Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`November 7, 2022
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`___________________________________________
`
`RALPH LEROY MENZIES,
`
` Petitioner - Appellant,
`
`v.
`
`ROBERT POWELL, Warden of the
`Utah State Penitentiary,
`
` Respondent - Appellee.
`___________________________________________
`
`
`
`
`
`No. 19- 4042
`
`Appeal from the United States District Court
`for the District of Utah
`(D.C. No. 2:03-CV-00902- CVE-FHM)
`____________________________________________
`
`Lindsey Layer, Assistant Federal Public Defender (Jon M. Sands, Federal
`Public Defender, and Eric Zuckerman, Assistant Federal Public Defender,
`with her on the briefs), Phoenix, Arizona, for Petitioner-Appellant.
`
`Erin Riley, Assistant Solicitor General (Sean D. Reyes, Utah Attorney
`General, Andrew F. Peterson and Aaron G. Murphy, Assistant Solicitors
`General, with her on the briefs), Salt Lake City Utah, for Respondent-
`Appellee.
`
`_____________________________________________
`
`Before HARTZ, BACHARACH, and EID, Circuit Judges.
`_____________________________________________
`
`BACHARACH, Circuit Judge.
`_____________________________________________
`
`
`
`
`
`
`
`
`
`

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`Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 2
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`TABLE OF CONTENTS
`
`1. Mr. Menzies’s Murder Conviction and Sentence ............................10
`
`Appellate and Post-Conviction Proceedings ...................................12
`
`Federal Habeas Proceedings ..........................................................13
`
`Standard of Review ......................................................................13
`
`The Utah Supreme Court reasonably rejected Mr. Menzies’s
`claims of ineffective assistance of counsel during the guilt
`phase ...........................................................................................15
`
`2.
`
`3.
`
`4.
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`5.
`
`
`
`Standard for Obtaining Relief Based on Ineffective
`Assistance of Counsel .................................................16
`
`Identification Testimony at Trial ................................17
`
`Photo Arrays .............................................................18
`
`Identification of Objects .............................................18
`
`Lineup .......................................................................19
`
`The Utah Supreme Court’s Disposition of Claims
`Involving Identification Testimony ..............................19
`
`Mr. Menzies’s Challenges to the Utah Supreme
`Court’s Decision .........................................................20
`
`5.1
`
`5.2
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`5.2.1
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`5.2.2
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`5.2.3
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`5.3
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`5.4
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`
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`5.4.1
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`The Photo Arrays ........................................................21
`
`5.4.1.1 Deficiency ................................................................. 21
`
`5.4.1.1.1 Statement that a Suspect was Already in Custody ..........21
`
`5.4.1.1.2 Second Viewing of the Photo Array .............................22
`
`5.4.1.1.3 Lack of an Admonition ................................................24
`
`5.4.1.1.4 False Dichotomy .........................................................25
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`2
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`

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`6.
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`
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`7.
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`5.4.1.2
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`5.4.2
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`5.4.3
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`5.4.4
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`5.5
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`5.5.1
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`5.5.2
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`5.5.3
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`5.5.4
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`5.5.4.1
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`5.5.4.2
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`Prejudice ....................................................................26
`
`The Lineup ................................................................. 27
`
`The Identification of Objects .......................................28
`
`Failure to Investigate the Account of Mr. Larrabee
`and His Girlfriend .......................................................33
`
`Failure to Challenge the Testimony of Walter
`Britton .......................................................................35
`
`The Utah Supreme Court’s Disposition of the Claim .....36
`
`Mental- Health Evidence ..............................................37
`
`Benefits from Testimony .............................................40
`
`Mr. Benitez’s Statement ..............................................43
`
`Procedural Default ......................................................43
`
`Merits ........................................................................50
`
`The tria l court’s instruction on reasonable doubt constituted a
`reasonable application of Supreme Court precedent and
`conformed to the Constitution ......................................................51
`
`6.1
`
`Reasonableness of the Utah Supreme Court’s
`Decision ....................................................................52
`
`
`
`6.1.1
`
`6.1.2
`
`6.2
`
`Substantial Doubt ......................................................53
`
`Willingness to Act ......................................................56
`
`Absence of a Constitutional Violation ..........................58
`
`
`The Utah Supreme Court reasonably rejected Mr. Menzies’s
`claim of ineffective assistance of counsel during sentencing ...........59
`
`7.1
`
`
`
`7.2
`
`The Evidence Presented in State Court ........................59
`
`Mr. Menzies’s Theories of Ineffectiveness ..................60
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`3
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`

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`8.
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`9.
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`7.3
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`7.4
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`7.5
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`7.6
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`7.7
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`The Attorney’s Duty to Investigate ..............................60
`
`Bar to Considering Evidence Presented in Federal
`Court .........................................................................61
`
`Delayed Investigation of the Mitigating Evidence ........64
`
`Failure to Investigate Other Mitigating Evidence .........65
`
`Failure to Present Evidence of Organic Brain
`Damage ......................................................................67
`
`The Utah Supreme Court acted reasonably in rejecting Mr.
`Menzies’s challenges to the admissibility of documents from
`his prison file ..............................................................................70
`
`8.1
`
`The Utah Supreme Court reasonably concluded that
`introduction of mental-health evaluations had not
`violated the Fifth Amendment ......................................70
`
`Introduction of Mr. Menzies’s prison file did not
`deny the right to confrontation, constitute a denial
`of due process, or entail cruel and unusual
`punishment ................................................................. 77
`
`Confrontation Clause ..................................................77
`
`Due Process ................................................................79
`
`Cruel and Unusual Punishment ....................................80
`
`
`
`8.2
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`8.2.1
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`8.2.2
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`8.2.3
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`
`
`9.2
`
`The Utah Supreme Court reasonably concluded that the trial
`court had not violated the Constitution by relying on uncharged
`aggravating circumstances ............................................................81
`
`9.1
`
`Utah law allowed the prosecution to allege
`additional aggravating circumstances at sentencing .......82
`
`Mr. Menzies obtained adequate notice of the
`aggravating circumstances bearing on the sentence .......84
`
`4
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`

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`9.3
`
`9.4
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`
`
`The prosecution did not need to prove each
`aggravating circumstance beyond a reasonable
`doubt .........................................................................89
`
`The Utah Supreme Court didn’t violate any
`constitutional rights by omitting discussion of two
`aggravating circumstances from the analysis of
`harmless error ............................................................90
`
`
`10. The Utah Supreme Court reasonably rejected Mr. Menzies’s
`challenge to the constitutionality of the aggravating
`circumstances ..............................................................................91
`
`10.1
`
`Aggravating Circumstances for Murders that are
`Heinous, Atrocious, and Cruel .....................................92
`
`Merits ........................................................................93
`
`Consideration of Mitigating Factors .............................96
`
`Sufficiency of the Evidence on Aggravating
`Circumstances ...........................................................96
`
`Reasonable jurists could reject Mr. Menzies’s claim
`involving reliance on duplicative aggravating
`circumstances .............................................................97
`
`
`10.1.1
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`10.1.2
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`10.2
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`10.3
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`11.2
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`11.3
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`
`
`
`11.
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`
`
`
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`In rejecting Mr. Menzies’s challenges involving errors in the
`trial transcript, the Utah Supreme Court reasonably applied
`Supreme Court precedent and found the pertinent facts ..................99
`
`11.1
`
`The Utah courts provided the parties with an
`opportunity to correct errors in the trial transcript ...... 100
`
`The trial court found no constitutional violation,
`and the record contained two versions of the
`transcript ................................................................. 101
`
`The Utah Supreme Court upheld the trial court’s
`ruling that the transcript was accurate enough for a
`meaningful appeal .................................................... 101
`
`5
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`

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`The Utah Supreme Court’s decision was not based
`on an unreasonable application of clearly
`established federal law .............................................. 102
`
`The Utah Supreme Court did not base its decision
`on an unreasonable determination of fact .................. 106
`
`Reliance on the Docketing Statement ........................ 106
`
`Failure to Provide a Sufficient Transcript of Voir
`Dire ......................................................................... 108
`
`Omission of a Conference Outside the Jury’s
`Presence ................................................................... 112
`
`11.4
`
`11.5
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`11.5.1
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`11.5.2
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`11.5.3
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`
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`11.5.4
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`11.5.5
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`Additions by the Note Reader .................................... 115
`
`Errors Involving Numbers ........................................ 118
`
`12. A certificate of appealability is unwarranted on the
`admissibility at trial of Mr. Britton’s testimony from the
`preliminary hearing . .................................................................. 122
`
`12.1
`
`
`
`Standard for a Certificate of Appealability ................ 123
`
`Mr. Britton’s Unavailability ..................................... 124
`
`
`
`12.2
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`12.3
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`Reliability ................................................................ 125
`
`
`13. Conclusion ................................................................................ 126
`
`
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`6
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`

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`Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 7
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`Mr. Ralph Leroy Menzies was convicted of first-degree murder in
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`Utah state court and sentenced to death. The Utah Supreme Court affirmed
`
`the denial of his motion for a new trial, State v. Menzies, 845 P.2d 220,
`
`242 (Utah 1992), and then affirmed his conviction and death sentence,
`
`State v. Menzies, 889 P.2d 393 , 396 (Utah 1994). Mr. Menzies sought post -
`
`conviction relief, but the state courts rejected his claims. Menzies v.
`
`Galetka, 150 P.3d 480, 489 (Utah 2006); Menzies v. State, 344 P.3d 581,
`
`588 (Utah 2014).
`
`The state court decisions led Mr. Menzies to seek habeas relief in
`
`federal court. The federal district court denied relief, prompting Mr.
`
`Menzies to appeal. We affirm.
`
`In this appeal, we address eight issues:
`
`Ineffective assistance of trial counsel in the guilt phase. To
`establish ineffective assistance of counsel, a criminal defendant
`must show that his attorney’s performance was deficient and
`prejudicial. Mr. Menzies argued to the Utah Supreme Court that
`his counsel had been deficient by failing to
`
`move for suppression of identification testimony,
`
`investigate the accounts from prosecution witnesses
`identifying Mr. Menzies, and
`
`challenge the admissibility of testimony from the
`preliminary hearing.
`
`•
`
`
`
` •
`
`
`
` •
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`Although these three challenges weren’t made, Mr. Menzies’s
`trial counsel undermined the prosecution’s case in other ways.
`Counsel pointed out that the witnesses couldn’t definitively
`identify Mr. Menzies and challenged the credibility of the
`
`7
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`1.
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`

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`prosecution’s witnesses. Given these challenges to the
`prosecution’s case, the Utah Supreme Court concluded that trial
`counsel’s performance was neither deficient nor prejudicial.
`Habeas relief is warranted only if this conclusion constituted
`an unreasonable application of the United States Supreme
`Court’s precedent. Under this standard, habeas relief was
`unwarranted because the state appellate court had reasonably
`applied the United States Supreme Court’s precedents.
`
`Jury instruction on reasonable doubt. Under the Fourteenth
`Amendment’s Due Process Clause, a trial court must instruct
`the jury that the prosecution bears the burden of proving guilt
`beyond a reasonable doubt. The trial court gave this
`instruction, adding that the doubt must be substantial and real
`rather than imaginary. The Utah Supreme Court determined that
`this additional explanation hadn’t tainted the jury instruction.
`This determination constituted a reasonable application of the
`United States Supreme Court’s precedents .
`
`Ineffective assistance of counsel in the sentencing phase. At
`the sentencing phase, counsel’s performance may be deficient
`if the attorney fails to conduct a thorough investigation of
`mitigating circumstances. Mr. Menzies’s attorneys conducted a
`reasonably thorough investigation. So the Utah Supreme Court
`reasonably rejected Mr. Menzies’s claim of ineffective
`assistance in the sentencing phase.
`
`Introduction of statements made during psychiatric
`evaluations. The United States Supreme Court has not
`interpreted the Fifth Amendment to bar admission of a
`defendant’s un-Mirandized statements made during psychiatric
`evaluations preceding the charged crime. The psychiatric
`evaluations—conducted without Mirand a warnings—had
`preceded the alleged murder. So the Utah Supreme Court
`reasonably rejected Mr. Menzies’s Fifth Amendment challenge
`to the introduction of his statements for his psychiatric
`evaluations.
`
`Introduction of Mr. Menzies’s prison file. The trial court
`allowed the prosecution to use Mr. Menzies’s prison file at the
`sentencing stage, and the Utah Supreme Court upheld this
`ruling. And the Supreme Court has not
`
`
`8
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`2.
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`3.
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`4.
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`5.
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`

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`•
`
`•
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`applied the Sixth Amendment’s Confrontation Clause to
`sentencing proceedings or
`
`found a violation of due process from the introduction of
`false or misleading prison records.
`
`Given the absence of governing precedent, the Utah Supreme
`Court acted reasonably in concluding that the introduction of
`the prison file hadn’t violated Mr. Menzies’s rights to
`confrontation or due process.
`
`Notice of aggravating circumstances. A defendant has a right
`to notice of aggravating circumstances. The Utah Supreme
`Court concluded that the State had satisfied this right through
`the statute identifying the aggravating circumstances that
`render a defendant eligible for the death penalty. In reaching
`this conclusion, the Utah Supreme Court reasonably applied the
`United States Supreme Court’s precedents. Under those
`precedents, a state appeals court could reasonably conclude that
`notice could come from Utah’s statutory list of aggravating
`circumstances.
`
`Duplication of aggravating circumstances. In identifying
`aggravating circumstances warranting a death sentence, the
`prosecution must provide a meaningful distinction between
`capital and non- capital murders.
`
`The jury found that Mr. Menzies was eligible for the death
`penalty because he had committed a murder in connection with
`a robbery and an aggravated kidnapping. After the jury found
`Mr. Menzies eligible for the death penalty, the trial court found
`duplicative aggravating circumstances involving pecuniary gain
`and robbery. The Utah Supreme Court rejected Mr. Menzies’s
`characterization of these duplicative aggravating circumstances
`as a violation of the Eighth Amendment. This conclusion
`constituted a reasonable application of the record and the
`United States Supreme Court’s precedents.
`
`Errors in the trial transcript. A criminal defendant has a
`constitutional right to a record that’s reliable enough to provide
`meaningful appellate review. The transcript of Mr. Menzies’s
`trial contained errors, but Mr. Menzies did not show prejudice
`to his appeal. Given this failure to show prejudice, the Utah
`
`6.
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`7.
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`8.
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`9
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`

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`Supreme Court reasonably rejected Mr. Menzies’s claim
`involving errors in the trial transcript.
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`Mr. Menzies has not only presented these appellate arguments but
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`
`
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`also moved to expand the certificates of appealability. In part of this
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`motion, Mr. Menzies argues that he should be allowed to appeal the denial
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`of his claim involving the introduction of testimony from a preliminary
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`hearing. 1 We reject this argument, concluding that no jurist could
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`reasonably credit this claim. So we deny Mr. Menzies’s motion to expand
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`the certificates of appealability.
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`1.
`
`Mr. Menzies’s Murder Conviction and S entence
`
`This case grew out of the 1986 disappearance of M rs. Maurine
`
`Hunsaker. At a gas station where Mrs. Hunsaker had been working, law
`
`enforcement had found an empty cashier’s booth and customers waiting to
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`pay. Cash was missing from the register.
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`Two days after M rs. Hunsaker had disappeared, her corpse was found
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`in a wooded area outside Salt Lake City. S omeone had strangled Mr s.
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`Hunsaker and slashed her throat.
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`Suspicion quickly turned to Mr. Menzies. On the morning after Mrs.
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`Hunsaker’s disappearance, two teenagers saw a man and a woman walking
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`into the wooded area. The teenagers heard a woman scre am and then saw
`
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`In this motion, Mr. Menzies also requested expansion of the
`1
`certificates of appealability to encompass errors in the trial transcript. The
`Court previously granted this part of the motion.
`
`10
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`Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 11
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`the man return ing to his car. After hearing reports about Mr s. Hunsaker’s
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`body, one of the teenagers (Tim Larrabee) contacted the police and
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`described the man.
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`Based on Mr. Larrabee’s description, the police created a composite
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`drawing of the man and picked three photographs of possible matches,
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`including that of Mr. Menzies. The police showed these three photographs
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`and three others to Mr. Larrabee. From these photographs, Mr. Larrabee
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`picked the one of Mr. Menzies and said that he looked like the man in the
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`wooded area.
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`The police also obtained other incriminating evidence showing
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`(1) Mrs. Hunsaker’s presence in Mr. Menzies’s car and apartment, (2)
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`Mr. Menzies’s possession of M rs. Hunsaker’s identification cards, and (3)
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`Mr. Menzies’s confession to the murder.
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`First, the police found Mr s. Hunsaker’s thumbprint in the car that
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`Mr. Menzies had been driving. And in Mr. Menzies’s apartment, officers
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`found
`
`•
`
`•
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`roughly the same amount of cash ($116) that had been missing
`from the gas station and
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`Mrs. Hunsaker’s purse.
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`Along with the cash and purse, the police matched fibers found on Mrs.
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`Hunsaker’s clothing to carpet fibers in Mr. Menzies’s apartment.
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`11
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`Second, the police found evidence that Mr. Menzies had discarded
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`Mrs. Hunsaker’s identification cards. As the police were investigating Mrs .
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`Hunsaker’s disappearance, they arrested Mr. Menzies on an unrelated
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`charge. Upon his booking into the jail, he raced into a changing room. In
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`that room, an officer later found Mr s. Hunsaker’s identification cards. And
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`Mrs. Hunsaker’s social security card turned up in the belongings of Mr.
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`Menzies’s girlfriend.
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`Third, a fellow jail inmate testified that Mr. Menzies had confessed
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`to killing Mr s. Hunsaker. According to the inmate, Mr. Menzies had
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`admitted cutting her throat.
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`A jury found Mr. Menzies guilty of capital homicide and aggravat ed
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`kidnapping. After this finding, Mr. Menzies waived his right to sentencing
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`by a jury, opting for the trial judge to decide the sentence. So the trial
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`judge conducted the penalty phase, obtaining additional evidence and
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`eventually sentencing Mr. Menzies to death.
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`2.
`
`
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`Appellate and P ost-Conviction Proceedings
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`After sentencing, Mr. Menzies moved for a new trial on the ground
`
`that the transcript contained too many errors for appellate review. The trial
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`court denied the motion, and the Utah Supreme Court affirmed the denial
`
`of relief as to the transcription errors. State v. Menzies, 845 P.2d 220, 24 2
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`(Utah 1992). Mr. Menzies then appealed on the merits, and the Utah
`
`12
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`

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`Supreme Court affirmed the conviction and sentence. State v. Menzies, 889
`
`P.2d 39 3, 396 (Utah 1994).
`
`Following the direct appeal, Mr. Menzies sought post- conviction
`
`relief in state court, a lleging ineffective assistance of counsel. The state
`
`trial court denied post-conviction relief. The Utah Supreme Court first
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`remanded for further proceedings, Menzies v. Galetka , 150 P.3d 480, 489
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`(Utah 2006), and then affirmed the denial of post- conviction relief,
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`Menzies v. State, 344 P.3d 581, 588 (Utah 2014).
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`3.
`
`Federal Habeas Proceedings
`
`Mr. Menzies sought federal habeas relief , presenting 4 3 claims. The
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`district court denied habeas relief, and Mr. Menzies obtained a certificate
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`of appealability on 9 of the claims. In t hese claims, he alleged
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`ineffectiveness of his counsel during the guilt and penalty stages, error in
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`the jury instruction on reasonable doubt, introduction of inadmissible
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`evidence in the sentencing phase, failure to properly channel the trial
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`judge’s discretion through aggravating circumstances, and errors in the
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`trial transcript.
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`4.
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`Standard of Review
`
`We engage in de novo review of the federal district court’s legal
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`analysis, applying the same standard as the district court . Littlejohn v.
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`Trammell, 704 F.3d 817, 825 (10th Cir. 2013). In district court, review is
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`deferential when the state appellate court has rejected a claim on the
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`13
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`merits. Rainer v. Hansen, 952 F.3d 1203, 1206 (10th Cir. 2020). After the
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`state appellate court has rejected a claim, the federal district court can
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`reach the merits only if the state court’s decision was
`
`•
`
`contrary to, or involved an unreasonable application of, clearly
`established federal law, as determined by the Supreme Court of
`the United States, or
`
`based on an unreasonable determination of the facts given the
`evidence presented in state court.
`28 U.S.C. § 2254(d).
`
`•
`
`To determine whether a state -court decision conflicted with or
`
`unreasonably applied clearly established law, we make two determinations.
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`Budder v. Addison, 851 F.3d 1047, 1051 (10th Cir. 2017). We first
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`determine whether the Supreme Court has clearly established the pertinent
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`constitutional protection. House v. Hatch, 527 F.3d 1010, 1018 (10th Cir.
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`2008). We then ask whether the state court’s decision was contrary to, or
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`involved an unreasonable application of, that precedent. Id.
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`Our deference extends not only to t he state court’s legal conclusions
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`but also its factual findings. For these findings, we defer to the state court
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`unless it “plainly misapprehend[ed] or misstate[d] the record in making
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`[its] findings, and the misapprehension goes to a material factual issue that
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`is central to [the] petitioner’s claim.” Ryder ex rel. Ryder v. Warrior, 810
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`F.3d 724, 739 (10th Cir. 2016) (quoting By rd v. Workman, 645 F.3d 1159,
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`1171–72 (10th Cir. 2011)). To overcome the state court’s factual findings,
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`the petitioner must show that the findings are objectively unreasonable.
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`Smith v. Aldridge, 904 F.3d 874, 880 (10th Cir. 2018).
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`If the state’s highest court acted unreasonably in applying Supreme
`
`Court precedent or in finding facts, the district court must decide whether
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`the conviction or sentence had violated federal law or the federal
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`constitution. See Fry v. Pliler, 551 U.S. 112, 119 (2007) (stating that 28
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`U.S.C. § 2254(d) provides “precondition[s] to the grant of habeas relief
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`. . . , not an entitlement to it”); Hancock v. Trammell , 798 F.3d 1002, 1010
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`(10th Cir. 2015) (“[E]ven when petitioners satisfy the threshold in
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`§ 2254(d), they must establish a violation of federal law or the federal
`
`constitution.”).
`
`5.
`
`
`
`
`The Utah Supreme Court reasonably rejected Mr. Menzies’s
`claims of ineffective assistance of counsel during the guilt
`phase.
`
`Mr. Menzies claims ineffective assistance of counsel in the guilt
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`phase based on his attorneys’ failure to
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`seek suppression of the identification testimony of Mr.
`Larrabee, a witness who testified that he had seen a man
`resembling Mr. Menzies in the area where Mr s. Hunsaker’s
`body was discovered,
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`investigate the accounts of Mr. Larrabee and his girlfriend, and
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`investigate and challenge the testimony of Walter Britton, a
`witness who testified that Mr. Menzies had confessed to the
`killing.
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`•
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` •
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` •
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`The Utah Supreme Court rejected Mr. Menzies’s claims, and the federal
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`district court concluded that rejection of these claims was reasonable based
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`on Supreme Court precedent and the record. We agree.
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`5.1
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`
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`Standard for Obtaining Relief Based on Ineffective
`Assistance of Counsel
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`Mr. Menzies’s claim of ineffective assistance is governed by the two-
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`part standard established by Strickland v. Washington , 466 U.S. 668
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`(1984).
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`
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`Under that standard, courts must determine whether the attorneys’
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`performance was deficient. See Strickland, 466 U.S. at 687. Performance is
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`deficient when the mistakes are so serious that the attorneys are no longer
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`serving as “counsel” under the Sixth Amendment. Id. In determining
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`whether the deficiency rises to this level, the court ordinarily presumes
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`that counsel’s performance is reasonable and might entail a sound strategy.
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`Id. at 689.
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`To overcome the presumption of reasonableness, a petitioner “must
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`show that counsel’s representation fell below an objective standard of
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`reasonableness.” Id. at 688. This inquiry is “highly deferential” and must
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`be made without “the distorting effects of hindsight.” Id. at 689. Strategic
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`decisions made after a “thorough investigation” are afforded even greater
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`deference and are “virtually unchallengeable.” Id. at 690.
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`
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`Even if the representation had been deficient, the federal district
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`court must determine whether the deficiency would have been prejudicial.
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`Id. at 682. Prejudice exists if there “is a reasonable probability that, but
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`for counsel’s unprofessional errors, the result of the proceeding would
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`have been different.” Id. at 694.
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`
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`When a habeas petitioner alleges ineffective assistance of counsel,
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`courts must engage in doubly deferential judicial review. Knowles v.
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`Mirzayance, 556 U.S. 111, 123 (2009) . Deference rests on both the
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`constitutional standard (from Strickland ) and the standard for habeas
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`relief. See id. (“The question ‘is not whether a federal court believes the
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`state court’s determination’ under Strickland ‘was incorrect but whether
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`[it] was unreasonable—a substantially higher threshold.’” (quoting Schriro
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`v. Landrigan, 550 U.S. 465, 473 (2007) ) (alteration in original)). Given the
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`two layers of deference, a court must consider “whether there is any
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`reasonable argument that counsel satisfied Strickland ’s deferential
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`standard.” Ellis v. Raemisch, 872 F.3d 1064, 1084 (10th Cir. 2017)
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`(quoting Harrington v. Richter, 562 U.S. 86, 105 (2011) (emphasis in
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`Ellis)).
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`5.2
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`
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`Identification Testimony at Trial
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`Mr. Larrabee testified at trial that he and his girlfriend had visited
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`the wooded area where Mrs. Hunsaker’s corpse was later found.
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`Mr. Larrabee said that while he was at the wooded area, he had seen a man
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`Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 18
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`and a woman walking closely together. Mr. Larrabee heard the m talking,
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`but could not tell what they were saying.
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`
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`About ten minutes later, Mr. Larrabee heard a scream. He assumed
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`that the woman had slipped or had seen an animal. About fifteen to twenty
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`minutes after hearing the scream , Mr. Larrabee saw the man returning
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`alone to the parking lot and an older car that looked like it was in poor
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`condition.
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`5.2.1
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`Photo Arrays
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`
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`After hearing reports of the discovery of Mr s. Hunsaker’s body, Mr.
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`Larrabee contacted the police. A police officer responded by showing Mr.
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`Larrabee a photo array of six subjects. Mr. Larrabee initially didn’t pick
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`any of the photographs. But minutes later, he asked to view the
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`photographs again and picked the one of Mr. Menzies, saying that he
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`resembled the man in the wooded area.
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`5.2.2
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`Identification of Objects
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`The officers also took Mr. Larrabee to a parking lot and asked him if
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`any of the cars resembled the one he had seen in the wooded area . Mr.
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`Larrabee identified a car that Mr. Menzies had borrowed.
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`
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`The officers also showed Mr. Larrabee a coat belonging to Mr.
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`Menzies. Mr. Larrabee testified that the coat resembled the one that the
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`man had worn in the wooded area.
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`Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 19
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`5.2.3
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`Lineup
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`
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`Months later, Mr. Larrabee viewed a lineup with eight individuals,
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`including Mr. Menzies. Mr. Larrabee identified another man as the person
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`in the wooded area. So the prosecutor didn’t ask Mr. Larrabee on direct
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`examination about the lineup. But on cross- examination, Mr. Larrabee
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`admitted that he had failed to identify Mr. Menzies during the lineup.
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`To counter that admission, the prosecutor conducted redirect
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`examination. There Mr. Larrabee pointed out that shortly after the lineup,
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`he asked a prosecutor if someone else in the lineup (who was Mr. Menzie s)
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`was the suspect.
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`
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`Mr. Menzies’s counsel objected to this testimony and moved for a
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`mistrial. The trial court struck this part of the testimony but declined to
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`grant a mistrial.
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`5.3
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`The Utah Supreme Court’s Disposition of Claims Involving
`Identification Testimony
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`In the Utah Supreme Court, Mr. Menzies complained of trial
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`counsel’s failure to seek suppression of Mr. Larrabee’s testimony about the
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`photo arrays. The Utah Supreme Court rejected this claim based on a
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`failure to show either deficient representation or prejudice. On the issue of
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`deficient representation, the court reasoned that
`
`•
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`Mr. Menzi es had failed to present evidence of undue
`suggestiveness and
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`Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 20
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`•
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`trial counsel acted reasonably in pointing out the flaws in Mr.
`Larrabee’s testimony rather than seeking suppression.
`
`
`Menzies v. State, 344 P.3d 581, 616– 19 (Utah 2014). The Utah Supreme
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`Court also found no prejudice based on the failure to show a likely
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`difference in the outcome without the testimony on the photo array. Id. at
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`619.
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`
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`For Mr. Larrabee’s identification of Mr. Menzies following the
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`lineup, the Utah Supreme Court observe d that the trial court had stricken
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`this part of the testimony. Id. at 618.
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`5