Smith v. Schriro

Full title: Todd Lee Smith, Petitioner, v. Dora Schriro, et al., Respondents

Court: United States District Court, D. Arizona

Date published: Mar 21, 2006

No. CV-03-1810-PHX-SRB (D. Ariz. Mar. 21, 2006)

Opinion

No. CV-03-1810-PHX-SRB.

March 21, 2006

ORDER RE: MOTIONS FOR RECORD EXPANSION, DISCOVERY, AND AN EVIDENTIARY HEARING

SUSAN BOLTON, District Judge

Petitioner Todd Lee Smith ("Petitioner") is a state prisoner under sentence of death. He has filed a Petition for Writ of Habeas Corpus alleging that he is imprisoned and sentenced in violation of the United States Constitution. Pending before the Court is Petitioner's Motion for Record Expansion, Discovery, and an Evidentiary Hearing. (Dkt. 46.)¹ Petitioner seeks evidentiary development as to Claims 1-7, 14-16, 18, and 20. Respondents filed a response, and Petitioner filed a reply. (Dkts. 57, 62.)

1 "Dkt." refers to the documents in this Court's case file.

Pursuant to the Court's general procedures governing resolution of capital habeas proceedings, the parties have completed briefing of both the procedural status and merits of Petitioner's claims. Therefore, the Court will first determine whether the claims for which Petitioner seeks evidentiary development are appropriate for review on the merits by a federal habeas court or subject to a procedural bar.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, a jury convicted Petitioner of two counts of first-degree murder (on premeditated and felony murders theories for each count), armed robbery and first-degree burglary arising from the robbery and deaths of Joe and Elaine Tannehill at a campground in Ashurst Lake, Arizona. Coconino County Superior Court Judge H. Jeffrey Coker sentenced Petitioner to death for the murders and to a term of imprisonment for the other counts. On direct appeal, the Arizona Supreme Court affirmed. State v. Smith, 193 Ariz. 452, 974 P.2d 431 (1999). A petition for certiorari to the United States Supreme Court was denied in October 1999. Smith v. Arizona, 528 U.S. 880 (1999).

Petitioner filed a petition for post-conviction relief ("PCR") pursuant to Rule 32 of the Arizona Rules of Criminal Procedure on February 2, 2002. Without holding an evidentiary hearing, the PCR court denied relief. On September 9, 2003, the Arizona Supreme Court summarily denied a petition for review. Thereafter, Petitioner initiated the instant habeas proceedings.

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 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 operative 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).² Commenting on the importance of fair presentation, the United States Supreme Court has stated:

2 Resolving whether a petitioner has fairly presented his claim to the state court is an intrinsically federal issue to 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).

If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.

Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam). Following Duncan, the Ninth Circuit Court of Appeals has held that a state prisoner has not "fairly presented" (and thus exhausted) federal claims in state court unless he specifically indicated to that court that the claims were based on federal law. See, e.g., Lyons v. Crawford, 232 F.3d 666, 669-70 (2000), as amended by 247 F.3d 904 (9th Cir. 2001) (general reference to insufficiency of evidence, right to be tried by impartial jury and ineffective assistance of counsel lacked the specificity and explicitness required to present federal claim);Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000) (broad reference to "due process" insufficient to present federal claim); see also Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) ("The mere similarity between a claim of state and federal error is insufficient to establish exhaustion."). A petitioner must make the federal basis of a claim explicit by citing specific provisions of federal statutory or case law, even if the federal basis of a claim is "self-evident," Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), or by citing state cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). Such explicit fair presentation must be made not only to the trial or post-conviction court, but to the state's highest court. Baldwin v. Reese, 541 U.S. 27, 32 (2004). 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).

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 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."Coleman, 501 U.S. at 735 n. 1. This is often referred to as "technical" exhaustion because although the claim was not actually exhausted in state court, the petitioner no longer has an available state remedy. See id. at 732 ("A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer `available' to him."); Gray v. Netherland, 518 U.S. 152, 161-62 (1996).

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 to be raised in a successive or untimely post-conviction relief proceeding, the notice of post-conviction relief must set forth the substance of the specific exception and the reasons for not raising the claim in the previous petition or in a timely manner. If the specific exception and meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner, the notice shall be summarily dismissed.

Ariz. R. Crim. P. 32.2 (West 2003) (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 petition for post-conviction relief. 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 not presented in a timely manner will the preclusive effect of Rule 32.2 be avoided. Ariz. R. Crim. P. 32.2(b), 32.4(a).

Therefore, 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 v. Reed, 489 U.S. 255, 262 (1989). A state procedural default is not independent 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 followed at the time of application by the state court. Ford v. Georgia, 498 U.S. 411, 423-24 (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 defaulted 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.

Ordinarily "cause" to excuse a default exists if a petitioner can demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Id. at 753. Objective factors which constitute cause include interference by officials which makes compliance with the state's procedural rule impracticable, a showing that the factual or legal basis for a claim was not reasonably available to counsel, and constitutionally ineffective assistance of counsel. Murray v. Carrier, 477 U.S. 478, 488 (1986). "Prejudice" is actual harm resulting from the alleged constitutional error or violation. Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). To establish prejudice resulting from a procedural default, a habeas petitioner bears the burden of showing not merely that the errors at his trial constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimension. United States v. Frady, 456 U.S. 152, 170 (1982). If a petitioner cannot meet the cause and prejudice standard, the Court still may hear the merits of procedurally defaulted claims if the failure to hear the claims would constitute a "fundamental miscarriage of justice." Sawyer v. Whitley, 505 U.S. 333 (1992).

PROCEDURAL STATUS OF CLAIMS

Petitioner seeks evidentiary development regarding Claims 1-7, 14-16, 18, and 20. Respondents concede that Claims 1 (in part), 2, 3 (in part), 4, 5 (in part), and 6 are properly exhausted. They contend that the remainder of the claims are procedurally defaulted in whole or in part, and each will be addressed below. The Court first addresses some general issues relevant to numerous claims.

Fifth Amendment Due Process Claims

With respect to most of his claims, Petitioner alleges that his due process rights under the Fifth Amendment were violated. It is the Fourteenth Amendment, not the Fifth Amendment that protects a person against deprivations of due process by a state. See U.S. Const. amend. XIV, § 1 ("nor shall any state deprive any person of life, liberty, or property without due process of law");Castillo v. McFadden, 399 F.3d 993, 1002 n. 5 (9th Cir. 2005) ("The Fifth Amendment prohibits the federal government from depriving persons of due process, while the Fourteenth Amendment explicitly prohibits deprivations without due process by the several States."). Because the Fifth Amendment Due Process Clause does not provide a cognizable ground for relief regarding Petitioner's state court conviction, the allegations that the Fifth Amendment Due Process Clause was violated will be dismissed as to every claim and will not be discussed below with respect to the individual claims.

Eighth Amendment Claims

With respect to almost every claim, Petitioner alleges that his right to be free of cruel and unusual punishment pursuant to the Eighth Amendment was violated. The right to be free of cruel and unusual punishment, by definition, is a protection related to the imposition or carrying out of a sentence. In other words, the protection afforded by the Eighth Amendment does not attach until a person is convicted and subject to punishment by the state.See Ingraham v. Wright, 430 U.S. 651, 664, 667, 671 n. 40 (1977) (summarizing that the Eighth Amendment circumscribes only the type of punishment imposable on those convicted, punishment grossly disproportionate to the crime and what can be criminalized and punished); Bell v. Wolfish, 441 U.S. 520, 536 n. 16 (1979) (noting that the Eighth Amendment has no application to pretrial detainees). There is no cognizable claim that Petitioner's rights under the Eighth Amendment were violated as to claims relating solely to a conviction. Because the Eighth Amendment does not provide a cognizable ground for relief regarding conviction-related claims, the allegations that the Eighth Amendment was violated will be summarily dismissed as to Claims 1-6 and 14.

Fundamental Error Review

Petitioner alleges that all of the claims in the Amended Petition are exhausted because the Arizona Supreme Court "conducted a thorough fundamental error review." (Dkt. 37 at 5.) However, at the time of Petitioner's direct appeal, the statute that required Arizona appellate courts to review criminal cases independently for fundamental error had been repealed, see A.R.S. § 13-4035 (repealed by Laws 1995, Ch. 198, § 1), and the Arizona Supreme Court's opinion is devoid of any reference to having conducted a fundamental error review.³ Moreover, even before repeal of this statute, the Ninth Circuit rejected the notion that the Arizona Supreme Court's statutory fundamental error review actually exhausted claims for purposes of federal habeas review. See Poland (Michael) v. Stewart, 117 F.3d 1094, 1105 (9th Cir. 1997) (Arizona's process of fundamental error review does not excuse a petitioner's failure to present federal claims to the state's highest court); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir. 1996) (rejecting argument that review for fundamental error by Arizona Supreme Court prevents procedural preclusion from attaching). Therefore, this Court rejects Petitioner's argument that fundamental error review exhausted any claims not actually presented to the Arizona Supreme Court.

3 In support of his claim that the Arizona Supreme Court conducted a thorough review for fundamental error in his case, Petitioner cites to appellate decisions in a wholly unrelated capital case that predates repeal of A.R.S. § 13-4035.

Waiver of Procedural Default Defense

Throughout his Traverse, Petitioner asserts that Respondents have waived the defense of procedural default for claims that Respondents assert are "technically" exhausted but procedurally barred from habeas review. (See, e.g., dkt. 32 at 34, 52, 88, 89, 90; dkt. 37 at 33, 50, 118, 124, 130.) Specifically, Petitioner asserts that Respondents waived the defense by failing to allege "what procedural bar applies and that there is no viable state court forum for Mr. Smith to now raise" his claims. (Dkt. 37 at 50.) The Court disagrees.

In a preliminary part of its Answer, Respondents expressly state that claims

not previously presented to the Arizona Supreme Court on direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present any additional claims would almost certainly be futile. See Ariz. R. Crim. P. 32.1(d)-(h), 32.4(a) (successive post-conviction relief in a capital case permissible only to raise certain categories of claims); State v. Mata, 185 Ariz. 319, 322-37, 916 P.2d 1035, 1048-53 (1996) (rules of preclusion and waiver strictly applied to capital petitioners in state post-conviction relief proceedings).

(Dkt. 32 at 17.) Respondents have asserted generally that any claim not presented in state court is procedurally defaulted because Petitioner is now precluded by Arizona's Rule 32 from exhausting the claim in state court. Respondents could have recited the pertinent state rule of preclusion for each individual claim it subsequently asserted was not properly exhausted in state court; however, the Court declines to find that Respondents have waived any procedural default because they implicitly refer back to the above-quoted part of their Answer when stating, without more, that a specific claim (or part of a claim) was not presented in state court and is now barred from habeas review.⁴ Cf. Franklin v. Johnson, 290 F.3d 1223, 1229-32 (9th Cir. 2002) (finding waiver of procedural default argument where state argued for the first time on appeal that the petitioner was procedurally barred from raising a claim in a successive state post-conviction petition). This was sufficient "to inform the district court and the petitioner of the asserted procedural reason why petitioner may not be heard in state or federal court." Id. at 1232. Consequently, Petitioner's repeated requests in his Traverse to file supplemental "cause and prejudice" briefing should the Court disagree with his waiver arguments are denied; Petitioner was provided an opportunity to raise cause arguments and did so throughout the Traverse, even as to claims for which he argued waiver of procedural default.

4 This finding is limited to the instances in which Respondents expressly assert that a claim was not presented in state court and is now procedurally barred. As discussed infra regarding Claim 3, Respondents' failure to address the procedural status of a claim can be deemed a waiver of any procedural default.

Claim 1

Petitioner alleges that the trial court erroneously instructed the jury regarding the definition of premeditation, in violation of his rights under the Sixth and Fourteenth Amendments. (Dkt. 24 at 81.) In his opening appellate brief, Petitioner presented a claim entitled, "The Premeditation Instruction in this Case Constituted Reversible Error." (AP doc. 13 at 9.)⁵ In the body of the argument, Petitioner argued only that the premeditation instruction given in his case was disapproved in State v. Ramirez, 945 P.2d 376 (Ariz.App. 1997), which is based solely on state law; he did not reference any federal cases or federal constitutional provisions. In its decision, the Arizona Supreme Court declined to address the claim because Petitioner was also convicted of felony murder, which does not require a finding of premeditation. Smith, 193 Ariz. at 339, 974 P.3d at 460. Petitioner re-raised the claim in his PCR, but referenced only the Ramirez decision and failed to cite federal law.⁶ (PCR-ROA doc. 29 at 39.)

5 "AP doc." refers to the documents filed in the Arizona Supreme Court during Petitioner's direct appeal (Case No. CR-97-0389-AP). "M.E." refers to the one-volume set of minute entries from Petitioner's trial and sentencing proceedings prepared for Petitioner's direct appeal. "PCR-ROA doc." refers to documents in the three-volume record on appeal prepared for Petitioner's petition for review to the Arizona Supreme from the denial of PCR relief. (Case No. CR-03-0039-PC). "PR doc." refers to documents filed in the Arizona Supreme Court during Petitioner's petition for review. "R.T." refers to the reporter's transcript. Certified copies of these records as well as the original trial transcripts were provided to this Court by the Arizona Supreme Court. (Dkt. 50.)

6 Petitioner's original PCR petition was returned to counsel because it exceeded the page limitations set forth in Rule 32.5 of the Arizona Rules of Criminal Procedure. (PCR-ROA doc. 26.) Consequently, in his re-filed PCR petition, Petitioner "attempted to skirt the page limit requirement" (PCR-ROA doc. 40) by attaching "exhibits" consisting of additional argument in support of various PCR claims (PCR-ROA doc. 30). The PCR court expressly refused to consider arguments and citations of cases contained in these "exhibits." (PCR-ROA doc. 40). Accordingly, this Court does not consider whether the additional argument and citations contained in Exhibit EE of the PCR petition exhausted Claim 1 because they were not fairly presented to the state court in a procedurally proper manner. See Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004) (observing that no meaningful opportunity for review afforded if claim not presented in manner required by state courts).

Although the Court determines that Petitioner failed to fairly present a federal constitutional claim based on the trial court's premeditation instruction, Respondents expressly concede exhaustion of Claim 1 in their Answer, except to the extent that it asserts prejudice at sentencing. (Dkt. 32 at 54.) Because Respondents expressly waive exhaustion and do not assert any procedural default defense, the Court concludes that Claim 1 should be addressed on the merits. 28 U.S.C. § 2254(b)(3);accord Kerns v. Ault, 408 F.3d 447, 449 n. 3 (8th Cir. 2005).

With respect to the allegation that use of the premeditation instruction led to prejudice at sentencing, Petitioner cites no authority to support his theory that an unconstitutional jury instruction at trial provides a basis for habeas relief from a sentence. Rather, resolution of Claim 1 turns on whether the instruction "so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 72. While success on this claim would necessarily void Petitioner's sentence as a result of reversing the conviction, the claim does not implicate sentencing independent of the conviction. Because Petitioner's sentence is irrelevant to the Court's analysis of Claim 1, the Court concludes that this aspect of Claim 1 fails to state a cognizable claim for relief. Accordingly, this aspect of the claim will be dismissed with prejudice; the remainder of Claim 1 will be decided on the merits.

Claim 3

Petitioner asserts that the prosecutor improperly: (A) argued irrelevant prejudicial matters during closing; (B) attacked defense counsel and experts; (C) vouched for the State's case; (D) evoked sympathy for the victims; (E) provided prejudicial expert rebuttal testimony; (F) commented on Petitioner's invocation of his right to counsel; and (G) shifted the burden of proof. (Dkt. 24 at 118-227.) He further argues that trial and appellate counsel's failures to object to alleged prosecutorial misconduct and to present such issues on direct appeal constituted ineffective assistance of counsel ("IAC"). (Id.)

Prosecutorial Misconduct Allegations

With respect to Petitioner's prosecutorial misconduct claims, Respondents assert only that allegations D and E were never presented in state court; they do not address allegations A, B, C, F or G. (Dkt. 32 at 40-41, 43-45.) Although the exhaustion requirement must be expressly waived by the State, 28 U.S.C. § 2254(b)(3), the same is not true of the procedural default defense. Franklin v. Johnson, 290 F.3d at 1230 (rejecting argument that § 2254(b)(3) precludes the application of ordinary implicit waiver rules to the habeas procedural default doctrine);Francis v. Rison, 894 F.2d 353, 355 (9th Cir. 1990) (finding that government waived procedural default argument by contending only that the petitioner had failed to exhaust remedies, which is "quite a different argument, of course, from asserting procedural default"). Because Respondents fail to address the procedural status of allegations A, B, C, F and G, the Court finds they have waived any procedural default defense; therefore, these claims will be addressed on the merits.

In addition, contrary to Respondents' contention, the Court finds that Petitioner presented the substantive prosecutorial misconduct aspect of allegations D and E in state court. In his PCR petition, Petitioner asserted that he was denied "due process" by the prosecutor's evocation of sympathy for the victims and cited Donnelly v. DeChristoforo, 416 U.S. 637 (1974). (PCR-ROA doc. 29 at 8.) In DeChristoforo, the Supreme Court assessed whether remarks by a prosecutor "so infected the trial with unfairness as to make the resulting conviction a denial of due process" under the Fourteenth Amendment. 416 U.S. at 643. Petitioner further asserted that a "defendant's due process rights are violated if prosecutorial misconduct renders a trial `fundamentally unfair,'" and in support cited Darden v. Wainwright, 477 U.S. 168, 178-83 (1986), which applies DeChristoforo in assessing a claim of prosecutorial misconduct. (PCR-ROA doc. 29 at 10.) In his argument concerning the prosecutor's use of expert rebuttal testimony, Petitioner cited state cases that referenced the Arizona Supreme Court's decision in State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993), which identifies the Darden decision as being in accord with the state court's analysis of prosecutorial misconduct claims. (PCR-ROA doc. 29 at 10.) In his subsequent petition for review to the Arizona Supreme Court, Petitioner again asserted that prosecutorial misconduct violated his right to due process as "guaranteed by the United States and Arizona Constitutions." (PR doc. 3 at 3, 30.) This was sufficient to fairly present a federal due process claim to the state courts. Accordingly, this Court will address allegations D and E on the merits.

IAC Allegations

Respondents concede that Petitioner exhausted IAC claims based on counsel's failure to object to prosecutorial misconduct as alleged above in A, D, and E. (Dkt. 32 at 33-34.) Respondents do not address the procedural status of allegations B, C or G; therefore, the Court finds that Respondents have waived any procedural default defense and these claims will be addressed on the merits. Franklin, 290 F.3d at 1230; Francis, 894 F.2d at 355.

In contrast, Respondents assert that an IAC claim based on allegation F was never presented in state court. The Court agrees. In his PCR petition, Petitioner asserted that counsel was ineffective for failing to object to the prosecutor's introduction into evidence of an unredacted transcript and recording of Petitioner's statement to police in which he invoked his right to counsel. (PCR-ROA doc. 29 at 38.) However, he did not subsequently include this claim in his petition for review to the Arizona Supreme Court. Thus, it was not exhausted,Boerckel, 526 U.S. at 848, and the Court must assess whether Petitioner now has an available state remedy to exhaust an IAC claim based on allegation F.

Available State Remedies

Petitioner argues that if the Court determines that any aspect of Claim 3 is not exhausted, the Court should stay these proceedings and allow him to return to state court. See Rhines v. Weber, 125 U.S. 1528 (2005). He does not specifically assert that he has a remedy available in state court for the IAC claim relating to Claim 3-F, but suggests there are "several exceptions to preclusion contained in Rule 32 which create the possibility of a viable state court forum." (Dkt. 37 at 52.)

It is the role of the district court to determine if a petitioner presently has a remedy available in state court. See Ortiz, 149 F.3d at 931 (citing Harris, 489 U.S. at 269-70 (O'Connor, J., concurring)). In making that decision, the court must "assess the likelihood that a state court will accord the habeas petitioner a hearing on the merits of his claim."Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) (citingHarris, 489 U.S. at 268 (O'Connor, J., concurring)). The question is whether "there is some reasonable probability that (state) relief . . . will actually be available." Matias v. Oshiro, 683 F.2d 318, 320 (9th Cir. 1982) (citing Powell v. Wyrick, 657 F.2d 222, 224 (8th Cir. 1981)). If a district court determines that a state remedy is available, the court must then assess "whether there was good cause for the petitioner's failure to exhaust his claims first in state court." Rhines, 125 S. Ct. at 1535. "Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless." Id.

Rules 32.2(b) and 32.4(a) of the Arizona Rules of Criminal Procedure provide that a petitioner may only file a successive, untimely PCR petition based on claims that fall within the exceptions to preclusion set forth in Rule 32.1(d)-(h). Such a petition must set forth "meritorious reasons" for not raising the claim in an available earlier proceeding. Here, Petitioner actually presented the IAC aspect of Claim 3-F in his first PCR petition; the default occurred when PCR counsel neglected to include the claim in the subsequent petition for review to the Arizona Supreme Court. The Court concludes that the claim does not fall within any of Arizona's exceptions to preclusion and that Petitioner would be unable to show meritorious reasons under Rule 32.2(b) for not including the IAC allegation of Claim 3-F in his petition for review from the denial of his first PCR petition. Moreover, because this is an IAC claim, Petitioner would be automatically precluded from seeking relief in a successive PCR proceeding. See Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) (noting that an IAC claim raised in a successive petition will be precluded automatically if an IAC claim was presented in an earlier PCR petition). Thus, the Court finds there is no "reasonable probability that (state) relief . . . will actually be available." Matias, 683 F.2d at 320.

Because the Court finds there are no remedies presently available to Petitioner in state court, the IAC aspect of Claim 3-F is technically exhausted but procedurally defaulted.Coleman, 501 U.S. at 732, 735 n. 1. This claim will be barred from review on the merits absent a showing of cause and prejudice or fundamental miscarriage of justice.

Cause and Prejudice/Fundamental Miscarriage of Justice

As cause for any procedural default found by the Court, Petitioner asserts that Arizona's post-conviction process is inadequate and ineffective to protect his right to counsel and that PCR counsel performed deficiently.

A claim of counsel ineffectiveness can establish sufficient cause only when it rises to the level of an independent constitutional violation. Coleman, 501 U.S. at 755. Thus, before ineffectiveness may be used to establish cause for a procedural default, it must have been presented to the state court as an independent claim. See Edwards v. Carpenter, 529 U.S. 446, 451-53 (2000) ("ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted"); Murray, 477 U.S. at 489-90 ("the exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default."); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (exhaustion requires petitioner to first raise ineffective appellate counsel claim separately in state court before alleging it as cause for default). However, when a petitioner has no constitutional right to counsel, there can be no constitutional violation arising out counsel's ineffectiveness. Coleman, 501 U.S. at 752. There is no constitutional right to the effective assistance of counsel in state post-conviction proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Murray v. Giarratano, 492 U.S. 1, 7-12 (1989) (the Constitution does not require states to provide counsel in PCR proceedings even when the putative petitioners are facing the death penalty); Bargas v. Burns, 179 F.3d 1207, 1215 (9th Cir. 1999) (holding that IAC in PCR proceeding cannot constitute cause); Bonin v. Vasquez, 999 F.2d 425, 429-30 (9th Cir. 1993) (refusing to extend the right of effective assistance of counsel to state collateral proceedings);Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir. 1990).

The fact that the PCR proceeding was Petitioner's first and only opportunity to assert claims of ineffectiveness at trial and on appeal does not change the analysis. In Evitts v. Lucey, 469 U.S. 387, 396 (1985), the Court held that a petitioner is entitled to effective assistance of counsel on a first appeal as of right. However, since Evitts was decided, the courts have clarified that the holding in Evitts applies strictly to a first appeal as of right, even if particular types of claims could not have been raised in that appeal, because there is no constitutional right to counsel in state PCR proceedings. See Finley, 481 U.S. at 558; Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996); Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996) (IAC claim defaulted for not being raised in first habeas petition, even though the same counsel represented petitioner in both proceedings, because no right to counsel in habeas proceedings);Jeffers v. Lewis, 68 F.3d 299, 300 (9th Cir. 1995) (en banc) (plurality) (ruling an Arizona petitioner had "no Sixth Amendment right to counsel during his state habeas proceedings even if that was the first forum in which he could challenge constitutional effectiveness on the part of trial counsel"); see also Evitts, 469 U.S. at 396 n. 7 (noting that discretionary appeals are treated differently because there is no right to counsel). Petitioner's argument fails because there is no constitutional right to counsel for PCR proceedings even if it is an Arizona petitioner's first opportunity to raise an ineffectiveness claim.

The Court is also unpersuaded by Petitioner's contention that Arizona court rules render the PCR proceeding part of a mandatory bifurcated appellate process for capital cases with a statutory right to counsel and, therefore, due process requires such counsel to be effective. Petitioner cites no case, and the Court has found none, which holds that a state is required by the federal constitution to provide counsel in PCR proceedings. The fact that a state may, "as a matter of legislative choice," Ross v. Moffitt, 417 U.S. 600, 618 (1974), provide for counsel in discretionary appeals following a first appeal of right does not extend the Sixth Amendment's guarantee of effective counsel to discretionary appeals. See Evitts, 469 U.S. at 394, 397 n. 7;Finley, 481 U.S. at 559 (where a state provides a lawyer in a state post-conviction proceeding, it is not "the Federal Constitution [that] dictates the exact form such assistance must assume," rather, it is in a state's discretion to determine what protections to provide). Further, the Ninth Circuit has held explicitly that "ineffective assistance of counsel in habeas corpus proceedings does not present an independent violation of the Sixth Amendment enforceable against the states through the Due Process Clause of the Fourteenth Amendment." Bonin, 77 F.3d at 1160. Because Petitioner's PCR proceeding took place after his appeal of right, it was a discretionary proceeding that did not confer a constitutional right to the effective assistance of counsel. Thus, even assuming PCR counsel's performance did not conform to minimum standards, it did not violate the federal constitution and cannot excuse the procedural default of any claims.

Petitioner has not shown cause for the procedural default of the IAC aspect of Claim 3-F.⁷ Therefore, the Court declines to address prejudice. See Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir. 1991). In addition, the Court finds no disputed issues of fact warranting an evidentiary hearing on these issues. See Campbell v. Blodgett, 997 F.2d 512, 524 (9th Cir. 1992) ("An evidentiary hearing is not necessary to allow a petitioner to show cause and prejudice if the court determines as a matter of law that he cannot satisfy the standard."). Petitioner's request for a hearing on cause and prejudice is therefore denied.

7 Nor has Petitioner established that IAC of PCR counsel constitutes cause for any further claims the Court determines in this Order are defaulted.

Petitioner does not assert that a fundamental miscarriage of justice will occur if the defaulted aspect of Claim 3 is not addressed on the merits. Because Petitioner has failed to establish cause and prejudice or a fundamental miscarriage of justice to overcome the default, the IAC aspect of Claim 3-F is procedurally barred and will be dismissed with prejudice; all remaining aspects of Claim 3, including all seven substantive prosecutorial misconduct allegations (A-G) and IAC allegations A-E and G, will be reviewed on the merits and considered with respect to the motions for evidentiary development.

Claim 5

Petitioner asserts that appellate counsel was ineffective for failing to present in his state appellate brief the substantive issues contained in Claims 2-4 of his First Amended Petition for Writ of Habeas Corpus.⁸ (Dkt. 24 at 237.) Respondents concede that Claim 5 is exhausted to the extent it asserts appellate IAC for failing to raise on direct appeal Claim 4 (prosecutor's late notice of expert rebuttal witness). (Dkt. 32 at 52.) Except for the allegation of prosecutorial misconduct in Claim 3-F, the Court finds, for the reasons already discussed with respect to Claim 3, that Petitioner fairly presented in state court an appellate IAC claim based on counsel's failure to raise on appeal the prosecutorial misconduct allegations identified as A, B, C, D, E, and G.

8 The Amended Petition states that "appellate counsel was ineffective for failing to raise the aforementioned claims on direct appeal." (Dkt. 24 at 237; emphasis added.) However, as discussed supra, Respondents concede that Claim 1 was exhausted on direct appeal. Because there can be no claim of appellate ineffectiveness for failing to present a claim the parties agree was actually raised on appeal, the Court construes Claim 5 to allege IAC for appellate counsel's failure to raise on appeal the substantive issues underlying Claims 2-4.

Claim 2 alleges IAC for enlisting James Jarrett as a crime scene reconstruction expert. In his PCR, Petitioner did not separately argue appellate ineffectiveness for the failure to raise Claim 2 on direct appeal (PCR-ROA doc. 29 at 28-37), nor did he include an appellate IAC claim on that ground in his petition for review to the Arizona Supreme Court (PR doc. 3 at 23). Consequently, the Court finds that this aspect of Claim 5 was not properly exhausted. Moreover, the allegation is plainly meritless. Rhines, 125 S. Ct. at 1535. Appellate counsel cannot be faulted for failing to raise Claim 2 on direct appeal because it alleges trial IAC. At the time of Petitioner's direct appeal, Arizona courts clearly required that trial IAC claims be raised in a PCR, not on appeal. See State v. Spreitz, 202 Ariz. 1, 2, 39 P.3d 525, 526 (2002) (describing historical preference for presentation of trial IAC claims in PCR proceedings). Accordingly, this aspect of Claim 5 will be dismissed with prejudice as meritless.

In sum, Claim 5 will be reviewed on the merits and considered with respect to the motions for evidentiary development only to the extent it asserts ineffectiveness for counsel's failure to challenge on appeal (1) the prosecutorial misconduct allegations identified as A, B, C, D, E, and G in Claim 3, and (2) the untimely disclosure issue set forth in Claim 4.

Claim 7

Petitioner argues that the trial court erred in finding the pecuniary gain aggravating factor under A.R.S. § 13-703(F)(5), in violation of his rights under the Sixth, Eighth and Fourteenth Amendments. (Dkt. 24 at 310.) Respondents argue this claim was not properly exhausted because Petitioner failed to raise it as a federal claim in state court. (Dkt. 32 at 72.)

In his opening appellate brief, Petitioner argued that the sentencing court should not have found that the murders were committed for pecuniary gain under Arizona law. (AP doc. 13 at 13.) That is, he only argued that, under Arizona law, his actions failed to establish the factor because he did not kill to steal. (Id. at 13-14.) Because Petitioner did not alert the state supreme court to the federal basis of Claim 7, he failed to fairly present the claim. See Baldwin v. Reese, 124 S. Ct. 1347, 1350-51 (2004). However, because the Arizona Supreme Court considered the pecuniary gain aggravating factor during its independent sentencing review, this Court determines whether that review exhausted the claim.

The Arizona Supreme Court, through its jurisprudence, has repeatedly stated that it independently reviews each capital case to determine whether the death sentence is appropriate. In State v. Gretzler, 135 Ariz. 42, 54, 659 P.2d 1, 13 (1983), the court stated that the purpose of independent review is to assess the presence or absence of aggravating and mitigating circumstances and the weight to give to each. See also State v. Blazak, 131 Ariz. 598, 604, 643 P.2d 694, 700 (1982). To ensure compliance with Arizona's death penalty statute, the court reviews the record regarding aggravation and mitigation findings, and then decides independently whether the death sentence should be imposed. State v. Brewer, 170 Ariz. 486, 493-94, 826 P.2d 783, 790-91 (1992). The Arizona Supreme Court has also said that in conducting its review, it determines whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factors. State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51 (1976), sentence overturned on other grounds, Richmond v. Cardwell, 450 F. Supp. 519 (D. Ariz. 1978). Arguably, such a review rests on both state and federal grounds. See Brewer, 170 Ariz. at 493, 826 P.2d at 790 (finding that statutory duty to review death sentences arises from need to ensure compliance with constitutional safeguards imposed by the Eighth and Fourteenth amendments); State v. Watson, 129 Ariz. 60, 63, 628 P.2d 943, 946 (1981) (discussing Gregg v. Georgia, 428 U.S. 153 (1976), and Godfrey v. Georgia, 446 U.S. 420 (1980), and stating that independent review of death penalty is mandated by the U.S. Supreme Court and necessary to ensure against arbitrary and capricious application).

While the state court's independent review does not encompass any and all alleged constitutional error at sentencing, the Court must determine if it encompassed Petitioner's claim that the trial court erred in finding the pecuniary gain aggravating factor. In the Arizona Supreme Court's written opinion, it reviewed each of the aggravating factors found by the sentencing judge to independently determine its existence and whether a death sentence was appropriate. Smith, 193 Ariz. at 439-41, 974 P.2d at 460-62. With respect to the pecuniary gain factor, A.R.S. § 13-703(F)(5), the court reviewed the evidence in the record and determined that the (F)(5) factor had been satisfied. Id. at 440, 937 P.2d at 461. The supreme court's actual review of the trial court's finding of the (F)(5) factor sufficiently exhausted Claim 7. See Sandstrom v. Butterworth, 738 F.2d 1200, 1206 (11th Cir. 1984). Thus, the Court finds that Claim 7 was actually exhausted, and it will be reviewed on the merits and considered with respect to the motions for evidentiary development.

Claim 14

Petitioner asserts that, by failing to test a spot of blood on a flashlight found at the murder scene, the prosecution violated his rights under the Fourteenth Amendment and trial counsel violated his rights under the Sixth Amendment. (Dkt. 24 at 348). He argues the claims were exhausted as part of the Arizona Supreme Court's fundamental error review and independent review of the death sentence. (Id.) Alternatively, Petitioner requests a stay and asserts that state court relief is still available under Rule 32.1(e) of the Arizona Rules of Criminal Procedure. (Id.; dkt. 37 at 119.) Respondents argue that these allegations were never presented in state court and are now barred. (Dkt. 32 at 89.)

As already discussed, the Arizona Supreme Court did not conduct a review for fundamental error in this case. Further, this claim clearly falls outside the scope of the state supreme court's independent sentencing review and was not thereby exhausted.Cf. Moormann v. Schriro, 426 F.3d 1044, 1057-58 (9th Cir. 2005) (identifying types of claims that fall outside scope of Arizona Supreme Court's independent sentencing review). Accordingly, the Court assesses whether Petitioner has an available state remedy to exhaust these allegations now.

Arizona's post-conviction rules allow, as an exception to preclusion, the filing of a successive petition raising a claim of newly-discovered evidence. Ariz. R. Crim. P. 32.2(b); 32.1(e). To satisfy this exception, a petitioner must first establish "meritorious reasons" why the claim was not raised in a previous petition and in a timely manner, Ariz. R. Crim. P. 32.2(b), and then show that newly-discovered material facts probably exist and that such facts probably would have changed the verdict or sentence, Ariz. R. Crim. P. 32.1(e). Newly-discovered material facts exist if:

(1) The newly discovered material facts were discovered after the trial.

(2) The defendant exercised due diligence in securing the newly discovered material facts.

(3) The newly discovered material facts are not merely cumulative or used solely for impeachment. . . .

Id. (emphasis added).

The Court concludes that Claim 14 does not fall within Arizona's "newly-discovered evidence" exception to preclusion because there are no "newly-discovered" facts at issue and Petitioner has not acted with due diligence. Petitioner asserts that blood on the flashlight, if shown to be his, would provide evidence that the victims hit him with the flashlight and that the murders were reflexive, not premeditated. However, there is no evidence establishing Petitioner as the source of the blood. Even if DNA testing today so established, Petitioner would be precluded from relief because he cannot show that he exercised due diligence to develop such evidence. Nothing in the record establishes that the prosecution interfered with Petitioner's ability to have the blood spot on the flashlight tested prior to trial. During trial, the investigating detective testified that, although the prosecution chose not to test the flashlight, it would have been turned over to the defense for testing if such a request had been made. (R.T. 4/16/97 at 45.) Furthermore, the Court concludes that Petitioner would be unable to show meritorious reasons under Rule 32.2(b) for not pursuing Claim 14 in his first PCR proceeding and would be automatically precluded from presenting the IAC aspect of Claim 14 because he raised other IAC claims in his first PCR.Smith, 202 Ariz. at 449, 46 P.3d at 1070. Thus, the Court finds there is not a "reasonable probability that (state) relief . . . will actually be available." Matias, 683 F.2d at 320. Because the Court finds there are no remedies presently available to Petitioner in state court, Claim 14 is technically exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n. 1.

As cause for the default, Petitioner asserts the merits of Claim 14 — that the prosecution violated its duty, as set forth in Brady v. Maryland, 373 U.S. 83 (1963), to disclose material evidence favorable to the defense. To succeed on a Brady claim, a petitioner must establish (1) that evidence favorable to the accused was (2) suppressed by the prosecution, either willfully or inadvertently, which (3) resulted in prejudice to the defense.Banks v. Dretke, 540 U.S. 668, 691 (2004) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). Establishing the second factor also establishes cause for any failure to develop aBrady claim in state court. Id. Here, Petitioner cannot establish cause because there has been no suppression of evidence by the prosecution. Petitioner does not allege, and the record does not support, a claim that the State actually tested the blood spot on the flashlight and thereby obtained evidence favorable to the defense. Nor does Petitioner allege that the State interfered with defense access to the flashlight. See Grisby v. Blodgett, 130 F.3d 365, 371 (9th Cir. 1997) ("Because the carpet was available to Grisby for testing, the police's failure to test it did not violate due process."). As already noted, the record reveals that although the State declined to test the blood spot, it would have provided the flashlight for testing by the defense if counsel had made such a request. (R.T. 4/16/97 at 45.)

The Court concludes that Petitioner has failed to establish cause for the default of Claim 14; therefore, the Court need not address prejudice. Petitioner does not argue that a fundamental miscarriage of justice will occur if this claim is not addressed on the merits. Accordingly, Claim 14 is procedurally barred and will be dismissed with prejudice.

Claim 15

Petitioner asserts that his Sixth and Fourteenth Amendment rights were violated by counsel's deficient representation at sentencing. (Dkt. 24 at 353.) He argues this claim was exhausted as part of the Arizona Supreme Court's independent review of the death sentence. (Id.) Alternatively, Petitioner requests a stay and asserts that state court relief is still available under Rule 32.1(g) of the Arizona Rules of Criminal Procedure becauseWiggins v. Smith, 539 U.S. 510 (2003), represents a significant change in the law. (Id.; dkt. 37 at 124.) Respondents argue that this claim was never presented in state court and is now barred. (Dkt. 32 at 52.)

The Court rejects Petitioner's contention that the state supreme court's independent sentencing review exhausted Claim 15.See Moormann v. Schriro, 426 F.3d at 1057 (holding that Arizona Supreme Court's independent sentencing review failed to exhaust a sentencing IAC claim). The Court also finds that Petitioner would be barred if he returned to state court to exhaust this claim now.

Arizona's post-conviction rules allow, as an exception to preclusion, the filing of a successive petition raising a claim based on a significant change in the law "that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence." Ariz. R. Crim. P. 32.2(b); 32.1(g). Claim 15 does not fall within this exception because Wiggins is not a significant change in the law. In Wiggins, the Supreme Court applied the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), in determining that defense counsel provided constitutionally deficient representation. 539 U.S. at 521-23 (citing Strickland and stating that issue before the Court was whether the investigation supporting counsel's decision not to introduce mitigating evidence was reasonable). There is nothing "new" about the Wiggins decision; it is merely an application ofStrickland. See Landrigan v. Schriro, No. 00-99011, 2006 WL 549027, at *6 n. 4 (9th Cir. Mar. 8, 2006) ("Although Wiggins is a recent Supreme Court case, it applied the familiar Strickland inquiry applicable to ineffective assistance claims in a post-AEDPA case."). Because the Court finds there are no remedies presently available to Petitioner in state court, Claim 15 is technically exhausted but procedurally defaulted.Coleman, 501 U.S. at 732, 735 n. 1.

Petitioner does not assert cause and prejudice for the default or argue that a fundamental miscarriage of justice will occur if this claim is not decided on the merits. Accordingly, Claim 15 is procedurally barred and will be dismissed with prejudice.

Claim 16

Petitioner alleges that his rights under the Sixth, Eighth and Fourteenth Amendments were violated because the state courts "operated under the unconstitutional assumption that Mr. Smith had to show a causal nexus between his proffered mitigating evidence and the crime." (Dkt. 24 at 356.) He argues this claim was exhausted as part of the Arizona Supreme Court's independent review of the death sentence. (Id.) Alternatively, Petitioner requests a stay and asserts that state court relief is still available under Rule 32.1(g) of the Arizona Rules of Criminal Procedure because Tennard v. Dretke, 542 U.S. 274 (2004), represents a significant change in the law. (Id.; dkt. 37 at 131.) Respondents argue that this claim was never presented in state court and is now barred. (Dkt. 32 at 90.)

The Court rejects Petitioner's argument that the state supreme court's independent sentencing review exhausted Claim 16. Petitioner references no authority suggesting that the scope of Arizona's review encompasses any and all constitutional error at sentencing, and this Court has found none. Rather, as already noted, it appears from Brewer that the state court's review is limited to ensuring that imposition of a death sentence rests on permissible grounds. See also State v. Watson, 129 Ariz. at 63, 628 P.2d at 946.

In Nave v. Delo, the Eighth Circuit reached a similar conclusion concerning the scope of the Missouri Supreme Court's capital sentencing review. In that case, the Court analyzed a Missouri statute which directed the state's high court to consider "whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor."Id. at 1039. Determining that the phrase "arbitrary factor" is a catch-all intended only to describe possible improper bases for the imposition of the death penalty, the Nave court held that a claim alleging an unconstitutional sentencing instruction fell outside the limited scope of the state court's mandatory review.

As in Nave, this Court does not read the Arizona Supreme Court's pronouncement in State v. Richmond that it must determine "whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factors," 114 Ariz. at 196, 560 P.2d at 51, to encompass implicit review of any conceivable constitutional error. Rather, the federal constitutional aspect of the court's review is limited to ensuring that the death sentence rests on permissible grounds. With respect to the instant issue, the Court finds that the Arizona Supreme Court's limited review did not necessarily include analysis of whether the state courts were operating under an alleged "unconstitutional assumption" concerning the consideration of mitigation evidence. Consequently, Claim 16 was not exhausted in state court.

The Court finds that Petitioner would be barred if he returned to state court to exhaust this claim now. Arizona's post-conviction rules allow, as an exception to preclusion, the filing of a successive petition raising a claim based on a significant change in the law "that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence." Ariz. R. Crim. P. 32.2(b); 32.1(g). Claim 16 does not fall within this exception because Tennard is not a significant change in the law. In Tennard, the Supreme Court assessed the petitioner's entitlement to a certificate of appealability ("COA") on the issue of whether instructions given to the jury in the penalty phase of his case violated the Court's holding in Penry v. Lynaugh, 492 U.S. 302 (1989) (holding that the Texas capital sentencing scheme provided a constitutionally inadequate vehicle for jurors to consider and give effect to mitigating evidence). 542 U.S. at 276. The Court assessed whether the Fifth Circuit had erred in determining that constitutionally relevant mitigation evidence, for the purpose of reviewing a Texas capital prisoner'sPenry claim, is limited to evidence showing that a defendant had "a uniquely severe permanent handicap" and that the criminal act was attributable to this condition, i.e., a "nexus" requirement. Id. at 283. The Supreme Court found no basis for the Fifth Circuit's limited definition of relevant evidence and reaffirmed that, for purposes of mitigation, evidence is relevant if it "tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value." Id. at 284 (quoting McKoy v. North Carolina, 494 U.S. 433, 440-41 (1990)). Thus, Tennard is not a significant change in the law. Because the Court finds there are no remedies presently available to Petitioner in state court, Claim 16 is technically exhausted but procedurally defaulted.Coleman, 501 U.S. at 732, 735 n. 1.

As cause for the default, Petitioner asserts appellate IAC. Before ineffectiveness may be used to establish cause for a procedural default, it must have been presented to the state court as an independent claim. See Edwards, 529 U.S. at 451-53 ("ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted"); Murray, 477 U.S. at 489-90 ("the exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default."). Petitioner asserts that Respondents have conceded exhaustion of his appellate IAC claims, but the Court disagrees. (Dkt. 37 at 133.) As discussed with respect to Claim 5, Respondents conceded only that Petitioner properly exhausted a claim of appellate IAC based on counsel's failure to raise Claim 4 on appeal. A review of Petitioner's PCR petition and subsequent petition for review reveal no assertion of appellate IAC for failing to raise Claim 16. Because Petitioner is now precluded by Rules 32.2(a)(3) and 32.4 from presenting this IAC claim in state court, Petitioner cannot establish appellate IAC as cause for the default of Claim 16.

Petitioner has failed to establish cause for the default of this claim and does not argue that a fundamental miscarriage of justice will occur if the claim is not decided on the merits. Accordingly, Claim 16 is procedurally barred and will be dismissed with prejudice.

Claim 18

Petitioner alleges that execution by the State after an extended period of incarceration 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. 24 at 365.) Petitioner concedes he did not present this claim to the state courts but argues it could not be raised in state court because a sufficient amount of time had not passed. (Id.) Alternatively, he requests a stay and suggests that state court relief may still available (although he does not articulate an applicable exception to preclusion under Arizona law). (Dkt. 37 at 141.) Respondents argue that this claim was never presented in state court and is now barred. (Dkt. 32 at 93.)

Regardless of whether Petitioner could overcome the procedural default of this claim, the Court will deny it as meritless. See 28 U.S.C. § 2254(b)(2); Rhines, 125 S. Ct. at 1535. 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, 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 Supreme Court has never held that prolonged incarceration violates the Eighth Amendment, Petitioner cannot establish a right to federal habeas relief under 28 U.S.C. § 2254(d). See Allen v. Ornoski, 435 F.3d 946, 958-60 (9th Cir. 2006). Therefore, habeas relief on Claim 18 will be denied.

Claim 20

Petitioner alleges that Arizona's lethal injection procedures constitute cruel and unusual punishment in violation of his rights under the Eighth Amendment. (Dkt. 24 at 381.) He argues in the alternative that this claim was exhausted as part of the Arizona Supreme Court's independent review of the death sentence (id.), and that he was not required to present the claim in state court because it was futile to do so in light of the Arizona Supreme Court's consistent rejection of similar claims (dkt. 37 at 147). If these arguments fail, Petitioner requests a stay and asserts that state court relief is still available under the "newly-discovered evidence" exception to preclusion under Arizona's Rule 32.1(e). (Dkt. 37 at 148.) Respondents argue that this claim was never presented in state court and is now barred. (Dkt. 32 at 93.)

The Court summarily rejects Petitioner's assertion that the state supreme court's independent sentencing review exhausted Claim 20. A challenge to a method of execution is not the type of claim that was necessarily considered by the Arizona Supreme Court when it independently reviewed the propriety of Petitioner's sentence. See Brewer, 170 Ariz. at 494, 826 P.2d at 791. Similarly, the Court rejects Petitioner's claim that he was excused from raising Claim 20 in state court because it was futile to do so. See Roberts v. Arave, 847 F.2d 528, 530 (9th Cir. 1988) ("[T]he apparent futility of presenting claims to state courts does not constitute cause for procedural default."). Finally, the Court concludes that Petitioner has no available state remedies for this claim.

As already set forth regarding Claim 14, before a claim of newly-discovered evidence will be considered in a successive PCR petition, it must be shown that the evidence supplies newly-discovered material facts and that the petitioner exercised due diligence to secure it. Ariz. R. Crim. P. 32.1(e). Petitioner asserts that he has "newly-discovered" evidence to support his claim that did not exist at the time of his trial "because the scientific investigations supporting this evidence had not then been completed." (Dkt. 37 at 148.) This "evidence" consists of several affidavits submitted in the matter of Texas v. Flores, No. 877994A, in 2003, and an article published in 2005. (Dkt. 46, Exs. 32-35.) However, Arizona's Rule 32.1(e) "contemplates facts in existence at the original trial or sentence which were not adduced" and cannot be used to relieve a prisoner from the consequences of a sentence "because of facts arising after the judgment of conviction and sentencing." State v. Guthrie, 111 Ariz. 471, 473, 532 P.2d 862, 864 (1975) (holding that evidence of post-judgment rehabilitation not a "newly-discovered fact" within the meaning of Rule 32.1(e)). In addition, Petitioner acknowledges that evidence "has existed for at least fifty years" that the drugs used in lethal injections pose a risk of unnecessary pain to persons being executed. (Dkt. 24 at 382-83.) Consequently, Petitioner cannot show diligence for not investigating the facts underlying this claim and presenting it in state court either at trial or in his first PCR proceeding. Indeed, Petitioner references autopsy reports of prisoners executed in Arizona in 1995 (prior to Petitioner's trial) and in 2000 (prior to Petitioner's first PCR petition), which bolsters this Court's determination that Petitioner would be found precluded if he sought to present this claim in state court now. (Id. at 400.) Because the Court finds there are no remedies presently available to Petitioner in state court, Claim 20 is technically exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n. 1.

Other than a reference to futility, which the Court rejects, Petitioner does not assert cause and prejudice for the default or argue that a fundamental miscarriage of justice will occur if this claim is not decided on the merits. Accordingly, Claim 20 is procedurally barred and will be dismissed with prejudice.

Summary of Procedural Status Findings

Claims 1 (in part), 2, 3 (in part), 4, 5 (in part), 6 and 7 are properly before this Court for review. The Fifth Amendment Due Process aspects of every claim and the Eighth Amendment aspects of Claims 1-6 and 14 will be dismissed as not cognizable. Claims 5 (in part) and 18 will be dismissed on the merits. Claims 3 (in part), 5 (in part), 14, 15, 16 and 20 will be dismissed as procedurally barred, and Claim 1 (in part) will be dismissed as not cognizable.

LEGAL STANDARD FOR EVIDENTIARY HEARING, EXPANSION OF THE RECORD AND DISCOVERY

Evidentiary Hearing

The decision whether to grant an evidentiary hearing when there are material facts in dispute 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 retroactive 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 constitutional 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 evidentiary 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 factual development when a petitioner diligently attempts to develop the factual 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 for a district court in evaluating 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 lacked diligence because he was on notice of possibly material evidence and conducted only a cursory investigation); Alley v. Bell, 307 F.3d 380, 390-91 (6th Cir. 2002) (lack of diligence because petitioner knew of and raised claims of judicial bias and jury irregularities in state court, but failed to investigate 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 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 obtained without court order and with minimal expense); see also Koste v. Dormire, 345 F.3d 974, 985-86 (8th Cir. 2003) (lack of diligence despite hearing request because petitioner 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, 124 S. Ct. 2070 (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 lack of diligence. See Cardwell, 152 F.3d at 338.

In sum, if this Court determines that a petitioner has not been diligent in establishing the factual basis for his claims in state court, then the Court may not conduct a hearing unless the petitioner satisfies one of § 2254(e)(2)'s narrow exceptions.

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 determination 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 strictures 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 Petitioner 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 other 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 ("Habeas Rules") 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 corpus is not a general form of relief for those who seek to explore their case in search of its existence"). Pursuant to Bracy, whether 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

Before assessing whether evidentiary development should be granted with respect to the remaining exhausted claims — Claims 1, 2, 3 (in part), 4, 5 (in part), 6 and 7 — the Court addresses Petitioner's request, as to numerous claims, to expand the record with declarations from a number of his trial jurors. Respondents assert that such evidence is inadmissible because it is an improper attempt to delve into the "intrinsic jury processes." (Dkt. 57 at 11.) Petitioner responds that he offers this evidence — juror declarations averring that if they had heard "certain bits of evidence," they may have voted differently — solely to demonstrate how a reasonable fact-finder would view the evidence or would have been affected by a legal error. (Dkt. 62 at 2; Dkt. 46, exs. 1-7, 15.)

It is firmly established in the common law that juror testimony is inadmissible to impeach a jury verdict. Tanner v. United States, 483 U.S. 107, 117 (1987). Exceptions to the rule are recognized only in situations in which an "extraneous influence" is alleged to have affected the jury's verdict. Id. Strong policy considerations underlie the rule:

[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.

Id. at 119-20 (quoting McDonald v. Pless, 238 U.S. 264, 267-68 (1915)).

The rule has been codified in both the Arizona Rules of Criminal Procedure and the Federal Rules of Evidence. Arizona prohibits the admission of testimony or affidavits that inquire "into the subjective motives or mental processes which led a juror to assent or dissent from the verdict." Ariz. R. Crim. P. 24.1(d). The federal rules likewise prohibit testimony "as to any matter or statement occurring during the course of the jury's deliberations or the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict." Fed.R.Evid. 606(b).

It is clear from both the common law and state and federal rules that the juror evidence Petitioner wishes to proffer in support of his habeas claims is improper. The Court summarily rejects Petitioner's specious assertion that the proffered declarations, in which jurors expressly discuss the effect on their deliberative process of arguments and evidence advanced by Petitioner's habeas counsel, constitute "extraneous" evidence and are thus permissible under Rule 606(b)'s exception for "extraneous prejudicial information that was improperly brought to the jury's attention." Id. Scores of cases and the plain language of the rule limit the exception to evidence of an extraneous influence on a jury. E.g., Tanner, 483 U.S. at 117 (listing cases).

Finally, the Court rejects Petitioner's assertion that juror testimony is necessary to establish prejudice for his IAC and jury instruction claims. (Dkt. 62 at 2.) The legal standard governing resolution of these claims requires the Court to determine whether there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different, Strickland v. Washington, 466 U.S. 668, 694 (1984), and whether there is a reasonable likelihood that the jury misapplied the challenged instruction, Estelle v. McGuire, 502 U.S. 62, 72 (1991). These are objective, not subjective, standards; therefore, views of the jurors in Petitioner's case are irrelevant to resolution of his claims.See, e.g., Farmers Coop. Elev. Ass'n v. Strand, 382 F.2d 224, 230 (8th Cir. 1967) (prohibiting affidavit of juror to show misinterpretation of court's instructions). Moreover, consideration of such evidence for the purpose of assessing prejudice would provide encouragement to habeas petitioners to harass jurors about their decision-making process, in contravention of the policy concerns underlying the common law rule regarding post-verdict juror testimony. Therefore, the Court will not consider the proffered juror testimony to assess prejudice from any alleged trial or counsel errors and cautions counsel that such inquiries are improper.

Claim 1

In support of his challenge to the constitutionality of the premeditation jury instruction, Petitioner seeks discovery, expansion of the record and an evidentiary hearing to establish prejudice. (Dkt. 46 at 27.) Specifically, Petitioner seeks permission to depose trial counsel and the jurors in his case, to expand the record to include numerous declarations from these individuals and to call them as witnesses at an evidentiary hearing. (Id. at 27-35.) Respondents argue that evidentiary development is unwarranted because Claim 1 presents a purely legal issue. (Dkt. 57 at 14.) The Court agrees.

At issue in Claim 1 is the constitutionality of a jury instruction. Resolution of this claim turns on whether the instruction "so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 72. In assessing the instruction, this Court must consider it "in the context of the instructions as a whole and the trial record" and determine "`whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Id. (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). Because Claim 1 presents a purely legal question that is reviewed solely on the trial record, evidentiary development is unnecessary. See Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992) (stating that no evidentiary hearing is required if "there are no disputed facts and the claim presents a purely legal question"). Therefore, Petitioner's motions for discovery, expansion of the record, and an evidentiary hearing on Claim 1 will be denied.

Claim 2

In support of his claim that counsel rendered ineffective assistance by utilizing James Jarrett as an expert crime scene reconstructionist, Petitioner seeks to depose Jarrett, trial counsel, the mental health experts who participated in his defense, a crime scene reconstructionist who has reviewed Jarrett's work, and the trial jurors. (Dkt. 46 at 56.) Petitioner also seeks to expand the record with declarations from these individuals as well as from his habeas investigator and trial defense team coordinator, and to have an evidentiary hearing. (Id. at 41-55.)

Respondents argue that evidentiary development is unwarranted because Petitioner did not diligently attempt to develop this claim in state court and the evidence Petitioner seeks to develop is irrelevant.⁹ (Dkt. 57 at 14-15.) With respect to diligence, Petitioner contends he made a prima facie case for an evidentiary hearing in state court by presenting a colorable IAC claim and was therefore diligent in developing the facts in state court. (Dkt. 62 at 4.) He argues that the failure to develop Claim 2 is attributable to the State because the PCR court did not hold a hearing and "afforded him neither the means nor the opportunity to investigate his claims before filing his post-conviction petition." (Id.) The Court disagrees.

9 As already stated, the Court will not consider the proffered juror declarations to establish Strickland's prejudice prong. In addition, the Court finds that opinions of trial counsel's performance from the mental health experts who participated in Petitioner's defense is wholly irrelevant to resolution of this claim.

Following her appointment in November 2000, PCR counsel sought an extension to file the petition on the ground that she "must speak with trial counsel." (PCR-ROA doc. 12 at 1.) Counsel also sought the appointment of an investigator to assist in gathering trial counsel's files. (PCR-ROA doc. 14 at 2.) The Court's order authorizing appointment of an investigator does not set any limitations on the investigator's time, stating only that he would be compensated at the standard county rate. (PCR-ROA doc. 16.) Subsequently, PCR counsel sought a court order to compel the Coconino County Public Defender to provide Petitioner's client file. (PCR-ROA doc. 17.) The motion stated that the investigator had contacted trial counsel, but that counsel had refused to allow unfettered access to the file. (Id. at 2.) PCR counsel ultimately received the file on July 27, 2001, and filed the petition on December 7, 2001, after requesting additional continuances to complete review of the file and conduct research and investigation. (PCR-ROA docs. 19 21.)

In his PCR petition, Petitioner argued that counsel performed deficiently by allowing Jarrett to personally interview Petitioner, calling Jarrett as a witness during trial, and being unfamiliar with the law regarding the permissible scope of expert testimony. (PCR-ROA doc. 29 at 28-35.) He asserted that counsel's actions prejudiced him because it enabled the prosecution, on cross-examination, to elicit evidence of premeditation. (Id. at 35.) In support of the claim, Petitioner appended copies of Jarrett's interview notes with Petitioner (which had been disclosed to the prosecution prior to trial), a transcript of the prosecution's interview of Jarrett, relevant excerpts from the trial transcripts and two affidavits from criminal defense attorneys who opined that counsel performed deficiently. (PCR-ROA doc. 23, exs. F, R, S, T BB.) However, the PCR petition did not contain a declaration from trial counsel or a declaration from PCR counsel or her investigator either detailing an interview with trial counsel or stating he refused to be interviewed. At the conclusion of his petition, Petitioner requested an evidentiary hearing. (PCR-ROA doc. 29 at 41.)

In this Court, Petitioner seeks to develop facts to show that trial counsel did not properly research Jarrett's background, was aware Jarrett's testimony would provide the prosecution with damaging evidence, failed to recognize the dangers of having Jarrett interview Petitioner, and failed to properly prepare Jarrett as a witness.¹⁰ (Dkt. 46 at 37.) He proposes to develop this evidence through testimony of trial counsel, the defense team coordinator, Jarrett, and a recently-retained crime scene reconstructionist. However, there is no indication that Petitioner sought to develop this aspect of his claim in state court, despite having the means and opportunity to do so.

10 To the extent Petitioner seeks evidentiary development to establish prejudice from counsel's use of Jarrett as a witness, the Court finds that such development is unnecessary because this issue may be resolved solely by reference to the state court record.

The first element of an IAC claim requires an examination of counsel's performance and the rationale underlying counsel's decisions. Based solely on this element, it should have been apparent to PCR counsel that the factual premise of this claim required, at a minimum, determining why counsel hired Jarrett, allowed him to interview Petitioner, and called him as a witness during trial. Inexplicably, although PCR counsel recognized the need to talk to trial counsel and had the assistance of an investigator, the record does not reflect that PCR counsel made any effort to develop the facts relating to trial counsel's performance, which he now seeks to develop in these proceedings. Similarly, PCR counsel did not seek the appointment of a crime scene reconstructionist to review Jarrett's work.¹¹ Cf. Landrigan, 2006 WL 549027, at *2 (finding no lack of diligence where state court denied petitioner's request for post-conviction appointment of expert). The test for determining "diligence" is whether 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. The Court concludes that he did not.See Dowthitt, 230 F.3d at 758 (lack of diligence, despite hearing request, based on failure to present easily obtained evidence).

11 Petitioner proffers a declaration from PCR counsel that states it "was standard practice in Arizona on post-conviction, and my standard practice also, not to request funding for experts and factual investigators until after the request for an evidentiary had been granted." (Dkt. 46, ex. 17 at 2.) The Court finds this assertion unpersuasive to excuse counsel's failure to develop evidence in light of Rule 32.5's requirement that evidence such as affidavits and records be attached to a PCR petition to support its factual allegations and the fact that counsel requested and was authorized the services of an investigator. Ariz. R. Crim. P. 32.5.

Petitioner's lack of diligence in state court prohibits this Court from holding a hearing or expanding the record with respect to this claim, Cooper-Smith, 397 F.3d at 1241, and Petitioner has not attempted to satisfy the requirements of §§ 2254(e)(2)(A) (B). Because the Court is barred from holding an evidentiary hearing or expanding the record as to this claim, any evidence developed through discovery could not be considered by the Court. Thus, the Court finds there is no good cause for discovery. See 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, at *2 (S.D. Ohio Sept. 13, 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 petitioner first satisfies § 2254(e)(2)). Therefore, Petitioner's request for evidentiary development of Claim 2 will be denied.

Claim 3

In support of his claim that the prosecutor engaged in misconduct, that trial counsel rendered ineffective assistance for not objecting to such misconduct, and that appellate counsel rendered ineffective assistance for not raising the issue on appeal, Petitioner seeks to depose trial counsel, appellate counsel, and the trial jurors. (Dkt. 46 at 69.) Petitioner also seeks to expand the record with declarations from these individuals and requests an evidentiary hearing. (Id. at 58-70.) Respondents argue that evidentiary development is unwarranted because Petitioner did not diligently attempt to develop this evidence in state court and Claim 3 can be resolved by reference to the state court record. (Dkt. 57 at 16-17.)

Petitioner argues that the requested evidentiary development from jurors is necessary to show that a reasonable fact-finder would have been affected by the prosecutor's misconduct and that the alleged misconduct was not harmless. (Dkt. 46 at 58-59.) As already stated, the Court may not consider evidence from the jurors in this case to assess prejudice from any alleged constitutional violations. Accordingly, Petitioner's request to depose jurors, expand the record with juror declarations and call jurors as witnesses at an evidentiary hearing will be denied.

For the requests relating to trial and appellate counsel, Petitioner asserts evidentiary development is necessary to establish that each counsel performed deficiently. As discussed with regard to Claim 2, Petitioner had both the means and opportunity to interview trial counsel. In addition, appellate counsel, in his role as Coconino County Public Defender and trial counsel's supervisor, spoke to PCR counsel's investigator about Petitioner's client file and ultimately provided the file to PCR counsel. There is nothing in the record to indicate that either attorney refused to be interviewed or cooperate with PCR counsel's investigation of Petitioner's IAC claims, and the Court finds that Petitioner could have "easily obtained their affidavits." Dowthitt, 230 F.3d at 758. In addition, under Arizona law, appellate counsel is "not ineffective for selecting some issues and rejecting others."State v. Herrera, 183 Ariz. 642, 647, 905 P.2d 1377, 1382 (Ariz.App. 1995). Thus, to succeed on an appellate IAC claim, it was incumbent upon PCR counsel to assert something more than the fact that counsel failed to raise additional issues on appeal; she had to show that appellate counsel's failure to assert the additional issues was constitutionally deficient. Id. (holding appellate IAC claim not colorable in the absence of evidence that failure to raise additional claims fell below professional norms.) At a minimum, PCR counsel should have investigated why appellate counsel did not raise prosecutorial misconduct issues on appeal.

Petitioner's lack of diligence in state court prohibits this Court from holding a hearing or expanding the record with respect to this claim, Cooper-Smith, 397 F.3d at 1241, and Petitioner has not attempted to satisfy the requirements of §§ 2254(e)(2)(A) (B). Because the Court is barred from holding an evidentiary hearing or expanding the record as to this claim, any evidence developed through discovery could not be considered by the Court. Thus, the Court finds there is no good cause for discovery. Petitioner's motions for evidentiary development of Claim 3 will be denied.

Claim 4

In support of his claim that counsel rendered ineffective assistance for failing to interview the state's rebuttal expert witness prior to trial and failing to object to late notice of this witness, Petitioner seeks to develop facts to show that the untimely disclosure left counsel unprepared, that the prosecutor was not truthful in her explanation of the untimely disclosure, that the defense experts were not asked by counsel to sit through the expert rebuttal testimony to assist the defense, that appellate counsel did not raise this claim on appeal, and that Petitioner suffered prejudice. (Dkt. 46 at 71.) Specifically, he seeks to depose his trial counsel, defense team coordinator, appellate counsel, defense experts, and trial jurors; to expand the record with declarations from these individuals; and to have an evidentiary hearing. (Id. at 76-83.) Respondents argue that evidentiary development is unwarranted because Petitioner did not diligently attempt to develop this evidence in state court and the claim can be resolved on the existing record. (Dkt. 57 at 18.) The Court agrees.

First, the Court may not consider the proffered evidence from trial jurors in considering the effect of alleged constitutional violations on the verdict. Tanner, 483 U.S. at 117. Second, the Court concludes that the issue of prejudice from trial or appellate counsel's failures with regard to late disclosure of the State's expert rebuttal witness is capable of resolution from the existing court record. Third, Petitioner did not act diligently in state court to develop the deficient performance prong of his IAC claims. As discussed supra in Claims 2 and 3, Petitioner had the means and opportunity to interview trial and appellate counsel as well as his defense experts and apparently failed to do so. Petitioner has not attempted to satisfy the requirements of §§ 2254(e)(2)(A) (B); therefore, his requests for expansion of the record and an evidentiary hearing will be denied. In addition, the Court concludes that Petitioner has not demonstrated good cause for discovery. See Boyko, 259 F.3d at 792.

Claim 5

In support of this appellate IAC claim, Petitioner seeks discovery, expansion of the record and an evidentiary hearing to develop facts to show the circumstances surrounding preparation of the direct appeal and appellate counsel's failure to raise meritorious issues. (Dkt. 46 at 84.) Specifically, he seeks to depose trial counsel, appellate counsel, and the trial jurors; to expand the record with declarations from these individuals; and an evidentiary hearing. (Id. at 86-90.) The Court may not consider the proffered evidence from trial jurors in considering the effect of alleged constitutional violations on the verdict.Tanner, 483 U.S. at 117. In addition, in light of PCR counsel's failure to investigate and pursue the basic facts necessary to present an appellate IAC claim in state court, as set forth above with regard to Claim 3, the Court finds that Petitioner was not diligent in developing this claim. See Dowthitt, 230 F.3d at 758. Petitioner has not attempted to satisfy the requirements of §§ 2254(e)(2)(A) (B). Therefore, Petitioner's request for an evidentiary hearing and to expand the record will be denied. In addition, the Court finds no good cause for the requested discovery. See Boyko, 259 F.3d at 792.

Claim 6

In support of his claim that the trial court erred in admitting his statements to the police, Petitioner seeks permission to subpoena the personnel files of the interviewing detective, to depose the jurors in his case, to expand the record to include numerous declarations from jurors, and to have an evidentiary hearing. (Dkt. 46 at 91-98.) Respondents argue that evidentiary development is unwarranted because Claim 6 is a record-based claim. (Dkt. 57 at 14.) The Court agrees.

Petitioner raised this claim on direct appeal, and the Arizona Supreme Court upheld the trial court's ruling. Smith, 193 Ariz. at 456-60, 974 P.2d at 435-39. It is self-evident that, when analyzing a claim of trial court error based on the admission of evidence, a reviewing court assesses only the evidence that was before the trial court; thus, this is strictly a record-based claim. The record-based nature of this claim is bolstered by the state supreme court's treatment of the claim on direct appeal, which looked only at the state court record to resolve the issue. Because this claim must be decided based on the state court record, evidentiary development is not warranted.

Additionally, Petitioner could have attempted to develop additional supporting evidence during his PCR, but did not raise this claim. Because Petitioner did not make a reasonable attempt to develop the factual basis of this claim in state court and does not allege that he can satisfy the requirements of §§ 2254(e)(2)(A) (B), this Court is barred from granting an evidentiary hearing or expanding the record with respect to the merits of Claim 6. See Williams, 529 U.S. at 435. Finally, in light of the fact that this claim is premised on the already-existing state court record, Petitioner fails to satisfy the preliminary requirement for an evidentiary hearing — a material factual dispute. See Townsend, 372 U.S. at 312-13. Rather, Petitioner merely seeks to introduce additional evidence that he never attempted to develop in state court. Petitioner's motions for evidentiary development of Claim 6 will be denied.

Claim 7

In support of his claim that the trial court erred in finding the murder was committed for pecuniary gain, A.R.S. § 13-703(F)(5), Petitioner seeks to expand the record with declarations from jurors and requests an evidentiary hearing and permission to depose the jurors. (Dkt. 46 at 99-104.) As discussed above, common law prohibits this Court from considering the jurors' opinions of the effect on their verdict of evidence and arguments developed after trial. In addition, federal habeas review of this claim is limited to determining whether the state court's finding was so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation. Lewis v. Jeffers, 497 U.S. 764, 780 (1990). This is necessarily a record-based claim, for which the admission of additional evidence is unwarranted. Consequently, Petitioner's motions for evidentiary development of Claim 7 will be denied.

Based on the foregoing,

IT IS ORDERED that the following claims are DISMISSED WITH PREJUDICE: (a) Claims 3 (in part), 5 (in part), 14, 15, 16 and 20 based on a procedural bar; (b) Claim 1 (in part), the Fifth Amendment Due Process aspects of every claim and the Eighth Amendment aspects of Claims 1-6 and 14 as not cognizable; and (c) Claims 5 (in part) and 18 on the merits as a matter of law.

IT IS FURTHER ORDERED that Petitioner's Motion for Discovery, to Expand the Record and for Evidentiary Hearing (Dkt. 46) is DENIED. IT IS FURTHER ORDERED that if, pursuant to LRCiv 7.2(g), Petitioner or Respondents file a Motion for Reconsideration of this Order, such motion shall be filed within fifteen (15) days of the filing 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.