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

                               2020 UT 62


                                  IN THE

     SUPREME COURT OF THE STATE OF UTAH

                MICHAEL ANTHONY ARCHULETA,
                         Appellant,
                                     v.
                            STATE OF UTAH,
                               Appellee.

                 Nos. 20160419, 20160992
                  Heard January 10, 2018
        Supplemental Briefing Completed June 13, 2018
                   Filed August 20, 2020

                          On Direct Appeal

                   Fourth District, Fillmore
               The Honorable Jennifer A. Brown
                     Case No. 140700047

                               Attorneys:
     Leticia Marquez, Charlotte G. Merrill, Jon M. Sands,
 Phoenix, AZ, Zachary E. Peterson, Salt Lake City, for appellant
    Sean D. Reyes, Att’y Gen., Andrew F. Peterson, Aaron G.
     Murphy, Asst. Solics. Gen., Salt Lake City, for appellee

  JUSTICE PETERSEN authored the opinion of the Court in which
     CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
          JUSTICE HIMONAS, and JUSTICE PEARCE joined.

   JUSTICE PETERSEN, opinion of the Court:
                         INTRODUCTION
    ¶1 In 1989, a jury convicted Michael Anthony Archuleta of
first-degree murder and sentenced him to death. After a direct
appeal and two unsuccessful petitions for post-conviction relief in
state court, Archuleta filed a habeas petition in federal court in
2012. In his federal petition, he alleged that he is intellectually
                        ARCHULETA v. STATE
                       Opinion of the Court

disabled and therefore it is unconstitutional for the State to
execute him. See Atkins v. Virginia, 536 U.S. 304 (2002). Archuleta
argued that he had not exhausted this claim in state court and
asked for a stay of the federal proceedings. The federal court
granted the stay and gave Archuleta’s federal counsel leave to file
his Atkins claim in state court.
    ¶2 In 2014, Archuleta’s federal counsel filed in state court the
petition that is now before us. This is Archuleta’s third state
petition for post-conviction relief. It includes not only an Atkins
claim but also twelve additional claims unrelated to Atkins. The
post-conviction court granted summary judgment against
Archuleta on all of his claims, concluding they were barred under
the Post-Conviction Remedies Act (PCRA). Archuleta appealed.1
    ¶3 The post-conviction court’s order and the parties’ briefing
have presumed that the PCRA governs Archuleta’s Atkins claim.
But upon review, we observed that no provision of the PCRA
plainly applied to that specific claim. We requested supplemental
briefing from the parties on this issue, and each cited to a different
PCRA provision as an avenue for relief.
    ¶4 We conclude that no provision of the PCRA applies to
Archuleta’s Atkins claim. Accordingly, the PCRA does not provide
a remedy for this claim. Archuleta also argues that if the PCRA
bars his claim and he has no avenue of relief, then the PCRA
amounts to an unconstitutional suspension of the writ of habeas
corpus. He asserts that we should therefore provide a common-
law equitable remedy that permits us to address his Atkins claim
on the merits. But because we have not found that the PCRA bars
his claim or that there is no means of relief available to him, we
reject this argument as unripe. Finally, with respect to Archuleta’s
twelve additional claims, which do arise under the PCRA, we
__________________________________________________________
   1  Archuleta sought review of the post-conviction court’s
dismissal of his claims in two separate appeals. Case number
20160419 relates to Archuleta’s Atkins claim and 20160992 relates
to the remaining twelve claims. These cases have not been
consolidated, but we resolve them together in this opinion.
Additionally, the State filed a motion for summary disposition of
case 20160992, upon which we deferred ruling until plenary
presentation on the merits. We deny the State’s motion and
resolve case 20160992 herein.


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agree with the post-conviction court that each one is procedurally
barred.
   ¶5 Accordingly, we affirm the post-conviction court’s
dismissal of Archuleta’s Atkins claim, not because it is barred by
the PCRA but because it is not cognizable under that statute. And
we affirm with regard to his remaining claims.
                        BACKGROUND
   ¶6 Archuleta’s case has a long history in our state courts. In
December 1989, a jury in the fourth judicial district convicted
Archuleta of first-degree murder and sentenced him to death. On
direct appeal in 1993, we affirmed his conviction and death
sentence. See State v. Archuleta (Archuleta I), 850 P.2d 1232, 1249
(Utah 1993).
     ¶7 Archuleta filed a petition for a writ of habeas corpus in
the fourth judicial district in 1994 (1994 Petition).2 The 1994
Petition raised numerous claims, including assertions of
ineffective assistance of trial and appellate counsel. The post-
conviction court granted a motion to dismiss the petition. We
reversed in part, concluding that Archuleta had a Sixth
Amendment right to pursue claims of ineffective assistance of
counsel against his trial and appellate lawyers. We remanded his
petition for further proceedings. See Archuleta v. Galetka (Archuleta
II), 960 P.2d 399, 399 (Utah 1998).
    ¶8 Four years later in 2002, Archuleta filed his second
petition for post-conviction relief (2002 Petition), raising forty-
three separate claims, many with numerous subclaims. In claims
one through thirty, Archuleta raised new claims directly
challenging his conviction and sentence. He also raised several
claims of ineffective assistance of counsel, alleging that his trial
and appellate counsel were ineffective for not having previously
raised the first thirty claims.
   ¶9 Six days after Archuleta filed his 2002 Petition, the United
States Supreme Court decided the case of Atkins v. Virginia, 536
U.S. 304 (2002). In it, the Supreme Court changed the landscape of
death-penalty jurisprudence by holding it was cruel and unusual

__________________________________________________________
    2 Utah’s legislature enacted the PCRA on April 29, 1996, which

applies “only to post-conviction proceedings filed on or after July
1, 1996.” UTAH CODE § 78B-9-103.


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punishment to execute an intellectually disabled person. Id. at 321.
Archuleta did not amend his petition to include an Atkins claim.
   ¶10 The post-conviction court granted summary judgment
against Archuleta on all but two of his claims. The court held an
evidentiary hearing on the remaining claims but ultimately
denied them. Archuleta appealed this ruling.
   ¶11 In August 2007, while his appeal was pending, Archuleta
asked the federal court to appoint counsel to represent him in
federal habeas proceedings in the event his state appeal failed.
The federal court immediately appointed federal counsel.
    ¶12 In February 2008, Archuleta’s state post-conviction
counsel asked this court for permission to withdraw from the
case. We granted the request and temporarily remanded the case
to allow the post-conviction court to appoint substitute counsel. In
2009, while Archuleta’s appeal to this court was still pending,
Archuleta—now with new post-conviction counsel—moved the
post-conviction court to set aside its summary judgment order
and grant him a new trial.
    ¶13 Archuleta filed this motion pursuant to rules 59 and 60(b)
of the Utah Rules of Civil Procedure, as well as the Sixth and
Fourteenth Amendments to the United States Constitution. He
alleged his prior state post-conviction counsel had been
ineffective. In this motion, Archuleta made an Atkins claim for the
first time. The post-conviction court held oral arguments on the
rule 59 and 60(b) portions of the motion and ultimately denied
them. Archuleta appealed the court’s rule 60(b) decision.
    ¶14 We considered the post-conviction court’s grant of
summary judgment and denial of Archuleta’s rule 60(b) motion,
and we affirmed both. Archuleta v. Galetka (Archuleta III), 2011 UT
73, ¶¶ 1, 170, 267 P.3d 232. We held that Archuleta’s prior
post-conviction counsel’s performance was not the kind of
“egregious lawyer misconduct” that would justify setting aside
the post-conviction court’s order pursuant to rule 60(b). See id.
¶¶ 168–69. As a result, we declined to individually address each
of Archuleta’s claims of prior post-conviction counsel’s ineffective
assistance. Id. ¶ 169. Archuleta’s Atkins claim was one of those
claims. See id. ¶¶ 149, 169.
   ¶15 In December 2012, about one year after we decided
Archuleta III, Archuleta filed a federal habeas petition. Among
other claims, his petition asserted that he was intellectually
disabled and therefore exempt from the death penalty under
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Atkins. Archuleta and the State stipulated to a scheduling order
that allowed him to move to stay the federal case while he
returned to state court to exhaust his Atkins claim. The federal
court granted Archuleta’s motion for a stay on November 12,
2014.
    ¶16 One month later, Archuleta filed the instant petition for
relief in the fourth judicial district. In addition to an Atkins claim,
Archuleta raised twelve more claims.
    ¶17 The State moved for summary judgment. But then in its
reply memorandum, the State withdrew its motion on the merits.
It requested the court to stay determination of the remainder of
the motion, which argued that the PCRA’s time and procedural
rules barred the Atkins claim, until the merits of the Atkins claim
could be fully adjudicated in an evidentiary hearing.
    ¶18 However, in an order disposing of all outstanding
motions, the post-conviction court granted the State’s motion for
summary judgment. The court first determined that Archuleta
had not adequately disputed the State’s recitation of the material
facts. The court then ruled that the PCRA barred Archuleta’s
Atkins claim because he did not raise it within one year of its
accrual and that all of his other claims were also barred under the
PCRA.
    ¶19 Archuleta filed a timely notice of appeal. We have
jurisdiction to hear this case pursuant to Utah Code section
78A-3-102(3)(i).
                    STANDARD OF REVIEW
    ¶20 “We review an appeal from an order dismissing or
denying a petition for post-conviction relief for correctness
without deference to the lower court’s conclusions of law.” Taylor
v. State, 2007 UT 12, ¶ 13, 156 P.3d 739 (citation omitted).
Moreover, “[w]hen confronted with ineffective assistance of
counsel claims, we review a lower court’s purely factual findings
for clear error, but [we] review the application of the law to the
facts for correctness.” Id.
                             ANALYSIS
   ¶21 We first address whether Archuleta’s Atkins claim is
cognizable under the PCRA and determine it is not. We then turn
to Archuleta’s argument that if the PCRA bars his claim and he
has no available means of relief, we should recognize a
common-law equitable remedy that permits us to address his

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Atkins claims on the merits. We reject this claim as unripe. Finally,
we address each of Archuleta’s remaining twelve claims and
conclude they are procedurally barred under the PCRA. He has
already litigated all but two of them. And with respect to the
remaining two claims, we conclude he could have raised them
many years ago.
                I. THE ATKINS CLAIM AND
           THE POST-CONVICTION REMEDIES ACT
   ¶22 A threshold question in this case is whether Archuleta’s
Atkins claim is cognizable under the PCRA. Because the PCRA
provides that it is “the sole remedy for any person who challenges
a conviction or sentence for a criminal offense and who has
exhausted all other legal remedies,” UTAH CODE § 78B-9-102(1)(a),
the post-conviction court and both parties have assumed that the
PCRA governs Archuleta’s Atkins claim. But that is not so clear.
    ¶23 In their initial briefing, the parties did not analyze which
subsection of the PCRA applied to this claim. So we asked them to
do so in supplemental briefing. Archuleta and the State gave
different answers to this question.
    ¶24 Archuleta submits that Utah Code section 78B-9-104(1)(a)
permits him to file his Atkins claim. This section allows petitioners
to file an action if their “conviction was obtained or the sentence
was imposed in violation of the United States Constitution or
Utah Constitution.” Id. § 78B-9-104(1)(a).
    ¶25 But the plain language of this provision shows that it
does not apply to Archuleta’s Atkins claim. It allows for relief
when a “conviction was obtained or the sentence was imposed”
unconstitutionally. Id. (emphases added). The use of the past tense
indicates that this section applies where the conviction or sentence
was unconstitutional at the time it was handed down. But that
was not the case here. Even assuming Archuleta is intellectually
disabled, when he was sentenced to death it was not
unconstitutional to execute an intellectually disabled person. See
Penry v. Lynaugh, 492 U.S. 302 (1989), abrogated by Atkins v.
Virginia, 536 U.S. 304 (2002). Atkins was not decided until years
later. Accordingly, section 104(1)(a) does not apply here.
   ¶26 The State argues that a different section of the PCRA
applies to Archuleta’s Atkins claim. The State points to section
104(1)(f)(ii), which allows petitioners to file an action to vacate or
modify their conviction or sentence when the petitioner claims
entitlement to relief under a new rule that “decriminalizes the
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conduct that comprises the elements of the crime for which the
petitioner was convicted.” UTAH CODE § 78B-9-104(1)(f)(ii). The
State argues that, while not obvious from the language of the rule,
this section also applies to status exemptions announced after a
petitioner’s conviction.
    ¶27 The State reasons that the legislature intended to codify
the retroactivity rules announced in Teague v. Lane, 489 U.S. 288
(1989), and its progeny. This federal case law holds that while new
constitutional rules of criminal procedure generally do not apply
retroactively, new substantive constitutional rules do. Id. at 311.
And substantive constitutional rules include not only those that
decriminalize certain conduct, but also those that exempt classes
of defendants from punishment based on their status. Montgomery
v. Louisiana, 136 S. Ct. 718, 728–29 (2016). The State reasons that by
referencing the first type of substantive constitutional rule in
section 104(1)(f)(ii), the legislature must have intended to include
both categories of substantive constitutional rule.
    ¶28 But this argument does not find support in the statute’s
language. This section expressly provides a remedy when a new
constitutional rule decriminalizes the conduct for which a
petitioner was convicted. It says nothing about new constitutional
status exemptions. And absent such language, we will not
presume the legislature intended to include it.
   ¶29 We note that the PCRA also provides a remedy when
“the petitioner can prove entitlement to relief under a rule
announced by the United States Supreme Court . . . after
conviction and sentence became final on direct appeal.” UTAH
CODE § 78B-9-104(1)(f). But this applies only when “the rule was
dictated by precedent existing at the time the petitioner’s
conviction or sentence became final.” Id. § 78B-9-104(1)(f)(i). The
holding in Atkins was not dictated by precedent existing at the
time Archuleta’s conviction or sentence became final. Rather, it
abrogated Penry v. Lynaugh, 492 U.S. 302 (1989).
    ¶30 Thus, Archuleta’s Atkins claim presents a novel situation
in which the PCRA does not recognize the claim as a ground for
relief—even if Archuleta had timely filed his Atkins claim under
the PCRA. For this reason, its procedural and time bars do not
apply. Accordingly, we do not address the question of whether
the PCRA’s time and procedural bars prevent Archuleta from
bringing his Atkins claim. We affirm the post-conviction court’s
dismissal of this claim on the alternative basis that it is not
cognizable under the PCRA.

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                       ARCHULETA v. STATE
                       Opinion of the Court

           II. REQUEST FOR COMMON-LAW RELIEF
    ¶31 Next, Archuleta argues that if the PCRA bars his Atkins
claim and he therefore has no avenue of relief, then the PCRA is
unconstitutional because it effectively suspends the writ of habeas
corpus in violation of the Utah Constitution. See UTAH CONST.
art. I, § 5. He argues that we should respond by exercising what
he describes as our traditional common law authority over
collateral proceedings to provide him an opportunity to raise his
challenge.
   ¶32 But as we have explained, we have not found that the
PCRA’s procedural and time bars block Archuleta’s Atkins claim.
Rather, we have found only that the PCRA does not contain a
provision recognizing this type of claim.
    ¶33 Accordingly, Archuleta’s claim that he has no avenue of
relief is premature. We have determined only that the specific
relief he has pursued is unavailing, not that the PCRA prevents
him from seeking any relief.
    ¶34 Beyond the PCRA, another mechanism to correct
sentences that are alleged to be illegal is Utah Rule of Criminal
Procedure 22(e). The PCRA “does not apply to . . . motions to
correct a sentence pursuant to Rule 22(e).” UTAH CODE
§ 78B-9-102(2). Accordingly, the PCRA’s time and procedural bars
do not apply to claims brought under rule 22(e). And such claims
“are not restricted by the time limits for bringing notice of appeal.
Nor are they waived by failure to raise them at the first
opportunity before the district court.” State v. Telford, 2002 UT 51,
¶ 5, 48 P.3d 228. “This makes theoretical sense because an illegal
sentence is void and, like issues of jurisdiction, [may be raised] at
any time.” State v. Brooks, 908 P.2d 856, 860 (Utah 1995).
    ¶35 Neither party to this appeal argued in their initial briefing
that rule 22(e) had any application. In an order for supplemental
briefing, we asked the parties, among other things, whether
Archuleta’s Atkins claim is cognizable under rule 22(e), and
accordingly foreclosed from litigation in a PCRA proceeding. Both
parties’ supplemental briefs responded that, based on our
decision in State v. Houston, 2015 UT 40, 353 P.3d 55, rule 22(e) was
not the proper vehicle for Archuleta’s Atkins claim because




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Archuleta is making an “as-applied challenge,” as opposed to a
“facial challenge.”3
    ¶36 Without addressing whether this reading of Houston is
correct, we note that rule 22(e) has been amended since the parties
submitted their supplemental briefing to address a gap in the
coverage of the PCRA. See UTAH CODE § 78B-9-104(1)(f)(i)
(providing a remedy when a petitioner can prove entitlement to
relief under a rule announced after conviction and sentence
became final and the rule was dictated by precedent existing at the
time the petitioner’s conviction or sentence became final). The current
rule 22(e) states,
       The court must correct the sentence of a defendant
       who can prove that the sentence is unconstitutional
       under a rule established or ruling issued by the
       United States Supreme Court, the Utah Supreme
       Court, or the Utah Court of Appeals after sentence
       was imposed, and the rule or ruling was not dictated
       by precedent existing at the time the defendant’s
       conviction or sentence became final.
UTAH R. CRIM. P. 22(e)(2) (emphasis added). Of course, this
applies only when a sentence, not a conviction, is being
challenged.
    ¶37 Archuleta has not filed a motion under rule 22(e). So his
assertion that he has no avenue for relief is not ripe. “A dispute is
ripe when a conflict over the application of a legal provision has
sharpened into an actual or imminent clash of legal rights and
obligations between the parties thereto.” Metro. Water Dist. v. Sorf,
2019 UT 23, ¶ 10, 445 P.3d 443 (citation omitted). Alternatively, an
“issue is not ripe . . . if there exists no more than a difference of
opinion regarding the hypothetical application of a provision to a
situation in which the parties might, at some future time, find
themselves.” Id. (citation omitted).

__________________________________________________________
    3 An “as-applied challenge” is a “claim that a law . . . though

constitutional on its face, is unconstitutional as applied,” or that
the law “is unconstitutional on the facts of a particular case or in
its application to a particular party.” Challenge, BLACK’S LAW
DICTIONARY (11th ed. 2019). A “facial challenge” is a “claim that a
statute is unconstitutional on its face—that is, that it always
operates unconstitutionally.” Id.


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                        ARCHULETA v. STATE
                       Opinion of the Court

   ¶38 Such is the case here. Archuleta has asserted that the
PCRA is unconstitutional to the extent that it forecloses all
avenues for habeas relief. But the allegedly unconstitutional
application of the PCRA is not “imminent.” Because Archuleta
has not pursued a rule 22(e) motion, and because such motion is
expressly allowed by the terms of the PCRA, his claim is at most a
“hypothetical application” of the PCRA’s exclusive remedy
provision, UTAH CODE § 78B-9-102(1)(a), and rule 22(e).
Accordingly, we reject this claim as unripe.
      III. ARCHULETA’S REMAINING TWELVE CLAIMS
   ¶39 In addition to his Atkins claim, Archuleta raises twelve
unrelated claims. We conclude that they are procedurally barred
because Archuleta has already litigated ten of them, sometimes
more than once. And the two he has not previously raised could
have been raised many years ago.
    ¶40 The state post-conviction court bifurcated the Atkins
claim from these additional claims. In claims numbered two
through thirteen,4 Archuleta asserts that: (2) trial counsel was
ineffective; (3) trial counsel was ineffective for failing to
investigate and present mitigating evidence; (4) appellate and
post-conviction counsel were ineffective; (5) his sentence is
disproportionate to the sentence of his codefendant and others;
(6) the trial court erred by failing to grant a motion for a mistrial;
(7) the trial court unconstitutionally allowed evidence of an
uncharged offense; (8) Utah’s death-penalty scheme violates both
the United States and Utah constitutions; (9) the State withheld
exculpatory evidence; (10) the appellate record is incomplete and
inadequate for meaningful review; (11) these errors, combined,
constitute cumulative error; (12) executing Archuleta after almost
twenty-five years of confinement constitutes cruel and unusual
punishment; and (13) empirical evidence over the past thirty-six
years shows that the death penalty in general constitutes cruel
and unusual punishment.
   ¶41 The State moved for summary judgment on all of
Archuleta’s non-Atkins claims. The post-conviction court
concluded that each claim was barred under the PCRA in
multiple ways. First, the court ruled that all of the claims were
__________________________________________________________
    4 These claims begin with number two because the Atkins

claim is the first in the petition on appeal.


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time barred because Archuleta had raised them over two years
earlier in his federal habeas petition.5 The court also determined
that Archuleta had already raised most of these claims in past
proceedings, so they were procedurally barred. And the court
concluded that those few claims that had not been previously
raised, could have been raised and therefore were also
procedurally barred.
   ¶42 While the post-conviction court found that the claims
were barred on numerous grounds, if a ground for relief is
precluded by any one of the PCRA’s bars, it is not viable. We
agree with the post-conviction court that all of Archuleta’s
additional claims are barred. We base our decision on the fact that
he has already litigated ten of the twelve claims, and the two he
has not raised could have been raised over a decade ago.
    ¶43 Relevant here, the PCRA bars a claim for relief if it “was
raised or addressed at trial or on appeal” or in “any previous
request for post-conviction relief.” UTAH CODE § 78B-9-106(1)(b),
(d). And a claim is barred if it “could have been, but was not,
raised in a previous request for post-conviction relief.” Id.
§ 78B-9-106(1)(d).

__________________________________________________________
    5 The post-conviction court held that the evidentiary facts

supporting each of Archuleta’s additional claims were known to
Archuleta by December 2012 at the latest, as that was when he
filed his federal habeas corpus petition, which included all the
additional claims he asserts here. Since Archuleta did not bring
these claims or file his petition in state court until December 2014,
the court held that each claim was barred by the PCRA’s statute of
limitations. See UTAH CODE § 78B-9-107(1) (“A petitioner is
entitled to relief only if the petition is filed within one year after
the cause of action has accrued.”). Archuleta argues that the
PCRA’s time bar should not apply to him for a number of reasons,
including that the statute of limitations is tolled due to
Archuleta’s alleged intellectual disabilities, and he received
ineffective assistance of counsel during his initial post-conviction
petition for relief. But we need not address these arguments,
because we determine that Archuleta has already litigated almost
all of the twelve additional claims, and the two he has not should
have been raised many years ago. So we do not address the
post-conviction court’s dismissal of Archuleta’s claims on this
basis.


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             A. Claims Archuleta Has Previously Raised
   ¶44 Archuleta asserts that he added these claims to his
petition in order to exhaust them in state court. But the post-
conviction court found he had already raised most of them in
prior proceedings, and they were therefore barred under Utah
Code subsections 78B-9-106(1)(b) and (d).6
    ¶45 In his briefing to us, Archuleta has not addressed on a
claim-by-claim basis the post-conviction court’s determination
that he had raised the claim before. In other words, he has not
addressed the details of the dismissed claims with particularity
and attempted to show how the ground for relief he asserts now is
distinct from the past claim to which the court connected it.
    ¶46 Instead, he argues generally that although prior
post-conviction counsel “may have raised some semblance of a
claim” before, his current claims are “fundamentally different”
because prior counsel did not adequately develop them and he
will do so now. He cites federal appellate case law for the
proposition that new factual development can “fundamentally
alter” a claim.” (Citing Dickens v. Ryan, 740 F.3d 1302, 1317 (9th
Cir. 2014) (en banc); Aiken v. Spalding, 841 F.2d 881, 883, 884 n.3
(9th Cir. 1988).)
    ¶47 The primary problem with this argument is that
Archuleta does not identify in his briefing any new facts on which
his claims are based, nor does he tell us how these facts render his
claims “fundamentally altered” or make them cognizable as
“newly discovered material evidence.” See UTAH CODE § 78B-9-
104(1)(e). Further, we have rejected the argument that the PCRA
permits a petitioner to relitigate a claim based on the assertion
that prior counsel presented it ineffectively. See Kell v. State, 2008
UT 62, ¶¶ 16–17, 194 P.3d 913. Accordingly, this argument does
__________________________________________________________
    6 On this basis, the court granted summary judgment on claims

2(a)–(c), 2(e)–(h), 3, 4, 5, 6, 7, 8, 10, and 11. We agree with the
post-conviction court’s determination on these claims.
Additionally, our own review shows he has previously raised
certain claims that the post-conviction court did not dismiss on
this basis. “It is within our discretion ‘to affirm [a] judgment on an
alternative ground if it is apparent in the record.’” Cochegrus v.
Herriman City, 2020 UT 14, ¶ 36, 462 P.3d 357 (alteration in
original) (citation omitted).


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not surmount the procedural bar prohibiting repetition of old
claims. UTAH CODE § 78B-9-106(1)(b), (d).
   ¶48 We also note that Archuleta raises some of these claims
from a slightly different angle. This does not matter when the
current ground for relief is “essentially the same issue” raised
previously. See Gardner v. Holden, 888 P.2d 608, 616 (Utah 1994).
“The attempt to avoid a prior ruling by a hair-splitting distinction
in the statement of the issue” does not permit a substantially
similar claim to be relitigated. Id.
    ¶49 Accordingly, we conclude that Archuleta has not met his
burden to persuade us that the post-conviction court erred when
it found he had previously raised these claims. Nevertheless, we
address each claim individually and explain why we agree that
the following claims are procedurally barred because Archuleta
has already raised them in prior litigation.
1. Claims 2 and 3: Ineffective Assistance of Trial Counsel
    ¶50 Archuleta argues that, for numerous reasons, his trial
counsel rendered ineffective assistance. Claim 2 contains lettered
subparts identifying alleged instances of ineffective assistance.
And Claim 3 is a stand-alone claim alleging that trial counsel
failed to investigate or present available mitigation evidence at
sentencing.7

__________________________________________________________
    7 Archuleta does not articulate in his opening brief the specific

instances of alleged ineffective assistance contained in his petition.
For purposes of documenting our comparison of his current
grounds with his past claims, we summarize the allegations in his
current petition here. Archuleta alleges that his trial counsel was
ineffective in: (2a) failing to investigate and present evidence to
impeach the testimony of David Homer; (2b and 2c) failing to
investigate co-defendant Lance Wood and obtain Department of
Corrections records showing Wood’s culpability; (2d) failing to
investigate and present blood spatter evidence; (2e) failing to
object to supplemental jury instructions regarding application of
the phrase “in the commission”; (2f) failing to object to the State’s
use of evidence of the uncharged crime of sodomy; (2g) failing to
object to the guilt-phase special verdict form in the penalty phase,
resulting in the double-counting of the aggravating circumstances;
(2h) failing to challenge the “especially heinous” aggravating
factor for failing to narrow the class of those eligible for the death
                                                       (continued . . .)
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                       Opinion of the Court

   ¶51 Archuleta clarifies that Claim 2 should be viewed as one
comprehensive claim, and he intends the lettered subparts to be
exemplary only. He does not delineate the individual examples of
ineffective assistance in his opening brief to this court, and he
argues that his overarching claim does not rely on the viability of
any of the specific instances he alleged in his petition.
Accordingly, with regard to Claim 2, Archuleta suggests it should
not matter if he has raised particular instances of ineffectiveness
before, because this is a comprehensive claim that trial counsel
was ineffective, and it is not dependent on any of the specific
examples he offers.
    ¶52 Archuleta has offered no legal analysis as to how he
could prevail on Claim 2 without identifying at least one viable
instance of trial counsel’s performance that fell below an objective
standard of reasonableness in a way that prejudiced him. See
Strickland v. Washington, 466 U.S. 668, 688 (1984). In the absence of
such argument or analysis, Archuleta has not explained how
Claim 2 could stand when every instance of ineffectiveness he
identifies has already been litigated. As described below,
Archuleta previously asserted substantially similar, sometimes
verbatim, claims of trial counsel’s ineffectiveness on direct appeal
and in his prior petitions for post-conviction relief.
      ¶53 In 1993, Archuleta raised the substance of two of his
current claims on direct appeal. He argues in Claim (2f) that trial
counsel was ineffective in failing to object to the State’s misuse of
evidence of the uncharged crime of sodomy. But Archuleta’s trial
counsel objected to the admission of evidence of sodomy in a
motion in limine. See Archuleta I, 850 P.2d 1232, 1237 (Utah 1993)
(“Defendant raises numerous claims on appeal. The most
significant are that the trial court committed reversible error by
. . . denying defendant’s motion in limine to exclude evidence of
sodomy.”). On direct appeal, Archuleta’s appellate counsel raised
this issue again, arguing that the trial court committed reversible
error in admitting the evidence because it was unduly prejudicial
under Utah Rule of Evidence 403. See id. at 1241. And this court

penalty; (2i) failing to challenge the constitutionality of Utah’s
death-penalty statute for imposing a burden on the defendant to
overcome the evidence of conviction and creating a presumption
of death in sentencing; and (3) failing to investigate and present
mitigation evidence.


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rejected the argument, holding that it was not an abuse of
discretion for the trial court to admit the sodomy evidence. Id. at
1242.8
    ¶54 In Claim (2e), Archuleta asserts that trial counsel failed to
properly object to the supplemental jury instructions regarding
application of the phrase “in the commission of” to the
aggravating circumstance of object rape. But Archuleta also raised
this ground for relief in his direct appeal. Id. at 1245. During
deliberations, the jury asked questions that suggested it “was
having difficulty determining whether the homicide was
committed ‘while in the commission of’ object rape.” Id. The
district court gave a supplemental instruction, which Archuleta
challenged on appeal as legally insufficient. Id. Although trial
counsel had not objected to the supplemental instruction at trial,
we reviewed the claim on the merits under a “manifest and
prejudicial error standard.” Id. at 1246. We determined that the
supplemental instruction was plain error. Id. And consequently,
we held that the jury’s finding of the aggravating circumstance of
object rape was invalid. Id. However, we did not overturn the
jury’s guilty verdict because the jury also “specifically and
unanimously” found that the murder was committed in
connection with three other aggravators. Id. Because only one
aggravator was necessary, we concluded the error was harmless.
Id. Further, we analyzed the error’s impact on Archuleta’s
sentencing and found the error was harmless in that context as
well. Id. at 1248. We stated, “we can confidently say beyond a
reasonable doubt that even if the jury had not considered the
invalid aggravator, it would have returned a verdict of death.” Id.
   ¶55 Although the underlying ground for relief is the same,
Archuleta puts a slightly different spin on Claim (2e). He asserts
that trial counsel was ineffective for failing to object to this
supplemental instruction and another instruction the district court
gave after the jury asked an additional question on this topic.
   ¶56 But as described above, twenty-seven years ago this court
resolved any claim related to the object-rape aggravator by
completely invalidating it and determining that its absence did
not harm Archuleta’s conviction or sentence. Archuleta’s attempt
__________________________________________________________
   8 As discussed below, Archuleta raised this issue again in his

2002 Petition. And on appeal, we again found that it was barred.
Archuleta III, 2011 UT 73, ¶ 34 n.4, 267 P.3d 232.


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                        Opinion of the Court

to approach the same claim from a different angle does not
change that.
    ¶57 One year later in his 1994 Petition, he raised numerous
claims of counsel’s ineffectiveness, some of which were precursors
to his current claims.9 The post-conviction court dismissed
Archuleta’s ineffective assistance claims because it concluded they
could have been raised on direct appeal. Archuleta II, 960 P.2d 399,
399 (Utah 1998). We held that this was error and reversed and
remanded Archuleta’s ineffective assistance claims for further
proceedings. Id.
    ¶58 On remand, Archuleta expanded on the ineffective
assistance claims he had previously asserted. In his 2002 Petition,
he substantially raised every one of the instances of conduct he
relies on now in Claims 2 and 3.10 The post-conviction court
__________________________________________________________
      9 For example, in Archuleta’s 1994 Petition, he alleged

(numbered to match Archuleta’s current petition): (3) “Counsel
failed to investigate or present available evidence in mitigation
. . . .”
   10  Archuleta raised substantially similar claims in his 2002
Petition as follows (numbered to match Archuleta’s current
petition): (2a) “Trial counsel failed to contact and interview David
Homer regarding his prospective testimony,” the meaning of the
phrase “ultimate rush,” and his “intent to lie in his testimony”;
(2b and 2c) “Trial counsel failed to discover that co-defendant
Lance Wood had been raped prior to the homicide of Gordon
Church while in custody” and “failed to follow up on information
he received that Lance Wood had taken responsibility for most of
the acts resulting in the death of Gordon Church”; (2d) “Trial
counsel failed to conduct a thorough, independent investigation
of the facts of the crime”; “Trial counsel failed to request funds
from the court or Millard County to retain forensic experts . . . .”;
(2e) “Trial counsel failed to object to the court’s inadequate
response to the third question from deliberating jurors,” which
related to the phrase “in the commission of”; (2f) “The prejudicial
effect of the sodomy evidence substantially outweighed its
probative value” and “this evidence could only inflame and
alienate jurors”; (2g) “Trial counsel failed to object to the
impermissible multiple counting of aggravating circumstances”
and “failed to submit a proper instruction on the burden of proof
as to the existence of aggravating circumstances other than those
                                                       (continued . . .)
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conducted a hearing on some claims, and ultimately ruled against
Archuleta on all of them. We affirmed the court’s ruling in
Archuleta III, 2011 UT 73, ¶¶ 35–145, 267 P.3d 232 (“We . . . affirm
the habeas court’s rejection of Archuleta’s claim that trial counsel
rendered ineffective assistance of counsel . . . .”).
2. Claim 4: Ineffective Assistance of Appellate and Post-
   Conviction Counsel
   ¶59 Archuleta claims that his appellate counsel was
ineffective for failing to raise and preserve claims related to the
“death-qualification” of the jury and the testimony of David
Homer. He also alleges that his post-conviction counsel was
ineffective for failing to raise the nine claims that a subsequent
post-conviction counsel raised in the 2009 rule 60(b) motion.
    ¶60 Archuleta raised the first ground for relief in his 1994
Petition, in which he asserted that he “received ineffective
assistance on appeal,” and that “[t]he death-qualification of [his]
jury” was unconstitutional. The post-conviction court ruled
against Archuleta. We reversed and remanded the post-conviction
court’s dismissal of Archuleta’s ineffective assistance claims.
Archuleta II, 960 P.2d at 399.
    ¶61 On remand in his 2002 Petition, Archuleta expanded
upon the first ground and raised the second ground he asserts
now. He argued that the death-qualification of the jury violated
numerous provisions of the Utah and United States constitutions.
He alleged that his trial counsel “failed to file a pretrial motion
objecting to the process of death-qualifying jurors, or to present an
adequate record on the effect of this procedure.” And he claimed
his appellate counsel was ineffective in not raising this claim. He
also argued that (1) his trial counsel was ineffective in failing to


found in the guilt phase”; (2h) “Trial counsel failed to object and
argue to the trial court that the Utah Death Penalty Scheme . . .
does not narrow the class of persons eligible for the death penalty
. . . in violation of the Fifth, Eighth and Fourteenth Amendments
to the United States Constitution and Article I, Sections 7 and 9 of
the Utah Constitution”; (2i) “Utah’s death penalty scheme is
unconstitutional on its face and as applied . . . because it creates a
presumption that death is the appropriate penalty . . . .”; and
(3) “Trial counsel failed to fully investigate, obtain and present
mitigation evidence . . . .”


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                       Opinion of the Court

adequately investigate David Homer and challenge Homer’s
testimony, (2) Homer’s testimony was unreliable and unduly
prejudicial, and (3) his appellate counsel was ineffective for not
raising these arguments. We addressed these claims in Archuleta
III, 2011 UT 73, ¶¶26–34, 149–51.
    ¶62 The third ground included in Claim 4 is that Archuleta’s
post-conviction counsel was ineffective for failing to make
numerous arguments that a subsequent post-conviction counsel
raised in the 2009 rule 60(b) motion. But this is the very argument
that subsequent post-conviction counsel made—first in the rule
60(b) motion and then to this court on appeal of the denial of that
motion. See id. ¶ 149 (“In advancing this [rule 60(b)(6)] claim,
Archuleta asserts nine counts of ineffective assistance of post-
conviction counsel.”).
    ¶63 We addressed this argument in 2011. We explained that
rule 60(b)(6) relief should be “sparingly invoked and used only in
unusual and exceptional circumstances.” Id. ¶ 153 (quoting
Menzies v. Galetka, 2006 UT 81, ¶ 71, 150 P.3d 480). But we
acknowledged that attorney negligence can constitute an unusual
and exceptional circumstance when the attorney “willfully
disregards a client’s interests” or “acts in a grossly negligent
fashion.” Id. (quoting Menzies, 2006 UT 81, ¶ 77). Accordingly, we
stated that “a district court may set aside a judgment under such a
scenario pursuant to rule 60(b)(6)’s catch-all provision.” Id. We
determined, however, that Archuleta’s allegations of post-
conviction counsel’s deficiency did not justify rule 60(b)(6) relief.
Id. ¶¶ 167–69. And we noted that “in cases like this one where
counsel diligently sought to serve his client’s interests, rule
60(b)(6) cannot be used to provide a habeas petitioner repeated
bites at the proverbial post-conviction apple.” Id. ¶ 168.
3. Claim 5: Disproportionate Sentence
   ¶64 Archuleta alleges that his sentence is disproportionate to
the sentence of his codefendant and other capital cases in Utah.
We ruled on this issue twenty-seven years ago in Archuleta I, 850
P.2d at 1248–49. There, we considered Archuleta’s direct appeal
from his conviction for murder and sentence of the death penalty.
One of Archuleta’s arguments on appeal was that “his sentence
[was] disproportionate when compared to his co-defendant’s and
with other capital cases in Utah.” Id. at 1249.




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4. Claim 6: The District Court Erred in Failing to Grant a Mistrial
   ¶65 In this claim, Archuleta argues that the district court
improperly refused to grant a mistrial based on the prosecution’s
presentation of false testimony. This relates to a witness who
provided previously undisclosed testimony that she saw
Archuleta shortly before the offense “wearing a knife in a
scabbard strapped to his right hip.” Id. at 1242. The district court
did not grant a mistrial but gave a curative instruction. Id.
    ¶66 Archuleta raised this argument on direct appeal. Id. He
specifically “attack[ed] the prosecution’s failure to disclose the
evidence and also claim[ed] that the State knowingly presented
false testimony at trial.” Id.
    ¶67 And this court ruled on Archuleta’s arguments. We held
that the State had violated its discovery duty, but we concluded
that the “scabbard testimony” was not “so prejudicial as to
undermine [the court’s] confidence in the verdict” and that “there
[was] no substantial likelihood that the outcome would have been
different absent its admission.” Id. at 1244 (footnote omitted).
5. Claim 7: The District Court Erred in Admitting Evidence of
   Sodomy
   ¶68 Archuleta contends that the district court improperly
admitted evidence of the uncharged offense of sodomy in
violation of his constitutional rights. Archuleta raised this issue on
direct appeal. Id. at 1237, 1241–42. We found “no abuse of
discretion” and affirmed the trial court. Id. at 1242.
   ¶69 Archuleta raised the issue again in his 2002 Petition. The
post-conviction court ruled that the claim was barred because it
had already been litigated, and we held that “this ruling of the
habeas court was correct.” Archuleta III, 2011 UT 73, ¶ 34 n.4.
6. Claim 8: Utah’s Death Penalty Scheme is Unconstitutional
    ¶70 Archuleta claims that Utah’s statutory death-penalty
scheme is unconstitutional because it: (a) does not require
sentencing juries to make written findings; (b) imposes a burden
on the defendant to overcome the evidence of conviction and
creates a presumption of death in sentencing; (c) fails to narrow
the class of persons eligible for the death sentence; and
(d) includes the “especially heinous, atrocious, cruel, or
exceptionally depraved manner” aggravator, which fails to
narrow eligibility for the death penalty because it is vague and
applies to “too broad of a range of offenses.”

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                       ARCHULETA v. STATE
                       Opinion of the Court

   ¶71 He raised this issue in his 1994 Petition.
    ¶72 In his 2002 Petition, Archuleta made all four of these
challenges to the constitutionality of Utah’s death penalty scheme.
He claimed that Utah’s statutory scheme is unconstitutional
because: (a) in part, the verdict forms in his case did not require
jurors to specify which aggravating circumstances they found;
(b) it creates a presumption that death is the appropriate sentence;
(c) it does not narrow the class of persons eligible for the death
penalty;11 and (d) the “especially heinous” aggravator is “vague
and overbroad on its face” and fails to narrow death eligibility. In
Archuleta III, we addressed each of these claims. 2011 UT 73 ¶¶ 26,
56–62, 67.
7. Claim 9: Prosecutorial Misconduct
    ¶73 Archuleta asserts that the prosecution in his case violated
the United States Supreme Court’s mandate in Brady v. Maryland,
373 U.S. 83 (1963), to disclose exculpatory and impeachment
evidence because it withheld evidence regarding the testimony of
an adverse witness, David Homer. Archuleta raised a similar
ground for relief in his 2009 rule 60(b) motion. He argued that
counsel was ineffective with respect to Homer’s testimony
because (1) Homer’s testimony that Archuleta told him that
killing the victim was the “ultimate high” “may have been the
very testimony that distinguished [Archuleta] from Wood in
receiving the death penalty,” (2) the State “planted” Homer “for
the purpose of interrogating [Archuleta] without the aid of
counsel,” (3) others’ testimony about Homer would have
supported Archuleta’s defense that Wood committed the murder,
and (4) the State’s failure to disclose the meeting with Homer to
Archuleta would amount to a Brady violation. The evidentiary
facts underlying his current claim are virtually identical to those
underlying his previous ineffective assistance of counsel claim,


__________________________________________________________
    11 As described above, supra ¶¶ 59, 62, Archuleta also claimed

in his 2002 Petition that his trial and appellate counsel were
ineffective for not making this argument. In Archuleta III, we
affirmed the post-conviction court’s ruling that counsel’s decision
not to raise this argument was not unreasonable, “[n]oting the
numerous cases from this court rejecting claims identical to
Archuleta’s.” 2011 UT 73, ¶¶ 59–61.


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                        Opinion of the Court

which the post-conviction court rejected and this court affirmed in
Archuleta III. See 2011 UT 73, ¶¶ 149–51.
    ¶74 And in addition to articulating this as an instance of
ineffectiveness, Archuleta asserted this ground as a stand-alone
Brady violation. He argued before this court that “the State
‘planted’ David Homer in [his] cell for the purpose of
interrogating him without the aid of counsel. This act violated
[his] right to a Miranda warning and justifies suppressing David
Homer’s testimony.” And he asserted that “the State’s failure to
disclose the meetings with David Homer . . . amount to a Brady
violation.”
8. Claim 10: Inadequate Record for Appellate Review
   ¶75 Archuleta claims the record is inadequate for meaningful
and effective review. He raised this ground for relief in his 2002
Petition. And we addressed this claim in Archuleta III. Id. ¶ 26
(explaining that one of “Archuleta’s substantive claims” was that
the “trial court failed to ensure a complete appellate record”).
9. Claim 11: Cumulative Error
    ¶76 Archuleta contends that the cumulative effect of these
errors violated his right to due process and a fair trial. Archuleta
made the same argument in his 2002 Petition. We rejected his
argument then, because he had “failed to establish any errors of
counsel that prejudiced his right to a fair trial.” Id. ¶ 146 (citation
omitted). Because Archuleta raises essentially the same claims
now, this argument is procedurally barred. See UTAH CODE
§ 78B-9-106(1)(d). And because we have not found any of his
claims to be viable, “the doctrine of cumulative error does not
apply.” Archuleta III, 2011 UT 73, ¶ 146 (citation omitted).
        B. Claims that Archuleta Could Have Raised Years Ago
   ¶77 We now address the two remaining claims that Archuleta
has not already raised but could have raised many years ago.
1. Claim 12: Cruel and Unusual Punishment
    ¶78 Archuleta also argues that it would violate his right to be
free from cruel and unusual punishment if we were to allow the
state to execute him after he has spent twenty-five years on death
row. Such an assertion is commonly referred to as a Lackey claim.
See Lackey v. Texas, 514 U.S. 1045, 1045 (1995) (Stevens. J., mem.)
(stating Justice Stevens’ position with respect to the denial of
certiorari). A “Lackey claim” is a “prisoner’s assertion that
incarceration on death row for a protracted period is cruel and

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                        Opinion of the Court

unusual punishment.” Lackey Claim, BLACK’S LAW DICTIONARY
(11th ed. 2019). We have denied such claims in two separate cases.
See State v. Lafferty, 2001 UT 19, ¶¶ 135–39, 20 P.3d 342; State v.
Andrews, 843 P.2d 1027, 1030–31 (Utah 1992).
    ¶79 While we have never found a Lackey claim to be viable or
addressed the parameters of such a claim, we have stated that
“[f]or Lackey claims not to undermine the death penalty
altogether, it is crucial that such claims fully ripen at some point
prior to the last day before execution.” Gardner v. State, 2010 UT
46, ¶ 85, 234 P.3d 1115. Such a claim is not immune from the
PCRA’s procedural and time bars.
    ¶80 Archuleta raised this claim twenty-five years after his
sentencing. Yet he does not sufficiently analyze how it is not
procedurally barred by explaining why he could not have raised it
in a prior post-conviction petition. See UTAH CODE
§ 78B-9-106(1)(d). And he does not adequately analyze how this
claim is not time barred by showing that he was unaware of the
facts on which he bases his claim—such as the “nature of his
incarceration,” Gardner, 2010 UT 46, ¶ 89, and the attendant harms
he invokes—for longer than a year prior to his filing of this
petition. See UTAH CODE § 78B-9-107(1), 2(e); see also Gardner, 2010
UT 46, ¶ 89. Because Archuleta has not adequately addressed why
this claim, raised for the first time twenty-five years after his
sentencing, is not procedurally barred and time barred, we
conclude that he has not met his burden of persuasion.
2. Claim 13: The Death Penalty is Unconstitutional
    ¶81 Finally, Archuleta challenges the constitutionality of the
death penalty generally. He asserts that imposition of the death
penalty is categorically cruel and unusual punishment in violation
of the Eighth Amendment to the United States Constitution.
    ¶82 Archuleta does not give an explanation as to how this
claim is not barred or why he could not have raised it previously.
In his memorandum in support of his petition, he acknowledges
that his argument is at odds with United States Supreme Court
precedent. See Gregg v. Georgia, 428 U.S. 153, 187 (1976). But he
asserts in his memorandum in support (but not in his briefing to
us) that “[e]mpirical evidence has emerged over the last thirty-six
years that has eroded the[] . . . justifications for the death penalty.”
In support, he cites a 2005 law review article. See Carol S. Steiker,
No, Capital Punishment Is Not Morally Required: Deterrence,
Deontology, and the Death Penalty, 58 STAN. L. REV. 751 (2005).

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                       Opinion of the Court

    ¶83 Beyond that, he does not explain what new evidence or
information he became aware of, and when he became aware of it,
to show (1) that this claim accrued no earlier than the year before
he filed his current petition, see UTAH CODE § 78B-9-107(1), (2)(e);
and (2) why he could not have raised this claim in a previous
request for post-conviction relief, id. § 78B-9-106(1)(d).
    ¶84 The post-conviction court noted that if the 2005 law
review article is the source of the evidence for his claim, he could
have brought this claim within a year of the publication of the
article. Archuleta argues that this is “illogical” and that “knowing
of a piece of scholarship is not the start point for any limitations
period.” But he does not tell us what is the starting point for this
claim and how it excuses the PCRA’s procedural and time bars.
    ¶85 Accordingly, we agree with the post-conviction court that
this claim is procedurally barred, because Archuleta has not given
any reason as to why he was unable to make this legal argument
during a prior post-conviction proceeding.
                         CONCLUSION
   ¶86 We conclude that no provision of the PCRA applies to
Archuleta’s Atkins claim. Thus, the PCRA does not provide an
avenue of relief for Archuleta’s Atkins claim and its procedural
bars do not apply. With respect to his twelve additional claims,
we determine they are each procedurally barred under the PCRA.
   ¶87 Accordingly, we affirm the post-conviction court’s
dismissal of Archuleta’s Atkins claim, not because it is barred by
the PCRA but because it is not cognizable under that statute. And
we affirm the post-conviction court’s grant of summary judgment
against his remaining claims.




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