TurTh is op inion is sub ject to rev ision b e

fore final p u b lication in th e Pacific Rep orter 2014 UT 19

I N THE 

## S U P R E M E 

## C O U RTO FT H E 

## S T AT E O F 

## U T AH

T AB E RONE D AVE H ONI E, Petitioner and Appellant,

v. STATE OF U TAH, Respondent and Appellee.

No. 20110620 Filed May 30, 2014
Fifth Distr ict, Cedar City The Honor able G. Michael Westfall

No. 030500157

Attor n eys: Jon M. S a nds, Ther ese M. Day, Dav id A. Chr istensen, S alt Lake City, for petitioner and appellant Thomas B. Br unker , S alt Lake City, for r espondent and appellee
J UST I CE P ARRI SH

author ed the opinion of the Cour t, in which C H I E F J UST I CE D URR ANT, A SSO C I ATE C H I E F J UST I CE N E H RI N G, J UST I CE D UR

HAM , and J UST I CE L E Ejoined.

J UST I CE P ARRI SH, opinion of the Cour t:

INTRODUCTION ¶1 In May 1 999, Petitioner Tab e r o n e Dav e Honie was conv icted of a ggr av ated mur der

. M r

. H onie waiv ed his r ight to a jur y at sentencing and was subsequently sentenced to death by the tr ial judge. Following a n unsuccessful d i r ect appeal, Mr

. Honie sought postconv iction r elief pur suant to the Utah Pos t C o nv iction Remedies Act (PCRA). This case comes befor e the cour t on appeal fr om a gr an t of summary judgment denying Mr

. Honie postconv i ction r elief on the b asis of ineffectiv e assistance of counsel. Mr

. Honie also br ought a motion under r ule 60(b) of the Utah Rules

o f C i v il Pr ocedur e to set aside the postconv iction cour t’s fina l judgment. That m otion wa s a ls o d enied and Mr

. Honie appealed. We hav e consolidated the appeals forr ev iew and decision.H ONI E v. S TATE Opinion of the Cour t ¶2 On appeal, Mr

. Honie ar gues that the postconv iction cour t
er r ed when it gr anted the S tate’s motions for s u m m a r y j udgment. He also claims that the postconv iction cour t abused its discr etion in denying his rule 60(b) motion. We hold that Mr

. Honie h as failed to
r aise a genuine issue of mater ial f act as to the fir st set of claims and that the distr i ct cour t did not abuse its discr etion in r egar d to its r ule 60(b) denial. W e accor dingly affir m the postconv iction cour t’s gr ant of summary judgment and denial of r ule 60(b) r elief. BACKGROUND ¶3 Mr

. Honie was c o nv icted of a ggr a vated mur der and sentenced to d eath. This c our t affir med his conv iction a nd sentence
on d i r e ct a ppeal. State v. Honie , 2002 UT 4, 57 P.3d 977 (Honie I ). Mr

. H onie subsequently file d a petition for p ostconv iction r elief, alleging ineffectiv e a ssistance of tr ial counsel. Although we pr e v i o u s ly detailed the facts of Mr

. Honie’s cr ime i n Honie I , we br iefly r estate the r elev ant facts her e.

I. THE MURDER OF CLAUDIA BENN ¶4 On July 9, 1998, Mr

. H onie mur der ed Claudia Be nn

. At appr oximately 8:00 p

. m

. o n the ev ening of the mur der , Mr

. Honie telepho ne d C a r o l P i ky av it, the v ictim’s daughter , asking her to come
see him at the house wher e he was s taying. Car ol r efused, tell i ng Mr

. H onie she n eeded to go to wor k. Mr

. H onie b ecame upset and thr eatened that if Car ol did not come to meet him, he would kill her mother and hernieces. ¶5 Between his fir st telephone call at 8:00 p.m. and t h e time Car ol left for wor k, Mr

. Honie telephoned twice mor e. Car ol and her sister , Benita, left for wor k at appr oximately 10:30 p .m., leav i ng their thr ee childr en with Claudia. 1 The childr en wer e dr essed and r eady for bed when Car ol and Benita left. ¶6 Ar ound 11:20 p.m., a c ab dr i v er picked up Mr

. H onie. Although the cabdr iv er could tell that Mr

. Honie was i ntoxicated, Mr

. Honie was still able to gi v e h im dir ections to the v ictim’s neighbor hood. ¶7 At appr oximat e ly 1 2 : 2 0 a

. m ., sev er al police officer s ar r iv ed at the v i ctim’s home in r esponse to a n e i g hb o r ’s 911 call. Upon
ar r iv ing at the v ictim’s home, the officer s noticed that a s liding glass

1 One of the childr en, T.H., is the daughter of Car ol and Mr

. Honie. The other two childr en, D .R. and T.R., belong to Benita.

2Cite as: 2014 UT 19 Opinion of the Cour t
door had been br oken, per mitting entr y to the h ome. Th e o fficer s or der ed the occupants of the house to exit and discov er ed Mr

. Honie leav i ng the home thr ough the gar age

. A n officer commanded Mr

. Honie to put his hands up and or der ed him to the gr ound. Mr

. Honie complied. Upon seeing blood on Mr

. Honie’s ar m s fr om his finger tips to his elbows, the officer asked Mr

. Honie wher e he got the b lood. Mr

. Honie responded, “I stabbed her

. I killed her with a knife.” ¶8 Af t e r ar resting Mr

. Honie, the officer s inspected the

v ictim’s home. Inside, th e y discov er ed the v ictim’s par tially nude bod y l y i n g f a c e down on the liv i ng r oom floor

. A lar ge bloodstained kitchen knife lay nearher head. ¶9 T h e v ictim’s thr ee gr andchildr en wer e also found insi d e the home. Two of the childr en had some blood on them, a n d one child, D .R., “w a s c o v e r ed, liter ally, head to toe w ith blood.” In addition, D .R. was found only wear ing a t-shir t; s he w as not wear ing the under wear she had on when her mother left for wor k

. D .R.’s under wear was nev er r ecov er ed fr om the scene of the mur der

. D.R.
was giv en new under wear the night of the mur der , but the social
wor ker taking car e of D.R. later noticed blood on them. The blood

was later deter mined to be D.R.’s. U p o n e xamining D.R., a p hysician at Pr imar y Childr en’s Medical Center deter mined that the bleeding was caused by abr a sions in her genital ar ea t h a t w er e consisten t w i t h r ubbing or fondling. The physician also estimated that D.R.’s i njury was inflicted less than twenty-four h our s befor e her examination. ¶10 The postmor t e m examination of the v ictim r ev ealed that Mr

. Honie br utally slit the v ictim’s thr oat, cutting h er neck fr om ear to ear

. Four “star t mar ks” on the v i ctim’s neck r an toge ther into a deep cut that r an fr om the fr ont of her neck thr ough to her backbone. In addition to the neck wounds, Mr

. Honie mutilat e d the v ictim’s lower body, stabbing hermultiple times in hergenitalia. ¶11 After his ar rest, Mr

. Honie was taken to the Ir on C ounty Jail wher e Officer Lynn Dav is inter v iewed and photogr aphed him. Officer D a v is i nter r o g a t e d Mr

. Honie thr ee separ ate times on the
mor ning followi n g the mur der

. Ov er the cour se of his inter v iews with Officer D av i s, Mr

. Honie admitted he h a d ar gued with the

v ictim pr i or to br eaking into her home by smashing the s liding glass doo r w i th a r ock. Mr

. Honie also told Officer Dav is that he attempted to penetr ate the victim’s anus w ith his penis, b ut decided not to after r ealizing the v ictim had died. In each of the inter v i ews,

3H ONI E v. S TATE Opinion of the Cour t
howev er , Mr

. Honie expr essed r emor se f o r k illing the v i ctim, stating
r epeatedly that Claudia was not meant to die.

II. MR. HONIE’S TRIAL, CONVICTION, AND DEATH S ENTENCE ¶12 The S tate char ged Mr

. Honie with a g gr av ated mur der in

v iolation of Utah Code section 76-5-202. At tr ial, the S tate pr esented

ev idence of numer ous aggr av ating f actor s, 2 i ncluding the ev idence of D.R.’s condition the night o f t h e mur der

. T h e S tate ar gued that Mr

. Honie h a d molested D.R. on the night of the mur der a nd u r ged the jur y to find aggr av ated sexual abuse of a child as an aggr av ating factor

. ¶13 Mr

. H onie’s counsel openly admitte d h i s client’s guilt, stating, “I know in this case ther e is n o question of Mr

. Honie’s guilt. You ar e going to find him guilty. The question in this case is going to be one of punishment.” Thus, r a ther than contesting Mr

. H onie’s guilt, tr ial counsel chose to focus on the s entencing phase of the tr ial by highlighting Mr

. Honie’s expr essions of r emor se a nd attempting to counter the aggr av ating factor s pr offer ed by the S tate. ¶14 The jur y conv icted Mr

. Honie of aggr av ated mur der , finding fiv e aggr av ating factor s: (1) object r a p e, ( 2) f or cible sodomy, (3) aggr av ated sexu a l a ssault, (4) bur glar y, and (5) aggr av ated bur glar y. The jur y, howev er , could not reach unanimity on a sixth aggr av ating factor : aggr av ated child sexual abuse. ¶15 Mr

. Honie w aiv ed his r ight to a jur y at the sentencing phase. Following an extensiv e colloquy with the j udge pr i or to tr ial, Mr

. H onie signed a jur y waiv er indicating that h e had discussed the wai v e r and i ts ramifications with tr i al counsel. In the colloquy, Mr

. Honie s tated he under stood that h e was w aiv ing his r ight to be sentenced by a twelv e-per son jur y and that h is sentence would instead be deter mined by a single judge. Mr

. H onie also stated that he waiv ed the jur y v oluntar ily. ¶16 D ur i ng the sentencing phase, tr ial counsel chose to highlight Mr

. Honie’s family and per sonal backgr ound, a s well a s Mr

. H onie’s statements of r emor se to the p olice following his a r r est.

2 The S tate ar gu e d th a t M r

. Honie committed aggr av ated mur der because he killed Claudia while also committing r a pe, object r ape, for c ible sodomy, sexual abuse of a child, aggr a v ated sexual abuse of

a child, aggr av ated sexual assault, aggr av ated bur glar y, and/or bur glar y. Honie I

, 2002 UT 4, ¶ 46, 57 P.3d 977.

4Cite as: 2014 UT 19 Opinion of the Cour t

Dr

. Nancy Cohn, a for ensic psychologist, testified on M r

. H o nie’s behalf. In addition to pr offer ing testimony concer ning Mr

. H onie’s per sonal h istor y , i n cluding his mental a nd p hysical condition, Dr

. Cohn testified as to Mr

. H onie’s r emor s e. S pecifically, D r

. Cohn indicated that Mr

. Honie began cr ying w hen he a dmitted to h er that he molested D.R. the night of the mur der

. ¶17 The tr ial judge found that the aggr av a t in g cir cumstances outweighed the mitigating cir cumstances and sentenced Mr

. Honie to death in a ccor dance with section 76-3-207 of the Utah Code. The judge specifically found four agg r a v a t i n g factor s: (1) that the
mur der inv olv ed object r ape, (2) that the mur der was committed in the cour se of an aggr a v ated sexual assault, ( 3 ) that Mr

. H o ni e was engaged in committing aggr av ated bur glar y a t the time o f t he
mur der , and (4) that dur ing the mur d er Mr

. Honie also engaged in aggr av ated sexual abu s e of D.R. The cour t also noted Mr

. H onie’s
cr iminal histor y, including a pr ior dr unken assault on Car ol, and the impact Mr

. Honi e ’s cr ime had on the v ictim’s family. In addition, the cour t consider ed the mitigation ev i dence offer ed by Mr

. Honie, including ev idence of his intoxication at the time of the mur der , his per sonal backgr ound, his r elativ e youth a t the time of the cr ime, and Mr

. Honie’s expr essed r emor se for h is conduct. Ultimately, the tr ial j u d ge deter mined, beyond a r easonable do ub t, tha t the d e a th p e n a l ty was appr opr iate a nd so sentenced Mr

. Honie. We a ffi r m e d M r

. Honie’s sentence o n dir ect appeal, Honie I , 2 002 UT 4, 57 P.3d 977, and the U.S

. S upr eme Cour t denied c er tior ar i, Honie v. Utah, 537 U.S

. 863 (2002). III. MR. HONIE’S POS TCONVICTION PROCEEDINGS ¶18 Mr

. Honie began his p ostconv iction appeals pr ocess in Febr uar y 2003, r aising a var iety of ineffectiv e assistance of counsel claims. 3 In response to Mr

. Honie’s December 2003 Am e nd e d Petition f or P ost Conv iction Relief, the S tate filed a motion to dismiss

o r for s ummary judgment. Most of Mr

. Honie’s claims we r e dismissed when the p ostconv iction cour t gr anted, i n par t, the S tate’s motion for par tial summary judgment. The p o s tconv iction cour t also denied par t of the S tate’s motion based on an affidav it s ubmitted by a d efense mitigation consultant, which asser ted that tr ial

3 In his fir st petition for postconv iction r elief, Mr

. Honie b rought nine claims. In his amended peti t io n for postconv iction r elief, Mr

. Honie br ought sixty-sev en claims. We will addr ess only those claims r aised on appeal. See infra ¶ 24.

5H ONI E v. S TATE Opinion of the Cour t
counsel’s mitigation inv estigation had been inadequate. B ecause the St a t e p r o f

fe r e d n o e v idence to contr adict the consultant’s assessment of tr ial counse l ’ s inv estigation, the postconv iction cour t held that Mr

. H onie had established a factual d is p u t e s ufficient to sur v iv e summary judgment as to the a dequacy of tr ial counsel’s mitigation inv estigation. ¶19 Following the postconv i c tion cour t’s r uling, the S tate
mov ed for discov er y on Mr

. Honie’s sur v i v ing claims. Mr

. H onie’s postconv i ction counsel subsequently filed a motion r equesting additional funds to complete discov er y. In N ov ember 2006, the pos t conv iction c our t denied Mr

. Honie’s r equest for additional fun ds, h olding in par t that Mr

. Honie had alr eady r eceiv ed the maximum amount of funding allowed for postconv iction inv estigation under the PCRA. In addition, the cour t h eld that it did n ot hav e jur i sdiction to consider Mr

. Ho n i e ’ s motion f or additional funding because he had not exhausted his administr ativ e remedies with the Utah S tate Div i sion of Finance. ¶20 In June 2007, the S tate filed a second motion for summary judgment, suppor ted by an affidav it fr om Mr

. Honie’s tr i al counsel in w hich he testified as to the mitigation inv e s t i g a t i on he had conducted pr ior to Mr

. Honie’s tr ial. Mr

. H onie subsequently filed

a motion to stay the pr oceedings, ar guing that he could n ot oppose the S tate’s motion without additional funding. Extensiv e litigation ensued, i n which Mr

. Honie ar gued that h e needed additional funds to hir e exper ts to testify as to his state of intoxication at the time of the mur der , a s well as to conduct a mor e complete inv estigation into potential mitigating factor s in his backgr ound. ¶21 In the midst of Mr

. Honie’s funding dispute, the Legislatur e amended the PCRA, gr anting cour ts au t hor ity to exceed the statutor y $ 20,000 limit on litigation cos t s in death penalty postconv i ction cases upon a showing of “ good cause.” Utah Code § 78B-9-202(3)(c). 4 The postconv iction cour t deter mined that the

r ev ised P C R A applied r etr oactiv ely to Mr

. Honie’s case, ther eby allowing Mr . Honie to petition for additional funding. ¶22 I n Mar ch 2010, the postconv iction cour t again d enie d M r

. Honie’s r equest for mor e funds. T h e cour t r easoned t h a t Mr

. Honie could not demonstr ate good cause because he w as unable

4 Pr i or to 20 0 8 , f un ding for litigation costs in death penalty postconv i cti o n c a s es had an absolute cap of $20,000. Utah Code § 78-35a-202(2)(c) ( 2004); UTAH A D MI N

. C OD E r . 25-14-5 (2004).

6Cite as: 2014 UT 19 Opinion of the Cour t

to s how that additional funds wer e likely to lead to the dev elopment of ev idence that would suppor t postconv iction r elief. Following i ts denial of Mr

. Honie’s request for additional funds, the postconv i ction cour t consider ed the S tate’s second m o t i o n f or summary judgment. The cour t deter mined that, with the addition of tr ial counsel’s affida v i t t e stimony, the S tate w as entitled to judgment as a matterof law and gr a nted the S tate’s motion. ¶23 Two months a fter h e filed a notice of a p p e a l i n his postconv i ction pr oceedings, Mr

. Honie filed a r ule 6 0(b)(6) motion wit h t he postconv i ction cour t, seeking r elief fr om the c our t’s
summary judgment or der on the b asis of ineffectiv e assistance of his postconv i ction counsel. In his r u le 60(b) motion, Mr

. Honie a rgued that h is postconv iction counsel had been r ender e d ineffectiv e as a
r esult of the cour t’s failur e to gr ant a d ditional funding, which would hav e allowed counsel to fur ther pur sue Mr

. Honie’s ineffectiv e assistance of tr ial counsel claims. The postconv iction cour t denied Mr

. Honie’s motion, 5 holding that l ack of funding did not r ender Mr

. Honie’s postconv iction counsel ineffectiv e. ¶24 Mr

. Honie timely appealed the p o s t c o nv i c t i o n c o u r t’ s 60(b)

r u l i n g, and we consolidated his p ostconv iction and rule 60(b) appeals. In his consolidated appeal, Mr

. Honie raises six separ ate claims of i neffectiv e assistance of counsel: ( 1 ) tr ial counsel impr oper ly decided on a concession str ategy too ear l y, which c aused him to inadequat e l y inv estigate potential defenses or mitigating factor s ; (2) tr i al c ounsel failed to inv estigate or pur sue a v oluntar y intoxication d efense to the aggr av ated mur der char ge; (3) tr ial c ounsel failed to object to the destr uction of ev idence d emonstr ating Mr

. H onie’s intoxication on the ni g h t of the mur der ; (4) tr ial counsel failed to
r equest s u p p r ession of Mr

. Honie’s i nculpator y statements to the police; (5) dur ing the penalty phase of tr ial, tr ial counsel i ntr oduced Mr

. Honie’s inculpator y statement to Dr

. Cohn in which Mr

. Honie

5 The postconv iction cour t exer cised jur isdiction in accor dance with our d ecision i n White v. State, 7 95 P.2d 648, 6 5 0 (Utah 1990). In White, we held that although filing a notice of appeal div ests a distr ict c our t of j ur isdiction to make any additional rulings in a case, the distr ict cour t “has jur isdiction t o consider a r ule 60(b) motion after an appeal has been filed and a lso has powerto deny it. But if the m otion has me r it, the tr ial cour t must so adv ise the appellate
cour t, and t h e m o v i ng par ty may then r equest a r emand. ” Id. at 649– 50.

7H ONI E v. S TATE Opinion of the Cour t
admitted to molesting D.R.; and (6) tr i a l c ounsel failed to pr oper ly adv ise Mr

. Honie about his r ight to hav e a jur y d e ter mine his sentence. In a ddition to his ineffectiv e assistance of counsel claims, Mr

. H o ni e a r gu e s th at the postconv iction cour t er r ed when it r efused to a ppr ov e additional funds that w ould hav e a llowed him to fur ther dev elop h i s claims of ineffectiv e a ssistance of c ouns e l

. F i nally, Mr

. Honie ar gues that the postconv iction cour t er r ed when it denied his motion for r elief p u r s uant to rule 60(b)(6) of the Utah Rules of Civ il Pr ocedur e. ¶25 The S tate counter s t h a t M r

. Honie’s tr ial counsel was not ineffectiv e under the U.S

. S upr eme Cour t’s Strickland jur ispr udence. And the S tate ar gues that the postconv iction cour t did not er r when it denied Mr

. Honie a d d itional funds because Mr

. Honie failed to
s h o w that additional funds wer e likely to dev elop ev idence i n suppor t of his i neffe c t iv e a ssistance of counsel claims. Finally, the S tate ar gues th a t t h e postconv iction cour t pr oper l y denied Mr

. Honie’s r ule 60(b) motion. ¶26 We hold that Mr

. Honie has failed to r aise a genuine issue of mater ial fact as to his ineffectiv e assistance of c ounsel claims and that the postconv iction cour t was cor rect in denying him additional funds. In addition, we hold that the postconv i ction cour t did n ot er r when it denied Mr

. H onie’s r ule 60(b) motion. Accor d i n g l y , we affir m the postconv i ction cour t’s gr ant of summary judgment.

STANDARD OF REVIEW ¶27 Un d e r the PCRA, “ [t]he petitioner has the bur den of pleading and pr ov ing by a pr eponder ance of the ev idence the facts
necessary to entitle the petitioner to r elief.” U TAH C OD E § 78B-9- 105(1). As stated a bov e, Mr

. Honie challenges thr e e o f the postconv i ction cour t’s r ulings: (1) the cour t’s dismissal of his claims of ineffectiv e assistance of c ounsel, ( 2 ) t h e cour t’s denial of his motion for additional funding under the PCRA, and (3) the cour t’s denial of his r u le 60(b) motion. We appl y t h e following standar ds of r ev iew to each of these claims.

A. Ineffectiv e Assistance of Counsel Claim ¶28 In this case, Mr

. Honie’s ineffectiv e assistance of counsel claims wer e dismissed on summary judgment. We the r e for e r ev iew the postconv iction cour t’s gr ant of summary judgment for cor r ectness. See Hoyer v. State, 2009 UT 3 8, ¶ 7, 2 1 2 P

. 3 d 547 (“When

r ev iewing a gr ant of summary judgment, we r ev iew th e d i str i ct

8Cite as: 2014 UT 19 Opinion of the Cour t

cour t’s conclusions of law for c or rectness and giv e them no defer

ence.”). B . PCRA Funding Claim ¶29 This appeal pr esents o u r fir st oppor tunity to r ev iew a funding deter mination under the 20 0 8 a mendment to the PCRA. As amended, th e PCRA author izes a distr ict cour t to “exceed the maximum [funding for postconv ic t i on r ev iew of a death penalty

case ] o nly upon a showing of good c ause” and pr ov ides a list of factor s to b e consider ed “[i]n deter mining w hether good cause exists.” U TAH C OD E § 78B-9-202(3)(b), ( e). This statutor i ly gr anted discr etion is compar able to other contexts in which distr ict c o ur ts hav e been giv en discr etion to depar t fr om a gener al rule based on a showing of good cause. Examples include decisions of w hether to impose sanctions for failur e to follow disclosur e r equi r ements, whether to gr ant a motion for a continuance, and whether to waiv e the notice r equir ements for an alibi witness. See Bodell Constr. Co. v. Robbins , 2009 UT 5 2, ¶ 34, 2 15 P.3d 933 (explaining that a distr i ct
cour t has discr etion to impose sanctions wher e it finds that a par ty’s failur e to disclose was har mful to the oppo s in g par ty and was not suppor ted by good cause ); Brown v. Glover , 2000 UT 89, ¶ 4 3 , 16 P.3d 540 ( explaining that “[t]r ial c our ts hav e s ubstantial discr etion in deciding whether to gr ant continuances, ” w h ich, under Utah Rule of Civ il Pr ocedur e 4 0(b), tur ns on whether good ca u se has b een
s h o w n ( inter nal quotation mar ks omitted)); State v. Ortiz , 7 12 P.2 d 218, 219 (Utah 1985) (r ev iewing f or abuse of d iscr etion a distr i ct
cour t’s decision that “good cause had not been shown fo r t he alibi witness substitution”). In light of the similar ity between t h e se decisions and the decision of whether to awar d a dditional funding under the PCRA, we will r ev iew the postconv iction cour t’s denial of Mr

. Honie’s funding r equest for an abuse of discr etion.

C. Motion for Relief Under Rule 60(b) ¶30 We r ev iew a distr ict cour t ’ s d is missal of a r u le 60(b) motion for a buse of d i scr etion b ecause these motions ar e i nher ently fact intensiv e and inv olv e pr inciples of fair n ess and equity that ar e not e a sily r ev iewable at the appellate lev el. Kell v. State, 2012 UT 25, ¶ 7, 285 P.3d 1133. But we r ev i ew for c o r r e c tness the distr i ct
cour t’s legal deter minations made as par t of a 60(b) r uling. Id. ANALYSIS I. MR. HONIE’S TRIAL COUNS EL WASNOT INEFFECTIVE ¶31 We fir st tur n to Mr

. H onie’s contention that his tr ial

9H ONI E v. S TATE Opinion of the Cour t
counsel was ineffectiv e. We ev aluate each of Mr

. H onie’s ineffectiv e assistance of counsel claims u n d e r the Su p r e me C o u r t’s two-par t test
ar ticulated in Strickland v. W ashington , 466 U.S

. 668 (1984). Mr

. H o n i e must establish for each of his claims (1) that tr ial counsel’s per f or mance w as objectiv ely deficient and (2) t hat such deficient p er for mance was pr ejudicial. Id. a t 6 8 7. Because f ailur e to establish either pr ong of the test is fatal to an ineffectiv e assistance of counsel cl a im, we ar e fr ee to addr ess Mr

. Honie’s claims under either pr ong. Id. at 697 (“[T]her e is no r eason for a cour t deciding an ineffectiv e assistance claim to appr oach the in q u i r y i n the same or der or ev en t o a ddr ess both components of the inquir y if the defendant makes an insufficient showing on one.”). ¶32 As to the fir st Strickland pr ong, Mr

. Honie must show that tr ial counsel’s “r epr esentation fell below an objecti v e s tandar d of

r e a sonableness” when measur ed against pr ev ailing pr ofessional
nor ms. Id. at 687– 88. The Strickland Cour t conspicuously r efused to establish explicit guidelines, instead n oting that the pr oper “inquir y must be whethe r c ounsel’s assistance was reasonable consider ing all the cir cumstances.” Id. at 6 88. Because of the temptation to secondgue s s tr ial counsel’s decisions with the benefit of hindsight, “[j]udicial scr utiny of c o un sel’s p er for m a nce must be highly defer ential” an d c o u rts must acknowledge a str ong pr esumption that counsel’s c onduct “falls within t h e wide r ange of r easonable pr ofessional assistance.” Id. at 689. Thus, we examine the r easonableness of tr i al counsel’s conduct in light of the par ticular facts of the case, v iewed as of the time of counsel’s conduct. Id. at 690. ¶33 Under Strickland’s second p r ong, Mr

. Honie is r equir ed to affir mativ ely demonstr ate that tr ial counsel’s actions pr e j u diced him. Id. at 693. To do so, he must show “that ther e is a r easonable pr obability that, but for counsel’s unpr ofessional e r r or s, the r esult of the pr oceeding would hav e b een differ ent. A r easonable pr obability is a p r obability sufficient to under mine confidence i n the outcome.” Id. at 694. When assessing p r ejudice, we w ill assume that the d ecisionmaker “r easonably, conscientiously, a nd i mpar tially” applied the pr oper gov er ning standar ds. See id. at 695. Thus, in the context of a postconv iction challenge to a death sentence, the pr oper inquir y i s whether the sentencer , i n this case the tr ial j u dge, ”would hav e concluded that the balance of a g g r a v a ting and mitigating cir cumstances did not war r ant de a t h ” in the absence of c ounsel’s deficient per for mance. Id.

10Cite as: 2014 UT 19 Opinion of the Cour t A. Mr. Honie’s Trial Counsel Was Not Ineffective in Investigating the Facts of Mr. Honie’s Case ¶34 Mr

. Honie claims that his tr ial counsel impr oper ly decided to pur sue a concession str ategy f ollowing an inadequate inv estigation into potential defenses and mitigating factor s, 6 including (1) the degr ee of Mr

. Honie’s intoxication at the t im e o f t he mur der and dur ing subsequent police inter r ogation ; 7 (2) ev idence r elated to Mr

. Honie’s potential mental illness, including cognitiv e d efects

r esulting fr om Fetal Alcohol Syndr ome (FAS ) ; (3) the degr ee to which Mr

. Honie might hav e been affected by long-ter m polysubstance abuse; (4) the potential that Mr

. Honie suffer ed b r ain damage r esulting fr om a fall; and (5 ) ev idence r elating to Mr

. Ho ni e ’ s b a c k gr ound, family histor y, social situation, and mental state. S pecifically, Mr

. Honie challenges the postconv iction cour t’s deter mination that tr ial counsel r easonably r elied on exper t adv ice fr o m D r

. Cohn and Mr

. Ted Cilwick dur ing h is inv estigation. M r

. Ho n ie ar gues that it was unr easonable for counsel to r ely o n

6 Th o u g h Mr

. Honie’s ar gument on this point is somewhat unclear, he seems to ar gue that t r ia l c o unsel’s d ecision to pur sue a concession str ategy e a r l y in the inv estigator y p r ocess color ed the entir ety o f t r i al counsel’s subsequent inv estigation, causing him to inadequately inv estigate a number of potential defenses and mitigating factor s. But defense counsel in a capital case often f aces the daunting task of defending a client whose guilt is clear

. In such cases, counsel “ may r easonably decide to f ocus on the tr ial’s penalty phase, at which time counsel’s mission is to p er suade the tr ier that his client’s life should be spar ed.” Florida v. Nixon , 5 43 U.S

. 175, 191 (2004). If counsel’s decision to pur sue a c o n c e s s ion str ategy compor ts with t he demands of Strickland, such a str a tegic decision will not giv e r i se to a s uccessful claim of ineffectiv e assistance of counsel. Id. at 192. I n t h i s c ase, we cannot fault tr i al counsel’s decision to pur s ue a concession str ategy i n the f ace of the ov er whelming ev idence of Mr . Honie’s guilt. Also, to the extent Mr

. Honie challenges the timing of t r ial counsel’s decision to pur sue a concession str ategy, he has not dir ected us to a ny a u t hor ity—nor hav e w e discov er ed any such author ity—that would suppor t the pr oposition that timing a l one
w o u l d in v a l i d a t e tr ial c ounsel’s other wise l e gi t i m a t e s tr a t e gi c c h o i c e

.

7 Mr

. Honie’s claims r elating to his potential v oluntar y intoxication defense will be addr essed below. See infra S ection I.B.

11H ONI E v. S TATE Opinion of the Cour t

Dr . Cohn “as the sole mental health and mitigation exper t because she was not qualified to do all that w as r equir ed in Honie’s case.” Additionally, Mr

. Honie ar gues that tr i al co u n s e l ’s r eliance on Mr

. Cilwick w as unr easonable because Mr

. Cilwick is not a tr a ined mitigation exper t, but is instead only a pr iv ate inv estigator

. ¶35 We conclude that Mr

. Honie’s tr i al c ounsel wa s not ineffectiv e in hi s m it i gation inv estigation. We ther efor e affir m the postconv i ction cour t’s gr a nt of summary judgment on this issue. ¶36 An attor ney has a d u ty to conduct a reasonable inv estigation i n t o the facts of his c lient’s c ase and to make r easonable decisions regar ding the p r o p e r s c o p e o f th a t inv estigation. See Taylor
v. State, 2 007 UT 12, ¶ 47, 156 P.3d 739 ( citing Strickland, 466 U.S

. a t 691). Counsel’s inv estigation is especially impor tant in dea th penalty c a ses. Id. Though tr ial counsel is not r equir ed to pr esent all

ev idence uncov e r e d d ur ing the i nv estigation of a client’s case, an attor ney i s r equir ed to per for m any inv estigation competently and thor oughly. Archuleta v. Galetka, 2011 UT 73, ¶ 125, 267 P.3d 232. ¶37 I n e v a l u a t in g the r e a s o n ab l e ne s s o f c o unsel’s inv esti g a t i o n , “we consider not only the quantum of ev id e n ce alr eady known to counsel, but also whether the known ev idence w oul d le a d a
r easonable attor ney to inv estigate fur ther .” Taylor , 2007 UT 12, ¶ 48 (inter nal q u o tation mar ks omitted). Our focus i s not on c ounsel’s decision r egar ding whether to pr esent cer tain ev idence, but r ather
on “whether the inv estigation suppor ting counsel’s decision

. . . was i ts e lf reasonable .” Id. ¶ 47 (inter nal quotation mar ks omitt e d ). A cc o r d i ngly, though we gr ant counsel wide discr etion in tr ial str ategy, “str ategic choices made after a less than c omplete inv estigatio n a r e reasonable pr ecisely to the extent that r easonable pr ofessional j udgments suppor t the li mitations on inv estigation.” Id. (inter nal quotation mar ks omitted). ¶38 In Archuleta , the defendant raised ineffectiv e assistance of counsel claims v er y similar to those r aised by Mr

. Honie. Fir st, M r

. A r c hu l e t a c hallenged his defense counsel’s mitigation inv e s t i g a tion on the basis that counsel r elied solely on the adv ice of a single exper t t o ev a luate Mr

. Ar chuleta’s mental health and p er sonal histor y. Arch u l eta , 2011 UT 73, ¶ 1 26. Mr

. Ar chuleta ar gued that t r i a l c o u n s e l s h o u l d h a v e r e t a i n e d t h e s e r v i c e s o f a neur opsycholog i s t to deter mine whether Mr

. Ar chuleta suffer ed fr om br ain damage or other mental health pr oblems. Id. In r ejecting Mr

. Ar chuleta’s claim, we noted that tr ial counsel reasonably r elied
on the adv ice of a highly qua l ified for ensic psychologist, who

12Cite as: 2014 UT 19 Opinion of the Cour t

r ecommended aga i nst fur ther psychological testing. Id. ¶ 127. S pecifically, we held that it i s reasonable for counsel t o r ely on the judgment and r ecommendations of qualified exper ts with exper tise beyond counsel’s knowledge. If a n a ttor ney had the bur den of r ev iewing the tr u stwor thiness of a qualified exper t’s conclusion befor e the attor ney was entitled to make decision s b ased on that c onclusion, the r ole of the exper t would be super fluous. Id. ¶ 129 (inter nal quotation mar ks omitted). ¶39 Just as it was r easonable forMr . Ar c huleta’s tr ial counsel to r ely on a qualified exper t, so was i t r e a s onable for Mr

. Honie’s tr ial counsel to r ely on Dr . Cohn and herfindings. Dr . Cohn holds both a master s degr ee and a Ph.D. in psychology fr om the Univ er s i t y of Utah. S he also completed a postdoctor al fellowship at th e Univ er s ity of S outher n Califor nia in for ensic psyc hology. In her inv estigation, Dr

. Cohn examined Mr

. Honie’s medical and psychother a py r epor ts, his histor y of past cr i minal b e h a vior , and “a v er y detailed file” on the mur der itse l f , including all police r epor ts. Dr

. Cohn inter v i ewed Mr

. Honie, his for mer ther apist, h is par ents, and other family m ember s. She tr av eled to the Hopi Reser vation, wher e Mr

. H o n i e was r aised and examined tr ibal cour t r ecor ds detailin g Mr

. H onie’s cr iminal histor y, his mental health r ecor ds fr om the Hopi Gui da n c e Clinic dating fr om 1990 thr ough 1995, Mr

. H onie’s complete medical recor ds fr om 1975 thr ough 1996, and what school r ecor d s wer e av ailable. ¶40 Dr

. Coh n a lso conducted a “v er y detailed p sychological

ev aluation” of Mr

. Honie ov er the cour s e of two days. S he spent a total of appr oximately four t e e n h o u r s in fa c e - to-face inter v i ews with M r

. Honie and a nother six hour s conducting psychological tests. D r

. Cohn conducted an intellectual scr eening and concluded tha t M r

. Honie h ad an IQ in the av er age range. S he also conducte d a neur opsychological scr eening l ooking f or signs of br ain damage stemming fr om Mr

. H onie’s extensiv e histor y of dr ug abuse. T hese tests offer ed no indication t h a t Mr

. Honie suffer ed fr om b r ain damage or any other cognitiv e defects. ¶41 Giv en this extens i v e examination of Mr

. H onie a nd his per sonal h istor y, we c a nn o t s ay th a t D r

. C o hn’ s mitigation inv estigation was deficient or that tr ial counsel w as objectiv ely unr easonable in r elying on her conclusions. Mr

. H onie has failed to r a ise a factual dispute as to the r easonableness of tr ial counsel’s r eliance. It is not

13H ONI E v. S TATE Opinion of the Cour t enough to speculate that another exper t mi ght h av e explor ed other
ar eas of mitigation

. A b sent facts to suppor t a finding that tr ial counsel’s r eliance on his chosen exper t w as objectiv ely u nr easonable, Mr . Honie cannot sur v iv e summary judgment on this issue. ¶42 Mr

. Honie also claims that t r i a l counsel w as deficient in failing to retain a mitigation specialist to conduct the inv estigation. We disagr ee. Fir st, tr ial counsel h ir ed Dr

. Cohn, who is a mitigation specialist. S econd, tr ial counsel is not r equir ed to hir e a mitigation specialist i n or der to comply with his S ixth Amendment obligations. ¶43 We addr essed this issue in A rch u l e t a a s well. Mr

. Ar chuleta’s tr ial counsel h ir ed an inv estigator who h ad nev er befor e pr epar ed a mitigation case. Archuleta , 2 0 11 UT 73, ¶¶ 123– 24. We nev er theless r ejected Mr

. Ar chuleta’s claim t ha t c ounsel’s

r eliance on his inv esti g a t o r ’ s findings was unr easonable. Id. W e specifically r ejected the a r g u ment that d efense counsel is requir ed to hir e a mitiga t i o n specialist to fulfill S ixth Amendment r equir ements. Id. ¶ 125 (“[S ]uch specialists a r e not the only r easonable
manner in wh i ch a mitigation wor kup may be accomplished.”). Rather , we made clearin Archuleta that a defendant must establish that the inv estigator “r ender ed unr easonab ly deficient per for mance or

. . . failed to pur s ue leads tha t a r easonably tr ained mitigation specialist would hav e pur sued.” Id. ¶44 Mr

. Honie h as f ailed to establish that D r

. Cohn and Mr

. Cilwick r ender ed unr easonably deficient per f or mance or failed to pur sue v alid mitigation leads. Mr

. Ho n i e a r gued befor e the postconv i ction cour t that tr ial counsel should hav e inv estigated the effects on Mr

. Honie’s behav ior of his long-ter m dr ug and alcohol abuse, his dysfunctional upbr inging and family life, his pov er ty and cultur a l backgr ound, a nd his v ar ious psychological d i sor der s. But Dr

. Cohn’s t r i al testimony establishes that she inv estigated these
ar eas of Mr

. H onie’s life. Mor eov er , beyond his gener al claim that Dr

. Cohn a n d Mr

. Cilwick wer e too inexper i e n c ed to effectiv ely conduct a mitigation inv estigation, Mr . Honie points to no specific facts that w ould suppor t a finding that they per f or med deficiently
or failed to follow up on v alid leads. A b s e n t s uc h a s howing, Mr

. Honie cannot sur viv e summary judgment on this issue. ¶45 Finally, Mr

. Honie ar gues, in a cur sor y f ashion, that i t was inappr opr iate for tr ial counsel to rely on Mr

. Honie a nd his family to supply potential mitigation leads. T o the c ontr ar y, the S upr eme Cour t has long recognized that counsel’s inv estigator y decisions ar e usually based on infor mation supplied by the defendant. Strickland,

14Cite as: 2014 UT 19 Opinion of the Cour t
466 U.S

. at 691. Indeed, it would be difficult to conceiv e of a mor e appr opr iate sou r ce of infor mation as to the defendant’s p er sonal backgr ound and mental s t a te. Absent some showing that tr ial

cou n sel completely abdicated his i nv estigator y r esponsibilities in fav or of r elying on the unguided contr ibutions of Mr

. H onie and his family, we find it per fectly r easonable f or tr ial counsel to hav e r elied
on the defendant and his family to a s s i s t i n his own mitigation inv estigation. ¶46 In sum, Mr

. Honie has f ailed to r aise a factual dispute as to whether tr i al counsel’s mitigation inv estigation was objectiv ely deficient. Tr i a l counsel was entitled to rely on the adv ice of qualified exper ts and did s o

. We r eaffir m that tr i al counsel i s not
r equir ed to retain a mitigation specialist to satisfy his S ixth Amendment obligations. Mor eov er , tr ial counsel m ay reasonably r ely on the defendant and his family to h elp guide the mitigation inv estigation. Because we conclude that tr ial counsel did not r ender d eficient per for mance in his mitigation inv estigation, we need n ot r each the second Strickland p r ong of pr ejudice and affir m the postconv iction
cour t’s gr a nt of summary judgment on this issue. B. Trial Counsel Was Not Objectively Unreasonable in Choosing Not to

Pursue a Voluntary Intoxication Defense at Trial ¶47 Mr

. Honie next ar gues that tr ial counsel was ineffectiv e for failing to p ur sue a v oluntar y intoxication defense at tr i al. S pecifically, Mr

. Honie a r gues that ther e was “str ong ev idence of i ntoxicati o n av a ilable to tr ial counsel,” a n d that “tr ial counsel had an obligati o n t o in

v e s t igate v oluntar y intoxication as a possible defense at tr ial befo r e deciding on a concession theor y.” We h old that Mr

. H onie has n ot established that tr ial counsel’s per for mance was objectiv ely unr easonable a nd affir m the postconv ic t i o n c o u r t’ s gr a nt of summary judgment on this issue. ¶48 Mr

. Honie has failed t o s h ow “ that counsel’s r epr esentation fell below an objectiv e standar d of r easonableness.” Strickland, 466 U.S

. at 687– 88. In ev aluating the r easonablenes s of tr ial counsel’s r epr esenta tion, “a cour t must indulge a str ong pr esumption that counsel ’ s co n duct falls within the wide r ange of r easonable pr ofessional assistance.” I d. at 689. “ [S ]tr ategic c hoices made after thor ough inv estigation of law and f acts r elev ant to plausible options
ar e v ir tually unchallengeable.” Id. at 690. Relev ant to Mr . Honie’s claims, “ the law does not r equir e c ounsel to rai s e ev er y av ailable nonfr iv olous defense.” Knowles v

. Mirzayance, 556 U.S . 111, 124– 27 (2009) (holding that in t h e insanity defense context, counsel i s not

15H ONI E v. S TATE Opinion of the Cour t obligated to r a ise claims that he “r easonably believ ed [wer e] d o o m e d to fail”); see also Wiggins v. Smith , 539 U.S

. 5 10, 533 (200 3 ) (explaining that “ Strickland does not requir e c ounsel to inv estigate
ev er y c onceiv able line of mitigating ev idence no matter how unlikely the effor t would be to assist the defendant

. . . . [or ev en to] pr esent mitigating ev idence at sentencing in ev er y case”). ¶49 In or der to pr ev ail on a v oluntar y in t o x i c ation defense, Mr

. H onie’s state of i n t o x i c ation must hav e depr iv ed him of the capacity to f or m the mental state necessary for aggr a v ated mur der

. See U TAH C OD E § 76-2-306 ( “Volunt a r y i n t oxication shall not be a defense to a c riminal char ge unless s uch into x i c a tion negates the existence of the mental state which is an element of the offense

. . . . ” )

. T h u s , tr ial counsel would h av e needed to pr esent
ev idence showing that Mr

. Honie was s o intoxicated that he neither intended to kill nor knew he was killing a per son at the time of the
mur der

. See U TAH C OD E § 76-5-202 (stating that a ggr av ated mur der is co m mitted “if the actor intentionally or knowingly causes the death of another ”). ¶50 It is not enough to m er ely pr esent ev idence showing that the defendant had been dr inking. Rather , to establish a v iable

v oluntar y intoxication defense , the defendant must point to
ev idence s howing that he was so intoxicated that he w as incapable of for ming the r equisite m ental state for the cr imes committed. See Adams v. S t a t e , 2 0 0 5 UT 62, ¶ 22, 1 23 P.3d 400 (stating that “ mer e pr oof of dr inking or be i n g d r unk i s n ot enough in many cases” to mount a v oluntar y intoxication defense); see also State v. W ood, 648 P.2d 71, 90 (Utah 1982) (noting that the d efendant mu s t “ p r o v e much mor e tha n [the fact that] he had been dr inking” befor e committing the offense to b e entitled to a voluntar y i n t o x i cation defense, and that the defendant must “show that his mind had b een affected to such an extent that he did not hav e the capacity to for m the r equisite specific intent orpur pose”). ¶51 In ar guing that counsel was ineffectiv e in failing to pur sue
a v olun t a r y intoxication defense, Mr

. Honie pr i mar ily r elies on a t o xicology r epor t s howing that his blood alcohol content was 0.07 and that he had both activ e and metabolized THC in his blood four and one-half hour s after the mur der

. Mr

. Honie ar gues that, giv en the length of time between the mur der and the blood test, his blood alcohol lev el would hav e been “significantly higher ” at the time of the mur d er

. As a r esult, M r

. H o nie ar gues that tr ial c ounsel had a duty to hir e an exper t to conduct a r etr ogr ade extr apolation to show

16Cite as: 2014 UT 19 Opinion of the Cour t
that h i s actual blood alcohol lev el was appr oximately 0

. 1 5 a t the time of the mur der

. ¶52 Mr

. Honie also ar gues that tr ial counsel knew that he was highly intoxicated at the time of the mur der

. S pecifically, Mr

. Honie contends that he told tr ial counsel that on the day of the mur der h e consumed an eighteen pack of beer with a fr iend fr om 8:00 a.m. to 11:00 a.m. and that bet w een 12:00 p.m. and 1 :00 p .m. he and his fr i e n d p u r c hased another eighteen pack and cont inu e d t o d r ink b e e r

. Mr

. Honie also r epr esented that, dur i ng this time, he smo k e d four to fiv e bowls of mar ijuana and th a t l a t er in the day he consumed liquor , smoked m or e mar ijuana, and also took methamphetamine befor e consuming mor e beer

. ¶53 M r

. H onie also r elies on his actions a nd statements t he

n i ght of the mur der to d emonstr a te that h e had a high l e v e l o f intoxication. For example, dur ing h i s fir st inter rogation, appr oximately one and one-half hour s after the mur d er , Mr

. H o n i e made

n umer ous n onsensical statements to Officer Dav is, telling h i m t he Mexican Mafia was r esponsible for killing the victim. Accor ding to Officer Dav is, Mr

. Honie “was all ov er the place,” and talked about b eing a member of the occult and playing with Ouija b o a r d s. I n subsequent inter r ogations, howev er , Mr

. Honie admitted to Officer Dav i s that these statements wer e not tr ue. ¶54 F ina l ly, M r

. Honie ar gues that te s t i m o n y a t the p r e l i min a ry hear i ng should hav e aler ted tr ial counsel that Mr

. Ho ni e’s lev el of i n t o xication on the night of the mur der was significant. Fo r example, Mr

. Honie states that the taxi dr iv er who took Mr

. Honie to the v ictim’s neighbor hood testified that Mr

. H o n i e was intoxicated

. S i milar ly, Mr

. Honie points to the testimony of Car ol Pikyav it, the v ictim’s daughter , who stat e d that Mr

. Honie was intoxicated when she spoke with him by phone on the night of the
mur der

. Car ol stated that Mr

. Honie was not at the point of extr eme intoxication, but that she believ ed “he was getting ther e.” ¶55 Although this ev idence may ser v e to establi s h t hat Mr

. Honie had been dr inking at the time he committed the mur der , Mr

. Honie has not p r ov i ded any ev idence showing that his “intoxication at the time of the offense pr ev ented him fr om under

standing tha t his actions wer e causing the death of another .” Ev idenc e o f intoxication, be it witness testimony or a numer ical
measur e of the d efendant’s actual blood a lcoho l c ontent, is not
s u fficient to establish a v oluntar y intoxication defense withou t actual ev idence of the defendant’s m ental state. T hus, ev en though

17H ONI E v. S TATE Opinion of the Cour t
Mr

. Honie had consu med both alcohol and mar ijuana p r ior to committing the mur der , “ther e is no ev idence [showing that] he was
so intoxicated at the time of the cr ime that he was unable to f or m the specific intent necessary to pr ov e the c r i me o f [ a g gr av a t e d mu r d er ].” Wood , 648 P.2d at 90. ¶56 I n d eed, the ev idence suggests the contr ar y. When the police ar r iv ed at the s cene o f t h e cr ime, one of Mr

. H onie’s fir st statements to police was “I stabb e d h e r

. I killed her with a knife.” As the postconv i ction cour t noted, this statement “clear ly show[ed] that [ Mr

. Honie] under stood he had engaged in lethal conduct u pon a human being.” ¶57 S i milar ly, although Mr

. Honie claimed at fir st that he had blacked out dur i ng the mur der , he later admitted to Dr

. Cohn that he r emember ed the details of the cr ime and that he wished he had blacked out so that he w ould not remember what he had done. Again, this ev idence shows that Mr

. Honie was n ot s o intoxi c a t ed that he did not know he was killing the v ictim. ¶58 In addition, the S tate points to ev i dence showing Mr

. Honie knew what he was doing immediately bef o r e a n d after the mur der

. For example, although M r

. Sweeney, the cab dr i v er , could tell that Mr

. H onie was intoxicated, he also testified to the fact that Mr

. Honie was still able to giv e him dir ections to the v ictim’s neighbor hood. S i m i lar ly, after the commission of the cr ime, Mr

. Honie conv er s e d c oher ently with p olice officer s and obeyed their commands. ¶59 Officer Dav i s testified that although Mr

. H onie smelled of alcohol dur ing his fir st inter v iew, Officer Dav is d i d not believ e that Mr

. Honie was intoxicat e d t o t h e point that he was unable to under stand what Officer Dav is w a s saying or what was going on. Officer Dav is stated, “I mean, h e was intoxicated, yes, but not—he

was n ot inebr iated. I m ean he knew what w as going on.” And the tr i a l c o u r t c r e d i t e d Officer Dav is’s testimony c oncer nin g M r

. H o ni e ’ s l e v e l of intoxication, stating, “ [W]hile [Officer Dav is] knew t he defendant had been dr inking, i t was c lear that h e was fully awar e of his situation. Mor eov er , the defendant’s physical a p p e a r a nce and actions did not i ndicate that his mental state was o u t of the or dinar y.” ¶60 Finally, the fact that Mr

. H onie intended to kill is s uppor ted by the testimony showing that Mr

. Honie thr eatened to kill the v ictim on the day of the mur der

. Car ol testified that Mr

. Honie called her the day of the mur der wanting her to come s ee him. When

18Cite as: 2014 UT 19 Opinion of the Cour t
Car ol said she could not come because she had to go to wor k, Mr

. Honie thr eatened to kill her m other

. Though Car ol testified that Mr

. H onie seemed intoxicated d u r i n g their c onv er sation, Mr

. Honie’s thr eat to kill the v ictim, made only h our s befor e he did kill her , s h ows that Mr

. Honie not only had the capacity to for m an intent to mur der the v ictim, but that he in fact acted on that i ntent. Thus, ev en though Mr

. Honie has poin t e d t o ev idence that h e was intoxicated at the time of the mur d er , ther e was sufficient ev idence of his ability to for m the r equisite mens r ea that tr ial counsel could

r easonably decide that a v oluntar y intoxi c a tion defense was untenable. ¶61 In sum, Mr

. H onie has pointed to no ev idence showing h e
was so intoxicated that he was unable to for m the r equisite intent to commit aggr a v ated m u r d e r

. On the contr ar y, ther e is significant

e v idence demonstr ating that Mr

. H onie knew what he was doing and had the i ntent necessary to commit aggr a v ated mur der

. W e accor dingly conclude that Mr

. Honie would hav e been unable to establish a v i able v oluntar y intoxication defense and tr ial counsel

was not u nr easona b le in choosing not to pur sue that defense. Because tr ial counsel’s decision n ot to pur sue a v oluntar y i ntoxication defense fell w ell within the r a nge of acceptable per fo r m a nc e , we affir m the postconv iction cour t’s gr ant o f s u mm a ry j u d gme nt o n this issue. 8 C. Mr. Honie Was Not Prejudiced by Trial Counsel’s Failure to Object to the Destruction of Evidence Relating to Mr. Honie’s

Level of Intoxication ¶62 Mr

. Honie next ar gues tr ial counsel was ineffectiv e for failing to object to the destr ucti o n o f e v i dence r elating to Mr

. Honie’s lev el of intoxication at t h e t i me of the mur der

. Because we hav e con c lu ded that Mr

. Honie could n ot establish a v iable v oluntar y intoxication defense, supra ¶ 61, he has not r aised a genuine factual dispute a s to tr ial counsel’s effectiv eness on t h is i s sue. E ven if we assume tr ial counse l ’s decision not to object constituted u nr easonably deficient per for mance, Mr

. Honie cannot establish that he was pr ejudiced by c ounsel’s actions unless he can demonstr ate that the

8 Thoug h w e ne e d not deter mine whether Mr

. Honie was pr ejudiced by tr ial counsel’s decision, w e note that, in the absence of

a viable v oluntar y intoxication de fense, Mr

. Honie would be har d pr essed to show how the outcome of his tr ial w o u l d hav e been differ ent had tr ial counsel pur sued such a defense.

19H ONI E v. S TATE Opinion of the Cour t

ev idence was potentially exculpator y. See Strickland, 466 U.S

. at 694 (“The defendant m u st show that ther e is a r easonable pr obability that, b ut f o r c o u nsel’s u npr ofessional er r or s, the r esult of the pr oceeding would h av e been differ ent.”). Because Mr

. Honie did not hav e a v iable v oluntar y intoxication defense, any er r or on tr ial counsel’s pa r t i n failing to object to the destr u ction of ev idence of Mr

. H onie’s intoxication was har mless. Again, the absolute amount of alcohol or d rugs in Mr

. Honie’s system is insufficient to establish

a v oluntar y intoxication defense when the ev idence so s tr ongly demonstr ates th a t Mr

. Honie intended to kill Claudia. Because Mr

. Honie h a s not r aised a genuin e i s s u e of mater ial fact as to the pr ejudice p r ong of the Strickland analysis, we affir m the postconv i ction cour t’s gr a nt of summary judgment on this issue. D. Trial Counsel’s Strategic Decision to Introduce Mr. Honie’s Inculpatory Statements to Police Was Not Objectively Unreasonable ¶63 Mr

. Honie n ext ar gues that tr ial counsel was ineffectiv e for intr oducing dur i ng the guilt phase of tr i al inculpator y st a t ements that Mr

. Honie made to the police. S pecifically, Mr

. Honie contends that tr ial counsel was ineffectiv e for a dm i t ting the statements despite the fact that the statemen t s w e r e potentially obtained in

v iolation of Mr

. H onie’s Miranda r ights and w er e highly pr ejudicial in natur e. Beca u s e t h e S tate had pr ev iously agr eed to stipulate to the in a dmissibility of the statements at tr ial, Mr

. H onie faults tr ial counsel’s choice to intr oduce them v oluntar ily. ¶64 Conv er sely, the S tate ar gues that tr i al counsel made a legitimate s tr ateg i c decision to admit the statements as p ar t of his concession str ategy because he believ ed the statements exh ib i t e d M r

. Ho n ie’s r emor se. We agr ee. We hold that tr ial counsel ’ s
s t r ategic choice to v oluntar ily a dmit Mr

. Honie’s inculpator y statements was not objectiv ely unr easonable. ¶65 Mr

. Honie has not demonstr ated “ that counsel’s r epr esent a t ion fell below an objectiv e standar d of r easonableness.” Str i c k

land, 466 U.S . at 688. As noted pr ev iously, “a cour t must indulge a str ong p r esumption that counsel’s conduct falls w it hin the wide

r ange of r easonable p r ofessional assistance.” Id. at 689. In addition,

“ s tr a tegic c h oices made after thor ough inv estigation of l aw a n d fa c t s
r elev ant to p lausible options ar e v ir tually un c h a l l engeable.” Id. a t 690; see also Cullen v. Pinholster,

_ __ U.S

. ___, 131 S

. Ct. 1388, 1408 (2011) (notin g t h at s tr ategic decisions of tr ial counsel “ ar e d u e a heav y me a s u r e o f d e fe r e nc e ” o n a p p e l l a te r ev iew (inter nal quotation
mar ks omitted)).

20Cite as: 2014 UT 19 Opinion of the Cour t ¶66 Tr ial counsel may make th e s t r ategic choice to use potentially inculpator y ev i dence if it f u r t her s the client’s inter est. See Ayala v

. Hatch , 530 F. App’x 697, 701 ( 10th Cir

. 2013) (appr ov ing of tr ial counsel’s str ategic choice not to mov e to suppr ess inculpator y statements made to t he police). As long a s such

ev idence fur ther s his client’s inter ests, the use of the potentially damaging ev idence is not objectiv ely unr easonable. See Gardner v. Ozmint, 511 F.3d 4 2 0, 430 (4th Cir

. 2007) (“An attor ney’s insistence upon the a dmission of ev idence that si gnifi c ant ly d a m a g e s his client,

w i t h o u t using that ev idence in any manner to fur ther his client’s inter est cann o t b e consider ed ‘sound tr ial str ategy’ and cer tainly does not compor t with ‘pr ev ailing pr ofe ssional nor ms.’” (quoting Strickland, 466 U.S . at 689)). ¶67 I n Gardner

, the Four th Cir cuit held that tr ial counsel wa s objectiv ely unr easonable i n all o w in g the admission of inflammator y statements when tr ial counsel had no s tr ategic r eason for doing so. Id. a t 4 3 0

. Tr ial counsel insisted on the admission of d amaging statements giv en by a witness to impeach that witness’s testimony, but nev er u sed the statements to impeach the witness on c r ossexamination

. Id

. Be cause of this, the Four th Cir c uit held that tr ial counsel’s agr eement to the a dmission of the inflammator y s t a t e ments at tr ial was objectiv ely unr easonable. 9 Id. ¶68 But tr ial counsel’s str ategic choice to admit a defendant’s inculpator y statements m ay be reasonabl e if doing so ser v es the defendant’s inter ests. See United States v. Fulks , 683 F.3d 512, 519 (4th Cir

. 2012). In Fulks , tr ial c ounsel adv ised that the defendant confess his guilt to author i t i e s in a pr etr i al m eeting. Id. at 517. When the defendant challenged this adv ice as unr easonable i n postconv iction pr oceedings, tr ial counsel asser ted t h a t h i s adv ice was par t of an
o v er all str ategy designed to av oid the death penalty for his cl i e n t

. Id. at 517– 18. Mor eov er , h av ing the defendant c onfess to author i ties pr ior to tr ial a llowed tr ial couns e l t o intr oduce the defendant’s

v er sion of ev ents at tr i al without s u bjecting the defendant to c r ossexamination. Id. Fur ther mor e, tr ial counsel stated that “ w e wanted the statement to be used at tr ial” because it d emonst r a t e d “ a ccept a nc e o f r esponsibility [and]

. . . some tr u e indicia of r emor se.” Id

.

9 The Four th Cir cuit nev er theless held that th e d e f endant in Gardner failed to show ineffectiv e assistance o f c o u n sel because he could not pr ov e that h e was pr ejudice d by tr ial counsel’s str ategic decision. Id. at 430– 31.

21H ONI E v. S TATE Opinion of the Cour t

at 518 (alter ations in or iginal)(inter nal quotation mar ks omitted). Because of the ov er whelming ev idence of guilt i n the case, the Four th Cir cuit r ecognized the “unpalatable hand the defense team was dealt” and held that tr ial counsel’s str ategic choice was not an objectiv ely unr easonable litigation tactic. Id. at 519. ¶69 Like the defense counsel in Fulks , Mr

. Honie’s tr ial counsel

was dealt a similar ly “unpalatable hand.” As we hav e discussed, Mr

. H onie’s tr ial counsel was pr esented with a c l i e nt who was clear ly guilt y o f c ommitting a heinous cr ime. Her e, tr ial counsel adopted a mitigation str ategy, attempting to highlight Mr

. Honie’s feelings of r emor se thr ough the admission of statements Mr

. Honie mad e t o police. In addition, unlike tr ial counsel in Gardner, Mr

. Honie’s tr ial counsel not only had a specific str ategic pur pose for admitting thes e s t a t e me nts, but counsel also used them to fur ther his client’s inter est by attempting to pr esent mitigating ev i dence for both the judge and jur y to consider

. ¶70 Ev en though the statements Mr

. Honie made to Officer Dav i s wer e inculpator y, because tr ial c ounsel had a legitimate str ategy for their admission, tr i al counsel’s decisio n wa s not objectiv ely unr easonable. 1 0 We ther efor e affir m the postconv iction
cour t’s gr a nt of summary judgment on this issue. E. Trial Counsel’s Strategic Decision to Introduce During Sentencing Mr. Honie’s Confession to Dr. Cohn Was Not Objectively Unreasonable ¶71 Mr

. Honie next ar gues that tr ial counsel was ineffectiv e for intr oducing, d u r ing sentencing, Mr

. Honie’s confession to Dr

. Cohn that he h a d molested D .R. on the night of the mur d er

. S pecifically, Mr

. Honie ar gues that tr ial counsel was ineffectiv e for i ntr oducing his confession without fir st inv es t igating claims that D.R.’s father , and not Mr . Honie, had molested her

. We hold that tr ial counsel’s per for mance was not objectiv ely unr easonable. ¶72 As discussed abov e, tr ial counsel’s decision to admit potentially damaging statements dur ing tr ial in a n a ttempt to demonstr ate a defendant’s r emor se i s a legitimate tr ial str ategy. See

1 0 Because we find that tr ial counsel d i d no t r e n der objectiv ely
unr easonable per for mance, we need not deter mine whether Mr

. Honie was pr ejudiced by the admission of h is inculpator y statements. B u t w e n o te that, in or der to establish pr ejudice, Mr

. H onie would need to show that he could hav e pr e v e nted the S tate fr om intr oducing the statements.

22Cite as: 2014 UT 19 Opinion of the Cour t

s upra ¶¶ 63– 70. S o long as tr ial counsel uses such s ta t e m e n t s t o fur ther his client’s inter ests, we will n ot question a valid str a tegic choice. This is especially tr ue when the chal l enged statements ar e double-edged, containing both inculpator y and exculpator y elements. The d e c i sion whether to admit such s tatements i s an inher ently str ategic discr etion. ¶73 Tr ial counsel’s decision to admit Mr

. Honie’s confession to D r

. Cohn falls within this categor y of legitimate tr ial str a teg y

. Dur i ng the sentencing phase, tr ial counsel pr esented ev idence of Mr

. Honie’s r emor se. S p ecifically, Dr

. C o hn testified about Mr

. Honie’s expr essions of r emor se, such as the fact that Mr

. Honie beg a n cr ying when he admitted to h er that he had molested D.R. Because tr ial counsel admitted Mr

. Honie’s confession to Dr . Cohn

as par t of a legitimate tr i a l s t r a tegy in a n attempt to h ighlight Mr

. Honie’s feelings of r emor se, we hold that tr ial counsel’s actions
wer e not objectiv ely unr easonable. ¶74 Accor dingly, we conclude that Mr

. Honie has failed to d e m o n s tr a t e u nr e a s o n able per for mance u nder Strickla n d c o nc e r nin g tr ial c ounsel’s de c i s i o n to admit Mr

. Honie’s confession to Dr

. Cohn. 1 1 W e ther efor e affir m the postconv iction cour t’s gr ant of
summary judgment on this issue. F. Trial Counsel’s Advice to Waive Jury Sentencing Did Not Constitute Ineffective Assistance of Counsel ¶75 Mr

. Honie asser ts tr ial counsel impr oper ly adv ised him to waiv e his r ight to a j u r y at sentencing and that his waiv er was not kn o wing and v oluntar y. S pecifically, Mr

. Honie a r gues that the colloquy with tr i al counsel and the c our t w as inadequate in that it failed to make c lear that Mr

. Honie had a r ight to be sentenced by an impar tial jur y, f ailed to clar ify that the jur or s would b e r equir ed to weigh the aggr av a ting and mitigating factor s, and failed to ensur e that Mr

. Honie under s tood what mitigating and aggr av ating factor s
w er e. Fur ther , Mr

. Honie claims that he changed his min d a nd wanted to withdr aw his waiv er pr ior to tr i al, but was told by

1 1 Though we n e e d no t r each the issue of whether Mr

. Honie demonstr ated that he was pr ejudiced by counsel’s s tr a t e gi c d ecision,
we note that the tr ial cour t was pr epar ed t o f in d t hat Mr

. Honie molested D.R., ev en without Mr

. H onie’s confession. As such, Mr

. Honie cannot demonstr ate that, but for tr ial counsel’s decision to intr oduce his inculpator y statements, the cour t would not hav e found that Mr . Honie molested D.R.

23H ONI E v. S TATE Opinion of the Cour t
counsel that it was too late. Fir st, we hold that tr ial counsel’s adv ice to waiv e a jur y a t sentencing was not objectiv ely unr easonable under the fir st pr ong of Strickland. S econd, ev en if t r ial c ounsel’s failur e to mov e to withdr aw Mr

. Honie’s wai v e r constituted deficient per for mance, we hold M r

. H onie was not pr ejudiced under the second pr ong of Strickland

. ¶76 We begin our analysis w i th the str ong pr esumption that t r ial counsel acted competently. See Strickland, 466 U.S

. at 6 8 9

. I f counsel h ad a r easonable basis for adv ising a client to waiv e a jur y at sentencing, we will not second-guess that str a tegic decision. See Wiggins , 5 39 U.S

. at 523 (indicating that c ounsel’s str a tegi c choices mad e f o llowing a thor ough rev iew of the r elev a nt facts and law
sur r ounding the i ssue “ar e v ir tually unchallengeable” (inter nal quotation mar ks o m i tted)). We pr ev iously hav e held that counsel may r easonably pr esume that a tr ial judge “will apply the law justly and make an i mpar tial decision i n both the guilt and penalty phases of a capital tr ial.” Taylor v. Warden , 905 P.2d 277, 284 ( U t a h 1 9 9 5 ). S imilar ly, it is r easonable forcounsel to p r esume that a judge “will disr egar d any per sonal beliefs and dischar ge h is or her duty to apply the law.” Id. “Indeed, absent specific allegations of p er sonal bias, we cannot conceiv e of any situation in which choosing a judge

ov er a jur y would not constitute a legitimate tactical decision.” Id. ¶77 In Taylor

, the defendant c laimed his counsel was d eficient in adv ising him to waiv e a j u r y a t b o th the guilt and sentencing phases of his capital tr ial. Id. Mr

. Taylor was c o nv icted of capital homicide and sentenced to death for sexually assaulting an elev enyear -old gir l and str angling h e r w i t h a t elephone c or d. I d. at 281. We r ejected Mr

. Taylor ’s ineffectiv e assistance claim in par t because

we thought it r easonable for counsel to pr efer a tr ained jur ist to a lay jur y when the c r ime was par ticular ly gr uesome. I d

. at 2 88 (“Taylor had v er y little going for him i n t he penalty phase, and the deter mination that his chances wer e better with a j udge than a jur y was per fectly plausible.”). ¶78 Mr

. Honie was cha rged with a par ticular l y gr uesome cr ime. Though ther e is no need to r eiter ate the details of that cr ime
a g a in her e, the j ur y was confr onted with those details dur in g t he S tate’s case-in-chief. It wa s n o t u nr easonable for tr ial counsel to conclude, in light of the ov er whelming ev i dence of Mr

. Honie’s guilt and the gr uesome natur e of the cr ime itsel f, that Mr

. Honie would far e b etter at sentencing w i t h a judge than with a jur y. Mor eov er , dur ing the Apr il 30, 1999 scheduling confer ence in which Mr

. Honie waiv ed his r i ght to a jur y, the tr ial judge specified that imposing the

24Cite as: 2014 UT 19 Opinion of the Cour t
death penalty was “the last thing a judge would want to d o.” The judge acknowledged t h a t , although he was not p hilosophically opposed to the death penalty, he would only impose it if the facts and cir cumstances of the case war r anted it. Par ticular ly in light of the tr ial judge’s statements on the r ecor d, we cannot fault c ounsel’s adv ice to w aiv e jur y sentencing in fav or of sentencing by the tr ial judge. ¶79 Mr

. Honie’s second claim r elating to his w a i v er of jur y sentencing is that his waiv er was n ot k n o w ing and v oluntar y. S pecifically, Mr

. Honie claims he was nev er infor med of his r i ght to
an impar tial jur y, was nev er infor med that th e jur y would be

r equir ed to weigh the aggr av ating and mitigating factor s, and was nev er p r ope r l y instr ucted as to what aggr av ating and mitigating factor s actually ar e. The S tate cor r ectly notes that Mr

. Honie’s claim that he was not notified r egar ding h is right to an impar tial j ur y and the use of aggr av ating and mitigating factor s i s no t r elev a nt to his cho i c e b e t ween a judge and a jur y in ter m s of sentencing. With either a judge or jur y at sentencing, Mr

. Honie was guar anteed the

r ight to an impar tial sentencer who would w eigh the aggr av ating and mitigating factor s. ¶80 The r elev ant consider ation in Mr

. Honie’s decision to waiv e jur y sentencing was the differ ence between a single judge and

a twelv e-per son jur y. And this differ ence w as descr ibed to Mr

. Honi e d u r i ng the Apr il 3 0, 1999 hear ing. The tr ial judge specifically asked w hether Mr

. Honie under stood that h e w a s
r educing h is chances of conv incing a p e r son to v ote against the d eath penalty fr om “ 12 [sic] down to one.” Thus, the r e l e v a n t distinction b etween sentencing by a jur y or a judge was ex p lained to Mr

. H o nie and he affir med to the cour t that he u nder stood the distinction a nd wanted to pr oceed with the judge at s entencing. W e cannot say, on this recor d, that Mr

. Honie’s waiv er was n ot knowing and v oluntar y. ¶81 Fina l l y , Mr

. Honie ar gues that tr ial counsel r ender ed ineffectiv e assist a nce when he f ailed to mov e to withdr aw Mr

. Honie’s waiv eras r equested. Accor d i ng to Mr

. Honie, a week after he submitted his jur y waiv er , he told tr ial c ounsel that he had changed his mind and wanted to withdr aw t he w a iv er

. But tr ial counsel told Mr . Honie it was too late, ev en though tr ial was still a week away. The only r ecor d ev idence of Mr

. Honie’s d esir e to
w i thdr aw the waiv er is his statement that he told tr ial counsel he had changed his mind. Because this case comes befor e us on appeal fr om a gr ant of summary judgment, w e assume that Mr

. Honie did,

25H ONI E v. S TATE Opinion of the Cour t

in fact, attempt to withdr aw his waiv er

. We n eed not decide if tr ial counsel’s failur e to mov e to withdr a w Mr

. Honie’s waiv er amounts to ineffectiv e assistance of counsel because, ev en if tr i al c ounsel’s per for mance was objectiv ely unr easonable, Mr

. H onie cannot show that he w as p r ejudiced. We hav e pr ev iou s l y r e co gnized that the decision to waiv e a jur y is inher ently str ategic because a defendant will often far e b etter with a tr ained jur ist than a lay jur y, especially

w hen the cr ime is p ar ticular ly heinous. Taylor , 905 P. 2 d a t 2 8 4 (“[A]bsent specific allegations of per sonal bias, w e cannot c onceiv e of any situation in w hich choosing a judge ov er a jur y would not constitute a legitimate tactical decision.”). Mr

. H onie has offer ed no
ev idence tending to establish that the o utcome of his sentencing
w o u l d h av e been differ ent had he opted for j ur y sentencing. Because Mr

. Hon i e has f ailed to satisfy the pr ejudice pr ong of Strickland, we affir m

the postconv iction cour t’s r uling. ¶82 In summary, we hold that Mr

. Honie failed t o r aise a genuine issue of m ater ial fact for each of his i neffectiv e assistance of

c o u n s e l c l aims, namely: (1) tr i al counsel’s decision to adopt a concession str ategy r ather than focusing on other potential defenses
or mitigating factor s, ( 2) tr ial counsel’s d ecision not to inv estigate or pur s ue a v oluntar y intoxication defense, (3) tr ial counsel’s f ailur e to object to the destr u ction of ev idence of Mr

. Honie’s intoxication the night of the mur d er , (4) tr ial co u ns e l’s failur e to suppr ess Mr

. Honie’s inculpator y statemen t s t o police, (5) tr ial c ounsel’s int r o d u c tion of Mr

. Honie’s inculpator y statements to D r

. Cohn
concer ning the molestation of one of the childr en pr esent the night of the mur der , a n d ( 6 ) tr ial counsel’s failur e to pr oper ly adv ise Mr

. Honi e o f h i s r i ght to hav e a jur y deter mine h is sentence. W e ther efor e affir m the postconv iction cour t’s gr ant of summ ar y judgment forthe S tate on each of these issues. II. THE POS TCONVICTION COURT DID NOT E RR WHEN IT DENIED MR. HONIE’SREQUES T

FOR ADDITIONAL FUNDS ¶83 Mr

. Honie next ar gues that the postconv i ction cour t er r ed when it denied him additional fun d i ng to dev elop his ineffectiv e
a s sistance of tr ial counsel claims. Pr i or to 2008, the P CRA set an
a b s o lute limit on funding for litigation costs in a capita l postconv i ction case of $20,000. U TAH C OD E § 78-35a-202(2) ( c ) ( 2 004); U TAH A D MI N

. C OD E r

. 25-14-5 ( 2 0 0 4 )

. In 2008, the Legislatur e amended the s tatute to a l low for addition a l funding b eyond the $20,000 cap “upon a showing of good cause.” Id. § 78B-9-202(3)(c). The statute pr ov ides that, when consider ing “whether g o od cause
26Cite as: 2014 UT 19 Opinion of the Cour t exists to exceed” the $20,000 limit, the cour t shall consider : (i) the extent to which the w or k done to date and the fur ther w or k identified by th e petitioner duplicates

w o r k a n d in

v e s t i g a t i on per for med dur ing the cr imin a l case underr ev i ew; and (ii) whether the p etitioner has est a blished that the
wor k d o n e to date and the fur ther wor k identified is
r easonably l ikely to dev elop ev idence or legal
ar guments that will suppor t postconv i ction r elief. Id . § 78B-9-202(3)(e). ¶84 S h or tly a f t e r the amendment went into effect, the par ties in this case s ubm i t t ed b r iefing on the issue of w hether the amendment applied r etr oactiv ely to allow Mr

. Honie to petition for ad d i t i o n a l fu n d in g

. O n N o v ember 2 8, 2008, the postconv i ction c our t issued a memor andum decision r uling that the 2008 amendment to the PCRA applied r etr oactiv ely 1 2 and that Mr

. Honie was thus “entitled to seek payment

. . . for a ll wor k completed a nd litigation expenses incur r ed pr ior t o t he [amendment’s] affectiv e date for which payment had no t y e t b e e n r e c eiv ed.” Mr

. Honie subsequently filed two m otions—one in Apr il 2 0 0 9 a n d one in May 2009—r equesting that the postco nv i ction cour t “appr ov e the payment of both past and futur e litigation e x p e nse beyond the statutor y c a p.” In his Apr il 9, 2009 motion, Mr

. Honie as ked the postconv i ction cour t to a p p r ov e payment for w or k that his postconv i ction exper t, Mr

. Whitman, h a d alr eady per for med. In his May 2009 r equest, Mr

. Honie asked for additional funding to a llow for continued inv estigation and litigation r egar ding the adequacy of tr ial counsel’s mitigation inv estigation. ¶85 The p ostconv iction cour t denied both of Mr

. Honie’s

r e q u ests for additional funding. In i ts memor andum d ecision, the

c o u r t explained that Mr

. Honie was r equir ed, but had failed, to s h o w that the wor k Mr . Whitman had alr eady done and the fu tur e wor k that h e and other exper ts planned to do wer e “r easonably l ikely to dev elop ev i dence or legal ar guments in supp o r t o f [Mr

. Honie’s]

1 2 Because neither par ty has challenged on a p p e a l the postconv i ction cour t’s r uling that the 2008 a mendment to the PCRA applied retr oactiv ely, we n eed n ot rev iew whether that deter mination was cor r ect. We mer ely assume for pur poses of this a ppeal that the 2008 amendment did apply to Mr

. Honie’s funding r equests.
27H ONI E v. S TATE Opinion of the Cour t
claim that tr ial counsel was ineffectiv e in conducting the mitigation inv estigation and p r esenting the mitigation case dur ing tr ial.” Although Mr

. Honie had shown that his postconv iction mitigation inv estigator s and exper ts would hav e followed a different mitigation str ategy than that of tr ial counsel, Mr

. Honie had failed to show how the additional funding would suppor t h is a r gument that tr ial counsel’s mitigation inv estigation and counsel’s pr esentation of Mr

. Honie’s mitigation case wer e ineffectiv e. In the postc o nv i c tion
cour t’s v iew, Mr

. Honie had not and could not “ demonstr a te good

cause to exceed the maximum sums a u t hor ized for litigation expenses underthe PCRA.” ¶86 We agr ee with the postconv i ction cour t that Mr

. Honie failed to s how good c a u s e to incr ease his postconv iction funding beyond the $ 20,000 s tatutor y limit. Wher e the only issue r aised was whether tr ial counsel had pr ov ided ineffectiv e assistance in its mitigation i nv estigation and pr esentation of Mr

. Honie’s mitigation
cas e , Mr

. H onie was r equir ed to show how the additional funding would hav e likely suppor ted that claim. But Mr

. Honie’s requests for additional funding mer ely descr ibed that the r equested funding would be used to conduct a differ ent mitigation inv estigation. And because ther e is a “wide r ange of r easonable pr ofessional assistance,” Strickland v. Washington , 466 U.S

. 6 68, 6 89 (1984), simply showing “ that s om e d i ffer ent str ategy or pr ocedur e might hav e br ought about a better r esult

. . . . i s not sufficient to sustain a claim of ineffectiv e assistance of counsel,” Opie v. Meacham , 419 F.2d 465, 467 (10th Cir

. 1969). Because Mr

. Honie failed to show good cause,
we hold that the postconv iction c our t cor r ectly denied Mr

. Honie’s

r equests foradditional funding. III. THE POS TCONVICTION COURT DID NOT ERR WHEN IT DENIED MR. HONIE’SMOTION FOR RELIEF FROM JUDGMENT PURS UANT

TO RULE 60(b)(6) ¶87 Finally, Mr

. Honie ar gues that the postconv iction cou r t abused i t s d iscr etion by denying his r ule 60(b)(6) motion. Under

r ule 60(b) of the Utah Rules of Civ il Pr ocedur e, a distr ict cour t may set a side a final j ud g m e nt f o r r easons such as mistake, n ewly discov er ed ev idence, or fr aud. Wher e none of r ule 6 0(b)’s
enumer ated er r or s ar e pr esent, a par ty m ay seek r elief fr om final judgment under a catch-all pr ov ision, whic h p r o v ides that a par ty may be r eliev ed fr o m a final judgment for “any other r eason justifying r elief fr om the oper ation of the judgment.” U TAH R. C IV

. P. 60(b)(6).

28Cite as: 2014 UT 19 Opinion of the Cour t ¶88 Her e, Mr

. H onie filed a r ule 60(b)(6) motion following the distr ict cour t’s or der denying his petition for postconv iction r elief. The basis for his r ule 60(b)(6) claim was t ha t h is postconv iction counsel h ad been r ender ed ineffectiv e by the distr ict cour t’s denial of his r equest for additional funding. Mr

. Honie also asser ted that the PCRA pr ov ision r ejecting a r ight t o effectiv e assistance of p ostconv iction counsel v iolates both the Utah and fede r a l

c o n st itutions. See U TAH C OD E § 78B-9-202(4) (explaining th a t “[n]othing in this chapter shall b e constr ued as cr eating the r ight to the effectiv e assistance of postconv iction counsel, and r elief may not be gr anted on a ny claim that p ostco nv i c tion counsel was ineffectiv e”). In essence, Mr

. Honie ar gued that his postconv iction judgment should be set aside because he h ad a constitutionally pr otected r i g h t to the effectiv e a ssistance of postconv iction counsel—despite the language of the PCRA saying other w ise—and because he was d e p r i v ed of that r ight when his postconv iction counsel w as denied the additional funding necessary to effectiv ely

r epr esent him. ¶89 On Febr uar y 9 , 2 0 1 2, the postconv iction c our t issued its
or der denying Mr

. Honie’s r ule 60(b)(6) motion. The postconv iction
cour t did not r each the constitutional issue, but i nstead held that

r e g a r d less of whether a r ight to effectiv e a ssistance of p o s tc o nv i c t i o n counsel exist s , under the Strickland standar d, Mr

. Honie’s pos t conv iction counsel was not render ed i neffectiv e by limited inv estigator y funding. ¶90 We affir m the postconv iction c our t’s r uling, but we do so on the alter nativ e gr ound that a r u l e 6 0 (b )(6) motion is n ot an appr opr iate v ehicle forbr inging a claim of ineffectiv e assistance of postconv i ction c ouns e l u n d e r the facts of this case. In Menzies v. Galetka, we r ev er sed the denial of a p ostconv i ction r ule 60(b)(6) motion wher e postconv i c t i o n counsel behav ed in such a gr ossly negligent manner that t he defendant was essentially depr iv ed of postconv i ction r ev iew at both the d i str ict cour t and on a ppeal. 2006 UT 81, 150 P.3d 480. In Menzies , pos t co nv iction counsel “willfully disr egar ded near ly ev er y aspect of Menzies’ case,” and ther efor e “defaulted Menzies’ entir e post-conv iction p r oceeding, r esulting in the d ismissal of Menzies’ case.” Id

. ¶ ¶ 1 , 24. And although Menzies’ postconv iction counsel timely filed a notice of appeal, he later failed to file a docketing statement, r esulting in the dismissal of Menzies’ appeal. Id. ¶ 39. Because pos tconv i ction c ounsel’s egr egious behav i or not only led to the d ismissal of Menzies’ case a t the distr ict cour t, but also depr iv ed him of a ppellate r ev iew, we held

29H ONI E v. S TATE Opinion of the Cour t
that the case r ose to the lev el of “unusual and exceptional cir cumstances” necessary to allow for r ule 60(b)(6) r elief. Id. ¶¶ 71– 77. ¶91 O u r s ubsequent cases hav e essentially limited Menzies to its facts

. For example, in A rchuleta v. Galetka, we held that only wher e an ineffectiv e assistance of counsel claim r i ses to the lev el of “willful and deliber ate” inac t i o n or gr oss n egligence, will a r ule 60(b)(6) motion be appr opr iate. 2011 UT 73, ¶ 166 & n.14, 267 P.3d 232. S imilar ly, in Kell v. State, we discussed the limited scope of our holdi n g i n Menzies and concluded that r ule 6 0(b)(6) r elief i s most
common when a deficiency i n either r ep r esentation or notice pr ecluded appellate r ev iew. 2012 UT 25, ¶ 1 8, 285 P.3d 1133. Unlike the defendant in M

enzies , the def e n d a nt in Kell h ad “mov ed to set aside a [ postconv iction] judgment that had been h ear d, r u led on, and appealed.” Id. ¶ 20. As a r esult, we held that M enzies was not contr olling and affir med the distr ict cour t’s denial of Kell’s 60(b)(6) motion. Id. ¶92 Like the d efendant in Kell , Mr

. Honie is seeking to s et aside

a postc o nv iction judgment that has b een hear d, r uled on, and appealed. A nd a s with the a lleged deficiencies of c ounsel’s per for mance in Kell , the claimed deficiencies of Mr

. Honie’s counsel did not r esult in a dismissal of Mr

. Honie’s postconv iction case or in
a waiv er of his r i g h t to appellate rev iew. Although the denial of additional funding may hav e l imited the s c o p e of postconv iction counsel’s inv estigation, such li m itation did not a mount to a complete default of counsel’s obligations. We thu s r e i ter ate that, shor t of a complete default in r epr esentation, a rule 60(b)(6) motion is an i nappr opr iate v ehicle for br inging a c laim of ineffectiv e assistance of postconv iction counsel. Because Mr

. Honie’s claims of ineffectiv e a ssistance of postconv iction counsel do not r ise to the lev el of a complete default, we affir m the postconv iction cour t’s denial of his r ule 60(b)(6) motion. 1 3

1 3 Mr

. Honie’s ar gum e nt concer ning postconv i ction counsel’s ineffectiv eness is unper suasiv e for an additional r eason. Mr

. Honie
r elies solely on the contention that postconv iction counsel was
r e n der ed i neffectiv e because of the denial of a dditional funds that would h av e enabled counsel to fur ther inv estigate Mr

. H onie’s ineffectiv e assistanc e o f tr i a l counsel claims. Yet, as explained abov e, supra ¶¶ 83– 86, an awar d of funds would hav e been inappr opr iate (continued...)

30Cite as: 2014 UT 19 Opinion of the Cour t

CONCLUSION ¶93 We hold that Mr

. Honie has failed to r a ise a genuine issue of mater ial fact as to his ineffectiv e assistance of counsel claims and that the postconv iction c our t was cor r ect i n d enying Mr

. Honie additional funds. In addition, we hold that the postconv iction c our t did not er r wh en it denied Mr

. Honie’s r ule 60(b)(6) motion. A c c o r d ingly, we affir m the postconv i ction cour t’s gr ant of summary judgment on all claims.

1 3 (...continued) because, as a matter of law, Mr

. Honie cannot show that tr ial counsel

was ineffectiv e

. T h e r efor e, ev en if a r ule 60(b) motion wer e an appr opr iate vehicle for the s e claims, Mr

. H onie’s contentions
concer ning postconv iction counsel’s ineffectiv eness fail.

31