Norris v. Fourth District Court, No. 10-4030 (10th Cir. 6/7/2010)
| Decision Date | 07 June 2010 |
| Docket Number | No. 10-4030.,10-4030. |
| Parties | RICHARD NORRIS, Petitioner-Appellant, v. FOURTH DISTRICT COURT, Provo, Utah; ATTORNEY GENERAL OF THE STATE OF UTAH, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D.C. No. 2:08-CV-00044-DN) (D. Utah.).
Before BRISCOE, Chief Judge, TACHA, and O'BRIEN, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Utah state inmate Richard Norris, appearing pro se and seeking to proceed in forma pauperis, requests a certificate of appealability ("COA") in order to challenge the district court's denial of his petition for a writ of habeas corpus which sought relief pursuant to 28 U.S.C. § 2254. For the following reasons, we GRANT Norris leave to proceed in forma pauperis, DENY his request for a COA, and DISMISS this matter.
In 2002, Norris entered an unconditional guilty plea to three counts of third degree felony communications fraud in violation of Utah Code Ann. § 76-10-1801(1)(c).1 Despite the unconditional nature of his plea, Norris appealed his convictions to the Utah Court of Appeals ("UCA"), arguing that § 76-10-1801, as it then read,2 was both unconstitutionally overbroad and unconstitutionally vague in its use of the terms "artifice," communicate," and "anything of value."
In addressing Norris' claims, the UCA first noted its view that Norris' "unconditional guilty plea d[id] not operate as a waiver of a facial constitutional challenge to [§ 76-10-1801], because such a challenge is jurisdictional in nature." State v. Norris, 97 P.3d 732, 737 (Utah Ct. App. 2004) ("Norris I"). The UCA went on to affirm Norris' convictions, rejecting the merits of each of his constitutional challenges. On certiorari, the Utah Supreme Court reversed the UCA, but nonetheless affirmed Norris' convictions, holding that "an unconditional guilty plea does waive a defendant's right to challenge the constitutionality of a statute . . . ." State v. Norris, 152 P.3d 305, 306 (Utah 2007) ("Norris II").
Norris subsequently filed a petition for a writ of habeas corpus in federal district court, seeking relief pursuant to 28 U.S.C. § 2254. Therein, Norris once again alleged that § 76-10-1801 is unconstitutionally overbroad and vague on its face. Norris also claimed that the information by which he was charged "did not provide sufficient notice as to the alleged conduct that violated the statute . . . thus inhibiting [his] ability to prepare his defense." See ROA, Vol. 1, at 50. The district court denied Norris' petition based upon its determination that the claims raised therein are procedurally defaulted given the Utah Supreme Court's affirmance of Norris' convictions. Norris now seeks to appeal the district court's ruling.
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a COA is a jurisdictional prerequisite to our review of the denial of a § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A); Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006).
When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim[s], a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).
As previously noted, the district court concluded that the claims Norris raised in his § 2254 petition are procedurally defaulted. To be procedurally defaulted at the federal habeas level, a claim must have been denied on "adequate and independent" state procedural grounds by the last state court to issue a reasoned opinion which addressed the claim. See Fairchild v. Workman, 579 F.3d 1134, 1141 (10th Cir. 2009) (quotation and citation omitted). State procedural grounds are considered "independent" if they rely on state, rather than federal law and are considered "adequate" "if they are strictly or regularly followed and applied evenhandedly to all similar claims." Id. (quotations and citation omitted).
In concluding that Norris' claims are procedurally defaulted, the district court noted its belief that "the Utah Supreme Court dismissed [Norris'] appeal based on the well-established and regularly followed procedural rule barring review of convictions obtained through a knowing, voluntary and unconditional guilty plea." Dist. Ct. Order at 2 (emphasis added). Construing Norris' application for a COA liberally, see Clark, 468 F.3d at 713 n.1 (), he contends, inter alia, that jurists of reason would debate the district court's description of the Utah procedural rule in question. More specifically, Norris argues that at the time of his appeal, the procedural grounds in question were neither "well-established" nor "regularly followed" and accordingly, that they were insufficiently "adequate" or "independent" to procedurally default his putative claims.
As an initial matter, we disagree with Norris' suggestion that jurists of reason would debate the district court's conclusion that he has procedurally defaulted his claim that the information by which he was charged was insufficiently detailed. Because this claim is obviously non-jurisdictional in nature, see State v. Canfield, 917 P.2d 561, 562 (Utah 1996) (per curiam); cf. United States v. Cotton, 535 U.S. 625, 631 (2002) (), it is clear that the procedural grounds relied on by the Utah Supreme Court in dismissing this claim were both adequate and independent of federal law, see State v. Brocksmith, 888 P.2d 703, 706 (Utah Ct. App. 1994) .
Likewise, we disagree with Norris' contention that jurists of reason would debate the district court's conclusion that the procedural grounds relied upon by the Utah Supreme Court in dismissing Norris' putative overbreadth and vagueness challenges to § 76-10-1801 are independent of federal law. In Norris I, the UCA based its view that "following a guilty plea, a defendant c[an] raise on appeal that he was prosecuted under an unconstitutional statute," see Norris I, 97 P.3d at 736 (), upon its interpretation of federal law, not state law. And, in reversing that decision, the Utah Supreme Court did not correct the UCA on its interpretation of federal law. Rather, the Utah Supreme Court simply noted that in Utah, "an unconditional guilty plea does waive a defendant's right to challenge the constitutionality of a statute . . . ." Norris II, 152 P.2d at 306. Thus, it is apparent that the procedural grounds relied upon by the Utah Supreme Court in dismissing Norris' putative overbreadth and vagueness challenges to § 76-10-1801 are a construct of state, rather than federal law.
Norris' contention that jurists of reason would debate the adequacy of the procedural grounds upon which the Utah Supreme Court relied in dismissing his putative overbreadth and vagueness challenges to § 76-10-1801 does, however have some traction. As noted previously, state procedural grounds are considered adequate only if they have been "strictly or regularly followed" and applied "evenhandedly to all similar claims." See Fairchild, 579 F.3d at 1141 (quotations and citation omitted). And, it is the State which bears the burden of establishing the adequacy of the procedural bar because "it is undoubtedly in a better position to establish the regularity, consistency and efficiency with which it has applied its own rules in the past." Id. (quotation, citation and alteration omitted).
In their briefing to the district court, the respondents cited only a single UCA decision which spoke directly to the adequacy of the procedural grounds in question. See Resp. to Petition, Aplt. App. at 109 3 The district court, in turn, cited no Utah decisions in which the procedural grounds in question had been applied, save Norris II. See ROA, Vol. 1, at 217. Due to the paucity of authority cited by the respondents and relied upon by the district court, jurists of reason would debate the district court's conclusion that the Utah procedural grounds in question are sufficiently "adequate" such that Norris' putative overbreadth and vagueness claims are procedurally defaulted. See, e.g., Del Vecchio v. Ill. Dep't of Corrs., 31 F.3d 1363, 1381 (7th Cir. 1994) ( ); Hunter v. Duckworth, 741 F. Supp. 1338, 1341 (N.D. Ind. 1989) rev'd on other grounds Hunter v. Clark, 906 F.2d 302 (7th Cir. 1990) rev'd Hunter v. Clark, 934 F.2d 856 (7th Cir. 1991) (en banc).
As the Supreme Court has noted, however, "[d]etermining...
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