Spears, et al v. Schriro, et al, No. 2:2000cv01051 - Document 134 (D. Ariz. 2009)

Court Description: MEMORANDUM OF DECISION AND ORDER that Petitioner's First Amended Petition for Writ of Habeas Corpus 79 is denied with prejudice. The Clerk of Court shall enter judgment accordingly. ORDER vacating the stay of execution previously issued 3 . O RDER that a Certificate of Appealability is GRANTED as to the following: Whether this Court erred in denying evidentiary development in support of Claim 15-C and whether trial counsel rendered ineffective assistance by failing to adequately investigate and present available mitigation evidence at sentencing. ORDER that the Clerk of Court send a courtesy copy of this Order to Rachelle M. Resnick, Clerk of the Arizona Supreme Court. Signed by Judge Stephen M McNamee on 9/14/09. (TLJ)

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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 Anthony Marshall Spears, Petitioner, 11 12 vs. 13 Charles L. Ryan, et al.,1 Respondents. 14 15 16 17 18 19 20 21 22 23 ) ) ) ) ) ) ) ) ) ) ) No. CV-00-1051-PHX-SMM DEATH PENALTY CASE MEMORANDUM OF DECISION AND ORDER Petitioner Anthony Marshall Spears is a state prisoner under sentence of death. Before the Court is Petitioner s First Amended Petition, which raises twenty claims for habeas relief. (Dkt. 79.)2 Pursuant to the Court s general procedures governing resolution of capital habeas proceedings, the parties have completed briefing of both the procedural status and the merits of Petitioner s habeas claims. In a previous Order, this Court denied Petitioner s motion for discovery, evidentiary hearing, and an expansion of the record, and further denied a number of claims. (See Dkt. 120.) In this Order, the Court addresses Petitioner s remaining claims and concludes that he is not entitled to relief. 24 25 26 1 Charles L. Ryan is substituted for Dora B. Schriro, as Director, Arizona Department of Corrections. Fed. R. Civ. P. 25(d)(1). 27 2 28 Dkt. refers to the documents in this Court s file. 1 2 3 4 5 6 7 8 9 10 FACTUAL AND PROCEDURAL BACKGROUND The Arizona Supreme Court summarized the facts surrounding the crime and Petitioner s arrest and conviction as follows: Defendant lived near San Diego, California with his girlfriend JoAnn. Defendant had no income, so JoAnn supported him. Defendant had another female acquaintance in Phoenix named Jeanette (the victim) whom he had visited several times. Jeanette referred to defendant as her boyfriend and talked about their future plans together. The state presented evidence that, in late December 1991, Jeanette apparently began getting ready to take a trip with defendant. She had her 1984 Dodge Rampage truck serviced on December 27. Shortly thereafter, she requested an extended family leave from her employer. On January 2, 1992, defendant flew from San Diego to Phoenix, using a one-way plane ticket that Jeanette had purchased for him. Before leaving California, defendant told JoAnn that he was going to Phoenix to work on some airplanes for 3 or 4 days. Defendant brought a 9mm Beretta handgun with him to Phoenix. 11 12 13 14 The day that defendant arrived in Phoenix, Jeanette used her Mastercard to get a $700 cash advance, and she bought a watch and sleeping bag at Target. The next day, January 3, she got a $1000 cash advance using her Mastercard and a $500 cash advance using her Discover card. Later that day, defendant accompanied Jeanette to the bank where she had the title to her truck notarized, which made the title readily transferrable. No evidence indicates that Jeanette was alive after January 3. 15 16 17 18 19 On January 4, defendant wrote the following on a notepad that he kept on his gun cabinet: To anticipate death is worse than death itself. Only a matter of time. That same day he drove back to California in Jeanette s truck and arrived at JoAnn s around 10:30 p.m. Defendant told JoAnn that he bought the truck from an older couple for $3000. Upon his arrival, he had approximately 5 guns, some of which matched those belonging to Jeanette, two sleeping bags, and almost $1000 in cash. Defendant immediately purchased a gun cabinet upon his return. He put his 9mm Beretta in the cabinet, and it remained there until police seized it on January 25. 20 21 22 23 24 25 26 27 28 On January 19, a family was target shooting in a desert area near Ellsworth and Elliot Roads in Maricopa County when they discovered Jeanette s body and notified the police. Jeanette was wearing the same shirt she had on when a bank camera photographed her on January 3. The autopsy revealed that Jeanette had died from a gunshot wound to the back of her head with a medium or large caliber bullet. Based on the decomposition of her body and the weather conditions, the medical examiner opined that she could have been dead for 2 to 3 weeks by the time her body was discovered. On January 30, 11 days after Jeanette s body was found, police discovered at the scene a shiny 9mm shell casing later identified as having been fired from defendant s 9mm Beretta handgun. While searching Jeanette s home, the police discovered that her truck was missing. They also found a TV Guide open to January 3 and a receipt for the plane ticket that Jeanette had purchased for defendant. After getting defendant s name from the receipt, the police traced him to the San Diego area. On January 24, the Mesa Police Department telephoned the San Diego County Sheriff s -2- 1 2 3 4 5 6 7 Department to advise them that Jeanette was dead, her truck had been stolen, and defendant was a possible suspect. The Mesa police later sent an attempt to locate facsimile to San Diego confirming the phone conversation. The San Diego County sheriff arranged for surveillance of defendant s apartment complex. The deputies took defendant into custody when he arrived home on January 25 driving Jeanette s truck. Upon his arrest, defendant claimed to have a valid title to the truck in the glove compartment, but a brief search revealed none. Mesa police officers later processed the truck, and they in fact found in the glove compartment the title that Jeanette had notarized on January 3, and on the back of that document defendant s name was written in the space designated for the purchaser to whom the title was being reassigned. Jeanette signed the back of the title in blue ink on January 3 in the presence of the notary, and defendant s name was written in black ink and dated January 1. At the time of his arrest, defendant had not registered the truck in California. 8 State v. Spears, 184 Ariz. 277, 282-83, 908 P.2d 1062, 1067-68 (1996). 9 A jury convicted Petitioner of theft and first degree premeditated murder, and Maricopa 10 County Superior Court Judge Cheryl K. Hendrix sentenced him to death for the murder and 11 a term of imprisonment for the theft. On direct appeal, the Arizona Supreme Court affirmed. 12 See Spears, 184 Ariz. 277, 908 P.2d 1062. Subsequently, the United States Supreme Court 13 denied a petition for writ of certiorari. Spears v. Arizona, 519 U.S. 967 (1996). 14 Following denial of certiorari, the Arizona Supreme Court did not immediately issue 15 the mandate in this case because post-conviction counsel was unavailable. (See Dkt. 43 at 316 4.) In 1997, uncertain whether Arizona s delay in initiating state post-conviction proceedings 17 would adversely affect his ability to later seek federal habeas relief, Petitioner filed an initial 18 habeas application, a motion to appoint counsel, and a request for equitable tolling of the 19 statutory limitations period. See Spears v. Stewart, No. CV-97-0759-PHX-SMM. In 20 addition, sixteen other similarly-situated capital defendants filed initial habeas applications 21 in this District seeking the same relief. All of the cases were consolidated with Hedlund v. 22 Stewart, No. CV-97-755-PHX-SMM (consolidated). In Hedlund, this Court found that there 23 was a dearth of available post-conviction-relief (PCR) counsel as a result of Arizona s 24 attempts to opt in to Chapter 154 procedures,3 that the federal habeas statute of limitations 25 26 3 27 28 Chapter 154 of the Antiterrorism and Effective Death Penalty Act (AEDPA) provides procedural benefits in federal habeas cases filed by capital defendants to States that have opted in to its requirements. See Spears v. Stewart, 283 F.3d 992, 1008 (9th Cir. -3- 1 was not running for any of the petitioners, and that appointment of federal habeas counsel 2 was premature; the Court dismissed each application without prejudice for failure to exhaust 3 state court remedies. See id., slip op. at 4-5, 7-8 (D. Ariz. March 5, 1998). 4 In July 1998, the Arizona Supreme Court issued the mandate in Petitioner s case and 5 appointed PCR counsel for Petitioner. (ROA-PCR 144-146.)4 Following appointment, 6 counsel filed a PCR petition. (Id. 157.) The trial court denied relief without holding an 7 evidentiary hearing, and the Arizona Supreme Court denied a discretionary petition for 8 review. (ROA 161.) Petitioner then commenced these habeas proceedings. 9 Thereafter, Respondents moved this Court to apply Chapter 154 s expedited habeas 10 procedures to this case. (Dkt. 13.) Following briefing, the Court ruled that Arizona had not 11 met the statutory opt-in requirements established by 28 U.S.C. § 2261. (Dkt. 43.) Because 12 this was an exceptional issue of first impression in the District, the Court certified an 13 interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The Ninth Circuit concluded that 14 Arizona s statutory mechanism for the appointment and payment of post-conviction counsel 15 satisfied Chapter 154 s substantive requirements. See Spears v. Stewart, 283 F.3d 992, 1007 16 (9th Cir. 2002). However, because there was a twenty-month delay before such counsel was 17 appointed, the court ruled that Arizona could not take advantage of Chapter 154 s expedited 18 procedures in this case. Id. at 1018-19. Having answered the appellate issue, the Ninth 19 Circuit remanded to this Court for further proceedings. Id. at 1019. 20 21 22 2002). In order to receive Chapter 154 s expedited habeas procedures, a State must establish a post-conviction system which meets certain standards regarding appointment, payment and qualifications of post-conviction counsel. Id. at 1009 (citing 28 U.S.C. §§ 2263, 2266). 23 4 24 25 26 27 28 ROA refers to the three-volume record on appeal from trial and sentencing prepared for Petitioner s direct appeal to the Arizona Supreme Court (Case No. CR-930139-AP). RT refers to the reporter s transcripts of Petitioner s trial and sentencing proceedings. ME refers to the minute entries of the trial court. ROA-PCR refers to the nine-volume record on appeal from post-conviction proceedings prepared for Petitioner s petition for review to the Arizona Supreme Court (Case No. CR-99-0484-PC). A certified copy of the state court record was provided to this Court by the Arizona Supreme Court on November 20, 2000. (See Dkt. 14.) -4- 1 Following remand, Petitioner prepared and submitted an amended habeas petition. 2 (Dkt. 79.) The parties briefed the procedural status and merits of the claims presented, and 3 Petitioner moved for discovery, evidentiary hearing, and an expansion of the record. (Dkts. 4 89, 94, 102-03, 105.) The Court denied Petitioner s motions and dismissed Claims 1, 4, 11, 5 16, 17 (in part), and 18-20. (Dkt. 120.) The Court now addresses the procedural status 6 and/or merits of Petitioner s remaining claims. 7 PRINCIPLES OF EXHAUSTION AND PROCEDURAL DEFAULT 8 A writ of habeas corpus may not be granted unless it appears that a petitioner has 9 exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. 10 Thompson, 501 U.S. 722, 731 (1991). To exhaust state remedies, a petitioner must fairly 11 present the operative facts and the federal legal theory of his claims to the state s highest 12 court in a procedurally appropriate manner. O Sullivan v. Boerckel, 526 U.S. 838, 848 13 (1999); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 14 (1971). If a habeas claim includes new factual allegations not presented to the state court, 15 it may be considered unexhausted if the new facts fundamentally alter the legal claim 16 presented and considered in state court. Vasquez v. Hillery, 474 U.S. 254, 260 (1986). 17 Exhaustion requires that a petitioner clearly alert the state court that he is alleging a 18 specific federal constitutional violation. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 19 2004); see also Gray v. Netherland, 518 U.S. 152, 163 (1996) (general appeal to due process 20 not sufficient to present substance of federal claim); Lyons v. Crawford, 232 F.3d 666, 669- 21 70 (2000), as amended by 247 F.3d 904 (9th Cir. 2001) (general reference to insufficiency 22 of evidence, right to be tried by impartial jury, and ineffective assistance of counsel lacked 23 specificity and explicitness required); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) 24 ( The mere similarity between a claim of state and federal error is insufficient to establish 25 exhaustion. ). A petitioner must make the federal basis of a claim explicit either by citing 26 specific provisions of federal law or case law, Lyons, 232 F.3d at 670, or by citing state cases 27 that plainly analyze the federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 28 1158 (9th Cir. 2003) (en banc). -5- 1 In Arizona, there are two primary procedurally appropriate avenues for petitioners to 2 exhaust federal constitutional claims: direct appeal and PCR proceedings. Rule 32 of the 3 Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner 4 is precluded from relief on any claim that could have been raised on appeal or in a prior PCR 5 petition. Ariz. R. Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a) may be avoided 6 only if a claim falls within certain exceptions (subsections (d) through (h) of Rule 32.1) and 7 the petitioner can justify why the claim was omitted from a prior petition or not presented in 8 a timely manner. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(b), 32.4(a). 9 A habeas petitioner s claims may be precluded from federal review in two ways. First, 10 a claim may be procedurally defaulted in federal court if it was actually raised in state court 11 but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 12 729-30. The procedural bar relied on by the state court must be independent of federal law 13 and adequate to warrant preclusion of federal review. See Harris v. Reed, 489 U.S. 255, 262 14 (1989). A state ruling of procedural default is not independent if, for example, it depends 15 upon a federal constitutional ruling. See Stewart v. Smith, 536 U.S. 856, 860 (2002) (per 16 curiam). A state procedural bar is not adequate unless it was firmly established and regularly 17 followed at the time of the purported default. See Ford v. Georgia, 498 U.S. 411, 423-24 18 (1991). 19 Second, a claim may be procedurally defaulted if the petitioner failed to present it in 20 state court and the court to which the petitioner would be required to present his claims in 21 order to meet the exhaustion requirement would now find the claims procedurally barred. 22 Coleman, 501 U.S. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) 23 (stating that the district court must consider whether the claim could be pursued by any 24 presently available state remedy). If no remedies are currently available pursuant to Rule 32, 25 the claim is technically exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 26 735 n.1; see also Gray, 518 U.S. at 161-62. 27 Because the doctrine of procedural default is based on comity, not jurisdiction, federal 28 courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, -6- 1 468 U.S. 1, 9 (1984). As a general matter, the Court will not review the merits of a 2 procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the failure 3 to properly exhaust the claim in state court and prejudice from the alleged constitutional 4 violation, or shows that a fundamental miscarriage of justice would result if the claim were 5 not heard on the merits in federal court. Coleman, 501 U.S. at 750. 6 AEDPA STANDARD FOR RELIEF 7 Petitioner filed his petition after the effective date of the AEDPA. The AEDPA 8 established a substantially higher threshold for habeas relief with the acknowledged 9 purpose of reducing delays in the execution of state and federal criminal sentences. 10 Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 1939-40 (2007) (quoting Woodford v. 11 Garceau, 538 U.S. 202, 206 (2003)). The AEDPA s highly deferential standard for 12 evaluating state-court rulings . . . demands that state-court decisions be given the benefit of 13 the doubt. Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. 14 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 28 U.S.C. § 2254(d). 21 The phrase adjudicated on the merits refers to a decision resolving a party s claim 22 which is based on the substance of the claim rather than on a procedural or other non23 substantive ground. Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). The relevant 24 state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 25 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 26 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 (9th Cir. 2005). 27 The threshold question under AEDPA is whether [the petitioner] seeks to apply a rule 28 -7- 1 of law that was clearly established at the time his state-court conviction became final. 2 Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under subsection 3 (d)(1), the Court must first identify the clearly established Federal law, if any, that governs 4 the sufficiency of the claims on habeas review. Clearly established federal law consists 5 of the holdings of the Supreme Court at the time the petitioner s state court conviction 6 became final. Williams, 529 U.S. at 365; see Carey v. Musladin, 549 U.S. 70, 74 (2006); 7 Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). Habeas relief cannot be granted if 8 the Supreme Court has not broken sufficient legal ground on a constitutional principle 9 advanced by a petitioner, even if lower federal courts have decided the issue. Williams, 529 10 U.S. at 381; see Musladin, 549 U.S. at 77; Casey v. Moore, 386 F.3d 896, 907 (9th Cir. 11 2004). Nevertheless, while only Supreme Court authority is binding, circuit court precedent 12 may be persuasive in determining what law is clearly established and whether a state court 13 applied that law unreasonably. Clark, 331 F.3d at 1069. 14 The Supreme Court has provided guidance in applying each prong of § 2254(d)(1). The 15 Court has explained that a state court decision is contrary to the Supreme Court s clearly 16 established precedents if the decision applies a rule that contradicts the governing law set 17 forth in those precedents, thereby reaching a conclusion opposite to that reached by the 18 Supreme Court on a matter of law, or if it confronts a set of facts that is materially 19 indistinguishable from a decision of the Supreme Court but reaches a different result. 20 Williams, 529 U.S. at 405-06; see Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). In 21 characterizing the claims subject to analysis under the contrary to prong, the Court has 22 observed that a run-of-the-mill state-court decision applying the correct legal rule to the 23 facts of the prisoner s case would not fit comfortably within § 2254(d)(1) s contrary to 24 clause. Williams, 529 U.S. at 406; see Lambert, 393 F.3d at 974. 25 Under the unreasonable application prong of § 2254(d)(1), a federal habeas court may 26 grant relief where a state court identifies the correct governing legal rule from [the 27 Supreme] Court s cases but unreasonably applies it to the facts of the particular . . . case or 28 unreasonably extends a legal principle from [Supreme Court] precedent to a new context -8- 1 where it should not apply or unreasonably refuses to extend that principle to a new context 2 where it should apply. Williams, 529 U.S. at 407. For a federal court to find a state court s 3 application of Supreme Court precedent unreasonable under § 2254(d)(1), the petitioner 4 must show that the state court s decision was not merely incorrect or erroneous, but 5 objectively unreasonable. Id. at 409; see Landrigan, 127 S. Ct. at 1939; Visciotti, 537 U.S. 6 at 25. 7 Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state 8 court decision was based upon an unreasonable determination of the facts. Miller-El v. 9 Dretke, 545 U.S. 231, 240 (2005) (Miller-El II). A state court decision based on a factual 10 determination will not be overturned on factual grounds unless objectively unreasonable in 11 light of the evidence presented in the state-court proceeding. Miller-El, 537 U.S. 322, 340 12 (2003) (Miller-El I); see Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). In 13 considering a challenge under § 2254(d)(2), state court factual determinations are presumed 14 to be correct, and a petitioner bears the burden of rebutting this presumption by clear and 15 convincing evidence. 28 U.S.C. § 2254(e)(1); Landrigan, 127 S. Ct. at 1939-40; Miller-El 16 II, 545 U.S. at 240. However, it is only the state court s factual findings, not its ultimate 17 decision, that are subject to 2254(e)(1) s presumption of correctness. Miller-El I, 537 U.S. 18 at 341-42 ( The clear and convincing evidence standard is found in § 2254(e)(1), but that 19 subsection pertains only to state-court determinations of factual issues, rather than 20 decisions. ). 21 As the Ninth Circuit has noted, application of the foregoing standards presents 22 difficulties when the state court decided the merits of a claim without providing its rationale. 23 See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 24 1167 (9th Cir. 2002); Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). In those 25 circumstances, a federal court independently reviews the record to assess whether the state 26 court decision was objectively unreasonable under controlling federal law. Himes, 336 F.3d 27 at 853; Pirtle, 313 F.3d at 1167. Although the record is reviewed independently, a federal 28 court nevertheless defers to the state court s ultimate decision. Pirtle, 313 F.3d at 1167 -9- 1 (citing Delgado, 223 F.3d at 981-82); see also Himes, 336 F.3d at 853. Only when a state 2 court did not decide the merits of a properly raised claim will the claim be reviewed de novo, 3 because in that circumstance there is no state court decision on [the] issue to which to 4 accord deference. Pirtle, 313 F.3d at 1167; see also Menendez v. Terhune, 422 F.3d 1012, 5 1025-26 (9th Cir. 2005); Nulph v. Cook, 333 F.3d 1052, 1056-57 (9th Cir. 2003). DISCUSSION 6 7 Claim 2 8 Petitioner contends that the trial court violated his constitutional rights by failing to 9 suppress certain physical evidence obtained from his residence because the warrant 10 authorizing the search was not supported by probable cause.5 11 Respondents concede that the claim was fairly presented under the Fourth and Fourteenth 12 Amendments, but contest exhaustion regarding the Sixth Amendment. (Dkt. 89 at 13.) 13 Petitioner did not fairly present the Sixth Amendment aspect on direct appeal. However, the 14 Court concludes that the Sixth Amendment aspect of Claim 2 is technically exhausted but 15 procedurally defaulted because it does not allege facts or law which would exempt it from 16 preclusion and untimeliness pursuant to Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules 17 of Criminal Procedure were Petitioner to return to state court now. See Ariz. R. Crim. P. 18 32.2(b), 32.1(d)-(h); Coleman, 501 U.S. at 732, 735 n.1. Because Petitioner does not allege 19 cause and prejudice or miscarriage of justice, the Sixth Amendment aspect of Claim 2 is (Dkt. 79 at 35-38.) 20 21 22 23 24 25 26 27 28 5 Petitioner also asserts that the trial court s failure to suppress the physical evidence violated his due process rights under the Fifth Amendment. (Dkt. 79 at 35.) It is the Fourteenth Amendment, not the Fifth Amendment, that protects a person against deprivations of due process by a state. See U.S. Const. amend. XIV, § 1 ( nor shall any state deprive any person of life, liberty, or property without due process of law ); Castillo v. McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005) ( The Fifth Amendment prohibits the federal government from depriving persons of due process, while the Fourteenth Amendment explicitly prohibits deprivations without due process by the several States. ). Because the Fifth Amendment Due Process Clause does not provide a cognizable ground for relief regarding Petitioner s state court conviction, allegations that the Fifth Amendment Due Process Clause was violated are dismissed and will not be further discussed with respect to Petitioner s individual claims. - 10 - 1 procedurally barred. (See Dkt. 94 at 29.) 2 Discussion 3 A claim invoking Fourth Amendment rights does not provide a basis for granting 4 federal habeas relief from a state conviction if the petitioner had the opportunity to fully and 5 fairly litigate the claim in state court. See Stone v. Powell, 428 U.S. 465, 494 (1976); see 6 also Woolery v. Arave, 8 F.3d 1325, 1326-27 (9th Cir.1993) (concluding that, unless the 7 habeas petitioner was denied a full and fair opportunity to litigate his Fourth Amendment 8 claim, Stone requires dismissal of the claim). The relevant inquiry is whether the petitioner 9 was afforded a full and fair hearing in the state court, not whether the state court reached a 10 correct decision regarding the claim. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th 11 Cir.1996); Siripongs v. Calderon, 35 F.3d 1308, 1321 (9th Cir.1994) (noting that Stone v. 12 Powell makes irrelevant a habeas petitioner s argument that his Fourth Amendment claim 13 was not correctly decided). 14 Prior to trial, Petitioner filed a motion to suppress the physical evidence obtained from 15 the search of his residence. (ROA 11.) At an evidentiary hearing on the motion, Petitioner 16 cross-examined each of the State s witnesses. (RT 7/24/92; RT 8/7/92.) The trial court 17 ultimately concluded that there was sufficient evidence of probable cause for the search of 18 Petitioner s residence. (ME 8, 8/7/92.) Following his conviction and sentence, Petitioner 19 raised Claim 2 on direct appeal. (See Appellant s Opening Br. at 16-27.) The Arizona 20 Supreme Court affirmed the trial court s findings. See Spears, 184 Ariz. at 285, 908 P.2d at 21 1070. 22 The state court record demonstrates that Petitioner had a full and fair opportunity to 23 litigate Claim 2 during pre-trial proceedings and on direct appeal. See Spears, 184 Ariz. at 24 285, 908 P.2d at 1070. Therefore, pursuant to Stone v. Powell, Claim 2 does not provide a 25 basis for habeas relief. 26 Petitioner attempts to avoid this outcome by arguing that Stone is not applicable to 27 capital cases. (Dkt. 94 at 29.) He offers no support for this novel assertion, from the U.S. 28 Supreme Court or otherwise, and the Court rejects it summarily. See Plumlee v. Masto, 512 - 11 - 1 F.3d 1204, 1211 (9th Cir. 2008) (en banc) (applying the AEDPA and denying habeas relief 2 in the absence of controlling Supreme Court precedent). Moreover, the Ninth Circuit has 3 applied Stone in capital cases. See, e.g., Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 4 2005). Because Petitioner had a full and fair opportunity to litigate Claim 2 in state court, 5 it is dismissed as not cognizable. 6 Claim 3 7 Petitioner contends that statements he made to police officials were both involuntary 8 and taken in violation of Miranda. Petitioner argues that he is entitled to relief based upon 9 the Fifth, Sixth, and Fourteenth Amendments. Petitioner argued the Fifth and Fourteenth 10 Amendment aspects on direct appeal, and they are properly exhausted. (See Appellant s 11 Opening Br. at 27-36; Spears, 184 Ariz. at 285-86, 908 P.2d at 1070-71.) Although 12 Petitioner mentioned the Sixth Amendment, he neither presented any operative facts nor any 13 legal argument in support of this aspect of the claim (Appellant s Opening Br. at 35), and it 14 was not addressed by the Arizona Supreme Court, Spears, 184 Ariz. at 285-86, 908 P.2d at 15 1070-71. Mere citation does not constitute exhaustion. See Duncan v. Henry, 513 U.S. 364, 16 365-66 (1995) (stating that Petitioner must describe both the operative facts and the federal 17 legal theory so that the state courts have a fair opportunity to apply controlling legal 18 principles to the facts); Castillo v. McFadden, 370 F.3d 882, 890 (9th Cir. 2004) 19 ( Exhaustion demands more than drive-by citation, detached from any articulation of an 20 underlying federal legal theory. ). 21 The Court concludes that the Sixth Amendment aspect of Claim 3 is technically 22 exhausted but procedurally defaulted because it does not allege facts or law which would 23 exempt it from preclusion and untimeliness pursuant to Rules 32.2(a)(3) and 32.4(a) of the 24 Arizona Rules of Criminal Procedure were Petitioner to return to state court now. See Ariz. 25 R. Crim. P. 32.2(b), 32.1(d)-(h); Coleman, 501 U.S. at 732, 735 n.1. Because Petitioner does 26 not allege cause and prejudice or miscarriage of justice, the Sixth Amendment aspect of 27 Claim 3 is procedurally barred. 28 /// - 12 - 1 Background 2 The trial court conducted a hearing regarding Petitioner s voluntariness and Miranda 3 contentions. (ROA 17; RT 7/24/92; RT 11/23/92; RT 11/24/92.) At the hearing, Rudy 4 Zamora, a San Diego County homicide detective, testified that the Mesa Police Department 5 contacted him about Petitioner, who was an investigative lead in a homicide case and who 6 was allegedly driving the victim s stolen truck. (RT 7/24/92 at 17-20.) Arizona officials 7 advised that they would be filing a stolen vehicle report on behalf of the victim. (Id. at 20.) 8 After locating Petitioner s San Diego address and ordering surveillance on his apartment 9 complex, Zamora proceeded to the address. (Id. at 20-22.) At approximately noon, 10 Petitioner and his girlfriend, JoAnn Rebecca Forrester, drove into the complex in the victim s 11 vehicle. (Id. at 22.) After verifying the vehicle s status as stolen thru NCIC, a national 12 stolen vehicle registry, Zamora arrested both Petitioner and Forrester. (Id. at 22-28.) Zamora 13 testified that he did not advise either of them of their Miranda rights because he had no 14 intention of questioning them. (Id.; RT 11/23/92 at 121.) Both Petitioner and Forrester were 15 removed to a local sheriff s station. (RT 7/24/92 at 24-32.) 16 At the station, Petitioner was handcuffed to a bench to await processing into the jail. 17 (RT 11/23/92 at 129-30.) After processing, he was placed in a six-foot wide holding cell, 18 with a narrow wooden bench running along its width. (Id. at 133-34.) Petitioner was in the 19 holding cell for many hours into the night before his interview commenced. At the 20 voluntariness hearing, Petitioner testified that his cell was too cold and the bench not wide 21 enough for him to sleep comfortably; he also testified that they did not provide him with any 22 food while in the holding cell. (Id. at 320-21.) 23 Zamora testified that the holding cell was only twenty to thirty feet away from his desk 24 at the station and that the holding cell is part of the sheriff s office, receiving both air 25 conditioning and heat depending upon weather conditions. (RT 11/23/92 at 132-134.) 26 Zamora contended that he checked on Petitioner to see if he needed anything or if he wanted 27 to use the restroom and that another officer provided Petitioner with food. (Id. at 135.) 28 The trial court ruled that Petitioner s statements to police were not involuntary as a - 13 - 1 result of jail conditions. (RT 11/24/92 at 336-38.) The court specifically found the police 2 officers credible on the issue of providing a restroom break to Petitioner. (Id.) The court did 3 not find the temperature in the holding cell or any alleged lack of food unduly coercive. (Id.) 4 While Petitioner was in the holding cell, Mesa and San Diego police officers requested, 5 obtained, and executed a search warrant for Petitioner s apartment. (RT 7/24/92 at 34-39.) 6 After the search, Arizona homicide investigators started the interview with Petitioner at 4:00 7 a.m. (See RT 11/24/92 at 319-20; ROA 17 attach. at 1-79.) Investigators advised Petitioner 8 of his Miranda rights; he acknowledged and waived those rights and agreed to speak with 9 investigators. (ROA 17 attach. at 3.) The investigators did not focus their questioning on 10 the homicide; rather, they focused their questions on the stolen vehicle report and Petitioner s 11 contention that he had title to the vehicle. 12 [Police]: What if we talk to her [the victim] and she says, Hey he was in my house. He must have took the title and forged it. [Petitioner]: Well then it s her word against mine. [Police]: I m just playing devil s advocate. You know? [Petitioner]: It s just her word against mine then. You want to arrest me for stealing a car, then let me call a lawyer and I ll have a lawyer appointed to me and, because this is going no where. I didn t steal her car. I have a title in my possession some where in my house, and this is just ridiculous. [Police]: No, we re not, all we re trying to do is when we got called from . ... [Petitioner]: Well, I mean, how many times can I tell you, you know. I bought the car from her and I drove it here, and then I get arrested. [Police]: Did she seem like she was in a hurry to go somewhere? [Petitioner]: She seemed upset about something. I don t know what it was. You know, like I said, I didn t pry into her business. . . . 13 14 15 16 17 18 19 20 21 22 23 24 (Id. at 21.) Eventually, the investigators told Petitioner they knew the victim was dead; 25 Petitioner then demanded a lawyer and the interview was terminated shortly therafter. (Id. 26 at 79.) 27 The trial court determined that Petitioner had understood and properly waived his 28 Miranda rights. (RT 11/24/92 at 336-38.) The court concluded that Petitioner s reference - 14 - 1 to counsel in the exchange set forth above was ambiguous and that Petitioner did not 2 effectively invoke his right to counsel. (Id.) However, with regard to the second request for 3 counsel, made after learning that the police knew the victim was dead, the court concluded 4 that Petitioner s request was clear and unambiguous. (Id.) Accordingly, the court suppressed 5 Petitioner s statements following that invocation of counsel, and at trial the prosecution 6 played a redacted tape of the police interview.6 (See Dkt. 133.) 7 8 9 10 On direct appeal, the supreme court rejected Petitioner s voluntariness and Miranda claims. With regard to voluntariness, the court noted the following facts: When defendant arrived at the sheriff s station around noon on January 25, he was handcuffed to a bench for about an hour. He was then placed in a holding cell until 3:55 a.m. the next morning when the Mesa police interviewed him. . . . 11 13 . . . At the voluntariness hearing, police officers testified that defendant was given the opportunity to use the bathroom and could have lain down on the bench in his holding cell. Furthermore, in the course of his interview with police, defendant did not ask officers to have something to eat or to use the bathroom. 14 Spears, 184 Ariz. at 285-86, 908 P.2d at 1070-71. Based on these facts, the court found 15 Petitioner s statements voluntary because the conditions complained of were merely 16 uncomfortable and were not sufficient to overcome his free will. Id. at 286, 908 P.2d at 17 1071. 12 18 Regarding Petitioner s Miranda claim, the supreme court agreed with the trial court that 19 Petitioner s first reference to counsel did not constitute an unambiguous request and thus the 20 police were not required to stop questioning. Spears, 184 Ariz. at 285, 908 P.2d at 1070 21 (citing Davis v. United States, 512 U.S. 452 (1994)). The court further concluded that 22 Petitioner s second request for counsel was unambiguous and that police questioning should 23 have immediately stopped; however, it noted that none of Petitioner s statements following 24 25 26 27 28 6 From the tape played for the jury, the trial court ordered redacted the statements that followed Petitioner s second request for counsel. The judge further ordered redacted those parts of the victim s diary that had been read to Petitioner during the interrogation and which the court had determined must also be suppressed. (See RT 11/24/92 at 344-51; 11/30/92 at 476-80; ME 15, 11/30/92; see also Dkt. 133.) - 15 - 1 this invocation were introduced at trial. Id. 2 Discussion 3 Voluntariness 4 Petitioner contends that his statements were involuntary due to the unreasonable 5 conditions he had to endure at the jail prior to questioning. (Dkt. 79 at 38-43.) To ensure the 6 voluntariness of a statement, the court must consider the effect that the totality of the 7 circumstances had upon the will of the defendant. See Schneckloth v. Bustamonte, 412 U.S. 8 218, 226-27 (1973). Utilizing the totality of the circumstances test, both the characteristics 9 of the accused and the details of the interrogation are considered. See Dickerson v. United 10 States, 530 U.S. 428, 434 (2000); see also Haynes v. Washington, 373 U.S. 503, 513-14 11 (1963). Factors related to the accused include youth, lack of education, low intelligence, and 12 lack of advice regarding constitutional rights. See Schneckloth, 412 U.S. at 426. Factors 13 related to the interrogation include length of detention, the location of the interrogation, the 14 repeated or prolonged nature of the questioning, and the use of physical punishment, 15 including deprivation of food or sleep. Id.; see also Withrow v. Williams, 507 U.S. 680, 693- 16 94 (1993). 17 Here, Petitioner was not a youth when questioned; he was thirty-three years old. While 18 in the holding cell, due to his height, Petitioner could not comfortably stretch out and sleep. 19 (RT 11/24/92 at 319-21.) 20 questioning included advice regarding his constitutional rights. Everything else about his 21 interrogation was unremarkable regarding voluntariness. Based on this record, Petitioner s 22 free will was not overcome by his uncomfortable surroundings prior to questioning. See 23 Spears, 184 Ariz. at 286, 908 P.2d at 1071. Petitioner was not questioned until 4:00 a.m.; however, 24 In a factually similar situation, the Ninth Circuit concluded that indicia of coercion were 25 wholly absent where the suspect was interrogated after being detained for eight hours in a 26 windowless holding cell, without water or restroom facilities. See Clark, 331 F.3d at 1073. 27 Moreover, the Ninth Circuit has found voluntariness under conditions worse than those 28 alleged by Petitioner. See, e.g., Cunningham v. City of Wenatchee, 345 F.3d 802, 810-11 - 16 - 1 (9th Cir. 2003) (suspect s statement voluntary even though interrogation lasted eight hours, 2 suspect was denied request to call therapist despite having mental disorder and requiring 3 bi-polar medication, and interrogator suggested that cooperation could lead to treatment 4 rather than prison). 5 Petitioner cites Payne v. Arkansas, 356 U.S. 560 (1958), and Fikes v. Alabama, 352 6 U.S. 191 (1957), in support. In Payne, the involuntary confession involved a mentally- 7 challenged 19-year-old African American held incommunicado for three days with little food 8 and a police officer s threat to expose him to mob violence if he did not confess. In Fikes, 9 the involuntary confession involved a mentally-challenged defendant who was possibly 10 schizophrenic, isolated for a week without access to his father or attorney, and questioned 11 daily for several hours at a time, and whose confession did not occur until the fifth day of 12 incarceration. These cases are clearly distinguishable and do not support the conclusion that 13 Petitioner s statements were coerced due to uncomfortable jail conditions prior to 14 questioning. 15 voluntary was not based on an unreasonable determination of the facts or application of 16 controlling federal law. The Arizona Supreme Court s decision finding Petitioner s statements 17 Right to Counsel 18 In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that any prisoner 19 in custodial interrogation must be informed, prior to questioning, of his right to an attorney 20 and to have an attorney present during questioning. In addition, [o]nce warnings have been 21 given, the subsequent procedure is clear. . . . If the individual states that he wants an attorney, 22 the interrogation must cease until an attorney is present. Miranda, 384 U.S. at 473-74. In 23 Edwards v. Arizona, 451 U.S. 477, 483-84 (1981), the Court confirmed that after being 24 advised of his Miranda rights, the accused may himself validly waive his right and respond 25 to interrogation so long as the waiver is voluntary, knowing, and intelligent. Thus, a suspect 26 who knowingly and voluntarily waives their right to counsel after having that right explained 27 to them has indicated their willingness to deal with the police unassisted. See Davis, 512 28 U.S. at 460-61. - 17 - 1 To invoke the right to counsel during an interrogation after being advised of and validly 2 waiving Miranda rights, the suspect must articulate his desire to have counsel present 3 sufficiently clearly that a reasonable police officer in the circumstances would understand 4 the statement to be a request for an attorney. Id. at 459; see also Clark, 331 F.3d at 1070 5 (stating that whether an accused actually invoked his right to counsel is an objective inquiry). 6 However, if the reference to an attorney is ambiguous or equivocal such that an officer only 7 understands that the suspect might be invoking the right to counsel, Supreme Court precedent 8 does not require the cessation of questioning. Davis, 512 U.S. at 459. If the request is 9 ambiguous, the Davis Court suggested that it would be good police practice to clarify 10 whether or not the suspect wants an attorney, but the Court declined to adopt a rule requiring 11 officers to ask clarifying questions. Id. at 461. 12 At the beginning of the Petitioner s interrogation, the officers read his Miranda rights 13 and engaged him in a colloquy to ensure that he understood those rights. (ROA 17 at 2-3.) 14 Petitioner indicated to the officers that he understood his rights and agreed to respond to their 15 questions. (Id. at 3.) Thus, Petitioner indicated his willingness to deal with the police 16 unassisted. See Davis, 512 U.S. at 460-61. 17 Petitioner contends that his first request for counsel was unambiguous and that 18 questioning should have ceased. (Dkt. 79 at 40.) However, Petitioner conceded in his 19 opening brief on direct appeal that his first request for counsel was ambiguous. (See 20 Appellant s Opening Br. at 35 ( Admittedly, Mr. Spears first request for an attorney did not 21 constitute an unequivocal request for counsel. ).) The doctrine of judicial estoppel prevents 22 Petitioner from changing his position during these judicial proceedings. See Russell v. Rolfs, 23 893 F.2d 1033, 1037 (9th Cir. 1990). 24 Moreover, even if this Court declined to invoke judicial estoppel against Petitioner, 25 which is discretionary, the Court alternatively concludes and agrees with the Arizona 26 Supreme Court that Petitioner s first reference to counsel was not an unequivocal request that 27 counsel be appointed. Petitioner stated: You want to arrest me for stealing a car, then let 28 me call a lawyer and I ll have a lawyer appointed to me and, because this is going no where. - 18 - 1 I didn t steal her car. (ROA 17 attach. at 21.) Petitioner plainly used conditional and 2 uncertain language in addressing the officers, and such language did not invoke counsel in 3 an unambiguous manner. When the police responded by changing course and pursuing a 4 different line of questions, Petitioner responded to those questions; he did not indicate that 5 he was requesting counsel. (Id.) Petitioner knew how to invoke counsel; he chose not to do 6 so. 7 Under Davis, the officers were not required to ask clarifying questions. 512 U.S. at 8 461. The conclusion that Petitioner s request did not invoke counsel is supported by Davis 9 and Clark. In Davis, the Supreme Court concluded that maybe I should talk to a lawyer 10 was ambiguous and did not invoke counsel. Id. In Clark, the Ninth Circuit similarly 11 concluded that I think I would like to talk to a lawyer was ambiguous and did not invoke 12 counsel. Clark, 331 F.3d at 1071. Thus, the Arizona Supreme Court s conclusion that 13 Petitioner s first reference to counsel did not unequivocally invoke his right to counsel was 14 not based on an unreasonable determination of the facts or application of controlling federal 15 law. 16 Petitioner also contends that the prosecution violated Miranda by introducing 17 statements after his second reference to counsel. (Dkt. 79 at 43.) However, the Arizona 18 Supreme Court concluded that the prosecution did not introduce any statements that followed 19 this unequivocal invocation of Petitioner s right to counsel. See Spears, 184 Ariz. at 286, 20 908 P.2d at 1071. The redacted tape played to the jury supports this finding; after Petitioner 21 invoked counsel, no further statement by Petitioner was submitted to the jury. (See Dkt. 22 133.) The Arizona Supreme Court s conclusion that no improper statements were admitted 23 after Petitioner invoked counsel was not contrary to or an unreasonable application of clearly 24 established federal law. Petitioner is not entitled to relief on Claim 3. 25 Claims 5 and 15-B 26 In Claim 5, Petitioner alleges that he was denied his right to present a complete defense 27 at trial because the prosecution failed to disclose the felony conviction of one of its 28 witnesses, Michael Smith. (Dkt. 79 at 50-52.) In Claim 15-B, Petitioner contends that - 19 - 1 counsel rendered ineffective assistance at trial by not fully investigating Smith s prior felony 2 conviction and subsequent arrest for embezzlement from the Krueger Company, where both 3 Smith and the victim worked. (Dkt. 79 at 85-87.) Respondents concede that Petitioner 4 properly exhausted these claims. (Dkt. 89 at 21, 37.) They contend that Smith only provided 5 factual information about the victim s personnel matters at the company and, therefore, 6 impeaching Smith s testimony at trial would not have affected the verdict. (Dkt. 89 at 21- 7 22.) Respondents further argue that Petitioner s allegations of ineffective assistance do not 8 establish Strickland prejudice. (Id. at 41-42.) 9 Background 10 At trial, prosecution witness Michael Smith testified that he worked for the Krueger 11 Company as its controller and personnel director. (RT 11/30/92 at 482.) Smith testified 12 about various personnel matters regarding the victim, including her job description, wages, 13 and work schedule. (Id. at 482-87.) Smith testified that during the company shut-down over 14 the December holidays, the victim called the company to request a leave of absence due to 15 a family emergency. (Id.) 16 After Petitioner s conviction, but prior to sentencing, Petitioner learned that Smith had 17 a prior felony conviction that was not disclosed by the prosecution. (RT 3/5/93 at 3-8.) The 18 trial court ordered additional briefing on this issue. (RT 3/12/93 at 13.) The state conceded 19 it was unaware of Smith s prior felony conviction and therefore did not disclose it. (ROA 20 60.) Nonetheless, it argued that nondisclosure of Smith s prior felony conviction was not 21 material pursuant to Brady v. Maryland, 373 U.S. 83 (1963), because Smith only testified 22 about Petitioner s employment information at the Krueger Company. (Id.) Therefore, 23 impeachment of Smith would not have undermined confidence in the verdict. (Id.) 24 Petitioner advised the court that Smith had been convicted of felony embezzlement and 25 felony misapplication by a bank employee and had been incarcerated for two years in 26 California. (ROA 61.) Petitioner argued that if Smith s conviction had been properly 27 disclosed, he could have investigated Smith for possible information inculpating Smith in the 28 victim s death. (Id.) - 20 - 1 The trial court concluded that, even if defense counsel had impeached Smith at trial 2 with his prior felony conviction, it would not have affected the verdict because of the limited 3 factual nature of Smith s testimony. (ME 30.) On appeal, the Arizona Supreme Court 4 agreed: 5 6 7 8 9 10 11 12 13 14 15 Smith was the personnel director at Jeanette s place of employment, and he testified that: (1) Jeanette was not at work on January 6, 1992; (2) he later learned that she had called to request a leave of absence for a family problem; (3) Jeanette s mother had called her place of work around mid-January looking for her daughter; and (4) Smith had called the police after a co-worker had seen a news bulletin about an unidentified body and had recognized some of Jeanette s personal belongings. Smith s prior felony convictions could only have been used for impeachment purposes under rule 609(a), Arizona Rules of Evidence, and it is likely that other employees could have verified Smith s factual testimony. Defendant could not have used the convictions or subsequent arrest to show that Smith committed the murder because none of that evidence had an inherent tendency to connect Smith to Jeanette s death. See State v. Fulminante, 161 Ariz. 237, 252, 778 P.2d 602, 617 (1988), aff d, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ( Before a defendant may introduce evidence that another person may have committed the crime, the defendant must show that the evidence has an inherent tendency to connect such other person with the actual commission of the crime. ). Under these circumstances, we agree with the trial court that a new trial was not warranted because disclosure of Smith s prior conviction would not have changed the jury verdict. Spears, 184 Ariz. at 287-88, 908 P.2d at 1072-73. 16 During state post-conviction proceedings, Petitioner gathered evidence regarding 17 Smith s embezzlement activities and his cooperation with governmental authorities as part 18 of their criminal investigation. (ROA-PCR 157 at 22-26.) Petitioner contended that trial 19 counsel rendered ineffective assistance at trial because they did not investigate Smith more 20 fully to determine if any there was any evidence that Smith may have committed the murder. 21 (ROA-PCR 157 at 22-26.) The trial court determined that Petitioner s mere allegations did 22 not establish Strickland prejudice. (ROA-PCR 161 at 11-12.) 23 Discussion 24 Claim 5 25 Under Brady v. Maryland, 373 U.S. 83, 87 (1963), a successful Brady claim requires 26 three findings: (1) the prosecution suppressed evidence; (2) the evidence was favorable to 27 the accused; and (3) the evidence was material to the issue of guilt or punishment. Evidence 28 is material if there is a reasonable probability that, had the evidence been disclosed to the - 21 - 1 defense, the result of the proceeding would have been different. A reasonable probability 2 is a probability sufficient to undermine confidence in the outcome. United States v. Bagley, 3 473 U.S. 667, 682 (1985); see also Harris v. Vasquez, 949 F.2d 1497, 1528 (9th Cir. 1990). 4 The prosecutor s duty to disclose material evidence includes impeachment as well as 5 exculpatory evidence. Bagley, 473 U.S. at 676. In Kyles v. Whitley, 514 U.S. 419, 436-37 6 (1995), the Supreme Court further elaborated upon materiality regarding impeachment 7 evidence, concluding that nondisclosed impeachment evidence must be evaluated piece by 8 piece and cumulatively in the context of the whole case. Id. at 436 n.10. 9 The Court assesses whether, if the prosecutor had disclosed Smith s felony conviction, 10 it would have placed the case in such a different light so as to undermine confidence in the 11 jury verdict. See, e.g., Kopycinski v. Scott 64 F.3d 223, 226 (5th Cir. 1995) (discussing the 12 nondisclosed felony conviction of a key prosecution witness and concluding that it was not 13 material because the evidence at trial corroborated his testimony); see also State v. Borbon, 14 146 Ariz. 392, 706 P.2d 718 (1985). At trial, Smith was only a fact witness, testifying to 15 personnel matters at the victim s workplace. See Spears, 184 Ariz. at 287-88, 908 P.2d at 16 1072-73. Smith was not an important or key witness for the prosecution. Id. Thus, 17 impeachment of his testimony would have had little effect on the verdict. The state court s 18 determination that the failure to disclose Smith s conviction was immaterial under Brady was 19 not based on an unreasonable determination of the facts or application of controlling federal 20 law. Petitioner is not entitled to relief on Claim 5. 21 Claim 15-B 22 Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 23 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of counsel, a petitioner 24 must show that counsel s performance was deficient and that the deficient performance 25 prejudiced his defense. Id. at 687. The performance inquiry asks whether counsel s 26 assistance was reasonable considering all of the circumstances. Id. at 688-89. [A] court 27 must indulge a strong presumption that counsel s conduct falls within the wide range of 28 reasonable professional assistance; that is, the defendant must overcome the presumption - 22 - 1 that, under the circumstances, the challenged action might be considered sound trial 2 strategy. Id. at 689. 3 A petitioner must affirmatively prove prejudice by show[ing] that there is a reasonable 4 probability that, but for counsel s unprofessional errors, the result of the proceeding would 5 have been different. Id. at 694. A reasonable probability is a probability sufficient to 6 undermine confidence in the outcome. Id. The assessment of prejudice should proceed 7 on the assumption that the decision-maker is reasonably, conscientiously, and impartially 8 applying the standards that govern the decision. Id. at 695. If the state s case is weak, there 9 is a greater likelihood of a reasonable probability that the outcome of the trial would have 10 been different. See Johnson v. Baldwin, 114 F.3d 835, 839-40 (9th Cir. 1997). A court need 11 not address both components of the inquiry, or follow any particular order in assessing 12 deficiency and prejudice. Strickland, 466 U.S. at 697. If it is easier to dispose of an 13 ineffectiveness claim on the ground of lack of prejudice, without evaluating counsel s 14 performance, then that course should be taken. Id. 15 During Petitioner s PCR proceedings, Petitioner gathered evidence regarding Smith s 16 embezzlement activities and his cooperation with governmental authorities in their criminal 17 investigation. (ROA-PCR 157 at 22-26.) As a result of his investigation, Petitioner argued 18 that trial counsel should have investigated Smith s activities because these activities, 19 combined with certain entries in the victim s diary, could have led to information that 20 someone else committed the murder. (Id.) He repeats these same allegations in his habeas 21 petition. (Dkt. 79 at 85-87.) 22 The Ninth Circuit holds that speculative and conclusory allegations that are not 23 supported by specific facts do not establish Strickland prejudice. See James v. Borg, 24 F.3d 24 20, 26 (9th Cir. 1994). Petitioner s speculative allegation that additional investigation could 25 have led to inculpatory evidence against someone else is insufficient to establish prejudice. 26 Recognizing the conclusory nature of his allegations, Petitioner indicated in his habeas 27 petition that evidence in support of Strickland prejudice would be outlined in his motion for 28 evidentiary development. (Dkt. 94 at 49.) It was not. (See Dkt.102 at 7-74; Dkt. 105 at 23- 23 - 1 27.) Therefore, the state court s determination that Petitioner failed to establish Strickland 2 prejudice and consequently ineffective assistance, was not contrary to or an unreasonable 3 application of clearly established federal law. Petitioner is not entitled to relief for Claim 15- 4 B. 5 Claim 6 6 Petitioner alleges insufficient evidence existed to support his first degree murder 7 conviction because the prosecution failed to establish the element of premeditation. (Dkt. 8 79 at 53-55.) Although Respondents contest exhaustion, Petitioner fairly presented the 9 Fourteenth Amendment aspect of this claim on direct appeal. (See Appellant s Opening 10 Brief at 58-60.) Petitioner cited State v. Kreps, 146 Ariz. 446, 449, 706 P.2d 1213, 1216 11 (1985), which analyzed the due process standard of Jackson v. Virginia, 443 U.S. 307 (1979), 12 to resolve whether sufficient evidence of premeditation existed for a first degree murder 13 conviction. See Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc) (holding 14 that citation of state authority that plainly analyzes the federal constitutional claim is 15 sufficient for exhaustion). Thus, the due process allegation in Claim 6 was properly 16 exhausted. 17 Petitioner did not fairly present the Sixth Amendment aspect on direct appeal.7 18 However, the Court concludes that it is technically exhausted but procedurally defaulted 19 20 21 22 23 24 25 26 27 28 7 Petitioner also alleges that his right to be free of cruel and unusual punishment pursuant to the Eighth Amendment was violated. The right to be free of cruel and unusual punishment, by definition, is a protection related to the imposition or carrying out of a sentence. In other words, the protection afforded by the Eighth Amendment does not attach until a person is convicted and subject to punishment by the state. See Ingraham v. Wright, 430 U.S. 651, 664, 667, 671 n.40 (1977) (summarizing that the Eighth Amendment circumscribes only the type of punishment imposable on those convicted, punishment grossly disproportionate to the crime and what can be criminalized and punished); Bell v. Wolfish, 441 U.S. 520, 536 n.16 (1979) (noting that the Eighth Amendment has no application to pretrial detainees). Because the Eighth Amendment does not provide a cognizable ground for relief regarding conviction-related claims, this aspect of the claim is dismissed and will not be further discussed with respect to this and any other conviction-related claims in which it has been asserted. - 24 - 1 because Petitioner does not allege facts or law which would exempt it from preclusion and 2 untimeliness pursuant to Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules of Criminal 3 Procedure were Petitioner to return to state court now. See Ariz. R. Crim. P. 32.2(b), 4 32.1(d)-(h); Coleman, 501 U.S. at 732, 735 n.1. Because Petitioner does not allege cause and 5 prejudice or miscarriage of justice, the Sixth Amendment aspect of Claim 6 is procedurally 6 barred. (See Dkt. 94 at 36.) 7 Discussion 8 The Arizona Supreme Court found and concluded that there was sufficient evidence of 9 10 11 12 13 14 15 16 17 18 premeditation to support Petitioner s first degree murder conviction: In determining whether there was sufficient evidence of premeditation, this court will not reweigh the evidence and will view it in the light most favorable to sustaining the conviction. Kreps, 146 Ariz. at 449, 706 P.2d at 1216. In this case, the evidence showed that: (1) defendant had Jeanette purchase a one-way plane ticket so that he could fly to Phoenix; (2) he left for Phoenix with a 9mm Beretta gun in his possession; (3) he told his California girlfriend that he was coming to Phoenix to work on some airplanes, but no evidence showed that he did any work while in Arizona; (4) Jeanette requested a leave of absence from work; (5) after defendant arrived in Phoenix, Jeanette got cash advances on her credit cards and prepared to sign her truck title over to defendant; and (6) Jeanette was shot in the back of the head, which is inconsistent with a heat-of-passion murder. Based on this evidence, a rational trier of fact could have believed that defendant deliberately planned to kill Jeanette before he committed the murder. Therefore, the trial court did not err in finding that the state had sufficiently proven premeditation. Spears, 184 Ariz. at 289-290, 908 P.2d at 1074-75. 19 Petitioner contends that the state courts misconstrued the evidence about his travel to 20 Phoenix on a one-way plane ticket because he had planned to purchase the victim s truck and 21 drive the truck back to San Diego. (Dkt. 79 at 53-54.) Petitioner acknowledges that he took 22 his 9mm handgun on the trip and that prior to her death the victim contacted her employer 23 regarding taking a leave of absence. (Id. at 54.) Despite this and the other evidence at trial, 24 he contends that the prosecution did not establish premeditation. (Id.) 25 On habeas review, the rational factfinder standard is used to determine whether there 26 is sufficient evidence to support a state court s finding of the elements of the crime. See 27 Lewis v. Jeffers, 497 U.S. 764, 781 (1990). The question is whether, after viewing the 28 evidence in the light most favorable to the prosecution, any rational trier of fact could have - 25 - 1 found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. 2 at 319. A habeas court faced with a record of historical facts that supports conflicting 3 inferences must presume even if it does not affirmatively appear in the record that the 4 trier of fact resolved any such conflicts in favor of the prosecution and must defer to that 5 resolution. Id. at 326; see also Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (per 6 curiam). The Jackson standard is applied to the substantive elements of the criminal offense 7 as defined by state law. See Davis v. California, 384 F.3d 628, 639 (9th Cir. 2004). Under 8 the AEDPA, a conviction will not be overturned unless it is contrary to or an unreasonable 9 application of clearly established federal law. See Juan H. v. Allen, 408 F.3d 1262, 1275 n.13 10 (9th Cir. 2005); Bruce, 376 F.3d at 960 (O Scannlain, J., concurring). 11 Under Arizona law, premeditation requires that the defendant acts with either the 12 intention or knowledge that he will kill another human being, when such intention or 13 knowledge precedes the killing by a length of time to permit reflection. An act is not done 14 with premeditation if it is the instant effect of a sudden quarrel or heat of passion. A.R.S. § 15 13-1101(1) (West 1992).8 To establish that Petitioner premeditated the murder, the state 16 must prove that Petitioner made a decision to kill before committing the act. See State v. 17 Gulbrandson, 184 Ariz. 46, 65, 906 P.2d 579, 598 (1995). 18 In this case, the Arizona Supreme Court carefully relied on six pieces of circumstantial 19 evidence to conclude that Petitioner premeditated the murder. Spears, 184 Ariz. at 289-290, 20 908 P.2d at 1074-75. In Arizona, the standard for establishing premeditation is not high; the 21 prosecution need only show that the defendant had time to reflect after forming the intent to 22 kill. See Cook v. Schriro, 538 F.3d 1000, 1024 (9th Cir. 2008); Summerlin v. Schriro, 341 23 F.3d 1082, 1093 (9th Cir. 2003) (en banc), overruled on other grounds, 542 U.S. 348 (2004); 24 Clabourne v. Lewis, 64 F.3d 1373, 1380-81 (9th Cir. 1995). 25 A rational trier of fact could conclude that the evidence presented at trial established 26 27 28 8 The definition of premeditation was amended in 1998 to indicate that proof of actual reflection is not required. 1998 Ariz. Sess. Laws, ch. 389 § 6. - 26 - 1 premeditation. First, the evidence supports a finding that Petitioner planned the murder. He 2 brought his 9mm handgun to Arizona, and an expert testified that a spent 9mm shell casing 3 from this handgun was found near the victim s body. Second, the evidence supports a 4 finding that Petitioner influenced the victim to call into work and request a leave of absence 5 so that interested friends would not notice her absence immediately. Third, the evidence 6 supports a motive for the killing. Petitioner had possession of the victim s truck, guns, and 7 other belongings. In addition, Petitioner, who was unemployed, possessed a significant 8 amount of cash when he returned to California, and the victim had obtained multiple cash 9 advances prior to her death. Finally, the manner of death of the victim being shot in the 10 back of the head does not support a sudden quarrel or heat of passion theory of murder. 11 Petitioner s arguments that the state courts misconstrued the evidence is irrelevant. 12 Conflicting inferences in regard to the evidence presented at trial are resolved in favor of the 13 prosecution. See Jackson, 443 U.S. at 325. Based on the foregoing, the Arizona Supreme 14 Court s conclusion that sufficient evidence of premeditation existed was not contrary to or 15 an unreasonable application of clearly established federal law. Petitioner is not entitled to 16 relief on Claim 6. 17 Claim 7 18 Petitioner argues that the Due Process Clause of the Fourteenth Amendment forbids 19 upholding his conviction for theft of property worth more than $750 but less than $1500 20 because there was insufficient proof of the value of the victim s 1984 Dodge Rampage truck. 21 (Dkt.79 at 55-56.) Respondents contend that this claim was not presented on direct appeal 22 and is defaulted. (Dkt. 89 at 24-25.) Regardless of exhaustion, the Court will deny this claim 23 because it is plainly meritless. See 28 U.S.C. § 2254(b)(2); Rhines v. Weber, 544 U.S. 269, 24 277 (2005). 25 This Court reviews whether, after viewing the evidence in the light most favorable to 26 the prosecution, any rational trier of fact could have found that the jury s determination of 27 value was established by sufficient evidence. See Jackson, 443 U.S. at 319; Mullaney v. 28 Wilbur, 421 U.S. 684, 691 (1975) (stating that state courts are the ultimate expositors of state - 27 - 1 law and that federal courts are bound by their constructions unless extreme circumstances 2 are present). 3 In Arizona, the jury assigns value to the stolen property, and its value determination 4 resolves the statutory penalty assigned to the theft conviction. See State v. Jones, 104 Ariz. 5 14, 15, 448 P.2d 70, 71 (1968); State v. Brokaw, 134 Ariz. 532, 535, 658 P.2d 185, 188 (App. 6 1982); A.R.S. § 13-1802(C), § 13-701). In theft cases, the proper inquiry is the property s 7 fair market value at the time of the loss. See State v. Ellis, 172 Ariz. 549, 551, 838 P.2d 8 1310, 1312 (App. 1992). Specific testimony about value is unnecessary if value may be 9 inferred from other evidence and the item is not something so unique as to require expert 10 testimony as to value. See State v. Blankinship, 127 Ariz. 507, 511-12, 622 P.2d 66, 70-71 11 (1980). 12 The Arizona Supreme Court found that there was sufficient evidence from which the 13 jury could conclude that the truck had a fair market value between $750 and $1,500, based 14 on the following: (1) Petitioner told his girlfriend that he had bought the truck for $3,000; 15 (2) a friend of the victim testified that the truck was in good condition; (3) the truck was 16 operable as evidenced by Petitioner driving it at the time of his arrest; and (4) the truck s lack 17 of uniqueness such that expert testimony on valuation was unnecessary. Spears, 184 Ariz. 18 at 290, 908 P.2d at 1075. 19 Under the AEDPA, the state court s application of the Jackson standard will not be 20 overturned unless it is objectively unreasonable. See Juan H., 408 F.3d at 1275 n.13. Given 21 the age, make, model, and working condition of the victim s eight-year-old truck all of 22 which was presented at trial a rational trier of fact could have determined that it was worth 23 between $750 and $1500. Therefore, the Arizona Supreme Court s conclusion that there was 24 sufficient evidence of value was not contrary to or an unreasonable application of clearly 25 established federal law. Petitioner is not entitled to relief on Claim 7. 26 Claim 8 27 Petitioner alleges that the jury engaged in misconduct during deliberations in violation 28 of his Fifth, Sixth and Fourteenth Amendment rights. (Dkt. 79 at 56-59.) Specifically, - 28 - 1 Petitioner argues that the jury improperly considered the fact that he did not testify at trial 2 and that the jury inappropriately reviewed external material during deliberations an alternate 3 juror s notes taken during trial. (Id.) Respondents concede that these allegations were 4 properly exhausted. (Dkt. 89 at 26.) 5 Background 6 Shortly after Petitioner s conviction, the jury foreperson, Janet Kovach,9 sent a letter 7 to the trial judge claiming that jurors disregarded the court s instructions by commenting 8 about Petitioner s failure to testify, speculating that did not testify because he was guilty. 9 (ROA 43c.) In his motion for new trial, Petitioner submitted an affidavit from Kovach, who 10 also claimed that an alternate juror s notes found their way into the jury room during 11 deliberations. (ROA 55.) Kovach did not, however, indicate any substantive content or 12 personal knowledge regarding the notes. 13 The trial court ordered briefing on the issue of the alternate juror s notes. (RT 3/12/93 14 at 8-9.) In response, the prosecution submitted affidavits from: (1) a trial juror who stated 15 that he did not see the alternate juror s notes in the jury room or hear that other jurors had 16 reviewed them; (2) the courtroom deputy who assisted during the trial stated that she 17 generally instructs excused alternate jurors to leave their notes in their chairs and that her 18 regular practice is to collect and shred these notes; and (3) the alternate juror who stated that, 19 after being dismissed from the panel, he left his notes on his chair as instructed and exited 20 the courtroom. (ROA 60.) The alternate juror s affidavit, however, did not include or 21 summarize any substantive content of the notes. 22 The trial court did not convene an evidentiary hearing, concluding that even if she 23 assumed that the notes were in the jury room during deliberations, they were not extrinsic 24 evidence and were not prejudicial. (RT 3/31/93 at 6-7.) Neither party disputes that the notes 25 of the alternate juror were destroyed and are unavailable. (See Appellant s Opening Br. at 26 9 27 28 Less than one year after Petitioner s conviction and sentence, Kovach married Petitioner. (Dkt. 79 at 57.) In his Amended Petition, Petitioner advised that his wife, Janet Spears, assisted PCR counsel in his defense during PCR proceedings. (Id.) - 29 - 1 64.) 2 Discussion 3 Regarding allegations that the jury improperly discussed Petitioner s failure to testify 4 5 6 7 8 9 at trial, the Arizona Supreme Court held: We agree with the trial court that the vague allegation in the foreperson s affidavit that the jury discussed defendant s failure to take the stand is not a sufficient basis for granting a new trial. See United States v. Martinez-Moncivais, 14 F.3d 1030, 1036-37 (5th Cir.), cert. denied, 513 U.S. 816, 115 S.Ct. 72, 130 L.Ed.2d 27 (1994) (holding that juror s post-trial affidavit alleging consideration of defendant s failure to testify is inadequate basis for new trial). In addition, further inquiry into this allegation may have required an improper inquiry into the mental processes of the jurors. See State v. Covington, 136 Ariz. 393, 396-97, 666 P.2d 493, 496-97 (1983); State v. Callahan, 119 Ariz. 217, 220, 580 P.2d 355, 358 (App.1978). 10 Spears, 184 Ariz. at 288, 908 P.2d at 1073. The Arizona Supreme Court is correct. It is a 11 firmly established rule that juror testimony is inadmissible to impeach a jury verdict. See 12 Tanner v. United States, 483 U.S. 107, 117 (1987). Strong policy considerations are at stake 13 under this rule: 14 15 16 17 18 19 20 [L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation to the destruction of all frankness and freedom of discussion and conference. Id. at 119-20 (quoting McDonald v. Pless, 238 U.S. 264, 267-68 (1915)). 21 An exception to the rule occurs only in situations where an extraneous influence is 22 alleged to have affected the jury s verdict. Tanner, 483 U.S. at 117. The Arizona Supreme 23 Court concluded that juror discussion about Petitioner s decision not to testify was not an 24 extraneous influence. See Spears, 184 Ariz. at 288-89, 908 P.2d at 1073-74. The Court 25 agrees. See Raley v. Ylst, 470 F.3d 792, 803 (9th Cir. 2006) (stating that a defendant s failure 26 to testify happens in the courtroom and is a part of the trial, not extrinsic to it). Thus, 27 Petitioner s allegation is subject to the rule that disallows jury testimony to impeach a 28 verdict. See Tanner, 483 U.S. at 117. The Arizona Supreme Court s decision was neither - 30 - 1 2 3 4 5 6 7 8 contrary to nor an unreasonable application of controlling federal law. Regarding alleged jury misconduct in reviewing the alternate juror s notes during deliberations, the Arizona Supreme Court discussed and resolved the issue, as follows: When a defendant alleges that jurors have considered facts not properly in evidence, the trial court must grant a new trial if it cannot find beyond a reasonable doubt that the extrinsic evidence did not contribute to the verdict. State v. Hansen, 156 Ariz. 291, 295, 751 P.2d 951, 955 (1988). A preliminary issue is whether the alternate s notes constitute extrinsic evidence that was not introduced at trial. The trial court refused to hold an evidentiary hearing on this issue and instead assumed that the notes were not extraneous evidence because they were taken at trial and were based on evidence that had been properly admitted. It is not inconceivable, however, that the alternate juror could have written some extraneous material in his trial notes. 9 10 11 12 13 14 15 16 17 18 19 Even if we assume that the notes were extraneous evidence, defendant is not entitled to a new trial because he has failed to show actual prejudice. See State v. Miller, 178 Ariz. 555, 560, 875 P.2d 788, 793 (1994). In Miller, an alternate juror, who had already been excused, left a note on a juror s car during deliberations expressing his belief that defendant was guilty. 178 Ariz. at 557, 875 P.2d at 790. We remanded that case for an evidentiary hearing. Miller, 178 Ariz. at 560, 875 P.2d at 793. In this case, the jury foreperson s affidavit stated only that the jury obtained the notes of the alternate juror and reviewed and considered them during deliberations. This affidavit does not indicate that the notes contained extraneous information that was damaging or prejudicial. Furthermore, the state submitted an affidavit from another juror stating that he did not review, nor did he see any other juror reviewing, notes from an alternate juror. See State v. Childs, 113 Ariz. 318, 323-24, 553 P.2d 1192, 1197-98 (1976) (discounting affidavit from one juror impeaching verdict because nothing in record indicated that jurors were guilty of misconduct). Under these circumstances, we conclude that the trial court did not abuse its discretion by denying defendant an evidentiary hearing and a new trial. See State v. Hooper, 145 Ariz. 538, 548, 703 P.2d 482, 492 (1985) (finding no prejudice warranting new trial where two dismissed alternate jurors met with two remaining jurors before deliberations). We caution that in the future, however, trial judges should err on the side of granting an evidentiary hearing so that they can gather as much relevant information as possible before making their rulings. 20 Spears, 184 Ariz. at 288-89, 908 P.2d at 1073-74. 21 Due process requires that the defendant be tried by an impartial jury, capable and 22 willing to decide the case solely on the evidence before it. See Smith v. Phillips, 455 U.S. 23 209, 217 (1982). The core principle is well-settled: evidence developed against a defendant 24 must come from the witness stand. Mattox v. United States, 146 U.S. 140, 149-50 (1892). 25 Although AEDPA restricts federal law to Supreme Court precedent, Ninth Circuit precedent 26 may be persuasive authority for purposes of determining whether a particular state court 27 decision is an unreasonable application of Supreme Court precedent. See Sims v. Roland, 28 - 31 - 1 414 F.3d 1148, 1151 (9th Cir. 2005). 2 When a jury considers extrinsic information that was not introduced at trial, it may 3 deprive a defendant of his Sixth Amendment right to confrontation, cross-examination, and 4 the assistance of counsel regarding such evidence. See Parker v. Gladden, 385 U.S. 363, 5 364-65 (1966); Fields v. Brown, 503 F.3d 755, 779 n.18 (9th Cir. 2007) (en banc). The Ninth 6 Circuit considers five factors relevant to determine whether a Sixth Amendment deprivation 7 occurred: (1) whether the extraneous evidence was actually received, and if so, how; (2) the 8 length of time it was available to the jury; (3) the extent to which the extraneous information 9 was discussed and considered by the jury; (4) whether the extraneous evidence was 10 introduced before a verdict was reached, and if so at what point in the deliberations; and (5) 11 any other matter which may bear on the issue of whether the introduction of extrinsic 12 material substantially and injuriously affected the verdict. Fields, 503 F.3d at 779 n.18. 13 The Ninth Circuit considers other factors that might suggest that the potential prejudice 14 of extrinsic information is diminished in a particular case: (1) whether the prejudicial 15 statement was ambiguously phrased; (2) whether the extraneous information was otherwise 16 admissible or merely cumulative of other evidence adduced at trial; (3) whether a curative 17 instruction was given or some other step taken to ameliorate the prejudice; (4) the trial 18 context; and (5) whether the statement was insufficiently prejudicial given the issues and 19 evidence in the case. See Jeffries v. Wood, 114 F.3d 1484, 1491-92 (9th Cir. 1997) (en banc), 20 overruled on other grounds, Lindh v. Murphy, 521 U.S. 320 (1997). The extent, if at all, to 21 which the jurors saw or discussed extrinsic evidence is a question of historical fact to which 22 the state court s findings are entitled to a presumption of correctness. See 28 U.S.C. § 23 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007); see also Burks v. Borg, 27 24 F.3d 1424, 1432 (9th Cir. 1994). 25 On habeas review, Petitioner bears the burden of establishing that consideration of the 26 extrinsic information had a substantial and injurious effect or influence on the jury s verdict. 27 See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Fields, 503 F.3d at 781 n.20. The 28 determination of prejudice resulting from the jury s consideration of extrinsic information - 32 - 1 is an objective standard, not a subjective one. See, e.g., Fields, 503 F.3d at 781 (stating that 2 a long line of authority makes clear that a court may not consider the subjective impact of 3 improperly considered evidence upon jurors during deliberations the question of prejudice 4 is objective). 5 Based on the trial record, the Arizona Supreme Court proceeded on the assumption that 6 the alternate s notes were in the jury room. Spears, 184 Ariz. at 289, 908 P.2d at 1074. 7 Based on the lack of any substantive information in Kovach s affidavit, they did not 8 determine what substantive information was in the notes; they only determined that the notes 9 did not contain extraneous information that was damaging or prejudicial to Petitioner. (Id.) 10 Petitioner has not met his burden of establishing that the jury s consideration of the 11 notes had a substantial and injurious effect or influence upon their verdict. See Fields, 503 12 F.3d at 781. The Jeffries factors are helpful to the Court in determining whether Petitioner 13 established prejudice. The Jeffries factors all weigh against a showing of actual prejudice. 14 First, there were no established prejudicial statements submitted to the jury in the notes; 15 second, any extraneous information in the notes was cumulative to other evidence adduced 16 at trial; third, there was no need for a curative instruction because the notes were not received 17 until after the court given its jury instructions and deliberations had commenced; and finally, 18 since no substantive extrinsic information was established, the notes themselves were not 19 prejudicial. Thus, even assuming that the alternate notes were in the jury room, there is no 20 reasonable likelihood that the notes affected the verdict because the notes did not contain any 21 prejudicial information. Cf. United States v. Olano, 507 U.S. 725, 737 (1993) (stating that 22 the presence of alternate jurors during jury deliberations is not the kind of error that affects 23 substantial rights apart from a showing of prejudice). The Court concludes that Petitioner 24 did not carry his burden under Brecht. The state supreme court s decision regarding the 25 alternate juror s notes was not contrary to or an unreasonable application of controlling 26 federal law. 27 Moreover, during habeas proceedings, Petitioner did not seek to factually develop the 28 record regarding Claim 8. (See Dkts. 102, 105.) In his motion for discovery, an evidentiary - 33 - 1 hearing and for an expansion of the state court record, Petitioner did not proffer any evidence 2 of prejudice regarding Claim 8; he only speculated that there may be prejudice. (See id.; see 3 also Dkt. 79 at 56-59.) Petitioner s speculation is insufficient to establish prejudice. 4 However, in this Court s review of the habeas record for Claim 16 which was 5 dismissed as a non-cognizable habeas claim (see Dkt. 120 at 12) Petitioner requested that 6 the record be expanded to include the 2003 Declaration of his wife, Janet Spears, the jury 7 foreperson who first alleged that an alternate juror s notes found their way into the jury room. 8 (Dkt. 79 at 103, Ex. CC.) In an attachment to her declaration, Mrs. Spears indicated that the 9 words perfect match were in the alternate juror s notes, referring to testimony by the 10 prosecution s ballistics expert that the shell casing found at the scene of the murder was fired 11 from Petitioner s 9mm handgun. (Dkt. 103, Ex. CC, Attach. H.) Mrs. Spears further alleged 12 that the testimony of the ballistics expert did not utilize the terms perfect match. (Id.) 13 First, even though this evidence was available at the time of post-conviction 14 proceedings, Petitioner neither raised Claim 8 nor presented this additional factual evidence 15 in support during post-conviction proceedings. (See ROA-PCR 157.) Therefore, Petitioner 16 did not diligently develop the factual basis of Claim 8 during state court proceedings. See 17 28 U.S.C. § 2254(e)(2); Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th Cir. 2005) (stating 18 that petitioner is not entitled to evidentiary development on habeas review when he failed to 19 first present the new evidence in state post-conviction proceedings; § 2254(e)(2) bars him 20 from introducing new evidence as an expansion of the record); see also Holland v. Jackson, 21 542 U.S. 649 (2004) (same). Second, as previously indicated, Petitioner also failed to seek 22 evidentiary development for Claim 8 in this Court and is now procedurally barred from 23 obtaining an evidentiary hearing or an expansion of the record for this evidence. (See Dkts. 24 102, 105; 28 U.S.C. § 2254(e)(2).) 25 Even if Petitioner had been diligent and entitled to consideration of this new evidence, 26 an evaluation of the substantive information does not have a substantial and injurious effect 27 or influence upon the verdict. The substantive import of the notes is limited to a comment 28 on the testimony of the prosecution s ballistics expert, who testified that the 9mm shell - 34 - 1 casing obtained from the scene was fired by Petitioner s 9mm handgun. (See RT 12/3/92 at 2 829-56.) The comment, perfect match is merely cumulative to the testimony presented at 3 trial, not new and prejudicial information. (Id.) Therefore, under the Jeffries factors, such 4 evidence does not establish prejudicial error under the Sixth Amendment. See Jeffries, 114 5 F.3d at 1491-92. Petitioner is not entitled to relief for Claim 8. 6 Claim 9 7 Petitioner alleges there was insufficient evidence to support either his first degree 8 murder conviction or his theft conviction. (Dkt. 79 at 59-63.) Although Respondents contest 9 exhaustion, Petitioner presented the Fourteenth Amendment aspect of this claim on direct 10 appeal. (See Appellant s Opening Brief at 65-67.) Petitioner cited United States v. Barron- 11 Rivera, 922 F.2d 549, 552 (9th Cir. 1991), which analyzed the federal due process standard 12 of Jackson v. Virginia, 443 U.S. 307 (1979), to resolve whether there was sufficient evidence 13 of each element of the crime beyond a reasonable doubt. Thus, the Fourteenth Amendment 14 due process aspect of Claim 9 was properly exhausted. 15 Petitioner did not fairly present the Sixth Amendment aspect of Claim 9 on direct 16 appeal. The Court concludes that this aspect of Claim 9 is technically exhausted but 17 procedurally defaulted because it does not allege facts or law which would exempt it from 18 preclusion and untimeliness pursuant to Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules 19 of Criminal Procedure were Petitioner to return to state court now. See Ariz. R. Crim. P. 20 32.2(b), 32.1(d)-(h); Coleman, 501 U.S. at 732, 735 n.1. Because Petitioner does not allege 21 cause and prejudice or miscarriage of justice, the Sixth Amendment aspect of Claim 9 is 22 procedurally barred. (See Dkt. 94 at 36.) 23 Discussion 24 Petitioner alleges there was insufficient evidence presented at trial to sustain his 25 conviction for first degree murder and theft. (Dkt. 79 at 59.) Petitioner contends that the 26 evidence is circumstantial and fails to establish guilt beyond a reasonable doubt. (Id. at 59- 27 60.) 28 The Court has already considered Claims 6 and 7, concluding there was sufficient - 35 - 1 evidence of premeditation for first degree murder and sufficient evidence of valuation for 2 theft. Consequently, the Arizona Supreme Court s upholding of these specific elements was 3 not contrary to or an unreasonable application of controlling federal law. The Court now 4 turns to consider the remaining elements supporting Petitioner s first degree murder and theft 5 convictions. 6 In Arizona, [a] person commits first degree murder if: intending or knowing that his 7 conduct will cause death, such person causes the death of another with premeditation. 8 A.R.S. § 13-1105(A)(1) (West 1992). A person commits theft if, without lawful authority, 9 such person knowingly: controls property of another with the intent to deprive him of such 10 property. A.R.S. § 13-1802(A)(1) (West 1992). The state court concluded there was 11 sufficient evidence of these crimes based on the following: Petitioner brought his 9mm 12 weapon with him on a one-way plane ticket from San Diego to Phoenix, paid for by the 13 victim. While he was with the victim in Phoenix, she secured large cash advances from her 14 credit cards. Petitioner was with the victim when she had the title to her truck notarized, 15 which allowed it to be transferred to another person. The medical examiner testified that the 16 victim died as a result of a gunshot wound to the back of her head and that she could have 17 been killed on January 3rd or 4th, 1992, while Petitioner was with her in Arizona. The 18 prosecution s ballistics expert testified that a spent shell casing found near the victim s body 19 was fired from Petitioner s 9mm weapon. Petitioner drove the victim s truck back to San 20 Diego, signed the title to himself, and was in possession of the truck when arrested in San 21 Diego. See Spears, 184 Ariz. at 290-291, 908 P.2d at 1075-76. 22 Based on this evidence, a rational trier of fact could have found the essential elements 23 of first degree murder and theft beyond a reasonable doubt. See Jackson, 443 U.S. at 319. 24 The evidence is circumstantial but certainly sufficient. See United States v. Shea, 493 F.3d 25 1110, 1114 (9th Cir. 2007) (stating that circumstantial evidence and inferences drawn from 26 the evidence are sufficient to sustain a conviction). 27 Petitioner cites Bean v. Calderon, 163 F.3d 1073, 1086-87 (9th Cir. 1998), to argue that 28 this Court should not presume the accuracy of state court fact finding when those facts are - 36 - 1 not fairly supported by the record. (Dkt. 79 at 61.) Petitioner argues further that the State 2 cannot rely on factual inferences based on mere suspicion or speculation. (Id.) 3 Bean, a pre-AEDPA case, is not helpful to Petitioner. The Bean court ruled that the 4 state court record fairly supported the inferences of guilt against petitioner. Id. Similarly, 5 in this case, the factual basis in the trial record as found by the supreme court supports the 6 inferences of guilt against Petitioner for theft and first degree murder. See Spears, 184 Ariz. 7 at 290-291, 908 P.2d at 1075-76; see also 28 U.S.C. § 2254(e)(1) (factual determinations by 8 a state court shall be presumed to be correct and petitioners have the burden of rebutting the 9 presumption of correctness by clear and convincing evidence). 10 Based on the foregoing, the Arizona Supreme Court s conclusion that there was 11 sufficient evidence of first degree murder and theft was not contrary to or an unreasonable 12 application of clearly established federal law. Petitioner is not entitled to relief on Claim 9. 13 Claim 10 14 Petitioner alleges that Arizona s statutory death penalty scheme is unconstitutional 15 because it allowed a judge, not a jury, to find the aggravating circumstances that rendered 16 him death-eligible, and because it failed to require the state to provide notice of aggravating 17 circumstances in his indictment. (Dkt. 79 at 63-64.) Respondents contend that only part of 18 this claim is exhausted. Regardless of exhaustion, the Court will deny the entirety of this 19 claim because it is plainly meritless. See 28 U.S.C. § 2254(b)(2); Rhines, 544 U.S. at 277. 20 Claim 10 is premised primarily upon Ring v. Arizona, 536 U.S. 584, 609 (2002), which 21 found that Arizona s aggravating factors are an element of the offense of capital murder and 22 therefore must be found by a jury. However, subsequently, in Schriro v. Summerlin, 542 23 U.S. 348 (2004), the Court held that Ring does not apply retroactively to cases already final 24 on direct review. Because direct review of Petitioner s case was final prior to Ring, he is not 25 entitled to federal habeas relief premised on that ruling. 26 With regard to his indictment claim, the Supreme Court has held that facts constituting 27 the elements of an offense rather than just a sentencing enhancement must be charged in a 28 federal indictment. See Jones v. United States, 526 U.S. 227, 252 (1999). However, the - 37 - 1 Fifth Amendment Due Process Clause does not incorporate the same requirements upon state 2 criminal prosecutions by virtue of the Fourteenth Amendment. See Hurtado v. California, 3 110 U.S. 516, 538 (1884); Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972). Therefore, 4 states are not required by the Constitution to empanel grand juries for purposes of indictment. 5 Id. Based on these same principles, Petitioner s argument was rejected by the Arizona 6 Supreme Court, which held that the federal constitution does not require that aggravating 7 factors be alleged in an indictment and supported by probable cause. See McKaney v. 8 Foreman, 209 Ariz. 268, 270, 100 P.3d 18, 20 (2004). This Court agrees. Claim 10 is 9 without merit. 10 Claims 12 and 14 11 In Claim 12, Petitioner alleges that the trial court failed to properly consider and give 12 mitigating weight to the evidence he presented at sentencing and improperly concluded that 13 the lone aggravating circumstance outweighed all of the mitigating evidence presented. (Dkt. 14 79 at 73-75.) In Claim 14, he alleges that the Arizona Supreme Court, in its independent 15 review of his death sentence, failed to properly consider and weigh the mitigating evidence 16 when they concluded that the aggravating circumstance outweighed the mitigating evidence 17 presented. (Dkt. 79 at 79-82.) According to Petitioner, the supreme court erred by failing 18 to consider and by giving no weight to certain mitigation unless there was an established 19 causal connection between the evidence and the crime. (Id.) Respondents concede 20 exhaustion. (Dkt. 89 at 34.) 21 In capital sentencing proceedings, the sentencer, whether by statute or case law or any 22 other legal barrier, must not be prevented from considering relevant mitigation evidence. See 23 Lockett v. Ohio, 438 U.S. 586 (1978). In Lockett, and subsequently in Eddings v. Oklahoma, 24 455 U.S. 104 (1982), the Supreme 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 constitutionally relevant mitigating evidence. Eddings, 455 U.S. at 113-14. Constitutionally 27 relevant mitigating evidence consists of any aspect of a defendant s character or record and 28 any of the circumstances of the offense that the defendant proffers as a basis for a sentence - 38 - 1 less than death. Lockett, 438 U.S. at 604. However, while the sentencer must not be 2 foreclosed from considering relevant mitigation information, the Constitution does not 3 require that a capital sentencer be instructed in how to weigh any particular fact in the capital 4 sentencing decision. See Tuilaepa v. California, 512 U.S. 967, 979-80 (1994). Nor does the 5 Constitution require that a specific weight be given to any particular mitigating factor. See 6 Harris v. Alabama, 513 U.S. 504, 512 (1995); Eddings, 455 at 114-15 ( The sentencer . . . 7 may determine the weight to be given relevant mitigating evidence ); Ortiz v. Stewart, 149 8 F.3d 923, 943 (9th Cir. 1998) (stating that the state is free to assess how much weight to 9 assign mitigating evidence). Rather, the sentencer has broad discretion to determine whether 10 death is appropriate once a defendant is found eligible for the death penalty. Tuilaepa, 512 11 U.S. at 979-80. 12 circumstances relevant to the particular defendant and the crime he committed is not 13 unconstitutional. Id. (quoting McCleskey v. Kemp, 481 U.S. 279, 315 n.37 (1987)). In sum, giving a sentencer discretion to evaluate and weigh the 14 During habeas proceedings, this Court reviews the state court record to ensure that the 15 state court allowed and considered all relevant mitigation. See Jeffers v. Lewis, 38 F.3d 411, 16 418 (9th Cir. 1994) (en banc). The trial court need not exhaustively analyze each mitigating 17 factor as long as a reviewing federal court can discern from the record that the state court 18 did indeed consider all mitigating evidence offered by the defendant. Moormann, 426 F.3d 19 at 1055 (quoting Clark v. Ricketts, 958 F.2d 851, 858 (9th Cir. 1991)); see Parker v. Dugger, 20 498 U.S. 308, 314-15, 318 (1991) (concluding that the sentencing court properly considered 21 all information, including nonstatutory mitigation, where the court stated that it considered 22 all the evidence and found no mitigating circumstances that outweighed the aggravating 23 circumstances); LaGrand v. Stewart, 133 F.3d 1253, 1263 (9th Cir. 1998); Gerlaugh v. 24 Stewart, 129 F.3d 1027, 1044 (9th Cir. 1997). 25 At sentencing, the trial court found the existence of one aggravating factor pecuniary 26 gain under A.R.S. § 13-703(F)(5) (West 1992). (ROA 96 at 1-2.) The court further 27 considered each of Petitioner s proffered mitigating factors. (Id. at 3-6.) The sentencing 28 court found that Petitioner established lack of criminal history as a mitigating circumstance. - 39 - 1 (Id. at 6-7.) Additionally, she gave mitigating value to the fact that Petitioner s mother 2 loved her son, Petitioner s good demeanor in court and while incarcerated, his military 3 service, and his psychological profile. (Id.) In determining that Petitioner s mitigating 4 factors were not sufficiently substantial to call for leniency, the trial judge stated that she had 5 consider[ed] the defendant s character, his propensities, and lack of a criminal record and 6 everything that is mitigating and potentially mitigating. (Id. at 7.) 7 On direct appeal, the Arizona Supreme Court carefully reviewed each of the trial 8 judge s aggravation/mitigation findings. Spears, 184 Ariz. at 293-95, 908 P.2d at1078-80. 9 Stemming from childhood abuse, the court acknowledged expert testimony that Petitioner 10 suffers from Post-Traumatic Stress Disorder (PTSD), that may be retriggered at any time, 11 causing impulsive and irrational behavior. (Id. at 294, 908 P.2d at 1079.) However, because 12 the murder in this case was planned and carried out in a deliberate manner, Petitioner s 13 difficult family background and resulting PTSD diagnosis failed to explain why Petitioner 14 committed murder. (Id.) The supreme court concluded that the trial judge appropriately gave 15 Petitioner s background minimal mitigating weight. (Id.) 16 The supreme court then conducted its own independent review of all the 17 aggravation/mitigation evidence to determine if death was the appropriate penalty. The 18 supreme court stated that it agreed 19 24 with the trial court s findings that defendant committed this murder in expectation of pecuniary gain and that defendant s lack of a significant prior criminal record was a mitigating factor. In addition, we believe that the trial court appropriately gave some mitigating weight, however minimal, to defendant s difficult family background and his good conduct. However, we find that defendant s military history is a mitigating factor whereas the trial court stated that it was of only some mitigating value. Nonetheless, we believe that this minor distinction does not require us to remand this case for resentencing because there is no new evidence to be received, no mitigating evidence was improperly excluded, and the mitigating evidence is not significant. See King, 180 Ariz. at 288, 883 P.2d at 1044. 25 Id. at 295-96, 908 P.2d at1080-81 (emphasis added). Regarding Petitioner s difficult family 26 background, the court indicated that this evidence was not entitled to significant mitigating 27 weight. Id. (emphasis added). 20 21 22 23 28 Citing Tennard v. Dretke, 542 U.S. 274 (2004), Petitioner argues that the trial and - 40 - 1 appellate courts violated Lockett and Eddings by giving his troubled childhood and 2 psychological history less mitigating weight because he failed to establish a causal 3 connection between this evidence and the murder. (Dkt. 94 at 45.) Under Tennard, 4 Petitioner contends that the state court cannot reduce the mitigating weight of this evidence 5 because the evidence did not have a causal connection to the crime. (Id.) 6 In Tennard, the Supreme Court rejected the notion that mitigation evidence must pass 7 through a threshold screening test before it may be considered as mitigation at sentencing. 8 Tennard, 542 U.S. at 283-84. The Court specifically held it is improper to screen out 9 mitigating evidence on the basis that it did not have a causal connection with the crime. Id. 10 at 287. Following Lockett and Eddings, the Tennard Court focused on the requirement that 11 courts must consider relevant mitigation evidence at sentencing. Id. at 286-87. Thus, even 12 if mental health mitigation presented at sentencing does not have a causal connection to the 13 crime, it still must be considered as mitigation. Id. However, the Tennard Court did not 14 prescribe a certain weight that states must give to mitigating evidence. See Harris v. 15 Alabama, 513 U.S. 504, 512 (1995) (stating that the Constitution does not require that a 16 specific weight be given to any particular mitigating factor). Thus, under Tennard, the 17 sentencer is not prohibited from determining the weight it will assign to mitigating evidence 18 so long as the sentencer considers and gives effect to the mitigating evidence. 19 It is evident from the record that the state courts did not improperly violate 20 Lockett/Eddings by foreclosing the consideration of Petitioner s difficult childhood and 21 mental health mitigation. See Spears, 184 Ariz. at 294, 296, 908 P.2d at 1079, 1081. Both 22 the trial judge and the Arizona Supreme Court carefully considered and gave effect to 23 Petitioner s difficult family background and his mental health mitigation. Id. Both courts 24 specifically stated that they were given weight. Id. The federal constitution requires nothing 25 more; their decision to give this mitigation minimal mitigating weight is not unconstitutional. 26 See Harris, 513 U.S. at 512; Ortiz, 149 F.3d at 943. Therefore, the Arizona Supreme Court s 27 decision was not based on an unreasonable determination of the facts or application of 28 controlling federal law. Petitioner is not entitled to relief on either Claim 12 or Claim 14. - 41 - 1 Claim 13 2 Petitioner argues that the trial court impermissibly considered statements from the 3 victim s family that were attached to the probation department s presentence report and that 4 advocated for the death penalty. (Dkt. 79 at 75-79; see ROA-PCR 97.) Prior to sentencing, 5 the trial judge acknowledged reviewing the presentence report, but stated that irrelevant 6 information would be excluded from her consideration at sentencing. (ME 27.) 7 On direct appeal, Petitioner argued that consideration of the victim s family s 8 sentencing recommendations violated his constitutional rights. The Arizona Supreme Court 9 disagreed: 10 11 12 13 14 15 16 17 The victim s parents attached a letter to the presentence report requesting that defendant receive the maximum sentence allowable by the State of Arizona. Defendant argues that these statements violated the United States Constitution and the Arizona Constitution. While we acknowledge that family testimony regarding the appropriate sentence may violate the United States Constitution if presented to a capital sentencing jury, we also note that victim impact testimony is not relevant to any of our statutory aggravating factors. State v. Bolton, 182 Ariz. 290, 315-16, 896 P.2d 830, 855-56 (1995). When victim impact evidence is offered, we have generally assumed that the sentencing judge is capable of focusing on the relevant factors and setting aside the irrelevant, inflammatory, and emotional factors, absent evidence to the contrary. Bolton, 182 Ariz. at 316, 896 P.2d at 856. Because defendant offers no evidence from the record to rebut this assumption, we find no reversible error here. Spears, 184 Ariz. at 292, 908 P.2d at 1077. 18 In Booth v. Maryland, 482 U.S. 496, 509 (1987), the Supreme Court held that the 19 introduction of a victim impact statement to a capital sentencing jury violated the Eighth 20 Amendment. In Payne v. Tennessee, 501 U.S. 808, 827, 830 (1991), the Supreme Court 21 revisited Booth and overruled it in part, holding that the Eighth Amendment does not erect 22 a per se barrier to the admission of victim impact evidence before a capital sentencing jury 23 but leaving intact Booth s prohibition on the admissibility of characterizations and opinions 24 from the victim s family about the crime, the defendant, or the appropriate sentence to be 25 imposed. Id. at 830 n.2. 26 Under Arizona law at the time of Petitioner s trial, the trial judge, rather than a capital 27 sentencing jury, determined the penalty in a capital case. A.R.S. § 13-703 (West 1992). 28 Judges are presumed to know and apply the law in a constitutional manner. See Jeffers, 38 - 42 - 1 F.3d at 415; State v. Gulbrandson, 184 Ariz. 46, 66, 906 P.2d 579, 599 (1995). Therefore, 2 in the absence of any evidence to the contrary, the Court must assume that the trial judge 3 properly applied the law and considered only admissible evidence at sentencing. See 4 Gretzler v. Stewart, 112 F.3d 992, 1009 (9th Cir. 1997). 5 There is no evidence that the trial court disobeyed or misapplied the law and improperly 6 considered the opinions of the victim s family when determining the sentence to impose. 7 Indeed, the judge expressly stated that she would exclude from her consideration at 8 sentencing any irrelevant information contained in the presentence report. (ME 27.) The 9 decision of the Arizona Supreme Court finding no constitutional violation is neither contrary 10 to nor an unreasonable application of clearly established federal law. Petitioner is not 11 entitled to relief on Claim 13. 12 Claim 15 13 At trial and sentencing, Petitioner was represented by Roland Steinle and Timothy 14 Ryan, Assistant Maricopa County Public Defenders. Petitioner contends they performed 15 ineffectively by failing to: (A) conduct an adequate pre-trial investigation; (B) conduct an 16 adequate investigation regarding prosecution witness Michael Smith;10 (C) adequately 17 investigate and present mitigation at sentencing; and (D) effectively challenge the pecuniary 18 gain aggravating circumstance at sentencing. (Dkt. 79 at 82-96.) The Court has already 19 concluded that these claims were properly exhausted. (Dkt. 120.) 20 Claim 15-A 21 Petitioner alleges that trial counsel failed to obtain a latent fingerprint expert to examine 22 the 9mm shell casing found at the murder scene. (Dkt. 79 at 84-85.) He argues that the 23 absence of his fingerprints on the shell casing would have cast doubt on his guilt. (Id.) 24 Petitioner further alleges that trial counsel should have obtained an expert to examine the 25 blood evidence taken from the murder scene and to examine a vest he allegedly wore on the 26 27 28 10 The merits of Claim 15-B are addressed in the Court s earlier discussion of Claim 5. See supra. - 43 - 1 day of the crime. (Id.) 2 Prior to trial, a prosecution expert examined the 9mm shell casing found at the murder 3 scene. He determined and testified that it was shot from the 9mm gun seized from 4 Petitioner s apartment; however, he was not asked to do any fingerprint analysis on the 5 casing. (RT 12/3/92 at 833-34, 845-50.) 6 Dirt underneath the victim s body as well as a reddish pool of dirt down slope from the 7 body tested positive for blood; however, it was not tested to verify that the blood was from 8 the victim. (RT 11/30/92 at 548-557; 12/1/92 at 636-42.) Following his arrest, police seized 9 clothing from Petitioner s apartment, including a nylon vest, that his girlfriend in San Diego 10 claimed Petitioner had taken with him on his trip to Arizona. (RT 12/7/92 at 29-37.) A 11 prosecution expert examined spots on the vest, but none tested positive for blood. (Id. at 37- 12 43.) 13 During PCR proceedings, Petitioner proffered an affidavit from a forensic expert, 14 William Joe Collier, in support of this claim. (ROA-PCR Doc. 157, Ex A.) However, 15 Collier did not opine regarding any testing for latent fingerprints on the shell casing; he only 16 indicated that the prosecution did not process the shell casing for fingerprints. (Id.) 17 Regarding the blood pool near the victim s body, Collier indicated that the prosecution 18 should have taken photographs and made a comparison with the victim s blood. (Id.) With 19 respect to Petitioner s vest, Collier indicated that the prosecution tested the item for blood 20 and found no residue. (Id.) The PCR court rejected Petitioner s IAC allegations due to lack 21 of Strickland prejudice. (ROA-PCR 161.) 22 Petitioner acknowledged in his habeas petition that Strickland prejudice allegations 23 were lacking and indicated that he would provide support for prejudice in his motion for 24 evidentiary development. (Dkt. 94 at 49.) However, Petitioner failed to provide any 25 evidentiary support for this claim either in his motion for discovery/evidentiary hearing or 26 in his motion for expansion of the record. (See Dkt. 102 at 9, 66-74; Dkt. 105 at 20-21, 23- 27 27.) 28 Petitioner has failed to establish that an expert would testify that his fingerprints were - 44 - 1 not on the shell casing. Even if counsel was deficient in not determining if the shell casing 2 lacked Petitioner s fingerprints, Petitioner cannot establish that he suffered any prejudice 3 from counsel s lack of investigation. Petitioner also failed to establish that an expert would 4 testify that it was not the victim s blood at the murder scene. Even if counsel should have 5 completed additional investigation and testing of the blood evidence from the scene, 6 Petitioner has shown no prejudice from counsel s performance. Finally, Petitioner has failed 7 to establish what additional investigation counsel should have conducted regarding his vest; 8 the prosecution expert testified that it tested negative for blood. (RT 12/7/92 at 29-37.) 9 Thus, Petitioner suffered no prejudice. 10 Conclusory allegations that are not supported by a statement of facts are insufficient to 11 demonstrate Strickland prejudice. See James, 24 F.3d at 26; see also Gonzalez v. Knowles, 12 515 F.3d 1006, 1015-16 (9th Cir. 2008) (speculative allegations do not establish Strickland 13 prejudice); Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (no prejudice from 14 counsel s failure to retain an expert where no offer of proof detailing facts to which such 15 expert would have testified at trial); Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) 16 (same). Absent a showing of prejudice, Petitioner is not entitled to relief. The PCR court s 17 decision denying these IAC allegations was neither contrary to nor an unreasonable 18 application of Strickland. Petitioner is not entitled to relief on Claim 15-A. 19 Claim 15-C 20 Petitioner alleges that counsel performed deficiently at sentencing because they failed 21 to adequately investigate his social, medical, and mental health history and failed to provide 22 adequate information to his psychological expert so that his expert could properly present his 23 mitigation. (Dkt. 79 at 87-95; Dkt. 94 at 49-63.) Petitioner alleges that the absence of this 24 evidence negatively affected the expert s testimony at the presentence hearing. (Id.) 25 Background 26 Prior to sentencing, counsel prepared a detailed twenty-five page mitigation 27 memorandum. (ROA 53.) This memorandum urged the judge to consider and weigh the 28 following nonstatutory mitigation: Petitioner s lack of a prior felony criminal record, good - 45 - 1 conduct while incarcerated and during trial, age, difficult childhood, employment history, 2 remorse, lack of future dangerousness, cooperation with law enforcement, history as a good 3 family man, military service in the Navy, concern for his mother and the fact that his family 4 loves him, adoption of new goals, and any residual doubt about whether Petitioner committed 5 the murder. (Id.) 6 At the presentence aggravation/mitigation hearing, counsel called psychologist Mickey 7 McMahon and several lay witnesses. Dr. McMahon testified regarding two main areas: 8 Petitioner s difficult childhood and the results of mental health testing showing a lack of 9 future dangerousness. Concerning Petitioner s upbringing, Dr. McMahon described the 10 physical beatings Petitioner suffered at the hands of his alcoholic father, including being shut 11 in a closet for hours following one of the beatings. (RT 3/5/93 at 9-12.) Petitioner was 12 terrified of his father and was referred for psychological treatment. (Id. at 12-15.) 13 Dr. McMahon testified to a statistical correlation between experiencing childhood abuse 14 and subsequently becoming an abuser. (Id. at 15-16.) He diagnosed Petitioner as suffering 15 from Childhood PTSD. (Id.) According to Dr. McMahon, Petitioner s PTSD may be re- 16 triggered by trauma, at which time Petitioner would be inclined to act impulsively and 17 reflexively. (Id. at 16.) Dr. McMahon also diagnosed Petitioner with depression, which was 18 being treated with medication. (Id.) Based on his interview with Petitioner and information 19 obtained from Petitioner s mother, Dr. McMahon did not believe that Petitioner had 20 neurological problems. (Id. at 19.) Dr. McMahon testified that, although Petitioner engaged 21 in attention-seeking behavior and was insecure, he was not chronically violent and likely 22 would not be violent in prison. (Id. at 20-22.) 23 Petitioner s mother testified about his upbringing. She stated that Petitioner suffered 24 severe physical abuse at the hands of his father, who whipped him and sometimes punched 25 him with his fist, leaving bruises and welts. (Id. at 41-42, 51.) Petitioner s mother 26 sometimes intervened; when she did, her husband would also physically abuse her by 27 slapping, pushing, and punching her. (Id. at 42-44.) In one incident, after beating Petitioner 28 with a belt and scuffling with his wife, Petitioner s father put Petitioner in a closet, closed - 46 - 1 the door, and kept him there for hours. (Id. at 43-44.) His father was also strict about their 2 clothes and hairstyle; Petitioner and his brothers always wore crew cuts even though this 3 made them stand out among their peers. (Id. at 45.) While Petitioner was in elementary 4 school, the school requested that Petitioner and his parents visit a psychiatrist or psychologist 5 because Petitioner was terrified of his father. (Id. at 45-46.) These meetings stopped because 6 Petitioner s father would not participate. (Id. at 46.) Petitioner left high school to join the 7 Navy. (Id.) While he was in the Navy, his mother filed for divorce. (Id. at 47-48.) 8 Petitioner s San Diego girlfriend, JoAnn Rebecca Forrester, also testified. (Id. at 37.) 9 She stated that when she met Petitioner, he was employed by her ex-husband and had a 10 reputation for being dependable and hard working. (Id. at 37-38.) The business ultimately 11 folded, and she did not see Petitioner for over a year; when they reconnected, he moved in 12 with her. (Id.) According to Forrester, Petitioner was employed when they began living 13 together. (Id.) However, when Petitioner lost this job, he began looking for work in San 14 Diego and in Arizona. (Id. at 38-39.) 15 The court also heard testimony from a former employer, David Samuels. (Id. at 33.) 16 Samuels indicated that he considered Petitioner a friend, that he liked him and socialized with 17 him on the weekends, usually by riding motorcycles out in the desert. (Id. at 33-34.) 18 Although happy with Petitioner s performance, Samuels had to lay-off Petitioner due to lack 19 of work. (Id. at 34-35.) After the lay-off, Samuels testified that Petitioner continued to look 20 for work but did not find steady employment. (Id. at 36.) 21 Petitioner also provided an unsworn statement at the hearing. (Id. at 51.) He described 22 the childhood abuse he suffered from his father and how he enlisted in the Navy to get away 23 from him. (Id. at 53-55.) Petitioner served in the Navy for eight years and received an 24 honorable discharge, as well as commendations for his service. (Id. at 55-59.) While in the 25 Navy, Petitioner s parents went through divorce proceedings. (Id. at 59-60.) During those 26 proceedings, Petitioner intentionally overstayed leave so that he could protect his mother, 27 who was being threatened by his father. (Id.) Due to being absent without leave, he lost a 28 rank. (Id.) - 47 - 1 Prior to sentencing, the trial judge also reviewed relevant aspects of the probation 2 department s presentence report. (ME 27, 3/3/93 at 1.) The presentence report stated that 3 Petitioner adamantly denied killing the victim and claimed he had no motive because the 4 victim was his friend. (ROA 97 at 2.) Petitioner maintained, I have been wrongfully 5 accused and convicted of a crime I did not commit. I am bitterly disappointed and depressed 6 with this whole situation. (Id. at 1.) One of Petitioner s attorneys confirmed to the 7 presentence report writer that his client was still denying involvement. (Id. at 3.) 8 As previously discussed with respect to Claims 12 and 14, the sentencing judge 9 concluded that Petitioner established as a mitigating factor lack of prior criminal history 10 and in weighing the mitigation evidence against the aggravation also gave mitigating value 11 to the fact that Petitioner was loved by his mother, that he exhibited good demeanor in court 12 and while incarcerated, that he had served in the military, and that he suffered from PTSD 13 as a result of childhood abuse. (ROA-PCR 96 at 6-7.) Petitioner did not assert, and the 14 sentencing judge did not find, that Petitioner s ability to control his conduct or to know the 15 difference between right and wrong was significantly impaired. (Id. at 2-3, 7; see A.R.S. § 16 13-703(G)(1) (West 1993)). 17 On direct appeal, the Arizona Supreme Court agreed with the sentencing judge s 18 mitigation findings, except that it determined that Petitioner s military history was a 19 mitigating factor, whereas the sentencing court only gave it some mitigating value. Spears, 20 184 Ariz. at 295-96, 908 P.2d at 1080-81. In recounting Dr. McMahon s testimony that 21 Petitioner s PTSD could be retriggered and cause impulsive and irrational behavior the 22 court separately noted that Petitioner s actions were planned and deliberate, not impulsive. 23 Id. at 294, 908 P.2d at1079. 24 In his PCR petition, Petitioner alleged that counsel s investigation into his mental health 25 was inadequate because counsel failed to ask Dr. McMahon to explain how his mental 26 impairment played a role in his behavior at the time of the crime. (ROA-PCR 157 at 18-19.) 27 Petitioner further argued that Dr. McMahon should have required Petitioner to undergo 28 neurological testing in search of potential mitigation. (Id. at 19-20.) Even though Petitioner - 48 - 1 alleged that counsel was ineffective at sentencing, he failed to provide any evidentiary 2 support in his PCR petition, despite the fact that he supported other deficient performance 3 claims with evidentiary support. (See ROA-PCR 157, Ex. A, B.) 4 In denying relief, the PCR court stated: 5 Defendant claims counsel was ineffective by doing virtually nothing to investigate defendant s mental impairment. There is nothing in the petition that indicates defendant has or had any mental impairment. It is incongruous for the defendant to claim counsel was ineffective because of a lack of investigation into the defendant s state of mind at the time the crime was committed when it was the defendant s position he did not commit the crime. Assuming such evidence should have been submitted, defendant offers nothing now to demonstrate how post-traumatic stress disorder or any other mental impairment played a role in his behavior. 6 7 8 9 10 11 12 Defendant claims counsel s failure to present mitigating evidence entitles him to post-conviction relief. The defendant fails to indicate what mitigating evidence should have been submitted. What evidence is there in mitigation that was not presented? Who should have been called as a witness and what would they have said? Obviously, this claim does not rise to the level of being colorable. 13 (ROA-PCR 161 at 9.) 14 Discussion 15 In these proceedings, Petitioner alleged IAC because counsel failed to investigate and 16 discover that, in addition to PTSD, he suffered from a Factitious Disorder, a Depressive 17 Disorder, and Attention Deficit Hyperactivity Disorder (ADHD) prior to and at the time of 18 the offense. (Dkt. 102 at 66.) Had counsel properly investigated, mental health professionals 19 could have reported that his behavior was affected by these disorders at the time of the crime. 20 (Id. at 67.) Petitioner further alleged that counsel should have investigated his history of 21 head injuries and that doing so would have led to evidence of frontal lobe dysfunction 22 which would manifest behaviorally by disregulation of emotions and behavior, impulsivity 23 and poor judgment. (Id. at 67, 73-74.) In addition, even though counsel interviewed some 24 individuals who knew him, they failed to interview others who could have provided 25 information related to violence and abuse in the Spears family, as well as Petitioner s history 26 of fabricating stories about himself. (Id. at 69, 72-73.) In order to provide evidentiary 27 support for these allegations, Petitioner requested that this Court allow him to introduce new 28 evidence that he did not present to the state courts. (Id.) - 49 - 1 In March 2005, the Court denied Petitioner s request for discovery, an evidentiary 2 hearing, and to expand the record with new evidence in support of his sentencing IAC 3 allegations. (Dkt. 120 at 23-26.) Applying 28 U.S.C. § 2254(e)(2) of the AEDPA, this Court 4 denied expansion of the record or the granting a federal evidentiary hearing unless Petitioner 5 established that he had diligently attempted to develop the factual record in state court. (Id.) 6 The Supreme Court has construed the AEDPA to require that when available 7 information would alert a reasonable attorney to the existence and importance of evidence, 8 an attorney fails to develop the factual record if he does not make a reasonable effort to 9 investigate and present that evidence to the state court. See Williams, 529 U.S. at 438-40 10 (counsel not diligent where put on notice of potential material evidence but conducted only 11 a cursory investigation). If counsel fails to fully develop a claim in state post-conviction 12 proceedings, such failure is imputed to the petitioner. Id. Because Petitioner failed in state 13 court to act with diligence to develop these IAC sentencing allegations and did not attempt 14 to meet the narrow exceptions of 28 U.S.C. § 2254(e)(2), this Court concluded that it was 15 statutorily foreclosed from holding an evidentiary hearing or expanding the record to include 16 new facts in support of Claim 15-C.11 (Dkt. 120 at 25-26; see Holland v. Jackson, 542 U.S. 17 649, 652-53 (2004) (holding that introduction of new evidence into a habeas proceeding is 18 permitted only if petitioner was not at fault in failing to develop the evidence in state court); 19 Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241-42 (9th Cir. 2005) (denying expansion of 20 the record because petitioner failed to present the new evidence in state post-conviction 21 proceedings, therefore petitioner was barred from introducing it in habeas proceedings); 22 Wildman v. Johnson, 261 F.3d 832, 839-40 (9th Cir. 2001) (denying expansion of new 23 evidence into habeas proceeding because petitioner failed to develop evidence of Strickland 24 25 26 27 28 11 Petitioner conceded that he had failed in state court to fully develop the factual bases of Claim 15-C, but asserted that the failure should not be attributed to him because the State appointed incompetent PCR counsel to represent him. (Dkt. 102 at 67.) The Court disagreed, concluding that deficiencies by PCR counsel were imputed to Petitioner. (Dkt. 120 at 25.) - 50 - 1 prejudice during state post-conviction proceedings)). 2 Ordinarily, a [federal habeas] petition is limited to the factual record developed in state 3 court proceedings. Cardwell v. J.D. Netherland, 971 F. Supp. 997, 1008 (E.D.Va. 1997), 4 aff d, Cardwell v. Greene, 152 F.3d 331 (4th Cir. 1998), overruled, in part, on other grounds, 5 Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000) (en banc). This is true because if the state courts 6 are the primary forum for direct and collateral review of state court convictions and 7 sentences, it would be inappropriate to allow a federal court to review state decisions on the 8 basis of a factual record that was not considered by the state court. Id.; see also Williams, 9 529 U.S. at 437 ( Federal courts sitting in habeas are not an alternative forum for trying facts 10 and issues which a prisoner made insufficient effort to pursue in state proceedings. ). 11 Strickland posits that habeas courts may proceed directly to the prejudice component 12 of an ineffectiveness claim if it is easier to dispose of an ineffectiveness claim on the ground 13 of lack of sufficient prejudice. Strickland, 466 U.S. at 697. During state PCR proceedings, 14 Petitioner was required to support his allegations of deficient performance with specific 15 factual evidence establishing that counsel s performance at sentencing was prejudicial. Id. 16 at 693. Other than allegations of deficient performance, Petitioner did not attempt to and did 17 not present such evidence. (ROA-PCR 157 at 19-20.) The PCR court concluded that 18 Petitioner failed to affirmatively establish Strickland prejudice. (See ROA-PCR 161 at 9.) 19 This Court agrees. Based on the existing state court record, Petitioner s mere allegations 20 that counsel failed to investigate and present available mitigation at sentencing is insufficient 21 to establish Strickland prejudice. See James, 24 F.3d at 26 (speculative and conclusory 22 allegations that are not supported by specific facts do not establish Strickland prejudice). 23 The Court concludes that the PCR court s ruling denying relief on Claim 15-C was not based 24 on an unreasonable determination of the facts or application of Strickland. 25 26 Alternatively, even considering the new evidence that Petitioner now presents, the Court further concludes that he is not entitled to habeas relief. 27 New Evidence 28 In support of his habeas claims, Petitioner has proffered an extensive report from a - 51 - 1 psychiatrist, Dr. Arturo Silva. Dr. Silva concludes that Petitioner was suffering from PTSD, 2 a Factitious Disorder, a Depressive Disorder, and ADHD at the time of the offense. (Dkt. 3 103, Ex. Y at 6.) Dr. Silva indicates that Petitioner s depressive disorder arose from 4 childhood abuse and the end of his second marriage, and that the factitious disorder began 5 when Petitioner learned as a child to tell stories in order not to be severely punished by his 6 father. (Id. at 15-16.) Friends and relatives all confirmed that Petitioner has a history of 7 telling grandiose lies about himself. (Id. at 17-23.) Dr. Silva further reports that Petitioner 8 displays a dramatic, longstanding pattern of deceiving others. (Id. at 38.) Dr. Silva s testing 9 did not reveal evidence of cognitive deficits, executive dysfunction, or any dissociative 10 disorder, and he determined that Petitioner has a full scale IQ of 104. (Id. at 28-30.) 11 With regard to Petitioner s state of mind at the time of the offense, Dr. Silva notes: 12 15 Because Mr. Spears continues to deny any participation in the chain of events that led to the death of the victim, I need to acknowledge from the outset that often, I can only discuss potential psychiatrically related scenarios during and around the time of the victim s death. If Mr. Spears had stated to this examiner and others that he was responsible for the victim s death and additionally, had provided detailed evidence for his responsibility in her death, then my evaluation of Mr. Spears would have increased validity relative to my present evaluation. 16 (Id. at 51.) Dr. Silva theorizes that if the victim had threatened Petitioner in any manner or 17 confronted him with his deceitfulness, his PTSD and depressive order may have caused him 18 to lose control and become violent. (Id. at 52-53.) He further speculates that, if the victim 19 had challenged Petitioner s inflated impression of himself by questioning his fantasies, 20 Petitioner s factitious disorder could have led to a heat-of-passion-type situation in which he 21 tried to prevent her from leaving him. (Id. at 53-54.) Finally, Dr. Silva hypothesizes that 22 Petitioner s ADHD disorder may have diminished his impulse control and increased his 23 hostility. (Id. at 54.) 13 14 24 Petitioner also proffers a quantitative electroencephalogram (qEEG) report prepared by 25 neuropsychologists M.B. Sterman and Ricardo Weinstein. (Dkt. 105 at 24; Dkt. 103, Ex. Y.) 26 This testing, apparently conducted as a complement to other neuropsychological testing, 27 revealed evidence of insult(s) to the brain resulting in frontal lobe dysfunction. This finding 28 would be behaviorially manifested by disregulation of emotions and behavior, impulsivity - 52 - 1 and poor judgement. (Dkt. 103, Ex. Y at 1, 9.) Petitioner has proffered no other evidence 2 from his neuropsychological experts. 3 Finally, Petitioner has submitted numerous declarations from various family members 4 and friends. His siblings, aunts, uncles, and cousins describe the abuse Petitioner suffered 5 at the hands of both his father and mother, though the latter to a much lesser extent. (Id., Ex. 6 A-D, F, G, I, L.) His father was quick to discipline Petitioner, his oldest child, with a belt, 7 switches, and even a car antenna that he pulled off during a family vacation. (Id., Ex. E-G.) 8 As a result, the children suffered physical and emotional abuse from their father. (Id.) 9 Petitioner was known in the family as a respectful and dutiful son who did what he was told 10 and was kind to those in his extended family. (Id., Ex. A-D, I, L.) According to Petitioner s 11 family members, his father was himself physically abused as a child and grew up in a home 12 filled with anger, violence, mental illness, heart disease, and widespread alcoholism. (Id., 13 Ex. A-E.) 14 In their declarations, Petitioner s two ex-wives and his daughter describe Petitioner s 15 positive traits: he was kind, compassionate, sensitive, and musically talented. (Id., Ex. K, 16 M, R.) Petitioner s first wife revealed that they divorced due to Petitioner s affairs with other 17 women. (Id., Ex. M.) Petitioner s second wife reported on Petitioner s escalating use of 18 drugs (cocaine, amphetamines, alcohol, and marijuana), increased anger, depression, and 19 inability to stay employed. (Id., Ex. R.) Friends of Petitioner state that his use of drugs 20 hardened him and some revealed that they no longer wanted to associate with him due to this 21 change. (Id., Ex. H, W.) A number of both relatives and friends commented on how 22 Petitioner was known to make himself out to be bigger and better than he was by 23 embellishing stories about himself. (Id., Ex. E, R, S, T, V.) 24 Performance 25 The performance inquiry for an IAC claim is whether counsel s assistance was 26 reasonable considering all of the circumstances. Strickland, 466 U.S. at 688-89. [A] court 27 must indulge a strong presumption that counsel s conduct falls within the wide range of 28 reasonable professional assistance; that is, the defendant must overcome the presumption - 53 - 1 that, under the circumstances, the challenged action might be considered sound trial 2 strategy. Id. at 689. 3 Petitioner contends that counsel conducted virtually no mitigation investigation, but 4 offers no support for this assertion from trial counsel, their investigator, or any other source 5 familiar with his trial attorneys preparation for sentencing. It is evident from the state court 6 record that counsel enlisted a psychological expert and interviewed a number of lay witnesses 7 familiar with Petitioner s social history. They prepared an extensive presentence mitigation 8 memorandum urging the trial judge to consider numerous mitigating factors and presented 9 four witnesses at the presentence hearing. They sought to portray Petitioner in a sympathetic 10 light by emphasizing the abuse he suffered at the hands of his alcoholic father and the 11 resulting post-traumatic stress disorder. They also focused on the positive aspects of his 12 character and background, including familial love and support, military service, and the lack 13 of any significant criminal history. 14 The crux of Petitioner s claim appears to stem from counsel s alleged failure to ask Dr. 15 McMahon to evaluate Petitioner s mental state at the time of the crime and to have Petitioner 16 examined for neurological damage, presumably to try and show that some mental disease or 17 defect substantially impaired Petitioner s capacity to appreciate the wrongfulness of his 18 conduct or to conform his conduct to the requirements of the law. A.R.S. § 13-703(G)(1) 19 (West 1993).12 Petitioner essentially argues that the failure to investigate his mental state of 20 the time of the offense was per se ineffective. (Dkt. 79 at 88-89; Dkt. 94 at 54.) The Court 21 disagrees. 22 23 12 24 25 26 27 28 Establishing that a capital defendant has significant impairment to his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law under A.R.S. § 703 (G)(1) has been found by the Arizona Supreme Court to be a substantial factor justifying a sentence of life imprisonment as opposed to death. See, e.g., State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997); State v. Stuard, 176 Ariz. 589, 863 P.2d 881 (1993); State v. Jimenez, 165 Ariz. 444, 799 P.2d 785 (1990); State v. Mauro, 159 Ariz. 186, 766 P.2d 59 (1988); State v. Graham, 135 Ariz. 209, 660 P.2d 460 (1983); State v. Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979); State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977). - 54 - 1 Petitioner has not proffered any evidence from his trial attorneys to shed light on why 2 they did not ask Dr. McMahon to opine about Petitioner s mental state at the time of the 3 offense; nor has he proffered his own declaration regarding his willingness to participate in 4 an assessment of his mental state at the time of the crime. However, it is evident from the 5 presentence report that even after conviction Petitioner continued to deny criminal 6 responsibility. (ROA 97 at 1-2; see also id. at 3 ( [Defense counsel] noted his client is still 7 denying involvement. ).) In addition, the report of Petitioner s newly-retained habeas expert 8 states that Petitioner continues to deny any participation in the chain of events that led to 9 the death of the victim. (Dkt. 103, Ex. Y at 51.) Thus, there is a reasonable basis to believe 10 that counsel, aware of their client s steadfast denial of guilt, recognized that Petitioner would 11 not be willing to discuss any aspect of the offense with a mental health expert. Any 12 unwillingness by Petitioner to discuss the crime would have prevented Dr. McMahon from 13 conducting a reliable evaluation and making a diagnosis about his mental state at the time of 14 the offense. See Wellons v. Hall, 554 F.3d 923, 930 n.2 (11th Cir. 2009) (observing that 15 expert was unable to render opinion on mental state where defendant refused to discuss the 16 facts and circumstances surrounding the offense); see also Affinito v. Hendricks, 366 F.3d 17 252, 260 (3d Cir. 2004) (noting critical importance of a defendant s statements regarding the 18 crime to an expert evaluating mental state). 19 Furthermore, Dr. McMahon expressly stated that he did not observe any signs of 20 neurological damage and did not recommend that Petitioner undergo a neurological 21 evaluation. (RT 3/5/93 at 19.) An attorney is not required to be so expert in psychiatry, 22 Pruett v. Thompson, 996 F.2d 1560, 1574 (4th Cir. 1993), and counsel s reliance on Dr. 23 McMahon, an experienced forensic psychologist, was objectively reasonable. See Turner 24 v. Calderon, 281 F.3d 851, 876 (9th Cir. 2002) (explaining that the choice of what type of 25 expert to use is one of trial strategy and entitled to deference and rejecting claim that 26 counsel s use of a general psychologist rather than a more specialized expert constituted 27 IAC); Wildman v. Johnson, 261 F.3d at 838 ( Trial counsel could reasonably rely on [the] 28 initial expert investigation and Wildman did not show that the expert retained revealed that - 55 - 1 further investigation would be productive. ); Campbell v. Coyle, 260 F.3d 531, 555 (6th Cir. 2 2001) (counsel reasonably relied on a trained psychologist who failed to discover the 3 petitioner s alleged post-traumatic stress disorder). 4 Even with the consideration of new evidence, Petitioner has failed to establish that 5 counsel s decision to forgo evidence of Petitioner s mental state at the time of the crime was 6 unreasonable. Cf. Jeffries v. Blodgett, 5 F.3d 1180, 1198 (9th Cir. 1993) (finding that the 7 defendant s unsworn denial of the crimes during his statutory allocution made his refusal 8 to seek mitigation a logical strategy ). Because Petitioner s allegations of deficient 9 performance are speculative and he has not shown that counsel s representation fell below 10 prevailing professional standards, the PCR court s determination that Petitioner failed to 11 establish deficient performance was not based on an unreasonable determination of the facts 12 or application of Strickland. 13 Prejudice 14 In assessing prejudice for a sentencing IAC claim, the Court considers the totality of the 15 mitigation, weighs it against the aggravation, and determines whether there is a reasonable 16 probability that the sentence would have been different if the additional information had been 17 presented. Wiggins v. Smith, 539 U.S. 510, 534 (2003). 18 Even considering Petitioner s new evidence, the Court determines that he is not entitled 19 to relief. In assessing whether there is a reasonable probability the outcome would have been 20 different if counsel had presented this evidence at sentencing, this Court must consider the 21 relevant provisions of Arizona s death penalty statute at the time Petitioner was sentenced: 22 mitigating circumstances are any factors relevant in determining whether to impose a 23 sentence less than death, including any aspect of the defendant s character, propensities or 24 record and any of the circumstances of the offense ; mitigation evidence can be presented 25 regardless of admissibility and need only be proven by a preponderance; the burden is on the 26 defendant to prove mitigation; and the court shall impose a sentence of death if it finds at 27 least one aggravating circumstance and no mitigating circumstances sufficiently substantial 28 to call for leniency. A.R.S. § 13-703(C), (E), (G) (West 1993). - 56 - 1 Arizona courts assess whether mitigating factors are proven and consider the quality 2 and strength of those factors. State v. Newell, 212 Ariz. 389, 405, 132 P.3d 833, 849 (2006). 3 Mitigating evidence must be considered regardless of whether there is a nexus between the 4 mitigating factor and the crime, but the lack of a causal connection may be considered in 5 assessing the weight of the evidence. Id.; State v. Hampton, 213 Ariz. 167, 185, 140 P.3d 6 950, 968 (2006) (finding horrendous childhood less weighty and not sufficiently substantial 7 to call for leniency, in part, because not tied to the offense). When the experts indicate that 8 a defendant knew right from wrong and could not establish a causal nexus between the 9 mitigating factors and [the] crime, the Arizona courts may afford evidence of abusive 10 childhood, personality disorders, and substance abuse limited value. State v. Johnson, 212 11 Ariz. 425, 440, 133 P.3d 735, 750 (2006). 12 The new information offered by Petitioner to support his IAC allegations is speculative 13 and cumulative. Petitioner s new psychological expert acknowledged that his report is 14 limited to potential psychiatrically related scenarios during and around the time of the 15 victim s death because Petitioner continues to maintain his innocence and repeatedly stated 16 during his interviews with this examiner that during the estimated time period when the 17 victim had died, he had not been in contact with her. He stated that he had no knowledge of 18 any events that led to [her] death. (Dkt. 103, Ex. Y at 51, 8 (emphasis added).) Dr. Silva 19 offers nothing more than speculation that Petitioner s PTSD and other disorders were a 20 contributing factor to the victim s death, contrary to the Arizona Supreme Court s 21 determination that Petitioner planned and deliberated the murder. Spears,184 Ariz. at 294, 22 908 P.2d at 1079. 23 In addition, Dr. Silva s diagnosis does not differ significantly from that of Dr. 24 McMahon. The trial court considered and weighed the fact that Petitioner suffered from 25 PTSD and depression, and this Court concludes that the additional diagnoses of ADHD and 26 Factitious Disorder do not significantly alter the sentencing profile presented to the 27 sentencing judge. Strickland, 466 U.S. at 700; see Brown v. Ornoski, 503 F.3d 1006, 1016 28 (9th Cir. 2007) (observing that attention deficit disorder is somewhat common and is not - 57 - 1 quality mitigation). The same is true for the new evidence Petitioner has proffered 2 concerning the abuse he suffered as a child. The fact of Petitioner s difficult childhood and 3 abusive father was not in dispute at sentencing and was considered by the sentencing judge. 4 See Bonin v. Calderon, 59 F.3d 815, 834 (9th Cir. 1995) (finding of little value additional 5 facts regarding petitioner s difficult childhood where evidence of childhood abuse was 6 presented at sentencing). 7 Petitioner also proffers results from a qEEG examination to support his claim that he 8 suffers from frontal lobe dysfunction. Putting aside the questions of reliability and 9 availability of qEEG testing at the time of Petitioner s sentencing, see, e.g., Laura Stephens 10 Khoshbin & Shahram Khoshbin, Imaging the Mind, Minding the Image: An Historical 11 Introduction to Brain Imaging and the Law, 33 Am. J.L. & Med. 171 (2007), Petitioner has 12 not established that his alleged neurological impairment prevented him from complying with 13 the law or knowing right from wrong at the time of the crime; thus, it is not of significant 14 mitigating weight. See Johnson, 212 Ariz. at 440, 133 P.3d at 750 ( [T]he weight to be given 15 [to] mental impairment should be proportional to a defendant s ability to conform or 16 appreciate the wrongfulness of his conduct. ) (quoting State v. Trostle, 191 Ariz. 4, 21, 951 17 P.2d 869, 886 (1997)); State v. Ellison, 213 Ariz. 116, 144, 140 P.3d 899, 927 (2006) ( The 18 relationship between the mitigation evidence and the crime . . . can affect the weight given 19 to such evidence. ) (citing Newell, 212 Ariz. at 405, 132 P.3d at 849). Petitioner has not 20 proven that he suffers from a mental impairment which is a major contributing cause to his 21 conduct at the time of the crime. See State v. Stuard, 176 Ariz. 589, 610, 863 P.2d 881, 902 22 (1993) (finding of significant weight and meriting leniency evidence of severe organic brain 23 damage resulting in dementia and a borderline-retarded IQ that were significant causative 24 factors in the murders). Furthermore, the Arizona Supreme Court expressly found that 25 Petitioner murdered the victim in a planned and deliberate manner and that his actions were 26 not impulsive. Spears,184 Ariz. at 294, 908 P.2d at 1079. Thus, the fact that Petitioner s 27 frontal lobe dysfunction causes impulsivity and poor judgment (Dkt. 102 at 67) carries 28 little mitigating value. - 58 - 1 Speculative and conclusory allegations that are not supported by specific facts do not 2 establish Strickland prejudice. See James, 24 F.3d at 26. The cumulative nature of the new 3 information similarly limits its impact on the sentencing determination. See Babbit v. 4 Calderon, 151 F.3d 1170, 1176 (9th Cir. 1998) (no prejudice where evidence omitted at 5 sentencing was largely cumulative of the evidence actually presented ); see also Eddmonds 6 v. Peters, 93 F.3d 1307, 1322 (7th Cir. 1996) ( [W]e are certain counsel s failure to throw 7 a few more tidbits from the past or one more diagnosis of mental illness onto the scale would 8 not have tipped it in Eddmonds favor. ); Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005) 9 ( to establish prejudice, the new evidence that a habeas petitioner presents must differ in a 10 substantial way in strength and subject matter from the evidence actually presented at 11 sentencing ). 12 Conclusion 13 The Court alternatively concludes that the PCR court s ruling denying relief on Claim 14 15-C was not based on an unreasonable determination of the facts or an unreasonable 15 application of controlling federal law. Petitioner is not entitled to habeas relief. 16 Claim 15-D 17 Petitioner contends that trial counsel failed to adequately challenge the prosecution s 18 evidence in support of the pecuniary gain aggravating circumstance at sentencing and that 19 they should have presented additional witnesses and evidence on this issue. (Dkt. 79 at 95- 20 96.) In support, Petitioner incorporates the arguments he presented as to Claim 11, which 21 challenged the sufficiency of the evidence supporting the pecuniary gain aggravating 22 circumstance.13 (Id.) In Claim 11, Petitioner asserted that the victim s diary provided a more 23 complete picture of the relationship between Petitioner and the victim, including that 24 Petitioner had manipulated the victim s feelings for him to obtain money over a period of 25 years. (Dkt. 79 at 69.) Based on the victim s history of providing him with financial 26 27 28 13 The Court previously determined that Claim 11 is procedurally barred. (Dkt. 120 at 8-11.) - 59 - 1 assistance, Petitioner asserted that he had no motive to kill her. (Id. at 70-71.) 2 Background 3 Counsel filed a presentence memorandum arguing that the prosecution had not 4 presented any evidence of motivation for the murder and that theft after the fact was not 5 sufficient; therefore, the state had failed to establish that pecuniary gain motivated the 6 murder. (ROA 54.) The trial court found beyond a reasonable doubt that Petitioner 7 murdered the victim in order to obtain her vehicle and money. (ROA 96 at 2.) Specifically, 8 the court found that Petitioner planned to take the victim s property under the guise they 9 would be running off together ; Petitioner claimed to have paid for the truck but had no 10 income; the victim purchased two sleeping bags and withdrew $2,200 in cash advances on 11 her credit cards; Petitioner returned to San Diego with new sleeping bags, the victim s truck 12 and weapons, and over $1,000 in cash. (Id.) The Arizona Supreme Court affirmed the 13 pecuniary gain factor, holding that ample evidence shows that defendant murdered Jeanette 14 as part of a preconceived plan to obtain her truck and her money. Spears, 184 Ariz. at 292- 15 93, 908 P.2d at 1077-78. 16 During state PCR proceedings, Petitioner alleged in a conclusory fashion that 17 sentencing counsel s attack against the pecuniary gain aggravating circumstance was 18 ineffective. (ROA-PCR 157 at 21.) The PCR court held that counsel s performance was not 19 deficient and that there was no Strickland prejudice. (ROA-PCR 161.) 20 Discussion 21 In light of the state court s specific findings regarding pecuniary gain, the Court finds 22 that Petitioner was not prejudiced by counsel s failure to rely on the victim s diary to dispute 23 this aggravating circumstance. Reliance upon the diary might have provided some support 24 for counsel s argument that there was a lack of motivation for the murder. However, the trial 25 court s finding that pecuniary gain motivated the murder is not undercut by diary entries that 26 Petitioner had successfully manipulated the victim in the past for money. Rather, Petitioner s 27 past manipulation provides additional support for the court s finding that Petitioner 28 manipulated the victim for money prior to murdering her. Therefore, there is not a - 60 - 1 reasonable probability that the sentencing judge would not have found the pecuniary gain 2 aggravating factor if counsel had relied on information from the diary. 3 State v. Milke, 177 Ariz. 118, 127, 865 P.2d 779, 788 (1993), upon which Petitioner 4 relies, does not alter this conclusion. In Milke, the court concluded that pecuniary gain is not 5 proven beyond a reasonable doubt when there are conflicting inferences regarding the 6 motivation for the murder. As an initial matter, Petitioner has never suggested an alternative 7 motive for the murder; rather, he contends the State has not proven motive. To the extent 8 Milke reinforces the requirement that pecuniary gain must be found to be the motivating 9 factor for the murder beyond a reasonable doubt, the state court s findings satisfy that 10 requirement; the diary entries do not undermine the conclusion of the supreme court. 11 Because Petitioner fails to demonstrate prejudice, the PCR court s decision denying this 12 IAC claim was not contrary to or an unreasonable application of Strickland. Petitioner is not 13 entitled to relief on Claim 15-D. 14 Claim 17 15 Petitioner argues that the Arizona death penalty statute is unconstitutional in several 16 respects. (Dkt. 79 at 114-38.) Petitioner contends that the statutory scheme precludes 17 consideration of all relevant mitigation (Claim 17-A); it makes the death penalty mandatory 18 and establishes a presumption of death (Claim 17-B); it lacks standards for the sentencing 19 authority to follow (Claim 17-D); it denies the right to voir dire the sentencing judge (Claim 20 17-E); it allows the prosecutor unfettered discretion in determining whether to seek the death 21 penalty (Claim 17-F); it allows arbitrary and irrational imposition of the death penalty (Claim 22 17-G); it discriminates against young, male, poor defendants (Claim 17-H); and, finally, that 23 the death penalty constitutes cruel and unusual punishment (Claim 17-I). The Court has 24 already considered and concluded that Petitioner exhausted all of these challenges. (See Dkt. 25 120 at 13-14.) The Court rejects all of these claims in summary fashion, as follows. 26 Regarding Claim 17-A, the Ninth Circuit has explicitly rejected the contention that 27 Arizona s death penalty statute precludes the consideration of all relevant mitigation in 28 violation of Lockett v. Ohio, 438 U.S. 586 (1978) and Eddings v. Oklahoma, 455 U.S. 104 - 61 - 1 (1982). See Jeffers v. Lewis, 38 F.3d 411, 416-17 (9th Cir. 1994) (en banc). 2 Regarding Claim 17-B, in Walton v. Arizona, 497 U.S. 639, 651-52 (1990), overruled 3 on other grounds by Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court rejected the 4 claim that Arizona s death penalty statute is impermissibly mandatory and creates a 5 presumption in favor of the death penalty because it provides that the death penalty shall 6 be imposed if one or more aggravating factors are found and mitigating circumstances are 7 insufficient to call for leniency. 497 U.S. at 651-52 (citing Blystone v. Pennsylvania, 494 8 U.S. 299 (1990); Boyde v. California, 494 U.S. 370 (1990)); see Kansas v. Marsh, 548 U.S. 9 163, 126 S. Ct. 2516, 2524 (2006) (relying on Walton to uphold Kansas s death penalty 10 statute, which directs imposition of the death penalty when the state has proved that 11 mitigating factors do not outweigh aggravators); see also Smith v. Stewart, 140 F.3d 1263, 12 1272 (9th Cir. 1998) (summarily rejecting challenges to the mandatory quality of Arizona s 13 death penalty statute). 14 Regarding Claim 17-D, the Constitution does not require that a capital sentencer be 15 instructed in how to weigh any particular fact in the capital sentencing decision. See 16 Tuilaepa v. California, 512 U.S. 967, 979-80 (1994). Nor does the Constitution require that 17 a specific weight be given to any particular mitigating factor. See Harris v. Alabama, 513 18 U.S. 504, 512 (1995). Rather, the state sentencer has broad discretion to determine whether 19 death is appropriate once a defendant is found eligible for the death penalty. Tuilaepa, 512 20 U.S. at 979-80. Thus, Arizona s death penalty statute need not enunciate specific standards 21 to guide the sentencer s consideration of aggravating and mitigating circumstances. See id.; 22 see also Smith, 140 F.3d at 1272 (summarily rejecting the challenge that the statute does not 23 give the sentencer appropriate guidance). 24 Regarding 17-E, Petitioner cites no authority, let alone Supreme Court authority, to 25 support his claim that the Constitution provides the right to voir dire the sentencing judge 26 regarding the death penalty. Although the Constitution requires that a defendant receive a 27 fair trial before a fair and impartial judge with no bias or interest in the outcome, see Bracy 28 v. Gramley, 520 U.S. 899, 904-05 (1997), trial judges, like other public officials, operate - 62 - 1 under a presumption that they have properly discharged their official duties. See United 2 States v. Armstrong, 517 U.S. 456, 464 (1996); see also State v. Perkins, 141 Ariz. 278, 286, 3 686 P.2d 1248, 1256 (1984) (stating that a trial judge is presumed to be free of bias and 4 prejudice). The presumption of regularity applies to trial judges, absent clear evidence to the 5 contrary. See Armstrong, 517 U.S. at 464; see also State v. Rossi, 154 Ariz. 245, 248, 741 6 P.2d 1223, 1226 (1987) (mere possibility of bias or prejudice does not entitle a criminal 7 defendant to voir dire the trial judge at sentencing). As a result, this claim cannot form the 8 basis for federal habeas relief. See Williams, 529 U.S. at 381; Musladin, 549 U.S. at 76. The 9 Petitioner made no allegation of bias or prejudice when he raised this issue before the 10 Arizona Supreme Court. (See Opening Br. at 74.) 11 Regarding 17-F, prosecutors have wide discretion in making their decision whether or 12 not to pursue the death penalty. See McCleskey v. Kemp, 481 U.S. 279, 296-97 (1987); 13 Gregg, 428 U.S. at 199 (stating that pre-sentencing decisions by actors in the criminal justice 14 system that may remove an accused from consideration for the death penalty are not 15 unconstitutional). In Smith, the Ninth Circuit likewise disposed of the argument that 16 Arizona s death penalty statute is constitutionally infirm because the prosecutor can decide 17 whether to seek the death penalty. 140 F.3d at 1272. 18 Regarding 17-G, Petitioner argues that the death penalty statute is arbitrary and 19 irrational because the state courts did not conduct a proportionality review of his sentence. 20 (Dkt. 79 at 122-24; ROA-PCR 157 at 33-34.) There is no federal constitutional right to 21 proportionality review of a death sentence, McCleskey, 481 U.S. at 306 (citing Pulley v. 22 Harris, 465 U.S. 37, 43-44 (1984), and Arizona discontinued the practice in 1992, State v. 23 Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584 (1992). The Ninth Circuit has explained that 24 the interest implicated by proportionality review the substantive right to be free from a 25 disproportionate sentence is protected by the application of adequately narrowed 26 aggravating circumstance[s]. Ceja v. Stewart, 97 F.3d 1246, 1252 (9th Cir. 1996). 27 Regarding 17-H, Petitioner alleges that at the time of his sentencing, the death penalty 28 statute was applied in a way that discriminates against poor, young, male defendants in - 63 - 1 violation of the Fourteenth Amendment. (Dkt. 79 at 124-25; ROA-PCR 157 at 34.) Clearly 2 established federal law holds that a defendant who alleges an equal protection violation has 3 the burden of proving the existence of purposeful discrimination and must demonstrate 4 that the purposeful discrimination had a discriminatory effect on him. McCleskey, 481 5 U.S. at 292 (quoting Whitus v. Georgia, 385 U.S. 545, 550 (1967)). Therefore, to prevail 6 under the Equal Protection Clause, Petitioner must prove that the decisionmakers in his case 7 acted with discriminatory purpose. Id. Petitioner does not attempt to meet this burden. 8 This claim fails because he offers no evidence specific to his case that would support an 9 inference that his gender, his age, or economic status impacted his sentence. See Jeffers, 38 10 F.3d at 419 (finding no evidence that race or gender creates a constitutionally significant 11 risk of impermissible bias in Arizona capital sentencing). 12 Regarding 17-I, Petitioner challenges the death penalty as cruel and unusual punishment 13 under the Eighth Amendment. (Dkt. 79 at 126-27.) Clearly established federal law holds 14 that the death penalty does not constitute cruel and unusual punishment. Gregg, 428 U.S. 15 at 169; see also Roper v. Simmons, 543 U.S. 551, 568-69 (2005) (noting that the death 16 penalty is constitutional when applied to a narrow category of crimes and offenders). 17 Further, the Supreme Court has found that it is within the province of state legislatures to 18 assess the value of capital punishment; the Court concluded that the infliction of death as 19 a punishment for murder is not without justification and thus is not unconstitutionally 20 severe. Gregg, 428 U.S. at 187. 21 The state courts denied all of Petitioner s death penalty challenges. (Spears, 184 Ariz. 22 at 291, 908 P.2d at 1076; ROA-PCR 161.) Their decisions were neither contrary to nor an 23 unreasonable application of controlling Supreme Court law. Petitioner is not entitled to relief 24 for Claim 17. 25 CONCLUSION 26 The Court concludes that Petitioner is not entitled to habeas relief on any of his claims. 27 The Court further finds that an evidentiary hearing in this matter is neither warranted nor 28 - 64 - 1 required.14 Therefore, Petitioner s First Amended Petition for Writ of Habeas Corpus must 2 be denied and judgment entered accordingly. 3 CERTIFICATE OF APPEALABILITY 4 In the event Petitioner appeals from this Court s judgment, and in the interests of 5 conserving scarce resources that might be consumed drafting and reviewing an application 6 for a certificate of appealability (COA) to this Court, the Court on its own initiative has 7 evaluated the claims within the petition for suitability for the issuance of a certificate of 8 appealability. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d at 864-65. 9 Rule 22(b) of the Federal Rules of Appellate Procedure provides that when an appeal 10 is taken by a petitioner, the district judge who rendered the judgment shall either issue a 11 certificate of appealability ( COA ) or state the reasons why such a certificate should not 12 issue. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner has 13 made a substantial showing of the denial of a constitutional right. This showing can be 14 established by demonstrating that reasonable jurists could debate whether (or, for that 15 matter, agree that) the petition should have been resolved in a different manner or that the 16 issues were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 17 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For 18 procedural rulings, a COA will issue only if reasonable jurists could debate (1) whether the 19 petition states a valid claim of the denial of a constitutional right and (2) whether the court s 20 procedural ruling was correct. Id. 21 The Court finds that reasonable jurists could debate its resolution of Claim 15-C 22 whether trial counsel rendered ineffective assistance by failing to adequately investigate and 23 present available mitigation evidence at sentencing. Therefore, the Court issues a COA on 24 this issue. For the remaining claims and procedural issues, the Court declines to issue a COA 25 for the reasons set forth in the instant order and the Court s order of March 3, 2005. (Dkt. 26 14 27 28 The Court previously denied Petitioner s request for evidentiary development as to specific claims (Dkt. 120), but conducted an independent review as to all the claims as required by Rule 8 of the Rules Governing Section 2254 Cases. - 65 - 1 120.) 2 Based on the foregoing, 3 IT IS HEREBY ORDERED that Petitioner s First Amended Petition for Writ of 4 Habeas Corpus (Dkt. 79) is DENIED WITH PREJUDICE. The Clerk of Court shall enter 5 judgment accordingly. 6 7 8 9 10 IT IS FURTHER ORDERED vacating the stay of execution previously issued. (See Dkt. 3.) IT IS FURTHER ORDERED that a Certificate of Appealability is GRANTED as to the following: 11 Whether this Court erred in denying evidentiary development in support of Claim 15-C and whether trial counsel rendered ineffective assistance by failing to adequately investigate and present available mitigation evidence at sentencing. 12 IT IS FURTHER ORDERED that the Clerk of Court send a courtesy copy of this 13 Order to Rachelle M. Resnick, Clerk of the Arizona Supreme Court, 1501 W. Washington, 14 Phoenix, Arizona 85007-3329. 15 DATED this 14th day of September, 2009. 16 17 18 19 20 21 22 23 24 25 26 27 28 - 66 -

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