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
tbrunker@utah.gov
andrewpeterson@utah.gov
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 Page 1 of 48

i

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

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

ii

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 3 of 48

1


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 .
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 4 of 48

2

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 5 of 48

3

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 6 of 48

4

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.
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 7 of 48

5

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.
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 8 of 48

6

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 9 of 48

7

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.
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 10 of 48

8

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 11 of 48

9

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.
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 12 of 48

10

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;
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 13 of 48

11

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

12

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 15 of 48

13

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 16 of 48

14

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 17 of 48

15

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.
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 18 of 48

16

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.
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 19 of 48

17

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.
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 20 of 48

18

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 21 of 48

19

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 22 of 48

20

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.
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 23 of 48

21

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.
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 24 of 48

22

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 25 of 48

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 26 of 48

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.
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 27 of 48

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 28 of 48

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,
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 29 of 48

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—
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 30 of 48

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.
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 31 of 48

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 32 of 48

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.




Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 33 of 48

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, 7
th
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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 34 of 48

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;

Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 35 of 48

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.
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 36 of 48

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 37 of 48

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 38 of 48

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 39 of 48

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 40 of 48

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 41 of 48

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 42 of 48

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 43 of 48

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 44 of 48

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 45 of 48

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
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 46 of 48

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.
Case 2:07-cv-00322-DB Document 362 Filed 07/02/14 Page 47 of 48

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

Sign up to vote on this title
UsefulNot useful