Benvenuto v. State

2007 UT 53
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Jorge Martin Benvenuto, No. 20060197
Plaintiff and Appellant,
v.
F I L E D
State of Utah,
Defendant and Appellee. July 17, 2007
---
Third District, Salt Lake
The Honorable Deno Himonas
No. 050912317
Attorneys: Grant W. P. Morrison, William Patrick Morrison,
Salt Lake City, for plaintiff
Mark L. Shurtleff, Att’y Gen., Thomas B. Brunker,
Asst. Att’y Gen., Salt Lake City, for defendant
---
DURRANT, Justice:
INTRODUCTION
¶1 This case is before us on appeal from the district
court’s order denying Jorge Martin Benvenuto’s petition for post-
conviction relief. Benvenuto argues that the State of Utah
violated his rights as a foreign national under the Vienna
Convention on Consular Relations (“Vienna Convention”) when law
enforcement authorities failed to notify him of his right to
consular notification upon his arrest. He also argues that he is
entitled to post-conviction relief because his attorneys were
ineffective in failing to notify him of his rights under the
Vienna Convention and failing to argue that he should have been
allowed to withdraw his guilty pleas because those rights were
violated. We address each of Benvenuto’s arguments and
ultimately affirm the decision of the district court denying
post-conviction relief.

1 Benvenuto identified himself as a United States citizen on
an employment application he completed in October 1995.
2 These appointments met the requirements of rule 8 of the
Utah Rules of Criminal Procedure.
No. 20060197 2
BACKGROUND
¶2 Benvenuto was born in Uruguay on July 31, 1977, and
entered the United States with his mother in August 1985 through
a resident visa. He remains a citizen of Uruguay and has never
obtained United States citizenship. He lived in New York City
until 1995, when he relocated to Utah.
¶3 On the evening of August 28, 1996, Benvenuto shot
Zachary Snarr and Yvette Rodier several times, killing Snarr and
severely wounding Rodier. The police located Benvenuto the
following day and took him into custody. While in custody, he
confessed to the crime. Benvenuto never informed law enforcement
that he was an Uruguayan national because he believed he was, in
fact, a citizen of the United States.1
¶4 In September 1996, the State charged Benvenuto with
aggravated murder, a capital felony; attempted aggravated murder;
and two counts of aggravated robbery. The trial court appointed
four attorneys to represent Benvenuto, three of whom had
experience representing capital homicide defendants, and all of
whom had experience representing homicide and felony defendants.2
There is no evidence in the record that Benvenuto ever told any
of these attorneys that he was a citizen of Uruguay.
¶5 On October 15, 1997, Benvenuto accepted a plea offer
from the State. Benvenuto pleaded guilty to one count each of
aggravated murder and attempted aggravated murder. In exchange
for these guilty pleas, the State dropped the aggravated robbery
counts and agreed not to seek the death penalty on the capital
murder charge. At the plea-change hearing, the trial judge
engaged in an extensive colloquy with Benvenuto and determined
that Benvenuto knowingly and voluntarily entered into his guilty
pleas. At this hearing, the trial judge asked Benvenuto if he
read, wrote, and spoke English. Benvenuto acknowledged that he
did. In addition, Benvenuto told the judge that English was his
primary language and affirmatively represented that he was a
United States citizen. The judge also noted, and Benvenuto
confirmed, that Benvenuto was born in Uruguay.
¶6 After pleading guilty, but before being formally
sentenced, Benvenuto filed a motion to withdraw his guilty pleas

3 State v. Benvenuto, 1999 UT 60, 983 P.2d 556.
4 Taylor v. State, 2007 UT 12, ¶ 13, 156 P.3d 739 (internal
quotation marks and citations omitted).
3 No. 20060197
and retained new counsel. Benvenuto argued that he was confused
and depressed at the time he pleaded guilty. He alleged neither
that he was a citizen of Uruguay nor that police failed to inform
him of his rights under the Vienna Convention, and he did not
seek to withdraw his pleas based on any alleged violation of the
Vienna Convention. The trial court held an evidentiary hearing
and again found that Benvenuto entered into his pleas knowingly
and voluntarily. On January 30, 1998, the trial court formally
sentenced Benvenuto to life in prison without parole on the
aggravated murder charge and an indeterminate prison term of five
years to life on the attempted aggravated murder charge.
¶7 Benvenuto appealed, challenging the trial court’s
findings and conclusions on his motion to withdraw his pleas.
Again, he neither alleged Uruguayan citizenship nor argued that
his Vienna Convention rights had been violated. We affirmed the
trial court’s rulings on June 18, 1999.3 Benvenuto’s time to
seek review before the United States Supreme Court expired ninety
days later.
¶8 In July 2002, Ciro Darelli, a member of the Uruguayan
Consulate, visited Benvenuto in prison. During or shortly after
that visit, Benvenuto learned that he was a citizen of Uruguay
despite the fact that he always assumed himself to be a citizen
of the United States. He also learned that, at the time of his
arrest, he had a right under the Vienna Convention to immediately
communicate with the Uruguayan Consulate. Benvenuto claims that
he lacked the proper resources to hire an attorney and therefore
did not do so until November 16, 2004. Benvenuto filed this
petition for post-conviction relief on July 15, 2005, which the
district court dismissed on February 2, 2006. Benvenuto now
appeals, and we have jurisdiction pursuant to Utah Code section
78-2-2(3)(i).
STANDARD OF REVIEW
¶9 “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.”4 As
to an ineffective assistance of counsel claim, “we review a lower

5 Id.
6 Utah Code Ann. §§ 78-35a-101 to -304 (2002 & Supp. 2006).
7 Vienna Convention on Consular Relations preamble, Apr. 24,
1963, 21 U.S.T. 77, 596 U.N.T.S. 261.
No. 20060197 4
court’s purely factual findings for clear error, but review the
application of the law to the facts for correctness.”5
ANALYSIS
¶10 Benvenuto has exhausted all of his direct appeals and
now challenges his conviction collaterally under Utah’s Post-
Conviction Remedies Act (the “PCRA”).6 He makes a number of
claims for post-conviction relief, all of which are based on
alleged violations of his rights as an arrested foreign national
under the Vienna Convention on Consular Relations.
¶11 The Vienna Convention is a multilateral treaty to which
both the United States and Uruguay are signatory nations. The
purpose of the Vienna Convention is to “ensure the efficient
performance of functions by consular posts on behalf of their
respective States.”7 These functions include:
(a) protecting in the receiving State the
interests of the sending State and of its
nationals . . . ;
. . . ;
(e) helping and assisting nationals . . . of
the sending State;
. . . ;
(i) subject to the practices and procedures
obtaining in the receiving State,
representing or arranging appropriate
representation for nationals of the sending
State before the tribunals and other
authorities of the receiving State, for the
purpose of obtaining, in accordance with the
laws and regulations of the receiving State,
provisional measures for the preservation of
the rights and interests of these nationals,
where, because of absence or any other
reason, such nationals are unable at the

8 Vienna Convention on Consular Relations art. 5, Apr. 24,
1963, 21 U.S.T. 77, 596 U.N.T.S. 261. The “receiving State” is
the country in which the foreign national is located, and the
“sending State” is the foreign national’s country of origin. In
this case, the United States is the receiving State and Uruguay
is the sending State.
9 Vienna Convention on Consular Relations art. 36(1)(b),
Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.
5 No. 20060197
proper time to assume the defence of their
rights and interests.8
¶12 With respect to foreign nationals that are arrested or
otherwise detained, the Vienna Convention provides for the
exercise of consular functions as follows:
[I]f [the foreign national] so requests, the
competent authorities of the receiving State
shall, without delay, inform the consular
post of the sending State if, within its
consular district, a national of that State
is arrested or committed to prison or to
custody pending trial or is detained in any
other manner. . . . The said authorities
shall inform the person concerned without
delay of his rights under this sub-
paragraph[.]9
Law enforcement officials in the United States therefore have a
duty to notify an arrested foreign national “without delay” that
he has a right to contact and communicate with his consulate.
¶13 Benvenuto argues that the State of Utah violated his
rights to consular notification under the Vienna Convention and
that the proper remedy for this violation is to have his
conviction and sentence reviewed and reconsidered. Benvenuto
believes that he is entitled to post-conviction relief for two
reasons. First, he argues that, had he been aware of a violation
of an international treaty, this “likely would have precluded a
plea of guilty.” Second, he argues that his trial and appellate
counsel were ineffective because they failed to notify him of his
rights under the Vienna Convention and failed to argue that he
should have been permitted to withdraw his guilty pleas because
his rights under the Vienna Convention were violated.
¶14 In response, the State of Utah argues that Benvenuto’s
petition is both procedurally barred and time barred. The

10 Utah Code Ann. §§ 78-35a-101 to -304 (2002 & Supp. 2006).
No. 20060197 6
alleged violations of the Vienna Convention are, the State
argues, issues that could have been, but were not, raised in
Benvenuto’s motion to withdraw his guilty pleas; as such, the
petition is procedurally barred. In addition, the State argues
that Benvenuto’s claims were filed long past the expiration of
the statue of limitations for post-conviction relief and are time
barred.
¶15 We affirm the district court’s order and hold that
Benvenuto’s request for post-conviction relief is both
procedurally barred and time barred. In so holding, we first
address the requirements of the PCRA. We then address the
procedural bar and the time bar and find that Benvenuto has not
met the requirements to overcome either of them. We note that
the district court’s opinion in this case was particularly
thorough and well reasoned; we therefore quote liberally from it.
I. UTAH’S POST-CONVICTION REMEDIES ACT ENUMERATES THE BASES
FOR AND BARS TO POST-CONVICTION RELIEF
¶16 The Post-Conviction Remedies Act10 allows “a person who
has been convicted and sentenced for a criminal offense” to file
an action for post-conviction relief upon the following grounds:
(a) the conviction was obtained or the
sentence was imposed in violation of the
United States Constitution or Utah
Constitution;
(b) the conviction was obtained under a
statute that is in violation of the United
States Constitution or Utah Constitution, or
the conduct for which the petitioner was
prosecuted is constitutionally protected;
(c) the sentence was imposed in an
unlawful manner, or probation was revoked in
an unlawful manner;
(d) the petitioner had ineffective
assistance of counsel in violation of the
United States Constitution or Utah
Constitution; or

11 Id. § 78-35a-104(1) (2002).
12 Id. § 78-35a-106(1)(c).
13 Id. § 78-35a-106(2).
14 Id. § 78-35a-107(1).
15 Id. § 78-35a-107(3).
16 Id. § 78-35a-106(1)(c).
17 Id. § 78-35a-106(2).
18 466 U.S. 668 (1984).
7 No. 20060197
(e) newly discovered material evidence
exists that requires the court to vacate the
conviction or sentence.11
A petitioner is “procedurally barred” from relief under the PCRA
if an issue “could have been but was not raised at trial or on
appeal”12 unless the petitioner can demonstrate that “the failure
to raise that ground was due to ineffective assistance of
counsel.”13 In addition, a “time bar” precludes post-conviction
relief unless the petitioner files the petition “within one year
after the cause of action has accrued.”14 But “[i]f the court
finds that the interests of justice require, a court may excuse a
petitioner’s failure to file within the time limitations.”15
¶17 We address the procedural bar and the time bar as they
apply to Benvenuto below.
II. BENVENUTO IS PROCEDURALLY BARRED FROM SEEKING
POST-CONVICTION RELIEF
¶18 Because the PCRA bars petitions for relief for issues
that “could have been but w[ere] not raised at trial or on
appeal,”16 and Benvenuto concedes that he could have but did not
raise his Vienna Convention claims at those times, his petition
is barred unless he can demonstrate that the failure to raise the
issue at trial and on appeal was due to the ineffective
assistance of counsel.17 To prevail on an ineffective assistance
of counsel claim, Benvenuto must meet the requirements of
Strickland v. Washington18 and demonstrate, “first, that his
counsel rendered a deficient performance in some demonstrable
manner, which performance fell below an objective standard of
reasonable professional judgment and, second, that counsel’s

19 Bundy v. DeLand, 763 P.2d 803, 805 (Utah 1988).
20 Strickland, 466 U.S. at 687.
21 Id. at 688.
22 Id. at 689 (internal quotation marks omitted).
23 Id. at 690.
24 Id. at 691.
No. 20060197 8
performance prejudiced” him.19 We address each prong of the
Strickland standard with respect to Benvenuto’s claims below.
A. The Performance of Benvenuto’s Trial, Post-Plea, and
Appellate Counsel Was Not Deficient
¶19 An attorney’s performance is deficient if “counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”20
The seriousness of those errors is measured by whether “counsel’s
representation fell below an objective standard of
reasonableness”--“reasonableness under prevailing professional
norms.”21 In making this assessment, “a court must indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.”22
¶20 In challenging counsel’s effectiveness,
[a] convicted defendant . . . must identify
the acts or omissions of counsel that are
alleged not to have been the result of
reasonable professional judgment. The court
must then determine whether, in light of all
the circumstances, the identified acts or
omissions were outside the wide range of
professionally competent assistance.23
Importantly, “[t]he reasonableness of counsel’s actions may be
determined or substantially influenced by the defendant’s own
statements or actions. Counsel’s actions are usually based,
quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant.”24 The
court must make “every effort . . . to eliminate the distorting

25 Id. at 689.
26 See generally Ann K. Wooster, Annotation, Construction
and Application of Vienna Convention on Consular Relations
(VCCR), Requiring that Foreign Consulate Be Notified when One of
Its Nationals Is Arrested, 175 A.L.R. Fed. 243 (2002) (collecting
and reporting cases involving alleged violations of foreign
nationals’ Vienna Convention rights).
9 No. 20060197
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.”25
¶21 Benvenuto’s claims for ineffective assistance of trial,
post-plea, and appellate counsel do not satisfy the Strickland
standard. First, he has not demonstrated that his trial counsel
were in any way deficient. Benvenuto has not demonstrated that a
reasonable capital defense attorney would have investigated
Benvenuto’s citizenship despite Benvenuto’s own belief and
representations that he was a U.S. citizen. Benvenuto does not
claim that he informed counsel of his foreign birth, and even if
it were assumed he did, he does not claim that he informed them
that he could be a foreign national. Indeed, nothing in the
record suggests a reasonable defense attorney would have been
prompted to investigate whether Benvenuto was a foreign citizen.
¶22 Benvenuto’s accusations that his post-plea and
appellate counsel were deficient likewise fail. For the same
reasons his trial counsel were not ineffective for not knowing of
his foreign nationality, his post-plea and appellate counsel were
likewise not ineffective. Again, nothing in the record suggests
Benvenuto’s post-plea and appellate counsel knew anything more of
his citizenship status than his trial counsel knew. And even if
Benvenuto’s post-plea and appellate attorneys had discovered his
foreign citizenship, Benvenuto fails to point to any authority
upon which his attorneys could have relied at the relevant time
to withdraw his guilty pleas based on a violation of the Vienna
Convention. Benvenuto cites no case and we cannot find a case
prior to 1999 in which a defendant obtained substantive relief
because of a Vienna Convention violation.26 We therefore hold
that Benvenuto’s trial, post-plea, and appellate counsel rendered
reasonable, effective, and professional assistance.
B. Benvenuto Suffered No Prejudice
¶23 Even if an attorney’s performance was deficient, a
claim for ineffective assistance of counsel will fail if
counsel’s deficiencies had no effect on the outcome of the

27 Strickland, 466 U.S. at 691.
28 Id. at 691-92.
29 Id. at 693.
30 Id. at 694.
31 Id. at 699.
32 Parsons v. Barnes, 871 P.2d 516, 525 (Utah 1994) (quoting
Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
33 Smith v. Robbins, 528 U.S. 259, 285 (2000) (“[T]he proper
standard for evaluating [a petitioner’s] claim that appellate
counsel was ineffective in neglecting to file a merits brief is
that enunciated in Strickland v. Washington.”); Bruner v. Carver,
920 P.2d 1153, 1157 (Utah 1996).
No. 20060197 10
proceeding.27 Because “[t]he purpose of the Sixth Amendment
guarantee of counsel is to ensure that a defendant has the
assistance necessary to justify reliance on the outcome of the
proceeding . . . any deficiencies in counsel’s performance must
be prejudicial to the defense in order to constitute ineffective
assistance under the Constitution.”28 “It is not enough for the
defendant to show that the errors had some conceivable effect on
the outcome of the proceeding”;29 instead, “[t]he defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”30
And as with the first prong of the Strickland standard, there is
a “strong presumption” that the outcome of the particular
proceeding is reliable.31
¶24 When challenging a guilty plea on the grounds of
ineffective assistance of counsel, a petitioner must demonstrate
“‘a reasonable probability that, but for counsel’s errors he
. . . would not have pleaded guilty and would have insisted on
going to trial.’”32 When challenging the effectiveness of
appellate counsel, the standard is the same as for trial
counsel.33 Specifically, when considering an allegation that
appellate counsel
“was ineffective for failing to raise an
issue on appeal, we examine the merits of the
omitted issue. Failure to raise an issue
that is without merit ‘does not constitute

34 Carter v. Galetka, 2001 UT 96, ¶ 48, 44 P.3d 626 (quoting
Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir. 1995) (citations
omitted)).
35 Robbins, 528 U.S. at 285.
36 Hill, 474 U.S. at 59.
11 No. 20060197
constitutionally ineffective assistance of
counsel’ because the Sixth Amendment does not
require an attorney to raise every
nonfrivolous issue on appeal.”34
Thus, to demonstrate the ineffective assistance of appellate
counsel, a petitioner must
first show that his counsel was objectively
unreasonable in failing to find arguable
issues to appeal--that is, that counsel
unreasonably failed to discover nonfrivolous
issues and to file a merits brief raising
them. If [a petitioner] succeeds in such a
showing, he then has the burden of
demonstrating prejudice. That is, he must
show a reasonable probability that, but for
his counsel’s unreasonable failure to file a
merits brief, he would have prevailed on his
appeal.35
¶25 Benvenuto has failed to demonstrate that he was in any
way prejudiced by his trial or appellate counsel’s alleged
deficiencies. He fails to show that, absent those alleged
deficiencies, he would not have pleaded guilty, but would have
risked the death penalty and gone to trial; the trial court would
have allowed him to withdraw his pleas; or his appeal would have
been granted. The basis of Benvenuto’s failure to demonstrate
prejudice flows from his inability to show that, had he been told
of his Vienna Convention rights, there is a “reasonable
probability that . . . he . . . would not have pleaded guilty and
would have insisted on going to trial.”36 Instead, as the
district court correctly observed,
It appears that [Benvenuto] pleaded guilty
primarily because of the overwhelming
evidence of guilt possessed by [the State]
and because pleading guilty would essentially
insulate him from receiving a sentence of
death. [Benvenuto] has not shown that

37 Utah Code Ann. § 78-35a-107(1), (3) (2002).
38 Id. § 78-35a-107(2)(c).
39 Id. § 78-35a-107(2)(e).
No. 20060197 12
knowing he could contact the Uruguayan
consulate would have altered the strength of
[the State’s] case in any material way.
Moreover, [Benvenuto] provides the court with
no facts or argument demonstrating that had
he been properly notified of his rights under
the Vienna Convention and had members of the
Uruguayan consulate consulted with him, that
there is a reasonable probability that any
advice or assistance they could have provided
would have altered [Benvenuto’s] decision to
plead guilty and avoid exposure to the death
penalty. Without this showing, [Benvenuto]
cannot show that his trial or appellate
attorneys provided him with ineffective
assistance of counsel.
¶26 Because he cannot meet either prong of the Strickland
standard, Benvenuto’s claim of ineffective assistance of counsel
is without merit. His petition for post-conviction relief is
therefore procedurally barred under the PCRA.
III. BENVENUTO IS TIME BARRED FROM SEEKING
POST-CONVICTION RELIEF
¶27 Even if we were to find that Benvenuto’s claim is not
procedurally barred by the PCRA, he would still be required to
overcome its time bar. The PCRA provides that “[a] petitioner is
entitled to relief only if the petition [for post-conviction
relief] is filed within one year after the cause of action has
accrued” unless the court finds that the “interests of justice”
require it to excuse the late filing.37 In this case, Benvenuto
concedes that the statute of limitations expired for his post-
conviction claim on September 16, 2000, one year after “the last
day for filing a petition for writ of certiorari in the . . .
United States Supreme Court, if no petition for writ of
certiorari is filed,”38 although it arguably didn’t expire until
July 2003, one year after “the date on which [Benvenuto] knew or
should have known, in the exercise of reasonable diligence, of
evidentiary facts on which the petition is based,”39 if it is
assumed that his visit with the Uruguayan consulate is the date
on which his cause of action accrued. But in either case,

40 Adams v. State, 2005 UT 62, ¶ 16, 123 P.3d 400.
41 Case Concerning Avena and Other Mexican Nationals (Mex.
v. U.S.), 2004 I.C.J. 33 (March 31).
42 Id. at 34.
13 No. 20060197
Benvenuto missed the deadline for filing a petition for post-
conviction relief by years, filing his petition on July 15, 2005.
Thus, in order to have his petition considered, Benvenuto must
meet the “interests of justice” exception to the PCRA time bar.
To determine “what constitutes an exception in the ‘interests of
justice,’” we examine “both the meritoriousness of the . . .
claim and the reason for an untimely filing.”40 As we discuss
below, Benvenuto’s claim is not meritorious and the reason for
his untimely filing is unavailing.
A. Benvenuto’s Claims Lack Merit
¶28 Benvenuto relies on case law from the International
Court of Justice (the “ICJ”) to support his claim that law
enforcement officials violated his Vienna Convention rights when
they failed to notify him of his right to consular assistance at
the time of his arrest. With respect to such claims, the ICJ has
stated that
the duty upon detaining authorities to
[notify foreign nationals that they may
contact their consulates] arises once it is
realized that the person is a foreign
national, or once there are grounds to think
that the person is probably a foreign
national. Precisely when this may occur will
vary with circumstances. . . . [W]hen an
arrested person himself claims to be of
United States nationality, the realization by
the authorities that he is not in fact a
United States national, or grounds for that
realization, is likely to come somewhat later
in time.41
In addition, the ICJ has said that, where there is an indication
that an arrestee is a foreign national, this should cause “rapid
enquiry by the arresting authorities and the providing of
consular information ‘without delay.’”42
¶29 Benvenuto’s claims lack merit, first and foremost,
because he has failed to demonstrate that law enforcement

43 State v. Parsons, 781 P.2d 1275, 1278 (Utah 1989); see
Tollet v. Henderson 411 U.S. 258, 267 (1973) (stating that a
defendant who “has solemnly admitted in open court that he is in
(continued...)
No. 20060197 14
officials violated his notification rights under the Vienna
Convention. Benvenuto has not demonstrated that arresting
authorities were aware, or reasonably could have been aware, of
his foreign nationality. Benvenuto believed himself to be a U.S.
citizen and held himself out as such. Indeed, as the district
court noted, “Even had arresting authorities been required to
make an inquiry of [Benvenuto] with respect to his nationality,
he would have told them, as he did the trial judge at the change-
of-plea hearing, that he was a United States citizen.” Thus,
based on the ICJ’s standard, because law enforcement was not
aware that Benvenuto was, or could probably be, a foreign
national, they did not violate his Vienna Convention rights by
failing to provide him with consular information.
¶30 Additionally, Benvenuto’s claims lack merit because,
for the same reasons law enforcement authorities could not have
known that Benvenuto was a citizen of Uruguay, neither could his
trial and appellate attorneys have known of his foreign
nationality. Benvenuto cannot demonstrate that his trial counsel
was deficient in failing to inform him of his Vienna Convention
rights prior to his change-of-plea hearing or that his post-plea
counsel and appellate counsel were deficient in failing to argue
that he should have been allowed to withdraw his guilty pleas on
the basis of a violation of his Vienna Convention rights.
Moreover, even assuming counsel was deficient, Benvenuto has not
demonstrated that, but for that deficiency, he would not have
pleaded guilty, but would have risked the death penalty and gone
to trial; that his motion to withdraw his pleas would have been
accepted by the trial court; and that the outcome of his appeal
would have been different.
¶31 Finally, even if we assume that Benvenuto’s
notification rights under the Vienna Convention were violated,
his post-conviction claims are still without merit. Not only
does Benvenuto fail to show that there is a substantive remedy
for a violation of those rights, he waived claims based on
violations of the Vienna Convention with his guilty pleas. We
have explained that the “general rule applicable in criminal
proceedings, and the cases are legion, is that by pleading
guilty, the defendant is deemed to have admitted all of the
essential elements of the crime charged and thereby waives all
nonjurisdictional defects, including alleged pre-plea
constitutional violations.”43 We again agree with the district

43 (...continued)
fact guilty . . . may not thereafter raise independent claims
relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea”).
44 See United States v. Reyes-Platero, 224 F.3d 1112, 1115
(9th Cir. 2000) (“If a guilty plea cures a constitutional defect,
then it certainly cures a defect caused by failure to comply with
a treaty.”); see also United States v. Gonzales, 339 F.3d 725,
729 (8th Cir. 2003) (“[A] failure to advise a criminal defendant
of the right to consular contact [does] not constitute a
jurisdictional defect.”).
15 No. 20060197
court, which reasoned that, “if a knowing and voluntary guilty
plea waives pre-plea constitutional defects, . . . then it also
waives any treaty-based non-jurisdictional defects, such as
failing to notify an arrestee of his rights under the Vienna
Convention.”44 Because Benvenuto entered his guilty pleas
knowingly and voluntarily, he waived any claims based on
violation of his Vienna Convention notification rights.
¶32 We agree with the district court that Benvenuto has
“failed to present adequate factual evidence or legal authority
to support a conclusion that his post-conviction claims” have
merit, primarily because he cannot demonstrate that a violation
of his Vienna Convention rights even occurred. We also agree
that, even if Benvenuto’s notification rights under the Vienna
Convention were violated, his post-conviction claims are not
sufficiently meritorious to warrant an exception to the PCRA in
the “interests of justice.”
B. Benvenuto’s Reason for Filing an Untimely Petition
Is Inadequate
¶33 Benvenuto offers two reasons for having waited several
years after the expiration of the PCRA limitations period to file
his petition for post-conviction relief. First, he claims that
he lacked the resources to adequately research and file his
petition while in prison. Second, he claims that he could not
afford an attorney to assist him until November 2004.
¶34 We agree with the district court that neither of these
reasons justifies his late filing. The court correctly explained
that Benvenuto could have filed a petition himself or could have
requested that an attorney be appointed for him.
Even if it is true that [Benvenuto] lacked
the resources to adequately research his

45 See Utah Code Ann. § 78-35a-109.
No. 20060197 16
Vienna Convention violation claim, and
therefore needed the assistance of an
attorney, this state-of-affairs did not
prevent him from filing an initial petition
for post-conviction relief using Form 47 of
the Utah Rules of Civil Procedure and
subsequently amending it, if necessary,
pursuant to Rule 15. Moreover, the alleged
lack of sufficient legal resources at the
prison also does not explain why [Benvenuto]
could not have requested the court to appoint
an attorney pursuant to the PCRA to assist
him.[45] . . . On the contrary, [Benvenuto’s]
contention that he lacked adequate resources
to pursue his claim is the model reason why
[he] should have requested the appointment of
counsel rather than waiting until
November 16, 2004 to hire his own attorney.
It has been the court’s experience that
prison inmates routinely file non-frivolous
petitions for post-conviction relief and
request the appointment of counsel to assist
them in pursuing their claims.
Given the opportunities available to him, Benvenuto’s reasons for
not filing his petition for post-conviction relief until several
years after the limitations period expired are simply inadequate.
¶35 In sum, Benvenuto’s claims are without merit, and he
does not have an acceptable reason for the untimely filing of his
petition for post-conviction relief. Benvenuto therefore fails
to meet the requirements of the interests of justice exception to
the statute of limitations. As such, his claims are time barred
under the PCRA.
CONCLUSION
¶36 We affirm the district court’s order dismissing
Benvenuto’s petition for post-conviction relief. We hold that
his petition is barred by Utah Code section 78-35a-106(1)(c)
because he could have alleged a violation of his Vienna
Convention rights at trial or on appeal, but did not. Because
Benvenuto’s trial, post-plea, and appellate counsel rendered
effective assistance, his petition is not excepted from this
procedural bar. In addition, we hold that Benvenuto’s petition
is barred by Utah Code section 78-35a-107(1) because it was

17 No. 20060197
brought after the one-year limitations period had expired. We
find Benvenuto’s allegations to be without merit and his reason
for the untimely filing inadequate; as such, we do not except his
petition from this time bar in the interests of justice.
---
¶37 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.