Robert Murray v. Dora Schriro

Filing

FILED OPINION (JOHNNIE B. RAWLINSON, JAY S. BYBEE and SANDRA S. IKUTA) AFFIRMED., Judge: JSB Authoring, FILED AND ENTERED JUDGMENT. [9017453]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT WAYNE MURRAY,
Petitioner-Appellant,

No. 08-99008

v.

D.C. No.
2:99-CV-01812-DGC

DORA SCHRIRO, Warden,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted
September 13, 2012—Las Vegas, Nevada
Filed March 17, 2014
Before: Johnnie B. Rawlinson, Jay S. Bybee,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Bybee

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SUMMARY*

Habeas Corpus/Death Penalty
The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a
conviction and capital sentence for murder.
The panel first held that the state court’s denial of
petitioner’s claim—that the prosecutor violated Batson v.
Kentucky, 476 U.S. 79 (1986), by using peremptory
challenges to strike two Hispanic potential jurors—was not
based on an unreasonable determination of the facts.
The panel next held that the state court’s denial of
petitioner’s claim of ineffective assistance of counsel
regarding the investigation and presentation of mitigation
evidence of petitioner’s troubled childhood and impairments
was not based on an unreasonable determination of the facts
or an unreasonable application of clearly established federal
law.
Finally, the panel declined to grant a motion to expand the
certificate of appealability because the district court properly
found that allowing petitioner to bring numerous proposed
claims in an amended habeas petition would be futile.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Jennifer Y. Garcia (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; and Jaleh
Najafi, Assistant Federal Public Defender, Phoenix, Arizona,
for Petitioner-Appellant.
Jeffrey A. Zick (argued), Assistant Attorney General; Terry
Goddard, Attorney General; and Kent Cattani, Chief Counsel,
Arizona Attorney General’s Office, Phoenix, Arizona, for
Respondents-Appellees.

OPINION
BYBEE, Circuit Judge:
Robert Wayne Murray (“Murray”) was convicted in
Arizona of two counts of first-degree murder and sentenced
to death. The Arizona Supreme Court affirmed his
conviction, and the United States Supreme Court denied
Murray’s petition for certiorari. Arizona courts denied
Murray’s request for post-conviction relief. In this habeas
suit brought under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104–132, 110
Stat. 1214, we address three issues: (1) whether the Arizona
state court’s denial of Murray’s Batson motion was “contrary
to, or involved an unreasonable application of, clearly
established Federal law” or was “based on an unreasonable
determination of the facts,” 28 U.S.C. § 2254(d); (2) whether
the state court’s denial of Murray’s ineffective assistance of
counsel claim was “contrary to, or involved an unreasonable
application of, clearly established Federal law” or was “based
on an unreasonable determination of the facts,” id.; and

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(3) whether Murray “made a substantial showing of the denial
of a constitutional right,” 28 U.S.C. § 2253(c)(2), when the
district court denied his “Motion for Leave to File a Second
Amended Motion for Writ of Habeas Corpus,” and if so,
whether the district court abused its discretion in denying the
motion. The district court for the District of Arizona denied
Murray’s petition for writ of habeas corpus.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253, and we affirm.
I.

FACTS AND PROCEDURAL HISTORY

A. Facts
1. Background
Murray’s responsibility for the murders is not questioned.
On May 14, 1991, LaVern Raduenz stopped at Grasshopper
Junction, located near Kingman, Arizona, for coffee.
Raduenz was an acquaintance of Dean Morrison and
Jacqueline Appelhans, who lived at Grasshopper Junction and
ran the store/restaurant situated there. Approaching the
restaurant, Raduenz noticed that there was money lying on
the ground outside, the restaurant door was open, and the cash
register was displaced from its usual position. Raduenz then
walked over to Morrison’s house and discovered that the door
to the house was also open, revealing Morrison’s and
Appelhans’s bodies, clad in bathrobes, lying face down in the
living room. Morrison had been shot twice with a .38 caliber
pistol, in the neck and temple, and his skull had been
shattered by a shotgun blast at close range. Appelhans had
been shot at least twice in the back of the neck with a .22

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caliber weapon and two .38 caliber slugs were removed from
her skull.
Morrison’s house had been ransacked. Drawers were
open, items littered about, and a cushion cover was missing
from the couch. In the store, the cash-register drawer had
been removed and a roll of coins and loose change were
strewn about the kitchen floor and throughout the courtyard.
Although all of the facts pointed to robbery as the underlying
motivation, $172 was found lying on a desk chair and
Morrison’s wallet, containing $800, was undisturbed in his
pants’ pocket. In the store, packs of Marlboro cigarettes were
left in paper bags and the gasoline register was on. Outside
on the store’s patio were Morrison’s glasses, a flashlight, and
a set of keys. Law enforcement officers also discovered guns,
bullets, and shell casings at the crime scene.
A Mohave County Sheriff’s Department detective
analyzed the tracks—footprints—at the crime scene. Besides
those created by Raduenz and law enforcement officers, the
detective identified four sets of tracks. Two sets of tracks
were attributed to the victims, while the other two were
determined to have been made by a pair of tennis shoes and
a pair of western-style boots. Photographs of the tracks were
taken, and some sketches made. Moreover, the detective
determined that the tracks indicated that Morrison had
resisted his attacker. Near some of the tracks attributed to
Morrison and his assailant, law enforcement officers also
found tire tracks attributed to a Grasshopper Junction tow
truck, owned by Morrison, that was nowhere to be found at
the crime scene.
Elsewhere, on the same morning, an Arizona Department
of Public Safety officer happened upon a white 1988 Ford

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Tempo sedan bearing Alabama license plates. The officer’s
suspicions were aroused by the vehicle’s behavior, leading
the officer to run an inquiry on the vehicle’s license plate
number. The officer learned that the vehicle and its two
occupants, Murray and his brother Roger Wayne Murray,
were wanted in Alabama, suspected of having been involved
in an assault and robbery and potentially armed and
dangerous. As the officer attempted to pull over the vehicle,
a high-speed chase ensued. The vehicle eventually left the
highway, running a manned and armed roadblock, and only
stopping when it left the road and came to an impassable
wash.
The driver, Murray, threw from the vehicle a .38 caliber
revolver containing four live bullets. A subsequent search of
Murray’s person yielded two spent shotgun shells and keys
that were later determined to fit a 1991 Chevrolet pickup
located on Morrison’s property. His passenger, Roger Wayne
Murray, threw a loaded .25 caliber semi-automatic pistol
from the vehicle. The shell casings found at the crime scene
and the casings recovered from Murray’s pocket were
determined to have been fired by the guns found in the
Murray brothers’ possession. The men were wearing tennis
shoes and boots consistent with the tracks identified at
Grasshopper Junction.
A subsequent vehicle inventory uncovered: a loaded
twelve-gauge shotgun and live shells; a checkered couch
cushion, matching the pattern of the couch in Morrison’s
house, and containing rolled coins stamped “Dean
Enterprises, Grasshopper Junction, Kingman, Arizona,
86401”; a blue pillowcase containing approximately $1400 in
rolled coins and $3300 in cash; gloves; a receipt from the
Holiday House Motel in Kingman, Arizona, dated May 12,

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1991 (the Murray brothers had listed a 1988 Ford on the hotel
registration card and had checked out on May 13, 1991); and
a road atlas with the locations of two rural shops circled,
including Grasshopper Junction. A scanner and connecting
knob, fitting the empty bracket of the Grasshopper Junction
tow truck that had left the tire tracks found at the crime
scene—which was later discovered abandoned on westbound
I-40—were also found in the vehicle.
Human blood and tissue was found on the Murray
brothers’ clothing, as well as on the cushion cover recovered
from their vehicle. Blood tests indicated that the blood on
Roger Wayne Murray’s pants could have come from the
victims or Murray; the blood on Murray’s shirt could have
come from the victims, but not from Roger Wayne Murray;
and the blood on the cushion could have come from
Appelhans, but not Morrison or either of the Murray brothers.
2. Jury Selection and Trial
The Murrays were arrested and indicted in Mohave
County, Arizona, for the first-degree murders of Morrison
and Appelhans, and the armed robbery of Morrison. During
jury selection, after the trial court excused potential jurors for
cause, only two Hispanic venire members remained: potential
jurors Pethers and Alvardo. The prosecutor then used
peremptory challenges to dismiss the two remaining Hispanic
potential jurors. Murray’s trial counsel objected to the
prosecutor’s use of the peremptory challenges and requested
that the trial court conduct an inquiry under Batson v.
Kentucky, 476 U.S. 79 (1986).

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In light of the objection, the trial judge asked the
prosecutor to respond. Regarding potential juror Pethers, the
following colloquy ensued:
PROSECUTOR: Your Honor, first, as to Ms.
Pethers, I don’t believe that she is a Hispanic.
I don’t recall seeing that on her jury
questionnaire, and I don’t recall if she
appeared to talk Hispanic to me. So, I am not
sure that that’s a showing—
THE COURT: I don’t have the questionnaire
in front of me.
DEFENSE: The questionnaire did indicate
that she’s Hispanic, Your Honor. I believe
her maiden name was Garcia, but her first
name is Christina.
THE COURT: I remember she said her
mother’s name was Garcia.
PROSECUTOR: Right. I am not sure that’s
Hispanic, Garcia, as opposed to Spanish, the
amount I know about her mother from the
prosecutor. I could be wrong, I don’t know.
THE COURT: Well, of course, I can look at
the questionnaires. I will have to take a recess
to do that. But, let’s assume for the time
being that she is Hispanic and the defense is
correct.

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PROSECUTOR: Your Honor, the State
recently did a major drug investigation of her
mother and her mother’s brother . . . . It’s a
very big case. Both of those defendants went
to jail for a time. I’m not sure of the status of
Mrs. Garcia. From what Mrs. Pethers said,
the charge was dismissed. I believe there’s
been some sort of negotiated deal, but I am
not positive about that. But, I know both
those people were heavy into drugs. Both of
the people around them were suspected of
being in drugs. There’s a forfeiture action
proceeding against Garcia, Mallon. This
being the daughter, I do not believe that
she—I don’t want her on the jury for those
reasons, possible bias.
Regarding potential juror Alvardo, the prosecutor stated:
PROSECUTOR: Mr. Alvardo is Hispanic, and
it was a close call on that strike. What I went
on is, as Mr. Alvardo told the Court, he knows
me, I know him. Not well. I’m going
basically on my personal knowledge of Mr.
Alvardo five or six years ago. I was dating a
lady who was a nurse, going to various social
functions, parties, whatnot. I met Mr.
Alvardo probably a half a dozen times
anyway, and I had discussions with him. The
social functions at these parties, my
recollection of Mr. Alvardo is he’s a very,
very nice person. He is too nice. You
couldn’t get him to disagree with you. He
didn’t want to hurt anybody. He is just

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indecisive, is my recollection of him. My
strike on him is solely going back to my
personal knowledge of meeting him numerous
times four or six years ago.

The trial court denied Murray’s Batson objections. The
trial judge stated that based on his “own opinions about those
particular jurors[,] . . . the reasons given by the State are
sufficient . . . [and] consistent with my own assessments of
those particular jurors.” Subsequently, a jury was empaneled
and the joint trial of the Murray brothers began.
At the conclusion of their joint jury trial, Murray and his
brother were both found guilty of the first-degree murders of
Morrison and Appelhans, and the armed robbery of Morrison.
3. Sentencing
Prior to Murray’s sentencing hearing, the Mohave County
Probation Department conducted a pre-sentence investigation.
As part of that investigation, Murray was interviewed to
prepare a social history. In that interview, Murray spoke of
a childhood marred by an abusive father and his own general
failure in all activities during his youth. Murray discussed his
educational (both traditional and vocational) and employment
background.
Murray detailed his medical problems,
including “dizzy spells and headaches,” and the substance
abuse that he began to engage in during his teenage years.
Accompanying the pre-sentence investigation report was a
record of Murray’s prior criminal offenses.
In addition to the information contained in the presentence investigation report, Murray’s trial counsel, O’Neill,
prepared a Pre-Sentence Memorandum (“Memorandum”) for

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the trial judge to consider at Murray’s aggravation/mitigation
hearing. The Memorandum included attachments containing
Murray’s prison records; interviews providing information
regarding his employment history, including the interview of
a former co-worker; and correspondence and interviews with
a number of Murray’s friends, family members, and
acquaintances, detailing his personal and family background
and difficult childhood. The dates on the letters and
interviews indicate that O’Neill began investigating Murray’s
background prior to the conclusion of the trial’s guilt phase.
The Memorandum also chronicled details from Murray’s
dysfunctional childhood, such as his suffering repeated
physical abuse at the hands of his father; witnessing his
father’s involvement in myriad illegal activities; and records
showing that he was often absent from school.
At Murray’s sentencing hearing, the trial judge stated that
the Memorandum and attached documents would be taken
into consideration. The evidence actually presented at the
sentencing hearing, though, went even further. At that time,
O’Neill entered into evidence: a psychiatric evaluation of
Murray, conducted by Dr. Jack Potts; and letters from and
interviews with family members, friends, classmates, and coworkers on Murray’s behalf. Furthermore, Brenda Murray
and Ruby Bradford, Murray’s mother and aunt respectively,
testified in person. Although from the record it appears that
Angela Hall, Murray’s younger sister, was also present and
ready to testify, she did not testify at Murray’s sentencing
hearing.
Dr. Potts’ psychiatric evaluation, which was also entered
into evidence at the sentencing hearing, relied upon
information contained in: the pre-sentence investigation
report and corresponding attachments; letters written between

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the Murray brothers while incarcerated; Murray’s criminal
record from Alabama; interviews with Murray’s family
members, friends, classmates, and co-workers; police reports;
and Murray’s school records. Dr. Potts was aware of
Murray’s medical issues, such as fecal and urinary
incontinence, as well as his history of intense headaches and
seizures. Moreover, Dr. Potts’ evaluation discussed the
varied physical and psychological impacts of Murray’s
dysfunctional childhood. Considering all of these factors, Dr.
Potts concluded that Murray’s circumstances warranted a
mitigated sentence.
Based upon the evidence presented at both the trial and
sentencing hearing, the trial judge found that the state had
proven three aggravating factors beyond a reasonable doubt.
Moreover, the trial judge found that Murray had proven two
mitigating factors by a preponderance of the evidence: that
Murray was capable of rehabilitation and that Murray
suffered from a dysfunctional childhood. The trial judge
ruled that the mitigating factors were “not sufficiently
substantial to outweigh the aggravating circumstances proved
by the State and to call for leniency.” Murray was sentenced
to death.
B. Procedural History
Murray appealed his conviction and death sentence
directly to the Arizona Supreme Court. After conducting an
independent review, the Arizona Supreme Court affirmed
Murray’s conviction and death sentence, finding no
constitutional infirmity. State v. Murray, 906 P.2d 542 (Ariz.
1995) (in banc).
Murray’s subsequent motion for
reconsideration was denied. Likewise, Murray’s petition for
certiorari was denied by the United States Supreme Court.

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Murray v. Arizona, 518 U.S. 1010 (1996). Murray then filed
a petition for post-conviction relief (“PCR1”) in Arizona state
court. The state court denied the PCR1 and the Arizona
Supreme Court summarily denied review.
In light of the Supreme Court’s intervening ruling in Ring
v. Arizona, 536 U.S. 584 (2002), Murray moved to stay the
federal habeas proceedings. The district court granted a stay
limited to the sentencing-related claims and directed Murray
to pursue additional state post-conviction relief for his
potential Ring claim.
After the Arizona Supreme Court denied review, the
district court’s stay was lifted and Murray filed a “Motion for
Leave to File a Second Amended Petition for Habeas
Corpus.” Murray’s proposed Second Amended Petition
attempted to include his previously withdrawn claims, as well
as one new claim, in his federal habeas petition. The district
court denied Murray’s motion to amend. The district court
denied Murray’s First Amended Petition for Writ of Habeas
Corpus on the merits and declined to issue a certificate of
appealability. Murray filed a timely Notice of Appeal.
II.

STANDARD OF REVIEW

A. Certified Claims—Batson and Ineffective Assistance of
Counsel
We review de novo the district court’s denial of a petition
for writ of habeas corpus. Lopez v. Thompson, 202 F.3d
1110, 1116 (9th Cir. 2000) (en banc). However, because
Murray filed his federal habeas petition on October 7, 1999,
after AEDPA’s effective date, we are bound by AEDPA. See

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Valerio v. Crawford, 306 F.3d 742, 763 (9th Cir. 2002) (en
banc) (specifying April 24, 1996 as AEDPA’s effective date).
AEDPA authorizes the grant of a state prisoner’s petition
for a writ of habeas corpus when the relevant state-court
decision was (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court” or (2) “based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d).
Under AEDPA, we review the last reasoned state-court
decision. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.
2005). When a state court does not explain the reason for its
decision, we “look through” to the last state-court decision
that provides a reasoned explanation capable of review.
Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir.
2000). At times, however, no state-court decision furnishes
a basis for the state court’s underlying reasoning. In such a
circumstance, our duty under AEDPA is not absolved. See
Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011)
(presuming that a state court’s unexplained, summary denial
of the prisoner’s habeas petition constituted an adjudication
on the merits); see also Johnson v. Williams, 133 S. Ct. 1088,
1096 (2013) (applying Richter’s presumption to a state-court
decision that addressed some, but not all, of a defendant’s
federal claims). “[T]he habeas petitioner’s burden still must
be met by showing there was no reasonable basis for the state
court to deny relief.” Richter, 131 S. Ct. at 784. To assess
whether a petitioner has met this burden, we must ask “what
arguments or theories supported or . . . could have supported
. . . the state court’s decision,” and determine “whether it is
possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a

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prior decision of” the Supreme Court. Id. at 786. Thus,
“‘when the state court does not supply reasoning for its
decision,’ we are instructed to engage in an ‘independent
review of the record’ and ascertain whether the state court’s
decision was ‘objectively unreasonable.’” Walker v. Martel,
709 F.3d 925, 939 (9th Cir. 2013) (quoting Delgado v. Lewis,
223 F.3d 976, 982 (9th Cir. 2000)). “Crucially, this is not a
de novo review of the constitutional question,” id., as “‘even
a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable,’” id. (quoting Richter,
131 S. Ct. at 786.).
1. Contrary to, or an Unreasonable Application of
Clearly Established Federal Law Under § 2254(d)(1)
Clearly established Federal law “refers to the holdings, as
opposed to the dicta, of th[e Supreme] Court’s decisions as of
the time of the relevant state-court decision.” Lockyer v.
Andrade, 538 U.S. 63, 71 (2003) (quoting Williams v. Taylor,
529 U.S. 362, 412 (2000)). Obviously, a state-court decision
cannot be contrary to clearly established Federal law that was
not yet in existence.
Our precedent cannot be mistaken for clearly established
Supreme Court law. Marshall v. Rodgers, 133 S. Ct. 1446,
1450–51 (2013) (per curiam); Parker v. Matthews, 132 S. Ct.
2148, 2155 (2012) (per curiam).
Although an appellate panel may, in
accordance with its usual law-of-the-circuit
procedures, look to circuit precedent to
ascertain whether it has already held that the
particular point in issue is clearly established
by Supreme Court precedent, it may not

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canvass circuit decisions to determine whether
a particular rule of law is so widely accepted
among the Federal Circuits that it would, if
presented to this Court, be accepted as correct.

Marshall, 133 S. Ct. at 1450–51 (internal citations omitted).
“[C]ircuit precedent may [not] be used to refine or sharpen a
general principle of Supreme Court jurisprudence into a
specific legal rule that [the Supreme] Court has not
announced.” Id. at 1450. Thus, we must keep in mind that
“only the Supreme Court’s holdings are binding on the state
courts and only those holdings need be reasonably applied.”
Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003),
overruled on other grounds by Lockyer v. Andrade, 538 U.S.
63, 71 (2003).
Section 2254(d)(1) provides that a state-court decision
may be “contrary” to Supreme Court precedent in two
circumstances. First, a state-court decision is contrary to
Federal law if “the state court arrives at a conclusion opposite
to that reached by th[e Supreme] Court on a question of law,”
or “the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent
and arrives at a result opposite to [the Supreme Court].”
Williams, 529 U.S. at 405. Thus, the “contrary to” prong
requires a direct and irreconcilable conflict with Supreme
Court precedent.
Second, § 2254(d)(1) provides that a state-court decision
might offend clearly established Federal law in a manner
actionable under AEDPA where the state-court decision is an
unreasonable application of Supreme Court precedent. A
state-court decision is an “unreasonable application” of
Supreme Court precedent if “the state court identifies the

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correct governing legal rule from th[e Supreme] Court’s cases
but unreasonably applies it to the facts of the particular state
prisoner’s case,” or “the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to
a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it
should apply.” Id. at 407. It is not, however, “an
unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule that
has not been squarely established by th[e Supreme] Court.”
Richter, 131 S. Ct. at 786 (alteration omitted). Because, like
state courts, we have responsibility for direct review of
federal criminal appeals, we may have developed our own
body of constitutional law independent of the Supreme Court.
A state-court decision that we determine to be inconsistent
with our cases is not necessarily “objectively unreasonable”
and therefore an unreasonable application of clearly
established Federal law “as determined by the Supreme
Court.” Id.; see also Marshall v. Rodgers, 133 S. Ct. at
1450–51 (noting the division of authority between the state
court and the federal circuit court, expressing no view on the
merits of the underlying claim, and reversing the grant of
habeas). The deferential standard imposed under AEDPA
cloaks a state court’s determination with reasonableness, so
long as “fairminded jurists could disagree” as to whether a
claim lacks merit. Yarborough v. Alvarado, 541 U.S. 652,
664 (2004). This test is “highly deferential . . . [and]
demands that state-court decisions be given the benefit of the
doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
It is important to note, however, that under either prong
a state court’s decision does not need to cite the Supreme
Court’s cases, “indeed, [the state court] does not even [need
to be] aware[] of [the Supreme Court’s] cases, so long as

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neither the reasoning nor the result of the state-court decision
contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002) (per
curiam); see also Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
Thus, so long as the state court’s decision is not inconsistent
with Supreme Court precedent, AEDPA bars relief under
28 U.S.C. § 2254(d)(1).
Along with the significant deference AEDPA requires us
to afford state courts’ decisions, AEDPA also restricts the
scope of the evidence that we can rely on in the normal
course of discharging our responsibilities under § 2254(d)(1).
Under § 2254(d)(1), our review is “limited to the record that
was before the state court that adjudicated the claim on the
merits.” Pinholster, 131 S. Ct. at 1398. Thus, AEDPA’s
“backward-looking language requires an examination of the
state-court decision at the time it was made. It [then
logically] follows that the record under review is limited to
the record in existence at that same time, i.e., the record
before the state court.” Id.
2. Unreasonable Determination of the Facts in Light of
the Evidence Presented in the State Court Proceeding
Under §§ 2254(d)(2) and (e)(1)
AEDPA has two provisions governing the review of a
state court’s determinations of fact. Section 2254(d)(2)
states:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim . . . resulted in a

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decision that was based on an unreasonable
determination of the facts in light of the
evidence presented in the State court
proceeding.
Section 2254(e)(1), however, lends state-court determinations
of fact a presumption of correctness:
In a proceeding instituted by an application
for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State
court, a determination of a factual issue made
by a State court shall be presumed to be
correct. The applicant shall have the burden of
rebutting the presumption of correctness by
clear and convincing evidence.
Together, these two provisions govern factual challenges to
a state-court conviction on collateral review. There is some
confusion, however, in our cases over the interaction between
these two provisions.
In Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004), we
read these two provisions to apply to two different types of
challenges. First, we read § 2254(d)(2) to govern habeas
petitions “based entirely on the state record.” Id. at 999. This
we termed an “intrinsic” challenge to the state court’s
determination of fact. Id. at 999–1000. A successful intrinsic
challenge may be based on a claim that the state-court
decision is based on a “finding [that] is unsupported by
sufficient evidence”; “the process employed by the state court
[wa]s defective”; or “that no finding was made by the state
court at all,” when it was required to make a finding. Id. at

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999. An intrinsic review requires that we “be particularly
deferential to our state-court colleagues.” Id. at 1000.
We said in Taylor that when we perform an intrinsic
review, we may only hold that a state court’s decision was
based on an unreasonable determination of the facts if “we
[are] convinced that an appellate panel, applying the normal
standards of appellate review, could not reasonably conclude
that the finding is supported by the record.” Id. Accordingly,
we said that we may only hold that a state court’s factfinding
process is materially defective if we are “satisfied that any
appellate court to whom the defect is pointed out would be
unreasonable in holding that the state court’s fact-finding
process was adequate.” Id.
Second, we read § 2254(e)(1) to apply where the habeas
petitioner wishes to introduce facts outside the state court
record, “i.e., evidence presented for the first time in federal
court.” Id. This we termed, an “extrinsic” challenge to the
state court’s determination of fact. Id. Under this provision,
if a habeas petitioner fails to raise any intrinsic challenge, or
after our own intrinsic review we determine that the state
court’s decision was not based on an intrinsically
unreasonable determination of fact, then “the state court’s
findings are dressed in a presumption of correctness, which
then helps steel them against any challenge based on extrinsic
evidence, i.e., evidence presented for the first time in federal
court.” Id. Thus, we explained in Taylor, “the presumption
of correctness and the clear-and-convincing standard of proof
only come into play once the state court’s fact-findings
survive any intrinsic challenge; they do not apply to a
challenge that is governed by the deference implicit in the
‘unreasonable determination’ standard of section 2254(d)(2).”
Id. Under Taylor, §§ 2254(d)(2) and (e)(1) are read

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separately and must not be confused. See, e.g., Kesser v.
Cambra, 465 F.3d 351, 358 n.1 (9th Cir. 2006) (en banc);
Buckley v. Terhune, 397 F.3d 1149, 1154–55 (9th Cir. 2005),
affirmed on other grounds by 441 F.3d 688 (9th Cir. 2006)
(en banc).
Pinholster eliminated the relevance of “extrinsic”
challenges when we are reviewing state-court decisions under
AEDPA, however, because it held that petitioners may
introduce new evidence in federal court only for claims that
we review de novo. See Pinholster, 131 S. Ct. at 1400–01 &
nn. 7, 10; see also Stokley v. Ryan, 659 F.3d 802, 807–08 (9th
Cir. 2011). Thus Taylor’s suggestion that an “extrinsic”
challenge may occur “once the state court’s fact-findings
survive any intrinsic challenge” under § 2254(d)(2) is no
longer applicable. See Taylor, 366 F.3d at 1000. After
Pinholster, a federal habeas court may consider new evidence
only on de novo review, subject to the limitations of
§ 2254(e)(2).1 See Stokley, 659 F.3d at 808.
How we should now read § 2254(d)(2) and (e)(1) in
context of “intrinsic” challenges to state-court factual
1
If an applicant for habeas relief “has failed to develop the factual basis
of a claim in State court proceedings,” § 2254(e)(2) bars federal courts
from holding an evidentiary hearing except in two circumstances: (1) “the
claim relies on . . . a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously
unavailable”; or (2) “the claim relies on . . . a factual predicate that could
not have been previously discovered through the exercise of due
diligence.” 28 U.S.C. §§ 2254(e)(2)(A)(i), (ii). If one of these
circumstances is present, then the applicant must also show that “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.” Id. § 2254(e)(2)(B).

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findings under AEDPA presents a more complicated
question. In the years since we decided Taylor, both the
Supreme Court and we have occasionally read §§ 2254(d)(2)
and (e)(1) as though they were to be read together. That is,
we have read § 2254(d)(2) to require an “unreasonable
determination of fact” with § 2254(e)(1) specifying that the
state court’s presumption of correctness can only be
overcome by clear and convincing evidence.
This
inconsistency is highlighted in cases, such as this one, where
we have reviewed a state court’s Batson determination using
comparative juror analysis.
For example, in Miller-El v. Dretke, 545 U.S. 231 (2005),
the Supreme Court cited § 2254(d)(2) when stating that
“Miller-El [could] obtain relief only by showing the Texas
conclusion to be ‘an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.’” Id. at 240. In the next breath it continued,
however, by citing § 2254(e)(1) for the “presum[ption that]
the Texas court’s factual findings [are] sound unless [the
petitioner] rebuts the ‘presumption of correctness by clear
and convincing evidence.’” Id. (quoting 28 U.S.C.
§ 2254(e)(1)). In Rice v. Collins, the Court again assumed
that § 2254(e)(1) qualified (d)(2).
After quoting
§ 2254(d)(2), the Court stated that “[s]tate-court factual
findings, moreover, are presumed correct; the petitioner has
the burden of rebutting the presumption by ‘clear and
convincing evidence.’” 546 U.S. 333, 338–39 (2006) (quoting
28 U.S.C. § 2254(e)(1)); see also Schriro v. Landrigan,
550 U.S. 465, 473–74 (2007); Wiggins v. Smith, 539 U.S.
510, 528 (2003); Miller-El v. Cockrell, 537 U.S. 322, 341–42
(2003).

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The Court agreed to address the relationship between
§ 2254(d)(2) and (e)(1) in Wood v. Allen, 558 U.S. 290
(2010). Indeed, the Court stated that it granted certiorari to
resolve the question of “whether § 2254(e)(1) applies in every
case presenting a challenge under § 2254(d)(2).” Id. at 300.
And the Court recognized that (d)(2) and (e)(1) address
separate kinds of challenges. Id. at 299–300 & nn.1–2. In the
end, however, the Court declined to address “any interpretive
difference regarding the relationship between these
provisions,” and left “for another day the questions of how
and when § 2254(e)(1) applies in challenges to a state court’s
factual determinations under § 2254(d)(2).” Id. at 300,
304–05.
Notwithstanding the force of Taylor, we too have
continued to struggle with the relationship between
§§ 2254(d)(2) and (e)(1) when reviewing state-court factual
findings under AEDPA. In our en banc decision in Kesser,
we criticized the dissent for ignoring Taylor and observed
that “[b]ecause the evidence of the prosecutor’s bias is found
in the record that was before the California Court of Appeal,
we are governed by § 2254(d)(2) rather than § 2254(e)(1).”
Kesser, 465 F.3d at 358 n.1; see also Lambert v. Blodgett,
393 F.3d 943, 971–73 & n.19 (9th Cir. 2004). At the same
time, we further noted, however, that “[i]n any event, the
question of which AEDPA standard we apply here may be
academic, because the record satisfies either standard.”
Kesser, 465 F.3d at 358 n.1. Our ultimate decision was
consistent with this position. We cited § 2254(d)(2) to hold
that “[o]n the basis of the record, . . . the California Court of
Appeal’s conclusion that the prosecutor did not strike Rindels
because she was Native American [was] wrong, and
unreasonably so.” Id. at 368. We continued, however, by
citing § 2254(e)(1) and stating that “we th[ought] the record

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so strong on this point that it cannot admit any other
conclusion, and even satisfies the more demanding standard
of ‘rebutting the presumption of correctness by clear and
convincing evidence.’” Id.
Since Kesser, our panel decisions appear to be in a state
of confusion as to whether § 2254(d)(2) or (e)(1), or both,
applies to AEDPA review of state-court factual findings.
Compare, e.g., Jamerson v. Runnels, 713 F.3d 1218, 1227–36
(9th Cir. 2013) (citing only § 2254(d)(2) and finding in each
relevant situation that “the state was not unreasonable in
finding that the prosecutor’s justification for challenging [the
individual jurors] was genuine”); Hurles v. Ryan, 706 F.3d
1021, 1038 (9th Cir. 2013) (“[W]e cloak the state court’s
factual findings in a presumption of correctness. 28 U.S.C.
§ 2254(e)(1). However, we afford such deference only if the
state court’s fact-finding process survives our intrinsic review
pursuant to AEDPA’s ‘unreasonable determination’ clause.”),
with, e.g., Thompson v. Runnels, 705 F.3d 1089, 1091–92 (9th
Cir. 2013) (“We begin with the facts found by the California
Court of Appeal, which are presumed to be correct. See
28 U.S.C. § 2254(e)(1).”); Cudjo v. Ayers, 698 F.3d 752, 755
n.2, 762 (9th Cir. 2012) (stating that state court facts are
“afforded a presumption of correctness that may be rebutted
only by clear and convincing evidence”); Briggs v. Grounds,
682 F.3d 1165, 1171 (9th Cir. 2012) (citing § 2254(e)(1) for
the proposition that “[t]he burden to disprove the factual
findings rests with [the petitioner]”).
We believe any tension between Taylor and our cases or
between Taylor and limited statements by the Supreme Court
will have to be resolved by our court en banc, or by the
Supreme Court. As we will discuss, infra, we do not believe
the difference between our two lines of cases is determinative

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in this case, and thus we need not resolve the apparent
conflict to decide this case. We thus will review Murray’s
challenges to state-court findings that are based entirely on
the record for “an unreasonable determination of the facts.”
See 28 U.S.C. § 2254(d)(2); Kesser, 465 F.3d at 358 n.1. We
do not consider any new evidence as to claims adjudicated on
the merits by the state court. See Pinholster, 131 S. Ct. at
1401.
B. Uncertified Issue—Motion to Expand Certificate of
Appealability
In addition to his Batson and ineffective assistance of
counsel claims, Murray has elected to brief an uncertified
issue regarding the district court’s decision to deny his
“Motion for Leave to File a Second Amended Petition for
Writ of Habeas Corpus.” As explained below, we treat
Murray’s uncertified claim as a motion to expand the
certificate of appealability (“COA”) that we previously
granted. Under Federal Rule of Appellate Procedure
22(b)(2), a notice of appeal constitutes an application for a
COA. See Slack v. McDaniel, 529 U.S. 473, 483 (2000).
Thus, where “a motions panel grants a COA in part and
denies a COA in part,” “[u]ncertified issues raised and
designated in [the manner prescribed by Ninth Circuit Rule
22-1] will be construed as a motion to expand the COA and
will be addressed by [us] to such extent as [we] deem[]
appropriate.” 9th Cir. R. 22-1(d)–(e).
A COA may issue in federal habeas review of state
proceedings “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see also Wilson v. Belleque, 554 F.3d 816,
825–26 (9th Cir. 2009). This is not an exacting standard. Id.

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at 826. We will “not decline the application for a COA
merely because [we] believe[] the applicant will not
[ultimately] demonstrate an entitlement to relief.” Miller-El,
537 U.S. at 337. Rather, we will issue a COA “if jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right.” Wilson,
554 F.3d at 826.
If, however, the district court
denies a habeas petition on procedural
grounds without reaching the prisoner’s
underlying constitutional claim, a COA
should issue when . . . jurists of reason would
find it debatable whether the petition states a
valid claim of the denial of a constitutional
right and that jurists of reason would find it
debatable whether the district court was
correct in its procedural ruling.
Slack, 529 U.S. at 484 (emphasis added). “Where a plain
procedural bar is present and the district court is correct to
invoke it to dispose of the case, a reasonable jurist could not[,
however,] conclude either that the district court erred in
dismissing the petition or that the petitioner should be
allowed to proceed further.” Id.
If both inquiries are satisfied, we will grant a COA. See
Hoffman v. Arave, 455 F.3d 926, 943–44 (9th Cir. 2006),
vacated in part on other grounds by Arave v. Hoffman,
552 U.S. 117 (2008); United States v. Martin, 226 F.3d 1042,
1046–47 (9th Cir. 2000).

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III.

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DISCUSSION

A. Batson Claim
Murray’s primary claim is that the state court’s denial of
his Batson objection was contrary to, or involved an
unreasonable application of, clearly established Federal law,
or based upon an unreasonable determination of the facts. He
raises two separate points. First, Murray contends that the
state court’s failure to engage in a comparative juror analysis
alone is an unreasonable application of clearly established
Federal law. Second, Murray asserts that an independent
evaluation of the voir dire transcript, application of
comparative juror analysis, and a consideration of the fact
that the prosecutor relied on subjective factors “clearly and
convincingly” refutes the prosecutor’s proffered race-neutral
explanations for the exercise of the peremptory challenges
used to dismiss the two Hispanic potential jurors.
The exercise of peremptory challenges on the basis of
potential jurors’ race violates the Equal Protection Clause of
the Fourteenth Amendment. Batson v. Kentucky, 476 U.S.
79, 89 (1986). “Racial discrimination in [the] selection of
jurors harms not only the accused whose life or liberty they
are summoned to try[, but also] . . . extends beyond that
inflicted on the defendant and the excluded juror to touch the
entire community.” Id. at 87. Batson provides a three-step
inquiry to determine if a peremptory challenge was based on
race:
First, a defendant must make a prima facie
showing that a peremptory challenge has been
exercised on the basis of race[; s]econd, if that
showing has been made, the prosecution must

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offer a race-neutral basis for striking the juror
in question[; and t]hird, in light of the parties’
submissions, the trial court must determine
whether the defendant has shown purposeful
discrimination.

Snyder v. Louisiana, 552 U.S. 472, 476–77 (2008).
Under the first prong, a defendant may rely upon “all
relevant circumstances” when making a prima facie showing
that a prosecutor’s challenge was exercised based on race.
Miller-El, 545 U.S. at 240. If the defendant satisfies this
initial burden, then the burden shifts to the prosecutor.
Batson’s second prong requires the prosecutor to “give a clear
and reasonably specific explanation of [the prosecutor’s]
legitimate reasons for exercising the challenge[].” Batson,
476 U.S. at 98 n.20 (internal quotation marks omitted). That
explanation need not be “persuasive, or even plausible.”
Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)
(internal quotation marks omitted). Rather, under the second
prong, “the issue is the facial validity of the prosecutor’s
explanation. Unless a discriminatory intent is inherent in the
prosecutor’s explanation, [we will deem] the reason offered
[to] be . . . race neutral.” Id. Only Batson’s final step
requires the trial court to judge the persuasiveness of the
prosecutor’s explanation to determine whether the defendant
has ultimately satisfied the burden of proving racial
discrimination in the prosecutor’s exercise of peremptory
challenges. Id.2

2

As the Supreme Court has stated:
It is not until the third step that the persuasiveness of
the justification becomes relevant—the step in which

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Arguably, the third prong is the most important part of a
Batson inquiry because it is at that step that “the court has the
duty to determine if the defendant has established purposeful
discrimination.” Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir.
2003) (internal quotation mark omitted). This analysis “turns
largely on the court’s evaluation of the prosecutor’s
credibility,” making the trial judge’s own observations
critical at this juncture. Id. (internal quotation marks
omitted). When weighing the persuasiveness of the
prosecutor’s explanation, however, a trial judge must be
conscious that “subjective factors may play a legitimate role
in the exercise of challenges, [although] reliance on such
factors alone cannot overcome strong objective indicia of
discrimination.” Kesser, 465 F.3d at 359 (en banc) (quoting
Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir. 1994)). A court
“must evaluate the record and consider each explanation
within the context of the trial as a whole because [a]n
invidious discriminatory purpose may often be inferred from
the totality of the relevant facts.” Id. (internal quotation marks
and citations omitted). The “totality of the relevant facts”

the trial court determines whether the opponent of the
strike has carried his burden of proving purposeful
discrimination. At that stage, implausible or fantastic
justifications may (and probably will) be found to be
pretexts for purposeful discrimination. But to say that
a trial judge may choose to disbelieve a silly or
superstitious reason at step three is quite different from
saying that a trial judge must terminate the inquiry at
step two when the race-neutral reason is silly or
superstitious. The latter violates the principle that the
ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the
opponent of the strike.
Purkett, 514 U.S. at 768 (internal citations omitted).

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includes “the prosecutor’s statements about his jury selection
strategies and his explanations (racial and nonracial) for
striking minority jurors. They also include the characteristics
of people he did not challenge.” Id. at 360 (internal citation
omitted). Thus, we have long held that a comparative juror
analysis is an important tool at the disposal of a trial or
appellate judge for evaluating the totality of the relevant facts
and “exploring the possibility that facially race-neutral
reasons are a pretext for discrimination.” Lewis, 321 F.3d at
830–31.
Because Murray has asserted that both sections
2254(d)(1) and (d)(2) entitle him to federal habeas relief, we
will consider each in turn.
1. Batson and Section 2254(d)(1)
Murray has only challenged the state court’s failure to
conduct a formal comparative juror analysis under
§ 2254(d)(1). It is not disputed that neither the state trial
court nor the appellate court undertook a formal comparative
juror analysis. Murray argues that clearly established Federal
law requires state courts to conduct a formal comparative
juror analysis.
In support of his contention, Murray predominantly relies
upon the Supreme Court’s decision in Miller-El v. Dretke,
where the Court relied heavily on its own thorough
comparative juror analysis in granting the petitioner federal
habeas relief. 545 U.S. at 240–52, 266. In Kesser v. Cambra,
we recognized the importance of the Supreme Court’s
decision in Miller-El and held that “[t]he Court’s holding
means that the principles expounded in Miller-El were clearly
established Supreme Court law for AEDPA purposes at least

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by the time of the last reasoned state court decision in MillerEl, handed down in 1992.” 465 F.3d at 360. Here, the
relevant state-court decision was decided in 1995, State v.
Murray, 906 P.2d 542 (Ariz. 1995) (in banc). Therefore, the
same Supreme Court principles we declared to be clearly
established in Kesser would be controlling here.
Under Murray’s reading of Miller-El, a state court must
conduct a formal comparative juror analysis when
confronting a Batson claim. Such a legal error under
§ 2254(d)(1) would require us to grant a petitioner’s habeas
petition without even undertaking a comparative juror
analysis of our own. In effect, Murray asks us to treat
whether or not the trial court conducted a comprehensive,
formal comparative juror analysis as a kind of structural
error—a per se legal requirement of the Equal Protection
Clause of the Fourteenth Amendment, with prejudice
presumed. Miller-El did not establish any such principle of
law. Neither Batson nor the Supreme Court cases following
it clearly establish that trial courts must conduct a formal
comparative analysis. Batson did not specify the form of the
trial court’s inquiry into the prosecutor’s motive, only that it
must “undertake a sensitive inquiry into such circumstantial
and direct evidence of intent as may be available.” Batson,
476 U.S. at 93 (internal quotation mark omitted). We think
it obvious that it would be contrary to clearly established
Federal law—the “sensitive inquiry”—for a trial judge to
“rubberstamp” a prosecutor’s proffered race-neutral
explanation for exercising a disputed peremptory strike.
Similarly, we might find a clear violation of Batson where the
trial judge misstates the test or impermissibly relies on an
erroneous factor. See, e.g., Turner v. Marshall, 63 F.3d 807,
814 (9th Cir. 1995), overruled on other grounds by Tolbert v.
Page, 182 F.3d 677 (9th Cir. 1999). But, beyond these

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intuitive violations, Batson did not dictate the formal steps
the trial court must take to evaluate the prosecutor’s
credibility, it only established that the trial court must do so.
Batson and the cases that follow it do not require trial
courts to conduct a comparative juror analysis. Rather, what
Miller-El established is that a comparative juror analysis is an
important means for federal courts to review a trial court’s
ruling in a Batson challenge. A close look at Miller-El
reveals that the Court conducted its own formal comparative
juror analysis to make factual comparisons with the state
court’s factual determinations. Thus, the Court was using a
formal comparative juror analysis to review the
reasonableness of the factual determinations underlying the
state court’s decision. If the mere failure of the state court to
conduct a formal comparative juror analysis had been
contrary to the Fourteenth Amendment, the Miller-El Court
would have simply reversed for procedural error. But it did
not. The Court’s approach makes sense, however, when we
focus on our respective roles. We have recognized that
“[w]ithout engaging in comparative juror analysis, we are
unable to review meaningfully whether the trial court’s ruling
at either step one or step three of Batson was unreasonable in
light of Supreme Court precedent.” Boyd v. Newland,
467 F.3d 1139, 1149 (9th Cir. 2006) (emphasis added). That
is, in order for us to discharge our responsibility under
AEDPA to review a Batson claim under section 2254(d)(2),
we often will have to conduct a formal comparative juror
analysis, and our responsibility to conduct a comparative
juror analysis is not contingent on whether the state court
previously performed or did not perform a formal
comparative juror analysis. When there has been a Batson
challenge, trial courts are not always situated to stop the
proceedings and conduct the kind of formal comparative juror

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analysis the Court conducted in Miller-El. Often, trial courts
are well-situated to decide the question without conducting a
formal comparative juror analysis because the trial court has
had access to the juror questionnaires and has been intimately
involved in the jury selection process. The trial judge has a
front-row seat in the orchestra, making it possible for the trial
court to rule quickly on spontaneous Batson challenges.
Federal appellate courts are not similarly situated. From our
lofty perch in the loges, where we are separated by time and
distance from the proceedings, we must conduct a more
formal comparative juror analysis because it is the only
means we will have for assessing the state court’s
factfinding.3
Once we conclude that the trial court has conducted an
adequate inquiry under Batson, our review must shift from
§ 2254(d)(1) to a review of the reasonableness of the state
court’s factual determinations under § 2254(d)(2). See

3

Some of our panel decisions may be read to suggest that a state trial
court is required to perform a formal comparative juror analysis. For
example, in Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008), we stated
that “the trial court failed to undertake a sensitive inquiry into such
circumstantial and direct evidence of intent as may be available, including
a comparative analysis of similarly situated jurors, as required by clearly
established Supreme Court law at the time of the trial.” Id. at 1030
(internal quotation marks omitted). We do not think Green so holds. As
in Miller-El, Green relied on 28 U.S.C. § 2254(d)(2) and not (d)(1). Id.
at 1033. Thus, the better reading of Green is that a comparative juror
analysis is one of many tools available to undertake such a “sensitive
inquiry.” See id. at 1030 (“The ‘circumstantial and direct evidence’
needed for this inquiry may include a comparative analysis of the jury voir
dire and the jury questionnaires of all venire members.”) (emphasis
added). This reading is in harmony with our recent holding in Jamerson
v. Runnels, 713 F.3d 1218, 1224 n.1 (9th Cir. 2013); see also Cook v.
LaMarque, 593 F.3d 810, 816 & n.2 (9th Cir. 2010).

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Jamerson, 713 F.3d at 1225–26 (9th Cir. April 24, 2013);
Cook v. LaMarque, 593 F.3d 810, 816 n.2 (9th Cir. 2010).
Thus, so long as sufficient facts exist to show that a trial court
has satisfied its duty under Batson’s third step, our review is
limited to § 2254(d)(2).
Because Murray has only challenged the state court’s
determination under § 2254(d)(1) for its failure to undertake
a comparative juror analysis and this claim is without merit,
we next proceed to review Murray’s Batson claim under
§ 2254(d)(2).
2.

Batson and Section 2254(d)(2)

The Arizona Supreme Court, ruling on Murray’s Batson
claim, accepted the trial court’s finding that the “prosecutor’s
reasons [were] race neutral” and held that the trial court did
not abuse its discretion by denying Murray’s Batson
objection. Murray, 906 P.2d at 557–58. The Arizona
Supreme Court’s decision does not itself discuss the
evidence—by, for example, conducting its own comparative
juror analysis—it only concludes that the trial judge’s
determination as to potential juror Alvardo was not “wholly
subjective.” Id. Although the Arizona Supreme Court’s
decision is a ruling on the merits of Murray’s Batson claim,
it is not for our purposes a “reasoned decision.” Cf. Barker
v. Fleming, 423 F.3d 1085, 1091–92 (9th Cir. 2005) (finding
a state court’s decision to be reasoned where it “explained in
detail why review was denied and specifically examined the
substance of [the individual’s] claim”). That is, the decision
does not provide us with an explanation for why the Arizona
Supreme Court determined that there was no purposeful
discrimination by the prosecutor in the exercise of the
peremptory strikes against potential jurors Pethers and

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Alvardo; rather, the court merely stated that it accepted the
trial judge’s observations and “the prosecutor’s reasons as
race neutral.” Murray, 906 P.2d at 558. Because the Arizona
Supreme Court’s decision did not provide the reasoning
underlying its decision finding that there was no purposeful
discrimination under Batson, we must look through the
Arizona Supreme Court’s decision to the state trial court’s
decision as the reasoned decision. See Medley v. Runnels,
506 F.3d 857, 862 (9th Cir. 2007) (“On habeas review, we
look through unexplained state-court decisions leaving, in
effect, the denial of post-conviction relief to the last reasoned
state-court decision to address the claim at issue.”).
At trial, Murray asserted that the prosecutor had struck the
“only two Hispanic jurors which were in the pool.” Murray
then requested that the court order the prosecutor to respond.
Subsequently, the prosecutor offered his reasons for his
exercise of peremptory challenges against potential jurors
Pethers and Alvardo, and the trial court credited his
explanation.
With respect to potential juror Pethers, the prosecutor
focused on a major drug investigation that had centered on
her mother and uncle. All potential jurors were asked if they
knew anyone who worked for the Mohave County Attorney’s
office, since that office was prosecuting the Murray brothers.
The scrutiny of potential juror Pethers began when she
indicated that she knew Bob Moon, who worked for the
Mohave County Attorney’s office, because of her mother’s
case. Potential juror Pethers’s mother and uncle had both
spent time in jail, and even though the charges against her
mother had been dismissed, the prosecutor stated that he
believed a deal had been negotiated in her mother’s case. The
prosecutor emphasized that potential juror Pethers’s mother

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and uncle “were heavy into drugs,” “[b]oth of the people
around them were suspected of being in drugs,” and there was
a forfeiture action proceeding against her mother. The
prosecutor stood upon these facts to support his challenge of
potential juror Pethers.
As for potential juror Alvardo, the prosecutor’s
explanation was that he was excessively nice, to the point that
he was indecisive. The prosecutor based this explanation on
his personal knowledge from having been socially acquainted
with Alvardo.
After the prosecutor provided his explanations, the trial
judge stated:
Well, under Batson, of course, the real
question is whether the State gives valid race
neutral reasons for the strike, and based on the
record, my own opinions about those two
particular jurors, I find that the reasons given
by the State are sufficient. It’s difficult to
make a Batson case when you only have two
minorities on the jury, but even with the two
I am finding that the reasons are sufficient. I
don’t find that there was any racial reasons for
the strikes, and the reasons are consistent with
my own assessments of those particular
jurors. So, the Batson objection is denied.
The trial court noted that only two potential jurors were
involved, at the same time acknowledging that the two
comprised all of “the minorities on the jury.” The trial judge
found the reasons proffered by the prosecutor “sufficient” and
could “[not] find that there was any racial reasons for the

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strike,” and that the reasons were “consistent with [his] own
assessments of those particular jurors.” The trial court’s
observations, however brief, are fully consistent with its
obligations under Batson.
Our obligations on AEDPA review, however, cannot be
based on our “own assessments of those particular jurors.”
Consistent with Miller-El, we have to conduct our own
comparative juror analysis to determine whether the trial
court’s “own assessments” constitute an “unreasonable
determination of the facts.” 28 U.S.C. § 2254(d)(2).
a. Potential Juror Pethers
On their face, the prosecutor’s proffered explanations for
his peremptory strike of potential juror Pethers are raceneutral. The prosecutor explained that members of potential
juror Pethers’s family had been prosecuted by the Mohave
County Attorney’s office, and that her mother was still
subject to a forfeiture action. Those are legitimate grounds
for exercising a peremptory challenge. See Miller-El,
545 U.S. at 292–93 (“The very purpose of peremptory strikes
is to allow parties to remove potential jurors whom they
suspect, but cannot prove, may exhibit a particular bias.”).
Our comparative juror analysis supports the prosecutor’s
explanation. Murray points to potential jurors B and E1 as
similarly-situated, non-Hispanic jurors whose family
members were involved in illegal activity but who were not
challenged.4 These potential jurors are not, however,

4

As we previously stated in Kesser, when conducting a comparative
juror analysis “we necessarily include information about jurors and venire
members. Where these individuals’ identities have not been publicly

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similarly situated to potential juror Pethers. Potential juror B
is white and served on the jury. At the time of jury selection,
B’s brother-in-law was being represented by Roger Wayne
Murray’s counsel because he had recently “gotten a few
DUI’s.” B stated, however, that her brother-in-law’s situation
would not affect her ability to sit on the jury. As for potential
juror E1, his son-in-law had been charged with a drug
offense. The prosecutor requested that the court question E1
about his feelings regarding the criminal justice system
before deciding whether or not to exercise a peremptory
challenge. In response, E1 stated that his son-in-law’s
situation had not affected his thoughts about the criminal
justice system. In fact, when questioned about his feelings on
criminal sentencing, E1 stated that his “son-in-law was one
that got off too easy.”
There are similarities between these potential jurors. All
three potential jurors had family members who were involved
with the criminal justice system. All three claimed it would
not affect their ability to sit on the jury.
The differences among the three, however, are greater
than the similarities. First, the relationship between a mother
and a daughter is likely to be far closer than that of a woman
with her brother-in-law or a man with his son-in-law. The
affinity in the family relation was much closer in potential
juror Pethers’s case, creating a greater risk that she might be
influenced by her mother’s prosecution. Second, the

disseminated previously, we have chosen to preserve their privacy by
withholding their names.” 465 F.3d at 362 n.4. Here, we are going to
refer to these individuals by the first letter of their last name. In instances
where more than one juror’s last name start with an identical letter, they
are differentiated by a number (e.g., “Juror A1” and “Juror A2”).

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prosecution of potential juror Pethers’s mother stemmed from
what the prosecutor characterized as a major drug
investigation, including a criminal forfeiture, which is a far
cry from DUIs or simple drug possession offenses. Third,
potential juror Pethers had personally been in the county
attorney’s office with regards to the investigation at issue and
her mother’s prosecution. This fact, along with the
prosecutor’s statement that other people around potential
juror Pethers’s mother were suspected of involvement,
suggests that the prosecutor had reason to believe that
potential juror Pethers had some active interest in her
mother’s case. We need not strain to see the potential bias
inhering in such a situation. Moreover, potential juror
Pethers’s mother was contemporaneously subject to criminal
forfeiture proceedings that potentially had a direct economic
impact on Pethers. By contrast, B’s reaction illustrates her
ambivalence toward her brother-in-law’s legal troubles—
“He’s gotten a few DUI’s lately.”
Similarly, E1’s
spontaneous statement that his son-in-law got off too easy
would tend to allay any questions that the prosecutor might
have as to bias. In sum, the prosecutor provided a persuasive,
race-neutral explanation for his peremptory challenge of
potential juror Pethers, and there was a reasonable basis for
the state court’s decision. Our comparative juror analysis
shows that the state court’s decision regarding potential juror
Pethers was not an unreasonable determination of the facts.
b. Potential Juror Alvardo
The prosecutor’s proffered explanation for his strike of
potential juror Alvardo is also race-neutral. The prosecutor’s
explanation was based solely on his own personal
acquaintance with Alvardo. Such “subjective factors [in the
prosecutor’s explanation] may [only] play a legitimate role in

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the exercise of [a] challenge[] . . . [where] reliance on such
factors alone [is not] overcome [by] strong objective indicia
of discrimination.” Kesser, 465 F.3d at 359. Relying solely
upon the prosecutor’s subjective impression based upon his
social interactions with potential juror Alvardo is, admittedly,
a soft factor that is so subjective that it is difficult to dispute.
The record also includes, however, the trial judge’s personal
impression of potential juror Alvardo based on his
observation of potential juror Alvardo during voir dire. The
trial judge’s own impressions and observations are worthy of
a great degree of deference and provide sufficient support for
the prosecutor’s otherwise unsubstantiated explanation,
particularly in the absence of any contention by Murray that
potential juror Alvardo was not actually indecisive.
Murray contends that both potential jurors E2 and J knew
the prosecutor, and the prosecutor presumably thought they
were “nice” people, just like potential juror Alvardo. It is
true that the prosecutor “used to be one of [E2’s] paper
customers when [she and her kids] had [a] paper route.”
Furthermore, in the course of these interactions, E2 had
spoken with the prosecutor “once in a while.” Likewise, J
was the prosecutor’s lodge brother. E2 and J were thus
acquaintances of the prosecutor just like potential juror
Alvardo. The prosecutor did not rely solely on his
acquaintance with Alvardo, however, but rather Alvardo’s
indecisive nature. There is no information in the record to
suggest that either E2 or J were indecisive. Moreover,
indecisiveness is a legitimate reason to exercise a peremptory
challenge. See Brown v. Lambert, 451 F.3d 946, 958 (9th Cir.
2005), reversed on other grounds by Uttecht v. Brown,
551 U.S. 1 (2007) (“It was not unreasonable for the trial
judge to conclude that . . . Juror Z was unfit to serve because

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of his indecisiveness, suggesting his inability to properly
follow the court’s instructions and apply the law.”).
We hold that, the state court’s decision was not an
unreasonable determination of the facts.
c. Racially Stereotyped Language
In addition to his comparative juror analysis claim,
Murray also makes much of the fact that the prosecutor began
his explanation for his peremptory challenges by stating that
he did not believe that potential juror Pethers was Hispanic.
In this regard, the prosecutor stated that he could not recall if
potential juror Pethers “appeared to talk Hispanic” and noted
that her maiden name, Garcia, could have been Spanish, as
opposed to Hispanic. Murray contends that these comments
alone, much like the circumstances underlying our decision
in Kesser, raise “questions regarding the prosecutor’s racial
and cultural stereotype of the Hispanic population.”
The prosecutor’s comments on Native Americans and
others were far more troubling in Kesser than the prosecutor’s
awkward explanation here. In Kesser, the prosecutor
“explained that the Native Americans who work for the tribe
are troublesome because they are more likely to associate
themselves with the culture and beliefs of the tribe instead of
our laws, and are likely to be resistive and somewhat
suspicious of the justice system.” Kesser, 465 F.3d at 362
(internal quotation marks omitted). Thus, in Kesser, the
prosecutor’s comments played on Native American culture as
the precise reason for challenging the juror. By their very
nature, such comments are not race-neutral. In Kesser, we
also noted that the prosecutor’s discussion of another
potential juror was relevant “because it indicates possible

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racial animus and so lends support to Kesser’s argument that
the prosecutor employed racial stereo-types throughout the
jury selection.” Id. at 369 n.6. The prosecutor had mentioned
that he “did not consider [the potential juror] to be Native
American, ‘but she was in fact brown skinned,’” although the
prosecutor could not determine by looking at her whether
“she was an [E]ast [I]ndian, a Chican[a], or a [F]ilipin[a].”
Id. Moreover, “[a]lthough [the potential juror] did not testify
about her relationship with her husband, the prosecutor was
convinced that ‘she was somewhat insecure and she
impressed [him] as a woman who would walk two steps to
the left and one to the rear.’” Id. We found that statement to
“smack[] of racial and ethnic stereotypes of the subservient
Asian woman.” Id.
Murray’s situation is quite different from Kesser. Here,
the prosecutor’s statements do not fairly appear to be
connected with the subsequent proffered race-neutral
explanation. Rather, on reflection, the prosecutor’s statement
may appear clumsy and politically incorrect, but the
comments fairly appear to be made to challenge the facts
proffered by Murray to establish his prima facie case of
purposeful discrimination. That is, the prosecutor was merely
attempting to question whether both jurors were actually
Hispanic; if they were not, then Murray would have failed to
establish his prima facie case. We cannot say that these
statements alone prove that a racial motivation was
underlying the prosecutor’s exercise of his peremptory
challenges.
We affirm the district court’s denial of Murray’s Batson
claim.

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B. Ineffective Assistance of Counsel Claim
The Superior Court of the State of Arizona for the County
of Mohave issued the only state-court decision regarding
Murray’s ineffective assistance of counsel claim, so it is the
only state-court decision that we can review. The decision,
however, merely concluded that Murray “fail[ed] to raise a
colorable issue of ineffective assistance of counsel” for trial
counsel’s alleged “[f]ailure to properly prepare for the
aggravation/mitigation hearing on the death penalty.”
Murray argues that the state court’s denial of his
ineffective assistance of counsel claim violates § 2254(d)(1)
as contrary to, or an unreasonable application of, clearly
established Federal law, and § 2254(d)(2) as being based on
an unreasonable determination of the facts. Murray contends
that O’Neill “failed to investigate and present readilyavailable mitigation evidence to the sentencing court . . .
provid[ing] a[n] [in]complete picture of Murray’s troubled
childhood and impairments.” Murray asserts that O’Neill did
not begin preparations for the sentencing phase until after the
guilt phase had concluded and that those preparations did not
include: obtaining a complete set of his school, employment,
medical, prison, and probation records; and interviewing
members of his immediate family or his closest childhood
friends. Finally, Murray argues that O’Neill failed to provide
Dr. Potts with sufficient background information and that
O’Neill should have hired additional mental health experts
“to evaluate Murray and testify about his organic brain
damage and other neuropsychological problems.”

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1. Strickland Standard

The Sixth Amendment right to effective assistance of
counsel, applicable to the states through the Due Process
Clause of the Fourteenth Amendment, applies through the
sentencing phase of a trial. U.S. Const. amend. VI; U.S.
Const. amend. XIV, § 1; Gideon v. Wainwright, 372 U.S.
335, 343–45 (1963); Silva v. Woodford, 279 F.3d 825, 836
(9th Cir. 2002). The Supreme Court explained the legal
standard for assessing a claim of ineffective assistance of
counsel in Strickland v. Washington, 466 U.S. 668, 685–87
(1984). Strickland contains two prongs:
First, the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant
must show that the deficient performance
prejudiced the defense. This requires showing
that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant
makes both showings, it cannot be said that
the conviction or death sentence resulted from
a breakdown in the adversary process that
renders the result unreliable.
Id. at 687.
Strickland’s first prong requires that “the defendant . . .
show that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. “[T]he relevant

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inquiry . . . is not what defense counsel could have pursued,
but rather whether the choices made by defense counsel were
reasonable.” Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th
Cir. 1998). This inquiry is “highly deferential” to begin with,
Strickland, 466 U.S. at 689, and “doubly deferential” when
Strickland and AEDPA “operate in tandem.” Walker,
709 F.3d at 941 (citing Richter, 131 S. Ct. at 788) (internal
quotation marks omitted).
Counsel has a “duty to make reasonable investigations or
to make a reasonable decision that makes particular
investigations unnecessary.” Id. at 691. In Wiggins v. Smith,
539 U.S. 510 (2003), the Supreme Court clarified that the
relevant inquiry “is not whether counsel should have
presented a mitigation case,” but rather, “whether the
investigation supporting counsel’s decision not to introduce
mitigating evidence of [a defendant’s] background was itself
reasonable.” Id. at 523. The Supreme Court stated that “[i]n
assessing counsel’s investigation, we must conduct an
objective review of their performance, measured for
‘reasonableness under prevailing professional norms,’ which
includes a context-dependent consideration of the challenged
conduct as seen ‘from counsel’s perspective at the time.’” Id.
(internal citation omitted). That is, “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take
account of the variety of circumstances faced by defense
counsel or the range of legitimate decisions.” Pinholster,
131 S. Ct. at 1406. We must therefore begin any ineffective
assistance of counsel inquiry “with the premise that ‘under
the circumstances, the challenged action[s] might be
considered sound trial strategy.’” Id. at 1404 (quoting
Strickland, 466 U.S. at 689).

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Strickland’s second prong requires that “[t]he defendant
. . . show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Here, “the question
is whether there is a reasonable probability that, absent the
errors, the sentencer—including an appellate court, to the
extent it independently reweighs the evidence—would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 695; see also
Rompilla v. Beard, 545 U.S. 374, 390 (2005) (examining
Strickland’s prejudice prong de novo, where the state courts
had never reached the issue of prejudice).
2. Application of 28 U.S.C. § 2254(d)
Murray claims that the state court’s decision was
“contrary to, or involved an unreasonable application of,
clearly established Federal law” under § 2254(d)(1). He also
argues that the state court’s rejection of his claim was “based
on an unreasonable determination of the facts” under
§ 2254(d)(2). As above, because there is no reasoned statecourt decision, we must undertake an independent review of
the record to determine if any reasonable basis supports the
state court’s decision. See Walker, 709 F.3d at 939.
Here, Murray has attempted to supplement the state-court
record with extrinsic evidence—affidavits, including
declarations by friends and family members, and expert
opinions relating to Murray’s psychiatric evaluation by Dr.
Potts. None of these materials were brought to the attention
of the state courts, but were first introduced before the district
court.

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The only evidence submitted before the state court with
respect to Murray’s ineffective assistance of counsel claim
was testimony elicited from O’Neill during a state-court
evidentiary hearing. That evidence was focused, however, on
O’Neill’s failure to call a Mr. Anthony as a witness, although
some general information was presented about O’Neill’s
overall lack of experience in handling serious felony and
death penalty cases. No evidence was presented before the
state court regarding O’Neill’s alleged failure to “contact
Murray’s closest childhood friends . . . and his two sisters,”
hire an investigator experienced in mitigation investigation,
or hire additional mental health experts. Because, as Murray
concedes, the state court decided this claim on the merits, we
may only consider the evidence that was before the state court
in our AEDPA review.5 See Pinholster, 131 S. Ct. at 1398.
Furthermore, our review is limited to whether “we [are]
convinced that an appellate panel, applying the normal
standards of appellate review, could not reasonably conclude
that the [state court’s] finding[s] [are] supported by the
record.” Taylor, 366 F.3d at 1000.
Our independent review of the state-court record reveals
the following.
As part of Murray’s pre-sentence
memorandum, O’Neill appended a number of letters and
taped interviews with friends, family, co-workers, and other
acquaintances. These communications reveal that O’Neill
began investigating Murray’s background and preparing for
the sentencing hearing long before the guilt phase was
concluded. Further, it appears that O’Neill traveled from
Arizona to Alabama and personally interviewed individuals

5

Although Murray has previously made claims of ineffective assistance
of appellate counsel, those claims have all been denied and are not before
us.

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acquainted with Murray. We find that Murray’s contention
that O’Neill failed to begin preparations for the penalty phase
prior to the conclusion of the guilt phase is unfounded.
With respect to the thoroughness of counsel’s
investigation, a look at O’Neill’s pre-sentence memorandum
reveals that she and her investigator had contacted and
interviewed the following individuals, at least once: Joyce
Michael (ex-wife), Ruby Bradford (aunt), Hulon Murray
(uncle), Pete Hardee (friend and former co-worker), Tom
Hallman (ex-employer and family friend), Doug Price
(former classmate and friend), and David Lovelace (friend).
These individuals provided a wealth of information regarding
Murray’s background.
Counsel elicited information
regarding Murray’s urinary and fecal incontinence and the
corresponding effects those difficulties had on him as a child,
Murray’s physically and verbally abusive childhood,
Murray’s failure in school, and Murray’s exposure to
weapons.
At Murray’s sentencing hearing, in addition to the presentence investigation and memorandum, O’Neill submitted
into evidence a number of letters written on Murray’s behalf.
The letters were written by: Justin Murray (son), Joyce
Murray (ex-wife), Brenda Murray (mother), Kenneth Murray
(father), Shonna Alexander (sister), Angela Hall (sister),
Keith Alexander (brother-in-law), Dolphus Bradford (uncle),
Karrie Murray, Leslie O’Dell, Barbara O’Dell, and Tom and
Ann Morgan.
Not all of this information, however, was introduced
through live testimony at the sentencing hearing. O’Neill
advised the trial court that

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the people that know my client, Robert
Murray, and have known him all of his life,
don’t live in Arizona, they live 2,000 miles
away or so in Alabama. A few of those
people are going to be able to come out and
testify. Most of them cannot for various
reasons.
A wealth of information was provided to the court in the best
possible way O’Neill could present it in light of geographical
and other constraints.
O’Neill did have three witnesses available to testify:
Brenda Murray (mother), Angela Hall (sister), and Ruby
Bradford (aunt). Brenda Murray testified about how
Murray’s father had physically abused him with his fists, at
least a dozen times. She further detailed Murray dropping out
of high school; working in his father’s bookie and night club
operations; being worked excessively by his father, even with
a broken collarbone; and being forced into a marriage at a
young age. Murray’s aunt, Ruby Bradford, testified
regarding Murray’s childhood urinary and fecal incontinence
and Murray’s father’s failure to have him examined by a
doctor even though encouraged to do so by Murray’s
grandmother. Ruby Bradford also testified that Murray was
a withdrawn child. Although Murray’s sister, Angela Hall,
was present and prepared to testify, counsel did not call her.
Nothing in the record suggests that she could have presented
information that was not already before the court or that
might have affected the results.
Murray’s claims that O’Neill neglected to interview his
immediate family members and closest friends and only
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and impairments are unsupported by the evidence in the
record. No attorney can present a complete picture of his
client’s life. In this case, however, O’Neill provided the state
court with sufficient evidence to paint a vivid picture of
Murray’s life. Murray cannot point to a single, material piece
of evidence that would have been determinative at
sentencing. Thus, we find that O’Neill’s performance, in this
regard, did not fall below an objective standard of
reasonableness under Strickland, much less that the state
court’s decision was an unreasonable application of
Strickland.
Murray further contends that O’Neill failed to obtain a
complete set of Murray’s school, employment, medical,
prison, and probation records. In particular, Murray argues
that O’Neill did not provide sufficient background
information to Dr. Potts and that additional experts should
have been hired to testify regarding organic brain damage.
Again, however, the record belies this contention. O’Neill’s
pre-sentence report contained a set of Murray’s prison records
from Alabama. The pre-sentence investigation report
included Murray’s prior criminal record. Likewise, the
information presented to Dr. Potts for use in conducting his
mental evaluation included Murray’s criminal, prison, and
school records. Furthermore, it appears that Dr. Potts
personally interviewed Murray regarding his medical history,
including previous difficulties with intense headaches and
seizures; conducted interviews with numerous individuals
who knew Murray; and had access to information relating to
the crime. The record does not support a finding that O’Neill
did not provide Dr. Potts with sufficient background
information. Furthermore, O’Neill had no information that
would have made resort to an additional expert necessary.
Dr. Potts was aware of Murray’s previous headaches and

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seizures and did not find them to be consequential, so there
was no reason for O’Neill to inquire further.
In sum, we find that the record does not support a finding
that the state court’s decision regarding the adequacy of
O’Neill’s performance in conducting the mitigation
investigation was based on an unreasonable determination of
the facts or an unreasonable application of Strickland.
Murray can point to no evidence that would suggest that the
state court’s decision was based on an unreasonable
determination of fact. The record shows that O’Neill pursued
diligently a number of avenues for obtaining background
evidence relevant to the mitigating factors that could assist in
Murray’s sentencing hearing. We affirm the district court’s
denial of Murray’s ineffective assistance of counsel claim.
C. Uncertified Issue—District Court’s Denial of Murray’s
“Motion for Leave to File a Second Amended Motion for
Writ of Habeas Corpus”
In addition to his Batson and ineffective assistance of
counsel claims, Murray has elected to brief an uncertified
issue, arguing that the district court abused its discretion by
denying his “Motion for Leave to File a Second Amended
Petition for Writ of Habeas Corpus.” That motion contained
sixteen claims—fifteen claims that had previously been
withdrawn and one additional new claim.6 The district court
denied Murray’s motion to amend because it found the
proposed claims to be duplicative, frivolous, and futile, and

6

The sixteen claims are numbers 6, 20–21, 23–27, 38, 41–46, and 48 in
Murray’s proposed Second Amended Petition for a Writ of Habeas
Corpus.

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determined that allowing the amendment would unduly delay
the proceedings and prejudice the respondents.
Murray contends that the state court’s failure to designate
with sufficient clarity why it did not decide Murray’s claims
on the merits makes federal review appropriate, and that his
claims are not futile. Furthermore, Murray argues that the
previous withdrawal of his claims from his federal habeas
petition to pursue post-conviction relief in state court did not
unduly delay the presentation of his claims to the district
court, particularly because the parties were the same in both
state and federal court and his withdrawal of claims was not
done in an effort to avoid procedural requirements.
We decline to grant Murray’s motion to expand the COA
because he has failed to make a substantial showing of the
denial of a constitutional right. The district court found that
the majority of Murray’s proposed claims would be futile. A
determination of futility contemplates whether, upon de
novo review, the amendment could present a viable claim on
the merits for which relief could be granted. See Carvalho v.
Equifax Info. Servs., LLC, 629 F.3d 876, 893 (9th Cir. 2010)
(“When the district court denies leave to amend because of
futility of amendment, we will uphold such denial if ‘it is
clear, upon de novo review, that the complaint would not be
saved by any amendment.’” (quoting Leadsinger, Inc. v.
BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008));
Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010); see
also Caswell v. Calderon, 363 F.3d 832, 838–39 (9th Cir.
2004). Furthermore, “proposed amendments [are futile when
they] are either duplicative of existing claims or patently
frivolous.” Bonin v. Calderon, 59 F.3d 815, 846 (9th Cir.
1995). Thus, jurists of reason would not find debatable that

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a futile claim cannot be the basis for a substantial showing of
the denial of a constitutional right.
Murray argues that the district court erred in determining
that it would have been futile for him to amend his habeas
petition. Murray contends that federal review is not barred by
procedural default because there is no unambiguous
independent and adequate state ground. Specifically, Murray
asserts that the state court’s decision was ambiguous because
“it referenced more than one state procedural rule in
connection with more than one claim.”
The doctrine of procedural default provides that “a federal
court will not review the merits of claims, including
constitutional claims, that a state court declined to hear
because the prisoner failed to abide by a state procedural
rule.” Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). This
doctrine is grounded in federalism, because federal courts
“will not review a question of federal law decided by a state
court if the decision of that court rests on a state law ground
that is independent of the federal question and adequate to
support the judgment.” Coleman v. Thompson, 501 U.S. 722,
726–29 (1991). On the other hand, “if the decision of the last
state court to which the petitioner presented his federal claims
fairly appeared to rest primarily on resolution of those claims,
or to be interwoven with those claims, and did not clearly and
expressly rely on an independent and adequate state ground,
a federal court may address the petition.” Id. at 735; see also
Belmontes v. Ayers, 529 F.3d 834, 856 (9th Cir. 2008), rev’d
on other grounds by Wong v. Belmontes, 558 U.S. 15 (2009).

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1. Claims 6, 21, 23–27, and 42–46

Murray’s proposed claims 6, 21, 23–27, and 42–46 were
presented in a petition for post-conviction relief filed in
Arizona state court. Each of those claims was denied by the
state court as “precluded under Rule 32.2 of the Arizona
Rules of Criminal Procedure.” Rule 32.2 provides in relevant
part:
a. Preclusion. A defendant shall be precluded
from relief under this rule based upon any
ground:
(1) Raisable on direct appeal under Rule
31 or on post-trial motion under Rule 24;
(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.
Ariz. R. Crim. P. 32.2(a). We have explained that
[a] claim that has been found to be
‘precluded’ under subsection (a)(2) appears to
be a classic exhausted claim and may
therefore be subject to consideration in federal
habeas. . . . In contrast, a claim that has been
‘waived’ under subsection (a)(3) is
procedurally defaulted and therefore barred
from federal court consideration, absent a

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showing of cause and prejudice
fundamental miscarriage of justice.

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or

Poland v. Stewart, 169 F.3d 573, 578 (9th Cir. 1999).
Similarly, the Supreme Court has recognized Arizona Rule of
Criminal Procedure 32.2(a)(3) as an independent and
adequate state ground that bars federal habeas review of
constitutional claims. Stewart v. Smith, 536 U.S. 856, 861
(2002). For such a state procedural rule to constitute an
adequate state ground, however, the rule must be “firmly
established and consistently followed.” Martinez, 132 S. Ct.
at 1316; Johnson v. Mississippi, 486 U.S. 578, 587–89
(1988). We have determined that Arizona Rule of Criminal
Procedure 32.2(a)(3) has been firmly established and
consistently followed, and Murray has not pointed to any
decisions “demonstrat[ing] that Arizona has become
inconsistent and irregular in its reliance on [that rule].” Ortiz
v. Stewart, 149 F.3d 923, 931–32 (9th Cir. 1998).
Accordingly, Murray’s claims have been procedurally
defaulted and allowing him to amend his federal habeas
petition would be futile, regardless of any potential
constitutional merit inhering in the underlying claims.
28 U.S.C. § 2254(b)(1)(A).
Here, Murray’s lone argument is that the state court’s
ruling was ambiguous and therefore an unambiguous,
independent, and adequate state ground does not bar habeas
review. The state court decision dismissing Murray’s claims
in his second petition for post-conviction relief stated that the
issues were “precluded under Rule 32.2 of the Arizona Rules
of Criminal Procedure.” Murray argues that the state court
decision was ambiguous because it failed to specify which
subsection of Rule 32.2 the decision relied upon and reliance
upon Rule 32.2(a)(2) would be properly before the district

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court as an exhausted claim. Murray is correct that the state
court did not specify which subsection of Rule 32.2 it was
relying on, but we do not think that ends the discussion. The
question becomes whether other information can be consulted
to determine if the state court clearly relied upon Rule
32.2(a)(3).
In Coleman, the Court observed that the Virginia
Supreme Court had granted a motion to dismiss the petition
for appeal without stating its reasons. 501 U.S. at 740.
There, the Court looked beyond the order granting the motion
to dismiss and found that the “motion was based solely on
Coleman’s failure to meet the [Virginia] Supreme Court’s
time requirements.” Id. The Court relied on the fact that the
underlying motion only discussed state-law time
requirements and concluded that it constituted an independent
and adequate state ground. Id.; see also Poland, 169 F.3d at
578–79 (examining prior proceedings to determine whether
the claims were procedurally precluded). However, we have
said that where underlying arguments present mixed
arguments of preclusion and waiver there is no “clear[] and
express[]” state bar to federal review. Valerio v. Crawford,
306 F.3d 742, 774–75 (9th Cir. 2002); Lambright v. Stewart,
241 F.3d 1201, 1205–06 (9th Cir. 2001) (citing Ceja v.
Stewart, 97 F.3d 1246, 1253 (9th Cir. 1996)).
As in Coleman and Poland, the district court looked to the
petition for post-conviction relief underlying the state court’s
ruling. Here is the district court’s finding:
[A] review of [Murray’s] Rule 32 petition
reveals that, in arguing against summary
dismissal, he only addressed the reasons the
Withdrawn Claims had not been presented in

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his initial Rule 32 proceeding, i.e., why the
claims were not precluded as waived under
subsection (a)(3). He did not argue in state
court, nor does he argue in this Court, that the
claims had been previously adjudicated. This
Court concludes that the state court’s intent
regarding preclusion is plain, unambiguous
and necessarily rested on subsection (a)(3).
We have reviewed Murray’s petition and agree with the
district court. In his petition, Murray exclusively argued why
Rule 32.2(a)(3) did not preclude Arizona courts from
reviewing his claims. Indeed, Murray has not argued before
the state court, district court, or us that his claims had
previously been adjudicated. Thus, it does not “fairly appear”
that the state court relied upon Rule 32.2(a)(2). As such,
Murray’s claims are procedurally defaulted—and amendment
is futile—unless he can “show[] cause for the default and
prejudice from a violation of federal law.” Martinez, 132 S.
Ct. at 1316. Murray has not, however, attempted to show
cause and prejudice, even though he was given the
opportunity to do so by the district court. Since Murray has
not shown cause and prejudice, proposed claims 6, 21, 23–27,
and 42–46 are procedurally defaulted and amendment would
be futile. We therefore agree with the district court that
reasonable jurists would not find it debatable that these
proposed claims do not set forth a substantial showing of the
denial of a constitutional right. We decline to expand the
COA with respect to these claims.
2. Claims 38 and 41
Murray’s proposed claim 38 was also presented in a
petition for post-conviction relief that was filed in Arizona

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state court. Proposed claim 38 was also denied by the state
court as “precluded under Rule 32.2 of the Arizona Rules of
Criminal Procedure.” As such, Murray’s proposed claim 38
is procedurally defaulted for the same reason as claims 6, 21,
23–27, and 42–46 above.
Likewise, Murray’s proposed claim 41 is also
procedurally defaulted. Murray failed to present proposed
claim 41 to the state court and, like the claims discussed
above, it is barred by Arizona Rule of Criminal Procedure
32.2(a)(3). A claim is still barred by procedural default if
“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.
Since both claims 38 and 41 have been procedurally
defaulted, Murray can raise these claims on habeas review
only if he can show cause and prejudice. See Martinez,
132 S. Ct. at 1316. With respect to these two claims, which
allege ineffective assistance of trial counsel, Murray has
raised a Martinez claim that could potentially satisfy the
requisite cause and prejudice. In Martinez, the Supreme
Court stated that “[w]here, under state law, claims of
ineffective assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural default will
not bar a federal habeas court from hearing a substantial
claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” 132 S. Ct. at 1320 (emphasis
added). As in Martinez, Murray alleges that he could not
have brought his ineffective assistance of trial counsel
claims—claims 38 and 41—in his initial petition for state
post-conviction relief. Murray asks that this case be

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remanded to for the district court to determine whether he can
establish cause and prejudice to overcome his procedural
default.
Martinez cannot establish cause for Murray because he
cannot show a “substantial claim” of ineffective assistance of
trial counsel. Sexton v. Cozner, 679 F.3d 1150, 1157–58 (9th
Cir. 2012). Murray’s proposed claim 38 is based upon
O’Neill’s alleged failure to secure experts to discredit the
State’s witnesses at trial. As we stated above, under
Strickland, to establish an ineffective assistance of counsel
claim Murray must show (1) deficient performance and
(2) prejudice. Strickland, 466 U.S. at 687. Murray alleges
that a number of experts could have potentially discredited
various of the state’s witnesses: O’Neill relied on Roger
Wayne Murray’s expert witness who the jurors laughed at
during his cross-examination; O’Neill did not call an expert
to testify as to the proper methodology of collecting evidence;
O’Neill did not retain a doctor to testify about Murray’s preexisting ankle injury that may have discredited the State’s
footprint evidence; O’Neill did not retain an expert to
determine the identification of the unidentified fingerprints
that were found at the crime scene; O’Neill did not retain an
expert to determine the identification of the unidentified
fingerprints on the weapons used in the shooting; O’Neill did
not retain a DNA expert to analyze the blood at the scene; and
O’Neill did not retain a blood splatter expert to explain how
the victims’ blood may have gotten on Murray’s clothes.
Initially, we note that many of these decisions are likely
to have been strategic in nature, requiring us to provide trial
counsel with great deference. Strickland, 466 U.S. at 690.
Regardless, Murray cannot establish prejudice. As we have
recounted in the facts, the evidence against Murray was

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overwhelming. The evidence presented by the State at trial
showed that the spent twelve-gauge shotgun shells found in
Murray’s pants’ pocket and at the crime scene were fired by
the twelve-gauge shotgun recovered from the vehicle Murray
was driving. Each of the victims had suffered a shotgun blast
to the head; the blood on Murray’s shirt could have only
come from the victims. Further, Murray was found with the
victim’s couch cushion which contained rolled coins stamped
“Dean Enterprises, Grasshopper Junction, Kingman, Arizona,
86401” and a scanner and knob from the Grasshopper
Junction tow truck. Ignoring the mountain of other evidence
directly and indirectly pointing to Murray’s guilt, this
evidence alone is more than sufficient to implicate Murray in
the murders. Thus, even if O’Neill had offered the experts
Murray claims should have been presented, the evidence was
so overwhelming that it would have had no effect on the
jury’s verdict. As such, Murray cannot show that his
potential Martinez claim is underpinned by a substantial
ineffective assistance of trial counsel claim, since that claim
is wholly without merit.
Murray’s proposed ineffective assistance of trial counsel
claim 41 is also based upon O’Neill’s alleged ineffectiveness
for failing to question the trial court judge about his views on
the death penalty. Murray has offered nothing to suggest that
the trial court judge possessed any bias regarding the death
penalty.
Because Murray cannot rely upon Martinez to supply the
cause and prejudice for his procedural default of proposed
claims 38 and 41, these claims are also futile. We therefore
agree with the district court, and conclude that reasonable
jurists would not find it debatable that these proposed claims
fail to set forth a substantial showing of the denial of a

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constitutional right. We decline to expand the COA with
respect to these claims.
3. Claims 20 and 48
The district court also denied Murray leave to amend his
petition to include his proposed claim 20 based on Ring v.
Arizona, 536 U.S. 584 (2002). Relying on Schriro v.
Summerlin, 542 U.S. 348 (2004), the district court found this
claim to be futile since Murray’s direct appeal was final prior
to the Court’s decision in Ring. See id. at 358 (holding that
Ring “does not apply retroactively to cases already final on
direct appeal”). Because the district court was clearly correct,
proposed claim 20 is futile.
Finally, Murray’s proposed claim 48 is futile as
duplicative of claims already presented in his habeas
petition—claims 8, 13, 15–19, and 28. See Bonin v.
Calderon, 59 F.3d 815, 846 (9th Cir. 1995). Thus, none of
the additional claims Murray desires to include in his
proposed Second Amended Petition could present a viable
claim on the merits for which relief could be granted. See
Carvalho, 629 F.3d at 892–93.
Because jurists of reason would not find debatable that
Murray has failed to set forth a substantial showing of the
denial of a constitutional right, we deny his motion to expand
the COA.
IV.

CONCLUSION

For the foregoing reasons, the district court properly
denied Murray’s petition for the writ of habeas corpus. The
judgment of the district court is AFFIRMED.