Kell v. State
| Docket Number | 20180788 |
| Decision Date | 21 December 2023 |
| Parties | Troy Michael Kell, Appellant, v. State of Utah, Appellee. |
| Court | Utah Supreme Court |
1
2023 UT 27
Troy Michael Kell, Appellant,
v.
State of Utah, Appellee.
No. 20180788
Supreme Court of Utah
December 21, 2023
Heard March 11, 2020
On Direct Appeal Sixth District Court, Sanpete County The Honorable Wallace A. Lee No. 180600004.
Jonathan T. Nish, Salt Lake City, B. Kent Morgan, Woods Cross, Jon M. Sands, Lindsey Layer, Alexandra H. LeClair, Eric Zuckerman, Phoenix, AZ, for appellant
Sean D. Reyes, Att'y Gen., Andrew F. Peterson, Erin Riley, Tanner R. Hafen, Aaron Murphy, Asst. Solics. Gen., Salt Lake City, for appellee
Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Pearce, Justice Petersen, Justice Hagen, and Justice Pohlman joined. [1]
OPINION
Durrant, Chief Justice
Introduction
¶1 Troy Kell, while serving a life sentence for murder, stabbed another inmate to death in 1994. Kell was convicted of aggravated murder, a capital offense, and sentenced to death. We affirmed his conviction and sentence in 2002.[2]
¶2 After his conviction was affirmed, Kell filed a petition for post-conviction relief. The district court dismissed his petition, and in 2008 we affirmed that dismissal.[3]
¶3 Kell later filed a motion under rule 60(b) of the Utah Rules of Civil Procedure to set aside the dismissal of his petition for post-conviction relief. The district court denied his motion, and in 2012 we affirmed that denial.[4]
¶4 Kell is now before this court for the fourth time. He appeals the district court's grant of summary judgment and dismissal of his second petition for post-conviction relief, in which he proffered evidence that was newly discovered in 2012. In that year, Kell's federal habeas corpus attorneys interviewed jurors from his trial and discovered troubling facts. Three jurors remembered communicating with the judge during sentencing deliberations without Kell or either party's counsel present, and one of those jurors remembered the judge telling the jurors that it was Kell's burden to convince the jury that his life should be spared. This evidence is the basis of Kell's petition now at issue.
¶5 But there is a glaring problem with Kell's petition. His attorneys discovered this new evidence in 2012, yet Kell did not file his petition in state court until 2018, over five years later. The Utah Legislature has limited the ability of individuals to seek post-conviction relief through the Post-Conviction Remedies Act (PCRA),[5]and we have adopted the PCRA's limitations as part of our court's rules of procedure under rule 65C of the Utah Rules of Civil Procedure. Under the PCRA and rule 65C, Kell's current petition is
subject to dismissal based on time and procedural limitations. Applying these limitations, the district court dismissed Kell's petition.
¶6 Kell argues on appeal that the district court erred in granting the State's summary judgment motion and dismissing his petition because (1) the PCRA's limitations should not apply to preclude his claim, since his delay in filing his petition resulted from the ineffective assistance of initial post-conviction counsel; and (2) applying the PCRA's time and procedural bars to dismiss his petition violates his rights under the Suspension Clause,[6] Due Process Clause,[7] and Open Courts Clause[8] of the Utah Constitution.
¶7 The State counters that the district court correctly granted summary judgment and dismissed Kell's petition because Kell's arguments do not overcome his five-and-a-half-year delay in bringing this claim after discovering the alleged improper communication between the trial judge and jurors. We agree with the State and affirm.
Background
¶8 In July 1994, Kell, an inmate serving a life sentence at Central Utah Correctional Facility, stabbed fellow inmate Lonnie Blackmon sixty-seven times in the eyes, face, neck, back, and chest until he bled to death.[9] Kell is a known white supremacist with a history of "race-related altercations," and Blackmon was African American.[10] Kell's murder of Blackmon was recorded on video.[11] Kell was convicted of aggravated murder by a unanimous jury and sentenced to death.[12] We affirmed Kell's conviction and sentence in 2002.[13]
¶9 Kell has sought relief from his sentence in state and federal courts for over two decades. In 2003, he filed his first petition for post-
conviction relief in state court.[14] The district court dismissed his petition, and in 2008 we upheld that decision.[15] In 2009, "Kell, representing himself, filed a 60(b) motion, asking the district court to relieve him from its earlier dismissal of his petition for postconviction relief" on the ground that he had been denied the right to effective assistance of post-conviction counsel.[16] The district court denied Kell's rule 60(b) motion, and in 2012 this court affirmed the decision on the ground that Kell could not use a 60(b) motion as a work-around of the PCRA's limitations.[17]
¶10 Kell was appointed federal habeas counsel in 2007, and that counsel has represented him to this day. In 2009, Kell filed his initial habeas corpus petition in federal court. He then successfully sought a stay of federal proceedings while the rule 60(b) motion proceedings continued in state court.
¶11 In May 2012, Kell's federal habeas counsel spoke with jurors and obtained signed declarations as part of the investigation for his federal habeas corpus petition. Through this investigation, Kell's counsel discovered that three jurors remembered the judge entering the jury deliberations and speaking with the jury, and one of those jurors remembered the judge telling them that "Kell's attorneys had to show [the jury] that Kell's life should be spared."
¶12 This new evidence was first raised in court when, after his federal proceedings resumed, Kell filed an amended federal habeas petition on January 14, 2013. His amended petition included a new claim based on the juror declarations. Specifically, Kell alleged that "the judge in [his] criminal trial improperly instructed the jury during its deliberations without notice to either party" and that "this instruction unconstitutionally shifted the burden of determining a death sentence from the prosecution to the defense."
¶13 Kell and the State stipulated to a case management schedule in the federal proceedings. As part of that schedule, the parties
"agreed to address discovery and [hold] an evidentiary hearing prior to addressing other issues." The discovery and evidentiary hearing process continued through June 2017. In August 2017, after having resolved discovery and evidentiary issues, Kell sought a "Rhines stay" in his federal proceedings to exhaust in state court the new claim based on the juror declarations.[18] The district court granted the Rhines stay, finding that Kell had good cause for failing to exhaust his claim in state court, that his claim was potentially meritorious, and that he had not engaged in intentional delay.
¶14 On January 16, 2018, once the Rhines stay was in place and federal counsel had received permission to represent Kell at the state level, Kell filed a petition for post-conviction relief in state court. In the petition, Kell claimed, based on the evidence uncovered by his federal counsel in 2012, that his sentence should be overturned because the trial court committed prejudicial error when it gave an unconstitutional supplemental jury instruction outside the presence of Kell and his counsel.
¶15 The State moved for summary judgment on Kell's petition, asserting that it was subject to the PCRA's time and procedural bars. Under the PCRA's time bar, "[a] petitioner is entitled to relief only if the petition is filed within one year after the day on which the cause of action has accrued."[19] And claims based on new evidence accrue on "the date on which petitioner knew or should have known, in the exercise of reasonable diligence, of evidentiary facts on which the petition is based."[20] Under the PCRA's procedural bar, "[a] petitioner is not eligible for relief . . . upon any ground that . . . 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 postconviction relief."[21]
¶16 The district court concluded that Kell's claim accrued either in 2012-when he had actual knowledge of the evidence on which his
claim is based-or in 2002-when he reasonably could have acquired the evidence after his conviction was affirmed on direct appeal. So, the court concluded that, whether the claim accrued in 2002 or 2012, over a year had passed, which triggered the time bar. The district court also determined that the procedural bar applied because, as Kell conceded, Kell could have but did not bring this claim as part of his initial petition for post-conviction relief. Accordingly, the district court granted the State's motion for summary judgment and dismissed Kell's petition.
¶17 Kell appealed the district court's decision to this court. In his original briefing, he challenged the district court's grant of summary judgment and dismissal of his petition, arguing that (1) his delay in filing the petition should be excused because it resulted from the ineffective assistance of his initial post-conviction counsel and at the time he had a statutory right to effective assistance of post-conviction counsel, (2) his noncompliance with the PCRA should be excused under the "egregious injustice" exception to the PCRA referenced in Gardner v. State[22] and Winward v. State,[23] and (3) the PCRA's requirements should be bypassed under the "traditional common law authority over collateral proceedings."
¶18 While Kell's appeal was pending, we issued our opinion in Patterson v. State, which identified the source and scope of Utah courts' constitutional authority to issue writs of habeas corpus and clarified the interaction between that constitutional authority and...
To continue reading
Request your trial