Gardner v. Galetka

1 2004 UT 42, 94 P.3d 263.
2007 UT 3
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. 20051029
Petitioner,
v.
Hank Galetka, Warden of the Utah F I L E D
State Prison,
Respondent. January 12, 2007
---
Attorneys: Mark L. Shurtleff, Att’y Gen., Thomas B. Brunker,
Erin Riley, Asst. Att’ys Gen., Salt Lake City, for
respondent
Andrew Parnes, Ketchum, ID, W. Keith Goody, Alpine,
WY, James C. Bradshaw, Salt Lake City, for petitioner
---
On Certification from the United States District Court
for the District of Utah, Central Division,
The Honorable Tena Campbell
DURRANT, Justice:
INTRODUCTION
¶1 This case is before us on certification of a question
of state law from the United States District Court for the
District of Utah. The question to be addressed is the following:
“If Mr. Gardner had raised the ineffective assistance of counsel
claim at issue in Gardner v. Galetka1 (“Gardner III”) in state
court in a successive petition in 1990, would the petition have
been procedurally barred?”
¶2 We hold that, in 1990, Gardner’s successive post-
conviction claim regarding the ineffective assistance of counsel
would have been procedurally barred because it could have been
brought in a prior post-conviction proceeding. The “good cause”

2 777 P.2d 1029 (Utah 1989).
3 2004 UT 42, ¶¶ 2-6, 94 P.3d 263.
4 Id. ¶ 3 (emphasis added).
5 Id. ¶ 3 n.1.
No. 20051029 2
common law exceptions to the procedural bar that we established
in Hurst v. Cook2 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.
BACKGROUND
¶3 This case comes to us on certification of a question of
state law to determine whether Gardner may receive substantive
review of a successive post-conviction petition for relief. In
his successive post-conviction petition, Gardner claims his
appellate counsel was ineffective in failing to challenge an
erroneous jury instruction given at his trial. We restate here,
largely verbatim, the facts that we set forth in Gardner III.3
¶4 In 1985, Gardner was convicted of first-degree murder,
attempted first-degree murder, aggravated kidnaping, escape, and
possession of a dangerous weapon by an incarcerated person. At
the close of evidence, the trial court instructed the jury on the
requisite elements of first-degree murder. In its separate mens
rea instruction, the trial court misdefined the term “knowingly.”
In pertinent part, the erroneous jury instruction read as
follows:
A person engages in conduct: . . .
2. “Knowingly” when he is aware of the nature
of his conduct, or the existing
circumstances, or is aware that his conduct
is reasonably certain to cause the result.4
¶5 We noted in Garder III that the instructional flaw
stems from the use of the word “or” instead of “and.”5 As a
result, the jury could have convicted Gardner of first-degree
murder by finding only that he was aware of the nature of his
conduct (firing a loaded handgun into his victim’s face from a
short distance away) without also determining, as required by

6 Id. ¶ 4 (citing State v. Gardner (“Gardner I”), 789 P.2d
273, 288 (Utah 1989)).
7 Id. ¶ 4 (citing Gardner v. Holden (“Gardner II”), 888 P.2d
608, 611 (Utah 1994)).
3 No. 20051029
law, that he was “reasonably certain” that his actions would
cause injury.
¶6 Gardner’s attorneys did not object to the erroneous
instruction at trial. The jury convicted Gardner of first-degree
murder and, after a separate penalty hearing, sentenced him to
death.
¶7 On direct appeal, Gardner raised eighteen challenges to
his conviction and sentence, including two claims of
instructional error--neither of which pertained to the
“knowingly” instruction. We affirmed Gardner’s conviction and
death sentence.6 One year later, in 1990, Gardner filed his
first post-conviction petition in the district court and alleged
sixteen grounds for relief, including ineffective assistance of
both trial and appellate counsel. With respect to his
ineffective assistance of counsel claims, however, Gardner did
not include any challenge to the “knowingly” instruction.
Although the district court initially ruled that Gardner was
entitled to a new penalty hearing and direct appeal, we reversed
and reaffirmed his conviction and capital sentence.7
¶8 In 1997, Gardner filed a petition for writ of habeas
corpus in the federal district court, but omitted for the third
time any claim related to the “knowingly” instruction. Finally,
in 1999, Gardner first argued that his appellate counsel
performed deficiently by failing to challenge the “knowingly”
instruction. After accepting written submissions and hearing
argument, the federal district court declined to determine
whether this new claim was barred under Utah law. Instead, it
directed Gardner to file a second post-conviction petition in
state court to exhaust the claim, allowed him to amend his habeas
corpus petition to include the claim, and agreed to hold that
portion of the federal petition in abeyance pending state court
resolution of this new post-conviction claim.
¶9 Upon the filing of Gardner’s second post-conviction
petition in state court, the State moved for summary judgment on
the ground that the petition was procedurally barred.
Specifically, the State argued that the Post-Conviction Remedies

8 Utah Code Ann. §§ 78-35a-101 to -106 (2002).
9 Gardner III, 2004 UT 42, ¶ 6 (citing Utah Code Ann.
§ 78-35a-106(1)(d)).
10 466 U.S. 668 (1984).
11 Gardner III, 2004 UT 42, ¶ 19 (citing Utah Code Ann.
§ 78-35a-106(1)(d)).
12 Spackman ex rel. Spackman v. Bd. of Educ., 2000 UT 87,
¶ 1 n.2, 16 P.3d 533.
No. 20051029 4
Act (“PCRA”)8 precluded Gardner from asserting a new claim of
ineffective assistance of counsel because a challenge to the
“knowingly” instruction “could have been, but was not, raised in
a previous request for post-conviction relief.”9 The district
court denied the State’s motion, ruling that the PCRA
incorporated the pre-Act common law procedural bar rules and
that, pursuant to those rules, Gardner had demonstrated
sufficient “good cause” to justify substantive review of his
claim. The State then moved for summary judgment on the merits.
Applying Strickland v. Washington,10 the district court concluded
that Gardner could not establish a reasonable probability that,
but for his counsel’s failure to challenge the erroneous
“knowingly” instruction, the outcome on direct appeal would have
been different. As such, the district court found that Gardner
had not demonstrated prejudice and granted the State’s motion for
summary judgment.
¶10 In 2004, on Gardner’s appeal from the district court,
we held that Gardner’s second post-conviction claim was
procedurally barred by the PCRA.11 Now we are asked to determine
whether that same post-conviction claim would have been
procedurally barred had it been brought in a successive petition
in 1990, before the passage of the PCRA.
STANDARD OF REVIEW
¶11 On certification from the federal district court, we
“answer the legal questions presented” without “resolv[ing] the
underlying dispute.”12

13 2004 UT 42, 94 P.3d 263.
14 Id. ¶ 8.
15 Id. ¶ 15.
16 Id. ¶ 16 (citing Hurst v. Cook, 777 P.2d 1029 (1989)).
17 Id. ¶ 19.
5 No. 20051029
ANALYSIS
¶12 In 2004, we held in Gardner III13 that Gardner’s
successive post-conviction claim was procedurally barred by the
PCRA.14 We also held that Gardner’s successive post-conviction
claim was barred from receiving review on its merits under our
common law framework, which retained its independent
constitutional significance even after the PCRA went into
effect.15 We concluded that Gardner’s claim was “facially
implausible” and therefore declined to reach an analysis under
the “good cause” common law exceptions that we established in
Hurst v. Cook.16 We must now determine whether we would have
arrived at the same holding in 1990. In other words, if Gardner
had filed his successive petition in 1990, would we have
determined, as we did in 2004, that the Hurst exceptions do not
apply to “facially implausible” claims?
¶13 We hold that Gardner’s successive post-conviction
petition would have been procedurally barred as a matter of 1990
state law. In describing the basis for this holding, we will
first discuss our decision in Gardner III and its application to
the question before us. Second, we will discuss our common law
procedural bar jurisprudence for successive post-conviction
petitions as it existed in 1990. Under the common law, as we
emphasized in Gardner III, Gardner’s successive post-conviction
claim would have been summarily dismissed as “facially
implausible,” and therefore an analysis under the “good cause”
common law exceptions would not have been reached.
I. GARDNER III
¶14 In Gardner III, our 2004 decision, we held that
Gardner’s claim for ineffective assistance of counsel based on
the erroneous “knowingly” jury instruction was procedurally
barred as a successive claim by the Post-Conviction Remedies
Act.17 The PCRA bars a successive post-conviction claim that
“could have been, but was not, raised in a previous request for

18 Utah Code Ann. § 78-35a-106(1)(d) (2002).
19 Gardner III, 2004 UT 42, ¶ 13.
20 Id. ¶ 19.
21 Id. ¶ 13.
22 Id. ¶¶ 13, 16.
23 Utah Code Ann. § 78-35a-102(1) (2002).
24 Gardner III, 2004 UT 42, ¶ 9 (citing Utah Code Ann.
§ 78-35a-106).
25 See Utah Code Ann. § 78-35a-106(1)(d).
No. 20051029 6
post-conviction relief.”18 We noted that Gardner’s successive
post-conviction petition was filed nearly four years after the
PCRA’s effective date of July 1, 1996, and therefore the language
of the statute controlled.19 We concluded that Gardner’s
ineffective assistance of counsel claim for failing to challenge
the “knowingly” jury instruction could have been brought in his
first post-conviction petition.20 Thus, Gardner’s successive
post-conviction claim was procedurally barred by the PCRA from
receiving substantive review on its merits.21
¶15 In Gardner III, we discussed the interplay between the
PCRA and our common law post-conviction procedural bar
jurisprudence. Significantly, we held that Gardner’s successive
post-conviction claim was barred under both the PCRA and the
common law.22
A. The Post-Conviction Remedies Act
¶16 In 1996, the legislature enacted the PCRA to
“establish[] a substantive legal remedy for any person who
challenges a conviction or sentence for a criminal offense and
who has exhausted all other legal remedies.”23 The Act’s plain
language “purports to replace our common law post-conviction
procedural bar jurisprudence with a statutory restriction on
successive claims.”24 The Act’s statutory restriction bars a
successive post-conviction claim that “could have been, but was
not, raised in a previous request for post-conviction relief.”25

26 Brown v. Turner, 440 P.2d 968, 969 (Utah 1968).
27 Martinez v. Smith, 602 P.2d 700, 702 (Utah 1979).
28 Hurst v. Cook, 777 P.2d 1029, 1036 (Utah 1989).
29 Martinez, 602 P.2d at 702.
30 Hurst, 777 P.2d at 1035.
31 Utah R. Civ. P. 65B(i)(4) (1989) (repealed 1991). The
rules regarding post-conviction relief have since been
substantially amended and reordered; however, the substance of
this rule remains the same. See Utah R. Civ. P. 65C(c) (“The
petition shall set forth all claims that the petitioner has in
relation to the legality of the conviction or sentence.
Additional claims relating to the legality of the conviction or
(continued...)
7 No. 20051029
B. Hurst v. Cook: “Good Cause” Common Law Exceptions
¶17 Our common law post-conviction procedural bar
jurisprudence uses language similar to the statutory restriction
set forth in the PCRA. As a matter of common law, we have held
that courts will not review a post-conviction claim of error
where the error “is something which is known or should [have
been] known to the party at the time the judgment was entered”
and therefore could have been raised at an earlier time.26
Nevertheless, in our common law we created exceptions to this
general rule, stating that “the law should not be so blind and
unreasoning that where an injustice has resulted the [petitioner]
should be without remedy.”27 “[I]t 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.”28 Therefore, even where a claim of
error could have been raised earlier, post-conviction relief may
be available in those “rare cases”29 or “unusual circumstances”
where “an obvious injustice or a substantial and prejudicial
denial of a constitutional right has occurred” that would make it
“unconscionable” not to reexamine the issue.30
¶18 Additionally, rule 65B(i)(4) of the Utah Rules of Civil
Procedure, in effect until 1991, provided that all post-
conviction claims “shall be raised in the post-conviction
proceeding brought under this rule and may not be raised in
another subsequent proceeding except for good cause shown
therein.”31 Rule 65B(i)(4) did not state what constituted “good

31 (...continued)
sentence may not be raised in subsequent proceedings except for
good cause shown.”).
32 777 P.2d 1029 (Utah 1989).
33 Id. at 1037 (citations omitted).
34 Candelario v. Cook, 789 P.2d 710, 712 (Utah 1990).
No. 20051029 8
cause” in this context. In our 1989 Hurst v. Cook32 decision, we
established five “good cause” exceptions pursuant to which a
successive post-conviction claim may receive review on its
merits:
A showing of good cause that justifies the
filing of a successive [post-conviction]
claim may be established by showing (1) the
denial of a constitutional right pursuant to
new law that is, or might be, retroactive,
(2) new facts not previously known which
would show the denial of a constitutional
right or might change the outcome of the
trial, (3) the existence of fundamental
unfairness in a conviction, . . . (4) the
illegality of a sentence, or (5) a claim
overlooked in good faith with no intent to
delay or abuse the writ.33
We later clarified that this list of “good cause” exceptions is
not exhaustive.34
¶19 In Gardner III, we stated that
[w]ith the 1996 passage of the PCRA, only two
of the five “good cause” factors enumerated
in Hurst remain uncodified. The Act
impliedly includes the first Hurst factor,
“the denial of a constitutional right
pursuant to [retroactive] new law,” since a
claim predicated on fresh jurisprudence could
clearly not have been raised in a prior post-
conviction petition. Likewise, the Act also
provides for relief on the basis of “newly
discovered evidence,” thereby incorporating
the second Hurst factor. Finally, the fourth
Hurst factor is codified in Utah Rule of
Criminal Procedure 22(e), which empowers the
court to “correct an illegal sentence or a

35 Gardner III, 2004 UT 42, ¶ 14 (citations omitted)
(alteration in original).
36 Id. ¶ 15.
37 Id. ¶ 18.
38 Id. ¶ 17 (quoting Hurst v. Cook, 777 P.2d 1029, 1033
(Utah 1989)); see Utah Const. art. VIII, § 3 (“The Supreme Court
shall have original jurisdiction to issue all extraordinary writs
and . . . power to issue all writs and orders necessary for the
exercise of the Supreme Court’s jurisdiction or the complete
determination of any cause.”).
39 Gardner III, 2004 UT 42, ¶ 17 (citing Julian v. State,
966 P.2d 249, 253 (Utah 1998)(alteration in original)).
40 Id. ¶ 18.
9 No. 20051029
sentence imposed in an illegal manner, at any
time.” Consequently, the only Hurst . . .
exceptions that have not been addressed by
the legislature are “the existence of
fundamental unfairness in a conviction” and
“a claim overlooked in good faith with no
intent to delay or abuse the writ.”35
¶20 Despite the statutory enactment of three of the Hurst
factors, however, we emphasized that “all five common law
exceptions retain their independent constitutional significance
and may be examined by this court in our review of post-
conviction petitions.”36 We stated, “While we do not disagree
with the legislature’s enactment of the PCRA–-which of course,
embodies the popular will–-and generally afford deference to its
decisions, we nevertheless will continue to exercise our
constitutionally vested authority where appropriate.”37 We noted
that “the power to review post-conviction petitions
‘quintessentially . . . belongs to the judicial branch of
government’ pursuant to article VIII of the Utah Constitution.”38
As such, “the legislature may not impose restrictions which limit
[post-conviction relief] as a judicial rule of procedure, except
as provided in the constitution.”39 We concluded, “Our state
constitution is designed to prevent the unlawful, improper
incarceration or execution of innocent individuals, and for that
reason, we uphold the viability of the Hurst ‘good cause’
exceptions.”40 As a result, it is possible for a successive
post-conviction claim to be procedurally barred under the PCRA

41 Id. ¶ 16.
42 Id.
43 Id.
44 Id. ¶ 13 n.3.
45 Gardner III, 2004 UT 42, ¶ 13 n.4.
No. 20051029 10
and yet receive substantive review on its merits under our
independent “good cause” common law exceptions.
C. Gardner’s Successive Post-Conviction Claim Is “Facially
Implausible”
¶21 In Gardner III, we did not review Gardner’s successive
post-conviction claim, the same claim at issue before us now,
under the “good cause” common law exceptions. We declined to
reach this analysis because we held that Gardner’s successive
post-conviction claim was “facially implausible.”41 We held that
“[i]n order to reach analysis under the Hurst factors, a claim
must be facially plausible. Gardner’s [claim] is not, so we do
not reach such an analysis.”42 We stated that “[i]t is absurd to
suggest that any reasonable juror could find that Gardner was
aware that he was firing a loaded handgun into his victim’s face
from a short distance away, but was not reasonably certain that
his action would cause death.”43 We noted explicitly that we
were determining the case solely on a procedural basis and were
not reaching the merits of Gardner’s claim.44 In other words,
determining that Gardner’s successive post-conviction claim was
“facially implausible” was not a substantive merits review, but
rather a procedural inquiry that we conducted before reaching
consideration under the “good cause” common law exceptions.
¶22 In Gardner III, we left open the question of whether
Gardner’s successive post-conviction petition would have been
procedurally barred in 1990, before the PCRA was enacted.45 We
must now determine whether, under the common law in 1990, we
would have arrived at the same conclusion that we did in 2004--
declining to reach analysis under the “good cause” common law
exceptions because Gardner’s claim is “facially implausible.” We
conclude that this is exactly what we would have done. We will
now discuss our common law procedural bar jurisprudence as it
existed in 1990 and illustrate its application to Gardner’s
successive post-conviction claim.

46 Tillman v. State, 2005 UT 56, ¶ 20, 128 P.3d 1123 (citing
Hurst v. Cook, 777 P.2d 1029, 1033 (Utah 1989)).
47 See Gardner III, 2004 UT 42, ¶ 16.
11 No. 20051029
II. THE COMMON LAW IN 1990
¶23 In 1990, before the PCRA was enacted, our common law
procedural bar jurisprudence governed whether a successive post-
conviction petition would receive substantive review on its
merits. Just as the PCRA does now, the common law barred a
successive post-conviction claim “when the claim could have been
raised in a prior post-conviction proceeding.”46
¶24 It is clear that Gardner’s successive post-conviction
claim regarding the ineffective assistance of counsel could have
been raised in a prior post-conviction proceeding and therefore
would have been procedurally barred under the common law in 1990.
We must now determine whether, in 1990, Hurst’s “good cause”
common law exceptions would have applied to Gardner’s successive
post-conviction claim. In other words, would we have declined in
1990 to reach a “good cause” analysis because Gardner’s claim is
facially implausible? We conclude that, in 1990, just as in
2004, we required a threshold showing of non-frivolousness for
successive post-conviction claims before we would reach analysis
under the Hurst “good cause” common law exceptions. Therefore,
in 1990, just as in Gardner III in 2004, we would have declined
to reach analysis under the “good cause” common law exceptions
because Gardner’s successive post-conviction claim is facially
implausible.47 As a result, Gardner’s claim would have been
procedurally barred.
¶25 A successive post-conviction claim that is “facially
implausible” or, in other words, “frivolous” does not warrant
consideration under the “good cause” common law exceptions. This
procedural requirement is consistent with the exceptions that we
established in Hurst. There is no “good cause” that justifies
bringing before a court a frivolous post-conviction claim.
Indeed, there is no “fundamental unfairness” in dismissing a
frivolous claim. Additionally, Hurst’s “overlooked in good
faith” factor has no reasonable application because any frivolous
claim could be said to be overlooked in good faith. There is an
infinite universe of frivolous claims that could be brought in
successive post-conviction petitions were the “overlooked in good
faith” exception to apply to frivolous claims. The “overlooked
in good faith” factor does not contemplate this implausible
application.

48 Hurst, 777 P.2d at 1037.
49 Gardner III, 2004 UT 42, ¶ 16.
50 Id.
51 See Utah R. Civ. P. 65B(c)(4) (1992). The rule, which
has since been renumbered in Rule 65C, now states as follows:
The assigned judge shall review the petition,
(continued...)
No. 20051029 12
¶26 Moreover, in Hurst itself, we explicitly stated that
“[f]rivolous claims, once-litigated claims with no showing of
‘unusual circumstances’ or ‘good cause,’ and claims that are
withheld for tactical reasons should be summarily denied.”48
This language imposes a separate and distinct procedural
determination for successive post-conviction claims that is made
before we reach an analysis under the “good cause” common law
exceptions. In Gardner III, we simply applied this same
procedural determination, holding that Gardner’s successive post-
conviction claim was “facially implausible” or, in other words,
“frivolous.”49 As a result, in Gardner III we declined to reach
a discussion of the “good cause” common law exceptions.50
¶27 Furthermore, if frivolous, successive post-conviction
claims were not subject to summary dismissal, petitioners would
almost always receive merits review of their frivolous claims.
Without summary dismissal, analysis under the “good cause” common
law exceptions would effectively eliminate any procedural bar,
taking the teeth out of both the PCRA procedural bar and the
common law exceptions to that bar, which survived the PCRA.
First, petitioners’ claims would always reach initial analysis
under the “good cause” common law exceptions. Second, if Hurst’s
“overlooked in good-faith” factor has application even to
frivolous claims, then petitioners would easily get past the
procedural bar and receive review on the merits of their claims.
As stated above, almost by definition a frivolous claim will be
“overlooked in good faith,” and therefore petitioners could
channel their frivolous claims through this particular Hurst
exception and sidestep both the statutory and common law
procedural bar. Our independent common law review of successive
post-conviction claims does not allow for such an implausible
result.
¶28 We also note that the Utah Rules of Civil Procedure
were amended in 1991, after Hurst, to explicitly include
frivolousness as a basis for dismissing successive post-
conviction claims.51 Adopting summary dismissal of frivolous

51 (...continued)
and, if it is apparent to the court that any
claim has been adjudicated in a prior
proceeding, or if any claim in the petition
appears frivolous on its face, the court
shall forthwith issue an order dismissing the
claim, stating either that the claim has been
adjudicated or that the claim is frivolous on
its face.
Utah R. Civ. P. 65C(g)(1).
52 See, e.g., Adams v. State, 2005 UT 62, ¶ 19, 123 P.3d
400; Hutchings v. State, 2003 UT 52, ¶ 14, 84 P.3d 1150.
53 2004 UT 42, 94 P.3d 263.
54 777 P.2d 1029 (Utah 1989).
13 No. 20051029
claims into the rules of civil procedure was consistent with our
decision in Hurst, and we have since discussed this standard in a
number of cases.52 Thus, in Gardner III, we were not placing a
new common law procedural hurdle before the “good cause”
exceptions, but rather we were simply reiterating what Hurst
itself had held regarding the summary dismissal of frivolous
claims. Moreover, summary dismissal of frivolous claims in 1990
was entirely consistent with the Hurst exceptions themselves and
our overall common law post-conviction procedural bar
jurisprudence.
¶29 The bottom line is this–-the Hurst exceptions to the
procedural bar of successive claims are not available as to
frivolous claims. This was true in 1990, just as it was in 2004.
The intervening PCRA did not effect this initial procedural
hurdle in any manner, because our common law post-conviction
procedural bar jurisprudence has retained its independent
constitutional significance.
CONCLUSION
¶30 If Mr. Gardner had raised the ineffective assistance of
counsel claim at issue in Gardner v. Galetka53 (“Gardner III”) in
state court in a successive post-conviction petition in 1990, the
claim would have been procedurally barred as a matter of state
law because it could have been brought in a prior post-conviction
proceeding. Additionally, the “good cause” common law exceptions
to the procedural bar that we established in Hurst v. Cook54 were
unavailable to Gardner because his successive post-conviction
claim is “facially implausible.”

No. 20051029 14
---
¶31 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.