Honie v. Powell

58 F.4th 1173

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 26, 2023
• Docket: 19-4158
• Status: Published

Opinion

Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 26, 2023

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

TABERON DAVE HONIE,

Petitioner - Appellant,

v. No. 19-4158

ROBERT POWELL, Warden, Utah State Prison,

Respondent - Appellee. _________________________________

Appeal from the United States District Court for the District of Utah (D.C. No. 2:07-CV-00628-JAR-EJF) _________________________________

Jon M. Sands, Federal Public Defender (Therese M. Day and Eric Zuckerman, Assistant Federal Public Defenders, with him on the briefs), Phoenix, Arizona, for Petitioner- Appellant.

Melissa Holyoak, Utah Solicitor General (Andrew F. Peterson, Assistant Solicitor General, and Sean D. Reyes, Utah Attorney General, on the brief), Salt Lake City, Utah, for Respondent-Appellee. _________________________________

Before HOLMES, Chief Judge, LUCERO, Senior Circuit Judge, and PHILLIPS, Circuit Judge. _________________________________

PHILLIPS, Circuit Judge. _________________________________

One evening twenty-four years ago, Taberon Honie called his ex-girlfriend on

the telephone, demanded that she immediately visit him, and threatened to kill Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 2

several of her family members if she didn’t. When she went to work instead, Honie

made good on his threat, brutally murdering her mother hours later. As Honie tried to

leave through the garage at the murder scene, police noticed blood covering his hands

and forearms and asked him about it. Honie confessed to the murder and kept

confessing the next day.

About two weeks before trial, following his lawyer’s advice, Honie waived his

Utah statutory right to jury sentencing in favor of sentencing by the trial judge. But

years later, Honie alleged (1) that soon after he waived jury sentencing, a fellow

inmate told him that he had made a mistake in doing so; (2) that a week before trial,

Honie asked his trial counsel to withdraw the waiver; and (3) that counsel told him it

was too late.

During the defense’s opening statement at the murder trial, Honie’s counsel

conceded that Honie was guilty of the aggravated-murder charge, telling the jury that

the case would be about punishment. After hearing the evidence, a Utah state jury

convicted him of aggravated murder. Then after considering the parties’ evidence

presented at the penalty phase, the trial judge imposed a sentence of death. On direct

appeal, the Utah Supreme Court upheld the conviction and sentence.

In seeking state postconviction relief, Honie argued under the Sixth

Amendment that his trial counsel performed deficiently in two ways: (1) by

inadequately explaining his right to jury sentencing, and (2) by not following his

direction to retract his waiver. The Utah Supreme Court rejected Honie’s first claim,

concluding that Honie’s counsel had performed competently. On the second, the

2 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 3

court didn’t rule on the deficient-performance question. For both claims, the court

ruled that Honie had suffered no prejudice.

In evaluating Honie’s ineffective-assistance-of-counsel claim, the Utah

Supreme Court began by reciting the general standard from Strickland v. Washington,

466 U.S. 668 (1984). To show prejudice under that standard, Honie needed to show

“a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Honie v. State (Honie II), 342 P.3d 182,

192 (2014) (quoting Strickland, 466 U.S. at 694). In applying this general standard to

Honie’s prejudice argument, the Utah Supreme Court treated “the result of the

proceeding” as meaning the result of the sentencing proceeding. Id. Tracking how

Strickland applied its general prejudice standard to require a reasonable probability

of a change in the case’s substantive outcome, the Utah Supreme Court ruled that

Honie could show prejudice only if “the sentencer, in this case the trial judge, ‘would

have concluded that the balance of aggravating and mitigating circumstances did not

warrant death’ in the absence of counsel’s deficient performance.” Id. (quoting

Strickland, 466 U.S. at 695). The court concluded that Honie had failed to make that

showing.

Now before us on federal habeas review, Honie argues that the Utah Supreme

Court’s application of Strickland’s substantive-outcome test for prejudice was

contrary to, or involved an unreasonable application of, clearly established law. He

argues that the holdings of three more-recent Supreme Court cases required the Utah

Supreme Court to instead use the process-based test as done in Hill v. Lockhart, 474

3 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 4

U.S. 52 (1985). If Hill’s standard applied, Honie would have instead needed to show

a reasonable probability that, but for counsel’s errors, he would have chosen jury

sentencing.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

we may grant Honie relief only if the Utah Supreme Court’s adjudication on the

merits was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1). The general standard provided in Strickland provides Honie

a first level of clearly established law for prejudice. Under that level, Honie can meet

the general prejudice test if he shows that “the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694. But for Honie’s claim, that simply

invites another legal question—what does “the result of the proceeding” mean?

As mentioned, depending on the context, the Supreme Court cases give two

possible meanings: (1) the substantive outcome of the case, that is, the underlying

conviction or sentence, or instead (2) the procedural outcome of the decision, that is,

whether the defendant would have chosen to plead or go to trial. The key point here

is that no one contends that, absent the Hill line of cases, the Utah Supreme Court

either would have acted contrary to or unreasonably applied Strickland’s

general-prejudice standard by choosing the substantive-outcome test over the

process-based test. For Honie, all depends on Hill and its line of cases.

That leads us to the issue before us. In cases like Honie’s, which contest the

state court’s choice of the two applications of Strickland’s general standard for

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prejudice, the defendant must provide a second level of clearly established law that

requires courts to apply the application he advocates for his circumstances. Here, that

means Honie must identify a Supreme Court holding that requires courts applying

Strickland to use a process-based test in evaluating whether counsel’s deficient

performance leading to a state jury-sentencing waiver prejudices the defendant. To

do so, Honie relies on the three Supreme Court cases Judge Lucero lists in the

Certificate of Appealability (“COA”) question—Hill, Flores-Ortega, and Lafler.

BACKGROUND

I. Factual Background

In 1995, Honie began dating Carol Pikyavit.1 The relationship ran about two

years before sputtering over another year or so. Somewhere along the way, the couple

had a daughter, T.H. But by 1998, Honie was living with a new girlfriend, and Carol

and T.H. were living with Carol’s mother, Claudia Benn. Also living with Claudia

were Carol’s sister, Benita, and Benita’s two preschool-aged daughters, D.R. and

T.R.

1 Along with the record submitted by the Utah District Court covering Honie’s federal habeas petition, we have also received two separate records related to Honie’s conviction and postconviction-relief efforts in Utah’s courts. The first state record covers Honie’s jury trial and judge sentencing—Utah Fifth Judicial District Case No. 981500662. We cite that record as “Tr. R.” Because the record isn’t consecutively paginated, all citations refer to the PDF page number. The second state record covers Honie’s postconviction-relief efforts—Utah Fifth Judicial District Case No. 030500157. We cite that record as “PC R.” Because that record is consecutively paginated, our citations refer to the Bates-stamped page numbers handwritten on the bottom of each page. 5 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 6

On July 9, 1998, Honie murdered Claudia. That evening, Honie called Carol

several times, demanding that she immediately visit him at his girlfriend’s house. At

least partly because Carol was soon due at work, she refused. Agitated, Honie

reinforced his demand with a threat—if she disobeyed his command, he would kill

Claudia and Carol’s young nieces and steal away with T.H. Carol disregarded

Honie’s threat. After all, this wasn’t the first time Honie had threatened violence. He

called twice more before Carol and Benita left for work at 10:30 p.m. While the two

mothers worked, Claudia tended the three granddaughters at her house. About an

hour after his last telephone call, Honie called a cab and made his way there.

At about 12:20 a.m., police arrived at Claudia’s house in response to a

neighbor’s 911 call. The police saw that someone had smashed a rock through a

sliding glass door to gain entry. They ordered everyone inside the house to come

outside and soon saw Honie leaving through the garage. After ordering Honie to raise

his hands, officers noticed that his hands and forearms were covered in blood. When

they asked him about this, Honie responded, “I stabbed her. I killed her with a knife.”

Honie v. Crowther (Honie III), No. 2:07-CV-628 JAR, 2019 WL 2450930, at *1 (D.

Utah June 12, 2019) (citation omitted).

The officers arrested Honie and went inside. In the living room, they found

Claudia’s partially nude body lying face down, a bite mark visible on her left arm.

Next to her body lay a large, blood-covered butcher knife. Blood had pooled on the

floor under her neck. Honie had slit Claudia’s throat from ear to ear, beginning with

four “start marks” under her left ear. State v. Honie (Honie I), 57 P.3d 977, 982

6 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 7

(Utah), cert. denied, 537 U.S. 863 (2002). The cut was so deep that the knife reached

her backbone.

Honie had also mutilated Claudia’s lower body and genitalia by repeatedly

stabbing her vagina and anus. Two stab wounds penetrated her vagina so deeply that

they pierced the pelvic cavity of her abdomen. The medical examiner who performed

the autopsy testified that Honie may have inflicted the vaginal injuries before he cut

Claudia’s throat. Honie later admitted that he had attempted to penetrate Claudia’s

anus with his penis but “decided not to after realizing the victim had died.” Honie II,

342 P.3d at 187.

As the officers continued to investigate, Claudia’s three granddaughters, aged

twenty-two months to four years, ventured from the back of the house to where

Claudia’s body lay. Though the girls all had blood on them, D.R., Honie’s four-year-

old niece, “was covered, literally, head to toe with blood.” Id. at 187. D.R. had been

wearing underwear when her mother left for work, but she now wore only a T-shirt.

After D.R. was again dressed in clean underwear, someone noticed that she was

bleeding into the underwear. At trial, an expert testified that D.R.’s bleeding came

from abrasions on her genitals caused by rubbing or fondling within the past twenty-

four hours. During the penalty phase, Honie’s expert witness, a psychologist, testified

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that Honie had admitted to sexually molesting D.R. that night by digitally penetrating

her.2

The morning after the murder, an officer interrogated Honie three separate

times. In each interview, Honie expressed remorse for killing Claudia, repeatedly

stating that she wasn’t meant to die.

II. Procedural History

A. Trial, Sentencing, and Direct Appeal

The State of Utah charged Honie with aggravated murder. During a pretrial

conference about two weeks before trial, Honie’s trial counsel informed the trial

judge that Honie wished to waive his Utah statutory right to jury sentencing. See

Utah Code Ann. § 76-3-207(1)(c)(i) (LexisNexis 1995). Further, Honie’s counsel told

the court that he and Honie had discussed the “whole process” of the

jury-sentencing-waiver issue “on several occasions,” Tr. R. at 996, including the

night before the pretrial conference. Honie’s counsel advised the court of “[Honie’s]

desire” to waive his statutory right to jury sentencing, id. at 1003.

Before consenting to Honie’s waiver, the prosecuting attorney asked if, on a

proper evidentiary showing, the trial judge would be able to impose the death

penalty. Though the judge stated that imposing the death penalty was “the last thing a

judge would want to do,” he confirmed that he would impose that sentence if the

2 Though these facts are painfully graphic, they are relevant to Honie’s choice between jury or judicial sentencing and to his claim that in the end he indeed would have sought to withdraw his jury-sentencing waiver. 8 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 9

facts and circumstances of the case warranted it. Honie III, 2019 WL 2450930, at *10

(citation omitted). Satisfied with the judge’s answer, the State consented to Honie’s

waiver of jury sentencing. See Utah Code Ann. § 76-3-207(1)(b).

The court then took a brief recess so Honie’s counsel could complete a written

“Waiver of Jury in Penalty Phase.” The waiver stated that Honie was “knowingly and

intelligently” waiving his right to have a jury determine his sentence. Honie III, 2019

WL 2450930, at *11. It also stated that Honie had discussed the waiver with his

attorney; that he had “been advised of the full scope of options and ramifications” of

waiving a sentencing jury; that he had waived “the right to have a jury of twelve

persons determine the penalty”; and that he understood that if he opted for a jury

sentencing, “it would only take one (1) juror to dissent or vote against imposing the

death penalty, and that ten (10) jurors are sufficient to impose a sentence of life

without the possibility of parole.” Id. (emphasis added) (citation omitted). After

privately conferring further with Honie, his counsel orally reviewed the waiver with

Honie point by point in open court, asking Honie if he had any questions about it and

if he understood it. Counsel highlighted that Honie was “giving up [his] right to have

a jury of 12 people decide the penalty,” Tr. R. at 1002–03, and that, with a jury, he

would avoid the death penalty if one person dissented. Honie stated that he had no

questions and that he understood the right he was giving up.

After Honie’s counsel reviewed the waiver with him, the trial court asked

additional follow-up questions to further ensure that Honie understood the right he

was waiving. Specifically, the trial court verified that Honie understood he was

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waiving the right to have twelve jurors decide his sentence. Honie confirmed that he

was voluntarily waiving the right to have a jury decide his punishment and that his

decision was based on counsel’s advice but was his decision alone. Honie highlights

one brief portion of this lengthy colloquy:

THE COURT: And then, do you understand that to not receive the death penalty you would have to have—I don’t know quite how to put this in layman’s terms and still be accurate legally—but with a judge, there is just one person you would have to convince. There is a reasonable doubt with 12 jurors, you got 12 chances to convince somebody that there is a reasonable doubt there. So do you understand that you are reducing your field there for 12 down to one?

HONIE: Yes.

THE COURT: I don’t want to insult your intelligence, but do you understand that?

HONIE: Yes, I do.

THE COURT: And you still want to go ahead with the waiver of the jury for the penalty phase?

HONIE: Yes, sir.

Tr. R. at 1005.

At trial, during opening statement, Honie’s counsel acknowledged that Honie

had committed the charged aggravated murder, telling the jury, “I know in this case

there is no question of Mr. Honie’s guilt. You are going to find him guilty. The

question in this case is going to be one of punishment.” Honie III, 2019 WL 2450930,

at *2. The jury later found Honie guilty of aggravated murder. On a special-verdict

form, the jurors found that five aggravators supported Honie’s conviction, including

burglary, object rape, and forcible sodomy. Those same aggravators also qualified as

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“aggravating circumstances” supporting the death penalty. See Utah Code Ann.

§ 76-3-207(3) (defining “aggravating circumstances” as those listed in Utah’s

aggravated-murder statute, id. § 76-5-202).

During the two-day sentencing hearing, the State emphasized both Honie’s

crime and the harm it had caused Claudia’s family and community. Honie, in turn,

presented mitigating evidence, including his limited criminal history, his intoxication

during the crime, and his youth (Honie was twenty-two years old when he killed

Claudia). After concluding that the aggravating circumstances outweighed the

mitigating circumstances, the trial judge imposed the death penalty.

Honie appealed his conviction and sentence. In 2002, the Utah Supreme Court

upheld both.

B. Postconviction Relief Efforts

1. Utah Courts

In 2003, Honie sought postconviction relief in Utah district court. He based his

sprawling petition on dozens of alleged errors committed by his trial and appellate

counsel and by the trial court. Relevant here, Honie faulted trial counsel for failing to

“adequately advise [him] regarding his right to have the jury decide [his] sentence.”

PC R. at 68. In 2005, Honie submitted an affidavit in opposition to the State’s

summary-judgment motion. In this affidavit, he asserted for the first time that he

hadn’t understood “what aggravators and mitigators were” or the process for

determining his sentence. Honie III, 2019 WL 2450930, at *12 (citation omitted).

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He further recounted—also for the first time—an attempt to withdraw his

jury-sentencing waiver about a week after he entered it. According to Honie, a

“jailhouse lawyer” had convinced him that he made a mistake by opting for judicial

sentencing—on grounds that he needed only one holdout juror to get a life sentence.

Id. But when Honie allegedly asked his trial counsel to withdraw his waiver, his

lawyer told him it was “too late” even though a week remained until trial. Id.; see

also id. at *17. Honie represented that if he “had understood the differences between

a judge determination and a jury determination, [he] would have gone with the jury in

the penalty phase and not waived the jury.” Id. at *12 (citation omitted).

In 2011, after a round of summary-judgment briefing, discovery, and then

another full round of summary-judgment proceedings, the district court denied relief

on each of Honie’s claims.

Honie appealed the postconviction-relief denial to the Utah Supreme Court.

Citing Strickland, Honie argued that his counsel had provided ineffective assistance

in violation of the Sixth Amendment. As for the first prong of Strickland’s general

standard for ineffective assistance of counsel—that his counsel had performed

deficiently—Honie alleged two constitutional deficiencies. First, he argued that his

counsel had failed to advise him adequately about what waiving his right to jury

sentencing meant, making his waiver unknowing and involuntary. Second, he argued

that his trial counsel had failed to try to withdraw the waiver of jury sentencing, even

after Honie asked him to do so.

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Addressing the second prong of Strickland’s general standard—that his

counsel’s deficient performance had prejudiced him—Honie didn’t argue that a jury

would have spared him the death penalty. Instead, he argued that if competently

represented he would have opted for jury sentencing. In response, the State argued

that the proper prejudice inquiry was whether Honie could show a reasonable

probability that the jury would have spared him the death penalty: “Strickland

ordinarily requires proving that counsel’s mistake undermines confidence in the

outcome of the proceeding, meaning Honie must show that waiving the jury

undermines confidence in his death sentence.” State Ct. Appellee’s Br. at 58, Honie

II (No. 20110620). The State further faulted Honie for citing no authority applying a

different prejudice standard. In reply, Honie cited Hill as support for his argument

that he had been prejudiced by waiving his right to jury sentencing, regardless of

whether he could show a reasonable probability that the jury would have instead

imposed life imprisonment.

The Utah Supreme Court found no merit in Honie’s first ineffective-assistance

claim related to his jury-sentencing waiver. In adjudicating the merits of this claim,

the court ruled that Honie’s counsel hadn’t performed deficiently by advising him to

waive his right to jury sentencing and that, based on the record, Honie’s waiver had

been knowing and voluntary.

Addressing Honie’s second ineffective-assistance claim—his counsel’s failure

to try to withdraw Honie’s waiver of jury sentencing—the court skipped the

deficient-performance prong and rejected Honie’s claim based on his failure to

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satisfy the prejudice prong: “We need not decide if trial counsel’s failure to move to

withdraw Mr. Honie’s waiver amounts to ineffective assistance of counsel because,

even if trial counsel’s performance was objectively unreasonable, Mr. Honie cannot

show that he was prejudiced.” Honie II, 342 P.3d at 201. The court applied

Strickland’s general prejudice standard—which asks whether there was a reasonable

probability that the result of the proceeding would have been different—by focusing

on the outcome of Honie’s sentencing, that is, the decision between the death penalty

or life imprisonment. Concluding that Honie had not shown a reasonable probability

that the jury would have spared him from the death penalty, the court found no

prejudice. The court didn’t discuss Hill’s prejudice standard.

2. Federal Courts

In May 2015, Honie petitioned for federal habeas relief in the District of Utah,

raising fourteen claims for relief. This appeal relates to Claim Three, one of the eight

claims that the district court determined Honie had properly exhausted. Again, Honie

argued two ways in which his trial counsel had performed deficiently: (1) by failing

to advise him adequately about his right to a jury sentencing and (2) by failing to

move to withdraw his jury-sentencing waiver. Specifically, Honie maintained that

Hill provided clearly established law that required the Utah Supreme Court to apply

the process-based prejudice standard, not Strickland’s substantive-outcome-based

one. R. vol. 2, at 439 (quoting Hill and concluding that Honie “only needed to

demonstrate that if not for counsel’s deficient performance, he would have withdrawn

his jury waiver and proceeded with a jury during the penalty phase of his trial”).

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The federal district court denied all of Honie’s claims for relief. Addressing

the two deficient-performance claims, the court first concluded that the Utah

Supreme Court’s determination that trial counsel had adequately advised Honie on

the jury-waiver decision was neither contrary to nor an unreasonable application of

clearly established federal law. Next, the district court ruled that “[t]here is no clearly

established federal law extending the Hill prejudice standard to jury trial waivers.”3

Honie III, 2019 WL 2450930, at *18 (citation omitted).

Honie then moved this court for a COA. Judge Murphy denied Honie’s request

for a COA but granted him leave to file a renewed request to the merits panel. Honie

did so, and Judge Lucero granted a COA on the following issue:

In assessing whether an attorney’s deficient performance in connection with a waiver of the right to a jury sentencing prejudiced a habeas petitioner, is it clearly established under Hill v. Lockhart, 474 U.S. 52 (1985); Roe v. Flores-Ortega, 528 U.S. 470 (2000); and Lafler v. Cooper, 566 U.S. 156 (2012), that the relevant inquiry is whether the petitioner would have waived his jury right but for counsel’s ineffectiveness?

Order Granting Certificate of Appealability at 1. Our jurisdiction lies under 28 U.S.C.

§ 2253. And as the COA question reveals, this appeal turns on whether the three

Supreme Court holdings clearly establish that the Utah Supreme Court needed to

3 Alternatively, the district court concluded that Honie couldn’t meet his burden even if it were to apply the Hill prejudice standard. It found insufficient Honie’s bare assertion that he would have withdrawn his waiver had his counsel asked the court to do so. The court agreed with the Utah Supreme Court that “a defendant will often fare better with a trained jurist than a lay jury, especially when the crime is particularly heinous.” Honie III, 2019 WL 2450930, at *19 (quoting Honie II, 342 P.3d at 201). In other words, Honie failed to persuade the district court that he had shown any good reasons why he would really have withdrawn his jury-sentencing waiver. We do not reach that issue. 15 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 16

apply Hill’s process-based prejudice standard beyond their underlying claims

regarding pleas and appeals, all the way to Honie’s waiver of jury sentencing.

Critically, we evaluate these cases within the constraints of federal habeas review, 28

U.S.C. § 2254(d).

DISCUSSION

This appeal involves the law governing ineffective-assistance-of-counsel

claims and whether Honie can prevail on such a claim under AEDPA, 28 U.S.C.

§ 2254(d)(1). Specifically, Honie claims that the Utah Supreme Court violated clearly

established law in its application of Strickland’s general prejudice standard. At a first

level of clearly established law, Honie can easily show that Strickland’s general

standard for ineffective-assistance claims governs his claim. But because courts still

must apply that general prejudice standard to his circumstances, he must show a

second level of clearly established law that would have required the Utah Supreme

Court to apply a process-based prejudice test in evaluating his deficient-performance

claims arising from his jury-sentencing waiver.

Our COA question pertains to this second level of clearly established law. We

invited Honie to show that the holdings of Hill, Flores-Ortega, and Lafler required

the Utah Supreme Court to apply the general prejudice standard as requiring a

process-based prejudice test to his two deficient-performance claims. If he could do

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so, we would then determine whether the Utah Supreme Court acted contrary to or

unreasonably applied that clearly established law.4

But before we can consider those questions, we must address some preliminary

matters. First, the State argues that we lack jurisdiction because no case or

controversy exists. Second, the State argues that Honie has failed to preserve his Hill

prejudice argument for appeal. After rejecting those arguments, we resolve the merits

of this appeal: whether the Utah Supreme Court’s decision was contrary to or

involved an unreasonable application of clearly established federal law.

I. Jurisdiction

To meet Strickland’s general ineffective-assistance-of-counsel standard, Honie

needed to show (1) that his counsel performed deficiently and (2) that this deficiency

prejudiced him. 466 U.S. at 687. But because of the COA’s wording, Honie

understandably limited his argument to whether the Utah Supreme Court had applied

the wrong prejudice standard. With the case in this posture, the State argues that any

decision we issue would be advisory: that is, even if we conclude that clearly

established law required the Utah Supreme Court to apply the Hill prejudice standard,

4 Though we adopt the parties’ moniker of “Hill prejudice,” we acknowledge that the Hill Court merely applied Strickland’s general standard, including its prejudice prong, to the factual context and challenge raised before the Court (an accepted plea offer). See Lee v. United States, 137 S. Ct. 1958, 1965 n.1 (2017) (noting that in Hill the Court did not “depart from Strickland’s requirement of prejudice. The issue is how the required prejudice may be shown.”). 17 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 18

Honie still couldn’t obtain relief, because the court also ruled that he had failed to

show that his counsel had performed deficiently.5

But the State concedes that our precedents permit us to “expand a COA to

cover the necessary but omitted Strickland element.” Resp. Br. 14. Indeed, in United

States v. Shipp, 589 F.3d 1084 (10th Cir. 2009), we recognized our authority “to

expand the COA to cover uncertified, underlying constitutional claims asserted by an

appellant.” Id. at 1087–88 (collecting cases); see also United States v. Lozado, 968

F.3d 1145, 1150 n.1 (10th Cir. 2020) (“The government’s position on appeal also

presents a question regarding the scope of the certificate of appealability previously

issued by a judge of this court. . . . To the extent it might . . . be construed as limited

to the assault conviction, we expand the scope of the certificate of appealability to

include the parties’ arguments respecting the other convictions relied on by the

district court at sentencing.”). We now exercise our discretion to expand the COA to

cover the “uncertified, underlying constitutional claims” that Honie asserts—whether

his trial counsel performed deficiently under Strickland. Under our expanded COA,

we have jurisdiction to resolve the full controversy presented here.

II. State-Court Exhaustion and Preservation of Honie’s Jury-Waiver Claim

Next, the State raises two more reasons that we shouldn’t reach the merits.

First, the State argues that Honie has defaulted his claim by not fairly presenting the

5 This argument ignores that the Utah Supreme Court didn’t rule on Honie’s deficient-performance claim related to his counsel’s not seeking to withdraw the jury-sentencing waiver after Honie asked counsel to do so. 18 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 19

Utah courts with his argument that Hill’s process-based prejudice standard applies.

Second, because Honie didn’t cite Flores-Ortega and Lafler in the district court, the

State argues that Honie failed to preserve his argument that those cases reinforce that

the Hill process-based prejudice standard governs ineffective-assistance claims based

on counsel’s alleged deficient performance tied to jury-sentencing waivers. We reject

both arguments.

A. Honie fairly presented his prejudice argument to the Utah Supreme Court.

In asserting that Honie didn’t fairly present his Hill prejudice argument to the

Utah Supreme Court, the State notes that he didn’t cite Hill until his reply brief.

Because Utah courts generally refuse to consider issues raised for the first time in a

reply brief, see Brown v. Glover, 16 P.3d 540, 545 (Utah 2000), the State insists that

Honie didn’t fairly present that argument. We disagree.

“For a federal court to consider a federal constitutional claim in an application

for habeas, the claim must be ‘fairly presented to the state courts’ . . . .” Prendergast

v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012) (quoting Picard v. Connor, 404

U.S. 270, 275 (1971)). Thus, we recognize that we must afford state courts “the

‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal

rights,” which those courts cannot do unless they have been “alerted to the fact that

the prisoners are asserting claims under the United States Constitution.” Duncan v.

Henry, 513 U.S. 364, 365–66 (1995) (per curiam) (quoting Picard, 404 U.S. at 275).

A petitioner “need not cite ‘book and verse on the federal constitution.’” Bland v.

19 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 20

Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (quoting Picard, 404 U.S. at 278). But

he must do “more than present[] ‘all the facts necessary to support the federal claim’

to the state court or articulat[e] a ‘somewhat similar state-law claim.’” Id. (quoting

Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam)). At bottom, “the crucial

inquiry is whether the ‘substance’ of the petitioner’s claim has been presented to the

state courts in a manner sufficient to put the courts on notice of the federal

constitutional claim.” Prendergast, 699 F.3d at 1184 (emphasis added) (citations

omitted).

No one disputes that Honie squarely presented to Utah’s courts an

ineffective-assistance claim that he based on his jury-sentencing waiver. Rather, the

State maintains that Honie failed to fairly present a subcomponent of his claim—one

before us now—that Hill’s process-based prejudice standard applies to waivers of

jury sentencing in capital cases. Certainly, Honie’s opening brief in the Utah

Supreme Court could have done a better job of this. Even so, we can still make out

the substance of his process-based prejudice argument.

He argued as follows: “Honie was prejudiced because he was not informed of

his right to be sentenced by a jury free from bias and prejudice. Because of this, he

waived jury sentencing in favor of the judge.” State Ct. Opening Br. of Appellant at

75, Honie II (No. 20110620). In other words, Honie asserted that his waiver decision

was based on poor advice—and that if he had understood what he was giving up, he

would have chosen jury sentencing. Key here, Honie didn’t argue prejudice based on

grounds that the jury would have spared him from the death penalty. Instead, Honie

20 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 21

argued prejudice on grounds that absent counsel’s deficient performance, he wouldn’t

have waived jury sentencing. That argument mirrors Hill’s prejudice standard.

And that’s not just our reading of his argument. The State understood it that

way too. In its response brief, the State explained that Honie’s argument “necessarily

assume[d] that merely showing that counsel’s advice caused him to forfeit a

sentencing jury meets his burden to prove Strickland prejudice.” State Ct. Resp. Br.

of Appellee at 58, Honie II (No. 20110620). The State then faulted Honie for not

supporting his argument with legal authority and further argued against applying the

Hill prejudice standard. So even accepting that Honie’s opening brief presented only

a bare-bones version of his prejudice argument, we can see that the State

comprehended it and responded.

That Honie didn’t cite Hill until his reply brief doesn’t change the result. The

State argues that because a Hill prejudice argument wasn’t clear until Honie’s reply

brief, the Utah Supreme Court could have considered it waived. See Brown, 16 P.3d

at 545. Putting aside that the Utah Supreme Court never ruled that Honie had waived

this argument, the State ignores the rationale for the rule. “When an appellant saves

an issue for the reply brief, he deprives the appellee of the chance to respond. And

that leaves us without a central tenet of our justice system—adversariness.” Kendall

v. Olsen, 424 P.3d 12, 15 (Utah 2017). That didn’t happen here. The State wasn’t

deprived of the chance to respond; in fact, it devoted two pages of its brief to explain

why Strickland’s prejudice standard should apply instead of Hill’s. And Honie in turn

spent four pages of his reply brief clarifying his prejudice argument under Hill. Given

21 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 22

that background, we would have been surprised if the Utah Supreme Court ruled that

Honie had waived the point.

In short, we’re comfortable that once briefing was completed, “the substance

of [Honie’s] claim ha[d] been presented to [Utah’s] courts in a manner sufficient to

put the courts on notice of the federal constitutional claim.” See Prendergast, 699

F.3d at 1184 (internal quotation marks and citations omitted).

B. Honie preserved his prejudice argument in federal district court.

The State next contends that Honie failed to preserve his argument that

Flores-Ortega and Lafler further support his position that the Hill prejudice standard

extends to a defendant’s waiver of jury sentencing. It notes that Honie cited neither

Flores-Ortega nor Lafler in the federal district court, instead first doing so in his

COA application. Because of this timing, the State contends that Honie has waived

reliance on those cases. We understand the State as arguing that Honie has failed to

preserve any argument built on Flores-Ortega and Lafler.

We conclude that Honie preserved his argument. His theory on appeal mirrors

his theory in the district court. In the district court, Honie argued that the Utah

Supreme Court contravened clearly established federal law by applying the wrong

prejudice standard in assessing his ineffective-assistance claim. He argues the same

thing on appeal: “The Utah Supreme Court violated clearly established federal law

when it applied the wrong prejudice standard to Honie’s claim that trial counsel was

ineffective for failing adequately to advise Honie of his right to have a jury determine

his sentence . . . .” Opening Br. 6.

22 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 23

The State can’t preclude Honie from relying on Flores-Ortega and Lafler

without at least citing authority barring parties from bolstering established arguments

with additional reasoning and authority on appeal. And to the contrary, we have

acknowledged that “once a federal claim is properly presented, a party can make any

argument in support of that claim; parties are not limited to the precise arguments

they made below.” United States v. Johnson, 821 F.3d 1194, 1199 (10th Cir. 2016)

(brackets omitted) (quoting Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379

(1995)). This surely includes citing more legal authorities, provided the litigant’s

reliance on the new authorities doesn’t change its underlying legal theory. Fish v.

Kobach, 840 F.3d 710, 730 (10th Cir. 2010) (“Theories—as opposed to the

overarching claims or legal rubrics that provide the foundation for them—are what

matters.” (citing Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127 (10th Cir.

2011))). Here, though Honie initially cited just Hill, he later cited Flores-Ortega and

Lafler as further support for his argument that the Utah Supreme Court didn’t just

make a mistake in ruling on his ineffective-assistance claims—but that it ignored

clearly established federal law. Because those cases support the same theory

advanced in the district court, he may rely on them on appeal.

Moreover, this isn’t a case in which the district court was denied a chance to

pass on the issue now before us. See Johnson, 821 F.3d at 1199–1200 (declining to

consider the defendant’s newly raised argument in part because “the district court

never ruled on” it). In seven pages of analysis, the district court squarely considered

the question now before us, rejecting Honie’s argument that the Utah Supreme

23 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 24

Court’s decision contravened clearly established federal law. And, as Honie points

out, the district court even discussed Lafler in assessing whether the Utah Supreme

Court had applied the correct prejudice standard. We thus have the benefit of the

district court’s carefully reasoned decision on this point. And because the State fails

to persuade us that Honie has failed to preserve his argument, we now turn to the

merits of Honie’s claim.

III. The Deficient-Performance Prong: The Utah Supreme Court’s decision rejecting Honie’s arguments that counsel inadequately advised him about the jury-sentencing waiver and that his plea was unknowing and involuntary wasn’t contrary to or an unreasonable application of clearly established federal law.

A. Waiver of Utah Statutory Right to Jury Sentencing

In the Utah Supreme Court on post-conviction relief, Honie argued that “trial

counsel improperly advised him to waive his right to a jury at sentencing and that his

waiver was not knowing and voluntary.” Honie II, 342 P.3d at 200. Specifically,

Honie claimed that “the colloquy with trial counsel and the court was inadequate in

that it failed to make clear that Mr. Honie had a right to be sentenced by an impartial

jury, failed to clarify that the jurors would be required to weigh the aggravating and

mitigating factors, and failed to ensure that Mr. Honie understood what mitigating

and aggravating factors were.” Id.

The Utah Supreme Court held that “trial counsel’s advice to waive a jury at

sentencing was not objectively unreasonable under the first prong of Strickland.” Id.

The court noted that “[i]f counsel had a reasonable basis for advising a client to

waive a jury at sentencing, we will not second-guess that decision.” Id. (citing

24 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 25

Wiggins v. Smith, 539 U.S. 510, 523 (2003)). After noting that “the jury was

confronted with [the details of the crime] during the State’s case-in-chief,” the court

ruled that “[i]t was not unreasonable for trial counsel to conclude, in light of the

overwhelming evidence of Mr. Honie’s guilt and the gruesome nature of the crime

itself, that Mr. Honie would fare better at sentencing with a judge than with a jury.”

Id. at 200–01. Particularly in view of the trial judge’s comment that “the last thing a

judge would want to do” would be to impose the death penalty, the court noted that

“we cannot fault counsel’s advice to waive jury sentencing in favor of sentencing by

the trial judge.” Id. at 201. The court summarized that “[i]ndeed, absent specific

allegations of personal bias, we cannot conceive of any situation in which choosing a

judge over a jury would not constitute a legitimate tactical decision.” Id. at 200

(quoting Taylor v. Warden, 905 P.2d 277, 284 (Utah 1995)).

Next, the court addressed “Mr. Honie’s second claim relating to his waiver of

jury sentencing” on his asserted grounds that “his waiver was not knowing and

voluntary.” Id. at 201. Here, the court recounted Honie’s arguments that “he was

never informed of his right to an impartial jury, was never informed that the jury

would be required to weigh the aggravating and mitigating factors, and was never

properly instructed as to what aggravating and mitigating factors actually are.” Id.

The court agreed with the State that these matters were “not relevant to his choice

between a judge and a jury in terms of sentencing.” Id. As the relevant consideration

regarding the jury-sentencing waiver, the court identified “the difference between a

single judge and a twelve-person jury.” Id. The court then reviewed the trial court’s

25 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 26

extensive communications with Honie before he waived jury sentencing, concluding

that “[w]e cannot say, on this record, that Mr. Honie’s waiver was not knowing and

voluntary.” Id.

On review under § 2254(d)(1), the federal district court agreed with Honie that

he had supplied clearly established law by which he could proceed with this claim.

As such, it relied on Adams v. United States ex rel. McCann “for the proposition that

a defendant may waive the right to a jury trial when ‘there is an intelligent,

competent, self-protecting waiver’ and an ‘exercise of a free and intelligent choice.’”

Honie III, 2019 WL 2450930, at *12 (quoting 317 U.S. 269, 272–73 (1942)).

From there, the federal district court recounted the steep climb required by

§ 2254(d)(1). Addressing what qualifies as an objectively unreasonable application of

clearly established law, the court stated as follows:

The Tenth Circuit said it this way: “[u]nder the test, if all fairminded jurists would agree the state court decision was incorrect, then it was unreasonable and the habeas corpus writ should be granted. If, however, some fairminded jurists could possibly agree with the state court decision, then it was not unreasonable and the writ should be denied.” Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014). The court notes that under § 2254(d), “the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105. Thus, for Honie to get relief, he must show that no fairminded jurist would agree that the state court’s decision was correct.

Id. (alteration in original).

With that in mind, the court later turned to the Utah Supreme Court’s decision.

It noted that “[t]he state court began its analysis with a strong presumption that trial

counsel acted competently.” Id. at *13. It cited Strickland’s direction that “a court

26 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 27

must indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.” Id. (quoting 466 U.S. at 689). The court

agreed with the Utah Supreme Court that counsel’s advice to waive jury sentencing

was objectively reasonable: “A defense counsel’s decision to advise a defendant to

waive his right to jury and proceed with a non-jury trial is a ‘classic example of

strategic trial judgment’ for which Strickland requires highly deferential judicial

scrutiny.” Id. at *14 (quoting Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir.

1995), overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1188

n.1 (10th Cir. 2001)). For counsel’s advice to be constitutionally ineffective, “the

decision to waive a jury must have been completely unreasonable, not merely, wrong,

so that it bears no relationship to a possible defense strategy.” Id. (internal quotation

marks and citation omitted). Because the Utah Supreme Court had a strong basis for

concluding that the advice was premised on a possible defense strategy, the federal

district court concluded that “[t]he state court’s analysis recognized and correctly

applied Strickland’s performance prong.” Id.

Next, the federal district court reviewed Honie’s claim that “his waiver was

not knowing and voluntary.” Id. Here, Honie asserted that the written waiver and

colloquies in the courtroom “were inadequate to ensure that his waiver of jury

sentencing was made knowingly, intelligently, and voluntarily, in contravention of

the Eighth and Fourteenth Amendments of the United States Constitution.” Id. The

court recited the Utah Supreme Court’s ruling that “the relevant distinction between

sentencing by a jury or judge was explained to Mr. Honie and he affirmed to the

27 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 28

court that he understood the distinction and wanted to proceed with the judge at

sentencing.” Id. (quoting Honie II, 342 P.3d at 201). The federal district court

concluded that “the facts of this case show that Honie’s jury waiver was knowing and

voluntary, and thus the state-court decision was not contrary to or an unreasonable

application of clearly established Federal law.” Id. at *15 (citation omitted). The

court highlighted some of Honie’s involvements in approving the jury-sentencing

waiver in the state trial court. Id. Further, the federal district court noted that “Honie

cites no Supreme Court precedent that a defendant must be specifically apprised of

his right to an impartial jury or of the burden of proof in order to knowingly and

intelligently waive his right to a jury for sentencing.” Id.

Reviewing the district court’s decision de novo, we agree with its analysis and

conclusions. For Honie’s deficient-performance claim pertaining to his counsel’s

advice regarding waiver of the jury-sentencing right, Honie has not surmounted the

“double deference” owed when reviewing a state court’s Strickland ruling on

deficient performance under AEDPA, § 2254(d)(1).6 See Dunn v. Reeves, 141 S. Ct.

2405, 2410 (2021) (noting that the deficient-performance analysis “is ‘doubly

6 Addressing Honie’s second claim of deficient performance—that his counsel didn’t try to withdraw the waiver of jury sentencing as Honie requested—the Utah Supreme Court chose to rule solely on Strickland’s prejudice prong. With the case before it on a grant of summary judgment, the Utah Supreme Court treated as true Honie’s statement that he had asked his counsel to try to withdraw the waiver of jury sentencing. But the court ruled that “even if trial counsel’s failure to move to withdraw Mr. Honie’s waiver constituted deficient performance, we hold Mr. Honie was not prejudiced under the second prong of Strickland.” Honie II, 342 P.3d at 200. As did the federal district court, we will assume counsel’s performance was deficient and simply resolve that claim on the prejudice prong alone. 28 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 29

deferential’ when, as here, a state court has decided that counsel performed

adequately” (citation omitted)). We defer to the state court’s Strickland determination

and doubly defer in applying its merits adjudications under AEDPA, § 2254(d)(1).

Harris v. Sharp, 941 F.3d 962, 973–74 (10th Cir. 2019) (“When a habeas petitioner

alleges ineffective assistance of counsel, deference exists both in the underlying

constitutional test (Strickland) and the AEDPA’s standard for habeas relief, creating

a ‘doubly deferential judicial review.’” (citation omitted)). Honie hasn’t shown that

all fairminded jurists would conclude that the Utah Supreme Court’s ruling on this

deficient-performance-claim test was unreasonable, let alone even as mistaken or

wrong.

IV. The Prejudice Prong: The Utah Supreme Court’s decision applying a substantive-outcome-based test to Honie’s ineffective-assistance claims wasn’t contrary to or an unreasonable application of clearly established federal law.

A. Ineffective Assistance of Counsel Under the Sixth Amendment

1. The General Standard for Ineffective-Assistance Claims

In Strickland, the Supreme Court announced a general two-pronged test for

analyzing ineffective-assistance-of-counsel claims. First, “the defendant must show

that counsel’s performance was deficient.” Strickland, 466 U.S. at 687. Second, “the

defendant must show that the deficient performance prejudiced the defense.” Id. To

show prejudice, “[t]he defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine

29 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 30

confidence in the outcome.” Id. at 694. Honie asserts an ineffective-assistance-of-

counsel claim, so Strickland’s general standard applies to it. But whether Honie’s

claim prevails depends on how the general standard for prejudice applies to his

claim.7

2. The Two Different Applications of Strickland’s General Standard for Prejudice

a. Substantive-Outcome-Based Prejudice Standard

After announcing its general two-pronged standard, the Court in Strickland

next needed to apply that standard to the ineffective-assistance claim made in that

case. In Strickland, the defendant contended that his counsel had performed

deficiently by presenting an insufficient mitigation case in a capital case. Id. at

699–700. In evaluating prejudice, the Court determined that “[g]iven the

overwhelming aggravating factors, there is no reasonable probability that the omitted

evidence would have changed the conclusion that the aggravating circumstances

outweighed the mitigating circumstances and, hence, the sentence imposed.” Id. at

700 (emphasis added). Thus, in the context of that case, the Court “consider[ed] the

proper standards for judging a criminal defendant’s contention that the Constitution

requires a conviction or death sentence to be set aside because counsel’s assistance at

trial or sentencing was ineffective.” Id. at 671 (emphasis added).

7 For instance, if a court ruled that the defendant must show prejudice by a preponderance or higher, instead of a reasonable probability of prejudice, that would be contrary to Strickland. But Honie’s prejudice claim is not of that preliminary sort. 30 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 31

b. Process-Based Prejudice Standard

A year after Strickland, the Court decided Hill v. Lockhart. There, the

defendant’s counsel allegedly misadvised him about the length of his statutorily

required parole term. Hill, 474 U.S. at 55. The defendant asked the court to “reduce

his sentence to a term of years that would result in his becoming eligible for parole in

conformance with his original expectations.” Id.

The Court began by holding “that the two-part Strickland v. Washington test

applies to challenges to guilty pleas based on ineffective assistance of counsel.” Id. at

58. But in applying Strickland’s general standard on prejudice in the plea setting, the

Court departed from Strickland’s own application of its general prejudice standard as

requiring a substantive-outcome test (a test asking whether the guilt or sentencing

determination would have differed absent any deficient performance) for the

mitigation-evidence claim. Instead, in Hill, the Court applied a process-based

prejudice test—which allowed the defendant to prevail on a showing of “a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Id. at 59.

The Court noted that the two different applications have commonalities. It

observed that “[i]n many guilty plea cases, the ‘prejudice’ inquiry will closely

resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges

to convictions obtained through a trial.” Id. For instance, for guilty-plea cases

involving counsel’s deficient performance in failing to discover favorable evidence,

the Court stated that the success of a claim of prejudice for causing the defendant to

31 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 32

plead guilty will depend on “the likelihood that discovery of the evidence would have

led counsel to change his recommendation as to the plea.” Id. That assessment “will

depend in large part on a prediction whether the evidence likely would have changed

the outcome of a trial.” Id. And along the same line, the Court stated that prejudice

from counsel’s failing to advise a defendant of an affirmative defense “will depend

largely on whether the affirmative defense likely would have succeeded at trial.” Id.

(citation omitted).

The Court stated that “these predictions of the outcome at a possible trial,

where necessary, should be made objectively, without regard for the ‘idiosyncrasies

of the particular decisionmaker.’” Id. at 59–60 (quoting Strickland, 466 U.S. at 695).

Ultimately, because the defendant hadn’t alleged “he would have pleaded not guilty

and insisted on going to trial” if correctly informed of his parole-eligibility date, the

Court ruled that he had failed to allege prejudice sufficiently “to satisfy the second

half of the Strickland v. Washington test.” Id. at 60.

Fifteen years later, in Roe v. Flores-Ortega, the Court addressed an

ineffective-assistance-of-counsel claim that was “based on counsel’s failure to file a

notice of appeal without respondent’s consent.” 528 U.S. 470, 473 (2000). As in Hill,

the Court ruled that Strickland’s general two-pronged standard for

ineffective-assistance claims applied. Id. at 476–77. Addressing counsel’s

performance, the Court held that “counsel has a constitutionally imposed duty to

consult with the defendant about an appeal when there is reason to think either

(1) that a rational defendant would want to appeal (for example, because there are

32 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 33

nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably

demonstrated to counsel that he was interested in appealing.” Id. at 480. As a “highly

relevant factor,” the Court pointed to “whether the conviction follows a trial or a

guilty plea, both because a guilty plea reduces the scope of potentially appealable

issues and because such a plea may indicate that the defendant seeks an end to

judicial proceedings.” Id. The object is to determine “whether a rational defendant

would have desired an appeal or that the particular defendant sufficiently

demonstrated to counsel an interest in an appeal.” Id.

Turning to the prejudice prong, the Court, as it did in Hill, applied a

process-based prejudice standard. It held that “to show prejudice in these

circumstances, a defendant must demonstrate that there is a reasonable probability

that, but for counsel’s deficient failure to consult with him about an appeal, he would

have timely appealed.” Id. at 484. In this regard, the Court noted that “[w]e believe

this prejudice standard breaks no new ground, for it mirrors the prejudice inquiry” in

Hill and Rodriquez v. United States, 395 U.S. 327 (1969). Flores-Ortega, 528 U.S. at

485.8 In extending the process-based prejudice test to this new setting, the Court

compared a defendant’s plea and appeal decisions this way: “Like the decision

whether to appeal, the decision whether to plead guilty (i.e., waive trial) rested with

the defendant and, like this case, counsel’s advice in Hill might have caused the

defendant to forfeit a judicial proceeding to which he was otherwise entitled.” Id.

8 In Rodriquez, counsel failed to file a notice of appeal after being instructed to do so by the defendant. 395 U.S. at 328. 33 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 34

In assessing prejudice in the failure-to-appeal context, the Court characterized

as “highly relevant” all “evidence that there were nonfrivolous grounds for appeal or

that the defendant in question promptly expressed a desire to appeal.” Id. at 472. Yet

“a defendant’s inability to ‘specify the points he would raise were his right to appeal

reinstated,’ will not foreclose the possibility that he can satisfy the prejudice

requirement where there are other substantial reasons to believe that he would have

appealed.” Id. at 486 (quoting Rodriquez, 395 U.S. at 330).

Twelve years later, the Court decided Lafler v. Cooper, 566 U.S. 156 (2012).

In that case, the parties stipulated that counsel had performed deficiently by advising

the defendant not to accept a plea offer. Id. at 163. After a trial, the defendant

received a harsher sentence than the prosecutor had offered. Id. at 160. As with its

earlier cases, the Court applied Strickland’s two-pronged general standard for

ineffective-assistance-of-counsel claims. The issue lay in deciding “how to apply

Strickland’s prejudice test where ineffective assistance results in a rejection of the

plea offer and the defendant is convicted at the ensuing trial.” Id. at 163 (emphasis

added).

For a declined-plea-offer situation, the Court described the asserted prejudice

as “[h]aving to stand trial, not choosing to waive it.” Id. at 163–64. To show

prejudice in this circumstance, the Court required a defendant to “show that but for

the ineffective advice of counsel there is a reasonable probability that the plea offer

would have been presented to the court (i.e., that the defendant would have accepted

the plea and the prosecution would not have withdrawn it in light of intervening

34 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 35

circumstances), that the court would have accepted its terms, and that the conviction

or sentence, or both, under the offer’s terms would have been less severe than under

the judgment and sentence that in fact were imposed.” Id. at 164. Though the

defendant had received a fair trial, the Court emphasized that the Sixth Amendment’s

guarantee “applies to pretrial critical stages that are part of the whole course of a

criminal proceeding, a proceeding in which defendants cannot be presumed to make

critical decisions without counsel’s advice.” Id. at 165.

Reviewing de novo and unconstrained by § 2254(d)(1)—because the state

court had misapplied Strickland—the Court ruled that the defendant “ha[d] satisfied

Strickland’s two-part test.” Id. at 174. In finding a reasonable probability that the

defendant and the trial court would have accepted the offered plea, the Court noted

that the defendant’s ultimate sentence was “3 & half[] times greater” than he would

have received under the offered plea agreement. Id. As the “correct remedy,” the

Court ordered “the State to reoffer the plea agreement.” Id. Once that was done, the

trial court could exercise its “discretion in all the circumstances of the case.” Id. at

175.

As we turn to Honie’s appeal, we must remember that unlike the above trio of

Supreme Court cases, Honie’s case is subject to the stringent dictates of 28 U.S.C.

§ 2254(d)(1). Accordingly, we are not free to extend Supreme Court holdings as if on

direct appeal. Instead, AEDPA’s tightly turned screws limit our review. See White v.

Woodall, 572 U.S. 415, 417 (2014) (referring to § 2254(d) as “a provision of law that

some federal judges find too confining, but that all federal judges must obey”).

35 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 36

B. AEDPA: General Principles

In reviewing AEDPA claims, the standard of review “depends on how that

claim was resolved by the state courts.” Byrd v. Workman, 645 F.3d 1159, 1165 (10th

Cir. 2011) (citation omitted). Where, as here, the state court has adjudicated a claim

on the merits, we may grant habeas relief 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.”9 28 U.S.C.

§ 2254(d)(1).

We begin by determining whether clearly established law applies to Honie’s

claim. Marshall v. Rodgers, 569 U.S. 58, 61 (2013) (per curiam) (“The starting point

for cases subject to § 2254(d)(1) is to identify the clearly established Federal law, as

determined by the Supreme Court of the United States that governs the habeas

petitioner’s claims.” (internal quotation marks and citations omitted)); House v.

Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008) (“Whether the law is clearly established

is the threshold question under § 2254(d)(1).” (citation omitted)); see also House,

527 F.3d at 1017 (“[W]ithout clearly established federal law, a federal habeas court

need not assess whether a state court’s decision was contrary to or involved an

unreasonable application of such law.” (internal quotation marks and citation

omitted)).

9 Petitioners may also challenge state-court rulings as being “based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). Here, Honie makes no such challenge. 36 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 37

Under § 2254(d)(1), clearly established Federal law “refers to the holdings, as

opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant

state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams v.

Taylor, 529 U.S. 362, 412 (2000)).10 If we determine that a petitioner has identified

clearly established law governing his claim, we next consider whether the state-court

decision was “contrary to” or an “unreasonable application” of that law. See House,

527 F.3d at 1018.

“A state court decision is ‘contrary to’ the Supreme Court’s clearly established

precedent ‘if the state court applies a rule different from the governing law set forth

in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court

has] on a set of materially indistinguishable facts.’” Frost v. Pryor, 749 F.3d 1212,

1223 (10th Cir. 2014) (alterations in original) (quoting Bell v. Cone, 535 U.S. 685,

694 (2002)). In making that assessment, we ask whether the Supreme Court’s cases

have confronted “the specific question presented by this case”; otherwise, “the state

court’s decision could not be ‘contrary to’ any holding from [the Supreme] Court.”

Woods v. Donald, 575 U.S. 312, 317 (2015) (per curiam) (quoting Lopez v. Smith,

574 U.S. 1, 6 (2014) (per curiam)). Indeed, the Supreme Court has repeatedly

“cautioned the lower courts . . . against ‘framing [its] precedents at . . . a high level of

10 So we may consider only Supreme Court decisions issued before May 30, 2014, when the Utah Supreme Court decided the merits of Honie’s ineffective-assistance claim. 37 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 38

generality.’” Lopez, 574 U.S. at 6 (quoting Nevada v. Jackson, 569 U.S. 505, 512

(2013) (per curiam)).

“A state court decision is an ‘unreasonable application’ of Supreme Court

precedent if ‘the state court identifies the correct governing legal rule from [the]

Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s

case.’” Frost, 749 F.3d at 1223 (alteration in original) (quoting Williams, 529 U.S. at

407). Notably, “an unreasonable application of federal law is different from an

incorrect application of federal law.” Harrington v. Richter, 562 U.S. 86, 101 (2011)

(quoting Williams, 529 U.S. at 410). “A state court’s determination that a claim lacks

merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on

the correctness of the state court’s decision.” Id. (quoting Yarborough v. Alvarado,

541 U.S. 652, 664 (2004)); see also Brown v. Davenport, 142 S. Ct. 1510, 1525

(2022) (ruling that “to prove the state court’s decision was unreasonable,” a habeas

petitioner “must persuade a federal court that no ‘fairminded juris[t]’ could reach the

state court’s conclusion under this Court’s precedents” (alteration in original)

(citation omitted)).

AEDPA’s highly deferential standard is “difficult to meet.” White, 572 U.S. at

419 (citation omitted). And that’s by design. Harrington, 562 U.S. at 102 (“If this

standard is difficult to meet, that is because it was meant to be.”). After all, federal

habeas review exists principally to correct “extreme malfunctions in the state criminal

justice systems, not a substitute for ordinary error correction through appeal.” Id. at

102–03 (emphasis added) (internal quotation marks and citation omitted).

38 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 39

Finally, we review de novo the district court’s legal analysis of the state-court

decision and any factual findings for clear error. Byrd, 645 F.3d at 1166–67.

C. Honie fails to surmount AEDPA’s bar.

1. Clearly Established Law: General Ineffective-Assistance-of- Counsel Standard Under Strickland

We begin by identifying whether clearly established law applies to Honie’s

claim. On this point, “[i]t is past question that the rule set forth in Strickland qualifies

as clearly established Federal law, as determined by the Supreme Court of the United

States.” Williams, 529 U.S. at 391 (internal quotation marks omitted); see also

Padilla v. Kentucky, 559 U.S. 363, 366 (2010) (declaring that “Strickland applies to

Padilla’s claim,” which was based on counsel’s failure to advise the defendant of the

negative immigration consequences of a guilty plea).

Thus, Honie meets § 2254(d)(1)’s clearly-established-law requirement,

because Strickland’s general, two-pronged ineffective-assistance-of-counsel standard

applies to his claim. But for Honie’s particular claim to succeed, he must show that,

at the time of its ruling, the Utah Supreme Court unreasonably applied Strickland’s

general prejudice standard in the context of ineffective-assistance claims stemming

from a defendant’s waiver of his right to jury sentencing in a capital case. See

§ 2254(d)(1). Or, put differently, the question is whether the Utah Supreme Court

was obliged, under clearly established federal law, to apply Hill’s process-based

approach to Strickland’s general prejudice standard when deciding Honie’s

39 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 40

ineffective-assistance claim based on his waiver of jury sentencing in his capital case,

rather than the substantive-outcome approach originally applied in Strickland.11

This court’s COA question zeroed in on that precise question. As the COA

question foretold, Honie’s claim rises or falls on whether Hill, Flores-Ortega, and

Lafler hold that the process-based prejudice standard applies to waivers of jury

sentencing. As spelled out next, none of those cases do.

In Hill, the Court held “that the two-part Strickland v. Washington test applies

to challenges to guilty pleas based on ineffective assistance of counsel.” 474 U.S. at

58. The Court continued by stating that the “second, or ‘prejudice,’ requirement, on

the other hand, focuses on whether counsel’s constitutionally ineffective performance

affected the outcome of the plea process. In other words, in order to satisfy the

‘prejudice’ requirement, the defendant must show that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.” Id. at 59.

As seen, the holding is a narrow one about pleas.

In Flores-Ortega, the Court began by holding that Strickland’s general

standard for ineffective assistance of counsel “applies to claims, like respondent’s,

that counsel was constitutionally ineffective for failing to file a notice of appeal.” 528

U.S. at 477. The Court next held that “to show prejudice in these circumstances, a

11 Under § 2254(d), defendants alleging that deficient performance prejudiced them in the plea context are able to show this second level of clearly established law, because the Supreme Court has already applied a process-based prejudice test in the plea context. See, e.g., Premo v. Moore, 562 U.S. 115, 129, 131–32 (2011) (applying Hill’s process-based prejudice test in a § 2254(d) case involving a plea situation). But Honie offers nothing similar in the jury-sentencing-waiver context. 40 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 41

defendant must demonstrate that there is a reasonable probability that, but for

counsel’s deficient failure to consult with him about an appeal, he would have timely

appealed.” Id. at 484 (emphasis added). The Court further held that “when counsel’s

constitutionally deficient performance deprives a defendant of an appeal that he

otherwise would have taken, the defendant has made out a successful ineffective

assistance of counsel claim entitling him to an appeal.” Id. As seen, these holdings

narrowly apply to appeals.

Finally, in Lafler, the Court ruled that “[t]he standard for ineffective assistance

under Strickland has thus been satisfied,” after concluding that “[a]s to prejudice,

respondent has shown that but for counsel’s deficient performance there is a

reasonable probability he and the trial court would have accepted the guilty plea.”

566 U.S. at 174 (citation omitted). After that, the Court ordered “the State to reoffer

the plea agreement.” Id. As seen, the holding is a narrow one about declined plea

offers.

The holdings in the three cases are precise to the claims raised—they govern

pleas and appeals. Nothing in the holdings addresses a waiver of a state-statutory

right to jury sentencing in a capital case. And we may not follow Honie’s suggested

course and tease out general principles from cases to fashion the needed clearly

established law. See Opening Br. 16 (arguing that, read together, Hill, Flores-Ortega,

and Lafler “clearly establish[] that where ineffective assistance of counsel causes a

defendant to forfeit a fundamental right that occurs prior to or after trial, the proper

41 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 42

prejudice inquiry is whether the defendant can demonstrate a reasonable probability

that but for counsel’s ineffectiveness, he would have opted to exercise that right”).

Honie’s theory for clearly established law goes far beyond the holdings in

these three cases. He says that those cases hold that a process-based prejudice

standard applies whenever counsel’s deficient performance “result[s] in forfeiture of

the decision to exercise a fundamental right that is reserved to the defendant, such as

the right to jury sentencing in a capital case.”12 Id. at 7. As spelled out above, the

cases are far more precise in their holdings.

We acknowledge that in Flores-Ortega, the Court states that applying the

process-based prejudice test in the appeal context “breaks no new ground, for it

mirrors the prejudice inquiry applied in Hill v. Lockhart, and Rodriquez v. United

States.” 528 U.S. at 485 (internal citations omitted). But we read this as the Court

merely recognizing—in a collateral proceeding—that the process-based prejudice test

is not a “new” rule under Teague v. Lane, 489 U.S. 288 (1989). See Chaidez v.

United States, 568 U.S. 342, 353–55, 358 (2013) (concluding that “[t]his Court

announced a new rule in Padilla” because that case “had to develop new law,

establishing that the Sixth Amendment applied at all [to failure to advise about

deportation consequences of a conviction], before it could assess the performance of

Padilla’s lawyer under Strickland” (citation omitted)). Because the process-based

12 We do not decide whether a jury-sentencing right under Utah statutes amounts to a fundamental right. 42 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 43

prejudice was not “new” law in Flores-Ortega, the Court had no issue applying it in a

new setting.

On the heels of this discussion, Flores-Ortega notes that “[l]ike the decision

whether to appeal, the decision whether to plead guilty (i.e., waive trial) rested with

the defendant and, like this case, counsel’s advice in Hill might have caused the

defendant to forfeit a judicial proceeding to which he was otherwise entitled.” 528

U.S. at 485. But that doesn’t mean that process-based prejudice applies universally

whenever deficient performance causes a defendant to forfeit a fundamental right in

the defendant’s control. If the Court in Hill had wanted such a broad holding, it could

have said so. And had it done so, the Court in Flores-Ortega could simply have cited

and applied the broad rule. But it did not.

Finally, we note that Honie’s claim differs in important ways from those

presented in Hill, Flores-Ortega, and Lafler. First, Honie doesn’t complain that his

counsel’s deficient performance caused him to forfeit or participate in a proceeding.

He acknowledges the need for a sentencing proceeding and merely complains about

who was the sentencer. Second, Honie claims that his counsel refused to try to

withdraw his waiver of jury sentencing. Those situations differ from the situations in

Hill, Flores-Ortega, or Lafler. Honie cites no Supreme Court holding requiring that

the process-based prejudice standard apply in those circumstances.

43 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 44

Apart from the three cases listed in the COA question, Honie also cites Jones

v. Barnes, 463 U.S. 745 (1983).13 As he notes, that case left for counsel the

trial-management decisions and for the defendant the decisions regarding

fundamental rights. As fundamental rights, Honie lists these mentioned in Jones: a

defendant’s decision “whether to plead guilty, waive a jury, testify in his or her own

behalf, or take an appeal.” Reply Br. 9 (quoting Jones, 463 U.S. at 751). But Jones

provides Honie little help. If it set the all-encompassing ruling Honie relies on it for,

Hill and later cases could just have cited Jones and been finished. They didn’t.

Further, we note (1) that Jones preceded Strickland so isn’t applying it, and (2) that

Jones didn’t have to navigate the shoals of AEDPA, § 2254(d)(1).

In our view, Honie argues as if his case is on direct appeal. If his case were in

that posture, he could certainly argue that the next logical step after Hill,

Flores-Ortega, and Lafler would be for the Supreme Court to apply the

process-based prejudice standard to his ineffective-assistance claim and

jury-sentencing waiver. And he might prevail. But AEDPA deference bars federal

courts from second-guessing state court decisions until a Supreme Court holding

applies the relevant legal rule to the new context applicable to the petitioner.14 See

Wellmon v. Colo. Dep’t of Corr., 952 F.3d 1242, 1250 (10th Cir. 2020).

13 On the same point, he also relies on McCoy v. Louisiana, 138 S. Ct. 1500 (2018), but that case was decided after the Utah Supreme Court’s decision. 14 Thus, though Vickers v. Superintendent Graterford SCI, 858 F.3d 841 (3d Cir. 2017), might carry weight if Honie’s case were before us on de novo review, it didn’t involve AEDPA review so isn’t on point here. 44 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 45

The Supreme Court emphasized this point in White. There, the petitioner,

having pleaded guilty to capital murder, called character witnesses at the

penalty-phase portion of the trial but declined to testify himself. 572 U.S. at 418. He

asked the trial judge “to instruct the jury that ‘[a] defendant is not compelled to

testify and the fact that the defendant did not testify should not prejudice him in any

way.’” Id. (alteration in original) (citation omitted). The trial court refused, and the

Kentucky Supreme Court affirmed. Id.

The Kentucky Supreme Court and the Sixth Circuit identified three Supreme

Court decisions “as the relevant precedents”: Carter v. Kentucky, 450 U.S. 288

(1981), Estelle v. Smith, 451 U.S. 454 (1981), and Mitchell v. United States, 526 U.S.

314, 319 (1999). White, 572 U.S. at 420. Carter established the Fifth Amendment

right to a no-adverse-inference instruction at the guilt phase of a trial. Id. at 420

(citing 450 U.S. at 294–95). Estelle recognized that the Fifth Amendment applies

equally to the penalty phase and the guilt phase of a capital trial. Id. (citing 451 U.S.

at 456–57). And Mitchell “disapproved a trial judge’s drawing of an adverse

inference from the defendant’s silence at sentencing ‘with regard to factual

determinations respecting the circumstances and details of the crime.” Id. (quoting

526 U.S. at 317–30). Based on those three cases, the Sixth Circuit ruled that the state

trial court needed to give a no-adverse-inference instruction at the penalty phase just

as it would in the guilt phase. Id.

The Supreme Court reversed. It explained:

45 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 46

Perhaps the logical next step from Carter, Estelle, and Mitchell would be to hold that the Fifth Amendment requires a penalty-phase no-adverse- inference instruction in a case like this one; perhaps not. Either way, we have not yet taken that step, and there are reasonable arguments on both sides—which is all Kentucky needs to prevail in this AEDPA case. The appropriate time to consider the question as a matter of first impression would be on direct review, not in a habeas case governed by § 2254(d)(1).

Id. at 427.

Though White applied § 2254(d)’s “unreasonable application” prong, that case

applies with equal force here. The Supreme Court may eventually apply the Hill

prejudice standard in cases involving jury-sentencing waivers. But it hasn’t done so

yet, and it may never. The Court has applied process-based prejudice incrementally

and outside of § 2254(d)(1). Until the Court issues a holding extending process-based

prejudice to jury-sentencing waivers, we can’t say that Utah’s applying Strickland’s

substantive-outcome prejudice standard was contrary to or an unreasonable

application of the Supreme Court’s ineffective-assistance-of-counsel cases.

Nor does the Supreme Court’s decision in Marshall v. Rogers boost Honie’s

claim. Honie cites that case for the proposition that “a decision framed in general

terms can be deemed to have ‘clearly established’ a rule with respect to a variety of

fact-specific situations that come within the general rule.” Opening Br. 16. Though

conceding that the Supreme Court has never applied Hill prejudice to an ineffective-

assistance claim involving a jury-sentencing waiver, Honie implies that a broader

rule derived from Hill, Flores-Ortega, and Lafler can be applied to the novel context

presented here. But Marshall cannot carry that load.

46 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 47

In Marshall, the petitioner waived his right to counsel three times in the

interval between his arraignment and trial in California state court. 569 U.S. at 59.

Ultimately, he elected to represent himself at trial but then sought representation to

help him file a motion for a new trial. Id. The trial court denied the request for

counsel and later denied the pro se motion for a new trial. Id. at 60. The petitioner

then sought habeas relief, asserting that California’s courts had violated his Sixth

Amendment right to counsel. Id. The Ninth Circuit agreed and granted him relief. Id.

at 60–61.

The Supreme Court reversed. The parties disputed whether the Supreme

Court’s ineffective-assistance-of-counsel caselaw constituted clearly established law

that resolved “whether, after a defendant’s valid waiver of counsel, a trial judge has

discretion to deny the defendant’s later request for reappointment of counsel.” Id. at

61. The Court began by noting that the Ninth Circuit had correctly concluded that

“the Supreme Court ha[d] never explicitly addressed” that issue. Id. at 62.

The Court then reaffirmed that the inquiry doesn’t necessarily end simply

because it hasn’t yet passed on a question of law: “[The Ninth Circuit] (also

correctly) recognized that the lack of a Supreme Court decision on nearly identical

facts does not by itself mean that there is no clearly established federal law, since ‘a

general standard’ from this Court’s cases can supply such law.” Id. (quoting

Yarborough, 541 U.S. at 664). Even so, the Court reversed the Ninth Circuit’s grant

of habeas relief. Id. at 64–65. In reviewing its Sixth Amendment caselaw, the Court

recognized the “tension” between a defendant’s constitutional right to counsel and

47 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 48

the right to proceed pro se. Id. at 63. California resolved that tension by giving trial

judges broad discretion to assess post-waiver requests for counsel based on the

totality of the circumstances. Id. at 62–63. And because the Supreme Court’s

holdings don’t require state courts to resolve the tension by appointing counsel in

these circumstances, the Court reasoned that “it cannot be said that California’s

approach is contrary to or an unreasonable application of the ‘general standard[s]’

established by the Court’s assistance-of-counsel cases.” Id. at 63 (alteration in

original) (quoting Alvarado, 541 U.S. at 664).

So too here. Because the Supreme Court hasn’t held that the process-based

prejudice standard governs jury-sentencing waivers in capital cases, “it cannot be

said that the state court ‘unreasonably applied’” Strickland in applying the outcome-

based prejudice test. Musladin, 549 U.S. at 77 (alterations omitted) (quoting

§ 2241(d)(1)).

In summary, Honie’s claim fails for two primary reasons. First, the Supreme

Court has never applied Strickland’s general prejudice standard in a case involving a

waiver of jury sentencing in a capital case. And second, the Supreme Court has never

held—including in Hill, Flores-Ortega, or Lafler—that a process-based prejudice test

applies to jury-sentencing waivers.

CONCLUSION

For all these reasons, we affirm.

48 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 49

19-4158, Honie v. Powell, LUCERO, Senior Circuit Judge, concurring in part and dissenting in part:

In 2002, the Supreme Court declared in Ring v. Arizona that the constitutional

right to a fair trial in capital cases inherently and fundamentally includes a jury

determination of aggravating factors for sentencing. 536 U.S. 584 (2002) (striking down

alternative schemes of sentencing that required judicial determination of aggravating

factors). In doing so, the Court was unequivocal: “The guarantees of jury trial in the

Federal [] Constitution[] reflect a profound judgment about the way in which law should

be enforced and justice administered. . . . If the defendant prefer[s] the common-sense

judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single

judge, he [i]s to have it.” Id. at 609. It further declared: “The Sixth Amendment jury trial

right [] does not turn on the relative rationality, fairness, or efficiency of potential

factfinders.” Id. at 607.

Three Supreme Court cases, Hill v. Lockhart, 474 U.S. 52 (1985), Roe v. Flores-

Ortega, 528 U.S. 470 (2000), and Lafler v. Cooper, 566 U.S. 156 (2012), establish that

when counsel’s deficient performance deprives a criminal defendant of a right that only a

defendant personally can waive, the proper prejudice inquiry is if, but for counsel’s

errors, the defendant would have exercised the right at issue. Petitioner Taberon Honie

asserts that his trial attorney’s deficient performance deprived him of his statutory right to

have a jury, not a judge, decide if he should be sentenced to death. In denying Honie

relief, both the state court and my respected colleagues erroneously interpret and apply

the holdings of Hill, Flores-Ortega, and Lafler. Because my majority colleagues also Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 50

erroneously conclude that the prejudice standard clarified by the foregoing cases fails to

provide “clearly established Federal law” applicable to Honie’s ineffective assistance

claim, 28 U.S.C. § 2254(d)(1), I must respectfully dissent.

I would hold that the Utah Supreme Court’s application of a purely outcome-

focused prejudice inquiry—requiring Honie to show he would have received a lesser

sentence, but for counsel’s ineffectiveness—was “contrary to” clearly established law,

§ 2254(d)(1), and that the Antiterrorism and Effective Death Penalty Act (AEDPA) does

not preclude us from granting relief. That court applied an incorrect legal standard when

it deviated from the clear requirements of Hill, Flores-Ortega, and Lafler. These cases, in

turn, are applications of the Supreme Court’s command in Strickland v. Washington, 466

U.S. 668 (1984), that the prejudice inquiry in an ineffective assistance case must be tied

to the proceeding in which counsel’s alleged error occurred. Id. at 694. The Utah court

did the opposite, imposing an impossible, outcome-focused prejudice standard that

categorically turns the deprivation of Honie’s structural and fundamental choice of a

capital sentencer into a harmless error inquiry. Honie could not possibly show that a

hypothetical jury would have spared him the death penalty when the trial judge did not,

nor is he required to do so under Hill and cases that follow.

I further conclude, on de novo review pursuant to Byrd v. Workman, 645 F.3d

1159, 1166-67 (10th Cir. 2011), Honie has demonstrated a violation of his Sixth

Amendment right to effective assistance of counsel under Hill. Honie’s unrebutted

affidavit and corresponding record evidence establish a reasonable probability that, if not

for counsel’s improper refusal to withdraw Honie’s jury sentencing waiver, he would

2 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 51

have exercised his statutory right to have a jury decide his capital sentence. The error is

of a structural nature. I would therefore reverse the decision of the district court, grant a

writ of habeas corpus, and remand for a new sentencing proceeding in state court in front

of a jury.1

I

The facts of the murder for which Honie was convicted are not in dispute. But

their serious nature does not alter our analysis because the Constitution guarantees rights

“to the innocent and the guilty alike.” Kimmelman v. Morrison, 477 U.S. 365, 380

(1986). For criminal defendants, these rights include the right to effective assistance of

counsel throughout all critical stages of a criminal proceeding, Lafler, 566 U.S. at 165,

and the right to make certain fundamental decisions regarding one’s representation, see

Jones v. Barnes, 463 U.S. 745, 751 (1983); McCoy v. Louisiana, 138 S. Ct. 1500, 1508

(2018). Such decisions include “whether to plead guilty, waive a jury, testify in his or

her own behalf, or take an appeal.” Jones, 463 U.S. at 751 (emphasis added). Utah law

provides capital defendants with the right to be sentenced by a jury. See Utah Code Ann.

§ 76-3-207(1)(c)(i) (1998).2 All twelve jurors must find that the death penalty is justified

beyond a reasonable doubt, otherwise the punishment may not be imposed. § 76-3-

1 I agree with my colleagues that we have authority to expand the certificate of appealability in this case to consider Honie’s full ineffective assistance claim. I also agree that Honie’s claims were preserved below. I therefore join these parts of the majority opinion. 2 While I cite to the statute as it existed when Honie was tried, a substantially identical version remains in effect. See generally Utah Code Ann. § 76-3-207 (2021). 3 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 52

207(4)(b)-(c). Utah’s capital jury sentencing right may be waived by the defendant with

the consent of the judge and prosecutor. § 76-3-207(1)(c)(i).

Prior to trial and on his attorney’s advice, Honie signed a waiver of his statutory

right to a jury sentencing. Honie was convicted, and the trial judge sentenced him to

death. But in a 2005 affidavit, Honie claimed that his attorney failed to adequately

explain what he was giving up by waiving his jury sentencing right. Honie averred that

he asked his attorney to withdraw the jury sentencing waiver a week after he signed it and

before the start of trial. However, Honie’s trial counsel told him it was “too late” and

made no effort to withdraw the waiver—even though the judge and prosecutor repeatedly

had stated their intention to defer to Honie’s choice of sentencer.

At the post-conviction relief stage, the Utah Supreme Court rejected Honie’s

ineffective assistance claims. See Honie v. State, 342 P.3d 182, 200-02 (Utah 2014).

Applying Strickland, it concluded that Honie’s waiver of his jury sentencing right was

knowing and voluntary. Id. at 201. It then assumed as true Honie’s claim that he asked

counsel to withdraw his waiver. Id. Yet it held that, even if Honie’s trial counsel

performed deficiently, Honie could not establish prejudice because he had “offered no

evidence tending to establish that the outcome of his sentencing would have been

different had he opted for jury sentencing.” Id. (emphasis added). Never mind that such

a showing was impossible: Honie’s trial jury was dismissed before sentencing and did

not hear his mitigating evidence, including Honie’s young age (22 years old at the time of

the crime), his lack of criminal history, his struggles with drug abuse and depression, and

his statements of remorse. See California v. Ramos, 463 U.S. 992, 1008 (1983)

4 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 53

(explaining that, while trials are narrowly focused on guilt or innocence, jurors at capital

sentencing proceedings are “free to consider a myriad of factors to determine whether

death is the appropriate punishment”).3 This purely outcome-focused approach runs

counter to the Supreme Court’s commands, beginning in Strickland itself, as to the proper

prejudice inquiry in cases like Honie’s. See Strickland, 466 U.S. at 693-94 (rejecting a

categorical rule requiring defendants to show that counsel’s errors “likely . . . altered the

outcome in the case,” and instead holding that defendants must establish “a reasonable

probability that . . . the result of the proceeding would have been different”) (emphasis

added). The error is patent. Instead of analyzing if the factual issues were presented to

the correct (i.e., structural) forum—a jury of twelve or a judge of one—it substituted a

harmless error inquiry. In doing so, it also implicitly assumed the trial court would have

granted the withdrawal motion.

Utah asks us to bless its state court’s adjudication of Honie’s claim. But as I

explain below, not even AEDPA can justify that court’s departure from Supreme Court

precedent clearly establishing that a process-focused prejudice test applies to ineffective

3 The impossibility of this task is relevant in two ways. First, it amounts to a determination that ineffective assistance depriving a defendant of a fundamental right—in this case, the right to a capital jury sentencing—is categorically harmless. If proving prejudice under Strickland is functionally impossible, Sixth Amendment relief will never be available for these types of claims. Second, the Utah Supreme Court’s approach highlights the absurdity of using an incorrect, outcome-focused prejudice inquiry for these types of rights, given that the autonomy of the defendant to make certain choices in our criminal justice system is seen as necessary for a fair trial. See McCoy, 138 S. Ct. at 1508-09. As a result, deprivation of the defendant’s autonomy to make fundamental decisions renders the trial unfair. See Strickland, 466 U.S. at 686 (in giving meaning to the constitutional requirement of effective assistance, courts “must take its purpose—to ensure a fair trial—as the guide”). 5 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 54

assistance claims related to the loss of a fundamental right that only a criminal defendant

personally may waive.

II

AEDPA limits our ability to grant habeas relief from a state court’s adjudication

on the merits unless 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.” 28 U.S.C. § 2254(d)(1). When a state court

applies a rule that contradicts Supreme Court precedent, its decision is “contrary to”

clearly established law and not entitled to AEDPA deference. Lockett v. Trammell, 711

F.3d 1218, 1231 (10th Cir. 2013). “The starting point for cases subject to § 2254(d)(1) is

to identify the clearly established Federal law . . . that governs the habeas petitioner’s

claims.” Marshall v. Rodgers, 569 U.S. 58, 61 (2013) (quotations omitted).

The majority argues that Hill, Flores-Ortega, and Lafler fail to clearly establish

that a process-based prejudice standard applies to ineffective assistance claims arising out

of capital jury sentencing waivers. Only by ignoring the clear language of these cases, of

Strickland and of Ring, could my colleagues hope to support such a conclusion. As I

proceed to elaborate, Hill, Flores-Ortega, and Lafler leave no doubt a prejudice standard

which focuses on process leading to waiver of the right in question applies to Honie’s

claim. I then show why, contrary to the view of my respected colleagues, such a standard

was “clearly established” at the time of the Utah Supreme Court’s decision.

§ 2254(d)(1). Because that court failed to apply the correct prejudice standard to Honie’s

6 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 55

claim, its decision was “contrary to” governing Supreme Court caselaw and not entitled

to AEDPA deference. Id.

A

Strickland provides the starting point for our analysis. That case established the

two-pronged standard for ineffective assistance claims. It requires a defendant to show

both (1) that counsel performed deficiently and (2) that the deficient performance

prejudiced the defendant. Strickland, 466 U.S. at 688, 694. Because the petitioner in

Strickland challenged the actions of his attorney at his sentencing hearing, the Supreme

Court framed the prejudice inquiry as being whether, but for counsel’s errors, the

sentencing outcome would have been different. Id. at 695. But the Court cautioned that

“the principles we have stated do not establish mechanical rules.” Id. at 696. Indeed, it

specifically declined to adopt a prejudice standard that required a defendant to “show that

counsel’s deficient conduct more likely than not altered the outcome in the case.” Id. at

693. Rather, the “ultimate focus of inquiry must be on the fundamental fairness of the

proceeding whose result is being challenged.” Id. at 696 (emphasis added).

Thus, while the context of the petitioner’s claim in Strickland dictated that the

prejudice inquiry hinge on the outcome of his sentencing, the opinion made clear that the

nature of the prejudice inquiry will vary based on a claim’s context and the proceeding in

which the attorney’s relevant conduct occurred. See id. at 695 (“The governing legal

standard plays a critical role in defining the question to be asked in assessing the

prejudice from counsel’s errors.”). And the Supreme Court has repeatedly heeded this

command when faced with ineffective assistance claims involving the deprivation of a

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fundamental right which only a criminal defendant may choose to exercise. In each case,

the Court has focused the prejudice inquiry not on the ultimate trial or sentencing

outcome, but rather on the process leading to the loss of the right in question.

Nothing can be more fundamental to process than the right to trial by jury, which

extends to the right to be sentenced by a jury in capital cases. Ring v. Arizona, 536 U.S.

584, 609 (2002). In Hill, the Supreme Court applied Strickland to a claim that counsel’s

deficient performance caused the defendant to accept a plea bargain he otherwise would

have rejected. Hill, 474 U.S. at 55-56. In analyzing prejudice, the Court did not ask

whether, but for counsel’s errors, the substantive result of the trial or sentencing would

have been different. Nor could it, because accepting the plea caused the defendant to

forego these proceedings altogether. Rather, the Court asked “whether counsel’s

constitutionally ineffective performance affected the outcome of the plea process.” Id. at

59 (emphasis added). It focused, in other words, on the process that led to the waiver of

the defendant’s right to a voluntary, knowing, and intelligent plea. Accordingly, the

petitioner in Hill could demonstrate prejudice if “but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.” Id.

Flores-Ortega subsequently clarified that the prejudice standard in Hill applied

beyond the plea-bargaining context. That case involved the waiver of a right to direct

appeal due to counsel’s failure to file the appropriate notice. Flores-Ortega, 528 U.S. at

474. Recognizing that it would be “unfair to require a[] . . . defendant to demonstrate that

his hypothetical appeal might have had merit,” the Court held that, to show prejudice, the

petitioner need only establish a reasonable probability that “but for counsel’s deficient

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conduct, he would have appealed.” Id. at 486. Crucially, the Court emphasized that “this

prejudice standard breaks no new ground, for it mirrors the prejudice inquiry applied in

Hill.” Id. at 485. This was so, because “the decision whether to appeal, [like] the

decision whether to plead guilty (i.e., waive trial) rested with the defendant,” and

counsel’s actions “might have caused the defendant to forfeit a judicial proceeding to

which he was otherwise entitled.” Id.

Finally, in Lafler, the Supreme Court applied this proceeding-focused prejudice

approach when a defendant forfeited a fundamental right prior to trial, but thereafter

received a fair adjudication. The petitioner in that case claimed ineffective assistance

when his counsel erroneously advised him against accepting a guilty plea he should have

taken. See Lafler, 566 U.S. at 163-64. The Court explicitly rejected the argument that a

fair adjudication “wipe[d] clean any deficient performance” prior to trial. Id. at 169-70.

Rather, it held that the petitioner could establish prejudice by showing that, but for

counsel’s unreasonable errors, the guilty plea would have been presented to and accepted

by the court. Id. at 164. As in Hill and Flores-Ortega, the focus of the Court’s prejudice

inquiry was “the fairness and regularity of the processes” surrounding trial “which caused

the defendant to lose benefits he would have received in the ordinary course but for

counsel’s ineffective assistance.” Id. at 169.

Lafler “made explicit the principle underlying [the Supreme Court’s] decisions in

Hill and Flores-Ortega.” Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 856

(3d Cir. 2017) (applying Hill’s prejudice standard to the waiver of the right to a jury

trial). That principle requires that when a defendant claims ineffective assistance arising

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out of the waiver of a fundamental right that only the defendant can personally waive, the

proper prejudice inquiry is whether the defendant can demonstrate a reasonable

probability that, but for counsel’s ineffectiveness, they would have opted to exercise that

right. See Vickers, 858 F.3d at 857. Moreover, this rule is merely a specific application

of Strickland itself, which emphasized that the focus of the prejudice inquiry must be on

the “fundamental fairness of the [challenged] proceeding,” Strickland, 466 U.S. at 697,

including, in Honie’s case, a pre-trial process which results in the waiver of a jury right.

In all important respects, Honie’s claim is closely analogous to those at issue in

Hill, Flores-Ortega, and Lafler. Like decisions to accept a plea or file a direct appeal, the

choice of whether to waive a capital jury sentencing is structural and fundamental—only

the defendant can make it. See Jones, 463 U.S. at 751; see also State v. Maestas, 299

P.3d 892, 959 (Utah 2012) (recognizing in a capital case that the defendant “has the right

to make . . . fundamental decision[s] that go[] to the very heart of the defense”). And as

in Hill and its progeny, Honie could not plausibly establish prejudice under Strickland by

asking solely whether the attorney’s errors altered the court’s determination of guilt or

the punishment imposed at sentencing. Asking Honie to offer evidence of how a

hypothetical jury would have sentenced him makes no more sense than requiring the

petitioner in Flores-Ortega to “demonstrate that his hypothetical appeal might have had

merit.” Flores-Ortega, 528 U.S. at 486. Nor, as Lafler instructs, can the fairness of

Honie’s ultimate sentencing hearing cure the deprivation of his right to have twelve

peers—rather than a judge—decide whether he should be condemned to death. The focus

of the prejudice inquiry must be on the process surrounding his jury waiver, which

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caused Honie “to lose benefits he would have received in the ordinary course but for

counsel’s ineffective assistance.” Lafler, 566 U.S. at 169. To require Honie to speculate

about a hypothetical jury’s sentence, as the state court did in this case, not only defies

logic and relegates the deprivation of a fundamental right to a categorical harmless

error—it outright ignores the clear collective command of the Supreme Court’s

ineffective assistance caselaw.

The Third Circuit’s reasoning in Vickers—the only circuit opinion to consider in-

depth the application of Hill to jury waivers following Lafler—is instructive. In Vickers,

trial counsel improperly failed to ensure that the petitioner, who was convicted following

a bench trial, knowingly waived his right to a jury trial. See Vickers, 858 F.3d at 850-52.

The Third Circuit determined that, after Lafler, there was “no longer any ambiguity” that

Hill’s prejudice standard applies to ineffective assistance claims arising out of jury trial

waivers—even if the defendant’s adjudication in front of a judge is ultimately fair. Id. at

857. The court emphasized it was not extending or creating law, but merely “align[ing its

prejudice test] with the Supreme Court’s [] decision in Lafler.” Id. at 857 n.15. While

the Third Circuit was not constrained by AEDPA in its analysis, id. at 849,4 we have said

that we may “consult the precedent of lower courts . . . to ascertain the contours of clearly

established Supreme Court precedent.” Littlejohn v. Trammell, 704 F.3d 817, 828 n.3

(10th Cir. 2013). Thus, Vickers’ reasoning—and its conclusion that it merely aligned its

4 Prior to analyzing the merits, the Third Circuit determined that the state court had failed to apply Strickland altogether in evaluating the petitioner’s claim, resulting in a decision that was contrary to clearly established law. See Vickers, 858 F.3d at 849.

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prejudice test with the Supreme Court’s—is persuasive in our determination of the scope

of clearly established law at the time of Honie’s claim.5

B

My colleagues acknowledge that Hill, Flores-Ortega, and Lafler have applied

Strickland’s prejudice requirement to the procedural contexts in which they arose—guilty

pleas, notices of appeal, and plea offers. But the majority nonetheless concludes that,

under AEDPA, these cases fail to provide clearly established law applicable to ineffective

assistance claims involving waivers of a right to capital jury sentencing. I not only

disagree, I consider such a determination both unreasonable and unfair.

We have said that clearly established law under AEDPA is limited to “Supreme

Court holdings in cases where the facts are at least closely-related or similar to the case

sub judice.” House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). Utah and my

colleagues take this to mean that AEDPA requires us to ignore the essential reasoning of

Hill and its progeny, cabining our analysis to rote recitations of these cases’ narrow

holdings. Thus, the majority states that “[u]ntil the [Supreme] Court issues a holding

extending [Hill] process-based prejudice to jury-sentencing waivers, we can’t say that

5 The majority brushes aside Vickers by noting that it “didn’t involve AEDPA review so [it] isn’t on point here. Nonetheless, a case that isn’t on point can serve as an illustrative persuasive authority. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003) (“circuit law may be ‘persuasive authority’ [in AEDPA cases] for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law” even though “only the Supreme Court’s holdings are binding on the state courts”); see also Littlejohn, 704 F.3d at 828 n.3.

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Utah’s appl[ication of] Strickland’s substantive-outcome prejudice standard was contrary

to or an unreasonable application of the Supreme Court’s assistance-of-counsel cases.”

Again, I respectfully disagree and consider that language unreasonable, unfaithful to clear

Supreme Court jurisprudence, and unfair.

Respectfully, I believe the majority oversimplifies AEDPA’s clearly established

inquiry in this case. The Supreme Court has repeatedly emphasized that a holding based

on “identical facts” is not required to find clearly established law. Marshall, 569 U.S. at

62; Panetti v. Quarterman, 551 U.S. 930, 953 (2007); see also Carey v. Musladin, 549

U.S. 70, 81 (2006) (Kennedy, J., concurring) (“AEDPA does not require state and federal

courts to wait for some nearly identical factual pattern before a legal rule must be

applied.”). Rather, a “general standard” set forth by the Court can supply clearly

established law to a variety of factual scenarios. Marshall, 569 U.S. at 62. Strickland is

the paramount example of this. See Murphy v. Royal, 875 F.3d 896, 922 (10th Cir. 2017)

(“Although claims of lawyer ineffectiveness are each unique and require fact-intensive

analysis, Strickland’s framework still applies, and the variety of fact patterns obviates

neither the clarity of the rule nor the extent to which the rule must be seen as established

by [the Supreme] Court.” (internal quotations omitted)). Our circuit has recognized the

difficult judgments inherent in AEDPA’s clearly established law analysis. In House, for

example, we cautioned against “mechanistically seek[ing] to determine whether there are

Supreme Court holdings that involve facts that are indistinguishable from the case at

issue.” House, 527 F.3d at 1015 n.5. Instead, judges must “exercise a refined judgment

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and determine the actual materiality of the lines (or points) of distinction between

existing Supreme Court cases and the particular case at issue.” Id.

Relatedly, the Supreme Court has distinguished between extending clearly

established law to new contexts absent a Supreme Court holding—which AEDPA

forbids—and applying a clearly established rule to fact patterns it already encompasses.

See Yarborough v. Alvarado, 541 U.S. 652, 666 (2004). “The difference between

applying a rule and extending it is not always clear, but certain principles are

fundamental enough that when new factual permutations arise, the necessity to apply the

earlier rule will be beyond doubt.” White v. Woodall, 572 U.S. 415, 427 (2014) (cleaned

up). The Supreme Court has thus recognized that a standard can be clearly established

even if it has not been previously applied to the specific claim at issue. Williams v.

Taylor, 529 U.S. 362, 390-91 (2000); Yarborough, 541 U.S. at 666. For present purposes

there can be no distinction among the right to a jury trial for sentencing, and the right to a

jury trial on guilt itself. Honie asks us to apply an existing legal rule, employed

consistently across a specific type of ineffective assistance case (those involving the

waiver of fundamental trial rights), to a claim substantially analogous to those the

Supreme Court has considered previously. See Ring, 536 U.S. at 609.

The majority pays lip service to the Supreme Court’s command that clearly

established law does not require a case consisting of “identical facts.” Marshall, 569 U.S.

at 62. But my colleagues all but demand as much by holding that the Supreme Court

must address a claim identical to Honie’s before it finds Hill’s rule clearly established as

to jury sentencing waivers. Nor does the majority consider the consequences of its

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mechanical approach to ineffective assistance claims under AEDPA. Imagine a

defendant unknowingly and unintelligently waived their right to a jury trial due to

counsel’s deficient performance. See Vickers, 858 F.3d at 845 (presenting such a

scenario). Under the majority’s rationale, a state court could deny postconviction relief

unless the petitioner could make the utterly impossible showing that a hypothetical jury

would have found them innocent. This illogical result—which renders the deprivation of

a constitutional right as harmless error—contravenes Strickland and is exactly what Hill

and its progeny avoided by clarifying the prejudice standard for ineffective assistance

claims involving the waiver of fundamental rights belonging to a criminal defendant.

Of course, we have never required the Supreme Court to apply Strickland to a

specific ineffective assistance theory before finding its two-part test clearly established as

to a claim based on that theory. Williams, 529 U.S. at 390-91; Murphy, 875 F.3d at 922.

Rather, it is “past question” that Strickland provides clearly established law for all

ineffective assistance claims—even those based on theories of attorney error not

previously considered by the Supreme Court. Williams, 529 U.S. at 390. Hill is itself an

application of Strickland. And the Supreme Court has made clear that Hill’s rule was

never limited purely to the plea-bargaining context. This is why the Court in Flores-

Ortega emphasized that its application of Hill’s prejudice standard to a waiver of the right

to direct appeal “[broke] no new ground.” Flores-Ortega, 528 U.S. at 485. Rather, Hill’s

rule applies to scenarios involving a trial decision that “rest[s] with the defendant,” and

where counsel’s actions lead to the waiver of trial rights “to which [the defendant] was

otherwise entitled.” Id. In other words, it applies to a claim like Honie’s.

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In short, the Supreme Court has clearly established a rule that squarely answers

“the specific question presented by this case.” Woods v. Donald, 575 U.S. 312, 317

(2015) (quotation omitted). Hill, Flores-Ortega, and Lafler together make clear that when

counsel’s errors cause the waiver of a fundamental right which can be waived only by a

criminal defendant personally, the appropriate prejudice standard is whether, but-for

counsel’s errors, the defendant would have exercised the right in question. As explained

more below, there is no doubt that the choice Honie faced in this case—whether a jury or

judge should decide if he ought to be condemned to die—implicated a fundamental right

that, once vested, only the defendant could choose to exercise. See Jones, 463 U.S. at

751. Honie merely asked the Utah Supreme Court to apply the rule clarified by Hill and

its progeny, and rooted in Strickland, to a set of facts clearly within its ambit. The court’s

failure to do so was “contrary to . . . clearly established Federal law.” § 2254(d)(1).

C

Because Hill’s prejudice standard provides clearly established law as to Honie’s

claim, I am compelled to conclude that the Utah court’s opinion was “contrary to”

Supreme Court precedent and therefore not entitled to AEDPA deference.6 As described

6 Unlike my colleagues, I believe the state court’s failure to analyze trial counsel’s pre-waiver conduct under Strickland was contrary to clearly established law and not entitled to AEDPA deference. The state court concluded that because Honie’s waiver was “knowing and voluntary,” his attorney’s performance prior to the waiver’s signing was not deficient under Strickland. See Honie, 342 P.3d at 201. In Lafler, however, the Supreme Court held that merely asking whether the rejection of a plea was knowing and voluntary “is not the correct means by which to address a claim of ineffective assistance of counsel.” Lafler, 566 U.S. at 173 (citing Hill, 474 U.S. at 57). The state court’s failure in that case to analyze trial counsel’s conduct under Strickland was therefore contrary to clearly established law, and its opinion was not entitled to AEDPA deference. 16 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 65

above, a state court decision is “contrary to . . . clearly established Federal law” when it

applies a rule that contradicts the Supreme Court’s governing caselaw. Lockett, 711 F.3d

at 1231; see also Trammell v. McKune, 485 F.3d 546, 550 (10th Cir. 2007) (“AEDPA’s

deferential standard does not apply if the state court employed the wrong legal standard

in deciding the merits of the federal issue.” (quotation omitted)).

My colleagues and I agree that Honie fairly presented to the Utah Supreme Court

his argument that Hill’s prejudice standard should apply to his ineffective assistance

claim. That court nonetheless rejected Honie’s claim because he failed to offer “evidence

tending to establish that the outcome of his sentencing would have been different” with a

jury. Honie, 342 P.3d at 201 (emphasis added). As I explain above, Hill and its progeny

clearly establish that the correct prejudice standard in this case—and the one the Utah

court was bound to apply—required asking whether, but for his attorney’s unreasonable

conduct, Honie would have exercised his right to a capital jury sentencing. In fact, he did

so. He told his attorney he insisted on being sentenced by a jury and asked his attorney to

take the necessary steps to bring the matter to the trial judge’s attention and withdraw his

waiver. His attorney refused to do so. This is ineffective assistance of counsel. Because

the state court applied the wrong legal standard, AEDPA does not bar our ability to grant

habeas relief in this case.

Id.; see also Vickers, 858 F.3d at 849 (holding that a state court violated Strickland and Lafler by summarily concluding that the defendant’s jury trial waiver was “knowing and voluntary”). The same result should apply here. Ultimately, however, I need not reach this issue. Rather, I conclude that the state court’s prejudice analysis was contrary to clearly established law and, further, that Honie is entitled to relief based on his attorney’s failure to seek withdrawal of his jury waiver. 17 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 66

III

Having concluded that the Utah Supreme Court’s decision was not entitled to

AEDPA deference, I would proceed to the final step of the habeas inquiry: de novo

review of Honie’s federal claim to determine whether relief is warranted. See Panetti,

551 U.S. at 953-54. Because this review is de novo, the habeas court “can determine the

principles necessary to grant relief.” Lafler, 566 U.S. at 173. For the reasons described

above, I would hold the appropriate legal standard Honie must satisfy to demonstrate

ineffective assistance of counsel is Hill’s two-part test. That test requires Honie to show

that (1) his attorney performed deficiently and (2) a reasonable probability exists that, but

for his attorney’s ineffective assistance, Honie would have exercised the fundamental

right in question. See Hill, 474 U.S. at 58-59. I consider these requirements in turn,

determining that Honie is indeed entitled to habeas relief based on his trial attorney’s

failure to petition the court to withdraw his jury sentencing waiver.

To assess deficient performance under Strickland, we consider whether counsel’s

performance “fell below an objective standard of reasonableness” under “prevailing

professional norms.” Strickland, 466 U.S. at 688. This inquiry requires us to analyze

“the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690.

Honie satisfies this standard because, given the importance of the capital sentencing right

and the timing and circumstances of his withdrawal request, his attorney was obligated to

petition the court to withdraw his jury sentencing waiver.

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Longstanding professional rules and norms require defense counsel to allow

clients to make certain fundamental decisions regarding their defense. See Criminal

Justice Standards § 4-5.2 (Am. Bar Ass’n 1993, 3d ed.); accord Jones, 463 U.S. at 751.

At the time of Honie’s trial, those decisions reserved to the defendant included whether to

waive a jury trial. See Criminal Justice Standards § 4-5.2(a)(iii); 7 see also Utah Rules of

Pro. Conduct 1.2(a) (1999) (“[A] lawyer shall abide by the client’s decision . . . to waive

jury trial . . . .”). And the Supreme Court has emphasized that capital sentencing

proceedings resemble a trial and require commensurate substantive and procedural

protections. See Strickland, 466 U.S. at 686 (calling capital sentencing proceedings

“sufficiently like a trial”); Bullington v. Missouri, 451 U.S. 430, 445-46 (1981)

(extending the double jeopardy clause to capital sentencing determinations). Take

Honie’s case. Utah law required that his sentencer weigh aggravating and mitigating

evidence and determine whether the death penalty was justified beyond a reasonable

doubt. Utah Code Ann. § 76-3-207(4)(b)-(d) (1998). Honie’s choice of a sentencer was

therefore just as fundamental as the choice of a factfinder at trial. In fact, the choice of

the sentencing forum was arguably more important, given that Honie conceded his guilt

at trial. For Honie, the sentencing was the whole ballgame. Clearly his lawyer thought

Honie’s best chance at saving his life was before the judge. At first, Honie agreed. But

7 The ABA’s standards have been updated to include among those fundamental decisions reserved to the defendant “any . . . decision that has been determined in the jurisdiction to belong to the client.” Criminal Justice Standards § 4-5.2(b)(ix) (Am. Bar Ass’n 2017, 4th ed.). This would include, in Honie’s case, Utah’s law reserving to capital defendants the decision of whether to waive jury sentencing. 19 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 68

well before trial, he changed his mind. Honie unequivocally and unimpeachably asked

that his hearing be held before a jury. In declining to make this request to the court,

counsel arrogated unto himself the ultimate decision. It was not his decision to make.

Professional rules required counsel to carry out Honie’s wishes regarding his desired

sentencer. Counsel’s obligation is not altered by the above fact that Honie had previously

signed a waiver of his capital jury sentencing right. See Garza v. Idaho, 139 S. Ct. 738,

746 (2019) (holding that counsel performs deficiently by not complying with a

defendant’s request to file a notice of appeal, even when a defendant has waived

appellate rights as an express condition of a plea agreement).

The record contradicts counsel’s explanation to Honie that it was “too late” to

withdraw his jury sentencing waiver. See Criminal Justice Standard 4.5-1(a) (requiring

that defense counsel “advise the accused with complete candor”). Nothing before us

contradicts Honie’s declaration that he requested withdrawal of the waiver a week before

jury selection and nearly two weeks before trial was to begin. A prompt request would

have allowed the trial court to honor Honie’s wishes without causing undue delay. See

United States v. Mortensen, 860 F.2d 948, 950 (9th Cir. 1988) (withdrawal of a jury trial

waiver “is timely [if] granting the motion would not unduly interfere with or delay the

proceedings.”); Zemunski v. Kenney, 984 F.2d 953, 954 (8th Cir. 1993) (same). It well

could have been inconvenient to do so. But inconvenience is not the appropriate measure

to balance against a defendant’s life. In addition, the judge and prosecutor repeatedly

stated their intent to defer to Honie’s choice of sentencer. At the pre-trial hearing where

Honie signed his waiver, the prosecutor emphasized that his intent “in a case of this

20 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 69

magnitude is to give the defendant the benefit of the doubt on every request,” and that

“the only reason the state has consented and stipulated and agreed to [waiving jury

sentencing] is because it is this defendant’s choice and desire.” The judge responded that

Honie’s wishes were “partly why I am going in this direction too,” and added “[i]t’s the

state’s case and your case. But it’s your life that’s on the line, if you are convicted . . . .”

Given these facts, counsel’s stated reasoning for not petitioning the court was unfounded,

at best.

Taking the above into account, the refusal by Honie’s attorney to seek withdrawal

of his jury sentencing waiver, despite Honie’s express request, clearly “fell below an

objective standard of reasonableness.” Strickland, 466 U.S. at 688. Honie therefore has

shown deficient performance under Strickland and Hill.

Turning to the prejudice inquiry under Hill, we ask whether the petitioner has

shown a reasonable probability that “counsel’s constitutionally ineffective performance

affected the outcome of the . . . process” which resulted in the waiver of a fundamental

right. Hill, 474 U.S. at 59. In other words, has Honie demonstrated a reasonable

probability that, but for his counsel’s deficient performance, he would have exercised his

right to capital sentencing by a jury? Given that Honie claims his attorney’s inaction

deprived him of a jury right he previously waived,8 Honie must show a reasonable

8 I assume for the sake of argument in this section that Honie’s jury sentencing waiver was in fact voluntary, knowing, and intelligent. See Adams v. U.S. ex rel. McCann, 317 U.S. 269, 276-77 (1942) (stating such a requirement for jury trial waivers).

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probability that (1) he would have petitioned to withdraw the waiver, and (2) the court

would have assented. See Lafler, 566 U.S. at 163-64 (requiring the petitioner show that,

but for counsel’s ineffectiveness, his erroneously rejected plea would have been

presented to and accepted by the court). Honie has met this burden.

In assessing a claim of prejudice under Hill, we consider “all of the factual

circumstances” to determine whether a criminal defendant would have in fact chosen to

exercise a fundamental right but for counsel’s errors. Heard v. Addison, 728 F.3d 1170,

1183 (10th Cir. 2013) (quotation omitted). This includes, as an initial matter, asking

whether the exercise of that right was objectively “rational under the circumstances.” Id.

at 1184 (quoting Padilla v. Kentucky, 599 U.S. 356, 372 (2010)). A “mere allegation”

that a defendant would have exercised a fundamental right is insufficient to show

prejudice under Hill. Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001).

However, a court will not “blind [itself] to the individual defendant’s statements and

conduct” if the exercise of that right would have been objectively rational. Heard, 728

F.3d at 1184.

At the post-conviction stage, the federal district court determined that Honie could

not show a reasonable probability under Hill that he would have withdrawn his waiver.

See Honie v. Crowther, 2019 WL 2450930, at *19 (D. Utah June 12, 2019). In doing so,

the court effectively concluded it would be irrational for Honie to seek withdrawal of his

waiver because his waiver was knowing and intelligent—meaning he had a sufficient

understanding of the difference between judge and jury sentencing. I cannot agree.

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As an initial matter, and as the district court noted, the fact that a waiver of a right

is knowing and intelligent does not imply that a defendant knows every detail about that

right. See Honie, at *16 (citing United States v. Ruis, 536 U.S. 622, 629-30 (2002)). A

waiver of a constitutional right may “satisf[y] the constitutional minimum” even if a

defendant “lack[s] a full and complete appreciation of all of the consequences flowing

from [a] waiver.” Patterson v. Illinois, 487 U.S. 285, 294 (1988) (quotation omitted).

Even if Honie’s initial waiver of his jury sentencing right was knowing and intelligent,

this does not render irrational his decision to seek to withdrawal based on an enhanced

understanding of this right.

Moreover, Honie’s briefing and the record offer credible reasons to believe he did

not understand all aspects of his jury sentencing right at the time it was waived. Honie

claims he did not know that he would have an opportunity to participate in selecting the

jury, that the jury’s role at sentencing would be to weigh aggravating and mitigating

factors, or that the state would need to convince all twelve jurors beyond a reasonable

doubt that the totality of the aggravating factors justified imposing the death penalty.

These assertions are not contradicted by Honie’s waiver or his in-court colloquy. If

anything, confusion about the burden of proof was likely exacerbated by the trial judge’s

statement implying that it would be the defense’s task to “convince” jurors that the death

penalty was not warranted.9 But Utah law places the burden on the prosecution to

9 Specifically, the trial judge stated during Honie’s colloquy:

“[D]o you understand that to not receive the death penalty you would have to have—I don’t know quite how to put this in layman’s terms and still be 23 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 72

“persuad[e] the sentencer beyond a reasonable doubt” that the death penalty is justified.

State v. Lafferty, 749 P.2d 1239, 1260 (Utah 1988). In short, it is hardly a stretch that,

after speaking with a jailhouse lawyer, Honie gained a better understanding of the

advantages of jury sentencing. I therefore conclude that Honie’s decision to withdraw his

waiver was rational. See Heard, 728 F.3d at 1184. Having surpassed this “objective

floor,” Honie’s sworn affidavit establishes a reasonable probability that he would have

sought withdrawal of the waiver but for counsel’s unreasonable refusal to do so. Id.

Finally, had Honie’s counsel petitioned the court for withdrawal of the waiver, the

record indicates a reasonable probability that the trial court would have granted the

request. As noted above, both the prosecutor and the judge had expressed a desire to

defer to Honie’s choice of sentencer, see supra at 20-21, and Honie’s request would have

been timely.

I would hold, therefore, that Honie has shown a reasonable likelihood that, but for

his attorney’s ineffectiveness, (1) the request to withdraw the waiver would have been

filed, and (2) the court would have granted the request. As stated above, the Utah

Supreme Court assumed as true Honie’s claim that he asked counsel to withdraw his

accurate legally—but with a judge, there is just one person you would have to convince. There is reasonable doubt with 12 jurors, you got 12 chances to convince somebody there is a reasonable doubt there.” (Emphasis added.)

By contrast, Honie’s affidavit stated that a jailhouse lawyer informed him that he only needed one juror to “hold out” to avoid the death penalty. This is consistent with the notion that, after the waiver, Honie gained a better understanding of the benefits of jury sentencing—including that it would be the state’s burden to convince all twelve jurors that the death penalty was justified.

24 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 73

waiver, and in utilizing what essentially amounts to harmless error review, the Utah

Supreme Court implicitly assumed grant of the motion to withdraw the waiver. Because

Honie was denied his Sixth Amendment right to effective assistance of counsel, he is

entitled to habeas relief. In this case, the proper remedy is to remand for a new state

capital sentencing proceeding by a jury. See United States v. Morrison, 449 U.S. 361,

364 (1981) (stating that Sixth Amendment remedies should be “tailored to the injury

suffered from the constitutional violation”); see also Ring, 536 U.S. at 609 (determining

right to trial by jury guaranteed by the Sixth Amendment was violated and “remand[ing]

for further proceedings”).

IV

By ignoring Hill, Flores-Ortega, and Lafler, the Utah Supreme Court’s decision

defied governing Supreme Court caselaw and forced upon Honie an impossible, purely

outcome-based prejudice standard incompatible with precedent and logic alike. Hill and

its progeny clearly establish that when an attorney’s deficient performance deprives a

criminal defendant of a fundamental right that only the defendant personally can waive,

the proper prejudice standard is whether, but for the attorney’s errors, the defendant

would have exercised that right. The right that Utah reserved to Honie in this case—to

choose the forum which will decide whether he should be sentenced to death—was

undoubtedly fundamental. Therefore, the Utah court’s failure to apply the prejudice

standard clarified by Hill and its progeny was “contrary to . . . clearly established Federal

law,” § 2254(d)(1), and AEDPA does not preclude our ability to grant relief.

25 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 74

On de novo review, I would hold that Honie has established a reasonable

probability that, but for his attorney’s deficient performance in failing to withdraw his

waiver, he would have exercised his statutory right to have a jury decide his capital

sentence. I would therefore reverse the district court, grant a writ of habeas corpus, and

remand for a new sentencing proceeding in state court before a jury of his peers.