Ramirez, et al v. Ryan, et al, No. 2:1997cv01331 - Document 190 (D. Ariz. 2008)

Court Description: ORDER denying 177 Motion to Amend/Correct. FURTHER ORDERED that the following claims are DISMISSED WITH PREJUDICE: Claims 3, 4, 6, 9, 12, 15, 18- 26, and 28 on the merits; Claims 16, 27, and 29 as procedurally barred; and Claim 31 as not cognizable . FURTHER ORDERED that Claim 30 is DISMISSED WITHOUT PREJUDICE as premature and not yet ripe for review. FURTHER ORDERED that within thirty (30) days of the file date of this Order, Petitioner shall file a brief regarding the adequacy of Arizona Rule of Criminal Procedure 32.4(a) as a bar to federal review. FURTHER ORDERED that within thirty (30) days of the file date of Petitioner's brief, Respondents shall file a responsive brief. FURTHER ORDERED that if either party files a Motion for R econsideration of this Order, such motion shall be filed within fifteen (15) days of the filing of this Order. The filing and disposition of such motion shall not toll the time for the briefing schedule set forth above. FURTHER ORDERED that the Clerk forward a copy of this Order to Rachelle M. Resnick, Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329. Signed by Judge James A Teilborg on 12/12/08.(DNH)

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Ramirez, et al v. Ryan, et al 1 Doc. 190 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 David Martinez Ramirez, 9 Petitioner, 10 v. 11 12 13 Dora B. Schriro, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) No. CV 97-1331-PHX-JAT DEATH PENALTY CASE ORDER 14 Pending before the Court is Petitioner’s Motion for Leave to File Third Amended 15 and/or Supplemental Petition for Writ of Habeas Corpus. Petitioner seeks leave to add four 16 new claims to this action, which were recently adjudicated in state court. Because the claims 17 are outside the statute of limitations, the Court denies amendment. 18 Petitioner has twenty-one claims pending before the Court for which the pleadings are 19 complete; in addition, Claim 34 awaits briefing. Prior to the filing of motions for evidentiary 20 development, the Court finds it expedient to review the fully-briefed claims and, to the extent 21 no evidentiary development is required, resolve them. Based on that review, the Court 22 determines that Petitioner is not entitled to relief on any of the twenty-one briefed claims, 23 Claims 3, 4, 6, 9, 12, 15, 16, and 18-31. 24 FACTUAL AND PROCEDURAL BACKGROUND 25 Petitioner was convicted of two counts of premeditated first degree murder for the 26 deaths of Mary Ann Gortarez and her fifteen-year-old daughter Candie. This factual 27 summary is based on the Court’s review of the record and the Arizona Supreme Court’s 28 opinion upholding Petitioner’s convictions, State v. Ramirez, 178 Ariz. 116, 119-21, 871 Dockets.Justia.com 1 P.2d 237, 240-42 (1994). 2 On the evening and night of May 24, 1989, Petitioner was seen with Candie and Mary 3 Ann around the Gortarez’s apartment. As late as 3:30 a.m. the following morning, he was 4 seen talking with Mary Ann outside the apartment. Approximately ninety minutes later, 5 around 5:00 a.m., the Gortarez’s upstairs neighbors, Priscilla Arce, Kathy Arce, and Larry 6 Bernabe, awoke to screaming, banging, and running sounds from the Gortarez’s apartment. 7 Bernabe went downstairs and knocked at the door; no one answered but the sounds stopped. 8 Five minutes after returning to his apartment, he heard a slam against the wall and a loud 9 scream. Bernabe unsuccessfully tried to kick in the Gortarez’s apartment door; when he 10 looked in the rear window he saw a shadow moving in the hallway. 11 Pursuant to a 911 call by Bernabe, the police arrived a few minutes later, 12 approximately 5:36 a.m. No one responded to the police knock at the front door. Two 13 officers went to the back of the apartment, where they observed blood on a window frame 14 and latch. They saw Petitioner enter the bedroom and instructed him to go to the front door. 15 The officers heard rustling at the blinds of the other bedroom; Petitioner then re-entered the 16 first bedroom and was instructed to unlock the door. The officers in the rear radioed to the 17 officers up front that Petitioner was wearing suspenders; one officer noted that Petitioner was 18 Hispanic while the other stated that he was wearing a red shirt. 19 Officers at the front of the apartment obtained a key and entered through the front 20 door. They saw Mary Ann’s body on the living room floor. Petitioner approached the 21 officers, without a shirt on, covered in blood, and with cuts to the inside of his fingers. 22 Petitioner was removed from the apartment and restrained outside. An officer asked 23 Petitioner what was going on, to which he replied, “We had a big fight.” When asked who 24 was inside and if anyone else was hurt, Petitioner responded, “My girlfriend and her 25 daughter,” and “they’re hurt pretty bad. We’re all hurt pretty bad.” While being escorted 26 to a police car, Petitioner volunteered, “You can ask anyone, me and my girlfriend are very 27 close, we’re going to get married.” Petitioner appeared to be intoxicated. 28 -2- 1 The officers performed a sweep of the apartment, looking for a guy with a red shirt 2 and/or suspenders. No other men were found in the apartment. Candie’s body was found 3 naked in one of the bedrooms. There was blood throughout the entire apartment. A knife 4 blade was found in the front hall, a cake knife was found near Mary Ann’s arm, part of the 5 cake knife handle and a handle matching the blade found in the hall was in her hair, a pair 6 of bloody scissors was found in the bathroom, and in a rear hallway lay a blood-soaked box 7 cutter. Blood-stained suspenders and a man’s white blood-stained shirt were found in the 8 apartment. 9 Mary Ann had been stabbed eighteen times in the neck, and in the back and knee, and 10 she had defensive wounds on her hand and forearms. Her daughter had been stabbed fifteen 11 times in the neck. Vaginal swabs taken from Candie tested positive for semen; Petitioner 12 could not be excluded as the donor of the semen. 13 At sentencing, the judge found three aggravating circumstances: Petitioner had two 14 prior violent felony convictions (A.R.S. § 13-703(F)(2)); Petitioner committed the murders 15 in an especially cruel, heinous, or depraved manner (A.R.S. § 13-703 (F)(6)); and Petitioner 16 committed multiple homicides during the same episode (A.R.S. § 13-703(F)(8)). The 17 sentencing judge found one statutory mitigating circumstance and seven non-statutory 18 circumstances, but determined that they were not sufficiently substantial to warrant leniency. 19 The court sentenced Petitioner to death on both murder counts. 20 The Arizona Supreme Court affirmed Petitioner’s convictions and sentences on direct 21 appeal. Ramirez, 178 Ariz. 116, 871 P.2d 237. Petitioner sought reconsideration of the 22 supreme court’s opinion, which was denied. Petitioner filed a Petition for Post-conviction 23 Relief (PCR) with the trial court, which was denied in its entirety in a ruling filed on 24 February 20, 1996. On May 20, 1997, the Arizona Supreme Court summarily denied review 25 of that decision. 26 On June 26, 1997, Petitioner filed his initial petition in this Court, and the Court 27 28 -3- 1 appointed counsel. (Dkts. 1, 2.)1 After briefing, the Court issued a ruling on the procedural 2 status of the twelve claims raised in the amended petition, dismissing all except portions of 3 Claims 1 and 2. (Dkt. 26.) Due to concerns regarding the quality of representation provided 4 by Petitioner’s CJA-appointed habeas counsel, the Court substituted the Federal Public 5 Defender (FPD) as counsel and allowed Petitioner to file a motion to amend. Specifically, 6 on February 16, 2001, the FPD was granted leave to review the record; on March 25, 2002, 7 the FPD was officially appointed as counsel; and on November 26, 2003, the FPD sought to 8 file a supplemental petition alleging additional claims and a supplemental traverse on behalf 9 of Petitioner. (Dkts. 40, 55, 76.) The Court allowed the supplements in entirety, and 10 reconsidered its procedural rulings based on arguments made by Petitioner’s new counsel. 11 (Dkt. 83.) 12 The parties briefed the procedural status and/or the merits of the remaining claims. 13 (Dkts. 90, 97, 103, 110.) The Court subsequently granted a stay of the sentencing claims, to 14 allow Petitioner to seek relief from his death sentence in state court based on a claim of 15 mental retardation pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). (Dkt. 119.) During 16 the stay, the Court issued a ruling denying evidentiary development and dismissing 17 Petitioner’s conviction claims. (Dkt. 140.) 18 After the FPD filed a notice of PCR in state court regarding the Atkins claim, private 19 counsel filed a separate successive PCR notice raising five additional claims. When those 20 five claims had been exhausted in state court, the FPD sought to amend the petition to 21 include them in this Court. (Dkt. 145.) The Court granted amendment only as to Claim 34 22 (Dkt. 158); Petitioner filed a second amended petition incorporating that claim (Dkt. 162). 23 Petitioner now seeks amendment to add claims raised in his Atkins PCR proceeding. 24 MOTION TO AMEND 25 Petitioner seeks to amend his second amended petition to add four claims litigated in 26 his recently-completed PCR proceeding, all of which are connected to his Atkins claim and 27 28 1 “Dkt.” refers to the documents in this Court’s case file. -4- 1 the procedures used by the state court to adjudicate that claim. Proposed Claim 37 alleges 2 that Petitioner’s rights to due process, equal protection, a jury trial, and to be free of cruel and 3 unusual punishment were violated by the state court’s use of a clear and convincing standard 4 of proof for retardation and the denial of a jury determination on retardation. Proposed 5 Claim 38 alleges that Petitioner cannot be executed pursuant to Atkins because he is mentally 6 retarded and that the PCR court’s procedures violated due process, the right to a fair trial, and 7 the right to be free from cruel and unusual punishment. Proposed Claim 39 alleges that the 8 PCR court violated Petitioner’s right to confrontation, due process, and a reliable Atkins 9 determination. Proposed Claim 40 alleges that the PCR court erred in denying disclosure of 10 Petitioner’s sister’s social security records for use in Petitioner’s Atkins proceeding. 11 Standard for Amendment 12 A petition for habeas corpus may be amended pursuant to the Federal Rules of Civil 13 Procedure. 28 U.S.C. § 2242; see also Rule 11, Rules Governing § 2254 Cases, 28 U.S.C. 14 foll. § 2254 (providing that the Federal Rules of Civil Procedure may be applied to habeas 15 petitions to the extent they are not inconsistent with the habeas rules). Thus, the Court looks 16 to Rule 15 of the Federal Rules of Civil Procedure to address a party’s motion to amend a 17 pleading in a habeas corpus action. See James v. Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001). 18 Leave to amend shall be freely given “when justice so requires,” Fed. R. Civ. P. 15(a), and 19 courts must review motions to amend in light of the strong policy permitting amendment. 20 Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir. 1986). The factors 21 which may justify denying a motion to amend are undue delay, bad faith or dilatory motive, 22 futility of amendment, undue prejudice to the opposing party, and whether petitioner has 23 previously amended. Foman v. Davis, 371 U.S. 178, 182 (1962); Bonin v. Calderon, 59 F.3d 24 815, 845 (9th Cir. 1995). 25 Leave to amend may be denied based upon futility alone. See Bonin, 59 F.3d at 845. 26 To assess futility, a court necessarily evaluates whether relief may be available on the merits 27 of the proposed claim. See Caswell v. Calderon, 363 F.3d 832, 837-39 (9th Cir. 2004) 28 -5- 1 (conducting a two-part futility analysis reviewing both exhaustion of state court remedies and 2 the merits of the proposed claim). If proposed claims are untimely, unexhausted, or 3 otherwise fail as a matter of law, amendment should be denied as futile. 4 Analysis 5 Respondents asserted lack of timeliness regarding these claims in prior filings relating 6 to the propriety of staying the case while Petitioner pursued the claims in state court. In light 7 of that notice, the Court instructed Petitioner to address the statute of limitations and any 8 equitable tolling arguments in the instant motion to amend. If the claims are untimely then 9 amendment would be futile; therefore, the Court first examines the statute of limitations, 10 equitable tolling, and whether Petitioner’s proposed amendments relate back to previously 11 pleaded claims. 12 Statute of Limitations 13 Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 14 U.S.C. § 2254, a one-year statute of limitations applies to petitions for writ of habeas corpus 15 by state prisoners. See 28 U.S.C. § 2244(d)(1). Petitioner does not contend that the proposed 16 amendment comes within the initial one-year limitations period that runs from the date 17 judgment became final or within one year of the Atkins 2002 decision that first recognized 18 an Eighth Amendment prohibition on sentencing the mentally retarded to execution. See 28 19 U.S.C. § 2244(d)(1)(A) & (C). 20 Rather, Petitioner argues that he satisfies the one-year limitations period measured 21 from “the date on which the factual predicate of the claim or claims presented could have 22 been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). The 23 Supreme Court holds that “diligence can be shown by prompt action on the part of the 24 petitioner as soon as he is in a position to realize that he has an interest” in developing a 25 possible avenue for relief. Johnson v. United States, 544 U.S. 295, 308, 310 (2005) (finding 26 defendant not diligent because he delayed three years in seeking to have a state court 27 conviction vacated after it was used to enhance his federal sentence). By way of example, 28 -6- 1 the Court noted that a defendant would have to seek DNA testing with reasonable 2 promptness, once available, if a new one-year limitations period is to be triggered by the 3 “discovery” of the test result. Id. at 310. 4 Johnson is squarely on point – at the time Atkins was decided in June 2002, Petitioner 5 and his counsel were on notice that mental retardation, if present, would provide a basis for 6 overturning Petitioner’s death sentence. Petitioner did not act promptly in conducting the 7 investigation necessary to assess whether he might be entitled to relief based on that decision. 8 Counsel first scheduled a contact visit on June 11, 2002, between Petitioner and psychologist 9 Ricardo Weinstein, who eventually opined that Petitioner was mentally retarded (Dkt. 106, 10 Ex. 1). Counsel has not provided any reason why Dr. Weinstein’s evaluations were not 11 completed until 2004. The fact that counsel was not aware of Petitioner’s mental retardation 12 until 2004 when the doctor completed his evaluation does not satisfy their obligation to have 13 acted diligently in obtaining that information.2 14 Additionally, in addressing relation back, Petitioner argues that “the core operative 15 facts upon which [the Atkins] claim was based already existed” at the time of the original 16 March 10, 1998 petition. (Dkt. 176 at 5.) Specifically, Petitioner contends that he has 17 argued from the beginning of this habeas proceeding that he had mental impairments that 18 19 20 21 22 23 24 25 26 27 28 2 To the extent Petitioner relies on prior statements by this Court to bolster his argument that he acted diligently in pursuing his Atkins claim, the Court does not find them persuasive because the context and governing law are distinct. In assessing whether the Court should exercise its discretion to grant a stay, the Court noted that Petitioner had reason not to have included an Atkins claim in a prior petition because he only received the doctor’s report on which the claim was based in December 2004. (Dkt. 119 at 3-4.) More significantly, the Court noted that, even if Petitioner had delayed pursuing the claim, a stay was warranted because delay would not clearly bar him from obtaining relief in state court. (Id. at 4.) Similarly, in a subsequent order, the Court denied reconsideration of the stay, again noting that the Atkins claim could not have been included in the original petition and declining to find that Petitioner lacked good cause for not filing sooner. (Dkt. 126 at 1-2.) Finally, in a later order, the Court explicitly declined to decide whether, if Petitioner sought amendment, Petitioner’s Atkins claim would satisfy the statute of limitations in light of the decision in Mayle v. Felix, 545 U.S. 644, 657 (2005) (narrowing the relation-back doctrine in habeas proceedings). (Dkt. 138 at 1.) -7- 1 required additional investigation. That mental health investigation led to the expert opinion 2 that Petitioner was mentally retarded; in light of Petitioner’s representation, the investigation 3 could have begun years earlier. 4 Petitioner was not diligent in discovering the factual predicate for the Atkins claim; 5 therefore, it falls outside the statute of limitations. Similarly, because action by Petitioner 6 (initiating the PCR proceeding to assert an Atkins claim) was a critical step in generating the 7 factual basis for his related procedural claims, he must have acted reasonably promptly in 8 initiating that proceeding. See Johnson, 544 U.S. at 310. As the Court concluded above, he 9 did not do so; therefore, Claims 37, 39, and 40, as well as the remainder of Claim 38 are 10 outside the statute of limitations. 11 Equitable Tolling 12 Petitioner contends he is entitled to equitable tolling of the statute of limitations. The 13 Supreme Court has assumed without deciding that the AEDPA’s statute of limitations can 14 be equitably tolled. Lawrence v. Florida, 549 U.S. 327, ___, 127 S. Ct. 1079, 1085 (2007); 15 Pace v. DiGuglielmo, 544 U.S. 408, 418 n.8 (2005). Citing the standard for equitable tolling 16 set forth in Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990), the Court observed 17 that a litigant generally “bears the burden of establishing two elements: (1) that he has been 18 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 19 way.” Pace, 544 U.S. at 418. In turn, the Ninth Circuit holds that the limitations period may 20 be equitably tolled “if extraordinary circumstances beyond a prisoner’s control make it 21 impossible to file a petition on time.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) 22 (quoting Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en 23 banc), abrogated on other grounds by Woodford v. Garceau, 538 U.S. 202 (2003)). 24 The Court finds that Petitioner is not entitled to equitable tolling of the statute of 25 limitations. First, as discussed above, Petitioner did not act diligently in investigating 26 whether he had a claim based on mental retardation. Second, Petitioner has not established 27 that an extraordinary circumstance prevented him from timely filing these claims. Petitioner 28 -8- 1 initiated this action within the limitations period and has been represented by counsel for the 2 entirety of his federal habeas proceeding, including a change of counsel to ensure adequate 3 representation. Cf. Laws v. LaMarque, 351 F.3d 919, 922-23 (9th Cir. 2003) (pro se 4 petitioner’s mental incompetence prevented him from filing an initial petition by the one-year 5 deadline). 6 The Court further finds that Petitioner’s specific arguments in support of equitable 7 tolling are lacking. First, Petitioner asserts that his mental retardation is an extraordinary 8 circumstance, but no counsel has ever indicated, and Petitioner has not made a showing, that 9 his alleged mental deficiencies interfered with counsel’s ability to timely raise any claims. 10 Petitioner also alleges he is innocent of the death penalty; however, there is no recognized 11 exception in the Ninth Circuit to the statute of limitations for “innocence of the death 12 penalty.” Finally, Petitioner asserts that Atkins is an extraordinary legal development that 13 was decided after Petitioner’s habeas proceeding; however, new caselaw is not extraordinary 14 – the statute of limitations provides for exactly such an occurrence, allowing one year from 15 the newly recognized right to raise the claim. 28 U.S.C. § 2244(d)(1)(C). To the extent 16 equitable tolling exists, the Court finds that Petitioner is not entitled to it under the present 17 circumstances. 18 Relation Back 19 Petitioner’s primary argument for timeliness is that the proposed claims relate back 20 to timely claims raised in his prior petitions. Federal Rule of Civil Procedure 15 provides, 21 in relevant part, that an amended pleading “relates back to the date of the original pleading 22 when . . . (2) the claim or defense asserted in the amended pleading arose out of the conduct, 23 transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Fed. 24 R. Civ. P. 15(c)(2). Amended habeas claims relate back to timely habeas claims when they 25 are “tied to a common core of operative facts”; they do not relate back if they arise out of 26 “events separate in ‘both time and type’ from the originally raised episodes.” Mayle v. Felix, 27 545 U.S. 644, 657 (2005) (rejecting broad construction which equated “conduct, transaction, 28 -9- 1 or occurrence” with trial, conviction, or sentence). 2 Petitioner alleges that his proposed claims relate back to Claims 8 and 12 of his 3 original amended petition.3 Claim 8 alleges ineffective assistance of counsel (IAC) based, 4 in part, on counsel’s failure to investigate Petitioner’s mental condition as a mitigating factor, 5 including his competency, the possibility of mental illness, and funding for a psychologist. 6 Claim 12 alleges that the trial court erred in denying funds for experts to assist in preparation 7 for trial and sentencing. 8 Petitioner’s Atkins claim (Claim 38) is not premised on attorney error or court error, 9 but rather a constitutional prohibition on executing mentally retarded individuals. While 10 proof that Petitioner is mentally retarded could have been offered as mitigation at sentencing 11 and, therefore, is reasonably part of his IAC-at-sentencing claim, the Atkins claim is not 12 based on attorney error. Similarly, while Claim 12 alleges the trial court erred in not funding 13 adequate experts who might have discovered the mental retardation, the Atkins claim does 14 not allege court error or inadequate investigation. Thus, the claim is distinct in both type and 15 time from Claims 8 and 12. Felix instructs that the “occurrence” relative to a specific claim 16 requires assessing the essential predicate for the claim and the facts dispositive to resolution 17 of the claim. 545 U.S. at 661 (finding the essential predicate for a self-incrimination claim 18 to be the defendant’s conduct during the police interrogation not the fact of the statements 19 admission at trial). The essential predicate for Petitioner’s Atkins claim is whether he is 20 below the requisite intelligence level and has “significant impairment in adaptive behavior,” 21 and whether these conditions were manifest before he turned eighteen. A.R.S. § 13- 22 23 24 25 26 27 28 3 In his reply brief, Petitioner argues that his claims also relate back to Claim 34 – alleging ineffective assistance of counsel at sentencing. The Court granted amendment to add Claim 34, which was untimely, because it found that it related back to Claim 8; the Court will not assess whether the new Atkins claim relates back to an untimely claim, saved only by its relation back to another claim. Rather, the Court assesses whether the new claim relates back to the original timely claim (Claim 8). Further, for the same reasons the Court determines that the new claims do not relate back to Claim 8, they would fail to relate back to Claim 34. - 10 - 1 703.02(K)(3); Atkins, 536 U.S. at 317. These facts are clearly distinct from error by his 2 counsel in preparation for and presentation at sentencing, and from pre-trial error by the 3 court. Therefore, Petitioner’s Atkins claim does not relate back to a timely-filed claim. 4 The Atkins-related procedural claims arise out of the rules governing mental 5 retardation proceedings in Arizona as applied by the PCR court, including the burden of 6 proof, the non-jury format, the expert qualifications and evaluations, the court’s alleged 7 statutory and scientific errors, the court’s alleged erroneous consideration of testimony, and 8 the court’s denial of discovery. As pleaded by Petitioner, the facts underlying these claims 9 are the events during the most recent PCR proceeding as well as the governing statutes and 10 rules. These facts are distinct in type and time from counsel error prior to and at sentencing, 11 and from pre-trial court error. Therefore, these claims do not relate back to a timely-filed 12 claim. 13 Supplemental Claims 14 Petitioner requests, in the alternative, that Claims 37-40 be added as supplemental 15 claims, which he argues do not need to stem from the same occurrence as a claim in a prior 16 petition. While Petitioner is correct that supplemental claims do not have to arise from the 17 same conduct as the allegations in a prior pleading; however, if they do not, then they must 18 satisfy the statute of limitations. See United States ex rel. Wulff v. CMA, Inc., 890 F.2d 1070, 19 1073 (9th Cir. 1989) (noting that calling a subsequent pleading amended versus supplemental 20 is “immaterial” because relation-back principle was applicable to both types of pleadings); 21 William Inglis & Sons Baking Co. v. ITT Continental Baking Co, Inc., 668 F.2d 1014, 1057 22 (9th Cir. 1981) (when “claims are unrelated to those alleged in the initial complaint, or rely 23 on conduct or events different from those involved in the original action, the statute of 24 limitations should be applied.”); Security Ins. Co. of New Haven, Conn. v. United States ex 25 rel. Haydis, 338 F.2d 444, 449 (9th Cir. 1964) (holding that the relation back doctrine can 26 be applied to supplemental claims that fall outside the statute of limitations). As addressed 27 above, Petitioner’s newly-alleged claims fall outside the statute of limitations and do not 28 - 11 - 1 relate back to timely-filed claims; therefore, they cannot be added as supplemental claims. 2 Conclusion 3 Petitioner’s four proposed claims, Claims 37-40, are outside the limitations period, 4 he is not entitled to equitable tolling, and the claims do not relate back to timely claims in a 5 prior petition. Therefore, his claims are untimely and amendment or supplementation to add 6 them is futile. Petitioner’s motion to amend is denied. 7 MERITS ANALYSIS 8 The Court now turns to the pending briefed claims, Claims 3, 4, 6, 9, 12, 15, 16, and 9 18-31 and concludes that none warrant evidentiary development because they are 10 procedurally defaulted, are record-based, do not involve a factual dispute or are purely legal, 11 and/or the facts as alleged do not entitle Petitioner to relief. 12 Principles of Exhaustion and Procedural Default 13 Under the AEDPA, a writ of habeas corpus cannot be granted unless it appears that 14 the petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see 15 also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). 16 To exhaust state remedies, a petitioner must “fairly present” the operative facts and the 17 federal legal theory of his claims to the state’s highest court in a procedurally appropriate 18 manner. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Anderson v. Harless, 459 U.S. 19 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971). If a habeas claim includes new 20 factual allegations not presented to the state court, it may be considered unexhausted if the 21 new facts “fundamentally alter” the legal claim presented and considered in state court. 22 Vasquez v. Hillery, 474 U.S. 254, 260 (1986). 23 In Arizona, there are two primary procedurally appropriate avenues for petitioners to 24 exhaust federal constitutional claims: direct appeal and post-conviction relief proceedings. 25 Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings and provides 26 that a petitioner is precluded from relief on any claim that could have been raised on appeal 27 or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3). The preclusive effect of Rule 28 - 12 - 1 32.2(a) may be avoided only if a claim falls within certain exceptions (subsections (d) 2 through (h) of Rule 32.1) and the petitioner can justify why the claim was omitted from a 3 prior petition or not presented in a timely manner. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(b), 4 32.4(a). 5 A habeas petitioner’s claims may be precluded from federal review in two ways. 6 First, a claim may be procedurally defaulted in federal court if it was actually raised in state 7 court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. 8 at 729-30. Second, a claim may be procedurally defaulted if the petitioner failed to present 9 it in state court and “the court to which the petitioner would be required to present his claims 10 in order to meet the exhaustion requirement would now find the claims procedurally barred.” 11 Id. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (stating that the 12 district court must consider whether the claim could be pursued by any presently available 13 state remedy). If no remedies are currently available pursuant to Rule 32, the claim is 14 “technically” exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1; see 15 also Gray v. Netherland, 518 U.S. 152, 161-62 (1996). 16 Because the doctrine of procedural default is based on comity, not jurisdiction, federal 17 courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 18 468 U.S. 1, 9 (1984). As a general matter, the Court will not review the merits of a 19 procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the failure 20 to properly exhaust the claim in state court and prejudice from the alleged constitutional 21 violation, or shows that a fundamental miscarriage of justice would result if the claim were 22 not heard on the merits in federal court. Coleman, 501 U.S. at 750. 23 Ordinarily “cause” to excuse a default exists if a petitioner can demonstrate that “some 24 objective factor external to the defense impeded counsel’s efforts to comply with the State’s 25 procedural rule.” Id. at 753. Objective factors which constitute cause include interference 26 by officials which makes compliance with the state’s procedural rule impracticable, a 27 showing that the factual or legal basis for a claim was not reasonably available, and 28 - 13 - 1 constitutionally ineffective assistance of counsel. Murray v. Carrier, 477 U.S. 478, 488 2 (1986). There are two types of claims recognized under the fundamental miscarriage of 3 justice exception to procedural default: (1) that a petitioner is “innocent of the death 4 sentence,” – in other words, that the death sentence was erroneously imposed; and (2) that 5 a petitioner is innocent of the capital crime. 6 Legal Standard for Relief Under the AEDPA 7 The AEDPA established a “substantially higher threshold for habeas relief” with the 8 “acknowledged purpose of ‘reducing delays in the execution of state and federal criminal 9 sentences.’” Schriro v. Landrigan, 550 U.S. 465, ___, 127 S. Ct. 1933, 1939-40 (2007) 10 (quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003)). The AEDPA’s “‘highly 11 deferential standard for evaluating state-court rulings’ . . . demands that state-court decisions 12 be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per 13 curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). 14 15 16 17 18 Under the AEDPA, a petitioner is not entitled to habeas relief on any claim “adjudicated on the merits” by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 19 28 U.S.C. § 2254(d). The relevant state court decision is the last reasoned state decision 20 regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. 21 Nunnemaker, 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 22 (9th Cir. 2005). 23 “The threshold question under AEDPA is whether [the petitioner] seeks to apply a rule 24 of law that was clearly established at the time his state-court conviction became final.” 25 Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under subsection 26 (d)(1), the Court must first identify the “clearly established Federal law,” if any, that governs 27 the sufficiency of the claims on habeas review. “Clearly established” federal law consists 28 - 14 - 1 of the holdings of the Supreme Court at the time the petitioner’s state court conviction 2 became final. Williams, 529 U.S. at 365; see Carey v. Musladin, 549 U.S. 70, 74 (2006); 3 Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). Habeas relief cannot be granted if 4 the Supreme Court has not “broken sufficient legal ground” on a constitutional principle 5 advanced by a petitioner, even if lower federal courts have decided the issue. Williams, 529 6 U.S. at 381; see Musladin, 549 U.S. at 77; Casey v. Moore, 386 F.3d 896, 907 (9th Cir. 7 2004). Nevertheless, while only Supreme Court authority is binding, circuit court precedent 8 may be “persuasive” in determining what law is clearly established and whether a state court 9 applied that law unreasonably. Clark, 331 F.3d at 1069. 10 The Supreme Court has provided guidance in applying each prong of § 2254(d)(1). 11 The Court has explained that a state court decision is “contrary to” the Supreme Court’s 12 clearly established precedents if the decision applies a rule that contradicts the governing law 13 set forth in those precedents, thereby reaching a conclusion opposite to that reached by the 14 Supreme Court on a matter of law, or if it confronts a set of facts that is materially 15 indistinguishable from a decision of the Supreme Court but reaches a different result. 16 Williams, 529 U.S. at 405-06; see Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). In 17 characterizing the claims subject to analysis under the “contrary to” prong, the Court has 18 observed that “a run-of-the-mill state-court decision applying the correct legal rule to the 19 facts of the prisoner’s case would not fit comfortably within § 2254(d)(1)’s ‘contrary to’ 20 clause.” Williams, 529 U.S. at 406; see Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 21 2004). 22 Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court 23 may grant relief where a state court “identifies the correct governing legal rule from [the 24 Supreme] Court’s cases but unreasonably applies it to the facts of the particular . . . case” or 25 “unreasonably extends a legal principle from [Supreme Court] precedent to a new context 26 where it should not apply or unreasonably refuses to extend that principle to a new context 27 where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state court’s 28 - 15 - 1 application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner 2 must show that the state court’s decision was not merely incorrect or erroneous, but 3 “objectively unreasonable.” Id. at 409; Landrigan, 127 S. Ct. at 1939; Visciotti, 537 U.S. at 4 25. 5 Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state 6 court decision was based upon an unreasonable determination of the facts. Miller-El v. 7 Dretke, 545 U.S. 231, 240 (2005) (Miller-El II). A state court decision “based on a factual 8 determination will not be overturned on factual grounds unless objectively unreasonable in 9 light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 10 322, 340 (2003) (Miller-El I); see Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). In 11 considering a challenge under § 2254(d)(2), state court factual determinations are presumed 12 to be correct, and a petitioner bears the “burden of rebutting this presumption by clear and 13 convincing evidence.” 28 U.S.C. § 2254(e)(1); Landrigan, 127 S. Ct. at 1939-40; Miller-El 14 II, 545 U.S. at 240. 15 Analysis 16 Claim 3 17 Petitioner alleges that the trial court failed to conduct a proper cumulative weighing 18 of the mitigating evidence;4 if the court had done so, Petitioner argues, he would not have 19 been sentenced to death because the mitigating factors found by the court were sufficient for 20 leniency.5 21 22 23 24 4 Petitioner also alleged error by the Arizona Supreme Court as part of this claim; however, the Court previously determined that portion of the claim was procedurally defaulted. (Dkt. 83 at 18-19.) 5 25 26 27 28 In his reply brief on the merits of this claim, Petitioner attempts to turn this claim into one based on Tennard v. Dretke, 542 U.S. 274, 289 (2004) (holding that sentencing courts may not be prohibited from considering mitigating evidence because it does not have a nexus to the crime). The claim was not framed this way in the amended petition (Dkt. 18 at 21-22) or the merits brief (Dkt. 90 at 38-40); therefore, it is improperly raised in the reply brief to which Respondents have had no opportunity to respond. See Rule 2, Rules - 16 - 1 First, Petitioner’s factual contention that the sentencing judge did not properly 2 consider or cumulatively weigh his mitigation is refuted by the record. After finding one 3 statutory mitigating circumstance, the sentencing judge stated that it considered “nonstatutory 4 mitigating circumstances, including ‘any aspect of the Defendant’s character, propensities 5 or record and any of the circumstances of the offense.’” (RT 12/18/90 at 11.)6 Subsequently, 6 the judge stated that he assessed the mitigation individually and collectively in determining 7 whether it was sufficiently substantial to call for leniency. (Id. at 13.) 8 Second, there is no law to support Petitioner’s request for relief based on how the trial 9 court weighed the aggravation and mitigation. The Supreme Court holds that once a court 10 determines that a person is eligible for the death penalty, the sentencer must then consider 11 relevant mitigating evidence, allowing for “an individualized determination on the basis of 12 the character of the individual and the circumstances of the crime.” Tuilaepa v. California, 13 512 U.S. 967, 972 (1994). If these two criteria are met – there is a rational criteria for 14 eligibility and no limitation on consideration of relevant circumstances that could mitigate 15 against a death sentence – “the States enjoy their traditional latitude to prescribe the method 16 by which those who commit murder shall be punished.” Romano v. Oklahoma, 512 U.S. 1, 17 18 19 20 21 22 23 24 25 26 27 28 Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring all grounds for relief to be included in the petition); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994) (noting that claims must be raised in the petition so the State can respond). Additionally, neither the trial court (RT 12/18/90 at 10-13) nor the Arizona Supreme Court, Ramirez, 178 Ariz. at 13132, 871 P.2d at 252-53, precluded consideration of any mitigating evidence because it lacked a causal connection to the crime; to the contrary, the courts both expressly stated that they considered all the mitigating factors presented that were proven by a preponderance of the evidence. 6 “RT” refers to reporter’s transcript from Petitioner’s state court proceedings. “ROA” refers to the docket numbers from the four-volume record on appeal from postconviction proceedings prepared for Petitioner’s petition for review to the Arizona Supreme Court (Case No. CR-96-0464-PC). “SCT-DOC” refers to the Arizona Supreme Court’s docket numbers from Petitioner’s direct appeal (Case No. CR 90-359-AP). The state court original reporter’s transcripts and certified copies of the trial and post-conviction records were provided to this Court by the Arizona Supreme Court on July 30, 2001. (Dkt. 53.) - 17 - 1 7 (2004) (quoting Blystone v. Pennsylvania, 494 U.S. 299, 309 (1990)). Once eligibility for 2 the death penalty is determined, the sentencer “may be given ‘unbridled discretion in 3 determining whether the death penalty should be imposed.’” Tuilaepa, 512 U.S. at 979 4 (quoting Zant v. Stephens, 462 U.S. 862, 875 (1983)). In sum, giving a sentencer “discretion 5 to evaluate and weigh the circumstances relevant to the particular defendant and the crime 6 he committed” is not unconstitutional. Id. (quoting McCleskey v. Kemp, 481 U.S. 279, 315 7 n.37 (1987)). 8 Claim 3 is without merit and is dismissed. 9 Claim 4 10 Petitioner alleges the Arizona Supreme Court erred by rejecting consideration of his 11 excellent prison work record as mitigation.7 Specifically, Petitioner contends his prison work 12 record was mitigating independent of whether he was a model inmate overall. 13 In his sentencing memorandum, Petitioner set forth an overview of his experiences 14 in the prison system beginning in 1979. (ROA 149 at 10-17.) Based on that history, 15 Petitioner argued that his overall record while incarcerated, although less than perfect, 16 demonstrated that he could make a positive contribution to his fellow prisoners and the 17 prison authorities if given a life sentence. (Id. at 17-18.) Petitioner attached numerous 18 records from the department of corrections as exhibits to his sentencing memorandum. (Id. 19 at 10-17; RT 10/19/90 at 116.) During the aggravation/mitigation hearing, Petitioner 20 presented two correctional officers who testified that he did an excellent job working in the 21 prison kitchen, including the officers’ dining room. (RT 11/30/90 at 4-27.) During 22 subsequent argument, counsel argued that Petitioner “does very well in a structured 23 environment,” and that he had “potential to live out a life sentence and be a useful inmate and 24 be of assistance to the Department of Corrections.” (RT 12/7/90 at 8.) The trial court found 25 26 7 27 28 Petitioner also alleged that the Arizona Supreme Court erred in rejecting remorse as a mitigating factor; however, the Court previously determined that this portion of the claim was procedurally defaulted. (Dkt. 83 at 18-19.) - 18 - 1 that Petitioner had not proven by a preponderance that he had an excellent prison record 2 because, although his work record was very good, “his overall performance as an inmate has 3 been poor, as is evidenced by his escape conviction in CR-128529 and his going AWOL and 4 being written up on several occasions, as outlined in the presentence report in this case and 5 the report filed in CR-128529.” (RT 12/18/90 at 13; ROA 169 at 10.) 6 Petitioner did not raise a claim on direct appeal regarding his prison record as a 7 mitigating factor. (See Appellant’s Opening Br.) In conducting its independent review of 8 Petitioner’s sentence based on the record, the Arizona Supreme Court agreed with the trial 9 court and found that Petitioner had not proven by a preponderance of the evidence that he 10 had an excellent prison record. Ramirez, 178 Ariz. at 132, 871 P.2d at 253. When Petitioner 11 raised the allegations of Claim 4 in a motion for reconsideration, the Arizona Supreme Court 12 summarily denied it. (SCT-DOC 44.) 13 A sentencing court is required to consider any mitigation offered by a defendant, 14 including non-statutory mitigation. See Lockett v. Ohio, 438 U.S. 586, 604 (1978); see also 15 Ceja v. Stewart, 97 F.3d 1246, 1251 (9th Cir. 1996). In Lockett and subsequently in Eddings 16 v. Oklahoma, the Supreme Court held that under the Eighth and Fourteenth Amendments the 17 sentencer must be allowed to consider, and may not refuse to consider, any constitutionally 18 relevant mitigating evidence. 19 Constitutionally relevant mitigating evidence is “any aspect of a defendant’s character or 20 record and any of the circumstances of the offense that the defendant proffers as a basis for 21 a sentence less than death.” Lockett, 438 U.S. at 604. However, while the sentencer must 22 not be foreclosed from considering relevant mitigation, “it is free to assess how much weight 23 to assign such evidence.” Ortiz v. Stewart, 149 F.3d 923, 943 (9th Cir. 1998); see Eddings, 24 455 U.S. at 114-15 (“The sentencer . . . may determine the weight to be given the relevant 25 mitigating evidence.”). Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982). 26 There is no federal constitutional or factual foundation for Petitioner’s assertion that 27 the Arizona Supreme Court erred in failing to weigh in mitigation a subpart of one of the 28 - 19 - 1 mitigating factors he alleged (Petitioner’s prison work record as distinct from his overall 2 prison record). The record on appeal, as reviewed by the Arizona Supreme Court, included 3 Petitioner’s assertion that his prison record as a whole was a mitigating factor demonstrating 4 that he could be a good inmate if given a life sentence. It also included Petitioner’s 5 sentencing memorandum, in which he acknowledged that he had an escape conviction as 6 well as disciplinary infractions while incarcerated. The Arizona Supreme Court considered 7 the entirety of the mitigating evidence proffered, which is all the law requires. See Lockett, 8 438 U.S. at 604 (requiring consideration of “proffered” evidence); A.R.S. § 13-703 (G) 9 (including as mitigation, evidence proffered by defendant relating to his character, 10 propensities, and record). Petitioner first argued his prison work record as a stand-alone 11 factor in a motion of reconsideration on appeal. Because Petitioner did not allege his prison 12 work record as a mitigating circumstance before the sentencing judge or on direct appeal, the 13 court cannot have erred in failing to consider and weigh such a factor as part of the 14 sentencing determination. 15 Claim 4 is dismissed. 16 Claims 6 and 20 17 In Claim 6, Petitioner alleges that the (F)(6) aggravating factor – that the crime was 18 especially cruel, heinous, or depraved – is unconstitutionally vague and provides insufficient 19 guidance allowing for arbitrary imposition of the death penalty. Similarly, Claim 20 alleges 20 that the (F)(6) factor is vague and overbroad, and was unconstitutionally applied in his case. 21 The Court previously found Claim 6 exhausted (Dkt. 83 at 22), and Respondents concede 22 that Claim 20 is exhausted (Dkt. 103 at 45).8 To the extent Petitioner is contesting how the 23 sentencing judge applied the (F)(6) factor in this case, that is the focus of Claim 19, which 24 is addressed below. 25 26 8 27 28 It appears that Petitioner intends Claims 6 and 20 to be essentially the same claim. Claim 6 was included in Petitioner’s original amended petition, while Claim 20 was drafted by later-appointed counsel as a supplement to that petition. - 20 - 1 The United States Supreme Court has upheld the (F)(6) aggravating factor against 2 allegations that it is vague and overbroad, rejecting a claim that Arizona has not construed 3 it in a “constitutionally narrow manner.” See Lewis v. Jeffers, 497 U.S. 764, 774-77 (1990); 4 Walton v. Arizona, 497 U.S. 639, 649-56 (1990), overruled on other grounds by Ring v. 5 Arizona, 536 U.S. 584 (2002). Petitioner cites to the Walton dissent, which embraced 6 Petitioner’s arguments regarding the (F)(6) factor; thus, it is clear Petitioner’s assertions were 7 considered and rejected by the writers of the majority opinion. Petitioner also contends that 8 Walton relied on the fact that death sentences were imposed by judges, who are presumed 9 to know the law, and that this rationale is not applicable today because sentences now are 10 imposed by juries. This argument is irrelevant because Petitioner’s sentence was decided by 11 a judge pursuant to the law analyzed in Walton and Jeffers. 12 Claims 6 and 20 are dismissed. 13 Claim 9 14 Petitioner alleges that it is cruel and unusual punishment to impose the death penalty 15 on someone who was not convicted of intentional murder.9 The Court previously found this 16 claim exhausted. (Dkt. 83 at 22.) 17 Petitioner relies on the cases of Enmund and Tison; however, those cases are contrary 18 to Petitioner’s proposition. The Supreme Court holds that death is not a disproportionate 19 sentence for a defendant who actually killed, Tison v. Arizona, 481 U.S. 137, 157-58 (1987); 20 Enmund v. Florida, 458 U.S. 782, 797 (1982), regardless of the specific mens rea involved. 21 Petitioner does not contest that he was found guilty of premeditated murder, albeit based on 22 the mental state of “knowing” rather than “intending” his conduct would cause death. 23 Further, the trial judge made explicit findings as required by Enmund/Tison that Petitioner 24 25 26 27 28 9 This claim was included in Petitioner’s amended petition, which was filed by Petitioner’s original federal counsel. In the merits reply brief, filed by subsequentlyappointed counsel, Petitioner untimely attempts to morph this claim into one premised on the constitutionality of the premeditation jury instruction (Dkt. 110 at 68-70); that attempt comes too late. See supra note 5. - 21 - 1 “deliberately and with premeditation” killed the two victims. (RT 12/18/90 at 14.) 2 Claim 9 is dismissed. 3 Claim 12 4 Petitioner alleges that the trial court violated his right to due process when it denied 5 his request for experts that were necessary in the preparation of his defense at trial and 6 sentencing, in violation of Ake v. Oklahoma, 470 U.S. 68 (1985). 7 Background 8 On September 28, 1989, Petitioner filed a motion for appointment of experts, 9 requesting an independent psychiatric evaluation, a child psychologist, a mitigation 10 specialist, a fingerprint examiner, a jury consultant, a serologist, and a pathologist. (ROA 11 39.) In the motion, Petitioner cited Ake and requested, without explanation, that an 12 independent psychiatrist be appointed to assess his sanity at the time of the crime. (Id. at 2.) 13 He summarily requested the appointment of the other experts. (Id. at 3.) The court appointed 14 an investigator to assist Petitioner, who at that point was representing himself with advisory 15 counsel. (RT 10/6/89 at 13; ROA 43.) The following week, the court denied the remainder 16 of the expert requests without prejudice, allowing for reconsideration after Petitioner had an 17 opportunity to consult with the investigator. (RT 10/11/89 at 5-6; ROA 45.) In an ex parte 18 proceeding, Petitioner’s investigator asserted that a child psychologist was important to help 19 determine Petitioner’s social upbringing and to collaborate with a mitigation specialist. (RT 20 12/12/89 at 10.) The investigator indicated that a mitigation specialist would work with the 21 investigator, Petitioner, and mental health professionals to prepare a complete picture for a 22 mitigation presentation. (Id. at 10-12.) The court clarified that Petitioner’s competence to 23 stand trial was not in question, rather, advisory counsel said the mental health experts were 24 requested for mitigation. (Id. at 13.) The court denied the request for a mitigation specialist 25 but indicated that it would be reconsidered if Petitioner was convicted. (Id. at 17.) It appears 26 the Court appointed a serologist. (RT 12/12/89 at 16; ROA 140.) 27 Prior to trial, there was a change of judge on the case. After jury selection, Petitioner 28 - 22 - 1 asked that his advisory counsel be appointed to represent him going forward, and the court 2 granted the request. (RT 7/11/90 at 96-97.) After the verdict, Petitioner’s counsel informed 3 the court that previously she had asked for a mitigation specialist; when the judge asked if 4 she was referring to Arizona Rule of Criminal Procedure 26.5, which provides for 5 presentence mental health examinations, counsel answered, “Well, so to speak.” (RT 7/27/90 6 at 6-7.) The court appointed a psychologist proposed by Petitioner, Dr. Michael McMahon, 7 to evaluate Petitioner’s mental health and to conduct appropriate diagnostic testing. (Id. at 8 7; ROA 125.) Petitioner made no other requests for the appointment of experts prior to 9 sentencing. In his sentencing memorandum, Petitioner’s counsel relied on Dr. McMahon’s 10 August 18, 1990 evaluation to support his assertion of a (G)(1) statutory mitigating 11 circumstance – that his ability to appreciate the wrongfulness of his conduct or conform his 12 conduct to the law was significantly diminished. (ROA 149 at 18-19.) 13 Analysis 14 The parties agree that the seminal case regarding this claim is Ake v. Oklahoma, 470 15 U.S. 68 (1985).10 The Court first examines Petitioner’s assertion that he needed experts for 16 trial. According to Ake, due process requires the state to provide an indigent defendant 17 access to one competent psychiatrist when the defendant demonstrates that “his sanity at the 18 time of the offense is to be a significant factor at trial.” 470 U.S. at 83. Ake holds that 19 psychiatric assistance is most necessary and the risk of error without such assistance is at its 20 peak “when the defendant’s mental condition is seriously in question.” Id. at 82. 21 The amended habeas petition sets forth minimal allegations as to this claim, charging 22 only that Petitioner requested the appointment of a psychiatrist, a child psychologist, a 23 mitigation expert, a fingerprint examiner, a jury consultant, a serologist, and a pathologist, 24 and the court refused to provide funds for a jury consultant, denied a mitigation expert, and 25 26 10 27 28 Because the state court did not rule on the merits and rejected this claim on procedural grounds, which were insufficient to bar federal review, the Court reviews the claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167-68 n.4 (9th Cir. 2002). - 23 - 1 “refused to appoint experts that [were] necessary in the preparation of his defense.” (Dkt. 2 18 at 34-35.) These conclusory allegations are insufficient to sustain relief. See Rule 2, 3 Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring petition to state the facts 4 in support of each claim); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995). In light of 5 the history of this case and the Court’s concern regarding Petitioner’s representation at the 6 time of the amended petition, the Court also looks to the merits brief. With the exception of 7 occasional references to “other experts,” the merits brief focuses exclusively on the trial 8 court’s denial of a mitigation specialist for sentencing. (Dkt. 90 at 60-81.) Petitioner does 9 not contend before this Court that his sanity at the time of the crime was at issue and a 10 psychiatric evaluation was constitutionally required, therefore, the claim fails on its face.11 11 More importantly, Petitioner had the burden of making a threshold showing to the trial 12 court that his mental condition was a “significant factor.” Ake, 470 U.S. at 82-83. There is 13 no due process violation because, as set forth in the above Background section, Petitioner did 14 not make a showing before the trial judge that his sanity at the time of the crime would be 15 a significant factor at trial. See Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985) 16 (“Undeveloped assertions that the requested assistance would be beneficial,” are insufficient 17 to demonstrate that a state trial court’s denial of expert assistance violated due process.). 18 When given an opportunity to verbalize the need for a mental health professional, 19 Petitioner’s trial investigator focused solely on mitigation. 20 Therefore, pursuant to Ake, the trial court was not constitutionally obligated to appoint a (RT 12/12/89 at 10-12.) 21 22 23 24 25 26 27 28 11 In his merits reply brief, Petitioner argues that evidence at sentencing demonstrated that Petitioner had a diminished capacity; therefore, his “mental condition during the crime was clearly at issue” and was relevant to premeditation. (Dkt. 110 at 71.) It is too late to raise an argument in a reply brief, see supra note 5, and this assertion is too cursory for relief. Additionally, Ake requires that a defendant make a pretrial demonstration that his sanity will be a significant issue at trial; diminished capacity is distinct from insanity and evidence presented at sentencing cannot possibly satisfy the necessary pretrial showing. Finally, Arizona does not recognize diminished capacity as a defense. See State v. Mott, 187 Ariz. 536, 541, 931 P.2d 1046, 1051 (1997). - 24 - 1 psychiatrist for purposes of trial.12 2 The Court now assesses Petitioner’s contention that he was entitled to the appointment 3 of experts for sentencing. Regarding capital sentencing, Ake held only that due process 4 requires the provision of psychiatric access to a defendant “when the State presents 5 psychiatric evidence of the defendant’s future dangerousness.” 470 U.S. at 83. 6 The entirety of Petitioner’s argument before this Court is focused on the necessity of 7 a mitigation specialist to investigate and compile a social history for purposes of sentencing. 8 Petitioner has not cited, and the Court has not located, a single federal court holding that Ake 9 mandates appointment of a mitigation specialist under any circumstances. In recognizing the 10 right to a psychiatrist, the Court in Ake focused on psychiatrists’ specialized knowledge and 11 ability to diagnose and offer reasoned conclusions that may assist the fact finder when a 12 defendant’s mental condition is at issue, 470 U.S. at 80-81; the Court noted that such 13 assistance is of particular importance when the State presents expert testimony because 14 psychiatry is an inexact science and experts may disagree, id. at 81, 84. In contrast, the work 15 of a mitigation specialist does not hold the same value or risk of error in its absence because 16 a lawyer and investigator are capable of much of the work, and the work of a mitigation 17 specialist is infrequently used to rebut State evidence. No court has held that due process 18 requires the appointment of a specialized mitigation investigator in every, or any, capital 19 habeas case, and this Court finds that such a ruling is not warranted here. 20 To the extent Petitioner is contending that his right to a mental health professional was 21 violated, the Court disagrees. Some circuit courts have found that the Ake holding is narrow 22 and clearly requires psychiatric assistance for sentencing only “when the state presents 23 psychiatric evidence of the defendant’s future dangerousness.” Mason v. Mitchell, 320 F.3d 24 25 26 27 28 12 Petitioner has presented no factual argument in this Court regarding the additional trial experts he requested, including a fingerprint examiner, serologist, pathologist, and jury consultant. More importantly, Petitioner has set forth no law to support his general assertion that Ake applies to the appointment of experts outside the realm of mental health. Therefore, the Court summarily denies this aspect of Claim 12. - 25 - 1 604, 615 (6th Cir. 2003); Goodwin v. Johnson, 132 F.3d 162, 188-89 (5th Cir. 1997) (“Ake 2 only creates an entitlement to the assistance of a psychiatrist during sentencing when the state 3 offers psychiatric evidence of the defendant’s future dangerousness”) (citing Tuggle v. 4 Netherland, 516 U.S. 10, 12 (1995) (per curiam), and Simmons v. South Carolina, 512 U.S. 5 154, 164 (1994)); but see Liles v. Saffle, 945 F.2d 333, 341 (10th Cir. 1991) (finding 6 psychiatric assistance necessary because petitioner established mental condition as a 7 significant factor and state presented non-psychiatric evidence of future dangerousness). 8 Future dangerousness is not an aggravating factor in Arizona, see A.R.S. §13-703(F), and the 9 State did not rely on any expert mental health testimony regarding aggravation or mitigation; 10 therefore, under a strict reading of Ake, due process did not require the appointment of an 11 expert. 12 The Ninth Circuit has found that a defendant was entitled to a psychiatric expert to 13 prepare his mitigation claims, in light of his professed dissociative state at the time of the 14 crime and his use of hallucinogenic drugs, and to respond to the “neutral” court-appointed 15 psychiatrist’s testimony that undercut his mitigation claims. Smith v. McCormick, 914 F.2d 16 1153, 1162-63 (9th Cir. 1990). Petitioner’s circumstances are significantly distinguishable 17 from those present in Smith. Petitioner never made a showing to the trial court that his 18 mental state would be a significant issue for sentencing: in writing, he merely requested the 19 appointment with no explanation regarding mitigation; in his initial oral request he asserted 20 that he needed a psychologist to assess his social upbringing (RT 12/12/89 at 10); and at the 21 time of the verdict, he requested a sentencing expert to prepare a document for the court (RT 22 7/27/90 at 6-7). Further, Petitioner’s counsel agreed to the appointment of a neutral 23 psychologist (RT 7/27/90 at 7), the court appointed the person suggested by Petitioner, and, 24 in the months prior to sentencing, Petitioner did not request an independent expert to rebut 25 the August 18, 1990 psychologist’s report. Additionally, Petitioner made use of the 26 psychologist’s report for mitigation, the report was not used against him, the trial court relied 27 on it in finding the (G)(1) statutory mitigating circumstance, and the State presented no 28 - 26 - 1 mental health expert evidence regarding aggravation or mitigation. This is more similar to 2 an Eighth Circuit case in which the court found that appointment of a neutral psychiatrist, 3 who testified at sentencing for the defense, satisfied Ake when the State did not rely on 4 mental health evidence regarding the defendant’s mental state for sentencing. Davis v. 5 Norris, 423 F.3d 868, 875-77 (8th Cir. 2005). The Court finds that Petitioner did not satisfy 6 the threshold showing that he was entitled to an additional mental health expert for purposes 7 of sentencing. See Williams v. Stewart, 441 F.3d 1030, 1049-50 (9th Cir. 2006) (requiring 8 threshold showing that defendant’s mental state will be at issue during sentencing). 9 As a final matter, an Ake claim is based on the evidence that was before the trial court. 10 See 470 U.S. at 83 (examining the showing made to the trial judge establishing the need for 11 psychiatric assistance); Goodwin, 132 F.3d at 189. Therefore, neither factual development 12 nor an evidentiary hearing is necessary to this claim’s resolution. See Hendricks v. Vasquez, 13 974 F.2d 1099, 1103 (9th Cir.1992). 14 Claim 12 is dismissed. 15 Claim 15 16 Petitioner alleges that Arizona’s statutory death penalty scheme is unconstitutional 17 because it allowed a judge, not a jury, to find the aggravating factors and impose the 18 sentence, and it failed to require notice of the aggravating factors by way of the indictment. 19 Respondents contend this claim is exhausted only in part. Regardless of exhaustion, 20 the Court will dismiss the entirety of this claim because it is plainly meritless. See 28 U.S.C. 21 § 2254(b)(2); Rhines v. Weber, 544 U.S. 269, 277 (2005). Claim 15 is premised primarily 22 on Ring v. Arizona, 536 U.S. 584, 609 (2002), which found that Arizona’s aggravating 23 factors are an element of the offense of capital murder and must be found by a jury. 24 However, in Schriro v. Summerlin, 524 U.S. 348 (2004), the Supreme Court held that Ring 25 does not apply retroactively to cases already final on direct review. Because Petitioner’s 26 direct review was final in 1994 prior to Ring, he is not entitled to relief premised on that 27 ruling. 28 - 27 - 1 With respect to the portion of the claim regarding his indictment, Petitioner also relies 2 on Jones v. United States, 526 U.S. 227, 252 (1999), in which the Supreme Court held that 3 facts constituting elements of a offense rather than just a sentencing enhancement must be 4 charged in a federal indictment. However, the Supreme Court has long held that the Fifth 5 Amendment provisions requiring indictment by a grand jury are not part of the due process 6 of law incorporated as to state criminal prosecutions by virtue of the Fourteenth Amendment. 7 See Hurtado v. People of State of Cal., 110 U.S. 516, 538 (1884); Branzburg v. Hayes, 408 8 U.S. 665, 688 n.25 (1972). 9 Claim 15 is dismissed. 10 Claim 16 11 Petitioner alleges that his Eighth Amendment right to a fair sentencing was violated 12 by the trial court’s consideration of victim impact evidence. Petitioner concedes that this 13 claim was not fairly presented to the Arizona Supreme Court. He contends it was exhausted 14 by the supreme court’s fundamental error review or independent sentencing review; however, 15 he acknowledges that this Court has already rejected those types of review as avenues to 16 exhaust most claims. 17 First, as noted by Petitioner, this Court previously rejected his argument that any 18 claims not fairly presented were exhausted by the Arizona Supreme Court’s review for 19 fundamental error. (Dkt. 83 at 9-10 (citing Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 20 2002); Poland (Patrick) v. Stewart, 169 F.3d 573, 583 (9th Cir. 1999); Poland (Michael) v. 21 Stewart, 117 F.3d 1094 (9th Cir. 1997); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th 22 Cir. 1996).) Second, the Arizona Supreme Court independently reviews each capital case 23 to assess the presence or absence of aggravating and mitigating circumstances and the weight 24 to give to each to determine whether the death sentence is appropriate. See State v. Gretzler, 25 135 Ariz. 42, 54, 659 P.2d 1, 13 (1983); State v. Blazak, 131 Ariz. 598, 604, 643 P.2d 694, 26 700 (1982). Claim 16 goes far beyond the stated scope of that review, and the Ninth Circuit 27 holds that the Arizona Supreme Court’s independent sentencing review does not exhaust a 28 - 28 - 1 claim alleging that prejudicial information was considered at sentencing. Moormann v. 2 Schriro, 426 F.3d 1044, 1057-58 (9th Cir. 2005). Thus, this claim was not properly 3 exhausted. 4 Petitioner is now precluded by Arizona Rule of Criminal Procedure 32.2(a)(3) and 5 32.4 from obtaining relief on this claim in state court. See Ariz. R. Crim. P. 32.2(b); 32.1(d)- 6 (h). Thus, this claim is technically exhausted but procedurally defaulted, absent a showing 7 of cause and prejudice or a fundamental miscarriage of justice. 8 Petitioner alleges that the cause to excuse his default is ineffective assistance of 9 counsel on appeal and in PCR proceedings. In a prior order, the Court rejected ineffective 10 assistance of appellate counsel as cause because Petitioner never presented and exhausted 11 such an allegation as an independent claim (Dkt. 83 at 10-11). See Edwards v. Carpenter, 12 529 U.S. 446, 451-53 (2000) (“ineffective-assistance-of-counsel claim asserted as cause for 13 the procedural default of another claim can itself be procedurally defaulted”); Murray, 477 14 U.S. at 489-90 (“the exhaustion doctrine . . . generally requires that a claim of ineffective 15 assistance be presented to the state courts as an independent claim before it may be used to 16 establish cause for a procedural default.”); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 17 1988) (exhaustion requires petitioner to first raise ineffective appellate counsel claim 18 separately in state court before alleging it as cause for default). Similarly, the Court rejected 19 ineffective assistance of PCR counsel as cause because there is no constitutional right to 20 counsel for state PCR proceedings (Dkt. 83 at 24-26). Coleman, 501 U.S. at 752, 755 21 (recognizing IAC as cause only when it rises to the level of an independent constitutional 22 violation); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Murray v. Giarratano, 492 23 U.S. 1, 7-12 (1989) (the Constitution does not require states to provide counsel in PCR 24 proceedings even when the putative petitioners are facing the death penalty); Bonin v. 25 Vasquez, 999 F.2d 425, 429-30 (9th Cir. 1993) (refusing to extend the right of effective 26 assistance of counsel to state collateral proceedings); Harris v. Vasquez, 949 F.2d 1497, 27 1513-14 (9th Cir. 1991). Thus, the Court rejects Petitioner’s request to treat ineffective 28 - 29 - 1 assistance of appellate or PCR counsel as cause to excuse the procedural default of this 2 claim. 3 Petitioner also argues that there will be a fundamental miscarriage of justice if this 4 claim is not heard on the merits because Petitioner “is actually innocent of first-degree 5 premeditated murder and because he was sentenced to death due to constitutional errors.” 6 (Dkt. 110 at 91.) This cursory assertion falls far short of the requirements for innocence of 7 the crime or the death penalty. First, to demonstrate that “a constitutional violation has 8 probably resulted in the conviction of one who is actually innocent,” a petitioner must prove 9 with new reliable evidence that “it is more likely than not that no reasonable juror would 10 have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 324, 11 327 (1995). Petitioner has not alleged he has any new reliable evidence to support this 12 assertion. Second, to establish a fundamental miscarriage of justice based on innocence of 13 the death penalty, Petitioner must show by clear and convincing evidence that, but for a 14 constitutional error, no reasonable factfinder would have found the existence of any 15 aggravating circumstance or some other condition of eligibility for the death sentence under 16 the applicable state law. Sawyer v. Whitley, 505 U.S. 333, 336 (1992). Petitioner does not 17 assert that all three aggravating factors were unconstitutional; in fact, no claim challenges the 18 (F)(2) or (F)(8) factors, which were based respectively on findings that Petitioner had two 19 prior violent felony convictions and that he committed multiple homicides during the same 20 episode. In sum, Petitioner has not alleged sufficient facts to establish a fundamental 21 miscarriage of justice. 22 Claim 16 is dismissed as procedurally defaulted. 23 Claim 18 24 Petitioner alleges that Arizona’s death penalty statute is unconstitutional because it 25 allows the trial court to withhold information contained in a presentence report. The parties 26 contest whether this claim was fully exhausted; regardless, the Court will dismiss the entirety 27 of this claim because it is plainly meritless. See 28 U.S.C. § 2254(b)(2); Rhines, 544 U.S. 28 - 30 - 1 at 277. 2 At the time of Petitioner’s sentencing, the governing death penalty statute provided: 3 6 In the sentencing hearing the court shall disclose to the defendant or defendant’s counsel all material contained in any presentence report, if one has been prepared, except such material as the court determines is required to be withheld for the protection of human life. Any presentence information withheld from the defendant shall not be considered in determining the existence or nonexistence of the circumstances included in subsection F or G of this section. 7 A.R.S. § 13-703(C) (West 1990). The sentencing judge stated on the record: “All material 8 in these presentence reports was disclosed to the Defendant and the Prosecutor.” (RT 9 12/18/90 at 3.) The Arizona Supreme Court made a factual finding that “the judge disclosed 10 all the information that he received and used in sentencing defendant.” Ramirez, 178 Ariz. 11 at 128, 871 P.2d at 249. 4 5 12 Petitioner’s suggestion that the statutory language “[a]ny presentence information 13 withheld” could include information from sources other than official presentence reports 14 (including as he argues “other presentence reports that were not submitted” (Dkt. 110 at 96)) 15 is contrary to a reasonable interpretation of this language. The language in the second 16 sentence clearly refers back to the first sentence, which talks only about the possibility of 17 withholding information from presentence reports and clearly includes “any” such reports. 18 Similarly unreasonable is Petitioner’s suggestion that the court may have withheld 19 mitigating evidence from him, thereby not considering what could be relevant mitigation. 20 Petitioner does not dispute that governing rules required the trial court to inform a defendant 21 if any material from a presentence report was withheld. Ariz. R. Crim. P. 26.6(c). In accord 22 with that rule, the judge notified Petitioner that nothing had been withheld and the Arizona 23 Supreme Court affirmed that finding. Further, the sentencing judge explicitly stated that its 24 aggravation and mitigation findings were based solely on the evidence at trial, “comments 25 at allocution by the State and the Defendant, memoranda and evidence received at these 26 hearings, and the presentence reports.” (RT 12/18/90 at 4.) Thus, nothing improper was 27 considered and there is no factual foundation for this claim. Claim 18 is dismissed. 28 - 31 - 1 Claim 19 2 Petitioner alleges that there was insufficient evidence to support the (F)(6) aggravating 3 factor – that the crime was especially cruel, heinous, or depraved – and that the trial court’s 4 fact findings were unreasonable. Respondents concede that this claim was exhausted on 5 direct appeal. (Dkt. 103 at 43.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The trial court cited the following facts in support of its finding that the murders were both especially cruel and heinous/depraved: The testimony of Priscilla Arce, Larry Bernabe, Phoenix Police Department homicide detective Richard Fuqua, and Dr. George Bolduc, forensic pathologist, as well as the physical evidence and the telling photographs of the victims and the crime scene, shows that both Candie and Mary Ann Gortarez were conscious during the time that the Defendant inflicted at least 15 to 18 stab wounds on each of them, as well as other slices, cuts, and defensive type injuries. The evidence further shows that the Defendant intended or reasonably foresaw that both victims would suffer pain and mental distress from his repeated vicious assaults. Witnesses Arce and Bernabe testified that at approximately 5:00 a.m. they were awakened by screaming, banging on walls, and chasing sounds from the Gortarez apartment located directly below their apartment. Between 5:00 a.m. and 5:30 a.m., Bernabe twice went downstairs to the Gortarez apartment to determine what was occurring and to offer assistance, if requested. On the first occasion, the noise stopped after he knocked hard on the front door, but nobody responded. After Bernabe returned upstairs, the screaming, pounding, shuffling and running resumed and one of the victims was heard to scream and yell for help. Bernabe again went downstairs to the back of the apartment and pounded and knocked on the door. The noise stopped, but, again, nobody came to the door. Bernabe then went to the manager’s apartment and called the police. This violent and deadly episode lasted from 5:00 a.m. to 5:30 a.m., when the police arrived in response to Bernabe’s call for help. Evidence further showed that Candie and Mary Ann Gortarez, who was apparently a girlfriend of the Defendant, fought valiantly for their lives before succumbing to the Defendant’s vicious and senseless assaults. Crime scene photos and evidence and the testimony of Dr. Bolduc established that Mary Ann Gortarez had many defense type cuts as well as 18 stab wounds, that she had been hit and bruised about her eyes, and that the living room, kitchen, bathroom, and bedroom in which Mary Ann and Candie were found were in bloody disarray, evidencing a prolonged and violent struggle between the Defendant and both victims. All of these factors indicate that both victims were conscious and fought for their lives throughout this 20 to 30-minute assault and suffered physically and emotionally throughout this period, especially when their cries for help were heard but not answered because of the Defendant’s unrelenting and 28 - 32 - 1 overpowering deadly assault. 2 The Court further finds beyond a reasonable doubt that the murders of Candie and Mary Ann Gortarez were committed in an “especially heinous and depraved” manner because the Defendant acted in an especially hateful or reprehensible manner in committing these offenses. The Defendant inflicted gratuitous and unnecessary violence, pain and suffering, both physical and emotional, on both victims. This is evidenced by the large number of stab wounds, cuts and abrasions over all parts of Mary Ann Gortarez’s body and the upper parts of Candie Gortarez’s body, and by the fact that both murders were unprovoked, senseless, and without apparent motive. Furthermore, the fact that the Defendant used at least four weapons, including a box cutter, manicure scissors, cake knife, and large kitchen knife, to commit these offenses and that he had sexual intercourse with Candie Gortarez either shortly before or when he killed her, shows that he was acting in an especially perverted, hateful, cold-blooded, sadistic and reprehensible manner in killing both victims. 3 4 5 6 7 8 9 10 11 Finally, that the Defendant acted in an especially heinous and depraved manner is evidenced by the fact that Candie Gortarez was only 15 years of age, and that both victims were smaller, weaker and essentially helpless in the face of the Defendant’s overpowering, armed, and prolonged assaults. 12 (RT 12/18/90 at 6-9.) 13 The Arizona Supreme Court affirmed only the cruelty finding: 14 15 16 Cruelty refers to the pain and suffering that the victim experiences before death. Cruelty can be established by evidence of a prolonged, bloody struggle and the victim’s defensive wounds. Cruelty can also be established by evidence of the victim’s awareness of suffering inflicted on a loved one. The victim’s suffering must have been foreseeable to the defendant. 17 23 The victims in this case endured great pain and suffering over a prolonged period of time. The neighbors testified to the banging, screaming, cries for help, and running noises that alerted them to the homicides and that continued for 20 to 30 minutes. When the police arrived, they found evidence of great violence; they discovered blood and murder weapons throughout the apartment. Expert testimony as well as the physical evidence established that both victims were conscious during the time that defendant repeatedly stabbed each of them 15-20 times. Each was obviously aware of the other’s suffering. Both sustained numerous other cuts and bruises. Mrs. G suffered defensive wounds while fighting unsuccessfully to save her life. The victims’ sufferings were inescapably foreseeable to defendant. We believe the record in this case amply demonstrates that these murders were especially cruel. 24 Ramirez, 178 Ariz. at 129, 871 P.2d at 250 (citations omitted). Because the court upheld the 25 cruelty finding, it did not reach the trial court’s finding regarding heinousness/depravity. Id. 26 Habeas review of a state court’s application of an aggravating factor “is limited, at 27 most, to determining whether the state court’s finding was so arbitrary and capricious as to 18 19 20 21 22 28 - 33 - 1 constitute an independent due process or Eighth Amendment violation.” Jeffers, 497 U.S. 2 at 780. In making that determination, the reviewing court must inquire “whether, after 3 viewing the evidence in the light most favorable to the prosecution, any rational trier of fact 4 could have found that the factor had been satisfied.” Id. at 781 (quoting Jackson v. Virginia, 5 443 U.S. 307, 319 (1979)). 6 Petitioner contends there was no factual support for the finding that the murders were 7 unprovoked or that the sexual intercourse with Candie Gortarez was not consensual. Further, 8 he contends that he was approximately the same size as the victims, therefore, the finding 9 that the victims were physically smaller was unfounded. Petitioner’s factual challenges relate 10 only to the heinous/depraved finding and do not address the cruelty finding by the trial court 11 or Arizona Supreme Court. 12 The especially cruel prong of (F)(6) addresses the suffering of the victim. See State 13 v. Murray, 184 Ariz. 9, 37, 906 P.2d 542, 570 (1995). The factor is satisfied if the victim 14 experienced physical or mental pain and suffering prior to dying. Id. As reflected in the 15 state courts’ findings and the record, a rational factfinder could have determined that the 16 murders were especially cruel in light of the prolonged struggle and numerous injuries, as 17 well as each victim’s awareness of the other’s suffering. It was not objectively unreasonable 18 for the Arizona Supreme Court to find that the crime was especially cruel. 19 As reflected in the appellate opinion regarding Petitioner’s case, Arizona law indicates 20 that the finding of either especial cruelty or especial depravity alone will establish the (F)(6) 21 factor and that the validity, or lack thereof, of the other prong does not affect the weight 22 given to the circumstance. See, e.g., State v. Djerf, 191 Ariz. 583, 597, 959 P.2d 1274, 1288 23 (1998) ((F)(6) circumstance upheld based on cruelty alone without considering validity of 24 depravity finding); State v. Towery, 186 Ariz. 168, 188, 920 P.2d 290, 310 (1996) (same); 25 State v. Bolton, 182 Ariz. 290, 312, 896 P.2d 830, 852 (1995) (same); State v. Roscoe, 184 26 Ariz. 484, 500-01, 910 P.2d 635, 651-52 (1996) (upholding (F)(6) factor based on cruelty 27 after invalidating depravity finding). Therefore, the Court need not consider Petitioner’s 28 - 34 - 1 arguments as to the heinous/depraved finding. 2 Claim 19 is dismissed. 3 Claims 21-26 and 28 4 These claims all challenge Arizona’s death penalty scheme and its application to 5 Petitioner’s sentence. Respondents concede exhaustion as to Claim 21 (in part), Claim 22, 6 and Claim 25. They contest exhaustion as to the remainder of the claims. Regardless of 7 exhaustion, the Court will dismiss the entirety of these claims because they are plainly 8 meritless. See 28 U.S.C. § 2254(b)(2); Rhines, 544 U.S. at 277. 9 Claim 21 is captioned: “The balance of aggravation versus mitigation . . . creates a 10 burden on the defendant that is not contemplated by the statute,” in violation of Petitioner’s 11 enumerated constitutional rights. (Dkt. 84 at 29.) The claim seems to contain several 12 different allegations: that the court did not cumulatively weigh the mitigation against the 13 aggravation, that Petitioner’s mitigation clearly outweighed the aggravation and he should 14 have been sentenced to a life term,13 and that it is unreliable to require a defendant to prove 15 the existence of mitigating factors. (Id. at 30-31.) Although Respondents expressed 16 confusion regarding the specific substance of Claim 21 (Dkt. 103 at 46), Petitioner provided 17 no reply on the merits (Dkt. 110 at 99). Claim 22 alleges that Arizona’s death penalty is 18 unconstitutional because the State is not required to prove that the aggravation outweighs the 19 mitigation beyond a reasonable doubt. Claim 23 alleges that the Arizona death penalty 20 statute is unconstitutional because it mandates that a death sentence be imposed if there is 21 one aggravator and no sufficient mitigating circumstances. 22 In Walton, the Supreme Court rejected Petitioner’s statutory arguments in Claims 21 23 and 22 that “Arizona’s allocation of the burdens of proof in a capital sentencing proceeding 24 violates the Constitution.” 497 U.S. at 651. The Court held that as long as the State was 25 26 13 27 28 The challenges regarding how the sentencer actually weighed the aggravation and mitigation in Petitioner’s case are fully addressed above in Claim 3 and will not be discussed again. - 35 - 1 required to prove aggravation beyond a reasonable doubt, it is not unconstitutional to require 2 the defendant to prove mitigating circumstances sufficiently substantial for leniency. Id. at 3 650. The Walton Court also rejected Claim 23 that Arizona’s death penalty statute is 4 impermissibly mandatory and creates a presumption in favor of the death penalty because it 5 provides that the death penalty “shall” be imposed if one or more aggravating factors are 6 found and mitigating circumstances are insufficient to call for leniency. Id. at 651-52 (citing 7 Blystone v. Pennsylvania, 494 U.S. 299 (1990), and Boyde v. California, 494 U.S. 370 8 (1990)); see Kansas v. Marsh, 548 U.S. 163, 173 (2006) (relying on Walton to uphold 9 Kansas’s death penalty statute, which directs imposition of the death penalty when the state 10 has proved that mitigating factors do not outweigh aggravators); Smith v. Stewart, 140 F.3d 11 1263, 1272 (9th Cir. 1998) (summarily rejecting challenges to the “mandatory” quality of 12 Arizona’s death penalty statute and its failure to apply the beyond-a-reasonable-doubt 13 standard). 14 Claim 24 alleges that at the time of Petitioner’s sentencing the Arizona death penalty 15 statute was applied in a way that discriminates against poor, male defendants in violation of 16 the Equal Protection Clause. Clearly established federal law holds that “a defendant who 17 alleges an equal protection violation has the burden of proving ‘the existence of purposeful 18 discrimination’” and must demonstrate that the purposeful discrimination “had a 19 discriminatory effect” on him. McCleskey, 481 U.S. at 292 (quoting Whitus v. Georgia, 385 20 U.S. 545, 550 (1967)). Therefore, to prevail under the Equal Protection Clause, Petitioner 21 “must prove that the decisionmakers in his case acted with discriminatory purpose.” Id. 22 Petitioner does not attempt to meet this burden. This claim fails because he offers no 23 evidence specific to his case that would support an inference that his gender or economic 24 status impacted his sentence. See Jeffers v. Lewis, 38 F.3d 411, 419 (9th Cir. 1994) (finding 25 no evidence that race or gender creates a “constitutionally significant risk of impermissible 26 bias” in Arizona capital sentencing). 27 Claim 25 alleges that the automatic appeal to the Arizona Supreme Court of all 28 - 36 - 1 criminal cases in Arizona in which the defendant is sentenced to death violates his right to 2 equal protection by providing less opportunity for appellate review than is provided to a 3 defendant in a non-capital case (who appeals to the state court of appeals and then may seek 4 discretionary review in the supreme court). The Arizona Supreme Court rejected this claim, 5 finding that the direct appeal to that court was rationally based because it promoted 6 consistency in death sentencing. Ramirez, 178 Ariz. at 122, 871 P.2d at 243. Petitioner fails 7 to cite, and the Court is not aware of, any clearly established Supreme Court law in support 8 of his position; therefore, he cannot obtain relief on this claim. See Musladin, 127 S. Ct. at 9 654. Further, the Supreme Court has approved a system of direct appeal to a state supreme 10 court as one that maximizes rationality and consistency. Proffitt v. Florida, 428 U.S. 242, 11 258-59 (1976). The Arizona Supreme Court’s rejection of this claim was not objectively 12 unreasonable. 13 Claim 26 alleges that Petitioner’s rights were violated because the Arizona appellate 14 courts did not conduct a proportionality review of his sentence. There is no federal 15 constitutional right to proportionality review of a death sentence, McCleskey, 481 U.S. at 306 16 (citing Pulley v. Harris, 465 U.S. 37, 43-44 (1984)), and Arizona discontinued the practice 17 in 1992, State v. Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584 (1992). The Ninth Circuit 18 has explained that the interest implicated by proportionality review – the “substantive right 19 to be free from a disproportionate sentence” – is protected by the application of “adequately 20 narrowed aggravating circumstance[s].” Ceja, 97 F.3d at 1252. 21 Claim 28 alleges that Arizona’s capital punishment scheme is cruel and unusual 22 punishment because it is not justified by societal interests. Clearly established federal law 23 holds that the death penalty does not constitute cruel and unusual punishment. Gregg, 428 24 U.S. at 169; see also Roper v. Simmons, 543 U.S. 551, 568-69 (2005) (noting that the death 25 penalty is constitutional when applied to a narrow category of crimes and offenders). 26 Further, the Supreme Court has found that it is within the province of state legislatures to 27 assess the value of capital punishment; thus, the Court concluded that “the infliction of death 28 - 37 - 1 as a punishment for murder is not without justification and thus is not unconstitutionally 2 severe.” Gregg, 428 U.S. at 187. Petitioner also contests numerous specific provisions of 3 Arizona’s death penalty statute; these statutory challenges are the same ones raised in earlier 4 claims and addressed above by the Court. 5 Claims 21-26 and 28 are dismissed. 6 Claim 27 7 Petitioner alleges that his appellate counsel was ineffective for failing to raise on 8 direct appeal all of the claims asserted in this federal habeas proceeding. Petitioner asserts 9 this claim was raised in his PCR reply brief. In a prior order, the Court rejected Petitioner’s 10 contention that raising this claim in a reply brief was sufficient for exhaustion, because 11 Petitioner did not include the claim in his PCR petition or Petition for Review to the Arizona 12 Supreme Court. (Dkt. 83 at 11.) Additionally, as discussed above in Claim 16 and in the 13 Court’s prior order (id. at 9-10), the Arizona Supreme Court’s fundamental error review was 14 not a vehicle for exhausting any claims. Similarly, the Arizona Supreme Court’s independent 15 review of each death sentence on direct appeal cannot exhaust a claim premised on appellate 16 counsel’s error in that same proceeding. 17 Petitioner is now precluded by Arizona Rule of Criminal Procedure 32.2(a)(3) and 18 32.4 from obtaining relief on this claim in state court. See Ariz. R. Crim. P. 32.2(b); 32.1(d)- 19 (h); Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) (“the ground of 20 ineffective assistance of counsel cannot be raised repeatedly”; therefore, if additional 21 ineffectiveness allegations are raised in a successive petition, the claims in the later petition 22 necessarily will be precluded). Thus, this claim is technically exhausted but procedurally 23 defaulted, absent a showing of cause and prejudice or a fundamental miscarriage of justice. 24 Petitioner alleges that the ineffectiveness of his appellate and PCR counsel, in failing 25 to raise this claim, constitutes cause to excuse his default. That assertion fails for the same 26 reasons set forth in the discussion of Claim 16 above and in the Court’s prior order 27 addressing these issues (Dkt. 83 at 10-11, 24-26). Additionally, it is nonsensical to argue that 28 - 38 - 1 Petitioner’s appellate counsel is at fault for failing to raise on direct appeal a claim alleging 2 that he was ineffective for failing to raise additional claims during that proceeding. Finally, 3 Petitioner makes the same cursory allegation regarding fundamental miscarriage of justice 4 as he did with respect to Claim 16, and the Court rejects it on the same grounds. 5 Claim 27 is dismissed as procedurally barred. 6 Claim 29 7 Petitioner alleges that execution by lethal injection or lethal gas will involve the 8 unnecessary and wanton infliction of pain and suffering in violation of the Eighth 9 Amendment. Further, he contends that the change in law from lethal gas to lethal injection 10 as the method of execution violates the Ex Post Facto Clause, and that it is cruel and unusual 11 punishment to require Petitioner to choose his method of execution. 12 Petitioner acknowledges that he has never presented this claim, but he argues there 13 is no available state corrective process. Petitioner provides no basis for this summary 14 argument, which he repeated in his reply brief even though Respondents disputed it. The 15 Court finds that Petitioner has failed to establish there is an applicable exception to the 16 exhaustion requirement. 17 As discussed above in Claim 16 and in a prior order (Dkt. 83 at 9-10), the Arizona 18 Supreme Court’s fundamental error review was not a vehicle for exhausting any claims. 19 Petitioner is correct that the Arizona Supreme Court independently reviewed his case to 20 assess the presence or absence of aggravating and mitigating circumstances and the weight 21 to give to each to determine whether the death sentence was appropriate. See State v. 22 Gretzler, 135 Ariz. 42, 54, 659 P.2d 1, 13 (1983); State v. Blazak, 131 Ariz. 598, 604, 643 23 P.2d 694, 700 (1982). However, Claim 29 falls far outside the stated scope of that review, 24 and the Ninth Circuit holds that the Arizona Supreme Court’s independent sentencing review 25 does not exhaust a claim alleging that the death penalty is cruel and unusual. Moormann, 26 426 F.3d at 1057-58. 27 Petitioner is now precluded by Arizona Rule of Criminal Procedure 32.2(a)(3) and 28 - 39 - 1 32.4 from obtaining relief on this claim in state court. See Ariz. R. Crim. P. 32.2(b); 32.1(d)- 2 (h). Thus, this claim is technically exhausted but procedurally defaulted, absent a showing 3 of cause and prejudice or a fundamental miscarriage of justice. 4 Petitioner alleges that the ineffectiveness of his appellate and PCR counsel, in failing 5 to raise this claim, constitutes cause to excuse his default of this claim. That assertion fails 6 for the same reasons set forth in the discussion of Claim 16 and in the Court’s prior order 7 addressing these issues (Dkt. 83 at 10-11, 24-26). Finally, Petitioner makes the same cursory 8 allegation regarding fundamental miscarriage of justice as he did with respect to Claim 16, 9 and the Court rejects it on the same grounds. 10 Claim 29 is dismissed as procedurally barred. 11 Claim 30 12 Petitioner alleges that he is not competent to be executed. Both Petitioner and 13 Respondents acknowledge that this allegation is not ripe and is premature for federal review. 14 (Dkts. 84 at 74, 103 at 56.) Pursuant to Martinez-Villareal v. Stewart, 118 F.3d 628, 634 (9th 15 Cir. 1997), aff’d, 523 U.S. 637 (1998), a claim of incompetency for execution “must be 16 raised in a first habeas petition, whereupon it also must be dismissed as premature due to the 17 automatic stay that issues when a first petition is filed.” If again presented to the district 18 court once the claim becomes ripe for review, it shall not be treated as a second or successive 19 petition. See id. at 643-44. Therefore, the Court will dismiss Claim 30 without prejudice as 20 premature. 21 Claim 31 22 Petitioner alleges that his right to due process will be violated because he will not 23 receive a fair clemency proceeding. In particular, he alleges the proceeding will not be fair 24 and impartial based on the Board’s selection process, composition, training and procedures, 25 and because the Attorney General will act as the Clemency Board’s legal advisor and as an 26 advocate against Petitioner. 27 Petitioner acknowledges that because he has not sought clemency this claim is 28 - 40 - 1 premature and not ripe for adjudication. More significantly, however, this claim is not 2 cognizable on federal habeas review. Habeas relief can only be granted on claims that a 3 prisoner “is in custody in violation of the Constitution or laws or treaties of the United 4 States.” 28 U.S.C. § 2254(a). Petitioner’s challenges to state clemency procedures and/or 5 proceedings do not represent an attack on his detention, i.e., his conviction or sentence and, 6 thus, do not constitute proper grounds for relief. See Franzen v. Brinkman, 877 F.2d 26, 26 7 (9th Cir. 1989) (per curiam); see also Woratzeck v. Stewart, 118 F.3d 648, 653 (9th Cir. 8 1997) (per curiam) (clemency claims are not cognizable under federal habeas law). 9 Therefore, the Court will dismiss Claim 31 as not cognizable in a federal habeas petition. 10 Conclusion 11 Claims 3, 4, 6, 9, 12, 15, 18-26, and 28 are dismissed on the merits. Claims 16, 27, 12 and 29 are dismissed as procedurally barred. Claim 30 is premature, and Claim 31 is not 13 cognizable in a federal habeas proceeding. 14 CLAIM 34 15 In its March 20, 2007 order granting Petitioner’s motion to amend to add Claim 34, 16 the Court determined that the claim related back to timely-filed Claim 8 and, therefore, was 17 not barred by the statute of limitations. (Dkt. 158 at 13.) The Court also conducted a cursory 18 review of exhaustion and procedural default regarding Claim 34 and determined that the state 19 court’s order summarily dismissing Petitioner’s successive PCR proceeding did not clearly 20 rest on an adequate state procedural bar. (Id. at 3 n.2.) After fully assessing the PCR court’s 21 ruling, the Court now determines that the procedural status of this claim must be revisited. 22 In Arizona, a PCR proceeding is commenced by the timely filing of a “notice of post- 23 conviction relief” with the court in which the conviction occurred. Ariz. R. Crim. P. 32.4(a). 24 For capital cases, a PCR notice is timely when automatically filed by the Arizona Supreme 25 Court upon issuance of the mandate affirming the defendant’s conviction and sentence on 26 direct appeal. Id. Separate from timeliness, Arizona’s rules also provide that a defendant is 27 precluded from post-conviction relief for any claim still raisable on appeal or in a post-trial 28 - 41 - 1 motion; previously adjudicated on the merits; or waived at trial, on appeal, or in a previous 2 PCR proceeding. Ariz. R. Crim. P. 32.2(a). However, neither the preclusion rule nor the 3 timeliness requirement apply if a claim is based on certain enumerated exceptions, including 4 newly-discovered material facts, significant change in the law, and actual innocence. Ariz. 5 R. Crim. P. 32.1(e), (g) & (h); 32.2(b); 32.4(a). When such a claim is to be raised in a 6 successive or untimely PCR petition, 7 8 9 10 the notice of post-conviction relief must set forth the reasons for not raising the claim in the previous petition or in a timely manner. If the specific exception and meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner, the notice shall be summarily dismissed. Ariz. R. Crim. P. 32.2(b) (emphasis added.) 11 Here, Petitioner included Claim 34 in a successive notice of PCR, urging that the 12 claim met one or more of the exceptions to the preclusion and timeliness rules. In a brief 13 order, the PCR court disagreed and summarily dismissed the notice, stating: “None of these 14 claims come within the exceptions to the timeliness requirement of Rule 32.4(a), Arizona 15 Rules of Criminal Procedure. They either were or could have been raised on direct appeal 16 or in the prior Rule 32 proceedings.” (Dkt. 145, Ex. B.) Standing alone, the language in the 17 second sentence – that claims were or could have been previously raised – is considered an 18 ambiguous invocation of Arizona’s preclusion rule and is inadequate to bar federal review. 19 See Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir. 1996); Valerio v. Crawford, 306 F.3d 742, 20 774-75 (9th Cir. 2002) (en banc); Koerner v. Grigas, 328 F.3d 1039, 1049-50 (9th Cir. 2003). 21 However, as urged by Respondents in response to Petitioner’s motion to amend to add Claim 22 34 (Dkt. 147 at 6-7), the first sentence of the PCR court’s ruling clearly invokes the separate 23 Rule 32.4(a) time bar. 24 Petitioner contends that the PCR court’s ruling did not involve two separate 25 procedural bars but one intertwined finding that the claims were untimely because they were 26 or could have been raised in a prior proceeding. While the preclusion rule applies to claims 27 previously adjudicated or waived for failure to raise them in a previous proceeding, nothing 28 - 42 - 1 in Arizona’s timeliness rule suggests that timeliness is dependent on whether a claim was or 2 could have been raised previously; in other words, preclusion does not make a claim 3 untimely or except a claim from the timeliness requirement. Indeed, the Arizona Supreme 4 Court has expressly held that timeliness and preclusion are two separate procedural bars, see 5 Moreno v. Gonzalez, 192 Ariz. 131, 133, 135, 962 P.2d 205, 207, 209 (1998), either or both 6 of which may serve as a basis for summarily denying PCR claims. Thus, the Court concludes 7 that the PCR court’s first sentence invoking the Rule 32.4(a) time bar is not rendered 8 ambiguous by virtue of the second sentence’s reference to preclusion. 9 When a State pleads the existence of an adequate and independent bar as an 10 affirmative defense, as Respondents did, the burden shifts to the petitioner to put the defense 11 at issue. See Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2002). “The petitioner may 12 satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy 13 of the state procedure, including citation to authority demonstrating inconsistent application 14 of the rule.” Id. The State bears the ultimate burden of demonstrating that the rule is 15 adequate in that it has been regularly and consistently applied. Id. 16 In reply to the State’s opposition to his motion to amend to add Claim 34, Petitioner 17 alleged that Arizona’s time bar is not adequate and requested an opportunity for additional 18 briefing on the subject if the Court were considering ruling on that basis. Having revisited 19 this issue and determined that the PCR court clearly applied a time bar, the Court will allow 20 the requested briefing. Petitioner’s brief shall be comprehensive in that it shall not rely on 21 the initial briefing set forth in his reply regarding the motion to amend but shall encompass 22 the entirety of his argument in support of meeting his burden as set forth in Bennett. 23 Respondents’ response shall include any rebuttal to Petitioner’s arguments regarding 24 inadequacy of Arizona’s time bar, as well as all arguments in support of their ultimate burden 25 regarding the adequacy of the rule. 26 27 Accordingly, IT IS ORDERED that Petitioner’s Motion for Leave to File Third 28 - 43 - 1 Amended Petition (Dkt. 176) is DENIED. 2 IT IS FURTHER ORDERED that the following claims are DISMISSED WITH 3 PREJUDICE: Claims 3, 4, 6, 9, 12, 15, 18-26, and 28 on the merits; Claims 16, 27, and 29 4 as procedurally barred; and Claim 31 as not cognizable. 5 6 IT IS FURTHER ORDERED that Claim 30 is DISMISSED WITHOUT PREJUDICE as premature and not yet ripe for review. 7 IT IS FURTHER ORDERED that within thirty (30) days of the file date of this 8 Order, Petitioner shall file a brief regarding the adequacy of Arizona Rule of Criminal 9 Procedure 32.4(a) as a bar to federal review. 10 11 IT IS FURTHER ORDERED that within thirty (30) days of the file date of Petitioner’s brief, Respondents shall file a responsive brief. 12 IT IS FURTHER ORDERED that if, pursuant to LRCiv 7.2(g), either party files a 13 Motion for Reconsideration of this Order, such motion shall be filed within fifteen (15) days 14 of the filing of this Order. The filing and disposition of such motion shall not toll the time 15 for the briefing schedule set forth above. 16 IT IS FURTHER ORDERED that the Clerk of Court forward a copy of this Order 17 to Rachelle M. Resnick, Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, 18 AZ 85007-3329. 19 DATED this 12th day of December, 2008. 20 21 22 23 24 25 26 27 28 - 44 -

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