation. (Id. at 3.)
(C) “Multiplicity” because “actions at water park was [sic] a single course of conduct.”
(D) PSI had errors. (Id.)
(E) Ineffective assistance of trial counsel, when counsel (i) withheld evidence of police
interviews and medical records, psychosis diagnosis and potential as defense, wait for halfway
house, and “complications of being released to a halfway house without first going to diagnostics
program at the prison”; (ii) did not object to state reneging on plea agreement and withdraw plea;
(iii) did not object to PSI errors; (iv) denied right to appeal; (v) did not explain intent element or
“plea bargaining system”; and (vi) did not tell Petitioner of “lifetime registry.” (Id. at 3-4, 12.)
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(F) Ineffective assistance of appellate counsel, when counsel (i) did not raise on appeal
claims of state reneging on “plea contract” and errors in PSI; and (ii) had conflict of interest
because “they could not be expected to argue how their coworkers made errors.” (Id. at 4, 7.)
(G) New statute regarding defense of mental illness should apply. (Id.)
In response to the petition, the State argues that Petitioner's issues are procedurally
defaulted. (ECF No. 29, at 1.) The Court agrees.
The Utah Court of Appeals denied all issues on appeal--except ineffective assistance of
appellate counsel1--as procedurally defaulted. Thompson, No. 20171025-CA. To boot, the only
issue Petitioner raised before Utah Supreme Court that was the same as those raised below was
ineffective assistance of counsel. (ECF No. 40-28.) Thus, none of the issues in the current federal
petition--aside from ineffective assistance of appellate counsel2--was raised in a way that allowed
substantive review at all levels of the state-court system.
The ineffective-assistance-of-appellate-counsel claim was denied by Utah Court of Appeals due to lack of
prejudice; after all, appellate counsel’s ineffective assistance was challenged as to appellate counsel’s failure on
appeal to raise ineffective assistance of trial counsel. Thompson, No. 20171025-CA. However, trial counsel’s
ineffectiveness was able to be asserted in a state post-conviction petition by new counsel. Id.
However, Petitioner did not frame this issue with the relevant federal standard of review in mind:
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 . . . 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 . . . .
28 U.S.C.S. § 2254(d)(1) (2021). He has not even argued, let alone shown, that the state courts’ decisions about
ineffective appellate counsel--i.e., no prejudice existed--were contrary to or an unreasonable application of United
States Supreme Court precedent. The Court thus does not consider this argument further.
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1. Procedural Default
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) (2021); 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 could have brought
the issues of reneging on the plea deal and PSI error on direct appeal but did not, and did not
provide a transcript to allow the Utah Court of Appeals to substantively review the issue of
ineffective assistance of trial counsel, Petitioner did not present the meat of any issue for a full
round of review in the Utah courts, culminating with the Utah Supreme Court. See O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (holding petitioner “must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process”). His claims before this Court are therefore unexhausted.
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
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appeal; was raised or addressed in any previous request for postconviction relief or could have been, but was not, raised in a
previous request for postconviction relief; or is barred by the
limitation period established in Section 78B-9-107.
Utah Code Ann. § 78B-9-106(1) (2021); 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) (2021).
"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 Petitioner
could have raised in a motion to withdraw his plea or direct appeal but did not--e.g.,
involuntariness of plea, reneging on plea “contract,” PSI errors. (2) Issue Petitioner did not
support by “substantively challeng[ing]” the trial court’s findings and reasoning and providing a
transcript to allow Utah Court of Appeals to substantively address--i.e., ineffective assistance of
trial counsel. And, (3) remaining issues of multiplicity and application of “new” statute regarding
defense of mental illness, which were apparently not raised at each level of state court review.
Under the Utah law identified above then, Petitioner is now foreclosed from raising any
of these procedurally defaulted arguments in future state post-conviction petitions. And, this
Court may not pass upon their substance--unless an exception exists. Thomas, 218 F.3d at 1221.
2. Procedural-Default Exception
Petitioner apparently asserts cause and prejudice as an exception that rescues him from
the effects of his procedural defaults. Specifically, he suggests that ineffective assistance of
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counsel during his state proceedings supplies cause and prejudice; and that he is actually
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)).
“Attorney error that constitutes ineffective assistance of counsel is cause.” Coleman v.
Thompson, 501 U.S. 722, 754-54 (1991). This is because, if the procedural default is the result of
ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the
default be imputed to the State." Murray v. Carrier, 477 U.S. 478, 488 (1986). To be clear, the
attorney’s error “constitutes a violation of petitioner's right to counsel, so that the error must be
seen as an external factor, i.e., ‘imputed to the State.’” Coleman, 501 U.S. at 754; see
also Evitts v. Lucey, 469 U.S. 387, 396 (1985) ("The constitutional mandate [guaranteeing
effective assistance of counsel] is addressed to the action of the State in obtaining a criminal
conviction through a procedure that fails to meet the standard of due process of law").
The problem for Petitioner here is that--on state post-conviction review--the state trial
court explicitly analyzed ineffective assistance of trial and appellate counsel and did not find
them wanting under the Strickland standard. After that, it was Petitioner who did not properly
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appeal the trial court’s decision to challenge whether the trial court’s decision was correct.
Again, Petitioner failed to mount a proper substantive attack on the decision and to provide a
transcript to allow the Utah Court of Appeals to substantively review the issue of ineffective
assistance of trial counsel. And, the ineffective-assistance-of-appellate-counsel claim was denied
by Utah Court of Appeals due to lack of prejudice; after all, appellate counsel’s ineffective
assistance was challenged as to appellate counsel’s failure on appeal to raise ineffective
assistance of trial counsel. Thompson, No. 20171025-CA. However, trial counsel’s
ineffectiveness was able to be asserted in a state post-conviction petition. Id.
When there exists no successful ineffective-assistance-of-counsel, the argument of
ineffective assistance of counsel may not be used to support an argument of cause to avoid
procedural default. Further, any other ineffective-assistance-of-counsel claim that Petitioner
thinks may support a cause argument must itself be properly exhausted in state court to be
validly used as cause; however, any such claims are now foreclosed in state court.
B. Actual Innocence. Petitioner also appears to suggest that his alleged mental
illness made it impossible for him to form the intent necessary to support his guilt based on the
elements of the crimes. However, “actual innocence’ means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623-24 (1998). Further, to benefit from
the exception, a petitioner must support his claim of actual innocence with "new reliable
evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence--that was not presented at trial." House v. Bell, 547 U.S. 518, 537
(2006 (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). Petitioner presents no such new
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evidence. And, perhaps undercutting his argument, his competency was established in state trial
court. (ECF No. 40-20, at 5-6.)
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.
Petitioner's challenges to the circumstances of his guilty plea and sentencing and claims
of ineffective assistance of counsel raise no valid grounds for federal habeas relief.
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IT IS THEREFORE ORDERED that this habeas corpus petition under § 2254 is
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
This action is CLOSED.
DATED this 7th day of September, 2021.
BY THE COURT:
DALE A. KIMBALL
United States District Judge
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