This opinion is subject to revision before final
publication in the Pacific Reporter
2023 UT 27
IN THE
SUPREME COURT OF THE STATE OF UTAH
TROY MICHAEL KELL,
Appellant,
v.
STATE OF UTAH,
Appellee.
No. 20180788
Heard March 11, 2020
Filed December 21, 2023
On Direct Appeal
Sixth District Court, Sanpete County
The Honorable Wallace A. Lee
No. 180600004
Attorneys:
Jonathan T. Nish, Salt Lake City, B. Kent Morgan, Woods Cross, Jon
M. Sands, Lindsey Layer, Alexandra H. LeClair, Eric Zuckerman,
Phoenix, AZ, for appellant
Sean D. Reyes, Att’y Gen., Andrew F. Peterson, Erin Riley, Tanner R.
Hafen, Aaron Murphy, Asst. Solics. Gen., Salt Lake City, for appellee
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN, JUSTICE HAGEN,
and JUSTICE POHLMAN joined. 1
_____________________________________________________________
1 After hearing the arguments in this appeal, Justice Lee and Justice
Himonas retired and did not participate in the consideration of the
case. Justice Hagen and Justice Pohlman, having reviewed the briefs
and listened to a recording of the oral arguments, substituted for
Justice Lee and Justice Himonas and participated fully in this decision.
KELL v. STATE
Opinion of the Court
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 Troy Kell, while serving a life sentence for murder, stabbed
another inmate to death in 1994. Kell was convicted of aggravated
murder, a capital offense, and sentenced to death. We affirmed his
conviction and sentence in 2002. 2
¶2 After his conviction was affirmed, Kell filed a petition for
post-conviction relief. The district court dismissed his petition, and in
2008 we affirmed that dismissal. 3
¶3 Kell later filed a motion under rule 60(b) of the Utah Rules of
Civil Procedure to set aside the dismissal of his petition for post-
conviction relief. The district court denied his motion, and in 2012 we
affirmed that denial. 4
¶4 Kell is now before this court for the fourth time. He appeals
the district court’s grant of summary judgment and dismissal of his
second petition for post-conviction relief, in which he proffered
evidence that was newly discovered in 2012. In that year, Kell’s
federal habeas corpus attorneys interviewed jurors from his trial and
discovered troubling facts. Three jurors remembered communicating
with the judge during sentencing deliberations without Kell or either
party’s counsel present, and one of those jurors remembered the judge
telling the jurors that it was Kell’s burden to convince the jury that his
life should be spared. This evidence is the basis of Kell’s petition now
at issue.
¶5 But there is a glaring problem with Kell’s petition. His
attorneys discovered this new evidence in 2012, yet Kell did not file
his petition in state court until 2018, over five years later. The Utah
Legislature has limited the ability of individuals to seek post-
conviction relief through the Post-Conviction Remedies Act (PCRA), 5
and we have adopted the PCRA’s limitations as part of our court’s
rules of procedure under rule 65C of the Utah Rules of Civil
Procedure. Under the PCRA and rule 65C, Kell’s current petition is
_____________________________________________________________
2 See State v. Kell, 2002 UT 106, ¶¶ 63–64, 61 P.3d 1019.
3 See Kell v. State, 2008 UT 62, ¶ 53, 194 P.3d 913, abrogated on other
grounds by McCloud v. State, 2021 UT 51, 496 P.3d 179.
4 See Kell v. State, 2012 UT 25, ¶¶ 37–38, 285 P.3d 1133.
5 UTAH CODE §§ 78B-9-101 to -503.
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Opinion of the Court
subject to dismissal based on time and procedural limitations.
Applying these limitations, the district court dismissed Kell’s petition.
¶6 Kell argues on appeal that the district court erred in granting
the State’s summary judgment motion and dismissing his petition
because (1) the PCRA’s limitations should not apply to preclude his
claim, since his delay in filing his petition resulted from the ineffective
assistance of initial post-conviction counsel; and (2) applying the
PCRA’s time and procedural bars to dismiss his petition violates his
rights under the Suspension Clause, 6 Due Process Clause, 7 and Open
Courts Clause 8 of the Utah Constitution.
¶7 The State counters that the district court correctly granted
summary judgment and dismissed Kell’s petition because Kell’s
arguments do not overcome his five-and-a-half-year delay in bringing
this claim after discovering the alleged improper communication
between the trial judge and jurors. We agree with the State and affirm.
Background
¶8 In July 1994, Kell, an inmate serving a life sentence at Central
Utah Correctional Facility, stabbed fellow inmate Lonnie Blackmon
sixty-seven times in the eyes, face, neck, back, and chest until he bled
to death. 9 Kell is a known white supremacist with a history of “race-
related altercations,” and Blackmon was African American. 10 Kell’s
murder of Blackmon was recorded on video. 11 Kell was convicted of
aggravated murder by a unanimous jury and sentenced to death. 12 We
affirmed Kell’s conviction and sentence in 2002. 13
¶9 Kell has sought relief from his sentence in state and federal
courts for over two decades. In 2003, he filed his first petition for post-
_____________________________________________________________
6 See UTAH CONST. art. I, § 5.
7 See id. art. I, § 7.
8 See id. art. I, § 11.
9 State v. Kell, 2002 UT 106, ¶¶ 1, 2, 5–6, 61 P.3d 1019.
10 Id. ¶ 2.
11 Id. ¶ 29.
12 Id. ¶¶ 1, 9.
13 Id. ¶ 64. For details about Kell’s trial for aggravated murder, see
id. ¶¶ 7–9.
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Opinion of the Court
conviction relief in state court. 14 The district court dismissed his
petition, and in 2008 we upheld that decision. 15 In 2009, “Kell,
representing himself, filed a 60(b) motion, asking the district court to
relieve him from its earlier dismissal of his petition for postconviction
relief” on the ground that he had been denied the right to effective
assistance of post-conviction counsel. 16 The district court denied Kell’s
rule 60(b) motion, and in 2012 this court affirmed the decision on the
ground that Kell could not use a 60(b) motion as a work-around of the
PCRA’s limitations. 17
¶10 Kell was appointed federal habeas counsel in 2007, and that
counsel has represented him to this day. In 2009, Kell filed his initial
habeas corpus petition in federal court. He then successfully sought a
stay of federal proceedings while the rule 60(b) motion proceedings
continued in state court.
¶11 In May 2012, Kell’s federal habeas counsel spoke with jurors
and obtained signed declarations as part of the investigation for his
federal habeas corpus petition. Through this investigation, Kell’s
counsel discovered that three jurors remembered the judge entering
the jury deliberations and speaking with the jury, and one of those
jurors remembered the judge telling them that “Kell’s attorneys had
to show [the jury] that Kell’s life should be spared.”
¶12 This new evidence was first raised in court when, after his
federal proceedings resumed, Kell filed an amended federal habeas
petition on January 14, 2013. His amended petition included a new
claim based on the juror declarations. Specifically, Kell alleged that
“the judge in [his] criminal trial improperly instructed the jury during
its deliberations without notice to either party” and that “this
instruction unconstitutionally shifted the burden of determining a
death sentence from the prosecution to the defense.”
¶13 Kell and the State stipulated to a case management schedule
in the federal proceedings. As part of that schedule, the parties
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14 Kell v. State, 2008 UT 62, ¶ 4, 194 P.3d 913, abrogated on other
grounds by McCloud v. State, 2021 UT 51, 496 P.3d 179.
15 Id. ¶ 53.
16 Kell v. State, 2012 UT 25, ¶ 3, 285 P.3d 1133.
17 Id. ¶ 37 (“We conclude that in this case, Mr. Kell’s claims were
barred by the PCRA and therefore could not be brought under rule
60(b).”).
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Opinion of the Court
“agreed to address discovery and [hold] an evidentiary hearing prior
to addressing other issues.” The discovery and evidentiary hearing
process continued through June 2017. In August 2017, after having
resolved discovery and evidentiary issues, Kell sought a “Rhines stay”
in his federal proceedings to exhaust in state court the new claim
based on the juror declarations. 18 The district court granted the Rhines
stay, finding that Kell had good cause for failing to exhaust his claim
in state court, that his claim was potentially meritorious, and that he
had not engaged in intentional delay.
¶14 On January 16, 2018, once the Rhines stay was in place and
federal counsel had received permission to represent Kell at the state
level, Kell filed a petition for post-conviction relief in state court. In
the petition, Kell claimed, based on the evidence uncovered by his
federal counsel in 2012, that his sentence should be overturned
because the trial court committed prejudicial error when it gave an
unconstitutional supplemental jury instruction outside the presence
of Kell and his counsel.
¶15 The State moved for summary judgment on Kell’s petition,
asserting that it was subject to the PCRA’s time and procedural bars.
Under the PCRA’s time bar, “[a] petitioner is entitled to relief only if
the petition is filed within one year after the day on which the cause
of action has accrued.” 19 And claims based on new evidence accrue on
“the date on which petitioner knew or should have known, in the
exercise of reasonable diligence, of evidentiary facts on which the
petition is based.” 20 Under the PCRA’s procedural bar, “[a] petitioner
is not eligible for relief . . . upon any ground that . . . 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 postconviction
relief.” 21
¶16 The district court concluded that Kell’s claim accrued either
in 2012—when he had actual knowledge of the evidence on which his
_____________________________________________________________
18 Under Rhines v. Weber, a federal district court may stay habeas
proceedings when it “determines there was good cause for the
petitioner’s failure to exhaust his claims first in state court.” 544 U.S.
269, 277 (2005).
19 UTAH CODE § 78B-9-107(1).
20 Id. § 78B-9-107(2)(e).
21 Id. § 78B-9-106(1)(d).
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KELL v. STATE
Opinion of the Court
claim is based—or in 2002—when he reasonably could have acquired
the evidence after his conviction was affirmed on direct appeal. So,
the court concluded that, whether the claim accrued in 2002 or 2012,
over a year had passed, which triggered the time bar. The district
court also determined that the procedural bar applied because, as Kell
conceded, Kell could have but did not bring this claim as part of his
initial petition for post-conviction relief. Accordingly, the district
court granted the State’s motion for summary judgment and
dismissed Kell’s petition.
¶17 Kell appealed the district court’s decision to this court. In his
original briefing, he challenged the district court’s grant of summary
judgment and dismissal of his petition, arguing that (1) his delay in
filing the petition should be excused because it resulted from the
ineffective assistance of his initial post-conviction counsel and at the
time he had a statutory right to effective assistance of post-conviction
counsel, (2) his noncompliance with the PCRA should be excused
under the “egregious injustice” exception to the PCRA referenced in
Gardner v. State 22 and Winward v. State, 23 and (3) the PCRA’s
requirements should be bypassed under the “traditional common law
authority over collateral proceedings.”
¶18 While Kell’s appeal was pending, we issued our opinion in
Patterson v. State, which identified the source and scope of Utah courts’
constitutional authority to issue writs of habeas corpus and clarified
the interaction between that constitutional authority and the PCRA. 24
Relevant to Kell’s appeal, we held in Patterson that “there is no
egregious injustice exception to the time bars of the PCRA or rule
65C” 25 and that we can hear a case otherwise barred by the PCRA only
“when failure to do so would violate a petitioner’s constitutional
rights.” 26 Because of this clarification of the law, we requested
supplemental briefing from both parties on whether affirming the
district court’s grant of summary judgment and dismissal of Kell’s
petition would violate his rights under the Utah Constitution. In his
supplemental briefing, Kell argued that applying the PCRA’s time
_____________________________________________________________
22 2010 UT 46, 234 P.3d 1115.
23 2012 UT 85, 293 P.3d 259.
24 See 2021 UT 52, ¶¶ 76–194, 504 P.3d 92.
25 Id. ¶ 71.
26 Id. ¶ 194.
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Opinion of the Court
and procedural bars to his claim would violate his constitutional
rights under the Suspension Clause, Due Process Clause, and Open
Courts Clause of the Utah Constitution.
¶19 We have appellate jurisdiction under Utah Code section 78A-
3-102(3)(i).
Standard of Review
¶20 Kell appeals the district court’s grant of the State’s motion for
summary judgment and dismissal of his petition for post-conviction
relief. “We review a district court’s grant of summary judgment for
correctness.” 27 And we likewise “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.” 28
Analysis
¶21 Kell argues that the district court erred by applying the
PCRA’s time and procedural bars to dismiss his petition for post-
conviction relief. Petitioners are entitled to relief under the PCRA only
if they file a petition “within one year after the day on which the cause
of action has accrued.” 29 And claims based on new evidence accrue on
“the date on which petitioner knew or should have known, in the
exercise of reasonable diligence, of evidentiary facts on which the
petition is based.” 30 We refer to this limitation as the time bar.
¶22 In addition, petitioners are not entitled to relief under the
PCRA “upon any ground that . . . 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 postconviction relief.” 31 We refer
to this limitation as the procedural bar.
¶23 Although Kell does not dispute that his petition would
ordinarily be subject to both the PCRA’s time and procedural bars, he
nevertheless argues that the district court erred in granting the State’s
motion for summary judgment and dismissing his petition for post-
_____________________________________________________________
27 Patterson v. State, 2021 UT 52, ¶ 27, 504 P.3d 92.
28 Gardner v. State, 2010 UT 46, ¶ 55, 234 P.3d 1115 (cleaned up).
29 UTAH CODE § 78B-9-107(1).
30 Id. § 78B-9-107(2)(e).
31 Id. § 78B-9-106(1)(d).
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KELL v. STATE
Opinion of the Court
conviction relief. He argues the court erred because (1) the PCRA’s
time and procedural bars should not apply to his claim, because his
initial post-conviction counsel was ineffective in failing to uncover
and raise the evidence that provides the basis for his new claim; and
(2) precluding his petition based on the PCRA’s time and procedural
bars would violate his rights under the Suspension Clause, Due
Process Clause, and Open Courts Clause of the Utah Constitution.
¶24 Kell first argues that his petition should have survived
despite the PCRA’s time and procedural bars because he received
ineffective assistance of post-conviction counsel at a time when this
court recognized a right to effective assistance of post-conviction
counsel under Menzies v. Galetka. 32 The State counters that (1) under
Menzies, the proper procedure to obtain relief for ineffective assistance
of post-conviction counsel is through a rule 60(b) motion; (2) this court
already rejected Kell’s rule 60(b) motion claiming relief under
Menzies; 33 and (3) Kell “ignores that it was current counsel, not [initial
post-conviction] counsel, who discovered, delayed, and defaulted the
claim many years after [Kell’s initial post-conviction] counsel’s
representation concluded.”
¶25 We agree with the State that Kell has not shown that any
shortcoming of his initial post-conviction counsel excuses the delay in
bringing the petition at issue today. The evidence that is the root of
this petition was discovered by federal habeas counsel—and shared
with Kell—in 2012. Yet Kell did not file the petition until 2018. Kell
cannot wait more than five years after receiving actual knowledge of
the evidence supporting his petition to pursue relief and then ask this
court to excuse the lapsing of the time bar based on the performance
of counsel who ceased representing him years before the discovery of
the relevant evidence.
¶26 Next, Kell argues that application of the PCRA’s time and
procedural bars to his case violates his rights under the Suspension
Clause, Due Process Clause, and Open Courts Clause of the Utah
Constitution. His arguments under all three clauses rely on similar
premises. First, he contends that application of the time and
procedural bars by the court in his case without any flexibility or
discretion would “result in a suspension of the writ.” Second, he
argues that “strict application of time or procedural bars, in the
_____________________________________________________________
32 2006 UT 81, 150 P.3d 480.
33 (Citing Kell v. State, 2012 UT 25, 285 P.3d 1133.)
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Opinion of the Court
absence of some safety valve, may lead to petitioners, like Mr. Kell,
being unable to vindicate their substantive rights at all,” violating his
right to due process under the law. Finally, according to Kell, “to
comply with the Open Courts Clause, any statute of limitations must
include an ‘escape valve.’”
¶27 So Kell essentially contends that applying a strict statute of
limitations without any safety valve to habeas corpus petitions
violates these three clauses. But his arguments fall short because he
has not demonstrated why failure to apply a safety valve in his case
violates the Utah Constitution. We acknowledged in Patterson v. State
that there may be a case where strict application of the PCRA’s time
and procedural bars could violate a petitioner’s constitutional rights. 34
This is not such a case. Kell has the burden to show “that failure to
entertain his petition violates his constitutional rights.” 35 Because he
has not demonstrated that dismissing a petition for post-conviction
relief filed five years after the discovery of the evidence on which the
petition is based violates the Utah Constitution, he has not satisfied
this burden. 36
_____________________________________________________________
34 2021 UT 52, ¶ 212, 504 P.3d 92 (“[W]e leave open the possibility
that another petitioner, on another set of facts, might be able to
demonstrate that the application of the time bars in the PCRA and rule
65C run afoul of the Suspension Clause, or some other provision, of
the Utah Constitution.”).
35 See id. ¶ 218.
36 In his principal briefing on appeal, Kell raised two additional
arguments. First, he argued the merits of his petition, asserting that
his Fifth and Fourteenth Amendment rights were violated when the
trial judge gave jurors a supplemental instruction during penalty
phase deliberations. Second, relying principally on Julian v. State, 966
P.2d 249 (Utah 1998), he claimed that the 2008 amendments to the
PCRA are unconstitutional because “the legislature has no authority
to diminish or restrict” the court’s writ power. The State objected to
Kell’s arguments, contending that the former is not properly before
this court and that the latter was inadequately briefed.
We summarily reject both of Kell’s arguments. As to the former,
we agree with the State that because the district court granted
summary judgment on purely procedural grounds and did not
address the merits of Kell’s petition, the merits of Kell’s claim are not
(continued . . .)
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KELL v. STATE
Opinion of the Court
I. Kell’s Initial Post-Conviction Counsel’s Deficient Performance
Cannot Excuse Kell’s Delay in Filing This Petition
¶28 Kell argues that his delay in filing this petition should be
excused because his initial post-conviction counsel was ineffective in
failing to interview the jurors in his case, as his federal habeas counsel
later did. He relies on our decision in Menzies v. Galetka to contend that
“[a]t the time of his initial post-conviction proceedings, Mr. Kell had
a statutory right to the effective assistance of his post-conviction
counsel.” 37 So, Kell continues, since he had a right to effective
assistance of post-conviction counsel at the time his initial petition for
post-conviction relief was filed, he must have a “mechanism to
enforce that right.”
¶29 The State counters that the performance of Kell’s initial post-
conviction counsel cannot excuse his delayed filing of the petition
now before the court, because it was federal habeas counsel who, in
2012, discovered the evidence on which the underlying claim is based,
and it was federal habeas counsel who waited over five years to seek
relief for Kell in state court. Kell and the State also disagree on other
points related to Kell’s ineffective assistance claim: (1) whether the
petition had to be filed before 2008, when the Utah Legislature
amended the PCRA to eliminate any right to effective assistance of
post-conviction counsel; (2) whether, to obtain relief under Menzies, a
petitioner must show that post-conviction counsel “completely
defaulted” the case; and (3) whether a claim based on ineffective
assistance of post-conviction counsel is limited to being brought as a
rule 60(b) motion or can be brought in a successive petition for post-
conviction relief. 38 But we need not address these three issues, because
_____________________________________________________________
before us. And as to Kell’s challenge to the 2008 amendments, even
assuming the argument was adequately briefed, it fails because we
recently analyzed and rejected a nearly identical argument in
Patterson. See 2021 UT 52, ¶¶ 196–204 (rejecting Patterson’s argument
“that Julian dictates that any statute of limitations on our writ
authority” is unconstitutional). Because Kell’s challenge to the 2008
amendments does not meaningfully go beyond Patterson’s, we
decline to revisit the issue.
37 (Citing Menzies v. Galetka, 2006 UT 81, ¶ 84, 150 P.3d 480.)
38 The district court denied Kell’s claim of ineffective assistance of
post-conviction counsel on this basis, holding that “the proper
(continued . . .)
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Opinion of the Court
even if we agreed with Kell on each of them, we would still conclude
that the district court correctly dismissed Kell’s petition.
¶30 We agree with the State that any defects in Kell’s initial post-
conviction representation cannot compensate for his failure to bring
his current claim within one year of discovering the facts supporting
it. Kell alleges that his previous post-conviction counsel was
ineffective—not his federal habeas counsel, who have represented
him since 2007. And it is Kell’s federal habeas counsel who, in 2012,
interviewed jurors and discovered the evidence that is the crux of this
petition. So even if we excused Kell’s failure to bring this claim in his
initial post-conviction petition on the ground of ineffective assistance
of counsel, Kell has not given a convincing reason for waiting over a
year—indeed, over five years—after the discovery of the alleged
violation to bring his current claim. 39 In other words, even if the
PCRA’s procedural bar should not apply to Kell’s petition, the petition
would still be subject to the PCRA’s time bar.
¶31 Kell has not tied the performance of his initial post-conviction
counsel to the relief he now requests. So even if we were to determine
that Kell’s right to effective assistance of post-conviction counsel was
violated and that he could bring his claim through a successive
petition for post-conviction relief, that would still not excuse his five-
year delay in pursuing relief.
II. Kell Has Not Demonstrated that Application of the Time and
Procedural Bars to This Petition Violates His Constitutional Rights
¶32 Under the current version of rule 65C, we can hear a case
barred by the PCRA only “when failure to do so would violate a
petitioner’s constitutional rights.” 40 Kell argues that application of the
time and procedural bars to his petition violates his rights under the
Suspension Clause, Due Process Clause, and Open Courts Clause of
the Utah Constitution. But Kell’s constitutional arguments suffer from
the same infirmity as his ineffective assistance of post-conviction
_____________________________________________________________
procedure is to raise his argument in a rule 60(b) motion in his original
case and not in a subsequent petition.” We do not reach this question
and instead reject Kell’s argument on the alternative basis that he has
not tied the alleged ineffective assistance of post-conviction counsel to
his current delay in seeking relief.
39 See infra ¶¶ 37–38.
40 Patterson v. State, 2021 UT 52, ¶ 194, 504 P.3d 92.
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counsel argument. In his briefing, Kell has not offered a compelling
justification for his decision to wait five years after discovering the
new evidence to file this petition. Kell’s constitutional arguments all
point to hypothetical ways in which strict application of the PCRA’s
statutes of limitations could potentially violate a petitioner’s
constitutional rights, but he has not met his burden of showing that
his rights have been violated based on the facts of this case.
¶33 First, Kell contends that application of the PCRA’s time and
procedural bars to his petition violates the Suspension Clause, which
states, “The privilege of the writ of habeas corpus shall not be
suspended, unless, in case of rebellion or invasion, the public safety
requires it.” 41 We have intimated that “the Suspension Clause
contemplates measures that ‘stay,’ ‘cause to cease,’ or ‘interrupt’ the
ability of a prisoner to challenge her detention.” 42 According to Kell,
“if [he] has presented a meritorious claim of a constitutional violation
on which he would otherwise obtain relief[,] but the Court is without
the authority to consider the merits of that claim due to the time and
procedural bars of rule 65C and the PCRA, then application of the bars
works a suspension of the writ in this case.”
¶34 Essentially, Kell argues that if the time and procedural bars
of rule 65C and the PCRA prevent this court from exercising flexibility
in hearing habeas claims, then they work a suspension of the writ of
habeas corpus. This argument tracks Patterson’s Suspension Clause
argument in Patterson v. State. There, we noted decisions from the
First, 43 Tenth, 44 and Eleventh Circuits, 45 as well as our sister states
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41 UTAH CONST. art. I, § 5.
42 See Patterson, 2021 UT 52, ¶ 209.
43 See Delaney v. Matesanz, 264 F.3d 7, 13 (1st Cir. 2001) (“[T]he one-
year limitation period . . . as embellished by the tolling provision . . .
does not suspend the writ because, when read in tandem, the[]
provisions neither gut the writ of habeas corpus nor render it
impuissant to test the legality of a prisoner’s detention.”).
44 See Miller v. Marr, 141 F.3d 976, 977–78 (10th Cir. 1998) (rejecting
petitioner’s contention that, in his case, “the one-year limitation on
filing a first habeas petition violated the Suspension Clause”).
45 See Wyzykowski v. Dep’t of Corr., 226 F.3d 1213, 1217 (11th Cir.
2000) (“[W]e readily conclude that, as a general matter, the . . .
(continued . . .)
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Oregon, 46 Colorado, 47 and Pennsylvania, 48 in which the courts held
that application of a statute of limitations to habeas claims did not
amount to a suspension of the writ of habeas corpus. 49 Reasoning that
this caselaw caused us to pause “before we would presume to declare
that any statute of limitations violates the Suspension Clause,” 50 we
held that Patterson “ha[d] not convinced us . . . that the application of
the time bar to Patterson’s petition violate[d] the Suspension
Clause.” 51
¶35 Kell responds to the examples cited in Patterson by arguing
that those courts were all considering statutes of limitations that
included some type of “safety valve.” But he overlooks that the
holding in Patterson—that we may hear a claim even if it is barred
under the PCRA “when failure to do so would violate a petitioner’s
constitutional rights”—is itself a safety valve. 52 Kell bases his
Suspension Clause argument on the idea that this court has no ability
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limitation period . . . is not an unconstitutional suspension of the writ
of habeas corpus.”).
46 See Bartz v. State, 839 P.2d 217, 224 (Or. 1992), superseded by statute
as stated in Ingle v. Matteucci, 537 P.3d 895 (Or. 2023) (concluding that
“so long as” habeas corpus procedural limitations “are reasonable for
persons who seek redress[,] . . . they do not offend the state
constitutional ban on suspending habeas corpus”).
47 See People v. Wiedemer, 852 P.2d 424, 435 (Colo. 1993) (en banc)
(holding that statute’s time limitations did “not violate the
constitutional prohibition against suspending the right to the writ of
habeas corpus”).
48 See Commonwealth v. Zuniga, 772 A.2d 1028, 1032 (Pa. Super. Ct.
2001) (determining that “the time limitations of the PCRA d[id] not
cause any suspension of the right of habeas corpus” because petitioner
“had the opportunity to exercise his right to petition for writ of habeas
corpus, but simply failed to do so in a timely fashion”).
49 Patterson, 2021 UT 52, ¶¶ 210–11.
50 Id. ¶ 211.
51 Id. ¶ 205.
52 Id. ¶ 194 (“[W]e can only hear a time-barred case, like
Patterson’s, when failure to do so would violate a petitioner’s
constitutional rights.”).
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Opinion of the Court
to consider otherwise time-barred meritorious habeas claims in
exceptional cases, yet he does not acknowledge that the holding in
Patterson provides that flexibility.
¶36 Kell’s argument falls short because he does not show that
application of the PCRA’s time and procedural bars to his claim in this
petition amounts to a suspension of the writ of habeas corpus. Kell
argues that strict application of a statute of limitations to habeas
claims violates the Suspension Clause when “some such fact is shown
that it would be unconscionable not to re-examine the conviction” 53
or when application of a statute of limitations results in “fundamental
unfairness.” 54 But he has not demonstrated why it would be
unconscionable or fundamentally unfair to bar a claim he could have
brought—but chose not to—for five years.
¶37 And while Kell contends that “application of the time and
procedural bars pursuant to rule 65C and the PCRA, without an
escape valve, would violate [his] rights under the Suspension Clause,”
he has not shown that it is the absence of an “escape valve” that
prevents consideration of his claim. Kell has offered various
justifications for not filing this petition in state court until years after
uncovering the evidence supporting his claim. First, he offers a
practical justification, contending that the delay should be overlooked
because his federal habeas attorneys were following a federal case
management plan and waited to proceed in state court until they
reached the appropriate time in the federal case to seek a stay and
received the necessary funding. Second, he argues that his petition
should be addressed on the merits despite his years-long filing delay
because, even if he had “filed a petition including this claim in 2013,
the court almost certainly would have found that it had already been
defaulted.”
¶38 Kell’s justifications for delay do not suggest that a lack of
flexibility in the PCRA’s time and procedural bars prevented him
from filing this petition at his first opportunity. Petitioners are, of
course, not permitted to ignore a state statute of limitations simply
because they are simultaneously proceeding on the claim in federal
court. And the possibility that Kell’s initial post-conviction counsel
may have allowed the PCRA’s bars to lapse did not give Kell license
to knowingly allow them to lapse. At the latest, Kell’s claim was
_____________________________________________________________
53 (Quoting Brown v. Turner, 440 P.2d 968, 969 (Utah 1968).)
54 (Quoting Hurst v. Cook, 777 P.2d 1029, 1034–35 (Utah 1989).)
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Cite as: 2023 UT 27
Opinion of the Court
available to him in 2012—when he obtained actual knowledge of the
newly discovered evidence. By waiting five years, without
demonstrating that the inflexibility of the PCRA somehow prevented
him from filing earlier, the strength of Kell’s arguments has only
waned. Because Kell has not shown that the PCRA’s time and
procedural bars interrupted his ability to challenge his detention, we
hold that their application does not violate the Suspension Clause. 55
¶39 Kell’s arguments under the Due Process Clause and the Open
Courts Clause of the Utah Constitution suffer from the same
shortcomings as those under the Suspension Clause. Kell argues that
“strict application of time or procedural bars, in the absence of some
safety valve, may lead to petitioners, like Mr. Kell, being unable to
vindicate their substantive rights at all.” And similarly, he contends
that “[u]nder the Open Courts Clause, neither the legislature nor the
courts may implement limitations on a petitioner’s ability to obtain
review of his claims that are so inflexible as to effectively close the
courthouse doors to a petitioner.” Again, Kell points to the potential
constitutional problems with strict statutes of limitations for habeas
claims generally, but he has not cleared the necessary hurdle of
showing how application of the time and procedural bars to his claim
violates these clauses when he chose to wait over five years to seek
relief.
¶40 Kell has not shown that the time and procedural bars left him
unable to vindicate his substantive rights. Nor has he shown that the
PCRA’s limitations were so inflexible as to effectively close the
courthouse doors before he could get through them. Even if we were
to take the view most charitable to Kell—by assuming that Kell’s claim
could not have been raised in his previous petition for post-conviction
relief and that the claim accrued in 2012 rather than an earlier date—
Kell still could not show that the application of the PCRA’s time and
procedural bars violates his constitutional rights.
¶41 The inflexibility of the PCRA’s time and procedural bars
could conceivably prove constitutionally infirm in a different case. But
Kell has not met his burden of showing that the dismissal of a claim
he sat on for five years violates the Suspension, Due Process, or Open
Courts Clauses of the Utah Constitution.
Conclusion
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55 See Patterson, 2021 UT 52, ¶ 205.
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KELL v. STATE
Opinion of the Court
¶42 Kell’s arguments all suffer from the same infirmity—they do
not excuse his five-year delay in filing this petition after discovering
the proverbial smoking gun. Kell’s ineffective assistance of initial
post-conviction counsel claim does not account for his federal habeas
counsel’s five-year delay in filing this petition. And the district court’s
dismissal of Kell’s claim does not mean that our court lacks all
flexibility in forgiving petitioners’ failure to meet the PCRA’s time and
procedural requirements if the limitations violate their constitutional
rights. Rather, it merely reflects the fact that, in this case, no such
violation has occurred. Because Kell has not demonstrated how the
district court’s dismissal of a claim he waited five years to bring
violates his constitutional rights, we affirm.
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