O'Hara v. State of Utah et al

----ooOoo---- Larry D. O'Hara,

Petitioner and Appellant,

v.

State of Utah, and Hank Galetka, Warden,

Respondents and Appellees. )
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) MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981677-CA

F I L E D
(January 14, 1999)

1999 UT App 005

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Second District, Ogden Department
The Honorable Michael J. Glasmann

Attorneys:
Robert L. Booker and Christopher T. Beck, Salt Lake City, for Appellant

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Before Judges Bench, Billings, and Orme.

PER CURIAM:

Issues that were fully and fairly adjudicated on direct appeal and allegations of error that could have been raised on direct appeal from a criminal conviction cannot properly be relitigated in a post-conviction relief proceeding. See Hurst v. Cook, 777 P.2d 1029, 1036 (Utah 1989) (stating that "[a] ground for relief from a conviction or sentence that has once been fully and fairly adjudicated on appeal or in a prior habeas proceeding should not be readjudicated"); Codianna v. Morris, 660 P.2d 1101, 1104 (Utah 1983) (saying that "[i]t is therefore well settled in this state that allegations of error that could have been but were not raised on appeal from a criminal conviction cannot be raised by habeas corpus or postconviction review"); see also, Utah R. Civ. P. 65C(g)(1) (1998), (stating that "if it is apparent to the [trial] court that any claim has been adjudicated in a prior proceeding, or if any claim in the petition appears frivolous on its face, the court shall forthwith issue an order dismissing the claim, stating either that the claim has been adjudicated or that the claim is frivolous on its face").

O'Hara's claims concerning DNA testing and evidence regarding syphilis were raised and fully and fairly adjudicated in his direct appeal and, therefore, were inappropriately raised again in his petition for writ of habeas corpus. His allegations concerning trial counsel's alleged failure to object to hearsay statements and failure to object to jury instructions could have been raised on direct appeal and, thus, were properly rejected by the trial court in its ruling on O'Hara's petition for writ of habeas corpus.

With regard to his allegations concerning the Board of Pardons, O'Hara failed to provide specific factual or legal support for his assertions.

Accordingly, the trial court is affirmed.

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Russell W. Bench, Judge

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Judith M. Billings, Judge

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Gregory K. Orme, Judge