Thompson v. Benzon

Filing 67

MEMORANDUM DECISION AND ORDER DENYING Petitioner's 55 Motion for Relief from the Judgment. Petitioner's newly raised issues in his motion for relief from judgment are deemed the equivalent of a second-or-successive petition, but are not qualified to be transferred to the Tenth Circuit. A certificate of appealability is DENIED. This action remains closed. Signed by Judge Dale A. Kimball on 6/1/2022. (eat)

Case 2:18-cv-00320-DAK Document 67 Filed 06/01/22 PageID.1158 Page 1 of 13

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
WESLEY THOMPSON,
MEMORANDUM DECISION
& ORDER DENYING POSTJUDGMENT MOTION

Petitioner,
v.
WARDEN BENZON,

Case No. 2:18-CV-320 DAK
Respondent.

District Judge Dale A. Kimball

On September 7, 2021, this Court denied Petitioner's request for federal habeas-corpus
relief, brought under 28 U.S.C.S. § 2254 (2022). (ECF Nos. 1, 53.) The Court concluded that
Petitioner’s habeas claims were procedurally defaulted and not entitled to exceptional treatment.
(ECF No. 53, at 11.)
Petitioner then filed "Motion to Reconsider Court's Order," (ECF No. 55). Because this
post-judgment motion was filed within fifteen days of judgment, the Court construes it to have
been raised under Federal Rule of Civil Procedure 59(e), as a Motion to Alter or Amend a
Judgment. Petitioner’s motion to reconsider is an eighty-page, wide-ranging rehearsal of his
arguments, mostly already presented in his state-court process and before this Court. Petitioner
clearly mistakes the limited nature of a post-judgment motion.
RULE 59(e)
"The purpose of a Rule 59(e) motion is to correct manifest errors of law or to present
newly discovered evidence." Monge v. RG Petro-Mach. (Grp.) Co., 701 F.3d 598, 611 (10th Cir.
2012) (brackets and internal quotation marks omitted). "Grounds for granting a Rule 59(e)
1

Case 2:18-cv-00320-DAK Document 67 Filed 06/01/22 PageID.1159 Page 2 of 13

motion include (1) an intervening change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent manifest injustice." Id. (internal
quotation marks omitted). However, a Rule 59(e) motion, "is not [the] appropriate [vehicle] to . .
. advance arguments that could have been raised in prior briefing." Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Moreover, a 59(e) motion is “appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law.” Id. at 1012.
In habeas cases, this rule interplays with the federal statute about second-or-successive
habeas petitions. The applicable statutory language states:
A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless-- . . .
(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
28 U.S.C.S. § 2244(b)(1)(B) (2022).
Based on Tenth Circuit law, this Court must determine “whether the motion is a true
[Rule 59(e)] motion[,] or a second or successive petition.” Spitznas v. Boone, 464 F.3d 1213,
1217 (10th Cir. 2006); see also Gonzalez v. Crosby, 545 U.S. 524, 538 (2005) (clarifying that not
all [59(e)] motions in federal habeas cases are second or successive petitions); United States v.
Pedraza, 466 F.3d 932, 933 (10th Cir. 2006) (holding Rule 59(e) motions are subject to same
treatment as Rule 60(b) motions under Spitznas). This Court may rule on true 59(e) arguments
here. However, “second or successive” issues must be “certified by a panel of the [Tenth Circuit]

2

Case 2:18-cv-00320-DAK Document 67 Filed 06/01/22 PageID.1160 Page 3 of 13

pursuant to § 2244 before [they] may proceed in district court.” Id. at 1215 (citing 28 U.S.C.S. §
2244 (2022)).
Gonzalez explains that “a 60(b) [or 59(e)] motion is a second or successive petition if it in
substance or effect asserts or reasserts a federal basis for relief from the petitioner’s underlying
conviction.” Spitznas, 464 F.3d at 1215 (citing Gonzalez, 545 U.S. at 538).
PETITIONER’S POST-JUDGMENT-MOTION ISSUES
To determine whether Petitioner’s filing is a true post-judgment motion or a second-orsuccessive petition, the Court now reviews Petitioner's possible post-judgment arguments, culled
from his eighty pages of dense prose:
(1) Petitioner asserts that his actual or factual innocence provides an exception to denial
of habeas relief based on procedural default. (ECF No. 55, at 23.) In support of this assertion,
Petitioner states that, “on August 28, 2008, a petition to determine his competency was filed and
independent reports were received which indicated a diagnosis of bi-polar and psychosis,” and a
drop “31 point drop” in IQ from “severe brain damage from past drug use.” (ECF No. 55, at 3.)
Despite this information, “[t]he trial court concluded that the petitioner was competent to
proceed.” (Id.) He argues though that this information shows that he “could not have formed the
requisite mens rea” to commit the crime and therefore the evidence could not have supported the
intent element of the crime. (Id. at 45.) Petitioner already urged this basis for habeas relief here.1
And this Court rejected these arguments as follows:
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
1

The way Petitioner puts it is that he “admits to the actus reas--the actor touches the pubic area of a child
but denies the mens rea--with intent to arouse or gratify the sexual desire of any individual.” (ECF No. 55, at 83.)

3

Case 2:18-cv-00320-DAK Document 67 Filed 06/01/22 PageID.1161 Page 4 of 13

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 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.
(ECF No. 53, at 10-11.)
Petitioner continues to lack “new reliable evidence” of factual innocence. And, because
Petitioner has not asserted factual innocence, but legal innocence, he also remains unqualified for
this exception. See In re Vertin, No. 17-1355, 2017 U.S. App. LEXIS 27494, at *5 (6th Cir. Sept.
1, 2017) (“Vertin does not deny that he shot the victim, but rather argues that his mental
incompetency caused him to have ‘unplanned intoxication’ at the time of the offense and thus
rendered him unable to form the premeditation required to be convicted of first-degree murder.
This argument does not meet the actual innocence standard.”). The Court thus stands by its
original conclusion that Petitioner’s alleged inability to form intent to commit this crime does not
provide a basis to apply the actual-innocence exception to Petitioner’s procedural default here.
Regarding this argument, to support the granting of this post-judgment motion, Petitioner
suggests no intervening change in controlling law, new evidence previously unavailable, clear
4

Case 2:18-cv-00320-DAK Document 67 Filed 06/01/22 PageID.1162 Page 5 of 13

error by this Court, or support for an argument of manifest injustice. This ground thus does not
sustain the grant of Rule 59(e) relief, nor does it appear to constitute a “second or successive”
petition, in that Petitioner simply reargues the issue much as he presented it in the original
petition. His aim here appears to be the assertion of error or misapprehension by this Court. This
argument thus forms no basis for post-judgment relief here.
An important point here is that this Court’s continued rejection of Petitioner’s actualinnocence argument carries over to the next five of Petitioner’s challenges listed below--all
denied as grounds for relief in the Court’s dismissal Order. (ECF No. 53.) None of his procedural
defaults may be excused by actual innocence under Petitioner’s arguments here, so those five
challenges remain foreclosed from further consideration. The procedural defaults that remain
unexcused regard issues (2) through (7), below. These five are also not second or successive, as
is appears that Petitioner’s goal here is to suggest this Court erred or misapprehended the facts,
his position, or controlling law.
As to issues (2) through (7), Petitioner argues:
(2) The State breached his plea agreement at sentencing by not recommending as
promised “that the petitioner complete inpatient sex offender treatment at Bonneville
Community Correctional Center in lieu of any jail or prison sentence,” instead suggesting the
recommended sentence posed “some concerns about [Petitioner] being placed back in the
community” and a need for “more accountability than what is provided in the recommended
sentence.” (ECF No. 55, at 4, 15.)
(3) Ineffective assistance of trial counsel.

5

Case 2:18-cv-00320-DAK Document 67 Filed 06/01/22 PageID.1163 Page 6 of 13

(4) Petitioner’s guilty plea was not knowing and voluntarily made, because (a) Petitioner
was suffering from psychosis at the time of the offense and could not have formed the required
mens rea; and (b) of ineffective assistance of counsel, as described in the above paragraph. (Id. at
11-12, 23.)
(5) Charges in the second case against Petitioner were “stacked illegally because it was a
single course of conduct.” (Id. at 16.)
(6) Petitioner was prejudiced by the presentencing report containing false statements of
an APP officer. (ECF No. 55, at 17.)
(7) “New statute made before sentence and conviction became final applies
retroactively.”2 (ECF No. 55, at 23.)
Arguments below are not related to the actual-innocence exception to procedural default.
(8) Petitioner argues appellate-counsel ineffective assistance occurred through conflict of
interest caused by “counsel work[ing] in the same office as trial counsel”; and counsel’s failure
to raise on appeal the claims that there were presentencing-report errors and that the State
reneged on the plea bargain as to the sentencing recommendation. (ECF No. 55, at 22-23, 40.)
Petitioner maintains his ineffective-assistance-of-appellate-counsel claims were wrongly
dismissed on the ground of lack of prejudice (based on his ability to raise trial-counsel

2

Under this issue and perhaps others, Petitioner cites violation of Utah state law as reason for altering or
amending the judgment here. (See, e.g., ECF No. 55, at 42.) But violation of state law is never a ground for habeas
relief. See 28 U.S.C.S. § 2254(a) (2022) (“[A] district court shall entertain an application for a writ of habeas corpus
in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” (Emphasis added.)). The Court therefore does
not further consider any arguments about violations of state law.

6

Case 2:18-cv-00320-DAK Document 67 Filed 06/01/22 PageID.1164 Page 7 of 13

ineffectiveness in his state-post-conviction petition with new counsel). (ECF Nos. 53, at 6 n.1;
55, at 40-42.)
Beyond that, this Court noted in its decision under review here that Petitioner “has not
even argued, let alone shown, that the state courts’ decision about ineffective appellate counsel-i.e., no prejudice existed--was contrary to or an unreasonable application of United States
Supreme Court precedent. The Court thus does not consider this argument further.” (ECF No. 53,
at 6 n.2.) Petitioner has not substantively attacked this reasoning for the denial of claims of
ineffective-assistance-of-appellate counsel. The Court’s denial of claims of ineffectiveassistance-of-appellate counsel thus stands, as Petitioner again shows no intervening change in
controlling law, new evidence previously unavailable, clear error or misapprehension by this
Court, or support for an argument of manifest injustice.
(9) Petitioner contends his discovery requests should have been granted and would have
revealed reasons to grant habeas relief. (ECF No. 55, at 44.) Specifically, this Court denied
Petitioner’s requests for (a) “waiver hearing transcripts, from “the hearing where competency
was decided,” which assertedly could have helped show trial counsel did not inquire enough
“into the doctor’s diagnosis which would provide a lack of intent defense”; (b) December 9,
2016 status-conference transcripts, in which state-post-conviction court “ruled that Thompson
could raise and argue any claim”; (c) September 9, 2013 summary-judgment-hearing transcript
in which State admits “State made a statement not agreed upon in the plea agreement”; and (d)
2017 evidentiary hearing transcripts showing defense counsel’s ineffectiveness. (ECF No. 10.)
Petitioner further asserts that he “filed and was denied discovery request” (for presenting “expert

7

Case 2:18-cv-00320-DAK Document 67 Filed 06/01/22 PageID.1165 Page 8 of 13

witness and exculpatory scientific evidence”--e.g. “which shows MRIs of healthy brain versus
brain after years of drug use”), which the Court “should have ordered.” (ECF No. 55, at 38-39.)
However, even if this Court had granted every one of these discovery requests, the
procedural-default doctrine (under which all but one of his issues were dismissed here) rendered
the discovery requests all moot in terms of moving any of Petitioner’s arguments toward validity
here. Accordingly, the Court’s denial of these discovery requests was proper, as Petitioner again
identifies no intervening change in controlling law, new evidence previously unavailable, clear
error or misapprehension by this Court, or support for an argument of manifest injustice.
The final four of Petitioner’s post-judgment challenges are apparently newly raised and
therefore fit more appropriately under the rubric of Rule 60(b); after all, Petitioner is not in a
position to attack--under Rule 59(e)--the Court’s treatment of these challenges in its dismissal
order, when these issues were never introduced before now. This means issues (10) through (13)
below are second or successive.
In issues (10) through (13), Petitioner asserts:
(10) Unconstitutionality of Utah’s plea-withdrawal statute, because it “does not account
for a breached contract,” resulted in judge imposing an unlawful sentence; “does not allow the
defendant appointed counsel for first right of appeal for a breached plea agreement”; and violates
the separation-of-powers doctrine. (ECF No. 55, at 7, 15, 23-24.)
(11) Unconstitutionality of “an effective appellate process” because of prejudicial delays.
(ECF No. 55, at 24; 45.) Here, Petitioner argues, “The inordinate and unjust delay in the state
court collateral proceedings has seriously undermined the integrity of the proceeding and is an
exceptional circumstance that this court may use to satisfy invoking its jurisdiction.” (Id. at 458

Case 2:18-cv-00320-DAK Document 67 Filed 06/01/22 PageID.1166 Page 9 of 13

46.) Under this section, Petitioner cites many cases to this general effect but does not specify
exactly how he was prejudiced by the length of time his case took in state court. (Id. at 46-47.)
Then, in a sentence in a footnote, he states abruptly, “The petitioner was prejudiced by the delay
because both counsel claimed the passage of time caused them to not remember during
questioning.” (ECF No. 55, at 47 n.3.) Still, this does not specify or speculate what counsel may
have forgotten that would have been so helpful to him that his very conviction and sentencing
should be reversed.
(12) The sentence was illegal under state statute regarding consecutive sentences and the
statement that “the aggregate maximum of all sentences imposed may not exceed 30 years
imprisonment.” (ECF No. 55, at 25.)
(13) Because his sentence is nearing completion, and because “he could not have formed
the mens rea to” commit the crime, Petitioner argues that “this court should grant [his] wishes
and modify judgment to the lesser included sexual battery charges for all three convictions.”
(ECF No. 55, at 49.)
SECOND-OR-SUCCESSIVE ANALYSIS
As Petitioner has already filed a habeas-corpus petition in this Court--in this case--in the
past and it was denied, Petitioner’s newly raised post-judgment issues identified above as (10)
through (13) qualify as second or successive. See 28 U.S.C.S. § 2244(a) (2022). Petitioner may
not file such a petition without authorization from the appropriate federal court of appeals. Id. §
2244(b)(3)(A) (“Before a second or successive application permitted by this section is filed in
the district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.”); see R.9, Rs. Governing § 2254 Cases;
9

Case 2:18-cv-00320-DAK Document 67 Filed 06/01/22 PageID.1167 Page 10 of 13

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (citing United States v. Nelson, 465 F.3d 1145,
1148 (10th Cir. 2006)) (“A district court does not have jurisdiction to address the merits of a
second or successive § 2255 or 28 U.S.C. § 2254 claim until [the Tenth Circuit] has granted the
required authorization.”).
Petitioner apparently did not obtain Tenth Circuit authorization to challenge any of the
issues in his post-judgment motion, effectively as a second-or-successive petition. This Court
therefore does not have jurisdiction to address their merits.
When a successive § 2254 petition is filed in a district court without the necessary
appellate court sanction, it may be transferred under 28 U.S.C. §1631 (2022) to the proper court.
Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997). However, all unauthorized
successive habeas petitions should not automatically be transferred to the Tenth Circuit. This
Court will only transfer the matter to the Tenth Circuit if it determines that it is in the interests of
justice to do so.
In deciding that it would not be in the interests of justice to transfer this petition to the
Tenth Circuit, this Court primarily considered that issues (10) through (13) would all be
procedurally barred if Petitioner tried to raise them at this late stage of litigation.
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) (2022); 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, Petitioner has never properly
10

Case 2:18-cv-00320-DAK Document 67 Filed 06/01/22 PageID.1168 Page 11 of 13

brought issues (10) through (13) before 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 in the trial
court, at trial, or on appeal; was raised or addressed in any previous
request for post-conviction 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) (2022); 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) (2022).
"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).

11

Case 2:18-cv-00320-DAK Document 67 Filed 06/01/22 PageID.1169 Page 12 of 13

Each of the issues (10) through (13) could have been raised on direct appeal or in earlier
post-conviction proceedings. Under the Utah law identified above then, they are therefore
ineligible for further consideration in the state courts and, consequently, in the federal courts.
Thomas, 218 F.3d at 1221. This is especially so when Petitioner has not identified an applicable
exception to the procedural bar’s operation.
Additionally, this Court also noted previously that the Court of Appeals will not authorize
the filing of a second or successive habeas petition in the district court unless the petitioner can
meet the standard prescribed by § 2244(b)(2). Under that standard, the petitioner must show “that
the claim relies on a new rule of constitutional law, made retroactive” or that “the factual
predicate for the claim could not have been discovered previously through the exercise of due
diligence” and that the facts “would be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder would have found the applicant guilty
of the underlying offense.” 28 U.S.C. § 2244(b)(2) (2022). Petitioner has not adequately
addressed any of these requirements.
It would not be in the interests of justice to transfer the petition to the Tenth Circuit.
Petitioner has not stated any appropriate legal basis for being allowed to proceed with this
successive petition.

12

Case 2:18-cv-00320-DAK Document 67 Filed 06/01/22 PageID.1170 Page 13 of 13

ORDER
IT IS ORDERED that:
(1) Petitioner’s motion for relief from the judgment is DENIED. (ECF No. 55.)
(2) Petitioner’s newly raised issues in his motion for relief from judgment are deemed the
equivalent of a second-or-successive petition, but are not qualified to be transferred to
the Tenth Circuit.
(3) A certificate of appealability is DENIED.
(4) This action remains closed.
DATED this 1st day of June, 2022.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

13