After misadvisin g Petitioner Taberon Honie to waive his right to capital sentencing by a jury, Mr. Honie's counsel later erroneously told him that it was too late to withdraw his waiver and, on that basis, refused his clie nt's request to do so. Under this Court's preceden t and the law of at least three circuits, the proper way to assess prejudice from counsel's indisputably deficient performance is to employ a process -based prejudice standard that evaluate s whether Mr. Honi e would have chosen a j ury for his sentencing —whic h, on the record here, he would have done .
Departing from those precedents, a divided Tenth Circuit upheld Utah's application of a substantive outcome -based prejudice standard —as opp osed to a proce ss-based prejudice test. The T enth Circuit joined three oth er circuits to widen a 3-4 split.
The question presented is:
When a capital defendant on federal habeas review challenges as ineffective his counsel's performance as it relates to the de fendant's waiver of a state statutory ri ght to a capital sentencing j ury, is the relevant prejudice inquiry whether there is a reasonable probability that the defendant would have chosen to proceed with a jury absent co unsel's error, or must the defendant prove th at the outcome of his sentencing would have been different ha d he been afforded a jury of his peers?

When a capital defendant on federal habeas review challenges as ineffective his counsel's performance as it relates to the defendant's waiver of a state statutory right to a capital sentencing jury, is the relevant prejudice inquiry whether there is a reasonable probability that the defendant would have chosen to proceed with a jury absent counsel's error, or must the defendant prove that the outcome of his sentencing would have been different had he been afforded a jury of his peers?