Opinion
No. 11060.
October 1, 1968.
Appeal from the Second District Court of Weber County, Charles G. Cowley, J.
Paul D. Vernieu, Weber County Bar Legal Services, Ogden, for appellant.
Phil L. Hansen, Atty. Gen., Gerald G. Gundry, Asst. Atty. Gen., Salt Lake City, for respondent.
Petitioner, Raymond Dodge, applied for a writ of habeas corpus which, after a hearing, was denied by the trial court. He subsequently filed another petition with that court alleging the same grounds as had been contained in his first petition. However, he amended his second petition asserting for the first time that the application to his case of the Utah Habitual Criminal Statute denied him his constitutional right to equal protection of the law. The court below dismissed this second petition, as amended, and petitioner appeals.
The recent case of Wood v. Turner is dispositive of this appeal. In that case this court stated:
19 Utah 2d 133, 427 P.2d 397 (1967); see also: Burleigh v. Turner, 15 Utah 2d 118, 388 P.2d 412 (1964); and Bryant v. Turner, 19 Utah 2d 284, 431 P.2d 121 (1967).
The issue of the validity of the appellant's present detention * * * is res judicata. Since appellant could have tendered the issues upon which he now seeks relief in the first habeas corpus proceeding but failed to do so, he is barred from presenting them for judicial determination.
This is so, even though the issue relating to the habitual criminal proceedings, which could have been raised in the first petition, alleged a denial of a constitutional right.
Affirmed.
CROCKETT, C. J., and TUCKETT, HENRIOD and ELLETT, JJ., concur.