Honie v. Crowther

Filing 135

MEMORANDUM DECISION AND ORDER: For the reasons set forth in this Memorandum Decision and Order, the court hereby denies Mr. Honie's claims in his 121 Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. Section 225 4. The court also denies Mr. Honie a certificate of appealability. He now "may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22." U.S.C.S. Sec. 2254, Cases R. 11(a). Signed by Judge Julie A. Robinson on 6/12/19. (dla)

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.

Petitioner Taberon Dave Honie is in the custody of the Utah Department of
Corrections (“UDOC”), pursuant to a sentence of death for his 1999 conviction for the
aggravated murder of Claudia Benn. He filed this Amended Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 and the Local Rules for the United States District Court for the
District of Utah, challenging his conviction and death sentence as being in violation of his rights
under the United States Constitution. Mr. Honie submits that the State of Utah has violated and
arbitrarily refused to correct violations of his constitutional rights under the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution, thereby resulting in his
unconstitutional conviction and sentence of death. This court, for the reasons set forth below,
concludes that Honie has failed to make a substantial showing of a denial of a constitutional right
with regards to the claims in his Amended Petition.
I.

FACTUAL HISTORY

On July 9, 1998, Honie broke into Claudia Benn’s home and brutally murdered her. Prior to
the murder, Honie telephoned the victim’s daughter, Carol Pikyavit, at 8:00 p.m., asking her to

come and see him. Carol refused because she needed to go to work, so Honie became upset and
threatened to kill her mother and nieces. Honie telephoned twice more before Carol and her sister
left to go to work at 10:30 p.m., leaving Carol’s daughter and the sister’s two children with
Claudia. TR ROA 607:239-43, 258.1
Around 11:20 p.m., Rick Sweeney, a cab driver, picked up Honie. The driver could tell that
Honie was “really drunk,” but Honie was still able to give him directions to Claudia’s
neighborhood. TR ROA 607:267-69.
At approximately 12:20 a.m. several police officers responded to a 911 call from a neighbor
and arrived at the victim’s home. The officers noticed that the sliding glass door had been
broken, allowing entry into the home. The officers ordered the occupants of the house to exit,
and they discovered Honie leaving the home through the garage. TR ROA 607:288-92, 316-22.
An officer ordered Honie to put his hands up, and when he complied, the officer noticed that
his arms—from fingertips to elbows—had blood on them. The officer asked him about the blood,
and Honie replied, “I stabbed her. I killed her with a knife.” TR ROA 607:293, 304, 321. The
officer said he asked about the blood because he was concerned about Honie’s safety. He thought
Honie may have been cut on the glass from the broken door. He did not see a knife. And when
Honie said, “I stabbed her. I killed her with a knife,” the officer “didn’t know who” the “her”
was and did not know “what we had.” TR ROA 607:319-22.
After arresting Honie, the officers inspected the victim’s home. Inside, they discovered the
victim’s partially nude body lying face down on the living room floor. Officers observed a rock

1
A copy of Honie's trial record, Utah Fifth Judicial District, Iron County case no. 981500662, is filed with the
clerk's office in conjunction with ECF No. 89. The court will cite to the transcript of the proceedings as "TR ROA,"
the Bates-stamped numbers, and the page numbers (for example TR ROA 580:431). The Court will cite to any
pleadings as PL ROA, the volume number, and the page number (for example PL ROA IV:517).

2

on the living room floor and saw a large blood-stained butcher knife by Claudia’s body. TR
ROA 607:294, 299, 314.
Assistant Medical Examiner Maureen Frikke, M.D., did the autopsy. She identified knife
wounds that began under Claudia’s left ear and went all the way across her neck to her right ear.
She observed at least four start marks under the left ear that merged under the right “into this big,
huge, deep cut.” TR ROA 606:441. The wounds penetrated to the backbone, cutting everything
between; skin, fat, muscle, and organs. Claudia’s larynx had two, separate, horizontal cut marks.
Her esophagus was severed. The carotid arteries and jugular veins were sliced. TR ROA
606:440-42.
Dr. Frikke concluded that the neck wounds were caused by something linear with a sharp
edge and with enough strength and substance to cut through all the tissue, including the voice
box bones, and with enough rigidity to make three cuts in the back bone behind the voice box
and esophagus. TR ROA 608:442. Dr. Frikke also observed multiple blunt force injuries on
Claudia’s head and face, and a bite mark on her left forearm. TR ROA 608:445-49. Dr. Frikke
also detailed numerous stabbing and cutting wounds to Claudia’s lower body and genitals.
After his arrest, Honie was taken to the Iron County Jail where Officer Lynn Davis
interviewed and photographed him. Officer Davis interrogated Honie three separate times on the
morning following the murder. Honie expressed remorse for killing Claudia, stating repeatedly
that she was not meant to die.

II.

PROCEDURAL HISTORY

The State charged Honie with aggravated murder. TR ROA 597:59-60. Prior to trial, the
State offered to stipulate to the inadmissibility at trial of three statements that Honie made while

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he was in custody. TR ROA 598:7. Honie’s counsel, Stephen McCaughey, stated that he
intended to admit at least two of the statements to present a more accurate account of what
happened the night of the murder and to show evidence of Honie’s remorse. He moved to
suppress the statements, however, and asked for a ruling on their admissibility to create a record
that he was aware of the issue. TR ROA 598:6. The trial court held a hearing and denied the
motion to suppress.
Also, in Mr. McCaughey’s opening statement, he admitted, “I know in this case there is
no question of Mr. Honie’s guilt. You are going to find him guilty. The question in this case is
going to be one of punishment.” He admitted that Honie murdered Claudia during a burglary or
an aggravated burglary. McCaughey stated that Honie contested some of the aggravators, that the
State had the burden of proving those beyond a reasonable doubt, and that they would be
relevant to Honie’s penalty, which the judge would decide. TR ROA 607:233-34.
The jury convicted Honie of aggravated murder. PL ROA IV:517. Honie waived a
sentencing jury. At the penalty phase, the State relied on the circumstances of the crime; Honie’s
criminal history, primarily a prior violent assault on Carol; evidence of how the murder had
affected the granddaughters who were in Claudia’s home that night; and evidence of how
Claudia’s loss affected her community. TR ROA 605; 606.
Honie presented evidence about his family and personal background. He presented
evidence of counseling and attempts to curb his substance abuse, and of an attempted rape by
John Boone, a trusted male figure in Honie’s life who was later convicted of sexually abusing
more than 140 boys. Honie also presented extensive evidence from Nancy Cohn, a credentialed
psychologist with forensic training. Among other things, Dr. Cohn testified that Honie’s average
intelligence and the absence of brain damage meant he presented a low risk for future violence.

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She also testified that Honie’s violence coincided with intoxication, and that he would not have
access to liquor in prison. Id.
The trial court sentenced him to death. PL ROA IV:543-52, 556-57. The Utah Supreme
Court affirmed Honie’s conviction and death sentence. State v. Honie (Honie I), 57 P.3d 977
(Utah 2002), cert denied 537 U.S. 863 (2002).
Honie sought state post-conviction relief. He filed an amended petition in 2003. PCR 1992.2 The state district court granted the State’s 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 1266-1362. In 2011, the state district court
granted summary judgment in full and denied Honie post-conviction relief. PCR 3315-48. Honie
appealed that ruling. 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. Docket case no.
20120220-SC. The Utah Supreme Court consolidated both appeals, and on May 30, 2014, the
court affirmed. Honie v. State (Honie II), 342 P.3d 182 (Utah 2014).
Honie filed his petition for federal habeas relief on May 18, 2015. ECF No. 47. He raised
14 claims for relief. Id. Concurrent with the petition, Honie filed a motion to expand the record
with 32 exhibits not considered by the State court. ECF No. 48, ex. A-FF. Respondent opposed
both the petition and the motion. ECF No. 70 and 72. Honie later filed a second motion to

2

The court will cite to the record of Honie'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.

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expand the record with seven additional exhibits, which Respondent opposed. ECF No. 75, ex.
GG-LL; ECF No. 87.
After briefing on the petition and expansion motions concluded, this court denied without
prejudice Honie’s record-expansion motions. ECF No. 105. This court also ruled on the
procedural status of the claims in Honie’s petition, determining that only claims 1, 2, 3, 4, 5, 6, 7,
and 12 were exhausted in State court. ECF No. 103 at 1-2.
Honie next moved for a stay and abeyance under the procedure approved in Rhines v.
Weber, 544 U.S. 269 (2005), so that he could return to state court to exhaust claims 8, 9, and 11.
ECF No. 107. This court denied the Rhines motion, concluding that claims 8, 9, and 11 were not
potentially meritorious. ECF No. 120 at 1, 10-16. Honie then amended his petition, formally
withdrawing claims 8, 9, 10, 11, 13, and 14 and adding additional factual allegations and
argument to support his remaining claims. ECF No. 121.

III.

LEGAL FRAMEWORK

A. Standard of Review
This court has determined that claims 1, 2, 3, 4, 5, 6, 7, and 12 were denied on the merits
by the Utah Supreme Court and are thus exhausted. These claims are governed by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), which became effective on April 24,
1996. Under AEDPA, federal habeas relief on claims adjudicated on the merits may only be
granted if the State court’s decision “was contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme Court of the United States” or
“was based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). “Under the ‘contrary to’ clause, a federal

6

habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached
by [the United States Supreme Court] on a question of law or if the state court decides a case
differently than [the United States Supreme Court] has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle from [the United States Supreme
Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
at 413. “A federal habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.
The state court can therefore run afoul of either prong only if the Supreme Court has clearly
answered the question at issue. See Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam)
(“Because our cases give no clear answer to the question presented . . . ‘it cannot be said that the
state court “unreasonabl[y] appli[ed] clearly established Federal law.”’” (quoting Carey v.
Musladin, 549 U.S. 70, 77 (2006) (alteration in the original))).
In order to prevail on any of his claims, Honie must show that no fairminded jurist would
agree that the Utah courts correctly resolved the federal issue. See Harrington v. Richter, 562
U.S. 86, 102 (2011). Furthermore, the Supreme Court has noted that “even a strong case for
relief does not mean the state court’s contrary conclusion was unreasonable.” Id. at 101. The
standard is intentionally “difficult to meet” and “stops short of imposing a complete bar on
federal court relitigation of claims already rejected in state proceedings.” Id. at 102.

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IV.

ANALYSIS

FIRST CLAIM FOR RELIEF
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CONDUCT A REASONABLE
INVESTIGATION INTO A VIABLE TRIAL DEFENSE OF VOLUNTARY INTOXICATION
PRIOR TO CONCEDING HONIE’S GUILT TO AGGRAVATED MURDER
Honie asserts that trial counsel was ineffective for deciding to concede Honie’s guilt
early in the case, prior to investigating a viable defense of voluntary intoxication under Utah law,
and for failing to consult with Honie about his decision to proceed to trial on a concession-ofguilt theory. Honie argues that he was prejudiced because he had a viable defense of voluntary
intoxication under section 76-2-306 of the Utah Code that should have been presented at trial
because it could have negated the existence of the mental state necessary to be convicted of
aggravated murder.
A. Exhaustion
Honie raised this claim during his state post-conviction proceedings to the Fifth Judicial
District Court and to the Utah Supreme Court. PCR ROA 64-66, 724-726, 733-743, 766-771;
Opening Brief of Appellant, at 22-26, 45-50, Oct. 1, 2012. The Utah Supreme Court denied the
claim on the merits. Honie II, 342 P.3d at 195-97. This court found that this claim was exhausted
and properly before this court. ECF No. 103.
B. “Clearly established” rule of law
Once the court determines that the state court adjudicated the claim on its merits, the next
step under § 2254(d) is to decide whether the decision was based upon “clearly established
Federal law.” If it was not, habeas relief is foreclosed. Without clearly established federal law, as
determined by the United States Supreme Court, the habeas court need not even consider
whether the state court decision was “contrary to” or “involved an unreasonable application of”

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such law. Honie’s first claim for relief was based on clearly established federal law. See
Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the United States Supreme Court
squarely addressed what constitutes ineffective assistance of counsel. It was the law at the time
the Utah Supreme Court adjudicated Honie’s case on the merits.
Honie claimed in the state courts that his trial counsel overlooked a viable voluntary
intoxication defense. To succeed on his claim under Strickland, Honie had to prove that
counsel’s representation was both deficient and prejudicial. See id. at 687. In order to prove that
it was deficient, Honie had to overcome a “strong presumption that counsel’s conduct [fell]
within the wide range of reasonable professional assistance.” Id. at 689. He had to prove that
specific acts or omissions fell below an objective standard of reasonableness. Id. at 687-88, 690.
Furthermore, he had to meet that burden based on the practice standards in Utah at the time of
his trial and on the facts and law available to his trial counsel. Id. at 689 (explaining that courts
must evaluate counsel’s conduct from counsel’s perspective at the time). Finally, to prove
prejudice, Honie had to show “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694.
The Utah Supreme Court concluded that Honie did not meet that burden on the voluntary
intoxication defense. To get relief in this court, he must show that no fairminded jurist would
agree. See Harrington v. Richter, 562 U.S. 86, 101 (2011). The Supreme Court stated that “[t]he
standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two
apply in tandem, review is ‘doubly’ so.” Harrington, 562 U.S. at 105 (citations omitted). Further,
“[t]he Strickland standard is a general one, so the range of reasonable applications is substantial.”
Id. “Federal habeas courts must guard against the danger of equating unreasonableness under

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Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id. The court finds that the
Utah Supreme Court decision was based upon clearly established Federal law.
C. “Contrary to” clearly established Supreme Court precedent
The next step under § 2254(d) is to determine whether the state court’s adjudication of
the claim was “contrary to” the clearly established Supreme Court precedent, which in Honie’s
case it clearly was not. The Supreme Court has held that “a run-of-the-mill state-court decision
applying the correct legal rule from our cases to the facts of a prisoner’s case would not fit
comfortably within § 2254(d)(1)’s ‘contrary to’ clause.” Williams v. Taylor, 529 U.S. 362, 406
(2000). The state court decision on Honie’s first claim was precisely that, “a state-court decision
on a prisoner’s ineffective-assistance claim [that] correctly identifies Strickland as the
controlling legal authority and, applying that framework, rejects the prisoner’s claim.” See id.
Because the state court’s ruling on this claim does not fit within the “contrary to” clause, the
court will review it under the “unreasonable application” clause of § 2254(d)(1).
D. “Objectively unreasonable” application of Supreme Court precedent
This court may grant a writ of habeas corpus only if the state-court decision “involved an
“unreasonable application” of “clearly established Federal law, as determined by the Supreme
Court of the United States.” § 2254(d)(1). A decision may be incorrect or even clearly erroneous,
without being unreasonable. If fairminded jurists could disagree on whether the state court’s
decision was correct, the decision is not unreasonable. Harrington, 562 U.S. at 102. The Court in
Harrington stated:
If this standard is difficult to meet, that is because it was meant to be. It preserves
authority to issue the writ in cases where there is no possibility fairminded jurists

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could disagree that the state court's decision conflicts with this Court's precedents.
It goes no farther. Section 2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice systems, not a substitute
for ordinary error correction through appeal. As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that the state court's ruling
on the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Id. at 102–03.
The Tenth Circuit said it this way: “[u]nder the test, if all fairminded jurists would agree
the state court decision was incorrect, then it was unreasonable and the habeas corpus writ should
be granted. If, however, some fairminded jurists could possibly agree with the state court
decision, then it was not unreasonable and the writ should be denied.” Frost v. Pryor, 749 F.3d
1212, 1225 (10th Cir. 2014). The court notes that under § 2254(d), “the question is not whether
counsel’s actions were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105. Thus, for Honie
to get relief, he must show that no fairminded jurist would agree that the state court’s decision
was correct.
The state court held that to prevail on a voluntary intoxication defense, Honie would have
had to show that his state of intoxication deprived him of the capacity to form the mental state
necessary for aggravated murder. Honie II, 342 P.3d at 195. Under Utah law, “[v]oluntary
intoxication shall not be a defense to a criminal charge unless such intoxication negates the
existence of the mental state which is an element of the offense.” Utah Code Ann. § 76-2-306(1).
Thus, trial counsel would have had to produce “evidence showing that Mr. Honie was so
intoxicated that he neither intended to kill nor knew he was killing a person at the time of the
murder.” Honie II, 342 P.3d at 196, see Utah Code Ann. § 76-5-202 (stating that aggravated
murder is committed “if the actor intentionally or knowingly causes the death of another”).

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Honie argues that there was significant evidence of his level of intoxication at the time of
the crime and during his custodial interrogation that was readily available to trial counsel. Given
the amount of strong evidence that trial counsel had, Honie asserts that based on Strickland, trial
counsel had an obligation to investigate voluntary intoxication as a possible defense at trial
before deciding on a concession theory. See Strickland, 466 U.S. at 690-91.
The Utah Supreme Court held that Honie did not establish that trial counsel’s
performance was objectively unreasonable and affirmed the postconviction court’s grant of
summary judgment on this issue. Honie II, 342 P.3d at 195. The court discussed in detail all the
evidence that would have alerted counsel that Honie had been drinking when he committed the
murder. But the court then noted that evidence of intoxication is not enough:
Although this evidence may serve to establish that Mr. Honie had been drinking at
the time he committed the murder, Mr. Honie has not provided any evidence
showing that his “intoxication at the time of the offense prevented him from
understanding that his actions were causing the death of another.” Evidence of
intoxication, be it witness testimony or a numerical measure of the defendant's
actual blood alcohol content, is not sufficient to establish a voluntary intoxication
defense without actual evidence of the defendant's mental state. Thus, even
though Mr. Honie had consumed both alcohol and marijuana prior to committing
the murder, “there is no evidence [showing that] he was so intoxicated at the time
of the crime that he was unable to form the specific intent necessary to prove the
crime of [aggravated murder].”

Honie II, 342 P.3d at 196-97 (citation omitted).
The court noted that Honie had presented no evidence that he was so intoxicated that he
was unable to form the requisite intent for aggravated murder. In fact, the evidence suggested the
opposite. Id at 197. Before the police even knew that there was a stabbing victim, Honie told
officers that, “I stabbed her. I killed her with a knife.” Id. The court agreed with the
postconviction court that “this statement ‘clearly show[ed] that [Honie] understood he had
engaged in lethal conduct upon a human being.’” Id. Although at first Honie claimed that he had

12

blacked out during the murder, he eventually admitted to the defense team expert that he wished
he had blacked out so that he would not remember what he had done. Id. The state court found
this to be evidence that he was not so intoxicated that he did not know he was killing a human.
Id. Although the taxi driver, Mr. Sweeney, told police that Honie was intoxicated, he also
testified that Honie was able to give him directions to the victim’s neighborhood. Id. Honie also
responded to and obeyed officers’ commands at the scene. Id. Officer Davis testified that during
his first interview with Honie he could tell that he had been drinking, but that “it was clear that
he was fully aware of his situation. Moreover, the defendant’s physical appearance and actions
did not indicate that his mental state was out of the ordinary.” Id. Finally, Honie threatened to
kill the victim only hours before he killed her. Id. According to the state court, this threat showed
that “Mr. Honie not only had the capacity to form an intent to murder the victim, but that he in
fact acted on that intent.” Id.
The court found that all this evidence demonstrated that Honie had the ability to form the
necessary mens rea for trial counsel to reasonably conclude that a voluntary intoxication defense
was unwarranted. Id. The court emphasized that Honie had not pointed to any evidence that he
was so intoxicated that he was unable to form that intent. Id. Honie still has not proffered any
evidence that he did not know that he was killing a person. Without that evidence, he cannot
overcome the strong presumption that trial counsel properly ruled out a voluntary intoxication
defense.
Under Strickland’s deferential standard and its “strong presumption that counsel’s
conduct [fell] within the wide range of reasonable professional assistance” (Strickland, at 689),
Honie has not shown “beyond any possibility for fairminded disagreement” that trial counsel
were deficient when they omitted a voluntary intoxication defense or that the omission

13

undermines confidence in the outcome. Honie has failed to establish that the Utah Supreme
Court contradicted or unreasonably applied United States Supreme Court precedent in denying
this claim. Therefore, the first claim for relief is denied.

SECOND CLAIM FOR RELIEF
TRIAL COUNSEL WAS INEFFECTIVE FOR INTRODUCING HONIE’S INCULPATORY
STATEMENTS AT TRIAL DESPITE ACKNOWLEDGING THEY WERE INVOLUNTARILY
GIVEN, AND DESPITE THE STATE’S WILLINGNESS TO STIPULATE TO THEIR
INADMISSIBILITY
Honie asserts that trial counsel was ineffective for introducing at trial his custodial
statements, without first investigating the facts and circumstances of the crime, arrest and
custodial interrogation, and even though the state agreed to stipulate to their inadmissibility at
trial. TR ROA 598:7. The state, on the other hand, argues that trial counsel believed the
statements exhibited Honie’s remorse and that counsel made a legitimate strategic decision to
introduce them.
A. Exhaustion
Honie presented this claim during his post-conviction proceedings before the Fifth
Judicial District Court and the Utah Supreme Court. PCR ROA 66-68, 724-733; Opening Brief
of Appellant, 10/01/12, at 8-17, 50-56; Reply Brief of Appellant 05/16/13, at 11-20. The Utah
Supreme Court denied this claim on the merits. Honie, 342 P.3d at 198-99. This court found that
Claim Two was exhausted and properly before this court. ECF No. 103.
B. “Clearly established” rule of law
The Utah Supreme Court based its ruling on this claim on Strickland, noting that Honie
had not demonstrated “that counsel’s representation fell below an objective standard of
reasonableness.” Honie II, 342 P.3d at 195 (quoting Strickland, 466 U.S. at 687-88). The Utah

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Supreme Court reiterated Strickland’s command that “a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.” Honie
II, 342 P.3d at 195 (quoting Strickland, 466 U.S. at 687-88). As stated above, Strickland is
clearly established law.
C. “Objectively unreasonable” application of Supreme Court precedent
Honie argues that the state court’s denial of this claim constituted an “unreasonable
application of clearly-established federal law.” § 2254(d). He argues that before deciding to
introduce his statements, trial counsel should have accepted the state’s offer to stipulate to the
inadmissibility of his custodial statements and should have investigated the facts and
circumstances of the crime and his arrest (implying, without supporting evidence, that trial
counsel did not do so). Honie asserts that trial counsel’s performance was deficient and
prejudicial because it was only through trial counsel’s actions that jurors heard inflammatory and
prejudicial details about the crime, through Honie’s own statements, which would never have
come into evidence at trial but for trial counsel’s actions. The court finds Honie’s arguments
unpersuasive.
Trial counsel Mr. McCaughey made clear from the beginning that he intended to admit at
trial two of the three custodial statements in order to (1) present a more accurate account of what
happened the night of the murder and (2) provide evidence of Honie’s remorse. McCaughey
moved to suppress the statements, however, and asked for a ruling on their admissibility to create
a record that he was aware of the issue. TR ROA 598:6. He informed the court, “So I am sort of
doing this for the record, so the record’s clear that we are aware, that is, there may be some
Miranda violations in this case. And I want the record to reflect that we are pointing those out.”
Id. In response to trial counsel’s position, the state prosecutor stated:

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This is a capital case . . . [and] the state will concede if counsel feels that in the
best interest of his client, the accused, that these are statements that should be
suppressed[,] [t]he state does not want to overreach or push or anything that may
be on the edge of denying the defendant his fair day in court or violating his
constitutional rights. So I will concede to strike, omit, not use and not refer to the
three statements of Officer Davis in any of the proceedings if that’s the request of
the defendant.
Id. at 7. Trial counsel refused the prosecutor’s offer to stipulate to the inadmissibility of the
statements and reiterated that the only reason he was challenging the use of the statements at trial
was because “I don’t want two years down the road somebody coming back saying, hey, you
should have moved to suppress those statements, because there was no Miranda given.” Id. at
11.
The court held a hearing on the motion to suppress, denying it on the merits. Id. at 12.
The court ruled that Detective Davis properly advised Honie of his Miranda rights before taking
the first statement, and that Honie validly waived them. The court also found that under relevant
legal considerations, Davis was not required to re-advise Honie before the second and third
interviews. The court relied on Davis’s unopposed testimony that Honie appeared to understand
what was going on and concluded that his intoxication did not invalidate either his statements or
the waiver of his rights. Honie argues that he was too intoxicated to voluntarily confess. But his
intoxication would have made his statements involuntary only if Davis exploited Honie’s
intoxication to extract his statements. The trial court credited Davis’s testimony that he did not
do so. The court denied the motion to suppress, and counsel introduced the statements during
trial.
The Utah Supreme Court reiterated that under Strickland, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” 466 U.S. at 688. In addition, the court noted that, “strategic choices made after

16

thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Id. at 690. The court cited Ayala v. Hatch, 530 Fed. Appx. 697 (10th Cir.
2013); Gardiner v. Ozmint, 511 F.3d 420 (4th Cir. 2007); and United States v. Fulks, 683 F.3d
512 (4th Cir. 2012), and held that trial counsel’s strategic choice to admit a defendant’s
inculpatory statements may be reasonable if it furthers the defendant’s interests. See Honie, 342
P.3d at 198-199. In holding that trial counsel’s decision was not objectively unreasonable, the
court stated the following:
Like the defense counsel in Fulks, Mr. Honie’s trial counsel was dealt a similarly
“unpalatable hand.” As we have discussed, Mr. Honie’s trial counsel was
presented with a client who was clearly guilty of committing a heinous crime.
Here, trial counsel adopted a mitigation strategy, attempting to highlight Mr.
Honie’s feelings of remorse through the admission of statements Mr. Honie made
to police. In addition, unlike trial counsel in Gardner, Mr. Honie’s trial counsel
not only had a specific strategic purpose for admitting these statements, but
counsel also used them to further his client’s interest by attempting to present
mitigating evidence for both the judge and jury to consider.
Honie II, 342 P.3d at 199. Honie has not shown that no fairminded jurist would agree that the
Utah courts correctly resolved this issue. Nor has he overcome the double deference owed to trial
counsel’s decision to admit the statements.
Honie repeatedly asserts that trial counsel decided to concede guilt and introduce his
client’s inculpatory statements at trial without reviewing the discovery or conducting the
necessary investigation required of reasonable counsel. However, he cites no record evidence in
support of this assertion. He presents no evidence about what investigation trial counsel did or
when, or why trial counsel made the strategic decisions that they did. Honie argues that trial
counsel could have called witnesses to testify that he was extremely intoxicated. He does not
show, however, that their testimony would have refuted the arresting officer’s testimony that
Honie appeared responsive at the scene and able to follow his directions, which, in his

17

experience, intoxicated persons usually cannot do. Nor has he shown that the testimony of these
witnesses would have refuted Davis’s testimony that Honie appeared aware of the situation, and
that his mental state did not appear to be out of the ordinary. Thus, Honie cannot show that all
fairminded jurists would have found the investigation deficient.
Honie also argues that he was prejudiced because his statements to Davis presented
damaging evidence at the guilt phase. ECF No. 47 at 107-108. To prove prejudice, Honie would
have to show that absent his statements, there would have been a reasonable probability that the
jury would have had a reasonable doubt about his guilt. See Strickland, 466 U.S. at 695. And he
would have to meet that burden in the context of “the totality of the evidence before the . . .
jury.” Id. Honie has not met that burden. Overwhelming evidence of Honie’s guilt independent
of any admissions to Davis ensured his conviction for aggravated murder. See ECF No. 70 at 6970. Even without Honie’s admissions, it was undisputed and indisputable that, at a minimum,
Honie killed Claudia (1) after breaking into her home, and (2) while committing object rape.
Excluding his statements to Davis could not have made a better guilt-phase result reasonably
probable.3
Honie also argues that there was no purpose for the jury in the merits phase to hear
Honie’s admissions to Davis, which were “highly prejudicial evidence,” when that jury would
not be deciding the penalty. ECF No. 121 at 116. He argues that the jurors at the merit phase
were only determining guilt or innocence, not considering mitigation, and therefore, they could
not consider evidence of remorse. Honie argues that because the jurors could not consider

3

Honie argues again that counsel should have challenged his statement at the scene that he stabbed her and killed
her with a knife. However, that argument is not exhausted, because he never made it to the state courts—he never
claimed that counsel should have challenged that statement. Also, trial counsel could have reasonably concluded that
the trial court would find that the officer was not interrogating Honie when he asked where he got the blood. The
officer testified at trial that he asked about the blood because he was concerned about Honie’s safety.

18

evidence of remorse at this stage of the trial, the statements only provided proof that he
committed the murder and furthered the State’s allegations of aggravating circumstances.
Once again, Honie has not overcome the double deference owed to trial counsel’s
decision to admit the custodial statements. Counsel used the three statements, along with Honie’s
later full admission to the defense mental health expert to support a mitigation theme—Honie’s
progression to full disclosure showed his remorse for the murder. Because the evidence of
Honie’s guilt was overwhelming, trial counsel legitimately chose to focus on penalty mitigation.
See Florida v. Nixon, 543 U.S. 175, 190-91 (2004) (“[T]he gravity of the potential sentence in a
capital trial and the proceeding’s two-phase structure vitally affect counsel’s strategic calculus. . .
In such cases, ‘avoiding execution [may be] the best and only realistic result possible.’”).
Honie attempts to distinguish Nixon by arguing that the Court did not address whether
such a decision could be strategic when the jury that hears the mitigation evidence does not
decide the sentence during the penalty phase. The court finds this distinction irrelevant in this
case. The evidence of Honie’s guilt was overwhelming for several reasons. He admitted at the
scene that he killed Claudia; he was the only surviving adult at the murder scene; his arms were
covered in blood; and Claudia’s young grandchildren were the only other persons present. The
evidence of Honie’s guilt is strengthened by the fact that he has never even suggested that
someone else committed the murder. Finally, because the sentencer for whom the evidence of
remorse would be relevant—the judge—was also present for Davis’s guilt-phase testimony,
counsel had no reason to wait to begin developing the mitigation case until the penalty phase.
Thus, trial counsel was justified in conceding Honie’s guilt and admitting the statements in order
to develop the mitigation remorse theme.

19

Honie has not met his burden of showing that all fairminded jurists would have decided
this case contrary to the way the Utah Supreme Court did. The state court’s denial of this claim
did not constitute an unreasonable application of clearly-established federal law. Therefore, the
second claim for relief is denied.

THIRD CLAIM FOR RELIEF
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PROPERLY ADVISE HONIE OF
HIS RIGHT TO HAVE A JURY DETERMINE HIS PENALTY, RESULTING IN A JURY
WAIVER THAT WAS NOT KNOWINGLY AND VOLUNTARILY GIVEN
In Utah, capital defendants have a statutory right to jury sentencing, which a defendant
may waive with approval of the court and consent of the prosecution. Utah Code Ann.
§ 76-3-207(1)(b). At a pre-trial scheduling conference held approximately two weeks before
trial, counsel informed the court that he anticipated waiving the jury in the penalty phase to
“eliminate the need to death qualify this jury” and so that the evidence would only have to be put
on once, thereby simplifying the process. TR ROA 602:3-4. Trial counsel described it as “short
circuit[ing] things quite a bit, especially the death qualification of the jury.” Id. at 4. After
discussing the relatively new statute with the trial court, trial counsel explained that the court’s
decision to accept the waiver was determined by whether the waiver is knowingly and
intentionally made. Id. Trial counsel informed the court that he had discussed the waiver with
Honie who agreed to it and that the State had provided the necessary statutory consent. Id. at 4-5.
The prosecutor then asked for assurances that the court would consider imposing the death
penalty. The judge noted that imposing the death penalty was “the last thing a judge would want
to do,” but said that he would impose the death penalty if, after listening to the aggravating and
mitigating factors, he felt it was appropriate and the facts and circumstances of the case

20

warranted it. Id. at 7-8. When asked by the trial judge whether the number of witnesses would be
the same with either a judge or a jury determining sentence, trial counsel noted that he would call
fewer witnesses during the penalty phase if the judge, rather than a jury, were to consider
sentencing. Id. at 9. The judge responded, “That’s not a factor in my decision.”
The prosecutor noted that time was not an issue with him either. He said that in a case of
this magnitude, he wanted to give the defendant the benefit of the doubt on every request. He
said, “If the defendant wants it, and the state can, within the bounds of ethical and moral and
legal restraints do it, then I want to do it. If this defendant wants to waive a jury, I want to give
him that opportunity and err on the said [sic] of caution to the defendant. . . . I don’t want to
make him face a jury in the penalty phase if he doesn’t want to.” Id. at 9-10. In response, trial
counsel said, “[t]he other thing, the time factor with us, that doesn’t really enter into it. . . . the
decision was made for other reasons than that.” Id. at 10. Trial counsel then requested more time
to review the waiver with Honie before the colloquy with the judge. Id. at 10–11.
Honie signed a written “Waiver of Jury in Penalty Phase.” Id. at 11; TR424. The waiver
form stated that pursuant to § 76-3-207, Honie “knowingly and intelligently waives his right to
have a jury determine the sentence, in the above-entitled case, in the event the Defendant is
found guilty of Aggravated Murder in the guilt phase of the proceedings.” TR424. The waiver
further stated that Honie had discussed the waiver with trial counsel; had “been advised of the
full scope of options and ramifications” of waiving a sentencing jury and allowing the judge to
determine the penalty; had specifically waived “the right to have a jury of twelve persons
determine the penalty”; understood that “it would only take one (1) juror to dissent or vote
against imposing the death penalty, and that ten (10) jurors are sufficient to impose a sentence of
life without the possibility of parole.” Id.

21

In court, trial counsel reviewed the jury waiver form that Honie had signed. TR603:11.
Honie affirmed that he had read the waiver, executed it, talked to his counsel about it, told his
counsel that he had no questions about it, and understood its consequences. Trial counsel asked
Honie if he had read and understood the waiver, and whether he understood that he was giving
up his right to have a jury of twelve people decide the penalty phase of his case if he was
convicted. Honie was also asked whether trial counsel had explained to him the ramifications of
the twelve- person jury: if one person dissents, the death penalty will not be imposed; if ten
people can agree, then life in prison without parole will be imposed; and if fewer than ten people
agree, life imprisonment with the possibility of parole will be imposed. Id. at 11–12. Honie
answered affirmatively and confirmed that he was voluntarily waiving his right to have a jury
decide the penalty. Id. at 12. Honie confirmed that no one coerced or forced him to waive his
right; that he was not under the effects of alcohol or drugs; that he had no questions for counsel
or the trial court; that there was no doubt in his mind this was what he wanted to do; and that his
decision was based on counsel’s advice but was his decision alone. Id. at 13.
The trial court then followed up with this exchange with Honie:
THE COURT: And then, do you understand that to not receive the
death penalty you would have to have—I don’t know quite how to
put this in layman’s terms and still be accurate legally—but with a
judge, there is just one person you would have to convince. There
is a reasonable doubt with 12 jurors, you got 12 chances to
convince somebody that there is a reasonable doubt there. So do
you understand that you are reducing your field there for 12 down
to one?
THE DEFENDANT: Yes.
THE COURT: I don’t want to insult your intelligence, but do you
understand that?
THE DEFENDANT: Yes, I do.

22

THE COURT: And you still want to go ahead with the waiver of
the jury for the penalty phase?
THE DEFENDANT: Yes, sir.
Id. at 14.
In state post-conviction review, Honie submitted an affidavit in which he attested (1) he
did not understand the term “mitigation,” “what aggravators and mitigators were,” or what the
process would be; (2) trial counsel and the defense investigator told him it would be a good thing
to waive the jury because “the judge was young and likely to go for a life without parole
sentence”; (3) counsel told him “it would have to be [his] decision to waive the jury”; (4) no one
told him the jury’s role at sentencing “and what was necessary for a death sentence”; (5) after
waiving the jury, a “jailhouse lawyer” told him that he had made a mistake, and that he only
needed one holdout juror to get a life sentence; and (6) about one week after getting the
“jailhouse lawyer’s input,” he asked trial counsel to withdraw the waiver, but trial counsel told
him it was too late. PRC811–12. Honie concluded, “[i]f I had understood the differences
between a judge determination and a jury determination, I would have gone with the jury in the
penalty phase and not waived the jury.” Id. 811–12.4
Honie argues that trial counsel was ineffective for failing to properly and adequately
advise Honie of his right to have a jury determine his sentence, and for failing to move to
withdraw his jury waiver upon the request of Honie prior to trial. Honie argues he was
prejudiced by trial counsel’s actions, because but for trial counsel’s deficient performance, he
would have withdrawn his jury waiver and had his sentence decided by a jury of twelve peers,
rather than one judge.

4
Mr. Honie later said that the court’s misstatement led him to believe that he could more easily convince the judge
than twelve jurors. This statement was not included in Honie’s post-conviction affidavit.

23

A. Exhaustion
Honie presented this claim during his post-conviction proceedings to the Fifth Judicial
District Court and the Utah Supreme Court. PCR ROA at 68, 752-766; Opening Brief of
Appellant, 10/01/12 at 17-22, 67-75. The Utah Supreme Court denied the claim on the merits.
Honie, 342 P.3d at 200-02. This court found that this claim was exhausted and is now properly
before the court. ECF No. 103.
B. “Clearly established” rule of law
The Utah Supreme Court based its decision on Strickland, holding that “trial counsel’s
advice to waive a jury at sentencing was not objectively unreasonable under the first prong of
Strickland,” and that even if it did constitute deficient performance, “Mr. Honie was not
prejudiced under the second prong of Strickland.” Honie II, 342 P.3d at 200. As described
above, Strickland is clearly established Federal law.
Honie also relies on Adams v. United States ex rel. McCann, 317 U.S. 269, 272-73
(1942), for the proposition that a defendant may waive the right to a jury trial when “there is an
intelligent, competent, self-protecting waiver” and an “exercise of a free and intelligent choice.”
McCann is a Supreme Court decision that was the law at the time of the state-court adjudication
on the merits and that squarely addresses the issue of what is required for a defendant to waive
his right to a jury trial. It is clearly established Federal law.
C. “Objectively unreasonable” application of Supreme Court precedent
As discussed in Claim One, above, this court may grant a writ of habeas corpus only if
the state-court decision involved an “unreasonable application” of “clearly established Federal
law.” § 2254(d)(1). A decision which is incorrect or even clearly erroneous, may not necessarily
be unreasonable. Lockyer v. Andrade, 538 U.S. 63, 71 (2003). A state court’s decision is not an

24

unreasonable one if fairminded jurists could disagree about whether it was decided correctly.
Harrington, 562 U.S. at 101. The Supreme Court has stated that the standard is intentionally
difficult to meet, preserving the authority to issue the writ only in cases where every fairminded
jurist would agree that the state court decision was incorrect. Id. at 102. The fairminded jurist
standard is extremely deferential, requiring Honie to show that the Utah court’s decision
amounted to an “extreme malfunction[ ] in the state criminal justice system” that is “well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id at 102-03. The Tenth Circuit described the standard as follows: “Under the
test, if all fairminded jurists would agree the state court decision was incorrect, then it was
unreasonable and the habeas corpus writ should be granted. If, however, some fairminded jurists
could possibly agree with the state court decision, then it was not unreasonable and the writ
should be denied.” Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014).
The State of Utah provides a right to jury sentencing in its capital murder sentencing
statute, Utah Code Ann. § 76-3-207(1)(c) and (5), and thus any waiver of this right must comport
with the demands of Fourteenth Amendment Due Process and Equal Protection. See Evitts v.
Lucey, 469 U.S. 387, 393 (1985). In the recent Hurst case, the United States Supreme Court held
that a capital defendant has a constitutional right to be sentenced by a jury. Hurst v. Florida, 136
S. Ct. 616, 624 (2015). And because this case deals with capital sentencing procedure, the
Eighth Amendment requirement for reliability in capital cases is also implicated. The Supreme
Court, in Gregg v. Georgia, 428 U.S. 153, 187 (1976), noted that “[t]here is no question that
death as a punishment is unique in its severity and irrevocability.” Thus, “[w]hen a defendant’s
life is at stake, the Court has been particularly sensitive to insure that every safeguard is
observed.” Id. The Supreme Court has also found that other constitutional rights are implicated

25

during the sentencing phase of a capital trial given its trial-like nature, providing capital
defendants with greater protections during capital sentencing than in ordinary sentencing
proceedings. See Strickland, 466 U.S. at 686-87 (finding that because a capital sentencing
proceeding is more like a trial than an ordinary sentencing proceeding, the Sixth Amendment
right to the effective assistance of counsel exists during capital sentencing proceedings).
In Honie’s case, the state court held that trial counsel’s advice to waive a jury at
sentencing was not objectively unreasonable under the first prong of Strickland, that Honie’s
waiver was knowing and voluntary, and even if trial counsel’s failure to move to withdraw
Honie’s waiver was deficient performance, Honie was not prejudiced under the second prong of
Strickland.
1. Strickland Performance Prong
The state court began its analysis with a strong presumption that trial counsel acted
competently. Under Strickland, “a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at 689. When
assessing whether a petitioner has demonstrated that his attorney’s representation was
constitutionally deficient, the court looks to “the facts of the particular case, viewed as of the
time of counsel’s conduct.” Id. at 690. In order to overcome that presumption, Honie must show
that trial counsel’s “representation fell below an objective standard of reasonableness” under
“prevailing professional norms.” Id. at 688.
a. Advice to Waive Jury Sentencing
First, the state court reasoned why trial counsel’s advice to waive the sentencing jury was
objectively reasonable. The state court acknowledged that “[i]f counsel had a reasonable basis
for advising a client to waive a jury at sentencing, we will not second guess that strategic

26

decision.” Honie II, 342 P.3d at 200 (citing Wiggins v. Smith, 539 U.S. 510, 523 (2003)). The
state court relied on Taylor v. Warden, 905 P.2d 277, 284 (Utah 1995), where the Utah Supreme
Court held that counsel may reasonably presume that a trial judge “will apply the law justly and
make an impartial decision in both the guilt and penalty phases of a capital trial,”and “will
disregard any personal beliefs and discharge his or her duty to apply the law,” Honie II, 342 P.3d
at 200 (citing Taylor v. Warden, 905 P.2d 277, 284 (Utah 1995)). The state court continued,
noting that “[i]ndeed, absent any specific allegations of personal bias, we cannot conceive of any
situation in which choosing a judge over a jury would not constitute a legitimate tactical
decision.” Id. Citing Taylor, the state court held that given “the overwhelming evidence of Mr.
Honie’s guilt and the gruesome nature of the crime,” and the judge’s statement that imposing a
death sentence was “the last thing a judge would want to do,” it “was not unreasonable for trial
counsel to conclude . . . that Mr. Honie would fare better with a judge rather than with a jury.”
Honie II, 342 P.3d at 201. The state court further noted that at the scheduling conference in
which Honie waived his right to a jury, the trial judge “acknowledged that, although he was not
philosophically opposed to the death penalty, he would only impose it if the facts and
circumstances of the case warranted it.” Id.
A defense counsel’s decision to advise a defendant to waive his right to jury and proceed
with a non-jury trial is a “classic example of strategic trial judgment” for which Strickland
requires highly deferential judicial scrutiny. See Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th
Cir. 1995), overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n.1
(10th Cir. 2001)). Counsel’s advice to his client to waive a trial by jury “constitutes a conscious,
tactical choice between two viable alternatives.” Id. For counsel’s advice to rise to the level of
constitutional ineffectiveness, the decision to waive a jury must have been “completely

27

unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy.”
Id. The state court concluded that in this case, given the gruesome nature of the murder Honie
committed, as well as the trial judge’s statements on the record, trial counsel could have
reasonably believed that it was better strategy for Honie’s sentence to be tried by the judge rather
than a jury.
Honie argues that this is an unreasonable fact determination because while it is true that
such a motive would not be unreasonable, there is nothing in the record to indicate that this was
counsel’s actual reason for advising Honie to waive a jury at sentencing. “Strickland, however,
calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s
subjective state of mind.” Harrington, 562 U.S. at 110. Honie proffers no evidence that
counsel’s advice was objectively unreasonable. Honie points to trial counsel’s comments to the
state court that waiving the sentencing jury would streamline the trial. After both the court and
the prosecutor clearly expressed that saving time and shortening the trial were not a concern to
them, trial counsel told the trial court that the time required to death-qualify the jury did not enter
into the defense decision to waive the jury, and that “the decision was made for other reasons
than that.” TR ROA 602:10. Honie argues that trial counsel never indicated what those “other
reasons” might be and his statement at this time contradicted statements that he made before and
afterward, which indicate his reasons for the advice to waive a jury was that he wanted to shorten
the time it would take to try the case. But these comments referred to the effect of waiving the
jury, not the reason for the waiver; trial counsel’s comments were made in the context of a
scheduling hearing, where the judge wanted to discuss timing and security issues involving the
capital trial and jury selection. TR 602:4–6.

28

If trial counsel advised Honie to waive the jury for reasons that were not objectively
reasonable, Honie has not proffered what those reasons were. Without more, trial counsel’s
comments do not show that counsel’s advice bore “no relationship to a possible defense
strategy.” Hatch, 58 F.3d at 1459. Rather, without any evidence to the contrary, Honie has not
demonstrated that the state court decision contradicted or unreasonably applied clearly
established federal law. The state court’s analysis recognized and correctly applied Strickland’s
performance prong.
b. Knowing and Voluntary Waiver
Second, the state court rejected Honie’s argument that his waiver was not knowing and
voluntary. Honie argues that the jury waiver form that was executed and the colloquy that
occurred were inadequate to ensure that his waiver of jury sentencing was made knowingly,
intelligently, and voluntarily, in contravention of the Eighth and Fourteenth Amendments of the
United States Constitution. Specifically, Honie argued to the state court that he was not
informed that (1) he had the right to an impartial sentencing jury; (2) the jury would have to
weigh aggravating and mitigating factors; and (3) he was never properly instructed on what
aggravating and mitigating factors actually are. Honie II, 342 P.3d at 201. The state court
reasoned that Honie’s claim that he was not notified regarding his right to an impartial jury and
the use of aggravating and mitigating factors “is not relevant to his choice between a judge and a
jury in terms of sentencing” because either one “guaranteed the right to an impartial sentencer
who would weigh the aggravating and mitigating factors.” Id. The state court held the relevant
consideration in Honie’s decision to waive jury sentencing “was the difference between a single
judge and a twelve-person jury,” which was described to Honie during the scheduling hearing
where the trial court specifically asked whether “Honie understood that he was reducing his

29

chances of convincing a person to vote against the death penalty from ’12 [sic] down to one.” Id.
Thus, the state court held, “the relevant distinction between sentencing by a jury or a judge was
explained to Mr. Honie and he affirmed to the court that he understood the distinction and
wanted to proceed with the judge at sentencing.” Id.
The Supreme Court has emphasized the importance of a criminal defendant’s Sixth
Amendment right to a trial by jury and that this right may only be ceded by a knowing,
voluntary, and intelligent waiver. United States ex rel. McCann, 317 U.S. 269, 272–73 (1942).
The importance of this fundamental right is reflected in Federal Rules of Criminal Procedure 23,
which mandates that all waivers of jury trials be in writing, signed by both parties, and approved
by the court on the record. Utah Rules of Criminal Procedure 17 mandates felony cases be tried
by a jury unless the defendant waives a jury in open court with the approval of the court and the
consent of the prosecution. At issue in this case, Utah Code Ann. § 76-3-207(1)(c)(i) provides a
right to a jury sentencing in capital felony cases, which the defendant may waive with the
approval of the court and consent of the prosecution. “Under prevailing professional norms,
competent defense counsel is expected to ensure a criminal defendant receives the benefit of
those well-established [jury waiver] procedures.” Vickers v. Superintendent Graterford Sci, 858
F.3d 841, 851 (3d Cir. 2017).
This same standard for waiver of a jury at trial applies to capital sentencing proceedings,
given that capital sentencing proceedings are more like a trial than an ordinary sentencing
proceeding. See Strickland, 466 U.S. at 686 (Holding that while an ordinary sentencing “may
involve informal proceedings and standardless discretion in the sentencer,” a capital sentencing
proceeding “is sufficiently like a trial in its adversarial format and in the existence of standards
for decision, [internal citations omitted], that counsel’s role in the proceeding is comparable to

30

counsel’s role at trial.”) (citations omitted). Thus, because Honie had a state statutory right to be
sentenced by a jury in his capital murder case, it was incumbent upon trial counsel to ensure that
Honie was fully informed about his options and the consequences of waiving a jury.
Under the Utah capital sentencing scheme, consideration of guilt-phase aggravators is
permissible during the penalty phase. Utah Code Ann. § 76-5-202(1). Once a defendant has
been found guilty of a capital felony, the case then goes to a sentencing phase where the
aggravating circumstances found in the guilt phase may be considered. Utah Code Ann. § 76-3207(1), (3) (1995). The United States Supreme Court and the Utah Supreme Court have held
that the consideration of aggravating circumstances in both the guilt phase and the penalty phase
of a trial does not de facto shift the burden of proof to the defendant or render the sentencing
scheme unconstitutional. See Lowenfield v. Phelps, 484 U.S. 231, 246 (1988); Parsons v. Barnes,
871 P.2d 516, 528 (Utah 1994). Instead, “a defendant is simply given an opportunity to present
additional, less obvious mitigation evidence if he so chooses. The burden of proof is never
shifted to the defendant.” State v. Lafferty, 20 P.3d 342, 376 (Utah 2001). Before the death
penalty may be imposed, a jury (or judge) must determine beyond a reasonable doubt that (1) the
aggravating factors in their totality outweigh the mitigating factors in their totality, and (2) the
imposition of the death penalty is justified and appropriate under the circumstances. Id. at 376–
77. “Then, having weighed all the circumstances, the jury may choose to impose the death
penalty. Such a punishment is never mandated or imposed automatically, regardless of whether
evidence is offered in mitigation. The burden never shifts to the defendant.” Id. at 377.
The Court concludes the facts of this case show that Honie’s jury waiver was knowing
and voluntary, and thus the state-court decision was not contrary to or an unreasonable
application of clearly established Federal law. § 2254(d)(1). Honie argues that his federal

31

constitutional rights were violated when trial counsel failed to inform him (1) that he had a
statutory right to an impartial jury that would have to find that the totality of the aggravating
factors outweighed the mitigating factors beyond a reasonable doubt for the death penalty to be
considered; and (2) that the state carried the burden of proving that the death penalty was
appropriate. These arguments are without merit.
First, as the state court explained, Honie’s claim that he was not notified regarding his
right to an impartial jury and the use of aggravating and mitigating factors is not relevant to his
choice between a judge and jury in terms of sentencing, because regardless of whether he was
sentenced by a judge or jury, he was guaranteed the right to an impartial sentencer who would
weigh the aggravating and mitigating factors. Honie II, 342 P.3d at 201. Honie’s argument that
the state court failed to explain how Honie would know he was entitled to an unbiased jury
presupposes that a judge is not unbiased or is somehow held to a different standard of proof in
deciding what penalty to impose.
Second, the state court decision did not unconstitutionally shift the burden to Honie to
“convince” someone to vote against the death penalty. Honie affirmed both in writing and in
court that he understood the dissenting vote of only one of twelve jurors would foreclose a death
sentence. As the trial court explained, with twelve jurors, there were “12 chances to convince
somebody that there is reasonable doubt,” but with a judge he had “reduc[ed] his field” of
chances down from “12 to one.” TR 602:14. The state court found the trial court explained to
Honie the relevant distinction between sentencing by a jury or a judge. Honie II, 342 P.3d at 201.
While inartfully phrased, the trial court’s question to Honie whether he understood that he was
reducing his chances of convincing a person to vote against the death penalty from twelve down

32

to one did not shift the burden of proof to Honie or otherwise invalidate his waiver. Honie
understood that with a single judge, a split decision was not possible.5
In Adams v. United States ex rel. McCann, 317 U.S. 269, 275-78 (1942), the Supreme
Court held that a defendant may waive the right to a jury trial when “there is an intelligent,
competent, self-protecting waiver” and an “exercise of a free and intelligent choice.” The
Supreme Court has explained that a waiver is “knowing, intelligent, and sufficiently aware if the
defendant fully understands the nature of the right and how it would likely apply in general
circumstances—even though the defendant may not know the specific detailed consequences of
invoking it.” United States v. Ruis, 536 U.S. 622, 629–30 (2002). Even if a criminal defendant
“lack[s] a full and complete appreciation of all the consequences flowing from his [Sixth
Amendment] waiver, it does not defeat the State’s showing that the information provided to him
satisfied the constitutional minimum.” Patterson v. Illinois, 487 U.S. 285, 294 (1988) (citation
omitted).
Honie cites no Supreme Court precedent that a defendant must be specifically apprised of
his right to an impartial jury or of the burden of proof in order to knowingly and intelligently
waive his right to a jury for sentencing. None of the cases Honie cites describes a particular
colloquy necessary to validate a defendant’s waiver of a right to a sentencing jury. On the
contrary, the Tenth Circuit has explained that when insuring such waivers are knowing,
voluntary, and intelligent, courts should inform defendants that a jury is composed of twelve

5

Honie did not raise the burden of proof issue with the state court. Although Honie now argues before this
Court that the trial judge’s statement led him to believe it would be easier to convince the judge than the jury, Honie
did not attest that he believed that. Instead, he argued only the impartiality issue before the state court and attested
that “if I had understood the differences between a judge determination and a jury determination, I would have gone
with the jury in the penalty phase and not waived the jury.”

33

members of the community, defendant may take part in jury selection, jury verdicts must be
unanimous, and a waiver means the court alone decides guilt or innocence. United States v.
Robertson, 45 F.3d 1423, 1432 (10th Cir. 1995). Utah courts look to the totality of the
circumstances to determine whether a defendant validly waived his right to a jury trial; while a
court should advise a defendant of the implications of his waiver, it is “under no obligation to
provide an exhaustive explanation of all the consequences of a jury waiver.” State v. Hassan, 108
P.3d 695, 699 (Utah 2004). Therefore, Honie has not demonstrated that the state court decision is
contrary to or involves an unreasonable application of clearly established federal law.
2. Strickland Prejudice Prong
Honie argues that his constitutional rights were also violated when trial counsel failed to
withdraw the jury waiver once Honie genuinely understood—after talking to “a jailhouse
lawyer”—that “all [he] needed was one juror to hold out and [he] would get life without parole”
and he told trial counsel that he wanted to withdraw the waiver. The state court accepted
Honie’s assertion that he attempted to withdraw his jury waiver, and that his counsel refused to
act on his request, telling him it was too late even though the trial was still a week away. Honie
II, 342 P.3d at 201. The state court did not, however, decide whether this amounted to
ineffective assistance of counsel because it found that Honie was not prejudiced because he did
not establish “that the outcome of his sentencing would have been different had he opted for jury
sentencing.” Id. Honie argued in state court that he was prejudiced because, but for trial
counsel’s error, he would not have waived his right to a jury determination of sentence. PCR
811-812. Honie argues that the state court applied an incorrect prejudice standard in the context
of a waiver of a constitutional right to a sentencing jury. See Hill v. Lockhart, 474 U.S. 52, 59
(1985).

34

When assessing Strickland prejudice, the court asks “whether the petitioner has shown
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different,” with “a reasonable probability” meaning “a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Applying
Strickland, the state court held that in the context of Honie’s claim regarding failure to file a
motion to withdraw his jury waiver, Honie failed to satisfy the prejudice prong because he
“offered no evidence tending to establish that the outcome of his sentencing would have been
different had he opted for jury sentencing.” Honie II, 342 P.3d at 201.
Honie argues the state court misapplied the term “proceeding” to mean that he needed to
establish that he would have received a more favorable sentence had he been sentenced by a jury
instead of a judge, when instead, the correct inquiry under Hill v. Lockhart is whether the result
of the waiver proceeding, not the sentencing, would have been different. In Hill, the Supreme
Court addressed an ineffective assistance of counsel claim based on counsel’s failure to inform a
petitioner of the consequences of his guilty plea. Similar to Honie, the petitioner alleged that this
lack of information about the right he was relinquishing made his entire guilty plea “involuntary”
and “unintelligent.” 474 U.S. at 56. The Court concluded that the appropriate focus was on the
process that led to the petitioner forfeiting a constitutional right, and thus the “defendant must
show that there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Id. at 59. The Court focused on the
outcome of the guilty plea proceeding, rather than requiring the defendant to demonstrate that
but for counsel’s error, he would not have pleaded guilty and would have achieved a better result
at trial. Id.

35

Honie argues that the guilty plea context is an appropriate analog to the context of his
case because he had a statutory right to jury sentencing under Utah’s capital murder sentencing
statute, Utah Code Ann. § 76-3-207(1)(c) and (5), and thus any waiver of this right must comport
with the demands of Fourteenth Amendment Due Process and Equal Protection. See Evitts v.
Lucey, 469 U.S. 387, 393 (1985). Honie argues the relevant proceeding when considering an
ineffectiveness of counsel claim in the context of a jury sentencing waiver is the sentencing
waiver proceeding and not the trial itself; thus, the proper showing of prejudice need only
demonstrate that but for counsel’s deficient performance, he would have withdrawn his jury
waiver and had his sentence decided by a jury of twelve peers, rather than one judge.
Honie has not demonstrated that the state court contradicted or unreasonably applied
clearly established Supreme Court precedent. Hill was decided in the context of counsel’s
advice to plead guilty and addressed the appropriate way to frame Strickland prejudice when
counsel’s ineffective assistance caused a defendant to agree to conviction and forego a judicial
proceeding altogether. However, a guilty plea and a waiver of jury trial are not a set of facts that
are “materially indistinguishable.” Williams v. Taylor, 529 U.S. 362, 405 (2000). Hill does not
squarely address Honie’s situation, where, despite counsel’s assumed pre-trial ineffective
assistance, Honie did not agree to a sentence of death and forego a judicial proceeding altogether
but waived his right to be sentenced by a jury and instead had the judge determine his sentence.
Honie cites no cases extending the Hill prejudice analysis to jury waivers. Circuit courts
have applied the usual Strickland prejudice analysis in the context of jury waivers. See Correll v.
Thompson, 63 F.3d 1279, 1292 (4th Cir. 1995) (denying relief on petitioner’s claim that counsel
improperly advised him to waive a jury trial because “the evidence against Correll was
overwhelming, and we have no doubt that had the case been presented to a jury the same result

36

would have obtained.”); Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir. 1989) (holding petitioner
failed to establish prejudice from counsel’s advice to waive the jury when nothing in the record
established that, but for counsel’s errors, “a different factfinder (i.e. a jury) would have been
reasonably likely to arrive at a different outcome.”) (emphasis in original); Brown v. Pitcher, 19
F. App’x 154, 157–58 (6th Cir. 2001) (“[E]ven if it is assumed that counsel should have advised
[petitioner] to withdraw waiver of jury trial, [petitioner] has failed to demonstrate prejudice to
his defense, i.e., that the result of a jury trial would have been different.”).
Notably, the Third Circuit recently revised its prejudice test in the context of jury waiver.
In United States v. Lilly, 536 F.3d 190 (3d Cir. 2008), the court rejected the application of the
Hill prejudice standard to jury waiver. Applying Strickland, the court held that whether or not a
petitioner was prejudiced by ineffective counsel when deciding to waive the right to a jury trial is
determined by looking at whether “in the absence of counsel’s advice, another fact finder (i.e. a
jury) would have been reasonably likely to arrive at a different outcome.” Id. at 196. In Vickers
v. Superintendent Graterford SCI, 858 F.3d 841 (3d Cir. 2017), the court modified Lilly’s
prejudice test for ineffective assistance claims in jury waivers to whether defendant established a
reasonable probability that but for his counsel’s failure to ensure a proper waiver of his Sixth
Amendment right to be tried before a jury, he would have exercised that right. Id. at 857. The
court reasoned that after the Supreme Court’s decision in Lafler v. Cooper, 566 U.S. 156 (2012),
the process-based test of Hill is not limited to situations in which counsel’s ineffectiveness
prevented a judicial proceeding from occurring at all, but also applies when the defendant
ultimately received a fair adjudication, so long as counsel’s ineffectiveness affects not the
propriety of the proceeding itself, but “the fairness and regularity of the processes that preceded
it.” Vickers, 858 F.3d at 857 (quoting Lafler, 566 U.S. at 169). Lafler also addressed a guilty

37

plea, albeit an allegation that counsel’s deficient performance caused defendant to reject a plea
and go to trial. In Vickers, the Third Circuit held the Hill standard applies to any ineffective
assistance claim based on a pre-trial process that causes a defendant to forfeit a constitutional
right; the proper prejudice inquiry is whether the defendant can demonstrate a reasonable
probability that, but for counsel’s ineffectiveness, he would have opted to exercise that right. Id.
Of course, Vickers is not a holding of the Supreme Court that was the law at the time of
the state-court adjudication. There is no clearly established federal law extending the Hill
prejudice standard to jury trial waivers. See Williams v. Taylor, 529 U.S. 362, 412 (2000). Thus,
the state court did not unreasonably apply clearly established federal law when it applied the
usual ineffective assistance prejudice standard in accord with Strickland—whether the outcome
of Honie’s sentencing would have been different had he opted for jury sentencing. Strickland,
466 U.S. at 694. Honie clearly has not met his burden under that standard.
Even assuming that Honie articulates the correct prejudice standard, he cannot meet his
burden. Honie asserts that he need only demonstrate that if not for counsel’s deficient
performance, he would have withdrawn his jury waiver and proceeded with a jury during the
penalty phase of his trial. Under Hill, however, “[a] mere allegation that [a defendant] would
have insisted on a trial . . . is ultimately insufficient to entitle him to relief.” Miller v. Champion,
262 F.3d 1066, 1072 (10th Cir. 2001). Instead, in determining whether trial counsel’s
ineffectiveness was prejudicial, the court asks “whether going to trial would have been
objectively ‘rational under the circumstances.’” Heard v. Addison, 728 F.3d 1170, 1183 (10th
Cir. 2013) (quoting Padilla v. Kentucky, 599 U.S. 356, 372 (2010)). To determine rationality, the
court should assess “objective facts specific to a petitioner.” Id. The Tenth Circuit “remain[s]

38

suspicious of bald, post hoc and unsupported statements that a defendant would have changed his
plea absent counsel’s errors.” Id. at 1184.
Honie’s showing of prejudice falls short. Honie attested that he would not have waived a
sentencing jury if he had understood the difference between judge and jury sentencing. Honie
presents no argument in support of how he was actually prejudiced as a result of trial counsel’s
failure to move to withdraw his waiver; without more, Honie effectively asks the Court to
presume prejudice because trial counsel failed to move to withdraw. But as previously discussed,
the state court found that he did understand the difference. Moreover, the circumstances of
Honie’s crime weighed heavily in favor of imposing a death sentence. As the state court
recognized, “a defendant will often fare better with a trained jurist than a lay jury, especially
when the crime is particularly heinous.” Honie II, 342 P.3d at 201 (citing Taylor v. Warden, 905
P.2d 277, 284 (Utah 1995)). Honie does not allege the judge harbored any personal bias in this
case.
Finally, as previously discussed, a defendant has a constitutional right to a jury trial that
is waivable as long as the waiver is knowing and intelligent. Patton v. United States, 281 U.S.
276, 312 (1930), overruled on other grounds by Williams v. Florida, 399 U.S. 78, 90 (1970). The
Supreme Court has not addressed the issue of whether an accused who has knowingly waived a
jury trial must be permitted to withdraw the waiver. Courts that have addressed the issue have
held that withdrawal of a jury waiver is ordinarily within the discretion of the trial court and thus
the constitutionally guaranteed proceeding at issue is a defendant’s right to jury trial, not the
right to withdraw the waiver. See, e.g., Sinistaj v. Burt, 66 F.3d 804, 808 (6th Cir. 1995) (finding
no authority for the proposition that “when a state court abuses its discretion in denying a
defendant’s motion to withdraw a previously filed waiver of jury trial, the result is a violation of

39

the United States Constitution.”); Crosby v. Schwartz, 678 F.3d 784, 790–91 (9th Cir. 2012)
(“We reject [petitioner’s] argument that the state court’s conclusion as to the withdrawal of jury
waiver was contrary to or an unreasonable application of Supreme Court precedent.”). Similarly,
Honie does not cite any Supreme Court case that deals squarely with the issue in the context of
withdrawal of his waiver of right to jury sentencing. Honie’s waiver was knowing and voluntary,
and he has not addressed much less demonstrated whether the state court would have exercised
its discretion to grant any such motion to withdraw. Accordingly, Honie has failed to
demonstrate that he was prejudiced by counsel’s ineffectiveness under the standard articulated in
Hill. Honie has failed to establish that the Utah Supreme Court contradicted or unreasonably
applied United States Supreme Court precedent in denying this claim. The court therefore denies
the third claim for relief.
FOURTH CLAIM FOR RELIEF
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE EVIDENCE OF
AGGRAVATED SEXUAL ABUSE OF A CHILD, WHICH THE STATE INTENDED TO
INTRODUCE AS AN AGGRAVATING CIRCUMSTANCE IN SUPPORT OF THE DEATH
PENALTY, AND FOR INTRODUCING THIS EVIDENCE DURING THE PENALTY PHASE
DESPITE THE FACT THAT THE JURY DID NOT FIND IT AS AN AGGRAVATING
CIRCUMSTANCE DURING THE MERITS PHASE.

Honie argues that trial counsel was ineffective for allegedly failing to investigate
evidence that Honie sexually abused a minor at the scene of the crime, and for introducing, at
sentencing, Honie’s confession to the defense expert, Dr. Cohn, regarding the sexual abuse.
During the merits phase of the trial, the jurors did not find aggravated sexual abuse of a child as
an aggravating circumstance. During the penalty phase, however, the defense expert, Dr. Cohn,
testified that Honie had tearfully admitted to her that he digitally penetrated D.R. while he hid
from police. Trial counsel argued that the admission was evidence of Honie’s remorse. Honie

40

asserts that trial counsel was ineffective for introducing the confession without first investigating
claims that D.R.’s father, and not Honie, had molested her.
In a Child Abuse Neglect Report that was part of the Cedar City Police Department
homicide file, it was reported that Tom Vaughn, the on-call worker for the Department of Child
and Family Services, reported to the scene at the request of the Cedar City Police Department to
take custody of the three children who were present. PCR 3518; Cedar City Police Department
Records. According to the report:
In route to the Family Support Center, Dakota told this worker her daddy (name
unknown at the time of intake) does this to her: “my daddy does this to me,” she
then demonstrated with her hand the finger[.] We were discussing the circus then
[D.R.] out of the blue mentioned her daddy does the finger to her.
PCR 3518; Cedar City Police Department Records at 140. Honie argues that trial counsel
should have investigated this evidence that could have exculpated him as to the charge of
aggravated sexual abuse of a child.
A. Exhaustion
Honie presented this claim during his post-conviction proceedings before the Fifth
Judicial District Court. PCR 65, 743-747; Opening Brief of Appellant, 10/01/12, at 25-26, 56-67.
The Utah Supreme Court denied this claim on the merits. Honie II, 342 P.3d at 199-200. This
Court found this claim was exhausted and properly before this Court. ECF No. 103.
B. “Objectively unreasonable” application of Supreme Court precedent
The Utah Supreme Court concluded that Honie failed to demonstrate unreasonable
performance under Strickland concerning trial counsel’s decision to admit Honie’s confession to
Dr. Cohn. The court held that “trial counsel’s decision to admit potentially damaging statements
during trial in an attempt to demonstrate a defendant’s remorse is a legitimate trial strategy.”
Honie II, 342 P.3d at 199. The court noted that it would be especially unlikely to “question a

41

valid strategic choice . . . when the challenged statements are double-edged, containing both
inculpatory and exculpatory elements.” Id. Trial counsel’s decision to admit Honie’s confession
to Dr. Cohn was just such a legitimate trial strategy. Dr. Cohn testified that Honie expressed
remorse as he “began crying when he admitted to her that he had molested D.R.” Id. at 200. The
court held that “trial counsel’s actions were not objectively unreasonable.” Id. While the court
said that it did not need to reach the prejudice element, it observed that the sentencing court “was
prepared to find that Honie molested D.R., even without Mr. Honie’s confession,” and thus,
Honie “cannot demonstrate that, but for trial counsel’s decision to introduce his inculpatory
statements, the court would not have found that Mr. Honie molested D.R.” Id. at 200, n. 11.
Honie fails to establish that no “fairminded jurists” would agree that the Utah courts
incorrectly resolved this issue. See Harrington v. Richter, 562 U.S. 86, 102 (2011). He has not
even argued that there would be a reasonable probability of a more favorable sentencing outcome
without the sexual abuse aggravating circumstance. He has not refuted the Utah court’s
conclusion that the sentencing court “was prepared to find” independent of his admission that he
molested D.R. And he has not shown that no fairminded jurist would agree that trial counsel
made an objectively reasonable decision to present and rely on his admission as evidence of
remorse.
At the guilt phase, the state presented evidence in support of the sexual-abuse aggravating
circumstance. When Carol and Benita left for work, D.R. was wearing underwear and a t-shirt.
Carol testified that she had never seen D.R. without her underwear. D.R. did not complain to
Benita about her private parts, despite their relationship where D.R. would tell Benita if
something were wrong. TR ROA 607:238, 244-45, 257-58. After the murder, D.R. was no longer
wearing her underwear. At the family shelter, a worker gave D.R. new underpants. When the

42

worker removed them later, she observed fresh blood drops on the crotch. D.R talked about it the
next morning but did not identify who injured her. TR ROA 607:382-83.
D.R. was taken to Primary Children’s Medical Center and examined by a pediatric
emergency physician. He found abrasions on the area around D.R.’s hymen, which he described
as evidence of mild trauma, but sufficient to cause bleeding. He concluded that the abrasions
were consistent with “rubbing,” most commonly with a finger or penis. While he agreed that that
kind of injury could take twenty-four to seventy-two hours to heal, he testified that D.R.’s injury
was consistent with one inflicted less than twenty-four hours before the examination because the
abrasions were still oozing. TR ROA 607:390, 392-94, 396-99.
In its written decision, the trial court found that Honie sexually abused D.R. The court
noted that Benita left D.R. “clothed and healthy” at 10:30 p.m., and that D.R. was found “in her
injured condition” shortly after midnight. The court recognized that the only other persons in the
home were Claudia; two cousins, ages twenty-two months and three years; and Honie “who, just
a few hours earlier, had threatened to kill this very child and who murdered and sexually
assaulted” Claudia. The court, even without reference to Honie’s admission to Cohn, concluded
that it was “not plausible to believe anyone other than [Honie] injured the child.” In a single
sentence at the end of its analysis that D.R.’s injury could not have been accidental, the trial
court noted that Honie admitted to Cohn that he fondled D.R. TR ROA 549-548. Although Honie
has claimed that trial counsel was ineffective for eliciting Dr. Cohn’s testimony that he admitted
sexually abusing D.R., he has not claimed that he in fact did not sexually abuse her.
To get relief here, Honie must overcome the double deference standard under §2254(d).
To do so, he must show that (1) all fairminded jurists would agree that (2) he had overcome the
strong presumption of constitutionally compliant representation. Harrington, 562 U.S. at 105.

43

The defense theme of remorse as evidence of Honie’s capacity to change was objectively
reasonable. The defense team presented the admission in a way that supported that theme. Dr.
Cohn testified that Honie started to cry and stated, “[t]hat happened to me and I can’t believe I
did that. I don’t know why I did that. I can’t believe I did that.” TR 605:192-193.
Honie claims ineffective assistance of counsel because trial counsel failed to present
evidence of D.R.’s statement to the caseworker that her father may have sexually abused her. He
says that there is no evidence that counsel investigated the statement. Honie says that counsel
should have asked him whether he actually abused D.R. or actually admitted the abuse to Dr.
Cohn. He points to his 2011 proffer that he did not abuse D.R. and that Dr. Cohn pressured him
into admitting to the sexual abuse. ECF No. 47 at 126-37.
None of these overcome the double deference owed to trial counsel’s choices. Honie
supports his argument with a misstatement about D.R.’s accusation. He states that counsel was
ineffective for failing to investigate “when he knew that D.R. had made a statement to social
services staff that her father was the one who molested her.” ECF No. 121 at 146. This is not
what D.R. said. The report shows only that D.R. said that at some unspecified time her father did
something to her with his middle finger. As stated above, the examining physician believed the
injury he observed had been inflicted less than 24 hours earlier. There is no evidence in the
record to show that D.R.’s father had access to her in that period. The indisputable evidence
shows that Honie did.
Honie’s argument that his counsel should have questioned him about whether he actually
molested Dakota also fails to overcome the double deference standard. Counsel knew that Honie
admitted to the defense expert that he sexually abused D.R. Honie says that counsel should have
asked him whether that was true, but he does not explain why he did not tell counsel that it was

44

not true. In fact, Honie waited 11 years to challenge Dr. Cohn’s sworn testimony about his
tearful admission. Under Strickland, the reasonableness of counsel’s investigation “depends
critically” on the information that the client provides. 466 U.S. at 691. Honie has failed to
establish that the Utah Supreme Court contradicted or unreasonably applied United States
Supreme Court precedent in denying this claim. Therefore, the fourth claim for relief is denied.

FIFTH CLAIM FOR RELIEF
TRIAL COUNSEL
INVESTIGATION

FAILED

TO

CONDUCT

A

REASONABLE

MITIGATION

Honie asserts that trial counsel failed to conduct an adequate mitigation investigation by
(1) relinquishing this duty to people who were not qualified to perform and who did not perform
a reasonable mitigation investigation, and (2) by failing to follow up on red flags revealed during
the investigation that warranted further exploration.
A. Exhaustion
Honie presented this claim during his post-conviction proceedings before the Fifth
Judicial District Court and the Utah Supreme Court. PCR ROA 65-68, 766-784; Opening Brief
of Appellant, 10/01/12, at 76-91; Reply Brief of Appellant, 05/16/13, at 26-33. The Utah
Supreme Court denied this claim on the merits. Honie II, 342 P.3d at 192-95. This court found
this claim was exhausted and properly before the court. ECF No. 103.
B. Clearly Established Law
The Utah Supreme Court based its ruling on this claim on Strickland, noting that Honie
had not demonstrated “that counsel’s representation fell below an objective standard of
reasonableness.” Honie II, 342 P.3d at 195 (quoting Strickland, 466 U.S. at 687-88). The court
also reiterated that “a court must indulge a strong presumption that counsel’s conduct falls within

45

the wide range of reasonable professional assistance.” Honie II, 342 P.3d at 195 (quoting
Strickland, 466 U.S. at 689). Strickland is clearly established law.

C. Procedural History
The trial court sentenced Honie to death in a detailed ruling. PL ROA IV:552-543. The
court found as aggravating circumstances (1) that Honie murdered Claudia while engaged in
object rape, aggravated sexual assault based on the attempted forcible sodomy, and aggravated
burglary; (2) Honie’s criminal history, principally a previous attack on Claudia’s daughter,
Carol; (3) that Honie committed the murder while children were present; and (4) that Honie
committed aggravated sexual abuse of one of the children. PL ROA IV:551-546.
The court agreed that while Honie’s criminal history was not significant in number, it
was significant in nature. The court noted that the evidence indicated that Honie “suffered from
both alcohol abuse and depression.” PL ROA IV:545. The court recognized that Honie was
“somewhat intoxicated,” noting that it used the qualifier “somewhat” because there was no
breath test and because of conflicting witness testimony. The court stated, however, that Honie
was sufficiently sober to give the taxi driver directions, converse with police, and determine a
way to get into Claudia’s house. Importantly, Honie also eventually admitted that he
remembered the crime details. The court thus concluded that his intoxication did not prevent him
from appreciating that what he did was wrong or from conforming his conduct to the law. PL
ROA IV:545-544.
The court noted that although Honie was relatively young, none of the prior attempts at
counseling “had a discernible [e]ffect on” him. PL ROA IV:544. The court found as additional
mitigation that Honie was kind as a child, that he carried water and chopped wood for older

46

people, and that his family loved him. The court also found Honie’s remorse as a mitigating
factor. PL ROA IV:544.
The trial court discredited the allegation that John Boone attempted to rape Honie. The
court reasoned that (1) Boone kept a meticulous chart of his predatory crimes, but did not include
Honie among his victims; (2) Honie was the only person not on the chart who claimed Boone
had molested him; (3) only Honie alleged that Boone’s first and only attack was an attempted
anal intercourse—his other victims described Boone working his way up to sodomy; and (4)
Honie never mentioned the sodomy in his weekly counseling sessions. PL ROA IV:544-543.
The trial court found “beyond a reasonable doubt” that “the totality of aggravating
circumstances outweigh the totality of mitigating circumstances,” not in terms of their relative
numbers, “but in terms of the respective substantiality and persuasiveness.” TR ROA 606:86 The
court then found “beyond a reasonable doubt” that a death sentence was “justified and
appropriate under the circumstances.” Id.
During state post-conviction proceedings, Honie challenged trial counsel’s mitigation
investigation as being constitutionally inadequate. In support of this claim, he introduced the
affidavit of a post-conviction mitigation investigator, Bruce Whitman, who identified several
areas of the mitigation case that he felt were inadequate given Honie’s background, life history
and experiences. See ECF No. 121 at 156-159. The State moved to dismiss Honie’s Amended
Petition and moved for summary judgment on most of his claims, including his mitigation
claims. PCR ROA 212-217. The state district court denied the State’s motion as to Honie’s
claims involving ineffective assistance of counsel for failing to conduct an adequate mitigation
investigation. Because neither party submitted an affidavit from trial counsel, indicating the
scope of his investigation, the district court concluded that there was “little in the record” to

47

contradict Whitman’s assessment of trial counsel’s investigation. The court held that “Whitman’s
affidavit raise[d] a genuine issue with respect to whether trial counsel’s less-than-complete
investigation was reasonable and, therefore, whether he failed to comply with prevailing norms
of professional practice in conducting his mitigation workup.” PCR ROA 1037-1038.
The court then granted the State leave to do discovery. During discovery, the State asked
Honie to identify the witnesses he intended to call to provide evidence in support of his
outstanding claims and to detail the testimony each would give. See ECF No. 70 at 106-110 for
the list of witnesses and their testimony. The State proffered an affidavit from Honie’s lead trial
counsel, describing his qualifications, and the qualifications of and investigation done by Dr.
Cohn and Ted Cilwick. Based on that affidavit and Mr. Honie’s discovery responses, the State
moved for summary judgement on the outstanding penalty-phase ineffective-assistance claims.
Honie responded that he could not oppose the motion without additional funds. After extensive
litigation over funding, the state district court denied Honie’s request for more funds. The court
reasoned that Honie could not show that additional funds were likely to develop evidence that
would support post-conviction relief. This was so, according to the court, because trial counsel’s
uncontroverted affidavit showed that he reasonably relied on the advice of his mitigation expert.
Therefore, Honie could not, as a matter of law, prove deficient performance. Mr. Honie
responded to the summary judgment motion, and in June 2011 the district court granted
summary judgment and denied all relief. Honie timely appealed.
While the post-conviction appeal was pending, Honie moved to set aside the postconviction judgment, arguing that the district court’s funding decisions denied him the effective
assistance of post-conviction counsel. With the motion he proffered some of the additional
evidence he argued he could have proffered with the summary judgment opposition if the district

48

court had given him the money he requested. The district court denied 60(b) relief, concluding,
among other things, that Honie had not shown that the funding decisions prevented counsel from
developing the evidence because he had developed and proffered most of it with the 60(b)
motion even without additional state funds. The court also reasoned that the proffer was still not
enough to create a fact issue on either element of Honie’s penalty-phase ineffective-assistance
claims. ECF No. 70-2, Exhibit 2.
The Utah Supreme Court affirmed, holding that Honie had not proved deficient
performance. The court reasoned that trial counsel had hired a credentialed psychologist with
forensic training as a mental health and mitigation consultant and relied on her advice. She did a
thorough examination that included psychological testing and a review of Honie’s background.
The court also found that trial counsel properly relied on Honie and his family to provide
information about his personal life and mental state. Honie II, 342 P.3d at 192-95.
Honie has not shown that no fairminded jurists would agree. He only suggests additional
background witnesses trial counsel could have called and proffers a different mental health
diagnosis—frontal lobe dysfunction that limits his ability to control his conduct and contributes
to aggression. Honie bases his argument primarily on an evidentiary proffer he did not make to
the state courts.
The Utah courts rejected Honie’s challenge to trial counsel’s penalty-phase investigation
on the merits. Therefore, this court must restrict its review of that decision to the record before
the Utah courts. See Cullen v. Pinholster, 563 U.S. 170, 180-87 (“If a claim has been adjudicated
on the merits by a state court, a federal habeas petitioner must overcome the limitation of §
2254(d)(1) on the record that was before that state court.”). Thus, under Cullen, this court cannot
consider Honie’s proffer of new evidence. Furthermore, Honie has not explained how, on the

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record before the Utah courts, no fairminded jurist could agree that he failed to prove penaltyphase ineffective assistance. Thus, the court must deny the claim.
Honie seems to argue that the Cullen restriction does not apply because the state courts
denied him further funding to investigate the post-conviction case. ECF No. 47:145-50.
However, Cullen does not limit the record restriction to claims developed with funding. Rather,
by its plain language, Cullen’s record restriction applies so long as the state court adjudicated the
claim on its merits. Furthermore, even if state funding limits could avoid Cullen’s restriction,
Honie has not shown that the restrictions he actually faced justify disregarding Cullen. The Utah
courts only denied funding to develop evidence to prove Strickland prejudice because Honie had
not proven Strickland deficient performance.
Before 2008, funding for litigation costs in Utah death-penalty post-conviction cases had
an absolute cap of $20,000 set by administrative rule. Utah Code Ann. § 78-35a-202(2)(c) (West
2004); Utah Admin. Code r. 25-14-4, -5 (2007). Honie received the full $20,000. In 2008, the
Utah legislature amended the funding statute to provide funds for reasonable litigation costs. The
revision set a presumptive $20,000 limit but gave courts authority to exceed that amount on a
showing of “good cause.” Utah Code Ann. § 78B-9-202(c). To determine “good cause” courts
must consider two factors: (1) the extent to which a petitioner requests funds to duplicate work
done in the criminal case; and (2) the extent to which the funds will allow a petitioner to develop
evidence and legal arguments to support post-conviction relief. §78B-9-202(3)(a), (e).
After those amendments, Honie requested funds beyond $20,000 to develop penalty
phase evidence in addition to and different from the evidence trial counsel presented. The state
district court denied his funding requests after the State submitted trial counsel’s affidavit. The
court reasoned that considering the affidavit, Honie could not prove deficient performance. And

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if he could not prove one element of ineffective assistance, there was no reason to provide him
funds to develop evidence in support of the other.
The Utah post-conviction courts determined that trial counsel’s mitigation case was not
deficient as a matter of law. Honie II, 342 P.3d at 203. Therefore “an award of funds would have
been inappropriate.” Id. at 204 n. 13. Honie argues that he could not rebut trial counsel’s
affidavit “[w]ithout funding to develop his colorable [ineffective assistance] claims.” ECF No.
47 at 147. But in the three years between the time Utah allowed additional funds and when Honie
responded to the State’s second summary judgment motion, he never asked for funds to rebut the
affidavit. In all that time, he never asked for funds to develop any evidence about what his
defense team actually did and why. He only asked for funds to develop an alternative mitigation
case, not to develop evidence that no objectively reasonable attorney would have developed the
case his trial team did. Even now, he has proffered no evidence from lead trial counsel about the
decisions he made and why.
Honie has not overcome the double deference owed to trial counsel’s penalty-phase
representation. Trial counsel hired an experienced investigator and a psychologist with forensic
training, both of whom he had worked with previously. With their assistance, counsel developed
and presented a case that covered Honie’s personal history, his family history, his substance
abuse problems, and his mental health issues, both generally and specifically related to the crime.
They also presented evidence of his and his family’s good qualities.
Dr. Cohn also proffered evidence that Honie would not likely be violent in prison. She
relied on her conclusion that he did not have brain damage and that he was of average
intelligence, and then she said that in prison Honie could not get the only thing that made him
violent—alcohol. She testified that she could reliably predict that he would age out of his

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aggression. The Utah Supreme Court concluded that this was objectively reasonable, and Honie
has not shown that no reasonable jurist would agree.
Honie argues that because trial counsel admitted in his affidavit that he turned the
mitigation investigation over to Dr. Cohn and also relied on the investigation by Mr. Cilwick for
mitigation leads, his affidavit was insufficient to determine whether the mitigation investigation
was adequate or reasonable. Honie asserts that the State was also required to present affidavits
from Dr. Cohn and Mr. Cilwick before the state court could determine whether the investigation
was reasonable. But Honie does not explain why he waited so long to present those affidavits.
After the state district court granted judgment against him on his penalty-phase
ineffective-assistance claim, Honie moved to set the judgment aside. He supported it with a
proffer of some alternative penalty-phase evidence developed by his federal habeas counsel and
an affidavit from his trial investigator, Cilwick. But Honie never explained why he could proffer
that evidence only after the state district court entered judgment against him or why even then he
could proffer only part.
Honie moved to appoint federal habeas counsel three and a half years before he opposed
the second summary judgment motion in the state case. ECF No. 1. Honie represented that the
“immediate appointment of counsel” was “necessary to begin the investigation into Honie’s
case.” Id. 4. The court granted the motion the same day. ECF No. 3. It was three and a half years
after the “immediate appointment” of federal habeas counsel to investigate his case, and only
after the state court entered judgment against him, that he presented anything from that
investigation to oppose the State’s motion.
The court finds that Honie has not shown that, on the record before the state courts, no
reasonable jurist could agree with their disposition. And his arguments about funding are legally

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and factually insufficient to justify disregarding Cullen’s mandate restricting this court’s review
to the record before the state courts. For the above reasons, the court hereby denies claim five.

SIXTH CLAIM FOR RELIEF
THE TRIAL COURT’S FINDINGS OF FACT AND DETERMINATIONS OF LAW
REGARDING THE AGGRAVATING AND MITIGATING CIRCUMSTANCES DID NOT
COMPLY WITH DUE PROCESS OR THE NEED FOR AN INDIVIDUALIZED SENTENCING
PROCEDURE WHICH GIVES FULL EFFECT TO ALL OF THE EVIDENCE PRESENTED
AT TRIAL
Honie claims that the trial court failed to provide a proper, individualized sentence, and
that the Utah Supreme Court failed to correctly review the case according to the constitutional
standard identified by the United States Supreme Court. Honie argues that instead the Utah
Supreme Court simply reiterated the trial court’s findings.
A. Exhaustion
This claim was raised as Argument III in Honie’s direct appeal brief. Opening Brief of
Appellant, 04/11/00, at 91-138. The Utah Supreme Court considered Honie’s challenges to the
trial court’s sentence, both collectively and individually. It rejected some and held that others
were harmless regardless of whether they were correct. Honie I, 57 P.3d at 991-95.
B. “Clearly Established” Rule of Law
The state court relied on Tuilaepa v. California, where the Supreme Court held that as a
matter of federal constitutional law, aggravating factors must meet two requirements: “First, the
circumstance may not apply to every defendant convicted of a murder; it must apply only to a
subclass of defendants convicted of murder. Second, the aggravating circumstance may not be
unconstitutionally vague.”Honie I, 57 P.3d at 992 (quoting Tuilaepa v. California, 512 U.S. 967,
972 (1994)). The Utah court then stated that it would first determine whether the trial court had

53

weighed any improper factors, and if it had, then they would evaluate whether the error was
harmless, non-prejudicial error. Honie I, 57 P.3d at 992
The state court also relied on Zant v. Stephens, for the proposition that “a death sentence
supported by multiple aggravating circumstances need not always be set aside if one aggravating
factor is invalid.” Honie I, 57 P.3d at 994 (quoting Zant v. Stephens, 462 U.S. 862, 890 (1983)).
The state court noted that in applying Zant, it would “afford a measure of discretion to the
conclusion reached by the trial judge who weighs evidence received regarding aggravating and
mitigating factors presented during the penalty phase.” Honie I, 57 P.3d at 994.
C. “Objectively unreasonable” application of Supreme Court precedent
Honie argues that the Utah Supreme Court took the stance that if there was one
aggravating factor that was properly found, it would not review the other aggravating or
mitigating factors for error in application but would defer to the lower court’s determination of
the sentence. He also argued that the state court conducted no individualized review of the nonstatutory aggravating and mitigating factors, but simply reiterated the trial court’s findings. This
is not what the state court did. The court stated that if one of multiple aggravating factors were
constitutionally or statutorily improper to consider, the error would not undermine their
confidence in the trial court’s sentence. See Honie I, quoting Zant, 462 U.S. at 890 for the
proposition that a death sentence supported by multiple aggravating circumstances need not
always be set aside if one aggravating factor is invalid.).
The Utah Supreme Court considered Honie’s challenges to the trial court’s sentence, both
collectively and individually. It rejected some and held that others were harmless regardless of
whether they were correct. The trial court did what was required for an individualized
determination—it allowed and considered Honie’s mitigation evidence. See Tuilaepa v.

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California, 12 U.S. 967, 972 (1994) (holding that the right is satisfied if the sentencer “can
consider relevant mitigating evidence of the character and record of the defendant and the
circumstances of the crime”). The state court’s decision was not an unreasonable application of
Tuilaepa such that no reasonable jurist could agree with it.
Honie was particularly concerned about the language used in the trial court’s exclusion of
the prosecutor’s closing statement that Claudia was not a “drunken Indian in the park,” but rather
an asset to the Paiute community. ECF No. 121 at 226-27. After clarifying that it was excluding
the statement from its sentencing calculus, the court said, “The murder of any victim under the
circumstances of this case, no matter what the victims [sic] status, would have been just as
painful, traumatic, and reprehensible, and would require the same punishment.” TR ROA 546.
Honie says that this statement shows that the court was not treating him as a “uniquely individual
human being.” ECF No. 121 at 227. However, it is clear from the statement itself that the court
was saying that the victim’s social status, not Honie’s, was irrelevant to it sentencing calculus.
Honie has not shown that the Utah Supreme Court violated clear United States Supreme
Court precedent when rejecting his individualized sentencing claim. The trial court allowed
Honie to present his mitigation evidence, and the court considered the evidence. That was all that
was required for an individualized determination. See Tuilaepa, 12 U.S. at 972. The state court’s
decision on this claim was not an unreasonable application of Tuilaepa such that no reasonable
jurist could agree with it. Therefore, the Court denies the sixth claim.

SEVENTH CLAIM FOR RELIEF
HONIE’S DEATH SENTENCE WAS THE PRODUCT OF PROSECUTORIAL RACIAL
DISCRIMINATION

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Honie asserts that his death sentence violates the Equal Protection clause of the
Fourteenth Amendment because the prosecution’s pursuit of capital punishment was motivated
by racial animus. He argues that racially disparaging comments made by the prosecutor in
closing argument provide sufficient evidence to show that the decision to pursue the death
penalty in this case was motivated, at least in part, by racial discrimination.
At trial, during closing arguments, the prosecutor stated that Honie “did not murder a
drunken Indian in the park. . . . He did not murder a woman who, ah, had spent her live [sic]
drinking alcohol and puking and walking the streets and shoplifting at Wall-Mart [sic]. He
murdered someone that these people look up to.” TR ROA 606 at 54. Honie argues that the clear
intent of this statement was to draw a relative comparison between him—described with racist
comments—and the victim. Honie asserts that the prosecutor drew a comparison between a
person whom he believed deserved to live, and one whom he believed deserved to die, partially
for reasons not related to the offense.
A. Exhaustion
This claim was raised on direct appeal (Opening Brief of Appellant, 04/11/00, at 79-81)
and the Utah Supreme Court denied it on the merits. Honie I, 57 P.3d at 986. This court found
that this claim was exhausted and properly before this court. ECF No. 103.
B. “Clearly established” rule of law
The Utah Supreme Court based its ruling on this claim on Yick Wo v. Hopkins, 118 U.S.
356 (1886), stating that Honie “offered no indication that he was treated any differently than
another person of a different race or ethnicity in similar circumstances.” Honie I, 57 P.3d at 986.
The clearly established rule of Yick Wo and its progeny states that facially fair and impartial laws
“may be unconstitutional as applied if administered in such a way so as to cause unjust and

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illegal discriminations between persons in similar circumstances.” Id. (citing Yick Wo, 118 U.S.
at 374; McCleskey v. Kemp, 481 U.S. 279 (1987); Wayte v. United States, 470 U.S. 598,608-10
(1985); Oyler v. Boles, 368 U.S. 448, 455-56 (1962). The parties agree that on this claim the
Utah Supreme Court correctly identified the applicable clearly established federal law. ECF No.
123 at 86; see also ECF No. 122 at 184-87.
C. “Objectively unreasonable” application of Supreme Court precedent
While the parties agree that the Utah Supreme Court correctly identified applicable
federal law, Honie argues that the application of that law was unreasonable. He argues that
evidence of racially negative commentary during closing argument alone is sufficient to show
that the prosecution’s pursuit of the death penalty was motivated by racial animus. He
additionally identifies the court’s observation that the “racially-related comments… were clearly
offensive and distasteful” as evidence of the unreasonableness of its decision to uphold the
capital ruling. Honie I, 57 P.3d at 986. He asserts that in light of such a statement, any reasonable
court would find that the prosecutorial pursuit of the death penalty was racially motivated in
violation of Yick Wo and the Fourteenth Amendment. These arguments do not persuade this
Court.
In each Supreme Court case cited by Honie, the party asserting unfair application of a
facially impartial law presented some form of evidence of individuals in similar circumstances
who were treated differently to show that the law was being applied discriminatorily. McCleskey
v. Kemp, 481 U.S. at 286-87; Wayte, U.S. at 604; Oyler v. Boles, 368 U.S. at 454-55; Yick Wo,
118 U.S. at 374. However, in the instant case, Honie has offered no evidence to suggest that
other individuals in similar situations have been, or are being, treated differently. The Utah
Supreme Court noted this when it stated that the “defendant has offered no indication that he was

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treated any differently than another person of a different race or ethnicity in similar
circumstances.” Honie I, 57 P.3d at 986. Additionally, Honie has provided no authority to
suggest that this claim may be upheld without such evidence. In fact, the Supreme Court has
previously held the opposite. United States v. Armstrong, 517 U.S. 456, 457 (1996) (“To
establish a discriminatory effect in a race case, the claimant must show that similarly situated
individuals of a different race were not prosecuted.”). Based on the evidence presented, the Utah
Supreme Court was reasonable in determining that Honie had not met his burden to show that the
prosecution’s actions were motivated by race. Honie’s seventh claim for relief is denied.

TWELTH CLAIM FOR RELIEF
THE UTAH AGGRAVATED MURDER STATUTE FAILS TO NARROW THE CLASS OF
ELIGIBILITY FOR THE DEATH PENALTY, RESULTING IN SENTENCES THAT ARE
ARBITRARY AND ARE IN VIOLATION OF DUE PROCESS AND EQUAL PROTECTION
Honie asserts that the Utah aggravated murder statute, U.C.A. §76-2-202, is
unconstitutional under due process and equal protection because it fails to genuinely narrow the
class of persons eligible for the death penalty from the class of persons guilty of criminal
homicide generally.

A. Exhaustion
Honie raised this claim at trial (TR ROA 304-08) and on direct appeal (ECF 103 at 4)
(“Mr. Honie incorporated his pre-trial motion and memorandum by reference in his direct appeal
brief, thus exhausting it.”). The Utah Supreme Court denied the claim on the merits. Honie I, 57
P.3d 986. This court found that this claim was exhausted and properly before this court. ECF No.
103.
B. “Clearly established” rule of law

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The state court’s ruling on this claim relied on the United States Supreme Court’s ruling
in Lowenfield v. Phelps, 484 U.S. 231 (1988), as it was applied in State v. Young, 853 P.2d 327,
352 (Utah 1993). Lowenfield, and its predecessors, required that capital sentencing schemes must
“genuinely narrow the class of persons eligible for the death penalty and must reasonably justify
the imposition of a more severe sentence on the defendant compared to others found guilty of
murder.” Lowenfield, 484 U.S. at 244 (citing Zant, 462 U.S. at 877. Particularly in Lowenfield,
the court determined that the Louisiana capital murder statute was constitutional even when the
aggravating factor justifying the death penalty was an element of the underlying crime in the
guilt phase, because the statute narrowed the class of persons eligible for the death penalty by
legislative articulation at the guilt phase. The Louisiana statute at issue required specific intent
combined with one of ten other aggravating circumstances to establish qualification for the death
penalty. The court’s standards in Lowenfield are clearly applicable to Honie’s claim that the Utah
aggravated murder statute, which requires an intentional or knowing homicide combined with an
aggravating circumstance from any of twenty subsections, fails to narrow the class of persons
eligible for the death penalty.
As Lowenfield and its predecessors provide the appropriate federal precedent applicable
to this claim, the remaining question is whether reasonable jurists could agree that the Utah
Supreme Court correctly resolved the federal issue. See Harrington, 562 U.S. at 101.

B. “Objectively unreasonable” application of Supreme Court precedent
While Honie agrees that Lowenfield and its predecessors are the applicable precedent to
this case, he argues that the Utah Supreme Court unreasonably applied that precedent to Utah’s
aggravated murder statute. In evaluating this issue, the Utah Supreme Court stated:

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In State v. Young we held that so long as the initial narrowing of death-eligible
defendants occurs at the guilt phase in Utah's statutory scheme, any expanded
consideration of factors at sentencing is constitutional. 853 P.2d 327, 352 (Utah
1993); see also State v. Lafferty, 20 P.3d 342. With respect to the statutory
scheme applicable to defendant, the narrowing of death-eligible defendants occurs
at the guilt phase, see Utah Code Ann. §§ 76–5–202, 76–3–206, and 76–5–203,
and therefore we reject defendant's argument.
Honie I, 57 P.3d at 986.
To succeed on this claim, Honie “must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 786-87. Honie argues that 1) the court was unreasonable
because the broad expanse of aggravating circumstances in the Utah statute encompasses nearly
every homicide; 2) the court was unreasonable in relying on Young, which addressed a previous
version of the statute; and 3) the arbitrary nature in which the death penalty has been applied
makes clearly unreasonable the determination that the statute does narrow the class of death
eligible individuals. These arguments do not overcome the high burden of § 2254, that no
fairminded jurist would agree with the determination of the Utah Supreme Court.
While the list of aggravating circumstances in the statute at issue in Lowenfield is less
comprehensive than the list in the Utah statute, the structure of the statute is similar in nature,
requiring a showing of intent plus one of the aggravating factors. Honie himself states in his
petition, “[t]raditionally, when the merits phase is used as the narrowing mechanism, the
requirement to prove an aggravator to establish eligibility for the death penalty has been
determined to be enough of a check on the decisionmaker.” ECF No. 121 at 253. He then states,
however, that when the list of aggravators becomes as comprehensive as the list included in the
Utah statute, that check is no longer effective, and the application becomes arbitrary. While

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Honie may disagree with the Utah Supreme Court about the point at which a list of aggravators
becomes so comprehensive that it does not narrow the class of death eligibility, the Utah court’s
determination that it is similar to the statute in Lowenfield is not clearly or objectively
unreasonable.
Honie also claims that the court’s reliance on Young undermines the reasonableness of its
determination. But the court refers to its reasoning in Young and then applies that reasoning “to
the statutory scheme applicable to defendant.” Honie I, 57 P.3d at 986. The reference to Young
implies that the reasoning in this case is also centered on Lowenfield and this court is not to grant
a writ simply because of a lack of adequate citation. See Bell v. Cone, 543 U.S. 447, 455 (2005)
(“[F]ederal courts are not free to presume that a state court did not comply with constitutional
dictates on the basis of nothing more than a lack of citation.”).
Finally, Honie claims that the arbitrary application of the statute shows that the statute
fails to narrow the class. However, Honie does not provide adequate evidence of this claim and
so this court cannot state that no reasonable jurist could agree with the Utah Supreme Court’s
determination.
Under the high bar of § 2254, Honie has not shown “beyond any possibility for
fairminded disagreement” that the Utah aggravated murder statute which applied to his
conviction unconstitutionally fails to narrow the class of eligibility for the death penalty. See
Harrington, 562 U.S. at 103. The twelfth claim for relief is denied.

V.

CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11 of the Rules Governing Habeas Corpus Cases Under Section 2254,
“[t]he district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” U.S.C.S. Sec. 2254 Cases R. 11(a).

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Rule 22(b) of the Rules of Appellate Procedure states that an applicant in habeas corpus
proceedings “cannot take an appeal unless a circuit justice or a circuit or district judge issues a
certificate of appealability under 28 U.S.C. § 2253(c).” The Rule also states that “[i]f the district
judge has denied the certificate, the applicant may request a circuit judge to issue the certificate.”
Rule 22(b)(1). A number of courts have held that unless the district court has ruled upon whether
a certificate of appealability should issue, the circuit court is without jurisdiction to consider an
appeal. United States v. Mitchell, 216 F.3d 1126, 1130 (D.C. Cir. 2000) (“Rule 22(b) requires
initial application in the district court for a COA before the court of appeals acts on a COA
request.”); United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997) (“[J]urisdiction is
not vested in this Court because the district court has not yet considered whether COA should
issue.”).
Under AEDPA, a certificate of appealability (COA) may issue only if “the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). The
Supreme Court has said that the “substantial showing” standard “includes showing that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were “‘adequate to deserve
encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing
Barefoot v. Estelle, 463 U.S. 880, 893, and n. 4 (1983). When a district court rejects on the
merits a petitioner’s constitutional claims—which this court did with claims 1, 2, 3, 4, 5, 6, 7,
and 12 —the requirement for satisfying 2253(c) is straightforward: “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
This court, having considered the above standard, concludes that Honie has failed
to make a substantial showing of the denial of a constitutional right with regards to these claims

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for the reasons set forth in this Memorandum Decision and Order denying Honie’s Amended
Petition.

VI.

CONCLUSION

For the reasons set forth above, the court hereby denies Mr. Honie’s claims in his
Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. ECF. No 121. The
court also denies Mr. Honie a certificate of appealability. He now “may seek a certificate from
the court of appeals under Federal Rule of Appellate Procedure 22.” U.S.C.S. Sec. 2254, Cases
R. 11(a).

SO ORDERED this 12th day of June, 2019.

BY THE COURT:

s/ Julie A. Robinson
Judge Julie Robinson
United States District Judge

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