Gardner v. State

1 Mr. Gardner also appealed directly from the issuance of
(continued...)
2010 UT 46
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Ronnie Lee Gardner, 	No. 20100436
Petitioner and Appellant,
v.
F I L E D
State of Utah,
Respondent and Appellee. 	June 14, 2010
---
Third District, Salt Lake
The Honorable Robin W. Reese
No. 100908001
Attorneys: 	Andrew Parnes, Ketchum, ID, Megan B. Moriarty,
Therese M. Day, Salt Lake City, for petitioner
Mark L. Shurtleff, Att’y Gen., Thomas B. Brunker,
Erin Riley, Asst. Att’ys Gen., Salt Lake City, for
respondent
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	In 1985, Ronnie Lee Gardner was convicted of first
degree murder and sentenced to death. 	For the past twenty-five
years, his execution has been stayed pending resolution of his
state and federal post-conviction appeals. 	The most recent of
those actions was finally resolved on March 8, 2010, when, after
fifteen years of federal court review, the United States Supreme
Court declined to review the decision of the Tenth Circuit Court
of Appeals. 	On March 10, 2010, the State applied for an
execution warrant so that it could carry out Mr. Gardner’s
sentence; the warrant was issued shortly thereafter. 	After that
warrant was issued, Mr. Gardner filed this Petition for Post-
Conviction Relief in district court. 1 	The petition contains

1 (...continued)
the warrant of execution. 	In that appeal he raised claims
identical to the claims raised in this petition. 	State v.
Gardner, 2010 UT 44, ¶ 2, 234 P.3d 1104 (per curiam). 	We
concluded that appealing from that warrant was procedurally
improper. 	Id. 	All of the substantive claims asserted by Mr.
Gardner are being addressed in the context of this petition for
post-conviction relief.
2 The district court had jurisdiction to hear Mr. Gardner’s
case pursuant to Utah Code section 78B-9-104 (2008). 	We have
jurisdiction to hear this appeal pursuant to the interoperation
of Utah Code section 78A-4-103(2)(f) and subsections 78A-3-
102(3)(i) and -102(3)(j) (2008).
No. 20100436 	2
constitutional challenges to Mr. Gardner’s sentence that he did
not raise in any prior proceeding. 	The State moved for summary
judgment on all of Mr. Gardner’s claims on the grounds that the
claims are barred under the statutes governing post-conviction
relief both because the claims are untimely and because Mr.
Gardner had an opportunity to raise the claims in a prior
proceeding and failed to do so. 	The district court agreed with
the State’s arguments and granted the State’s motion for summary
judgment.
¶2 	Mr. Gardner appeals from the district court’s order
granting summary judgment in favor of the State. 2 	He argues that
the district court incorrectly assessed his ability to bring his
claims prior to the conclusion of his federal action and that,
consequently, the court erred in concluding that his claims were
barred. 	Mr. Gardner also argues that the district court had
authority to make an exception to the rules that bar his claims,
and that it erred in failing to exercise that authority because
not reviewing the merits of the claims will result in egregious
injustice. 	We agree with the district court’s conclusion that
Mr. Gardner’s claims could have been raised in prior proceedings
many years ago. 	We also conclude that Mr. Gardner has failed to
demonstrate any injustice that would require us to set aside the
statutory and procedural rules that control judicial review of
his claim. 	Therefore, we affirm the district court’s grant of
summary judgment in favor of the State.
BACKGROUND
¶3 	Our recitation of the facts and procedural history of
this case draws liberally from the federal magistrate judge’s
Report and Recommendation in Mr. Gardner’s federal habeas corpus
petition, the Tenth Circuit’s decision in Mr. Gardner’s federal

3 See Gardner v. Holden, 888 P.2d 608, 612 (Utah 1994). 	One
of Mr. Gardner’s claims in his first state post-conviction relief
proceeding was that his “trial counsel were ineffective because
they failed to clarify for the jury that Gardner was shot in the
chest and lung instead of in the shoulder.” 	Id. at 616. 	We
disposed of this claim summarily because it was frivolous. 	Id.
3 	No. 20102436
habeas corpus appeal, and our own decisions in Mr. Gardner’s
prior appeals to this court. 	Because Mr. Gardner’s claims in
this petition center on the sufficiency of the process he has
been afforded and the evidence considered by the courts that have
reviewed his claims, and given the profound importance of the
issues involved, we set forth the background of this case in some
detail.
I. 	THE MURDER OF MICHAEL BURDELL
¶4 	Mr. Gardner has been sentenced to death for the murder
of Michael Burdell, an attorney Mr. Gardner shot and killed while
attempting to escape from prison custody at a Salt Lake City
courthouse. 	On April 2, 1985, Mr. Gardner was transported from
the maximum security unit at the Utah State Prison to the
Metropolitan Hall of Justice in Salt Lake City. 	Scheduled to
appear in court to face charges for second degree murder, Mr.
Gardner instead attempted to carry out a plan to escape from
custody. 	As he entered the courthouse basement with his guards,
a female accomplice handed Mr. Gardner a gun, which he turned on
the guards. 	Mr. Gardner and the guards exchanged gunfire and Mr.
Gardner was shot in the chest and lung. 3 	The guards retreated to
the parking lot, and Mr. Gardner entered the archives room,
looking for a way out of the building. 	A court clerk, a prison
officer, and three attorneys were also in the archives room. 	Mr.
Gardner said he had been “shot” and “hit bad” and went back into
the lobby. 	When he left, two of the attorneys, Mr. Burdell and
Robert Macri, attempted to hide behind the open door to the
archives room. 	But Mr. Gardner reentered the archives room and
noticed the attorneys behind the door. 	Mr. Gardner walked to
within one-and-a-half to two feet of them, pointed the gun at Mr.
Macri and cocked the hammer. 	Mr. Burdell exclaimed, “Oh, my
God!” 	Mr. Gardner said, “Oh Fu--,” turned the gun to Mr.
Burdell, and after what one witness described as a “definite
pause,” fatally shot Mr. Burdell in the head. 	Mr. Gardner then
shot Mr. Burdell a second time.
¶5 	Mr. Gardner then forced the prison officer in the
archives room to accompany him up the stairs to the second-floor
lobby. 	As Mr. Gardner crossed the lobby, a uniformed bailiff was
coming downstairs to investigate the commotion. 	Mr. Gardner shot

4 Report and Recommendation of Magistrate Judge, Gardner v.
Galetka, No. 2:95-CV-846-TC, 2007 U.S. Dist. LEXIS 25643, at 97
(D. Utah Apr. 5, 2007) [hereinafter Magistrate Report].
5 Id.
6 Id.
7 Id.
8 Id.
No. 20100436 	4
and seriously wounded the bailiff and then proceeded up the
stairs. 	On the next floor, Mr. Gardner took hostage a vending
machine serviceman and forced the serviceman to accompany him
outside the building. 	As Mr. Gardner exited the courthouse, the
serviceman broke free and dived through a court service teller’s
window back inside the building. 	Once outside, Mr. Gardner,
wounded, still shackled, and surrounded by police, threw down his
gun and surrendered.
II. 	MR. GARDNER’S TRIAL, CONVICTION, AND DEATH SENTENCE
¶6 	At his trial for the murder of Mr. Burdell, Mr. Gardner
was represented by Andrew and James Valdez of Salt Lake Legal
Defenders Association. 	Their strategy was to argue that Mr.
Gardner was under such pain and physical distress after being
shot that shooting Mr. Burdell was an unintentional reaction--
that it was an accident or, at most, done with reckless disregard
for human life. 	Nevertheless, the jury convicted Mr. Gardner of
first degree murder, attempted first degree murder, aggravated
kidnaping, escape, and possession of a dangerous weapon by an
incarcerated person.
¶7 	At the penalty phase of the trial, the State presented
evidence that Mr. Gardner “posed a continuing threat even while
incarcerated and that previous attempts to deter [Mr. Gardner’s]
criminal behavior had failed.” 4 	Witnesses testified for the
State about criminal behavior Mr. Gardner had engaged in since
becoming incarcerated. 5 	For instance, the jury heard testimony
from twelve State witnesses that corroborated each of the
following instances of conduct: 	Mr. Gardner escaped from the
minimum security facility in 1981; 6 after his escape he stabbed
and beat a man at his former sister-in-law’s house without having
been provoked; 7 still out of custody after escaping from prison,
he instigated a shootout at a friend’s house that resulted in his
arrest; 8 after the shootout, he told the arresting deputy that he

9 Id. at 97-98
10 Id. at 98.
11 Id.
12 Id. at 98-99.
13 Id. at 99-100.
14 Id. at 100.
15 Id.
5 	No. 20102436
knew the deputy’s family and would have them killed; 9 also in
1981, he attempted to escape from the medium security facility at
the Utah State Prison; 10 in 1984, after an incident in medium
security caused him to be transferred to maximum security, he
attacked a member of the transporting tactical squad with a
screwdriver, only complied with officers’ orders after being
threatened with a stun gun, and, even then, threw his head back
hard, cracked an officer’s nose, and kicked at the officers,
bringing three of them down in the process; 11 also in 1984, upon
hearing from an officer that he would be transferred to maximum
security, Mr. Gardner spit in the officer’s face at least three
times, punched the wall, smashed his television by throwing it on
the floor, and threatened to kill the officer and his children; 12
also in 1984, Mr. Gardner escaped from custody after being
examined at the University Hospital by attacking his guard,
knocking him down, taking his loaded gun, pointing it at his
head, and forcing him to remove Mr. Gardner’s restraints--all of
which resulted in lost vision in one of the guard’s eyes, a nose
broken in sixteen places, four ruptured discs in the guard’s
back, and emergency surgery where physicians rebuilt the guard’s
eye socket from one of his ribs, placed a rod through his face to
anchor his cheekbones apart, and wired the bones in his face
together; 13 also during this escape, Mr. Gardner hijacked a
motorcycle-riding medical student at gunpoint and forced the
medical student to drive him to a nearby apartment building
where, in the laundry room, Mr. Gardner took the medical
student’s clothes and his wallet, put on the clothes, hit the
student with the gun and kicked him while he was on the ground,
and rode off on the student’s motorcycle; 14 in 1985, Mr. Gardner
was to be booked into jail, and as the officer approached, he
kneed her in the groin; 15 Mr. Gardner was responsible for the

16 Id. at 100-01.
17 Id. at 101-02.
18 Id. at 101.
19 Id. at 102-03.
20 Id. at 85.
No. 20100436 	6
1984 murder of Mel Otterstrom, who was tending bar at the Cheers
Tavern. 16
¶8 	Defense counsel called six witnesses to testify in
mitigation, although his trial counsel would later testify that
Mr. Gardner prevented them from calling other witnesses and
especially certain family members that might have presented
evidence about his family background, his intellectual
limitations, and possible physical and sexual abuse he suffered
as a child. 	What the jury did hear was evidence that Mr.
Gardner’s older brother went to prison while they were still
young; that Mr. Gardner had family problems as a child; that Mr.
Gardner was taken from his home and put into state custody when
he was eight or nine years old; that around that time, Mr.
Gardner began missing school and inhaling (“huffing”) gas; that
the State moved the young Mr. Gardner from placement to
placement, including stays at shelter homes, the detention
center, foster homes, and the State Industrial School; 17 that the
difficult living conditions endured by Mr. Gardner while at the
State Industrial School would ultimately result in the school’s
closure; 18 that while at the State Industrial School, Mr.
Gardner’s resident counselor took a strong liking to Mr. Gardner,
had a “special relationship” with him, and found him “real
likeable,” “real cooperative in the unit,” “real outgoing,” and
“always ready to help the staff”; and that when Mr. Gardner was
ten years old, his probation officer found him to be “a very
charming, engaging, likeable young man,” who was also cooperative
and had a great deal of potential, but also suffered from a lack
of parental supervision and an environmental situation that
evoked empathy. 19 	To dispel the potential notion the jury might
have had that a life sentence might result in a fairly short
prison term, defense counsel called Dennis Fuchs from the Utah
Board of Pardons and Parole, who testified that of the eleven
first degree murderers he had reviewed while serving on the
Board, only two had received parole--one after having served
twenty years in prison and the other after having served thirteen
years in prison. 20

21 Gardner v. Holden, 888 P.2d 608, 613 (Utah 1994).
22 Id.
23 Id. at 618.
24 Id.
25 Id.
26 Id.
27 Id. at 618 (internal quotation marks omitted).
7 	No. 20102436
¶9 	Defense counsel also called Dr. Heinbecker, a
psychiatrist, to testify regarding Mr. Gardner’s mental status.
Dr. Heinbecker only had twenty-four hours to prepare to
testify. 21 	He prepared by interviewing Mr. Gardner and Mr.
Gardner’s mother and brother, and by reviewing Mr. Gardner’s
previous medical and psychological records. 22 	Dr. Heinbecker did
not administer any psychological tests. 	He instead relied on
psychological tests prepared by prison officials and others. 	At
trial, based on Mr. Gardner’s medical history and these tests,
Dr. Heinbecker testified that Mr. Gardner suffered from organic
brain damage, which, coupled with other mitigating circumstances
explained Mr. Gardner’s antisocial behavior. 23 	He testified that
Mr. Gardner had contracted meningitis when he was four years old
and had sniffed glue and gasoline from age nine until after age
thirteen--both of which can cause brain damage. 24 	Dr. Heinbecker
also based his opinion on the results of psychological tests that
showed high scores on some parts and low scores on other parts,
also evidence of brain damage. 25 	Dr. Heinbecker also testified
that Mr. Gardner “grew up in an unstable and impoverished
environment”; that he “had been institutionalized for most of his
life” and had thus “absorbed the moral values of others involved
in antisocial criminal conduct”; that his “antisocial personality
disorder . . . might be explained genetically” because his
“grandfather, brother, sister, nephew, three cousins, and two
half-siblings” had all experienced trouble with the law; and that
Mr. Gardner’s “problems stemmed from parental neglect and
inadequate parenting.” 26 	The State challenged this diagnosis
with a psychological evaluation of Mr. Gardner by Dr. John Gill,
who stated that his “findings [were] not indicative of blatant
organic impairment.” 27 	When asked to explain Dr. Gill’s
statement, Dr. Heinbecker replied, “Well, you know, when he says
it is not indicative of blatant organic impairment, it sounds to
me like he is hedging his bets on whether there is organic

28 Id. at 618-19 (internal quotation marks omitted).
29 Magistrate Report, supra note 4, at 96.
No. 20100436 	8
impairment or not. 	In other words, he is saying, to me, more
sophisticated testing ought to be done.” 28
¶10 	At the end of the penalty phase, the jury unanimously
found three aggravating factors: 	(1) Mr. Gardner knowingly
created a risk of death to a person other than the person he
killed; (2) Mr. Gardner committed the homicide to effect his
escape from custody; and (3) Mr. Gardner had previously been
convicted of two felonies involving the threat of violence to a
person. 29 	Ultimately, the jury sentenced Mr. Gardner to death.
III. 	MR. GARDNER’S DIRECT APPEAL IS DENIED
¶11 	On direct appeal, Mr. Gardner raised at least sixteen
challenges to his conviction and sentence, including that:
(1) the district court abused its discretion when it denied Mr.
Gardner a change of venue; (2) the trial judge should have
recused himself because he worked in the Hall of Justice where
the shooting occurred; (3) Utah’s death penalty scheme was
unconstitutional; (4) evidence of two of his prior convictions
should not have been admitted during the guilt phase of his
trial; (5) he was improperly denied a challenge for cause; (6)
the excessive presence of security in the courtroom denied him a
right to a fair trial; (7) the trial judge violated his rights
under the Confrontation Clause when he cut short recross-
examination of a witness; (8) the testimony of Wayne Jorgensen, a
corrections officer, about a conversation with Mr. Gardner
violated Mr. Gardner’s rights under Miranda and Massiah; (9) the
trial court gave an erroneous jury instruction on the lesser
offense of manslaughter; (10) the trial court erred when it gave
an oral instruction that might lead jurors to believe they had to
acquit Mr. Gardner of the charged offense before considering
lesser-included offenses; (11) the trial court erred when it
denied his motion for a directed verdict; (12) the trial court
erred when it admitted, as an aggravating factor in the penalty
phase, evidence of a previous homicide he had committed; (13) his
sentence was not proportional to other sentences given in Utah
capital cases; (14) prosecutors had allegedly engaged in several
instances of misconduct; (15) he received ineffective assistance
of counsel because his attorneys failed to object to testimony by
Officer Jorgensen, Dr. Heinbecker, and Mr. Fuchs; and (16) his
conviction resulted from impermissible cumulative error. 	We were
“convinced that [Mr. Gardner’s] constitutional rights were
cautiously guarded at all phases of the proceeding” and we upheld

30 State v. Gardner, 789 P.2d 273, 288 (Utah 1989).
31 Gardner v. Utah, 494 U.S. 1090 (1990).
32 Gardner v. Holden, 888 P.2d 608, 611 (Utah 1994).
33 Id.
34 Id.
35 Id. at 623.
36 Id. at 614 (refusing to address the following issues on
the merits: 	“(1) error by the trial court in admitting
hypnotically enhanced testimony; (2) error by the trial court in
not advising Gardner of his right to remain silent and not
testify; (3) violation of Gardner’s right to be present at all
the hearings in his case; (4) consideration by the jury of
impermissible information about the victim; (5) failure to
instruct the jury on all the statutory mitigating circumstances
in the penalty phase; and (6) failure to instruct the jury in the
penalty phase that the existence of aggravating factors had to be
found beyond a reasonable doubt before they could be considered
in deciding to impose the death penalty”).
9 	No. 20102436
Mr. Gardner’s convictions and sentences, including his death
sentence. 30 	Our decision on Mr. Gardner’s direct appeal issued
in 1989; the United States Supreme Court denied his writ of
certiorari in 1990. 31
IV. 	MR. GARDNER’S FIRST STATE PETITION FOR POST-CONVICTION
RELIEF IS DENIED
¶12 	Mr. Gardner then filed a petition for post-conviction
relief in state district court. 32 	The district court ruled that
Mr. Gardner had been denied effective assistance of counsel
because his trial counsel failed to give Dr. Heinbecker adequate
time to test and evaluate Mr. Gardner and his appellate counsel
failed to research and brief issues. 33 	So, in 1991 the district
court ruled that Mr. Gardner was entitled to a new penalty
hearing and a new appeal. 34
¶13 	But when the State appealed and Mr. Gardner cross-
appealed, we vacated the trial court’s judgment. 35 	We first held
that six of Mr. Gardner’s claims for relief could have been
raised in his direct appeal but were not, so we declined to reach
their merits. 36 	This left two issues that we did reach:
“(1) ineffective assistance of counsel at trial and on direct

37 Id. at 613-14.
38 See id. at 615-17.
39 See id. at 617.
40 Id. (internal quotation marks omitted).
41 Id. at 617-18.
42 Id. at 619.
43 Id. at 622.
No. 20100436 	10
appeal; and (2) error in the habeas [corpus] proceeding in not
appointing an investigator and an expert witness at state expense
to assist Gardner in prosecuting his petition.” 37
¶14 	First, we summarily rejected three of Mr. Gardner’s
ineffective assistance claims and rejected three others after
reaching the merits. 38 	The ineffective assistance claim relevant
to the current appeal--that trial counsel was ineffective in
failing to provide Dr. Heinbecker adequate time to examine Mr.
Gardner psychologically--was one of the bases for the district
court’s vacation of Mr. Gardner’s death sentence and grant of a
new penalty hearing. 39 	The district court held that because Dr.
Heinbecker was given inadequate time to prepare, Mr. Gardner was
deprived of a “satisfactory mental health evaluation” that could
show evidence of “possible organic brain damage or other
mitigating information.” 40 	But we held that “it was Gardner’s
burden, in the [post-conviction] proceeding, to adduce what
favorable evidence could have been presented in his behalf if Dr.
Heinbecker had been given more time to prepare,” and that “[i]n
fact, Dr. Heinbecker did not indicate that he might have produced
any new evidence.” 41 	Because Mr. Gardner “proved no prospect of
any other information of mitigating evidence,” we held that Mr.
Gardner was not prejudiced by “defense counsels’ failure to
provide more time to Dr. Heinbecker to prepare.” 42
¶15 	Second, Mr. Gardner argued that he was entitled to
state funds for expert witnesses and an investigator to aid him
in his post-conviction proceedings and that denial of these funds
“denied him the right to the effective assistance of counsel, due
process, meaningful access to the courts, and equal protection
under the law.” 43 	We first held that no statute at the time even
guaranteed Mr. Gardner the right to state-funded counsel for his
post-conviction proceeding, much less “to state-compensated

44 Id.
45 Id.
46 Id. at 623.
47 Id.
48 Gardner v. Holden, 516 U.S. 828 (1995).
49 See Gardner v. Galetka, 2004 UT 42, ¶ 5, 94 P.3d 263
(recounting the background of the federal proceedings).
50 Magistrate Report, supra note 4, at 4.
51 Gardner v. Galetka, 2004 UT 42, ¶ 5.
52 Gardner v. Galetka, No. 2:95-CV-846-TC, 2007 U.S. Dist.
LEXIS 25651, at *9 (D. Utah, Apr. 5, 2007).
11 	No. 20102436
experts and investigators.” 44 	We then held that there might “be
extraordinary cases in which a petitioner for [post-conviction
relief] might be entitled under the Utah Constitution to state-
compensated counsel, expert witnesses, or investigators,” but
that Mr. Gardner was not so entitled because he “ha[d] not shown
that he could not adequately pursue his [post-conviction] claims
without appointed investigators and expert witnesses.” 45
Important to this holding was our finding that “Dr. Heinbecker’s
testimony failed to show any possibility that further testing
would have shown any mitigating facts.” 46 	We concluded that Mr.
Gardner was not entitled to a new penalty hearing or appeal, and
we vacated the district court’s judgment. 47 	Our decision issued
in 1994; the United States Supreme Court denied certiorari in
1995. 48
V. 	MR. GARDNER FILES HIS FEDERAL HABEAS CORPUS PETITION AND
EVIDENTIARY HEARINGS ARE HELD
¶16 	In January 1997, Mr. Gardner filed a petition for writ
of habeas corpus in the United States District Court for the
District of Utah. 49 	Mr. Gardner prepared his petition with the
help of court-appointed experts and investigative services. 50 	In
his petition, he raised twenty-two challenges to his conviction
and sentence. 51 	These claims were referred to a magistrate judge
for evaluation. 52

53 Magistrate Report, supra note 4, at 6.
54 Id. at 72-85.
55 Id. at 77.
56 Id.
57 Id. at 78-79.
58 Id. at 78.
59 Id.
60 Id.
61 Id.
62 Id.
No. 20100436 	12
¶17 	The magistrate judge held evidentiary hearings on
certain of Mr. Gardner’s issues in September and October 1999. 53
One of the issues argued at the evidentiary hearing was whether
Mr. Gardner’s trial counsel was ineffective for not having given
Dr. Heinbecker adequate time to prepare. 54 	In these hearings,
Mr. Gardner’s court-appointed experts presented mitigation
evidence--ostensibly evidence Dr. Heinbecker would have found had
he been given adequate time to prepare during the penalty phase
of the trial. 	Dr. Linda Gummow, a neuropsychologist, testified
that she administered Mr. Gardner twenty-three tests, “including
the Halstead-Reitan battery, memory tests, concentration tests,
tests of sense of touch, motor tests, tactical tests, academic
tests, and personality tests.” 55 	Both she and another of Mr.
Gardner’s experts, psychiatrist Dr. William Logan, testified that
the results of these tests indicated that Mr. Gardner had
suffered brain damage, which Dr. Logan characterized as being
mild. 56 	After speaking with Mr. Gardner about his background,
both doctors also opined about the causes of his brain damage. 57
Mr. Gardner’s mother drank large amounts of alcohol while she was
pregnant with him. 58 	She also had syphillis. 59 	When Mr. Gardner
was fifteen months old, he ingested Purex. 60 	When he was four
years old, he suffered from meningoccal meningitis. 61 	He began
huffing gasoline at about age five or six and continued this and
other forms of huffing until he was at least eighteen. 62 	When he
was still young, he played with mercury his stepfather had

63 Id.
64 Id.
65 Id. at 78-79.
66 Id. at 79.
67 Id. at 79-80.
68 Id. at 80.
69 Id.
70 Id.
71 Id.
72 Id.
13 	No. 20102436
stolen. 63 	Mr. Gardner was using marijuana by age ten, abusing
alcohol by age eleven, and also “abused hallucinogens,
amphetamines, various opiates, barbiturates, and
benzodiazepines.” 64 	He also experienced head trauma as a result
of falling while passing out a couple of times and during
physical fights, and as a result of a car accident when he was
fourteen. 65 	The doctors also testified that an early diagnosis
of attention deficit disorder, difficulties in school, a tic that
surfaced when Mr. Gardner was eight years old, and lagging bone
development--characteristic of a child suffering from
malnutrition or fetal alcohol syndrome--all indicated that Mr.
Gardner’s brain damage likely happened at an early age. 66
¶18 	These experts and Dr. Craig Haney, a professor of
psychology at the University of California, Santa Cruz, also
testified to details about Mr. Gardner’s disadvantaged upbringing
that might have led to emotional disturbance. 67 	For instance, as
a baby, Mr. Gardner lived in a home that had been condemned and
padlocked by the sanitation department. 68 	As a young child, Mr.
Gardner’s family “moved frequently, always living in
environmentally deprived areas and substandard housing.” 69 	Mr.
Gardner’s parents separated when he was under a year old. 70
There was some evidence that Mr. Gardner’s mother beat her
children. 71 	She also “neglected her children” and “spent a
significant amount of time in bars and entertaining different men
in her home.” 72 	There is also evidence that Mr. Gardner’s father

73 Id.
74 Id.
75 Id.
76 Id. at 80-81.
77 Id. at 81.
78 Id.
79 Id.
80 Id.
81 Id.
82 Id. at 82.
No. 20100436 	14
physically and emotionally abused him. 73 	Mr. Gardner was
diagnosed with enuresis (i.e., bedwetting), a possible indicator
of severe emotional disturbance, at age eight. 74 	His doctor at
the time thought Mr. Gardner’s “family was a setup for emotional
stress.” 75 	Mr. Gardner and his brother were sexually abused by a
foster parent. 76 	As an adolescent, Mr. Gardner lived on the
streets and worked as a prostitute. 77
¶19 	Dr. Gummow testified that Mr. Gardner’s brain damage
renders him unable “to change his plan once the plan is in
action, and instead causes him to persist unwisely toward a
goal.” 78 	She suggested that when Mr. Gardner shot Mr. Burdell,
he was “functioning on automatic pilot and his rational reasoning
process, or choice making process, shut[] off.” 79 	Dr. Logan
added that the physical trauma from Mr. Gardner’s gunshot wound,
“combined with his brain damage[,] was probably the cause of him
acting in a very impulsive way when he shot Burdell,” and opined
that Mr. Burdell’s shooting was “spontaneous rather than
intended.” 80
¶20 	But Mr. Gardner’s experts did not go unchallenged. 	The
prosecutor at Mr. Gardner’s trial, Robert Stott, testified that
had an expert like Dr. Gummow testified on Mr. Gardner’s behalf
at his trial, the State would have called its own expert rebuttal
witness. 81 	So at the evidentiary hearing, the State called Dr.
Noel Gardner as an example of how Mr. Gardner’s mitigation
evidence would have been rebutted at trial. 82 Dr. Gardner

83 Id.
84 Id. (internal quotation marks omitted).
85 Id. (internal quotation marks omitted).
86 Id.
87 Id.
88 Id. at 83.
89 Id. at 83-84.
90 Id. at 83 (internal quotation marks omitted).
91 Id. (alteration in original).
15 	No. 20102436
interviewed Mr. Gardner at the prison. 83 	He said, “It was very
clear to me that [Mr. Gardner] did not suffer from any major
mental illness,” and that, as to brain injury, “very, very mild
elements present, but it certainly was not obvious, even to an
experienced observer.” 84 	Dr. Gardner disagreed with Drs. Gummow
and Logan that the results of their testing indicated brain
injury. 	Instead, Dr. Gardner characterized any brain dysfunction
as “very minimal” and testified that Mr. Gardner has antisocial
personality disorder. 85 	Mr. Gardner told Dr. Gardner that “he
did not like to kill people unless it was necessary.” 86 	Dr.
Gardner testified that Mr. Gardner could have controlled his
behavior when he tried to escape from the courthouse, “but,
consistent with antisocial personality disorder, . . . was
unwilling to conform his behavior to limits.” 87
¶21 	The State then called Dr. Stephen Golding, a forensic
clinical psychologist and University of Utah professor. 88 	Mr.
Gardner had told Dr. Golding that before the day of the shooting
and escape attempt, he had heard that the gun waiting for him at
the courthouse would be larger than requested, but that Mr.
Gardner “decided to go ahead with the plan because he was tired
of being in prison and wanted to get out and party”; and that
because he was bored and wanted to party, it “was worth the
risk.” 89 	Based on the record and his own testing of and
discussion with Mr. Gardner, Dr. Golding concluded that Mr.
Gardner is “very much the opposite of impulsive” because he “does
what he wants to do when he wants to do it for reasons that he
wants.” 90 	Dr. Golding also testified that Mr. Gardner “is by no
means . . . impulsive in the sense of out of control.” 91

92 Id.
93 Id. at 83-84.
94 Id. at 84.
95 Id.
96 Id.
97 Id.
98 Id.
99 Id. at 7, 237.
No. 20100436 	16
¶22 	Dr. Golding diagnosed Mr. Gardner with antisocial
personality disorder “in both the personality sense and in the
behavioral sense.” 92 	As an example of this diagnosis, Dr.
Golding cited Mr. Gardner’s refusal to take responsibility for
Mr. Burdell’s death; Mr. Gardner instead blamed Officer Hensley,
one of his guards, for being “a coward and back[ing] away when he
saw that [Mr. Gardner] had a gun” instead of forcing Mr. Gardner
to the ground so that “no one would have gotten hurt.” 93 	Dr.
Golding also questioned the reliability of Dr. Gummow’s tests as
indicators of the kind of brain damage from which she claimed Mr.
Gardner suffered, arguing, for instance, “that the Wisconsin Card
Sorting Test has been found not to be a good indicator of frontal
lobe damage.” 94 	Dr. Golding concluded that although Mr. Gardner
may have had genetic vulnerabilities, he was “not compelled to do
things in the sense that he ha[d] no choice.” 95
¶23 	Finally, Dr. Jonathon Pincus, a neurologist for the
State, further called into question the reliability of Dr.
Gummow’s test results. 96 	He testified that neuroimaging failed
to show any damage to Mr. Gardner’s frontal lobes. 97 	Further,
Dr. Pincus testified that Mr. Gardner told him that he
“constantly--even now--thinks of escaping from prison.” 98
VI. 	THE MAGISTRATE JUDGE ENTERS A REPORT AND RECOMMENDS DENIAL
OF MR. GARDNER’S HABEAS CORPUS PETITION
¶24 	After the evidentiary hearings partially outlined
above, briefing by both parties, and oral argument, the
magistrate judge issued a report and recommendation on August 13,
2003. 99 	In determining the issue of whether Mr. Gardner’s
counsel was ineffective for failing to prepare and present
adequate mitigation evidence, the magistrate judge reviewed Mr.

100 Id. at 34.
101 Id.
102 Id. at 92 (emphasis added).
103 Id. at 95 (internal quotation marks omitted).
104 Id. (emphasis added) (internal quotations and numbering
omitted).
17 	No. 20102436
Gardner’s conviction to determine whether the Utah court had
deprived Mr. Gardner of his fundamental constitutional rights. 100
State court findings of fact were given a presumption of
correctness, while mixed questions of fact and law were reviewed
de novo. 101 	The magistrate judge considered each of the
ineffective assistance claim’s elements--deficient performance
and prejudice--separately. 	First, the magistrate judge held that
Mr. Gardner’s trial counsel’s performance was deficient:
[H]aving carefully reviewed the record, this
court cannot say that counsels’ decision not
to more thoroughly investigate and present
evidence of [Mr. Gardner’s] disturbing
background and possible organic brain damage
can be justified as strategic; instead
counsels’ failure to carefully investigate
and present such evidence was the result of
lack of investigation and preparation. 	Trial
counsel’s investigation of [Mr. Gardner’s]
background and possible brain damage was
haphazard at best. 102
¶25 	But the magistrate judge was not convinced that Mr.
Gardner was prejudiced by his trial counsel’s deficient
performance. 	The magistrate judge noted that prejudice required
showing a reasonable probability that, had Dr. Heinbecker been
given adequate time to prepare, the jury “would have concluded
that the balance of aggravating and mitigating circumstances did
not warrant death.” 103 	Specifically, the magistrate judge
considered “the strength of the State’s case, the aggravating
circumstances the jury found, the mitigating evidence defense
counsel did present, and the additional mitigating evidence the
defense might have presented.” 104 	The magistrate judge first
noted that the State’s case for guilt was very strong--it was
never disputed that Mr. Gardner shot and killed Mr. Burdell,
rather the defense tried to argue that the shooting was not

105 Id.
106 Id. at 95-96.
107 Id. at 96.
108 Id.
109 Id.
110 See id. at 97-101.
111 Id. at 97.
112 Id. at 101-03.
No. 20100436 	18
intentional. 105 	But the State presented eyewitness testimony that
Mr. Gardner aimed at Mr. Burdell, paused for a second or more,
and then fired the gun. 106 	Additionally, there was strong
evidence that during his escape, Mr. Gardner was willing to and
did kidnap and shoot other people. 107 	Finally, the State
presented the testimony of an officer who claimed Mr. Gardner
admitted to him that he intended to kill Mr. Burdell and would
have killed anyone else who tried to stop him from escaping. 108
The magistrate judge concluded that the State had a strong case
that Mr. Gardner intended to kill Mr. Burdell. 109
¶26 	The magistrate judge then considered the strength of
the aggravating evidence the jury had seen at trial. 	The
magistrate judge considered the testimony of each of the twelve
witnesses who testified about Mr. Gardner’s criminal behavior
since becoming incarcerated. 110 	The magistrate judge concluded
that “the State presented strong evidence during the sentencing
phase that [Mr. Gardner] posed a continuing threat even while
incarcerated and that previous attempts to deter [Mr. Gardner’s]
criminal behavior had failed.” 111
¶27 	The magistrate judge then analyzed the evidence that
Mr. Gardner’s trial counsel presented in mitigation. 	Here the
magistrate judge recalled the testimony of the witnesses who
detailed the difficulty of Mr. Gardner’s childhood, Mr. Fuchs’s
testimony regarding the amount of time convicted first degree
murderers actually serve, and Dr. Heinbecker’s testimony
regarding evidence that Mr. Gardner had suffered organic brain
damage. 112
¶28 	Finally, the magistrate judge considered what evidence
might have been presented had Dr. Heinbecker been given adequate

113 Id. at 104.
114 Id.
115 Id.
116 Id. at 105.
19 	No. 20102436
time to prepare. 	The magistrate judge considered here the
testimony of Drs. Gummow, Logan, and Haney. 113 	He concluded that
given adequate time to prepare, a defense expert might have been
able to present evidence of Mr. Gardner’s troubled life,
including evidence
of the difficult family and economic
circumstances into which [Mr. Gardner] was
born, of the neglect and abuse he endured
from a young age, of the difficulties he
experienced in school, of the various state
placements he was sent to during most of his
childhood, and of the startling lack of
supervision and appropriate discipline he
received from his parents, which resulted in
such behaviors as drug use from a very young
age. 114
¶29 	The magistrate judge credited this information as
focusing “on lowering [Mr. Gardner’s] culpability by presenting
evidence that factors beyond [his] control, such as brain damage,
genetics, and a childhood involving neglect and physical,
emotional, and sexual abuse, greatly contributed to [Mr.
Gardner’s] behavior.” 115
¶30 	Using these considerations to guide his decision, the
magistrate judge concluded that the State had a very strong case
that Mr. Gardner was “a continuing danger to others and . . . a
prisoner who [was] eager to escape and willing to commit more
violent crimes.” 116 	The magistrate judge then concluded that some
of the testimony Mr. Gardner’s experts presented at the
evidentiary hearing would not have helped--and indeed would have
hurt--Mr. Gardner’s case for mitigation. 	Specifically, Dr.
Gummow testified that Mr. Gardner was dangerous, that it was
difficult to assess whether Mr. Gardner could not control his
impulses or whether he chose not to, that Mr. Gardner created his
own stressful situation when he tried to escape, and that Mr.
Gardner admitted that “all he thought about [while he was trying

117 Id. at 106 (alteration in original) (internal quotation
marks omitted).
118 Id. at 106-07 (internal quotation marks omitted).
119 Id. at 107 (internal quotation marks omitted).
120 Id. at 107-08.
121 Id. at 111.
122 Id. at 82-83, 111.
No. 20100436 	20
to escape] was getting out and getting back to doing cocaine.” 117
Dr. Logan admitted that, even if Mr. Gardner had brain damage,
he still bore some responsibility for his crimes, that not all of
his criminal activities were a result of brain damage, that Mr.
Gardner created his own stressful situation when he tried to
escape, that Mr. Gardner was still a danger to society, that Mr.
Gardner can sometimes control his behavior and not hurt others,
and even that some of the evidence he presented could “cut both
ways,” meaning it was also aggravating evidence of future
dangerousness. 118 	Dr. Haney also admitted that Mr. Gardner’s
disadvantaged background might cut both ways and that apart from
the facts of the crime itself, a defendant’s future dangerousness
and the need to stop the defendant from killing again “tends to
be the most discussed topic[]” during jury deliberation. 119 	These
“double-edged sword” admissions by the defense experts were
consistent with the testimony of the State’s rebuttal
witnesses. 120
¶31 	The magistrate judge also considered that the jury
would have heard negative aspects of Mr. Gardner’s background
that had not originally been presented if the experts who
testified at the federal habeas corpus hearings had testified at
trial. 121 	While the magistrate judge considered the defense
expert testimony, on its own, a “double-edged sword,” the
magistrate judge also reasoned that the State would have further
weakened its mitigating value by putting on rebuttal witnesses
like Drs. Gardner and Golding, who opined that Mr. Gardner had
antisocial personality disorder and not brain damage. 122 	After a
review of relevant case law, the magistrate judge ultimately
concluded that
[i]n light of the State’s strong case,
including its aggravating evidence, no
reasonable probability exists that, had trial
counsel presented the additional mitigating

123 Id. at 116 (emphasis added).
124 Id. at 236.
125 Gardner v. Galetka, No. 2:95-CV-846-TC, 2007 U.S. Dist.
LEXIS 25651, at *9-10 (D. Utah Apr. 5, 2007).
126 Id. at *1 n.1.
127 Id. at *10; Gardner v. Galetka, 2004 UT 42, ¶ 5, 94 P.3d
263.
128 Id.
21 	No. 20102436
evidence presented in this proceeding, and
had trial counsel provided Dr. Heinbecker
sufficient time to prepare to testify, the
jury would have imposed a sentence less than
death. 	The court therefore concludes that no
prejudice under Strickland resulted from
counsels’ failure to present this mitigating
evidence and therefore rejects [Mr.
Gardner’s] claim. 123
¶32 	After considering the other issues before the federal
court, the magistrate judge recommended that Mr. Gardner’s
Petition for a Writ of Habeas Corpus be denied. 124
VII. 	MR. GARDNER’S NEW AND ADDITIONAL FEDERAL INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIM IS ULTIMATELY DENIED AFTER HE FILES A
SECOND STATE PETITION FOR POST-CONVICTION RELIEF IN STATE COURT
¶33 	In 1999, two years after Mr. Gardner filed his first
federal habeas corpus petition, he raised in that action a new
claim challenging the effectiveness of his appellate counsel for
failing to appeal the trial court’s instruction to the jury
regarding the word “knowingly.” 125 	This claim was added to Mr.
Gardner’s First Amended Petition on April 21, 2000. 126 	The
federal district court refused to determine whether or not this
claim was procedurally barred under Utah law, and instead
directed Mr. Gardner to file a second state petition for post-
conviction relief to exhaust the claim. 127 	The federal district
court held this unexhausted claim in abeyance pending the state
court resolution. 128
¶34 	Mr. Gardner filed his second state petition for post-

129 Id. ¶ 13.
130 Id. ¶ 8.
131 Id.
132 Id. ¶¶ 8, 13, 19.
133 Id. ¶ 16 (describing Mr. Gardner’s claim as “absurd”).
134 Gardner v. Galetka, 2007 U.S. Dist. LEXIS 25651, at *11.
135 Id.
136 Id.
No. 20100436 	22
conviction relief on May 12, 2000. 129 	The State moved for summary
judgment and the Utah district court granted the State’s motion
after reaching the merits of Mr. Gardner’s claim. 130 	We affirmed
the district court’s grant of summary judgment, but not on the
merits. 131 	Instead, we affirmed on the alternative ground that it
was improper to reach the merits of Mr. Gardner’s claim because
it was procedurally barred by the 1996 Post-Conviction Remedies
Act (“PCRA”) since he could have brought the claim in his first
state petition for post-conviction relief. 132 	We also noted that,
while we had the power to set aside the procedural bars of the
PCRA, any “good cause” exception to the procedural bar did not
apply because Mr. Gardner’s claim was not “facially plausible.” 133
¶35 	Upon returning to federal court, Mr. Gardner was
informed that our decision did not address the issues the federal
court needed it to address. 	According to the federal district
court, federal habeas corpus law required a determination of the
question of procedural default based on the law in effect at the
time the first state petition for post-conviction relief was
filed. 134 	The relevant date, it concluded, was 1990. 135 	Because
we resolved Mr. Gardner’s claims according to the law in effect
when he filed his second petition for post-conviction relief in
state court, the federal district court certified to us the
following question: 	“If Mr. Gardner had raised the ineffective
assistance of counsel claim at issue in [Mr. Gardner’s second
state petition for post-conviction relief], in state court in a
successive petition in 1990, would the petition have been
procedurally barred?” 136 	We responded by holding
that, in 1990, Gardner’s successive
post-conviction claim regarding the
ineffective assistance of counsel would have

137 Gardner v. Galetka, 2007 UT 3, ¶ 2, 151 P.3d 968
(emphasis added) (citation omitted).
138 Gardner v. Galetka, 2007 U.S. Dist. LEXIS 25651, at *17-
18.
139 Gardner v. Galetka, 568 F.3d 862, 884 (10th Cir. 2009)
(citing Michigan v. Long, 463 U.S. 1032 (1983)). 	In Michigan v.
Long, the United States Supreme Court noted that “jurisdictional
concerns” preclude federal court review of state court judgments
that rest on “adequate and independent state grounds.” 	463 U.S.
at 1042.
140 Gardner v. Galetka, 568 F.3d at 884.
23 	No. 20102436
been procedurally barred because it could
have been brought in a prior post-conviction
proceeding. 	The “good cause” common law
exceptions to the procedural bar that we
established in Hurst v. Cook were unavailable
to Gardner because his successive
post-conviction claim is “facially
implausible” and therefore would have been
summarily dismissed without substantive
review on its merits. 	As a result, Gardner’s
successive post-conviction petition would
have been procedurally barred as a matter of
1990 state law. 137
¶36 	Despite our holding that the claim would have been
procedurally barred on state law grounds, because we based part
of that holding on a “threshold finding” that Mr. Gardner’s claim
was of a “frivolous” nature that would prevent any exception to
the procedural bar from applying, the federal district court
proceeded with the claim as though we had reached the merits of a
federal issue, and thus the federal district court decided to
reach the merits. 138 	The Tenth Circuit would later find that the
federal district court had not needed to reach the merits of the
claim because the PCRA bar was an independent state law ground
for rejecting Mr. Gardner’s claim. 139 	The Tenth Circuit concluded
that merely because exceptions to that procedural rule might
exist, the rule was no “less procedural” as a result. 140
Nevertheless, on the merits, the federal district court concluded
that Mr. Gardner had not affirmatively proved prejudice on his
ineffective assistance of counsel claim on the “knowingly”
instruction, and on April 5, 2007, denied his petition as to this

141 Gardner v. Galetka, 2007 U.S. Dist. LEXIS 25651, at *29-
31.
142 Gardner v. Galetka, 568 F.3d at 884.
143 Gardner v. Galetka, No. 2:95-CV-846-TC, 2007 U.S. Dist.
LEXIS 25643, at *2, 21-22 (D. Utah Apr. 5, 2007).
144 Id. at *10-11.
145 Id. at *10.
146 Id. at *10-11.
147 Id. at *11.
No. 20100436 	24
claim. 141 	The Tenth Circuit would eventually agree that, even
though the district court did not need to reach the merits, the
district court was correct in concluding that the “knowingly”
claim failed on its merits. 142
VIII. 	THE FEDERAL DISTRICT COURT ADOPTS THE MAGISTRATE JUDGE’S
RECOMMENDATION AND DISMISSES THE REMAINDER OF MR. GARDNER’S
HABEAS CORPUS PETITION
¶37 	The same day the federal district court decided Mr.
Gardner’s “knowingly” claim, it decided his other claims in a
separate order. 	Making only minor changes to the magistrate
judge’s findings, the federal district court adopted those
findings and also adopted the magistrate judge’s recommendation
that Mr. Gardner’s Petition for Writ of Habeas Corpus be
denied. 143 	On the issue of whether trial counsel was ineffective
in failing to produce mitigation evidence, the court agreed with
the magistrate judge’s findings, but added clarification. 144 	Mr.
Gardner argued “that the Magistrate Judge failed to consider that
under Utah law, the State must prove beyond a reasonable doubt
that the aggravating circumstances outweigh the mitigating
circumstances” and that he ignored Utah’s requirement that a jury
imposing a death sentence be unanimous. 145 	After reviewing the
report, the district court found that the magistrate judge did
take Utah law into consideration. 146 	The district court also
added that it considered Utah law when conducting its own de novo
review of the report, and it concluded that “[e]ven in light of
the State’s burden of establishing that the aggravating
circumstances outweigh the mitigating circumstances and the
requirement of unanimity, the court finds that Mr. Gardner has
failed to show the necessary prejudice.” 147 	When addressing an
earlier ineffective assistance of counsel claim, the federal

148 Id. at *4-5.
149 See id. at *9. 	The Tenth Circuit also noted that
“[u]nlike the magistrate judge, the district court did not
address the deficiency issue, concluding that there was no
prejudice.” 	Gardner v. Galetka, 568 F.3d 862, 877 (10th Cir.
2009).
150 See Gardner v. Galetka, No. 2:95-CV-846-TC, 2007 U.S.
Dist. LEXIS 25651, at *30-31 (D. Utah Apr. 5, 2007); Gardner v.
Galetka, 2007 U.S. Dist. LEXIS 25643, at *21-22.
151 Gardner v. Galetka, 568 F.3d 862, 870 (10th Cir. 2009).
152 Id.
153 Id. (emphasis added) (quoting 28 U.S.C. § 2254(d)(1) and
(2)).
25 	No. 20102436
district court noted that it did not need to address that claim’s
deficient-performance prong if it first concluded there was no
prejudice. 148 	Finding no prejudice here, it also did not address
the deficient-performance prong of this ineffective assistance of
counsel claim. 149 	On April 5, 2007, the federal district court
entered two final orders dismissing this and all other claims
raised in Mr. Gardner’s First Amended Petition for Habeas
Corpus. 150
IX. 	THE TENTH CIRCUIT AFFIRMS THE DECISION OF THE FEDERAL
DISTRICT COURT
¶38 	Mr. Gardner timely appealed the federal district
court’s final orders that, together, rejected all his claims. 151
Pursuant to the Anti-terrorism and Effective Death Penalty Act
(“AEDPA”), the Tenth Circuit applied a standard of review
deferential to Utah courts. 152 	Under this standard of review, Mr.
Gardner could only prevail if
the state adjudication on the merits
“(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law as
determined by the Supreme Court of the United
States; or (2) resulted in a decision that
was based on an unreasonable determination of
the facts in light of the evidence presented
in the State court proceeding.” 153

154 Id. at 877-79. 	Both parties apparently believed that
federal case law required the Tenth Circuit to conduct de novo
review of this claim. 	See id.
155 Id. at 883.
156 See id. at 880-83.
157 Id. at 880-81 (emphasis added).
158 Id. at 881.
No. 20100436 	26
¶39 	Despite the federal district court’s application of a
de novo standard of review as to the issue of trial counsel’s
ineffectiveness, and contrary to the arguments made by both the
State and Mr. Gardner, the Tenth Circuit applied the more
deferential AEDPA standard to that claim as well. 154
¶40 	The Tenth Circuit concluded that our decision “that Mr.
Gardner was not prejudiced by his counsel’s failure to provide
Dr. Heinbecker with more time to prepare was not unreasonable.” 155
But even though the Tenth Circuit gave our decision deference, it
conducted a fact-intensive analysis that strongly indicated its
view that Mr. Gardner was not prejudiced by his expert’s lack of
preparation time. 156 	For instance, the court concluded that even
though Dr. Heinbecker only had a day to prepare, he was able to
testify that
Mr. Gardner had an unstable upbringing, the
product of a broken home. 	His mother had
difficulty disciplining her nine kids, his
step-father was incarcerated, his family had
lengthy criminal and substance abuse
histories, and his mother was charged with
parental neglect when Mr. Gardner was two and
five. 	Dr. Heinbecker further testified that
Mr. Gardner was in and out of state
institutions for most of his life, and tests
revealed some evidence of organic brain
damage. 157
¶41 	The Tenth Circuit then reasoned that any additional
evidence Dr. Heinbecker might have presented had he been given
more time to prepare would only have “added color” to what he did
testify to during the penalty phase. 158 	The court stated that
“[k]nowing of [Mr. Gardner’s] difficult upbringing and possible
brain damage did not convince a jury to forego the death

159 Id.
160 Id.
161 The Tenth Circuit may be referring here to sealed
testimony received by the magistrate judge during the federal
evidentiary hearings that is particularly damaging to Mr.
Gardner’s mitigation case.
162 Id.
163 Id. at 882.
164 Id. at 883.
27 	No. 20102436
penalty.” 159 	It opined that additional details about Mr.
Gardner’s “youthful drug use, criminal history, and scores on
various mental tests” would likely not have changed the jury’s
mind, especially because, given that the evidence also tended to
show Mr. Gardner’s future dangerousness, the evidence could have
had a double-edged effect. 160 	Further, if Dr. Heinbecker had
introduced evidence that Mr. Gardner was not fully in control of
his actions, the Tenth Circuit reasoned that the State would have
introduced rebuttal evidence to prove volition, including
previously unintroduced evidence of past violent acts that
appeared to be calculated and controlled; 161 expert testimony that
Mr. Gardner’s antisocial personality disorder did not impair his
volition; evidence from Mr. Gardner’s own experts that showed
that Mr. Gardner “performs well under stress and always manages
to stop when his life is threatened”; Mr. Gardner’s own statement
that his motivation for trying to escape was so that he could
return to drug use; and evidence that Mr. Gardner’s antisocial
personality disorder was brought on by his own extensive drug
use. 162
¶42 	Ultimately, the court concluded that any difference
between the testimony Dr. Heinbecker gave and the testimony he
might have given with more preparation time was merely a
difference of degree, and that Dr. Heinbecker would not have
found evidence that supported a different diagnosis. 163 	The
evidence the defense found after a full investigation, the court
reasoned, only supported “moderate brain damage,” largely brought
on by Mr. Gardner’s own drug use--“and Dr. Heinbecker testified
with regard to these impairments.” 164 	The Tenth Circuit concluded
that despite Dr. Heinbecker’s time constraints, he effectively
conveyed “mitigating evidence regarding Mr. Gardner’s family

165 Id.
166 Id. at 883, 894.
167 Gardner v. Galetka, 130 S. Ct. 1737 (2010).
No. 20100436 	28
history, possible organic brain damage, and social
circumstances.” 165
¶43 	Supported by this reasoning, the Tenth Circuit held
that our decision on this issue was not unreasonable and, after
reviewing each of the other issues before it, affirmed the
federal district court’s dismissal of Mr. Gardner’s Petition for
Writ of Habeas Corpus. 166 	On March 8, 2010, the United States
Supreme Court denied Mr. Gardner’s petition for writ of
certiorari from the Tenth Circuit’s decision. 167
X. 	THE UTAH DISTRICT COURT ISSUES A WARRANT OF EXECUTION AND WE
UPHOLD IT
¶44 	On March 10, 2010, the State filed an Application for
Execution Warrant pursuant to section 77-19-9(1) of the Utah
Code. 	Mr. Gardner filed a Memorandum of Facts and Legal Reasons
Against Issuance of the Judgment, arguing that subsection (2) of
that same statute required the district court to hold a hearing
to determine if there were any facts or legal reasons why a
warrant of execution should not issue. 	Mr. Gardner presented
three claims that he argued constituted “legal reasons” against
execution of the judgment: 	first, that his rights to equal
protection, uniform operation of the laws, and due process were
violated because he did not have paid counsel and state funding
for investigators and expert witnesses while pursuing his post-
conviction review; second, that executing his death sentence
twenty-five years after his conviction constituted cruel and
unusual punishment; and third, that the district court should
consider the desires of Mr. Burdell’s friends and family in
determining whether to issue the warrant. 	The district court
concluded that none of Mr. Gardner’s issues constituted a “legal
reason” against executing the judgment of death as contemplated
by section 77-19-9. 	The district court concluded that it was
limited to reviewing the case history to determine if all direct
and collateral attacks on the judgment had been resolved, so it
did not reach the merits of Mr. Gardner’s claims. 	On April 23,
2010, the district court signed and issued an order for Mr.
Gardner’s execution, setting Mr. Gardner’s execution date for
June 18, 2010.

168 See State v. Gardner, 2010 UT 44, ¶ 2, 234 P.3d 1104 (per
curiam).
169 Id.
170 Id. ¶ 3.
171 Id.
172 Id. ¶ 4.
29 	No. 20102436
¶45 	Mr. Gardner appealed the issuance of the death warrant
to this court. 	The State argued, and we agreed, that issuance of
the death warrant is “neither a judgment of conviction nor an
order that affects the rights of the defendant,” so the issuance
of Mr. Gardner’s death warrant was not an appealable order. 168
Instead, and as the State conceded was proper, we considered Mr.
Gardner’s appeal as a petition for extraordinary writ and
reviewed whether it was an abuse of the district court’s
discretion to deny Mr. Gardner’s application for relief under
section 77-19-9. 169 	We held that the district court did not abuse
its discretion because the statute only required the district
court to review “the procedural status of the case and to
determine that no direct or collateral attacks on the judgment
are pending, that no stays are in effect, and that there are no
procedural defects in the warrant application process.” 170 	We
also held that section 77-19-9 does “not permit review of
substantive claims that the underlying sentence is invalid.” 171
Concluding that the district court’s interpretation of the
statute was correct and that it did not abuse its discretion, we
denied Mr. Gardner’s request for extraordinary relief. 172
XI. 	MR. GARDNER FILES A THIRD PETITION FOR POST-CONVICTION
RELIEF, WHICH THE DISTRICT COURT DISMISSES
¶46 	The petition we consider here was filed on May 4, 2010.
This is Mr. Gardner’s third state petition for post-conviction
relief. 	The day after he filed this petition, he filed a Motion
to Stay Execution. 	In his petition, Mr. Gardner raised two
central claims: 	first, he argued that executing the judgment of
death against him would violate his rights to equal protection
and due process under the Utah and United States Constitutions
because no court had fully and fairly considered all of the
mitigating evidence developed in his case in order to determine
whether he received ineffective assistance of counsel at the
penalty phase of his trial; second, he argued that executing the
judgment of death against him would constitute cruel and unusual
punishment because, given that the crime for which he is being

173 Mr. Gardner argued that the date upon which the Tenth
Circuit’s decision became final was March 8, 2010, the day on
(continued...)
No. 20100436 	30
punished occurred twenty-five years ago, no deterrent or
retributive purpose would be served by his execution.
¶47 	Regarding his first claim, Mr. Gardner argued that
every other currently living death row inmate was entitled to
receive state funding for counsel and investigative resources in
state post-conviction proceedings, and that since he was not, he
was being treated differently than other similarly situated
persons, which he argued violated his rights to equal protection
under the state and federal constitutions. 	He argued that this
deprivation of funding meant that he was not able to develop the
prejudice prong of his penalty-phase ineffective assistance of
counsel claim with expert testimony until his federal habeas
corpus proceedings, and that as a result, no Utah court had ever
been presented with the full range of mitigating evidence he was
able to develop. 	And since the Tenth Circuit did not review this
evidence de novo, but rather applied a deferential standard of
review, Mr. Gardner argued that his due process rights were
violated “because no court has given his mitigation evidence a
full and fair consideration.”
¶48 	Regarding his second claim, Mr. Gardner argued that
because he committed the crime in 1985, executing him twenty-five
years later no longer has deterrent value. 	Mr. Gardner also
argued that because Mr. Burdell’s family and friends do not want
him to be executed, and because no jury had ever heard the full
range of his mitigating evidence, the death penalty would also
serve no retributive purpose. 	Mr. Gardner concluded that since
the two primary purposes of punishment are deterrence and
retribution, his execution would serve neither valid purpose, and
would therefore be cruel and unusual punishment.
¶49 	On May 14, 2010, the State moved for summary judgment
on Mr. Gardner’s claims for post-conviction relief. 	The State
argued that Mr. Gardner’s claims were untimely and procedurally
barred under the PCRA, and that they were also meritless. 	Mr.
Gardner responded that his claims were not procedurally barred
under the PCRA because he had not and could not have brought them
in an earlier petition for post-conviction relief. 	He argued his
due process and equal protection claims were not untimely because
the last fact giving rise to his claim that no court would give
his ineffective assistance of counsel claim a full and fair
consideration was the Tenth Circuit’s refusal to apply a de novo
standard of review in his federal habeas corpus case, 173 and he

173 (...continued)
which the United States Supreme Court denied his petition for
certiorari.
174 Utah Code Ann. § 78B-9-106(1)(d) (2008).
31 	No. 20102436
filed this petition within one year of learning of that fact, the
time mandated by the PCRA. 	Mr. Gardner argued that his cruel and
unusual punishment claim was not time barred because the passage
of time is the basis of his claim and constitutes newly
discovered evidence under the PCRA; that the relevant date for
the purposes of this claim was the signing of his warrant of
execution; and that he did not know his execution would serve no
retributive purpose until the Tenth Circuit refused to review his
mitigation evidence de novo.
¶50 	But Mr. Gardner also argued that even if his claims
were untimely or procedurally barred, the district court should
still reach their merits. 	The Utah Constitution, Mr. Gardner
argued, provides two exceptions to any time or procedural bar of
the PCRA. 	First, Mr. Gardner argued an “interests of justice”
exception exists for untimely claims. 	Second, he argued that
Utah common law and the Utah Constitution allow for otherwise
precluded claims to be examined for “good cause shown.” 	He
argued that he had shown good cause for not bringing his claims
in a prior petition and that both constitutional exceptions apply
to any statute that might bar his current petition.
¶51 	The district court agreed with the State, granted its
motion for summary judgment, and dismissed Mr. Gardner’s third
petition for post-conviction relief. 	The district court found
that Mr. Gardner’s due process and equal protection claims were
untimely because the conclusion of federal court review was not
the relevant date for the PCRA statute of limitations, but rather
the relevant date was the day on which Mr. Gardner became aware
he had newly developed mitigation evidence, which was presented
to the federal magistrate judge in September 1999. 	The district
court concluded that the PCRA required Mr. Gardner to have
brought this claim by September 2000, one year after having
discovered the evidence. 	The district court also held that this
claim was procedurally barred because the PCRA bars any claim
that “could have been, but was not, raised in a previous request
for post-conviction relief.” 174 	Since Mr. Gardner filed a second
petition for post-conviction relief on May 12, 2000, and that
petition did not include his due process and equal protection
claims, the district court held those claims were now barred.

175 Taylor v. State, 2007 UT 12, ¶ 13, 156 P.3d 739 (quoting
Gardner v. Galetka, 2004 UT 42, ¶ 7, 94 P.3d 263).
No. 20100436 	32
¶52 	The district court held Mr. Gardner’s cruel and unusual
punishment claim was also both untimely and procedurally barred.
The district court held the claim was untimely because Mr.
Gardner learned of the mitigation facts that arguably made his
sentence serve no retributive value in 1999 and that, by that
point, he had been on death row for fourteen years, which meant
he was aware of the evidentiary facts--i.e., the passage of time-
-relevant to his deterrence claim. 	The district court held the
cruel and unusual punishment claim was procedurally barred
because, like Mr. Gardner’s other claim, it could have been
brought in his second state petition for post-conviction relief
in 2000.
¶53 	Finally, the district court held that the “good cause”
and “interests of justice” exceptions to the PCRA’s time or
procedural bars were no longer available as a result of recent
amendments to the PCRA. 	The district court held that the intent
of these amendments was to “restrict any exceptions to the
procedural bar rule to those found in the PCRA” so that the PCRA
was now the “sole remedy” for any person who wanted to
collaterally challenge a conviction or sentence. 	For this
reason, the district court declined to consider the merits of Mr.
Gardner’s claims under a “good cause” or “interest of justice”
exception.
¶54 	Following the district court’s grant of summary
judgment in favor of the State, Mr. Gardner filed a timely notice
of appeal. 	We now consider the correctness of the district
court’s grant of summary judgment.
STANDARD OF REVIEW
¶55 	“‘We review an appeal from an order dismissing or
denying a petition for post-conviction relief for correctness
without deference to the lower court’s conclusions of law.’” 175
ANALYSIS
¶56 	In this appeal, we must determine whether the district
court erred in granting summary judgment in favor of the State
with regard to Mr. Gardner’s most recent petition for post-
conviction relief. 	Mr. Gardner argues that the district court
incorrectly granted the State’s motion for two principal reasons.
First, Mr. Gardner argues that the district court erred in
determining when his substantive claims arose and that the court

176 See Utah Code Ann. §§ 78B-9-101 to -110 (2008).
177 Mr. Gardner also argued that the district court erred in
denying his Motion to Stay Execution, which was filed pursuant to
Utah Code section 77-19-8. 	We need not address this issue.
Although Mr. Gardner argued below that such a stay was mandatory,
before us he seeks only “a temporary stay . . . pending
resolution of this post-conviction matter.” 	In his brief on
appeal and at oral argument, counsel for Mr. Gardner asserted
that such a stay could be granted in the discretion of this court
if staying the execution would be necessary “to consider fully
this matter.” 	We have given this case the care and consideration
necessitated by the profound importance of the decision with
which we are faced and the significance of the issues involved
and we are satisfied that we need not stay Mr. Gardner’s
execution in order to resolve the issues presented. 	We therefore
do not examine the correctness of the district court’s basis for
denying the stay.
33 	No. 20102436
consequently erred in granting the State’s motion for summary
judgment on the basis that Mr. Gardner’s claims are precluded by
the PCRA. 176 	Second, Mr. Gardner argues that the district court
erred in concluding that it lacked authority to set aside the
PCRA’s procedural bars in the interests of justice. 	As a result,
he claims, the court erred in granting the State’s motion without
invoking an “interests of justice” exception to reach the merits
of his claims. 177
¶57 	We affirm the district court’s grant of summary
judgment in favor of the State, and find that we need not reach
Mr. Gardner’s arguments regarding the scope of judicial authority
to set aside the procedural bar of the PCRA. 	Specifically, we
hold that: 	(I) the district court did not err in concluding that
review of Mr. Gardner’s claims is precluded by the procedural and
limitations bars of the PCRA; and (II) the district court did not
err in declining to apply an exception to the procedural and
limitations bars of the PCRA because any exception that might
support setting aside those provisions is not available to Mr.
Gardner in this case. 	Accordingly, we affirm the district
court’s grant of summary judgment in favor of the State.
I. 	THE DISTRICT COURT CORRECTLY CONCLUDED THAT MR. GARDNER’S
SUBSTANTIVE CLAIMS ARE BARRED BECAUSE THEY COULD HAVE BEEN RAISED
IN A PRIOR POST-CONVICTION PROCEEDING AND BECAUSE THEY ARE
UNTIMELY
¶58 	The district court correctly concluded that Mr.
Gardner’s due process, equal protection, and cruel and unusual

178 See Utah Code Ann. § 78B-9-102(1) (2008).
179 Id.
180 See id. §§ 78B-9-106 to -107.
181 See id.
182 Id. § 78B-9-106(1).
183 Id. § 78B-9-106(1)(a).
184 Id. § 78B-9-106(1)(b) to -106(1)(c).
185 Id. § 78B-9-106(1)(d).
No. 20100436 	34
punishment claims are all barred by the PCRA. 	Broadly speaking,
if a defendant’s sentence or conviction is affirmed after direct
appeal, or if no direct appeal is taken, the convicted person may
pursue a post-conviction remedy by filing a petition under the
PCRA. 178 	The PCRA “establishes the sole remedy for any person who
challenges a conviction or sentence for a criminal offense and
who has exhausted all other legal remedies.” 179 	In addition to
establishing the legal avenue for a convicted person to pursue
post-conviction relief, the PCRA establishes a number of
procedural requirements. 180 	A petition for relief that does not
meet these procedural requirements is barred. 181
¶59 	Two of these procedural requirements form the basis for
our decision. 	The first, which we will refer to as the
“procedural bar,” precludes relief in those cases where the
petitioner asserts grounds for relief that could have been
asserted in a prior or contemporaneous proceeding. 182
Specifically, the petitioner may not seek relief based on grounds
that “may still be raised on direct appeal or by a post-trial
motion,” 183 or on grounds that were already raised at trial or on
direct appeal or “could have been but [were] not raised at trial
or on appeal.” 184 	Relief is also precluded if the grounds for
relief asserted by the petitioner were raised and addressed in a
prior post-conviction proceeding or if the grounds “could have
been, but [were] not, raised” in a prior post-conviction
proceeding. 185
¶60 	The second procedural requirement, which we will refer
to as the “limitations bar,” establishes the time period within
which new claims for relief must be raised. 	That is, even if a
claim is not precluded by the procedural bar, a petitioner’s

186 Id. § 78B-9-106(1)(e), -107(1).
187 Id. § 78B-9-107(1).
188 Id. § 78B-9-107(2).
189 Id. § 78B-9-107(2)(a).
190 Id. § 78B-9-107(2)(b).
191 Id. § 78B-9-107(2)(c) to -107(2)(d).
192 Id. § 78B-9-107(2)(e).
193 See Kell v. State, 2008 UT 62, ¶¶ 17, 19-20, 194 P.3d
913.
35 	No. 20102436
claim for relief is barred if the petition is not timely filed. 186
Under the PCRA, a petition for post-conviction relief must be
“filed within one year after the cause of action has accrued.” 187
¶61 	By statute, the accrual date for the limitations bar is
the latest date on which one of a number of specific milestones
occur. 188 	Where the conviction is not challenged on appeal, the
accrual date is the last day on which the direct appeal could
have been filed. 189 	Where the conviction is challenged on direct
appeal, the accrual date is the date that the appellate court
decision is entered. 190 	Where certiorari review may be sought
from either this court or the United States Supreme Court, the
accrual date occurs either on the last date for filing a petition
for certiorari, if such a petition is not filed, or, if one is
filed, on the date that petition is denied or otherwise
decided. 191 	Finally, if evidentiary facts arise at a date later
than all of the dates already described, the petitioner may file
a petition within one year of the date that the petitioner “knew
or should have known, in the exercise of reasonable diligence, of
evidentiary facts on which the petition is based.” 192 	We will
affirm a district court’s grant of summary judgment in favor of
the State on a petition for post-conviction relief when the
petitioner’s claim fails to meet the requirements of this
provision. 193
¶62 	If the petitioner’s claim is found to be procedurally
proper, relief may be granted on one of the specific grounds set
forth in the PCRA. 	The grounds relevant to this appeal are set
forth at subsection 78B-9-104(1)(a) of the Utah Code. 	This
provision permits a criminal sentence to be modified or vacated
if “the conviction was obtained or the sentence was imposed in

194 Utah Code Ann. § 78B-9-104(1)(a).
195 Id. § 78B-9-105(1).
196 Id. § 78B-9-104(2).
No. 20100436 	36
violation of the United States Constitution or Utah
Constitution.” 194 	Under the PCRA, the burden of proof in this
proceeding rests on the petitioner. 195 	And “[t]he court may not
grant relief from a conviction or sentence unless the petitioner
establishes that there would be a reasonable likelihood of a more
favorable outcome in light of the facts proved in the post-
conviction proceeding, viewed with the evidence and facts
introduced at trial or during sentencing.” 196
¶63 	In this post-conviction proceeding, Mr. Gardner argues
that a large amount of mitigating evidence was developed during
the course of his federal habeas corpus action and that, because
that evidence has received only limited review, permitting his
sentence to be carried out would violate the due process and
equal protection guarantees found in both the United States and
Utah Constitutions. 	He also argues that the state and federal
constitutional prohibitions against cruel and unusual punishment
have been violated by virtue of the fact that more than twenty-
five years have elapsed since his sentence of death was imposed.
¶64 	We conclude that Mr. Gardner’s claims are precluded by
both the procedural bar and the limitations bar contained in the
PCRA. 	Specifically, we conclude that all of Mr. Gardner’s claims
are barred either because they could have been raised when he
sought post-conviction relief in state court in 2000 or because
he has been aware of the facts underlying his claims for more
than one year. 	Because the relevant dates for both the
procedural bar and the limitations bar vary among the claims, we
will address them separately in our analysis. 	We address, in
turn, Mr. Gardner’s due process, equal protection, and cruel and
unusual punishment claims.
A. 	Mr. Gardner’s Due Process Claims Are Barred Because They
Could Have Been, but Were Not, Asserted in His Second State
Petition for Post-conviction Relief or Within One Year of the
Conclusion of His Federal Evidentiary Hearing in 1999
¶65 	The claims Mr. Gardner asserts under the Due Process
Clauses of the United States and Utah Constitutions are barred
because they could have been raised at any time after 1999,
including in Mr. Gardner’s second state petition for post-
conviction relief. 	As stated, the procedural bar contained in

197 Id. § 78B-9-106(1).
198 Id. § 78B-9-107(1) to -107(2)(e). 	We find the other
accrual dates of the limitations bar to be inapplicable in this
case. 	As Mr. Gardner points out, the PCRA permits petitions to
be filed within one year of “the entry of the denial of the
petition for writ of certiorari.” 	See id. § 78B-9-107(2)(d).
And since the limitations period is measured by reference to “the
latest” accrual date, id. § 78B-9-107(2), Mr. Gardner argues that
his accrual date should be identified relative to the denial of
his most recent Petition for Writ of Certiorari to the United
States Supreme Court. 	Here, that date would be March 8, 2010,
because that is when the United States Supreme Court declined to
review the Tenth Circuit decision in Mr. Gardner’s federal
action. 	See Gardner v. Galetka, 130 S. Ct. 1737 (2010).
This is not the measuring date for determining timeliness.
The accrual dates enumerated by the limitations bar are set forth
in step-wise fashion. 	If no appeal is taken, the limitations
period begins on the date the final judgment is entered. 	Utah
Code Ann. § 78B-9-107(2)(a). 	If an appeal is taken, the
limitations period begins on the date the appellate court enters
its decisions. 	Id. § 78B-9-107(2)(b). 	If a petition for writ of
certiorari is not filed, the limitations period begins on the
last date that such a petition could be filed. 	Id. § 78B-9-
107(2)(c). 	And if a petition for writ of certiorari is filed,
the limitations period begins on the date that that petition is
denied, or on the day that the decision with regard to that
petition is entered. 	Id. § 78B-9-107(2)(d).
The sequential articulation of these statutory accrual dates
makes it clear that they each refer to a point in the process of
the petitioner’s direct appeal. 	Only the petition for writ of
certiorari review of the appellate court decision referenced in
the previous subsection of the statute is relevant for purposes
of this subsection.
Otherwise, the provisions regarding petitions for writ of
certiorari become entirely divorced from their statutory context.
(continued...)
37 	No. 20102436
the Preclusion of Relief provision of the PCRA deems a petitioner
to be “not eligible for relief” based on a ground that “was
raised or addressed at trial or on appeal” or “was raised or
addressed in any previous request for post-conviction relief or
could have been, but was not, raised in a previous request for
post-conviction relief.” 197 	The limitations bar of the PCRA
requires all claims for post-conviction relief to be raised
within one year of 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.” 198 	We conclude

198 (...continued)
See Berneau v. Martino, 2009 UT 87, ¶ 12, 223 P.3d 1128 (“[E]ach
part [of a statute] should be construed in connection with every
other part . . . so as to produce a harmonious whole.”) (internal
quotation marks omitted). 	Moreover, if the subsections related
to petitions for writ of certiorari were interpreted to mean any
such petition, the entire limitations bar would become
meaningless, because petitioners could repeatedly invoke state
court proceedings to pursue meritless claims and then, once the
claims are rejected, file petitions for writ of certiorari
review. 	Accordingly, we conclude that the accrual date for
purposes of this appeal is the date on which Mr. Gardner knew or
should have known of the facts giving rise to his claim.
199 See Gardner v. Holden, 888 P.2d 608, 622 (Utah 1994).
200 Mr. Gardner fully litigated this component of his claim
during his first post-conviction proceeding before this court.
See id. at 622-23. 	We held, as discussed above, that he had no
right, either statutory or constitutional, to funding for these
experts because he had failed to show that “he could not
adequately pursue his habeas claims without appointed
investigators and expert witnesses.” 	Id.
Notably, Mr. Gardner did not raise this argument in his
federal habeas corpus proceedings. 	See Gardner v. Galetka, No.
2:95-CV-846-TC, 2007 U.S. Dist. LEXIS 25643 (D. Utah Apr. 5,
2007); Gardner v. Galetka, No. 2:95-CV-846-TC, 2007 U.S. Dist.
LEXIS 25651 (D. Utah Apr. 5, 2007). 	He did argue that he was
denied effective assistance of counsel both at trial and on
direct appeal. 	See Gardner v. Galetka, 2007 U.S. Dist. LEXIS
25643, at *2-13. 	This argument was rejected by every federal
court that reviewed it. 	Even after Mr. Gardner received federal
funds and was permitted to adduce the evidence he desired, the
magistrate judge and the federal district court both concluded
(continued...)
No. 20100436 	38
that Mr. Gardner could have raised these claims in his second
state petition for post-conviction relief, filed in state court
in May 2000, or at any other time in the year after this evidence
was adduced in 1999, and that he is therefore barred from raising
it in this successive petition.
¶66 	Mr. Gardner’s claims have their origin in the fact
that, in pursuing his first state petition for post-conviction
relief, he was not provided with funds for an investigation into
the deficiencies of his trial counsel during the mitigation phase
of his sentencing. 199 	But this, standing alone, does not form the
basis of his claim. 200 	Rather, he argues that, now that he has

200 (...continued)
that no prejudice resulted from Mr. Gardner’s inability to
present this evidence during his sentencing phase. See id. at
*10-11. 	And because the failure at trial was not prejudicial,
they concluded, his counsel’s failure to pursue this claim on
direct appeal also could not have been prejudicial. 	See id. at
*12-13.
The Tenth Circuit declined to engage in the kind of de novo
review undertaken by the Federal District Court. 	Gardner v.
Galetka, 568 F.3d 862, 877-89 (10th Cir. 2009). 	Viewing the
claims instead under the standard of review required by the
federal Antiterrorism and Effective Death Penalty Act, see 28
U.S.C. § 2254(d), the Tenth Circuit concluded that our initial
review of Mr. Gardner’s claims was not unreasonable. 	See Gardner
v. Galetka, 568 F.3d at 883.
201 Magistrate Report, supra note 4, at 6-7, 73-84.
202 Id. at 6-7.
203 Id. at 74-84.
204 See Gardner v. Galetka, 2007 U.S. Dist. LEXIS 25643.
205 See Gardner v. Galetka, 568 F.3d 862 (10th Cir. 2009).
39 	No. 20102436
collected evidence as a result of a federally funded
investigation into trial counsel’s deficiencies, it is a
violation of due process for this court not to consider that
evidence.
¶67 	Indeed, that evidence came into existence, in its
current form, during an evidentiary hearing conducted by the
federal magistrate judge. 201 	That hearing took place over the
course of approximately ten days in September and October 1999. 202
The evidence adduced at that hearing formed part of the basis of
the magistrate judge’s report and recommendation to the federal
district court, which was issued in 2003. 203 	The federal district
court reviewed that evidence and adopted the magistrate judge’s
report and recommendation in an opinion issued in 2007. 204 	The
Tenth Circuit reviewed that decision and issued its opinion in
June 2009. 205
¶68 	In April 2000, several months after the evidentiary
hearing had brought forth the evidence on which he now relies,
Mr. Gardner also amended his federal habeas corpus petition to
add a claim regarding trial counsel’s failure to object to a jury

206 See Gardner v. Galetka, 2007 U.S. Dist. LEXIS 25651, at
*1-2.
207 Id. at *10. 	Mr. Gardner also clearly could have raised
his due process, equal protection, and cruel and unusual
punishment claims in his federal habeas corpus action. 	In April
2000, several months after this evidence came to light during the
evidentiary hearing, Mr. Gardner sought, and was granted, leave
to amend his habeas corpus petition to include a challenge to
trial counsel’s failure to object to a jury instruction. 	Compare
Magistrate Report, supra note 4, at 6-7 (showing that the
evidentiary hearings occurred in September and October 1999) with
Gardner v. Galetka, 2007 U.S. Dist. LEXIS 25651, at *1 n.1
(showing Mr. Gardner filed his First Amended Petition for Writ of
Habeas Corpus in April 2000). 	When the district court found that
Mr. Gardner had not exhausted his state remedies with regard to
the jury instruction claim, the court held Mr. Gardner’s claim in
abeyance while he pursued his post-conviction petition for relief
in state court. 	See Gardner v. Galetka, 2007 U.S. Dist. LEXIS
25651, at *10. Invoking these same procedures would likely have
led to timely and appropriate consideration of his due process,
equal protection, and cruel and unusual punishment claims during
the course of Mr. Gardner’s federal habeas corpus action.
But we need not consider whether the federal habeas corpus
action also qualifies as any prior proceeding in which Mr.
Gardner could have raised his grounds for relief. 	See Utah Code
Ann. § 78B-9-106(1)(d) (2008). 	Under the PCRA, it is the State’s
burden to raise “any ground of preclusion.” 	Id. § 78B-9-105(2).
The State has not argued that the federal habeas corpus
proceedings are a proceeding in which Mr. Gardner could have
raised his claims. 	Because the grounds of preclusion argued by
the State are sufficient, we do not address this potential
alternative basis for concluding that Mr. Gardner’s claims are
barred.
208 See Gardner v. Galetka, 2004 UT 42, ¶¶ 5, 13, 94 P.3d
263.
No. 20100436 	40
instruction. 206 	The federal district court permitted this
amendment, but held the claim in abeyance while Mr. Gardner,
pursuant to standards of federal habeas corpus review, pursued
his claim in state court in order to exhaust his state
remedies. 207 	That claim formed the basis of Mr. Gardner’s second
state petition for post-conviction relief, which he filed on May
12, 2000. 208 	We reviewed that claim in 2004 and found that it was

209 Id. ¶ 13.
210 See Gardner v. Holden, 888 P.2d 608, 622-23 (Utah 1994).
211 See Gardner v. Galetka, 2004 UT 42, ¶ 13.
41 	No. 20102436
procedurally barred. 209 	In spite of the fact that the evidence
developed in his federal proceedings was known to him in 1999,
Mr. Gardner did not present this due process claim in that
proceeding. 	Indeed, he has not argued until now that due process
guarantees require consideration of that evidence.
¶69 	We note that this claim is virtually indistinguishable
from the claim that Mr. Gardner presented in his first state
petition for post-conviction relief. 	In that action, he argued
before this court that the failure to fund his post-conviction
investigation was a denial of due process. 210 	Implicit in this
argument is the notion that the Due Process Clause also requires
a court to consider the results of that investigation. 	For Mr.
Gardner’s argument in that proceeding to have meant anything, it
must have meant that, after the funded investigation was
complete, he was entitled to judicial review of the results of
the investigation. 	Nevertheless, we need not determine whether
Mr. Gardner’s current argument merely recasts an argument that
this court has already considered and rejected. 	Even accepting
Mr. Gardner’s current characterization of this claim, he could
have raised it in his second state petition for post-conviction
relief.
¶70 	The distinction that Mr. Gardner suggests makes his
current claim different from claims previously addressed by this
court is that, the last time we examined this issue, the evidence
that he urges us to review did not exist. 	He argues that, now
that the evidence has come into existence, it is a violation of
due process for the evidence to go unconsidered.
¶71 	We are not persuaded by this argument. 	The evidence
Mr. Gardner relies on was adduced during the 1999 evidentiary
hearings before the magistrate judge. 	By the time he filed his
second state petition for post-conviction relief, this evidence
had been at his disposal for more than six months. 	Thus, Mr.
Gardner could have included this claim in the post-conviction
petition for relief that he filed in state court while his
corresponding federal claim was held in abeyance. 	That petition
was filed on May 12, 2000, and did not raise the issues presented
here. 211 	For purposes of the PCRA, Mr. Gardner could have, but
did not, seek relief in that proceeding on the grounds that he

212 See Gardner v. Galetka, 2007 US Dist. LEXIS 25643, at *9-
13; Magistrate Report, supra note 4, at 74-116.
213 Gardner v. Holden, 888 P.2d at 622-23.
214 See 28 U.S.C. § 2254(d).
215 See Gardner v. Galetka, 568 F.3d at 877-83.
No. 20100436 	42
raises in the petition being considered here. 	Because he did
not, his claims are now barred.
¶72 	Mr. Gardner argues that his claims arose only very
recently and that they therefore could not have been raised in
any prior proceeding. 	According to Mr. Gardner, his claims are
based on the fact that no court has given full and fair
consideration to the evidence raised in the 1999 hearing. 	This
argument is unpersuasive for two reasons. 	First, the federal
district court and the magistrate judge both thoroughly reviewed
this evidence in the context of Mr. Gardner’s ineffective
assistance of counsel claims. 212 	Each of those judges considered
the evidence to the full extent urged by Mr. Gardner, and each of
those judges concluded that the evidence did not establish that
Mr. Gardner’s trial or appellate counsel’s performance had
prejudiced him. 	These conclusions echoed the conclusion we
reached in Mr. Gardner’s first state petition for post-conviction
relief. 	There we concluded that Mr. Gardner was not entitled to
funding to develop that evidence because he had failed to show
that “he could not adequately pursue his habeas claims” without
the funding he desired to compile this evidence. 213 	The federal
district court and the magistrate judge reached essentially the
same conclusion when they each concluded that no prejudice
resulted from the fact that the new evidence was not presented to
the jury. 	The key difference between our holding and the
conclusions of the federal district court and magistrate judge is
that their conclusions were based on independent review of all of
the evidence adduced at Mr. Gardner’s federally funded
evidentiary hearing.
¶73 	Mr. Gardner argues that the effect of this review was
undermined because of the standard of review mandated by the
federal Anti-terrorism and Effective Death Penalty Act. 214 	The
AEDPA requires federal courts reviewing state court post-
conviction proceedings to determine only whether the state
court’s application of federal constitutional law is
unreasonable. 215 	Because the Tenth Circuit employed that standard
of review, Mr. Gardner asserts that its decision effectively
nullified the consideration given to the evidence by the lower

216 Id. at 877-80.
217 Id.
43 	No. 20102436
federal courts. 	And since the Tenth Circuit decision was not
issued until June 	2009, Mr. Gardner argues he had no way of
knowing until that date that the evidence would not be
satisfactorily reviewed. 	Mr. Gardner argues that the issue is
further complicated by the fact that, on appeal to the Tenth
Circuit, the State stipulated to permitting the Tenth Circuit to
review the evidence de novo. 216 	And since the federal district
court had given this evidence full consideration in the context
of Mr. Gardner’s claims of ineffective assistance of counsel, Mr.
Gardner argues that it was unexpected that the Tenth Circuit
would not undertake the same kind of review.
¶74 	All of these points relate to the second reason we are
unpersuaded by the argument that Mr. Gardner could not have
raised his claim until after federal appellate review was
completed. 	The Tenth Circuit employed the AEDPA standard of
review, mandated by federal law, because it was reviewing our
decision regarding ineffective assistance of counsel. 217 	The
reason it examined the effectiveness of counsel is that Mr.
Gardner raised a claim of ineffective assistance of counsel in
his federal habeas corpus petition. 	That claim was presented to
the federal district court in the first instance, and was
reviewed by the Tenth Circuit. 	Had Mr. Gardner raised his due
process claim before the federal district court, then both the
federal district court and the Tenth Circuit would have had an
opportunity to determine precisely the issue presented here--
whether the Due Process Clause requires nondeferential review of
the evidence developed at the federal hearing even though other
constitutional guarantees do not.
¶75 	But those courts were not presented with a claim that a
different constitutional right, separate and apart from the right
to effective assistance of counsel, mandated de novo review of
the evidence. 	Mr. Gardner presented his claims to the federal
courts only in the context of his ineffective assistance of
counsel claims. 	Because Mr. Gardner did not raise this due
process issue, the Tenth Circuit had no chance to consider it
except as part of its analysis of the appropriate standard of
review. 	And even when the standard of review issue was being
argued before the Tenth Circuit, counsel for Mr. Gardner did not
argue that the Due Process Clause would be offended by
application of the deferential AEDPA standard. 	The fact that the
Tenth Circuit did not review Mr. Gardner’s claims with an eye
toward due process requirements is a result of his failure to

218 Utah Code Ann. § 78B-9-106(1)(d).
219 Id. § 78B-9-107(1) to -107(2)(e).
No. 20100436 	44
bring a due process claim, not an event that triggers the
existence of the claim. 	We do not accept the notion that the
Tenth Circuit’s failure to consider this evidence is a predicate
fact without which Mr. Gardner could not have raised this claim.
¶76 	Because Mr. Gardner became aware of this evidence in
1999, he had an opportunity to raise issues related to the
evidence in his second state petition for post-conviction relief.
Because he did not do so, his claims are now precluded by the
procedural bar of the PCRA. 	From this conclusion, it necessarily
follows that Mr. Gardner’s due process claims are also precluded
by the limitations bar of the PCRA. 	That is, because the claims
could have been raised in 2000, they also could have been raised
more than one year before Mr. Gardner filed this petition. 	Thus,
even if Mr. Gardner’s claims were not precluded by the procedural
bar of the PCRA, his claims are nonetheless barred on the
independent ground that they are untimely. 	We conclude that the
district court did not err in determining that review of Mr.
Gardner’s due process claims is precluded by the PCRA.
B. 	Mr. Gardner’s Equal Protection Claims Are Barred Because They
Could Have Been, but Were Not, Asserted During His Second State
Petition for Post-conviction Relief or at Any Time After the 1997
Enactment of the Statute That Forms the Basis of His Claim
¶77 	The claims that Mr. Gardner asserts under the Equal
Protection Clause of the United States Constitution and the
uniform operation of laws clause of the Utah Constitution are
barred because they could have been raised at any time after
1997, including in the context of his second state post-
conviction proceedings. 	As discussed, the PCRA bars review of
claims that could have been raised in a prior post-conviction
proceeding. 218 	And the PCRA bars as untimely any claim that is
not raised within one year of the date on which the petitioner
knew, or should have known, of the facts underlying the claim for
relief. 219 	Both of these bars operate to preclude review of Mr.
Gardner’s equal protection claims.

220 For purposes of this opinion, we refer to Mr. Gardner’s
claims under both the Equal Protection Clause of the United
States Constitution and the uniform operation of laws clause of
the Utah Constitution as “equal protection claims.”
221 Act of March 7, 1997, ch. 76, § 2, 1997 Utah Laws 280.
222 Utah Code Ann. § 78B-9-202(2) (2008). 	This section of
the code was modified and renumbered in 2008. 	It is now codified
at Utah Code sections 78B-9-201 to -202. 	The substantive
modifications to the amendment are not at issue in this case.
Accordingly, we cite to the most recent version of the statute.
223 Id. § 78B-9-202(3).
224 See Gardner v. Holden, 888 P.2d 608, 622-23 (Utah 1994).
225 See Act of March 7, 1997, ch. 76, § 2, 1997 Utah Laws
280.
45 	No. 20102436
¶78 	Mr. Gardner’s equal protection claims 220 are based on
statutory enactments that occurred after the resolution of his
first state post-conviction petition. 	In 1997, the Utah
Legislature enacted Utah Code section 78-35a-202. 221 	This
provision provides a mechanism for counsel to be appointed to
assist petitioners in post-conviction death penalty
proceedings. 222 	The statute also provides funding for appointed
counsel. 223 	Because Mr. Gardner’s first post-conviction
proceedings were concluded prior to the enactment of this law, he
did not receive funding under this statute. 224 	As a result of the
timing of these events, Mr. Gardner argues that the state has
arbitrarily denied him funding while providing it for individuals
whose post-conviction petitions were filed after 1997 and that
this discriminatory treatment has had the effect of denying him
the right to full judicial review of his mitigation evidence.
Mr. Gardner suggests that this alleged discrimination can be
remedied if this court undertakes independent review of the
evidence to determine if its unavailability at the penalty phase
of Mr. Gardner’s trial was prejudicial.
¶79 	We conclude that, because the statutory provisions
underlying Mr. Gardner’s claims came into effect in 1997, these
claims could have been raised at that time. 	Specifically, the
statute that Mr. Gardner alleges has created the discriminatory
classification was passed in 1997 and became effective in May of
that year. 225 	Therefore, the legal and factual basis for Mr.
Gardner’s equal protection claims existed at that time. 	Further,
Mr. Gardner has not argued that he was not aware of, or should

226 See Gardner v. Galetka, 2004 UT 42, ¶ 5, 94 P.3d 263.
No. 20100436 	46
not have been aware of, the statutory scheme on which his equal
protection claims are based. 	Thus, these claims are untimely by
virtue of the fact that they were not raised until the current
petition for post-conviction relief was filed in April 2010.
Under the PCRA, Mr. Gardner had until May 1998--one year after
the allegedly discriminatory statute went into effect--to raise
these claims. 	Because he did not raise the claims prior to the
termination of this limitation period, his claims are precluded
by the limitations bar set forth in the PCRA.
¶80 	Mr. Gardner argues that these claims are not barred for
the same reason that his due process claims should not be
procedurally barred--he could not have known that he would suffer
an injury as a result of this discriminatory classification until
after the Tenth Circuit unsatisfactorily reviewed the relevant
evidence. 	For the same reasons that the final unfavorable
federal court review was not a necessary predicate to Mr.
Gardner’s due process claims, it is also not a necessary
predicate to his equal protection claims. 	In his federal court
proceedings, Mr. Gardner did not raise the claim that equal
protection guarantees require full review of his mitigation
evidence. 	The fact that the Tenth Circuit did not undertake such
a review is the consequence of his failure to raise the claim,
not the factual predicate that gave rise to the claim.
¶81 	In addition to our conclusion that these claims are
precluded by the limitations bar of the PCRA, we also conclude
that they are procedurally barred because Mr. Gardner could have
raised his equal protection claims in a prior post-conviction
proceeding. 	As discussed, in May 2000, Mr. Gardner filed his
second state petition for post-conviction relief. 226 	In that
petition, he sought review of his trial counsel’s failure to
object to a jury instruction regarding the word “knowingly.”
Although the statute that permits funding for post-conviction
counsel had been effective for more than three years, he did not
challenge the allegedly discriminatory nature of the statute at
that time. Because these claims could have been, but were not,
raised in this prior post-conviction proceeding, even if they
were not untimely, we are precluded by the procedural bar of the
PCRA from considering them. 	Accordingly, we hold that the
district court did not err in determining that Mr. Gardner’s
equal protection claims are barred by the PCRA.

227 See Utah Code Ann. § 78B-9-106(1)(d).
228 See id. § 78B-9-107(2)(e).
229 See Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J.,
statement respecting denial of certioriari). 	We have already
denied such claims in two separate cases. 	See State v. Lafferty,
2001 UT 19, ¶¶ 135-39, 20 P.3d 342; State v. Andrews, 843 P.2d
1027, 1030-31 (Utah 1992). 	Although we did not, in the cases in
which we previously considered this issue, refer to the claims as
“Lackey claims,” given its now-common usage we refer to the
claims as such in this opinion.
230 See Lafferty, 2001 UT 19, ¶¶ 135-39; Andrews, 843 P.2d at
(continued...)
47 	No. 20102436
C. 	Mr. Gardner’s Cruel and Unusual Punishment Claims Are Barred
Because They Could Have Been, but Were Not, Asserted During His
Second State Petition for Post-conviction Relief, or at Some Time
More Than One Year Before the Filing of This Petition
¶82 	Mr. Gardner is precluded from arguing that the length
of time that has passed between his sentencing and execution
constitutes cruel and unusual punishment. 	As with the other
claims advanced by Mr. Gardner, we are willing to accept for the
sake of argument that the claims could not have been raised on
direct appeal, or even in his first state petition for post-
conviction relief. 	But as discussed, the PCRA bars Mr. Gardner’s
claims if they could have been raised in any previous request for
post-conviction relief, 227 or if they were not filed within one
year after the date on which Mr. Gardner knew or should have
known of the evidentiary facts underlying the claim. 228 	We
conclude that the claim could have been raised prior to Mr.
Gardner’s second state petition for post-conviction relief and
that, because it was not raised at that time, it is now barred.
¶83 	Mr. Gardner argues that the prohibitions against cruel
and unusual punishment contained in both the United States and
Utah Constitutions make it unconstitutional to carry out his
death sentence given the lengthy period of time that has elapsed
since his initial sentencing. 	Mr. Gardner’s claim, commonly
referred to as a Lackey claim, 229 is premised on dual notions--
that an execution carried out nearly twenty-five years after the
imposition of a death sentence advances no valid theory of
punishment and that, for death-row inmates, the anxieties
generally associated with incarceration are amplified, which in
turn makes any instance of delay inordinately punitive. 	We have
rejected this sort of claim in the past 230 and have not been

230 (...continued)
1030-31. 	In Lafferty, the petitioner’s claim was based on a
fourteen-year period of incarceration. 	Lafferty, 2001 UT 19, ¶
135. 	As will be discussed below, we conclude that Mr. Gardner
could have raised his claim after having been incarcerated under
a sentence of death for fourteen years. 	So, if Lafferty stands
for the proposition that fourteen years of incarceration is
simply not enough to state a Lackey claim, then Lafferty would
also support the argument that the claim was not available to Mr.
Gardner until after a longer period of time had elapsed.
Lafferty does not stand for that proposition, and is therefore
not inconsistent with our holding in this case.
In Lafferty, our decision rested on the merits of the
petitioner’s claim. 	Id. ¶¶ 135-39. 	More specifically, it rested
on the petitioner’s failure to present any authority to persuade
us that “‘a defendant can avail himself of the panoply of
appellate and collateral procedures and then complain when his
execution is delayed.’” 	Id. ¶ 136 (quoting Knight v. Florida,
528 U.S. 990, 990 (1999) (Thomas, J., statement concurring in
denial of certiorari)). 	As to the potential claim under the
federal constitution, we expressed no opinion on the overall
duration that might support such a claim.
Examining the claim under the Utah Constitution, our
decision rested on a review of the proportionality of the
sentence to the crimes of which the petitioner had been
convicted. 	Id. ¶¶ 137-39. 	Under this proportionality review,
our decision was based on the specific relationship between the
term of incarceration imposed upon, and the crime committed by,
the petitioner in that case. 	Id. 	Thus, rather than being
inconsistent with our decision in this case, Lafferty establishes
that such a claim may be raised after fourteen years and that,
when the merits of that claim are reviewed, its viability will be
established based on the facts of the case at hand.
231 The courts in cases to which we have been directed, and
the cases that we have found, have uniformly rejected Lackey
claims. 	See Thompson v. Sec’y for the Dep’t of Corr., 517 F.3d
1279, 1283-84 (11th Cir. 2008); Reed v. Quarterman, 504 F.3d 465,
488 (5th Cir. 2007) (citing White v. Johnson, 79 F.3d 432, 436-40
(5th Cir. 1996)); Allen v. Ornoski, 435 F.3d 946, 958 (9th Cir.
2006); Chambers v. Bowersox, 157 F.3d 560, 568-70 (8th Cir.
1998); Stafford v. Ward, 59 F.3d 1025, 1028 (10th Cir. 1995);
Turner v. Jabe, 58 F.3d 924, 930-31 (4th Cir. 1995); Selsor v.
Workman, No. 01-CV-0721-CVE-TLW, 2009 U.S. Dist. LEXIS 93348 at
*128-29 (N.D. Okla. Sept. 29, 2009); Ex Parte Bush, 695 So. 2d
(continued...)
No. 20100436 	48
directed to a single case granting relief on this basis. 231

231 (...continued)
138, 140 (Ala. 1997); State v. Schackart, 947 P.2d 315, 336
(Ariz. 1997); Hill v. State, 962 S.W.2d 762, 766-67 (Ark. 1998);
People v. Anderson, 22 P.3d 347, 389-90 (Cal. 2001); Porter v.
State, 653 So. 2d 374, 380 (Fla. 1995); People v. Simms, 736
N.E.2d 1092, 1141-42 (Ill. 2000) (trial counsel not deficient for
failing to raise a Lackey claim because of the “lack of support”
for such a claim); Bieghler v. State, 839 N.E.2d 691, 696-98
(Ind. 2005); Jordan v. State, 786 So. 2d 987, 1028 (Miss. 2001);
State v. Smith, 931 P.2d 1272, 1287-88 (Mont. 1996); State v.
Moore, 591 N.W.2d 86, 93-95 (Neb. 1999); State v. Chinn, C.A.
Case No. 16206, 1997 Ohio App. LEXIS 3614, at *3-5 (Ohio Ct. App.
Aug. 15, 1997); Stafford v. State, 899 P.2d 657, 659-60 (Okla.
Crim. App. 1995); State v. Austin, 87 S.W.3d 447, 485-86 (Tenn.
2002).
232 Mr. Gardner relies on the statement made by Justice
Stevens, with Justice Breyer concurring, in conjunction with the
denial of certiorari in Johnson v. Bredesen, 130 S. Ct. 541
(2009). 	Those statements indicate that at least two Justices of
the United States Supreme Court believe that Lackey claims
“should . . . not accrue until an execution date is set.” 	Id. at
544 (Stevens, J., statement respecting denial of certiorari).
The statements made by two Justices in conjunction with a denial
of certiorari do not carry the force of law. 	As discussed below,
we join those courts that have rejected the argument that such
claims ripen only on the eve of execution.
49 	No. 20102436
Nevertheless, Mr. Gardner urges us to look at the specific facts
of this case, chiefly the fact that he has been incarcerated for
nearly twenty-five years, in considering whether his execution
has been delayed for so long that it is now unconstitutional to
carry out his sentence.
¶84 	Implicit in Mr. Gardner’s Lackey claim is that such a
claim cannot be raised until shortly before execution because it
is only then that the full consequences of the passage of time
can be ascertained. 232 	We reject this proposition for two
reasons. 	First, it invites endless delay, because it would
essentially mandate that review be postponed until the eve of
execution. 	The review being sought would, of course, not be
instantaneous. 	And because the review would take time, when the
review had concluded, the petitioner would be able to assert a
new Lackey claim based on the new, even longer, amount of time
that the petitioner had been incarcerated.
¶85 	It is for this reason that some courts considering the
merits of Lackey claims have disposed of the claims on the ground

233 See Johns v. Bowersox, 203 F.3d 538, 547 (8th Cir. 2000)
(“Although [the petitioner] was entitled to make the motion and
amend his federal petition, he cannot now claim that the delay
caused by his actions constitutes cruel and unusual
punishment.”); Richmond v. Lewis, 948 F.2d 1473, 1491-92 (9th
Cir. 1991) (A petitioner “should not be able to benefit from the
ultimately unsuccessful pursuit of [his constitutional]
rights.”); see also Andrews v. Shulsen, 600 F. Supp. 408, 431 (D.
Utah 1984), aff’d 802 F.2d 1256 (10th Cir. 1986) (The procedures
that led to delay in executing the petitioner “serve[d] the
important state interest of keeping the post conviction process
moving forward at the same time it preserve[d] petitioner’s due
process rights. . . . To accept petitioner’s argument would
create an irreconcilable conflict between constitutional
guarantees and would be a mockery of justice.”).
234 Allen, 435 F.3d at 957-58.
No. 20100436 	50
of waiver. 	That is, because executions are delayed as a result
of a petitioner’s decision to invoke legal process, it is
incongruous to hold that the time consumed by that process makes
the petitioner’s sentence unconstitutional. 233 	For Lackey claims
not to undermine the death penalty altogether, it is crucial that
such claims fully ripen at some point prior to the last day
before execution.
¶86 	This underscores the other reason why we find Mr.
Gardner’s characterization of the claim untenable. 	The second
reason that a Lackey claim exists prior to the eve of execution
is that it is not dependent on the final number of years that
have passed. 	The basis of such a claim, as it has been presented
to us, is two-fold: 	the anxiety that goes along with being
incarcerated while awaiting execution is uniquely harmful, and
the state interests that otherwise support imposition of the
death penalty become increasingly attenuated as time goes by.
Accepting, for the sake of argument, that this can form the basis
of a claim of cruel and unusual punishment, these facts are
apparent prior to the issuance of a warrant of execution. 	At
some point, the harms asserted in a Lackey claim obtain
constitutional significance so that the claim can be raised. 	As
the Ninth Circuit has observed, after this point, “the steady and
predictable passage of time” may strengthen a Lackey claim, but
it is “irrelevant to ripeness.” 234 	Accordingly, we reject the
proposition that Mr. Gardner could not have raised his Lackey

235 See id. (holding Lackey claim barred under the AEDPA as a
successive habeas corpus petition because the petitioner could
have raised the claim in prior petitions filed, respectively,
when incarceration had persisted for six or nine years--the claim
did not become ripe only after fourteen years).
The Allen court was far from alone in rejecting the notion,
proposed by Justice Stevens in his statement in Johnson, 130 S.
Ct. at 544, that such claims should not accrue until after the
signing of a warrant of execution. 	See Chambers, 157 F.3d at
568-69 (holding that petitioner’s failure to raise his Lackey
claim on direct appeal or in his prior post-conviction
proceedings barred consideration of the claim in his federal
habeas corpus action); Fearance v. Scott, 56 F.3d 633, 636-37
(5th Cir. 1995) (holding that failure to raise Lackey claim in
proceedings prior to his third federal habeas corpus action
constituted an abuse of the writ).
Notably, a warrant authorizing the execution of Mr. Gardner
was signed in 1996, but was stayed pending resolution of Mr.
Gardner’s federal habeas corpus action. 	Under the
characterization of the accrual date advanced by Justice Stevens
in Johnson, it is not entirely clear that Mr. Gardner’s claim did
not arise at that time. 	Given the conclusions we reach, we need
not examine the nuances of a Lackey claim filed in a case where
multiple death warrants have been issued.
236 Because we conclude that Mr. Gardner could have raised
his Lackey claim in his second state petition for post-conviction
relief, we need not address whether he also could have raised the
claim in his first state post-conviction petition.
51 	No. 20102436
claim until after the signing of his most recent death warrant. 235
¶87 	This alone does not resolve the issue before us. 	We
must determine not merely whether Mr. Gardner could have brought
his Lackey claim sooner than he did, but whether he could have
raised it more than one year sooner than he did, or in a prior
post-conviction proceeding. 	To make this determination, the
State argues that we may look to May 2000, when Mr. Gardner filed
his second state petition for post-conviction relief. 236 	Because
we find that Mr. Gardner’s claim could have been filed at that
time, we need not ascertain precisely what minimum period of time
must pass before a Lackey claim becomes ripe for judicial
resolution.
¶88 	One component of Mr. Gardner’s Lackey claim relates
solely to the amount of time he has spent incarcerated under a
sentence of death. 	At the time Mr. Gardner filed his second
state petition for post-conviction relief, he had been

237 Although we do not reach the merits of Mr. Gardner’s
Lackey claim, we note that the Ninth Circuit has rejected such a
claim by a petitioner who
claim[ed] that it would be cruel and unusual
punishment in violation of the Eighth
Amendment to execute him after he [had]
resided on death row for over fourteen years,
[had] produced additional mitigation evidence
that was not introduced at trial and [had]
shown that he [was] not a threat to society.
LaGrand v. Stewart, 170 F.3d 1158, 1160 (9th Cir. 1999).
No. 20100436 	52
incarcerated for more than fourteen years. 	The other component
of Mr. Gardner’s claim is that the mitigation evidence that was
developed over time undermines the retributive purpose of
punishing him. 237 	He argues that testimony indicating that some
of his victims would not have desired to see him executed, along
with the mitigating evidence that he argues demonstrates his
reduced culpability, tends to prove that the state’s interest in
retribution is diminished. 	This evidence was known to Mr.
Gardner when he filed his second state petition for post-
conviction relief. 	Further, we have no doubt that any harm that
Mr. Gardner alleges is endured uniquely by death-row inmates
surely would have become apparent to him during his first
fourteen years of incarceration. 	And to the extent that the
passage of time naturally creates an attenuation between the
purposes of punishment and the punishment itself, we are
satisfied that Mr. Gardner also could have raised a claim based
on this attenuation in May 2000. 	Accordingly, we conclude that
Mr. Gardner could have raised his Lackey claim in his second
state petition for post-conviction relief and that, because he
did not, the procedural bar of the PCRA precludes review of this
claim.
¶89 	Our conclusion that Mr. Gardner’s Lackey claim is
procedurally barred leads us to the conclusion that it is also
untimely because it could have been raised more than one year
ago. 	The petition being considered here was filed on May 4,
2010. 	Thus, for Mr. Gardner’s claim to be timely under the PCRA,
Mr. Gardner must demonstrate that the relevant evidentiary facts
remained unknown to him until after May 4, 2009. 	But by that
time, Mr. Gardner had known for nearly a decade of the evidence
that, he contends, demonstrates that the state has a diminished
interest in retribution. 	And by May 2009, the nature of his
incarceration had been known to him for more than two decades.
We are satisfied that any Lackey claim presented by Mr. Gardner
accrued prior to that date. 	Thus, even if Mr. Gardner’s claims
were not precluded by the procedural bar, the claims are

238 See, e.g., Gardner v. Galetka, 2007 UT 3, ¶ 20, 151 P.3d
968; Menzies v. Galetka, 2006 UT 81, ¶ 62, 150 P.3d 480 (“A post-
conviction proceeding is a proceeding of constitutional
importance, over which the judiciary has supervisory
responsibilities due to our constitutional role.”); Tillman v.
State, 2005 UT 56, ¶¶ 21-23, 128 P.3d 1123; Gardner v. Galetka,
2004 UT 42, ¶ 15, 94 P.3d 263; Hurst v. Cook, 777 P.2d 1029, 1033
(Utah 1989) (“Quintessentially, the Writ belongs to the judicial
branch of government.”).
239 Gardner v. Galetka, 2007 UT 3, ¶ 17 (internal quotation
marks omitted).
53 	No. 20102436
independently barred by the limitations provision of the PCRA
because they could have been raised prior to May 2009.
Accordingly, we hold that the district court did not err in
concluding that the PCRA precludes review of Mr. Gardner’s claims
regarding cruel and unusual punishment.
II. 	THE DISTRICT COURT CORRECTLY DECLINED TO REACH THE MERITS OF
MR. GARDNER’S CLAIMS BECAUSE NO EXCEPTION THAT MIGHT PERMIT
REVIEW OF THOSE CLAIMS WOULD APPLY IN THIS CASE
¶90 	Mr. Gardner argues that we have the authority, rooted
in the Utah Constitution and common law, to apply exceptions to
the procedural and limitations bars of the PCRA. 	In so arguing,
he relies on a number of our decisions relating to post-
conviction petitions for relief. 	In these cases, all of which
were decided prior to recent amendments to the PCRA and to the
Utah Rules of Civil Procedure relating to the PCRA, we referred
to the constitutional underpinnings of our authority to apply
judicially created exceptions to procedural rules in the context
of post-conviction petitions. 238 	Most recently, in the 2007
decision in which we address the federal district court’s
certified question in Mr. Gardner’s federal habeas corpus action,
we addressed the extent of this authority: 	“It has long been our
law that a procedural default is not always determinative of a
collateral attack on a conviction where it is alleged that the
trial was not conducted within the bounds of basic fairness or in
harmony with constitutional standards.” 239 	Mr. Gardner relies on
our prior statements to argue that the Utah Constitution confers
on this court authority, which cannot be displaced by statute, to
examine the merits of a claim that is otherwise procedurally
barred.
¶91 	This issue arises from modifications to the PCRA that
took effect in 2008 and related amendments to the Utah Rules of

240 The amendments to Utah Rule of Civil Procedure 65C are
referred to in the advisory committee notes as the “2009
amendments,” even though they became effective in January 2010.
To avoid confusion, we refer to them in the same manner as the
advisory committee notes.
241 Compare Utah Code Ann. § 78-35a-102 (1996) with Utah Code
Ann. § 78B-9-102 (2008).
242 Id. § 78-35a-107(3) (1996).
243 Id. § 78B-9-107(3) (2008).
244 2008 UT 90, ¶ 16 n.8, 201 P.3d 956.
245 Utah R. Civ. P. 65C(a) (2010).
246 Utah R. Civ. P. 65C(c) (2008).
247 See Tillman v. State, 2005 UT 56, ¶¶ 20-22, 128 P.3d
(continued...)
No. 20100436 	54
Civil Procedure. 240 	Prior to 2008, the PCRA was “a substantive
legal remedy” for a petitioner challenging a conviction or
sentence; after 2008, it explicitly designates itself as the
“sole legal remedy.” 241 	The older version of the PCRA included an
exception to the procedural bar for cases where the “interests of
justice” require a court to “excuse a petitioner’s failure to
file” within the necessary time period. 242 	That exception has
been replaced by a provision that tolls the limitations period,
in part, “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.” 243 	We noted in Peterson v. Kennard, that these
amendments “appear[] to have extinguished our common law writ
authority.” 244
¶92 	In 2009, we amended rule 65C of the Utah Rules of Civil
Procedure to “set[] forth the manner and extent to which a person
may challenge the legality of a criminal conviction and sentence”
in post-conviction proceedings. 245 	Prior to these amendments, the
rules permitted “[a]dditional claims relating to the legality of
the conviction or sentence” to be raised “in subsequent
proceedings” if the petitioner could show “good cause” for not
including the claim in prior proceedings. 246 	Under the prior
version of the rule, we held that this exception related to our
constitutional authority to grant relief in cases of obvious
injustice. 247 	This exception was removed as a result of the 2009

247 (...continued)
1123.
248 See Utah R. Civ. P. 65C (2010).
249 Utah R. Civ. P. 65C (2010) advisory committee note.
250 See State v. Anderson, 701 P.2d 1099, 1103 (Utah 1985).
251 See, e.g., Adams v. State, 2005 UT 62, ¶ 16, 123 P.3d
(continued...)
55 	No. 20102436
amendments. 248 	The advisory committee notes that accompanied
those amendments state that their purpose was to “embrace [the
PCRA] as the law governing post-conviction relief.” 249
¶93 	In the time since these amendments, we have not
examined whether the PCRA and rule 65C now wholly accommodate the
full measure of our constitutional authority or whether the Utah
Constitution requires that we be able to consider, in some cases,
the merits of claims otherwise barred by the PCRA. 	Nor have we
examined what the parameters and scope of that authority might be
under the new statutory and rules regime. 	The State acknowledges
that this court retains constitutional authority, even when a
petition is procedurally barred, to determine whether denying
relief would result in an egregious injustice. 	Specifically, the
State argues that “the PCRA’s restrictions on the availability of
post-conviction review are not an unconstitutional encroachment
into any constitutionally based judicial authority . . . because
[rule 65C] demonstrates that [the court] has adopted [the PCRA
procedural and time bars] as controlling in the majority of
cases.” 	But the State also argues that we need not address this
question, which has clear constitutional implications, because
regardless of the boundaries of this court’s authority to apply
an exception to the procedural rules of the PCRA, Mr. Gardner has
failed to prove that any such exception would apply to him.
This argument is in accord with our obligation to “avoid
addressing constitutional issues unless required to do so.” 250
¶94 	We conclude that we need not here define the full
extent of our authority to remedy an egregious injustice, because
whatever the extent of that authority might be, Mr. Gardner has
failed to persuade us that we ought to invoke it in this case.
Our prior decisions on this point have made it clear that a
petitioner must persuade the court that, given the combined
weight of the meritoriousness of the petitioner’s claim and the
justifications for raising it late, the interests of justice
require the court to apply an exception to procedural rules. 251

251 (...continued)
400.
252 Gardner v. Galetka, 2007 UT 3, ¶ 17 (quoting Hurst, 777
P.2d at 1035); see also Kell v. State, 2008 UT 62, ¶¶ 23-24, 194
P.3d 913 (declining to invoke good cause exception where
petitioner offered “no explanation at all for why” his claims
were not brought in a prior proceeding).
No. 20100436 	56
Similarly, the “good cause” exception has been available only to
petitioners who have demonstrated that “‘an obvious injustice’”
would result unless the court reviews the merits of the
petitioner’s claims and that it would be “‘unconscionable’ not to
reexamine the issue.” 252
¶95 	Even if we were to accept Mr. Gardner’s argument that
these exceptions as we articulated them prior to the recent
modifications to the PCRA and to rule 65C have not been altered
by those modifications, we conclude that the exceptions would not
be available to Mr. Gardner in this case. 	The arguments offered
by Mr. Gardner in support of applying these exceptions do not
persuade us that any injustice, let alone an egregious injustice,
will result from our decision not to examine the merits of his
claims. 	As discussed above, Mr. Gardner has failed to show that
his claims were unavailable prior to the time that he filed this
action. 	Moreover, multiple federal courts have examined the
evidence he seeks to have us examine. 	All of those courts found
either that the evidence would not have altered the outcome of
his sentencing or that this court was not unreasonable in
concluding that Mr. Gardner could show no prejudice as a result
of being denied the opportunity to present this evidence.
¶96 	Review of Mr. Gardner’s case has been ongoing for
nearly twenty-five years, during which time great caution and
care have been exercised by multiple courts in order to safeguard
his rights. 	In that time, Mr. Gardner has appeared before this
court six times. 	Given the facts of this case, all of the
procedures Mr. Gardner has had an opportunity to invoke, and the
nature of the claims he raises now, we are satisfied that no
injustice will result from our decision not to resolve his
petition based on the merits of his claims.
¶97 	We have thoroughly reviewed the arguments set forth by
Mr. Gardner and the authority presented to support those
arguments. 	We do not answer the constitutional question the
parties raise, because regardless of the scope of this court’s
authority to apply an exception to the procedural and limitations
bars of the PCRA, we would nevertheless decline to exercise that

57 	No. 20102436
authority in this case. 	Therefore, while we do not address the
district court’s analysis of our constitutional authority, we
affirm its judgment. 	The district court did not err in basing
its decision on the fact that Mr. Gardner’s claims are both
untimely and procedurally barred under the PCRA.
CONCLUSION
¶98 	The district court did not err in granting summary
judgment in favor of the State. 	All of the claims Mr. Gardner
raises in his most recent petition for post-conviction relief are
claims that he could have raised more than a decade ago. 	Under
the PCRA, these claims are barred. 	We have reviewed Mr.
Gardner’s contention that this court may set aside the procedural
rules of the PCRA in the interests of justice and are unpersuaded
that the interests of justice require us to engage in the scope
of review that he requests. 	Throughout the lengthy course of
this case, multiple courts, including this one, have endeavored
to scrupulously ensure that Mr. Gardner’s rights are protected.
We are firmly convinced that he has been treated justly and
fairly. 	Accordingly, we affirm the decision of the district
court.
---
¶99 	Chief Justice Durham, Justice Parrish, Justice Nehring,
and Judge Davis concur in Associate Chief Justice Durrant’s
opinion.
¶100 Utah Court of Appeals Judge James Z. Davis sat.