Reddish v. Galetka

----ooOoo----

Marvin Kent Reddish,
Petitioner and Appellant,

v.

Hank Galetka, Warden,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000029-CA

F I L E D
November 16, 2000
  2000 UT App 328 -----

Second District, Ogden Department
The Honorable Michael J. Glasmann

Attorneys:
Marvin K. Reddish, Draper, Appellant Pro Se
Jan Graham and Erin Riley, Salt Lake City, for Appellee -----

Before Judges Bench, Davis, and Thorne.

PER CURIAM:

A petition for postconviction relief must be brought within one year from the date the cause of action accrues. See Utah Code Ann. § 78-35a-107 (1996). The date the cause of action accrues is the latest of the following dates: (a) the last day for filing an appeal from the entry of the final judgment of conviction, if no appeal is taken;

(b) the entry of the decision of the appellate court which has jurisdiction over the case, if an appeal is taken;

(c) the last day for filing a petition for writ of certiorari in the Utah Supreme Court or the United States Supreme Court, if no petition for writ of certiorari is filed;

(d) the entry of the denial of the petition for writ of certiorari or the entry of the decision on the petition for certiorari review, if a petition for writ of certiorari is filed; or

(e) 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. Id.

Reddish's causes of action, underlying his petition for postconviction relief, accrued one year from "the day for filing a petition for writ of certiorari in the Utah Supreme Court or the United States Supreme Court, if no petition for writ of certiorari is filed." Id. § 78-35a-107(c). We issued our decision on his direct appeal on June 14, 1994, and thirty days later was July 14, 1994. Thus, Reddish had until July 14, 1995 in which to file his petition for postconviction relief. He filed a petition for writ of mandamus in April 1997 and did not file his petition for postconviction relief until November 1998, well beyond the one year statute of limitation. Reddish claims that the petition for writ of mandamus extended the appeal period. However, such a writ does not affect the postconviction statute of limitations. See id. § 78-35a-107 (1996) (all actions from which statute of limitations begins to run are related to final judgment of conviction in underlying criminal case).

There is an exception to the one year statute of limitations--if the "interests of justice require, a court may excuse a petitioner's failure to file within the time limitations." Id. at § 78-35a-107(3). However, the trial court determined that this exception does not apply and Reddish has failed to prove otherwise. This conclusion is further bolstered by the fact that Reddish's claims are frivolous, could have been raised on direct appeal, and some were raised and rejected in his petition for writ of mandamus.

We conclude that Reddish's petition for postconviction relief was untimely because it was not filed within one year of July 14, 1994, and the interests of justice do not excuse his late filing. See id. § 78-35a-107; State v. Gallegos, 712 P.2d 207, 209 (Utah 1985) (stating appellate courts may affirm trial court's decision on any proper grounds, even if trial court assigned another reason for its ruling).

Accordingly, the trial court's February 4, 1999 and November 29, 1999 orders dismissing Reddish's petition for postconviction relief are affirmed.
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 

______________________________
William A. Thorne, Jr., Judge