Carter v. Galetka
| Decision Date | 06 November 2001 |
| Docket Number | No. 20000145.,20000145. |
| Citation | 44 P.3d 626,2001 UT 96 |
| Parties | Douglas Stewart CARTER, Petitioner and Appellant, v. Hank GALETKA, Warden, Utah State Prison, Respondent and Appellee. |
| Court | Utah Supreme Court |
Bradley P. Rich and Jack M. Morgan, Salt Lake City, for petitioner.
Mark L. Shurtleff, Att'y Gen., Thomas B. Brunker, Asst. Att'y Gen., Salt Lake City, for respondent.
¶ 1 Petitioner Douglas Stewart Carter appeals the district court's dismissal of his second amended petition for a writ of habeas corpus and post-conviction relief. We affirm.
¶ 2 For a complete recitation of the facts in this case see State v. Carter, 888 P.2d 629, 633-37 (Utah 1995) (Carter II). Carter was convicted of murder in the first degree, a violation of section 76-5-202 of the Utah Code, and sentenced to death in December 1985. Carter appealed, raising several issues. The American Civil Liberties Union (ACLU) filed an amicus curiae brief, expanding on the issues Carter raised and raising several additional issues. On direct appeal, this court affirmed Carter's murder conviction but vacated the death sentence. State v. Carter, 776 P.2d 886, 895-96 (Utah 1989) (Carter I). On remand in January 1992, Carter was again sentenced to death, and in January 1995, this court affirmed the death sentence imposed at the 1992 penalty hearing. State v. Carter, 888 P.2d 629, 633 (Utah 1995) (Carter II), cert. denied, Carter v. Utah, 516 U.S. 858, 116 S.Ct. 163, 133 L.Ed.2d 105 (1995).
¶ 3 Carter filed a pro se application for a writ of habeas corpus and post-conviction relief with the district court in October 1995. In December 1995, four attorneys undertook representation of Carter and filed an amended petition in February 1996. In 1997, the legislature enacted section 78-35a-202, which permits state-funded counsel to be appointed by the court for indigent defendants in post-conviction cases involving a death sentence. See Utah Code Ann. § 78-35a-202 (Supp. 2000). In October 1997, Carter requested that current counsel be appointed to represent him, and the district court granted Carter's motion. Carter's second amended petition for habeas corpus and post-conviction relief was prepared by appointed counsel and filed in July 1998.
¶ 4 In his second amended petition, Carter asserted nearly fifty allegations of error, each with numerous subparts. The district court thoroughly reviewed the allegations and then dismissed Carter's petition. In its detailed written ruling, the district court addressed each of Carter's allegations. The court dismissed the majority of Carter's claims as procedurally barred. The court analyzed and dismissed the remainder of Carter's claims on their merits. Carter appeals.
¶ 5 Because Carter's petition contains many allegations, we reiterate at the outset that although this court reviews and decides each of the allegations of error raised in a death penalty case, the court "need not analyze and address in writing each and every argument, issue, or claim raised." Carter I, 776 P.2d at 888. Our decision not to address in writing certain issues is in no way a reflection upon counsel's presentation of the case. We acknowledge, as the district court pointed out, that counsel in this case has undertaken a masterful effort in presenting the issues for review by the court. However, if an issue raised depends upon essential principles that have already been established, we may well omit discussion of that issue. "Use of this rule in capital punishment . . . cases continues to be appropriate and important in. . . enabling this Court, after fair and comprehensive review, to expeditiously focus judicial resources and energy on those critical or outcome-determinative issues . . . ." Id. at 889.
¶ 6 A petition for habeas corpus is a collateral attack of a conviction and/or sentence and is not a substitute for direct appellate review. Gardner v. Holden, 888 P.2d 608, 613 (Utah 1994). As a result, issues raised and disposed of on direct appeal of a conviction or sentence cannot be raised again in a petition for habeas corpus. Id. Such issues are dismissed as an abuse of the writ, without a ruling on the merits. Id. Additionally, issues that could and should have been raised on direct appeal, but were not, may not be raised for the first time in a habeas corpus proceeding, absent unusual circumstances. Id.; see also, e.g., Fernandez v. Cook, 783 P.2d 547, 549 (Utah 1989)
; Codianna v. Morris, 660 P.2d 1101, 1104-05 (Utah 1983).
¶ 7 The district court dismissed the majority of Carter's claims because they had been previously raised, either by Carter or the amicus curiae, or they were issues that could and should have been raised on direct appeal and there were no unusual circumstances justifying Carter's failure to do so. We agree with the district court's conclusion that the following claims are procedurally barred.
¶ 8 The following claims are procedurally barred because they were previously raised on direct appeal by Carter in Carter I or Carter II: (1) Counsel during the 1985 trial was ineffective for (a) failing to seek any pretrial discovery from the State, (b) failing to conduct any investigation into the crime, and (c) failing to request appointment of a psychiatric expert to assist in Carter's defense. (2) The trial court during the 1992 penalty hearing failed to remove for cause biased and incompetent members of the venire panel. (3) The trial court during the 1992 penalty hearing admitted into evidence the abstract of testimony from the first trial, which denied Carter's right to confront and cross examine the witnesses against him. (4) The trial court erred in denying Carter's motion for a change of venue. (5) The trial court refused to suppress Carter's statements to police, despite the fact that police officers allegedly used questionable means to obtain the statements. (6) The prosecution in Carter's 1985 trial engaged in misconduct by (a) improperly commenting on Carter's right to remain silent, (b) improperly vouching for a witness during his closing argument, (c) improperly interfering with the attorney-client relationship between Carter's wife and her attorney, and (d) improperly, and without authorization, granting immunity to Carter's wife. (7) The trial court during the 1992 penalty hearing improperly admitted prejudicial victim impact evidence. (8) The trial court failed to instruct the jury that they must vote unanimously as to the aggravating circumstance. (9) Carter was denied a fair sentencing determination because the guilt phase and first penalty hearing were not bifurcated. (10) The trial court during the 1992 penalty hearing submitted an aggravating circumstance to the jury that was not supported by sufficient evidence. (11) The Utah Supreme Court improperly applied the harmless error analysis to the admission of the victim impact evidence at the 1992 sentencing hearing. (12) The Utah Supreme Court acknowledged errors in the 1992 penalty hearing, yet the court refused to find that Carter was prejudiced based on the cumulative effect of the errors. (13) Carter was subjected to double jeopardy because evidence was admitted during the penalty phase regarding the rape or attempted rape charges, after the jury, during the guilt phase, found Carter not guilty of those charges. (14) Carter was denied adequate appellate review because the jury was not required to submit a special verdict form finding each aggravating circumstance beyond a reasonable doubt. (15) There is an unconstitutional conflict between two subsections of 76-3-207 of the Utah Code. (16) The trial court prejudicially instructed the jury on crimes that had not been charged in the Information.
¶ 9 Because the above-listed claims were previously raised on direct appeal by Carter in either Carter I or Carter II, they are subject to the procedural bar and were properly dismissed by the district court in the habeas proceeding. We do not consider their merits.
¶ 10 On direct appeal in Carter I, the ACLU filed an amicus curiae brief, expanding on the issues raised by Carter and raising a number of additional issues. In Carter's petition for habeas corpus he attempts to re-argue some issues relating to the alleged ineffectiveness of trial counsel raised by the ACLU in Carter I. However, because these issues were raised and decided on direct appeal, they are procedurally barred and may not be raised again in Carter's habeas petition. The following is a list of these issues: (1) Trial counsel was ineffective for (a) not investigating the circumstances under which Carter confessed to the crime, (b) not being familiar with Utah law, (c) not presenting evidence to support Carter's motion for a change of venue, (d) failing to cross-examine the State's medical expert, (e) presenting no defense on Carter's behalf, and (f) failing to object to the jury instructions.
¶ 11 Carter asserts that these issues cannot be treated as previously raised and disposed of because Carter did not raise them himself. He claims that the issues raised by the ACLU cannot be attributed to him because an amicus curiae cannot extend or enlarge the issues on appeal. Carter further argues that the above-listed issues are not procedurally barred because this court did not specifically address these issues in its opinion in Carter I.
¶ 12 We find Carter's argument to be without merit for two reasons. First, after the ACLU filed its amicus brief, Carter filed a second supplemental brief in which he specifically adopted the arguments made by the ACLU regarding the alleged ineffectiveness of trial counsel. In Carter's second supplemental brief, he stated, "This brief supports totally the arguments of amicus curiae as regards [the ineffectiveness of trial counsel] issue and wishes to emphasize...
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