Holland v. State

IN THE UTAH COURT OF APPEALS

----ooOoo----

Robert Scott Holland,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030282-CA
 

F I L E D
(February 12, 2004)
 

2004 UT App 24

-----

Fifth District, Parowan Department

The Honorable J. Philip Eves

Attorneys: James K. Slavens, Fillmore, for Appellant

Mark L. Shurtleff, Jeffrey S. Gray, and Christopher D. Ballard, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Jackson, and Orme.

PER CURIAM:

This is an appeal from the trial court's grant of summary judgment denying Appellant's (Holland's) post-conviction petition for relief under the Post-Conviction Remedies Act, Utah Code Ann. § 78-35a-101-110 (2002). Holland argues that his counsel was ineffective in failing to object to what Holland claims to be a faulty jury instruction. He also claims that the trial court erred by refusing to accept a juror affidavit related to the juror's perception of the instruction and how it effected her deliberation.

The trial court granted summary judgment in favor of the State on the basis that Holland's claims were already adjudicated and decided by this court in direct appeal of his conviction. A post-conviction petition is not a substitute for a direct appeal. See Rudolph v. Galetka, 2002 UT 7,¶5, 43 P.3d 467; Carter v. Galetka, 2001 UT 96,¶6, 44 P.3d 626. "As a result, issues raised and disposed of on direct appeal of a conviction or sentence cannot be raised again in a petition for habeas corpus." Carter, 2001 UT 96 at ¶6.

Holland argues that his claims are different because he argues ineffective assistance of counsel by reason of counsel's failure to object to the instruction in this petition, rather than simply that the instruction is erroneous. See Rudolph, 2002 UT 7 at ¶7. However, in this court's previous decision, we determined that the instruction given by the trial court was not erroneous. Therefore, counsel was not ineffective for failing to object to an instruction that was not erroneous.

Holland also argues that the affidavit of one of the jurors in his trial, which the trial court rejected under rule 606 of the Utah Rules of Evidence and which rejection we affirmed on direct appeal, should have been admitted for purposes of his ineffective assistance claim because, he asserts, it bears on the issue of counsel's deficient performance. We disagree. Holland seeks to use the affidavit for the same reason he did on direct appeal, i.e., as it relates to the juror's thought process in reaching her verdict. Rule 606 bars a juror from testifying "as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any juror's mind or emotions as influencing the juror . . . or concerning the juror's mental process in connection therewith."

We affirm the trial court's ruling.

______________________________

Pamela T. Greenwood, Judge

______________________________

Norman H. Jackson, Judge

______________________________

Gregory K. Orme, Judge