                This opinion is subject to revision before final
                     publication in the Pacific Reporter

                               2014 UT 40


                                   IN THE

     SUPREME COURT OF THE STATE OF UTAH

                       RALPH LEROY MENZIES,
                       Petitioner and Appellant,
                                      v.
                           STATE OF UTAH,
                       Respondent and Appellee.


                            No. 20120290
                      Filed September 23, 2014

                Third District, West Jordan Dep‘t
                The Honorable Bruce C. Lubeck
                         No. 030106629

                                Attorneys:
    Theodore R. Weckel, Jr., Salt Lake City, Craig T. Peterson,
                   Bountiful, for appellant
 Sean D. Reyes, Att‘y Gen., Thomas B. Brunker, Asst. Att‘y Gen.,
     Erin Riley, Asst. Att‘y Gen., Salt Lake City, for appellee


CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
      ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM,
            JUSTICE PARRISH, and JUSTICE LEE joined.


   CHIEF JUSTICE DURRANT, opinion of the Court:
                              Introduction
   ¶1 Nearly twenty-six years ago, a jury convicted Ralph
Leroy Menzies of the first degree murder of Maurine Hunsaker.
At sentencing, Judge Raymond Uno imposed the death penalty.
Since then, we have issued three opinions in Mr. Menzies‘s case:
                           MENZIES v. STATE
                       Opinion of the Court
two from direct appeals1 and one from a post-conviction appeal.2
In Mr. Menzies‘s first post-conviction appeal, Menzies III, we
reversed the dismissal of his post-conviction petition and allowed
him to amend his petition.3 He availed himself of this opportunity
multiple times, culminating in the filing of a Fifth Amended
Petition for Relief Under the Utah Post-Conviction Remedies Act
(Fifth Amended Petition). On March 23, 2012, the post-conviction
court (PCC)4 issued an order granting the State summary
judgment, denying Mr. Menzies‘s cross-motion for summary
judgment, and dismissing the Fifth Amended Petition.
    ¶2 Mr. Menzies‘s current post-conviction appeal to this court
(his second) raises numerous claims, which can be separated into
three general categories. First, he challenges the constitutionality
of the Utah Post-Conviction Remedies Act (PCRA), as well as the
PCC‘s application of the PCRA‘s funding provisions. Second, he
claims that the PCC erred in rejecting several of his post-
conviction motions, including motions for an answer from the
State, a continuance, and an evidentiary hearing. Finally, he
claims that his former counsel provided ineffective assistance,
including at trial, sentencing, and on appeal. We reject each of
Mr. Menzies‘s claims and affirm the PCC‘s order dismissing his
Fifth Amended Petition.5


   1 State v. Menzies (Menzies II), 889 P.2d 393 (Utah 1994), cert.
denied, 513 U.S. 1115 (1995); State v. Menzies (Menzies I), 845 P.2d
220 (Utah 1992).
   2   Menzies v. Galetka (Menzies III), 2006 UT 81, 150 P.3d 480.
   3   Id. ¶ 118.
   4 Throughout this opinion we refer to the post-conviction court
that considered Mr. Menzies‘s Fifth Amended Petition using the
acronym ―PCC.‖ We do not use this acronym when referring to
another post-conviction court or to post-conviction courts
generally.
   5  The PCC rejected other claims, but Mr. Menzies does not
challenge the rejection of these claims in this appeal. The PCC
rejected some of these claims because they were either already
raised or could have been raised on direct appeal. They include
the following: (1) Mr. Menzies was denied due process because
trial transcripts were not available to him, (2) the admission of
certain preliminary hearing testimony violated Mr. Menzies‘s
Confrontation Clause rights, and (3) the jury instructions
                                                      (continued)
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                        Opinion of the Court
                             Background
    ¶3 We have recounted the basic facts of this case in our three
previous decisions.6 We recite some of those facts here, along with
certain other facts, to help give context to the specific issues raised
in this appeal. First, we consider the facts relating to the crime and
investigation. Next, we outline the procedural history of this case:
(1) the guilt phase of the trial, (2) the penalty phase of the trial, (3)
the appellate proceedings, and (4) the post-conviction
proceedings.
                   I. The Crime and Investigation
    ¶4 During the evening of Sunday, February 23, 1986,
Maurine Hunsaker‘s husband called the Gas-A-Mat gas station
where she worked. Mrs. Hunsaker did not pick up. Concerned,
Mr. Hunsaker then went to Gas-A-Mat around 10:10 p.m. that
same night. When he arrived he found that Mrs. Hunsaker and
her purse were gone. The police arrived at the gas station and
accompanied Mr. Hunsaker home. At about 11:05 p.m.,
Mrs. Hunsaker called the Hunsakers‘ home phone. She stated that
―[t]hey told me to tell you they robbed me and got me and that I
am fine and they are going to let me go sometime tonight.‖
Mr. Hunsaker noted that Mrs. Hunsaker sounded upset and
scared. An officer also spoke to Mrs. Hunsaker on the phone and
asked whether the perpetrators robbed her. Mrs. Hunsaker said


regarding      eyewitness      identification    testimony    were
unconstitutional.
    The PCC also rejected several claims that originated in
Mr. Menzies‘s motion for summary judgment. The State argued
that the PCC could not consider the claims. The PCC agreed and
held that they were procedurally barred because Mr. Menzies did
not raise them in his Fifth Amended Petition. They include the
following: (1) trial counsel insufficiently involved Mr. Menzies in
settlement offers, (2) trial counsel should have sought a hearing
on expert testimony regarding the carpet fibers found on Mrs.
Hunsaker and in Mr. Menzies‘s apartment, and (3) trial counsel
should have tried to suppress the results of a search of
Mr. Menzies‘s apartment. Mr. Menzies does not appeal the PCC‘s
rejection of these claims either.
   6 See Menzies III, 2006 UT 81, 150 P.3d 480; Menzies II, 889 P.2d
393 (Utah 1994), cert. denied, 513 U.S. 1115 (1995); Menzies I, 845
P.2d 220 (Utah 1992).

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                         MENZIES v. STATE
                        Opinion of the Court
yes. She also indicated that the perpetrators planned to release her
that night or the following morning. The officer then returned the
phone to Mr. Hunsaker. Mrs. Hunsaker asked Mr. Hunsaker what
she should do. The telephone line disconnected before he could
respond.
    ¶5 Two days later, on Tuesday, February 25, a hiker found
Mrs. Hunsaker‘s body near the Storm Mountain picnic area in Big
Cottonwood Canyon. Her throat was cut, her wrists had marks on
them, and the bark of a nearby tree was scuffed, suggesting that
she was tethered to the tree. A medical examiner determined that
ligature strangulation caused Mrs. Hunsaker‘s death. The
examiner also noted that the cut in her throat contributed to her
death and that a variety of different knives could have been used
to inflict the wound. The examiner‘s report indicated that the
marks on her wrists could have been caused by wire or cord, but
it made no mention of handcuffs.
   ¶6 Meanwhile on February 24, as the police were
investigating the events surrounding Mrs. Hunsaker‘s
disappearance, they arrested and booked Mr. Menzies for an
unrelated burglary. Mr. Menzies‘s exact booking time is
uncertain. He suggests that the police completed the booking
process at 7:59 p.m. He also points out that trial counsel stipulated
that he turned over cash to the police around 7:20 p.m. Other
evidence in the record suggests that the police began the booking
process around 6:40 p.m. During booking, the booking officer
asked Mr. Menzies for his possessions. He responded by spinning
around, running down a hallway, and ducking into a changing
room. He was out of sight for about five to eight seconds. A
pursuing officer found Mr. Menzies and saw him ―reaching
around‖ to ―pull on‖ his pants. The officer testified that although
Mr. Menzies was handcuffed at the time, he could still move his
arms. Mr. Menzies explained that he had run and ducked into the
changing room because he was looking for a restroom. He did not
ask for a restroom again, however, during the hour-and-a-half
booking process.
   ¶7 A jailer found four of Mrs. Hunsaker‘s identification
cards in a laundry hamper located in the changing room into
which Mr. Menzies ran.7 The jailer put the cards in a nearby desk

   7  To advance his ineffective assistance claims, Mr. Menzies
points out that the record is unclear regarding the exact time the
jailer found the identification cards in the hamper. The record is
not as unclear as he suggests, however. In fact, it strongly
                                                      (continued)
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                        Cite as: 2014 UT 40
                       Opinion of the Court
drawer. Another officer later discovered the identification cards in
the drawer. The officer who found the cards recognized
Mrs. Hunsaker‘s picture from an earlier news report regarding
her disappearance.
   ¶8 Multiple witnesses alleged they saw Mrs. Hunsaker
during the time between her disappearance from the gas station
and the finding of her body. First, a witness reportedly saw her at
a Denny‘s restaurant on the night of her disappearance with a
man who fit the description of Mr. Menzies‘s friend, Troy Denter.
Second, on February 24, the morning after Mrs. Hunsaker went
missing, two high-school students, Tim Larrabee and Beth Brown,
saw two people at Storm Mountain who they later said fit the
description of Mr. Menzies and Mrs. Hunsaker.
    ¶9 On Tuesday, February 25, the day after Mr. Larrabee and
Ms. Brown visited Storm Mountain, Mr. Larrabee watched
television and saw a report that a hiker found Mrs. Hunsaker‘s
body near the Storm Mountain picnic area. The next day,
Wednesday, February 26, Mr. Larrabee contacted the police and
reported that he and Ms. Brown were at Storm Mountain the
morning of Monday, February 24. Mr. Larrabee reported twice
seeing a man and a woman walking together away from where he
and Ms. Brown were located. He noted that the man had a coat
slung over his right shoulder and that he could not tell whether


indicates that the jailer most likely found the identification cards
on Monday, February 24—the same day the police booked
Mr. Menzies. First, Detective Dennis Couch stated in an affidavit
for a search warrant of Mr. Menzies‘s apartment that the jailer
found the identification cards on February 24. And second, the
jailer testified at trial that he found the cards between 6:30 and
7:00 p.m. on February 24. Mr. Menzies cites to various places in
the record to suggest that the jailer in other instances reported
finding the identification cards on February 25 and 26. But he
appears to misread or misunderstand the record. For instance, in
an interview the police asked the jailer when he found the cards.
The interview transcript shows that the jailer answered ―26th of
February.‖ But ―26th‖ is crossed out in the transcript and replaced
with ―24.‖ Any potential ambiguity can be resolved by reading
the answer in context. The interviewing officer followed up the
question by asking ―[w]ould that be on a Monday.‖ The jailer
responded ―[y]eah.‖ Mr. Menzies‘s other record citations are
similarly in accord when read in their proper context.

                                 5
                          MENZIES v. STATE
                        Opinion of the Court
the two were holding hands. He stated that nothing unusual
appeared to be going on between the two. He further reported
that about ten minutes after he saw the two people, he heard a
scream and assumed that the woman either slipped or was
frightened by an animal. Approximately fifteen to twenty minutes
later, Mr. Larrabee saw a man walking alone towards the nearby
parking lot. Mr. Larrabee also said he noticed a 1960s cream-
colored vehicle in the parking lot similar to a 1968 Buick Riviera.
    ¶10 Mr. Larrabee described the man he saw as a white male,
twenty-five to thirty years old, 6′1″ tall, and approximately 170
pounds. He noted that the man wore a coat that was either blue-
grey or blue-white. He also said the man had black curly hair and
either a scraggly beard or sideburns. Mr. Larrabee‘s description of
the man ended up being within one inch in height and ten pounds
in weight of Mr. Menzies. Mr. Larrabee said he could probably
identify the man if he saw a picture, but that he could not identify
the woman. Police detective Richard Judd created a composite
drawing using Mr. Larrabee‘s description.
    ¶11 Two days later on Friday, February 28, after comparing
the composite drawing with photographs from over two hundred
inmates booked between February 23 and February 25, the police
selected six photos from that group for Mr. Larrabee to view.
Mr. Menzies‘s picture was one of the photos the police picked
from the pool. The police considered Mr. Menzies a suspect by the
time they showed the photos to Mr. Larrabee.8 Detective Judd
testified that they tried to make it as hard as possible for
Mr. Larrabee to identify Mr. Menzies. The police then showed
Mr. Larrabee the array of photos. Mr. Larrabee initially made no
positive identification. He asked to see the array again. After
further review, he selected Mr. Menzies‘s photo as looking the
most like the man he saw at Storm Mountain.
   ¶12 About three months after Mr. Larrabee viewed the photo
array, the police conducted a lineup that included Mr. Menzies.
At the lineup, Mr. Larrabee identified someone other than
Mr. Menzies as the man he saw at Storm Mountain. Apparently,


   8  The State‘s brief states that the ―[p]olice had not yet identified
Menzies as a suspect‖ during the time they created the photo
array. At oral argument the State conceded, however, that its
initial position was incorrect and that in fact the police did
consider Mr. Menzies a suspect at the time they assembled the
photo array.

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                        Cite as: 2014 UT 40
                       Opinion of the Court
Mr. Larrabee later felt he made a mistake and asked the
prosecutor whether number six in the lineup was the suspect.
Mr. Menzies was suspect number six. Later at trial, the court
instructed the jury not to consider Mr. Larrabee‘s testimony
regarding his confirmatory request to the prosecutor.
   ¶13 The same day the police showed Mr. Larrabee the photo
array, they also interviewed Mr. Menzies‘s friend Troy Denter.
Mr. Denter told them that he loaned his cream-colored 1974
Chevrolet to Mr. Menzies some time during the afternoon of
Sunday, February 23. Mr. Menzies apparently told Mr. Denter he
planned to return the car around 10:00 p.m. Sunday night.
Mr. Menzies did not return the car on time. Mr. Denter called
Mr. Menzies‘s apartment phone number around 10:00 p.m.
Mr. Menzies‘s girlfriend, Nicole Arnold, answered and stated he
was not there. Mr. Denter called again around 11:00 p.m., but
Mr. Menzies was still away. Mr. Denter called one more time
around 1:00 a.m. Mr. Menzies answered and asked if he could
keep the car until the next morning because he had ―one more
order of business to take care of.‖ But Mr. Menzies did not return
the car until about noon the next day, Monday, February 24. He
used about twelve and one-half gallons of gas during the time he
borrowed Mr. Denter‘s car. After retrieving his car, Mr. Denter
found a box labeled ―handcuffs‖ under the driver‘s seat.
   ¶14 After interviewing Mr. Denter, the police escorted
Mr. Larrabee out to a nearby parking terrace to determine
whether Mr. Larrabee might be able to identify the car he saw at
Storm Mountain. The police had earlier parked the cream-colored
1974 Chevrolet owned by Mr. Denter among the other cars.
Mr. Larrabee tentatively identified Mr. Denter‘s car as looking like
the one he saw at Storm Mountain. Ms. Brown also tentatively
identified Mr. Denter‘s car as the car she saw in the Storm
Mountain parking lot.
   ¶15 The police questioned Mr. Menzies after hearing
Mr. Larrabee‘s eyewitness account. Mr. Menzies told them that on
the night he borrowed Mr. Denter‘s car, he picked up a woman on
State Street and then picked up Ms. Arnold. He drove around
with both women until the two began to fight. He dropped off
Ms. Arnold and then dropped the other woman off somewhere
around 7200 West and 2400 South. He stated that he then went
home to talk to Ms. Arnold.
   ¶16 The police discovered numerous pieces of evidence
indicating that Mr. Menzies killed Mrs. Hunsaker. They found
Mrs. Hunsaker‘s thumbprint in Mr. Denter‘s car. They found that
                               7
                               MENZIES v. STATE
                          Opinion of the Court
approximately $116 was missing from the Gas-A-Mat cash
register.9 This amount was approximately the same amount of
money that was later found in Mr. Menzies‘s apartment. After
being booked for the unrelated burglary offense, Mr. Menzies
asked Mr. Denter to retrieve $115 from his apartment. Mr. Denter
spent about $25. Ms. Arnold‘s mother later found $90 hidden in
Mr. Menzies‘s apartment. Ms. Arnold‘s mother also found
handcuffs in a maroon and grey parka belonging to Mr. Menzies.
The police ordered a chemical analysis comparing fibers of
Mr. Menzies‘s green shag carpet with green fibers on
Mrs. Hunsaker‘s clothing. That analysis found similarities in the
color, diameter, shape, and content of the fibers. The police seized
a buck knife from Mr. Menzies‘s apartment that was capable of
causing the wounds on Mrs. Hunsaker‘s neck. The police also
seized a brown suede purse from Mr. Menzies‘s apartment, and
Mr. Hunsaker testified that the purse belonged to Mrs. Hunsaker.
Six months after Mr. Menzies‘s arrest, Ms. Arnold‘s stepfather
found Mrs. Hunsaker‘s social security card in Ms. Arnold‘s
belongings. Finally, another jail inmate, Walter Britton, testified at
Mr. Menzies‘s preliminary hearing that Mr. Menzies confessed
that he killed Mrs. Hunsaker. According to Mr. Britton,
Mr. Menzies also stated that slitting her throat was one of the
biggest thrills of his life.
                         II. Procedural History
    ¶17 Much of this appeal centers on the effectiveness of
Mr. Menzies‘s trial and appellate counsel. In each instance,
attorneys from the Salt Lake Legal Defender Association (LDA)
represented Mr. Menzies. Below we consider Mr. Menzies‘s
claims that his counsel rendered ineffective assistance.10 We now
briefly describe the guilt-phase, penalty-phase, appellate, and
post-conviction proceedings to provide some necessary context.
                         A. Guilt-Phase Proceedings
    ¶18 Brooke Wells, currently a federal magistrate judge, acted
as lead counsel in Mr. Menzies‘s case.11 Frances Palacios acted as


   9 The record is unclear regarding exactly how much money
was missing because of the gas station‘s loose accounting
practices.
   10   See infra ¶¶ 71–223.
   11Throughout this opinion we refer to Judge Brooke Wells as
―Ms. Wells‖ because at the time of her representation of
                                                   (continued)
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                         Cite as: 2014 UT 40
                        Opinion of the Court
co-counsel and second chair in the case. The defense theory
advocated by Ms. Wells and Ms. Palacios is described in depth
below. In short, they relied on a failure-of-proof defense.12 This
defense consisted of two parts. First, they argued that the State
could not prove beyond a reasonable doubt that Mr. Menzies
killed Mrs. Hunsaker. And second, they argued that the State
could not prove an aggravator that would support a capital
conviction. After a month-long trial, a jury rejected the failure-of-
proof defense theory and convicted Mr. Menzies of capital
homicide and aggravated kidnapping.
                      B. Penalty-Phase Proceedings
    ¶19 Ms. Wells and Ms. Palacios also acted as the lead
attorneys during the penalty phase of the proceedings. In that
phase, Mr. Menzies waived his right to a jury. During the penalty
phase, the State argued that Judge Uno should impose the death
penalty. In making this argument, the State relied primarily on the
evidence produced during the guilt-phase proceedings and on
Mr. Menzies‘s criminal history. Trial counsel proffered mitigation
and background evidence to suggest that Mr. Menzies should not
receive a death sentence. After considering trial counsel‘s
mitigation defense, Judge Uno imposed the death penalty.


Mr. Menzies she was not a sitting judge. Further, we refer to
Ms. Wells and Ms. Palacios collectively as ―trial counsel.‖
   12 Mr. Menzies repeatedly asserts that trial counsel did not rely
on a failure-of-proof defense. He suggests instead that trial
counsel‘s ―principal theory was that the victim . . . voluntarily
risked losing her job, her marriage, and custody of her children,
for a date with a mentally ill stranger because she was clinically
depressed.‖ There are statements by trial counsel in the record
that suggest as much. But read in context, these statements go to
the second part of trial counsel‘s two-part failure-of-proof
strategy—whether the State could prove an aggravator that would
support a capital conviction. Trial counsel‘s defense strategy did
not rely solely on the notion that Mrs. Hunsaker left with
Mr. Menzies voluntarily. Trial counsel‘s closing argument
summarizes the defense theory as follows: ―[w]hat you must do
today [is] decide has the State proved beyond a reasonable doubt
that this is a first degree homicide. . . . you then determine if it has
been proved beyond a reasonable doubt that Mr. Menzies, the
person accused, is the one who committed that offense.‖

                                   9
                           MENZIES v. STATE
                         Opinion of the Court
                         C. Appellate Proceedings
   ¶20 After penalty-phase proceedings concluded, Mr. Menzies
moved for a new trial and grounded his motion largely on the
basis of errors in the trial transcript. The trial court rejected his
motion. Mr. Menzies appealed that denial. On appeal, LDA again
represented Mr. Menzies. Joan Watt acted as lead appellate
counsel. We affirmed the trial court‘s denial of Mr. Menzies‘s
motion for new trial.13 Mr. Menzies next brought a direct appeal
on the merits and argued that numerous errors occurred at trial.
We dismissed that appeal as being ―without merit.‖14
                       D. Post-Conviction Proceedings
   ¶21 In Menzies III, we detailed at length the first decade of
Mr. Menzies‘s post-conviction proceedings.15 We recite only a
small portion of those proceedings here.
    ¶22 Mr. Menzies, with the help of pro bono counsel, began
post-conviction proceedings by filing a petition for post-
conviction relief on April 20, 1995. He then filed an amended
petition on May 2, 1995. In 1997, after the PCRA took effect, the
state notified Mr. Menzies that he might be entitled to receive
payment from the state for litigation costs and attorney fees. The
next year, Edward Brass began serving as Mr. Menzies‘s counsel.
Mr. Brass filed a two-page second amended petition for post-
conviction relief on August 31, 1998. Over approximately the next
five years, Mr. Brass ―willfully neglect[ed]‖ Mr. Menzies‘s case.16
In late 2003, Elizabeth Hunt replaced Mr. Brass as Mr. Menzies‘s
counsel. Ms. Hunt sought to undo the damage done to
Mr. Menzies‘s case by Mr. Brass and filed a rule 60(b) motion
seeking to set aside a default judgment entered against
Mr. Menzies. That filing led to our decision in Menzies III. There
we held that Mr. Menzies had a statutory right to effective
assistance of post-conviction counsel under the PCRA.17 We
determined that Mr. Brass‘s representation constituted ineffective
assistance of counsel and ordered that Mr. Menzies be given the


   13   Menzies I, 845 P.2d 220, 242 (Utah 1992).
   14 Menzies II, 889 P.2d 393, 406 (Utah 1994), cert. denied, 513 U.S.
1115 (1995).
   15   Menzies III, 2006 UT 81, ¶¶ 3–48, 150 P.3d 480.
   16   Id. ¶ 110.
   17   Id. ¶ 82.

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                       Opinion of the Court
opportunity to investigate his claims and file another amended
post-conviction petition.18
   ¶23 In 2008, the legislature responded to our Menzies III
decision by amending the PCRA. We have previously recognized
that the 2008 amendments were a response to our holding in
Menzies III that the PCRA granted a right to effective assistance of
post-conviction counsel.19 Under the amended version, the PCRA
expressly states it does not confer a right to effective assistance of
counsel in post-conviction proceedings.20
    ¶24 On remand, Richard Mauro initially represented
Mr. Menzies. He withdrew as counsel, however, after challenging
the state‘s payment schedule. Craig Peterson, Mr. Menzies‘s
current co-counsel, began representing him in early 2009.
Theodore Weckel, Mr. Menzies‘s current lead counsel, also began
representing him in 2009. Mr. Weckel and Mr. Peterson filed
numerous motions with the PCC seeking additional discovery
and investigation. They filed a third amended petition for post-
conviction relief on October 12, 2010, a fourth amended petition
on January 10, 2011, and a fifth amended petition on March 14,
2011. The Fifth Amended Petition lists twenty-seven claims for
relief. The State responded to the Fifth Amended Petition by filing
a motion for summary judgment on May 17, 2011. Mr. Menzies
filed an opposition to the State‘s motion along with a cross-motion
for summary judgment on August 1, 2011. The State filed a reply
on November 1, 2011. In addition to his motion for summary
judgment, Mr. Menzies filed motions seeking an evidentiary
hearing, a rule 56(f) extension, and to supplement the record, each
of which the PCC denied.
   ¶25 On March 23, 2012, the PCC issued an order granting the
State‘s summary judgment motion, denying Mr. Menzies‘s cross-
motion for summary judgment, and dismissing the Fifth
Amended Petition. Mr. Menzies timely appealed the PCC‘s order

   18   Id. ¶ 111.
   19See Carter v. State, 2012 UT 69, ¶ 37, 289 P.3d 542 (―In an
apparent response to [Menzies III], the legislature amended the
PCRA in 2008.‖).
   20UTAH CODE § 78B-9-202(4) (―Nothing in this chapter shall be
construed as creating the right to the effective assistance of
postconviction counsel, and relief may not be granted on any
claim that postconviction counsel was ineffective.‖).

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                            MENZIES v. STATE
                       Opinion of the Court
by filing a notice of appeal on March 28, 2012. We have
jurisdiction pursuant to Utah Code Section 78A-3-102(3)(i).
                          Standard of Review
    ¶26 Mr. Menzies raises three categories of claims on appeal:
(1) constitutional claims challenging the PCRA, (2) procedural
claims that stem from the PCC‘s pre-judgment rulings, and
(3) claims of ineffective assistance of counsel.21 We assess each of
these issues under a different standard of review, described
below, and also note the overarching standard of review for a
grant of summary judgment, which is at issue in this case.
   ¶27 First, Mr. Menzies challenges the constitutionality of the
PCRA, as well as the PCC‘s funding decisions under the PCRA.
―Constitutional issues . . . are questions of law that we review for
correctness,‖22 but ―we will review [a] postconviction court‘s
denial of [a petitioner‘s] funding request for an abuse of
discretion.‖23
    ¶28 Second, Mr. Menzies challenges several of the PCC‘s
procedural rulings. He first claims that due process and rule 65C
of the Utah Rules of Civil Procedure required the State to file an
answer before moving for summary judgment. Interpretation of a
rule and constitutional claims each present a question of law that

   21 A significant portion of Mr. Menzies‘s brief is devoted to
showing that the PCC‘s ―de facto findings of fact from the record
were erroneous.‖ In reviewing a lower court‘s findings of fact,
―[w]e apply the clearly erroneous standard.‖ State v. Hutchings,
2012 UT 50, ¶ 8, 285 P.3d 1183. Mr. Menzies‘s argument here fails
for the simple reason that the PCC made no findings of fact.
Several times in its opinion the PCC specifically noted that it was
not finding or determining facts. Rather the court stated it was
―merely recit[ing facts] from the record . . . to demonstrate the
basic factual situation involved in this case.‖ The PCC assumed
that ―all the facts [Mr. Menzies] alleges are true‖ and held that
even under this assumption Mr. Menzies‘s claims failed. Other
parts of Mr. Menzies‘s opening brief concede the point that ―the
PCC did not make findings of fact.‖ Because there are no findings
of fact to review, we reject Mr. Menzies‘s claim that the PCC‘s
findings of fact were clearly erroneous.
   22State v. Martinez, 2013 UT 23, ¶ 6, 304 P.3d 54 (internal
quotation marks omitted).
   23   Honie v. State, 2014 UT 19, ¶ 29.

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                         Cite as: 2014 UT 40
                        Opinion of the Court
we review for correctness.24 Second, he claims that the PCC erred
in denying his rule 56(f) motion for a continuance. We review a
decision granting or denying a rule 56(f) motion for an abuse of
discretion and ―will not reverse the district court‘s decision . . .
unless it exceeds the limits of reasonability.‖25 Third, he claims
that the PCC erred in denying him an evidentiary hearing under
rule 43(b) of the Utah Rules of Civil Procedure. We review a
decision granting or denying a rule 43(b) motion for an abuse of
discretion.26 With respect to both rule 56(f) and rule 43(b), we
recognize that while we review the ultimate determination of
whether to grant or deny these motion for an abuse of discretion,
a district court may make findings of fact or conclusions of law in
reaching that ultimate determination. And as to those decisions
we review findings of fact under a ―clearly erroneous‖ standard
and conclusions of law under a ―de novo‖ standard.27
    ¶29 Third, Mr. Menzies brings claims of ineffective assistance
of counsel. ―[W]e review a lower court‘s purely factual findings
for clear error, but [we] review the application of the law to the
facts for correctness.‖28
   ¶30 Finally, because Mr. Menzies‘s appeal is from the PCC‘s
grant of summary judgment to the State, our standard of review
regarding summary judgment is relevant here. ―[W]e review a


   24  State v. Phong Nguyen, 2012 UT 80, ¶ 8, 293 P.3d 236
(―Interpretation of a rule presents a question of law that we . . .
review for correctness.‖); Martinez, 2013 UT 23, ¶ 6
(―Constitutional issues . . . are questions of law that we review for
correctness.‖ (internal quotation marks omitted)).
   25 Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55, ¶ 20,
192 P.3d 858 (internal quotation marks omitted).
   26 Stan Katz Real Estate, Inc. v. Chavez, 565 P.2d 1142, 1143 (Utah
1977) (―We recognize, of course, that trial judges have [] discretion
to hear and determine ordinary motions either on affidavits or
oral testimony portraying facts not appearing of record.‖ (internal
quotation marks omitted)).
   27Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35,
¶¶ 40–41, 308 P.3d 382 (internal quotation marks omitted).
   28 Archuleta v. Galetka, 2011 UT 73, ¶ 25, 267 P.3d 232, cert.
denied, 133 S. Ct. 112 (2012) (second alteration in original) (internal
quotation marks omitted).

                                  13
                         MENZIES v. STATE
                        Opinion of the Court
grant of summary judgment for correctness, granting no
deference to the [lower] court. We affirm a grant of summary
judgment when the record shows that there is no genuine issue as
to any material fact and that the moving party is entitled to a
judgment as a matter of law.‖29 Part III of this opinion further
develops the implications of our summary judgment standard in
the context of this case.
                             Analysis
    ¶31 Mr. Menzies makes numerous post-conviction claims,
which can be separated into three general categories. First, he
raises several claims relating to the PCRA, including
constitutional claims and challenges to the PCC‘s application of
the PCRA‘s funding provisions. Second, he argues that the PCC
erred in rejecting his procedural claims, including that (1) the
State must answer his petition for post-conviction relief, (2) he is
entitled to a rule 56(f) continuance, and (3) the PCC must hold an
evidentiary hearing before ruling on the cross-motions for
summary judgment. Third, and last, he raises ineffective
assistance of counsel claims stemming from his counsel‘s
performance at the guilt phase, penalty phase, and appellate
phase of the proceedings.
    ¶32 Part I of this section discusses Mr. Menzies‘s challenges to
funding under the PCRA. Mr. Menzies first argues that the
PCRA‘s funding provisions violate the United States and Utah
constitutions. We reject these claims because Mr. Menzies fails to
establish that he has a right to funded post-conviction counsel.
Additionally, Mr. Menzies argues that the PCC abused its
discretion in denying further funding. We conclude that the PCC
did not abuse its discretion in concluding that the funds given to
Mr. Menzies have been more than ―reasonable‖ and that he
cannot show that ―good cause‖ justifies further funding.
    ¶33 Part II of this section discusses Mr. Menzies‘s procedural
claims. We affirm the PCC‘s denial of each of these claims. We
first conclude that the State was not required to answer
Mr. Menzies‘s Fifth Amended Petition, because rule 65C of the
Utah Rules of Civil Procedure allows the State to respond to a
petition for post-conviction relief with a motion for summary
judgment. We then examine Mr. Menzies‘s claim that he is
entitled to a rule 56(f) continuance and conclude that the PCC did

   29 Ross v. State, 2012 UT 93, ¶ 18, 293 P.3d 345 (alteration in
original) (internal quotation marks omitted).

                                14
                           Cite as: 2014 UT 40
                          Opinion of the Court
not abuse its discretion in denying Mr. Menzies a continuance.
Next, we address Mr. Menzies‘s claim that the PCC should have
held an evidentiary hearing before ruling on the cross-motions for
summary judgment and conclude that the PCC did not abuse its
discretion in denying Mr. Menzies an evidentiary hearing.
   ¶34 Finally, in Part III of this section we analyze
Mr. Menzies‘s ineffective assistance of counsel claims. We
conclude that all but two of these claims are properly before us
because LDA represented Mr. Menzies at both trial and on
appeal.30 As to those claims that are properly before us, we affirm
the PCC‘s decision on each because Mr. Menzies is unable to
make a sufficient showing of deficient performance and prejudice
under Strickland v. Washington.31




   30  Two of Mr. Menzies‘s ineffective assistance claims are not
properly before us. They include (1) counsel was ineffective by
failing to raise a due process challenge based on the jury seeing
Mr. Menzies handcuffed, and (2) trial counsel should have
advised Mr. Menzies of the option to plead guilty under North
Carolina v. Alford, 400 U.S. 25 (1970). As we explain below, infra
¶ 72 n.69, both of these claims are procedurally barred because
Mr. Menzies did not raise them in his Fifth Amended Petition.
   31   466 U.S. 668 (1984).

                                   15
                         MENZIES v. STATE
                     Opinion of the Court
    I. Mr. Menzies‘s PCRA Claims Fail Because He Has not
Established that He Has a Constitutional Right to Funded Post-
Conviction Counsel and the PCC Did not Abuse Its Discretion in
    Holding that the State Has Provided Mr. Menzies with
                      Reasonable Funds
    A. Mr. Menzies Has not Established that He Has a Constitutional
              Right to Funded Post-Conviction Counsel32
    ¶35 Mr. Menzies first raises constitutional challenges to the
PCRA: he claims that (1) the PCRA violates Utah‘s right to counsel
since it interferes with counsel‘s independent decision-making,
(2) the PCRA ―facilitates arbitrary death sentences‖ because it fails
to give adequate resources to investigate before requiring counsel
to prove what he or she would find in discovery, and (3) the
PCRA is inconsistent with Utah‘s Due Process Clause. The main
contention in each of these claims is that the PCRA‘s funding
limits restrict his rights to counsel and due process, since they
prevent counsel from engaging in ―vigorous advocacy.‖ In
support of each of these claims, Mr. Menzies cites generally to the
Sixth Amendment and Utah‘s due process clause. The PCC
rejected Mr. Menzies‘s constitutional claims. We affirm and reject
each of these claims.
   ¶36 All of Mr. Menzies‘s constitutional arguments presume
that he has the constitutional right to funded post-conviction
counsel. In fact, all of his arguments, including his due process
argument, specifically turn on whether he has this right. As a


   32  Before oral argument, we requested that both parties
prepare to discuss whether the PCRA applied at all to
Mr. Menzies‘s claims, given that his initial post-conviction
petition was filed before the effective date of the PCRA. But we
decline to reach this issue in our decision, as we also declined to
do in Honie v. State, 2014 UT 19, ¶ 84 n.12, since neither party has
challenged the applicability of the PCRA to Mr. Menzies‘s claims
on appeal. In essence, our holding in Menzies III served to wipe
the slate clean and provide Mr. Menzies with an opportunity to
file an amended post-conviction petition, which he did in 2010.
Menzies III, 2006 UT 81, ¶ 111, 150 P.3d 480. We therefore assume,
for purposes of this appeal, that the version of the PCRA in force
at the time he filed his Fifth Amended Petition governs, which
includes the funding provisions contained in the 2008
amendments to the PCRA that provide the basis for Mr. Menzies‘s
funding challenge.

                                 16
                             Cite as: 2014 UT 40
                           Opinion of the Court
matter of federal constitutional law, this presumption is clearly
incorrect—post-conviction petitioners are neither entitled to
counsel nor funding for counsel.33 Mr. Menzies also cites no Utah
authority, or any other authority for that matter, to support the
point that the Utah Constitution affords him these rights.34
Because Mr. Menzies presumes, rather than establishes, that he
has a right to funding under both the United States and Utah
constitutions, his three aforementioned constitutional claims fail.
    B. The PCC Did not Abuse its Discretion in Denying Mr. Menzies
                        Further PCRA Funding
     ¶37 We also conclude that the PCC did not abuse its
discretion in denying Mr. Menzies‘s requests for additional
funding. The PCRA provides for ―reasonable‖ attorney fees and
litigation costs, with presumptive limits of $60,000 for attorney
fees and $20,000 for litigation costs.35 In assessing what constitutes
―reasonable‖ fees or whether a petitioner has demonstrated ―good
cause,‖ the court examines two factors: (1) whether further
research or investigation would be duplicative, and (2) whether
the outcome of such research or investigation is ―reasonably
likely‖ to support post-conviction relief.36
     ¶38 Mr. Menzies was afforded significant sums both for post-
conviction representation and for litigation costs. In fact, his lead
counsel was paid over $194,000 and permitted over $60,000 in
litigation expenses. Mr. Menzies hired several investigators and
experts, and he was also allowed to interview his prior attorneys

   33 Coleman v. Thompson, 501 U.S. 722, 752 (1991) (―There is no
constitutional right to an attorney in state post-conviction
proceedings. Consequently, a petitioner cannot claim
constitutionally ineffective assistance of counsel in such
proceedings.‖ (internal citations omitted)).
   34 As to his due process argument specifically, Mr. Menzies
cites only to Menzies III to support his contention that the PCRA
violates his right to due process under the Utah Constitution. This
argument is unfounded, as ―we [did] not address his federal and
state constitutional claims‖ in that case—our holding was limited
to the statutory guarantees of the PCRA. Menzies III, 2006 UT 81,
¶ 84.

   35   UTAH CODE § 78B-9-202(3).
   36   See id. § 78B-9-202(3)(a), (b), (e).

                                      17
                         MENZIES v. STATE
                       Opinion of the Court
and numerous witnesses. It was only after the extended discovery
period closed that the court began to limit funding and discovery
requests, particularly after learning that counsel had been paid
well over three times the presumptive limit since 2006. The PCC
examined Mr. Menzies‘s additional requests for discovery, the
evidence already uncovered through post-conviction discovery,
and the amounts already afforded to counsel, and it determined
that further discovery would be unnecessary, speculative, or
duplicative.
    ¶39 We agree that Mr. Menzies‘s additional requests for
discovery were speculative and sought evidence that would have
been either unnecessary or duplicative. We briefly examine
several of his specific requests here to illustrate the general nature
of his numerous additional discovery requests.
    ¶40 To begin, Mr. Menzies requested additional time to
interview the identification expert who determined that the
fingerprint on Mr. Denter‘s car belonged to Mrs. Hunsaker. He
also sought additional resources to hire his own fingerprint
expert. The PCC denied these requests because it found that he
―failed to provide the court with any legitimate, common-sense,
good-faith basis for believing that investigating the fingerprint
evidence will lead to the discovery of facts that would support a
finding of prejudice.‖ We agree. Mr. Menzies‘s request was
speculative because he provided no basis for concluding that the
original fingerprint expert would testify any differently than he
did over twenty years earlier. Further, nothing in the record
supports the conclusion that the fingerprint evidence was in any
way questionable. His requests were also unnecessary and
duplicative given the PCC‘s finding that he never indicated ―what
he believes an independent fingerprint expert might say after
reviewing the fingerprint evidence.‖ In essence, Mr. Menzies
provided the PCC with no basis for granting his request other
than his hope that the additional discovery might turn up
something favorable to his case.
    ¶41 As another example, Mr. Menzies asked to depose
Detective Judd in hopes that he might admit that (1) he planted
Mrs. Hunsaker‘s identification in the laundry hamper, (2) he
improperly influenced Mr. Larrabee during the identification
process, and (3) the police searched Mr. Menzies‘s apartment
illegally. These allegations are completely unsupported in the
record and are entirely speculative. Mr. Menzies provided the
PCC with no reasonable basis for assuming that Detective Judd
actually did any of these things or would have admitted such.

                                 18
                           Cite as: 2014 UT 40
                           Opinion of the Court
   ¶42 Another of Mr. Menzies‘s discovery requests speculated
that Ms. Wells might admit in a second deposition that she never
―interviewed Larrabee and Brown, and was unaware of their
sexual activity.‖ Even if true, Mr. Menzies does not show how this
finding would matter. As discussed more fully below, the jury
was fully aware that Mr. Larrabee was distracted at the time he
saw the man and woman together at Storm Mountain.37 Knowing
exactly what he and Ms. Brown were doing at the time would
have had no impact on the case. Furthermore, this request was
duplicative because Mr. Menzies deposed Ms. Wells during post-
conviction discovery and did not justify any need to depose her a
second time.
   ¶43 Based on the evidence before the PCC, we conclude that
the court did not abuse its discretion in denying Mr. Menzies‘s
additional discovery requests and concluding that he did not
sufficiently demonstrate good cause for additional funds, since
the requested discovery would have been either unnecessary,
speculative, or duplicative.
II. The PCC Did not Err in Allowing the State to File a Motion for
Summary Judgment and in Denying Mr. Menzies‘s Motions for a
             Continuance and Evidentiary Hearing
    ¶44 Mr. Menzies makes three procedural claims: (1) the PCC
should have required the State to answer his Fifth Amended
Petition before allowing it to file a motion for summary judgment,
(2) the PCC wrongly denied Mr. Menzies‘s rule 56(f) motion for a
continuance, and (3) the PCC was required to hold an evidentiary
hearing before ruling on the parties‘ summary judgment motions.
    ¶45 First, rule 65C of the Utah Rules of Civil Procedure does
not require the State to answer Mr. Menzies‘s petition before filing
a motion for summary judgment. Second, the PCC did not abuse
its discretion in denying Mr. Menzies‘s rule 56(f) motion. And
finally, the PCC did not abuse its discretion in declining to hold
an evidentiary hearing before ruling on the parties‘ cross-motions
for summary judgment. Accordingly, we affirm the PCC‘s rulings
on each of Mr. Menzies‘s procedural claims.




   37   See infra ¶ 141.

                                   19
                         MENZIES v. STATE
                       Opinion of the Court
    A. Rule 65C of the Utah Rules of Civil Procedure Allows the State
        to Respond to a Post-Conviction Petition with a Motion for
               Summary Judgment Rather than an Answer
   ¶46 Mr. Menzies contends that the PCC should have required
the State to answer his Fifth Amended Petition before filing a
motion for summary judgment. We disagree. Rule 65C of the Utah
Rules of Civil Procedure does not mandate that the State first
answer Mr. Menzies‘s petition before filing a motion for summary
judgment.38
    ¶47 Mr. Menzies argues that the language of rule 65C
requires a post-conviction court to first assess whether the petition
is frivolous; if the court determines it is not frivolous, then the
State must file an answer.39 We reject Mr. Menzies‘s argument
because his reasoning contradicts the text of rule 65C and our
prior cases interpreting the rule.
   ¶48 Rule 65C provides that ―if any claim in the petition
appears frivolous on its face, the court shall forthwith issue an


   38  It is unclear under which post-conviction procedural rule the
parties believe they are operating. Mr. Menzies‘s brief vacillates
on which post-conviction procedural rule applies in his case. At
points Mr. Menzies argues that rule 65B applies in this case. At
other points, he suggests rule 65C applies. Mr. Menzies‘s Fifth
Amended Petition specifically states that he petitions ―pursuant to
. . . Utah Rule of Civil Procedure 65C.‖ The State, for its part, does
not cite either rule in its brief. The PCC concluded that the current
version of rule 65C applies in Mr. Menzies‘s case.
      As we note above, supra n.32, both parties agree that the PCRA
applies to Mr. Menzies‘s Fifth Amended Petition. This dictates
that rule 65C applies, not rule 65B, because rule 65C‘s scope
includes ―proceedings in all petitions for post-conviction relief
filed under the Post-Conviction Remedies Act.‖ UTAH R. CIV. P.
65C(a).
   39 Mr. Menzies has actually argued that ―[r]ule 65B(b)(6)‖
requires the State to answer his Fifth Amended Petition. As we
note above, rule 65B is not the applicable procedural rule in this
case because Mr. Menzies‘s Fifth Amended Petition is governed
by the PCRA. But because his argument focuses on language
shared by rule 65B(b)(6) and rule 65C(k)—requiring that the
respondent ―answer or otherwise respond‖—we address his
argument as it relates to this shared language.

                                 20
                          Cite as: 2014 UT 40
                         Opinion of the Court
order dismissing the claim.‖40 If the claim is not frivolous, then
―the respondent shall answer or otherwise respond to the portions of
the petition that have not been dismissed and shall serve the
answer or other response upon the petitioner in accordance with
Rule 5(b).‖41 The petitioner may then respond ―[w]ithin 30 days
. . . after service of any motion to dismiss or for summary
judgment.‖42
    ¶49 Mr. Menzies‘s interpretation of the text of rule 65C(k)
focuses on the word ―answer‖ and glosses over the text of the rest
of the rule. The words ―or otherwise respond‖ and ―or other
response‖ read in conjunction with the sentence giving petitioners
thirty days to respond after service of motions ―for summary
judgment‖ conclusively establish that summary judgment
procedures are appropriate under rule 65C. There is nothing in
the text of rule 65C that suggests that the State must file an answer
before a motion for summary judgment.
    ¶50 In prior decisions we have reached a similar conclusion.
In Archuleta v. Galetka, we rejected essentially the same argument
that Mr. Menzies makes here and noted that ―[the] argument that
a district court may never render summary judgment in a death
penalty case is simply wrong.‖43 In that case we affirmed the post-
conviction court‘s grant of summary judgment to the state.44
Although there we did not decide whether rule 65B or rule 65C
governed the petitioner‘s claims (because the result would have
been the same regardless of which rule applied), our opinion
stated that summary judgment was appropriate in either case.45
   ¶51 Mr. Menzies also argues that due process dictates that the
State respond to his post-conviction petition with an answer
rather than a motion for summary judgment. We reject this

   40   UTAH R. CIV. P. 65C(h)(1).
   41   Id. 65C(k) (emphases added).
   42   Id. (emphasis added).
   43 2011 UT 73, ¶ 49, 267 P.3d 232, cert. denied, 133 S. Ct. 112
(2012).
   44   Id. ¶ 170.
   45Id. ¶ 48 (concluding that petitioner‘s argument that the post-
conviction court erred in dismissing his claims on summary
judgment ―fails whether Archuleta‘s petition is governed by
common law habeas corpus rules or by the PCRA‖).

                                     21
                           MENZIES v. STATE
                         Opinion of the Court
argument because he has provided no applicable authority or
justification for this contention. The only authority he points to in
this regard is Rashidi v. Albright, a case decided by a federal
district court in Nevada.46 There the court interpreted Federal
Rule of Civil Procedure 56(b), which governs summary judgment,
and concluded that the rule did not preclude courts from ruling
on a summary judgment motion before a defendant files an
answer to the complaint.47 But the court also noted that ―[i]n some
instances it may be necessary for a court to order defendants to
file a responsive pleading before deciding the motion for
summary judgment.‖48 The court did not enumerate a precise set
of ―instances‖ that would require the filing of a responsive
pleading first but noted only that such practice would be helpful
―[i]n certain contexts . . . to help clarify issues and assist the court
in determining whether there are any genuine issues of fact.‖49
    ¶52 Rashidi does not support Mr. Menzies‘s argument that
due process required the State to answer his petition. In fact, it
does just the opposite by allowing parties to respond to a
complaint with a motion for summary judgment. Only ―[i]n some
instances‖ should a court order a party to respond with an answer
first, and this case is not one of those instances.50 As the PCC
noted, the existing record and Mr. Menzies‘s evidentiary proffer
provided the PCC with ample ability to ―provide a meaningful
review of the issues.‖ Mr. Menzies points to no other binding or
persuasive authority for the contention that rule 65C violates due
process.
    ¶53 Mr. Menzies‘s argument that the State must file an
answer misreads the text of rule 65C and our decisions
interpreting the rule. The PCC correctly held that rule 65C allows
the State to file a motion for summary judgment instead of an
answer.




   46   818 F. Supp. 1354 (D. Nev. 1993).
   47   Id. at 1357.
   48   Id.
   49   Id.
   50   Id.

                                  22
                         Cite as: 2014 UT 40
                       Opinion of the Court
    B. The PCC Did not Abuse Its Discretion in Denying Mr. Menzies
         a Rule 56(f) Continuance or in Denying Him a Rule 43(b)
                           Evidentiary Hearing
   ¶54 Next, Mr. Menzies claims that the PCC should have
granted him a rule 56(f) continuance to conduct additional
discovery and that it should have held an evidentiary hearing
before ruling on the cross-motions for summary judgment. We
conclude that the PCC did not abuse its discretion in denying both
requests.
1. The PCC Did not Abuse its Discretion in Denying
Mr. Menzies‘s Motion for a Rule 56(f) Continuance
   ¶55 Mr. Menzies argues that the PCC abused its discretion in
denying his motion for a rule 56(f) continuance. He filed his
motion for a rule 56(f) continuance in June 2011, which the PCC
denied three months later. He then filed several motions for
reconsideration and renewals of the motion. In each case, the PCC
denied his requests. We affirm.
    ¶56 As we noted above, ―[w]e review the denial of a rule 56(f)
motion for an abuse of discretion.‖51 ―Under this standard, we
will not reverse unless the decision exceeds the limits of
reasonability.‖52 Rule 56(f) allows courts to order a continuance
where a party opposing summary judgment is unable to present
affidavits that are essential to the party‘s opposition. In full, rule
56(f) provides as follows:
        Should it appear from the affidavits of a party
        opposing the motion [for summary judgment] that
        the party cannot for reasons stated present by
        affidavit facts essential to justify the party‘s
        opposition, the court may refuse the application for
        judgment or may order a continuance to permit
        affidavits to be obtained or depositions to be taken
        or discovery to be had or may make such other
        order as is just.
In Overstock.com, Inc. v. SmartBargains, Inc., we identified some
relevant factors for determining whether a court exceeded the


   51 Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55, ¶ 20,
192 P.3d 858.
   52  Crossland Sav. v. Hatch, 877 P.2d 1241, 1243 (Utah 1994)
(internal quotation marks omitted).

                                 23
                           MENZIES v. STATE
                        Opinion of the Court
limits of reasonability in ruling on a rule 56(f) motion, including
the following: (1) whether the discovery sought in the party‘s rule
56(f) affidavit ―will uncover disputed material facts that will
prevent the grant of summary judgment‖ or whether the request
is merely a ―fishing expedition,‖ (2) whether the party opposing
summary judgment ―has had adequate time to conduct discovery
and has been conscientious in pursuing such discovery,‖ and
(3) whether the moving party has been diligent in responding to
discovery requests by the opposing party.53
    ¶57 The first Overstock.com, Inc. factor allows us to consider
whether the discovery requested in a rule 56(f) motion is merely a
―fishing expedition‖ or will instead produce material facts that
will prevent summary judgment. Mr. Menzies argues that further
discovery might lead various witnesses to make admissions
favorable to his case. First, he argues that prosecutors might admit
that Mr. Britton, the jail inmate who testified against Mr. Menzies
at the preliminary hearing, was mentally ill and that they knew
Mr. Larrabee saw only a side profile of the man‘s face while at
Storm Mountain. Second, he suggests that Detective Judd might
admit that (1) he created the composite photo using Mr. Menzies‘s
mug shot, (2) the police told Mr. Larrabee before the lineup that
the man he earlier identified was in custody, (3) the police placed
Mrs. Hunsaker‘s identification cards in the laundry hamper, and
(4) the police searched Mr. Menzies‘s home illegally. Finally, he
suggests that Ms. Wells might admit that she (1) did not interview
Mr. Larrabee and Ms. Brown, and was not aware that the two
were engaged in sexual activity while at Storm Mountain, (2)
failed to tell Mr. Menzies about the strength of the State‘s
evidence against him, (3) failed to discuss trial strategy
alternatives with Mr. Menzies, (4) did not seek Mr. Menzies‘s help
in creating a viable defense theory, and (5) failed to consider
Mr. Denter‘s involvement in the case.
    ¶58 The evidence that Mr. Menzies suggests he might obtain
is either unnecessary, speculative, or duplicative. He offers no
rational explanation for why he thinks the proposed deponents
might admit to the allegations he suggests. While it is possible
these people might make favorable admissions, it is far more
likely that they might stick to their trial testimony, which in no
way supports his claims.



   53   2008 UT 55, ¶ 21 (internal quotation marks omitted).

                                  24
                           Cite as: 2014 UT 40
                           Opinion of the Court
    ¶59 For instance, Mr. Menzies provides no basis for assuming
that the prosecutors in his case would testify that they withheld
evidence of Mr. Britton‘s mental illness. Moreover, even if the
prosecutors did admit to the allegations, their testimony would be
irrelevant for purposes of proving ineffective assistance because,
as we note below, Mr. Menzies has not shown that his trial
counsel could have reasonably learned of Mr. Britton‘s mental
illness.54 And finally, as the PCC noted, any claim based on the
testimony would likely be procedurally barred because it could
have been brought on direct appeal.
    ¶60 We have already addressed Mr. Menzies‘s request to
depose Detective Judd.55 As we note above, Mr. Menzies provides
no reason why Detective Judd would make the damning
admissions that Mr. Menzies suggests. Faced with bald
allegations against Detective Judd, the PCC found it was ―not
reasonably likely‖ that he would testify as Mr. Menzies suggests
and admit that he lied at trial. For many of the same reasons, the
PCC properly denied Mr. Menzies‘s request to once again depose
Ms. Wells.56 Mr. Menzies provides no evidence to support his
assertion that Ms. Wells will change her testimony if a second
deposition were conducted. Furthermore, much of what
Mr. Menzies suggests he might obtain from a second deposition
was already before the PCC from Mr. Menzies‘s own affidavit,
and since the State did not contest his affidavit for purposes of
summary judgment, it would have been unnecessarily redundant
to depose Ms. Wells a second time.
    ¶61 In any case, Mr. Menzies has failed to show that these
―discovery requests[,] . . . if answered, would affect the outcome
of the summary judgment motion.‖57 Simply wishing to obtain
relevant facts is not enough to justify a rule 56(f) motion and
Mr. Menzies does not explain how his requested discovery would

   54   Infra ¶¶ 131–38.
   55   Supra ¶ 41.
   56   Supra ¶ 42.
   57 Overstock.com, Inc., 2008 UT 55, ¶ 26; see also Salt Lake Cnty. v.
W. Dairymen Coop., Inc., 2002 UT 39, ¶ 24, 48 P.3d 910 (holding
that the district court should have granted a rule 56(f) motion
because the motion ―requested an opportunity to continue with
factual exploration on an issue that could have defeated . . .
summary judgment‖).

                                   25
                         MENZIES v. STATE
                        Opinion of the Court
produce material facts that could defeat the State‘s summary
judgment motion.58 Accordingly, we cannot conclude based on
this first Overstock.com, Inc. factor that it was unreasonable for the
PCC to deny a rule 56(f) continuance.
    ¶62 Under the second Overstock.com, Inc. factor, we look to
whether the party opposing summary judgment has had adequate
discovery time and has been diligent in performing discovery.
While there is no bright-line test for determining whether a court
abused its discretion in ruling on a rule 56(f) motion, our case law
suggests that where the party seeking a continuance is dilatory, it
is unlikely we will reverse a denial of a rule 56(f) motion. 59 Here,
there is no question that Mr. Menzies and his counsel have
diligently pursued discovery. In fact, the PCC specifically
recognized counsel‘s diligent pursuit of discovery.
    ¶63 But diligently pursuing discovery does not foreclose the
possibility that a court may reasonably exercise its discretion and
deny a rule 56(f) continuance motion. Here the PCC noted that
both parties in this case had ample time to conduct discovery. In
fact, Mr. Menzies had approximately five years after our decision
in Menzies III to conduct investigation and discovery. His current
lead counsel filed a proposed case management order on January
20, 2010, that suggested a July 31, 2010 deadline to complete
discovery. The PCC extended the discovery period almost two


   58 Mr. Menzies cites Tiffany Fine Arts, Inc. v. United States, 469
U.S. 310, 321 (1985), for the proposition that ―seeking relevant
information can never be considered a ‗fishing expedition.‘‖ The
case does not stand for that proposition in the context of a rule
56(f) motion. Instead, the case concerned the Internal Revenue
Service‘s (IRS) summons power. In addressing legislative history
that expressed concern over whether the IRS might use its
summons power for fishing expeditions, the Court stated that
―the IRS is not engaged in a ‗fishing expedition‘ when it seeks
information relevant to a legitimate investigation of a particular
taxpayer.‖ Id. That reasoning is inapplicable to the case before us.
   59 See, e.g., W. Dairymen Coop., Inc., 2002 UT 39, ¶¶ 28–29
(holding that the district court abused its discretion in denying a
rule 56(f) motion where the party seeking a continuance was not
dilatory); Crossland Sav., 877 P.2d at 1243 (holding that the district
court did not abuse its discretion in denying a rule 56(f) motion
where the ―district court could have concluded‖ that the party
seeking a continuance was dilatory).

                                 26
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                        Opinion of the Court
and one-half months, and closed discovery on September 29, 2010.
The PCC noted that during the extended discovery period
Mr. Menzies did not conduct any additional discovery. And as the
State pointed out at oral argument, the PCC allowed Mr. Menzies
to take depositions even after discovery closed. The court has paid
Mr. Menzies‘s current post-conviction counsel over $194,000 and
authorized over $60,000 in litigation expenses. These amounts far
exceed the current PCRA‘s presumptive limits of $60,000 for
attorney fees and $20,000 for litigation costs.60
    ¶64 Mr. Menzies argues that the busy schedule of his current
lead counsel has not allowed that counsel to adequately
investigate this case‘s voluminous record. Although this is an
important consideration, the PCC appears justified in concluding
that ―[t]his court is simply ruling that such work has been
effective and cannot go on without end.‖ We have previously
sanctioned denials of rule 56(f) motions where the discovery
period was much shorter than here.61 We recognize that the
record is likely more extensive than the record in other cases
where we have found the discovery time period sufficient, but we
cannot say that the PCC unreasonably concluded that
Mr. Menzies has had adequate time and resources to conduct
discovery.
   ¶65 Finally, under the third Overstock.com, Inc. factor we
consider whether the moving party has been diligent in
responding to discovery requests. We find nothing in the record
that suggests the State has not been diligent in responding to
Mr. Menzies‘s discovery requests. The only indication suggesting
otherwise is a request for discovery sanctions filed by
Mr. Menzies. But the PCC denied that request as untimely
because Mr. Menzies challenged the State‘s responses to certain
discovery inquiries as inadequate almost a year after receiving the
responses. Additionally, the PCC noted that the State‘s responses

   60   UTAH CODE § 78B-9-202(3).
   61 See Crossland Sav., 877 P.2d at 1243 (affirming a denial of a
rule 56(f) motion where the discovery period was approximately
four months); Hunt v. Hurst, 785 P.2d 414, 416 (Utah 1990)
(affirming a denial of a rule 56(f) motion where the discovery
period was approximately eight months (including a five-month
extension)). Contra W. Dairymen Coop., Inc., 2002 UT 39, ¶ 29
(reversing a denial of a rule 56(f) motion where the discovery
period was approximately two months).

                                 27
                            MENZIES v. STATE
                       Opinion of the Court
could not be considered inadequate merely because the State‘s
references to the record did not include pinpoint record citations.
The State‘s diligence in responding to discovery requests weighs
in favor of concluding that the PCC did not abuse its discretion.
   ¶66 In sum, the first and third Overstock.com, Inc. factors
weigh in favor of concluding that the PCC reasonably denied a
continuance. The second factor likely weighs in favor of neither
party, and in any event does not favor Mr. Menzies significantly
enough for us to hold that the PCC abused its discretion.
Accordingly, we conclude that the PCC did not abuse its
discretion in denying Mr. Menzies‘s request for a rule 56(f)
continuance.
2. The PCC Did not Abuse Its Discretion in Denying Mr. Menzies
an Evidentiary Hearing Before Ruling on the Cross-Motions for
Summary Judgment
   ¶67 The PCC also did not abuse its discretion in declining to
hold an evidentiary hearing before ruling on the cross-motions for
summary judgment. Mr. Menzies argues that the PCC should
have granted his motion for an evidentiary hearing under rule
43(b) of the Utah Rules of Civil Procedure before issuing its
summary judgment order, but in reality his motion was merely a
regurgitation of his previous motions for a rule 56(f) continuance.
   ¶68 Rule 43(b) states that
         [w]hen a motion is based on facts not appearing of
         record the court may hear the matter on affidavits
         presented by the respective parties, but the court
         may direct that the matter be heard wholly or partly
         on oral testimony or depositions.
Mr. Menzies reads rule 43(b) to require a court to hold an
evidentiary hearing before granting summary judgment, and
argues that it is an abuse of discretion for a court to deny such a
hearing unless ―the findings of fact, verdict, or sentence go
unchallenged.‖ Furthermore, he argues that it is an abuse of
discretion to deny an evidentiary hearing where the affidavits on
their face suggest Strickland prejudice to any degree. To support
his argument, Mr. Menzies cites Karis v. Calderon62 and Ross v.
State,63 both of which he misreads.64


   62   283 F.3d 1117 (9th Cir. 2002).
   63   2012 UT 93, 293 P.3d 345.

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                       Opinion of the Court
    ¶69 At bottom, rule 43(b) does not require courts to grant an
evidentiary hearing simply because a petitioner‘s affidavits
suggest that certain deponents may potentially offer favorable
testimony. If the affidavits themselves do not raise a genuine issue
of material fact, as they did not here, a court does not abuse its
discretion in denying further discovery and evidentiary hearings.
As noted by the PCC, a court‘s concern under rule 43(b) is
whether the ―voluminous record, despite the claims of insufficient
discovery [in the petitioner‘s rule 43(b) motion], present th[e]
court with enough facts that the court is able to decide the cross
motions for summary judgment without further discovery,
affidavits, or an evidentiary hearing.‖




   64  Mr. Menzies cites Ross for the proposition that ―[w]here
unopposed facts are presented by affidavit which suggest
Strickland prejudice, a court abuses its discretion when it grants
summary judgment without first holding an evidentiary hearing.‖
This misstates Ross‘s holding. Ross reiterated the well-established
rule that ―genuine issues of material fact preclude summary
judgment.‖ Id. ¶ 51. In Ross, we reversed a grant of summary
judgment because the record was ambiguous regarding counsel‘s
actions, and so, we could not conclude whether counsel‘s action
were objectively unreasonable. Id. Nothing in our opinion
requires a court to delay deciding a motion for summary
judgment simply because the petitioner asks for an evidentiary
hearing. And our decision in no way mandates that courts grant
evidentiary hearings before ruling on a motion for summary
judgment.
    Furthermore, the Karis case from the Ninth Circuit actually
supports our conclusion. The court concluded in that case that the
district court did not abuse its discretion in denying a habeas
petitioner an evidentiary hearing because ―even assuming [the
petitioner‘s] allegations to be true, they do not entitle him to
habeas relief.‖ 283 F.3d at 1127. Here, the PCC declined to hold an
evidentiary hearing for the same reason. That is, it concluded that
none of the evidence Mr. Menzies suggested which might be
derived from holding an evidentiary hearing would raise a
genuine issue of material fact. Karis simply does not support
Mr. Menzies‘s argument that ―the only basis for denying an
evidentiary hearing is if the findings of fact, verdict, or sentence
go unchallenged.‖

                                29
                           MENZIES v. STATE
                        Opinion of the Court
    ¶70 The PCC denied Mr. Menzies‘s rule 43(b) motion,
recognizing that his requests would not have raised any genuine
issue of material fact. It concluded that much of the information
Mr. Menzies suggested might be obtained from the hearing would
be unnecessary, speculative, or duplicative. We agree with the
PCC. Much of the information Mr. Menzies sought overlapped
with his repeated discovery requests under rule 56(f) that we
address above—none of which would have raised a genuine issue
of material fact.65 For this reason, the PCC concluded that the
information he sought at an evidentiary hearing would not
―impact what trial counsel did at the time and what trial counsel
did not do.‖ Because Mr. Menzies‘s discovery requests were either
unnecessary, speculative, or duplicative, the PCC did not abuse its
discretion in declining to hold an evidentiary hearing.
     III. Mr. Menzies Did not Receive Ineffective Assistance of
           Counsel During the Guilt-Phase, Penalty-Phase,
                     or Appellate Proceedings
   ¶71 The Sixth Amendment to the United States Constitution
provides a criminal defendant ―the right . . . to have the
Assistance of Counsel for his defence.‖66 A corollary is that ―the
right to counsel is the right to the effective assistance of
counsel.‖67
    ¶72 Mr. Menzies argues that he received ineffective assistance
of counsel both at trial and on appeal. The PCRA allows a post-
conviction petitioner to raise ineffective assistance claims where
the petitioner had the same counsel at both trial and on appeal.68
That is the situation here. Because LDA represented Mr. Menzies




   65   Supra ¶¶ 55–66.
   66   U.S. CONST. amend. VI.
   67Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal
quotation marks omitted); Lafferty v. State, 2007 UT 73, ¶ 11, 175
P.3d 530 (―Implicit in the Sixth Amendment‘s guarantee of
counsel is the right to effective assistance of counsel.‖).
   68 UTAH CODE § 78B-9-104(1)(d) (―Unless precluded by Section
78B-9-106 or 78B-9-107, a person . . . may file an action . . . for post-
conviction relief [on the] grounds [that] . . . the petitioner had
ineffective assistance of counsel in violation of the United States
Constitution or Utah Constitution.‖).

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                        Opinion of the Court
at trial and on appeal, his ineffective assistance claims, except for
two,69 are properly before us.
    ¶73 In his Fifth Amended Petition, Mr. Menzies raised
approximately twenty ineffective assistance of counsel claims,
some of which contained numerous subparts. The PCC granted
summary judgment for the State and ordered that Mr. Menzies‘s
Fifth Amended Petition be dismissed. Mr. Menzies appeals the
PCC‘s decision on ten claims and argues that his counsel:
(1) failed to use an adequate defense theory, (2) failed to properly
impeach testimony from one of Mr. Menzies‘s fellow inmates,
Mr. Britton, (3) inadequately investigated Mr. Larrabee and
Ms. Brown‘s eyewitness testimony and failed to move to suppress
their testimony, (4) created a conflict of interest by having him
sign a liability waiver, (5) were inadequately qualified and
prepared for penalty-phase proceedings, (6) failed to conduct an
adequate penalty-phase investigation, (7) failed to present
adequate mitigating evidence, (8) hid evidence of trial counsel‘s
errors and Mr. Menzies‘s alleged organic brain damage, (9) failed
to conduct an appellate investigation, and (10) failed to object to
the jury instruction regarding the ―beyond a reasonable doubt‖
standard.


   69  Mr. Menzies raises two claims for the first time on appeal,
both of which we decline to reach as unpreserved. First, he argues
that trial and appellate counsel were ineffective in failing to raise a
due process claim based on the fact that the jury prejudicially saw
him in handcuffs. The PCC agreed with the State that because the
claim was not raised in Mr. Menzies‘s Fifth Amended Petition, it
was procedurally barred. We agree with the PCC that the claim is
unpreserved and decline to reach it on appeal because
Mr. Menzies does not argue that either exceptional circumstances
or plain error justify review. See Kell v. State, 2012 UT 25, ¶ 36, 285
P.3d 1133 (―[T]he preservation rule applies to every claim,
including constitutional questions, unless a defendant can
demonstrate that exceptional circumstances exist or plain error
occurred.‖ (internal quotation marks omitted)). Second,
Mr. Menzies argues that trial counsel should have advised him of
the option to plead guilty under North Carolina v. Alford, 400 U.S.
25 (1970). We decline to reach this claim as well, for the same
reasons—it is unpreserved, and Mr. Menzies does not argue that
either exceptional circumstances or plain error justify review. See
Kell, 2012 UT 25, ¶ 36.

                                  31
                            MENZIES v. STATE
                        Opinion of the Court
    ¶74 We affirm the PCC‘s decision granting the State summary
judgment on each of these claims because, even accepting
Mr. Menzies‘s version of the facts, he is unable to raise a genuine
issue of material fact showing that his counsel‘s performance was
deficient and prejudiced his case.
   ¶75 Each of Mr. Menzies‘s ineffective assistance claims is
governed by the two-part test set forth in Strickland v. Washington,
which requires the defendant to show (1) ―that counsel‘s
performance was deficient‖ and (2) that ―the deficient
performance prejudiced the defense.‖70 In Archuleta v. Galetka, we
noted that our case law has restated Strickland as follows: ―[t]o
prevail, a defendant must show, first, that his counsel rendered a
deficient performance in some demonstrable manner, which
performance fell below an objective standard of reasonable
professional judgment and, second, that counsel‘s performance
prejudiced the defendant.‖71
    ¶76 The first prong of Strickland requires Mr. Menzies to show
―that counsel‘s performance was deficient.‖72 In essence, the
inquiry into counsel‘s performance should focus on ―whether
counsel‘s assistance was reasonable considering all the
circumstances.‖73 We ―must indulge a strong presumption that
counsel‘s conduct falls within the wide range of reasonable
professional assistance.‖74 This presumption is only overcome by
a demonstration ―that the challenged actions cannot be
considered sound strategy under the circumstances.‖75
Importantly, in assessing whether counsel‘s performance was
deficient, we must look at the facts and law available to counsel at
the time of the representation.76


   70   466 U.S. at 687.
   71 2011 UT 73, ¶ 38, 267 P.3d 232, cert. denied, 133 S. Ct. 112
(2012) (internal quotation marks omitted).
   72   Strickland, 466 U.S. at 687.
   73   Id. at 688.
   74   Id. at 689.
   75   Menzies III, 2006 UT 81, ¶ 89, 150 P.3d 480.
   76See Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011) (analyzing
counsel‘s performance under ―the standard of professional
competence in capital cases that prevailed in Los Angeles in
1984‖); State v. Dunn, 850 P.2d 1201, 1228 (Utah 1993) (―To
                                                          (continued)
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                          Opinion of the Court
    ¶77 In addition to deficient performance, Strickland requires
that ―any deficiencies in counsel‘s performance must be
prejudicial to the defense.‖77 The defendant generally has the
obligation to affirmatively prove prejudice and ―must show that
there is a reasonable probability that, but for counsel‘s
unprofessional errors, the result of the proceeding would have
been different.‖78 Because the exact formulation of the prejudice
standard differs depending on which phase of the proceedings is
at issue, we describe the relevant prejudice standard at each of the
guilt-phase, penalty-phase, and appellate proceedings below.
    ¶78 A satisfactory showing of both parts of the Strickland test
is required for the defendant to prevail.79 ―As a result, it is not
necessary for us to address both components of the inquiry if we
determine that a defendant has made an insufficient showing on
one.‖80 Each of Mr. Menzies‘s ineffective assistance challenges is
treated separately below using the Strickland framework.
    ¶79 Before examining the merits of Mr. Menzies‘s ineffective
assistance claims, we briefly address two issues that impact each
of his claims. First, we discuss how the procedural posture of this
case affects our analysis of Mr. Menzies‘s ineffective assistance
claims. Second, we describe the relevance of the American Bar
Association (ABA) Standards and other professional standards
that Mr. Menzies relies on.




establish a claim of ineffectiveness based on an oversight or
misreading of law, a defendant bears the burden of demonstrating
why, on the basis of the law in effect at the time of trial, his or her trial
counsel‘s performance was deficient.‖(emphasis added)).
   77   Strickland, 466 U.S. at 692.
   78   Id. at 694.
   79  See Parsons v. Barnes, 871 P.2d 516, 522 (Utah 1994) (requiring
defendants to ―affirmatively prove both prongs of the Strickland
test to prevail‖).
   80 Archuleta, 2011 UT 73, ¶ 41 (internal quotation marks
omitted).

                                       33
                           MENZIES v. STATE
                           Opinion of the Court
       A. The Effect of the Summary Judgment Standard and Prevailing
                Professional Norms on Mr. Menzies’s Ineffective
                                Assistance Claims
1. The Summary Judgment Standard
    ¶80 Before the PCC, both parties filed motions for summary
judgment, and each argued that it is entitled to judgment as a
matter of law and that there are no genuine issues of material
fact.81 Each party has also opposed the other party‘s motion for
summary judgment and argued that there are many factual
disputes.82 The PCC rejected Mr. Menzies‘s ineffective assistance
claims and granted the State‘s motion for summary judgment.
    ¶81 ―The determination of which party must come forward
with evidence proving that there is a genuine material dispute of
fact depends on which party bears the burden of proof on the
underlying legal theory or claim that is the subject of the
summary judgment motion.‖83 Here, Mr. Menzies bears the
burden of proving his underlying legal claims of ineffective
assistance of counsel. Accordingly, with respect to the State‘s
motion for summary judgment, the State bears the initial burden
of showing that it ―is entitled to judgment and that there is no
genuine issue of material fact that would preclude summary
judgment in [its] favor.‖84 Once the State makes that showing, the
burden of proof then shifts to the nonmoving party, here
Mr. Menzies. And because Mr. Menzies bears the burden of
proving ineffective assistance, he ―cannot rest on [his] allegations
alone, particularly when the parties had an opportunity to




   81 It is settled law that ―[c]ross-motions for summary judgment
do not ipso facto dissipate factual issues, even though both parties
contend for the purposes of their motions that they are entitled to
prevail because there are no material issues of fact.‖ Amjacs
Interwest, Inc. v. Design Assocs., 635 P.2d 53, 55 (Utah 1981).
   82 We note that for purposes of its own summary judgment
motion the State accepted all of Mr. Menzies‘s factual allegations
to the extent they did not conflict with the existing record.
   83   Jones & Trevor Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 30, 284 P.3d
630.
   84   Id.¶ 29.

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                          Opinion of the Court
conduct discovery.‖85 Instead, he ―must set forth specific facts
showing that there is a genuine issue for trial.‖86
   ¶82 With this background, we next address the relevance of
ABA and other professional standards in analyzing Mr. Menzies‘s
ineffective assistance claims.
2. Professional Standards
    ¶83 Several of Mr. Menzies‘s ineffective assistance arguments
rely on ABA standards and National Legal Aid and Defense
Association (NLADA) standards. We address his specific
arguments regarding these standards in our analysis of his
ineffective assistance claims. It is helpful at the outset, however, to
note the weight we give such standards in conducting our
Strickland analysis.
    ¶84 Strickland recognized that ABA standards and other
practice norms ―are guides to determining what is reasonable.‖87
But such standards and norms are ―only guides‖ and ―[n]o
particular set of detailed rules for counsel‘s conduct can
satisfactorily take account of the variety of circumstances faced by
defense counsel or the range of legitimate decisions regarding
how best to represent a criminal defendant.‖88
    ¶85 In Menzies III, we addressed Mr. Menzies‘s ineffective
assistance claims regarding his former post-conviction counsel,
Edward Brass, by consulting the 2003 version of the ABA
Guidelines for the Appointment and Performance of Counsel in
Death Penalty Cases. There it was clear that Mr. Brass ―went far
beyond‖ failing to comply with ABA standards.89 For instance,
Guideline 10.15.1(E)(4) requires counsel to ―continue an
aggressive investigation of all aspects of the case.‖ Mr. Brass‘s
conduct fell well below this standard because he provided




   85   Id. ¶ 30 (internal quotation marks omitted).
   86   Id. (internal quotation marks omitted).
   87   Strickland, 466 U.S. at 688.
   88 Id. at 688–89; Menzies III, 2006 UT 81, ¶ 90 (noting that ―we
rely on the ABA Death Penalty Guidelines to the extent they are
relevant to our decision‖).
   89   Menzies III, 2006 UT 81,¶ 94.

                                       35
                         MENZIES v. STATE
                      Opinion of the Court
―virtually no representation and willfully disregarded nearly
every aspect of Menzies‘ case.‖90
   ¶86 More recently, in Archuleta, we reaffirmed the relevance
of ABA standards in conducting our Strickland analysis. There the
petitioner relied on the 1989 version of the ABA Guidelines for the
Appointment and Performance of Counsel in Death Penalty
Cases. We stated that the ―United States Supreme Court has on
multiple occasions indicated that the ABA Guidelines extant at the
time of challenged attorney performance form the baseline for
what constitutes reasonable investigation.‖91
    ¶87 We have also indicated, however, that noncompliance
with ABA guidelines does not automatically establish ineffective
assistance. In Lafferty v. State,92 the petitioner grounded his post-
conviction ineffective assistance claim on trial counsel‘s alleged
noncompliance with ABA guidelines. We rejected the claim and
stated that ―noncompliance with the ABA guidelines is not, by
itself, grounds for reversal.‖93
    ¶88 Mr. Menzies relies on several different guidelines in his
briefs, including (1) the 1979 ABA Standards for the Defense
Function, (2) the 1987 NLADA Standards for Performance of
Counsel in Death Penalty Cases, (3) the 1989 and 2003 ABA
Guidelines for the Appointment and Performance of Counsel in
Death Penalty Cases, (4) the ABA Model Rules of Professional
Conduct and commentary on those rules, and (5) the Utah Rules
of Professional Conduct and Utah State Bar ethics advisory
opinions applying those rules. Where Mr. Menzies relies on
standards that would have been available to counsel we give them
appropriate weight. But neither the 2003 nor the 2010 guidelines
relied on by Mr. Menzies would have been available to either trial




   90   Id.
   91 Archuleta, 2011 UT 73, ¶ 121 n.10; see also Wiggins v. Smith,
539 U.S. 510, 524 (2003) (―Counsel‘s conduct similarly fell short of
the standards for capital defense work articulated by the
American Bar Association (ABA)-standards to which we long
have referred as ‗guides to determining what is reasonable.‘‖
(quoting Strickland, 466 U.S. at 688)).
   92   2007 UT 73.
   93   Id. ¶ 55.

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                          Opinion of the Court
or appellate counsel. Consequently, we give little weight to the
arguments made by Mr. Menzies that rely on those standards.94
    ¶89 Below we address each of Mr. Menzies‘s ineffective
assistance claims as they relate to counsel‘s performance during
the guilt-phase, penalty-phase, and appellate proceedings.
        B. Mr. Menzies Has not Raised a Genuine Issue of Material Fact
              Regarding Trial Counsel’s Guilt-Phase Representation
    ¶90 Mr. Menzies raises four ineffective assistance claims
regarding trial counsel‘s guilt-phase representation. He argues
that his trial counsel (1) erroneously pursued a failure-of-proof
defense instead of a mental illness defense theory; (2) failed to
properly impeach testimony from one of Mr. Menzies‘s fellow jail
inmates, Mr. Britton, concerning an alleged confession by
Mr. Menzies; (3) failed to elicit the specific reason that
Mr. Larrabee and Ms. Brown were distracted at the time they
allegedly saw Mr. Menzies at the scene of the crime, and
unreasonably choose to impeach Mr. Larrabee‘s and Ms. Brown‘s
identification evidence rather than seek suppression of it; and
(4) denied Mr. Menzies his right to conflict-free counsel by having
him sign a liability waiver.
    ¶91 The Strickland two-part test governs claims of
ineffectiveness regarding counsel‘s guilt-phase representation.
The prejudice standard in the context of a guilt-phase ineffective
assistance claim requires Mr. Menzies to show that ―there is a
reasonable probability that, but for counsel‘s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.‖95 Further, ―[i]t is not enough to show

   94  See Archuleta, 2011 UT 73, ¶ 121 n.10 (―[T]he ABA Guidelines
extant at the time of challenged attorney performance form the
baseline for what constitutes reasonable investigation.‖).
Mr. Menzies cites Rompilla v. Beard, 545 U.S. 374 (2005), for the
proposition that courts may apply guidelines not in circulation at
the time of the counsel‘s challenged conduct. Rompilla does not
stand for this proposition. There the Supreme Court consulted
two versions of an ABA standard, one that existed at the time of
trial and one that did not. Id. at 387 n.6. The court noted, however,
that there was ―no material difference between‖ the two. Id. at 387
n.6.
   95   Strickland, 466 U.S. at 694.

                                       37
                          MENZIES v. STATE
                         Opinion of the Court
that the errors had some conceivable effect on the outcome of the
proceeding.‖96 Instead, ―[t]he likelihood of a different result must
be substantial, not just conceivable.‖97
    ¶92 For the reasons explained below, we affirm the PCC‘s
ruling and hold that Mr. Menzies has not raised a genuine issue of
material fact as to either part of the Strickland test concerning trial
counsel‘s guilt-phase representation.
1. Trial Counsel‘s Decision to Use a Failure-of-Proof Defense
Rather than a Mental Illness Defense Was not Unreasonable, and
Mr. Menzies Has not Shown Prejudice
   ¶93 Mr. Menzies first argues that trial counsel unreasonably
pursued a failure-of-proof defense rather than a mental illness
defense. More specifically, he argues that trial counsel could have
asserted a diminished mental capacity defense and that this
defense would have resulted in a reduction of his conviction to
second degree murder. In addition, Mr. Menzies argues that he
could have alternatively pled ―guilty and mentally ill‖ under Utah
Code section 77-35-21.5 (Supp. 1983).
    ¶94 We affirm. In light of the weaknesses in the State‘s case
and Mr. Menzies‘s insistence that he did not commit the murder,
Mr. Menzies fails to raise any genuine issue of material fact
concerning counsel‘s investigation and defense strategy and also
fails to establish prejudice. Before addressing the specifics of
Mr. Menzies‘s claim, we recite some additional facts to give
context to our analysis.
   a. Additional facts relevant to trial counsel‘s defense strategy
    ¶95 Trial counsel‘s failure-of-proof defense strategy consisted
of two parts. First, trial counsel argued that the State failed to
meet its burden to prove that Mr. Menzies killed Mrs. Hunsaker.
Second, and in the alternative, trial counsel argued that the State
failed to prove the existence of an aggravator that would support
a capital homicide conviction.
    ¶96 Before trial, counsel arranged for two different
psychological assessments of Mr. Menzies. They first asked
clinical psychologist Michael D. DeCaria to evaluate him. In the
relevant portion of his report, Dr. DeCaria stated as follows:


   96 Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (internal
quotation marks omitted).
   97   Id. at 792.

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                       Opinion of the Court
       It is possible that Mrs. Hunsaker did something
       unwittingly and as innocent as a facial expression or
       a word or a gesture which stimulated Mr. Menzies‘
       mental illness in the guise of a brief, reactive
       psychosis during the course of which he took her
       life. This scenario becomes even more plausible if
       Mr. Menzies‘ assertion that he had been using
       cocaine in the day or days prior to the incident is
       true.
Mr. Menzies interprets Dr. DeCaria‘s report to mean that ―a ‗brief,
reactive psychosis‘ . . . caused him to forget killing Hunsaker.‖
Trial counsel did not attempt to use Dr. DeCaria or his report
during guilt-phase proceedings. Counsel did, however, use
Dr. DeCaria during penalty-phase proceedings.
    ¶97 Second, trial counsel asked Dr. Alan Jeppsen to evaluate
Mr. Menzies. Dr. Jeppsen‘s report describes Mr. Menzies‘s
―history of hostility and other negative aspects,‖ including ―that
he had a history of alcohol and drug abuse, and that he was
explosive and impulsive and could be expected to act out in the
future.‖ Dr. Jeppsen diagnosed Mr. Menzies with the following
conditions: ―(1) major depression with psychotic features
manifested by paranoid thinking and hallucinations, (2) history of
alcohol and drug abuse, [and] (3) past history of attention deficit
disorder.‖ Mr. Menzies‘s claims in his brief that ―Jeppsen also
reported extreme mental illness,‖ but nothing in Dr. Jeppsen‘s
report specifically makes that conclusion. As with Dr. DeCaria,
trial counsel did not call Dr. Jeppsen as a witness during guilt-
phase proceedings.
    ¶98 Mr. Menzies points to several other pieces of evidence to
show that trial counsel did not thoroughly investigate the
possibility of a mental illness defense. First, in a recent affidavit,
Mr. Menzies states that trial counsel never discussed the mental
illness defense with him. Second, Mr. Menzies cites a
neuropsychological evaluation given by Tim Kockler on
September 20, 2010. In his evaluation, Dr. Kockler diagnosed
Mr. Menzies with multiple cognitive disorders and concluded that
Mr. Menzies       ―suffered    from   a    neurological/psychiatric
condition[] at the time of the murder, and most likely impaired his
capacity to form a required mental state; however, I understand
this is a legal decision to be made by the factfinder.‖ Mr. Menzies
also relies on an affidavit obtained from trial co-counsel
Ms. Palacios obtained on October 5, 2010. In her affidavit,
Ms. Palacios states as follows:
                                 39
                         MENZIES v. STATE
                        Opinion of the Court
       Based upon the report by Dr. Michael DeCaria,
       Mr. Menzies may have suffered a psychotic break
       during the course of the murder. LDA could have
       presented either a diminished capacity, or mental
       illness defense at trial. I believe that a jury could
       have determined that because of Mr. Menzies‘s
       mental illness, that he would have been found guilty
       of a lesser included offense of aggravated murder.
Mr. Menzies    argues that     this   affidavit   ―admits   Strickland
prejudice.‖
   ¶99 Mr. Menzies suggests that he would have considered
using a mental illness defense had trial counsel adequately
discussed the option with him. In an affidavit given July 20, 2011,
Mr. Menzies stated that: ―[a]lthough I desired to proceed to trial,
and maintained my innocence throughout the trial and direct
appeal process, I would have been open to discussing all available
defenses with trial counsel, and would have, of course, wanted to
know the probabilities of succeeding with all viable defenses,
based upon the State‘s evidence, and based upon the fact
uncovered by my attorneys‘ investigation.‖
   ¶100 With this additional background in place, we examine the
merits of Mr. Menzies‘s claim in the context of the Strickland two-
part test.
   b. Mr. Menzies has not met his burden of showing that trial
      counsel‘s decision to use a failure-of-proof defense
      prejudiced his case
    ¶101 Mr. Menzies‘s claim fails because he has not met his
burden of establishing prejudice. Part of his prejudice argument
relies on conclusory assertions like ―[i]t is Strickland prejudice to
fail to present a mental illness defense in a capital case if the
defense is available.‖ These assertions are plainly insufficient to
show that if trial counsel had used a mental illness defense there
is a substantial likelihood the result in his case would have been
different. In fact, Mr. Menzies does not even claim that he would
have agreed to use a mental illness defense if adequately advised.
He only claims that he would have considered using a mental
illness defense. Mr. Menzies‘s assertion that he would have
considered using a mental illness defense falls far short of the




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prejudice burden he bears of showing that ―[t]he likelihood of a
different result [was] substantial, not just conceivable.‖98
    ¶102 Further, Mr. Menzies has not refuted the State‘s argument
that trial counsel‘s use of a mental illness defense would have
―corroborated what the circumstantial evidence showed: Menzies
killed Maurine.‖ By using a mental illness defense, Mr. Menzies
would have at least had to tacitly admit that he killed
Mrs. Hunsaker. And all along Mr. Menzies has maintained that he
was not at Storm Mountain and did not kill Mrs. Hunsaker.
    ¶103 Mr. Menzies‘s primary argument regarding prejudice is
that trial counsel ―could have gotten a second degree murder
conviction by using‖ the defense of diminished mental capacity or
by having him plead guilty but mentally ill under section 77-35-
21.5. Neither argument has merit.
    ¶104 First, pleading guilty but mentally ill would have had no
effect on the outcome of this case. This is because the statute
providing for a plea of guilty but mentally ill expressly states that
the plea does not alter the defendant‘s sentence.99 Mr. Menzies has
thus failed to raise a genuine issue of material fact concerning
prejudice, since the court could still have imposed the death
penalty under the plea statute.
    ¶105 Second, Mr. Menzies incorrectly asserts that counsel
could have obtained a lesser conviction by using a diminished
mental capacity defense. We held in State v. Sessions that a
defendant could successfully assert a defense of diminished
mental capacity where the defendant suffered from ―a mental
disease or defect, not amounting to legal insanity, that impairs a
defendant‘s ability to form the specific intent necessary to prove
certain crimes.‖100 We noted in Sessions that diminished mental
capacity differed from the statutory mental illness defense in that
diminished mental capacity was not a complete defense because it
generally did not absolve the defendant ―from all criminal



   98   Harrington, 131 S. Ct. at 792.
   99UTAH CODE § 77-35-21.5(3) (Supp. 1983) (―If the defendant is
found guilty and mentally ill, the court shall impose any sentence
which could be imposed pursuant to law upon a defendant who is
convicted of the same offense.‖).
   100   645 P.2d 643, 644 (Utah 1982).

                                    41
                          MENZIES v. STATE
                        Opinion of the Court
liability.‖101 The diminished capacity defense was typically used
―in homicide cases to reduce first degree murder to second degree
murder or manslaughter.‖102
    ¶106 Mr. Menzies suggests that this defense would have been
available to him even if trial counsel could not show that a mental
illness impaired his ability to form the requisite mens rea. In
contrast, the State argues that ―when Menzies murdered Maurine,
diminished mental capacity would have applied as a defense only
if a mental illness prevented Menzies from understanding that he
was killing a person.‖ We agree with the State on this point.
Under Sessions, to successfully assert diminished mental capacity,
trial counsel would have had to show that Mr. Menzies had a
mental disease or defect that impaired his ability to form the
specific intent necessary to be convicted of first degree
homicide.103 In other words, Mr. Menzies would have had to
assert that his mental illness impaired his ability to ―intentionally
or knowingly‖ kill Mrs. Hunsaker.104 Mr. Menzies is simply
incorrect in asserting that trial counsel could have successfully
used the defense even if they could not show that Mr. Menzies
suffered from a mental illness that negated his ability to form the
necessary mens rea.
    ¶107 Mr. Menzies‘s statement that he would have considered
using a mental illness defense is insufficient to establish a genuine
issue of material fact regarding the prejudice prong of Strickland.
Further, his argument that counsel could have obtained a lesser


   101   Id. at 645.
   102   Id. at 644.
   103  Id.; see also State v. Herrera, 895 P.2d 359, 362 (Utah 1995)
(discussing the 1983 amendments to the statutory mental illness
defense and noting that ―[t]he new law limits the defense to
simply that the defendant did not have the requisite mens rea of
the alleged crime. . . . The new law does away with the traditional
affirmative insanity defense that the killing was perceived to be
justifiable and therefore done with innocent intent.‖); State v.
Wood, 648 P.2d 71, 88 n.18 (Utah 1982) (noting that diminished
mental capacity ―may also be a partial defense in the guilt phase
of a capital case in the sense that, if it negates a necessary specific
intent, the crime would be reduced in degree to second degree
murder‖).
   104   UTAH CODE § 76-5-202(1) (Supp. 1983).

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                         Opinion of the Court
charge of second degree murder by using the defense of
diminished mental capacity fails to demonstrate prejudice because
he overlooks the fact that the defense required proof that a mental
illness impaired a defendant‘s ability to form the necessary mens
rea. Moreover, his argument that counsel could have obtained a
second degree murder conviction by having him plead guilty but
mentally ill is insufficient to show prejudice because the
applicable statute expressly states that such a plea does not alter a
defendant‘s sentence. For these reasons we affirm the PCC‘s
ruling that Mr. Menzies failed to raise a genuine issue of material
fact concerning Strickland prejudice.
   c. Trial counsel did not render deficient performance because
      their investigation and strategy was reasonable given
      Mr. Menzies‘s claim of innocence, the weaknesses in the
      case against him, and the lack of evidence suggesting he
      was mentally ill
    ¶108 Even if we were to conclude that Mr. Menzies satisfied
his burden of showing prejudice, we would still affirm the PCC‘s
ruling since trial counsel conducted an adequate mental illness
investigation and reasonably chose to pursue a failure-of-proof
strategy. We have stated that an important prevailing professional
norm is counsel‘s ―duty to adequately investigate the underlying
facts of the case.‖105 ―This is because investigation sets the
foundation for counsel‘s strategic decisions about how to build
the best defense.‖106 Trial counsel‘s performance was not deficient
for four principal reasons. First, Mr. Menzies insisted throughout
the proceedings that he was innocent. Second, there were
weaknesses in the State‘s case against Mr. Menzies that trial
counsel reasonably thought could be exploited. Third, trial
counsel could have reasonably concluded based on the available
evidence that Mr. Menzies was not mentally ill. And fourth, trial
counsel thoroughly investigated Mr. Menzies‘s case.
   ¶109 To begin, Mr. Menzies‘s insistence that he did not commit
the murder influenced trial counsel‘s decision to pursue a failure-
of-proof strategy. Mr. Menzies argues that trial counsel should




   105 State v. Lenkart, 2011 UT 27, ¶ 27, 262 P.3d 1 (internal
quotation marks omitted).
   106   Id. (internal quotation marks omitted).

                                   43
                            MENZIES v. STATE
                       Opinion of the Court
have vetoed107 his claims of innocence and pursued an alternative
defense theory, despite our case law to the contrary. In State v.
Wood, we reasoned that ―an attorney acts as an assistant for his
client, and not as a master. An attorney who refuses to present
such a basic claim as that of innocence acts outside the duties of
an attorney, even if the claim of innocence detracts from other
defenses presented by counsel.‖108 Our reasoning in Wood
suggests it was not unreasonable for trial counsel to give
Mr. Menzies‘s claim of innocence significant weight in choosing a
defense strategy. Additionally, Strickland expressly recognized
that ―[t]he reasonableness of counsel‘s actions may be determined
or substantially influenced by the defendant‘s own statements or
actions.‖109
    ¶110 Despite his unwavering insistence throughout the trial
that he was innocent, he now argues that counsel should have
vetoed his claims of innocence because the evidence, taken as a
whole, overwhelmingly suggested that he committed the murder.
He argues that, given this evidence, it was per se unreasonable for
trial counsel to pursue a failure-of-proof defense. For this
proposition, Mr. Menzies relies on a Ninth Circuit case, Johnson v.
Baldwin,110 and a Second Circuit case, DeLuca v. Lord.111 But these
cases are unpersuasive here. In Johnson, the defendant‘s
involvement in the crime was so factually undeniable that ―[t]he
jury obviously concluded that he was not telling the truth when
he denied that he was present at the scene.‖112 And in DeLuca


   107  The State argues that Mr. Menzies has waived any
argument that counsel should have vetoed his claims of
innocence. But the veto theory advocated by Mr. Menzies is not
really a separate claim. Rather, it is instead part-and-parcel of his
overall claim that trial counsel should have used a mental illness
defense, which is properly before us.
   108 648 P.2d 71, 91 (Utah 1982); see State v. Maestas, 2012 UT 46,
¶ 242, 299 P.3d 892 (―[T]he Sixth Amendment does not mandate
that defense counsel present mitigating evidence over the wishes
of a represented defendant.‖).
   109   466 U.S. at 691.
   110   114 F.3d 835 (9th Cir. 1997).
   111   77 F.3d 578 (2d Cir. 1996).
     Johnson, 114 F.3d at 838–39. We note that in Johnson, the
   112

Ninth Circuit did not even need to address the deficient
                                                   (continued)
                             44
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                         Opinion of the Court
counsel failed to pursue an extreme emotional disturbance
defense even though ―upon a realistic appraisal of the strength of
the People‘s case, and of the other defenses contemplated by
[counsel], [an extreme emotional disturbance defense] offered the
only realistic escape.‖113 Neither situation applies here.
    ¶111 In contrast to Johnson, trial counsel here could have
reasonably believed that Mr. Menzies‘s claim of innocence could
be supported. For instance, trial counsel highlighted the timeline
of events on the date Mrs. Hunsaker disappeared to show that
Mr. Menzies could not have been the person to kidnap her.
Specifically, counsel noted that a witness reportedly saw
Mrs. Hunsaker at Denny‘s between 11:00 and 11:30 p.m. with
someone other than Mr. Menzies, and that Mr. Menzies arrived at
his girlfriend‘s mother‘s home, located ―some distance‖ from
Denny‘s, between 11:30 p.m. and midnight. Mr. Menzies spoke on
the telephone with three different individuals between 12:10 a.m.
and 1:00 a.m., none of whom noted that anything unusual took
place on the calls. Additionally, trial counsel noted that
Mrs. Hunsaker‘s neck wound would have forced blood down her
body, yet the items found in Mr. Menzies‘s apartment, such as the
parka and handcuffs, had no trace of any blood. Trial counsel
pointed out that other individuals used Mr. Denter‘s car and left
belongings in it, suggesting the handcuffs box under the driver‘s
seat may not have been Mr. Menzies‘s. Further, even if the
handcuffs were Mr. Menzies‘s, the medical examiner‘s report
stated that the marks on Mrs. Hunsaker‘s hands could have been
caused by wire or cord, but made no mention of handcuffs.
    ¶112 Other circumstantial evidence bolstered Mr. Menzies‘s
claim that he was not with Mrs. Hunsaker, such as the fact that
the police found hair on Mrs. Hunsaker‘s clothes that was not his,
his neighbors reported no unusual events at his apartment, and
Mr. Larrabee equivocated regarding his identification testimony.
In short, the evidence was not, at the time of trial, as clearly
unfavorable as Mr. Menzies now suggests. To be sure, a jury
could reasonably give little weight to this evidence. But the
opposite conclusion is also reasonable. It is not the case here, as it
was in Johnson, that a claim of innocence was obviously
untruthful.

performance part of Strickland because the State did not challenge
the lower court‘s finding of deficient performance. Id. at 838.
   113   DeLuca, 77 F.3d at 585.

                                   45
                         MENZIES v. STATE
                      Opinion of the Court
   ¶113 Deluca is also inapposite to Mr. Menzies‘s case. Even
assuming that the mental illness defense would have been useful
in Mr. Menzies‘s defense, it was not ―the only realistic escape.‖ As
noted above, there were weaknesses in the case against
Mr. Menzies that trial counsel reasonably believed could be
exploited using the failure-of-proof defense. The PCC correctly
observed that the failure-of-proof theory ―was far, far superior
and extremely reasonable as to conduct by trial counsel.‖
    ¶114 In addition to Mr. Menzies‘s insistence that he was
innocent and the holes in the State‘s case, trial counsel also faced
evidence that they might have reasonably believed would not be
sufficient to establish that Mr. Menzies was mentally ill. The
psychologists‘ reports and Ms. Palacios‘s affidavit do not help
establish that there is a genuine issue of material fact regarding
trial counsel‘s performance. Ms. Palacios stated in her affidavit
that trial counsel ―could have presented either diminished
capacity, or mental illness defense at trial.‖ But just because
counsel could have done so does not mean that using another
defense was unreasonable. Further, Dr. Kockler notes in his report
that Mr. Menzies suffered from conditions that could have
hindered his ability to form the necessary mental state, but this is
a conclusory assertion. Nowhere in his report does he specify how
those conditions would have affected Mr. Menzies‘s ability to
understand that he was killing a person.
   ¶115 Dr. DeCaria‘s report also does not conclusively show that
a mental illness impaired Mr. Menzies‘s ability to form the
necessary mens rea. Mr. Menzies suggests that the report
indicates that he ―may have experienced a psychotic break, and
may not have remembered killing Hunsaker.‖ Trial counsel
reasonably choose not to pursue a mental illness defense based on
that statement, however, because under either the statutory
mental illness defense or the diminished mental capacity defense,
Mr. Menzies simply forgetting that he killed Mrs. Hunsaker
would not have sufficed as a defense. Both defenses require that
the defendant‘s mental illness negate or impair the requisite mens
rea of the crime.114 The first degree murder statute in effect at the



   114 See UTAH CODE § 76-2-305(1) (Supp. 1983) (―It is a defense to
a prosecution under any statute or ordinance that the defendant,
as a result of mental illness, lacked the mental state required as an
element of the offense charged. Mental illness shall not otherwise
constitute a defense.‖); Wood, 648 P.2d at 88 n.18 (noting that
                                                          (continued)
                                   46
                          Cite as: 2014 UT 40
                         Opinion of the Court
time of Mr. Menzies‘s crime required that ―the actor intentionally
or knowingly‖ cause the death of another.115 Mr. Menzies reads
Dr. DeCaria‘s report to mean that Mr. Menzies‘s psychosis
―caused him to forget killing Hunsaker.‖ That assertion, even if
true, would be insufficient to show that his mental illness
impaired his ability to either intentionally or knowingly kill
Mrs. Hunsaker.
    ¶116 Dr. Jeppsen‘s report also suggests that Mr. Menzies did
not suffer from a mental illness that would rise to the level
necessary to assert such a defense. His report cites a variety of
Mr. Menzies‘s illnesses including depression, attention deficit
disorder, and substance abuse problems, but nowhere does it
assert that Mr. Menzies might have had a mental illness that
would have negated the mens rea element of first degree murder.
Dr. Jeppsen did diagnose Mr. Menzies with ―major depression
with psychotic features manifested by paranoid thinking and
hallucinations.‖ But Dr. Jeppsen never asserted that Mr. Menzies
suffered from those conditions at the time of the murder.
Dr. Jeppsen stated only that ―[o]n the night of the murder
Mr. Menzies was emotionally upset because of conflict with his
wife and with a friend.‖116 Dr. Jeppsen‘s report does not
sufficiently link Mr. Menzies‘s ―paranoid thinking and
hallucinations‖ to his mental state at the time of the murder. The
report merely states that Mr. Menzies was ―emotionally upset,‖
which is insufficient to show that a mental illness impaired his
ability to form the necessary mens rea.
   ¶117 In sum, because neither Dr. Jeppsen nor Dr. DeCaria
concluded that Mr. Menzies suffered from a mental illness that
would have impaired his ability to form the requisite mens rea, it
was entirely reasonable for trial counsel to choose not to rely on a
mental illness defense. The reasonableness of trial counsel‘s
decision to opt for a failure-of-proof defense was further


diminished mental capacity ―may also be a partial defense . . . if it
negates a necessary specific intent‖).
   115   UTAH CODE § 76-5-202(1) (1986).
   116 The reference in Dr. Jeppsen‘s report to Mr. Menzies‘s
―wife‖ is not a reference to Mr. Menzies‘s girlfriend at the time of
the crime, Ms. Arnold. Rather, it is a reference to a woman he
married when he was seventeen years old. The marriage was
annulled before his incarceration for killing Ms. Hunsaker.

                                  47
                             MENZIES v. STATE
                     Opinion of the Court
supported by Mr. Menzies‘s insistence that he knew where he was
at the time Mrs. Hunsaker died and that he did not commit the
murder.
     ¶118 Finally, Mr. Menzies‘s argument fails because trial
counsel thoroughly investigated his case and presented a
reasonable theory based on their investigation. Mr. Menzies‘s
brief cites numerous ABA standards that require trial counsel to
keep the defendant informed regarding preparation of the
defense,117 conduct a prompt and thorough investigation of the
case,118 and discuss strategic and tactical decisions with the
client.119 Our decisions have also noted the importance of
counsel‘s duty of investigation. For instance, in State v. Lenkart, we
held that counsel‘s performance was deficient where counsel
failed to investigate physical evidence that might have
corroborated the defendant‘s testimony that an alleged rape was
actually consensual.120 Counsel‘s failure came even after his client
suggested that counsel look at the evidence.121 We noted that
―[t]rial counsel had no reason to disbelieve [his client] and had
little to lose in performing the investigation.‖122
   ¶119 The situation here is unlike that in Lenkart. Here, it
appears that trial counsel considered the possibility that

   117ABA STANDARDS FOR THE DEFENSE FUNCTION 4-3.8 (1979)
(―The lawyer has a duty to keep the client informed of the
developments in the case and the progress of preparing the
defense.‖); id. at 4-5.1(a) (―After informing himself or herself fully
on the facts and the law, the lawyer should advise the accused
with complete candor concerning all aspects of the case, including
a candid estimate of the probable outcome.‖).
   118Id. at 4-4.1 (―It is the duty of the lawyer to conduct a prompt
investigation of the circumstances of the case and to explore all
avenues leading to facts relevant to the merits of the case and the
penalty in the event of conviction.‖).
   119 Id. at 4-5.2 (noting that certain decisions exclusively lie with
the accused, including (1) what plea to enter, (2) ―whether to
waive jury trial,‖ and (3) whether to testify, and that ―all other
strategic and tactical decisions are the exclusive province of the
lawyer after consultation with the client.‖).
   120   2011 UT 27, ¶ 29.
   121   Id.
   122   Id. ¶ 35.

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                      Opinion of the Court
Mr. Menzies might have some sort of mental illness because
counsel ordered psychiatric evaluations by both Dr. DeCaria and
Dr. Jeppsen. The results of those evaluations suggested that
Mr. Menzies did not suffer from a mental illness that would
negate or impair mens rea. Further, unlike Lenkart, trial counsel
never received any indication from Mr. Menzies that he was
mentally ill. Rather, he asserted he knew exactly what he was
doing the day Mrs. Hunsaker died and that he did not commit the
crime. And finally, this case is unlike Lenkart in that counsel‘s
reliance on the sliver of evidence suggesting Mr. Menzies might
have suffered from a mental illness would have contradicted his
repeated testimony that he did not commit the crime. By contrast,
in Lenkart, counsel‘s use of the physical evidence the defendant
asserted counsel should have investigated would have
corroborated, rather than contradicted, the defendant‘s testimony.
Neither the ABA standards cited by Mr. Menzies nor our case law
require counsel to pursue a defense after trial counsel has
reasonably investigated the defense and found evidence
suggesting that it would be unsuccessful and possibly even
harmful to the defendant‘s case.
    ¶120 Based on the record and Mr. Menzies‘s proffer of
evidence, it appears that trial counsel‘s decision to pursue a
failure-of-proof defense was reasonable and did not constitute
deficient performance. There were weaknesses in the State‘s case
against Mr. Menzies that trial counsel reasonably tried to exploit.
These weaknesses buttressed Mr. Menzies‘s insistence that he was
innocent. Further, trial counsel investigated the possibility that
Mr. Menzies was mentally ill and there was little evidence
suggesting he suffered from a mental illness that impaired his
ability to know that he was killing a person. For these reasons,
Mr. Menzies fails to raise a genuine issue of material fact
regarding the deficient performance prong of Strickland.
2. Trial Counsel Reasonably Challenged Testimony from
Mr. Menzies‘s Fellow Inmate Mr. Britton, and Mr. Menzies Has
not Shown Prejudice
   ¶121 Mr. Menzies next argues that trial counsel provided
ineffective assistance because they did not discover and use
evidence of mental illness to impeach testimony from one of
Mr. Menzies‘s fellow inmates, Walter Britton. Because
Mr. Menzies fails to raise any genuine issue of material fact
concerning counsel‘s performance in this respect, or as to whether
counsel‘s performance prejudiced the outcome, we affirm the
PCC‘s grant of summary judgment. Again, before addressing
                                49
                         MENZIES v. STATE
                      Opinion of the Court
Mr. Menzies‘s claim, we recite additional facts to provide further
context.
   a. Additional facts relevant to trial counsel‘s treatment of
      Mr. Britton‘s testimony
     ¶122 During Mr. Menzies‘s preliminary hearing, Mr. Britton
testified that while he and Mr. Menzies were in jail together,
Mr. Menzies confessed to killing Mrs. Hunsaker and said that
slitting her throat was one of the biggest thrills of his life.
Mr. Britton refused to testify at trial, but the court agreed to admit
his preliminary hearing testimony to the jury.
    ¶123 At that preliminary hearing, trial counsel cross-examined
Mr. Britton. Among other things, he admitted that he heard about
Mrs. Hunsaker‘s abduction on the news approximately a week
before he told the police about Mr. Menzies‘s statements. He also
testified that he watched the news more frequently after his first
conversation with Mr. Menzies. Finally, Mr. Britton admitted that
he did not report Mr. Menzies‘s statements to the police until
about a month after Mr. Menzies made them. Ms. Wells pointed
out to the jury during closing argument that Mr. Britton‘s
testimony could have been derived from either the news or jail
rumors.
    ¶124 Trial counsel also attempted to discredit Mr. Britton‘s
testimony at trial. There, counsel called a jail officer who testified
that the details of Mrs. Hunsaker‘s death were discussed by jail
employees and inmates. The officer further testified that she heard
several rumors in the jail regarding the crime and repeated those
rumors.
    ¶125 Trial counsel also called Mr. Britton‘s attorney,
Bruce Savage, at trial. Mr. Savage represented Mr. Britton in a
federal case in which Mr. Britton was charged with bank robbery.
Mr. Savage testified that, although Mr. Britton‘s participation in
Mr. Menzies‘s case was supposed to earn Mr. Britton a sentence
reduction, Mr. Britton ended up receiving no sentence reduction.
In closing argument, Ms. Wells noted the possibility of
Mr. Britton‘s bias and highlighted the fact that he refused to
testify at trial after learning that he would receive no sentence
reduction.
   ¶126 Mr. Menzies bases his claim that Mr. Britton suffered
from a mental illness on a mental health evaluation of Mr. Britton
conducted in Springfield, Missouri approximately five months
before Mr. Menzies‘s preliminary hearing. In the evaluation
report, the evaluator found that Mr. Britton ―exaggerated and/or

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                           Cite as: 2014 UT 40
                          Opinion of the Court
lied in order to present himself as a more interesting, valuable
person to others‖ and that he had ―a marked disregard for the
truth as indicated by his report lies.‖ Mr. Menzies‘s current post-
conviction counsel obtained the Springfield report in June 2011
under the Freedom of Information Act (FOIA).
    ¶127 Also, Mr. Menzies‘s post-conviction counsel obtained an
affidavit from Mr. Britton where he recants much of his
preliminary hearing testimony. In that affidavit Mr. Britton states
that he lied about Mr. Menzies saying that cutting
Mrs. Hunsaker‘s throat was the biggest thrill of his life.
Mr. Britton also stated that he may have lied about Mr. Menzies‘s
confession to killing Mrs. Hunsaker. Additionally, Mr. Britton
suggested that his statements regarding Mr. Menzies could have
been inaccurate because he was taking medication at the time.
   b. Mr. Menzies fails to show that trial counsel‘s decision to
      not impeach Mr. Britton‘s testimony with evidence of
      mental illness prejudiced his case
    ¶128 Mr. Menzies‘s ineffective assistance claim fails because he
does not demonstrate that counsel‘s failure to obtain this report
prejudiced the outcome of his trial. All he does in this regard is
make conclusory statements. In one instance, Mr. Menzies states
that ―[f]ailure to review an available court file can be Strickland
prejudice.‖ He also states ―failure to impeach a witness with
mental illness evidence is Strickland prejudice when evidence
reflects on the witness‘s credibility.‖
    ¶129 To support these assertions, Mr. Menzies cites two cases,
both of which do not support his prejudice claim. The first is
Rompilla v. Beard.123 Here, Mr. Menzies cites, among other places,
the Court‘s syllabus, which the Supreme Court has held provides
no precedential value.124 At any rate, Rompilla provides no help to
Mr. Menzies‘s argument because it involved a case where counsel
failed to ―look at a file he [knew] the prosecution [would] cull for
aggravating evidence.‖125 The Court noted that the file that
counsel failed to look at was easily available and that no



   123   545 U.S. 374 (2005).
   124See United States v. Detroit Timber & Lumber Co., 200 U.S. 321,
337 (1906).
   125   Rompilla, 545 U.S. at 389.

                                      51
                            MENZIES v. STATE
                         Opinion of the Court
reasonable lawyer would have ignored it.126 That is not the case
here. The file Mr. Menzies alleges counsel should have used here
was apparently held by a federal court that did not respond to the
trial investigator‘s inquiries.
    ¶130 The second case is Virts v. State,127 a Texas Court of
Criminal Appeals case. This case has nothing to do with
ineffective assistance and simply stands for the proposition that
―[c]ross-examination of a testifying State‘s witness to show that
the witness has suffered a recent mental illness or disturbance is
proper, provided that such mental illness or disturbance is such
that it might tend to reflect upon the witness‘s credibility.‖ 128 This
proposition adds nothing to Mr. Menzies‘s prejudice claim.
Mr. Menzies‘s conclusory statements are insufficient to raise a
genuine issue of material fact regarding Strickland prejudice.
   c. Mr. Menzies‘s claim of deficient performance fails because
      he has not shown that trial counsel had access or could
      have gained access to the Springfield report
   ¶131 Even if Mr. Menzies could satisfy his burden of showing
prejudice, his claim would fail because he has not shown that trial
counsel had access to the evidence, or could have obtained access
through reasonable diligence. Mr. Menzies‘s claim instead relies
on a variety of unsupported inferences to conclude that trial
counsel knew about Mr. Britton‘s mental illness.
    ¶132 Counsel‘s duty to ―adequately investigate the underlying
facts of the case‖ is an important one because ―investigation sets
the foundation for counsel‘s strategic decisions about how to
build the best defense.‖129 But counsel‘s duty is to conduct an
―adequate investigation.‖130 Mr. Menzies appears to argue that
this duty further obligates counsel to present evidence that was
not obtained even after an adequate investigation.
   ¶133 Here, Mr. Menzies has failed to raise a genuine issue of
material fact regarding trial counsel‘s investigation into whether
Mr. Britton had a mental illness. Trial counsel‘s investigator

   126   Id.
   127   739 S.W.2d 25 (Tex. Ct. Crim. App. 1987) (en banc).
   128   Id. at 30.
   129 State v. Hales, 2007 UT 14, ¶ 69, 152 P.3d 321 (internal
quotation marks omitted).
   130   Lenkart, 2011 UT 27, ¶ 28.

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testified that he served the federal court hearing Mr. Britton‘s case
with a subpoena seeking Mr. Britton‘s psychological records, but
received nothing back. Mr. Britton‘s attorney told trial counsel
that the records were not public records and that he could not
disclose confidential client information. Ms. Wells testified that
the federal court hearing Mr. Britton‘s case had the only copy of
the Springfield report, that she was unsuccessful in procuring the
report, and that Mr. Britton‘s attorney did not have a copy.
    ¶134 Not only did trial counsel investigate Mr. Britton‘s
background, but they also used their findings to impeach his
testimony. In Ms. Wells‘s closing argument, she reminded the jury
that Mr. Britton refused to testify after learning he would not get
any benefit in his own case from doing so. Mr. Menzies
apparently misunderstands trial counsel‘s purpose for telling this
to the jury and states that the jury couldn‘t infer bias because
―Britton did not get a deal.‖ This is precisely the point trial
counsel made to the jury. Counsel highlighted the weakness of
Mr. Britton‘s testimony by showing that he was eager to testify
against Mr. Menzies when he thought he might benefit by doing
so, but he stopped cooperating once he realized that benefit
would not materialize.
    ¶135 Mr. Menzies counters the State‘s assertion that trial
counsel‘s investigation was reasonable by suggesting that the
police reports available to trial counsel firmly established that
Mr. Britton was mentally ill. But the portion of the report
Mr. Menzies cites for this proposition states only that Mr. Britton
was ―sent out to Springfield, Missouri (inaudible) my attorney
tried to get an irresistible impulse plea put on there.‖ This report
merely refers to the report that trial counsel did not have access
to—it does not establish some other basis for finding that trial
counsel should have searched elsewhere for evidence of
Mr. Britton‘s alleged mental illness.
    ¶136 Additionally, Mr. Menzies makes the sweeping assertion
that ―Savage spoke to [trial counsel] about Britton prior to the
preliminary hearing. Thus, it is reasonable to infer that [trial
counsel] was aware of Britton‘s mental illness because of Savage‘s
contact.‖ Mr. Menzies‘s citation to the record here merely
indicates that Mr. Savage talked to counsel before Mr. Britton
testified against Mr. Menzies. There is nothing in the portion of
the record cited by Mr. Menzies to support the inference that
―[trial counsel] was aware of Britton‘s mental illness because of
Savage‘s contact.‖


                                 53
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                       Opinion of the Court
    ¶137 Finally, Mr. Menzies argues that it is reasonable to infer
that trial counsel could have used a FOIA request to obtain the
Springfield report because Mr. Menzies‘s post-conviction counsel
was able to obtain a copy of the report in 2011 pursuant to FOIA
from the Federal Bureau of Prisons. On this point Mr. Menzies
does not explain why this is a reasonable inference or what effect
amendments to FOIA during the last twenty years would have on
the analysis. Further, Mr. Menzies has not provided any evidence
showing that the Federal Bureau of Prisons actually had the
Springfield report during the time of trial. Trial counsel and Mr.
Britton‘s attorney both suggested that the federal court hearing
Mr. Britton‘s case had the only copy of the report and therefore
the Federal Bureau of Prisons may not have had the report at that
time. Trial counsel‘s investigator served the federal court a
subpoena seeking mental health records but received no response.
Mr. Menzies has failed to support his suggested inference that
trial counsel could have used a FOIA request to obtain the
Springfield report.
    ¶138 Mr. Menzies has not proffered sufficient evidence to
overcome our ―strong presumption that counsel‘s conduct falls
within the wide range of reasonable professional assistance.‖131
Accordingly, we hold that Mr. Menzies has not raised a genuine
issue of material fact regarding the deficient performance prong
of Strickland.
3. Trial Counsel Did not Render Ineffective Assistance Because
They Reasonably Challenged Mr. Larrabee‘s and Ms. Brown‘s
Testimony
   ¶139 Mr. Menzies next argues that trial counsel rendered
ineffective assistance by improperly challenging Mr. Larrabee‘s
and Ms. Brown‘s eye-witness testimony. Mr. Menzies raises two
specific challenges in this regard. First, he argues that trial counsel
should have elicited the specific reason that Mr. Larrabee and
Ms. Brown were distracted at the time they reportedly saw
Mr. Menzies and Mrs. Hunsaker. We reject this claim because
Mr. Menzies fails to demonstrate deficient performance or
prejudice. Second, he argues that trial counsel should have sought
suppression of the testimony because it was inherently unreliable.
On this point, Mr. Menzies has not shown that the identification
procedures used were unnecessarily suggestive. Because he has
thus failed to raise any genuine issue of material fact on either


   131   Hales, 2007 UT 14, ¶ 70 (quoting Strickland, 466 U.S. at 689).

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point concerning counsel‘s performance, we affirm the PCC‘s
grant of summary judgment.
   a. Trial counsel did not render ineffective assistance by failing
      to elicit the specific reason Mr. Larrabee and Ms. Brown
      were distracted
    ¶140 During the most recent discovery period in this case,
Mr. Menzies obtained four affidavits that all aver the same thing—
Mr. Larrabee and Ms. Brown went to Storm Mountain to have an
intimate sexual encounter. Mr. Menzies argues that trial counsel
performed unreasonably in failing to interview Mr. Larrabee and
Ms. Brown, learn about the nature of their distraction, and then
use that knowledge at trial to impeach their testimony.
    ¶141 We reject this claim because trial counsel cross-examined
Mr. Larrabee and Ms. Brown at trial and highlighted for the jury
the weaknesses of their testimony. Mr. Larrabee admitted to the
jury that his attention was turned towards Ms. Brown during the
time he saw the man and woman walking at Storm Mountain.
Mr. Menzies concedes that ―Larrabee admitted his inconsistent
statements at trial.‖ Mr. Menzies does not explain how the jury
knowing that Mr. Larrabee‘s attention was directed at Ms. Brown
for the purpose of having sexual relations would have changed the
outcome in the case. Further, eliciting the specific reason
Ms. Brown and Mr. Larrabee were distracted might have hurt
Mr. Menzies‘s case more than helped it. The jury might have
concluded that Mr. Larrabee was so concerned about being caught
with Ms. Brown that he was more focused on the man at Storm
Mountain than he might otherwise have been.
    ¶142 Further, in his own affidavit, Mr. Larrabee stated only
that he and Ms. Brown were ―kissing.‖ If Mr. Larrabee is
unwilling to admit over twenty-five years after the event that he
went to Storm Mountain to engage in sexual actions beyond
kissing with Ms. Brown, on what basis are we to conclude now
that he would have admitted this information to trial counsel or a
jury? Mr. Menzies claims that an affidavit from his current
counsel ―revealed that . . . Larrabee‘s allusion to kissing Brown
was expressed as a euphemism to induce Larrabee to sign it.‖ But
the point remains—if Mr. Larrabee is unwilling to admit now that
he and Ms. Brown intended to have sex, we cannot presume that
he would have admitted the same point to trial counsel or the
jury.
   ¶143 In short, trial counsel‘s failure to elicit the specific reason
that Mr. Larrabee and Ms. Brown were distracted was neither

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                       Opinion of the Court
unreasonable nor prejudicial, and Mr. Menzies has therefore
failed to raise a genuine issue of material fact. Accordingly, we
affirm the PCC‘s grant of summary judgment.
   b. Trial counsel‘s decision to impeach Mr. Larrabee‘s and
      Ms. Brown‘s eyewitness testimony rather than seek
      suppression was reasonable
   ¶144 Mr. Menzies also claims that the circumstances of
Mr. Larrabee‘s and Ms. Brown‘s identifications were so suggestive
that trial counsel rendered ineffective assistance by not seeking to
suppress them. Because Mr. Menzies provides no basis for the
conclusion that trial counsel could have had the photo array
suppressed, and has thus failed to raise a genuine issue of
material fact, we affirm the PCC‘s grant of summary judgment.
    ¶145 As a general rule regarding the validity of identification
procedures, ―due process concerns arise only when law
enforcement officers use an identification procedure that is both
suggestive and unnecessary.‖132 Courts must ―assess, on a case-
by-case basis, whether improper police conduct created a
‗substantial likelihood of misidentification.‘‖133 In determining
whether a photo array is impermissibly suggestive, we have
stated that ―the main question is whether the photo array
emphasized the defendant‘s photo over the others.‖134 Factors that
we consider in answering that question include: (1) ―whether the
words and body language of the police officers who presented the
array conveyed an attitude of disinterest,‖ (2) ―whether the
officers manipulated the photos to indicate their belief that one of
the photos portrayed the perpetrator,‖ and (3) ―whether the
photos themselves were selected so that the defendant‘s photo
stood out from the rest.‖135
   ¶146 As an initial matter, we note that neither Mr. Larrabee
nor Ms. Brown ever made a firm identification of Mr. Menzies.
Rather, Mr. Larrabee identified Mr. Menzies‘s photo as looking
the most like the man he saw at Storm Mountain. And later
Mr. Larrabee could not identify the man he saw during a lineup.
Mr. Larrabee did ask the prosecutor after the lineup whether
number six was the suspect and was told that number six was in

   132   Perry v. New Hampshire, 132 S. Ct. 716, 724 (2012).
   133   Id. (quoting Neil v. Biggers, 409 U.S. 188, 201 (1972)).
   134   State v. Lopez, 886 P.2d 1105, 1111 (Utah 1994).
   135   Id. at 1111–12.

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fact Mr. Menzies. But the trial court struck this part of
Mr. Larrabee‘s testimony. Ms. Brown also never made a firm
positive identification of Mr. Menzies.
    ¶147 Even if we assume that Mr. Larrabee‘s and Ms. Brown‘s
testimony is identification testimony, Mr. Menzies offers no
evidence that is relevant to any of the three factors we use to
determine whether identification procedures are suggestive.
Instead, he offers conclusory assertions. For instance, he states
that Mr. Larrabee‘s identification was unreliable because of
―suggestive comments made by the police to Larrabee.‖ But
Mr. Menzies does not provide specifics regarding what comments
the police made. He merely refers to ―the suggestiveness of the
mug shots.‖
    ¶148 Mr. Menzies‘s other assertions do not support the
conclusion that the identification procedures were unduly
suggestive, but simply undermine the weight of the identification
testimony. For example, Mr. Menzies states that ―[Detective] Judd
admitted that if Larrabee only saw a profile the composite was
inaccurate.‖ He further states that ―Larrabee and Brown were
grossly distracted, and had no meaningful opportunity to observe
or pay attention to the hiker.‖ Even if true, these facts affect only
the weight of Mr. Larrabee‘s identification testimony. They are
irrelevant to the question of whether the identification procedures
employed by the police were unnecessary and suggestive.
    ¶149 Finally, other indicia of suggestiveness cited by
Mr. Menzies simply have no basis in the record. For instance,
Mr. Menzies alleges that ―[Officer] Couch used the composite to
select [Mr. Menzies‘s] mug shot to presumably frame
[Mr. Menzies].‖ Mr. Menzies provides no record citation to
support this allegation. Further, Mr. Menzies states that during
the photo array procedure the ―police told Larrabee that he had
picked the right man, and that they had [Mr. Menzies] in custody.
Then after Mr. Larrabee picked the wrong man because he had a
pot belly, the police told him that [Mr. Menzies] had lost 20
pounds.‖ Mr. Menzies provides no citation to the record on this
point, either. Our review of the record indicates, as the State
suggests, that Mr. Larrabee selected Mr. Menzies‘s photo as
looking most like the man he saw at Storm Mountain before the
police told him that Mr. Menzies was in custody and mentioned
anything about a weight change. Mr. Larrabee stated that at the
time he picked Mr. Menzies‘s picture out of the photo array he
did not know that the police had Mr. Menzies in custody. In fact,
Mr. Larrabee learned that Mr. Menzies was in custody
                                 57
                           MENZIES v. STATE
                       Opinion of the Court
approximately three months later. At the lineup, Mr. Larrabee
identified someone other than Mr. Menzies. It was not until after
the lineup that Mr. Larrabee learned about Mr. Menzies‘s weight
change. This is not a case where the police told Mr. Larrabee that
he picked the right man or ever implied as much.136
    ¶150 Only one fact cited by Mr. Menzies is even potentially
relevant to determining suggestiveness. Mr. Menzies claims that
―[Detective] Judd did not instruct Larrabee that the hiker may or
may not be in the photo array.‖ Mr. Menzies cites a federal district
court case where the court recognized that ―[s]uch an admonition
is extremely important to avoid suggestiveness in the presentation
of a photographic lineup to an adult witness . . . [and] is even
more critical to avoid suggestiveness in the presentation . . . to a
six-year-old child.‖137 But the facts of that case differ in several
important ways from the situation here. First, the witness in that
case was a six-year-old child, whereas Mr. Larrabee was a high-
school student. Second, there the police made suggestive
statements such as telling the witness that she did an ―awesome‖
and ―fantastic‖ job after identifying the defendant.138 In contrast,
here the police made no such statements. The lone fact that
Detective Judd did not tell Mr. Larrabee that the hiker may or
may not be in the photo array is not enough for us to conclude
that trial counsel acted unreasonably in not seeking to suppress
the identification as unnecessarily suggestive.
    ¶151 Mr. Menzies has not raised a genuine issue of material
fact regarding trial counsel‘s decision to impeach Mr. Larrabee‘s
and Ms. Brown‘s testimony. Trial counsel acted reasonably in
pointing out the flaws in the testimony rather than seeking to


   136 Mr. Menzies cites a Ninth Circuit case, United States v.
Simoy, as being similar to the case here. 998 F.2d 751 (9th Cir.
1993). There the government conceded that an identification
procedure was suggestive where an officer looked at a sketch
drawn using the help of a witness and then ―held up a
photograph of [the defendant] . . . [and] commented that the
photo closely matched the sketch and asked [the witness] if the
photograph resembled the person he had witnessed the night of
the robbery.‖ Id. at 752.
   137Oliva v. Hedgpeth, 600 F. Supp.2d 1067, 1080 (C.D. Cal. 2009)
(footnote omitted).
   138   Id. at 1081 (internal quotation marks omitted).

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                       Opinion of the Court
suppress it on the ground that the police used unnecessarily
suggestive tactics.
    ¶152 Additionally, Mr. Menzies‘s ineffective assistance claim
would fail in any case because he has not made a sufficient
showing of prejudice. His only argument regarding prejudice on
this claim is that ―there is a good chance that had LDA moved to
strike the identifications, the motion would have been granted,
and the result of the trial would have been different.‖ This merely
restates the basic prejudice standard and provides no analysis
regarding why it would be the case. For these reasons we affirm
the PCC and reject Mr. Menzies‘s claim that trial counsel was
ineffective in dealing with Ms. Brown‘s and Mr. Larrabee‘s
testimony.
4. Mr. Menzies Has not Shown that the Liability Waiver Denied
Him His Right to Conflict-Free Counsel
    ¶153 Mr. Menzies argues that his counsel rendered ineffective
assistance because they denied him his right to conflict-free
counsel when they had him sign a liability waiver. He also
suggests that this initial conflict ―tainted‖ the appellate and post-
conviction proceedings. We reject Mr. Menzies‘s claims because
he has not shown that the liability waiver created an actual
conflict of interest. Because Mr. Menzies has not made a threshold
showing that a conflict even existed, we do not reach the issue of
whether the alleged conflict caused counsel to render deficient
performance.
   ¶154 The parties agree that Mr. Menzies signed the liability
waiver before trial. The waiver provides:
       I, RALPH LEROY MENZIES, defendant in Criminal
       Case No. CR 86-887 assigned to the Third District
       Court of the Third Judicial District, Judge Raymond
       S. Uno presiding, hereby acknowledge that I have
       refused to provide my counsel, Brooke C. Wells and
       Frances M. Palacios, with the names of witnesses
       who may have evidence pertinent to the defense of
       the above-referenced case.
       I hereby waive any and all claims which I might
       have against Brooke C. Wells and Frances M.
       Palacios or the Sale Lake Legal Defender Association
       as a result of the failure of such witnesses to be
       interviewed or presented as witnesses in any
       proceeding pertaining to this case, including trial.

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                      Opinion of the Court
    ¶155 There is some uncertainty regarding the preparation of
the waiver. Ms. Wells claimed that the form was fully filled out at
the time Mr. Menzies signed it. Mr. Menzies alleges that it was
blank when he signed it. There is also some uncertainty regarding
the scope of the waiver. It provided that counsel would not be
liable for Mr. Menzies‘s failure to provide the names of all
―witnesses who may have evidence pertinent to the defense.‖ The
parties appear to agree, however, that it was drafted with only
one person in mind: Mr. Menzies‘s girlfriend, Nicole Arnold.
Mr. Menzies did not want Ms. Arnold to testify and refused to
consent to calling her as a witness. According to Mr. Menzies,
Ms. Arnold would have testified, among other things, that
Mrs. Hunsaker ―was with Mr. Menzies voluntarily on the night of
her disappearance.‖ Ultimately, these factual disputes do not
create a genuine issue of material fact because, even accepting
Mr. Menzies‘s proffer, we conclude that there was no actual
conflict of interest.
    ¶156 A criminal defendant has a right to counsel free from
conflicts of interest. ―[T]he right to counsel is the right to the
effective assistance of counsel,‖139 and we have held that ―[t]he
right to counsel includes the right to counsel free from conflicts of
interest.‖140 ―[C]ounsel owes the client a duty of loyalty, a duty to
avoid conflicts of interest.‖141
   ¶157 To prevail on an ineffective assistance claim grounded on
an alleged conflict of interest, a petitioner ―must show that an
actual conflict of interest adversely affected his lawyer‘s
performance.‖142 To establish an actual conflict, the petitioner
―must demonstrate as a threshold matter . . . that the defense


   139   McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).
   140   Lafferty, 2007 UT 73, ¶ 62.
   141   Strickland, 466 U.S. at 688.
   142  State v. Taylor, 947 P.2d 681, 686 (Utah 1997) (internal
quotation marks omitted); see also Cuyler v. Sullivan, 446 U.S. 335,
350 (1980) (―We hold that the possibility of conflict is insufficient
to impugn a criminal conviction. In order to demonstrate a
violation of his Sixth Amendment rights, a defendant must
establish that an actual conflict of interest adversely affected his
lawyer‘s performance.‖); United States v. Burney, 756 F.2d 787, 792
(10th Cir. 1985) (―The conflict must be real rather than
hypothetical.‖).

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attorney was required to make a choice advancing his own
interests to the detriment of his client‘s interests.‖143 There is no
need for the petitioner to show prejudice once it is established that
counsel had an actual conflict of interest.144
    ¶158 Mr. Menzies repeatedly points out that we may presume
prejudice where there is an actual conflict of interest. But he fails
to clearly articulate his position regarding the threshold inquiry—
that is, how the waiver created an actual conflict. He argues that
execution of the waiver resulted in a conflict in the following
ways (although none of these arguments are developed
extensively): (1) it created an inference of a conflict because it
violated the Utah Rules of Professional Conduct, (2) it created a
conflict by creating an incentive for counsel to use a failure of
proof defense in lieu of a mental illness defense, and (3) it led
counsel to conduct a ―half-baked‖ investigation. We reject each of
these arguments.
    ¶159 First, Mr. Menzies argues that the waiver created a
conflict because it violated rule 1.8(h)(1) of the Utah Rules of
Professional Conduct, which prohibits counsel from ―mak[ing] an
agreement prospectively limiting the lawyer‘s liability to a client
for malpractice.‖145
    ¶160 We disagree with Mr. Menzies‘s assertion that the waiver
is a malpractice liability waiver that violated the Utah Rules of
Professional Conduct. It does not purport to be a blanket waiver
of any future malpractice claims Mr. Menzies may have against
his trial counsel. Rather, it explicitly memorializes the fact that the
decision not to interview or present certain witnesses was
Mr. Menzies‘s, not counsel‘s, so that the decision will not be
improperly construed as malpractice. The comments to rule
1.8(h)(1) explain that malpractice liability waivers are forbidden
because ―they are likely to undermine competent and diligent
representation.‖146 The liability waiver here offered counsel no
protection from malpractice claims generally, so it in no way
undermined counsel‘s competent representation and created no


   143 Taylor, 947 P.2d at 686 (alteration in original) (internal
quotation marks omitted).
   144   Id.
   145   UTAH R. PROF‘L CONDUCT R. 1.8(h)(1) (emphasis added).
   146   Id. R. 1.8 cmt. [14].

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                       Opinion of the Court
disincentive for counsel to work any less diligently. Counsel
would still have been liable for malpractice resulting from their
own failures. The liability waiver merely clarified that the
decision to not pursue certain witnesses was not counsel‘s but
was instead Mr. Menzies‘s. If anything the waiver created an
incentive for counsel to diligently represent Mr. Menzies because
they now had to overcome the limitation Mr. Menzies placed on
them.
    ¶161 In a related argument, Mr. Menzies also claims that trial
counsel created a conflict of interest by failing to comply with a
Utah State Bar Ethics Advisory Opinion Committee opinion. The
opinion was issued on September 30, 2013, and prohibits
counseling a client ―to enter into a plea agreement which requires
the client to waive the attorney‘s prospective possible ineffective
assistance at sentencing or other postconviction proceedings.‖147
This argument is also without merit. First, counsel‘s actions
cannot be evaluated under an ethics opinion issued over twenty
years after the representation. And second, the liability waiver
here is distinguishable from the type of waiver prohibited by the
ethics opinion because it did not waive ineffective assistance
claims but instead only waived claims to the extent Mr. Menzies
refused to cooperate and identify the names of witnesses.
    ¶162 Moreover, even if the liability waiver did violate the Utah
Rules of Professional Conduct we would still conclude, as the
PCC did, that the waiver did not result in an actual conflict. This
is because a violation of the Utah Rules of Professional Conduct
does not, by itself, constitute ineffective assistance.148 Instead,
Mr. Menzies must show that counsel made ―a choice advancing
his own interests to the detriment of his client‘s interest.‖149 He
must show how a violation of the rules of professional conduct, in
connection with counsel‘s specific actions in this case, created a
conflict of interest.




   147 UTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE, Op.
13-04, 1 (Sept. 30, 2013).
   148 United States v. Gallegos, 39 F.3d 276, 279 (10th Cir. 1994) (―It
is apparent that some elements [of the rules] bear on‖
constitutional issues; ―a violation of the rules will not in itself
constitute a constitutional violation.‖).
   149   Taylor, 947 P.2d at 686 (internal quotation marks omitted).

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    ¶163 Mr. Menzies points to two actions by counsel that he
believes evidence such conflict. He first argues that the waiver
created an actual conflict because it created an incentive for
counsel to pursue a failure-of-proof defense rather than a mental
illness defense. He argues that ―since [counsel] failed to use a
readily available and cogent mental illness defense . . . it is
reasonable to infer that [counsel‘s] conflict of interest prejudiced
Mr. Menzies.‖ But he has not indicated beyond inference how
execution of the waiver actually led to or caused trial counsel to
advance a failure-of-proof defense in lieu of a mental illness
defense. Further, as we noted above, trial counsel‘s decision to opt
for a failure-of-proof defense instead of a mental illness defense
was a reasonable strategic choice. We decline to give credence to
this claimed inference as proof of actual conflict.
    ¶164 And second, Mr. Menzies suggests that ―the conflict
resulted in [counsel] doing a half-baked investigation.‖ This
argument fails for two reasons. First, Mr. Menzies has not shown
how the waiver led counsel to conduct a deficient investigation.
Indeed, as we noted above, if anything the waiver created an
incentive for counsel to conduct a more thorough investigation to
overcome the hurdles placed in their way by Mr. Menzies.
Moreover, counsel reasonably chose to pursue a failure-of-proof
defense only after they adequately investigated the possibility that
Mr. Menzies suffered from a mental illness.150 Mr. Menzies‘s
suggestion that counsel conducted a ―half-baked investigation‖ is
flatly wrong.
    ¶165 We accordingly reject Mr. Menzies‘s argument that trial
counsel labored under a conflict of interest because he has not
established that counsel was required to make a choice advancing
their interests to his detriment.
5. Conclusion—Guilt-Phase Ineffective Assistance of Counsel
    ¶166 In conclusion, we hold that Mr. Menzies has not raised a
genuine issue of material fact regarding trial counsel‘s guilt-phase
representation. Trial counsel‘s decision to use a failure-of-proof
defense strategy was reasonable and Mr. Menzies has not shown
that counsel‘s failure to use a mental illness defense prejudiced his
case. Additionally, trial counsel‘s treatment of Mr. Britton‘s
testimony was reasonable given the facts available to them and
Mr. Menzies has not alleged facts that raise a genuine issue as to


   150   Supra ¶¶ 118–20.

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                        Opinion of the Court
whether counsel had access to any evidence of Mr. Britton‘s
alleged mental health problems. Further, trial counsel adequately
challenged Mr. Larrabee‘s and Ms. Brown‘s testimony. Finally,
Mr. Menzies is unable to show that signing the liability waiver
created an actual conflict of interest such that he was denied his
right to conflict-free counsel. Accordingly, we affirm the PCC‘s
grant of summary judgment with respect to each of Mr. Menzies‘s
claims of guilt-phase ineffective assistance.
     C. Mr. Menzies Has not Raised a Genuine Issue of Material Fact
         Regarding Trial Counsel’s Penalty-Phase Representation
    ¶167 Before discussing the merits of Mr. Menzies‘s ineffective
assistance of counsel claims at the penalty phase, we first provide
additional facts to give context to his three categories of claims:
(1) inadequate qualifications and preparation, (2) failure to
investigate, and (3) failure to present adequate mitigating
evidence. Next, we discuss the relevant standard and applicable
ABA guidelines. We ultimately reject Mr. Menzies‘s ineffective
assistance of counsel claims under each category because they are
either raised for the first time on appeal or he fails to demonstrate
prejudice. As a final matter, we reach his claim that the PCC
improperly struck Judge Uno‘s affidavit and conclude that the
affidavit is immaterial.
1. Additional Facts Relevant to Trial Counsel‘s Penalty-Phase
Representation
    ¶168 During the penalty phase, the State highlighted
Mr. Menzies‘s extensive criminal background. His prior crimes
included three robberies. The first occurred on December 21, 1975.
On that occasion, Mr. Menzies stole a truck from a dealership and
picked up a partner. The two intended to rob someone and steal
the person‘s marijuana. Instead, Mr. Menzies and his partner
robbed a 7-11 convenience store. Mr. Menzies threatened the store
clerk with a gun, ordered him to a back room, and ran away with
money from the cash register. The second robbery occurred five
days later. After Mr. Menzies and his partner stole another truck
from a different dealership, the two proceeded to rob the same 7-
11 store and the same store clerk. But this time, Mr. Menzies
insisted the clerk leave the store with him and his partner. Once
out of town, the robbers dropped the clerk off, told him to get into
a nearby ditch, and said that if he stuck his head out they would
blow it off. The third robbery happened after Mr. Menzies
escaped from jail in 1978 while serving time for the first two
robberies. After escaping, he robbed a cab driver. During that
robbery, he pointed a shotgun at the cab driver‘s head. He took

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$76 in cab fares and $1 from the cab driver‘s wallet. When the cab
driver attempted to reach for a gun, Mr. Menzies shot him in the
right arm. Five surgeries and ten years later at sentencing
proceedings, the cab driver still could not write with his right
hand.
    ¶169 The State also pointed to acts by Mr. Menzies before trial
to show that he could not be rehabilitated. For instance, while
Mr. Menzies underwent evaluation by the Utah State Hospital,
Ms. Arnold sneaked him a screw driver. The State‘s brief suggests
Mr. Menzies intended to unscrew blocks securing the hospital
windows. Additionally, Mr. Menzies kept a sharpened metal dust
pan handle under his mattress. During his time in the Salt Lake
County Jail, Mr. Menzies told a jail officer that the officer did not
know the problems Mr. Menzies could cause. Mr. Menzies
threatened to take out a guard or another inmate. Eventually, the
jail transferred him to the behavior modification unit. The State
argued that Mr. Menzies‘s criminal history, combined with the
circumstances of Mrs. Hunsaker‘s murder, showed that he posed
a continuing threat of violence and could not be rehabilitated.
    ¶170 Ms. Wells and Ms. Palacios called several witnesses to
rebut the State‘s case and argued that Mr. Menzies should not
receive the death penalty. Mr. Menzies‘s aunt and sister testified
regarding his family history and circumstances. Their testimonies
detailed various abuses Mr. Menzies endured as a child. For
instance, they testified that his stepfathers abused him daily,
raped his mother, belittled him for failing to kill a rabbit, burned
the family car to prevent his mother from leaving home, and beat
his pregnant mother so severely that her child died shortly after
birth. Mr. Menzies‘s mother often left the family for extended
periods of time. She died when he was only fourteen. After his
mother‘s death, Mr. Menzies‘s stepfathers took everything the
mother had and did not provide for Mr. Menzies. Mr. Menzies‘s
family characterized him as giving and compassionate. They
stated that they hoped he would receive only a life sentence.
Mr. Menzies‘s sister noted she would feel a tremendous void if
the court sentenced Mr. Menzies to death.
   ¶171 Mr. Menzies‘s family also provided a certificate from
Alcoholics Anonymous and poems and letters from Mr. Menzies.
Mr. Menzies explained in one letter that he committed the
previous robberies because he felt rejected, and that he blamed
only himself for those prior crimes.
    ¶172 Douglas Wingleman, an educational psychologist,
testified regarding Mr. Menzies‘s mental state. Dr. Wingleman
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said Mr. Menzies suffered from mental deficits that prevented
him from responding appropriately to his surroundings. He
noted, however, that with proper treatment Mr. Menzies might be
able to function normally.
    ¶173 Michael DeCaria, a clinical psychologist, also testified.
Dr. DeCaria emphasized the turbulent childhood Mr. Menzies
was forced to endure and the detrimental effects it had on him.
Dr. DeCaria noted that Mr. Menzies‘s stepfathers hit him, forced
him to sleep in a very small room with his sister for three years,
denied him dinner, and kept him home from school. Dr. DeCaria
further noted that Mr. Menzies‘s problem with substance abuse
resulted from his desire to alter his consciousness and make his
world better. Dr. DeCaria stated that Mr. Menzies had no real
caretaker growing up because of his stepfathers‘ abuse, his
mother‘s early death, and his sister‘s obligation to help care for his
sickly younger brother. Dr. DeCaria opined that people raised like
Mr. Menzies often do not develop a normal conscience. In
Dr. DeCaria‘s opinion, Mr. Menzies suffered from three distinct
personality disorders. Dr. DeCaria testified, however, that
Mr. Menzies may still have time to change. He noted that
antisocial behavior tends to decline around age thirty, and
Mr. Menzies was twenty-nine at the time. He also suggested that
Mr. Menzies had a desire to change his behavior. Finally, he said
that Mr. Menzies had the potential to function near a college-
student level.
    ¶174 Trial counsel called Laddy Pruett, a prison social worker,
to testify. Mr. Pruett testified that, based on Mr. Menzies‘s
criminal history and jail experience, he would be placed on
twenty-three hour lockdown. He would be entitled to limited
supervised recreation, no work release, and would never be left
alone on prison grounds. On the other hand, Mr. Pruett stated
that Mr. Menzies took pride as a janitor during a prior prison stint
and took pride in his family. Mr. Pruett indicated, that during the
time he worked with him, Mr. Menzies did not try to escape or
fight with others. In fact, Mr. Menzies had no disciplinary action
against him for twenty-two months before being released from
prison.
   ¶175 Trial counsel also called Paul Sheffield, the Utah Board of
Pardons Administrator, to testify regarding the likelihood of
parole in a similar case. Mr. Sheffield outlined the factors the
Board of Pardons would consider and concluded that
Mr. Menzies would likely serve his entire sentence in prison.


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    ¶176 Judge Uno balanced the mitigating and aggravating
evidence. In the end, he concluded that the aggravating
circumstances outweighed any mitigating evidence and sentenced
Mr. Menzies to death.
2. Relevant Standard and ABA Guidelines
   ¶177 The Strickland standard applies to a claim of penalty-
phase ineffective assistance of counsel — that is, to prevail, a
defendant must establish both deficient performance and
prejudice.151 The same ―strong presumption that trial counsel
rendered adequate assistance‖ applies as well.152 A defendant‘s
burden to prevail on an ineffective assistance of counsel claim at
the penalty phase differs slightly, however, from his burden at the
guilt phase. First, to show deficient performance at the penalty
phase, a defendant must establish that, ―under the prevailing
professional norms at the time of [the defendant‘s] trial,‖153
counsel failed to adequately investigate154 and present155
appropriate background and mitigating evidence. And as
discussed, supra ¶¶ 83–88, applicable ABA standards are relevant,
but not dispositive in our analysis of counsel‘s performance in this
respect.
   ¶178 Second, to establish prejudice, a defendant must show
both that counsel should have presented the evidence proffered in
post-conviction review, and that there was a ―reasonable
probability the sentence would have been different if the
sentencing judge and jury had heard the significant mitigation
evidence‖ that defendant‘s counsel failed to investigate or
present.156 And ―[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome‖—which
―requires a substantial, not just conceivable, likelihood of a


   151   Archuleta, 2011 UT 73, ¶ 38.
   152 Id. ¶ 39; see also Cullen, 131 S. Ct. at 1403 (reaffirming the
presumption from Strickland in the context of an ineffective
assistance of counsel challenge brought to penalty-phase counsel‘s
actions).
   153   Porter v. McCollum, 558 U.S. 30, 39–40 (2009).
   154   Id.
   155   See Williams v. Taylor, 529 U.S. 362, 393 (2000).
   156   Porter, 558 U.S. at 31.

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different result.‖157 Although Mr. Menzies claims that he must
only establish ―some possibility that a life sentence would have
been imposed,‖ (emphasis added), this is simply not the standard.
A defendant cannot merely present evidence that ―would barely
have altered the sentencing profile‖158 or that ―would likely only
have added color to what [a witness] actually did testify to at the
penalty phase.‖159
    ¶179 Mr. Menzies raises several ineffective assistance of
counsel claims with respect to penalty-phase counsel‘s
qualifications, as well as counsel‘s investigation and presentation
of his case. While we recite the specific ABA/NLADA guidelines
in our discussion of each respective claim, it is worth repeating
that these guidelines do not set a baseline for counsel‘s Sixth
Amendment constitutional duty of adequate representation.
Rather, and as the PCC itself correctly recognized, they only
―form some basis of comparison‖ to evaluate counsel‘s
performance.
3. Claims of Inadequate Qualifications and Early Preparation
    ¶180 Mr. Menzies first challenges his counsel‘s performance by
claiming that they lacked any training in how to conduct a capital
mitigation investigation. Indeed, co-counsel Ms. Palacios admitted
as much. In making this claim, Mr. Menzies cites to NLADA
Standard 5.1.I.B.,160 which covers the qualifications of trial co-
counsel; he claims this standard required Ms. Palacios‘s
disqualification. Mr. Menzies also claims that counsel performed
ineffectively in failing to initiate the mitigation investigation until

   157   Cullen, 131 S. Ct. at 1403 (internal quotation marks omitted).
   158   Strickland, 466 U.S. at 700.
   159   Gardner v. Galetka, 568 F.3d 862, 881 (10th Cir. 2009).
   160  The standard requires, among other qualifications, that
attorneys have ―at least three years litigation experience in the
field of criminal defense,‖ NLADA STANDARDS FOR THE
APPOINTMENT OF COUNSEL IN DEATH PENALTY CASES 5.1.I.B (ii)(a)
(1988), and also ―have prior experience as lead counsel or co-
counsel in no fewer than three jury trials of serious and complex
cases which were tried to completion, at least two of which were
trials in which the charge was murder or aggravated murder; or
alternatively, of the three jury trials, at least one was a murder or
aggravated murder trial and one was a felony jury trial.‖ Id.
5.1.I.B(ii)(b).

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after the guilt phase had ended. To support this claim, he cites
NLADA Standard 11.4.1(a)161 and ABA Standard 4-4.1.162 We
reject both claims.
    ¶181 First, Utah Rule of Criminal Procedure 8, rather than the
cited NLADA/ABA standards, sets the ―minimum standards for
defense counsel in a capital case.‖163 In terms of qualifications,
rule 8 sets forth the minimum levels of litigation and courtroom
experience required of counsel at both trial and on appeal. The
rule makes clear, however, that ―[m]ere noncompliance with this
rule . . . shall not of itself be grounds for establishing that
appointed counsel ineffectively represented the defendant at trial
or on appeal.‖164 And as we stated in Taylor v. Warden, a
―[defendant‘s] arguments regarding the experience of his counsel
have no relevance to [defendant‘s] claim of ineffective assistance.‖165
―Instead, we look to counsel‘s actual performance to determine
whether it was adequate.‖166Accordingly, we reject his claim that
counsel rendered ineffective assistance merely by virtue of their
inadequate qualifications under NLADA Standard 5.1.I.B.
    ¶182 We turn now to Mr. Menzies‘s claim that counsel delayed
in initiating an investigation. We ultimately affirm the PCC‘s
ruling rejecting this claim because he fails to demonstrate
prejudice. The NLADA standard applicable to investigation
timing requires only that the mitigation investigation should
―begin immediately upon counsel‘s entry into the case and should
be pursued expeditiously.‖167 And the relevant ABA standard
requires only that ―counsel should conduct a prompt

   161 This standard requires counsel to conduct independent
investigations at the guilt and penalty phases and that ―[b]oth
investigations should begin immediately upon counsel‘s entry
into the case and should be pursued expeditiously.‖ Id. 11.4.1(a).
   162This standard requires only that ―counsel should conduct a
prompt investigation.‖ ABA STANDARDS FOR THE DEFENSE
FUNCTION 4-4.1 (1979) (emphasis added).
   163   Taylor v. Warden, 905 P.2d 277, 282 n.2 (Utah 1995).
   164   UTAH R. CRIM. P. 8(f).
   165   905 P.2d at 282.
   166   Id.
     NLADA STANDARDS FOR THE APPOINTMENT
   167                                                 OF   COUNSEL   IN
DEATH PENALTY CASES 11.4.1(a) (1988).

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                         Opinion of the Court
investigation.‖168 The PCC correctly noted that the only ―real‖
factual dispute concerned when the mitigation investigation
began. It also ruled that Mr. Menzies‘s claim failed regardless
because he did not show how the late initiation of the
investigation prejudiced, in any way, the outcome of the case. We
agree. Even if it is true that counsel did not begin the mitigation
investigation until after the guilt phase, and thus not ―immediately
upon counsel‘s entry‖ as suggested by the NLADA guidelines,
Mr. Menzies failed to demonstrate how this prejudiced his case.
Furthermore, the evidence actually suggests that counsel did
initiate the mitigation investigation before the guilt phase began,
since Dr. DeCaria interviewed Mr. Menzies over fourteen months
before trial.
4. Failure-to-Investigate Claims
    ¶183 As noted above, a defendant can prevail under a failure-
to-investigate claim only by demonstrating both that counsel‘s
investigation was deficient under the prevailing professional
norms and that the defendant was prejudiced thereby—in other
words, that if counsel had presented the information at trial, there
would have been a substantial likelihood of a different result. The
Sixth Amendment does not require counsel to interview every
possible relative or acquaintance or to fully investigate every
potential lead. Counsel has a duty only ―‗to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.‘‖169 Still, there must be a
reasonable, articulable reason for not interviewing a particular
witness or for not following a particular lead. ―[F]ailing to
investigate because counsel does not think it will help does not
constitute a strategic decision, but rather an abdication of
advocacy.‖170 That said, ―[t]he mere fact that other witnesses
might have been available or that other testimony might have
been elicited from those who testified is not a sufficient ground to
prove ineffectiveness of counsel.‖171 Indeed, the witnesses who

     ABA STANDARDS
   168                   FOR THE    DEFENSE FUNCTION 4-4.1 (1979)
(emphasis added).
   169  Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (quoting
Strickland, 466 U.S. at 691).
   170 Lenkart, 2011 UT 27, ¶ 28 (internal quotation marks
omitted).
   171 Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995)
(internal quotation marks omitted).

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were called may have sufficiently conveyed the necessary
mitigating information. And counsel‘s decision not to investigate
is reviewed ―for reasonableness in all the circumstances, applying
a heavy measure of deference to counsel‘s judgments.‖172
    ¶184 Mr. Menzies argues that counsel failed to investigate
multiple individuals and related issues, but a number of these
arguments are raised for the first time on appeal.173 As to his
arguments that are preserved, he claims that counsel failed to
investigate: (1) details of sexual molestation; (2) school records
evincing psychological troubles; (3) early mental illness; (4) fetal
alcohol syndrome (FAS); (5) neglect and abuse by his step-father,
his father, and mother; (6) the amounts and kinds of drugs and
alcohol he ingested prior to the murder; and (7) the effect of his
parents‘ divorce.
    ¶185 We    conclude     that   counsel‘s    investigation     of
Mr. Menzies‘s mental health issues and his background for
purposes of mitigation was sufficiently comprehensive and thus
did not constitute deficient performance. Mr. Menzies‘s counsel
used three different mental health professionals to evaluate any
potential psychological issues. His counsel interviewed his sister
and aunt to understand his childhood and background. They
investigated the prison conditions and potential for rehabilitation
if Mr. Menzies were given life in prison. None of the seven issues
Mr. Menzies claims counsel failed to investigate thus survives
review.
    ¶186 First, there was no evidence of sexual molestation
provided by any of the mental health professionals or
Mr. Menzies‘s sister or aunt. Although Mr. Menzies claims
otherwise in his briefing, his own affidavit does not raise this
issue, and an affidavit from a mitigation specialist,
Marissa Sandall-Barrus, mentions only that ―[d]uring my
mitigation investigation there was some information provided
that indicated [Mr. Menzies] may have been molested by his step-


   172 Kimmelman, 477 U.S. at 384 (internal quotation mark
omitted).
   173  Mr. Menzies raises multiple new failure-to-investigate
claims on appeal, including that counsel failed to interview his
grandparents or a ―wife,‖ and that counsel failed to review a state
petition for child neglect and request a pre-sentence report. We
therefore disregard them as procedurally barred.

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                        Opinion of the Court
mother.‖ Other than this brief reference, there is nothing to
indicate where this ―some information‖ came from or that a
reasonable investigation would have uncovered such evidence.
Therefore, we reject this claim.
    ¶187 Second, Mr. Menzies claims that counsel failed to
investigate school records that detailed his problems in school,
including prolonged absences and abuse recognized by school
administrators and teachers. Again, Mr. Menzies‘s own affidavit
does not raise this issue. And Ms. Sandall-Barrus noted in her
affidavit that LDA had access to the school records, but that a
portion of them were missing and are no longer available. Even if
counsel performed deficiently in failing to search for the missing
records (years 1986 to 1988), Mr. Menzies has made no showing of
prejudice based on what the included education records
demonstrated. In fact, the school records that were in the record
give evidence only of a very poor track record of attendance—
nothing else sustains a conclusion that the un-investigated
records, if included, would have impacted the case in any way.
    ¶188 As to Mr. Menzies‘s third, fourth, and fifth failure-to-
investigate claims, we conclude that there was adequate
investigation. First, Mr. Menzies‘s counsel hired no less than three
mental health professionals to assess him as to any current and
prior mental health problems. Second, Mr. Menzies‘s own brief
concedes that there was nothing material to suggest that he
suffered from FAS.174 The fact that his father and grandparents
were alcoholics and that his mother was a bar maid do not sustain
a conclusion that counsel‘s performance was deficient for failure
to investigate the possibility of FAS. Finally, there was a host of
evidence presented at trial concerning Mr. Menzies‘s abuse as a
child. This was offered through mental health experts, as well as
through his sister and aunt.
    ¶189 Mr. Menzies‘s sixth and seventh failure-to-investigate
claims fail as well, because he has failed to show that counsel‘s
failure to more comprehensively investigate these issues
prejudiced his case in any way. Mr. Menzies first claims that
counsel did not investigate the amounts and kinds of drugs and
alcohol he had consumed at the time of the murder. He argues
that Utah Code section 76-3-207(2)(d) (1983 Supp.) required
counsel to present this information as a mitigating factor. In fact,


   174His brief states that ―[t]here is no direct evidence of this
fact‖—that he may have suffered from FAS.

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counsel did present mitigating evidence under section 76-3-
207(2)(d) (1983 Supp.), which suggests counsel present evidence
concerning ―intoxication, or influence of drugs.‖ At sentencing,
counsel questioned Dr. DeCaria, a mental health professional, and
asked whether Mr. Menzies was under the influence of drugs or
alcohol at the time of the murders. Dr. DeCaria responded that
―he was using alcohol and other drugs heavily during the few
days before his incarceration.‖ Dr. DeCaria then went on to talk
about the multiple effects of such drug and alcohol use. Because
evidence of heavy drug use and alcohol consumption was clearly
investigated and presented, we reject this argument.
    ¶190 Finally, Mr. Menzies does not show how an investigation
of the effects of the divorce of his parents would have added
anything material to the mental health professionals‘ assessment.
As the State points out, counsel presented numerous ―gruesome‖
details concerning Mr. Menzies‘s abuse and neglect; additional
information concerning his parents‘ divorce would have been
unlikely to affect the sentence, given the myriad details that were
investigated and presented, including the effect of Mr. Menzies‘s
mother‘s death.
   ¶191 In sum, Mr. Menzies has not overcome the ―strong
presumption‖ that counsel‘s performance was constitutionally
compliant.175 And he has also failed to demonstrate that counsel‘s
performance prejudiced his case. Accordingly, we reject each of
his failure-to-investigate claims and affirm the PCC‘s grant of
summary judgment for the State.
5. Presentation of Background Evidence and Organic Brain
Evidence
   ¶192 Finally, Mr. Menzies argues that penalty-phase counsel
was ineffective for failing to present sufficient background
evidence and evidence concerning organic brain evidence. We
now address these arguments.
   a. Mr. Menzies‘s counsel presented sufficient background
      evidence
   ¶193 First, Mr. Menzies claims that his penalty-phase counsel
was ineffective for not presenting sufficient background evidence.
In particular, he claims that counsel was required,
constitutionally, to include a social history report and have a


   175   Strickland, 466 U.S. at 689.

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                       Opinion of the Court
forensic social worker testify as part of the mitigation defense. He
claims that Dr. DeCaria gave only a psychological evaluation,
which did not constitute a sufficient social history. We reject this
claim because counsel did provide a sufficient social history
through multiple witnesses. And Mr. Menzies has cited no rule
for the proposition that counsel was required to have a mental
health professional, specifically, give this social history.
    ¶194 ABA Guideline 11.8.6(B) (1989) suggests that counsel
present mitigating evidence of the following: (1) medical and
mental health history, including substance abuse; (2) educational
history; (3) military service; (4) employment and training history;
(5) family and social history, including physical, sexual, or
emotional abuse, neighborhood surroundings and peer influence,
prior correctional experience and professional intervention;
(6) rehabilitation potential; (7) record of prior offenses, especially
where there is no record, a short record, or a record of non-violent
offenses; and (8) expert testimony concerning any of these seven
factors and the resulting impact on the defendant.
    ¶195 We conclude, consistent with the PCC‘s determination,
that penalty-phase counsel presented evidence under each of
these factors. As noted in our factual sections above, supra ¶¶ 19,
168–76, counsel utilized multiple witnesses and professionals to
provide a proper mitigation defense. This includes: (1) extensive
evidence of Mr. Menzies‘s social history and mental health,
including physical, emotional and psychological abuse, as well as
substance abuse; (2) evidence of Mr. Menzies‘s educational
background in elementary and middle school; (3) evidence of
Mr. Menzies‘s prior employment and prior incarcerations,
including employment in prison; and (4) Mr. Menzies‘s
rehabilitative potential, that he would likely never be released,
and that he would be held under very restrictive conditions.
Moreover, counsel presented evidence of how this background
affected his mental health and psychological condition through
multiple witnesses, including two mental health professionals—
Dr. DeCaria and Dr. Wingleman. Counsel also called
Mr. Menzies‘s sister and aunt to provide graphic descriptions of
Mr. Menzies‘s home and social life and abuse.
    ¶196 Mr. Menzies claims that there was additional evidence
under most of these factors that should have been raised, but we
affirm the PCC‘s determination that the additional evidence and
witnesses were unnecessary. For example, he claims that counsel
should have called multiple additional witnesses to testify,
including his biological father, his step-fathers and step-mother,
and his teachers. But as the PCC recognized, each of these
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witnesses was either inaccessible or would have been unhelpful, if
not damaging, to Mr. Menzies‘s mitigation defense. For instance,
his biological father was inaccessible because he had not been
seen for twelve years. Furthermore, Mr. Menzies failed to show
that his stepfathers were available, and Mr. Menzies‘s sister and
aunt provided information about them in any event. Although
Mr. Menzies‘s stepmother may have been available, she would
have presented cumulative evidence that was already provided
by Mr. Menzies‘s sister and aunt. Finally, the PCC concluded,
correctly, that calling Mr. Menzies‘s teachers would have done
more harm than good, since even though some of their testimony
would have been sympathetic, overall it would have harmed the
mitigation strategy by emphasizing Mr. Menzies‘s poor
educational track record. For instance, one teacher noted that
Mr. Menzies once stole from him.
    ¶197 And even though Dr. DeCaria gave extensive testimony
at the penalty phase concerning Mr. Menzies‘s background,
Mr. Menzies still claims that Dr. DeCaria failed to inform the jury
of specific instances of abuse and neglect, including the fact that
his mother abandoned him for multiple days at a time, that his
stepfather held his hand over a flame, and that he was forced to
beat a rabbit over its head and slit its throat.
    ¶198 The problem with all of Mr. Menzies‘s claims here—on
everything ranging from failure to call additional witnesses to
failure to raise additional specific instances of abuse and other
background information through direct examination—is that the
Sixth Amendment does not require that counsel present
cumulative evidence. Counsel is not ineffective merely because
the petitioner alleges that counsel failed to use a potential witness
or introduce specific evidence. Counsel need only present a
reasonable and complete mitigation defense. It does not need to
be cumulative.176




   176 See Bobby v. Van Hook, 558 U.S. 4, 11 (2009) (―[G]iven all the
evidence [counsel] unearthed from those closest to [petitioner‘s]
upbringing and the experts who reviewed his history, it was not
unreasonable for his counsel not to identify and interview every
other living family member . . . .‖).

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                        Opinion of the Court
   b. Mr. Menzies‘s counsel did not perform deficiently by
      failing to raise evidence of organic brain damage
    ¶199 Mr. Menzies‘s final penalty-phase ineffective assistance
claim is that counsel failed to introduce evidence of organic brain
damage (OBD)—that Mr. Menzies‘s brain was physically
impaired in such a way that it impacted his judgment or
constituted a mental disease. Mr. Menzies claims that Utah
common law and Utah statutes required presentation of OBD and
that failure to present such evidence constitutes prejudice. We
reject these claims because Mr. Menzies misunderstands what is
required of counsel under the law, and because introducing
evidence of OBD would likely have hurt, rather than helped,
Mr. Menzies‘s case.
    ¶200 First, although Utah statutes do suggest that counsel raise
evidence of mental impairment or disease, including the impact of
drugs and alcohol, they do not specifically require counsel to
introduce evidence of OBD.177 As a preliminary matter, we note
that Mr. Menzies‘s arguments concerning Utah common law and
the sentencing statute are unpreserved—they were raised for the
first time on appeal.178 And Mr. Menzies‘s common-law argument
is unsupported by the cases he cites. Though both cases do refer to
OBD, neither establishes in any way that trial counsel must
present OBD evidence as a matter of effective assistance of
counsel.179 Nor does Utah‘s sentencing statute require OBD
evidence. Counsel need only raise mental illness/mental health
concerns that are appropriate under a reasonable mitigation
strategy. That was done here.
    ¶201 At the penalty phase, counsel elicited testimony from two
separate mental health experts, both of whom testified that
Mr. Menzies‘s propensity for violence was likely to abate in
prison. They also testified to Mr. Menzies‘s substance abuse and


   177   See UTAH CODE § 76-3-207(2)(d) (Supp. 1983).
   178   See State v. Gulbransen, 2005 UT 7, ¶ 48, 106 P.3d 734.
   179 Gardner v. Holden, 888 P.2d 608, 619 (Utah 1994) (reversing a
trial court‘s finding of ineffective assistance on the basis that
additional time to probe the nature of defendant‘s OBD would not
have impacted the sentencing outcome); State v. DePlonty, 749
P.2d 621, 624–27 (Utah 1987) (holding that the trial court‘s refusal
to find a defendant mentally ill was error where the State did not
dispute a doctor‘s report concerning OBD).

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the possibility that it directly affected him at the time of the
murder. Although counsel also commissioned a psychiatrist, they
did not call the psychiatrist to testify because the testimony would
have hurt the mitigation defense—the psychiatrist‘s report
focused on Mr. Menzies‘s violent nature and that he was unlikely
to change. Although Mr. Menzies claims that counsel should have
hired an additional neuropsychological examination to explore
OBD and FAS, he makes no showing that counsel was required as
a matter of constitutional effectiveness of counsel to explore these
additional possibilities.
    ¶202 In fact, the evidence suggests that counsel was unaware
of the possibility that Mr. Menzies had OBD or FAS and the
experts counsel hired to investigate any such possibility found no
supporting evidence in their inquiries. Given that ―it is reasonable
for counsel to rely on the judgment and recommendations of
qualified experts‖ in developing a mitigation strategy, it was
reasonable for counsel not to have explored the possibility of
these additional conditions, since the three commissioned mental
health experts provided no evidence suggesting to counsel that
those conditions were likely to have affected Mr. Menzies‘s
psychological condition.180 And as the PCC recognized, there was
also no direct evidence of OBD.
    ¶203 Finally, introducing evidence of OBD would have hurt
Mr. Menzies‘s mitigation defense, rather than helped. Because
―impulse control [would be] forever and always impaired as a
result of that OBD,‖ this would have undercut the mitigation
strategy of showing that Mr. Menzies was capable of
rehabilitation. Had OBD evidence been introduced, it would have
supported the State‘s position that Mr. Menzies would continue to
be violent.
   ¶204 In sum, Mr. Menzies‘s failure to investigate an OBD
evidence claim fails because he has not established both that
counsel‘s performance was deficient and that counsel‘s
performance prejudiced his case. Counsel provided extensive
evidence of his background and abuse, as well as his mental and
physical health. Furthermore, counsel‘s failure to present OBD
was in no way prejudicial to Mr. Menzies‘s case, since it would
have undercut his position that he was capable of rehabilitation.
Critically, Mr. Menzies has failed to make the requisite showing
that the additional witnesses and additional information, if

   180   Archuleta, 2011 UT 73, ¶ 129.

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                        Opinion of the Court
presented, would have been enough to create a ―substantial
likelihood‖ of a sentence less than death. Accordingly, we reject
his ineffective assistance of counsel arguments here.
6. Judge Uno‘s Affidavit
   ¶205 A final argument raised by Mr. Menzies as to the penalty
phase of his trial relates not to ineffective assistance but instead to
an affidavit provided by the sentencing judge, Judge Raymond
Uno. In his affidavit, Judge Uno stated that he misapplied the
heinousness factor under Utah Code section 76-5-202(1)(q) and
that he should have imposed a life sentence instead of the death
penalty. The PCC struck Judge Uno‘s affidavit.
    ¶206 We reject Mr. Menzies‘s argument that the PCC erred in
striking the affidavit because Judge Uno‘s post-hoc reflections on
the case in which he served decades ago as the sentencing judge
are immaterial in the present case, and even if we were to accept
his argument that Judge Uno erred in applying a single
aggravating factor, the aggravating factors together would still
have supported a sentence of death.
    ¶207 To begin, Judge Uno‘s reflections are immaterial here. In
support of his argument that Judge Uno‘s assertion should be
considered, Mr. Menzies cites State v. Bobo.181 In Bobo, the judge
filed an affidavit to fill a gap in the record concerning the nature
of a defendant‘s plea. Judge Uno‘s affidavit is inapposite to the
situation in Bobo in that it attempts to undo a previous judgment
altogether. Furthermore, a judgment ―ought never to be
overthrown or limited by the oral testimony of a judge . . . of what
he had in mind at the time of the decision.‖182 Indeed, it is ―well-
settled law that testimony revealing the deliberative thought
processes of judges . . . is inadmissible.‖183 Although Judge Uno‘s
decision at the time of sentencing was determinative of
Mr. Menzies‘s case, his later post-hoc reflections are given no
weight.
    ¶208 And even if Judge Uno did misapply the heinousness
factor, we conclude that a sentence of death was still correctly
imposed. The heinousness factor is one of many aggravating
factors that contribute to a sentence of death. Given the many
aggravating factors at issue, and as we previously concluded in

   181   803 P.2d 1268, 1271 (Utah Ct. App. 1990).
   182   Fayerweather v. Ritch, 195 U.S. 276, 307 (1904).
   183   Rubens v. Mason, 387 F.3d 183, 191 (2d Cir. 2004).

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Menzies II with respect to the sentencing court‘s application of the
heinousness factor, ―[any] error was harmless because we can still
confidently conclude beyond a reasonable doubt that the
remaining aggravating circumstances and factors outweigh the
mitigating factors and that the imposition of the death penalty
was justified and appropriate.‖184
7. Conclusion—Penalty-Phase Ineffective Assistance of Counsel
    ¶209 In conclusion, penalty-phase counsel‘s actions did not
constitute ineffective assistance of counsel. Counsel began
penalty-phase preparations in sufficient time, conducted a
sufficient mitigation investigation, and presented a reasonable
and complete mitigation defense. And even if we were to accept
any of Mr. Menzies‘s arguments that penalty-phase counsel
provided ineffective assistance, he fails to demonstrate how
counsel‘s decisions or failures prejudiced his mitigation defense.
Accordingly, we affirm the PCC‘s grant of summary judgment on
each of Mr. Menzies‘s penalty-phase ineffective assistance claims.
We further affirm the PCC‘s decision to strike Judge Uno‘s
affidavit because his post-hoc reflections on the case are
immaterial.
   D. Mr. Menzies Has Not Raised a Genuine Issue of Material Fact
      Regarding Appellate Counsel’s Representation
    ¶210 Mr. Menzies raises three challenges regarding appellate
counsel‘s representation.185 He argues that appellate counsel
rendered ineffective assistance by (1) hiding possible Strickland
claims, (2) failing to complete an ―appellate investigation,‖ and
(3) failing to properly challenge the trial court‘s reasonable doubt
jury instruction. We affirm the PCC‘s decision as to each claim
and conclude that Mr. Menzies has not raised a genuine issue of
material fact as to either part of the Strickland test.
   ¶211 The test for determining whether appellate counsel
rendered ineffective assistance is substantially the same as the test

   184 Menzies II, 889 P.2d at 405 (internal quotation mark
omitted).
   185 One additional challenge regarding appellate counsel‘s
performance is not properly before us. Mr. Menzies argues that
appellate counsel should have argued that he was denied due
process by being shackled in front of the jury. As explained, supra
¶ 72 n.69, this claim is not properly before us because Mr. Menzies
did not raise it in his Fifth Amended Petition.

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                         Opinion of the Court
for assessing whether trial counsel rendered ineffective
assistance.186 That is, the Strickland two-part test applies. But we
have further held that where a petitioner argues that appellate
counsel rendered ineffective assistance by failing to raise a claim,
the petitioner ―must show that there is a genuine issue of material
fact with respect to whether appellate counsel overlooked an issue
which is obvious from the trial record and . . . which probably
would have resulted in reversal on appeal.‖187 With this
framework established we examine the merits of each of
Mr. Menzies‘s claims of ineffective assistance of appellate counsel.
1. Appellate Counsel‘s Failure to Raise Ineffective Assistance of
Trial Counsel Did not Constitute the Hiding of Ineffective
Assistance Claims
    ¶212 LDA attorneys represented Mr. Menzies both at trial and
on appeal. Strickland does not require counsel to raise ineffective
assistance of counsel claims on appeal where the same counsel
also represented the defendant at trial.188 Rather, both the
common law and the PCRA allow a petitioner who had the same
counsel on appeal and at trial to raise ineffective assistance claims
for the first time in post-conviction proceedings.189 We therefore
reject Mr. Menzies‘s argument that appellate counsel‘s failure to
raise possible Strickland claims against trial counsel constituted


   186 Ross v. State, 2012 UT 93, ¶ 44, 293 P.3d 345 (―And [a]s is the
case in challenges to the effectiveness of trial counsel, to prevail
on a claim of ineffective assistance of appellate counsel, a
petitioner must prove that appellate counsel‘s representation fell
below an objective standard of reasonable conduct and that the
deficient performance prejudiced [him].‖ (alterations in original)
(internal quotation marks omitted)).
   187Lafferty, 2007 UT 73, ¶ 48 (alteration in original) (internal
quotation marks omitted).
   188See Fernandez v. Cook, 783 P.2d 547, 550 (Utah 1989) (holding
that where a petitioner is represented by the same person on
appeal and at trial the petitioner may raise ineffective assistance
claims for the first time in post-conviction proceedings).
   189 Id.; UTAH CODE § 78B-9-104(1)(d) (―Unless precluded by
Section 78B-9-106 or 78B-9-107, a person . . . may file an action . . .
for post-conviction relief [on the] grounds [that] . . . the petitioner
had ineffective assistance of counsel in violation of the United
States Constitution or Utah Constitution . . . .‖).

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the hiding of ineffective assistance because appellate counsel was
under no obligation to raise Strickland claims against itself.
Appellate counsel cannot be held to have performed deficiently
by refusing to make an argument they were not legally required
to make.190 And because attorneys employed by LDA represented
Mr. Menzies at both trial and on appeal, appellate counsel was not
required to raise a claim that they, themselves, were ineffective.
Further, even if we were to characterize any potential ineffective
assistance claims against trial counsel as ―obvious,‖ Mr. Menzies
cannot show that he was prejudiced because he has been given
the opportunity in post-conviction proceedings to argue that his
trial counsel and appellate counsel rendered ineffective assistance.
For these reasons we reject Mr. Menzies‘s argument in this regard
and proceed to his remaining claims.
2. Mr. Menzies Has not Shown that Appellate Counsel Failed to
Conduct a Proper Appellate Investigation
    ¶213 We also reject Mr. Menzies‘s claim that appellate counsel
rendered ineffective assistance by failing to conduct a proper
appellate investigation. Mr. Menzies‘s brief on this point is
somewhat unclear, but the thrust of his argument is that appellate
counsel violated NLADA Standard 11.9.2(b)191 by failing to
(1) learn that Mr. Larrabee and Ms. Brown were engaged in sexual
activity, (2) investigate potential ineffective assistance claims
against trial counsel, (3) realize that they needed to either obtain
informed consent or withdraw from the case because of the
conflict of interest created by trial counsel seeking a liability
waiver from Mr. Menzies, and (4) interview Judge Uno regarding
his willingness to rescind the death sentence given to
Mr. Menzies.

   190 See Dunn, 850 P.2d at 1228 (holding that a petitioner‘s
ineffective assistance claim failed because there was no basis in
the law in effect at the time of the representation that would have
substantiated petitioner‘s substantive claim).
   191  This standard states the following: ―Appellate counsel
should interview the client, and trial counsel if possible, about the
case, including any relevant matters that do not appear in the
record. Counsel should consider whether any potential off-record
matters should have an impact on how the appeal is pursued, and
whether an investigation of any matter is warranted.‖ NLADA
STANDARDS FOR THE APPOINTMENT OF COUNSEL IN DEATH PENALTY
CASES 11.9.2(b) (1988).

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    ¶214 We have addressed above, supra ¶¶ 140–43,
Mr. Menzies‘s substantive arguments regarding the reason
Mr. Larrabee and Ms. Brown were distracted at the time they saw
Mr. Menzies at Storm Mountain. There we conclude that
Mr. Menzies‘s ineffective assistance claim against trial counsel
had no merit. Given this conclusion, it is necessarily the case that
the claim was not an obvious one such that appellate counsel
should have raised it on appeal. And even assuming that this
claim was obvious, Mr. Menzies does not argue—as he must in
order to prevail in an ineffective assistance of counsel claim—that
asserting this claim would have probably resulted in a reversal on
appeal.
    ¶215 Mr. Menzies‘s argument that appellate counsel should
have investigated potential ineffective assistance claims against
trial counsel is unfounded for reasons already stated.192 Appellate
counsel is under no obligation to raise its own ineffectiveness
where it also represented the defendant at trial.
    ¶216 Mr. Menzies also argues that trial counsel‘s conflict of
interest tainted appellate proceedings and that if appellate counsel
would have conducted a proper investigation they would have
learned that they needed to withdraw. We discuss Mr. Menzies‘s
conflict of interest claim above, supra ¶¶ 153–65, and conclude
that there was no conflict of interest because the liability waiver
did not create an actual conflict between counsel and Mr. Menzies
such that their interests were not aligned. Because there was no
conflict at trial, Mr. Menzies‘s argument that the conflict also
permeated the appeal must fail.
    ¶217 Lastly, to hold that appellate counsel rendered ineffective
assistance by not interviewing Judge Uno to determine whether
he was willing to rescind the death sentence would be an extreme
exercise of hindsight. There is no reasonable basis for concluding
that appellate counsel should have thought that Judge Uno might
be willing to rescind the death sentence he imposed on
Mr. Menzies. In fact, it seems quite unreasonable to expect
appellate lawyers to seek testimony from a trial judge admitting
that the judge erroneously imposed a sentence. Even assuming
that an interview of Judge Uno by Mr. Menzies‘s appellate
counsel would have produced this admission, any potential claim
based on the information was hardly obvious from the trial
record.


   192   Supra ¶ 212.

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   ¶218 We therefore affirm the PCC‘s holding that Mr. Menzies
has not raised a genuine issue of material fact as to each part of
the Strickland test regarding whether appellate counsel conducted
an appropriate appellate investigation.
3. Appellate Counsel‘s Failure to Raise a Challenge Regarding the
Reasonable Doubt Jury Instruction Did not Constitute Ineffective
Assistance Because the Instruction Conformed with Instructions
Upheld by the United States Supreme Court
   ¶219 Finally, Mr. Menzies argues that appellate counsel was
ineffective in failing to challenge the reasonable doubt instruction
given to the jury, which Mr. Menzies claims was unconstitutional.
The relevant part here instructed the jury that a ―reasonable
doubt‖ must be ―a real, substantial doubt, and not one that is
merely possible or imaginary.‖
   ¶220 In Cage v. Louisiana, the Supreme Court held
unconstitutional a jury instruction equating reasonable doubt
with ―grave uncertainty‖ and ―actual substantial doubt.‖193 The
Court noted that the words ―substantial‖ and ―grave‖ suggested a
―higher degree of doubt than is required for acquittal under the
reasonable-doubt standard.‖194 This is especially so, the Court
reasoned, when the words are considered with a ―reference to
moral certainty, rather than evidentiary certainty.‖195 The Court

   193  498 U.S. 39, 40–41 (1990) (The reasonable doubt instruction
in full read: ―If you entertain a reasonable doubt as to any fact or
element necessary to constitute the defendant‘s guilt, it is your
duty to give him the benefit of that doubt and return a verdict of
not guilty. Even where the evidence demonstrates a probability of
guilt, if it does not establish such guilt beyond a reasonable doubt,
you must acquit the accused. This doubt, however, must be a
reasonable one; that is one that is founded upon a real tangible
substantial basis and not upon mere caprice and conjecture. It
must be such doubt as would give rise to a grave uncertainty, raised in
your mind by reasons of the unsatisfactory character of the
evidence or lack thereof. A reasonable doubt is not a mere
possible doubt. It is an actual substantial doubt. It is a doubt that a
reasonable man can seriously entertain. What is required is not an
absolute or mathematical certainty, but a moral certainty.‖ (internal
quotation marks omitted)).
   194   Id. at 41.
   195   Id. (internal quotation marks omitted).

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                       Opinion of the Court
held in Sullivan v. Louisiana that jury instructions with errors like
those identified in Cage were structural errors.196
    ¶221 The Court later clarified in Victor v. Nebraska, however,
that not all definitions of reasonable doubt that use the words
―substantial doubt‖ are unconstitutional.197 Even though the
reasonable doubt instruction at issue in Victor used the words
―substantial doubt,‖ the Court approved of the instruction
because ―substantial doubt‖ was contrasted with terms like ―mere
possibility‖ and ―bare imagination.‖198 The Court noted that this
comparison made it clear that ―substantial‖ is ―used in the sense
of existence, rather than magnitude of the doubt.‖199 This satisfied
any concern that the jury would interpret the term ―substantial
doubt‖ to overstate the doubt necessary to acquit.200
    ¶222 The jury instruction at issue here defined reasonable
doubt as ―a real, substantial doubt, and not one that is merely
possible or imaginary.‖ In Carter v. Galetka, we held that a very
similar instruction was constitutional.201 The instruction there
stated as follows: ―[A] reasonable doubt must be a real,
substantial doubt and not one that is merely possible or
imaginary.‖202 The reasonable doubt instruction here, like the
instruction in Carter, compares a ―substantial doubt‖ with those
that are ―merely possible or imaginary.‖ Like Victor, the
comparison is in ―the sense of existence rather than magnitude of
the doubt.‖203 Any challenge raising the constitutionality of the
reasonable doubt instruction given in this case would have surely
failed for these reasons. It follows that it would have hardly been
obvious to appellate counsel to challenge the instruction. Further,
because the merits of the challenge would have been unsuccessful,
Mr. Menzies cannot make a sufficient showing that making the
claim would have probably resulted in reversal. For these reasons
we affirm the PCC‘s grant of summary judgment, since

   196   508 U.S. 275, 281–82 (1993).
   197   511 U.S. 1, 19–20 (1994).
   198   Id. at 20.
   199   Id.
   200   Id.
   201   2001 UT 96, ¶ 51, 44 P.3d 626.
   202   Id. (internal quotation marks omitted).
   203   Victor, 511 U.S. at 20.

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Mr. Menzies fails to raise any genuine issue of material fact
concerning counsel‘s failure to challenge the beyond a reasonable
doubt instruction.
4. Conclusion—Appellate Proceedings Ineffective Assistance of
Counsel
    ¶223 We conclude that appellate counsel did not render
ineffective assistance of counsel. Appellate counsel had no
obligation to raise ineffective assistance claims against themselves.
Counsel adequately investigated Mr. Menzies‘s case. And counsel
was not ineffective in failing to challenge the beyond reasonable
doubt instruction because the claim would have almost assuredly
failed. For these reasons we reject Mr. Menzies‘s claim that
appellate counsel provided ineffective assistance.
                            Conclusion
    ¶224 None of Mr. Menzies‘s claims have merit. We reject each
of his constitutional challenges to the PCRA and further conclude
that the PCC did not abuse its discretion in denying further
funding under the PCRA. We also reject each of his procedural
claims. First, rule 65C of the Utah Rules of Civil Procedure allows
the State to move for summary judgment rather than file an
answer. Second, the PCC‘s decision to deny his request for a rule
56(f) continuance was not an abuse of discretion. And third, the
PCC did not abuse its discretion in denying him an evidentiary
hearing before ruling on the cross-motions for summary
judgment. Finally, we conclude that each of his ineffective
assistance claims fail because he has not raised a genuine issue of
material fact concerning each prong of the Strickland test.
   ¶225 In sum, we affirm the PCC‘s order granting summary
judgment to the State and dismissing Mr. Menzies‘s petition for
post-conviction relief.




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