Gomez v. State of Utah

----ooOoo----

Andy C. Gomez,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010742-CA

F I L E D
October 10, 2002 2002 UT App 328 -----

Seventh District, Monticello Department
The Honorable Lyle R. Anderson

Attorneys:
Rosalie Reilly, Monticello, for Appellant
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee -----

Before Judges Billings, Greenwood, and Orme.
ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and [the] record[,] and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

"A person is not eligible for relief . . . upon any ground that . . . was raised or addressed in any previous request for post-conviction relief or could have been, but was not, raised in a previous request for post-conviction relief[.]" Utah Code Ann. § 78-35a-106(1)(d) (1996). See also Monson v. State, 953 P.2d 73, 75 (Utah 1998) (dismissing a habeas corpus petition because it contained arguments that "were not but could have been raised in a previous habeas petition"). All of the claims Gomez makes in his present petition either were raised or could have been raised in the petition he filed on October 7, 1999.

Rule 65C allows parties to raise "[a]dditional claims . . . in subsequent proceedings [if] good cause [is] shown." Utah R. Civ. P. 65C(c). Gomez makes one claim in this proceeding that was not articulated with any clarity in his prior petition: that the prosecuting attorney had conflicting interests. However, Gomez's brief does not argue that good cause exists to consider this claim. Furthermore, Gomez fails to explain, pursuant to section 78-35a-106(1)(d), why he could not have included this claim in his 1999 petition. Therefore, we decline to consider it.

By failing to appeal the trial court's decision regarding his 1999 petition, Gomez lost his right to pursue his claims. See State v. Clark, 913 P.2d 360, 362-63 (Utah Ct. App. 1996) (holding that a defendant who failed to appeal or petition for rehearing "was thereafter barred under the doctrine of res judicata from subsequently challenging his sentence on the same legal basis").

Affirmed.
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Pamela T. Greenwood, Judge