*1 Before HARTZ , BACHARACH , and EID , Circuit Judges.
_____________________________________________
BACHARACH , Circuit Judge.
_____________________________________________
TABLE OF CONTENTS 1. Mr. Menzies’s Murder Conviction and Sentence ............................10 2. Appellate and Post-Conviction Proceedings ...................................12 3. Federal Habeas Proceedings ..........................................................13 4. Standard of Review ......................................................................13 5. The Utah Supreme Court reasonably rejected Mr. Menzies’s
claims of ineffective assistance of counsel during the guilt phase ...........................................................................................15 5.1 Standard for Obtaining Relief Based on Ineffective Assistance of Counsel .................................................16 5.2 Identification Testimony at Trial ................................17 5.2.1 Photo Arrays .............................................................18 5.2.2 Identification of Objects .............................................18 5.2.3 Lineup .......................................................................19 5.3 The Utah Supreme Court’s Disposition of Claims Involving Identification Testimony ..............................19 5.4 Mr. Menzies’s Challenges to the Utah Supreme Court’s Decision .........................................................20 5.4.1 The Photo Arrays ........................................................21 5.4.1.1 Deficiency ................................................................. 21 5.4.1.1.1 Statement that a Suspect was Already in Custody ..........21 5.4.1.1.2 Second Viewing of the Photo Array .............................22 5.4.1.1.3 Lack of an Admonition ................................................24 5.4.1.1.4 False Dichotomy .........................................................25 *3 5.4.1.2 Prejudice ....................................................................26 5.4.2 The Lineup ................................................................. 27 5.4.3 The Identification of Objects .......................................28 5.4.4 Failure to Investigate the Account of Mr. Larrabee and His Girlfriend .......................................................33 5.5 Failure to Challenge the Testimony of Walter Britton .......................................................................35 5.5.1 The Utah Supreme Court’s Disposition of the Claim .....36 5.5.2 Mental- Health Evidence ..............................................37 5.5.3 Benefits from Testimony .............................................40 5.5.4 Mr. Benitez’s Statement ..............................................43 5.5.4.1 Procedural Default ......................................................43 5.5.4.2 Merits ........................................................................50 6. The tria l court’s instruction on reasonable doubt constituted a
reasonable application of Supreme Court precedent and conformed to the Constitution ......................................................51 6.1 Reasonableness of the Utah Supreme Court’s Decision ....................................................................52 6.1.1 Substantial Doubt ......................................................53 6.1.2 Willingness to Act ......................................................56 6.2 Absence of a Constitutional Violation ..........................58 7. The Utah Supreme Court reasonably rejected Mr. Menzies’s
claim of ineffective assistance of counsel during sentencing ...........59 7.1 The Evidence Presented in State Court ........................59 7.2 Mr. Menzies’s Theories of Ineffectiveness ..................60 *4 7.3 The Attorney’s Duty to Investigate ..............................60 7.4 Bar to Considering Evidence Presented in Federal Court .........................................................................61 7.5 Delayed Investigation of the Mitigating Evidence ........64 7.6 Failure to Investigate Other Mitigating Evidence .........65 7.7 Failure to Present Evidence of Organic Brain Damage ......................................................................67 8. The Utah Supreme Court acted reasonably in rejecting Mr.
Menzies’s challenges to the admissibility of documents from his prison file ..............................................................................70 8.1 The Utah Supreme Court reasonably concluded that introduction of mental-health evaluations had not violated the Fifth Amendment ......................................70 8.2 Introduction of Mr. Menzies’s prison file did not deny the right to confrontation, constitute a denial of due process, or entail cruel and unusual punishment ................................................................. 77 8.2.1 Confrontation Clause ..................................................77 8.2.2 Due Process ................................................................79 8.2.3 Cruel and Unusual Punishment ....................................80 9. The Utah Supreme Court reasonably concluded that the trial
court had not violated the Constitution by relying on uncharged aggravating circumstances ............................................................81 9.1 Utah law allowed the prosecution to allege additional aggravating circumstances at sentencing .......82 9.2 Mr. Menzies obtained adequate notice of the aggravating circumstances bearing on the sentence .......84 *5 9.3 The prosecution did not need to prove each aggravating circumstance beyond a reasonable doubt .........................................................................89 9.4 The Utah Supreme Court didn’t violate any constitutional rights by omitting discussion of two aggravating circumstances from the analysis of harmless error ............................................................90 10. The Utah Supreme Court reasonably rejected Mr. Menzies’s
challenge to the constitutionality of the aggravating circumstances ..............................................................................91 10.1 Aggravating Circumstances for Murders that are Heinous, Atrocious, and Cruel .....................................92 10.1.1 Merits ........................................................................93 10.1.2 Consideration of Mitigating Factors .............................96 10.2 Sufficiency of the Evidence on Aggravating Circumstances ...........................................................96 10.3 Reasonable jurists could reject Mr. Menzies’s claim involving reliance on duplicative aggravating circumstances .............................................................97 11. In rejecting Mr. Menzies’s challenges involving errors in the
trial transcript, the Utah Supreme Court reasonably applied Supreme Court precedent and found the pertinent facts ..................99 11.1 The Utah courts provided the parties with an opportunity to correct errors in the trial transcript ...... 100 11.2 The trial court found no constitutional violation, and the record contained two versions of the transcript ................................................................. 101 11.3 The Utah Supreme Court upheld the trial court’s ruling that the transcript was accurate enough for a meaningful appeal .................................................... 101 *6 11.4 The Utah Supreme Court’s decision was not based on an unreasonable application of clearly established federal law .............................................. 102 11.5 The Utah Supreme Court did not base its decision on an unreasonable determination of fact .................. 106 11.5.1 Reliance on the Docketing Statement ........................ 106 11.5.2 Failure to Provide a Sufficient Transcript of Voir Dire ......................................................................... 108 11.5.3 Omission of a Conference Outside the Jury’s Presence ................................................................... 112 11.5.4 Additions by the Note Reader .................................... 115 11.5.5 Errors Involving Numbers ........................................ 118 12. A certificate of appealability is unwarranted on the
admissibility at trial of Mr. Britton’s testimony from the preliminary hearing . .................................................................. 122 12.1 Standard for a Certificate of Appealability ................ 123 12.2 Mr. Britton’s Unavailability ..................................... 124 12.3 Reliability ................................................................ 125 13. Conclusion ................................................................................ 126
Mr. Ralph Leroy Menzies was convicted of first-degree murder in
Utah state court and sentenced to death. The Utah Supreme Court affirmed
the denial of his motion for a new trial,
State v. Menzies
,
The state court decisions led Mr. Menzies to seek habeas relief in federal court. The federal district court denied relief, prompting Mr. Menzies to appeal. We affirm.
In this appeal, we address eight issues: Ineffective assistance of trial counsel in the guilt phase. To
1. establish ineffective assistance of counsel, a criminal defendant must show that his attorney’s performance was deficient and prejudicial. Mr. Menzies argued to the Utah Supreme Court that his counsel had been deficient by failing to • move for suppression of identification testimony, • investigate the accounts from prosecution witnesses identifying Mr. Menzies, and
• challenge the admissibility of testimony from the preliminary hearing.
Although these three challenges weren’t made, Mr. Menzies’s trial counsel undermined the prosecution’s case in other ways. Counsel pointed out that the witnesses couldn’t definitively identify Mr. Menzies and challenged the credibility of the *8 prosecution’s witnesses. Given these challenges to the prosecution’s case, the Utah Supreme Court concluded that trial counsel’s performance was neither deficient nor prejudicial. Habeas relief is warranted only if this conclusion constituted an unreasonable application of the United States Supreme Court’s precedent. Under this standard, habeas relief was unwarranted because the state appellate court had reasonably applied the United States Supreme Court’s precedents. Jury instruction on reasonable doubt. Under the Fourteenth 2. Amendment’s Due Process Clause, a trial court must instruct the jury that the prosecution bears the burden of proving guilt beyond a reasonable doubt. The trial court gave this instruction, adding that the doubt must be substantial and real rather than imaginary. The Utah Supreme Court determined that this additional explanation hadn’t tainted the jury instruction. This determination constituted a reasonable application of the United States Supreme Court’s precedents . Ineffective assistance of counsel in the sentencing phase. At
3. the sentencing phase, counsel’s performance may be deficient if the attorney fails to conduct a thorough investigation of mitigating circumstances. Mr. Menzies’s attorneys conducted a reasonably thorough investigation. So the Utah Supreme Court reasonably rejected Mr. Menzies’s claim of ineffective assistance in the sentencing phase.
4. Introduction of statements made during psychiatric evaluations. The United States Supreme Court has not interpreted the Fifth Amendment to bar admission of a defendant’s un- Mirandized statements made during psychiatric evaluations preceding the charged crime. The psychiatric evaluations—conducted without Mirand a warnings—had preceded the alleged murder. So the Utah Supreme Court reasonably rejected Mr. Menzies’s Fifth Amendment challenge to the introduction of his statements for his psychiatric evaluations. Introduction of Mr. Menzies’s prison file. The trial court
5. allowed the prosecution to use Mr. Menzies’s prison file at the sentencing stage, and the Utah Supreme Court upheld this ruling. And the Supreme Court has not *9 • applied the Sixth Amendment’s Confrontation Clause to sentencing proceedings or
• found a violation of due process from the introduction of false or misleading prison records.
Given the absence of governing precedent, the Utah Supreme Court acted reasonably in concluding that the introduction of the prison file hadn’t violated Mr. Menzies’s rights to confrontation or due process.
6. Notice of aggravating circumstances. A defendant has a right to notice of aggravating circumstances. The Utah Supreme Court concluded that the State had satisfied this right through the statute identifying the aggravating circumstances that render a defendant eligible for the death penalty. In reaching this conclusion, the Utah Supreme Court reasonably applied the United States Supreme Court’s precedents. Under those precedents, a state appeals court could reasonably conclude that notice could come from Utah’s statutory list of aggravating circumstances.
7. Duplication of aggravating circumstances. In identifying aggravating circumstances warranting a death sentence, the prosecution must provide a meaningful distinction between capital and non- capital murders.
The jury found that Mr. Menzies was eligible for the death penalty because he had committed a murder in connection with a robbery and an aggravated kidnapping. After the jury found Mr. Menzies eligible for the death penalty, the trial court found duplicative aggravating circumstances involving pecuniary gain and robbery. The Utah Supreme Court rejected Mr. Menzies’s characterization of these duplicative aggravating circumstances as a violation of the Eighth Amendment. This conclusion constituted a reasonable application of the record and the United States Supreme Court’s precedents.
8. Errors in the trial transcript. A criminal defendant has a constitutional right to a record that’s reliable enough to provide meaningful appellate review. The transcript of Mr. Menzies’s trial contained errors, but Mr. Menzies did not show prejudice to his appeal. Given this failure to show prejudice, the Utah *10 Supreme Court reasonably rejected Mr. Menzies’s claim involving errors in the trial transcript.
Mr. Menzies has not only presented these appellate arguments but also moved to expand the certificates of appealability. In part of this motion, Mr. Menzies argues that he should be allowed to appeal the denial of his claim involving the introduction of testimony from a preliminary hearing. [1] We reject this argument, concluding that no jurist could reasonably credit this claim. So we deny Mr. Menzies’s motion to expand the certificates of appealability. Mr. Menzies’s Murder Conviction and S entence
1. This case grew out of the 1986 disappearance of M rs. Maurine Hunsaker. At a gas station where Mrs. Hunsaker had been working, law enforcement had found an empty cashier’s booth and customers waiting to pay. Cash was missing from the register.
Two days after M rs. Hunsaker had disappeared, her corpse was found in a wooded area outside Salt Lake City. S omeone had strangled Mr s. Hunsaker and slashed her throat.
Suspicion quickly turned to Mr. Menzies. On the morning after Mrs. Hunsaker’s disappearance, two teenagers saw a man and a woman walking into the wooded area. The teenagers heard a woman scre am and then saw *11 the man return ing to his car. After hearing reports about Mr s. Hunsaker’s body, one of the teenagers (Tim Larrabee) contacted the police and described the man.
Based on Mr. Larrabee’s description, the police created a composite drawing of the man and picked three photographs of possible matches, including that of Mr. Menzies. The police showed these three photographs and three others to Mr. Larrabee. From these photographs, Mr. Larrabee picked the one of Mr. Menzies and said that he looked like the man in the wooded area.
The police also obtained other incriminating evidence showing (1) Mrs. Hunsaker’s presence in Mr. Menzies’s car and apartment, (2) Mr. Menzies’s possession of M rs. Hunsaker’s identification cards, and (3) Mr. Menzies’s confession to the murder.
First, the police found Mr s. Hunsaker’s thumbprint in the car that Mr. Menzies had been driving. And in Mr. Menzies’s apartment, officers found
• roughly the same amount of cash ($116) that had been missing from the gas station and
• Mrs. Hunsaker’s purse. Along with the cash and purse, the police matched fibers found on Mrs. Hunsaker’s clothing to carpet fibers in Mr. Menzies’s apartment.
Second, the police found evidence that Mr. Menzies had discarded Mrs. Hunsaker’s identification cards. As the police were investigating Mrs . Hunsaker’s disappearance, they arrested Mr. Menzies on an unrelated charge. Upon his booking into the jail, he raced into a changing room. In that room, an officer later found Mr s. Hunsaker’s identification cards. And Mrs. Hunsaker’s social security card turned up in the belongings of Mr. Menzies’s girlfriend.
Third, a fellow jail inmate testified that Mr. Menzies had confessed to killing Mr s. Hunsaker. According to the inmate, Mr. Menzies had admitted cutting her throat.
A jury found Mr. Menzies guilty of capital homicide and aggravat ed kidnapping. After this finding, Mr. Menzies waived his right to sentencing by a jury, opting for the trial judge to decide the sentence. So the trial judge conducted the penalty phase, obtaining additional evidence and eventually sentencing Mr. Menzies to death. Appellate and P ost-Conviction Proceedings
2.
After sentencing, Mr. Menzies moved for a new trial on the ground
that the transcript contained too many errors for appellate review. The trial
court denied the motion, and the Utah Supreme Court affirmed the denial
of relief as to the transcription errors.
State v. Menzies
,
Following the direct appeal, Mr. Menzies sought post- conviction
relief in state court, a lleging ineffective assistance of counsel. The state
trial court denied post-conviction relief. The Utah Supreme Court first
remanded for further proceedings,
Menzies v. Galetka
,
3. Federal Habeas Proceedings
Mr. Menzies sought federal habeas relief , presenting 4 3 claims. The district court denied habeas relief, and Mr. Menzies obtained a certificate of appealability on 9 of the claims. In t hese claims, he alleged ineffectiveness of his counsel during the guilt and penalty stages, error in the jury instruction on reasonable doubt, introduction of inadmissible evidence in the sentencing phase, failure to properly channel the trial judge’s discretion through aggravating circumstances, and errors in the trial transcript. Standard of Review
4.
We engage in de novo review of the federal district court’s legal
analysis, applying the same standard as the district court .
Littlejohn v.
Trammell
,
• contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or
• based on an unreasonable determination of the facts given the evidence presented in state court.
28 U.S.C. § 2254(d).
To determine whether a state -court decision conflicted with or
unreasonably applied clearly established law, we make two determinations.
Budder v. Addison
,
Our deference extends not only to t he state court’s legal conclusions
but also its factual findings. For these findings, we defer to the state court
unless it “plainly misapprehend[ed] or misstate[d] the record in making
[its] findings, and the misapprehension goes to a material factual issue that
is central to [the] petitioner’s claim.”
Ryder ex rel
.
Ryder v. Warrior
, 810
F.3d 724, 739 (10th Cir. 2016) (quoting
By rd v. Workman
,
If the state’s highest court acted unreasonably in applying Supreme
Court precedent or in finding facts, the district court must decide whether
the conviction or sentence had violated federal law or the federal
constitution.
See Fry v. Pliler
,
5. The Utah Supreme Court reasonably rejected Mr. Menzies’s
claims of ineffective assistance of counsel during the guilt phase.
Mr. Menzies claims ineffective assistance of counsel in the guilt phase based on his attorneys’ failure to
• seek suppression of the identification testimony of Mr. Larrabee, a witness who testified that he had seen a man resembling Mr. Menzies in the area where Mr s. Hunsaker’s body was discovered,
• investigate the accounts of Mr. Larrabee and his girlfriend, and • investigate and challenge the testimony of Walter Britton, a witness who testified that Mr. Menzies had confessed to the killing.
The Utah Supreme Court rejected Mr. Menzies’s claims, and the federal district court concluded that rejection of these claims was reasonable based on Supreme Court precedent and the record. We agree.
5.1 Standard for Obtaining Relief Based on Ineffective
Assistance of Counsel
Mr. Menzies’s claim of ineffective assistance is governed by the two-
part standard established by
Strickland v. Washington
,
Under that standard, courts must determine whether the attorneys’
performance was deficient.
See Strickland
,
To overcome the presumption of reasonableness, a petitioner “must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. This inquiry is “highly deferential” and must be made without “the distorting effects of hindsight.” Id. at 689. Strategic decisions made after a “thorough investigation” are afforded even greater deference and are “virtually unchallengeable.” Id. at 690.
Even if the representation had been deficient, the federal district court must determine whether the deficiency would have been prejudicial. Id. at 682. Prejudice exists if there “is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
When a habeas petitioner alleges ineffective assistance of counsel,
courts must engage in doubly deferential judicial review.
Knowles v.
Mirzayance
,
5.2 Mr. Larrabee testified at trial that he and his girlfriend had visited the wooded area where Mrs. Hunsaker’s corpse was later found.
Mr. Larrabee said that while he was at the wooded area, he had seen a man *18 and a woman walking closely together. Mr. Larrabee heard the m talking, but could not tell what they were saying.
About ten minutes later, Mr. Larrabee heard a scream. He assumed that the woman had slipped or had seen an animal. About fifteen to twenty minutes after hearing the scream , Mr. Larrabee saw the man returning alone to the parking lot and an older car that looked like it was in poor condition.
5.2.1 Photo Arrays
After hearing reports of the discovery of Mr s. Hunsaker’s body, Mr. Larrabee contacted the police. A police officer responded by showing Mr. Larrabee a photo array of six subjects. Mr. Larrabee initially didn’t pick any of the photographs. But minutes later, he asked to view the photographs again and picked the one of Mr. Menzies, saying that he resembled the man in the wooded area.
5.2.2 Identification of Objects
The officers also took Mr. Larrabee to a parking lot and asked him if any of the cars resembled the one he had seen in the wooded area . Mr. Larrabee identified a car that Mr. Menzies had borrowed.
The officers also showed Mr. Larrabee a coat belonging to Mr. Menzies. Mr. Larrabee testified that the coat resembled the one that the man had worn in the wooded area.
5.2.3 Lineup
Months later, Mr. Larrabee viewed a lineup with eight individuals, including Mr. Menzies. Mr. Larrabee identified another man as the person in the wooded area. So the prosecutor didn’t ask Mr. Larrabee on direct examination about the lineup. But on cross- examination, Mr. Larrabee admitted that he had failed to identify Mr. Menzies during the lineup.
To counter that admission, the prosecutor conducted redirect examination. There Mr. Larrabee pointed out that shortly after the lineup, he asked a prosecutor if someone else in the lineup (who was Mr. Menzie s) was the suspect.
Mr. Menzies’s counsel objected to this testimony and moved for a mistrial. The trial court struck this part of the testimony but declined to grant a mistrial.
5.3 The Utah Supreme Court’s Disposition of Claims Involving
Identification Testimony In the Utah Supreme Court, Mr. Menzies complained of trial counsel’s failure to seek suppression of Mr. Larrabee’s testimony about the photo arrays. The Utah Supreme Court rejected this claim based on a failure to show either deficient representation or prejudice. On the issue of deficient representation, the court reasoned that
• Mr. Menzi es had failed to present evidence of undue suggestiveness and
• trial counsel acted reasonably in pointing out the flaws in Mr.
Larrabee’s testimony rather than seeking suppression.
Menzies v. State
,
For Mr. Larrabee’s identification of Mr. Menzies following the lineup, the Utah Supreme Court observe d that the trial court had stricken this part of the testimony. Id. at 618.
5.4 Mr. Menzies’s Challenges to the Utah Supreme Court’s
Decision In our c ourt, Mr. Menzies again argues that his trial counsel had failed to (1) argue undue suggestiveness in the photo arrays, lineup, and object identifications, and (2) seek suppression of Mr. Larrabee’s identification testimony.
A photo array or lineup should be excluded under the Fourteenth
Amendment’s Due Process Clause only when the circumstances are “so
impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.”
Simmons v. United States
,
5.4.1 Mr. Menzies contends that his trial counsel should have sought exclusion of identification testimony based on undue suggestiveness in the photo arrays.
5.4.1.1 Deficiency
The state supreme court reasonably applied federal law and the record when concluding that defense counsel had not acted deficiently in their approach to the photo arrays.
5.4.1.1.1 Statement that a Suspect was Already in Custody
In challenging the admissibility of identification from the photo
arrays, Mr. Menzies argues that Mr. Larrabee knew that the suspect was
already in custody. But the Utah Supreme Court concluded that Mr.
Larrabee had viewed the photo arrays before learning that the suspect was
in custody.
Menzies v. State
,
This conclusion reflected a reasonable interpretation of the record. In the state post-conviction proceedings, Mr. Menzies argued that the Utah Supreme Court had confused the lineup with the photo arrays, insisting that a law-enforcement officer had told Mr. Larrabee before the photo arrays that a suspect was in custody. See Post- Conviction R. at 12, 293. This argument conflicts with Mr. Larrabee’s sworn statement. There he said that the law-enforcement officer’s comment had preceded the lineup, not the photo arrays. Given that sworn statement, the Utah Supreme Court *22 reasonably found that when the photo arrays were conducted, Mr. Larrabee hadn’t known that the police had anyone in custody. [2] Menzies v. State , 344 P.3d 581, 618 (Utah 2014).
Mr. Menzies does not point to any evidence undermining the Utah Supreme Court’s understanding of the timing of the law-enforcement officer’s statements. Under that timing, the officer’s alleged statement would not have supported suppression of Mr. Larrabee’s testimony about the photo arrays. [3]
5.4.1.1.2 Second Viewing of the Photo Array
Mr. Menzies also argues that his trial counsel should have challenged the admissibility of Mr. Larrabee’s testimony about his second viewing of the photos. According to Mr. Menzies, the second viewing was too suggestive because Mr. Larrabee had examined the photos and couldn’t make an identification.
Mr. Menzies failed to preserve this argument by omitting it in
district court.
See Harris v. Sharp
,
Mr. Menzies’s argument would fail even if he had preserved it in district court. At trial, Mr. Larrabee hadn’t made a firm identification from his second look at the photos; he instead had said only that one of the men (Mr. Menzies) looked “most like” the man seen in the wooded area.
When the trial court ruled, it had no precedential opinion in federal or state court addressing the admissibility of this kind of testimony or the effect of reshowing photos after an inability to make an identification. [5] So a fair-minded jurist could justifiably view defense counsel’s failure to object as reasonable.
Mr. Menzies points to an out- of-circuit opinion that found undue
suggestiveness:
Thomas v. Varner
,
The Utah Supreme Court could reasonably find no similarly suggestive comments here. So the Utah Supreme Court reasonably concluded that Mr. Menzies’s counsel had not acted deficiently by declining to seek suppression of the second photo array.
5.4.1.1.3 Lack of an Admonition
Mr. Menzies also argues that law-enforcement officers failed to
admonish Mr. Larrabee that the photo array might not include the suspect.
But the Supreme Court has never required this admonition, and our court
hasn’t viewed the lack of such an admonition as fatal.
E.g.
,
United States
v. Worku
,
5.4.1.1.4 False Dichotomy
Mr. Menzies also asserts that the Utah Supreme Court created a false choice between seeking suppression of the identification testimony and impeaching it after it had been allowed into evidence. He bases this assertion on two sentences in the Utah Supreme Court’s opinion:
Mr. Menzies has not raised a genuine issue of material fact
regarding trial counsel’s decision to impeach Mr. Larrabee’s . . .
testimony. Trial counsel acted reasonably in pointing out the
flaws in the testimony rather than seeking to suppress it on the
ground that the police used unnecessarily suggestive tactics.
Menzies v. State
,
Mr. Menzies takes these sentences out of context. Right before these two sentences, the court had explained at length why it didn’t regard the identification testimony as unduly suggestive. Id. at 617– 19. Based on that explanation, the court stated that it viewed Mr. Menzies’s challenges as attacks on “the weight,” rather than the admissibility, of the identification testimony. Id. at 618. The court did not suggest that defense counsel had to choose between a pretrial motion to suppress and impeachment at trial. We thus reject Mr. Menzies’s assertion that the Utah Supreme Court had relied on a false choice between a motion to suppress and impeachment at trial. *26 5.4.1.2. Prejudice
The Utah Supreme Court also acted reasonably in concluding that Mr. Menzies had not established prejudice. In a single sentence, Mr. Menzies asserts that the result of the trial would have been different if the trial court had suppressed evidence from the photo array.
According to Mr. Menzies, the only evidence tying him to the crime scene was Mr. Larrabee’s testimony. But Mr. Menzies disregards much of the evidence tying Mr. Menzies to the murder. See Menzies v. State , 344 P.3d 581, 591 (Utah 2014) (discussing “numerous pieces of evidence indicating that Mr. Menzies killed Mrs. Hunsaker”).
In any event, the Utah Supreme Court needed to address prejudice in
light of the argument that Mr. Menzies had presented.
See Green v. Louder
,
Even now, Mr. Menzies does not say what was wrong with the Utah
Supreme Court’s reasoning on prejudice. Given that failure, we are hard-
pressed to question the reasonableness of the court’s decision on prejudice.
See Wellmon v. Colo. Dep’t of Corrs.
,
5.4.2 Mr. Menzies also argues that his counsel should have moved to suppress Mr. Larrabee’s testimony that he had asked after the lineup if Mr. Menzies was the suspect. Mr. Menzies contends that the lineup was impermissibly suggestive because (1) his shirt was much darker than the other men’s shirts, (2) irregularities in the photo array had contaminated the lineup, and (3) an officer had told Mr. Larrabee that the suspect had recently gained or lost 20 pounds.
Mr. Menzies failed to preserve these contentions by omitting them
from the habeas petition.
S ee Harris v. Sharp
,
Even if Mr. Menzies had not waived or forfeited these contentions,
we’d reject them because the trial court struck the testimony about the
lineup and told the jury to disregard this testimony.
See Williams v.
Bagley
,
5.4.3 Mr. Menzies also claims deficiencies in his trial counsel’s failure to seek suppression of Mr. Larrabee’s testimony identifying
• the car that he had seen in the parking lot and • the coat that Mr. Menzies had worn.
Mr. Menzies points out that
• there were only one or two older cars in the parking lot (where Mr. Larrabee had pointed to the car owned by Mr. Menzies’s friend) and
• a detective had shown Mr. Larrabee only a single coat .
In the Utah Supreme Court, Mr. Menzies argued that officers had
used unduly suggestive procedures to obtain Mr. Larrabee’s identification
of the car and the coat. The Utah Supreme Court rejected this argument
without discussing this part of the testimony.
Menzies v. State
, 344 P.3d
581, 618 (Utah 2014). We review the reasonableness of the Utah Supreme
Court’s decision based on the arguments presented.
See Wellmon v. Colo.
Dep’t of Corrs.
,
In his post-conviction appeal, Mr. Menzies questioned identification of the car only once. That reference consisted of two sentences in a footnote in the statement of facts:
The police may use suggestive identification procedures relating to physical evidence to frame a suspect. Johnson v. Sublett , 63 F.3d 926, 932 (9th Cir. 1995)) . This happened here as there were only two or three older cars in the lot, and they did not look like [the car that had been loaned to Mr. Menzies].
Appellant’s Opening Br. at 11 n.16,
Menzies v. State
, No. 2 0120290-SC
(Utah Feb. 14, 2013). The Utah Supreme Court doesn’t typically consider
arguments when they appear only in a statement of facts or in a footnote.
*30
E.g.
,
Pohl, Inc. of Am. v. Webelhuth
,
But let’s assume, for the sake of argument, that Mr. Menzies
adequately developed this argument about identification of the car. In the
Utah Supreme Court, Mr. Menzies cited only a single Ninth Circuit
opinion. Even there, the Ninth Circuit had
rejected
a habeas petitioner’s
challenge to testimony involving identification of a car.
Johnson v. Sublett
,
• taken Mr. Larrabee to see vehicles parked in the police lot and • these vehicles included Mr. Menzies’s “beat up 1974 Chevy . . . with a distinguishing dent to the front hood.” Appellant’s Opening Br. at 11, Menzies v. State , No. 20120290- SC (Utah Feb. 14, 2013). Given the cursory legal and factual references, the Utah Supreme Court acted reasonably in summarily rejecting Mr. Menzies’s *31 challenge as to the car. See Wellmon v. Colo. Dep’t of Corrs. , 952 F.3d 1242, 1249 (10th Cir. 2020).
Mr. Menzies also challenges testimony identifying a coat that he had allegedly worn in the wooded area. For this challenge, Mr. Menzies points out that
• the police showed Mr. Larrabee only a single coat and • that coat didn’t match Mr. Larrabee’s earlier description. To resolve this challenge, we consider the reasonableness of the Utah Supreme Court’s “decision in light of the arguments the petitioner raised in the state court.” Id.
In the post- conviction appeal, Mr. Menzies’s argument consisted of this sentence, which lacked any citation to the record or to case law: “The jacket show ups were suggestive in that they did not require Larrabee . . . to select Appellant’s jacket from an array of similar jackets.” Appellant’s Opening Br. at 98, Menzies v. State , No. 20120290-SC (Utah Feb. 14, 2013). This sentence provided the Utah Supreme Court with no legal support for his challenge.
Nor was there a basis in the case law, for various circuits had held
that due process did not require displays of similar objects before allowing
testimony identifying an object.
See Johnson v. Sublett
,
We thus conclude that the Utah Supreme Court acted reasonably in rejecting Mr. Menzies’s theories of ineffective assistance as to Mr. Larrabee’s identification testimony. [6]
*33 5.4.4 Failure to Investigate the Account of Mr. Larrabee and His
Girlfriend Mr. Menzies also argues that his trial counsel should have interviewed Mr. Larrabee and his girlfriend. For this argument, Mr. Menzies relies on an affidavit from Mr. Larrabee, which stated two points:
1. On the day that I sighted the couple hiking at Storm Mountain, I went there to be alone with my girlfriend . . . . I was primarily interested in having private time with her, and I was focused on this amorous time I had spent with her. [She] and I were kissing on a picnic table after the time that the couple had disappeared from our view.
2. When the male hiker was walking in the direction of the parking lot by himself some time later (1) [ my girlfriend’s] back was towards the male hiker; (2) I was watching the male hiker to ensure that he had left the area so that I could enjoy being with [ my girlfriend] without her being concerned; (3) there were various shrubs and trees obstructing my line of vision when I was observing the male hiker head towards the parking lot; (4) the distance between myself and the male hiker as he was walking in the direction of the parking lot was between fifty and 100 yards; (5) because of the positions of myself and the male hiker, I could not see his face squarely as he headed in the direction of the parking lot; and (6) the only part of the hiker’s head that I could see was his back, and his right profile.
Post- Conviction R. at 12,293. According to Mr. Menzies, his trial attorney
should have elicited Mr. Larrabee’s focus on his girlfriend rather than the
nearby hiker. The Utah Supreme Court rejected this claim, concluding that
the attorney had not acted deficiently or prejudicially by failing to
interview Mr. Larrabee and his girlfriend.
Menzies v. State
,
For this conclusion, the court pointed to three considerations. First, Mr. Menzies’s counsel had cross-examined these witnesses and highlighted the weaknesses of their testimony. Id. Second, “Mr. Menzies d[id] not explain how the jury knowing that Mr. Larrabee’s attention was directed at [his girlfriend] for the purpose of having sexual relations would have changed the outcome of the case.” Id. (emphasis in original). Finally, the jury might have concluded that Mr. Larrabee’s concern over being seen with his girlfriend would have sharpened his attention to others in the area. Id.
In our appeal , Mr. Menzies challenges the reasonableness of the Utah Supreme Court’s determinations, arguing factually that Mr. Larrabee’s affidavit undermines his identification testimony. In our view, however, the court was making a legal conclusion (rather than a factual finding ) on the significance of the new information. See Wood v. Carpenter , 907 F.3d 1279, 1291 (10th Cir. 2018) (holding that an assessment of the strength of the evidence is a legal determination). [7]
The Utah Supreme Court acted reasonably in characterizing the entirety of Mr. Larrabee’s account. The affidavit states that he was *35 “watching the hiker to ensure that he had left the area.” Post-Conviction R. at 12,293. This statement could reasonably suggest that Mr. Larrabee was focused on the hiker, and this focus on the hiker might have triggered memory of details. So the Utah Supreme Court reasonably concluded that Mr. Menzies’s trial counsel hadn’t acted prejudicially in failing to interview Mr. Larrabee. [8] Failure to Challenge the Testimony of Walter Britton
5.5 Mr. Menzies’s final challenge to his trial counsel’s performance involves the testimony of Walter Britton, a fellow inmate at the jail. In the preliminary hearing, Mr. Britton testified that Mr. Menzies had
• admitted killing Mr s. Hunsaker and
• acknowledged a great thrill from cutting her throat. Mr. Britton refused to testify at trial, and the prosecution used his testimony from the preliminary hearing.
During the post- conviction proceedings, Mr. Menzies submitted an affidavit from Mr. Britton, which recanted some of his testimony about the confession. See Post-Conviction R. at 12,246. For example, Mr. Britton denied that Mr. Menzies had acknowledged a thrill from cutting Mr s. Hunsaker’s throat, adding: “It is possible that Mr. Menzies may not have *36 admitted to me that he had killed the victim. I believe that I may have told the police and the court that because I was scared, and facing a lot of prison time on the federal charges.” Id. Finally, Mr. Britto n stated that he was taking anxiety medication when he talked to Mr. Menzies: “I felt like I was in a fog . . . and for this additional reason, my statements . . . may have been inaccurate.” Id.
Mr. Menzies asserts that his trial counsel should have • discovered evidence of Mr. Britton’s mental illness and impeached him with it,
• discovered the benefits that Mr. Britton received from his testimony and impeached him with those benefits, and • interviewed an inmate ( George Benitez) , who stated that Mr. Britton had described a plan to fabricate testimony about Mr. Menzies in order to obtain a milder sentence.
5.5.1 The Utah Supreme Court’s Disposition of the Claim
The Utah Supreme Court rejected Mr. Menzies’s first two assertions.
For the assertion about Mr. Britton’s mental illness, the Utah
Supreme Court concluded that defense counsel had conducted a reasonable
investigation. The attorney had subpoenaed the federal court for mental
health records but received no responsive documents. In the Utah Supreme
Court’s view, the failure to take additional measures to impeach Mr.
Britton with mental health evidence was neither deficient nor prejudicial.
Menzies v. State,
For the assertion involving benefits from testifying, the court observed that Mr. Menzies’s trial counsel had used the relevant information to challenge Mr. Britton’s credibility: “[Trial] counsel highlighted the weakness of Mr. Britton’s testimony [at the preliminary hearing] by showing that he was eager to testify against Mr. Menzies when he thought he might benefit by doing so, but he stopped cooperating once he realized that benefit would not materialize.” Id. at 616.
The Utah Supreme Court did not address the claim involving Mr. Benitez’s account because Mr. Menzies had not raised that claim in the state proceedings. Mental- Health Evidence
5.5.2 Mr. Menzies argues that his attorney should have impeached Mr. Britton with evidence of his mental illness. The evidence appeared in (1) a letter by a psychiatrist, Dr. Breck Lebegue, who had interviewed Mr. Britton to address his competency to stand trial and (2) a report involving Mr. Britton’s competency. [9]
In the habeas appeal, Mr. Menzies relies primarily on Dr. Lebegue’s letter. Defense counsel had offered the letter into evidence. But the trial *38 court excluded the letter because it constituted inadmissible hearsay. Despite that ruling, defense counsel could have
• subpoenaed Dr. Lebegue to testify about the contents of his letter or
• cross-examined Mr. Britton with the letter. Defense counsel bypassed these opportunities, and Mr. Menzies criticizes this decision.
In Utah, the party seeking to admit evidence of mental illness must
“show that it actually affects the witness’s credibility.”
State v. Stewart
,
Mr. Menzies argues that Mr. Britton’s mental illness diminished his
credibility, focusing primarily on Dr. Lebegue’s letter. For this argument,
Mr. Menzies points out that the Utah Supreme Court never discussed the
failure to call Dr. Lebegue as a witness. In assessing this criticism, we
consider the arguments presented in the post- conviction appeal.
Se e
Wellmon v. Colo. Dep’t of Corrs.
,
There Mr. Menzies referred to this allegation in just a single sentence, stating that he’d alleged defense counsel’s failure to “subpoena Britton’s psychiatrist for trial.” Appellant’s Opening Br. at 86, Menzies v. *39 State , No. 20120290- SC (Utah Feb. 14, 2013). Mr. Menzies never told the Utah Supreme Court what Dr. Lebegue had said in his letter or would have testified. [10] Given that omission, the Utah Supreme Court acted reasonably in declining to discuss a claim involving his letter.
The letter itself provided little reason for defense counsel to call Dr. Lebegue as a witness. In the letter, Dr. Lebegue explained that he couldn’t “derive an opinion” on Mr. Britton’s mental state because the interview had lasted only 30 minutes. Given Dr. Lebegue’s inability to derive an opinion, why call him as a witness?
In his reply brief, Mr. Menzies states that Dr. Lebegue found that Mr. Britton could not rationally cooperate with his attorney. This statement misinterprets Dr. Lebegue’s letter. In the letter, Dr. Lebegue explains that he
• was asked to render an opinion on Mr. Britton’s ability “to understand the proceedings . . . or to assist in his defense,” and • could not “derive an opinion as to the defendant’s mental state.”
Post- Conviction R. at 11,538. Because Dr. Lebegue couldn’t derive an opinion, he recognized that Mr. Britton “may” lack the ability to cooperate with his attorney. Id. at 11,539.
Mr. Menzies omits the word “may”; Dr. Lebegue never expressed an opinion on Mr. Britton’s inability to assist his attorney. Given the qualifier “may,” a fair-minded jurist could reasonably conclude that this possibility wouldn’t affect Mr. Britton’s ability to accurately perceive, recall, and relate events.
Dr. Lebegue’s letter could thus support trial counsel’s decision to forgo testimony about Mr. Britton’s mental health. Rather than suggest affliction with a mental illness, trial counsel developed a strategy involving Mr. Britton’s effort to soften his own sentence. Advancing this strategy, Mr. Menzies’s attorney argued that Mr. Britton had accurately recalled the news reports about the murder and used them to fabricate Mr. Menzies’s confession in order to obtain favorable treatment. See Original Trial Tr. at 2671 (arguing that Mr. Britton “had access to all television reports concerning [Mrs.] Hunsaker”).
An argument about mental illness could have sunk this strategy by undermining Mr. Britton’s ability to understand his own self-interest. So the Utah Supreme Court appropriately concluded that defense counsel had acted reasonably in declining to challenge Mr. Britton’s testimony with evidence of his mental illness.
5.5.3 Benefits from Testimony
Mr. Menzies argues that his trial counsel should have obtained additional evidence of bias to enhance the cross-examination at his *41 preliminary hearing. The additional evidence concerned Mr. Britton’s cooperation with the prosecutors in Mr. Menzies’s case.
The Utah Supreme Court addressed this contention, concluding that the attorney’s investigation was not deficient or prejudicial. This conclusion reflected a reasonable application of Supreme Court precedent and the evidence because the attorney had
• elicited substantial testimony about Mr. Britton’s motive to help the prosecution and
• presented new trial evidence involving Mr. Britton’s benefit from helping the prosecution.
At the preliminary hearing, the attorney cross-examined Mr. Britton, who admitted convictions for bank robberies, stealing, and presenting a forged instrument. Mr. Britton also admitted that he was awaiting his sentencing in one of the robbery cases.
The prosecution countered by arguing that Mr. Britton had learned the grisly details from the murderer himself. To rebut that argument, Mr. Menzies’s attorney elicited Mr. Britton’s admission in the preliminary hearing that he had (1) heard news reports about the murder and (2) waited roughly a month before reporting the purported confession.
At trial, the attorney couldn’t question Mr. Britton further because he refused to testify again. So the attorney presented new testimony from the *42 lawyer who had represented Mr. Britton in one of the robbery cases. The lawyer testified that
• Mr. Britton had obtained a hearing on a motion to reduce his sentence and
• a prosecutor from the Menzies case had supported Mr. Britton’s motion by reporting to the judge that Mr. Britton had testified for the State. [11]
Given the cross- examination and new evidence at trial, the Utah Supreme Court cou ld reasonably decline to find a deficiency or prejudice in defense counsel’s method of challenging Mr. Britton’s testimony.
Mr. Menzies points out that his attorney didn’t confront Mr. Britton at the preliminary hearing with the prosecutor’s promise to report the cooperation to Mr. Britton’s sentencing judge. But a fair- minded jurist could regard the attorney’s approach as equally effective, for the jury ultimately learned of the arrangement from the new trial evidence. And the Utah Supreme Court could still reasonably conclude that using the statement for additional impeachment would not have dampened Mr. *43 Britton’s credibility. After all, Mr. Menzies’s counsel had already obtained admissions from Mr. Britton that he (1) was a felon awaiting sentencing for robbery and (2) had a prior conviction of forgery. Mr. Benitez’s Statement
5.5.4 Mr. Menzies argues that his counsel was deficient for failing to conduct a pretrial interview of Mr. George Benitez. Mr. Benitez was an inmate housed at the same jail. Mr. Menzies suggest s that an interview would have revealed Mr. Britton’s plan to testify about a fabricated confession. The district court concluded that the claim was procedurally barred. We agree.
5.5.4.1 Procedural Default
In a declaration filed in federal district court, Mr . Benitez admits that he falsely reported to law- enforcement officers that Mr. Menzies had confessed to killing a woman. See R. vol. VII, at 36–38. The declaration adds that Mr. Britton had told Mr. Benitez about a plan to obtain leniency by fabricating testimony implicating Mr. Menzies in a murder. Id. at 37. Mr. Benitez explains that he had given the false statement about a confession because he was young and scared and had been promised leniency in a pending case. Id. at 36.
In the state-court proceedings, Mr. Menzies did not present a claim involving trial counsel’s failure to interview Mr. Benitez. See R. vol. II, at 142 (stating that “[t]his claim was not raised in state court”). In the federal *44 habeas petition, Mr. Menzies acknowledged that the claim would be defaulted unless he could show cause and prejudice. See id .
Mr. Menzies sought to establish cause and prejudice based on the
ineffectiveness of his post-conviction attorney. According to the habeas
petition, Mr. Menzies’s post-conviction counsel “fell below the standards
of a minimally competent capital post-conviction attorney when he failed
to raise this meritorious claim.”
Id
. Given the ineffectiveness of post-
conviction counsel, Mr. Menzies relied on
Martinez v. Ryan
,
Applying
Martinez
, the federal district court held that the claim
involving Mr. Benitez was procedurally barred. The court rejected Mr.
Menzies’s argument that under
Martinez
, the ineffective assistance of his
post- conviction attorney could overcome the procedural bar: “[I]n
Davila
v. Davis
,
Mr. Menzies challenges the district court’s finding of a procedural
bar. For this challenge, he contends that the district court erred in applying
Davila v. Davis
,
As Mr. Menzies argues, the district court did misapply
Davila
. Mr.
Menzies claimed ineffective assistance of
trial
counsel, and
Davila
had
addressed “a different kind of defaulted claim—ineffective assistance of
appellate
counsel.”
Under Martinez , a petitioner may show cause to overcome a procedural default when
• a state requires assertion of an ineffective assistance of counsel claim in a collateral proceeding rather than on direct appeal and
• the petitioner has obtained ineffective assistance in the collateral proceeding.
See Finlayson v. State
,
For the first Martinez requirement, Mr. Menzies argues that he could not have brought an ineffective assistance claim on direct appeal in the Utah courts because
• Utah law did not allow him to raise these claims when he filed his opening brief on direct appeal and • Mr. Menzies’s trial counsel also represented him on direct appeal.
A Utah rule currently allows parties in a direct appeal to claim ineffective assistance of trial counsel. But Mr. Menzies had filed his opening appellate brief before this rule took e ffect. S ee Utah R. App. P. 23B (eff. Oct. 1, 1992). Prior to this rule, Mr. Menzies could not have raised these claims in the direct appeal. See State v. Litherland , 12 P.3d 92, 97– 98 (Utah 2000) (discussing the “pre- rule 23B regime”).
And Utah law
allows
post-conviction petitioners to assert new claims
of ineffective assistance of counsel if trial counsel has also represented the
petitioner in the direct appeal.
See Rudolph v. Galetka
,
But Mr. Menzies falters on the second Martinez requirement. His post- conviction attorney wasn’t ineffective by declining to challenge trial counsel’s failure to interview Mr. Benitez.
In considering the attorneys’ performance, we assess both parts of
the standard for ineffective assistance of counsel: deficient performance
*47
and prejudice.
Davis v. Sharp
,
For deficient performance, Mr. Menzies must show that his post-
conviction attorneys were ineffective in neglecting to raise a claim
involving the failure to interview Mr. Benitez .
See Strickland v.
Washington
,
We consider the reasonableness of the attorney’s judgment based on
Mr. Benitez’s statement, which reported Mr. Menzies’s confession in 1986.
Mr. Menzies acknowledges that the statement was mentioned in police
*48
reports.
See
R. vol. II, at 142 (“Police reports clearly indicated that
Benitez was interviewed by police about statements made by Mr.
Menzies.”). Mr. Menzies’s attorneys could reasonably exercise their
professional judgment by relying on Mr. Benitez’s account in the police
report.
See Williams v. Lemmon
,
Mr. Menzies has also neglected to show prejudice from his trial
counsel’s failure to interview Mr. Benitez. To establish prejudice, Mr.
Menzies must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. ”
Strickland v. Washington
,
Mr. Benitez waited 28 years before retracting the 1986 statement ,
[12]
and Mr. Menzies presents no reason to think that Mr. Benitez wou ld have
*49
retracted the statement 28 years earlier if trial counsel had conducted a
pretrial interview. And the case against Mr. Menzies included substantial
evidence other than statements made to fellow jail inmates.
See State v.
Menzies
,
We conclude that Mr. Menzies has not overcome the procedural bar from failing to raise the Benitez claim in state court. [13] of statutory restrictions on evidentiary hearings to new evidence of cause based on ineffectiveness of post- conviction counsel).
[13] The State observes that Mr. Menzies brought a separate claim for ineffectiveness of his counsel in the state post- conviction proceedings. See R. vol. II, at 281–310 (Second Amended Petition for Writ of Habeas Corpus, Claim 38). Mr. Menzies has no certificate of appealability on this claim.
But Mr. Menzies also challenges his trial counsel’s failure to interview Mr. Benitez. See id . at 142–44. In that claim, Mr. Menzies asserts that “[t]he ineffective assistance of Mr. Menzies’s state post- conviction counsel in failing to raise this claim constitutes cause for the default and resulted in prejudice to Mr. Menzies.” Id. at 142.
The district court granted a certificate of appealability on the entirety of Mr. Menzies’s claim for ineffective assistance of trial counsel, which included the challenges involving Mr. Benitez. See R. vol I, at 1307. So we have jurisdiction to consider Mr. Menzies’s challenges involving his post- conviction counsel’s failure to raise a claim on trial counsel’s decision not to interview Mr. Benitez.
5.5.4.2 Merits
The claim in volving Mr. Benitez’s declaration also fails on the merits.
In addressing the issue, we lack a discussion of the merits not only in
district court but also in the Utah Supreme Court. Because the Utah
Supreme Court did not decide this claim on the merits, Mr. Menzies need
not show a failure to reasonably apply Supreme Court precedent.
See Cook
v. McCune
,
Mr. Menzies bases this habeas claim on a declaration that Mr. Benitez signed roughly 28 years after the trial. In the declaration, Mr. Benitez said that Mr. Britton had acknowledged a plan to fabricate Mr. Menzies’s confession. In the same declaration, however, Mr. Benitez acknowledged that before the trial, he too had told the police that he’d heard Mr. Menzies confess. In the declaration, Mr. Benitez explained that
• he had talked to law- enforcement officers at the encouragement of Mr. Britton and
• Mr. Benitez had been young and scared and had told law- enforcement officers that he heard Mr. Menzies confess to the murder .
Though Mr. Benitez recanted decades later, he does not suggest that he would have told a different story to defense counsel before the trial. After all, Mr. Benitez was young and scared before the trial and would have had to admit that he and Mr. Britton had lied to law- enforcement officers. Given Mr. Britton’s own incriminating report to l aw-enforcement officers, we conclude that Mr. Menzies did not show by a preponderance of the evidence that the failure to interview Mr. Benitez had been either deficient or prejudicial. We thus reject this claim of ineffective assistance.
* * * In summary, we reject the claims of ineffective assistance of trial counsel.
6. The trial court’s instruction on reasonable doubt constituted a
reasonable application of Supreme Court precedent and conformed to the Constitution.
Mr. Menzies also challenges the jury instruction on reasonable doubt. For this challenge, Mr. Menzies focuses on the last paragraph of the instruction:
If after an impartial consideration and comparison of all the evidence in the case you can candidly say that you are not satisfied of the defendant’s guilt, you have a reasonable doubt. But if after such impartial consideration and comparison of all the evidence you can truthfully say that you have an abiding *52 conviction of the defendant’s guilt such as you will be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt. A reasonable doubt must be a real, substantial doubt and not one that is merely possible or imaginary.
Trial ROA Dkt. No. 857.
Mr. Menzies claims that this instruction improperly dampened the prosecution’s burden of proving the crime beyond a reasonable doubt, pointing to the statements that
• reasonable doubt must be “real” and “substantial” and “not one that is merely possible or imaginary” and • reasonable doubt is lacking if one has “an abiding conviction of the defendant’s guilt such as [the jury] will be willing to act upon in the more weighty and important matters relating to [the jury’s] own affairs.”
Id. Reasonableness of the Utah Supreme Court’s Decision
6.1
The Utah Supreme Court summarily rejected these claims.
State v.
Menzies
,
6.1.1
Mr. Menzies argues that the jury instruction incorrectly distinguished
between doubts that are substantial and merely possible or imaginary. For
this argument, Mr. Menzies relies on
Cage v. Louisiana
,
After
Cage
and
Monk
, however, the Supreme Court addressed a
similar issue in
Victor v. Nebraska
,
The Supreme Court commented that the reference to “substantial doubt” was “ somewhat problematic,” but viewed the rest of the instruction as adequate because it clarified that a doubt was insubstantial only if it involved a “mere possibility, ” “bare imagination, ” or “fanciful conjecture.” Id. at 19–20. That clarification hadn’t existed in Cage ’s jury instruction. Id. at 20. In Victor , the instruction explained that “‘substantial’ is used in the sense of the existence rather than magnitude of the doubt.” Id. So the Victor jury had been properly instructed. Id. at 20–21.
Under Victor , the Utah Supreme Court reasonably rejected Mr. Menzies’s challenge to the instruction’s use of the phrase “a real, substantial doubt.” Like the jury instruction in Victor , the jury instruction at Mr. Menzies’s trial contrasted a “real, substantial doubt” to a doubt “that [was] merely possible or imaginary.” Trial ROA Dkt. No. 857. Given the similarity between this language and the language upheld in Victor , the Utah Supreme Court could reasonably consider Mr. Menzies’s jury instruction as permissible under Victor .
We addressed a virtually identical challenge in Tillman v. Cook , 215 F.3d 1116 (10th Cir. 2000). There the trial court issued the same instruction, prompting the defendant to argue that the court had unconstitutionally equated reasonable doubt with a real, substantial doubt. *55 Id. at 1123–24. Like Mr. Menzies, the defendant in Tillman relied on Cage and Monk . Id. at 1121. We rejected the defendant’s argument, distinguishing Cage and Monk in light of the instruction’s contrast with doubt that’s merely possible or imaginary:
Like the instruction in Victor , but unlike the Cage and Monk instructions, Mr. Tillman’s instruction distinguishes “a real, substantial doubt” from “one that is merely possible or imaginary.” In Cage , the Court was “concerned that the jury would interpret the term ‘substantial doubt’ in parallel with the preceding reference to ‘grave uncertainty,’ leading to an overstatement of the doubt necessary to acquit.” Not only is the reference to “grave uncertainty” absent from Mr. Tillman’s instruction, but the juxtaposition with “merely possible or imaginary” “makes clear that ‘substantial’ is used in the sense of existence rather than magnitude of the doubt, so the same concern is not present.” Thus, although far from exemplary, the use of the substantial doubt language was not error.
Id.
at 1125–26 (citations omitted);
accord Johnson v. Alabama
, 256 F.3d
1156, 1193– 94 (11th Cir. 2001) (holding that a jury instruction did not
unconstitutionally diminish the standard of reasonable doubt because it
contrasted an “actual and substantial” doubt with a doubt that was merely
“imaginative or speculative”). We can’t question the reasonableness of the
Utah Supreme Court’s result given our own opinion that the same language
on “substantial doubt” hadn’t constituted an error.
See Mollett v. Mullin
,
6.1.2
The Utah Supreme Court also acted reasonably in upholding the jury
instruction despite the language on a willingness to act. We must assess the
reasonableness of the state supreme court’s result based on the arguments
presented in state court.
Wellmon v. Colo. Dep’t of Corrs
,
In his direct appeal to the Utah Supreme Court, Mr. Menzies
challenged the willingness- to-act language by relying on a concurrence by
one of the state supreme court justices.
See
Appellant’s Opening Br. at 85 ,
State v. Menzies
, No. 880161 (Utah Sept. 14, 1992) (citing
State v.
Johnson
,
We too have addressed the same language in the same jury
instruction.
Tillman v. Cook
,
Granted, the United States Supreme Court has criticized the language
on a willingness to act. In
Holland v. United States
, the Supreme Court
concluded that the trial court should have explained reasonable doubt “in
terms of the kind of doubt that would make a person hesitate to act, rather
than the kind on which he would be willing to act.”
Even if Mr. Menzies could show that the Utah Supreme Court’s
decision was contrary to or an unreasonable application of United States
Supreme Court precedent,
see
28 U.S.C. § 2254(d)(1), he still could not
obtain habeas relief.
See Fry v. Pliler
,
Our court has rejected virtually identical challenges to the same
instruction.
Tillman v. Cook
,
Given our precedent, we would need to reject Mr. Menzies’s challenge on the merits even if the state appellate court had unreasonably applied Supreme Court precedent.
7. The Utah Supreme Court reasonably rejected Mr. Menzies’s
claim of ineffective assistance of counsel during sentencing. Mr. Menzies also complains of his attorneys’ handling of the sentencing phase.
The Utah Supreme Court concluded that Mr. Menzies had not
justified habeas relief,
Menzies v. State
,
7.1 In the sentencing phase, the prosecution presented evidence of Mr. Menzies’s criminal record, including convictions for three robberies and an escape. In presenting this evidence, the prosecution argued that Mr. Menzies posed a continuing threat of violence and couldn’t be rehabilitated. Mr. Menzies countered with testimony from a clinical psychologist, an educational psychologist, and a social worker.
The clinical psychologist testified that Mr. Menzies’s boyhood had entailed extensive abuse and neglect. In the clinical psychologist’s view, Mr. Menzies suffered from personality disorders but could still change his behavior. The educational psychologist concluded that Mr. Menzies *60 suffered from mental deficits but might be able to function normally with proper treatment. The social worker testified that during a period of imprisonment before the murder, Mr. Menzies had taken pride in a prison job and had not tried to escape.
Despite the presentation of this evidence, Mr. Menzies complains of
his counsel’s performance in the sentencing phase. Because Mr. Menzies
faced the possibility of the death penalty, the sentencing court considered
the evidence on his background and character.
See California v. Brown
,
7.2 Mr. Menzies maintains that his counsel was deficient in • waiting until the end of the guilt phase to start investigating mitigation,
• failing to conduct a reasonable investigation of mitigating evidence, and
• forgoing evidence of organic brain damage.
The Attorney’s Duty to Investigate 7.3
Attorneys act deficiently when they fail to conduct a “thorough
investigation—in particular, of mental health evidence—in preparation for
*61
the sentencing phase of a capital trial.”
Hooks v. Workman
,
7.4 Mr. Menzies asks us to consider evidence that he did not present in Utah state court. This evidence reveals “a multi- generational history of mental illness, substance abuse, and violent physical abuse.” Appellant’s Opening Br. at 50– 51. That history includes
• his father’s and stepfather’s abuse of his mother and sister and • his family’s extreme neglect of his needs.
The federal district court declined to consider this new evidence, limiting
review to the record presented in state court. R. vol. I, at 1276–77;
see
Cullen v. Pinholster
,
Mr. Menzies had urged cause for the procedural default from the ineffectiveness of his post-conviction attorneys. The federal district court rejected this argument, reasoning that “attorney error committed during the *62 course of state postconviction proceedings cannot supply cause to excuse a procedural default that occur[ red] in those proceedings.” R. vol. I, at 1300.
In our appeal, Mr. Menzies challenges the district court’s application
of a procedural bar. For this challenge, he relies on the Supreme Court’s
opinions in
Martinez v. Ryan
,
• he had needed to raise his claim of ineffective assistance of counsel through a collateral proceeding rather than the direct appeal and
• he had obtained ineffective assistance of counsel in the collateral proceeding.
We review de novo Mr. Menzies’s legal argument challenging the
application of a procedural bar.
Banks v. Workman
,
We have elsewhere assumed that Mr. Menzies has established the first requirement to overcome the procedural bar (that Utah law required him to make this claim of ineffective assistance in a collateral proceeding rather than in the direct appeal) . See p. 46, above. [15] But Mr. Menzies has *63 not satisfied the second requirement, proof of ineffective assistance of counsel in the state post -conviction proceeding.
Mr. Menzies argues that his counsel in the collateral proceeding had
a conflict of interest. In order to establish a conflict of interest, Mr.
Menzies needed to show “a division of loyalties that [had] affected
counsel’s performance.”
Mickens v. Taylor
,
Mr. Menzies has not shown a prejudicial division of loyalties. He bases his conflict of interest on the allegation that his post-conviction attorneys had charged too much money. Appellant’s Opening Br. at 49. But Mr. Menzies has not explained how the excessive attorney fees would have affected the attorneys’ performance or compromised their loyalty.
Mr. Menzies also contends that his post- conviction attorneys failed to conduct a reasonable investigation on mitigation. But Mr. Menzies lacks support for this contention. His post- conviction attorneys presented the state courts with three new items:
1. an expert opinion from a psychologist, which had attributed Mr. Menzies’s personality disorders to a “brutal childhood ,” see Post-Conviction R. at 13, 618, 13,610–20, 2. an expert opinion from a neuropsychologist, who had diagnosed Mr. Menzies with “neurological/psychiatric conditions” that had likely impaired his capacity to form intent at the time of the murder, see id. at 12,473–81, and
3. an affidavit from a capital mitigation specialist, who had opined on many new details involving abuse and neglect, see id. at 10,716–20, 15,452.
Given the mitigation evidence gathered and submitted in the state post- conviction proceedings, we conclude that Mr. Menzies’s post- conviction attorneys were not deficient. Because Mr. Menzies hasn’t shown cause to overcome the procedural bar, we limit our review to the evidence presented in state court. See pp. 61–62, above. Delayed Investigation of the Mitigating Evidence
7.5 Mr. Menzies complains that his trial counsel shouldn’t have waited until after the guilt phase to start investigating mitigation evidence. Despite this complaint, Mr. Menzies acknowledges that he had met with one of the trial experts (a psychologist) roughly fourteen months before the trial. But, Mr. Menzies adds, both his trial counsel and the psychologist waited until one or two days before the sentencing to meet with a sister and an aunt, the only relatives to testify for Mr. Menzies .
The Utah Supreme Court rejected Mr. Menzies’s challenge, reasoning
that “[e]ven if it is true that counsel did not begin the mitigation
investigation until after the guilt phase, . . . Mr. Menzies failed to
demonstrate how this [would have] prejudiced his case.”
Menzies v. State
,
In our view, the Utah Supreme Court reasonably rejected Mr. Menzies’s complaint that his attorneys had taken too long to start investigating mitigation evidence. Mr. Menzies had complained that his counsel had waited to interview the aunt and sister until right before the start of the sentencing stage. Regardless of the timing, however, the aunt and sister ultimately testified about “numerous ‘gruesome’ details concerning Mr. Menzies’s abuse and neglect.” Menzies v. State , 344 P.3d at 62 7. For example, the sister described physical abuse by two stepfathers. Original Trial Tr. at 2910– 12, 2915–16. And Mr. Menzies’s aunt described neglect by Mr. Menzies’s mother. Id. at 2950– 51.
Mr. Menzies presents no evidence suggesting that an earlier investigation would have provided qualitatively different or additional evidence of mitigation. A fair- minded jurist could thus conclude that the Utah Supreme Court had acted reasonably in finding a failure to show prejudice. Failure to Investigate Other Mitigating Evidence
7.6 Mr. Menzies claims that his attorney should have investigated potential sexual abuse by his father and stepparents. The Utah Supreme Court rejected these claims.
For the allegation of sexual abuse, the attorney presented no
corroboration by Mr. Menzies’s sister, his aunt, or his three mental-health
experts. But in state post-conviction proceedings, Mr. Menzies presented
*66
an affidavit from a mitigation specialist , stating that “there was some
information provided that indicated [Mr. Menzies]
may
have been molested
by his stepmother.”
Menzies v. State
,
Mr. Menzies also complains that his attorney didn’t try to find the father or stepfathers. The Utah Supreme Court noted that (1) the father had not been seen in twelve years, (2) Mr. Menzies had supplied no information suggesting that the stepfathers could have been available to testify, (3) the aunt and sister had testified for Mr. Menzies, and (4) there was no sign that the father or stepfathers could have provided additional relevant information. Id. at 628.
Mr. Menzies presents no basis to question the reasonableness of the Utah Supreme Court’s decision. He says that sexual abuse is often surrounded by secrecy and manipulation, but he does not say what the attorney failed to explore. And even if the attorney should have investigated further, Mr. Menzies does not show how more information about sexual abuse would have made a difference at the sentencing phase. Even now, Mr. Menzies presents no evidence of actual sexual abuse.
For similar reasons, Mr. Menzies hasn’t shown that his counsel failed to learn about the other relatives that would have affected the sentencing. The Utah Supreme Court reasonably concluded that Mr. Menzies was just *67 speculating about the possibility of additional mitigating evidence from family members. This conclusion was at least reasonable based on the state-court record.
Mr. Menzies also complains of a failure to investigate his family
history. The Utah Supreme Court rejected this claim, reasoning that the
defense attorney had presented testimony from experts and family members
about Mr. Menzies’s social history, his history of abuse, his mental health,
his educational background, his incarcerations, his employment, and his
potential for rehabilitation.
Menzies v. State
,
7.7 Mr. Menzies also claims that his trial counsel should have presented evidence of organic brain damage. For this claim, Mr. Menzies flags a notation made during his confinement as a juvenile. This notation says that Mr. Menzies “functions below his ability level and was found to have minimal brain damage.” Appellant’s Opening Br. at 63 (citing Penalty Phase, State Ex. 8, at 91).
In Mr. Menzies’s view, this notation should have alerted trial counsel to the possibility of organic brain damage. In support, Mr. Menzies points *68 to a neuropsyc hological evaluation submitted in the state post-conviction proceedings.
The Utah Supreme Court rejected Mr. Menzies’s claim, reasoning that
• the experts testifying at the sentencing had “found no supporting evidence in their inquiries” and • such evidence could have undermined Mr. Menzies’s theory of his potential for rehabilitation.
Menzies v. State
,
Mr. Menzies hasn’t shown that the Utah Supreme Court acted unreasonably in concluding that he had failed to show a deficiency in the representation. Though Mr. Menzies points to the possibility of an organic brain injury, he hasn’t pointed to any evidence of an organic injury that trial counsel failed to present.
The neuropsychological evaluation submitted in the post- conviction proceedings refers only to a notation of “organic brain syndrome” and “minimal brain dysfunction syndrome” as a juvenile. See Post- Conviction R. at 11, 502. But this evidence was presented at sentencing: A clinical psychologist testified about the notation, and the trial court acknowledged the notation when imposing the sentence. Given the discussion of the notation by the clinical psychologist and the trial court, the *69 neuropsychological evaluation doesn’t show a deficiency from the attorney’s failure to present other evidence of organic brain injury.
Nor has Mr. Menzies shown a flaw in the Utah Supreme Court ’s analysis of prejudice. Mr. Menzies complain s that his trial attorney should have investigated further. But Mr. Menzies doesn’t suggest that he’s ever had a diagnosis of organic brain injury.
Without such a diagnosis, Mr. Menzies’s trial counsel reasonably
argued that Mr. Menzies could change his behavior . That argument would
have been difficult to maintain if the sentencing judge had attributed Mr.
Menzies’s violence to an organic brain injury .
See Gilson v. Sirmons
, 520
F.3d 1196, 1248 (10th Cir. 2008) (observing that evidence of organic brain
damage may undermine mitigation arguments by suggesting that the
defendant is dangerous and will remain a threat to others);
see also Grant
v. Royal
,
* * * We conclude that the Utah Supreme Court acted reasonably in rejecting Mr. Menzies’s claims of ineffective assistance in the sentencing phase.
8. The Utah Supreme Court acted reasonably in rejecting Mr.
Menzies’s challenges to the admissibility of documents from his prison file.
Mr. Menzies also challenges the introduction of his prison file during the sentencing phrase. The Utah Supreme Court acted reasonably in rejecting these challenges.
8.1 The Utah Supreme Court reasonably concluded that introduction
of mental-health evaluations had not violated the Fifth Amendment.
Mr. Menzies challenges the introduction of evaluations from March 1973, December 1975, September 1976, July 1979, and September 1980. [16] In these evaluations, mental-health professionals had
• summarized Mr. Menzies’s family history and record of criminal conduct and
• presented diagnoses, prognoses, and recommendations for treatment.
Mr. Menzies complains that the State used these records even though the mental- health professional s hadn’t provided Miranda warnings. [17]
In the trial court, Mr. Menzies did not present a
Miranda
challenge.
So the Utah Supreme Court would ordinarily confine its review to the
plain-error standard.
See State v. Holgate
,
[17] The State argues that Mr. Menzies (1) framed the issue beyond the certificate of appealability and (2) failed to identify specific statements that should have been excluded.
We disagree with the State’s characterization of Mr. Menzies’s claim. He challenged the introduction of the entire prison file, but he also identified specific evaluations that should have been excluded. See R. vol. II, at 179–80 (Second Amended Petition for a Writ of Habeas Corpus, Claim 18). On appeal, Mr. Menzies challenges the introduction of evaluations within a claim encompassed in the district court’s certificate of appealability. See Appellant’s Opening Br. at 67.
Mr. Menzies does not identify specific statements; he instead challenges the use of all the evaluations based on a failure to give him Miranda warnings. Mr. Menzies made that challenge in his habeas petition, and the district court’s certificate of appealability encompasses this challenge.
to be without merit”). So we can’t tell whether the Utah Supreme Court reviewed the issue under the plain- error standard.
Without an explanation from the Utah Supreme Court, we give Mr.
Menzies the benefit of the doubt, assuming for the sake of argument that
the Utah Supreme Court treated the claim as preserved. With this
assumption, we determine the reasonableness of the Utah Supreme Court’s
decision.
See Douglass v. Workman
,
For his challenge, Mr. Menzies relies on Estelle v. Smith , 451 U.S. 454 (1981). In Estelle , the trial court ordered a psychiatric examination to evaluate competency. Id. at 456– 57. This psychiatrist not only evaluated the defendant’s competency but also testified for the State in the sentencing phase, opining that the defendant was “a very severe sociopath” who lacked remorse and would continue his violent behavior. Id. at 459– 60. In forming these opinions, the psychiatrist relied on the defendant ’s statements during the competency evaluation. Id. at 464– 65.
The United States Supreme Court held that the introduction of the psychiatrist’s testimony had violated the Fifth Amendment. Id. at 468. For this holding, the Court reasoned that the defendant had obtained “no *73 indication” that the State would use the compulsory examination to gather evidence bearing on the possibility of a death sentence. Id. at 467. Without Miranda warnings, the United States Supreme Court concluded that the trial court should have excluded the defendant’s statements to the psychiatrist. Id. at 469.
Applying Estelle , the Utah Supreme Court acted reasonably in rejecting this claim because
• Estelle could be distinguished,
• the Supreme Court’s precedents would not require consideration of the evaluations as custodial interrogations, and • the Supreme Court’s holdings would not require application of the exclusionary rule in the sentencing phase.
The Utah Supreme Court could reasonably distinguish
Estelle
based
on
Penry v. Johnson
,
• Estelle had limited its holding to “the ‘distinct circumstances’ presented there” and
• the Supreme Court had “never extended
Estelle
’s Fifth
Amendment holding beyond its particular facts.”
Id.
at 795 (quoting
Estelle
,
The Penry Court interpreted Estelle to consider use of statements when the court required a psychiatric examination involving pending charges of a capital crime. Id. When the psychiatrist elicited the incriminating information in Estelle , “it was [] clear that his future dangerousness would be a specific issue at sentencing.” Id . In Penry , however, the psychiatric examination had preceded the murder. Id.
This distinction could reasonably apply here too because Mr. Menzies’s evaluations had preceded the murder charge. So the mental- health professionals conducting the evaluations did not elicit statements for the prosecution to use.
The Utah Supreme Court could reasonably rely not only on this
difference with
Estelle
but also on doubt as to the existence of a custodial
interrogation.
Miranda
warnings are required only for custodial
interrogations.
See Howes v. Fields
,
The Utah Supreme Court could thus reasonably conclude that Mr.
Menzies had failed to identify circumstances creating a danger of coercion.
For example, the court could base this conclusion on the Fifth Circuit’s
opinion in
Cobble v. Quarterman
,
• a psychiatric consultation did not constitute a custodial interrogation because “[the petitioner’s] statements were simply for the purpose of medical and psychiatric diagnosis” and
• “[u]nlike the defendant in
Estelle v. Smith
, [the petitioner] was
not ‘faced with a phase of the adversary system,’ but was ‘in
the presence of [a] perso[n] acting solely in his interest .’”
Id.
at 440 (fourth and fifth alterations in original) (quoting
Estelle v.
Smith
,
Even if the interview had been custodial, the state appellate court
could have reasonably declined to apply the exclusionary rule. The United
States Supreme Court has not addressed the applicability of the
exclusionary rule in the sentencing phase, but we’ve held that the rule
doesn’t apply there.
See United States v. Hinson
,
In conclusion, Mr. Menzies has not shown a failure to reasonably apply Miranda . Though Mr. Menzies relies on Estelle , Penry ’s distinctions with Estelle could apply here too. And the Supreme Court’s holdings wouldn’t require (1) consideration of the mental-health evaluations as custodial or (2) application of the exclusionary rule in the sentencing phase.
8.2 Introduction of Mr. Menzies’s prison file did not deny the
right to confrontation, constitute a denial of due process, or entail cruel and unusual punishment.
Mr. Menzies also claims that the trial court committed constitutional violations in allowing the introduction of his prison file, which contained social histories, incident reports, and information about disciplinary hearings.
8.2.1 Confrontation Clause
Mr. Menzies relies in part on the Sixth Amendment’s Confrontation
Clause. In state court, however, Mr. Menzies conceded that the United
States Supreme Court had “not directly held that the right to confrontation
applies to the penalty phase of a capital trial.” Appellant’s Opening Br. at
126,
State v Menzies
, No. 880161 (Utah Sept. 14, 1992). Without
controlling precedent from the United States S upreme Court, our court and
other circuit courts have declined to apply the Confrontation Clause in the
sentencing phase.
See Carter v. Bigelow
,
*79 8.2.2 Due Process
Mr. Menzies also claims a denial of due process because the prison
records lacked sufficient indicia of reliability. For this claim, Mr. Menzies
relies on
Gardner v. Florida
,
For example, Gardner addressed reliance on a part of the presentence report that had been withheld from the defendant and his attorney. 430 U.S. at 353–54 (plurality opinion). Though the State had withheld part of the report, the trial judge imposed a death sentence partly in reliance on the contents. Id. at 353. The United States Supreme Court found a denial of due process because the trial court had imposed a death sentence based partly on information withheld from the defendant. Id. at 362.
Townsend
addressed reliance on mistaken assumptions.
Unlike the defendants in
Gardner
and
Townsend
, Mr. Menzies had a
chance to review the documents used in the sentencing phase. And he
points to nothing false or misleading. Given Mr. Menzies’s opportunity to
review the documents and his failure to identify anything false or
misleading, the Utah Supreme Court could reasonably conclude that
*80
introduction of the documents hadn’t denied due process to Mr. Menzies.
See United States v. Lewis
,
8.2.3 Cruel and Unusual Punishment
Finally, Mr. Menzies characterizes the introduction of these documents as cruel and unusual punishment. But he cites no Supreme Court authority for this claim. Given the lack of supporting precedent from the United States Supreme Court, the Utah Supreme Court could reasonably conclude that introduction of the documents hadn’t violated Mr. Menzies’s protection from cruel and unusual punishment.
*81 9. The Utah Supreme Court reasonably concluded that the trial
court had not violated the Constitution by relying on uncharged aggravating circumstances.
Mr. Menzies claims violation of the Eighth and Fourteenth Amendments because the trial court relied on three uncharged aggravating circumstances: [19]
1. The murder was committed “in an especially heinous, atrocious, cruel manner demonstrated by serious bodily injury to the victim before death. ” Utah Stat. Ann. § 76-5-202(1)(q) (1988 ).
2. The murder “was committed” for “pecuniary or other personal gain. ” Utah Stat. Ann. § 76-5-202( 1)(f) (1988 ).
3. The murder “was committed for the purpose of preventing a witness from testifying. ” Utah Stat. Ann. § 76-5-202(1)(i) (1988 ).
Original Trial Tr. at 3249– 50. Mr. Menzies claims that
• these aggravating circumstances hadn’t been charged, supported, or found by the jury, and
• the Utah Supreme Court failed to discuss the prejudice from the trial court’s erroneous consideration of the aggravating circumstances involving pecuniary gain and prevention of testimony.
In our view, the Utah Supreme Court acted reasonably in determining the facts and in applying clearly established federal law. Though the court *82 omitted any discussion about two of the aggravating circumstances, the omission didn’t violate Mr. Menzies’s constitutional rights.
9.1 Utah law allowed the prosecution to allege additional
aggravating circumstances at sentencing.
We must consider Utah’s uses of aggravating circumstances. Under
applicable Utah law, the death penalty could be imposed only after a
conviction of a homicide requiring proof of at least one aggravating
circumstance identified in a statutory list.
See State v. Tillman
, 750 P.2d
546, 569– 70 & n.90 (Utah 1987) (discussing Utah Code Ann. § 76-5-
202(1), the Utah capital murder statute in effect at the time of the murder
and the trial). “Utah’s statutory scheme incorporate[d] the aggravating
circumstances into the definition of the first degree murder offense,
thereby initially narrowing the pool of defendants eligible for the death
penalty in the guilt phase, rather than in the penalty phase, of the trial.”
Id.
at 570. After conviction of a murder involving an aggravating
circumstance, the trial court needed to conduct a sentencing hearing “to
take evidence of additional aggravating factors and any mitigating factors
the defendant may be able to prove.”
State v. Wood
,
At the sentencing hearing, the court could consider various evidentiary items:
[E]vidence may be presented as to any matter the court deems relevant to sentence, including but not limited to the nature and *83 circumstances of the crime, the defendant’ s character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty. Any evidence the court deems to have probative force may be received regardless of its admissibility under the exclusionary rules of evidence. The state’ s attorney and the defendant shall be permitted to present argument for or against sentence of death. Aggravating circumstances shall include those as outlined in 76- 5-202.
Utah Stat. Ann. § 76-3-207(1) (1982) (emphasis added). The “aggravating circumstances . . . as outlined in 76-5-202” included
• the commission of murder “in an especially heinous, atrocious, cruel manner,” Utah Stat. Ann. § 76-5-202(1)(q) (1988), • the commission of murder to prevent a witness from testifying, Utah Stat. Ann. § 76-5-202(1)(i) (1988), and • the commission of murder for personal gain , Utah Stat. Ann. § 76-5-202(1)(f) (1988).
The trial court followed the statutory procedure. In the guilt stage, the jury found not only the commission of murder but also the presence of an aggravating circumstance: commission of murder while “engaged in the commission of, attempt to commit, or flight after committing or attempting to commit robbery and aggravated kidnapping.” See Original Trial Tr. at 2693 (jury verdict); see also Utah Stat. Ann. § 76-5-202(1)(d) (1988) (setting forth this aggravating circumstance). Then, after Mr. Menzies waived his right to a jury trial, the trial court conducted a sentencing hearing and obtained additional evidence bearing on the sentence.
In the sentencing phase, the prosecution urged consideration of other aggravating circumstances bearing on selection of the sentence :
• “the method and manner of death” (strangling and cutting Mrs. Hunsaker’s throat with a sharp object), • the commission of murder while perpetrating underlying felonies (robbery and aggravated kidnapping) , • the commission of murder to keep Mrs. Hunsaker from testifying,
• the planning of the murder, and
• the lack of remorse. Original Trial Tr. at 2721– 23. 9.2 Mr. Menzies obtained adequate notice of the aggravating
circumstances bearing on the sentence.
In the direct appeal, Mr. Menzies argued that he lacked notice that
the State would rely on other aggravating circumstances during the
sentencing phase. Appellant’s Opening Br. at 167– 70,
State v. Menzies,
No. 880161 (Utah Sept. 14, 1992) . The Utah Supreme Court rejected this
argument.
See State v. Menzies
,
In light of the arguments that Mr. Menzies presented, the state
appellate court acted reasonably in finding notice of additional aggravating
circumstances. Mr. Menzies had cited only one opinion by the United
States Supreme Court. Appellant’s Opening Br. at 168–69,
State v.
Menzies,
No. 880161 (Utah Sept. 14, 1992). That opinion involved a
defendant who had received no notice of a possible death sentence.
See Lankford v. Idaho
, 500 U.S. 110, 127 (1991) (explaining that the
“[p]etitioner’ s lack of adequate notice that the judge was contemplating the
imposition of the death sentence created an impermissible risk that the
adversary process may have malfunctioned in this case”). In Mr. Menzies’s
case, however, the State had charged capital homicide and made pretrial
allegations of aggravating circumstances identified in the state statute.
See
State v. Menzies
,
We addressed the sufficiency of statutory notice in
Andrews v.
Shulsen
,
Given our own approach to notice, we can hardly view the Utah
Supreme Court’s identical approach as unreasonable.
See Mollett v. Mullin
,
Confronting our precedent, Mr. Menzies argues that *87 • Andrews relied on an out-of-circuit opinion later overruled and • the Utah statute’s narrowing of the class of persons eligible for the death penalty did not provide adequate notice.
We reject both arguments.
First, Mr. Menzies observes that our
Andrews
opinion cited
Spinkellink v. Wainwright
,
Mr. Menzies also argues that the state statutory scheme doesn’t
adequately narrow the class of persons eligible for the death penalty. This
argument conflates two distinct phases of Utah’s statutory system:
eligibility and selection. A defendant becomes eligible for the death
penalty only if the jury finds at least one aggravating circumstance. Utah
Code Ann. § 76-5-202(1) (1978 & Supp. 1987). If the jury finds at least
one aggravating circumstance, the trial advances to the selection phase,
*88
where the sentencer can choose the death penalty only upon a finding that
the total aggravation outweighs the total mitigation.
State v. Wood,
648
P.2d 71, 83–84 (Utah 1982). The United States Supreme Court has said that
the narrowing function takes place when determining eligibility, not
selection.
Zant v. Stephens
,
At the eligibility phase, the prosecution charge d an aggravating
circumstance: murder in the course of committing robbery and aggravated
kidnapping. The State thus supplied notice of the aggravating circumstance
to narrow the class of defendants eligible for the death sentence. The
United States Supreme Court has never required further notice at the
selection stage, so the Utah Supreme Court had no “clearly established
federal law” to apply.
See Littlejohn v. Trammell
,
9.3 The prosecution did not need to prove each aggravating
circumstance beyond a reasonable doubt.
Mr. Menzies also asserts that the jury never found three of the
aggravating circumstances: (1) a heinous, atrocious and cruel murder, (2) a
murder to prevent a witness from testifying, and (3) a murder for pecuniary
gain. This assertion consists of a single sentence within the discussion
involving inadequate notice of aggravating circumstances. This sentence
does not adequately develop a distinct appellate challenge.
See Thompson
R2- J Sch. Dist. v. Luke P., ex rel. Jeff P.
,
Even if Mr. Menzies had developed this challenge, it would appear meritless. The jury found (1) Mr. Menzies guilty of first-degree murder and (2) his commission of murder while “engaged in the commission of, attempt to commit, or flight after committing or attempting to commit robbery and aggravated kidnapping.” Original Trial Tr. at 2693. At the selection phase, the sentencing judge didn’t need to make findings on each aggravating circumstance. Instead, the factfinder had to
• compare the totality of aggravating factors to the totality of the mitigating factors and
• determine whether a death sentence was warranted.
State v. Wood,
9.4 The Utah Supreme Court didn’t violate any constitutional
rights by omitting discussion of two aggravating circumstances from the analysis of harmless error. Mr. Menzies points out that when the Utah Supreme Court addressed harmless error, there was no discussion of two disputed aggravating circumstances (commission of murder for pecuniary gain and prevention of testimony). But as just discussed, the trial court didn’t err by considering *91 these aggravating circumstances. So the Utah Supreme Court had no reason to discuss harmlessness for these aggravating circumstances.
10. The Utah Supreme Court reasonably rejected Mr. Menzies’s
challenge to the constitutionality of the aggravating circumstances.
Mr. Menzies also challenges the constitutionality of the trial court’s reliance on two aggravating circumstances:
1. murders that are heinous, atrocious, and cruel , Utah Code Ann. § 76-5-202(1)(q) (1988) and
2. murders committed for pecuniary gain , Utah Code Ann. § 76- 5-202(1)(f) (1988).
The Utah Supreme Court concluded that
• the trial court had not plainly relied on the aggravating circumstance for murders that are heinous, atrocious, and cruel and
• any possible error would have been harmless.
State v. Menzies
,
In our view, the Utah Supreme Court acted reasonably. We reject Mr. Menzies’s challenges.
10.1 Aggravating Circumstance for Murders that are Heinous,
Atrocious, and Cruel
At the time of the trial, the Utah Supreme Court had yet to interpret
Utah’s aggravati ng circumstance for murders that are heinous , atrocious,
and cruel. But after Mr. Menzies appealed in state court, the Utah Supreme
Court decided
State v. Tuttle
,
• inflicted “physical torture, serious physical abuse, or serious bodily injury [upon] the victim before death” in a manner “qualitatively and quantitatively different and more culpable than that necessary to accomplish the murder” and • inflicted the abuse while in a “mental state materially more depraved or culpable than that of most other murderers.” Id. at 1215 –17 (citations omitted).
In Mr. Menzies’s direct appeal, the Utah Supreme Court concluded
that application of the aggravating circumstance hadn’t constituted plain
error.
State v. Menzies
,
• it had “no solid reason to believe that the [trial] judge thought this was an appropriate situation for reliance on the heinous factor listed in § 76-5-202- 1(q),”
• the trial judge might have been agreeing with the prosecutor’s statement about “the brutal and heinous nature of the murder,” • the pros ecutor’s statement had not referred to § 76-5-202-1(q), and
• any error would have been harmless. Id.
10.1.1 Merits
The Utah Supreme Court’s disposition under the plain- error test constituted a reasonable application of the evidence and clearly established federal law. At the sentencing phase, the prosecution had relied on the aggravating circumstance for “the method and the manner of death. ” Original Trial Tr. at 2721. For this argument, the prosecution relied on two pieces of evidence: (1) S omeone had strangled Mrs. Hunsaker and cut her throat with a sharp object, and (2) the medical examiner had testified that the cutting of M rs. Hunsaker’s throat had just started her descent into death. Id. at 1620–21, 2721.
When announcing the reasons for the death sentence, the trial court found that “the homicide [had been] committed in an especially heinous, atrocious, cruel manner demonstrated by serious bodily injury to the victim before death.” Id. at 3250; see Utah Code Ann. § 76-5-202(1)(q) (1988). But the court didn’t conclude that the prosecution had satisfied Tuttle ’s requirements for murders that are heinous, atrocious, and cruel.
Given that omission, Mr. Menzies argued that the trial court had
failed to narrow the aggravating circumstances, pointing to United States
Supreme Court precedent requiring a precise definition to “provide a
*94
meaningful distinction between capital and non- capital murders.”
Appellant’s Opening Br. at 158– 63,
State v. Menzies
, No. 880161 (Utah
Sept. 14, 1992) (quoting
State v. Tuttle
,
In the eligibility phase, the factfinder narrows the class of defendants
eligible for the death penalty by determining whether the crime fits within
a particular classification.
Tuilaepa v. California
,
Although state sentencing procedures don’t always fall neatly into these two categories, Mr. Menzies’s trial involved discrete stages for eligibility and selection. A jury found Mr. Menzies eligible for the death penalty because he had committed a murder in the course of a robbery and an aggravated kidnaping. A separate proceeding followed, where the trial judge found additional aggravating circumstances and selected the death penalty as the appropriate sentence.
But Mr. Menzies identifies no United States Supreme Court opinion
requiring precision in the definition of aggravating circumstances at a
selection phase that follows a factfinder’s determination of eligibility for
the death penalty. For example, in his direct appeal, Mr. Menzies relied
mainly on
Godfrey v. Georgia
,
Mr. Menzies also relies on
Maynard v. Cartwright
,
Because the Utah Supreme Court concluded that the trial judge had
not relied on the aggravating circumstances for murders that are heinous,
atrocious, and cruel, the court didn’t address Mr. Menzies’s challenges.
See State v. Menzies
,
10.1.2 Consideration of Mitigating Factors
Mr. Menzies also contends that the Utah Supreme Court improperly
ignored the mitigating factors. We disagree with Mr. Menzies ’s
interpretation of the Utah Supreme Court’s opinion. The court referred to
“the mitigating factors” and stated that it had reweighed the remaining
aggravating factors against the mitigating factors.
Id.
(quoting
State v.
Archuleta
,
10.2
In a single sentence, Mr. Menzies also asserts that the prosecution
lacked sufficient evidence of these aggravating circumstances. This
sentence was not enough to develop this argument, so it’s waived.
See
Thompson R2- J Sch. Dist. v. Luke P., ex rel. Jeff P.
,
For the aggravating circumstance of murder for pecuniary gain, the prosecution presented evidence that (1) cash was missing from Mrs. Hunsaker’s register and (2) roughly the same amount had been discovered in Mr. Menzies’s apartment.
The prosecution also presented evidence that Mr. Menzies had killed Mrs. Hunsaker to prevent her from testifying. For example, Mr. Britton testified that Mr. Menzies had admitted killing Mr s. Hunsaker to prevent her from testifying. And Mr. Menzies had been convicted of other robberies based on the testimony of witnesses who had not been killed. The trial court could thus reasonably determine that Mr. Menzies had decided to kill Mrs. Hunsaker to pr event her from testifying.
So even without a waiver, we would have rejected Mr. Menzies’s challenge to the sufficiency of evidence on the aggravating circumstances. 10.3 Reasonable jurists could reject Mr. Menzies’s claim
involving reliance on duplicative aggravating circumstances. Mr. Menzies argues that the trial court violated the Eighth Amendment by relying on aggravating circumstances that
• the murder had been committed while Mr. Menzies was engaged in the commission of, an attempt to commit, or flight after committing, or attempting to commit a robbery and *98 • the murder had been committed for pecuniary gain.
Mr. Menzies contends that these two aggravating circumstances were duplicative because they involved the same acts. On direct appeal, the Utah Supreme Court summarily rejected this argument. See State v. Menzies , 889 P.2d 393, 406 (Utah 1994) (“We find Menzies’ other claims to be without merit.”).
We’ve held that the double counting of aggravating factors tends “to
skew the weighing process and creates the risk that the death sentence will
be imposed arbitrarily and thus, unconstitutionally.”
United States v.
McCullah
,
Similarly, the Utah Supreme Court disallows counting of robbery and pecuniary gain as separate aggravating circumstances: “[R]obbery inherently comprises an attempt to gain pecuniarily. It is nonsensical to say that a defendant who commits a homicide during the commission of a robbery is somehow more deserving of the death penalty because he also committed the murder for pecuniary gain.” Parsons v. Barnes , 871 P.2d 516, 528 (Utah 1994).
Despite these opinions from the Utah Supreme Court and our court,
the United States Supreme Court has “never before held that aggravating
factors could be duplicative so as to render them constitutionally invalid,
nor ha[s] [the Court] passed on the ‘double counting’ theory that the Tenth
Circuit advanced in
McCullah .
”
Jones v. United States
,
11. In rejecting Mr. Menzies’s challenges involving errors in the
trial transcript, the Utah Supreme Court reasonably applied Supreme Court precedent and found the pertinent facts. In his federal habeas petition, Mr. Menzies alleged constitutional violations from the Utah courts’ failure to provide an adequate transcript. The federal district court rejected those claims. So do we. In our view, the federal district court couldn’t grant habeas relief on this claim because the Utah Supreme Court had reasonably
• applied Supreme Court precedent to require a showing of prejudice and
• determined that Mr. Menzies had not shown such prejudice. *100 11.1 The Utah courts provided the parties with an opportunity to
correct errors in the trial transcript. The trial transcript contained many errors. These errors stemmed in part from the court reporter’s process. She used shorthand notes, then prepared a transcript with help from a note reader and proofreader. The note reader transcribed the court reporter’s notes and marked sections that were hard to read. The court reporter reviewed the note reader’s comments and made corrections. The proofreader then reviewed the entire transcript and made more corrections.
Mr. Menzies’s trial counsel discovered numerous errors in the eventual trial transcript and moved for a new trial. The trial court referred the motion to the Utah Supreme Court, which remanded the case to the trial court for proceedings to correct the transcript.
On remand, counsel for both sides spent roughly three weeks with the court reporter, trying to correct the mistakes. The court reporter read from her shorthand notes while the attorneys followed along with copies of the original transcript. Together, the court reporter and the attorneys spotted (1) discrepancies between the notes and the transcript and (2) gaps in the transcript (including parts of the voir dire and some of the trial judge’s admonitions to the jury).
After the court reporter and attorneys had finished these meetings, the trial court conducted an evidentiary hearing. At that hearing, Mr. *101 Menzies’s lead trial lawyer testified, pointing to (1) errors in the original transcript that had not been corrected and (2) mismatches between the court reporter’s notes and the original transcript. In the view of Mr. Menzies’s attorney, the note reader had tried to fix problems with the court reporter’s notes without knowing whether these fixes reflected what had been said at the trial. Given the attorney’s testimony, Mr. Menzies argued that the lack of a reliable trial transcript prevented a meaningful appeal in state court.
11.2 The trial court found no constitutional violation, and the
record contained two versions of the transcript. The trial court rejected this argument, concluding that the transcript was accurate enough for appellate review. The parties then filed three versions of the transcript with the Utah Supreme Court:
1. the original version,
2. the “California” version, which contains the notes of Mr.
Menzies’s lead counsel regarding alleged gaps and errors, and
3. another version containing more notes and corrections.
The trial court designated the first two versions as part of the record on
appeal.
See State v. Menzies
,
11.3 The Utah Supreme Court upheld the trial court’s ruling that
the transcript was accurate enough for a meaningful appeal. In the state-court appeal, Mr. Menzies advanced legal and factual challenges to the trial court’s ruling. As a legal challenge, he contended *102 that the trial court had erroneously required him to show prejudice from the errors. And factually, Mr. Menzies contended that the trial court should have found prejudice.
The Utah Supreme Court rejected these legal and factual challenges for three reasons:
1. “The clear weight of authority requires a showing of prejudice to overturn a conviction on the basis of transcription errors,” and Utah courts had followed that approach.
2. The cited errors could be reconciled based on the context and didn’t bear on the underlying appellate issues.
3. It was “possible to cure any conceivable prejudicial errors without retrying the case.”
State v. Menzies,
11.4 The Utah Supreme Court’s decision was not based on an
unreasonable application of clea rly established federal law. Mr. Menzies challenges this reasoning, arguing in part that the Utah Supreme Court unreasonably applied clearly established federal law. Mr. Menzies failed to preserve this argument, and it’s invalid.
In federal district court, Mr. Menzies didn’t argue that the state courts had unreasonably applied clearly established federal law when addressing the transcription errors. As a result, Mr. Menzies failed to preserve this argument for appellate review. See Grant v. Royal , 886 F.3d 874, 909 (10th Cir. 2018) (concluding that the failure to make an argument under § 2254(d)(2) prevented appellate review); Harris v. Sharp , 941 F.3d *103 962, 975 (10th Cir. 2019) (“Even in habeas cases involving the death penalty, we consider arguments forfeited or waived when they are raised for the first time on appeal.”).
Even if Mr. Menzies had preserved this argument, we wouldn’t
question the reasonableness of the Utah Supreme Court’s application of
clearly established federal law. For clearly established federal law, Mr.
Menzies relies on the United States Supreme Court’s recognition of a
constitutional right to meaningful appellate review of a criminal
defendant’s conviction and sentence
. See Evit ts v. Lucey
,
This right includes “a ‘record of sufficient completeness’ for
adequate consideration of the errors assigned.”
Draper v. Washington
, 372
U.S. 487, 497 (1963) (quoting
Coppedge v. United States
,
Mr. Menzies’s appeal involved a mistake-riddled transcript rather
than a transcript that’s incomplete. Given these mistakes, Mr. Menzies
contends that he shouldn’t have had to show prejudice. In applying the
precedents of the United States Supreme Court, however , we have held that
habeas petitioners challenging transcription errors must show prejudice to
their ability to pursue an appeal in state court.
Capps v. Cowley
, 63 F.3d
982, 983 (10th Cir. 1995);
United States v. Clark
,
The circuit courts ’ requirement of prejudice is reasonable given the
absence of Supreme Court precedent, for “[t]here is no Supreme Court . . .
authority on the due process implications of a state court’s failure to
record portions of a criminal trial.”
Madera v. Risley
,
But Mayer provides little help because our issue doesn’t involve the failure to provide a transcript. The State provided a transcript of more than 3,000 pages, and Mr. Menzies had a chance to thoroughly review these pages and propose corrections.
In circumstances like ours, courts have not read
Mayer
to relieve a
defendant of the burden to show prejudice from transcription errors. For
example, the Sixth Circuit observed that “
Mayer
does not stand for the
proposition . . . that where a portion of a trial transcript is missing and
unobtainable, and where a defendant makes a claim that could possibly
implicate that portion of the transcript, a retrial is always necessary.”
Scott
v. Elo
,
Regardless of whether the Sixth Circuit was correct, fair-minded jurists could reasonably conclude that Mayer doesn’t relieve a criminal defendant of the need to show prejudice. As a result, Mr. Menzies’s challenge is not only unpreserved but also meritless.
11.5 The Utah Supreme Court did not base its decision on an
unreasonable determination of fact . Mr. Menzies also challenges the factual underpinnings of the Utah Supreme Court’s decision, arguing that the court unreasonably rejected his allegations of prejudice. The federal district court rejected this argument. We do, too. Reliance on the Docketing Statement
11.5.1 In finding no prejudice, the Utah Supreme Court referred to the issues raised in Mr. Menzies’s docketing statement. Mr. Menzies criticizes that reference. But when the court made this reference, the docketing statement provided the only meaningful source to identify the appellate issues.
Mr. Menzies points out that when he filed the docketing statement, the court reporter hadn’t yet finished the transcript. Although Mr. Menzies had appealed based on the errors in the transcript, he hadn’t yet appealed *107 his conviction or sentence. So in Mr. Menzies’s view, the Utah Supreme Court shouldn’t have used the docketing statement to gauge prejudice.
Mr. Menzies’s argument ignores later develo pments in his direct
appeal. The Utah Supreme Court addressed the transcription errors before
turning to other issues.
See State v Menzies
,
Based on the information in the initial appeal, which involved only transcript issues, the Utah Supreme Court acted reasonably in relying on the docketing statement. When referring to the docketing statement, the court didn’t have the benefit of the briefs in Mr. Menzies’s second appeal, which would later assert other challenges to his conviction and sentence. Those briefs didn’t yet exist. Without the benefit of those briefs, the court needed something to gauge the possible prejudice from the transcription errors. The court thus used the docketing statement as a guidepost to measure prejudice.
Of course, Mr. Menzies later submitted the briefs in his second appeal. When he did so, he could have used his newly asserted arguments *108 to supplement his showing of prejudice. If prejudice hadn’t been apparent earlier from the docketing statement, Mr. Menzies could have shown prejudice by tying the transcription errors to his newly asserted arguments. But Mr. Menzies didn’t do that. He instead incorporated the arguments on the transcription errors that he had made in his first appeal. Appellant’s Opening Br. at 29, State v. Menzies , No. 880161 (Utah Sept. 14, 1992).
Given the court’s earlier rejection of these arguments, the Utah
Supreme Court summarily rejected Mr. Menzies’s reiteration of his
argument from the prior appeal.
See State v. Menzies
,
The Utah Supreme Court addressed these errors, but concluded that the record allowed full and fair consideration of any claim involving jury *109 selection. State v. Menzies , 845 P.2d 220, 233 (Utah 1992). For Mr. Menzies’s argument that some questions and answers had been omitted from the transcript, the court reasoned that
• many answers could be determined from the context of the questioning,
• most of the gaps concerned capital punishment and a decision on the sentence was ultimately assigned to the trial judge rather than the jury,
• only one to four errors existed for a given prospective juror, • many questions were redundant, and
• prospective jurors had obtained a list of questions and could read along, suggesting that the judge had asked each the same questions even when the transcript didn’t fully record what had been said.
Id. at 229– 31.
In considering the effect of the transcription errors on determining the prospective jurors challenged for cause, the court explained that their identities were apparent from the jury list, the polling of the jury after the conviction, and the mid-trial questioning of a juror. Id. at 229. And at the end of the voir dire, Mr. Menzies’s attorney stated that eight prospective jurors had been challenged for cause and not dismissed. Id. So “[t]he record [was] adequate to provide [Mr.] Menzies with a full and fair review of any claim relating to jury selection.” Id. at 233.
Mr. Menzies contends that the Utah Supreme Court made unreasonable factual determinations, insisting that no record existed for much of the voir dire. For this contention, he repeats the argument that the court reporter’s shorthand notes did not record some questions and answers for prospective jurors. From his comparison of the shorthand notes with the transcript first submitted, he argues that the note reader had sometimes copied questions and answers and inserted them for other prospective jurors. Appellant’s Supp. Br. at 6– 7.
For example, Mr. Menzies cites instances where the court reporter ’s notes said only “BLRB ” (presumably short for “blurb”). Appellant’s Supp. Reply Br. at 2 (citing Trial ROA Dkt. No. 1931, at 35). And questions like these were not transcribed by the court reporter:
• “Would that prevent you from sitting in on this case and trying it on its merits?” [following up on a prospective juror’s answer that a family member was a police officer] • “Do you feel you can listen to the evidence and the evidence alone to reach a fair and impartial verdict?” California Trial Tr. at 151–52 (discussed at Trial ROA Dkt. No. 1931, at 35–36).
Mr. Menzies also cites his trial attorney’s testimony about transcription errors involving the names and numbers of the prospective jurors. Appellant’s Supp. Br. at 7 n.6. The attorney testified that
• “[t]here seemed to be a persistent problem with names. . . . Some seemed to be interposed where the note reader[,] who had apparently had written copies of the jury list, had indicated other names,” Trial ROA Dkt. No. 1931, at 29, • “[i]n numerous places on this page [when the court clerk called prospective jurors], the names are either . . . incorrect, and the numbers which the clerk allegedly called out are changed from the typed version [prepared by the note reader] to the version taken down by [the court reporter]. And so it is impossible to tell whether or not they were called in a correct order, or whether improper numbers had been associated with wrong names,” id. at 52, and
• the transcript often had failed to identify which prospective juror was speaking, id. at 113.
From these errors, Mr. Menzies asserts that his attorney couldn’t determine (1) which prospective juror had been challenged for cause and (2) whether a biased prospective juror had been selected for the jury.
We conclude that the Utah Supreme Court acted reasonably in determining the facts. A reasonable jurist could find that the court reporter ’s errors in voir dire hadn’t prevented a meaningful appellate challenge like an erroneous denial of a challenge for cause.
Contrary to Mr. Menzies’s contention, the transcript properly reflects challenges to the prospective jurors. When voir dire ended, Mr. Menzies’s lead attorney said that she was preserving her challenges for cause even though they’d been denied. See Original Trial Tr. at 892. And on direct appeal, Mr. Menzies argued that the trial court had erroneously rejected challenges for cause, identifying the jurors chosen after being challenged. *112 Appellant’s Opening Br. at 29–38, State v. Menzies , No. 880161 (Utah Sept. 14, 1992). So the Utah Supreme Court acted reasonably in finding that the transcript had provided Mr. Menzies with a full and fair opportunity for appellate review of jury selection.
11.5.3 Omission of a Conference Outside the Jury’s Presence
The transcript also contains a gap when a juror had fainted during the
medical examiner’s testimony. When the juror fainted, the trial judge and
the attorneys conferred outside the jury’s presence. But this conference
was not transcribed. Given the gap in the transcript, the Utah Supreme
Court assumed that Mr. Menzies had preserved any conceivable claim
relating to the incident.
State v. Menzies
,
The Utah Supreme Court rejected this argument, so we consider the reasonableness of the court’s analysis in light of the record, Supreme Court precedent, and the arguments presented. See Part 4, above (the record and Supreme Court precedent); Wellmon v. Colo. Dep’t of Corrs. , 952 F.3d 1242, 1249 (10th Cir. 2020) (arguments presented).
In his opening brief in the first appeal, which addressed the transcription errors, Mr. Menzies said nothing about prejudice. In his reply brief in that appeal, he devoted only one sentence to prejudice : “The *113 occurrences surrounding the fainting of the juror directly affect this appeal and are not adequately recorded.” Appellant’s Reply Br. at 24, State v. Menzies , No. 880161 (Utah May 30, 1991). The Utah Supreme Court disagreed, reasoning that
• the transcript contains all of the medical examiner ’s testimony and the trial judge’s discussion with the juror who had fainted, • the trial court did not make any rulings during the excerpt that hadn’t been transcribed, and
• the attorneys later reargued the points discussed off the record.
State v. Menzies
,
The court’s rationale constituted a reasonable disposition of Mr.
Menzies’s one-sentence argument on prejudice. In similar circumstances,
we’ve appraised prejudice based on the significance of the excerpts that
aren’t transcribed.
See United States v. Haber
,
Here the guilt phase lasted 10 days, and 55 witnesses testified. In this long, complex trial, Mr. Menzies insists that his appellate attorneys couldn’t have known what had been discussed at the bench conference. But one of Mr. Menzies’s attorneys at the bench conference (Brooke Wells) later represented Mr. Menzies on appeal. Her presence at the bench conference could bear on the inq uiry as to prejudice:
When a defendant is represented on appeal by the same attorney who defended him at trial, the court may properly require counsel to articulate the prejudice that may have resulted from the failure to record a portion of the proceedings. Indeed, counsel’s obligation to the court alone would seem to compel him to initiate such disclosure. The attorney, having been present at trial, should be expected to be aware of any errors or improprieties which may have occurred during the portion of the proceedings not recorded.
United States v. Selva
,
Of course, the attorneys might have forgotten some error made at the
bench conference. But the Utah Supreme Court found that (1) the attorneys
had later reargued the points discussed in the bench conference and (2) the
trial judge hadn’t made any rulings during the bench conference. Mr.
Menzies does not challenge these findings. Given Mr. Menzies’s attorneys’
opportunity to reargue the points and rulings from the bench conference,
the Utah Supreme Court could reasonably regard the possibility of a n
unrecorded error as speculation.
See Scott v. Elo
,
Mr. Menzies hasn’t identified issues that he could have raised with transcription of the proceedings involving the fainting incident. The omission alone doesn’t signal prejudice. Without more, the Utah Supreme Court acted reasonably in finding that the record had allowed appellate challenges involving the fainting juror. Additions by the Note Reader
11.5.4 Mr. Menzies cites instances when the note reader made additions and corrections to the court reporter’s shorthand notes. In Mr. Menzies’s view, *116 these additions and corrections prevent a reliable record of the trial proceedings.
The Utah Supreme Court rejected this challenge, reasoning that the
note reader’s changes created minor discrepancies that were not
prejudicial.
State v. Menzies
,
Mr. Menzies cites ten changes by the note reader: 1. adding the name of a co- inmate who complained to a jailer, Appellant’s Supp. Br. at 7 (citing Trial ROA Dkt. No. 1931, at 61),
2. clarifying a statement by Mr. Menzies about what had been taken from his cell, id. (citing Trial ROA Dkt. No. 1931 , at 72), 3. changing a statement by Mr. Menzies’s trial counsel from “[w]e have come who is in distress in there” to “[w]e have to calm who is in distress in there” (discussing the juror who fainted), id. (citing Trial ROA Dkt. No. 1931 , at 78) (emphasis added), 4. correcting testimony from an expert witness that “I would be picking up the . . . SHER ” to “I would be picking up the things that would be consistent in depression , ” id. (citing Trial ROA Dkt. No. 1931, at 79– 80) (emphasis added), 5. changing an expert’s testimony that “there’s a number of them which will parallel the same systems as people who are having psychological problems” to “there’s a number of them who have the same symptoms as people who are having psychological problems,” id. (citing Trial ROA Dkt. No. 1931, at 83) (emphasis added),
6. adding the judge’s statement to the jury (“[ W]hile you are excused, please remember the admonitions about talking with anyone, exposing yourself to any publicity regarding this case, *117 Okay?”), id. (citing Trial ROA Dkt. No. 1931, at 116), even though the court reporter’s notes showed only an asterisk, see California Trial Tr. at 557,
7. using the trial judge’s notes on his findings at sentencing to clarify the court reporter’s shorthand notes, Appellant’s Supp. Reply Br. at 4 (citing Trial ROA Dkt. No. 1931, at 50 –51), 8. adding testimony from an expert witness about the name of an enzyme found on a cigarette butt, id. (quoting Trial ROA Dkt. No. 1931, at 59),
9. changing the court reporter’s version of testimony from a jail inmate who had testified that Mr. Menzies admitted to the murder (from “[t]hat came up from the news hearings that he had Friday night” to “[t]hat came up from the news hearings that they had Friday night”), id. (citing Trial ROA Dkt. No. 1931, at 60 ) (emphasis added), and
10. inserting language from a police report that had not matched the statement in the courtroom, id. (citing Trial ROA Dkt. No. 1931, at 73 –75).
The Utah Supreme Court reasonably found no prejudice from these discrepancies.
Mr. Menzies disagrees, pointing to the court reporter’s apparent use of police reports to supplement the court reporter’s notes. We reject this argument.
In the relevant passage, the transcript was addressing a proffer by defense counsel rather than testimony of a witness. See Trial ROA Dkt. No. 1931, at 73 –75; California Trial Tr. at 2237. The proffer was heard by the trial court, not by the jury. The jury then heard testimony from a witness, and Mr. Menzies doesn’t identify errors in the transcription of that *118 testimony. So the state appeals court could reasonably find a failure to show prejudice.
The state appeals court also acted reasonably in addressing the other additions by the note reader. In the Utah Supreme Court, Mr. Menzies asserted that the note reader had concocted statements to make sense of the court reporter’s notes. Though Mr. Menzies provided examples, he never said how any of the note reader’s additions would have impeded his ability to appeal a particular issue. Given that omission, the Utah Supreme Court acted reasonably in finding no prejudice from the note reader’s additions. Errors Involving Numbers 11.5.5
Mr. Menzies also points to transcription errors involving numbers.
The Utah Supreme Court acknowledged confusion in the transcript as to
the numbers involving “addresses, distances, and dates.”
State v. Menzies
,
Mr. Menzies argues that the numerical errors impaired the reliability of testimony involving
• Mr. Larrabee’s identification of Mr. Menzies in the wooded area and
• discovery of Mr s. Hunsaker’s identification cards at the jail. *119 In our view, the Utah Supreme Court reasonably concluded that Mr. Menzies had not established prejudice from the alleged transcription errors.
For Mr. Larrabee’s testimony, Mr. Menzies’s counsel identified only one numerical discrepancy. This discrepancy involved the distance between Mr. Larrabee and Mr. Menzies when they were in the wooded area. Focusing on this discrepancy, Mr. Menzies argued to the Utah Supreme Court that the distance had affected the reliability of Mr. Larrabee’s testimony. But in the Utah Supreme Court, Mr. Menzies never argued that the discrepancy regarding the distance had affected his ability to raise an appellate issue involving Mr. Larrabee’s testimony.
With no such argument, the Utah Supreme Court examined the record
and concluded that the discrepancy wasn’t prejudicial. The court pointed
out that (1) Mr. Larrabee had spotted the man three times and (2) the
discrepancy involved only Mr. Larrabee’s first sighting of the man with a
woman.
See State v. Menzies
,
For Mr s. Hunsaker’s identification cards, Mr. Menzies argues that the times stated in the transcript were essential to the State’s theory (that he had obtained the cards when he abducted her and had then discarded them at the jail). We agree that the times were important to the State’s theory linking Mr. Menzies to the crime. But the discrepancy between the transcript and the court reporter’s notes does not undermine the prosecution’s theory regarding the identification cards.
A jail officer testified that he had discovered the cards in a dressing room “between 6:30 and 7:00” p.m. on February 24, 1986. Original Trial Tr. at 1561. On cross- examination, the officer acknowledged saying later that he had discovered the cards at “about 6:30 p.m.” Id. at 1566. Another officer testified that he had arrested Mr. Menzies for an unrelated burglary on February 24 and had brought him to the jail at about 6:40 p.m. Original Trial Tr. at 1540. The second officer reported that Mr. Menzies had broken away from the officers, run into the dressing room where the cards were found, and remained alone there for several seconds.
In closing arguments, the parties disagreed in their interpretations of this testimony. The prosecution argued that (1) the times were approximate and (2) Mr. Menzies had arrived at the jail before the first officer’s discovery of Mrs. Hunsaker’s identification cards. Id. at 2622–24. Mr. Menzies’s attorney countered that the first officer had found the cards at 6:30 p.m., which preceded Mr. Menzies’s arrival at the jail. Id. at 2667. As *121 a result, his attorney asserted, the prosecution had not shown that Mr. Menzies had obtained Mrs. Hunsaker’s identification cards. Id. at 2667–68. Although the times were important to the State’s theory, Mr. Menzies has not shown how the transcription errors had prevented an appellate challenge.
Mr. Menzies apparently faults the Utah Supreme Court for failing to
infer that the court reporter had misstated these times because she had
made other errors about other numbers. But the Utah Supreme Court could
reasonably decline to draw that inference, for Mr. Menzies’s attorney had
an opportunity to review the court reporter’s notes, compare those notes to
the final version of the transcript, and propose corrections.
See State v.
Menzies
,
* * * In summary, the Utah Supreme Court reasonably concluded that the transcription errors did not prevent meaningful appellate review of Mr. Menzies’s conviction or sentence.
12. A certificate of appealability is unwarranted on the
admissibility at trial of Mr. Britton’s testimony from the preliminary hearing.
Mr. Menzies moves to expand the certificate of appealability to challenge the introduction at trial of Mr. Britton’s testimony from the preliminary hearing.
Mr. Britton appeared at the trial, but he refused to testify . Mr. Britton explained that he feared for his safety if he testified.
Following this refusal to testify, the trial court ruled that (1) Mr. Britton was “unavailable” and (2) the preliminary hearing testimony was admissible. Mr. Menzies moved to suppress the testimony from the preliminary hearing, but the trial court denied the motion. The testimony was then read to the jury.
On direct appeal, Mr. Menzies argued that introduction of testimony from the preliminary hearing had violated his right to confront adverse witnesses. The Utah Supreme Court rejected Mr. Menzies’s argument, reasoning that
• “every reasonable effort [had been] made to produce Britton at trial,”
• “the trial court [had] correctly concluded that Britton was unavailable, ” and
• “the preliminary hearing testimony as a whole . . . [had] contain[ed] sufficient indicia of reliability to warrant its admission at trial.”
State v. Menzies
,
Mr. Menzies argues that this decision resulted in a violation of the Confrontation Clause. Under the Confrontation Clause, the prosecution could use the preliminary hearing testimony if
• Mr. Britton had been unavailable at trial and • the testimony at the preliminary hearing had reflected sufficient indicia of reliability.
Ohio v. Roberts
,
Mr. Menzies argues that these conclusions rested on unreasonable determinations of fact, which would allow the district court to consider the merits of this challenge. See 28 U.S.C. § 2254(d)(2). The district court disagreed, as do we.
12.1 Standard for a Certificate of Appealability
Mr. Menzies can appeal this ruling only upon the issuance of a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A). A member of the panel can issue a certificate only if a reasonable jurist could find Mr. Menzies’s appellate argument reasonably debatable. Laurson v. Leyba , 507 *124 F.3d 1230, 1232 (10th Cir. 2007). Applying this standard, we decline to expand the certificate of appealability to encompass this challenge. Mr. Britton’s Unavailability 12.2
The state trial court found that Mr. Britton was unavailable during
the trial. And on appeal, the Utah Supreme Court agreed, explaining that
Mr. Britton had “repeatedly refused to testify despite the judge’s order to
do so” and “every reasonable effort [had been] made to produce Britton at
trial.”
State v. Menzies
,
This concession was understandable given Mr. Britton’s testimony at trial. When questioned by the State and the trial court, Mr. Britton said four times that he was refusing to testify. And when defense counsel asked about a psychological evaluation, Mr. Britton again refused to answer. This refusal prompted the trial court to order Mr. Britton to answer defense counsel’s questions, and Mr. Britton still refused. Given defense counsel’s concession and Mr. Britton’s refusal to answer questions, the Utah Supreme Court acted reasonably in finding Mr. Britton unavailable to testify at the trial.
Despite the refusal to testify, Mr. Menzies argues that the prosecution failed to make a good -faith effort to obtain Mr. Britton’s testimony. Again, however, the Utah Supreme Court’s factual assessment *125 was at least reasonable. The prosecution did obtain Mr. Britton’s presence at the trial. His physical presence wasn’t the problem. The problem was that Mr. Britton refused to testify once he was there. Any jurist would question the prosecutor’s ability to overcome Mr. Britton’s resistance. We thus regard the Utah Supreme Court’s finding of unavailability as reasonable, and no jurist could disagree.
12.3 Reliability
The Utah Supreme Court also concluded that Mr. Britton’s testimony
at the preliminary hearing had sufficient indicia of reliability.
State v.
Menzies
,
For this argument, Mr. Menzies insists that Mr. Britton lied at the preliminary hearing, falsely denying that a prosecutor had promised a favorable affidavit . Regardless of the truth or falsity of Mr. Britton’s testimony about the alleged promise , fair- minded jurists could reasonably conclude that defense counsel had an adequate chance to ask Mr. Britton about promises from the prosecutor. Indeed, defense counsel did ask Mr. Britton at the preliminary hearing about the possibility of favorable treatment based on his cooperation with law-enforcement officers.
Given defense counsel’s opportunity to cross- examine Mr. Britton
about this possibility, no jurist could legitimately question the
reasonableness of the Utah Supreme Court’s finding on reliability. As the
Utah Supreme Court reasoned, “the preliminary hearing transcript indicates
that the issue [of Mr. Britton’s credibility] was well- explored.”
State v.
Menzies
,
So we deny a certificate of appealability on this claim.
13. Conclusion
We affirm the denial of the habeas petition and deny the remaining request to expand the certificate of appealability.
Notes
[1] In this motion, Mr. Menzies also requested expansion of the certificates of appealability to encompass errors in the trial transcript. The Court previously granted this part of the motion.
[2] Mr. Menzies also asserts that the “police led Larrabee to believe the suspect was in the photo array.” Appellant’s Opening Br. at 21. Mr. Menzies provides no citation for this assertion.
[3] In federal district court, Mr. Larrabee presented a different account:
“We [had been] told on more than one occasion by detectives that they had
the man responsible in custody, and I assumed that the photos we were
shown included the man that was said to be in custody.” R. vol. VII, at 26,
¶ 8. We do not consider this account. In reviewing the Utah Supreme
Court’s decision, we consider only the evidence in the state- court record.
See Shinn v. Ramirez
,
[4] Mr. Menzies has not urged plain error, so we’d decline to apply the
plain-error standard even if we were to classify the issue as forfeited rather
than waived.
See Hancock v. Trammell
,
[5] Mr. Menzies concedes that defense counsel did not challenge the suggestiveness of the photo arrays. Defense counsel instead objected based on a failure to disclose this identification before the trial. Appellant’s Opening Br. at 21– 22.
[6] In a single sentence, Mr. Menzies also asserts that the Utah Supreme
Court failed to consider the pertinent factors bearing on the
constitutionality of the identification testimony. Appellant’s Opening Br.
at 27–28. This assertion is mistaken. The court identified these factors and
discussed them at length.
Menzies v. State
,
[7] Mr. Menzies contends that
Wood
mischaracterized a Supreme Court
opinion (
Williams v. Taylor
, 52
[8] Mr. Menzies also says that his attorney should have interviewed the girlfriend. But Mr. Menzies doesn’t say what the girlfriend would have added.
[9] Three other pieces of evidence suggested that Mr. Britton may have been mentally ill: (1) the docket in Mr. B ritton’s criminal case contained a motion for determination of mental capacity; (2) Mr. Britton acknowledged that he had undergone a mental health evaluation; and (3) Mr. Menzies had told his attorneys that Mr. Britton was mentally ill. But Mr. Menzies focuses on Dr. Lebegue’s letter.
[10] Mr. Menzies did cite the letter, but only when stating the reason for Dr. Lebegue’s psychiatric evaluation—not for anything that the doctor had said.
[11] In closing argument, Mr. Menzies’s attorney referred to the impeachment of Mr. Britton, telling the jury that Mr. Britton had benefited from the testimony implicating Mr. Menzies: “[W]hat Mr. Britton got for his testimony here [in Mr. Menzies’s murder case] . . . was an appearance by [the prosecutor] . . . at a [federal court] hearing in which it was presented to the judge that Mr. Britton was a cooperative person, that he had helped the police. That was used to reduce his sentence or for the judge to maintain jurisdiction over him so that hopefully, something could be done down the line.” Original Trial Tr. at 2670 –71.
[12] The State argues that Mr. Menzies could not use the declaration
because it was not part of the state- court record.
See Cullen v. Pinholster
,
[14]
Monk
was our case, not the Supreme Court’s. Under 28 U.S.C.
§ 2254(d)(1), the district court must focus on precedent by the Supreme
Court, not our court.
See Carter v. Ward
,
[15] When Mr. Menzies filed his direct appeal, Utah hadn’t yet changed its rule to allow consideration of ineffective-assistance claims in the direct appeal. See Utah. R. App P. 23B (eff. Oct. 1, 1992). And Mr. Menzies had the same counsel at trial and on direct appeal. So he arguably needed to claim ineffective assistance in a collateral proceeding rather than in the direct appeal.
[16] Mr. Menzies also refers to psychiatric reports in • February 1973, • February 1976, and • March 1976.
[18] Mr. Menzies also cites the dissent from the state supreme court’s
opinion in his direct appeal. There the dissenting justice concluded that the
trial judge should have evaluated the relevance and reliability of the
documents before allowing them into evidence. For this conclusion, the
justice relied on Utah Supreme Court opinions concluding that evidence
offered in capital sentencing proceedings must bear relevance and
reliability.
State v. Menzies
,
[19] Mr. Menzies also says that it was “problematic” for the trial judge to rely on an aggravating circumstance involving a prior felony conviction for threats or violence. But he acknowledges that such evidence existed here and was “typical” of evidence presented in capital sentencing proceedings. He thus doesn’t appear to challenge use of this aggravating circumstance.
[20] In
Buchanan
, the court explained:
It is in regard to the eligibility phase that we have stressed the
need for channeling and limiting the jury’s discretion to ensure
that the death penalty is a proportionate punishment and
therefore not arbitrary or capricious in its imposition. In
contrast, in the selection phase, we have emphasized the need for
a broad inquiry into all relevant mitigating evidence to allow an
individualized determination.
[21] The Utah Supreme Court also concluded that any error in considering
this aggravating circumstance would have been harmless.
State v. Menzies
,
[22] After the Utah Supreme Court decided the appeal, the United States Supreme Court overruled Ohio v. Roberts. Crawford v. Washington , 541 U.S. 36, 60–70 (2004). But Ohio v. Roberts controlled when the Utah Supreme Court rendered a decision.