Logue v. State

                THE UTAH COURT OF APPEALS

                      DANNY LEROY LOGUE,
                          Appellant,
                              v.
                        STATE OF UTAH,
                          Appellee.

                              Opinion
                         No. 20230054-CA
                      Filed February 27, 2025

            Fourth District Court, Provo Department
                The Honorable Derek P. Pullan
                         No. 190401729

               Mark R. Gaylord and William Lasker,
                     Attorneys for Appellant
                Derek E. Brown and Mark C. Field,
                     Attorneys for Appellee

   JUDGE GREGORY K. ORME authored this Opinion, in which
 JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
                        concurred.

ORME, Judge:

¶1     In yet another “chapter in an ongoing saga,” State v. Logue
(Logue II), 

, ¶ 1 n.1, 

, cert. denied, 

 (Utah 2018), Danny Leroy Logue appeals the district
court’s dismissal of his petition brought under Utah’s
Post-Conviction Remedies Act (PCRA). Logue argues the court
erred in determining that (1) the recantation of a witness’s
testimony was not “newly discovered material evidence” and
(2) his claim regarding appellate counsel’s failure to further
investigate the witness was procedurally improper and also failed
on the merits. We disagree and affirm.
                           Logue v. State


                         BACKGROUND

¶2      After fatally shooting a suspected informant (Victim) in
“an act of retaliation,” Logue was convicted of aggravated
murder, possession of a firearm by a restricted person, and
obstruction of justice. Logue II, 

, ¶ 1 & n.1, 

, cert. denied, 

 (Utah 2018). “There was very
little physical evidence . . . to connect Logue to Victim’s death
because officers were unable to recover the weapon used to kill
Victim.” Id. ¶ 7. So “most of the State’s evidence came from
witnesses with knowledge of Logue’s involvement in the
shooting.” Id.

¶3     Logue’s girlfriend (Girlfriend) testified at trial that Logue
“stash[ed]” a gun at her home and that, the day before the murder,
he asked her to buy bullets. A receipt entered into evidence
showed a cash transaction for .32 caliber bullets—the same caliber
that was found at the scene of the murder. Girlfriend testified that
Logue and his accomplice, Darrell Wayne Morris, told her that
“they were going to beat somebody up.” She recalled meeting
Logue and Morris at a gas station later that night, which security
footage confirmed. She testified that the next day, Logue told her,
“We killed someone last night.” She also related a sequence of
events in which Logue disposed of a gun, although she never saw
it. And she testified that Morris’s girlfriend told her that,
according to Morris, Logue “drew out the gun and shot” Victim.

¶4     Morris’s girlfriend testified that Morris had agreed to “beat
up” Victim for a drug dealer in exchange for methamphetamine.
She recalled the drug dealer driving her and Morris by Victim’s
house. And she testified that Morris had asked Logue to “help
him.” She also testified that after she saw Logue with a gun
shortly before the murder, he told her “that he was going to take
the gun” and that “he would be holding it” “for protection.” She
recalled seeing Logue leave with Morris to find Victim and later
picking them up from the gas station with Girlfriend. She testified



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                           Logue v. State


that the next day, she saw a news report on a shooting at the house
the drug dealer had shown them. And she recalled that after she
asked Morris what happened, he told her, “[Logue] shot him.”
That day, she went with Morris to pick up the rest of the meth he
was promised. And she testified that Morris had given Logue
some of that meth.

¶5      Logue himself admitted to being with Morris in the area of
the murder and being picked up from the gas station. Cell phone
records placed Morris in the area. Logue testified that he had used
methamphetamine with Morris shortly after the murder. He also
testified that he traded a gun for more drugs around that same
time.

¶6      Brandon Wright, who had become friendly with Logue
while they were in the same prison cell block, testified that Logue
had admitted to shooting Victim. Logue v. Court of Appeals (Logue
I), 

, 

 (per curiam). Wright specified that
Logue had told him that he “drew down and shot the guy” and
admitted to pulling the trigger. Wright also asserted that he had
never read any police reports or legal documents pertaining to the
murder before the trial. Evidence of Wright’s “lengthy criminal
record, including his prior gang affiliation,” was also introduced
during the trial. 

¶7      Logue appealed his convictions, arguing the trial court 1
erroneously denied various motions and challenging the
constitutionality of the applicable sentencing scheme. Logue II,

, ¶¶ 12–14, 

, cert. denied, 

 (Utah 2018). While Logue’s direct appeal was pending,
Wright confessed to an unrelated, decades-old murder committed
in the state of Washington. Logue I, 

. After this court


1. We refer to the court in which Logue’s trial took place as the
“trial court” and the post-conviction court as the “district court.”
Both proceedings were conducted by the same judge.


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                          Logue v. State


denied Logue’s subsequent motion to stay his appeal, he
petitioned our Supreme Court for extraordinary relief, arguing
Wright’s confession cast serious doubt on the credibility of
Wright’s trial testimony and thereby entitled him to a new trial
before the exhaustion of his direct appeal. Id. ¶ 4. The Court
denied Logue’s petition, concluding Wright’s credibility would
not “have been significantly affected by the additional
information that he had committed an unsolved serious crime” as
“the jury knew that Mr. Wright had a lengthy criminal record.”
Id. ¶ 6. In Logue’s direct appeal, this court affirmed his
convictions. Logue II, 

.

¶8      Wright—who has since been incarcerated in Washington—
later sent a letter to the trial court requesting the contact
information of both the prosecutor and Logue’s trial counsel and
stating, “I lied in my testimony against [Logue] on the stand and
need to let both attorneys know.” Receiving no response, Wright
sent another letter to the court in which he stated, “I lied in my
testimony against [Logue] during his 1st Degree Murder trial for
which he was convicted[.]” The court issued a notice of ex parte
communication, explaining it would not consider Wright’s letters
unless they complied with procedural rules. Wright eventually
sent a letter to Logue’s appellate counsel in which he admitted, “I
lied to the authorities and on the stand at [Logue’s] 1st Degree
Murder trial in two respects.” First, he stated, “[Logue] did not
admit to me that he killed the victim.” And second, he stated, “I
read all of his case-specific legal material prior to appearing in
court.”

¶9     In January 2020, Logue filed a pro se PCRA petition and
then an amended petition raising over forty grounds for relief,
including claims regarding Wright’s confession to the
decades-old murder and recantation of his trial testimony, as well
as several claims of ineffective assistance of trial and appellate
counsel. The State moved for summary judgment on all of Logue’s
claims, arguing, in relevant part, that he could not show that he



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                           Logue v. State


was prejudiced by Wright’s trial testimony as there was an
abundance of evidence establishing Logue’s guilt. The State also
argued that Logue’s ineffective assistance of appellate counsel
claims failed because they were unsupported and conclusory.

¶10 Logue opposed the State’s motion and filed an affidavit in
which Wright admitted, “Logue never told me that he shot
[Victim] or that he pulled the trigger.” Wright also admitted that
he had read case documents before testifying at trial. Later, and
now represented by counsel, Logue submitted a memorandum in
opposition to the State’s motion for summary judgment. With the
assistance of counsel, Logue narrowed his arguments, contending
that the effect of Wright’s recantation was a disputed material fact
that precluded summary judgment. He also argued that appellate
counsel was ineffective for failing to further investigate Wright’s
confession, which Logue urged would have led to an earlier
recantation that Logue could have raised in his petition for
extraordinary relief. As the district court later noted, some of the
claims in Logue’s PCRA petition were “difficult to ascertain” and
the State had “put forth extraordinary effort to summarize” them
in its motion for summary judgment. But the court also noted that
Logue did not object “to the State’s summarization” or make any
“comment or objection to the State’s efforts” to characterize the
claims.

¶11 After argument, the district court granted summary
judgment to the State. The court concluded that Wright’s
recantation of his trial testimony was not “newly discovered
material evidence” entitling Logue to relief under the PCRA
because “a reasonable jury could have found Logue guilty even
without Wright’s testimony.” In other words, “the newly
discovered evidence does not sustain the conclusion that no
reasonable trier of fact could have found Logue guilty.”

¶12 The court then addressed Logue’s argument that his
appellate counsel was ineffective for failing to investigate



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                          Logue v. State


Wright’s murder confession, which investigation Logue urged
would have led Wright to recant his incriminating testimony
earlier. The court found that Logue had improperly raised this
claim for the first time in his memorandum opposing summary
judgment rather than in his PCRA petition. But the court
addressed the merits of the claim anyway, concluding that
appellate counsel had not rendered ineffective assistance in
failing to investigate Wright’s confession. The court concluded
that appellate counsel’s performance was not deficient because it
was “mere speculation that further investigation about Wright’s
confession to an unrelated murder would have also revealed that
Wright had lied about Logue’s admission to killing [Victim].” The
court further determined that even if this were deficient
performance, “[g]iven the totality of the evidence inculpating
Logue,” he could not demonstrate prejudice. With no claims
remaining, the court dismissed Logue’s petition.

¶13   Logue appeals.


            ISSUES AND STANDARDS OF REVIEW

¶14 Logue argues the district court erred in dismissing
his PCRA petition on summary judgment. “We give no
deference to the district court in reviewing its grant of
summary judgment or its order denying a petition for
post-conviction relief” and “review such rulings for correctness.”
Jones v. State, 

, 

. And “we will
affirm the grant of summary judgment when the record shows
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” 

(quotation simplified). “In making this assessment, we view the
facts and all reasonable inferences drawn therefrom in the light
most favorable to . . . the nonmoving party.” 

 (quotation
simplified).




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                           Logue v. State


                            ANALYSIS

¶15 “The PCRA provides post-appeal means for challenging a
prior conviction” on various grounds. Pinder v. State, 

,
¶ 21, 

. Logue challenges the district court’s dismissal
of his claims, raising two of these grounds. First, he argues
Wright’s recantation was “newly discovered material evidence”
that required the court to vacate his convictions. See Utah Code
Ann. § 78B-9-104(1)(e) (LexisNexis 2022). And second, he argues
appellate counsel’s failure to further investigate Wright’s
confession to an unrelated murder constituted ineffective
assistance of counsel. See id. § 78B-9-104(1)(d). Both claims are
unavailing.

             I. Newly Discovered Material Evidence

¶16 A petitioner may seek relief under the PCRA based on the
existence of “newly discovered material evidence . . . that requires
the court to vacate the conviction or sentence.” Id.
§ 78B-9-104(1)(e). To qualify as “newly discovered” and
“material,” the evidence must meet the following four
requirements:

       (i) neither the petitioner nor petitioner’s counsel
       knew of the evidence at the time of trial or
       sentencing or in time to include the evidence in any
       previously filed post-trial motion or postconviction
       proceeding, and the evidence could not have been
       discovered through the exercise of reasonable
       diligence;

       (ii) the material evidence is not merely cumulative
       of evidence that was known;

       (iii) the material evidence          is   not   merely
       impeachment evidence; and




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                             Logue v. State


       (iv) viewed with all the other evidence, the newly
       discovered material evidence demonstrates that no
       reasonable trier of fact could have found the
       petitioner guilty of the offense or subject to the
       sentence received[.]

 § 78B-9-104(1)(e)(i)–(iv).

¶17 Logue argues the district court erred in concluding that “a
reasonable jury could have found [him] guilty even without
Wright’s testimony” and thus “the newly discovered evidence” of
Wright’s recantation “does not sustain the conclusion that no
reasonable trier of fact could have found Logue guilty.” 2

¶18 The district court reached this conclusion following our
Supreme Court’s lead in Pinder v. State, 

, 

,
wherein the Court held that “evidence is . . . ‘merely
impeachment’ evidence if it is insufficient to sustain the
conclusion that ‘no reasonable trier of fact could have found the
petitioner guilty.’” 

 ¶ 33 (quoting the version of Utah Code
Ann. § 78B-9-104(1)(e)(iii)–(iv) then in effect). This holding
appears     to    blur      the   requirements     of   subsections
78B-9-104(1)(e)(ii), (iii), and (iv), rather than considering them


2. Logue also suggests that Wright’s recantation poses due
process problems. And he challenges the constitutionality of the
PCRA itself. Our preservation rule requires issues to be
“presented to the district court in such a way that the court has an
opportunity to rule on” them. Winward v. State, 

,

 (quotation simplified). But Logue did not raise these
issues below and so the district court did not address them. Nor
does he urge us to review them under a preservation exception.
Accordingly, we do not address these claims further. See 

 (“If
an argument is unpreserved, we will not address it for the first
time on appeal unless the party can prove either plain error or
exceptional circumstances.”).


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                            Logue v. State


separately as the statute contemplates. But here, whether
considered under subsection (ii), (iii), or (iv), we readily agree that
Logue has not demonstrated that Wright’s recantation, “when
viewed with all the other evidence,” would have such great effect
that “no reasonable trier of fact could have found [Logue] guilty.”
See Mulder v. State, 

, 

 (quotation
simplified), cert. denied, 

 (Utah 2017).

¶19 Evidence showed Logue and Morris agreed to “beat up”
Victim in exchange for meth. Logue stored a gun at Girlfriend’s
house and instructed her to buy bullets the day before the murder.
After Morris’s girlfriend saw Logue with a gun, he told her he
would have it when he encountered Victim. Logue admitted to
being with Morris at the time of the murder, and cell phone
records place Morris near the scene of the crime around the time
of the murder. Both Logue and Morris told others that they had
killed Victim—with Morris implicating Logue as the shooter. And
there was evidence that Logue disposed of a gun shortly after the
murder. In our previous opinion on Logue’s direct appeal, we
concluded there was sufficient evidence to convict him of
aggravated murder. Significantly, we did so without any
reference whatsoever to Wright’s trial testimony. See Logue II, 

, 

, cert. denied, 

 (Utah
2018). In other words, we saw sufficient evidence to support the
conviction totally aside from Wright’s testimony. 3 This evidence
is also sufficient for a reasonable trier of fact to conclude that
Logue was guilty of the possession offense and obstruction of
justice. See 

(2)(a) (LexisNexis 2011)
(possession of a firearm by a restricted person); 

 § 76-8-306(1)


3. At the time of Logue’s direct appeal, we were aware only that
Wright had confessed to an unrelated murder—not that he had
recanted his testimony. We concluded there was sufficient
evidence to convict Logue without any mention of Wright’s
testimony whatsoever, so even had we been aware of the
recantation, this distinction would not have changed our calculus.


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                           Logue v. State


(obstruction of justice). Thus, in light of this other evidence,
Wright’s recantation was unlikely to have changed the outcome
of Logue’s trial. Accordingly, the district court correctly
concluded the recantation was not “newly discovered material
evidence” warranting relief under the PCRA. 4

          II. Ineffective Assistance of Appellate Counsel

¶20 The PCRA also provides for relief from a conviction where
“the petitioner had ineffective assistance of counsel in violation of
the United States Constitution or Utah Constitution.” Utah Code
Ann. § 78B-9-104(1)(d) (LexisNexis 2022). Logue argued in his
opposition to the State’s motion for summary judgment that had
his appellate counsel investigated Wright’s confession to the


4. Logue also argues the district court denied him an evidentiary
hearing to determine the effect of Wright’s recantation and, thus,
there remained a disputed material fact precluding summary
judgment. But here, viewing the facts in the light most favorable
to Logue as the nonmoving party, the district court assumed
Wright’s recantation was credible, negating the need for a
hearing. The effect of that recantation—i.e., whether it would
have changed the outcome of the trial—was a question of law, not
one of fact that would have precluded summary judgment. These
claims thus fail.
   Logue additionally contends that he would not have testified in
his own defense but for Wright’s testifying for the State. He has
failed to carry his burden of persuasion on this point. See Pinder v.
State, 

, ¶ 36, 

 (“The mere possibility that
new evidence might have helped the defense or might have
affected the outcome is insufficient to merit relief under the
PCRA.”) (quotation simplified). And as Logue II, 

,

, cert. denied, 

 (Utah 2018), makes clear,
Logue had much adverse testimony to refute separate and apart
from Wright’s testimony, which was not even referenced in that
opinion. See id. ¶ 21.


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                           Logue v. State


Washington murder, Wright would have been prompted to recant
his trial testimony earlier, which would have strengthened
Logue’s petition for extraordinary relief that our Supreme Court
considered in Logue I, 

, 

 (per curiam). The
district court dismissed Logue’s ineffective assistance claim,
concluding that raising it for the first time in his opposition to the
State’s motion for summary judgment rather than in his PCRA
petition was improper. Although it dismissed the claim on this
basis, the court also determined that the claim failed on the merits.
Logue challenges both conclusions.

¶21 “To prevail on an ineffective assistance of counsel claim
under the PCRA,” Logue “must meet his burden of proof on the
two elements of Strickland v. Washington, 

 (1984).”
Jones v. State, 

, 

. “Under
Strickland, [Logue] must first establish that his counsel rendered
deficient performance in that counsel’s representation fell below
an objective standard of reasonableness.” Id. ¶ 35 (quotation
simplified). “Second, [he] must establish that the deficient
performance prejudiced the defense, which means that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. ¶ 36 (quotation simplified).

¶22 We are not persuaded that appellate counsel’s failure to
investigate     Wright’s    confession      constituted     deficient
performance. Logue asserts that “the need for such investigation
was glaringly obvious from the trial record.” But it hardly seems
obvious that counsel would need to investigate Wright’s
confession to an unrelated, decades-old murder in Washington
when the record was already replete with Wright’s extensive
criminal history. And whether this investigation would have
prompted Wright to also admit to perjury and recant his
testimony at that time is entirely speculative. “Proof of ineffective
assistance of counsel cannot be a speculative matter but must be a
demonstrable reality.” Id. (quotation simplified).



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                           Logue v. State


¶23 In any event, the district court dismissed this ineffective
assistance claim, citing Lafferty v. State, 

, 

,
overruled on other grounds by McCloud v. State, 

, 

, in which our Supreme Court recognized that “[r]aising an
issue for the first time in a memorandum opposing summary
judgment without showing good cause violates the pleading
requirements for post-conviction petitions.” Id. ¶ 23. See also Fuja
v. Woodland Hills, 

, 

 (“Where a
claim is absent from the initial pleadings and appears for the first
time in response to a summary judgment motion, we do not
consider it.”); Jensen v. Skypark Landowners Ass’n, 

, 

 (“The trial court correctly declined to consider
claims raised for the first time in response to a summary judgment
motion.”), cert. denied, 

 (Utah 2013). Although he
urges otherwise, Logue raised this ineffective assistance claim
against appellate counsel for the first time in his opposition to the
State’s motion for summary judgment, and he made no attempt
to justify this tardiness. Doing so violated the pleading
requirements for PCRA petitions under the Utah Rules of Civil
Procedure, see Lafferty, 

, and we affirm the district
court’s dismissal of the claim.


                          CONCLUSION

¶24 The district court correctly concluded that Wright’s
recantation was not “newly discovered material evidence”
warranting relief under the PCRA as the applicable provision has
been interpreted. The court also correctly concluded that Logue’s
ineffective assistance claim against appellate counsel was
improperly raised for the first time in his opposition to the State’s
motion for summary judgment. Accordingly, we see no error in
the court’s dismissal of these claims. We thus affirm the grant of
summary judgment to the State on Logue’s PCRA petition.




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