Gardner v. Galetka, 2004 UT 42 (UT 5/28/2004)

• Citation: 2004 UT 42
• Decision Date: 28 May 2004
• Docket Number: No. 20010875.,20010875.
• Parties: Ronnie Lee Gardner, Plaintiff and Appellant, v. Hank Galetka, Warden of the Utah State Prison, Defendant and Appellee.
• Court: Supreme Court of Utah

Page 1

2004 UT 42

Ronnie Lee Gardner, Plaintiff and Appellant, v. Hank Galetka, Warden of the Utah State Prison, Defendant and Appellee.

No. 20010875.

Supreme Court of Utah.

Filed May 28, 2004.

This opinion is subject to revision before final publication in the Pacific Reporter.

Third District, Salt Lake, The Honorable Frank G. Noel.

James C. Bradshaw, Salt Lake City, and Andrew Parnes, Ketchum, ID, for plaintiff.

Mark L. Shurtleff, Att'y Gen., Thomas B. Brunker, Asst. Att'y Gen., Salt Lake City, for defendant.

AMENDED OPINION

WILKINS, Justice:

¶1 Plaintiff Ronnie Lee Gardner appeals the district court's dismissal of his second petition for post-conviction relief. We affirm, holding that Gardner's claim is procedurally barred by the Post-Conviction Remedies Act (the "PCRA" or the "Act"). See Utah Code Ann. §§ 78-35a-101 to -106 (2002).

FACTUAL AND PROCEDURAL HISTORY

¶2 For a complete recitation of the underlying facts of this case, see Gardner v. Holden, 888 P.2d 608, 612-13 (Utah 1994) (Gardner II). In October 1985, Gardner was convicted of first degree murder, attempted first degree murder, aggravated kidnapping, escape, and possession of a dangerous weapon by an incarcerated person. At the close of the evidence, the district court instructed the jury on the requisite elements of first degree murder. In its instruction, the district court noted that the jury could only find Gardner guilty of this offense if it concluded beyond a reasonable doubt that he committed an "intentional" or "knowing" killing.

¶3 However, in its separate mens rea instruction, the district court misdefined the term "knowingly." In pertinent part, the erroneous instruction reads as follows:

A person engages in conduct:

. . . .

2. "Knowingly" when he is aware of the nature of his conduct, or the existing circumstances, or is aware that his conduct is reasonably certain to cause the result.

(Emphasis added.)¹ Although Gardner's defense counsel had previously submitted an alternative definition of "knowingly," neither of his attorneys objected to the district court's instruction. As stated above, the jury convicted Gardner of first degree murder and, after a separate penalty hearing, sentenced him to death.

¶4 On direct appeal, Gardner raised eighteen challenges to his conviction and sentence, including two separate claims of instructional error—neither of which pertained to the "knowingly" instruction. In State v. Gardner, this court affirmed his conviction and death sentence. 789 P.2d 273, 288 (Utah 1989) (Gardner I). One year later, in 1990, Gardner filed his first post-conviction petition in the district court and alleged sixteen grounds for relief, including ineffective assistance of both trial and appellate counsel. With respect to his ineffective assistance of trial counsel claim, Gardner identified sixteen specific acts or omissions, but did not include any challenge to the "knowingly" instruction. Regarding his ineffective assistance of appellate counsel claim, Gardner alleged nine errors in his representation. Again, however, he raised no objection to the correctness of the "knowingly" instruction. Although the district court initially ruled that Gardner was entitled to a new penalty hearing and direct appeal, this court reversed and reaffirmed his conviction and capital sentence. Gardner II, 888 P.2d at 611, 623.

¶5 In January 1997, Gardner filed a petition for writ of habeas corpus in the United States District Court for the District of Utah. In the federal petition, he presented twenty-two challenges to his conviction and sentence, including ineffective assistance of trial and appellate counsel, but omitted for the third time any claim related to the "knowingly" instruction. It was not until August 1999, over two years into the federal proceeding, that Gardner first argued that his appellate counsel performed deficiently by failing to attack the "knowingly" instruction. After accepting written submissions and hearing argument, the federal district court declined to determine whether this new claim was procedurally barred under Utah law. Instead, it directed Gardner to file a second post-conviction petition in state court to exhaust the claim, allowed him to amend his federal habeas corpus petition to include the claim, and agreed to hold that portion of the federal petition in abeyance pending state court resolution.

¶6 Upon the filing of Gardner's second post-conviction petition, the State moved for summary judgment on grounds of procedural bar. Specifically, the State argued that the Post-Conviction Remedies Act precluded Gardner from asserting a new claim of ineffective assistance of appellate counsel because a challenge to the "knowingly" instruction "could have been, but was not, raised in a previous request for post-conviction relief." Utah Code Ann. § 78-35a-106(1)(d) (2002). The district court denied the State's motion, ruling that the PCRA incorporated the pre-Act common law procedural bar rules and that, pursuant to those rules, Gardner had demonstrated sufficient "good cause" to justify substantive review of his claim. The State then moved for summary judgment on the merits. Applying Strickland v. Washington, 466 U.S. 668 (1984), the district court concluded that Gardner could not establish a reasonable probability that, but for his counsel's failure to challenge the erroneous "knowingly" instruction, the outcome on direct appeal would have been different. As such, the district court found that Gardner had not demonstrated prejudice and granted the State's motion. Gardner now appeals.

STANDARD OF REVIEW

¶7 "We review an appeal from an order dismissing or denying a petition for post-conviction relief for correctness without deference to the lower court's conclusions of law." Rudolph v. Galetka, 2002 UT 7, ¶ 4, 43 P.3d 467.

ANALYSIS

¶8 Although the district court granted the State's motion for summary judgment on the merits, we note that this court may affirm the denial of Gardner's petition for post-conviction relief on the alternative ground that his claim is procedurally barred. See Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 ("It is well settled that an appellate court may affirm the judgment appealed from 'if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action . . . .'" (quoting Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225) (further citation omitted)). In accordance with this prerogative, we hold that Gardner's ineffective assistance of appellate counsel claim is foreclosed by the Post-Conviction Remedies Act. See Utah Code Ann. §§ 78-35a-101 to -106 (2002).

I. POST-CONVICTION REMEDIES ACT

¶9 In 1996, the legislature enacted the PCRA to "establish[] a substantive legal remedy for any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies." Id. § 78-35a-102(1). By the plain language of section 78-35a-106, the Act purports to replace our common law post-conviction procedural bar jurisprudence with a statutory restriction on successive claims. Id. § 78-35a-106. Of particular importance in the instant case, the PCRA mandates that:

(1) A person is not eligible for relief under this chapter upon any ground that:

. . . .

(d) 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 post-conviction relief.

Id. § 78-35a-106(1)(d) (emphasis added).²

¶10 Citing this section, the State asserts that Gardner's current post-conviction petition is precluded because his ineffective assistance of appellate counsel claim could have been, but was not, brought in his first post-conviction proceeding. The State emphasizes that the erroneous "knowingly" instruction became part of the record in 1985, and that the information Gardner relies on to support his present claim was available to him when he filed his initial post-conviction petition in 1990. Thus, the State contends that the PCRA bars Gardner's claim.

¶11 In response, Gardner argues that the district court correctly incorporated the pre-1996 common law post-conviction procedural bar rules into the Act. Prior to the enactment of the PCRA, our case law permitted merits review of claims raised for the first time in successive post-conviction proceedings upon a showing of "good cause." See Hurst v. Cook, 777 P.2d 1029, 1036-37 (Utah 1989). In Hurst, this court articulated five factors that constitute sufficient "good cause" to allow the filing of successive post-conviction petitions. Id. at 1037. Those factors are:

(1) the denial of a constitutional right pursuant to new law that is, or might be, retroactive[;] (2) new facts not previously known which would show the denial of a constitutional right or might change the outcome of the trial[;] (3) the existence of fundamental unfairness in a conviction[;] (4) the illegality of a sentence[;] or (5) a claim overlooked in good faith with no intent to delay or abuse the writ.

Id. (citations and footnotes omitted).

¶12 As noted above, the district court first determined that the Act inherently includes the common law procedural bar rules, and then found that Gardner established "good cause" under the third and fifth Hurst factors; namely, "the existence of fundamental unfairness in a conviction" and "a claim overlooked in good faith with no intent to delay or abuse the writ." Id. We disagree with the district court's wholesale integration of the Hurst factors into the PCRA, and hold that Gardner's ineffective assistance of appellate counsel claim is procedurally barred by the plain language of the Act.

¶13 A straightforward application of section 78-35a-106(1)(d) to the facts of this case supports this conclusion. Because the present petition was filed on May 12, 2000, nearly four years after the Act's effective date...