Speer v. Shinn et al, No. 2:2016cv04193 - Document 35 (D. Ariz. 2023)

Court Description: ORDER denying Speer's Petition for Writ of Habeas Corpus (Doc. 13 ). The Clerk of Court shall enter judgment accordingly. IT IS FURTHER ORDERED denying Speer's request for evidentiary development. (Doc. 23 ) IT IS FURTHER ORDERED granting a certificate of appealability with respect to Claims 7, 8, and 14. IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329. Signed by Chief Judge G Murray Snow on 3/14/23. (SMF)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Paul Bradley Speer, 9 Petitioner, 10 11 v. 12 Ryan Thornell, et al., 13 No. CV-16-04193-PHX-GMS ORDER DEATH PENALTY CASE Respondents.1 14 15 Petitioner Paul Bradley Speer is an Arizona death row inmate seeking federal habeas 16 corpus relief. Before the Court are his habeas petition and his notice of request for 17 evidentiary development. (Docs. 13, 23.) Respondents filed an answer to the petition and 18 a response in opposition to the request for evidentiary development. (Docs. 16, 24.) The 19 petition and the request for evidentiary development are denied for the reasons set forth 20 below. 21 I. BACKGROUND 22 In 2007 a Maricopa County jury convicted Speer of first-degree murder and other 23 offenses and he was sentenced to death. The Arizona Supreme Court, in its opinion 24 affirming the convictions and sentences, described the facts surrounding the crimes. State 25 v. Speer, 221 Ariz. 449, 452–54, 212 P.3d 787, 790–92 (2009). These facts are “presumed 26 correct.” Atwood v. Ryan, 870 F.3d 1033, 1039 (9th Cir. 2017) (citing 28 U.S.C. § 27 1 28 Under Federal Rule of Civil Procedure 25(d), Ryan Thornell, the Director of the Arizona Department of Corrections, Rehabilitation & Reentry, is substituted for the former Director, David Shinn. 1 2254(e)(1)). 2 On March 14, 2002, Speer and his half-brother Chris Womble burglarized a Phoenix 3 apartment. The apartment’s residents, Adan and Enriqueta Soto and their three children, 4 were not at home but a neighbor saw two men trying to open an apartment window and 5 called the police. Other witnesses directed police to the apartment of Sabrina and Bill 6 Womble, Speer’s mother and stepfather, where Speer and Chris were found and arrested. 7 Officers searched the apartment and found items belonging to the Sotos. 8 Speer was held at the Madison Street Jail. He made telephone calls to family and 9 friends, including his half-brother Brian Womble and an older man named Al Heitzman, 10 with whom Brian lived. The calls were recorded pursuant to the policy of the Maricopa 11 County Sheriff’s Office (“MCSO”). 12 Speer spoke repeatedly with Heitzman and Brian Womble about posting Speer’s 13 bond. Speer stressed that he needed to be released so that he could talk with the victims 14 and convince them not to testify. 15 The necessary funds were not forthcoming, however, and Speer and Brian 16 eventually moved on to “Plan B.” Speer told Brian to “make sure you take care of 17 everybody in that house . . . there’s only like two.” In subsequent calls Speer reiterated that 18 Brian could do the job alone as there were only “two people in there,” that “everything in 19 there has to go,” and that Brian should “make sure you talk to both people.” 20 On May 17, Brian proposed that he break into the apartment and wait for the Sotos 21 to come home. Speer suggested instead that Brian pose as a police officer who needed to 22 take photos for the upcoming trial. Brian said that he had staked out the apartment complex. 23 Speer said, “Handle business fool, alright?” 24 On May 19, Speer called Brian again. This time they discussed a “surprise birthday 25 party.” Speer said it would be a waste of a party if Brian did not get both people. Brian told 26 Speer that he now had a silencer for his gun. 27 On May 24, Speer spoke to Brian, urging him to carry out their plan that night. He 28 asked Brian: “Is it pretty sure you’re going to . . . you’ll be able to get it running tonight?” -2- 1 Speer also told him to make sure to throw away the evidence. Speer again asked: “I don’t 2 have nothing to worry about, about you getting the car together, right?” 3 On May 25, 2002, at 3:00 a.m., the Sotos returned home from a party. At 4 approximately 5:00 a.m., Enriqueta Soto called 911. When EMTs arrived, they found her 5 on the living room couch. She had been shot but she survived her wounds. An EMT found 6 Adan lying in bed with his arm around an infant. Adan was dead from a gunshot wound 7 but the infant was unharmed. 8 9 When police arrived, they found the screen for the front window to the apartment removed. Brian Womble’s palm prints were identified on the screen. 10 On the day after the murder, Speer called Brian and asked him if he got “the car 11 running” and fixed “both parts.” Brian said, “Yep, perfect.” Speer then told Brian that he 12 needed to “get rid of those [engine parts].” 13 On June 10, Speer called Brian, who told him one of the Sotos was still alive. Speer 14 said he was not worried. On June 19, Speer sent a letter to Brian reminding him to get rid 15 of the “engine parts” and his shoes. When police later searched Brian’s bedroom, they 16 found the letter and a book about silencers. 17 A grand jury indicted Speer on six felonies, including first-degree murder, in 18 connection with the events of May 25. The State filed a notice of intent to seek the death 19 penalty, alleging four aggravating factors: that Speer was previously convicted of a serious 20 offense (armed robbery), A.R.S. § 13–751(F)(2); that he knowingly created a grave risk of 21 death to the Soto’s infant, A.R.S. § 13–751(F)(3); that the murder was committed in a 22 heinous or depraved manner (witness elimination), A.R.S. § 13–751(F)(6); and that Speer 23 committed the murder while in custody, A.R.S. § 13–751(F)(7). 24 In January 2007, the jury returned guilty verdicts on the six counts related to the 25 May 25 shooting, as well as two counts related to the March 14 burglary. The jury then 26 found that all four aggravating factors had been proved beyond a reasonable doubt and 27 determined that Speer should be sentenced to death for Adan Soto’s murder. 28 -3- 1 The Arizona Supreme Court affirmed. Speer, 221 Ariz. 449, 212 P.3d 787. After 2 unsuccessfully pursuing post-conviction relief (“PCR”) in state court,2 Speer sought habeas 3 relief in this Court, filing his petition on October 6, 2017. (Doc. 13.) He filed a notice of a 4 request for evidentiary development on August 2, 2018. (Doc. 23.) 5 Speer was represented at trial and sentencing by Roberts Storrs, Bruce Blumberg, 6 and Pamela Nicholson. The prosecutor was Jeanette Gallagher. Maricopa County Superior 7 Court Judge Andrew Klein presided over Speer’s trial and subsequent PCR proceedings. 8 II. 9 APPLICABLE LAW A. Exhaustion & Procedural Default 10 A writ of habeas corpus cannot be granted unless the petitioner has exhausted all 11 available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 12 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). To exhaust state remedies, the 13 petitioner must “fairly present” his claims to the state’s highest court in a procedurally 14 appropriate manner. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). 15 A claim is “fairly presented” if the petitioner has described the operative facts and 16 the federal legal theory on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6 17 (1982). A petitioner must clearly alert the state court that he is alleging a specific federal 18 constitutional violation. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004); see also 19 Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). 20 In Arizona there are two avenues for petitioners to exhaust federal constitutional 21 claims: direct appeal and post-conviction proceedings. Rule 32 of the Arizona Rules of 22 Criminal Procedure governs PCR proceedings. It provides that a petitioner is precluded 23 from relief on any claim that could have been raised on appeal or in a prior PCR petition. 24 Ariz. R. Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a) may be avoided only if 25 a claim falls within certain exceptions and the petitioner can justify why the claim was 26 The PCR court denied Speer’s petition and the Arizona Supreme Court denied his petition for review without comment. When the state’s highest court denies a claim summarily, the federal court looks through to the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). 2 27 28 -4- 1 omitted from a prior petition or not presented in a timely manner. See Ariz. R. Crim. P. 2 32.1(b)–(h), 32.2(b), 32.4(a). 3 A habeas petitioner’s claims may be precluded from federal review in two ways. 4 First, a claim may be procedurally defaulted in federal court if it was actually raised in state 5 court but found by that court to be defaulted on state procedural grounds. Coleman, 501 6 U.S. at 729–30. Second, a claim may be procedurally defaulted if the petitioner failed to 7 present it in state court and “the court to which the petitioner would be required to present 8 his claims in order to meet the exhaustion requirement would now find the claims 9 procedurally barred.” Id. at 735 n. 1. If no remedies are currently available pursuant to Rule 10 32, the claim is “technically” exhausted but procedurally defaulted. Coleman, 501 U.S. at 11 732, 735 n. 1; see also Gray v. Netherland, 518 U.S. 152, 161–62 (1996). 12 B. 13 Federal habeas claims are analyzed under the framework of the Antiterrorism and 14 Effective Death Penalty Act of 1996 (“AEDPA”).3 Pursuant to AEDPA, a petitioner is not 15 entitled to habeas relief on any claim adjudicated on the merits in state court unless the 16 state court’s ruling (1) resulted in a decision that was contrary to, or involved an 17 unreasonable application of, clearly established federal law or (2) resulted in a decision 18 that was based on an unreasonable determination of the facts in light of the evidence 19 presented in state court. 28 U.S.C. § 2254(d). AEDPA & Martinez 20 A state court decision is “contrary to” clearly established federal law under § 21 2254(d)(1) if the decision applies a rule that contradicts the governing law set forth in 22 Supreme Court precedent, thereby reaching a conclusion opposite to that reached by the 23 Supreme Court on a matter of law, or if it confronts a set of facts that is materially 24 indistinguishable from a decision of the Supreme Court but reaches a different result. 25 26 27 Speer’s challenge to the constitutionality of AEDPA (Doc. 13 at 54) is meritless. See Crater v. Galaza, 491 F.3d 1119, 1125–26 (9th Cir. 2007) (holding that AEDPA violates neither the Suspension Clause nor the separation of powers doctrine). 3 28 -5- 1 Williams (Terry) v. Taylor, 529 U.S. 362, 405–06 (2000); see, e.g., Hooper v. Shinn, 985 2 F.3d 594, 614 (9th Cir. 2021). Under the “unreasonable application” prong of § 2254(d)(1), 3 a federal habeas court may grant relief where a state court “identifies the correct governing 4 legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the 5 particular . . . case” or “unreasonably extends a legal principle from [Supreme Court] 6 precedent to a new context where it should not apply or unreasonably refuses to extend that 7 principle to a new context where it should apply.” Id. at 407; see, e.g., Murray (Robert) v. 8 Schriro, 745 F.3d 984, 997 (9th Cir. 2014). 9 The Supreme Court has emphasized that “an unreasonable application of federal 10 law is different from an incorrect application of federal law.” Id. For a state court’s decision 11 to be an unreasonable application of clearly-established federal law, “the ruling must be 12 ‘objectively unreasonable, not merely wrong; even clear error will not suffice.’” Virginia 13 v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (quoting Woods v. Donald, 575 U.S. 312, 316 14 (2015) (per curiam)); see Shinn v. Kayer, 141 S. Ct. 517, 523 (2020); Bolin v. Davis, 13 15 F.4th 797, 805 (9th Cir. 2021). The burden is on the petitioner to show “there was no 16 reasonable basis for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 17 (2011). This standard is meant to be “difficult to meet.” Kayer, 141 S. Ct. at 523 (quoting 18 Richter, 562 U.S. at 102). 19 Under § 2254(d)(2), habeas relief is available if the state court decision was based 20 upon an unreasonable determination of the facts. See Miller-El v. Dretke (Miller-El II), 545 21 U.S. 231, 240 (2005). “[A] decision adjudicated on the merits in a state court and based on 22 a factual determination will not be overturned on factual grounds unless objectively 23 unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El 24 v. Cockrell (Miller-El I), 537 U.S. 322, 340 (2003). A state court’s factual determination 25 is presumed correct and a petitioner bears the burden of overcoming that presumption with 26 clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see Miller-El I, 537 U.S. at 340. A 27 “factual determination is not unreasonable merely because [a] federal habeas court would 28 have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 -6- 1 (2010); see Brumfield v. Cain, 576 U.S. 305, 314 (2015) (explaining that § 2254(d)(2) 2 requires federal courts to “accord the state trial court substantial deference”); Walden v. 3 Shinn, 990 F.3d 1183, 1196 (9th Cir. 2021), cert. denied, 142 S. Ct. 791 (2022); Ayala v. 4 Chappell, 829 F.3d 1081, 1094 (9th Cir. 2016) (“A state court’s factual findings are 5 unreasonable if ‘reasonable minds reviewing the record’ could not agree with 6 them.”) (quoting Brumfield, 576 U.S. at 314). 7 “[R]eview under § 2254(d)(1) is limited to the record that was before the state court 8 that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) 9 (holding that “the record under review is limited to the record in existence at that same 10 time, i.e. the record before the state court”); see Murray (Robert), 745 F.3d at 998 (“Along 11 with the significant deference AEDPA requires us to afford state courts’ decisions, AEDPA 12 also restricts the scope of the evidence that we can rely on in the normal course of 13 discharging our responsibilities under § 2254(d)(1).”). The Ninth Circuit has observed that 14 “Pinholster and the statutory text make clear that this evidentiary limitation is applicable 15 to § 2254(d)(2) claims as well.” Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (2013) (citing 16 § 2254(d)(2) and Pinholster, 563 U.S. at 185 n.7). Therefore, as the court explained in 17 Gulbrandson: 18 19 20 21 22 23 24 25 26 27 28 for claims that were adjudicated on the merits in state court, petitioners can rely only on the record before the state court in order to satisfy the requirements of § 2254(d). This effectively precludes federal evidentiary hearings for such claims because the evidence adduced during habeas proceedings in federal court could not be considered in evaluating whether the claim meets the requirements of § 2254(d). Id. at 993–94. For claims not adjudicated on the merits in state court, “federal habeas review . . . is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Coleman specifically held that ineffective assistance of counsel in PCR proceedings cannot establish cause for a claim’s procedural default. Id. -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Martinez v. Ryan, 566 U.S. 1 (2012), however, the Supreme Court created a “narrow exception” to that rule. The Court explained that: Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. Id. at 17; see also Shinn v. Ramirez, 142 S. Ct. 1718, 1733 (2022). Accordingly, under Martinez an Arizona habeas petitioner may establish cause and prejudice for the procedural default of a claim of ineffective assistance of trial counsel by demonstrating that (1) PCR counsel was ineffective and (2) the underlying ineffective assistance claim has some merit. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (citing Martinez, 566 U.S. at 14); Atwood, 870 F.3d at 1059–60. To establish “cause” under Martinez, a petitioner must demonstrate that PCR counsel was ineffective according to the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir. 2015). Strickland requires a demonstration “that both (a) post-conviction counsel’s performance was deficient, and (b) there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different.” Clabourne, 745 F.3d at 377 (citation omitted). To establish “prejudice” under the second prong of Martinez’s “cause and prejudice” analysis, a petitioner must demonstrate that his underlying ineffective assistance of trial counsel claim is “substantial.” Id. In Martinez the Supreme Court defined a “substantial” claim as a claim that “has some merit.” 566 U.S. at 14. The Court stated that the standard for finding a claim “substantial” is analogous to the standard for issuing a certificate of appealability. Id. at 14; see Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (en banc). Under that standard, a claim is “substantial” if “reasonable jurists could debate whether the issue should have been resolved in a different manner or that the claim was adequate to deserve encouragement.” Id. (citing Miller-El I, 537 U.S. at 336). -8- 1 A finding of “prejudice” for purposes of the “cause and prejudice” analysis, “does 2 not diminish the requirement . . . that petitioner satisfy the ‘prejudice’ prong under 3 Strickland in establishing ineffective assistance by post-conviction counsel.” Clabourne, 4 745 F.3d at 377. 5 6 The Ninth Circuit has offered guidance in assessing whether “cause” exists under Martinez. In Atwood, for example, the court explained: 13 In evaluating whether the failure to raise a substantial claim of ineffective assistance of trial counsel in state court resulted from ineffective assistance of state habeas counsel under Strickland, we must evaluate the strength of the prisoner’s underlying ineffective assistance of trial counsel claim. If the ineffective assistance of trial counsel claim lacks merit, then the state habeas counsel would not have been deficient for failing to raise it. Further, any deficient performance by state habeas counsel would not have been prejudicial, because there would not be a reasonable probability that the result of the post-conviction proceedings would have been different if the meritless claim had been raised. 14 870 F.3d at 1059–60; see Hooper v. Shinn, 985 F.3d 594, 627 (9th Cir. 2021); Murray 15 (Roger) v. Schriro, 882 F.3d 778, 816 (9th Cir. 2018); Runningeagle v. Ryan, 825 F.3d 16 970, 982 (9th Cir. 2016) (“[T]o find a reasonable probability that PCR counsel prejudiced 17 a petitioner by failing to raise a trial-level IAC claim, we must also find a reasonable 18 probability that the trial-level IAC claim would have succeeded had it been raised.”). 7 8 9 10 11 12 19 The Martinez exception to procedural default applies only to claims of ineffective 20 assistance of trial counsel. It has not been expanded to other types of claims. Martinez 21 (Ernesto) v. Ryan, 926 F.3d 1215, 1225 (9th Cir. 2019) (“[I]neffective assistance of PCR 22 counsel can constitute cause only to overcome procedurally defaulted claims of ineffective 23 assistance of trial counsel.”); Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015) 24 (explaining that the Ninth Circuit has “not allowed petitioners to substantially expand the 25 scope of Martinez beyond the circumstances present in Martinez”); Hunton v. Sinclair, 732 26 F.3d 1124, 1126–27 (9th Cir. 2013) (noting that only the Supreme Court can expand the 27 application of Martinez to other areas); see Davila v. Davis, 137 S. Ct. 2058, 2062–63, 28 -9- 1 2065–66 (2017) (holding that the Martinez exception does not apply to claims of 2 ineffective assistance of appellate counsel). 3 Finally, as discussed in more detail below, with respect to claims that were not 4 adjudicated on the merits, “a federal court may not hold an evidentiary hearing—or 5 otherwise consider new evidence,” unless the “stringent requirements” of 28 USC § 6 2254(e)(2) are met. Ramirez, 142 S. Ct. at 1739. 7 C. 8 Claims of ineffective assistance of counsel are governed by the principles set out in 9 Strickland. “The benchmark for judging any claim of ineffectiveness must be whether 10 counsel’s conduct so undermined the proper functioning of the adversarial process that the 11 trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. To 12 prevail under Strickland, a petitioner must show that counsel’s representation fell below an 13 objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at 14 687–88. Unless both showings are made, “it cannot be said that a conviction or death 15 sentence resulted from a breakdown in the adversary process that renders the result 16 unreliable.” Id. at 687. Ineffective Assistance of Counsel 17 The inquiry under Strickland is highly deferential. Id. at 689. “A fair assessment of 18 attorney performance requires that every effort be made to eliminate the distorting effects 19 of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to 20 evaluate the conduct from counsel’s perspective at the time.” Id. The “standard is 21 necessarily a general one,” Bobby v. Van Hook, 558 U.S. 4, 7 (2009), because “[n]o 22 particular set of detailed rules for counsel’s conduct can satisfactorily take account of the 23 variety of circumstances faced by defense counsel or the range of legitimate decisions 24 regarding how best to represent a criminal defendant,” Strickland, 466 U.S. at 688–89. 25 Deficient performance, Strickland’s first prong, is established by “showing that 26 counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed 27 the defendant by the Sixth Amendment.” Id. at 687. To make this showing, a petitioner 28 - 10 - 1 must overcome “the presumption that, under the circumstances, the challenged action 2 might be considered sound trial strategy.” Id. at 689 (quotation omitted). 3 “The question is whether an attorney’s representation amounted to incompetence 4 under ‘prevailing professional norms,’ not whether it deviated from best practices or most 5 common custom.” Richter, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690). “The 6 defendant bears the heavy burden of proving that counsel’s assistance was neither 7 reasonable nor the result of sound trial strategy.” Murtishaw v. Woodford, 255 F.3d 926, 8 939 (9th Cir. 2001) (citing Strickland, 466 U.S. at 689). “[T]he relevant inquiry . . . is not 9 what defense counsel could have pursued, but rather whether the choices made by defense 10 counsel were reasonable.” Murray (Robert), 745 F.3d at 1011 (quoting Babbitt v. Calderon, 11 151 F.3d 1170, 1173 (9th Cir. 1998)). 12 With respect to Strickland’s second prong, a petitioner must affirmatively prove 13 prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s 14 unprofessional errors, the result of the proceeding would have been different. A reasonable 15 probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 16 466 U.S. at 694. “The likelihood of a different result must be substantial, not just 17 conceivable.” Richter, 562 U.S. at 112 (citing Strickland, 466 U.S. at 693); see Hooper, 18 985 F.3d at 628. The petitioner “bears the highly demanding and heavy burden [of] 19 establishing actual prejudice.” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005) 20 (quoting Williams (Terry), 529 U.S. at 394). 21 Under AEDPA claims of ineffective assistance of counsel are subject to two layers 22 of deference. “Surmounting Strickland’s high bar is never an easy task,” Padilla v. 23 Kentucky, 559 U.S. 356, 371 (2010), and “[e]stablishing that a state court’s application of 24 Strickland was unreasonable under § 2254(d) is all the more difficult,” Richter, 562 U.S. 25 at 105; see Burt v. Titlow, 571 U.S. 12, 15 (2013) (explaining that under AEDPA, the 26 reviewing court “gives both the state court and the defense attorney the benefit of the 27 doubt”). “When § 2254(d) applies, the question is not whether counsel’s actions were 28 reasonable. The question is whether there is any reasonable argument that counsel satisfied - 11 - 1 Strickland’s deferential standard.” Richter, 562 U.S. at 105. Therefore, the “only question 2 that matters” under § 2254(d) is whether the state court’s decision was “so obviously wrong 3 as to be ‘beyond any possibility for fairminded disagreement.’” Kayer, 141 S. Ct. at 526 4 (quoting Richter, 562 U.S. at 102, 103). 5 III. ANALYSIS 6 Speer’s petition contains 29 claims, some of which are unexhausted and many of 7 which contain several subclaims. (Doc. 13.) He seeks evidentiary development with respect 8 to 17 of those claims, including all of his ineffective assistance of counsel claims. (Doc. 9 23.) The Court will first consider the procedural status of the claims and, where necessary, 10 their merits. The Court will then turn to Speer’s requests for evidentiary development. 11 A. Claims Related to Jailhouse Phone Calls 12 Speer raises several claims relating to his jailhouse phone calls, including challenges 13 to the trial court’s rulings and the State’s handling of the evidence (Claims 8, 9, and 13) 14 and allegations of ineffective assistance of counsel (Claims 1–4). These claims are 15 meritless. 16 Additional background 17 As noted above, the Madison Street Jail kept recordings of phone calls made by 18 inmates. Speer, 221 Ariz. at 456, 212 P.3d at 794. After being stored for six months, the 19 tapes were reused and the old data recorded over. Id. A database was kept with information 20 about the calls, from which specific recordings could be located. Id. Law enforcement or 21 an inmate could request that a cassette be “tagged,” in which case the recording was not 22 taped over. Id. 23 In June 2002, following a tip from a jailhouse informant, police subpoenaed 24 recordings of phone calls made by Speer to the home of Al Heitzman, with whom Brian 25 Womble was staying. Id. Speer made many of the calls using a different inmate’s booking 26 number, blowing into the phone to defeat the voice-recognition system. (See RT 5/19/06 27 28 - 12 - 1 at 42.)4 He also made numerous three-party calls, in violation of jail regulations. (See RT 2 12/12/06 at 166–67.) 3 The State identified a total of 58 calls dating from the relevant period.5 (See ME 4 5/20/15 at 4 n.1; PCR Pet. 10/25/14, Ex. 3.) Detectives listened to 36 of these recordings, 5 preserving 27 as containing relevant information about the murder. Those tapes were 6 played at trial. The remaining tapes were either reviewed but not preserved (9 tapes) or 7 neither reviewed nor preserved (22 tapes). 8 On July 23, 2002, Brian Womble’s attorney filed a discovery motion, requesting 9 “[a]ll statements of the defendant and anyone who will be tried with defendant.”6 Speer, 10 221 Ariz. at 456, 212 P.3d at 794. In response, the State produced the 27 recordings. Id. 11 “When the request was made, Speer’s attorney knew that MCSO policy was to reuse 12 cassettes after six months.” Id. The remaining 31 tapes were destroyed pursuant to MCSO 13 policy. 14 On April 29, 2005, Speer moved to suppress the 27 calls, arguing that the State acted 15 in bad faith by preserving only calls unfavorable to Speer. (EIR 248.)7 The trial court held 16 an evidentiary hearing on the matter. (RT 5/19/06 at 71; RT 7/28/06 at 50.) The case agent, 17 Detective Dennis Olson, testified that he preserved every phone call that contained any 18 discussion about the homicide.8 (Id.; see RT 7/28/06 at 50.) He acknowledged that he was 19 legally required to preserve calls containing any information about the murder whether “it 20 helps the defense or helps the prosecution.” (Id. at 70.) He testified that the supplement 21 22 23 24 25 26 27 28 “RT refers to the reporter’s transcripts from Speer’s state court proceedings. “ME” refers to the trial court’s Minute Entries. 5 The rulings of the trial court and the Arizona Supreme Court took into account a total of only 36 tapes. The additional 22 tapes were identified during the PCR proceedings. 6 Speer and Brian Womble were both charged with the murder. Their trials were later severed. (See ME 3/28/06.) Speer did not join Womble’s motion. 7 “EIR” refers to the document number in the Electronic Index of Record in Maricopa County Case # CR2002-01096. 8 Olson and two other detectives, including Detective Steve Ulrich, who served as the case agent until he retired and was replaced by Olson, listened to recordings over the period of a day and a half. 4 - 13 - 1 provided to the defense listed the calls he reviewed, including the nine calls he listened to 2 but did not preserve. (Id. at 76.) Finally, Det. Olson testified that there were a number of 3 calls the detectives neither listened to nor preserved, and that not every call was listed in 4 the supplement. (Id. at 76–77.) 5 The court denied the suppression motion, finding that Speer did not show the 6 detectives acted in bad faith by failing to preserve the tapes or that the tapes contained 7 exculpatory or relevant information. (ME 7/28/06 at 2.) The ruling referred to the 9 tapes 8 that were listened to but not preserved; it did not address the additional 22 calls that were 9 destroyed without being reviewed. Speer subsequently moved for a Willits instruction, 10 which the trial court also denied.9 (ME 1/16/07.) 11 Claims 1, 2, 3, and 8: 12 In Claim 8, Speer alleges that his due process rights were violated by the trial court’s 13 failure to suppress the 27 recorded jail phone calls that the State used at trial. (Doc. 13 at 14 96.) In Claim 1, he alleges that counsel performed ineffectively in litigating their motion 15 to suppress the calls. (Id. at 56.) In Claim 2, he alleges that counsel performed ineffectively 16 by allowing the 31 recorded phone calls to be destroyed. (Id. at 64.) In Claim 3, he alleges 17 that counsel performed ineffectively in litigating the Rule 15 discovery issue.10 (Id. at 69.) 18 Claim 8 19 Speer raised Claim 8 on direct appeal. (Opening Br. at 14.)11 The Arizona Supreme 20 Court denied the claim, agreeing with the trial court that “Speer did not establish that the 21 destroyed tapes contained material exculpatory evidence or that the police acted in bad 22 faith.” Speer, 221 Ariz. at 457, 212 P.3d at 795. The court noted that “because the nine 23 calls at issue occurred after the first preserved call, and incriminating calls continued up to 24 25 26 27 28 9 State v. Willits, 96 Ariz. 184, 186, 393 P.2d 274, 276 (1964), provides that if the State loses or destroys material evidence, the jury may infer that the evidence was exculpatory. 10 Arizona Rule of Criminal Procedure 15.1 governs the State’s disclosure obligations. As relevant here, Rule 15.1(b)(2) requires the State to disclose “any statement of the defendant” that is “within the State’s possession or control.” 11 See Doc. 16, Ex. A. - 14 - 1 and after the murder, there is no logical inference that these nine had a tendency to 2 exonerate.” Id. Although the court acknowledged that the detectives “did not listen to every 3 call,” meaning the court was aware that more than 36 calls had been tagged, its ruling, like 4 the trial court’s, discussed only the calls to which the detectives actually listened. See id. 5 at 456–57, 212 P.3d at 794–95. 6 Speer raised this claim again during his PCR proceedings, this time referencing the 7 22 tapes that were never reviewed. (PCR Pet. at 5–19.) The court found the claim precluded 8 under Rules 32.6(c) and 32.2(a)(2) because it had been raised and denied on direct appeal. 9 (ME 5/20/15 at 5.) The court alternatively found that the claim was meritless even taking 10 into account the additional 22 recordings that were destroyed without being reviewed. (Id. 11 at 2–3.) The court found that Speer could not “establish, beyond mere speculation and 12 conjecture, that the destroyed jail recordings contained material exculpatory evidence, or 13 even evidence that would be in some way beneficial . . . as mitigation.” (Id. at 4.) Instead, 14 the court concluded: 15 20 [G]iven Defendant’s efforts to conceal his identity as the one making calls, concealing the recipient by placing a call and then asking the recipient to add others to the calls, the timing of the calls in relation to Defendant’s incarceration, anticipated court appearances on pending charges, the proposed “discussions” with the victims, the murders, and the post-murder conversations and activities, the Court believes those calls, if disclosed, would have been more incriminating than having any tendency to exonerate Defendant or provide mitigation. 21 (Id. at 5.) The court also found no bad faith in the State’s failure to preserve the tapes and 22 therefore no due process violation. (Id.) 16 17 18 19 23 The parties both treat the PCR court’s alternative merits ruling as the relevant state 24 court decision. Speer argues that the decision was contrary to or an unreasonable 25 application of clearly established federal law and based on an unreasonable determination 26 of the facts. (Doc. 13 at 100–105.) This argument fails. 27 In California v. Trombetta, the Supreme Court reiterated that “[a] defendant has a 28 constitutionally protected privilege to request and obtain from the prosecution evidence - 15 - 1 that is either material to the guilt of the defendant or relevant to the punishment to be 2 imposed.” 467 U.S. 479, 485 (1984) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). 3 The Court explained that the government’s constitutional duty to preserve evidence is 4 “limited to evidence that might be expected to play a significant role in the suspect’s 5 defense.” Id. at 488. To meet this standard of materiality, the evidence “must both possess 6 an exculpatory value that was apparent before the evidence was destroyed, and be of such 7 a nature that the defendant would be unable to obtain comparable evidence by other 8 reasonably available means.” Id. at 489. 9 If the evidence is not material and exculpatory, however, but instead only 10 “potentially useful,” a different legal standard applies. Arizona v. Youngblood, 488 U.S. 11 51, 57 (1988). While under Brady due process is violated by the failure to disclose material 12 exculpatory evidence, regardless of the State’s good or bad faith, id., the failure to preserve 13 evidence that is only “potentially useful” does not violate due process “unless a criminal 14 defendant can show bad faith on the part of the police.” Id. at 58; see Illinois v. Fisher, 540 15 U.S. 544, 547–48 (2004). 16 Bad faith can be demonstrated where there is evidence in the record of “official 17 animus towards [a defendant] or of a conscious effort to suppress exculpatory evidence.” 18 Trombetta, 467 U.S. at 488. The presence or absence of bad faith turns on the government’s 19 knowledge of the apparent exculpatory value of the evidence at the time it was lost or 20 destroyed. Youngblood, 488 U.S. at 56 n.*; see Sanders v. Cullen, 873 F.3d 778, 811 (9th 21 Cir. 2017); United States v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993). Bad faith arises 22 only in “that class of cases where the interests of justice most clearly require it, i.e., those 23 cases in which the police themselves by their conduct indicate that the evidence could form 24 a basis for exonerating the defendant.” Youngblood, 488 U.S. at 58. The burden of showing 25 bad faith rests with the defendant. Id. 26 To support his argument that the tapes were potentially exculpatory and therefore 27 destroyed in bad faith, Speer contends that 96% (26 out of 27) of the admitted tapes 28 contained mitigating evidence. (Doc. 13 at 100.) He next asserts that 75% of the total - 16 - 1 number of calls Det. Olson listened to contained mitigating evidence and therefore Olson 2 “reasonably knew that at least 75% of the 22 calls he intended but failed to listen to 3 contained mitigating evidence.”12 (Id. at 103.) This data, according to Speer, proves that 4 the destroyed tapes had exculpatory value, which the detectives were aware of, and 5 therefore the destruction of the tapes was carried out in bad faith. (Id.) Speer also argues 6 that among the 22 calls the detectives did not listen to are two calls recorded by Heitzman. 7 According to Speer, these calls also contain mitigating information, supporting his 8 argument that the remaining unreviewed calls are also likely to contain exculpatory 9 material. Finally, Speer alleges that in allowing the destruction of the 22 unreviewed tapes, 10 “the police did not act in accordance with their normal practices,” apparently referring to 11 the fact that the police, having “tagged” the calls, failed to preserve them past the standard 12 six-month period. (Id. at 102.) 13 The PCR court specifically rejected these arguments. It found that “[m]erely 14 suggesting a statistical probability that there might have been mitigation on the destroyed 15 calls based on sampling the 27 calls the police preserved is speculative and not sufficient 16 to establish material exculpatory evidence or mitigation evidence.” (ME 5/20/15 at 7.) This 17 was a reasonable determination. 18 Speer’s argument relies both on the characterization of certain evidence in the 19 reviewed tapes as being so mitigating that the police would be in bad faith for failing to 20 review further tapes on the possibility that they might contain additional mitigating 21 evidence of the same quality, and second, on the presumption that the contents of the 22 22 calls that were destroyed without being reviewed would mirror similar content as the 36 23 calls that were reviewed. 24 This, however, is far from sufficiently established. According to Speer, the 25 mitigating evidence in the preserved calls includes Speer “encourag[ing] Womble to just 26 talk to the victims and offer them money or a gun to not come to court”; the fact that “Speer 27 12 28 The math behind the 75% figure is not readily apparent (26 out of 36 tapes is 72%). - 17 - 1 committed property crimes to help his family—such as to pay for Womble’s college 2 courses and [his half-sister] Delilah’s clothes”13; and Speer expressing love for his family 3 members. (Doc. 13 at 62.) To the extent this is what Speer is counting as “mitigating 4 evidence,” it is unclear how its existence is so mitigating that Det. Olson can be accused 5 of bad faith for failing to review further videotapes on the possibility that they might 6 contain similar content. The fact that Speer advocated witness tampering, albeit short of 7 the murder plot that soon became “Plan B,” and admitted to other crimes is not mitigating 8 evidence, at least not to the degree that Det. Olson acted in bad faith by failing to flag it as 9 such. Assuming the unreviewed tapes included similar information, the destroyed evidence 10 did not have an exculpatory value with which the detectives can be charged. 11 Second, Speer’s speculative assertion that a certain percentage of the unreviewed 12 tapes would have contained mitigating evidence does not take into account that some or all 13 of those same tapes may have contained inculpatory evidence to the same extent that the 14 reviewed tapes actually did. Thus, from both the standpoint of the police’s bad faith, and 15 of any prejudice to Speer which it is his burden to show, it is unclear how any such 16 speculation could result in any sort of assurance that such tapes would have been more or 17 less inculpatory to Speer in terms of affecting his final verdict, let alone establishing any 18 bad faith by Det. Olson. 19 Speer has not met his burden of showing the police acted in bad faith. Youngblood, 20 488 U.S. at 58; see United States v. Olivares, 843 F.3d 752, 758–59 (8th Cir. 2016) (finding 21 that defendant failed to show bad faith in government’s failure to record and preserve all 22 13 23 24 25 26 27 28 This refers to a conversation with Brian Womble in which Speer complained, referring to Al Heitzman: All that shit I worked for, dude. . . . All that motherfucking shit I did with that fag, bro, that I fucking did, dude, was so that you can fucking show that my family could sit proper, dude. . . . So that. . . . when I was in jail, fucking D could get clothes, you got fucking kung fu paid, I got fucking all the money, TV, all that shit in jail last time. And now this fag’s acting like fucking. . . . Hey dude, he’s a scary fucking bitch, dude. (See EIR 327, tape dated 4/29/02 at 11.) - 18 - 1 jail phone calls with co-defendants while relying on incriminating calls at trial). The 2 destruction of the tapes was not a product of bad faith. See United States v. Guerrero- 3 Hidrogo, 710 F.App’x. 774, 775 (9th Cir. 2018) (explaining that “the government’s routine 4 overwrite of the [surveillance video] every sixty days was not a product of ‘official animus’ 5 or of a ‘conscious effort to suppress exculpatory evidence’”) (quoting Trombetta, 467 U.S. 6 at 488). 7 Accordingly, Claim 8 is denied. 8 Claims 1, 2, and 3 9 Speer alleges that counsel performed ineffectively in litigating their motion to 10 suppress the calls (Claim 1) and by allowing the 31 recorded phone calls to be destroyed 11 (Claim 2). (Doc. 13 at 56, 64.) He also alleges that counsel performed ineffectively in 12 pursuing discovery of the recorded calls (Claim 3). (Id. at 69.) He raised these claims in 13 his PCR petition and the court denied them. (PCR Pet. 10/25/14 at 20–25; ME 5/20/15 at 14 6–8.) 15 In Claim 1, Speer argues that counsel should have cited Kyles v. Whitney, 514 U.S. 16 419, 437 (1995), which held that a prosecutor has a “duty to learn of any favorable evidence 17 known to others acting on the government’s behalf . . . , including the police.” (Doc. 13 at 18 61.) The PCR court disagreed, explaining “the holding in Kyles does not support 19 Defendant’s argument. Kyles imposes on prosecutors a duty to disclose known, favorable 20 evidence rising to a material level of importance. Here, unlike Kyles, the Defendant cannot 21 show the exculpatory nature and materiality of the evidence that was destroyed.” (ME 22 5/20/15 at 6–7.) The court continued: 23 24 25 26 27 28 Merely suggesting a statistical probability that there might have been mitigation on the destroyed calls based on sampling the 27 calls the police preserved is speculative and not sufficient to establish material exculpatory evidence or mitigation evidence. The jury listened to 27 tapes during which Defendant reminded others that the calls were being recorded, that he needed bail posted, that his codefendant Womble should talk to the two burglary victims, that Womble should get his gun and steal a diamond ring from a b** in Scottsdale, that he - 19 - 1 2 3 4 5 6 loved his brother, and that he loved his family. Given the content of the calls preserved, the tenor of the calls during which Defendant pressured Womble to secure his release or “it’s on you,” the timing of the calls introduced compared to those that were destroyed, and the fact that Defendant attempted to conceal the calls and admonished parties to the calls “don’t say nothing crazy on this phone,” suggests that he, too, believed the calls to be potentially incriminating. The Court finds that trial counsel had no way to demonstrate either the “material and exculpatory” nature of the alleged conversations or the bad faith of the police. 7 8 9 10 11 12 13 14 15 Trial counsel filed an unsuccessful motion to suppress the 27 calls and raised the related Willits issue again in a Renewed Motion for Mistrial. However, as trial counsel accurately recognized, any claim as to the content of the phone calls is purely speculative. . . . Defendant claims that trial counsel should have briefed, argued and advanced the argument that the State had a clear obligation to preserve exculpatory evidence in its possession. However, because there is no evidence that the lost calls were either exculpatory or exonerating, the State had no obligation to preserve them. Therefore, trial counsel’s performance was not deficient as counsel pursued the claim and preserved the issue for appeal. (Id. at 7) (citations and footnote omitted). 16 In Claim 2, Speer alleges that counsel had notice of the calls and “were ineffective 17 in failing to seek out, review, and preserve the recordings of the 31 destroyed phone calls.” 18 19 20 21 22 23 24 25 26 27 28 (Doc. 13 at 64.) The PCR court rejected this claim: Given the content and context of the calls that were preserved, trial counsel’s actions were not unreasonable. Trial counsel would be justified in concluding that the additional tapes, which were eventually destroyed, would also have contained Defendant’s self-serving professions of love and actions taken for family members, made amidst attempts to secure his own ends (bail to secure his release from jail, the victim’s non-attendance at court to secure dismissal of the criminal action, and ultimately the murder), and would not be helpful, either in the case-in-chief or as mitigation. (ME 5/20/15 at 8.) In Claim 3, Speer alleges that trial counsel performed ineffectively in seeking discovery of the recorded phone calls. (Doc. 13 at 69.) He cites counsel’s failure to join Womble’s discovery motion, failure to refute the prosecutor’s arguments that she had - 20 - 1 fulfilled her discovery obligations, and failure to establish that there were 58 total calls and 2 that some of the unpreserved calls “almost certainly contained mitigation evidence.” (Doc. 3 13 at 69–70.) 4 The PCR court denied the claim, finding it “not a cognizable PCR claim under Rule 5 32.” (ME 5/20/15 at 8.) The court also noted that the Arizona Supreme Court, in co- 6 defendant Womble’s case, “found that because the State produced all calls taped by the 7 detectives and disclosed a list of the phone calls they reviewed but did not preserve, they 8 complied with Rule 15.1(b)(2).” (Id.) (citing State v. Womble, 225 Ariz. 91, 97, 235 P.3d 9 244, 250 n.5 (2010)). The court concluded that because the discovery claim was meritless, 10 counsel did not perform deficiently by failing to raise it and Speer was not prejudiced. (Id. 11 at 9.) 12 The PCR court’s decisions were neither contrary to nor unreasonable applications 13 of clearly established federal law, nor were they based on unreasonable factual 14 determinations. 15 With respect to Claim 1, counsel did not perform ineffectively by failing to argue 16 that the prosecutor violated her obligations under Kyles. As the PCR court explained, the 17 prosecutor’s duty under Kyles is to learn of “favorable evidence.” 514 U.S. at 437 (citing 18 Brady, 373 U.S. at 87, and United States v. Bagley, 473 U.S. 667, 675 (1985)). “Favorable 19 evidence” is evidence that “could reasonably be taken to put the whole case in such a 20 different light as to undermine confidence in the verdict.” Id. at 435. As already discussed, 21 the destroyed tapes constituted potentially useful evidence under Youngblood and 22 Trombetta, but not favorable or material evidence under Brady and Kyles. See Fisher, 540 23 U.S. at 548. 24 There is a second reason counsel did not perform ineffectively by failing to cite 25 Kyles in their motion to suppress. Counsel did argue, citing State v. Tucker, 157 Ariz. 433, 26 438, 759 P.2d 579, 584 (1988), that “due process requires that the State ‘disclose 27 exculpatory evidence that is material on the issue of guilt or punishment.’” (EIR 195 at 6.) 28 - 21 - 1 Tucker, in turn, cites Brady. 157 Ariz. at 438, 759 P.2d at 584. Having cited cases that rely 2 on Brady, counsel did not perform ineffectively in failing to cite Kyles as well. 3 With respect to Claim 2, as the PCR court noted, based on the content of the 27 calls 4 that were preserved, counsel did not perform ineffectively in failing to preserve the 31 5 recordings that were destroyed. In particular, Speer cannot meet his burden of showing he 6 was prejudiced by counsel’s failure to preserve the tapes. 7 Finally, with respect to Claim 3, the PCR court correctly noted that in Womble’s 8 case, based on the same facts, the Arizona Supreme Court found there was no Rule 15 9 violation. Because there was no discovery violation, counsel cannot be faulted for failing 10 to litigate the issue. See Gonzalez v. Knowles, 515 F.3d 1006, 1016 (9th Cir. 2008) 11 (“[C]ounsel cannot be deemed ineffective for failing to raise [a] meritless claim.”); Jones 12 v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (“It should be obvious that the failure of an 13 attorney to raise a meritless claim is not prejudicial.”); Rupe v. Wood, 93 F.3d 1434, 1445 14 (9th Cir. 1996) (explaining that “the failure to take a futile action can never be deficient 15 performance”); James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (“Counsel’s failure to make 16 a futile motion does not constitute ineffective assistance of counsel.”); Boag v. Raines, 769 17 F.2d 1341, 1344 (9th Cir. 1985) (“Failure to raise a meritless argument does not constitute 18 ineffective assistance.”). 19 Accordingly, with respect to Claims 1, 2, and 3, “there is [a] reasonable argument 20 that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105. The 21 claims fail to satisfy the doubly deferential standard that governs ineffective assistance of 22 counsel claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S. at 15. They 23 are therefore denied. 24 Claims 4 and 9: 25 In Claim 9, Speer alleges that his due process rights were violated when the trial 26 court failed to give a Willits instruction. (Doc. 13 at 91.) In Claim 4, he alleges that trial 27 counsel were ineffective for failing to support their request for a Willits instruction with 28 “adequate legal authority.” (Id. at 57.) - 22 - 1 Counsel twice requested a Willits instruction: in their proposed jury instructions, 2 which included the standard instruction for lost or destroyed evidence with a citation to 3 Willits, and later in a motion and supporting memorandum. (EIR 499, 535.) 4 Claim 9 5 On direct appeal, Speer argued that the failure to provide a Willits instruction 6 violated his due process rights under the Arizona constitution and “the Fifth and Fourteenth 7 Amendments to the United States Constitution.” (Opening Br. at 19.) Respondents contend 8 that this “drive-by” citation to federal authority is not sufficient to fairly present a federal 9 claim. (Doc. 16 at 44–45.) 10 To fairly present a claim, a petitioner “must make the federal basis of the claim 11 explicit either by specifying particular provisions of the federal Constitution or statutes, or 12 by citing to federal case law.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005). 13 Here, Speer satisfied that requirement by “relat[ing] his claim to the Due Process Clause 14 of the U.S. Constitution” and “cit[ing] the Fourteenth Amendment.” Castillo v. McFadden, 15 399 F.3d 993, 999 (9th Cir. 2005). 16 The Arizona Supreme Court denied the claim, holding that the trial court’s refusal 17 to provide the instruction was not an abuse of discretion because “Speer did not 18 demonstrate that the erased tapes might have exonerated him or even mitigated his 19 participation in the murder plot.” Speer, 221 Ariz. at 457, 212 P.3d at 795. Instead, as 20 already noted, the court concluded that there was “no logical inference that these nine 21 [calls] had a tendency to exonerate.” Id. 22 Speer also raised the claim during his PCR proceedings, alleging that the failure to 23 provide a Willits instruction denied him “a fair trial” and was “not only a state due process 24 violation, but also a federal due process violation under the Sixth and Fourteenth 25 Amendments to the U.S. Constitution.” (PCR Pet. 10/25/14 at 31, 34.) The court found the 26 claim precluded under Rules 32.6(c) and 32.2(a) because it had been raised and denied on 27 direct appeal. (ME 5/20/15 at 10.) The court alternatively found the claim meritless because 28 Speer had not established that the destroyed calls had a “tendency to exonerate him.” (Id.) - 23 - 1 The court also determined that Speer was not harmed because trial counsel were allowed 2 to argue to the jury that the State had failed to preserve relevant evidence. (Id.) 3 “To be entitled to a Willits instruction, a defendant must prove that (1) the state 4 failed to preserve material and reasonably accessible evidence that could have had a 5 tendency to exonerate the accused, and (2) there was resulting prejudice.” State v. Smith, 6 158 Ariz. 222, 227, 762 P.2d 509, 514 (1988). To show that evidence had a tendency to 7 exonerate, “the defendant must do more than simply speculate about how the evidence 8 might have been helpful.” State v. Glissendorf, 235 Ariz. 147, 150, 329 P.3d 1049, 1052 9 (2014); see State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995) (“A Willits 10 instruction is not given merely because a more exhaustive investigation could have been 11 made”). Rather, “there must be a real likelihood that the evidence would have had 12 evidentiary value.” Id. However, the tendency to exonerate requirement “does not mean 13 the evidence must have had the potential to completely absolve the defendant.” Id. “[A] 14 defendant is entitled to an instruction if he can demonstrate that the lost evidence would 15 have been material and potentially useful to a defense theory supported by the evidence.” 16 Id. (internal quotations and citations omitted). 17 Habeas review of a claim based on a failure to give a jury instruction is limited to a 18 determination of whether that failure so infected the entire proceedings that the defendant 19 was deprived of his right to a fair trial. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th 20 Cir. 1988). Because the omission of an instruction is less likely to be prejudicial than a 21 misstatement of the law, a habeas petitioner whose claim involves a failure to give a 22 particular instruction bears an “especially heavy” burden. Henderson v. Kibbe, 431 U.S. 23 145, 155 (1977); see Simmons v. Arizona, No. CV-12-00435-TUC-JGZ, 2015 WL 24 1405431, at *8 (D. Ariz. Mar. 26, 2015). 25 Speer has not met that burden. The failure to provide a Willits instruction did not 26 violate his right to a fair trial. See United States v. Dee, 319 F.App’x 578, 582 (9th Cir. 27 2009) (finding no error in court’s failure to give adverse inference instruction where there 28 was no evidence of bad faith or prejudice and “counsel was allowed to argue that the jury - 24 - 1 should draw an adverse inference from the fact that some evidence was not collected or 2 was not preserved, which he did during his closing argument”) (citing United States v. 3 Artero, 121 F.3d 1256, 1259 (9th Cir. 1997)). As the PCR court noted, counsel were 4 permitted to raise the issue of the destroyed phone calls in their closing argument. Counsel 5 stated “we don’t know what was on those calls,” argued they “should have been provided 6 an opportunity to see . . . what might have been revealed,” suggested the calls could have 7 contained exculpatory information, and questioned the detectives’ motives for allowing the 8 tapes to be destroyed. (RT 1/17/07 at 143–45.) 9 The state court decisions denying this claim were neither contrary to nor an 10 unreasonable application of clearly-established federal law, nor were they based on an 11 unreasonable determination of the facts. 12 Claim 4 13 Speer alleges that counsel performed ineffectively by failing to support their motion 14 for a Willits instruction with “proper case law.” (Doc. 13 at 58.) The PCR court denied the 15 claim, finding that counsel did not perform deficiently under Strickland. The court 16 explained: 17 18 19 20 Trial counsel requested a Willits instruction, supported by a separately-filed Defense Memo in Support of Motion for Willits Instruction . . . , which this Court denied. Trial counsel raised the issue again in Defendant’s Renewed Motion for Mistrial. . . . This Court’s ruling denying a Willits instruction was upheld by the Supreme Court. 21 (ME 5/20/15 at 10.) This decision was neither contrary to nor an unreasonable application 22 of clearly established federal law. 23 Speer faults counsel for not citing Willis itself and, contending that the trial court 24 applied the wrong standard in denying the instruction, for failing to cite other cases holding 25 that “a defendant need not prove that the evidence has absolute, exculpatory value, evident 26 before its destruction.” (Doc. 13 at 59.) For example, according to Speer, counsel should 27 have cited State v. Hunter, which held that to be entitled to a Willits instruction “[a]n 28 accused need not prove that evidence destroyed by the state would have conclusively - 25 - 1 established a defense. An accused need only show that if the evidence had not been 2 destroyed, it might have tended to exonerate him.” 136 Ariz. 45, 51, 664 P.2d 195, 201 3 (1983) (additional quotation omitted). 4 This criticism is unpersuasive. First, counsel cannot be faulted for failing to cite 5 Willits when they explicitly asked, twice, for a Willits instruction. (EIR 499, 535.) Next, 6 counsel did cite the correct standard when they argued, citing State v. Reffitt, 145 Ariz. 7 452, 461, 702 P.2d 681, 690 (1985), that a defendant is entitled to a Willits instruction 8 where “the State failed to preserve material evidence that was accessible and might have 9 tended to exonerate him.” (EIR 535 at 1.) Counsel also cited Hunter, one of the cases Speer 10 faults them for not citing. (Id. at 2.) 11 Speer also criticizes counsel for not citing State v. Lopez, 163 Ariz. 108, 113, 786 12 P.2d 969, 964 (1990), which used the phrase “potentially helpful” to describe evidence 13 subject to a Willits instruction. (Doc. 13 at 59–60.) The Arizona Supreme Court has 14 explained, however, that it has “used the phrase ‘potentially helpful’ interchangeably with 15 ‘tendency to exonerate.’” Glissendorf, 235 Ariz. at 150, 329 P.3d at 1052 (citing Lopez, 16 163 Ariz. at 113, 786 P.2d at 964). 17 Finally, as the PCR court noted, the Arizona Supreme Court found that Speer was 18 not entitled to a Willits instruction. Counsel cannot be faulted for attempting to secure relief 19 to which Speer was not entitled. Under these circumstances, even if trial counsel had not 20 sought a Willits instruction, their performance would not have been constitutionally 21 ineffective. See Garduno v. Lewis, 365 F.App’x 820, 822 (9th Cir. 2010) (“Because the 22 underlying arguments [concerning the jury instruction] lack merit, counsel was not 23 ineffective for failing to raise them.”) (citing Boag, 769 F.2d at 1344). 24 Claim 4 does not satisfy the doubly deferential standard that governs ineffective 25 assistance of counsel claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S. 26 at 15. 27 Claim 13 (in part): 28 Speer alleges that the prosecutor committed misconduct and violated Brady by - 26 - 1 failing to disclose all 58 of the recorded phone calls, including the 22 recordings that were 2 destroyed without being reviewed. (Id. at 113.) In his PCR petition Speer alleged the 3 prosecutor violated Rule 15.1 and Brady by failing to disclose all the tapes. (PCR Pet. at 4 25–30.) The PCR court denied the claim as waived and precluded under Rule 32.2(a)(3) 5 because it could have been raised on appeal. (ME 5/20/15 at 8.) Because this is an 6 independent and adequate state procedural bar, Stewart v. Smith, 536 U.S. 856, 860 (2002) 7 (per curiam), the claim is procedurally defaulted. The PCR court’s alternative merits ruling 8 does not nullify the default. Harris v. Reed, 489 U.S. 255, 264 n.10 (1989). 9 10 Speer argues that its default is excused by the ineffective assistance of appellate and PCR counsel. (See Doc. 13 at 119.) He is incorrect. 11 First, ineffective assistance of appellate counsel may be used as cause to excuse a 12 procedural default only where the particular ineffective assistance allegation was first 13 exhausted in state court as an independent constitutional claim. See Edwards v. Carpenter, 14 529 U.S. 446, 453 (2000); Murray v. Carrier, 477 U.S. 478, 489–90 (1986). Speer did not 15 raise such a claim of ineffective assistance of appellate counsel. Second, under Martinez 16 the ineffective assistance of PCR counsel can excuse the default only of claims of 17 ineffective assistance of trial counsel. See Hunton, 732 F.3d at 1126–27 (finding Martinez 18 does not excuse default of Brady claim); see also Martinez (Ernesto), 926 F.3d at 1225; 19 Pizzuto, 783 F.3d at 1177. Accordingly, this aspect of Claim 13 remains defaulted and 20 barred from federal review. 21 Conclusion 22 Speer has not met his burden of showing the police acted in bad faith in allowing 23 the destruction of the tapes or that the State violated Brady by failing to disclose the tapes. 24 He has not met his burden under Strickland of showing that counsel performed 25 ineffectively in litigating the issues surrounding the recordings, including the request for a 26 Willits instruction. Finally, he has failed to meet his burden under AEDPA of showing 27 “there was no reasonable basis for the state court to deny relief” on these claims, which are 28 therefore denied. See Richter, 562 U.S. at 98. - 27 - 1 B. 2 Speer raises several additional claims alleging that counsel performed ineffectively 3 during the guilt phase of trial. He also alleges that appellate counsel performed 4 ineffectively by failing to raise two of these issues. The Court will consider the underlying 5 claims along with the related ineffective assistance claims. The claims are all meritless. Ineffective Assistance of Counsel: Guilt Phase Issues 6 Claims 5, 10, and 26 (in part): 7 In Claim 5, Speer alleges trial counsel performed ineffectively in cross-examining 8 Det. Olson. (Doc. 13 at 61.) Specifically, he contends that counsel should have used 9 Olson’s answers in a deposition in a civil suit arising out of a wrongful conviction in a prior 10 murder case. (Id. at 62.) In Claim 10, Speer alleges that his confrontation rights were 11 violated by the limitations imposed by the trial court on counsel’s cross-examination of 12 Olson. (Id. at 97.) In Claim 26, he alleges that appellate counsel performed ineffectively 13 by failing to raise the confrontation claim. (Id. at 248.) 14 Additional background 15 On September 14, 2006, Speer’s counsel moved for production of Det. Olson’s 16 internal affairs records. (EIR 310.) The request was based on Olson’s involvement in the 17 Kim Ancona murder case, for which Ray Krone was erroneously convicted and sentenced 18 to death. (Id.) The motion cited what counsel characterized as Olson’s erroneous claim, 19 made during a television appearance, that detectives had found sheets with Ancona’s blood 20 in the trunk of Krone’s car. (Id.) After his exoneration, Krone filed a civil suit. (Id.) 21 The trial court found no disciplinary actions in Det. Olson’s records. (RT 12/13/06, 22 a.m., at 11.) The prosecutor asked the court to preclude any questioning about the Krone 23 case. (Id.) The defense wanted to cross-examine Olson about mistakes he had made in the 24 case and his failure to conduct a complete investigation. (Id.) The court deferred its ruling. 25 (Id. at 13.) 26 On January 8, 2007, Speer filed a motion to permit cross-examination of Det. Olson 27 about his involvement in the Krone case. (EIR 501.) Counsel sought to impeach Olson with 28 answers he gave in a deposition in the civil suit. (Id.) Counsel argued that while Olson - 28 - 1 denied making errors in the Krone case, his deposition answers acknowledged flaws in the 2 investigation. (Id. at 2–3.) Counsel cited Rule 608 of the Arizona Rules of Evidence, which 3 permits inquiry into specific instances of conduct for purposes of attacking a witness’s 4 character for truthfulness or untruthfulness. (Id. at 3.) They also argued that they were 5 entitled to cross-examine Det. Olson about the Krone case to prove bias, prejudice, and 6 motive—namely, Olson’s desire to vindicate his reputation after the Krone case by 7 securing a conviction against Speer. (Id. at 2–4.) Finally, they argued that such evidence 8 was admissible under Rule 404(b) to show motive and that Det. Olson had “knowledge of 9 how an investigation should and should not be conducted.” (Id. at 5.) 10 The court, trying to “strike a balance,” ruled as follows: 11 Detective Olson may be questioned about comments he made about investigation techniques in general. . . . [I]f you want to ask him about comments he’s previously made without identifying cases, you can. He can also be questioned about any acknowledgment he may have made that detectives, like all of us, are human and have made mistakes before, even mistakes in previous investigations. But the Krone case can’t be mentioned. Facts specific to that case can’t be mentioned. The outcome of that case can’t be discussed. TV segments can’t be introduced, and transcripts from previous testimony don’t come in either. 12 13 14 15 16 17 18 19 20 21 22 23 (RT 1/9/07 at 17.) The court found that mistakes Det. Olson made in the Krone case would not be probative for truthfulness in the Speer case and therefore Rule 608 did not apply. (Id. at 18.) The court found that Rule 404(B) did not apply because the other acts Speer sought to prove would show Olson’s character and that he was acting in conformity therewith. (Id.) Instead, the court explained, defense counsel would be permitted to examine Olson in general as to mistakes he may have made in other cases. (Id. at 19.) While counsel would 24 not be allowed to use the transcript of Det. Olson’s civil deposition, they could ask if he 25 had admitted making mistakes in a prior deposition. They would “be stuck with his 26 27 28 answer,” however. (Id.) Speer contends that counsel performed ineffectively because they “asked no questions whatsoever about the many mistakes they knew existed in the Krone case, which - 29 - 1 they could have done without naming the case itself.” (Doc. 13 at 63.) He argues that 2 “[e]ven within the limitations of the court’s demands, the deposition provided powerful 3 fodder to show that Olson was simply not a thorough, detail-oriented detective”—“a line 4 of cross-examination [that] fit precisely with Speer’s theory that Olson committed 5 investigational errors in failing to properly preserve the phone call evidence.” (Id. at 65.) 6 Speer argues that, given the central role Det. Olson played in investigating the Soto murder, 7 he was prejudiced by the omission of evidence of the detective’s “shoddy investigative 8 practices” in the Krone case. (Id. at 66.) 9 Speer raised this claim during the PCR proceedings. (PCR Pet. at 42–50.) The court 10 analyzed the claim under “the strictures of Strickland,” finding that counsel’s performance 11 was neither deficient nor prejudicial. (ME 5/20/15 at 12.) The court first stated that it would 12 not “second-guess the strategic decisions of trial counsel.” (Id. at 13.) The court then found 13 that “[t]he record supports the conclusion that counsel made a strategic decision not to 14 cross-examine Detective Olson about his investigative techniques.” (Id.) The court 15 continued: 20 In support of this conclusion, the Court observes that trial counsel investigated the Krone matter and Detective Olson’s role. Counsel filed and argued a motion to have the specific investigation mentioned, although counsel did not prevail and was properly limited to a generic crossexamination as to his methods in connection with “other” cases. Once the parameters have been identified, the extent of cross-examination is within the tactical decisions afforded trial counsel. 21 (Id.) The court then determined that Speer “suffered no prejudice” because counsel were 22 “permitted to argue . . . the shoddy investigation and the detective’s one-sided 23 determination as to which tapes to preserve.” (Id.) The court explained: 16 17 18 19 24 25 26 27 28 To that end, trial counsel focused on the things Detective Olson failed to do, such as failing to obtain fingerprint samples from people who were in the victims’ home; failing to take shoe sole impressions from people he believed were at the crime scene in order to compare them to footprints found at the scene; failing to collect gunshot residue from anyone inside the victims’ home; failing to search for human hair samples at the murder scene; and Detective Olson was forced to admit to every recorded jail call he failed to - 30 - 1 2 listen to, which reinforced the argument that he was not a thorough investigator. 3 (Id.) Finally, the court determined that the strength of the evidence against Speer precluded 4 a finding that he was prejudiced by counsel’s cross-examination of Det. Olson: 5 6 7 8 9 [I]t is improbable that the jury would have evaluated the existing tapes differently had they been informed of the detective’s role in the Krone case. Had there been evidence of a shoddy investigation and/or untruthfulness by the detective connected with a separate case, it is the Court’s view that the jury still would have focused most of its attention on the validity of the evidence, the tapes themselves. The jail tapes essentially “spoke for themselves.” ... 10 11 12 13 14 15 Given the contents of the tapes coupled with corroborating testimony of witnesses, Defendant’s motivation and the theft/burglary police report found in Defendant’s cell that identified the victims, and co-defendant Womble’s palm print on the window screen to the victims’ apartment, there is no reasonable probability that the jury would have had a reasonable doubt respecting Defendant’s guilt. (Id. at 13–14.) 16 Analysis 17 This decision was neither contrary to nor an unreasonable application of clearly 18 established federal law. First, Speer had not rebutted the “strong presumption” that counsel 19 limited his cross-examination of Det. Olson “for tactical reasons rather than through sheer 20 neglect.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003); Cheney v. Washington, 614 F.3d 21 987, 996 (9th Cir. 2010); see Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002) 22 (“Decisions about ‘whether to engage in cross-examination, and if so to what extent and in 23 what manner, are . . . strategic in nature’ and generally will not support an ineffective 24 assistance claim.”) (additional quotation omitted). It was not unreasonable for counsel to 25 focus on the alleged deficiencies in Det. Olson’s investigation in Speer’s case rather than 26 pursuing a “generic” cross-examination about his investigation in other cases. 27 As the PCR court noted, counsel cross-examined Olson about his failure to take 28 fingerprint samples and shoeprint impressions; failure to collect gunshot residue; and - 31 - 1 failure to search for hair samples. (RT 12/11/06 at 44–80.) Counsel also emphasized Det. 2 Olson’s failure to listen to and preserve numerous jail calls. (RT 1/10/07 at 28–113.) All 3 this, as the PCR court found, “reinforced the argument that he was not a thorough 4 investigator.” (ME 5/20/15 at 13.) Having made that argument, counsel did not perform 5 deficiently, or to Speer’s prejudice, by failing to pose questions about prior investigations. 6 See Floyd v. Filson, 949 F.3d 1128, 1143–44 (9th Cir.), cert. denied sub nom. Floyd v. 7 Gittere, 141 S. Ct. 660 (2020) (“In prior cases in which we and other circuits have 8 recognized constitutionally deficient cross-examination, there were glaring failures to ask 9 even basic questions, not—as here—a strategic choice between one means of undermining 10 the witness and another.”). 11 Finally, the PCR court reasonably determined that the strength of the evidence 12 against Speer foreclosed a finding of prejudice. The jury heard Speer’s phone calls to Brian 13 Womble that laid out the plot to kill the Sotos. Cross-examining Det. Olson about 14 shortcomings in prior investigations would not have countered this key evidence of Speer’s 15 guilt. Moreover, the gravamen of counsel’s examination was that Olson’s investigation was 16 faulty precisely with respect to Speer’s jailhouse calls. 17 Claim 5 is denied. It fails to satisfy the doubly deferential standard that governs 18 ineffective assistance claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S. 19 at 15. 20 Speer raised Claim 10 in his PCR petition, alleging a violation of his confrontation 21 rights based on the trial court’s limitations on the cross-examination of Det. Olson. (PCR 22 Pet. at 37–41.) The court found the claim waived and precluded because it could have been 23 raised on direct appeal. (ME 5/20/15 at 11.) 24 Speer argues that the claim’s default is excused by the ineffective assistance of 25 appellate counsel. (Doc. 13 at 98, 100.) Ineffective assistance of appellate counsel may be 26 used as cause to excuse a procedural default where the particular ineffective assistance 27 allegation was first exhausted in state court as an independent constitutional claim. See 28 Carpenter, 529 U.S. at 453; Carrier, 477 U.S. at 489–90. - 32 - 1 In his PCR petition Speer alleged that appellate counsel performed ineffectively by 2 failing to raise a claim challenging the trial court’s ruling on Det. Olson’s cross- 3 examination. (PCR Pet. at 41.) Speer did not, however, properly exhaust the claim by 4 including it in his Petition for Review. (See Doc 16-1, Ex. D.) Boerckel, 526 U.S. at 848 5 (explaining that to exhaust state remedies, the petitioner must “fairly present” his claims to 6 the state’s highest court in a procedurally appropriate manner); Swoopes v. Sublett, 196 7 F.3d 1008 (9th Cir. 1999) (per curiam) (holding that capital prisoners must seek review in 8 Arizona Supreme Court to exhaust claims). Therefore, he did not fairly present the claim 9 to the Arizona Supreme Court. Speer may not exhaust the claim now because he does not 10 have an available state court remedy. Because the claim of ineffective assistance of 11 appellate counsel was not exhausted, the default of Claim 10 is not excused and the claim 12 will be denied as barred from federal review. 13 In Claim 26 of his habeas petition Speer alleges ineffective assistance of appellate 14 counsel. (Doc. 13 at 248.) As just stated, he raised this allegation in his PCR petition, where 15 it was denied as meritless (ME 5/20/15 at 11–12),but did not include the claim in his 16 petition for review. Its default is not excused, see Davila, 137 S. Ct. at 2065, so the claim 17 is barred from federal review. 18 Claims 10 and 26 are also meritless. In Claim 10 Speer alleges that his right to 19 confront Det. Olson was violated by the trial court’s ruling that counsel could not question 20 him directly about the Krone case. (Doc. 13 at 97.) 21 “[T]he Confrontation Clause is generally satisfied when the defense is given a full 22 and fair opportunity to . . . expose [testimonial] infirmities through cross-examination.” 23 Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (per curiam). “To state a violation of the 24 Confrontation Clause, a defendant must show ‘that he was prohibited from engaging in 25 otherwise appropriate cross-examination designed to show a prototypical form of bias on 26 the part of the witness.’” Sully v Ayers, 725 F.3d 1057, 1074 (9th Cir. 2013) (quoting 27 Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)). The Supreme Court “has never held 28 - 33 - 1 that the Confrontation Clause entitles a criminal defendant to introduce extrinsic evidence 2 for impeachment purposes.” Nevada v. Jackson, 569 U.S. 505, 512 (2013). 3 The trial court’s ruling prevented Speer’s counsel only from using the transcript 4 from Krone’s civil lawsuit and from specifically referring to the Krone case. The court’s 5 prohibition on the use of this extrinsic evidence did not violate Speer’s confrontation rights. 6 Id.; see, e.g., Murray v. Schriro, No. CV-99-1812-PHX-DGC, 2008 WL 1701404, at *20– 7 21 (D. Ariz. April 10, 2008) (finding petitioner not entitled to relief on confrontation claim 8 where trial court prohibited impeachment of detective using transcript from previous trial), 9 aff’d, 745 F.3d 984 (9th Cir. 2014); see Bright v. Shimoda, 819 F.2d 227, 229 (9th Cir. 10 1987) (federal habeas court will rarely find a constitutional violation if the defendant was 11 allowed to cross examine a witness at length and was restricted solely on a collateral 12 matter). For these reasons Claim 10 is meritless. 13 Finally, Claim 26, alleging ineffective assistance of appellate counsel, is meritless. 14 The PCR court denied the claim, explaining that the Arizona Supreme Court would have 15 rejected the claim pursuant to State v. Murray, 184 Ariz. 9, 906 P.2d 542 (1995). (ME 16 5/20/15 at 11.) As the PCR court noted, in Murray the Arizona Supreme Court set 17 “parameters for impeachment of witnesses using evidence of specific instances of 18 conduct.” (Id., n.3.) Under those parameters, which precluded the use of extrinsic evidence, 19 exclusion of the Krone transcript was not an abuse of discretion. See Murray, 184 Ariz. at 20 30–31, 906 P.2d at 563–64. Appellate counsel did not perform ineffectively by failing to 21 raise this meritless confrontation claim. See Jones v. Smith, 231 F.3d 1227, 1239 n.8 (9th 22 Cir. 2000) (finding no prejudice when appellate counsel fails to raise an issue on direct 23 appeal that is not grounds for reversal); Miller v. Kenney, 882 F.2d 1428, 1434 (9th Cir. 24 1989) (explaining that appellate counsel remains above an objective standard of 25 competence and does not cause prejudice when he declines to raise a weak issue on appeal). 26 Claims 6, 26 (in part): 27 Speer alleges that defense counsel performed ineffectively by failing to object to the 28 court’s accomplice instruction and failing to offer a correct instruction. (Doc. 13 at 68.) He - 34 - 1 argues that the instruction provided by the court, by referring to “an” offense rather than 2 “the” offense, allowed the jury to convict him if it found he was an accomplice in any of 3 the charged offenses, not just the murder. (Id.) He also alleges that appellate counsel 4 performed ineffectively by failing to raise a claim challenging the instruction. (Id. at 247.) 5 Speer raised these claims during his PCR proceedings and the court found them meritless. 6 The trial court provided the following “accomplice” instruction: 7 A person is criminally accountable for the conduct of another if: One, acting with the culpable mental state sufficient for the commission of the offense, such person causes another person to engage in such conduct; or, two, the person is an accomplice of the other person in the commission of an offense. 8 9 10 11 “Accomplice” means a person who, with the intent to promote or facilitate the commission of an offense, does any of the following: 12 13 14 15 16 17 18 19 20 21 1. Solicits or commands another person to commit an offense; or 2. Aids, counsels, agrees to aid, or attempts to aid another person in planning or committing an offense; or 3. Provides means or opportunity to another person to commit an offense. A defendant is criminally accountable for the conduct of another if the defendant is an accomplice of such other person in the commission of the offense. This criminal liability extends only to offenses that the defendant intended to aid, solicit, facilitate, or command. (RT 1/17/07 at 23 (emphasis added); see also EIR 534 at 18.) 22 In denying Speer’s claim that counsel performed ineffectively in failing to challenge 23 the instruction, the PCR court relied on State v. Rojo-Valenzuela, 235 Ariz. 617, 334 P.3d 24 1276 (Ct. App. 2014), aff’d, 237 Ariz. 448, 352 P.3d 917 (2015). There the court of appeals 25 rejected the defendant’s argument that the attempted murder jury instruction provided by 26 the trial court was impermissibly vague and would allow him to be convicted of attempted 27 first-degree murder if the jury found that he had attempted to commit any crime. Id. at 622, 28 334 P.3d at 1281. The appellate court held that “no reasonable juror would have interpreted - 35 - 1 the court’s instruction on attempted first-degree murder as permitting a guilty verdict based 2 on a finding that he had been attempting to commit another crime, given the content of the 3 instruction and its juxtaposition with an instruction on the substantive crime of first-degree 4 murder.” Id. at 623, 334 P.3d at 1282. 5 The PCR court, citing Rojo-Valenzuela, explained that jury instructions must be 6 considered “as a whole.” (ME 5/20/15 at 22.) The court noted it had instructed the jury that 7 in order to find Speer guilty of the charged offenses, it needed to find Womble guilty of 8 the same specific charges. (Id.) The court then noted that the accomplice instruction 9 immediately preceded the first-degree murder instruction, explaining that “the placement 10 indicates First Degree Murder as the basis of accomplice liability.” (Id.) Finally, the court 11 noted that the last paragraph of the instruction did refer to “the” offense and stated that 12 Speer could be found guilty only of crimes he “intended to aid, solicit, facilitate, or 13 command.” (Id.) The court concluded that the “language focuses the jury’s attention on the 14 particular offense under consideration”; that jurors are “presumed to follow the court’s 15 instructions”; and that “in this case, it is mere speculation that they did not.” (Id.) 16 Accordingly, the court explained, “there [was] not a reasonable likelihood that the jury 17 would have concluded that this instruction, read in the context of the other instructions, 18 would have authorized a First Degree Murder conviction if Defendant were only an 19 accomplice to burglary or conspiracy.” (Id. at 23.) 20 Based on this analysis, the court ruled that Speer’s counsel did not perform 21 ineffectively by failing to object to the instruction as given or by failing to propose that the 22 court use “the offense” instead of “an offense” in the accomplice instruction. (Id.) The 23 court explained that neither trial nor appellate counsel was ineffective for failing to 24 preserve or raise such “meritless issues.” (Id.) 25 The PCR court’s ruling does not entitle Speer to habeas relief. First, Speer cites no 26 authority holding that the instruction as given was incorrect. Contrary to Speer’s argument 27 (Doc. 13 at 60), the final paragraph of the accomplice instruction explained that the 28 principal and the accomplice must have the same intent for the commission of the specific - 36 - 1 crime. Neither trial nor appellate counsel performed deficiently by failing to object to a 2 correct instruction. See Rupe, 93 F.3d at 1445; James, 24 F.3d at 27. 3 Moreover, reading the instructions as a whole, including the final paragraph of the 4 accomplice instruction and the first-degree murder instruction which immediately 5 followed, demonstrates there was no “‘reasonable likelihood’ that the jury applied the 6 instruction in a way that relieved the State of its burden of proving every element of the 7 crime beyond a reasonable doubt.” Waddington v. Sarausad, 555 U.S. 179, 190–91 (2009) 8 (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)); see Rojo–Valenzuela, 235 Ariz. at 9 623, 334 P.3d at 1282 (citing “the content of the instruction and its juxtaposition with an 10 instruction on the substantive crime of first-degree murder”). 11 Claims 6 and 26 (in part) do not satisfy the doubly deferential standard governing 12 ineffective assistance claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S. 13 at 15. 14 Claim 7: 15 Speer alleges that trial counsel performed ineffectively by failing to move to vacate 16 his conviction and sentence after the same prosecutor presented a conflicting theory of the 17 crime at Womble’s trial. (Doc. 13 at 74.) Speer did not raise this claim in state court. He 18 argues that the default of the claim is excused by the ineffective assistance of appellate and 19 PCR counsel. In Arizona, claims of ineffective assistance of trial counsel cannot be brought 20 on direct appeal, see Runningeagle, 825 F.3d at 980–82, so appellate counsel did not 21 perform ineffectively by failing to raise this claim. Because the claim is without merit, PCR 22 counsel did not perform ineffectively by failing to raise it. 23 Speer contends that the prosecutor committed misconduct by arguing opposing 24 theories of the crime in the Speer and Womble trials. According to Speer, after convincing 25 the jury in his trial that he was the “mastermind who manipulated his vulnerable younger 26 brother into committing the crime,” the prosecutor took the opposite position in Brian 27 Womble’s trial, arguing that it was Brian’s idea to murder the Sotos and that Speer had no 28 influence over his brother’s behavior. (Doc. 13 at 75–78.) Speer alleges that counsel should - 37 - 1 have been aware of the prosecutor’s conduct in the Brian Womble case and cited it as 2 grounds to vacate his conviction under Rule 24.2(a) of the Arizona Rules of Criminal 3 Procedure.14 Under Rule 24.2(a), a court “must vacate a judgment if it finds that . . . (2) 4 newly discovered material facts exist satisfying the standards in Rule 32.1(e); or (3) the 5 conviction was obtained in violation of the United States or Arizona constitutions.”15 (Id. 6 at 78–80.) Speer contends that there was a reasonable probability that such a motion would 7 have been granted. (Id. at 80–81.) That argument is not persuasive. 8 Trial counsel did not perform ineffectively because it was not impermissible for the 9 prosecutor to argue different theories with respect to the co-defendants. The cases Speer 10 cites do not support his claim. In Bradshaw v. Stumpf, 545 U.S. 175 (2005), for example, 11 the Supreme Court reversed the Sixth Circuit’s grant of habeas relief and held that a 12 defendant’s guilty plea was not rendered unknowing, involuntary, or unintelligent simply 13 because the prosecutor first asserted that the defendant shot and killed the victim, but in 14 the trial of his co-defendant argued that the co-defendant was the shooter. Justices Thomas 15 and Scalia in their concurring opinion noted that “[the Supreme] Court has never hinted, 16 much less held, that the Due Process Clause prevents a State from prosecuting defendants 17 based on inconsistent theories.” Id. at 190 (Thomas, J., concurring). “Since then, the 18 Supreme Court has not [sic] still suggested, let alone held, that due process concerns 19 prohibit prosecutors from taking alternative or inconsistent positions.” White v. White, No. 20 CV 5:02-492-KKC, 2021 WL 4236929, at *65–66 (E.D. Ky. Sept. 16, 2021) (citing 21 Littlejohn v. Trammell, 704 F. 3d 817, 852-53 (10th Cir. 2013)); cf. Dias v. Gipson, No. C 22 12-05146 BLF (PR), 2014 WL 5035578, at *20 (N.D. Cal. Oct. 1, 2014) (“Although the 23 Ninth Circuit has made no ruling on the issue of whether prosecuting defendants based on 24 25 26 27 28 14 A motion to vacate must be filed no later than 60 days after the entry of judgment and sentence. Ariz. R. Crim. Proc. 24.2(b). Speer’s judgment was entered on May 11, 2007. Counsel therefore had until July 10, 2007, to file a motion to vacate. The prosecutor gave her closing argument in Brian Womble’s case on May 3, 2007. 15 Rule 32.1(e) provides grounds for relief where “newly discovered material facts probably exist, and those facts probably would have changed the judgment or sentence.” - 38 - 1 inconsistent theories violates due process, sister circuits have ruled that there is no clearly 2 established federal law on this issue. . . .”). 3 In Bradshaw the Supreme Court held that inconsistent positions taken by the 4 prosecution did not provide grounds to challenge the defendant’s conviction, but 5 “express[ed] no opinion on whether the prosecutor’s actions amounted to a due process 6 violation, or whether any such violation would have been prejudicial” with respect to the 7 defendant’s sentence and remanded the case to the Sixth Circuit. 545 U.S. at 187–88. 8 On remand the court concluded that the prosecution’s contention that the defendant 9 was the “triggerman” had an effect upon the death sentence imposed on him, and that “[t]o 10 allow a prosecutor to advance irreconcilable theories without adequate explanation 11 undermines confidence in the fairness and reliability of the trial and the punishment 12 imposed and thus infringes upon the petitioner’s right to due process.” The panel granted 13 habeas relief. Stumpf v. Houk, 653 F. 3d 426, 436 (6th Cir. 2011). The Sixth Circuit granted 14 rehearing en banc and vacated the panel decision. Stumpf v. Robinson, 722 F. 3d 739 (6th 15 Cir. 2013). The court held that “[a]ll that the prosecution did was to argue for two different 16 inferences from the same, unquestionably complete, evidentiary record. It left the 17 factfinder in [co-defendant] Wesley’s trial and the factfinders in Stumpf’s post-sentencing 18 proceedings to find the facts. This, without more, does not offend the Due Process Clause.” 19 Id. at 749. 20 Speer also cites Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc), 21 vacated on other grounds, 523 U.S. 538 (1998). Thompson and his codefendant, Leitch, 22 were tried separately for the rape and murder of the victim. 120 F.3d at 1055–56. The Ninth 23 Circuit found Thompson’s due process rights had been violated based on the prosecutor’s 24 use of “fundamentally inconsistent theories” at the two trials. Id. at 1056. During 25 Thompson’s trial, the prosecutor presented the testimony of two inmate informants who 26 provided the only direct evidence that Thompson had killed the victim, that the victim had 27 been raped, and that it was Thompson who had raped her. Id. These witnesses were not 28 called by the state at Leitch’s trial, which followed Thompson’s. Instead, the prosecutor - 39 - 1 called defense witnesses whose testimony he had objected to at Thompson’s trial and 2 “relied heavily on their testimony to establish Leitch’s motive for the murder.” Id. As the 3 Ninth Circuit explained, the prosecutor “asserted as the truth before Thompson’s jury the 4 story he subsequently labeled absurd and incredible in Leitch’s trial.” Id. at 1057. “By 5 doing so, the prosecutor brought his conduct squarely within an area forbidden by the 6 Supreme Court—the knowing [ ] present[ation of] false testimony.’”16 Shaw v. Terhune, 7 353 F.3d 697, 703–05 (9th Cir. 2003), opinion amended and superseded on denial of 8 reh’g, 380 F.3d 473 (9th Cir. 2004) (quoting Thompson, 120 F.3d at 1058). 9 Speer does not allege that the prosecutor knowingly presented false evidence or 10 offered factually inconsistent evidence at the two trials. He accuses the prosecutor of 11 “manipulating evidence” but his allegation of misconduct is based solely on the 12 prosecutor’s closing arguments in the two trials. (See Doc. 13 at 76–78.) The case differs 13 from Thompson, where the prosecutor relied on contradictory evidence, some of which was 14 necessarily false, in the two trials. See Shaw, 353 F.3d at 703. In Speer’s case the evidence 15 supported either theory about which co-defendant was more responsible for the attack on 16 the Sotos. In the second trial, the prosecutor acknowledged that “Paul Speer is equally to 17 blame for what happened,” but argued that “he didn’t unduly influence Brian Womble.” 18 (RT 5/3/07.)17 She cited incidents in which Brian declined to carry out requests made by 19 Speer and argued, based on the ambiguous content of the phone conversations, that 20 Womble, not Speer, had come up with “Plan B.” (Id. at 48, 61–64, 67–72.) 21 This scenario more closely tracks Shaw than Thompson. In the former case, the 22 evidence suggested that one of two defendants, Shaw or Watts, assaulted the victim. Shaw, 23 353 F.3d at 703. In the first trial, the prosecutor argued that the evidence showed Shaw 24 committed the assault. Id. In the second trial, a different prosecutor argued, based on the 25 26 27 28 16 A prosecutor’s knowing use of false testimony to get a conviction violates due process. Napue v. Illinois, 360 U.S. 264, 269 (1959). 17 State v. Womble, Maricopa County Superior Court Case No. CR2002-010926(B). (See Doc. 23-1, Ex. 5.) - 40 - 1 “same evidence,” that Watts committed the assault. Id. The court found no “constitutional 2 violation.” Id. at 704. The court explained that while a prosecutor is prohibited from 3 “knowingly presenting false evidence,” she is “not preclude[d] . . . from suggesting 4 inconsistent interpretations of ambiguous evidence.” Id. 5 Accordingly, counsel did not perform ineffectively by failing to file a motion to 6 vacate Speer’s conviction under Rule 24.2(a) based on the prosecutor’s comments at 7 Womble’s trial. There was not a reasonable probability that the motion would have been 8 granted. 9 First, as just discussed, there was no constitutional violation. Ariz. R. Crim. Proc. 10 24.2(a)(3). Next, even if the prosecutor’s argument at Womble’s trial constituted “newly 11 discovered material facts,” those facts would not probably have changed Speer’s judgment 12 or sentence. Ariz. R. Crim. Proc. 24.2(a)(2); 32.1(e). The cases Speer cites (Doc. 13 at 79– 13 80) are inapposite, as they involved the discovery of new facts that directly challenged the 14 evidence at trial. See, e.g., State v. Orantez, 183 Ariz. 218, 221–23, 902 P.2d 824, 827–29 15 (1995) (finding defendant entitled to new trial where evidence showed key witness lied 16 about her drug use and likely had drugs in her system at the time of the crime). In Speer’s 17 case, by contrast, there were no new facts affecting the key evidence against him—the 18 contents of the jail phone calls. 19 Because the underlying claim of ineffective assistance of trial counsel is meritless, 20 there was not a reasonable probability of a different outcome in the PCR proceedings if 21 PCR counsel had raised the claim. Because PCR counsel did not perform ineffectively, 22 Speer cannot establish cause for the claim’s default. See Atwood, 870 F.3d at 1059–60; 23 Clabourne. 745 F.3d at 377. Claim 7 is therefore denied as procedurally defaulted and 24 barred from federal review. 25 C. 26 Speer raises claims alleging prosecutorial misconduct (Claims 11 and 13) and 27 challenging the court’s voir dire with respect to the death penalty (Claim 12). The claims 28 are meritless. Trial Error: Guilt Phase - 41 - 1 Claim 11: 2 Speer alleges that his rights under the Fifth, Sixth, Eighth, and Fourteenth 3 Amendments were violated when the trial court denied his motions for a mistrial based on 4 prosecutorial misconduct. (Doc. 13 at 101–02.) This claim includes three instances of 5 alleged misconduct. In the first, Speer states that the prosecutor “openly and repeatedly 6 mocked trial counsel before the jury.” (Id. at 102.) In the second, Speer alleges that the 7 prosecutor, in questioning Det. Olson, “shifted the burden to the defense” by asking 8 whether defense counsel was aware of the jail’s phone call retention policy. (Id. at 103.) 9 Finally, Speer contends that a mistrial was required when the prosecutor, during her guilt- 10 stage closing argument, referred to the burden of proof in the “guilt phase” of trial. (Id.) 11 Speer raised these allegations on direct appeal.18 (Opening Br. at 21–23.) The 12 Arizona Supreme Court held that the trial court did not err in denying the motions for a 13 mistrial. Speer, 221 Ariz. at 458, 212 P.3d at 796. This decision was neither contrary to nor 14 an unreasonable application of clearly established federal law. 15 Speer’s first allegation of misconduct is based on the prosecutor’s redirect 16 examination of Det. Olson, in which she engaged in a reductio ad absurdum of defense 17 counsel’s cross-examination of Olson and the challenges counsel raised to the 18 thoroughness of the crime-scene investigation—asking, for instance, whether Olson 19 fingerprinted the Soto’s young children. (See RT 12/11/06 at 81–82, 89–92.) Defense 20 counsel moved for a mistrial, arguing that the prosecutor “creates a mockery of this case.” 21 (Id. at 90.) The prosecutor responded that counsel had “presented a bumbling cross- 22 examination where he repeatedly asked the same question 16 times,” that his line of 23 questioning was “ridiculous,” and that the “State was certainly entitled to counter” the 24 25 26 27 28 18 Respondents concede that Speer exhausted the second and third of these allegations on direct appeal. (Doc. 16 at 49–51.) They argue the first allegation was not exhausted. (Id. at 49.) Regardless of its procedural posture, the Court will consider the claim on its merits. See 28 U.S.C. § 2254(b)(2) (allowing denial of unexhausted claims on the merits); see also Lambrix v. Singletary, 520 U.S. 518, 524–25 (1997) (explaining that the court may bypass the procedural default issue in the interest of judicial economy when the merits are clear but the procedural default issues are not). - 42 - 1 “aspersions” cast by counsel’s cross-examination. (Id. at 91–92.) The trial court denied the 2 motion for a mistrial. (Id. at 93.) On direct appeal, Speer “summarily allege[d]” this claim. 3 Speer, 221 Ariz. at 458, 212 P.3d at 796, n.6. The Arizona Supreme Court denied the claim, 4 finding there was no misconduct. Id. 5 The next incident of alleged misconduct occurred when the prosecutor asked Det. 6 Olson whether “to your knowledge does Mr. Storrs [defense counsel] know that jail calls 7 are destroyed after six months?” and “to your knowledge did Bob Storrs know in August 8 of 2002 that the jails calls only get kept for six months?” (RT 1/10/07 at 94, 96–97.) Trial 9 counsel moved for a mistrial, arguing that the prosecutor’s questions “actually shifted the 10 burden to the defense, because she was pointing out to the jury that the defendant knew 11 that these calls would be destroyed within six months.” (Id. at 113.) The court pointed out 12 that the prosecutor “didn’t say the defendant.” (Id.) Counsel responded that “the defense 13 or defense [sic] has no burden whatsoever, has no burden to come forward with evidence 14 and she’s shifting the burden to the defendant to adduce evidence” in violation of “his due 15 process right and his right to a fair trial.” (Id. at 113–14.) 16 Defense counsel contended that “mistrial is the only real remedy.” (Id. at 120.) The 17 trial court disagreed and denied the motion. (Id.) The court agreed, however, to instruct the 18 jury that the burden of proving guilt beyond a reasonable doubt never shifts away from the 19 State. (Id. at 120–21.) 20 21 The Arizona Supreme Court held that the trial judge did not err in denying a mistrial. Speer, 221 Ariz. at 458, 212 P.3d at 796. The court explained that: The prosecutor never suggested that the defense had the burden of proving Speer’s innocence. Rather, the questioning appeared designed to rebut any contention of bad faith on the part of the police, by suggesting that both the State and the defense had a chance to preserve the nine calls but failed to do so. In any event, any conceivable prejudice was cured by the instruction. 22 23 24 25 26 27 28 Id. The final incident occurred during the guilt-phase closing argument, when the prosecutor stated that “the defendant does not have—does not have to present any evidence at all. The burden of proof during the guilt phase is all on the State. It never shifts to the - 43 - 1 defendant.” (RT 1/17/07 at 111.) Defense counsel objected. (Id.) He argued that “you can’t 2 intimate that this trial is going to go on, and . . . in the next phase, perhaps the burden will 3 be different. But you can’t talk about any other phase other than the one that we’re in, and 4 so that denies my client a fair trial.” (Id. at 112.) The court denied counsel’s motion for a 5 mistrial, noting that the prosecutor’s statement was “technically correct” and finding no 6 prejudice because “we have spent countless time both in the voir dire and then in the 7 preliminary discussion we’ve had with each juror about the three phases. They have known 8 about it and been told about it. This is nothing new.” (Id. at 112–13.) The Arizona Supreme 9 Court agreed that no prejudice resulted from the prosecutor’s comment because “defense 10 counsel, the prosecutor, and the court itself had previously made plain to the jury that the 11 trial could involve three phases.” Speer, 221 Ariz. at 458, 212 P.3d at 796. 12 Analysis 13 The appropriate standard of federal habeas review of a claim of prosecutorial 14 misconduct is “the narrow one of due process, and not the broad exercise of supervisory 15 power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. 16 DeChristoforo, 416 U.S. 637, 642 (1974)). A petitioner is not entitled to relief in the 17 absence of a due process violation even if the prosecutor’s comments were “undesirable or 18 even universally condemned.” Id. Therefore, to succeed on a claim of prosecutorial 19 misconduct, a petitioner must prove not only that the prosecutor’s remarks and other 20 conduct were improper but that they “so infected the trial with unfairness as to make the 21 resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643; see Parker v. 22 Matthews, 567 U.S. 37, 45 (2012); Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) 23 (explaining that relief is limited to cases in which the petitioner can establish that 24 prosecutorial misconduct resulted in actual prejudice); see also Smith v. Phillips, 455 U.S. 25 209, 219 (1982) (“[T]he touchstone of due process analysis in cases of alleged 26 prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.”). 27 In determining if a defendant’s due process rights were violated, the court “must 28 consider the probable effect [of] the prosecutor’s [remarks] . . . on the jury’s ability to judge - 44 - 1 the evidence fairly.” United States v. Young, 470 U.S. 1, 12 (1985). To make such an 2 assessment, the prosecutor’s remarks must be put into context. See Boyde v. California, 3 494 U.S. 370, 385 (1990); United States v. Robinson, 485 U.S. 25, 33–34 (1988); Williams 4 v. Borg, 139 F.3d 737, 745 (9th Cir. 1998). In Darden, for example, the Court assessed the 5 fairness of the trial by considering whether the prosecutor’s comments manipulated or 6 misstated the evidence, whether the trial court gave a curative instruction, whether the 7 comment was invited by the defense, whether defense counsel had an opportunity to rebut 8 it, and “[t]he weight of the evidence against petitioner.” 477 U.S. at 181–82; see Trillo v. 9 Biter, 769 F.3d 995, 1001 (9th Cir. 2014). 10 In the event a petitioner can establish a due process violation, to be found eligible 11 for relief he must also demonstrate that the violation resulted in a “substantial and 12 injurious” effect on the verdict under the standard set forth in Brecht v. Abrahamson, 507 13 U.S. 619, 637 (1993). Fry v. Pliler, 551 U.S. 112, 121–22 (2007); see Wood v. Ryan, 693 14 F.3d 1104, 1113 (9th Cir. 2012). 15 Courts have substantial latitude when considering prosecutorial misconduct claims 16 because “constitutional line drawing [in prosecutorial misconduct cases] is necessarily 17 imprecise.” Donnelly, 416 U.S. at 645; Matthews, 567 U.S. at 48 (explaining that the 18 “Darden standard is a very general one, leaving courts ‘more leeway. . . in reaching 19 outcomes in case-by-case determinations’”) (quoting Yarborough v. Alvarado, 541 U.S. 20 652, 664 (2004)). 21 The Arizona Supreme Court’s denial of relief on these claims does not satisfy § 22 2254(d)(1). None of the incidents cited by Speer approaches the level of a due process 23 violation. The prosecutor did not manipulate or misstate the evidence, the trial court gave 24 a curative instruction where necessary and instructed the jury that what the lawyers say 25 was not evidence (see, e.g., RT 12/5/06 at 14), the prosecutor’s questions to Det. Olson on 26 redirect were invited by defense counsel’s cross-examination, and the evidence against 27 Speer was strong. See Darden, 477 U.S. at 181–82; see also Williams, 139 F.3d at 745 28 (finding that prosecutor’s remarks maligning defense counsel did not infect the trial with - 45 - 1 unfairness to such a degree that petitioner’s due process rights were violated); Johnson, 63 2 F.3d at 930 (rejecting misconduct claim based on an alleged misstatement of the 3 prosecutor’s burden of proof where the statement was appropriate in context and where the 4 trial court correctly instructed the jury on the state’s burden). For the same reasons, Speer 5 has failed to show that the prosecutor’s comments had a substantial and injurious effect on 6 the verdict. See Brecht, 507 U.S. at 637. 7 The Arizona Supreme Court’s denial of this claim was not “so lacking in 8 justification that there was an error well understood and comprehended in existing law 9 beyond any possibility for fair-minded disagreement.” See Richter, 562 U.S. at 103. Claim 10 11 is denied. 11 Claim 12: 12 Speer alleges that he was deprived of his right to a fair and impartial jury because 13 “voir dire favored those who leaned toward automatic death penalty.” (Doc. 13 at 104.) 14 Speer used his peremptory challenges to dismiss six jurors with a pro-death-penalty bias, 15 but a seventh, Juror 29, served on the jury. Speer argues that his due process rights were 16 violated by the trial court’s failure to strike Juror 29 for cause. Id. He also alleges that his 17 rights were violated when the trial court improperly struck for cause “jurors who leaned 18 against the death penalty but who would have followed the law.” (Doc. 13 at 109.) The 19 Arizona Supreme Court denied these claims on direct appeal. Speer, 221 Ariz. at 454–56, 20 212 P.3d at 792–94. 21 1. 22 Defense counsel moved to strike Juror 29 for cause “on the basis that he did indicate 23 that the death penalty should be imposed in all cases when the State has proven beyond a 24 reasonable doubt that the person killed another with premeditation.” (RT 11/13/06 at 165.) 25 This was a reference to an answer on the juror questionnaire, which asked the potential 26 juror to select the position that best matched their view on the death penalty. (See id. at 27 166.) The trial court denied the motion, finding that Juror 29’s “views do not substantially 28 impair the performance of his duties.” (Id.) The court explained that the juror Failure to excuse pro-death-penalty juror - 46 - 1 “acknowledged changing his views on the death penalty from when he was younger, where 2 he originally believed an eye for an eye, meaning you take a life you forfeit a life,” whereas 3 he now believed in “weigh[ing] all factors before determining the [sic] death is the 4 punishment.” (Id. at 167.) The court continued, noting that Juror 29 “not only backed off, 5 he then urged that his views were that extenuating circumstances could mitigate against the 6 death penalty,” circumstances including the defendant’s “mental health history,” “difficult 7 upbringing or substance abuse.” (Id.) The court concluded that the juror was “open-minded, 8 and he is willing to listen to all the facts before deciding whether to impose death.” (Id.) 9 The court’s observations accurately described Juror 29’s voir dire answers. (See id. at 148– 10 57.) 11 The Arizona Supreme Court found that the trial court did not abuse its discretion by 12 refusing to strike Juror 29 for cause. The court first cited Morgan v. Illinois, 504 U.S. 719, 13 729 (1992), for the proposition that a juror who will automatically vote for the death penalty 14 without considering mitigating circumstances does not meet the threshold requirement of 15 impartiality. Speer, 221 Ariz. at 455, 212 P.3d at 793. The court then explained that Juror 16 29 was the only pro-death-penalty-leaning juror identified by Speer who remained on the 17 jury after the defense used its peremptory strikes,19 so it was only his presence on the jury 18 that the court needed to consider.20 Id. Finally, the court examined the juror’s answers to 19 questions about the death penalty: 20 21 22 23 24 25 Juror 29 selected the following statement in the jury questionnaire as most closely representing his views: “I feel the death penalty should be imposed in all cases as long as the State proves beyond a reasonable doubt that a person killed another human being with premeditation.” He underlined “beyond a reasonable doubt.” In the same questionnaire, the juror wrote that “when I was younger, I felt an eye for an eye,” but now “I want to know why before I decide.” During voir dire, he agreed that he “might not . . . vote to impose death” if a person “had a pretty tough upbringing” or “mental health problems,” stating, “I need to hear everything before I decide.” Given Juror 26 19 27 28 The defense struck Jurors 5, 19, 55, 90, 242, and 400. (See Doc. 13 at 107–09.) Here the court cited State v. Cruz, 218 Ariz. 149, 158, 181 P.3d 196, 205 (2008). Cruz, in turn, relied on the United States Supreme Court’s holding in United States v. Martinez-Salazar, 528 U.S. 304, 313 (2000). 20 - 47 - 1 2 29’s statements, the trial court’s refusal to strike him for cause was not an abuse of discretion. 3 Speer, 221 Ariz. at 455, 212 P.3d at 793. This ruling was neither contrary to nor an 4 unreasonable application of clearly established federal law. 5 In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme Court “set forth the 6 rule for juror disqualification in capital cases.” White v. Wheeler, 577 U.S. 73, 77 (2015). 7 Capital defendants are entitled to a jury not “uncommonly willing to condemn a man to 8 die.” Witherspoon, 391 U.S. at 521. The Supreme Court “with equal clarity has 9 acknowledged the State’s ‘strong interest in having jurors who are able to apply capital 10 punishment within the framework state law prescribes.’” Wheeler, 577 U.S. at 77 (quoting 11 Uttecht v. Brown, 551 U.S. 1, 9 (2007)). A juror may be excused for cause only if he or she 12 is “substantially impaired in his or her ability to impose the death penalty under the state- 13 law framework.” Uttecht, 551 U.S. at 9 (citing Wainwright v. Witt, 469 U.S. 412, 424 14 (1985)). A juror may be excused for cause “where the trial judge is left with the definite 15 impression that a prospective juror would be unable to faithfully and impartially apply the 16 law.” Witt, 469 U.S. at 425–26. 17 “A defendant has a constitutional due process right to remove for cause a juror who 18 will automatically vote for the death penalty.” United States v. Mitchell, 502 F.3d 931, 954 19 (9th Cir. 2007) (citing Morgan, 504 U.S. 719). However, the failure to strike a biased juror 20 does not violate a defendant’s rights to an impartial jury and due process when the juror 21 did not sit on the jury, even if the defendant had to use a peremptory challenge to strike 22 him. Id. “So long as the jury that sits is impartial, . . . the fact that the defendant had to use 23 a peremptory challenge to achieve that result does not mean the Sixth Amendment was 24 violated.” United States v. Martinez-Salazar, 528 U.S. 304, 313 (2000) (quoting Ross v. 25 Oklahoma, 487 U.S. 81, 88 (1988)). 26 The Arizona Supreme Court reasonably applied Martinez-Salazar and 27 Witherspoon/Witt in rejecting Speer’s challenge to the trial court’s refusal to remove Juror 28 29 for cause. - 48 - 1 A state court’s determination that a juror’s views would substantially impair the 2 discharge of his duties is a factual finding entitled to a presumption of correctness on 3 federal habeas review. Witt, 469 U.S. at 426 (“[D]eference must be paid to the trial judge 4 who sees and hears the juror.”); see Uttecht, 551 U.S. at 9 (“Deference to the trial court is 5 appropriate because it is in a position to assess the demeanor of the venire, and of the 6 individuals who compose it, a factor of critica487 U.S. importance in assessing the attitude 7 and qualifications of potential jurors.”). A trial court’s “finding may be upheld even in the 8 absence of clear statements from the juror that he or she is impaired. . . .” Uttecht, 551 U.S. 9 at 7. Finally, AEDPA requires an additional, “independent, high standard” of deference. 10 Id. at 10; see Wheeler, 577 U.S. at 78. 11 In Uttecht the Court clarified that “[t]he need to defer to the trial court’s ability to 12 perceive jurors’ demeanor does not foreclose the possibility that a reviewing court may 13 reverse the trial court’s decision where the record discloses no basis for a finding of 14 substantial impairment.” 551 U.S. at 20. However, where there has been “lengthy 15 questioning of a prospective juror and the trial court has supervised a diligent and 16 thoughtful voir dire, the trial court has broad discretion.” Id.; see Wheeler, 577 U.S. at 79. 17 In Speer’s case there was a lengthy and diligent voir dire process, which included 18 the prescreening of panels of potential jurors followed by the completion of a detailed 19 questionnaire. (See, e.g., RT 11/6/06 at 8, 13, 33.) The attorneys and the court then 20 examined each of the remaining potential jurors, including Juror 29, individually, a process 21 that consumed several days. (See RT 11/9/06–11/20/06.) The questioning of Juror 29 alone 22 occupied more than 20 transcript pages. (RT 11/13/06 at 142–165.) Finally, the remaining 23 40 members of the final venire panel were questioned by the court and the parties, after 24 which a jury of 16, consisting of 12 jurors and 4 alternates, was selected. (See RT 12/4/06 25 at 3, 56, 76.) 26 Nothing in this record undermines the presumption of correctness attaching to the 27 trial court’s determination that Juror 29 was not substantially impaired in his ability to carry 28 out his duties impartially. His answers revealed that he would not vote for death without - 49 - 1 considering the mitigating evidence. (RT 11/13/06 at 150–55.) To the extent any ambiguity 2 remained in Juror 29’s attitude about the death penalty after his questioning by the parties, 3 the trial court was “entitled to resolve it in favor of the State.” Uttecht, 551 U.S. at 7 4 (quoting Witt, 469 U.S. at 434). 5 Applying the additional level of deference required by AEDPA, the Arizona 6 Supreme Court’s decision to affirm the trial court’s refusal to excuse Juror 29 for cause 7 was not “so lacking in justification that there was an error well understood and 8 comprehended in existing law beyond any possibility for fairminded disagreement.” 9 Richter, 562 U.S. at 103; see Wheeler, 577 U.S. at 78–79. 10 2. 11 Speer alleges that his rights were violated when the trial court “excused for cause 12 jurors who leaned against the death penalty but who would have followed the law.” (Doc. 13 13 at 109.) The Arizona Supreme Court, citing Witherspoon and Witt, denied the claim on 14 direct appeal. Speer, 221 Ariz. at 455–56, 212 P.3d at 793–94. This decision was neither 15 contrary to nor an unreasonable application of clearly established federal law. Excusal of anti-death-penalty jurors 16 A prospective juror in a capital case may be excluded for anti-death-penalty views 17 only if he indicates he is “irrevocably committed, before the trial has begun, to vote against 18 the penalty of death regardless of the facts and circumstances that might emerge in the 19 course of the proceedings.” Witherspoon, 391 U.S. at 522 n.21. The exclusion of jurors for 20 cause “simply because they voiced general objections to the death penalty or expressed 21 conscientious or religious scruples against its infliction” violates the federal 22 constitution. Id. Again, a juror cannot be dismissed for cause unless his views “would 23 prevent or substantially impair the performance of his duties as a juror in accordance with 24 his instructions and his oath.” Adams v. Texas, 448 U.S. 38, 45 (1980). “The State may 25 insist, however, that jurors will consider and decide the facts impartially and 26 conscientiously apply the law as charged by the court.” Id. “[A] juror who in no case would 27 vote for capital punishment, regardless of his or her instructions, is not an impartial juror 28 and must be removed for cause.” Morgan, 504 U.S. at 728. - 50 - 1 Speer argues that the court wrongly excused Jurors 136, 250, and 427 for their 2 “hesitation about imposing the death penalty.” (Doc. 13 at 111.) He argues that each juror 3 indicated he or she could follow the law, and that they could have been “rehabilitated” with 4 additional questioning. (Id.) This argument is unpersuasive. 5 6 The trial court undertook an extensive voir dire with respect to these potential jurors, with the parties and the judge questioning the individual jurors. 7 Juror 136 stated that she was not sure she would “have the ability” to sentence 8 someone to death. (RT 11/15/06 at 6.) She then admitted that she would hold the State to 9 a higher burden of proof than beyond a reasonable doubt. (Id.) She explained that she had 10 difficulty with “the sentencing part” and did not know if she “would be able to say, let’s 11 take his life.” (Id. at 13.) She elaborated that “can I say that he is guilty and his life should 12 be taken? No, I can’t do that.” (Id.) 13 The court granted the prosecutor’s motion to strike Juror 136 for cause. (Id. at 20– 14 21.) The court noted that the juror “began by saying she doesn’t know if she could impose 15 the death penalty given her conscience.” (Id. at 21.) She also stated she would require the 16 State to prove guilt beyond a “shadow of a doubt,” even though she knew that was a higher 17 standard than the law required. (Id. at 21–22.) Finally, the judge explained, Juror 136 again 18 stated “she doesn’t know if she could vote to take another person’s life” and indicated “this 19 isn’t a case where she feels that she could impose the death penalty.” (Id. at 22.) 20 21 22 23 24 25 26 27 28 The Arizona Supreme Court found that the trial court did not abuse its discretion by striking the juror: On voir dire, Juror 136 said “I’m not quite sure . . . if I will be able to do a death sentence.” The juror then said that “it’s not that I’m against it, it’s just that I don’t know if I would be able to put someone else’s life in my hands beyond a reasonable doubt.” On examination by defense counsel, the juror reiterated that “my problem . . . is . . . beyond a shadow of a doubt. Okay. Can you prove to me beyond a shadow of a doubt enough for me to accept that this crime happened?” The juror then stated, “I could listen to the evidence, but can I say that he is guilty and his life should be taken? No, I can’t do that.” Given these statements, the trial court did not abuse its discretion in granting the State’s motion to strike. - 51 - 1 2 Speer, 221 Ariz. at 455, 212 P.3d at 793. This was a reasonable application of clearly established federal law. 3 “A juror’s voir dire responses that are ambiguous or reveal considerable confusion 4 may demonstrate substantial impairment.” United States v. Fell, 531 F.3d 197, 215 (2d Cir. 5 2008) (“[A juror’s] assurances that he would consider imposing the death penalty and 6 would follow the law do not overcome the reasonable inference from his other statements 7 that in fact he would be substantially impaired in this case. . . .”) (quoting Uttrecht, 551 8 U.S. at 18); see United States v. Allen, 605 F.3d 461, 466 (7th Cir. 2010) (“Because 9 appellate judges are absent from voir dire, when a prospective juror fails to express herself 10 ‘carefully or even consistently . . . it is [the trial] judge who is best situated to determine 11 competency to serve impartially.’”) (quoting Patton v. Yount, 467 U.S. 1025, 1039 (1984)). 12 Juror 136’s statements were not always consistent, or even, at times, coherent, but she was 13 14 15 16 consistent in indicating that her views would make it difficult or impossible to vote for a death sentence in this case. The trial court “properly considered all of [the juror’s] responses in the context in which they were given and did not err in concluding that [her] views would significantly interfere with [her] duties as juror.” Fell, 531 F.3d at 215. 17 Juror 250 stated that it would be “very hard” for her to vote for the death penalty 18 and that it would have to be an “extreme case.” (RT 11/20/06 at 84.) When questioned by 19 counsel she repeated that “possibly” she would be unable to vote for the death penalty. (Id. 20 21 22 at 91, 92, 94.) She stated again that she would prefer not to make the decision and would be uncomfortable doing so, and that the death penalty was appropriate only in the case of a serial killer. (Id. at 88–89, 90.) When asked by the judge for a definitive answer as to 23 whether she could “follow the instructions of law as given and impose the death penalty 24 and not vote automatically against it,” the juror responded “I guess I’d have to say I don’t 25 think I can vote for the death penalty.” (Id. at 97.) Based on that answer the court found 26 the juror’s ability to perform her duties was substantially impaired and granted the State’s 27 28 motion to strike her. (Id. at 101–02.) The Arizona Supreme Court affirmed, Speer, 221 Ariz. at 456, 212 P.3d at 794. This was a reasonable application of Morgan, 504 U.S. at - 52 - 1 728, which held that jurors who would in no case vote for the death penalty must be 2 removed for cause. 3 Finally, Juror 427 stated that although she was not opposed to the death penalty in 4 “horrible cases,” she was “not positive [she] can make a decision that could lead to the 5 death sentence of a person.” (RT 11/30/06 at 66.) She did not know if she was “capable of 6 it.” (Id.) In responding to questions from defense counsel, the juror agreed she could be 7 fair and impartial in hearing and weighing the evidence and could follow the judge’s 8 instructions. (Id. at 67.) Subsequently, however, in responding to questions from the 9 prosecutor, the juror admitted that her “ability to be fair and impartial” would be 10 “substantially impaired by . . . not knowing whether you could actually vote for the death 11 penalty or not.” (Id. at 72.) Finally, when pressed by the judge for a definitive yes or no 12 answer, the juror acknowledged that her “performance as a juror” would be “impaired” by 13 the death penalty being an issue in the case. (Id. at 74.) The court granted the State’s 14 motion to strike the juror. (Id. at 80.) 15 16 17 18 19 20 21 22 23 24 The Arizona Supreme Court found that the trial court did not abuse its discretion, explaining: Juror 427 initially indicated that, although uncomfortable with the death penalty, she would follow the judge’s instructions. However, the juror later stated, “I don’t know that I’m capable of it.” On further questioning by the State, the juror responded affirmatively to the question of whether “your ability to be fair and impartial is substantially impaired by your not knowing whether you could actually vote for the death penalty.” The court later asked the same question, and the juror responded, “From where I sit right now, I believe it could be an impairment. I believe the fact that I don’t wish to be responsible for that may sway me.” Given these statements, the court did not abuse its discretion in striking the juror. Speer, 221 Ariz. at 456, 212 P.3d at 794. 25 This was a reasonable application of Witt. Although at one point she indicated she 26 could follow the court’s instructions, ultimately Juror 427 admitted that her ability to serve 27 as a fair and impartial juror was impaired. See Uttrecht, 551 U.S. at 18; Morales v. Mitchell, 28 507 F.3d 916, 941 (6th Cir. 2007) (“[I]solated statements indicating an ability to impose - 53 - 1 the death penalty do not suffice to preclude the prosecution from striking for cause a juror 2 whose responses, taken together, indicate a lack of such ability or a failure to comprehend 3 the responsibilities of a juror.”). 4 Applying the additional level of deference required by AEDPA, the Arizona 5 Supreme Court’s decision to affirm the trial court’s excusal of Jurors 136, 250, and 427 for 6 cause was not “so lacking in justification that there was an error well understood and 7 comprehended in existing law beyond any possibility for fairminded disagreement.” 8 Richter, 562 U.S. at 103; see Wheeler, 577 U.S. at 78–79. Claim 12 is denied. 9 Claim 13: 10 Speer alleges that “prosecutorial misconduct pervaded all phases” of his trial. (Doc. 11 13 at 113.) In the first of three subclaims, Speer alleged misconduct based on the State’s 12 non-compliance with a discovery request concerning the recorded phone calls. As set forth 13 above, the Court denied the claim as procedurally defaulted and barred from federal review. 14 Speer acknowledges that he likewise failed to raise in state court the remaining allegations 15 of guilt- and penalty-phase misconduct. (Doc. 13 at 119, 127.) He argues that the default 16 of the claims is excused by the ineffective assistance of appellate and PCR counsel. (Id.) 17 Again, ineffective assistance of appellate counsel may be used as cause to excuse a 18 procedural default only where the particular ineffective assistance allegation was first 19 exhausted in state court as an independent constitutional claim. See Carpenter, 529 U.S. at 20 453; Carrier, 477 U.S. at 489–90. Speer did not raise such a claim of ineffective assistance 21 of appellate counsel. Under Martinez the ineffective assistance of PCR counsel can excuse 22 the default only of claims of ineffective assistance of trial counsel. See Martinez (Ernesto), 23 926 F.3d at 1225; Pizzuto, 783 F.3d at 1177. Accordingly, the remaining allegations in 24 Claim 13 are also defaulted and barred from federal review. 25 D. 26 Speer alleges that counsel performed ineffectively in their presentation of mitigating 27 evidence, by failing to challenge prosecutor’s misconduct, and by failing to challenge the 28 instructions provided by the court when the jury deadlocked (Claim 14). He also alleges Ineffective Assistance of Counsel: Sentencing - 54 - 1 that counsel performed ineffectively by stipulating to aggravating factors, by admitting 2 prior convictions, and by allowing two expert reports to be disseminated to the State 3 (Claims 15, 16, and 17). Finally, he alleges that counsel performed ineffectively by failing 4 to effectively impeach the State’s mental health expert (Claim 19). 5 Claim 14: 6 Claim 14 consists of one exhausted and four unexhausted subclaims. In the 7 exhausted subclaim, Speer alleges that counsel performed ineffectively during the penalty 8 phase of his trial by failing to investigate and present readily available mitigating evidence, 9 specifically the testimony of lay witnesses who would have corroborated Speer’s claims 10 that he was physically and sexually abused, that his family had a history of addiction and 11 mental illness, that he experienced substance abuse, and that he did not receive the 12 institutional help he needed. (Doc. 13 at 140.) The PCR court denied this claim on the 13 merits. (ME 5/20/15 at 17–20.) 14 Speer also alleges that counsel performed ineffectively by failing to present 15 “effective” expert testimony about Speer’s abusive background, trauma, and 16 “neurocognitive deficits”; to present evidence of co-defendant Brian Womble’s mental 17 illness; to respond to prosecutorial misconduct; and to raise appropriate objections when 18 the jury “deadlocked” during the penalty phase (Doc. 13 at 150–56.) He did not raise these 19 claims in state court. He argues their default is excused under Martinez by the ineffective 20 assistance of PCR counsel. (Id.) 21 1. 22 Speer argues that counsel performed ineffectively by failing to offer additional 23 Exhausted claim: failure to present additional lay mitigating evidence mitigating evidence from lay witnesses. (Doc. 13 at 140–150.) 24 Additional background 25 The penalty phase of Speer’s trial was held over 14 days in February and March of 26 2007. Counsel presented mitigating testimony from three mental health experts: Dr. Paul 27 Miller, Dr. Susan Parrish, and Dr. Pablo Stewart. Counsel also called three family 28 - 55 - 1 members, Speer’s half-brother Chris; his stepfather, William Womble; and his cousin Carla 2 Lujan. 3 4 a. Expert witnesses i. Dr. Miller 5 Dr. Paul Miller, a psychology professor with expertise in child development, was 6 retained by the defense to “write a developmental report that took a look at all of the risk 7 factors that [Speer] experienced, starting before birth” to age 13 or 14. (RT 2/6/07 at 27, 8 35, 37.) Dr. Miller met with Speer twice and reviewed records provided by counsel and 9 mitigation specialist Dave Wilcox. (Id. at 35.) The documents included mental health 10 records, school records, probation officer and Child Protective Services (“CPS”) reports, 11 and police reports. (Id. at 36–37.) Dr. Miller’s 25-page report was admitted as a trial 12 exhibit. (See Doc. 23-10, Ex. 53.) 13 Dr. Miller testified that a risk factor is a “factor that impedes or otherwise interferes 14 with the normal growth and development of a child.” (RT 2/6/07 at 46.) He explained that 15 such factors, “pile[d] on top of one another,” as they were in Speer’s case, have a 16 multiplying effect, so that “the worse it gets, the worse it gets.” (Id. at 40, 46.) 17 Dr. Miller testified about these risk factors using a Power Point presentation which 18 also documented the research supporting the factors. (Id. at 45.) The factors included 19 substance abuse in the home and natal exposure to heroin and methadone (RT 2/6/07 at 20 47–55, 72–82); maternal depression and unpredictable behavior (id. at 55–63); 21 abandonment by Speer’s biological father (id. at 63–65); parental history of substance 22 abuse (id. at 63–65; RT 2/7/07 at 30–34); abusive treatment by his stepfather Bill Womble, 23 including beatings with fists and belts (RT 2/6/07 at 65–67); the death of Speer’s 24 grandfather (id. at 67–68); inter-parental conflict, including physical violence, causing 25 insecurity, fear, depression, and disruptive behavior (id. at 70–71); negative parental 26 practices, including neglect, favoritism, harsh and inconsistent discipline, and 27 scapegoating, which led to low self-esteem and an increased risk for aggressive, 28 oppositional, and anti-social behavior (id. at 89–134); sexual abuse (id. at 135–42; RT - 56 - 1 2/7/07, a.m., at 4–9); childhood depression (RT 2/7/07 at 10–17); and Speer’s own 2 substance abuse (id. at 33–38). 3 Dr. Miller explained that natal exposure to methadone and heroin can be responsible 4 for attention deficit hyperactivity disorder (ADHD) and difficulties in impulse control and 5 self-regulation. (RT 2/6/07 at 75.) The caregiving environment in Speer’s childhood home 6 was also compromised by the parents’ drug use. Speer needed more care and attention due 7 to his in utero exposure to drugs but the continuing drug use by his parents prevented that 8 from happening. A child in Speer’s position cannot make up the developmental delays he 9 experienced. (Id. at 75–76.) Children born to heroin-dependent parents also suffer from 10 lower IQs, motor skills, visual skills, and reading and arithmetic skills. (Id. at 86.) 11 With respect to sexual abuse, Dr. Miller testified that Speer reported being sexually 12 molested by a paternal aunt at age five or six. (RT 2/6/07 at 135–36.) Speer also reported 13 that when he was 12 or 13 a maternal uncle “involve[ed] him in sexual activities with other 14 men in order to obtain money for drug use.” (Id. at 13.) He would find “older men” and 15 have Speer “dress up and engage in fondling and other sexual activity.” (RT 2/7/07 at 6.) 16 He used emotional manipulation to persuade Speer to engage in these activities. 17 Dr. Miller testified that sexually abused children are at risk for drug use, depression, 18 anxiety, conduct disorder, and low self-esteem. (RT 2/6/07 at 139; RT 2/7/07 at 9.) The 19 same uncle who “pimped him out” also used Speer to commit burglaries. Because of his 20 small size, Speer was able to enter homes by crawling through dog doors. (RT 2/7/07, a.m., 21 at 5.) 22 In detailing the parental neglect and rejection Speer experienced, Dr. Miller noted 23 that Speer’s mother sent him to stay with his grandmother every weekend. (RT 2/6/07 at 24 127.) She wanted the court to remove Speer from her custody. (Id. at 128.) When Speer 25 was 13 she threw him out of the house, gave him his birth certificate, threatened him with 26 a baseball bat, and told him not to return. (Id. at 129–30.) She was abusing heroin and 27 hallucinating at the time. (Id. at 130.) Dr. Miller also noted reports that the house was a 28 - 57 - 1 mess and that Speer and Chris had to steal clothes and shoes because his parents would not 2 buy them new ones. (Id. at 131.) 3 Dr. Miller explained that among older adolescents, parental rejection may lead to 4 “association with deviant peers,” which in turn can lead to substance abuse. (Id. at 133– 5 34.) 6 In describing Speer’s childhood depression, Dr. Miller noted that Speer reported 7 suicidal thoughts as early as age 11 and had been diagnosed with depression at ages 10 and 8 11 by Drs. Martig and Cabanski.21 (RT 2/7/07, a.m., at 10.) Dr. Martig opined that Speer’s 9 depressive features began in early childhood. (Id. at 12.) In 1990 a school psychologist 10 reported that Speer, who was living with his grandparents, was sad, fearful, and angry, and 11 felt rejected, unloved, and not a part of the family. (Id. at 12–13.) The psychologist 12 diagnosed Speer with clinical levels of depression and anxiety. (Id. at 13.) Dr. Miller 13 testified that Speer’s acting out and “disruptive conduct disorder behavior is his way of 14 blocking out or defending against the feelings that are associated with depression, the 15 shame, the guilt, the anger.” (Id. at 14.) There was a link between Speer’s depressive 16 features and his behavioral problems in school. (Id. at 16.) 17 Dr. Miller also testified that Speer’s aggressive and violent behavior was learned 18 through watching the relationship between his parents and their use of threats and force 19 against the children. (Id. at 21.) Speer “learn[ed] to fight back.” (Id.) He engaged in 20 aggressive behaviors and had problems “regulating his emotions starting very early in age 21 and continuing throughout because he’s dealing with all these really large messages of 22 rejection and displacements from the family and these criticisms that he gets.” (Id. at 23.) 23 The message he got from his family was “the more you get upset, the more aggressive you 24 are.” (Id. at 24.) 25 26 27 28 21 Dr. Roger Martig and Dr. Stan Cabanski. Dr. Martig diagnosed Speer with depression, a conduct disorder, symptoms of hyperactivity, and narcissistic personality traits. (See Doc. 23-10, Ex. 49 at 3–4.) Dr. Cabanski diagnosed Speer as emotionally handicapped with ADHD and recommended probationary supervision and special education. (Id. at 4.) - 58 - 1 Dr. Miller described the characteristics of a conduct disorder diagnosis and 2 explained that “intervention programs [can be] effective in reducing conduct disorder 3 behavior.” (Id. at 28.) Dr. Miller noted that Speer’s behavior changed for the better while 4 undergoing intensive residential placement. (Id. at 29.) 5 Dr. Miller then recounted Speer’s substance abuse history, testifying that Speer 6 reported his mother “shooting him up” at age 12; he overdosed on crystal 7 methamphetamine at that same age. (Id. at 31, 35.) He was constantly exposed to the drug 8 use of his parents and other adults. (Id. at 30–36.) At age 16 he asked for “real drug 9 treatment.” (Id. at 35.) 10 The next risk factors Dr. Miller testified about were “academic, social, and 11 behavioral problems.” (Id. at 39.) Dr. Miller discussed Speer’s ADHD and its effect on his 12 academic performance and behavior. (Id. at 39–44.) He noted that Speer was treated with 13 Ritalin but never received the necessary support from his parents to succeed academically. 14 (Id. at 42–44.) Failing in school, Speer felt “hopeless, helpless, and worthless.” (Id. at 48.) 15 To become accepted he became a “class clown,” getting into trouble with teachers but 16 “gain[ing] recognition . . . in a negative way.” (Id. at 49.) Eventually, however, he 17 antagonized peers with his aggressive behavior. (Id. at 59.) At this point he became 18 susceptible to “deviant peer associations” and these associations “progress[ed] toward 19 delinquent behavior.” (Id. at 60–61.) Ultimately Speer was placed in the juvenile prison 20 system, where he joined a gang for protection against older and larger inmates. (Id. at 64.) 21 Finally, Dr. Miller testified about Speer’s successes or “pro-social choices.” (Id. at 22 68.) At age eight he lived with his cousin Carla Lujan. In that “well-organized” household, 23 Speer was “great” and “wonderful,” participating in family Bible studies, acting politely, 24 and not getting into trouble. (Id. at 68–69.) Carla also noted that Speer took care of his 25 siblings when they needed something to eat or drink. (Id. at 69.) 26 Dr. Miller testified that Carla’s mother, Sue, regularly attended therapy sessions 27 with Speer, unlike his mother and stepfather, who attended few sessions and did not 28 participate effectively. (Id. at 69–70.) Speer appeared to be “very bright” and “capable of - 59 - 1 learning new behaviors.” (Id.) The probation officer who was working with Speer’s family 2 described Speer’s attitude as positive. (Id. at 70.) Another probation officer reported that 3 at age 11 Speer was “starting to show improvement in school daily checks.” (Id.) The 4 assistant principal noted that Speer “was not seen as violent, but his behavior reflect[ed] 5 attention seeking,” which was “very consistent with a child who doesn’t feel he’s loved, 6 feels he’s rejected, . . . wants some approval from some adult.” (Id.) 7 Speer responded positively to Juvenile Intensive Probation, even without the 8 participation of his parents (Id. at 71–72.) His attitude was good, he took probation 9 seriously and enjoyed visits from the probation officer, and he submitted clean urinalyses. 10 (Id. at 71–73.) His attendance was good and “he[] made good strides in changing his 11 behavior, progressing toward self-control and self-esteem.” (Id. at 73.) 12 In 1991, at age 12, Speer was placed in a residential facility, Wayland. (RT 2/7/07, 13 p.m., at 6.) At one point he wrote a letter asking to remain in the program. (Id.) At Wayland 14 he showed “positive changes in his behavior in terms of controlling his impulses, and 15 reduced oppositional behaviors and aggressive behaviors.” (Id. at 7.) 16 Dr. Miller testified that Speer was released from the Wayland program prematurely. 17 (Id. at 7–8.) He did “generally well” when he returned home but his conduct quickly 18 regressed. (Id. at 8.) He began to engage in disruptive behavior, property damage, and 19 substance abuse. (Id.) Dr. Miller explained that a much longer period of time in the program 20 was required to change the behavior of Speer’s parents and the “dynamics or the common 21 disorder” in the family. (Id. at 8–9.) 22 Speer was next placed in the Adobe Mountain juvenile facility where he again made 23 “deviant peer associations” and became “more ingrained into delinquent behaviors,” 24 learning “what to do in terms of being delinquent, in terms of theft and car stealing, and 25 stuff like that.” (Id. at 9.) Dr. Miller explained that “we see from there on out a pattern of 26 continued delinquent behaviors, alternative placements through corrections, and . . . just 27 the progression into more and more delinquent behaviors.” (Id.) 28 - 60 - 1 Dr. Miller testified that a structured, comprehensive residential program like 2 Wayland can be “effective in reducing recidivism or reducing the aggressive behavior 3 conduct disorder.” (Id. at 14–15.) He concluded that he was not surprised that Speer 4 continued his delinquent behavior as an adult, given the risk factors Speer was exposed to 5 and the failure to provide him with an adequate treatment program. (Id. at 16–17.) 6 ii. Dr. Parrish 7 Dr. Susan Parrish, a neuropsychologist, evaluated Speer’s neurocognitive 8 functioning and testified on his behalf. (RT 2/27/07.) Dr. Parrish administered the 9 Halstead-Reitan Neuropsychological Test Battery, an instrument on which she is a leading 10 expert, the Wechsler Adult Intelligence Scale, and the Wide Range Achievement Test-3. 11 (See 3/1/07 at 21–22.) She also reviewed previous evaluations of Speer, dating back to 12 when he was 11 years old, and other records, including the indictment, police reports, 13 correctional health records, school records, and CPS records. (RT 2/27/01 at 129–31.) 14 Dr. Parrish testified at length about Speer’s performance on the Halstead-Reitan 15 test. (Id. at 126–55.) She concluded that Speer’s score placed him “at the very upper end 16 of the range for moderate impairment,” one point away from severe impairment. (Id. at 17 155.) She opined that the cause of Speer’s impairment was his drug use or his in utero 18 exposure to drugs. (RT 3/1/07 at 51–52.) 19 Dr. Parrish testified that Speer’s IQ had been tested on eight prior occasions, with 20 full-scale scores ranging from 77 to 92. (RT 3/8/07 at 12–16.) Dr. Parrish measured Speer’s 21 IQ as 84. (RT 3/1/07 at 30.) 22 Because experts who had evaluated Speer earlier in the case—Drs. Jack Potts and 23 John Toma—had opined that he malingered during tests for competency and IQ, Dr. 24 Parrish re-tested Speer to include a malingering index and found that the test results were 25 valid. (RT 3/19/07 at 37–38.) 26 Dr. Parrish testified that while she did not perform a clinical interview of Speer, and 27 therefore could not diagnose him, based on her review of the data she “thought a diagnosis 28 - 61 - 1 of posttraumatic stress disorder should be explored.” (RT 3/1/07 at 52.) She noted Speer’s 2 history of family dysfunction, physical abuse, and sexual abuse. (Id. at 53.) 3 Dr. Parrish testified that Speer’s neurological impairment “affects all areas of 4 performance” and behavior. (Id. at 54.) His impulsivity, difficulty following rules, and 5 difficulty maintaining attention were consistent with a diagnosis of neurological 6 impairment. (Id.) Dr. Parrish noted that Speer had been diagnosed with conduct disorder, 7 meaning that his misconduct was a choice, but she felt that his behavior and acting out 8 were the product of neurological impairment and depression. (Id. at 55–56.) She agreed 9 with a school psychologist, Robin Storm, who had opined that Speer suffered from severe 10 emotional impairment rather than a conduct disorder. (Id. at 56–60.) 11 Dr. Parrish testified that Speer’s history of legal problems and aggressive, 12 oppositional behaviors were better accounted for by a diagnosis of PTSD as opposed to 13 antisocial personality disorder. (RT 3/8/07 at 23.) Dr. Parrish outlined the facts supporting 14 each of the criteria for a diagnosis of PTSD, including traumatic events Speer experienced, 15 among which were being attacked by his mother, who wanted to beat the demons out of 16 him, witnessing his half-brother Chris get shot, being sexually abused by his aunt, being 17 sent away from home on several occasions, and being physically abused by his stepfather. 18 (Id. at 27–31.) 19 In support of a diagnosis of PTSD, Dr. Parrish further testified that Speer 20 experienced “intrusive distressing recollection[s]” of these events as well as “intense 21 psychological distress,” including depression. (Id. at 33.) She testified that Speer engaged 22 in acting out behavior, including sexual acting out as a child; that he made “efforts to avoid 23 thoughts, feelings or conversations associated with the trauma”; that he experienced 24 “increased arousal,” including difficulty falling or staying asleep; that his symptoms lasted 25 more than a month; and that the “disturbance caused clinically significant distress or 26 impairment in social, occupational, or other important areas of functioning.” (Id. at 33–35.) 27 Dr. Parrish opined that Speer suffered from chronic rather than acute PTSD. (Id. at 43.) 28 - 62 - 1 Dr. Parrish acknowledged that Speer engaged in antisocial behavior but again 2 documented a number of factors that contributed to that behavior, including conflicts 3 within the home, neuropsychological problems, impairment in brain function, and 4 depression. (Id. at 36–41.) She also noted that “substance abuse is commonly found among 5 people who have ADHD.” (Id. at 41–42.) 6 Finally, Dr. Parrish testified that antisocial personality disorder was not the 7 appropriate diagnosis for Speer. (Id. at 45.) In her opinion, the “combination of impairment 8 of brain functions and PTSD account for the symptoms far better than personality 9 disorder.” (Id.) She also noted that, unlike individuals diagnosed with antisocial personality 10 disorder or psychopathy, Speer was capable of expressing concern for others and 11 experiencing fear and anxiety. (Id. at 47–49.) 12 13 Dr. Parrish’s report was admitted at trial. (See Doc. 23-10, Ex. 49.) iii. Dr. Stewart 14 Dr. Pablo Stewart, a psychiatrist, testified for Speer in mitigation. He diagnosed 15 Speer with PTSD, ADHD, major depressive disorder, and Polysubstance Abuse 16 Dependence, as well as moderate to severe impairment in brain function. (RT 2/28/07 at 17 10.) According to Dr. Stewart, Speer’s “constellation of disorders all contributed to his 18 neurocognitive impairment.” (Id. at 14.) Dr. Stewart opined that Speer’s “brain is damaged 19 to the extent that he has an impaired ability to weigh, deliberate, conceptualize sequence 20 of events and adapt to changing environmental cues.” (Id.) 21 Dr. Stewart also cited as significant circumstances in Speer’s background the fact 22 that he was “drug-exposed as a fetus,” which contributed to his brain dysfunction, and “the 23 depravity of [sic] which he grew up, the lack of nurturing, this absence of availability of 24 any parent, parental figure.” (Id. at 15.) 25 According to Dr. Stewart, these conditions “act synergistically,” like a “perfect 26 storm,” “where you have the posttraumatic stress and the depression and the attention 27 deficit hyperactivity disorder, . . . coupled with the fact that he was exposed to significant 28 neurotoxins as a fetus, the fact that he had this very depraved upbringing . . . all contributed - 63 - 1 to his brain damage.” (Id. at 16.) Dr. Stewart explained that Speer’s brain is damaged in 2 the way that it “processes information and . . . uses that information to have him make 3 decisions and determine his behavior.” (Id.) 4 Dr. Stewart next testified about the criteria for a diagnosis of PTSD and the facts 5 about Speer’s life that satisfied those criteria. As described above when discussing Dr. 6 Parrish’s testimony on the same subject, Speer experienced several traumatic events that 7 meet the first criteria, including witnessing his step-brother get shot, being beaten by his 8 parents, and being sexually abused. (Id. at 19–26.) 9 The next criteria, reexperiencing the trauma, was satisfied because Speer reported 10 seeing things, having bad dreams, being depressed, and experiencing “intrusive thoughts 11 of sexual abuse.” (Id. at 26–27.) Speer also acted out sexually as a child at school, made 12 sexual remarks, and grabbed other children while in juvenile detention. (Id. at 30–31.) He 13 also acted out violently, hitting other children with various objects, poking another boy 14 with a knife, and hitting his great-grandmother in the face. (Id. at 32–33.) 15 Dr. Stewart testified that the next PTSD criterion, avoidance, was satisfied by 16 Speer’s efforts to change the subject when speaking with Dr. Stewart and Speer’s 17 “disassociative episodes . . . where he would still be there physically in the room with me, 18 but psychologically, he would be gone.” (Id. at 35–36.) Another method of avoidance was 19 Speer’s substance abuse, beginning at age five with marijuana and alcohol use. (Id. at 36.) 20 Dr. Stewart noted that Speer overdosed on methadone at age 13 and used crack cocaine 21 and methadone as a young adolescent. (Id. at 37.) 22 A finding of Hyperarousal, the next criterion, was supported by DOC records 23 showing Speer had been prescribed an antidepressant to control “intrusive memories, 24 hyperarousability, decreased sleep, and dysphoria.” (Id. at 38.) The disturbance lasted more 25 than a month, satisfying another criteria for a PTSD diagnosis. (Id. at 39–40.) Dr. Stewart 26 then explained that Speer’s symptoms interfered with his ability to function, causing 27 significant impairment in several areas of his life, thus satisfying the final PTSD criterion. 28 (Id. at 41.) - 64 - 1 Dr. Stewart next testified that he considered whether Speer “suffered from any 2 personality disorders” and determined that he did not. (Id. at 45–46.) While acknowledging 3 that Speer had been diagnosed with conduct disorder as a child, Dr. Stewart opined that 4 Speer’s behavior was the “understandable” product of “his family and the drug abuse and 5 the lack of parental involvement” and “the abuse that went on.” (Id. at 48.) 6 Dr. Stewart testified that the circumstances of Speer’s involvement in the Soto 7 murder reflected his impaired brain function. (Id. at 50.) These circumstances included the 8 “funny little code” Speer used to communicate over the phone, his difficulty “weighing 9 consequences,” and his inability to “respond to the changing environment.” (Id.) All of 10 these factors were “absolutely consistent with someone who has severe brain damage.” (Id. 11 at 51.) 12 13 Finally, Dr. Stewart testified that Speer’s PTSD, depression, substance abuse, and ADHD are all treatable conditions. (Id. at 51.) 14 Dr. Stewart’s report was also admitted at trial. (See Doc. 23-10, Ex. 51.) 15 b. 16 Counsel called three lay witnesses in mitigation, relatives who detailed the neglect, 17 18 Lay witnesses violence, and dysfunction of Speer’s childhood. i. Chris Womble 19 The first witness was Speer’s half-brother Chris Womble. When shown a 20 photograph of his mother, Sabrina Womble, he identified the track marks on her arm 21 caused by shooting heroin. (RT 2/5/07 at 8.) He testified that he, his mother, his father, and 22 Speer all used heroin from November 2001 to March 2002 when Chris and Speer were 23 arrested for the Soto burglary. (Id. at 9.) He and Speer used heroin every day, his parents 24 four or five times a week. (Id.) His parents were also enrolled in a methadone program; 25 they had received methadone daily for 25 or 30 years. (Id. at 10.) 26 Chris testified that he and Speer were feeling the symptoms of withdrawal on the 27 morning of the burglary, which they carried out in order to steal property that could be sold 28 for money to buy drugs. (Id. at 17–18.) - 65 - 1 Sabrina’s routine was to get up and go to the methadone clinic, then come back and 2 sleep for most of the day, “not really make no meals or nothing.” (Id. at 24.) Chris testified 3 that the houses his family lived in were always filthy. (Id. at 25–26.) 4 Sabrina did not care what her children were doing the majority of the time. (Id. at 5 34.) When she did get upset, she would “slug us with her fist, maybe hit us with a broom.” 6 (Id. at 34.) The children were not involved in extracurricular activities. (Id. at 35–36.) 7 Chris testified about Speer’s behavior from 6 to 11 years old. He recalled that Speer 8 “would be in all hours of the night, carrying guns maybe, stolen bikes, stuff like that.” (Id. 9 at 36–37.) In response Sabrina would hit Speer “with her fist, with a belt, maybe wait until 10 he was asleep and call the police on him to have him removed from the home, or just take 11 him to a relative and dump him off there.” (Id. at 37.) Chris recalled an incident when 12 Sabrina was “slugging Paul in the face, talking about that she wanted the demons to leave 13 [him]. And Paul was just sitting there growling and spitting at her.” (Id. at 39.) 14 Chris testified that he and his sister witnessed a man raping Sabrina. (Id. at 41–42.) 15 Sabrina then had an “emotional breakdown where she flipped out in the home.” (Id. at 42.) 16 She physically punished the children, striking Speer with a fist, belt, or broom. (Id. at 46.) 17 She punished Speer more severely than his brothers, hitting him longer, harder, and more 18 frequently. (Id.) Bill Womble, Brian’s father and Speer’s stepfather, would also discipline 19 Speer more severely, striking him with a fist or belt. (Id. at 48.) He punished Speer for “not 20 being his kid, and he didn’t want to have to deal with Paul.” (Id. at 48–49.) 21 Chris testified that he and his siblings were dressed poorly for school, wearing 22 stained shirts and shoes and jeans with holes. (Id. at 50.) Chris and Speer would steal 23 clothes off clotheslines or from stores. (Id. at 51.) Sabrina knew they were stealing but she 24 did not want to spend money on new clothes; she needed the money to buy “[h]eroin, 25 valium, things like that.” (Id. at 52.) 26 Chris described a pattern of improved behavior when Speer returned home from 27 placement in juvenile facilities, but “[w]ithin a couple weeks” his conduct would 28 deteriorate and “he’d be staying out late, absconding from probation, maybe running - 66 - 1 around with [his maternal uncle] Steve [Case] late hours of the night, . . . having drugs with 2 him, maybe having stolen bikes and things like that.” (Id. at 57.) Chris saw Steve, who was 3 around 30 at the time, and Speer, then 13, injecting speed. (Id. at 59.) Speer and Steve 4 brought stolen goods into the home, including VCRs, bikes, and guns. (Id. at 61.) 5 6 Chris testified that his father never took him hunting, fishing, or to sporting events. (Id. at 62–63.) Their mother never read them a bedtime story. (Id. at 72.) 7 Chris testified that their parents fought verbally and, a couple times a month, 8 physically. His mother would “slug” his father with a fist or strike him with other objects, 9 like a high-heeled shoe. (Id. at 72–73.) They argued about money and drugs. (Id. at 73.) 10 Chris testified that there was “talk in the family” about his maternal grandmother 11 being a witch with special powers. (Id. at 74.) Sabrina herself was clairvoyant and knew 12 about events before they happened. (Id. at 74–75.) 13 14 15 16 17 18 19 Chris described an incident when their mother gave Speer his birth certificate and threw him out of the house. (Id. at 75–76.) Speer was 11 or 12 at the time. (Id. at 76.) Finally, Chris testified that he loved Speer and it would “tear him up” for Speer to be sentenced to death. (Id. at 78.) ii. Bill Womble Speer’s stepfather, Bill Womble, testified that he married Sabrina in 1981, when he was 30, she was 24, and Speer was two or three. (RT 2/22/07 at 10, 13.) 20 Womble had been addicted to heroin and other narcotics since he was 18. (Id. at 21 12.) Womble was aware that at the time of their marriage Sabrina had been using drugs, 22 including heroin, dilaudid, and valium, “for some years.” (Id.) Womble and Sabrina both 23 injected heroin. (Id. at 12–13.) Sabrina slept a lot from all the valium she took. (Id. at 15.) 24 Speer once came home from school to find her asleep and tried, unsuccessfully, to wake 25 her by flooding the apartment. (Id.) 26 Speer liked to spend time with his paternal grandfather, George, who was also an 27 intravenous heroin and dilaudid user. (Id. at 17.) Steve Case, Speer’s uncle, also lived with 28 George. (Id. at 18.) He too was a dilaudid user. (Id. at 18.) - 67 - 1 Speer’s biological father, Mike Speer, did not want to spend time with him. (Id. at 2 18–19.) When Speer did spend time with his father’s family he was neglected. (Id. at 19.) 3 Speer wanted to see his father but when visits were arranged Mike Speer would cancel at 4 the last minute, leaving Speer disappointed. (Id. at 20–21.) 5 6 7 8 Sabrina had a temper and would push, hit, and throw things at Womble. (Id. at 22– 23.) They argued in front of the children. (Id. at 23.) Sabrina told Womble she had a family history of witchcraft. She performed chants and once angrily accused Womble and Speer of trying to cast a spell on her. (Id. at 24.) 9 Sabrina’s mood fluctuated depending on whether she had access to valium; she 10 would become “extremely angry” when she ran out. (Id. at 25.) Womble believed she also 11 suffered from depression. (Id. at 26.) 12 Womble testified that Speer was hyperactive. In one incident, Speer was six or seven 13 and had been misbehaving all day, including “using the F word.” (Id. at 30.) When Womble 14 arrived home from work, Sabrina insisted he discipline Speer. (Id.) Womble swatted him 15 on the butt with his belt. (Id.) The same thing happened the next day and Womble “just 16 flipped out and started swatting him on the butt” and asking Speer “why do you keep doing 17 it over and over?” (Id. at 31.) He ended up leaving marks on Speer’s back. (Id.) He 18 acknowledged that he might have hit Speer with his fist. (Id. at 32.) According to Womble, 19 Speer was “very smart” and “knew how to get people mad,” which was a “daily 20 occurrence.” (Id.) The household was “chaotic.” (Id.) 21 22 Womble testified that in 1985 Speer disclosed that he had been sexually molested by his aunt, who forced him to perform oral sex on her. (Id. at 33–34.) 23 Womble testified that when Chris was old enough to accompany him and Speer on 24 outings, Speer began to misbehave because he wanted Womble’s complete attention. (Id. 25 at 34–35.) He was “constantly breaking things, just always trying to get attention.” (Id. at 26 36.) He would use obscenities at four or five years old. (Id.) 27 Womble testified that he remembered an incident from 1986 when Speer, at age 28 seven, exposed himself in school. (Id. at 37–38.) Speer’s grandmother told one of his - 68 - 1 teachers that Speer was “emotionally disturbed.” (Id. at 38.) She told Womble the same 2 thing, and that Speer needed to be disciplined, but Womble and Sabrina never followed 3 through. (Id. at 39–40.) Sabrina ignored reports stating the family needed counseling or 4 that Speer needed to be evaluated. (Id. at 43.) Womble never involved Chris and Speer in 5 sports, outdoor activities, or the Scouts. (Id. at 44.) 6 Womble testified that there were CPS contacts in 1988 and that police officers came 7 to his house “on numerous occasions, talking to [Womble] or Sabrina about Paul.” (Id. at 8 48.) Womble agreed that Speer was “out of control and incorrigible” in July 1988. (Id. at 9 50.) 10 Womble testified about court-ordered counseling sessions that he and Sabrina 11 attended. Womble would try to hide Sabrina’s drug use from counsellors and try to make 12 the family look better than it was. (Id. at 54.) He did not want to contradict Sabrina or 13 otherwise upset her, or “get between her and the counselor.” (Id. at 53–54.) 14 In late 1988 CPS removed Speer from the home. (Id. at 55–57.) He had red welts 15 on his neck and stomach, which Womble acknowledged he was responsible for. (Id. at 57.) 16 Sabrina was the dominant partner in the marriage, and because she spent much of 17 her time sleeping due to the effects of valium or heroin, the children were unsupervised 18 and roamed the streets at night. (Id. at 60–62.) 19 Womble acknowledged other incidents of domestic violence, where Speer was 20 either the victim or the perpetrator. He recalled that Speer “was taken several times to 21 juvenile.” (Id. at 65–66.) 22 Because Sabrina wanted Speer out of the house, he spent many weekends with one 23 of his grandparents. (Id. at 66.) When he returned, his behavior was worse because of all 24 the attention he had received. (Id. at 66–67.) 25 Speer was close to his grandfather George, who died when Speer was 12 or 13. (Id. 26 at 67.) After George’s death, Speer grew closer to his uncle Steve Case, Sabrina’s brother. 27 (Id.) Case was around 40 at the time and a drug user; Speer was 12. (Id. at 28.) They 28 committed burglaries together. They broke into the house of Womble’s neighbor—“Steve - 69 - 1 put Paul through a window and had him take some guns or silver coins that he knew was 2 in the house.” (Id. at 68.) Case also “got Paul to steal a .357 magnum from [Womble’s] 3 own brother.” (Id. at 68–69.) 4 5 Around this time Speer, age 12, was hospitalized after overdosing on methamphetamine he had injected. (Id. at 70–71.) 6 From 1989 to 1992, Speer “went to juvenile court several times.” (Id. at 71.) 7 Womble recalled that one of the probation officers or psychologists who saw Speer 8 explained that Speer needed “structure and control.” (Id.) Sabrina opposed 9 recommendations that Speer be placed in special education. (Id. at 75.) 10 Speer was prescribed the maximum does of Ritalin but it made him “high as a kite,” 11 so Sabrina discontinued the drug without consulting a physician. (Id. at 76 .) Steve Case 12 took the leftover Ritalin. (Id. at 77.) 13 Womble testified about the incident in which Chris caught a man attacking Sabrina 14 in her bedroom. (Id. at 82.) After the assault Sabrina was “really out of it” for a couple 15 weeks to a month, “like she was possessed by a demon.” (Id. at 86.) She attacked Womble 16 and Speer with a baseball bat. (Id. at 83.) She chased Speer, then 14, around with the bat 17 until “she ran him off” and he went to his grandmother’s house. (Id. at 84.) In another 18 incident Sabrina was taken to jail after attacking Womble with a fork. (Id. at 84–85.) 19 Womble moved the children out of the home. (Id. at 85.) Sabrina was voluntarily 20 committed for three days. (Id.) 21 22 Womble testified that doctors had used a forceps to deliver Speer, which left a mark that was still visible when he was three. (RT 2/26/07, a.m., at 50.) 23 Womble testified that between ages 13 and 18 Speer was committed to the Adobe 24 Mountain juvenile facility four or five times. (Id. at 64–65.) When he returned home, the 25 conditions in the household had not improved with respect to Sabrina’s “emotional state” 26 and her drug use and inability to discipline Speer. (Id. at 65–66.) 27 28 At one point when Speer was 18 he returned home to live with Womble and Sabrina. (Id. at 68.) They all used drugs together, including sharing needles. (Id.) - 70 - 1 Speer was arrested and went to prison in 1998 for three or four years. (Id. at 69–70.) 2 Womble visited him once; Sabrina did not visit him at all. (Id. at 70.) After being released 3 from prison, Speer stayed with Al Heitzman for a month before moving back home with 4 Womble, Sabrina, Delilah, Chris, and Brian. (Id. at 71–72.) They were all using heroin, 5 Sabrina was still taking valium, and Chris was also using crack and “getting into 6 burglarizing cars.” (Id. at 72–73.) Brian eventually moved out and went to stay with 7 Heitzman. (Id. at 74.) 8 9 10 11 Womble testified that Chris had been shot twice, the first time in the leg, the second time, a drive-by shooting, in the face. (Id. at 77.) Womble acknowledged that his children were “raised in an environment where violence was a way of dealing with problems and disputes.” (Id. at 86.) 12 Womble testified that Speer receiving the death penalty would affect him negatively 13 because he still loved Speer. He pointed out that Sabrina was “just about suicidal about 14 this.” (RT 2/26/07, p.m., at 8.) She could not face what was going on and “doesn’t want to 15 live through it.” (Id. at 9.) Speer’s half-sister Delilah also loved Speer and was “just not 16 facing what is going on.” (Id.) Counsel then showed a video depicting Speer’s son, Cedric, 17 in the apartment they all shared in 2000. 18 iii. Carla Lujan 19 Carla Lujan, Speer’s cousin on his father’s side, testified that Speer stayed with her 20 family in 1988 when he was nine and she was eleven. (RT 2/20/07 at 146.) Lujan, now a 21 lawyer, explained that her mom, Sue, was fond of Speer and offered to take him in when 22 Sabrina said she was going to give Speer away. (Id. at 147.) Speer lived with them for a 23 couple months. (Id.) Lujan testified that Speer’s house was “always trashed out, a big 24 mess.” (Id.) Speer wore “raggedy” clothes before he came to live with Lujan’s family. (Id. 25 at 148.) 26 Speer was “pretty hyperactive” but he was “very good” and participated in Bible 27 studies with family. (Id. at 147–48.) He and Lujan played together in a treehouse in the 28 backyard, went swimming, and played video games. (Id. at 148–49.) Speer told Lujan that - 71 - 1 his mom hated him and didn’t want him and said so in front of him. (Id. at 149.) She “put 2 him down” and yelled at him “constantly.” (Id. at 150.) 3 Sue took Speer to counseling sessions. (Id. at 151.) 4 Lujan testified that Speer, in contrast to his behavior at his own home, was “very, 5 very good in our home.” (Id. at 152.) He had “very good manners . . . for such a young 6 age.” (Id.) 7 Lujan testified that Sabrina came late one night to take Speer home. (Id. at 153.) She 8 needed Speer to live at home or she would lose out on support money. (Id.) Lujan was 9 upset because Speer “was like a brother to her.” (Id.) 10 Lujan testified that Speer was “very active” when living at home and Sabrina 11 “constantly yelled at him and told him to knock it off.” (Id. at 153–54.) While living at 12 Lujan’s house, Speer was “very calm.” (Id. at 154.) 13 Lujan also testified about Speer’s half-sister, Delilah. She told Lujan that she had 14 dropped out of school and become a prostitute at age 13. (Id. at 157.) She was a drug user 15 and had gotten a sexually transmitted disease. (Id.) 16 17 Finally, Lujan testified that she loved Speer and that he was important to her and other members of her family and they cared what sentence he received. (Id. at 161.) 18 In rebuttal, the State called one witness, Dr. Michael Bayless. As discussed in detail 19 below, Dr. Bayless diagnosed Speer with antisocial personality disorder and dysthymia, 20 with little to no cognitive impairment. 21 In his lengthy closing argument, defense counsel traced Speer’s development and 22 the hardships and risk factors he encountered, emphasizing the dysfunctional home in 23 which Speer grew up; the fact that his mother used heroin and methadone while she was 24 pregnant with Speer and that both parents were addicts; the physical and sexual abuse Speer 25 experienced; his own extensive drug use; and his depression, ADHD, and learning and 26 emotional disabilities, for which he never received adequate treatment. (See, e.g., RT 27 3/26/07 at 81–140.) Without those circumstances, counsel argued, the murder would not 28 have occurred. - 72 - 1 c. 2 Speer attached several declarations to his PCR petition. Mitigation specialist David 3 Wilcox attested that he did not prepare a chronology of Speer’s life. (PCR Pet., Ex. 16, ¶ 4 4.) He did not interview Speer’s teachers, CPS workers, probation employees, DOC 5 employees, or mental health evaluators/counselors. (Id., ¶ 7.) He did not interview Sabrina 6 Womble because he “felt her heroin abuse did not make her a suitable witness for the 7 defense.” (Id., ¶ 7.) He interviewed Bill Womble twice and spoke to Speer’s biological 8 father, Mike Speer, on the phone. Mr. Speer “was not receptive to being interviewed or 9 cooperating with the defense team.” (Id., ¶ 9.) Wilcox had a “very poor relationship” with 10 PCR evidence Speer and had difficulty “establish[ing] good communication and trust.” (Id., ¶ 10.) 11 Sabrina Womble attested that she “used significant amounts of heroin throughout 12 [her] pregnancy with Paul” and he “was born heroin addicted.” (PCR Pet., Ex. 17, ¶ 3.) 13 She introduced her sons to heroin so they would not have to “run across the freeway” to 14 buy methamphetamine. (Id., ¶ 7.) Sabrina stated that Speer’s biological father “was not 15 involved in his life or in this case.” (Id., ¶ 13.) She admitted she was “not a good mother.” 16 (Id., ¶ 15.) She also stated that she was “not allowed to testify in Paul’s mitigation hearing” 17 and did not have a “good relationship” with the defense team. (Id., ¶¶ 2, 6.) 18 Debra Corral, Speer’s paternal aunt, attested that she observed fresh track marks on 19 Sabrina’s arms and saw her shooting heroin when she was pregnant with Speer. (PCR Pet., 20 Ex. 18, ¶ 6.) According to Debra, all of Sabrina’s children were born addicted to heroin 21 and methadone. (Id., ¶ 7.) The day Speer was born, Debra saw his “arms and legs jerking 22 and he was ‘dry crying.’” (Id.) He spent four or five days in the hospital. (Id.) Debra denied 23 sexually abusing Speer, stating that Sabrina used the allegation to try to extort money from 24 her parents. (Id., ¶ 15.) She was never alone with Speer and he never stayed with her 25 overnight. (Id.) Speer’s legal team never spoke with her. (Id., ¶ 19.) 26 Diane Hauer was a secretary at Speer’s elementary school. She knew that his parents 27 kicked Speer out of the house and that he also ran away from home. (PCR Pet., Ex. 19, ¶ 28 3.) Diane visited Speer’s home and found it so filthy she “dared not sit down.” (Id., ¶ 4.) - 73 - 1 She knew from his school records that Speer “was a slow student but did not reach the level 2 of mental retardation.” (Id., ¶ 5.) Diane was not contacted by Speer’s defense team. (Id., ¶ 3 6.) 4 Veronica Trujillo, the mother of Speer’s child, attested that Speer “would steal so 5 that his parents would have money for drugs. His parents sent [him] to get the drugs or 6 money or else they kicked him out of the house.” (PCR Pet., Ex. 20, ¶ 4.) Veronica’s 7 mother, Lilly, attested that Speer did not have a relationship with his biological father. 8 (PCR Pet., Ex. 21, ¶ 4.) She noticed that Speer’s mother slept all day and was up all night; 9 the parents had a “weird lifestyle” and used drugs. (Id., ¶ 7.) They would have their son 10 arrested but he would always return to the family home. (Id., ¶ 8.) Speer’s mother “put 11 restraining orders on [him] and threw him out of the family home. [She] then told police 12 [he] was abusive.” (Id., ¶ 10.) Lilly suspected that the parents sent Speer out at night to get 13 drugs for them. (Id., ¶ 9.) 14 Robin Storm attested that she completed a psychological evaluation of Paul Speer 15 for the school district. (PCR Pet., Ex. 22, ¶ 1.) She was not contacted by the defense team. 16 (Id., ¶ 2.) She measured Speer’s IQ as ranging from 76 to 88. (Id., ¶ 3.) She diagnosed him 17 at age 11 as “seriously emotionally disturbed.” (Id., ¶ 4.) She opined that Speer was 18 “handicapped, emotional disability [sic] based on his depression” and should have been 19 placed in a special education classroom. (Id., ¶ 7.) 20 Analysis 21 In alleging ineffective assistance of counsel at sentencing, Speer contends that 22 “[o]f primary concern is trial counsel’s failure to interview or present the testimony of 23 key lay witnesses who would have substantiated Speer’s claims of physical and sexual 24 abuse, multigenerational addiction and mental illness, trauma, institutional failure, and 25 substance abuse.” (Doc. 13 at 140.) These witnesses include family members, a former 26 juvenile probation officer, and former neighbors, teachers, acquaintances, and school 27 officials. (Id.) According to Speer, “[p]erhaps the biggest error was trial counsel’s failure 28 to present the testimony of Speer’s mother.” (Id. at 141.) - 74 - 1 In these habeas proceedings Speer attempts to support this claim with a new set of 2 declarations, executed in 2018. Attached to his notice of request for evidentiary 3 development are declarations from his aunt Debra Corral; his step-uncle John Womble; 4 his biological father, Michael Speer; his stepfather, William Womble; his great aunt Doris 5 Donithan; his step-aunt Sue Riley; and his juvenile probation officer, Scharlene 6 DeHorney.22 (See Doc. 23, Ex’s 9–15.) 7 Because this aspect of Claim 14 was decided on the merits by the state PCR court, 8 the Court’s review under AEDPA is “limited to the record that was before the state court. 9 . . .” Pinholster, 563 U.S. at 181; see Ayala v. Chappell, 829 F.3d 1081, 1102 (9th Cir. 10 2016) (refusing to consider evidence that specific individuals were willing to testify on 11 petitioner’s behalf when the individuals weren’t named in the claim as it was presented 12 to the state supreme court); Murray (Robert), 745 F.3d at 998. Therefore, the Court cannot 13 consider these new declarations in its analysis of this claim. 14 The PCR court, in denying the claim on the merits, first noted that defense counsel 15 had cited 23 mitigating circumstances at sentencing and that the Arizona Supreme Court, 16 in its independent review, found that the following circumstances had been proved by a 17 preponderance of the evidence: 18 19 Defendant suffered a difficult childhood; he suffered physical and sexual abuse during childhood; he habitually abused drugs and alcohol beginning in his early teens and eventually became a heroin addict; he presented evidence 20 21 22 23 24 25 26 27 28 22 Also attached are documents, including a 1996 newspaper article and scientific papers, purporting to support the allegation that as a child Speer may have been exposed to a toxin, trichloroethylene (TCE), which had contaminated the drinking water in parts of Phoenix. (Doc 23, Ex’s 35–40.) Speer alleges that trial counsel performed ineffectively in failing to investigate Speer’s potential exposure to TCE. (Doc. 13 at 15–16, 145–46.) This is a new claim, raised for the first time in Speer’s habeas petition. Contrary to Speer’s argument (Doc. 13 at 256), the claim’s default is not excused by the performance of PCR counsel because the claim itself is speculative and conclusory. See Atwood, 870 F.3d at 1060; Runningeagle, 825 F.3d at 982; see also Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (conclusory allegations of ineffective assistance of counsel do not warrant habeas relief). In addition, the Court is not permitted to consider the new evidence, Ramirez, 142 S. Ct. 1718, leaving the claim wholly without support. - 75 - 1 2 3 4 5 6 7 8 9 10 11 12 13 of mental health issues and a low IQ; and he proved that the death penalty would have negative effects on his family. (ME 5/20/15 at 17–18.) The PCR court then outlined the evidence Speer argued counsel should have presented: Now, Defendant seeks to provide additional information about his background, from family members (mother, estranged father, paternal aunt to testify about his heroin withdrawal as a newborn); teachers (fourth grade teacher, school secretary to testify Defendant was “not from a healthy happy home,” school psychologist to testify that Defendant’s IQ was measured at 11 as between 76 and 88, and that he was seriously emotionally disturbed); and others (girlfriend and mother of his son, as well as his girlfriend’s mother, to testify to Defendant’s mother’s involvement in his drug use, including using Defendant and money earned from Defendant prostituting himself to procure drugs for herself). (Id. at 18.) 14 In addition to this information, the PCR court considered Speer’s “‘love of family’ 15 based on statements made in the 22 available tapes.” (Id.) The court gave the evidence 16 “little weight” as mitigation, however, because “Defendant was simultaneously plotting 17 the murder of the victims to a previous crime and pressuring his half-brother to provide 18 assistance.” (Id.) The court also noted that “the jury was presented with evidence of Speer’s 19 love of his family as Sabrina Womble, Defendant’s mother, testified during the guilt phase 20 that Defendant repeatedly talked to her about how much he loved her.” (Id.) 21 The court then noted that “trial counsel spent almost three weeks presenting a great 22 deal of evidence of Defendant’s difficult childhood and dysfunctional home life and 23 information about his mental health.” (Id.) Counsel presented this mitigating evidence 24 “through then-available family members as well as relying heavily on the defense mental 25 health experts.” (Id.) 26 The court next considered Speer’s argument that counsel should have presented 27 Sabrina Womble as a mitigation witness. Sabrina “contend[ed] that she could have 28 provided relevant evidence of her heroin use during pregnancy, how she introduced her - 76 - 1 son to heroin, how she was a drug addict, how Defendant’s natural father was not involved 2 in his life, and how she was not a good mother.” (Id.) The court rejected this as a grounds 3 for ineffective assistance, explaining: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 The problem is that Sabrina Womble was called by the State as a witness in the guilt phase of the trial. During testimony, she minimized her use of heroin, denying she was an addict her entire adult life, which is in stark contrast to her Declaration attached as Exhibit 17 to the Petition. There was a sound strategic reason for trial counsel not to call Sabrina Womble in the penalty phase: she lacked credibility. Among other things, she testified that she denied knowing her husband was on probation, which is difficult to believe; she said she was asleep at the time of the March 14 burglary and denied seeing the Defendant and co-Defendant in her apartment with stolen items; she stated she was too high to remember anything; she was impeached at trial with her prior inconsistent statements; and Defendant was convicted of witness tampering as a result of inducing her to testify falsely. Not only would Sabrina have lacked credibility with the jury, the mitigation specialist declared that Sabrina’s heroin abuse did not make her a suitable witness for the defense. . . . (Id. at 18–19.) The court determined that, even without the additional witnesses Speer argued should have been called, “the jury heard ample evidence of mitigation”: 25 As the Supreme Court determined, trial counsel presented by way of mitigation the content of much of the evidence Defendant now wants to add, not necessarily by way of specific example, but illustrating generally that Defendant had a troubled childhood and dysfunctional home life. This included: Sabrina Womble’s drug use and her abuse and neglect of Defendant; Defendant’s early exposure to drugs and history of substance abuse; he witnessed his mother being raped; he was physically abused by his step-father; he was abandoned by his own father; he was sexually abused by a family member; he offered testimony from mental health professionals about how he suffered from PTSD, was depressed, and had a low IQ; how he was forced to prostitute himself at age 12 for money to be used to buy drugs; and how he had moderate to severe cognitive impairment. 26 (Id. at 19.) The court found that “[i]t was not unreasonable for trial counsel to rely heavily 27 on mental health professionals, instead of Speer’s family members” because “[t]he 28 additional family members . . . would merely have offered cumulative evidence. Since they 18 19 20 21 22 23 24 - 77 - 1 have a natural bias in favor of Defendant, the weight of their purported testimony would 2 not in the Court’s view have led to a different outcome.” (Id.) 3 The court concluded, therefore, that “trial counsel’s performance was reasonable 4 under the circumstances, was not deficient, and Defendant was not prejudiced. In the 5 Court’s view, there is not a reasonable probability that, absent the errors Defendant alleges, 6 the sentencer . . . would have concluded that the balance of aggravating and mitigating 7 circumstances did not warrant death.” (Id.) 8 Finally, the court found that “given the evidence that Defendant conspired with his 9 brother to eliminate witnesses to a previous crime, which is a particularly egregious act, 10 the Court does not believe that additional evidence of Defendant’s background and 11 childhood would have resulted in leniency” and therefore “Defendant was not prejudiced 12 by any deficiency in the mitigation investigation.” (Id. at 19–20.) 13 Speer argues that this decision was an unreasonable application of clearly 14 established federal law and based on an unreasonable interpretation of the facts. (Doc. 13 15 at 146–50.) These arguments fail, as set forth next. 16 a. 17 Speer contends that the PCR court unreasonably applied clearly established federal 18 law by finding it was reasonable for defense counsel “to rely heavily on mental health 19 professionals, instead of Speer’s family members.” (Doc. 13 at 147.) Speer asserts that 20 “[i]n light of the state court record, it was in fact patently unreasonable for trial counsel to 21 rely solely on experts and not enlist the many lay witnesses who were available to testify.” 22 (Id.) This argument is not persuasive. First, of course, counsel did not rely “solely” on 23 expert witnesses; in fact, they presented as many lay witnesses as experts. Application of clearly established federal law 24 Nevertheless Speer contends that the missing “percipient witnesses” would have 25 provided supporting evidence regarding “sexual abuse; opioid addiction at birth; genetic 26 predisposition to mental illness and addiction; and multigenerational and complex trauma.” 27 (Id.) According to Speer, such testimony was necessary to corroborate his self-reporting 28 regarding these issues and to counter the prosecution’s attempt to portray him as a - 78 - 1 “malingerer and manipulator” “who could not be relied upon to tell the truth.” (Id. at 141.) 2 This argument does not withstand scrutiny. 3 Speer’s expert witnesses, particularly Dr. Miller, addressed each of the issues Speer 4 contends should have been corroborated by additional testimony from lay witnesses. With 5 respect to Speer’s opioid addiction at birth, Dr. Miller testified that in a police report 6 Speer’s biological father stated that Sabrina Womble used heroin during her pregnancy. 7 (RT 2/6/07 at 48.) He further testified that information about Sabrina Womble’s natal drug 8 use had been provided by “various sources” and confirmed again by Speer’s biological 9 father immediately prior to Dr. Miller’s testimony. (RT 2/6/07 at 72.) Lay testimony was 10 not needed to provide additional support for this factor. The Arizona Supreme Court found 11 that Speer had proved “his mother used heroin during pregnancy.” Speer, 221 Ariz. at 464, 12 212 P.3d at 802. 13 In addition, Sabrina Womble, as the PCR court found, would not have been a 14 credible witness, given her inconsistent reports about the extent of her drug use. Speer’s 15 aunt Debra Corral, according to her PCR declaration, could have testified about her 16 observation of Speer’s condition as a newborn, but she also denied Speer’s allegation of 17 sexual abuse, reducing her value as a mitigation witness. (See PCR Pet., Ex. 18.) Finally, 18 of course, Speer could not corroborate his mother’s drug use during pregnancy, so his 19 credibility on that question was not at issue. 20 With respect to the sexual abuse Speer allegedly experienced, he offers no witnesses 21 who could have corroborated his self-reporting of the incidents; and, again, the Arizona 22 Supreme Court found that sexual abuse was a mitigating factor. Speer, 221 Ariz. at 464, 23 212 P.3d at 802. 24 Speer does not specify what the missing lay witnesses would have testified about to 25 corroborate his “genetic predisposition to mental illness and addiction [] and 26 multigenerational and complex trauma.” (Doc. 13 at 147.) As described above, the lay 27 witnesses who did testify offered substantial evidence of multi-generational drug use, 28 violence, criminality, and dysfunction, and this evidence was the grounds for much of Dr. - 79 - 1 Miller’s expert testimony about risk factors. In addition, Dr. Parrish testified about Robin 2 Storm’s evaluation of Speer. See McGill v. Shinn, 16 F.4th 666, 694–96, 698 (9th Cir. 3 2021) (rejecting ineffective assistance claim where “the defense team uncovered a ‘not 4 insignificant’ amount of mitigation evidence that spanned decades of McGill’s life and 5 presented a comprehensive picture to the jury”). 6 Speer next argues that the PCR court unreasonably determined that the omitted 7 evidence would have been cumulative to the evidence that was presented. (Doc. 13 at 147.) 8 The PCR court supported its determination that “the jury heard ample evidence of 9 mitigation” (ME 5/20/15 at 19) by noting that the Arizona Supreme, in its independent 10 review, found that a number of mitigating circumstances had been proved. See Speer, 221 11 Ariz. at 464–65, 212 P.3d at 802–03. The omitted testimony—from Sabrina Womble, 12 Debra Corral, Diane Hauer, Veronica and Lilly Trujillo, and Robin Storm—would have 13 been cumulative to the evidence offered through Speer’s family members and the experts, 14 evidence which the Arizona Supreme Court found sufficient to prove, as mitigating 15 circumstances, Sabrina Womble’s heroin use during pregnancy, the family’s drug use, 16 Speer’s depression and low IQ, his chaotic and dysfunctional childhood, his placements 17 outside the home and extensive experience with the juvenile justice system, his early drug 18 use, and the physical and sexual abuse he suffered. 19 The PCR court did not unreasonably apply Strickland when it determined that the 20 omission of cumulative evidence did not support a finding that counsel performed 21 ineffectively. The omitted evidence “barely . . . alter[s] the sentencing profile presented” 22 to the jury. Strickland, 466 U.S. at 700; see Leavitt v. Arave, 646 F.3d 605, 615 (9th Cir. 23 2011) (explaining that “cumulative evidence is given less weight because it is not as likely 24 to have affected the outcome of the sentencing”). 25 “[T]o establish prejudice, the new evidence that a habeas petitioner presents must 26 differ in a substantial way—in strength and subject matter—from the evidence actually 27 presented at sentencing.” Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005). The Ninth 28 Circuit has consistently declined to find prejudice where the omitted mitigating evidence - 80 - 1 was cumulative to the evidence presented. See Benson v. Chappell, 958 F.3d 801, 833 (9th 2 Cir. 2020) (finding no prejudice where new evidence of torture and sexual abuse was 3 “cumulative” to evidence of petitioner’s “horrendous childhood”); Schurz v. Ryan, 730 4 F.3d 812, 815 (9th Cir. 2013) (rejecting claim that counsel performed ineffectively by 5 failing to present mitigating evidence of petitioner’s “drug abuse and dysfunctional family 6 life” where counsel “extensively covered these topics in his sentencing memorandum, 7 complete with an attached psychological evaluation”); Cunningham v. Wong, 704 F.3d 8 1143, 1161 (9th Cir. 2013) (explaining that the “primary mitigation value” of testimony 9 that petitioner was loved by his family “was adequately presented at the penalty phase” so 10 additional evidence was cumulative); Rhoades v. Henry, 638 F.3d 1027, 1051 (9th Cir. 11 2011) (finding no prejudice despite the fact that new evidence “exceed[ed] what was 12 uncovered and presented by trial counsel” in part because “much of the newly adduced 13 evidence is cumulative”); Babbitt, 151 F.3d at 1176 (finding no prejudice where evidence 14 omitted at sentencing was “largely cumulative of the evidence actually presented”); 15 Woratzeck v. Stewart, 97 F.3d 329, 336–37 (9th Cir. 1996) (finding no prejudice from 16 counsel’s failure to investigate or call additional witnesses at sentencing because all the 17 information the witnesses would have presented was contained in the presentence report). 18 The omitted mitigating evidence from Speer’s mother and aunt and other lay 19 witnesses was not different in strength and subject matter from the evidence counsel did 20 present. Speer was not prejudiced under Strickland by the omission of this cumulative 21 evidence. 22 The cases cited by Speer do not support his claim. In Stankewitz v. Woodford, 365 23 F.3d 706 (9th Cir. 2004), for example, counsel presented “minimal” mitigating evidence, 24 “consisting of testimony from six witnesses (only four of whom were actually in court) and 25 covering only approximately 50 pages in the transcript.” Id. at 716. Counsel failed to retain 26 an investigator, failed to interview Stankewitz’s “teachers, foster parents, psychiatrists, 27 psychologists or anyone else who may have examined or spent significant time with him 28 during his childhood and youth,” and failed to procure a psychological examination or - 81 - 1 obtain any records related to Stankewitz’s background. Id. at 719–20. Counsel was also 2 unaware of Stankewitz’s history of drug and alcohol abuse. Id. 3 These failures resulted in the wholesale omission of classic mitigating evidence. 4 This evidence showed that Stankewitz was born into a poverty-stricken household where 5 there was not enough food to feed the 10 children. Id. at 717. The house was dirty, filled 6 with vermin, and lacked running water and electricity. Id. By age five, Stankewitz had 7 started sniffing paint. Id. He was physically and mentally abused by both parents. Id. His 8 mother drank excessively while pregnant with Stankewitz and was abused by Stankewitz’s 9 father, who struck her repeatedly in the abdomen. Id. Stankewitz’s mother beat him so 10 badly that she was jailed and he was placed in the care of the state where he was “shuffled 11 from one state institution to another.” Id. at 718. During these placements “he was 12 massively and unnecessarily drugged, tied to beds, beaten, sexually molested, neglected, 13 deliberately tortured, and otherwise abused by staff.” Id. 14 Also omitted at sentencing was evidence that Stankewitz was brain-damaged, 15 borderline retarded, and suffered from significant brain dysfunction which caused 16 problems with impulse control and judgment. Id. He experienced “intense mood shifts, 17 profound depressions with suicidal tendencies, psychotic thinking, an inability to relate to 18 reality in a rational manner, and paranoid delusional thinking.” Id. He also had a “very 19 severe” substance abuse problem dating back to as early as age 10. Id. 20 The mitigating evidence that was omitted due to counsel’s deficient performance in 21 Stankewitz is precisely the evidence that Speer’s counsel did present at sentencing. As just 22 recounted, the jury heard, over the course of almost three weeks of testimony, detailed 23 evidence about Speer’s dysfunctional childhood, which included natal exposure to heroin 24 and methadone, early drug use encouraged by his mother, emotional neglect and abuse, 25 physical abuse, and sexual abuse. Counsel presented extensive testimony from experts who 26 had reviewed the relevant records, examined Speer, and determined that he suffered from 27 PTSD, ADHD, and brain impairment. These same experts explained that Speer performed 28 - 82 - 1 well in institutional settings but was consistently discharged prematurely back to his 2 dysfunctional family home. 3 Similarly, in Hamilton v. Ayers, 583 F.3d 1100, 1119 (9th Cir. 2009), the entire 4 penalty phase took less than a day and was contained in 39 transcript pages. Counsel 5 waived an opening statement and presented one witness—Hamilton’s mother—whose 6 testimony was contained in five pages. Id. at 1119–20. As a result of counsel’s lack of 7 preparation and “scant questioning,” this testimony “left the false impression that 8 Hamilton’s childhood, while unhappy, was not unusual.” Id. at 1120. As in Stankewitz, 9 counsel’s incompetent representation resulted in the omission of significant mitigating 10 evidence about Hamilton’s family background and his mental health history. Hamilton’s 11 alcoholic father physically abused him, physically and sexually abused his mother in front 12 of Hamilton, and sexually abused Hamilton’s sister with his mother’s knowledge, consent, 13 and participation. Id. at 1124–25. When the sexual abuse was disclosed the parents were 14 taken into custody. Id. at 1125. Hamilton “spent the next few years moving from one foster 15 home to another.” Id. Hamilton also “suffered from serious mental health problems 16 throughout most of his life,” including “schizophrenic paranoid disturbances” and 17 depression. Id. at 1126–27. He attempted suicide on multiple occasions. Id. at 1127. 18 Again, the contrast with the performance of Speer’s counsel is telling. The 19 mitigation evidence presented at Speer’s sentencing by both lay and expert witnesses 20 covered his family background and mental health history in extensive detail. 21 In Robinson v. Schriro, 595 F.3d 1086 (9th Cir. 2010), counsel’s performance bears 22 no relationship to the efforts Speer’s counsel made on his behalf. Robinson’s counsel 23 “engaged in virtually no investigation” and did not call any witnesses or present any 24 evidence at the sentencing hearing. Id. at 1109. Counsel did not investigate Robinson’s 25 family history, speak with any member of his family, “request school, medical, or 26 employment records, or seek a mental health evaluation.” Id. at 1109–1110. Again, 27 counsel’s failure to carry out an “effective penalty-phase investigation” resulted in the 28 omission of “classic mitigation evidence” such as Robinson’s impoverished background, - 83 - 1 unstable and abusive upbringing, childhood sexual abuse, low intelligence, personality 2 disorder, non-violent nature; and potential for rehabilitation. Id. at 1110. “Instead, 3 counsel’s limited investigation yielded almost nothing of use.” Id. at 1111. In Speer’s case, 4 counsel’s investigation yielded a comprehensive account of the mitigating aspects of his 5 background and mental health. 6 In Wallace v. Stewart, 184 F.3d 1112 (9th Cir. 1999), the defendant pleaded guilty 7 to three murders so the only issue was his sentence. Counsel at his initial sentencing spent 8 just 36 minutes conferring with the expert retained for sentencing and 1.4 hours talking 9 with other potential mitigation witnesses. Id. at 1115–16. Counsel failed to discover and 10 provide the expert with test results and information about Wallace’s background. This 11 deficient performance left the sentencing judge with an incomplete and inaccurate picture 12 of Wallace’s history and mental health. Among the information omitted was the fact that 13 Wallace came from a “dysfunctional family background[],” an environment “marred by an 14 almost unimaginable level of chaos, neglect, bizarre and insane behavior, and by extreme 15 violence between the parents.” Id. at 1116. Wallace’s mother was psychotic; his father beat 16 her; both were alcoholics. Id. Wallace sniffed glue and gasoline daily between the ages of 17 ten and twelve. Id. He experienced a “clinically significant series of head traumas” and 18 suffered from major depressive disorder and possibly organic brain disorder. Id. At the 19 time of the murders, his ability to conform his conduct to the requirements of the law was 20 “significantly impaired.” Id. 21 In contrast to this incompetent performance of Wallace’s attorney, Speer’s counsel 22 were aware of his background and provided their experts with the information necessary 23 for them to render their diagnoses. They presented this classic mitigating evidence at 24 sentencing. 25 In each of the cases cited by Speer counsel performed ineffectively by failing to 26 investigate and present the kind of mitigating evidence Speer’s counsel did in fact 27 investigate and present. The cases support a finding that the PCR court’s denial of this 28 claim was a reasonable application of Strickland. - 84 - 1 b. 2 Speer contends that the PCR court made unreasonable factual determinations by 3 questioning the credibility of the proposed family member witnesses, principally Sabrina 4 Womble, without an evidentiary hearing. (Doc. 13 at 148–50.) He argues that the PCR 5 court mischaracterized Sabrina’s trial testimony and its divergence from the information 6 she provided in her PCR declaration. (Id.) Factual determinations 7 The State called Sabrina to testify in the guilt phase of trial about the circumstances 8 surrounding the arrest of Speer and Chris Womble at her apartment on March 14, 2002. 9 (RT 1/4/07 at 80–97.) She testified that she had taken valium, Tylenol 3, and methadone 10 that night but denied taking heroin that day or the day before. (Id. at 92–93, 94.) She 11 testified that she had been on methadone for 30 years. (Id. at 93.) She also denied taking 12 heroin in addition to methadone, but then acknowledged that she had also taken heroin: 13 “There may be 10 years, and then maybe another five years would go by. So yes, I have 14 taken it. Not on a regular basis.” (Id.) She also admitted that in the past she had taken heroin 15 “on top of the methadone.” (Id. at 94.) 16 On cross-examination, defense counsel asked Sabrina whether she had “been using 17 heroin for quite some time.” (Id. at 99.) She replied: “When I was under 18, there was a 18 couple years I used it. But since I became an adult, if I did it, it would—it would be, maybe 19 I’d go—you know—10 years—first 10 years we were together, no, I didn’t do it.” (Id.) 20 Under counsel’s continued questioning Sabrina agreed that she had used heroin “more than 21 a few times—more than a few periods of time[.] In other words, there was two weeks at 22 one point and two weeks at another point, and sometimes it was years apart. . . .” (Id.) She 23 could not answer whether there were “numerous periods of time during which [she was] 24 taking heroin . . . on top of [her] methadone.” (Id. at 100.) She denied being a heroin addict 25 her “entire adult life,” denied introducing Speer and Chris to the drug, and denied sending 26 Speer and Chris out to “steal shit in order to get dope, heroin” for her. (Id. at 100–02.) 27 In challenging the PCR court’s assessment of her credibility, Speer asserts that 28 Sabrina “never denied being an addict” or “unduly minimize[d] her drug activity.” (Doc. - 85 - 1 13 at 149.) She did, however, deny using heroin “on a regular basis” or being addicted her 2 “entire adult life.” In her trial testimony she denied introducing Speer and Chris to the drug 3 but in her later declaration she admitted doing so. 4 “Credibility determinations,” such as those the state PCR court made regarding 5 Sabrina Womble, “are factual determinations. As such, they ‘are presumed to be correct 6 absent clear and convincing evidence to the contrary, and a decision adjudicated on the 7 merits and based on a factual determination will not be overturned on factual grounds 8 unless objectively unreasonable in light of the evidence presented in the state court 9 proceeding.’” Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003), opinion amended on 10 denial of reh’g, 357 F.3d 461 (4th Cir. 2004) (quoting Miller-El, 537 U.S. at 340). 11 Speer’s critique falls far short of a clear and convincing rebuttal of the PCR court’s 12 assessment of Sabrina Womble’s credibility. See Rice v. Collins, 546 U.S. 333, 341–42 13 (2006) (explaining that reasonable minds might disagree about a factual finding “does not 14 suffice to supersede the trial court’s credibility determination” on habeas review); see also 15 Atwood, 870 F.3d at 1050 (explaining that a court may not “second-guess a state’s fact- 16 finding process” unless it finds that “the state court was not merely wrong but actually 17 unreasonable”) (citing Hibbler v. Benedetti, 693 F.3d 1140, 1148 (9th Cir. 2012) 18 (additional quotations omitted)). 19 c. 20 There was not a reasonable probability of a different sentence if counsel had 21 presented additional lay testimony about Speer’s troubled background. Speer has not 22 demonstrated that the discrepancy between what was presented in mitigation and what 23 could have been presented was of sufficient magnitude to establish prejudice. See 24 Stankewitz, 365 F.3d at 716. The omitted mitigating evidence is largely inconclusive or 25 cumulative, and does not change the “sentencing profile” offered to the jury. Strickland, 26 466 U.S. at 700; see Babbitt, 151 F.3d at 1175 (finding no prejudice where counsel failed 27 to present cumulative mitigating evidence); Van Hook, 558 U.S. at 12 (finding no prejudice 28 where new evidence added “nothing of value”). The cumulative nature of the evidence Conclusion - 86 - 1 offered about Speer’s background diminishes the likelihood of prejudice. See Leavitt, 646 2 F.3d at 615; Rhoades, 638 F.3d at 1051. 3 As the Ninth Circuit has observed, “There will always be more documents that could 4 be reviewed, more family members that could be interviewed and more psychiatric 5 examinations that could be performed.” Leavitt, 646 F.3d at 612. In Speer’s case, the record 6 demonstrates that even if counsel had conducted a more in-depth investigation, significant 7 and credible new mitigation evidence was not available. 8 The PCR court’s denial of this claim was neither contrary to nor an unreasonable 9 application of Strickland, nor was it based on an unreasonable determination of the facts. 10 Speer’s claim that counsel performed ineffectively during the penalty phase of his trial by 11 failing to investigate and present readily available mitigating evidence from lay witnesses 12 is denied as meritless under the doubly deferential standard of Strickland and AEDPA. See 13 Richter, 562 U.S. at 105. 14 2. Unexhausted claims 15 Speer also alleges that counsel performed ineffectively by failing to “present 16 effective expert testimony on Speer’s difficult history as a victim of domestic and sexual 17 violence, neurocognitive deficits, and complex trauma”; to present evidence of co- 18 defendant Brian Womble’s mental illness; to “protect Speer from repeated instances of 19 prosecutorial misconduct”; and to raise appropriate objections during penalty-phase jury 20 “deadlock.” (Doc. 13 at 150–56.) Speer acknowledges that he did not raise these claims in 21 state court. He contends that their default is excused under Martinez by the ineffective 22 assistance of PCR counsel. 23 a. Trauma expert 24 Speer argues that Dr. Stewart “was not adequately prepared to testify,” “misstated 25 the evidence and failed to articulate how a complex trauma presentation differs from 26 traditional PTSD.” (Doc. 13 at 151.) Instead, according to Speer, “[t]he jury needed to hear 27 from an expert in complex trauma (including sexual abuse) who could synthesize Speer’s 28 extraordinary history in a meaningful and accurate way.” (Id.) Speer contends that if - 87 - 1 counsel had performed effectively they would have done a better job of preparing Dr. 2 Stewart or offered a different expert, one who would have “established a connection 3 between Speer’s mental state, his family background, his neurological defects, and the 4 offense.” (Id. at 152.) Such testimony, according to Speer, would have prevented the 5 Arizona Supreme Court from assigning minimal weight to his mitigating evidence. (Id.) 6 Speer does not contest Dr. Stewart’s expertise, nor does he specify what counsel 7 could have done to better prepare Dr. Stewart for his testimony. As discussed above, Dr. 8 Stewart testified at length about the causes and effects of Speer’s trauma, his mental state, 9 abusive background, and neurological defects, and their relationship to the offense. In 10 essence, then, Speer’s criticism is that Dr. Stewart was not a more effective witness, but 11 “[t]he Constitution does not entitle a criminal defendant to the effective assistance of an 12 expert witness.” Wilson v. Greene, 155 F.3d 396, 401 (4th Cir. 1998); see Harris v. 13 Vasquez, 949 F.2d 1497, 1518 (9th Cir. 1991); Silagy v. Peters, 905 F.2d 986, 1013 (7th 14 Cir. 1990); McGill v. Ryan, No. CV-12-01149-PHX-JJT, 2019 WL 160732, at *12 (D. 15 Ariz. Jan. 10, 2019), aff’d sub nom. McGill v. Shinn, 16 F.4th 666. Therefore, “while there 16 may be a duty to seek out psychiatric evaluation of a client where appropriate, there is no 17 duty to ensure the trustworthiness of the expert’s conclusions.” Babbitt, 151 F.3d at 1174; 18 cf. Hendricks v. Calderon, 70 F.3d 1032, 1038 (9th Cir. 1995) (“To . . . impose a duty on 19 attorneys to acquire sufficient background material on which an expert can base reliable 20 psychiatric conclusions, independent of any request for information from an expert, would 21 defeat the whole aim of having experts participate in the investigation.”). 22 The allegation that trial counsel performed ineffectively with respect to Dr. 23 Stewart’s selection and performance as an expert witness is meritless. PCR counsel, in turn, 24 did not perform ineffectively by failing to raise this claim. See Atwood, 870 F.3d at 1060 25 (“If the ineffective assistance of trial counsel claim lacks merit, then the state habeas 26 counsel would not have been deficient for failing to raise it.”); Runningeagle, 825 F.3d at 27 982 (explaining that to find prejudice based on PCR counsel’s failure to raise a trial-level 28 ineffective assistance of counsel claim, the court “must also find a reasonable probability - 88 - 1 that the trial-level IAC claim would have succeeded had it been raised”). There is not a 2 reasonable probability that the results of the PCR proceedings would have been different 3 if counsel had raised this claim. Speer therefore cannot show “cause” under Martinez for 4 the claim’s default. This allegation remains procedurally defaulted and barred from federal 5 review. Brian Womble’s mental illness 6 b. 7 During the penalty phase of Speer’s trial, counsel argued that Brian Womble’s 8 mental illness constituted a mitigating circumstance. Speer alleges that counsel performed 9 ineffectively by failing to support the circumstance with testimony from Womble’s family 10 that Brian suffered from lifelong depression.23 (Doc. 13 at 153–54.) 11 During the guilt phase of trial, a counselor at Terros, a provider of mental health 12 services, testified that she evaluated Brian Womble on May 24, 2002, the day before the 13 murder, at 4:00 p.m. (RT 1/10/07 at 142.) Although he did not appear depressed, he told 14 her “I want to kill myself and before I do I’m going to kill some other people too.” (Id. at 15 143.) She and another therapist met with Brian for an hour and a half; before he left he 16 retracted his suicide threat and signed a “no harm” contract. (Id.) 17 Speer notes that during his phone calls with his step-brother, Brian talked about 18 being “sick” and having “psychological problems.” (See Doc. 13 at 154.) In another call, 19 Al Heitzman describes Brian as suffering “severe depression” and needing counseling. (Id.) 20 The jurors heard these recordings, however, so they were aware Brian’s mental health was 21 an issue. Lay testimony from family members about Brian being suicidal and “not himself” 22 in the weeks leading up to the crime would have been cumulative to this evidence and the 23 testimony of the Terros counselor. 24 In addition, as Respondents suggest, it is not apparent that evidence that Brian 25 Womble suffered from mental illness would mitigate Speer’s involvement in the murder. 26 Mental illness could have been viewed as making Brian an even easier target for Speer to 27 On independent review of Speer’s death sentence, the Arizona Supreme Court did not discuss Brian Womble’s mental illness as one of the mitigating circumstances proved by a preponderance of the evidence. See Speer, 221 Ariz. at 464–65, 212 P.3d at 802–03. 28 23 - 89 - 1 manipulate into carrying out the shooting in accord with the State’s theory of the crime. 2 The allegation that trial counsel performed ineffectively with respect to Brian 3 Womble’s alleged mental illness is without merit. PCR counsel therefore did not perform 4 ineffectively by failing to raise this claim. See Atwood, 870 F.3d at 1060; Runningeagle, 5 825 F.3d at 982. There is not a reasonable probability that the results of the PCR 6 proceedings would have been different if the claim had been raised. Speer therefore cannot 7 show “cause” under Martinez for the claim’s default. This allegation remains procedurally 8 defaulted and barred from federal review. 9 c. Prosecutorial misconduct 10 Speer alleges that counsel performed ineffectively during the penalty phase by 11 failing to object and seek appropriate remedies for prosecutorial misconduct. (Doc. 13 at 12 154–55.) He argues that the prosecutor committed misconduct by using Speer’s “mental 13 health history”—namely, the antisocial personality diagnosis arrived at by Dr . Bayless— 14 as “non-statutory aggravating evidence.” (Doc. 13 at 127.) He argues the prosecutor 15 solicited and failed to correct false testimony from Dr. Bayless about the amount of time 16 he spent with Speer during his examinations. (Id. at 131–33.) Finally, he contends that the 17 prosecutor committed misconduct during her closing argument by using inflammatory 18 language, misstating the evidence, and making improper comments. (Id. at 133.) 19 Defense counsel did not perform ineffectively. Counsel’s strategy with respect to 20 objections is entitled to deference under Strickland. 466 U.S. at 689; see Cunningham, 704 21 F.3d at 1160 (explaining that “withholding objections . . . is acceptable defense strategy”). 22 “[A] few missed objections alone, unless on a crucial point, do not rebut the strong 23 presumption that counsel’s actions (or failures to act) were pursuant to his litigation 24 strategy and within the wide range of reasonable performance.” United States v. Mejia– 25 Mesa, 153 F.3d 925, 931 (9th Cir. 1998); see United States v. Necoechea, 986 F.2d 1273, 26 1281 (9th Cir. 1993). Counsel may reasonably decide to “refrain from objecting during 27 closing argument to all but the most egregious misstatements by opposing counsel on the 28 - 90 - 1 theory that the jury may construe their objections to be a sign of desperation or hyper- 2 technicality.” United States v. Molina, 934 F.2d 1440, 1448 (9th Cir. 1991). 3 i. Comments on Speer’s mental health 4 Speer contends that the prosecutor committed misconduct during her penalty-phase 5 arguments by emphasizing the negative implications of his diagnosis of antisocial 6 personality disorder—that Speer was deceitful, manipulative, uncaring, and dangerous. 7 (Doc. 13 at 128–30.) The comments did not constitute prosecutorial misconduct, so counsel 8 did not perform ineffectively by failing to object. See, e.g., Dubria v. Smith, 224 F.3d 995, 9 1003–04 (9th Cir. 2000); Boggs v. Shinn, No. CV-14-02165-PHX-GMS, 2020 WL 10 1494491, at *51 (D. Ariz. Mar. 27, 2020). As Respondents note, A.R.S. § 13–752(G) 11 provides that the State “may present any evidence that demonstrates that the defendant 12 should not be shown leniency including any evidence regarding the defendant’s character, 13 propensities, criminal record or other acts.” The prosecutor was therefore entitled to argue 14 that Speer’s diagnosis of antisocial personality disorder rebutted the defense arguments 15 that he should be shown leniency. See State v. Carlson, 237 Ariz. 381, 396–97, 351 P.3d 16 1079, 1094–95 (2015) (explaining that while it is improper to argue a nonstatutory 17 aggravating factor, “[t]he prosecutor may, however, argue any circumstances that rebut the 18 mitigation evidence proffered by the defense.”) 19 The prosecutor’s arguments about the elements of an antisocial personality were 20 also reasonable inferences from that diagnosis as testified to by Dr. Bayless. See United 21 States v. Tucker, 641 F.3d 1110, 1120 (9th Cir. 2011) (“Prosecutors can argue reasonable 22 inferences based on the record, and have considerable leeway to strike hard blows based 23 on the evidence and all reasonable inferences from the evidence.”) (additional quotations 24 omitted); United States v. Blueford, 312 F.3d 962, 968 (9th Cir. 2002) (“It is certainly 25 within the bounds of fair advocacy for a prosecutor, like any lawyer, to ask the jury to draw 26 inferences from the evidence that the prosecutor believes in good faith might be true.”). 27 Dr. Bayless testified, for example, that the prognosis for those with antisocial personality 28 disorder is poor and that the condition cannot be treated with medication. (RT 3/21/07 at - 91 - 1 44–45.) He also testified that Speer was capable of conforming his conduct to the 2 requirements of law despite have an antisocial personality disorder. (Id. at 45.) 3 ii. Dr. Bayless’s testimony 4 Speer asserts that the prosecutor violated Napue v. Illinois, 360 U.S. 264 (1959), by 5 soliciting and failing to correct false testimony from Dr. Bayless about the amount of time 6 he spent examining Speer and about the results of his examinations. (Doc. 13 at 131.) Speer 7 alleges that defense counsel performed ineffectively by failing to object to this testimony. 8 The state may not knowingly use false testimony to obtain a conviction. Napue v. 9 Illinois, 360 U.S. 264, 269 (1959). A Napue violation consists of three components: (1) the 10 testimony was actually false, (2) the prosecution knew or should have known that the 11 testimony was actually false, and (3) the false testimony was material. See Hayes v. Ayers, 12 632 F.3d 500, 520 (9th Cir. 2011). An error is material where “there is any reasonable 13 likelihood that the false testimony could have affected the judgment of the jury.” United 14 States v. Agurs, 427 U.S. 97, 103 (1976). 15 Dr. Bayless testified that he examined Speer over two consecutive days. (RT 16 3/20/07 at 77.) According to Bayless, he spent “maybe” four hours with Speer on August 17 14, 2006, performing a clinical interview and administering the MMPI-2.24 (Id.) He 18 “guesstimate[ed]” that on the 15th he “spent probably an hour to an hour and a half” with 19 Speer. (Id.) On that day he administered two tests, the Shipley Institute of Living Scale and 20 the Williamson Sentence Completion Test. (Id. at 76–77.) 21 Speer contends that jail visitor logs indicate that Bayless visited Speer for only 30 22 minutes on each of those days. (Doc. 13 at 131–33; see Doc. 23-3, Ex. 8.) He asserts that 23 the prosecutor was aware of the jail logs and therefore knew Bayless’s testimony was false. 24 (Id.) Speer alleges that his counsel performed ineffectively in failing to challenge this 25 aspect of Dr. Bayless’s testimony. (Id. at 154–55.) 26 The apparent inconsistency between the jail records and Dr. Bayless’s testimony is 27 not sufficient to support a Napue violation because the jail records do not appear to 28 24 Minnesota Multiphasic Personality Inventory. - 92 - 1 accurately document the length of visits. In the records provided by Speer, the duration of 2 every visit in the jail logs is listed as precisely 30 or 40 minutes. (See Doc. 23-9, Ex. 41.) 3 For example, on 1/10/05, Dr. Stewart, one of Speer’s experts, is documented as visiting 4 Speer from 1329 to 1409. (Id.) In his report, however, Dr. Stewart stated that he 5 “interviewed Mr. Speer at the Maricopa County Jail on January 10, 2005, for half a day.” 6 (Doc. 23-10, Ex. 51 at 1) (emphasis added). Another defense expert, Dr. Parrish, testified 7 that she administered the Halstead-Reitan Battery, a five-hour test, over five different 8 sessions with Speer, breaking up the test sessions due to Speer’s difficulty concentrating 9 and sometimes being interrupted when the interview room became unavailable. (RT 10 2/27/07 at 120, 126–27; see Doc. 23-10, Ex. 51.) The jail records, however, list five visits 11 each lasting exactly 40 minutes.25 (See Doc. 23-9, Ex. 41.) 12 This information suggests that while the jail records document Speer’s visitors, they 13 do not accurately depict the length of each visit, and therefore Dr. Bayless did not testify 14 falsely when he estimated that he spent about four hours with Speer administering the 15 MMPI-2—any more than Dr. Stewart inaccurately reported spending half a day with Speer 16 when the jail record listed only a 40 minute visit. 17 While Speer notes that the prosecutor referred to the jail records when questioning 18 other witnesses, she used the records to establish the fact of the visits, not their duration. 19 Given the information just discussed, it is not reasonable to say that the prosecutor knew 20 Dr. Bayless’s testimony was untrue. 21 Finally, Speer engages in pure speculation when he asserts that the prosecutor knew 22 of, and should have corrected, Dr. Bayless’s “misleading” testimony about the results of 23 the tests he administered.26 (Doc. 13 at 133.) 24 There was no Napue violation. Speer’s counsel therefore did not perform 25 ineffectively in failing to object. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) 26 27 28 25 The visits occurred on 12/6/04, 12/7/04, 12/23/04, 1/3/05, and 1/11/05. Speer asserts that Dr. Bayless “gave incorrect scores” with respect to various scales on the MMPI. (Doc. 13 at 133.) 26 - 93 - 1 (“[T]rial counsel cannot have been ineffective for failing to raise a meritless objection.”); 2 Rupe, 93 F.3d at 1445. 3 4 5 iii. Prosecutor’s closing argument Speer alleges that counsel performed ineffectively in response to the prosecutor’s misconduct during her closing argument. (Doc. 13 at 154–55; see id. at 133–36.) 6 (a) Denigrating the mitigating evidence and the defense strategy 7 Speer first contends that the prosecutor committed misconduct by attacking the 8 mitigating evidence as untrue and manipulative and accusing the defense of appealing to 9 “juror guilt.” (Doc. 13 at 134.) Speer alleges that counsel performed ineffectively by failing 10 to object to this purported misconduct. (Id. at 154–55.) 11 The prosecutor argued that Speer’s mitigation evidence was untrue, “exaggerated,” 12 or “nonsense.” (RT 3/27/07, a.m., at 6.) “[T]he rest of it,” she continued, “is presented to 13 make you feel responsible for the fact the defendant committed a murder under 14 circumstances that make him eligible for the death penalty.” (Id.) In another passage cited 15 by Speer, the prosecutor addressed the defense argument that executing Speer would affect 16 his son. (Doc. 13 at 134.) She characterized that argument as “pile on the juror guilt. Feel 17 guilty if you impose the death penalty because of what it will do to Cedric.” (RT 3/27/07, 18 a.m., at 9.) 19 The Ninth Circuit has found that a prosecutor commits misconduct when he 20 denigrates the defense as a sham. United States v. Sanchez, 176 F.3d 1214, 1225 (9th Cir. 21 1999) (“The prosecutor committed misconduct in vouching for his witnesses, denigrating 22 the defense as a sham, and arguing that it was the jury’s duty to find the defendants 23 guilty.”). Here, the prosecutor did not denigrate defense counsel; rather, she criticized 24 counsel’s tactics in choosing to present certain mitigating evidence. See United States v. 25 Bernard, 299 F.3d 467, 487–88 (5th Cir. 2002) (rejecting a challenge to a prosecutor’s 26 closing argument that accused the defense of trying “to get someone on this jury to . . . take 27 a red herring”); see also United States v. Vazquez–Botet, 532 F.3d 37, 56–59 (1st Cir. 28 2008) (finding no misconduct where prosecutor characterized defense counsel as - 94 - 1 “desperate lawyers” seeking to “cloud the issues”); United States v. Sayetsitty, 107 F.3d 2 1405, 1409 (9th Cir. 1997) (“Criticism of defense theories and tactics is a proper subject 3 of closing argument.”). 4 Some courts have found that a prosecutor’s “guilt trip” comments approached or 5 crossed the line of improper argument but determined that any error was harmless, in part 6 because the comments were invited by the defense. See Harmon v. Sharp, 936 F.3d 1044, 7 1080 (10th Cir. 2019) (finding that defense counsel’s improper argument that defendant’s 8 daughter deserved mercy because she loved her father weighed against a finding that 9 defendant was harmed by prosecutor’s remarks, including his argument that defendant used 10 his family members as “human shields” at sentencing); Cuesta-Rodriguez v. Carpenter, 11 916 F.3d 885, 908 (10th Cir. 2019) (finding the defense invited the comments by 12 “attempt[ing] to elicit sympathy for Cuesta-Rodriguez’s family—his son in particular— 13 based on the pain they would feel if he received the death penalty”); see also People v. 14 Krebs, 8 Cal. 5th 265, 342, 452 P.3d 609, 668 (2019) (finding no misconduct where 15 prosecutor argued that the defense was “trying to deflect . . . responsibility” and “lay some 16 kind of a guilt trip on you for what their client truly deserves”). 17 Here, defense counsel argued that the effect of Speer’s execution on Cedric was a 18 mitigating circumstance (RT 3/26/07 at 129), inviting the prosecutor’s challenge to the 19 circumstance. In addition, counsel was given an opportunity in his rebuttal closing 20 argument to address the prosecutor’s comments about Cedric. (RT 3/27/07, p.m., at 7–8.) 21 Any prejudice related to the purported misconduct was therefore limited. See Hein v. 22 Sullivan, 601 F.3d 897, 912–13 (9th Cir. 2010) (citing Darden, 477 U.S. at 182). 23 In any event, the issue is not whether the prosecutor’s comments constituted 24 misconduct but whether trial counsel performed at a constitutionally ineffective level by 25 failing to object. They did not. As the Ninth Circuit has explained, “absent egregious 26 misstatements, the failure to object during closing argument and opening statement is 27 within the ‘wide range’ of permissible professional legal conduct.” Necoechea, 986 F.2d 28 at 1281 (noting that “many lawyers refrain from objecting during opening statement and - 95 - 1 closing argument”); see Dubria, 224 F.3d at 1003–04 (finding that failure to object to 2 closing argument in which prosecutor referred to defendant as “the biggest liar you’ve ever 3 encountered” and defendant’s story as a “piece of garbage” did not constitute deficient 4 performance); Cunningham, 704 F.3d at 1159 (finding that failure to object to the 5 prosecutor’s comments, “possibly to avoid highlighting them, was a reasonable strategic 6 decision”). Speer’s counsel could reasonably have determined that objecting to the 7 prosecutor’s comments would have highlighted them unnecessarily. 8 (b) Misstating facts 9 Speer asserts that the prosecutor committed misconduct when she falsely suggested 10 that Speer was not Cedric’s father and accused him of denying paternity. (Doc. 13 at 135.) 11 In fact, the record showed that Speer did question paternity. In one of the letters he wrote 12 to Al Heitzman, which was read into the record the day before the State’s closing argument, 13 Speer wrote: “Honestly, Al, I don’t even know if Cedric is really my son because Veronica 14 was cheating on me the whole time we were together, so at this point in time, a DNA test 15 is mandatory.” (RT 3/26/07 at 48.) Defense counsel did not perform ineffectively by failing 16 to object to the prosecutor’s statement because it was supported by the record and not 17 improper. 18 Speer also contends that the prosecutor misled the jury by stating that Speer had a 19 different CPS caseworker “every time” when in fact several caseworkers saw Speer and 20 his family on more than one occasion. (Doc. 13 at 135) (citing RT 3/27/07, a.m., at 23). 21 There was no misconduct for defense counsel to object to. The prosecutor was 22 responding to the defense argument that Speer should have been removed from his 23 dysfunctional home. The prosecutor was entitled to draw the inference, based on the fact 24 that several CPS workers investigated Speer’s family but did not seek his removal, that the 25 abuse and neglect were less severe than Speer alleged. See Tucker, 641 F.3d at 1120 26 (explaining that “[p]rosecutors can argue reasonable inferences based on the record”). 27 28 (c) Misstating the law Speer asserts that the prosecutor misstated the law by arguing that evidence had to - 96 - 1 be causally connected to the murder in order to be mitigating. (Doc. 13 at 135–36.) He also 2 argues that the prosecutor misstated the law by arguing that “mercy for this crime isn’t 3 appropriate” and “[t]here is nothing about this crime that calls out for mercy for the 4 defendant.” (Id. at 136) (quoting RT 3/27/07, a.m., at 68, 72). According to Speer, these 5 comments misstated the law because “the question of mercy is directed toward the 6 defendant, not the crime.” (Id.) There was no misconduct. 7 Speer proposed mercy as a mitigating circumstance. The prosecutor was entitled to 8 respond to that argument. See State v. Anderson, 210 Ariz. 327, 350, 111 P.3d 369, 392 9 (2005) (“Once the jury has heard all of the defendant’s mitigation evidence, there is no 10 constitutional prohibition against the State arguing that the evidence is not particularly 11 relevant or that it is entitled to little weight.”). It was not improper to argue that the nature 12 of the crime and Speer’s role in it—selfishly manipulating his younger brother into 13 shooting a sleeping couple in an attempt to eliminate them as witnesses to a prior crime— 14 did not support a call for mercy. Speer’s counsel did not perform ineffectively by failing 15 to object. 16 The allegation that trial counsel performed ineffectively in responding to the 17 purported misconduct is without merit. PCR counsel therefore did not perform 18 ineffectively. See Atwood, 870 F.3d at 1060; Runningeagle, 825 F.3d at 982. There is not 19 a reasonable probability that the results of the PCR proceedings would have been different 20 if counsel had raised this claim. Speer therefore cannot show “cause” under Martinez for 21 the claim’s default. This allegation remains procedurally defaulted and barred from federal 22 review. 23 d. Jury deadlock instruction 24 Finally, Speer alleges that counsel performed ineffectively by failing to raise 25 “proper objections” when the jury deadlocked during the penalty phase and the trial court 26 provided an impermissibly coercive jury instruction. (Doc. 13 at 155.) The record does not 27 support this claim. 28 - 97 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Prior to deliberations in the penalty phase of Speer’s trial, the court provided the following jury instruction27: . . . If you feel you’ve reached an impasse, simply let the court know without disclosing the numerical results of any vote. Each juror has a duty to consult with one another to deliberate with a view to reaching an agreement, if it can be done without violence to any individual judgment. No juror should ever surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of other jurors or for the purpose of reaching a verdict. However, you may want to identify areas of agreement and disagreement and discuss the law and the evidence as they relate to the areas of disagreement. Then and only then, if you still disagree, you may wish to tell the attorneys and me which issues, questions, law, or facts you would like us to assist you with. If you decide to follow this suggestion, please write down the issues, questions, law, or facts on which we can possibly help. (RT 3/27/07, p.m., at 26–27.) The court had provided similar instructions, which it referred to as a “dynamite” instruction (RT 3/28/07 at 4), prior to the guilt and aggravation phases of Speer’s trial. (RT 1/17/07 at 187–88; RT 1/24/07 at 52; RT 1/29/07 at 128–29.) After two and a half hours of penalty-phase deliberations, the jury foreperson sent the court a note stating “We currently are unable to reach an unaminous [sic] verdict, what do we do now?” (RT 3/28/07 at 4; EIR 734.) Twenty minutes later, the jury foreperson sent another note, which asked “If we can’t reach an unaminous [sic] verdict . . . what happens to the sentencing?” (RT 3/28/07 at 4; EIR 735.) The judge and the parties discussed the jury’s questions. (RT 3/28/07 at 4–5.) With regard to the second question, the judge stated, “I don’t even want to get involved with [it]. 27 The instruction was based in part on Rule 22.4 of the Arizona Rules of Criminal Procedure, which provided: 24 25 26 27 If the jury advises the court that it has reached an impasse in its deliberations, the court may, in the presence of counsel, inquire of the jurors to determine whether and how court and counsel can assist them in their deliberative process. After receiving the jurors’ response, if any, the judge may direct that further proceedings occur as appropriate. 28 - 98 - 1 We told them before that they’re not to concern themselves with any sentence if it’s less 2 than death because that’s my province, not theirs.” (Id. at 5.) The court ultimately provided 3 no answer to the question, telling the jury it was not relevant. (Id. at 21.) 4 With respect to the first question, the judge explained that he was inclined to provide 5 the dynamite instruction again. (Id. at 5–6.) The court wanted to ask the jurors “what their 6 area of disagreement is so that perhaps they can give us a little further guidance” (Id. at 6.) 7 Defense counsel objected, arguing “It’s not possible you can artfully do that. You’re getting 8 too involved.” (Id.) Counsel objected that the judge was “pushing them [the jurors]” and 9 that they should be questioned only as to “whether or not they think that further 10 deliberations would be worthwhile or productive.” (Id. at 5.) As the judge continued to 11 consider providing the dynamite instruction again, defense counsel repeatedly objected, 12 noting that the jury had already heard the instruction at least three times and insisting that 13 the only permissible question was whether additional deliberations would be productive. 14 (See id. at 9, 11, 13, 18.) 15 The court suggested the following language: “If you recall before you began your 16 deliberations, I told you that you might want to identify for us any areas of agreement and 17 disagreement and tell the attorneys and me whether there are issues, questions, law or facts 18 you’d like us to assist you with.” (Id. at 17–18.) Defense counsel again objected to the 19 inclusion of language about “assisting” the jury. (Id. at 18–20.) The judge finally proposed 20 the following script: “I previously told you that if you couldn’t agree on a verdict you might 21 want to tell the attorneys and me which issues you would like us to assist you with. Would 22 you like me to do that or do you feel that further deliberations would not be productive?” 23 (Id. at 20–21.) This time, counsel stated “Okay with us” and the instruction was provided 24 to the jury in writing. (Id. at 21; see EIR 734.) 25 The jury then deliberated for 45 minutes more before adjourning for the day. (EIR 26 740.) It began deliberations the next morning around 10:00 and returned with its death 27 verdict at 11:30. (EIR 743.) 28 - 99 - 1 Speer alleges that counsel performed ineffectively when they “acquiesced” to the 2 final version of the court’s instruction. (Doc. 13 at 156.) This argument is not persuasive. 3 See State v. Kuhs, 223 Ariz. 376, 384–86, 224 P.3d 192, 200–02 (2010) (discussing factors 4 to consider in assessing coerciveness of impasse instruction). First, as just noted, counsel 5 did object, repeatedly, to any instruction offering to assist the jury. Next, the instruction 6 given was likely not coercive under Arizona law, so further objection would have been 7 futile. See James, 24 F.3d at 27. The court did not know the numerical split of the jury, and 8 the jurors had been deliberating for only two and a half hours, after a five month trial, when 9 they sent the note. These factors support a finding that the instruction was not coercive. 10 Kuhs, 223 Ariz. at 384–86, 224 P.3d at 200–02 . 11 This claim of ineffective assistance of counsel is meritless. PCR counsel did not 12 perform ineffectively by failing to raise it, so the claim remains defaulted and barred from 13 review. 14 3. Conclusion 15 Speer’s trial counsel did not perform at a constitutionally ineffective level in the 16 penalty phase of trial. The PCR court’s denial of the exhausted portion of this claim was 17 reasonable under the doubly deferential standard of Strickland and AEDPA. See Richter, 18 562 U.S. at 105. With respect to the unexhausted allegations, Speer has not established 19 cause and prejudice to excuse their default under Martinez so they remain barred from 20 federal review. Claim 14 is therefore denied. 21 Claims 15 and 16: 22 In Claim 15, Speer alleges that counsel performed ineffectively by stipulating to 23 aggravating factors. (Doc. 13 at 156.) In Claim 16, he alleges that counsel performed 24 ineffectively by “admitting irrelevant prior convictions” (Id. at 161.) Speer raised these 25 claims during the PCR proceedings. The PCR court’s denial of the claims was neither 26 contrary to nor an unreasonable application of clearly established federal law. 27 28 - 100 - 1 Claim 15 2 The State noticed four aggravating factors. Speer’s counsel stipulated to three of 3 them: previous commission of a serious offense under A.R.S. § 13–703(F)(2); committing 4 the offense in an especially heinous, cruel, or depraved manner, (F)(6); and committing the 5 offense while on release or probation. (F)(7)(a).28 As the PCR court noted, the (F)(2) and 6 (7) factors “were easily proven with documentary evidence from Superior Court files” 7 while (F)(6) “had been proven in connection with the guilt phase evidence as witness 8 elimination was the motive for the premeditated murder.” (ME 5/20/15 at 14.) The fourth 9 aggravating factor, to which counsel did not stipulate, was creating a grave risk of death to 10 another person in the commission of the offense under (F)(3). 11 Speer contends that by stipulating to the aggravating factors, counsel’s performance 12 violated both Strickland and United States v. Cronic, 466 U.S. 648 (1984). (Doc. 13 at 13 156–59.) This argument is unpersuasive. 14 The Arizona Supreme Court independently reviewed the aggravating factors and 15 found that the three to which counsel stipulated were proved beyond a reasonable doubt. 16 Speer, 221 Ariz. at 463–64, 212 P.3d at 801–02. The court found that the (F)(3) factor was 17 not proved. Id. at 460, 463, 212 P.3d at 798, 801. 18 In rejecting this ineffective assistance claim, the PCR court found neither deficient 19 performance nor prejudice. The court first noted that Speer acknowledged that in conceding 20 the aggravating factors trial counsel made a strategic decision, which PCR counsel labeled 21 “confession and avoidance.” (ME 5/20/15 at 15.) The court rejected Speer’s argument that 22 such a strategy is never “appropriate in the penalty phase of a capital trial.” (Id.) Citing 23 Strickland, the court explained that it would “not second-guess the strategic decisions of 24 trial counsel” and that: The record here supports the conclusion that counsel made a strategic decision to stipulate to three of the four aggravating factors; the fourth, 25 26 27 28 The Court refers to Arizona's statutes in effect at the time of Speer’s sentencing. Arizona’s capital sentencing statutes have since been renumbered. See A.R.S. §§ 13-751– 59. 28 - 101 - 1 (F)(3), he challenged, preserving the issue for appeal, and the Supreme Court found in Defendant’s favor. The Supreme Court’s decision supports trial counsel’s strategic decision to challenge only one of the aggravating factors. 2 3 In further support of this conclusion, the Court notes the strength of the aggravating factors and the relative ease with which each could be proved. The Court is aware that in a death penalty case such as this, trial counsel is initially called upon to argue his client’s lack of guilt, and then must accept a finding of guilt. Trial counsel is then called upon to seek leniency from the same jury who has just rejected counsel’s presentation. Counsel may strategically determine that credibility may be built at the aggravation phase by conceding matters that are a matter of record or that have already been proved. 4 5 6 7 8 9 10 Such a concession, in the form of a stipulation, is within a tactical decision reasonably made by trial counsel. . . . 11 (Id.) The court then addressed Speer’s argument that trial counsel’s performance satisfied 12 the standard set out in Cronic: 13 Cronic is violated when counsel is either totally absent or is prevented from assisting the accused. In the instant case, trial counsel was neither absent nor prevented from assisting his client; rather, by entering into a stipulation counsel made a tactical decision with which Defendant disagrees. Since there was overwhelming proof of these three aggravating factors, challenging them would have been “a useless charade.” 14 15 16 17 18 19 (Id. at 16) (quoting Cronic, 466 U.S. at 657, n. 19). Finally, the Court determined that Speer was not prejudiced by trial counsel’s stipulation to the aggravators: In the Court’s view, the outcome would have been the same had trial counsel required the State to prove the three aggravating factors that instead were stipulated to. Defendant’s prior conviction for a serious offense and his parole status were easily proved by court documents and Defendant’s Arizona Department of Corrections history. In order for the jury to convict Defendant of premeditated murder, they had to conclude that his motivation was to kill witnesses. On that front, the evidence in the guilt phase was overwhelming through Defendant’s own telephone conversations. 20 21 22 23 24 25 Challenging these aggravating factors would not have led to a different result and, thus, no prejudice can attach by virtue of trial counsel’s strategic decision to stipulate to the (F)(2), (6), and (7) aggravating factors. 26 27 28 (Id.) - 102 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The PCR court’s ruling was neither contrary to nor an unreasonable application of Strickland and Cronic. In Florida v. Nixon, the Supreme Court described Cronic as a narrow exception to Strickland’s holding that a defendant who asserts ineffective assistance of counsel must demonstrate not only that his attorney’s performance was deficient, but also that the deficiency prejudiced the defense. Cronic instructed that a presumption of prejudice would be in order in “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” 543 U.S. 175, 190 (2004) (quoting Cronic, 466 U.S. at 658). Cronic held that the application of presumptive prejudice is appropriate when “there [is] a breakdown in the adversarial process,” such that “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” 466 U.S. at 659, 662. The Court made clear, however, that the Cronic exception is very narrow. “When we spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s failure must be complete.” Bell v. Cone, 535 U.S. 685, 696–97 (2002); see United States v. Thomas, 417 F.3d 1053, 1057 (9th Cir. 2005) (explaining that in Cone “the Court emphasized that Cronic’s exception for failing to test the prosecution’s case applies when the attorney’s failure to oppose the prosecution goes to the proceeding as a whole—not when the failure occurs only at specific points in the trial”). Cronic is not applicable here. Counsel’s stipulation to the easily-proved aggravating factors did not constitute a complete failure to test the State’s case. See Allerdice v. Ryan, 395 F.App’x 449, 451 (9th Cir. 2010) (finding that stipulation to certain facts did not meet Cronic standard where counsel “offered evidence, cross-examined witnesses, elicited favorable testimony, and presented a coherent if ultimately unsuccessful defense in closing argument”); Pratt v. Conway, 151 F.App’x 582, 583 (9th Cir. 2005) (“[T]he decision to stipulate to facts did not completely fail to subject the prosecution’s case to meaningful adversarial testing.”). Speer’s counsel opposed the State’s case at every stage of trial, including by successfully contesting one of the aggravating factors. Therefore Strickland, not Cronic, provides the proper framework for analyzing this claim. - 103 - 1 As the PCR court found, under Strickland Speer cannot show he was prejudiced by 2 counsel’s stipulation to the three aggravating circumstances. There was not a reasonable 3 probability that the sentencing outcome would have been different if counsel had 4 challenged the aggravators, two of which, (F)(2) and (F)(7), were conclusively proved by 5 documentary evidence. The third factor, that the murder was especially heinous or 6 depraved, is satisfied where the purpose of the murder is witness elimination. See Speer, 7 221 Ariz. at 464, 212 P.3d at 802; State v. Johnson, 212 Ariz. 425, 439, 133 P.3d 735, 749 8 (2006). The evidence from Speer’s jail phone calls was overwhelming that the murder was 9 committed to eliminate the Sotos as witnesses. 10 Speer contends counsel failed to subject the aggravating factors to “meaningful 11 adversarial testing” (Doc. 13 at 159), but does not suggest what such testing would entail 12 let alone demonstrate that this unidentified challenge to the aggravators would have 13 resulted in a reasonable probability of a different sentence.29 A “cursory and vague” claim 14 of ineffective assistance is insufficient to establish a Strickland violation. See Greenway v. 15 Schriro, 653 F.3d 790, 804 (9th Cir. 2011); James, 24 F.3d. at 26. Speer fails therefore to 16 meet his burden under Strickland. 17 18 Claim 15 does not satisfy the doubly deferential standard governing ineffective assistance claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S. at 15. 19 Claim 16 20 Speer alleges that counsel performed ineffectively by allowing evidence of two prior 21 convictions to be admitted in addition to the robbery conviction that was used to satisfy the 22 (F)(2) aggravating factor. (Doc. 13 at 159.) 23 24 25 26 27 28 29 In support of Claims 15 and 16, Speer cites the opinion of Michael Reeves, a “Strickland expert” retained during the PCR proceedings. (Doc. 13 at 159, 160 n.19.) In his declaration, dated October 24, 2013, Reeves summarily attests that trial counsel’s performance in “admitting the aggravating factors” and “not filing a motion to preclude irrelevant prior convictions” fell “below prevailing professional norms.” (PCR Pet., Ex. 2 at ¶¶ 13, 14.) The Court considers but accords little weight to these conclusory opinions. - 104 - 1 In his closing argument during the aggravation phase, defense counsel told the jury 2 that his client “was not a saint” and had two other prior convictions, for third-degree 3 burglary and resisting arrest. (RT 1/29/07 at 122–23.) Counsel raised the convictions 4 because they were referenced in documents that were going to be provided to the jury and 5 he “did not want them to hear about them or see them for the first time when they walked 6 into the jury room.” (Id. at 122.) Counsel cautioned the jurors, however, that they were 7 “not supposed to take them into account in making the determination” about the 8 aggravating factors. (Id. at 122–23.) 9 The PCR court denied Speer’s claim that counsel performed ineffectively by 10 admitting the additional convictions. The court repeated that in capital cases “trial counsel 11 is tasked with rebuilding credibility with the jury in order to seek leniency from the same 12 jury who has just rejected counsel’s guilt phase presentation.” (ME 5/20/15 at 16.) This 13 may be accomplished “by conceding damaging matters that are a matter of record and that 14 are likely to be proved by the State during the sentencing phase.” (Id.) The court explained 15 that it would not second-guess counsel’s strategic choice to “draw the sting”: 16 17 18 19 There is nothing inappropriate about such a decision because the jury was going to hear evidence of certain prior convictions anyway since the State alleged as aggravating factors that Speer was previously convicted of a serious offense and was on release from prison at the time of the murder. 21 Trial counsel discussed the prior felony convictions with the jury because, otherwise, the jury would hear it for the first time from the State. Such concerns were totally justified and well within the prevailing professional standards of reasonableness for counsel in a death penalty case to make. 22 (Id. at 16–17.) The court then found that Speer was not prejudiced by counsel’s 23 performance: 20 24 25 26 27 28 Whether disclosed by trial counsel during the aggravation phase, or by the State in rebuttal to the issue of whether Defendant was deserving of leniency at the penalty phase, the jury would learn at some point of the prior convictions. Additionally, even if the convictions had been kept from the jury, as trial counsel noted, the offenses were not serious offenses (convictions for burglary and resisting arrest), such that any harm was minimal in connection with the determination of the aggravating factors. - 105 - 1 (Id. at 17.) 2 This decision was neither contrary to nor an unreasonable application of Strickland 3 or Cronic. First, courts have recognized the strategic reasonableness of “drawing the sting” 4 from unfavorable information by revealing it before the prosecution does. See Smith v. 5 Spisak, 558 U.S. 139, 161 (2010) (Stevens J., concurring in part and concurring in the 6 judgment) (stating that it “is generally a reasonable” trial strategy “to draw the sting out of 7 the prosecution’s argument and gain credibility with the jury by conceding the weaknesses 8 of [counsel’s] own case”); see Pearson v. Wyoming Att’y Gen., 856 F.App’x 758, 763 (10th 9 Cir. 2021), cert. denied sub nom. Pearson v. Hill, 142 S. Ct. 454; Cave v. Sec’y for Dep’t 10 of Corr., 638 F.3d 739 (11th Cir. 2011). 11 As discussed above, counsel did not completely fail to challenge the State’s case, so 12 Cronic does not apply and Speer must prove prejudice from counsel’s handling of the 13 evidence of the additional convictions. The PCR court reasonably found that he failed to 14 do so. (ME 5/20/15 at 16.) Notwithstanding any action defense counsel may have taken, 15 the State would have introduced the convictions in rebuttal to any argument that Speer 16 deserved leniency. Additionally, given the aggravating factors that had been established, 17 there was no reasonable probability that the presence or absence of evidence of lesser 18 crimes would have affected Speer’s sentence. 19 20 Claim 16 fails to satisfy the doubly deferential standard that governs ineffective assistance claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S. at 15. 21 Claim 17: 22 Speer alleges that trial counsel performed ineffectively in “permitting dissemination 23 of two doctor’s reports that were used by the state in the penalty phase.” (Doc. 13 at 163.) 24 At issue are pretrial reports of two experts who evaluated Speer and concluded that he had 25 malingered during their examinations. The PCR court denied this claim on the merits. (ME 26 5/20/15 at 20–21.) 27 At the time of Speer’s case, unless a defendant objected, Arizona law required a 28 capital defendant to be evaluated for intellectual disability, competency, and sanity at the - 106 - 1 time of the offense. See A.R.S. § 13–703.02(B); –703.03(A). The trial court appointed Dr. 2 Potts to evaluate Speer’s competency and Dr. Toma to evaluate Speer for intellectual 3 disability. (EIR 86; EIR 200, Ex. A.) Dr. Potts, in his report dated April 21, 2003, found 4 that Speer was “malingering.” (Id. at 2.) According to Dr. Potts, Speer “is attempting to 5 not only feign a mental illness, but also cognitive defects. He is making a cognitive choice 6 to not cooperate in the proceedings, and his malingering is to such an extent that it 7 overshadows other diagnostic possibilities.” (Id. at 2.) Dr. Potts concluded that Speer “is 8 clearly competent and can effectively assist his attorney in his defense, if he chooses.” 9 Speer’s counsel successfully moved to have Dr. Potts’s report sealed. (ME 5/6/03.) 10 As described in his report dated August 23, 2003, Dr. Toma administered the 11 Wechsler Adult Intelligence Scale–III, which resulted in a full-scale IQ score of 77. (EIR 12 200, Ex. B at 6.) This placed Speer in the borderline range of intellectual functioning, with 13 an IQ score of 70 or below being one of the criteria for a diagnosis of intellectual disability. 14 (Id.) However, like Dr. Potts, Dr. Toma found that Speer “attempted to malinger cognitive 15 deficits.” (Id.) His score of 77 was therefore a “gross underestimate of his true abilities,” 16 which were “more likely in the average range of intellectual functioning.” (Id. at 6, 7.) 17 In March 2005, counsel forwarded Dr. Toma’s report and test data to Dr. Parrish, at 18 her request. Counsel then moved for a competency evaluation pursuant to Rule 11 of the 19 Arizona Rules of Criminal Procedure. (EIR 199.) 20 Under Rule 11 proceedings, the defense must disclose reports of “mental health 21 experts who have personally examined a defendant or any evidence in the particular case, 22 together with the results of mental examinations and of scientific tests, experiments or 23 comparisons, including all written reports and statements, made by them in connection with 24 the particular case.” Ariz. R. Crim. Pro. 11.4(b). Prior to the hearing, the defense stipulated 25 to a number of exhibits, including the reports of Dr. Potts and Dr. Toma. (RT 1/12/06 at 6– 26 7.) Following the hearing, in January 2006, Speer was found competent. (ME 2/10/06; EIR 27 264.) 28 - 107 - 1 As discussed above, at the penalty phase of trial, Speer presented mitigating 2 evidence from three experts, including Dr. Parrish, who testified that Speer suffered from 3 cognitive impairments. (See RT 2/27/07 at 119–51; RT 3/1/07 at 52–96; RT 3/8/07 at 23– 4 49.) In rebuttal, the State’s expert, Dr. Bayless, testified that he found support in the reports 5 of Drs. Potts and Toma for his diagnosis of antisocial personality disorder and for his 6 opinion that Speer would attempt to malinger mental illness when doing so would be to his 7 advantage. (RT 3/21/07 at 37–39.) 8 During the PCR proceedings, Speer alleged that counsel were ineffective in 9 permitting dissemination of the reports. (PCR Pet. at 64.) The court disagreed, first noting 10 that “[b]oth experts were appointed by the Court, not retained by trial counsel, which means 11 that the reports they generated were available to both sides.” (ME 5/20/15 at 20.) The court 12 then explained that the defense expert Dr. Parrish, who testified at the competency hearing 13 and at sentencing, used the raw data from Dr. Toma’s testing and therefore “trial counsel 14 were obligated to disclose Dr. Toma’s report and raw data to the State; otherwise, the State 15 would have had additional grounds to challenge the defense expert’s conclusions/diagnosis 16 as being based on incomplete information,” which “would have undermined the validity of 17 her opinion.” (Id.) The court held that Dr. Potts’s report was “likewise relevant and 18 discoverable” because Speer’s competency was at issue. (Id.) Since the reports were 19 available to both sides, “there can be no deficient performance by trial counsel in 20 disseminating the reports of both Dr. Toma and Dr. Potts to the prosecutor.” (Id.) 21 Even if counsel had “attempted to withhold the reports” of Drs. Potts and Toma, the 22 court would have ordered disclosure to the State because “the records were relevant to the 23 mental health mitigation Defendant offered at the penalty phase of his trial.” (Id.) The court 24 continued: 25 26 27 28 Defendant called three mental health experts who opined that he had PTSD, a major depressive disorder, had substance abuse issues, had cognitive impairment, learning disabilities, behavioral disorders, and emotional problems. The purpose for presenting this mitigation evidence was to convince the jury to give him leniency. Therefore, it was appropriate for the State, through its expert, Dr. Bayless, to offer Dr. Toma’s and Dr. Potts’ - 108 - 1 2 3 4 5 6 opinions in rebuttal to present their opinions that Defendant was malingering. Accordingly, their testimony was not unfairly prejudicial. Whether to disclose or whether to await a court order is a tactical decision reserved to trial counsel and, under these circumstances where an order would have issued anyway, the tactical decision to disclose was reasonable. Trial counsel’s actions do not demonstrate deficient performance. . . . (Id. at 20–21.) 7 Finally, the court found that no prejudice arose from “the introduction of relevant 8 and admissible mitigation evidence in rebuttal to the thrust of Defendant’s mitigation. . . .” 9 (Id. at 21.) Accordingly, “the sentencing decision would have been no different had trial 10 counsel not provided Dr. Toma’s and Dr. Potts’ reports to the prosecution or objected to 11 their admission in the penalty phase.” (Id.) 12 Speer raises several arguments challenging the PCR court’s ruling that the State was 13 entitled to the reports. First he argues that Dr. Potts’s report and his opinion about Speer’s 14 competence were based in “part on statements that Speer made about the case and his 15 defense representation,” which it was impermissible for the prosecution to use.30 (Doc. 13 16 at 165–66.) Speer does not cite, and the Court cannot locate, any testimony based on the 17 information about the case that Speer shared with Dr. Potts. As reported by Dr. Potts, the 18 only statements Speer made about the charges he was facing were nonsensical responses 19 about stealing or eating pizza in someone’s house. (EIR 86; EIR 200, Ex. A at 3.) Speer 20 also argues, without any supporting authority, that the fact Dr. Potts’s report was sealed 21 30 22 23 24 25 26 27 Rule 11.4(a)(2) provides: An expert’s report completed under Rule 11.3 must be made available to the examined defendant and the State, except that any statement by the defendant about the charged offense or any other charged or uncharged offense (or any summary of such a statement) may be made available only to the defendant. Upon receipt, court staff will copy and provide the expert's report to the court and defense counsel. Defense counsel is responsible for editing a copy of the report for the State. . . . Ariz. R. Crim. P. 11.4 28 - 109 - 1 affected whether it was discoverable by the state and that “trial counsel was under no 2 obligation to turn it over without a court order.” (Id. at 166.) The PCR judge, however, 3 who was also the trial judge, stated it would have ordered disclosure if the defense did not 4 turn over the report. 5 With respect to Dr. Toma’s report, Speer argues that it fell outside Rule 11 6 disclosure provisions because Toma was evaluating Speer for intellectual disability rather 7 than competency and therefore was not acting as a “mental health expert.” (Doc. 13 at 167– 8 68.) Again, however, the PCR court determined that the information was relevant as 9 rebuttal to Speer’s mental health mitigating evidence, without reference to the provisions 10 of Rule 11. The court found that the reports were relevant to the “thrust” of Speer’s 11 mitigation, which consisted of the various mental health diagnoses offered by Speer’s 12 experts. (ME 5/20/15 at 21.) 13 Dr. Parrish also testified that she disagreed with the opinions of Drs. Potts and Toma 14 that Speer was malingering. (RT 3/1/07 at 32–33.) The reports of Potts and Toma therefore 15 constituted proper rebuttal. The evidence from the Potts and Toma reports was “closely 16 tailored” to Speer’s “allegations of mental impairment” because it rebutted the testimony 17 of Speer’s expert and supported one of the criteria for Dr. Bayless’s diagnosis of antisocial 18 personality disorder. See State v. Fitzgerald, 232 Ariz. 208, 217, 303 P.3d 519, 528 (2013) 19 (holding that trial court did not abuse its discretion in admitting rebuttal evidence from 20 competency proceedings, including statements made to Correctional Health Services 21 which suggested he was malingering). 22 Finally, as the PCR court noted, Dr. Parrish requested Dr. Toma’s report and raw 23 data and reviewed that information in reaching her own diagnoses. (ME 5/20/15 at 20; Doc. 24 23-10, Ex. 49.) As Dr. Parrish testified on Speer’s behalf at sentencing, the State was 25 entitled to disclosure of Dr. Toma’s report. See Ariz. R. Evid. 705; Ariz. R. Crim. Proc. 26 15(c), (e). 27 Because the reports were properly available to the prosecution, trial counsel did not 28 perform ineffectively in failing to prevent their disclosure. The failure of an attorney to - 110 - 1 raise a meritless claim or take a futile action fails both Strickland prongs. Gonzalez, 515 2 F.3d at 1016; Jones, 691 F.3d at 1101; Rupe, 93 F.3d at 1445. 3 4 The PCR court’s denial of this claim was a reasonable application of Strickland. Under the doubly deferential standard of Strickland and AEDPA, Claim 17 fails. 5 Claim 19: 6 Speer alleges that trial counsel performed ineffectively in cross-examining and 7 impeaching Dr. Bayless. (Doc. 13 at 173.) Specifically, he claims that counsel “failed to 8 utilize a psychological expert’s assistance in the cross-examination” of Dr. Bayless and 9 “failed to present a psychologist to rebut” Dr. Bayless’s “misleading” testimony. (Id.) 10 Speer argues that the report of his expert Dr. Parrish contained information that counsel 11 should have used to challenge Dr. Bayless’s findings on the tests he administered. Speer 12 also cites the opinions of Dr. Toma, who was retained again during the PCR proceedings 13 and was also critical of Dr. Bayless’s testing methods, results, and diagnoses. 14 Speer raised this claim during the PCR proceedings. The court found Speer could 15 not make a “colorable claim” that trial counsel performed ineffectively by failing to use 16 the information provided by Dr. Parrish to impeach Dr. Bayless. (ME 5/20/15 at 24.) The 17 court explained that “[w]hether to call witnesses, what questions to ask, and how to cross- 18 examine opposing experts are strategic decisions, made after reasonable investigation,” 19 which the court “does not second-guess.” (Id.) 20 21 22 23 24 25 26 27 28 The record indicates that counsel made a strategic decision concerning how he would cross-examine Dr. Bayless regarding his evaluation. The decision was reasonable, as counsel investigated Dr. Bayless’s opinion, asking his own expert to identify and address any perceived shortcomings. Trial counsel called expert witnesses on behalf of Defendant, and cross-examined Dr. Bayless extensively. The extent of cross-examination is within the permissible tactical decisions left to trial counsel and is afforded the presumption that the action is sound trial strategy. Such a decision is “virtually unchallengeable” under Strickland, 466 U.S. at 690. Moreover, there is evidence that trial counsel used some of Dr. Parrish’s suggestions during his cross-examination of Dr. Bayless, which suggests he made a strategic decision as to which of her suggestions to accept and which to reject. For example, trial counsel questioned Dr. Bayless about - 111 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Defendant’s performance on the Shipley scale as Dr. Parrish advised and also followed Dr. Parrish’s advice regarding the use of the DSM-IV to challenge Dr. Bayless’ diagnosis of antisocial personality disorder. Further, trial counsel questioned Dr. Bayless about his alleged failure to take into consideration that the Defendant suffered from PTSD, which was a diagnosis Dr. Parrish made in her Report. The fact that trial counsel did not adopt all of Dr. Parrish’s suggestions is not proof of deficient performance.. . . . (Id. at 24–25) The court then found that Speer had failed to demonstrate prejudice from counsel’s cross-examination of Dr. Bayless: Defendant has also failed to establish a reasonable likelihood of a different outcome had counsel cross-examined Dr. Bayless on these particular topics. Therefore, Defendant has failed to show prejudice under Strickland. The jury evaluated all of the experts offered by both sides and afforded the weight to each expert that they believed to be appropriate. Clearly, they afforded greater weight to Dr. Bayless, which was their prerogative. (Id. at 24.) 15 The court addressed the affidavit of trial counsel Storrs, which it found “to not be 16 persuasive in its consideration of whether certain ‘ineffective assistance’ claims are 17 colorable”: 18 19 20 21 22 23 First, trial counsel consistently says what he should have done without ever explaining why he acted as he did. Second, the Declaration makes no allowances for tactical or strategic decisions, which this Court finds odd considering that Mr. Storrs is an extremely experienced and well-regarded criminal defense lawyer, having been licensed since 1968, having been a criminal law specialist since 1980, and having probably tried as many capital cases as any lawyer currently practicing in Phoenix. Third, trial counsel’s Declaration admits no deficient performance but, even if it did, this Court would not view such an admission as outcome determinative. 24 25 26 27 28 (Id.) (citations omitted). The court then turned to the 2014 declaration of Speer’s “Strickland expert,” attorney Michael Reeves, who stated that counsel performed ineffectively in his crossexamination of Dr. Bayless. (PCR Pet., Ex.2, ¶ 18.) The PCR court considered Reeves’s opinion but did not accord it “significant weight” because “the standard for assessing IAC - 112 - 1 is objective, not subjective, and cannot be evaluated by the opinions of other attorneys 2 second-guessing counsel’s assistance after a death sentence.” (Id. at 26.) The court also 3 noted that it was just as qualified as Reeves “to determine the prevailing professional norms 4 at the time of Defendant’s trial, or to decide whether counsel’s acts or omissions were 5 objectively reasonable under those norms.” (Id.) 6 The court concluded that Speer “cannot demonstrate prejudice, a reasonable 7 probability that the sentencer would have reached a decision for leniency, based on the 8 cross-examination of Dr. Bayless on the points raised by Dr. Parrish and the other evidence 9 presented during the mitigation phase.” (Id.) 10 Speer argues that this ruling was contrary to clearly established federal law and 11 based on an unreasonable determination of the facts. (Doc. 13 at 185, 188.) These 12 arguments fail. 13 “[T]actical decisions at trial, such as refraining from cross-examining a particular 14 witness or from asking a particular line of questions, are given great deference and must 15 similarly meet only objectively reasonable standards.” Dows v. Wood, 211 F.3d 480, 487 16 (9th Cir. 2000); see Brown v. Uttecht, 530 F.3d 1031, 1036 (9th Cir. 2008); see 17 also Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002) (“Decisions about ‘whether to 18 engage in cross-examination, and if so to what extent and in what manner, are . . . strategic 19 in nature’ and generally will not support an ineffective assistance claim.”) (quoting United 20 States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987)); Phoenix v. Matesanz, 233 F.3d 21 77, 83 (1st Cir. 2000) (explaining that choices concerning cross-examination are 22 “prototypical examples of unchallengeable strategy”). Furthermore, a petitioner alleging 23 ineffective assistance of counsel due to counsel’s failure to impeach a witness must 24 demonstrate that, if the witness had been impeached in the manner suggested, there was a 25 reasonable probability that the verdict would have been different. United States. v. Holmes, 26 229 F.3d 782, 789–90 (9th Cir. 2000). 27 The PCR court reasonably found that counsel’s cross-examination of Dr. Bayless 28 was neither deficient nor prejudicial. First, as described above, counsel presented extensive - 113 - 1 mental health mitigation evidence through the testimony of Dr. Parrish and the other 2 experts. 3 Next, Storrs did consult with Dr. Parrish in preparation for his examination of Dr. 4 Bayless. (PCR Pet., Ex. 1, ¶ 13.) He also interviewed Dr. Bayless. (See RT 3/21/07 at 55.) 5 At counsel’s request Dr. Parrish prepared a report to assist him in his cross-examination of 6 Bayless. (PCR Pet., Ex.1, ¶ 14; see id., Ex. 33.) Counsel stated he had no independent 7 recollection of the report and no strategic reason for not using the information it contained 8 in his cross-examination of Dr. Bayless. (Id., ¶¶ 15–16.) As the PCR court noted, however, 9 counsel’s cross-examination of Bayless indicated that he took into account some of Dr. 10 Parrish’s suggested lines of attack, including challenging Bayless’s diagnosis of antisocial 11 personality disorder and his failure to consider whether Speer suffered from PTSD. (See 12 RT 3/21/07 at 178–88.) 13 Although his focus was not on the issues highlighted by Dr. Parrish, counsel 14 thoroughly cross-examined Dr. Bayless. His emphasis was on the childhood risk factors 15 identified in Dr. Miller’s report and testimony and the research behind those factors. (Id. 16 at 55–150.) This line of questioning reminded the jury of those factors and exposed Dr. 17 Bayless’s lack of familiarity with the relevant research supporting the factors. 18 The fact that counsel interviewed Dr. Bayless, consulted with Dr. Parrish, and used 19 some of her input in his cross-examination, supports the PCR court’s determination that 20 counsel’s approach to questioning Bayless was tactical and the product of a reasonable 21 investigation and therefore, under Strickland, “virtually unchallengeable,” 466 U.S. at 690. 22 (ME 5/20/15 at 24.) 23 Speer argues that under clearly established federal law, counsel were required to 24 consult with an expert and failure to do so rendered their strategy with respect to cross- 25 examining Dr. Bayless unreasonable. (Doc. 13 at 185–87.) In support of this argument 26 Speer cites Ake v. Oklahoma, 470 U.S. 68 (1985), for the proposition that counsel must 27 obtain expert assistance when the facts revealed by an investigation so require. He also 28 cites Turner v. Duncan, 158 F.3d 449, 456 (9th Cir. 1998), for the proposition that failure - 114 - 1 to use available psychiatric information that supports the defense constitutes ineffective 2 assistance, and Browning v. Baker, 875 F.3d 444, 473 (9th Cir. 2017), which held that 3 “investigation must determine strategy, not the other way around.” (Id.) These cases do not 4 support the argument that defense counsel performed ineffectively. 5 Counsel retained three experts who testified on Speer’s behalf at sentencing. 6 Counsel directed one of those experts, Dr. Parrish, to prepare a report addressing Dr. 7 Bayless’s findings. To suggest that counsel failed to investigate Speer’s mental health or 8 retain expert assistance before making any strategic decisions is therefore contrary to the 9 record. Moreover, the choice of what type of expert to use is one of trial strategy and 10 deserves “a heavy measure of deference.” Turner v. Calderon, 281 F.3d 851, 876 (9th Cir. 11 2002) (quoting Strickland, 466 U.S. at 691) (finding trial counsel not ineffective for using 12 a general psychological expert rather than one specialized in the effects of PCP); Harris v. 13 Vasquez, 949 F.2d 1497, 1525 (9th Cir. 1990) (“It is certainly within the ‘wide range of 14 professionally competent assistance’ for an attorney to rely on properly selected experts.”). 15 Counsel is not constitutionally ineffective because, with the benefit of hindsight, other 16 strategies or experts may have been a better choice. Id. 17 Ultimately, as the United States Supreme Court has explained, “it is difficult to 18 establish ineffective assistance when counsel’s overall performance indicates active and 19 capable advocacy.” Richter, 562 U.S. at 111 (finding counsel did not perform ineffectively 20 in failing to present expert witness to rebut state’s evidence). Speer’s counsel provided 21 “active and capable advocacy” throughout Speer’s trial, including at the penalty phase; see 22 Babbitt, 151 F.3d at 1176 (“[C]ounsel did far more than a cursory investigation.”). 23 Speer next contends that the PCR court’s ruling was based on an unreasonable 24 determination of the facts. (Doc. 13 at 188.) Specifically, Speer argues that the court’s 25 “factfinding procedures were unreasonable” because the court failed to discuss Dr. Toma’s 26 report and because it found that counsel followed some of Dr. Parrish’s suggestions when 27 cross-examining Dr. Bayless. (Id. at 189–90.) In support of the latter argument, Speer cites 28 - 115 - 1 counsel Storr’s statement that he had no strategic reason not to use Dr. Parrish’s 2 information to impeach Dr. Bayless or to cross-examine him thoroughly. 3 The PCR court correctly found that Storr’s declaration was not “outcome 4 determinative.” (ME 5/20/15 at 24.) The fact that counsel “falls of his sword” in retrospect 5 is “not dispositive” of a claim of ineffective assistance. Carter v. Davis, 946 F.3d 489, 524 6 (9th Cir. 2019). Instead, “a court ‘must judge the reasonableness of counsel’s challenged 7 conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.’” Id. 8 (quoting Strickland, 466 U.S. at 690); see McAfee v. Thurmer, 589 F.3d 353, 356 (7th Cir. 9 2009) (explaining that an attorney’s “reflection after the fact is irrelevant to the question of 10 ineffective assistance of counsel”). 11 Counsel’s mea culpa, therefore, does not relieve the Court of its role in assessing 12 the reasonableness of counsel’s cross-examination of Dr. Bayless and applying the 13 presumption that counsel “rendered adequate assistance and made all significant decisions 14 in the exercise of reasonable professional judgment.” Carter, 946 F.3d at 524 (quoting 15 Strickland, 466 U.S. at 690). 16 The fact that the PCR court did not discuss Dr. Toma’s 2013 declaration does not 17 render the factfinding process unreasonable. “[S]tate courts are not required to address 18 every jot and tittle of proof suggested to them, nor need they ‘make detailed findings 19 addressing all the evidence before [them].’” Taylor v. Maddox, 366 F.3d 992, 1001 (9th 20 Cir. 2004) (quoting Miller–El I, 537 U.S. at 347), overruled on other grounds by Murray 21 (Robert) v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014). “To fatally undermine the 22 state fact-finding process, and render the resulting finding unreasonable, the overlooked or 23 ignored evidence must be highly probative and central to petitioner’s claim.” Id. 24 Dr. Toma’s 2013 declaration is not highly probative and central to this ineffective 25 assistance claim. The claim alleges that trial counsel ignored Dr. Parrish’s report when 26 cross-examining Dr. Bayless in 2007. Like Dr. Parrish, Dr. Toma offered a critique of Dr. 27 Bayless’s choice of tests and testing methodology. (PCR Pet., Ex’s 33, 34.) To focus on 28 - 116 - 1 Dr. Parrish’s report, which was the basis of the ineffective assistance allegation, did not 2 fatally undermine or make unreasonable the PCR court’s analysis of the claim. 3 Speer challenges specific findings of the PCR court, including the court’s 4 determination that counsel did adopt in his cross-examination some of Dr. Parrish’s 5 critiques of Dr. Bayless despite counsel’s avowal otherwise. (Doc. 13 at 189.) The PCR 6 court did not, however, engage in a post hoc rationalization, as Speer alleges. (Id. at 189– 7 90.) The court simply recounted the lines of questions counsel posed to Dr. Bayless. 8 Reasonable minds reviewing this record could agree with PCR court’s factual findings. 9 Brumfield, 576 U.S. at 314. 10 Finally, Speer has not shown there was a reasonable probability the jury would have 11 voted for a life sentence if counsel had impeached Dr. Bayless in the manner Speer 12 advocates. The jury determined that death was the appropriate sentence notwithstanding 13 the extensive mitigating evidence counsel presented about Speer’s mental health and the 14 childhood risk factors he faced. Counsel’s cross-examination of Bayless was likewise 15 extensive even in the absence of specific attacks on the testing Bayless performed. Speer 16 has failed to show that if trial counsel had relied more thoroughly on Dr. Parrish’s opinions 17 in cross-examining Dr. Bayless, the “likelihood of a different result” was “substantial, not 18 just conceivable.” Richter, 562 U.S. at 112. 19 Conclusion 20 The PCR court’s denial of the claim that counsel’s cross-examination of Dr. Bayless 21 was constitutionally ineffective was neither contrary to nor an unreasonable application of 22 Strickland, nor was it based on an unreasonable determination of the facts. Claim 19 23 therefore does not satisfy the doubly deferential standard governing ineffective assistance 24 claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S. at 15. 25 E. 26 Speer raises several claims based on the allegation that his sentence was the product 27 Eddings Error of an unconstitutional “causal nexus” test. These claims are without merit. 28 - 117 - 1 Claims 18, 20, and 21: 2 In Claim 20, Speer alleges that in reviewing his death sentence the Arizona Supreme 3 Court applied an unconstitutional causal nexus test to his mitigating evidence under 4 McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015), and Tennard v. Dretke, 542 U.S. 274 5 (2004), and therefore “failed to adequately apply its independent review.” (Doc. 13 at 190– 6 202.) 7 In Claim 21, Speer alleges that the Arizona Supreme Court applied an impermissible 8 causal nexus test “when evaluating sentencing errors at trial” in violation of Eddings v. 9 Oklahoma, 455 U.S. 104 (1982), and Tennard. (Doc. 13 at 203.) He argues that the “causal 10 nexus test also tainted Speer’s trial . . . by way of insufficient jury instructions, 11 prosecutorial misconduct, the lack of special verdict forms for mitigating factors, and the 12 trial court’s refusal to allow the jury to consider residual doubt at sentencing.” (Id. at 193, 13 203–11.) 14 15 In Claim 18, Speer alleges that counsel performed ineffectively in failing to object to the prosecutor’s causal nexus argument. (Id. at 168.) 16 Clearly-established federal law 17 The sentencer in a capital case may “not be precluded from considering, as a 18 mitigating factor, any aspect of a defendant’s character or record and any of the 19 circumstances of the offense that the defendant proffers as a basis for a sentence less than 20 death.” Eddings, 455 U.S. at 110 (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978) 21 (plurality opinion)). Accordingly, a state cannot adopt a “causal nexus” rule—that is, a rule 22 precluding a sentencer from considering mitigating evidence unless a causal connection is 23 established between the evidence and the murder. Tennard, 542 U.S. at 287. 24 Courts have emphasized, however, that the sentencer may consider “causal nexus . 25 . . as a factor in determining the weight or significance of mitigating evidence.” Lopez v. 26 Ryan, 630 F.3d 1198, 1204 (9th Cir. 2011), overruled on other grounds by McKinney, 813 27 F.3d at 819; see McGill, 16 F.4th at 683 (“But Eddings does not hold that evidence of a 28 causal nexus is irrelevant to the trier of fact.”); Sansing v. Ryan, 997 F.3d 1018, 1052 (9th - 118 - 1 Cir. 2021) (finding no Eddings error where sentencing court afforded “minimal weight” to 2 mitigating circumstance not causally linked to the crime). As the Arizona Supreme Court 3 explained in Speer, “although a jury may not be prevented from hearing mitigation 4 evidence lacking a causal nexus to the crime, absence of such a nexus can be considered in 5 evaluating the strength of that evidence.” 221 Ariz. at 461, 212 P.3d at 799 (citing 6 Anderson, 210 Ariz. at 350, 111 P.3d at 392). In sum, “[t]he sentencer, and the [court of 7 appeals] on review, may determine the weight to be given relevant mitigating evidence. 8 But they may not give it no weight by excluding such evidence from their consideration.” 9 Eddings, 455 U.S. at 114–15. 10 In McKinney the Ninth Circuit held that the Arizona Supreme Court, for a period of 11 more than 15 years, from State v. Wallace, 160 Ariz. 424, 773 P.2d 983 (1989), to 12 Anderson, violated Eddings in its capital sentencing analysis by requiring a defendant to 13 show a causal nexus between his proffered mitigating evidence and the crime. McKinney, 14 813 F.3d at 802. In 2005, with its decision in Anderson, “the Arizona Supreme Court finally 15 abandoned its unconstitutional causal nexus test for nonstatutory mitigation.” McKinney, 16 813 F.3d at 817. 17 Claim 20 18 1. 19 Speer first argues that his due process rights were violated when the Arizona 20 Supreme Court applied an unconstitutional causal nexus test to its independent review of 21 his death sentence. Causal nexus 22 Speer did not raise this claim during the PCR proceedings. (Doc. 13 at 192.) He 23 argues, however, that the claim was exhausted by the Arizona Supreme Court’s 24 independent review of his death sentence. (Id.) This is incorrect. The Ninth Circuit has held 25 that the Arizona Supreme Court’s independent review does not exhaust a claim “that the 26 Arizona Supreme Court failed independently to review and reweigh mitigation and 27 aggravation evidence.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005). 28 Speer contends that the claim’s default is excused under Martinez by the ineffective - 119 - 1 assistance of PCR counsel. (Doc. 13 at 192.) This also is incorrect. Under Martinez the 2 ineffective assistance of PCR counsel can excuse the default only of claims of ineffective 3 assistance of trial counsel. See Martinez (Ernesto), 926 F.3d at 1225; Pizzuto, 783 F.3d at 4 1177. Accordingly, Claim 20 remains defaulted and barred from federal review. The claim 5 is also meritless. 6 The Arizona Supreme Court considered Speer’s appeal in 2009, well outside the 7 time period with which the Ninth Circuit in McKinney was concerned. Speer argues 8 nonetheless that the court applied a causal nexus test by citing cases that were decided 9 during the period identified in McKinney. (Doc. 13 at 194–96.) This is simply incorrect. 10 The cases discussed by Speer and cited by the Arizona Supreme Court in his case, 11 are Anderson; State v. Pandeli, 215 Ariz. 514, 526, 161 P.3d 557, 569 (2007); State v. 12 Ellison, 213 Ariz. 116, 144, 140 P.3d 899, 927 (2006); and State v. Hampton, 213 Ariz. 13 167, 185, 140 P.3d 950, 968 (2006). In Anderson the Arizona Supreme Court 14 acknowledged that “a jury cannot be prevented from giving effect to mitigating evidence 15 solely because the evidence has no causal ‘nexus’ to a defendant’s crimes.” 210 Ariz. at 16 349, 111 P.3d at 391 (citing Tennard, 542 U.S. at 283–87). Subsequently, in State v. 17 Newell, the Arizona Supreme Court held that, “We do not require that a nexus between the 18 mitigating factors and the crime be established before we consider the mitigation evidence. 19 But the failure to establish such a causal connection may be considered in assessing the 20 quality and strength of the mitigation evidence.” 212 Ariz. 389, 405, 132 P.3d 833, 849 21 (2006) (citing Tennard, 542 U.S. at 287, and Anderson, 210 Ariz. at 350, 111 P.3d at 392). 22 Like Speer’s own appeal, Pandeli, Ellison, and Hampton were decided after 23 Anderson and Newell, when, as the Ninth Circuit recognized in McKinney, the Arizona 24 Supreme Court had “abandoned” the causal nexus test. McKinney, 813 F.3d at 817. 25 However, even if Speer’s appeal had been decided during the period identified in 26 McKinney, he would not be entitled to relief on his causal-nexus claim. 27 In Greenway v. Ryan, the Ninth Circuit explained: “We said in McKinney that the 28 Arizona courts had ‘consistently’ applied the causal-nexus test. We did not say, however, - 120 - 1 that Arizona had always applied it.” 866 F.3d 1094, 1095 (9th Cir. 2017) (citing McKinney, 2 813 F.3d at 803). Determining whether a causal-nexus violation occurred requires an 3 examination of the specific state court ruling. Id. as 1096; see Apelt v. Ryan, 878 F.3d 800, 4 839–40 (9th Cir. 2017). 5 Contrary to Speer’s argument, nothing in the Arizona Supreme Court’s opinion 6 suggests that the court applied a causal nexus test. In carrying out its independent review, 7 the court “thoroughly reviewed the record.” Speer, 221 Ariz. at 464, 212 P.3d at 802. The 8 court found that a number of mitigating circumstances had been established. For example, 9 Speer experienced a “difficult childhood” in a “dysfunctional home” with pervasive drug 10 abuse, including drug abuse by Speer’s mother while she was pregnant with him. Id. He 11 was referred to juvenile court 26 times and incarcerated 12 times from ages 14 to 18. Id. 12 Speer was physically abused by his parents and sexually abused at age five by a female 13 relative. Id. During his early school years his mother refused recommended evaluations for 14 suspected learning disabilities. Id. Speer abused alcohol and drugs. He began using drugs 15 in his early adolescence and overdosed on methamphetamines at 13. Id. He was sent to 16 drug treatment as a juvenile. He became addicted to heroin and apparently committed the 17 March 14 burglary to get money to buy heroin. Id. 18 The court found, in the light of conflicting expert evidence, that Speer suffered from 19 depression and had an IQ between 87 and 97. Id. at 465, 212 P.3d at 803. The court rejected 20 Speer’s diagnosis of cognitive impairment, noting that “the record makes plain that he had 21 a clear ability to think ahead and understand the wrongfulness of his actions” as shown by 22 his planning of the murder from jail, use of code in communicating with Brian Womble, 23 ability to evade MCSO phone restrictions, and directives that Brian dispose of 24 incriminating evidence. Id. 25 26 27 28 Finally, the court found that Speer had proved that his execution would have negative effects on his family. Id. The court then summarized its findings with respect to Speer’s mitigating evidence as balanced against the aggravating factors: - 121 - 1 2 3 4 5 6 7 8 9 [T]he record is not bereft of mitigating evidence. Among other things, Speer suffered a difficult childhood and serious drug abuse. But that history is not in itself sufficient to warrant leniency in this case. Nor do Speer’s mental health issues warrant leniency under the circumstances of this case. This was not a crime of passion or an impetuous reaction to difficult circumstances. For almost a month, Speer planned the murder of two innocent victims of a burglary that he had committed, with the goal of avoiding the consequences of his prior crime. The three aggravating circumstances—prior serious conviction, witness elimination, and committing the offense while on parole or in custody—are cumulatively entitled to substantial weight. And, the factor of witness elimination is in itself especially weighty, as it involves a direct affront to the functioning of the justice system. 10 11 12 Having considered the entire record, we conclude that the mitigating evidence, in the aggregate, is not sufficiently substantial to call for leniency. Id. (footnote and citation omitted). 13 Far from precluding Speer’s evidence or failing to give it “any mitigating effect,” 14 as Speer argues (Doc. 13 at 197), the Arizona Supreme Court found that a number of 15 mitigating circumstances were proved. The court then evaluated those circumstances in 16 connection with the facts of the crimes. Speer, 221 Ariz. at 465, 212 P.3d at 803. Having 17 done so, the court’s decision to assign limited weight to Speer’s dysfunctional childhood, 18 drug abuse, and mental health problems, was “a choice not foreclosed by Eddings.” 19 Sansing, 997 F.3d at 1042. 20 In arguing that the Arizona Supreme Court applied a causal nexus test in his case, 21 Speer notes that the court cited Hampton for the proposition that a “difficult family 22 background, in and of itself, is not a mitigating circumstance sufficient to mandate leniency 23 in every capital case.” Speer, 221 Ariz. at 465, 212 P.3d at 803 n.10 (quoting Hampton, 24 213 Ariz. at 185, 140 P.3d at 968). The court also cited Ellison, which held that a 25 defendant’s “childhood troubles deserve little value as a mitigator for the murder he 26 committed at age thirty-three.” Id. (quoting Ellison, 213 Ariz. at 144, 140 P.3d at 927). In 27 both Hampton and Ellison, however, the court specifically explained that “[a] defendant is 28 not required to show a nexus between the crime and the mitigation evidence before such - 122 - 1 evidence can be considered.” Ellison, 213 Ariz. at 144, 140 P.3d at 927; see Hampton, 213 2 Ariz. at 185, 140 P.3d at 968 (“[W]hile we ‘do not require that a nexus between the 3 mitigating factors and the crime be established before we consider the mitigation evidence 4 . . . the failure to establish such a causal connection may be considered in assessing the 5 quality and strength of the mitigation evidence.’”) (quoting Newell, 212 Ariz. at 405, 132 6 P.3d at 849). 7 In none of these cases did the court violate Eddings by refusing to consider 8 mitigating evidence offered by the defendant. Rather, the courts permissibly applied 9 “causal nexus . . . as a factor in determining the weight or significance of mitigating 10 evidence.” Lopez, 630 F.3d at 1204; see McGill, 16 F.4th at 683. Citation to cases that 11 explicitly disavowed the causal-nexus test is not evidence that the Speer court applied such 12 a test itself. 13 Hampton, in the passage cited by the court in Speer, cites Wallace, 160 Ariz. at 427, 14 773 P.2d at 986, where the court applied an inappropriate causal-nexus test. According to 15 Speer, this error was transmitted to the Speer court’s decision 20 years later. This argument 16 is unpersuasive. As already recounted, the Arizona Supreme Court abandoned the causal- 17 nexus test in 2005. There is no basis to believe that the court in Speer rejected that 18 precedent, especially when it reiterated the correct standard while citing Tennard, the case 19 that prompted the court to abandon the nexus test. Speer, 221 Ariz. at 461, 212 P.3d at 799; 20 cf. McKinney, 813 F.3d at 803, 826 (noting Arizona Supreme Court’s “strong view of stare 21 decisis”). 22 2. 23 Speer also argues in Claim 20 that the Arizona Supreme Court unreasonably 24 interpreted the facts when it found that his mitigating evidence was not sufficiently 25 substantial to require a life sentence. (Doc. 13 at 198.) He contends that the court minimized 26 evidence of his difficult homelife, unreasonably failed to find that other circumstances, 27 such as his age, were mitigating, and did not give appropriate consideration to his mental 28 health and trauma evidence. (Id. at 199–200.) Reasonableness of factual determinations - 123 - 1 Speer cites Parker v. Dugger, 498 U.S. 308, 321 (1991), and Clemons v. Mississippi, 2 494 U.S. 738, 74 (1990), as cases emphasizing the importance of meaningful appellate 3 review in capital cases. (Doc. 13 at 198.) In support of his argument that the Arizona 4 Supreme Court’s decision in his case was factually unreasonable, Speer relies on other 5 decisions where the court has found the mitigating evidence sufficient to require leniency 6 at sentencing. (Id. at 199–201.) In essence, Speer asks the Court to grant habeas relief based 7 on a proportionality review of Arizona death sentences. 8 Proportionality review of death sentences is not constitutionally required. See 9 McCleskey v. Kemp, 481 U.S. 279, 306 (1987) (citing Pulley v. Harris, 465 U.S. 37, 43 10 (1984)); Allen, 395 F.3d at 1018. Moreover, while “meaningful appellate review” is 11 necessary to ensure that the death penalty is not imposed in an arbitrary or irrational 12 fashion, Pulley, 465 U.S. at 54 (Stevens, J., concurring); Parker, 498 U.S. at 321, the 13 Supreme Court has never held that “independent” or “de novo” review of death sentences 14 is constitutionally mandated. See also Walton v. Arizona, 497 U.S. 639, 655–56 (1990) 15 overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002). The Constitution 16 requires only that an appellate court “consider whether the evidence is such that the 17 sentencer could have arrived at the death sentence that was imposed,” not whether the 18 appellate court itself would have imposed a death sentence. Clemons, 494 U.S. at 749. 19 The Arizona Supreme Court did not violate clearly-established federal law by 20 finding that mitigating circumstances in Speer’s case did not outweigh the aggravating 21 factors. In Poyson v. Ryan, 879 F.3d 875, 893–94 (9th Cir. 2018), the petitioner alleged 22 that his rights under Eddings and Parker were violated when the trial court and Arizona 23 Supreme Court erroneously found that he had not proved substance abuse as a mitigating 24 circumstance. The petitioner argued that he was entitled to habeas relief because his 25 sentence was based on an unreasonable determination of the facts under § 2254(d)(2). Id. 26 at 893. 27 The Ninth Circuit explained that this argument “misunderstands the law.” Id. Even 28 if the state courts made a factual error, a habeas petitioner is entitled to relief only if he can - 124 - 1 demonstrate that his constitutional rights were violated. Id. (citing Wilson v. Corcoran, 562 2 U.S. 1, 5–6 (2010) (per curiam)); see 28 U.S.C. § 2254(a) (providing that habeas relief may 3 be granted “only on the ground” that the petitioner’s custody violated the law). 4 Like the petitioner in Poyson, Speer cannot show a constitutional violation under 5 Eddings or Parker. The Arizona Supreme Court did not apply a causal-nexus test to Speer’s 6 mitigating evidence, so there was no violation of Eddings. 7 At issue in Parker was a decision of the Florida Supreme Court which had affirmed 8 the petitioner’s death sentence after striking two aggravating factors. 498 U.S. at 321. The 9 state supreme court based its decision on an erroneous determination that the trial court 10 had found no mitigation. Id. at 318. In fact, the record established that the trial court had 11 found mitigating circumstances. Id. at 318–20. Having erroneously reviewed the trial 12 court’s decision, the state supreme court “did not come to its own independent factual 13 conclusion, and it did not rely on what the trial judge actually found; it relied on ‘findings’ 14 of the trial judge that bear no necessary relation to this case.” Id. at 322. By striking two 15 aggravating factors and then affirming the death sentence without considering the 16 mitigating circumstances, the Florida Supreme Court “deprived Parker of the 17 individualized treatment to which he is entitled under the Constitution.” Id. 18 The Arizona Supreme Court committed no such error in Speer’s case. In carrying 19 out its independent review, the court thoroughly assessed all of the aggravating factors and 20 mitigating circumstances. Parker does not support the argument that the Arizona Supreme 21 Court’s independent review of Speer’s sentence was constitutionally infirm. 22 Claim 20 is therefore denied. 23 Claim 21 24 Speer alleges that the Arizona Supreme Court unreasonably applied Eddings and 25 Tennard in denying several claims raised on direct appeal. (Doc. 13 at 203.) The allegation 26 is meritless. Prosecutor’s closing argument 27 1. 28 Speer first alleges that the prosecutor included an improper causal-nexus argument - 125 - 1 in her closing argument after the penalty phase of trial. (Doc. 13 at 203–04.) Speer cites, 2 in severely truncated form, the following passage culled from the prosecutor’s closing 3 argument: 4 5 [T]here’s no indication that in the spring of 2002, he was using any drugs. And if he did get his hands on some, he certainly wasn’t using it on a daily basis. 6 7 8 9 10 And how many phone calls did we hear where he plots the murder? 22? So there’s no indication that he was using drugs during the time of the offense, he was on Zoloft for the alleged posttraumatic stress disorder, if he had it, and he’s not brain damaged, then how was his ability to conform his conduct to the requirements of law impaired? How was he unable to control his behavior? How did any of those things have anything to do with why he murdered Adan Soto? 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 They don’t. They do not reduce the degree of his moral culpability or blameworthiness. I suggest that they don’t exist, and they’re being used to try to explain what the defendant’s real issue is, which is he has antisocial personality disorder. (RT 3/27/2007, a.m., 66–67.) Speer also quotes this passage: . . . Paul Speer cares about one person and one person only. He has antisocial personality disorder. He is never going to change. There is nothing about this crime that calls out for mercy for the defendant. He came from a dysfunctional family. So what. We all came from someplace. And we all managed to be law-abiding citizens. (Id. at 72.) On direct appeal, the Arizona Supreme Court rejected Speer’s claim that the prosecutor’s closing argument “improperly limited the jury’s consideration of mitigating factors by urging that evidence lacking a causal nexus to the crime should not be given weight.” Speer, 221 Ariz. at 461, 212 P.3d at 799. The court found no error, citing Anderson and reiterating that “although a jury may not be prevented from hearing mitigation evidence lacking a causal nexus to the crime, absence of such a nexus can be considered in evaluating the strength of that evidence.” Id. (citing Anderson, 210 Ariz. at 350, 111 P.3d at 392). This ruling was not an unreasonable application of Eddings and Tennard. The prosecutor’s argument was a permissible comment on the weight of the proffered - 126 - 1 mitigating evidence. “Once the jury has heard all of the defendant’s mitigation evidence, 2 there is no constitutional prohibition against the State arguing that the evidence is not 3 particularly relevant or that it is entitled to little weight. The prosecutor’s various comments 4 and questions here simply went to the weight of Anderson’s mitigation evidence and were 5 not improper.” Anderson, 210 Ariz. at 350, 111 P.3d at 392; see McGill, 16 F.4th at 683 6 (citing Anderson, 210 Ariz. 327, 111 P.3d 369); McKinney, 813 F.3d at 818 (same); cf. 7 Eddings, 455 U.S. at 114–15 (“The sentencer . . . may determine the weight to be given 8 relevant mitigating evidence.”); McKinney, 813 F.3d at 834 n.22 (“A sentencer is free to 9 assign whatever weight, including no weight, that mitigating evidence deserves under the 10 facts of the case. . . .”) (emphasis in original); Lopez, 630 F.3d at 1204. 11 In Speer’s case, the prosecutor attempted to discount the mitigating value of Speer’s 12 mental health and substance abuse evidence by questioning whether it had been proved and 13 discounting its relationship to the murder. Again, this was permissible. See, e.g., 14 Underwood v. Royal, 894 F.3d 1154, 1171–72 (10th Cir. 2018) (finding state court 15 reasonably applied clearly established federal law in denying petitioner’s Eddings claim 16 where the prosecutor “attacked the quality and strength” of petitioner’s mitigating 17 evidence); United States v. Johnson, 495 F.3d 951, 978 (8th Cir. 2007) (“[A]s long as the 18 jurors are not told to ignore or disregard mitigators, a prosecutor may argue, based on the 19 circumstances of the case, that they are entitled to little or no weight.”) The prosecutor did 20 not tell the jurors they could not consider Speer’s mitigating evidence. 21 Even if the prosecutor’s comments were impermissible, however, any error was 22 cured by the trial court’s instructions on mitigating evidence. The court explained that 23 “[t]he attorneys’ remarks, statements, and arguments are not evidence. . . .” (RT 3/26/07 at 24 72.) The court then instructed the jury as follows: 25 26 27 28 Mitigating circumstances may be offered by the defendant or the State or be apparent from the evidence presented at any phase of these proceedings. You must consider and give effect to all mitigating circumstances that have been raised by any aspect of the evidence. You must disregard any jury instruction that conflicts with this principle. ... - 127 - 1 2 3 4 During this trial each of you individually are required to consider mitigating circumstances, that is, circumstances that do not justify or excuse the offense but which, in fairness and mercy, may be considered as extenuating or reducing the defendant’s moral culpability and blameworthiness and which suggest that life imprisonment is the appropriate punishment. 5 6 7 8 9 10 11 12 You are called upon to make a unique individual assessment about the sentence Paul Speer should receive. The law contemplates that each individual juror may give different value to any particular mitigating circumstance. For example, one juror may find one factor substantial to call for life imprisonment while another juror may give the same factor no value. Any one juror who is persuaded that a mitigating factor exists must consider it in his or her sentencing decision. The determination of what circumstances are mitigating is for each of you to resolve individually, based on all the evidence presented to you. 16 Mitigating circumstances may be any factors presented by the defendant or the State that are relevant in determining whether to impose life imprisonment, including any aspect of the defendant’s character, propensities, that is, tendencies or inclinations, or record, and any of the circumstances of the offense, and any other factor you find relevant to your individual consideration. 17 (Id. at 71, 73–74.) The court next listed the 23 mitigating circumstances proposed by 18 defense counsel. (Id. at 74–75.) 13 14 15 19 Finally, in his closing argument, Speer’s counsel explained to the jury that there 20 “does not have to be a connection” between a mitigating circumstance, such as Speer’s 21 alleged molestation by his aunt, and the crime. (RT 3/27/07 at 6.) He also noted that the 22 jury instructions did not require such a connection. (Id.) 23 The court’s instructions imposed no causal nexus on Speer’s mitigating evidence 24 and defined mitigation in the broadest possible terms, as “any other factor you find relevant 25 to your individual consideration.” (RT 3/26/07 at 74.) 26 In addition, the arguments of counsel do not have the same force as instructions 27 from the court, see Boyde, 494 U.S. at 384, and jurors are presumed to follow such 28 instructions, Weeks v. Angelone, 528 U.S. 225, 234 (2000). - 128 - 1 2 3 4 Based on these considerations, the jury would have understood that it was able to consider all of Speer’s mitigating evidence. The Arizona Supreme Court’s denial of this claim was not an unreasonable application of clearly-established federal law. 5 2. § 13–751(G) 6 Speer next argues that A.R.S. § 13–751(G) unconstitutionally limits mitigation by 7 requiring a causal nexus between the evidence and the murder. (Doc. 13 at 207.) The 8 Arizona Supreme Court denied this claim on direct appeal, finding that the statute did not 9 require such a connection. Speer, 221 Ariz. at 461, 212 P.3d at 799. 10 The court first noted that the text of the statute itself places no such limits on the 11 consideration of mitigating evidence, but instead “allows the jury to consider ‘as mitigating 12 circumstances any factors proffered by the defendant or the state that are relevant in 13 determining whether to impose a sentence less than death, including any aspect of the 14 defendant’s character, propensities or record and any of the circumstances of the offense.’” 15 Id. (quoting § 13–751(G)) (emphasis added by supreme court). The court then noted that 16 the trial judge “specifically instructed the jury that, in addition to specific mitigating factors 17 claimed by Speer, it could ‘consider anything else about the commission of the crime or 18 Paul Speer’s background or character that would mitigate against imposing the death 19 penalty.’ Thus, the jury was entirely free to consider all mitigating evidence, whether or 20 not it had a causal nexus to the murder.” Id. 21 Speer’s only response to the statutory language is to repeat his incorrect argument 22 that McKinney applies to the Arizona Supreme Court’s analysis of mitigating evidence in 23 his case. (Doc. 13 at 207–09.) It does not because, as has been earlier discussed, the 24 decision in Speer fell outside the McKinney time frame and nothing in the decision suggests 25 that the court applied a causal-nexus test. 26 27 The Arizona Supreme Court’s denial of this claim was not an unreasonable application of clearly-established federal law. 28 - 129 - 1 3. 2 Speer argues that his right to due process and meaningful appellate review were 3 denied because the trial court failed to provide a special verdict form for Speer’s mitigating 4 evidence. (Doc. 13 at 209.) The Arizona Supreme Court summarily denied the claim on 5 direct appeal. Speer, 221 Ariz. at 462, 212 P.3d at 800. Special verdict form 6 The Constitution does not require a capital sentencer to document its analysis of 7 mitigating circumstances, as long as the sentencer considers all of the evidence. See Jeffries 8 v. Blodgett, 5 F.3d 1180, 1197 (9th Cir. 1993) (“[D]ue process does not require that the 9 sentencer exhaustively document its analysis of each mitigating factor as long as a 10 reviewing federal court can discern from the record that the state court did indeed consider 11 all mitigating evidence offered by the defendant”) (citing Parker, 498 U.S. at 314–19); see 12 also Jeffers v. Lewis, 38 F.3d 411, 418 (9th Cir. 1994) (explaining that a defendant is not 13 “entitled to a specific listing and discussion of each piece of mitigating evidence under 14 federal constitutional law”). 15 16 The Arizona Supreme Court’s denial of this claim was not an unreasonable application of clearly-established federal law. 17 4. Residual doubt 18 Speer argues that his due process rights were violated by the trial court’s refusal to 19 issue a penalty-phase instruction on residual doubt as a mitigating circumstance. (Doc. 13 20 at 210.) On appeal, the Arizona Supreme Court held that the trial court “acted correctly” 21 because there is no constitutional or statutory right to present residual doubt evidence 22 during the penalty phase and because a residual doubt instruction is not required by Arizona 23 law. Speer, 221 Ariz. at 462, 212 P.3d at 800 (citations omitted). This decision is not an 24 unreasonable application of clearly-established federal law. 25 “[T]he United States Supreme Court has expressly rejected the assertion that a 26 capital defendant has a federal constitutional right to produce evidence of residual doubt at 27 sentencing.” Atwood v. Schriro, 489 F. Supp. 2d 982, 1021 (D. Ariz. 2007) (citing Oregon 28 v. Guzek, 546 U.S. 517, 523–25 (2006)); see Abdul-Kabir v. Quarterman, 550 U.S. 233, - 130 - 1 250–51 (2007) (“[W]e have never held that capital defendants have an Eighth Amendment 2 right to present ‘residual doubt’ evidence at sentencing.”); Franklin v. Lynaugh, 487 U.S. 3 164, 174 (1988) (suggesting there is no constitutional right to present evidence of “residual 4 doubt” because “[s]uch lingering doubts are not over any aspect of petitioner’s character, 5 record, or a circumstance of the offense”) (quotation omitted); see also Holland v. 6 Anderson, 583 F.3d 267, 283 (5th Cir. 2009) (explaining that the Supreme Court “has not 7 recognized a constitutional right to argue ‘residual doubt’ at sentencing,” so the state 8 court’s decision precluding such evidence was neither contrary to nor an unreasonable 9 application of clearly established federal law). 10 Claim 18 11 Speer alleges that counsel performed ineffectively by failing to object to the 12 prosecutor’s closing argument. As previously noted, the Arizona Supreme Court rejected 13 Speer’s causal-nexus arguments, including the claim the prosecutor’s argument was 14 erroneous. Speer, 221 Ariz. at 461, 212 P.3d at 799. 15 Speer raised this claim of ineffective assistance in his PCR petition. The court found 16 the claim precluded and meritless. (PCR Pet. at 72.) With respect to the latter 17 determination, the PCR court explained: 18 19 20 21 22 The State properly argued its belief as to the weight to be afforded mitigation, absent proof of a nexus to the crime. In the instructions to the jury, this Court advised the jurors to “consider and give effect to all mitigating circumstances raised by the evidence”; to determine credibility and weight and to consider “factors that bear on credibility and weight;” and that “each individual juror may give different value to any particular mitigating circumstance.” (PCR Ruling, ME 5/20/15 at 24.) This claim is meritless and is denied on that basis. 23 As explained above, the prosecutor’s remarks were permissible under Anderson and 24 Eddings. Because Speer’s prosecutorial misconduct claim has no merit, counsel cannot be 25 ineffective for failing to object. See e.g., Juan H., 408 F.3d at 1273; Rupe, 93 F.3d at 1444– 26 45; see also Fulks v. United States, 875 F. Supp. 2d 535, 581 (D.S.C. 2010) (finding 27 “counsel was not ineffective for failing to object to the prosecutor’s argument” where the 28 “argument did not imply a strict causal nexus was required, and to the extent the prosecutor - 131 - 1 might have suggested this indirectly, the court’s omnibus jury charge clearly explained to 2 the jury the proper role of mitigating factors in this case. Hence, there was no error by the 3 court or counsel”); Allen v. United States, No. 4:07CV00027 ERW, 2011 WL 1770929, at 4 *40 (E.D. Mo. May 10, 2011) (“Counsel performed reasonably in not objecting to these 5 statements because none of them rose to the level of instructing the jury that they were 6 required to ignore Allen’s mitigating evidence.”). 7 F. 8 Claim 22: 9 Speer alleges that his rights to a fair trial and due process were violated when a juror 10 observed him in handcuffs. (Doc. 13 at 211.) He contends that the Arizona Supreme 11 Court’s denial of this claim was “an unreasonable interpretation of the facts” and “an 12 unreasonable application of clearly established federal law holding that a trial court abuses 13 its discretion in allowing visible restraints in the absence of compelling circumstances.” 14 (Id.) Juror Issues 15 During the penalty phase of trial, Juror 7 reported attending a social event where 16 she sat next to a deputy county attorney. (RT 2/26/07 at 1–11.) The court and counsel 17 questioned the juror about the incident the next morning. (Id.) While she was being 18 questioned, a deputy brought Speer into the courtroom. Speer was wearing pink handcuffs. 19 (Id. at 13–14.) The court immediately told the deputy to remove Speer and bring him back 20 in a few minutes and excused the juror. (Id.) 21 Speer’s attorney moved for a mistrial. (Id. at 15.) The court denied the motion but 22 offered to dismiss Juror 7 and seat the last remaining alternate. (Id. at 15–22.) Speer’s 23 counsel rejected the offer because he believed that Juror 7 would favor voting for a life 24 sentence. (Id. at 17.) 25 Juror 7 was then brought back into the courtroom. (Id. at 27.) She acknowledged 26 seeing Speer’s handcuffs (id.) but stated that did not affect her ability to be fair and 27 impartial about the evidence in the penalty phase (id. at 35). She already knew from the 28 - 132 - 1 trial evidence that Speer was in jail and believed that it was standard procedure for inmates 2 to be in handcuffs. (Id.) 3 Speer conferred with counsel. (Id. at 42.) The court then engaged in a colloquy with 4 Speer and found that, on counsel’s advice, he made a knowing and voluntary waiver of the 5 court’s offer to excuse Juror 7. (Id. at 43–45.) The court admonished the juror not to discuss 6 the issue with the other jurors. 7 In denying this claim on direct appeal, the Arizona Supreme Court first cited Deck 8 v. Missouri, 544 U.S. 622, 633 (2005). Speer, 221 Ariz. at 462, 212 P.3d at 800. Deck held 9 that “the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible 10 to the jury absent a trial court determination, in the exercise of its discretion, that they are 11 justified by a state interest specific to a particular trial.” 544 U.S. at 629. Accordingly, 12 “where a court, without adequate justification, orders the defendant to wear shackles that 13 will be seen by the jury, the defendant need not demonstrate actual prejudice to make out 14 a due process violation.” Id. at 635. 15 The court determined, however, that Speer’s case was “more analogous to 16 inadvertent exposure to a restrained prisoner during transportation than to restraint during 17 trial.” Speer, 221 Ariz. at 463, 212 P.3d at 801. In such cases, the defendant must show 18 actual prejudice. Id. at 463–64, 212 P.3d at 800–01. The court explained: 19 20 21 22 23 24 25 26 27 28 In this case, a single juror saw Speer brought into the courtroom in restraints during a preliminary proceeding. . . . Because Speer was not restrained during trial, the considerations that led the Supreme Court to find inherent prejudice in Deck are not present. See 544 U.S. at 630–32, 125 S. Ct. 2007 (noting that shackling during trial undermines presumption of innocence, interferes with right to assistance of counsel, and diminishes dignity of process); id. at 633, 125 S. Ct. 2007 (noting that shackling during trial suggests that defendant is danger to the community). Given Juror 7’s statements, the superior court did not abuse its discretion in finding that Speer suffered no prejudice from the incident. Moreover, because only one juror saw Speer in restraints, the trial court’s offer to seat an alternate would have obviated any prejudice. Having rejected that offer, Speer cannot now claim error. Id. at 463, 212 P.3d at 801. - 133 - 1 This decision was not an unreasonable application of clearly established federal law. 2 As the Arizona Supreme Court recognized, Deck is distinguishable. There, the defendant 3 was handcuffed and shackled with leg irons and a belly chain throughout the penalty phase 4 of his capital trial. 544 U.S. at 625. The Court held that visibly shackling a defendant inside 5 the courtroom is inherently prejudicial and must be justified by an essential state 6 interest. Id. at 627. 7 Speer was not shackled or handcuffed during any courtroom proceedings. A single 8 juror inadvertently caught a glimpse of him in handcuffs as he was being led into the 9 courtroom. The Supreme Court has not considered whether such a scenario is inherently 10 prejudicial. The Ninth Circuit, however, has “held that visible shackling outside the 11 courtroom—at least when the viewing is brief and accidental—is not inherently prejudicial; 12 instead, a due process violation occurs only if the criminal defendant demonstrates actual 13 prejudice.” Wharton v. Chappell, 765 F.3d 953, 964–65 (9th Cir. 2014). Courts in other 14 cases have likewise found that the glimpse by a juror or jurors of a shackled defendant as 15 he is brought into the courtroom is not inherently or presumptively prejudicial. See, e.g., 16 Williams v. Woodford, 384 F.3d 567, 593 (9th Cir. 2004); Ghent v. Woodford, 279 F.3d 17 1121, 1133 (9th Cir. 2002); United States v. Olano, 62 F.3d 1180, 1190 (9th Cir. 1995). As 18 the court in Wharton explained, one reason to distinguish between “shackling in open court 19 and shackling during transportation” is the fact the jurors are aware that defendants may 20 be in custody and that it is a regular practice to handcuff inmates while they are being 21 transported. 765 F.3d at 965 (citing, e.g., United States v. Halliburton, 870 F.2d 557, 561 22 (9th Cir. 1989)). 23 In Wharton, some jurors saw the petitioner being escorted through the public 24 hallways of the courthouse in a “chain gang” of other inmates. Id. at 958, 965. He was not 25 shackled while in the courtroom. Id. at 965–67. In this scenario, the petitioner was required 26 to “demonstrate actual prejudice.” Id. at 966. The court of appeals held that the petitioner 27 did not make that showing. Id. at 966–67. The court noted the strong evidence of the 28 - 134 - 1 petitioner’s guilt. The court also explained that “jurors likely understood that the 2 transportation shackling was a regular part of his custody.” Id. 3 These factors support a finding that Speer was not prejudiced by the fact that a single 4 juror saw him in handcuffs as he was being brought into the courtroom. The evidence 5 against Speer was strong, and the juror believed Speer was in custody and that it was 6 standard procedure for inmates to be handcuffed. Finally, the fact that Speer was 7 unhandcuffed while inside the courtroom “suggested that [he] was not a dangerous person.” 8 Id. Under these circumstances, Speer has not shown that he was prejudiced by Juror 7’s 9 glimpse of him in handcuffs. 10 The Arizona Supreme Court’s denial of this claim was neither contrary to nor an 11 unreasonable application of clearly established federal law nor was it based on an 12 unreasonable determination of the facts. Claim 22 is denied. 13 Claim 25: 14 Speer alleges that jurors considered inadmissible and prejudicial extrinsic evidence 15 during the penalty phase of his trial in violation of the Sixth, Eighth, and Fourteenth 16 Amendments. (Doc. 13 at 234.) He did not raise this claim in state court but contends, 17 incorrectly, that its default is excused by the ineffective assistance of appellate and PCR 18 counsel. (Id..) Again, ineffective assistance of appellate counsel may be used as cause to 19 excuse a procedural default only where the particular ineffective assistance allegation was 20 first exhausted in state court as an independent constitutional claim. See Carpenter, 529 21 U.S. at 453; Carrier, 477 U.S. at 489–90. Speer did not raise such a claim of ineffective 22 assistance of appellate counsel. Under Martinez the ineffective assistance of PCR counsel 23 can excuse the default only of claims of ineffective assistance of trial counsel. See Martinez 24 (Ernesto), 926 F.3d at 1225; Pizzuto, 783 F.3d at 1177. 25 Claim 25 remains procedurally defaulted and is barred from federal review. 26 G. 27 Claim 23: 28 Speer alleges that the trial court “improperly coerced the jury” when it reported Challenges to Jury Instructions - 135 - 1 being deadlocked during penalty-phase deliberations. (Doc. 13 at 216.) Speer 2 acknowledges that he did not raise this claim in state court. (Id.) He contends that its default 3 is excused by the ineffective assistance of appellate and PCR counsel. (Id. at 225–26.) 4 Again, this is incorrect. First, as noted previously, ineffective assistance of appellate 5 counsel may be used as cause to excuse a procedural default only where the particular 6 ineffective assistance allegation was first exhausted in state court as an independent 7 constitutional claim. See Carpenter, 529 U.S. at 453; Carrier, 477 U.S. at 489–90. Speer 8 did not raise such a claim of ineffective assistance of appellate counsel. Second, under 9 Martinez the ineffective assistance of PCR counsel can excuse the default only of claims 10 of ineffective assistance of trial counsel. See Martinez (Ernesto), 926 F.3d at 1225; Pizzuto, 11 783 F.3d at 1177. Claim 23 remains procedurally defaulted and is barred from federal 12 review. 13 Claim 24: 14 Speer argues that his rights under the Sixth, Eighth, and Fourteenth Amendments 15 were violated by the trial court’s failure to instruct the jury that to find that death was the 16 appropriate sentence it had to determine beyond a reasonable doubt that the aggravating 17 factors outweighed the mitigating circumstances. (Doc. 13 at 226.) The Arizona Supreme 18 Court summarily denied this claim on direct review. Speer, 221 Ariz. at 467, 212 P.3d at 19 805. The court’s decision does not entitle Speer to habeas relief. 20 Speer argues that in Hurst v. Florida, 577 U.S. 92 (2016), the Supreme Court held 21 capital jurors must make their weighing determination—aggravating versus mitigating 22 factors—beyond a reasonable doubt. (Doc. 13 at 228–29.) This argument fails. 23 First, Hurst was not clearly-established federal law at the time the Arizona Supreme 24 Court reviewed Speer’s death sentence. See Underwood v. Royal, 894 F.3d 1154, 1186 25 (10th Cir. 2018) (“Hurst post-dates the [Oklahoma Court of Criminal Appeal’s] decision 26 and thus cannot serve as clearly established federal law for purposes of our review under 27 AEDPA.”) (citing Greene v. Fisher, 565 U.S. 34, 38 (2011)). 28 - 136 - 1 In Hurst the Court held that Florida’s capital sentencing scheme violated Ring v. 2 Arizona, 536 U.S. 584 (2002). Ring invalidated Arizona’s capital sentencing statute under 3 which a judge made the factual findings necessary to expose a defendant to a death 4 sentence. Under the Florida scheme, a jury rendered an advisory verdict while the judge 5 made the ultimate factual determinations necessary to sentence a defendant to death. Hurst, 6 577 U.S. at 98. The Court held that this procedure was invalid because it “does not require 7 the jury to make the critical findings necessary to impose the death penalty.” Id. In Hurst 8 the Supreme Court simply applied Ring to Florida’s capital sentencing statutes. 9 Contrary to Speer’s argument, Hurst does not hold that a jury is required to find 10 beyond a reasonable doubt that the aggravating factors outweigh the mitigating 11 circumstances. Hurst held only that Florida’s scheme, in which the jury rendered an 12 advisory sentence but the judge made the findings regarding aggravating and mitigating 13 factors, violated the Sixth Amendment. Id. at 97. 14 Hurst did not address the process of weighing aggravating and mitigating 15 circumstances and “made no holding regarding [the] determination . . . that the mitigators 16 do not outweigh the aggravators.” United States v. Tsarnaev, 968 F.3d 24, 88–89 (1st Cir. 17 2020), reversed on other grounds, 142 S. Ct. 1024 (2022). The Supreme Court has held 18 that the sentencer may be given “unbridled discretion in determining whether the death 19 penalty should be imposed after it has found that the defendant is a member of the class 20 made eligible for that penalty.” Zant v. Stephens, 462 U.S. 862, 875 (1983); see Tuilaepa 21 v. California, 512 U.S. 967, 979–80 (1994). In Zant the Court explained that “specific 22 standards for balancing aggravating against mitigating circumstances are not 23 constitutionally required.” Id. at 875 n.13; see Franklin, 487 U.S. at 179 (“[W]e have never 24 held that a specific method for balancing mitigating and aggravating factors in a capital 25 sentencing proceeding is constitutionally required.”). 26 In McKinney v. Arizona, 140 S. Ct. 702, 707 (2020), the Court reiterated that “a jury 27 must find the aggravating circumstance that makes the defendant death eligible.” The Court 28 explained, however, that “in a capital sentencing proceeding just as in an ordinary - 137 - 1 sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to 2 weigh the aggravating and mitigating circumstances or to make the ultimate sentencing 3 decision within the relevant sentencing range.” Thus, “Ring and Hurst did not require jury 4 weighing of aggravating and mitigating circumstances.” Id. at 708. If jury weighing is not 5 required, there cannot be a standard for that weighing. Finally, as the Court announced in McKinney, Hurst does “not apply retroactively 6 7 on collateral review.” Id. The Arizona Supreme Court’s denial of this claim was neither contrary to nor an 8 9 unreasonable application of clearly established federal law. Claim 24 is denied. 10 H. 11 Claim 26: 12 Speer alleges that he was denied his right to effective assistance of appellate counsel. 13 (Doc. 13 at 245.) The claim consists of seven subclaims.31 Speer contends that he exhausted 14 two of the subclaims, (1) and (3), by raising them in his PCR petition, where they were 15 denied on the merits. (Id.; see ME 5/20/15 at 12 and 23.) Respondents argue that Speer 16 failed to exhaust those subclaims because he did not include them in his petition for review. 17 (Doc. 16 at 100; see PR at 22–23, 34–38.) Respondents are correct. Speer’s failure to 18 include the claims in his petition for review renders them unexhausted. See Boerckel, 526 19 U.S. at 848; Swoopes, 196 F.3d 1008 (holding that capital prisoners must seek review in 20 Arizona Supreme Court to exhaust claims). In addition, as discussed above, the subclaims 21 are meritless. Ineffective Assistance of Appellate and PCR Counsel 22 23 24 25 26 27 28 31 Speer alleges that appellate counsel was ineffective based on his failure to raise claims (1) challenging the accomplice instruction and trial counsel’s failure to object to and correct the instruction; (2) that trial counsel were ineffective for failing to move to vacate Speer’s conviction and sentence on the basis of conflicting theories of prosecution; (3) that the trial court violated Speer’s confrontation rights; (4) alleging prosecutorial misconduct; (5) presenting an independent review argument; and alleging (6) juror misconduct and (7) jury coercion. - 138 - 1 The parties agree that the five remaining subclaims are unexhausted because Speer 2 did not raise them in state court. (Doc. 13 at 245; Doc. 16 at 100.) Speer contends that their 3 default is excused under Martinez by the ineffective assistance of PCR counsel. As has 4 already been noted, however, Martinez applies only to claims of ineffective assistance of 5 trial counsel, not to claims of ineffective assistance of appellate counsel. Davila, 137 S. Ct. 6 at 2062–63, 2065–66. 7 8 9 The allegations in Claim 26 are all procedurally defaulted and barred from federal review. Claim 26 is denied. Claim 27: 10 Speer alleges that his PCR counsel were constitutionally ineffective. (Doc. 13 at 11 253.) The ineffective assistance of PCR counsel is not cognizable as an independent 12 constitutional claim. See 28 U.S.C. § 2254(i) (“[T]he ineffectiveness or incompetence of 13 counsel during Federal or State collateral post-conviction proceedings shall not be a ground 14 for relief.”); Coleman, 501 U.S. at 752 (explaining that because there is no constitutional 15 right to an attorney in PCR proceedings, “a petitioner cannot claim constitutionally 16 ineffective assistance of counsel in such proceedings”); Mendoza v. Sec’y, Fla. Dep’t of 17 Corr., 659 F.App’x 974, 982 (11th Cir. 2016) (“[T]o any extent Mendoza arguably wishes 18 to raise a claim that his state post-conviction counsel was ineffective, such a claim would 19 be futile because it is not cognizable.”). Claim 27 is denied. 20 I. Cumulative Prejudice 21 Claim 28: 22 Speer alleges that his conviction and sentence must be vacated due to the cumulative 23 prejudicial effect of the errors in his case (Doc. 13 at 259.) The parties agree that the federal 24 basis of this claim was addressed in state court. The claim, however, is meritless. 25 The United States Supreme Court has not specifically recognized the doctrine of 26 cumulative error as an independent basis for habeas relief. See Lorraine v. Coyle, 291 F.3d 27 416, 447 (6th Cir. 2002) (“The Supreme Court has not held that distinct constitutional 28 claims can be cumulated to grant habeas relief.”); cf. Morris v. Sec’y Dep’t of Corr., 677 - 139 - 1 F.3d 1117, 1132 n.3 (11th Cir. 2012) (refusing to decide whether “under the current state 2 of Supreme Court precedent, cumulative error claims reviewed through the lens of AEDPA 3 can ever succeed in showing that the state court’s decision on the merits was contrary to or 4 an unreasonable application of clearly established law”). 5 The Ninth Circuit has held that in some cases, although no single trial error is 6 sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may 7 nonetheless prejudice a defendant to such a degree that his conviction must be overturned. 8 See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002), overruled on other grounds 9 by Slack v. McDaniel, 529 U.S. 473 (2000). Here, however, the Court has not identified 10 any constitutional errors arising during Speer’s trial. Therefore, “[b]ecause there is no 11 single constitutional error in this case, there is nothing to accumulate to [the] level of a 12 constitutional violation.” Id.; see Boyde v. Brown, 404 F.3d 1159, 1176 (9th Cir. 2005); 13 Morris, 677 F.3d at 1132 & n.3. “If there are no errors, there is no need to consider their 14 cumulative effect.” McGill, 16 F.4th at 685. 15 Because Supreme Court precedent does not recognize the doctrine of cumulative 16 error, and because this Court has determined that no prejudice resulted from the errors 17 alleged by Speer, the claim of cumulative prejudice is meritless. 18 J. 19 Claim 29: 20 Speer raises a series of “systemic claims” consisting primarily of challenges to 21 capital punishment in general and Arizona’s death penalty statute in particular. The claims 22 are meritless or non-cognizable.32 23 A. Systemic Challenges Speer alleges that Arizona’s capital-sentencing scheme violates the Eighth 24 and Fourteenth Amendments because it does not sufficiently channel the sentencer’s 25 discretion. (Doc. 13 at 262.) The Arizona Supreme Court’s denial of this claim, Speer, 221 26 Ariz. at 466, 212 P.3d at 804, was neither contrary to nor an unreasonable application of 27 28 32 Speer lists the individual claims encompassed by Claim 29 as (A) through (O). The Court follows that format in addressing the claims. - 140 - 1 clearly-established federal law. 2 Arizona’s death penalty scheme allows only certain, statutorily defined aggravating 3 factors to be considered in determining eligibility for the death penalty. “The presence of 4 aggravating circumstances serves the purpose of limiting the class of death-eligible 5 defendants, and the Eighth Amendment does not require that these aggravating 6 circumstances be further refined or weighed by [the sentencer].” Blystone v. Pennsylvania, 7 494 U.S. 299, 306–07 (1990). The Ninth Circuit and the United States Supreme Court have 8 upheld Arizona’s death penalty statute against allegations that particular aggravating 9 factors do not adequately narrow the sentencer’s discretion. See Jeffers, 497 U.S. 764, 774– 10 77 (1990); Walton, 497 U.S. at 639, 649–56; Woratzeck, 97 F.3d at 335. Claim 29(A) is 11 denied. 12 B. Speer alleges that the death penalty is irrationally and arbitrarily imposed and 13 serves no purpose that is not adequately addressed by life in prison. (Doc. 13 at 265.) The 14 Arizona Supreme Court’s denial of this claim, Speer, 221 Ariz. at 466, 212 P.3d at 804, 15 was neither contrary to nor an unreasonable application of clearly-established federal law. 16 See Walton, 497 U.S. at 655–56; Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998); see 17 also Andriano v. Shinn, No. CV-16-01159-PHX-SRB, 2021 WL 184546, at *81 (D. Ariz. 18 Jan. 19, 2021); Roseberry v. Ryan, No. 15-CV-1507-PHX-NVW, 2019 WL 3556932 at 19 *37 (D. Ariz. August 5, 2019). Speer “simply fails to provide any clearly established 20 authority in support of his contention.” Roybal v. Davis, 148 F.Supp.3d 958, 1111 (S.D. 21 Cal. 2015). Claim 29(B) is denied. 22 C. Speer alleges that Arizona’s capital-sentencing scheme unconstitutionally 23 limits full consideration of mitigation by requiring the defendant to prove mitigating 24 circumstances by a preponderance of the evidence. (Doc. 13 at 266.) The Arizona Supreme 25 Court’s denial of this claim, Speer, 221 Ariz. at 466, 212 P.3d at 804, was neither contrary 26 to nor an unreasonable application of clearly-established federal law. The Supreme Court 27 has specifically rejected the argument that the Arizona statute is unconstitutional because 28 it imposes on defendants the burden of establishing, by a preponderance of the evidence, - 141 - 1 the existence of mitigating circumstances sufficiently substantial to call for leniency. 2 Walton, 497 U.S. at 649–51. The Court has subsequently reaffirmed that the reasoning in 3 Walton still controls regarding burdens of persuasion. See Marsh, 548 U.S. at 173 (holding 4 that “a state death penalty statute may place the burden on the defendant to prove that 5 mitigating circumstances outweigh aggravating circumstances”). Once the government has 6 properly carried its burden of establishing death eligibility, “it [does] not offend the 7 Constitution to put the burden on [defendant] to prove any mitigating factor by a 8 preponderance of the evidence.” United States v. Mitchell, 502 F.3d 931, 993 (9th Cir. 9 2007) (citations omitted). Claim 29(C) is denied. 10 D. Speer alleges that the (F)(6) “especially heinous, cruel or depraved” 11 aggravating factor is unconstitutionally vague and overbroad. (Doc. 13 at 267.) The 12 Arizona Supreme Court’s denial of this claim, Speer, 221 Ariz. at 466, 212 P.3d at 804, 13 was neither contrary to nor an unreasonable application of clearly-established federal law. 14 The United States Supreme Court and the Ninth Circuit have upheld Arizona’s death 15 penalty statute against allegations that particular aggravating factors, including the (F)(6) 16 factor, do not adequately narrow the sentencer’s discretion. See Jeffers, 497 U.S. at 774– 17 77; Walton, 497 U.S. at 652–56. In Walton the Supreme Court held that the “especially 18 heinous, cruel or depraved” aggravating circumstance was facially vague but the vagueness 19 was remedied by the Arizona Supreme Court’s clarification of the factor’s meaning. 497 20 U.S. at 654; see also Smith v. Ryan, 823 F.3d 1270, 1294–95 (9th Cir. 2016). Speer argues 21 that Walton no longer controls after Arizona switched to jury sentencing in capital cases. 22 (Doc. 13 at 270.) This is unpersuasive. “There is no clearly established federal law holding 23 that jury instructions based on the Arizona Supreme Court’s narrowing construction are 24 inadequate.” Dixon v. Ryan, No. CV-14-258-PHX-DJH, 2016 WL 1045355, at *45 (D. 25 Ariz. Mar. 16, 2016), aff’d, 932 F.3d 789 (9th Cir. 2019). Claim 29(D) is denied. 26 E. Speer alleges that the trial court’s jury instructions improperly limited the 27 mitigation evidence the jury could consider. (Doc. 13 at 271.) The court instructed the jury 28 that “Evidence is irrelevant and should not be considered by you individually if it is mere - 142 - 1 sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling.” 2 (EIR 752 at 9.) The Arizona Supreme Court’s denial of this claim, Speer, 221 Ariz. at 466, 3 212 P.3d at 804, was a reasonable application of clearly-established federal law. “[F]ederal 4 courts have consistently held that jury instructions admonishing the jury to base its penalty 5 determination on mitigating or aggravating evidence, not on sympathy for the defendant, 6 pass constitutional muster.” Mayfield v. Woodford, 270 F.3d 915, 923 (9th Cir. 2001) 7 (citing Victor v. Nebraska, 511 U.S. 1, 13 (1994); Johnson v. Texas, 509 U.S. 350, 371–72 8 (1993); California v. Brown, 479 U.S. 538, 542–43 (1987)). Claim 29(E) is denied. 9 F. Speer alleges that the death penalty is cruel and unusual punishment “under 10 any circumstances.” (Doc. 13 at 273.) He does not indicate how the Arizona Supreme 11 Court’s denial of this claim, Speer, 221 Ariz. at 466, 212 P.3d at 804, conflicts with or 12 unreasonably applies clearly-established federal law, which holds that the death penalty 13 does not constitute cruel and unusual punishment. See Gregg v. Georgia, 428 U.S. 153, 14 169 (1976); see also Glossip v. Gross, 576 U.S. 863, 881 (2015) (“[W]e have time and 15 again reaffirmed that capital punishment is not per se unconstitutional.”); Roper v. 16 Simmons, 543 U.S. 551, 568–69 (2005) (noting that the death penalty is constitutional when 17 applied to a narrow category of crimes and offenders). Claim 29(F) is denied. 18 G. Speer alleges that Arizona’s capital-sentencing scheme violates the Eighth 19 and Fourteenth Amendments because it affords the prosecutor unbridled discretion to seek 20 the death penalty. (Doc. 13 at 276.) The Arizona Supreme Court’s denial of this claim, 21 Speer, 221 Ariz. at 466, 212 P.3d at 804, was neither contrary to nor an unreasonable 22 application of clearly-established federal law. 23 The Supreme Court has held that prosecutors have wide discretion in making the 24 decision whether to seek the death penalty. See McCleskey, 481 U.S. at 296–97; Gregg, 25 428 U.S. at 199 (holding that pre-sentencing decisions by actors in the criminal justice 26 system that may remove an accused from consideration for the death penalty are not 27 unconstitutional). In Smith the Ninth Circuit rejected the argument that Arizona’s death 28 penalty statute is constitutionally infirm because “the prosecutor can decide whether to - 143 - 1 2 seek the death penalty.” 140 F.3d at 1272. Claim 29(G) is denied. H. Speer alleges that Arizona’s capital-sentencing scheme discriminates against 3 poor, young male defendants. (Doc. 13 at 276.) The Arizona Supreme Court reasonably 4 applied clearly-established federal law in denying this claim. Speer, 221 Ariz. at 466, 212 5 P.3d at 804. “[A] defendant who alleges an equal protection violation has the burden of 6 proving ‘the existence of purposeful discrimination’” and must demonstrate that such 7 discrimination had an effect on him. McCleskey, 481 U.S. at 292 (quoting Whitus v. 8 Georgia, 385 U.S. 545, 550 (1967)). Therefore, to prevail on this claim, Speer “must prove 9 that the decisionmakers in his case acted with discriminatory purpose.” Id. He does not 10 attempt to meet this burden, offering no evidence specific to his case that would support 11 an inference that sex, race, economic status, or the race of his victims played a part in his 12 sentence. See Richmond v. Lewis, 948 F.2d 1473, 1490–91 (1990) (holding that statistical 13 evidence that Arizona’s death penalty is discriminatorily imposed based on race, sex, and 14 socioeconomic background is insufficient to prove decisionmakers in petitioner’s case 15 acted with discriminatory purpose), vacated on other grounds, 986 F.2d 1583 (9th Cir. 16 1993). Claim 29(H) is denied. 17 I. Speer alleges that the absence of proportionality review of death sentences 18 by Arizona courts violates his constitutional rights. (Doc. 13 at 278.) The Arizona Supreme 19 Court’s denial of this claim, Speer, 221 Ariz. at 466, 212 P.3d at 804, was neither contrary 20 to nor an unreasonable application of clearly-established federal law. As noted above, there 21 is no federal constitutional right to proportionality review of a death sentence. McCleskey, 22 481 U.S. at 306 (citing Pulley, 465 U.S. at 43); see Allen, 395 F.3d at 1018–19. The Ninth 23 Circuit has explained that the “substantive right to be free from a disproportionate 24 sentence” is protected by the application of “adequately narrowed aggravating 25 circumstance[s].” Ceja v. Stewart, 97 F.3d 1246, 1252 (9th Cir. 1996). Claim 29(I) is 26 denied. 27 28 J. Speer alleges that Arizona’s death penalty scheme is unconstitutional because it does not require the State to prove beyond a reasonable doubt that death is the - 144 - 1 appropriate sentence. (Doc. 13 at 279.) The Arizona Supreme Court’s denial of this claim, 2 Speer, 221 Ariz. at 24, 212 P.3d at 805, was neither contrary to nor an unreasonable 3 application of clearly-established federal law. 4 The Constitution does not require a death penalty statute to set forth specific 5 standards for a capital sentencer to follow in its consideration of aggravating and mitigating 6 circumstances. See Zant, 462 U.S. at 875 n.13 (1983) (explaining that “specific standards 7 for balancing aggravating against mitigating circumstances are not constitutionally 8 required”); see also Tuilaepa, 512 U.S. at 979–80 (“A capital sentencer need not be 9 instructed how to weigh any particular fact in the capital sentencing decision.”). In Kansas 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. Marsh, the Supreme Court explained: In aggregate, our precedents confer upon defendants the right to present sentencers with information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate sentence. The thrust of our mitigation jurisprudence ends here. “[W]e have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.” 548 U.S. 163, 175 (2006) (quoting Franklin, 487 U.S. at 179). Thus the Constitution does not require the capital sentencer to find that the aggravating circumstances outweigh mitigation beyond a reasonable doubt. See Smith, 140 F.3d at 1272 (rejecting claim based on failure to apply beyond a reasonable doubt standard at sentencing); Williams v. Calderon, 52 F.3d 1465, 1485 (9th Cir. 1995) (“[T]he failure of the statute to require a specific finding that death is beyond a reasonable doubt the appropriate penalty does not render it unconstitutional.”); McGill, No. CV-12-01149-PHXJJT, 2019 WL 160732, at *28 (“There is no Supreme Court authority requiring a jury to be instructed on a burden of proof in the sentencing phase of a capital case.”). Claim 29(J) is denied. K. Speer alleges that Arizona’s capital sentencing scheme is unconstitutional because it requires a death sentence whenever one aggravating factor and no mitigating circumstances are found. (Doc. 13 at 281.) The Arizona Supreme Court’s denial of this claim, Speer, 221 Ariz. at 466, 212 P.3d at 804, was a reasonable application of clearly- 145 - 1 established federal law. The Supreme Court has rejected the contention that Arizona’s 2 death penalty statute is impermissibly mandatory. See Walton, 497 U.S. at 651–52; Marsh, 3 548 U.S. at 173–74. Claim 29(K) is denied. 4 L. Speer alleges that Arizona’s capital sentencing scheme violates the Eighth 5 and Fourteenth Amendments because it does not provide objective standards to guide the 6 sentencer in weighing aggravating factors against mitigating circumstances. (Doc. 13 at 7 283.) The Arizona Supreme Court’s denial of this claim, Speer, 221 Ariz. at 466, 212 P.3d 8 at 804, was neither contrary to nor an unreasonable application of clearly-established 9 federal law. 10 The United States Supreme Court has held that in a capital case “the sentencer may 11 be given ‘unbridled discretion in determining whether the death penalty should be imposed 12 after it has found that the defendant is a member of the class made eligible for that 13 penalty.’” Tuilaepa, 512 U.S. at 979–80 (quoting Zant, 462 U.S. at 875); see Franklin, 487 14 U.S. at 179 (noting that the Court has never held that a specific method for balancing 15 mitigating and aggravating factors is constitutionally required). Accordingly, a capital 16 sentencer “need not be instructed how to weigh any particular fact in the capital sentencing 17 decision.” Id. at 979. Claim 29(L) is denied. 18 M. Speer alleges that he will be denied a fair clemency process in violation of 19 the Eighth and Fourteenth Amendments. (Doc. 13 at 283.) This claim is not cognizable on 20 federal habeas review. Habeas relief may only be granted on claims that a prisoner “is in 21 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 22 § 2254(a). Speer’s challenge to state clemency procedures and proceedings does not 23 represent an attack on his detention and thus does not constitute a proper ground for relief. 24 See Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam); see also Woratzeck 25 v. Stewart, 118 F.3d 648, 653 (9th Cir. 1997). Claim 29(M) is denied. 26 N. Speer alleges that his right to be free from cruel and unusual punishment 27 would be violated if the State executed him after he has spent 15 years in jail and on death 28 row. (Doc. 13 at 284.) This claim is meritless. - 146 - 1 “The Supreme Court has never held that execution after a long tenure on death row 2 is cruel and unusual punishment.” Allen v. Ornoski, 435 F.3d 946, 958 (9th Cir. 2006); see 3 Lackey v. Texas, 514 U.S. 1045 (1995) (mem.) (Stevens, J. & Breyer, J., discussing denial 4 of certiorari and noting the claim has not been addressed); Thompson v. McNeil, 556 U.S. 5 1114 (2009) (mem.) (Stevens, J. & Breyer, J., dissenting from denial of certiorari; Thomas, 6 J., concurring, discussing Lackey issue); see also Knight v. Florida, 528 U.S. 990 (1999) 7 (Thomas, J., concurring in denial of certiorari) (“I am unaware of any support in the 8 American constitutional tradition or in this Court’s precedent for the proposition that a 9 defendant can avail himself of the panoply of appellate and collateral procedures and then 10 complain when his execution is delayed.”). 11 Circuit courts have consistently held that prolonged incarceration under a sentence 12 of death does not violate the Eighth Amendment. See McKenzie v. Day, 57 F.3d 1493, 13 1493–94 (9th Cir. 1995) (en banc); White v. Johnson, 79 F.3d 432, 438 (5th Cir. 1996); 14 Stafford v. Ward, 59 F.3d 1025, 1028 (10th Cir. 1995). Claim 29(N) is denied. 15 O. Speer alleges that execution by lethal injection is cruel and unusual 16 punishment. (Doc. 13 at 287.) The Arizona Supreme Court denied the claim on direct 17 appeal, Speer, 221 Ariz. at 466, 212 P.3d at 804, and the state court denied it during the 18 PCR proceedings. These rulings were not contrary to or unreasonable applications of 19 clearly-established federal law. See, e.g., Baze v. Rees, 553 U.S. 35 (2008). The Ninth 20 Circuit has concluded that Arizona’s lethal injection protocol does not violate the Eighth 21 Amendment. Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). 22 In addition, prior to execution, Speer may present this claim in a separate civil rights 23 action under 42 U.S.C. § 1983. See Hill v. McDonough, 547 U.S. 573, 579–80, (2006) 24 (recognizing that a challenge to the State’s execution method may be brought in a § 1983 25 action); Nance v. Ward, 142 S. Ct. 2214, 2223 (2022). Claim 29(O) is denied. 26 IV. EVIDENTIARY DEVELOPMENT 27 Speer requests evidentiary development with respect to his claims of ineffective 28 assistance of trial counsel (Claims 1–7, 14–19), appellate counsel (Claim 26), and PCR - 147 - 1 counsel (Claim 27); prosecutorial misconduct (Claim 13); juror misconduct (Claim 25); 2 and cumulative prejudice (Claim 28). (Doc. 23.) He seeks discovery, an evidentiary 3 hearing, and expansion of the record under Rules 6, 7, and 8 of the Rules Governing § 2254 4 Cases, 28 U.S.C. foll. § 2254. (Id.) 5 A. Exhausted Claims 6 Claim 7 and portions of Claim 14, alleging ineffective assistance of trial counsel, 7 were raised and denied on the merits in state court. As set forth above, this Court found 8 that the PCR court’s denial of the claims was not unreasonable under 28 U.S.C. § 2254(d). 9 Because they did not satisfy § 2254(d)(1) or (2) based on the state court record, the Court 10 is precluded from considering new evidence in support of the claims. Pinholster, 563 U.S. 11 at 181; Gulbrandson, 738 F.3d at 993–94 & n.6. 12 B. 13 The remaining claims for which Speer seeks evidentiary development were not 14 presented in state court. Therefore, the Court’s “‘discretion . . . to consider new evidence’ 15 . . . is instead cabined by the requirement in § 2254(e)(2) that the petitioner must have 16 attempted ‘to develop the factual basis of [the] claim in State court.’” Stokley v. Ryan, 659 17 F.3d 802, 808 (9th Cir. 2011) (quoting Pinholster, 563 U.S. at 186). Unexhausted Claims 18 Under § 2254(e)(2), a federal court may not hold an evidentiary hearing unless it 19 first determines that the petitioner exercised diligence in trying to develop the factual basis 20 of the claim in state court. See Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000). If 21 the failure to develop a claim’s factual basis is attributable to the petitioner, the court may 22 hold a hearing only if the claim relies on (1) “a new rule of constitutional law, made 23 retroactive to cases on collateral review by the Supreme Court, that was previously 24 unavailable” or (2) “a factual predicate that could not have been previously discovered 25 through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2). In addition, “the facts 26 underlying the claim [must] be sufficient to establish by clear and convincing evidence that 27 but for constitutional error, no reasonable fact finder would have found the [petitioner] 28 guilty of the underlying offense.” Id. - 148 - 1 Section 2254(e)(2) limits a petitioner’s ability to present new evidence through a 2 Rule 7 motion to the same extent that it limits the availability of an evidentiary hearing. 3 See Cooper–Smith, 397 F.3d 1236, 1241 (9th Cir. 2005), overruled on other grounds by 4 Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016); Holland v. Jackson, 542 U.S. 649, 652– 5 53 (2004) (per curiam). Accordingly, a petitioner who seeks to introduce new affidavits 6 and other documents never presented in state court must demonstrate diligence in 7 developing the factual basis in state court or satisfy the requirements of § 2254(e)(2). 8 Speer contends that the failure to develop the factual basis of these claims resulted 9 from the ineffective assistance of PCR counsel. (See, e.g., Doc. 23 at 22.) This argument 10 is foreclosed by the Supreme Court’s recent decision in Ramirez, which held that “under § 11 2254(e)(2), a federal habeas court may not conduct an evidentiary hearing or otherwise 12 consider evidence beyond the state-court record based on ineffective assistance of state 13 postconviction counsel.” Ramirez, 142 S. Ct. at 1734. According to Ramirez, a petitioner 14 is at fault when PCR counsel is negligent in developing the record, and therefore “a federal 15 court may order an evidentiary or otherwise expand the state-court record only if the 16 prisoner can satisfy § 2254(e)(2)’s stringent requirements.” Id. at 1735. 17 Speer does not attempt to meet those standards. The claims for which he seeks 18 evidentiary development do not rely on a new, retroactive rule of constitutional law. Nor 19 do they rely on a factual predicate that could not have been discovered previously through 20 due diligence. The evidence Speer seeks to develop, consisting largely of additional 21 information from his defense team and from family members, existed at the time of the 22 state court proceedings, so there is no new factual predicate under § 2254(e)(2). 23 24 Speer is not entitled to evidentiary development. V. CERTIFICATE OF APPEALABILITY 25 Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, a petitioner 26 cannot take an appeal unless a certificate of appealability (“COA”) has been issued by an 27 appropriate judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases 28 provides that the district judge must either issue or deny a certificate of appealability when - 149 - 1 it enters a final order adverse to the applicant. If a certificate is issued, the court must state 2 the specific issue or issues that satisfy 28 U.S.C. § 2253(c)(2). 3 Under § 2253(c)(2), a certificate of appealability may issue only when the petitioner 4 “has made a substantial showing of the denial of a constitutional right.” This showing can 5 be established by demonstrating that “reasonable jurists could debate whether (or, for that 6 matter, agree that) the petition should have been resolved in a different manner” or that the 7 issues were “adequate to deserve encouragement to proceed further.” Slack, 529 U.S. at 8 484 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, 9 a certificate of appealability will issue only if reasonable jurists could debate whether the 10 petition states a valid claim of the denial of a constitutional right and whether the court’s 11 procedural ruling was correct. Id. 12 The Court finds that reasonable jurists could debate its resolution of Claim 7, 13 alleging that trial counsel performed ineffectively by failing to move to vacate his 14 conviction and sentence after the same prosecutor presented a conflicting theory of the 15 crime at Womble’s trial, and Claim 8, alleging that Speer’s due process rights were violated 16 when the trial court failed to suppress the jail recordings. The Court also finds that 17 reasonable jurists could debate its resolution of Claim 14, alleging ineffective assistance of 18 counsel at sentencing. See Browning v. Baker, 875 F.3d 444, 471 (finding district court errs 19 by separating a petitioner’s arguments into particular instances of counsel’s conduct for 20 purposes of issuing a COA); see also Montiel v. Chappell, NO. 15-99000, 2022 WL 21 3132416, *1 (9th Cir. August 5, 2022) (same). 22 VI. 23 24 CONCLUSION The Court has considered Speer’s claims and determined that none establish that he is entitled to habeas relief. 25 Based on the foregoing, 26 IT IS HEREBY ORDERED denying Speer’s Petition for Writ of Habeas Corpus 27 (Doc. 13). The Clerk of Court shall enter judgment accordingly. 28 - 150 - 1 2 3 4 5 6 7 8 IT IS FURTHER ORDERED denying Speer’s request for evidentiary development. (Doc. 23.) IT IS FURTHER ORDERED granting a certificate of appealability with respect to Claims 7, 8, and 14. IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329. Dated this 14th day of March, 2023. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 151 -

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