568 F.3d 862 (10th Cir. 2009), 07-4104, Gardner v. Galetka

Docket Nº:07-4104.
Citation:568 F.3d 862
Opinion Judge:McCONNELL, Circuit Judge.
Party Name:Ronnie Lee GARDNER, Petitioner-Appellant, v. Hank GALETKA, Warden of the Utah State Prison, Respondent-Appellee.
Attorney:Andrew Parnes and W. Keith Goody, Attorneys for Petitioner-Appellant. Thomas B. Brunker, Assistant Attorney General (Erin Riley, Assistant Attorney General, and Mark Shurtleff, Utah Attorney General with him on the briefs), Salt Lake City, UT, for Respondent-Appellee.
Judge Panel:Before McCONNELL, TYMKOVICH and GORSUCH, Circuit Judges.
Case Date:June 19, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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568 F.3d 862 (10th Cir. 2009)

Ronnie Lee GARDNER, Petitioner-Appellant,


Hank GALETKA, Warden of the Utah State Prison, Respondent-Appellee.

No. 07-4104.

United States Court of Appeals, Tenth Circuit.

June 19, 2009

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Andrew Parnes and W. Keith Goody, Attorneys for Petitioner-Appellant.

Thomas B. Brunker, Assistant Attorney General (Erin Riley, Assistant Attorney General, and Mark Shurtleff, Utah Attorney General with him on the briefs), Salt Lake City, UT, for Respondent-Appellee.

Before McCONNELL, TYMKOVICH and GORSUCH, Circuit Judges.

McCONNELL, Circuit Judge.

While Petitioner-Appellant Ronnie Lee Gardner was being escorted from prison to the state district court in Salt Lake City in 1985 for a hearing on a charge of second degree murder, an accomplice handed him a gun. At point-blank range, Mr. Gardner shot Michael Burdell, an attorney standing inside the court's archives room. Mr. Burdell died, and Mr. Gardner was convicted of first degree capital murder and sentenced to death.


Our recitation of the facts and lengthy case history is based largely on United State Magistrate Judge Samuel Alba's thorough Report and Recommendation, which was adopted with only slight modifications by the Utah District Court in Gardner v. Galetka, No. 2:95-CV-846-TC, 2007 WL 1071398, 2007 U.S. Dist. LEXIS 25643 (D.Utah Apr. 5, 2007); see also State v. Gardner, 789 P.2d 273 (Utah 1989)( Gardner I ) (summarizing the facts of this case).

A. The Crime

On April 2, 1985, guards transported Mr. Gardner from the maximum security unit of the Utah State Prison to the Metropolitan Hall of Justice in Salt Lake City to appear at a hearing on a second degree murder charge. As he entered the basement lobby of the courthouse, a female accomplice handed him a gun. Mr. Gardner pointed the gun at his guards, who quickly retreated to the parking lot. During this encounter, he exchanged gunfire with one of the guards and was shot, apparently in the chest.

Looking for a way out of the building, a wounded Mr. Gardner entered the archives room. A court clerk, a prison officer, and three attorneys were inside. Mr. Gardner said he had been shot, then walked back out of the archives room. When Mr. Gardner went back into the lobby, two of the attorneys, Michael Burdell and Robert Macri, attempted to hide behind the open door to the archives room. Mr. Gardner reentered the archives room with his gun held in front of him. He saw the two attorneys hiding behind the door and stopped in front of them. Standing about one-and-a-half to two feet in front of Mr. Macri, Mr. Gardner tightened his grip on the gun and pointed it at him. Mr. Burdell said, " Oh, my God." Mr. Gardner

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said, " Oh Fu-" and then moved the gun away from Mr. Macri to Mr. Burdell. Mr. Macri fled out into the lobby and Mr. Gardner fatally shot Mr. Burdell in the head after what one witness described as a " definite pause." Vol. XLVII, State Ct. Tr. 942. Mr. Gardner then fired at Mr. Burdell a second time.

Mr. Gardner forced the prison officer in the archives room to accompany him out to a stairwell leading to the second floor. While Mr. Gardner crossed the lobby, a uniformed bailiff, Nick Kirk, came down the stairs to investigate the commotion. Mr. Gardner shot and seriously wounded Mr. Kirk and then proceeded up the stairs. On the next floor, Mr. Gardner forced a vending machine serviceman to accompany him outside of the building. As soon as Mr. Gardner was outside, the serviceman broke free and dived through a teller's window inside the building. In the parking lot and surrounded by police, Mr. Gardner threw down his gun and surrendered.

B. Trial Proceedings and Direct Appeal

In 1985, Mr. Gardner was tried before a jury in the Third Judicial District Court in Salt Lake County, Utah. The jury convicted Mr. Gardner of first degree murder, attempted first degree murder, aggravated kidnaping, escape, and possession of a dangerous weapon by an incarcerated person. Only the first of these convictions is now at issue. The sole theory of the defense as to this charge was that he lacked the intent to kill Mr. Burdell-that the killing was either an accident, or at most, done with reckless disregard to human life.

On direct appeal, Mr. Gardner made the following claims of error: (1) the district court judge abused his discretion in denying him a change of venue, (2) the judge should have recused himself, (3) the death penalty laws in Utah are unconstitutional, (4) the use of his prior felony as an aggravating circumstance violated his due process rights, (5) he was improperly denied a challenge for cause, (6) excessive security in the courtroom denied his right to a fair trial, (7) the judge violated his Sixth Amendment right to confrontation when he cut off his recross-examination of a witness, (8) corrections officer Wayne Jorgensen testified about statements taken in violation of Miranda and Massiah, (9) the district court gave an erroneous jury instruction on manslaughter, (10) the district court gave an erroneous oral instruction to the jury regarding the order it should consider the various offenses, (11) the district court improperly denied his motion for directed verdict, (12) the district court erred in admitting evidence of a previous homicide he had committed as an aggravating factor, (13) his sentence was disproportionate compared to those given in similar cases, (14) the government engaged in prosecutorial misconduct, and (15) his counsel was ineffective in failing to object to the testimony of Officer Jorgensen, Dr. Heinbecker, and Mr. Fuchs. The Utah Supreme Court denied relief on all claims, Gardner I, 789 P.2d at 276, and the United States Supreme Court denied Mr. Gardner's petition for a writ of certiorari. 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990).

C. State Post-Conviction Proceedings

Mr. Gardner then sought post-conviction relief in state court. The Utah district court addressed all of his claims on the merits, and ruled that Mr. Gardner had been denied effective assistance of counsel both during the penalty phase and on appeal. Gardner v. Holden, 888 P.2d 608, 617, 619 (Utah 1994) ( Gardner II ). According to the court, trial counsel did not give a defense psychiatrist enough time to

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test and evaluate Mr. Gardner, and appellate counsel did not act as independent counsel and failed to adequately research and brief issues on appeal. Id. at 619, 620. The court held that these deficiencies required a new penalty hearing and a new appeal. It rejected Mr. Gardner's other claims. Both parties appealed.

The Utah Supreme Court reversed the district court's holding that Mr. Gardner received ineffective assistance of counsel, and affirmed its rejection of Mr. Gardner's other claims. Gardner II, 888 P.2d 608. First, the court rejected six claims that could have been raised on direct appeal but were not:

(1) error by the trial court in admitting hypnotically enhanced testimony; (2) error by the trial court in not advising Gardner of his right to remain silent and not testify; (3) violation of Gardner's right to be present at all the hearings in his case; (4) consideration by the jury of impermissible information about the victim; (5) failure to instruct the jury on all the statutory mitigating circumstances in the penalty phase; and (6) failure to instruct the jury in the penalty phase that the existence of aggravating factors had to be found beyond a reasonable doubt before they could be considered in deciding to impose the death penalty.

Id. at 614.

The court summarily rejected four of Mr. Gardner's claims of ineffective assistance during the guilt phase. First, the court held that Mr. Gardner's claim that counsel were ineffective because he was coerced to testify was addressed, in essence, on direct appeal when the court rejected Mr. Gardner's assertion that admitting his prior inconsistent statements violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Id. at 615. Second, Mr. Gardner's claim that his counsel were ineffective because they elicited testimony from him about his past convictions of violent crimes was disposed of when the court held on direct appeal that it was error to admit the evidence of his other violent crimes but not prejudicial. Id. at 616. Third, Mr. Gardner's claim that counsel were ineffective in failing to request a bifurcated trial was essentially the same as the claim raised and addressed on direct appeal: whether it was error not to hold a bifurcated hearing. Id. Finally, the court held that Mr. Gardner's claim that trial counsel were ineffective because they failed to clarify for the jury that Mr. Gardner was shot in the chest and lung rather than in the shoulder was frivolous. Id.

The Utah Supreme Court addressed Mr. Gardner's remaining claims on the merits. The court reversed the district court's holding as to ineffective assistance of trial counsel at the penalty phase, holding that Mr. Gardner was not prejudiced by counsel's failure to give Dr. Heinbecker, a defense psychologist, enough time to prepare before the penalty phase. Id. at 619. While the district court ruled that trial counsel had a conflict of interest but that Mr. Gardner waived his right to raise any such conflict, the Utah Supreme Court held that he was not denied effective assistance on account of any conflicts of interest with his trial attorneys. Id. at 620-621. The Utah Supreme Court also reversed the district court's holding that appellate counsel had failed to research and investigate the trial record for...

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