McNair v. State

2014 UT App 127
_________________________________________________________
THE UTAH COURT OF APPEALS
EUGENE S. MCNAIR,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.
Opinion
No. 20110766-CA
Filed June 5, 2014
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 100901725
Troy L. Booher and Beth E. Kennedy, Attorneys
for Appellant
Sean D. Reyes and Erin Riley, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.
ORME, Judge:
¶1 Eugene S. McNair appeals the dismissal of his petition
seeking post-conviction relief from his conviction for rape, a first
degree felony. He argues that the trial court erred in granting the
State’s rule 12(b)(6) motion to dismiss his petition as untimely. See
Utah R. Civ. P. 12(b)(6). Because we conclude that the allegations
in McNair’s pro se petition, as bolstered by his response to the
State’s motion to dismiss, were sufficient to survive dismissal, we
reverse.

McNair v. State
1. “On appeal from a motion to dismiss, ‘we review the facts only
as they are alleged in the complaint.’ We accept the factual
allegations as true and draw all reasonable inferences from those
facts in a light most favorable to the plaintiff.” Peck v. State, 2008 UT
39, ¶ 2, 191 P.3d 4 (quoting Hall v. Department of Corrections, 2001
UT 34, ¶ 2, 24 P.3d 958).
2. Because the provisions in effect at the relevant time do not differ
in any way material to our analysis from the statutory provisions
now in effect, we cite the current edition of the Utah Code
Annotated as a convenience to the reader.
20110766-CA 2 2014 UT App 127
BACKGROUND1
¶2 McNair has a mental disability as a result of fetal alcohol
syndrome that prevents him from reading and writing and
otherwise limits his intellectual abilities. In 2006, the State charged
McNair with one count of rape, one count of forcible sodomy, and
one count of forcible sexual abuse. McNair submitted a blood
sample for a DNA test. Without knowing the results of the DNA
test and acting on the advice of his trial counsel, McNair pled guilty
a month later to one count of rape and was sentenced to prison.
The State dropped the additional charges pending against McNair.
More than two years later, McNair’s trial counsel mailed him a
copy of the DNA test results without any comment or advice.
McNair got someone to read him the results and learned for the
first time that the DNA samples taken from the victim’s vaginal
and perineal/anal swabs did not match his DNA. McNair asserts
that he would not have pled guilty if trial counsel had shared the
results of the exculpatory DNA test with him in timely fashion.
¶3 Under the Post-Conviction Remedies Act (the PCRA),
McNair had one year from the day he received the letter to
challenge his conviction. See Utah Code Ann. § 78B-9-107(1)–(2)
(LexisNexis 2012) (“A petitioner is entitled to relief only if the2
petition is filed within one year after . . . the date on which

McNair v. State
3. After filing his pro se petition and after responding pro se to the
State’s motion to dismiss, McNair was assigned a pro bono
attorney who filed a supplemental petition, which the State moved
to dismiss as well. On appeal, neither party argues that the second
petition supplants the original pro se filings. Because the second
petition unnecessarily complicates the issue, we omit it from our
analysis and focus only on McNair’s pro se petition and pro se
response.
20110766-CA 3 2014 UT App 127
petitioner knew or should have known . . . of evidentiary facts on
which the petition is based[.]”). Apparently unaware of the PCRA
or the statute of limitations contained in Utah Code section 78B-9-
107, McNair decided he would present the letter to the Utah Board
of Pardons and Parole at his next parole hearing. McNair
eventually changed course and, with the help of contract attorneys
at the prison, filed a pro se petition for post-conviction relief. This3
filing, however, was accomplished nearly one month beyond the
one year that McNair had in which to file his petition upon learning
of the DNA test results.
¶4 In his pro se petition, McNair explained that he was
“mentally challenged and was not aware that he could file for post
conviction relief.” He then asked the trial court, in the “interest of
justice,” to accept the petition even though it was late.
¶5 The State filed a motion to dismiss under rules 12(b)(6) and
65C of the Utah Rules of Civil Procedure. In its motion, the State
argued that an amendment to the PCRA replaced the “interests of
justice” exception to the statute of limitations with a tolling
provision and that because McNair failed to explicitly assert that he
was entitled to have the statute of limitations tolled due to his
mental incapacity, his petition was untimely. See Utah Code Ann.
§ 78B-9-107(3) & amend. notes. In his pro se response to the State’s
motion, McNair acknowledged that the State “correctly note[d]
that the ‘int[e]rest of justice’ exception was part of an older version
of the PCR[A] statute” but maintained that he should still be

McNair v. State
4. McNair’s contention finds some support in Gardner v. State, 2010
UT 46, 234 P.3d 1115. In Gardner, the Utah Supreme Court declined
to decide whether a constitutional interests-of-justice exception
applies to the PCRA’s statute of limitations following the 2008
amendments but held that the Court still “retains constitutional
authority, even when a petition is procedurally barred, to
determine whether denying relief would result in an egregious
injustice.” Id. ¶ 93. However, because we resolve this appeal on
other grounds, it is unnecessary for us to reach this question.
20110766-CA 4 2014 UT App 127
entitled to relief under the PCRA’s tolling provision. McNair
explained:
The State is wrong. The “int[e]rest of justice” will
always be of fundamental importance whether
written into a statute or not. Furthermore, . . . Mr.[4]
McNair suffers from fetal alcohol syndrome. The
State has argued that Mr. McNair’s claim of being
“mentally challenged” is without merit because he
filed his petition pro se. The State is wrong. Fact is
the prison’s provided contract attorneys . . . drafted
and filed Mr. McNair’s petition based on what he
verbally conveyed to them. Mr. McNair is incapable
of reading or writing the simplest of sentences.
The trial court granted the State’s motion and dismissed McNair’s
petition as time barred. In the trial court’s findings of fact and
conclusions of law, it agreed with the State and specifically
concluded that the “tolling provision does not apply in this case.”
McNair now appeals that decision.
ISSUE AND STANDARD OF REVIEW
¶6 McNair argues that because he adequately alleged facts
suggesting mental incapacity, thus necessarily suggesting the

McNair v. State
5. McNair alternatively asserts that his statutorily authorized post-
conviction counsel provided ineffective assistance. Because we
reverse based on the sufficiency of the allegations contained in
McNair’s petition, we do not consider his alternative argument.
20110766-CA 5 2014 UT App 127
propriety of tolling the statute of limitations, the trial court erred
in dismissing his petition under rule 12(b)(6). “We review an5
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. Galetka, 2004 UT 42, ¶ 7, 94
P.3d 263) (citation and internal quotation marks omitted). When
reviewing a dismissal based on rule 12(b)(6) of the Utah Rules of
Civil Procedure, we must accept the material allegations in the
petition as true, and we will affirm the dismissal only if the
petitioner has failed to state a claim for which relief can be granted,
i.e., if he “can prove no set of facts in support of his claim.” See
Colman v. Utah State Land Bd., 795 P.2d 622, 624 (Utah 1990).
ANALYSIS
I. Preservation
¶7 As a preliminary matter, the State contends that McNair
failed to preserve the issue of tolling the statute of limitations due
to mental incapacity and that we therefore should not consider this
claim on appeal. “‘[I]n order to preserve an issue for appeal[,] the
issue must be presented to the trial court in such a way that the
trial court has an opportunity to rule on that issue.’” 438 Main St.
v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (alterations in
original) (quoting Brookside Mobile Home Park, Ltd. v. Peebles, 2002
UT 48, ¶ 14, 48 P.3d 968).
¶8 The original petition, in which McNair explained his mental
limitations and asked the court to consider the petition in the
interests of justice was, perhaps, not as straightforward as it could

McNair v. State
20110766-CA 6 2014 UT App 127
have been in preserving this issue. But the State understood the
tolling provision to be at issue and explicitly addressed the tolling
provision in its motion to dismiss. McNair then argued in his
response that the State was wrong about the applicability of the
tolling provision. And lest there be any lingering doubt about
whether the issue was “presented to the trial court in such a way
that the trial court ha[d] an opportunity to rule on th[e] issue,” see
438 Main St., 2004 UT 72, ¶ 51 (citation and internal quotation
marks omitted), the trial court specifically ruled that the “tolling
provision does not apply in this case.” Thus, we readily conclude
that the issue was sufficiently presented to the trial court to be
preserved for appeal. See id.
II. Sufficiency of the Allegations
¶9 McNair contends that dismissal under rule 12(b)(6) was
improper because he sufficiently raised the issue of his mental
incapacity and its connection to his failure to timely file his petition.
The pleading standards for a post-conviction petition are not
strictly a function of the general pleading rules but, rather, are set
out in rule 65C of the Utah Rules of Civil Procedure, which
“governs proceedings in all petitions for post-conviction relief filed
under” the PCRA. See Utah R. Civ. P. 65C(a). Rule 65C requires that
a petition contain, “in plain and concise terms, all of the facts that
form the basis of the petitioner’s claim to relief.” Id. R. 65C(d)(3).
This is a somewhat higher standard than the general pleading
standard found in rule 8(a). See id. R. 8(a)(1) (requiring that
pleadings contain “a short and plain . . . statement of the claim
showing that the party is entitled to relief”).
¶10 When dealing with petitions under the PCRA, if there is a
conflict between rule 65C and other rules of civil procedure, the
more specific rule 65C is controlling. See id. R. 65C(a). However,
when rule 65C is silent or does not conflict with another rule, the
other civil procedure rules fully apply to post-conviction
proceedings. This includes rule 8(f), which conflicts in no way with

McNair v. State
20110766-CA 7 2014 UT App 127
rule 65C and requires us to construe all pleadings so as “to do
substantial justice.” See id. R. 8(f). As a result, we must hold
McNair’s petition to the higher pleading standard found in rule
65C, while construing the petition as a whole in such a way as to
promote substantial justice. See id.; Geros v. Harries, 236 P. 220, 222
(Utah 1925) (“In determining the sufficiency of the allegations of a
complaint, . . . one must not have recourse to only certain parts of
the complaint, but must determine the effect that should be given
to the complaint when considered as a whole.”).
¶11 Furthermore, the State recognizes the vitality of the other
rules of civil procedure insofar as they are not in conflict with rule
65C by correctly noting that “the respondent [to a petition] may file
a motion to dismiss” even though rule 65C does not explicitly
authorize a respondent to do so. See Utah R. Civ. P. 65C(h)(1)
(allowing the assigned judge to summarily dismiss a facially
frivolous claim but containing no provision allowing a respondent
to file a motion to dismiss); id. R. 65C(k) (describing how a
petitioner may respond to a motion to dismiss). In this case, the
trial court did not summarily dismiss the petition, and the State
was appropriately allowed to file a motion to dismiss—not under
rule 65C, which is silent on the subject, but under rule 12(b)(6),
which coexists with rule 65C to the extent that it is not displaced by
it. As a result, we construe McNair’s response to the State’s motion
to dismiss under the general body of civil procedure rules.
¶12 Finally, in general, a pro se document
is to be liberally construed. . . . [H]owever inartfully
pleaded, [it] must be held to less stringent standards
than formal pleadings drafted by lawyers and can
only be dismissed . . . if it appears beyond doubt that
the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.

McNair v. State
20110766-CA 8 2014 UT App 127
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citations and internal
quotation marks omitted) (discussing pleading requirements under
the Federal Rules of Civil Procedure). See State v. Winfield, 2006 UT
4, ¶ 19, 128 P.3d 1171 (holding that pro se litigants should be
“accorded every consideration that may reasonably be indulged”)
(citations and internal quotation marks omitted). Applying these
principles to McNair’s original petition, as further illuminated by
his response to the State’s motion to dismiss, we conclude that he
sufficiently raised the issue of his mental incapacity in connection
with the tolling provision such that dismissal of his petition at this
early stage was improper.
¶13 McNair’s original petition, construed liberally to do
substantial justice, contains “all of the facts that form the basis of
the petitioner’s claim to relief.” See Utah R. Civ. P. 65C(d)(3). It is
true that these facts were inartfully squared with the provisions of
the PCRA and that the petition failed to explicitly ask the trial court
to toll the statute of limitations due to McNair’s mental incapacity.
But McNair did ask the court to consider the petition even though
it was late, explaining that McNair was “mentally challenged” due
to fetal alcohol syndrome. Indulging all the consideration to which
a pro se petitioner is entitled, we conclude that McNair’s petition
raised all the facts necessary to survive the State’s motion to
dismiss.
¶14 Additionally, in his response to the State’s motion to
dismiss, McNair explicitly mentions the tolling provision and then
makes factual allegations about his mental incapacity. Nonetheless,
the State argues, as it did below, that McNair never sufficiently
connected his mental incapacity with the tolling provision. Indeed,
between McNair’s assertion that the tolling provision applied and
his factual allegations about his mental incapacity, he inserted one
sentence—almost as an aside—about the “interest of justice”
exception. But we do not construe a response defending a pro se
petition by reading discrete sentences in isolation. Instead, we
“determine the effect that should be given [to them] when

McNair v. State
20110766-CA 9 2014 UT App 127
considered as a whole.” Cf. Geros, 236 P. at 222 (construing a
complaint). It is also true that McNair failed to use the word
“because” to connect his assertion that the tolling provision applied
with his claimed mental incapacity. However, indulging all the
consideration to which a pro se petitioner is entitled, it would be
untenable if McNair’s petition should fail for lack of the word
“because.” Therefore, we construe the response to effectively read:
“The State is wrong” when it argues that the tolling provision does
not apply because “McNair suffers from fetal alcohol syndrome”
and “is incapable of reading or writing,” which prevented him
from timely filing his petition. Such a construction is consistent
with the document as a whole, does not hold McNair to the
stringent and formal standards reserved for attorneys, does
substantial justice, and does not exceed what may “reasonably be
indulged” under the circumstances. See Winfield, 2006 UT 4, ¶ 19.
¶15 Reviewing the State’s motion to dismiss under rule 12(b)(6),
we must “accept the factual allegations as true and draw all
reasonable inferences from those facts in a light most favorable to”
McNair. See Peck v. State, 2008 UT 39, ¶ 2, 191 P.3d 4. As a result, we
assume exactly what McNair asserts both in his petition and in his
response to the State’s motion to dismiss: that he has mental
limitations due to fetal alcohol syndrome. We then make the
reasonable inference that McNair’s mental condition was the cause
of his failure to timely file his petition. This was sufficient to
survive the State’s motion to dismiss for lack of timeliness, and the
trial court therefore erred in granting the State’s motion on those
grounds.
¶16 This of course does not mean that McNair’s petition cannot
ultimately be denied as untimely. The State will now have the
opportunity to answer the petition and perhaps it will plead the
statute of limitations as an affirmative defense. See Utah R. Civ. P.
8(c). The trial court will have the chance to consider the State’s
evidence in support of that defense as well as McNair’s evidence

McNair v. State
20110766-CA 10 2014 UT App 127
that the statute of limitations should be tolled due to his mental
incapacity.
CONCLUSION
¶17 We determine that while rule 65C of the Utah Rules of Civil
Procedure governs post-conviction petitions, the general body of
civil procedure rules still applies when there is no direct conflict
with rule 65C. Therefore, McNair’s petition is held to the somewhat
higher pleading standard contained in rule 65C(d)(3), but it is also
subject to rule 8(f), which requires us to construe his petition to do
substantial justice. Since rule 12(b)(6) does not conflict with rule
65C, we assume all facts and reasonable inferences contained in the
petition, as clarified in the response to the State’s motion to dismiss,
in the light most favorable to McNair. Construing the petition and
the response liberally, as is appropriate in the case of a pro se
petitioner, we conclude that McNair’s assertions were sufficient to
survive the State’s motion to dismiss. Accordingly, we reverse the
dismissal of McNair’s petition and remand the case to the trial
court for such proceedings as may now be in order.