Gardner v. Galetka

FILED
United States Court of Appeals
Tenth Circuit

June 19, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RONNIE LEE GARDNER,

Petitioner-Appellant,
v. No. 07-4104
HANK GALETKA, Warden of the
Utah State Prison,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:95-CV-846-TC)

Andrew Parnes and W. Keith Goody, Attorneys for Petitioner-Appellant.

Thomas B. Brunker, Assistant Attorney General (Erin Riley, Assistant Attorney
General, and Mark Shurtleff, Utah Attorney General with him on the briefs), Salt
Lake City, Utah, for Respondent-Appellee.

Before McCONNELL, TYMKOVICH and GORSUCH, Circuit Judges.

McCONNELL, Circuit Judge.

While Petitioner-Appellant Ronnie Lee Gardner was being escorted from

prison to the state district court in Salt Lake City in 1985 for a hearing on a charge

of second degree murder, an accomplice handed him a gun. At point-blank range,
Mr. Gardner shot Michael Burdell, an attorney standing inside the court’s archives

room. Mr. Burdell died, and Mr. Gardner was convicted of first degree capital

murder and sentenced to death.

I. BACKGROUND

Our recitation of the facts and lengthy case history is based largely on

United State Magistrate Judge Samuel Alba’s thorough Report and

Recommendation, which was adopted with only slight modifications by the Utah

District Court in Gardner v. Galetka, No. 2:95-CV-846-TC, 2007 U.S. Dist.

LEXIS 25643 (D. Utah Apr. 5, 2007); see also State v. Gardner, 789 P.2d 273

(Utah 1989) (Gardner I) (summarizing the facts of this case).

A. The Crime

On April 2, 1985, guards transported Mr. Gardner from the maximum

security unit of the Utah State Prison to the Metropolitan Hall of Justice in Salt

Lake City to appear at a hearing on a second degree murder charge. As he entered

the basement lobby of the courthouse, a female accomplice handed him a gun. Mr.

Gardner pointed the gun at his guards, who quickly retreated to the parking lot.

During this encounter, he exchanged gunfire with one of the guards and was shot,

apparently in the chest.

Looking for a way out of the building, a wounded Mr. Gardner entered the

archives room. A court clerk, a prison officer, and three attorneys were inside.

Mr. Gardner said he had been shot, then walked back out of the archives room.

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When Mr. Gardner went back into the lobby, two of the attorneys, Michael Burdell

and Robert Macri, attempted to hide behind the open door to the archives room.

Mr. Gardner reentered the archives room with his gun held in front of him. He

saw the two attorneys hiding behind the door and stopped in front of them.

Standing about one-and-a-half to two feet in front of Mr. Macri, Mr. Gardner

tightened his grip on the gun and pointed it at him. Mr. Burdell said, “Oh, my

God.” Mr. Gardner said, “Oh Fu–” and then moved the gun away from Mr. Macri

to Mr. Burdell. Mr. Macri fled out into the lobby and Mr. Gardner fatally shot Mr.

Burdell in the head after what one witness described as a “definite pause.” Vol.

XLVII, State Ct. Tr. 942. Mr. Gardner then fired at Mr. Burdell a second time.

Mr. Gardner forced the prison officer in the archives room to accompany

him out to a stairwell leading to the second floor. While Mr. Gardner crossed the

lobby, a uniformed bailiff, Nick Kirk, came down the stairs to investigate the

commotion. Mr. Gardner shot and seriously wounded Mr. Kirk and then

proceeded up the stairs. On the next floor, Mr. Gardner forced a vending machine

serviceman to accompany him outside of the building. As soon as Mr. Gardner

was outside, the serviceman broke free and dived through a teller’s window inside

the building. In the parking lot and surrounded by police, Mr. Gardner threw

down his gun and surrendered.

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B. Trial Proceedings and Direct Appeal

In 1985, Mr. Gardner was tried before a jury in the Third Judicial District

Court in Salt Lake County, Utah. The jury convicted Mr. Gardner of first degree

murder, attempted first degree murder, aggravated kidnaping, escape, and

possession of a dangerous weapon by an incarcerated person. Only the first of

these convictions is now at issue. The sole theory of the defense as to this charge

was that he lacked the intent to kill Mr. Burdell–that the killing was either an

accident, or at most, done with reckless disregard to human life.

On direct appeal, Mr. Gardner made the following claims of error: (1) the

district court judge abused his discretion in denying him a change of venue, (2) the

judge should have recused himself, (3) the death penalty laws in Utah are

unconstitutional, (4) the use of his prior felony as an aggravating circumstance

violated his due process rights, (5) he was improperly denied a challenge for

cause, (6) excessive security in the courtroom denied his right to a fair trial, (7)

the judge violated his Sixth Amendment right to confrontation when he cut off his

recross-examination of a witness, (8) corrections officer Wayne Jorgensen testified

about statements taken in violation of Miranda and Massiah, (9) the district court

gave an erroneous jury instruction on manslaughter, (10) the district court gave an

erroneous oral instruction to the jury regarding the order it should consider the

various offenses, (11) the district court improperly denied his motion for directed

verdict, (12) the district court erred in admitting evidence of a previous homicide

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he had committed as an aggravating factor, (13) his sentence was disproportionate

compared to those given in similar cases, (14) the government engaged in

prosecutorial misconduct, and (15) his counsel was ineffective in failing to object

to the testimony of Officer Jorgensen, Dr. Heinbecker, and Mr. Fuchs. The Utah

Supreme Court denied relief on all claims, Gardner I, 789 P.2d at 276, and the

United States Supreme Court denied Mr. Gardner’s petition for a writ of certiorari.

494 U.S. 1090 (1990).

C. State Post-Conviction Proceedings

Mr. Gardner then sought post-conviction relief in state court. The Utah

district court addressed all of his claims on the merits, and ruled that Mr. Gardner

had been denied effective assistance of counsel both during the penalty phase and

on appeal. Gardner v. Holden, 888 P.2d 608, 617, 619 (Utah 1994) (Gardner II).

According to the court, trial counsel did not give a defense psychiatrist enough

time to test and evaluate Mr. Gardner, and appellate counsel did not act as

independent counsel and failed to adequately research and brief issues on appeal.

Id. at 619, 620. The court held that these deficiencies required a new penalty

hearing and a new appeal. It rejected Mr. Gardner’s other claims. Both parties

appealed.

The Utah Supreme Court reversed the district court’s holding that Mr.

Gardner received ineffective assistance of counsel, and affirmed its rejection of

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Mr. Gardner’s other claims. Gardner II, 888 P.2d 608. First, the court rejected

six claims that could have been raised on direct appeal but were not:

(1) error by the trial court in admitting hypnotically enhanced
testimony; (2) error by the trial court in not advising Gardner of his
right to remain silent and not testify; (3) violation of Gardner’s right
to be present at all the hearings in his case; (4) consideration by the
jury of impermissible information about the victim; (5) failure to
instruct the jury on all the statutory mitigating circumstances in the
penalty phase; and (6) failure to instruct the jury in the penalty phase
that the existence of aggravating factors had to be found beyond a
reasonable doubt before they could be considered in deciding to
impose the death penalty.

Id. at 614.

The court summarily rejected four of Mr. Gardner’s claims of

ineffective assistance during the guilt phase. First, the court held that Mr.

Gardner’s claim that counsel were ineffective because he was coerced to

testify was addressed, in essence, on direct appeal when the court rejected

Mr. Gardner’s assertion that admitting his prior inconsistent statements

violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Id. at

615. Second, Mr. Gardner’s claim that his counsel were ineffective because

they elicited testimony from him about his past convictions of violent

crimes was disposed of when the court held on direct appeal that it was error

to admit the evidence of his other violent crimes but not prejudicial. Id. at

616. Third, Mr. Gardner’s claim that counsel were ineffective in failing to

request a bifurcated trial was essentially the same as the claim raised and

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addressed on direct appeal: whether it was error not to hold a bifurcated

hearing. Id. Finally, the court held that Mr. Gardner’s claim that trial

counsel were ineffective because they failed to clarify for the jury that Mr.

Gardner was shot in the chest and lung rather than in the shoulder was

frivolous. Id.

The Utah Supreme Court addressed Mr. Gardner’s remaining claims on the

merits. The court reversed the district court’s holding as to ineffective assistance

of trial counsel at the penalty phase, holding that Mr. Gardner was not prejudiced

by counsel’s failure to give Dr. Heinbecker, a defense psychologist, enough time

to prepare before the penalty phase. Id. at 619. While the district court ruled that

trial counsel had a conflict of interest but that Mr. Gardner waived his right to

raise any such conflict, the Utah Supreme Court held that he was not denied

effective assistance on account of any conflicts of interest with his trial attorneys.

Id. at 620–621. The Utah Supreme Court also reversed the district court’s holding

that appellate counsel had failed to research and investigate the trial record for

appealable issues, concluding that “habeas counsel . . . apprised [the court] of no

issues that should have been raised on the first appeal.” Id. at 620. The court held

that it did not condone appellate counsel’s preparation techniques, but no prejudice

resulted therefrom. Id. The court affirmed the district court’s holding that Mr.

Gardner’s appellate counsel lacked any conflicts of interest in representing him.

The court also rejected Mr. Gardner’s claim that the trial court’s failure to appoint

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expert witnesses and an investigator at the state’s expense violated his right to

effective assistance of counsel, due process, meaningful access to the courts, and

equal protection. Id. at 622–23.

Again, the United States Supreme Court denied review. 516 U.S. 828

(1995). Ten years had passed since Mr. Gardner’s crime and conviction.

D. Federal Habeas Proceedings

In 1997, Mr. Gardner filed a petition for writ of habeas corpus in the United

States District Court for the District of Utah. Two years after filing his habeas

petition, Mr. Gardner sought to amend his petition to raise a new ineffective

assistance claim based on appellate counsel’s failure to object to the jury

instruction that defined the meaning of the term “knowingly.” As discussed

below, this instruction was incorrect because it addressed elements of the

definition in the disjunctive rather than the conjunctive. This claim had not been

raised in state court on direct appeal or during the state post-conviction

proceedings. The district court allowed Mr. Gardner to amend his petition, but

held the added claim in abeyance until he had exhausted state avenues for relief on

the claim. Accordingly, Mr. Gardner filed a second petition for post-conviction

relief in state court.

While the jury instruction claim proceeded in state court, in 2003 the

magistrate judge issued a report and recommendation addressing and rejecting Mr.

Gardner’s other habeas claims. The district court adopted the recommendation

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with slight modifications. The court rejected all of Mr. Gardner’s ineffective

assistance claims on various grounds. The court did not address the deficiency

prong of Mr. Gardner’s ineffective assistance claims based on his counsel’s failure

to object to Officer Jorgensen’s testimony and failure to fully prepare and present

mental health evidence at the guilt phase, instead holding there was no prejudice.

The court held that Mr. Gardner failed to establish that his trial counsel had a

conflict of interest. Moreover, it was not unreasonable for counsel to have Mr.

Gardner testify at the guilt phase, nor was it unreasonable for counsel to rely on

Mr. Barton’s examination of the gun. Finally, the court rejected as unsupported

Mr. Gardner’s claims of ineffective assistance for stipulating to his prior

convictions and failing to request a bifurcated proceeding.

As to his counsel’s performance at the penalty phase, the court held that

they acted deficiently in failing to prepare and present mental health evidence, but

that no prejudice resulted. The court also rejected Mr. Gardner’s ineffective

appellate counsel claim, finding that there was no conflict of interest and that none

of the issues they failed to raise were meritorious.

The court then addressed Mr. Gardner’s remaining claims. The court held

that Mr. Gardner failed to establish prejudice resulting from the judge’s denial of

his motion to change venue, the admission of Mr. Macri’s post-hypnosis

testimony, or the decision not to bifurcate the trial. The court also rejected Mr.

Gardner’s claims concerning judicial recusal, excessive security, prosecutorial

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misconduct, limitation of cross-examination, notification of the right not to testify,

a lesser included offense instruction, exclusion of mitigating evidence during the

penalty phase, a jury instruction about mitigating circumstances and aggravation

proof, the alleged presumption of death, and the alleged failure to narrow the class

of people eligible for the death penalty.

Back in state court, the Utah district court held that Mr. Gardner’s belated

claim of appellate ineffectiveness based on the faulty jury instruction was

procedurally barred. The Utah Supreme Court affirmed. Gardner v. Galetka, 94

P.3d 263 (Utah 2004) (Gardner III). On return to federal court, the district court

disagreed, holding that the claim was not procedurally barred; however, the court

denied this claim for lack of prejudice. Gardner, 2007 U.S. Dist. LEXIS 25651, at

*30-31. Mr. Gardner timely appealed both the order rejecting his claim of

appellate ineffectiveness based on the faulty jury instruction and the order

rejecting all other claims. At this point, twenty-two years had passed since his

1985 crime and conviction.

II. DISCUSSION

Since Congress’s 1986 revision of the standards applicable to federal habeas

review of state court convictions, the Anti-terrorism and Effective Death Penalty

Act (“AEDPA”), the role of the federal courts has become that of a back-stop or

safety net to ensure that state courts applied the constitutional standards in effect

at the time (as enunciated by the Supreme Court) and did so reasonably. Habeas

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review is no longer an occasion for refinement or modification of constitutional

principles or for federal court second-guessing of state court application of

constitutional law, so long as the state court addressed the merits of any properly

presented federal constitutional claim, applied correct standards, and reached a

decision that is within the zone of reasonableness. Under this statutory

framework, a state prisoner seeking federal habeas review is entitled to relief only

if he can demonstrate that the state adjudication on the merits “(1) resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law as determined by the Supreme Court of the United States;

or (2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(1) and (2). Unless otherwise stated below, we review Mr.

Gardner’s claims under this standard of review. Our review of decisions by the

federal district court on questions of law is de novo; our review of factual

findings, if any, is for clear error. United States v. Sims, 428 F.3d 945, 960 (10th

Cir. 2005).

A. Ineffective Assistance at Guilt Phase

Mr. Gardner’s sole defense at the guilt phase was that he lacked the intent to

kill Mr. Burdell. He argued that the killing was either an accident, or at most,

done with reckless disregard to human life. He now contends that his counsel was

unconstitutionally deficient in four areas in making this argument at trial.

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1. Failure to Adequately Investigate Mr. Gardner’s Mental Health

Prior to the guilt phase of the trial, defense counsel engaged a psychologist,

Dr. Rindflesh, to examine Mr. Gardner. The examination took an hour and a half.

See Mag. Rep. 63. Dr. Rindflesh’s subsequent report indicated that there were no

signs of a major psychological disorder now or in the past, suggesting further

investigation would be fruitless. Id. at 73. But see id. at 74 (noting that Dr.

Rindflesh wrote in his report, “Perhaps an interview in a more open setting will be

possible in the future,” suggesting that another examination might have been

preferable). Mr. Gardner argues that trial counsel failed to undertake a sufficient

investigation of his mental health issues to support his lack of intent defense.

In his state post-conviction petition, Mr. Gardner argued that his counsel

failed to adequately investigate and present evidence that he had been shot in the

chest rather than in the shoulder, and to present evidence of the wound’s potential

effect on his mental state. Gardner II, 888 P.2d at 616. The court rejected this

claim as frivolous. Id. In his federal habeas petition, Mr. Gardner argued that his

counsel was ineffective for inadequately investigating both ballistics and mental

health evidence in preparation for the guilt phase. The magistrate judge rejected

his argument, finding that defense counsel’s reliance on Mr. Barton’s examination

of the gun was not deficient, and even if counsel’s failure to investigate Mr.

Gardner’s mental health more fully was deficient, it was not prejudicial. Mr.

Gardner objected to the magistrate judge’s finding that his counsel at the guilt

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phase adequately investigated the defense that Mr. Gardner did not intend to kill

Mr. Burdell. This objection to the magistrate judge’s report, however, focused

solely on his counsel’s failure to adequately investigate the murder weapon. Thus,

Mr. Gardner did not object to his counsel’s failure to investigate his mental health

in preparation for the guilt phase. Because Mr. Gardner failed to make this

objection to the magistrate judge’s report, this claim has been waived and will not

be considered. See Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008)

(applying the firm waiver rule).

Even if Mr. Gardner had properly raised this issue in district court, we

would conclude that his counsel was not constitutionally deficient. After all, a

psychologist did evaluate Mr. Gardner, albeit for a short time, and his report

indicated that he suffered from no major psychiatric disorder. Mag. Rep. 73; see

Bell v. Thompson, 545 U.S. 794, 809–10 (2005) (stating it would be an “uphill

battle” for a defendant to show the need for further mental health investigation

when two experts had concluded he was not mentally ill); Wilson v. Sirmons, 536

F.3d 1064, 1089 (10th Cir. 2008) (“[I]n many situations, the expert will know

better than counsel what evidence is pertinent to mental health diagnoses and will

be more equipped to determine what avenues of investigation are likely to result in

fruitful information”). Nothing in Dr. Rindflesh's report indicated that further

evaluation would result in evidence supporting Mr. Gardner's insanity defense.

While Dr. Rindflesh suggested the possibility of “an interview in a more open

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setting” sometime in the future, he indicated that any additional interviews would

help him better understand only Mr. Gardner's impulsiveness and ability to feel

remorse, neither of which would shed light on whether Mr. Gardner understood

what he was doing when he shot Mr. Burdell. Under these circumstances, we

cannot regard counsel’s failure to pursue this course as so “completely

unreasonable,” Wilson, 536 F.3d at 1083, as to be constitutionally deficient. After

all, there were substantial strategic reasons not to pursue this line of defense

before the jury: it would have opened the door to damaging evidence regarding the

violent acts he engaged in during prior offenses while uncontestedly in control of

his faculties. This suggests that defense counsel made an objectively reasonable

strategic decision in not investigating further or presenting psychological evidence

at trial.

Moreover, even if defense counsel were deficient in not having a more

elaborate evaluation conducted, no prejudice resulted from his failure to

investigate further. A psychologist who later examined Mr. Gardner, Dr.

Heinbecker, testified that Mr. Gardner’s psychological state might lead him to act

on “automatic pilot” during stressful situations. Mag. Rep. 69. Such testimony

might support an irresistible impulse defense, but Utah does not recognize such a

defense. See State v. Herrera, 993 P.2d 854, 861–62 (Utah 1999) (noting that a

mental disorder serves as a defense to a murder only if it prevents a person from

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understanding that he is killing a human being). Thus, under these circumstances,

defense counsel likely was not deficient, and even if he was, no prejudice resulted.

2. Failure to Present Ballistics Evidence

Mr. Gardner claimed in the state court post-conviction proceedings that his

counsel was ineffective for failing to offer evidence that would have cast doubt on

whether he had intended to kill Mr. Burdell. His theory was that at the time he

pulled the trigger on Mr. Burdell, he was in shock as a result of having been shot

by one of the courthouse guards. Trial counsel was ineffective, he argued, because

counsel implied to the jury that Mr. Gardner had been shot in the shoulder, when

in fact he suffered much more serious wounds to his chest and lungs. Mr.

Gardener contended that an accurate account of his injuries would have better

shown the jury the shock that he was experiencing, and that this would have a

bearing on his mens rea. The Utah Supreme Court rejected this claim as frivolous.

Gardner II, 888 P.2d at 616.

In his federal habeas petition and on appeal, Mr. Gardner similarly argued

that trial counsel was ineffective for failing to offer evidence that would have cast

doubt on whether he had intended to kill Mr. Burdell, but the basis for that

argument has shifted from misdescription of his wound to counsel’s failure to

undertake a thorough investigation of the murder weapon. He claims that counsel

failed to engage a forensic laboratory to investigate the inner workings of the gun.

A subsequent investigation, in 1999, found that the gun had a faulty safety device.

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Mr. Gardner contends that if counsel had properly investigated the weapon at the

time, he could have used this evidence to support an inference that the gun went

off accidentally, or upon such slight finger pressure that the firing was not

intentional.

Contrary to Mr. Gardner’s argument, this claim is not substantially the same

as the one he raised in state court, but is based on an entirely different factual

predicate. The failure to investigate the murder weapon is not the same as the

failure to present evidence to the jury regarding the nature of his wounds. Because

this claim could have been raised in state court and was not, Mr. Gardner is now

procedurally barred from raising it at this late stage. See Magar v. Parker, 490

F.3d 816, 818 (10th Cir. 2007) (noting that habeas petitioners seeking relief in

federal court must first exhaust all available state court remedies); Cf. Duffield,

545 F.3d at 1238 (discussing importance of raising issues in a timely manner to

avoid waiver).

Even if we were to hold that this claim was not procedurally barred, Mr.

Gardner would still not be entitled to relief. First, defense counsel did not act

deficiently. In addition to reviewing the examination of the weapon conducted by

the Utah State Crime Laboratory, Mr. Gardner’s lawyers had the gun examined by

Edward Barton, a defense investigator with ballistics expertise. He concluded that

it took two pounds of pressure to pull the trigger, and reported that this was

average for a single action handgun. The gun would “not be classified as having a

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hair trigger.” He also stated that the hammer had three stop positions, all in good

working order. Mr. Gardner does not explain why his counsel acted deficiently in

relying on Mr. Barton’s investigation. Nothing in Mr. Barton’s report suggested

that counsel should have had the gun analyzed further.

Moreover, no prejudice resulted from any alleged deficiencies. At trial, the

state’s expert testified that the gun had to be cocked before it could be fired. The

post-trial examination of the gun did not indicate it was faulty in any material

way. A ballistics expert testifying in the 1999 federal hearing confirmed that the

gun did not have a hair trigger. He indicated that he could not get the gun to fire

accidentally through “drop tests.” Collectively, this evidence strongly suggests

that the gun did not go off accidentally, but rather was intentionally cocked and

fired twice at Mr. Burdell. While the 1999 expert testified that the gun had a

malfunctioning safety device that could have caused the gun to fire if Mr. Gardner

had pulled the trigger and released it before the hammer actually fell, Mr. Gardner

has put forth no evidence to show that he tried to release the trigger after pulling

it. In other words, even if defense counsel had consulted another investigator

before trial, the elicited information would not have materially assisted Mr.

Gardner’s defense.

3. Failure to Object to Officer Jorgensen’s Testimony

Mr. Gardner also contends that trial counsel was ineffective during the guilt

phase by failing to object to testimony by Officer Wayne Jorgensen, presented on

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rebuttal, regarding incriminating statements Mr. Gardner made to him while in the

hospital. According to Officer Jorgensen, he guarded Mr. Gardner while he was in

the hospital on two occasions. On the first night, Mr. Gardner initiated a

conversation with him and volunteered information about Mr. Burdell’s murder.

He kept talking until Officer Jorgensen cut him off. On the second occasion, Mr.

Gardner again initiated conversation with Officer Jorgensen and they “got talking”

about Mr. Burdell’s murder. Officer Jorgensen asked if Mr. Gardner would have

shot him [i.e., Officer Jorgensen], to which Mr. Gardner responded, “Hell, man, I

had to get away, I didn’t care who it was,” and “Hey, I had to do what I had to

do.” When Officer Jorgensen asked Mr. Gardner why he shot Mr. Burdell, Mr.

Gardner said it was because he thought Mr. Burdell was going to “jump on [him]

and stop [him].” Officer Jorgensen filed no incident reports about these

statements, and Mr. Gardner later denied ever making them.

Mr. Gardner claims that his counsel should have moved to suppress Mr.

Jorgensen’s testimony about Mr. Gardner’s alleged statements because they were

involuntary under Mincey v. Arizona, 437 U.S. 385, 398 (1978), unreliable, and

elicited in violation of Miranda and his Sixth Amendment right to counsel.

On direct appeal, the Utah Supreme Court did not address whether trial counsel

was deficient for failing to challenge the testimony, but held that no prejudice

resulted because there was overwhelming evidence of Mr. Gardner’s intent to

shoot Mr. Burdell. Gardner I, 789 P.2d at 288. We do not regard this conclusion

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as unreasonable, and therefore hold, under AEDPA’s deferential standard, that this

claim does not warrant federal habeas relief.

The Utah Supreme Court correctly found that there was ample evidence,

wholly apart from Officer Jorgensen’s testimony, that Mr. Gardner’s killing of Mr.

Burdell was intentional. Mr. Gardner himself admitted asking for a loaded gun

because an unloaded gun was useless; a witness testified that he saw him pause

before shooting Mr. Burdell; another witness testified that Mr. Gardner had

pointed the gun at him but then turned the gun and shot Mr. Burdell instead; and

Mr. Gardner fired at Mr. Burdell twice, which required him to both cock the gun

and pull the trigger twice. This overwhelming evidence of guilt would have come

in and would have necessitated a finding of intent, even if Officer Jorgensen’s

statements had been suppressed. Thus, no prejudice resulted.

Even if we were to find that the court acted unreasonably in finding that no

prejudice resulted for the alleged deficiencies, defense counsel did not act

deficiently in any of the four ways Mr. Gardner suggests. As we discuss below,

the statements did not violate Miranda or Massiah, counsel could not prove the

statements were given involuntarily, the statements were reliable, and counsel

acted reasonably in calling Mr. Gardner to the stand. In reaching those

conclusions, we bear in mind that a reviewing court must be “highly deferential”

to counsel’s decisions. Strickland v. Washington, 466 U.S. 668, 689 (1984). “To

prove deficient performance, petitioner must overcome the presumption that

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counsel's conduct was not constitutionally defective.” Wallace v. Ward, 191 F.3d

1235, 1247 (10th Cir. 1999). “Counsel’s performance must be ‘completely

unreasonable’ to be constitutionally ineffective, not ‘merely wrong.’” Wilson, 536

F.3d at 1083 (quoting Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997)).

a. Miranda and Massiah Violations

Mr. Gardner claims his counsel acted deficiently in failing to object to

Officer Jorgensen’s statements on Miranda or Massiah grounds. Those cases

stand for the proposition that the Fifth and Sixth Amendments afford individuals

the right to counsel before and after indictment while being questioned by

government officials. It is evident that admission of Officer Jorgensen’s

testimony, on rebuttal, did not violate those principles.

First, it is not clear that Officer Jorgensen initiated the conversations with

Mr. Gardner. The officer testified that the two men “got talking,” and Mr.

Gardner, who is the only other person present at the time, does not testify that

Officer Jorgensen initiated the conversation. Instead, Mr. Gardner claims that the

conversations did not take place at all. If Mr. Gardner volunteered the information

to Officer Jorgensen without any action on the part of the state, there would be no

constitutional violation in introducing it into evidence. See Miranda v. Arizona,

384 U.S. 436, 444 (1966) (explaining that Miranda applies only where questioning

is initiated by law enforcement); see also Pickens v. Gibson, 206 F.3d 988, 994–95

(10th Cir. 2000) (statements obtained in violation of Miranda are admissible

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where defendant re-initiated communication). We are reluctant to rely entirely on

this ground, however, because no lower court has reached any factual finding

regarding Officer Jorgensen’s credibility; Mr. Gardner does not confirm or admit

that the officer did not initiate the conversation; and there is evidence in the record

that casts doubt on Officer Jorgensen’s testimony, including the fact that he filed

no incident report at the time.

Quite apart from whether the state initiated the conversations, however,

introduction of the testimony could not have violated Miranda and Massiah

because these decisions apply only to the introduction of evidence as part of the

prosecution’s case in chief and do not prevent statements that are otherwise

inadmissible from being admitted to contradict a witness’ testimony on rebuttal.

Harris v. New York, 401 U.S. 222, 225–26 (1971). As the Supreme Court held in

Harris, Miranda and Massiah prevent the affirmative use of uncounseled

statements but do not license a defendant to perjure himself without threat of

refutation using his prior statements. Id. at 226; see also Kansas v. Ventris, 07-

1356, — U.S. —, 2009 U.S. LEXIS 3299, at *14 (2009) (holding that testimony

elicited in violation of Sixth Amendment is admissible to impeach). Here, where

Mr. Gardner testified that he did not know what was happening when he killed Mr.

Burdell, the jury was entitled to learn of his statements to Officer Jorgensen that

he “had to get away,” that he did “what I had to do,” and that he shot Mr. Burdell

because he thought Mr. Burdell was going to “jump on [him] and stop [him].” To

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be sure, the jury might have disbelieved Officer Jorgensen’s account, but that does

not make the testimony inadmissible under Miranda and Massiah.

Even assuming the statements were admissible on rebuttal, Mr. Gardner

argues that his counsel had a duty to request an instruction limiting the use of the

testimony to the issue of credibility. On direct appeal, the Utah Supreme Court

rejected this argument, stating that the failure to request the instruction was not

“manifest error.” Gardner I, 789 P.2d at 282. Not requesting a limiting

instruction could have been a reasonable tactical decision to keep the damaging

statement from being reiterated to the jury, and thus not objectively unreasonable.

Accordingly, Mr. Gardner’s counsel did not act deficiently in failing to

object to Officer Jorgensen’s testimony on Fifth and Sixth Amendment grounds.

b. Voluntariness

Mr. Gardner next claims his statements were inadmissible because he was

under medication at the time and the statements were therefore not given

voluntarily. The Utah Supreme Court did not address this claim, but after

conducting an evidentiary hearing the federal district court concluded that it was

reasonable for trial counsel not to have raised this objection. At the 1999 federal

hearing, a psychiatrist testified that Mr. Gardner was on Halcion, a short term

treatment for insomnia, on the night he supposedly made the statements. Mag.

Rep. 44. The psychiatrist testified that the drug could cause amnesia, but that

there was only a remote chance it caused Mr. Gardner to forget making the

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statement. If the statement had been made while under the influence of Halcion,

he would not have been fully awake or conscious of what he was doing, and the

combination of Halcion and anti-anxiety medication could have loosened up Mr.

Gardner’s inhibitions. Another psychiatrist testified that the dose of Halcion

administered to Mr. Gardner was very unlikely to have caused amnesia.

We conclude that counsel acted reasonably in concluding the statements to

Officer Jorgensen were voluntary. A statement is inadmissible if it is not “the

product of a rational intellect and free will.” Mincey, 437 U.S. at 398. Mr.

Gardner’s own testimony suggests his mental capacity was not significantly

affected by Halcion. He claims to remember the night clearly. He remembers

being in the hospital, that Officer Jorgensen was guarding him in the room, and

that he did not make the statement. Moreover, Officer Jorgensen testified that Mr.

Gardner did not appear to be medicated when he gave the statements. Taken

together, the district court concluded that this evidence could have led counsel

reasonably to believe that the statement could not be suppressed as involuntary.

There is a significant factual component to that conclusion, which is not

plainly erroneous and must therefore guide this court’s analysis of the issue. In

light of the facts as found by the district court, and bearing in mind the

presumption that counsel’s performance was not constitutionally defective, we

agree with that court that counsel acted reasonably in not raising the voluntariness

objection to Officer Jorgensen’s testimony.

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c. Unreliability

Mr. Gardner argues that, at the very least, Officer Jorgensen’s testimony

about his alleged statements was so unreliable that his counsel should have

objected under Utah Rule of Evidence 403. Under Rule 403, evidence can be

excluded if “its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury.” This particular

objection was not raised in state court, but was raised in his federal habeas

petition. There is no apparent reason why Mr. Gardner could not have raised his

Rule 403 argument in state court, so Mr. Gardner is procedurally barred from

raising the issue now. Magar, 490 F.3d at 818.

Even if we were to address this issue, however, we would agree with the

decision of the magistrate judge and the district court to reject the argument. As

the magistrate judge noted, “Rule 403 is not to be used to exclude testimony that a

trial judge does not find credible because credibility questions are the prerogative

of a jury.” Mag. Rep. 50. We defer to the factfinder’s credibility determinations,

as it is in the best position to evaluate such matters. United States v. Barron-

Cabrera, 119 F.3d 1454, 1457 (10th Cir. 1997). Thus, defense counsel did not act

unreasonably in failing to object on Rule 403 grounds.

4. Counsel’s Decision to Encourage Mr. Gardner to Testify

Finally, Mr. Gardner contends that trial counsel was ineffective because he

encouraged Mr. Gardner to take the stand, which proved injurious to his defense.

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In the state post-conviction proceedings, Mr. Gardner argued that his counsel was

ineffective for coercing him to testify. The court dismissed the claim, holding that

the issue had been addressed, in essence, on direct appeal when the court rejected

Mr. Gardner’s assertion that admitting his prior inconsistent statements violated

his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Gardner II, 888 P.2d at

615. Mr. Gardner argued in his federal habeas petition that his counsel was

ineffective in calling him to testify. The district court disagreed, finding counsel’s

performance was not deficient. We affirm and hold that counsel’s decision on this

point was within the reasonable range of effective trial strategy.

The theory of the defense was that Mr. Gardner had planned only to

escape, not to kill anyone; once he was shot, he did not know what was going on,

and while in a dazed state, saw movement in the archives room and his gun

discharged unintentionally. Mr. Gardner argues that his counsel acted

unreasonably in calling him to testify because his testimony did not support this

theory and that calling him opened the door for Officer Jorgensen’s testimony on

rebuttal. He also claims that his counsel knew he would say that he could not

remember the immediate circumstances surrounding Mr. Burdell’s death and that

he would refuse to name his accomplice.

After full examination of the record, we agree with the district court that

defense counsel did not act unreasonably in calling Mr. Gardner to the stand.

Apart from Mr. Gardner’s own testimony, the defense had little evidence to

-25-
support its theory. As already discussed, there was little evidence to support a

major psychological disorder that could have prevented Mr. Gardner from having

the requisite intent, and there was also little evidence suggesting that the gun went

off accidentally. Thus, even if Mr. Gardner’s own testimony contained a few

damaging statements, a reasonable attorney could easily conclude that it was, on

balance, the best hope of providing evidence that could support a verdict of

acquittal.

5. Cumulative Effect

Though none of these alleged errors itself warrants reversal, we are required

to look at the cumulative effect of counsel’s errors. Duckett v. Mullin, 306 F.3d

982, 992 (10th Cir. 2002). “A cumulative-error analysis merely aggregates all the

errors that individually have been found to be harmless, and therefore not

reversible, and it analyzes whether their cumulative effect on the outcome of the

trial is such that collectively they can no longer be determined to be harmless.”

United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (citation omitted).

The harmlessness inquiry for cumulative error is the same as the inquiry for

individual error: were the defendant’s substantial rights affected? Id. at 1470. We

hold that even if any of the claims of ineffective assistance during the guilt phase

have merit, the strong evidence of Mr. Gardner’s intent to shoot Mr. Burdell would

have still convinced the jury of his guilt. Mr. Gardner had an extensive history of

violence and had previously attempted to escape from an industrial school and

-26-
state prison facilities. No expert testimony supported the argument that Mr.

Gardner’s mental condition prevented him from understanding his actions and

their intended result. No evidence was presented that established the gun was

faulty in any material way. In addition, Mr. Gardner shot Mr. Burdell twice and

later admitted that he asked for a loaded gun because an unloaded gun would have

been useless. All of these facts strongly suggest he had the intent to kill Mr.

Burdell. Thus, reversal is not warranted on the cumulative effect of counsel’s

errors.

B. Ineffective Assistance at Penalty Phase

Mr. Gardner argues that his counsel acted deficiently in failing to

adequately investigate and present evidence of Mr. Gardner’s social and mental

history during the penalty phase. The state district court during post-conviction

proceedings addressed a version of this argument, holding that Mr. Gardner was

denied effective assistance when his counsel failed to give the defense

psychiatrist, Dr. Heinbecker, more time to prepare for the penalty phase. The Utah

Supreme Court reversed, holding that Mr. Gardner was not prejudiced by his

counsel’s failure to give the psychiatrist more time to prepare. Gardner II, 888

P.2d at 619. The court noted that Dr. Heinbecker had not indicated that more

preparation time would have led to more information favoring Mr. Gardner. Id.

In federal court, the magistrate judge similarly concluded that counsel was

deficient at the penalty phase but that no prejudice resulted. Unlike the magistrate

-27-
judge, the district court did not address the deficiency issue, concluding that there

was no prejudice.

1. Standard of Review

Typically we would address the prejudice issue under deferential AEDPA

standards because the issue was addressed on the merits by the Utah Supreme

Court. Oddly, however, in oral argument the state asserted, against its interest,

that the issue should be reviewed de novo. Aple. Br. 3. The state reached this

conclusion by applying Utah Code Annotated §§ 78B-9-109 and -202(2), as well

as our decision in Wilson v. Sirmons, 536 F.3d 1064 (10th Cir. 2008). Section

78B-9-109(1) provides that “the court may, upon the request of an indigent

petitioner, appoint counsel on a pro bono basis to represent the petitioner in the

post-conviction court or on post-conviction appeal.” In determining whether to

appoint counsel, the court is to consider “whether the petition or the appeal

contains factual allegations that will require an evidentiary hearing,” and “whether

the petition involves complicated issues of law or fact that require the assistance

of counsel for proper adjudication.” Utah Code Ann. § 78B-9-109(2). Utah Rule

of Criminal Procedure 8(e) sets forth the requirements of counsel appointed in

these circumstances.

The state relies on our reasoning in Wilson and the rule laid out above in

conceding that AEDPA deference does not apply. We stated in Wilson that “when

a state court's disposition of a mixed question of law and fact, including a claim of

-28-
ineffective assistance, is based on an incomplete factual record, through no fault of

the defendant, and the complete factual record has since been developed and is

before this Court, we apply de novo review to our evaluation of the underlying

claim.” 536 F.3d at 1079. Here, the state assumed that where the defendant did

not have the resources to develop a full factual record on this issue, it was “no

fault of the defendant” that an incomplete factual record existed at the state court

level. As a result, the state argues that we should apply de novo review.

There is a key difference, however, between Wilson and this case. In

Wilson, the prisoner had a federal right to an evidentiary hearing, which was

denied by the state court despite his diligence in pursuing the right. 1 Here,

however, any right Mr. Gardner may have had to funding to develop a factual

record is a product of state law, not federal law. Federal habeas review is

confined to denials of federal rights, see 28 U.S.C. § 2254(a), and it is therefore

irrelevant at this stage whether or not Mr. Gardner was denied the rights to which

1
Specifically, the prisoner had a right to an evidentiary hearing if he could
show that his “allegations, if true and not contravened by the existing factual
record, would entitle him to habeas relief.” Wilson, 536 F.3d at 1081. Under
Oklahoma procedure rules, however, a defendant raising an ineffective assistance
claim based on non-record evidence has a right to an evidentiary hearing only if
he can show by “clear and convincing evidence there is a strong possibility trial
counsel was ineffective.” Id. at 1080. Because the state court denied the prisoner
an evidentiary hearing on the latter standard, the Wilson court held that he was
denied a federal right. That holding is presently under review by the en banc
court. See Wilson v. Sirmons, 2008 U.S. App. LEXIS 27448 (10th Cir. Dec. 2,
2008). The result of that rehearing proceeding cannot affect this case, however,
because whether or not Wilson was denied a federal right, there is no argument
that Mr. Gardner was.

-29-
he may have been entitled under state law. Our decision in Wilson therefore does

not have the implications for our standard of review in this case that the state

seems to think.

The state’s candid (if unwarranted) concession raises a related issue: can the

congressionally mandated deferential standard of review be waived by counsel? In

other words, should this court apply a standard of review more searching than that

dictated by ADEPA on account of the fact that the state’s appellate lawyers

mistakenly believed that the more searching standard applies?

It is well established that states may waive some of AEDPA’s provisions.

See, e.g., Boston v. Weber, 525 F.3d 622, 626 (8th Cir. 2008) (holding that if a

state intelligently chooses to waive a statute of limitations defense in a habeas

case, a district court is not at liberty to disregard that choice); Torres v. Senkowski,

316 F.3d 147 (2d Cir. 2002) (holding that a state cannot waive AEDPA’s

requirement that circuit courts rather than district courts must authorize successive

habeas motions or applications because the requirement is jurisdictional); see also

Note, Rewriting the Great Writ: Standards of Review for Habeas Corpus Under the

New 28 U.S.C. § 2254, 110 Harv. L. Rev. 1868, 1871 n.26 (1997) (explaining that

AEDPA requires “federal courts to find an express waiver of exhaustion [by the

state] before taking jurisdiction over an incompletely exhausted state appeal”).

This court has apparently never addressed whether the state can waive the standard

of review under AEDPA. Other courts of appeal have, however, done so, and all

-30-
have concluded that the standard of review under AEDPA cannot be waived by the

parties. Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008); Eze v. Senkowski,

321 F.3d 110, 121 (2d Cir. 2003); Worth v. Tyler, 276 F.3d 249, 262 n.4 (7th Cir.

2001).

We agree with our sibling circuits that the correct standard of review under

AEDPA is not waivable. It is, unlike exhaustion, an unavoidable legal question

we must ask, and answer, in every case. See Eze, 321 F.3d at 121 (“AEDPA's

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

applicability for all petitions filed by state prisoners after the statute's effective

date presenting claims that have been adjudicated on the merits by a state court.”).

Congress set forth the standard in “unequivocally mandatory language.” Id. See

28 U.S.C. § 2254(d) (instructing that a state prisoner's petition for a writ of habeas

corpus “shall not be granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the claim (1) resulted

in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States; or (2) resulted in a decision that was based on an unreasonable

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

proceeding”) (emphasis added). It is one thing to allow parties to forfeit claims,

defenses, or lines of argument; it would be quite another to allow parties to

stipulate or bind us to application of an incorrect legal standard, contrary to the

-31-
congressional purpose. We therefore will review this claim under AEDPA’s

deferential standard.

2. Ineffectiveness at Penalty Phase

To determine the appropriateness of the death penalty, “evidence about the

defendant’s background and character is relevant because of the belief, long held

by this society, that defendants who commit criminal acts that are attributable to

disadvantaged background, or to emotional and mental problems, may be less

culpable than defendants who have no such excuse.” California v. Brown, 479

U.S. 538, 545 (1987). Thus, in a capital case, defense counsel’s duty to

investigate “includes investigating petitioner’s background” for such mitigating

circumstances. Smith v. Gibson, 197 F.3d 454, 463 (10th Cir. 1999). In Utah, a

jury must find unanimously that the aggravation outweighs the mitigation beyond

a reasonable doubt in order to impose the death penalty. Utah Code Ann. § 76-3-

207. Reversing the death penalty is appropriate where there is a reasonable

likelihood that the sentencing jury would not have sentenced the defendant to

death if it had considered the mitigating evidence counsel failed to present.

Williams v. Taylor, 529 U.S. at 391 (2000); see, e.g., Wilson v Sirmons, 536 F.3d

1064 (10th Cir. 2008); Smith v. Mullin, 379 F.3d 919, 942 (10th Cir. 2004).

Prior to trial, defense counsel arranged for a psychiatrist, Dr. Rindflesh, to

meet with Mr. Gardner and prepare a report of his mental health. During trial,

counsel contacted several other psychologists, none of whom were willing to meet

-32-
with Mr. Gardner. Before the penalty phase, defense counsel enlisted the help of

Dr. Heinbecker, who was contacted only after the guilty verdict was rendered, just

two days before the penalty phase began. Dr. Heinbecker did not review Mr.

Gardner’s juvenile and institutional records until the day before he testified at the

penalty phase. Defense counsel said that Dr. Heinbecker spent most of the day

reviewing documents and then met with counsel in the evening. Dr. Heinbecker,

who had testified in three other capital cases, stated, I “had never been in a case

like this where I wasn’t given adequate records . . . or adequate time to review the

records.” Aplt. Br. 27.

It is undisputed that Mr. Gardner’s childhood was troubled in many respects.

According to his submission on appeal, if the full, accurate picture of Mr.

Gardner’s background had been presented at the penalty phase, the jury would not

have sentenced him to death. He argues that this evidence would have shown,

inter alia, the following: he grew up in a dysfunctional family, the product of a

broken home; he lived in a condemned house for some time, then lived with

various foster families and was in and out of detention facilities; his step-father

exposed him to criminal activity; the children in his family were sexually and

emotionally abused; he was hospitalized for meningitis as a child, which could

have caused organic brain damage; he had been sniffing gasoline since he was six

years old, which could have caused brain damage; he was introduced to LSD by

age ten; also by age ten he had been charged with public intoxication, shoplifting,

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petty larceny, grand larceny, gas sniffing, and violence against fellow students and

his sister; at age eleven he spent one year in a locked facility at Utah State

Hospital where he was introduced to pot and acid; psychological tests at the State

Hospital revealed evidence of possible brain impairment; he scored a forty-seven

on the Halstead Reitan Battery of tests, indicating moderate brain damage with

possible implications on judgment; he was placed in a state industrial school at age

fourteen; he has a tic, which could suggest brain illness; and, he has a history of

“being immature, acting on impulse without any internal controls.” Aplt. Br. 30.

The Utah Supreme Court, overturning the conclusion of the state district

court, held that counsel’s failure to give Dr. Heinbecker more time to prepare for

trial was insufficiently prejudicial to warrant habeas relief. Petitioner has not

suggested that the Utah court failed to apply the proper constitutional standard.

Applying AEDPA deference, we hold that the Utah Supreme Court’s conclusion

was not an “unreasonable application of . . . clearly established Federal law as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

Notwithstanding the abbreviated period he was given to prepare, Dr.

Heinbecker did testify to most of the above-summarized background information.

He testified that Mr. Gardner had an unstable upbringing, the product of a broken

home. His mother had difficulty disciplining her nine kids, his step-father was

incarcerated, his family had lengthy criminal and substance abuse histories, and

his mother was charged with parental neglect when Mr. Gardner was two and five.

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Dr. Heinbecker further testified that Mr. Gardner was in and out of state

institutions for most of his life, and tests revealed some evidence of organic brain

damage.

The information Dr. Heinbecker could have discovered and presented if

given more time would likely only have added color to what Dr. Heinbecker

actually did testify to at the penalty phase. Knowing of his difficult upbringing

and possible brain damage did not convince a jury to forego the death penalty. It

is not likely that further detail about Mr. Gardner’s youthful drug use, criminal

history, and scores on various mental tests would have changed the outcome.

Additional evidence along these lines could even have a double-edged effect, to

the extent that it could increase the jury’s perception of Mr. Gardner’s

dangerousness. The greater the dysfunction in his family, the less likely it is that

Mr. Gardner’s violence would subside if ever released.

Moreover, specific evidence designed to show that Mr. Gardner was not

fully in control of his actions could have opened the door to extensive and

damaging rebuttal evidence. The jury had not been informed of a number of

violent acts Mr. Gardner committed in the past, which appeared to be calculated

and controlled. Had the defense presented evidence to show that Mr. Burdell’s

killing was a product of Mr. Gardner’s upbringing, the prosecution probably could

have introduced this damaging evidence in rebuttal. The prosecution also could

have introduced expert testimony that Mr. Gardner’s anti-social personality

-35-
disorder would not impair his volition. Indeed, Mr. Gardner’s own 1999 experts

testified that he performs well under stress and always manages to stop when his

life is threatened. In addition, the prosecution could have introduced Mr.

Gardner’s own statement that one of the motivating factors behind his attempted

escape was his desire to return to drug use. Finally, the prosecution could have

admitted evidence that his anti-social personality disorder was brought on in large

part by his own actions, including extensive drug use.

Reasonable minds may differ on the likely impact on the jury of more

thoroughly researched mental health testimony, as the differing assessments of the

state judges demonstrates. The question before us, however, is not whether the

Utah Supreme Court was correct but whether its judgment was unreasonable.

Based on our review of the arguments and record evidence, it was not.

Mr. Gardner tries to compare this case to Wiggins v. Smith, 539 U.S. 510

(2003). In Wiggins, a 77-year old woman was murdered by being drowned in her

bathtub and sprayed with insect killer. The Supreme Court held that defense

counsel acted deficiently in not adequately investigating and presenting evidence

of the defendant’s troubled family and social history at sentencing. Though

defense counsel had one psychologist run tests on the defendant and examined his

social services records, Mr. Wiggins’ attorneys claimed to have made a strategic

decision not to investigate further or to present this evidence to the jury. Id. at

553 (Scalia, J., dissenting). The Court held this was an insufficient investigation

-36-
into possible mitigating circumstances. Wiggins, 539 U.S. at 534-35. What

defense counsel had found in its limited investigation showed a long history of

foster care and abuse, and “any reasonably competent attorney would have realized

that pursuing these leads was necessary to making an informed choice among

possible defenses.” Id. at 525.

This case, however, differs from Wiggins in two key respects. First, in

Wiggins there was no apparent risk of opening the door to damaging evidence by

introducing the potential mitigating circumstances of Mr. Wiggins’ difficult

childhood. Here, as outlined above, the prosecution could have presented

extensive damaging evidence in rebuttal. Thus, it is much more likely in this case

than in Wiggins that defense counsel made a reasonable, strategic decision in not

introducing more specific evidence about Mr. Gardner’s past.

Second, during the sentencing phase of Wiggins, defense counsel

“introduced no evidence of Wiggins’ life history.” Id. at 515 (emphasis added).

Here, Dr. Heinbecker testified about Mr. Gardner’s difficult upbringing at the

sentencing phase and his possible brain impairment. While there is a reasonable

probability that one juror would have avoided the death penalty upon hearing of

Mr. Wiggins’ difficult background for the first time, Mr. Gardner’s jury heard

about his unfortunate life history and decided to sentence him to death anyway.

The specifics of his past would not likely have made a significant difference, so no

prejudice resulted.

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 In his Reply Brief, Mr. Gardner also relies on the lead opinion in Wilson v.

Sirmons, 536 F.3d 1064 (10th Cir. 2008), in support of his view that counsel’s

insufficient preparation and presentation of mental health evidence was

prejudicial. 2 This case is similar to Wilson in that trial counsel was ineffective in

conducting only a limited investigation into the defendant’s mental health and not

offering available diagnoses at the penalty phase of trial. 536 F.3d at 1085-86.

But there are significant differences in degree and context, which render that

decision distinguishable. Indeed, even in Wilson, the court did not hold that

counsel’s inadequate preparation and presentation of mental health evidence was

necessarily prejudicial, but instead remanded to the district court for an

evidentiary hearing on prejudice. Id. at 1096.

First, according to the expert in Wilson, the difference between his

testimony at trial and what he could have said if he had more time for preparation

was “enormous[].” Id. at 1077. Prior to his testimony, the expert administered

tests that suggested a diagnosis of schizophrenia, but the tests were not valid and

had to be readministered. The expert therefore could testify only to diagnoses of

bipolar disorder, anxiety disorder, and post-traumatic stress disorder. Id. at 1075.

After trial, on retesting and examination of additional information from other

sources, the expert concluded that the defendant suffered from schizophrenia,

2
Wilson is currently under en banc review, but not with regard to the issue
of prejudice. See Wilson v. Sirmons, 2008 U.S. App. LEXIS 27448 (10th Cir.
Dec. 2, 2008).

-38-
paranoid type, and that it was possible that he was delusional at the time of the

crime. Id. at 1077. The difference between Dr. Heinbecker’s trial testimony and

what he could have given after further investigation, by contrast, was purely a

matter of degree. To be sure, Dr. Heinbecker could have provided more detailed

testimony, but it would not have supported a different diagnosis.

Second, according to the lead opinion in Wilson, the evidence that could

have been presented was far more likely to influence the jury than that in this case.

According to the lead opinion, schizophrenia is likely to be regarded as more

mitigating than generalized personality disorders because the latter are inseparable

from personal identity and often untreatable. Id. at 1094 (“Diagnoses of specific

mental illnesses such as schizophrenia or bipolar, which are associated with

abnormalities of the brain and can be treated with appropriate medication, are

likely to be regarded by a jury as more mitigating than generalized personality

disorders, which are diagnosed on the basis of reported behavior, are generally

inseparable from personal identity, and are often untreatable through medical or

neurological means.”). Here, by contrast, even after full investigation the defense

expert uncovered no diagnoses that were this potent a form of mitigation. Mr.

Gardner did not suffer from hallucinations or delusions. There was only evidence

of moderate brain damage, most of which was caused by his own drug use, and Dr.

Heinbecker testified with regard to these impairments.

-39-
 Third, in Wilson counsel did not even provide his expert witness an

opportunity to testify regarding the diagnoses he had reached, or to explain the

significance of those diagnoses to the jury, leading to a disastrous cross-

examination in which the defendant was successfully portrayed as a “psychopath,”

without effective response from the defense. Id. at 1076. Nothing of that sort

occurred here. Despite the limitations under which he was operating, Dr.

Heinbecker did an effective job of conveying mitigating evidence regarding Mr.

Gardner’s family history, possible organic brain damage, and social circumstances.

Finally, in Wilson our standard of review was de novo, and the state

provided only a skeletal argument regarding the issue of prejudice. Id. at 1079,

1093–95. Here, the Utah Supreme Court decided the prejudice issue on the merits,

and the state has fully briefed the prejudice issue.

Thus, in contrast to the result in Wilson, we conclude that the Utah Supreme

Court’s decision that Mr. Gardner was not prejudiced by his counsel’s failure to

provide Dr. Heinbecker with more time to prepare was not unreasonable.

C. Ineffective Assistance on Appeal

We turn now to Mr. Gardner’s claim of ineffective assistance by appellate

counsel, which is based on counsel’s failure to challenge on appeal a faulty jury

instruction defining the mens rea element for first degree murder. The court gave

the following instruction:

-40-
 A person engages in conduct: (1) “Intentionally” when it is his conscious
objective or desire to engage in the conduct or to cause the result; or (2)
“Knowingly” when he is aware of the nature of his conduct, or the
existing circumstances, or is aware that his conduct is
reasonably certain to cause the result.

Aplt. Br. 37 (emphasis added). Defense counsel did not object to the proposed

instruction, but offered their own alternative instruction that was rejected.

Gardner v. Galetka, 2007 U.S. Dist. LEXIS 25651, at *7–8. The government has

conceded that, read in isolation, the “knowingly” definition was erroneous in that

it did not require the jury to find that Mr. Gardner acted knowingly with respect to

his conduct and the result. See State v. Standiford 769 P.2d 254, 260 n.3 (Utah

1998) (describing the mental state for first degree murder as the “purpose to kill”).

The government argues, however, that no prejudice resulted. Mr. Gardner claims

his appellate counsel provided ineffective assistance by not raising this issue on

appeal.

Because this issue was not raised in state court on direct appeal or on

application for post-conviction relief, the district court held the claim in abeyance

while Mr. Gardner exhausted the claim in state courts. The Utah Supreme Court

held that the claim was procedurally barred because it was not raised on direct

appeal. Gardner v. Galetka, 94 P.3d 263 (Utah 2004) [Gardner III]. In reaching

this conclusion, the state court applied Utah’s 1996 Post-Conviction Remedies Act

(PCRA). Id. at 268. Mr. Gardner, however, filed his initial state post-conviction

petition in 1990, before the 1996 Post-Conviction Remedies Act was enacted.

-41-
Accordingly, the federal district court certified the following question to the Utah

Supreme Court: “If Mr. Gardner had raised the ineffective assistance of counsel

claim at issue in Gardner v. Galetka, 94 P.3d 263 [Gardner III], in state court in a

successive petition in 1990, would the petition have been procedurally barred?”

The Utah Supreme Court responded affirmatively. Gardner v. Galetka, 151 P.3d

968 (Utah 2007) (Gardner IV). According to the Gardner IV court, the court

would have dismissed the claim in 1990 based on the determination that Mr.

Gardner’s claim “could have been raised in a prior post-conviction proceeding”

and that it did not fall within the common law “good cause” exception because it

was “facially implausible” or “frivolous.” Id. at 973-74. “There is no ‘good

cause’ that justifies bringing before a court a frivolous post-conviction claim.

Indeed, there is no ‘fundamental unfairness’ in dismissing a frivolous claim.” Id.

at 974. The Utah Supreme Court characterized this rule as “procedural” because

the bar was based on the successive nature of the petition.

The federal district court disagreed. The court reasoned that a threshold

finding of frivolousness is “interwoven with federal law.” Gardner, 2007 U.S.

Dist. LEXIS 25651, at *17. Thus, the court concluded that such a threshold

finding required an examination of the merits, which precludes finding that the

claim is procedurally barred under federal law. However, without addressing the

deficiency prong, the court dismissed his claim because Mr. Gardner had failed to

establish prejudice. Id.

-42-
 We do not agree with the district court that the Utah Supreme Court’s

dismissal of the appellate ineffectiveness claim cannot be regarded as a procedural

bar to federal habeas review. To be sure, the Utah court’s frivolousness

determination itself involves the merits of his jury instruction claim. See

Backstrom Family Ltd. P’ship v. Hall, 751 P.2d 1157, 1160 (Utah Ct. App. 1988)

(the frivolousness inquiry requires a court to determine if a claim is “without

reasonable legal or factual basis”). But the frivolousness inquiry is not the bar; it

is an element of the exception to the bar. The reason the Utah court would not

entertain Mr. Gardner’s claim based on the jury instruction is that he failed to raise

it as part of his first post-conviction petition, even though he could have done so.

This is undoubtedly procedural. We do not think that a state’s decision to allow

exceptions to its procedural bar in the interest of preventing “fundamental

unfairness,” which requires an examination of the merits, makes the underlying bar

any less procedural. If this were so, any procedural bar with an exception based

on avoiding a fundamental miscarriage of justice would lose its character as an

independent procedural ground under Michigan v. Long, 463 U.S. 1032 (1983).

But we need not resolve this question, because we agree with the district court that

Mr. Gardner’s claim that the faulty jury instruction was harmful error fails on the

merits.

“A misstatement of an element in jury instructions is subject to harmless

error analysis on habeas review.” Scoggin v. Kaiser, 186 F.3d 1203, 1207 (10th

-43-
Cir. 1999). Error is harmless if it “appears beyond a reasonable doubt that the

error complained of did not contribute to the verdict obtained.” Neder v. United

States, 527 U.S. 1, 15 (1999) (internal quotations and citation omitted). The Utah

Supreme Court concluded that it was “absurd” to suggest that any reasonable juror

could reach a different verdict based on a proper jury instruction. 151 P.3d at 974.

Because, as we have said, the Utah Supreme Court’s frivolousness determination

was a decision on the merits of the jury instruction claim, it warrants AEDPA

deference. Under the circumstances here, we agree with the Utah Supreme Court

that the faulty instruction could have had no effect on the outcome.

When returning the verdict, the jury foreman stated that the jury

unanimously found Mr. Gardner had killed Mr. Burdell “for the purpose of

effecting [his] escape . . . from lawful custody.” Vol. XLIX, 2598. Thus, the jury

must have concluded that Mr. Gardner intentionally shot Mr. Burdell, knowing

that it would allow him to escape. Mr. Gardner does not dispute this conclusion.

He argues, however, that in light of the instruction, it is not clear whether the jury

found that he was “aware that his conduct [was] reasonably certain to cause the

result,” that is, Mr. Burdell’s death. In other words, given the disjunctive

formulation of the instruction, the jury could have found that Mr. Gardner fired the

bullet at Mr. Burdell for the purpose of effectuating an escape, but without

intending or even knowing that the result would be Mr. Burdell’s death.

-44-
 Even if there was such an ambiguity, we agree with the district court that no

reasonable juror “would find, given the totality of the evidence, that Mr. Gardner

was aware of his conduct but was not reasonably certain that firing a loaded .22

caliber handgun directly into Mr. Burdell’s head at point-blank range would result

in Mr. Burdell’s death.” Gardner, 2007 U.S. Dist. LEXIS 25651, at *29. The jury

unquestionably found that Mr. Gardner intended to pull the trigger. Under the

circumstances, death was reasonably certain to result. Thus, the state court was

not unreasonable in finding that the erroneous jury instruction resulted in harmless

error.

D. Conflict of Interest Claim

Mr. Gardner next alleges that his representation suffered from a conflict of

interest that deprived him of a fair trial. At trial, Mr. Gardner was represented by

two brothers, Andrew and James Valdez. On the day of the courthouse shooting,

each brother arrived separately at the scene. Having heard that Mr. Gardner had

killed an unnamed attorney, each was fearful that the other might have been the

victim. When each of them encountered Mr. Gardner, he inquired after the

whereabouts of his brother.

Before the district court, Mr. Gardner asserted the existence of a conflict of

interest on the basis of a variety of factual allegations, see Mag. Rep. 21. On

appeal, however, he argues only that the conflict of interest stemmed from “the

victimization of the Valdez brothers.” Aplt. Br. 78. Mr. Gardner alleges that this

-45-
“victimization” occurred because of the Valdez brothers’ fear for each other’s

safety after the courthouse shooting, as well as the fact that the Valdezes were

familiar with some witnesses to and victims of the event. 3 See id. The Utah

Supreme Court rejected these arguments on the merits, in large part because Mr.

Gardner could not demonstrate the existence of any deleterious impact on his

representation. See Gardner II, 888 P.2d at 621–22. The district court concluded

that the Utah Supreme Court’s conclusion was a reasonable application of federal

constitutional standards. Mag. Rep. 26–31. We agree.

The right to counsel guaranteed by the Sixth Amendment includes the right

to representation that is free from conflicts of interest. United States v. Bowie,

892 F.2d 1494, 1500 (10th Cir. 1990). “In the context of a conflict of interest

claim where there was no objection at trial . . . the client must demonstrate an

actual conflict of interest which adversely affected his lawyer’s performance.”

United States v. Alvarez, 137 F.3d 1249, 1251 (10th Cir. 1998) (citation omitted).

If the client can establish the conflict actually affected the adequacy of his

representation, prejudice is presumed. Id. The client has the burden of showing

3
The government argues that this claim was not raised before the district
court and therefore is waived. There is some evidence, however, that the
substance of this claim was raised before the district court. See, e.g., Vol. XIV,
Doc. 607 at 5 (elaborating on idea that “the Valdez brothers themselves were
victims of the crime”). Because we conclude that this claim fails on the merits,
we need not resolve whether it was waived.

-46-
specific instances to support his contentions of an actual conflict adverse to his

interests. Id.

Mr. Gardner primarily points to Andrew Valdez’s closing statement at his

trial as evidence of the alleged conflict of interest. During his closing statement,

Mr. Valdez described his personal fear on the day of the shooting, when he was

anxious for his brother’s whereabouts and safety. See Vol. L 2880 (Trial Tr. 1661)

(“I got this fear because I hadn’t seen my brother . . . and I was so fearful at that

point. And I went looking for [James] in the crowd. I didn’t know it, but he had

done the same thing. He had gotten there and had asked, ‘Where is Andy?’ He

thought I had been killed. We found each other and rejoiced in each other’s

safety, and the fear subsided.”) Mr. Gardner argues that this suggests that trial

counsel was unable to zealously advocate for him. But this ignores the thrust of

Mr. Valdez’s argument, by which he was attempting to convince the jury to set

aside its fear when sentencing Mr. Gardner, just as he had set aside his fear and

determined to continue representing Mr. Gardner because he “believe[d] in saving

his life.” Id. at 2881 (Trial Tr. 1662). In other words, Mr. Valdez was arguing to

the jury that just as he himself had been able to put aside his fear, the jury should

and must do so in order to make a rational sentencing judgment. See id. at

2880–81 (Trial Tr. 1661–62) (“[I]f, in fact, you fall for the fear tactic, I would

submit to you that that is not a rational basis to kill this man.”).

-47-
 In context, Mr. Valdez’s argument does not support the claim that his ability

to represent Mr. Gardner was adversely affected by the impact of the courthouse

shooting. If anything, it indicates that Mr. Valdez was attempting to use his

experience to convince the jury to sentence Mr. Gardner to life imprisonment,

rather than death. Because Mr. Gardner has failed to demonstrate any adverse

effect from his attorneys’ representation, he cannot prevail on his conflict of

interest claim.

Mr. Gardner separately argues that the trial court erred by failing to hold an

evidentiary hearing on this potential conflict of interest when the issue arose.

Even assuming the trial court knew or reasonably should have known about the

existence of a conflict, however, Mr. Gardner still would have to show that the

conflict of interest “adversely affected his counsel’s performance” in order to

obtain habeas relief. Mickens v. Taylor, 535 U.S. 162, 174 (2002). As he has

failed to make this showing, this claim also fails. 4

4
Because we conclude that Mr. Gardner is unable to demonstrate the
existence of a conflict of interest sufficient to warrant habeas relief, we need not
evaluate whether the district court was correct to conclude that he waived any
conflict that might have existed. Nevertheless, we note that a client may
generally waive his right to conflict-free representation, when done voluntarily,
knowingly, and intelligently. See Estelle v. Smith, 451 U.S. 454, 471 n.16 (1981).
The original trial record implies that such a waiver occurred in this case. See
Vol. L. 2881 (Trial. Tr. 1661) (“[The defendant] still, in spite of the possible
conflicts, wanted us to defend him because we believe in saving his life.”).

-48-
E. Change of Venue

Before trial, Mr. Gardner moved for a change of venue, arguing that the

pretrial publicity about his attempted escape and the shooting made it impossible

for him to receive a fair trial in Salt Lake City. In support of his motion, Mr.

Gardner submitted several dozen newspaper articles and videotapes of local

broadcasts typifying the publicity. Mr. Gardner also relied on a survey,

commissioned by his counsel, of approximately four hundred registered voters in

Salt Lake City, concerning their knowledge of and reaction to the crime. See

Aple. Br. 87–88. The survey purported to show that ninety percent of respondents

thought that the defendant was either “guilty” or “probably guilty.” Gardner I,

789 P.2d at 277. Mr. Gardner finally took issue with the fact that his trial was

held in the county courthouse, across the street from the building where the

shooting had taken place.

The trial court denied Mr. Gardner’s initial motion for a change of venue

based on pretrial publicity, but left open the opportunity to renew the motion.

Aple. Br. 89. The trial judge then conducted five days of voir dire, during which

he asked the prospective jurors about their ability to remain impartial, asked them

to explain any outside information that they had learned about the case, and

allowed both prosecution and defense to conduct further examination. Id. After

the jury was selected, Mr. Gardner renewed his motion for a change of venue and

it was again denied.

-49-
 Mr. Gardner raised the venue issue on direct appeal to the Utah Supreme

Court, which affirmed the trial court. Gardner I, 789 P.2d at 277–78. Although

the court acknowledged that many prospective jurors had been exposed to the

basic facts of the courthouse shooting, it determined that this exposure did not

warrant a presumption of prejudice. It noted first that a venire’s exposure to the

fundamental facts of an incident does not presumptively deprive a defendant of

due process. See id. at 277 (citing Murphy v. Florida, 421 U.S. 794, 799 (1975)).

Second, it pointed out deficiencies in the survey conducted by Mr. Gardner, which

diminished the inferences that might be taken from its results. See id. In

particular, the court noted—and Mr. Gardner acknowledged—that when asked

whether the defendant was “guilty,” the survey taker gave no explanation of what

crime the defendant was charged with or what burden of proof the state was

required to meet. Id. As a result, the Utah Supreme Court found that “any lay

opinion as to guilt [indicated by the survey] was merely an affirmation that [Mr.

Gardner] was the person involved in the incident, a fact conceded by the defense.”

Id. Finally, the court explained that Mr. Gardner had not alleged any specific

prejudice from the proximity of his trial to the courthouse where the shooting had

taken place. For all these reasons, it concluded that the trial court had not abused

its discretion in concluding that prejudice could not be presumed, and therefore

denying the request for change of venue. Id. at 278. The federal district court

found that the Utah Supreme Court’s decision did not represent an unreasonable

-50-
application of clearly established Supreme Court law. See Mag. Rep. 151;

Gardner, 2007 U.S. Dist. LEXIS 25643, at *13. We agree.

This court’s precedents are not entirely consistent with regard to the

standard of review to apply to a state court’s decision regarding jury impartiality.

Compare Goss v. Nelson, 439 F.3d 621, 627 (10th Cir. 2006) (stating that only

when a manifest error occurs can a federal habeas court overturn a state court’s

finding regarding jury impartiality as a whole), with Hale v. Gibson, 227 F.3d

1298, 1331 (10th Cir. 2000) (asking whether state supreme court’s finding that

trial court did not abuse its discretion in rejecting change of venue was an

unreasonable application of Supreme Court precedent); see also Patton v. Yount,

467 U.S. 1025, 1031 n.7 (1984) (declining to decide whether it is appropriate for a

reviewing court to apply a “manifest error” standard or to follow the ordinary level

of deference afforded state supreme court decisions on habeas relief). In this case,

because we find that the same result would follow from either standard, we need

not resolve which standard is appropriate.

The Sixth Amendment, applied to the states by the Fourteenth Amendment,

ensures that “[i]n all criminal prosecutions, the accused shall enjoy the right to a .

. . trial[] by an impartial jury of the State and district wherein the crime shall have

been committed.” U.S. Const. amend. VI. Due process may require a change of

venue stemming from the “presumed prejudice” following from pretrial publicity

in two related contexts. First, where pretrial publicity is so pervasive and

-51-
prejudicial that a court could not expect to find an unbiased jury pool in the

community, it should “presume prejudice,” necessitating a venue change. Goss,

439 F.3d at 628. Second, change of venue may be required where the effect of

pretrial publicity manifested at jury selection is substantial enough to indicate the

existence of prejudice within the jury pool. Id.

We consider first Mr. Gardner’s claim that the pretrial publicity alone raised

a presumption of prejudice. This is rarely the case. See United States v. Abello-

Silva, 948 F.2d 1168, 1177 (10th Cir. 1991) (“Presumed prejudice is rarely

invoked and only in extreme situations.”), abrogated on other grounds by United

States v. Bagley, 473 U.S. 667 (1985). “[P]rejudice will only be presumed where

publicity ‘created either a circus atmosphere in the court room or a lynch mob

mentality such that it would be impossible to receive a fair trial.’” Goss, 439 F.3d

at 628 (quoting Hale, 227 F.3d at 1332). “Simply showing that all the jurors knew

about the case and that there was extensive pretrial publicity will not suffice . . . .”

Hale, 227 F.3d at 1332 (quoting Stafford v. Saffle, 34 F.3d 1557, 1567 (10th Cir.

1994)).

The Supreme Court has presumed prejudice from pretrial publicity alone

only in exceptional settings—where the trial became “a hollow formality” or when

the courthouse proceedings were overrun by the press “to accommodate the public

appetite for carnival.” Murphy, 421 U.S. at 799. See, e.g., Sheppard v. Maxwell,

384 U.S. 333 (1966) (massive publicity insisted that defendant was guilty;

-52-
veniremen’s names were published and prospective jurors were inundated by calls

and letters); Estes v. Texas, 381 U.S. 532 (1965) (circus atmosphere created when

pretrial hearings were broadcast live to community and at least twelve cameramen

took motion or still pictures throughout the proceedings); Rideau v. Louisiana, 373

U.S. 723 (1963) (sheriff videotaped defendant’s detailed jailhouse

confession—taken during “kangaroo court” proceedings without lawyer

present—and assisted in broadcasting it numerous times to relatively small

community).

Although the courthouse shooting generated significant pretrial publicity,

Mr. Gardner points to nothing that suggests his trial devolved into a “circus.”

Both the pretrial publicity and the survey conducted by the defense illustrated only

that it was widely known that Mr. Gardner was involved in the courthouse

shooting—a fact already conceded by the defense. See Gardner I, 789 P.2d at

277. It did not indicate that members of the venire had developed a fixed opinion

as to whether Mr. Gardner’s actions satisfied the legal standard for first degree

murder. Nor was there any harassment of veniremen or indication that the media

had so pervaded the proceedings as to create a carnival-like atmosphere.

As we have previously explained, “[P]re-trial publicity in topical criminal

cases is inevitable.” Abello-Silva, 948 F.2d at 1176. If we were to require the

relocation of every trial following a crime about which multiple stories were

broadcast or published, the local trial of newsworthy cases would become the

-53-
exception rather than the rule. Here, Mr. Gardner points to no circumstances so

exceptional as to suggest that Mr. Gardner was unable to obtain a fair trial in Salt

Lake City. Therefore, we cannot say that the Utah Supreme Court unreasonably

concluded that a change of venue on the basis of pretrial publicity alone was

unnecessary.

Mr. Gardner also fails to demonstrate that jury selection manifested such

prejudice as to deprive him of a fair trial. A change of venue is warranted when

“the jurors demonstrated actual partiality or hostility that [could] not be laid

aside.” Jeffries v. Blodgett, 5 F.3d 1180, 1189 (10th Cir. 1993). “We review [for

prejudice based on jury selection] by examining the totality of the circumstances,”

Stafford, 34 F.3d at 1567, bearing in mind that “[t]he trial court has broad

discretion in gauging the effects of allegedly prejudicial publicity and in taking

measures to insure a fair trial.” Abello-Silva, 948 F.2d at 1177. We may consider

both the jury’s responses to voir dire, as well as the nature and extent of the

questions asked by the judge to ensure an impartial jury. See id. at 1177–78.

Evidence of community sentiment at jury selection has been used to

invalidate a conviction in the rare situation when voir dire indicates that the

pretrial publicity had such a pervasive effect that a fair jury could not be seated.

In Irvin v. Dowd, 366 U.S. 717 (1961), for instance, the Supreme Court invalidated

a conviction where (1) the trial court had excused over half of the venire for cause

due to fixed opinions as to the defendant’s guilt, (2) ninety percent of jurors

-54-
entertained some opinion as to guilt, and (3) eight of twelve jurors actually seated

“thought defendant was guilty.” See Goss, 439 F.3d at 629 (describing Irvin).

In recent years, the Supreme Court has made clear, however, that

community prejudice should be inferred from voir dire only in exceptional cases.

Thus, in Patton v. Yount, 467 U.S. 1025 (1984), the court found there was no

manifest error in refusing to change venue even though (1) pretrial publicity

revealed inadmissible information such as defendant’s prior conviction for murder

and confession; (2) seventy-seven percent of jurors admitted they had an opinion

about defendant’s guilt; and (3) eight of the fourteen jurors and alternates actually

sat had an opinion as to guilt. See Goss, 439 F.3d at 629 (describing Patton).

In this case, although roughly fifty-five percent of jurors professed that they

had formed an opinion about Mr. Gardner’s guilt, Aplt. Br. 83, only four of twelve

actually seated jurors indicated that they had formed an opinion to guilt—even

fewer than in Patton. Of equal importance is the conscientiousness with which the

trial judge worked to seat an impartial jury. “Voir dire examination serves the

dual purposes of enabling the court to select an impartial jury and assisting

counsel in exercising peremptory challenges.” Mu’Min v. Virginia, 500 U.S. 415,

431 (1991). The trial judge ably advanced both these goals through his conduct of

voir dire in this case. Over five days, the trial court examined each of the

prospective jurors personally about their knowledge of the facts of the case, as

well as their ability to set aside pre-formed opinions and try the case solely on the

-55-
evidence introduced at trial. The judge also inquired into the source and content

of media information to which the venire had been exposed. Finally, he allowed

counsel for both the prosecution and the defense to further question prospective

jurors about their exposure to pretrial publicity. As a result, every member of the

venire ultimately placed on the jury had assured the trial court that he or she could

decide the case on the presented evidence alone.

The inference of actual prejudice here is no stronger than in other cases

where we have rejected such claims. See, e.g., Hale, 227 F.3d at 1333 (affirming

finding of no actual prejudice where trial occurred five to six months after crime,

half of seated jury had opinions as to guilt or innocence, and trial judge asked only

twice whether there were any jurors who felt they could not be impartial). Given

the extent of the trial court’s inquiry, as well as the nature of jurors’ responses to

those questions, we cannot say that the “high hurdle” necessary to establish the

presence of prejudice has been met in this case. Goss, 439 F.3d at 630.

Consequently, the facts do not establish either manifest error or that the Utah

Supreme Court unreasonably applied Supreme Court precedent by rejecting claims

of actual prejudice on the basis of jury selection.

F. Security Measures and Shackling

Mr. Gardner also argues that the security measures taken during his

trial—including the presence of four security officers wearing bulletproof vests,

electronic screening devices at the courtroom entrance, escorts for the jurors to get

-56-
to their cars after dark, and, most importantly, visible shackles—violated his Sixth

Amendment right to a fair trial by labeling him in the jurors’ eyes as particularly

dangerous. To determine whether the presence of security measures in the

courtroom violates the Sixth Amendment, we normally ask “whether what [the

jurors] saw was so inherently prejudicial as to pose an unacceptable threat to

defendant’s right to a fair trial; if the challenged practice is not found inherently

prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.”

Holbrook v. Flynn, 475 U.S. 560, 572 (1986). Shackling, however, is deemed

inherently prejudicial, Illinois v. Allen, 397 U.S. 337 (1970), and should be

allowed only if “there are compelling reasons which would justify the use of

physical restraints” such that the Sixth Amendment rights “yield to the competing

interests of the courtroom participants for the safe conduct and orderly progress of

the trial.” United States v. Hack, 782 F.2d 862, 867 (10th Cir. 1986).

In Hack, we held that the trial court had not abused its discretion when it

shackled two defendants who were on trial for attempting to forcibly hijack a

prison transport plane and effect their escape. Id. at 867–68. Mr. Gardner posed a

nearly identical situation. He not only had a history of violence, but was on trial

for a murder committed while attempting to escape from a courthouse. The judge

was justified in taking precautions to prevent another attempt. Mr. Gardner

nonetheless attempts to distinguish Hack by noting that the judge in that case had

“weighed all relevant factors based on the uncontroverted information available to

-57-
him in considering the most appropriate precautionary measures” and his reasons

were “sufficiently documented.” Id. at 868. Here, in contrast, the only record of

the trial court considering what security measures would be appropriate arose

when, mid-trial, Mr. Gardner objected to the presence of security guards within the

courtroom and the court took steps to limit their visibility. We do not take the

lack of detailed findings to mean that the court had abdicated its duty to weigh the

need for precautions against the costs to Mr. Gardner, though, or to mean that the

court was unjustified in allowing these extreme security measures. More likely it

is the result of Mr. Gardner’s not objecting to the security until the trial was well

underway, and even then to object to only one particular measure, which the court

immediately addressed. As Mr. Gardner had a history of violent escape attempts,

the court had compelling reasons that justified these security precautions, and Mr.

Gardner’s Sixth Amendment rights had to yield to the competing interest of

ensuring the safety of the trial participants.

G. Hypnotically Refreshed Testimony

Unbeknownst to both Mr. Gardner and the prosecution, Mr. Macri, one of

the witnesses to the shooting in the archive room, underwent hypnosis between

testifying at the preliminary hearing and testifying at trial. Mr. Gardner argues

that Mr. Macri’s post-hypnotic testimony violated his rights under both the Due

Process and Confrontation Clauses. We have rejected the per se constitutional

invalidity of hypnotically-refreshed testimony, Robison v. Maynard, 829 F.2d

-58-
1501, 1508 (10th Cir. 1987), overruled on other grounds by Romano v. Gibson,

239 F.3d 1156 (10th Cir. 2001), but we have also said that “[a] reviewing court

must determine whether safeguards have been employed to insure reliability of the

testimony to make it admissible.” Id.; see also id. at 1508, n.8 (identifying some

of the safeguards that had been present, such as making a record of the hypnotic

session and performing the hypnosis in a manner designed to “minimize the danger

of contamination”). This case, however, is quite different from the usual instances

of hypnotically-refreshed testimony, as the hypnosis was not undertaken at the

behest of the state but at the witness’s own initiative, without the state’s

knowledge and without its ability to ensure safeguards.

The Utah Supreme Court did not address whether the hypnosis amounted to

a constitutional error, but instead found that Mr. Gardner was not prejudiced by

any error that might have occurred, as Mr. Macri’s testimony “went only to a

collateral issue that was, at most, marginally related to Gardner’s defense.”

Gardner II, 888 P.2d at 614. We agree. At the preliminary hearing, before

undergoing hypnosis, Mr. Macri testified that he was standing behind a door when

Mr. Gardner entered the archives room, and that he fled by going around the door.

He testified, somewhat uncertainly, that as the door closed behind him, the gun

went off, and that the events occurred simultaneously. At trial, after undergoing

hypnosis, Mr. Macri testified with much more certainty that “simultaneous doesn’t

quite describe the motion.” Mr. Gardner contends that this change in testimony

-59-
was prejudicial because the pre-hypnosis testimony supported the theory that the

door slammed shut before the gun went off, suggesting that he fired because he

was startled by Mr. Macri rushing out the door. Pre-hypnosis, Mr. Macri was a bit

uncertain about the order of events but testified that his running out the door and

hearing the gunshot all happened at about the same time, whereas after hypnosis

he was more certain that the gun went off before the door closed behind him. In

both versions, though, the door had already started to close before Mr. Gardner

fired the gun, and both supported Mr. Gardner’s startle theory and his own

testimony that he had seen “a blur in front of [his] eyes” (i.e., Mr. Macri) and

heard “another explosion.” Whether or not the use of post-hypnotic testimony was

a constitutional violation, the slight difference in testimony the hypnosis may have

produced was not enough to prejudice Mr. Gardner.

H. Witness Tampering

Mr. Gardner claims that the other eyewitness to the shooting, Kenneth

Seamons, was “manipulated” by the prosecutor into altering his testimony during

trial. An examination of what actually happened, however, belies any inference of

prosecutorial indiscretion. At trial, Mr. Seamons testified that Mr. Gardner had

pointed the gun at Mr. Burdell, and that “[t]he gun went off.” The trial then

recessed for lunch. At lunch, the prosecutor told Mr. Seamons that he was “being

too polite” in saying that the gun went off, and that “either [Gardner] did or he

didn’t” pull the trigger. He did not instruct Mr. Seamons to lie or even to change

-60-
his testimony, but only instructed him to tell how it happened. After lunch, Mr.

Seamons then clarified that “Gardner shot Burdell”—testimony that was not

inconsistent with his earlier testimony. Showing a witness how his phrasing could

be misinterpreted and then instructing that witness to “tell how it happened” is not

witness tampering, but being a good lawyer.

I. Bifurcation

Utah law provides that aggravated murder can be a capital felony. One way

in which a murder can be aggravated is if “the actor was previously convicted of”

certain crimes. Utah Code Ann. § 76-5-202(1)(j). Mr. Gardner argues that the

failure to have a bifurcated trial for his aggravating circumstances—two prior

robbery convictions—prejudiced him. He cites State v. James, 767 P.2d 549, 557

(Utah 1989), which held that “[w]hen the underlying crime is charged, and

enhancing circumstances involving other crimes . . . are also charged for the

purpose of increasing the severity of the punishment for the underlying crime, the

trial court must divide the trial into separate segments.” (emphasis added) (citing

State v. Bishop, 753 P.2d 439, 498 (Utah 1988)). Admitting prior crimes is

“presumed prejudicial” to the defendant. Id. at 557.

Mr. Gardner says that the failure to bifurcate violated his “fundamental

rights and constitutional guarantee of not having his death sentence imposed in an

arbitrary and capricious manner.” Aplt. Br. 104. Mr. Gardner cites no direct

-61-
authority tying the right established in James (decided after Mr. Gardner’s trial) to

a federal right.

In the state supreme court, concurrences by Justices Stewart and

Zimmerman asserted that, in allowing the evidence of Mr. Gardner’s two prior

robberies, the trial court erred. Gardner I, 789 P.2d at 289. Justice Zimmerman,

however, reasoned that the error was harmless. First, Justice Zimmerman stated

that the prosecutor referred to the two robberies “only as necessary to demonstrate

that the State had proven the aggravating element of first degree murder.” Id. at

290 (Zimmerman, J., concurring). Second, Justice Zimmerman noted that Mr.

Gardner referred to his past crimes when he was on the stand. Id. Mr. Gardner

“took the stand and disclosed his extensive criminal record, which included other

convictions that were more prejudicial than the two robberies.” Id. Evidence of

Mr. Gardner’s prior crimes were thus admissible in order to impeach Mr. Gardner,

as his counsel concedes. Aplt. Br. 105. The defendant shrugs this off as the

product of ineffective assistance of counsel, but we have rejected that claim above.

See supra at 25-26.

Both of these reasons echoed ones given by the majority. Gardner I, 789

P.2d at 279–80. In addition, the majority claimed that “because defendant’s guilt

was manifest by overwhelming direct evidence” there was no risk that the

inclusion of his prior convictions would have had any prejudicial effect on the

conduct or outcome of the trial. Id. at 279.

-62-
 We find these three reasons persuasive and conclude that the failure to

bifurcate the trial did not unfairly prejudice Mr. Gardner.

J. Failure to Instruct on All Statutory Mitigating Factors

Mr. Gardner makes the strained argument that the jury should have been

instructed that he may have “acted under extreme duress.” Utah Code Ann. § 76-

3-208(2)(c) (1990). Mr. Gardner says the jurors could have concluded that Mr.

Gardner “was in a state of physical duress,” Aplt. Br. 107, as a result of his

gunshot wound and his general panic. This is not a convincing argument.

First, the statutory factor would seem to apply only to cases where a person

is acting under the duress placed on him or her by another, not when any abstract

“force” (such as pain or disorientation) is working on the person. Mr. Gardner

cites the unpublished case, Horton v. Massie, 203 F.3d 835 (Table), 2000 WL

107386 (10th Cir. 2000), in which a person was threatened with death or physical

injury by another. This, however, seems the classic instance of duress

contemplated by the statute. See Utah Code Ann. § 76-3-207(2)(c) (mitigating

circumstance if “[t]he defendant acted under extreme duress or under the

substantial domination of another person.” (emphasis added)). Physical duress by

gunshot wound, in contrast, is a stretch. No one forced or coerced Mr. Gardner

into firing a shot.

Second, the instruction to the jurors allowed them to consider “any other

fact in mitigation of the penalty.” Utah Code Ann. § 76-3-207(2)(g). They

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certainly could have considered Mr. Gardner’s extreme physical duress, especially

if this was a central theme of his defense, as he alleges. Aplt. Br. 107. The court

also instructed the jury that the mitigating factors it listed were merely examples

and not exclusive. Aple. Br. at 119 (quoting R. 613–17). This is all that was

required of it. See Bryson v. Ward, 187 F.3d 1193, 1209–10 (10th Cir. 1999). We

see no error.

K. Presumption of Death

The judge instructed the jury in this case that: “When in the course of your

deliberations you either reach a unanimous verdict of death, or you become

reasonably satisfied that such a unanimous verdict will not be rendered, you will

notify the bailiff that you are ready to report to the Court.” Vol. LIX, Additional

Instructions, 6. The instruction also said:

Your verdicts must be either:

We the jury impaneled in the above case having heretofore found the
defendant guilty of Criminal Homicide, Murder in the First Degree,
Count I of the Information, unanimously render a verdict of death; or

We the jury impaneled in the above case, Count I of the Information
find that our deliberations have been concluded and we are reasonably
satisfied that we will not reach a unanimous verdict of death.

The foreman will sign the appropriate verdict, and not the other, and
bring both verdict forms back into the Court.

Id. at 7. Mr. Gardner claims that the jury instructions could reasonably have been

read as requiring unanimity for the jury to decide not to impose the death penalty,

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and that this amounts to a constitutional violation. Aplt. Br. 110 (citing McKoy v.

North Carolina, 494 U.S. 433, 442–43 (1990)). Mr. Gardner contends that the

jurors should have been told that an individual juror could exercise his own

judgement and give full effect to a mitigating circumstance, even though other

jurors did not.

The magistrate judge found that there was nothing in the jury instructions

indicating that “the jury must unanimously find mitigating circumstances to exist.”

Mag. Rep. 227. Moreover, the jury instructions above are clear that unanimity is

only required for the death penalty to be imposed; if the jury is not unanimous on

that point, then they will reach the alternative verdict (a life sentence). Indeed, as

the magistrate judge explained, “[t]he only time the instructions provide that the

jury must be unanimous is in their explanation of how the jury could impose a

sentence of death.” Mag. Rep. 227–28. The district court adopted the reasoning

of the magistrate judge, and we agree that no reasonable juror could have

construed the instructions to require the jury to be unanimous in order not to

impose a sentence of death.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the district court.

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