                     This opinion is subject to revision before
                       publication in the Pacific Reporter

                                    2016 UT 44

                                     IN THE

         SUPREME COURT OF THE STATE OF UTAH

                               DANNY LOGUE,
                                 Petitioner,
                                        v.
    COURT OF APPEALS, STATE OF UTAH, and THIRD DISTRICT COURT,
                           Respondents.


                               No. 20160498
                          Filed October 20, 2016

                        Fourth District, Provo
                    The Honorable Derek P. Pullan
                           No. 111401543

                  On Petition for Extraordinary Writ

                                  Attorneys:
             Herschel Bullen, Salt Lake City, for petitioner
        Sean D. Reyes, Att’y Gen., Tyler R. Green, Solic. Gen.,
Thomas B. Brunker, Deputy Solic. Gen., Mark C. Field, Asst. Solic. Gen.,
                   Salt Lake City, for respondents
           Nancy J. Sylvester, Salt Lake City, for respondent
                  Administrative Office of the Courts


   PER CURIAM:
    ¶ 1 In a petition for extraordinary relief, Danny Logue asks us to
direct the district court to entertain a motion for a new trial based on
newly discovered evidence, despite the fact that the time for filing such
a motion has already expired. We deny Mr. Logue’s petition for two
reasons: (1) it fails to comply with the pleading requirements
prescribed in rule 19(b) of the Utah Rules of Appellate Procedure, and
(2) Mr. Logue has failed to carry his burden of showing that the newly
                      LOGUE v. COURT OF APPEALS
                         Opinion of the Court

discovered impeachment evidence in this case justifies our granting
extraordinary relief.
   ¶ 2 After a fourteen-day jury trial, Mr. Logue was convicted of
aggravated murder, possession of a dangerous weapon by restricted
person, and obstruction of justice. Brandon Wright was one of the
State’s witnesses at trial. He testified that Mr. Logue admitted to the
aggravated murder in 2014 when they were both serving prison time
on the same cell block. The jury also heard evidence of Mr. Wright’s
lengthy criminal record, including his prior gang affiliation.
   ¶ 3 Mr. Logue was sentenced on May 14, 2015. He filed a motion
for a new trial, which was denied on December 9, 2015. On
December 28, 2015, he filed his notice of appeal. Approximately three
months later, while Mr. Logue’s appeal was pending, Mr. Wright
walked into a police station and confessed to an unrelated twenty-year-
old murder.
    ¶ 4 Mr. Logue now petitions for extraordinary relief based on
Mr. Wright’s confession. Mr. Logue argues that unless we exercise our
authority to issue an extraordinary writ, he will be unable to seek a new
trial based on this newly discovered evidence until after he has
exhausted his direct appeal—a process that could take months or years.
    ¶ 5 We broadly take Mr. Logue’s point. Rule 24(c) of the Utah
Rules of Criminal Procedure generally requires that a motion for new
trial be made “not later than 14 days after entry of the sentence.” The
Utah Rules of Civil Procedure likewise require litigants to seek relief
from judgment based on new evidence no later than ninety days from
the entry of judgment against them. See UTAH R. CIV. P. 60(b)(2), (c). 1
Moreover, it appears that Mr. Logue may not petition for
postconviction relief until he exhausts his direct appeal. See UTAH
CODE §§ 78B-9-102(1), 78B-9-107(1)–(2). 2 Thus, it appears that criminal
defendants, like Mr. Logue, who discover new evidence more than
ninety days after sentencing must await the conclusion of their appeal



   1  The Utah Rules of Civil Procedure may apply in criminal
proceedings when “there is no other applicable statute or rule.” UTAH
R. CIV. P. 81(e).
   2 Because Mr. Logue does not seek to raise a claim of factual
innocence, we do not reach whether factual innocence claims may be
exempt from this limitation. See UTAH CODE § 78B-9-402.



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                          Cite as: 2016 UT 44
                         Opinion of the Court

before attempting to seek relief based on this evidence, even if it would
likely entitle them to a new trial.
    ¶ 6 We share Mr. Logue’s concerns that there may be a period of
time during which defendants in Mr. Logue’s shoes are procedurally
unable to press potentially meritorious claims. We nevertheless deny
Mr. Logue’s petition because we conclude that Mr. Logue failed to
carry his burden of showing that the newly discovered impeachment
evidence in this case justifies our issuing an extraordinary writ. See
Kettner v. Snow, 375 P.2d 28, 30 (Utah 1962) (“[T]he burden of showing
facts to justify [granting extraordinary relief] is upon him who seeks
such relief.”). Mr. Logue contends that Mr. Wright’s posttrial
confession to an unrelated murder shows that he “seriously perjured
himself by the material omission of the fact that he had committed a
murder in Washington State for which he had not been brought to
justice.” But Mr. Logue has not explained how Mr. Wright’s omission
of this fact amounts to perjury. Moreover, the jury knew that
Mr. Wright had a lengthy criminal record, including prior affiliation
with a prison gang. Mr. Logue has not persuaded us that the jury’s
assessment of Mr. Wright’s credibility would have been significantly
affected by the additional information that he had committed an
unsolved serious crime. See State v. Pinder, 2005 UT 15, ¶ 66, 114 P.3d
551 (newly discovered evidence does not warrant a new trial if it is
merely cumulative); see also State v. Boyd, 2001 UT 30, ¶ 28, 25 P.3d 985
(“As a general rule, newly discovered evidence does not warrant a new
trial where its only use is impeachment.”); State v. Worthen, 765 P.2d
839, 851 (Utah 1988) (denying motion for new trial when newly
discovered evidence had only “minor impeachment value”). 3
   ¶ 7 We accordingly decline to exercise our discretion to grant
Mr. Logue’s petition for extraordinary relief. But we will direct the
appropriate standing committee on the rules of procedure to consider

   3
     We also note that Mr. Logue did not comply with rule 19(b) of the
Utah Rules of Appellate Procedure. This rule requires a petition for an
extraordinary writ to contain, among other things, “[a] statement of the
reasons why no other plain, speedy, or adequate remedy exists and
why the writ should issue.” UTAH R. APP. P. 19(b)(4). Mr. Logue’s
petition does not even attempt to explain why his inability to pursue a
new trial until after he has exhausted his appeal deprived him of a
“plain, speedy, or adequate remedy.” Indeed, nowhere in Mr. Logue’s
petition does the phrase “plain, speedy, or adequate remedy” even
appear.


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                      LOGUE v. COURT OF APPEALS
                         Opinion of the Court

revising them so that they do not act as a categorical bar to motions for
new trials in cases like these.




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