Opinion
No. CV 03-775-PHX-DGC.
September 29, 2005
DEATH PENALTY CASE ORDER
Petitioner Roger Wayne Murray ("Petitioner") is a state prisoner sentenced to death. Before the Court are Petitioner's Motion for Discovery and Evidentiary Hearing and Motion to Expand the Record Under Rule 7 of the Rules Governing Section 2254 Cases. (Dkts. 72, 73.) Petitioner requests expansion of the record, discovery and/or an evident iary hearing in support of Claims 1, 2, 4-7, 23, 29, 34-37, 40/41, 42, 44, 45 and 48. Respondents filed responses, and Petitioner filed replies. (Dkts. 81, 82, 84, 86.)
"Dkt." refers to the documents in this Court's case file.
In his Traverse, Petitioner joined Claims 40 and 41, which present the same issue. (Dkt. 56 at 41.)
Pursuant to the Court's general procedures governing resolution of capital habeas proceedings, the parties have completed briefing of both the procedural status and the merits of Petitioner's habeas claims. The Court will address whether the claims for which Petitioner seeks evidentiary development are appropriate for review on the merits by a federal habeas court. The Court will also address the procedural status of Claims 30-33, which Petitioner purports to withdraw or dismiss without prejudice. (Dkt. 56 at 34.) In his Traverse, Petitioner voluntarily withdrew Claims 43, 47, 49-52 and 54-56 as duplicat ive of other claims in the Amended Petition. (Dkt. 56 at 41, 50, 56, 57-58.) Accordingly, these claims are no longer before the Court and will be dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 1992, Petitioner and his older brother, Robert, were jointly tried and convicted by a jury of one count of armed robbery and two counts of first degree murder in the deaths of Dean Morrison and Jacqueline Appelhans. The murders occurred in the course of an armed robbery of a store and restaurant run by Morrison and Appelhans, and of their adjacent home, located in Grasshopper Junction, a rural area outside Kingman, Arizona. Mohave County Superior Court Judge James E. Chavez sentenced Petitioner and his brother to death on each murder count and to a term of imprisonment for the armed robbery. The Arizona Supreme Court affirmed the convictions and sentences of each brother in a joint opinion. State v. Murray, 184 Ariz. 9, 906 P.2d 542 (1995). On November 21, 1995, Petit ioner filed a motion for reconsideration. (ROA 36.) That motion was denied. (ROA 37.) A petition for writ of certiorari was subsequently denied by the United States Supreme Court. Murray v. Arizona, 519 U.S. 874 (1996).
"ROA" refers to the one-volume record in Petitioner's direct appeal (Case No. CR9-2-0441-AP). "CROA" refers to the four-volume record, and one sealed envelope, in Robert Murray's companion direct appeal (Case No. CR-92-0440-AP). "PCR" refers to documents contained in the three-volume record from Petitioner's post-conviction proceedings (Case No. Mohave CR-13057). "PR doc." refers to enumerated documents contained in the three-volume record on appeal from Petitioner's post-conviction proceedings (Case No. CR 01-0146-PC). "RT" refers to the reporter's transcripts. The original reporter's transcripts and certified copies of trial and post-conviction records were provided to this Court by the Ariz ona Supreme Court on September 23, 2004 in this case (dkt. 59), and on November 13, 2001 in Robert Murray's habeas action, CV 99-1812-PHX-DGC, which is also before this Court.
On March 9, 1999, Pet it ioner filed a petition for postconviction relief ("PCR") in the trial court ("PCR court"). The PCR court summarily rejected or found precluded most of Petitioner's claims, but it appointed a psychologist and neuropsy chologist to evaluate Petitioner preparatory to an evidentiary hearing to be held on two ineffective assistance of counsel ("IAC") claims alleging that trial counsel: (1) slept during portions of the trial, and (2) failed to obtain neurological or neuropsychological testing for purposes of mit igat ion at sentencing. (PCR Order filed 1/10/00.) Following examination by the appointed experts, Petitioner notified the PCR court that he did not intend to rely on those experts. (PCR Notice filed 12/18/00.) The PCR court granted the Respondents' motion to dismiss the second IAC claim and held an evidentiary hearing on the first. (PCR Order filed 4/16/01.) Following the evidentiary hearing, the PCR court denied relief on that claim and dismissed the petition. (PCR Order filed 3/21/02.)
The Arizona Sup reme Court summarily denied a Petition for Review except as to Petitioner's claim that he was entitled to a jury determination of aggravating factors. (PR docs. 29, 30.) With respect to that claim, the Arizona Supreme Court consolidat ed review with claims of other similarly-situated inmates and subsequently denied relief, see State v. Towery, 204 Ariz. 386, 64 P.3d 828 (Ariz. 2003). (PR doc. 37.) The court thereafter denied Petitioner's motion for reconsideration. (PR doc. 40.) Petitioner filed a petition for writ of certiorari, which he later withdrew. (PR docs. 42, 43.) Petitioner then initiated the instant habeas proceedings. (Dkt. 1.)
PRINCIPLES OF EXHAUSTION AND PROCEDURAL DEFAULT
Because this case was filed after April 24, 1996, it is governed by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 336 (1997); Woodford v. Garceau, 538 U.S. 202, 210 (2003). The AEDPA requires that a writ of habeas corpus not be granted unless it appears that the petitioner has properly exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). To properly exhaust state remedies, the petitioner must "fairly present" his claims to the state's highest court in a procedurally appropriate manner.O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).
A claim is "fairly presented" if the petitioner has described the op erat ive facts and the federal legal theory on which his claim is based so that the state courts have a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971). If a petitioner's habeas claim includes new factual allegations not presented to the state court, the claim may be considered unexhausted if the new facts "fundamentally alter" the legal claim presented and considered in state court. Vasquez v. Hillery, 474 U.S. 254, 260 (1986).
Resolving whether a petitioner has fairly presented his claim to the state court, thus permitting federal review, is an intrinsically federal issue which must be determined by the federal court. Wyldes v. Hundley, 69 F.3d 247, 251 (8th Cir. 1995); Harris v. Champion, 15 F.3d 1538, 1556 (10th Cir. 1994).
A habeas petitioner's claims may be precluded from federal review in either of two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, a claim may be procedurally defaulted in federal court if the petitioner failed to present the claim in any forum and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Id. at 735 n. 1. This is often referred to as "technical" exhaustion — although the claim was not actually exhausted in state court, the petitioner no longer has an available state remedy. See Gray v. Netherland, 518 U.S. 152, 161-62 (1996) ("A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer `available' to him.").
Rule 32 of the Arizona Rules of Criminal Procedure governs when petitioners may seek relief in post-conviction proceedings and raise federal constitutional challenges to their convictions or sentences in state court. Rule 32.2 provides, in part:
a. Preclusion. A defendant shall be precluded from relief under this rule based upon any ground:
. . . .
(2) Finally adjudicated on the merits on appeal or in any previous collateral proceeding;
(3) That has been waived at trial, on appeal, or in any previous collateral proceeding.
b. Exceptions. Rule 32.2(a) shall not apply to claims for relief based on Rules 32.1(d), (e), (f), (g) and (h). When a claim under [these sub-sections] is raised in a successive or untimely petition, the petition must set forth the reasons for not raising the claim in the previous petition or in a timely manner. If meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner, the petition shall be summarily dismissed.
Ariz. R. Crim. P. 32.2 (2002) (emphasis added). Thus, pursuant to Rule 32.2, petitioners may not be granted relief on any claim which could have been raised in a prior Rule 32 petit ion for post-convict ion relief. Similarly, pursuant to Rule 32.4, petitioners must seek relief in a timely manner. Only if a claim falls within certain exceptions (subsections (d) through (h) of Rule 32.1) and the petitioner can justify why the claim was omitted from a prior petition or was not presented in a timely manner will the preclusive effect of Rule 32.2 be avoided. Ariz. R. Crim. P. 32.2(a) (3), 32.4(a).
In the present case, if there are claims which have not been raised previously in state court, the Court must determine whether Petitioner has state remedies currently available to him pursuant to Rule 32. If no remedies are currently available, petitioner's claims are "technically" exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n. 1. In addition, if there are claims that were fairly presented in state court but found defaulted on state procedural grounds, such claims also will be found procedurally defaulted in federal court so long as the state procedural bar was independent of federal law and adequate to warrant preclusion of federal review. Harris, 489 U.S. at 262. A state procedural default is not indep endent if, for example, it depends upon an antecedent federal constitutional ruling. See Stewart v. Smith, 536 U.S. 856 (2002) (per curiam). A state bar is not adequate unless it was firmly established and regularly applied at the time of application by the state court. Ford v. Georgia, 498 U.S. 411, 424 (1991).
Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9 (1984). As a general matter, the Court will not review the merits of procedurally default ed claims unless a petitioner demonstrates legitimate cause for the failure to properly exhaust in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 735 n. 1. Because Petitioner does not assert that either cause and prejudice or a fundamental miscarriage of justice excuses the procedural default of any claim at issue in this Order, the Court does not further address those issues.
PROCEDURAL STATUS OF CLAIMS
The Court reviews the procedural status of the claims for which evidentiary development is sought and/or those that Petitioner seeks to dismiss wit hout prejudice: Claims 1, 2, 4-7, 23, 29-37, 40/41, 42, 44, 45 and 48. Respondents concede that Claims 1 (in part), 2, 4 (in part), 5 (in part), 6 (in part), 7 (in part), 40/41 (in part), 42, 45 and 48 are properly exhausted. (Dkt. 46.) Respondents contest ripeness of one claim and exhaustion of the remaining claims.
Respondents misidentified Claims 42, 44, and 48 in their Answer, which were mislabeled as Claims 41, 43, and 47, respectively. (Dkt. 46 at 73, 74, 82.)
Claim 1 (in part)
Claim 1 alleges that Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated by the trial court's denial of his motion to change venue based on pretrial publicity. (Dkt. 40 at 49.) Respondents contend this claim is only exhausted to the extent that it alleges a violation of due process. (Dkt. 46 at 13.) Petitioner replies that he presented this claim as a violation of his Sixth and Fourteenth Amendment rights on direct appeal. (Dkt. 56 at 7.)
Petitioner presented the Sixth and Fourteenth Amendment aspects of this claim on direct appeal. (ROA 15 at 14, 16.) Therefore, these portions of this claim are exhausted. However, Petitioner did not present the Fifth and Eighth Amendment aspects of this claim in state court . Petitioner is now precluded by Arizona Rules of Criminal Procedure 32.2(a)(3) and 32.4 from obtaining relief in state court on these aspects absent an applicable exception, which he does not assert. The Court finds the Fifth and Eighth Amendment aspects of Claim 1 technically exhausted but procedurally defaulted. Because Petitioner does not attempt to show cause and prejudice or a fundamental miscarriage of justice to excuse the default, the Court will dismiss these aspects of Claim 1.
Petitioner does not assert that any exception to preclusion applies to any claim at issue herein. See Beaty v. Stewart, 303 F.3d 975, 987 n. 5 (9th Cir. 2002) (finding no state court remedies and noting that petitioner did not raise any exceptions to Rule 32.2(a)). First, Pet itioner does not assert that any of the preclusion exceptions enumerated in Rule 32.2(b)(2) — expired sentence, newly discovered material facts, no fault untimely appeal or PCR proceeding, significant change in the law, or actual innocence of crime or death sentence — apply and the Court finds none of them applicable. See Ariz. R. Crim. P. 32.2(b)(2); 32.1(d) — (h). Second, Petitioner does not argue that any of the claims are of the type that cannot be waived absent a personal knowing, voluntary and intelligent waiver. Cf. Cassett v. Stewart, 406 F.3d 614, 622-23 (9th Cir. 2005) (addressing waiver because raised by petitioner).
The Court finds, as to all of the claims in this Order for which the Court determines there is no available remedy in state court pursuant to Rule 32.2(a)(3), that none of those claims fall within the limited framework of claims requiring a knowing, voluntary and intelligent waiver. See Ariz. R. Crim. P. 32.2(a)(3) cmt. (West 2004) (noting that most claims of trial error do not require a personal waiver); Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) (ident ifying the right to counsel, right to a jury trial and right to a 12-person jury under the Arizona Constitution as the type of claims that require personal waiver); see also State v. Espinosa, 200 Ariz. 503, 505, 29 P.3d 278, 280 (Ct.App. 2001) (withdrawal of plea offer in violation of due process not a claim requiring personal waiver); but cf. Cassett, 406 F.3d at 622-23 (finding claim not defaulted because unclear whether personal waiver would be required under state law).
Claim 4 (in part)
Claim 4 alleges that Mohave County's selection of prosp ect ive jurors from a deficient master list violated Petitioner's Sixth and Fourteenth Amendment rights to an impartial jury drawn from a fair cross-section of the community and to equal protection. (Dkt. 40 at 57.) Respondents contend that Petitioner failed to exhaust the Fourteenth Amendment aspect of this claim. (Dkt. 46 at 19.) On direct appeal, Pet itioner alleged violations of both his Sixth Amendment fair cross-section rights and his Fourteenth Amendment equal protection rights. (ROA 15 at 4, 6.) The Court finds that Claim 4 is exhausted in its entirety.
Claims 5 (in part) and 6 (in part)
Claims 5 and 6 allege violations of the Fifth, Sixth, Eighth and Fourteenth Amendments based on the denial of Petitioner's rights to a master jury pool representing a fair cross-section of the community and equal protection (Claim 5) and the trial court's denial of his Batson challenges to prospective jurors Christina Pethers and David Alvarado (Claim 6). (Dkt. 40 at 57-65.) Respondents argue that only the Sixth Amendment aspect of these claims was exhausted in state court. (Dkt. 46 at 19, 22, 23.)
Petitioner presented the Sixth and Fourteenth Amendment aspects of these claims to the state court on direct appeal; therefore, these aspects of Claims 5 and 6 are properly exhausted and appropriate for review in this Court. (ROA 15 at 4, 6, 17-18.) However, Pet it ioner did not present the Fifth and Eighth Amendment aspects of these claims. Petitioner is now precluded by Rules 32.2(a)(3) and 32.4 from obtaining relief in state court absent an ap plicable exception, which he does not assert. See supra note 6. The Court finds the Fifth and Eighth Amendment aspects of Claims 5 and 6 technically exhausted but procedurally defaulted. Because Petitioner does not attempt to show cause and prejudice or a fundamental miscarriage of justice to excuse the defaults, the Court will dismiss these aspects of Claims 5 and 6 as procedurally barred.
Claim 7 (in part)
Claim 7 alleges violations of the Fifth, Sixth, Eighth and Fourteenth Amendments based on the denial of access to the crime scene. (Dkt. 40 at 65.) Respondents concede this claim is exhausted to the extent Petitioner alleges a due process violation under the Fourteenth Amendment. (Dkt. 46 at 25.) Petitioner does not dispute that the Fifth, Sixth and Eighth Amendment aspects of this claim were not fairly presented to the Arizona Supreme Court. Petitioner is precluded by Rules 32.2(a)(3) and 32.4 from now obtaining relief in state court; therefore, these aspects are technically exhausted but procedurally defaulted. Pet it ioner does not attempt to show cause and prejudice or a fundamental miscarriage of justice to excuse the default. Accordingly, the Court will dismiss the Fifth, Sixth and Eighth Amendment aspects of this claim as procedurally barred.
Claim 23
Claim 23 alleges that the trial court violated Petitioner's Fifth and Fourteenth Amendment rights by: (a) granting him insufficient funds for experts, and (b) denying his request to appoint experienced capital co-counsel. (Dkt. 40 at 93-95.) Respondents argue that Petitioner failed to present either portion of this claim to the state court and is now precluded from doing so. (Dkt. 46 at 51.) In the Traverse, Petitioner proposes to dismiss the claim without prejudice and asks the Court to stay the remaining claims pending exhaustion of this, and any other, unexhausted claim so dismissed. (Dkt. 56 at 29.) However, in his motion for discovery and evidentiary hearing, Petitioner argues that he presented this claim on direct appeal and that the Arizona Sup reme Court actually addressed the claim. (Dkt. 72 at 25.)
Following the filing of the Traverse but before the instant motions for evidentiary development, Petitioner filed a "Notice of Dismissal of Certain Claims Without Prejudice and Motion to Stay Proceeding." (Dkt. 60.) The Court struck the notice, finding it was an improper attempt, under Fed.R.Civ.P. 41(a)(1), to unilaterally dismiss without prejudice individual claims from a multi-claim comp laint. (Dkt. 71 at 2.) The Court further concluded, as it does again herein, that Petitioner lacked an available remedy in state court to present his allegedly unexhausted claims and therefore denied the requested stay of proceedings. (Id. at 3-4.)
In his Opening Brief on direct appeal, the only reference to expert funding was the following statement in a footnote: "The court did allow $3,000 for expenses to be used as the Appellant wished; however, that amount was not enough to include the cost of a footprint experts [sic], as well as other costs that the office had to incur in this representation." (ROA 15 at 29, n. 2.) This statement was made in connection with Petitioner's claim that expert footprint evidence from Detective Lent was improperly admitted at trial because (a) Lent was improperly qualified as an expert, (b) procedures to obt ain the footprint evidence did not comply with Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and (c) the court improperly barred the defense from presenting evidence to impeach Lent. Petitioner argued in particular that Lent's test imony should have been excluded because Petitioner's request for a Washington, D.C. footprint expert had been denied. (Id. at 29.) Petitioner did not allege that his federal constitutional rights were violated by denial of funds to ret ain the out-of-state expert or by denial of experienced capital co-counsel. The Court finds that neither portion of Claim 23 was fairly presented to the Arizona Supreme Court. The Court further concludes that the state court did not otherwise address these claims.
In its opinion, the state sup reme court noted that Petitioner argued "that the trial court's denial of his request for expenses for an out-of-state expert on footprint identification was error." Murray, 184 Ariz. at 29, 906 P.2d at 562. Stating that the trial court had authorized $3,000 for experts, the supreme court found that, absent a showing of substantial prejudice to the defense, the trial court had not abused its discret ion in questioning the need to use an expert from Washington, D.C., when other experts were available in Arizona or neighboring states. Id. at 30, 906 P.2d at 563. No part of this analysis rested on federal constitutional legal principles.
Petitioner asks this Court to permit him to dismiss this claim "without prejudice" if the Court finds it unexhausted and to stay the action pending its exhaustion in state court. (Dkt. 56 at 29.) As set forth in the Court's order denying Petitioner's motion to stay proceeding, see supra note 7, Petitioner does not assert that any of the exceptions to Rules 32.2(a)(3) and 32.4 apply to this claim. These rules bar him from now obtaining relief on this claim in state court. This claim is technically exhausted but procedurally default ed. Pet itioner has not attempted to show cause and prejudice or a fundamental miscarriage of justice to excuse the default. Accordingly, Claim 23 will be dismissed as procedurally barred, and this action will not be stayed. Claim 29
Claim 29 alleges that the Arizona Supreme Court violated Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment rights under Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982), by improperly refusing to consider his dysfunctional childhood as mitigation during its independent sentencing review on direct appeal. (Dkt. 40 at 107-109.) Respondents contend that because the PCR court found this claim precluded by Petitioner's failure to present it in a motion for reconsideration on direct appeal, it is procedurally defaulted. (Dkt. 46 at 54; see PCR Order filed 1/10/00.) Petitioner argues that the Arizona Supreme Court had a fair opportunity to address this claim during its independent sentencing review on direct appeal. (Dkt. 56 at 33.)
This claim could not have been exhaust ed as part of Petitioner's direct appeal because it is during that appeal that the error is alleged to have occurred. To give the state's highest court the opportunity to rule on a claim of error arising during his direct appeal, the proper method was to file a motion for reconsideration with the Arizona Sup reme Court. See Ariz. R. Crim. P. 31.18(b) ("Any party desiring reconsideration of a decision of an appellate court may file a motion for reconsideration in the appellate court wit hin fifteen days after the filing of a decision by the appellate court."); Correll v. Stewart, 137 F.3d 1404, 1418 (9th Cir. 1998) (finding procedural default of claim based on error of the Arizona Supreme Court where petitioner failed to file motion for reconsideration, which is "an avenue of relief that the Arizona Rules of Criminal Procedure clearly outline."). Although Petitioner filed a motion to reconsider the decision on direct appeal, he did not raise any issue related to the Arizona Supreme Court's independent sentencing review. (ROA 36.) Rather, he waited to raise the issue in his PCR petition, and the PCR court found the claim to be precluded. Petitioner does not assert cause and prejudice or a fundamental miscarriage of justice to excuse the default. Accordingly, Claim 29 will be dismissed as procedurally barred.
Claim 30
Claim 30 alleges IAC in violation of Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment rights based on trial counsel's failure to: (a) file a pretrial motion to preclude expert tracking testimony from Detective Lent, and (b) present an expert witness to challenge Lent's qualifications as a footprint expert. (Dkt. 40 at 109-11.) Respondents contend Petitioner failed to present this claim to the Arizona Supreme Court in the Petition for Review. (Dkt. 46 at 55.) Petitioner does not dispute the contention, but purports to "withdraw this claim without prejudice" and requests a stay to exhaust the claim in state court. (Dkt. 56 at 34.)
The record reflects that Petitioner did not present this claim to the Arizona Supreme Court in his Pet it ion for Review. (PR doc. 7.) Petitioner does not assert that any of the exceptions to Rules 32.2(a)(3) and 32.4 apply to this claim, and these rules otherwise bar him from now obtaining relief on this claim in state court. See supra note 7. The claim is technically exhaust ed but procedurally defaulted. Petitioner has not attempted to show cause and prejudice or a fundamental miscarriage of justice to excuse the default. Accordingly, Claim 30 will be dismissed as procedurally barred, and this action will not be stayed.
Claims 31, 32 and 33
Claims 31-33 allege IAC in violat ion of Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment rights based on trial counsel's failure to: seek severance of trial based on antagonistic defenses (Claim 31); present expert testimony to rebut the State's exp erts (Claim 32); and properly prepare for the aggravation/mitigation hearing (Claim 33). (Dkt. 40 at 111-18.) Respondents contend these claims were either never presented in state court or were not presented to the Arizona Supreme Court in the Petition for Review. (Dkt. 46 at 58, 59-60.)
Petitioner did not present these claims to the Arizona Supreme Court in his Petition for Review. (PR doc. 7.) If unexhausted, Petitioner states he will dismiss these claims "without prejudice," and he asks the Court to stay this action pending their exhaustion in state court. (Dkt. 56 at 34-35.) Petitioner does not assert that any of the exceptions to Rules 32.2(a)(3) and 32.4 apply to these claims, and these rules otherwise bar him from now obtaining relief in state court. See supra note 7. These claims are technically exhausted but procedurally defaulted. Petitioner has not attempted to show cause and prejudice or a fundamental miscarriage of justice to excuse the defaults. Accordingly, these claims will be dismissed as procedurally barred, and this action will not be stayed.
Claim 34
Petitioner alleges that execution by the State after more than twelve years on death row fails to serve any legitimate penological purpose and violates his Eighth Amendment right to be free from cruel and unusual punishment. (Dkt. 40 at 118.) If unexhausted, Petitioner states he will dismiss this claim "without prejudice," and he asks the Court to stay this action pending its exhaustion in state court. (Dkt. 56 at 35.)
Regardless of whet her Petitioner properly exhausted this claim, the Court will deny it as meritless. See 28 U.S.C. § 2254(b)(2) (Supp. 2005) (district courts may deny habeas application on merits notwithstanding failure to exhaust). The Supreme Court has not decided whether lengthy incarceration prior to execution can constitute cruel and unusual punishment. See Lackey v. Texas, 514 U.S. 1045 (1995) (mem.) (Stevens, J. Breyer, J., discussing denial of certiorari and noting the claim has not been addressed). In contrast, circuit courts including the Ninth Circuit Court of Appeals hold prolonged incarceration under a sentence of death does not offend the Eighth Amendment.See McKenzie v. Day, 57 F.3d 1493, 1493-94 (9th Cir. 1995) (en banc); White v. Johnson, 79 F.3d 432, 438 (5th Cir. 1996) (delay of 17 years); Stafford v. Ward, 59 F.3d 1025, 1028 (10th Cir. 1995) (delay of 15 years). Because the Court finds this claim to be without merit as a matter of law, evident iary development is not warranted. The motions for development will be denied, and Claim 34 will be denied on the merits.
Claim 35
Claim 35 alleges violations of Petitioner's rights under the International Covenant on Civil and Political Rights ("ICCPR"), customary international law, and jus cogens. (Dkt. 40 at 126-28.) Respondents argue this claim is procedurally defaulted because it was not presented in state court and Petitioner is now barred from obtaining relief on this claim in state court. (Dkt. 46 at 63.) Petitioner did not present this claim on direct appeal or in his PCR proceedings. If found unexhausted, Petitioner states he will dismiss this claim "without prejudice," and he asks the Court to stay this action pending its exhaustion in state court. (Dkt. 56 at 35.) Petitioner does not assert that any of the exceptions to Rules 32.2(a)(3) and 32.4 apply to this claim, and these rules otherwise bar him from now obtaining relief in state court. See supra note 7. Thus, this claim is technically exhausted but procedurally defaulted. Petitioner has not attempted to show cause and prejudice or a fundamental miscarriage of justice to excuse the default. Accordingly, the claim will be dismissed as procedurally barred, and this action will not be stayed.
The United Nation's ICCPR was ratified by the United States in 1992 and prohibits cruel, inhumane, or degrading punishment, but does not require member countries to abolish the death penalty. See Jamison v. Collins, 100 F. Supp 2d. 647, 766 (S.D. Ohio 2000), aff'd as amended on denial of reh'g, 291 F.3d 380 (6th Cir. 2002).
"[A] jus cogens norm . . . `is a norm accepted and recognized by the international community of states as a whole . . . from which no derogation is permitted and which can be modified only by a subsequent norm of general int ernational law having the same character.'" Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) (quoting Vienna Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 332).
Claim 36
Claim 36 alleges that neither lethal gas, nor lethal injection, cause instant, painless death and either method will result in physical and psychological torture of Pet itioner at execution in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights. (Dkt. 40 at 128.) Respondents do not address the lethal gas argument but contend that Petitioner failed to present the lethal injection argument in his Petition for Review to the Arizona Supreme Court. (Dkt. 46 at 67.)
The Court has reviewed the record and finds that the lethal gas aspect of this claim was never presented in state court. Petitioner does not assert that any of the exceptions to Rules 32.2(a)(3) and 32.4 apply to this claim, and these rules otherwise bar him from now obtaining relief in state court. See supra note 6. Thus, the lethal gas aspect of Claim 36 is technically exhausted but procedurally defaulted. Petitioner does not assert cause and prejudice or a fundamental miscarriage of justice to excuse the default. Accordingly, this aspect of Claim 36 will be dismissed as procedurally barred.
In his PCR petition, Petitioner challenged lethal injection as a constitutional method of execution. (PCR pet. filed 3/5/99 at 30-33.) In his Petition for Review, Petitioner failed to explicitly present the lethal injection portion of this claim, but instead purported to present it as one of the challenges to Arizona's capital sentencing scheme. (PR doc. 7 at 32.) Assuming that was sufficient to fairly present that aspect of this claim to the Arizona Supreme Court, this Court "looks through" that court's summary denial of review to the PCR court's decision as the last reasoned state court ruling. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). The PCR court found post-conviction relief on the lethal injection aspect of this claim "precluded" under Rule 32.2(a)(3). (PCR order filed 1/10/00.) Petitioner does not assert cause and prejudice or a fundamental miscarriage of justice to excuse this default. Accordingly, the lethal injection aspect of Claim 36 will be dismissed as procedurally barred.
Claim 37
In Claim 37, Petitioner alleges that (a) he will not be competent to be executed, and (b) "[t]he trial court erred in rest ricting the Appellant's right to a lesser included offense instruction." (Dkts. 40 at 128-30; 52 at 8, n. 1.) Both Petitioner and Respondents acknowledge that (a) is not ripe and is premature for federal review. (Dkts. 40 at 129; 46 at 68.) Pursuant to Martinez-Villareal v. Stewart, 118 F.3d 628, 634 (9th Cir. 1997), aff'd, 523 U.S. 637 (1998), a claim of incompetency for execution "must be raised in a first habeas petition, whereupon it also must be dismissed as premature due to the automatic stay that issues when a first petition is filed." If again presented to the district court once the issue becomes ripe for review, Claim 37(a) shall not be treated as a second or successive petition. See id. at 643-44. Therefore, the Court will dismiss this claim without prejudice as premature.
With regard to Claim 37(b), Petitioner concedes that the United States Supreme Court has decided the issue adversely to him and states that he only raises the issue to preserve it. (See dkt. 40 at 130-32.) Because Petitioner acknowledges that success on the merits of allegation (b) is foreclosed by Schad v. Arizona, 501 U.S. 624 (1991), the Court will deny the motions for evidentiary development and dismiss Claim 37(b) on the merits.
Claim 40/41
Claim 40/41 alleges the trial court violated Petitioner's Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights by failing to find that mitigation substantially outweighed the aggravat ing circumstances. (Dkt. 40 at 136-46.) Respondents argue this claim is only exhausted to the extent that it alleges a violation of Petitioner's Eighth Amendment rights. (Dkt. 46 at 72.) In his Opening Brief on direct appeal, Petitioner alleged violations of his Eighth and Fourteenth Amendment rights, but did not allege violations of his Fifth, Sixth or Seventh Amendment rights. (ROA 15 at 54.) Petitioner does not assert that any of the exceptions to Rules 32.2(a)(3) and 32.4 apply to these aspects of this claim, and these rules otherwise bar him from now obtaining relief in state court. See supra note 6. Thus, these aspects are technically exhausted but procedurally defaulted. Petitioner has not attempted to show cause and prejudice or a fundament al miscarriage to excuse the default. Therefore, the Court will dismiss the Fifth, Sixth and Seventh Amendment aspects of Claim 40/41 as procedurally barred.
As to the balance of this claim, an assertion of error by a sentencer with respect to its weighing of aggravat ing and mitigating factors is at most an error of state law, which may not serve as a basis for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Eddings, 455 U.S. at 114-15; Ortiz v. Stewart, 149 F.3d 928, 943 (9th Cir. 1998) (finding no constitutional violation where sentencing court considered evidence but found it inadequate to just ify leniency; "a sentencer is free to assess how much weight to assign to such evidence"). Therefore, the remainder of Claim 40/41 is not cognizable as a matter of law. The motions for evidentiary development will be denied and this claim dismissed.
Claim 44
Claim 44 alleges the trial court violated Petitioner's Fifth, Sixth and Fourteenth Amendment rights by failing to replace counsel despite irreconcilable conflicts. (Dkt. 40 at 147-52.) Petitioner asserts that he fairly presented this claim in his PCR petition (dkt. 56 at 42), but Respondents contend that the PCR court's determination that the claim was precluded bars review in federal court (dkt. 46 at 74).
Petitioner fairly presented this claim in his PCR petition and petition for review. (PCR pet. filed 3/5/99 at 5-10; PR doc. 7 at 1, 16-20.) The PCR court found the claim precluded under Rule 32.2(a)(3) because it could have been raised on direct appeal. (PCR order filed 1/10/00.) Because the Ariz ona Supreme Court summarily denied review of this claim (PR doc. 30), this Court "looks through" that denial to the PCR court's decision as the last reasoned state court ruling. See Ylst, 501 U.S. at 803. Thus, the claim is procedurally defaulted. Petitioner has not attempted to show cause and prejudice or a fundamental miscarriage of justice to excuse the default of Claim 44. Accordingly, the Court will dismiss this claim as procedurally barred.
In his motion for an evidentiary hearing, Pet it ioner suggests for the first time that the PCR court's preclusion ruling as to this claim is not an indep endent and adequate bar to federal review. (Dkt. 72 at 27.) Because Petitioner did not include that argument in the Traverse, it is waived and will not be reviewed by the Court. For that reason, and because Petitioner does not seek to present any evidence relevant to the bar (see dkt. 72 at 27-29), the motion for evidentiary hearing as to this issue will be denied.
Summary of Procedural Findings
The Court concludes that the following claims are procedurally barred: the Fifth and Eighth Amendment aspects of Claims 1, 5 and 6; the Fifth, Sixth and Eighth Amendment aspects of Claim 7; the Fifth, Sixth and Seventh Amendment aspects of Claim 40/41; and Claims 23, 29-33, 35, 36 and 44. These claims or portions of claims will be dismissed with prejudice. Claims 34, 37(b) and 40/41 (in part) are meritless and will be dismissed with prejudice. Claim 37(a) is premat ure and will be dismissed without prejudice. Accordingly, Petitioner's motions for evidentiary development as to Claims 23, 29-37, 40/41 and 44 are summarily denied.
LEGAL STANDARD FOR EVIDENTIARY HEARING, EXPANSION OF THE RECORD AND DISCOVERY
Evidentiary Hearing
The decision whet her to grant an evidentiary hearing when there are material facts in disp ute is generally at the discretion of the district court judge. See Townsend v. Sain, 372 U.S. 293, 312, 318 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), and limited by § 2254(e)(2);Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir. 1999); Rule 8, Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (providing that the district court judge shall determine if an evidentiary hearing is required). However, a judge's discretion is significantly circumscribed by § 2254(e)(2) of the AEDPA. See Williams v. Taylor, 529 U.S. 420 (2000).
Section 2254 provides that:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made ret roactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constit utional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2) (emphasis added).
As interpreted by the Supreme Court, subsection (e)(2) precludes an evident iary hearing in federal court only if the failure to develop a claim's factual basis is due to a "lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams, 529 U.S. at 432. "The purpose of the fault component of `failed' is to ensure the prisoner undertakes his own diligent search for evidence." Id. at 435. The Court found that this rule served AEDPA's goal of furthering comity in that "federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Id.; see also Cardwell v. Netherland, 971 F. Supp. 997, 1008 (E.D. Va. 1997) ("Ordinarily, a § 2254 petition is limited to the factual record developed in state court proceedings"), aff'd Cardwell v. Greene, 152 F.3d 331 (4th Cir. 1998), overruled on other grounds, Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000). In correlation, subsection (e)(2) allows fact ual development when a petitioner diligently attempts to develop the fact ual basis of a claim in state court and is "thwarted, for example, by the conduct of another or by happenstance was denied the opportunity to do so." Williams, 529 U.S. at 432; see Baja, 187 F.3d at 1078-79.
In compliance with § 2254(e)(2), when the factual basis for a particular claim has not been fully developed in state court, the first question in evaluat ing whether to grant an evidentiary hearing on the claim is whether the petitioner was diligent in attempting to develop its factual basis. See Baja, 187 F.3d at 1078 (quoting Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir. 1998), overruled on other grounds, Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000)). The Supreme Court set an objective standard for determining "diligence" — whether a petitioner "made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court."Williams, 529 U.S. at 435. For example, when there is information in the record that would alert a reasonable attorney to the existence and importance of certain evidence, the attorney "fails" to develop the factual record if he does not make reasonable efforts to sufficiently investigate and present the evidence to the state court. See id. at 438-40 (counsel not diligent where he was on notice of possibly material evidence but conducted only a cursory investigation); Alley v. Bell, 307 F.3d 380, 390-91 (6th Cir. 2002) (petitioner not diligent where he knew of and raised claims of judicial bias and jury irregularities in state court, but failed to invest igate all the factual grounds for such claims).
Absent unusual circumstances, diligence requires "that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Williams, 529 U.S. at 437; see Bragg v. Galaza, 242 F.3d 1082, 1090 (9th Cir. 2001), amended on denial of reh'g, 253 F.3d 1150 (9th Cir. 2001) ("inactions show insufficient diligence" on ineffective counsel claim because petitioner did not request an evidentiary hearing, and brought claim only on appeal and not in a collateral proceeding). What is more, the mere request for an evidentiary hearing may not be sufficient to establish diligence if a reasonable person would have taken additional steps. See Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (petitioner requested hearing but found not diligent because he failed to present affidavits of family members that were easily obt ained without court order and with minimal expense); see also Koste v. Dormire, 345 F.3d 974, 985-86 (8th Cir. 2003) (petitioner not diligent where, although he requested hearing, he made no effort to develop the record or assert any facts to support claim that his counsel was ineffective for knowing of and failing to investigate his psychiatric condition), cert. denied, 541 U.S. 1011 (2004). If an evidentiary hearing is requested, a petitioner's inability to persuade a state court to conduct such a hearing does not in itself demonstrate a lack of diligence. See Cardwell, 152 F.3d at 338.
In sum, if this Court determines that a petitioner has not been diligent in est ablishing the factual basis for his claims in state court, then the Court may not conduct a hearing unless the pet it ioner satisfies one of § 2254(e)(2)'s narrow exceptions. If, however, the petitioner has not failed to develop the factual basis of his claim in state court, the Court will then proceed to consider whether a hearing is appropriate or required under the criteria set forth by the Supreme Court in Townsend. 372 U.S. 293; see Baja, 187 F.3d at 1078 (quoting Cardwell, 152 F.3d at 337). A federal district court must hold an evidentiary hearing in a § 2254 case when the facts are in dispute if (1) the petitioner "alleges facts which, if proved, would entitle him to relief," and (2) the state court has not "after a full hearing reliably found the relevant facts." Townsend, 372 U.S. at 312-13. In addition, the Court established six circumstances under which there is presumptively no "full and fair hearing" at the state level:
(1) the merits of the factual dispute were not resolved in the state hearing;
(2) the state factual determination is not fairly supported by the record as a whole;
(3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing;
(4) there is a substantial allegation of newly discovered evidence;
(5) the material facts were not adequately developed at the state-court hearing; or
(6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.See id. at 313. In any other case in which the facts are in dispute and diligence has been established, the district court judge "has the power, constrained only by his sound discretion, to receive evidence bearing upon the applicant's constitutional claim." Id. at 318 (noting that if a "habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings, [the judge] may, and ordinarily should, accept the facts as found in the hearing").
Expansion of the Record
Rule 7 of the Rules Governing Section 2254 Cases authorizes a federal habeas court to expand the record to include additional material relevant to the det ermination of the merits of a petitioner's claims. Rule 7 provides:
The materials that may be required include letters predating the filing of the petition, documents, exhibits, and answers under oath to written interrogatories propounded by the judge. Affidavits may also be submitted and considered as part of the record.
Rule 7(b), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. The purpose of Rule 7 "is to enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing." Advisory Committee Notes, Rule 7, 28 U.S.C. foll. § 2254; see also Blackledge v. Allison, 431 U.S. 63, 81-82 (1977).
Section 2254(e)(2), as amended by the AEDPA, limits a petitioner's ability to present new evidence through a Rule 7 motion to expand the record in the same manner as it does with regard to evidentiary hearings. See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005) (holding that the conditions of § 2254(e)(2) generally apply to petitioners seeking relief based on new evidence, even when they do not seek an evidentiary hearing) (citing Holland v. Jackson, 124 S. Ct. 2736, 2737 (2004) (per curiam)). Thus, when a petitioner seeks to introduce, through a Rule 7 motion, new affidavits and other documents never presented in state court for the purpose of establishing the factual predicate of a claim, he must show both diligence in developing the factual basis in state court and relevancy of the evidence to his claim. If diligence is not shown, the requirements of § 2254(e)(2) must be satisfied before the Court can consider expansion of the record. To find otherwise would allow circumvention of the AEDPA's restriction against federal habeas courts holding evidentiary hearings in cases where the petitioner is at fault for failing to develop the facts in state court.
When a petitioner seeks to expand the record for reasons other than to introduce evidence to bolster the merits of his claim, the st rict ures of § 2254(e)(2) may not apply. See Boyko v. Parke, 259 F.3d 781, 790 (7th Cir. 2001) (finding it nonsensical to apply § 2254(e)(2) when expansion of the record is used for reasons other than to introduce new factual information on the merits of a claim). For example, expansion of the record may be appropriate to cure omissions in the state court record, see Dobbs v. Zant, 506 U.S. 357, 359 (1993) (per curiam) (reversing for failure to supplement the record with a late-discovered transcript); see also Rule 5, Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (directing answering party to submit portions of record it deems relevant), or to establish diligence pursuant to § 2254(e)(2). See Boyko, 259 F.3d at 792.
In evaluating the instant motion, the Court must first determine whether Pet itioner is seeking expansion of the record to achieve the same end as an evidentiary hearing. If so, the Court must then assess whether Petitioner demonstrated diligence in developing the factual basis of the claim in state court and, if not, whether he meets the requirements of § 2254(e)(2). In addition, the Court must determine whether the proffered evidence is relevant to a determination of the claim's merits, see Rule 7(a), 28 U.S.C. foll. § 2254, and whether the new evidence fundamentally alters the claim such that it is rendered unexhausted. See Vasquez, 474 U.S. at 258-59. If Petitioner is seeking expansion for some ot her purpose, such as curing omissions from the state court record, establishing cause and prejudice or a fundamental miscarriage of justice for a procedural default, or demonstrating diligence for purposes of showing the inapplicability of § 2254(e)(2), the Court need only evaluate relevance.
Discovery
Rule 6(a) of the Rules Governing Section 2254 Cases provides that "[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure, and may limit the extent of discovery." Rule 6(a), 28 U.S.C. foll. § 2254 (emphasis added). Thus, unlike the usual civil litigant in federal court, a habeas petitioner is not entitled to discovery "as a matter of ordinary course," Bracy v. Gramley, 520 U.S. 899, 904 (1997); see also Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999), and a habeas court should not allow a habeas petitioner "to use federal discovery for fishing expeditions to investigate mere speculation." Calderon v. United States Dist. Court for the Northern Dist. of Cal. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996); see also Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir. 1970) ("[h]abeas corp us is not a general form of relief for those who seek to explore their case in search of its existence"). Pursuant to Bracy, whet her a petitioner has established "good cause" for discovery requires a habeas court to determine the essential elements of the petitioner's substantive claim and evaluate whether "specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief." Id. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)).
MOTIONS DISCUSSION
The Court now assesses whether expansion of the record, discovery and/or an evidentiary hearing should be granted with respect to exhausted claims for which evidentiary development is sought: Claims 1 (in part), 2, 4, 5 (in part), 6 (in part), 7 (in part), 42, 45 and 48. Petitioner seeks to expand the record with Exhibit 3 only in support of procedurally barred claims; therefore, expansion as to that exhibit will be denied. Further, the parties agree that Exhibits 9 and 11 are already part of the state court record. (See PR doc. 7, App. Tab 8, 9, 11.) Accordingly, expansion as to those exhibits will be denied as moot. Petitioner does not argue that he can meet the statutory exceptions set forth in § 2254(e)(2)(A) (B); therefore, the Court may not grant an evidentiary hearing on any claims for which the Court determines Petitioner "failed to develop the factual basis." 28 U.S.C. § 2254(e)(2).
Claim 1 (in part)
Claim 1 alleges that the trial court violat ed Pet it ioner's right to a fair trial by denying his motion for a change of venue based on pretrial publicity. (Dkt. 40 at 43-49.) Petitioner seeks to expand the record with Exhibit 1, a collection of newspaper articles about the case published before, during and after trial. He also seeks discovery and an evidentiary hearing in support of this claim.
The Court finds that Petitioner is not entit led to expansion of the record or an evidentiary hearing because he was not diligent in developing this evidence in state court. On April 15, 1992, approximately six weeks prior to trial, Petitioner filed a motion for change of venue based on pretrial publicity and requested an evidentiary hearing. (CROA 92.) In the motion, Pet itioner stated that "[t]he records of all the media in Mohave County has [sic] been subpoenaed for this hearing and has [sic] been incorporated herein by reference and made a part hereof." (Id. at 2.) The trial court held an evidentiary hearing on the motion on April 22, 1992, during which Petitioner presented copies of numerous articles published in regional newspapers and testimony from David Hawkins, who worked for five northern Arizona radio stations and at times for the Arizona Republic, a statewide newspaper. (RT 4/22/92 at 13-48, 98-111; CROA Exs. C-F, H-I.) At the hearing, Petitioner stated that other outlets had been subpoenaed and he reserved the right to place additional evidence in the record based on responses to the subpoenas. (RT 4/22/92 at 39, 99.) The trial court found that Petitioner failed to carry the burden of proving that a change of venue was necessary to seat a fair and impartial jury, but reserved ruling pending jury selection. (Id. at 110-11.) Although the motion for change of venue was renewed more than a month later at the close of jury selection, Petitioner did not proffer additional evidence or seek leave to further develop the factual basis for this claim. (RT 5/29/92 at 24.) In addition, Petitioner did not attempt to further develop the factual basis of this claim in state post-conviction proceedings. Accordingly, the Court finds that Petitioner was not diligent and his motions for an evidentiary hearing and expansion of the record will be denied.
Petitioner's counsel issued subpoenas duces tecum to theKingman Standard; KBBC Radio Station, Lake Havasu City; KGM N-FM Radio Station, Kingman; KFWJ Radio Station, Lake Havasu City; Lake Havasu City Herald; Today News, Lake Havasu City; KNLB-91 FM Christian Radio, Lake Havasu City; KZUL-FM, Lake Havasu City; K-LUK LUCKY 108 FM, Bullhead City; K-West FM 98, Bullhead City; Mohave Valley News, Bullhead City; KMOH-TV 6, Bullhead City; KAAA-AM KZZZ-FM Radio Stations, Kingman; and theKingman Daily Miner.
"CROA Exs." refers to enumerated exhibits included in a one-volume "Index of Exhibits of Record of Appeal to the Supreme Court of Arizona" provided as part of the state court record in Robert Murray's habeas action, CV 99-1812-PHX-DGC.
The Court notes that only pretrial publicity is relevant to this claim. See Casey v. Moore, 386 F.3d 896, 906-909 (9th Cir. 2004) (citing Sheppard v. Maxwell, 384 U.S. 333, 363 (1966), Patton v. Yount, 467 U.S. 1025, 1033 (1984), Rideau v. Louisiana, 373 U.S. 723 (1963), and Irvin v. Dowd, 366 U.S. 717, 722 (1961)). To the extent Petitioner seeks to expand the record with articles published after jury selection, they are not relevant.
Petitioner also seeks leave to subpoena unidentified media outlets regarding pretrial publicity and to interview jurors about their biases. Petitioner's request lacks specificity. Moreover, as discussed above, because Petitioner was not diligent in develop ing this evidence in state court, the Court would not be able to consider any newly discovered evidence with respect to the merits of the claim. Boyko, 259 F.3d at 792 (finding that discovery should not be allowed to augment the merits of a petitioner's claims unless he was diligent); Murphy v. Bradshaw, No. C-1-03-053, 2003 WL 23777736, *2 (S.D. Ohio 2003) ("there cannot be good cause to discover facts which could not be presented because a petition is barred from an evidentiary hearing on those facts under 28 U.S.C. § 2254(e)(2)"); Charles v. Baldwin, No. CV-97-380-ST, 1999 WL 694716, at *2 (D. Or. Aug. 2, 1999) (no good cause for discovery to locate evidence in support of the merits of a claim unless pet it ioner first satisfies § 2254(e)(2)). The Court finds that Petitioner has not established good cause to conduct the requested discovery, and the motion will be denied.
Claim 2
Claim 2 alleges that Petitioner's right to a fair and impartial jury was violated by the trial court's refusal to sequester the jury during voir dire, trial and deliberations. (CROA 141; RT 5/27/92 at 21.) Petitioner seeks to exp and the record in support of this claim with Exhibit 1, discussed above. He also seeks discovery and an evidentiary hearing.
Petitioner did not proffer any evidence or attempt to otherwise develop the record in support of his sequest ration request in the trial court. Further, he did not develop the factual basis for this claim in state post-conviction proceedings. Petitioner does not suggest the materials in Exhibit 1 were not available during state proceedings. Accordingly, the Court finds that Petitioner was not diligent and his motions to expand the record and for an evidentiary hearing will be denied.
Petitioner seeks leave to depose: (1) an unidentified juror, whose spouse allegedly sat throughout the trial, including hearings held outside the presence of the jury; (2) another unidentified juror who allegedly had an ex parte discussion with the trial judge; and (3) other jurors who may have overheard deputies and the prosecut or discussing the case. (Dkt. 72 at 19.) Petitioner fails to provide any factual basis for the requested discovery. Moreover, as discussed above, because Petitioner was not diligent in developing this evidence in state court, the Court would not be able to consider any newly discovered evidence with respect to the merits of the claim.See Boyko, 259 F.3d at 792; Murphy, 2003 WL 23777736, at *2; Charles, 1999 WL 694716, at *2. The Court finds no good cause, and Petitioner's motion for discovery will be denied. Claims 4 and 5 (in part)
Claims 4 and 5 allege violations of Petit ioner's Sixth Amendment right to a trial jury drawn from a fair cross-section of the community and his Fourteenth Amendment right to equal protection. Claim 4 alleges that drawing the master jury pool from an eighteen-month-old list of licensed drivers violated his rights by excluding "young" persons of approximately the same age as Petitioner who had become licensed after that list was compiled but before his trial. (Dkt. 40 at 57.) He also alleges that the trial court's refusal to delay trial until after the ten-day state statutory period had run for prospective jurors to mail back questionnaires violated his rights by automatically excluding persons from rural areas with purportedly slower postal service. (Dkt. 40 at 58-59.) Claim 5 alleges that the Mohave County Jury Commissioner, Linda Seapy, improperly excused or disqualified prospective jurors in the master jury pool in violation of Petitioner's right to a jury drawn from a fair cross-section of the community. In particular, that she used subjective criteria in reviewing their responses to the questionnaire concerning their availability to serve as jurors or to be excused from serving, such as their elderly age, responsibility for the care of young children, or a mental or physical disability. (Dkt. 40 at 59-62.) Further, he alleges that Seapy improperly excused prospective jurors who expressed religious beliefs against sitting in judgment of others. (Id. at 60.) Pet it ioner also alleges that Seapy improperly delegated duties to her deputy clerk, failed to follow-up with persons who had not returned juror questionnaires, and failed to verify the accuracy of juror returns. (Id. at 62.) Petitioner seeks discovery, expansion of the record and an evidentiary hearing on these claims.
To prevail on a fair cross-section claim, a litigant must prove: "(1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the represent at ion of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentat ion is due to systematic exclusion of the group in the jury-selection process." Duren v. Missouri, 439 U.S. 357, 364 (1979). To establish a Fourteenth Amendment equal protection violation in the jury selection process, a defendant also must show discriminatory intent. See Castaneda v. Partida, 430 U.S. 482, 494 (1977); Thomas v. Borg, 159 F.3d 1147, 1150 (9th Cir. 1998). Petitioner presented Claims 4 and 5 on direct appeal, and the Arizona Supreme Court rejected both, finding that Petitioner had failed to establish any of the Duren prongs, which also precluded success on the equal protection allegations. Murray, 184 Ariz. at 22-24, 906 P.2d at 555-57.
With respect to Claim 4, Petitioner argues that the Arizona Supreme Court unreasonably applied Duren in finding that no cognizable group had been excluded. (Dkt. 56 at 15.) However, Pet it ioner cites only one case to support his claim that young persons are a distinctive group within the meaning of Duren, and that case, United States v. Butera, 677 F.2d 1376 (11th Cir. 1982), contains no discussion of a fair cross-section claim or youth as a distinctive group. (Dkt 40 at 59.) In addition, the Ninth Circuit has expressly held that young people do not comprise a cognizable, distinctive or identifiable group for purposes of a claim that such persons were underrepresented or excluded in the selection of prospective grand or petit jurors.United States v. Fletcher, 965 F.2d 781, 782 (9th Cir. 1992) (dealing with college students but noting that young adults are not a cognizable group); United States v. Kleifgen, 557 F.2d 1293, 1296 (9th Cir. 1977) (holding that neither non-high school graduates, non-working people, nor the young are cognizable classes); United States v. Potter, 552 F.2d 901, 904 (9th Cir. 1977); see also United States v. Pichay, 986 F.2d 1259, 1260 (9th Cir. 1993) (per curiam) (holding that young adults do not constitute a cognizable group for purposes of an equal protect ion challenge to the composition of a petit jury). Moreover, Petitioner cites no authority whatsoever to support his allegation that rural persons are a distinctive group. The Court concludes that Petitioner cannot show that the Arizona Supreme Court's decision rejecting Claim 4 is an unreasonable application of Duren. Because Claim 4 is meritless as a matter of law, the motions for evidentiary development will be denied and the claim dismissed.
With respect to Claim 5, Petitioner similarly contends that the Arizona Supreme Court "unreasonably applied Supreme Court precedent." (Dkt. 56 at 17.) Although Petitioner does not identify the precedent to which he refers,Duren also governs Claim 5. On their face, Petitioner's allegations do not satisfy any of the criteria necessary to state a fair cross-section or equal protection claim. Petitioner has not ident ified a single "dist inctive group" in the community that was excluded. To the contrary, Petitioner indicates that the jury commissioner arbitrarily excused individuals. As found by the Arizona Supreme Court, the actions of the jury commissioner as alleged did not amount to systematic exclusion. See Murray, 184 Ariz. at 24, 906 P.2d at 557 (finding that the jury commissioner used neutral criteria). The Court concludes that Petitioner fails to establish that the Arizona Supreme Court's decision rejecting Claim 5 was an unreasonable application of Duren. Because Claim 5 is meritless as a matter of law, the motions for evidentiary development will be denied and the claim dismissed.
The only "group" to which Petitioner specifically refers as possibly having been excluded includes those whose religious beliefs preclude them from sitting in judgment of others. Similarity among such jurors' beliefs fails to satisfy the "distinctive group" requirement. See Lockhart v. McCree, 476 U.S. 162, 174 (1986) ("groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing their duties as jurors . . . are not `dist inctive groups' for fair-cross-section purposes.").
Claim 6
Claim 6 alleges that the trial court violated Petitioner's rights under Batson v. Kentucky, 476 U.S. 79 (1986), by denying his challenge to the prosecutor's peremptory strikes of two prospective jurors who were Hispanic. (Dkt. 40 at 63-65.) Petitioner seeks discovery, an evidentiary hearing, and expansion of the record in support of this claim.
To bring a successful Batson challenge, a defendant must first establish a prima facie case by showing that (1) the defendant is a member of a cognizable group; (2) the prosecution has removed members of such a group; and (3) circumstances raise an "inference" that the challenges were motivated by race. 476 U.S. at 96. The burden then shifts to the prosecutor to articulate a race-neutral basis for the peremptory challenges.Id. at 97. Finally, the trial court must det ermine, in light of the prima facie case and the prosecutor's explanation, whether the defendant has proven purposeful discrimination. Id. at 98. In considering whether a prosecutor's explanations are race-neutral, a reviewing court considers only the "facial validity of the prosecut or's explanation." Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam).
On direct appeal, the Arizona Supreme Court up held the trial court's determination that the prosecutor's explanation for st riking the two prospective Hispanic jurors was race neutral.See Murray, 184 Ariz. at 25, 906 P.2d at 558. For this Court, the question then becomes whether that decision is erroneous in light of the record before the state court. None of the evidence sought to be developed by Petitioner is relevant to resolution of Claim 6, review of which is necessarily limited to the record that was before the trial court. Accordingly, Petitioner's motions for expansion of the record, discovery and an evidentiary hearing on this claim will be denied.
Claim 7
Claim 7 alleges that the trial court's denial of a defense request for access to the crime scene, in light of the alleged denial of adequate funds to retain experts, violated his Fourteenth Amendment rights. (Dkt. 40 at 65-67.) This claim was raised on direct appeal and denied by the Arizona Supreme Court on state law grounds as follows:
Defense counsel and two investigators were allowed to visit the crime scene in May 1991, shortly after the crimes and about one year before trial. Subsequently, a new attorney from the same public defender's office and an investigator were assigned to assist the original attorney. The new attorney and investigator never visited the crime scene. On the fourth day of trial, more than a year after the crime was committed, Roger's counsel orally moved for an order permitting the defense team to revisit the crime scene. The trial court denied the motion on the ground that defendant failed to show a substantial need for a second inspection. See Ariz. R. Crim. P. 15.1(e). The original attorney was still the primary counsel and the original investigators were still available. Furthermore, the crime scene had been cleaned up. The trial court did not abuse its discretion.Murray, 184 Ariz. at 36, 906 P.2d at 569.
Petitioner argues that the Arizona Sup reme Court's decision is contrary to established Federal law because the court should have reviewed the claim with an eye toward his constitutional right to access to evidence, rather than applying a deferential "abuse of discretion" standard. (Dkt. 56 at 20.) Petitioner further asserts that the state court "misstated the true facts that were correctly outlined in Appellant's opening brief to the supreme court." (Id. at 18-19.) Because Claim 7, as argued by Petitioner, presents a purely record-based claim that can be resolved by reference to the existing record, further evidentiary development is unnecessary. Petitioner's motions will be denied.
Claim 42
Petitioner seeks expansion of the record in support of Claim 42. In the Amended Petition, he captions this claim as: "The prosecutors [sic] discretion to seek the death penalty is without standards and is therefore unconstitutional." (Dkt. 40 at 146.) In contrast, in the body of the claim, Petitioner alleges only that there are no objective standards for the weighing of aggravation and mitigation, which violates his Eighth and Fourteenth Amendment rights. (Id. at 146-47.)
First, in Smith (Bernard) v. Stewart, 140 F.3d 1263, 1271 (9th Cir. 1998), the Ninth Circuit summarily rejected the petitioner's claims regarding the constitutionality of Arizona's death penalty, including a claim concerning the prosecutor's discretion to decide whether to seek the death penalty. Second, the Constitution requires only that states provide procedures to guide a sentencer's discret ion; "the absence of specific standards inst ructing the sentencer how to weigh the aggravating and mitigating factors does not render a death penalty statute unconstitutional." Ortiz, 149 F.3d at 944 (citing Zant v. Stephens, 462 U.S. 862, 880 (1983)). Because both facets of Claim 42 are meritless as a matter of law, the motion will be denied and the claim dismissed.
Claim 45
Claim 45 alleges that Petitioner's Sixth and Fourteenth Amendment rights to the effective assistance of counsel were violated by counsel sleeping during portions of his trial. (Dkt. 40 at 152-53.) The PCR court held an evidentiary hearing on this claim. (PCR doc. 8, tab 12 at 28.) Petitioner seeks a federal evidentiary hearing to "submit the same testimony [from the state evidentiary hearing] and perhaps some additional testimony from jurors" and "to admit the testimony of Judge Chavez depending upon his deposition testimony." (Dkt. 72 at 30.)
Petitioner is not entitled to a federal evidentiary hearing to present evidence already presented to the state court. To the extent Petitioner failed to seek or to present "addit ional testimony from jurors" at the PCR hearing, Petitioner has not demonstrated why the evidence could not have been presented during that hearing. Similarly, Petitioner fails to show or allege that he attempted to obtain sworn testimony from Judge Chavez during the PCR hearing. The Court concludes that Petitioner did not diligent ly develop this claim; therefore, the Court is barred from holding an evidentiary hearing pursuant to § 2254(e)(2), and the request will be denied.
Claim 48
Claim 48 alleges that Petitioner's Sixth and Fourteenth Amendment rights to the effective assistance of counsel were violat ed by trial counsel's failure to present exculpatory testimony. Sp ecifically, in a statement to police, John Anthony reported that he had observed three men with a dark blue car out side the victims' store the night of the murders and that the lights were on inside the store, which was unusual for that time of night. Petitioner further asserts that if his lead counsel, Frank Dickey, had interviewed Anthony, he would have learned that Anthony's wife, Angela, claimed to have heard a man threaten Dean Morrison the day before his death. (Dkt. 40 at 160.) Pet it ioner also asserts that Dickey failed to present testimony from a bartender who could have established an alibi for Petitioner and his brother. (Id.)
State Court Proceedings
In separate PCR pet it ions, Petitioner and his brother each raised similar IAC claims based on counsel's failures with regard to John Anthony. The PCR court considered Robert Murray's claim first and held an evidentiary hearing at which Robert Murray's counsel, Ruth O'Neill, testified. O'Neill stated that she assigned a defense investigator to locate Anthony and that the investigator reported that Anthony was at a "treatment center" affiliated with the Veterans' Administration in California. Neither defense counsel requested a continuance of trial to locate or subpoena Anthony . However, Petitioner's counsel did attempt to introduce Anthony's statement based on the witness's unavailability.
The trial court sustained the prosecutor's objections to admission of the statement as hearsay and lacking foundation. (RT 6/5/92 at 133-41.)
In denying Robert Murray's claim, the PCR court concluded the petitioner had failed to establish that Anthony had been available to testify or that O'Neill's attempts to locate Anthony were unreasonable. (CROA 3/25/98 at 67-68.) The court further concluded that, even if O'Neill's performance had been deficient, the overwhelming evidence of guilt negated any prejudice finding. (Id. at 68.) Subsequently, the PCR court summarily denied Petitioner's analogous claim, relying on its findings from Robert Murray's hearing that Anthony had not been available to testify at trial. (RT 1/10/00 at 10-11; PCR ME filed 1/10/00; PCR ME filed 1/20/00.)
In a motion for reconsideration, Petitioner proffered affidavits from John and Angela Anthony, who had been located by federal habeas counsel for Robert Murray. (PR doc. 8, tab 21 at 3-5.) In his affidavit, John Anthony generally described his observations the night of the murders, but in considerably less detail than in the initial interview with police. (Id., tab 9.) Angela Anthony recounted her husband telling her about seeing the three men and the car, which both thought was susp icious, and about hearing a man threaten Dean Morrison the day before the murders. (Id.) Neither addressed John Anthony's whereabouts, or his availability to appear as a witness, at the time of trial. (Id., tabs 8, 9, 21.) The PCR court denied the motion, and the Arizona Supreme Court summarily denied review. (RT 9/5/01 at 19-20; PR doc. 29.)
Analysis
To prevail on an IAC claim, a petitioner must show that counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). However, a court need not address both components of the inquiry; a court may dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, if that is easier, without evaluating counsel's performance. Id. at 697. Petitioner seeks evidentiary development solely as to the performance prong. Because the Court concludes that Petitioner cannot establish prejudice even if deficient performance is shown, it declines to allow further development of the claim.
To establish prejudice under Strickland, a pet it ioner must "show that there is a reasonable probability that, but for counsel's unp rofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."Id. at 694. Under this prong, "an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691.
The defense theory at trial was that the Murrays burglarized the store and home after finding the victims already dead. Petitioner asserts there is a reasonable probability he would not have been convicted if counsel had presented the following evidence: (1) John Anthony's st at ement that he observed three men at the store, who differed in appearance from the Murrays and who had a car different than the one driven by the Murrays; (2) Angela Anthony's st at ement that she heard a man threaten Morrison the day before the murders; and (3) an unidentified witness's testimony that the Murrays were elsewhere at the time the three men were seen at the store.
Evidence at trial reflected that sometime before 8:00 a.m. on May 14, 1991, police found one of Morrison's tow trucks abandoned west bound on I-40 near Kingman. A short while later, the victims' bodies were found at their residence. Both had suffered shotgun wounds to the head and mult iple gunshot wounds to the head and body. The store and house had been ransacked. Various .22, .25, and .38 caliber bullets, casings, and shells were found in the house, as well as shot gun pellets, but no expended shotgun shells were found. A couch cushion cover was missing as was the drawer from the store's cash register.
At roughly the same time, the Murrays, driving a white car eastbound on I-40 on nearly the opposite side of the state, were arrested by police on unrelated charges following a high speed chase. Robert, the driver, threw a loaded .38 revolver from the car, and Roger threw out a loaded .25 semiaut omatic pistol. Inside the vehicle, police found a loaded twelve-gauge sawed-off shotgun and live double-ought buckshot shells. Police also found a scanner and connecting knob in the car that fit the empty bracket of Morrison's tow truck found on westbound I-40 and a road atlas with circles drawn around the locations of two rural shops or restaurants — Oasis and Grasshopper Junction — that were not otherwise indicated on the map. In addition, police found a couch cushion cover matching the one missing from the victims' home that contained rolled coins stamped "Dean's Enterprises, Grasshopper Junction, Kingman, Arizona, 86401," along with a pillow case containing several hundred dollars in rolled coins and cash. Further, human blood and tissue were found on Robert's shirt, Roger's pants and the cushion cover that were later determined to be consistent with the victims' blood types. In addition, two spent shotgun shell casings were found in Robert's hip pocket and keys recovered from Robert's pocket were later determined to fit a pickup that was on Morrison's prop erty. Casings found at the crime scene and in Robert's pocket were fired by the three guns found with the Murrays.
As described in the opinion on direct appeal, "[t]he blood on Roger's pants could have come from either victim or Robert, but not from Roger. The blood on Robert's shirt could have come from either victim, but not from Robert or Roger. The blood on the cushion could have come from Appelhans, but not Morrison, Robert, or Roger." Murray, 184 Ariz. at 22, 906 P.2d at 555.
At the murder scene, police found prints from tennis shoes and Western-style boots. It was later determined that each matched tennis shoes and boots worn by Roger and Robert, respectively, at the time of their arrest. Further, the Murrays' shoeprints were the only unidentified ones entering or leaving the crime scene, and one trail of prints made by the tennis shoes, the boots and Morrison's slipp ers indicated resistance by Morrison. In addition, rolled and loose coins were found in the courtyard amidst intermingled shoeprints of the victims and the Murrays. The Murrays' and Morrison's shoeprints were also found out side the store near tire tracks left by Morrison's tow truck that was found abandoned on westbound I-40.
For there to be a reasonable probability of a different outcome based on the allegedly exculpatory evidence, jurors would have to believe that the victims were murdered by unknown persons who left the murder weapons, shotgun shells, and money at the scene before fleeing. Further, jurors would have to believe that the Murrays happened on the scene, found the victims dead, burglarized the store and residence, getting the victims' blood on their clothes, and took the guns, expended and unexpended shotgun shells, keys, money and the couch cushion cover. In addition, the Murrays must have then taken and lat er abandoned Morrison's tow truck on westbound I-40 or happened up on it after it was abandoned, and then removed the scanner and connecting knob from the tow truck before driving almost 300 miles. Given the overwhelming nature of the evidence at trial and the implausibility of the foregoing explanations of that evidence, the Court concludes that the purportedly exculpatory evidence does not undermine confidence in the outcome at trial. Petitioner cannot prevail on his IAC claim because he cannot est ablish prejudice. Accordingly, the IAC claim will be denied on the merits, and Pet it ioner's request for evidentiary development as to this claim will be denied.
Based on the foregoing,
IT IS ORDERED that, pursuant to Petitioner's request, Claims 43, 47, 49-52 and 54-56 are DISMISSED as duplicative of other claims in the Amended Petition. (Dkt. 56.)
IT IS FURTHER ORDERED that the following claims are DISMISSED WITH PREJUDICE: (a) Claims 1 (in part), 5 (in part), 6 (in part), 7 (in part), 23, 29-33, 35, 36, 40/41(in part), and 44 based on a procedural bar; and (b) Claims 4, 5, 34, 37(b), 42, 40/41 (in part) and 48 on the merits as a matter of law.
IT IS FURTHER ORDERED that Claim 37(a) is DISMISSED WITHOUT PREJUDICE as premature.
IT IS FURTHER ORDERED that Petitioner's Motion for Discovery and Evidentiary Hearing is DENIED. (Dkt. 72.) IT IS FURTHER ORDERED that Petitioner's Mot ion to Expand the Record Under Rule 7 of the Rules Governing Section 2254 Cases is DENIED. (Dkt. 73.)
IT IS FURTHER ORDERED that if, pursuant to LRCiv. 7.2(g), Petitioner or Resp ondents file a Motion for Reconsideration of this Order, such motion shall be filed within fifteen (15) days of the filing date of this Order.
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.