Honie v. Crowther

Filing 142

MEMORANDUM DECISION AND ORDER-denying 136 Motion to Alter Judgment; Motions terminated: 136 MOTION to Alter Judgment filed by Taberon Dave Honie. The court also DENIES Mr. Honies request, in the alternative, that the court grant certificates of appealability on Claims 1 and 4. See Order for details. Signed by Judge Julie A. Robinson on 10/8/19. (jmr)

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
LARRY BENZON, Warden, Utah State
Prison,

Judge Julie A. Robinson

Respondent.

Petitioner Taberon Dave Honie, pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure, has filed a motion to alter or amend the judgment entered on June 12, 2019. ECF No.
135. Honie asks for reconsideration of two claims in his federal petition: that trial counsel had
and neglected constitutional obligations to consult with Honie, first, about the guilt-concession
trial strategy (claim 1, partial); and second, about admission at the penalty phase of evidence of
Honie’s confession to child sex abuse (claim 4, partial). ECF No. 136 at 2, 7. Honie argues that
the court’s memorandum decision denying habeas relief (ECF No. 135) overlooked and therefore
“committed clear error” in denying these partial claims. ECF No. 136 at 2.
I.

LEGAL STANDARD

Pursuant to Rule 59(e), the court may alter or amend a judgment it has entered if there is
“(1) an intervening change in the controlling law, (2) new evidence previously unavailable, [or]
(3) the need to correct clear error or prevent manifest injustice.” Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark Corp v. Samson Res. Corp., 57 F.3d

924, 948 (10th Cir. 1995)). Mr. Honie submits that relief pursuant to Rule 59(e) is appropriate
here because the court committed clear error in its denial of Claims 1 and 4. A Rule 59(e)
motion is “appropriate where the court has misapprehended the facts, a party’s position, or the
controlling law.” Id. “It is not appropriate to revisit issues already addressed or advance
arguments that could have been raised in prior briefing.” Id. (citing Van Skiver v. United States,
952 F.2d 1241, 1243 (10th Cir. 1991)).
II.

ANALYSIS

A. Claim 1
In Claim 1 of his amended petition, Mr. Honie argued (1) that trial counsel was
ineffective for failing to conduct a reasonable investigation into a viable trial defense of
voluntary intoxication prior to conceding guilt to aggravated murder; and (2) that trial counsel
was ineffective for failing to consult with Honie about the decision to proceed to trial on a
concession of guilt theory. Honie argues that this court did not address the second aspect of this
claim.
This court, however, did not overlook the second portion of claim 1. The court’s
memorandum decision described the claim it was reviewing as follows: “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 the concession-of-guilt theory.” ECF
No. 135 at 8 (emphasis added). This court had considered the entire claim, including the lack-ofconsultation allegation, when it disposed of claim 1.

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This court reviewed all the evidence before the Utah Supreme Court regarding Honie’s
level of intoxication. This court then found that the Utah court reasonably concluded that a
voluntary intoxication defense would not undermine mens rea because “Honie had not pointed to
any evidence,” indeed “still has not proffered any evidence that he did not know that he was
killing a person.” ECF No. 135 at 13. This court held that without that evidence, Mr. Honie
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
undermines confidence in the outcome.
With regard to the second portion of claim 1, Mr. Honie relies on Florida v. Nixon, 543
U.S. 175 (2004), in arguing that trial counsel was under a duty to consult with Mr. Honie
regarding his trial strategy, especially when that strategy was to expressly concede that Mr.
Honie was guilty of Aggravated Murder. Nixon, however, stands for the opposite proposition:
“When counsel informs the defendant of the strategy counsel believes to be in the defendant’s
best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any
blanket rule demanding the defendant’s explicit consent.” Id. at 192.
Honie has failed to provide any evidence that his defense counsel proceeded forward
with a concession-of-guilt theory without his explicit consent. Honie has pointed to no
evidence in the State court record or in any other previous proceedings that his counsel
proceeded without consulting him about the strategy on which the trial defense counsel built
their case. Honie has also provided no evidence that he objected to this strategy.

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Additionally, Honie has not shown that counsel decided to proceed in spite of his objections
because Honie had no competing viable defenses to choose between, since the voluntary
intoxication theory was not viable.
Mr. Honie argues in this motion that “the state post-conviction court found that
counsel did not consult with [Mr. Honie] prior to conceding his guilt.” ECF No. 141 at 5. In
his petition, Honie has also argued that the district court ruled “that trial counsel’s
concession strategy was not appropriate” because it was not clear that he explained his
concession strategy to Honie. ECF No. 121 at 94. But as the Respondent correctly notes,
these arguments rest on a mischaracterization of the state court record. The state postconviction court did not, as Honie implies, find that trial counsel deficiently failed to consult
with Honie. See ECF No. 136 at 4 (stating that the Utah Supreme Court “ignored the postconviction court’s findings”). Rather, the state post-conviction court made no finding,
instead resolving the claim on prejudice. And the Utah Supreme Court disregarded the
comment because, in the absence of evidence, no finding could be made on it and counsel
was strongly presumed to have complied with his constitutional obligation. And to the extent
it was “unclear” what advice counsel gave Honie, it was only unclear because Honie failed to
proffer evidence as was his burden. See Burt v. Titlow, 571 U.S. 12, 23 (2013) (“It should go
without saying that the absence of evidence cannot overcome the ‘strong presumption that
counsel’s conduct [fell] within the wide range of reasonable professional assistance.”).
Finally, Mr. Honie’s reliance on McCoy v. Louisiana, 138 S. Ct. 1500, 1510 (2018),
is misplaced. McCoy held that trial counsel may not admit guilt at trial, no matter how welladvised that strategy, “over the client’s intransigent objection to that admission.” Mr. Honie
has not presented any evidence that (1) he objected to the concession-of-guilt strategy or (2)

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counsel did not explain that strategy to him in the first place. It should also be noted that
Honie has not even alleged, much less demonstrated, that McCoy would be retroactive under
Teague v. Lane, 489 U.S. 288 (1989).
B. Claim 4
In Claim 4 of his petition, Mr. Honie argued that trial counsel was ineffective for failing
to investigate evidence of aggravated sexual abuse of a child (D.R.), and for introducing alleged
admissions by Mr. Honie related to this charge during the penalty phase, despite the fact that the
jury did not find this as an aggravating circumstance during the guilt phase of the trial, and
despite the fact that Mr. Honie denied he was guilty of this charge. ECF No. 121 at 140-43. As
part of this claim, Mr. Honie argued that “[t]rial counsel was ineffective for failing to consult
with Mr. Honie about this allegation before admitting his alleged statement during the penalty
phase.” ECF No. 121 at 140-43.
In his motion to alter or amend, Mr. Honie asserts that this court did not address the
second aspect of this claim, that trial counsel failed to consult with Mr. Honie regarding the
admission of this aggravating circumstances during the penalty phase of his trial. ECF No. 136
at 7. The problem with this assertion is that the court did address, and reject, the second aspect
of claim 4.
The court first stated that Honie “has not even argued that there would be a reasonable
probability of a more favorable sentencing outcome without the sexual abuse aggravating
circumstance.” ECF No. 135 at 42. Trial counsel presented the sex abuse evidence to show
Honie’s remorse. Honie’s failure to allege prejudice from that evidence is fatal to any challenge
to the inclusion of the evidence at sentencing. And the evidence was clearly not prejudicial
because “the sentencing court ‘was prepared to find’ independent of his admission that he

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molested D.R.,” and because fairminded jurists could agree that counsel’s decision to use the
remorse evidence was reasonable. Id. Even in this motion, the only prejudice that Honie has
come up with is the claim that “had trial counsel consulted with Mr. Honie about this, as he was
required to do, Mr. Honie would have vehemently opposed [] this concession at sentencing.”
ECF No. 136 at 9.
Honie cites McCoy v. Louisiana, 138 S. Ct. 1500 (2018), for the proposition that
counsel’s admission of guilt over the client’s objection is structural error, and that this court’s
failure to apply McCoy to this aspect of the claim constitutes clear error. However, Honie relies
on McCoy without establishing the critical factual predicate that he intransigently objected to
trial counsel’s use of the molestation evidence. And as Respondent points out, “McCoy was not
about ‘opportunity to object,’ which is Honie’s specific complaint, it was about intransigent
objections which Honie waited 11 years to make.” ECF No. 140 at 8. And as noted above,
Honie has not even alleged, much less demonstrated, that McCoy would be retroactive under
Teague v. Lane, 489 U.S. 288 (1989).
This court held, “Honie’s argument that his counsel should have questioned him about
whether he actually molested Dakota also fails to overcome the double deference standard.”
ECF. No. 135 at 42. “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 not true. In fact, Honie waited 11 years to
challenge Dr. Cohn’s sworn testimony about his tearful admission.” Id. Honie has never
suggested any reason counsel should have doubted Dr. Cohn’s testimony under those
circumstances. Under Strickland, the reasonableness of counsel’s investigation “depends
critically” on the information that the client provides. 466 U.S. at 691.

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III.

CONCLUSION

For the above reasons, the court hereby DENIES Respondent’s Motion to Alter or
Amend (ECF No. 136). The court also DENIES Mr. Honie’s request, in the alternative, that the
court grant certificates of appealability on Claims 1 and 4.

SO ORDERED this __8th ___ day of October, 2019.

BY THE COURT:
s/ Julie A. Robinson__
Judge Julie Robinson
United States District Judge

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