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Honie v. Crowther

United States District Court, D. Utah, Central Division

June 12, 2019

TABERON DAVE HONIE, Petitioner,
v.
SCOTT CROWTHER, Warden, Utah State Prison, Respondent.

          MEMORANDUM DECISION AND ORDER

          Julie Robinson United States District Judge.

         Petitioner Taberon Dave Honie is in the custody of the Utah Department of Corrections (“UDOC”), pursuant to a sentence of death for his 1999 conviction for the aggravated murder of Claudia Benn. He filed this Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and the Local Rules for the United States District Court for the District of Utah, challenging his conviction and death sentence as being in violation of his rights under the United States Constitution. Mr. Honie submits that the State of Utah has violated and arbitrarily refused to correct violations of his constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, thereby resulting in his unconstitutional conviction and sentence of death. This court, for the reasons set forth below, concludes that Honie has failed to make a substantial showing of a denial of a constitutional right with regards to the claims in his Amended Petition.

         I. FACTUAL HISTORY

         On July 9, 1998, Honie broke into Claudia Benn's home and brutally murdered her. Prior to the murder, Honie telephoned the victim's daughter, Carol Pikyavit, at 8:00 p.m., asking her to come and see him. Carol refused because she needed to go to work, so Honie became upset and threatened to kill her mother and nieces. Honie telephoned twice more before Carol and her sister left to go to work at 10:30 p.m., leaving Carol's daughter and the sister's two children with Claudia. TR ROA 607:239-43, 258.[1]

         Around 11:20 p.m., Rick Sweeney, a cab driver, picked up Honie. The driver could tell that Honie was “really drunk, ” but Honie was still able to give him directions to Claudia's neighborhood. TR ROA 607:267-69.

         At approximately 12:20 a.m. several police officers responded to a 911 call from a neighbor and arrived at the victim's home. The officers noticed that the sliding glass door had been broken, allowing entry into the home. The officers ordered the occupants of the house to exit, and they discovered Honie leaving the home through the garage. TR ROA 607:288-92, 316-22.

         An officer ordered Honie to put his hands up, and when he complied, the officer noticed that his arms-from fingertips to elbows-had blood on them. The officer asked him about the blood, and Honie replied, “I stabbed her. I killed her with a knife.” TR ROA 607:293, 304, 321. The officer said he asked about the blood because he was concerned about Honie's safety. He thought Honie may have been cut on the glass from the broken door. He did not see a knife. And when Honie said, “I stabbed her. I killed her with a knife, ” the officer “didn't know who” the “her” was and did not know “what we had.” TR ROA 607:319-22.

         After arresting Honie, the officers inspected the victim's home. Inside, they discovered the victim's partially nude body lying face down on the living room floor. Officers observed a rock on the living room floor and saw a large blood-stained butcher knife by Claudia's body. TR ROA 607:294, 299, 314.

         Assistant Medical Examiner Maureen Frikke, M.D., did the autopsy. She identified knife wounds that began under Claudia's left ear and went all the way across her neck to her right ear. She observed at least four start marks under the left ear that merged under the right “into this big, huge, deep cut.” TR ROA 606:441. The wounds penetrated to the backbone, cutting everything between; skin, fat, muscle, and organs. Claudia's larynx had two, separate, horizontal cut marks. Her esophagus was severed. The carotid arteries and jugular veins were sliced. TR ROA 606:440-42.

         Dr. Frikke concluded that the neck wounds were caused by something linear with a sharp edge and with enough strength and substance to cut through all the tissue, including the voice box bones, and with enough rigidity to make three cuts in the back bone behind the voice box and esophagus. TR ROA 608:442. Dr. Frikke also observed multiple blunt force injuries on Claudia's head and face, and a bite mark on her left forearm. TR ROA 608:445-49. Dr. Frikke also detailed numerous stabbing and cutting wounds to Claudia's lower body and genitals.

         After his arrest, Honie was taken to the Iron County Jail where Officer Lynn Davis interviewed and photographed him. Officer Davis interrogated Honie three separate times on the morning following the murder. Honie expressed remorse for killing Claudia, stating repeatedly that she was not meant to die.

         II. PROCEDURAL HISTORY

         The State charged Honie with aggravated murder. TR ROA 597:59-60. Prior to trial, the State offered to stipulate to the inadmissibility at trial of three statements that Honie made while he was in custody. TR ROA 598:7. Honie's counsel, Stephen McCaughey, stated that he intended to admit at least two of the statements to present a more accurate account of what happened the night of the murder and to show evidence of Honie's remorse. He moved to suppress the statements, however, and asked for a ruling on their admissibility to create a record that he was aware of the issue. TR ROA 598:6. The trial court held a hearing and denied the motion to suppress.

         Also, in Mr. McCaughey's opening statement, he admitted, “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.” He admitted that Honie murdered Claudia during a burglary or an aggravated burglary. McCaughey stated that Honie contested some of the aggravators, that the State had the burden of proving those beyond a reasonable doubt, and that they would be relevant to Honie's penalty, which the judge would decide. TR ROA 607:233-34.

         The jury convicted Honie of aggravated murder. PL ROA IV:517. Honie waived a sentencing jury. At the penalty phase, the State relied on the circumstances of the crime; Honie's criminal history, primarily a prior violent assault on Carol; evidence of how the murder had affected the granddaughters who were in Claudia's home that night; and evidence of how Claudia's loss affected her community. TR ROA 605; 606.

         Honie presented evidence about his family and personal background. He presented evidence of counseling and attempts to curb his substance abuse, and of an attempted rape by John Boone, a trusted male figure in Honie's life who was later convicted of sexually abusing more than 140 boys. Honie also presented extensive evidence from Nancy Cohn, a credentialed psychologist with forensic training. Among other things, Dr. Cohn testified that Honie's average intelligence and the absence of brain damage meant he presented a low risk for future violence. She also testified that Honie's violence coincided with intoxication, and that he would not have access to liquor in prison. Id.

         The trial court sentenced him to death. PL ROA IV:543-52, 556-57. The Utah Supreme Court affirmed Honie's conviction and death sentence. State v. Honie (Honie I), 57 P.3d 977 (Utah 2002), cert denied 537 U.S. 863 (2002).

         Honie sought state post-conviction relief. He filed an amended petition in 2003. PCR 19-92.[2] The state district court granted the State's summary judgment on most of the petition four years later. PCR 965-1070. After discovery on the remaining claims, the State again moved for summary judgment on the outstanding claims. PCR 1266-1362. In 2011, the state district court granted summary judgment in full and denied Honie post-conviction relief. PCR 3315-48. Honie appealed that ruling. PCR 3349-51; Docket No. 20110620-SC.

         While that appeal was pending, Honie filed a motion to set aside the judgment under Rule 60(b), Utah Rules of Civil Procedure. PCR 3320-3556. After full briefing, the district court denied the motion. ECF No. 70-2, ex. B. Honie appealed that ruling as well. Docket No. 20120220-SC. The Utah Supreme Court consolidated both appeals, and on May 30, 2014, the court affirmed. Honie v. State (Honie II), 342 P.3d 182 (Utah 2014).

         Honie filed his petition for federal habeas relief on May 18, 2015. ECF No. 47. He raised 14 claims for relief. Id. Concurrent with the petition, Honie filed a motion to expand the record with 32 exhibits not considered by the State court. ECF No. 48, ex. A-FF. Respondent opposed both the petition and the motion. ECF No. 70 and 72. Honie later filed a second motion to expand the record with seven additional exhibits, which Respondent opposed. ECF No. 75, ex. GG-LL; ECF No. 87.

         After briefing on the petition and expansion motions concluded, this court denied without prejudice Honie's record-expansion motions. ECF No. 105. This court also ruled on the procedural status of the claims in Honie's petition, determining that only claims 1, 2, 3, 4, 5, 6, 7, and 12 were exhausted in State court. ECF No. 103 at 1-2.

         Honie next moved for a stay and abeyance under the procedure approved in Rhines v. Weber, 544 U.S. 269 (2005), so that he could return to state court to exhaust claims 8, 9, and 11. ECF No. 107. This court denied the Rhines motion, concluding that claims 8, 9, and 11 were not potentially meritorious. ECF No. 120 at 1, 10-16. Honie then amended his petition, formally withdrawing claims 8, 9, 10, 11, 13, and 14 and adding additional factual allegations and argument to support his remaining claims. ECF No. 121.

         III. LEGAL FRAMEWORK

         A. Standard of Review

         This court has determined that claims 1, 2, 3, 4, 5, 6, 7, and 12 were denied on the merits by the Utah Supreme Court and are thus exhausted. These claims are 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 may only be granted if the State court's decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” or “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). “Under 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).

         “Under 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, 552 U.S. 120, 126 (2008) (per curiam) (“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) (alteration in the original))).

         In order to prevail on any of his claims, Honie must show that no fairminded jurist would agree that the Utah courts correctly resolved the federal issue. See Harrington v. Richter, 562 U.S. 86, 102 (2011). Furthermore, the Supreme Court has noted that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 101. The standard is intentionally “difficult to meet” and “stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings.” Id. at 102.

         IV. ANALYSIS

         FIRST CLAIM FOR RELIEF

         TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CONDUCT A REASONABLE INVESTIGATION INTO A VIABLE TRIAL DEFENSE OF VOLUNTARY INTOXICATION PRIOR TO CONCEDING HONIE'S GUILT TO AGGRAVATED MURDER

         Honie asserts that trial counsel was ineffective for deciding to concede Honie's guilt early in the case, prior to investigating a viable defense of voluntary intoxication under Utah law, and for failing to consult with Honie about his decision to proceed to trial on a concession-of-guilt theory. Honie argues that he was prejudiced because he had a viable defense of voluntary intoxication under section 76-2-306 of the Utah Code that should have been presented at trial because it could have negated the existence of the mental state necessary to be convicted of aggravated murder.

         A. Exhaustion

         Honie raised this claim during his state post-conviction proceedings to the Fifth Judicial District Court and to the Utah Supreme Court. PCR ROA 64-66, 724-726, 733-743, 766-771; Opening Brief of Appellant, at 22-26, 45-50, Oct. 1, 2012. The Utah Supreme Court denied the claim on the merits. Honie II, 342 P.3d at 195-97. This court found that this claim was exhausted and properly before this court. ECF No. 103.

         B. “Clearly established” rule of law

         Once the court determines that the state court adjudicated the claim on its merits, the next step under § 2254(d) is to decide whether the decision was based upon “clearly established Federal law.” If it was not, habeas relief is foreclosed. Without clearly established federal law, as determined by the United States Supreme Court, the habeas court need not even consider whether the state court decision was “contrary to” or “involved an unreasonable application of” such law. Honie's first claim for relief was based on clearly established federal law. See Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the United States Supreme Court squarely addressed what constitutes ineffective assistance of counsel. It was the law at the time the Utah Supreme Court adjudicated Honie's case on the merits.

         Honie claimed in the state courts that his trial counsel overlooked a viable voluntary intoxication defense. To succeed on his claim under Strickland, Honie had to prove that counsel's representation was both deficient and prejudicial. See Id. at 687. In order to prove that it was deficient, Honie had to overcome a “strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.” Id. at 689. He had to prove that specific acts or omissions fell below an objective standard of reasonableness. Id. at 687-88, 690. Furthermore, he had to meet that burden based on the practice standards in Utah at the time of his trial and on the facts and law available to his trial counsel. Id. at 689 (explaining that courts must evaluate counsel's conduct from counsel's perspective at the time). Finally, to prove prejudice, Honie had to show “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 confidence in the outcome.” Id. at 694.

         The Utah Supreme Court concluded that Honie did not meet that burden on the voluntary intoxication defense. To get relief in this court, he must show that no fairminded jurist would agree. See Harrington v. Richter, 562 U.S. 86, 101 (2011). The Supreme Court stated that “[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential,' and when the two apply in tandem, review is ‘doubly' so.” Harrington, 562 U.S. at 105 (citations omitted). Further, “[t]he Strickland standard is a general one, so the range of reasonable applications is substantial.” Id. “Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, 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.” Id. The court finds that the Utah Supreme Court decision was based upon clearly established Federal law.

         C. “Contrary to” clearly established Supreme Court precedent

         The next step under § 2254(d) is to determine whether the state court's adjudication of the claim was “contrary to” the clearly established Supreme Court precedent, which in Honie's case it clearly was not. The Supreme Court has held that “a run-of-the-mill state-court decision applying the correct legal rule from our cases to the facts of a prisoner's case would not fit comfortably within § 2254(d)(1)'s ‘contrary to' clause.” Williams v. Taylor, 529 U.S. 362, 406 (2000). The state court decision on Honie's first claim was precisely that, “a state-court decision on a prisoner's ineffective-assistance claim [that] correctly identifies Strickland as the controlling legal authority and, applying that framework, rejects the prisoner's claim.” See Id. Because the state court's ruling on this claim does not fit within the “contrary to” clause, the court will review it under the “unreasonable application” clause of § 2254(d)(1).

         D. “Objectively unreasonable” application of Supreme Court precedent

         This court may grant a writ of habeas corpus only if the state-court decision “involved an “unreasonable application” of “clearly established Federal law, as determined by the Supreme Court of the United States.” § 2254(d)(1). A decision may be incorrect or even clearly erroneous, without being unreasonable. If fairminded jurists could disagree on whether the state court's decision was correct, the decision is not unreasonable. Harrington, 562 U.S. at 102. The Court in Harrington stated:

If this standard is difficult to meet, that is because it was meant to be. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Id. at 102-03.

         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.

         The state court held that to prevail on a voluntary intoxication defense, Honie would have had to show that his state of intoxication deprived him of the capacity to form the mental state necessary for aggravated murder. Honie II, 342 P.3d at 195. Under Utah law, “[v]oluntary intoxication shall not be a defense to a criminal charge unless such intoxication negates the existence of the mental state which is an element of the offense.” Utah Code Ann. § 76-2-306(1). Thus, trial counsel would have had to produce “evidence showing that Mr. Honie was so intoxicated that he neither intended to kill nor knew he was killing a person at the time of the murder.” Honie II, 342 P.3d at 196, see Utah Code Ann. § 76-5-202 (stating that aggravated murder is committed “if the actor intentionally or knowingly causes the death of another”).

         Honie argues that there was significant evidence of his level of intoxication at the time of the crime and during his custodial interrogation that was readily available to trial counsel. Given the amount of strong evidence that trial counsel had, Honie asserts that based on Strickland, trial counsel had an obligation to investigate voluntary intoxication as a possible defense at trial before deciding on a concession theory. See Strickland, 466 U.S. at 690-91.

         The Utah Supreme Court held that Honie did not establish that trial counsel's performance was objectively unreasonable and affirmed the postconviction court's grant of summary judgment on this issue. Honie II, 342 P.3d at 195. The court discussed in detail all the evidence that would have alerted counsel that Honie had been drinking when he committed the murder. But the court then noted that evidence of intoxication is not enough:

Although this evidence may serve to establish that Mr. Honie had been drinking at the time he committed the murder, Mr. Honie has not provided any evidence showing that his “intoxication at the time of the offense prevented him from understanding that his actions were causing the death of another.” Evidence of intoxication, be it witness testimony or a numerical measure of the defendant's actual blood alcohol content, is not sufficient to establish a voluntary intoxication defense without actual evidence of the defendant's mental state. Thus, even though Mr. Honie had consumed both alcohol and marijuana prior to committing the murder, “there is no evidence [showing that] he was so intoxicated at the time of the crime that he was unable to form the specific intent necessary to prove the crime of [aggravated murder].”

Honie II, 342 P.3d at 196-97 (citation omitted).

         The court noted that Honie had presented no evidence that he was so intoxicated that he was unable to form the requisite intent for aggravated murder. In fact, the evidence suggested the opposite. Id. at 197. Before the police even knew that there was a stabbing victim, Honie told officers that, “I stabbed her. I killed her with a knife.” Id. The court agreed with the postconviction court that “this statement ‘clearly show[ed] that [Honie] understood he had engaged in lethal conduct upon a human being.'” Id. Although at first Honie claimed that he had blacked out during the murder, he eventually admitted to the defense team expert that he wished he had blacked out so that he would not remember what he had done. Id. The state court found this to be evidence that he was not so intoxicated that he did not know he was killing a human. Id. Although the taxi driver, Mr. Sweeney, told police that Honie was intoxicated, he also testified that Honie was able to give him directions to the victim's neighborhood. Id. Honie also responded to and obeyed officers' commands at the scene. Id. Officer Davis testified that during his first interview with Honie he could tell that he had been drinking, but that “it was clear that he was fully aware of his situation. Moreover, the defendant's physical appearance and actions did not indicate that his mental state was out of the ordinary.” Id. Finally, Honie threatened to kill the victim only hours before he killed her. Id. According to the state court, this threat showed that “Mr. Honie not only had the capacity to form an intent to murder the victim, but that he in fact acted on that intent.” Id.

         The court found that all this evidence demonstrated that Honie had the ability to form the necessary mens rea for trial counsel to reasonably conclude that a voluntary intoxication defense was unwarranted. Id. The court emphasized that Honie had not pointed to any evidence that he was so intoxicated that he was unable to form that intent. Id. Honie still has not proffered any evidence that he did not know that he was killing a person. Without that evidence, he cannot overcome the strong presumption that trial counsel properly ruled out a voluntary intoxication defense.

         Under Strickland's deferential standard and its “strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance” (Strickland, at 689), Honie has not shown “beyond any possibility for fairminded disagreement” that trial counsel were deficient when they omitted a voluntary intoxication defense or that the omission undermines confidence in the outcome. Honie has failed to establish that the Utah Supreme Court contradicted or unreasonably applied United States Supreme Court precedent in denying this claim. Therefore, the first claim for relief is denied.

         SECOND CLAIM FOR RELIEF

         TRIAL COUNSEL WAS INEFFECTIVE FOR INTRODUCING HONIE'S INCULPATORY STATEMENTS AT TRIAL DESPITE ACKNOWLEDGING THEY WERE INVOLUNTARILY GIVEN, AND DESPITE THE STATE'S WILLINGNESS TO STIPULATE TO THEIR INADMISSIBILITY

         Honie asserts that trial counsel was ineffective for introducing at trial his custodial statements, without first investigating the facts and circumstances of the crime, arrest and custodial interrogation, and even though the state agreed to stipulate to their inadmissibility at trial. TR ROA 598:7. The state, on the other hand, argues that trial counsel believed the statements exhibited Honie's remorse and that counsel made a legitimate strategic decision to introduce them.

         A. Exhaustion

         Honie presented this claim during his post-conviction proceedings before the Fifth Judicial District Court and the Utah Supreme Court. PCR ROA 66-68, 724-733; Opening Brief of Appellant, 10/01/12, at 8-17, 50-56; Reply Brief of Appellant 05/16/13, at 11-20. The Utah Supreme Court denied this claim on the merits. Honie, 342 P.3d at 198-99. This court found that Claim Two was exhausted and properly before this court. ECF No. 103.

         B. “Clearly established” rule of law

         The Utah Supreme Court based its ruling on this claim on Strickland, noting that Honie had not demonstrated “that counsel's representation fell below an objective standard of reasonableness.” Honie II, 342 P.3d at 195 (quoting Strickland, 466 U.S. at 687-88). The Utah Supreme Court reiterated Strickland's command that “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Honie II, 342 P.3d at 195 (quoting Strickland, 466 U.S. at 687-88). As stated above, Strickland is clearly established law.

         C. “Objectively unreasonable” application of Supreme Court precedent

         Honie argues that the state court's denial of this claim constituted an “unreasonable application of clearly-established federal law.” § 2254(d). He argues that before deciding to introduce his statements, trial counsel should have accepted the state's offer to stipulate to the inadmissibility of his custodial statements and should have investigated the facts and circumstances of the crime and his arrest (implying, without supporting evidence, that trial counsel did not do so). Honie asserts that trial counsel's performance was deficient and prejudicial because it was only through trial counsel's actions that jurors heard inflammatory and prejudicial details about the crime, through Honie's own statements, which would never have come into evidence at trial but for trial counsel's actions. The court finds Honie's arguments unpersuasive.

         Trial counsel Mr. McCaughey made clear from the beginning that he intended to admit at trial two of the three custodial statements in order to (1) present a more accurate account of what happened the night of the murder and (2) provide evidence of Honie's remorse. McCaughey moved to suppress the statements, however, and asked for a ruling on their admissibility to create a record that he was aware of the issue. TR ROA 598:6. He informed the court, “So I am sort of doing this for the record, so the record's clear that we are aware, that is, there may be some Miranda violations in this case. And I want the record to reflect that we are pointing those out.” Id. In response to trial counsel's position, the state prosecutor stated:

This is a capital case . . . [and] the state will concede if counsel feels that in the best interest of his client, the accused, that these are statements that should be suppressed[, ] [t]he state does not want to overreach or push or anything that may be on the edge of denying the defendant his fair day in court or violating his constitutional rights. So I will concede to strike, omit, not use and not refer to the three statements of Officer Davis in any of the proceedings if that's the request of the defendant.

Id. at 7. Trial counsel refused the prosecutor's offer to stipulate to the inadmissibility of the statements and reiterated that the only reason he was challenging the use of the statements at trial was because “I don't want two years down the road somebody coming back saying, hey, you should have moved to suppress those statements, because there was no Miranda given.” Id. at 11.

         The court held a hearing on the motion to suppress, denying it on the merits. Id. at 12. The court ruled that Detective Davis properly advised Honie of his Miranda rights before taking the first statement, and that Honie validly waived them. The court also found that under relevant legal considerations, Davis was not required to re-advise Honie before the second and third interviews. The court relied on Davis's unopposed testimony that Honie appeared to understand what was going on and concluded that his intoxication did not invalidate either his statements or the waiver of his rights. Honie argues that he was too intoxicated to voluntarily confess. But his intoxication would have made his statements involuntary only if Davis exploited Honie's intoxication to extract his statements. The trial court credited Davis's testimony that he did not do so. The court denied the motion to suppress, and counsel introduced the statements during trial.

         The Utah Supreme Court reiterated that under Strickland, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” 466 U.S. at 688. In addition, the court noted that, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id. at 690. The court cited Ayala v. Hatch, 530 Fed.Appx. 697 (10th Cir. 2013); Gardiner v. Ozmint, 511 F.3d 420 (4th Cir. 2007); and United States v. Fulks, 683 F.3d 512 (4th Cir. 2012), and held that trial counsel's strategic choice to admit a defendant's inculpatory statements may be reasonable if it furthers the defendant's interests. See Honie, 342 P.3d at 198-199. In holding that trial counsel's decision was not objectively unreasonable, the court stated the following:

Like the defense counsel in Fulks, Mr. Honie's trial counsel was dealt a similarly “unpalatable hand.” As we have discussed, Mr. Honie's trial counsel was presented with a client who was clearly guilty of committing a heinous crime. Here, trial counsel adopted a mitigation strategy, attempting to highlight Mr. Honie's feelings of remorse through the admission of statements Mr. Honie made to police. In addition, unlike trial counsel in Gardner, Mr. Honie's trial counsel not only had a specific strategic purpose for admitting these statements, but counsel also used them to further his client's interest by attempting to present mitigating evidence for both the judge and jury to consider.

Honie II, 342 P.3d at 199. Honie has not shown that no fairminded jurist would agree that the Utah courts correctly resolved this issue. Nor has he overcome the double deference owed to trial counsel's decision to admit the statements.

         Honie repeatedly asserts that trial counsel decided to concede guilt and introduce his client's inculpatory statements at trial without reviewing the discovery or conducting the necessary investigation required of reasonable counsel. However, he cites no record evidence in support of this assertion. He presents no evidence about what investigation trial counsel did or when, or why trial counsel made the strategic decisions that they did. Honie argues that trial counsel could have called witnesses to testify that he was extremely intoxicated. He does not show, however, that their testimony would have refuted the arresting officer's testimony that Honie appeared responsive at the scene and able to follow his directions, which, in his experience, intoxicated persons usually cannot do. Nor has he shown that the testimony of these witnesses would have refuted ...


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