Petition for Writ of Certiorari — Von Lester Taylor, Petitioner v. Robert Powell, Warden
Supreme Court briefMar 7, 2022
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CAPITAL CASE
No. 21IN THE
Supreme Court of the United States
___________
VON LESTER TAYLOR,
v.
ROBERT POWELL, WARDEN
___________
Petitioner,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Tenth Circuit
___________
PETITION FOR A WRIT OF CERTIORARI
___________
BRIAN M. POMERANTZ*
JEFFREY T. GREEN
SIDLEY AUSTIN LLP
LAW OFFICES OF BRIAN M.
POMERANTZ
1501 K Street NW
Washington, DC 20005
P.O. Box 853
(202) 736-8000
Carrboro, NC 27510
(323) 630-0049
Habeas@protonmail.com
XIAO WANG
NORTHWESTERN SUPREME
COURT PRACTICUM
375 East Chicago Avenue
Chicago, IL 60611
(312) 503-1486
KENNETH F. MURRAY
LAW OFFICE OF KENNETH
F. MURRAY
316 East Mitchell Drive
Phoenix, AZ 85012
(602) 684-7391
Counsel for Petitioner
March 7, 2022
*Counsel of Record
QUESTION PRESENTED
Does a federal court violate principles of federalism
and comity enshrined in the Tenth Amendment by selecting one possible interpretation of an ambiguous
substantive state law rather than certifying a question
to the highest court of the state?
(i)
ii
PARTIES TO THE PROCEEDING AND RULE
29.6 STATEMENT
Petitioner is Von Lester Taylor. Respondent is Robert Powell. No party is a corporation.
iii
RULE 14.1(b)(iii) STATEMENT
This case arises from the following proceedings in
the United States District Court for the District of
Utah, and the United States Court of Appeals for the
Tenth Circuit:
Taylor v. Crowther, No. 2:07-CV-194-TC, 2020 WL
1158372 (D. Utah Mar. 10, 2020).
United States v. Powell, 7 F.4th 920 (July 30, 2021).
There are no other proceedings in state or federal
trial or appellate courts, or in this Court directly related to this case.
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .................................
i
PARTIES TO THE PROCEEDING AND RULE
29.6 STATEMENT ............................................
ii
RULE 14.1(b)(iii) STATEMENT ..........................
iii
TABLE OF AUTHORITIES .................................
vi
OPINIONS BELOW .............................................
1
JURISDICTION....................................................
1
CONSTITUTIONAL PROVISION INVOLVED ..
1
STATEMENT OF THE CASE..............................
2
A. Introduction...............................................
2
B. Factual Background ..................................
3
REASON FOR GRANTING THE PETITION .....
7
THE TENTH CIRCUIT RULED ON AN
AMBIGUOUS QUESTION OF UTAH SUBSTANTIVE CRIMINAL LAW INSTEAD OF
CERTIFYING THE QUESTION TO
UTAH’S HIGHEST COURT, VIOLATING
BEDROCK CONSTITUTIONAL PRINCIPLES OF FEDERALISM AND COMITY....
7
CONCLUSION .....................................................
16
v
TABLE OF CONTENTS
(continued)
Appendix A — Court of appeals opinion (July 30,
2021) ............................................
Page
1a
Appendix B — District court order granting relief and vacating judgment
(March 10, 2020).......................... 52a
Appendix C — District court order granting evidentiary hearing (January 17,
2017) ............................................ 90a
Appendix D — Court of appeals order denying
petition for rehearing (October 8,
2021) ............................................ 116a
Appendix E — Petition for rehearing (September
13, 2021) ...................................... 118a
vi
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Ariz. State Legis. v. Ariz. Indep. Redistricting
Comm’n, 576 U.S. 787 (2015) ......................
9
Bond v. United States,
564 U.S. 211 (2011) ......................................
9
Brecht v. Abrahamson,
507 U.S. 619 (1993) ......................................
8
Brockett v. Spokane Arcades, Inc.,
472 U.S. 491 (1985) ................................... 2, 11
Chapman v. LeMaster,
302 F.3d 1189 (10th Cir. 2002) .................... 7, 8
Fisher v. Univ. of Tex.,
136 S. Ct. 2198 (2016) ..................................
8
Garza v. Burnett,
672 F.3d 1217 (10th Cir. 2012) .................... 14
Houston v. Hill,
482 U.S. 451 (1987) ...................................... 15
Jordan v. Maxim Healthcare Servs., Inc.,
950 F.3d 7241 (10th Cir. 2020) ....................
8
Mason v. American Emery Wheel Works,
241 F.2d 906 (1st Cir. 1957) ........................
8
McKesson v. Doe,
141 S. Ct. 48 (2020) ...................................... 14
New State Ice Co. v. Liebmann,
285 U.S. 262 (1932) ......................................
9
vii
TABLE OF AUTHORITIES
(continued)
Page(s)
New York v. United States,
505 U.S. 144 (1992) ......................................
8
Schlup v. Delo,
513 U.S. 298 (1995) ......................................
6
Screws v. United States,
325 U.S. 91 (1945) ........................................
8
Smith v. O’Grady,
312 U.S. 329 (1941) ...................................... 15
Tenn. Wine & Spirits Retailers Ass’n v.
Thomas, 139 S.Ct. 2449 (2019) ....................
9
United States v. Lopez,
514 U.S. 549 (1995) ...................................... 8, 9
Virginia v. Am. Booksellers Ass'n, Inc.,
484 U.S. 383 (1988) ......................................
2
STATE CASES
D.B. v. State,
289 P.3d 459 (Utah 2012) ...................... passim
People v. Jenkins,
997 P.2d 1044 (Cal. 2000) ............................ 10
State v. Barela,
349 P.3d 676 (Utah 2015) ............................ 12
State v. Bird
345 P.3d 1141 (Utah 2015) .......................... 12
State v. Eyre,
500 P.3d 776 (Utah 2021) ...................... passim
viii
TABLE OF AUTHORITIES
(continued)
Page(s)
State v. Gonzales,
56 P.3d 969 (Utah Ct. App. 2002).......... 3, 7, 12
State v. Hummel,
393 P.3d 314 (Utah 2017) ............................ 13
State v. Phillips,
317 P.3d 236 (Or. 2013) ............................ 9, 10
STATUTES
28 U.S.C. § 1254(1) ..........................................
1
Utah Code Ann. § 76-2-202 (1990)..................
5
Utah Code Ann. § 76-5-202(1)(b), (d) (1990) .. 4, 5
OTHER AUTHORITIES
Federalist No. 39, (C. Rossiter ed. 1961) ......
8
U.S. Const. amend. X ............................... 1, 3, 8, 9
Utah R. App. Proc. 41(a) ................................. 14
PETITION FOR A WRIT OF CERTIORARI
Petitioner Von Lester Taylor respectfully petitions
for a writ of certiorari to review the judgment and
opinion of the United States Court of Appeals for the
Tenth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 2a–
51a) is reported at 7 F.4th 920. The district court’s order granting relief and vacating the conviction (App.,
infra, 53a–89a) is not published in the Federal Supplement, but is available at 2020 WL 1158372. The district court’s order granting the evidentiary hearing
(App., infra, 91a–115a) is not published in the Federal
Supplement, but is available at 2017 WL 168871.
JURISDICTION
The United States Court of Appeals for the Tenth
Circuit entered judgment on July 30, 2021, and denied
Von Taylor’s petition for rehearing en banc on October
8, 2021 (App., infra, 117a). Two thirty day extensions
of time to file this Petition were granted, on January
4, 2022 and January 27, 2022, respectively. This Court
has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
U.S. Const. amend. X provides that:
The powers not delegated to the United States by
the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or
to the people.
2
STATEMENT OF THE CASE
A. Introduction
The Utah Supreme Court has not yet determined
whether, in Utah, a plea of guilty to capital murder has
different notice requirements dependent on whether
the state is pursuing principal or accomplice liability.
In this case, the Utah federal district court that regularly interprets Utah state law and the Tenth Circuit
Court of Appeals disagreed on what, under Utah law,
constitutes adequate notice to properly inform a plea
bargaining defendant that they are pleading guilty to
accomplice liability. While “[t]his Court rarely reviews
a construction of state law . . . this case presents the
rare situation in which [the Court] cannot rely on the
construction and findings below.” Virginia v. Am.
Booksellers Ass'n, Inc., 484 U.S. 383, 395 (1988).
Whereas this Court has stated that it will normally defer to lower courts on state-law issues because “district
courts and courts of appeals are better schooled in and
more able to interpret the laws of their respective
States,” here the lower courts are split. Brockett v.
Spokane Arcades, Inc., 472 U.S. 491, 500 (1985).
After substantial briefing on the topic, the federal
court most familiar with Utah state law, the Utah District Court, determined that Mr. Taylor “did not have
notice [of the elements of] accomplice liability” when
he entered his plea. App., infra, 114a. Relying specifically on the statement from the Utah Supreme Court
that “[c]harging an individual as a principal, standing
alone, does not provide adequate notice that the State
is actually pursuing an accomplice liability theory”
(App., infra, 112a, emphasis in original), the district
court found that, “[i]n D.B., the Utah Supreme Court
rejected an argument very similar to the one the State
makes now.” App., infra, 111a (citing D.B. v. State,
289 P.3d 459, 471 (Utah 2012)). The Tenth Circuit
3
panel, which included no Utah judges, curiously chose
to rely on State v. Gonzales, 56 P.3d 969 (Utah Ct. App.
2002), a lower court of appeals decision that preceded
D.B. and held differently. App., infra, 25a–28a.
Utah state law is clearly ambiguous on the notice requirement in a plea context; two federal courts examining the issue disagreed on its interpretation. Mr.
Taylor therefore urges this Court to find that, where
such ambiguity in state law exists and the State’s
highest court has not addressed the issue directly, a
federal appeals court should certify the question to the
highest court of the state rather than craft its own interpretation. Such a practice is favored by the Tenth
Amendment, as it prevents federal actors from usurping powers classically retained by the states. In this
capital case, this question of state law is a matter of
life and death. Moreover, heightened reliability is necessary to avoid a scenario where Utah later clarifies
its law in Mr. Taylor’s favor, after his execution.
The principles of comity and federalism found in the
Tenth Amendment require that the Utah Supreme
Court decide the fate of its citizen—the only person believed to have ever gone to death row in Utah for accomplice liability.1
B. Factual Background
In the winter of 1990, Mr. Taylor and his co-defendant Edward Deli broke into an empty mountain cabin
owned by the Tiede family. The next day Kaye Tiede,
her mother Beth Potts, and Kaye’s adult daughter Linae Tiede arrived at the cabin. Mr. Taylor, who
1 Mr. Taylor continues to contend that he did not plead guilty
to accomplice liability, but the Tenth Circuit’s opinion nonetheless rests on the conclusion that he in fact did plead guilty to accomplice liability.
4
possessed a .38 revolver, shot Kaye Tiede with a round
of non-lethal birdshot. Mr. Deli fired several shots at
Kaye Tiede and Beth Potts from a .44 magnum revolver. Both women died of multiple gunshot wounds.
Shortly afterwards, Kaye Tiede’s husband, Rolf Tiede,
arrived with his daughter Tricia. Mr. Taylor shot Rolf
Tiede with two non-lethal rounds of birdshot and the
men kidnapped Linae and Tricia and fled. They were
arrested minutes after leaving the cabin and charged
with first degree murder. Neither Linae nor Tricia
were physically harmed.
In 1991, after being misinformed that .38 bullets
killed the women, Mr. Taylor pled guilty to two
charges of capital murder for causing the deaths of Ms.
Tiede and Ms. Potts. App., infra, 56a. He was subsequently sentenced to death by a jury in Utah state
court. App., infra, 57a. He is currently incarcerated
at the Utah State Prison and is awaiting execution.
Mr. Deli, on the other hand, went to trial on the same
primary counts that Mr. Taylor was charged with.
App., infra, 56a. The jury was instructed on both principal and accomplice liability and convicted Mr. Deli of
the second degree murders of both women. He is currently serving a “natural life” sentence, which means
he is parole eligible.
When Mr. Taylor was charged, the pertinent elements of first degree murder in Utah were as follows:
(1) Criminal homicide constitutes murder in the
first degree if the actor intentionally or knowingly
causes the death of another under any of the following circumstances:
...
(b) The homicide was committed incident to one
act, scheme, course of conduct, or criminal episode
5
during which two or more persons are killed.
...
(d) The homicide was committed while the actor
was engaged in the commission of, or an attempt
to commit . . . aggravated burglary, [or] burglary.
Utah Code Ann. § 76-5-202(1)(b), (d) (1990).
The Utah Code provided that accomplice liability
may pertain to “[e]very person, acting with the mental
state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense[.]” Utah Code Ann. § 76-2-202 (1990).
The state, however, did not charge Mr. Taylor with
accomplice liability. Neither the Information nor the
plea agreement specified the liability with which Mr.
Taylor was charged. App., infra, 28a. Critically, Mr.
Taylor was not given notice of the elements necessary
for accomplice liability and did not plead to them.
In 2007, after completing his direct appeal and postconviction collateral appeal in the state courts, Mr.
Taylor petitioned the United States District Court in
Utah, which ultimately granted habeas relief and vacated his conviction, but subsequently stayed the order
pending appeal. The district court based its decision
on procedurally defaulted portions of Mr. Taylor’s
claim of ineffective assistance of trial counsel for failure to investigate, which rendered the plea constitutionally inadequate.
Seeking to access procedurally defaulted claims, Mr.
Taylor had argued that he is actually innocent of the
two capital murders as a principal because ballistics
and forensic evidence proved the fatal shots were most
likely fired from Mr. Deli’s .44 revolver. See App.,
6
infra, 18a (“[T]he district court found that Mr. Deli had
been in possession of the .44 magnum revolver
throughout the shootings. And the district court further concluded it was likely the bullets that killed
Kaye and Beth were fired from that gun.” (footnote
omitted)). In opposition, the State argued that, because Mr. Taylor would nonetheless be guilty under an
accomplice liability theory, he is not actually innocent
of capital murder. App., infra, 20a. The district court
found the State’s argument unavailing because, in
Utah, the crime of being “an accomplice to murder . . .
is a different crime with different elements” than being
a principal to murder. App., infra, 55a–56a.
In 2018, the district court held an evidentiary hearing that focused on determining which co-defendants’
bullets actually caused the fatal wounds. After substantial discovery, including several depositions, and
a three-day evidentiary hearing with expert testimony
from two medical examiners and two ballistics experts,
as well as testimony from co-defendant Deli, the district court concluded “that no reasonable, properly instructed juror, viewing the record, would have concluded beyond a reasonable doubt that Mr. Taylor fired
the fatal shots that caused the deaths of Beth Potts
and Kaye Tiede.” App., infra, 67a. The Warden did
not challenge that finding on appeal. Having accessed
the actual innocence gateway afforded by Schlup v.
Delo, 513 U.S. 298 (1995), the district court moved beyond the procedural default of Mr. Taylor’s claim of ineffective assistance of counsel and addressed the merits. App., infra, 67a. Finding that Mr. Taylor’s counsel
was ineffective in failing to investigate the case and
present informed advice to Mr. Taylor, the court subsequently vacated Mr. Taylor’s sentence on the merits
7
of his ineffective assistance of counsel claim. App., infra, 89a.2
The State appealed to the Tenth Circuit, which reversed the district court’s grant of relief and reinstated
Mr. Taylor’s conviction. App., infra, 39a. In doing so,
the court did not address the claim of ineffective assistance of counsel and assumed arguendo that Mr. Taylor was innocent of murder as a principal. App., infra,
36a. The circuit court relied on a state appellate court
ruling in holding that accomplice liability “is not a separate crime that needs to be charged separately.”
App., infra, 31a (citing Gonzales, 56 P.3d at 972).
Mr. Taylor petitioned the Tenth Circuit for rehearing and en banc consideration of the case in light of a
subsequent Utah Supreme Court case that clarified
different elements for principal and accomplice liability. App., infra, 119a–142a. The petition for rehearing
was denied. App., infra, 117a.
REASON FOR GRANTING THE PETITION
THE TENTH CIRCUIT RULED ON AN AMBIGUOUS QUESTION OF UTAH SUBSTANTIVE
CRIMINAL LAW INSTEAD OF CERTIFYING
THE QUESTION TO UTAH’S HIGHEST COURT,
VIOLATING BEDROCK CONSTITUTIONAL
PRINCIPLES OF FEDERALISM AND COMITY
The Tenth Circuit is bound by the state courts’ interpretation of the state’s laws. Chapman v. LeMaster,
302 F.3d 1189, 1196 (10th Cir. 2002) (“On habeas review, however, the New Mexico courts’ interpretation
of the state felony murder statute is a matter of state
2 Mr. Taylor’s counsel, based on his conduct in the penalty
phase, was subsequently suspended from the practice of law by
the Utah Supreme Court for three years and never practiced law
again.
8
law binding on this court. . . . This is a determination
of state law over which this court has no power to question.”). This Court has repeatedly held that federal
courts are bound to the interpretations made by state
courts. “Under our federal system, the ‘States possess
primary authority for defining and enforcing the criminal law.’” United States v. Lopez, 514 U.S. 549, 561
n.3, (1995) (quoting Brecht v. Abrahamson, 507 U.S.
619, 635 (1993)). It is long standing law that “[o]ur
national government is one of delegated powers alone.
Under our federal system the administration of criminal justice rests with the States except as Congress,
acting within the scope of those delegated powers, has
created offenses against the United States.” Screws v.
United States, 325 U.S. 91, 109 (1945) (plurality opinion). As this Court has noted, the Constitution “‘leaves
to the several States a residuary and inviolable sovereignty’ . . . reserved explicitly to the States by the
Tenth Amendment.” New York v. United States, 505
U.S. 144, 188 (1992) (quoting The Federalist No. 39, p.
245 (C. Rossiter ed. 1961)).
A federal court only ever engages in the task of analysis itself if a state’s highest court has not spoken to
an issue—and even then, the task is not to interpret
the state statute itself, but to predict how the state’s
highest court would interpret it. See Jordan v. Maxim
Healthcare Servs., Inc., 950 F.3d 724, 730–731 (10th
Cir. 2020); Mason v. American Emery Wheel Works,
241 F.2d 906, 909–910 (1st Cir. 1957) (predicting, and
deciding accordingly, that the Supreme Court of Mississippi would overrule a doctrine it had established
decades prior given subsequent decisions and dicta).
The importance of this deference to state courts is
obvious, but it bears repeating in this case: States are
“laboratories for experimentation.” Fisher v. Univ. of
Tex., 136 S. Ct. 2198, 2214 (2016) (citation omitted).
9
“Deference to state lawmaking allows local policies
more sensitive to the diverse needs of a heterogeneous
society, permits innovation and experimentation, enables greater citizen involvement in democratic processes, and makes government more responsive by
putting the States in competition for a mobile citizenry.” Ariz. State Legis. v. Ariz. Indep. Redistricting
Comm’n, 576 U.S. 787, 817 (2015) (cleaned up) (citing
Bond v. United States, 564 U.S. 211, 221 (2011)); see
also Tenn. Wine & Spirits Retailers Ass’n v. Thomas,
139 S. Ct. 2449, 2484 (2019) (“State governments were
supposed to serve as ‘laborator[ies]’ of democracy”) (alteration in original) (Gorsuch, J., dissenting) (quoting
New State Ice Co. v. Liebmann, 285 U.S. 262, 311
(1932) (Brandeis, J., dissenting); New State Ice Co.,
285 U.S. at 311 (Brandeis, J., dissenting) (“[i]t is one
of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve
as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”);
Lopez, 514 U.S. at 581 (Kennedy, J., concurring) (“In
this circumstance, the theory and utility of our federalism are revealed, for the States may perform their
role as laboratories for experimentation to devise various solutions where the best solution is far from
clear.”).
Accomplice liability is a different path to liability for
the same crime that can have a different set of acts
constituting the crime and an additional mens rea. Indeed, how to treat notice and accomplice liability in
pleas may be “far from clear,” id., but it is critically
important that each state be permitted to decide for
itself in order fulfill the Tenth Amendment’s promise
of state sovereignty. Compare, e.g., State v. Phillips,
317 P.3d 236, 240–241 (Or. 2013) (en banc) (holding
that, where the state seeks to hold a defendant liable
10
either as principal or aider and abettor, and an appropriate instruction is requested, jurors must be instructed that they must concur on each legislatively
defined element necessary to find the defendant liable
under one theory or the other) with People v. Jenkins,
997 P.2d 1044, 1129–1130 (Cal. 2000) (holding that jurors need not agree on whether the defendant is guilty
under an accomplice liability or principal liability theory, and an accusatory pleading charging a defendant
with murder does not need to specify the theory of
murder on which the state will rely).
The Utah Supreme Court has twice touched upon
the issues of principal versus accomplice liability notice, both times in a trial context. See D.B., 289 P.3d
at 465 and State v. Eyre, 500 P.3d 776, 782 (Utah
2021).3 Utah’s law is ambiguous in that the state’s
highest court has not yet clarified its application in a
plea context. The Tenth Circuit elected to rely on a
2002 lower Utah Court of Appeals case to resolve Mr.
Taylor’s appeal. The question is whether the Tenth
Circuit was correct in using its own analysis of Utah
state law, based on a state lower court opinion predating relevant Utah Supreme Court decisions, to resolve
a critical issue of substantive state law, rather than
asking the Utah Supreme Court to resolve any lingering ambiguity.
The two federal courts to have visited the issue, the
district court of Utah and the Tenth Circuit Court of
3 Eyre was issued on August 12, 2021, thirteen days after the
Tenth Circuit’s opinion issued in this case. In Eyre, the Court
indirectly addressed notice through holding that the trial jury instructions were erroneous. Mr. Taylor unsuccessfully sought rehearing based on what he contended was confirmation from the
Utah Supreme Court of his position regarding Utah state law requirements. (See App., infra, 119a–142a). Rehearing was denied. (See App., infra, 117a).
11
Appeals, split on their analysis. The district court, the
court that most frequently addresses Utah state law,
conducted its analysis based primarily on Utah Supreme Court precedent; the Tenth Circuit did not. The
district court found that, in Utah, a defendant entering
a plea as an accomplice must be separately charged or
receive notice he is pleading as an accomplice. (App.,
infra, 110a–114a). Because the state failed to do either in Mr. Taylor’s case, the district court granted habeas relief, vacating his death sentence. App., infra,
89a. The Tenth Circuit reversed, finding that accomplice and principal liabilities form one and the same
crime, which need not be separately or specifically
charged or noticed. App., infra, 2a–39a. That was despite the fact that accomplice liability in Utah requires
elements that principal liability does not. Eyre, issued
less than two weeks after the Tenth Circuit’s opinion
in this case, affirms the district court’s analysis of
Utah state law.
The problem here is not that the Tenth Circuit interpreted state law in a way that was contrary to Mr. Taylor’s desired result. The problem is that the Tenth Circuit substituted its opinion for that of the Utah Supreme Court on an issue purely reserved to the state
to determine. “[S]tate courts provide the authoritative
adjudication of questions of state law.” Brockett, 472
U.S. at 508 (O’Connor, J., concurring). The correct
path here would have been to certify the specific question to the Utah Supreme Court in light of the context
of a guilty plea. The Tenth Circuit gave short shrift to
D.B., in which the Utah Supreme Court recognized
that different conduct distinguished accomplice liability from principal liability. See D.B., 289 P.3d at 465
(accomplice liability in Utah “requires conduct different from direct commission of an offense before a defendant incurs accomplice liability.”). Instead, the
12
Tenth Circuit relied on an older Utah appeals court decision to conclude that “accomplice liability is not a
separate crime with different elements.” App., infra,
25a (citing Gonzales, 56 P.3d at 972).4 The distinctions
between principal and accomplice liability in Utah
were explicated and affirmed in Eyre, issued right after the Tenth Circuit’s ruling against Mr. Taylor. Nevertheless, the Tenth Circuit denied Mr. Taylor’s subsequent petition for rehearing in which he requested
that the court certify the question to the Utah Supreme Court. App., infra, 117a, 126a, 128a, 138a.
Eyre strongly indicates that Utah law requires separate notice within the context of guilty pleas due to the
different elements involved.
As anyone who has sat through the first day of an
introductory course on criminal law knows, mens
rea (or mental state) is typically a requisite of
criminality. See, e.g., State v. Bird, [345 P.3d
1141, 1145 (Utah 2015)] (“A mens rea element is
an essential element of [an] offense.” (alteration
in original) (citation omitted) (internal quotation
marks omitted)); State v. Barela, [349 P.3d 676,
681 (Utah 2015)] (“[O]ur criminal code requires
proof of mens rea for each element of a non-strict
liability crime.”) . . . . But while most offenses require a showing of only one culpable mental state,
accomplice liability requires at least two.
Since the issuance of D.B., Gonzales has never been cited by
the Utah Supreme Court or the Utah Court of Appeals for the
premise that the Tenth Circuit relied on it for–that because accomplice liability is not a separate charge, it does not require notice. Any doubt as to that fact is negated by Eyre, as it explains
the additional separate elements that accomplice liability incurs
and makes it clear that the portion of Gonzales that the Tenth
Circuit found important did not survive D.B.
4
13
Eyre, 500 P.3d at 781. See also State v. Hummel, 393
P.3d 314, 321 (Utah 2017) (“There is no such thing as
an omnibus ‘crime’ in Utah. Our crimes are set out
distinctly in our law, with different elements and distinct punishments for each offense.”).
Multiple Utah Supreme Court decisions suggest
Utah would take a position contrary to the one the
Tenth Circuit reached. First, in D.B., the Utah Supreme Court held that accomplice liability requires
specific notice: “Charging an individual as a principal,
standing alone, does not provide adequate notice that
the State is actually pursuing an accomplice liability
theory.” D.B., 289 P.3d at 471. Second, in Eyre the
Utah Supreme Court confirmed that accomplice liability and principal liability diverge on the mens rea requirement. Accomplice liability requires “the mens rea
requirements of both the underlying crime and the accomplice liability statute,” and the failure to instruct
the jury as to this is reversible error. Eyre, 500 P.3d
at 782 (emphasis in original). Even if Utah takes a
path different from other states, that does not mean
deference to Utah law is any less appropriate. This
Court has a significant interest in seeing that Utah’s
unique position is respected, to preserve the state autonomy and comity upon which our federal system is
grounded.
The two federal courts to address the issue did not
agree on what Utah state law requires. The district
court below held that, under Utah law, Mr. Taylor was
not charged with accomplice liability and did not plead
guilty to accomplice liability. App., infra, 66a (discussing the court’s decision in the Jan. 17, 2017, Order &
Mem. Decision Granting Evidentiary Hr’g at 1, 20–24
(App., infra, 110a–114a) (which in turn concluded that
Mr. Taylor “did not have notice of accomplice liability”)
(App., infra, 114a)). In contrast, the Tenth Circuit
14
Court of Appeals held that Utah law does not require
separate notice of accomplice liability, stating it “is not
a separate crime with different elements” and relying
on a Utah appellate court decision from 2002. App.,
infra, 25a.
Where federal courts have faced similar difficulties
interpreting state laws, they certify.
See, e.g.,
McKesson v. Doe, 141 S. Ct. 48, 50 (2020) (“The dispute
thus could be ‘greatly simplifie[d]’ by guidance from
the Louisiana Supreme Court on the meaning of Louisiana law.”) (alteration in original). “In furtherance of
‘the interests of comity and federalism’ that certification protects . . . the Utah courts should have the opportunity in the first instance to decide” whether Petitioner was properly on notice of his potential liability
as an accomplice. Garza v. Burnett, 672 F.3d 1217,
1221–1222 (10th Cir. 2012). Utah provides for certification of questions of law, like many of its sister states.
Utah Rules of App. Proc. 41(a). And the need is heightened where, as here, there are “novel issues of state
law peculiarly calling for the exercise of judgment by
the state courts.” See McKesson, 141 S. Ct. at 51.
While the Utah Supreme Court’s decisions in D.B.
and Eyre indicate that the Tenth Circuit was simply
wrong in its interpretation of Utah state law, Mr. Taylor is not seeking error correction. The larger issue
here is federal courts’ respect for state sovereignty.
Out of respect for the State of Utah’s right to have its
laws differ from other states’ laws, this Court should
remand with instruction to certify to the Utah Supreme Court the question of whether, under Utah law,
a defendant charged with murder in the first degree
must be provided notice of the required elements of accomplice liability and plead guilty to those elements
before he can be sentenced for first degree murder
through accomplice liability.
15
Specifically, the certified question should identify
the need for clarification by certifying a question such
as:
Under Utah law, if a defendant who is charged by
Information with Criminal Homicide, Murder in
the First Degree, but who is not specifically
charged by Information as an accomplice, enters
a plea of guilty to the Information charge of Criminal Homicide, must he first receive actual notice:
1) that the state is pursuing a conviction based on
accomplice liability, and 2) of the additional elements required before he can be convicted and
sentenced as an accomplice?
This question goes to the heart of a defendant’s right
to have “real notice of the true nature of the charge
against” them, which is “the first and most universally
recognized requirement of due process.” Smith v.
O’Grady, 312 U.S. 329, 334 (1941). If the Utah Supreme Court answers the question affirmatively, there
can be no doubt that the execution of Mr. Taylor would
be unconstitutional and a manifest injustice. The federal courts should not simply guess under such circumstances.
This Court has recognized that “[i]t would be manifestly inappropriate to certify a question in a case
where, as here, there is no uncertain question of state
law whose resolution might affect the pending federal
claim.” Houston v. Hill, 482 U.S. 451, 471 (1987). The
converse must also be true: it is appropriate for this
Court to certify a question in a case where, as here,
there is an uncertain question of state law whose resolution might affect the pending federal claim. Resolution of this uncertain question of state law by the
Utah Supreme Court would resolve the claim before
the federal courts.
Moreover, it will determine
whether Mr. Taylor, the only person believed ever to
16
have gone to death row in Utah for accomplice liability,5 is executed without the state court having opined
on the question that two federal courts have split in
determining.
CONCLUSION
For the foregoing reasons, the Court should grant
the petition for a writ of certiorari, or, in the alternative, the Court should summarily grant, vacate, and
remand with an instruction to certify the question to
the Utah Supreme Court or to reconsider the decision
as this Court sees fit.
Respectfully submitted,
JEFFREY T. GREEN
SIDLEY AUSTIN LLP
1501 K Street NW
Washington, DC 20005
(202) 736-8000
BRIAN M. POMERANTZ*
LAW OFFICES OF BRIAN M.
POMERANTZ
P.O. Box 853
Carrboro, NC 27510
(323) 630-0049
Habeas@protonmail.com
XIAO WANG
NORTHWESTERN SUPREME
COURT PRACTICUM
375 East Chicago Avenue
Chicago, IL 60611
(312) 503-1486
KENNETH F. MURRAY
LAW OFFICE OF KENNETH
F. MURRAY
316 East Mitchell Drive
Phoenix, AZ 85012
(602) 684-7391
Counsel for Petitioner
March 7, 2022
5
See footnote 1, supra.
*Counsel of Record
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.