ruling in ron lafferty case

8/20/2019 Ruling in Ron Lafferty case

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

RONALD W. LAFFERTY,

Petitioner,

v.

SCOTT CROWTHER, Warden, Utah State

Prison,

Respondent.

ORDER

Case No. 2:07-CV-322

Judge Dee Benson

Petitioner Ronald W. Lafferty filed a motion asking the district court to stay his case

pursuant to Rhines v. Weber, 544 U.S. 269 (2005), so that he may return to state court and

exhaust five of the claims in his federal habeas petition. (Dkt. No. 350.) Respondent Scott

Crowther 1 objected to the motion, arguing that even though those claims have not been

exhausted in state court, Mr. Lafferty does not meet the necessary legal standard under Rhines

for the court to grant such a stay. (Dkt. No. 362.)

Mr. Lafferty identified five unexhausted claims in his Rhines motion (Claims 3, 4, 5, 7,

and 33). But, in his reply in support of his motion, Mr. Lafferty noted that the state has argued

elsewhere that there are other unexhausted and partially exhausted claims in his habeas petition

that are not properly before the court. (Dkt. No. 366 at 3.) Mr. Lafferty suggested that because

the state is contesting the procedural posture of certain other claims in his petition, “this Court

might find that it makes more sense to consider the procedural status of all Mr. Lafferty’s claims

before considering this Motion to Stay.” (Id.) Mr. Lafferty also asked that he be allowed to

1 Mr. Crowther is the named representative for the State of Utah and the court will refer to him as “the state.”

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Case 2:07-cv-00322-DB Document 370 Filed 06/15/15 Page 1 of 22


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amend his Rhines motion “to include any other claims this Court finds have not been exhausted

in state court, in order to obviate the need to file a second motion to stay and abey.” (Id.)

Given that federal courts may only consider habeas claims that are exhausted at the state

level, the court agrees that addressing the procedural posture of the claims for which exhaustion

is contested by the state is the most efficient way to proceed with Mr. Lafferty’s case.

After reviewing Mr. Lafferty’s Second Amended Petition for Writ of Habeas Corpus

(Dkt. No. 39.), the state’s Response to the Petition (Dkt. No. 69.), and Mr. Lafferty’s two Reply

briefs (Dkt. Nos. 173 and 349.), the court finds that, in addition to the five claims that are the

subject of Mr. Lafferty’s Rhines motion, there are three additional claims that the state argues are

not exhausted (Claims 2, 16, and 26) and seven claims that the state believes are only partially

exhausted (Claims 6, 8, 9, 10, 11, 12, and 29). Mr. Lafferty represents that all of these claims

have been fully exhausted in state court.

The court has considered the arguments advanced by Mr. Lafferty and the state regarding

the exhaustion status of these claims, as well as the record and the relevant Utah State Supreme

Court decisions about Mr. Lafferty’s case. As explained below, the court finds that five of the

contested claims are exhausted (Claims 2, 6, 9, 12, and 16), that four are only partially exhausted

(Claims 8, 10, 11, and 29), and that one claim is not exhausted (Claim 26).

Mr. Lafferty may amend his Rhines motion to include the unexhausted claim and

partially unexhausted claims, and the state may respond to any amended motion. The court will

issue an order regarding the pending Rhines motion as quickly as possible after all of the claims

that may be subject to the Rhines order are before the court.

I. Exhaustion

A state prisoner who puts a habeas corpus petition in front of a federal court must have

exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “The exhaustion doctrine is

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principally designed to protect the state courts’ role in the enforcement of federal law and

prevent disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S. 509, 518 (1982).

“Only if the state courts have had the fair opportunity to hear the claim sought to be vindicated in

a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies.”

Picard v. Connor, 404 U.S. 270, 276 (1971). The measure of this “fair opportunity” is whether

“the substance of the federal habeas corpus claim” was first presented to the state court, and

whether the state court had the chance to apply controlling legal principles to the facts before it.

See id. at 277-78. The exhaustion requirement is satisfied if the issues have been “‘properly

presented to the highest state court, either by direct review of the conviction or in a

postconviction attack.’” Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999), quoting Dever

v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).

The nature of a capital habeas case is that the entire state court record is before the

federal court for its consideration. But a federal court may not identify, read into, or create a

federal claim that was not presented to the state courts based on that record, which is what

happened in Picard, when the First Circuit found a constitutional claim that was never brought to

the attention of the state courts “inherent in th[e] facts” before it. The United States Supreme

Court reversed, finding the claim “entered [the] case only because the Court of Appeals injected

it.” Id.

Similarly, in Anderson v. Harless, 459 U.S. 4 (1982), the federal district court and court

of appeals found a “self-evident” federal constitutional due process issue in the record before it,

even though the parties had only submitted a state law analysis to the court for review. “It is not

enough that all the facts necessary to support the federal claim were before the state courts, or

that a somewhat similar state-law claim was made.” Anderson, 459 U.S. at 6 (citations omitted).

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What matters is that the federal legal claim before the federal court is the same as the one that

was articulated to the state court.

But demanding identical factual and legal language is “unwarranted hairsplitting,”

especially when the legal claim remains the same but the precise factual predicate changes. See

Weaver v. Thompson, 197 F.3d 359, 364 (9th

Cir. 1999). Exhaustion requires only that the

ultimate constitutional question presented to the federal court for disposition was before the state

courts, even if in federal court there are “variations in the legal theory or factual allegations

urged in its support.” Picard, 404 U.S. at 277. A claim is exhausted as long as those variations

in federal court do not “fundamentally alter the legal claim” considered by the state courts. See

Vasquez v. Hillery, 474 U.S. 254, 260 (1986).

II. Exhausted Claims

Claim 2

Mr. Lafferty’s second claim for relief is that the state’s retrial of Mr. Lafferty after the

Tenth Circuit vacated his original conviction and sentence violated the federal double jeopardy

clause of the Fifth and Fourteenth Amendments. (Dkt. No. 39 at 42.) The Tenth Circuit found

that the trial court used the wrong competency standard in Mr. Lafferty’s first trial, and it granted

his initial federal habeas corpus petition. Lafferty v. Cook, 949 F.2d 1546 (1992). The Tenth

Circuit concluded that “[t]he state is of course free to retry Lafferty.” Id. at 1556.

Mr. Lafferty argues that Claim 2 is exhausted because he presented it to the Utah

Supreme Court, which denied it. (Dkt. No. 39 at 42.)

The state argues that this claim is not exhausted because, by citing to Burks v. United

States, 437 U.S. 1 (1978), Mr. Lafferty is now raising the double jeopardy claim on a “different

ground” than he did before the Utah Supreme Court. (Dkt. No. 69 at 15-16.)

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In Burks, the United States Supreme Court distinguished cases that have been reversed

for trial error from those that have been reversed for evidentiary insufficiency. See Burks, 437

U.S. at 15-16. The Burks decision clarified that the double jeopardy clause only bars retrial in

the latter. Mr. Lafferty, in his federal petition, argues that the use of the wrong competency

standard in his first trial was not just trial error, but that it is equivalent to a finding of evidentiary

insufficiency. Mr. Lafferty urges the court to characterize the Tenth Circuit’s decision in this

way, and to find that the Utah State Supreme Court’s decision to the contrary was an

unreasonable application of clearly established federal law.

On his direct appeal to the Utah Supreme Court, Mr. Lafferty argued that the double

jeopardy clause should have prevented his second trial. (ROA, Direct Appeal Br. at 107-110).

He argued that court error and the prosecution’s withholding of exculpatory evidence should

have prevented a second prosecution. To support his argument, Mr. Lafferty cited to McNair v.

Hayward, 666 P.2d 321 (1983), a Utah Supreme Court decision that incorporated Burks into

Utah case law. McNair held when the trial error was such that the case would have been

reversed on appeal for insufficient evidence, double jeopardy barred retrial. In McNair, the court

stated the general rule that “a defendant who obtains a new trial on the basis of errors in the trial

or guilty plea that lead to his conviction can be retried without double jeopardy.” Id. at 326.

And, like the Burks court, the McNair court also held that the general rule does not apply when

the defendant is convicted on insufficient evidence. “If the defendant could not challenge that

error without forfeiting his right to assert the bar of double jeopardy on a retrial, the protection of

that clause would be rendered nugatory.” Id.

In his direct appeal brief, Mr. Lafferty also cited to State v. Ambrose, 598 P.2d 354

(1979), which held that a trial court’s sua sponte declaration of a mistrial operates as an acquittal,

and bars retrial, unless the defendant consents or “legal necessity” so requires. Mr. Lafferty

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argued that the Tenth Circuit’s reversal in his case was the equivalent of the trial court’s

declaration of a mistrial in Ambrose, and that double jeopardy should have barred his retrial.

The Utah Supreme Court considered both of Mr. Lafferty’s arguments, but decided

against them. State of Utah v. Lafferty (Lafferty IV), 20 P.3d 342, 379-382 (2001).

Significantly, in its decision, the Utah Supreme Court cited to Burks for the position that a new

trial was the remedy for trial error.

Based on Mr. Lafferty’s argument regarding double jeopardy on direct appeal, as well as

the Utah Supreme Court’s resolution of it, the court concludes that Mr. Lafferty’s double

jeopardy claim is exhausted. Mr. Lafferty argues that the Utah Supreme Court applied federal

law erroneously, and he urges this court to adopt a different approach. Specifically, Mr. Lafferty

takes issue with the Utah Supreme Court’s dismissal of the insufficient evidence argument as

supported by Burks and McNair. He urges this court to view the use of the wrong competency

standard not as mere “trial error” as the Utah Supreme Court concluded, but instead as equivalent

to “insufficient evidence.” The Utah Supreme Court chose not to find that equivalency. The

issue is now properly before this court.

Claim 6

In his sixth claim for relief, Mr. Lafferty argues that prosecutorial misconduct violated

his constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.

According to Mr. Lafferty, at issue are prosecutorial comments made during closing

arguments at the guilt and penalty phases of his second trial and the legal standard that the Utah

Supreme Court used to evaluate them. In particular, Mr. Lafferty objects to the (1) prosecutorial

references to “other bad acts” evidence and the implication that Mr. Lafferty was a threat to law

enforcement, (2) the use of “fabricated evidence” to support the testimony of Charles “Chip”

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Carnes, and (3) statements that Mr. Lafferty should receive the death penalty for killing an

infant. (Id. at 77-79.)

Mr. Lafferty argues that this claim was exhausted on direct appeal and via his post-

conviction appeal. (Dkt. No. 39 at 77.) Specifically, Mr. Lafferty notes that his opening brief

on direct appeal argued that the prosecutor’s comments during closing argument were

inappropriate. (Dkt. No. 173 at 24-27.)

The state argues that only the last of these three examples of prosecutorial misconduct

was presented to and exhausted by the Utah Supreme Court. (Dkt. No. 69 at 20.)

The Utah Supreme Court considered Mr. Lafferty’s claim regarding the prosecutor’s

closing argument and denied the claim. See Lafferty IV, 20 P.3d at 367-70; see also Lafferty v.

State of Utah (Lafferty V), 175 P.3d 530, 539 (2008).

Mr. Lafferty’s claim about prosecutorial misconduct during his closing arguments is

exhausted. The claim is not limited to the one factual example Mr. Lafferty urged the Utah

Supreme Court to consider in support of the claim. In federal court, a petitioner may ask the

district court to consider “variations” in the legal theory and factual allegations to support a

particular claim as long as the state court was on notice of the federal constitutional claim. See

Picard, 404 U.S. at 277. The legal claim before the court is that there was prosecutorial

misconduct during the closing argument of Mr. Lafferty’s trial. The consideration of additional

factual examples does not fundamentally alter that legal claim. See Vasquez, 474 U.S. at 260.

The Utah Supreme Court had the entirety of Mr. Lafferty’s trial record before it, and ample

opportunity to consider the prosecutors’ closing comments from the guilt and penalty phases.

The Utah Supreme Court has stated that its review of the record in death penalty cases is

expansive, that it considers the record before it, and that it is willing to reverse on issues not

reviewed by counsel. See Tillman v. Cook, 855 P.2d 211, 221 (Utah 1993). Moreover, in

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Tillman, the Utah Supreme Court recognized that a legal claim before a court may be unaltered

even when different factual statements are offered in support of it. “Although Tillman’s present

claim implicates different prosecutorial statements, it is based on the same ground for relief.”

Accordingly, the court finds that Claim 6, even with the additional examples of prosecutorial

misconduct during closing arguments, is the same claim that was presented in state court.

Accordingly, it is exhausted.

Claim 9

Mr. Lafferty alleges that he was denied effective assistance of trial counsel during his

second trial and sentencing in violation of his federal constitutional rights. (Dkt. No. 39 at 107-

17.) He argues that, at trial, his counsel failed to question jurisdiction, conduct an adequate guilt

and penalty phase investigation, conduct adequate jury voir dire, and make an appropriate

motion to sequester the jury. In addition, Mr. Lafferty argues that his trial counsel provided

ineffective assistance by presenting the testimony of his brother, Dan. Mr. Lafferty also argues

that his trial counsel failed to impeach witness Mr. Carnes, object to the prosecution’s closing

arguments about the victim, and appropriately challenge Utah’s capital sentencing structure.

(Id.) Mr. Lafferty argues that, during sentencing, his counsel failed to adequately investigate and

present mitigation evidence. (Id.)

Mr. Lafferty argues that this claim is exhausted because he submitted it to the Utah

Supreme Court during his post-conviction relief appeal. (Dkt. No. 39 at 107.)

The state argues that the only aspects of this claim that are properly exhausted with the

Utah Supreme Court are those involving jury sequestration, the insufficient investigation and

presentation of mitigation evidence during the penalty phase, the failure to meet the ABA

Guidelines, and the prosecution’s closing argument. (Dkt. No. 69 at 85-86.)

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The Utah Supreme Court considered this claim on appeal. See Lafferty V, 175 P.3d at

534-39.

The court finds Claim 9 exhausted. Considering the additional allegations of trial

counsel’s deficiencies does not fundamentally alter the legal claim before the court. See

Vasquez, 474 U.S. at 260. Moreover, the cumulative effect of a trial counsel’s errors may

undermine confidence in the outcome of a trial and constitute ineffective assistance of counsel

even when particular instances, taken in isolation, do not.

Claim 12

With this claim, Mr. Lafferty argues that he was denied effective assistance of counsel

during the state post-conviction proceedings because sufficient state funding was not available to

his counsel, and because his counsel failed to take advantage of the funding that was available.

(Dkt. No. 39 at 136.)

Mr. Lafferty argues that he has exhausted this claim by raising it with the post-conviction

trial court and on post-conviction appeal to the Utah Supreme Court. (Id.)

The Utah Supreme Court rejected the claim because it was not presented with sufficient

factual support or evidence to support Mr. Lafferty’s position. See Lafferty V, 175 P.3d at 542.

The state agrees that Mr. Lafferty’s argument about the inadequacy of funding has been

exhausted, but argues that Mr. Lafferty has not exhausted the aspect of his claim related to his

counsel’s pleading and evidentiary deficiencies. (Dkt. No. 69 at 98.)

The court finds that Claim 12 is exhausted. The Utah Supreme Court found that post-

conviction counsel failed to adequately plead and support Mr. Lafferty’s claim. Mr. Lafferty

now argues that such a finding involved an unreasonable application of clearly established

federal law and an unreasonable determination of the facts. Based on those arguments, the claim

is properly before the court.

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Claim 16

Mr. Lafferty’s sixteenth claim for relief is that his death sentence violates the Eighth

Amendment’s prohibition against cruel and unusual punishment because his sentence is

disproportionate to the one received by his co-defendant brother. (Dkt. No. 39 at 155.) He

argues that this claim is exhausted because he presented it to the Utah Supreme Court.

The state argues that this claim is not exhausted. The state objects to Mr. Lafferty’s

argument that it is unconstitutional to sentence someone to death who did not commit the murder

and it objects to Mr. Lafferty’s citations to Enmund v. Florida, 458 U.S. 782 (1982) and Tison v.

Arizona, 481 U.S. 137 (1987), to support it. The state also argues that Mr. Lafferty did not

present his argument against the Utah Supreme Court’s reliance on testimony by Mr. Carnes to

the Utah Supreme Court. (Dkt. No. 69 at 16-19.)

On direct appeal, Mr. Lafferty argued that the death penalty is unconstitutionally

disproportionate to his culpability for three reasons: (1) He was mentally ill and unable to

understand his actions when the crime was committed, and imposing the death penalty on him

and others is cruel and unusual punishment; (2) the sentence of death was disproportionate to his

culpability status as an accomplice to the murders that his brother Dan committed, especially

given that Dan only received a life sentence; and (3) his crime was not as bad as other crimes

that have received the sentence of death. (ROA, Dir. Appeal Br. at 94-107.)

The exhaustion disagreement between the parties focuses on the second and third of Mr.

Lafferty’s proportionality arguments, how the Utah Supreme Court addressed them, and what

claims, if any, Mr. Lafferty may make about that analysis in his federal habeas appeal.

There are a number of ways that the Utah Supreme Court could have responded to Mr.

Lafferty’s claim that the death penalty is not proportionate to his culpability. The Utah Supreme

Court chose to focus its analysis on Mr. Lafferty’s accomplice status: “Defendant was not

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sentenced as an accomplice, but as the perpetrator of the murders.” Lafferty IV, 20 P.3d at 375.

The court found there was evidence in the record to support the jury’s finding that not only did

Mr. Lafferty commit at least one of the murders himself, “with his own hands,” but also that he

“masterminded the scheme.” Id. The court pointed to the testimony of Mr. Carnes and

unspecified other “ample evidence” to support the jury verdict of “two counts of aggravated

murder.” Based on that, the court concluded that Mr. Lafferty’s sentence of death was not

disproportionate to his brother’s sentence of life, and it stated that it would not conduct a case-

by-case comparison of convictions and sentences even when faced with a case like Mr.

Lafferty’s.

In his federal habeas appeal, Mr. Lafferty takes issue with that analysis. (Dkt. No. 39 at

155-57.) He argues that the death penalty is “disproportionate punishment” for a crime he

maintains he did not commit, despite what the jury and the Utah Supreme Court concluded. He

cites to Enmund and Tison to support his claim, and urges this court to consider whether the facts

before the jury and the Utah Supreme Court support his conviction and sentence. He argues that

the Utah Supreme Court’s decision was contrary to, or involved an unreasonable application of

clearly established federal law (which Enmund and Tison reflect), and that the state court’s

rejection of Claim 16 was based on an unreasonable determination of the facts. To the latter

point he challenges the state court’s reliance on the testimony of Mr. Carnes.

The state’s objection to Mr. Lafferty’s use of Enmund and Tison in his legal argument is

not persuasive. Both are cases that were part of the legal landscape regarding proportionality in

death penalty cases when the Utah Supreme Court rendered its 2001 decision in Mr. Lafferty’s

case. Mr. Lafferty’s legal argument before this court is not limited to the exact cases that he

cited, or failed to cite, in previous briefs, when the use of such cases does not change the nature

of the legal claim presented to the federal court.

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The state’s objection to Mr. Lafferty’s argument about the testimony of Mr. Carnes is not

any more persuasive. The Utah Supreme Court had the testimony of Mr. Carnes in the record

before it, and referenced that testimony in its decision. See Lafferty IV, 20 P.3d at 374. Mr.

Lafferty argues that the Utah Supreme Court’s reliance on that testimony constituted an

unreasonable determination of the facts, which is a legitimate argument before the court.

The court finds that this claim is exhausted. Mr. Lafferty presented the substance of this

federal claim to the state court, and now takes issue with the facts and legal reasoning that the

state court relied upon to deny it.

III. Partially Unexhausted Claims

Claim 8

Mr. Lafferty’s eighth claim for relief is that Mr. Lafferty was denied the effective

assistance of trial and appellate counsel because his counsel at both of those stages had an actual

conflict of interest. (Dkt. No. 39 at 87.) The heart of Mr. Lafferty’s claim is that Michael

Esplin, who represented Mr. Lafferty during his second trial and on direct appeal, previously

represented Mr. Lafferty’s brother and co-defendant, Dan Lafferty, at Dan’s trial. Mr. Lafferty

also argues that his constitutional rights were violated because Stephen Killpack, as an attorney

with the Utah County Public Defender Association, briefly represented Mr. Lafferty in his

second trial as co-counsel with Mr. Esplin.2 Mr. Killpack ultimately withdrew from the case as

Mr. Lafferty’s counsel after the state filed a motion to disqualify him from representing Mr.

Lafferty.

Mr. Lafferty represents that his ineffective assistance of counsel claim is exhausted

because he presented it to the Utah Supreme Court during his post-conviction appeal and it was

2 Earlier in his career, Mr. Killpack had been a Deputy Utah County Attorney and Utah County Attorney and was

extensively involved in the state’s first prosecution of Mr. Lafferty.

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rejected on the merits. (Dkt. No. 39 at 87.) The Utah Supreme Court found that there was “no

factual support to show” that Mr. Lafferty was harmed by Mr. Esplin’s previous representation

of his brother. See Lafferty V, 175 P.3d at 544.

The state agrees that Mr. Lafferty’s claim against Mr. Esplin is exhausted. (Dkt. No. 69

at 60.) But the state objects to the inclusion of Mr. Killpack in the claim. (Id. at 80.)

The court finds that Mr. Lafferty’s argument about Mr. Killpack’s conflict of interest, and

the impact of that conflict of interest on his representation of Mr. Lafferty, is not exhausted. The

addition of Mr. Killpack to Mr. Lafferty’s claim before this court fundamentally alters the nature

of the claim. Claim 8 is not exhausted as to Mr. Killpack.

Claim 10

In this tenth claim for relief, Mr. Lafferty argues that he received ineffective assistance of

counsel on direct appeal because his counsel not only failed to meet the ABA Guidelines for the

Appointment and Performance of Defense Counsel in Death Penalty Cases (2003), but also

failed to identify and preserve grounds for relief that were apparent from the record. (See Dkt.

No. 39 at 120.)

Mr. Lafferty offers fourteen examples of the ways in which direct appeal counsel failed

to provide effective assistance:

(1) Direct appeal counsel were not qualified to handle a death penalty appeal

under then-existing Utah Rules of Criminal Procedure or the ABAGuidelines;

(2) Direct appeal counsel failed to appeal denial of the motion regarding the

death qualification of the jury venire, as well as the selection process andselected jurors; they also failed to ensure a full record of jury selection;

(3) Direct appeal counsel failed to appeal denial of Lafferty’s motion to

change venue;

(4) Direct appeal counsel failed to challenge prosecutorial misconduct duringclosing argument;

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(5) Direct appeal counsel failed to appeal trial counsel’s failure to adequately

discover and preserve evidence;

(6) Direct appeal counsel failed to challenge penalty phase instructions,

including the prohibition of considering residual doubt;

(7) Direct appeal counsel failed to challenge the court’s failure to instruct the jury that they did not need to find the mitigating factors unanimously;

(8) Direct appeal counsel failed to challenge the jury instructions, whichunconstitutionally shifted the burden to Mr. Lafferty;

(9) Direct appeal counsel failed to challenge the fact that the jurors were notrequired to submit a special verdict form;

(10) Direct appeal counsel failed to adequately appeal the finding that Mr.

Lafferty was competent to stand trial and failed to preserve and present

evidence that Mr. Lafferty was given beer and/or other inebriatingsubstances;

(11) Direct appeal counsel failed to challenge Utah’s death penalty scheme andthe punishment of death;

(12) Direct appeal counsel failed to appeal the method of execution by firing

squad or by lethal injection;

(13) Direct appeal counsel failed to claim that Mr. Lafferty was not competent

to make a decision about execution method;

(14) Direct appeal counsel failed to appeal the issue that executing one who ismentally ill when executed or when the offense was committed isunconstitutional.

(Dkt. Nos. 39 at 120-22 and 349 at 50-52.)

Mr. Lafferty argues that Claim 10, with all of its examples, which he refers to as “points,”

is exhausted because he raised the issue of ineffective assistance of direct appeal counsel with

the post-conviction trial court and again with the Utah Supreme Court during his post-conviction

review at the state level.

The Utah Supreme Court rejected his claim. The Utah Supreme Court analyzed only two

of the fourteen examples of ineffective assistance that Mr. Lafferty now urges this court to

consider (examples 1 and 3). See Lafferty V, 175 P.3d at 539-40.

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The state argues that Mr. Lafferty’s claim of ineffective assistance of counsel on direct

appeal is only exhausted as to those two examples, and that the other twelve are not exhausted.

(Dkt. No. 69 at 92.)

Of those remaining twelve examples, Mr. Lafferty has withdrawn his allegation of

ineffective assistance of direct appeal counsel for six of them (examples 4, 5, 8, 10, 11, and 13),

and they will no longer function as part of Claim 10. These examples have been raised as

separate claims in his petition. (Dkt. No. 349 at 52-56.)

With those six examples no longer at play in Claim 10, six remain for the court to

consider. Mr. Lafferty unsuccessfully tried to raise four of the remaining six examples of

counsel’s ineffective direct appeal assistance during the post-conviction process (examples 2, 6,

7, and 9). Generally, the court would find that the inclusion of these additional examples did not

fundamentally alter the legal claim before the court, as it did with the additional examples in

Claims 6 and 9. But the procedural history of the additional factual examples alleged in Claim

10 requires a different analysis because some of the examples were dismissed by the post-

conviction trial court as procedurally barred. Mr. Lafferty argues that the post-conviction trial

court should have allowed him to file a third amended post-conviction petition to include these

claims as ineffective assistance of counsel claims (Dkt. No. 349 at 59.). But there is nothing in

the record to show that Mr. Lafferty’s counsel asked to file a third amended petition.

When Mr. Lafferty initially raised these examples of direct appeal counsel’s alleged

deficiencies during his post-conviction process, they were not couched as ineffective assistance

of counsel claims. His Second Amended Writ of Habeas Corpus Petition presented the

substance of the conduct as direct claims. The state argued the claims were not properly before

the post-conviction trial court because they could have been and should have been brought on

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direct appeal instead of being introduced at the post-conviction stage. (PCROA, Mot. to Dismiss

and for Part. Summ. J. at 10-11 (Bates 305-06).)

It was only in response to this argument for dismissal and partial summary judgment that

Mr. Lafferty’s post-conviction counsel argued for the first time that the ineffective assistance of

his direct appeal counsel was precisely the reason that the claims were not raised until the post-

conviction proceeding. (PCROA, Mem. in Opp. To Mot. to Dismiss and Summ. J. at 9-13

(Bates 344-48).) Mr. Lafferty’s counsel argued that because the same lawyer represented Mr.

Lafferty at trial and on direct appeal, the post-conviction appeal was the first time that these

claims could have been identified and brought to a court for review. (Id. at 12.) He also argued

that Utah’s post-conviction statute allowed a court to review claims that were not raised at trial

or on direct appeal due to ineffective assistance of counsel. (Id.)

Despite these arguments, the post-conviction trial court granted the state’s motion for

summary judgment as to those claims (and others that are not referenced as part of Claim 10),

and dismissed them as procedurally barred. (PCROA, Rul. On Mot. to Dismiss and for Part.

Summ. J. at 12-15 (Bates 456-59).) The trial court refused to address the ineffective assistance

of direct appeal counsel argument as to these four examples now before the court (and others)

because doing so would violate Utah’s pleading requirements. The court found that the

argument was improperly raised for the first time in Mr. Lafferty’s memorandum opposing

summary judgment, and not in Mr. Lafferty’s second amended petition for post-conviction

relief.3 (Id.) Even though the same lawyer who made the trial decisions was the one who was

supposed to second-guess those decisions and identify his own errors, the trial court found that

“sufficient facts” were available to the lawyer such that he “could have” raised additional errors

3 Mr. Lafferty argues the constitutionality of the trial court’s decision in Claim 30 of his petition for

habeas relief before this court.

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on appeal but “chose not to.” (Id. at 12-13.) Putting aside the issue of whether direct appeal

counsel made such a “choice” or whether such a choice could ever be properly exercised by a

lawyer against himself, the implication of the post-conviction trial court’s ruling is that but for

the fact that post-conviction counsel did not plead the claims as ineffective assistance claims, the

trial court could have and would have considered the substance of the claims regarding direct

appeal counsel’s alleged ineffective assistance.

The Utah Supreme Court affirmed the decision of the trial court. See Lafferty V, 175

P.3d at 540-42.

Based on this procedural history, the court finds that these four examples of ineffective

assistance of direct appeal counsel (examples 2, 6, 7, and 9) were not properly presented to the

state court as claims in the post-conviction petition and are not exhausted. Whether there is good

cause for the failure to exhaust is best addressed in the context of the Rhines motion.

The two remaining Claim 10 examples of how direct appeal counsel performed

deficiently are example 12 and example 14. Example 12 alleges that direct appeal counsel was

deficient for failing to adequately appeal Mr. Lafferty’s method of execution by firing squad or

lethal injection. Mr. Lafferty argued that the firing squad was unconstitutional in his post-

conviction petition. (PCROA, Sec. Amend. Petition at 21 ¶ 39 (Bates No. 210).) The trial court

granted the state’s motion for summary judgment on this claim. (PCROA, Rul. On Mot. to

Dismiss and for Part. Summ. J. at 34-36 (Bates 435-37).) Mr. Lafferty did not appeal this issue

to the Utah Supreme Court. As discussed more below with regard to Claim 26, example 12 is

not exhausted.

Example 14 alleges that direct appeal counsel was deficient for failing to argue that

executing someone who was mentally ill when the crime was committed or who will be mentally

ill when executed is unconstitutional (emphasis added).

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Mr. Lafferty argues that “the underlying issues” for example 14, like the others, was

raised in his petition for post-conviction relief, but he does not provide a specific citation. (Dkt.

No. 349 at 56.)

The court is not clear as to what “underlying issues” Mr. Lafferty is referencing. Mr.

Lafferty only raised the issue of mental retardation in his post-conviction petition, arguing that

he never had the opportunity to raise that line of defense in his case. (PCROA, Second Amended

Writ of Habeas Corpus (Part 1) at 21-22 (Bates No. 209-210).) The trial court dismissed that

argument. (PCROA, Rul. On Mot. to Dismiss and for Part. Summ. J. at 36-38 (Bates 433-35).)

Mr. Lafferty did not appeal that issue to the Utah Supreme Court.

Mr. Lafferty’s direct appeal counsel raised the constitutionality of sentencing someone

who was mentally ill when the crime was committed on direct appeal to the Utah Supreme

Court. (ROA, Appeal Br. at 72-77.) The Utah Supreme Court did not find merit in that issue.

See Lafferty IV, 20 P.3d at 364-367. The Utah Supreme Court did not address the

constitutionality of executing someone who is mentally ill when executed, and that part of

example 14 (the part after the “or”) is not exhausted.

Based on the foregoing, Claim 10 is exhausted only as it relates to examples (1) and (3).

The rest of the examples are either not exhausted (examples 2, 6, 7, and 9), only partially

exhausted (examples 12 and 14), or no longer part of Claim 10 based on Mr. Lafferty’s

withdrawal of them (4, 5, 8, 10, 11, and 13).

Claim 11

With Claim 11, Mr. Lafferty argues that he received ineffective assistance of counsel

during his post-conviction review in violation of his Fifth, Sixth, Eighth, and Fourteenth

Amendment rights, and that his counsel’s failures include, but are not limited to the failure to

meet ABA Guidelines, failure to identify and preserve grounds for relief, failure to adequately

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allege claims of ineffective assistance of trial and appellate counsel to preserve other grounds for

relief, and failure to raise instances of fundamental structural error apparent from the record,

failure to allege claims that would have provided the court with an opportunity to review other

claims on the merits. (Dkt. No. 39 at 130.) Mr. Lafferty also alleges that state post-conviction

counsel failed to adequately plead and support Mr. Lafferty’s claim regarding impeachable

evidence during Mr. Lafferty’s competency proceedings, failed to adequately plead their own

ineffectiveness, and failed to adequately use the time and money provided to conduct an

adequate investigation. (Id. at 131-32.)

Mr. Lafferty argues that he presented this claim to the Utah Supreme Court during his

post-conviction appeal, and that it was rejected. (Id. at 124.)

The Utah Supreme Court dismissed the claim and found that Mr. Lafferty’s counsel

failed to provide sufficient evidentiary support for the claim that there was insufficient time to

adequately investigate his case or to support the detrimental impact of funding limitations. See

Lafferty V, 175 P.3d at 542.

The state argues that Mr. Lafferty’s claim about the effectiveness of his post-conviction

counsel is not exhausted except as it relates to the specific issues of his counsel’s alleged failure

to meet the ABA Guidelines due to funding and time limitations. (Dkt. No. 69 at 98.)

Claim 11 is not exhausted except as to the ABA Guidelines and funding and time

limitations. Mr. Lafferty suggests that one explanation for the fact that the Utah Supreme Court

was not presented with the additional alleged failings of post-conviction counsel is that the same

counsel represented Mr. Lafferty during his post-conviction proceeding at the trial court level

and on his appeal to the Utah Supreme Court from the denial of his request for post-conviction

relief from that court. (See Dkt. No. 39 at 124.)

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Claim 29

Mr. Lafferty argues that because he was mentally ill at the time of the crime, and will be

when executed, imposing the death penalty violates his constitutional rights. (Dkt. No. 39 at

217.) He represents that he presented this claim to the Utah Supreme Court on direct appeal and

that it is exhausted. (Id.)

The Utah Supreme Court considered part of Mr. Lafferty’s argument and rejected it.

Specifically, the court addressed whether it is unconstitutional to impose punishment of death on

someone who may be mentally ill, but not legally insane. See Lafferty IV, 20 P.3d at 364-666.

In addition, the court found that since Mr. Lafferty was not found to be mentally ill at the time of

the murders or during trial, he did not have standing to contest the proportionality of imposing

the death penalty against defendants who are mentally ill at the time of the crime or at trial. See

id. at 374-75.

The state notes that Mr. Lafferty has exhausted his argument that his death sentence is

unconstitutional because he allegedly was mentally ill at the time of the murders. (Dkt. No. 69 at

162.) But the state argues that Mr. Lafferty has not exhausted the future aspect to his claim,

which is that executing him while he is still mentally ill, will violate his constitutional rights.

This latter point may not be exhausted, but it could not be exhausted given the procedural

posture of this case. The constitutionality of executing Mr. Lafferty if he were determined to be

mentally ill in the future is not a proper issue for the court to address now. The state may not

execute prisoners who are legally insane. See Ford v. Wainwright, 477 U.S. 399 (1986).

Whether Mr. Lafferty is mentally ill to the point of legal insanity on his execution date, if and

when one is set, will be a question of fact for the court to address in light of Ford at that point.

For now, the only part of this claim that is exhausted is the imposition of the death

penalty on Mr. Lafferty given his claim of mental illness at the time the crimes were committed.

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IV. Unexhausted Claim

Claim 26

Mr. Lafferty argues that his death sentence, as it will be imposed, is cruel and unusual

punishment in violation of his constitutional rights. (Dkt. No. 39 at 194-200.) Specifically, Mr.

Lafferty argues that execution by firing squad is unconstitutional. Mr. Lafferty also argues that

he did not make a choice to be executed by firing squad and that, as a result, Utah law requires

his execution to be by lethal injection, which would also be cruel and unusual punishment. (Id.)

Mr. Lafferty asserts that this claim is exhausted because the Utah Supreme Court

addressed “this precise issue” on direct appeal. (Dkt. No. 173, citing Lafferty IV, 20 P.3d at

365.)

The state argues this claim is not exhausted. (Dkt. No. 69 at 14-15.)

Mr. Lafferty raised the constitutionality of a firing squad execution with the trial court

during his post-conviction proceedings. (PCROA, Second Amended Petition at 21 ¶ 39 (Bates

No. 210).) The trial court dismissed the claim when it ruled on the state’s motion for summary

judgment. (PCROA, Rul. on Mot. to Dismiss and for Part. Summ. J. at 34-36 (Bates 435-37).)

Mr. Lafferty did not include the constitutionality of the firing squad in his post-conviction appeal

to the Utah Supreme Court, nor has the Utah Supreme Court considered that question directly.

The Utah Supreme Court generally addressed the constitutionality of the death sentence

“as applied” to Lafferty on direct appeal. See Lafferty IV, 20 P.3d at 365-66. But the Utah

Supreme Court did not address the constitutionality of the firing squad or lethal injection.

Rather, it addressed whether federal and state constitutional guarantees against cruel and unusual

punishment prevent the imposition of the death penalty on offenders like Mr. Lafferty who may

be mentally ill but not legally insane or incompetent. See id. Claim 26 is not exhausted.

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V. Conclusion

Mr. Lafferty may dismiss the one unexhausted claim and the parts of the four partially

exhausted claims that are not exhausted, or amend his currently-pending motion for a Rhines

stay to include them. The court will accept response and reply briefs limited to those claims.

The amended Rhines motion, if Mr. Lafferty chooses to file one, is due on July 10, 2015.

SO ORDERED this 15th day of June, 2015.

BY THE COURT:

________________________________________

Dee BensonUnited States District Judge


ruling in ron lafferty case

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