Ron Lafferty Motion To Stay Appeals in Federal Court

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 1 of 37
Jon M. Sands
Federal Public Defender
Therese Michelle Day (Georgia Bar No. 213810)
David Christensen (Utah Bar No. 13506)
Assistant Federal Public Defenders
850 West Adams Street, Suite 201
Phoenix, Arizona 85007
(602) 382-2816 (telephone)
(602) 889-3960 (facsimile)
therese_day@fd.org
david_christensen@fd.org
Richard P. Mauro (Utah Bar No. 5402)
Local Counsel for Ronald Lafferty
43 East 400 South
Salt Lake City, Utah 84111
(801) 363-9500
(801) 364-3232 (facsimile)
Attorneys for Petitioner
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
RONALD WATSON LAFFERTY,
Petitioner,
v.
Case No. 2:07-CV-322 DB

Amended Motion and Memorandum
in Support of Motion to Stay and Hold
Habeas Proceedings in Abeyance
SCOTT CROWTHER, Warden,

Judge Dee Benson
Respondent.
Death Penalty Case
Petitioner Ronald Watson Lafferty respectfully requests this Court to stay

his federal habeas case and hold it in abeyance while he exhausts certain of his
claims in state court proceedings. Lafferty makes this motion pursuant to Rhines v.
Weber, 544 U.S. 269 (2005), which acknowledges this Courts authority to enter
such an order as a proper use of discretion.
I.
Stay and Abeyance under Rhines v. Weber.

The Antiterrorism and Effective Death Penalty Act (AEDPA) required
Lafferty to exhaust all of his federal constitutional claims in state court (18 U.S.C.
2254(b)(1)(A)) and to file his petition for writ of habeas corpus within a one-year
statute of limitations (18 U.S.C. 2244(d)). This combination of the total
exhaustion requirement and the statute of limitations, however, created the risk of
petitioners who filed mixed petitioncontaining both exhausted and
unexhausted claimsforever losing their opportunity for any federal review of
their unexhausted claims. Rhines, 544 U.S. at 275. The Court acknowledged the
gravity of this problem and the difficulty it has posed for petitioners and federal
district courts alike. Id.
To resolve the concern, the Court endorsed a procedure in which district
courts may stay a federal petitioners habeas case and hold it in abeyance while the
petitioner exhausted his claims in state court. Id. at 275-77; see also Pace v.
2
DiGuglielmo, 544 U.S. 408, 416 (2005) (petitioners with potentially untimely state
petitions should file federal petitions as a means to preserve their rights to federal
review, and then seek stays of federal habeas proceedings pending exhaustion
under Rhines); Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009)
(holding that a court should not address the merits of claims before the defendant
has exhausted all available state-court remedies). This practice is rooted in a
district courts traditional authority to stay cases, when appropriate, as a proper
exercise of its discretion. Rhines, 544 U.S. at 276 (citing Landis v. North
American Co., 299 U.S. 248, 254 (1936), and Clinton v. Jones, 520 U.S. 681, 706
(1997)).
In cases subject to the AEDPA, it is proper for a district court to stay a case
and hold it in abeyance if a petitioner can meet certain conditions. First, there must
be good cause for the petitioners failure to exhaust his claims first in state court.
Rhines, 544 U.S. at 277. Second, the claims must not be plainly meritless. Id.
And third, the petitioner must not deliberately engage dilatory tactics. Id. If a
petitioner meets these conditions, a stay of his case does not frustrate the AEDPAs
purpose to reduce delays in the execution of state and federal criminal sentences,
particularly in capital cases. Id. at 276 (quoting Woodford v. Garceau, 538 U.S.
202, 206 (2003)). Laffertys unexhausted claims meet these conditions, as is

established below.
II.
Lafferty Has Good Cause for the Failure to Exhaust His Claims.
Lafferty has several unexhausted claims that he seeks to exhaust in state
court. [S]tay and abeyance is only appropriate when the district court determines
that there was good cause for the petitioners failure to exhaust his claims first in
state court. Rhines, 544 U.S. at 277. These claims are based on the States failure
to preserve and disclose material exculpatory evidence (Claims Three and Four);
the state court not having preserved a complete record of his proceedings (Claims
Five and Thirty-Three); the ineffective assistance of trial and post-conviction
counsel (Claims Seven and Thirty-Three); the ineffective assistance of direct
appeal and post-conviction counsel (Claim Ten and Twenty-Six); and the
ineffective assistance of post-conviction counsel (Claim Eleven).
A.
Lafferty May Show Good Cause for His Failure to Exhaust

Because the State Withheld and Destroyed Material Exculpatory
Evidence.
As established in Claims Three and Four (Dist. Ct. Dkt. 39 at 55-70), the
State committed several errors with regard to the testimony and evidence it
presented at Laffertys trial. See Brady v. Maryland, 373 U.S. 83 (1963); see also
Arizona v. Youngblood, 488 U.S. 51 (1988). The State failed to disclose the prison
4
disciplinary history of, and an agreement to provide benefits to, prosecution

witness Charles Carnes, resulting in Carness false testimony at trial. The State
also altered, failed to preserve, and destroyed forensic evidence.
1.
Carness False Testimony.
The Brady Court held that a defendants due process rights include the right
to learn of, before trial, evidence that is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution. 373 U.S. at 87
(emphasis added). Later, the Court added that [w]hen the reliability of a given
witness may well be determinative of guilt or innocence, non-disclosure of
evidence affecting credibility falls within this general rule. Giglio v. United
States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269
(1959)).
As detailed in Claim Three, Charles Chip Carnes testified against Lafferty,
claiming that Lafferty bragged about killing Brenda Lafferty. (Dist. Ct. Dkt. 39 at
63-67.) Carnes also testified that he was not a problem inmate. (TR ROA1 5446
at 106.) In fact, Carnes had been charged in prison with twenty-six separate
infractions and had been convicted of fifteen of those charges. (Dist. Ct. Dkt. 39 at
63.) Despite available records that existed to impeach Carnes about his claim of
11
TR ROA represents the Record on Appeal for Laffertys second trial.

5
good behavior, the State stood silent and allowed Carness false testimony to go
uncorrected.
Additionally, less than three months after he testified, Carnes was assigned
to a new prison agent, the first assigned to him since his incarceration in 1984.
(Dist. Ct. Dkt. 39 at 63-64.) And, approximately five weeks later, Carnes entered a
Day Reporting program, which allowed inmates to leave the prison. (Dist. Ct.
Dkt. 39 at 64.) The State never disclosed any agreement to provide a benefit to
Carnes in exchange for his testimony.
Carness false testimony was material to the issue of guilt as the State relied
on it to establish that Lafferty killed Brenda Lafferty. Had the State fulfilled its
duty and disclosed Carness disciplinary record and its agreement to assist him in
modifying the conditions of his confinement, Lafferty could have undermined his
credibility and reduced the impact of his testimony on the determination of
Laffertys guilt and sentence.
2.
The Alteration, Mishandling and Destruction of the Drape,

and the Loss of Logbooks.
The State must preserve evidence that might be expected to play a

significant role in the suspects defense. California v. Trombetta, 467 U.S. 479,
488 (1984); see also Brady, 373 U.S. 83. The loss or destruction of material
exculpatory evidence always amounts to a denial of due process. Illinois v. Fisher,
6
540 U.S. 544, 547 (2004) (citing Brady, 373 U.S. 83 and United States v. Agurs,
427 U.S. 97 (1976)). Evidence is material if it possesses an exculpatory value that
was apparent before it was destroyed, and if it is of such a nature that the defendant
cannot obtain comparable evidence by another readily available means. See
Trombetta, 467 U.S. at 489.
As detailed in the amended petition, the drape from Brenda Laffertys
kitchen was recognized by the State as evidence of forensic value and was
subjected to examination and testing. (Dist. Ct. Dkt. 39 at 60-70.) Notes from the
forensic examiner, Martha Kerr, indicate that suspect poss. wiped hands or
weapon on the drape and that it was covered w blood. (Dist. Ct. Dkt. 39 at 61.)
The drape was used as evidence in both of Laffertys trials. Between the two trials,
however, the condition of the drape was altered, portions of the drape were
removed and either lost or destroyed, and it was mishandled in a way that
compromised its evidentiary value.
Kerr, who was not employed by the Utah crime lab at the time of the second
trial, made statements that between the trials the stains on the drape appeared to
have been altered and that the drape was mishandled. (Dist. Ct. Dkt. 39 at 62-63.)
She said it appeared that a stain, which was originally present, had been removed
and a second stain had been added to the drape. (Dist. Ct. Dkt. 39 at 63.) She also
7
stated that the drape was being stored for a period of time at the office of an
assistant attorney general, where she observed it when being prepared for her
testimony at the second trial. (Dist. Ct. Dkt. 39 at 62.) According to Kerr, the
assistant attorney general and personnel at the crime lab were aware of the
alterations to, and possible destruction of, evidence from the drape. (Dist. Ct. Dkt.
39 at 63.) Prior to the second trial, Kerr recommended that additional testing be
done on the drape, which never occurred. (Dist. Ct. Dkt. 39 at 63.)
Additionally, Kerr stated that her evidence logbooks had been lost, requiring
her to recreate her logs. (Dist. Ct. Dkt. 39 at 63.) Kerr has been subpoenaed to
testify in at least one other case regarding claims of evidence destruction,
tampering or misrepresentation. (Dist. Ct. Dkt. 39 at 63.) And she has said she
believes certain documents, reports, logbooks and evidence have been forged,
falsified, manipulated, or destroyed in other criminal cases. (Dist. Ct. Dkt. 39 at
62.)
The drape meets both prongs of the Trombetta test for materiality. First, its
exculpatory value was evident as soon as the drape was observed by crime lab
personnel, as it was noted to have stains that were attributed to the perpetrator who
had wiped his hands or the weapon on it. Evaluation of the evidence could reveal
information about the identity or characteristics of the perpetrator.
8
Second, Lafferty cannot obtain comparable evidence through any other

reasonable means. This kind of forensic evidence is unique. Any change to the
evidence will fundamentally alter it, and its evidentiary value is lost forever.
Additionally, mishandling the evidence either through a break in the chain of
custody or deviation from proper storage and handling procedures will
compromise the integrity of the evidence, rending it unreliable for any possible
inferences of fact. Regardless of this, the State proceeded to present evidence from
the drape, despite its knowledge of its loss of value as a reliable source. (Dist. Ct.
Dkt. 39 at 63.) And the State relied on this evidence in its argument for convicting
Lafferty of the offense. All of this was done in violation of Laffertys right to due
process.
The States failure to disclose material exculpatory evidence provides good
cause to excuse Laffertys failure to fully exhaust his Brady, Youngblood, and
related claims in state court. Lafferty cannot be faulted for failing to present
evidence which the State improperly concealed. See Banks, 540 U.S. at 691-95
(cause is established to overcome procedural default when a state suppresses
material exculpatory evidence). And while counsel for Respondent notified
Laffertys post-conviction counsel of potential problems with forensic evidence, he
did not do so until after the post-conviction appeal had been submitted to the state
9
supreme court for decision. (Dist. Ct. Dkt. 69, Exh. E.) Laffertys post-conviction
counsel could have notified the court of this significant evidentiary change in the
case. Their failure to do so, however, excuses any potential default of this claim.
See Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Trevino v. Thaler, 133 S.Ct.
1911 (2013)2. Laffertys post-conviction counsel has admitted that they failed to
follow up on this notification in any way, and that they had no strategic reason for
not doing this. (Attachment A) (Declaration of Aric Cramer, November 19, 2014,
16.)
B.

Because the State Courts Failed to Preserve a Complete Record of
His Jury Selection.
Issues surrounding jury selection are of great importance to capital cases.

Lafferty has potentially meritorious issues alleging that his constitutional rights
were violated due to the exclusion of at least one juror in violation of Witherspoon
v. Illinois, 391 U.S. 510 (1968), and due to the improper selection of biased jurors
who should have been stricken for cause pursuant to Wainwright v. Witt, 469 U.S.
412 (1985), and Morgan v. Illinois, 504 U.S. 719 (1992). (Dist. Ct. Dkt. 39 at 2502
The cases of Martinez and Trevino, and their impact on overcoming the default
of ineffective assistance of trial counsel claims have been discussed more
extensively in Laffertys prior pleadings. (Dist. Ct. Dkt. 349 at 11-13; Dist. Ct.
Dkt. 366 at 10-13.)
10
58.) Because the voir dire proceeding on March 19, 1996, was never made part of
the record, and may never have been prepared or filed, Lafferty is unable to fully
address his claims related to jury selection until a complete record is compiled.
This gap in the trial court record impacts Laffertys ability to adequately plead the
factual bases for his jury-related claims, including Claim Thirty-Two, regarding
the trial courts erroneous denial of a motion for change of venue (Dist. Ct. Dkt. 39
at 243-49); Claim Thirty-Three, regarding the seating of biased jurors (Dist. Ct.
Dkt. 39 at 250-53), discussed further in the next section; and Claim Thirty-Four,
regarding the trial court erroneously granting the States challenges for cause.
(Dist. Ct. Dkt. 39 at 250-58.)
C.

Because of Ineffective Assistance of His Prior Counsel.
Neither trial counsel, who was also direct appeal counsel, nor state postconviction counsel, effectively represented Lafferty at any stage of his
proceedings. The overall effect of their deficiencies was the denial of his
constitutional right to challenge the States case against him. These failures by
trial, appellate, and state post-conviction counsel establish good cause to stay the
federal habeas proceedings to exhaust his claims.
11
Claims Seven & Thirty-Three

In Claim Seven of his amended petition, Lafferty alleges his trial counsel,
operating under an impermissible conflict, failed to bring Laffertys intent to
exercise his right to self-representation to the trial court. (Dist. Ct. Dkt. 39 at 8186.) This failure by trial counsel resulted in Lafferty being denied a hearing on the
issue, as required by the Sixth Amendment. See Faretta v. California, 422 U.S.
806, 819, 835 (1975). Additionally, this failure resulted in Lafferty being
represented throughout his trial by conflicted counsel. As described in Claim
Eight, Laffertys trial counsel had previously represented Dan Lafferty in his trial
based on the same facts, and put Dan on the stand to testify as to his own version
of the circumstances of the offense. (Dist. Ct. Dkt. 39 at 87-103; Dist. Ct. Dkt. 349
at 21-28.)
In Claim Thirty-Three, Lafferty alleges how his trial counsel failed to
adequately subject potential jurors who had exhibited bias on their questionnaires
to voir dire so that the trial court could properly exclude them from jury service.
(Dist. Ct. Dkt. 39 at 250-53; Dist. Ct. Dkt. 349 at 119-21.) The result of this
failure was that Lafferty was convicted and sentenced by four jurors, accounting
for a full one-third of those on his panel, who appeared to have religious biases,
preconceived opinions about Laffertys guilt, or both. Among the most essential
12
responsibilities of defense counsel is to protect his clients constitutional right to a

fair and impartial jury by using voir dire to identify and ferret out jurors who are
biased against the defense. Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001);
see also MuMin v. Virginia, 500 U.S. 415, 431 (1991) (stating that voir dire
serves the dual purposes of enabling the court to select an impartial jury and
assisting counsel in exercising peremptory challenges). As discussed above, this
prejudicially deficient conduct by trial counsel deprived Lafferty of his right to an
impartial jury. See Morgan v. Illinois, 504 U.S. 719, 727 (1992).
These substantial claims of ineffective assistance of trial counsel are
unexhausted because Laffertys post-conviction counsel unreasonably failed to
raise them to the state court. The failings of post-conviction counsel can establish
cause to overcome default under both federal and state law. The United States
Supreme Court has recognized that ineffective assistance in an initial-review
collateral proceeding can establish cause for the default of a meritorious ineffective
assistance of trial counsel claim. See Martinez, 132 S.Ct. at 1320; see also
Trevino, 133 S.Ct. at 1921. Laffertys post-conviction counsel has admitted that
there was no strategic purpose for their failure to investigate claims related to the
jurors and their biases. (Attachment A, 11-12.)
13
Also, Lafferty had a state statutory right to the effective assistance of postconviction counsel. See Menzies v. Galetka, 150 P.3d 480, 510 (Utah 2006). This
right, which cannot be retroactively denied by the subsequent amendments to the
post-conviction statues, see Julian v. State, 52 P.3d 1168, 1171 (Utah 2002), gives
Lafferty cause before the state court to overcome any default in post-conviction
review of his claims of ineffective assistance of trial counsel. Therefore, Lafferty
has good cause to excuse the failure to exhaust these claims.
Claim Ten
In Claim Ten, Lafferty argues that he received ineffective assistance of
counsel during his direct appeal proceedings because his counsel failed to meet the
ABA Guidelines for the Appointment and Performance of Defense Counsel in
Death Penalty Cases (2003), and failed to preserve grounds for relief that were
apparent from the record. (Dist. Ct. Dkt. 39 at 118-23.) This Court ruled that
several aspects of this claim (examples 2, 6, 7, and 9) were unexhausted because
post-conviction counsel failed properly to plead the claims as ineffective assistance
of counsel claims in Laffertys post-conviction petition3. (Dist. Ct. Dkt. 370 at 153
This Court addressed Laffertys allegation that direct appeal counsel was
deficient for failing to argue that executing someone who was mentally ill when
the crime was committed or who will be mentally ill when executed is
unconstitutional[,] (example 14). (Dist. Ct. Dkt. 370 at 17 (emphasis in
original).) The Court appears to find that the manner in which post-conviction
14
17.) This Court also ruled that Laffertys allegation that direct appeal counsel was
deficient for failing adequately to appeal the general methods of execution by
firing squad or lethal injection (example 12) was defaulted during postconviction proceedings because post-conviction counsel failed to raise the claim in
Laffertys post-conviction appeal. (Dist. Ct. Dkt. 370 at 17.)
These aspects of this claim are as follows:
2)
Direct appeal counsel performed deficiently when they

failed to appeal the denial of the motion regarding death
qualification of the jury venire, failed to appeal the
selection process and jurors selected, and failed to ensure
that the Supreme Court had a complete and full record
and transcripts of the jury selection on direct appeal.
6)

failed to challenge penalty phase instructions, including
but not limited to Instruction No. 2, which prevented the
jurors from considering residual doubt as a mitigating
factor.
counsel pleaded this issue was deficient because they confused mental retardation
with mental illness. Id. at 18. Moreover, post-conviction counsel waived the issue
in the post-conviction appeal. Id. Despite this, the Court found that direct appeal
counsel properly preserved the aspect of the claim addressing the constitutionality
of sentencing someone who was mentally ill when the crime was committed[.]
Id. In light of this, the underlying issue, which is presented in Laffertys habeas
petition as Claim Twenty-Nine is exhausted and ripe for federal review. The court
also found that the future aspect of the claim related to executing Lafferty while he
is mentally ill is an issue that is not yet ripe for review. Id. at 20 (citing Ford v.
Wainwright, 477 U.S. 399 (1986)). Therefore, this aspect of the claim is not the
subject of this amended motion.
15
7)

failed to challenge the courts failure to instruct the jurors
that they did not need to unanimously find the mitigating
factors.
9)

failed to challenge the fact that the jurors were not
required to submit a special verdict form.
12)

failed adequately to appeal the method of execution,
death by firing squad, or death by lethal injection.
As Lafferty demonstrated in his amended habeas petition and Reply II, his
claim of ineffective assistance of appellate counsel is substantial. (Dist. Ct. Dkt.
39 at 118-23; Dist. Ct. Dkt. 349 at 50-86.) In addition to his discussion below,
Lafferty relies on the merits discussion of these aspects of the claim in his federal
habeas petition and in his Reply (Legal Issues): example 6 is addressed under
Claim Eighteen; example 7 is addressed under Claim Nineteen; example 9 is
addressed under Claim Thirteen; and example 12 is addressed under Claim
Twenty-Six. (Dist. Ct. Dkt. 39 at 143-45, 164-70, 194-200); Dist. Ct. Dkt. 173 at
28-30, 39-47, 51-52.) As to example 2, Lafferty cannot adequately address this
claim until there is a complete record of the transcripts of the voir dire
proceedings. Lafferty raised this concern in his federal habeas petition as Claim 5
and further addressed this issue under that enumeration in his Reply II. (Dist. Ct.
Dkt. 39 at 71-76; Dist. Ct. Dkt. 349 at 8-10.)
16
Claim Ten: Example Two

As Lafferty notes above, this aspect of Claim Ten cannot be properly raised
until there is a complete record of the voir dire in Laffertys case. In support of
this aspect of the claim, Lafferty obtained a recent declaration from Michael
Esplin, who served as his trial and appellate counsel. (Attachment B) (Declaration
of Michael D. Esplin, February 26, 2015.) In his declaration, Esplin
acknowledges:
During voir dire it became clear that a large percentage of the jury
pool had prior knowledge of Mr. Lafferty and the case and had
already determined that he was guilty of the crimes. The juror
questionnaires demonstrated that approximately 80% of the jury pool
had prior knowledge of the case and that 60% of those with prior
knowledge of the case had formed an opinion that [Mr.] Lafferty was
guilty. While the trial judge initially granted all of our challenges for
cause based on prior knowledge of the case and bias, once it became
clear that we were running out of prospective jurors, the judge denied
our motions for cause and we were required to exhaust our
peremptory challenges to exclude biased jurors from the venire.
...
I believe that this resulted in biased jurors being seated in Mr.
Laffertys case; and I should have raised this as a claim in his direct
appeal. I had no strategic reason for not raising this as a claim of error
in Mr. Laffertys appeal following his second trial.
(Attachment B, 7-8.)
Lafferty will fully develop this aspect of Claim Ten once he has obtained a
complete record of the voir dire in his case.
17
Claim Ten: Example Six

Direct appeal counsel was ineffective for failing to challenge penalty-phase
Instruction 2, which prevented the jurors from considering residual or lingering
doubt that Lafferty was responsible for the murders as mitigating evidence. During
the penalty phase of Laffertys trial, the jurors were instructed, [I]t is improper for
you to again debate or reconsider the question of the defendants guilt or
innocence. (TR ROA 5096 (Instruction No. 2).) The effect of this instruction
was to prevent the jurors from considering compelling mitigating evidence
presented through the testimony of Laffertys brother, Dan Lafferty (Dan),
during the penalty phase in violation of federal constitutional law which requires
the sentencer to be able to consider any aspect of the defendants character or
record and any of the circumstances of the offense that the defendant proffers as a
basis for a sentence less than death. Lockett v. Ohio, 438 U.S. 586, 604 (1978)
(emphasis added); see also Eddings v. Oklahoma, 455 U.S. 104, 110 (1982).
During the penalty phase, Dan testified that at the scene, while the victims
were still alive, he could tell [that Ron] was very very frightened. . . . [a]nd Ron
turned to me and said, Lets get out of here. (TR ROA 5449 at 76.) Dan told
Lafferty to leave if he had to but that he had things he had to do first[,] [a]nd Im
going to take care of these things now. Id. Dan testified, Ron was kind of
18
frozen in place. Id. Dan then went on to testify that Ron was unable to
participate in the murders and that he alone was responsible for the murders of
Brenda and Erica Lafferty. Id. at 79-81.
This testimony made it clear that Lafferty was not the actual killer of either
victim. Under Utah law, the following statutory mitigating circumstance would
have been directly applicable to the circumstances of these offenses: the
defendant was an accomplice in the homicide committed by another person and the
defendants participation was relatively minor[.] U.C.A. 76-3-207(4)(f). The
court instructed the jurors on this mitigating circumstance (TR ROA 5090
(Instruction No. 7)), but then also instructed them that they could not consider the
testimony of Dan because they were not allowed to again debate or reconsider the
question of the defendants guilt or innocence. (TR ROA 5096 (Instruction No.
2).) The courts actions prevented the jurors from considering compelling
mitigating evidence that Lafferty was not the actual killer of either victim in
violation of the Eighth and Fourteenth Amendments to the United States
Constitution. By limiting the jurors consideration of this important mitigating
circumstance, Lafferty was denied a reliable individualized sentencing
determination. See Lockett, 438 U.S. at 604; see also Eddings, 455 U.S. at 110.
19
Direct appeal counsel was ineffective for failing to raise this claim in state
court. See Strickland v. Washington, 466 U.S. 668, 685-87 (1984); see also Lucey,
469 U.S. at 396-97. Lafferty was prejudiced when this claim was not preserved in
his direct appeal because the jurors were prevented from considering evidence that
could have resulted in a sentence other than the death penalty.
Claim Ten: Example Seven
Direct appeal counsel was ineffective for failing to challenge the courts
refusal to instruct the jurors regarding unanimity. The penalty-phase instructions
failed to inform the jurors that mitigating circumstances did not need to be found
unanimously in order to be given weight in the decision whether to impose the
death penalty. Such an instruction was particularly important in light of the other
instructions which treated the consideration of both aggravating and mitigating
circumstances the same and failed to explain that aggravating circumstances must
be found unanimously.
In penalty-phase Instruction No. 6, the jurors were instructed that they must
weigh the totality of the aggravating circumstances against the totality of the
mitigating circumstances. (TR ROA 5092 (Instruction No. 6).) There is nothing in
this instruction that explains to the jurors that they must find aggravating
circumstances unanimously, or that they do not need to be unanimous in their
20
findings of mitigating circumstances. Therefore, the jurors had no guidance that

the findings of aggravating circumstances were to be treated any differently than
the findings of mitigating circumstances. Similarly, the instructions related to
mitigating circumstances (Instruction No. 7) and aggravating circumstances
(Instruction No. 8) do not include any language related to unanimity. (TR ROA
5090-5088.) Penalty-phase Instruction No. 9 also instructs the jurors that they
must weigh aggravating circumstances against mitigating circumstances, but fails
to inform the jurors that only aggravating circumstances must be found
unanimously by the jurors. (TR ROA 5087.) There is nothing in any of these
instructions that informs the jurors that they are required to be unanimous in their
findings of aggravating circumstances, or that they are not required to find
mitigating circumstances unanimously. From the face of these instructions, it
appears the jurors are required to treat all sentencing evidence exactly the same.
Further confusing the treatment of these sentencing factors is penalty-phase
Instruction No. 12, which states: In order to return a sentence of death, the jurys
verdict must be unanimous in favor of death. (TR ROA 5084 (Instruction No.
12).) This instruction, like all of the other instructions related to sentencing
factors, fails to instruct the jurors that they do not have to be unanimous in their
finding of mitigating circumstances. If anything, this instruction, the only
21
instruction mentioning unanimity, instructs the jurors that they must find all
aggravating and mitigating circumstances unanimously before deciding on a
sentence.
In order to clarify the distinction between the jurors consideration of
aggravating circumstances and mitigating circumstances, trial counsel requested
the following instruction: Your finding as to any aggravating factor must be
unanimous. If any one of you does not believe that a particular aggravating factor
should be considered in this case, then none of you should consider that factor in
reaching your ultimate decision. (TR ROA 4973 (Defendants Proposed
Instruction No. 13).) The trial court denied the request for this instruction. Id.
During the penalty-phase charge conference, trial counsel attempted to correct this
error by taking exception to the courts refusal to instruct the jury that only
aggravating circumstances must be found unanimously. (TR ROA 5456 at 6.) The
court did not change its ruling as to this proposed instruction. Id. Because the
only instruction addressing unanimity, Instruction No. 12, instructed the jurors that
they must be unanimous if they decide to return a death sentence, and because the
other instructions treated both aggravating and mitigating circumstances the same
with regard to weighing, the jurors were ineluctably led to believe that all
22
circumstances, both aggravating and mitigating, must be found unanimously before

reaching a sentencing decision, in violation of Laffertys constitutional rights.
As Lafferty argues in his habeas petition, the circumstances in his case are
similar to those in the case of McKoy v. North Carolina, 494 U.S. 433 (1990).
(Dist. Ct. Dkt. 39 at 169-70.) In McKoy, the United States Supreme Court held
that North Carolinas sentencing scheme, allowing jurors to consider only those
mitigating circumstances they found unanimously when determining whether
aggravating circumstances were sufficient to justify imposing the death penalty,
impermissibly restricted the jurors consideration of mitigating evidence, in
violation of the Eight Amendment. McCoy, 494 U.S. at 444; see also Mills v.
Maryland, 486 U.S. 367, 375 n.7 (1988).
The penalty-phase jury instructions in Laffertys case failed properly to
guide the jurors in their consideration of aggravating and mitigating evidence,
resulting in a sentencing process that was fundamentally unfair. See Furman v.
Georgia, 408 U.S. 238 (1972); see also Hicks v. Oklahoma, 447 U.S. 343, 346
(1980); Estelle v. McGuire, 502 U.S. 62, 72 (1991) (finding that [i]t is well
established that the instruction may not be judged in artificial isolation, but must
be considered in the context of the instructions as a whole and the trial record.)
23
Direct appeal counsel was ineffective for failing to raise this claim in state
court. See Strickland, 466 U.S. at 685-87; see also Lucey, 469 U.S. at 396-97.
Lafferty was prejudiced when this claim was not preserved in his direct appeal
because the jurors were not properly instructed on how to consider aggravating and
mitigating circumstances, which likely prevented them from considering mitigating
evidence that could have weighed against imposing the death penalty.
Claim Ten: Example Nine
Direct appeal counsel performed deficiently when they failed to challenge
the fact that the jurors were not required to submit a special verdict form when
rendering their sentencing decision. The Penalty Phase Verdict Form is comprised
of the following two findings by the jurors:
Count I: Verdict Form A. We, the jury in the above case, unanimously
render a verdict of death.
Count II: Verdict Form A. We, the jury in the above case, unanimously
render a verdict of death.
(TR ROA 5102, 5100). The jurors sentencing verdict provides no information
about which aggravating circumstance they found beyond a reasonable doubt in
order to make Lafferty eligible for the death penalty. It also provides no
information about what mitigating evidence they found, if any.
24
Under Utah law, Lafferty was entitled to have the Utah Supreme Court
automatically review his sentence of death to determine whether the sentence
resulted from error, prejudice or arbitrariness, or whether it was disproportionate.
U.C.A. 76-3-206(2); see also State v. Wood, 648 P.2d 71 (Utah 1981); State v.
Pierre, 572 P.2d 1338 (Utah 1977). Appellate review of death sentences was a key
feature of capital sentencing statutes that were modified following Furman v.
Georgia, 408 U.S. 238 (1972), to make the imposition of capital sentences
constitutionally permissible. See Gregg v. Georgia, 428 U.S. 153, 204-05 (1976)
(finding [t]he provision for appellate review . . . [of a] capital-sentencing system
serves as a check against the random or arbitrary imposition of the death penalty.)
In Utah, automatic review of death sentences is an integral aspect of Utahs overall
capital sentencing scheme that makes its capital sentencing statute constitutionally
compliant. Because the jurors in Laffertys case made no findings with regard to
aggravating and mitigating circumstances, there was no possible way for the Utah
Supreme Court to review the sentencing evidence to ensure that the sentence
imposed was not constitutionally offensive. This is particularly problematic in
Laffertys case where the jurors were not specifically instructed that they must find
at least one aggravating circumstance unanimously, and where they were not
informed that they did not have to find mitigating evidence unanimously. This
25
problem was exacerbated by other instructions that made the jurors consideration
of sentencing evidence unclear.
Because the provision for automatic review of death sentences is an integral
part of Utahs capital sentencing process, the verdict form in Laffertys case
prevented the Utah Supreme Court from properly reviewing his death sentence,
undermining the constitutionality of Laffertys death sentence. It was impossible
for the Utah Supreme Court to fulfill its independent duty to ensure the
constitutionality of Laffertys death sentence without having this relevant evidence
available to it.
Direct appeal counsel was ineffective for failing to challenge the failure to
use a special verdict form, listing the aggravating and mitigating evidence the
jurors used in their sentencing calculus. See Strickland, 466 U.S. at 685-87; see
also Lucey, 469 U.S. at 396-97. Lafferty was prejudiced when this claim was not
preserved in his direct appeal because he was denied the full benefit of the capital
sentencing scheme where there was no available evidence related to his sentence
for the Utah Supreme Court to review to ensure that his sentence was not imposed
in violation of the Eighth Amendment.
26
Claim Ten: Example Twelve

Direct appeal counsel performed deficiently when they failed adequately to
appeal the constitutionality of Laffertys death sentence in light of available
methods of execution under Utah law. See Strickland, 466 U.S. at 685-87; see also
Lucey, 469 U.S. at 396-97. Lafferty was prejudiced when this claim was not
preserved in his direct appeal because all available methods of execution violate
the Eighth Amendment prohibition against cruel and unusual punishments.
Glossip v. Gross, 576 U.S. _____ (2015), 2015 U.S. LEXIS 4255, at *75-76
(Breyer, J., dissenting).
Lafferty relies on the arguments he made in his federal habeas petition and
replies, addressing Claims 10 and 26 (Dist. Ct. Dkt. 39; Dist. Ct. Dkt. 173; Dist.
Ct. Dkt. 349), as well as his argument addressing the underlying issue in Claim 26
below.
Conclusion
Claim Ten is a meritorious claim that addresses issues that were clear from
the trial record and should have been framed in the PCR petition as ineffectiveassistance-of-appellate-counsel claims in the first instance. As this Court ruled, the
only reason this claim was not properly preserved in state court was the
ineffectiveness of post-conviction counsel. (Dist. Ct. Dkt. 370 at 15-17.) Because
27
Lafferty had a state statutory right to the effective assistance of post-conviction

counsel, Lafferty has good cause to excuse the failure to exhaust this claim.
Menzies, 150 P.3d at 510.
Claim Eleven
In Claim Eleven, Lafferty argued that his post-conviction counsel were
ineffective when they failed to: meet the ABA Guidelines for the Appointment
and Performance of Defense Counsel in Death Penalty Cases (ABA Guidelines);
identify preserved grounds for relief; adequately allege claims of ineffective
assistance of trial and appellate counsel to preserve other grounds for relief; raise
instances of fundamental and structural error apparent from the record; and allege
claims that would have otherwise provided the court with an opportunity to review
other claims on the merits. (Dist. Ct. Dkt. 39 at 130.)
This Court found that the only aspect of this claim that has been exhausted is
the first allegation that due to time and money constraints, post-conviction counsel
were rendered ineffective and were not able to comply with the ABA Guidelines.
(Dist. Ct. Dkt. 370 at 19.) To the extent that this Court has found this claim is
unexhausted, it is because Lafferty could not have raised a claim against his postconviction counsel while they still represented him in his post-conviction
proceedings. (Dist. Ct. Dkt. 39 at 124.) (citing Rudolph v. Galetka, 43 P.3d 467,
28
468-69 (Utah 2002)).) Moreover, because Utah provided a statutory right to postconviction counsel for capital defendants at the time of Laffertys post-conviction
proceedings and established standards to ensure they would perform competently,
Lafferty should now be allowed to return to state court to present these claims for
consideration. (Dist. Ct. Dkt. 39 at 125-27 (citing Menzies, 150 P.3d at 510-11;
U.C.A. 78-35a-201-202).)
In a recently obtained declaration, Aric Cramer, Laffertys post-conviction
counsel, admitted that he performed deficiently with respect to Laffertys state
capital post-conviction case (PCR). Cramer stated that Laffertys was the first
PCR case he had ever worked on and that he was unprepared for the size of the
record and complexity of the issues. (Attachment A, 6.) Cramer also stated that
at the time he represented Lafferty he was in private practice and had an
extremely heavy caseload that prevented him from devoting the time required to
properly investigate and prepare Laffertys case prior to filing his PCR petition.
Id. at 7-8.
Cramer stated that at the time they filed the PCR petition, there was much
investigation that still needed to be completed to adequately develop and present
his claims[,] and that the file was too large for us to review prior to filing the
PCR petition. Id. at 8-9. Cramer acknowledged that while they had raised
29
several claims related to juror bias, they never attempted to interview the jurors in
Mr. Laffertys case, which would have been necessary to develop these claims.
Id. at 12. Cramer also acknowledged that while they raised a claim challenging
the credibility of one of the States experts at trial, Stephen Golding, Ph.D., they
never attempted to obtain the transcripts of Dr. Goldings testimony . . . [nor did
they] attempt to interview Dr. Golding and get a declaration from him . . . . Id. at
14-15. Therefore, Laffertys state post-conviction petition was filed without
counsel first reviewing the record and performing investigation that was necessary
to develop the claims.
The state post-conviction mitigation investigator, Marissa Sandall-Barrus,
also recently provided a declaration about her work on Laffertys case. SandallBarrus states that due to limited funding and the actions of post-conviction counsel,
[t]he mitigation investigation I conducted in this case was ended prematurely and
was incomplete. (Attachment C) (Declaration of Marissa Sandall-Barrus, June
24, 2014 at 8.) Sandall-Barrus provides a lengthy list of investigation that was
necessary but never completed. Id. at 9. Sandall-Barrus also states that the
limitations on her investigation prevented her from conducting interviews with
family members and others in the preparation of her social history. Id. at 10-11.
30
Because the State of Utah provided Lafferty with a state statutory right to
effective counsel during his post-conviction proceedings, it was required to
implement this right in a manner that comported with federal due process. (Dist.
Ct. Dkt. 39 at 125-126 (citing Menzies, 150 P.3d at 510-11 and Lucey, 469 U.S. at
396.) The appointment of incompetent post-conviction counsel in Laffertys case
rendered his post-conviction proceeding a meaningless ritual. (Dist. Ct. Dkt. 39
at 127 (citing Lucey, 469 U.S. at 394 (quoting Douglas v. California, 372 U.S. 353,
358 (1963)).) This right, which cannot be retroactively denied by the subsequent
amendments to the post-conviction statues, see Julian, 52 P.3d at 1171, gives
Lafferty cause before the state court to overcome any default of his claims of
ineffective assistance of trial and appellate counsel during his post-conviction
proceedings. Therefore, Lafferty has good cause to excuse the failure to exhaust
these claims.
Claim Twenty-Six
In Claim Twenty-six of his amended petition, Lafferty argues that the
methods of execution currently available in Utah, lethal injection and firing squad,
will cause unnecessary pain, torture, and lingering death[,] in violation of the
Eighth Amendment to the United States Constitution. (Dist. Ct. Dkt. 39 at 194-95
(citing Furman v. Georgia, 408 U.S. 238, 241 (1972), Estelle v. Gamble, 429 U.S.
31
97, 102 (1976), Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947),
and In re Kemmler, 136 U.S. 436, 447 (1890)).) Lafferty further argues that he
was incompetent to make a choice between lethal injection and firing squad as the
method of execution that would be employed on him. (Dist. Ct. Dkt. 39 at 19697.)
In the recent case of Glossip, 576 U.S. _____ (2015), the constitutionality of
the use of lethal injection as a method of execution was again challenged as
creating an unacceptable risk of severe pain[ ] in violation of the Eighth
Amendment to the United States Constitution. 2015 U.S. LEXIS 4255, at *7.
Four out of five United States Supreme Court justices found that lethal injection, as
presently administered, violates the Eighth Amendment. Id. In a dissenting
opinion Justice Breyer, joined by Justice Ginsburg, found:
Todays administration of the death penalty involves three
fundamental constitutional defects: (1) serious unreliability, (2)
arbitrariness in application, and (3) unconscionably long delays that
undermine the death penaltys penological purpose. Perhaps as a
result, (4) most places within the United States have abandoned its
use.
I shall describe each of these considerations, emphasizing changes
that have occurred during the past four decades. For it is these
changes, taken together with my own 20 years of experience on this
Court, that lead me to believe that the death penalty, in and of itself,
now likely constitutes a legally prohibited cruel and unusual
punishmen[t].
32
Id. at *75-76 (Breyer, J., dissenting). Justice Breyer stated that if the Court ordered
full briefing on [the] more basic question: whether the death penalty violates the
Constitution[,] then it would be highly likely that the Court would find that the
death penalty violates the Eighth Amendment. Id. at *74, *132. The Courts
treatment of this issue in Glossip provides support for Laffertys argument that the
imposition of the death penalty by any available method of execution violates the
strictures of the Eighth and Fourteenth Amendments, rendering his death sentence
is unconstitutional4.
This Court ruled that Lafferty failed to exhaust this claim during his direct
appeal proceedings. (Dist. Ct. Dkt. 370 at 21.) Because this is a claim of
constitutional magnitude, Laffertys direct appeal counsel was ineffective for
failing properly to raise this claim in Laffertys direct appeal. Moreover, postconviction counsels failure to raise this as a claim of ineffective assistance of
direct appeal counsel during Laffertys post-conviction proceedings amounted to
ineffective assistance of post-conviction counsel. Because Utah provided a
statutory right to post-conviction counsel for capital defendants at the time of
4
This claim raises a general challenge to the constitutionality of the methods of

execution currently available under Utah law. This claim is not intended to be a
challenge to the specific protocols employed by Utah in administering either lethal
injection or the firing squad. Lafferty reserves the right to challenge the specific
execution protocol in place at the time his execution becomes eminent. See Hill v.
McDonough, 547 U.S. 573 (2006).
33
Laffertys post-conviction proceedings, and established standards to ensure they

would perform competently, Lafferty has demonstrated cause for his failure to
exhaust this claim and should now be allowed to return to state court to present this
claim for consideration. See Menzies, 150 P.3d at 510-11; see also U.C.A. 7835a-201-202.
III.
Laffertys Claims are Not Plainly Meritless.

A petitioner must also show that his claims are not without merit. [E]ven if
a petitioner had good cause for [his] failure [to exhaust], the district court would
abuse its discretion if it were to grant him a stay when his unexhausted claims are
plainly meritless. Rhines, 544 U.S. at 277.
Lafferty has asserted unexhausted claims that are potentially meritorious.
Examination of these unexhausted claims contained in his amended petition (Claim
Three, Dist. Ct. Dkt. 39 at 55-67; Claim Four, Dist. Ct. Dkt. 39 at 68-70; Claim
Five, Dist. Ct. Dkt. 39 at 71-76; Claim Seven, Dist. Ct. Dkt. 39 at 81-86; Claim
Ten, Dist. Ct. Dkt. 39 at 118-23; Claim Eleven, Dist. Ct. Dkt. 39 at 124-35; Claim
Twenty-Six, Dist. Ct. Dkt. 39 at 194-200; and Claim Thirty-Three, Dist. Ct. Dkt.
39 at 250-53); in his Reply (Legal Issues), Claim Twenty-Six, Dist. Ct. Dkt. 173 at
51-52; and in his Reply II, Claims Three and Four, Dist. Ct. Dkt. 349 at 2-7; Claim
Five, Dist. Ct. Dkt. 349 at 8-10; Claim Seven, Dist. Ct. Dkt. 349 at 10-16; Claim
34
Ten, Dist. Ct. Dkt. 349 at 50-85; Claim Eleven, Dist. Ct. Dkt. 349 at 86-90; Claim
Thirty-Three, Dist. Ct. Dkt. 349 at 117-24), show that they are not plainly meritless
and that a stay cannot be denied on that basis.
IV.
Lafferty is Not Deliberately Delaying His Proceedings.

Finally, any stay of a mixed petition should not be indefinite. In Rhines, the
United States Supreme Court recommended that district courts should place
reasonable time limits on a petitioners trip to state court and back. 544 U.S. at
278. Lafferty would agree to file any successive petition for post-conviction relief
in the state court and amend his federal habeas petition pursuant to this Courts
future order.
Additionally, Lafferty has not engaged in intentionally dilatory litigation
tactics that would justify denial of a stay. He filed his federal habeas petition, the
amendment, and his replies within the time allowed under federal statutes and this
Courts scheduling orders. He also complied with this Courts scheduling orders
throughout the process of his competency determination. Under these
circumstances, petitioner has not acted to delay the litigation of his habeas claims.
As noted above, any delay in the resolution of petitioners habeas claims is
attributable to failure by the State to meet its Brady and Youngblood obligations, to
35
errors of the state courts, and to the ineffective representation he received through
the course of his state trial, appellate and post-conviction proceedings.
V.
Conclusion.
For the good cause shown herein, Lafferty respectfully requests this Court
grant his motion to stay this case and hold it in abeyance while he exhausts his
claims in state court.
Respectfully submitted this 10th day of July, 2015.
Jon M. Sands
Federal Public Defender
Therese Michelle Day
David Christensen
Office of the Federal Public Defender
for the District of Arizona
/s/ Therese Michelle Day
36
CERTIFICATE SERVICE
I hereby certify that on this 10th day of July, 2015, I electronically filed the
foregoing document to the Clerks Office using the CM/ECF system which sent
notification of such filing to the following registrants:
Thomas B. Brunker
Andrew F. Peterson
Assistant Attorneys General
160 East 300 South, Sixth Floor
P.O. Box 140854
Richard P. Mauro
43 East 400 South
Local Counsel for Mr. Lafferty
/s/Robin Stoltze
Legal Assistant
37
Case 2:07-cv-00322-DB Document 373-1 Filed 07/10/15 Page 1 of 5
Index of Attachments
Lafferty v. Crowther
2:07-CV-322 DB
Amended Motion and Memorandum in Support
Of Motion to Stay and Hold Habeas Proceedings in Abeyance
Item
1.
Attachment A, Declaration of Aric Cramer
2.
Attachment B, Declaration of Michael D. Esplin
3.
Attachment C, Declaration of Marissa Sandall-Barrus
Attachment A
2:07-CV-322 DB
DECLARATION OF ARIC CRAMER

I, Arie Cramer, do declare under penalty of perjury under the laws of the United
States of America that the following statements are true to the best of my knowledge,
information, and belief:
1. I am currently in private practice in the city of St. George, Utah.

2. I was appointed on November 13, 2003 to represent Ronald Lafferty in his state
post-conviction ("PCR") proceedings, following his second trial and direct appeal.
Grant W.P. Morrison was appointed on the same day. Prior to our appointment,
Ronald Yengich had been appointed as Mr. Lafferty's PCR attorney; however, Mr.
Yengich was required to withdraw from the case <lue to a conflict of interest.
3. Mr. Morrison and I remained on the case through the remainder of Mr. Lafferty's
PCR proceedings, including the appeal from the grant of the State's motion for
summary judgment. I served as lead counsel in the case and Mr. Morrison served
as second-chair counsel.
4. At the time we were appointed, the court ordered the amended PCR petition to be
filed by May 17, 2004, which only gave us six months to gather and review the
file, investigate, and prepare and file the petition. Prior to the deadline, I requested
an additional nine months in which to file the PCR petition but the court only
granted an additional four months, making the petition due on October 29, 2004.
5. Mr. Morrison and I visited Mr. Lafferty at the Utah State Prison. Because of Mr.
Lafferty's mental health issues, it was extremely difficult to work with him and
extremely difficult to get any meaningful information from him about the case. As
a result, Mr. Lafferty was unable to assist in any meaningful way in the
preparation of the PCR petition.
6. This was the first capital PCR case I had worked on. It was only after being
appointed to the case that it became clear to me what was required to adequately
investigate and prepare a case in a PCR proceeding. It also quickly became
apparent, given the size of Mr. Lafferty's record as well as the complexity of his
case, that it would be impossible to review the file, investigate, and prepare his
case for filing the amended post-conviction petition within the time allowed by the
court.
7. This was exacerbated by the fact that I was in private practice and carrying an
extremely heavy caseload, including several serious felony cases and one capital
case that went to trial, during the time I represented Mr. Lafferty. After our
appointment to Mr. Lafferty's case, both Mr. Morrison and I had to devote two
full months exclusively to the preparation and trial of two cases: State v. Le Due
and State v. Mark Anthony Ott, a capital murder case. Aelelitionally, shortly after
our appointment to Mr. Lafferty's case, both Mr. Morrison and I were appointed to
represent Troy Kell in his PCR proceedings.
8. Given my demanding caseload, I did not have the time required to properly
investigate and prepare Mr. Lafferty' s case prior to filing his PCR petition. At the
time we filed Mr. Lafferty' s PCR petition, there was much investigation that still
needed to be completed to adequately develop and present his claims.
9. Additionally, at the time we filed the PCR petition, we had not yet been able to
obtain Mr. Lafferty' s complete file or a complete record of his case despite our
attempts to do so. The file and record we did have amounted to twenty banker's
boxes and approximately 15 ,000 pages of documents, which was too large for us
to review in the time we had to prepare prior to filing the PCR petition.
10. In light of these factors, I should have requested another extension of time so that
we could have completed gathering and reviewing the record and completed our
investigation of the issues. There was no strategic reason for not requesting more
time in which to file Mr. Lafferty's PCR petition.
11. Upon my recent review of my work on Mr. Lafferty's case, I realize that I
overlooked some important aspects of investigation that would have been
necessary to properly present certain of Mr. Lafferty's claims.
12. While we raised several constitutional claims related to juror bias in the PCR
petition, we never attempted to interview the jurors in Mr. Lafferty's case, which
would have been necessary to develop these claims. I realize now that without
evidence supporting these claims, it was not possible for Mr. Lafferty to get postconviction relief on these claims. There was no strategic reason for not
conducting juror interviews in Mr. Lafferty's case.
13. Mr. Morrison and I met with Mr. Lafferty's trial and direct appeal lawyer, Michael
Esplin, on one occasion to pick up Mr. Lafferty's file. I also spoke with Mr.
Esplin on the phone on one or two occasions in an attempt to obtain the remainder
of Mr. Lafferty's file. However, I did not spend any significant amount of time
with Mr. Esplin, and never attempted to obtain an affidavit from him about his
work on the case, which would have been necessary to develop several of the
claims we raised in our petition, including claims of ineffective assistance of
counsel at trial and direct appeal. There was no strategic reason for not obtaining
an affidavit from Mr. Esplin about his work on Mr. Lafferty's case.
14. Additionally, in the midst of Mr. Lafferty's PCR proceedings, we discovered that
one of the State's experts in Mr. Lafferty's case, Stephen Golding, Ph.D., had
recently changed his position on his diagnosis of"situational competence." Dr.
Golding testified during Mr. Lafferty's case that Mr. Lafferty was "situationally
competent" because he was able to work well with his attorney, making him, in
Dr. Golding's opinion, competent to stand trial. However, Dr. Golding repudiated
the validity of this diagnosis during his testimony in the case of State v. Brian
David Mitchell (Case No. 031901884).
15. While we raised this as an issue in the PCR petition, we never attempted to obtain
the transcripts of Dr. Golding's testimony in the Mitchell case nor did we ever
attempt to interview Dr. Golding and get a declaration from him stating the change
in his position. I realize now that this would have been necessary to properly
develop this claim. There was no strategic reason for not attempting to get the
transcripts of Dr. Golding's testimony in the Mitchell case and for not attempting
to interview Dr. Golding and getting a declaration from him to submit to the court.
16. Finally, while Mr. Lafferty's PCR appeal was still pending, Mr. Morrison and I
received a letter from Thomas Brunker, an assistant attorney general, informing us
that a former employee of the state crime lab, Martha Kerr, had made allegations
that the state crime lab may have tampered with the evidence in Mr. Lafferty's
case. Despite having raised a claim about missing evidence and/or evidence that
had been tampered with, I never followed up on this letter by interviewing Ms.
Kerr or investigating the matter. I also failed to alert the court to the allegation
and request the opportunity to pursue this matter prior to the court ruling on the
appeal. There was no strategic reason for not doing this.
I declare under penalty of perjury under the laws of the United
foregoing is true and correct.
ic Cramer
Executed this
J1
day of
!J'~ 0014 in St. George, Utah.
Attachment B
2:07-CV-322 DB
DECLARATION OF MICHAEL D. ESPLIN

I, Michael Esplin, do declare under penalty of pe1jury under the laws of the
United States of America that the following statements are true to the best of my
knowledge, information, and belief:
1. I am currently in private practice in the city of Provo, Utah, and own my
own law firm in partnership with Gary Weight.
2. I was initially appointed as standby counsel to Ronald Lafferty and his codefendant, Dan Lafferty, from September through December of 1984. I was
later appointed on September 12, 1985, to represent Ronald Lafferty in his
direct appeal from the conviction of first degree murder and sentence of
death related to his first trial. I subsequently represented Mr. Lafferty in his
first federal habeas proceeding and appeal to the Tenth Circuit, which
resulted in his conviction and sentence being vacated.
3. Upon remand, I was appointed to represent Mr. Lafferty at his second trial as
lead counsel, with Linda Anderson serving co-counsel. I then represented _
Mr. Lafferty in his second direct appeal, along with Margaret Lindsay.
4. I recently reviewed the record in Mr. Lafferty's case. Upon review, I
realized that I overlooked an important constitutional claim that I should
have raised in the direct appeal following Mr. Lafferty's second trial. Due to
the high-profile nature of Mr. Lafferty's case, there was pervasive negative
press coverage about Mr. Lafferty and his case that was highly inflammatory
and prejudicial. I filed a Motion for Change of Venue, prior to Mr.
Lafferty's second trial on June 30, 1994, because I did not think that he
-------------------could-have a-fair trial iftried-in BtahGounty-given-theextensive-coverage-of------ ----th~ case that occurred both in the years leading up to the second trial, as well
as at the time of the second trial.
5. While the trial judge denied our motion, he recognized the possibility of
prospective jurors being biased against Mr. Lafferty and ordered that a larger
jury pool be drawn. Therefore, the jury venire was comprised of
approximately 200 prospective jurors, instead of the normal number of 90
prospective jurors.
6. During voir dire it became clear that a large percentage of the jury pool had
prior knowledge of Mr. Lafferty and the case and had already determined
that he was guilty of the crimes. The juror questionnaires demonstrated that
approximately 80% of the jury pool had prior knowledge of the case and that
60% of those with prior knowledge of the case had formed an opinion that
Lafferty was guilty. While the trial judge initially granted all of our
challenges for cause based on prior knowledge of the case and bias, once it
became clear that we were running out of prospective jurors, the judge
deri.ied our motions for cause and we were required to exhaust our
peremptory challenges to exclude biased jurors from the venire.
7. I believe that this resulted in biased jurors being seated in Mr. Lafferty' s
case; and I should have raised this as a claim in his direct appeal. I had no
strategic reason for not raising this as a claim of error in Mr. Lafferty's
appeal following his second trial.
8. I have also reviewed the transcripts of the penalty phase presentation in Mr.
Lafferty' s case and believe that it was constitutional error not to call at least
one of the mental health witnesses we presented during the merits phase of
trial as a witness during the penalty phase of the trial. Having at least one
testifying expert during the penalty phase was necessary to explain to the
jurors that they could consider evidence of Mr. Lafferty's extensive mental
health issues as mitigating evidence during sentencing even though they had
rejected this evidence as a defense to the crime during the merits phase of
the trial.
9. An expert witness also could have offered the jurors a clear explanation of
what mitigating evidence was and how Mr. Lafferty's mental health issues
were relevant evidence that could serve to mitigate against the imposition of
the death penalty.
10. This would have been especially important because the prosecutor told the
jurors during the penalty phase that while mental health evidence could be
considered mitigating, the jurors had already rejected this during the merits
phase. The prosecutor's statement was misleading because he failed to
explain that even though the jurors rejected the mental health evidence as a
defense during the merits phase, the jurors could still consider it as
mitigating evidence during sentencing.
11.An expert witness could have explained this important distinction to the
jurors. Without an adequate explanation of the concept of mitigation and
---~--
------
how Mr. Lafferty's mental health issues could be considered as compelling

mitigation, the jurors could not have given proper effect to this evidence.
12. I believed that it was error to fail to call at least one of our retained experts
to testify during the penalty phase about the mitigating effect of Mr.
Lafferty's mental health issues. There was no strategic reason for failing to
call one of our existing experts as a witness during the penalty phasE!.
13. I was never contacted by Mr. Lafferty' s post-conviction counsel to discuss
either Mr. Lafferty or the case following his second direct appeal.
I declare under penalty of perjury under the law of the United States that the
-;',,.'/!,
Michael D. :E-splin
-Executed this ,/.cr12-'day of
,~---2015 in Provo, Utah.

I
Attachment C
2:07-CV-322 DB
DECLARATION OF MARISSA
I , Marissa Sandall-Barrus, do declare under penalty of perjury under the laws of
the United States of America that the following statements are true to the best of my
knowledge, information, and belief:
1. I was first appointed as a mitigation investigator in Ron Lafferty's case in
April 2004, during his state post-conviction proceedings. I was retained by
attorneys Aric Cramer and William "Bill" Morrison.
2. When I began the mitigation investigation in Mr. Lafferty's case I was
notified there was a financial cap of $20,000 for investigative expenses.
3. I was initially informed that I would have
with which to work; and
the fact investigator, Karl Hurst, would have the other $10,000 for his
budget. I informed the attorneys that $10,000 was not enough money to
complete a social history background. Ultimately, I was given a budget of
$15,000, leaving $5,000 for the fact investigator.
4. Several months later, Mr. Lafferty refused to work with Mr. Hurst.
According to Mr. Lafferty, his visits with Mr. Hurst were spent arguing
over the principles of the Mormon Church.
5. Mr. Lafferty had also
Mr. Hurst to check into some specific problems
with the evidence in his case, including the "knife pattern" on the curtain
and the possibility that state agents had tampered with the evidence in his
case. To my knowledge, Mr. Hurst never investigated any of these claims,
and stopped working on Mr. Lafferty's case by mid-2004.
6. To my knowledge, the attorneys never hired another fact investigator to
replace Mr. Hurst, nor did they consult with another fact investigator about
Mr. Lafferty's case.
7. At the time, I was not a licensed investigator and was only able to assist
with the mitigation investigation.
8. There were many other tasks that I would have accomplished i f I would
have had access to additional funding. I felt it was my responsibility to
complete the following tasks for his investigation; however, additional
funding was not requested by the attorneys. I had no other choice but to
write a social history report and complete the investigation based on what I
had accomplished to that point. The mitigation investigation I conducted in
this case was ended prematurely and was incomplete.
9. The remaining tasks I would have attempted to accomplish include the

following:
Write a complete timeline of events from the beginning of Mr.

Lafferty's life through the present; including all pre-incident events
and post-incident events.
Interview Mr. Lafferty's family members, including his mother,
children, ex-spouse, siblings, and extended family members, about his
family history and personal and family background, and to obtain
information with regard to his significant relationships, including
marriages, children, and the nature and quality of these relationships.
Interview Mr. Lafferty's second wife, "Becky."
Interview Mr. Lafferty's friends and LDS Church acquaintances who
were present in his life before and after his excommunication from the
Church.
Interview Mr. Lafferty's newly affiliated religious acquaintances from
the School of the Prophets, including Robert Crossfield (The Prophet
Onias), Barry Crowther, David
and David Coronado.
Locate any and all doctrine available that pertained to the teachings of
the School of the Prophets.
Attempt to locate all birth, marriage, death, medical, mental health,
employment, school, military, social security, and criminal records for
Mr. Lafferty, his parents, siblings, children, and extended family
members.
Spend more time in personal interviews with Mr. Lafferty to gain
further information about his family history and background.
Interview the mental health professionals who evaluated and worked
with Mr. Lafferty after his incarceration.
Obtain vital records information regarding his deceased family
members.
Obtain personal items, such as, family photographs, craft work,
certificates, badges, awards, etc.
Research further into Mr. Lafferty's religious beliefs and the religious
beliefs of his parents, including forms of discipline, general rules,
punishments, and the nature of Mr. Lafferty's relationship with his
mother, father, and siblings.
Further investigate Mr. Lafferty's relationship with his other relatives.
Locate someone with knowledge of Mr. Lafferty's "minor" alcohol
and drug use.
As the mitigation specialist, I was responsible for conducting collateral

interviews with family members and others to supplement and corroborate
the information obtained from Mr. Lafferty. Due to the lack of funding,
none of these collateral interviews were accomplished.
prepared a social history report based on information obtained from Mr.
Lafferty, the legal discovery, news articles, and mental health reports.
I declare, under penalty of perjury under the laws of the United States that the
Executed this
day of June
in Dillon, Montana.

Ron Lafferty Motion To Stay Appeals in Federal Court

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Ron Lafferty Motion To Stay Appeals in Federal Court

Uploaded by

Copyright:

Available Formats

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 1 of 37

Case No. 2:07-CV-322 DB

SCOTT CROWTHER, Warden,

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 2 of 37

Petitioner Ronald Watson Lafferty respectfully requests this Court to stay

Stay and Abeyance under Rhines v. Weber.

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 3 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 4 of 37

202, 206 (2003)). Laffertys unexhausted claims meet these conditions, as is

Lafferty May Show Good Cause for His Failure to Exhaust

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 5 of 37

disciplinary history of, and an agreement to provide benefits to, prosecution

Carness False Testimony.

TR ROA represents the Record on Appeal for Laffertys second trial.

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 6 of 37

The Alteration, Mishandling and Destruction of the Drape,

The State must preserve evidence that might be expected to play a

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 7 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 8 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 9 of 37

Second, Lafferty cannot obtain comparable evidence through any other

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 10 of 37

Lafferty May Show Good Cause for His Failure to Exhaust

Issues surrounding jury selection are of great importance to capital cases.

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 11 of 37

Lafferty May Show Good Cause for His Failure to Exhaust

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 12 of 37

Claims Seven & Thirty-Three

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 13 of 37

responsibilities of defense counsel is to protect his clients constitutional right to a

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 14 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 15 of 37

Direct appeal counsel performed deficiently when they

Direct appeal counsel performed deficiently when they

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 16 of 37

Direct appeal counsel performed deficiently when they

Direct appeal counsel performed deficiently when they

Direct appeal counsel performed deficiently when they

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 17 of 37

Claim Ten: Example Two

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 18 of 37

Claim Ten: Example Six

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 19 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 20 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 21 of 37

findings of mitigating circumstances. Therefore, the jurors had no guidance that

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 22 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 23 of 37

circumstances, both aggravating and mitigating, must be found unanimously before

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 24 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 25 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 26 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 27 of 37

Claim Ten: Example Twelve

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 28 of 37

Lafferty had a state statutory right to the effective assistance of post-conviction

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 29 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 30 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 31 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 32 of 37

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 33 of 37

This claim raises a general challenge to the constitutionality of the methods of

Case 2:07-cv-00322-DB Document 373 Filed 07/10/15 Page 34 of 37