Currier v. Holden, s. 920467-C

Decision Date17 September 1993
Docket NumberNos. 920467-C,930123-CA,s. 920467-C
Citation862 P.2d 1357
PartiesStephen CURRIER, Petitioner and Appellant, v. Tamara HOLDEN, Warden, Respondent and Appellee. Carl McCLELLAN, Plaintiff and Appellant, v. Tamara HOLDEN, Defendant and Appellee.
CourtUtah Court of Appeals

Kathryn Kendall, Ogden, and Stephen Currier, Draper, for appellant in No. 920467-CA.

Steven J. Aeschbacher, Salt Lake City, for appellant in No. 930123-CA.

Jan Graham and Martin B. Bushman, Salt Lake City, for appellee.




Petitioners Stephen Currier and Carl McClellan seek to have this court reverse the respective dismissals of their petitions for writs of habeas corpus on the ground that the statute of limitations barring these petitions is unconstitutional. 2 We conclude that the limitation period in Utah Code Ann. § 78-12-31.1 (1992) is an unreasonable limitation on the constitutional right to petition for a habeas corpus writ that violates petitioners' rights under Article I, section 11 of the Utah Constitution to seek a civil remedy in state courts. We, therefore, reverse both dismissals and remand these cases for consideration of their substantive claims.


Although we have consolidated these two cases for purposes of this opinion, we present their facts separately.

Currier v. Holden

After Currier was charged with the first degree felony, sexual abuse of a child on October 3, 1988, he entered into a plea bargain whereby he pled guilty to a second degree felony. However, when the trial court sentenced Currier to eighteen months probation and required him to serve six months in the Carbon County Jail as a condition of probation, he attempted to withdraw his guilty plea. Currier brought two motions in which he alleged that the plea bargain resulted from wrongful and undue pressure on the part of his counsel and claimed that his counsel admitted unduly pressuring him. When the trial court denied these motions to withdraw his guilty plea, Currier appealed his conviction. Currier later dropped this appeal and was released from jail, remaining on probation. Subsequently, the State revoked Currier's probation after he tested positive for a controlled substance and returned him to prison.

On October 21, 1991, Currier's co-defendant, Mr. Marquez, executed an affidavit, notarized one week later, in which he recanted damaging testimony he had previously given against Currier. After Currier received a copy of this affidavit in November 1991, he contacted the contract attorneys 3 for the Utah State Prison, for assistance in filing a petition for a writ of habeas corpus seeking to allow him to withdraw his guilty plea. On December 16, 1991, the contract attorneys received Currier's edited rough draft of his petition. Immediately thereafter, Currier was transferred to San Juan County Jail.

On approximately January 6, 1992, Currier sent a letter to the contract attorneys at the State Prison, and received from them a revised petition for the habeas writ and his transcripts. Along with these papers the attorneys sent a memorandum stating that because Currier had been moved out of their jurisdiction they could no longer assist him and he would have to seek assistance from the San Juan County contract attorney. Currier requested an appointment with this contract attorney, but was unable to see him for five weeks.

Currier was transferred back to the Utah State Prison about March 20, 1992. At that time he gave the prison contract attorneys his petition for writ of habeas corpus and exhibits for them to file with the court. Currier's paper work was returned to him at the prison for his signature on March 25, 1992 and on April 10, 1992, Currier's petition was filed.

In his petition, Currier claimed ineffective assistance of trial counsel at the time of his plea agreement and at his sentencing. He alleged that his attorney used undue and wrongful pressure to induce him to enter into a plea bargain. 4 Currier claimed his counsel had convinced him to drop his original appeal and to agree not to file suit against counsel because counsel could arrange for his release from the six month term he was serving in the county jail through probation and suspension of his sentence.

The State responded to Currier's petition by filing a motion to dismiss based on the statute of limitations, claiming that six months had passed since Currier received the affidavit withdrawing the damaging testimony. After the district court granted the State's motion to dismiss, Currier filed this appeal.

McClellan v. Holden

On August 28, 1988, two days prior to trial, McClellan's original public defender withdrew and the court assigned him new counsel. McClellan, however, insisted on proceeding to trial, after which he was convicted of rape and sentenced to five years to life in the Utah State Prison.

About a month after the trial, the trial court received a request for a rehearing in a letter from McClellan which the trial court treated as a motion for a new trial. In his letter, McClellan claimed denial of effective assistance of counsel because his new attorney had not had time to prepare for trial. The trial court denied McClellan's motion for new trial on February 6, 1989.

Although McClellan's counsel, James Rupper, filed a notice of appeal of the original sentence, McClellan complains that he had no communication as to the status of the appeal from counsel and states that he was continually frustrated in attempts to contact Mr. Rupper. On July 12, 1990, McClellan finally communicated with Mr. Rupper who informed him of the status of his appeal and announced that Kent Willis had been handling his case since January 1990. McClellan says that he was unable to contact Mr. Willis until May 1991. At that time Mr. Willis told him that he anticipated filing a motion to remand for new trial with the Utah Court of Appeals. In May 1991, McClellan wrote the court of appeals and was informed that the trial transcript had not been located. 5 On August 14, 1991, Mr. Willis withdrew as counsel and Donald Elkins replaced him. McClellan says he was "never able to have any communication from Mr. Elkins."

On September 30, 1991, McClellan submitted his own writ of habeas corpus to the Third District Court. 6 In this petition, McClellan claimed ineffective assistance of trial counsel and appellate counsel, and complained about the failure of counsel to perfect an appeal, and the unavailability of his trial transcript.

The trial court appointed Mr. Aeschbacher as counsel to represent McClellan in his habeas action and gave McClellan thirty days in which to amend his habeas corpus petition. McClellan submitted his amended petition on January 14, 1992.

On March 3, 1992, the State moved to dismiss McClellan's petition for writ of habeas corpus on several grounds, including that it was untimely. About two weeks later McClellan submitted a memorandum in opposition to the State's motion to dismiss, claiming that his inability to obtain effective assistance of counsel for his appeal should preclude dismissal based on the statute of limitations. After a hearing, the district court dismissed the habeas petition as barred by the three-month statute of limitations in Utah Code Ann. § 78-12-31.1 (1992). The district court concluded that February 6, 1989, the date when the trial court denied McClellan's motion for a new trial, commenced the running of the statute of limitations for purposes of the writ of habeas corpus petition. McClellan appealed this dismissal of his writ.


In presenting their appeals to this court, each petitioner claims that the three-month statute of limitations is unconstitutional. Specifically, Currier argues that the statute (1) does not provide a reasonable period in which to file for relief, (2) contains no provision for excusable delay, and (3) requires invalidation because a judicial rule of procedure should not be subject to a statute of limitations. McClellan argues that the statute of limitations is unconstitutional because it (1) undermines the extraordinary purpose of the writ, (2) limits the right to remedy by due course of law as provided in the Utah Constitution, Article I, section 11, and (3) creates practical problems in administration because of its inherent ambiguity. Because we resolve both cases by evaluating the constitutionality of the statute under Article I, section 11 of the Utah Constitution, we need not individually address the other issues raised by the petitioners.

I. Statute of Limitations

In both of the cases consolidated in this opinion, petitioners claim that Utah Code Ann. § 78-12-31.1 (1992) violates the "open courts provision," Article I, Section 11 of the Utah Constitution because it unreasonably curtails their constitutional right to seek a civil remedy in state court. Utah Code Ann. § 78-12-31.1 requires a filing of the petition Within three months:

For relief pursuant to a writ of habeas corpus. This limitation shall apply not only as to grounds known to petitioner but also to grounds which in the exercise of reasonable diligence should have been known by petitioner or counsel for petitioner.

Id. This statute acts as a statute of limitations because it "requires a lawsuit to be filed within a specified period of time after a legal right has been violated or the remedy for the wrong committed is deemed waived." Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 672 (Utah 1985); Utah Code Ann. § 78-12-1 (1992). It is distinguishable from a statute of repose which bars any action after the running of a time period beginning with the occurrence of an event other than the injury underlying the cause of action. Berry, 717 P.2d at 672.

II. The Open Courts Provision

Despite the significant difference between statutes of limitations and statutes of repose, both categories of time limitations impact an individual's right...

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