July 30, 2021 Christopher M. Wolpert Clerk of Court PUBLISH UNITED STATES COURT OF… v. ROBERT POWELL, Warden, Utah State Prison

FILED
United States Court of Appeals
Tenth Circuit
July 30, 2021
Christopher M. Wolpert
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
VON LESTER TAYLOR,
Petitioner - Appellee,
v. No. 20-4039
ROBERT POWELL, Warden, Utah
State Prison,
Respondent - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:07-CV-00194-TC)
Andrew F. Peterson, Assistant Solicitor General (Erin Riley, Assistant Solicitor
General, and Sean D. Reyes, Utah Attorney General, with him on the briefs),
Office of the Utah Attorney General, Salt Lake City, Utah, for Appellant.
Brian M. Pomerantz (Kenneth F. Murray, Phoenix, Arizona, with him on the
brief), Law Office of Brian M. Pomerantz, Carrboro, North Carolina, for
Appellee.
Before TYMKOVICH, Chief Judge, BRISCOE, and MORITZ, Circuit Judges.
TYMKOVICH, Chief Judge.
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Von Lester Taylor and an accomplice, Edward Deli, murdered two unarmed
women who tragically encountered them burglarizing a mountain cabin in
December 1990.
Linae Tiede, Kaye Tiede (her mother), and Beth Potts (her grandmother),
returned to the cabin after a day of shopping in Salt Lake City. When Mr. Taylor
and Mr. Deli encountered the three women, they held them at gunpoint. Linae
then watched Mr. Taylor shoot her mother and heard the shots that killed her
grandmother. When Linae’s father later arrived with her sister, Mr. Taylor shot
him in the head. They left him in the cabin, believing him to be dead. Mr. Taylor
and Mr. Deli then set the cabin on fire and kidnapped Linae and Tricia. Before
more violence could occur, law enforcement stopped the two men following a 911
call from Linae’s father, who survived the shooting.
Mr. Taylor subsequently confessed to shooting both Kaye and Beth. To this
day, Mr. Taylor has never denied that he fired the first shot in the brutal attack
that led to the deaths of the two unarmed women.
Mr. Taylor pleaded guilty to two counts of first degree murder and was
sentenced to death by a jury in Utah state court. He now challenges his
convictions through a petition for federal habeas corpus relief, contending
missteps by his trial attorney caused him to enter a defective guilty plea. But
Mr. Taylor failed to adequately present this claim to Utah’s state courts.
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Generally, such a procedural default would prevent us from considering the claim.
And yet Mr. Taylor argues we should excuse his procedural default lest we
commit a fundamental miscarriage of justice. Despite re-affirming time and again
that he participated in the murders, Mr. Taylor now argues he is “actually
innocent” of them. Thus, he contends we should consider his underlying claims
for habeas relief. But, given these facts, how can he be actually innocent?
Below, Mr. Taylor provided the district court with new ballistics evidence
that calls into question whether he fired the fatal shots in the two murders, even if
he fired some of the shots. Instead, the ballistics evidence indicates the fatal
shots were fired by his accomplice. Based on this evidence, the district court
credited Mr. Taylor’s claim that he was actually innocent of first degree murder
and set aside the procedural bar on considering his claims for relief. In reaching
the merits of Mr. Taylor’s claims for habeas relief, the district court concluded
that his guilty plea was defective due to his trial counsel’s failure to adequately
investigate a possible defense theory that he was culpable only of crimes less
serious than first degree murder. The court therefore granted his petition for
habeas corpus, undoing Mr. Taylor’s thirty-year-old conviction and sentence.
We disagree with the district court’s assessment of Mr. Taylor’s actual
innocence claim. The district court concluded the evidence was inconclusive
about whether Mr. Taylor fired the fatal bullets and he therefore was potentially
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innocent as the principal triggerman. But under Utah law, an accomplice to a
violent felony can be equally liable for first degree murder. The district court
concluded that Mr. Taylor could evade this problem because he did not plead
guilty to “capital murder as an accomplice.” Aplt. App., Vol. XIX at 4812 (Order
and Mem. Decision Granting Evid. Hr’g). Under Utah law, however, principal
and accomplice liability are theories of guilt, not distinct crimes. Mr. Taylor
pleaded guilty to two counts of capital murder—thus, evidence that he committed
the crimes as either a principal or an accomplice would have been adequate to
prove his guilt. And no doubt exists that he would have been convicted of the
murders under at least one of these theories at trial.
Mr. Taylor does not deny he actively participated in the murders. To
answer the question of whether he can be actually innocent of the crime: He
cannot. Mr. Taylor “is not innocent, in any sense of the word.” Herrera v.
Collins, 506 U.S. 390, 419 (1993) (O’Connor, J., concurring). We therefore
reverse the district court’s grant of habeas relief and remand for further
proceedings consistent with this opinion.
I. Background
The meaning of “actual innocence” in the habeas context is very different
from what this phrase means in popular parlance. When invoked as part of a
habeas petition, actual innocence has a very specific meaning and purpose. Thus,
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before describing the facts and proceedings that have led to Mr. Taylor’s current
habeas petition, we provide a brief overview of how a claim of actual innocence
operates within the larger context of federal habeas corpus.
A. The Structure of Habeas Corpus
Contemporary habeas corpus doctrine strikes a delicate balance between
justice and finality. See House v. Bell, 547 U.S. 518, 536 (2006). Habeas corpus
is the tool by which federal courts can correct unjust incarcerations. A
combination of statutory law under the Antiterrorism and Effective Death Penalty
Act and judge-made law, federal habeas corpus serves as the path for prisoners to
challenge both state and federal convictions. But the law makes this pathway
narrow. For instance, we will not consider a petitioner’s claims for relief that
were not adequately presented to state courts. See id.; see also Coleman v.
Thompson, 501 U.S. 722, 750 (1991) (“In all cases in which a state prisoner has
defaulted his federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice.”). This
narrowing function is “based on the comity and respect that must be accorded to
state-court judgments.” House, 547 U.S. at 536.
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Yet, recognizing the justice concerns that also underlie habeas corpus, the
Supreme Court has concluded the door to habeas relief is not always closed
because a petitioner procedurally defaulted his claims. Rather, the Supreme Court
has allowed courts to consider such claims when it is necessary to avoid a
miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (“[T]he
fundamental miscarriage of justice exception seeks to balance the societal
interests in finality, comity, and conservation of scarce judicial resources with the
individual interest in justice that arises in the extraordinary case.”). Courts apply
this miscarriage-of-justice exception when a petitioner can demonstrate that he is
actually innocent of the crime of conviction. In these cases, the petitioner’s claim
of actual innocence does not serve as the basis for granting habeas relief.1
1 Actual innocence can serve at least three functions in a habeas petition.
First, it can be invoked to overcome AEDPA’s statute of limitations. See Doe v.
Jones, 762 F.3d 1174, 1182 (10th Cir. 2014) (“If petitioner does have a
substantial actual innocence claim, . . . the existence of such a claim will serve as
an exception to the AEDPA statute of limitations[.]”). Second, and as is the case
here, actual innocence can be invoked to overcome other procedural bars to a
claim. See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“[A] credible claim
of actual innocence may allow a prisoner to pursue his constitutional claims . . .
on the merits notwithstanding the existence of a procedural bar to relief.”). Third,
the Supreme Court has not foreclosed the possibility that actual innocence could
be invoked as the substantive constitutional claim for habeas relief. See Herrera,
506 U.S. at 417 (“We may assume, for the sake of argument in deciding this case,
that in a capital case a truly persuasive demonstration of actual innocence made
after trial would render the execution of a defendant unconstitutional, and warrant
federal habeas relief if there were no state avenue open to process such a claim.”
(internal quotation marks omitted)).
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Instead, the claim of actual innocence is joined with a procedurally defaulted
claim to serve as “a gateway through which a habeas petitioner must pass to have
his otherwise barred constitutional claim considered on the merits.” Id. at 315
(internal quotation marks omitted). This exception “is intended for those rare
situations where the State has convicted the wrong person of the crime or where it
is evident that the law has made a mistake.” Beavers v. Saffle, 216 F.3d 918, 923
(10th Cir. 2000) (internal quotation marks omitted; alterations incorporated).
To qualify for the actual innocence exception, the petitioner need not
conclusively demonstrate his innocence. See House, 547 U.S. at 538 (“The
Schlup standard does not require absolute certainty about the petitioner’s guilt or
innocence.”). Rather, “the petitioner must show that it is more likely than not that
no reasonable juror would have convicted him in the light of new evidence.”
Schlup, 513 U.S. at 327. Or, “to remove the double negative, that more likely
than not any reasonable juror would have reasonable doubt.” House, 547 U.S.
at 538. This standard requires courts to engage in a counterfactual analysis,
determining whether a jury confronted with all the evidence now known would
still have convicted the petitioner of the crime charged. See Schlup, 513 U.S.
at 329 (“[T]he standard requires the district court to make a probabilistic
determination about what reasonable, properly instructed jurors would do.”).
“The court’s function is not to make an independent factual determination about
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what likely occurred, but rather to assess the likely impact of the evidence on
reasonable jurors.” House, 547 U.S. at 538.
An actual innocence claim must be based on more than the petitioner’s
speculations and conjectures. The gateway claim must “be credible” and requires
“new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Id. at 537 (internal quotation marks omitted). To be “new,”
the evidence need only be evidence that was not considered by the fact-finder in
the original proceedings. See Fontenot v. Crow, __ F.4th __, 2021 WL 2933220,
at *36 (10th Cir. July 13, 2021) (explaining that, under Schlup, “new evidence”
means evidence “newly presented” rather than evidence “newly discovered
through diligence”). When determining whether a petitioner qualifies for the
exception, courts are not “bound by the rules of admissibility that would govern at
trial.” Schlup, 513 U.S. at 327. Instead, we may “consider the probative force of
relevant evidence that was either excluded or unavailable at trial.” Id. at 327–28.
B. Factual and Procedural Background
Mr. Taylor procedurally defaulted his underlying constitutional claim—that
his guilty plea was constitutionally defective based on ineffective assistance of
his trial counsel. He did so by failing to raise the claim in the proper manner
before the Utah state courts. He now attempts to overcome this procedural
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default by arguing he is actually innocent of capital murder based on new
ballistics evidence.
To explain why his claim is procedurally defaulted, we next recount the
relevant factual and procedural history that led to Mr. Taylor’s initial conviction
and efforts to obtain post-conviction relief.
1. The Murders
In December of 1990, the Tiede family was vacationing in a family cabin in
Summit County, Utah, for the holidays. On December 21, the family took an
overnight trip to Salt Lake City to do some Christmas shopping. While the family
was gone, Mr. Taylor and his accomplice Edward Deli broke into the cabin as part
of a series of burglaries. They stayed the night at the cabin.
The family returned the next day. The cabin was located a distance from
the nearest road and recent snow forced the family to use snowmobiles to get
from the road to the cabin. Kaye Tiede, her twenty-year-old daughter Linae, and
Kaye’s elderly mother, Beth Potts, took the snowmobiles from the road and
arrived at the cabin first. Linae was the first to enter the cabin. Mr. Taylor
approached her at gunpoint and asked who else was with her. Linae indicated
Kaye and Beth were. Once Kaye and Beth entered, Mr. Taylor and Mr. Deli held
them at gunpoint. After a short exchange, Linae witnessed Mr. Taylor shoot Kaye
and heard her mother say “I’ve been shot.” Aplt. App., Vol. I at 97. Linae then
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turned away from the violence and did not see what happened next but she heard
the shooting continue. When the shooting ended, Kaye and Beth lay dead on the
floor. Kaye had been shot three times (twice with bullets that went through her
chest and upper torso and once with bird shot pellets that caused small wounds
around her left arm and neck), as had Beth (twice in the chest and once in the
head). It is well-established that on the day of the murders, Mr. Taylor possessed
a .38 special revolver and Mr. Deli a .44 magnum revolver, the bullets from which
were recovered at the scene.
After shooting Kaye and Beth, Mr. Taylor and Mr. Deli tied Linae up and
brought her to one of the cabin’s bedrooms. They told Linae that she would be
coming with them when they left. Linae also testified that Mr. Deli told
Mr. Taylor at one point “we need to reload.” Id., Vol. I at 135. She later
overheard Mr. Taylor telling Mr. Deli that “he needed help with the bodies” to
“throw them over the balcony.” Id. at 101. Finally, she heard Mr. Taylor tell
Mr. Deli that “he had to shoot [one of the women] in the head twice.” Id. Beth
died of a gunshot wound to the head.
About two hours after the initial shooting, Linae’s sister (Tricia) and her
father (Rolf) arrived at the house. Mr. Taylor instructed Mr. Deli to shoot Rolf.
When Mr. Deli hesitated, Mr. Taylor shot Rolf twice in the head and left him in
the cabin, believing him to be dead.
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Mr. Taylor and Mr. Deli then spread gasoline around the cabin and
attempted to set fire to it. The two men then used the family’s snowmobiles to
drive themselves, Linae, and Tricia down to the road to the family’s car. Despite
the two gun shot wounds, Rolf survived. He then made his way down to the road
where he encountered his half brother. The men then contacted the Summit
County Sheriff’s Department. Following a high-speed chase, officers
apprehended Mr. Taylor and Mr. Deli. Linae and Tricia were released unharmed.
Police found the bodies of Kaye and Beth on the cabin’s balcony, covered by a
blanket.
2. The Information and Plea
Mr. Taylor and Mr. Deli were each charged with two counts of capital
homicide,2 attempted homicide, aggravated arson, two counts of aggravated
kidnapping, aggravated robbery, theft, failure to respond to an officer’s signal to
stop, and aggravated assault. For the capital murder charges, the Information
stated that “VON LESTER TAYLOR and EDWARD STEVEN DELI, did
2 In Utah, a homicide “constitutes aggravated murder if the actor
intentionally or knowingly causes the death of another” in one of several
enumerated circumstances. Utah Stat. Ann. § 76-5-202(1). Here, “the
homicide[s] [were] committed incident to one act, scheme, course of conduct, or
criminal episode during which two or more persons were killed[.]” Id.
at § 76-5-202(1)(b). Alternatively, the homicides were committed “incident to
. . . [a] criminal episode during which the actor committed . . . burglary[.]” Id.
at § 76-5-202(1)(d). Aggravated murder is a death-penalty-eligible crime. Id.
at § 76-5-202(3)(a).
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intentionally or knowingly, cause the death of Beth Potts, and the homicide was
committed incident to one act, scheme, course of conduct, or criminal episode
during which two or more persons, to wit: Beth Potts and Kaye Tiede, were
killed.” Aplt. App., Vol. I at 1. The Information contained an identical second
count for the death of Kaye Tiede.
The state held a preliminary hearing to determine whether probable cause
existed to bind the men over for arraignment and trial. At this hearing, attorneys
for Mr. Taylor and Mr. Deli both argued it was not clear who had fired the fatal
shots that killed Kaye and Beth. Nonetheless, the state court concluded that
probable cause existed as to both men. The court believed the evidence was
adequate to show “that each to the other, acted with the mental state required for
the commission of the offenses alleged in the Information, and they each to the
other, solicited, requested, demanded, encouraged or intentionally aided the other
to engage in the conduct which is alleged in the Information.” Id., Vol. III at 552.
Mr. Taylor initially pursued insanity as a defense. During his mental
evaluation, he told the psychiatrist he had committed both murders. See id.,
Vol. XIX at 4803 (Order and Mem. Decision Granting Evid. Hr’g) (When asked
whether he believed himself to be insane, Mr. Taylor responded, “No, but how
can you determine? I shot two people with no motive, out of cold blood, with my
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gun, then with Ed’s.”). After the interview, the examining doctors concluded
Mr. Taylor was legally sane.
The state then offered Mr. Taylor a guilty plea—he would plead guilty to
the two counts of capital murder and, in exchange, the remainder of the charges
against him would be dropped. Although Mr. Taylor’s attorney told Mr. Taylor
that the state’s case against him was strong, his attorney still encouraged him to
proceed to trial. At a hearing on his performance, Mr. Taylor’s counsel provided
his reasons for giving this advice: “This is a capital homicide case. His options
are—worst option is death penalty. As far as I was concerned, it was going to
trial. You didn’t have an option.” Id., Vol. VI at 1244–45. Despite this advice
from his attorney, Mr. Taylor accepted the state’s offer. According to the Utah
Supreme Court, Mr. Taylor chose to plead guilty “because he did not want to put
his family and the victims through a trial and he did not want to testify against
Deli.” State v. Taylor (Taylor I), 947 P.2d 681, 684 (Utah 1997).
The plea agreement listed the crimes as “Criminal Homicide, Murder in the
First Degree as charged in Count[s] I . . . and II.” Aplt. App., Vol I at 18. The
plea then provided a description of each count: “the defendant, Von Lester
Taylor, did intentionally or knowingly cause the death of Beth Potts, and the
homicide was committed incident to one act, scheme, course of conduct, or
criminal episode during which two or more persons . . . were killed.” Id. at 19.
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The second count was the same, simply replacing Beth with Kaye. The plea then
stated, “My conduct, and the conduct of other persons for which I am criminally
liable, that constitute the elements of the crime charged are as follows[,]” and
then described that conduct in the following manner:
On the 22nd day of December, 1990, in Summit County,
State of Utah, I, Von Lester Taylor, in conjunction with
Edward Steven Deli unlawfully entered the cabin
belonging to Rolf Tiede. When Kaye Tiede and Beth
Potts returned to the cabin, I, Von Lester Taylor, and my
co-defendant, Edward Steven Deli, intentionally and
knowingly caused the death of both Kaye Tiede and
Beth Potts by shooting them with firearms.
Id.
Having pleaded guilty, Mr. Taylor then proceeded to the penalty phase of
his proceedings. After hearing testimony and arguments, a jury ultimately
sentenced Mr. Taylor to death for the murders.3
3. Direct Appeal and State Collateral Review
After his sentencing, Mr. Taylor appealed both his guilty plea and sentence
in state court. Mr. Taylor argued his attorney had failed him in two ways: by
misinforming him about what evidence could be used against him at the
sentencing phase and by suffering from conflicts of interest. The trial court held
3 Unlike Mr. Taylor, Mr. Deli elected to proceed to trial. His trial started
after Mr. Taylor had pleaded guilty and ended prior to the start of Mr. Taylor’s
penalty phase. A jury convicted Mr. Deli of second degree murder and sentenced
him to life in prison for his participation in the crimes.
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a hearing at which Mr. Taylor’s attorney testified regarding his representation of
Mr. Taylor. Based on the attorney’s testimony and records of Mr. Taylor’s
proceedings, the Utah Supreme Court affirmed the convictions. See Taylor I, 947
P.2d at 690 (“Taylor cannot show prejudice related to [his attorney’s]
performance . . . [and] Taylor failed to show an actual conflict.”).
Mr. Taylor subsequently sought post-conviction relief in state court. See
Taylor v. State (Taylor II), 156 P.3d 739 (Utah 2007). In his first petition, he
argued that both his trial counsel and appellate counsel had been constitutionally
ineffective. The Utah Supreme Court rejected relief on the ineffective-assistance-
of-trial-counsel claim, reasoning that “[b]ecause Taylor has already challenged
the effectiveness of his trial counsel on appeal, his post-conviction claims that his
trial counsel was ineffective are procedurally barred.” Id. at 746 (citing Utah
Stat. Ann. § 78-35a-106(1)(c) (2002), for the proposition that “[a] defendant is
not eligible for post-conviction relief on any ground that was raised on appeal or
that could have been raised on appeal”). The Utah Supreme Court then rejected
Mr. Taylor’s arguments about his appellate counsel on the merits.
Mr. Taylor then brought a petition for federal habeas corpus relief under
28 U.S.C. § 2254. But, because Mr. Taylor had failed to exhaust a number of his
federal habeas claims before the state court, the federal district court stayed
proceedings for him to return to state court. To cure this defect, Mr. Taylor
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brought a second petition in state court for post-conviction relief asserting thirty
claims for relief. See Taylor v. State (Taylor III), 270 P.3d 471 (Utah 2012). The
Utah Supreme Court denied this petition, treating all of Mr. Taylor’s claims as
procedurally barred.
4. Federal Habeas Proceedings
Having finally exhausted all of his claims for relief in state court,
Mr. Taylor returned to federal court. In 2012, he filed a Second Amended
Petition for habeas relief, raising twenty-six claims. Mr. Taylor invoked actual
innocence as a gateway to overcome the fact that a number of his claims were
procedurally defaulted. To support his actual innocence claim, he moved for an
evidentiary hearing to develop evidence about the circumstances of the murders.
Specifically, he sought to elicit evidence that Mr. Deli had fired the fatal shots
that killed Beth and Kaye. The state opposed this motion, arguing that it was
irrelevant whether Mr. Taylor had fired the fatal bullets. Under the state’s
reasoning, he was guilty of capital murder at least as an accomplice and thus
could not establish his actual innocence.
The district court granted the evidentiary hearing. It rejected the state’s
contention that Mr. Taylor had to establish actual innocence as an accomplice to
qualify for the actual innocence exception. According to the district court,
Mr. Taylor did not have actual notice that he was charged as and pleading guilty
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to “capital murder as an accomplice,” so accomplice liability was beyond the
scope of the actual innocence inquiry. Instead, “[t]he question must be whether
Mr. Taylor can advance his claims that he is actually innocent of the crime to
which he pleaded—capital murder as a principal—not any crime to which he
could have been convicted of had he gone to trial and been put on notice.” Aplt.
App., Vol. XIX at 4812 (Order and Mem. Decision Granting Evid. Hr’g).
At the evidentiary hearing, the parties presented ballistics and medical
forensics evidence. Based on this evidence, the district court concluded that
Mr. Taylor had met his burden of showing actual innocence. Specifically, the
district court found that Mr. Deli had been in possession of the .44 magnum
revolver throughout the shootings.4 And the district court further concluded it
was likely the bullets that killed Kaye and Beth were fired from that gun. Based
on these two facts, the court concluded that “no reasonable juror, conscientiously
following the appropriate instructions requiring proof beyond a reasonable doubt,
would have voted to convict Mr. Taylor of the charges to which he pleaded,
capital murder as a principal.” Id., Vol. XX at 4907 (Findings of Fact and
Conclusions of Law Regarding Claim of Actual Innocence).
4 The district court discounted Mr. Taylor’s confession to the court-
appointed psychiatrist that he had used Mr. Deli’s gun to shoot both victims. The
court determined this confession was “not credible” given Mr. Taylor’s incentive
to convince the psychiatrist he was insane. Aplt. App., Vol. XIII at 4868
(Findings of Fact and Conclusions of Law Regarding Claim of Actual Innocence).
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Having overcome the procedural bar on Mr. Taylor’s constitutional
arguments, the district court proceeded to Mr. Taylor’s substantive argument that
his trial counsel was constitutionally ineffective in advising him about the guilty
plea, rendering his plea constitutionally defective. Mr. Taylor specifically
claimed that his attorney failed to adequately investigate the “no-fatal-shot
theory” and thus failed to advise him of the possibility that Mr. Deli had fired the
shots that killed Kaye and Beth. Thus, Mr. Taylor insisted he forwent trial and
entered the guilty plea without valuable knowledge regarding his actual liability
for the murders. According to Mr. Taylor, his counsel’s failure to advise him on
this theory of innocence was objectively unreasonable and fell below the
constitutional floor for effective assistance of counsel. Mr. Taylor maintains that
had he been provided with the ballistics information, he would have taken his
chances at trial.
The district court granted Mr. Taylor’s habeas petition based on this claim.
It concluded Mr. Taylor’s trial counsel was constitutionally ineffective for failing
to investigate whether Mr. Taylor fired the fatal shots. The court then determined
this failure prejudiced Mr. Taylor because there was a reasonable probability that
he would have chosen to proceed to trial if he had known the strength of the
state’s evidence against him as the principal to the murders. Based on this
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constitutional violation, the district court granted Mr. Taylor’s habeas petition and
overturned his thirty-year-old murder convictions.
II. Analysis
On appeal, the state does not challenge Mr. Taylor’s new evidence. The
state concedes for the sake of argument that Mr. Taylor did not fire the fatal
shots. Rather, the state argues the district court erred as a matter of law in
confining the actual innocence inquiry to Mr. Taylor’s guilt of capital murder as a
principal. According to the state, Mr. Taylor pleaded guilty to the two counts of
capital murder generally, not under a specific theory of liability. Thus, the state
argues that because Mr. Taylor cannot establish actual innocence as both a
principal and an accomplice, his claims for relief remain procedurally defaulted
and we cannot consider them.
We agree with the state. As we explain below, under Utah’s laws regarding
accomplice liability, the state provided Mr. Taylor notice of what crime he was
being charged with and pleading guilty to: capital murder. And Mr. Taylor has
done nothing to prove a reasonable, properly instructed jury more likely than not
would have reasonable doubt about his guilt as an accomplice to the murders.
Thus, we need not reach Mr. Taylor’s claim of ineffective assistance of counsel
leading to a defective guilty plea because it remains procedurally barred.
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Before reviewing the district court’s application of actual innocence to
Mr. Taylor, we address two threshold legal questions which inform our reasoning:
(1) What should the scope of the actual innocence inquiry be in a case involving a
plea bargain? and (2) What is accomplice liability under Utah’s criminal law?
A. Standard of Review
Our review of habeas petitions is “governed by AEDPA’s standards to the
extent that the claims were adjudicated on the merits by [a] . . . state court.”
Douglas v. Workman, 560 F.3d 1156, 1170 (10th Cir. 2009). Under AEDPA, we
may grant a habeas petition that a state court rejected on the merits only if the
state court’s adjudication of the petitioner’s claims 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 “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). But
“[t]he § 2254(d) standard does not apply to issues not decided on the merits by
the state court.” Bland v. Sirmons, 459 F.3d 999, 1010 (10th Cir. 2006).
Thus, “AEDPA’s deferential standard of review for claims decided on the
merits by a state court . . . has no application to a gateway innocence assertion.”
Fontenot, 2021 WL 2933220, at *38. Rather, an actual innocence gateway claim
is a mixed question of law and fact that we review de novo. See id. Even in this
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context, we presume the state court’s finding of facts to be correct. Id. (citing
28 U.S.C. § 2254(e)(1)). “Therefore, when a state court has made a factual
determination bearing on the resolution of a Schlup [actual innocence] issue, the
petitioner bears the burden of rebutting this presumption by clear and convincing
evidence.” Id. (internal quotation marks omitted).
Our decision today also requires us to interpret and apply Utah’s criminal
law. We review de novo the district court’s interpretation of state law. See, e.g.,
Jordan v. Maxim Healthcare Servs., Inc., 950 F.3d 724, 730 (10th Cir. 2020). In
conducting this review, we are bound by the state courts’ interpretation of the
state’s laws. See, e.g., Chapman v. LeMaster, 302 F.3d 1189, 1196 (10th Cir.
2002) (“On habeas review, however, the New Mexico courts’ interpretation of the
state felony murder statute is a matter of state law binding on this court.”
(emphasis omitted)). “If the state’s highest court has not decided an issue, our
task is to predict how it would rule.” Jordan, 950 F.3d at 730–31 (internal
quotation marks omitted). “To guide our prediction, we may consult persuasive
state authority, such as dictum by the state’s highest court and precedential
decisions by a state’s intermediate appellate courts.” Id. (internal quotation
marks omitted; alterations incorporated).
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B. Actual Innocence Based on a Guilty Plea
Mr. Taylor’s convictions resulted from his guilty plea, not a trial. When a
conviction is obtained through a trial, we limit the scope of the actual innocence
inquiry to the crime of conviction. See, e.g., Black v. Workman, 682 F.3d 880,
915 (10th Cir. 2012) (“This exception applies to those who are actually innocent
of the crime of conviction and those ‘actually innocent’ of the death penalty (that
is, not eligible for the death penalty under applicable law).” (emphasis added)).
Our analysis expands when reviewing an actual innocence claim by a
petitioner who was not convicted by a jury, but who rather pleaded guilty before
trial. The Supreme Court has made clear that a petitioner invoking actual
innocence as to a guilty plea still has to prove his innocence of the charge to
which he pleaded guilty—namely, the crime of conviction. Bousley v. United
States, 523 U.S. 614 (1998). Furthermore, “[i]n cases where the Government has
foregone more serious charges in the course of plea bargaining, petitioner’s
showing of actual innocence must also extend to those charges.” Id. at 624. The
Supreme Court’s holding in Bousley prevents a petitioner from artificially
narrowing the scope of the actual innocence inquiry through plea bargaining.
Still, the Court in Bousley also made clear that the actual innocence inquiry
does not extend to any conceivable crimes the state could have charged but
decided not to. For example, in Bousley, the government charged Bousley with
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using a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c).
But when Bousley brought a habeas petition and invoked the actual innocence
gateway to overcome a procedural default, the government argued he had to
“demonstrate that he is actually innocent of both ‘using’ and ‘carrying’ a
firearm[.]” Id. (emphasis added). The Court disagreed. It explained Bousley did
not need to demonstrate actual innocence of carrying the firearm—a separate
crime under § 924(c)—because his “indictment charged him only with ‘using’
firearms” and there was “no record evidence that the Government elected not to
charge petitioner with ‘carrying’ a firearm in exchange for his plea of guilty.” Id.
Here, the state did not forego any more serious charges in the midst of plea
bargaining with Mr. Taylor. So, in assessing Mr. Taylor’s actual innocence claim,
the actual innocence inquiry is limited to his liability for the crime of conviction:
two counts of capital murder.
C. Accomplice Liability Under Utah Law
Given that the actual innocence inquiry is limited to the capital murder
charges, the crux of Mr. Taylor’s actual innocence claim hinges on how Utah
understands accomplice liability. Mr. Taylor contends the state had to
specifically charge him, and he had to specifically plead guilty as, an accomplice
for accomplice liability to be relevant in the Schlup actual innocence inquiry.
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Under Utah law there are two different ways of committing the same
substantive crime. First, the defendant could satisfy all the elements of the crime
himself. This is principal liability. See In re D.B., 289 P.3d 459, 465 (Utah
2012). Alternatively, the defendant could still be guilty of the substantive crime
even if someone else directly commits the offense. Utah law makes it clear that
“[e]very person, acting with the mental state required for the commission of an
offense who directly commits the offense, who solicits, requests, commands,
encourages, or intentionally aids another person to engage in conduct which
constitutes an offense shall be criminally liable as a party for such conduct.”
Utah Stat. Ann. § 76-2-202. This is accomplice liability. See In re D.B., 289
P.3d at 465.
Accomplice liability applies when two conditions are met. First, the
defendant must “have the intent that the underlying offense be committed.” State
v. Briggs, 197 P.3d 628, 632 (Utah 2008). Second, the defendant must have
engaged in one of the enumerated acts from the accomplice liability statute—that
is, soliciting, requesting, commanding, encouraging, or intentionally aiding.
In Utah, accomplice liability is not a separate crime with different
elements. See State v. Gonzales, 56 P.3d 969, 972 (Utah Ct. App. 2002)
(“[C]onviction of accomplice and principal liability do not require proof of
different elements or proof of different quality.”). Rather, it is a separate theory
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supporting liability of the charged crime. See Briggs, 197 P.3d at 632.
Accomplice liability, to be sure, “requires conduct different from direct
commission of an offense[.]” In re D.B., 289 P.3d at 465. Although proving
someone is liable as an accomplice may look quite different from proving he is
liable as a principal, “[i]t is well settled that accomplices incur the same liability
as principals.” Id. at 471 (quoting Gonzalez, 56 P.3d at 972). Principal liability
and accomplice liability are two means of committing the same substantive
crime.5
Given that accomplice liability is a theory of guilt rather than a distinct
crime, the state need not provide the same level of notice as when it charges a
defendant with a substantive crime. The state does not have to identify all
possible theories of guilt it intends to pursue at trial in the Information. See
Gonzales, 56 P.3d at 972 (“We find it unreasonable to require the State to give
5 Another federal court recently denied a habeas petition involving a
similar state accomplice liability law. See Hallman v. Brittain, No. 17-4604, 2020
WL 1875603, at *4 (E.D. Pa. April 15, 2020) (“Under [Pennsylvania’s accomplice
liability law], the prosecution here could have lawfully proven Petitioner’s guilt
on the robbery charge by showing that he was either the principal or an
accomplice. It was not required to separately charge him as both principal and
accomplice.”). Under Pennsylvania law, a person is an accomplice if the state
proves “(a) that the defendant had the intent of promoting or facilitating the
commission of the offense, and (b) that the defendant solicited, commanded,
encouraged, or requested the other person to commit it or aids/attempts to aid the
other person in planning or committing it.” Id. at *3 (quoting Pa. Suggested
Standard Criminal Jury Instructions § 8.306(A)(1)).
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notice, at a stage as early as the filing of an information, of all possible theories
that might arise, including those that do not become part of the State’s case.”). In
fact, a criminal defendant charged with a substantive crime already has notice that
accomplice liability could be on the table at trial. See In re D.B., 289 P.3d at 471
(“[A] person charged with a crime as a principal has adequate notice of the
possibility of accomplice liability being raised at trial.” (emphasis omitted;
alteration incorporated) (quoting Gonzales, 56 P.3d at 972)).
Still, if the state intends to pursue a theory of accomplice liability, it must
give the defendant notice of this intention sometime prior to the close of trial.
See In re D.B., 289 P.3d at 471. “Charging an individual as a principal, standing
alone, does not provide adequate notice that the State is actually pursuing an
accomplice liability theory.” Id. The state cannot simply spring a new theory of
guilt on the defendant when instructing the jury at the end of trial. As the Utah
Supreme Court has explained,
a defendant may receive constitutionally adequate notice
that he is facing accomplice liability in several ways.
The simplest way for the State to provide adequate
notice is by actually charging the defendant as an
accomplice. The state may also notify a defendant of
potential accomplice liability through presentation of
adequate evidence at any time prior to the close of
evidence at trial.
Id. But simply because the state can explain it is pursuing a theory of accomplice
liability in the initial information does not mean it must. And it certainly does not
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mean that accomplice liability is a separate crime which requires a specific, stand-
alone charge. See Gonzales, 56 P.3d at 972 (explaining that accomplice liability
is not a separate offense from principal liability); see also Briggs, 197 P.3d at 632
(explaining “the State relied upon accomplice liability as a theory for convicting
[the defendant] of the crimes included in the information, and not as a separate
offense” (emphasis added)).
D. Application
Here, Mr. Taylor claims his trial counsel was ineffective for failing to
investigate and advise him on the “no-fatal-shot” defense. But Mr. Taylor failed
to adequately present this claim in state court, meaning it is procedurally
defaulted. So, we will not consider this constitutional claim unless Mr. Taylor
can establish he qualifies for an exception to the bar on considering procedurally
defaulted claims. Mr. Taylor argues, and the district court agreed, that Mr. Taylor
overcame this procedural bar because he is actually innocent of his crime of
conviction—capital murder as a principal.
Our review begins and ends with Mr. Taylor’s actual innocence claim.
Mr. Taylor was charged with capital murder. Neither the Information nor the plea
agreement specified a particular theory of liability, nor did they have to. The
actual innocence inquiry extends beyond Mr. Taylor’s guilt as a principal to his
guilt as an accomplice. This puts an end to Mr. Taylor’s actual innocence
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argument because he has not argued that he is actually innocent as an accomplice
to capital murder. Nor could he. The evidence clearly establishes that Mr. Taylor
intended to cause the deaths of Kaye Tiede and Beth Potts and intentionally aided
Mr. Deli to that end.
1. Accomplice Liability
The district court limited the actual innocence inquiry to Mr. Taylor’s
liability as a principal. The court reasoned that “[t]he Information did not charge
Mr. Taylor with accomplice liability. Nothing in the Statement of Defendant or
plea colloquy mentions accomplice liability. And, of course, no trial occurred.”
Aplt. App., Vol. XIX, at 4810–11 (Order and Mem. Decision Granting Evid.
Hr’g). Thus, the district court concluded that “[a]s a matter of law, Mr. Taylor
did not plead guilty to accomplice liability.” Id. at 4811.
Mr. Taylor adopts the district court’s reasoning and expands on it in
responding to the state’s appeal.
He first argues that extending the actual innocence inquiry to accomplice
liability would raise constitutional concerns. The Sixth Amendment requires that
all criminal defendants “be informed of the nature and cause of the accusation”
against them. U.S. Const., amend. VI. Here, the state never specifically informed
Mr. Taylor that he was being charged as an accomplice to the murders, and he
never pleaded guilty to capital murder as an accomplice. Thus, he contends that
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extending the actual innocence inquiry to accomplice liability now would violate
the Sixth Amendment’s guarantee of notice regarding charged crimes. Mr. Taylor
argues that because the state did not charge him as an accomplice in the first
instance, it missed its chance. All the state’s arguments about accomplice
liability exist in the realm of “would’ve, could’ve, should’ve.” Aple. Resp. Br.
at 35. Based on the limits of the charging documents and plea agreement,
Mr. Taylor maintains we are required by the Constitution to limit our actual
innocence inquiry to his liability as a principal to capital murder.
Second, Mr. Taylor insists that assessing his potential liability as an
accomplice as part of the actual innocence inquiry would conflict with Schlup.
According to Mr. Taylor, considering accomplice liability at this stage would
require us to speculate about what theories of guilt the state would have pursued
at trial if Mr. Taylor had not pleaded guilty. Mr. Taylor maintains that such
speculation is inappropriate under Schlup. See id. at 34 (“Under Schlup, the mere
existence of sufficient evidence that could possibly convict Taylor of a different
offense than his offense of conviction is irrelevant.” (emphasis in original)). So,
forcing him to prove his actual innocence as an accomplice requires more than is
necessary to qualify for the Schlup gateway.
In making both of these arguments, Mr. Taylor relies on his theory that
“capital murder as an accomplice” is a separate crime under Utah law that must be
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specifically charged in the information. But in doing so, he misconstrues Utah’s
law on accomplice liability. It is not a separate crime that needs to be charged
separately. See Gonzales, 56 P.3d at 972. It is a different theory of liability
available to the state leading up to and throughout trial to prove the defendant’s
guilt of the underlying substantive offense. Only the substantive crime, not the
state’s theory of the defendant’s guilt, must be included in the information.
Utah argues in the alternative that the information and plea agreement
contained specific language that gave Mr. Taylor adequate notice the state was
charging him as an accomplice. Again, because accomplice liability is not a
separate crime under Utah law, it is not necessary that Mr. Taylor had actual
notice of the state’s intention to treat him as an accomplice prior to trial.
In any event, the plea agreement and proceedings contained language
indicating Mr. Taylor was being treated as both a principal and an accomplice to
the murders. The plea agreement explicitly stated, “My conduct, and the conduct
of other persons for which I am criminally liable, that constitute the elements of
the crime charged are as follows[.]” Aplt. App., Vol. I at 19 (emphasis added).
The plea then described the factual basis for the crime: “When Kaye Tiede and
Beth Potts returned to the cabin, I, Von Lester Taylor, and my co-defendant,
Edward Steven Deli, intentionally and knowingly caused the death of both Kaye
Tiede and Beth Potts by shooting them with firearms.” Id. (emphasis added).
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Furthermore, at the preliminary hearing, the judge explained that probable cause
existed to continue holding Mr. Taylor based on accomplice liability. In doing so,
his language reflected Utah’s statute on accomplice liability: “each [defendant] to
the other, acted with the mental state required for the commission of the offenses
alleged in the Information, and they each to the other, solicited, requested,
demanded, encouraged or intentionally aided the other to engage in the conduct
which is alleged in the Information.” Id., Vol. III at 552.
Thus, applying the actual innocence inquiry to Mr. Taylor’s guilt as an
accomplice conflicts with neither the Constitution nor Schlup. Mr. Taylor was
adequately and accurately “informed of the nature and the cause of the
accusation” against him. U.S. Const., amend. VI; see also Cole v. Arkansas,
333 U.S. 196, 201 (1948) (“No principle of procedural due process is more clearly
established than the notice of the specific charge, and a chance to be heard in a
trial of the issues raised by that charge, if desired, are among the constitutional
rights of every accused in a criminal proceeding in all courts, state or federal.”
(emphasis added)). And nothing about such an application of the actual
innocence theory would conflict with Schlup, which requires proof that the
defendant is innocent of the crime of conviction. See Black, 682 F.3d at 915
(“This exception applies to those who are actually innocent of the crime of
conviction[.]” (emphasis added)).
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Here, the Information charged Mr. Taylor with various crimes, including
two counts of capital murder. Mr. Taylor pleaded guilty to these two charged
crimes. Nothing more, nothing less.6 To prove capital murder, the state must
demonstrate Mr. Taylor intentionally or knowingly caused the death of another in
certain circumstances—here, that the homicide was committed incident to one
criminal episode during which two or more persons were killed or a criminal
episode during which the defendant committed burglary. See Utah Stat. Ann.
§ 76-5-202. Mr. Taylor must demonstrate his actual innocence as to this
substantive crime to overcome the procedural bar on his underlying claims for
relief. But, under Utah law, there are two different ways he could have been
found guilty of the capital murders. The state could have established his guilt of
these crimes either through evidence of his conduct as a principal or as an
accomplice. The state therefore could prove he directly committed the murders or
that he “solicit[ed], request[ed], command[ed], encourag[ed], or intentionally
6 Mr. Taylor also insists it is impossible to plead guilty to both principal
and accomplice liability. He cites a Utah Supreme Court case, State v. Loveless,
232 P.3d 510 (Utah 2010), to support this argument. But Loveless does not stand
for this proposition. In Loveless, the defendant was charged in a single count
with two alternative substantive crimes. The charges were silent as to liability.
In that instance, when a single count contains alternative substantive crimes, the
prosecutor is “at risk that the defendant will plead guilty as charged to one of the
offenses and thereby eliminate the alternative offense contained in the same
count.” Id. at 513. Again, accomplice liability is not a separate crime.
Mr. Taylor pleaded guilty to a single crime, capital murder, which can be
committed in different ways.
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aid[ed] another person to” commit the act. In re D.B., 289 P.3d at 465 (quoting
Utah Code Ann. § 76-2-202). Mr. Taylor cannot side-step proving his actual
innocence as an accomplice simply because he ended the process through a plea
agreement.
Unlike the government in Bousley, the state of Utah is not asking
Mr. Taylor to prove his innocence of an uncharged crime. Rather, the state
correctly articulates what is necessary in all actual innocence cases: the petitioner
must prove his innocence of the crime of conviction. Here, Mr. Taylor could
have committed the capital murders as either a principal or an accomplice.7 Thus,
he must establish his actual innocence under both theories of liability to qualify
for Schlup’s gateway for overcoming a procedural default.
7 We are not saying a habeas petitioner invoking the actual innocence
exception must prove he is innocent of any possible offense he could have been
charged with for his conduct. In Bousley, the Supreme Court clearly foreclosed
this understanding of Schlup. See Bousley, 523 U.S. at 624 (explaining the
petitioner needed to prove his actual innocence only as to crimes charged in the
indictment and more serious charges the government forwent in plea bargaining).
All we conclude here is that under Utah law, principal liability and accomplice
liability are two theories of liability that can each be used to prove guilt of the
same crime. When a criminal defendant pleads guilty to a substantive crime and
later claims actual innocence, he must demonstrate his innocence under both
theories.
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2. Actual Innocence Counterfactual
Now that we have determined the scope of the actual innocence inquiry, we
evaluate whether Mr. Taylor has demonstrated he is actually innocent of the two
charged counts of capital murder. To do so, we must rewind the tape thirty years
and imagine a counterfactual scenario about what would have happened if
Mr. Taylor had gone to trial on the two capital murder charges. We must
determine what “reasonable, properly instructed jurors” would have done in light
of all the evidence—including the petitioner’s newly proffered evidence—in this
alternate universe. Schlup, 513 U.S. at 329. We will apply the actual innocence
gateway only if it is “more likely than not” that these jurors “would have
reasonable doubt” about whether Mr. Taylor committed capital murder. House,
547 U.S. at 538.
In undertaking Schlup’s probabilistic inquiry, we bear several things in
mind. The question must be what a jury would do with the new evidence, not
what we would do. See House, 547 U.S. at 538. While the court has a
responsibility to confine the actual innocence inquiry to the relevant crimes, it
must make the actual innocence determination based on what “reasonable,
properly instructed jurors would do.” Schlup, 513 U.S. at 329. And because we
look to this reasonable, properly instructed jury, we also will not speculate about
whether Mr. Taylor may have drawn a particularly lenient jury.
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Furthermore, in making the actual innocence assessment, we do not blind
ourselves to what would have happened if the case had gone to trial. We will not
limit the state’s theories of guilt in the actual innocence inquiry because the state
had not yet been forced to articulate what theories of guilt it would advance in
trying the case. As long as the state is not seeking to force the petitioner to prove
his innocence of crimes he was never charged with, we can now consider the
state’s various theories of the case when determining what a reasonable jury
would do. We therefore determine how a reasonable, properly instructed jury
would have viewed Mr. Taylor’s two counts of capital murder, bearing in mind
the different theories of guilt the state could have pursued at trial.
The state does not challenge any of the district court’s factual findings
regarding the ballistics evidence. The district court concluded, and the state
concedes for the sake of this appeal, that Mr. Taylor has demonstrated his actual
innocence as a principal to the capital murders. Thus, we focus our inquiry solely
on whether Mr. Taylor has demonstrated his actual innocence to capital murder as
an accomplice.
So, we ask: would any reasonable, properly instructed juror have had
reasonable doubt as to Mr. Taylor’s guilt for the capital murders as an
accomplice? As a reminder, to prove accomplice liability the state must show the
defendant intended that the crime be committed and also solicited, encouraged,
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helped, or intentionally aided the principal in the commission of the crime. See
Briggs, 197 P.3d at 632.
The state argues that Mr. Taylor’s “guilt as an accomplice is well
established by the overwhelming and uncontested evidence.” Aplt. Op. Br. at 36.
The state is correct. The parties do not dispute that Mr. Taylor intended the
deaths of the two victims. And the record makes clear that he intentionally aided
Mr. Deli in committing the crime. To be sure, it is not enough if Mr. Taylor
simply “assist[ed] someone who committed murder[.]” State v. Grunwald, 478
P.3d 1, 16 (Utah 2020) (emphasis in original). He must have “assist[ed] someone
to commit murder.” Id. (emphasis in original). That is precisely what Mr. Taylor
did here. The facts are well established. Linae witnessed and then testified that
Mr. Taylor fired his gun first, shooting Kaye. Later, Mr. Deli told Mr. Taylor
they needed to reload their guns, an indication that both guns had been emptied
during the shooting. Mr. Taylor subsequently told Mr. Deli he had shot one of the
victims in the head twice. Mr. Taylor then asked for Mr. Deli’s help moving the
bodies, and the men moved the bodies to the cabin’s balcony, covering the bodies
with a blanket. After Rolf Tiede arrived, Mr. Taylor instructed Mr. Deli to shoot
Rolf. When Mr. Deli did not, Mr. Taylor shot him twice. Finally, Mr. Taylor
attempted to set the house on fire while the bodies of the two women remained on
the cabin’s deck.
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This is accomplice liability of the clearest kind. See State v. Comish, 560
P.2d 1134, 1136 (Utah 1977) (“[A]n ‘accomplice’ is one who participates in a
crime in such a way that he could be charged and tried for the same offense.”);
see also State v. Apodaca, 448 P.3d 1255, 1269 (Utah 2019) (affirming conviction
under accomplice liability theory where state presented evidence that the
defendant “actively and intentionally planned, participated in, and attempted to
cover up” a robbery). Mr. Taylor fired the first shot. He then fully participated
in and tried to cover up the murders. No reasonable juror could have heard this
evidence and harbored doubts about Mr. Taylor’s liability as an accomplice to the
two counts of capital murder.8
Because Mr. Taylor cannot establish his actual innocence of capital murder,
our analysis ends. The constitutional claim on which the district court granted
relief was procedurally defaulted, and Mr. Taylor has not provided us with any
method to overcome the bar on considering such a claim.
III. Conclusion
Thirty years after participating in the murders of Kaye Tiede and Beth Potts, new
ballistics evidence indicates Mr. Taylor may not have fired the fatal shots. Based
8 In prior cases, we have concluded that an actual innocence claim fails
where the petitioner’s argument goes “to legal innocence, as opposed to factual
innocence.” Beavers, 216 F.3d at 923. The parties did not brief, and so we do
not decide, whether the distinction between principal and accomplice liability
goes to legal innocence as opposed to factual innocence.
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on this evidence, Mr. Taylor argues that this new evidence qualifies him for the
actual innocence exception so that we can consider his underlying constitutional
claims for habeas relief. But Mr. Taylor has not demonstrated that applying the
well-established procedural default rules would result in a fundamental
miscarriage of justice. Overturning the convictions now would be the
fundamental miscarriage of justice. Mr. Taylor cannot qualify for the actual
innocence exception based upon a technical parsing of the different theories of
guilt a state could pursue. His actual innocence of capital murder as a principal
does not absolve him of the substantive crime of capital murder under Utah law.
He must also prove his actual innocence as an accomplice. Mr. Taylor failed to
do so. We accordingly REVERSE the district court’s grant of habeas corpus
relief and REMAND for further proceedings consistent with this opinion.
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No. 20-4039, Taylor v. Powell
BRISCOE, Circuit Judge, concurring.
I fully agree with the majority that Mr. Taylor’s actual innocence gateway claim
lacks merit. I write separately to emphasize three key points: (1) Taylor’s actual
innocence gateway claim is inconsistent with basic principles of Utah state criminal law;
(2) the record establishes that Taylor received both constructive and actual notice of the
possibility that the State could pursue a theory of accomplice liability on the two
aggravated murder charges; and (3) the evidence overwhelmingly establishes that Taylor
participated in, and was arguably the driving force behind, the two fatal shootings, and
thus he is unquestionably subject to accomplice liability for the two murders.
Taylor’s actual innocence gateway claim is inconsistent with basic
principles of Utah state criminal law
Section 76-5-201 of the Utah Criminal Code states, in pertinent part, that “a
person commits criminal homicide if the person intentionally, knowingly, recklessly,
with criminal negligence, or acting with a mental state otherwise specified in the statute
defining the offense, causes the death of another human being . . . .” Utah Code Ann.
§ 76-5-201(1)(a). Section 76-5-201 also sets out the following types of criminal
homicide: “aggravated murder, murder, manslaughter, child abuse homicide, homicide by
assault, negligent homicide, or automobile homicide.” Utah Code Ann. § 76-5-201(2).
Taylor was charged by information with two counts of criminal homicide,
specifically aggravated murder, in violation of Utah Code Ann. § 76-5-202(1)(b) and/or
(d). Those statutory provisions state as follows:
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2
(1) Criminal homicide constitutes aggravated murder if the actor intentionally
or knowingly causes the death of another under any of the following
circumstances:
* * *
(b) the homicide was committed incident to one act, scheme, course of
conduct, or criminal episode during which two or more persons were killed,
or during which the actor attempted to kill one or more persons in addition
to the victim who was killed;
* * *
(d) the homicide was committed incident to an act, scheme, course of
conduct, or criminal episode during which the actor committed or
attempted to commit aggravated robbery, robbery, rape, rape of a child,
object rape, object rape of a child, forcible sodomy, sodomy upon a child,
forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a
child, child abuse as defined in Subsection 76-5-109(2)(a), or aggravated
sexual assault, aggravated arson, arson, aggravated burglary, burglary,
aggravated kidnapping, or kidnapping, or child kidnapping . . . .
Utah Code Ann. § 76-5-202(1)(b), (d).
Chapter 2 of the Utah Criminal Code, entitled “Principles of Criminal
Responsibility,” expressly recognizes the concepts of principal liability and accomplice
liability for criminal offenses. Specifically, § 76-2-202 of the Utah Criminal Code,
entitled “Criminal responsibility for direct commission of offense or for conduct of
another,” states:
Every person, acting with the mental state required for the commission of
an offense who directly commits the offense, who solicits, requests,
commands, encourages, or intentionally aids another person to engage in
conduct which constitutes an offense shall be criminally liable as a party for
such conduct.
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Utah Code Ann. § 76-2-202.1
The Utah Supreme Court has held, based upon the language of § 76-2-202, that
“[t]o show that a defendant is guilty under accomplice liability, the State must show that
an individual acted with both the intent that the underlying offense be committed and the
intent to aid the principal actor in the offense.” State v. Briggs, 197 P.3d 628, 631-32
(Utah 2008). The Utah Supreme Court explained in Briggs that “[a]n accomplice will be
held criminally responsible to the degree of his own mental state, not that of the
principal.” Id. at 632. Thus, an accomplice must have both “the intent that the
underlying offense be committed” and “the intent to aid.” Id. Notably, and key to our
analysis in this case, the Utah Supreme Court stated “that the nature of accomplice
liability makes it impossible for the State to charge an individual with accomplice
1 Chapter 2 also includes a “Definitions” section that states, in pertinent part:
A person engages in conduct:
(1) Intentionally, or with intent or willfully with respect to the nature of his
conduct or to a result of his conduct, when it is his conscious objective
or desire to engage in the conduct or cause the result.
(2) Knowingly, or with knowledge, with respect to his conduct or to
circumstances surrounding his conduct when he is aware of the nature of
his conduct or the existing circumstances. A person acts knowingly, or
with knowledge, with respect to a result of his conduct when he is aware
that his conduct is reasonably certain to cause the result.
Utah Code Ann. § 76-2-103(1)-(2).
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liability standing alone.” Id. And the Utah Court of Appeals subsequently explained that
“[a]ccomplice liability . . . is not an independent crime.” State v. Melancon, 339 P.3d
151, 158 (Utah Ct. App. 2014).
In State v. Gonzales, 56 P.3d 969 (Utah Ct. App. 2002), the Utah Court of Appeals
rejected a defendant’s claim “that due process required the State to provide notice in the
information of the State’s intention to pursue an accomplice liability theory at trial.” Id.
at 971. In doing so, the Utah Court of Appeals noted that “Rule 4(b) of the Utah Rules of
Criminal Procedure requires only that an information ‘charge the offense for which the
defendant is being prosecuted by using the name given to the offense by common law or
by statute or by stating in concise terms the definition of the offense sufficient to give the
defendant notice of the charge.’” Id. at 972 (quoting Utah R. Crim. P. 4(b)). The Utah
Court of Appeals in turn rejected the notion “that accomplice liability is a separate
offense from principal liability such that it would require specific notice.” Id. The Utah
Court of Appeals noted “[i]t [wa]s well settled that accomplices incur the same liability
as principals,” and, consequently, “a person charged with a crime has adequate notice of
the possibility of accomplice liability being raised at trial because conviction of
accomplice and principal liability do not require proof of different elements or proof of
different quality.” Id. (citing Utah Code Ann. § 76-2-202 and State v. Comish, 560 P.2d
1134, 1136 (Utah 1977)).
In State v. Blair, 868 P.2d 802 (Utah 1993), the Utah Supreme Court addressed the
issue of accomplice liability in the course of addressing a defendant’s appeal from the
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denial of his motion to withdraw his guilty plea. The defendant and a codefendant were
charged with first degree murder. Prior to and shortly after the preliminary hearing, the
defendant told another inmate, a deputy county sheriff, and the prosecutor that he was the
one who shot the victim in the course of robbing him. Not long after the preliminary
hearing, the defendant changed his story and told the prosecutor that it was his
codefendant who was actually responsible for shooting the victim, and that the defendant
simply assisted in disposing of the victim’s body after the shooting. Then, approximately
three weeks later, the defendant changed course again, pleaded guilty to the charge and,
in doing so, informed the trial court that he was responsible for shooting the victim.
Eleven and a half years later, the defendant moved to withdraw his guilty plea, reverting
again to his claim that he was not the shooter. The defendant asserted that his
codefendant shot the victim and that he “agreed to stay with his plea because he falsely
believed, based on his attorney’s representations, that he could be held liable for the
crime just by being at the crime scene even though he professed no prior knowledge that
[the codefendant] intended to kill [the victim].” Id. at 806. The trial court denied his
motion and the defendant appealed to the Utah Supreme Court. The Utah Supreme Court
affirmed the trial court’s ruling, noting “that a jury could have determined that” the
defendant “was guilty of first degree murder as an accomplice even if he did not pull the
trigger.” Id. at 807. Consequently, the Court agreed with the trial judge’s conclusion that
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the defendant failed to establish “that he [wa]s an innocent man who . . . [pleaded] guilty
to first degree murder.”2 Id.
In State ex rel. D.B. v. State, 289 P.3d 459 (Utah 2012), the Utah Supreme Court
addressed the timing of the notice of potential accomplice liability when the defendant
was originally charged solely as a principal but was later “adjudicated delinquent as an
accomplice.” Id. at 471. Quoting with approval from the Utah Court of Appeals’
decision in Gonzales, the Utah Supreme Court noted that because “‘accomplices incur the
same liability as principals,’” even “‘a person charged with a crime [as a principal] has
adequate notice of the possibility of accomplice liability being raised a trial.’” Id.
(quoting Gonzales, 56 P.3d at 969) (emphasis added by Utah Supreme Court). As for
“the question of what notice is constitutionally sufficient before the State may actually
pursue accomplice liability,” the Utah Supreme Court held “that the Sixth Amendment is
satisfied when a defendant (1) receives adequate notice that the State is pursuing
accomplice liability and (2) the State has not affirmatively misled the defendant.” Id.
The Utah Supreme Court in turn held that “[c]harging an individual as a principal,
standing alone, does not provide adequate notice that the State is actually pursuing an
accomplice liability theory.” Id. “But,” the Court held, “a defendant may receive
constitutionally adequate notice that he is facing accomplice liability in several ways.”
2 Taylor’s claim of actual innocence is strikingly similar, not in a factual sense but
rather in a legal sense, to the actual innocence claim asserted by the defendant in Blair.
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Id. “The simplest way for the State to provide adequate notice,” the Court held, “is by
actually charging the defendant as an accomplice.” Id. “The state may also,” the Court
held, “notify a defendant of potential accomplice liability through presentation of
adequate evidence at any time prior to the close of evidence at trial.” 3 Id. But, the Court
held, “development of an accomplice liability theory after the close of evidence
eliminates a defendant’s ability to prepare his defense and present evidence relating to the
accomplice liability theory” and “therefore fails to provide constitutionally adequate
notice.” Id. at 472 (emphasis in original).
Considering this recited Utah statutory and case law as a whole, the following
conclusions can be drawn regarding Taylor’s case and the actual innocence gateway
claim that he now asserts. First, the State’s information, at a minimum, effectively placed
Taylor on notice that the State, at trial, could attempt to prove Taylor guilty of the two
counts of aggravated murder as either an accomplice and/or as a principal. Second, had
Taylor not pleaded guilty and instead proceeded to trial, the State almost certainly, based
upon its arguments at the preliminary hearing, would have pursued both theories, at least
if Taylor had actually pursued the defense he now asserts that his trial counsel should
have pursued, i.e., that Taylor was not directly responsible for firing the fatal shots.
Third, had Taylor presented evidence at trial suggesting that Deli, rather than he, fired the
3 The Utah Supreme Court cited with approval a New Jersey Supreme Court case
that held a defendant received notice of potential accomplice liability through his own
testimony. 289 P.3d at 471 (citing State v. Mancine, 590 A.2d 1107, 1120 (N.J. 1991)).
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fatal shots, that evidence would have placed the issue of accomplice liability squarely at
issue.
Constructive and actual notice of the accomplice theory
The district court, in its order granting Taylor’s motion for evidentiary hearing,
concluded that Taylor never received notice of the possibility that the State was pursuing
or might pursue a theory of accomplice liability on the two capital murder charges. I
reject this conclusion. In my view, the record firmly establishes that Taylor received both
constructive and actual notice of the possibility that the State might pursue a theory of
accomplice liability.
As discussed above, the State’s information charging Taylor with two counts of
aggravated murder in violation of Utah Code Ann. § 76-5-202(1)(b) and/or (d) effectively
placed Taylor on notice that the State could, at any point prior to the close of evidence at
trial, attempt to prove Taylor guilty of the two counts of aggravated murder either as an
accomplice or as a principal. And, in fact, Taylor received actual notice of the possibility
of accomplice liability at least as early as the preliminary hearing.
The preliminary hearing in the case was held on January 8, 1991, approximately
two weeks after the information was filed against Taylor and Deli. Both Taylor and Deli
were present along with their counsel. At the conclusion of the State’s evidence, Taylor’s
counsel moved to dismiss Counts I and II of the information. In support of that request,
Taylor’s counsel, as an early preview of the same evidentiary issues that Taylor presently
raises, noted that it was “very difficult to determine which defendant had which weapon,”
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which caliber of bullets actually killed the two victims, and whether “the weapon that
was fired” by Taylor “did in fact cause the death[s].” Aplt. App., Vol. III at 541-42.
More specifically, Taylor’s counsel conceded that the testimony of Linae Tiede
established that Taylor fired his weapon “in the direction of” Kaye Tiede “and in the
direction of” Beth Potts, but Taylor’s counsel asserted that there had “been no evidence
that in fact, the rounds from this weapon, if it was in fact fired, did in fact, kill these two
victims.” Id. at 543.
The prosecutor responded by citing to and quoting from Utah Code Ann. § 76-2-
202 which, as previously discussed, outlines the concepts of principal and accomplice
liability for criminal offenses. Id. at 545. The prosecutor in turn stated that “there should
be no question in the Court’s mind that these gentlemen were acting in concert with one
another, this was a joint enterprise” and that, under § 76-2-202, “they [we]re both
culpable.”4 Id. at 545–46. In addition, the prosecutor noted that the evidence established
“that two different weapons were fired” and that Taylor told Deli after the shootings that
4 Taylor argues in his appellate response brief that the prosecutor’s arguments
were made solely in response to arguments made by Deli’s counsel. Aple. Br. at 13-14.
It is true that the prosecutor followed these arguments by stating: “[u]nder these
circumstances, your Honor, I’d ask the Court to dismiss Mr. Gravis’ motion on behalf of
Mr. Deli.” Aplt. App., Vol. III at 546. Nevertheless, it is undisputable that (a) the
prosecutor was responding to arguments made both by Deli and Taylor, including
Taylor’s arguments about potentially not having fired any fatal shots, and (b) the
prosecutor noted in his arguments that both defendants were liable under § 76-2-202.
Thus, it is clear that by this exchange Taylor was placed on notice of the possibility of
accomplice liability.
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he (Taylor) “had reloaded his weapon.” Id. at 546. At the conclusion of these arguments,
the trial court denied Taylor’s counsel’s request to dismiss the charges and instead found
that there was sufficient evidence to establish probable cause for those charges.
Thus, in sum, the evidence and arguments that were presented at the preliminary
hearing provided Taylor with actual notice of the possibility that the State might seek to
convict him on the basis of accomplice liability.
The uncontested evidence overwhelmingly establishes that Taylor is
responsible for the two murders under a theory of accomplice liability
Because Taylor received both constructive and actual notice of the possibility of
accomplice liability for the two murders, it was the district court’s obligation under
Schlup v. Delo, 513 U.S. 298 (1995), to consider not only the issue of principal liability,
but also the issue of accomplice liability. Unfortunately, however, the district court
focused solely on the issue of principal liability and, by doing so, failed to make a
predictive judgment after examining available evidence whether a reasonable, properly
instructed jury could have convicted Taylor of both murders as an accomplice. We could
of course remand the case to the district court to conduct that analysis in the first
instance. But, because it is a legal issue subject to de novo review, and given the
importance of avoiding any additional delay in this case, the proper course for us is to
conduct the analysis in the first instance.
Turning to the evidence in the record, including the evidence presented at the
original sentencing proceeding and the new forensic evidence that was presented by
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Taylor at the evidentiary hearing before the district court, it is apparent that Taylor cannot
establish, in pertinent part, that it is more likely than not that no reasonable juror would
have convicted him of the two aggravated murders under an accomplice theory of
criminal liability. Even accepting the premise of Taylor’s new forensic evidence as
correct, i.e., that the fatal shots to the victims were caused by the .44 caliber handgun and
that it was Deli who fired those shots, and in turn accepting that it is more likely than not
that no reasonable juror would have convicted Taylor under a principal theory of criminal
liability, the evidence nevertheless quite clearly establishes Taylor’s guilt as an
accomplice because Taylor both (a) intended for the victims to be killed or knew that the
victims would die as a result of his and Deli’s actions and (b) encouraged and/or
intentionally aided Deli in the conduct that constituted the offense of aggravated murder
(i.e., firing fatal shots into each victim with the .44 caliber handgun).
The undisputed evidence that supports Taylor’s convictions as an accomplice in
both murders includes the following: (a) Linae Tiede’s eyewitness testimony that Taylor,
within three to four minutes of Kaye Tiede and Beth Potts entering the cabin, and without
either woman doing anything to provoke Taylor or Deli, raised his weapon, aimed it at
Kaye Tiede, and shot and struck her with a bullet (notably, Taylor concedes that he was
the first to shoot and that he shot and struck Kaye Tiede, Aplt. App., Vol. XIX at 4680),
id., Vol. III at 94–97; (b) Taylor’s admission under oath at the Rule 23B remand
evidentiary hearing before the trial court that he emptied his .38 handgun while shooting
at Kaye Tiede and Beth Potts, id., Vol. III at 608; (c) Linae Tiede’s testimony that, after
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Taylor and Deli discussed reloading their guns, Taylor said to Deli that he “needed help
with the bodies” and that they “needed to throw them over the balcony” of the cabin, id.,
Vol. I at 101; (d) testimony from Brad Wilde, a local sheriff’s deputy, who testified that
he found the bodies of Kaye Tiede and Beth Potts on the outside balcony of the cabin,
covered with both a blanket and snow on top of the blanket (suggesting that Taylor and
Deli attempted to conceal the bodies), id. at 185; and (e) testimony from both Linae Tiede
and Rolf Tiede describing how, after the shootings of Kaye Tiede and Beth Potts, Taylor
robbed Rolf Tiede, directed Deli to then shoot Rolf Tiede, and, when Deli failed to
comply, Taylor himself shot Rolf Tiede, id. at 110–13, 273–78.
It is inconceivable that any reasonable juror, properly instructed and considering
all of this evidence, could have reached any other conclusion than that Taylor intended to
kill, or at a minimum clearly knew that his actions would result in the deaths of, Kaye
Tiede and Beth Potts (as well as Rolf Tiede), and that he both encouraged and assisted
Deli in causing the deaths of Kaye Tiede and Beth Potts. In other words, it is
inconceivable that a reasonable juror could not have found Taylor guilty beyond a
reasonable doubt of the two aggravated murders at least on the basis of accomplice
liability even assuming, as argued by Taylor, that none of the bullets he fired from his
handgun caused the fatal wounds to Kaye Tiede and Beth Potts.
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