FILED

United States Court of Appeals

Tenth Circuit

June 2, 2015

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DOUGLAS STEWART CARTER,

Petitioner - Appellant,

v.

ALFRED C. BIGELOW, Warden,

Utah State Prison,

Respondent - Appellee.

No. 12-4203

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 02-CV-00326-TS)

Paula Harms, Assistant Federal Public Defender (and Jon M. Sands, Federal

Public Defender; David A. Christensen, Assistant Federal Public Defender, Salt

Lake City, Utah, on the briefs), Phoenix, Arizona, for Petitioner - Appellant.

Thomas Brunker, Assistant Attorney General, (and Erin Riley, Assistant Attorney

General, Salt Lake City, Utah; Sean D. Reyes, Utah Attorney General, on the

brief), Salt Lake City, Utah, for Respondent - Appellee.

Russell P. Butler (and Victor Stone with him on the brief) of Maryland Crime

Victims’ Resource Center, Inc., Upper Marlboro, Maryland, for Victim Gary

Olesen.

Before KELLY, LUCERO, and MORITZ, Circuit Judges.

KELLY, Circuit Judge.

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In this capital case, Petitioner-Appellant Douglas Stewart Carter, a Utah

inmate, appeals from the district court’s denial of his petition for writ of habeas

corpus challenging his conviction and death sentence. Carter v. Bigelow, No.

2:02–CV–326, 2012 WL 3964819 (D. Utah Sept. 11, 2012). Mr. Carter was

convicted of the murder of Eva Olesen in Provo, Utah in 1985 and subsequently

sentenced to death. Mr. Carter appeals the district court’s denial of habeas relief

on seven of his claims: (1) ineffective assistance of guilt-phase counsel;

(2) ineffective assistance of appellate counsel; (3) ineffective assistance of

sentencing counsel at his 1992 resentencing; (4) denial of due process and right to

remain silent based on two of the prosecutor’s comments at closing argument; (5)

denial of Confrontation Clause rights at resentencing; (6) denial of Fifth

Amendment rights based on the admission of an involuntary confession; and (7)

cumulative error.

In addition, Mr. Carter appeals from the district court’s earlier denial of his

motion to amend or supplement his habeas petition with claims based on newly

discovered evidence of prosecutorial misconduct. Carter v. Bigelow, 869 F.

Supp. 2d 1322 (D. Utah 2011). In 2011, two key witnesses that corroborated Mr.

Carter’s confession at trial, Epifanio and Lucia Tovar, executed declarations

stating that the Provo Police Department provided them with rent money,

groceries, and other favorable treatment in advance of their testimony. These

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declarations are in part corroborated by declarations from members of the Provo

Police Department. Mr. Carter contends that the district court should have

allowed him to amend or supplement his habeas petition to include claims of

prosecutorial misconduct and suppression of evidence based on this evidence. He

further argues the district court should have granted him a stay pursuant to Rhines

v. Weber, 544 U.S. 269 (2005), to exhaust these claims in Utah state court.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We

conclude that the district court abused its discretion in refusing to allow Mr.

Carter to supplement his habeas petition with claims based on newly discovered

evidence of prosecutorial misconduct and suppression of evidence. Because the

district court did not address whether a stay of these claims to permit exhaustion

was appropriate, we remand to allow this determination in the first instance.

As to Mr. Carter’s remaining claims, with the exception of his claim of

cumulative error, we affirm the district court’s denial of habeas relief. We

conclude that these claims can be resolved even given the possibility of future

evidentiary development of his prosecutorial-misconduct and suppression-ofevidence claims. Further delay and subsequent re-briefing of the other claims is

not justified given the protracted time period—now over thirteen years—Mr.

Carter’s federal habeas petition has been pending. As to Mr. Carter’s claim of

cumulative error, we vacate the denial of relief and remand to the district court

based on the possibility that Mr. Carter’s supplemental claims could alter the

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cumulative error analysis.

Background

Specific facts regarding Mr. Carter’s claims are discussed alongside each

claim. The general facts surrounding Mr. Carter’s conviction and sentence are as

follows:

On the evening of February 27, 1985, Eva Olesen was found dead at her

home in Provo, Utah. Her hands were tied behind her back with a telephone cord,

and she was nude from the waist down. A kitchen knife was found on the floor

next to her body. She had been stabbed eight times in the back, once in the

abdomen, and once in the neck, and she had suffered a fatal gunshot wound to the

back of the head. The markings on the slug removed from her body were

consistent with those produced by a .38 caliber handgun.

Mr. Carter became the primary suspect in Mrs. Olesen’s murder in April

1985 when his wife, Anne Carter, provided the police with information about her

husband’s possible involvement. Mrs. Carter told the police that, on the night of

the murder, Mr. Carter went to visit his friend Epifanio Tovar and met two of Mr.

Tovar’s friends. One of these friends held a grudge against Provo Police Chief

Swen Nielsen, a relative of Mrs. Olesen. The three men decided to go to Mrs.

Olesen’s residence to steal her gold necklace. According to Mrs. Carter, Mr.

Carter waited in the car while the other men knocked and entered the home, and

Mr. Carter did not know that Mrs. Olesen was dead until the men returned to the

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car and told him. Mrs. Carter agreed to a search of her home, and the police

recovered .38 caliber ammunition. Although Mrs. Carter suspected that her

missing .38 caliber handgun was the murder weapon, no weapon was recovered.

Based on the information provided by Mrs. Carter, the police turned their

attention to Epifanio Tovar. Mr. Tovar told the police that Mr. Carter had left

Mr. Tovar’s home on the night of the murder with the intention of stealing money

and returned two hours later very nervous and wearing different clothes. Mr.

Carter told him he had knocked on the Olesens’ door, entered the home, stabbed

Mrs. Olesen roughly ten times, and, because she did not die, shot her in the back

of the head. Finally, Mr. Tovar told the police that Mr. Carter brought a .38

caliber firearm to Mr. Tovar’s house some time after the murder and that Mr.

Tovar disposed of the gun at Mr. Carter’s request.

On June 11, 1985, police arrested Mr. Carter in Nashville, Tennessee. At

the time of his arrest, Mr. Carter was living with JoAnne Robins, who was also

taken into custody. Mr. Carter was first interrogated by Sergeant Cunningham of

the Nashville Police Department and, the next day, by Lieutenant George Pierpont

of the Provo Police Department. After speaking with Lt. Pierpont for a short

time, Mr. Carter confessed to entering Mrs. Olesen’s home, stabbing her several

times, and shooting her in the back of the head.

Mr. Carter was charged with first-degree murder under Utah Code Ann.

§ 76-5-202. No physical evidence or eyewitness testimony placed Mr. Carter at

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the scene of the murder of Mrs. Olesen. See Carter, 2012 WL 3964819, at *2

n.21. The only evidence corroborating Mr. Carter’s confession was the testimony

of Epifanio and Lucia Tovar (Epifanio’s wife), whom the Utah Supreme Court

described as the “key witnesses.” State v. Carter, 888 P.2d 629, 645 (Utah 1995)

(Carter II). Mr. Tovar described to the jury his conversation with Mr. Carter in

which Mr. Carter described how he killed Mrs. Olesen. Mrs. Tovar testified that

she overheard the conversation, though they were speaking in English and Mrs.

Tovar only spoke Spanish. She testified that Mr. Carter demonstrated how he

bound and stabbed Mrs. Olesen and was laughing. Notably, the Tovars testified

they took the stand free of inducement, with the exception of court-ordered

witness fees of $14 each.

On December 18, 1985, the jury found Mr. Carter guilty of first-degree

murder and, the following day, sentenced him to death. The Utah Supreme Court

affirmed Mr. Carter’s conviction, but reversed his death sentence. State v. Carter,

776 P.2d 886 (Utah 1989) (Carter I). In 1992, Mr. Carter was resentenced to

death, and the Utah Supreme Court affirmed. Carter II, 888 P.2d 629.

Mr. Carter filed his first petition for state post-conviction relief in October

1995. The state trial court dismissed all of his claims, and the Utah Supreme

Court affirmed. Carter v. Galetka, 44 P.3d 626 (Utah 2001) (Carter III).

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Mr. Carter’s federal habeas proceedings began in April 2002. On March

1

25, 2004, Mr. Carter filed his initial petition for habeas relief in the district court,

raising nearly fifty claims and various sub-claims. Mr. Carter subsequently

withdrew several of his claims and filed a Second Amended Petition on March 1,

2006. The district court granted Mr. Carter’s request for a stay pursuant to

Rhines v. Weber, 544 U.S. 269 (2005), which authorizes a “stay and abeyance”

procedure where a petitioner presents a “mixed petition”—one including both

exhausted and unexhausted claims—and other requirements are satisfied.

On April 28, 2008, the district court granted Utah’s motion to vacate the

stay and re-open the case. On July 20, 2010, the court issued an order granting in

part Utah’s motion to dismiss, finding that a number of Mr. Carter’s claims,

including his claims that the prosecution improperly suppressed evidence, were

procedurally barred.

2

On August 18, 2011, Mr. Carter filed a new motion for a stay to exhaust

The parties initially disagreed whether Utah satisfied the opt-in

1

provisions of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), and the district court tolled the limitation period while it made this

determination. This court rejected Utah’s request for permission to appeal and a

writ of mandamus challenging the district court’s determination that the limitation

period of 28 U.S.C. § 2244(d)(1) was tolled during this time. Friel v. Carter, No.

04-600 (10th Cir. Mar. 31, 2004).

The court subsequently requested briefing on any further factual

2

development Mr. Carter sought. However, in 2011, after the Supreme Court’s

decision in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), the district court held

that further factual development would be unavailable.

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claims of prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83 (1963),

and Napue v. Illinois, 360 U.S. 264 (1959), based on newly discovered evidence

that Epifanio and Lucia Tovar received cash payments and other favorable

treatment from the Provo Police Department in advance of testifying. The district

court denied Mr. Carter’s motion on the grounds that no Brady or Napue claims

remained in his petition and suggested that he could move to amend or

supplement his petition with such claims. Carter v. Bigelow, No. 2:02–CV–326

TS, 2011 WL 5041202 (D. Utah Oct. 24, 2011). Mr. Carter then moved to amend

or supplement his petition, but the district court denied his motion, relying chiefly

on an intervening footnote from this court directing Mr. Carter to bring “any new

claims” pursuant to the procedures for a second or successive habeas petition.

Carter v. Bigelow, 869 F. Supp. 2d 1322, 1326 (D. Utah 2011) (relying on In re

Olesen, 447 F. App’x 868, 871 n.4 (10th Cir. 2011)).

On September 11, 2012, the district court denied Mr. Carter’s petition for a

writ of habeas corpus. Carter, 2012 WL 3964819. The district court granted a

certificate of appealability on all claims, and Mr. Carter filed a timely appeal.

Discussion

I. Mr. Carter’s Brady/Napue Claims

A. Additional Facts

At trial, Epifanio and Lucia Tovar were key witnesses against Mr. Carter,

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placing him at the scene of the crime on the night of Mrs. Olesen’s murder and

corroborating his confession. Epifanio testified that he and his wife received

nothing more than witness fees of $14 each in exchange for their testimony. In

Utah court, the state maintained that “all evidence in any way relevant to the case

and known to the State” had been provided to Mr. Carter “long ago.” Carter II,

888 P.2d at 636–37.

Some time before Mr. Carter’s resentencing, Epifanio and Lucia Tovar

disappeared. Utah maintained at resentencing, and still maintains, that the Tovars

were unavailable to testify at resentencing because they had fled the country. Id.

at 646; Aplee. Br. 162–67.

In mid-March 2011, Mr. Carter’s counsel was able to locate the Tovars

through what the district court described as “coincidence.” Carter, 2012 WL

3964819, at *2 n.34. The Tovars’ son was arrested in Arizona, agreed to speak

with Mr. Carter’s investigator, and eventually led the investigator to his parents.

Prior to that time, Mr. Carter asserts that his counsel had been searching for the

Tovars but had found no concrete leads—just information that they may have

been in the large city of Culiacán, Mexico.

Epifanio and Lucia Tovar executed declarations describing the favorable

treatment provided to them by the Provo Police Department in advance of Mr.

Carter’s trial. Epifanio, in declarations in April and August of 2011, stated that

the Provo police twice moved him and his wife to a new apartment, paid their rent

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(roughly $400 a month), paid their utilities and phone bills, and brought them

groceries. 13 R. 466–67, 469–70. He further explained that the police coached

his statements during interrogation and specifically told him “not to say anything

about [the police] paying for our apartment and other living expenses” at Mr.

Carter’s trial. Id. at 469. Lucia Tovar, also in April and August of 2011,

executed declarations that the Provo police sent them “gifts,” including food

baskets, one hundred dollars in an envelope, toys for their son, and a Christmas

tree. Id. at 473. She confirmed that the police relocated the Tovars twice and

paid for rent, utilities, and sometimes groceries. Id. at 477. Further, she

explained that her testimony at Mr. Carter’s trial was based not on what she heard

Mr. Carter saying, but on what her husband told her Mr. Carter said. Id. at 473.

The Tovars’ declarations were corroborated, at least in part, by declarations

from officers of the Provo police. Officer Richard Mack explained that it was his

“responsibility to make certain the Tovars were happy,” and he admitted to giving

them gifts, toys, a Christmas tree, and groceries. Id. at 479. As to rent, he

explained, “I do not recall giving them money for their rent. I’m not saying I did

not give them rent money but I do not recall giving them rent money.” Id.

Officer Stan Eggen confirmed that the Provo police “helped the Tovars out.” Id.

at 483. Several of Mr. Carter’s former attorneys attested that the prosecution

never provided them with this information.

Shortly after the latter of the Tovar declarations was executed, Mr. Carter

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requested a stay to exhaust claims of prosecutorial misconduct under Brady and

Napue in Utah state court. The district court denied the motion on the grounds

that Mr. Carter’s petition was not a “mixed” petition; all unexhausted claims had

been removed and only exhausted claims remained. Carter, 2011 WL 5041202, at

*2. Though Mr. Carter’s initial and amended habeas petitions included claims

that the prosecution suppressed evidence of favorable treatment given to the

Tovars in exchange for their testimony against Mr. Carter, the district court had

3

previously dismissed these claims as procedurally defaulted. However, the

district court suggested Mr. Carter could seek to amend or supplement his petition

to include such claims and renew his motion for a stay.

On the same day, the district court denied Utah’s motion to dismiss Mr.

Carter’s petition for lack of prosecution. Before Mr. Carter sought to amend or

supplement his petition, victim’s representative Gary Olesen, Eva Olesen’s son,

petitioned this court for a writ of mandamus ordering the district court to

reconsider its denial of the state’s motion to dismiss Mr. Carter’s petition in a

Claim II of Mr. Carter’s initial federal habeas petition alleged that “the

3

suppression of exculpatory evidence by the prosecution in Mr. Carter’s 1985 case

violated Mr. Carter’s constitutional rights.” 3 R. 209. Specifically, it alleged that

“Mr. Tovar was offered favorable treatment in the form of promises to dismiss

cases, not file cases or other favors from law enforcement and/or the prosecution

in exchange for his testimony against Mr. Carter.” Id. at 217. Claim IX made

analogous allegations as to Mr. Carter’s resentencing, including that both Lucia

and Epifanio Tovar were “offered a deal or favorable treatment in exchange for

[their] testimony.” Id. at 253. Though Mr. Carter subsequently withdrew several

claims, his second amended petition retained these claims. 5 R. 338–39, 375.

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manner that protects his rights to “proceedings free from unreasonable delay” and

to “be treated with fairness” under the Crime Victims’ Rights Act (CVRA), 18

U.S.C. § 3771.

4

This court denied Mr. Olesen’s request for mandamus, explaining that

“while the question is close, we cannot conclude at this juncture that the prejudice

and delay [to Mr. Olesen] overcome Carter’s due process right to have his habeas

case decided.” In re Olesen, 447 F. App’x at 871. We expressed optimism that

“under the present briefing schedule this habeas action will soon be concluded by

a final ruling by the district court” and encouraged the district court to “hold

firm” to its briefing schedule. Id. Then, in a closing footnote, we added: “To the

extent Mr. Carter seeks to assert in the district court any new claims not already

asserted in the habeas petition, he must follow the procedures set forth in 28

U.S.C. § 2244 for filing a second or successive § 2254 habeas petition.” Id. at

n.4. Section 2244 requires, among other things, a showing that “the facts

underlying the claim, if proven and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and convincing evidence that, but for the

constitutional error, no reasonable factfinder would have found the applicant

guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(ii). Mr. Carter

petitioned for panel rehearing to have the footnote removed, but his request was

Pursuant to 18 U.S.C. § 3771(d)(3), this court was given 72 hours to

4

decide the matter.

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denied.

Mr. Carter subsequently sought to amend or supplement his habeas petition

to add claims based on the newly discovered evidence. The district court denied

the request, relying chiefly on the final footnote of In re Olesen. Carter, 869 F.

Supp. 2d at 1325–27. The court interpreted the In re Olesen footnote to be

binding, explaining that it was “not at liberty to ignore the clear statement by the

Tenth Circuit that, if Petitioner seeks to add new claims, he must follow the

procedures set out in 28 U.S.C. § 2244.” Id. at 1326.

Mr. Carter claims that the district court erred in refusing to allow him to

amend or supplement his habeas petition with claims based on the newly

discovered evidence. Likewise, he asserts the district court should have granted

him a stay to exhaust these claims in Utah state court.

B. Supplemental Claims

We review the district court’s denial of Mr. Carter’s motion to supplement

his habeas petition for an abuse of discretion. United States v. Espinoza-Saenz,

5

235 F.3d 501, 503 (10th Cir. 2000). “A district court abuses its discretion when it

renders a judgment that is arbitrary, capricious, whimsical, or manifestly

In reviewing this claim, we note that our analysis is limited to the

5

question whether Mr. Carter should have been allowed to supplement his habeas

petition with Brady and Napue claims; we do not address the merit of either

claim. Specifically, nothing in this opinion is meant to pass on the materiality of

the evidence of favorable treatment given to the Tovars, a prerequisite to the

prosecution’s duty to turn over evidence under Brady. 373 U.S. at 87.

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unreasonable,” United States v. Castillo-Arellano, 777 F.3d 1100, 1103 (10th Cir.

2015), or where “the court ‘exceeded the bounds of permissible choice,’ given the

facts and the applicable law in the case at hand.” United States v. Regan, 627

F.3d 1348, 1352 (10th Cir. 2010) (quoting United States v. McComb, 519 F.3d

1049, 1053 (10th Cir. 2007)). In addition, a district court abuses its discretion

when it commits legal error. Breaux v. Am. Family Mut. Ins. Co., 554 F.3d 854,

866 (10th Cir. 2009) (quoting Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir.

2002)).

In general, a one-year limitation period applies to a federal habeas

application. 28 U.S.C. § 2244(d)(1). However, an application “may be amended

or supplemented as provided in the rules of procedure applicable to civil actions.”

Id. § 2242. The federal rules provide that “the court may, on just terms, permit a

party to serve a supplemental pleading setting out any transaction, occurrence, or

event that happened after the date of the pleading to be supplemented.” Fed. R.

Civ. P. 15(d). Supplemental pleadings are thus appropriate to “set forth new facts

in order to update [an] earlier pleading.” 6A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1504 (3d ed. 2014). They are distinct

from amendments to pleadings under Rule 15, which “relate to matters that

occurred prior to the filing of the original pleading.” Id. Here, Mr. Carter seeks

to add claims based on prosecutorial suppression of evidence and knowing

presentation of false evidence. Because the prosecution’s duty to disclose such

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evidence “is ongoing and extends to all stages of the judicial process,” Smith v.

Roberts, 115 F.3d 818, 820 (10th Cir. 1997) (citing Pennsylvania v. Ritchie, 480

U.S. 39, 60 (1987)), Mr. Carter’s claims could properly constitute either amended

or supplemental pleadings to his habeas petition. See Douglas v. Workman, 560

6

F.3d 1156, 1187 (10th Cir. 2009) (treating petitioner’s suppression-of-evidence

claims as supplemental to his habeas petition); Wolfe v. Clarke, 819 F. Supp. 2d

538, 568–69 (E.D. Va. 2011) (treating petitioner’s claim based on Napue v.

Illinois as a supplemental pleading under Rule 15(d)).

Authorization to supplement pleadings “should be liberally granted unless

good reason exists for denying leave, such as prejudice to the defendants.”

Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001). This

court discussed supplemental pleadings to habeas petitions under similar

circumstances in Douglas, 560 F.3d 1156. There, the petitioner, death-row inmate

Yancy Douglas, uncovered evidence supporting a Brady claim after a federal

We ultimately analyze Mr. Carter’s claims as supplemental pleadings

6

given their close factual relation to our decision in Douglas, 560 F.3d 1156. In

any event, as we have observed, “the standard used by courts in deciding to grant

or deny leave to supplement is the same standard used in deciding whether to

grant or deny leave to amend.” Fowler v. Hodge, 94 F. App’x 710, 714 (10th Cir.

2004) (unpublished) (citation omitted); see also Glatt v. Chi. Park Dist., 87 F.3d

190, 194 (7th Cir. 1996) (same); Wright & Miller, supra, at § 1504 (“Inasmuch as

the discretion exercised by the court in deciding whether to grant leave to amend

is similar to that exercised on a motion for leave to file a supplemental pleading,

the court’s inattention to the formal distinction between amendment and

supplementation is of no consequence.”).

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district court had dismissed his habeas petition, but while his appeal was pending.

Id. at 1160. After benefit of further evidentiary development, this court held that

Mr. Douglas’s claims were more appropriately characterized as supplemental to

his initial petition, rather than as a “second or successive” petition under

§ 2244(b)(2), based on several “unusual circumstances”: (1) Mr. Douglas’s initial

petition remained pending—albeit on appeal; (2) he had raised a claim of

improper prosecutorial vouching in his initial habeas petition, to which his Brady

claim was “closely correlated”; (3) the prosecutor’s violation of Brady was

“willful and intentional”; (4) relatedly, the prosecutor’s misconduct was actively

concealed; (5) Mr. Douglas had been sentenced to death, calling for “a heightened

concern for fairness”; (6) the inequity that would result from granting Mr.

Douglas’s co-defendant relief on an identical Brady claim; and (7) relief was not

inconsistent with AEDPA’s purposes, given the duty incumbent upon the

prosecutor to turn over such evidence. Id. at 1190–95. Notably, habeas

petitioners need not establish all of these factors to be granted leave to

supplement their petitions under such circumstances. Id. at 1190 n.20.

Mr. Carter has an even stronger claim to supplement his petition. Unlike

the petitioner in Douglas, Mr. Carter sought to supplement his petition before the

district court ruled on it. As in Douglas, Mr. Carter’s petition contained a claim

of improper prosecutorial vouching for Mrs. Tovar. Even more, Mr. Carter’s

initial and amended habeas petition contained the precise claim that the

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prosecution suppressed evidence of favorable treatment given to Epifanio and

Lucia Tovar in exchange for their testimony. As to the willfulness and

7

concealment of prosecutorial misconduct, it is difficult to judge these factors

absent further evidentiary development. However, we note that Mr. Tovar’s

declaration that the police directed him “not to say anything about [the police]

paying for our apartment and other living expenses,” appears to suggest willful

concealment. Moreover, when Mr. Carter sought discovery in state court, the

state asserted that “all [exculpatory] evidence . . . was included in police reports

long ago made available to Carter.” Carter II, 888 P.2d at 636–37.

As to the fifth factor, Mr. Carter, like the petitioner in Douglas, has been

sentenced to death, where we observe a “heightened concern for fairness.” 560

F.3d at 1194; see also Lockett v. Ohio, 438 U.S. 586, 604 (1978) (“Th[e]

qualitative difference between death and other penalties calls for a greater degree

of reliability when the death sentence is imposed.”). Finally, allowing Mr. Carter

to supplement his habeas petition does not detract from “principles of comity,

finality, and federalism” underlying AEDPA. Duncan v. Walker, 533 U.S. 167,

178 (2000) (quoting Williams v. Taylor, 529 U.S. 420, 436 (2000)). Such

purposes are not objects to be achieved at any cost, and allowing prosecutors to

These claims had previously been dismissed by the district court as

7

procedurally barred. Nevertheless, as in Douglas, we do not find determinative

the fact that the district court had already dismissed the petitioner’s original,

closely related claims.

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escape habeas review by concealing Brady evidence “cannot have been

Congress’s intent in enacting AEDPA.” Douglas, 560 F.3d at 1195.

In rejecting Mr. Carter’s motion to supplement or amend, the district court

relied on our footnote in In re Olesen stating that Mr. Carter must bring “any new

claims not already asserted in the habeas petition” pursuant to the procedures set

forth for second or successive habeas petitions under 28 U.S.C. § 2244. 447 F.

App’x at 871 n.4 (emphasis added).

We readily concede that this footnote did not provide the district court with

pellucid guidance as to how to analyze additional claims. But the district court

interpreted the footnote as a mandate to treat any claims—not merely any new

claims—that Mr. Carter subsequently brought as second or successive. Such an

interpretation runs headlong into this court’s standards for supplementing habeas

petitions. See Douglas, 560 F.3d at 1190–96. Likewise, it conflicts with

Supreme Court authority setting forth the standards for allowing amendments to

habeas petitions. See Fed. R. Civ. P. 15(a)(2) (courts should “freely give leave”

to amend “when justice so requires”); Mayle v. Felix, 545 U.S. 644, 664 & n.7

(2005) (holding that amendments to habeas petitions relate back under Fed. R.

Civ. P. 15(c)(2) where they are “tied to a common core of operative facts” and

citing with approval Mandacina v. United States, 328 F.3d 995, 999–1000 (8th

Cir. 2003) (amended petition alleging failure to disclose a particular report relates

back to date of original petition generally alleging Brady violation)). We do not

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believe that this court in In re Olesen, without any briefing on whether Mr. Carter

should be allowed to supplement or amend his petition, intended to entirely

foreclose these avenues of relief.

The far more reasonable interpretation of the In re Olesen footnote is one

that harmonizes with existing authority. The footnote prevented Mr. Carter only

from adding “new claims”—i.e., claims that go beyond proper supplements or

amendments to his habeas petition. Under this reading, the footnote was not a

8

directive to the district court, but simply a statement of existing law. Interpreting

the footnote in a manner that conflicted with Tenth Circuit and Supreme Court

standards for supplementing and amending habeas petitions amounted to legal

error warranting reversal under our abuse of discretion standard. See Breaux, 554

F.3d at 866.

Even if we were to agree with the district court’s interpretation of the In re

Olesen footnote, we would still find it erred in treating the footnote as binding.

In In re Olesen, victim’s representative Gary Olesen sought a writ of mandamus

pursuant to the CVRA, 18 U.S.C. § 3771(d)(3), ordering the district court to: (1)

reconsider, in light of Mr. Olesen’s CVRA rights, its denial of the state’s motion

to dismiss Mr. Carter’s habeas petition; (2) afford Mr. Olesen his CVRA rights in

This interpretation is further bolstered by the fact that, as discussed infra,

8

this court, in denying Mr. Olesen’s request for mandamus, would have had no

authority under the CVRA to issue a directive to the district court to bar all

subsequent motions to amend or supplement Mr. Carter’s petition.

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all future proceedings; and (3) “avoid all further unwarranted delay and to report

to this court within two weeks with a scheduling order to resolve the remaining

issues in the habeas case by the end of 2011, if reconsideration of the motion to

dismiss does not result in dismissal.” 447 F. App’x at 868.

We denied Mr. Olesen’s request. Had we granted Mr. Olesen’s request for

mandamus, perhaps we could have ordered the district court to deny any

subsequent motions to amend or supplement by Mr. Carter. See In re Cooper Tire

& Rubber Co., 568 F.3d 1180, 1186 (10th Cir. 2009) (explaining that an appellate

court may use a writ of mandamus “to confine an inferior court to a lawful

exercise of its prescribed jurisdiction or to compel it to exercise its authority

when it is its duty to do so”). But, in denying his request, we denied the only

remedy we are authorized to grant under the CVRA: a writ of mandamus. See 18

U.S.C. § 3771(d)(3). No CVRA provision provides this court with any authority

beyond granting a request for mandamus, and we have elsewhere expressed a

“reluctan[ce] to read additional remedies” into the CVRA. United States v.

Hunter, 548 F.3d 1308, 1315 (10th Cir. 2008) (holding that CVRA victims may

not appeal the alleged denial of their rights except via petition for a writ of

mandamus under 18 U.S.C. § 3771(d)(3)). Thus, even if we adopted the district

court’s interpretation of the In re Olesen footnote, we would nevertheless

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conclude it committed legal error in treating the footnote as binding.

9

Thus, we reverse the district court’s decision and remand with directions to

allow supplementation based on Brady, Napue, and their progeny. Mr. Carter’s

motion to amend or supplement went beyond these claims alone, as it: (1) sought

to resubmit all forty-three of his initial claims for habeas relief, many of which

had already been dismissed on procedural grounds; (2) sought to add three

supplemental claims, two of which actually assert a panoply of constitutional

violations based on the newly discovered evidence; and (3) asked the district

court to revisit a number of its prior rulings regarding exhaustion of state

remedies and procedural default. We remand to the district court to determine in

the first instance whether any additional supplementation or amendment on these

grounds is warranted.

C. Timeliness of Supplemental Claims

As noted, the general limitation period for habeas applications is one year.

28 U.S.C. § 2244(d)(1). This limitations period begins to run from the “latest of”

To be sure, the district court did not rely wholly on the In re Olesen

9

footnote, but also found that allowing Mr. Carter to amend or supplement his

petition “would frustrate the purpose of AEDPA, unduly prolong this already

delayed case, [and] further complicate an already complicated matter.” Carter,

869 F. Supp. 2d at 1327. In addition, it purported to make an independent finding

that “disallowing amendment is necessary to protect the Victim’s Representative’s

statutory right to a proceeding free from unreasonable delay and his right to be

treated with fairness.” Id. at 1328. But, we think these findings cannot be

divorced from its reliance on the In re Olesen footnote.

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four dates, including “the date on which the factual predicate of the claim or

claims presented could have been discovered through the exercise of due

diligence.” Id. § 2244(d)(1)(D).

10

On April 19, 2011 and August 4, 2011, Mr. Carter obtained declarations

from the Tovars stating that the Provo Police Department had provided them with

favorable treatment prior to their testimony against Mr. Carter. Two weeks after

the latter of these declarations, Mr. Carter moved to stay proceedings to exhaust

claims based on this newly discovered evidence in state court. On November 11,

2011, after this request was denied, Mr. Carter sought to amend or supplement his

petition with claims based on this evidence.

Utah argues Mr. Carter’s supplemental claims are not timely because Mr.

Carter presented no evidence that he could not have located the Tovars prior to

2011 through the exercise of due diligence. Aplee. Br. 61–62. We disagree.

We begin by noting that Utah’s contention appears particularly

disingenuous given its assertions at resentencing and before this court that the

Tovars were unavailable to testify at resentencing because they had fled the

country. The state, with its extensive resources, was unable to locate the Tovars;

yet it asserts that Mr. Carter, through due diligence, should have.

Because we conclude that Mr. Carter’s claim was timely under

10

§ 2244(d)(1)(D), we need not address Mr. Carter’s argument that § 2244(d)(1)(B)

or principles of equitable tolling apply.

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But more importantly, due diligence did not require Mr. Carter to divine all

possible sources of suppressed evidence; he was entitled to rely on the state’s

representation that “all [exculpatory] evidence in any way relevant to the case and

known to the State was included in police reports long ago made available” to

him. Carter II, 888 P.2d at 636–37. “When police or prosecutors conceal

significant exculpatory or impeaching material in the State’s possession, it is

ordinarily incumbent on the State to set the record straight.” Banks v. Dretke,

540 U.S. 668, 675–76 (2004); see also id. at 695 (“Our decisions lend no support

to the notion that defendants must scavenge for hints of undisclosed Brady

material when the prosecution represents that all such material has been

disclosed.”). As we have discussed, the prosecutorial obligation to turn over

material exculpatory or impeachment evidence “continues throughout the judicial

process.” Douglas, 560 F.3d at 1173. Accordingly, courts have found under

similar circumstances that the limitation period does not begin to run until postconviction counsel receives Brady evidence. Id. at 1181 (Brady claim timely

under § 2244(d)(1)(D) where state shielded evidence that could have been used to

impeach key witness); Quezeda v. Scribner, 611 F.3d 1165, 1167–68 (9th Cir.

2010) (Brady claims timely under § 2244(d)(1)(D) where state repeatedly denied

existence of Brady material); Mitchell v. Jones, No. CIV 06-503-RAW-KEW,

2008 WL 496072, at *4 (E.D. Okla. Feb. 20, 2008) (holding that state court was

“incorrect in placing the burden of discovery of [Brady evidence] on petitioner”).

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Thus, we hold that Mr. Carter’s supplemental Brady and Napue claims are

timely under § 2244(d)(1)(D).

D. Stay to Pursue Unexhausted Claims in State Court

Where a district court is presented with a habeas petition containing both

exhausted and unexhausted claims, it may “stay the petition and hold it in

abeyance while the petitioner returns to state court to exhaust his previously

unexhausted claims.” Rhines, 544 U.S. at 275. Such a stay and abeyance is

appropriate where a petitioner shows: (1) “good cause for his failure to exhaust”;

(2) “his unexhausted claims are potentially meritorious”; and (3) “there is no

indication that the petitioner engaged in intentionally dilatory litigation tactics.”

Id. at 278. The district court denied Mr. Carter’s initial motion for a stay on the

grounds that no Brady or Napue claims remained in Mr. Carter’s petition. When

the court subsequently denied Mr. Carter’s motion to amend or supplement, it

further denied his renewed motion to stay. Thus, the district court did not decide

the issue whether a stay to pursue unexhausted claims is appropriate, and we

remand to allow it to make this determination in the first instance.

II. Ineffective Assistance of Guilt-Phase Counsel

Mr. Carter contends that his guilt-phase counsel was ineffective for:

(1) failing to obtain the prosecution’s file against Mr. Carter, which contained

some exculpatory evidence; and (2) failing to adequately challenge the admission

of Mr. Carter’s confession.

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To prevail on a claim of ineffective assistance of counsel, Mr. Carter must

first show deficient performance—i.e., that “counsel’s representation fell below

an objective standard of reasonableness.” Strickland v. Washington, 466 U.S.

668, 688 (1984). We “must indulge a strong presumption that counsel’s conduct

[fell] within the wide range of reasonable professional assistance.” Id. at 689.

Next, Mr. Carter must show prejudice—i.e., “a reasonable probability that, but for

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

different.” Id. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. It does not require a showing that

counsel’s errors more likely than not altered the outcome of the proceedings. Id.

A. Failure to Obtain Prosecution’s File

At Mr. Carter’s trial, his counsel indicated that he was “taken by surprise”

by certain evidence presented by the prosecution. Trial Transcript at 1301. The

11

prosecutor stated that he had never received a proper written discovery request

from defense counsel. The trial court admitted the evidence in question and

found that “it doesn’t appear . . . that a proper specific request [for discovery of

the prosecution’s case file] has been made by the defense.” Id. at 1303–04.

Within the prosecution’s case file were several pieces of evidence relevant

Records from the trial and sentencing proceedings were submitted on

11

two CDs as part of the supplemental record on appeal. We refer to the trial

transcripts by Bates stamp number and resentencing transcripts by page number.

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to Mr. Carter’s case. First, the file contained police reports regarding several

12

other suspects, including Orla Olesen, Eva’s husband. Mr. Olesen failed a

13

polygraph examination given to him in conjunction with the murder investigation.

Additional evidence suggested the couple had a strained relationship. A neighbor

of the Olesens indicated that his deceased mother had expressed concern that Mr.

Olesen was a danger to Mrs. Olesen. Another neighbor stated that Orla and Eva

had a troubled relationship, regularly avoided each other, and that Orla had stated

he “didn’t need [Eva].” 16 R. 359.

Second, the file contained a report showing that no blood or other evidence

was found on clothing seized from Mr. Carter’s residence. Third, the file

Rather than citing to the appendix in this case, Mr. Carter frequently

12

cited the many records from state court proceedings, most often the record before

the Utah Supreme Court in Carter v. State, 289 P.3d 542 (Utah 2012) (Carter IV).

See, e.g., Aplt. Br. 7–15, 19–20, 40–45. Citing to the appendix greatly assists the

court. Cf. 10th Cir. R. 28.1(A).

The file also contained reports on two other suspects: Michael Cox and

13

Gary Dean Hilfiker. Mr. Cox had a history of mental illness and was living at a

local motel as part of an outpatient program at the time of the murder. An

acquaintance of Mr. Cox told the police that Mr. Cox came home at 3:30 am on

the morning after the homicide and was “all shook up.” 16 R. 293. Mr. Cox’s

shoes had footprints that bore some similarity to footprints found behind the

Olesen home, but it appears the police compared the castings and did not find a

match. Mr. Cox’s fingerprints were not found at the scene of the crime, nor did

any other physical evidence link him to the crime. Mr. Cox did not confess, nor

do any of the individuals referenced in the police reports implicate Mr. Cox in the

crime. As to Mr. Hilfiker, the police found that he “could not be placed at the

scene through any type of evidence,” including fingerprints. Id. at 337. Mr.

Carter notes that Mr. Hilfiker was convicted seven years later for the murder of a

woman who was stabbed repeatedly, but, of course, this evidence did not appear

in the prosecution’s file in 1985.

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contained evidence of a blonde pubic hair found on Mrs. Olesen’s sweater that

was “microscopically dissimilar” to Mrs. Olesen’s.

14

On direct appeal, the Utah Supreme Court rejected Mr. Carter’s claim that

trial counsel was ineffective for failing to obtain discovery of the prosecution’s

file, holding that he could not satisfy either prong of Strickland. Carter I, 776

P.2d at 893–94. Where a state court has adjudicated a claim on the merits, a

petition for habeas relief cannot be granted unless the state adjudication “(1)

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

application of, clearly established Federal law, as determined by the Supreme

Court of the United States”; or “(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). Given that both Strickland and

AEDPA’s standards of review are “highly deferential,” habeas review of

ineffective assistance claims is “doubly so.” Harrington v. Richter, 562 U.S. 86,

105 (2011). Thus, we grant relief only where a state court disposition “was so

lacking in justification that there was an error well understood and comprehended

in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

It is unclear based on the record whether the prosecution’s case file was

14

before the Utah Supreme Court when it resolved Mr. Carter’s ineffective

assistance of guilt-phase counsel claim. Carter I, 776 P.2d at 893–94. For the

sake of this claim, we assume, as did the district court, Carter, 2012 WL 3964819,

at *23 n.200, that the file was before the Utah Supreme Court. Mr. Carter appears

to accept this assumption. Aplt. Br. 105 n.9.

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We agree with the district court that counsel’s failure to undertake the

proper steps to receive the prosecution’s case file was almost certainly deficient.

See Rompilla v. Beard, 545 U.S. 374, 387 (2005) (“It is the duty of the lawyer to

conduct a prompt investigation of the circumstances of the case . . . . The

investigation should always include efforts to secure information in the

possession of the prosecution and law enforcement authorities.” (quoting ABA

standards)). Nevertheless, we need not address whether counsel’s performance

was deficient if Mr. Carter cannot show he was prejudiced by the error.

Strickland, 466 U.S. at 697. Upon review of the record, the Utah Supreme

Court’s conclusion that Mr. Carter failed to show prejudice was not

unreasonable.

15

Mr. Carter first argues the Utah Supreme Court applied the wrong legal

standard when it held that his allegations did not show that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Carter I, 776 P.2d at 893–94. Mr. Carter contends the court wrongly imposed a

“but-for” test, omitting the key language in Strickland that prejudice requires only

a reasonable probability that absent counsel’s errors, the result would have been

Because the Utah Supreme Court did not grant Mr. Carter an evidentiary

15

hearing, he asserts its decision was an unreasonable determination of the facts

entitling him to a federal evidentiary hearing. Aplt. Br. 112–14. Mr. Carter

suggests such a hearing might reveal that trial counsel’s decisions were not

tactical. Because we conclude that, regardless, Mr. Carter cannot show prejudice,

we reject this request.

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different. We disagree. The footnote appended to the sentence Mr. Carter cites

explicitly refers to the “reasonable likelihood” standard. Id. at 894 n.30.

Mr. Carter next asserts more generally that the Utah Supreme Court

unreasonably concluded that he could not show prejudice. We disagree. Had

counsel properly obtained discovery of the prosecution’s case file, there is no

reasonable probability that the jury would have reached a different outcome.

Strickland requires us to examine “the totality of the evidence” in assessing

whether counsel’s errors were prejudicial. 466 U.S. at 695; see Wiggins v. Smith,

539 U.S. 510, 534 (2003) (“In assessing prejudice, we reweigh the evidence . . .

against the totality of available . . . evidence.”). Thus, where a verdict is

supported by “overwhelming” evidence, an attorney’s error is less likely to exert

a prejudicial effect. Strickland, 466 U.S. at 695–96. Here, Mr. Carter confessed

to the murder of Mrs. Olesen, and his confession was corroborated by the

testimony of Epifanio and Lucia Tovar. Though evidence from the

16

prosecution’s file certainly would have aided in Mr. Carter’s defense, we cannot

say that, in light of the corroborated confession, it creates a reasonable

probability the jury would have acquitted him.

Much of the evidence, such as the hearsay and double-hearsay statements

As the recent declarations from the Tovars and Provo police were not

16

before the Utah Supreme Court when it resolved Mr. Carter’s claim of ineffective

assistance of guilt-phase counsel, we do not consider them in our prejudice

analysis. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

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regarding the relationship between Mr. and Mrs. Olesen and the results of Mr.

Olesen’s polygraph examination, would have faced substantial barriers to

admission that Mr. Carter does not address in his briefing. See Wiggins, 539 U.S.

at 536 (admissibility of evidence bears on determination of prejudice); Neill v.

Gibson, 278 F.3d 1044, 1056 (10th Cir. 2001) (holding that the district court did

not abuse its discretion in refusing to consider inadmissible hearsay in its

Strickland prejudice analysis). Further, the report that no blood was found on

clothes seized from Mr. Carter’s home hardly could have influenced the jury in

light of the fact that counsel repeatedly emphasized the lack of physical evidence

linking Mr. Carter to the crime at closing argument. Among other things, counsel

argued that the state had not produced the gun involved with the murder, that no

fingerprints linked Mr. Carter to the scene of the crime, and that the bullets used

were not necessarily of the same type as those recovered from Mr. Carter’s home.

At best, the additional fact of the absence of blood on clothes seized from Mr.

Carter’s home would have had a negligible effect on the jury. Finally, the pubic

hair found on Mrs. Olesen’s sweater, which both parties suggest likely belonged

to Mr. Olesen, is hardly incriminating given that Mrs. Olesen’s body was found in

Mr. Olesen’s home and the two were married.

In short, given the doubly deferential standards of AEDPA and Strickland,

we cannot say that the Utah Supreme Court unreasonably rejected Mr. Carter’s

claim of ineffective assistance of counsel for failure to obtain discovery of the

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prosecution’s file.

B. Failure to Adequately Challenge Mr. Carter’s Confession

Mr. Carter was arrested in Nashville, Tennessee on June 11, 1985. The

police also arrested JoAnne Robins, a woman with three children with whom Mr.

Carter had been living for three weeks. After Mr. Carter was interrogated for

roughly four hours on June 11 and four hours on June 12, he confessed to

Lieutenant Pierpont of the Provo police.

Prior to trial, Mr. Carter’s counsel moved to suppress his confession.

Counsel introduced an affidavit from Mr. Carter and called Mr. Carter to testify

that the two officers who interrogated him threatened to bring charges against Ms.

Robins if he did not cooperate. Counsel attempted to introduce an unsigned

affidavit from Ms. Robins, but the trial court rejected this effort. Although

counsel was granted leave to substitute a signed version, he did not. Finally,

counsel cross-examined the two police officers regarding their testimony that they

did not use threats to procure a confession from Mr. Carter.

On direct appeal, Mr. Carter argued that counsel inadequately challenged

his confession, and the Utah Supreme Court rejected this argument. Carter I, 776

P.2d at 893. We again review this determination under the deferential standards

of § 2254(d), asking simply whether “there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105.

Mr. Carter first argues that counsel erred by failing to procure a signed

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declaration from Ms. Robins. In support of this argument, Mr. Carter relies on a

declaration from March 2009 by Ms. Robins that, at the time of Mr. Carter’s

arrest, police arrested her and threatened her with prosecution for “harboring an

escapee/fugitive.” 16 R. 361. As the Utah Supreme Court did not have this

declaration before it in Carter I, we cannot consider it. See Cullen v. Pinholster,

131 S. Ct. 1388, 1398 (2011) (“[R]eview under 28 U.S.C. § 2254(d)(1) is limited

to the record that was before the state court that adjudicated the claim on the

merits.”). Regardless, the fact the police might have threatened Ms. Robins

directly with prosecution does not bear on whether the police threatened Mr.

Carter with charging Ms. Robins in an attempt to leverage a confession.

Moreover, for reasons discussed as part of Mr. Carter’s Claim VII, such a threat

would not render his confession involuntary.

Mr. Carter next contends that counsel should have presented the testimony

of Julie Hoffman, the case preparation officer who typed Mr. Carter’s confession

as dictated by one of the interrogating officers. Ms. Hoffman recently signed a

declaration that she did not recall transcribing Mr. Carter’s statement, that it did

not appear to be recorded in the normal manner, and that she is almost certain she

was not present when Mr. Carter’s statements were made. However, again, Mr.

Carter relies solely on evidence not before the Utah Supreme Court in support of

his argument; thus, we reject it. Pinholster, 131 S. Ct. at 1398.

Finally, Mr. Carter contends counsel failed to present evidence of his low

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intelligence in challenging his confession. But, for reasons discussed in our

analysis of Mr. Carter’s Claim VII challenging his confession, Mr. Carter cannot

establish prejudice, because his low intelligence alone is insufficient to render his

confession involuntary.

For the foregoing reasons, we affirm the district court’s denial of habeas

relief on Mr. Carter’s ineffective assistance of guilt-phase counsel claims.

III. Ineffective Assistance of Appellate Counsel

Mr. Carter next contends that appellate counsel was ineffective for failing

to adequately marshal evidence in the prosecution’s file to argue ineffective

assistance of trial counsel. He asserts that appellate counsel did not present the

prosecution’s case file to the Utah Supreme Court in attempt to establish the

prejudice prong of an ineffective assistance of trial counsel claim.

The Strickland framework governs claims of ineffective assistance of

appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). Thus, to

succeed, Mr. Carter must show that his counsel’s representation was objectively

unreasonable and that, absent the error, he had a reasonable likelihood of success

on the appeal. Cargle v. Mullins, 317 F.3d 1196, 1202–03 (10th Cir. 2003).

Mr. Carter raised this claim in his initial state habeas petition, and the Utah

Supreme Court rejected it on the merits. Carter III, 44 P.3d at 641. Thus, we

17

Mr. Carter contends that de novo review applies because the Utah

17

Supreme Court misunderstood his position to be that appellate counsel failed to

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review under the deferential standard of § 2254(d).

Mr. Carter’s primary argument is that the Utah Supreme Court’s

determination that counsel was not ineffective was an unreasonable application of

federal law. For the sake of this argument, Mr. Carter takes issue with the

18

district court’s assumption that the Utah Supreme Court in Carter I had before it

the prosecution’s case file. 2012 WL 3964819, at *23 n.200. We agree that the

record is unclear on whether Mr. Carter’s appellate counsel brought this evidence

to the attention of the Utah Supreme Court.

However, even assuming appellate counsel did not, Mr. Carter’s claim fails

under Strickland’s prejudice prong. Mr. Carter cannot show a reasonable

argue ineffective assistance of trial counsel, when instead his position was that

appellate counsel did so ineffectively. Aplt. Br. 121. However, in briefing to the

Utah Supreme Court, Mr. Carter twice described his claim as “appellate counsel’s

failure to raise ineffectiveness of trial counsel.” Appellant’s Opening Brief at 11,

Carter III, 44 P.3d 626; id. at 47 (24 R., Add. M). We cannot fault the Utah

Supreme Court for addressing the issue as Mr. Carter framed it; thus, we reject

his argument.

Mr. Carter makes two additional arguments why the Utah Supreme Court

18

decision was unreasonable. First, he argues the decision was unreasonable

because it relied upon since-disavowed Tenth Circuit precedent that requires a

claim omitted on appeal to be a “dead-bang winner” to prevail on a claim of

ineffective assistance of appellate counsel. Aplt. Br. 120 (citing Neill, 278 F.3d

at 1057 n.5). Mr. Carter did not raise this argument below, and in fact relied

upon the “dead-bang winner” language in his argument. Regardless, under

§2254(d)(1), state court applications of federal law are measured against the

yardstick of clearly established federal law “at the time the state court renders its

decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). Second, Mr. Carter

contends that because the Utah Supreme Court disposed of this claim without an

evidentiary hearing, the decision resulted in unreasonable findings of fact. Mr.

Carter provides no legal support for this argument; thus, we reject it.

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probability that, but for counsel’s failure to marshal evidence from the

prosecution’s file, his claim of ineffective assistance of trial counsel would have

succeeded. Cargle, 317 F.3d at 1202. Success on the ineffective assistance of

trial counsel claim would turn on a finding that trial counsel’s failure to obtain

the prosecution’s file prejudiced Mr. Carter, which, for reasons discussed above,

we have rejected. Thus, we affirm the district court’s denial of this claim.

IV. Ineffective Assistance of Resentencing Counsel

Mr. Carter next argues that his 1992 resentencing counsel was ineffective

for: (1) failing to adequately investigate and present mitigating evidence;

(2) failing to strike a juror who Mr. Carter claims was racist and predisposed to

vote in favor of the death penalty; and (3) failing to challenge the integrity of the

proceedings or argue “residual doubt.” We disagree.

A. Failure to Adequately Investigate and Present Mitigating Evidence

At Mr. Carter’s resentencing, counsel called Mr. Carter’s mother, brother,

and sister to testify, along with clinical and forensic psychologist Robert Howell.

Mr. Carter’s mother testified that Mr. Carter’s father left when he was

young, and he was instead raised by his alcoholic step-father. She testified that

Mr. Carter grew up in a “nice neighborhood” on Chicago’s south side, but that

when Mr. Carter was a teenager, they moved to a predominantly white

neighborhood. There, Mr. Carter was treated poorly because of his race,

including being “spat on,” and chased by boys with chains. She mentioned that

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Mr. Carter had fallen from a bedroom window as a child and hit his head. She

further testified that Mr. Carter sent her Mother’s Day cards, wrote poetry, read,

and learned while in prison and that she loved her son very much and did not

want him to die. Resentencing Transcript 1144–63.

Mr. Carter’s brother testified that they grew up in a “tough” but “close

knit” neighborhood, that he and Mr. Carter had been attacked by other children

because of their race, that Mr. Carter’s close friend had been killed when they

were young, and that he loved Mr. Carter. Id. at 1171–1204. Mr. Carter’s sister

described him as a shy child, noted that he loved children, and stated that she

loved him. Id. at 1163–71.

Dr. Howell was a forensic and clinical psychologist with a doctoral degree

in psychology that was employed by Brigham Young University at the time of

Mr. Carter’s resentencing. He was a member and past president of the Utah

Psychological Association, a fellow of the American Psychological Association,

and a past officer of the Rocky Mountain Psychological Association. Dr. Howell

conducted psychological examinations of Mr. Carter over a period of eight days

and spoke with several of Mr. Carter’s family members and his former spouse.

He testified, based on neuropsychological and physical test results and

conversations with Mr. Carter, that Mr. Carter suffered from organic cerebral

brain dysfunction. He testified that Mr. Carter’s problems stemmed from the

absence of a father figure early in his life and a head injury that Mr. Carter

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sustained as a teenager. He testified that, as a result of Mr. Carter’s brain

damage, he had impaired judgment, and substance abuse exacerbated this

problem. Id. at 1209–35.

Finally, Mr. Carter addressed the resentencing jury in an unsworn statement

in which he apologized to Mrs. Olesen’s family and his family and asked the jury

to spare his life.

Mr. Carter argued ineffective assistance of resentencing counsel in his first

state post-conviction proceeding. The Utah trial court rejected the claim, finding

that counsel presented a “not insubstantial body of mitigating evidence,”

especially in light of the “vacuum” that Mr. Carter offered at the post-conviction

stage. 24 R., Add. D., at 15. The Utah Supreme Court agreed, finding that Mr.

Carter failed to show either prong of Strickland. Carter III, 44 P.3d at 637.

Applying the deferential standards of § 2254(d), the district court concluded that

the Utah Supreme Court’s resolution of Mr. Carter’s claim was not unreasonable.

Carter, 2012 WL 3964819, at *32. We agree.

Mr. Carter first contends that counsel provided ineffective assistance by

stipulating to the appointment of Dr. Howell as a mental health expert, both

because of Dr. Howell’s alleged conflict of interest and because he was not an

“independent defense expert.” Aplt. Br. 124–26 (citing Ake v. Oklahoma, 470

U.S. 68, 76 (1985)). Mr. Carter notes that in 1985—prior to the time Mr. Carter

became a suspect and seven years before his resentencing—Dr. Howell had

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prepared a letter for the Provo Police Department explaining what he thought

were the likely psychological traits of Mrs. Olesen’s killer.

Mr. Carter provides no authority to support his contention that reasonable

professional assistance required counsel to learn of Dr. Howell’s earlier

involvement with the investigation and request a different mental health expert.

Nor does he provide support for his argument that stipulating to the appointment

of a qualified mental health expert was defective assistance. Moreover, in light of

the substantial mitigating testimony Dr. Howell provided, including testimony

that Mr. Carter suffered from organic cerebral brain dysfunction, Mr. Carter

cannot establish that he was prejudiced by counsel’s decisions.

Next, Mr. Carter contends more generally that counsel’s representation was

ineffective because of his “halfhearted” mitigation investigation. Aplt. Br.

126–35. Under Strickland, “counsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular investigations

unnecessary.” 466 U.S. at 691. However, counsel must be given “wide latitude”

in “making tactical decisions.” Id. at 689. Only where counsel’s actions are not

justifiable as reasonable strategic decisions can representation be defective. See,

e.g., Williams v. Taylor, 529 U.S. 362, 395 (2000) (counsel did not conduct

investigation into records due to improper belief that state law barred access to

records); Wiggins, 539 U.S. at 526 (counsel’s failure to “investigate thoroughly

resulted from inattention, not reasoned strategic judgment”).

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The Utah Supreme Court’s conclusion that resentencing counsel was not

deficient was not unreasonable. Counsel interviewed several of Mr. Carter’s

family members—his mother, his brother, and his sister—about Mr. Carter’s

personal and family history. This history painted Mr. Carter as a man with a

difficult upbringing who was loved by his family, and who in return cared deeply

about them. Further, counsel hired a mental health expert to perform an extensive

examination that included physical and neuropsychological testing, resulting in a

diagnosis of organic brain damage. This evidence further suggested that the

organic brain damage traced back to Mr. Carter’s head injury as a youth and the

absence of a father figure. Counsel’s efforts went well beyond the efforts of

counsel in the cases on which Mr. Carter relies. See Williams, 529 U.S. at 369

(counsel merely interviewed three witnesses who described defendant as a “nice

boy” and “not a violent person” and presented a psychiatrist’s taped statement

that contained virtually no mitigation evidence); Wiggins, 539 U.S. at 516, 526

(counsel conducted investigation into “a narrow set of sources” and “[a]t no point

. . . proffer[ed] any evidence of petitioner’s life history or family background”).

The crux of Mr. Carter’s argument is that counsel painted a “rosy picture”

of Mr. Carter’s upbringing, when in fact his personal and family history were far

more troubling. Aplt. Br. 129. Mr. Carter points to evidence that, among other

things: (1) Mr. Carter grew up in an area “infamous for its crime, poverty, drug

addiction, and gang violence”; (2) Mr. Carter’s parents and siblings frequently

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abused drugs and alcohol; and (3) Mr. Carter was sexually abused by his stepgrandmother as a child. Id. at 40–42. While this may be “compelling,” Carter,

2012 WL 3964819, at *34, it was not before the Utah Supreme Court when it

resolved Mr. Carter’s claim. Thus, we cannot consider it. Pinholster, 131 S. Ct.

at 1398.

19

B. Failure to Remove Juror David Nelson

In a juror questionnaire, potential juror David Nelson indicated that he

believed in “blood atonement,” which he described to mean “[i]f you take a life

you must pay for it with your life.” He also indicated that he believed in the

“mark of Cain,” which he described to mean “[b]lack skin or dark skin for Cain

killing Able [sic].” He explained that he believed the death penalty was

warranted “when it is is [sic] premeditated murder.” While voting for the death

penalty would “scare[]” and “haunt” him, he “would vote for it if [it] was

needed.”

At voir dire, Mr. Nelson stated that there was nothing in his belief system

Mr. Carter contends that Martinez v. Ryan, 132 S. Ct. 1309 (2012),

19

“provides a vehicle for the federal court to consider the compelling evidence of

mitigation,” Pinholster notwithstanding. Aplt. Br. 124, 142–49. Martinez held

that, where claims of ineffective assistance of trial counsel must be raised in

collateral proceedings, ineffective assistance of initial post-conviction counsel

can establish cause for procedural default of the ineffective assistance of trial

counsel claim. 132 S. Ct. at 1320. But the ineffective assistance of sentencing

counsel claims at issue here were not found to be procedurally defaulted; they

were rejected on the merits by the Utah Supreme Court in Carter III. Thus,

Martinez provides Mr. Carter no relief.

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that would cause him to automatically vote for the death penalty, and the fact that

Mr. Carter was black would not affect his view of the case at hand. He explained

he would make a decision based on the facts presented and would follow the

court’s instructions. Mr. Nelson subsequently became the foreman of Mr.

Carter’s jury.

Mr. Carter contends that resentencing counsel was ineffective for not

removing Mr. Nelson, because he “openly admitted holding racist views” and

“felt the only appropriate sentence for murder was death.” Aplt. Br. 135. The

Utah Supreme Court rejected this argument in Mr. Carter’s first state postconviction appeal, finding that Mr. Carter could not satisfy either prong of

Strickland. Carter III, 44 P.3d at 637–39. Because the Utah Supreme Court

resolved Mr. Carter’s claim on the merits, we review under the deferential

standards of § 2254(d).

Pursuant to Strickland, we “indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” 466

U.S. at 689. Moreover, this court has held that “an attorney’s actions during voir

dire are considered to be matters of trial strategy” and, as such, “cannot be the

basis for a claim of ineffective assistance unless counsel’s decision is shown to be

so ill chosen that it permeates the entire trial with obvious unfairness.” Nguyen

v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997); see also United States v.

Taylor, 832 F.2d 1187, 1196 (10th Cir. 1987) (“[T]he use of peremptory

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challenges to construct a fair and impartial jury panel will normally fall squarely

within the realm of a tactical trial decision.”).

Mr. Carter relies primarily on Morgan v. Illinois, 504 U.S. 719 (1992), for

his argument that counsel’s failure to strike Mr. Nelson amounted to ineffective

assistance. Morgan held that jurors who would automatically vote for the death

penalty must be removed for cause under the Due Process Clause. Id. at 729. But

Mr. Nelson explicitly stated that nothing in his belief system would lead him to

conclude automatically that Mr. Carter should receive the death penalty.

Mr. Carter further asserts that counsel struck other potential jurors who

held the same beliefs as Mr. Nelson, indicating that his failure to strike Mr.

Nelson was the product of neglect, not strategy. But a review of the beliefs of

these other potential jurors indicates that counsel had good reason to remove them

while still passing Mr. Nelson. One believed racial minorities were prone to

commit more crime, believed defense attorneys coached their clients to lie, had

negative feelings toward Mr. Carter, and was uncertain he was capable of

following the court’s instructions. Another believed the death penalty was

warranted in most murder cases and was opposed to serving as a juror. And, a

third stated he was biased against people of Mr. Carter’s race and incapable of

making a decision independent of race, and that he believed Mr. Carter “should

die for what he did.”

To be sure, the fact that jurors with such extreme views were stricken does

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not preclude a finding that failure to strike a juror with less extreme views

constitutes deficient performance. However, it does belie Mr. Carter’s assertion

that counsel’s failure to strike Mr. Nelson was merely the product of neglect.

Counsel questioned Mr. Nelson at length regarding his juror questionnaire

answers. Mr. Nelson explained that he would not automatically vote for the death

penalty, that his belief in the “mark of Cain” was not relevant to the case at hand,

that he would make his decision based on the facts presented in court, and that he

would follow the court’s instructions. Most significantly, counsel knew that

voting for the death penalty would “scare” and “haunt” Mr. Nelson, and that he

would only vote for it if “needed.”

In light of Strickland’s presumption of reasonable representation, and the

greater force this presumption assumes in the context of voir dire, we cannot say

that the Utah Supreme Court’s decision was unreasonable.

C. Failure to Challenge Integrity of the Proceedings

Finally, Mr. Carter contends resentencing counsel was ineffective for

“fail[ing] to introduce into the record the substantial and compelling evidence of

residual doubt that existed.” Aplt. Br. 140. However, the jury was specifically

informed by the court that it was “improper for you to again debate or reconsider

the question of the defendant’s guilt or innocence.” Moreover, Mr. Carter cites

no authority suggesting that failure to argue residual doubt can constitute

ineffective assistance. Thus, we reject his argument.

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V. Prosecutorial Vouching and Comment on Mr. Carter’s Silence

Mr. Carter next contends that his right to due process and right to remain

silent were violated by: (1) the prosecutor’s vouching for the credibility of Lucia

Tovar at closing argument; and (2) the prosecutor’s statement at closing argument

that he had heard no evidence suggesting Mr. Carter’s confession was coerced.

Mr. Carter raised these claims on direct appeal, and the Utah Supreme Court

rejected them on the merits. Carter I, 776 P.2d at 891, 896. Thus, we again

20

review under the deferential standards of § 2254(d).

A. Vouching for Lucia Tovar’s Testimony

At closing argument, the prosecutor stated: “You know, Lucia Tovar to me

was one of the most impressive witnesses in this particular case. She told you in

all honesty everything that she saw.” Trial Transcript at 1353. Mr. Carter

contends that this statement amounted to prosecutorial vouching in violation of

his right to due process.

A prosecutor has a “duty to refrain from improper methods calculated to

produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88 (1935).

Thus, an attorney cannot “indicat[e] a personal belief in [a] witness’ credibility

As to Mr. Carter’s claim of prosecutorial vouching, the Utah Supreme

20

Court did not address the claim individually, but simply stated that it had

“reviewed [Mr. Carter’s] other claims raised on appeal and f[ound] them to be

without merit.” Carter I, 776 P.2d at 896. Mr. Carter does not dispute that this

was a merits disposition.

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. . . through explicit personal assurances of the witness’ veracity.” United States

v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990); Berger, 295 U.S. at 88

(prosecutor must refrain from “improper suggestions, insinuations, and,

especially, assertions of personal knowledge”).

In order to prevail on a claim of prosecutorial vouching, a petitioner must

show prejudice. See United States v. Young, 470 U.S. 1, 18 (1985); Berger, 295

U.S. at 89. Courts must consider whether the misconduct of the prosecutor was

“slight or confined to a single instance,” as opposed to “pronounced and

persistent.” Berger, 295 U.S. at 89. The appropriate inquiry is whether a

prosecutor’s remark “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974); see also Patton v. Mullin, 425 F.3d 788, 811 (10th Cir. 2005). This

analysis must consider “all the surrounding circumstances, including the strength

of the state’s case.” Hamilton v. Mullin, 436 F.3d 1181, 1187 (10th Cir. 2006)

(quoting Coleman v. Brown, 802 F.2d 1227, 1237 (10th Cir. 1986)).

Here, we cannot say that the Utah Supreme Court’s resolution of Mr.

Carter’s claim was unreasonable. The prosecutor’s single offhanded remark did

not so infect Mr. Carter’s trial with unfairness that it amounted to a denial of due

process. The comment was an isolated instance and certainly not a recurring

theme of the prosecution’s closing argument. Furthermore, the court instructed

the jury that counsel’s statements were not to be considered as evidence. Trial

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Transcript at 162, 170; see United States v. Roberts, 185 F.3d 1125, 1144 (10th

Cir. 1999) (relying in part on a jury instruction that “the statements and

arguments of these lawyers are not evidence” in concluding that prosecutor’s

comments were harmless error). Thus, we conclude that Mr. Carter has not

shown that the Utah Supreme Court’s resolution of his claim was unreasonable.

21

B. Prosecutor’s Comment on Mr. Carter’s Silence

At Mr. Carter’s trial, Sgt. Cunningham and Lt. Pierpont, who interrogated

Mr. Carter in advance of his confession, testified that they did not leverage Mr.

Carter’s concern for JoAnne Robins, the woman with whom Mr. Carter was

living, to extract a confession. Before closing argument, the court instructed the

jury that Mr. Carter was not required to testify and that the jury could not

consider his decision not to testify as evidence of guilt. At closing argument, the

prosecutor said,

I heard no evidence, evidence, [sic] from the witness stand about

coercion or about inducing somebody to say anything about

something that didn’t happen. I heard no evidence that supports any

other theory in this case than the theory that was presented by the

State of Utah, that he’s guilty of first degree murder.

At the conclusion of Mr. Carter’s argument, he asserts “[t]he new

21

information regarding the Tovars should also be considered in determining this

claim.” Aplt. Br. 153. He provides no legal support for this contention and no

explanation why consideration of such evidence would not be barred by

Pinholster, 131 S. Ct. at 1398. However, we note that our rejection of Mr.

Carter’s claim of improper vouching for Mrs. Tovar should not be construed as a

rejection of his related supplemental claim of prosecutorial misconduct based on

knowing use of false evidence under Napue v. Illinois, 360 U.S. 264 (1959).

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Trial Transcript at 1386. Mr. Carter contends this amounted to an

unconstitutional comment on his right to remain silent.

The Fifth Amendment prohibits “comment by the prosecution on the

accused’s silence . . . that such silence is evidence of guilt.” Griffin v. California,

380 U.S. 609, 615 (1965). This includes suggestions that a defendant’s silence is

indicative of guilt. Portuondo v. Agard, 529 U.S. 61, 69 (2000). Mr. Carter relies

on Battenfield v. Gibson, 236 F.3d 1215 (10th Cir. 2001), for the argument that,

where a prosecutor notes the absence of testimony on a matter that could be

explained “only by the accused,” the prosecutor unconstitutionally comments on a

defendant’s choice not to testify. Aplt. Br. 155.

As an initial matter, Mr. Carter cannot be granted relief under § 2254(d)

unless the state court decision is contrary to, or an unreasonable application of,

Supreme Court—not appellate court—decisions. Lopez v. Smith, 135 S. Ct. 1, 2

(2014). But even if Battenfield was clearly established Supreme Court law, it

would not warrant relief. The prosecutor’s comments do not touch on a matter

that could be explained only by Mr. Carter. Testimony suggesting coercion could

have come from other sources, including Lt. Pierpont and Sgt. Cunningham. The

fact that the officers “were not inclined to testify to the nature of the coercion,”

Aplt. Br. 154, does not mean that they could not have done so. Thus, we affirm

the district court’s denial of relief.

VI. Confrontation Clause Challenge

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Mr. Carter next contends that his Confrontation Clause rights were violated

when the prosecution introduced transcripts of the Tovars’ trial testimony into

evidence at resentencing. Under Ohio v. Roberts, 448 U.S. 56 (1980), “when a

22 23

hearsay declarant is not present for cross-examination at trial,” the Confrontation

Clause requires a showing that: (1) the declarant is “unavailable”; and (2) the

statement bears adequate “indicia of reliability.” Id. at 66. Mr. Carter contends

both that the Tovars were not “unavailable” and that their testimony did not bear

“sufficient indicia of reliability.”

As discussed above, the Tovars were key witnesses in the guilt phase of

Mr. Carter’s trial. Prior to Mr. Carter’s resentencing in 1992, Lt. Pierpont of the

Provo Police Department was unable to locate the Tovars. He testified at

resentencing that he called the United States Marshals Service, because he knew

they had a warrant out for the Tovars’ arrest, but the Marshals did not know of

the Tovars’ whereabouts. Resentencing Transcript at 49. He testified that he had

checked with the Salt Lake City jail “several years back,” but they had no

information either. He stated he had done “[n]othing” else to locate the Tovars.

Though Mr. Carter also characterizes this argument as a due process

22

challenge, he cites no authority suggesting the Due Process Clause is implicated.

Mr. Carter’s sentence became final in 1995, prior to Crawford v.

23

Washington, 541 U.S. 36 (2004); thus, the Roberts framework applies to his

Confrontation Clause challenge. Whorton v. Bockting, 549 U.S. 406, 417–18

(2007).

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Id. at 50, 52.

The state court held that Utah had made a “reasonable effort” to locate the

Tovars and admitted transcripts of their guilt-phase testimony into evidence. At

sentencing, the prosecutor referenced the Tovars’ testimony to argue Mr. Carter

lacked remorse.

Mr. Carter argued on appeal that the admission of the transcripts violated

his Confrontation Clause rights, and the Utah Supreme Court rejected his

argument. Carter II, 888 P.2d at 645–47. Thus, we again review under the

deferential standards of § 2254(d).

The Supreme Court has never held that the Confrontation Clause applies at

capital sentencing. See Wilson v. Sirmons, 536 F.3d 1064, 1111–12 (10th Cir.

2008) (“[W]e have recently stated that it is ‘far from clear’ whether the

Confrontation Clause even applies at capital sentencing proceedings.” (quoting

United States v. Barrett, 496 F.3d 1079, 1099 (10th Cir. 2007))); United States v.

Brown, 441 F.3d 1330, 1361 n.12 (11th Cir. 2006) (same); United States v. Higgs,

353 F.3d 281, 324 (4th Cir. 2003) (same); Szabo v. Walls, 313 F.3d 392, 398 (7th

Cir. 2002) (“[T]he Supreme Court has held that the Confrontation Clause does not

apply to capital sentencing. It applies through the finding of guilt, but not to

sentencing, even when that sentence is the death penalty.”). Because the Utah

Supreme Court’s decision was not contrary to, or an unreasonable application of,

Supreme Court precedent, we affirm the district court’s denial of relief.

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VII. Mr. Carter’s Confession

Mr. Carter next argues that the admission of his confession violated his

right not to be compelled to be a witness against himself.

Mr. Carter was arrested in Nashville, Tennessee on June 11, 1985. The

police also arrested JoAnne Robins, a woman with three children with whom Mr.

Carter had been living for three weeks. Mr. Carter saw Ms. Robins while they

were in custody and asked about her several times during the course of his

interrogation.

Sgt. Cunningham of the Nashville police interrogated Mr. Carter from

roughly 10:00 am until 3:00 pm June 11 and 10:00 am until 2:30 pm on June 12.

Sgt. Cunningham stated that he gave Mr. Carter his Miranda warnings before both

interrogations and regularly gave him 10–15 minute breaks, during which Mr.

Carter was allowed to smoke, drink water, and use the restroom. On June 12,

around 3:00 pm, Lt. Pierpont of the Provo Police Department, who had traveled to

Nashville, began to interrogate Mr. Carter. After roughly thirty minutes, Mr.

Carter confessed to the murder of Mrs. Olesen.

Lt. Pierpont dictated Mr. Carter’s statement to a typist line by line. Mr.

24

Typist Julie Hoffman’s name—but not her signature—appears on the

24

confession. As discussed above, in 2009 Ms. Hoffman executed a declaration

discussing irregularities in the way Mr. Carter’s confession was recorded. This

evidence was not before the Utah Supreme Court when it resolved Mr. Carter’s

claim; thus, we do not consider it. Pinholster, 131 S. Ct. at 1398.

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Carter had an opportunity to read the statement and make corrections before

signing, but he made none. He acknowledged that the typed statement presented

to the court contained his signature, but he claimed that the statement he actually

signed began differently.

At trial, Mr. Carter moved to suppress his confession on the grounds that it

was coerced. Mr. Carter testified that the detectives threatened that, if he did not

confess, Ms. Robins would go to prison and lose her children. Both detectives

denied using such tactics. Neither detective knew of Mr. Carter’s educational

background or low intelligence.

The trial court admitted the confession, and the Utah Supreme Court

affirmed. Carter I, 776 P.2d at 889–91. Thus, we review under the deferential

standards of § 2254(d).

For a confession to be admissible, the state must prove by a preponderance

of the evidence that the confession was given voluntarily based on “the totality of

all the surrounding circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218,

226 (1973). Relevant factors include the youth, intelligence, and education of the

accused, whether he was read his rights, the “repeated and prolonged nature of the

questioning,” and the use of physical punishment. Id. Ultimately, the proper

inquiry is whether the confession was “the product of an essentially free and

unconstrained choice,” or whether the individual’s “will has been overborne.”

Culombe v. Connecticut, 367 U.S. 568, 602 (1961). Mr. Carter highlights several

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aspects of his interrogation: the “length of confinement,” the “rigor of

questioning,” “Carter’s lack of education and low intellectual functioning,” and

his “concern for Ms. Robins and her children.” He argues that, cumulatively,

these factors show that his will was overborne. We disagree.

Neither of the first two factors support Mr. Carter’s argument. Mr. Carter’s

detention and interrogation were not unusually long. He was questioned for two

periods of roughly four to five hours across two days and given ample breaks

during which he could smoke, use the restroom, and eat. No evidence suggests

that the questioning was unusually rigorous, deceitful, or overbearing.

As to the third factor, Mr. Carter contends “[i]t has been established that

Carter has borderline intellectual functioning.” Aplt. Br. 170. For this

proposition, Mr. Carter once again cites evidence that was not before the Utah

Supreme Court; thus, we cannot consider it. Ryan v. Gonzales, 133 S. Ct. 696,

708 (2013). Even assuming that evidence of Mr. Carter’s low intellectual ability

was before the Utah Supreme Court, no evidence suggests that either of the

detectives were aware of this fact. Mr. Carter’s bare assertion that “Carter’s lack

of education and the intellectual deficiency certainly would have been apparent,”

Aplt. Br. 170, cannot suffice. For “[a]bsent police conduct causally related to the

confession, there is simply no basis for concluding that any state actor has

deprived a criminal defendant of due process of law.” Colorado v. Connelly, 479

U.S. 157, 164 (1986).

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Finally, Mr. Carter suggests that because he was made aware that Ms.

Robins was arrested, his confession was coerced. Mr. Carter relies primarily on

Lynumn v. Illinois, 372 U.S. 528 (1963), for this argument. In Lynumn, the

Court held the defendant’s confession to be involuntary where police informed

her that, if she did not cooperate, she could be sent to jail for ten years and her

two children would be given to strangers. Id. at 531–34. But Mr. Carter’s mere

knowledge of the detention of a woman with whom he had been living for three

weeks has nowhere near the coercive power of an explicit threat to take away a

mother’s children.

Beyond Lynumn, Mr. Carter relies on circuit authorities, pursuant to which

we cannot grant relief under § 2254(d). Glebe v. Frost, 135 S. Ct. 429, 431

(2014) (per curiam). Regardless, the degree of police coercion in these cases was

far greater than anything present here. See, e.g., Ferguson v. Boyd, 566 F.2d 873,

877 (4th Cir. 1977) (prosecutors and police “went to extraordinary lengths to

extract from petitioner a confession” by exploiting relationship between petitioner

and his girlfriend).

For the foregoing reasons, we cannot say that the Utah Supreme Court’s

conclusion that Mr. Carter’s confession was voluntarily given was unreasonable.

VIII. Cumulative Error

Mr. Carter’s final argument is that his conviction and sentence should be

reversed for cumulative error. Cumulative-error analysis “aggregates all errors

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found to be harmless and ‘analyzes whether their cumulative effect on the

outcome of the trial is such that collectively they can no longer be determined to

be harmless.’” United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002)

(quoting United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990) (en

banc)).

In analyzing Mr. Carter’s claim, the district court acknowledged that, given

Mr. Carter’s pending state court claims, “the outcome of a cumulative error

analysis may be different in the future.” Carter, 2012 WL 3964819, at *50.

Nevertheless, it rejected Mr. Carter’s cumulative error claim on the ground that

Mr. Carter established only one error (defective performance of counsel), and Mr.

Carter had not shown that this error had prejudiced him. We agree with the

district court that any cumulative error analysis could be altered by Mr. Carter’s

remaining claims. As such, we think the appropriate course of action is to wait

until those claims are resolved before reviewing Mr. Carter’s claim of cumulative

error. Thus, we vacate the district court’s denial of habeas relief on this ground.

In summary, the district court’s denial of Mr. Carter’s motion to

supplement his initial habeas petition with claims of prosecutorial misconduct and

suppression of evidence based on newly discovered evidence is reversed and

remanded for further proceedings, including a determination whether to grant Mr.

Carter a stay to exhaust these claims in state court. The district court’s denial of

Mr. Carter’s claim of cumulative error is vacated. In all other respects, the

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judgment denying habeas relief is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

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