Hutchings v. Powell et al

Filing 37

MEMORANDUM DECISION & Order: 1. Pursuant to the court's order to show cause (ECF No. 32), Petitioner's first cause of action is DISMISSED WITH PREJUDICE because it is untimely. 2. Granting in part and denying in par t Respondent's 18 Motion to Dismiss. Respondent's motion to dismiss Petitioner's first (ex post facto) cause of action is DENIED as moot. Respondents' motion to dismiss Petitioner's second (ineffective assistance of counse l), third (due process) and fourth (due process) causes of action is GRANTED. 3. Denying 27 Petitioner's Motion for Summary Judgment. 4. Denying 30 Petitioner's Motion to Dismiss Respondent's Motion to Dismiss. 5. The Petition for habeas corpus 5 is DENIED and the action is DISMISSED WITHOUT PREJUDICE 6. A certificate of appealability is DENIED. This action is CLOSED. Signed by Judge Ted Stewart on 03/26/2024. (kpf)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
LARRY HUTCHINGS,
Petitioner,
v.

MEMORANDUM DECISION AND
ORDER
Case No. 2:22-cv-505-TS
District Judge Ted Stewart

ROBERT POWELL, et al.,
Respondents.

In this federal habeas corpus action, pro se inmate Larry Hutchings ("Petitioner") attacks
his incarceration by the state of Utah for being violative of his Constitutional rights. Petitioner's
claims are lodged under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
See, Petition, at 1 (ECF No. 5.) see also, 28 U.S.C.S. §2254 (2024). Petitioner's claims are
subject to a one-year period of limitations. See, 28 U.S.C.S. § 2244(d)(1) (2024).
Petitioner asserts four grounds for relief in his AEDPA petition (the "Petition").
Petitioner's first ground for relief alleges that the terms of his parole violate Constitutional
protections from application of ex post facto modification of the punishment associated with his
crime at the time it was committed. (ECF No. 5, at 6-7.) Petitioner's second ground argues that
he was denied adequate representation of counsel because his counsel refused to advance
Petitioner's Constitutional rights and that Petitioner was denied counsel in his post-petition
proceedings. Id. at 9. Petitioner's third ground for relief claims that he was denied Due Process
because he has been imprisoned since December 1, 2019 without charges filed against him and
without a final parole revocation hearing. Id. at 11. Petitioner's fourth grounds alleged that he
was denied due process because he was denied a timely parole revocation hearing. Id. at 11, 13.

1

Respondent moves to dismiss the claims on the basis that his second, third and fourth
claims are procedurally defaulted because Petitioner failed to exhaust his state remedies. (ECF
No. 18, at 5-7.) Respondent moves to dismiss Petitioner's first claim on the basis that the claim
was previously raised but unexhausted. Id. at 7-10. In addition, the court ordered Petitioner to
show cause why the first ground for relief should not be dismissed as untimely. (ECF No. 32.)
Having reviewed Petitioner's filings, the court finds that Petitioner's ex post facto claim is
untimely, the ineffective assistance of counsel claim is vague and conclusory and the due process
claims are unexhausted. For those reasons, the Petition for habeas relief is dismissed without
prejudice.
I. RELEVANT TIMELINE
• 7/7/92

Petitioner pled guilty to two counts of sexual abuse of a child, both second degree
felonies (the "1992 Convictions"). (ECF No. 19-16, at 3.)

• 9/4/07

Petitioner convicted of aggravated assault, a second degree felony, and criminal
mischief, a misdemeanor (the "2007 Convictions"), both acts having been
committed while Petitioner was on parole for the 1992 Convictions. Minutes (ECF
No. 8-4, at 1.)

• 10/22/07

Petitioner sentenced to 1-15 year indeterminate term for the 2007 Convictions, to
run consecutively to his reincarceration for the 1992 Convictions. Id. at 1- 2.

• 11/13/09

Utah Court of Appeals affirmed the 2007 Convictions. State v. Hutchings, 2009
Utah App. LEXIS 342, *5.

• 10/21/10

Petitioner's sentence for the 1992 Convictions expired, and his sentence for the
2007 Convictions commenced. (ECF No. 19-16, at 3.)

• 8/10/12

Utah Supreme Court affirms (on alternate grounds) the 2007 Convictions. State v.
Hutchings, 2012 UT 50, at ¶ 30, 285 P.3d 1183.

• 11/8/12

Judgment for the 2007 Convictions becomes final. See U.S.C.S. Supreme Ct R
13(1) ("Unless otherwise provided by law, a petition for a writ of certiorari to
review a judgment in any case, civil or criminal, entered by a state court of last
resort or a United States court of appeals (including the United States Court of
Appeals for the Armed Forces) is timely when it is filed with the Clerk of this Court
within 90 days after entry of the judgment.")
2

• 11/27/12

Petitioner offered "Standard Parole" for the 2007 Convictions to commence on
January, 1, 2013. The Utah Board of Pardons and Parole (the "Board") calculates
Petitioner's sentence to expire on April 4, 2024. (ECF No. 8-8.)

• 1/8/13

Petitioner released on conditional parole for the 2007 Convictions.

• 1/9/13

According to Petitioner, his parole agent verbally assured him that his parole for the
2007 Convictions would be governed by the 2007 version of the Utah parole
statute, meaning that his parole would expire after three years without a violation.
(ECF No. 34-8, at 2); see U.C.A. § 76-3-202(1)(b) (2007).

• 1/8/16

Petitioner's term of parole would have expired under the 2007 version of the Utah
parole statute. See U.C.A. § 76-3-202(1)(b) (2007).

• 10/31/16

According to Petitioner, sometime during the month of October 2016, he was
notified by representatives of the Board that they would retroactively apply the
2008 version of the Utah parole statue, meaning that he would remain on parole
through the maximum term of his sentence regardless of parole violations. See
U.C.A. § 76-3-202(1)(b)(2008).
Petitioner filed a letter with the Board dated October 31, 2016 arguing that the 2007
version of the parole statute should control because he was convicted and sentenced
prior to the amendment. (ECF No. 34-4.)

• 11/7/16

The Board issued a warrant for Petitioner's arrest for two counts of failure to
comply with the terms of parole for the 2007 Convictions. (ECF No. 18-6.)

• 12/14/16

The Board held a parole revocation hearing. Petitioner was represented by counsel
and pled no contest to two parole violations. Counsel for Petitioner asserted the
claim that his parole had statutorily terminated under the 2007 version of the parole
statute because application of the 2008 version was an ex post facto violation. (ECF
No. 8-5.)

• 12/15/16

The Board revoked Petitioner's parole, rejecting Petitioner's ex post facto claim and
triggering the 365-day AEDPA period of limitations for Petitioner's ex post facto
claim. See ECF No. 19-16; U.C.A. §77-27-5(3)(a)(i); 28 U.S.C.S. § 2244(d)(1)
(2024).

• 3/16/17

Petitioner filed Petition for Extraordinary Relief asserting his ex post facto claim
that his parole for the 2007 Convictions should have terminated automatically per
the 2007 version of the parole statute and tolling the AEDPA period of limitations
after 90 days. (ECF No. 20-1.)

•7/17/17

Petitioner's parole reinstated.

3

• 8/25/17

Utah District Court dismissed Petition for Extraordinary Relief. Id.

• 11/27/17

Utah Court of Appeals affirmed dismissal of Petition for Extraordinary Relief.
(ECF No. 19-17.)

• 12/27/17

Judgment on the Petition for Extraordinary Relief became final after the period to
petition for certiorari in the Utah Supreme Court expired. See Utah R. App. P. 48(a)
("A petition for a writ of certiorari must be filed with the Supreme Court clerk
within 30 days after the Court of Appeals’ final decision is issued.")

• 12/28/17

The ADEDPA period of limitation for the claims presented in the Petition for
Extraordinary Relief resumed with 275 days remaining.

• 9/3/18

ADEDPA period of limitation for the claims presented in the Petition for
Extraordinary Relief expired.

• 12/3/19

The Board issued a Warrant for Petitioner's arrest pursuant to evidence obtained
during a parole search. (ECF No. 8-33.)

• 6/9/20

Petitioner charged with two counts of failure to register in Utah Third District Court
Case No. 201906587 (the 2020 Charges). (ECF No. 18-1.)

• 6/12/20

Board held a parole violation hearing. Petitioner denied all allegations. Board found
probable cause to hold Petitioner in custody due to the pending 2020 Charges and
continued Petitioner's parole violation review until September 2020. (ECF No. 836.)

• 1/25/21

Petitioner, represented by counsel, pled not guilty at his arraignment on the 2020
Charges. State v. Hutchings, No. 201906587, docket no. 34 (Utah Dist. Ct. filed
Jan. 25, 2021.)

• 5/5/21

Petitioner, although represented by counsel, filed a pro se motion to dismiss the
2020 Charges asserting his ex post facto claim. Id. at Nos. 41-46.

• 6/1/21

Board continued Petitioner's parole revocation hearing until July 2021 pending
adjudication of 2020 Charges. (ECF No. 8-37.)

• 8/24/21

Trial judge denied Petitioner's pro se motion to dismiss the 2020 Charges. ECF No.
18-2, at 1; State v. Hutchings, No. 201906587, docket no. 60 (Utah Dist. Ct. filed
Aug. 24, 2021.)

• 9/23/21

Petitioner filed pro se notice of appeal seeking relief from denial of the motion to
dismiss the 2020 Charges. Id. at docket no. 64.

• 10/28/21

Petitioner filed a petition for interlocutory appeal directly to the Utah Supreme
Court seeking relief from the district court's denial of his motion to dismiss the
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2020 Charges (prior to the Court of Appeals' decision on Petitioner's pending
motion in that court seeking the same relief). See ECF No. 19-1; ECF No. 18-2.
• 11/12/21

Utah Court of Appeals summarily dismissed Petitioner's appeal of the motion to
dismiss the 2020 Charges because the motion did not challenge a final appealable
order. (ECF No. 18-2.)

• 12/9/21

Utah Court of Appeals denied Petitioner's motion for appointment of counsel in the
Petition for Extraordinary Relief for the 2007 convictions because there is no right
to counsel in a civil case. (ECF No. 8-31 citing Schwarz v. Duncan, 2000 UT App
172, para. 4 (mem.) (per curiam).)
Board continued Petitioner's parole revocation hearing until January 2022 pending
adjudication of the 2020 Charges. (ECF No. 8-38.)

• 12/16/21

Utah Supreme Court affirmed dismissal of Petition for Extraordinary Relief.
Hutchings v. Utah, No. 20210813, (Utah Sup. Ct. Dec. 16, 2021) (docket).

• 2/14/22

Petitioner filed a petition for certiorari asking the Utah Supreme Court to review
both the denial of his motion to dismiss the 2020 Charges and the dismissal of his
2017 Petition for Extraordinary Relief for the 2007 Convictions. (ECF No. 19-2.)

• 3/18/22

Utah Supreme Court denied a writ of certiorari for the motion to dismiss the 2020
Charges. The caption of the denial contains only the case number for the 2020
Charges, but not the Petition for Extraordinary Relief. (ECF No. 18-3.)
The Board continued Petitioner's parole revocation hearing until July 2022 pending
adjudication of 2020 Charges. (ECF No. 8-40.) The Board ordered Petitioner to
notify the Board when 2020 charges are adjudicated. Id.

• 8/5/22

Petitioner filed his AEDPA Petition. (ECF No. 5.)

• 3/24/23

Respondent filed motion to dismiss the Petition. (ECF No. 18.)

• 6/12/23

The Utah District Court dismissed the 2020 Charges with prejudice on the State's
motion to withdraw in the interests of justice due to time served.) State v.
Hutchings, No. 201906587, docket no. 228.

• 2/1/24

This court ordered Petitioner to show cause why his first ground for relief should
not be dismissed as untimely. (ECF No. 32.)
II. BACKGROUND

On July 7, 1992, Petitioner pled guilty to the 1992 Convictions, two counts of sexual
abuse of a child, both second degree felonies. For each count, Petitioner was sentenced to an
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indeterminate term of one to fifteen years in the Utah State Prison, to run concurrently. On April
6, 2006, while Petitioner was released on parole for the 1992 Convictions, Petitioner committed
an aggravated assault and criminal mischief. Utah v. Hutchings, No. 6190246 (Utah 3rd Dist.
2007) (ECF No. 18-5, at 17-18.) Petitioner was sentenced to an indeterminate term of one to
fifteen years, to run consecutively to the time he was serving for the 1992 Convictions. Id. at 18.
At the time Petitioner committed his crimes in 2006, the Utah parole statute provided that parole
from a sentence for an indeterminate term would automatically terminate after three years
without violation:
(1) Except as otherwise provided in this section, every person
committed to the state prison to serve an indeterminate term and
later released on parole shall, upon completion of three years on
parole outside of confinement and without violation, be terminated
from his sentence unless the person is earlier terminated by the
Board of Pardons and Parole.
Ruling and Order Dismissing Petitioner's PCRA petition (ECF No. 18-8, quoting U.C.A. § 76-3202 (2007); see also ECF No. 8-12. However, in 2008, after Petitioner's sentencing, but prior to
being granted parole, the Utah legislature amended the parole statute, requiring persons
convicted of certain crimes to serve parole for the duration of their maximum sentence regardless
of whether they committed any violations:
(1)(b) Every person committed to the state prison to serv an
indeterminate term and later released on parole on or after July 1,
2008, and who was convicted of any felony offense under Title 76,
Chapter 5, Offenses Against the Person… shall complete a term of
parole that extends through the expiration of the person's maximum
sentence, unless the parole is earlier terminated by the Board of
Pardons and Parole.
Id. at 6, quoting U.C.A. §76-3-202 (2008).
On November 27, 2012 the Board granted Petitioner parole, to commence on January 8,
2013. (ECF No. 34-8.) The conditions of parole listed on the parole rehearing minutes included
6

"Standard Parole," "Sex Offender A" and payment of restitution, among other things. Id. The
Board calculated Petitioner's sentence to expire on April 4, 2024. Id. Petitioner claims that he
was given repeated verbal assurances that the terms of his parole would be governed by the 2007
version of the parole statute, meaning that his parole would be terminated after three years
without violation. (ECF No. 34-8, at 2.) Petitioner also claims that in October 2016 he sought
clarification of his parole status and was told that the Board then understood his parole to be
governed by the 2008 version of the parole statute, meaning that he would remain on parole for
the duration of his maximum sentence, and that he had violated his parole by failing to comply
with his registration requirements. Id. at 4-5. Petitioner supports these claims with a letter to the
Board dated October 31, 2016 memorializing the alleged October conversation and asserting his
position that application of the 2008 parole statute to his 2007 conviction was an ex post facto
violation. (ECF No. 34-4, at 2-3.)
On November 7, 2016, the Board issued a warrant for Petitioner's arrest for failure to
comply with the terms of parole. (ECF No. 8-10.) Petitioner was arrested on November 16, 2016.
Id.
After his arrest and reincarceration, Petitioner filed a petition for extraordinary relief (the
"Petition for Extraordinary Relief") arguing that 1) the Board failed to act in a statutory manner
when they failed to terminate his parole as required by the 2007 version of the parole statute; 2)
the Board abused its discretion by extending parole past its statutory termination; 3) The Board
abused its discretion by issuing the warrant in November 2016 and revoking parole after it had
expired by operation of law; 4) the Warden acted without jurisdiction by requesting that the
Board issue a warrant after the statutory termination of his parole; and 5) the Board acted outside
its jurisdiction in amending the amount of restitution due under the parole agreement outside the

7

one-year statutory limit. (ECF No. 18-8, at 4-5.) Petitioner later amended his claim to add two
more grounds for relief: 6) the Board exceeded its jurisdiction by imposing "special conditions of
parole beyond that set by statute of law;" and 7) The Board exceeded their statutory authority "by
lengthening his term of incarceration by an indeterminate amount of time." Id. at 5. Petitioner's
parole was reinstated in July 2017. The District Court rejected Petitioner's claims and the Utah
Court of Appeals affirmed. (ECF No. 18-9.) Petitioner neglected to file a timely petition for
certiorari review to the Utah Supreme Court. See Utah R. App. P. 48(a) ("A petition for a writ of
certiorari must be filed with the Supreme Court clerk within 30 days after the Court of Appeals’
final decision is issued.")
On December 1, 2019, the Board conducted a parole search and discovered evidence of
multiple parole violations. State v. Hutchings, No. 201906587, docket no. 1, at 2 (filed June 9,
2020.) On June 9, 2020, Petitioner was charged with two third degree felony counts of failure to
register as a sex offender in violation of U.C.A. §77-41-107(1)(a) (the 2020 Charges). (ECF
No. 18-1.) Petitioner moved to dismiss the charges, based on his argument that his requirement
to register had expired with his parole under the 2007 version of the parole statute. The motion to
dismiss was denied on August 24, 2021. (ECF No. 18-2, at 1.)
Petitioner appealed. State v. Hutchings, No. 201906587, docket no. 64 (filed Sept. 23,
2021.) However, before the Court of Appeals had rendered a decision on the appeal, Petitioner
filed a "Petition for interlocutory Appeal And Or Writ for Extraordinary Relief" [sic] directly to
the Utah Supreme Court. (ECF No. 19-1.) On November 12, 2021, the Utah Court of Appeals
dismissed without prejudice Petitioner's appeal of the denial of his motion to dismiss because
Petitioner still had claims pending before the trial court. (ECF No. 18-2, at 1-2.) The Utah
Supreme Court denied the petition for interlocutory appeal on December 16, 2021. Hutchings v.

8

Utah, No. 20210813, (Utah Sup. Ct. Dec. 16, 2021) (docket).
On February 14, 2022, Petitioner filed a petition for certiorari to the Utah Supreme Court,
the caption for which indicated two cases: 20210813-CA (pertaining to the motion to dismiss the
2020 Charges) and 20170777-CA (pertaining to the 2017 Petition for Extraordinary Relief.)
(ECF No. 19-2.) The petition for certiorari presented four questions for review: 1) Did the Utah
Court of Appeals commit plain error by reviewing his claims in the 2020 Charges under the
rubric of civil law? (id. at 21); 2) In both the case related to the Petition for Extraordinary Relief,
and the case related to the 2020 Charges, did the Board and the Utah courts deny petitioner's
Constitutional protections against ex post facto laws by applying the 2008 version of the parole
statute to his 2007 conviction? (id. at 21-22); 3) In both the case related to the Petition for
Extraordinary Relief, and the case related to the 2020 Charges, did the Utah courts violate
petitioner's Constitutional right to counsel? (id. at 22); and 4) Did the Board and the Third
District Court deny petitioner's right to due process by failing to provide a final parole revocation
hearing within 777 days after reincarceration and failing to hold an arraignment within 203 days
of incarceration? (Id. at 23.) By the time Petitioner filed the petition for certiorari, the period to
obtain review of the 2017 Petition for Extraordinary Relief had already expired more than four
years prior. See ECF No. 19-17; Utah R. App. P. 48(a) ("A petition for a writ of certiorari must
be filed with the Supreme Court clerk within 30 days after the Court of Appeals’ final decision is
issued.") On March 18, 2022, the Utah Supreme Court denied certiorari in the case related to the
2020 Charges without mention of the case numbers for the 2017 Petition for Extraordinary
Relief. (ECF No. 18-3.)
On or around August 5, 2022, Petitioner filed the Petition seeking federal relief from his
Utah convictions under the AEDPA. See 28 U.S.C.S. § 2254 (2024). Petitioner asserted four

9

grounds for relief 1) Did application of the Utah parole statue, as amended after his sentencing,
violate Constitutional protections against application of ex post facto laws? (ECF No. 5, at 6-7);
2) Did appointed counsel provide Constitutionally ineffective assistance by failing to assert
Petitioner's Constitutional rights? (Id. at 9); 3) Was Petitioner denied Due Process because he
was held without charges between December 1, 2019 and June 22, 2020? (Id. at 11); and 4) Was
Petitioner denied Due Process because he was held without a final parole revocation hearing
since December 1, 2019? Id. at 13.
III. PETITIONER'S EX POST FACTO CLAIM IS UNTIMELY
Federal statute sets a one-year period of limitation to file a habeas corpus petition. 28
U.S.C.S. § 2244(d)(1) (2024). The period begins to run from "the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for seeking such
review." U.S.C.S. § 2244(d)(1)(A) (2024). Alternatively, the period runs from "the date on which
the factual predicate of the claim or claims presented could have been discovered through the
exercise of due diligence." 28 U.S.C.S. § 2244(d)(1)(D) (2024). In this context, the Tenth Circuit
Court of Appeals has defined due diligence as "an 'objective standard' that refers to when a
plaintiff 'could have' discovered the pertinent facts, not when [he] actually discovered them."
Madrid v. Wilson, 590 F. App'x 773, 776 (10th Cir. 2014) (quoting United States v. Denny, 694
F.3.d 1185, 1189 (10th Cir. 2012)). Under Utah law, a decision by the Board regarding "pardon,
parole, commutation, or termination of an offender’s sentence" is final and not subject to judicial
review. U.C.A. §77-27-5(3)(a)(i).
Petitioner's pro se pleadings are entitled to liberal construction. See, Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed
pro se is to be liberally construed.") (internal quotations omitted) (internal citations omitted.)

10

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) ("[I]f the court can reasonably read the
pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the
plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.")
"Nevertheless, the court should not assume the role of advocate, and should dismiss claims
which are supported only by vague and conclusory allegations." Northington v. Jackson, 973
F.2d 1518, 1521 (10th Cir. 1992).
A. Statutory Tolling
The limitation period "is tolled or suspended during the pendency of a state application
for post-conviction relief properly filed during the limitations period." May v. Workman, 339
F.3d 1236, 1237 (10th Cir. 2003) (citing 28 U.S.C.S. § 2244(d)(1)). A "state postconviction
application 'remains pending' 'until the application has achieved final resolution through the
State's postconviction procedures.'" Lawrence v. Florida, 549 U.S. 327, 332 (2007) (quoting
Carey v. Saffold, 536 U.S. 214, 220 (2002)); see also Fisher v. Raemisch, 762 F.3d 1030, 1032
(10th Cir. 2014). Once the post-conviction case ends in state court, the one-year limitation period
begins to run again. See Holland v. Florida, 560 U.S. 631, 638 (2010).
Tolling, however, does not revive the limitations period—i.e., restart the clock at zero. It
serves only to suspend a clock that has not already run. See id.; Fisher v. Gibson, 262 F.3d 1135,
1142-43 (10th Cir. 2001); see also Laws v. LaMarque, 351 F.3d 919, 922 (9th Cir. 2003). Thus,
any time between when a petitioner's direct appeal becomes final and when he files his petition
for state post-conviction relief is counted in the limitations period. And, any time between when
the state post-conviction action concludes and before a petitioner's habeas petition is filed also
counts toward the limitations period because state-collateral review only pauses the one-year

11

period; it does not delay its start. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)
("[P]roper calculation of Section 2244(d)(2)'s tolling provision excludes time during which
properly filed state relief applications are pending but does not reset the date from which the oneyear statute of limitations begins to run.").
In other words, time elapsing after a petitioner's conviction becomes final on direct
review, but before a state post-conviction petition is filed, and time after final disposition of the
petitioner's post-conviction proceedings, but before the filing of the federal habeas petition,
aggregate to count against the one-year-limitation period. See Sutton v. Cain, 722 F.3d 312, 316
n.6 (5th Cir. 2013) ("To calculate when the limitations period has run, we aggregate the time
between (i) the date the petitioner's conviction became 'final' and the date the petitioner filed his
state [post-conviction] application; and (ii) the date the state [post-conviction] process concluded
and the date the petitioner filed his federal habeas petition.").
B. Equitable Tolling
Equitable tolling may also suspend the statutory period. "Equitable tolling is 'a judiciallycrafted stopping of the clock' that" is applied "'only in rare and exceptional circumstances.'"
United States v. Barger, 784 F. App'x 605, 607 (10th Cir. 2019) (unpublished) (quoting Fisher,
262 F.3d at 1143); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)). Equitable tolling
"will not be available in most cases, as extensions of time will only be granted if 'extraordinary
circumstances' beyond a prisoner's control make it impossible to file a petition on time."
Calderon v. U.S. Dist. Ct., 128 F.3d 1283, 1288 (9th Cir. 1997) (citation omitted). A petitioner is
only entitled to equitable tolling if he shows "'(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way' and prevented timely filing."
Holland v. Florida, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

12

Examples warranting equitable tolling are "'when an adversary's conduct . . . prevents a prisoner
from timely filing, or when a prisoner actively pursues judicial remedies but files a defective
pleading during the statutory period.'" Stanley v. McKune, 133 F. App'x 479, 480 (10th Cir.
2005) (quoting Gibson, 232 F.3d at 808 (citation omitted)).
Meanwhile, "equitable exception" refers to "actual innocence" that "'serves as a gateway
through which a petitioner may pass' . . . to overcome . . . his failure to abide by the federal
statute of limitations in order to have his . . . claim[s] heard on the merits." Fontenot v. Crow, 4
F.4th 982, 1030 (10th Cir. 2021) (quoting McQuiggin v. Perkins, 569 U.S. 383, 386 (2013)).
On both grounds, Petitioner "has the burden" of showing equitable tolling or an equitable
exception applies. Lovato v. Suthers, 42 F. App'x 400, 402 (10th Cir. 2002) (unpublished).
C. Analysis
This court ordered Petitioner to show cause why his first ground for relief should not be
dismissed as untimely. (ECF No. 32.) Petitioner declined to petition the Utah Supreme Court to
review the denial of his ex post facto claims in 2017. Meanwhile, Petitioner's AEDPA period of
limitations ran and expired. Petitioner fails to explain why he did not present the claims in his
Petition for Extraordinary Relief to the Utah Supreme Court until February 14, 2022, more than
four years after the period to seek review had lapsed. Therefore Petitioner fails to show cause
why his first ground for relief should not be dismissed.
Petitioner argues that his first ground for relief should not be dismissed because he was
not told that his parole would be subject to the amended parole statue until October 2016. See
ECF No. 34-8, at 4. It is true that the documentation of Petitioner's 2012 parole agreement does
not state explicitly which version of the parole statute would control, nor whether he would
remain on parole through the duration of his maximum sentence. See ECF Nos. 8-8; 34-2. On

13

one hand, it seems unlikely that in 2012, the Board would describe his parole simply as
"Standard Parole" without additional clarification if the terms were to be governed by a statute
that had been amended more than four years prior. See ECF No. 8-8. Furthermore, in Petitioner's
revocation hearing on December 14, 2016, neither Petitioner, nor his attorney claimed that he
had been explicitly told that the 2007 statute would apply. 1 (ECF No. 8-5.) On the other hand,
Petitioner claims that he received multiple verbal assurances prior to October 2016 that the terms
of his parole were governed by the 2007 version of the parole statute. (ECF No. 34-8, at 2-4.)
Petitioner arguably behaved consistent with the understanding that his parole expired in January
2016. Petitioner complied with his registration requirements until after January 2016, when he
believed his parole terminated by operation of law. Likewise, Petitioner's letter to the Board in
October 2016 to confirm that he only recently had been informed that the Board considered his
Parole to be governed by the parole statute as amended in 2008, and asserting his belief that it
should be governed by the version of the statute in effect at the time of his conviction and
sentencing is plausibly consistent with his understanding that the 2007 version had been
operable. See ECF No. 34-4. It is possible that Petitioner believed that his parole would terminate
after three years without violation simply because he was unaware of the 2008 amendment to the
parole statue. However, it is also possible that at some point he was told that the 2007 statute
would govern. Therefore, for purposes of this analysis, the court will accept as true that
Petitioner could not have discovered the factual predicate to his first ground for relief until

Immediately after the hearing officer told Petitioner that someone in the Utah Attorney General's office would
review his claim that his parole should be governed by the 2007 version of the parole statute, Petitioner interjected
"Well, and it was my understanding when I seen Ms. Micklos at the Board in 2013, that the stipulation was gonna be
as read, sex offender treatment evaluation completed within thirty days of release." (ECF No. 8-5 at 7-8.) If it were
true that in 2012-2013 multiple parole officers had told Petitioner that that his parole would be governed by the 2007
version of the statute, that would have been a natural opportunity for Petitioner to remind the Board of that fact
rather than changing the subject to his understanding of the sex offender conditions.
1

14

October 2016, the time at which Petitioner claims the Board first notified him that his parole had
not expired. See ECF No. 34-4.
Nevertheless, even assuming that the AEDPA period of limitations on Petitioner's first
cause of action did not commence until after he was rearrested in 2016, Petitioner cannot
establish that his first ground for relief is timely. A period of limitations for an AEDPA claim
begins to run from "the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review." U.S.C.S. § 2244(d)(1)(A) (2024).
Alternatively, the period runs from "the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise of due diligence." 28 U.S.C.S.
§ 2244(d)(1)(D) (2024). On December 14, 2016, the Board held a revocation hearing. (ECF No.
8-5.) Petitioner's attorney argued that application of the 2008 version of the statute violated ex
post facto protections. The Board rendered a decision on December 15, 2016, revoking
Petitioner's parole and implicitly rejecting Petitioner's claim that his parole was governed by the
2007 version of the statute. (ECF No. 19-16, at 5; see also ECF No. 8-5, at 4-5.) The Board's
decision was a final judgment, triggering the AEDPA period of limitations with regard to
Petitioner's claim that the terms of his parole should be governed by the 2007 version of the
parole statute. See, 28 U.S.C.S. § 2244(d)(1) (2024); U.C.A. §77-27-5(3)(a)(i) (A decision
regarding "pardon, parole, commutation, or termination of an offender’s sentence" by the Board
is final and not subject to judicial review.)
Ninety days later, on March 16, 2017, Petitioner tolled the AEDPA period of limitations
when he filed a Petition for Extraordinary Relief. See ECF No. 19-16; 28 U.S.C.S. § 2244(d)(1).
Petitioner's AEDPA period of limitations remained tolled while his Petition for Extraordinary
Relief was pending. See May v. Workman, 339 F.3d at 1237 (The limitation period "is tolled or

15

suspended during the pendency of a state application for post-conviction relief properly filed
during the limitations period.") The district court dismissed the Petition for Extraordinary Relief
on August 25, 2017. (ECF No. 19-16.) The Utah Court of Appeals affirmed the dismissal on
November 27, 2017. (ECF No. 19-17.) Petitioner then had thirty days to petition the Utah
Supreme Court for certiorari. See Utah R. App. P. 48(a) ("A petition for a writ of certiorari must
be filed with the Supreme Court clerk within 30 days after the Court of Appeals’ final decision is
issued.") Petitioner failed to file a timely petition for certiorari. 2
Therefore, the remaining 275 days in Petitioner's AEDPA period of limitations resumed
on December 28, 2017. See, 28 U.S.C.S. § 2244(d)(1) (2024). The AEDPA period of limitations
then expired on or around Monday, October 1, 2018. Petitioner filed his Petition on August 5,
2022, nearly four years later. Petitioner's first ground for relief, that the application of the 2008
version of the parole statute to a crime committed in 2006 violates ex post facto protections, is
untimely.
Petitioner fails to establish his eligibility for an equitable exception. See Lovato v.
Suthers, 42 F. App'x at 402; Fontenot v. Crow, 4 F.4th at 1030 ("equitable exception" refers to
"actual innocence" that "'serves as a gateway through which a petitioner may pass' . . . to
overcome . . . his failure to abide by the federal statute of limitations in order to have his . . .
claim[s] heard on the merits.") Petitioner argues that he is legally innocent of the 2016 probation
violations because his term of probation should have expired in January 2016. Petitioner
presented this argument at his revocation hearing on December 14, 2016, again to the district

Petitioner eventually included the case numbers for his Petition for Extraordinary Relief in the caption for his
petition for certiorari for the 2020 Charges on February 14, 2022. (ECF No. 19-2.) However, by that time the period
of limitations for both a petition for certiorari for the Petition for Extraordinary Relief and an AEDPA petition
asserting the claims from the Petition for Extraordinary Relief had long since expired. The Utah Supreme Court
rejected the petition for certiorari for the 2020 Charges without mention of the Petition for Extraordinary Relief or
its case numbers. (ECF No. 18-3.)
2

16

court in 2017 and then to the Utah Court of Appeals. See ECF Nos. 8-5, at 3;19-16 at 5; 19-17,
at 2. Each time, his claim was rejected. Id. Petitioner could have filed a timely petition for
certiorari to the Utah Supreme Court. He did not. Instead, Petitioner accepted the decision of the
Utah Court of Appeals and remained subject to the terms of his probation under the 2008 version
of the parole statute. Therefore, Petitioner cannot claim actual innocence of failure to comply
with the terms of his parole in 2016. Petitioner's first ground for relief is not entitled to an
equitable exception from the AEDPA period of limitations.
In light of the foregoing, Petitioner's first ground for relief is untimely.
IV. PETITIONER'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ARE
VAGUE AND CONCLUSORY
Petitioner's second ground for relief argues that he was denied adequate representation of
counsel because his counsel refused to advance Petitioner's Constitutional rights and that he was
denied counsel. (ECF No. 5, at 9.) Respondents move to dismiss Petitioner's second cause of action
without prejudice on the grounds that Petitioner failed to exhaust his state remedies. ECF No. 18,
at 5. The court declines to reach Respondent's motion to dismiss Petitioner's second cause of action
for failure to exhaust his state remedies because the court finds that the claims are vague and
conclusory.
To establish ineffective assistance of counsel, a petitioner must show (1) deficient
performance by counsel, measured by a standard of "reasonableness under prevailing
professional norms;" and, (2) prejudice to the defense caused by that deficient performance.
Strickland, 466 U.S. at 687-88. The prejudice element requires showing errors were so grave as
to rob the petitioner of a fair proceeding, with reliable, just results. Id. Assistance of counsel can
only be constitutionally defective where there is a constitutional right to counsel. Davila v.

17

Davis, 582 U.S. 521, 529 (2017). It is unclear whether Petitioner advances ineffective assistance
of counsel as a standalone constitutional violation, or as a gateway through which he hopes to
avoid procedural default of his primary argument pertaining to ex post facto application of law.
Petitioner's pro se pleadings are entitled to liberal construction. See, Haines v. Kerner,
404 U.S. at 520-21; Hall v. Bellmon, 935 F.2d at 1110 ("[I]f the court can reasonably read the
pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the
plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.") However,
"the court should not assume the role of advocate, and should dismiss claims which are
supported only by vague and conclusory allegations." See Northington v. Jackson, 973 F.2d at
1521. Furthermore, Petitioner must comply with the Rules of Civil Procedure and other
applicable rules, regardless of his pro se status. See Ogden v. San Juan County, 32 F.3d 452, 455
(10th Cir. 1994).
The vast majority of Petitioner's briefing and exhibits pertains to his first ground for
relief. Petitioner's remaining claims are only addressed in passing. The Petition describes his
second cause of action in the following terms:
Denial of right to counsel and ineffective assistance of counsel.
Appointed counsel [for the 2020 Charges] (Isaac McDougall)
refused to support petitioner's assertion of constitutional protections.
And Judge V. Trease [presiding over the 2020 Charges] as well as
court appeals [sic] and supreme courts all refused the
defendant/petitioner counsel.
ECF No. 5, at 9; see also ECF No. 18-4, at 4. Petitioner indicated with a check mark that he had
appealed the judgment of conviction for this issue, but supplied no other responses to the
prompts in the petition form pertaining to this claim. Id. at 9-11. Petitioner's memorandum in

18

support of the Petition expanded the scope of his second ground to include the trial judge in his
Petition for Extraordinary Relief:
Did the Utah Third District Court, both the Laura Scott and V.
Trease Courts, Utah Court of Appeals and the Utah Supreme Court
violate the petitioners constitutionally protected right to assistance
of counsel in Criminal Proceedings that had and continue to have
substantial affect upon the Substantial Constitutionally protected
rights of the petitioner? As Well as the ineffective assistance of
counsel in raising theses claims in the Utah Third district court, The
Utah Court of Appeals and the Utah Supreme Court and now this
court?
ECF No. 8, at 2 (all errors in original). The memorandum later restates the issue, but adds only the
following argument:
The Third argument is one over representation or Ineffective
assistance of Counsel; another exemption to preservation exists
when defense counsels failure to effectively raise an issue is
prejudicial to the outcome." State V. Johnson, 416 P.3d. 443 (Ut.
2017), Combined with the Utah State Prison Contract Attorney's
refusal to supply the petitioner herein with copies of statute of law.
Id. at 20 (errors in original).
Petitioner's claims, liberally construed, potentially assert three possible claims of
ineffective assistance of counsel. First, Petitioner seems to argue that the courts reviewing his
claims for post-conviction relief violated his Constitutional rights by declining to appoint counsel
on his behalf. However, Petitioner fails to establish a that he had a constitutional right to counsel
in his collateral attacks to his detention, and thus fails to establish constitutional violation for his
lack of representation. Although the outcomes of Petitioner's collateral attacks on his detention
determine Petitioner's liberty of Petitioner's detention, the cases are civil cases for which Petitioner
has no constitutional right to counsel. See Coleman v. Thompson, 501 U.S. 722, 752. ("There is no
constitutional right to an attorney in state post-conviction proceedings."); Order Denying
Petitioner's Motion for Appointed Counsel (ECF No. 9). Typically, there is no Constitutional
19

violation for failure to appoint counsel where there is no Constitutional right to counsel. See Davila
v. Davis, 582 U.S. at 529; Ross v. Moffitt, 417 U.S. 600, 619 (1974) ("[R]espondent was denied no
right secured by the Federal Constitution when North Carolina refused to provide counsel to aid
him in obtaining discretionary appellate review."); Order Denying Counsel in the Petition for
Extraordinary Relief Proceedings (ECF No. 8-31 (citing Schwarz v. Duncan, 2000 UT App 172, ¶
4).) Petitioner fails to supply the court with sufficient argument and analysis to reach an alternative
decision. Therefore, these arguments are dismissed as vague and conclusory. See Northington v.
Jackson, 973 F.2d at 1521.
Next, Petitioner seems to assert a claim against Hon. Vernice Trease who presided over
his criminal proceedings. See ECF Nos. 18-4, at 1; 18-5, at 1. Here again, Petitioner fails to
articulate a Constitutional violation. Petitioner was appointed counsel in each proceeding. See
ECF Nos. 18-4, at 3; 18-5, at 3. Defendant gives no specific indication how Judge Trease may
have violated Petitioner's Constitutional right to an attorney. Salt Lake Legal Defenders were
appointed to defend Petitioner in each case. Id. Petitioner fails to articulate how Judge Trease
violated Petitioner's right to counsel despite having appointed counsel on his behalf. To the
extent that Petitioner asserts a claim against Judge Trease, the claim is inscrutably vague and
conclusory. See Northington v. Jackson, 973 F.2d at 1521. ("[T]he court should not assume the
role of advocate, and should dismiss claims which are supported only by vague and conclusory
allegations.").
Finally, Petitioner alleges that the Utah State Prison Contract Attorney and Isaac
McDougall, defense counsel for the 2020 Charges, provided ineffective assistance of counsel.
Petitioner offers no support for his implicit contention that his relationship with the Utah State
Prison Contract Attorney implicated Constitutional protections against ineffective assistance. With

20

regard to Mr. McDougall, Petitioner seems to suggest that Mr. McDougall's refusal to support
Petitioner's pro se motion asserting his ex post facto and due process arguments against the 2020
Charges was a denial of effective assistance of counsel. However, Petitioner fails to address either
element of the requisite Strickland standard: (1) deficient performance by counsel, measured by a
standard of "reasonableness under prevailing professional norms;" and, (2) prejudice to the defense
caused by that deficient performance. Strickland, 466 U.S. at 687-88. Nor is likely that Petitioner
could establish either element because, as this decision has already determined, Petitioner accepted
the terms of his parole and forfeit any ex post facto claim when he declined to appeal the Utah
Court of Appeals decision in 2008. Counsel's refusal to support a non-viable claim does not amount
to ineffective assistance of counsel. Davila v. Davis, 582 U.S. at 533 (A strategic decision to forgo
a claim on appeal is only deficient performance if the claim was plainly stronger than those actually
presented to the appellate court.) Nor has Petitioner supplied the court with adequate support for
the due process arguments to establish that counsel's refusal to support them in the context of a
parolee who had been arraigned on criminal charges was denied due process because his final
parole hearing was continued during the pendency of the criminal case. Petitioner fails to address
whether Mr. McDougall's refusal to advance Petitioner's ex post facto and due process claims fell
below an objective standard of reasonableness, and that his refusals prejudiced defendant. See
Strickland, 466 U.S. at 687-88. Petitioner's conclusory claims are dismissed because they fail to
address relevant legal standards. See Northington v. Jackson, 973 F.2d at 1521.
V. PETITIONER'S DUE PROCESS CLAIMS ARE PROCEDURALLY DEFAULTED
Petitioner's remaining arguments assert due process violations. Respondent moves to
dismiss Petitioner's due process claims arguing that Petitioner failed to exhaust his state
remedies. (ECF No. 18, at 5-18.)

21

The Petition's third ground for relief complains that he was denied due process because
he "was held imprisoned for 203 days (from Dec.1 2019 to Jun. 22 2020) without bail or filed
charges or having my parole revocation final hearing." (ECF No. 5, at 11.) The Petition's fourth
ground for relief makes a related claim that he was denied due process because he was "never
afforded a timely final revocation hearing have been held sinse [sic] December 1st 2019 to today
absent a final revocation hearing. Having been held to conditions impacting liberty interest of
parole without justification." Id. at 13. The memorandum in support of the Petition conflates the
claims and argues only that he was denied due process because he did not receive a final parole
revocation hearing. The memorandum presents the due process claim as
The Utah Third District Courts [sic] failure to address the Utah
Board of Pardons and Parole's denial of the petitioners [sic] rights
to due process as set forth by Morrissey V. Brewer, 408 U.S. 471
(1972) at headnote 12; see Exhibits F, F1, F2, G, H, I, K, and 8 thru
15.
"Due process requires that parolee held pending final decision of
parole board be given opportunity for hearing within reasonable
time after he is taken into custody; minimal requirements include (d)
right to confront and cross examine adverse witnesses, …. and
Parole [sic] revocation hearing must be tendered within reasonable
time after parolee is taken into custody" Id. at headnote 14.
Petitioner still after delay of over 730 days to December 1, 2021, has
yet to receive a final revocation hearing. Nor has the board been able
to provide a true and correct copy of a parole agreement with my
signature upon it (No Valid Contract). (See Attached copies of
records as supplied to me by the Utah Board of Pardons and Parole,
Courts and The Utah Law Library). Documentary Evidence
Supporting all claims are attached for the Courts Convenience. See
Exhibits 8 thru 15
ECF No. 8, at 2. Later in the memorandum, Petitioner supplies the following
analysis quoted in its entirety:
"The Final Argument is over the Board of Pardons and Parole's
continued denial of the petitioner's right's to the Protections to due
process of law as set forth by the United States Supreme Courts
Holdings in Morrissey V. Brewer, 408 U.S. 471 (1972); "Due
process requires that parolee held pending final decision of parole
22

board be given opportunity for hearing within reasonable time after
he is taken into custody; minimal requirements include (a) written
notice of claimed parole violations; (b) disclosure of evidence
against him; (c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) right to confront and cross
examine adverse witnesses, unless hearing officer specifically finds
good cause for not allowing confrontation; (e) "Neutral and
detached" hearing body such as traditional parole board; (f) written
statement by factfinders as to evidence relied on and reason for
revocation." "Parole revocation hearing must be tendered within
reasonable time after parolee is taken into custody." Id. at headnote
14. In United States ex rel. Buono V. Kenton, 287 F.2d. 534, 536,
(2nd Cir. 1961) (delay of revocation hearing) "113 day delay
unreasonable and could not be justified by administrative errors."
(see petitioners motion to dismiss at page 19 No. 20) "The Utah
Board of Pardons and Parole" continues to delay the petitioners
revocation hearing now accumulating some 730 days to December
1, 2021, has yet to receive a final revocation hearing plus days thru
October 1, 2022, this delay is and of itself is prejudicial to the
petitioner and therefore runs afoul of the due Process protections.
Also See Utah Board of Pardons and Parole's hearing continuances
notices for prejudicial information concerning a prior conviction for
which the petitioner has served the statutory maximum yet petitioner
continues to be "punished" beyond the statutory maximum sentence
proscribed [sic] by law. -see Exhibits H thru K, E. See Utah Code
76-3-202(3)(2007), "but not exceed the maximum term".
Id. at 20-21.
Respondent argues that Petitioner's due process claims should be dismissed without
prejudice because they are unexhausted. Specifically, Respondent argues that "Petitioner's
criminal case [the 2020 Charges] is in active litigation, and his parole hearing hinges on the
outcome of his trial." (ECF No. 18, at 6.) Respondent argues that the claim must therefore be
dismissed because the AEDPA only affords relief once there has been a final judgment and the
state courts have had the opportunity to remedy the alleged defect. Id. citing 28 U.S.C. § 2254
(b)((1)(A), (c).
Petitioner's response to the motion to dismiss argues that he exhausted his due process
claims through his Petition for Interlocutory Relief And Or Writ for Extraordinary Relief filed on
23

October 28, 2021 (ECF No. 19-1), as well as his Petition for Writ of Certiorari filed the Utah
Supreme Court on February 14, 2021. (ECF No. 19-2.) Both documents include Petitioner's due
process claims in virtually identical language to his Petition and memorandum in support.
Compare ECF No. 19-1, at 23; 19-2, at 23, 36, with ECF No. 5, at 11, ECF No 8, at 2, 20-21.
Petitioner filed the Petition on or around August 5, 2022. Respondent filed the motion to
dismiss on Mar 24, 2023. Petitioner had been arrested pursuant to a parole search in late 2019
and was being held in custody pending litigation of two felony counts of failure to register as a
sex offender in violation of U.C.A § 77-41-107(1)(a). See State v. Hutchings, No. 201906587,
docket no. 1 (Utah Dist. Ct. filed June 9, 2020). The parties exchanged discovery. Id. at docket
nos. 21 (filed October 20, 2020); 26 (filed January 5, 2021). Petitioner, represented by counsel,
pled not guilty to the two parole violations at his arraignment. Id. at docket no. 27 (filed January
5, 2021). Defendant repeatedly waived his right to a speedy trial. Id. at docket nos. 21 (filed
October 20, 2020); 26 (filed January 5, 2021). Petitioner's parole revocation hearing was
repeatedly continued because of the pendency of the 2020 Charges. (ECF Nos. 19-37; 19-38; 1939; 19-40.) On June 12, 2023, the 2020 Charges were dismissed on the State's motion due to the
time Petitioner had already served in the case. State v. Hutchings, No. 201906587, docket no.
228 (filed June 12, 2023).
A. Procedural Default
Both of Petitioner's attempts to exhaust his due process claims by petition to the Utah
Supreme Court appear to be untimely. Petitioner's petition to the Utah Supreme Court for
interlocutory relief was filed on October 28, 2021 while his appeal was still pending before the
Utah Court of Appeals. See, ECF No. 19-1, at 27; ECF No. 8-31 (decided December 9, 2021.)
Therefore, the petition to the Utah Supreme Court for interlocutory relief was premature. Absent

24

"exceptional circumstances," the Utah Supreme Court will decline to consider an issue which has
not been "presented to the district court in such a way that the court has an opportunity to rule on
[it]." Patterson v. Patterson, 2011 UT 68, ¶ 12. The Utah Supreme Court denied the premature
petition for interlocutory relief on December 16, 2021. Hutchings v. Utah, No. 20210813, (Utah
Sup. Ct. Dec. 16, 2021) (docket). On the other hand, the February 14, 2022 petition for certiorari
was late. When the Court of Appeals rendered a decision on the petition for interlocutory relief
on December 9, 2021, Petitioner had thirty days to petition the Supreme Court for certiorari. See
Utah R. App. P. 48(a) ("A petition for a writ of certiorari must be filed with the Supreme Court
clerk within 30 days after the Court of Appeals’ final decision is issued.") Petitioner filed his
petition for certiorari on February 14, 2022, more than a month after the deadline had expired.
See ECF No. 19-2, at 36. The Utah Supreme Court summarily denied the petition for certiorari.
ECF No. 18-3. In each instance, Petitioner failed to properly present his due process claims to
the Utah Supreme Court.
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)). "The exhaustion requirement is designed to avoid the
'unseemly' result of a federal court 'upset[ting] a state court conviction without' first according
the state courts an 'opportunity to . . . correct a constitutional violation.'" Davila v. Davis, 582
U.S. at 527 (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)).

25

Petitioner's due process claims have not been fairly presented to the state's highest court
and Petitioner would now be procedurally barred from presenting them in Utah courts.
Petitioner's claims are therefore procedurally defaulted from federal consideration. See Thomas,
218 F.3d at 1221.
B. Exception to Procedural Default
Procedural default may be avoided if a petitioner can demonstrate either cause and
prejudice or a fundamental miscarriage of justice. Thomas, 218 F.3d at 1221 ("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.'") (quoting English v. Cody, 146 F.3d 1257,
1259 (10th Cir. 1998) (alteration in original)).
1. Cause and Prejudice
A petitioner may be able to overcome procedural default if he can establish "cause" to
excuse the procedural default and demonstrate that he suffered "actual prejudice" from the
alleged error. Davila v. Davis, 582 U.S. at 524. "[T]o satisfy the 'cause' standard, a 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).
Where the alleged cause and prejudice is ineffective assistance of counsel, the petitioner must
satisfy both prongs of Strickland's familiar two-pronged standard: (1) deficient performance by
counsel, measured by a standard of "reasonableness under prevailing professional norms;" and,
(2) prejudice to the defense caused by that deficient performance. Strickland v. Washington, 466
U.S. 668, 687-88 (1984). "In the plea context, the cornerstone of ineffectiveness is whether the
plea was involuntary because plea counsel's advice was below 'the range of competence

26

demanded of attorneys in criminal cases.'" United States v. Spaeth, 69 F.4th 1190, 1211 (10th Cir.
2023). The Supreme Court has made clear that attorney performance is strongly presumed to
have been adequate. Strickland, 466 U.S. at 690. "Effective appellate counsel should not raise
every nonfrivolous argument on appeal, but rather only those arguments most likely to succeed."
Davila v. Davis, 582 U.S. at 533. A strategic decision to forgo a claim on appeal is only deficient
performance if the claim was plainly stronger than those actually presented to the appellate court.
Id. 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." Murray v. Carrier, 477 U.S. 478, 494 (1986) (emphasis in original) (alteration in
original) (quoting United States v. Frady, 456 U.S. 152 (1982)). The petitioner must show that
there is a reasonable probability that, but for counsel's errors, the result of the proceeding would
have been different. Strickland, 466 U.S. at 694. When a defendant "enters his plea upon the
advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within
the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52,
56 (1985). Finally, "the court should not assume the role of advocate, and should dismiss claims
which are supported only by vague and conclusory allegations." Northington v. Jackson, 973
F.2d 1518, 1521 (10th Cir. 1992).
2. Miscarriage of Justice
A petitioner may also overcome the procedural bar if he can show that his conviction
resulted in a "fundamental miscarriage of justice." See Thomas, 218 F.3d at 1221 (alteration
omitted) (citation omitted). A fundamental miscarriage of justice may be proven by actual
innocence where a petitioner can show that "in light of new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt." McQuiggin v.

27

Perkins, 569 U.S. 383, 386-87 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). To be
plausible, an actual-innocence claim must be grounded on solid evidence not adduced at trial.
Calderon v. Thompson, 523 U.S. 538, 559 (1998) (citing Schlup, 513 U.S. at 324). The petitioner
must show that "it is more likely than not that no reasonable juror would have convicted him in
light of the new evidence" presented in his habeas petition. Id. Because such evidence is so rare,
"in virtually every case, the allegation of actual innocence has been summarily rejected." Id.
(citation omitted).
Petitioner fails to meet the standard to excuse his procedural default. Petitioner's due
process claims are conclusory and Petitioner fails to establish either cause and prejudice to
excuse his default, nor that denial of relief will result in a miscarriage of justice. Petitioner argues
that his parole should have terminated by operation of the 2007 version of the parole statue, but
fails to explain his failure to present his ex post facto claim to the Utah Supreme Court until
several years after the period to obtain relief had expired. Petitioner's argument that he was
denied due process because he was held for more than 700 days without a parole revocation
hearing neglects to address the due process afforded by his criminal proceedings for his parole
violations. After he was arrested, he was arraigned, appointed counsel and repeatedly waived his
rights to a speedy trial for his probation violations. Petitioner fails to address the process he was
afforded and whether it satisfies the minimum requirements set forth in Morrissey. Therefore,
Petitioner fails to meet the standard to excuse his procedural default.
V. CONCLUSION
Each of Petitioner's claims are fatally defective. Petitioner's ex post facto claim is
untimely; Petitioner's ineffective assistance of counsel claims are vague and conclusory;

28

Petitioner's due process claims are procedurally defaulted because they have not been exhausted
in the Utah State Courts.
IT IS THEREFORE ORDERED that
1) Pursuant to the court's order to show cause (ECF No. 32), Petitioner's first cause of
action is DISMISSED WITH PREJUDICE because it is untimely.
2) Respondents' motion to dismiss (ECF No. 18) is GRANTED IN PART:
• Respondent's motion to dismiss Petitioner's first (ex post facto) cause of action is
DENIED as moot;
• Respondents' motion to dismiss Petitioner's second (ineffective assistance of
counsel), third (due process) and fourth (due process) causes of action is GRANTED.
3) Petitioner's Motion for Summary Judgment (ECF No. 27) is DENIED.
4) Petitioner's Motion to dismiss Respondent's motion to dismiss (ECF No. 30) is
DENIED.
5) The Petition for habeas corpus is DENIED and the action is DISMISSED
WITHOUT PREJUDICE.
6) A certificate of appealability is DENIED.
This action is CLOSED.
DATED this 26th of March, 2024.
BY THE COURT
________________________________________
JUDGE TED STEWART
United States District Court

29