Petition for Writ of Certiorari — John Pinder, Petitioner v. Scott Crowther, Warden

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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JOHN R. PINDER,

Petitioner-Appellant,

v.

SCOTT CROWTHER,

No. 19-4039

(D.C. No. 2:16-CV00189-DN)

(D. Utah)

Respondent-Appellee.

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ORDER DENYING CERTIFICATE

OF APPEALABILITY*

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(Filed Feb. 11, 2020)

Before HARTZ, HOLMES, and MORITZ, Circuit

Judges.

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John R. Pinder, a Utah state prisoner, seeks a certificate of appealability (COA) to challenge the district

court’s denial of four grounds for relief set forth in his

28 U.S.C. § 2254 habeas petition. We deny a COA and

dismiss this matter.

* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It

may be cited, however, for its persuasive value consistent with

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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I.

Background

We take the following factual recitation from the

opinion of the Utah Supreme Court (USC) affirming

the denial of Mr. Pinder’s petition for post-conviction

relief, which, as the USC noted, “is presented in a light

favorable to the prosecution, and consistent with the

judgment of conviction,” Pinder v. State, 367 P.3d 968,

969 n.1 (Utah 2015) (Pinder II):

John Pinder owned a sprawling ostrich

ranch in Duchesne County. He and his ranchhand, Filomeno Ruiz, were accused (and ultimately convicted) of murdering June Flood

and Rex Tanner. Flood and Tanner also

worked on Pinder’s ranch.

According to the evidence at trial, Ruiz

staged a fight with his girlfriend, Mandy Harris, on the day of the alleged murder[1]. The

purpose of the staged fight was to get Harris

away from the ranch. Ruiz called 911 during

this staged altercation. Harris left after the

police showed up. And the 911 call was recorded by the local dispatch.

That evening, Pinder, his girlfriend Barbara DeHart, Ruiz, and Pinder’s employees

Joe Wallen and David Brunyer (along with

Brunyer’s wife) gathered around a campfire to

drink. At some point the conversation turned

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Whether the murders were committed on Saturday, October 24, 1998, or Sunday, October 25, 1998, is at issue in one of the

grounds on which Mr. Pinder seeks a COA.

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to the “shrunken heads” that Pinder and

DeHart had seen at a curiosity shop in Seattle. Eventually Pinder spoke of his hopes to

someday acquire one. Pinder said to Ruiz,

“let’s go get some heads.” Ruiz responded with

a question: “four or two?” Pinder replied,

“two.”

After grabbing a baseball bat, Pinder and

Ruiz drove to the home where Flood and Tanner resided. Pinder violently assaulted Flood

and Tanner, kidnapped them, and then shot

them both with a 10 mm pistol. Pinder and

Ruiz then left the murder scene and later returned with ammonium nitrate and dynamite, packed the bodies with the explosives,

and set them off.

Pinder later got others to help him hide

the remains. Following a day of bulldozing the

blast site, Pinder and Ruiz dropped several

black garbage bags of body parts into a barrel

and set them ablaze. Pinder, DeHart, and Ruiz

then met with the Brunyers for dinner, after

which Pinder and Ruiz returned to the lake to

collect more parts for burning.

Tuesday morning, at Pinder’s behest,

Ruiz and Brunyer went to the Flood home

armed with a bottle of alcohol and some rags

to remove fingerprints and tidy up. After returning, Brunyer complained about the smell

of the Flood residence, to which Pinder

quipped, “That’s because Tanner shit his

pants when I shot him.” Pinder, Ruiz, and

Brunyer then spent the day bulldozing and

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gathering more body parts for disposal. After

coming across Tanner’s wrist watch, Pinder

callously joked that it must have been a

Timex, because “it was still ticking.” Eventually the bulldozer ran out of gas. And when

they went to get more, Brunyer asked Pinder

why he killed Flood and Tanner, to which

Pinder replied, “They were liars, thieves and

maggots, and now they’re vaporized no one

will miss them anyway.” Upon arriving home

that evening, Brunyer’s daughter could see he

was upset. He recounted the gruesome tale to

his daughter. She took notes and then taped

them to the inside of her dresser drawer after

having Brunyer read over and approve them.

By Thursday, October 29th, Pinder and

DeHart had left the state, eventually arriving

in Cataldo, Idaho. That Sunday, DeHart contacted her daughter Melissa Cowles and told

her that over the last couple of days Pinder

“had admitted to killing some people on the

ranch”; that they had been “cleaning up the

evidence”; that she had found “a bag of what

looked like bloody hair and scalp” in Pinder’s

truck, which she then threw away; and that

they had “thrown the murder weapon off a

bridge and into the river.” DeHart had said

they were “like Bonnie and Clyde, always on

the run.” That same day DeHart called her father, Bernie Knapp, and told him “she helped

clean blood and mess out of John Pinder’s

truck,” that “they had some bloody clothing

and items in bags that they had tossed in

dumpsters in little towns on the way up on

their trip,” and that they “either had gotten

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rid of a gun or were in the process of getting

rid of a gun.”

Meanwhile, back at the ranch, an investigation was underway. One of Flood’s friends

reported her missing, and police officers

searched the Flood residence. Police discovered the home in utter disarray, with blood on

the bed sheets and the backrest of a chair in

the living room. They also found a pair of excrement-stained pants in the bathroom. After

leaving the home, the investigating officer

saw and approached Brunyer, who was standing nearby. Brunyer appeared “very agitated,

very nervous, and scared to death,” but

handed the officer the letter his daughter had

written and the bottle of alcohol with which

he had assisted in cleaning up the home.

Pinder and DeHart arrived back in Salt

Lake on November 4th. On that day they decided to appear on KSL News for a television

interview about the murders. Shortly thereafter, Pinder, Ruiz, and DeHart were all arrested. Investigators later searched Pinder’s

ranch and found a gruesome assortment of

the victims’ remains strewn about the area,

stuck in bushes, and hanging from trees. They

also searched Pinder’s truck and found a 10

mm shell casing, one of the victim’s thumbprints on the inside of a window, and some

bloodstains (one identified as Pinder’s, the

other unidentified). Police also determined

that the rear windows had been wiped down

and cleaned, as well as the mid-section of the

door jam.

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Ruiz pled guilty to two counts of murder.

He denied being the shooter, accusing Pinder

instead. DeHart was charged with and later

convicted of obstruction of justice. State v.

DeHart, 2001 UT App 12, 17 P.3d 1171. And

Pinder was charged with two counts of aggravated murder, two counts of aggravated kidnapping, two counts of tampering with

evidence, one count of burglary of a dwelling,

one count of possession of explosives, and two

counts of desecration of a body.

While being held in the Summit County

Jail before his preliminary hearing, Pinder

met an inmate named Newly [sic2] Welch.

Pinder bragged to Welch about killing Tanner

and Flood and blowing up their bodies. He told

Welch that the day of the murders, he and

Ruiz staged a fight with Ruiz’s girlfriend to

get her off of the ranch. Welch then asked

Pinder what it was like to kill someone. And

in response, Pinder put his hand on Welch’s

shoulder and said, “There’s no bigger rush, especially when you know you’re going to get

away with it.” Pinder was convicted on all

counts and sentenced to life with the possibility of parole on the aggravated murder

charges, and to consecutive statutory terms

on the other counts.

Pinder II, 367 P.3d at 969-71 (paragraph numbers,

footnote, brackets, and ellipses omitted).

2

At trial, Mr. Welch spelled his first name “Newley.”

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After his convictions, Mr. Pinder filed a motion for

a new trial. The trial court denied the motion, and the

USC affirmed, see State v. Pinder, 114 P.3d 551 (Utah

2005) (Pinder I). As noted, the USC later affirmed the

denial of Mr. Pinder’s petition for post-conviction relief

(PPCR).

Mr. Pinder then filed a petition for habeas corpus

in federal district court pursuant to 28 U.S.C. § 2254.

The district court denied relief on all seven grounds

and denied a COA. In this court, Mr. Pinder has filed a

Combined Opening Brief and Application for a Certificate of Appealability (COA Application), seeking a

COA on four grounds, some of which the district court

denied for procedural reasons and others the court denied on the merits.

II.

Standard of review

To appeal the denial of a § 2254 petition, a petitioner must first obtain a COA. See 28 U.S.C.

§ 2253(c)(1)(A). To obtain a COA on claims the district

court denied on the merits, a petitioner must make “a

substantial showing of the denial of a constitutional

right,” § 2253(c)(2), such “that reasonable jurists could

debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to

proceed further,” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (internal quotation marks omitted). For claims

the district court denied on a procedural ground without reaching the merits, the petitioner must show “that

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jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and . . . whether the district court was correct in its procedural ruling.” Id. “Each component of

[this] showing is part of a threshold inquiry.” Id. at 485.

Thus, if a petitioner cannot make a showing on the procedural issue, we need not address the constitutional

component. See id. “The COA inquiry . . . is not coextensive with a merits analysis,” Buck v. Davis, 137

S. Ct. 759, 773 (2017), and is limited to “an overview of

the claims in the habeas petition and a general assessment of their merits,” Miller-El v. Cockrell, 537 U.S.

322, 336 (2003).

Because Mr. Pinder filed his § 2254 petition after

the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), it is governed by

AEDPA’s provisions. See Wallace v. Ward, 191 F.3d

1235, 1240 (10th Cir. 1999). Under AEDPA, our consideration of Mr. Pinder’s request for a COA must incorporate “AEDPA’s deferential treatment of state court

decisions.” Dockins v. Hines, 374 F.3d 935, 938 (10th

Cir. 2004). We therefore “look to the District Court’s application of AEDPA to [Mr. Pinder’s] constitutional

claims and ask whether that resolution was debatable

among jurists of reason.” Miller-El, 537 U.S. at 336. To

that end, we must keep in mind that when a state court

has adjudicated the merits of a claim, a federal court

may grant habeas relief only if that state court decision

“was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” 28 U.S.C.

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§ 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding,” § 2254(d)(2). But

AEDPA’s deferential standards of review do not apply

if a “state court employed the wrong legal standard in

deciding the merits of [a] federal issue.” Cargle v.

Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). In that

case, rather than deferring to the state court’s resolution of the issue, a federal court reviews the issue de

novo to determine whether habeas relief is warranted.

Milton v. Miller, 744 F.3d 660, 670-71 (10th Cir. 2014).

III.

Discussion

A. Grounds one and two

Grounds one and two of Mr. Pinder’s § 2254 petition concern due-process claims he advanced in his

PPCR. In ground one, Mr. Pinder claimed the State

used doctored 911 tapes of the calls regarding the fight

between Mr. Ruiz and his girlfriend that changed the

date of the calls from October 24 to October 25, 1998.

The State did not introduce the audio from the tape at

trial, but the log of the 911 calls established a baseline

date of October 25 for the fight and the murders.3 Various witnesses, including Mr. Pinder and his girlfriend,

Ms. DeHart—who had earlier testified in her

3

Mr. Pinder’s record citation for this point shows that his

own trial attorney, not the State, presented the logs when crossexamining Ms. DeHart. See Trial R., R1780 Jury Trial Vol. 13 at

129-31. The state-court records were filed in this court on a compact disc. Our references to those records are to the names of the

folders and files as set forth on that disc.

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obstruction trial that the fight occurred on October

24—then keyed their testimony to that baseline date.

Mr. Pinder claimed the date mattered because he had

an alibi for October 24—he was at home on the ranch

with Ms. DeHart. He presented affidavits from experts

that the 911 recordings were not pristine but, prior to

his trial, had been tampered with and altered by exporting and editing data, which was then recorded

back onto the tape. The experts stopped short of concluding the date of the 911 calls had been changed to

October 25.

In ground two of his § 2254 petition, Mr. Pinder

claimed the State presented false testimony at trial

from Newley Welch that while he and Mr. Pinder were

incarcerated together, Mr. Pinder confessed he had

shot the victims and blew up their bodies. Mr. Pinder

provided the post-trial court an affidavit from a private

investigator who interviewed Mr. Welch in 2002 and

reported that, contrary to his trial testimony, Mr. Welch

stated that “John Pinder did not tell him that Pinder

had shot or beaten Rex Tanner and June Flood.” PostConviction Record (PCR), R269-1 at 39. The investigator also reported that Mr. Welch said “he would not testify in court regarding his admissions that he lied on

the stand during John Pinder’s trial . . . [until] he was

released from probation.” Id. at 38-39.

1. State court rulings

In affirming the denial of post-conviction relief on

these claims, the USC relied solely on procedural

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default, reasoning that the claims could have been but

were not raised “’at trial or on appeal,’ ” as required by

Utah Code Ann. § 78B-9-106(1)(c). Pinder II, 367 P.3d

at 976 (quoting § 78B-9-106(1)(c)). The court rejected

Mr. Pinder’s argument that the statutory term “at

trial” did not include claims that could only have been

brought in a post-trial motion prior to an appeal. Id. at

976-77. The court instead construed the term “at trial”

as “encompass[ing] all claims that could have been

raised in the trial court,” including a post-trial motion.

Id. at 976-77.

The USC next rejected Mr. Pinder’s argument that

he could not have brought these claims at trial or in

his new-trial motion “because they came to light too

late.” Id. at 977. The USC reasoned that Pinder knew

of the grounds for asserting these claims “at the time of

trial, and accordingly [they] could have been brought

then or in his post-trial motion.” Id. at 977 (emphasis

added) (internal quotation marks omitted). “At most,”

the court said, Mr. Pinder had belatedly identified only

“additional evidence supporting [the claims],” which

was “insufficient to avoid the procedural bar.” Id. In a

concluding statement, the court summarized its holding: “Pinder could have asserted his due process claims

[regarding the 911 tapes and Welch’s alleged perjury]

at trial (or on a post-trial motion).” Id. at 980 (emphasis added).

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2. District court ruling

In his § 2254 proceedings, Mr. Pinder argued that

to the extent the USC concluded that § 78B-9106(c)(1)’s term “at trial” extended beyond the actual

trial period, the procedural rule was novel and therefore inadequate to bar presentation of these claims in

his new-trial motion. See Walker v. Martin, 562 U.S.

307, 316 (2011) (“To qualify as an ‘adequate’ procedural

ground, a state rule must be firmly established and

regularly followed.” (internal quotation marks omitted)). In the alternative, Mr. Pinder asked the district

court to excuse the procedural default based on the

cause-and-prejudice and fundamental-miscarriage-ofjustice exceptions.

The district court enforced the procedural default.

The court explained that despite interpreting the term

“at trial” to include post-trial motions, the USC found

that the 911-tape and Welch-perjury claims could have

been raised “during the actual trial.” Aplt. App. at 240.

Accordingly, the district court did not address Mr.

Pinder’s novelty argument.

The district court also declined to excuse the procedural default. The court characterized Mr. Pinder’s

excuse arguments as “hinging on ‘newly discovered evidence,’ so the exception [to procedural default] Pinder

relies on is essentially that of fundamental miscarriage of justice or actual innocence.” Id. The court determined that none of Pinder’s evidence was new

(which is a requirement for a showing of actual innocence, see House v. Bell, 547 U.S. 518, 536-37 (2006)),

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because he merely rehashed all the evidence and alleged civil-rights violations that formed “every claim

that he brought before the Utah Supreme Court and in

this petition, [and] re-argued [them] as grounds for a

finding of actual innocence.” Aplt. App. at 241. The

court did not separately address Pinder’s cause-andprejudice arguments.

3. COA analysis

In his COA Application, Mr. Pinder repeats his

novelty argument but fails to address the district

court’s explanation that the USC’s application of procedural default rested independently on the view that

he could have brought these claims at his actual criminal trial (as opposed to in his new-trial motion). But

reasonable jurists could not debate the district court’s

analysis, and the issue does not deserve encouragement to proceed further. Even if it was novel for the

USC to interpret the statutory term “at trial” as including new-trial motions, the USC also based its procedural-default determination on the non-novel portion

of the statute—that Mr. Pinder could have raised his

claims during the actual criminal trial. The two bases

were independent, and Mr. Pinder has not argued that

the non-novel portion of the statute was inadequate.

Mr. Pinder attempts to overcome his procedural

default of grounds one and two through a showing of

cause and prejudice.4 See Fairchild v. Workman, 579

4

Mr. Pinder does not raise a fundamental-miscarriage-ofjustice argument in his COA Application.

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F.3d 1134, 1141 (10th Cir. 2009). We will address each

ground separately. But before doing so, we note that in

his § 2254 petition, Mr. Pinder failed to specify the precise constitutional basis for grounds one and two, asserting them as due process claims generally, but citing

no case law. In ground one, he alleged the State “provided the defense with false and perjured evidence,”

namely, an altered 911 tape. Aplt. App. at 25. And in

ground two, he alleged the State presented “false, perjured testimony of [a] jailhouse informant, Newly [sic]

Welch.” Id. at 33. When discussing these grounds in his

reply to the State’s response to his petition, Mr. Pinder

referred numerous times to both Napue v. Illinois, 360

U.S. 264, 269-70 (1959), which requires the prosecution

to correct a witness’s statement they know is false, and

Brady v. Maryland, 373 U.S. 83, 87 (1963), which requires the prosecution to disclose material exculpatory

evidence.

His framing of these claims in his state-court filings was also mixed. For its part, the USC apparently

treated them as Napue claims. See Pinder II, 367 P.3d

at 977 (“Pinder asserts that Welch perjured himself at

trial and that the State knowingly presented that perjured testimony.” (emphasis added)); id. at 978

(“Pinder’s second due process claim . . . is rooted in the

allegation that the State knowingly presented doctored

911 tapes[.]” (emphasis added)).

We need not definitively resolve whether these are

Brady or Napue claims (or both), because Mr. Pinder

has not established his entitlement to a COA on them

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under either construct. With this understanding, we

proceed with our analysis.

a. 911 tape

“Cause for a procedural default can exist when

some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural

rule.” Scott v. Mullin, 303 F.3d 1222, 1228 (10th Cir.

2002) (internal quotation marks omitted). One such

“objective factor external to the defense” is a “State’s

failure to disclose . . . information.” Id. at 1230. Mr.

Pinder alleges that is the case here—the State failed

to disclose that the 911 tapes had been altered.5

No reasonable jurist could agree with Mr. Pinder.

The USC’s discussion of why Mr. Pinder could have

presented the 911-tape claim at his criminal trial is instructive. The USC stated that Mr. Pinder failed to

identify any “clear ground for his assertion that [the

911-tape] claim could not have been presented at trial

or on a post-trial motion.” Pinder II, 367 P.3d at 979.

The court noted that his only argument why he could

not have presented this claim at trial or in a post-trial

motion was that “at some point [the defense team] decided that the only way to have a valid claim was to see

if there was an alteration of the tapes.” Id. (brackets,

ellipsis, and internal quotation marks omitted). The

court considered this as nothing more than an assertion that counsel did not decide to investigate the

5

For purposes of argument, we may assume the tapes were

altered and the prosecution knew or should have known about it.

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matter until the post-conviction phase and reasoned

that “[t]he same basis for the investigation by postconviction counsel was as readily available to trial

counsel.” Id. The court further observed that “Pinder

had ample grounds for pursuing an investigation into

the date of the staged fight and subsequent 911 recording at the time of trial,” specifically, conflicting testimony Ms. DeHart gave at her obstruction trial

(October 24) and at Mr. Pinder’s trial (October 25). Id.

(emphasis added). Moreover, Mr. Pinder “had every

motivation and opportunity to [pursue an investigation] at the time of trial.” Id. Although trial counsel

“did not have the results of the expert analysis during

the trial and post-trial proceedings,” the USC said

“they had everything else, and the additional evidence

provided by the expert[s’] nebulous conclusions is insufficient in this context to undermine the conclusion

that this claim ‘could have’ been brought earlier.” Id.

(footnote omitted). The “nebulous” quality of the experts’ conclusions the court referred to was the fact the

experts did not assert “that the date was altered in the

911 tapes” but “only that the recordings on both days

had been altered in some fashion.” Id. at 979 n.17.

We agree with this line of reasoning as it relates

to cause for procedural default. Any failure by the

State to disclose that the tapes had been altered did

not prevent Mr. Pinder from raising this claim at trial

given that (1) he knew Ms. DeHart previously identified, at her obstruction trial, the date of the fight as

October 24; (2) the date was of extreme importance to

Mr. Pinder because he claimed he had an alibi for the

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24th; and (3) trial counsel had the same basis for investigating the tapes as post-conviction counsel. During his criminal trial, therefore, Mr. Pinder could have

raised an issue about the date established by the tape

logs even without the experts’ analyses of the tapes.

Accordingly, he fails to establish the cause prong of the

cause-and-prejudice exception to procedural default.

That alone is sufficient to enforce the procedural default. See Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir.

1995) (“The ‘cause and prejudice’ exception is conjunctive, requiring proof of both cause and prejudice.”). We

therefore deny a COA on ground one.

b. Welch perjury

Mr. Pinder questions the USC’s determination

that he could have raised his Welch-perjury claim at

trial or in a post-trial motion. According to Mr. Pinder,

he could not have raised this claim earlier because he

did not know about the claim’s factual basis, which he

characterizes as Mr. Welch’s admission to the private

investigator that he lied about Mr. Pinder’s confession

to the murders, until well after he filed his new-trial

motion. He argues that prior to obtaining evidence that

Mr. Welch perjured himself, he only had a “belief that

[Mr. Welch was] not telling the truth” and that was insufficient “to formally allege that [Mr. Welch] committed perjury.” COA Appl. at 33-34.

Whether Mr. Pinder could have made a plausible,

formal allegation of perjury at trial is not the issue; his

claim arises under either Napue or Brady. We begin

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with Napue and assume, for purposes of argument,

that Mr. Pinder could not have brought a Napue claim

at trial or in his new-trial motion. But he still fails to

show that the refusal to consider this claim on the

ground of procedural default would result in prejudice.

The investigator’s affidavit says nothing about the

State’s knowledge of Mr. Welch’s alleged perjury. And

actual knowledge is an element of a Napue claim. See

United States v. Garcia, 793 F.3d 1194, 1207 (10th Cir.

2015) (“A Napue violation occurs when (1) a government witness committed perjury, (2) the prosecution

knew the testimony to be false, and (3) the testimony

was material.” (emphasis added)).6 The USC pointed

this out when it enforced the procedural default. See

Pinder II, 367 P.3d at 978 (explaining that the investigator’s affidavit said “nothing about the key element of

the State’s knowledge of Welch’s alleged perjury at the

time of trial—as there is no indication that the State

was aware of the contents of the [investigator’s] affidavit at the time it presented the Welch testimony at

trial”). Thus, had the USC actually entertained the

merits of this claim, it is clear Mr. Pinder would not

6

Relying on Garcia, Mr. Pinder contends that in this circuit,

to prove a Napue claim, “a petitioner must prove the prosecutor

knew or should have known of the falsity.” COA Appl. at 37 (emphasis added). This contention rests on a clear misreading of Garcia and conflates Napue and Brady. Indeed, we have recently (and

again) rejected the approach Mr. Pinder suggests, where a Napue

claim would lie even when “the government unwittingly elicits

false testimony.” Farrar v. Raemisch, 924 F.3d 1126, 1132 (10th

Cir. 2019). We have instead hewed to the approach detailed in

Garcia and numerous earlier Tenth Circuit cases. See id. at 1132

& nn.7 & 8.

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have prevailed under a Napue theory.7 And although

the state post-conviction court never ruled on a motion

for discovery Mr. Pinder filed to, as he now puts it, “find

out exactly what law enforcement knew,” COA Appl. at

30 n.6, Mr. Pinder develops no argument that the postconviction court constitutionally erred in doing so or

that the USC committed constitutional error in finding

no abuse of discretion in the effective denial of the discovery motion, see Pinder II, 367 P.3d at 980-81. For

these reasons, we deny a COA on ground two to the

extent it is based on Napue.

Construed as a Brady claim, Mr. Pinder fares no

better, as he cannot establish cause for his failure to

bring a Brady claim at trial or in his new-trial motion.

A Brady claim has three components: (1) “evidence . . .

favorable to the accused”; (2) “suppress[ion] by the

State, either willfully or inadvertently”; and (3) ensuing “prejudice.” Strickler v. Greene, 527 U.S. 263,

281-82 (1999). Suppression of relevant evidence is tantamount to cause for procedural default of a Brady

claim. See id. at 282 (explaining that cause can “parallel” the suppression component).

Mr. Pinder has not identified any relevant evidence the State suppressed. The evidence on which he

bases his claim is the investigator’s affidavit, which the

State could not have suppressed because Mr. Pinder’s

own investigator developed it for Mr. Pinder’s use.

7

To the extent the USC’s statement could be construed as a

ruling on the merits, we would conclude that reasonable jurists

could not debate that the USC reasonably applied Napue.

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Moreover, Mr. Pinder’s argument that the State should

have known of the perjury and, presumably, disclosed

that “fact” to Mr. Pinder at trial rests only on the many

grounds the USC identified as trial evidence that Mr.

Welch was lying, see Pinder II, 367 P.3d at 978 n.15.

Because those same grounds were equally evident to

Mr. Pinder at trial, there was no suppression. See

United States v. Erickson, 561 F.3d 1150, 1163 (10th

Cir. 2009) (explaining that under Brady, “a defendant

is not denied due process by the government’s nondisclosure of evidence if the defendant knew of the evidence anyway.”). Even more fundamentally, Mr. Pinder

knew better than anyone whether Mr. Welch was lying

because the testimony concerned a matter squarely

within Mr. Pinder’s knowledge—his confession to Mr.

Welch. For these reasons, there was no suppression

and therefore no cause for the procedural default. Accordingly, we deny a COA on ground two to the extent

it is based on Brady.

B. Ground three and Ruiz portion of ground

four

Ground three of Mr. Pinder’s § 2254 petition involved a Brady claim he raised in his motion for a new

trial, asserting the State suppressed material evidence

concerning Mr. Ruiz’s (1) alleged involvement in the

prior, unrelated kidnapping and murder of Todd Skidmore and (2) alleged drug-dealing membership in the

Mexican Mafia. Ground four concerned two separate

Brady issues: The State failed to disclose exculpatory

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evidence regarding plea agreements with Mr. Ruiz and

Mr. Brunyer.

Like the district court, we address the Ruiz portion of ground four together with ground three, and

discuss the Brunyer portion of ground four separately.

The trial court denied relief on the merits of these

claims. The USC affirmed, also on the merits. See

Pinder I, 114 P.3d at 558-60.

In ruling on ground three of the § 2254 petition

and the Ruiz portion of ground four, the district court

began by noting that “Pinder’s arguments are fatally

flawed by their cursory nature and failure to analyze

issues under the federal habeas standard of review”

and by his failure to “refer to any caselaw at all, let

alone the controlling case, Brady. For each issue,

Pinder merely lists evidence with his spin on it.” Aplt.

App. at 244. The court concluded that nonetheless, the

USC “selected the correct governing legal principle

with which to analyze these alleged evidentiary suppression issues: Brady and its progeny.” Id. at 244-45

(citation omitted). The district court noted that, unlike

Mr. Pinder, it had “thoroughly evaluated whether the

Utah Supreme Court reasonably applied Brady as to

Ruiz’s involvement in the Skidmore murder” and concluded that “[t]the Utah Supreme Court reasonably

applied Brady, particularly lacking any substantive

argument by Pinder to the contrary. Pinder has utterly

failed to meet his burden under the federal standard

of review here.” Id. at 246.

22a

Mr. Pinder finds “odd” the district court’s observation that he failed to analyze this issue under the

AEDPA standard, and he notes that in reply to the

State’s assertion of AEDPA “as a defense in its Response, he responded [in his § 2254 reply] with a 37page legal argument explaining why that standard did

not apply.” COA Appl. at 52 n.10 (emphasis added).

However, we read the district court’s decision as declining to consider the substantive arguments in Mr.

Pinder’s § 2254 reply because they came too late. See

Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 676

n.9 (10th Cir. 2016) (“We generally do not consider arguments raised for the first time in a reply brief.”). And

contrary to Mr. Pinder’s argument, “AEDPA’s standard

of review is not a procedural defense, but a standard of

general applicability for all petitions filed by state prisoners after the statute’s effective date presenting

claims that have been adjudicated on the merits by a

state court.” Gardner v. Galetka, 568 F.3d 862, 879

(10th Cir. 2009) (ellipsis and internal quotation marks

omitted). It was therefore Mr. Pinder’s obligation to explain to the district court in his § 2254 petition why

AEDPA did not apply. Waiting until his § 2254 reply

was too late. And the failure to “raise [an] issue at the

appropriate time” in the district court “waive[s] appellate review.” Impact Energy Res., LLC v. Salazar, 693

F.3d 1239, 1246 n.3 (10th Cir. 2012).

Accordingly, we will not consider any of the arguments in the COA Application regarding the USC’s rulings on the merits of these grounds because they were

all first broached in the § 2254 reply. And nothing in

23a

the USC’s analysis strikes us as being an unreasonable

application of Brady. Consequently, reasonable jurists

could not debate that it was within the district court’s

discretion to deny relief on ground three and the Ruiz

portion of ground four without consideration of the

specific arguments Mr. Pinder raised in his § 2254 reply, and the issue does not deserve encouragement to

proceed further. We therefore deny a COA on ground

three and the Ruiz portion of ground four.

C. Brunyer portion of ground four

Mr. Pinder attempted to raise the Brunyer portion

of ground four in a motion to amend the PPCR. He alleged the State failed to disclose the full terms of its

agreement with Mr. Brunyer to obtain his testimony at

Mr. Pinder’s trial, specifically “that Brunyer received

promises including an offer of probation in exchange

for his testimony.” PCR, R629-270 at 622. The only

“good cause” he identified for allowing the amendment

was that he had discovered the basis of the claim only

after the State filed its response to his PPCR. Id. The

post-conviction court denied the motion without explanation, and the USC affirmed. The USC ruled that, despite the lack of explanation, the trial court did not

abuse its discretion in denying the motion to amend

because the reason was evident: Mr. Pinder filed the

motion four years after he had filed his PPCR and a

full year after the State had filed a motion for summary judgment in the post-conviction proceeding.

Pinder II, 367 P.3d at 980. The USC reasoned that

24a

“Pinder had plenty of time to discover the facts purportedly meriting an amendment.” Id.

In his § 2254 petition, Mr. Pinder summarily argued that the state courts denied his Brunyer claim on

“a new rule of procedural default,” and therefore the

district court owed no AEDPA deference in ruling on

the merits. Aplt. App. at 45. He then discussed the merits, relying on the affidavit of Melissa Cowles that she

believed the prosecution offered Mr. Brunyer a plea

deal in exchange for his testimony. Mr. Pinder claimed

the existence of a plea deal with Mr. Brunyer and “the

offer of payment of monies to him in exchange for his

testimony” was not disclosed to the defense, and had

the jury heard of these things, it is reasonably probable

it would not have convicted Mr. Pinder. Id. In response,

the State argued that Mr. Pinder failed to acknowledge

the procedural problem with this claim and failed to

offer any excuse for his delay in raising it in the postconviction proceeding. Mr. Pinder replied that

§ 2254(d) did not bar review because the state courts

never adjudicated the claim on the merits. In the alternative, he summarily asserted that his default could

be excused by either the cause-and-prejudice or fundamental-miscarriage-of-justice exceptions, although he

developed no argument on either exception.

In a footnote, the district court concluded that

“[p]rocedural default also applies to Pinder’s argument

that information about Brunyer’s potential plea deal

was suppressed à la Brady. See Pinder [II], [367 P.3d

at 980] ¶ 61.” Aplt. App. at 249 n.3.

25a

In his COA Application, Mr. Pinder makes no argument that the state court applied a new rule of procedural default, but argues only that cause and

prejudice excuses any default:

The state court’s application of the procedural bar should be excused because the state

did not disclose its offer to Brunyer, and thus,

there is cause and prejudice for any default.

See, pgs. 25-27, above [where, in relevant part,

he argued that the failure to disclose the allegedly altered 911 tapes constituted cause].

Brunyer provided the sole testimony corroborating Ruiz’s version of the cleanup and

the failure to disclose the prosecution agreement with Brunyer warrants relief under the

de novo standard of review.

COA Appl. at 57.

These conclusory arguments are unconvincing.

First, Mr. Pinder does not even allege that Mr. Brunyer

accepted any offer that may have been made in Ms.

Cowles’s presence. And Ms. Cowles’s affidavit does not

establish that the State entered into an agreement

with Mr. Brunyer. Ms. Cowles said that while she was

waiting to testify, she was in a room with Mr. Brunyer,

the prosecutor, and others. She continued: “One of the

men handed Brunyer a document that was about 3

pages long. I heard them say the word ‘testimony’ and

also heard them talking with Brunyer about ‘probation,’ but I can’t recall the exact conversation or words.

I believed then, and believe now, that Brunyer was

26a

being offered a deal for hi[s] testimony.” PCR R629-270

at 619-20 (some internal quotation marks omitted).

This falls far short of demonstrating that Mr.

Brunyer accepted a deal in exchange for his testimony.

Lacking that, there was nothing for the State to disclose to Mr. Pinder under Brady, so Mr. Pinder cannot

establish cause for his delay in broaching the claim in

the post-conviction proceeding. Furthermore, Mr.

Pinder fails to establish a debatable argument that if

Ms. Cowles’s testimony had been presented at trial,

there is a reasonable probability that Mr. Pinder would

not have been convicted of the murders. See Banks v.

Dretke, 540 U.S. 668, 691 (2004) (reiterating rule that

prejudice in the context of a defaulted Brady claim “exists when the suppressed evidence is material for

Brady purposes” (internal quotation marks omitted));

Garcia, 793 F.3d at 1207 (explaining that materiality

under Brady requires showing “a reasonable probability that the result of the proceeding would have been

different had the evidence been disclosed” (internal

quotation marks omitted)). Accordingly, Mr. Pinder has

not met his burden to show that reasonable jurists

could debate whether the Brunyer portion of ground

four should have been considered on the merits by the

state court or the federal district court, or that the issue deserves encouragement to proceed further. We

therefore deny a COA on the Brunyer portion of

ground four.

27a

IV.

Conclusion

For the foregoing reasons, we deny Mr. Pinder’s

COA Application and dismiss this matter.

Entered for the Court

Jerome A. Holmes

Circuit Judge

28a

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH

Petitioner,

v.

MEMORANDUM

DECISION & ORDER

DENYING HABEASCORPUS PETITION

SCOTT CROWTHER,

(Filed March 6, 2019)

JOHN R. PINDER,

Respondent.

Case No. 2:16-CV-189-DN

District Judge

David Nuffer

In this federal habeas-corpus case, inmate John R.

Pinder, attacks his state conviction. 28 U.S.C.S. § 2254

(2018). Having carefully considered all relevant documents and law, the Court concludes that three of

Pinder’s claims are procedurally defaulted. And, on the

remaining claims, Pinder does not overcome the federal habeas standard of review. The Court therefore denies the petition with prejudice.

BACKGROUND

A portion of the background is quoted from a Utah

Supreme Court opinion:

Pinder owned a sprawling ostrich ranch in

Duchesne County. He and his ranch-hand,

Filomeno Ruiz, were accused (and ultimately

convicted) of murdering June Flood and Rex

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Tanner. Flood and Tanner also worked on

Pinder’s ranch.

According to the evidence at trial, Ruiz staged

a fight with his girlfriend, Mandy Harris, on

the day of the alleged murder. The purpose of

the staged fight was to get Harris away from

the ranch. Ruiz called 911 during this staged

altercation. Harris left after the police showed

up. And the 911 call was recorded by the local

dispatch.

That evening, Pinder, his girlfriend Barbara

DeHart, Ruiz, and Pinder’s employees Joe

Wallen and David Brunyer (along with

Brunyer’s wife) gathered around a campfire to

drink. At some point the conversation turned

to the “shrunken heads” that Pinder and

DeHart had seen at a curiosity shop in Seattle. Eventually Pinder spoke of his hopes to

someday acquire one. Pinder said to Ruiz,

“let’s go get some heads.” Ruiz responded with

a question: “four or two?” Pinder replied,

“two.”

After grabbing a baseball bat, Pinder and

Ruiz drove to the home where Flood and Tanner resided. Pinder violently assaulted Flood

and Tanner, kidnapped them, and then shot

them both with a 10 mm pistol. Pinder and

Ruiz then left the murder scene and later returned with ammonium nitrate and dynamite, packed the bodies with the explosives,

and set them off.

Pinder later got others to help him hide the

remains. Following a day of bulldozing the

30a

blast site, Pinder and Ruiz dropped several

black garbage bags of body parts into a barrel

and set them ablaze. Pinder, DeHart, and Ruiz

then met with the Brunyers for dinner, after

which Pinder and Ruiz returned to the lake to

collect more parts for burning.

Tuesday morning, at Pinder’s behest, Ruiz

and Brunyer went to the Flood home armed

with a bottle of alcohol and some rags to remove fingerprints and tidy up. After returning, Brunyer complained about the smell of

the Flood residence, to which Pinder quipped,

“[T]hat’s because [Tanner] shit his pants

when I shot him.” Pinder, Ruiz, and Brunyer

then spent the day bulldozing and gathering

more body parts for disposal. . . .

By Thursday, October 29th, Pinder and

DeHart had left the state, eventually arriving

in Cataldo, Idaho. . . .

Meanwhile, back at the ranch, an investigation was underway. One of Flood’s friends reported her missing, and police officers

searched the Flood residence. Police discovered the home in utter disarray, with blood on

the bed sheets and the backrest of a chair in

the living room. They also found a pair of excrement-stained pants in the bathroom. After

leaving the home, the investigating officer

saw and approached Brunyer, who was standing nearby. Brunyer appeared “[v]ery agitated, very nervous, [and] scared to death." . . .

Pinder and DeHart arrived back in Salt Lake

on November 4th. On that day they decided to

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appear on KSL News for a television interview about the murders. Shortly thereafter,

Pinder, Ruiz, and DeHart were all arrested.

Investigators later searched Pinder’s ranch

and found a gruesome assortment of the victims’ remains strewn about the area, stuck in

bushes, and hanging from trees. They also

searched Pinder’s truck and found a 10 mm

shell casing, one of the victim’s thumbprints

on the inside of a window, and some bloodstains (one identified as Pinder’s, the other

unidentified). Police also determined that the

rear windows had been wiped down and

cleaned, as well as the mid-section of the door

jam.

Ruiz pled guilty to two counts of murder. He

denied being the shooter, accusing Pinder instead. DeHart was charged with and later

convicted of obstruction of justice. State v.

DeHart, 2001 UT App 12. And Pinder was

charged with two counts of aggravated murder, two counts of aggravated kidnapping, two

counts of tampering with evidence, one count

of burglary of a dwelling, one count of possession of explosives, and two counts of desecration of a body.

While being held in the Summit County Jail

before his preliminary hearing, Pinder met an

inmate named Newly Welch. Pinder bragged

to Welch about killing Tanner and Flood and

blowing up their bodies. He told Welch that

the day of the murders, he and Ruiz staged a

fight with Ruiz’s girlfriend to get her off of the

ranch. Welch then asked Pinder what it was

32a

like to kill someone. And in response, Pinder

put his hand on Welch’s shoulder and said,

“[T]here’s no bigger rush[,] especially when

you know you’re going to get away with it.”

Pinder was convicted on all counts and sentenced to life with the possibility of parole on

the aggravated murder charges, and to consecutive statutory terms on the other counts.

Pinder filed a motion for a new trial. For various reasons, the motion took two years to resolve. During the eventual evidentiary

hearing on the new trial motion, Pinder presented several newly discovered witnesses –

Joey Silva (an inmate who allegedly spent

time with Ruiz), Robert Brunyer (David

Brunyer’s brother), and Kristy Barnes. Each

of these witnesses testified, in one way or another, that Ruiz and David Brunyer were actually the killers. The district court found

none of the new witnesses credible; indeed,

the court expressly found each of them to be

seriously lacking in trustworthiness and accordingly denied the motion. Pinder appealed,

and we unanimously affirmed his conviction.

State v. Pinder, 2005 UT 15.

Pinder filed this petition for post-conviction

relief in 2006. He presented two main theories

of relief. First, he claimed that newly discovered evidence would exonerate him. Pinder

brought affidavits from two more inmates

who had spent time with Ruiz while incarcerated: Beau Heaps and Danny Alvarez. The Alvarez affidavit stated that while in the

Duchesne County Jail, Ruiz told Alvarez that

33a

he and a “gavacho” committed the murders

but that Pinder had “nothing to do with it.”

The Heaps affidavit stated that Heaps met

Ruiz at the Utah State Prison and that Ruiz

similarly told him that Ruiz and another man

– not Pinder – were the murderers.

Pinder’s second claim was based on the allegation that the State had violated his due process rights by knowingly presenting perjured

testimony from Welch and by falsifying evidence concerning the 911 recording of the

fight between Ruiz and Harris. To support his

claims regarding Welch, Pinder provided an

affidavit from a defense investigator who

claimed that Welch admitted to lying on the

stand but that he would not testify regarding

his own perjury until “he was released from

probation.” With respect to the 911 tapes,

Pinder submitted lengthy expert analyses of

the 911 recordings of the Ruiz/Harris “fight.”

This analysis concluded that the 911 call recordings from the days of October the 24th

and 25th were “not pristine,” had in some way

been “altered” and “tampered with by exporting and editing,” and that these files could not

“be deemed reliable.” Based on these expert

reports, Pinder concluded that: (1) the police

had altered the recordings of the 911 call to

make the Ruiz/Harris fight appear to have

happened on Sunday the 25th rather than on

Saturday the 24th; and (2) the State then used

this fabricated date as a “baseline” in order to

coax witnesses at trial to believe that all the

events happened on Sunday rather than Saturday.

34a

Discovery lasted three years, largely because

of a drawn out battle over disqualification of

the district court judge. During this time, both

Ruiz and Alvarez were deposed. In 2009, at

the close of discovery, the State moved for

summary judgment on several grounds. The

State first addressed the newly discovered evidence claims, arguing that they “could . . .

have been discovered through the exercise of

reasonable diligence,” Utah Code Ann. § 78B9-104(1)(e)(i) (2018), were merely cumulative

of other evidence, were merely for impeachment, and in any event would not have

changed the outcome of trial. Turning to the

due process claims, the State first invoked the

procedural bar limitations in the PCRA. Id.

§ 78B-9-106(1)(c). It argued that the due process claims “could have been but [were] not

raised at trial or on appeal,” or during Pinder’s

new trial motion. Id. Next, the State argued

that Pinder failed to establish that the State

“knew or had reason to believe Welch’s testimony was false.” Over a year later, Pinder

filed a response, a motion to amend the petition, and a motion for additional discovery.

The district court granted summary judgment

[for] the State. It first held, with respect to

new evidence, (1) Pinder failed to show that

the Heaps and Alvarez testimony could not

have been discovered by the exercise of reasonable diligence, (2) the evidence was merely

cumulative and merely for impeachment, and

(3) even if the evidence were considered, it did

not establish that the newly discovered evidence would make it impossible for a

35a

reasonable jury to render a guilty verdict.

Turning to the due process claims, the court

dismissed them both as procedurally barred

because they could have been brought “during

Pinder’s motion for a new trial or on appeal.”

The court also ruled on the merits of both the

Welch claim and the 911 claim, holding that

Pinder had failed to shoulder his burden of

showing that the State knew or should have

known that both the Welch testimony and the

911 tapes were false. The court never expressly addressed Pinder’s motion for additional discovery. But it effectively denied the

motion by granting the State’s motion for

summary judgment. As for the motion to

amend, the court denied it in its order granting summary judgment, but without explaining its reasons for doing so.

Pinder v. State, 2015 UT 56, ¶¶ 4-19.

Pinder timely appealed, asserting two sets of

claims for relief: (1) He presented newly discovered evidence of witnesses Alvarez and Heaps, apparently to

show Pinder’s innocence. Id. ¶ 2. (2) He asserted that

the State violated his due-process rights by knowingly

adducing at trial perjured testimony and fabricated evidence. Id. The supreme court rejected the first claim

on the merits and the second set of claims as procedurally defaulted.

36a

PINDER’S ASSERTED GROUNDS

FOR FEDERAL-HABEAS RELIEF

Pinder asserts several grounds for federal habeas

relief:

(I) The State violated Pinder’s due-process

rights by (A) falsifying 911 recordings to show

the murder occurred on October 25, not October 24, 1998; and (B) presenting Newly

Welch’s perjured false testimony.

(II) The State violated Brady v Maryland,

373 U.S. 83 (1963), by not disclosing exculpatory evidence regarding (A) main prosecution

witness Ruiz; (B) Ruiz and Brunyer’s plea

deals; and (C) patterns of police misconduct.

(III) Newly discovered evidence was not

properly considered as to (A) Ruiz admissions

(i.e., potential witnesses Alvarez, Heaps, and

witness Silva); (B) Brunyer admissions (i.e.,

witnesses Barnes, Robert Brunyer, and potential witnesses, James and Leann Hill, and

Moellmer).

(IV)

Cumulative error.

ANALYSIS

I.

PROCEDURAL DEFAULT BARS SOME

GROUNDS FOR RELIEF

Grounds (I)(A) and (B) are procedurally defaulted.

“[I]f Petitioner failed to comply with a state procedural requirement for bringing . . . claim[s], there is a

37a

. . . bar to federal review, namely procedural default.”

Parkhurst v. Shillinger, 128 F.3d 1366, 1370 (10th Cir.

1997); see also Coleman v. Thompson, 501 U.S. 722, 750

(1991) (holding, when federal claim defaulted in state

court on independent and adequate state procedural

basis, federal review of claim barred unless cause for

default and actual prejudice shown). Because Pinder

could have but did not raise his claims regarding the

911 recording and Welch’s testimony “at trial or on appeal,” Pinder, 2015 UT 56, ¶ 38 (quoting Utah Code

Ann. § 78B-9-106(1)(c) (2018)), the Utah Supreme

Court deemed those issues procedurally defaulted and

declined to analyze them on their merits. Id.

Pinder argues that the procedural default in state

court was not based on an independent and adequate

state rule. “To be independent, the procedural ground

must be based solely on state law.” Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012). “To be adequate, the procedural ground ‘must be strictly or

regularly followed and applied evenhandedly to all

similar claims.’ ” Id. (quoting Sherrill v. Hargett, 184

F.3d 1172, 1174 (10th Cir. 1999)).

In concluding that these two of Pinder’s claims

were procedurally defaulted, the Utah Supreme Court

explicitly discussed and applied the provisions of

Utah’s Post-Conviction Remedies Act, Utah Code Ann.

§ 17B-9-101 through -405 (2018), and its strict limitations on post-conviction-relief petitions by inmates

who could have raised their issues earlier but did not.

See id. § 78B-9-106(1)(c) (“A person is not eligible for

relief under this chapter upon any ground that . . .

38a

could have been but was not raised at trial or on appeal. . . .”); Thacker, 678 F.3d at 835. “Thus, there is

simply no doubt that the [Utah Supreme Court’s] ruling rested exclusively on [Utah] state law.” Thacker,

678 F.3d at 835.

Pinder also contends that the state procedural

ground upon which the Utah Supreme Court relied

was inadequate because it was a “new” procedural

ground and therefore could not have been regularly

and evenly applied in the past. However, the procedural ground that the Utah Supreme Court relied

upon was the time-tested and well-worn ground that

an applicant for post-conviction relief is ineligible for

relief upon any ground that was not raised at trial or

on appeal. Ross v. State, 2012 UT 93, ¶ 25; Johnson v.

State, 2011 UT 59, ¶¶ 6, 9; Schwenke v. State, 2012 UT

App 18, ¶ 5; Rynhart v. State, 2011 UT App 6, ¶¶ 2-5;

Pedockie v. State, No. 20100372-CA, 2010 Utah App.

LEXIS 299, at *1 (Utah Ct. App. Oct. 28, 2010) (per curiam); Underwood v. State, 2010 UT App 129, ¶¶ 3-5

(per curiam); Kissell v. State, 2010 UT App 123, ¶¶ 2-3;

Zampedri v. State, 2009 UT App 302, ¶ 4 (per curiam);

Meinhard v. Turley, 2009 UT App 150, ¶ 3 (per curiam);

Fleming v. State, 2008 UT App 407, ¶¶ 2-3 (per curiam). In fact, the Court could not find a case – and

Pinder has not pointed toward any case – in which this

ground has not been applied when relevant in the

Utah appellate courts.

The part of the Utah Supreme Court’s analysis

that Pinder contends is “new” (and therefore not regularly and evenly applied in the past) is the idea that

39a

“raised at trial” includes a post-trial motion in the trial

court. But that was not even necessarily what the court

was relying on in concluding the procedural bar applied. The court apparently believed that Pinder had

enough information about these two claims to assert

them during his actual trial. As to Welch’s testimony,

the court said, “[T]he defense had plenty of grounds for

this assertion [that Welch perjured himself ] at trial.”

Pinder, 2015 UT 56, ¶ 48. And when it said “at trial,”

in this context, it meant when Welch testified, not in

the post-trial period before appeal. See id. Meanwhile,

as to the assertedly doctored-911 tapes, the Court

noted, “Pinder offers no clear ground for his assertion

that this claim could not have been presented at

trial. . . .” Id. ¶ 53. Again, “at trial” meant the time

when the murder date was being discussed in trial proceedings, not in the post-trial period before appeal. See

id. And the Court need not address the alleged newness of this adequate state procedural basis for default.

The procedural bar here hinged on an independent

and adequate state ground.

B.

Actual-Innocence Exception

Pinder may overcome procedural default, but only

by showing “cause for the default and actual prejudice

as a result of the alleged violation of federal law, or . . .

that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at

750. His arguments appear to hinge on “newly

40a

discovered evidence,” so the exception Pinder relies on

is essentially that of fundamental miscarriage of justice or actual innocence. Pinder’s arguments under this

heading re-argue for the most part every one of his

claims in this petition – all having been rejected by the

Utah Supreme Court. Pinder, 2015 UT 56; State v.

Pinder, 2005 UT 15. Evidence of actual innocence proffered must meet all three criteria: (1) new, (2) reliable,

and (3) so probative and compelling that no reasonable

juror could find guilt. See Schlup v. Delo, 513 U.S. 298,

324-29 (1995). Requirement one is not met here. All the

newly discovered evidence Pinder raises is essentially

every claim that he brought before the Utah Supreme

Court and in this petition, re-argued as grounds for a

finding of actual innocence here.

There is no new evidence. Petitioner’s mere rehashing of evidence and alleged civil-rights violations

do not show that the exception applies. Indeed, the kernel of the analysis of actual innocence is not whether

Petitioner urgently believes errors existed – or

whether error indeed existed – in state proceedings,

but whether Petitioner is factually innocent. Actual innocence must also be supported by new evidence,

which Petitioner has not provided.

The first two grounds in the petition – the prosecution’s violation of Pinder’s due-process rights

through falsified 911 recordings and introduction of

Welch’s perjured, falsified testimony – are denied because of procedural default.

41a

II.

MERITS ANALYSIS

Pinder argues that the prosecution violated his

constitutional rights under Brady by not disclosing exculpatory evidence. He also contends that the Utah

courts did not properly consider “new evidence” argued

in his defense after his trial. These claims are denied

on their merits.

A.

Standard of Review

The standard of review to be applied in federal habeas cases is found in § 2254, under which this habeas

petition is filed. It states:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim –

(1) resulted in a decision that was contrary

to, or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

28 U.S.C.S. § 2254(d) (2018). Subsection (d)(1) governs

claims of legal error while subsection (d)(2) governs

claims of factual error.” House v Hatch, 527 F.3d 1010,

1015 (10th Cir. 2008).

42a

The inquiry includes whether Utah Supreme

Court’s rejection of Pinder’s claims “was contrary to, or

involved an unreasonable application of, clearly established Federal law.” 28 U.S.C.S. § 2254(d)(1) (2018).

This “ ‘highly deferential standard,’ ” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citation omitted); see Littlejohn v. Trammell, 704 F.3d 817, 824 (10th Cir. 2013),

is “ ‘difficult to meet,’ because [the statute’s] purpose is

to ensure that federal habeas relief functions as a

‘guard against extreme malfunctions in the state criminal justice systems,’ and not as a means of error correction.” Greene v. Fisher, 565 U.S. 34, 38 (2011)

(quoting Harrington v. Richter, 562 U.S. 86, 102-103

(2011) (citation omitted)). This court is not to determine whether the Utah Supreme Court’s decisions

were correct or whether a different outcome might

have been reached. See Lockyer v. Andrade, 538 U.S. 63,

75-76 (2003). “The role of federal habeas proceedings,

while important in assuring that constitutional rights

are observed, is secondary and limited.” Barefoot v. Estelle, 463 U.S. 880, 887 (1983). And, “[t]he petitioner

carries the burden of proof.” Cullen, 563 U.S. at 181.

Under Carey v. Musladin, 549 U.S. 70 (2006), the

first step is determining whether clearly established

federal law exists relevant to Pinder’s claims. House,

527 F.3d at 1017-18; see also Littlejohn, 704 F.3d at 825.

Only after answering that “threshold question” affirmatively does the issue arise “whether the state court

decision is either contrary to or an unreasonable application of such law.” Id. at 1018.

43a

[C]learly established [federal] law consists of

Supreme Court holdings in cases where the

facts are at least closely-related or similar to

the case sub judice. Although the legal rule at

issue need not have had its genesis in the

closely-related or similar factual context, the

Supreme Court must have expressly extended

the legal rule to that context.

Id. at 1016.

Further, “in ascertaining the contours of clearly established law, we must look to the ‘holdings as opposed

to the dicta, of [the U.S. Supreme] Court’s decisions as

of the time of the relevant state-court decision.’ ” Littlejohn, 704 F.3d at 825 (quoting Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) (emphasis added)

(citations omitted)). And, a court deciding a federal habeas claim is not restricted by the state court’s analysis

whendeciding whether relevant clearly established

federal law exists. See Bell v. Cone, 543 U.S. 447, 455

(2005) (“[F]ederal courts are not free to presume that

a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation.”); Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (“[A]

state court need not even be aware of our precedents,

‘so long as neither the reasoning nor the result of the

state-court decision contradicts them.’ ”) (citation omitted).

If that threshold is overcome, habeas relief may be

granted only when the state court has “unreasonably

applied the governing legal principle to the facts of the

petitioner’s case.” Walker v. Gibson, 228 F.3d 1217,

44a

1225 (10th Cir. 2000) (citing Williams v. Taylor, 529

U.S. 362, 412-13 (2000)). This deferential standard

does not let a federal court issue a writ of habeas corpus merely because it determines on its own that the

state-court decision erroneously applied clearly established federal law. See id. “ ‘Rather that application

must also be unreasonable.’ ” Id. (quoting Williams,

529 U.S. at 411). Indeed, “ ‘an unreasonable application

of federal law is different from an incorrect application

of federal law.’ ” Harrington, 562 U.S. at 100 (emphasis

in original) (quoting Williams, 529 U.S. at 410).

This highly demanding standard means to pose a

sizable obstacle to habeas petitioners. Id. at 786. Section 2254(d) “stops short of imposing a complete bar on

federal court relitigation of claims already rejected in

state proceedings.” Id. It maintains power to issue the

writ when no possibility exists that “fairminded jurists

could disagree that the state court’s decision conflicts

with th[e Supreme] Court’s precedents. It goes no farther.” Id. To prevail in 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 786-87. It is

against this backdrop that the standard of review will

be applied to this case’s circumstances.

45a

B.

Brady Violations

Pinder’s arguments about the prosecution’s alleged failure to disclose exculpatory evidence to his defense are based on: (1) Ruiz’s involvement in the

“Skidmore murder,” drug dealing, and “Mexican Mafia”; (2) Ruiz and Brunyer’s1 plea-deal terms; and (3)

extensive police misconduct in Uintah Basin. Pinder’s

arguments are fatally flawed by their cursory nature

and failure to analyze issues under the federal habeas

standard of review. Beneath each heading to the three

categories of “exculpatory evidence,” Pinder merely

states, “The state court’s denial of this claim was contrary to and an unreasonable application of clearly established federal law, 28 U.SC. § 2254(d)(1), and an

unreasonable determination of the facts. 28 U.S.C.

§ 2254(d)(2).” (Pet., Doc. No. 1, at 41, 44, 47.) Most damaging to his cause, Pinder’s arguments do not refer to

any caselaw at all, let alone the controlling case, Brady.

For each issue, Pinder merely lists evidence with his

spin on it. This does not even begin to meet his burden

to show that the Utah Supreme Court applied the

wrong United States Supreme Court precedent and/or

unreasonably applied that precedent.

Remembering that review is tightly restricted by

the federal habeas standard of review, this Court observes that Utah Supreme Court selected the correct

governing legal principle with which to analyze these

alleged evidentiary suppression issues: Brady, 373 U.S.

83 and its progeny. Pinder, 2005 UT 15, ¶ 22. Unlike

1

Addressed later in footnote three.

46a

Pinder, the supreme court took care to set forth Brady’s

requirements in several paragraphs:

In Brady, the United States Supreme Court

held “that the suppression by the prosecution

of evidence favorable to an accused upon request violates due process where the evidence

is material either to guilt or punishment, irrespective of the good faith or bad faith of the

prosecution.” Id. at 87. The Supreme Court

later expanded this principle by placing a

duty on the prosecution to disclose material

evidence favorable to a defendant even in the

absence of a request by the accused. United

States v. Agurs, 427 U.S. 97, 107 (1976). The

duty to disclose applies to substantive as well

as impeachment evidence. United States v.

Bagley, 473 U.S. 667, 676 (1985).

When claiming that the prosecution’s failure

to disclose evidence requires a new trial, the

Supreme Court has stated that a defendant

must show the following: “The evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82

(1999). Consistent with this standard, we

have declared that a Brady violation “occurs

only where the state suppresses information

that (1) remains unknown to the defense both

before and throughout trial and (2) is material

and exculpatory, meaning its disclosure would

have created a ‘reasonable probability’ that

47a

‘the result of the proceeding would have been

different.’ ” State v. Bisner, 2001 UT 99, ¶ 33

(quoting Bagley, 473 U.S. at 682).

Explaining the Brady inquiry announced in

Bisner, we noted that “courts universally refuse to overturn convictions where the evidence at issue is known to the defense prior to

or during trial, where the defendant reasonably should have known of the evidence, or

where the defense had the opportunity to use

the evidence to its advantage during trial but

failed to do so.” Id.; see also United States v.

Aichele, 941 F.2d 761, 764 (9th Cir. 1991)

(“When . . . a defendant has enough information to be able to ascertain the supposed

[Brady] material on his own, there is no suppression by the government.”); United States

v. Pandozzi, 878 F.2d 1526, 1529 (1st Cir. 1989)

(concluding that Brady is not violated when

the defense could have obtained the information “with any reasonable diligence” (internal quotation omitted)); United States v.

Davis, 787 F.2d 1501, 1505 (11th Cir. 1986)

(the Brady “rule does not apply if the evidence

in question is available to the defendant from

other sources”).

Further, as the second component of the Bisner test makes clear, the evidence in question

must be material, such that a different result

on retrial is reasonably probable. 2001 UT 99

at ¶ 33. It is important to note, however, that

the Brady materiality standard is not identical to a sufficiency of evidence review. See

Kyles v. Whitley, 514 U.S. 419, 434 (1995)

48a

(explaining that the Brady materiality analysis “is not a sufficiency of evidence test”). Rather, a reviewing court must look at the

suppressed evidence and determine whether,

taken cumulatively, the absence of the suppressed evidence at trial undermines confidence in the fairness of the proceeding. See id.

at 434-35. As a result, “the question is not

whether the defendant would more likely

than not have received a different verdict with

the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. at

434.

Id. ¶¶ 23-26. The Court’s review of Brady and its progeny reveals that the Utah Supreme Court accurately

set forth the law here.

As required by the standard of review – which

Pinder ignored by providing no analysis – this opinion

has thoroughly evaluated whether Utah Supreme

Court reasonably applied Brady as to Ruiz’s involvement in the Skidmore murder, id. ¶¶ 28-33; Ruiz’s plea

negotiations, id. ¶¶ 38-42; and police corruption in the

Uintah Basin, id. ¶¶ 34-37. Within several paragraphs

under each heading, the Utah Supreme Court set forth

Brady’s requirements and carefully applied them to

the type of evidence allegedly not disclosed. The Utah

Supreme Court reasonably applied Brady, particularly

lacking any substantive argument by Pinder to the

contrary. Pinder has utterly failed to meet his burden

under the federal standard of review here.

49a

C.

“New Evidence”

Pinder contends that specific testimony should

have been – but was not – accepted as new evidence

warranting a new trial, including testimony offered by

Silva, Robert Brunyer, Moellmer, Barnes, and the Hills

(assessed on direct appeal) and Alvarez and Heaps (assessed on appeal from post-conviction application).

Pinder, 2015 UT 56, ¶¶ 25-36; Pinder, 2005 UT 15,

¶¶ 64-90. He attacks the Utah Supreme Court’s rejection of this “new evidence” as

a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . a

decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C.S. § 2254(d) (2018). But Pinder gives mere lip

service to the federal habeas standard of review, stating it but providing no analysis using it.

First, the state Pinder opinions did not analyze the

new-evidence issues under the Federal Constitution,

but under state-law standards. It is well-settled that a

federal court may grant habeas relief only for violations of the Constitution or laws of the United States.

Estelle v. McGuire, 502 U.S. 62, 68 (1991); Rose v.

Hodges, 423 U.S. 19, 21 (1975). Errors of state law are

not a basis for relief. Estelle, 502 U.S. at 67; Lewis v.

Jeffers, 497 U.S. 764, 780 (1990). Petitioner thus has no

valid argument here.

50a

Second, to the degree that Pinder challenges the

state courts’ factual findings, he overlooks the controlling statute’s further guidance as to state-court factual

findings:

In a proceeding instituted by an application

for a writ of habeas corpus by a person in custody pursuant to the judgment of a State

court, a determination of a factual issue made

by a State court shall be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by

clear and convincing evidence.

28 U.S.C.S. § 2254(e)(1) (2018).

Under the statute, the the correctness of all statecourt factual findings about purportedly new evidence

is presumed. This includes state court findings that the

Hills’ offered testimony “was available or known to

Pinder before the conclusion of trial,” Pinder, 2005 UT

15, ¶ 72; Moellmer’s offered testimony could have been

uncovered by trial’s end by “a reasonably diligent

search,” id. ¶ 740; as witnesses, Robert Brunyer’s and

Barnes’s “credibility was highly suspect and not entitled to any significant weight” that could have had “a

strong enough impact on a jury to make a different result on retrial probable,” id. ¶ 78; “ ‘it is difficult to conceive of a less trustworthy witness’ than Silva,” id.

¶ 86; and, while the Heaps-and-Alvarez-offered testimony “adds something to Pinder’s theory that Ruiz

was the one who shot Flood and Tanner, a reasonable

jury would still be well within its prerogative to convict

Pinder based on the evidence it had before it” and thus

51a

it did not trigger a new trial,2 Pinder, 2015 UT 56, ¶ 36.

Pinder’s mere repetition of all his past arguments does

not meet the “clear and convincing evidence” threshhold the standard of review requires. “In light of the

record as a whole, [the Court] conclude[s] that

[Pinder’s] argument on this point doesn’t entitle him to

relief under § 2254(d)(2)’s ‘daunting standard.’ ” Vreeland v. Zupan, 906 F.3d 866, 881 (10th Cir. 2018) (citations omitted).

D.

Cumulative Error

“In the federal habeas context, a cumulative-error

analysis aggregates all constitutional errors found to

be harmless and analyzes whether their cumulative effect on the outcome of the trial is such that collectively

they can no longer be determined to be harmless.” Cole

v. Trammell, 755 F.3d 1142, 1177 (10th Cir. 2014) (quoting Alverson v. Workman, 595 F.3d 1142, 1162 (10th

Cir. 2010)). “The cumulative-error analysis applies

where there are two or more actual errors. It does not

apply, however, to the cumulative effect of non-errors.”

Smith, 824 F.3d at 1255 (quoting United States v.

Franklin-El, 555 F.3d 1115, 1128 (10th Cir. 2009)).

There are not errors here, so the cumulative-error doctrine does not apply.

2

This last “finding” could be termed a legal conclusion; however, as a legal conclusion it would fall under the category of a

state-law determination that this Court will not review. See Estelle, 502 U.S. at 67

52a

CONCLUSION

Pinder’s claims are either procedurally defaulted3

or do not pass muster under the federal habeas standard of review.

IT IS THEREFORE ORDERED that the petition

for writ of habeas corpus is DENIED and the action

DISMISSED WITH PREJUDICE.

IT IS ALSO ORDERED that a certificate of appealability is DENIED.

This action is CLOSED.

BY THE COURT

/s/ David Nuffer

JUDGE DAVID NUFFER

United States District Court

3

Procedural default also applies to Pinder’s argument that

information about Brunyer’s potential plea deal was suppressed

à la Brady. See Pinder, 2015 UT 56, ¶ 61.

53a

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH

JOHN R. PINDER,

Petitioner,

JUDGEMENT IN A

CIVIL CASE

Case No. 2:16-CV-189-DN

v.

SCOTT CROWTHER,

District Judge

David Nuffer

Respondent.

IT IS ORDERED AND ADJUDGED

that Petitioner’s action is dismissed with prejudice

because it fails to state a claim upon which relief may

be granted.

DATED this 6th day of March, 2019.

BY THE COURT

/s/ David Nuffer

JUDGE DAVID NUFFER

United States District Court

54a

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

---------------------------------------------------------------------------------------------

JOHN R. PINDER,

Petitioner – Appellant,

v.

SCOTT CROWTHER,

No. 19-4039

(D.C. No. 2:16-CV00189-DN)

(D. Utah)

Respondent – Appellee.

---------------------------------------------------------------------------------------------

ORDER

---------------------------------------------------------------------------------------------

(Filed Apr. 6, 2020)

Before HARTZ, HOLMES, and MORITZ, Circuit

Judges.

Appellant’s petition for rehearing is denied.

The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular

active service. As no member of the panel and no judge

in regular active service on the court requested that

the court be polled, that petition is also denied.

Entered for the Court

/s/ [Illegible]

CHRISTOPHER M. WOLPERT, Clerk