Honie v. Powell
| Decision Date | 26 January 2023 |
| Docket Number | 19-4158 |
| Citation | 58 F.4th 1173 |
| Parties | Taberon Dave HONIE, Petitioner - Appellant, v. Robert POWELL, Warden, Utah State Prison, Respondent - Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jon M. Sands, Federal Public Defender (Therese M. Day and Eric Zuckerman, Assistant Federal Public Defenders, with him on the briefs), Phoenix, Arizona, for Petitioner-Appellant.
Melissa Holyoak, Utah Solicitor General (Andrew F. Peterson, Assistant Solicitor General, and Sean D. Reyes, Utah Attorney General, on the brief), Salt Lake City, Utah, for Respondent-Appellee.
Before HOLMES, Chief Judge, LUCERO, Senior Circuit Judge, and PHILLIPS, Circuit Judge.
One evening twenty-four years ago, Taberon Honie called his ex-girlfriend on the telephone, demanded that she immediately visit him, and threatened to kill several of her family members if she didn't. When she went to work instead, Honie made good on his threat, brutally murdering her mother hours later. As Honie tried to leave through the garage at the murder scene, police noticed blood covering his hands and forearms and asked him about it. Honie confessed to the murder and kept confessing the next day.
About two weeks before trial, following his lawyer's advice, Honie waived his Utah statutory right to jury sentencing in favor of sentencing by the trial judge. But years later, Honie alleged (1) that soon after he waived jury sentencing, a fellow inmate told him that he had made a mistake in doing so; (2) that a week before trial, Honie asked his trial counsel to withdraw the waiver; and (3) that counsel told him it was too late.
During the defense's opening statement at the murder trial, Honie's counsel conceded that Honie was guilty of the aggravated-murder charge, telling the jury that the case would be about punishment. After hearing the evidence, a Utah state jury convicted him of aggravated murder. Then after considering the parties’ evidence presented at the penalty phase, the trial judge imposed a sentence of death. On direct appeal, the Utah Supreme Court upheld the conviction and sentence.
In seeking state postconviction relief, Honie argued under the Sixth Amendment that his trial counsel performed deficiently in two ways: (1) by inadequately explaining his right to jury sentencing, and (2) by not following his direction to retract his waiver. The Utah Supreme Court rejected Honie's first claim, concluding that Honie's counsel had performed competently. On the second, the court didn't rule on the deficient-performance question. For both claims, the court ruled that Honie had suffered no prejudice.
In evaluating Honie's ineffective-assistance-of-counsel claim, the Utah Supreme Court began by reciting the general standard from Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice under that standard, Honie needed to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Honie v. State (Honie II ), 342 P.3d 182, 192 (2014) (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). In applying this general standard to Honie's prejudice argument, the Utah Supreme Court treated "the result of the proceeding" as meaning the result of the sentencing proceeding. Id. Tracking how Strickland applied its general prejudice standard to require a reasonable probability of a change in the case's substantive outcome, the Utah Supreme Court ruled that Honie could show prejudice only if "the sentencer, in this case the trial judge, ‘would have concluded that the balance of aggravating and mitigating circumstances did not warrant death’ in the absence of counsel's deficient performance." Id. (quoting Strickland , 466 U.S. at 695, 104 S.Ct. 2052 ). The court concluded that Honie had failed to make that showing.
Now before us on federal habeas review, Honie argues that the Utah Supreme Court's application of Strickland ’s substantive-outcome test for prejudice was contrary to, or involved an unreasonable application of, clearly established law. He argues that the holdings of three more-recent Supreme Court cases required the Utah Supreme Court to instead use the process-based test as done in Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). If Hill ’s standard applied, Honie would have instead needed to show a reasonable probability that, but for counsel's errors, he would have chosen jury sentencing.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we may grant Honie relief only if the Utah Supreme Court's adjudication on the merits was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The general standard provided in Strickland provides Honie a first level of clearly established law for prejudice. Under that level, Honie can meet the general prejudice test if he shows that "the result of the proceeding would have been different." Strickland , 466 U.S. at 694, 104 S.Ct. 2052. But for Honie's claim, that simply invites another legal question—what does "the result of the proceeding" mean?
As mentioned, depending on the context, the Supreme Court cases give two possible meanings: (1) the substantive outcome of the case, that is, the underlying conviction or sentence, or instead (2) the procedural outcome of the decision, that is, whether the defendant would have chosen to plead or go to trial. The key point here is that no one contends that, absent the Hill line of cases, the Utah Supreme Court either would have acted contrary to or unreasonably applied Strickland ’s general-prejudice standard by choosing the substantive-outcome test over the process-based test. For Honie, all depends on Hill and its line of cases.
That leads us to the issue before us. In cases like Honie's, which contest the state court's choice of the two applications of Strickland ’s general standard for prejudice, the defendant must provide a second level of clearly established law that requires courts to apply the application he advocates for his circumstances. Here, that means Honie must identify a Supreme Court holding that requires courts applying Strickland to use a process-based test in evaluating whether counsel's deficient performance leading to a state jury-sentencing waiver prejudices the defendant. To do so, Honie relies on the three Supreme Court cases Judge Lucero lists in the Certificate of Appealability ("COA") question— Hill , Flores-Ortega , and Lafler .
In 1995, Honie began dating Carol Pikyavit.1 The relationship ran about two years before sputtering over another year or so. Somewhere along the way, the couple had a daughter, T.H. But by 1998, Honie was living with a new girlfriend, and Carol and T.H. were living with Carol's mother, Claudia Benn. Also living with Claudia were Carol's sister, Benita, and Benita's two preschool-aged daughters, D.R. and T.R.
On July 9, 1998, Honie murdered Claudia. That evening, Honie called Carol several times, demanding that she immediately visit him at his girlfriend's house. At least partly because Carol was soon due at work, she refused. Agitated, Honie reinforced his demand with a threat—if she disobeyed his command, he would kill Claudia and Carol's young nieces and steal away with T.H. Carol disregarded Honie's threat. After all, this wasn't the first time Honie had threatened violence. He called twice more before Carol and Benita left for work at 10:30 p.m. While the two mothers worked, Claudia tended the three granddaughters at her house. About an hour after his last telephone call, Honie called a cab and made his way there.
At about 12:20 a.m., police arrived at Claudia's house in response to a neighbor's 911 call. The police saw that someone had smashed a rock through a sliding glass door to gain entry. They ordered everyone inside the house to come outside and soon saw Honie leaving through the garage. After ordering Honie to raise his hands, officers noticed that his hands and forearms were covered in blood. When they asked him about this, Honie responded, Honie v. Crowther (Honie III ), No. 2:07-CV-628 JAR, 2019 WL 2450930, at *1 (D. Utah June 12, 2019) (citation omitted).
The officers arrested Honie and went inside. In the living room, they found Claudia's partially nude body lying face down, a bite mark visible on her left arm. Next to her body lay a large, blood-covered butcher knife. Blood had pooled on the floor under her neck. Honie had slit Claudia's throat from ear to ear, beginning with four "start marks" under her left ear. State v. Honie (Honie I ), 57 P.3d 977, 982 (Utah), cert. denied , 537 U.S. 863, 123 S.Ct. 257, 154 L.Ed.2d 105 (2002). The cut was so deep that the knife reached her backbone.
Honie had also mutilated Claudia's lower body and genitalia by repeatedly stabbing her vagina and anus. Two stab wounds penetrated her vagina so deeply that they pierced the pelvic cavity of her abdomen. The medical examiner who performed the autopsy testified that Honie may have inflicted the vaginal injuries before he cut Claudia's throat. Honie later admitted that he had attempted to penetrate Claudia's anus with his penis but "decided not to after realizing the victim had died." Honie II , 342 P.3d at 187.
As the officers continued to investigate, Claudia's three granddaughters, aged twenty-two months to four years, ventured from the back of the house to where Claudia's body lay. Though the girls all had blood on them, D.R., Honie's four-year-old niece, "was covered, literally, head to toe with blood." Id. at 187. D.R. had been wearing underwear when her mother left for work, but she now wore only a T-shirt. After D.R. was again dressed in clean underwear, someone noticed that she was bleeding into the underwear. At trial, an expert testified that D.R.’s...
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