Taylor v. Powell

• Citation: 7 F.4th 920
• Decision Date: 30 July 2021
• Docket Number: No. 20-4039,20-4039
• Parties: Von Lester TAYLOR, Petitioner - Appellee, v. Robert POWELL, Warden, Utah State Prison, Respondent - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

7 F.4th 920

Von Lester TAYLOR, Petitioner - Appellee,

v.Robert POWELL, Warden, Utah State Prison, Respondent - Appellant.

No. 20-4039

United States Court of Appeals, Tenth Circuit.

FILED July 30, 2021

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.

Von Lester Taylor and an accomplice, Edward Deli, murdered two unarmed women who tragically encountered them burglarizing a mountain cabin in December 1990.

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. Generally, such a procedural default would prevent us from considering the claim. And yet Mr. Taylor argues we should excuse his procedural default lest we commit a fundamental miscarriage of justice. Despite re-affirming time and again that he participated in the murders, Mr. Taylor now argues he is "actually innocent" of them. Thus, he contends we should consider his underlying claims for habeas relief. But, given these facts, how can he be actually innocent?

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 innocent as the principal triggerman. But under Utah law, an accomplice to a violent felony can be equally liable for first degree murder. The district court concluded that Mr. Taylor could evade this problem because he did not plead guilty to "capital murder as an accomplice." Aplt. App., Vol. XIX at 4812 (Order and Mem. Decision Granting Evid. Hr'g). Under Utah law, however, principal and accomplice liability are theories of guilt, not distinct crimes. Mr. Taylor pleaded guilty to two counts of capital murder—thus, evidence that he committed the crimes as either a principal or an accomplice would have been adequate to prove his guilt. And no doubt exists that he would have been convicted of the murders under at least one of these theories at trial.

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, 113 S.Ct. 853, 122 L.Ed.2d 203 (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, before describing the facts and proceedings that have led to Mr. Taylor's current habeas petition, we provide a brief overview of how a claim of actual innocence operates within the larger context of federal habeas corpus.

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, 126 S.Ct. 2064, 165 L.Ed.2d 1 (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, 111 S.Ct. 2546, 115 L.Ed.2d 640 (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, 126 S.Ct. 2064.

Yet, recognizing the justice concerns that also underlie habeas corpus, the Supreme Court has concluded the door to habeas relief is not always closed because a petitioner procedurally defaulted his claims. Rather, the Supreme Court has allowed courts to consider such claims when it is necessary to avoid a miscarriage of justice. See Schlup v. Delo , 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ("[T]he fundamental miscarriage of justice exception seeks to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case."). Courts apply this miscarriage-of-justice exception when a petitioner can demonstrate that he is actually innocent of the crime of conviction. In these cases, the petitioner's claim of actual innocence does not serve as the basis for granting habeas relief.¹ Instead, the claim of actual innocence is joined with a procedurally defaulted claim to serve as "a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Id. at 315, 115 S.Ct. 851 (internal quotation marks omitted). This exception "is intended for those rare situations where the State has convicted the wrong person of the crime or where it is evident that the law has made a mistake." Beavers v. Saffle , 216 F.3d 918, 923 (10th Cir. 2000) (internal quotation marks omitted; alterations incorporated).

To qualify for the actual innocence exception, the petitioner need not conclusively demonstrate his innocence. See House , 547 U.S. at 538, 126 S.Ct. 2064 ("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, 115 S.Ct. 851. Or, "to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt." House , 547 U.S. at 538, 126 S.Ct. 2064. 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, 115 S.Ct. 851 ("[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 what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors." House , 547 U.S. at 538, 126 S.Ct. 2064.

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, 126 S.Ct. 2064 (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 , 4 F.4th 982, 1031–33 (10th Cir. July 13, 2021) (explaining that, under Schlup , ...