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Attorney tells Court of Appeals expert opinion and sealed DCFS report made Pattersons PCRA untimely to discover
Summary
In oral argument in Patterson v. State, defense counsel argued that a newly obtained expert opinion and a sealed DCFS report were "evidentiary facts" that petitioner Scott Patterson could not reasonably have discovered earlier because he was indigent and incarcerated; the State urged the one-year PCRA diligence rule and said Patterson failed to proffer steps he took during the limitations period.
Benjie McMurray, counsel for Scott Patterson, told a three-judge Utah Court of Appeals panel that an expert opinion is an evidentiary fact that can trigger the Post-Conviction Remedies Act (PCRA) one-year clock and that Patterson could not have discovered that opinion or a sealed DCFS report while incarcerated without counsel. "The expert opinion is, I think, the operative evidentiary fact," McMurray said, arguing discovery of that opinion, not trial counsel's omissions, should govern the limitations inquiry.
McMurray said courts should assess what is reasonable for an indigent, incarcerated petitioner, not what a lawyer would have done. He…
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