Opposition Brief — Von Lester Taylor, Petitioner v. Robert Powell, Warden

Supreme Court briefMay 9, 2022

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CAPITAL CASE

No. 21-7329

IN THE

Supreme Court of the United States

_________________________________________

VON LESTER TAYLOR, Petitioner,

vs.

ROBERT POWELL, WARDEN, Respondent.

__________________________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

__________________________________________

RESPONDENT’S APPENDIX

__________________________________________

SEAN D. REYES

Utah Attorney General

MELISSA HOLYOAK

Utah Solicitor General

Counsel of Record

THOMAS B. BRUNKER

Deputy Solicitor General,

Criminal Appeals

ANDREW F. PETERSON

Assistant Solicitor General

Utah Attorney General’s Office

160 East 300 South, 5th Floor

Salt Lake City, Utah 84114

Telephone: (801) 538-9600

Facsimile: (801) 538-1121

melissaholyoak@agutah.gov

Counsel for Respondent

RESPONDENT’S APPENDIX

TABLE OF CONTENTS

Appellee’s Response Brief, United States Court of Appeals for

the Tenth Circuit, January 4, 2021 .................................................................. 1a

Petitioner’s Supplemental Reply Brief on Accomplice Liability Issues, United

States District Court for the District of Utah, September 21, 2016 ............. 73a

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Case No. 20-4039

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

VON TAYLOR,

Petitioner-Appellee,

vs.

ROBERT POWELL, Warden

Respondent-Appellant.

APPELLEE’S RESPONSE BRIEF

DEATH PENALTY CASE

On Appeal from Order of the United States District Court

for the District of Utah

Docket No. 2:07-CV-194 (TC)

The Honorable Tena Campbell, Judge

KENNETH F. MURRAY

OH Bar #2519; AZ Bar #33090

316 East Mitchell Drive

Phoenix, AZ 85012

Telephone: (602) 684-7391

kfmurray2013@gmail.com

BRIAN M. POMERANTZ

NY Bar #4141024; CA Bar

#214264

P.O. Box 853

Carrboro, NC 27510

Telephone: (323) 630-0049

Habeas@protonmail.com

Attorneys for Petitioner-Appellee

VON TAYLOR

ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS

page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . ix

GLOSSARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

The District Court Correctly Concluded That Taylor

Pled Guilty As A Principal To Causing The Deaths

Of Two Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Taylor Pled Guilty As A Principal Only . . . . . . . . . . . 10

The Warden’s Assertion That Taylor Pled

Guilty To Accomplice Liability Has No

Basis In Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

(a)

The Information . . . . . . . . . . . . . . . . . . . . 17

(b)

Statement Of Probable Cause . . . . . . . . . 19

(c)

Warrant Of Arrest . . . . . . . . . . . . . . . . . . 19

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TABLE OF CONTENTS

page

II.

(d)

Statement Of Defendant. . . . . . . . . . . . . . 20

(e)

Plea Hearing . . . . . . . . . . . . . . . . . . . . . . . 21

Courts That Have Reviewed His Plea Confirm

That Taylor Pled Guilty As A Principal . . . . . . 22

Utah State Law Forecloses The Warden’s

Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

The Warden’s Attempt To Rewrite Schlup Is

Equally Without Merit . . . . . . . . . . . . . . . . . . . . . . . . 31

Schlup And Its Progeny Make Clear That

It Is Backward-Looking . . . . . . . . . . . . . . . . . . . 31

The Warden’s Effort To Impose A

Standard Of Proof Beyond That Required

By Schlup Is Without Merit . . . . . . . . . . . . . . . 36

The District Court Correctly Concluded That

Because Taylor’s Trial Counsel Provided Ineffective

Assistance, Taylor Did Not Make A Knowing And

Intelligent Decision To Plead Guilty . . . . . . . . . . . . . . . . . . 42

As A Result Of Trial Counsel’s Constitutionally

Deficient Failure To Investigate, He Was

Precluded From Providing Taylor With

Meaningful and Informed Advice, Resulting

In Taylor’s Unconstitutional Guilty Plea To

Capital Murder As A Principal . . . . . . . . . . . . . . . . . . 45

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TABLE OF CONTENTS

page

Trial Counsel’s Failure To Conduct An

Investigation Of The Prosecution’s Case,

And To Meaningfully Advise Taylor

Regarding His Options, Had A Prejudicial

Impact On The Plea Process. . . . . . . . . . . . . . . . . . . . 54

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 58

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(B)(i) . . . . . 60

CERTIFICATE OF DIGITAL SUBMISSION . . . . . . . . . . . . . . . . . . . . 61

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

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TABLE OF AUTHORITIES

FEDERAL CASES

page(s)

Amrine v. Bowersox, 128 F.3d 1222 (8th Cir. 1997) . . . . . . . . . . . . . . . 37

Bobby v. Van Hook, 558 U.S. 4 (2009) . . . . . . . . . . . . . . . . . . . . . . . 47, 48

Bousley v. United States, 523 U.S. 614 (1998). . . . . . . . . . . 30, 38, 41, 42

Brady v. United States, 397 U.S. 742 (1970) . . . . . . . . . . . . . . . . . . . . . 52

Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007) . . . . . . . . . . . . . . . 9

Carter v. United States, 173 F.2d 684 (10th Cir. 1949). . . . . . . . . . . . . 10

Cole v. Arkansas, 333 U.S. 196 (1948) . . . . . . . . . . . . . . . . . . . . . . . 12, 15

Crisp v. Duckworth, 743 F.2d 580 (7th Cir. 1984). . . . . . . . . . . . . . . . . 50

Fisher v. Gibson, 282 F.3d 1283 (10th Cir. 2002) . . . . . . . . . . . . . . . . . 46

Harmon v. Sharp, 936 F.3d 1044 (10th Cir. 2019) . . . . . . . . . . . . . . . . 47

Harries v. Bell, 417 F.3d 631 (6th Cir. 2005). . . . . . . . . . . . . . . . . . 50, 51

Herrera v. Collins, 506 U.S. 390 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . 37

Hill v. Lockhart, 474 U.S. 52 (1985) . . . . . . . . . . . . 45, 46, 52, 54, 55, 57

Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012) . . . . . . . . . . . . . . . 47

House v. Bell, 547 U.S. 518 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

In re Davis, 565 F.3d 810 (11th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . 37

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TABLE OF AUTHORITIES

FEDERAL CASES

page(s)

Jones v. Delo, 56 F.3d 878 (8th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . 38

Lafler v. Cooper, 566 U.S. 156 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Lee v. United States, 137 S.Ct. 1958 (2017). . . . . . . . . . . . . . . . 45, 57, 58

McMann v. Richardson, 397 U.S. 759 (1970) . . . . . . . . . . . . . . . . . . . . 46

McQuiggin v. Perkins, 569 U.S. 383 (2013) . . . . . . . . . . . . . . . . . . . . . . 33

Miller v. Champion, 262 F.3d 1066 (10th Cir. 2001) . . . . . . . . . . . 55, 56

Murray v. Carrier, 477 U.S. 478 (1986) . . . . . . . . . . . . . . . . . . . 32, 40, 41

Nguyen v. Reynolds, 131 F.3d 1340 (10th Cir. 1997) . . . . . . . . . . . . . . 46

North Carolina v. Alford, 400 U.S. 25 (1970) . . . . . . . . . . . . . . . . . . . . 52

Roberts v. Printup, 595 F.3d 1181 (10th Cir. 2010) . . . . . . . . . . . . . . . . 6

Roe v. Flores-Ortega, 528 U.S. 470 (2000) . . . . . . . . . . . . . . . . . . . . . . . 57

Rompilla v. Beard, 545 U.S. 374 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 47

Rosen v. United States, 161 U.S. 29 (1896) . . . . . . . . . . . . . . . . . . . . . . 10

Sawyer v. Whitley, 505 U.S. 333 (1992) . . . . . . . . . . . . . . . . . . . . . . 32, 40

Schlup v. Delo, 513 U.S. 298 (1995). . . . . . 2, 3, 4, 5, 6, 8, 31, 32, 33, 34,

36, 37, 38, 40, 41, 42, 44, 46, 56

Smith v. O’Grady, 312 U.S. 329 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . 30

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TABLE OF AUTHORITIES

FEDERAL CASES

page(s)

Strickland v. Washington, 466 U.S. 668 (1984). . . . . 1, 45, 46, 47, 51, 56

Tollett v. Henderson, 411 U.S. 258 (1973) . . . . . . . . . . . . . . . . . . . . . . . 46

United States v. Crummer, 151 F.2d 958 (10th Cir. 1945) . . . . . . . 10, 11

United States v. Davies, 394 F.3d 182 (3d Cir. 2005) . . . . . . . . . . . 41, 42

United States v. Fisher, 805 F.3d 982 (10th Cir. 2015) . . . . . . . . . . . . . . 9

United States v. Gray, 878 F.2d 702 (3rd Cir. 1989) . . . . . . . . . . . . . . . 50

United States v. Ruiz, 536 U.S. 622 (2002) . . . . . . . . . . . . . . . . . . . . . . 52

United States v. Sanchez-Leon, 764 F.3d 1248 (10th Cir. 2014). . . . . . . 6

Von Atkinson v. Smith, 575 F.2d 819 (10th Cir. 1978) . . . . . . . . . . . . . 15

Wiggins v. Smith, 539 U.S. 510 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . 47

Williams v. Taylor, 529 U.S. 362 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 47

STATE CASES

D.B. v. State, 289 P.3d 459 (Utah 2012) . . . . . . 22, 24, 25, 26, 27, 30, 31

Salazar v. Utah State Prison, 852 P.2d 988 (Utah 1993). . . . . . . . 20, 21

State v. Gonzales, 56 P.3d 969 (Utah Ct. App. 2002) . . . . . . . . 25, 29, 30

State v. Holland, 876 P.2d 357 (Utah 1994) . . . . . . . . . . . . . . . . . . . . . 51

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TABLE OF AUTHORITIES

STATE CASES

page(s)

State v. Lehi, 73 P.3d 985 (Utah Ct. App. 2003). . . . . . . . . . . . . . . . . . 21

State v. Loveless, 232 P.3d 510 (Utah 2010) . . . . . . . . . . . . . . . . . . 28, 29

State v. Mabey, 2008 WL 4411688 (Utah Dist.Ct.) . . . . . . . . . . . . . . . 21

State v. Ott, 2008 WL 8772419 (Utah) . . . . . . . . . . . . . . . . . . . . . . . . . 21

State v. Petry, 273 S.E. 2d (W. Va. 1980) . . . . . . . . . . . . . . . . . . . . . . . 39

State v. Redd, 2007 WL 5253421 (Utah Dist.Ct.). . . . . . . . . . . . . . . . . 21

State v. Seumanu, 443 P.3d 1277 (Utah Ct. App. 2019) . . . . . . . . . . . . 22

State v. Smathers, 602 P.2d 708 (Utah 1979) . . . . . . . . . . . . . . . . . . . . 11

State v. Snyder, 932 P.2d 120 (Utah Ct. App. 1997) . . . . . . . . . . . . . . . 11

State v. Steele, 245 P. 332, 333-34 (Utah 1926) . . . . . . . . . . . . . . . . . . . 18

State v. Swapp, 808 P.2d 115 (Utah Ct. App. 1991) . . . . . . . . . . . . . . . 26

State v. Trujillo-Martinez, 814 P.2d 596 (Utah Ct. App. 1991) . . . . . . 21

State v. Watson, 2016 WL 7744969 (Wash.App. Div. 2) . . . . . . . . . . . . 21

Taylor v. State, 156 P.3d 739 (Utah 2007). . . . . . . . . . . . . . . . . . . . . 9, 50

Taylor v. State, 270 P.3d 471 (Utah 2012). . . . . . . . . . . . . . . . . . . . . . . 23

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TABLE OF AUTHORITIES

FEDERAL STATUTES

page(s)

U.S. Const., Amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

STATE STATUTES

Utah Code § 76-1-402(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36

Utah Code § 76-2-202 . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14, 19, 22, 27

Utah Code § 76-5-202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 22

Utah R. Crim. Proc. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Utah R. Crim. Proc. 11(e)(4)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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STATEMENT OF RELATED CASES

There are no prior or related appeals in this Court.

GLOSSARY

References to the Brief of Appellant are abbreviated as “AOB,” followed

by the page number of the brief itself, rather than the ECF page number.

References to the Appellant’s Appendix are designated by the Roman

numeral volume number, the abbreviation “Appx.,” and then the bates

number applied by Appellant in the lower right hand corner.

References to the Appellee’s Supplemental Appendix are designated by

the abbreviation “Supp.Appx.,” and then the bates number applied by

Appellee in the lower right hand corner. There is only one volume, thus

volume numbers are unnecessary.

References to the District Court record are abbreviated as “Dkt. No.,”

followed by the ECF number and then the page number.

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INTRODUCTION

After substantial discovery, including depositions, and a three-day

evidentiary hearing, the district court concluded “that no reasonable,

properly instructed juror, viewing the record, would have concluded

beyond a reasonable doubt that [Appellee Von] Taylor fired the fatal shots

that caused the deaths of Beth Potts and Kaye Tiede.” (XX Appx. 4907.)

Respondent Warden does not challenge the district court’s holding on

Taylor’s innocence. (AOB 16 n.5.)

Following briefing and argument on Claim Four of the Second

Amended Petition (“SAP”), that Taylor’s guilty plea is constitutionally

defective, the district court held that, “Mr. Taylor’s guilty plea was

unconstitutional and must be invalidated” because he “satisfied the

requirements of Strickland [v. Washington, 466 U.S. 668 (1984)]. . . .

establish[ing] that his attorney, Elliott Levine, provided him with

deficient representation falling well below the prevailing professional

norms.” (XX Appx. 5036.) The court further explained that,

Because Mr. Levine failed to conduct an

investigation, he did not have the information

necessary to provide competent advice. As a result,

Mr. Taylor did not make a knowing and intelligent

decision to plead guilty to two capital crimes. But

for Mr. Levine’s uninformed advice and

substandard representation, there is a reasonable

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probability that Mr. Taylor would not have pled

guilty and would have insisted on going to trial.

And, as demonstrated by the findings in the court’s

Actual Innocence Order, there is a reasonable

probability that the result of a guilt-phase trial

would have been different because no reasonable

juror would have voted to convict him on the

first-degree murder counts for which he was

charged.

Mr. Taylor was unquestionably

prejudiced by his attorney’s ineffective

representation.

(XX Appx. 5036-37.)

Now, having lost in the district court, and unable to credibly

challenge the district court’s finding of actual innocence, the Warden’s

appeal is a futile attempt to rewrite history. Instead of addressing the

district court’s finding regarding the charge to which Taylor actually pled

guilty–capital murder as a principal–the Warden manufactures a story

that Taylor knowingly pled guilty as an accomplice. Not only is this newly

invented position wholly disingenuous given the Warden’s own repeated

admissions before the district court that “the State did not pursue a

conviction based on accomplice liability” (XIX Appx. 4646), it is based on

material misrepresentations of the record. The Warden then relies on his

creation to argue that Taylor had notice, using a twisted interpretation of

Schlup v. Delo, 513 U.S. 298 (1995), that is as faulty as his misleading

recitation of purported “fact.”

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The district court properly found that under Schlup Taylor is

entitled to the innocence gateway because he pled guilty as a principal

and the evidence does not support a “reasonable, properly instructed

juror” concluding beyond a reasonable doubt that “Taylor fired the fatal

shots.” (XX Appx. 4907.) Accordingly, trial counsel’s failure to conduct an

investigation led to an unintelligent and unknowing plea.

STATEMENT OF THE ISSUES

Did the district court correctly conclude that Taylor pled

guilty as a principal to causing the deaths of the two victims

and not to accomplice liability?

Did the district court correctly conclude that because

Taylor’s trial counsel provided ineffective assistance, Taylor

did not make a knowing and intelligent decision to plead

guilty?

STATEMENT OF THE CASE

The Warden’s lengthy statement of facts details what happened at

Taylor’s trial over the course of several pages, but spends only three

paragraphs recounting the Schlup hearing that led to the district court’s

grant of relief. The Warden chose not to appeal the district court’s finding

of actual innocence, affirmatively stating that the court’s finding “doesn’t

matter for this appeal.” See AOB 16 n.5.

///

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The Warden’s Statement of the Case misrepresents Taylor’s

culpability.1 However, because the Warden has taken the position that

Taylor’s innocence does not matter, Taylor will not correct the record here.

The district court found that Taylor was not principally liable for the

murders, and the Warden has not challenged that conclusion.

The Warden also misrepresents Taylor’s involvement by incorrectly

stating that co-defendant Edward “Deli testified at his own trial that

Taylor did all of the shooting and that Deli shot no one. Deli testified that

Taylor began shooting out of the blue, and that he was surprised when

Taylor began shooting.” (AOB 11.) Whether Deli testified is not critical

to this Court’s inquiry, nonetheless, Taylor does not want to implicitly

confirm these false facts by foregoing the following corrections. First, the

Warden incorrectly stated, “[t]here are no transcripts from Deli’s trial.”

(Id. n.3.) Portions of the Reporter’s Transcript exist, as does the entirety

of the Clerk’s Transcript, including jury instructions, minutes, etc.

Second, the weight of the evidence overwhelmingly indicates that Deli did

For instance, the Warden spends more than a page discussing medical

examiner Schnittker’s autopsy findings, but never mentions that her

conclusions were successfully challenged in the Schlup hearing. In fact,

Dr. Schnittker later conceded that she had used unreliable methodology

and shifted the basis for some of her opinions. (XX Appx. 4878-79, 489394.)

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not testify. The Warden’s statement did not share any of the following:

(1) The Clerk’s Transcript from Deli’s case confirms that he never testified

at his trial (See Supp.Appx. 56-62); (2) Despite significant media coverage

of the trial, no article states Deli testified (XII Appx. 2672-2791);

(3) although the Warden obtained a “declaration from Taylor’s paralegal

who witnessed the trial” (AOB 11 n.3) recounting that Deli testified, the

Warden did not mention that she was an employee of the Attorney

General’s Office when the declaration was obtained (Supp.Appx. 117);

(4) the Warden had that paralegal on his witness list for the Schlup

hearing, for the “limited purpose” of saying “who testified and who did not

at trial” (Dkt. No. 385:7), but the Warden made no attempt to impeach

Deli’s sworn testimony at the Schlup hearing that he did not testify at his

trial, either by calling the paralegal or cross-examining Deli on the issue

(Dkt. No. 385:12-32); (5) Deli’s two attorneys signed sworn declarations

declaring that Deli did not testify at his trial. (Supp.Appx. 119-20); and

(6) Deli’s jury was given an instruction relating to his not having testified.

(Supp.Appx. 76.) In short, the overwhelming evidence establishes that

Deli did not testify notwithstanding the Warden’s assertion to the

contrary, but because it is not germane to this appeal, Taylor will not

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further belabor the issue.

STANDARD OF REVIEW

The parties agree that de novo review is appropriate as to the legal

conclusions. Factual findings underlying the district court’s ruling are

reviewed for clear error. United States v. Sanchez-Leon, 764 F.3d 1248,

1259 (10th Cir. 2014). Whether the district court correctly concluded that

Taylor pled guilty as a principal and not to accomplice liability is a mixed

question of law and fact. When a mixed question of law and fact is

presented, the standard of review turns on whether factual matters or

legal matters predominate. Roberts v. Printup, 595 F.3d 1181, 1186 (10th

Cir. 2010).

SUMMARY OF ARGUMENT

The Sixth Amendment requires that Taylor be “informed of the

nature and cause of the accusation” against him. Taylor was informed

that he was charged with capital murder as a principal. Taylor was not

charged with accomplice liability and he did not plead guilty to accomplice

liability. He was never informed that the State considered charging him

as an accomplice; indeed, every indication was that the prosecution saw

him as principally liable. Schlup does not permit the Warden to now

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claim, thirty years later, that the State could have imprisoned Taylor for

something else, so his innocence of the crime for which he was actually

charged is irrelevant.

Although it is clear from all of the charging documents that the

State did not charge both principal and accomplice liability, even if it had,

Taylor could only plead to one. And, in such a situation, Taylor would

have had the right to opt for which charge to plead to. The evidence is

equally clear that if there was an option, he chose principal liability.

Although this appeal is about a violation of Taylor’s federal

constitutional rights, the arguments presented necessitate consideration

of Utah state law to determine what constitutes reasonable notice in

Utah. The law in Utah leaves no doubt that Taylor was not sufficiently

notified of the State potentially proceeding on an accomplice liability

theory. The Warden contends that the prosecution “gave Taylor clear

notice of the State’s intent to prove his liability as an accomplice” at the

preliminary hearing (AOB 34), but that is a demonstrably false

representation of the record. The record is clear: the prosecution chose

not to articulate an accomplice liability theory either before or at the time

of the plea. The Warden’s wish that it had in the face of his loss before the

district court simply does not make it so.

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Believing that the evidence against him was overwhelming because

trial counsel failed to perform a reasonable investigation, Taylor pled

guilty as a principal to causing the deaths of two victims. Having now

been found not to have principal liability following the Schlup hearing

below, the Warden has rested his appeal on a faulty assumption that

Taylor also pled guilty as an accomplice. The Warden’s appeal never asks

this Court for a legal conclusion as to whether Taylor pled guilty to such

a charge because he assumes it to be a foregone conclusion. It cannot be

the clear fact that the Warden makes it out to be because he previously

admitted twice in the district court that Taylor never pled guilty as an

accomplice. (XIX Appx. 4646-47.)

With the facts of the plea so clearly supporting the district court’s

grant of relief, the Warden seeks to reinterpret Schlup to create a

“forward-looking” standard that is unsupported by Schlup or the cases

interpreting it. The Warden’s proposed interpretation is so distorting, it

is tantamount to asking this Court to overrule the Supreme Court.

The district court properly applied the Schlup gateway and then

correctly concluded that because trial counsel’s assistance was ineffective,

Taylor’s plea was not knowing and intelligent. Trial counsel failed to

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sufficiently investigate, foregoing the hiring of experts in ballistics and

pathology, and assuming that the State’s presentation of the evidence was

true and correct.2 Accordingly, trial counsel could not effectively advise

Taylor.

The Warden has not claimed that the district court erred in

determining that Taylor could be actually innocent of having been

principally responsible for fatally shooting the two victims. Because the

Warden has not addressed these and other issues in his opening brief,

they are waived and forfeited. See United States v. Fisher, 805 F.3d 982,

990 (10th Cir. 2015) (finding issue waived and forfeited due to inadequate

briefing); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)

(holding that this Court has routinely declined to consider arguments that

are not raised, or are inadequately presented, in an appellant’s opening

brief).

Reviewing the penalty phase, the Utah Supreme Court found that trial

counsel “belie[ved] that all experts were ‘hired guns’ and that it was

unethical to use them.” Taylor v. State, 156 P.3d 739, 755 (2007) (“Taylor

II”). That court termed this “an abdication of advocacy” rather than “a

reasonable strategic decision.” Id.

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ARGUMENT

The District Court Correctly Concluded That Taylor Pled

Guilty As A Principal To Causing The Deaths Of Two Victims

Taylor Pled Guilty As A Principal Only

The United States Constitution requires that Taylor be “informed of

the nature and cause of the accusation” against him. U.S. Const., Amend.

VI. This Court has explained that,

a defendant is informed of the nature and cause of

the accusation against him if the indictment

charges all of the essential elements of the offense

with sufficient completeness and clarity to apprise

him of the crime charged with such reasonable

certainty as will enable him to make his defense

and to plead the judgment of acquittal or conviction

in bar to a future prosecution for the same offense.

[citations omitted] Where a statute creating an

offense sets forth fully, directly, and expressly all of

the essential elements necessary to constitute the

crime intended to be punished, it is sufficient if the

indictment charges the offense in the words of the

statute.

United States v. Crummer, 151 F.2d 958, 962 (10th Cir. 1945) (emphasis

added) (collecting cases); accord Rosen v. United States, 161 U.S. 29, 34

(1896); see also Carter v. United States, 173 F.2d 684, 685 (10th Cir. 1949)

(“under [the Sixth Amendment], it is essential to the validity of an

indictment that it charge all of the essential elements of the offense with

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sufficient clearness and completeness to show a violation of law, to enable

the accused to know the nature and cause of the accusation.”).

The Sixth Amendment requirements closely track Utah Rule of

Criminal Procedure 4, which

specifies what an information must provide to a

defendant: “An . . . information shall charge the

offense for which the defendant is being prosecuted

by using the name given to the offense by common

law or by statute or by stating in concise terms the

definition of the offense sufficient to give the

defendant notice of the charge.” Utah R. Crim. P.

4(b). “What the defendant is entitled to is an

information which sufficiently informs him to

enable him to understand the charge against him

and to prepare a defense. If it fulfills that

requirement, it is sufficient.”

State v. Snyder, 932 P.2d 120, 127 (Utah Ct. App. 1997) (quoting State v.

Smathers, 602 P.2d 708, 710 (Utah 1979)).

Utah has a statute that “fully, directly, and expressly” contains “all

of the essential elements necessary to constitute” accomplice liability.

Crummer, 151 F.2d at 962. Specifically, Utah Criminal Code Title 76

defines “criminal responsibility for direct commission of offense or for

conduct of another” and sets forth the essential elements of accomplice

liability:

Every person, acting with the mental state

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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 shall be criminally liable as

a party for such conduct.

Utah Code § 76-2-202. Thus, in Utah, accomplice liability requires:

(1) mental intent; and (2) an overt act either “solicit[ing],” “request[ing],”

“command[ing],” “encourag[ing],” or “intentionally aid[ing]” another

person to engage in the conduct that constitutes an offense. This language

makes clear that accomplice liability requires proof of specific elements

separate from the associated principal offense.

The Warden contends that whether Taylor was guilty as a principal

or an accomplice is “inconsequential” and “immaterial” (AOB 3-4), but the

requirement that notice be constitutionally adequate can never be

inconsequential. Proper pre-plea notice has long been required.

No principle of procedural due process is more

clearly established than that notice of the specific

charge, and a chance to be heard in a trial of the

issues raised by that charge, if desired, are among

the constitutional rights of every accused in a

criminal proceeding in all courts, state or

federal. . . . It is as much a violation of due process

to send an accused to prison following conviction of

a charge on which he was never tried as it would be

to convict him upon a charge that was never made.

Cole v. Arkansas, 333 U.S. 196, 201 (1948).

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The Warden claims the prosecution “gave Taylor clear notice of the

State’s intent to prove his liability as an accomplice” at the preliminary

hearing (AOB 34), but that is patently untrue. The prosecutor cited the

accomplice liability statute at the preliminary hearing, not in connection

with Taylor, but to overcome Deli’s contention that the charges against

him should be dismissed. (III Appx. 545-46.) Specifically, Deli’s attorney

argued that the murder counts against Deli should be dismissed “on the

basis that the State has failed to present any evidence that Mr. Deli fired

any shots at the victims or knowingly and intentionally aided or abetted

Mr. Taylor in the murders, that he commanded, solicited or in any way

was an accomplice to the murders.” (Id. 539-40.) The record is clear that

the prosecutor was responding to that motion when he made the

accomplice liability arguments, which he ended by saying, “[u]nder those

circumstances, your Honor, I’d ask the Court to dismiss Mr. Gravis’

motion on behalf of Mr. Deli.”

(Id. 546.)

The prosecutor then

unambiguously signaled he was done with that argument, stating, “[w]ith

respect to Mr. Levine’s argument, your Honor, there is direct testimony

that Mr. Taylor physically fired at both the mother and the

grandmother . . ..” (Id.) The prosecutor then explained the alleged proof

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that Taylor shot both victims, making him principally liable for

intentional murder, and made arguments as to why the felony murder

counts should also survive.3 (Id. 546-47.) There was no mention of

accomplice liability by the prosecutor related to Taylor. The arguments

in response to Taylor’s motion to dismiss charges were exclusively based

on a theory of principal liability.

Similarly, Taylor’s plea to capital homicide focused solely on his acts

as a principal, and was devoid of any reference to the essential elements

of accomplice liability set forth in § 76-2-202. Specifically, in Count I he

pled guilty to “intentionally or knowingly caus[ing] the death of Beth

Potts, and the homicide was committed incident to one act, scheme, course

of conduct, or criminal episode during which two or more persons, to wit:

Beth Potts and Kaye Tiede, were killed.” (I Appx. 19.) Count II was

identical except it applied to the death of Kaye Tiede and reversed the

victims’ names at the end. Id.

This Court has previously looked at “the fundamental due process

question of whether one can be sentenced for a crime not charged and to

which no plea of guilty has been entered,” determining that the “answer

The felony murder counts were subsequently dismissed by the

prosecutors at the time of Taylor’s plea.

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is an unequivocal no.” Von Atkinson v. Smith, 575 F.2d 819, 821 (10th

Cir. 1978) (applying Cole). Yet that is precisely what the Warden now

asks this Court to do: convict (without a jury) and then sentence Taylor to

the uncharged crime of accomplice capital murder to which he did not

plead guilty. The district court correctly rejected this request below.

(XX Appx. 4809.) “It is axiomatic that due process does not permit one to

be tried, convicted or sentenced for a crime with which he has not been

charged or about which he has not been properly notified.” Von Atkinson,

575 F.2d at 821 (citations omitted).

Notwithstanding the foregoing, the Warden rests his entire appeal

on his assertion that Taylor pled guilty to accomplice liability. That

argument fails because the record repeatedly affirms that Taylor only

received notice he was pleading to principal liability, and Utah state law

forecloses the Warden’s arguments.

The Warden’s Assertion That Taylor Pled Guilty To

Accomplice Liability Has No Basis In Fact

The Warden’s newfound contention in the face of his loss before the

district court is belied by his own repeated admissions to the contrary. In

the Warden’s Supplemental Briefing on the Issue of Accomplice Liability,

he told the district court that, “Taylor complains that he ‘was not provided

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specific, or even adequate, notice that the State was pursuing a conviction

based on accomplice liability.’ . . . This is irrelevant, because the State did

not pursue a conviction based on accomplice liability.” (XIX Appx. 4646,

emphasis added.)

He further said, “Taylor argues that charging an individual as a

principal does not provide adequate notice that the State is actually

pursuing an accomplice liability theory . . . This is irrelevant because the

State was not pursuing an accomplice liability theory – but it could have,

if Taylor had gone to trial and insisted as he does now that he was only an

accomplice.” (XIX Appx. 4647, emphasis added.)

Despite these clear admissions that Taylor never pleaded guilty as

an accomplice, the Warden now contends that the district court “misread”

Taylor’s guilty plea and was “plainly wrong” because it concluded that he

did not plead guilty to accomplice liability. (AOB 1.) The Warden claims

the “plea statement used accomplice liability language,” because the

factual basis included the words “and the conduct of other persons for

which I am criminally liable,” and that Taylor “‘in conjunction with

Edward Steven Deli’ ‘unlawfully entered’ the victims’ cabin, and when the

victims returned to the cabin, ‘[he] and [his] co-defendant, Edward Steven

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Deli, intentionally and knowingly caused the death of both’ of them.”

(AOB 1-2, emphases in original.)

That language is not notice. The vague phrases cited by the Warden

do not track the statute, never approaching “solicit[ing],” “request[ing],”

“command[ing],” “encourag[ing],” or “intentionally aid[ing].” To support

the Warden’s claim, the plea would have required some reference to the

accomplice liability statute, whether the elements or even just the name

given to the offense by common law or by statute. It had neither. The

plea supports the Warden’s honest admission that “the State was not

pursuing an accomplice liability theory.” (XIX Appx. 4647.)

That Taylor pled to principle liability is discernable from: (1) the

Information (I Appx. 1-4); (2) Statement of Probable Cause (I Appx. 5-6);

(3) Warrant of Arrest (I Appx. 7-9); (4) Statement of Defendant

(I Appx. 18-25); and (5) the transcript of the plea hearing.

(IX Appx. 1917-36.)

(a)

The Information

The Information did not sufficiently apprise Taylor that he was

being charged as an accomplice, as it neither charged the offense in the

words of the statute, nor did it set out with certainty all of the elements

necessary to constitute the offense.

27a

(I Appx. 1-4.)

Moreover, the

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Information could not have charged Taylor with accomplice liability

because it would have been “fatally defective” for failing to state the actus

reus required for accomplice liability. Cf. State v. Steele, 245 P. 332, 33334 (Utah 1926) (information “fatally defective” for failure to allege

requisite mens rea to be an accomplice).

Had Taylor’s prosecutors meant to charge him as an accomplice, they

knew what was required. From the beginning to the end, Deli had notice

of the State’s intent to prove his liability as an accomplice. The State

exclusively discussed accomplice liability in relation to Deli at the

preliminary hearing (III Appx. 545-46), and again echoed it in the jury

instructions at his trial:

That on or about the 22nd day of December,

1990, in Summit County, Utah, the defendant,

Edward Steven Deli, either:

(a)

caused the death of Beth Potts; OR

(b) solicited, requested, commanded,

encouraged or intentionally aided Von Lester

Taylor to cause the death of Beth Potts.

(Supp.Appx. 19-22, 82, 86 (same instruction re: Kaye Tiede).)

The prosecutors knew that Deli could only be guilty of principle “OR”

accomplice liability, which is why they requested and received jury

instructions in his case explaining the theories in the alternative. Taylor

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also could only be liable for one.

(b)

Statement Of Probable Cause

The Information was “supported by a Statement of Probable [C]ause”

which was attached to it and incorporated by reference. (I Appx. 4.) The

Statement alleged “[t]he defendants, Von Lester Taylor and Edward

Steven Deli ordered the women into the residence. A few minutes later,

the defendant, Von Lester Taylor shot Beth Potts and Kaye Tiede with a

handgun. The defendants then tied up Linae Tiede. . . .” (I Appx. 6,

emphasis added.) Thus, like the Information, the Statement did not

contain factual allegations providing notice of accomplice liability, only

principal liability. (I Appx. 5-6.)

(c)

Warrant Of Arrest

The arrest warrants, which were filed with the Information and the

Statement of Probable Cause, charged Taylor and Deli with two Counts

of “Murder in the First Degree a capital offense” pursuant to Utah Code

§ 76-5-202(1)(b) and/or (d). (I Appx. 7-9.) Section 76-5-202 does not

reference accomplice liability. And, the arrest warrants did not reference

§ 76-2-202, the accomplice liability statute.

XX Appx. 5003-04.)

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Statement Of Defendant

The Statement of Defendant is even more clear than the Information

that Taylor was charged only as a principal. While the Information

charged both Taylor and Deli in Counts I and II with “intentionally or

knowingly, caus[ing] the death of [the victims]” (I Appx. 1), the Statement

of Defendant changed Counts I and II to charge only Von Taylor with the

homicides. (I Appx. 19.) Neither the accomplice liability statute, nor its

language, are included in the Statement.

Following Counts I and II is the language which the Warden now

claims gave notice of accomplice liability: “[m]y conduct, and the conduct

of other persons for which I am criminally liable, constitute the elements

of the crimes charged.” (I Appx. 19.). This precise phrase is commonly

found in Utah plea statements. As the Warden acknowledged before the

district court, “perhaps accomplice liability is different in different states.”

(XIX Appx. 4723.) In Utah the Warden’s purported linchpin is nothing

more than boilerplate plea language. A national search for the phrase

“and the conduct of other persons for which I am criminally liable” in both

Lexis and Westlaw yields only four cases -- all in the State of Utah. In

three of those four cases, there were no co-defendants or other possibly

complicit persons. See Salazar v. Utah State Prison, 852 P.2d 988, 989 n.1

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(Utah 1993); State v. Lehi, 73 P.3d 985, 987 (Utah Ct. App. 2003)

(involving a DUI offense); State v. Trujillo-Martinez, 814 P.2d 596, 599 n.4

(Utah Ct. App. 1991). The phrase also was found in two briefs, both also

referencing Utah pleas. See State v. Ott, 2008 WL 8772419 (Utah); State

v. Watson, 2016 WL 7744969 (Wash.App. Div. 2) (referencing a prior

conviction in the State of Utah). Finally, two Statements by Defendants

available on Westlaw reveal the same boilerplate. See State v. Mabey,

2008 WL 4411688 (Utah Dist.Ct.); State v. Redd, 2007 WL 5253421 (Utah

Dist.Ct.) These latter four references also appear to be cases with no codefendants or other potential accomplices.

Not only do these cases confirm that the phrase has nothing to do

with accomplice liability, it establishes that the language could not have

informed Taylor or his attorney of the nature and cause of an accomplice

liability accusation against Taylor.

(e)

Plea Hearing

The transcript of the plea hearing on May 1, 1991, confirms that

Taylor pleaded guilty to two counts of capital murder as a principal.

(IX Appx. 1917-36.) Although Taylor acknowledged he was pleading to

acts he did with his co-defendant, there was no discussion of Utah Code

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§ 76-2-202, the language of that statute, the required elements, or any

other discussion of accomplice liability. Without such notice, Taylor could

not, and did not plead to charges as an accomplice. See State v. Seumanu,

443 P.3d 1277, 1284 (Utah Ct. App. 2019).

The district court painstakingly reviewed all of these documents

charging Taylor and carefully construed Utah Code § 76-5-202, the capital

murder statute, Utah Code § 76-2-202, the accomplice liability statute,

and D.B. v. State, 289 P.3d 459, 465 (Utah 2012), before concluding that

the “State did not charge Mr. Taylor or Mr. Deli with liability as an

accomplice to murder, which is a different crime with different elements.”

(XX Appx. 5003-04.)

Courts That Have Reviewed His Plea Confirm That

Taylor Pled Guilty As A Principal

Even the judge who took the original plea never gave any hint that

the plea was one for accomplice liability.

Ruling on the Warden’s

summary judgment motion in 2004, the trial judge explained that Taylor’s

guilty pleas had the factual basis to support principal liability.

Before reciting the facts supporting the capital

murder charges, th[is] Court set forth the elements

that the State had to prove using specific language

that reflected petitioner’s personal responsibility.

As to Beth Potts’ murder, the Court stated, “You,

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as the defendant, did intentionally or knowingly

cause the death of Beth Potts, and the homicide

was committed incident to one act, scheme, course

of conduct or criminal episode during which two or

more persons, to wit, . . . Beth Potts and Kaye

Tiede were killed.” Tr. of Plea-Change Hrg. at 9

(emphasis added).

The Court used similar

language with respect to Kaye Tiede’s capital

murder.

(IX Appx. 1951-52, emphasis in original.) The trial judge also noted the

“Court’s express emphasis during the elements explanation that petitioner

was himself responsible for the victims’ deaths.” Id.

The Utah Supreme Court also viewed Taylor as having only

principal liability. See Taylor v. State, 270 P.3d 471, 482 (2012) (“Taylor

III”) (“Although he pled guilty to killing Kay [sic] Tiede and Beth Potts,

Taylor now alleges that it was actually his coconspirator, Deli, who killed

these women.”). Referencing Taylor’s claim that the shots that killed the

two women came from his co-defendant’s .44 caliber gun and not from

Taylor’s .38 caliber gun, and therefore Taylor is innocent, the court

referred to the argument as “frivolous because there is ample evidence in

the record to support Taylor’s guilt.” Id. at 483. The court then supported

its finding with a litany of supposed facts all pointing to Taylor’s principal

liability.

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From the arrest warrant to post-plea hearings before the trial court,

principal liability was reinforced time and again.

Contrary to the

Warden’s assertion, the district court did not say Taylor’s plea as an

accomplice “didn’t exist” (AOB 27), it found that he had not so pled after

conducting a thorough review of the plea related documents and the

pertinent state law that was conspicuously downplayed in the Warden’s

brief. Indeed, D.B., the seminal case on the matter, is only mentioned

twice in passing by the Warden, despite the district court finding that,

“[i]n D.B., the Utah Supreme Court rejected an argument very similar to

the one the State makes now.” (XX Appx. 4809.)

This is why the district court, after substantial analysis

(XX Appx. 4808-12), concluded in the Order Granting Evidentiary Hearing

that, “[t]he Information did not charge Mr. Taylor with accomplice

liability.

Nothing in the Statement of Defendant or plea colloquy

mentions accomplice liability.

And, of course, no trial occurred.”4

(XX Appx. 4810-11.) If neither the trial court nor the district court could

find evidence of notice of accomplice liability, then Taylor certainly could

This final point is significant because as discussed below, notice of

accomplice liability in Utah can be provided from evidence offered at trial.

In this case, no such avenue for notice existed.

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not have gleaned such notice from the same record. Without such notice,

the Warden’s arguments fail.

Utah State

Arguments

Law

Forecloses

The

Warden’s

Hoping something might stick, the Warden has thrown out a variety

of suggested ways in which this Court can find that Taylor pled guilty to

accomplice liability. At various points in his brief, the Warden argues

that principal and accomplice liability are not separate, and if they are

separate, one is sufficient to provide notice of the other. He then goes so

far as to claim that Taylor pled guilty to both simultaneously. Each of

these rather preposterous arguments is foreclosed by Utah law.

The Warden’s first and second arguments have been directly rejected

by the Utah Supreme Court, and this Court is bound by that court’s

interpretation. In D.B., a post-Gonzales5 case, the Utah Supreme Court

started with the premise that, “a person charged with a crime [as a

principal] has adequate notice of the possibility of accomplice liability

being raised at trial.” D.B., 289 P.3d at 471. The court then concluded

that “the question of what notice is constitutionally sufficient before the

State may actually pursue accomplice liability is an issue of first

State v. Gonzales, 56 P.3d 969 (Utah Ct. App. 2002).

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impression for this court.” D.B., 289 P.3d at 471 (emphases in original)

(internal citation and quotations omitted). Answering that question, the

D.B. court found that accomplice liability requires specific notice:

“[c]harging 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. And, by concluding that notice of one

cannot provide notice of the other, the Utah Supreme Court has also

necessarily concluded that they are, in fact, separate crimes.

The D.B. court took the guesswork out of reasonable notice,

explaining that the “simplest way for the State to provide adequate notice

is by actually charging the defendant as an accomplice.” D.B., 289 P.3d at

471 (emphasis added); see also State v. Swapp, 808 P.2d 115, 116-17 (Utah

Ct. App. 1991) (defendant was charged with criminal homicide and

accomplice liability was separately alleged.). It then spelled out what

constitutes constitutionally sufficient notice. The “Sixth Amendment is

satisfied when a defendant (1) receives adequate notice that the State is

pursuing accomplice liability and (2) the State has not affirmatively

misled the defendant.” D.B., 289 P.3d at 471 (citations omitted).

///

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Here, the prosecution chose not to articulate an accomplice liability

theory at the time of the plea, but wants to pursue that theory now,

decades later, because Taylor won relief. D.B. prevents such a result:

The Sixth Amendment requires the State to

provide a defendant charged as a principal with

adequate notice if the State also plans to pursue an

accomplice liability theory. To do so, the State

must either charge the defendant as an accomplice

or present evidence of accomplice liability prior to

the close of evidence at trial.

D.B., 289 P.3d at 472. The prosecution neither provided adequate notice

by charging Taylor as an accomplice, nor could it have notified him via

trial evidence, as there was no trial.

The Warden also asserts that Taylor’s plea was to both principal and

accomplice liability, but the D.B. court made clear the impossibility of that

outcome. Indeed, the dissent in D.B. posited such a theory, and the

majority criticized the “dissent’s theory [as] unworkable because it would

dictate that a perpetrator who commits an offense with another would

necessarily be liable as both a principal and an accomplice. But section

76-2-202 of the Utah Code requires conduct different from direct

commission of an offense before a defendant incurs accomplice liability.”

D.B., 289 P.3d at 465. In Utah, the prosecution may charge alternative

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offenses in a single count, but “charges must be pled in separate counts if

the prosecution desires to preserve an alternative charge in the face of a

defendant’s plea of guilty to the other charge.” State v. Loveless, 232 P.3d

510, 511 (Utah 2010). “Alternative charges filed in a single count allow

a defendant to plead guilty as charged to either of the alternative

charges.” Id.

Thus, even were this Court to find that Taylor was charged as both

a principal and an accomplice, it would then have to determine to which

charge Taylor pleaded guilty. The Warden appears to believe that in such

a circumstance, he gets to retroactively choose which of the alternative

charges Taylor pled guilty to, but that is not the law in Utah. Assuming

Taylor was charged as both a principal and accomplice in the same count,

the choice of which to plead to would be his and his alone. See Loveless,

232 P.3d at 513 (“prosecutors who opt to charge alternative offenses in a

single count are at risk that the defendant will plead guilty as charged to

one of the offenses and thereby eliminate the alternative offense contained

in the same count. . . . If the state desires a judicial determination as to

every charge in an information, including charges pled in the alternative,

the prosecutor must charge each offense in separate counts”). Even

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viewing the charging instrument as having been a menu of choices, every

indicator is that Taylor chose to plead guilty as a principal.6

State v. Gonzales, a case cited repeatedly by the Warden, does not

change the analysis. See 56 P.3d 969 (Gonzales is a intermediate court

case that has been distinguished by the Utah Supreme Court in D.B., as

well as the district court herein). While Gonzales notes other ways to

achieve sufficient accomplice liability notice under Utah law, none apply

here. And, although Gonzales states that an Information charging an

individual with a general offense, without reference to principal or

accomplice liability, may be tolerable when the prosecution presents

evidence of accomplice liability at trial, such additional notice is required.7

Taylor never received such additional notice.

While the defendant in Loveless chose the lesser charge, and most

would, here choosing the more severe charge fit with the mitigation theory

presented during the penalty phase trial. See I Appx. 70-71 (“I think

you’ll see from the testimony that Mr. Taylor was willing to come forth,

knowing the consequences he faced, come forth and admit the wrong

doings that he had been involved in. Mr. Taylor in no way, shape or form

denies that he murdered those two women.”).

In Gonzales, the lack of error was due to the State’s continuous use of

a principal liability rather than an accomplice liability theory. See

Gonzales, 56 P.3d at 972 (noting the state did not vary from the charges

in the information). The State did not need to give notice of the

accomplice liability theory in the information because it never sought to

use that theory. Id.

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Indeed, where, like here, the specific charges are never going to

otherwise be presented via trial evidence, it is especially important for a

defendant to have specific additional notice of the accomplice charge. In

fact, Utah Rule of Criminal Procedure 11(e)(4)(A) requires that the

defendant understand the nature and elements of the offense to which the

plea is entered and that the plea be an admission of all those elements.

The Supreme Court has “long held that a plea does not qualify as

intelligent unless a criminal defendant first receives ‘real notice of the

true nature of the charge against him, the first and most universally

recognized requirement of due process.’” Bousley v. United States, 523

U.S. 614, 618 (1998) (quoting Smith v. O’Grady, 312 U.S. 329, 334 (1941)).

Yet, when Taylor entered his guilty plea he was not provided specific, or

even adequate notice that the State was pursuing a conviction based on

accomplice liability.8

As in D.B., where the court held that “the State’s vague allusion to

accomplice liability in its rebuttal did not put D.B. on notice that it was

pursuing accomplice liability” D.B., 289 P.3d at 466, the charging

Gonzales is further distinguishable from this case because Gonzales did

not plead guilty. Instead, he received a trial, after which the court

concluded that the evidence did not warrant an accomplice liability jury

instruction.

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documents did not put Taylor on notice that the state was pursuing

accomplice liability because they clearly and consistently relied on

principal liability. The district court properly looked to D.B. in concluding

that Taylor pleaded guilty to principal liability, and did not plead guilty

as an accomplice. (XX Appx. 4810-11.)

The Warden’s Attempt To Rewrite Schlup Is Equally

Without Merit

Schlup And Its Progeny Make Clear That It Is

Backward-Looking

Relying on a tortured reading of Schlup, the Warden asks this Court

to overturn the district court based on what the State speculates it could

do if the case were retried. Specifically, the Warden asserts that the State

could have pursued accomplice liability and would do so at a new trial, so

Schlup’s “forward-looking probabilistic determination of what a

reasonable, properly instructed juror would do” warrants reversal. (See,

e.g., AOB 2.) This self-serving view of Schlup is entirely unsupported in

case law, having never been adopted by any court.

The Warden arrives at his interpretation by cherry-picking a

sentence from Schlup and ignoring the two sentences that bookend it

which unequivocally show that the term “would” is backward-looking, not

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forward-looking.

The meaning of actual innocence as formulated by

Sawyer9 and Carrier10 does not merely require a

showing that a reasonable doubt exists in the light

of the new evidence, but rather that no reasonable

juror would have found the defendant guilty. It is

not the district court’s independent judgment as to

whether reasonable doubt exists that the standard

addresses; rather the standard requires the district

court to make a probabilistic determination about

what reasonable, properly instructed jurors would

do. Thus, a petitioner does not meet the threshold

requirement unless he persuades the district court

that, in light of the new evidence, no juror, acting

reasonably, would have voted to find him guilty

beyond a reasonable doubt.

Schlup, 513 U.S. at 329 (emphasis added).11 See also House v. Bell, 547

U.S. 518, 540-41 (2006) (showing how the predictive standard is

Sawyer v. Whitley, 505 U.S. 333 (1992).

Murray v. Carrier, 477 U.S. 478 (1986).

Even three dissenting Justices in Schlup made clear that this is

backwards looking:

The reviewing court must somehow predict the effect that this

new evidence would have had on the deliberations of

reasonable jurors. It must necessarily weigh this new evidence

in some manner, and may need to make credibility

determinations as to witnesses who did not appear before the

original jury. This new evidence, however, is not a license for

the reviewing court to disregard the presumptively proper

determination by the original trier of fact.

Schlup, 513 U.S. at 341 (Rehnquist, J., dissenting).

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backward-looking. Through the discussion in House, this Court can see

that to achieve the answer as to whether reasonable jurors would have

reasonable doubt, the Court posits a hypothetical wherein it looks to the

proof at trial, considering the weight a jury would have given to that

evidence. This Court must then look at the new evidence to determine

how that jury would have been informed by having this knowledge added

to what it already had. Id. (“A jury informed [of the new evidence] might

have found . . ..”) This Court then decides whether the jury considering

the previously presented evidence and new evidence would have come to

a different conclusion.).

The “would have” phrasing in Schlup is what is quoted in McQuiggin

v. Perkins, leaving no doubt that the Supreme Court intended the test to

be one that looks backward to what would have happened. 569 U.S. 383,

399 (2013) (“To invoke the miscarriage of justice exception to AEDPA’s

statute of limitations, we repeat, a petitioner ‘must show that it is more

likely than not that no reasonable juror would have convicted him in the

light of the new evidence.’”) (citing Schlup, 513 U.S. at 327).

To establish a Schlup gateway, a petitioner must first establish that

he is actually innocent of the offense for which he was convicted. The

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Warden wants this Court to replace that test with one that looks to

whether Taylor could be convicted of some other crime following a host of

speculative events. To require a petitioner to establish that he is actually

innocent of another offense for which he could have been convicted (but

one he has not yet been convicted of) – if charged, and if tried and

sufficient evidence were presented, and if a jury was properly instructed,

and if a jury finding of guilt was obtained – is illogical and inconsistent

with the holding of Schlup. Moreover, it is incompatible with American

criminal justice values of due process and fairness.

Under Schlup, the mere existence of sufficient evidence that could

possibly convict Taylor of a different offense than his offense of conviction

is irrelevant. The prosecution decides whether to offer a plea. Yet,

despite having unfettered power to have crafted the plea however it liked,

the Warden has now asked this Court to expand on the prosecution’s deal

because, with 20/20 hindsight, it was not broad enough to encompass the

full range of offenses for which the Warden wishes Taylor had actually

been charged and convicted.

The Warden also posits that, “[i]f Taylor had gone to trial . . . the

most likely scenario would have been that the prosecution would have

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asked for a jury instruction on accomplice liability, and argued to the jury

that Taylor was guilty regardless of whether he fired any fatal shots.”

(AOB 51.) What the State could have charged is not a proper inquiry.

The focus must be on what would have happened in the case that existed,

in light of the new evidence. In context, it is obvious that the reference to

what the juror “would have” done is the implication of a probabilistic

determination by a reasonable juror examining the new and old evidence

together in this case.

The Warden’s “would’ve, could’ve, should’ve” argument is not

supported by either legal authority or logic. Taylor was not charged as an

accomplice. Despite this fact, and without authority, the Warden treats

accomplice-liability culpability as a lesser included offense to capital

murder.12 The argument has no proper place here because even within

The district court explained the problem well in its Order Granting An

Evidentiary Hearing. See XX Appx. 4811 n.12 (explaining that accomplice

liability is not a lesser-included-offense of capital murder. “In Utah, a

lesser-included offense is an offense that ‘is established by proof of the

same or less than all the facts required to establish the commission of the

offense charged[.]’ Utah Code Ann. § 76-1-402(3)(a) (Michie 1990). As

noted above, liability as an accomplice requires proof of elements different

than those required to convict a defendant for capital murder. . . . But

even if it were, it would be a legal impossibility for Mr. Taylor to

alternatively plead to both the murders of Ms. Potts and Ms. Tiede and

being an accomplice to their murders. ‘A defendant may be convicted of

an offense included in the offense charged but may not be convicted of both

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the Schlup universe, there are basic parameters to the hypothetical.

While expansive, Schlup is finite, limiting the habeas court to a fixed

universe of information. Schlup calls for a reweighing of the new and old

evidence within a fixed static temporal model, the case as it was at the

time. Schlup certainly is not referring to a future trial, as the Warden

posits without supporting case law, nor does it permit an evaluation based

on how different charges would effect that evidentiary analysis.

The Warden’s Effort To Impose A Standard Of

Proof Beyond That Required By Schlup Is Without

Merit

Again the Warden seeks to rewrite Schlup by taking a single word

out of context – “entirely” – and giving it determinative weight that no

other court has given.

In Schlup, the Supreme Court said, “[t]he

quintessential miscarriage of justice is the execution of a person who is

entirely innocent.” Schlup, 513 U.S. at 324-25. The Supreme Court was

explaining the ultimate miscarriage of justice in dicta, not setting the

benchmark for the gateway past procedural bars. The holding articulated

the correct standard: the petitioner must “show that it is more likely than

not that no reasonable juror would have convicted him in the light of the

the offense charged and the included offense.’

(Emphasis in original.)

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new evidence.” Schlup, 513 U.S. at 327.

No part of that standard requires one to prove they are “entirely

innocent” as the Warden contends. The Warden has nonetheless taken

the Supreme Court’s example of the utmost transgression and tried to

create

much

higher

burden

for

Taylor,

claiming

“Schlup’s

actual-innocence default exception . . . applies only for someone who is

‘entirely’ innocent.” (AOB 2; see also 14, 19, 22, 23, 28, 29, and 36.) Only

one circuit court case even tangentially approaches such a standard, and

even there it proffers entire innocence to be a reason, not a requirement.

See Amrine v. Bowersox, 128 F.3d 1222, 1227 (8th Cir. 1997) (“The

underlying reason for an actual innocence gateway is that the

‘quintessential miscarriage of justice is the execution of a person who is

entirely innocent.’ Schlup, 115 S. Ct. at 866.”).13 Not only is the Eighth

Circuit’s approach to Schlup cases decidedly different from other circuits

(XX Appx. 4861), even Amrine only suggests that “entire innocence” is the

underlying reason for having the Schlup gateway, it does not make it a

Other circuits to have discussed “entire” innocence have done so only

in dissents; thus, it is not the law anywhere. See, e.g., In re Davis, 565

F.3d 810, 831 (11th Cir. 2009) (Barkett, J., dissenting) (discussing entire

innocence in a case where a Herrera v. Collins, 506 U.S. 390 (1983) claim

was brought.)

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contingency for the gateway. Moreover, in Jones v. Delo, the Eighth

Circuit explained that,

Although ‘[a] prototypical example of ‘actual

innocence’ . . . is the case where the State has

convicted the wrong person of the crime,” Sawyer,

[505 U.S. at 340], one is also actually innocent if

the State has the “right” person but he is not guilty

of the crime with which he is charged.

56 F.3d 878, 883 (8th Cir. 1995) (citing Schlup, 513 U.S. at 321).

The Warden’s reliance on Bousley as support for his novel theory is

equally misplaced. (AOB 22.) First, Bousley was not a capital case. If

Schlup only applied to cases pertaining to “the execution of a person who

is entirely innocent,” Bousley could not have had his case analyzed

pursuant to Schlup. Moreover, in Bousley the government attempted to

argue that because the statute under which the petitioner was charged

included liability for both carrying and using a firearm during a drug

transaction, the petitioner would have to demonstrate he was innocent of

both using and carrying a firearm during such a transaction. Bousley, 523

U.S. at 624.

The Supreme Court rejected that argument because

“petitioner’s indictment charged him only with ‘using’ firearms” and there

was no “evidence that the Government elected not to charge petitioner

with ‘carrying’ a firearm in exchange for his plea of guilty.” Id. Similarly,

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Taylor “need demonstrate no more than that he” was not guilty of

principal liability. Id.

The Warden’s next instance of cherry-picking language is even more

egregious given that he does so from a case that he knows supports

Taylor. Specifically, the Warden argues that “proving innocence on one

theory while guilt on another is overwhelmingly proved by uncontested

evidence fails to prove ‘entire[]’ innocence. For a defendant to be able to

successfully defend against an indictment as a perpetrator by proving he

was an aider and abettor is ‘morally absurd.’” (AOB 37 (quoting State v.

Petry, 273 S.E. 2d 346, 349 (W. Va. 1980)). As Taylor already explained

before the district court:

[I]n Ms. Petry’s case the court actually reversed the

circuit court and remanded the case “with

directions to enter a judgment of acquittal” because

the state’s common law “required that aiders and

abettors be indicted as such.” Petry, 273 S.E.2d at

352. Thus, if Petry has any persuasive value here,

it is to support Mr. Taylor’s arguments.

The moral absurdity discussed in Petry referenced

the “ludicrous point . . . that the defendant can

successfully defend against an indictment as a

perpetrator by proving she was an aider and

abettor and vice versa.” Id., 273 S.E.2d at 349.

Mr. Taylor is doing no such thing. It is the State

that is obsessed with Mr. Taylor’s alleged

accomplice liability. Mr. Taylor is not seeking to

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avoid conviction by arguing he was an accomplice,

he is challenging the conviction he has. This is

precisely what Schlup requires.

(XIX Appx. 4786.) Moreover, this is not a case where guilt on another

theory is overwhelmingly proved by uncontested evidence, because Taylor

was never charged under another theory and therefore has never had a

chance to contest the purported evidence.14

The Warden’s position is further foreclosed by the Supreme Court’s

debate in Schlup whether to utilize the Carrier standard, i.e. “the

petitioner must show that the constitutional error ‘probably’ resulted in

the conviction of one who was actually innocent,” or the Sawyer standard

requiring “clear and convincing evidence that but for a constitutional

error, no reasonable juror would have found the petitioner eligible for the

death penalty.” Schlup, 513 U.S. at 322-23 (quoting Sawyer, 505 U.S. at

336 (emphasis in Schlup)). The Supreme Court held that “the Carrier

‘probably resulted’ standard rather than the more stringent Sawyer

standard must govern the miscarriage of justice inquiry when a petitioner

The Warden is fond of claiming in the AOB that Taylor has not

contested evidence of his guilt as an accomplice, but Taylor has never had

to contest whether the evidence proves accomplice liability because he was

never charged under such a theory. Taylor has consistently contested the

relevance of accomplice liability.

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who has been sentenced to death raises a claim of actual innocence to

avoid a procedural bar to the consideration of the merits of his

constitutional claims.” Schlup, 513 U.S. at 326-27.

Beyond choosing the easier to meet Carrier standard, the Court left

no doubt about the test to be applied, explaining that the “Carrier

standard requires the habeas petitioner to show that ‘a constitutional

violation has probably resulted in the conviction of one who is actually

innocent.’” Schlup, 513 U.S. at 327 (quoting Carrier, 477 U.S. at 496).

Taylor is actually innocent of principal liability in the deaths of Kaye

Tiede and Beth Potts, which is all that matters here. The Supreme

Court’s decision to impose the “lower burden of proof” (id.), would be

entirely undermined if courts read Schlup as the Warden proposes.

Indeed, not only does a petitioner not have to prove he is “entirely

innocent,” there are instances where a petitioner need not even have new

evidence to argue actual innocence. See United States v. Davies, 394 F.3d

182, 191 (3d Cir. 2005) (explaining that in Bousley, “the Supreme Court

held that a habeas petitioner may demonstrate ‘actual innocence’ by

pointing to post-conviction decisions ‘holding that a substantive criminal

statute does not reach [his] conduct.’” (citing Bousley, 523 U.S. at 620)).

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If “Bousley could cure [his] default by showing that, under the new . . .

interpretation of ‘using,’ he was ‘actually innocent’ of violating § 924(c)(1)”

Davies, 394 F.3d at 192, then the district court was certainly correct to

rule for Taylor because he is actually innocent of the principal liability to

which he pled guilty.

The Warden’s appeal depends entirely on his assertions that Taylor

pled guilty as an accomplice and that Schlup is forward-looking and

requires “entire” innocence. Because none of those assertions are correct

as matters of fact or law, the district court’s rulings should be affirmed.

II.

The District Court Correctly Concluded That Because

Taylor’s Trial Counsel Provided Ineffective Assistance,

Taylor Did Not Make A Knowing And Intelligent Decision To

Plead Guilty

Trial counsel, Elliot Levine, provided constitutionally deficient

representation by failing to investigate or test the prosecution’s case.

Trial counsel’s failure to investigate precluded him from providing

informed advice to Taylor during the plea process. Because trial counsel’s

deficient performance was prejudicial, the district court correctly granted

relief.

In Claim Four of his SAP, Taylor argued that his guilty plea to two

capital homicides was constitutionally defective. (XIII Appx. 2910-25.)

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Sub-claim 4.A argued trial counsel failed to meaningfully investigate the

State’s case and to offer Taylor adequate advice “on the advisability of

entering into any plea agreement.” (Id. 2910-14.) Also included was subclaim 4.D, that a guilty plea can be rendered involuntary and

unintelligent based on ineffective assistance of counsel. (Id. 2921-25.)

The district court concluded that these sub-claims were not

addressed on the merits by the Utah courts because they were

procedurally barred. Because the court found that Claims 4.A and 4.D

provided “sufficient reason to vacate Mr. Taylor’s sentence,” it did not

address the remaining sub-claims. (XX Appx. 5016.)

In granting relief, the district court found that trial counsel failed to

investigate and test the State’s case. Specifically, the court found that

trial counsel performed deficiently when he failed to fulfill “his duty to

investigate by, for example, hiring a ballistics expert and a forensics

expert,” or to “interview witnesses,” including “key witnesses for the

prosecution.”

(XX Appx. 5033.)

The district court also found that

“[b]ecause [trial counsel] failed to investigate, he was not able to

reasonably advise Mr. Taylor about whether or not to plead guilty.”

(XX Appx. 5036.)

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The district court then found that trial counsel’s deficient

performance prejudiced Taylor because “[i]f [trial counsel] had

investigated the case and properly advised Mr. Taylor about the merits of

the evidence against him, there is a reasonable probability that Mr. Taylor

would not have pleaded guilty to the first-degree murder charges and

instead would have insisted on going to trial.” Id. The court further found

that “Taylor did not make a knowing and intelligent decision to plead

guilty to two capital crimes” and, as a result, “Taylor’s death sentence was

based on his invalid plea.” (XX Appx. 5037.)

Even in his arguments regarding ineffective assistance of counsel,

the Warden focuses exclusively on accomplice liability as proof that any

attempt by trial counsel to defend Taylor would have been futile. The

Warden repeatedly refers to the state’s evidence against Taylor’s conduct

“as an accomplice” as “unassailable,” “overwhelming,” “undisputed,” and

“uncontested,” all while ignoring the fact that Taylor did not plead guilty

to, and therefore was not convicted of, accomplice liability. Accordingly,

once this Court finds that Taylor did not plead guilty as an accomplice,

and that Schlup is not “forward-looking,” the Warden’s arguments against

ineffective assistance fail.

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As A Result Of Trial Counsel’s Constitutionally

Deficient Failure To Investigate, He Was Precluded

From Providing Taylor With Meaningful and Informed

Advice, Resulting In Taylor’s Unconstitutional Guilty

Plea To Capital Murder As A Principal

Taylor asserted that ineffective representation resulted in an

unconstitutional guilty plea. Specifically, he claimed that trial counsel

failed to investigate and challenge the State’s case and, as a consequence,

was uninformed and unable to effectively advise Taylor regarding his

options.

The Sixth Amendment guarantees a defendant effective

assistance of counsel at “critical stages of a criminal proceeding,”

including when he enters a guilty plea. Lee v. United States, 137 S.Ct.

1958, 1964 (2017); Lafler v. Cooper, 566 U.S. 156, 165 (2012); Hill v.

Lockhart, 474 U.S. 52 (1985). The district court correctly recognized that

an ineffective assistance of counsel claim “must satisfy the well-known

two-part test articulated in Strickland.” (XX Appx. 5028.)

Under the first Strickland prong, Taylor was required to show that

trial counsel’s “performance fell below an objective standard of

reasonableness.” (XX Appx. 5028.) In Hill, the Supreme Court explained

the proper focus of an analysis of the first prong in cases involving

convictions obtained through the plea process, rather than a trial:

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We hold [ ] that the two-part Strickland v.

Washington test applies to challenges to guilty

pleas based on ineffective assistance of counsel. In

the context of guilty pleas, the first half of the

Strickland v. Washington test is nothing more than

a restatement of the standard of attorney

competence already set forth in Tollett v.

Henderson, [411 U.S. 258 (1973)], and McMann v.

Richardson, [397 U.S. 759 (1970)].

Hill, 474 U.S. at 58-59.

Thus, the first task is to assess whether trial counsel’s

representation of Taylor was constitutionally deficient. Trial counsel has

a duty to investigate all reasonable lines of defense. Strickland, 466 U.S.

at 691 (recognizing duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary);

Nguyen v. Reynolds, 131 F.3d 1340, 1347 (10th Cir. 1997). This duty “is

strictly observed in capital cases.” Nguyen, 131 F.3d at 1347. Even if no

viable defense is apparent, the Sixth Amendment still requires that

counsel hold the prosecution to its heavy burden of proof beyond a

reasonable doubt. Fisher v. Gibson, 282 F.3d 1283, 1291 (10th Cir. 2002).

Trial counsel clearly did not. Had he done so, he would have discovered

the readily available evidence that convinced the district court that Taylor

had met the high bar of establishing actual innocence under Schlup. (See

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XX Appx. 4856-4908.)

In assessing whether trial counsel’s representation fell below an

objective standard of reasonableness, courts look to the prevailing

professional norms. This Court has recognized that, in capital cases, the

American Bar Association Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases (“ABA Guidelines”) is an

appropriate and important source for determining those prevailing

professional norms. Harmon v. Sharp, 936 F.3d 1044, 1058 (10th Cir.

2019); Hooks v. Workman, 689 F.3d 1148, 1201 (10th Cir. 2012).

The Warden attempts to minimize the value of the ABA Guidelines.

He argues that “the ABA Guidelines are merely guides to what is

reasonable, Strickland, 466 U.S., at 688, not “inexorable commands.

Bobby v. Van Hook, 558 U.S. 4, 8 (2009).” While the referenced passages

are correctly quoted, the Warden’s failure to acknowledge the limitations

of the holding in Van Hook is misleading. The Supreme Court looks

favorably on the Guidelines and Commentary for support of its decisions

to grant relief to defendants whose defense counsel failed to investigate

adequately. See Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v.

Smith, 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362 (2000). The

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Court did so in Van Hook as well.

Indeed, contrary to the Warden’s suggestion, the Supreme Court in

Van Hook did not minimize the value of the ABA Guidelines. The court

found only that it was error for the Sixth Circuit to judge “counsel’s

conduct in the 1980’s on the basis of [the] 2003 Guidelines--without even

pausing to consider whether they reflected the prevailing professional

practice at the time of the trial.” Van Hook, 558 U.S. at 8 (2009) (emphasis

added). The import of the Guidelines as a valued source of the prevailing

professional norms in capital cases remains. Van Hook merely clarified

that courts need to make an effort to corroborate that Guidelines adopted

years after trial adequately reflect the professional norms that existed at

the time of trial. Id.

The district court in Taylor’s case did precisely that. Specifically, the

court considered and applied the professional norms set forth in the 1989

ABA Guidelines in effect at the time of Taylor’s plea. In assessing the

reasonableness of trial counsel’s performance, the court also considered a

wide range of information beyond the 1989 Guidelines, including the Rule

23B testimony of trial counsel and of a legal expert on capital case

professional norms. (XX Appx. 5030-32.)

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The Warden also incorrectly asserts that the Guidelines provide no

guidance on what investigation counsel should do before a defendant

pleads guilty. (AOB 41.) In fact, the district court pointed out the

relevant guidance contained in the Commentary to ABA Guideline 11.4.1.

(XX Appx. 5031.) The district court even emphasized trial counsel’s “duty

to investigate the case before recommending that a guilty plea be taken”

and that counsel may not “sit idly by, thinking that investigation would

be futile,” concluding that “[w]ithout investigation, counsel’s evaluation

and advice amount to little more than a guess.” Id.

Trial counsel admitted that he failed to conduct an adequate

investigation, testifying in the Rule 23B hearing that he did not use a

ballistics expert or seek formal independent review of the state’s evidence.

(VI Appx. 1320-21.) The district court noted the import of the Rule 23B

hearing, which established trial counsel’s failure to investigate and his

uninformed assumption that Taylor was guilty of both crimes.

(XX Appx. 5018.)

The district court correctly found that trial counsel violated

prevailing professional norms by failing, without an informed basis, to

conduct an investigation of the State’s case.

The evidence of trial

counsel’s failure to investigate the case is irrefutable. As the district court

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noted, the failure to conduct an investigation in a capital case, without an

informed strategic justification based on an investigation, is an

“abdication of advocacy.” (XX Appx. 5033.) Citing Crisp v. Duckworth, the

district court found that “[e]ffective representation hinges on adequate

investigation and pre-trial preparation. . . . [Trial counsel] did neither.”

743 F.2d 580, 583 (7th Cir. 1984).

As a result of trial counsel’s failure to conduct reasonable

investigation into the State’s case, Taylor was not provided the

constitutionally

required

“minimally

competent

professional

representation” when deciding whether to plead guilty. See United States

v. Gray, 878 F.2d 702, 711 (3rd Cir. 1989) (“Where the deficiencies in

counsel’s performance are severe and cannot be characterized as the

product of strategic judgment, ineffectiveness may be clear. Thus, the

courts of appeals are in agreement that failure to conduct any pretrial

investigation generally constitutes a clear instance of ineffectiveness.”).

The district court found that Taylor “was in essence unrepresented

when he made the crucial decision to plead to two charges of first-degree

murder.” (XX Appx. 5034 (citing Taylor II, 156 P.3d at 75415 and Harries

Finding trial counsel deficiently performed, but no prejudice. 156 P.3d

at 755-56. Trial counsel was suspended from the practice of law as a

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v. Bell, 417 F.3d 631, 638 (6th Cir. 2005)).) The court further found that

“Taylor’s constitutional right to effective assistance of counsel was

violated when he pleaded guilty to two capital murders based on

inexcusably uninformed advice from counsel which then exposed him to

the possibility of execution.” (XX Appx. 5003.) “[T]he Sixth Amendment

imposes on counsel a duty to investigate, because reasonably effective

assistance must be based on professional decisions and informed legal

choices can be made only after investigation of options.” Strickland, 466

U.S. at 680. Trial counsel failed to take the steps necessary to make

informed decisions and advise Taylor accordingly.

As the district court explained, trial counsel “did nothing to dissuade

Mr. Taylor from believing that the bullets he fired had killed both

women,” conveying “his impression that the State’s evidence, which he

neither tested nor analyzed, overwhelmingly showed that Mr. Taylor was

guilty.” (XX Appx. 5034.) Trial counsel’s ignorance was reflected in his

testimony that at the time of the plea he believed the case against Taylor

direct result of his actions in Taylor’s trial. See https://bit.ly/3pJOrx9. See

also State v. Holland, 876 P.2d 357 (Utah 1994) (describing counsel’s

unethical representation of Taylor in detail and noting that it had

previously “entered an order disqualifying Levine from further

participation in the Taylor case on the ground that Levine had breached

the Utah Rules of Professional Conduct.” Id. at 358-59).

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“was ‘[v]ery, very strong,’ that ‘there was a lot of overwhelming physical

evidence,’ and that he discussed that with” Taylor. Id. Had counsel done

an investigation into the state’s case, there was a treasure trove of

readily-available exculpatory evidence. Indeed, it is now clear given the

district court’s finding of actual innocence, that what trial counsel did not

seek to discover included powerful evidence of innocence of the crimes to

which Taylor pled guilty.

“The longstanding test for determining the validity of a guilty plea

is ‘whether the plea represents a voluntary and intelligent choice among

the alternative courses of action open to the defendant.’” Hill, 474 U.S. at

56 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). When a

defendant enters a guilty plea, the Constitution requires that he do so

voluntarily, knowingly, intelligently, and with sufficient awareness of the

relevant circumstances and likely consequences of the plea.” United

States v. Ruiz, 536 U.S. 622, 629 (2002) (citing Brady v. United States, 397

U.S. 742, 748 (1970)). This critical requirement exists because a guilty

plea not only deprives a defendant of a trial, it also implicates important

constitutional rights. Id. It follows that where counsel does not provide

informed advice as a result of his failure to provide constitutionally

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adequate representation, the resulting guilty plea is unconstitutional.

As the court noted, trial counsel made the critical “mistake of

assuming the State’s evidence was conclusive proof of guilt.”

(XX Appx. 5024.) He did so because he did not conduct any meaningful

investigation.

The district court also explained the impact trial counsel’s deficient

investigation had on his ability to provide effective advice to his client:

[trial counsel] conveyed his view of the evidence to

Mr. Taylor, which included the conclusion that Mr.

Taylor had fired the bullets that killed both Ms.

Tiede and Ms. Potts. But [trial counsel] was

uninformed about the strength and nature of the

State’s evidence. His assessment of the case, which

he expressed to Mr. Taylor, misled Mr. Taylor. As

a result, Mr. Taylor was uninformed when he

decided to plead guilty.

(XX Appx. 5025.)

Trial counsel’s advice to Taylor was uninformed and compromised.

Without making an investigatory effort and including the results in the

decision-making discussions with Taylor, Taylor could not make a

knowing and voluntary decision. Under these circumstances, the district

court correctly concluded that Taylor’s plea was neither voluntary or

knowing.

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Trial Counsel’s Failure To Conduct An Investigation Of

The Prosecution’s Case, And To Meaningfully Advise

Taylor Regarding His Options, Had A Prejudicial

Impact On The Plea Process

Having

concluded

that

trial

counsel’s

representation

was

constitutionally deficient (XX Appx. 5028-36), the district court next had

to determine if trial counsel’s failures “affected the outcome of the plea

process.” Hill, 474 U.S. at 59. Looking to the ABA Guidelines and Hill,

the district court held that “Taylor was not aware that if he pled guilty,

he was foreclosing his chance to present strong evidence that he was not

guilty and, as a result, avoid conviction and the penalty of death.”

(XX Appx. 5036.)

“But for [trial counsel’s] uninformed advice and

substandard representation, there is a reasonable probability that Mr.

Taylor would not have pled guilty and would have insisted on going to

trial.” (XX Appx. 5037.)

Had trial counsel discovered the available exculpatory evidence,

which the district court heard in this case, he would have been able to

effectively advise Taylor as to his available options. By not doing so, he

deprived Taylor of the opportunity to take that strong evidence of

innocence into consideration. Taylor needed, and had the right to, the

opportunity to counter his belief, fostered by trial counsel, that he fired

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the fatal shots that caused the deaths of the victims.

Page: 65

This failure

certainly “affected the outcome of the plea process.” Hill, 474 U.S. at 59.

The core of the Warden’s arguments throughout these proceedings

is his belief that the outcome of any trial for Taylor is a foregone

conclusion; certainty that is premised solely on a theory of accomplice

liability. The Warden did not, and now cannot, argue with any degree of

credibility that the evidence against Taylor of capital murder as a

principal is overwhelming or uncontested.

Under his logic, if the

accomplice case is strong, there is no reason to go to trial. That is not the

law, nor does it reflect real life decisions made by informed defendants.

And, the Warden’s emphasis on predicting the outcome of any trial for

Taylor is misplaced. In Miller v. Champion, this Court stated:

Where a defendant alleges that his attorney’s

ineffective assistance led him to plead guilty, the

test for prejudice is whether he can show that he

would not have pled guilty had his attorney

performed in a constitutionally adequate manner.

It is not necessary for the defendant to show that he

actually would have prevailed at trial, although the

strength of the government’s case against the

defendant should be considered in evaluating

whether the defendant really would have gone to

trial if he had received adequate advice from his

counsel.

262 F.3d 1066, 1068-69 (10th Cir. 2001) (emphasis added). While Miller

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holds that evidence strength can be a factor, it is not necessarily

determinative in deciding whether a defendant would have gone to trial.

Any argument regarding the strength of the evidence against Taylor as a

principal has been shattered.

The Warden does not challenge that

conclusion, and the strength of the evidence against Taylor as an

accomplice is simply not relevant under Schlup.

Viewing this case through an accomplice-liability lens distorts the

applicable law. The presumption the Warden relies upon is that if Taylor

had gone to trial, or does go to trial in the future, he will be convicted of

capital murder as an accomplice. But in determining prejudice under

Strickland, that is not the question. “Where the alleged error of counsel

is a failure to investigate or discover exculpatory evidence, the

determination whether the error ‘prejudiced’ the defendant by causing

him to plead guilty rather than go to trial” is the critical question. Miller,

262 F.3d at 1072. Defendants often face the difficult choice of whether to

take a chance on going to trial where the risk of conviction is high or to

enter a plea. They are constitutionally allowed to make their own choice,

but to be constitutional that choice must be an informed one. Taylor’s

choice was not.

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In determining prejudice, it is also important to consider the

circumstances of the case. Subsequent to, but consistent with the holding

in Hill, the Supreme Court held that where “counsel’s alleged deficient

performance arguably led not to a judicial proceeding of disputed

reliability, but rather to the forfeiture of a proceeding itself,” there is a

presumption of prejudice. Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000).

In Lee, the Supreme Court considered a case in which counsel’s

“deficient performance arguably led not to a judicial proceeding of

disputed reliability, but rather to the forfeiture of a proceeding itself.” 137

S.Ct. at 1965 (quoting Flores-Ortega, 528 U.S. at 483). The court held:

When a defendant alleges his counsel’s deficient

performance led him to accept a guilty plea rather

than go to trial, we do not ask whether, had he

gone to trial, the result of that trial “would have

been different” than the result of the plea bargain.

That is because, while we ordinarily “apply a

strong presumption of reliability to judicial

proceedings,” “we cannot accord” any such

presumption “to judicial proceedings that never

took place.”

Lee, 137 S.Ct. at 1965 (quoting Flores-Ortega, 528 U.S. at 482-83.

The Lee court rejected, in all but limited circumstances not

applicable in Taylor’s case, the contention that in order to establish

prejudice in a guilty plea case, one must show that the defendant would

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have been better off going to trial. Lee rebuts the Warden’s arguments.

In this case, the district court focused on the charges to which Taylor

pled: capital murder as a principal. It considered the impact the strong

evidence of innocence of those charges would have had on Taylor, had he

had access to that information, when he made his decision to plead guilty.

The court noted that Taylor made his decision based on trial counsel’s

assessment of the case, thinking a guilty verdict was a foregone

conclusion. Had Taylor had access to the powerful evidence of innocence,

there is a reasonable probability that Taylor would have thought a trial

was a risk worth taking. The district court correctly concluded that

Taylor established prejudice based on trial counsel’s failures.

CONCLUSION

The district court properly vacated Mr. Taylor’s guilty plea and

death sentence. This Court should affirm the district court’s grant of a

conditional writ of habeas corpus.

REQUEST FOR ORAL ARGUMENT

Oral argument is warranted in this case because it involves a death

sentence and complex issues.

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Respectfully submitted,

DATED: January 4, 2021

By: /S/ Brian M. Pomerantz

BRIAN M. POMERANTZ

KENNETH F. MURRAY

Attorneys for Petitioner-Appellee

VON LESTER TAYLOR

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(B)(i)

This brief complies with the type-volume limitation of Fed. R. App.

P. 32(a)(7)(B)(i) because it contains 12,462 words, excluding the parts of

the brief exempted by Fed. R. App. P. 32(f). This brief also complies with

the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style

requirements of Fed. R. App. P. 32(a)(6), having utilized Century

Schoolbook font.

/S/ Brian M. Pomerantz

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CERTIFICATE OF DIGITAL SUBMISSION

THIS IS TO CERTIFY THAT:

(1)

All required privacy redactions have been made, and with the

exception of those redactions, every document submitted in digital form

or scanned PDF format is an exact copy of the hard-copy document filed

with the Clerk, and

(2)

The digital submissions have been scanned for viruses with the most

recent version of a commercial virus scanning program (McAfee Total

Protection Version 16.0) and, according to the program, are free of viruses.

/S/ Brian M. Pomerantz

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CERTIFICATE OF SERVICE

I certify that on January 4, 2021, I served the above APPELLEE’S

RESPONSE BRIEF on Mr. Andrew F. Peterson and Ms. Erin Riley by

electronic filing in the United States Court of Appeals for the Tenth

Circuit’s CM/ECF filing system in case no. 20-4039.

/S/ Brian M. Pomerantz

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Brian M. Pomerantz (NY Bar #4141024)

6351 Owensmouth Avenue, Suite 203

Woodland Hills, CA 91367

Telephone: (323) 630-0049

Brian@habeascounsel.com

Kenneth F. Murray (Ohio Bar #0002519)

316 East Mitchell Drive

Phoenix, AZ 85012

Telephone: (602) 684-7391

kfmurray2013@gmail.com

Attorneys for Petitioner

VON LESTER TAYLOR

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH

Case No. 2:07-CV-194 (TC)

Judge Tena Campbell

VON LESTER TAYLOR,

Petitioner,

DEATH PENALTY CASE

PETITIONER’S SUPPLEMENTAL

REPLY BRIEF ON ACCOMPLICE

LIABILITY ISSUES

SCOTT CROWTHER, Warden, Utah State

Prison

Respondent.

Hearing set for Oct. 25, 2016, at 10:00 am.

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TABLE OF CONTENTS

The Question Asked by the Court and the Responses of the Parties . . . . . . . . . . . . . . . . . 1

II.

The Flaws in Respondent’s Argument and Position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III.

Allowing Mr. Taylor an Opportunity to Establish a Miscarriage of Justice Based on

Actual Innocence Is Not an “Undeserved Windfall,” Nor Is it “Morally Absurd” . . . . . . 8

IV.

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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TABLE OF AUTHORITIES

FEDERAL CASES

Jackson v. Virginia,

443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Murray v. Carrier,

477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397(1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Bousley v. United States,

523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998) . . . . . . . . . . . . . . . . . . . . . . . 6, 9

Schlup v. Delo,

513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995) . . . . . . . . . . . . . . . . . . . . . passim

STATE CASES

D.B. v. State,

289 P.3d 459 (Utah 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

State v. Petry,

273 S.E.2d 346, 166 W. Va. 153 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

STATE STATUTES

Utah Code Ann. § 76-1-402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Utah Code Ann. § 76-2-202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

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The Question Asked by the Court and the Responses of the Parties

The parties disagree on the question presented by this Court for supplemental briefing.

During the June 9th proceeding, the Court stated:

I want briefing on whether in this case, whether the question of actual

or factual innocence is really futile because [Mr. Taylor] pled guilty

and he can’t meet the standard so why take any more evidence,

because legally it was satisfied by these charging documents and

Utah law and factually there is no question. . . . What I need is more

careful briefing, and this was good but there was a lot of it, but on

whether in my decision to grant or not grant a hearing on factual

innocence, the fact that he pled guilty to this in response to the

charge, whether that renders it moot because he pled and the

evidence could show it.

(Transcript of Hearing on June 9, 2016 (hereinafter “TR.”), at 114 (emphasis added).)

It is clear to Mr. Taylor that when the Court discussed “the fact that [Mr. Taylor] pled guilty

to this in response to the charge” and “because he pled and the evidence could show it” the “this”

and “it” terms used by the Court were referencing accomplice liability. The Court ordered briefing

seeking assistance from the parties on determining the precise charge to which Mr. Taylor entered

a plea and what could have been charged. The Court then asked if the conviction does encompass

accomplice liability, what effect, if any, would that have on a actual innocence analysis in this case

under Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995), e.g. would a Schlup

analysis be futile.

In his supplemental brief, Mr. Taylor cited to the Court’s discussion of the scope of the

requested briefing and offered his interpretation that the question the Court was asking was “whether

there is reason to take more evidence if, as Respondent argues, Utah’s laws and procedures, the

charging documents, and Mr. Taylor’s plea, makes it impossible for him to establish actual

innocence in his case.” (Dkt. 253 at 2.) But Respondent’s argument relies on false assumptions.

As a result, Respondent’s conclusion that Mr. Taylor can never establish actual innocence of his

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conviction is patently incorrect. That is because neither the Utah laws and procedures, nor the

circumstances of the plea, can be viewed to encompass a conviction of both capital murder and

accomplice liability capital murder.

Mr. Taylor believes that the initial prong of a Schlup analysis is to determine the offense of

conviction. Mr. Taylor submits that the offense of conviction is the critical issue; Respondent does

not. In fact, Respondent stated seven times in his supplemental brief that what Mr. Taylor was

convicted of is irrelevant to the Schlup actual innocence analysis. (See Dkt. 254 at 3, 14-17.) Mr.

Taylor cannot comprehend how the question of actual innocence can ever be determined without

reference to the offense of conviction. It seems a universal truth that one must first be found guilty

of an offense to be able to argue one is not guilty of that offense.

Mr. Taylor seeks an evidentiary hearing to establish that he is not guilty of intentional capital

murder. Respondent argues that a hearing is not needed because Mr. Taylor could be guilty of

another offense, namely accomplice liability. Respondent does not explain how the possibility of

being guilty of another offense precludes Mr. Taylor’s right to seek to establish his actual innocence

of his offense of conviction, namely capital murder.

Mr. Taylor pled to, and was convicted of, the offense of intentional capital murder.

Respondent has conceded that Mr. Taylor “did not specifically plead guilty only as an accomplice”

(Dkt. 254, at 16) and that “the State did not pursue a conviction based on accomplice liability.” Id.

at 14. These concessions are mere echoes of what was already patently clear: Mr. Taylor was only

charged with, only pled to, and was only convicted of, the principal offense of capital murder. Mr.

Taylor now seeks an evidentiary hearing so he can establish that he is actually innocent of the

principal offense of capital murder. Mr. Taylor and his counsel are flummoxed by Respondent’s

position that Mr. Taylor should not be granted an evidentiary hearing on actual innocence because

Mr. Taylor could have been convicted, if a host of speculative events ultimately took place, of an

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offense the State theorizes was encompassed by the principal offense of capital murder.

The Court has asked if it would be futile to hold an evidentiary hearing on actual innocence

under Schlup given the specific guilty plea and resultant conviction in this case. The question has

two critical components: (1) identifying the offense that was the subject of the plea and resultant

conviction, and (2) determining the effect, if any, of that conviction on the Schlup analysis. Instead

of answering the first critical component of this question, to what offense did Mr. Taylor plead and

of what offense was he convicted, Respondent argues that the answer is not relevant. Respondent

then summarily concludes that a Schlup hearing is not necessary because Mr. Taylor is, or could be,

guilty of some offense (namely accomplice liability capital murder), even if he did not know he pled

to that offense. By taking this position (what Mr. Taylor was convicted of is irrelevant, therefore,

there can be no Schlup analysis), Respondent has effectively refused to answer the question

presented by the Court.

II.

The Flaws in Respondent’s Argument and Position

In order to deny Mr. Taylor a hearing on actual innocence pursuant to Schlup, Respondent

needs this Court to determine that accomplice liability in Utah is not a separate offense from

principal liability, but is automatically included in Mr. Taylor’s underlying conviction. Mr. Taylor’s

Supplemental Brief established that accomplice liability is a separate offense and that a conviction

of a principal offense does not encompass a conviction of accomplice liability. The jury can convict

on one or the other. In response to the overwhelming case law presented by Mr. Taylor opposing

Respondent’s position, Respondent is now waffling on his clearly announced prior position before

this Court that one can never be charged separately as an accomplice in Utah. He now submits that

he “did not say that a defendant could never be charged as an accomplice.” (Response in Opposition

(hereinafter “Opp.”) at 12.) This concession defeats Respondent’s previous arguments that

accomplice liability can never constitute a separate, chargeable offense in Utah.

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Establishing a Schlup gateway so that an individual can pursue a miscarriage of justice

exception to any defaulted constitutional claim, requires the petitioner to first establish that he is

actually innocent of the offense for which he was convicted. To require a petitioner to establish that

he is actually innocent of another offense for which he could have been convicted (but one he has

not yet been convicted of) – if charged, and if tried and sufficient evidence presented, and if a jury

was properly instructed, and if a jury finding of guilt was obtained – is illogical and inconsistent with

the holding of Schlup. Moreover, it is inconsistent with American criminal justice values of due

process and fairness.

Having established that accomplice liability can be charged separately under Utah laws and

procedures, the primary question remains: To what offense did Mr. Taylor enter the plea for which

he was convicted? Clearly the answer is capital murder, not accomplice liability. Respondent has

stirred the debate over accomplice liability by claiming that despite never having been charged or

convicted as an accomplice, this Court must believe that Mr. Taylor effectively pled to accomplice

liability. Respondent argues that while “Taylor complains that he ‘was not provided specific, or

even adequate, notice that the State was pursuing a conviction based on accomplice liability[]’ (doc.

246, p. 11)[,] [t]his is irrelevant, because the State did not pursue a conviction based on accomplice

liability.” (Opp. at 14, emphasis added.) By admitting that the State did not pursue an accomplice

liability conviction, Respondent concedes that Mr. Taylor did not plead to, and was not convicted

of, accomplice liability. That concession should end this detour and return us to our right path.

But despite the admission, Respondent wants this Court to deny a hearing because of what

the State could have done if the case had gone to trial. Respondent’s arguments are replete with

speculation and revisionism. “[I]f Taylor had gone to trial, and if evidence was presented that

showed Taylor was guilty as an accomplice, the State could have asked for a jury instruction on

accomplice liability.” (Opp. at 14, emphasis added.) In this, a death penalty case, the State asks this

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Court to deny examination of the facts based on three levels of conjecture.

In mantra like fashion, Respondent states that Mr. Taylor cannot benefit from Schlup because

he is guilty as an accomplice. (Opp. at 2-3.) Respondent argues further that Mr. “Taylor cannot

establish factual innocence because, at the very least, he is guilty as an accomplice and could have

been sentenced to death.” (Opp. at 2.) This “woulda, coulda, shoulda” argument that Respondent

has made so many times before is not supported by either legal authority or logic. Mr. Taylor was

not charged as an accomplice. Despite this fact, and without authority, Respondent treats

accomplice liability culpability as a lesser included offense to capital murder.

Accomplice liability is a separate charge for which Mr. Taylor was not convicted. As Mr.

Taylor indicated in his Supplemental Brief, accomplice liability requires proof of elements separate

and apart from the associated principal offense.

In D.B. v. State [289 P.3d 459, 471 (Utah 2012)], the Utah Supreme

Court concluded that “[c]harging an individual as a principal,

standing alone,1 does not provide adequate notice that the State is

actually pursuing an accomplice liability theory.” D.B., 289 P.3d at

471. . . . An individual who commits an offense with another is not

automatically, or even necessarily, liable as both a principal and as

an accomplice. D.B., 289 P.3d at 465. This is because Utah Code

Ann. § 76-2-202 “requires conduct different from direct commission

of an offense before a defendant incurs accomplice liability.” Id.

(Dkt. No. 253 at 12.)

Respondent argues that Mr. Taylor’s claim that it is Respondent’s position that it is

“impossible to charge someone with accomplice liability in the state of Utah” constitutes a

misrepresentation of what was said during the June 9, 2016, hearing. (Opp. at 11-12.) Specifically,

Respondent claims that Mr. Taylor left out the crucial language “standing alone” in describing

Respondent’s position. Mr. Taylor did not offer a specific quotation from the transcript, nor does

he have any interest in engaging in semantical gymnastics with Respondent. Mr. Taylor has merely

described his interpretation of Respondent’s statement before this Court to be an unequivocal

statement that one cannot be charged separately as an accomplice in Utah. Additionally, in using

this quotation from D.B. v. State, Mr. Taylor clearly presented the Court with the precise “standing

alone” language Respondent claims he left out of his arguments. As stated in the earlier brief, the

case law Respondent cites in this context actually supports Mr. Taylor’s position, not Respondent’s.

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Because a conviction for accomplice liability under Utah Code Ann. § 76-2-202 “requires

conduct different from direct commission of an offense,” accomplice liability cannot be a lesser

included offense of the principal offense, in this case capital murder. Mr. Taylor has not found any

authority indicating that accomplice liability is considered a lesser included offense to capital

murder under Utah Code Ann. § 76-1-402, which defines lesser included offenses. Utah Code states

in pertinent part that, “[a] defendant may be convicted of an offense included in the offense charged

but may not be convicted of both the offense charged and the included offense.” Utah Code Ann.

§ 76-1-402(3) (emphasis added). Mr. Taylor was convicted only of capital murder based on his plea.

Under the laws of Utah he was not, and could not have been, convicted of both capital murder and

accomplice liability based on his plea. Respondent’s argument that Mr. Taylor’s plea to capital

murder encompasses a conviction to accomplice liability is an impossibility under the laws of Utah.2

In addition to his erroneous argument that Mr. Taylor’s plea and conviction encompass both

the principal offense and accomplice liability, making an actual innocence hearing futile,

Respondent also argues that Schlup and Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140

L. Ed. 2d 828 (1998) hold that “[a]ctual innocence under the Schlup standard ‘means factual

innocence, not mere legal insufficiency.’” (Opp. at 3.) Mr. Taylor does not disagree with this

proposition, but he submits that it is Respondent who is confusing proof of actual innocence with

legal sufficiency. Respondent argues that there is sufficient evidence to possibly convict Mr. Taylor,

if he were to be tried before a jury. Of course, the theoretically sufficient evidence could only be

Petitioner’s counsel have spent a considerable amount of time debating the precise scope

of Respondent’s arguments. Respondent’s frequently repetitious, circular, and sometimes selfcontradictory pleading, seems to argue both that accomplice liability is a lesser included offense that

Mr. Taylor pled guilty to and that it is a separate offense that he could have been convicted of if he

had been charged with it, therefore rendering any inquiry into his actual conviction moot.

Petitioner’s counsel were ultimately unable to definitively determine what exactly Respondent is

arguing.

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sufficient to convict Mr. Taylor of a different offense (accomplice liability) than his offense of

conviction. The Schlup procedural bar bypass relates to the offense of conviction, not to the legal

sufficiency of evidence relating to an offense that is a lesser or related offense to the offense of

conviction.

A review of the holding in Schlup reveals yet another error in Respondent’s analysis. In

adopting the standard from Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397

(1986), instead of the legal sufficiency standard from Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979), the court in Schlup stated:

The Jackson standard, which focuses on whether any rational juror

could have convicted, looks to whether there is sufficient evidence

which, if credited, could support the conviction. The Jackson

standard thus differs in at least two important ways from the Carrier

standard. First, under Jackson, the assessment of the credibility of

witnesses is generally beyond the scope of review. In contrast, under

the gateway standard we describe today, the newly presented

evidence may indeed call into question the credibility of the

witnesses presented at trial. In such a case, the habeas court may

have to make some credibility assessments. Second, and more

fundamentally, the focus of the inquiry is different under Jackson

than under Carrier. Under Jackson, the use of the word “could”

focuses the inquiry on the power of the trier of fact to reach its

conclusion. Under Carrier, the use of the word “would” focuses the

inquiry on the likely behavior of the trier of fact.

Indeed, our adoption of the phrase “more likely than not” reflects this

distinction. Under Jackson, the question whether the trier of fact has

power to make a finding of guilt requires a binary response: Either

the trier of fact has power as a matter of law or it does not. Under

Carrier, in contrast, the habeas court must consider what reasonable

triers of fact are likely to do. Under this probabilistic inquiry, it

makes sense to have a probabilistic standard such as “more likely

than not.” Thus, though under Jackson the mere existence of

sufficient evidence to convict would be determinative of petitioner’s

claim, that is not true under Carrier.

Schlup, 513 U.S. at 330 (emphasis added).

Respondent has focused on what could occur, not on what would occur, given the available

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evidence, including Mr. Taylor’s new evidence of innocence. Under Schlup, the mere existence of

sufficient evidence that could possibly convict Mr. Taylor of a different offense than his offense of

conviction is irrelevant.

In any criminal prosecution, it is the State that holds all the cards. The prosecution decides

what to charge, whether to offer a plea, and if offering a plea, what the parameters of that

arrangement are. Yet, despite having unfettered power to have crafted the plea however it liked, the

State now asks this Court to expand on the prosecution’s deal because, in 20/20 hindsight, it was not

broad enough to encompass the full range of offenses for which the Office of the Attorney General

wishes Mr. Taylor had actually been charged with and convicted. That is a heavy weight that

Respondent seeks to add to the prosecution’s side of the scale of justice.

III.

Allowing Mr. Taylor an Opportunity to Establish a Miscarriage of Justice Based on

Actual Innocence Is Not an “Undeserved Windfall,” Nor Is it “Morally Absurd”

Having failed to offer compelling arguments that the law in Utah requires the Court to accept

the proposition that Mr. Taylor’s current conviction is for both capital murder and accomplice

liability for capital murder, Respondent now changes course and submits that allowing an

evidentiary hearing in this case would be an “undeserved windfall” and a “moral absurdity.” (Opp.

at 3-4.) Respondent submits that if Mr. Taylor had gone to trial, and if he was convicted of either

the principal offense (capital murder) or accomplice liability, he would not be entitled to an

evidentiary hearing. (Opp. at 3.) That is patently untrue. If he had gone to trial, for each of the two

victims, Mr. Taylor could only have been convicted of one offense (capital murder or accomplice

liability), not both. If he had been convicted of capital murder, the same offense to which he entered

a plea of guilty and currently stands convicted, he would be entitled to an evidentiary hearing on

actual innocence if he presented constitutionally sufficient evidence meeting the Schlup standard for

granting a hearing. Under either circumstance, conviction of capital murder at trial or based on a

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plea, he is entitled to such a hearing under Schlup and Bousley.

Mr. Taylor fails to see where he is the beneficiary of a “windfall.” If there is a windfall, it

is the State’s. Mr. Taylor pled guilty after he was falsely led by the State and his trial counsel to

believe he killed someone when he did not. Mr. Taylor has challenged the constitutionality of his

conviction and sentence, in part based on the fact that his disinterested trial counsel did not conduct

a sufficient investigation, did not accurately inform him regarding his plea, and handed him over to

the State on a silver platter on undeserving charges of intentional murder. Given the procedural

posture of this case, and the current laws governing habeas corpus review, Mr. Taylor has a

constitutional right to have an opportunity to establish his innocence of capital murder (his offense

of conviction) so that his constitutional claims can be addressed on the merits.

The State relies on State v. Petry, 273 S.E.2d 346, 166 W. Va. 153 (1980) in support of his

position regarding the “moral absurdity” of a defendant being “able to successfully defend against

an indictment as a perpetrator by proving she was an aider and abettor.” Setting aside the rich irony

of the State citing to a West Virginia state case after so often scoffing at Petitioner’s citations to

Federal Courts of Appeal other than the Tenth Circuit, in Ms. Petry’s case the court actually reversed

the circuit court and remanded the case “with directions to enter a judgment of acquittal” because

the state’s common law “required that aiders and abettors be indicted as such.” Petry, 273 S.E.2d

at 352. Thus, if Petry has any persuasive value here, it is to support Mr. Taylor’s arguments.

The moral absurdity discussed in Petry referenced the “ludicrous point . . . that the defendant

can successfully defend against an indictment as a perpetrator by proving she was an aider and

abettor and vice versa.” Id., 273 S.E.2d at 349. Mr. Taylor is doing no such thing. It is the State

that is obsessed with Mr. Taylor’s alleged accomplice liability. Mr. Taylor is not seeking to avoid

conviction by arguing he was an accomplice, he is challenging the conviction he has. This is

precisely what Schlup requires.

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IV.

Conclusion

Mr. Taylor has shown that the arguments made by Respondent in the prior hearing before

this Court regarding the nature of Mr. Taylor’s conviction and its effect on the Schlup analysis in

this case are incorrect and inapplicable. Therefore, for the reasons articulated in his previous

pleadings and at the June 9, 2016 argument before this Court, an evidentiary hearing pursuant to

Schlup should be granted.

DATED: September 21, 2016

Respectfully submitted,

By:

/S/ Brian M. Pomerantz

BRIAN M. POMERANTZ

By:

/S/ Kenneth F. Murray

KENNETH F. MURRAY

Attorneys for Petitioner

VON LESTER TAYLOR

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CERTIFICATE OF SERVICE

I hereby certify that on September 21, 2016, I electronically filed the foregoing document

described as PETITIONER’S SUPPLEMENTAL REPLY BRIEF ON ACCOMPLICE

LIABILITY ISSUES with the Clerk of the Court using the CM/ECF system which sent notice of

said filing to:

Andrew Peterson

Erin Riley

Assistant Solicitors General

Sean D. Reyes

Utah Attorney General

160 East 300 South, 6th Floor

P.O. Box 140854

Salt Lake City, Utah 84114-0854

/S/ Brian M. Pomerantz

BRIAN M. POMERANTZ

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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.