Kell v. State
2012 UT 25
Utah2012Background
- Kell, convicted of murder and sentenced to death, filed a postconviction petition (PCRA) which was denied and affirmed on appeal.
- Four months after our ruling, Kell, pro se, moved under Utah Rule of Civil Procedure 60(b) to relieve from the district court’s dismissal of his PCRA petition.
- Kell alleged PCRA counsel was negligent, failed to investigate/raise claims, and failed to keep him informed about appeal status (rehearing or certiorari).
- The State moved to dismiss, arguing the case was no longer pending, Kell had no right to PCRA counsel, and his 60(b) motion was improper.
- The district court denied Kell’s 60(b) motion and his request for counsel, concluding the underlying PCRA matter was not pending and that relief was barred by the PCRA.
- We affirm the district court on alternate grounds: (i) the PCRA bars Kell’s 60(b) motion because it attempts to circumvent the PCRA’s exclusivity; and (ii) Kell has no statutory right to counsel for a 60(b) motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 60(b) can be used after appellate affirmation of the underlying judgment | Kell argues 60(b) relief remains possible to address counsel failures. | State argues 60(b) cannot correct a final appellate ruling once appeal is finished. | 60(b) relief may be possible only in unusual/exceptional circumstances; here it was barred by PCRA. |
| Whether Kell’s 60(b) motion was barred because the PCRA precludes successive petitions | Kell contends 60(b) is a pragmatic remedy for ineffective postconviction counsel. | PCRA prohibits relief on grounds that could have been raised in PCRA unless due to ineffective assistance. | PCRA bars the 60(b) motion as a substitute for an impermissible postconviction petition. |
| Whether Kell was entitled to appointed counsel to assist with the 60(b) motion | Kell asserts statutory/constitutional rights to counsel for postconviction matters include 60(b) motions. | PCRA does not extend counsel rights to a 60(b) motion; Menzies is distinguishable. | Kell has no statutory right to counsel for a 60(b) motion; constitutional rights not addressed due to preservation concerns. |
Key Cases Cited
- Menzies v. Galetka, 150 P.3d 480 (Utah 2006) (applies Rule 60(b) to postconviction context; cautions on its scope)
- Gonzalez v. Crosby, 545 U.S. 524 (U.S. 2005) (distinguishes genuine Rule 60(b) relief from creating new habeas claims)
- Julian v. State, 52 P.3d 1168 (Utah 2002) (PCRA replaced prior postconviction remedies with statutory remedy)
- Ford v. State, 199 P.3d 892 (Utah 2008) (context for appellate/postconviction interplay)
- Patterson v. Patterson, 266 P.3d 828 (Utah 2011) (interpretation of appellate/postconviction procedures)
- Cessna Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1444 (10th Cir. 1983) (federal analogy on Rule 60(b) and final judgments)