United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
Benson United States District Judge.
Ronald Watson Lafferty, currently confined in the Utah State
Prison in Draper, Utah, filed this federal habeas corpus
application pursuant to 28 U.S.C. § 2254 to vacate his
convictions and sentences, including his sentence of death,
as being in violation of his rights under the United States
(“the State”) has filed a request to submit the
petition for final disposition, stating that the matter is
fully ripe for final adjudication. In response to the
State's request to submit, Lafferty notified the court
that he is withdrawing those claims from his petition that
the court has ruled are unexhausted and procedurally
defaulted, in order to avoid the dismissal of his habeas
petition as a mixed petition. He withdrew the following
claims: 3, 4, 5, 7, 8 (the claims addressing attorney Steve
Killpack), 10 (bases 2 and 4-14), 11 (all aspects of the
claim except those related to the ABA Guidelines and funding
and time limitation), 26, 29, and 33. See Doc. No.
407. He then requested that the court consider the merits of
his remaining exhausted claims. Having done so, the court
hereby denies habeas relief.
following facts are summarized from the opinion of the
Supreme Court of Utah. See State v. Lafferty, 20
P.3d 342, 351-55 (Utah 2001). On the morning of July 24,
1984, four men, the defendant Ron Lafferty
(“Lafferty”), his brother Dan, Charles
“Chip” Carnes, and Ricky Knapp drove to
Lafferty's sister-in-law Brenda's home in American
Fork, Utah. The Lafferty brothers forcibly entered the home,
severely beat Brenda, strangled her with a vacuum cord, and
slit her throat with a knife. Dan then killed Brenda's
fifteen-month-old infant daughter, Erica Lafferty, by
slitting her throat. The four men next drove to Chloe
Low's home, intending to murder her. After breaking into
her home and determining that no one was there, the men took
numerous items and left. Lafferty then began talking about
driving to Richard Stowe's home to murder him.
Fortunately, the men accidentally missed the turnoff to
Stowe's home and instead headed to Wendover, Nevada, for
the night. Ricky and Chip left the next day for Chip's
brother's house in Cheyenne, Wyoming, where they were
arrested on July 30, 1984; Lafferty and his brother Dan were
arrested in Reno, Nevada, on August 17, 1984.
disturbing and gruesome murders appear to have been triggered
in large part by Lafferty's unorthodox religious views,
which had caused him to gradually disassociate from
society's mainstream during the three years preceding the
murders. Critically, these drastic changes in Lafferty's
beliefs and personality caused his wife Diana to divorce him
early in 1984 and take their six children with her to
Florida. Lafferty in turn blamed the demise of his marriage
on four people: his sister-in-law Brenda, who Lafferty
believed encouraged Diana to leave him; Brenda's daughter
Erica, who he believed would grow up to be just as despicable
as her mother; Diana's friend Chloe Low, who he believed
had also helped encourage Diana's divorce from Lafferty;
and Richard Stowe, the couple's ecclesiastical leader in
the LDS Church who Lafferty believed was responsible for his
excommunication from the LDS Church, and who had counseled
Diana during their divorce proceedings and helped her obtain
financial assistance from the LDS Church.
that spring, Lafferty claimed that he received a revelation
from God ordering that Brenda, Erica, Chloe Low, and Richard
Stowe be removed “in rapid succession” and
“as soon as possible.” Lafferty relayed his
revelation to several other members of his small unorthodox
sect, including his brother Dan. For the next several months,
Lafferty and his brother continued in their belief that the
revelations needed to be fulfilled. On July 24, the brothers
finally and tragically set Lafferty's
“removal” revelation into action.
7, 1985, Lafferty was convicted of two counts of first degree
murder, two counts of aggravated burglary, and two counts of
conspiracy to commit first degree murder, and sentenced to
death on the capital murder charges. The Utah Supreme Court
affirmed. State v. Lafferty, 749 P.2d 1239 (Utah
1988). On federal collateral review, however, the United
States Court of Appeals for the Tenth Circuit vacated the
convictions and sentence, holding that the state trial judge
had applied the wrong legal standard to determine competency.
Lafferty v. Cook, 949 F.2d 1546 (10th Cir. 1991),
cert. denied, 504 U.S. 911 (1992). A second trial
was held in April 1996, at which a second jury convicted
Lafferty of two counts of first degree murder, aggravated
burglary, and conspiracy to commit first degree murder, and
again sentenced him to death. The Utah Supreme Court affirmed
Lafferty's second conviction and sentence on February 23,
2001. State v. Lafferty, 20 P.3d 342 (Utah 2001).
thereafter filed for post-conviction relief. The
post-conviction court entered a final order on November 29,
2005, dismissing Lafferty's petition with prejudice and
denying post-conviction relief. Lafferty appealed the
post-conviction court's decision to the Utah Supreme
Court, which affirmed that Lafferty had failed to raise a
genuine issue for a new trial in his post-conviction
petition. Lafferty v. State, 175 P.3d 530 (Utah
2007). Lafferty now petitions this court pursuant to 28
U.S.C. § 2254, challenging his convictions and
sentences, including his sentence of death, as being in
violation of his rights under the United States Constitution.
Standard of Review
petition is governed by the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), which became effective on
April 24, 1996. Under AEDPA, federal habeas relief on claims
adjudicated on the merits cannot be granted 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” or “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. §
2254(d). First, “[u]nder the ‘contrary to'
clause, a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached
by [the United States Supreme Court] on a question of law or
if the state court decides a case differently than [the
United States Supreme Court] has on a set of materially
indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 412-13 (2000).
“[u]nder the ‘unreasonable application'
clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle
from [the United States Supreme Court's] decisions but
unreasonably applies that principle to the facts of the
prisoner's case.” Id. at 413. “A
federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Id. at
411. The state court can therefore run afoul of either prong
only if the Supreme Court has clearly answered the question
at issue. See Wright v. Van Patten, 128 S.Ct. 743,
747 (2008) (“Because our cases give no clear answer to
the question presented . . . ‘it cannot be said that
the state court “unreasonabl[y] appli[ed] clearly
established Federal law.”'” (quoting
Carey v. Musladin, 549 U.S. 70, 77 (2006))).
Twenty-five claims that the state post-conviction court found
to be procedurally barred, although technically exhausted,
are procedurally defaulted in this court
of Lafferty's state post-conviction claims were held to
be procedurally barred in state court because they could have
been raised on direct appeal. Lafferty v. State, 175
P.3d 530, 540-42 (Utah 2007). Lafferty now combines those
claims in his federal petition as claims 13, 18, 19, 20, 23,
24, 25, 31, and 32. Lafferty asserts that each of these
claims are exhausted and cites to that portion of the Utah
Supreme Court's holding affirming the denial of the
claims as procedurally barred. See Doc. No. 39 at
143 (Claim 13), 164 (Claim 18), 168 (Claim 19), 171 (Claim
20), 184 (Claim 23), 187 (Claim 24), 190 (Claim 25), 240
(Claim 31), 243 (Claim 32) (all citing to pages 14-21 of his
appellate brief which discusses the procedurally barred
claims). These claims are deemed to be technically exhausted
because the state procedural bar prevents Lafferty from
properly exhausting them. “[A] habeas petitioner who
has failed to meet the State's procedural requirements
for presenting his federal claims has deprived the state
courts of an opportunity to address those claims in the first
instance. A habeas petitioner who has defaulted his federal
claims in state court meets the technical requirements for
exhaustion; there are no state remedies any longer
‘available' to him.” Coleman v.
Thompson, 501 U.S. 722, 732 (1991) (citing 28 U.S.C.
even though these claims are deemed exhausted for purposes of
this court's review, they are nevertheless considered to
be procedurally defaulted for purposes of federal habeas
relief. As the Tenth Circuit stated in Thomas v.
Gibson, 218 F.3d 1213(10th Cir. 2000):
[T]he Supreme Court has held that if a petitioner
“failed to exhaust state remedies and the court to
which the petitioner would be required to present his claims
in order to meet the exhaustion requirement would now find
the claims procedurally barred” the claims are
considered exhausted and procedurally defaulted for purposes
of federal habeas relief. Coleman v. Thompson, 501
U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
Id. at 1221. Accordingly, Lafferty has defaulted
these claims by failing to raise them in state court.
Analysis of the remaining constitutional claims that are
exhausted and not procedurally barred
has withdrawn claims 3, 4, 5, 7, part of 8, part of 10, part
of 11, 26, 29, and 33. As stated in the foregoing section,
claims 13, 18, 19, 20, 23, 24, 25, 31, and 32 are
procedurally defaulted and cannot be considered by this
court. The court will now consider the merits of the
remaining claims: 1, 2, 6, part of 8, 9, part of 10, part of
11, 12, 14, 15, 16, 17, 21, 22, 27, 28, 30, 34, and 35.
CLAIM FOR RELIEF
STATE OF UTAH HAD NO JURISDCTION TO RE-PROSECUTE, RE-CONVICT
AND RE-SENTENCE RONALD LAFFERTY TO DEATH. ALL STATE COURT
PROCEEDINGS THAT TOOK PLACE IN RONALD LAFFERTY'S RETRIAL
WHICH RESULTED IN HIS RE-CONVICTION AND RE-SENTENCE TO DEATH
ARE LEGALLY VOID
parties agree that this claim for relief has been exhausted.
See Doc. No. 69, Exhibit K at 5. Lafferty raised
this claim for the first time in a petition for rehearing in
the Utah Supreme Court following the denial of his state
post-conviction petition. The court denied the petition for
rehearing without issuing an additional opinion. See
Doc. No. 69-7, Exhibit F (Order dated 4 January 2008).
was originally tried and convicted of two capital felonies
and sentenced to death in 1985. His conviction and sentence
were affirmed on direct appeal to the Utah Supreme Court. In
1988, Lafferty filed a petition for writ of habeas corpus in
federal district court challenging his two state-court
convictions for capital murder and corresponding death
sentence. See Lafferty v. Cook, 949 F.2d 1546, 1548
(10th Cir. 1992). The district court stayed
execution of the death sentence while it considered the
petition. The district court denied the petition in November,
1989. Lafferty, 949 F.2d at 1548. On January 18,
1990, the court lifted the execution stay and indicated that
any application for a further stay should be addressed by the
Tenth Circuit. Doc. No. 74.
February 12, 1990, the Tenth Circuit issued an order granting
Lafferty's application for a stay. See Doc. No.
69-8, Exhibit G (Order dated 12 February 1990). The order
stated that “[e]xecution of appellant's sentence of
death is stayed pending further order of this court.”
December 9, 1991, the Tenth Circuit granted the writ based on
the trial court's use of an improper standard in finding
Lafferty competent to stand trial, holding: “we grant
the writ, and vacate the conviction and sentence. The state
is of course free to retry Lafferty.”
Lafferty, 949 F.2d at 1556. The following day,
December 10, 1991, the Tenth Circuit entered its Judgment,
This cause came on to be heard on the record on appeal from
the United States District Court for the District of Utah,
and was argued by counsel.
Upon consideration whereof, it is ordered that the petition
is granted and that the judgment and conviction of that court
is vacated. The cause is remanded to the United States
District Court for the District of Utah for further
proceedings in accordance with the opinion of this court.
See Doc. No. 69-9, Exhibit H (Judgment).
26, 1992, the Tenth Circuit sent a copy of its Opinion and
Judgment to the district court, stating that the two
documents “constitute the mandate in the subject case,
” and that “the mandate shall be filed
immediately in the records of the trial court.”
See Doc. No. 69-10, Exhibit I (Letter dated 26 May
1992). On June 1, 1992, the district court filed the Tenth
Circuit's mandate in its records. See Doc. No.
69-11 Exhibit J (Notice of Filing and Docketing of Mandate).
The record in the original federal habeas case does not show
that the district court entered any additional orders
regarding the petition.
1996, the State retried Lafferty. A jury again convicted him
of two counts of capital murder and sentenced him to death.
See Lafferty, 20 P.3d 342, 355 (Utah 2001). In 2001,
the Utah Supreme Court affirmed Lafferty's convictions
and death sentence. Id. at 381. In 2002, Lafferty
filed a state petition for post-conviction relief challenging
his convictions and death sentence. See Lafferty,
175 P.3d at 533. The state post-conviction court denied the
petition and the Utah Supreme Court affirmed. Id. at
argues that because the Tenth Circuit granted his petition
for writ of habeas corpus without conditions, vacated his
conviction and sentence and directed the district court to
hold further proceedings consistent with the granting of the
writ, the district court was required to take action to
effectuate the mandate of the Tenth Circuit. And because the
district court did not hold any hearings or issue any orders
to effectuate the mandate of the Tenth Circuit, and no court
took any action lifting the stay of execution that was issued
by the Tenth Circuit while it considered his case, Lafferty
asserts that “the State of Utah never regained
jurisdiction to proceed with the re-prosecution of
Lafferty.” Doc. No. 39 at 34. Thus, according to
Lafferty, his re-prosecution, re-conviction, and
re-sentencing to death were all void.
must demonstrate that the Utah Supreme Court's denial of
his petition for rehearing on this issue was contrary to or
an unreasonable application of United States Supreme Court
precedent. See 28 U.S.C. § 2254(d)(1). He has
failed to do so. He cites no Supreme Court authority to
support his claim that alleged procedural errors by the
district court following the Tenth Circuit's grant of
habeas relief deprived Utah of jurisdiction to retry him. He
also cites no Supreme Court case holding that a federal
habeas court must transfer jurisdiction of a state criminal
case back to the state courts before the State may retry a
petitioner who has been granted a new trial.
granting Lafferty's petition for writ of habeas corpus,
the Tenth Circuit stated: “Accordingly we grant the
writ, and vacate the conviction and sentence. The state is of
course free to retry Lafferty.” Lafferty, 949
F.2d at 1556. Lafferty argues that this constituted an
unconditional grant of the writ, and that under the terms of
the Tenth Circuit's mandate, and 28 U.S.C. § 2243,
the district court was required “to take action to
effectuate that mandate of the court of appeals.” Doc.
No. 39 at 39. Lafferty continues, “the district court
had a duty to issue an order directing that Lafferty be
released, either unconditionally or conditionally, or to
issue an order directing the state to show cause why such a
release order should not be issued.” Id.
it is true that the district court did not issue an order
remanding the case to the state or purporting to transfer
jurisdiction back to the state, it was not required to do so.
The district court did all that the mandate required, which
was to file the Tenth Circuit's Opinion and Judgment in
the record. The Tenth Circuit's Judgment states,
“it is ordered that the petition is granted and that
the judgment and conviction . . . is vacated.” Doc. No.
69, Exhibit H. The Tenth Circuit's May 26, 1992 letter to
the district court enclosed the Opinion and Judgment and
stated that these two documents “constitute the mandate
in the subject case.” Doc. No. 69, Exhibit I. The
letter also noted that, “[b]y direction of the court,
the mandate shall be filed immediately in the records of the
trial court.” Id. Neither the letter, the
Opinion, nor the Judgment directed the district court to take
any further action beyond filing the mandate. The district
court filed the mandate in its records, and thus did all it
was required to do. See Doc. No. 69, Exhibit J.
argues that because the district court did not issue an Order
giving effect to the Tenth Circuit's mandate, the federal
habeas proceedings were never concluded and the Tenth
Circuit's stay of the proceedings was still in effect at
the time the state re-prosecuted Lafferty, and thus the
subsequent state prosecution was null. This argument has no
merit. As stated above, the district court did all that it
was required to do to give effect to the Tenth Circuit's
mandate when it filed the Tenth Circuit's Opinion and
Judgment, which clearly stated that the writ was granted. The
State made no attempt to enforce the vacated judgment and
sentence. Rather, the State retried Lafferty, as the Tenth
Circuit expressly recognized that it could. See
Lafferty, 949 F.2d at 1556. The stay expired on its own
terms when the court issued its Opinion and Judgment.
has failed to establish that the Utah Supreme Court
contradicted or unreasonably applied United States Supreme
Court precedent in denying his petition for rehearing.
Therefore, the first claim for relief is denied.
CLAIM FOR RELIEF
STATE'S RETRIAL OF LAFFERTY AFTER THE TENTH CIRCUIT COURT
OF APPEALS VACATED HIS CONVICTION AND SENTENCE VIOLATED THE
FEDERAL DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT
State argues that this claim is not exhausted because
Lafferty is now raising the double jeopardy claim on a
“different ground” than he did before the Utah
Supreme Court. This court has previously concluded, however,
that “[b]ased on Lafferty's argument regarding
double jeopardy on direct appeal, as well as the Utah Supreme
Court's resolution of it . . . Lafferty's double
jeopardy claim is exhausted.” Doc. No. 370 at 6. The
court noted that “[Lafferty] urges this court to view
the use of the wrong competency standard not as mere
‘trial error' as the Utah Supreme Court concluded,
but instead as equivalent to ‘insufficient
evidence.' The Utah Supreme Court chose not to find that
equivalency. The issue is now properly before this
appears to argue in his petition that under Burks v.
United States, 437 U.S. 1, 16-18 (1978), the Tenth
Circuit's reversal of his conviction amounted to a
finding of evidentiary insufficiency which is equivalent, for
double jeopardy purposes, to a verdict of acquittal. In
denying Lafferty's double jeopardy claim, the Utah
Supreme Court held:
[W]e have held that “double jeopardy does not generally
bar a second trial when a conviction was successfully vacated
on appeal or by motion for a new trial based on errors in the
first” (citation omitted). Similarly, section 76-1-405
of the Utah Code provides that “[a] subsequent
prosecution for an offense shall not be barred ... [when t]he
former prosecution result[s] in a judgment of guilt [and is]
held invalid in a subsequent proceeding on writ of habeas
corpus....” Utah Code Ann. § 76-1-405 (1995). That
is the case here. The Tenth Circuit vacated the conviction of
the first trial court on the ground that the court had failed
to apply the proper standard in determining competency.
See Lafferty II, 949 F.2d 1546, 1556 (10th Cir.
1991). Retrying a case when a “trial error” has
occurred does not place the defendant in double jeopardy
(citation omitted). Retrial was proper on this ground alone,
regardless of the prosecutorial misconduct, and neither the
State nor defendant should be denied the right to a fair,
error-free determination; “ ‘the double jeopardy
clause may not deny either side that right' ”
Lafferty, 20 P.3d at 380.
argues that jeopardy attaches and bars retrial if a
conviction is reversed because the evidence was legally
insufficient. He claims that for double jeopardy purposes,
reversal on such ground is equivalent to a verdict of
acquittal. See Burks v. U.S., 437 U.S. 1, 16-18.
Lafferty then claims that his conviction was reversed based
on legally insufficient evidence, because his lack of
competency prevented his attorney from presenting evidence
that would have resulted in an acquittal, or at least a
conviction on a lesser offense. This is mere speculation and
is unsubstantiated by the record. The court agrees with the
Utah Supreme Court that the use of the wrong competency
standard was mere trial error and not equivalent to
insufficient evidence. The second claim for relief is denied.
CLAIM FOR RELIEF
PROSECUTOR'S COMMENTS WERE IMPROPER, MISSTATED THE LAW
AND CONSTITUTED PROSECUTORIAL MISCONDUCT, IN VIOLATION OF
LAFFERTY'S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT
court ruled that Claim 6, including the additional examples
of prosecutorial misconduct during closing arguments, is the
same claim that was presented in state court, and is
accordingly exhausted. See Doc. No. 370 at 6-8.
claims that prosecutorial misconduct during the closing
argument of his retrial violated his constitutional rights.
Lafferty objects to (1) prosecutorial references to
“other bad acts” evidence and the implication
that Lafferty was a threat to law enforcement, (2) the use of
“fabricated evidence” to support the testimony of
Charles “Chip” Carnes, and (3) statements that
Lafferty should receive the death penalty for killing an
infant. Lafferty argues that the cumulative effect of the
prosecution's improper comments and acts violated his
constitutional right to a fair trial.
direct appeal, the Utah Supreme Court concluded that the
prosecutor's closing argument did not render
Lafferty's trial unfair in violation of his right to due
process because the prosecutor merely reiterated facts that
the jury had already heard and that were relevant to
determining Lafferty's sentence. Lafferty, 20
P.3d at 369. Lafferty argues that the Utah court was wrong
when it applied the standard of whether “the error is
substantial and prejudicial such that there is a reasonable
likelihood that in [their] absence, there would have been a
more favorable result for the defendant.”
Lafferty, 20 P.3d at 369. He says that the standard
it should have applied is whether the prosecutor's
inappropriate comments “so infected the trial with
unfairness as to make the resulting conviction a denial of
due process.” Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974).
bare comparison does not show that the Utah court
contradicted or unreasonably applied controlling Supreme
Court authority. Lafferty provides no analysis and cites no
case demonstrating that the two standards conflict with each
other. He also fails to recognize that the Utah court held
that the prosecutor made no improper argument.
Lafferty, 20 P.3d at 369. Proper argument
cannot “infect the trial with unfairness.”
See Donnelly, 416 U.S. at 643.
Utah court, like the United States Supreme Court in
Donnelly, looked to the fairness of the trial. The
Utah court opened its analysis by recognizing the issue to be
whether the prosecutor's comments denied Lafferty a fair
trial. Lafferty, 20 P.3d at 369. The court
concluded that the prosecutor's statements were
“merely reiterations of facts in evidence and
inferences drawn from them and would not have changed the
outcome of the trial.” Id.
Darden v. Wainwright, 477 U.S. 168 (1986), the
United States Supreme Court addressed a prosecutorial
misconduct claim involving improper comments by the
prosecutor. The Court noted the following: “[W]e agree
with the reasoning of every court to consider these comments
that they did not deprive petitioner of a fair trial. The
prosecutors' argument did not manipulate or misstate the
evidence, nor did it implicate other specific rights of the
accused such as the right to counsel or the right to remain
silent.” Darden, 477 U.S. at 181-82. The Court
concluded that although the prosecutor's closing comments
“undoubtedly were improper, ” and even if they
were “undesirable or even universally condemned,
” they nevertheless did not warrant reversal.
Id. Similarly, in this case the Utah court
considered the prosecutor's argument, and determined that
it “[did] not rise to the level of prosecutorial
misconduct or warrant a reversal of defendant's
conviction and sentence.” Lafferty, 20 P.3d at
368. Lafferty has not established that the Utah court
contradicted or unreasonably applied any Supreme Court
authority. The sixth claim for relief is denied.
CLAIM FOR RELIEF
WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE
COUNSEL BECAUSE HIS TRIAL AND APPELLATE COUNSEL OPERATED
UNDER AN ACTUAL CONFLICT OF INTEREST
court has ruled that the portion of Claim 8 that deals with
Mr. Killpack's conflict of interest is not exhausted and
is, therefore, procedurally defaulted. Doc. No. 370 at 13.
Lafferty has withdrawn that portion of this claim. Doc. No.
407 at 3-4. The court found, however, that the claim against
Mr. Esplin is exhausted. The Utah Supreme Court found that
there was “no factual support to show” that
Lafferty was harmed by Mr. Esplin's previous
representation of his brother. See Lafferty, 175
P.3d at 544.
claims that he was denied the effective assistance of counsel
at trial and on appeal because his attorney, Michael Esplin,
operated under an actual conflict of interest, thus violating
Lafferty's constitutional rights. Lafferty has the burden
to establish that the Utah Supreme Court contradicted or
unreasonably applied controlling United States Supreme Court
authority in denying his claim. The court finds that he has
not met that burden.
contends that he was denied his Sixth Amendment right to
conflict-free counsel because his attorney at his 1996
re-trial had been appointed as standby counsel for
Lafferty's brother and co-defendant, Dan, at Dan's
1985 trial. Dan was convicted of capital murder and received
two life sentences. Lafferty, 749 P.2d at 1241. Dan
did not appeal.
later convicted Ron Lafferty of capital murder and sentenced
him to death. Id. Mr. Esplin did not represent
Lafferty at trial, but he did represent him on direct appeal,
where his conviction and sentence were affirmed. Id.
at 1239-41. On federal habeas review, the Tenth Circuit
granted Lafferty's petition for habeas relief, and
ordered his conviction and death sentence vacated.
Lafferty v. Cook, 949 F.2d 1546 (10th
Cir. 1991), cert. denied, 504 U.S. 911 (1992). The
State retried Lafferty in 1996, and Mr. Esplin was one of the
attorneys who represented him. Prior to trial, and on the
State's motion, the 1996 trial court inquired into the
possibility that Mr. Esplin's involvement in Dan's
1985 case would create a conflict of interest if Dan were
called to testify in Lafferty's 1996 retrial. The trial
court held two hearings and heard from Mr. Esplin, Lafferty
and Dan on the issue. See generally, R. 4231-27,
5427 (Tr. 19 October 1994), 5428 (Tr. 28 August
Esplin told the 1996 trial court that because Dan insisted on
his Sixth Amendment right to represent himself, Mr. Esplin
served primarily as “advisory” or
“standby” counsel during the 1985 proceedings. R.
5427:5-10. During that time, Dan shared no confidences about
the murder's actual events or any factual matter, and Mr.
Esplin did not ask about them, even during the brief periods
when he was appointed as counsel rather than as advisory
counsel. The trial court acknowledged that Mr. Esplin
adequately explained that he had taken no confidences from
Dan. Id. at 5427:10-13. Mr. Esplin also told the
1996 trial court that after Dan was convicted and sentenced,
his only contact with Dan was his 1996 visit to Dan about
Ron's retrial. He anticipated no involvement on Dan's
behalf before the Board of Pardons and Parole or in federal
habeas proceedings. He stated that after his involvement with
Dan ended, he had represented only Lafferty through his first
direct appeal and first federal habeas proceeding, which
resulted in federal habeas relief for Lafferty. Id.
at 5427:11-15. Mr. Esplin stated that his loyalty was to
Lafferty only, assuring the trial court that his prior
involvement as Dan's advisory counsel during Dan's
trial would not affect a decision whether to call Dan to
testify at either phase of Lafferty's 1996 retrial.
Id. at 5427:13-15.
trial court next questioned Lafferty, who repeatedly stated
that he saw no conflict, but spent most of his time insisting
that he would be in charge of his defense, and that he
accepted counsel only because he needed someone with access
to the court. Id. at 5427:24-35. Dan, who had
independent counsel appointed for the 1996 conflict hearings,
was questioned and under oath agreed to be a witness and to
allow Mr. Esplin to continue to represent Lafferty. He agreed
that he understood that Mr. Esplin's duty would be to
examine and cross-examine him vigorously, including about his
truthfulness, and he consented to that. He also agreed that
he understood that he had the right not to have his former
attorney question him. R. 5428.
the hearings, the 1996 trial court concluded that there was
no actual conflict of interest that would disqualify Mr.
Esplin, and that Dan had consented to Mr. Esplin representing
the guilt phase of Lafferty's 1996 trial, Lafferty's
defense team called Dan to testify. R. 5448:119-242 and R.
5449:5-157. Before they called him to testify, however, the
State had put on considerable independent evidence that
showed that Lafferty masterminded the murders of Brenda and
Erica, insisted that they had to die by having their throats
slashed, beat Brenda, and killed Brenda himself. Doc. No. 69
at 67-70 ...