Allen v. Friel

2008 UT 56
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Paul C. Allen, 	No. 20070254
Petitioner and Appellant,
v.
Clint Friel, Warden, State of 	F I L E D
Utah,
Respondent and Appellee. 	August 19, 2008
---
Second District, Bountiful
The Honorable Glen R. Dawson
No. 050801275
Attorneys: 	Paul C. Allen, Draper, pro se petitioner
Mark L. Shurtleff, Att’y Gen., Kenneth A. Bronston,
Brett J. Delporto, Asst. Att’ys Gen., Salt Lake City,
for respondent
---
NEHRING, Justice:
INTRODUCTION
¶1 	In 2000, Paul Allen was convicted of hiring an
accomplice to kill his wife. 	Following an unsuccessful appeal,
Mr. Allen petitioned for post-conviction relief. 	After his
petition was denied by the district court, both on the merits and
procedurally, Mr. Allen again appealed to this court. 	We affirm
the ruling of the district court dismissing Mr. Allen’s petition
for post-conviction relief.
BACKGROUND
¶2 	Following a trial for paying to have his wife killed,
Mr. Allen was convicted of aggravated murder and was sentenced to
life with the possibility of parole. 	Mr. Allen appealed,
alleging six errors of the trial court. 	This court examined
three of Mr. Allen’s claims on the merits and affirmed Mr.
Allen’s conviction. 	State v. Allen, 2005 UT 11, ¶¶ 55-57, 108

No. 20070254 	2
P.3d 730. 	We refused to consider, due to inadequate briefing,
his three other claims. 	Id. ¶ 11 n.2. 	Mr. Allen, pro se, filed
a petition for post-conviction relief under the Post-Conviction
Relief Act. 	Utah Code Ann. § 78-35a-101 to -304 (2002). 	Mr.
Allen’s petition alleged five broad claims for relief; the
district court, however, discovered eleven separate claims in the
petition. 	The claims the district court found were (1) that
there was judicial bias; (2) that the prosecution used false
testimony during trial; (3) that the jurors were not fair and
impartial; (4) that the trial court erred in refusing to give his
proffered jury instructions; (5) that the jury instructions and
special verdict form were erroneous; (6) that the trial court
erred by trying him for multiple offenses; (7) that the Utah
Supreme Court’s decision on his direct appeal was result-driven
and erroneous; (8) that the trial court’s errors resulted in a
trial that was fundamentally unfair; (9) that the trial court
erred in denying his motion for a new trial; (10) that there was
ineffective assistance of trial counsel; and (11) that there was
ineffective assistance of appellate counsel. 	Mr. Allen’s
petition also challenged the trial court’s denial of the jurors’
request for transcripts of the prosecution witnesses’ testimony.
I. 	THE DISTRICT COURT’S RULING
¶3 	The district court summarily dismissed claim seven as
frivolous on its face. 	It summarily dismissed claim nine because
it had previously been adjudicated. 	The State filed responses to
the remaining claims and later moved for their summary dismissal.
The district court granted the State’s motion and dismissed all
of Mr. Allen’s remaining claims. 	The district court ruled that
most of Mr. Allen’s claims were raised or addressed at trial or
on appeal, or could have been raised but were not raised at trial
or appeal, and were therefore procedurally barred. 	Utah Code
Ann. § 78B-9-106(b), (c) (2008). 	The district court next found
that the trial court properly denied the jurors’ request for
transcripts of prosecution witnesses’ testimony. 	Also, while the
district court recognized that the claim of ineffective
assistance of appellate counsel could not have been raised
before, it found this claim “too vague and speculative” to merit
consideration. 	Last, the district court struck from the record
an affidavit by a juror regarding the jury deliberations during
Mr. Allen’s criminal trial.
II. 	MR. ALLEN’S APPEAL
¶4 	Mr. Allen now appeals the district court’s dismissal of
his claims. 	We affirm the district court’s decision for several
reasons, prominent among them being Mr. Allen’s failure to follow

3 	No. 20070254
appellate rules. 	Mr. Allen ignored one of the most fundamental
principles of the appellate process when he did not identify any
flaws in the district court’s order that required reversal. 	Mr.
Allen’s filings with this court suggest that he would have us
take on the responsibility of applying an independent, critical
eye to all of the activities that comprised the proceedings that
led to his conviction and imprisonment as though we had not
already reviewed his conviction on appeal. 	Additionally, Mr.
Allen chose not to cogently or coherently present arguments in
support of his claims, nor did he provide the portions of the
record that were central to his appeal. 	Further, even if we did
not affirm the district court’s ruling on the grounds that Mr.
Allen failed to follow appellate rules, under the Post-Conviction
Remedies Act, Mr. Allen failed to meet his burden of showing that
there was not a reasonable basis in the record to support the
district court’s holdings.
STANDARD OF REVIEW
¶5 	We review the district court’s legal conclusions for
correctness without deference to the lower court. 	Myers v.
State, 2004 UT 31, ¶ 9, 94 P.3d 211. 	We will disturb the
district court’s factual findings only if they lack a rational
basis. 	Id.; see also Rudolph v. Galetka, 2002 UT 7, ¶ 4, 43 P.3d
467; Medina v. Cook, 779 P.2d 658, 658 (Utah 1989).
DISCUSSION
I. 	THE DISTRICT COURT’S DISMISSAL OF MR. ALLEN’S PETITION FOR
RELIEF SHOULD BE AFFIRMED BECAUSE HE FAILED TO FOLLOW THE
APPELLATE RULES AND DID NOT ADEQUATELY BRIEF THE APPEALABLE
ISSUES
¶6 	The jurisdiction of this court is not unbounded. 	Its
scope is circumscribed by our constitution and by statute.
Article VIII, section 3 of the Utah Constitution limits this
court’s original jurisdiction to issuing extraordinary writs and
answering questions of state law certified by a federal court.
Utah Const. art. VIII, § 3. 	Our jurisdiction over all other
matters is appellate and must be “exercised as provided by
statute.” 	Id. 	Specifically, the Utah Code provides that we have
appellate jurisdiction over “appeals from the district court
involving a conviction or charge of a first degree felony.” 	Utah
Code Ann. § 78A-3-102(3)(i) (2008). 	Mr. Allen’s case involves a
first degree felony, and he is appealing from the district court;
therefore, our jurisdiction over his case is limited to appellate
jurisdiction and is governed by the Utah Rules of Appellate
Procedure.

No. 20070254 	4
A. 	Mr. Allen Has Come to This Court in Virtually Total Disregard
of Our Appellate Rules
¶7 	Mr. Allen’s disregard for our appellate rules is
comprehensive in its scope. 	Our appellate rules require that an
appellant provide an appellate court a brief containing “[a]
statement of the issues presented for review” and an argument
containing “the contentions and reasons . . . with respect to the
issues presented, including the grounds for reviewing any issue
not preserved in the trial court, with citations to the
authorities, statutes, and parts of the record relied on.” 	Utah
R. App. P. 24. 	This organizational framework derives from the
fundamental distinction between the role of appellate courts and
the role of courts of original jurisdiction. 	In an instance
where the court has appellate jurisdiction, an appellant must
allege the lower court committed an error that the appellate
court should correct. 	If an appellant does not challenge a final
order of the lower court on appeal, that decision will be placed
beyond the reach of further review. 	Tracy v. Univ. of Utah
Hosp., 619 P.2d 340, 341 (Utah 1980). 	If an appellant fails to
allege specific errors of the lower court, the appellate court
will not seek out errors in the lower court’s decision. 	“In
general, if a defendant has not raised an issue on appeal, [an
appellate court] may not consider the issue sua sponte.” 	State
v. Rodriguez, 841 P.2d 1228, 1229 (Utah Ct. App. 1992).
¶8 	Further, an appellant’s reply brief “shall be limited
to answering any new matter set forth in the opposing brief.”
Utah R. App. P. 24(c). 	This requirement is rooted in
considerations of fairness. 	If new issues could be raised in a
reply brief, the appellee would have no opportunity to respond to
those arguments. 	It is well settled that “issues raised by an
appellant in the reply brief that were not presented in the
opening brief are considered waived and will not be considered by
the appellate court.” 	Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d
540; see, e.g., State v. Phathammavong, 860 P.2d 1001, 1003-04
(Utah Ct. App. 1993); see also 5 Am. Jur. 2d Appellate Review
§ 560 (1995); 4 C.J.S. Appeal and Error § 619 (1993).
¶9 	In addition to requiring issues to be raised in the
opening brief, this court has repeatedly noted that a brief is
inadequate if “it merely contains bald citations to authority
[without] development of that authority and reasoned analysis
based on that authority.” 	Smith v. Four Corners Mental Health
Ctr., Inc., 2003 UT 23, ¶ 46, 70 P.3d 904 (alteration in
original) (internal quotation marks omitted). 	An appellate court
is not “a depository in which [a party] may dump the burden of

5 	No. 20070254
argument and research.” 	Id. (alteration in original) (internal
quotation marks omitted). 	A petitioner must plead his claims
with sufficient specificity for this court to make a ruling on
the merits. 	Further, although we are reluctant to penalize self-
represented litigants for technical rule violations, we will not
assume an appellant’s “burden of argument and research.” 	Treff
v. Hinckley, 2001 UT 50, ¶ 11, 26 P.3d 212 (internal quotation
marks omitted).
¶10 	Finally, not only must a petitioner point out the
perceived errors of the lower court, he must also provide the
appellate court with the parts of the record that are central to
the determination of his appeal. 	The Utah Rules of Appellate
Procedure require that a brief shall contain “those parts of the
record on appeal that are of central importance to the
determination of the appeal, such as the challenged instructions,
findings of fact and conclusions of law, memorandum decision, the
transcript of the court’s oral decision, or the contract or
document subject to construction.” 	Utah R. App. P. 24(a)(11)(C).
¶11 	Mr. Allen is a self-represented party. 	He is therefore
entitled to “every consideration that may reasonably be
indulged.” 	Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983)
(internal quotation marks omitted). 	However, “[a]s a general
rule, a party who represents himself will be held to the same
standard of knowledge and practice as any qualified member of the
bar . . . .” 	Id. (citations omitted). 	Further, “reasonable”
indulgence is not unlimited indulgence. 	Rather it is meant to
assign to judges the responsibility of informing a self-
represented litigant of matters such as the date of trial, his
right to a trial by jury, and his right to require any previously
retained counsel to provide him the case file and other documents
whose preparation had been covered by prior representation. 	Id.
Reasonable considerations do not include the need to interrupt
proceedings to translate legal terms, explain legal rules, or
otherwise attempt to redress the ongoing consequences of the
party’s decision to function in a capacity for which he is not
trained. 	Id.
¶12 	Before the district court, Mr. Allen was required to
show, by a preponderance of the evidence, that he was entitled to
relief under the Post-Conviction Remedies Act. 	Utah Code Ann.
§ 78-35a-106 (2002). 	The PCRA directs the following:
A person is not eligible for relief . . .
upon any ground that:
(a) may still be raised on direct appeal
or by a post-trial motion;

No. 20070254 	6
(b) was raised or addressed at trial or
on appeal;
(c) could have been but was not raised
at trial or on appeal;
(d) 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
. . . .
Id. § 78-35a-106(1). 	Once the respondent raises one of these
grounds for preclusion, the burden is on the petitioner to prove
by a preponderance of the evidence that the claim should not be
precluded. 	Id. § 78-35a-105. 	When the ground for preclusion is
that the petitioner already addressed or should have addressed
the issue, the petitioner’s claim will not be allowed in a post-
conviction relief proceeding absent unusual circumstances.
Rudolph v. Galetka, 2002 UT 7, ¶ 5, 43 P.3d 467. 	“Unusual
circumstances” are found where there is “‘an obvious injustice or
a substantial and prejudicial denial of a constitutional right.’”
Carter v. Galetka, 2001 UT 96, ¶ 15, 44 P.3d 626 (quoting Hurst
v. Cook, 777 P.2d 1029, 1035 (Utah 1989)). 	Also, this court has
found unusual circumstances “where the requirements of law have
been so disregarded that the party is substantially and
effectively denied due process of law, or where some such fact is
shown that it would be unconscionable not to re-examine the
conviction.” 	Brown v. Turner, 440 P.2d 968, 969 (Utah 1968).
Unusual circumstances have also been found when a defendant has
been represented by the same attorney at both trial and appeal.
Fernandez v. Cook, 870 P.2d 870, 872 (Utah 1993).
¶13 	In sum, in order for his petition to be granted by the
district court, Mr. Allen bore the burden of showing by a
preponderance of the evidence that, for his claims that were not
but could have been raised at trial or on appeal, either there
were unusual circumstances or there was ineffectiveness of
counsel. 	For claims that were not procedurally barred, he bore
the burden of showing by a preponderance of the evidence that he
was entitled to relief under the PCRA. 	The district court found
that he did not meet either of those burdens.
¶14 	Since an appeal is a resort to a superior court to
review the decision of a lower court, Utah appellate rules
require the appellant to address reasons why the district court’s
dismissal of his petition should be overturned. 	Despite this
requirement, Mr. Allen’s brief to this court failed to address
any of the rulings of the district court. 	Instead, his brief was
almost identical to his petition to the district court and

7 	No. 20070254
addressed perceived errors of the trial court and of this court.
Rather than appeal the ruling below, Mr. Allen appeared to ask
for a de novo review of his petition for post-conviction relief.
¶15 	Mr. Allen failed to address any of the district court’s
holdings, specifically, that his claims were procedurally barred
and that the jury should not have been given transcripts of
witnesses’ statements. 	He also failed to address the issue of
ineffective assistance of appellate counsel in his opening brief
and addressed it inadequately in his reply brief. 	Finally, he
failed to address the issue of whether the district court
properly struck the juror’s affidavit.
¶16 	Although his opening brief fails to point out errors in
the district court’s decision, Mr. Allen does mention
ineffectiveness of appellate counsel and the district court’s
holding that his claims were procedurally barred in his reply
brief. 	First, it is insufficient to raise issues in a reply
brief. 	Second, even a generous review of his presentation of
these claims does not result in a finding that his briefing was
adequate. 	It appears that he addressed the ineffectiveness of
appellate counsel argument because the State pointed out that
this would be one of the grounds upon which appeal to this court
could stand. 	Although Mr. Allen’s reply brief mentions
inadequacy of appellate counsel as grounds for appeal, he fails
to brief or otherwise explain the issue. 	Furthermore, Mr. Allen
failed to include portions of the trial court record necessary to
review the issues he attempted to raise. 	We cannot rule on an
issue which has been merely mentioned and not briefed in any way.
Inadequate briefing of an issue is grounds sufficient to uphold
dismissal of this portion of his petition, Smith, 2003 UT 23,
¶ 46, which we do.
¶17 	While we allow Mr. Allen some leeway because he is a
pro se appellant, we cannot write his appeal for him or decide
his case without sufficient briefing. 	This is not Mr. Allen’s
first interaction with the appellate courts, although it is his
first without representation. 	In addition to filing a petition
for post-conviction relief and an appeal of the denial of that
petition in a timely manner, Mr. Allen previously brought a
direct appeal through counsel. 	Following his conviction and
appeal, Mr. Allen consulted with his trial attorneys about
appealing his conviction. 	He also had advisory counsel available
to assist him with his petition for post-conviction relief.
Therefore, while we grant consideration for his lack of legal
training, Mr. Allen’s prior experiences with the court system and
his access to advisory counsel suggest that he had no reason to
be entirely ignorant of the court’s rules. 	Mr. Allen

No. 20070254 	8
demonstrated that he is capable of understanding the rules by
filing a timely appeal of the district court’s dismissal of his
petition, as well as by filing a timely reply to the State’s
opposition brief to his appeal in this case. 	We think it
sufficiently evident that Mr. Allen cannot expect us to reach a
judgment regarding whether the district court’s decision was
supported by the record without the briefing necessary to reach
such a decision.
¶18 	Because Mr. Allen’s brief does not address holdings in
the district court’s order and asks the court to examine his
claim de novo, and because Mr. Allen did not adequately brief his
claims of error, we dismiss his appeal for failure to follow the
appellate rules.
II. 	THE DISTRICT COURT’S DISMISSAL OF MR. ALLEN’S PETITION FOR
RELIEF WAS PROPER BECAUSE THE DISTRICT COURT’S HOLDINGS WERE
REASONABLY SUPPORTED BY THE RECORD
¶19 	The district court’s dismissal of Mr. Allen’s
ineffective assistance of appellate counsel claim was appropriate
because there was adequate support in the record for the district
court’s holding that the claim was too vague and speculative.
Similarly, the district court did not err when it dismissed a
majority of Mr. Allen’s claims because they were procedurally
barred. 	There was also reasonable basis in the record to support
the district court’s holding on that issue. 	Although Mr. Allen’s
opening brief does not address the district court’s holdings that
it was proper to deny the juror’s request for transcripts of
witnesses’ testimony and that a juror’s affidavit regarding jury
deliberations should be stricken, these holdings were also
supported by the record.
A. 	The Record Supported the District Court’s Holding That Mr.
Allen’s Ineffective Assistance of Appellate Counsel Claim Was
Vague and Speculative
¶20 	The district court’s determination that Mr. Allen’s
claim of ineffective assistance of appellate counsel was vague
and speculative was a finding of fact, which we review “in the
light most favorable to the findings and judgment” of the
district court and which “we will not reverse if there is a
reasonable basis therein to support the trial court’s refusal to
be convinced that the [petition] should be granted.” 	Myers v.
State, 2004 UT 31, ¶ 9, 94 P.3d 211 (internal quotation marks
omitted).

9 	No. 20070254
¶21 	In considering ineffective assistance of counsel
claims, this court applies the analysis from Strickland v.
Washington. 	466 U.S. 668, 686 (1984). 	To “prevail on a claim
for ineffective assistance of counsel, the [appellant] has the
burden of proving (1) ‘that counsel’s performance was deficient’
and (2) that ‘the deficient performance prejudiced the defense.’”
State v. Santana-Ruiz, 2007 UT 59, ¶ 19, 167 P.3d 1038 (quoting
Strickland, 466 U.S. at 687). 	The conviction will stand unless
both elements are present. 	Id. 	Counsel’s performance is
deficient only if it “[falls] below an objective standard of
reasonableness under prevailing professional norms.” 	Lafferty v.
State, 2007 UT 73, ¶ 12, 175 P.3d 530 (internal quotation marks
omitted). 	“[P]roof of ineffective assistance of counsel cannot
be a speculative matter but must be a demonstrable reality.”
Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993).
¶22 	Mr. Allen had to prove both of the elements of the
Strickland test in the district court in order to prevail on his
ineffective assistance of appellate counsel claim. 	The district
court found that his claim was vague and speculative. 	In order
for this court to find that the district court’s holding was in
error, Mr. Allen had to demonstrate that it was not reasonably
supported by the record. 	To do so, he needed to show that his
petition to the district court contained proof of both elements
of the test for ineffective assistance of appellate counsel.
¶23 	Mr. Allen failed to demonstrate that his petition for
post-conviction relief offered evidence that his appellate
counsel was deficient and that the deficiency prejudiced his
case. 	In Mr. Allen’s petition to the district court, he raised
the issue of ineffective assistance of appellate counsel in the
last two pages, arguing that a claim of ineffective assistance of
appellate counsel is a first-time claim that cannot be
procedurally barred and that ineffectiveness of appellate counsel
constitutes adequate cause for failure to raise substantive
issues on appeal. 	Mr. Allen argued that “the defense was
constructively ineffective due to the court’s partiality towards
the State and rulings which are representative of a pro-state
bias.” 	He also alleged that his counsel was ineffective because
“he stipulated to a number of issues” without Mr. Allen being
present. 	Finally, Mr. Allen claimed that his trial counsel
failed to object to judicial errors because counsel was afraid of
offending the judge.
¶24 	Mr. Allen did not offer any analysis of whether these
actions were objectively deficient or describe how they
prejudiced his defense if they were. 	Furthermore, Mr. Allen’s
first statement regarding constructive ineffectiveness is most

No. 20070254 	10
accurately described as an attack on the judge rather than on Mr.
Allen’s attorney and therefore cannot constitute deficient
performance of counsel. 	Mr. Allen’s second allegation of
ineffectiveness, that counsel’s stipulations without his presence
constituted deficient performance because Mr. Allen had a right
to be present for discussion of substantive matters in the case,
is unsupported by any evidence that counsel’s action was
objectively deficient. 	As he explained in his reply brief, Mr.
Allen’s primary objection appears to be that his attorney
stipulated to denying jurors transcripts of witnesses’ testimony
when Mr. Allen was not present. 	He does not discuss, however,
how this was objectively deficient. 	In fact, in reviewing Mr.
Allen’s petition, the district court found that denying the
jurors transcripts of witnesses’ testimony was consistent with
Utah Rule of Criminal Procedure 17. 	Additionally, rule 17 only
requires that the judge review jurors’ questions with counsel and
any unrepresented parties. 	Since Mr. Allen was represented by
counsel, his presence was not required by rule 17. 	Although Mr.
Allen suggests that his counsel’s stipulation without his
presence was deficient, he makes no attempt to describe how the
stipulation prejudiced him or that there would have been a
different outcome had he been present.
¶25 	Finally, the instances of ineffective assistance of
counsel pointed out in Mr. Allen’s opening brief are errors of
trial counsel, which could only be reached if they were presented
as issues that appellate counsel should have raised but did not
because of ineffectiveness. 	Mr. Allen failed to explicitly make
the argument that appellate counsel should have complained of the
alleged ineffectiveness on appeal.
¶26 	Not only does the opening brief, where the claim of
ineffectiveness of appellate counsel should have been raised,
fail to directly address the ineffective assistance of appellate
counsel claim, the reply brief fails to address either prong of
the Strickland test once the issue is raised. 	In Mr. Allen’s
direct appeal, six issues were raised, three of which were
dismissed on the merits and three of which were dismissed for
inadequate briefing. 	In his reply brief, Mr. Allen seems to
argue that because the court did not reach the merits of the
inadequately briefed issues, his appellate counsel was per se
deficient. 	The claims we did not reach were (1) that the trial
court erred in refusing to grant a mistrial after a witness
testified that Mr. Allen had retained an attorney prior to his
arrest, (2) that the trial court’s reasonable doubt jury
instruction was erroneous, and (3) that there was cumulative
error. 	He does not provide any analysis explaining why his
counsel’s decision to limit briefing of three issues was

11 	No. 20070254
deficient rather than being a legitimate strategy or tactic. 	He
also does not present any evidence indicating that had we
examined the three inadequately briefed issues, we would have
likely decided them in his favor.
¶27 	It is not likely that a court, relying on the limited
discussion of ineffective assistance of counsel in Mr. Allen’s
petition, could have found that his appellate counsel was
deficient or that any deficiency prejudiced Mr. Allen. 	We
therefore affirm the district court’s dismissal of Mr. Allen’s
ineffective assistance of appellate counsel claim as vague and
speculative.
B. 	The Record Supports the District Court’s Holding That a
Majority of Mr. Allen’s Claims Were Procedurally Barred
¶28 	The district court’s first action in regard to Mr.
Allen’s claims was to dismiss two of them: 	his claim that this
court’s decision in his initial appeal was result-driven and
erroneous and his claim that the trial court erred in denying his
motion for a new trial. 	The district court properly pointed out
that Mr. Allen’s objection to the result reached by this court
was not a claim for which relief could be granted because the
district court did not have the power to review decisions of the
supreme court. 	Also, the district court was correct in
dismissing Mr. Allen’s claim that his motion for a new trial
should have been granted. 	As the district court pointed out,
that claim was directly addressed in State v. Allen, 2005 UT 11,
¶ 49, 108 P.3d 730, and this court affirmed the dismissal of Mr.
Allen’s motion.
¶29 	The district court next dismissed Mr. Allen’s claims
that the prosecution used false testimony during trial, that the
jurors were not fair and impartial, that the trial court erred in
refusing to give Mr. Allen’s jury instructions, that the jury
instructions and special verdict form were erroneous, that he
should not have been tried for multiple offenses, that the trial
court’s errors resulted in a fundamentally unfair trial, and that
his trial counsel was ineffective. 	The district court pointed
out that Mr. Allen “is not entitled to relief on any ground that
was raised or addressed at trial or on appeal, or that could have
been but was not raised at trial or on appeal.” 	See Utah Code
Ann. § 78-35a-106(1)(b), (c) (2002).
¶30 	Mr. Allen previously objected to the trial court’s
refusal to give his requested jury instructions. 	Allen, 2005 UT
11, ¶ 11 n.2. 	In the same proceeding, he also raised the claim
that the trial court’s errors resulted in a fundamentally unfair

No. 20070254 	12
trial. 	Id. ¶ 11. 	Mr. Allen’s allegations that the prosecution
used false testimony during trial, that jurors were biased, that
the jury instructions and special verdict form were erroneous,
and that he should not have been tried for multiple offenses were
not raised in any prior proceeding, but they could all have been
raised in his initial appeal. 	Additionally, Mr. Allen had
different trial and appellate counsel; therefore, his appellate
counsel could have also raised a claim of ineffectiveness of
trial counsel. 	The record in this case shows that the district
court was correct in finding that the bulk of Mr. Allen’s claims
were, or could have been, previously raised and were procedurally
barred.
C. 	The District Court’s Holding Denying the Jurors’ Request for
Transcripts of Witnesses’ Testimony Was Proper
¶31 	Mr. Allen’s petition for post-conviction relief
contained a vague reference to the trial court’s denial of the
jurors’ request for transcripts of the testimony of prosecution
witnesses. 	Although this claim could also have been raised in
Mr. Allen’s initial appeal and should have been deemed to be
procedurally barred, the district court chose to address its
merits. 	The district court found that the denial of the jurors’
request comported with Utah Rule of Criminal Procedure 17. 	A
review of rule 17 indicates that the district court’s holding was
correct. 	Rule 17(i) states the following in relation to
questions by jurors:
(1) If the judge permits jurors to
submit questions, the judge shall control the
process to ensure the jury maintains its role
as the impartial finder of fact and does not
become an investigative body. The judge may
disallow any question from a juror and may
discontinue questions from jurors at any
time.
(2) If the judge permits jurors to
submit questions, the judge should advise the
jurors that they may write the question as it
occurs to them and submit the question to the
bailiff for transmittal to the judge. 	The
judge should advise the jurors that some
questions might not be allowed.
(3) The judge shall review the question
with counsel and unrepresented parties and
rule upon any objection to the question. 	The
judge may disallow a question even though no
objection is made . . . .

13 	No. 20070254
Utah R. Civ. P. 17(i).
¶32 	Additionally, section (l) of rule 17 limits the
material the jury may have with them during deliberation to “the
instructions of the court and all exhibits which have been
received as evidence.” 	Rule 17 not only expressly limits the
material jurors can have during deliberation, it gives the trial
judge wide latitude in deciding which requests of the jury to
grant. 	The district court’s finding that denying the jurors’
request was proper was indeed consistent with rule 17.
D. 	The District Court’s Holding That the Affidavit of Mr. David
Should Be Stricken Was Not in Error
¶33 	Mr. Allen’s petition for post-conviction relief
contained the affidavit of Trenton David, who was one of the
jurors for his trial. 	The State moved to strike the affidavit,
and Mr. Allen replied. 	The district court ultimately granted the
State’s motion in its final order. 	The district court based its
holding on Utah Rule of Evidence 606(b), which prohibits jurors
from testifying about statements made during jury deliberation.
Rule 606(b) states that “a juror may not testify as to any matter
or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that or any other
juror’s mind or emotions as influencing . . . the juror’s mental
processes in connection therewith.”
¶34 	The affidavit of Mr. David concerned the impact the
requested transcripts of witnesses’ testimony would have had on
his decision to find Mr. Allen guilty. 	He stated that “if Judge
Dawson would have allowed George Taylor’s testimony, it was very
likely that I would have found Paul Allen innocent of all
charges.” 	Mr. David also stated that he witnessed jurors
disobeying the court’s instructions not to view any media
coverage of the case or discuss the case during the trial.
Finally, Mr. David expressed his opinion that some of the other
jurors were biased prior to trial because of exposure to media
coverage of the trial.
¶35 	Mr. David’s affidavit clearly contains testimony about
the effect a particular piece of evidence would have had on his
mind during deliberation. 	Because his affidavit concerns the
mental process of the jury, it was properly stricken under rule
606(b).
CONCLUSION

No. 20070254 	14
¶36 	Because Mr. Allen did not properly challenge the
district court’s decision, failed to adequately brief issues, and
did not provide the necessary record, we hold that Mr. Allen’s
petition for post-conviction relief should be denied. 	In
addition, the district court’s holdings were adequately supported
by the record and were legally correct. 	The district court’s
dismissal is upheld.
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¶37 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.