Andrews v. Shulsen
773 P.2d 832
Utah
1988
Check Treatment

*1 832

HOWE, Associate Chief Justice: ANDREWS, Plaintiff appeals from William Andrews corpus denial of his he filed in postconviction relief which pursuant to Utah Rule of the court below SHULSEN, Warden Kenneth Prison, Defendant Utah State codefendants, Pierre Plaintiff and two Appellee. formerly as Dale S. Selby, Dale known 880024. No. Roberts, charged in Pierre, were and Keith County in court of the district Weber degree murder three counts of first with 27, Oct. aggravated robbery and two counts of killings persons in the course of three Rehearing Denied June Ogden, Shop the Hi-Fi robbery of a at Selby found Plaintiff and were Utah. all of those counts and were guilty on counts. to death on the murder sentenced aggravated only of Roberts was convicted prison to a robbery and was sentenced appealed their Selby and Andrews term. and sentences to this Court. convictions Pierre, 572 P.2d affirmed. State v. denied, reh’g Andrews, (Utah 1977), reh’g P.2d 709 1978). (Utah The United States P.2d 857 Supreme Court denied certiorari both in 1978. Pierre and Andrews v. cases Utah, month, Selby following Andrews and postconviction relief

filed Lake the district court of Salt petitions on the That court dismissed the had ground that all of the issues raised or could have been were barred appeal and thus On any postconviction from review. Court, affirmed after a review to this Morris, P.2d merits. Pierre v. Andrews v. (Utah 1980). Again, the Unit- Supreme Court denied certiorari. ed States Morris, 449 U.S. and Andrews v. 254, 66 L.Ed.2d 120 month, following Selby and Andrews Tesch, City, Timothy K. Joseph E. Park filed for federal habeas Denton, Ford, Seattle, Robert B. for the Dis- States District Court United Greiner, Denver, Colo., for City, Gordon G. That court trict of Central Division. appellant. plaintiff and An- proceedings and ordered stayed the Wilkinson, Thompson, to return to this Court to drews David L. Dave possible relief under our decision City, appellee. seek Lake for defendant and Salt *2 capital just cluding another case which had then we that Andrews could or should have Wood, decided. v. presented raised the issues either on appeal 1981), 988, cert. 459 U.S. 103 S.Ct. prior postconviction or in petitions. The 341, (1982). again We de judge district petition concluded that the is relief, nied both any holding postconviction “an abuse of pro- relief and that our decision in Wood was not retroac cedurally appeals. defective.” Plaintiff tive. Andrews and Selby v. 677 We do not reach peti- the merits of the 81, (Utah 1983). Thereupon, An filing governed by tion. Its Utah Rule pursuit drews and resumed of their of Subsection of corpus petition, federal habeas but the fed that rule in part: states request eral district court denied them all complaint shall further state that the Shulsen, ed relief. Andrews v. legality constitutionality or of his com- (D.Utah F.Supp. 1984); Selby v. Shul mitment or already confinement not has sen, F.Supp. (D.Utah 1984). adjudged prior been in a United States Court of for the or proceeding; other similar and if the Tenth Circuit affirmed those denials at 802 complainant shall prior have instituted (10th F.2d 1256 and 802 F.2d 1282 Cir. proceedings court, similar any in state or 1986). The Supreme United States federal, within state of he shall denied in Selby’s certiorari case on so complaint, his shall a attach 27,1987. Shulsen, 1033, U.S. copy any pleading filed in such court 1964, 95 L.Ed.2d 536 He by complaint, him to his and shall set was executed at the Utah State Prison on forth the reasons for the denial of relief August petition 1987. Andrews’ in such other court. In such if it is certiorari by was denied the United States apparent to the pro- court in which the Supreme Court on February 1988. An ceeding under this rule is instituted that — Shulsen, U.S. -, drews v. legality or constitutionality of his confinement already adjudged has been On October approximately four prior in such proceedings, the court shall months before the United States complaint, giving forthwith dismiss such certiorari, Court denied Andrews filed the by written notice thereof mail to the com- petition postconviction instant relief in plainant, proceedings and no further the district court of He shall complaint. be had on such alleged that he was entitled to a writ dis- Further, appli- subsection of that rule is charging him from his sentence of death cable here: “All claims of the any denial of because the trial court committed constitu- complainant’s rights constitutional shall tional error give when it did jury not a postconviction be raised in the proceeding lesser included offense instruction on sec- brought under this rule and not be degree ond felony alleged murder. He also raised in subsequent proceeding another that this Court committed constitutional er- except good cause shown therein.” ror when it appeal failed on direct to ad- by We have read the briefs filed counsel sponte dress sua the trial court’s failure to parties for both and have heard give extended such an explained instruction. He argument oral from them. We that these conclude issues had not raised in his “good that cause” has not appeal by direct or in been shown postconviction his earlier plaintiff as why to the claims because the he now federal and makes were not state court decisions on which his claim is prior postconviction proceedings. based had not been decided and were not reasonably are in accord available or with decisions of foreseeable at federal times, indigent those he courts raising was and unable which hold that to issues a choice, retain counsel of his that his court- were not but could have been appointed counsel had failed effectively previous petition, except to raised where present research arguments. good shown, these cause is constitutes an abuse The district court denied the con- requires of the writ and dismissal of the extent that we process. To the 476 U.S. and due Wainwright, petition. Straight vindicating community values insist on 2004, 2005, L.Ed.2d 1132, 1133, 106 life, must J., concurring); community decisions to take An 200, 206, 104 willing expend resources whatever S.Ct. be Dugger, tone process required guarantee are Woo 962, 964, 79 L.Ed.2d 379-80, 104 bounds. and within constitutional is fair Hutchins, 464 U.S. dard v. *3 541, 543-45 753-54, L.Ed.2d suggestion no in this case There is J., concurring). (1984) claims, I withholding of and view deliberate procedural default as excusable counsel’s is affirmed. of the The dismissal Indeed, neglect under the circumstances. J., I inclined to STEWART, penalty death am HALL, C.J., and neglect, defendant think such to which the concur. contributed, must be himself cannot have ZIMMERMAN, J., concurs petition. I the excused. would review result. DURHAM, (dissenting): Justice majority’s decision not

I from the dissent I am petition. of this reach the merits “good cause” for that sufficient

persuaded fact that is established

review right to a less- regarding Andrews’

the law instruction at his trial er included offense WEBB, and Roland evolutionary in an unsettled and has been part period during at least and this see his conviction GENERAL, INC., corpora- between a Utah R.O.A. Alabama, 447 U.S. individually; Beck tion; Reagan, William v. Bak- State Adams, individually; and er, 671 P.2d 152 Hall, individually, Douglas T. Defen- Norton, State v. Respondents. dants and Hansen, No. 880197-CA. strong possibility that Andrews was included offense instruc- entitled to a lesser mistakenly sen- may have

tion and of its tenced to death as a result absence. request the instruction

That the failure issue and the failure to raise the

at trial procedural defaults

until now constitute application of rule ordinary

under

65B(i)(2) change my does not view. penalty the death possibility

The mere mistake, imposed by

may have been that mis- carried out because of be

take, constitute my sufficient in view to under the rule.

“good cause” for review devastating impact on acknowledge

I delays required for metic-

all concerned of time-consuming review of the

ulous and imposes the the State

fairness with which against that terri- penalty.

death Balanced cost, however, more must be the even

ble a defendant’s life possibility that

terrible fundamental fairness

may be taken without