UTAH SUPREME COURT

Case No. 20160419-SCIN THEUTAH SUPREME COURTMICHAEL ANTHONY ARCHULETA,Petitioner/Appellant,v.STATE OF UTAH,Respondent/Appellee.Supplemental Brief of AppelleeANDREW F. PETERSON (10074)AARON G. MURPHY (9939)JON M. SANDSAssistant Solicitors GeneralFederal Public DefenderSEAN D. REYES (7969)Leticia MarquezUtah Attorney GeneralCharlotte G. Merrill160 East 300 South, 6th FloorAssistant Federal Public Defenders P.O. Box 140854850 West Adams Street, Ste. 201Salt Lake City, UT 84114-0854Phoenix, AZ 85007Telephone: (801) 366-0180Email: andrewpeterson@agutah.govCounsel for AppellantCounsel for Appellee

TABLE OF CONTENTSTABLE OF AUTHORITIES .iiINTRODUCTION . 1ARGUMENT . 5I.Atkins claims brought after final judgment are cognizable underUtah Code section 78B-9-104(1)(f)(ii), the “substantive rule”exception to non-retroactivity. . 5A. Archuleta’s Atkins claim is not grounded by either statutoryprovision this Court identified or by Utah R. Crim. P. 22(e). . 7B. Utah Code section 78B-9-104(1)(f)(ii) codifies Teague’s“substantive rule” exception to the bar against retroactivity,which embraces categorical exemptions. . 12II. If Archuleta’s claim is not cognizable under the new ruledecriminalization provision, then Archuleta has no remedy instate court and the judgment of the lower court must be affirmed. . 20III. Dismissal was proper because the summary judgment papersfully satisfied due process, and if there were some technicalnoncompliance with Utah Code section 78b-9-106(2)(b)’s noticeprovision, the error was harmless. . 22CONCLUSION. 30CERTIFICATE OF COMPLIANCE . 31ADDENDUMUtah Code Ann. § 78B-9-104-i-

TABLE OF AUTHORITIESFEDERAL CASESAllen v. Buss, 558 F.3d 657 (7th Cir. 2009) . 16Atkins v. Virginia. 536 U.S. 304 (2002) . 11Beaty v. Schriro, 554 F.3d 780 (9th Cir. 2009) . 19Bell v. Cockrell, 310 F.3d 330 (5th Cir. 2002). 16Davis v. Norris, 423 F.3d 868 (8th Cir. 2005) . 16Hill v. Anderson, 300 F.3d 679 (6th Cir. 2002) . 17Kilgore v. Sec’y, Fla. Dep’t of Corr., 805 F.3d 1301 (11th Cir. 2015). 16Montgomery v. Louisiana, 136 S.Ct. 718 (2016) .15, 16, 19, 20Mullane v. Cent. Hanover Bank & Trust, 339 U.S. 306 (1950). 23Osborn v. Bank of United States, 9 Wheat. 738, 6 L.Ed. 204 (1824) . 21Penry v. Lynaugh, 492 U.S. 302 (1989). 10, 15, 16Prieto v. Zook, 791 F.3d 465 (4th Cir. 2015) . 19Teague v. Lane, 489 U.S. 288 (1989) . 13, 14, 15STATE CASESAm. W. Bank Members v. State, 2014 UT 49, 342 P.3d 224 . 23Bivens v. Salt Lake City Corp., 2017 UT 67, P.3d . 23, 26Bluemel v. State, 2011 UT App 133, 253 P.3d 1128 . 27Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005) . 17-ii-

Carter v. Univ. of Utah Med. Ctr., 2006 UT 78, 150 P.3d 467 .8Clemons v. State, 55 So. 3d 314 (Ala. Crim. App. 2003). 17Duncan v. State, 925 So. 2d 245 (Ala. Crim. App. 2005). 17Engram v. State, 200 S.W.3d 367 (Ark. 2004) . 17Esparza-Recendez v. State, 2012 UT App 344, 293 P.3d 377 . 27Franklin v. Maynard, 588 S.E.2d 604 (S.C. 2003). 17Hall v. Dep’t of Corr., 2001 UT 34, 24 P.3d 958 .8Head v. Hill, 587 S.E.2d 613 (Ga. 2003) . 17In re Worthen, 926 P.2d 853 (Utah 1996) . 24, 27Jackson Constr. Co. v. Marrs, 2004 UT 89, 100 P.3d 1211. 24Johnson v. State, 102 S.W.3d 535 (Mo. 2003). 17Kell v. State, 2008 UT 62, 194 P.3d 913 . 29Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983). 24Pickens v. State, 74 P.3d 601 (Okla. Crim. App. 2003). 17Pinder v. State, 2015 UT 56, 367 P.3d 968. 18Pizzuto v. State, 202 P.3d 642 (Idaho 2008) . 17Rupp v. Grantsville City, 610 P.2d 338 (Utah 1980) . 24Russell v. State, 849 So. 2d 95 (Miss. 2003) . 17Schwenke v. State, 2014 UT App 103, 326 P.3d 684. 27State v. Archuleta, 850 P.2d 1232 (Utah 1993) . 10-iii-

State v. Bond, 2015 UT 88, 361 P.3d 104 . 28State v. Dunn, 831 So. 2d 862 (La. 2002) . 17State v. Houston, 2015 UT 40, 353 P.3d 55 . 11, 13State v. Lott, 779 N.E.2d 1011 (Ohio 2002) . 17State v. Merrill, 2005 UT 34, 114 P.3d 585 . 19Williams v. State, 793 N.E.2d 1019 (Ind. 2003) . 17Winward v. State, 2015 UT 61, 355 P.3d 1022 . 10, 16CONSTITUTIONAL PROVISIONS, STATUTES, AND RULESUtah Const. art. 1, § 9 .728 U.S.C. § 2254 . 22Utah Code Ann. § 78B-9-104 . passimUtah Code Ann. § 78B-9-106 . passimUtah R. App. P. 21 . 31Utah R. App. P. 24 . 31Utah R. Civ. P. 65C . 26, 27Utah R. Crim. P. 22 . 1, 2, 6, 7, 11-iv-

Case No. 20160419-SCIN THEUTAH SUPREME COURTMICHAEL ANTHONY ARCHULETA,Petitioner/Appellant,v.STATE OF UTAH,Respondent/Appellee.Supplemental Brief of AppelleeINTRODUCTIONThis Court requested supplemental briefing on three questions. First,the Court asked alternatively whether (1) Archuleta’s Atkins claim iscognizable under the PCRA and, if so, under which statutory provision; or(2) whether Atkins claims are cognizable under Utah R. Crim. P. 22(e). Second,the Court asked what the proper disposition of this case should be if theAtkins claim is not cognizable under the PCRA. Finally, the Court askedwhether the district court erred, plainly or otherwise, by relying on the PCRAprocedural bars to deny post-conviction relief, after the State had withdrawnits procedural defenses, without notifying the parties that it intended to doso.

The PCRA does provide an avenue for relief for Atkins claims broughtafter the judgment became final, but not under the provisions identified inthis Court’s Supplemental Briefing Order. Such a claim could not be broughtunder Utah Code section 78B-9-104(1)(a) because Atkins had not issued beforeArchuleta was convicted and sentenced, and it could not be said that “theconviction was obtained or the sentence was imposed in violation of the UnitedStates Constitution.” (Emphasis added). Nor could such a claim be broughtunder section 78B-9-104(1)(f)(i) because Atkins was not “dictated byprecedent existing at the time the petitioner’s conviction or sentence becamefinal.” Indeed, controlling precedent at the time Archuleta’s judgmentbecame final dictated the opposite of Atkins’s holding. And Utah R. Crim. P.22(e) only permits facial challenges to a sentence, not as-applied challengeslike this one that require evidentiary development.However, Utah Code section 78B-9-104(1)(f)(ii) permits postconviction relief for categorical status exemptions, like those identified inAtkins, subject of course to all applicable procedural limitations. A petitionermay obtain relief where “a rule announced by the United States SupremeCourt l decriminalizes the conduct that comprises the elements of the crimefor which the petitioner was convicted.” Id. Though not obvious from the text,-2-

this provision codifies the United States Supreme Court’s “substantive rule”exception to the presumption against non-retroactivity. That exception, theSupreme Court has explained, embraces status exemptions that placecategories of people, irrespective of the crime at issue, outside the reach ofthe State to punish, including Atkins claims. Thus, just like the federalframework it codifies, the PCRA’s “decriminalization” exception embracesstatus exemptions—including exemptions from particular punishments—that the Supreme Court announces after finality. This is the proper statutoryground for Archuleta’s Atkins claim.If the Court holds that no PCRA provision provides a statutory groundfor Archuleta’s Atkins claim, then the proper disposition is affirmance of thelower court’s denial of relief, but on grounds alternative to those identifiedby the district court. For all the reasons argued in the Brief of Appellee, thisCourt has no independent authority to act outside the dictates of the PCRA.And denying relief does not violate Montgomery v. Louisiana, since that caseonly stands for the proposition that a state post-conviction regime must applynew exemptions retroactively where that regime is legally open to suchclaims—it did not hold that the constitution obliges States to be open toclaims in the first place. If this Court rules that the PCRA is not open to Atkins-3-

claims, then Montgomery has nothing to say here. In that case, Archuleta mustseek vindication of his federal rights in federal court. 1Finally, the district court did not err, plainly or otherwise, by grantingsummary judgment on procedural grounds. The PCRA explicitly permits thecourt to apply the bars on its own motion, provided the parties are allowedto address the bars’ applicability. Archuleta extensively addressed theprocedural bars in his summary judgment papers, and even said neitherparty should be allowed another word on the matter. Under thesecircumstances, it was certainly not obviously wrong to use the authorityexplicitly granted by the PCRA to sua sponte apply the procedural bars. Andsince the district court’s procedural bar rulings were substantively correct,any error was harmless.The State does not concede that Archuleta would be entitled to reliefin federal court. As already argued, Archuleta is not intellectually disabled,and he may be subject to procedural limitations because of the same dilatorytactics that have limited his ability to bring the claim in State court.1-4-

ARGUMENTI.Atkins claims brought after final judgment are cognizableunder Utah Code section 78B-9-104(1)(f)(ii), the “substantiverule” exception to non-retroactivity.This Court’s Supplemental Briefing Order said that “[b]oth partiespresume that the Post-Conviction Remedies Act (PCRA) provides an avenuefor Mr. Archuleta’s Atkins claim.” Order at 1. But the Court also noted it “isnot readily apparent” “which, if any, statutory ground for relief applies.” Id.1-2. The Court suggested two possible statutory provisions as grounding anAtkins claim like Archuleta’s, and noted theoretical problems with each. Thefirst possibility, which “Archuleta apparently assumes,” is Utah Code section78B-9-104(1)(a), where a conviction or sentence were “obtained” or“imposed” in violation of the constitution. Id. The second, which the Courtattributes to the State, is section 78B-9-104(1)(f)(i), provides relief where a newSupreme Court holding was “dictated by precedent” that existed at the timethe petitioner’s judgment became final. Id. at 2-3. 2Counsel for the State is unaware of any instance where he suggestedthat section 78B-9-104(1)(f)(i) applies here, and if he did make such asuggestion, it was in error and counsel apologizes for it.2-5-

As explained below, neither of these sections grounds Archuleta’sAtkins claim. Nor does Utah R. Crim. P. 22(e), because that rule does notpermit as-applied, fact-intensive challenges like this one.Rather, section 78B-9-104(1)(f)(ii) applies. That section permits reliefwhere a later supreme court holding “decriminalizes the conduct” for whichthe petitioner was convicted and sentenced. Though not obvious from thetext alone, this section codifies the United States Supreme Court’s“substantive rule” exception to non-retroactivity. Substantive rules are thosethat place beyond the reach of the State to punish both (1) categories ofconduct (decriminalization), and (2) categories of people (status exemptions).The Supreme Court explained in 1989 that the second is simply an outgrowthof the first, and that explanation was apparent when the Utah Legislaturecodified the Supreme Court’s “decriminalization” exception to nonretroactivity in 2008. So while the provision may superficially appear to applyonly when conduct is no longer criminal, the language the Utah Legislatureadopted also allowed relief when new rules exclude persons of a particularstatus from particular punishments—in this case, persons who areintellectually disabled are by virtue of that status beyond the reach of a deathsentence.-6-