Menzies v. Powell

Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 7, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
___________________________________________
RALPH LEROY MENZIES,
Petitioner - Appellant,
v. No. 19-4042
ROBERT POWELL, Warden of the
Utah State Penitentiary,
Respondent - Appellee.
___________________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:03-CV-00902-CVE-FHM)
____________________________________________
Lindsey Layer, Assistant Federal Public Defender (Jon M. Sands, Federal
Public Defender, and Eric Zuckerman, Assistant Federal Public Defender,
with her on the briefs), Phoenix, Arizona, for Petitioner-Appellant.
Erin Riley, Assistant Solicitor General (Sean D. Reyes, Utah Attorney
General, Andrew F. Peterson and Aaron G. Murphy, Assistant Solicitors
General, with her on the briefs), Salt Lake City Utah, for Respondent-
Appellee.
_____________________________________________
Before HARTZ, BACHARACH, and EID, Circuit Judges.
_____________________________________________
BACHARACH, Circuit Judge.
_____________________________________________
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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
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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 trial 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
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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
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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
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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
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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, 845 P.2d 220,
242 (Utah 1992), and then affirmed his conviction and death sentence,
State v. Menzies, 889 P.2d 393, 396 (Utah 1994). Mr. Menzies sought post-
conviction relief, but the state courts rejected his claims. Menzies v.
Galetka, 150 P.3d 480, 489 (Utah 2006); Menzies v. State, 344 P.3d 581,
588 (Utah 2014).
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:
1. Ineffective assistance of trial counsel in the guilt phase. To
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
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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.
2. Jury instruction on reasonable doubt. Under the Fourteenth
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.
3. Ineffective assistance of counsel in the sentencing phase. At
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 Miranda 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.
5. Introduction of Mr. Menzies’s prison file. The trial court
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
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• 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
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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.
1. Mr. Menzies’s Murder Conviction and Sentence
This case grew out of the 1986 disappearance of Mrs. 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 Mrs. Hunsaker had disappeared, her corpse was found
in a wooded area outside Salt Lake City. Someone had strangled Mrs.
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 scream and then saw
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.
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the man returning to his car. After hearing reports about Mrs. 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 Mrs. Hunsaker’s identification cards, and (3)
Mr. Menzies’s confession to the murder.
First, the police found Mrs. 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.
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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 Mrs. 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 Mrs. Hunsaker. According to the inmate, Mr. Menzies had
admitted cutting her throat.
A jury found Mr. Menzies guilty of capital homicide and aggravated
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.
2. Appellate and Post-Conviction Proceedings
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, 845 P.2d 220, 242
(Utah 1992). Mr. Menzies then appealed on the merits, and the Utah
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Supreme Court affirmed the conviction and sentence. State v. Menzies, 889
P.2d 393, 396 (Utah 1994).
Following the direct appeal, Mr. Menzies sought post-conviction
relief in state court, alleging ineffective assistance of counsel. The state
trial court denied post-conviction relief. The Utah Supreme Court first
remanded for further proceedings, Menzies v. Galetka, 150 P.3d 480, 489
(Utah 2006), and then affirmed the denial of post-conviction relief,
Menzies v. State, 344 P.3d 581, 588 (Utah 2014).
3. Federal Habeas Proceedings
Mr. Menzies sought federal habeas relief, presenting 43 claims. The
district court denied habeas relief, and Mr. Menzies obtained a certificate
of appealability on 9 of the claims. In these 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.
4. Standard of Review
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, 704 F.3d 817, 825 (10th Cir. 2013). In district court, review is
deferential when the state appellate court has rejected a claim on the
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merits. Rainer v. Hansen, 952 F.3d 1203, 1206 (10th Cir. 2020). After the
state appellate court has rejected a claim, the federal district court can
reach the merits only if the state court’s decision was
• 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, 851 F.3d 1047, 1051 (10th Cir. 2017). We first
determine whether the Supreme Court has clearly established the pertinent
constitutional protection. House v. Hatch, 527 F.3d 1010, 1018 (10th Cir.
2008). We then ask whether the state court’s decision was contrary to, or
involved an unreasonable application of, that precedent. Id.Our deference extends not only to the 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 Byrd v. Workman, 645 F.3d 1159,
1171–72 (10th Cir. 2011)). To overcome the state court’s factual findings,
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the petitioner must show that the findings are objectively unreasonable.
Smith v. Aldridge, 904 F.3d 874, 880 (10th Cir. 2018).
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, 551 U.S. 112, 119 (2007) (stating that 28
U.S.C. § 2254(d) provides “precondition[s] to the grant of habeas relief
. . . , not an entitlement to it”); Hancock v. Trammell, 798 F.3d 1002, 1010
(10th Cir. 2015) (“[E]ven when petitioners satisfy the threshold in
§ 2254(d), they must establish a violation of federal law or the federal
constitution.”).
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 Mrs. 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.
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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, 466 U.S. 668(1984).
Under that standard, courts must determine whether the attorneys’
performance was deficient. See Strickland, 466 U.S. at 687. Performance is
deficient when the mistakes are so serious that the attorneys are no longer
serving as “counsel” under the Sixth Amendment. Id. In determining
whether the deficiency rises to this level, the court ordinarily presumes
that counsel’s performance is reasonable and might entail a sound strategy.
Id. at 689.
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.
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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, 556 U.S. 111, 123 (2009). Deference rests on both the
constitutional standard (from Strickland) and the standard for habeas
relief. See id. (“The question ‘is not whether a federal court believes the
state court’s determination’ under Strickland ‘was incorrect but whether
[it] was unreasonable—a substantially higher threshold.’” (quoting Schriro
v. Landrigan, 550 U.S. 465, 473 (2007)) (alteration in original)). Given the
two layers of deference, a court must consider “whether there is any
reasonable argument that counsel satisfied Strickland’s deferential
standard.” Ellis v. Raemisch, 872 F.3d 1064, 1084 (10th Cir. 2017)
(quoting Harrington v. Richter, 562 U.S. 86, 105 (2011) (emphasis in
Ellis)).
5.2 Identification Testimony at Trial
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
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and a woman walking closely together. Mr. Larrabee heard them 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 Mrs. 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.
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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. Menzies)
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. Menzies had failed to present evidence of undue
suggestiveness and
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• trial counsel acted reasonably in pointing out the flaws in Mr.
Larrabee’s testimony rather than seeking suppression.
Menzies v. State, 344 P.3d 581, 616–19 (Utah 2014). The Utah Supreme
Court also found no prejudice based on the failure to show a likely
difference in the outcome without the testimony on the photo array. Id. at
619.
For Mr. Larrabee’s identification of Mr. Menzies following the
lineup, the Utah Supreme Court observed 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 court, 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, 390 U.S. 377,
384 (1968).
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5.4.1 The Photo Arrays
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, 344 P.3d 581, 618 (Utah 2014).
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
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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.
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, 142 S. Ct. 1718, 1731–32 (2022) (“[T]he federal
[habeas] court may review the claim based solely on the state-court
record.”).
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Mr. Menzies failed to preserve this argument by omitting it in
district court. See Harris v. Sharp, 941 F.3d 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.”). 4
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, 428 F.3d 491, 504 (3d Cir. 2005).
Appellant’s Opening Br. at 21. There the Third Circuit found trial counsel
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, 798 F.3d 1002, 1011 (10th Cir.
2015) (declining to consider a forfeited habeas claim because the petitioner
had not urged plain error).
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.
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ineffective for failing to move to suppress or object to a suggestive
identification after a witness had testified “that he would not have made
the identification if the detective had not strongly suggested that the two
pictures highlighted were of the perpetrators.” Thomas, 428 F.3d at 504.
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, 800 F.3d 1195, 1204–05 (10th Cir. 2015) (upholding the
introduction of identification testimony based on a photo array even though
the law-enforcement officers had allegedly failed to provide the witnesses
with admonitions required by department policy); accord United States v.
Carr, 761 F.3d 1068, 1076 (9th Cir. 2014) (concluding that identification
testimony wasn’t undermined by a police officer’s failure to admonish a
witness that the photos might not have included pictures of the suspect).
Given this precedent, the Utah Supreme Court could reasonably conclude
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that Mr. Menzies’s attorneys hadn’t acted deficiently by declining to
challenge the lack of an admonition from the police.
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, 344 P.3d 581, 619 (Utah 2015).
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.
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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,
29 P.3d 638, 647 (Utah 2001) (stating that the court would not assume the
appellant’s burden of arguing and researching an appellant’s contention).
He argued only that the defense attorney had a “good chance” of
persuading the trial court to strike the testimony of Mr. Larrabee, whom
Mr. Menzies called the State’s “star witness.” Appellant’s Opening Br. at
97, Menzies v. State, No. 20120290-SC (Utah Feb. 14, 2013). The Utah
Supreme Court rejected this conclusory assertion of prejudice, observing
that Mr. Menzies had just “restate[d] the basic prejudice standard and
provide[d] no analysis regarding why” he thought that an objection stood a
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“good chance” of succeeding. Menzies v. State, 344 P.3d 581, 619 (Utah
2014).
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., 952 F.3d 1242, 1249 (10th Cir.
2020) (concluding that we review the reasonableness of a state court’s
decision “in light of the arguments” that the petitioner had presented in
state court).
5.4.2 The Lineup
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. See Harris v. Sharp, 941 F.3d 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.”). Mr. Menzies doesn’t deny the omission of these allegations from
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his habeas petition. He instead says that (1) he alleged irregularities in the
lineup and (2) “the lineup photo was part of the state court record.”
Appellant’s Reply Br. at 4. But the district court had no duty to scour the
state-court record in search of a habeas theory. So Mr. Menzies waived or
forfeited these contentions by omitting them in his habeas petition.
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, 380 F.3d 932, 975 (6th Cir. 2004) (concluding that a habeas
petitioner had failed to show prejudice on a claim of ineffective assistance
because the trial court had instructed the jury to disregard the testimony).
We ordinarily presume that jurors follow instructions, Richardson v.
Marsh, 481 U.S. 200, 211 (1987), and Mr. Menzies doesn’t say why we
should reject that presumption here. With no such reason, we conclude that
the Utah Supreme Court acted reasonably in rejecting Mr. Menzies’s
conclusory assertion of prejudice.
5.4.3 The Identification of Objects
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.
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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., 952 F.3d 1242, 1249 (10th Cir. 2020) (“[U]nder
Section 2254(d), we review the reasonableness of a state court’s decision
in light of the arguments the petitioner raised in the state court.”).
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. 20120290-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.
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E.g., Pohl, Inc. of Am. v. Webelhuth, 201 P.3d 944, 952–53 (Utah 2008)
(failure to develop an argument beyond the statement of facts); Anderson v.
Taylor, 149 P.3d 352, 359 (Utah 2006) (declining to consider a request
consisting of two conclusory sentences in a footnote); see also Allen v.
Friel, 194 P.3d 903, 907–08 (Utah 2008) (stating that a brief is inadequate
when it cites authority without developing or analyzing it based on that
authority).
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,
63 F.3d 926, 931–32 (9th Cir. 1995). Mr. Menzies supplied the Utah
Supreme Court with no other legal authority for his challenge to the
testimony identifying his car. Mr. Menzies also failed to support his
challenge with any factual basis, stating only that the police had
• 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
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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, 63 F.3d 926, 932
(9th Cir. 1995) (“There is no authority holding that a defendant’s due
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process right to reliable identification procedures extends beyond normal
authenticity and identification procedures for physical evidence offered by
the prosecution.”); see also Johnson v. Ross, 955 F.2d 178, 181 (2d Cir.
1992) (“[I]dentification of clothing is not a procedure so inherently
‘conducive to irreparable mistaken identification’ as to provide the basis
for a denial of due process.” (quoting Foster v. California, 394 U.S. 440,
442 (1969))); Inge v. Procunier, 758 F.2d 1010, 1015 (4th Cir. 1985)
(stating that identification of a truck isn’t “governed by the constitutional
limitations that control the identification of a defendant”). With no legal
basis to question the admissibility of Mr. Larrabee’s testimony, the Utah
Supreme Court acted reasonably in rejecting the challenge.
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
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, 344 P.3d 581, 617–19 (Utah
2014).
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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, 344 P.3d 581,
617 (Utah 2014).
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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
7
Mr. Menzies contends that Wood mischaracterized a Supreme Court
opinion (Williams v. Taylor, 529 U.S. 362 (2000)). But we are bound by
Wood irrespective of its correctness. See United States v. Walling, 936
F.2d 469, 472 (10th Cir. 1991) (“One panel of the court cannot overrule
circuit precedent.”).
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“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
5.5 Failure to Challenge the Testimony of Walter Britton
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 Mrs. 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 Mrs.
Hunsaker’s throat, adding: “It is possible that Mr. Menzies may not have
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.
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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. Britton 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, 344 P.3d 81, 615–16 (Utah 2014).
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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.
5.5.2 Mental-Health Evidence
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
9
Three other pieces of evidence suggested that Mr. Britton may have
been mentally ill: (1) the docket in Mr. Britton’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.
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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,
925 P.2d 598, 601 n.2 (Utah Ct. App. 1996). This showing requires a
demonstration that the mental illness “affects the witness’s ability to
accurately perceive, recall, and relate events” because “[not] all mental
disorders affect a person’s credibility.” Id. at 600.
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. See
Wellmon v. Colo. Dep’t of Corrs., 952 F.3d 1242, 1249 (10th Cir. 2020).
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.
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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.
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.
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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
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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
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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 could 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.
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.
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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.
5.5.4 Mr. Benitez’s Statement
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 suggests 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
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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, 566 U.S. 1(2012).
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, 137 S. Ct. 2058 (2017), the Supreme Court made clear that
Martinez will not be extended to claims of ineffective assistance of post-
conviction counsel for failing to raise the ineffective assistance of
appellate counsel claims.” R. vol. I, at 1234–35. So Mr. Menzies was
procedurally barred from raising “anything to do with the failure to
investigate . . . Benitez.” Id. at 1235.
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, 137 S. Ct. 2058 (2017) to reject his Martinez argument.
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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.” 137 S. Ct. at 2063 (emphasis added). For claims of
ineffective assistance of trial counsel, we may assume for the sake of
argument that Martinez applies. See Martinez v. Ryan, 566 U.S. 1, 8 (2012)
(“Inadequate assistance of counsel at initial-review collateral proceedings
may establish cause for a prisoner’s procedural default of a claim of
ineffective assistance at trial.”).
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, 6 F.4th 1235, 1243 (10th Cir. 2021) (discussing
Martinez). We assume (without deciding) that Mr. Menzies has satisfied
the first Martinez requirement, but conclude that he cannot satisfy the
second one.
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
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• 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 effect. See 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, 43 P.3d 467, 468–
69 (Utah 2002). Here some of the same attorneys had represented Mr.
Menzies at trial and on appeal. So we may assume satisfaction of the first
Martinez requirement.
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
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and prejudice. Davis v. Sharp, 943 F.3d 1290, 1299 (10th Cir. 2019). Both
are lacking here.
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, 466 U.S. 668, 687–88 (1984) (“When a convicted defendant
complains of the ineffectiveness of counsel’s assistance, the defendant
must show that counsel’s representation fell below an objective standard of
reasonableness.”). But trial counsel need “not interview every possible
witness to have performed proficiently.” Young v. Sirmons, 486 F.3d 655,
680 (10th Cir. 2007) (quoting Owens v. United States, 483 F.3d 48, 69 (1st
Cir. 2007)). When other sources of information exist, we have regarded
trial counsel’s decision not to interview a particular witness as a
reasonable exercise of professional judgment. See United States v. Snyder,
787 F.2d 1429, 1433 (10th Cir. 1986); accord Eggleston v. United States,
798 F.2d 374, 376 (9th Cir. 1986) (“A claim of failure to interview a
witness . . . cannot establish ineffective assistance when the person’s
account is otherwise fairly known to defense counsel.” (quoting United
States v. Decoster, 624 F.2d 196, 209 (D.C. Cir. 1976) (en banc))).
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
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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, 557 F.3d 534, 539 (7th Cir. 2009) (per
curiam) (“[T]his court has held that no constitutional rule forbids lawyers
from relying on interviews conducted by the police when deciding whether
additional inquiries are in order.”).
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, 466 U.S. 668, 669 (1984). A
reasonable probability of a different result is lacking here.
Mr. Benitez waited 28 years before retracting the 1986 statement, 12
and Mr. Menzies presents no reason to think that Mr. Benitez would have
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,
563 U.S. 170, 181 (2011) (“[R]eview under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim on the
merits”). Mr. Menzies does not reply to this argument. But he apparently
assumes that he could use the declaration to show cause for a procedural
default. Because Mr. Benitez’s declaration doesn’t establish
ineffectiveness of post-conviction counsel, we need not decide whether a
newly submitted declaration could prevent a procedural default. Cf. Shinn
v. Ramirez, 142 S. Ct. 1718, 1737–38 (2022) (discussing the applicability
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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, 889 P.2d 393, 401 (Utah 1994) (observing that there was
“substantial evidence linking Menzies to the homicide”). So even if trial
counsel had interviewed Mr. Benitez and obtained a retraction, Mr.
Menzies has not established a reasonable probability of an acquittal.
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.
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5.5.4.2 Merits
The claim involving 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, 323 F.3d 825, 830 (10th Cir. 2003) (“When state courts have
not adjudicated a petitioner’s claim on the merits, the AEDPA standards do
not apply . . . .”). But Mr. Menzies does bear the burden of showing a right
to habeas relief based on a preponderance of the evidence. Beeler v.
Crouse, 332 F.2d 783, 783 (10th Cir. 1984) (per curiam). In our view, Mr.
Menzies did not show by a preponderance of the evidence that trial
counsel’s representation was either deficient or prejudicial.
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
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• 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 law-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
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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.
6.1 Reasonableness of the Utah Supreme Court’s Decision
The Utah Supreme Court summarily rejected these claims. State v.
Menzies, 889 P.2d 393, 406 (Utah 1994). So we must independently review
the record and federal law to determine whether the Utah Supreme Court’s
result “contravenes or unreasonably applies clearly established federal
law” according to the Supreme Court. Aycox v. Little, 196 F.3d 1174, 1178
(10th Cir. 1999).
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6.1.1 Substantial Doubt
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, 498 U.S. 39(1990) (per curiam), and Monk v. Zelez, 901 F.2d 885(10th Cir. 1990) (per
curiam). In Cage, the Supreme Court found error in a jury instruction that
had equated reasonable doubt with (1) “such doubt as would give rise to a
grave uncertainty” and (2) “an actual substantial doubt” rather than “a
mere possible doubt.” 498 U.S. at 40–41. In Monk, we found error in an
instruction’s description of reasonable doubt as “a substantial honest,
conscientious doubt.” 901 F.2d at 889–91. 14
After Cage and Monk, however, the Supreme Court addressed a
similar issue in Victor v. Nebraska, 511 U.S. 1 (1994). There the Court
“made it clear that Cage was a narrow decision.” Wansing v. Hargett, 341
F.3d 1207, 1213 (10th Cir. 2003) (discussing Victor). In Victor, the trial
court instructed the jury that a reasonable doubt “is an actual and
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, 347 F.3d 860, 863 (10th Cir.
2003) (stating that “an absolute prerequisite for petitioner’s claim is that
the asserted constitutional right on which it rests derive in clear fashion
from Supreme Court precedent”). So a petitioner cannot satisfy
§ 2254(d)(1) based on a departure from our opinion in Monk. See Welch v.
City of Pratt, 214 F.3d 1219, 1223 (10th Cir. 2000) (concluding that the
petitioner’s claim couldn’t satisfy § 2254(d)(1) because it rested on our
opinion rather than the Supreme Court’s).
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substantial doubt,” but not “a doubt arising from mere possibility, from
bare imagination, or from fanciful conjecture.” 511 U.S. at 18.
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.
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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,
348 F.3d 902, 913 (10th Cir. 2003) (stating that our prior opinion is
relevant because it could serve as a guide in determining the
reasonableness of a state supreme court’s application of Supreme Court
case law); accord 2 Randy Hertz & James S. Liebman, Federal Habeas
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Corpus Practice & Procedures § 32.3 (7th ed. 2021) (stating that “circuit
precedents . . . can shed light on the ‘reasonableness’ of the state court’s
application of existing Supreme Court precedents”).
6.1.2 Willingness to Act
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, 952 F.3d 1242,
1249 (10th Cir. 2020).
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, 774 P.2d 1141, 1148 (Stewart, J., concurring)). Mr. Menzies
offered no authority from the United States Supreme Court supporting his
challenge to the willingness-to-act language. Without meaningful input
from Mr. Menzies, the state supreme court reasonably applied United
States Supreme Court precedent to reject Mr. Menzies’s claim.
We too have addressed the same language in the same jury
instruction. Tillman v. Cook, 215 F.3d 1116, 1126–27 (10th Cir. 2000).
There we concluded that the jury instruction had “correctly conveyed the
concept of reasonable doubt to the jury.” Id. at 1127. In light of our own
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decision upholding the same language in the same jury instruction, we
regard the state supreme court’s decision as reasonable. See pp. 55–56,
above.
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.” 348 U.S. 121, 140
(1954) (citation omitted). But the Court held that when the jury
instructions were read as a whole, they couldn’t have misled the jury. Id.So Holland does not undermine the reasonableness of the Utah Supreme
Court’s consideration of the jury instruction on a willingness to act. See
Waine v. Sacchet, 356 F.3d 510, 516 (4th Cir. 2004) (“Holland did not
fault the instruction given to the extent of finding error, let alone find a
violation of the Due Process Clause.”); Ramirez v. Hatcher, 136 F.3d 1209,
1214 (9th Cir. 1998) (“[N]either the Supreme Court nor any circuit has
invalidated an instruction which includes the willingness to act
terminology where ‘the charge, taken as a whole, fairly and accurately
conveys the meaning of reasonable doubt.’” (quoting United States v.
Robinson, 546 F.2d 309, 314 (9th Cir. 1976))). The Utah Supreme Court’s
rejection of Mr. Menzies’s challenge to the jury instruction on reasonable
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doubt was thus not contrary to or an unreasonable application of clearly
established federal law as determined by the United States Supreme Court.
6.2 Absence of a Constitutional Violation
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, 551 U.S. 112, 119 (2007) (stating
that § 2254(d)(1) “sets forth a precondition to the grant of habeas relief
. . . , not an entitlement to it.”). “[E]ven when petitioners satisfy the
threshold in § 2254(d), they must establish a violation of federal law or the
federal constitution.” Hancock v. Trammell, 798 F.3d 1002, 1010 (10th Cir.
2015).
Our court has rejected virtually identical challenges to the same
instruction. Tillman v. Cook, 215 F.3d 1116, 1123–27 (10th Cir. 2000).
Addressing the phrase “substantial doubt,” we stated that “[l]ike the
instruction in Victor, but unlike the Cage and Monk instructions, [the
petitioner’s] instruction distinguishes a ‘real substantial doubt’ from ‘one
that is merely possible or imaginary.’” Id. at 1125. We recognized use of
the problematic phrase “willing to act,” but we reasoned that “the cases
have not held ‘willing to act language’ to be reversible error in itself.” Id.
at 1127. So we held that “taken as a whole, the instruction correctly
conveyed the concept of reasonable doubt to the jury.” Id.58
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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, 344 P.3d 581, 622–31 (Utah
2014), and this conclusion reflected a reasonable application of Supreme
Court precedent and the record.
7.1 The Evidence Presented in State Court
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
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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,
479 U.S. 538, 541 (1987) (“[T]he capital defendant generally must be
allowed to introduce any relevant mitigating evidence regarding his
‘character or record and any of the circumstances of the offense.’” (quoting
Eddings v. Oklahoma, 455 U.S. 104, 110 (1982))).
7.2 Mr. Menzies’s Theories of Ineffectiveness
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.
7.3 The Attorney’s Duty to Investigate
Attorneys act deficiently when they fail to conduct a “thorough
investigation—in particular, of mental health evidence—in preparation for
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the sentencing phase of a capital trial.” Hooks v. Workman, 689 F.3d 1148,
1201 (10th Cir. 2012) (quoting Wilson v. Sirmons, 536 F.3d 1064, 1083
(10th Cir. 2008), reinstated sub nom. Wilson v. Workman, 577 F.3d 1284(10th Cir. 2009) (en banc)). The representation becomes prejudicial if
additional mitigation evidence would have created a reasonable probability
of a sentence other than the death penalty. Id.
7.4 Bar to Considering Evidence Presented in Federal Court
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, 563 U.S. 170, 186 (2011). In the district court’s view,
a procedural bar prevented consideration of evidence if it hadn’t been
presented in state court. See R. vol. I, at 1276–77.
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
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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, 566 U.S. 1 (2012) and Trevino v. Thaler, 569
U.S. 413 (2013). Applying Martinez and Trevino, Mr. Menzies asserts that
he established cause to overcome a procedural default because
• 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, 692 F.3d 1133, 1147–
48 (10th Cir. 2012) (Gorsuch, J.).
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
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.
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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, 535 U.S. 162, 172 n.5 (2002).
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.
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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.
7.5 Delayed Investigation of the Mitigating Evidence
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,
344 P.3d 581, 625 (Utah 2014). Mr. Menzies attacks this reasoning,
contending that trial counsel should have interviewed other family
members, particularly Mr. Menzies’s father and stepparents. According to
Mr. Menzies, those family members could have provided insights far
beyond the sister’s testimony about the father’s abuses.
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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 627. 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.
7.6 Failure to Investigate Other Mitigating Evidence
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
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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, 344 P.3d 581, 626 (Utah 2014)
(alteration in original) (emphasis added). The mitigation specialist did not
explain the possibility of molestation or identify any supporting evidence.
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
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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, 344 P.3d 581, 628 (Utah
2014). Reasonable jurists might have reached a different conclusion, but
Mr. Menzies does not show how we could regard the Utah Supreme Court’s
conclusions as unreasonable.
7.7 Failure to Present Evidence of Organic Brain Damage
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
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to a neuropsychological 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, 344 P.3d 581, 629 (Utah 2014).
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
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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 complains 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, 886 F.3d 874, 924–25 (10th Cir. 2018) (rejecting an ineffective-
assistance claim in part because additional evidence of organic brain
damage “could have been in tension with the mitigation case and had a
double-edged effect”). After all, Mr. Menzies hasn’t suggested the
possibility of treating his alleged organic brain damage with medication.
See Grant, 886 F.3d at 923 (concluding that the state appeals court could
reasonably consider the mitigation value of organic brain damage as
“significantly weakened” by the lack of any evidence that the negative
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manifestations would have been “treatable with medication or other such
means”).
** *
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
16
Mr. Menzies also refers to psychiatric reports in
• February 1973,
• February 1976, and
• March 1976.
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• presented diagnoses, prognoses, and recommendations for
treatment.
Mr. Menzies complains that the State used these records even though the
mental-health professionals 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, 10 P.3d 346, 350 (Utah 2000).
But here, the court rejected Mr. Menzies’s challenge to the admission of
the prison file without discussing the issue. See State v. Menzies, 889 P.2d
393, 406 (Utah 1994) (concluding that “[w]e find Menzies’s other claims
But the habeas petition doesn’t mention these reports.
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.
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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, 560 F.3d 1156, 1168 (10th Cir. 2009)
(per curiam) (“In situations like this one [when the court cannot determine
whether a state court ruling was on the merits], our cases require us to
assume that the state’s review is on the merits and thus afford it § 2254(d)
deference.”).
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
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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, 532 U.S. 782 (2001). The Penry Court observed that
• 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, 451 U.S. at 466). In Penry, the petitioner
challenged the admission at sentencing of a psychiatrist’s opinions from an
earlier proceeding. Id. at 793. For this challenge, the petitioner in Penry
cited Estelle, arguing that it required exclusion of the psychiatrist’s
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opinions in the absence of Miranda warnings. Id. at 793–94. The Supreme
Court disagreed, distinguishing Estelle. Id. at 794.
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, 565 U.S. 499, 508–09 (2012). Mr.
Menzies alleges a custodial interrogation because he was evaluated while
confined on criminal charges. But the United States Supreme Court has
considered “custody” a term of art referring to circumstances that are
thought generally to present “a serious danger of coercion.” Id. “[S]ervice
of a term of imprisonment, without more, is not enough to constitute
Miranda custody.” Id. at 512.
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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, 496 F.3d 430 (5th Cir. 2007). There the
court concluded that Miranda does not apply to mental-health evaluations,
reasoning that
• 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, 451 U.S. 454, 467–69 (1981)).
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, 585 F.3d 1328, 1335 n.3
(10th Cir. 2007) (“The exclusionary rule does not bar the admission of the
fruits of an illegal search at sentencing unless the illegal search was
conducted with the intent to obtain evidence that would increase the
defendant’s sentence.”); United States v. Salazar, 38 F. App’x 490, 495–96
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(10th Cir. 2002) (unpublished) (concluding that “even if we assume that
[the defendant’s] statements to [law enforcement agents] were obtained in
violation of his Fifth Amendment rights, the district court did not err in
considering them at sentencing”); accord United States v. Nichols, 438
F.3d 437, 442 (4th Cir. 2006) (“[S]tatements obtained in violation of
Miranda, if they are otherwise voluntary, may generally be considered at
sentencing.”). Because we’ve held that federal law doesn’t require
application of the exclusionary rule in the sentencing phase, we can’t
question the reasonableness of the Utah Supreme Court’s disposition of the
Miranda claim. See Mollett v. Mullin, 348 F.3d 902, 913 (10th Cir. 2003)
(stating that our prior opinion is relevant because it could serve as a guide
in determining the reasonableness of a state court’s application of Supreme
Court case law); see also 2 Randy Hertz & James S. Liebman, Federal
Habeas Corpus Practice & Procedures § 32.3 (7th ed. 2021) (stating that
“circuit precedents . . . can shed light on the ‘reasonableness of the state
court’s application of existing Supreme Court precedents’”).
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.
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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 Supreme Court, our court and
other circuit courts have declined to apply the Confrontation Clause in the
sentencing phase. See Carter v. Bigelow, 787 F.3d 1269, 1294 (10th Cir.
2015) (rejecting a habeas challenge to the admission of out-of-court
statements, reasoning that “[t]he Supreme Court has never held that the
Confrontation Clause applies at a capital sentencing”); United States v.
Fields, 483 F.3d 313, 335 (5th Cir. 2007) (“Neither the text of the Sixth
Amendment nor the history of murder trials supports the extension of the
Confrontation Clause to testimony relevant only to penalty selection in a
capital case.”); United States v. Harmon, 721 F.3d 877, 888 (7th Cir. 2013)
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(“The Confrontation Clause does not apply at sentencing.”); United States
v. Egge, 223 F.3d 1128, 1132 (9th Cir. 2000) (“In making factual
determinations, a sentencing judge is generally not restricted to evidence
that would be admissible at trial.”); Chandler v. Moore, 240 F.3d 907, 918
(11th Cir. 2001) (“[H]earsay evidence is admissible at a capital
sentencing.”); see also John G. Douglass, Confronting Death: Sixth
Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967, 1980
(2005) (“The [United States Supreme] Court has never said that the right to
‘deny or explain’ sentencing information includes . . . the right to see,
hear, and cross-examine the sources of that information.” (quoting Gardner
v. Florida, 430 U.S. 349, 362 (1977) (plurality opinion))). Given these
opinions by our court and other circuit courts, we do not question the
reasonableness of the Utah Supreme Court’s application of clearly
established federal law to reject Mr. Menzies’s Sixth Amendment claim.
See Mollett v. Mullin, 348 F.3d 902, 913 (10th Cir. 2003) (stating that our
prior opinion is relevant because it could serve as a guide in determining
the reasonableness of a state court’s application of Supreme Court case
law); see also 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus
Practice & Procedures § 32.3 (7th ed. 2021) (stating that “circuit
precedents . . . can shed light on the reasonableness of the state court’s
application of existing Supreme Court precedents”).
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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, 430 U.S. 349 (1977), and Townsend v. Burke,
334 U.S. 736 (1948). But these cases differed from ours.
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. 334 U.S. 736,
741. There the defendant had been sentenced based on untrue assumptions
about his criminal record. Id. Because the trial judge had not allowed the
defendant to challenge the erroneous information, the United States
Supreme Court found a denial of due process. Id.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
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introduction of the documents hadn’t denied due process to Mr. Menzies.
See United States v. Lewis, 910 F.2d 1367, 1373 (7th Cir. 1990)
(concluding that prison records were admissible at sentencing because the
sentencing court could “consider a wide variety of information, including
hearsay”). 18
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.
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, 889 P.2d 393, 408 (Utah 1994) (Stewart. J.,
dissenting). But clearly established federal law consists of decisions by the
United States Supreme Court, not the Utah Supreme Court. See Littlejohn
v. Trammell, 704 F.3d 817, 825 (10th Cir. 2013) (stating that clearly
established federal law hinges on the United States Supreme Court’s
holdings). So the Utah Supreme Court’s dissent doesn’t suggest a failure to
reasonably apply clearly established federal law.
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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
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.
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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, 648 P.2d 71, 79 (Utah
1982); see Utah Stat. Ann. § 76-3-207(1) (1982).
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
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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.
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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, 889 P.2d 393, 406 (1994) (“We find
Menzies’ other claims to be without merit.”). “[U]nder Section 2254(d), we
review the reasonableness of a state court’s decision in light of the
arguments the petitioner raised in the state court.” Wellmon v. Colo. Dep’t
of Corrs., 952 F.3d 1242, 1249 (10th Cir. 2020).
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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, 889 P.2d 393, 397 (Utah 1994).
We addressed the sufficiency of statutory notice in Andrews v.
Shulsen, 802 F.2d 1256 (10th Cir. 1986). There we squarely held that
Utah’s statutory list of aggravating circumstances had provided
constitutionally adequate notice. Id. at 1263 n.4. In Andrews, a Utah
petitioner had been sentenced to death. Id. at 1259. He sought habeas
relief, alleging that the State should have included the aggravating
circumstances in the documents constituting the murder charges. Id. at
1263 n.4. We rejected this allegation: “[The habeas petitioner] could have
requested a bill of particulars but failed to do so. In any event, statutory
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notice of aggravating circumstances satisfies constitutional requirements
under the Due Process Clause.” Id. Other circuits have also rejected similar
arguments involving notice of aggravating circumstances. See Clarke v.
Dugger, 834 F.2d 1561, 1566 (11th Cir. 1987) (concluding that“[i]t is well
established under Florida law that a defendant has no right to advance
notice of the aggravating circumstances on which the State will rely” and
the state statute’s list of aggravating circumstances had satisfied the
constitutional requirements); Spinkellink v. Wainwright, 578 F.2d 582,
609–10 (5th Cir. 1978) (concluding that a statutory list of aggravating
circumstances provided adequate notice to a defendant facing a possible
death sentence).
Given our own approach to notice, we can hardly view the Utah
Supreme Court’s identical approach as unreasonable. See Mollett v. Mullin,
348 F.3d 902, 913 (10th Cir. 2003) (stating that our prior opinion is
relevant because it could serve as a guide in determining the
reasonableness of a state supreme court’s application of Supreme Court
case law); accord 2 Randy Hertz & James S. Liebman, Federal Habeas
Corpus Practice & Procedures § 32.3 (7th ed. 2021) (stating that “circuit
precedents . . . can shed light on the ‘reasonableness’ of the state court’s
application of existing Supreme Court precedents”).
Confronting our precedent, Mr. Menzies argues that
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• 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, 578 F.2d 582 (5th Cir. 1978). To Mr. Menzies,
this observation became significant when a newly created Eleventh Circuit
allegedly said that the United States Supreme Court’s opinion in Godfrey v.
Georgia, 446 U.S. 420 (1980), had overruled Spinkellink. But the Eleventh
Circuit said only that Godfrey had superseded Spinkellink’s language
“precluding federal courts from reviewing state courts’ application of
capital sentencing criteria.” Proffitt v. Wainwright, 685 F.2d 1227, 1261
n.52 (11th Cir. 1982). The Eleventh Circuit did not address Spinkellink’s
language about notice. Spinkellink aside, nothing suggests abrogation of
Andrews, which is our precedent.
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,
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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, 462 U.S. 862, 878–79 (1983); see also
Buchanan v. Angelone, 522 U.S. 269, 275–76 (1998). 20
At the eligibility phase, the prosecution charged 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, 704 F.3d 817, 825 (10th
Cir. 2013) (stating that clearly established federal law hinges on the United
States Supreme Court’s holdings). In the absence of “clearly established
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.
522 U.S. at 275–76.
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federal law,” Mr. Menzies cannot obtain habeas relief. See House v. Hatch,
527 F.3d 1010, 1021 (10th Cir. 2008) (“Absent controlling Supreme Court
precedent, it follows ineluctably that the New Mexico Supreme Court’s
decision to uphold the venue transfer cannot be either ‘contrary to, or [] an
unreasonable application of clearly established Federal law.’” (quoting 28
U.S.C. § 2254(d)(1))). So Mr. Menzies is not entitled to habeas relief on
this claim. See id. at 1018 (“The absence of clearly established federal law
is dispositive under § 2254(d)(1).”).
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., 540 F.3d 1143, 1148 n.3 (10th
Cir. 2008) (stating that a single fleeting sentence in an appellate brief “is
too inadequately developed to be meaningfully addressed and is deemed
waived” (quoting United States v. Martinez, 518 F.3d 763, 768 (10th Cir.
2008))).
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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, 648 P.2d 71, 83–84 (Utah 1982). The trial court made that
comparison and decided on the death penalty. See Original Trial Tr. at
3268, 3270 (finding that “the aggravating circumstances outweigh the
mitigating circumstances beyond a reasonable doubt” and warrant the death
penalty). Mr. Menzies cites nothing to require findings on each aggravating
factor at the selection stage.
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
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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, 889 P.2d 393, 405 (Utah 1994). Without discussion, the
court rejected Mr. Menzies’s challenge to the aggravating circumstance for
pecuniary gain. Id. at 406 (“We find Menzies’s other claims to be without
merit.”).
In our view, the Utah Supreme Court acted reasonably. We reject Mr.
Menzies’s challenges.
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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 aggravating 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, 780 P.2d 1203 (Utah 1989). There the court
concluded that this aggravating circumstance could satisfy the Constitution
only if the defendant had
• 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, 889 P.2d 393, 405 (Utah 1994). For this
conclusion, the court explained that
• 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 prosecutor’s statement had not referred to § 76-5-202-1(q),
and
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• 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) Someone had strangled Mrs. Hunsaker and cut her
throat with a sharp object, and (2) the medical examiner had testified that
the cutting of Mrs. 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
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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, 780 P.2d 1203, 1217 (Utah 1989)
and discussing Godfrey v. Georgia, 446 U.S. 420 (1980)). But Mr. Menzies
didn’t acknowledge the distinction between the eligibility and selection
phases. See Buchanan v. Angelone, 522 U.S. 269, 275–76 (1998)
(discussing these two phases).
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, 512 U.S. 967, 973, 983
(1994). In the selection phase, the factfinder determines whether to impose
the death penalty on an eligible defendant. Buchanan, 522 U.S. at 275–76.
In this phase, the court ordinarily broadens the inquiry to consider
“relevant mitigating evidence so as to assure an assessment of the
defendant's culpability.” Tuilaepa, 512 U.S. at 973, 983.
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.
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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, 446 U.S. 420 (1980). In Godfrey, the jury
had been instructed on one overly broad aggravator and imposed a death
sentence. Id. at 426. Unlike Mr. Menzies, the Godfrey defendant faced the
disputed aggravating circumstance before he was deemed eligible for the
death penalty. Id.Mr. Menzies also relies on Maynard v. Cartwright, 486 U.S. 356(1988). But there too, the trial court didn’t provide a separate phase for the
jury to decide eligibility for the death penalty. See id. at 358–59.
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, 889 P.2d 393, 405 (Utah 1994). In our view, the
court’s conclusion on plain error didn’t implicate any precedents from the
United States Supreme Court. Without such precedents, this claim fails for
lack of clearly established federal law. See House v. Hatch, 527 F.3d 1010,
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1018 (10th Cir. 2008) (“The absence of clearly established federal law is
dispositive under § 2254(d)(1).”). 21
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, 850 P.2d 1232, 1248 (Utah 1993)). We thus conclude that the
Utah Supreme Court did not ignore the mitigating factors.
10.2 Sufficiency of the Evidence on Aggravating Circumstances
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., 540 F.3d 1143, 1148
n.3 (10th Cir. 2008) (stating that a single fleeting sentence in an appellate
brief “is too inadequately developed to be meaningfully addressed and is
21
The Utah Supreme Court also concluded that any error in considering
this aggravating circumstance would have been harmless. State v. Menzies,
889 P.2d 393, 405 (Utah 1994). In challenging this conclusion, Mr.
Menzies argues that Utah Supreme Court applied the wrong standard in
evaluating harmlessness. But Mr. Menzies has not shown a violation of
clearly established federal law in the consideration of this aggravating
circumstance. So we need not address Mr. Menzies’s challenge to the Utah
Supreme Court’s decision on harmlessness.
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deemed waived” (quoting United States v. Martinez, 518 F.3d 763, 768
(10th Cir. 2008))). Even if Mr. Menzies hadn’t waived the argument,
though, we’d reject it.
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 Mrs. 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 prevent 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
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• 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, 76 F.3d 1097, 1111 (10th Cir. 1996). Under our case law,
double counting occurs if one factor “necessarily subsumes” another.
Cooks v. Ward, 165 F.3d 1283, 1289 (10th Cir. 1998) (quoting United
States v. McCullah, 76 F.3d 1087, 1111 (10th Cir. 1996)).
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).
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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, 527 U.S. 373, 398
(1999). With no Supreme Court case law condemning the double counting
of aggravating circumstances, Mr. Menzies cannot obtain habeas relief on
this challenge. See House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008)
(“The absence of clearly established federal law is dispositive under
§ 2254(d)(1).”).
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.
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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.
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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, 845 P.2d 200, 224 (Utah 1992).
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
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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, 845 P.2d 220, 228–29 (Utah 1992).
11.4 The Utah Supreme Court’s decision was not based on an
unreasonable application of clearly 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
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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 Evitts v. Lucey, 469 U.S. 387,
393 (1985).
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, 369 U.S. 438,
446 (1962)). But a record of sufficient completeness does not necessarily
mean a verbatim transcript. Mayer v. City of Chicago, 404 U.S. 189, 194
(1971). “Alternative methods of reporting trial proceedings are permissible
if they place before the appellate court an equivalent report of the events at
trial from which the appellant’s contentions arise.” Draper, 372 U.S. at
495. When the appellate arguments create a “colorable need for a complete
transcript,” the State must show that something less (like part of a
transcript or an alternative) would suffice. Mayer, 404 U.S. at 195.
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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, 596 F. App’x 696, 699–
700 (10th Cir. 2014) (unpublished); Harden v. Maxwell, No. 00-7032, 2000
WL 1208320, at *1 (10th Cir. 2000) (unpublished). Other circuits have also
required habeas petitioners to show prejudice from errors in the trial
transcript. Higginbotham v. Louisiana, 817 F.3d 217, 222 (5th Cir. 2016)
(per curiam); White v. State of Fla., Dep’t of Corrs., 939 F.2d 912, 914
(11th Cir. 1991); Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986);
Mitchell v. Wyrick, 698 F.2d 940, 941–42 (8th Cir. 1983). Given these
opinions from our court and others, we can’t question the reasonableness
of the state court’s requirement for Mr. Menzies to show prejudice. See
Mollett v. Mullin, 348 F.3d 902, 913 (10th Cir. 2003) (stating that our prior
opinion is relevant because it could serve as a guide in determining the
reasonableness of a state supreme court’s application of Supreme Court
case law); accord 2 Randy Hertz & James S. Liebman, Federal Habeas
Corpus Practice & Procedures § 32.3 (7th ed. 2021) (stating that “circuit
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precedents . . . can shed light on the ‘reasonableness’ of the state court’s
application of existing Supreme Court precedents”).
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, 885 F.2d 646, 648
(9th Cir. 1989). Challenging the prejudice requirement, Mr. Menzies points
to Mayer v. City of Chicago, where the Supreme Court addressed the
failure to provide a criminal defendant with any transcript. 404 U.S. 189,
190, 198 (1971).
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, 302 F.3d 598, 604 (6th Cir. 2002). Instead, when part of a transcript
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is missing, habeas relief is warranted only if the petitioner shows
prejudice. Id.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.
11.5.1 Reliance on the Docketing Statement
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
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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 developments in his direct
appeal. The Utah Supreme Court addressed the transcription errors before
turning to other issues. See State v Menzies, 845 P.3d 220, 224 (Utah 1992)
(noting that “we review only issues concerning the adequacy of the
transcript” and “do not reach the merits of the conviction and sentence”).
After addressing the transcription issues, Mr. Menzies submitted a 199-
page brief raising 44 issues involving his conviction and sentence.
Appellant’s Opening Br., State v. Menzies, No. 880161 (Utah Sept. 14,
1992).
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
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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, 889 P.2d 393, 406
(Utah 1994) (“We find Menzies’ other claims to be without merit.”). Given
the summary nature of Mr. Menzies’s argument, the court reasonably
applied clearly established federal law and the record. See Wellmon v.
Colo. Dep’t of Corrs., 952 F.3d 1242, 1249 (10th Cir. 2020) (“[U]nder
Section 2254(d), we review the reasonableness of a state court’s decision
in light of the arguments the petitioner raised in the state court.”).
11.5.2 Failure to Provide a Sufficient Transcript of Voir Dire
Mr. Menzies complains not only of the reference to the docketing
statement, but also of gaps and errors in the transcription of voir dire. As
Mr. Menzies observes, the transcript omitted some questions and answers
and contained errors involving the prospective jurors challenged for cause.
The Utah Supreme Court addressed these errors, but concluded that
the record allowed full and fair consideration of any claim involving jury
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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.
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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
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• “[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.
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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, 845 P.2d 220, 240 (Utah 1992).
Mr. Menzies argues that this assumption wouldn’t protect his right to
appeal because his appellate attorney couldn’t have known what had
happened.
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
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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, 845 P.2d 220, 240 (1992).
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, 251 F.3d 881, 889–90 (10th
Cir. 2001) (concluding that “untranscribed portions of the trial in this case
do not constitute ‘significant and substantial’ omissions from the trial
transcripts” and were not prejudicial). And the Eleventh Circuit has
concluded that omission of a bench conference, lasting 1 hour and 45
minutes, was not substantial and significant for a long and complex trial.
United States v. Stefan, 784 F.2d 1093, 1102 (11th Cir. 1986). Similarly,
the D.C. Circuit has concluded that the failure to transcribe eight bench
conferences didn’t require reversal because the gaps didn’t appear
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particularly significant and the defendant hadn’t made a specific claim of
prejudice. United States v. Winstead, 74 F.3d 1313, 1321–22 (D.C. Cir.
1996). And the Fifth Circuit declined to reverse when the court reporter
had failed to transcribe 9 bench conferences, regarding the gaps
insignificant when the transcript spanned over 3000 pages. United States v.
Aubin, 87 F.3d 141, 149 (5th Cir. 1996).
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 inquiry 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, 559 F.2d 1303, 1305 (5th Cir. 1977); accord United
States v. Charles, 313 F.3d 1278, 1283 (11th Cir. 2002) (per curiam) (“If
the same attorney represents an appellant at trial and on appeal, a new trial
may be granted ‘only if the defendant can show that the failure to record
and preserve a specific portion of the trial visits a hardship on him and
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prejudices his appeal.’” (quoting United States v. Preciado-Cordobas, 981
F.2d 1206, 1212 (11th Cir. 1993))).
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 an
unrecorded error as speculation. See Scott v. Elo, 302 F.3d 598, 604–605
(6th Cir. 2002) (concluding that a habeas petitioner had failed to show
prejudice from a gap in the transcript of closing argument in part because
“the prosecutor could not recall any objections during closing arguments,
and defense trial counsel did not dispute the prosecutor’s account”).
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.
11.5.4 Additions by the Note Reader
Mr. Menzies cites instances when the note reader made additions and
corrections to the court reporter’s shorthand notes. In Mr. Menzies’s view,
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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, 845 P.2d 220, 231 (Utah 1992). The court
saw little significance from these changes because they would bear only on
the preservation of particular issues. Id. at 235.
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,
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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
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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.
11.5.5 Errors Involving Numbers
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,
845 P.2d 200, 236 (Utah 1992). But in the court’s view, the confusion did
not impair Mr. Menzies’s ability to appeal his conviction or sentence.
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 Mrs. Hunsaker’s identification cards at the jail.
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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, 845 P.2d 220, 237 (Utah 1992). The first
sighting wasn’t material, the court explained, because Mr. Larrabee
acknowledged that he couldn’t see the other man’s face. Id. Given Mr.
Larrabee’s inability to see the other man’s face, the Utah Supreme Court
concluded that the distance was “not particularly relevant.” Id. Even now,
Mr. Menzies doesn’t say why this conclusion was unreasonable.
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For Mrs. 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
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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, 5 P.2d 220, 224 (Utah 1992). Because this procedure revealed no
reporting errors involving the timing of events at the jail, we reject this
challenge to the adequacy of the transcript.
** *
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.
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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.”
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State v. Menzies, 889 P.2d 393, 402–03 (Utah 1994).
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, 448 U.S. 56, 65–66 (1980), overruled by Crawford v.
Washington, 541 U.S. 36 (2004). 22
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
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.
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F.3d 1230, 1232 (10th Cir. 2007). Applying this standard, we decline to
expand the certificate of appealability to encompass this challenge.
12.2 Mr. Britton’s Unavailability
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, 889 P.2d 393, 402 (Utah 1994). Mr. Menzies
challenges this finding. But at trial, defense counsel conceded that Mr.
Britton was “technically . . . unavailable.”
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
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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, 889 P.2d 383, 402–03 (Utah 1994). Mr. Menzies challenges this
finding, arguing that his trial attorneys had lacked an adequate opportunity
to cross-examine Mr. Menzies at the preliminary hearing.
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.
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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, 889 P.2d 383, 403 (Utah 1994).
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.
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