Noor v. State
| Decision Date | 18 January 2019 |
| Docket Number | No. 20160797,20160797 |
| Citation | 435 P.3d 221 |
| Parties | Osman Mohammed NOOR, Appellant, v. STATE of Utah, Appellee. |
| Court | Utah Supreme Court |
On Direct Appeal
Introduction
¶1 Osman Mohammed Noor, a pro se petitioner and Somalian refugee, timely filed a petition under the Post-Conviction Remedies Act (PCRA) seeking relief from his convictions. In his original petition, he claimed that relief under the PCRA was warranted because, among other reasons, his trial counsel was ineffective in failing to alert the district court to his lack of fluency with the English language and his cultural background. Before the district court determined the merits of his petition, the court appointed Mr. Noor pro bono counsel, but only after the one-year statute of limitations period on his PCRA petitions had expired. With permission from the court, pro bono counsel amended his petition by removing all previous claims from the original petition and replacing them with a claim that Mr. Noor’s trial counsel was ineffective for (1) failing to secure competent interpreters for Mr. Noor at trial, (2) failing to allow him to participate in his own defense, and (3) failing to inform him that he would be deported if convicted.
¶2 The State moved to dismiss the allegations raised in the amended petition, arguing that they were time-barred under the PCRA’s statute of limitations and that the amended claim in the amended petition did not arise out of the same conduct, transaction, or occurrence as the original claims, as required by rule 15(c) of the Utah Rules of Civil Procedure. The district court agreed with the State and held that the amended petition was time-barred under the PCRA.
¶3 On appeal, Mr. Noor argues that the district court erred in applying rule 15(c) to his amended petition because (1) the court had sufficient discretion to review his amended petition irrespective of whether the petition was filed after the one-year limitations period, and (2) rule 15(c) does not apply to amendments to PCRA petitions. Alternatively, he argues that if rule 15(c) does apply, his claim in the amended petition arises from the same conduct, transaction, or occurrence as the claim set forth in the original petition, and so his new claim is not time barred but instead relates back to the date of the original petition.
¶4 We hold that the district court did not err in concluding that rule 15(c) applies to proposed amendments made to PCRA petitions. Both the PCRA’s language and Utah caselaw support applying rule 15(c) ’s relation-back test to the PCRA and its procedural companion, rule 65C. This is consistent with recent amendments to the PCRA and rule 65C, which removed exceptions for time-barred petitions.
¶5 The district court did err, however, in concluding that the claim in Mr. Noor’s amended petition did not satisfy rule 15(c) and so was time barred under the PCRA. Mr. Noor’s amended petition did satisfy rule 15(c). He did not assert a new or different claim in his amended pleading and, under a liberal reading of the amendment, the State received notice of the factual grounds for his amended claim. Accordingly, we reverse and remand for proceedings consistent with this opinion.
¶6 Osman Mohammed Noor, a Somalian immigrant, entered his apartment manager’s dwelling without her permission. He did so after an altercation with the manager. Once inside, Mr. Noor removed his clothing, pulled the manager on top of him, and attempted to kiss her repeatedly. He also simulated oral sex over her clothing and touched her genitals under her pants. He performed all of these acts against her will. During the incident, the manager repeatedly demanded that Mr. Noor stop his advances and leave her apartment. She also called the police, who arrived just as the manager broke free from Mr. Noor and ran from her apartment.
¶7 Mr. Noor was arrested and subsequently charged with one count each of burglary, forcible sexual abuse, and lewdness. Because he had difficulty understanding and communicating in English, he was provided with several interpreters to assist him throughout the course of his criminal proceedings. He was also appointed counsel from the legal defender’s office, who communicated to Mr. Noor through the same interpreters.
¶8 In January 2011, Mr. Noor was tried by a jury on the three charges. He once again received assistance from two interpreters and representation by appointed counsel during the trial. At trial, the State put on two witnesses—the manager and the police officer who responded to her emergency call. After the State’s case in chief, Mr. Noor’s counsel moved for a directed verdict based on insufficient evidence, which motion the district court denied. The jury found Mr. Noor guilty on all three charges. The district court subsequently sentenced Mr. Noor to concurrent one- to fifteen-year prison terms for burglary and forcible sexual abuse, and the court ordered credit for time served on his lewdness conviction.
¶9 Following his conviction and sentence, Mr. Noor appealed the jury’s determination to the Utah Court of Appeals, again through his appointed counsel.2 On appeal, he argued that "the State failed to present sufficient evidence to prove that he had the requisite intent to commit lewdness or forcible sexual abuse."3 Specifically, he argued that "subjugation and domination of women is acceptable and even encouraged in the highly patriarchal Somali culture" and that because of this "his actions should be viewed only as a misguided attempt to express love and affection and that he had no intent to commit forcible sexual abuse or lewdness."4 He also claimed that his "lack of fluency in the English language and his intoxication impaired his ability to understand [the manager’s] demands that he stop his advances and leave her apartment."5
¶10 The court of appeals held that Mr. Noor had failed to preserve these arguments for appeal. It noted that Mr. Noor’s motion for directed verdict never mentioned the arguments he raised on appeal, and instead merely "move[d] for a directed verdict of acquittal based on insufficiency of evidence," which the district court immediately denied.6 "This exchange," the court reasoned, "did not apprise the district court that Noor was asserting that his cultural background, intoxication, and difficulties understanding English rendered him unable to form the requisite intent as to the crimes charged against him."7 The court therefore declined to address the merits of these arguments and affirmed all three convictions on July 12, 2012.8
¶11 Mr. Noor thereafter petitioned this court for certiorari, which we denied on October 17, 2012.9 He did not pursue an additional appeal to the United States Supreme Court. On November 5, 2013, Mr. Noor—this time without the assistance of counsel—filed a petition (Original Petition) for relief under the PCRA. He also simultaneously filed a request for court-appointed counsel to help him in pursuing his PCRA claims, which the district court denied on December 30, 2013. In his Original Petition, he made three claims for post-conviction relief, one of which is relevant to this dispute: "[d]enial of effective assistance of trial counsel" for his appointed counsel’s failure to "br[ing] to the trial court’s attention that [Mr. Noor’s] lack of fluency in English ... impaired his ability to understand the victim’s demands that he stop his advances" and for counsel’s failure to "br[ing] to the trial court’s attention the fact that [Mr. Noor’s] cultural background prevented him from forming the requisite intent" in this case. It is undisputed that Mr. Noor’s Original Petition was filed two months before the PCRA’s statutory deadline of January 15, 2014.10
¶12 In response to the Original Petition, the State filed its initial motion for summary judgment. Before filing an opposition to the State’s motion, Mr. Noor wrote the district court explaining his difficulty reading and writing in English and requested that the court appoint counsel to assist him with his PCRA claims. In response, on April 7, 2014, the court ordered that Mr. Noor be appointed pro bono counsel and requested the Utah State Bar’s assistance in making that appointment. On October 7, 2014, the first pro bono counsel entered an appearance on Mr. Noor’s behalf, but, due to a conflict, was allowed to withdraw as Mr. Noor’s counsel by the district court on December 8, 2014. Mr. Noor was then appointed his current pro bono counsel, Sam Alba, on March 4, 2015. At a status conference on April 27, 2015, the district court asked Mr. Alba if he "wanted time to file a supplemental or amended petition as counsel for Mr. Noor." Mr. Alba responded that he believed the Original Petition was not "adequate" and that he "need[ed] an opportunity to try and put some substance to it." The State did not object and the district court granted leave to amend the Original Petition.
¶13 Mr. Noor filed his amended petition (Amended Petition) on August 28, 2015—more than a year and seven months after the PCRA’s statute of limitations had run. The Amended Petition omitted all three claims for relief listed in the Original Petition. In their place, Mr. Noor asserted a per se ineffective assistance of counsel claim for his counsel’s alleged failure to "seek a competent interpreter for Mr. Noor at trial." He also alleged three other grounds for ineffective assistance of counsel, asserting that his counsel was ineffective in (1) failing to carry out his "obligation to make sure that Mr. Noor understood what was happening at trial,"(2) "not let[ting] Mr. Noor aid in his own defense prior to trial"; and (3) "failing to advise Mr. Noor of the risk of deportation if a jury found him guilty."
¶14 The State filed a motion for summary judgment seeking to dismiss all of Mr. Noor’s allegations in the Amended Petition on the basis that, in addition to other grounds, they were time-barred under the PCRA’s one-year statute of...
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