Kayer v. Schriro, No. 2:2007cv02120 - Document 55 (D. Ariz. 2009)

Court Description: MEMORANDUM OF DECISION AND ORDER that Petitioner's 35 Amended Petition for Writ of Habeas Corpus is denied. The Clerk shall enter judgment accordingly. It is further ordered that Petitioner's 46 Motion for evidentiary development, is denied; that the stay of execution entered by this Court on 11/05/07, Dkt. 5, is VACATED. IT IS FURTHER ORDERED GRANTING a Certificate of Appealability as to the following issues (see attached pdf). The Clerk of Court forward a courtesy copy of this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329. Signed by Judge David G Campbell on 10/19/09. (NOTE: See attached pdf for complete details) (ESL)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 George Russell Kayer, ) ) Petitioner, ) ) ) vs. ) ) ) ) Charles L. Ryan, et al.,1 ) Respondents. ) __________________________________ No. CV 07-2120-PHX-DGC DEATH PENALTY CASE MEMORANDUM OF DECISION AND ORDER 15 16 Petitioner George Kayer, a state prisoner under sentence of death, has filed an 17 Amended Petition for Writ of Habeas Corpus. Dkt. 35.2 Petitioner alleges, pursuant to 28 18 U.S.C. § 2254, that he is imprisoned and sentenced in violation of the United States 19 Constitution. He has also filed a motion for evidentiary development. Dkt. 46. For the 20 reasons set forth below, the Court concludes that Petitioner is not entitled to habeas relief or 21 evidentiary development. BACKGROUND 22 23 In 1997, a jury in Yavapai County convicted Petitioner of first degree murder for 24 taking the life of Delbert L. Haas. The following facts concerning the circumstances of the 25 crime and Petitioner s trial are derived from the opinion of the Arizona Supreme Court 26 27 28 1 Charles L. Ryan, Interim Director of the Arizona Department of Corrections, is substituted as Respondent pursuant to Federal Rule of Civil Procedure 25(d). 2 Dkt. refers to numbered documents in this Court s electronic case docket. 1 affirming Petitioner s conviction and sentence, State v. Kayer, 194 Ariz. 423, 427-30, 984 2 P.2d 31, 35-38 (1999), and from this Court s review of the record. 3 On December 3, 1994, two couples searching for Christmas trees on a dirt road in 4 Yavapai County discovered a body, later identified as that of Delbert L. Haas. Haas had 5 been shot twice, once behind each ear. On December 12, 1994, Yavapai County Detective 6 Danny Martin received a phone call from Las Vegas police officer Larry Ross. Ross told 7 Martin that a woman named Lisa Kester had approached a security guard at the Pioneer Hotel 8 in Laughlin, Nevada, and said that her boyfriend, Petitioner, had killed a man in Arizona. 9 Kester also indicated that a warrant had been issued for Petitioner s arrest in relation to a 10 different crime, a fact Las Vegas police officers later confirmed. Kester gave Las Vegas 11 officers the gun she said was used to kill Haas and led them to credit cards belonging to Haas 12 that were found inside a white van in the hotel parking lot. 13 During her interaction with the officers, Kester appeared agitated. She told them she 14 had not come forward sooner because she feared Petitioner would kill her, and asked to be 15 placed in the witness protection program. Kester described Petitioner s physical appearance 16 and agreed to accompany an officer to the police station. 17 Hotel security guards and Las Vegas police officers soon spotted Petitioner leaving 18 the hotel. The officers arrested Petitioner and took him to the police station for questioning. 19 Kester had already been arrested for carrying a concealed weapon. Detectives Martin and 20 Roger Williamson flew to Las Vegas on December 13 to interrogate Kester and Petitioner. 21 Kester gave a complete account of the events that led to Haas s death. Petitioner spoke 22 briefly with the detectives before invoking his right to counsel. 23 Kester s statements to Detectives Martin and Williamson formed the basis of the 24 State s prosecution of Petitioner. She said Petitioner continually bragged about a gambling 25 system he had devised to beat the Las Vegas casinos, but neither Petitioner nor Kester had 26 money with which to gamble. Petitioner earned some money selling t-shirts, jewelry, and 27 knickknacks at swap meets. His only other income came from using fake identities to bilk 28 -2- 1 the government of benefits. Petitioner learned that Haas had recently received money from 2 an insurance settlement. He and Kester visited Haas at his house near Cordes Lakes late in 3 November 1994. Kester said that Petitioner convinced Haas to go gambling with them. On 4 November 30, 1994, Petitioner, Kester, and Haas left for Laughlin, Nevada, in Petitioner s 5 van. 6 The three stayed in the same hotel room in Laughlin. After the first night of 7 gambling, Petitioner claimed to have won big. Haas agreed to loan Petitioner about $100 8 of his settlement money so that Petitioner could further utilize his gambling system. 9 Petitioner s system proved unsuccessful and he lost all of the money Haas had given him. 10 Petitioner again told Haas that he had won big, but claimed that someone had stolen his 11 winnings. Kester asked Petitioner what they were going to do now that they were out of 12 money. Petitioner said he was going to rob Haas. When Kester asked how Petitioner was 13 going to get away with robbing someone he knew, Petitioner replied, I guess I ll just have 14 to kill him. 15 The three left Laughlin to return to Arizona on December 2, 1994. On the road, all 16 three consumed alcohol, especially Haas. Petitioner and Haas argued over how Petitioner 17 was going to repay Haas. The van made several stops for bathroom breaks and to purchase 18 snacks. At one of these stops, Petitioner took a gun that he stored under the seat of the van 19 and put it in his pants. Petitioner asked Kester if she was going to be all right with this. 20 Kester said she wanted Petitioner to warn her before he killed Haas. 21 Petitioner traveled on a series of back roads that he claimed would be a shortcut to 22 Haas s house. Eventually, he stopped the van near Camp Wood Road in Yavapai County. 23 At this stop, Kester said Haas exited the van and began urinating behind it. Kester started 24 to climb out of the van as well, but Petitioner motioned to her with the gun and pushed her 25 back into the vehicle. The van had windows in the rear and on each side through which 26 Kester viewed what occurred next. Petitioner walked quietly up to Haas from behind while 27 he was urinating and shot him behind the ear at point-blank range. He dragged the body off 28 the side of the road to the bushes where it was eventually found, then returned to the car -3- 1 carrying Haas s wallet, watch, and jewelry. 2 Petitioner and Kester began to drive away in the van when Petitioner realized that he 3 had forgotten to retrieve Haas s house keys. He turned the van around and returned to the 4 murder scene. Kester and Petitioner both looked for the body. Kester spotted it and then 5 returned to the van. Petitioner returned to the van, too, and asked for the gun, saying that 6 Haas did not appear to be dead. Kester said Petitioner approached Haas s body and that she 7 heard a second shot. 8 Petitioner and Kester then drove to Haas s home. Petitioner entered the home and 9 removed several guns, a camera, and other items of personal property. He attempted 10 unsuccessfully to find Haas s PIN number in order to access Haas s bank accounts. 11 Petitioner and Kester sold Haas s guns and jewelry at pawn shops and flea markets over the 12 course of the next week, usually under the aliases of David Flynn and Sharon Hughes. They 13 then traveled to Laughlin where Petitioner used the proceeds from selling Haas s property 14 to test his gambling system again and to pay for a room at the Pioneer Hotel. Kester 15 approached the Pioneer Hotel security guard and reported the shooting. 16 On December 29, 1994, a grand jury indicted Petitioner and Kester on several charges, 17 including premeditated first degree murder and felony first degree murder. In February 1995, 18 the State filed a notice that it would seek the death penalty against both Petitioner and Kester. 19 In September 1995, Kester entered into a plea agreement with the State. In exchange for her 20 truthful testimony, the original charges would be dropped and Kester would be charged with 21 several lesser counts including facilitation to commit first degree murder. 22 Petitioner was tried in March 1997. His defense centered on the claim that Kester 23 alone had killed Haas and was now framing Petitioner for the murder. The State presented 24 evidence that corroborated Kester s testimony and discredited Petitioner s testimony. The 25 jury convicted Petitioner of all charges, finding him guilty of first degree murder under both 26 premeditated and felony murder theories. 27 At sentencing, the trial judge, Yavapai County Superior Court Judge William T. 28 Kiger, found two aggravating factors: that Petitioner had previously been convicted of a -4- 1 serious offense, pursuant to A.R.S. § 13-703(F)(2), and that the murder was committed for 2 pecuniary gain under § 13-703(F)(5). Dkt. 36, Ex. A. Judge Kiger found that Petitioner had 3 failed to establish any statutory mitigating factors and had proved only one nonstatutory 4 mitigator. Id. After weighing the aggravating and mitigating factors, the judge sentenced 5 Petitioner to death. Id. 6 The Arizona Supreme Court affirmed the convictions and sentences. Kayer, 194 Ariz. 7 423, 984 P.2d 31. Petitioner filed a petition for postconviction relief ( PCR ) with the trial 8 court.3 PCR Pet., filed 6/6/05. Judge Kiger dismissed a number of claims as precluded and, 9 following an evidentiary hearing on Petitioner s claims of ineffective assistance of counsel, 10 denied the PCR petition. Dkt. 36, Exs. B, C. Petitioner filed a petition for review ( PR ), 11 PR doc. 9, which the Arizona Supreme Court denied. APPLICABLE LAW 12 13 Because it was filed after April 24, 1996, this case is governed by the Antiterrorism 14 and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (AEDPA). Lindh v. Murphy, 521 15 U.S. 320, 336 (1997); see also Woodford v. Garceau, 538 U.S. 202, 210 (2003). 16 PRINCIPLES OF EXHAUSTION AND PROCEDURAL DEFAULT 17 Under the AEDPA, a writ of habeas corpus cannot be granted unless it appears that 18 the petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see 19 Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). To 20 exhaust state remedies, the petitioner must fairly present his claims to the state s highest 21 court in a procedurally appropriate manner. O Sullivan v. Boerckel, 526 U.S. 838, 848 22 (1999). 23 A claim is fairly presented if the petitioner has described the operative facts and the 24 federal legal theory on which his claim is based so that the state courts have a fair 25 26 27 28 3 An earlier PCR notice had been vacated when initial PCR counsel failed to file a timely petition (Case No. CR-02-0048-PC). Counsel withdrew, new counsel were appointed, and a new PCR notice was filed (Case No. CR-07-0163-PC). -5- 1 opportunity to apply controlling legal principles to the facts bearing upon his constitutional 2 claim. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 3 (1971). Unless the petitioner clearly alerts the state court that he is alleging a specific federal 4 constitutional violation, he has not fairly presented the claim. See Casey v. Moore, 386 F.3d 5 896, 913 (9th Cir. 2004). A petitioner must make the federal basis of a claim explicit either 6 by citing specific provisions of federal law or federal case law, even if the federal basis of 7 a claim is self-evident, Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), or by citing 8 state cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 9 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). 10 In Arizona, there are two primary procedurally appropriate avenues for petitioners to 11 exhaust federal constitutional claims: direct appeal and PCR proceedings. Rule 32 of the 12 Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner 13 is precluded from relief on any claim that could have been raised on appeal or in a prior PCR 14 petition. Ariz. R. Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a) may be avoided 15 only if a claim falls within certain exceptions (subsections (d) through (h) of Rule 32.1) and 16 the petitioner can justify why the claim was omitted from a prior petition or not presented in 17 a timely manner. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(b), 32.4(a). 18 A habeas petitioner s claims may be precluded from federal review in two ways. 19 First, a claim may be procedurally defaulted in federal court if it was actually raised in state 20 court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. 21 at 729-30. Second, a claim may be procedurally defaulted if the petitioner failed to present 22 it in state court and the court to which the petitioner would be required to present his claims 23 in order to meet the exhaustion requirement would now find the claims procedurally barred. 24 Id. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (district court must 25 consider whether the claim could be pursued by any presently available state remedy). 26 Therefore, in the present case, if there are claims which have not been raised 27 previously in state court, the Court must determine whether Petitioner has state remedies 28 currently available to him pursuant to Rule 32. See Ortiz, 149 F.3d at 931 (district court must -6- 1 consider whether the claim could be pursued by any presently available state remedy). If no 2 remedies are currently available, petitioner s claims are technically exhausted but 3 procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1. 4 In addition, if there are claims that were fairly presented in state court but found 5 defaulted on state procedural grounds, such claims also will be found procedurally defaulted 6 in federal court so long as the state procedural bar was independent of federal law and 7 adequate to warrant preclusion of federal review. See Harris v. Reed, 489 U.S. 255, 262 8 (1989). It is well established that Arizona s preclusion rule is independent of federal law, 9 see Stewart v. Smith, 536 U.S. 856, 860 (2002), and the Ninth Circuit has repeatedly 10 determined that Arizona regularly and consistently applies its procedural default rules such 11 that they are an adequate bar to federal review of a claim. See Ortiz, 149 F.3d at 932 (Rule 12 32.2(a)(3) regularly followed and adequate); Poland v. Stewart, 117 F.3d 1094, 1106 (9th 13 Cir. 1997) (same); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir. 1996) (previous 14 version of Arizona s preclusion rules adequate ). 15 Nonetheless, because the doctrine of procedural default is based on comity, not 16 jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted 17 claims. Reed v. Ross, 468 U.S. 1, 9 (1984). As a general matter, however, the Court will not 18 review the merits of procedurally defaulted claims unless a petitioner demonstrates legitimate 19 cause for the failure to properly exhaust in state court and prejudice from the alleged 20 constitutional violation, or shows that a fundamental miscarriage of justice would result if 21 the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750. 22 Ordinarily, cause to excuse a default exists if a petitioner can demonstrate that 23 some objective factor external to the defense impeded counsel s efforts to comply with the 24 State s procedural rule. Id. at 753. Objective factors which constitute cause include 25 interference by officials that makes compliance with the state s procedural rule 26 impracticable, a showing that the factual or legal basis for a claim was not reasonably 27 available to counsel, and constitutionally ineffective assistance of counsel. Murray v. 28 Carrier, 477 U.S. 478, 488 (1986); King v. LaMarque, 455 F.3d 1040, 1045 (9th Cir. 2006). -7- 1 Prejudice is actual harm resulting from the alleged constitutional error or violation. 2 Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). To establish prejudice resulting from 3 a procedural default, a habeas petitioner bears the burden of showing not merely that the 4 errors at his trial constituted a possibility of prejudice, but that they worked to his actual and 5 substantial disadvantage, infecting his entire trial with errors of constitutional dimension. 6 United States v. Frady, 456 U.S. 152, 170 (1982). 7 STANDARD FOR HABEAS RELIEF 8 For properly exhausted claims, the AEDPA established a substantially higher 9 threshold for habeas relief with the acknowledged purpose of reducing delays in the 10 execution of state and federal criminal sentences. Schriro v. Landrigan, 550 U.S. 465, 475 11 (2007) (quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003)). The AEDPA s highly 12 deferential standard for evaluating state-court rulings . . . demands that state-court decisions 13 be given the benefit of the doubt. Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per 14 curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). 15 16 17 18 19 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. 20 21 28 U.S.C. § 2254(d). The relevant state court decision is the last reasoned state decision 22 regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. 23 Nunnemaker, 501 U.S. 797, 803-04 (1991)). 24 The threshold question under AEDPA is whether [a petitioner] seeks to apply a rule 25 of law that was clearly established at the time his state-court conviction became final. 26 Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under subsection 27 (d)(1), the Court must first identify the clearly established Federal law, if any, that governs 28 the sufficiency of the claims on habeas review. Clearly established federal law consists -8- 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, 76 (2006). 3 Habeas relief cannot be granted if the Supreme Court has not broken sufficient legal 4 ground on a constitutional principle advanced by a petitioner, even if lower federal courts 5 have decided the issue. Williams, 529 U.S. at 381; see Musladin, 549 U.S. at 77. 6 Nevertheless, while only Supreme Court authority is binding, circuit court precedent may be 7 persuasive in determining what law is clearly established and whether a state court applied 8 that law unreasonably. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 9 The Supreme Court has provided guidance in applying each prong of § 2254(d)(1). 10 The Court has explained that a state court decision is contrary to the Supreme Court s 11 clearly established precedents if the decision applies a rule that contradicts the governing law 12 set forth in those precedents, thereby reaching a conclusion opposite to that reached by the 13 Supreme Court on a matter of law, or if it confronts a set of facts that is materially 14 indistinguishable from a decision of the Supreme Court but reaches a different result. 15 Williams, 529 U.S. at 405-06; see Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). In 16 characterizing the claims subject to analysis under the contrary to prong, the Court has 17 observed that a run-of-the-mill state-court decision applying the correct legal rule to the 18 facts of the prisoner s case would not fit comfortably within § 2254(d)(1) s contrary to 19 clause. Williams, 529 U.S. at 406. 20 Under the unreasonable application prong of § 2254(d)(1), a federal habeas court 21 may grant relief where a state court identifies the correct governing legal rule from [the 22 Supreme] Court s cases but unreasonably applies it to the facts of the particular . . . case or 23 unreasonably extends a legal principle from [Supreme Court] precedent to a new context 24 where it should not apply or unreasonably refuses to extend that principle to a new context 25 where it should apply. Williams, 529 U.S. at 407. For a federal court to find a state court s 26 application of Supreme Court precedent unreasonable under § 2254(d)(1), the petitioner 27 must show that the state court s decision was not merely incorrect or erroneous, but 28 objectively unreasonable. Id. at 409; Visciotti, 537 U.S. at 25. -9- 1 Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state 2 court decision was based on an unreasonable determination of the facts. Miller-El v. Dretke, 3 545 U.S. 231, 240 (2005) (Miller-El II). A state court decision based on a factual 4 determination will not be overturned on factual grounds unless objectively unreasonable in 5 light of the evidence presented in the state-court proceeding. Miller-El I, 537 U.S. at 340; 6 see Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). In considering a challenge under 7 2254(d)(2), state court factual determinations are presumed to be correct, and a petitioner 8 bears the burden of rebutting this presumption by clear and convincing evidence. 28 9 U.S.C. § 2254(e)(1); Miller-El II, 545 U.S. at 240. But only the state court s factual findings, 10 not its ultimate decision, are subject to § 2254(e)(1) s presumption of correctness. Miller-El 11 I, 537 U.S. at 341-42. DISCUSSION 12 13 PROCEDURAL ANALYSIS 14 Petitioner has raised 30 claims. Respondents contend that only five of the claims are 15 properly exhausted. Dkt. 36 at 1. For the reasons set forth below, the Court finds that 16 Claims 1(B)(1), 1(B)(2), 1(B)(3), 1(B)(5), 13-21, 24, and 26 are procedurally barred and will 17 not be considered on the merits. The Court will address procedural issues with respect to the 18 remaining claims as necessary. 19 Claim 1 20 Petitioner raises five subclaims alleging ineffective assistance of counsel during the 21 guilt and penalty phases of his trial. Dkt. 35 at 20. Respondents concede that subclaim 22 1(B)(4), alleging ineffective assistance at sentencing, is exhausted, but contend that the 23 remaining subclaims were not exhausted in state court and are procedurally barred. Dkt. 36 24 at 25-26. 25 In subclaims 1(B)(1), 1(B)(2), and 1(B)(3), Petitioner alleges, respectively, that he 26 was denied effective assistance of counsel because his attorneys failed to conduct an 27 immediate and thorough investigation; his first lead counsel failed to seek second counsel 28 in a timely manner and second counsel, when appointed, undertook little work on Petitioner s - 10 - 1 behalf; and neither of his lead attorneys was qualified to defend a capital case. In subclaim 2 1(B)(5), Petitioner alleges that he was denied effective assistance of counsel during death 3 qualification of the jury. 4 In his PCR petition, Petitioner raised two claims of ineffective assistance of counsel, 5 alleging that counsel failed to conduct an adequate mitigation investigation and that counsel 6 performed ineffectively during voir dire. PCR Pet. at 32, 37. In his petition for review to the 7 Arizona Supreme Court, Petitioner included only the claim that counsel s performance was 8 ineffective with respect to mitigation. PR doc. 9. In neither filing did Petitioner raise a claim 9 that his rights were violated by counsel s performance at the guilt stage of trial as alleged in 10 Claims 1(B)(1), 1(B)(2), or 1(B)(3). If Petitioner were to return to state court and attempt 11 to exhaust these claims, the claims would be found waived and untimely under Rules 12 32.2(a)(3) and 32.4(a) of the Arizona Rules of Criminal Procedure because they do not fall 13 within an exception to preclusion. See Ariz. R. Crim. P. 32.2(b); 32.1(d)-(h). Therefore, 14 subclaims 1(B)(1), 1(B)(2), and 1(B)(3) are technically exhausted but procedurally 15 defaulted because Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 16 732, 735 n.1. Petitioner does not attempt to show cause and prejudice or a fundamental 17 miscarriage of justice. 18 Claim 1(B)(5) is also procedurally defaulted. In Arizona, fair presentation requires 19 that capital petitioners present their allegations not only to the PCR court but also to the 20 Arizona Supreme Court upon denial of relief. See O Sullivan, 526 U.S. at 848; Swoopes v. 21 Sublett, 196 F.3d 1008 (9th Cir. 1999) (per curiam) (capital petitioners must seek review in 22 Arizona Supreme Court to exhaust claims). In his petition for review, Petitioner did not 23 include his claim regarding counsel s performance during voir dire. See PR doc. 9. 24 Therefore, he did not fairly present the claim to the Arizona Supreme Court. Petitioner may 25 not exhaust the claim now because he does not have an available state court remedy. 26 Petitioner does not assert that cause and prejudice or a fundamental miscarriage of justice 27 excuse the default of these subclaims. Therefore, subclaims 1(B)(1), 1(B)(2),1(B)(3), and 28 1(B)(5) are denied as procedurally barred. - 11 - 1 2 3 Claims 13-21, 26 Petitioner raised these claims for the first time in his PCR petition. PCR Pet. at 3-9, 40-46. Judge Kiger denied them as [p]recluded by Rule 32.2(a)(3). Dkt. 36, Ex. B. 4 Rule 32.2(a)(3) constitutes a regularly followed and adequate state procedural bar. 5 See Ortiz, 149 F.3d at 932. Petitioner nonetheless argues that the PCR ruling was 6 ambiguous and therefore insufficient to constitute a clear express invocation of a state 7 procedural rule permitting preclusion. Dkt. 40 at 49. According to Petitioner, it is not clear 8 whether the PCR court believed the claims should have been raised on direct appeal or in his 9 prior PCR petition. Id. at 45-46. Petitioner cites no authority for the proposition that this 10 alleged ambiguity renders the invocation of Rule 32.2(a)(3) inadequate as a procedural bar, 11 and the Court is unconvinced. There is no ambiguity either in the PCR court s citation to 12 Rule 32.2(a)(3) as the sole basis for finding the claims precluded or in the language of the 13 Rule itself, which states that a claim is precluded if it was waived at trial, on appeal, or in 14 any previous collateral proceeding. Nothing in the rule requires the state court to 15 specifically identify the proceeding in which the waiver occurred. Moreover, given that the 16 first PCR notice was vacated before a petition was filed, there is no question that the PCR 17 court s ruling referred to Petitioner s failure to raise the claims on direct appeal. 18 As cause for the default of Claims 13, 14, 16, 17, 19, and 20, Petitioner asserts 19 ineffective assistance of appellate counsel. See, e.g., Dkt. 40 at 39. Ineffective assistance 20 of counsel may constitute cause for failing properly to exhaust claims in state court and 21 excuse procedural default. Ortiz, 149 F.3d at 932. To meet the cause requirement, 22 however, the ineffective assistance must amount to an independent constitutional violation. 23 Id.; see also Coleman, 501 U.S. at 755 ( We reiterate that counsel s ineffectiveness will 24 constitute cause only if it is an independent constitutional violation. ). As explained below 25 with respect to Claim 22, Petitioner has failed to show that appellate counsel performed at 26 a constitutionally ineffective level. Therefore, he cannot establish cause for the default of 27 the claims. Claims 13-21 and 26 are denied as procedurally barred. 28 - 12 - 1 Claim 24 2 Petitioner alleges that the State improperly withheld exculpatory and impeachment 3 evidence in violation of Brady v. Maryland. Dkt. 35 at 129. As Respondents note, Petitioner 4 never presented this claim in state court. Dkt. 36 at 89. Because no state remedies remain, 5 the claim is technically exhausted but procedurally defaulted. Petitioner does not allege 6 cause and prejudice or a fundamental miscarriage of justice. Claim 24 is denied as 7 procedurally barred. 8 MERITS ANALYSIS 9 Claim 1(B)(4): 10 Petitioner alleges that he was denied effective assistance of counsel at sentencing 11 because his attorneys failed to conduct an immediate and thorough mitigation investigation. 12 Dkt. 35 at 45. 13 Background 14 Pretrial, trial, and sentencing 15 Petitioner was indicted on December 29, 1994. On January 6, 1995, Linda 16 Williamson was appointed to represent him. RT 1/6/95 at 3.4 Williamson was under a 17 contract with Yavapai County to represent indigent defendants and had been an attorney for 18 nearly five years with significant experience in criminal law, although she had not tried a 19 capital murder case. RT 3/22/06 at 7-8, 44. 20 Williamson asked James Bond, an experienced criminal attorney, to serve as second 21 chair, with the intent that he would focus on mitigation and sentencing. RT 3/15/06 at 25, 22 47; RT 3/22/06 at 45-46. When Bond agreed to serve as second-chair, he understood that the 23 trial would not occur for a long time; his involvement in the case was minimal. RT 3/22/06 24 25 26 27 28 4 RT refers to the court reporter s transcript. ROA refers to the record on appeal from trial and sentencing prepared for Petitioner s direct appeal to the Arizona Supreme Court (Case. No. CR-97-0280-AP). ME refers to the minute entries of the trial court. Certified copies of the trial and post-conviction records were provided to this Court by the Arizona Supreme Court on May 12, 2009. Dkt. 50. - 13 - 1 at 48. Although Williamson never focused on the sentencing phase of trial, she spoke with 2 Petitioner about mitigation in a general way. RT 3/22/06 at 32. 3 Williamson filed a number of pretrial motions, including one requesting a Rule 11 4 pre-screening psychiatric examination of Petitioner. Id. at 50; ROA 30. The court appointed 5 Dr. Daniel Barack Wasserman to conduct the examination. Id. at 53-54. Dr. Wasserman 6 concluded that Petitioner did not suffer from an identifiable mental illness or defect, although 7 some test results were suggestive of a paranoid or depressive disorder. PCR pet., Ex. 6. 8 Based on Dr. Wasserman s evaluation, the trial court found Petitioner competent to stand 9 trial and no further evaluations took place. RT 3/22/06 at 57. 10 After investigating leads and interviewing witnesses, Williamson concluded that the 11 case would be difficult to win. RT 3/22/06 at 46; RT 3/16/06 at 98. She believed that delay 12 was her best option, hoping that Kester, the State s key witness, who was pregnant with 13 Petitioner s child, would begin using drugs again, abscond, or otherwise become unavailable 14 to testify. RT 3/22/06 at 47-48. 15 In June 1996, Petitioner sought to remove Williamson and replace her with Bond as 16 lead counsel. The State wanted the case to proceed to trial, the trial court wanted to schedule 17 a firm July trial date, and Bond was adamant that he could not be appointed lead counsel due 18 to his heavy case load. RT 6/19/96 at 1-20; RT 3/30/06 at 122. Two days later, after further 19 discussion, the court allowed Williamson to withdraw, directed Bond to remain as second- 20 chair, and appointed David Stoller, the next contract attorney in line for capital cases, as lead 21 counsel. RT 6/21/96 at 9. 22 At the time of his appointment, Stoller had been practicing criminal law for nearly 30 23 years, both as a prosecutor and a defense attorney. RT 3/15/06 at 57-60. As a prosecutor, 24 he had taken 50 felony cases to jury trial, including one capital case. Id. at 58. 25 In August, the trial court allowed Bond to withdraw. RT 8/20/96 at 3. Petitioner 26 subsequently requested that Marc Victor be appointed to replace Bond. RT 3/ 15/06 at 90; 27 RT 3/16/06 at 38. Victor had represented Petitioner on another criminal matter. Id. He was 28 appointed as second counsel. At the time, he had about two years of experience as a lawyer. - 14 - 1 In January 1997, defense counsel filed a number of motions, including an ex parte 2 application for funds to further investigate the crime and to conduct a mitigation 3 investigation. ROA 107A. At the time of Petitioner s trial, requests for certain defense 4 expenses were required to be made to the Yavapai County presiding judge. See RT 3/15/06 5 at 113. 6 investigation but deferred ruling on the request for funds relating to mitigation. ME 2/24/97; 7 RT 2/24/97 at 3-8. Judge Weaver stated that he would wait to see if there was a conviction 8 before he would authorize funds for a mitigation investigation. RT 3/15/06 at 115. Judge Weaver, the presiding judge, granted additional funds for the crime 9 The trial began on March 5, 1997. The jury returned its verdict on March 26. The 10 court scheduled the aggravation/mitigation hearing for May 27, with a sentencing date of 11 June 17, 1997. ME 3/26/97. 12 On April 8, 1997, at Stoller s request, Judge Weaver authorized $6,000 for mitigation 13 specialist Mary Durand to begin an investigation. ME 4/8/97. The order provided that the 14 amount was not to be exceeded without prior authorization. Id. Counsel subsequently 15 argued that Durand needed additional time to conduct her mitigation investigation; the court 16 continued the aggravation/mitigation hearing to June 24, and set sentencing for July 15, 17 1997. RT 5/16/97 at 13-14. 18 The court held a status conference on June 6. Defense counsel Victor informed the 19 court that Durand had met twice with Petitioner, but that she needed an additional three to 20 six months to complete her investigation. RT 6/6/97 at 10. Victor also told the court that 21 Petitioner objected to such a continuance, explaining that Petitioner understands exactly 22 what is going on. He understands the nature of putting the mitigation case on. He 23 understands that that would be to some extent compromised, if myself and Mr. Stoller are not 24 able to push back the date. Id. at 11. Next, lead counsel Stoller, who wanted to make a 25 good record of the issue, id. at 14, indicated that Petitioner understood Durand s position 26 that potentially significant areas of mitigation needed to be explored.5 Id. at 12. Petitioner, 27 28 5 Stoller appeared at the hearing telephonically. See RT 6/6/97 at 8. - 15 - 1 however, simply didn t want to wait in the county jail and have that kind of diet and not 2 have access to things to read and television, and things of that nature. Id. Based in part 3 upon this life-style choice, and against Stoller s best advice and strong 4 recommendation, id. at 13, Petitioner had informed counsel that he would not waive time 5 to allow Durand to complete her investigation. Id. at 12. 6 7 8 9 10 The court next addressed Petitioner directly. Petitioner detailed his reasoning as follows: In speaking with Mary Durand, I had no idea what a mitigation specialist was before I sat down and talked to her. Didn t know what they looked for, didn t know what she was looking for in this case with me or with my life. We talked as has been indicated on two separate occasions for several hours. There isn t any major areas of investigation that are open or available to her that her and I have discussed [sic]. 11 12 13 These areas that Mr. Stoller brings out that he is calling substantial evidence, from what I understand in my conversation with Mary Durand, she is talking about a fetal alcohol syndrome that possibly existed. She hasn t had the opportunity to investigate it, and some minor areas and details in my life that I personally can t see how they would relate to mitigation in this case. 14 16 So it s with reservations when Mr. Stoller talks about vital areas and evidence that can be used in mitigation. It s a personal difference, and certainly of opinion [sic]. I m saying I don t see anything here of substantial value. Obviously, Mr. Stoller is saying that he does. 17 Id. at 15-16. Petitioner also explained that Durand had told him that she would testify at the 18 aggravation/mitigation hearing and do her best even if she was unable to complete her 19 investigation. Id. at 16. Petitioner then continued to detail his rationale for objecting to a 20 further continuance: 15 21 22 I don t think that I don t think that some people understand exactly where I m at. It certainly hasn t been presented here, and I don t want to turn this into a mitigation hearing, but I feel that there s a few things that need to be said today in view of where we re at. 23 24 25 26 27 One of them is that I don t have a death wish. I m not trying to manipulate the Court to such a position that they have no alternative but to decide to give me the death penalty. I don t feel the lack of Mary Durand s mitigation is going to be a major factor in the decision. Id. at 17. Judge Kiger, explaining that he would look favorably on a request for an additional 28 - 16 - 1 30 days or something like that, though not a continuance of 90 or 180 days, directly asked 2 Petitioner if he wished to continue the June 24 aggravation/mitigation hearing. Id. at 20-21. 3 Petitioner responded that he understood the court s position but was not in favor of any 4 more continuances. Id. at 21. Petitioner explained, Believe me, if I thought that that 5 Miss Durand had valid evidence that should be presented to this Court, I d be scratching and 6 clawing and asking for 180 days. Id. 7 Citing Petitioner s waiver of a continuance and its effect on their ability to represent 8 him, counsel moved to withdraw. Id. at 25. The court denied the motion. Id. at 25-26. At 9 the end of the hearing, at defense counsel s request, the court rescheduled the 10 aggravation/mitigation hearing for July 8 while maintaining the sentencing date of July 15. 11 Id. at 30. 12 Counsel filed a sentencing memorandum on Petitioner s behalf. ROA 166. In arguing 13 against a death sentence, counsel offered one statutory mitigating factor and several 14 nonstatutory circumstances: intoxication causing an inability to appreciate the wrongfulness 15 of one s conduct under A.R.S. § 13-703(G)(1); intoxication not rising to the level of the 16 (G)(1) factor; Petitioner s military record; the disparity in sentences between Petitioner and 17 Kester; Petitioner s poor physical health; his intelligence and ability to contribute to society; 18 and his devotion to his mentally disabled son. Id. at 12-17. 19 At the July 8 aggravating/mitigation hearing, defense counsel called four witnesses: 20 a corrections officer who testified briefly about Petitioner s non-disruptive conduct and his 21 work with other inmates in the law library; Petitioner s mother and sister; and Mary Durand. 22 Petitioner and his son also made statements to the court. 23 Sherry Rottau, Petitioner s mother, testified that his father, an aeronautical engineer, 24 died when Petitioner was in kindergarten. RT 7/8/97 at 12. Rottau remarried when 25 Petitioner was in high school. Id. at 13. When Petitioner was 15 the family relocated to 26 Arkansas for a year before moving back to California where he graduated from high school. 27 Id. at 14. In school Petitioner earned Bs and Cs and some As. Id. at 15. He was an 28 ambitious child who earned money by mowing lawns and shining shoes. Id. at 16. Rottau - 17 - 1 testified that Petitioner was sick a lot as a child with colds, the flu, and earaches; he was also 2 hyperactive and had trouble sleeping. Id. at 16-17. 3 After high school Petitioner joined the Navy and got married. Id. at 21. He began 4 exhibiting manic depressive behavior following his military service. Id. at 22-23. He would 5 work for 24 hours straight and then sleep for a long period of time; he would start projects 6 only to abandon them and become depressed. Id. Rottau was concerned about these cycles 7 of happiness and depression. Id. at 24. 8 Rottau also testified that Petitioner had a history of heart problems. Id. at 25-26. 9 Finally, she testified about the close relationship between Petitioner and his son, Tayo. Id. 10 at 29-31. 11 Jean Hopson, Petitioner s older sister, testified that his father had drinking and 12 gambling problems and that Petitioner suffered difficulties in those areas as well. Id. at 34- 13 37. Hopson described Petitioner s mental state as consisting of highs and lows and testified 14 that he had been diagnosed as bipolar, had experienced a nervous breakdown, and been 15 treated with lithium. Id. at 36, 38, 41-43. She also described a loving relationship between 16 Petitioner and Tayo. Id. at 40. 17 Mary Durand testified about the role of a mitigation specialist, which is to develop a 18 social history of the defendant in order to determine family dynamics, . . . mental, medical, 19 emotional, familial, nutritional, and social factors, and behaviors that the defendant has been 20 involved in and exposed to throughout the course of his life. Id. at 46-47. Durand 21 explained that a mitigation specialist investigates social and educational, medical, marital, 22 sexual, any kind of issue that presents itself that gives us an idea of who the client is that 23 we re dealing with, specifically to look at impairment. Id. at 47. She testified that the 24 average number of hours needed to complete a mitigation investigation is ideally between 25 2,500 and 5,000, but as a practical matter between 1,000 and 1,500 hours . . . begins to 26 approach a competent test and reliability. Id. at 50. According to Durand, a mitigation 27 specialist must attempt to get every piece of information you can, including medical and 28 mental health records, military records, school records, and court documents. Id. at 49, 51. - 18 - 1 Durand testified that she met with Petitioner twice for a total of six or seven hours. 2 Id. at 52. She also met with his mother twice, his sister once, his uncle twice, and his son 3 once. Id. at 53. She reviewed the presentence reports from Petitioner s criminal cases. Id. 4 Durand did not obtain any of Petitioner s psychiatric, medical, school, or military records 5 because Petitioner was not interested in having the world know about his life. 6 Id. at 54. 6 Concerning Petitioner s reluctance to allow a full-scale mitigation investigation, Durand 7 explained: 8 9 10 11 12 We talked for an extraordinarily long period of time, just about the issue of allowing me the time I needed to do an appropriate, complete and reliable mitigation on his behalf. He had very, very strong feelings where the fact that he had been in jail two years and . . . five months at that time, and was not willing to wait another year. I was very direct with him, and I told him I couldn t do it in three weeks or six weeks or eight weeks, or three months, and he is very concerned about his emotional health, his physical health, and catching a new case, if you will, being in this particular environment for that period of time. 13 14 15 16 17 He was very concerned about putting his family through any emotional, public hearing. He was concerned about his son. His mother is 76 and not in good health and has serious memory lapses, and he was concerned that he would add to her already fragile medical state, and he just didn t want to put anybody through this process. He felt like they ve been through enough, and he didn t want to add to that. Id. at 56-57. 18 Durand then testified that if Petitioner had been willing to allow additional time she 19 would have investigated several areas of potential mitigation, foremost among them the issue 20 of Petitioner s mental health. Id. at 59. Durand stated that there s definitely very serious 21 indications of serious psychiatric difficulties, including a diagnosis of bipolar disorder and 22 an incident in which he was hospitalized with suicide ideation. Id. at 59-60. Durand also 23 testified, citing reports of alcohol abuse in Petitioner s family background, that she would 24 have investigated the issue of alcoholism and poly-substance abuse. Id. at 60. Finally, she 25 would have further investigated Petitioner s physical health based on reports that his mother 26 27 28 6 Petitioner did sign a waiver for the release of his military records, but at the time of the hearing Durand had not yet received them. RT 7/8/97 at 56. - 19 - 1 experienced a difficult pregnancy and labor and that Petitioner was a sickly child. Id. at 61- 2 62. Durand indicated that Petitioner s educational record does appear to be good in that 3 there are areas in which he clearly is quite brilliant and very, very well-spoken. Id. at 62. 4 Durand reiterated that Petitioner did not want to talk about the proposed areas of 5 mitigation. Id. at 62. She concluded that, in addition to Petitioner s unwillingness to spend 6 additional time in the county jail and his reluctance to expose his mother and son to further 7 legal proceedings, he did not wish to pursue a mitigation investigation due to his pride, 8 dignity, and desire not to relive his past. Id. at 63. 9 10 11 At the conclusion of the aggravation/mitigation hearing, after listening to Durand s testimony, the trial court engaged in the following colloquy with Petitioner: Court: 12 13 Change your mind about what you told me last time as far as go ahead with sentencing on the 15th of July? Do you want more time? By asking you the question, I m basically saying if you tell me right now that you ve considered it, and you want more time, I m prepared to give you more time. But I think you re an intelligent individual. You know what she s just testified to. I believe strongly that an individual ought to have the ability to make some decisions on their own, if they have gotten all the information and have the requisite intelligence. 14 15 16 You got the information, you got the intelligence, you ve talked to your counsel, you ve heard Ms. Durand. Your call. 17 18 Petitioner: I appreciate your patience and your concern in this, and I have not changed my feeling. Thank you. 19 20 Id. at 71. 21 In addition to the testimony from the aggravation/mitigation hearing, Judge Kiger, in 22 sentencing Petitioner, reviewed information contained in the presentence report. PCR Pet., 23 Ex. 26. The report discussed Petitioner s mental health, describing an incident when he 24 became extremely depressed, had near suicide attempts [and] in September of 1989, he had 25 been diagnosed as Manic Depressive at the Phoenix VA Hospital ; it further indicated that 26 Petitioner had been prescribed lithium. Id. at 7. The report also noted Petitioner s substance 27 abuse history, including the fact that he was a heavy abuser of alcohol. Id. 28 The trial court also reviewed, along with Dr. Wasserman s Rule 11 report, the results - 20 - 1 of a mental status examination prepared in 1990 by Dr. Jeffrey Penney, a psychiatrist from 2 Prescott. RT 7/15/98 at 38; see Dkt. 52, Attach. Dr. Penney reported that Petitioner 3 described experiencing symptoms of mania and depression with intermittent suicidal 4 ideation ; Petitioner indicated that he was presently taking lithium and an anti-depressant. 5 Dkt. 52, Attach. at 1. Dr. Penney noted that drug and alcohol use were often associated with 6 the manic episodes described by Petitioner. Id. Petitioner reported a history of heavy 7 alcohol usage throughout his life and informed Dr. Penney that he currently drank 3 six- 8 packs a week and would drink more if he could afford to do so. Id. Dr. Penney observed 9 that Petitioner experienced notable gaps in his memory and that his [i]nsight seemed 10 mildly impaired and judgment impaired based on his continued alcohol abuse with 11 depression and with symptoms consistent with some alcohol-induced memory dysfunction. 12 Id. at 2. Dr. Penney also reported that Petitioner carried a cyanide pill with him at all times, 13 including during the evaluation, in the event he wanted to commit suicide. Id. Dr. Penney 14 diagnosed Petitioner with amphetamine, marijuana, and alcohol abuse, as well as depression 15 probably secondary to alcohol intake. Id. at 3. Because Petitioner would not authorize the 16 release of his medical records, Dr. Penny reached a rule out diagnosis of Bipolar Affective 17 Disorder. Id. 18 At the sentencing hearing on July 15, the court engaged in another colloquy with 19 Petitioner, explaining that if you told me you wanted more time, as your attorneys were 20 requesting, as Miss Durand had requested, to find additional information and evidence to 21 present to me, . . . I would certainly grant it. RT 7/15/97 at 3. Judge Kiger next outlined 22 the applicable provisions of the death penalty statute and indicated that he was prepared to 23 find two aggravating circumstances. Id. at 4. The court then asked Petitioner if, with that 24 information in mind, he wished to proceed with sentencing. Id. at 5. While Petitioner 25 consulted with counsel, the court elaborated: 26 27 This is a very, very important decision, and I want Mr. Kayer to make it based upon discussion with counsel and reflection, and I want him to have as much information as possible. I hope he understands what I have just reviewed with him, and if there is any question about that, I d be happy to 28 - 21 - 1 respond. 2 Before I officially get into the sentencing of this matter, if that s I will tell you this, if Mr. Kayer, after review, still wants to go ahead with sentencing today, I m ready to proceed. On the other hand, if Mr. Kayer believes that he needs to ask for additional time, I am willing to do it that way. 3 4 5 Id. at 6. 6 The court took a recess to allow further consultation. Id. at 6. After the recess 7 Petitioner indicated that he understood the information provided by the court, but that he 8 wished to proceed with sentencing. Id. at 6-7. 9 In his special verdict, Judge Kiger found that the intentional and knowing decisions 10 and actions of the defendant have blocked the attempts by his trial counsels [sic] to fully 11 pursue mitigation pursuant to 13-703(G)(1) and the court is unable to find that any such 12 factor has been proven by a preponderance of the evidence. Dkt. 36, Ex. A at 2. The court 13 found that no statutory mitigating circumstances existed. Id. at 2-3. The court then 14 considered Petitioner s proffered nonstatutory mitigating circumstances, finding that 15 Petitioner had proved that he was an important figure in the life of his son. Id. at 3. The 16 court found that the remaining nonstatutory circumstances had not been proved, explaining, 17 in relevant part: 18 2. 20 The defendant was apparently diagnosed and treated for a time for a mental condition referred to as a bipolar or manic/depressive problem. The court can speculate as to a possible relationship between such a condition and the murder; the court cannot find a relationship by a preponderance of the evidence. 21 .... 19 22 4. The defendant has apparently had some level of addiction to both gambling and alcohol. There is no dispute that the defendant consumed several beers on the trip from Laughlin to the place where the murder took place. As with #2 above, there may be some possible connection between such a condition and the murder such that it effected [sic] the defendant s ability or capacity to conform his conduct with the requirements of the law. It would be at best speculation by the court and is not found by a preponderance of the evidence. 5. The Rule 11 evaluation conducted by Dr. Wasserman in 1995 found some unusual results in the MMPI and some possible problems with 23 24 25 26 27 28 - 22 - paranoia. As with #2 above, there may be some possible connection between such a condition and the murder such that it effected [sic] the defendant s ability or capacity to conform his conduct with the requirements of the law. It would be at best speculation by the court and is not found by a preponderance of the evidence. 1 2 3 4 6. 5 6 7 8 There have been references to the defendant having suicide thoughts. Apparently at one time, the defendant carried a cyanide pill to the office of a doctor who was performing a mental health evaluation. His explanation was that he would use the pill if he decided it was needed. The court has considered the possibility that the defendant has determined to block the attempts by his attorneys to present mitigation as a way of now bringing about his death. This too is speculation by the court and does not rise to the point of proof by a preponderance of the evidence. 9 Id. at 3-4. 10 Judge Kiger concluded that [s]ince these factors have not been proven, the court 11 cannot find these factors applicable to the sentencing structure called for in 13-703. These 12 factors as considered have essentially no weight to balance against the aggravating factors. 13 Id. at 5. 14 On appeal, the Arizona Supreme Court agreed with the trial court s assessment of the 15 mitigating evidence: 16 17 Defendant s alleged mental impairment on the day he murdered Haas, whether attributed to historical substance abuse or a mental disorder, also must be considered as a nonstatutory mitigating circumstance. 18 .... 19 20 21 22 But the record shows that the existence of impairment, from any source, is at best speculative. Further, in addition to offering equivocal evidence of mental impairment, defendant offered no evidence to show the requisite causal nexus that mental impairment affected his judgment or his actions at the time of the murder. Thus, we conclude that the trial court ruled correctly that impairment was not established as a nonstatutory mitigating factor by a preponderance of the evidence. 23 24 Kayer, 194 Ariz. at 438, 984 P.2d at 46 (citations omitted). 25 Postconviction proceedings 26 In March 2006, Judge Kiger held an evidentiary hearing on Petitioner s ineffective 27 assistance claims. The hearing lasted nine days. Petitioner called 17 witnesses, including 28 each of the attorneys who had represented him at trial, along with Ms. Durand and his current - 23 - 1 mitigation specialist. He also presented expert testimony from a clinical neuropsychologist, 2 a forensic psychiatrist, and a physician specializing in addiction medicine. Finally, several 3 family members and a friend testified about Petitioner s family background, problems with 4 alcohol abuse and gambling, and mental health issues.7 5 Lead counsel Stoller testified that the defense plan was to obtain mitigating 6 information and present a full mitigation case, including mental health evidence, through 7 Durand s investigation; she would gather the information and submit it to the appropriate 8 experts. RT 3/15/06 at 148-49. Petitioner, however, did not want the continuance necessary 9 to allow such an investigation, nor did he want to explore issues concerning his metal health 10 because, as Durand informed Stoller, he felt they would cause him to be viewed as weak 11 and vacillating in prison. RT 3/16/06 at 76. Petitioner also thought it wouldn t make any 12 difference. Id. at 100. In addition, he believed that his living conditions would improve 13 in prison because he would have smoking and television privileges. Id. at 103. Thus, 14 Stoller testified, the defense team was prevented from developing more mitigation by 15 Petitioner s waiver of a continuance. Id. at 78. Nevertheless, Stoller went to Phoenix to visit 16 Petitioner s mother, son, and sister, and later had contact with other family members. Id. at 17 91, 99. He asked Petitioner s mother for a history of Petitioner s life. Id. at 165. Later, 18 Stoller discussed mitigation with Petitioner s mother and explained that bad is good for 19 purposes of mitigation. Id. at 173-74. 20 Second-chair Victor testified that he and Stoller had intended to pursue Petitioner s 21 mental health as mitigating evidence. RT 3/22/06 at 49. Victor tried to disabuse Petitioner 22 of the notion that to pursue mitigation was tantamount to admitting guilt. Id. at 59-60. 23 Victor testified that he spoke in great detail with Petitioner until he was assured that 24 25 26 27 7 In addition, Larry Hammond, a local attorney with capital case experience, testified as an expert on the Strickland standard. In his opinion, Petitioner s trial counsel performed at a constitutionally ineffective level. See, e.g., RT 3/23/06 at 27, 93, 96-97; PCR Pet., Ex. 32. 28 - 24 - 1 Petitioner understood the nature and purpose of mitigation evidence. Id at 79. Petitioner 2 explained to Victor why he did not wish to delay sentencing in order to pursue mitigation: 3 first, he was very close to his mother and son and thus he was very adverse [sic] to having 4 things about his past . . . brought out in front of them, and so he was very adverse [sic] to 5 having them exposed to that information and he was not willing to cooperate with 6 mitigation. Id. at 88. Petitioner also cited the fact that he had been in the county jail for an 7 extended period and he looked forward to the benefits of prison, primarily television and 8 smoking privileges; he perceived that whatever time he had to spend in the Department of 9 Corrections would be more pleasurable than the time he had been spending in the Yavapai 10 County Jail. Id. Victor argued as persuasively as I could, on many occasions to convince 11 Petitioner to allow an investigation. Id. at 90. He was also hopeful that Durand would be 12 able to change Petitioner s mind by outlining the scope of a full mitigation investigation and 13 explaining that in his case persuasive mitigation information existed. Id. at 91. Victor 14 adamantly opposed Petitioner s decision to waive a continuance, but believe[d] Mr. Kayer 15 understood things and had a rational position and didn t want to put his family through 16 mitigation. Id. at 92. 17 Mary Durand testified that Petitioner was motivated to waive a continuance based on 18 fear for his emotional and physical well being in the county jail. According to Durand, he 19 wanted desperately to get out. RT 3/29/06 at 72, 73. Nevertheless, despite his reluctance 20 to pursue mitigation, Petitioner provided contact information for family members and 21 executed some releases for documentary evidence. Id. at 76. Durand explained the purpose 22 of mitigation to Petitioner, who became upset that counsel had waited so long to begin an 23 investigation. Id. at 79-80. Notwithstanding their conversations, Durand felt Petitioner had 24 only a minimal understanding of [the] scope and breadth and depth of mitigation. Id. at 25 122. 26 Keith Rohman, Petitioner s post-conviction mitigation specialist, testified that a 27 mitigation investigation should begin immediately, in part because it is necessary to educate 28 the client and overcome his initial reluctance to present mitigating evidence. Rohman - 25 - 1 testified that Petitioner s decision not to cooperate with the mitigation investigation was 2 based on several factors: he did not have a clear understanding of mitigation, about which 3 his lawyers had failed to educate him; he was very concerned about the situation at the 4 Yavapai Jail ; he was frustrated with his attorneys for having waited so long ; he believed 5 that the presentation of mitigation was an admission of guilt; and he thought that offering 6 mitigating evidence would be futile. Id. at 61-64. Rohman testified that there were four 7 areas of mitigation that trial counsel omitted or left insufficiently developed: Petitioner s 8 bipolar disorder, alcoholism, pathological gambling, and his transient living situation as a 9 child. Id. at 68-78. Rohman then outlined his findings with respect to each of these areas. 10 Id. Finally, Rohman testified about the violent, overcrowded conditions of the Yavapai 11 County Jail. Id. at 81-88. He also noted that the jail failed to provide Petitioner with the 12 special diet recommended for his heart condition. Id. at 89. 13 Petitioner presented testimony from a number of experts. Dr. Anne Marie Herring, 14 a clinical neuropsychologist, testified that Petitioner had an average IQ (102) and that, with 15 one exception, the results of the tests she administered were normal. RT 3/17/06 at 29; see 16 PCR Pet., Ex. 39. The exception was one of the card sorting tests, designed to measure 17 complex problem solving abilities, on which Petitioner achieved a low-average or borderline 18 score. Id. at 37-38. This result was indicative of a cognitive deficit. Id at 38. According to 19 Dr. Herring, such a deficit would be consistent with various etiologies, including chronic 20 heavy substance abuse, bipolar disorder, and traumatic brain injury. Id. 21 Dr. Barry Morenz, a forensic psychiatrist, diagnosed Petitioner with the following 22 conditions: bipolar type 1, hypomanic; alcohol dependence; personality disorder with 23 schizotypal, narcissistic, and antisocial features; and, citing Dr. Herring s test results, 24 cognitive disorder not otherwise specified. RT 3/17/06 at 94-95; see PCR Pet., Ex. 33. Dr. 25 Morenz testified that Petitioner s cognitive disorder interfered with his capacity to address 26 his other conditions, impairing his ability to recover from his alcohol and gambling 27 addictions. Id. at 105. At the time of the murder, according to Dr. Morenz, all of these 28 conditions were manifesting themselves and combined to make Petitioner very, very - 26 - 1 impaired. Id. at 107. 2 Dr. Morenz further testified that Petitioner was enjoying his life in prison, where he 3 had completed and published one book and was working on two others. Id. at 109-110. He 4 enjoyed receiving fan mail for his writing. Id. His laundry and trash were picked up and his 5 meals were provided. Id. Dr. Morenz characterized Petitioner s positive state of mind as 6 unrealistic and a function of his hypomania. Id. 7 Dr. Michel Sucher, a physician specializing in addiction medicine, diagnosed 8 Petitioner with alcohol dependence, polysubstance abuse, and pathological gambling. RT 9 3/30/06 at 16; see PCR Pet., Ex. 34. 10 Several lay witnesses testified, including Petitioner s sister, two cousins, an aunt, and 11 a friend. Their testimony indicated that several of Petitioner s relatives also suffered from 12 mental health issues, including manic and depressive episodes. According to this testimony, 13 Petitioner s maternal cousin was institutionalized in a psychiatric facility, where she was 14 initially diagnosed with schizophrenia and later with manic depressive disorder. RT 3/24/06 15 at 63. Her mother had also experienced severe mood swings. Id. at 68. Petitioner s maternal 16 aunt had a history of hearing voices, as did her grandfather and sister. RT 3/31/06 at 6-7. 17 Petitioner s other maternal aunt suffered from depression. Id. 18 The testimony of these witnesses further indicated that Petitioner had longstanding 19 issues with substance abuse and gambling, as did other family members. See, e.g., RT 20 3/24/06 at 66; RT 3/31/06 at 41. Pete Decell, a friend and coworker with whom Petitioner 21 had committed a series of residential burglaries, testified that Petitioner had been a heavy 22 drinker. RT 3/29/06 at 50. He also stated that Petitioner did not like to work and had gotten 23 a rush from committing the burglaries. Id. at 32. 24 Judge Kiger, presiding over the PCR proceedings, rejected Petitioner s claim of 25 ineffective assistance of counsel at sentencing. Judge Kiger determined at the time of 26 sentencing, the defendant voluntarily prohibited his attorneys from further pursuing and 27 presenting any possible mitigating evidence. Dkt. 36, Ex. C at 2. He ruled that Petitioner 28 had failed to demonstrate deficient performance, explaining that trial counsel did not fall - 27 - 1 below the Strickland standard for effective representation concerning potential mitigation. 2 Id. at 1. This finding was based on the judge s own observations of the defendant during 3 trial and the sentencing phase and the Arizona Supreme Court s determination that 4 Petitioner was competent when he waived a further mitigation investigation and that the 5 waiver was knowing and voluntary. Id. at 2. Judge Kiger also found that Petitioner had not shown that he was prejudiced by 6 7 counsel s performance: This court further concludes that if there had been a finding that the performance prong of the Strickland standard had been met, that no prejudice to the defendant can be found. In stating this conclusion the court has considered the assertion of mental illness, jail conditions, childhood development, and any alcohol or gambling addictions. 8 9 10 11 Id. at 2. 12 Analysis 13 Petitioner contends that the PCR court s rejection of this claim constituted an 14 unreasonable application of clearly established federal law and was based on an unreasonable 15 determination of the facts. Dkt. 37 at 46-47. The Court does not agree. 16 The clearly established federal law governing claims of ineffective assistance of 17 counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under 18 Strickland, a petitioner must show that counsel s representation fell below an objective 19 standard of reasonableness and that the deficiency prejudiced the defense. 466 U.S. at 687- 20 88. 21 In assessing whether counsel s performance was deficient under Strickland, the test 22 is whether counsel s actions were objectively reasonable at the time of the decision. Id. at 23 689-90. A petitioner must overcome the presumption that, under the circumstances, the 24 challenged action might be considered sound trial strategy. Id. at 689. The question is not 25 whether another lawyer, with the benefit of hindsight, would have acted differently, but 26 whether counsel made errors so serious that counsel was not functioning as the counsel 27 guaranteed the defendant by the Sixth Amendment. Babbitt v. Calderon, 151 F.3d 1170, 28 1173 (9th Cir. 1998) (quoting Strickland, 466 U.S. at 687). - 28 - 1 While trial counsel has a duty to make reasonable investigations or to make a 2 reasonable decision that makes particular investigations unnecessary, . . . a particular 3 decision not to investigate must be directly assessed for reasonableness in all the 4 circumstances, applying a heavy measure of deference to counsel s judgments. Id. at 691. 5 In making this assessment, the court must conduct an objective review of [counsel s] 6 performance, measured for reasonableness under prevailing professional norms, which 7 includes a context-dependent consideration of the challenged conduct as seen from counsel s 8 perspective at the time. Wiggins v. Smith, 539 U.S. 510, 523 (2003) (citation and quotation 9 marks omitted). The Supreme Court has instructed that [i]n judging the defense s 10 investigation, as in applying Strickland generally, hindsight is discounted by pegging 11 adequacy to counsel s perspective at the time investigative decisions are made and by 12 applying deference to counsel s judgments. Rompilla v. Beard, 545 U.S. 374, 381 (2005) 13 (quoting Strickland, 466 U.S. at 689). 14 With respect to Strickland s second prong, a petitioner must affirmatively prove 15 prejudice by show[ing] that there is a reasonable probability that, but for counsel s 16 unprofessional errors, the result of the proceeding would have been different. A reasonable 17 probability is a probability sufficient to undermine confidence in the outcome. Strickland, 18 466 U.S. at 694. The Strickland Court explained that [w]hen a defendant challenges a death 19 sentence . . . the question is whether there is a reasonable probability that, absent the errors, 20 the sentencer . . . would have concluded that the balance of aggravating and mitigating 21 circumstances did not warrant death. 466 U.S. at 695. In Wiggins, 539 U.S. at 534, the 22 Court noted that [i]n assessing prejudice, we reweigh the evidence in aggravation against 23 the totality of available mitigating evidence. The totality of the available evidence includes 24 both that adduced at trial, and the evidence adduced in the habeas proceeding. Id. at 536 25 (quoting Williams v. Taylor, 529 U.S. at 397-98). 26 Under the AEDPA, this Court s review of the state court s decision is subject to 27 another level of deference. Bell v. Cone, 535 U.S. 685, 698-99 (2002); see Knowles v. 28 Mirzayance, 129 S. Ct. 1411, 1420 (2009) (noting that a doubly deferential standard - 29 - 1 applies to Strickland claims under AEDPA). Therefore, to prevail on this claim, Petitioner 2 must make the additional showing that the state court s ruling that counsel was not 3 ineffective constituted an objectively unreasonable application of Strickland. 28 U.S.C. § 4 2254(d)(1). 5 In reviewing Petitioner s allegations of ineffective assistance, this Court further notes 6 that the judge who presided over Petitioner s trial and sentencing also presided over the PCR 7 proceedings. Thus, in considering Petitioner s ineffective assistance claims, Judge Kiger was 8 already familiar with the record and the evidence presented at trial and sentencing. This 9 familiarity with the record provides the Court an additional reason to extend deference to the 10 state court s ruling. See Smith v. Stewart, 140 F.3d 1263, 1271 (9th Cir. 1998). As the Ninth 11 Circuit explained in Smith, when the judge who presided at the post-conviction proceeding 12 is the same as the trial and sentencing judge, the court is considerably less inclined to order 13 relief because doing so might at least approach a looking-glass exercise in folly. Id. 14 (quoting Gerlaugh v. Stewart, 129 F.3d 1027, 1036 (9th Cir. 1997)). 15 Finally, because an ineffective assistance of counsel claim must satisfy both prongs 16 of Strickland, the reviewing court need not determine whether counsel s performance was 17 deficient before examining the prejudice suffered by the defendant as a result of the alleged 18 deficiencies. 466 U.S. at 697 ( if it is easier to dispose of an ineffectiveness claim on the 19 ground of lack of sufficient prejudice . . . that course should be followed ). 20 Petitioner is not entitled to relief because Judge Kiger did not apply Strickland s 21 second prong in an unreasonable manner when he determined that Petitioner failed to prove 22 that he was prejudiced by counsel s performance.8 First, under Schriro v. Landrigan, 550 23 U.S. 465, Petitioner cannot show prejudice because he waived an extension of the sentencing 24 date and thereby waived presentation of the full-scale mitigation case that defense counsel 25 26 27 28 8 Because this claim is more readily resolved on the basis of lack of prejudice, see Strickland, 466 U.S. at 697, the Court makes no finding regarding the alleged deficiency of trial counsel s performance at sentencing. - 30 - 1 and mitigation specialist Durand had intended to develop and present. Next, Petitioner 2 cannot show prejudice because the evidence produced during the PCR proceedings, which 3 was the product of an exhaustive mitigation investigation, was largely cumulative of the 4 evidence presented at sentencing and fell short of the type of mitigation information that 5 would have influenced the sentencing decision. See id. at 481. Finally, the reasonableness 6 of the PCR court s rejection of this claim is buttressed by the fact that Judge Kiger had 7 presided over Petitioner s trial and sentencing and was therefore ideally situated, 8 Landrigan, 550 U.S. at 476, to gauge the validity of Petitioner s waiver and to weigh the 9 totality of the mitigating evidence against the evidence presented at sentencing. See 10 Gerlaugh, 129 F.3d at 1036. 11 In Landrigan, the petitioner refused to allow defense counsel to present the testimony 12 of his ex-wife and birth mother as mitigating evidence. He also interrupted as counsel tried 13 to proffer other evidence and told the Arizona trial judge that he did not wish to present any 14 mitigating evidence and to bring on the death penalty. The court sentenced him to death and 15 the sentence was affirmed on direct appeal. State v. Landrigan, 176 Ariz. 1, 859 P.2d 111 16 (1993). The PCR court rejected Landrigan s request for a hearing and denied his claim that 17 counsel was ineffective for failing to conduct further investigation into mitigating 18 circumstances, finding that he had instructed counsel at sentencing not to present any 19 mitigating evidence at all. Landrigan then filed a federal habeas petition. The district court 20 denied the petition and refused to grant an evidentiary hearing because Landrigan could not 21 make out a colorable claim of ineffective assistance of counsel. A panel of the Ninth Circuit 22 affirmed the denial. Landrigan v. Stewart, 272 F.3d 1221 (9th Cir. 2001). The en banc Ninth 23 Circuit reversed, holding that counsel s performance at sentencing was ineffective. 441 F.3d 24 638 (9th Cir. 2006). According to the court, Landrigan s last-minute decision could not 25 excuse counsel s failure to conduct an adequate investigation prior to sentencing. Id. at 647. 26 The court then reiterated its view that a lawyer s duty to investigate [mitigating 27 circumstances] is virtually absolute, regardless of a client s expressed wishes. Id. 28 The Supreme Court reversed. Schriro v. Landrigan, 550 U.S. 465. The Court held - 31 - 1 that the district court did not abuse its discretion in failing to hold an evidentiary hearing on 2 Landrigan s claim of sentencing-stage ineffectiveness and that the court was within its 3 discretion in denying the claim based on Landrigan s unwillingness to present mitigation evidence. 4 Landrigan compels the conclusion that Petitioner is not entitled to habeas relief. 5 Landrigan establishes the standard for evaluating a sentencing-stage ineffective assistance 6 claim brought by a petitioner who directed counsel not to pursue a case in mitigation. If 7 [the petitioner] issued such an instruction, counsel s failure to investigate further could not 8 have been prejudicial under Strickland. Id. at 475; see Owen v. Guida, 549 F.3d 399, 406 9 (6th Cir. 2008) ( a client who interferes with her attorney s attempts to present mitigating 10 evidence cannot then claim prejudice based on the attorney s failure to present that 11 evidence ); see also Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir. 2007) ( Neither the 12 Supreme Court nor this court has ever held that a lawyer provides ineffective assistance by 13 complying with the client s clear and unambiguous instructions to not present evidence. ); 14 Lovitt v. True, 403 F.3d 171, 179 (4th Cir. 2005) ( Lovitt is correct to insist that a client s 15 decision in this regard should be an informed one. At the same time, Lovitt s lawyers were 16 hardly ineffective for incorporating their client s wishes into their professional judgment. ); 17 Rutherford v. Crosby, 385 F.3d 1300, 1313-14 (11th Cir. 2004) ( [U]nder Strickland the duty 18 is to investigate to a reasonable extent . . . and that duty does not include a requirement to 19 disregard a mentally competent client s sincere and specific instructions about an area of 20 defense and to obtain a court order in defiance of his wishes. ); Jeffries v. Blodgett, 5 F.3d 21 1180, 1198 (9th Cir. 1993) ( [C]ounsel for Jeffries had been prepared to present evidence in 22 mitigation and had discussed with Jeffries the ramifications of failing to present the evidence. 23 Accordingly, counsel did not deprive Jeffries of effective assistance in acquiescing in the 24 latter s considered decision. ). 25 In Petitioner s case, prior to his conviction, counsel performed only a limited 26 investigation into mitigating evidence. When funding for a mitigation specialist was 27 authorized, Mary Durand began a full-scale investigation. Counsel planned to use the 28 information she gathered to retain further experts, including mental health professionals. - 32 - 1 While Durand s investigation was still in its early stages, Petitioner indicated that he did not 2 wish to delay the sentencing date. His waiver of a continuance a continuance the trial court 3 was prepared to grant was based on several factors, including an unwillingness to involve 4 his family in an investigation into his background and a belief that no valuable information 5 could be obtained. By the date of sentencing, when he was offered a final opportunity to 6 rescind his waiver and allow additional investigation, Petitioner was fully informed of the 7 nature, scope, and purpose of mitigating information, having spoken with counsel and 8 Durand and having heard Durand s detailed testimony at the aggravation/mitigation hearing. 9 After being afforded several opportunities by the judge to obtain a continuance, Petitioner 10 chose to proceed to sentencing without a complete mitigation investigation. 11 Despite Petitioner s position, the defense investigation continued until the date of the 12 aggravation/mitigation hearing, which had been extended at counsel s request. At the 13 hearing, counsel presented testimony concerning Petitioner s childhood, alcohol dependence, 14 gambling addiction, mental health history, and positive character traits and conduct. 15 Given all of these circumstances, Petitioner s claim for relief is even less persuasive 16 than Landrigan s. Petitioner s waiver of a continuance was neither equivocal nor last- 17 minute. The record demonstrates that he was fully aware of the consequences of his decision 18 and persisted in that decision even after counsel s attempts to change his mind, exposure to 19 Durand s testimony detailing the elements and potential benefits of a full-scale mitigation 20 investigation, and repeated opportunities afforded by the court to reconsider his decision. 21 His waiver did not prevent counsel from investigating and presenting a mitigation case within 22 the parameters Petitioner had set. Therefore, under the clearly-established law set forth in 23 Landrigan, Petitioner is not entitled to relief. 24 The second factor dictating a conclusion that Petitioner has not demonstrated 25 prejudice is the nature of the new mitigating information. At Petitioner s sentencing, counsel 26 offered what amounted to an outline of the mitigation case presented during the PCR 27 proceedings. The information later presented by PCR counsel supported the mitigating 28 circumstances proffered at sentencing, including Petitioner s alcohol dependence, gambling - 33 - 1 addiction, and bipolar disorder. It also added a new diagnosis that Petitioner suffers from a 2 cognitive deficit affecting his complex reasoning skills. 3 In his special verdict, Judge Kiger found that several of the nonstatutory mitigating 4 factors advanced by defense counsel, including Petitioner s alcohol and gambling problems 5 and his bipolar condition, had not been proved and therefore were not weighty. Dkt. 36, Ex. 6 A at 3-5. In his PCR order, Judge Kiger considered all of the new evidence, but determined 7 that Petitioner had not been prejudiced by counsel s performance at sentencing. Dkt. 36, Ex. 8 C at 2. To obtain relief, Petitioner must show that Judge Kiger s determination was not 9 merely incorrect, but unreasonable a substantially higher threshold. Landrigan, 550 U.S. 10 at 473. 11 The reasonableness of Judge Kiger s ruling is supported by several considerations. 12 First, most of the new mitigating evidence, while more detailed than the information offered 13 at sentencing, duplicated the evidence already presented. See Babbit, 151 F.3d at 1176 (no 14 prejudice where evidence omitted at sentencing was largely cumulative of the evidence 15 actually presented ). Thus, it did not alter the basic sentencing profile originally provided 16 to the judge. See Strickland, 466 U.S. at 699-700; see also Henley v. Bell, 487 F.3d 379, 17 387-88 (6th Cir. 2007) (no prejudice resulting from counsel s failure to call a psychiatric 18 expert to testify during sentencing phase of capital murder trial that defendant had learning 19 disabilities, had dropped out of school, and at the time of the offense was depressed and 20 acting out of character). To the extent that the new evidence supported a diagnosis that 21 Petitioner suffered from a cognitive deficit, that diagnosis was the product of a single test 22 result, which was the only indication that Petitioner was not within the normal range with 23 respect to brain function. Moreover, Dr. Herring, who performed the test, did not herself 24 make a diagnosis of cognitive deficit; nor could she say whether any such deficit was in place 25 at the time of the murder, more than 10 years earlier. RT 3/17/06 at 41, 52. Therefore, the 26 only new category of mitigating information was of limited impact. 27 Thus, in contrast to cases such as Rompilla, Wiggins, and Williams, where counsel s 28 failure to investigate mitigating evidence prejudiced the defendant, the omitted mitigation - 34 - 1 evidence about Petitioner s background and mental health was relatively weak. Landrigan, 2 550 U.S. at 481. For example, in Rompilla, counsel failed to present evidence that his client 3 was beaten by his father with fists, straps, belts, and sticks; that his father locked him and his 4 brother in a dog pen filled with excrement; and that he grew up in a home with no indoor 5 plumbing and was not given proper clothing. 545 U.S. at 391-92. In Wiggins, counsel failed 6 to present evidence that the defendant suffered consistent abuse during the first six years of 7 his life, was the victim of physical torment, sexual molestation, and repeated rape during 8 his subsequent years in foster care, was homeless for portions of his life, and had diminished 9 mental capacities. 539 U.S. at 535. In Williams, counsel failed to discover records 10 graphically describing Williams s nightmarish childhood, including the fact that he had 11 been committed at age 11, had suffered dramatic mistreatment and abuse during his early 12 childhood, and was borderline mentally retarded. 529 U.S. at 370-71, 395. See also 13 Stankewitz v. Woodford, 365 F.3d 706, 717-19 (9th Cir. 2004) (prejudice existed where 14 omitted evidence showed that Stankewitz was exposed to extreme deprivation and abuse 15 from his family and in a variety of foster homes, was borderline retarded, and suffered from 16 significant brain dysfunction). In Landrigan itself, the Court described as poor quality, and 17 therefore not supportive of a colorable claim of ineffective assistance, omitted mitigating 18 evidence indicating that the petitioner suffered from fetal alcohol syndrome with attendant 19 cognitive and behavioral defects, was abandoned by his birth mother, was raised by an 20 alcoholic adoptive mother, began abusing alcohol and drugs at an early age, and had a 21 genetic predisposition to violence. 550 U.S. at 480. 22 By contrast, the evidence presented to the PCR court simply corroborated Petitioner s 23 alcohol dependence, gambling addiction, and bipolar disorder, while adding a diagnosis of 24 cognitive deficit that was neither significant nor well supported. It was not unreasonable for 25 Judge Kiger to find that this evidence was not persuasive enough to have produced a 26 different sentence. See id.; see also Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005) ( to 27 establish prejudice, the new evidence that a habeas petitioner presents must differ in a 28 substantial way in strength and subject matter from the evidence actually presented at - 35 - 1 sentencing ). In sum, the mitigation case presented during the PCR proceedings establishes 2 at most the wholly unremarkable fact that with the luxury of time and the opportunity to 3 focus resources on specific parts of a made record, post-conviction counsel will inevitably 4 identify shortcomings in the performance of prior counsel. Turner v. Crosby, 339 F.3d 5 1247, 1279 (11th Cir. 2003) (quoting Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 6 1995)). 7 Finally, the reasonableness of Judge Kiger s ruling is supported by the fact that he had 8 presided at Petitioner s sentencing and was familiar with the record and the efforts of trial 9 counsel. During the PCR proceedings, the judge was presented with the results of an 10 exhaustive mitigation investigation. He denied relief, again finding that Petitioner had 11 waived additional mitigation and failed to show prejudice. The Ninth Circuit has commented 12 on the appropriate review of cases where the judge considering a claim of ineffective 13 assistance was also the judge who presided over trial and sentencing. In Gerlaugh, the court 14 denied an ineffective assistance claim and rejected the petitioner s request for an evidentiary 15 hearing in state court, explaining: 16 17 18 The trial and sentencing judge has already considered all of this information in the post-conviction hearing and has held that none of it would have altered his judgment as to the proper penalty for Gerlaugh. And, the Arizona Supreme Court looked at the substance and results of the post-conviction proceeding and affirmed the trial judge in all respects. In effect, petitioner has already had what he is asking for consideration in a formal hearing of this evidence. 19 20 Gerlaugh, 129 F.3d at 1036; see Smith, 140 F.3d at 1271. 21 Petitioner likewise was able to discover and present all available mitigating evidence 22 to the sentencing judge during the PCR proceedings. Petitioner received a comprehensive 23 mitigation investigation, carried out by a full complement of investigators and experts, 24 followed by a hearing at which all of the mitigating information was presented. Judge Kiger 25 heard and considered the evidence and determined that if it had been presented at sentencing 26 it would not have altered his decision to sentence Petitioner to death. This Court cannot 27 classify as objectively unreasonable Judge Kiger s assessment of the evidence and its impact 28 on his sentencing determination. - 36 - 1 Conclusion 2 The PCR court, in rejecting Petitioner s claim of ineffective assistance of counsel at 3 sentencing, did not apply Strickland in an objectively unreasonable manner. Under 4 Landrigan, Petitioner s waiver of additional mitigation evidence forecloses relief. In 5 addition, Judge Kiger did not unreasonably determined that the omitted mitigation evidence 6 was not sufficient to result in a reasonable probability of a different sentence. 7 In Owens, the Sixth Circuit, citing Landrigan, cautioned that [a] defendant cannot 8 be permitted to manufacture a winning [ineffective assistance of counsel] claim by 9 sabotaging her own defense, or else every defendant clever enough to thwart her own 10 attorneys would be able to overturn her sentence on appeal. 549 F.3d at 412. That principle 11 applies equally to Petitioner s case. Claim 1(B)(4) is denied. 12 Claim 2 13 Petitioner alleges that the trial court violated the Eighth Amendment prohibition 14 against arbitrary and capricious sentencing in capital cases when it allowed Petitioner, over 15 his counsel s objection, to determine that a continuance of the mitigation hearing was 16 unnecessary. Dkt. 35 at 59. He further alleges that the court violated his Sixth Amendment 17 right to counsel by ignoring defense counsel s learned decision that additional time was 18 necessary to prepare mitigation in favor of Petitioner s uninformed desire to proceed to 19 sentencing. Id. Respondents concede that the claim is exhausted to the extent it was raised 20 on direct appeal. Dkt. 36 at 43-44. 21 Background 22 As explained above, Petitioner opposed a continuance of the sentencing proceedings 23 and thereby foreclosed a complete mitigation investigation by the defense team. On direct 24 appeal, Petitioner contended that the trial judge improperly allowed him to waive the 25 presentation of mitigation evidence against the advice of counsel. Opening Br. at 26. The 26 Arizona Supreme Court rejected Petitioner s argument. Kayer, 194 Ariz. at 434-37, 984 P.2d 27 at 42-45. The court held that its jurisprudence does not preclude a defendant from refusing 28 to cooperate with a mitigation specialist, explaining that a competent defendant can waive - 37 - 1 counsel altogether and that [a] defendant s right to waive counsel includes the ability to 2 represent himself or herself at the sentencing phase of a case that could result in the death 3 penalty. Id. at 436, 984 P.2d at 44. Therefore, according to the court, [a]n anomaly would 4 exist were we to accept defendant s argument that counsel exclusively controls the 5 presentation of all mitigation evidence: a defendant could waive counsel at sentencing and 6 thereby have exclusive control over the presentation of all mitigation evidence; yet if a 7 defendant accepts counsel, he would have no input on what mitigating factors to offer. Id. 8 at 436-37, 984 P.2d at 44-45. The court also noted that [t]he United States Supreme Court 9 has upheld a defendant s right to waive all mitigating evidence. Id. (citing Blystone v. 10 11 12 13 14 15 16 17 18 Pennsylvania, 494 U.S. 299, 306 & n. 4 (1990)). The court then explained: [O]ur case law allows defendant the freedom not to cooperate with a mitigation specialist and thereby potentially limit the mitigation evidence that is offered. Significantly, defendant stressed to the trial judge that he wanted Durand to advocate on his behalf at the mitigation hearing. Defendant also wanted his attorneys to argue other mitigating evidence. Consequently, seven mitigating circumstances were offered. Durand testified on defendant s behalf, albeit without defendant s full cooperation. Defendant was not conceding defeat; he wanted advocacy in all areas except the psychological areas that Durand wanted to explore. . . . We conclude that the trial court properly allowed defendant not to cooperate with the court-appointed mitigation specialist, given the repeated warnings of the consequences of this decision and the factual record before us. Id. at 437, 984 P.2d at 45 (citation omitted). 19 Analysis 20 Petitioner contends that the state courts violated his constitutional rights by allowing 21 him to waive the presentation of additional mitigation and that the courts erred in finding that 22 the waiver was knowing and voluntary. The Court disagrees. 23 First, as the Arizona Supreme Court noted, citing Blystone v. Pennsylvania, there is 24 no dispute that a defendant may waive the presentation of mitigating evidence. In Blystone, 25 the United States Supreme Court held that no constitutional violation occurred when a 26 defendant was allowed to waive all mitigation evidence after repeated warnings from the 27 judge and advice from counsel. 494 U.S. 299, 306 & n.4. That principle was buttressed by 28 the holding in Landrigan, which denied an ineffective assistance claim based on the - 38 - 1 defendant s refusal to allow the presentation of a mitigation case. 550 U.S. at 475. 2 Therefore, the fact that the trial court accepted Petitioner s waiver of a more detailed 3 mitigation case does not, by itself, establish a constitutional violation. 4 Petitioner asserts that his waiver was not knowing and voluntary because he did not 5 understand the consequences of his decision. This argument is unavailing on both legal and 6 factual grounds. In Landrigan, the Supreme Court explained that it had never imposed an 7 informed and knowing requirement upon a defendant s decision not to introduce evidence 8 and has never required a specific colloquy to ensure that a defendant knowingly and 9 intelligently refused to present mitigating evidence. Landrigan, 550 U.S. at 479. 10 In Petitioner s case, nonetheless, the state courts reasonably found that his waiver was 11 informed and voluntary. Judge Kiger afforded Petitioner repeated opportunities to reconsider 12 his decision to limit the mitigation defense, ensured that Petitioner discussed the matter fully 13 with counsel, determined that Petitioner had discussed the matter at length with his 14 mitigation specialist, and afforded Petitioner an opportunity to reconsider the decision after 15 he had heard the testimony at his own mitigation hearing. The judge determined that 16 Petitioner voluntarily prohibited his attorneys from further pursuing and presenting any 17 possible mitigating evidence. Dkt. 36, Ex. A at 2. 18 The judge was ideally situated to make this assessment, and his factual findings are 19 presumed correct. Landrigan, 550 U.S. at 474, 476; see 28 U.S.C. § 2254(e)(1). Petitioner 20 has not met his burden of rebutting that presumption with clear and convincing evidence. 21 By the time of the sentencing hearing, when Petitioner again waived a continuance, he was 22 fully aware of the nature and purpose of a mitigation investigation and its significance to his 23 case. Durand s testimony at the aggravation/mitigation hearing alone was adequate to 24 apprise Petitioner of the ramifications of his waiver. And Petitioner s colloquies with Judge 25 Kiger further support a finding that his decision to limit the mitigation case was informed and 26 voluntary. See RT 6/6/97 at 15-21; RT 7/8/97 at 71; RT 7/15/97 at 8. 27 The ruling of the Arizona Supreme Court rejecting this claim was neither contrary to 28 nor an unreasonable application of clearly established federal law, nor was it based on an - 39 - 1 unreasonable determination of the facts. Therefore, Claim 2 is denied. 2 Claim 3 3 Petitioner alleges that he was denied effective assistance of counsel because trial 4 counsel labored under a conflict of interest. Dkt. 35 at 67. Petitioner concedes that the claim 5 is unexhausted because he failed to include it in his petition for review to the Arizona 6 Supreme Court. Dkt. 40 at 30. He contends, however, that he has an available state court 7 remedy under Rule 32.2 because his waiver of the claim was not knowing, voluntary, and 8 intelligent, and he requests a stay of these proceeding so that he may return to state court and 9 exhaust the claim. Id. The Court concludes that the claim, regardless of its procedural status, 10 is plainly without merit. See 28 U.S.C. § 2254(b)(2); Rhines v. Weber, 544 U.S. 269, 277 11 (2005). 12 Analysis 13 To establish an ineffective assistance of counsel claim based on a conflict of interest, 14 it is not sufficient to show that a potential conflict existed. Mickens v. Taylor, 535 U.S. 15 162, 171 (2002). Rather, until a defendant shows that his counsel actively represented 16 conflicting interests, he has not established the constitutional predicate for his claim of 17 ineffective assistance. Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). An actual conflict of 18 interest for Sixth Amendment purposes is one that adversely affected counsel s 19 performance. Mickens, 535 U.S. at 171. Petitioner has not established that his attorneys 20 actively represented conflicting interests or that any conflict of interest affected their 21 performance. 22 At trial, lead counsel Stoller cross-examined the victim s widow, Wilma Haas. Near 23 the conclusion of her testimony, Stoller asked for a sidebar conference. RT 3/19/97 at 57. 24 He informed the court, the prosecutor, and Kayer that after observing Haas testify, he 25 believed he may have represented her son by a prior marriage a few years earlier on DUI 26 charges in Phoenix. Id. at 57-58. The prosecutor and Stoller questioned Haas outside the 27 presence of the jury. Id. She confirmed that Stoller had represented her son, but stated that 28 they had no contact regarding this case. Id. at 69-70. Under these circumstances, Petitioner - 40 - 1 has not established that an actual conflict existed based on Stoller s prior representation of 2 the victim s widow s son. Nor does Petitioner explain how Stoller s prior representation 3 adversely affected his performance. 4 Petitioner contends that second counsel Victor was burdened with a conflict of interest 5 based on his representation of an inmate named Pierce. Prior to Kester s testimony, the State 6 filed a motion in limine to preclude the admission of various acts to impeach Kester. ROA 7 147, 148. One of those acts concerned an altercation between Kester and Pierce in the 8 women s dorm of the Yavapai County Jail. Id. Later, while discussing the motion in court, 9 the judge noted that Victor had represented Pierce on a different matter. RT 3/12/97 at 6. 10 Contrary to Petitioner s assertion that Victor s loyalty to his prior client . . . 11 prevented him from being able to use such information to impeach Kester, Dkt. 35 at 69, 12 Victor forcefully argued that the dorm incident should be admissible to impeach Kester on 13 cross-examination by showing that she was not the weak and submissive individual portrayed 14 by the State. The court disagreed and precluded use of the incident. Id. at 6-7, 170-74. 15 Petitioner therefore has failed to demonstrate that Victor s representation of Pierce affected 16 his performance as Petitioner s counsel. 17 18 Claim 3 is without merit and will be denied. Claim 4 19 Petitioner alleges that his right to trial by an impartial and representative jury under 20 the Sixth and Fourteenth Amendments was violated when the trial court death-qualified his 21 jury. Dkt. 35 at 69. Respondents concede that this claim is exhausted. Dkt. 36 at 50. 22 Prior to trial Judge Kiger informed the parties that during voir dire he would explain 23 to the jurors that the death penalty was a possible sentence, but that the judge, not the jurors, 24 determined the sentence. After providing such information the judge would then ask if the 25 juror could still be fair and impartial. RT 5/5/97 at 7-8. Judge Kiger overruled defense 26 counsel s vehement objection to this process. Id. at 12. 27 Judge Kiger questioned the jurors in groups of three, asking each juror, knowing 28 what your duty as a juror is, do you believe that this kind of a case [a potential death penalty - 41 - 1 case] would be such that you could not be a fair and impartial juror? See, e.g., RT 3/6/97 2 at 36-38. Upon receiving confirmation that a particular juror would be fair and impartial, the 3 judge asked no further questions regarding the death penalty.9 Id. 4 On direct appeal, the Arizona Supreme Court, relying on its own precedent as well as 5 Wainwright v. Witt, 469 U.S. 412, 424 (1985), and Adams v. Texas, 448 U.S. 38, 45 (1980), 6 held that voir dire questioning related to a juror s views on capital punishment is permitted 7 to determine whether those views would prevent or substantially impair the performance of 8 the juror s duties to decide the case in accordance with the court s instructions and the juror s 9 oath. Kayer, 194 Ariz. at 431, 984 P.2d at 39 (quoting State v. Martinez-Villareal, 145 Ariz. 10 441, 449, 702 P.2d 670, 678 (1985)). 11 The Arizona Supreme Court reasonably applied clearly established federal law, which 12 holds that the death-qualification process in a capital case does not violate a defendant s right 13 to a fair and impartial jury. See Lockhart v. McCree, 476 U.S. 162, 178 (1986); Witt, 469 14 U.S. at 424; Adams, 448 U.S. at 45 (1980); see also Ceja v. Stewart, 97 F.3d 1246, 1253 (9th 15 Cir. 1996) (death qualification of Arizona jurors not inappropriate). The fact that the trial 16 court death-qualified the venire does not establish a federal constitutional violation. 17 Petitioner is not entitled to relief on Claim 4. 18 Claim 5 19 Petitioner alleges that his right to trial by an impartial and representative jury under 20 the Sixth and Fourteenth Amendments was violated when the trial court dismissed a juror 21 because of his views concerning the death penalty. Dkt. 35 at 73. Respondents concede that 22 the claim is exhausted. Dkt. 36 at 53. 23 Background 24 Only one juror was excused as a result of the death-qualification questioning 25 26 27 28 9 During this process, Stoller asked each of the potential jurors their views about the role of the jury in a criminal trial, with his questions focusing on the guilt rather than sentencing phase of the trial. See, e.g., RT 3/6/97 at 40. - 42 - 1 described above. In response to inquiries by Judge Kiger, juror Ed DeMar indicated that he 2 had reservations about a proceeding that involved the potential of a death sentence. RT 3 3/6/97 at 91. Rather than have DeMar explain further, Judge Kiger asked him to step outside 4 so that questioning could continue with the two jurors who had not expressed concern 5 regarding the death penalty. Id. at 91-92. DeMar was then brought before the judge and the 6 parties, and the following exchange took place: Court: So we are talking about whether or not you had any personally-held beliefs, philosophical opinions, or religious convictions that would get in the way and make it difficult or impossible for you to be a fair and impartial juror knowing that the death penalty was a possibility. DeMar: Yes. That would be a I would have reservations about an action in which the death penalty might be imposed or could be imposed. Court: Let me emphasize, again, though, your duty as a juror is to and there is a specific instruction that I m going to give these jurors, do not consider the possible punishment in making your deliberations. 13 DeMar: Well, that would put me in a sort of difficult position. 14 Court: That s why I m asking the question. 7 8 9 10 11 12 .... 15 16 DeMar: 17 18 I m not opposed to the death penalty, but I it would depend on the conditions involving questions of premeditation, of stalking, of cruelty, of a particularly heinous crime, of multiple deaths, things of the sort that would tend to follow the Federal application of the death penalty rather than the State application. And that s what would perhaps give me some difficulty. If I and also the question of degree, whether it s first degree, second, third, or manslaughter. Those things would be considerations that I think would affect my impartiality, if I knew that the State had stated that it might seek the death penalty, not knowing those other conditions. 19 20 21 23 In other words, conditionally, I would not necessarily be against the death penalty, but I would be looking toward the kinds of things that I told you that would would perhaps affect that decision. 24 .... 22 25 26 27 Court: And I guess and listen carefully. I m going to try to summarize what you re telling me so that I can understand it. And if I m missing the point, I ll trust that you will try to help me. But what you re saying to me seems like knowing that there is that possibility of the death penalty out there would be bumping into your thoughts on, making it 28 - 43 - DeMar: Yes. I would need to know more, really, and it doesn t mean that I d be against it, but it means that under certain conditions I would, and not knowing those other factors would trouble me somewhat. Court: And would it get in your way, then, of being a fair and impartial juror as the process continued? DeMar: It might, again depending on what how much of a factor became evidence in testimony and what have you. 6 Court: Okay. 7 DeMar: But it would not be be a hands-down opposition to the death penalty as such. Court: I understand what you re saying, and of course at this point we are looking for whether or not you can work in this trial as a fair and impartial juror to both defendant and the State. DeMar: I understand. Court: Let me let me try it this way, to knowing what you know right now, knowing your personal opinions and beliefs and what you know the job of the juror to be, because this is a possibility of a death penalty case at this point, would you like me to excuse you from jury duty in this case? DeMar: I think that probably would be fair to the to the State and to the defense, both really, since that reservation is honestly held. Court: Okay. Okay. Mr. DeMar, I m going to accept what you tell me. I m going to thank you for spending now a day and a half with us and putting up with all of our questioning, and I m going to excuse you from jury duty in this case, with our sincere appreciation. 1 2 3 4 5 8 9 10 11 12 13 14 15 16 17 18 Id. at 98-101. Neither party challenged DeMar for cause or objected to his excusal. Id. 19 On direct appeal, Petitioner argued that DeMar s dismissal was not supported by a 20 finding that his views on the death penalty would prevent him from performing his duties as 21 a juror. Opening Br. at 18-20. The Arizona Supreme Court rejected this claim, explaining: 22 23 24 [T]he judge was willing to allow DeMar to continue as a potential juror upon a simple assurance that DeMar could be fair and impartial. Because DeMar could not give such an assurance, he accepted the court s decision that he be excused from the jury panel in order to be fair to both the defendant and the State. 25 26 27 Similarly, our case law is clear that a trial judge must excuse any potential jurors who cannot provide assurance that their death penalty views will not affect their ability to decide issues of guilt. See Detrich, 188 Ariz. at 65, 932 P.2d at 1336 (urging as imperative the dismissal of any juror who cannot assure impartiality on guilt issues because of views regarding the death 28 - 44 - penalty (citing State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996))). Thus, the trial court did not err in asking DeMar questions regarding the death penalty, nor did the court err in allowing DeMar to be excused from jury service given the presence of honestly held reservations regarding the death penalty that might have affected DeMar s ability to carry out his oath with respect to issues of guilt. 1 2 3 4 5 Kayer, 194 Ariz. at 431-32, 984 P.2d at 39-40. 6 Analysis 7 Clearly established Supreme Court law provides that, when selecting a jury in a 8 capital case, jurors cannot be struck for cause because they voiced general objections to the 9 death penalty or expressed conscientious or religious scruples against its infliction. 10 Witherspoon v. Illinois, 391 U.S. 510, 522 & n.21 (1968) (noting that exclusion for cause is 11 appropriate if views on the death penalty would prevent them from making an impartial 12 decision as to the defendant s guilt ). Therefore, [a] juror may not be challenged for cause 13 based on his views about capital punishment unless those views would prevent or 14 substantially impair the performance of his duties as a juror in accordance with his 15 instructions and his oath. Adams v. Texas, 448 U.S. at 45; see Wainwright v. Witt, 469 U.S. 16 at 424. 17 In Petitioner s case, the record indicates that DeMar was not challenged for cause. 18 Instead, at the end of a colloquy in which he consistently expressed reservations about his 19 ability to sit as a fair and impartial juror in a death penalty case, the judge asked him if he 20 would prefer to be excused. He stated that he would, in fairness to both parties, and neither 21 Petitioner nor the State objected.10 Under these circumstances, Petitioner cannot demonstrate 22 that the Arizona Supreme Court unreasonably applied Witherspoon in rejecting this claim. 23 Even assuming that DeMar was struck for cause, under Uttecht v. Brown, 551 U.S. 24 1 (2007), Petitioner would not be entitled to relief. In Uttecht the prosecution struck for 25 cause a panel member referred to as Juror Z. Id. at 5. Juror Z initially indicated that he 26 27 28 10 During the PCR evidentiary hearing, both Stoller and Victor testified that they did not want DeMar on the jury. RT 3/16/06 at 42; RT 3/22/06 at 96. - 45 - 1 could impose the death penalty in severe situations for example, if a defendant would 2 inevitably re-offend if released. Id. at 14-15. When informed by defense counsel that the 3 defendant would never be released from prison, Juror Z expressed uncertainty about his 4 ability to impose a death sentence. Pressed by the prosecution, he continued to equivocate 5 regarding his willingness to consider the death penalty in the circumstances of the case 6 before him, though he generally stated that he could consider the death penalty or follow 7 the law. Id. at 15. The prosecution challenged Juror Z for cause, citing his confusion about 8 the proper circumstances for the imposition of a death sentence. The defense indicated that 9 it had no objection, and the trial court excused the juror. The Ninth Circuit granted habeas 10 relief on the grounds that the state courts had not made a finding that the juror was 11 substantially impaired and that the transcript unambiguously proved Juror Z was not 12 substantially impaired. Id. at 15-16. The Supreme Court reversed, holding that the record 13 established that Juror Z had both serious misunderstandings about his responsibility as a 14 juror and an attitude toward capital punishment that could have prevented him from returning 15 a death sentence under the facts of this case. Id. at 13. As illustrated above, DeMar in his 16 colloquy with Judge Kiger demonstrated similar characteristics confusion about his role 17 as a juror and an attitude toward the death penalty suggesting that he might have been unable 18 to serve as a fair and impartial juror. Indeed, DeMar himself stated that he thought his 19 excusal from the jury would be fair to the State and the defense. 20 In addition, if, as Petitioner contends, Judge Kiger dismissed DeMar for cause after 21 finding that his ability to be fair and impartial was substantially impaired due to his beliefs 22 about the death penalty, then the judge s determination was based in part on [DeMar s] 23 demeanor and is owed deference by reviewing courts. Id. at 8. Judge Kiger had broad 24 discretion to dismiss DeMar after conducting a diligent and thoughtful voir dire that 25 revealed considerable confusion on the part of the juror. Id. at 20. 26 Petitioner notes that DeMar indicated that he was not unambiguously opposed to the 27 death penalty and would vote to apply it in certain circumstances. But such isolated 28 statements indicating an ability to impose the death penalty do not suffice to preclude the - 46 - 1 prosecution from striking for cause a juror whose responses, taken together, indicate a lack 2 of such ability or a failure to comprehend the responsibilities of a juror. Morales v. 3 Mitchell, 507 F.3d 916, 941 (6th Cir. 2007). 4 The Arizona Supreme Court did not unreasonably apply clearly established federal 5 law in rejecting this claim on appeal. Therefore, Claim 5 is denied. 6 Claim 6 7 Petitioner alleges that the state courts violated his rights to due process and to be free 8 from cruel and unusual punishment under the Fifth, Eighth, and Fourteenth Amendments by 9 finding that he committed the murder with the expectation of the receipt of anything of 10 pecuniary value under A.R.S. § 13-703(F)(5). Dkt. 35 at 76. Petitioner contends that [t]he 11 State failed to prove beyond a reasonable doubt that Petitioner s motive was not revenge or 12 some other reason beyond the expectation of pecuniary gain. Id. at 77. 13 Respondents counter that Claim 6 is unexhausted and procedurally barred. Dkt. 36 14 at 56. They correctly note that on direct appeal Petitioner did not allege a violation of his 15 federal constitutional rights but argued only that the factor had not been proved. See 16 Opening Br. at 31-37. The Arizona Supreme Court, however, considered the pecuniary gain 17 aggravating factor during its independent sentencing review. Kayer, 194 Ariz. at 433-34, 18 984 P.2d at 41-42. This Court must determine whether that review exhausted the claim. 19 The Arizona Supreme Court independently reviews each capital case to determine 20 whether the death sentence is appropriate. In State v. Gretzler, 135 Ariz. 42, 54, 659 P.2d 21 1, 13 (1983), the court stated that the purpose of independent review is to assess the presence 22 or absence of aggravating and mitigating circumstances and the weight to give to each. To 23 ensure compliance with Arizona s death penalty statute, the state supreme court reviews the 24 record regarding aggravation and mitigation findings and decides independently whether the 25 death sentence should be imposed. State v. Brewer, 170 Ariz. 486, 493-94, 826 P.2d 783, 26 790-91 (1992). The Arizona Supreme Court has also stated that in conducting its review it 27 determines whether the sentence of death was imposed under the influence of passion, 28 prejudice, or any other arbitrary factors. State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, - 47 - 1 51 (1976), sentence overturned on other grounds, Richmond v. Cardwell, 450 F.Supp. 519 2 (D. Ariz. 1978). Arguably, such a review rests on both state and federal grounds. See 3 Brewer, 170 Ariz. at 493, 826 P.2d at 790 (finding that statutory duty to review death 4 sentences arises from need to ensure compliance with constitutional safeguards imposed by 5 the Eighth and Fourteenth Amendments). 6 While the state supreme court s independent review does not encompass all alleged 7 constitutional errors at sentencing, the Court must determine if it encompassed Petitioner s 8 claim that the trial court erred in finding the pecuniary gain aggravating factor. In its written 9 opinion, the Arizona Supreme Court reviewed the aggravating factors found by the 10 sentencing judge to determine their existence and whether a death sentence was appropriate. 11 Kayer, 194 Ariz. at 432-33, 984 P.2d at 40-41. With respect to the pecuniary gain factor, the 12 supreme court reviewed the evidence in the record and determined that the pecuniary gain 13 factor had been satisfied. Id. at 433-34, 984 P.3d at 41-42. The supreme court s actual 14 review of the trial court s finding of the (F)(5) factor sufficiently exhausted Claim 16. See 15 Sandstrom v. Butterworth, 738 F.2d 1200, 1206 (11th Cir. 1984). Thus, the Court finds that 16 Claim 6 was actually exhausted, and it will be reviewed on the merits. 17 Analysis 18 In rejecting this claim on appeal, the Arizona Supreme Court explained: 19 The State proved pecuniary gain in this case beyond a reasonable doubt. Kester and other witnesses testified that defendant continually bragged about his gambling system and observed his addictive behavior of constantly wanting money with which to gamble. Kester testified that defendant said he planned to steal from Haas and then kill him so that defendant could get away with killing someone he knew. Defendant took Haas money, credit cards, and other personal items from the crime scene. Kester testified that defendant also took Haas house keys after the murder, entered the home, and stole several additional items of personal property. Another witness at trial observed Kester and defendant at Haas home at about the time established by Kester. Pawn shop receipts and witness testimony established that after Haas was murdered, defendant sold virtually all of Haas jewelry and guns. In short, the State presented overwhelming circumstantial and direct evidence that defendant killed with the expectation of pecuniary gain. This proof far exceeds the requirement that pecuniary gain must be only a motive for the crime. 20 21 22 23 24 25 26 27 28 Kayer, 194 Ariz. at 433-34, 984 P.2d at 41-42. With respect to a state court s application of an aggravating factor, habeas review is - 48 - 1 limited, at most, to determining whether the state court s finding was so arbitrary and 2 capricious as to constitute an independent due process or Eighth Amendment violation. 3 Lewis v. Jeffers, 497 U.S. 764, 780 (1990). In making that determination, the reviewing 4 court must inquire whether, after viewing the evidence in the light most favorable to the 5 prosecution, any rational trier of fact could have found that the factor had been satisfied. 6 Id. at 781 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard gives full 7 play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to 8 weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. 9 Jackson, 443 U.S. at 319. 10 [A] finding that a murder was motivated by pecuniary gain for purposes of § 13- 11 703(F)(5) must be supported by evidence that the pecuniary gain was the impetus of the 12 murder, not merely the result of the murder. Moormann v. Schriro, 426 F.3d 1044, 1054 13 (9th Cir. 2005). Based upon the evidence produced at trial, a rational factfinder could have 14 determined that Petitioner, short of cash from his gambling losses, planned and carried out 15 the murder of Haas in order to gain access to the victim s property. 16 Petitioner argues that additional motives may have led to the killing. As the Arizona 17 Supreme Court noted, however, [t]he State can establish pecuniary gain beyond reasonable 18 doubt through presentation of direct, tangible evidence or through strong circumstantial 19 evidence, and a financial motive need not be the only reason the murder was committed 20 for the pecuniary gain aggravator to apply. Kayer, 194 Ariz. at 434, 984 P.2d at 42. Here, 21 Kester s testimony of a financial motive for the killing is corroborated by circumstantial 22 evidence concerning the missing property and the sale of items belonging to Haas. Thus, 23 application of the pecuniary gain factor was not unreasonable even if other motives for the 24 killing may have existed. Petitioner is not entitled to relief on Claim 6. 25 Claim 7 26 Petitioner alleges that the state courts violated his rights under the Fifth, Sixth, Eighth, 27 and Fourteenth Amendments when they determined that the prosecution had proven as an 28 aggravating factor that Petitioner was previously convicted of a serious offense under A.R.S. - 49 - 1 §13-703(F)(2). Dkt. 35 at 78. Respondents contend that the claim is unexhausted and 2 procedurally barred. Dkt. 36 at 57. For the reasons set forth above with respect to the 3 pecuniary gain factor, the Court concludes that this claim was exhausted by the Arizona 4 Supreme Court s independent review of Petitioner s sentence. 5 In its special verdict, the trial court indicated that it had received and reviewed the 6 documents submitted by the State with respect to Petitioner s first-degree burglary 7 conviction. Dkt. 36, Ex. A at 1. On direct appeal, the Arizona Supreme Court upheld the 8 trial court s application of the (F)(2) factor. Kayer, 194 Ariz. at 433, 984 P.2d at 41. The 9 court stated, in relevant part: The State presented documentation of defendant s 1981 conviction of firstdegree burglary. Based on this documentation, the court determined the (F)(2) aggravator had been proved beyond a reasonable doubt. The State thus met its burden of showing that defendant had been previously convicted of a serious offense under section 13-703(F)(2). 10 11 12 13 Id. 14 Petitioner asserts that the trial court based its findings regarding the prior conviction 15 on documents it had reviewed but that had not properly been admitted into evidence. In 16 affirming the application of (F)(2), Petitioner contends that the supreme court ignored the 17 fact the trial court did not admit any evidence regarding this potential aggravating 18 circumstance and thereby violated its own precedent. Dkt. 35 at 80. 19 Even assuming that the state courts erred by failing to admit into evidence the records 20 of Petitioner s first-degree burglary conviction, Petitioner is not entitled to habeas relief. A 21 state court s error in applying state law does not warrant federal habeas corpus relief. Estelle 22 v. McGuire, 502 U.S. 62, 71-72 (1981). On habeas review, this Court is limited to 23 determining whether the state court s application of state law was so arbitrary and capricious 24 that it amounted an independent due process or Eighth Amendment violation. Lewis v. 25 Jeffers, 497 U.S. at 780. 26 Claim 7 does not meet this standard. Petitioner does not contest the existence of the 27 prior conviction or contend that it fails to satisfy the statutory definition of a serious offense. 28 He simply argues that the trial court considered the documents proving the conviction - 50 - 1 without first having admitted them into evidence. The state supreme court found that the 2 record presented to the trial court was sufficient to prove that Petitioner had previously been 3 convicted of a serious offense under § 13-703(F)(2). Whether or not the Arizona Supreme 4 Court erred in upholding the process by which the prior conviction was proved, the state 5 courts application of the (F)(2) factor, under the circumstances described above, was not so 6 arbitrary and capricious as to constitute an independent constitutional violation. Claim 7 is 7 therefore denied. 8 Claims 8 and 10 9 In Claim 8, Petitioner alleges that the trial court violated [his] rights under the Eighth 10 and Fourteenth Amendments . . . when it failed to find and/or consider mitigating 11 circumstances established by the record. Dkt. 35 at 80. In Claim 10, Petitioner alleges that 12 the trial court and the Arizona Supreme Court violated his Eighth and Fourteenth 13 Amendment right to the consideration of all relevant mitigation evidence by refusing to 14 consider mitigating factors that did not have a causal nexus to the crime. Dkt. 35 at 85. 15 On direct appeal, Petitioner did not allege that his federal constitutional rights were 16 violated by the manner in which the trial court considered the proffered mitigating 17 circumstances. See Opening Br. at 37. He simply argued, with no citation to the federal 18 constitution or relevant case law, that the trial court erred in not finding that the mitigating 19 circumstances had been proved. Id. Therefore, he failed to exhaust Claims 8 and 10 on 20 direct appeal. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995). 21 Petitioner raised the allegations contained in Claims 8 and 10 for the first time in 22 Claim 1 of his PCR petition. PCR Pet. at 1-3. The court found the claim precluded under 23 Rule 32.2(a)(3). Dkt. 36, Ex. B at 1. Respondents contend, therefore, that Claims 8 and 10 24 are procedurally barred. Dkt. 36 at 59. Petitioner counters that the PCR court s ruling was 25 erroneous because the claims could not have been raised on direct appeal because they 26 challenge the holding of the Arizona Supreme Court. The Court disagrees. A petitioner 27 seeking habeas relief has not properly exhausted a claim if he has the right under the law 28 of the State to raise, by any available procedure, the question presented. 28 U.S.C. - 51 - 1 § 2254(c) (emphasis added). Thus, a petitioner must present his claims to a state supreme 2 court in a petition for discretionary review in order to properly exhaust a claim in state 3 court. O Sullivan v. Boerckel, 526 U.S. at 839-40. A motion for reconsideration is an 4 avenue of relief that the Arizona Rules of Criminal Procedure clearly outline. Correll v. 5 Stewart, 137 F.3d 1404, 1418 (9th Cir. 1998); see Styers v. Schriro, 547 F.3d 1026, 1034 (9th 6 Cir. 2008). Petitioner could have raised these claims in his motion for reconsideration to the 7 Arizona Supreme Court following the denial of his direct appeal. He did not. See PCR Pet., 8 Ex. 29. Therefore, the PCR court did not err in finding the claims precluded as waived 9 pursuant to Rule 32.2(a)(3). 10 Alternatively, Petitioner offers ineffective assistance of appellate counsel as cause for 11 the default.11 Dkt. 40 at 39, 43. Where ineffective assistance of appellate counsel is raised 12 as cause for excusing a procedural default, application of Strickland requires the Court to 13 look to the merits of the omitted issue. Hain v. Gibson, 287 F.3d 1224, 1231 (10th Cir. 14 2002); United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (to determine if appellate 15 counsel provided ineffective assistance by failing to raise an issue on appeal we examine 16 the merits of the omitted issue ). If the omitted issue is meritless, counsel s failure to appeal 17 does not constitute a Sixth Amendment deprivation. Cook, 45 F.3d at 392-93. The Court 18 concludes, as set forth below, that Claims 8 and 10 lack merit. Therefore, appellate counsel 19 was not ineffective for failing to raise them and ineffective assistance of appellate counsel 20 does not excuse their default. 21 Background 22 As detailed above, the trial court found that Petitioner had failed to prove the 23 nonstatutory mitigation evidence proffered at sentencing regarding his substance abuse and 24 mental health, finding that Petitioner had established neither the existence of the conditions 25 26 27 28 11 As discussed below in Claim 22, Petitioner exhausted his claims of ineffective assistance of appellate counsel by raising them in his PCR petition and petition for review. PCR Pet. at 46; PR doc. 9 at 31. - 52 - 1 nor their effect on his behavior at the time of the murders. Dkt 36, Ex. A at 3-4. In his 2 special verdict, Judge Kiger stated that he had considered all of the nonstatutory mitigating 3 circumstances but found them of essentially no weight. Id. at 5. 4 The Arizona Supreme Court agreed that impairment was not established as a 5 nonstatutory mitigating factor by a preponderance of the evidence, explaining that in 6 addition to offering equivocal evidence of mental impairment, defendant offered no evidence 7 to show the requisite causal nexus that mental impairment affected his judgment or his 8 actions at the time of the murder. Kayer, 194 Ariz. at 438, 984 P.2d at 46. In considering 9 other nonstatutory mitigating circumstances, the Arizona Supreme Court found that 10 Petitioner s poor post-murder physical health was entitled to no weight as a mitigating 11 factor because it did not bear on his pre-murder character or his propensities, record, or other 12 circumstances of the offense. Id. at 440, 984 P.2d at 48. The court likewise found that 13 Petitioner s intelligence and ability to contribute to society did not constitute a mitigating 14 factor. Id. 15 Analysis 16 The Supreme Court has explained that evidence about the defendant s background 17 and character is relevant because of the belief, long held by this society, that defendants who 18 commit criminal acts that are attributable to a disadvantaged background [or to emotional and 19 mental problems] may be less culpable than defendants who have no such excuse. Wiggins, 20 539 U.S. at 535 (quoting Penry v. Lynaugh, 492 U.S. 302, 319 (1989)). Therefore, a 21 sentencing court is required to consider any mitigating information offered by a defendant, 22 including non-statutory mitigation. See Lockett v. Ohio, 438 U.S. 586, 604 (1978); see also 23 Ceja v. Stewart, 97 F.3d 1246, 1251 (9th Cir. 1996). In Lockett and Eddings v. Oklahoma, 24 455 U.S. 104, 113-14 (1982), the Court held that under the Eighth and Fourteenth 25 Amendments the sentencer must be allowed to consider, and may not refuse to consider, any 26 aspect of a defendant s character or record and any of the circumstances of the offense that 27 the defendant proffers as a basis for a sentence less than death. See also Burger v. Kemp, 28 483 U.S. 776, 789 n.7 (1987). While the sentencer must not be foreclosed from considering - 53 - 1 relevant mitigation, it is free to assess how much weight to assign such evidence. Ortiz v. 2 Stewart, 149 F.3d 923, 943 (9th Cir. 1998); see Eddings, 455 U.S. at 114-15 ( The sentencer 3 . . . may determine the weight to be given the relevant mitigating evidence. ); see also State 4 v. Newell, 212 Ariz. 389, 405, 132 P.3d 833, 849 (2006) (explaining that mitigating evidence 5 must be considered regardless of whether there is a nexus between the mitigating factor 6 and the crime, but the lack of a causal connection may be considered in assessing the weight 7 of the evidence). 8 On habeas review, a federal court does not evaluate the substance of each piece of 9 evidence submitted as mitigation. Instead, it reviews the record to ensure the state court 10 allowed and considered all relevant mitigating information. See Jeffers v. Lewis, 38 F.3d 11 411, 418 (9th Cir. 1994) (en banc) (when it is evident that all mitigating evidence was 12 considered, the trial court is not required to discuss each piece of evidence); see also Lopez 13 v. Schriro, 491 F.3d 1029, 1037 (9th Cir. 2007), cert. denied, 128 S. Ct. 1227 (2008) 14 (rejecting claim that the sentencing court failed to consider proffered mitigation where the 15 court did not prevent the defendant from presenting any evidence in mitigation, did not 16 affirmatively indicate there was any evidence it would not consider, and expressly stated it 17 had considered all mitigation evidence proffered by the defendant). In LaGrand v. Stewart, 18 133 F.3d 1253, 1263 (9th Cir. 1998), the Ninth Circuit discussed the habeas court s role 19 when considering whether the state court properly weighed mitigation evidence: 22 federal courts do not review the imposition of the sentence de novo. Here, as in the state courts finding of the existence of an aggravating factor, we must use the rational fact-finder test of Lewis v. Jeffers. That is, considering the aggravating and mitigating circumstances, could a rational fact-finder have imposed the death penalty? 23 Applying these principles, it is apparent in Petitioner s case that the trial court and the 24 Arizona Supreme Court fulfilled their constitutional obligation by allowing and considering 25 all of the mitigating evidence. As noted above, the trial court and the state supreme court 26 discussed the mitigating circumstances advanced by Petitioner at sentencing, including his 27 family background, mental health, and history of substance abuse. The fact that the courts 28 found the mitigating information not weighty enough to call for leniency does not amount 20 21 - 54 - 1 to a constitutional violation. Eddings, 455 U.S. at 114-15. This is true notwithstanding the 2 courts discussion of the lack of a causal link between the mitigating circumstances and the 3 crime. 4 In Tennard v. Dretke, 542 U.S. 274, 289 (2004), the Supreme Court held that the 5 habeas petitioner was entitled to a certificate of appealability on his claim that Texas s capital 6 sentencing scheme failed to provide a constitutionally adequate opportunity to present his 7 low I.Q. as a mitigating factor. The Court rejected the screening test applied by the Fifth 8 Circuit, according to which mitigating information is constitutionally relevant only if it 9 shows uniquely severe circumstances to which the criminal act was attributable. Id. at 10 283-84. Instead, the Court explained, the test for the relevance of mitigation evidence is the 11 same standard applied to evidence proffered in other contexts namely, whether the 12 evidence has any tendency to make the existence of any fact that is of consequence to a 13 determination of the action more or less likely than it would be without the evidence. Id. at 14 284. 15 The courts in Petitioner s case did not impose any barrier to consideration of the 16 proffered mitigation. To the contrary, the trial court and the Arizona Supreme Court 17 explicitly considered the evidence of Petitioner s mental health issues and substance abuse 18 history. Again, no constitutional violation occurred when the state courts, perceiving the lack 19 of a causal or explanatory relationship between the mitigating evidence and Petitioner s 20 criminal conduct, assigned less weight to that evidence than Petitioner believes it warranted. 21 See Eddings, 455 U.S. at 114-15; Ortiz, 149 F.3d at 943. In addition, contrary to Petitioner s 22 arguments in Claim 8, the courts considered his current poor health and his ability to 23 contribute to society, but found they were not mitigating because they did not relate to his 24 character, record, or the circumstances of the offense. This determination was permissible. 25 See Lockett, 438 U.S. at 604 n.12 ( Nothing in this opinion limits the traditional authority 26 of a court to exclude, as irrelevant, evidence not bearing on the defendant s character, prior 27 record, or circumstances of the offense. ). 28 The United States Supreme Court has emphasized that there is no required formula - 55 - 1 for weighing mitigating evidence; indeed, the sentencer may be given unbridled discretion 2 in determining whether the death penalty should be imposed after it has found that the 3 defendant is a member of the class made eligible for that penalty. Zant v. Stephens, 462 4 U.S. 862, 875 (1983); see Kansas v. Marsh, 548 U.S. 163, 175 (2006) ( our precedents 5 confer upon defendants the right to present sentencers with information relevant to the 6 sentencing decision and oblige sentencers to consider that information in determining the 7 appropriate sentence. The thrust of our mitigation jurisprudence ends here. ); Harris v. 8 Alabama, 513 U.S. 504, 512 (1995) (Constitution does not require that a specific weight be 9 given to any particular mitigating factor); Tuilaepa v. California, 512 U.S. 967, 979-80 10 (1994). This Court knows of no Supreme Court precedent holding that mitigation evidence, 11 once presented and under consideration, is entitled to a particular weight or that it is 12 inappropriate for a sentencer, when weighing such evidence, to consider, along with its 13 humanizing impact, the extent to which the evidence offers an explanation of the criminal 14 conduct.12 15 Conclusion 16 Neither the trial court nor the Arizona Supreme Court violated Petitioner s rights in 17 their evaluation of proffered mitigation evidence. Claims 8 and 10 are meritless. Appellate 18 counsel was not ineffective because if had he raised the claims in a motion for 19 reconsideration there is no likelihood the Arizona Supreme Court would have granted relief. 20 Therefore, Petitioner has failed to establish cause to his excuse the default of Claims 8 and 21 10 and the claims are procedurally barred. 22 Claim 9 23 Petitioner alleges that execution by lethal injection, as it will be imposed, is cruel and 24 unusual punishment in violation of his rights under the Eighth and Fourteenth Amendments 25 26 27 28 12 The Ninth Circuit has recognized that mitigating evidence may serve both a humanizing and an explanatory or exculpatory purpose, with greater weight generally being ascribed to the latter category. See Allen v. Woodford, 395 F.3d 979, 1005-10 (2005). - 56 - 1 of the United States Constitution. Dkt. 35 at 82. This claim was raised on direct appeal and 2 rejected by the Arizona Supreme Court. Kayer, 194 Ariz. at 441, 984 P.2d at 49. 3 Petitioner is not entitled to habeas relief on this claim. The United States Supreme 4 Court has never held that lethal injection constitutes cruel and unusual punishment, see Baze 5 v. Rees, 128 S. Ct. 1520 (2008), and the Ninth Circuit has concluded that death by lethal 6 injection in Arizona does not violate the Eighth Amendment. See LaGrand v. Stewart, 133 7 F.3d 1253, 1265 (9th Cir. 1998); Poland v. Stewart, 117 F.3d 1094, 1104-05 (9th Cir. 1997); 8 see also Dickens v. Brewer, 07-CV-1770, 2009 WL 1904294 (D. Ariz. July 1, 2009) 9 (Arizona s lethal injection protocol does not violate Eighth Amendment). Therefore, the 10 Arizona Supreme Court s rejection of the claim was neither contrary to nor an unreasonable 11 application of clearly established federal law. Claim 9 is denied. 12 Claim 11 13 Petitioner alleges that he was denied a jury finding beyond a reasonable doubt on the 14 facts that increased his sentence beyond the maximum imposable in violation of the Sixth, 15 Eighth, and Fourteenth Amendments to the United States Constitution. Dkt. 35 at 94. The 16 PCR court found this claim precluded under Rule 32.2(a)(3), and Respondents contend that 17 it is unexhausted and procedurally barred. Dkt. 36 at 68-69. Regardless of the claim s 18 procedural status, it is plainly meritless and will be denied. See 28 U.S.C. § 2254(b)(2); 19 Rhines, 544 U.S. at 277. 20 Petitioner asserts that he is entitled to the benefit of the rule announced in Apprendi 21 v. New Jersey, 530 U.S. 466 (2000), and that the holding in Schriro v. Summerlin, 542 U.S. 22 348 (2004), does not apply to his case.13 Dkt. 35 at 95-96. These propositions are premised 23 on Petitioner s claim that his conviction became final after the decision in Apprendi on 24 January 25, 2001, when the Arizona Supreme Court issued its mandate in Petitioner s case, 25 26 27 28 13 Apprendi held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 489. - 57 - 1 as opposed to February 28, 2000, when the United States Supreme Court denied his petition 2 for writ of certiorari.14 Petitioner is incorrect. State convictions are final for purposes of 3 retroactivity analysis when the availability of direct appeal to the state courts has been 4 exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed 5 petition has been finally denied. 15 Beard v. Banks, 542 U.S. 406, 411 (2004) (quoting 6 Caspari v. Bohlen, 510 U.S. 383, 390 (1994)). Petitioner s case was final when his petition 7 for writ of certiorari was denied, which occurred prior to June 26, 2000, the date on which 8 Apprendi was decided. 9 At the time of Petitioner s sentencing, Supreme Court precedent held that judges could 10 find the aggravating circumstances that made a defendant eligible for capital punishment. 11 Walton v. Arizona, 497 U.S. 639, 647-49 (1990). That law changed with Ring v. Arizona, 12 536 U.S. 584 (2002), but Schriro v. Summerlin 542 U.S. 348, 358 (2004), held that Ring 13 announced a new procedural rule that does not apply retroactively to cases, like Petitioner s, 14 that were already final on direct review at the time Ring was decided. Notwithstanding the 15 inapplicability of Ring to his case, Petitioner counters that Apprendi is sufficient to establish 16 the Sixth Amendment violation requiring relief from his death sentence. Dkt. 35 at 96. This 17 argument is unavailing because Apprendi, like Ring, does not apply retroactively, see 18 Cooper-Smith v. Palmateer, 397 F.3d 1236, 1245-46 (9th Cir. 2005), and, as just discussed, 19 Petitioner s conviction was final before Apprendi was decided. Claim 11 is therefore denied. 20 Claim 12 21 Petitioner alleges that his death sentence violates his jury trial rights under the Fifth, 22 Sixth, and Fourteenth Amendments because the aggravating factors alleged by the State were 23 24 14 25 Kayer v. Arizona, 528 U.S. 1196 (2000) (mem.). 15 26 27 28 Petitioner asserts that for purposes of retroactivity analysis, an Arizona conviction becomes final only with the issuance of the mandate because until that point an appellate court may still modify the sentence. Dkt. 40 at 46-47. He offers no support for this proposition, and the Court rejects it as contrary to Banks. - 58 - 1 not presented in an indictment and subjected to a pretrial probable cause determination. 2 Dkt. 35 at 101. 3 Respondents argument that the claim is procedurally barred, but the Court will address the 4 claim because it is plainly meritless. See 28 U.S.C. § 2254(b)(2); Rhines, 544 U.S. at 277. 5 While the Due Process Clause guarantees defendants a fair trial, it does not require 6 the states to observe the Fifth Amendment s provision for presentment or indictment by a 7 grand jury. Hurtado v. California, 110 U.S. 516, 538 (1884); Branzburg v. Hayes, 408 U.S. 8 665, 688 n.25 (1972). Although Petitioner contends that Ring and Apprendi support his 9 position in this claim, in neither case did the Supreme Court address the issue, let alone hold 10 that aggravating factors must be included in an indictment and subjected to a probable cause 11 determination. See Ring, 536 U.S. at 597 n.4. Moreover, the Arizona Supreme Court has 12 expressly rejected the argument that Ring requires that aggravating factors be alleged in an 13 indictment and supported by probable cause. McKaney v. Foreman, 209 Ariz. 268, 270, 100 14 P.3d 18, 20 (2004). Claim 12 is without merit and will be denied. 15 Claim 22 The PCR court found this claim precluded under Rule 32.2(a)(3). 16 Petitioner cites several instances in which he was denied effective assistance of 17 counsel on appeal in violation of his rights under the Sixth and Fourteenth Amendments. 18 Dkt. 35 at 119. Respondents contend that the claim is unexhausted because Petitioner failed 19 to include it in his petition for review to the Arizona Supreme Court. Dkt. 36 at 82. 20 Petitioner counters that he did raise a claim of ineffective assistance of appellate counsel in 21 his petition for review. Dkt. 40 at 62. 22 In his PCR petition, Petitioner raised the allegations of ineffective assistance of 23 appellate counsel contained in his habeas petition. PCR Pet. at 45. The court found the 24 claims not colorable because the prejudice portion of the Strickland test has not been 25 met. Dkt. 36, Ex. B at 2. In his petition for review, Petitioner raised such allegations as a 26 defense against the preclusion rulings reached by the PCR court. See PR doc. 9 at 31. The 27 Court finds that this was sufficient to exhaust the allegations and will consider Claim 22 on 28 the merits. - 59 - 1 Analysis 2 The Fourteenth Amendment guarantees a criminal defendant the effective assistance 3 of counsel on his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). A claim 4 of ineffective assistance of appellate counsel is reviewed under the standard set out in 5 Strickland. See Miller v. Keeney, 882 F.2d 1428, 1433-34 (9th Cir. 1989). A petitioner must 6 show that counsel s appellate advocacy fell below an objective standard of reasonableness 7 and that there is a reasonable probability that, but for counsel s deficient performance, the 8 petitioner would have prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285-86 (2000); 9 see Miller, 882 F.2d at 1434 n.9 (citing Strickland, 466 U.S. at 688, 694). 10 A failure to raise untenable issues on appeal does not fall below the Strickland 11 standard. Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002); see also Wildman v. 12 Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (appellate counsel could not be found to have 13 rendered ineffective assistance for failing to raise issues that are without merit ); Boag v. 14 Raines, 769 F.2d 1341, 1344 (9th Cir. 1985). Moreover, appellate counsel does not have a 15 constitutional duty to raise every nonfrivolous issue requested by a petitioner. Miller, 882 16 F.2d at 1434 n.10 (citing Jones v. Barnes, 463 U.S. 745, 751-54 (1983)); see Smith v. 17 Stewart, 140 F.3d at 1274 n.4 (counsel not required to file kitchen-sink briefs because 18 doing so is not necessary, and is not even particularly good appellate advocacy ). Courts 19 have frequently observed that the weeding out of weaker issues is . . . one of the hallmarks 20 of effective appellate advocacy. Miller, 882 F.2d at 1434; see Smith v. Murray, 477 U.S. 21 527, 536 (1986). Therefore, even if appellate counsel declines to raise weak issues, he will 22 likely remain above an objective standard of competence and will have caused no prejudice. 23 Id. 24 The PCR court s finding that Petitioner failed to show he was prejudiced by appellate 25 counsel s performance did not constitute an unreasonable application of Strickland. As 26 described below, the issues appellate counsel failed to raise were without merit. Therefore, 27 Petitioner has not met his burden of affirmatively proving that he was prejudiced by appellate 28 counsel s performance. - 60 - 1 In Claim 13, Petitioner alleges that the trial court misapplied Arizona s capital- 2 sentencing statute, thus violating Petitioner s right to due process of law under the Fifth and 3 Fourteenth Amendments and his right to be free from cruel and unusual punishment under 4 the Eighth and Fourteenth Amendments. Dkt. 35 at 105. 5 Arizona s capital sentencing statute provides: The trier of fact shall impose a 6 sentence of death if . . . there are no mitigating circumstances sufficiently substantial to call 7 for leniency. A.R.S. § 13-703(E). Petitioner argues that the trial court did not properly 8 apply this standard because it found that one mitigating factor does not provide sufficient 9 weight to offset the aggravating factors. Dkt. 36, Ex. A at 5. According to Petitioner, the 10 court placed the burden of proof on [him] to prove that the mitigating circumstance 11 outweighed the aggravating circumstances. Dkt. 35 at 105. 12 Petitioner s argument is unpersuasive. The Supreme Court has held that a state may 13 place the burden of proving that mitigating circumstances outweigh aggravating 14 circumstances on a defendant. Kansas v. Marsh, 548 U.S. at 173 (citing Walton v. Arizona, 15 497 U.S. 639 (1990)). Claim 13 is therefore meritless. 16 In Claim 14, Petitioner alleges that the trial court improperly considered victim-impact 17 questionnaires in violation of the Eighth Amendment. Dkt. 35 at 106. Petitioner refers to 18 a statement provided by Deanne Haas, the victim s daughter, recommending the death 19 sentence. In Payne v. Tennessee, 501 U.S. 808, 827 (1991), the United States Supreme Court 20 held that while a state may permit the admission of victim impact evidence, it is not allowed 21 to present evidence concerning a victim s opinion about the appropriate sentence. Judges are 22 presumed to know and follow the law, Walton, 497 U.S. at 653, and in his special verdict, 23 Judge Kiger did not cite the victim s opinion as a reason for imposing the death penalty. 24 Dkt. 36, Ex. A. Petitioner has not rebutted the presumption that Judge Kiger considered only 25 appropriate factors in sentencing Petitioner to death. See Gretzler v. Stewart, 112 F.3d 992, 26 1009 (9th Cir. 1997) ( in the absence of any evidence to the contrary, [the Court] must 27 assume that the trial judge properly applied the law and considered only the evidence he 28 knew to be admissible ). Claim 14 is without merit. - 61 - 1 In Claim 16, Petitioner alleges that the trial court denied his rights under the Fifth, 2 Sixth, and Fourteenth Amendments by forcing him to choose between wearing a leg brace 3 or having courtroom deputies placed so close to him that, according to Petitioner, they 4 infringed on his right to communicate with counsel. Dkt. 35 at 109. 5 Under clearly-established federal law, the State is precluded from using visible 6 shackles on a defendant before a jury absent special security needs. See Deck v. Missouri, 7 544 U.S. 622 (2005); Holbrook v. Flynn, 475 U.S. 560 (1986); Illinois v. Allen, 397 U.S. 337 8 (1970). Petitioner chose not to wear a leg brace and therefore was not visibly shackled. See 9 RT 3/7/97 at 3-5. Nothing in the record demonstrates that deputies were able to overhear or 10 view any confidential communications between Petitioner and his attorneys or that their 11 presence had any effect on Petitioner s ability to communicate with counsel. Claim 16 is 12 meritless. 13 In Claim 17, Petitioner alleges that the reasonable doubt instruction given by the trial 14 court lowered the State s burden of proof, depriving Petitioner of his right to due process 15 under the Fourteenth Amendment and his right to trial by jury under the Sixth and Fourteenth 16 Amendments. Dkt. 35 at 110. This claim is meritless under Victor v. Nebraska, 511 U.S. 17 1 (1994), and State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995) (adopting 18 standard instruction consistent with that approved in Victor). 19 In Claim 19, Petitioner alleges that his conviction for armed robbery violated his right 20 to due process pursuant to the Fourteenth Amendment because there was insufficient 21 evidence to support the conviction. Dkt. 35 at 114. In Claim 20, Petitioner contends that 22 because insufficient evidence exists to support the armed robbery conviction, his felony 23 murder conviction violates the due process clause of the Fourteenth Amendment and must 24 be vacated. Id. at 20. 25 A habeas petitioner challenging the sufficiency of the evidence is entitled to relief 26 only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt 27 based on the trial evidence. Jackson, 443 U.S. at 324. The evidence must be considered in 28 the light most favorable to the prosecution and a court may not substitute its judgment for - 62 - 1 that of the jury. Id. at 319. [A] federal habeas court faced with a record of historical facts 2 must presume even if it does not affirmatively appear in the record that the trier of fact 3 resolved any such conflicts in favor of the prosecution, and must defer to that resolution. 4 Id. at 326. 5 At the time of the time of the murder, robbery was defined as follows: 6 A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property. 7 8 9 A.R.S § 13-1902. To commit armed robbery the defendant must have been armed with or 10 threatened the use of a deadly weapon. A.R.S. § 13-1904. From the evidence presented at 11 trial, namely Kester s testimony, a rational juror could find beyond a reasonable doubt that 12 Petitioner used force to prevent resistance when he shot Haas to death and took his property. 13 Claim 19 is meritless. 14 Claim 20 is meritless because sufficient evidence supported the underlying armed 15 robbery conviction and because the jury also convicted Petitioner of premeditated first- 16 degree murder. 17 In Claim 26, Petitioner alleges that his sentences for the non-capital offenses were 18 aggravated in violation of his Sixth Amendment right to trial by jury. Dkt. 35 at 124. As 19 described above in the Court s analysis of Claim 11, this claim is meritless because neither 20 Apprendi nor Blakely v. Washington, 542 U.S. 296 (2004), applies retroactively. See 21 Cooper-Smith, 397 F.3d at 1246. 22 Conclusion 23 Because the claims appellate counsel failed to raise are without merit, Petitioner 24 cannot show a reasonable probability that he would have prevailed on appeal if they had been 25 raised. Therefore, he has failed to show that he was prejudiced by appellate counsel s 26 performance and he is not entitled to relief on Claim 22. 27 Claim 23 28 Petitioner asserts that [g]iven the procedures for post-conviction review in Arizona - 63 - 1 capital cases, [he] is constitutionally entitled to the effective representation of post-conviction 2 counsel. Dkt. 35 at 121. Petitioner specifically alleges that he was denied the effective 3 assistance of post-conviction counsel and his right to due process because of an unresolved 4 conflict between himself and counsel. Id. 5 There is no constitutional right to counsel in state post-conviction proceedings. See 6 Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Murray v. Giarratano, 492 U.S. 1, 7-12 7 (1989); Bonin v. Vasquez, 999 F.2d 425, 429-30 (9th Cir. 1993). Therefore, ineffective 8 assistance of PCR counsel is not a cognizable habeas claim. See 28 U.S.C. § 2254(I) ( The 9 ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction 10 proceedings shall not be a ground for relief in a proceeding arising under section 2254. ). 11 Claim 23 is denied. 12 Claim 25 13 Petitioner alleges that his convictions were obtained in violation of his right to a fair 14 trial and to due process of law under the Fifth, Sixth, Eighth, and Fourteenth Amendments 15 because Lisa Kester s plea agreement contained an unenforceable consistency provision. 16 Dkt. 35 at 131. Respondents concede that the claim is exhausted. Dkt. 36 at 91. 17 As Petitioner s trial approached, Kester entered into a plea agreement with the State. 18 The agreement required Kester to verify that all prior statements made to [Yavapai County 19 Detectives] Danny Martin and Roger Williamson were truthful. Appellee s Answering Br., 20 Ex. A at 2. It also required Kester to appear at any proceeding including trial upon the 21 request of the State and testify truthfully to all questions asked and to cooperate completely 22 with the State of Arizona in the prosecution of Petitioner. Id. at 2-3. The State was allowed 23 to dishonor the agreement if Kester violated any of its terms. Id. at 3. 24 The Arizona Supreme Court rejected Petitioner s claim that the plea agreement 25 contained a consistency provision in violation of his due process rights. Kayer, 194 Ariz. at 26 430-31, 984 P.2d at 38-39. Because Petitioner did not object to the agreement at trial, and 27 in fact used the agreement to attack Kester s credibility, the court reviewed the claim only 28 for fundamental error and found none. Id. The court did not reach a conclusion as to - 64 - 1 whether the agreement actually contained a consistency provision. Id. at 431 n.1, 984 P.2d 2 at 39. 3 Even if the plea agreement had contained a consistency provision, Petitioner would 4 not be entitled to relief on this claim. Petitioner has not cited, nor has the Court identified, 5 any Supreme Court authority addressing the due process implications of consistency 6 agreements.16 As the Ninth Circuit observed in Cook v. Schriro, there is no Supreme Court 7 case law establishing that consistency clauses violate due process or any other constitutional 8 provision. 538 F.3d 1000, 1017 (9th Cir. 2008). The Ninth Circuit concluded that, 9 [b]ecause it is an open question in the Supreme Court s jurisprudence, we cannot say that 10 the state court unreasonably applied clearly established Federal law by rejecting 11 Petitioner s claim. Id. (quoting Musladin, 549 U.S. at 77) (internal quotations omitted). 12 Claim 25 is denied. EVIDENTIARY DEVELOPMENT 13 14 Petitioner requests an evidentiary hearing or other forms of evidentiary development 15 with respect to Claims 9, 15, 16, 22, and 23. Dkt. 46. Pursuant to Townsend v. Sain, 372 16 U.S. 293, 312-13 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), 17 and limited by § 2254(e)(2), a federal district court must hold an evidentiary hearing in a 18 § 2254 case when: (1) the facts are in dispute; (2) the petitioner alleges facts which, if 19 proved, would entitle him to relief; and (3) the state court has not reliably found the 20 relevant facts after a full and fair evidentiary hearing at trial or in a collateral proceeding. 21 22 23 24 25 26 27 28 16 The federal appellate courts do not appear to have addressed the issue directly, although they have consistently held that [a]n agreement that requires a witness to testify truthfully in exchange for a plea is proper so long as the jury is informed of the exact nature of the agreement, defense counsel is permitted to cross-examine the accomplice about the agreement, and the jury is instructed to weigh the accomplice s testimony with care. Allen v. Woodford, 395 F.3d 979, 995 (9th Cir. 2005) (quoting United States v. Yarbrough, 852 F.2d 1522, 1537 (9th Cir. 1988)). Nor is Petitioner s claim supported by state law. In State v. Rivera, 210 Ariz. 188, 191, 109 P.3d 83, 86 (2005), the Arizona Supreme Court held that the co-defendants plea agreements, which required truthful testimony and avowals that prior statements were true, were not impermissible consistency agreements. - 65 - 1 See Hill v. Lockhart, 474 U.S. 52, 60 (1985) (upholding the denial of a hearing when 2 petitioner s allegations were insufficient to satisfy the governing legal standard); Bashor v. 3 Risley, 730 F.2d 1228, 1233-34 (9th Cir. 1984) (hearing not required when claim must be 4 resolved on state court record or claim is based on non-specific conclusory allegations); see 5 also Landrigan, 550 U.S. at 474 ( Because the deferential standards prescribed by § 2254 6 control whether to grant habeas relief, a federal court must take into account those standards 7 in deciding whether an evidentiary hearing is appropriate. ). Based on these principles, 8 Petitioner is not entitled to an evidentiary hearing or further evidentiary development. 9 With respect to Claim 9, because there is no Supreme Court precedent holding that 10 lethal injection violates the Constitution, Petitioner cannot gain habeas relief under the 11 AEDPA and is not entitled to evidentiary development. 12 As explained above, Claim 15 is procedurally barred. 13 With respect to Claim 16, alleging violations arising from the courtroom security 14 arrangements, Petitioner has neither identified any disputed facts nor allege[d] facts which, 15 if proved, would entitle him to relief. Townsend, 372 U.S. at 312-13. Therefore, he is not 16 entitled to an evidentiary hearing. 17 With respect to Claim 22, Petitioner s allegations of ineffective assistance of appellate 18 counsel are properly resolved on the record. See Gray v. Greer, 800 F.2d 644, 647 (7th 19 Cir.1985) ( it is the exceptional case where a claim ineffective assistance of appellate 20 counsel could not be resolved on the record alone ). Moreover, Petitioner has not identified 21 any disputed facts or alleged facts that would entitle him to relief. 22 Claim 23, alleging ineffective assistance of PCR counsel, is not cognizable. 23 CONCLUSION 24 For the reasons set forth above, Petitioner has failed to show that he is entitled to 25 habeas relief on any of his claims, and additional evidentiary development is neither required 26 nor warranted. 27 28 CERTIFICATE OF APPEALABILITY In the event Petitioner appeals from this Court s judgment, and in the interests of - 66 - 1 conserving scarce resources that might be consumed drafting and reviewing an application 2 for a certificate of appealability ( COA ) to this Court, the Court on its own initiative has 3 evaluated the claims within the petition for suitability for the issuance of a certificate of 4 appealability. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir. 5 2002). 6 Rule 22(b) of the Federal Rules of Appellate Procedure provides that when an appeal 7 is taken by a petitioner, the district judge who rendered the judgment shall either issue a 8 COA or state the reasons why such a certificate should not issue. Pursuant to 28 U.S.C. 9 § 2253(c)(2), a COA may issue only when the petitioner has made a substantial showing of 10 the denial of a constitutional right. This showing can be established by demonstrating that 11 reasonable jurists could debate whether (or, for that matter, agree that) the petition should 12 have been resolved in a different manner or that the issues were adequate to deserve 13 encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing 14 Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). 15 The Court finds that reasonable jurists could debate its resolution of Claims 1(B)(4) 16 and 2. For the reasons stated in this order, the Court declines to issue a COA with respect 17 to any other claims. 18 Based on the foregoing, 19 IT IS ORDERED that Petitioner s Amended Petition for Writ of Habeas Corpus, 20 21 22 23 24 25 26 27 Dkt. 35, is DENIED. The Clerk of Court shall enter judgment accordingly. IT IS FURTHER ORDERED that Petitioner s motion for evidentiary development, Dkt. 46, is DENIED. IT IS FURTHER ORDERED that the stay of execution entered by this Court on November 5, 2007, Dkt. 5, is VACATED. IT IS FURTHER ORDERED GRANTING a Certificate of Appealability as to the following issues: Whether Claim 1(B)(4) of the Amended Petition alleging ineffective assistance of counsel at sentencing is without merit. 28 - 67 - 1 2 Whether Claim 2 of the Amended Petition alleging that Petitioner s rights were violated when the trial court accepted his waiver of a continuance at sentencing is without merit. 3 IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of 4 this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 5 85007-3329. 6 DATED this 19th day of October, 2009. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 68 -

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