Fernandez v. Cook
| Decision Date | 16 November 1989 |
| Docket Number | Nos. 880339,880353,s. 880339 |
| Citation | 783 P.2d 547 |
| Parties | Anastacio FERNANDEZ, Jr., Plaintiff and Appellant, v. Gerald L. COOK, Warden, Utah State Prison, Department of Corrections, State of Utah, Defendant and Appellee. |
| Court | Utah Supreme Court |
Robert M. Archuleta, Salt Lake City, for plaintiff and appellant.
R. Paul Van Dam, Dan R. Larsen, Salt Lake City, for defendant and appellee.
Plaintiff Anastacio Fernandez, Jr., convicted of two counts of rape of a child, appeals from a district court dismissal of his petition for a writ of habeas corpus. In his petition, Fernandez sought a new trial on the ground that he was denied effective assistance of counsel at trial and denied a trial by an impartial jury in violation of several constitutional guarantees. The district court determined that the issues raised in the habeas corpus petition could have been raised on direct appeal, found no unusual circumstances in this case that would justify the failure to have done so, and therefore, dismissed the petition. Fernandez appeals, arguing that the district court erred in finding that circumstances did not excuse his failure to raise his challenge on direct appeal. We agree and reverse and remand the matter to the district court.
In April of 1986, Fernandez was arrested and charged with two felony counts of rape of a child. Utah Code Ann. § 76-5-402.1 (Supp.1989). Fernandez was convicted of both counts at the conclusion of a two-day jury trial and was sentenced to two consecutive fifteen-year prison terms. His trial counsel handled the appeal. Only the trial court's sentencing decision was challenged. This Court held that the imposition of two consecutive fifteen-year terms was an abuse of discretion, vacated the sentence, and directed the trial court to resentence Fernandez to concurrent terms of imprisonment. In November of 1987, the trial court resentenced Fernandez to two concurrent fifteen-year terms.
Fernandez next filed a pro se appeal from the new sentencing order. However, in February of 1988, shortly before his appeal brief was due, Fernandez secured counsel, who stipulated to a voluntary dismissal of the appeal pursuant to rule 37(b) of the Rules of the Utah Supreme Court. R. Utah S.Ct. 37(b). 1 In April of 1988, Fernandez's new counsel filed a petition for habeas corpus in the third judicial district under Utah Rule of Civil Procedure 65B(i). 2 In the petition, Fernandez argued that he was entitled to a new trial because his constitutional right to a fair trial had been violated. In particular, he claimed that he was denied effective assistance of counsel and that he was not tried before an impartial jury. The State responded with a motion to dismiss the habeas corpus petition. It contended that except under "unusual circumstances," Fernandez could not use such a petition to raise issues that could or should have been raised on direct appeal. Brown v. Turner, 21 Utah 2d 96, 98, 440 P.2d 968, 969 (1968). It argued that no unusual circumstances existed in this case. The district court agreed with the State and dismissed the petition. Fernandez appeals.
In considering an appeal from a dismissal of a petition for a writ of habeas corpus, no deference is accorded the lower court's conclusions of law that underlie the dismissal of the petition. We review those for correctness. See State v. Mitchell, 779 P.2d 1116, 1118 (Utah 1989); State v. Arroyo, 770 P.2d 153, 154-55 (Utah Ct.App.1989); cf. Branam v. Provo School Dist., 780 P.2d 810, 811 (Utah 1989); Nephi City v. Hansen, 779 P.2d 673, 674 (Utah 1989).
The district court correctly apprehended the general rule governing applications for habeas corpus. Habeas corpus proceedings may be used to attack a judgment or conviction on the ground that an obvious injustice or a substantial denial of a constitutional right occurred at trial. Bundy v. DeLand, 763 P.2d 803, 804 (Utah 1988); Brown v. Turner, 21 Utah 2d at 98-99, 440 P.2d at 969. And in the ordinary case, a party may not raise issues in a habeas corpus petition that could or should have been raised on direct appeal. See, e.g., DeLand, 763 P.2d at 804; Wells v. Shulsen, 747 P.2d 1043, 1044 (Utah 1987) (per curiam); Codianna v. Morris, 660 P.2d 1101, 1104-05 (Utah 1983); Brown v. Turner, 21 Utah 2d at 98-99, 440 P.2d at 969. However, where unusual circumstances are present that justify the failure to raise the issue on direct appeal, a court may entertain such a claim raised for the first time in the habeas corpus petition.
Fernandez does not dispute these general principles. He simply contends that his habeas corpus petition presented unusual circumstances warranting invocation of the exception and entitling him to a hearing on the merits of his claim. Specifically, he asserts that his allegedly incompetent trial attorney represented him on his first direct appeal and that it is unreasonable to expect that attorney to raise the issue of his own incompetence. Under such circumstances, Fernandez contends, the habeas corpus petition was the first and only means for him to raise the present challenges to his conviction.
Our decision in DeLand supports Fernandez's claim that an ineffective assistance of counsel claim can properly be raised for the first time via habeas corpus when the allegedly incompetent counsel handled the trial and the direct appeal. There, the petitioner had been convicted of rape and forcible sodomy and took a direct appeal to this Court. We affirmed the conviction. State v. Bundy, 684 P.2d 58 (Utah 1984). He then filed a habeas corpus petition raising for the first time an ineffective assistance of counsel claim. The district court held an evidentiary hearing and denied the petition. An appeal was taken from that denial. We upheld the denial of the petition, but approved of the district court's holding an evidentiary hearing on the merits of the claim of ineffective assistance of counsel.
The present case is indistinguishable from DeLand. The sixth amendment right to effective assistance of counsel is imperiled if an alleged violation of that right cannot be raised for the first time in a habeas corpus proceeding when the allegedly ineffective trial counsel also represented the defendant on appeal and failed to raise the issue at that stage. In such a situation, the unusual circumstances required to avoid the bar of collateral attack are present. We therefore hold that because his trial counsel was also his counsel on direct appeal, Fernandez is not barred from using habeas corpus to raise the ineffective assistance of counsel claim. 3 The district court erred in dismissing his petition without a hearing on the merits.
The district court did not distinguish between Fernandez's ineffective assistance of counsel claim and his biased jury claim in dismissing his petition for a writ of habeas corpus. Unless the failure to raise the biased jury claim on direct appeal is grounded on the assertion of ineffective assistance of counsel, that claim could have been raised on direct appeal and cannot now be raised in a habeas corpus petition.
We reverse the district court's dismissal of Fernandez's petition for a writ of habeas corpus and remand for an evidentiary hearing on Fernandez's claim that his sixth amendment right to effective assistance of counsel at trial was violated. Because we cannot determine the exact relationship between the biased jury claim and the ineffective assistance claim, we remand that issue to the district court for further consideration.
I do not join the opinion of the Court because I do not agree that the issue of ineffectiveness of trial counsel could not have been raised as part of the second appeal. Rather, I am of the view that the issue could and should have been raised in that appeal. 1
Both the first and the second appeal raised the same solitary issue, namely, the propriety of the sentence imposed. It is understandable why the first appeal did not raise the issue of ineffective assistance of counsel because it was filed by trial counsel now alleged to have been ineffective. However, plaintiff filed the second appeal pro se, yet did not see fit to raise the additional issue. Shortly thereafter, he obtained the assistance of present appellate counsel, who reached the conclusions that the sentencing issue was without merit and that an...
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