Parsons v. Galetka, 95-CV-292-S.

Citation57 F.Supp.2d 1151
Decision Date15 July 1999
Docket NumberNo. 95-CV-292-S.,95-CV-292-S.
PartiesJoseph M. PARSONS, Petitioner, v. Hank GALETKA, Respondent.
CourtUnited States District Courts. 10th Circuit. United States District Court of Utah

Gregory J. Sanders, Kirk G. Gibbs, Kipp & Christian, Salt Lake City, Utah, Ronald J. Yengich, Yengich Rich & Xaiz, Salt Lake City, Utah, for petitioner.

Kris C. Leonard, Thomas B. Bunker, Utah Attorney General's Office, Salt Lake City, Utah, David E. Yocum, Office of the District Attorney, Salt Lake City, Utah, for respondent.

ORDER

SAM, Chief Judge.

The petitioner, Joseph Mitchell Parsons, an inmate at the Utah State Prison, filed this action for a writ of habeas corpus under 28 USC § 2254 seeking relief from his conviction in the Utah courts for First Degree Murder and a sentence of death. The case was referred to the magistrate judge under 28 USC § 2254. The magistrate judge made a report and recommendation that the petition for habeas corpus be denied. No objection has been taken to the report and recommendation. Parsons has indicated to the court that he does not wish to pursue further federal remedies. The court has reviewed the file and hereby adopts the report and recommendation of the magistrate judge. Therefore,

IT IS HEREBY ORDERED the petition of Joseph Mitchell Parsons for a writ of habeas corpus under 28 USC § 2254 is DENIED.

REPORT & RECOMMENDATION

BOYCE, United States Magistrate Judge.

Petitioner, Joseph M. Parsons, an inmate at the Utah State Prison (USP) at Draper has filed a petition for habeas corpus under 28 USC § 2254. The petitioner was convicted on a plea of guilty of murder in the first degree, aggravated robbery, and theft of an operable motor vehicle in Fifth District Court, Iron County, State of Utah, which offenses allegedly occurred August 31, 1987. He was sentenced to death on January 29, 1988 after a jury trial on the capital sentence.

Petitioner appealed his conviction to the Utah Supreme Court which affirmed the conviction and sentence. State v. Parsons, 781 P.2d 1275 (Utah, 1989). On petitioners's appeal to the Utah Supreme Court, he challenged the constitutionality of the Utah capital offense statute as denying due process and violating double jeopardy. The double jeopardy argument was rejected and the claim of denial of due process was also rejected, both results based on the fact that defendant entered an unconditional plea of guilty, thereby waiving defects in the jury process or in the alleged unconstitutional manner of determining guilt. No challenge was made to the petitioner's plea of guilty before the Utah Supreme Court, 781 P.2d at 1278, or in any other proceeding.

Petitioner claimed defects in the sentencing proceeding conducted under Utah Code Ann. § 76-3-207. Petitioner sought to have the death sentence vacated and a life sentence entered. Id. at 1279. The Utah Supreme Court found the standards applied in the trial court were proper and in accord with the Utah Supreme Court's instructions in State v. Wood, 648 P.2d 71, 83-85 (1982). The petitioner challenged the special verdict form submitted to the jury whereby it was required to answer yes or no as to whether three aggravating circumstances were proved by the evidence beyond a reasonable doubt. The Utah Supreme Court upheld the use of the special verdict form. Id. at 1280.

Petitioner challenged the discriminatory application of the death penalty as to him.1 The argument was actually an argument for a proportionality review which is not constitutionally required, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), and has not been adopted by the Utah Supreme Court as a part of the Utah death penalty procedure.2

The petitioner also challenged the actions of the trial judge, the admission of other aggravating circumstance evidence beyond the charged aggravating conduct, alleged improper influence because another district judge sat in the courtroom and watched his son who was prosecuting the case, and alleged improper closing argument by the prosecutor. All of these matters were rejected, by the Utah Supreme Court as a basis for a reversal.

Petitioner raised an issue as to contact between a juror and a witness. Id. at 1284. The petitioner had waived any prejudice claim on that matter in the state trial court, however, the Utah Supreme Court said it would consider the merits of the claim because of the death verdict. A record on the contact issue was made in the trial court. Defense counsel indicated he was not sure there was any prejudice and he would not move for a mistrial. The Utah Supreme Court, however, did not decide the matter of prejudice but found that petitioner had invited any error and could not make a challenge for reversal based on the incident.

Finally, the petitioner raised a claim of instructional error on the basis of failure to give a "two reasonable hypotheses" instruction, which claim was rejected as contrary to settled Utah law.3

Thereafter, petitioner pursued a petition for habeas corpus relief in Third District Court, State of Utah.4 That court denied habeas corpus relief and the petitioner's case was again appealed to the Utah Supreme Court. The Utah Supreme Court affirmed the denial of post conviction relief. Parsons v. Barnes, 871 P.2d 516 (Utah, 1994). The petitioner claimed ineffectiveness of trial counsel. Eight allegations of ineffectiveness were raised on appeal before the Utah Supreme Court.

First, it was contended petitioner was denied due process of law under the Sixth and Fourteenth Amendments to the United States Constitution because the Iron County attorney, after charges had been filed, took sworn recorded statements from witnesses, akin to depositions, without notice to and attendance by petitioner or counsel. Second, ineffectiveness was claimed because defense counsel allegedly advised petitioner to plead guilty as charged to capital homicide without obtaining any meaningful benefit. Third counsel failed to adequately explore the contact between a juror and a prosecution witness. Fourth, counsel failed to file discovery motions or formal requests for discovery material. Fifth, defense counsel advised Parsons that he could only waive his preliminary hearing by pleading guilty as charged. Sixth, counsel failed to spend adequate time with petitioner in order to prepare a defense. Seventh, it was asserted that defense counsel was ineffective because he failed to object to the verdict form that asked for the jury's findings on three aggravating circumstances where only one existed under the law, and eighth, counsel failed to explore the need for and ask for a change of venue.

The opinion of the Utah Supreme Court treated the "deposition" issue, as argued by appellate counsel, as raising a due process right for counsel and the petitioner to be present and a right of confrontation at the time the statements were taken. 871 P.2d at 518-521. The Utah court observed that on the same day that petitioner was charged, the prosecutor took statements from two witnesses under oath. One was from the victim's wife, Beverly Ernest, and the other from Chad Williams, an employee at a convenience store to which petitioner had taken the victims' vehicle, changed his clothes, cleaned out the car, and discarded the victim's personal property. The Utah Supreme Court reviewed the merits of Parson's arguments. Id. at 519. The court concluded that depositions were not taken, as could be done under Rule 14, Utah R.Cr.P. The action was an investigation and was only to take sworn statements by a careful prosecutor/investigator. The court concluded this was not a violation of due process and that Parsons benefitted by the preservation of the evidence when it was fresh in the minds of the witnesses. Id. at 520.

The court found there was no Sixth Amendment violation of the right to confrontation since the live witnesses were called at trial. The court also found any threat of a possible perjury prosecution did not show any chilling effect on their testimony and the oath probably had its "intended effect" of obtaining the truth. Id. at 520. The statements were not introduced into evidence at trial.

The court's decision on the claim of denial of counsel at the taking of the sworn statements did not consider whether any right to counsel existed, at that time but that there was no indication the benefit of counsel, at that time, would have been different from the cross-examination at the sentencing hearing. Id. at 521. The court found no constitutional violation and then addressed the issues of ineffective assistance of counsel.

The Utah Supreme Court stated there were thirteen claims of ineffectiveness of counsel, made in the habeas trial court but, as noted before, the petitioner's post conviction brief on appeal, listed eight claims and those were all the claims presented on appeal from the post conviction hearing.

A more specific discussion of the Utah Supreme Court's post conviction ruling is required. On the first issue, the failure of defense counsel to object to the taking of sworn statements by the prosecutor was alleged as a basis for relief. However, because the Utah Court found there was nothing wrong in that procedure, the failure to object could not be a basis for a claim of ineffectiveness of counsel.

The court addressed the claim of the alleged lack of substantial investigation by counsel. The Utah Supreme Court stated that petitioner has "consistently maintained" he reacted violently to the victim's homosexual advances and petitioner claimed there was inadequate investigation and an autopsy should have been requested and a private investigator provided. The court noticed there was no evidence of the victim being a homosexual and the evidence was of the victim's heterosexual relationships. The Utah court found petitioner had not met the prejudice prong requirement for relief under Strickland v. Washington, ...

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