Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS January 26, 2023 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ TABERON DAVE HONIE, Petitioner - Appellant, v. No. 19-4158 ROBERT POWELL, Warden, Utah State Prison, Respondent - Appellee. _________________________________ Appeal from the United States District Court for the District of Utah (D.C. No. 2:07-CV-00628-JAR-EJF) _________________________________ Jon M. Sands, Federal Public Defender (Therese M. Day and Eric Zuckerman, Assistant Federal Public Defenders, with him on the briefs), Phoenix, Arizona, for Petitioner- Appellant. Melissa Holyoak, Utah Solicitor General (Andrew F. Peterson, Assistant Solicitor General, and Sean D. Reyes, Utah Attorney General, on the brief), Salt Lake City, Utah, for Respondent-Appellee. _________________________________ Before HOLMES, Chief Judge, LUCERO, Senior Circuit Judge, and PHILLIPS, Circuit Judge. _________________________________ PHILLIPS, Circuit Judge. _________________________________ One evening twenty-four years ago, Taberon Honie called his ex-girlfriend on the telephone, demanded that she immediately visit him, and threatened to kill Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 2 several of her family members if she didn’t. When she went to work instead, Honie made good on his threat, brutally murdering her mother hours later. As Honie tried to leave through the garage at the murder scene, police noticed blood covering his hands and forearms and asked him about it. Honie confessed to the murder and kept confessing the next day. About two weeks before trial, following his lawyer’s advice, Honie waived his Utah statutory right to jury sentencing in favor of sentencing by the trial judge. But years later, Honie alleged (1) that soon after he waived jury sentencing, a fellow inmate told him that he had made a mistake in doing so; (2) that a week before trial, Honie asked his trial counsel to withdraw the waiver; and (3) that counsel told him it was too late. During the defense’s opening statement at the murder trial, Honie’s counsel conceded that Honie was guilty of the aggravated-murder charge, telling the jury that the case would be about punishment. After hearing the evidence, a Utah state jury convicted him of aggravated murder. Then after considering the parties’ evidence presented at the penalty phase, the trial judge imposed a sentence of death. On direct appeal, the Utah Supreme Court upheld the conviction and sentence. In seeking state postconviction relief, Honie argued under the Sixth Amendment that his trial counsel performed deficiently in two ways: (1) by inadequately explaining his right to jury sentencing, and (2) by not following his direction to retract his waiver. The Utah Supreme Court rejected Honie’s first claim, concluding that Honie’s counsel had performed competently. On the second, the 2 Appellate Case: 19-4158 Document: 010110804325 Date Filed: 01/26/2023 Page: 3 court didn’t rule on the deficient-performance question. For both claims, the court ruled that Honie had suffered no prejudice. In evaluating Honie’s ineffective-assistance-of-counsel claim, the Utah Supreme Court began by reciting the general standard from Strickland v. Washington, 466 …
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