Lafferty v. Benzon

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
August 12, 2019
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
_________________________________

RONALD WATSON LAFFERTY,

Petitioner - Appellant,

v. No. 18-4016
(D.C. No. 2:07-CV-00322-DB)
LARRY BENZON, Warden of the Utah (D. Utah)
State Prison,

Respondent - Appellee.
_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________

Before BRISCOE, HOLMES, and CARSON, Circuit Judges.
_________________________________

Petitioner Ronald Watson Lafferty was convicted in Utah state district court of

multiple criminal charges, including two counts of first degree murder, and was

sentenced to death. After exhausting his state court remedies, Lafferty sought federal

habeas relief by filing a petition in federal district court pursuant to 28 U.S.C. § 2254.

The district court denied his petition and also denied him a certificate of appealability

(COA). Lafferty has now filed a renewed motion with this court seeking a COA on four

claims that were asserted in his federal habeas petition. We deny a COA and dismiss this

matter.
 I

Factual background

Lafferty grew up in Orem, Utah and was a member of the Church of Jesus Christ

of Latter-day Saints (the LDS Church). During the period between 1982 and 1983, he

became increasingly critical of the LDS Church and he was excommunicated in 1983.

The following year, Lafferty’s wife Diana filed for and obtained a divorce and

moved with their six children to Florida. Lafferty felt his excommunication was unjust

and was distraught over the dissolution of his marriage.

Lafferty and some of his brothers organized themselves into what he called the

“School of the Prophets.” The brothers claimed that they received communications from

God and they would meet as a group to discuss these “revelations.”

It was during this time that Lafferty first told his brothers that he had received a

revelation that his ex-wife Diana had been the wife of the devil in a previous world.

Lafferty believed their union angered the devil, who in turn caused him trouble in this

world out of jealousy. In the spring of 1984, Lafferty claimed to have received another

revelation from God (the “removal revelation”) ordering that four people were to be

“removed.” Among those to be “removed” were his brother Allen’s wife Brenda, their

fifteen-month-old daughter Erica, Richard Stowe, and Chloe Low.

Prior to this time, Lafferty had expressed negative feelings to other family

members and friends about the four persons named in the removal revelation. He

believed that all four in some way had either helped his wife obtain a divorce or played a

part in his excommunication from the LDS Church.

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 In conjunction with the removal revelation, Lafferty claimed to have received

another revelation on March 13, 1984, commanding that he and the School of the

Prophets “consecrate” an “instrument” to be used in the removal of the four named

individuals. When he discussed this new revelation, only two of his brothers, Dan and

Watson, agreed to such an action; the others involved with the School of the Prophets felt

that this and the removal revelation were not of God and disassociated themselves from

the revelations. The School of the Prophets disbanded because of disagreement over this

issue, but Dan and Lafferty continued in their belief that the revelations needed to be

fulfilled.

On July 24, 1984, Lafferty, Dan and two other men, Charles Carnes (“Chip”) and

Ricky Knapp, drove together to Brenda’s apartment. Lafferty and Dan went into the

apartment. The other two men stayed in the car. Brenda was beaten, strangled with a

vacuum cord, and had her throat slit. Brenda’s fifteen-month-old daughter also had her

throat slit.

The men next drove to Low’s house. After they determined no one was there, the

men broke into the house and took numerous items. As they left Low’s house, Lafferty

began talking about going on to Stowe’s home.

After accidentally missing the turnoff to Stowe’s home, Dan and Lafferty decided

to abandon trying to fulfill the rest of the revelation. They stopped at a service station

and then headed toward Wendover. Chip testified at trial that during the drive Lafferty

admitted to killing Brenda. Chip also testified that Lafferty thanked Dan for killing the

baby.

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 Once in Wendover, the group rented a small kitchenette apartment where they

cleaned up, ate, and spent the night. The next night, afraid of what the Lafferty brothers

had said they had done, Ricky and Chip quietly left the apartment and drove away in the

car. They were arrested in Cheyenne, Wyoming on July 30, 1984. Lafferty and Dan

were taken into custody by the FBI in Reno, Nevada, on August 17, 1984.

Procedural background

A. The original state criminal proceedings

Lafferty was charged in Utah state district court with two counts of first degree

murder, two counts of aggravated burglary, and two counts of conspiracy to commit first

degree murder. Lafferty’s competency to stand trial became a key issue, but the state

trial court ultimately found Lafferty competent to stand trial. At trial, Lafferty was

convicted by a jury on all counts and sentenced to death. The Utah Supreme Court

subsequently affirmed Lafferty’s convictions and sentence.

B. Lafferty’s first federal habeas petition

Lafferty filed a petition for federal habeas relief pursuant to § 2254. The district

court denied the petition and Lafferty appealed. This court concluded that the state trial

judge had applied the wrong legal standard in determining Lafferty’s competency to

stand trial. See Lafferty v. Cook, 949 F.2d 1546, 1556 (10th Cir. 1991). This court

further concluded that a competency determination could not, as a matter of law, be made

on the record that existed, and it also concluded that the passage of time rendered

impractical a remand for an after-the-fact competency hearing. Id. In light of these

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conclusions, this court granted the writ, vacated Lafferty’s convictions and sentence, and

ordered that the State of Utah was free to retry Lafferty. Id.

C. The second state criminal proceedings

The State of Utah charged Lafferty again with two counts each of first degree

murder, first degree aggravated burglary, and second degree conspiracy to commit

criminal homicide. The case was assigned to a different judge than the one who presided

over the first trial. A competency hearing was held in November of 1992 and the state

trial court found that Lafferty was not competent to stand trial due to mental illness.

Lafferty was returned to the state hospital for treatment. A subsequent competency

hearing was held in February 1994 and, at that time, the state trial court found that

Lafferty was competent to stand trial.

Due to unrelated delays, the trial did not begin until February of 1996. During the

early stages of the trial, Lafferty was removed from the courtroom on several occasions

for engaging in verbal and physical outbursts. In light of that behavior, the State filed a

motion asking the court to determine whether another competency hearing was required.

Lafferty was interviewed by two experts who reached conflicting conclusions about his

competency to stand trial. As a result, the state trial court determined that a full

competency hearing was necessary. The state trial court requested that the eight expert

witnesses who had previously examined Lafferty—four expert witnesses for the State and

four expert witnesses for the defense—do so again to determine his current competency.

A competency hearing was held in March 1996. The four expert witnesses for the

State all agreed that Lafferty was competent to stand trial. Three of the defense experts

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opined that Lafferty was mentally ill and not competent to stand trial. The remaining

defense expert opined that further observation was needed to make a competency

determination. After considering all of these opinions, the state trial court found that

Lafferty was competent to stand trial.

The trial proceeded and, in April 1996, the jury found Lafferty guilty on all

counts. Lafferty was sentenced to death for both first-degree murder counts.

Lafferty unsuccessfully challenged his convictions and sentences on both direct

appeal and in a state post-conviction proceeding.

D. Lafferty’s second federal habeas petition

In May 2007, Lafferty initiated these proceedings by filing another petition for

federal habeas relief pursuant to § 2254. Lafferty twice amended his petition. The

district court ultimately denied federal habeas relief in October 2017.

Lafferty moved to alter or amend the judgment, focusing specifically on the

district court’s resolution of one of his claims of ineffective assistance of appellate

counsel. The district court denied the motion and also declined to issue a COA on any of

the claims asserted by Lafferty.

II

Lafferty has filed a renewed motion with this court seeking a COA on four claims

that were asserted in his first amended habeas petition: claims one, two, nine (partial),

and twenty-seven. 1 We may issue a COA only if Lafferty makes “a substantial showing

Lafferty filed a second amended habeas petition, but it included only one
1

claim—an additional thirty-fifth claim—and Lafferty does not seek a COA on that claim.
6
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, Lafferty must

show that reasonable jurists could differ as to whether these claims should have been

resolved differently. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). As we discuss in

greater detail below, Lafferty has failed to make this showing with respect to any of the

four claims on which he seeks a COA.

Claim 1 – Did the State of Utah have jurisdiction to retry Lafferty?

In Claim 1 of his first amended habeas petition, Lafferty argued that the state trial

court lacked jurisdiction to retry him. The claim, as argued by Lafferty, hinged on the

procedural history of his first federal habeas proceedings. After the federal district court

denied Lafferty’s first federal habeas petition, Lafferty filed an appeal and also sought

and was granted by this court a stay of execution pending appeal. More specifically, on

February 12, 1990, this court issued a stay order which granted a stay of Lafferty’s

execution “pending further order of this court.” R., Vol. I at 1031. Nearly two years

later, on December 9, 1991, this court issued its opinion granting federal habeas relief in

favor of Lafferty, vacating his convictions and sentence, and noting that the State of Utah

was free to retry Lafferty. The judgment in the case, which was entered on December 10,

1991, stated, in pertinent part: “The cause is remanded to the United States District Court

for the District of Utah for further proceedings in accordance with the opinion of this

court.” Id. at 1032. On May 26, 1992, this court sent a letter to the federal district court

with copies of the Opinion and Judgment. The letter stated that these two documents

“constitute the mandate in the subject case” and “[b]y direction of the court, the mandate

shall be filed immediately in the records of the trial court.” Id. at 1033. On June 1, 1992,

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the federal district court filed the mandate. Id. at 1034. In July 1992, the State of Utah

began the process of retrying Lafferty and the federal district court granted the State’s

request to release the state court records back to the state trial court in order to prepare for

Lafferty’s retrial. Lafferty argues, based upon this procedural history, that the state trial

court lacked jurisdiction to retry him. According to Lafferty, the federal district court

failed to effectuate this court’s mandate and that, consequently, this court’s original stay

of execution issued on February 12, 1990, remained in effect at the time of, and

effectively barred, Lafferty’s retrial which commenced in April 1996.

Lafferty first raised this claim in a petition for rehearing that he filed with the Utah

Supreme Court on September 28, 2007, following its affirmance of the state trial court’s

denial of Lafferty’s petition for post-conviction relief. The Utah Supreme Court

summarily denied the rehearing petition without any discussion.

The district court in this habeas action also denied the claim. In doing so, the

district court concluded that Lafferty had failed to establish that the Utah Supreme

Court’s decision was contrary to, or an unreasonable application of, clearly established

federal law, as determined by the Supreme Court of the United States. The district court

explained that Lafferty had cited “no Supreme Court case holding that a federal habeas

court must transfer jurisdiction of a state criminal case back to the state courts before the

State may retry a petitioner who has been granted a new trial.” R., Vol. IV at 4275. It

also explained that the district court overseeing the first habeas proceedings “did all that

the mandate required, which was to file the Tenth Circuit’s Opinion and Judgment in the

record.” Id. at 4276.

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 Lafferty fails to establish that reasonable jurists could differ as to whether this

claim should have been resolved in a different manner. Although Lafferty cites to Parker

v. Dugger, 498 U.S. 308, 323 (1991), for the proposition that a federal district court is

required to enter an order directing the state to initiate appropriate proceedings in state

court after the reversal of the denial of federal habeas relief, nothing in Parker holds that

a district court must enter a specific type of order when a denial of federal habeas relief is

overturned. Further, we reject Lafferty’s suggestion that this court’s original stay of

execution pending appeal remained in effect during his subsequent retrial, thereby

rendering those proceedings void. Instead, we conclude that the original stay order

expired on its own terms when this court issued its Opinion and Judgment in the first

federal habeas proceedings. Thus, we conclude that a COA is not warranted on Claim 1.

Claim 2 – Did the retrial violate the Double Jeopardy Clause of the Fifth Amendment?

In Claim 2 of his first amended habeas petition, Lafferty asserted that his retrial

violated the Double Jeopardy Clause. In support, Lafferty asserted that “[r]etrial is

barred if a conviction is reversed because the evidence was legally insufficient” and

“[r]eversal on such grounds is equivalent, for double jeopardy purposes, to a verdict of

acquittal.” R. Vol. I at 371–372 (citing Burks v. United States, 437 U.S. 1, 16–18

(1978)). He in turn argued that this court, in the first federal habeas proceedings,

“vacated [his] original conviction due to an evidentiary equivalent to a verdict of

acquittal, as in Burks, rather than a trial error.” Id. at 375. Lafferty explained that his

“competency claim was intertwined with his claim that the trial court erroneously

prevented his attorney from presenting evidence of his mental illness and/or the

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manslaughter strategy at the first trial.” Id. at 376. Thus, Lafferty argued, his “lack of

competency prevented his attorney from presenting evidence that would have resulted in

an acquittal, or at least a conviction on a lesser offense.” Id.

Lafferty first asserted this claim on direct appeal following his retrial, arguing that

his retrial violated protections against double jeopardy because the trial court erred by

applying the wrong standard for determining competency at his first trial and because the

state withheld evidence relevant to the competency issue. The Utah Supreme Court

rejected the claim, noting that “[r]etrying a case when a ‘trial error’ has occurred does not

place the defendant in double jeopardy.” State v. Lafferty, 20 P.3d 342, 380 (Utah 2001).

The district court in these second federal habeas proceedings likewise rejected the

claim. In doing so, the district court stated that it “agree[d] with the Utah Supreme Court

that the use of the wrong competency standard was mere trial error and not equivalent to

insufficient evidence.” R., Vol. IV at 4278.

After examining Lafferty’s motion for COA and the record, we conclude that

Lafferty has failed to establish that reasonable jurists could differ as to whether the

district court should have resolved this claim in a different manner. Simply put, this

court did not conclude, in the course of ruling in Lafferty’s favor in the first habeas

proceeding, that the evidence presented at his first trial was legally insufficient. Rather,

as the Utah Supreme Court and the district court correctly noted, this court’s ruling

focused exclusively on a trial error that was committed by the state trial court, i.e., the use

of the wrong competency standard. Finally, even if, as Lafferty now suggests, that trial

error precluded his trial counsel in his first trial from presenting evidence relevant to

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Lafferty’s mental illness or a manslaughter strategy, that does not alter the nature of this

court’s holding in the first habeas proceeding.

Claim 9 – Ineffective assistance at trial and sentencing

In Claim 9 of his first amended habeas petition, Lafferty argued, in pertinent part,

that his trial counsel was ineffective for failing to (1) conduct an adequate mitigation

investigation regarding his family history and background, including his mental health

history and his usage of chemical substances, and (2) properly present that mitigating

evidence during the penalty phase of trial. Lafferty now seeks a COA on Claim 9.

Lafferty first presented this claim in his petition for state post-conviction relief.

The state trial court granted summary judgment in favor of the State on this issue. On

appeal, the Utah Supreme Court affirmed the state trial court’s decision. See Lafferty v.

State, 175 P.3d 530, 536–39 (Utah 2007). More specifically, the Utah Supreme Court

concluded that “Lafferty . . . failed to show how [trial] counsel was deficient in his

investigation and how that deficiency created prejudice,” and that “Lafferty presented no

. . . undiscovered exculpatory evidence that would have resulted from a more extensive

mitigation investigation.” Id. at 537.

The district court in this habeas action concluded that Lafferty had failed to

demonstrate that the Utah Supreme Court’s decision was contrary to, or an unreasonable

application of, clearly established federal law. The district court explained: “Although

Lafferty suggests a number of ways that counsel could have improved their performance

during the penalty phase, he does not overcome the ‘strong presumption that counsel’s

conduct [fell] within the wide range of reasonable professional assistance.’” R., IV at

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4288 (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). The district court

further explained that Lafferty had “failed to demonstrate a reasonable probability ‘that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Id. (quoting Strickland, 466 U.S. at 694).

Lafferty, in his motion for COA, cites a number of cases that support the general

proposition that trial counsel needs to investigate and present relevant mitigating

evidence. But, as the district court correctly noted, Lafferty fails to identify any specific

evidence that trial counsel should have, but failed to, discover and present.

Lafferty also asserts in his motion, incorrectly, that his “trial counsel’s case in

mitigation was limited to a simple plea for mercy.” COA Mot. at 23. In fact, Lafferty’s

trial counsel made a number of different arguments in support of mitigation during the

penalty phase. For example, she introduced evidence that Lafferty had no significant

history of prior criminal activity. She also argued that Lafferty was merely an

accomplice in the homicides that Dan committed and that Lafferty’s participation was

relatively minor. Relatedly, trial counsel asked the jury to consider, when determining

Lafferty’s sentence, that Lafferty’s co-defendant Dan was sentenced only to life in prison.

Trial counsel also argued that Lafferty was suffering from mental illness at the time of

the homicides, and that this affected his capacity to appreciate the wrongfulness of his

conduct or to conform his conduct to the requirements of the law. In addition, she asked

the jury to consider Lafferty’s continuing mental illness at the time of trial as a factor that

should mitigate his punishment. Finally, trial counsel noted that Lafferty came from and

was influenced by a dysfunctional family, including a strict and abusive father.

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 Lafferty devotes much of his COA motion to arguing how his trial counsel could

have performed better. For example, he contends his trial counsel should have either

called specific mental health experts to testify again during the penalty phase or,

alternatively, more specifically referenced the testimony that these experts presented in

the guilt phase. But, as the district court aptly observed: “Although Lafferty suggests a

number of ways that counsel could have improved their performance during the penalty

phase, he does not overcome the ‘strong presumption that counsel’s conduct [fell] within

the wide range of reasonable professional assistance.’” R., Vol. IV at 4288 (quoting

Strickland, 466 U.S. at 689).

Moreover, as he did in state court and before the district court, Lafferty fails to

show how trial counsel’s allegedly deficient performance prejudiced him. During the

guilt phase of the retrial, the jury heard testimony from the expert witnesses regarding

Lafferty’s mental health. Later, during the penalty phase of the retrial, the state trial court

instructed the jury that it could consider the evidence previously admitted during the guilt

phase of the retrial. Lafferty’s counsel referred to that evidence and argued that

Lafferty’s mental illness was a mitigating factor that should be considered by the jury.

The district court, noting these same facts, concluded that Lafferty had “failed to

demonstrate a reasonable probability ‘that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’” R., Vol. 4 at 4288. Thus, the

district court in turn concluded that the Utah Supreme Court had not “contradicted or

unreasonably applied controlling United States Supreme Court precedent when it held

that [Lafferty] had not met his burden on the Strickland elements.” Id.

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 In light of the record presented, we are not persuaded that reasonable jurists could

differ as to the district court’s resolution of this claim. Consequently, we deny a COA on

this claim. 2

Claim 27 – The state trial court’s competency determination

In Claim 27 of his first amended habeas petition, Lafferty argued, in pertinent part,

that the state trial court erred in finding him competent to stand trial. Lafferty now seeks

a COA on this claim.

In his direct appeal, Lafferty argued that the opinions of the State’s four expert

witnesses—all of whom found him competent—were not supported by the evidence and

were inconsistent with each other. Lafferty further argued that his own experts—three of

whom found him incompetent and one who said he needed more time to make a

determination—were consistent in their opinions and were also consistent with the state

trial court’s 1992 finding that Lafferty was incompetent.

The Utah Supreme Court rejected this claim, holding “that there was ample

evidence to support the [state] trial court’s finding of competency.” Lafferty, 20 P.3d at

359. The Utah Supreme Court explained:

After considering all evidence presented by the defense, and after the
March 14 competency hearing, [the state trial court] handed down a
detailed memorandum decision and thorough findings of fact regarding

2
Lafferty argues, in connection with Claim 9, that the district court erred in
denying his request for discovery to depose his trial counsel and expansion of the record
to add in a declaration from his trial counsel. To the extent that Lafferty seeks a separate
COA on these arguments, we deny his request. As the State correctly notes, “there is no
room for debate on whether the district court was bound by [Cullen v.] Pinholster[, 563
U.S. 170 (2011)] and that no newly developed evidence would be admissible in the
habeas case.” State Opposition to COA at 21.
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defendant’s competency to stand trial. Having correctly applied the test for
competency as it is set forth in Dusky v. United States, 362 U.S. 402, 80 S.
Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam), and reiterated in Lafferty II,
949 F.2d at 1550, and after carefully considering the opinions of each of the
eight expert witnesses, the trial court found that defendant was not
delusional and did not at the time suffer from a mental illness that would
prevent him from rationally participating in his defense. The court found
that although defendant attached peculiar labels to his religious and
political beliefs, his “ideas were developed through a rationally explained
process” and “drawn from his real experiences in a reality based way.”

In [its] memorandum decision, [the state trial court] addressed the
testimony given by each expert, pointed to each opinion’s strengths and
weaknesses, and concluded that defendant was competent to stand trial.
The court found [the State’s experts,] Drs. Gardner, Golding, Cohn, and
Wootton[,] to be particularly persuasive. The State’s experts supported
their conclusions that defendant was competent to stand trial with specific
examples drawn from their experiences with and interviews of him. They
gave credible and persuasive explanations for defendant’s beliefs and
demonstrated convincingly how defendant’s background and upbringing
contributed to his current state. All of these experts testified that defendant
was grounded in reality. Dr. Gardner was able to specifically help the court
by addressing the competency standard as enunciated [by the Tenth Circuit]
in Lafferty II and by providing examples in explaining his determination
that defendant was competent. He testified many of defendant’s beliefs
could be explained by his religious background. He also testified that
defendant became angry at times with the trial court or examiners because
of specific ideas or expressions he found insulting or upsetting, not because
of a mental disorder. Dr. Golding testified that defendant’s outbursts in
court were voluntary acts intended to disrupt testimony and evidence
against him. He testified that defendant was aware of the proceedings
against him and demonstrated abilities inconsistent with mental illness. Dr.
Cohn testified that defendant demonstrated characteristics that are
incompatible with a finding of psychosis and that defendant’s beliefs and
experiences were based in commonly held beliefs. Finally, Dr. Wootton
testified that defendant’s beliefs, although extreme, had a basis in his
religious upbringing. He testified that defendant’s so-called delusional
ideas were actually metaphors for rational thought processes. For example,
defendant’s in-court verbal outbursts, which he termed “reflector shields,”
were his way to disrupt perceived inaccuracies at trial.

[The state trial court] also stated [its] reasons for giving less
credence to witnesses called by the defense. [It] pointed out that Dr.

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 Groesbeck’s and Dr. Washburn’s opinions, though the most persuasive of
the defense’s experts, were conclusory and lacked sufficient analysis and
detail to support their opinions. “A finder of fact, whether judge or jury, is
free to reject diagnoses and conclusions that are not adequately explained.”
Lafferty I, 749 P.2d at 1245. In addition, [the state trial court] noted that
Dr. Heinbecker could not determine whether defendant was malingering to
avoid trial or was indeed delusional. He gave even less weight to Dr.
Howell who, by his own admission, testified that at previous competency
hearings specifically regarding defendant, he had testified and submitted
written reports contrary to his own personal analysis and “caved in” to
pressure from other examiners.

The [state trial] court also stated its observations of defendant during
the pretrial proceedings. [It] indicated that defendant was appropriate,
polite, and cooperative during the competency hearings and that he was
able to respond appropriately to various situations and events. The [state
trial] court noted, “He exhibits interpersonal relatedness, warmth, reason,
linear thought, and a lively sense of humor.”

Id. (paragraph numbers omitted). Lastly, the Utah Supreme Court stated: “The fact that

the findings of [the second trial judge] in the 1996 competency hearing were different

from those of [the original trial judge] in the 1992 hearing does not undermine the 1996

competency determination.” Id.

The district court in this habeas action concluded, in disposing of Claim 27, that

Lafferty had failed to “demonstrate[] that the Utah Supreme Court unreasonably applied

established federal law when it rejected his claim that the [state] trial court violated his

due process rights when it found him competent to stand trial.” R., Vol. IV at 4308. The

district court noted, in support, that “Lafferty d[id] not suggest any meaningful reason

other than his own expert’s [sic] testimony to demonstrate that he was incompetent to

stand trial.” Id. The district court also noted that the Utah Supreme Court had confirmed

that the state trial court employed “the competency standard discussed in Dusky v. United

16
States, 362 U.S. 402 (1960),” and that the state trial court “made its findings only ‘after

carefully considering the opinions of the eight expert witnesses.’” Id. (quoting Lafferty

20 P.3d at 358). Lastly, the district court determined that “there [wa]s ample evidence to

support the [state] trial court’s finding that Lafferty was competent to stand trial, and that

the State’s experts’ opinions were entitled to more weight than Lafferty’s experts.” Id. at

4309. Indeed, the district court noted that the state trial court “issued a 16-page

memorandum decision that detailed why the State’s experts’ testimonies were more

persuasive than Lafferty’s experts.” Id.

Lafferty, in the motion for COA he filed with this court, asserts three unexhausted

arguments. To begin with, he complains that the state trial court “relied on an

unverifiable theory of delusions propounded by two of the State’s experts, which was not

in accord with the standard enunciated in the Diagnostic and Statistical Manual of Mental

Disorders (4th ed.) (DSM-IV) to find that Lafferty’s beliefs developed in a reality-based

way and that he was, therefore, not mentally ill and competent to stand trial.” COA Mot.

at 61. Second, he argues that the state trial court mischaracterized the testimony of Dr.

Groesbeck, one of the defense experts. Third, he argues that the opinion of State’s expert

Dr. Gardner that Lafferty was not mentally ill and had never suffered from symptoms of

psychosis was undermined by Dr. Gardner’s own prior evaluation and testimony.

Because none of these arguments were presented by Lafferty to the Utah Supreme Court

on direct appeal, they are unexhausted and not properly before us. See Picard v. Connor,

404 U.S. 270, 276 (1971) (noting that the exhaustion requirement requires “that the

federal claim must be fairly presented to the state courts”).

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 In the remainder of his motion for COA, Lafferty argues that the state trial court

failed to (1) note inconsistencies between the testimony of Dr. Gardner and Dr. Cohn,

two of the State’s expert witnesses, and (2) question the opinion of Dr. Golding, another

of the State’s expert witnesses, that Lafferty was situationally competent. Lafferty also

disputes the state trial court’s finding that the State’s expert witness opinions were

entitled to more weight than the opinions offered by the defense’s expert witnesses.

None of these arguments, however, persuade us that reasonable jurists could differ as to

whether Claim 27 should have been resolved differently by the district court.

We therefore deny Lafferty’s request for a COA as to Claim 27.

III

The motion for COA is DENIED and the matter is DISMISSED.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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