Lafferty v. State

2007 UT 73
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Ronald Watson Lafferty, 	No. 20060201
Plaintiff and Appellant,
v.
F I L E D
State of Utah,
Defendant and Appellee. 	September 14, 2007
---
Fourth District, Provo Dep’t
The Honorable Anthony W. Schofield
No. 020404472
Attorneys: 	Grant W. P. Morrison, William Patrick Morrison,
Salt Lake City, Aric Cramer, Bountiful, for plaintiff
Mark L. Shurtleff, Att’y Gen., Thomas B. Brunker,
Christopher D. Ballard, Asst. Att’ys Gen., Salt Lake
City, for defendant
---
PARRISH, Justice:
INTRODUCTION
¶1 	Plaintiff Ron Lafferty appeals the district court’s
entry of summary judgment in favor of the State on his claims for
post-conviction relief. 	We affirm, holding that Lafferty failed
to advance facts showing a genuine issue for trial.
BACKGROUND
¶2 	On July 24, 1984, Ron Lafferty (“Lafferty”) and his
brother Dan Lafferty (“Dan”) forcibly entered the home of their
sister-in-law Brenda Lafferty. 	State v. Lafferty (Lafferty III),
2001 UT 19, ¶ 13, 20 P.3d 342. 	Both brothers beat Brenda

1 At Lafferty’s trial, Dan testified that he alone slit
Brenda’s throat. 	One of the men in the car with Lafferty
immediately following the killings, however, testified that
Lafferty admitted killing Brenda. 	Lafferty III, 2001 UT 19,
¶ 15.
No. 20060201 	2
severely, and one of them slit her throat. 1 	Id.; State v.
Lafferty (Lafferty I), 749 P.2d 1239, 1241 (Utah 1988). 	Dan then
killed Brenda’s fifteen-month-old baby, Erica, by slitting her
throat. 	Lafferty I, 749 P.2d at 1241. 	Both brothers emerged
from Brenda’s home covered with blood and drove to Chloe Low’s
home, intending to murder her. 	Lafferty III, 2001 UT 19, ¶¶ 13-
14. 	They broke into her home, but found her away. 	Id. ¶ 14.
Upon leaving Low’s home, they discussed murdering Richard Stowe,
the man who had presided over Lafferty’s excommunication
proceedings from The Church of Jesus Christ of Latter-day Saints,
and started to drive toward his home. 	Id. ¶¶ 9, 14. 	After
missing the turn-off, however, they abandoned their plan. 	Id.
¶ 15.
¶3 	The impetus for these gruesome acts was Lafferty’s
claim that he had received a divine revelation commanding that
these four individuals be “removed.” 	Id. ¶ 8 & n.4. 	Lafferty
crashed to the nadir of delusion and murder from his well-
respected position as an ecclesiastical and civic leader in the
course of approximately three years. 	Id. ¶¶ 3-13.
¶4 	On May 7, 1985, Lafferty was convicted of two counts of
first degree murder, two counts of aggravated burglary, and two
counts of conspiracy to commit first degree murder. 	Id. ¶ 21.
He was sentenced to death for the murder convictions.
Lafferty I, 749 P.2d at 1242. 	This court affirmed the
convictions on January 11, 1988. 	Id. at 1241. 	On federal
collateral review, however, the Tenth Circuit vacated the
convictions and sentence, holding that the state trial judge had
evaluated Lafferty’s competence under an incorrect standard.
Lafferty v. Cook (Lafferty II), 949 F.2d 1546, 1548 (10th Cir.
1991).
¶5 	On retrial in April 1996, a second jury convicted
Lafferty of two counts of first degree murder, aggravated
burglary, and conspiracy to commit first degree murder.
Lafferty III, 2001 UT 19, ¶ 1. 	He was again sentenced to death
for the murder convictions. 	Id. 	We affirmed these convictions
in February 2001. 	Id. ¶ 151. 	The United States Supreme Court
denied Lafferty’s petition for a writ of certiorari on
November 13, 2001. 	Lafferty v. Utah, 534 U.S. 1018 (2001).

3 	No. 20060201
¶6 	Lafferty filed a preliminary petition for post-
conviction relief on October 10, 2002. 	His original post-
conviction counsel withdrew because of a conflict of interest in
August 2003. 	Lafferty’s current counsel was appointed on
November 13, 2003. 	The post-conviction court approved Lafferty’s
request for an investigator and a mitigation specialist on
February 18, 2004. 	Lafferty filed a second amended petition for
post-conviction relief on October 29, 2004. 	The first part of
the petition consists of a newly discovered evidence claim and
forty-seven additional claims. 	The second part of the petition
is a pro se filing. 	On February 22, 2005, the State moved to
dismiss four of Lafferty’s claims and moved for summary judgment
on the remaining claims. 	The post-conviction court heard oral
argument on these motions on October 6, 2005.
¶7 	On November 29, 2005, the post-conviction court granted
the State’s summary judgment motion with respect to each of
Lafferty’s claims. 	A final order was entered on January 3, 2006.
Lafferty appealed the post-conviction court’s decision on
January 31, 2006, raising thirty-six claims from the first part
of his second amended petition. 	We have jurisdiction pursuant to
Utah Code section 78-2-2(3)(i).
ANALYSIS
¶8 	Lafferty’s numerous post-conviction claims fall into
five broad categories. 	First, he argues that his trial and
appellate counsel were ineffective. 	Second, he argues that the
post-conviction court erred in dismissing twenty-five of his
claims on the basis that they could have been brought on direct
appeal. 	Specifically, he argues that an ineffective assistance
of counsel claim was implied in each of these dismissed claims,
thus creating adequate grounds for reviewing them in post-
conviction proceedings. 	Third, he contests the post-conviction
court’s holding that he failed to establish the necessary facts
to justify a trial on his claim that time and money constraints
precluded his post-conviction counsel from satisfying the ABA
guidelines for representing capital defendants. 	Fourth, Lafferty
argues that an evaluating psychologist’s testimony about
“situational competence” in a subsequent and unrelated trial
constitutes new evidence, entitling him to a new trial. 	Finally,
Lafferty argues that his Sixth Amendment right to counsel was
violated because his trial counsel also represented his
co-defendant Dan with respect to charges arising from the same
criminal episode.
¶9 	We review the denial of post-conviction relief for
correctness, affording no deference to the lower court’s legal

No. 20060201 	4
conclusions. 	Taylor v. State (Taylor II), 2007 UT 12, ¶ 13, 156
P.3d 739.
I. 	INEFFECTIVE ASSISTANCE OF COUNSEL
¶10 	Lafferty alleges that his trial counsel was ineffective
for (1) failing to request that the jury be sequestered,
(2) failing to conduct an adequate mitigation investigation,
(3) failing to meet the requirements outlined in rule 8 of the
Utah Rules of Criminal Procedure and the ABA guidelines for
representing capital defendants, and (4) failing to object to the
prosecutor’s closing argument. 	Lafferty alleges that his
appellate counsel was ineffective for (1) failing to meet the
qualifications outlined in rule 8 of the Utah Rules of Criminal
Procedure and the ABA guidelines and (2) failing to appeal the
trial court’s denial of his request for a change of venue.
A. 	Ineffective Assistance of Trial Counsel
¶11 	Implicit in the Sixth Amendment’s guarantee of counsel
is the right to effective assistance of counsel, Strickland v.
Washington, 466 U.S. 668, 686 (1984), because “it envisions
counsel’s playing a role that is critical to the ability of the
adversarial system to produce just results.” 	Id. at 685.
Consequently, there are circumstances where counsel’s assistance
is so lacking that it undermines the proper functioning of the
adversarial process and the reliability of the outcome. 	Id. at
686. 	To prove ineffective assistance of counsel, a petitioner
must establish (1) “that counsel’s performance was deficient,”
and (2) that “the deficient performance prejudiced the defense.”
Id. at 687. 	These prongs may be addressed in either order. 	Id.
at 697.
¶12 	To establish that counsel was deficient, a petitioner
must overcome the strong presumption that counsel rendered
constitutionally sufficient assistance, id. at 689-90, by showing
that counsel’s conduct “fell below an objective standard of
reasonableness” under prevailing professional norms, id. at 688.
The Supreme Court has rejected the invitation to provide more
specific guidelines for determining effective assistance;
instead, courts should evaluate whether counsel’s assistance was
reasonable “considering all the circumstances.” 	Id.
Professional standards and guidelines can assist in that
evaluation but are by no means definitive. 	Id.
¶13 	To establish that deficient performance prejudiced the
defense, a petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the

5 	No. 20060201
result of the proceeding would have been different.” 	Id. at 694.
Reasonable probability is defined as “probability sufficient to
undermine confidence in the outcome.” 	Id. 	Having outlined the
legal requirements for ineffective assistance, we now turn to
Lafferty’s specific claims.
1. 	Jury Sequestration
¶14 	Lafferty argues that, given the high-profile nature of
the case, his trial counsel was ineffective for failing to
request that the jury be sequestered. 	Focusing on the fact that
one initially sympathetic juror was excused because of outside
interference, Lafferty further argues that, had the jury been
sequestered, this juror would have remained on the jury and
possibly voted against the death penalty. 	Lafferty relies on
this example of outside interference to underscore the likelihood
that prejudice resulted from the lack of jury sequestration.
¶15 	As a matter of law, Lafferty’s argument does not meet
the showing required under Strickland. 	Lafferty offers no
support for his proposition that reasonable counsel “surely”
would have moved to sequester the jury in such a “high profile
case.” 	Moreover, the fact that an initially sympathetic juror
was excused does not establish prejudice. 	The Constitution
guarantees a defendant the right to an impartial jury, U.S.
Const. amend. VI; State v. Wach, 2001 UT 35, ¶ 36, 24 P.3d 948,
not a jury of a particular composition, Taylor v. Louisiana, 419
U.S. 522, 538 (1975); State v. Tillman, 750 P.2d 546, 575 (Utah
1987). 	The contamination and subsequent dismissal of one
potentially sympathetic juror has no effect on the seated jury’s
impartiality.
¶16 	We are cognizant of circumstances where pervasive
pretrial publicity is considered inherently prejudicial. 	For
example, in Irvin v. Dowd, 366 U.S. 717 (1961), pretrial
publicity was so inflammatory that eight of the twelve jurors had
determined the defendant guilty prior to the start of trial. 	Id.
at 728. 	Similarly, in Rideau v. Louisiana, 373 U.S. 723 (1963),
where the defendant’s taped confession was broadcast by a
community television station three times prior to his
arraignment, the Supreme Court declined to review the voir dire
transcripts for evidence of prejudice, holding that actual
prejudice was inherent in the proceeding. 	Id. at 723, 727. 	In a
subsequent decision, the Court described the Rideau trial as a
“‘hollow formality,’” while the “real trial had occurred when
tens of thousands of people, in a community of 150,000, had seen
and heard the defendant admit his guilt before the cameras.”
Murphy v. Florida, 421 U.S. 794, 799 (1975) (quoting Rideau, 373

No. 20060201 	6
U.S. at 726). 	Similarly, extreme in-trial media coverage can
deprive a court proceeding of the “solemnity and sobriety to
which a defendant is entitled in a system that subscribes to any
notion of fairness and rejects the verdict of a mob.” 	Murphy,
421 U.S. at 799.
¶17 	The circumstances forming the basis of such egregious,
inherent prejudice, however, cannot be so broadly interpreted as
to stand for the proposition that “juror exposure to information
about a state defendant’s prior convictions or to news accounts
of the crime with which he is charged alone presumptively
deprives the defendant of due process.” 	Id. 	Neither Lafferty’s
bare allegation of prejudice nor the record suggests the kind of
media circus that would create an inherently unfair trial.
¶18 	Absent such extreme circumstances, a petitioner seeking
to establish prejudice must show that the jury was subject to
“actual exposure to the potentially prejudicial matter [with] an
actual prejudicial effect.” 	State v. Clark, 675 P.2d 557, 560
(Utah 1983). 	It is logical that this burden falls on the
petitioner given the presumption of jury impartiality and the
discretion afforded the trial court in determining whether to
sequester the jury. 	See, e.g., United States v. McVeigh, 119
F.3d 806, 815 (10th Cir. 1997) (finding that the trial court did
not abuse its discretion in refusing to sequester the jury for
the lengthy trial of the Oklahoma City bomber).
¶19 	We rejected a claim similar to Lafferty’s in Codianna
v. Morris, 660 P.2d 1101 (Utah 1983). 	In that case, we found no
prejudice or deficiency because the media coverage did not create
the “‘carnival atmosphere’” indicative of actual prejudice and
because “‘pretrial publicity--even pervasive, adverse publicity–-
does not inevitably lead to an unfair trial.’” 	Id. at 1111
(quoting Sheppard v. Maxwell, 384 U.S. 333, 358 (1966); Neb.
Press Ass’n v. Stuart, 427 U.S. 539, 554 (1976)). 	Consequently,
we found that counsel was not ineffective for failing to demand
that the jury be sequestered. 	Codianna, 660 P.2d at 1112.
¶20 	Similarly, in this case, Lafferty failed to provide any
evidence showing that the publicity surrounding the trial created
prejudice. 	In fact, there is a complete lack of any evidence
reflecting the extensiveness of the pretrial media coverage of
the murders or possible prejudice among the potential jury pool.
Nor are there record citations to the voir dire transcripts
indicating possible prejudice among the jurors who were actually
seated. 	Because of Lafferty’s abject failure to meet his
evidentiary burden, we affirm the trial court’s ruling that

7 	No. 20060201
Lafferty’s counsel was not ineffective in failing to request jury
sequestration.
2. 	Death Qualification of the Jury
¶21 	Lafferty next argues that his trial counsel rendered
ineffective assistance by failing to object to the death
qualification of the jury. 	Death qualification refers to the
practice of excluding from the jury venire those jurors who would
not vote for the death penalty under any circumstances.
Lafferty I, 749 P.2d at 1253; State v. Alvarez, 872 P.2d 450, 454
(Utah 1994) (quoting Utah R. Crim. P. 18(e)(10)). 	Lafferty
suggests that his counsel’s failure to object resulted in the
denial of his right to an impartial jury.
¶22 	Lafferty’s argument is without factual basis. 	On
June 30, 1994, prior to Lafferty’s second trial, his trial
counsel, Michael Esplin, moved to preclude the death
qualification of the jury venire, arguing that it was
unconstitutional. 	The motion was denied on September 12, 1995.
Because this claim was raised and rejected by the trial court, it
is not an appropriate basis for relief under the Post-Conviction
Remedies Act (“PCRA”). 	Utah Code Ann. § 78-35a-106(1)(b).
¶23 	In addition to this procedural bar, we also object to
the way this argument was raised. 	In his post-conviction
petition, Lafferty initially alleged that the death qualification
of the jury was unconstitutional. 	However, when faced with the
PCRA’s procedural bar in the context of the State’s motion for
summary judgment, Lafferty recast the claim into an ineffective
assistance of counsel claim in his memorandum opposing summary
judgment. 	He has repeated this characterization in his briefs to
this court. 	Raising an issue for the first time in a memorandum
opposing summary judgment without showing good cause violates the
pleading requirements for post-conviction petitions, Utah R. Civ.
P. 65C(c), and transforming a claim into a new legal animal on
appeal violates our preservation requirements, State v. Holgate,
2000 UT 74, ¶ 11, 10 P.3d 346.
¶24 	Moreover, if we were to suspend the strictures of the
facts, the PCRA, and our procedural rules, Lafferty’s claim would
still fail. 	Effective assistance requires only that counsel
identify and apply existing law. 	Strickland, 466 U.S. at 689 (“A
fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight
. . . and to evaluate the conduct from counsel’s perspective at
the time.”). 	At the time of Lafferty’s second trial, both the
United States Supreme Court and this court had held that death

No. 20060201 	8
qualifying a jury did not violate a defendant’s Sixth Amendment
right to an impartial jury. 	See Lockhart v. McCree, 476 U.S.
162, 177-78 (1986) (rejecting the view that “excluding
prospective jurors with a particular viewpoint” creates “an
impermissibly partial jury” and affirming the view that “an
impartial jury consists of nothing more than ‘jurors who will
conscientiously apply the law and find the facts.’” (quoting
Wainwright v. Witt, 469 U.S. 412, 423 (1985))); State v. Alvarez,
872 P.2d 450, 454-55 (Utah 1994) (holding that death
qualification of juries does not violate the Utah Constitution);
Lafferty I, 749 P.2d 1239, 1253 (Utah 1988) (noting that under
Lockhart “the United States Supreme Court has reaffirmed the
constitutionality of death-qualifying juries in capital cases”).
In fact, Lafferty had raised and lost a constitutional claim
challenging the death qualification process on his first appeal.
Lafferty I, 749 P.2d at 1253. 	Therefore, counsel was not
obligated to reassert the claim in order to be effective.
3. 	Mitigation Investigation
¶25 	Lafferty next argues that his trial counsel was
ineffective for failing to conduct an adequate mitigation
investigation. 	Specifically, he argues that trial counsel failed
to hire effective investigators to re-interview witnesses,
discover evidence tampering, and find exculpatory evidence;
failed to hire a mitigation expert for the penalty phase of the
trial; and failed to present determinative mitigation evidence.
He asserts that these alleged deficiencies limited the
presentation of critical mitigation evidence that would have
likely resulted in his receiving a lesser punishment. 	We affirm
the district court’s grant of summary judgment to the State on
these claims.
¶26 	Trial counsel is constitutionally required to conduct
an adequate mitigation investigation. 	State v. Taylor
(Taylor I), 947 P.2d 681, 686-87 (Utah 1997). 	As are all
assessments of counsel’s effectiveness, the adequacy of this
investigation is judged by a standard of reasonableness. 	Wiggins
v. Smith, 539 U.S. 510, 533 (2003) (“A decision not to
investigate thus must be directly assessed for reasonableness in
all the circumstances.” (internal quotation marks omitted));
Strickland, 466 U.S. at 691 (“[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.”). 	We presume that
counsel acted reasonably absent evidence to the contrary.
Strickland, 466 U.S. at 689.

9 	No. 20060201
¶27 	Consequently, in order to show the inadequacy of
counsel’s mitigation investigation, Lafferty has the burden of
identifying “acts or omissions of counsel that are alleged not to
have been the result of reasonable professional judgment.”
Strickland, 466 U.S. at 690; see also Taylor I, 947 P.2d at 687
(“Failure to investigate mitigating factors can constitute
ineffective assistance of counsel only where such factors
actually exist and may be productively used in the penalty
phase.”).
¶28 	Lafferty bears this burden under our procedural rules
as well. 	See Utah R. Civ. P. 65C(c)(3), (d)(1) (requiring the
petitioner to set forth “in plain and concise terms, all of the
facts that form the basis of [his] claim to relief” including
“affidavits, copies of records and other evidence in support of
the allegations”). 	Lafferty has failed to show how counsel was
deficient in his investigation and how that deficiency created
prejudice. 	In short, Lafferty presented no proof of evidence
tampering or undiscovered exculpatory evidence that would have
resulted from a more extensive mitigation investigation.
¶29 	Lafferty’s claim that trial counsel failed to present
material mitigation evidence is also without basis. 	Lafferty
focuses on the mitigation evidence presented in the penalty phase
of the trial--namely, yearbook pictures, family photographs, and
testimony from prison officials that Lafferty was a “relatively
trouble-free inmate”--without considering the extensive
mitigation evidence that was presented during the guilt phase of
the trial. 	Lafferty asserts that his trial counsel was
ineffective for failing to introduce during the penalty phase of
the trial his educational records, mental health records,
psychological testing results, National Guard honorable
discharge, Utah County Jail and Department of Corrections
records, journal entries, and witness accounts of his background
of abuse.
¶30 	The premise for Lafferty’s argument is his assertion
that evidence presented in the guilt portion of a capital case
must be reintroduced in the penalty phase. 	But we rejected this
premise in Lafferty III, where we explicitly stated that “just as
aggravating factors from the guilt phase of the trial may be
considered at the penalty phase, so may any mitigating evidence
or factors presented in the case-in-chief.” 	2001 UT 19, ¶ 127.
Indeed, the implication that all mitigating evidence must be
presented twice is illogical given the statutorily imposed
procedure in a death-eligible case where the guilt and sentencing
phases of the trial are heard by the same jury. 	See Utah Code
Ann. § 76-3-207(1)(c)(i) (2003).

No. 20060201 	10
¶31 	The mitigation defense presented by Lafferty’s trial
counsel during the guilt phase was extensive and included the
very evidence that Lafferty complains was not presented during
the penalty phase. 	Trial counsel presented testimony from
Lafferty’s brothers and evaluating psychologists and
psychiatrists about Lafferty’s childhood, including evidence of
physical, verbal, and emotional abuse within his childhood home.
Trial counsel also presented evidence of his mental health
history and testimony interpreting his psychological test results
and analyzing his competence; testimony about his school
performance; the volume of Lafferty’s journal that post-
conviction counsel’s mitigation expert found particularly
relevant; character witness testimony, including assessments that
Lafferty was a good neighbor and strong member of the community;
and evidence of his brother Dan’s undue influence over him.
During the penalty phase, counsel presented his records from the
Utah County Jail and Utah Department of Corrections. 	While
Lafferty’s trial counsel did not present evidence of Lafferty’s
National Guard service, Lafferty has failed to articulate how
this evidence is material. 	In fact, the mitigation expert hired
by post-conviction counsel conceded that Lafferty’s National
Guard service is “rather unremarkable as part of [his] social
history.” 	In sum, Lafferty points to no relevant mitigating
evidence that trial counsel should have, but did not, investigate
and present.
4. 	Rule 8 and the ABA Guidelines
¶32 	Lafferty also claims ineffective assistance of counsel
because his trial counsel did not meet the qualifications for
representing capital defendants contained in rule 8 of the Utah
Rules of Criminal Procedure and in the ABA guidelines. 	The
district court granted summary judgment to the State on these
claims because Lafferty has no constitutional right to counsel
with these specific qualifications. 	In response, Lafferty argues
that the lack of qualification is “the epitome of ineffectiveness
of counsel.” 	In essence, Lafferty invites us to abandon the
two-pronged Strickland analysis and adopt a per se rule under
which counsel’s failure to meet the rule 8 or ABA requirements
equates to ineffective assistance of counsel. 	We decline the
invitation.
¶33 	The qualifications outlined in rule 8 constitute our
attempt to decrease the likelihood that capital defendants will
receive representation from inexperienced attorneys; however,
compliance with these requirements is not constitutionally
mandated. 	Rule 8 requires proficiency from counsel appointed in

11 	No. 20060201
capital cases, Utah R. Crim. P. 8(b), 8(d), but it also
explicitly precludes basing an ineffective assistance claim
solely on counsel’s failure to meet the requirements of rule 8,
id. at 8(f) (“Mere noncompliance with this rule or failure to
follow the guidelines set forth in this rule shall not of itself
be grounds for establishing that appointed counsel ineffectively
represented the defendant at trial or on appeal.”). 	While our
rule 8 requirements may be used as a tool to illustrate the
margin between counsel’s performance and professional competence,
without more, their violation does not establish deficiency.
¶34 	With regard to the ABA guidelines, courts frequently
use these guidelines to determine the relevant professional norms
under the first prong of the Strickland analysis, see, e.g.,
Rompilla v. Beard, 545 U.S. 374, 387 (2005); Menzies v. Galetka,
2006 UT 81, ¶ 90, 150 P.3d 480. 	They do not, however, establish
a rigid checklist or set of rules that counsel must satisfy in
order to provide effective representation, see Strickland, 466
U.S. at 688-89.
¶35 	Lafferty fails to proffer evidence establishing how his
counsel’s performance was constitutionally deficient and how that
deficient performance prejudiced him. 	In the absence of such a
showing, Lafferty’s mere assertion that his trial counsel failed
to meet the requirements of rule 8 and the ABA guidelines does
not support a finding of ineffective assistance.
5. 	Prosecutorial Misconduct
¶36 	Lafferty argues that trial counsel was ineffective for
failing to object to the prosecutor’s statement in his closing
argument that punishment for the murder of a fifteen-month-old
baby should be greater than the punishment for murdering an
adult. 	The prosecutor stated, “[I]f you determine that the
defendant deserves life without parole before we even consider
[the child victim] lying dead in her crib, before we ever
consider that the second person he killed was a 15-month-old
infant, then there’s only one punishment left that is meaningful,
and that is death.” 	Lafferty III, 2001 UT 19, ¶ 91.
¶37 	On direct appeal, Lafferty challenged this statement as
unconstitutionally prejudicial. 	Id. ¶ 89. 	He modified the claim
in his post-conviction petition, however, presumably in an
attempt to avoid the procedural bar against consideration of
arguments previously raised. 	Specifically, Lafferty argues that
trial counsel’s failure to contemporaneously object to the
statement put the issue in a more burdensome procedural posture,
requiring a showing of plain error. 	Thus, in addition to proving

2 We previously have described the omission of a “dead-bang
winner” argument as a circumstance that would warrant a finding
of ineffective assistance of appellate counsel. 	See Carter v.
Galetka, 2001 UT 96, ¶ 48, 44 P.3d 626; Taylor II, 2007 UT 12,
¶ 16. 	While this type of omission remains an accurate example of
ineffective assistance of appellate counsel, we are reluctant to
repeat the “dead-bang winner” language here because of the
possibility that it may be viewed as the standard for relief,
rather than as an example of a circumstance when relief would be
warranted. 	If such a mistake were made, it would overstate the
petitioner’s burden.
No. 20060201 	12
the substantive requirements of prosecutorial misconduct,
appellate counsel was required to prove that the prosecutor’s
statements were “obviously improper.” 	State v. Emmett, 839 P.2d
781, 785 (Utah 1992). 	Lafferty claims that absent this high
standard, his challenge to the prosecutor’s allegedly prejudicial
comment could have created grounds for reversal.
¶38 	We specifically held in Lafferty III, however, that the
statements were neither prejudicial nor inflammatory, 2001 UT 19,
¶¶ 91-93, and Lafferty has failed to present us with a reason for
reconsidering that holding. 	Consequently, we find neither
ineffectiveness nor misconduct in trial counsel’s failure to
contemporaneously object to the prosecutor’s closing argument,
and we affirm the trial court’s entry of summary judgment in
favor of the State on this claim.
B. 	Ineffective Assistance of Appellate Counsel
¶39 	The Due Process Clause of the Fourteenth Amendment
ensures criminal defendants a right to effective assistance of
appellate counsel. 	Bruner v. Carver, 920 P.2d 1153, 1157 (Utah
1996). 	As is the case in challenges to the effectiveness of
trial counsel, to prevail on a claim of ineffective assistance of
appellate counsel, a petitioner must prove that appellate
counsel’s representation “fell below an objective standard of
reasonable conduct and that the deficient performance prejudiced
[him].” 	Id. 	For a petitioner to prove that counsel was
ineffective for omitting a claim, he must show that the “issue
[was] obvious from the trial record and . . . probably would have
resulted in reversal on appeal.” 	Taylor v. State (Taylor II),
2007 UT 12, ¶ 16, 156 P.3d 739. 2
1. 	Rule 8 and the ABA Guidelines
¶40 	Lafferty first contends that his appellate counsel was
ineffective because of his failure to meet the qualification

3 The question differs when a denial of a motion for a
change of venue is reviewed on interlocutory appeal. 	For
example, in State v. James, 767 P.2d 549 (Utah 1989), we
articulated different factors for consideration because the
procedural posture of the case allowed for the possible avoidance
of prejudice, rather than just the possibility for vacating its
consequences. 	While the James factors “can be helpful to a trial
court assessing the overall fairness of the jury pool,” they are
not determinative. 	State v. Stubbs, 2005 UT 65, ¶ 17, 123 P.3d
407. 	Lafferty’s exclusive reliance on James, therefore, is
misplaced.
13 	No. 20060201
requirements of rule 8 of the Utah Rules of Criminal Procedure
and the ABA guidelines. 	We quickly dispense with this claim. 	As
was the case with Lafferty’s identical charge against trial
counsel, Lafferty’s claim that his appellate counsel’s failure to
comply with these standards fails as a matter of law to prove the
deficiency of counsel. 	See supra ¶¶ 32-35.
2. 	Change of Venue
¶41 	Lafferty next contends that appellate counsel was
ineffective for failing to appeal the denial of his request for a
change of venue. 	We are unpersuaded by this claim, concluding
that the legal basis for his analysis is misplaced and his
assertions are unsupported.
¶42 	When a change of venue decision is challenged on appeal
following a jury verdict, the determinative question is “‘whether
[the] defendant was ultimately tried by a fair and impartial
jury.’” 3 	State v. Stubbs, 2005 UT 65, ¶ 10, 123 P.3d 407
(quoting State v. Widdison, 2001 UT 60, ¶ 38, 28 P.3d 1278). 	The
standard for review is abuse of discretion. 	Widdison, 2001 UT
60, ¶ 38. 	In Stubbs, for example, we relied on the juror’s
actual voir dire answers to conclude that the jury pool was so
tainted that the trial court probably could not impanel an
impartial jury. 	2005 UT 65, ¶ 18. 	Here, however, Lafferty
points to no evidence of a tainted jury.
¶43 	Without evidence of prejudice, Lafferty cannot show
that counsel was deficient for overlooking an obvious argument
that probably would have resulted in reversal on appeal. 	In
fact, on his first appeal, Lafferty’s counsel, the same counsel
who represented him on his second direct appeal, did challenge
the denial of his motion to change venue. 	Lafferty I, 749 P.2d
at 1250. 	This court rejected that challenge because the totality
of the circumstances provided no basis for concluding that the
trial court should distrust the jurors’ assurances of

4 These claims are as follows: 	Claim 1 challenges the
constitutionality of certain parts of the Utah capital sentencing
statute. 	Claims 2, 3, 15, 16, 18, and 19 challenge the penalty
phase instructions and verdict forms. 	Claim 18 also asserts that
jurors were naturally disposed to imposing a death sentence at
the penalty phase because they had already found the existence of
at least one aggravating factor at the guilt phase. 	Claim 5
challenges the process of death qualification during jury
selection. 	Claim 6 challenges the trial court’s denial of
Lafferty’s motion for change of venue. 	Claim 11 challenges the
trial court’s decision preventing Lafferty from admitting a
number of mitigating circumstances at the penalty phase. 	Claim
12 challenges the trial court’s decision not to sequester the
jury. 	Claim 13 challenges the reasonable doubt instruction given
at the guilt and penalty phases of the trial. 	Claim 17 asserts
that insufficient evidence was presented at the penalty phase to
support the aggravating factor that the homicide was committed in
an especially heinous, atrocious, cruel, or exceptionally
depraved manner. 	Claim 20 addresses the issue that, after the
(continued...)
No. 20060201 	14
impartiality. 	Id. at 1250-51. 	And Lafferty provides no reason
why counsel was deficient for failing to again pursue this
unsuccessful claim on his second appeal. 	We therefore affirm the
trial court, finding no deficiency in counsel’s failure to appeal
the trial court’s denial of Lafferty’s motion to change venue.
II. 	CLAIMS BARRED UNDER THE PCRA BECAUSE
THEY WERE NOT RAISED ON DIRECT APPEAL
¶44 	The PCRA affords a convicted defendant the opportunity
to have his conviction and sentence vacated or modified under
certain circumstances. 	Utah Code Ann. §§ 78-35a-102, -104(1)
(2002). 	A petition for post-conviction relief is a collateral
attack on a conviction and sentence available only after a
defendant has exhausted all other legal remedies. 	Id.
§ 78-35a-102(1); see Taylor v. State (Taylor II), 2007 UT 12,
¶ 14, 156 P.3d 739. 	Claims that were brought on direct appeal
are ineligible for consideration in post-conviction actions.
Utah Code Ann. § 78-35a-106(1)(b) (2002); see also Gardner v.
Holden, 888 P.2d 608, 613 (Utah 1994). 	Similarly, a claim that
could have been brought on direct appeal may not be reviewed
unless the defendant’s failure to bring the claim was the result
of ineffective assistance of counsel. 	Utah Code Ann.
§ 78-35a-106(1)(c), (2) (2002).
¶45 	The post-conviction court found that Lafferty could
have raised twenty-five of his post-conviction relief claims 4 on

4 (...continued)
Tenth Circuit Court of Appeals vacated Lafferty’s conviction and
sentence, he was not arrested on a warrant, but simply
transferred from the Utah State Prison to the Utah County Jail.
Claim 30 asserts that Lafferty’s constitutional rights were
violated when the prosecution argued that Lafferty murdered one
and perhaps both of the homicide victims after arguing at Dan’s
trial that he had committed both murders. 	Claims 32 and 47
challenge the constitutionality of Utah’s aggravated murder
statute. 	Claims 33, 35, 37, and 38 challenge the
constitutionality of Utah’s death penalty scheme. 	Claims 34 and
41 challenge the constitutionality of the death penalty. 	Claim
42 asserts that the cumulative effect of the numerous errors
committed during Lafferty’s trial violated his rights to due
process and a fair trial. 	Claim 46 challenges the
constitutionality of Utah’s insanity defense statute and asserts
that the trial court improperly relied on the 1995 version of the
statute rather than the 1984 version.
15 	No. 20060201
direct appeal but did not, thus preventing those claims from
being heard in a post-conviction relief proceeding. 	Lafferty
agrees that these claims could have been, but were not, raised on
direct appeal. 	In an attempt to avoid the procedural bar to
their consideration, however, he argues that trial counsel’s
failure to raise these claims illustrates his ineffectiveness,
thereby providing an independent basis for collateral review.
¶46 	Lafferty first characterized these claims as claims for
ineffective assistance of appellate counsel in his memorandum
opposing summary judgment. 	We agree with the post-conviction
court that this tactic constitutes an impermissible attempt to
raise claims not raised in Lafferty’s second amended petition for
post-conviction relief.
¶47 	Lafferty’s attempt to reconfigure his claims violates
our pleading requirements unless good cause is shown. 	Rule
65C(c) of the Utah Rules of Civil Procedure provides that a
“petition shall set forth all claims that the petitioner has in
relation to the legality of the conviction or sentence.
Additional claims relating to the legality of the conviction or
sentence may not be raised in subsequent proceedings except for
good cause shown.” 	The good cause provision of rule 65C allows
us to consider claims that were not raised in a post-conviction
petition when adherence to a procedural rule would come at the
price of basic fairness. 	Tillman v. State, 2005 UT 56, ¶ 21, 128
P.3d 1123; Gardner v. Galetka, 2007 UT 3, ¶¶ 18-20 & n.31, 151
P.3d 968. 	In this instance, however, Lafferty has not shown good
cause for failing to raise these claims under the rubric of

5 In finding these claims procedurally barred, the post-
conviction court relied on our civil law rule that “[a] plaintiff
cannot amend the complaint by raising novel claims or theories
for recovery in a memorandum in opposition to a motion to dismiss
or for summary judgment.” 	Holmes Dev. LLC v. Cook, 2002 UT 38,
¶ 31, 48 P.3d 895. 	We decline to adopt this reasoning because
Rule 65C of the Utah Rules of Civil Procedure, which governs
“proceedings in all petitions for post-conviction relief,” allows
the petitioning party to raise additional claims in subsequent
proceedings for “good cause shown.” 	Utah R. Civ. P. 65C(c).
No. 20060201 	16
ineffective assistance of counsel in his second amended petition.
Accordingly, the claims as originally brought remain procedurally
barred under the PCRA. 5
¶48 	Moreover, even were we to view these claims through the
lens of ineffective assistance of appellate counsel, Lafferty is
still not entitled to relief. 	In order to prove ineffective
assistance of appellate counsel, Lafferty must show that there is
a genuine issue of material fact with respect to whether
appellate counsel overlooked an “‘issue which is obvious from the
trial record and . . . which probably would have resulted in
reversal on appeal.’” 	Carter v. Galetka, 2001 UT 96, ¶ 48, 44
P.3d 626 (quoting Banks v. Reynolds, 54 F.3d 1508, 1515 n.13
(10th Cir. 1995)).
¶49 	While Lafferty does raise a number of issues that were
not raised on direct appeal, he fails to show how appellate
counsel’s failure to raise them on direct appeal amounted to
constitutionally deficient performance. 	Lafferty assumes that
the omission of these claims constitutes “the very kernel of
ineffective assistance of counsel: 	had prior counsel actually
provided effective assistance, then these claims would have been
brought on direct appeal.” 	These assertions misconstrue the
premise of our ineffective assistance of counsel standard.
Appellate counsel is not obligated to raise “‘every nonfrivolous
issue on appeal . . . [and may] “winnow out” weaker claims in
order to focus effectively on those more likely to prevail.’”
Carter, 2001 UT 96, ¶ 48 (quoting Banks, 54 F.3d at 1515).
¶50 	Because of the presumption of regularity that attaches
to final judgments, Lafferty bears the burden of proof in a post-
conviction relief action. 	Bruner v. Carver, 920 P.2d 1153, 1155
(Utah 1996). 	But Lafferty points to no evidence of
constitutionally deficient performance in appellate counsel’s
failure to raise these claims, and we fail to see evidence of any
deficiency. 	The mere repetition of the Strickland standard does
not create the demonstrable reality of ineffective assistance

17 	No. 20060201
necessary to overturn a conviction. 	See Fernandez v. Cook, 870
P.2d 870, 877 (Utah 1993).
¶51 	Further, Lafferty fails to establish prejudice. 	While
he argues that prejudice resulted because these claims were not
presented, he makes no attempt to show that the presentation of
these claims would have likely resulted in reversal of his
conviction.
¶52 	In sum, we agree with the post-conviction court that
these twenty-five claims could have been brought on direct appeal
and thus are procedurally barred under the PCRA. 	And even were
we to consider these claims under the guise of ineffective
assistance of counsel, they fail as a matter of law.
III. 	COMPLIANCE WITH ABA GUIDELINES FOR POST-CONVICTION
RELIEF COUNSEL
¶53 	Lafferty argues that he is entitled to post-conviction
relief because time and money constraints prevented his post-
conviction counsel from satisfying the ABA guidelines for
attorneys representing post-conviction petitioners in capital
cases. 	We agree with the district court that this claim is
deficient and that summary judgment is proper on procedural
grounds alone.
¶54 	Rule 65C of the Utah Rules of Civil Procedure requires
a petition to set forth “in plain and concise terms, all of the
facts that form the basis of the petitioner’s claim to relief.”
Utah R. Civ. P. 65C(c)(3). 	Rule 65C(d)(1) requires the
petitioner to “attach to the petition . . . affidavits, copies of
records and other evidence in support of the allegations.”
Lafferty provides no factual support, or even explanation, for
why time was too limited to adequately investigate the case and
complete the record. 	Nor does Lafferty provide bills, estimates,
or any other evidence to show that funding limitations forced
counsel to choose between conducting a mitigation investigation
and hiring a private investigator to reconstruct the
investigation. 	In fact, Lafferty even failed to include a copy
of the guidelines with his petition to the post-conviction court
or in his briefs to us. 	Because of the deficiency in his
pleadings, we agree with the post-conviction court that Lafferty
has failed to show that a genuine issue exists with respect to
this claim. 	Consequently, summary judgment was warranted.
¶55 	Moreover, even had Lafferty properly presented this
claim, it does not warrant post-conviction relief as a matter of

6 The State argues that Lafferty’s claim also fails because
there is no constitutional right to effective assistance of
counsel in post-conviction proceedings. 	Coleman v. Thompson, 501
U.S. 722, 755 (1991). 	While this is true, we decline to rely on
this principle as an alternative basis for our holding because
the legislature has created a statutory right to post-conviction
counsel under Utah Code section 78-35a-202. 	Menzies v. Galetka,
2006 UT 81, ¶¶ 82, 84, 150 P.3d 480. 	Further, we have yet to
resolve whether the Utah Constitution provides a right to
effective counsel in a post-conviction proceeding. 	Id. 	Contra
Hutchings v. State, 2003 UT 52, ¶ 20, 84 P.3d 1150. 	Because
Lafferty’s claim of ineffective post-conviction counsel is
procedurally barred and fails on other grounds, we have no
occasion to consider these issues here.
No. 20060201 	18
law. 6 	As we discussed in our ineffective assistance of counsel
analysis, the ABA guidelines do not constitute the “minimum
requirements” for effective defense counsel. 	See supra ¶¶ 32-35.
While the United States Supreme Court and this court have
considered the ABA guidelines to ascertain whether counsel acted
reasonably under the standard for ineffective assistance
articulated in Strickland, see Wiggins v. Smith, 539 U.S. 510,
524 (2003); Taylor v. State (Taylor II), 2007 UT 12, ¶¶ 49-51,
156 P.3d 739, noncompliance with the ABA guidelines is not, by
itself, grounds for reversal.
IV. 	NEW EVIDENCE REGARDING LAFFERTY’S COMPETENCE
¶56 	Lafferty next argues that his conviction should be
overturned because of newly discovered evidence. 	Specifically,
he alleges that Dr. Stephen Golding, a forensic psychologist who
testified that Lafferty was situationally competent to stand
trial, reneged on the theory of situational competence while
testifying in a later, unrelated case. 	The PCRA affords a
petitioner relief when “newly discovered material evidence exists
that requires the court to vacate the conviction or sentence,”
subject to several conditions. 	Utah Code Ann. § 78-35a-104(1)(e)
(2002). 	The statute names four conditions that must be met to
vacate a conviction: 	(1) The evidence must be unknown at the
time of trial and undiscoverable “through the exercise of
reasonable diligence”; (2) the evidence must “not [be] merely
cumulative of evidence” that was known at trial; (3) the evidence
must not be “merely impeachment evidence”; and (4) when “viewed
with all the other evidence,” the evidence must demonstrate that
“no reasonable trier of fact could have found the petitioner
guilty of the offense or subject to the sentence received.” 	Id.

19 	No. 20060201
¶57 	The State moved for summary judgment, arguing that
Lafferty failed to satisfy these conditions, and the district
court granted the motion. 	We agree that summary judgment was
appropriate because Lafferty failed to provide a transcript of
Dr. Golding’s new testimony, a transcript of Golding’s testimony
at the Lafferty trial, a comparison of the two, or an explanation
of how the new evidence could have been used. 	Given Lafferty’s
inexplicable failure to provide any evidence in support of his
claim, it was impossible for the district court to do anything
but grant the State’s motion. 	See Utah Code Ann. § 78-35a-105
(2002) (“The petitioner has the burden of pleading and proving by
a preponderance of the evidence the facts necessary to entitle
the petitioner to relief.”).
¶58 	In any event, even assuming that Dr. Golding reneged on
his “situational competence” theory, Lafferty’s claim that the
new evidence entitles him to a new trial nevertheless fails
because the alleged newly discovered testimony constituted mere
impeachment evidence. 	Lafferty’s competence was highly contested
prior to both criminal trials. 	He received four competency
evaluations prior to his first trial. 	State v. Lafferty
(Lafferty III), 2001 UT 19, ¶¶ 20-21, 20 P.3d 342. 	Prior to his
second trial in November 1992, the court found him incompetent as
a result of the testimony and evaluation of three mental health
professionals. 	Id. ¶ 23. 	In a competency hearing in February
1994, at which Dr. Golding and Dr. Noel C. Gardner testified, the
court found Lafferty competent to stand trial. 	Id. 	During jury
selection, Lafferty’s competence was again called into question
because of verbal and physical outbursts in the courtroom. 	Id.
¶ 24. 	All eight experts that had previously examined Lafferty
were asked to reevaluate his competence in a March 14, 1996
competency hearing. 	Id. 	All four experts for the State,
including Golding, found Lafferty competent to stand trial. 	Id.
¶ 25. 	Three experts for the defense found him incompetent, and
one expert could not determine competence without further
evaluation. 	Id. 	In view of this evidence, the trial court found
Lafferty competent to stand trial. 	Id.
¶59 	Because Lafferty’s competence was contested, we are
particularly cognizant of the importance of the reliability of
Dr. Golding’s competency evaluation. 	In his 1994 deposition,
Golding articulated the idea of situational competence. 	Golding
found “some of the aspects of Mr. Lafferty’s interpersonal style
that could under certain circumstances in certain situations
cause some degree of compromise of . . . his competency.”
Golding refrained from diagnosing Lafferty as psychotic or
delusional, but determined that in certain legal contexts he
could be manipulated because of his degree of “ridigity[,] . . .

No. 20060201 	20
obsessionalism, . . . self focus and extremism, . . .
suspiciousness, . . . and emotionality.” 	Because of these
traits, Golding testified that “[i]f he feels like people are
putting him down, if he feels like the system is not dealing with
him in a perfectly straight way, he becomes very emotional about
it, and I think not to his own best interests.” 	In Golding’s
view, certain combinations of personality traits can cause a
defendant to act against his own best interest in a legal
context; Golding referred to this as a kind of “situational
competence.” 	Consequently, Golding reasoned that Lafferty had
“certain character traits that would require a non-randomly
chosen defense counsel.” 	In part because Lafferty had a good
relationship with his counsel, Mr. Esplin, Golding determined
that he was competent to proceed with trial.
¶60 	According to Lafferty, Dr. Golding testified in an
unrelated and subsequent Utah criminal case, State v. Mitchell,
that the defendant in that case “could not be situationally
competent and that theory was an inaccurate theory.” 	As
previously discussed, Lafferty provided neither documentation
supporting this claim nor any specific information about
Golding’s subsequent testimony. 	Interpreting Lafferty’s claim in
a light most favorable to Lafferty, we would assume that Golding
disavowed the theory of situational competence to such a degree
that if he were to reevaluate Lafferty, situational competence
would no longer factor into his determination. 	Even assuming
that posture, however, the newly discovered evidence merely
impeaches Golding’s credibility. 	See Wickham v. Galetka, 2002 UT
72, ¶ 14, 61 P.3d 978. 	Moreover, in light of the fact that three
other experts had found Lafferty competent to stand trial, the
newly discovered evidence does not dictate a different competency
determination, let alone a different trial result. 	Consequently,
Golding’s subsequent testimony fails to meet two of the four
statutory requirements under Utah Code section 78-35a-104(1)(e)
for vacating a conviction because of newly discovered evidence.
Therefore, the post-conviction court properly rejected his claim.
V. 	CONFLICT OF INTEREST
¶61 	Lafferty finally argues that his trial counsel was
laboring under a conflict of interest because of his prior
representation of Lafferty’s brother and co-defendant Dan.
Lafferty asserts that he was not competent to waive his Sixth
Amendment right to conflict-free counsel and that the trial court
therefore erred in allowing the representation.
¶62 	The right to counsel includes the right to counsel free
from conflicts of interest. 	Taylor v. State (Taylor II), 2007 UT

21 	No. 20060201
12, ¶ 123, 156 P.3d 739. 	To demonstrate that his counsel had a
conflict of interest that infringed his constitutional rights,
Lafferty must show that “‘an actual conflict of interest
adversely affected his lawyer’s performance.’” 	Id. (quoting
State v. Taylor (Taylor I), 947 P.2d 681, 686 (Utah 1997));
Strickland v. Washington, 466 U.S. 668, 692 (1984). 	To establish
an actual conflict, Lafferty must demonstrate that “‘counsel was
forced to make choices advancing other interests to the detriment
of his client.’” 	Taylor II, 2007 UT 12, ¶ 124 (quoting United
States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998)). 	In
cases where an actual detrimental conflict has been established,
we will presume prejudice. 	Strickland, 466 U.S. at 692. 	As
applied here, the relevant question is whether Lafferty’s trial
counsel was forced by his prior representation of Dan to make
choices that advanced Dan’s interests to Lafferty’s detriment.
¶63 	Lafferty fails to make this showing. 	Dan’s case was
tried eleven years prior to Lafferty’s second trial. 	We held in
Gardner v. Holden, 888 P.2d 608, 620 (Utah 1994), that when the
trial against a co-defendant arising from the same criminal
incident has concluded by the time an attorney is appointed to
represent a capital murder defendant, no conflict exists in the
representation. 	Thus, the serial representation at issue here is
not enough to establish an unconstitutional conflict of interest.
¶64 	Further, Lafferty proffered no factual support to show
that trial counsel made any decisions or relied on any trial
strategies that advanced Dan’s interests to Lafferty’s detriment.
In fact, the record suggests that his trial counsel did just the
opposite. 	During Lafferty’s retrial, counsel called Dan as a
witness and obtained an admission from Dan that he, rather than
Lafferty, physically committed both murders. 	Counsel then relied
on Dan’s testimony to vigorously argue that Lafferty should not
suffer a more severe punishment than Dan, who had not received
the death penalty. 	State v. Lafferty (Lafferty III), 2001 UT 19,
¶ 15 n.8, 20 P.3d 342. 	If anything, these facts indicate that
trial counsel’s joint representation was a boon to Lafferty
rather than a detriment. 	We consequently affirm the district
court’s summary judgment on this claim.
CONCLUSION
¶65 	We affirm the post-conviction court, finding that
Lafferty failed to raise a genuine issue for trial on each of the
claims raised on appeal.
---

No. 20060201 	22
¶66 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.