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Utah Supreme Court: Dismissal of Second Post-Conviction Petition Improper Where First Petition Voluntarily Withdrawn

The Supreme Court of Utah held that there was no previous request for post-conviction relief to support dismissal of a second petition under Utah Code § 78B-9-106(1)(d) of the Post-Conviction Remedies Act (“PCRA”) where the first petition was voluntarily dismissed under Utah Rules of Civil Procedure, Rule 41(a)(1)(A).

Ronald Hand was convicted of aggravated sexual abuse of a minor in August 2013. In 2017, he simultaneously filed pro se petitions in the U.S. District Court for the District of Utah and in the Second District of Utah (“State Court”). In both courts, he used the preprinted form used by the federal courts for filings under 28 U.S.C. § 2254. Both petitions raised substantially the same issues. But when the State Court asked Hand to pay the filing fee, he requested his state petition be withdrawn under Rule 41(a)(1)(A). The State Court granted Hand’s request. However, the federal district court reviewed Hand’s petition still pending in that court and appointed counsel.

With the assistance of counsel, Hand filed an amended petition in federal court and a new petition in the State Court. The State moved for dismissal, contending that the new petition was procedurally barred by § 78B-9-106(1)(d) of the PCRA because it asserted claims that were “raised or addressed in any previous request for post-conviction relief” or that “could have been, but [were] not, raised in a previous request for post-conviction relief.” The State Court granted the State’s motion, ruling that the petition that had been withdrawn pursuant to Rule 41(a)(1)(A) was a “previous request for post-conviction relief.” Hand appealed.

The Supreme Court of Utah observed that a voluntary dismissal under Rule 41(a)(1)(A) “render[s] the proceedings a nullity and leave[s] the parties as if the action had never been brought.” Barton v. Utah Transit Auth., 872 P.2d 1036 (Utah 1994). Since the proceedings leading up to the dismissal were a legal nullity, “there was no ‘previous request for post-conviction relief’ to sustain the procedural bar under Utah Code section 78B-9-106(1)(d).”

The Court rejected the State’s argument that Hand failed to preserve his issue and reliance on Rule 41(a)(1)(A). The Court opined that its jurisprudence distinguishes between raising new issues on appeal versus raising new arguments or citing other authority in support of properly preserved issues. State v. Johnson, 416 P.3d 443 (Utah 2017). Hand had properly preserved his issue and had only cited Rule 41(a)(1)(A) as additional authority supporting his preserved claim.

The Court also rejected the State’s alternative argument. While Rule 41(a)(1)(A) permits voluntary dismissal “[s]ubject to Rule 23(e) and any applicable statute,” the Court rejected the State’s contention that § 78B-9-106(1)(d) of the PCRA is an applicable statute. Rule 23(e) concerns classaction lawsuits which precluded voluntary dismissal by a named plaintiff unless legal prerequisites are fulfilled. Section 78B-9-106(1)(d) does not concern itself with class-action lawsuits and is silent regarding petitions voluntarily dismissed under Rule 41(a)(1)(A).

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Related legal case

Hand v. State



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