Honie v. Crowther
Filing
120
MEMORANDUM DECISION AND ORDER denying 107 Motion to Stay. Signed by Judge Julie A. Robinson on 12/13/2017. (JAR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
TABERON DAVE HONIE,
MEMORANDUM DECISION
AND ORDER
Petitioner,
v.
Case No. 2:07-CV-628 JAR
SCOTT CROWTHER, Warden, Utah State
Prison,
Judge Julie A. Robinson
Respondent.
Before this court is Mr. Honie's motion pursuant to Rhines v. Weber, 544 U.S. 269
(2005), requesting that this court stay his federal case and hold it in abeyance while he exhausts
ce1iain of his claims in state court proceedings. ECF No. 107. Mr. Honie seeks to exhaust in state
court the following three unexhausted claims: (1) trial counsel's failure to object to the admission
of several allegedly prejudicial photographs (claim eight), (2) trial counsel's failure to object to
the State's use of allegedly prejudicial victim impact evidence (claim nine), and (3) trial
counsel's failure to preserve, and appellate counsel's failure to adequately brief Mr. Honie's
appellate claims (claim eleven) .1 After careful consideration of the briefing (ECF Nos, 107, 111,
and 119) and the applicable law, the court denies Honie's motion for the following reasons.
I.
PROCEDURAL BACKGROUND
On July 9, 1998, Mr. Honie broke into Claudia Benn's home and brntally murdered her.
A jury convicted Honie of aggravated murder. Honie waived a sentencing jury, and the trial
1
Mr. Honie does not seek to exhaust claim ten, claim thirteen, or claim fourteen, and has stated that he will request
to withdraw these claims once his stay and abeyance proceedings are resolved.
court sentenced him to death. See generally Honie v. State, 342 P.3d 182 (Utah 2014); State v.
Honie, 57 P.3d 977 (Utah 2002), cert. denied Honie v. Utah, 537 U.S. 863 (Oct. 7, 2002).
Honie sought state post-conviction relief. He filed an amended petition in 2003. PCR
19-92. 2 The state district court granted the State summary judgment on most of the petition four
years later. PCR 965-1070. After discovery on the remaining claims, the State again moved for
summary judgment on the outstanding claims. PCR 1266-13 62. Three and a half years later,
Honie responded to the State's second summary judgment motion. PCR 3206-78. In 2011, the
state district court granted summary judgment in full and denied Honie post-conviction relief.
PCR 3315-48. Honie appealed that ruling with the assistance of his current federal defenders.
PCR 3349-51; Docket case no. 20110620-SC.
While that appeal was pending, Honie filed a motion to set aside the judgment under Rule
60(b), Utah Rules of Civil Procedure. PCR 3320-3556. After full briefing, the district court
denied the motion. ECF No. 70-2, ex. B. Honie appealed that ruling as well, again with the
assistance of his current federal defenders. Docket case no. 20120220-SC. The Utah Supreme
Court consolidated both appeals, and on May 30, 2014, the comi affirmed. Honie v. State, 342
P.3d 182 (Utah 2014).
Honie filed his federal petition on May 18, 2015. ECF No. 47. After the petition was
fully briefed, this court ruled on the procedural status of the claims in the petition, finding that 8,
9, 10, 11 and 13 were not exhausted because the Utah Supreme Court had not reviewed them.
Honie then filed this Rhines motion asking for a stay and abeyance to exhaust only claims 8, 9,
and 11. ECF No. 107.
2
The court will cite to the record ofHonie's state post-conviction proceedings, Utah Fifth Judicial District, Iron
County case no. 030500157, as "PCR" and the Bates-stamped page numbers, for example PCR 431. A copy of this
record is filed with the clerk's office in conjunction with ECF No. 89.
2
II.
LEGAL FRAMEWORK
District courts have inherent authority to issue stays, and AEDPA does not deprive comis
of that authority. But it does limit their discretion to exercise that authority because a stay
pursuant to Rhines creates tension between AEDP A's goals of federalism and comity and its goal
of streamlining the federal habeas process. As a result any stay under Rhines cannot be
indefinite and must meet certain criteria. The petitioner must show that (1) good cause exists for
his failure to exhaust, (2) his unexhausted claims are potentially meritorious, and (3) he has not
engaged in abusive litigation tactics or intentional delay. Rhines, 544 U.S. at 276-78. "Petitioner,
as movant, has the burden to show he is entitled to a stay under the Rhines factors." Carter v.
Friel, 415F.Supp.2d1314, 1317 (D. Utah2006) ..
A. Intentionally Dilatory Litigation Tactics
The court will first address the third Rhines requirement, which is that the petitioner
show that he has not engaged in "abusive litigation tactics or intentional delay." Rhines, 544 U.S.
at 277-78. This requirement recognizes that "capital petitioners might deliberately engage in
dilatory tactics to prolong their incarceration and avoid execution of the sentence of death.
Without time limits, petitioners could frustrate AEDP A's goal of finality by dragging out
indefinitely their federal habeas review." Id The State argues that Honie's Rhines motion is
dilatory. According to the State, Honie's decision to wait nearly fourteen years after raising
claims in state court, abandoning them on appeal, then seeking a second round of state review to
relitigate the same claims "flouts the AEDPA's purpose of 'reduc[ing] delays in the execution of
... capital cases."' Rhines, 544 U.S. at 276 (quoting Woodford v. Garceau, 538 U.S. 202, 206
(2003). Although Honie notes that he has simply complied with the requirements of the case
3
management schedule as stipulated to by the parties and ordered by the court, the State argues
that the case management schedule did not prohibit Honie from requesting a Rhines stay earlier.
Honie argues that his initial post-conviction counsel was ineffective for failing to
adequately raise claims eight, nine and eleven when he raised all three of them in his state postconviction petition as one-line unsupported general assertions. PCR 65-67. The State District
Court agreed with the State that Honie had alleged insufficient facts to support his claims and
granted the State's motion to dismiss based on post-conviction counsel's failure to comply with
the Utah Rules of Civil Procedure 65C(c)(3) and (d)(l). PCR 989. Honie argues that it would
have been improper for him to raise claims eight, nine, and eleven on appeal to the Utah
Supreme Court after initial post-conviction counsel failed to adequately preserve these claims.
See Utah R. Prof'! conduct 3.1 ("A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for doing so that is not
frivolous, which includes a good-faith argument for an extension, modification or reversal of
existing law."). Honie asserts that he had no choice but to omit these unpreserved claims in his
appeal to the Utah Supreme Comi of the denial of his state post-conviction petition, and to raise
them properly in his federal petition.
The State argues that Honie should have filed a second state post-conviction petition in
order to exhaust claims eight, nine and eleven prior to now. However, exhaustion is an
affirmative defense that must be raised by the State. So until the State raised the defense that
these claims are unexhausted and the court ruled that the claims were unexhausted, Mr. Honie
had no reason to seek leave to retum to state comi to exhaust them. This court ruled on March
20, 2017 that these claims are not exhausted because they were not reviewed by the highest state
4
comi. Honie filed his Rhines motion on May 19, 2017. The court does not find Honie to have
engaged in intentional or abusive dilatory litigation tactics.
B. Good Cause
While the United States Supreme Court in Rhines required that the petitioner show that
good cause exists for his failure to exhaust, the Court did not define with any precision what
constitutes "good cause." One month after the Rhines decision, however, the Court stated that
"[a] petitioner's reasonable confusion about whether a state filing would be timely will ordinarily
constitute 'good cause' to excuse his failure to exhaust." Pace v. DiGuglielmo, 544 U.S. 408,
416-17 (2005).
Since the Pace decision, district courts have reached different conclusions about whether
good cause in the Rhines context is akin to good cause to excuse procedural default in federal
comi (which is a high standard that allows the district court to consider the merits of a defaulted
claim) or a more expansive and equitable reading of good cause (which is a lower standard that
simply allows the claim to return to the state court for merits review). Compare Hernandez v.
Sullivan, 397 F. Supp.2d 1205, 1207 (C.D. Cal. 2005) (comis should look to procedural default
law to determine cause), with Rhines v. Weber, 408 F.Supp.2d 844, 848-49 (D.S.D. 2005)
(Rhines II) (rejecting procedural default analysis for cause in exhaustion context). Based in part
on those different standards, some district courts have found that ineffective assistance of postconviction counsel constitutes good cause for failure to exhaust. See, e.g., Vasquez v. Parrott,
397 F.Supp.2d 452, 464-65 (S.D.N.Y. 2005); See also Rhines II
The Tenth Circuit Court of Appeals has not addressed what constitutes "good cause" in
the context of a Rhines motion. The only circuit court to directly address whether the good cause
standard should be high or low is the Ninth Circuit. In Blake v. Baker, 745 F.3d 977 (9th Cir.
5
2014), the court followed Pace and Rhines II to find that good cause for a Rhines stay cannot be
any more demanding than a showing of cause for procedural default under Martinez v. Ryan, 132
S. Ct. 1309 (2012), and, in fact, may be less demanding.
In three recent cases in the United States District Court for the District of Utah, the
district court judges clarified "good cause" in the context of a Rhines motion. Kell v. Crowther,
2:07-CV-359, ECF No. 258 (D. Utah Nov. 16, 2017); Lafferty v. Crowther, No. 2:07-CV-322,
ECF No. 379 (D. Utah Oct. 30, 2015); Archuleta v. Crowther, No. 2:07-CV-630, ECF No. 107
(D. Utah Nov. 12, 2014). All of the courts found the analysis of Blake and Rhines II persuasive
because in the Rhines context a petitioner is returning to state court to allow the state court to
consider his claims. As Honie notes in his motion, "[t]he courts' reasoning reflects the important
distinction between the 'good cause' necessary to excuse the default of state claims, allowing for
federal review of a claim, and the 'good cause' necessary to excuse the default of state claims,
allowing a petitioner to return to state court in order to afford the state court the first opportunity
to consider the claim." ECF No. 107 at 6 (emphasis in original). "Good cause" in the context of
a stay and abeyance procedure is distinct in that the federal court is not preventing the state court
from reviewing a claim, rather it is deciding whether a stay is permissible so that the state court
can first review the claims before it is presented in federal court.
Honie argues that he has good cause for failing to exhaust his claims because his postconviction counsel was ineffective for failing to properly raise these claims in his postconviction petition. Post-conviction counsel raised all of these claims in his post-conviction
petition as one-line claims:
•
"Trial counsel did not object to the presentation of highly prejudicial victim impact
testimony."
6
•
"Trial counsel did not object when the prosecutor made his 'drunken Indian' argument."
•
"Trial counsel did not object to the admission of highly prejudicial photographs having
little or no probative effect, including gruesome corpse photographs, and photographs of
Honie in the nude and bloody, ofHonie's penis and scrotum, and of the children at the
scene of the crime."
•
"Trial counsel did not file an objection to the trial court's factual and legal errors in his
death penalty calculus."
•
Counsel noted that only one claim was preserved for appeal, and "[t]he Utah Supreme
Court repeatedly faulted appellate counsel for insufficient briefing, and declined to reach
insufficiently briefed issues raised on appeal."
PCR 65-67. Post-conviction counsel did not cite to any case law or provide any analysis as to
any of these claims in Honie's post-conviction petition. Honie also argues that while counsel
briefly addressed the victim impact evidence argument in the opposition to summary judgment, it
was inadequately briefed. See PCR 786-793.
This court has held that in order "[t]o exhaust each claim, Mr. Honie had to give the state
court a fair opportunity to rule on it," which includes properly raising these claims before the
state's highest court. ECF No. 103 at 4. Honie asserts that because post-conviction counsel
failed to properly raise these claims in Mr. Honie's post-conviction petition and opposition to
summary judgment, the claims could not be raised in his post-conviction appeal. The court finds
that under the standard articulated above, Honie has shown good cause for his failure to exhaust,
with the following two exceptions.
7
i. No good cause for failure to exhaust claim nine
Honie argues that he has good cause for failing to exhaust claims eight, nine and eleven
because his post-conviction counsel's inadequate pleading of the claims in state district court
meant that the claims were not preserved, thus preventing him from raising them in the Utah
Supreme Court. Claim nine, however, actually was preserved for the post-conviction appeal;
Honie simply chose not to raise it in the Utah Supreme Court. Honie acknowledges that in his
memorandum opposing summary judgment, his initial post-conviction counsel supported claim
nine with facts and argument. In his seven pages analyzing this claim, counsel argued that trial
counsel was ineffective for not objecting to victim-impact evidence concerning Claudia's
contributions to her tribe, her "value as a role model for youth and as a tribal member," and her
role in the University of Utah's Women's Center. He cited and relied on language from Utah's
victim-impact evidence statute and case law, and provided several citations to the trial
record. Compare PCR 786-93 with ECF No. 47 at 224-31 (claim nine).
Honie could have appealed the denial of claim nine, but chose instead to focus appellate
resources on other, better claims. He had his day in court on this claim. He thus fails to show
good cause for his failure to exhaust claim nine.
ii. No good cause for failure to exhaust claim eleven
Honie also presented more than notice-pleading on part of claim eleven in the state
district court. In his memorandum opposing summary judgment, Honie argued that his counsel
on direct appeal was ineffective for not adequately briefing Honie's claim faulting the prosecutor
for his "ethnic statement" and his claim challenging Utah's victim-impact statute under the state
constitution. PCR 785-86. In the memorandum, Honie cited to the Utah Supreme Court's
opinion affirming his conviction and sentence on direct appeal, to Payne v. Tennessee, 501 U.S.
8
808 (1991), and to Utah's victim-impact evidence statute. Again, Honie could have appealed the
denial of at least this portion of claim eleven, but chose not to do so.
Therefore the court finds that while Honie has shown good cause for his failure to
exhaust claim eight and part of claim eleven, he has not shown good cause with regards to claim
nine and the remainder of claim eleven.
C. Potentially Meritorious
The third requirement for staying a federal case is that the unexhausted claims must be
"potentially meritorious," or in other words, not "plainly meritless." Rhines, 544 U.S. at 277-78.
Honie argues that his claims are potentially meritorious because he has raised colorable federal
claims. ECF No. 119 at 11. He argues that the facts he has alleged, plausibly assert a claim under
the federal constitution. Id.
The State argues that this hurdle is less about the substance of a claim and more about the
procedural way that it would be presented to, and treated by, the state courts. The State argues
that Honie's claims are plainly meritless within the meaning of Rhines because time and
procedural bars would prevent Honie from exhausting the merits of his claims in state court. ECF
No. 111 at 19.
The comi in Lafferty, when addressing the identical argument-that Mr. Laffe1iy' s
claims were not potentially meritorious because they would be barred in state court-held the
following: "The Utah Supreme Court may agree with the state. It may not. But it is the state
court, not the federal court, that should determine the procedural posture of a claim." Lafferty
Order at 9. "Whether a state remedy is presently available is a question of state law as to which
only the state courts may speak with final authority." Simpson v. Camper, 927 F.2d 392, 393 (8th
Cir. 1991). "[A] federal comi always must be chary about reaching a conclusion, based upon a
9
speculative analysis of what a state court might do, that a particular claim is procedurally
foreclosed." Pike v. Guarino, 492 F.3d 61, 74 (1st Cir. 2007). "If the state court resolves the
unexhausted claim on a procedural ground, such as a procedural bar under state law, [then] the
federal court will review that disposition, applying the standard of review that is appropriate
under the circumstances." Fairchild v. Workman, 579 F.3d 1134, 1153 (10th Cir. 2009).
Federalism and comity require that state comis have the opportunity to make state law
procedural decisions.
Therefore, in considering whether Honie's claims are potentially meritorious, the court
will not address possible state comi time and procedural bars, but will consider only the merits of
the claim.
i. Claim eight is not potentially meritorious
Honie argues in claim eight that his trial counsel was ineffective for failing to object to
and argue against the admission of several "graphic, gruesome photographs that had little or no
evidentiary value and that were repeatedly shown to the jurors." ECF No. 107 at 13. The
photographs were (1) twelve photographs of the deceased victim at the crime scene and on the
autopsy table, shown twenty seven times; (2) five photographs ofHonie's nude body covered
with blood; and (3) two photographs of Claudia's grandchildren, who were present at the time of
the offense, with blood on them, shown thirteen times. Honie asserts that the admission of this
evidence during his trial was so prejudicial that it resulted in an unfair trial and violated the due
process rights afforded to him by the United States Constitution. In support of this assertion, he
cites Strickland v. Washington, 466 U.S. 668 (1984), and Payne v. Tennessee, 501 U.S. 808, 825
(1991) ("In the event that evidence is introduced that is so unduly prejudicial that it renders the
trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a
10
mechanism for relief.") Honie argues that the photographs were unduly prejudicial because of
their inflammatory nature and their redundancy to the testimony of law enforcement and the
medical examiner, and that they were needlessly cumulative. However, he cites no authority to
support his arguments for excluding them. He cites nothing for the proposition that photographs
of what Honie did are "unduly prejudicial," "needlessly cumulative," or fundamentally unfair.
The State argues that this claim has no potential merit, because Honie has not overcome
the strong presumption that trial counsel chose not to object to photographic evidence of what
Honie did. Trial counsel strategically chose to concede Honie's guilt from the outset of the trial
because Honie's guilt was beyond dispute. Counsel thus had no reason to object to photographs
of the crime at the guilt phase. The photographs could not inflame and prejudice the jury on
Honie's guilt because Honie did not contest it. Objecting to the photographs would in fact
contradict Honie's strategy to concede both the fact and the gravity of what he had done.
Honie has not demonstrated that the photos were entirely irrelevant. Honie argues that
because of the testimony that was presented to the jury, the photographs were unnecessary. A
number of police officers testified about what they observed at the scene. The medical examiner
testified about the condition of the victim's body and the cause of death, using six diagrams to
describe the nature and extent of her injuries. Several witnesses testified that the children were
present at the crime scene. Honie argues that the photographs added nothing of value to the
testimony of these witnesses. However, the State was not required to rely exclusively on
testimony to prove its case. The State could "prove its case by evidence of its own choice." Old
Chief v. United States, 519 U.S. 172, 187-88 (1997). Cf United States v. Gartman, 146 F.3d
1015, 1021 (D.C. Cir. 1998) ("Rule 403 does not provide a shield for defendants who engage in
outrageous acts, permitting only the crimes of Caspar Milquetoasts to be described fully to a
11
Jury. It does not generally require the government to sanitize the case, to deflate its witnesses'
testimony, or to tell its story in a monotone.") In presenting the photographs, the State merely
presented what Honie had done to Claudia and her family. Because Honie did not and could not
contest his guilt, trial counsel had no reason to object to evidence of it.
Honie argues that the photographs of him with blood on his body were in-elevant
primarily because the blood was his own, not the victim's. But the blood on his body
con-oborated his statements to police officers that he held Claudia's "butt" (she had a bloody
handprint on her buttock) and his "dick" when he began to sodomize her. TR ROA3 607:356-66,
371; TR ROA 608:476. The State's photograph of Dakota nude from the waist down was
relevant to prove aggravated sexual abuse of a child.
Honie asserts that the State's only possible purpose in repeatedly showing the
photographs was to shock the jury into deliberations driven by passion-fear, anger, disgustrather than on a rational weighing of the properly admissible evidence. ECF No. 107 at 15-16.
He says that the photographs would "blind" the jury "to any other evidence presented, and
guarantee the guilty verdict" that the jury "quickly returned." ECF No. 47 at 219. But the record
demonstrates that the jury was not blinded to the evidence, and that they actually did rationally
weigh the evidence. The jury acquitted Honie of the sexual-abuse-of-a-child aggravating
circumstance, showing that the jury did consider and weigh the evidence against the State's
burden of proof. TR ROA 518.
Honie bears the burden of proving that, in light of all the other evidence before the jury,
excluding the photographs would show a reasonable probability that the jury would have a
reasonable doubt about his guilt. Kimme/man v. Morrison, 477 U.S. 365, 375 and 389 (1986);
3
The court will cite to Honie's trial record, Utah Fifth Judicial District, Iron County case no. 981500662, as "TR
ROA," the Bates-stamped numbers, and the page numbers (for example TR ROA 580:431. A copy of this record is
filed with the clerk's office in conjunction with ECF No. 89.
12
Strickland, 466 U.S. at 694-96. Honie has not even attempted to meet that burden. Excluding
the photographs could not have avoided the guilty verdict that trial counsel conceded was
inevitable. The undisputable evidence clearly established Honie's guilt. See ECF No. 111 at 2526. The photographs did not tip the scale against Honie.
Honie argues that "the presentation of these photographs also prejudiced Mr. Honie with
the sentencing authority, the trial judge, who would not have seen these horrific and iTI'elevant
photographs over and over again had trial counsel fulfilled his obligation and objected to their
repeated display." ECF No. 119 at 18. However, the trial judge would have had access to the
photos at the bench throughout the trial in any event, and Honie has not demonstrated that the
judge was actually prejudiced by repeatedly being shown the photos. He simply states that he
was prejudiced.
The court finds that Honie's claim eight is not potentially meritorious, and therefore is
not entitled to a Rhines stay to return to state comi.
ii. Claim nine
Even if Honie could demonstrate good cause for his failure to exhaust claim nine, which
he has not done (see analysis above), he has failed to demonstrate that the claim is not plainly
meritless. Honie argues that the State presented inadmissible victim impact evidence, to which
trial counsel should have objected. In reaching this conclusion, he relies on State v. Carter, 888
P.2d 629, 652 (Utah 1994), where the Utah Supreme Court held that, under Utah state law,
victim impact evidence had "no probative force in the sentencing context." Honie concedes,
however, that at the time ofHonie's sentencing, the Utah Capital sentencing statute had been
amended to allow evidence on "the victim and the impact of the crime on the victim's family ...
." U.C.A. § 76-3-207(2)(a)(iii). Honie also concedes that the United States Supreme Court has
13
held that "[v]ictim impact evidence is simply another form or method of informing the
sentencing authority about the specific harm caused by the crime in question[.]" Payne v.
Tennessee, 501 U.S. 808, 825 (1991).
Also, the judge expressly recognized that both statute and case law prohibited comparing
the value of Claudia's life to anyone else's and made plain that he drew no such comparison in
reaching his decision. The court emphasized, "Each human life is of equal value. The murder of
any victim under the circumstances of this case, no matter what that victims [sic] status, would
have been just as painful, traumatic, and reprehensible, and would require the same punishment."
TRROA546.
Similarly, Honie has not proven prejudice. The sentencing judge expressly excluded the
improper comparison, and he still sentenced Honie to death. Honie cites no reason to disbelieve
him. The state post-conviction court already rejected Honie's ineffective assistance claim for
this reason. PCR 997-98. For all of the above reasons, the court finds that claim nine is not
potentially meritorious.
iii. Claim Eleven
On claim eleven, Honie argues that trial counsel did not adequately preserve most of the
arguments he later raised on appeal, and,that as a result, the standard for reversal was raised from
simple error to manifest, prejudicial error. ECF No. 47 at 236; ECF No. 107 at 33-34. Although
Honie argues that counsel failed to preserve all but one appellate claim, he specifically argues
about only one unpreserved claim: that the trial court improperly applied the sentencing factors
to sentence him to death. ECF No. 47 at 236.
Honie could prove prejudice only ifthe Utah court had refused relief because, although
Honie proved simple error on appeal, he did not prove that the simple error was "manifest."
14
That is not what the Utah Supreme Court did. It is true that the court said the manifest error
standard applied to Honie's challenge to the trial court's sentencing decision. Honie, 57 P.3d at
992. However, the court proceeded to reason that Honie failed to prove any en-or-a failure that
would have precluded relief even if trial counsel had preserved the appellate claim. Id. 991-95.
Honie has not argued, let alone proved, a reasonable probability that counsel could have
succeeded on a preserved eirnr, and nothing in the Utah court's analysis suggests that it denied
relief because it believed there was en-or, but that the en-or was not manifest.
Honie has not overcome the strong presumption of constitutionally competent
performance. The State makes a strong argument in its response to Honie's petition, that the trial
court properly applied the sentencing factors. ECF No. 70 at 167-183. Reasonable counsel
could elect not to object to a proper application of the sentencing statute.
On his appellate-ineffectiveness claim, Honie argues that counsel inadequately briefed
his challenge to the prosecutor's alleged racially-motivated charging decision. ECF 47 at 23841. Honie must show that absent any deficient representation, he would have had a reasonable
probability of succeeding on appeal, which he does not do.
The Utah Supreme Court already rejected the underlying claim that the prosecutor
charged based on Honie's race. Honie, 57 P.3d at 986. The court stated that "while the
prosecutor's racially related comments made during closing argument ... were clearly offensive
and distasteful, the charge of aggravated murder was supported and proved by the evidence,
regardless of defendant's race or ethnicity." Id. The court already considered the essence of
Honie's claim that the prosecutor charged based on race and that his closing argument shows it.
Stressing that already-apparent connection even more had no chance of changing the appellate
outcome.
15
Strickland requires affirmative proof of a reasonable likelihood of a different appellate
outcome. Honie has offered no proof to show that if appellate counsel had stressed the
connection between the prosecutor's closing argument and his alleged racist charging decision,
the appeal would likely have turned in Honie's favor. The Utah Supreme Court recognized the
alleged connection and still rejected Honie's claim.
IV. Conclusion
For the reasons stated above, the court denies Mr. Honie's motion to stay. ECF No. 107.
Honie has not demonstrated that any of the three unexhausted claims that are the subject of this
motion meet all of the Rhines requirements for a stay and abeyance
BY THE COURT:
Jl;il~~A. Robinson
ti~2'd States District Judge
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?