Peterson v. State

               THE UTAH COURT OF APPEALS

                    TIMOTHY JAMES PETERSON,
                          Appellant,
                              v.
                        STATE OF UTAH,
                          Appellee.

                             Opinion
                         No. 20220765-CA
                     Filed November 7, 2024

         Third District Court, West Jordan Department
                 The Honorable Chelsea Koch
                         No. 210903613

        Dain Smoland, Debra M. Nelson, Benjamin Miller,
             and Ian Quiel, Attorneys for Appellant
                 Sean D. Reyes and Daniel L. Day,
                      Attorneys for Appellee

    JUDGE RYAN D. TENNEY authored this Opinion, in which
    JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1    A jury convicted Timothy James Peterson of aggravated
kidnapping, aggravated assault, and failure to stop at a law
enforcement officer’s command, and we affirmed these
convictions on direct appeal.

¶2      Peterson later filed a pro se petition for postconviction
relief. The district court dismissed several of Peterson’s claims,
concluding that they were procedurally barred. Peterson soon
filed correspondence asking the court to vacate that dismissal. The
district court treated this correspondence as a rule 60(b) motion,
but the court then denied that motion. The district court later
issued a ruling denying Peterson’s request for the appointment of
                          Peterson v. State


counsel, after which it issued a ruling granting the State’s request
for summary judgment on the remainder of Peterson’s claims.

¶3     On appeal, Peterson first challenges the denial of his rule
60(b) motion. As set forth below, we agree with Peterson that the
court erred in denying that motion, so we reverse the district
court’s decision. Peterson next challenges the court’s denial of his
motion to appoint counsel. But we see no abuse of discretion in
the court’s ruling, so we decline to reverse that decision.


                         BACKGROUND

¶4     The facts that led to Peterson’s criminal convictions are set
forth in State v. Peterson, 

, ¶¶ 1–7, 

,
and we need not recount them at length here. In brief, a jury
convicted Peterson of aggravated kidnapping, aggravated
assault, and failure to stop at a law enforcement officer’s
command. See id. ¶ 1. These convictions were based on trial
testimony showing that Peterson violently assaulted his wife over
the course of several hours (leaving her with a variety of injuries
to her face, teeth, and body), prevented her from escaping, and
then fled when a police officer saw them and tried intervening.
See id. ¶¶ 2–5. We affirmed Peterson’s convictions on direct
appeal, id. ¶ 30, and the Utah Supreme Court denied Peterson’s
request for a writ of certiorari, see State v. Peterson, 

(Utah 2020).

¶5     In July 2021, Peterson—who was incarcerated at the Utah
State Prison at the time—filed a pro se petition for relief under the
Postconviction Remedies Act (the PCRA). See generally Utah Code
§§ 78B-9-101 to -503. Peterson raised six claims in this
postconviction petition. Four of the claims alleged that his trial
counsel had provided ineffective assistance—namely, Peterson
alleged that counsel was ineffective for (1) not moving to strike
certain testimony, (2) not moving for a mistrial based on what
Peterson believed were weaknesses in testimony from one of the
State’s witnesses, (3) not objecting to certain questions the



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                         Peterson v. State


prosecutor asked at trial, and (4) not objecting to the composition
of the jury. Peterson’s remaining two claims (the Brady claims)
alleged that the prosecution had failed to disclose evidence in
violation of Brady v. Maryland, 

 (1963).

¶6     Rule 65C of the Utah Rules of Civil Procedure “governs
proceedings in all petitions for post-conviction relief.” Utah R.
Civ. P. 65C(a). In a subsection entitled “Summary Dismissal of
Claims,” the rule states that after a postconviction petition has
been filed, the assigned judge must conduct an initial review of
the petition and dismiss any claim that was “adjudicated in a prior
proceeding” or “appears frivolous on its face.” 

 R. 65C(h)(1). In
August 2021, the district court conducted this review and then
issued a ruling stating that none of Peterson’s claims should be
dismissed under this standard. In that same order, however, the
court observed that, in its view, Peterson’s claims of ineffective
assistance of trial counsel were likely procedurally barred because
they could have been brought during the direct appeal but were
not. See Utah Code § 78B-9-106(1)(c).

¶7     That same day, the district court issued a separate order
that was captioned as an order to show cause. There, the court
again observed that Peterson’s ineffective assistance of trial
counsel claims were likely procedurally barred because they
could have been raised on direct appeal. The court then gave
Peterson 21 days in which “to file a memorandum explaining why
the challenged claims should not be dismissed,” stating that if no
memorandum was filed, the court would “dismiss the claims for
ineffective assistance of trial counsel at that time.”

¶8     In December 2021, the court issued a ruling (the December
Ruling) in which it stated that Peterson had not responded to the
order to show cause. The court accordingly dismissed Peterson’s
ineffective assistance of trial counsel claims.

¶9     About two weeks later, Peterson sent a handwritten letter
to the court asserting that he had in fact timely responded to the
order to show cause, and Peterson supported this assertion with



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                          Peterson v. State


scans from the jail notary and mail service that allegedly
corroborated his claim.

¶10 A few days after sending this letter, Peterson resent the
“packet” that he claimed he had sent the first time. This packet
included a memorandum in which Peterson argued against
dismissal of his claims. There, he alleged that he had discovered
the support for his ineffective assistance of trial counsel claims
while reviewing trial transcripts and exhibits after his appeal had
concluded. Of note for this appeal, Peterson also included a
“motion to amend” in which he asked the court for leave to add a
claim of ineffective assistance of appellate counsel, recognizing
that such a claim serves as “the gateway to the otherwise
procedurally barred trial counsel claim[s].” In the proposed
ineffective assistance of appellate counsel claim, Peterson argued
that his appellate counsel was ineffective for “not do[ing] a proper
investigation,” as well as for not raising the ineffective assistance
of trial counsel claims that appellate counsel “should have
discovered with her background and expertise.”

¶11 These documents (and many of Peterson’s subsequent
filings) were only sent to the court, so the State was not properly
provided with notice of them. Upon realizing this, the court
issued an order notifying the State that Peterson’s
“correspondence” had “been added to the docket.” In that same
order, the court observed that although Peterson had not
“specifically cite[d] Rule 60(b) of the Utah Rules of Civil
Procedure,” it would “interpret[] the correspondence as such a
motion” because Peterson was “essentially requesting that [the]
Court set aside” the December Ruling. 1 The court then gave the
State time to respond.




1. In light of this, we’ll refer to Peterson’s correspondence as “the
rule 60(b) motion” moving forward, even though, as indicated,
Peterson did not refer to that rule in his initial correspondence.
                                                        (continued…)


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                         Peterson v. State


¶12 A short time later, Peterson filed a motion asking the court
to appoint postconviction counsel to represent him for the
remainder of the postconviction proceedings. 2

¶13 Before the court ruled on that request, the State filed a
motion for summary judgment on the Brady claims. Peterson later
filed a pro se opposition to that motion. In his opposition,
Peterson included copies of various documents (including trial
transcripts, communications with his trial counsel, and the State’s
summary judgment motion), and Peterson added handwritten
commentary and arguments in the margins of those documents.
When the State later filed a reply to Peterson’s opposition, the
State referred to what it described as Peterson’s “largely
incomprehensible or otherwise unreadable marginalia and
editorial marks.” The State also filed an opposition to Peterson’s
rule 60(b) motion. There, the State argued that Peterson’s
ineffective assistance of trial counsel claims were procedurally
barred because they could have been raised on direct appeal but
were not. The State then acknowledged, however, that the PCRA
does “permit[] an appellate counsel ineffectiveness claim to assess
the question of whether a properly brought trial counsel claim
would have made any difference on direct appeal”—i.e., the State
agreed that an “appellate counsel claim is the gateway to the
otherwise procedurally barred trial counsel claim.” But the State
pointed out that Peterson’s original petition had not “allege[d]
appellate counsel ineffectiveness.” And while the State noted that
Peterson had now “include[d] among his various letters and

We also note that, on appeal, the State has not argued that the
court erred in treating this correspondence as a rule 60(b) motion.

2. For purposes of this opinion, we’ll use the phrase
“postconviction counsel” when discussing Peterson’s request for
representation at the district court stage of the postconviction
proceeding. We’ll use the phrase “postconviction appellate
counsel” to refer to Peterson’s separate (and subsequent) request
for representation in this appeal from the dismissal of the
postconviction petition.


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                         Peterson v. State


attachments . . . a ‘motion to amend’ his petition to add an
appellate counsel ineffectiveness claim,” the State argued that
“granting an amendment” was not a recognized basis for
affording relief under rule 60(b) so the amended claim should not
factor into the court’s consideration in entertaining the rule 60(b)
motion. And finally, the State argued that Peterson had not
proven that he had filed his “packet” when he said he did, and,
thus, that he had not established that he was entitled to relief
under rule 60(b)’s terms.

¶14 After the filings described above, the district court issued
an order denying Peterson’s request for the appointment of
postconviction counsel. At the outset of the order, the court first
recited some of the factors set forth in Utah Code section 78B-9-
109(1). The court then ruled that it would not appoint counsel
because it was “satisfied . . . that an evidentiary hearing [would]
not be required” and “the issues presented in the petition [were]
not complex and the petitioner appear[ed] to be fully capable of
presenting his claims in a clear and articulate manner.”

¶15 In April 2022, the court issued a ruling deciding both
Peterson’s rule 60(b) motion and the State’s motion for summary
judgment on the Brady claims.

¶16 With respect to the rule 60(b) motion, the court again
concluded that Peterson’s ineffective assistance of trial counsel
claims were procedurally barred because they “‘could have been
but [were] not raised in the trial court, at trial, or on appeal.’”
(Quoting Utah Code § 78B-9-106(1)(c).) Addressing the proposed
ineffective assistance of appellate counsel claim, the court put
“aside the question of whether a Rule 60(b) motion is a proper
vehicle for amending” a postconviction petition. Instead, the
court turned directly to the question of whether Peterson would
be entitled to rule 60(b) relief even if the motion to amend had
been granted. In the court’s view, he would not. The court
explained:




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                          Peterson v. State


       Missing from Peterson’s argument, however, is any
       explanation as to why the appellate counsel’s failure
       to discover the factual basis underlying his trial
       counsel claims “fell below an objective standard of
       reasonableness” or that “there is a reasonable
       probability that, but for [appellate] counsel’s
       unprofessional errors the result of the proceeding
       would have been different.” [(Quoting Strickland v.
       Washington, 

 (1984) (alteration
       in original).)] This would be fatal to his case even if
       the Court were to set aside its December [Ruling]
       and grant Peterson leave to amend the petition to
       include his ineffective assistance of appellate
       counsel claim.

¶17 With respect to the State’s motion for summary judgment
on the Brady claims, the court concluded that the State was
entitled to judgment as a matter of law. It thus dismissed those
claims. 3

¶18 After the court issued its final judgment, Peterson filed a
notice of appeal, which was accompanied by a request for the
appointment of postconviction appellate counsel. On temporary
remand from this court, the district court issued an order in which
it determined that the appointment of postconviction appellate
counsel was “appropriate given [Peterson’s] custody status and
the complexity of the issues.” In a footnote in that order, the court
“note[d] that counsel was not appointed at the trial court level as
the petition was summarily dismissed.”




3. As will be seen below, some of the filings relating to the
summary judgment motion are relevant to the issues before us.
But Peterson has not challenged the actual dismissal of his Brady
claims on appeal, so we do not set forth the basis for this ruling
further.


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                          Peterson v. State


            ISSUES AND STANDARDS OF REVIEW

¶19 On appeal, Peterson first challenges the district court’s
denial of his rule 60(b) motion. “We generally review a denial of
a rule 60(b) motion for abuse of discretion.” State v. Ogden, 

, 

. “But we review the legal conclusions
embedded in the district court’s denial of a rule 60(b) motion for
correctness.” 

 (quotation simplified). This includes a “district
court’s determination of whether a defense is meritorious.”
Metropolitan Water Dist. v. Sorf, 

, 

(quotation simplified).

¶20 Peterson next challenges the court’s denial of his request
for postconviction counsel. When such a request is “grounded in
the PCRA,” we review the court’s “denial of a motion to appoint
counsel for an abuse of discretion.” Carrell v. State, 

, 

 (quotation simplified), cert. denied, 

 (Utah 2023).


                            ANALYSIS

                     I. The Rule 60(b) Motion

¶21 In the December Ruling, the district court dismissed
Peterson’s ineffective assistance of trial counsel claims based on
its conclusion that they were procedurally barred. Peterson
subsequently filed what’s been treated as a rule 60(b) motion,
wherein he asked the court to vacate that ruling. As part of the
correspondence that the court treated as this motion, Peterson
also filed a motion to amend his postconviction petition to add an
ineffective assistance of appellate counsel claim. The district court
later denied the rule 60(b) motion. Peterson now challenges that
denial on appeal. For the reasons set forth below, we reverse.




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                          Peterson v. State


A.     Denial of the Rule 60(b) Motion

¶22 Under rule 60(b), a district court may set aside “a
judgment, order, or proceeding” when a party makes a timely
motion and asserts one of several enumerated bases. Utah R. Civ.
P. 60(b).

¶23 Peterson first argues that the district court erred by
essentially skipping two required steps. Under our precedent,
Peterson is correct. “To obtain relief under rule 60(b) of the Utah
Rules of Civil Procedure, a party must show that (1) the motion is
timely; (2) there is a basis for granting relief under one of the
subsections of 60(b); and (3) the movant has alleged a meritorious
defense.” Rojas v. Montoya, 

, 

(quotation simplified). “These considerations should be
addressed in a serial manner.” 

 (quotation simplified). “In other
words, there is no need to consider whether there is a basis for
setting aside a judgment if the motion was not made in a timely
manner.” Asset Acceptance LLC v. Stocks, 

, 

 (quotation simplified). “And it is unnecessary, and
moreover inappropriate, to even consider the issue of a
meritorious defense unless the court is satisfied that a sufficient
excuse has been shown.” 

 (quotation simplified); accord Swallow
v. Kennard, 

, 

; see also Board of
Educ. of Granite School Dist. v. Cox, 

 (Utah 1963)
(noting that the question of whether the movant proposed a
meritorious defense “arises only after consideration of” “why”
the movant “did not answer” and whether a “sufficient excuse”
has been shown).

¶24 In the district court’s ruling on Peterson’s rule 60(b)
motion, the court did not determine whether Peterson’s motion
was timely, nor did it determine whether he had provided a basis
for granting relief under any particular subsection of rule 60(b).
Instead, the court went directly to the third step, denying his
motion based on its assessment of the lack of merit of Peterson’s
ineffective assistance of trial and appellate counsel claims. By
doing so, the court failed to address the first two steps “in a serial



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                          Peterson v. State


manner” as set forth in our cases. Rojas, 

(quotation simplified). It thus exceeded its discretion. See Mintz v.
Mintz, 

, 

 (“[M]isapplication of
the law is a de facto abuse of discretion.”), cert. denied, 

 (Utah 2023).

¶25 In theory, however, this error could be deemed harmless if
we conclude that the district court acted within its discretion in
ruling that Peterson lacked a meritorious defense. See Utah R. Civ.
P. 61; see also Sabour v. Koller, 

, 

(“Even if the trial court exceeded its discretion . . . , an appellant
has the burden to show that the error was substantial and
prejudicial, meaning that the appellant was deprived in some
manner of a full and fair consideration of the disputed issues by
the trier of fact.” (quotation simplified)). But Peterson argues that
the court erred here too, and we agree.

¶26 Again, the third step of the rule 60(b) analysis considers
whether “the movant has alleged a meritorious defense.” Rojas,

 (quotation simplified). Our supreme court
has held that this step requires “a litigant seeking rule 60(b) relief
[to] proffer some defense of at least sufficient ostensible merit as
would justify a trial on the issue thus raised.” Menzies v. Galetka,

, 

 (quotation simplified). But “this
requirement does not set an overly burdensome threshold.”
Young v. Hagel, 

, 

 (quotation
simplified). Instead, the demonstration of a meritorious defense
“requires . . . only that a party state the basis for its claims or
defenses in short and plain terms.” Asset Acceptance, 

 (quotation simplified). “Utah jurisprudence is abundantly
clear that proof beyond allegations stating a claim or defense is
unnecessary.” Somer v. Somer, 

, ¶ 11 n.5, 

. “Thus, where a party presents a clear and specific proffer of
a defense that, if proven, would warrant relief by the claimant[,]
it has adequately shown a nonfrivolous and meritorious defense.”
Menzies, 

 (quotation simplified).




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                          Peterson v. State


¶27 In considering this step, the district court concluded that
none of Peterson’s claims were meritorious. To the extent that the
court concluded that Peterson’s ineffective assistance of trial
counsel claims were not meritorious, we readily agree. Under the
PCRA, a “petitioner is not eligible for relief under this chapter
upon any ground that . . . could have been but was not raised . . .
on appeal.” Utah Code § 78B-9-106(1)(c). “A claim could have
been raised—and therefore is subject to the procedural bar—
when a defendant or the defendant’s counsel is aware of the
essential factual basis for asserting it.” Modes v. State, 

, 

 (quotation simplified). The procedural bar
thus “applies to claims for ineffective assistance of trial counsel”
that could have been brought by appellate counsel. Gordon v. State,

, 

.

¶28 As indicated above, Peterson’s ineffective assistance of trial
counsel claims were each based on trial counsel’s failure to file a
motion in response to something that occurred at trial. The
essential factual bases for these claims would have therefore been
apparent to appellate counsel upon reviewing the trial transcript,
so these claims were accordingly subject to the procedural bar. As
a result, the district court did not err in concluding that these
claims failed under the third step.

¶29 But we see things differently with respect to Peterson’s
proposed ineffective assistance of appellate counsel claim. The
PCRA states that, “[n]otwithstanding” the procedural bar, “a
petitioner may be eligible for relief on a basis that the ground
could have been but was not raised . . . on appeal, if the failure to
raise that ground was due to ineffective assistance of counsel.”
Utah Code § 78B-9-106(3)(a). In this sense, while “the PCRA bars”
a petitioner’s “direct claims against trial counsel,” a petitioner
“can still assert those claims through the lens of an appellate
ineffectiveness claim.” McCloud v. State, 

, ¶ 38, 

 (quotation simplified); accord Modes, 

.

¶30 The district court acknowledged this, but it nevertheless
concluded that Peterson’s proposed appellate counsel claim was



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                          Peterson v. State


not meritorious because Peterson had not provided “any
explanation as to why the appellate counsel’s failure to
discover the factual basis underlying his trial counsel claims
‘fell below an objective standard of reasonableness,’” nor had
he shown that there was “‘a reasonable probability that, but
for [appellate] counsel’s unprofessional errors the result of
the proceeding would have been different.’” (Quoting
Strickland v. Washington, 

 (1984) (alteration in
original).)

¶31 But the district court required too much. As noted, for
purposes of the third step of the rule 60(b) analysis, “the
demonstration of a meritorious defense requires . . . only that a
party state the basis for its claims or defenses in short and plain
terms.” Asset Acceptance, 

 (quotation
simplified). And “Utah jurisprudence is abundantly clear that
proof beyond allegations stating a claim or defense is
unnecessary.” Somer, 

, ¶ 11 n.5.

¶32 Peterson did enough to satisfy this standard. In his motion
to amend, Peterson sought leave to “add[] a claim of ineffective
[assistance] of [appellate] counsel,” and he further cited Utah
Code section 78B-9-106(3)(a), explaining that “the [appellate]
counsel claim is the gateway to the otherwise procedurally barred
trial counsel claim.” With respect to his proposed amended claim,
Peterson alleged that his appellate counsel “did not do a proper
investigation in the appeal[]—such as raising the other claims that
were not discovered,” and he further alleged that appellate
counsel “should have discovered [these claims] with her
background and expertise.” Peterson also included a
memorandum of support in which he stated that he had
previously raised “grounds to the court that [appellate] counsel
should have had no problem discovering,” especially given that
appellate counsel “had more information” and “more legal
experience.” Peterson asserted that “not only was [appellate]
counsel ineffective by not raising all grounds possible,” but that
she had “hampered” him by not “providing all transcripts of trial




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                          Peterson v. State


proceedings” and seeking his input on potential arguments. 4
Peterson thus argued that appellate “counsel should have been
able to raise more grounds than what was in the brief.”

¶33 Despite all this, the State claims that Peterson did not
present a meritorious defense. The State offers two primary
reasons for this assertion.

¶34 First, the State suggests that Peterson’s proposed appellate
counsel claim was limited to the assertion that “appellate counsel
should have discovered the factual bases for his ineffective
assistance of trial counsel claims,” which the State views as being
“different from claiming that appellate counsel was ineffective for
not raising such claims on appeal.” (Emphases added.) We’re not
sure that there really is such a difference, much less a meaningful
one. Peterson was plainly seeking relief from his criminal
convictions, and he expressed his awareness of the legal doctrine
providing that an appellate counsel ineffectiveness claim is the
gateway for raising an otherwise procedurally barred claim. As a
result, when he faulted his appellate counsel for not discovering
certain claims, it stands to reason that he wasn’t proposing this as
a mere academic exercise in curiosity. Rather, Peterson was
suggesting that appellate counsel should have raised these claims
too.

¶35 In any event, as a matter of record, the State’s assertion
about the scope of Peterson’s argument is simply incorrect. In
addition to faulting appellate counsel for not “discovering” the
claims, Peterson alleged that appellate counsel was ineffective for
not “raising the other claims that were not discovered,” thus
expressly linking his discovery claims to his failure-to-raise
claims. And he further faulted appellate counsel for “not raising
all grounds possible” and not “rais[ing] more grounds than what


4. As noted above, Peterson was pro se when he later reviewed
the record and discovered the bases for the ineffective assistance
of trial counsel claims that he raised in his original postconviction
petition.


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                           Peterson v. State


was in the brief.” Thus, Peterson did ask for leave to argue that
his appellate counsel was ineffective for not raising these claims,
and the State’s proposed distinction fails.

¶36 Second, echoing the conclusion of the district court, the
State argues that Peterson’s proposed appellate counsel claim was
not meritorious because he did not sufficiently analyze how this
claim satisfied the Strickland standard. But again, for purposes of
this third step, Peterson was only required to “proffer . . . a
defense that, if proven, would warrant relief,” Menzies, 

 (emphasis added, quotation otherwise simplified), and
Peterson needed to simply state the “basis” for his claim “in short
and plain terms,” Asset Acceptance, 

(quotation simplified).

¶37 Peterson did just that. Peterson stated that he intended to
assert ineffective assistance of appellate counsel, he correctly
acknowledged that an ineffective assistance of appellate counsel
claim can act as the “gateway” to an otherwise barred claim, and
he faulted his appellate counsel for “not raising all grounds
possible” or “the other claims that were not discovered.” In light
of these filings, we conclude that Peterson did enough to satisfy
the third step of the rule 60(b) analysis. Because this was the sole
basis for the district court’s decision to deny his rule 60(b) motion,
we therefore reverse that decision and remand the case to the
district court for further proceedings.

B.     Proceedings On Remand

¶38 Given the somewhat unique procedural posture of this
case, we think it appropriate to note several things that remain
open for consideration by the district court on remand.

¶39 First, we’ve held that the district court erred by not ruling
on the first two steps of the rule 60(b) analysis. Although Peterson
has given us some briefing on why he believes he satisfied those
steps, we think that these decisions are best made by the district
court in the first instance. See, e.g., Metropolitan Water Dist. v. Sorf,



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                          Peterson v. State

, ¶ 23, 

 (remanding so the district court
could make findings on the first two steps); Sanders v. Sanders,

, ¶ 4 n.3, 

 (same). After all,
Peterson’s claim is heavily tied to his assertion that he mailed a
response to the court’s order to show cause in a timely fashion,
but this point is apparently in dispute. The district court is in a
much better position to judge the facts, so it should be first to
weigh in on those questions.

¶40 Thus, on remand, the district court should start by
determining whether Peterson’s rule 60(b) motion was timely. If
the court concludes that it was, the court should then determine
whether Peterson has provided some basis for granting relief
under one of the subsections of rule 60(b). And we note too that
“courts are generally encouraged to be indulgent toward setting
a judgment aside where there is reasonable justification or excuse
for the [movant’s] failure to answer.” Silva v. Silva, 

, 

 (quotation simplified); see also Menzies, 

 (“It is well established that 60(b) motions should be
liberally granted because of the equitable nature of the rule. . . .
Therefore, a district court should exercise its discretion in favor of
granting relief so that controversies can be decided on the merits
rather than on technicalities.”).

¶41 Second, if the court concludes that Peterson did file a
timely motion and that his motion provided some basis for relief
under rule 60(b) (thus satisfying the first two steps), the court
should then address a remaining question that has thus far been
assumed but not actually decided—whether Peterson should be
permitted to reopen the judgment to amend his petition. See
National Advert. Co. v. Murray City Corp., 

,

 (“In Utah, upon occurrence of a final adjudication,
and thereafter, a party may not file an amended complaint.
Instead, the party must move under rules 59(e) or 60(b) to reopen
the judgment.” (quotation simplified)). On this, the parties have
given us some briefing as to whether Peterson should be allowed
to amend his petition. But we decline to decide this in the first
instance.



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                         Peterson v. State


¶42 In a civil proceeding, “a party may amend its pleading only
with the court’s permission or the opposing party’s written
consent,” and “[t]he court should freely give permission when
justice requires.” Utah R. Civ. P. 15(a)(2). This standard is
“governed by a multi-factored, flexible inquiry that allows courts
the leeway to evaluate the factual circumstances and legal
developments involved in each particular case.” Lewis v. Nelson,

, 

 (quotation simplified); see also
Stichting Mayflower Mountain Fonds v. United Park City Mines Co.,

, 

 (“That standard gives little guidance.
More than anything, it underscores the breadth of discretion
given to district judges on the matter of amendment.”). Unless a
motion to amend is decided on futility, “we will not disturb such
a ruling absent a showing of an abuse of . . . discretion.” Shah v.
Intermountain Healthcare, Inc., 

, 

;
see also id. ¶ 9 (indicating “a motion to amend [is] futile if the
proposed amendment would not withstand a motion to dismiss”
and is thus a question of law reviewed for correctness (quotation
simplified)).

¶43 “The primary function of a standard of review is to
apportion power and, consequently, responsibility between trial
and appellate courts for determining an issue.” Widdison v.
Widdison, 

, 

 (quotation
simplified). As helpfully explained by the Tenth Circuit, the abuse
of discretion standard of review applies to the kinds of “judgment
call[s]” for which a district court is tasked with making. United
States v. Clark, 

 (10th Cir. 2013). When making
such judgment calls, district courts “consider a vast array of
contextually specific matters related to the way the proceedings
have advanced,” and the resultant decisions are those for which
“there will not necessarily be a single right answer, but a range of
possible outcomes the facts and law at issue can fairly support.”

 (quotation simplified). Once a district court has made a
discretionary decision, the appellate court defers to it unless “no
reasonable person would take the view adopted by the district
court.” State v. Gasper, 

, 

(quotation simplified).


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                          Peterson v. State


¶44 Thus, under both the express terms of the rule and our
interpretive caselaw, the decision of whether to grant a motion to
amend is a decision that’s left for a district court to make. But
while the parties have expressed their views about whether the
motion to amend should be granted, we don’t yet know whether
the district court will exercise its discretion to grant it. And
without that decision, we have nothing to review. We therefore
leave it to the court to decide this question in the first instance.

          II. Motion to Appoint Postconviction Counsel

¶45 Peterson next argues that the district court abused its
discretion when it declined to appoint postconviction counsel. In
Peterson’s view, the district court incorrectly determined that he
was not statutorily eligible for the appointment of postconviction
counsel and made a decision that was unreasonable anyway. We
disagree on both fronts.

A.     Eligibility

¶46 The PCRA states that “[i]f any portion of the petition is not
summarily dismissed, the court may, upon the request of an
indigent petitioner, appoint counsel . . . to represent the petitioner
in the postconviction court or on postconviction appeal.” Utah
Code § 78B-9-109(1)(a). 5 The statute then states that “in
determining whether to appoint counsel, the court may consider”
several factors, including “whether the petitioner is incarcerated,”
“the likelihood that an evidentiary hearing will be necessary,”
“the likelihood that an investigation will be necessary,” “the
complexity of the factual and legal issues,” and “any other factor
relevant to the particular case.” Id. § 78B-9-109(2)(a)–(e).

¶47 In the ruling in which it denied Peterson’s request for the
appointment of postconviction counsel, the court cited this statute


5. This statute was amended after the proceedings below. Because
the quoted text is the same in both versions, we cite the current
version.


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                          Peterson v. State


and then recited some of these factors, after which it stated that it
would not appoint counsel because it was “satisfied . . . that an
evidentiary hearing [would] not be required” and “the issues
presented in the petition [were] not complex and the petitioner
appear[ed] to be fully capable of presenting his claims in a clear
and articulate manner.” The court thus invoked the correct statute
and made a determination under the proper scheme.

¶48 On appeal, however, Peterson claims that the court’s
decision was based on a fundamental misunderstanding of law.
Namely, in Peterson’s view, the district court incorrectly believed
that he was not actually eligible for the appointment of
postconviction counsel at all. The basis for this assertion requires
some explanation. As noted, the governing statute allows the
court to appoint postconviction counsel “[i]f any portion of the
petition is not summarily dismissed . . . .” 

 § 78B-9-109(1)(a)
(emphasis added). Although, as explained, the district court here
considered and denied Peterson’s request for the appointment of
postconviction counsel during the proceedings before it, Peterson
points out that in the order in which it later granted his request
for the appointment of postconviction appellate counsel, the court
indicated in a footnote that “counsel was not appointed at the trial
court level as the petition was summarily dismissed.” (Emphasis
added.) Pointing to this reference, Peterson now surmises that the
district court must have thought that he was ineligible for the
appointment of postconviction counsel in the earlier stages
because it had been “summarily dismissed.”

¶49 In the briefing on this question, the parties both agree that,
for purposes of section 78B-9-109(1)(a)—which, again, is the
statute governing the appointment of counsel in a postconviction
case—the term “summarily dismissed” refers to the frivolity
review that a district court is required to undertake pursuant to
rule 65C. We do too. As noted, rule 65C governs postconviction
proceedings, and that rule includes a subsection entitled
“Summary Dismissal of Claims,” which then sets forth the process
for the initial frivolity review. Utah R. Civ. P. 65C(h)(1). Thus, for
purposes of the section 78B-9-109(1)(a) appointment of counsel



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                          Peterson v. State


decision, we agree that a petitioner is eligible for the appointment
of postconviction counsel after a district court conducts the initial
review and concludes that the petitioner has presented nonfrivolous claims.

¶50 But even so, Peterson has not persuaded us that the district
court somehow thought that he was ineligible to receive counsel
here. After all, when the court issued the ruling in which it denied
Peterson’s request for the appointment of postconviction counsel,
the court never said that it thought he was ineligible. To the
contrary, the court cited the correct statute, recited a couple of the
factors, analyzed those factors, and then denied the request based
on its analysis of those factors. By doing so, the court expressly
contemplated that Peterson was eligible for the appointment of
postconviction counsel, but the court simply concluded that the
appointment of counsel was not warranted under the
circumstances of this case. If the court had believed Peterson was
ineligible to receive counsel at all, it would have had no reason to
address these factors.

¶51 The court’s subsequent statement that “counsel was not
appointed at the trial court level as the petition was summarily
dismissed” does not persuade us that the court had previously
been confused about this. And here, we think the alleged
disconnect is explainable by the fact that the phrase at issue—
“summarily dismissed”—can have different meanings depending
on the context. The word “summarily” is the adverb-form of the
word “summary,” and it can refer to proceedings that are
“quickly executed,” as well as those that relate to a “summary
proceeding.” 6 When used in these fashions, courts and litigants
alike sometimes colloquially say that a court “summarily”
rejected a claim if the court did so quickly or without proceeding
all the way to trial.



6. Summary, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/summarily [https://perma.cc/2Y56‑EM2
D].


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                          Peterson v. State


¶52 Our decision in Perea v. State, is illustrative. 

, 

. There, after a petitioner filed a postconviction
factual innocence petition, the district court granted the State’s
request for summary judgment. Id. ¶ 6. When the petitioner
appealed, we described his argument as being that the district
court erred in “summarily dismissing his factual innocence
petition without holding an evidentiary hearing.” Id. ¶ 7. In this
sense, we used the phrase “summarily dismiss[ed]” to refer to a
summary judgment ruling, and there are other cases in which our
court did the same thing. See, e.g., Walker v. Zeus Land Holdings
LLC, 

, 

; Barnes v. Clarkson, 

, ¶ 17 n.7, 

. In addition, there are other
appellate decisions in which our courts have used some form of
the phrase “summarily dismissed” to refer to decisions that were
made without taking evidence. See, e.g., Ward v. McGarry, 

, 

 (“Ward asserts that the district court
erred in approving the commissioner’s recommendation and
summarily denying her objection without adequate findings and
without a trial or other evidentiary hearing.”); Red Bridge Cap. LLC
v. Dos Lagos LLC, 

, 

(“Defendants contend that the district court erred . . . in
summarily denying their motion for satisfaction without taking
evidence or articulating grounds for the denial.”); Goodmansen v.
Liberty Vending Sys., Inc., 

, 584 n.2 (Utah Ct. App. 1993)
(noting that “[s]ettlement agreements may be summarily enforced
without an evidentiary hearing”).

¶53 Here, when the district court noted, in its decision to
appoint postconviction appellate counsel, that it had not
appointed postconviction trial counsel because it had “summarily
dismissed” the petition, we think the context indicates that the
court was using the phrase “summarily dismissed” in this other
sense—i.e., the court was noting that it had dismissed the petition
on legal grounds without holding an evidentiary hearing, as
opposed to the very particular sense in which that same phrase is
used in Utah Code section 78B-9-109(1)(a). But regardless, in light
of the fact that the earlier ruling had assessed Peterson’s request
for postconviction counsel on its own substantive terms, we see


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                         Peterson v. State


no basis for using this offhand comment to reverse engineer the
prior ruling and now add confusion into that ruling that didn’t
previously exist. We therefore reject this argument.

B.     Abuse of Discretion

¶54 Separate from the eligibility question, Peterson argues that
the district court abused its discretion by denying his request for
postconviction counsel. We disagree.

¶55 As noted, the court denied Peterson’s request for the
appointment of postconviction counsel, explaining that it was
“satisfied” that “an evidentiary hearing [would] not be
required,” “the issues presented in the petition are not complex,”
and Peterson “appear[ed] to be fully capable of presenting
his claims in a clear and articulate manner.” This was based on
two of the factors provided in Utah Code section 78B-9-109(2),
which do indeed suggest that a court may look to whether an
evidentiary hearing was required and the complexity of the
issues.

¶56 It is a “well-settled principle that there is no
constitutionally or statutorily guaranteed right to counsel when
defendants elect to pursue collateral attacks on their convictions.”
Zaragoza v. State, 

, ¶ 17 n.4, 

(quotation simplified); see also Carrell v. State, 

, 

 (“Neither the right to state-paid counsel nor the
right to effective assistance of counsel is constitutionally or
statutorily guaranteed in postconviction proceedings.” (quotation
simplified)), cert. denied, 

 (Utah 2023). “Under the
express terms of the governing statute, a district court enjoys wide
latitude regarding whether to appoint counsel in a post-conviction case.” Zaragoza, 

 (noting both the
permissive use of the word “may” in the statute and the factorbased approach). “In this context, our supreme court has
instructed that a postconviction court abuses its discretion only if
its decision was beyond the limits of reasonability, an event which
occurs when the court has taken actions that are inherently unfair



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                          Peterson v. State


or that no reasonable person would take.” Carrell, 

 (quotation simplified). 7

¶57 In Carrell, we recently considered a similar challenge to a
district court’s decision to deny two requests for the appointment
of postconviction counsel. See id. ¶ 38. There, the district court had
denied Carrell’s requests for counsel based on the low likelihood
of an evidentiary hearing and its conclusion that the issues were
not complex. See id. ¶¶ 39–41. Carrell challenged those denials on
appeal, arguing that ineffective assistance of counsel claims are
inherently complex, the PCRA is replete with “statutory rules and
procedural minefields,” and “the State is typically represented in
such cases by attorneys who are well versed in the law in general
and the PCRA in particular.” Id. ¶ 42 (quotation simplified).

¶58 While acknowledging these concerns, we nevertheless
affirmed. We explained:




7. In Carrell v. State, this court reviewed the 2020 version of this
statute. See 

, 

, cert. denied, 

 (Utah 2023). And in Zaragoza v. State, this court referenced
the 2012 version. See 

, 

. Before
2021, the statute included only two factors that a court could
consider in deciding to appoint counsel: “whether the petition or
the appeal contains factual allegations that will require an
evidentiary hearing” and “whether the petition involves
complicated issues of law or fact that require the assistance of
counsel for proper adjudication.” Utah Code § 78B-9-109(2)
(2020). In 2021, the statute was amended to list five factors,
including a catch-all provision that allows the district court to
consider “any other factor relevant to the particular case.” Id.
§ 78B-9-109(2)(a)–(e) (2021). As with the prior versions, the statute
introduces the list of factors with the permissive “may”—i.e., it
states that a district court “may consider” the listed factors. As a
result, the recent additions reinforce the discretionary nature of
this decision.


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                          Peterson v. State


       The things that Carrell is pointing to—the legal
       complexity of an ineffective assistance claim, the
       procedural hurdles posed by the PCRA, [and] the
       litigation advantages enjoyed by the State . . . —all
       exist in virtually every postconviction case. Yet if the
       legislature believed that the collective complexity
       caused by these things means that a postconviction
       petitioner must be provided with counsel . . . , the
       legislature would have written a statute under
       which the appointment of counsel is at some point
       mandatory. But the legislature didn’t. . . .

              This isn’t to say that a postconviction court
       can’t choose to appoint counsel anyway. Since a
       court has discretion to deny a request for counsel, it
       of course also has discretion to grant one, and we
       express no view here as to whether a postconviction
       court should (or should not) ordinarily grant such a
       request. But since the legislature has seen fit to place
       this decision in the hands of the postconviction
       courts, the question before us is simply whether this
       court abused its discretion in this case.

 ¶¶ 43–44.

¶59 Peterson’s arguments are similar to those that were raised
by Carrell in his appeal. Like Carrell, Peterson argues that PCRA
petitions are inherently complex, he laments his lack of familiarity
with legal rules, and he points out that as an incarcerated inmate,
he’s impaired in his ability to access information and other
resources. But, as in Carrell, we again note that these perceived
imbalances are likely present in most (if not virtually all)
postconviction cases, and yet the legislature has still left this
decision to the discretion of district courts. To the extent that
Peterson’s arguments are based on systemic concerns, we thus
perceive no abuse of the court’s discretion.




 20220765-CA                     23               

                         Peterson v. State


¶60 Cognizant of this, and with the benefit of appointed
appellate postconviction counsel, Peterson offers two additional
case-specific reasons why, in his view, the district court should
have granted his request for postconviction counsel.

¶61 First, Peterson points out that in the State’s reply to its
motion for summary judgment, it referred to his pro se opposition
memorandum as having consisted of “largely incomprehensible
or otherwise unreadable marginalia and editorial remarks.” In
Peterson’s view, this constituted an admission by the State that he
was not capable of representing himself, and from this, Peterson
argues that the district court abused its discretion by not
appointing postconviction counsel.

¶62 When the State referred to Peterson’s “marginalia and
editorial remarks,” this was an apparent reference to the fact that,
in his opposition, Peterson had added handwritten responses and
commentary in the margins of various attached documents. With
this comment, the State was clearly meaning to deride the quality
of Peterson’s response. But we nevertheless don’t agree that the
district court was required to conclude that Peterson was
incapable of representing his own interests. Peterson’s opposition
to the State’s summary judgment was nine full pages, it was
responsive in various points to the State’s arguments, and it was
supported by reference to various laws and portions of the record.
In light of the “wide latitude” the district court has in deciding
whether to appoint counsel, Zaragoza, 

, we
disagree with Peterson’s assertion on appeal that the district court
was required to appoint him counsel on this basis.

¶63 Second, Peterson suggests that there is an irreconcilable
disconnect between the district court’s decisions to deny his
request to appoint postconviction counsel but then grant his
request for the appointment of postconviction appellate counsel.
But Peterson has provided no authority (and we are aware of
none) that requires these decisions to be made in lockstep. And
indeed, Peterson’s postconviction appellate counsel conceded at
oral argument that he was not advocating for such a rule. While



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                          Peterson v. State


we have no need to set forth the full parameters by which a court
could view the two decisions differently, we note that there are
indeed some differences between district court and appellate
court proceedings. Certain rules apply on appeal that do not
apply at the district court level (preservation, for example, as well
as certain rules relating to the formation and use of the record).
And the mechanics of briefing in general and argument in
particular are different too. Compare Utah R. Civ. P. 7, with Utah
R. App. P. 24. Without something more, Peterson has not
persuaded us that the district court’s decision to deny his request
for postconviction counsel was fundamentally inconsistent with
its decision to later appoint postconviction appellate counsel,
much less that a ruling from us linking the two decisions would
actually work to his benefit.

¶64 In sum, we conclude that when the district court denied
Peterson’s request for the appointment of postconviction counsel,
it did so based on an assessment of the discretionary factors set
forth in the PCRA. Peterson has not persuaded us that the court’s
resultant decision was “inherently unfair” or one “that no
reasonable person would take.” Carrell, 

(quotation simplified). We therefore affirm this decision.


                          CONCLUSION

¶65 For the reasons set forth above, we reverse the district
court’s denial of Peterson’s rule 60(b) motion, but we reject
Peterson’s challenge to the district court’s denial of his request for
appointed postconviction counsel. We remand for further
proceedings consistent with this opinion.




 20220765-CA                     25