Telford v. State of Utah

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Travis Telford,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20010759-CA

F I L E D

January 10, 2002   2002 UT App 7 -----

First District, Brigham Department

The Honorable Ben H. Hadfield

Attorneys:

Travis Telford, Draper, Appellant Pro Se

Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Greenwood.

PER CURIAM:

This matter is before the court on a sua sponte motion to affirm the trial court's order because it appears that no substantial question is presented for review. See Utah R. App. P. 10(e). Petitioner appeals the trial court's denial of his petition for postconviction relief under Rule 65C of the Utah Rules of Civil Procedure. This court affirmed petitioner's original conviction on direct appeal. See State v. Telford, 940 P.2d 522 (Utah Ct. App. 1997).

In his petition for postconviction relief, petitioner first argues that he received ineffective assistance of counsel because trial counsel failed to interview several witnesses. To succeed on an ineffective assistance of counsel claim, petitioner must establish that 1) the attorney's performance was deficient, and 2) the deficient performance prejudiced his defense. SeeStrickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). After a hearing, the trial court ruled that petitioner failed to present any evidence as to the testimony of these witnesses. Therefore, the trial court found that petitioner had failed to meet his burden on the second prong of the Strickland test to establish ineffective assistance of trial counsel.

Petitioner next argues that he received ineffective assistance of counsel because trial counsel failed to seek a jury instruction on duress. Petitioner asserts that he was under duress because he was present when the co-defendant fired the gun and the co-defendant asked petitioner for another clip of ammunition. At the hearing, the trial court ruled that even if trial counsel had requested an instruction on duress, the court would not have given it because there was no evidence of duress. See State v. Tuttle, 730 P.2d 630, 634 (Utah 1986) (stating duress must be based on a specific, imminent threat of death or substantial bodily harm). Thus, because petitioner failed to show that the instruction was necessary, he again failed to establish ineffective assistance under the Strickland test.

Finally, petitioner argues ineffective assistance of appellate counsel because counsel failed to assert his own ineffectiveness on appeal and because counsel failed to inform petitioner of the deadline for seeking review in the supreme court. Once again, the trial court found that petitioner could not prevail on the issue of counsel's failure to assert his own ineffectiveness because there was no ineffectiveness. The trial court was sympathetic regarding counsel's failure to inform petitioner of the deadline for supreme court review. However, the trial court determined that petitioner failed to establish that the outcome of the case would have been any different if counsel informed him of the deadline for filing for review to the supreme court. Thus, petitioner did not meet the prejudice prong of the Strickland test to establish ineffectiveness of appellate counsel.

Petitioner fails to demonstrate any error by the trial court in denying the request for postconviction relief. Therefore, petitioner fails to present any substantial question for our review. Accordingly, we grant the sua sponte motion and affirm the trial court's ruling.
 
 

______________________________

Judith M. Billings,

Associate Presiding Judge
 
 

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James Z. Davis, Judge
 
 

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Pamela T. Greenwood, Judge