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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 stressed the practical barriers: experts cost money and DCFS records are sealed, and argued those two process facts made the items undiscoverable by Patterson until post-conviction counsel obtained them. He urged the court to reverse summary judgment or remand so the district court could develop the factual record.
Judges pressed the parties on whether the operative "fact" was the expert opinion itself or the failure of counsel to obtain it, and whether an alleged ineffective-assistance-of-counsel (IAC) claim against appellate counsel would change the limitations analysis. McMurray said he had included allegations of appellate IAC in the petition but characterized the statute-of-limitations question as separate and appropriate for a merits review if necessary.
The State countered that Patterson's claims "are not new. They are old," arguing that the underlying facts were available at trial and that Patterson failed to proffer actions he took to pursue post-conviction relief within the PCRA's year. State counsel told the panel that the statute places the burden on the petitioner to disprove the time bar and that the record lacks specifics about steps Patterson took before the deadline.
On the Rule 56 issue, the parties disputed whether the district court relied on summary-judgment proffer defects as an independent basis for its ruling. The State said Patterson made no showing of diligence, while McMurray argued the substantive facts presented and the practical impossibility of obtaining sealed records or paying for experts supported Patterson's exception to the time bar.
McMurray asked the panel to avoid treating unrepresented petitioners the same as attorneys when judging diligence, and suggested limited remedies: either reversal of summary judgment and remand for further fact development or an opportunity to brief appellate counsel IAC if the court thinks it material. The court took the case under advisement and will issue a decision later.
