Utah Attorney General's response in Lafferty case

THOMAS B. BRUNKER, #4804 ANDREW F. PETERSON, #10074 Assistant Attorneys General SEAN D. REYES, #7969 Utah Attorney General Heber Wells Bldg. 160 East 300 South, 6th Floor P.O. Box 140854 Salt Lake City, Utah 84114-0854 Telephone: (801) 366-0180 [email protected] [email protected] Respondent’s counsel

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

RONALD WATSON LAFFERTY, Petitioner, v. ALFRED BIGELOW, Warden, Respondent.

2:07-CV-322 DB

RESPONSE IN OPPOSITION TO PETITIONER’S MOTION TO STAY AND HOLD HABEAS PROCEEDINGS IN ABEYANCE

Judge Dee Benson

Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 of 48

mailto:[email protected]

mailto:[email protected]

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TABLE OF CONTENTS

STATEMENT OF RELIEF SOUGHT ........................................................................................... 1 STATEMENT OF THE ISSUES.................................................................................................... 1 INTRODUCTION .......................................................................................................................... 2 BACKGROUND ............................................................................................................................ 4 ARGUMENT .................................................................................................................................. 7 I. LAFFERTY HAS NOT SHOWN THAT HE SHOULD BE EXCUSED FROM HIS

FAILURE TO EXHAUST HIS CLAIMS. ............................................................................... 9

A. Lafferty fails to show good cause for failing to exhaust his Brady claims (claims 3 & 4) because he has not shown that he could not present them to the state court with his first post-conviction petition or in the nearly seven years this case has been pending. ............. 10

B. Lafferty fails to show good cause for failing to exhaust his incomplete court records claim

(claim 5) because any missing records were always apparent. ........................................... 15

C. Lafferty fails to show good cause for failing to exhaust his claim that he was denied his right to self-representation because it does not establish ineffective assistance of trial counsel within the meaning of Martinez. ............................................................................ 24

II. LAFFERTY’S CLAIMS ARE NOT POTENTIALLY MERITORIOUS BECAUSE STATE

TIME AND PROCEDURAL BARS WILL PRECLUDE RELIEF. ...................................... 31

A. Lafferty’s claims will be time barred under state law. ....................................................... 32

1. Lafferty’s Brady claims (claims 3 and 4) will be time barred because he has known about them since at least 2008 when he raised them in his habeas petition. .................. 33

2. Lafferty’s incomplete record claim (claim 5) will be time barred because the absence of

any transcripts has been apparent since at least 2001, during his direct appeal. ............ 35

3. Lafferty’s trial counsel ineffective assistance claims (7 and 33) will be time barred because his causes of action accrued in 2001, when the Supreme Court denied certiorari. ......................................................................................................................... 36

B. Lafferty’s claims will be procedurally barred under state law. .......................................... 36


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C. The state court will bar Lafferty’s claims, contrary to the repealed and overruled authorities Lafferty relies on. .............................................................................................. 39

III. LAFFERTY HAS NOT SHOWN THAT HIS REQUEST FOR A STAY DOES NOT

AMOUNT TO INTENTIONAL DELAY OR ABUSIVE LITIGATION TACTICS. ........... 42 CONCLUSION ............................................................................................................................. 44


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Respondent, through counsel, opposes Lafferty’s motion to stay the

current habeas proceedings.1

STATEMENT OF RELIEF SOUGHT

Lafferty identified his unexhausted claims six years before filing this

motion to stay the federal case while he returns to state court to exhaust them.

This Court should deny the Rhines stay and abeyance.

STATEMENT OF THE ISSUES

1. Has Lafferty demonstrated good cause for his failure to exhaust his

claims in state court?

2. Has Lafferty shown that his claims are potentially meritorious

where the State courts will deny them on non-merits procedural grounds?

3. Has Lafferty shown that he has not engaged in abusive litigation

tactics or intentional delay where he has unnecessarily waited approximately six

years after first identifying the unexhausted claims before asking the Court for a

Rhines stay.

1 Respondent has filed a motion for leave to file an overlength memorandum. See doc. no. 361 .


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INTRODUCTION

Lafferty asks the Court to stay the federal proceeding and hold his federal

habeas corpus petition in abeyance pursuant to Rhines v. Weber, 544 U.S. 269, 273-

75 (2005). He asks for the stay to prosecute through the state courts six specific

claims he concedes are unexhausted. These claims include (a) claims that the

State failed to preserve and disclose material exculpatory evidence (claims 3 & 4);

(b) claims that the state court failed to preserve a complete record of the state

trial proceedings (claims 5 & 33); and (c) two claims of ineffective assistance of

trial and post-conviction counsel (claims 7 & 33). See doc. no. 350 at 3.

Rhines permits a stay only if Lafferty shows 1) “good cause” excuses his

failure to exhaust his federal claims in state court; 2) his unexhausted claims are

“potentially meritorious;” and 3) he has not engaged in “abusive litigation tactics

or intentional delay.” Rhines, 544 U.S. at 277-78. Lafferty has not shown that he

meets those preconditions.

Lafferty cannot establish good cause for his failure to exhaust in state

court. He suggests variously that post-conviction counsel’s ineffective assistance

can establish Rhines “good cause,” and that he cannot be faulted for the State’s

alleged suppression of favorable evidence or the state court’s failure to preserve

a complete record of proceedings. Lafferty fails to show cause on the Brady


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claims because he offers no explanation why he could not have presented them

to the state court during his post-conviction proceedings. His inadequate court

record claim was apparent even sooner, and could have been remedied during

direct appeal, or at least raised in post-conviction as an appellate ineffective

assistance claim. And because it is not a trial counsel ineffective assistance claim,

the Martinez exception does not apply. Finally, Lafferty fails to establish

ineffective assistance of post-conviction counsel for failing to exhaust his two

trial counsel claims; he merely infers ineffective assistance from the bare fact that

post-conviction counsel omitted the claims. This is not enough to show

ineffective assistance or good cause.

Lafferty also has not shown that his unexhausted claims are potentially

meritorious; in fact, they are not. First, all of Lafferty’s claims will be time barred

by the Utah Post-Conviction Remedies Act (PCRA), and no exception will excuse

his late filing even if he is allowed to return to state court. Second, with the

exception of the Brady claims, Lafferty’s claims will be procedurally barred by

the PCRA because he could have raised these claims in his original state post-

conviction action. Lafferty has not explained why he could not have presented

them earlier, and no exception to the procedural bar will excuse his failure to do

so. Ineffective assistance of post-conviction counsel is not an exception to the


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time or procedural bars under the current PCRA. This is true for any future

successive petition—which Lafferty must file upon return to state court—even if

his first state petition proceeded under the aegis of a prior version of the statute

that might have excused the procedural bar for ineffective assistance of post-

conviction counsel.

Finally, Lafferty has an obvious motive to delay final resolution of this

habeas proceeding. His request for a stay comes after years of fruitless

competency litigation, and many years after he could have returned to state

court—with or without this Court’s permission. Nothing about the claims

themselves, or about AEDPA procedures, required him to wait so long to try and

present fresh claims to the state court.

Thus, Lafferty has failed to make a showing under any one of the three

necessary Rhines factors, and this Court would abuse its discretion—and

frustrate AEDPA’s purpose to prevent interminable habeas litigation—if it

granted the stay.

BACKGROUND

Criminal proceedings

Nearly twenty-nine years ago, Lafferty and his brother Dan murdered

their sister-in-law Brenda Lafferty and her fifteen-month-old daughter, Erica.


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During the murder, Brenda pleaded with the men not to harm her child, and

Erica cried for her “mommy.” Lafferty believed that Brenda had helped

Lafferty’s wife leave him. He told Dan that he had received a divine revelation

that Brenda and Erica needed to be “removed.” Lafferty was tried twice,

convicted twice, and sentenced to death twice. See generally Lafferty v. State, 175

P.3d 530 (Utah 2007), cert. denied, Lafferty v. Utah, 555 U.S. 830 (2008); State v.

Lafferty, 20 P.3d 342 (Utah 2001), cert. denied, Lafferty v. Utah, 534 U.S. 1018 (2001);

State v. Lafferty, 749 P.2d 1239 (Utah 1988), habeas granted, Lafferty v. Cook, 949 F.2d

1546 (10th Cir. 1991), cert. denied, 504 U.S. 911 (1992).

Post-conviction proceedings

Lafferty sought State post-conviction relief. After a change in counsel and

significant time to investigate, Lafferty’s counsel filed a Second Amended

Petition for Post-Conviction Relief raising several claims. PCR. 230-05. The State

moved for partial summary judgment and to dismiss the Amended Petition.

PCR. 323-253. After receiving Lafferty’s opposition, the State made clear that it

sought summary judgment and dismissal with prejudice on all of Lafferty’s

claims. PCR. 491:3.


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After full briefing and argument, the post-conviction court granted the

State’s summary judgment motion, dismissed Lafferty’s Amended Petition with

prejudice, and denied post-conviction relief. PCR. 478-76, 473-26.

Lafferty timely appealed, and the Utah Supreme Court affirmed the denial

of post-conviction relief. Lafferty v. State, 2007 UT 73, 175 P.3d 530.

Federal habeas corpus

On May 17, 2007, this Court appointed counsel to represent Lafferty in his

federal habeas corpus action. Doc. no. 3. Lafferty filed his federal habeas

petition on October 19, 2007. Doc. no. 24. He amended the petition on February

6, 2008, and again on February 21, 2008. Doc. nos. 39, 40, and 42. Lafferty

acknowledged lack of exhaustion in his amended petition. See, e.g., doc. no. 39 at

55.

On December 26, 2008, the warden filed his response. Doc. no. 69. In May

2009, Lafferty asked for and received permission to file a reply in support of the

petition. Doc. nos. 73 and 74.

On December 3, 2009, Lafferty filed a motion for a competency

determination. Doc. No. 94. This Court initially stayed the proceedings “for the

limited purpose of resolving Petitioner’s motion for a competency hearing.”

Doc. no. 104. On 15 April 2013, that stay expired by its own terms when the


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Court scheduled an evidentiary hearing on the competency issue. Doc. no. 266.

The Court held a two-day competency hearing in October, 2013, and the Court

found Lafferty competent. Doc. no. 341.

Lafferty ultimately filed a first reply on May 2, 2011, addressing those

claims he deemed purely legal and did not require Lafferty’s input, and a second

complete reply on May 2, 2014, addressing all the claims. Doc. nos. 173, 349.

Lafferty filed the current Rhines motion on May 2, 2014. Doc. no. 350. That

motion seeks to stay and abey the federal habeas petition in order to return to

state court to exhaust claims. Id. To argue the claims’ relative merits, the motion

relies extensively on the fuller treatment of those claims in the second amended

petition and in Lafferty’s two replies in support of the petition. Id. In turn, those

pleadings acknowledge exhaustion issues, and signal Lafferty’s intent—as early

as 2008—to seek a Rhines stay. See, e.g., doc. no. 39 at 55.

ARGUMENT

Before the Anti-Terrorism and Effective Death-Penalty Act, a federal

habeas petitioner who filed a petition containing both exhausted and

unexhausted federal claims had to elect either 1) to dismiss the entire petition

and exhaust his claims in state court before refiling his petition; or 2) to file an

amended petition in federal court that eliminated the unexhausted claims.


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Rhines v. Weber, 544 U.S. 269, 273-75 (2005). However, “[a]s a result of the

interplay between AEDPA’s 1-year statute of limitations and [the complete

exhaustion] and dismissal requirement, petitioners who come to federal court

with ‘mixed’ petitions run the risk of forever losing their opportunity for any

federal review of their unexhausted claims.” Id. at 275.

To address that dilemma, the Rhines Court adopted a “stay and abeyance”

procedure. It allows a federal court to stay the federal habeas action and hold the

mixed federal petition in abeyance while a petitioner exhausts his federal claims

in state court. This procedure “reinforces the importance of” the court’s previous

“’simple and clear instruction to potential litigants: before you bring any claims

to federal court, be sure that you first have taken each one to state court.’”

Rhines, 544 U.S. at 276-77 (quoting Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198

(1982)).

The Supreme Court recognized, however, that such a procedure frustrates

both a state’s interest in the finality of its judgments and the AEDPA’s purpose of

“‘reducing delays in state . . . criminal sentences, particularly in capital cases.’”

Id. at 276 (citation omitted). Consequently, the Supreme Court held that a federal

court should rely on the “stay and abeyance” procedure only under “limited

circumstances” and defined the prerequisites for granting a Rhines stay and


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abeyance. In relevant part, Rhines requires that a habeas petitioner establish (1)

good cause for his failure to exhaust the claim in state court before asking to halt

the federal case, (2) that the claim is potentially meritorious, and (3) that he has

not engaged in intentional delay or abusive litigation tactics. See Rhines, 544 U.S.

at 276-78. “Petitioner, as movant, has the burden to show he is entitled to a stay

under the Rhines factors.” Carter v. Friel, 415 F.Supp. 2d 1314, 1317 (D.Utah

2006).

Lafferty has not shown that his claims fit within the narrow parameters of

Rhines. His claims are not unexhausted with good cause, not potentially

meritorious, and not brought without undue delay. A stay would thus constitute

an abuse of discretion.

I.

LAFFERTY HAS NOT SHOWN THAT HE SHOULD BE EXCUSED FROM HIS FAILURE TO EXHAUST HIS CLAIMS.

To get a stay, Lafferty must first demonstrate “good cause” for his failure

to exhaust the claims in the state court before asking to halt the federal case.

Rhines, 544 U.S. at 278. See also Larry v. Polk, 412 F.Supp. 2d 542, 546 (M.D.N.C.

2005); Bader v. Warden, New Hampshire State Prison, 2005 WL 1528761 at *7

(D.N.H.), 2005 DNH 103 (June 29, 2005). To meet that burden, Lafferty must

establish “cause” equivalent to that which would excuse a procedural default.


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See Carter v. Friel, 415 F. Supp. 2d 1314, 1319 (D. Utah 2006). Therefore, he must

show that “‘some objective factor external to [him] impeded [his] efforts’” to

exhaust the claims. Coleman v. Thompson, 501 U.S. 722, 753 (1991) (citation

omitted). Lafferty’s motion fails to establish good cause for his failures to

exhaust his claims.

A. Lafferty fails to show good cause for failing to exhaust his Brady claims (claims 3 & 4) because he has not shown that he could not present them to the state court with his first post-conviction petition or in the nearly seven years this case has been pending.

Lafferty seeks to return to state court to exhaust two Brady claims

(claims 3 & 4), but he has not shown that, even if the claims have merit, he

could not have raised them during his state post-conviction proceedings or

in the nearly seven years this case has been pending. As shown below,

Lafferty’s own argument shows that he could as easily have presented his

Brady claims during his state proceedings as now, and there was no reason

to wait. He therefore cannot show good cause.

Claim 3 alleges the State suppressed: (1) impeachment evidence

concerning, and consideration given to, a prosecution witness, Chip

Carnes, and (2) state criminalist Martha Kerr’s later wide-ranging

denunciation of the State’s evidence management. Doc. no. 39 at 55-67;


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doc. no. 350 at 4-7. Claim 4 expands on the Kerr allegations by claiming that

significant evidence was destroyed. Doc. no. 39 at 69-70.

Lafferty argues that the “State’s failure to disclose material exculpatory

evidence provides ‘good cause’ to excuse Lafferty’s failure to fully exhaust” these

claims because he “cannot be faulted for failing to present evidence which the

State improperly concealed.” Doc. no. 350 at 7.

Respondent does not dispute that, under appropriate circumstances, a

properly-framed Brady claim can demonstrate good cause for a failure to

exhaust. That is, if the State suppresses evidence such that a petitioner has no

access to it, and reasonable diligence will is not enough to discover it, that could

constitute an “objective factor external to” petitioner that “impeded [his] efforts’”

to exhaust the claims. Coleman, 501 U.S. at 753. See, e.g., Jalowiec v. Bradshaw, 657

F.3d 293, 305 (6th Cir. 2011) (stating “inasmuch as Jalowiec’s failure to timely

assert … his Brady claim is shown to be attributable to the prosecution’s

wrongful withholding of information, he has good cause for his failure to

exhaust”).

But Lafferty’s argument that the State’s alleged suppression of evidence

prevented him from raising these claims misses the essential point. It is not

enough to allege the State once failed to disclose evidence. He must also show


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that the failure to disclose evidence both prevented him from discovering the

evidence even with reasonable diligence, and that impeded his ability to present

the claims to the state court. See Rhines, 544 U.S. at 277. Alternatively, he must

show that, once the State disclosed the evidence, it was too late to present the

claims to the state court. Lafferty shows neither.

In fact, Lafferty has not divulged when the evidence on which he founds

the Brady claims became available to him, nor does he suggest that the discovery

occurred too late to exhaust them either in the state action or in a second state

action without necessitating a stay in this case. Although he alleges that the State

suppressed evidence before and during trial, Lafferty leaves no hint how or

when he discovered the alleged evidence. Lafferty temporally ties the alleged

suppression only to his second trial. Doc. no. 350 at 4 (arguing alleged

suppression resulted “in Carnes’s false testimony at trial”) (emphasis added); id.

at 7 (arguing “the State relied on” false evidence, as alleged by Kerr, “in its

argument for convicting Lafferty of the offense”).

But Lafferty makes no proffer that he did not—and could not—

discover the evidence until it was too late to raise the Brady claims in his

state post-conviction proceedings. While it is true that a petitioner cannot

be faulted for failing to present wrongfully suppressed evidence so long as


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it remains suppressed and otherwise undiscoverable, he can be faulted for failing to

present the same evidence once he discovers it. And he can be faulted for failing

to present the same evidence if it was discoverable with reasonable diligence by

means other than the State’s disclosure.

In other words, suppression of evidence at one time does not provide a

habeas petitioner a perpetual fountain of “good cause” to draw from however

late he decides to exhaust the claim. If early suppression, no matter when

discovered, provided ongoing good cause for failing to exhaust, then no Brady

claim need ever be exhausted during the first tour through state court. This

cannot constitute the “good cause” contemplated by Rhines, since such a rule

would structurally eliminate “a petitioner’s incentive to exhaust all his claims in

state court prior to filing his federal petition.” Rhines, 544 U.S. at 277.

Lafferty discovered the Kerr evidence no later than 9 May 2007, when

Respondent’s counsel wrote and informed Lafferty’s counsel of the statements.

Doc. no. 69 Exh. E. Respondent wrote this letter several months before the Utah

Supreme Court issued its opinion affirming denial of post-conviction relief. And

Lafferty never attempted to bring a successive petition under the Utah PCRA

newly discovered evidence provisions. Lafferty makes no argument that he

could not do so, and he cannot show that his failure to do so was based on any


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factors external to him. Thus, he cannot show good cause for failing to exhaust

the Kerr claim.

The Carnes allegations are less specific still. Nothing in Lafferty’s petition,

attachments, or two replies in support of the petition indicate when or how

Lafferty became aware of the alleged impeachment evidence. Lafferty alleges

only that the State did not disclose Carnes’s prison disciplinary history and

concessions offered for Carnes’s testimony. But to find good cause, this Court

would have to speculate that Lafferty did not discover or could not have

discovered the alleged evidence in time to bring a claim during the first state

post-conviction proceedings or in the seven years since that proceeding ended.

Lafferty has not made that showing; he has not even alleged it. He says only that

the State concealed this evidence at trial. Rhines good cause, however, turns on

whether something external to his own neglect of the issue prevented him from

exhausting the claim before now. Coleman, 501 U.S. at 753. Alleged concealment

18 years ago does not justify halting this 7-year-old habeas proceeding.

In short, Lafferty has made no attempt to show that any factors

external to him impeded his ability to exhaust his Brady claims. He has

merely alleged that the State did not disclose the evidence at trial, and he

has implied that the State’s initial failure to disclose continuously


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prevented his discovery and presentation of the evidence until now. But he

never makes the essential link between the initial alleged failure to disclose and

his own failure to present the claims to the State court when he had the chance.

Regarding the latter, Lafferty remains silent. Lafferty explains no cause at all for

his failure to exhaust, much less a good one.

B. Lafferty fails to show good cause for failing to exhaust his incomplete court records claim (claim 5) because any missing records were always apparent.

Lafferty seeks to return to state court to exhaust his claim that the state

courts failed to preserve a full record of various proceedings. Doc. no. 350 at 7-

10; doc. no. 39 at 71-76. The missing records, Lafferty says, prevented him from

exhausting claims relating to jury selection (claim 32-24) and a claim related to

the state competency proceedings (claims 27 & 28).2 Doc. no. 350 at 8. He could

not exhaust those claims, he says, because the state court’s inadequate record

affected his “ability to adequately plead the factual bases for” those claims. Id.

Lafferty makes no attempt to establish good cause for his failure to exhaust

this claim. The heading of this section of his motion says “Lafferty may show 2 Lafferty inexplicably identifies Volume I of the competency hearing as missing from the state record. Doc. no. 39 at 72. That transcript, however, is not missing. Volume I of the competency hearing appears in the state record. See R5438 (14 March 1996, state court date-stamped 24 October 1996) (transcript cover in Addendum A). Perhaps Lafferty’s confusion comes from his citation to R5439 for Volume I. That citation actually contains Volume II.


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good cause for his failure to exhaust because the state courts failed to preserve a

complete record,” and that is all he says about good cause. Doc. no. 350 at 7. In

other words, he posits that the existence of the claim itself is the good cause for

his failure to exhaust it.3

But even if the claim is meritorious, he offers no suggestion why he could

not have brought the claim during post-conviction proceedings. Any

deficiencies in the record were or should have been apparent to Lafferty during

his post-conviction proceedings. Lafferty admits that during “his post-

conviction proceedings,” he “alerted the court to the fact that crucial portions of

the record were missing.” Doc. no. 349 at 9. And although he claims he “was

required to go forward … without a complete record,” he does not say that he

made any efforts either to complete the record or present a claim regarding the

missing records. Id.

Lafferty quotes the State’s motion regarding the underlying criminal

record, which asked the post-conviction court to “consider the trial court record

‘as though fully set forth in the record of this post-conviction proceeding,’” and

3 Importantly, with the exception of claim 33, Lafferty does not use the lack of a state record to establish good cause for his failure to exhaust the other claims related to the allegedly inadequate records (claims 27-28, 32 & 34). Of those claims, he seeks to return to state court to exhaust only claim 33. Doc. no. 350 at 3.


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faults the State for doing so “even though it was aware of the missing portions of

the record.” Doc. no. 349 at 10 (quoting PCR ROA 249-50). Lafferty thus implies

that, on the State’s urging, the post-conviction court disregarded his complaint

regarding the missing records.

But the State never asked the trial court to disregard any missing portions

of the record, or to deem the record complete over Lafferty’s objection. In fact,

the State’s motion that Lafferty cites did not relate to the missing records at all.

Rather, the motion asked the court “to consider the record in State v. Lafferty,

Fourth Judicial District Court, Utah County, case no. 841409309, as though fully

set forth in the record of this post-conviction proceeding.” PCR 249-50. “Because

petitioner seeks post-conviction relief from the conviction and sentence in case

no. 841409309, it is appropriate for the Court to consider the record in that case in

disposing of the post-conviction proceedings.” Id. This motion only asked the

court to incorporate the criminal record—complete or not—for consideration in

the post-conviction proceedings, as required by the PCRA. See Utah Code Ann. §

78B-9-104(2) (requiring post-conviction court to consider “the evidence and facts

introduced at trial”). It did not work against Lafferty’s interests in presenting

any claims. Lafferty’s suggestion to the contrary misconstrues the motion to

create an external impediment that never actually existed.


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Lafferty also argues that appellate counsel was ineffective “for failing to

insure that the entire record was prepared and file[d],” suggesting that is good

cause for the failure to exhaust. Doc. no. 39 at 75. But appellate counsel

ineffectiveness, even if over-layered by a claim of post-conviction counsel

ineffectiveness, does not constitute good cause for failing to exhaust. As

explained below, only a narrow class of post-conviction ineffectiveness claims

may support good cause; appellate ineffective assistance is not in that narrow

class.

Appellate counsel’s ineffective assistance can sometimes be cause to excuse

the default of an underlying claim, but only where the claim of appellate

ineffectiveness was itself exhausted. Murray v. Carrier, 477 U.S. 478, 488-89, 106

S.Ct. 2639 (1986). Lafferty seeks to excuse his failure to exhaust the records claim

by laying blame at the feet of appellate counsel—but he does not give cause for

his failure to exhaust his claim of appellate ineffectiveness.

To the extent Lafferty relies on the narrow Martinez exception, appellate

ineffective assistance could not establish cause for the default of the inadequate

records claim because the claim does not raise trial ineffectiveness. In Martinez v.

Ryan, the Supreme Court held that “[i]nadequate assistance of counsel at initial-

review collateral proceedings may establish cause for a prisoner’s default of a


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claim of ineffective assistance at trial.” Martinez v. Ryan, 132 S.Ct. 1309, 1315

(2012). This rule applies only where a petitioner must postpone his trial

ineffective assistance claims until his “initial-review collateral proceeding.” Id. at

1318. Respondent does not concede that Martinez applies in Utah since the Utah

review process provides a mechanism to raise trial counsel ineffectiveness before

the first post-conviction action—Martinez’s “initial-review collateral proceeding.”

See Utah R. App. P. 23B (providing procedural mechanism to factually establish

trial ineffectiveness during direct appeal).

But even assuming the Martinez exception may be available in Utah, to

Lafferty in particular, Lafferty does not claim that trial counsel were ineffective

for omitting the inadequate record claim, nor does he claim that post-conviction

counsel in an “initial-review collateral proceeding” were ineffective for omitting

the claim. He claims only that appellate counsel neglected their stand-alone

obligation “to insure that the entire record was prepared and filed.” Doc. no. 39

at 75. Thus, this claim does not fall within the narrow Martinez cause exception

because it is not a claim that initial-review post-conviction counsel were

ineffective for omitting a claim of trial counsel error. See Banks v. Workman, 692

F.3d 1133, 1148 (10th Cir. 2012) (Martinez applies only to “a prisoner’s procedural

default of a claim of ineffective assistance at trial,” not to claims of deficient


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performance by appellate counsel.”) (citation omitted, emphasis in original), cert.

denied, Banks v. Trammell, 133 S.Ct 2397 (2013).

Indeed, Lafferty says little or nothing about post-conviction counsel’s

effectiveness here. But even if his very general statements about post-conviction

counsel’s effectiveness overall were sufficient to challenge their performance

with respect to the claim of appellate counsel’s performance regarding the

adequacy of the record, that post-conviction claim nevertheless does not

challenge trial counsel’s effectiveness and does not fit within Martinez’s narrow

scope.

On the other hand, if Lafferty relies generally on a claim of post-conviction

counsel to demonstrate cause, post-conviction counsel is generally not cause to

excuse a default, outside of the Martinez exception. Thus it does not establish

cause for the failure to exhaust. The general rule is that post-conviction

ineffective assistance does not establish good cause for failing to exhaust a claim.

In Carter, Judge Stewart analogized the Rhines “good cause” to the cause

necessary to overcome a federal procedural default. He then rejected Carter’s

reliance on state post-conviction counsel’s alleged ineffectiveness because

ineffective-assistance of state post-conviction counsel does not excuse a

procedural default. Carter, 415 F. Supp. 2d at 1319-20.


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A claim of ineffective assistance of post-conviction counsel generally is

“not cause to excuse a procedural default because there is no constitutional right

to counsel in collateral civil proceedings.” Carter, 415 F.Supp. 2d at 1319-1320

(relying on Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546 (1991)) (emphasis

added). This is so because “[t]here is no constitutional right to an attorney in

state post-conviction proceedings. . . . Consequently, a petitioner cannot claim

constitutionally ineffective assistance of counsel in such proceedings.” Coleman,

501 U.S. 722, 752.4

Judge Stewart also reasoned that allowing state post-conviction counsel’s

alleged ineffectiveness to constitute Rhines good cause would make Rhines stays

the rule rather than the exception. This would occur “because the failure to

exhaust state remedies frequently involves allegations of ineffective assistance of

state post-conviction counsel.” Id. at 1318. He reasoned that making Rhines stays

the rule would “violat[e the] AEDPA’s purposes by delaying the federal petitions

and routinely excusing a petitioner’s failure to present his claims to the state

court in the first instance.” Id. at 1318-19. The Court found “the cases holding

that an allegation of ineffective assistance of post-conviction counsel does not

4 Thus, it does not matter whether Lafferty attacks post-conviction counsel’s performance under state or federal law.


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constitute ‘good cause’ for failing to exhaust state remedies are the better

reasoned.” Carter, 415 F.Supp. 2d at 1318.

Several other courts have found that claims of ineffective assistance of

counsel do not constitute good cause. See, e.g., Carter, 415 F.Supp. 2d at 1317-18;

Johnson v. Sullivan, 2006 WL 37037 (C.D. Cal. 2006); Vasquez v. Parrott, 397 F.Supp.

2d 452, 464 (S.D.N.Y. 2005); Hubbert v. Renico, 2005 WL 2173612 at *3 (E.D. Mich.,

Sept. 7, 2005); Larry v. Polk, 412 F.Supp. 2d 542, 546 (M.D. N.C. 2005); Bader v.

Warden, No. 02-CV-508, 2005 WL 1528761, at *7 (D.N.H. June 29, 2005).

In Larry, for example, the petitioner argued that “unexhausted claims not

raised earlier because of alleged ineffective assistance of counsel should be

sufficient to obtain a stay.” Larry, 412 F.Supp. 2d at 545. In analyzing this

assertion, the North Carolina court said: “At its heart, petitioner’s argument is

grounded in the proposition that whenever a new claim for relief is conceived, a

petitioner who files a new post-conviction petition in state court should be able

to obtain a stay of proceedings in federal court.” Id.

The court rejected “petitioner’s test because it would effectively render the

good cause test meaningless.” Id. If merely asserting ineffective assistance of

counsel could establish good cause, then “[o]btaining new counsel and claiming

ineffective assistance of prior post-conviction counsel would become standard


23

procedure, particularly for capital habeas petitioners, in an effort to circumvent

AEDPA’s one-year period of limitation and postpone the execution of state

sentences indefinitely.” Id. This would result in a never-ending cascade of

attorneys claiming that prior counsel was ineffective for not alleging the

ineffectiveness of the one before. “[A] claim of ineffective assistance of post-

conviction counsel is insufficient to satisfy the ‘good cause’ requirement

necessary to stay a federal habeas action.” Larry, 412 F.Supp. 2d at 546. See also

Lopez v. Rivera, No. 03-2974, 157 Fed. Appx. 358, 360 n.2 (2d Cir. Nov. 30, 2005).

And even if Lafferty could benefit from the Martinez exception, or a

general claim of post-conviction ineffectiveness, it is not enough to simply assert

ineffective assistance by prior counsel. Lafferty will have to prove it. He has not

shown he can

A petitioner does not show good cause by simply suggesting that, since

counsel did not raise a claim, they were therefore ineffective. As with all

ineffective assistance claims, Lafferty must show his counsel “was ineffective

under the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984).” Martinez, 132 S.Ct. at 1318. Thus, the question is not simply

whether counsel omitted the claim; rather, the question is whether counsel was

objectively deficient for omitting the claim, and whether Lafferty suffered


24

prejudice from that omission. Lafferty has not made that showing. He has left it

at a bare suggestion that the omission necessarily amounts to ineffective

assistance, but this is wholly inadequate.

Finally, post-conviction counsel’s ineffective assistance could at most

establish cause for Lafferty’s failure to exhaust this claim in the first post-

conviction proceedings. Those ended in 2007. He has shown no cause for his

failure to exhaust them in the 7 years since.

C. Lafferty fails to show good cause for failing to exhaust his claim that he was denied his right to self-representation because it does not establish ineffective assistance of trial counsel within the meaning of Martinez.

Lafferty seeks to return to state court to exhaust claim 7 (denial of self-

representation) and claim 33 (ineffective assistance in jury selection). Doc. no.

350 at 9. He argues that these “claims of ineffective assistance of trial counsel are

unexhausted because Lafferty’s post-conviction counsel unreasonably failed to

raise them to the state court.” Id. at 10.5

But the entire substance of Lafferty’s good cause argument consists of the

unremarkable observation, citing Martinez, that the “failings of post-conviction

counsel can establish cause.” Id. (emphasis added). See also doc. no. 349 at 14

(arguing Lafferty can show good cause “due to ineffective assistance of Lafferty’s 5 These are the only claims that arguably fit within the Martinez exception.


25

counsel, who failed to raise the trial phase claim”). But even when post-

conviction ineffective assistance in an initial-review collateral proceeding can

establish cause, Lafferty must do more than simply show the fact of the omission,

because that fact alone does not prove both Strickland elements. To prove those

elements, he must show that (1) all objectively reasonable post-conviction

counsel would have included the omitted claim, and (2) there would have been a

reasonable probability of a more favorable outcome in the post-conviction case if

counsel had included it. Lafferty has not even acknowledged these elements of

post-conviction ineffective assistance, much less proffered anything to prove

them.

In any event, Lafferty has not shown that no objectively reasonable counsel

would have omitted these claims. For example, he claims that trial counsel

“failed to bring Lafferty’s intent to exercise his right to self-representation to the

trial court,” given an apparent conflict of interest between Lafferty and Mr.

Killpack. Doc. no. 350 at 9. But he admits that counsel presented the trial court

with an affidavit that “not only waived any conflict but affirmatively requested

Mr. Killpack’s continued involvement.” Doc. no. 39 at 82. In the face of this

waiver and request for assistance, Lafferty insists (1) that he was actually

requesting standby counsel, not outright representation, (2) that counsel should


26

therefore have requested a Faretta hearing to admonish him about the dangers of

self-representation, and (3) that he was thereafter continuously denied the right

to self-representation.

Lafferty’s claim—that counsel should at least have presented the request

for self-representation to the trial court—is at best ambiguous about whether

counsel had reason to question Lafferty’s waiver. According to Lafferty’s own

recitation of the record facts, Lafferty waived any conflict of interest and

requested continued assistance from counsel. He claims that the waiver

presented by Mr. Killpack contained an interlineated change, from a request for

Mr. Killpack to “represent” Lafferty to a request for Mr. Killpack to “assist” him.

Doc. no. 39 at 82. This ambiguity, he claims, required trial counsel to seek

clarification and hold a Faretta hearing; and it should have put post-conviction

counsel on notice of a trial counsel ineffective assistance claim.

But counsel are “strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Strickland, 466 U.S. at 690. To show ineffective assistance of post-

conviction counsel, Lafferty must rebut this presumption by showing that post-

conviction counsel had no legitimate strategic reason for omitting the self-

representation claim. In other words, he “must overcome the presumption that,


27

under the circumstances, the challenged action might be considered sound []

strategy.” Id. at 689.

So, for example, if Lafferty told post-conviction counsel that he did not

actually intend to represent himself, post-conviction counsel would have had a

legitimate tactical basis for omitting the claim. See id. at 691 (“The reasonableness

of counsel’s actions may be determined or substantially influenced by the

defendant’s own statements or actions. Counsel’s actions are usually based, quite

properly, on informed strategic choices made by the defendant and on

information supplied by the defendant.”).

Lafferty proffers no evidence rebutting the presumption that post-

conviction counsel omitted the claim based on a legitimate strategic

consideration, such as Lafferty’s own statements to them. Instead, he asks this

Court to presume the opposite—that, since post-conviction counsel omitted the

claim and failed to exhaust it, that could only have resulted from objectively

unreasonable representation. His analysis turns the Strickland presumption on

its head, and fails for this reason.6

6 Lafferty also argues that he has a statutory right to effective post-conviction counsel, by virtue of Menzies v. Galetka, which held that the PCRA statutory right to post-conviction counsel in capital cases was coextensive with the Sixth Amendment right under Strickland. 2006 UT 81,¶86, 150 P.3d. But whether the Menzies regime—which has since been superseded by statute and court rule—


28

Likewise, Lafferty fails to proffer evidence that post-conviction counsel

were ineffective in omitting the jury selection claim. Indeed, Lafferty relies on

the absence of a record of voir dire proceedings to support his claim. He argues

explicitly that review “of the missing transcript for Jurors 58, 82 and 105 may

reveal similar prejudicial deficiencies by Lafferty’s trial counsel.” Doc. no. 349 at

121 (emphasis added). This wholly fails to meet Lafferty’s burden to overcome

the strong presumption that “the acts or omissions of counsel” were not “the

result of reasonable professional judgment.” Strickland, 466 U.S. at 690. And

Lafferty’s own uncertainty about what he may find in those transcripts

undercuts his claim that he suffered prejudice from counsel’s performance in

jury selection. See, e.g., doc. no. 349 at 9 (conceding “it is unknown what is in the

missing record”); id. at 121 (stating transcripts “may reveal [] prejudicial

deficiencies”) (emphasis added).

Lafferty proffers no evidence of what the missing transcripts contain, no

evidence that the transcripts would reveal a viable claim of trial counsel error,

and no evidence that post-conviction counsel could have obtained the transcripts

but did not try. Even now, many years later, Lafferty has not produced the voir theoretically gave Lafferty an avenue to challenge his post-conviction counsel’s performance is beside the point. Lafferty still has not proffered enough evidence to show Strickland ineffectiveness and, as shown below, such a claim will be barred anyway.


29

dire transcript that he hopes will ground a trial counsel ineffectiveness claim.

His own investigator tried, and failed, to obtain it from the court reporter. Doc.

no. 349 Exh. I. He cites no case holding that the transcript’s mere absence now

can stand in for his burden to prove the prejudice element. And Lafferty has

made no showing that post-conviction counsel would have fared any better.

Thus, he has not shown that post-conviction counsel were ineffective.

But even if Lafferty could rebut the presumption that post-conviction

counsel were effective, that alone does not end the Rhines good cause inquiry.

Good cause is shown where a petitioner can explain a reason, external to the

petitioner himself, why he was justified in failing to present the claim to the state

court. Even if post-conviction counsel were ineffective for not presenting claims

7 and 33 to the state court in the first instance, that does not justify Lafferty’s own

failure, over many years since then, to attempt to present the claims in a

successive petition, or to amass sufficient evidence of his claim of post-conviction

counsel ineffectiveness. He offers no reason why he had to wait until 2014 to

start the process of showing good cause for the failure to exhaust. Clearly, “‘a

showing that the factual or legal basis for a claim was not reasonably available to

counsel, … or that “some interference by officials” … made compliance

impracticable, would constitute cause . . . .’” Coleman, 501 U.S. at 753 (citation


30

omitted). But Lafferty has not shown that circumstances beyond his control,

including unavailability of the transcripts or alleged ineffective assistance, can

account for him waiting until now even to ask to go back to present these claims.

Accepting Lafferty’s allegation as true—that the missing transcripts were

unavailable to post-conviction counsel, and continue to be unavailable to habeas

counsel—that allegation defeats his claim that post-conviction counsel were

deficient for omitting claims that could only be supported by those transcripts.

* * *

Lafferty has failed to show good cause for his failures to exhaust the claims

he now seeks to present in court. In each instance, he offers no reason why he

could not have presented the claim to the state court, no reason why post-

conviction counsel were ineffective, and no reason why he can only now make

the effort to get his claims before the state court. Lafferty’s own negligence—not

factors external to the post-conviction team—caused the failure to exhaust. For

this reason alone, a stay is inappropriate. Rhines, 544 U.S. at 276.


31

II.

LAFFERTY’S CLAIMS ARE NOT POTENTIALLY MERITORIOUS BECAUSE STATE TIME AND PROCEDURAL BARS WILL PRECLUDE RELIEF.

Because Rhines facilitates exhausting potentially meritorious federal claims

in state court, it presupposes that there exists a means of exhausting the merits of

those claims. And since Lafferty cannot exhaust the merits of his claims in state

court, there is no reason to stay this action.

This Court “would abuse its discretion” if it were to grant Lafferty a stay if

his unexhausted claim is “plainly meritless.” Rhines, 544 U.S. at 277. A claim is

“meritorious” if it “merit[s] a legal victory.” Black’s Law Dictionary, 7th Ed., 1003.

But if a claim would be barred, it cannot “merit a legal victory.” Lafferty must

proffer sufficient law, analysis, and evidence to show that his unexhausted

claims have the potential to succeed. See Mathis v. Bruce, 07-3048-SAC, 2007 WL

2900209 at 2-3 (D. Kan. 2007) (Mathis failed to demonstrate that his unexhausted

claims were “potentially meritorious” because he presented insufficient

supporting facts, arguments, and legal theories).

Lafferty does not even acknowledge that his claims are time-barred, much

less offer try to explain how he intends to obtain merits review of them if he

returns to state. He says only that whether his Brady claims are “barred by state


32

law is more properly made to the state courts.” Doc. no. 349 at 7. He does not

address the time bar with respect to his other claims at all. But to return to state

court in the first place, he must show that his claims are “potentially

meritorious.” If they would be time barred—and he has done nothing to show

they would not be—they are not “potentially meritorious.”

Although he argues his claims will not be procedurally barred in state

court, his arguments rest on outdated and inapposite case law. As explained

below, his claims would be both time barred and procedurally barred, and a trip

to state court would be an exercise in futility that could serve no purpose but to

delay final resolution of his habeas petition.

A. Lafferty’s claims will be time barred under state law. Under Utah’s PCRA, a petition for post-conviction relief must be “filed

within one year after the cause of action has accrued.” Utah Code Ann. § 78B-9-

107(1) (West 2012). A cause of action accrues on the latest of the following dates:

(a) the last day for filing an appeal from the entry of the final judgment of conviction, if no appeal is taken;

(b) the entry of the decision of the appellate court

which has jurisdiction over the case, if an appeal is taken; (c) the last day for filing a petition for writ of

certiorari in the Utah Supreme Court or the United States Supreme Court, if no petition for writ of certiorari is filed;


33

(d) the entry of the denial of the petition for writ of certiorari or the entry of the decision on the petition for certiorari review, if a petition for writ of certiorari is filed; or

(e) 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.

Utah Code Ann. § 78B-9-107(2).

1. Lafferty’s Brady claims (claims 3 and 4) will be time barred because he has known about them since at least 2008 when he raised them in his habeas petition.

If Lafferty returned to state court to exhaust his Brady claims, alleging

newly discovered exculpatory or impeachment evidence, those claims will be

subject to the PCRA’s newly discovered evidence statute of limitations. Utah

Code Ann. § 78B-9-107(2)(e). He must have filed his claims within one year of

that date. Id. § 78B-9-107(1).

The State alerted Lafferty to the Kerr material no later than 9 May 2007.

Doc. no. 69 Exh. E. Thus, he had until 9 May 2008 to file a state post-conviction

petition making this claim. But rather than file the claim in state court, he raised

it here. Doc. no 39 at 55 (dated 6 February 2008). He had the ability to bring the

claim within that window, as shown by his bringing it here, but he did not. The

statute of limitations has expired, and the claim will be barred if he now returns

to state court to press it.


34

Lafferty does not disclose to this Court when he first discovered the

alleged Carnes material, but it was no later than 6 February 2008 when he filed

his second amended petition. Id. Thus, at the very latest, Lafferty had until 6

February 2009 to bring a claim based on these allegations.

Lafferty also does not disclose how he discovered the Carnes material. This

is relevant to the extent that it bears on whether he “should have known” about

the material even earlier had he sought it “in the exercise of reasonable

diligence.” Utah Code Ann. § 78B-9-107(2)(e). If reasonable diligence would

have uncovered the material earlier—and Lafferty bears the burden to show

reasonable diligence, see Utah Code Ann. § 78B-9-105(2)—but Lafferty simply

neglected the investigation, then the limitations period expired a year from the

earliest date that he could have made the discovery. Lafferty is silent on this

issue.

The PCRA statute of limitations contains a tolling provision for periods of

incapacity or state action that prevents filing a post-conviction claim. Id. § 78B-9-

107(3). Unlike the AEDPA, which tolls the federal statute of limitations for

periods where a properly filed state post-conviction petition is pending, the

PCRA statute of limitations does not toll while a federal habeas petition is

pending. Compare id. with 28 U.S.C. § 2254(d)(2). The reason for the difference is


35

obvious: federalism and comity concerns require petitioners to present their

claims first to the state court. The state post-conviction regime has no

corresponding obligation to the federal system.

2. Lafferty’s incomplete record claim (claim 5) will be time barred because the absence of any transcripts has been apparent since at least 2001, during his direct appeal.

Lafferty’s incomplete record claim is even more untimely than his Brady

claims. Where those claims accrued when the evidence could reasonably have

been discovered, the incomplete record claim accrued upon finality of the

conviction itself. The absence of any transcripts would have been apparent to

Lafferty at least as early as the time appellate counsel reviewed the record on

appeal in order to prepare a brief. Under the PCRA statute of limitations, a claim

relating to a pre-finality issue accrues upon “the entry of the denial of the

petition for writ of certiorari” in the Supreme Court. Utah Code Ann. § 78B-9-

107(2)(d). The Supreme Court denied Lafferty’s petition for certiorari on 13

November 2001. Lafferty v. Utah, 534 U.S. 1018, 122 S.Ct. 542 (2001). Lafferty had

until 13 November 2002 to bring any claims relating to the completeness of the

trial record.

More than 11 years have passed since the statute of limitations expired,

and Lafferty has yet to file such a claim. He makes no claim that he is entitled to


36

statutory tolling or any other reason why he would be entitled to present this

belated claim to the state court. Even if this Court excuses Lafferty’s delay in

bringing the claim, the state court cannot. Lafferty “is not eligible for relief

under” the PCRA because the claim “is barred by the limitation period.” Utah

Code Ann. § 78B-9-106(1).

3. Lafferty’s trial counsel ineffective assistance claims (7 and 33) will be time barred because his causes of action accrued in 2001, when the Supreme Court denied certiorari.

Lafferty’s ineffective assistance of trial counsel claims, relating to trial

counsel’s handling of the competency petition and jury selection, accrued at the

same time his incomplete trial record claim accrued: 13 November 2001, the date

the Supreme Court denied certiorari. And the statute of limitations expired a

year later, on 13 November 2002. The statute of limitations expired more than 11

years ago, and Lafferty has never attempted to present this claim to the state

court. The state court will bar this claim, even if this Court permits Lafferty to

try to exhaust.

B. Lafferty’s claims will be procedurally barred under state law. Lafferty’s unexhausted claims, with the exception of his Claims 3 and 4

based on newly discovered evidence, would also be procedurally barred in state

court because he could have raised them in his original state petition. The PCRA


37

bars a petitioner from obtaining relief on any ground that “could have been but

was not, raised in a previous request for post-conviction relief.” Utah Code Ann.

§ 78B-9-106(1)(d); see also, Gardner v. Galetka, 2004 UT 42, ¶¶13-19, 94 P.3d 263

(holding that, subject to certain exceptions, the PCRA bars claims that could have

been raised in a prior petition); Hurst v. Cook, 777 P.2d 1029, 1036-37 (Utah 1989)

(holding that, with certain exceptions, the common law barred claims that could

have been raised in a prior petition). There are no exceptions. Utah Code Ann. §

78B-9-106(1).

All of Lafferty’s unexhausted claims, except for his newly discovered

evidence claims, could have been brought in his original state petition.

Therefore, if Lafferty filed a new successive state petition raising these claims,

they would be dismissed as procedurally barred.

Under the PCRA, a successive petition may properly be filed and

addressed only if the claims in the successive petition are based on newly

discovered evidence, or if they are claims that could not have been filed in a prior

petition. See Utah Code Ann. § 78B-9-104 & 106. The PCRA includes a specific

exception when a claim could have been, but was not raised at trial or appeal, if

the failure to raise the claim at trial or on appeal was due to ineffective assistance

of counsel. See id. § 78B-9-106(2) (emphasis added). However, the PCRA does


38

not include any exception to the procedural bar if the claim was not raised in the

first post-conviction petition due to ineffective assistance of prior post-conviction

counsel. See Utah Code Ann. § 78B–9–202(4) (barring claims of post-conviction

ineffectiveness).

The PCRA prohibits claims of ineffective assistance of post-conviction

counsel in a capital case: “Nothing in this chapter shall be construed as creating

the right to the effective assistance of post-conviction counsel, and relief may not

be granted on any claim that post-conviction counsel was ineffective.” Utah

Code Ann. § 78B–9–202(4). Although a petitioner may be relieved from a post-

conviction judgment where he was virtually “abandoned” by his appointed

counsel, see Archuleta v. State, 2011 UT 73,¶166 & n14, Lafferty makes no claim

that he was abandoned by post-conviction counsel. Thus, Lafferty’s claim of

ineffective assistance of post-conviction counsel will “not create loopholes in the

PCRA” and its “prohibition against subsequent post-conviction petitions.” Kell

v. State, 2012 UT 250,¶¶30-31, 285 P.3d 1133. Even if this Court excuses Lafferty’s

failure to timely raise these claims, the state court will not.

If unexhausted claims would be procedurally barred in state court and a

“stay merely would prolong federal habeas review to no avail, contravening

AEDPA’s goal of ‘finality and speedy resolution of federal petitions,’” a district


39

court should deny the stay. Neville v. Dretke, 423 F.3d 474, 479-80 (5th Cir. 2005)

(citing Rhines, 125 S.Ct. at 1535). Unexhausted claims are “plainly meritless” if,

as here, a petitioner would now be “procedurally barred from raising those

claims in state court.” Id. Lafferty has not established that his unexhausted

claims would not be procedurally barred in state court. Since his claim would be

procedurally barred, it is not potentially meritorious, and this Court should deny

the request for a stay.

C. The state court will bar Lafferty’s claims, contrary to the repealed and overruled authorities Lafferty relies on.

Lafferty argues that his claims will not be barred in state court because (1)

Lafferty’s post-conviction proceedings occurred before recent statutory and

procedural changes took effect, (2) under the prior statutory and procedural

regime, he had a right to effective assistance of post-conviction counsel, and (3)

Utah courts do not consistently apply a rigid procedural bar in any event, and

this Court should let the state court decide in the first instance whether it will bar

the claim. Doc. no. 349 at 6-7, 15.

Under present law, the state court will not excuse the statutory bars on

non-statutory grounds, and as shown above, no statutory grounds apply here to

excuse the bars. The PCRA was amended in 2008. The prior “interests of justice”

exception to the time bar was removed and a tolling provision was added


40

instead. The statute now states that “[t]he limitations period is tolled for any

period during which the petitioner was prevented from filing a petition due to

state action in violation of the United States Constitution, or due to physical or

mental incapacity.” Utah Code Ann. § 78B-9-107(3) (West 2008). Lafferty has

not said this applies to him.

Then in 2009, the Utah Supreme Court amended rule 65C(a), Utah Rules of

Civil Procedure. It now provides that the PCRA “sets forth the manner and

extent to which a person may challenge the validity of a criminal conviction and

sentence after the conviction and sentence have been affirmed in a direct

appeal.” Utah R. Civ. P. 65C(a) (2010). The current rule also deleted language in

the prior subsection (c) that allowed a petitioner whose prior post-conviction

petition had been denied to file a successive petition raising additional claims if

he could demonstrate “good cause” for doing so. Cf. Utah R. Civ. P. 65C(c)

(2008) with Utah R. Civ. P. 65C(d) (2010).

Lafferty’s argument—that the old post-conviction regime will apply to his

claims because his post-conviction proceedings concluded before the rule and

statutory amendments—misses the mark. Any successive petition Lafferty files

now, as a new action, will be governed by the current statutes and rules,

regardless of whether the claims relate to facts that predate them. All of the cases


41

Lafferty relies on have been superseded by the rule and statutory amendments.

See, e.g., doc. no. 349 at 5-6, 23-24 (citing Tillman v. State, 128 P.3d 1123 (Utah

2005); Gardner v. Galetka, 94 P.3d 263 (Utah 2004); Hurst v. Cook, 777 P.2d 1029

(Utah 1989); Julian v. State, 52 P.3d 1168 (Utah 2002)). While those cases do

contain language implying common law or constitutional flexibility in the time

and procedural bars, later case law roundly rejects that flexibility and insists that

the court will apply the PCRA as written. See, e.g., Gardner v. State, 2010 UT 46,

¶¶90-95, 234 P.3d 1115 (rejecting argument, based on Tillman, Hurst, Menzies, and

Gardner, that common law or constitutional exceptions had continued vitality

after 2008 amendments to PCRA). Indeed, no Utah case since the 2008 and 2009

amendments have ignored the procedural or time bars to grant relief. Those

amendments—eliminating the good cause exception to the procedural bar, and

the interests of justice exception to the time bar—were designed to eliminate the

very confusion in the law Lafferty now seeks to invoke in order to obtain

otherwise barred relief.

* * * Any return to state court will be a hopeless enterprise for Lafferty.

His claims are all time barred and, with the exception of his Brady claims,

they are also all procedurally barred. The only purpose a return to state


42

court could serve would be to delay final resolution of this habeas case.

Such pointless delay is the very evil the AEDPA is designed to prevent,

and which Rhines forbids.

III.

LAFFERTY HAS NOT SHOWN THAT HIS REQUEST FOR A STAY DOES NOT AMOUNT TO INTENTIONAL DELAY OR ABUSIVE LITIGATION TACTICS.

Even if Lafferty can show good cause for his failure to exhaust in the

first instance, and show that his claims are not meritless, he still bears the

burden to show that by requesting a stay, with leave to return to state

court, he has not engaged in “abusive litigation tactics or intentional

delay.” Rhines, 544 U.S. at 277-78. This requirement recognizes that,

although “generally, a prisoner’s principal interest is in obtaining speedy

federal relief on his claims, not all petitioners have an incentive to obtain

federal relief as quickly as possible.” Id. (alterations, quotations, and

citation omitted). “In particular, capital petitioners might deliberately

engage in dilatory tactics to prolong their incarceration and avoid

execution of the sentence of death. Without time limits, petitioners could

frustrate AEDPA’s goal of finality by dragging out indefinitely their

federal habeas review.” Id. Lafferty has no motive to speed final


43

resolution of his claims, and his tactics here have worked to dramatically

delay the process. The burden rests on Lafferty to demonstrate the

legitimacy of his tactics. He cannot do so because the request for a stay

comes after he has already caused substantial unjustified delay.

As shown above, Lafferty identified all of his claims as early as 2008,

and many of them were apparent a decade before that. But he waited to

ask for a stay in order to exhaust until 2014. And he waited until after

obtaining what ultimately amounted to a fruitless competency stay that

delayed the proceedings for over three years.

Lafferty only hints at an excuse: he says he should not be forced “to

litigate his claims before it is determined if he is competent and able to

rationally assist his counsel.” Doc. no. 173 at 9. But this excuse begs the

question that Lafferty never answered during the competency

proceedings, whether his assistance was even necessary for habeas counsel

to press his claims. More to the point, Lafferty is competent, and could

have assisted counsel all along. Doc. no. 341 (finding Lafferty competent).

Lafferty did not need this Court’s permission to file a successive

petition in state court. The only relief Lafferty can obtain under Rhines is a

stay so that the habeas proceedings do not get ahead of his attempts to


44

exhaust in state court. Rather than waiting nearly 7 years into the habeas

proceedings to try and return to state court, Lafferty could have filed a

successive petition in state court at the beginning of this action when he

acknowledged the claims at issue were unexhausted. He could have taken

advantage of the time this case was already on hold to simultaneously

exhaust his claims. His attempts at exhaustion could have concluded long

before the competency proceedings concluded without necessitating any

further delay.

Instead, Lafferty unaccountably sat on his claims, though he

recognized and acknowledged their existence many years ago. It is

difficult to imagine what more a petitioner could do to run afoul of

Rhines’s proscription against intentional delay and the AEDPA’s purpose

to “’reduce delays in the execution of … capital cases.’” Rhines, 544 U.S. at

276 (quoting Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398 (2003)).

CONCLUSION

The Court should deny the stay because Lafferty has not met his burden to

show (1) good cause excusing his failure to exhaust, (2) that his claims are not

plainly meritless, and (3) that this request does not serve to intentionally delay or

engage in abusive litigation tactics.


45

DATED 2 July 2014.

SEAN D. REYES Utah Attorney General

/s/ Andrew F. Peterson THOMAS B. BRUNKER

ANDREW F. PETERSON Assistant Attorneys General Respondent’s counsel


Utah Attorney General's response in Lafferty case

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Transcript of Utah Attorney General's response in Lafferty case