Loretto v. State of Utah

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Loretto v. State of Utah Case No. 981831-CA, Filed May 25, 2000 IN THE UTAH COURT OF APPEALS

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Gilbert Loretto,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981831-CA

F I L E D
(May 25, 2000)

2000 UT App 153
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Third District, Salt Lake Department
The Honorable Frank G. Noel

Attorneys:
Gilbert Loretto, Draper, Appellant Pro Se
Jan Graham and Thomas Brunker, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

DAVIS, Judge:

Petitioner Gilbert Loretto seeks review of the trial court's dismissal of his petition for an extraordinary writ, filed under Rule 65B of the Utah Rules of Civil Procedure. "On appeal from dismissal of a petition for extraordinary relief, we review the trial court's conclusions of law supporting the dismissal for correctness." Miller v. State, 932 P.2d 618, 620 (Utah Ct. App. 1997). We affirm in all respects.
 

A petition for post-conviction relief, or habeas corpus, collaterally attacks a conviction and/or a sentence. It is not a substitute for direct appellate review. Issues raised and disposed of on direct appeal of a conviction or a sentence cannot properly be raised again in a Rule 65B proceeding, and should be dismissed as an abuse of the writ without a ruling on the merits. Issues that could have and should have been raised on direct appeal, but were not, may not properly be raised in a habeas corpus proceeding absent unusual circumstances.

Gardner v. Holden, 888 P.2d 608, 613 (Utah 1994) (citations

omitted).
 

In this appeal, petitioner raises six issues, five of which were previously disposed of on direct appeal. See State v. Loretto, No. 960622 (Utah Ct. App. Aug. 14, 1997). The five issues that were disposed of earlier--(1) the trial court's refusal to quash the jury panel, (2) sufficiency of the evidence, (3) the appropriateness of the jury instructions, (4) the trial court's refusal to submit petitioner's instruction to the jury, and (5) the trial court's denial of petitioner's motion for a continuance--are not properly before this court. See Gardner, 888 P.2d at 613 ("Issues raised and disposed of on direct appeal of a conviction . . . cannot properly be raised again in a Rule 65B proceeding.").
 

The sixth issue, that both the trial court and the jury were not impartial, could and should have been raised on direct appeal. To be successful on his petition, petitioner must prove that the previously unraised issue amounted to unusual circumstances which, if not addressed by the reviewing court, would make the "trial fundamentally unfair." Id. Petitioner has not done this and merely argues that, by not ruling in his favor on the other issues, the trial judge was biased. Such unsupported assertions are not grounds for invoking Rule 65B. Accordingly, petitioner has not met his burden on appeal.
 

Petitioner attempts to save his petition from dismissal by arguing that his counsel was ineffective at trial and on appeal.(1) "[T]he unusual circumstances test may be satisfied when there is a claim of ineffectiveness of trial counsel and the same attorney handled both the trial and the direct appeal." Id. at 615. However, "[a] claim of ineffective assistance of counsel may not . . . be used simply to relitigate 'under a different guise' an issue already disposed of on direct appeal." Id. (citation omitted).
 

Although petitioner argues that he received ineffective assistance of counsel, he fails to point to any instances where "counsel committed specific acts or omissions that 'f[e]ll outside the wide range of professionally competent counsel and, second, that a reasonable probability exists that but for counsel's error, the result would have been different.'" Id. at 617 (citation omitted). Petitioner states that "[i]t is quite possible that the ineffective representation of [petitioner] was because the State government prevented his counsel from fully and zealously representing [petitioner] because of loyalties owed to Third (3) parties (e.g. The Prosecution and The Utah Department of Corrections)." This bald assertion, without more, is insufficient to meet petitioner's burden of showing that "counsel's errors were so serious as to deprive the defendant of a fair trial, 'a trial whose result is reliable.'" Id. (citation omitted). Petitioner's argument is nothing more than a pretext to relitigate issues that were previously decided on the merits.
 

The trial court correctly dismissed petitioner's petition for extraordinary relief. We therefore affirm the trial court's ruling.
 
 
 
 
 

______________________________

James Z. Davis, Judge
 


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WE CONCUR:
 
 
 
 
 

______________________________

Russell W. Bench, Judge
 
 
 
 
 

______________________________

Gregory K. Orme, Judge

1. The record reflects that petitioner's trial and appellate counsel were the same.

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