Alvarez v. Galetka

933 P.2d 987, 312 Utah Adv. Rep. 10, 1997 Utah LEXIS 22, 1997 WL 97356

• Court: Utah Supreme Court
• Decided: March 7, 1997
• Docket: 950547
• Status: Published

Opinions

RUSSON, Justice:

I. INTRODUCTION

Fred A. Alvarez appeals the district court’s dismissal of his habeas corpus petition for failure to state a claim for which relief can be granted under rule 12(b)(6) of the Utah Rules of Civil Procedure. We affirm in part, reverse in part, and remand for further proceedings.

II. BACKGROUND

Alvarez was convicted of first degree murder, pursuant to Utah Code Ann. § 76-5-202(l)(b) (1990), as a result of his involvement in a fight that resulted in the stabbing deaths of Don and Shayne Newingham in June 1990.¹ Alvarez was sentenced to life imprisonment, augmented by a twenty-year enhancement pursuant to the gang enhancement provision of Utah Code Ann. § 76-3-203.1 (Supp.1992).

Following the trial, Alvarez retained a different attorney to appeal his conviction to this court. In that appeal, Alvarez challenged, among other things, the trial judge’s response to a jury inquiry during deliberations² and the constitutionality of the gang enhancement provision. In State v. Alvarez, 872 P.2d 450 (Utah 1994), in the process of affirming his conviction, this court concluded that Alvarez’s trial attorney had failed to preserve for review the challenges to the jury instruction and the gang enhancement provision. 872 P.2d at 460.

Alvarez subsequently retained a third attorney and filed a habeas corpus petition, claiming ineffective assistance of counsel at both the trial and the appellate levels. Alvarez claimed that his trial attorney was ineffective because he (1) failed to investigate certain witnesses who allegedly could provide testimony favorable to Alvarez, (2) failed to preserve for review the challenge to the jury instruction, (3) failed to preserve for review the challenge to the gang enhancement provision, and (4) failed to preserve, for purposes of a Batson v. Kentucky claim, the identity of allegedly Hispanic jurors peremptorily struck from the jury panel.³ Alvarez further claimed that his appellate counsel was ineffective because he did not argue trial counsel’s ineffectiveness in failing to preserve for appeal the jury instruction and gang enhancement challenges. Alvarez requested an evidentiary hearing on his claim that trial counsel inadequately investigated the homicide.

The State responded by moving to dismiss Alvarez’s petition for, among other reasons, failure to state a claim for which relief can be granted pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure.⁴ In October 1995, the habeas court granted the State’s motion and dismissed Alvarez’s habeas petition. Alvarez now appeals that dismissal.

In this appeal, Alvarez argues that rule 12(b)(6) is inapplicable to habeas corpus actions and that such actions are governed only by rule 65B of the Utah Rules of Civil Procedure. Alvarez further argues that his petition was sufficient in light of rule 65B.

The State responds that rule 12(b)(6) does apply to habeas corpus petitions and that the habeas court was correct in dismissing Alvarez’s petition.

III. STANDARD OF REVIEW

When reviewing a trial court’s grant of a rule 12(b)(6) motion to dismiss, “we accept the factual allegations in the complaint as true and consider them and all reasonable inferences to be drawn from them in a light most favorable to the plaintiff.” St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 196 (Utah 1991). “Because the propriety of a 12(b)(6) dismissal is a question of law, we give the trial court’s ruling no deference and review it under a correctness standard.” Id.

IV. ANALYSIS

It is clear that rule 12(b)(6) of the Utah Rules of Civil Procedure does apply to habeas corpus petitions. It is true that rule 65B of the Utah Rules of Civil Procedure is the rule that generally governs the drafting, filing, and disposition of habeas corpus petitions. However, that rule makes provision for the application of other rules when necessary. Rule 65B(a) reads, in relevant part, “To the extent that this rule does not provide special procedures, proceedings on petitions for extraordinary relief shall be governed by the procedures set forth elsewhere in these rules.” Further, rule 65B(b), upon which Avarez bases his petition, specifically refers to the application of motions to dismiss. Rule 65B(b)(9) states in relevant part:

Within twenty days ... after service of a copy of the petition upon the attorney general and county attorney ... the attorney general or county attorney shall answer or otherwise respond to the portions of the petition that have not been dismissed [as frivolous on their face pursuant to 65B(b)(7) ] and shall serve the answer or other response upon the petitioner in accordance with Rule 5(b). Within twenty days ... after service of any motion to dismiss or for summary judgment, the petitioner may respond by memorandum to the motion.

(Emphasis added.) In addition, Utah courts have applied rule 12(b)(6) to habeas petitions. See, e.g., Candelario v. Cook, 789 P.2d 710, 711 (Utah 1990) (holding judge’s dismissal of habeas petition for “failure to state a claim upon which relief may be granted” was “correct”); Gonzales v. Morris, 610 P.2d 1285, 1286-87 (Utah 1980) (explicitly rejecting argument that motion to dismiss is not allowed under rule 65B); see also Estes v. Van Der Veur, 824 P.2d 1200 (Utah.Ct.App.1992) (per curiam) (affirming 12(b)(6) dismissal of habe-as petition while still recognizing that habeas proceedings are generally governed by rule 65B).

Rule 12(b)(6) concerns the sufficiency of the pleadings, not the underlying merits of a particular ease.⁵ 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (2d ed. 1990). When a 12(b)(6) motion is filed, the issue before the court is whether the petitioner has alleged enough in the complaint to state a cause of action, and this preliminary question is asked and answered before the court conducts any hearings on the ease. In the case before us, the preliminary question is whether Alvarez’s petition sufficiently alleged all of the elements of an ineffective assistance of counsel claim. If it did not, then the habeas court correctly dismissed the petition before ordering an evidentiary hearing.

The two-part test for determining whether someone has been rendered ineffective assistance of counsel, as stated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and as adopted in Utah, see State v. Templin, 805 P.2d 182, 186 (Utah 1990), is as follows:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is rehable.

The Strickland Court further stated that to show prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 5.Ct. at 2068.

In his habeas petition, Alvarez did allege the first prong of the Strickland test, namely, that the performances of his prior attorneys were deficient. Alvarez even alleged facts that he believed supported this assertion. However, he completely failed to allege either how he was prejudiced by the claimed ineffectiveness or that he was prejudiced at all. The word “prejudice” does not even appear in his petition. In other words, Alvarez’s petition failed to allege one of the two basic required elements of an ineffective assistance of counsel claim. Thus, the petition cannot pass muster under the scrutiny of rule 12(b)(6). See 2A James Wm. Moore et al., Moore’s Federal Practice ¶ 12.07 (2d ed. 1996) (“Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief_”).

In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the United States Supreme Court considered a habeas corpus petition in which the petitioner claimed that he had received ineffective assistance of counsel when he pleaded guilty to charges of first degree murder and theft of property in an Arkansas court. The Supreme Court, however, held it unnecessary to reach the merits of the case because it concluded that the “petitioner’s allegations [were] insufficient to satisfy the Strickland v. Washington requirement of ‘prejudice.’ ” The petitioner did not allege in his habeas corpus petition that had his attorney properly advised him, the outcome would have been different — i.e., “he would have pleaded not guilty and insisted on going to trial.” Therefore, the Supreme Court concluded that the district court did not err in dismissing the habeas petition without holding an evidentiary hearing on the ineffective assistance of counsel claim. Id. at 60,106 S.Ct. at 371.

In this case, as in Hill, Alvarez also failed to allege prejudice, a basic required element of an ineffective assistance of counsel claim. Thus, under Strickland and Hill, his petition was insufficient, and the habeas court correctly dismissed his petition for failure to state a claim under rule 12(b)(6).⁶

Although the habeas court did not specify whether its order of dismissal was with or without prejudice, it is a general rule that if a court grants an involuntary dismissal and does not specify whether it is with or without prejudice, it is assumed that the dismissal is with prejudice. Rule 41(b) of the Utah Rules of Civil Procedure clearly states, “Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule ... operates as an adjudication upon the merits.” Utah R.Civ.P. 41(b) (emphasis added); see also Madsen v. Borthick, 769 P.2d 245, 248 (Utah 1988) (“[R]ule . 41(b) ... comprehensively define[s] a dismissal on the merits; not just rule 41(b) dismissals, but all dismissals.”).

However, it is also a general rule that a “dismissal under Rule 12(b)(6) generally is not final or on the merits and the court normally will give plaintiff leave to file an amended complaint.” Wright & Miller, supra, § 1357. “Amendment should be refused only if it appears to a certainty that plaintiff cannot state a claim.” Id. We cannot say in this case that Alvarez cannot state a claim upon which relief can be granted. Thus, while the habeas court correctly applied rule 12(b)(6) to Alvarez’s petition, the court should have dismissed the petition without prejudice and granted Alvarez leave to amend the complaint to comport with the requirements of rule 12(b)(6).

V. CONCLUSION

On the basis of the foregoing, we affirm the habeas court’s dismissal of Alvarez’s ha-beas corpus petition under rule 12(b)(6) of the Utah Rules of Civil Procedure, order that the dismissal be without prejudice, and remand to the habeas court for further proceedings consistent with our opinion.

ZIMMERMAN, C.J., and HOWE and DURHAM, JJ., concur.

1 . For a detailed account of the facts underlying Alvarez’s conviction, see State v. Alvarez, 872 P.2d 450, 452-53 (Utah 1994).

2 . The trial court gave the jury the following instruction relevant to the homicide of Don New-ingham: "3. That Fred A. Alvarez caused said death under circumstances where the homicide was committed incident to one act, scheme, course of conduct, or criminal episode during which two or more persons are killed.” While they were deliberating, the jury submitted the following question to the judge regarding the instruction: "Do you need to satisfy all elements listed or just one?” The judge responded, "Any single element set forth in paragraph 3 ... is sufficient.” Alvarez's trial attorney did not object to either the instruction or the judge's response to the jury’s question.

3 . See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (dismissing jurors solely on the basis of race gives rise to equal protection claim). This claim was later withdrawn and is now irrelevant for our purposes.

4 . In its motion, the State also contended that Alvarez's petition should be dismissed (1) for improperly raising claims that the State argued should have been raised on direct appeal, and (2) for failing to attach to his petition evidence in support of his "failure to investigate” claim. However, because rule 12(b)(6) is dispositive, it is not necessary for us to address these other contentions here.

5 . The relevant language of rule 12(b)(6) is as follows:

Every defense, in law or fact, to claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted....

6 . The State argued to this court that the 12(b)(6) motion was converted into a rule 56 motion for summary judgment because the habeas court, in its dismissal, considered the effect of an aiding and abetting instruction that was given to the jury at the original trial. However, a jury instruction given at trial is not a matter "outside the pleadings” sufficient to convert the motion to one for summary judgment. Moore, supra, ¶ 12.07 (items attached to pleading, items of public record, and items in trial record will not convert 12(b)(6) motion to rule 56 motion for summary judgment); Wright & Miller, supra, § 1357. Further, the habeas court did not treat the motion as one for summary judgment, and even if it had, Alvarez was not given notice or reasonable opportunity to respond as required by rule 12(c). See Colman v. Utah State Land Bd., 795 P.2d 622, 624-25 (Utah 1990) (declining to convert rule 12(b)(6) motion to one for summary judgment where opposing party had not been given opportunity to present additional evidence).