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Lafferty v. Crowther

United States District Court, D. Utah, Central Division

October 4, 2017

RONALD WATSON LAFFERTY, Petitioner,
v.
SCOTT CROWTHER, Warden, Utah State Prison, Respondent.

          MEMORANDUM DECISION AND ORDER

          Dee Benson United States District Judge.

         Petitioner 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 Constitution.

         Respondent (“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.

         I. FACTUAL BACKGROUND

         The 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.

         These 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.

         Later 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.

         II. PROCEDURAL BACKGROUND

         On May 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).

         Lafferty 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.

         III. ANALYSIS

         A. Standard of Review

         This 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).

         Second, “[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))).

         B. Twenty-five claims that the state post-conviction court found to be procedurally barred, although technically exhausted, are procedurally defaulted in this court

         Twenty-five 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. § 2254(b)).

         However, 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.

         C. Analysis of the remaining constitutional claims that are exhausted and not procedurally barred

         Lafferty 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.

         FIRST CLAIM FOR RELIEF

         THE 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

         1. Exhaustion

         The 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).

         2. The Merits

         Lafferty 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.

         On 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.” Id.

         On 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, which states:

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).

         On May 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.

         In 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 545.

         a. The Writ

         Lafferty 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.

         Lafferty 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.

         In 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.

         While 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.

         b. The Stay

         Lafferty 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.

         Lafferty 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.

         SECOND CLAIM FOR RELIEF

         THE 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

         1. Exhaustion

         The 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 court.” Id.

         2. The Merits

         Lafferty 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' ” (citation omitted).

Lafferty, 20 P.3d at 380.

         Lafferty 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.

         SIXTH CLAIM FOR RELIEF

         THE PROSECUTOR'S COMMENTS WERE IMPROPER, MISSTATED THE LAW AND CONSTITUTED PROSECUTORIAL MISCONDUCT, IN VIOLATION OF LAFFERTY'S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS

         1. Exhaustion

         This 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.

         2. The Merits

         Lafferty 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.

         On 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).

         This 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.

         The 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.

         In 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.

         EIGHTH CLAIM FOR RELIEF

         LAFFERTY WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL BECAUSE HIS TRIAL AND APPELLATE COUNSEL OPERATED UNDER AN ACTUAL CONFLICT OF INTEREST

         1. Exhaustion

         This 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.

         2. The Merits

         Lafferty 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.

         Lafferty 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.

         A jury 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 1995).[1]

         Mr. 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.

         The 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.

         After 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 Lafferty.

         During 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 ...


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