VON LESTER TAYLOR, Petitioner - Appellee, v. ROBERT POWELL, Warden, Utah State Prison, Respondent - Appellant.
No. 20-4039
United States Court of Appeals Tenth Circuit
July 30, 2021
TYMKOVICH, Chief Judge, BRISCOE, and MORITZ, Circuit Judges.
PUBLISH
Andrew F. Peterson, Assistant Solicitor General (Erin Riley, Assistant Solicitor General, and Sean D. Reyes, Utah Attorney General, with him on the briefs), Office of the Utah Attorney General, Salt Lake City, Utah, for Appellant.
Brian M. Pomerantz (Kenneth F. Murray, Phoenix, Arizona, with him on the brief), Law Office of Brian M. Pomerantz, Carrboro, North Carolina, for Appellee.
Before TYMKOVICH, Chief Judge, BRISCOE, and MORITZ, Circuit Judges.
TYMKOVICH, Chief Judge.
Linae Tiede, Kaye Tiede (her mother), and Beth Potts (her grandmother), returned to the cabin after a day of shopping in Salt Lake City. When Mr. Taylor and Mr. Deli encountered the three women, they held them at gunpoint. Linae then watched Mr. Taylor shoot her mother and heard the shots that killed her grandmother. When Linae’s father later arrived with her sister, Mr. Taylor shot him in the head. They left him in the cabin, believing him to be dead. Mr. Taylor and Mr. Deli then set the cabin on fire and kidnapped Linae and Tricia. Before more violence could occur, law enforcement stopped the two men following a 911 call from Linae’s father, who survived the shooting.
Mr. Taylor subsequently confessed to shooting both Kaye and Beth. To this day, Mr. Taylor has never denied that he fired the first shot in the brutal attack that led to the deaths of the two unarmed women.
Mr. Taylor pleaded guilty to two counts of first degree murder and was sentenced to death by a jury in Utah state court. He now challenges his convictions through a petition for federal habeas corpus relief, contending missteps by his trial attorney caused him to enter a defective guilty plea. But Mr. Taylor failed to adequately present this claim to Utah’s state courts.
Below, Mr. Taylor provided the district court with new ballistics evidence that calls into question whether he fired the fatal shots in the two murders, even if he fired some of the shots. Instead, the ballistics evidence indicates the fatal shots were fired by his accomplice. Based on this evidence, the district court credited Mr. Taylor’s claim that he was actually innocent of first degree murder and set aside the procedural bar on considering his claims for relief. In reaching the merits of Mr. Taylor’s claims for habeas relief, the district court concluded that his guilty plea was defective due to his trial counsel’s failure to adequately investigate a possible defense theory that he was culpable only of crimes less serious than first degree murder. The court therefore granted his petition for habeas corpus, undoing Mr. Taylor’s thirty-year-old conviction and sentence.
We disagree with the district court’s assessment of Mr. Taylor’s actual innocence claim. The district court concluded the evidence was inconclusive about whether Mr. Taylor fired the fatal bullets and he therefore was potentially
Mr. Taylor does not deny he actively participated in the murders. To answer the question of whether he can be actually innocent of the crime: He cannot. Mr. Taylor “is not innocent, in any sense of the word.” Herrera v. Collins, 506 U.S. 390, 419 (1993) (O’Connor, J., concurring). We therefore reverse the district court’s grant of habeas relief and remand for further proceedings consistent with this opinion.
I. Background
The meaning of “actual innocence” in the habeas context is very different from what this phrase means in popular parlance. When invoked as part of a habeas petition, actual innocence has a very specific meaning and purpose. Thus,
A. The Structure of Habeas Corpus
Contemporary habeas corpus doctrine strikes a delicate balance between justice and finality. See House v. Bell, 547 U.S. 518, 536 (2006). Habeas corpus is the tool by which federal courts can correct unjust incarcerations. A combination of statutory law under the Antiterrorism and Effective Death Penalty Act and judge-made law, federal habeas corpus serves as the path for prisoners to challenge both state and federal convictions. But the law makes this pathway narrow. For instance, we will not consider a petitioner’s claims for relief that were not adequately presented to state courts. See id.; see also Coleman v. Thompson, 501 U.S. 722, 750 (1991) (“In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.“). This narrowing function is “based on the comity and respect that must be accorded to state-court judgments.” House, 547 U.S. at 536.
To qualify for the actual innocence exception, the petitioner need not conclusively demonstrate his innocence. See House, 547 U.S. at 538 (“The Schlup standard does not require absolute certainty about the petitioner’s guilt or innocence.“). Rather, “the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of new evidence.” Schlup, 513 U.S. at 327. Or, “to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.” House, 547 U.S. at 538. This standard requires courts to engage in a counterfactual analysis, determining whether a jury confronted with all the evidence now known would still have convicted the petitioner of the crime charged. See Schlup, 513 U.S. at 329 (“[T]he standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do.“). “The court’s function is not to make an independent factual determination about
An actual innocence claim must be based on more than the petitioner’s speculations and conjectures. The gateway claim must “be credible” and requires “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Id. at 537 (internal quotation marks omitted). To be “new,” the evidence need only be evidence that was not considered by the fact-finder in the original proceedings. See Fontenot v. Crow, __ F.4th __, 2021 WL 2933220, at *36 (10th Cir. July 13, 2021) (explaining that, under Schlup, “new evidence” means evidence “newly presented” rather than evidence “newly discovered through diligence“). When determining whether a petitioner qualifies for the exception, courts are not “bound by the rules of admissibility that would govern at trial.” Schlup, 513 U.S. at 327. Instead, we may “consider the probative force of relevant evidence that was either excluded or unavailable at trial.” Id. at 327–28.
B. Factual and Procedural Background
Mr. Taylor procedurally defaulted his underlying constitutional claim—that his guilty plea was constitutionally defective based on ineffective assistance of his trial counsel. He did so by failing to raise the claim in the proper manner before the Utah state courts. He now attempts to overcome this procedural
To explain why his claim is procedurally defaulted, we next recount the relevant factual and procedural history that led to Mr. Taylor’s initial conviction and efforts to obtain post-conviction relief.
1. The Murders
In December of 1990, the Tiede family was vacationing in a family cabin in Summit County, Utah, for the holidays. On December 21, the family took an overnight trip to Salt Lake City to do some Christmas shopping. While the family was gone, Mr. Taylor and his accomplice Edward Deli broke into the cabin as part of a series of burglaries. They stayed the night at the cabin.
The family returned the next day. The cabin was located a distance from the nearest road and recent snow forced the family to use snowmobiles to get from the road to the cabin. Kaye Tiede, her twenty-year-old daughter Linae, and Kaye’s elderly mother, Beth Potts, took the snowmobiles from the road and arrived at the cabin first. Linae was the first to enter the cabin. Mr. Taylor approached her at gunpoint and asked who else was with her. Linae indicated Kaye and Beth were. Once Kaye and Beth entered, Mr. Taylor and Mr. Deli held them at gunpoint. After a short exchange, Linae witnessed Mr. Taylor shoot Kaye and heard her mother say “I’ve been shot.” Aplt. App., Vol. I at 97. Linae then
After shooting Kaye and Beth, Mr. Taylor and Mr. Deli tied Linae up and brought her to one of the cabin’s bedrooms. They told Linae that she would be coming with them when they left. Linae also testified that Mr. Deli told Mr. Taylor at one point “we need to reload.” Id., Vol. I at 135. She later overheard Mr. Taylor telling Mr. Deli that “he needed help with the bodies” to “throw them over the balcony.” Id. at 101. Finally, she heard Mr. Taylor tell Mr. Deli that “he had to shoot [one of the women] in the head twice.” Id. Beth died of a gunshot wound to the head.
About two hours after the initial shooting, Linae’s sister (Tricia) and her father (Rolf) arrived at the house. Mr. Taylor instructed Mr. Deli to shoot Rolf. When Mr. Deli hesitated, Mr. Taylor shot Rolf twice in the head and left him in the cabin, believing him to be dead.
2. The Information and Plea
Mr. Taylor and Mr. Deli were each charged with two counts of capital homicide,2 attempted homicide, aggravated arson, two counts of aggravated kidnapping, aggravated robbery, theft, failure to respond to an officer’s signal to stop, and aggravated assault. For the capital murder charges, the Information stated that “VON LESTER TAYLOR and EDWARD STEVEN DELI, did
The state held a preliminary hearing to determine whether probable cause existed to bind the men over for arraignment and trial. At this hearing, attorneys for Mr. Taylor and Mr. Deli both argued it was not clear who had fired the fatal shots that killed Kaye and Beth. Nonetheless, the state court concluded that probable cause existed as to both men. The court believed the evidence was adequate to show “that each to the other, acted with the mental state required for the commission of the offenses alleged in the Information, and they each to the other, solicited, requested, demanded, encouraged or intentionally aided the other to engage in the conduct which is alleged in the Information.” Id., Vol. III at 552.
Mr. Taylor initially pursued insanity as a defense. During his mental evaluation, he told the psychiatrist he had committed both murders. See id., Vol. XIX at 4803 (Order and Mem. Decision Granting Evid. Hr’g) (When asked whether he believed himself to be insane, Mr. Taylor responded, “No, but how can you determine? I shot two people with no motive, out of cold blood, with my
The state then offered Mr. Taylor a guilty plea—he would plead guilty to the two counts of capital murder and, in exchange, the remainder of the charges against him would be dropped. Although Mr. Taylor’s attorney told Mr. Taylor that the state’s case against him was strong, his attorney still encouraged him to proceed to trial. At a hearing on his performance, Mr. Taylor’s counsel provided his reasons for giving this advice: “This is a capital homicide case. His options are—worst option is death penalty. As far as I was concerned, it was going to trial. You didn’t have an option.” Id., Vol. VI at 1244–45. Despite this advice from his attorney, Mr. Taylor accepted the state’s offer. According to the Utah Supreme Court, Mr. Taylor chose to plead guilty “because he did not want to put his family and the victims through a trial and he did not want to testify against Deli.” State v. Taylor (Taylor I), 947 P.2d 681, 684 (Utah 1997).
The plea agreement listed the crimes as “Criminal Homicide, Murder in the First Degree as charged in Count[s] I . . . and II.” Aplt. App., Vol I at 18. The plea then provided a description of each count: “the defendant, Von Lester Taylor, did intentionally or knowingly cause the death of Beth Potts, and the homicide was committed incident to one act, scheme, course of conduct, or criminal episode during which two or more persons . . . were killed.” Id. at 19.
On the 22nd day of December, 1990, in Summit County, State of Utah, I, Von Lester Taylor, in conjunction with Edward Steven Deli unlawfully entered the cabin belonging to Rolf Tiede. When Kaye Tiede and Beth Potts returned to the cabin, I, Von Lester Taylor, and my co-defendant, Edward Steven Deli, intentionally and knowingly caused the death of both Kaye Tiede and Beth Potts by shooting them with firearms.
Id.
Having pleaded guilty, Mr. Taylor then proceeded to the penalty phase of his proceedings. After hearing testimony and arguments, a jury ultimately sentenced Mr. Taylor to death for the murders.3
3. Direct Appeal and State Collateral Review
After his sentencing, Mr. Taylor appealed both his guilty plea and sentence in state court. Mr. Taylor argued his attorney had failed him in two ways: by misinforming him about what evidence could be used against him at the sentencing phase and by suffering from conflicts of interest. The trial court held
Mr. Taylor subsequently sought post-conviction relief in state court. See Taylor v. State (Taylor II), 156 P.3d 739 (Utah 2007). In his first petition, he argued that both his trial counsel and appellate counsel had been constitutionally ineffective. The Utah Supreme Court rejected relief on the ineffective-assistance-of-trial-counsel claim, reasoning that “[b]ecause Taylor has already challenged the effectiveness of his trial counsel on appeal, his post-conviction claims that his trial counsel was ineffective are procedurally barred.” Id. at 746 (citing
Mr. Taylor then brought a petition for federal habeas corpus relief under
4. Federal Habeas Proceedings
Having finally exhausted all of his claims for relief in state court, Mr. Taylor returned to federal court. In 2012, he filed a Second Amended Petition for habeas relief, raising twenty-six claims. Mr. Taylor invoked actual innocence as a gateway to overcome the fact that a number of his claims were procedurally defaulted. To support his actual innocence claim, he moved for an evidentiary hearing to develop evidence about the circumstances of the murders. Specifically, he sought to elicit evidence that Mr. Deli had fired the fatal shots that killed Beth and Kaye. The state opposed this motion, arguing that it was irrelevant whether Mr. Taylor had fired the fatal bullets. Under the state’s reasoning, he was guilty of capital murder at least as an accomplice and thus could not establish his actual innocence.
The district court granted the evidentiary hearing. It rejected the state’s contention that Mr. Taylor had to establish actual innocence as an accomplice to qualify for the actual innocence exception. According to the district court, Mr. Taylor did not have actual notice that he was charged as and pleading guilty
At the evidentiary hearing, the parties presented ballistics and medical forensics evidence. Based on this evidence, the district court concluded that Mr. Taylor had met his burden of showing actual innocence. Specifically, the district court found that Mr. Deli had been in possession of the .44 magnum revolver throughout the shootings.4 And the district court further concluded it was likely the bullets that killed Kaye and Beth were fired from that gun. Based on these two facts, the court concluded that “no reasonable juror, conscientiously following the appropriate instructions requiring proof beyond a reasonable doubt, would have voted to convict Mr. Taylor of the charges to which he pleaded, capital murder as a principal.” Id., Vol. XX at 4907 (Findings of Fact and Conclusions of Law Regarding Claim of Actual Innocence).
The district court granted Mr. Taylor’s habeas petition based on this claim. It concluded Mr. Taylor’s trial counsel was constitutionally ineffective for failing to investigate whether Mr. Taylor fired the fatal shots. The court then determined this failure prejudiced Mr. Taylor because there was a reasonable probability that he would have chosen to proceed to trial if he had known the strength of the state’s evidence against him as the principal to the murders. Based on this
II. Analysis
On appeal, the state does not challenge Mr. Taylor’s new evidence. The state concedes for the sake of argument that Mr. Taylor did not fire the fatal shots. Rather, the state argues the district court erred as a matter of law in confining the actual innocence inquiry to Mr. Taylor’s guilt of capital murder as a principal. According to the state, Mr. Taylor pleaded guilty to the two counts of capital murder generally, not under a specific theory of liability. Thus, the state argues that because Mr. Taylor cannot establish actual innocence as both a principal and an accomplice, his claims for relief remain procedurally defaulted and we cannot consider them.
We agree with the state. As we explain below, under Utah’s laws regarding accomplice liability, the state provided Mr. Taylor notice of what crime he was being charged with and pleading guilty to: capital murder. And Mr. Taylor has done nothing to prove a reasonable, properly instructed jury more likely than not would have reasonable doubt about his guilt as an accomplice to the murders. Thus, we need not reach Mr. Taylor’s claim of ineffective assistance of counsel leading to a defective guilty plea because it remains procedurally barred.
A. Standard of Review
Our review of habeas petitions is “governed by AEDPA’s standards to the extent that the claims were adjudicated on the merits by [a] . . . state court.” Douglas v. Workman, 560 F.3d 1156, 1170 (10th Cir. 2009). Under AEDPA, we may grant a habeas petition that a state court rejected on the merits only if the state court’s adjudication of the petitioner’s claims resulted in “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
Thus, “AEDPA’s deferential standard of review for claims decided on the merits by a state court . . . has no application to a gateway innocence assertion.” Fontenot, 2021 WL 2933220, at *38. Rather, an actual innocence gateway claim is a mixed question of law and fact that we review de novo. See id. Even in this
Our decision today also requires us to interpret and apply Utah’s criminal law. We review de novo the district court’s interpretation of state law. See, e.g., Jordan v. Maxim Healthcare Servs., Inc., 950 F.3d 724, 730 (10th Cir. 2020). In conducting this review, we are bound by the state courts’ interpretation of the state’s laws. See, e.g., Chapman v. LeMaster, 302 F.3d 1189, 1196 (10th Cir. 2002) (“On habeas review, however, the New Mexico courts’ interpretation of the state felony murder statute is a matter of state law binding on this court.” (emphasis omitted)). “If the state’s highest court has not decided an issue, our task is to predict how it would rule.” Jordan, 950 F.3d at 730–31 (internal quotation marks omitted). “To guide our prediction, we may consult persuasive state authority, such as dictum by the state’s highest court and precedential decisions by a state’s intermediate appellate courts.” Id. (internal quotation marks omitted; alterations incorporated).
Mr. Taylor’s convictions resulted from his guilty plea, not a trial. When a conviction is obtained through a trial, we limit the scope of the actual innocence inquiry to the crime of conviction. See, e.g., Black v. Workman, 682 F.3d 880, 915 (10th Cir. 2012) (“This exception applies to those who are actually innocent of the crime of conviction and those ‘actually innocent’ of the death penalty (that is, not eligible for the death penalty under applicable law).” (emphasis added)).
Our analysis expands when reviewing an actual innocence claim by a petitioner who was not convicted by a jury, but who rather pleaded guilty before trial. The Supreme Court has made clear that a petitioner invoking actual innocence as to a guilty plea still has to prove his innocence of the charge to which he pleaded guilty—namely, the crime of conviction. Bousley v. United States, 523 U.S. 614 (1998). Furthermore, “[i]n cases where the Government has foregone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.” Id. at 624. The Supreme Court’s holding in Bousley prevents a petitioner from artificially narrowing the scope of the actual innocence inquiry through plea bargaining.
Still, the Court in Bousley also made clear that the actual innocence inquiry does not extend to any conceivable crimes the state could have charged but decided not to. For example, in Bousley, the government charged Bousley with
Here, the state did not forego any more serious charges in the midst of plea bargaining with Mr. Taylor. So, in assessing Mr. Taylor’s actual innocence claim, the actual innocence inquiry is limited to his liability for the crime of conviction: two counts of capital murder.
C. Accomplice Liability Under Utah Law
Given that the actual innocence inquiry is limited to the capital murder charges, the crux of Mr. Taylor’s actual innocence claim hinges on how Utah understands accomplice liability. Mr. Taylor contends the state had to specifically charge him, and he had to specifically plead guilty as, an accomplice for accomplice liability to be relevant in the Schlup actual innocence inquiry.
Accomplice liability applies when two conditions are met. First, the defendant must “have the intent that the underlying offense be committed.” State v. Briggs, 197 P.3d 628, 632 (Utah 2008). Second, the defendant must have engaged in one of the enumerated acts from the accomplice liability statute—that is, soliciting, requesting, commanding, encouraging, or intentionally aiding.
In Utah, accomplice liability is not a separate crime with different elements. See State v. Gonzales, 56 P.3d 969, 972 (Utah Ct. App. 2002) (“[C]onviction of accomplice and principal liability do not require proof of different elements or proof of different quality.“). Rather, it is a separate theory
Given that accomplice liability is a theory of guilt rather than a distinct crime, the state need not provide the same level of notice as when it charges a defendant with a substantive crime. The state does not have to identify all possible theories of guilt it intends to pursue at trial in the Information. See Gonzales, 56 P.3d at 972 (“We find it unreasonable to require the State to give
Still, if the state intends to pursue a theory of accomplice liability, it must give the defendant notice of this intention sometime prior to the close of trial. See In re D.B., 289 P.3d at 471. “Charging an individual as a principal, standing alone, does not provide adequate notice that the State is actually pursuing an accomplice liability theory.” Id. The state cannot simply spring a new theory of guilt on the defendant when instructing the jury at the end of trial. As the Utah Supreme Court has explained,
a defendant may receive constitutionally adequate notice that he is facing accomplice liability in several ways. The simplest way for the State to provide adequate notice is by actually charging the defendant as an accomplice. The state may also notify a defendant of potential accomplice liability through presentation of adequate evidence at any time prior to the close of evidence at trial.
Id. But simply because the state can explain it is pursuing a theory of accomplice liability in the initial information does not mean it must. And it certainly does not
D. Application
Here, Mr. Taylor claims his trial counsel was ineffective for failing to investigate and advise him on the “no-fatal-shot” defense. But Mr. Taylor failed to adequately present this claim in state court, meaning it is procedurally defaulted. So, we will not consider this constitutional claim unless Mr. Taylor can establish he qualifies for an exception to the bar on considering procedurally defaulted claims. Mr. Taylor argues, and the district court agreed, that Mr. Taylor overcame this procedural bar because he is actually innocent of his crime of conviction—capital murder as a principal.
Our review begins and ends with Mr. Taylor’s actual innocence claim. Mr. Taylor was charged with capital murder. Neither the Information nor the plea agreement specified a particular theory of liability, nor did they have to. The actual innocence inquiry extends beyond Mr. Taylor’s guilt as a principal to his guilt as an accomplice. This puts an end to Mr. Taylor’s actual innocence
1. Accomplice Liability
The district court limited the actual innocence inquiry to Mr. Taylor’s liability as a principal. The court reasoned that “[t]he Information did not charge Mr. Taylor with accomplice liability. Nothing in the Statement of Defendant or plea colloquy mentions accomplice liability. And, of course, no trial occurred.” Aplt. App., Vol. XIX, at 4810–11 (Order and Mem. Decision Granting Evid. Hr’g). Thus, the district court concluded that “[a]s a matter of law, Mr. Taylor did not plead guilty to accomplice liability.” Id. at 4811.
Mr. Taylor adopts the district court’s reasoning and expands on it in responding to the state’s appeal.
He first argues that extending the actual innocence inquiry to accomplice liability would raise constitutional concerns. The Sixth Amendment requires that all criminal defendants “be informed of the nature and cause of the accusation” against them.
Second, Mr. Taylor insists that assessing his potential liability as an accomplice as part of the actual innocence inquiry would conflict with Schlup. According to Mr. Taylor, considering accomplice liability at this stage would require us to speculate about what theories of guilt the state would have pursued at trial if Mr. Taylor had not pleaded guilty. Mr. Taylor maintains that such speculation is inappropriate under Schlup. See id. at 34 (“Under Schlup, the mere existence of sufficient evidence that could possibly convict Taylor of a different offense than his offense of conviction is irrelevant.” (emphasis in original)). So, forcing him to prove his actual innocence as an accomplice requires more than is necessary to qualify for the Schlup gateway.
In making both of these arguments, Mr. Taylor relies on his theory that “capital murder as an accomplice” is a separate crime under Utah law that must be
Utah argues in the alternative that the information and plea agreement contained specific language that gave Mr. Taylor adequate notice the state was charging him as an accomplice. Again, because accomplice liability is not a separate crime under Utah law, it is not necessary that Mr. Taylor had actual notice of the state’s intention to treat him as an accomplice prior to trial.
In any event, the plea agreement and proceedings contained language indicating Mr. Taylor was being treated as both a principal and an accomplice to the murders. The plea agreement explicitly stated, “My conduct, and the conduct of other persons for which I am criminally liable, that constitute the elements of the crime charged are as follows[.]” Aplt. App., Vol. I at 19 (emphasis added). The plea then described the factual basis for the crime: “When Kaye Tiede and Beth Potts returned to the cabin, I, Von Lester Taylor, and my co-defendant, Edward Steven Deli, intentionally and knowingly caused the death of both Kaye Tiede and Beth Potts by shooting them with firearms.” Id. (emphasis added).
Thus, applying the actual innocence inquiry to Mr. Taylor’s guilt as an accomplice conflicts with neither the Constitution nor Schlup. Mr. Taylor was adequately and accurately “informed of the nature and the cause of the accusation” against him.
Unlike the government in Bousley, the state of Utah is not asking Mr. Taylor to prove his innocence of an uncharged crime. Rather, the state correctly articulates what is necessary in all actual innocence cases: the petitioner must prove his innocence of the crime of conviction. Here, Mr. Taylor could have committed the capital murders as either a principal or an accomplice.7 Thus, he must establish his actual innocence under both theories of liability to qualify for Schlup’s gateway for overcoming a procedural default.
Now that we have determined the scope of the actual innocence inquiry, we evaluate whether Mr. Taylor has demonstrated he is actually innocent of the two charged counts of capital murder. To do so, we must rewind the tape thirty years and imagine a counterfactual scenario about what would have happened if Mr. Taylor had gone to trial on the two capital murder charges. We must determine what “reasonable, properly instructed jurors” would have done in light of all the evidence—including the petitioner’s newly proffered evidence—in this alternate universe. Schlup, 513 U.S. at 329. We will apply the actual innocence gateway only if it is “more likely than not” that these jurors “would have reasonable doubt” about whether Mr. Taylor committed capital murder. House v. Bell, 547 U.S. 518, 538 (2006).
In undertaking Schlup’s probabilistic inquiry, we bear several things in mind. The question must be what a jury would do with the new evidence, not what we would do. See House, 547 U.S. at 538. While the court has a responsibility to confine the actual innocence inquiry to the relevant crimes, it must make the actual innocence determination based on what “reasonable, properly instructed jurors would do.” Schlup, 513 U.S. at 329. And because we look to this reasonable, properly instructed jury, we also will not speculate about whether Mr. Taylor may have drawn a particularly lenient jury.
The state does not challenge any of the district court’s factual findings regarding the ballistics evidence. The district court concluded, and the state concedes for the sake of this appeal, that Mr. Taylor has demonstrated his actual innocence as a principal to the capital murders. Thus, we focus our inquiry solely on whether Mr. Taylor has demonstrated his actual innocence to capital murder as an accomplice.
So, we ask: would any reasonable, properly instructed juror have had reasonable doubt as to Mr. Taylor’s guilt for the capital murders as an accomplice? As a reminder, to prove accomplice liability the state must show the defendant intended that the crime be committed and also solicited, encouraged,
The state argues that Mr. Taylor’s “guilt as an accomplice is well established by the overwhelming and uncontested evidence.” Aplt. Op. Br. at 36. The state is correct. The parties do not dispute that Mr. Taylor intended the deaths of the two victims. And the record makes clear that he intentionally aided Mr. Deli in committing the crime. To be sure, it is not enough if Mr. Taylor simply “assist[ed] someone who committed murder[.]” State v. Grunwald, 478 P.3d 1, 16 (Utah 2020) (emphasis in original). He must have “assist[ed] someone to commit murder.” Id. (emphasis in original). That is precisely what Mr. Taylor did here. The facts are well established. Linae witnessed and then testified that Mr. Taylor fired his gun first, shooting Kaye. Later, Mr. Deli told Mr. Taylor they needed to reload their guns, an indication that both guns had been emptied during the shooting. Mr. Taylor subsequently told Mr. Deli he had shot one of the victims in the head twice. Mr. Taylor then asked for Mr. Deli’s help moving the bodies, and the men moved the bodies to the cabin’s balcony, covering the bodies with a blanket. After Rolf Tiede arrived, Mr. Taylor instructed Mr. Deli to shoot Rolf. When Mr. Deli did not, Mr. Taylor shot him twice. Finally, Mr. Taylor attempted to set the house on fire while the bodies of the two women remained on the cabin’s deck.
Because Mr. Taylor cannot establish his actual innocence of capital murder, our analysis ends. The constitutional claim on which the district court granted relief was procedurally defaulted, and Mr. Taylor has not provided us with any method to overcome the bar on considering such a claim.
III. Conclusion
Thirty years after participating in the murders of Kaye Tiede and Beth Potts, new ballistics evidence indicates Mr. Taylor may not have fired the fatal shots. Based
No. 20-4039, Taylor v. Powell
BRISCOE, Circuit Judge, concurring.
I fully agree with the majority that Mr. Taylor’s actual innocence gateway claim lacks merit. I write separately to emphasize three key points: (1) Taylor’s actual innocence gateway claim is inconsistent with basic principles of Utah state criminal law; (2) the record establishes that Taylor received both constructive and actual notice of the possibility that the State could pursue a theory of accomplice liability on the two aggravated murder charges; and (3) the evidence overwhelmingly establishes that Taylor participated in, and was arguably the driving force behind, the two fatal shootings, and thus he is unquestionably subject to accomplice liability for the two murders.
Taylor’s actual innocence gateway claim is inconsistent with basic principles of Utah state criminal law
Section 76-5-201 of the Utah Criminal Code states, in pertinent part, that “a person commits criminal homicide if the person intentionally, knowingly, recklessly, with criminal negligence, or acting with a mental state otherwise specified in the statute defining the offense, causes the death of another human being . . . .”
Taylor was charged by information with two counts of criminal homicide, specifically aggravated murder, in violation of
(1) Criminal homicide constitutes aggravated murder if the actor intentionally or knowingly causes the death of another under any of the following circumstances:
* * *
(b) the homicide was committed incident to one act, scheme, course of conduct, or criminal episode during which two or more persons were killed, or during which the actor attempted to kill one or more persons in addition to the victim who was killed;
* * *
(d) the homicide was committed incident to an act, scheme, course of conduct, or criminal episode during which the actor committed or attempted to commit aggravated robbery, robbery, rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, child abuse as defined in Subsection 76-5-109(2)(a), or aggravated sexual assault, aggravated arson, arson, aggravated burglary, burglary, aggravated kidnapping, or kidnapping, or child kidnapping . . . .
Chapter 2 of the Utah Criminal Code, entitled “Principles of Criminal Responsibility,” expressly recognizes the concepts of principal liability and accomplice liability for criminal offenses. Specifically,
Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.
The Utah Supreme Court has held, based upon the language of
In State v. Gonzales, 56 P.3d 969 (Utah Ct. App. 2002), the Utah Court of Appeals rejected a defendant‘s claim “that due process required the State to provide notice in the information of the State‘s intention to pursue an accomplice liability theory at trial.” Id. at 971. In doing so, the Utah Court of Appeals noted that “Rule 4(b) of the Utah Rules of Criminal Procedure requires only that an information ‘charge the offense for which the defendant is being prosecuted by using the name given to the offense by common law or by statute or by stating in concise terms the definition of the offense sufficient to give the defendant notice of the charge.‘” Id. at 972 (quoting
In State v. Blair, 868 P.2d 802 (Utah 1993), the Utah Supreme Court addressed the issue of accomplice liability in the course of addressing a defendant‘s appeal from the
In State ex rel. D.B. v. State, 289 P.3d 459 (Utah 2012), the Utah Supreme Court addressed the timing of the notice of potential accomplice liability when the defendant was originally charged solely as a principal but was later “adjudicated delinquent as an accomplice.” Id. at 471. Quoting with approval from the Utah Court of Appeals’ decision in Gonzales, the Utah Supreme Court noted that because “‘accomplices incur the same liability as principals,‘” even “‘a person charged with a crime [as a principal] has adequate notice of the possibility of accomplice liability being raised at trial.‘” Id. (quoting Gonzales, 56 P.3d at 969) (emphasis added by Utah Supreme Court). As for “the question of what notice is constitutionally sufficient before the State may actually pursue accomplice liability,” the Utah Supreme Court held “that the Sixth Amendment is satisfied when a defendant (1) receives adequate notice that the State is pursuing accomplice liability and (2) the State has not affirmatively misled the defendant.” Id. The Utah Supreme Court in turn held that “[c]harging an individual as a principal, standing alone, does not provide adequate notice that the State is actually pursuing an accomplice liability theory.” Id. “But,” the Court held, “a defendant may receive constitutionally adequate notice that he is facing accomplice liability in several ways.”
Considering this recited Utah statutory and case law as a whole, the following conclusions can be drawn regarding Taylor‘s case and the actual innocence gateway claim that he now asserts. First, the State‘s information, at a minimum, effectively placed Taylor on notice that the State, at trial, could attempt to prove Taylor guilty of the two counts of aggravated murder as either an accomplice and/or as a principal. Second, had Taylor not pleaded guilty and instead proceeded to trial, the State almost certainly, based upon its arguments at the preliminary hearing, would have pursued both theories, at least if Taylor had actually pursued the defense he now asserts that his trial counsel should have pursued, i.e., that Taylor was not directly responsible for firing the fatal shots. Third, had Taylor presented evidence at trial suggesting that Deli, rather than he, fired the
Constructive and actual notice of the accomplice theory
The district court, in its order granting Taylor‘s motion for evidentiary hearing, concluded that Taylor never received notice of the possibility that the State was pursuing or might pursue a theory of accomplice liability on the two capital murder charges. I reject this conclusion. In my view, the record firmly establishes that Taylor received both constructive and actual notice of the possibility that the State might pursue a theory of accomplice liability.
As discussed above, the State‘s information charging Taylor with two counts of aggravated murder in violation of
The preliminary hearing in the case was held on January 8, 1991, approximately two weeks after the information was filed against Taylor and Deli. Both Taylor and Deli were present along with their counsel. At the conclusion of the State‘s evidence, Taylor‘s counsel moved to dismiss Counts I and II of the information. In support of that request, Taylor‘s counsel, as an early preview of the same evidentiary issues that Taylor presently raises, noted that it was “very difficult to determine which defendant had which weapon,”
The prosecutor responded by citing to and quoting from
Thus, in sum, the evidence and arguments that were presented at the preliminary hearing provided Taylor with actual notice of the possibility that the State might seek to convict him on the basis of accomplice liability.
The uncontested evidence overwhelmingly establishes that Taylor is responsible for the two murders under a theory of accomplice liability
Because Taylor received both constructive and actual notice of the possibility of accomplice liability for the two murders, it was the district court‘s obligation under Schlup v. Delo, 513 U.S. 298 (1995), to consider not only the issue of principal liability, but also the issue of accomplice liability. Unfortunately, however, the district court focused solely on the issue of principal liability and, by doing so, failed to make a predictive judgment after examining available evidence whether a reasonable, properly instructed jury could have convicted Taylor of both murders as an accomplice. We could of course remand the case to the district court to conduct that analysis in the first instance. But, because it is a legal issue subject to de novo review, and given the importance of avoiding any additional delay in this case, the proper course for us is to conduct the analysis in the first instance.
Turning to the evidence in the record, including the evidence presented at the original sentencing proceeding and the new forensic evidence that was presented by
The undisputed evidence that supports Taylor‘s convictions as an accomplice in both murders includes the following: (a) Linae Tiede‘s eyewitness testimony that Taylor, within three to four minutes of Kaye Tiede and Beth Potts entering the cabin, and without either woman doing anything to provoke Taylor or Deli, raised his weapon, aimed it at Kaye Tiede, and shot and struck her with a bullet (notably, Taylor concedes that he was the first to shoot and that he shot and struck Kaye Tiede, Aplt. App., Vol. XIX at 4680), id., Vol. III at 94-97; (b) Taylor‘s admission under oath at the Rule 23B remand evidentiary hearing before the trial court that he emptied his .38 handgun while shooting at Kaye Tiede and Beth Potts, id., Vol. III at 608; (c) Linae Tiede‘s testimony that, after
It is inconceivable that any reasonable juror, properly instructed and considering all of this evidence, could have reached any other conclusion than that Taylor intended to kill, or at a minimum clearly knew that his actions would result in the deaths of, Kaye Tiede and Beth Potts (as well as Rolf Tiede), and that he both encouraged and assisted Deli in causing the deaths of Kaye Tiede and Beth Potts. In other words, it is inconceivable that a reasonable juror could not have found Taylor guilty beyond a reasonable doubt of the two aggravated murders at least on the basis of accomplice liability even assuming, as argued by Taylor, that none of the bullets he fired from his handgun caused the fatal wounds to Kaye Tiede and Beth Potts.
Notes
A person engages in conduct:
- Intentionally, or with intent or willfully with respect to the nature of his conduct or to a result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result.
- Knowingly, or with knowledge, with respect to his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or the existing circumstances. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.