Gardner v. State Of Utah, 20100436.

CourtSupreme Court of Utah
Writing for the CourtDURRANT, Associate
Citation2010 UT 46,234 P.3d 1115
PartiesRonnie Lee GARDNER, Petitioner and Appellant,v.STATE of Utah, Respondent and Appellee.
Docket NumberNo. 20100436.,20100436.
Decision Date14 June 2010

234 P.3d 1115
2010 UT 46

Ronnie Lee GARDNER, Petitioner and Appellant,
STATE of Utah, Respondent and Appellee.

No. 20100436.

Supreme Court of Utah.

June 14, 2010.

234 P.3d 1116
Andrew Parnes, Ketchum, ID, Megan B. Moriarty, Therese M. Day, Salt Lake City, for petitioner.

Mark L. Shurtleff, Att'y Gen., Thomas B. Brunker, Erin Riley, Asst. Att'ys Gen., Salt Lake City, for respondent.

DURRANT, Associate Chief Justice:

¶ 1 In 1985, Ronnie Lee Gardner was convicted of first degree murder and sentenced to death. For the past twenty-five years, his execution has been stayed pending resolution

234 P.3d 1117
of his state and federal post-conviction appeals. The most recent of those actions was finally resolved on March 8, 2010, when, after fifteen years of federal court review, the United States Supreme Court declined to review the decision of the Tenth Circuit Court of Appeals. On March 10, 2010, the State applied for an execution warrant so that it could carry out Mr. Gardner's sentence; the warrant was issued shortly thereafter. After that warrant was issued, Mr. Gardner filed this Petition for Post-Conviction Relief in district court.1 The petition contains constitutional challenges to Mr. Gardner's sentence that he did not raise in any prior proceeding. The State moved for summary judgment on all of Mr. Gardner's claims on the grounds that the claims are barred under the statutes governing post-conviction relief both because the claims are untimely and because Mr. Gardner had an opportunity to raise the claims in a prior proceeding and failed to do so. The district court agreed with the State's arguments and granted the State's motion for summary judgment.

¶ 2 Mr. Gardner appeals from the district court's order granting summary judgment in favor of the State.2 He argues that the district court incorrectly assessed his ability to bring his claims prior to the conclusion of his federal action and that, consequently, the court erred in concluding that his claims were barred. Mr. Gardner also argues that the district court had authority to make an exception to the rules that bar his claims, and that it erred in failing to exercise that authority because not reviewing the merits of the claims will result in egregious injustice. We agree with the district court's conclusion that Mr. Gardner's claims could have been raised in prior proceedings many years ago. We also conclude that Mr. Gardner has failed to demonstrate any injustice that would require us to set aside the statutory and procedural rules that control judicial review of his claim. Therefore, we affirm the district court's grant of summary judgment in favor of the State.


¶ 3 Our recitation of the facts and procedural history of this case draws liberally from the federal magistrate judge's Report and Recommendation in Mr. Gardner's federal habeas corpus petition, the Tenth Circuit's decision in Mr. Gardner's federal habeas corpus appeal, and our own decisions in Mr. Gardner's prior appeals to this court. Because Mr. Gardner's claims in this petition center on the sufficiency of the process he has been afforded and the evidence considered by the courts that have reviewed his claims, and given the profound importance of the issues involved, we set forth the background of this case in some detail.


¶ 4 Mr. Gardner has been sentenced to death for the murder of Michael Burdell, an attorney Mr. Gardner shot and killed while attempting to escape from prison custody at a Salt Lake City courthouse. On April 2, 1985, Mr. Gardner was transported from the maximum security unit at the Utah State Prison to the Metropolitan Hall of Justice in Salt Lake City. Scheduled to appear in court to face charges for second degree murder, Mr. Gardner instead attempted to carry out a plan to escape from custody. As he entered the courthouse basement with his guards, a female accomplice handed Mr. Gardner a gun, which he turned on the

234 P.3d 1118
guards. Mr. Gardner and the guards exchanged gunfire and Mr. Gardner was shot in the chest and lung.3 The guards retreated to the parking lot, and Mr. Gardner entered the archives room, looking for a way out of the building. A court clerk, a prison officer, and three attorneys were also in the archives room. Mr. Gardner said he had been “shot” and “hit bad” and went back into the lobby. When he left, two of the attorneys, Mr. Burdell and Robert Macri, attempted to hide behind the open door to the archives room. But Mr. Gardner reentered the archives room and noticed the attorneys behind the door. Mr. Gardner walked to within one-and-a-half to two feet of them, pointed the gun at Mr. Macri and cocked the hammer. Mr. Burdell exclaimed, “Oh, my God!” Mr. Gardner said, “Oh Fu--,” turned the gun to Mr. Burdell, and after what one witness described as a “definite pause,” fatally shot Mr. Burdell in the head. Mr. Gardner then shot Mr. Burdell a second time.

¶ 5 Mr. Gardner then forced the prison officer in the archives room to accompany him up the stairs to the second-floor lobby. As Mr. Gardner crossed the lobby, a uniformed bailiff was coming downstairs to investigate the commotion. Mr. Gardner shot and seriously wounded the bailiff and then proceeded up the stairs. On the next floor, Mr. Gardner took hostage a vending machine serviceman and forced the serviceman to accompany him outside the building. As Mr. Gardner exited the courthouse, the serviceman broke free and dived through a court service teller's window back inside the building. Once outside, Mr. Gardner, wounded, still shackled, and surrounded by police, threw down his gun and surrendered.


¶ 6 At his trial for the murder of Mr. Burdell, Mr. Gardner was represented by Andrew and James Valdez of Salt Lake Legal Defenders Association. Their strategy was to argue that Mr. Gardner was under such pain and physical distress after being shot that shooting Mr. Burdell was an unintentional reaction-that it was an accident or, at most, done with reckless disregard for human life. Nevertheless, the jury convicted Mr. Gardner of first degree murder, attempted first degree murder, aggravated kidnaping, escape, and possession of a dangerous weapon by an incarcerated person.

¶ 7 At the penalty phase of the trial, the State presented evidence that Mr. Gardner “posed a continuing threat even while incarcerated and that previous attempts to deter [Mr. Gardner's] criminal behavior had failed.” 4 Witnesses testified for the State about criminal behavior Mr. Gardner had engaged in since becoming incarcerated.5 For instance, the jury heard testimony from twelve State witnesses that corroborated each of the following instances of conduct: Mr. Gardner escaped from the minimum security facility in 1981; 6 after his escape he stabbed and beat a man at his former sister-in-law's house without having been provoked; 7 still out of custody after escaping from prison, he instigated a shootout at a friend's house that resulted in his arrest; 8 after the shootout, he told the arresting deputy that he knew the deputy's family and would have them killed; 9 also in 1981, he attempted to escape from the medium security facility at the Utah State Prison; 10 in 1984, after an incident in medium security

234 P.3d 1119
caused him to be transferred to maximum security, he attacked a member of the transporting tactical squad with a screwdriver, only complied with officers' orders after being threatened with a stun gun, and, even then, threw his head back hard, cracked an officer's nose, and kicked at the officers, bringing three of them down in the process; 11 also in 1984, upon hearing from an officer that he would be transferred to maximum security, Mr. Gardner spit in the officer's face at least three times, punched the wall, smashed his television by throwing it on the floor, and threatened to kill the officer and his children; 12 also in 1984, Mr. Gardner escaped from custody after being examined at the University Hospital by attacking his guard, knocking him down, taking his loaded gun, pointing it at his head, and forcing him to remove Mr. Gardner's restraints-all of which resulted in lost vision in one of the guard's eyes, a nose broken in sixteen places, four ruptured discs in the guard's back, and emergency surgery where physicians rebuilt the guard's eye socket from one of his ribs, placed a rod through his face to anchor his cheekbones apart, and wired the bones in his face together; 13 also during this escape, Mr. Gardner hijacked a motorcycle-riding medical student at gunpoint and forced the medical student to drive him to a nearby apartment building where, in the laundry room, Mr. Gardner took the medical student's clothes and his wallet, put on the clothes, hit the student with the gun and kicked him while he was on the ground, and rode off on the student's motorcycle; 14 in 1985, Mr. Gardner was to be booked into jail, and as the officer approached, he kneed her in the groin; 15 Mr. Gardner was responsible for the 1984 murder of Mel Otterstrom, who was tending bar at the Cheers Tavern.16

¶ 8 Defense counsel called six witnesses to testify in mitigation, although his trial counsel would later testify that Mr. Gardner prevented them from calling other witnesses and especially certain family members that might have presented evidence about his family background, his intellectual limitations, and possible physical and sexual abuse he suffered as a child. What the jury did hear was evidence that Mr. Gardner's older brother went to prison while they were still young; that Mr. Gardner had family problems as a child; that Mr. Gardner was taken from his home and put into state custody when he was eight or nine years old; that around that time, Mr. Gardner began missing school and inhaling (“huffing”) gas; that the State moved the young Mr. Gardner from placement to placement, including stays at shelter...

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