Marchet v. State

2014 UT App 108
_________________________________________________________
THE UTAH COURT OF APPEALS
AZLEN ADIEU FARQUOIT MARCHET,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.
Per Curiam Decision
No. 20120820-CA
Filed May 15, 2014
Third District Court, Salt Lake Department
The Honorable John Paul Kennedy
No. 110918502
Azlen Adieu Farquoit Marchet, Appellant Pro Se
Sean D. Reyes and Mark C. Field, Attorneys for Appellee
Before JUDGES GREGORY K. ORME, STEPHEN L. ROTH, and
MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 Azlen Adieu Farquoit Marchet appeals the dismissal of his
petition for post-conviction relief. We affirm.
¶2 The district court dismissed Marchet’s petition for post-
conviction relief after determining that it was time barred under
Utah Code section 78B-9-107(1). “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.” Gardner v. State, 2010 UT 46, ¶ 55, 234 P.3d 1115 (citation and
internal quotation marks omitted).
¶3 Utah Code section 78B-9-107(1) states that “[a] petitioner is
entitled to relief only if the petition is filed within one year after the
cause of action has accrued.” Utah Code Ann. § 78B-9-107(1)

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20120820-CA 2 2014 UT App 108
(LexisNexis 2012). The statute goes on to set forth the dates upon
which the cause of action accrues:
(a) the last day for filing an appeal from the entry
of the final judgment of conviction, if no appeal is
taken;
(b) the entry of the decision of the appellate court
which has jurisdiction over the case, if an appeal is
taken;
(c) the last day for filing a petition for writ of
certiorari in the Utah Supreme Court or the United
States Supreme Court, if no petition for writ of
certiorari is filed;
(d) the entry of the denial of the petition for writ
of certiorari or the entry of the decision on the
petition for certiorari review, if a petition for writ of
certiorari is filed;
(e) the date on which petitioner knew or should
have known, in the exercise of reasonable diligence,
of evidentiary facts on which the petition is based; or
(f) the date on which the new rule described in
Subsection 78B-9-104(1)(f) is established.
Id. § 78B-9-107(2). Here, this court affirmed Marchet’s rape
conviction in 2009. Marchet then sought a writ of certiorari from
the Utah Supreme Court, which was denied on December 10, 2009.
Marchet had until March 9, 2010, to file a petition for writ of
certiorari with the United States Supreme Court, but he did not do
so. Accordingly, under the statute, Marchet was required to file his
petition for post-conviction relief no later than March 9, 2011, i.e.,
one year after the last day for filing a petition for writ of certiorari
in the United States Supreme Court, unless subsections (e) or (f)
were applicable.
¶4 Marchet filed his petition for post-conviction relief in the
district court on October 18, 2011. The State, in turn, filed a motion
to dismiss arguing that the petition was time barred under section
78B-9-107. Marchet acknowledged that the petition was not filed
within one year of the date he could have filed a petition for a writ

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20120820-CA 3 2014 UT App 108
of certiorari with the United States Supreme Court. However, he
argued that his petition should be considered timely because on
August 30, 2010, he sent a document to this court requesting “an
extension of time to pursue expert counsel to appeal to the United
States Supreme Court as well as 65C Post-Conviction Relief.” He
asserted that this document should be considered a notice of intent
to petition for post-conviction relief and that it should save his
petition for purposes of the statute. Marchet’s argument is
misplaced.
¶5 Marchet’s August 30, 2010 letter to this court did not satisfy
the requirements of the post-conviction remedies act or rule 65C of
the Utah Rules of Civil Procedure. Contrary to Marchet’s
argument, the rule requires a petition to be filed, not a notice of an
intent to file a petition. See Utah R. Civ. P. 65C(c). Accordingly, the
August 30, 2010 letter could satisfy the time requirement of Utah
Code section 78A-9-107 only if the letter qualified as a petition for
post-conviction relief. It did not. First, rule 65C requires the petition
to be filed in the district court “in the county in which the judgment
of conviction was entered.” Utah R. Civ. P. 65C(c). The letter was
filed in this court, not the district court. Accordingly, the letter
failed to satisfy this jurisdictional requirement. Second, the letter
cannot be construed as a petition for post-conviction relief, because
it contained none of the information required by rule 65C(d). See id.
R. 65C(d). Finally, the letter was actually related to a different case
and only mentioned this case as being affected by the potential
result in that case. Accordingly, under the circumstances, the
August 30, 2010 letter cannot be construed as a petition for post-
conviction relief in order to satisfy the filing requirements of Utah
Code section 78A-9-107. Because Marchet’s petition for post-
conviction relief was not filed until after the one-year statute of
limitations had passed, the district court correctly determined that
Marchet’s petition was time barred.
¶6 Affirmed.