Thomas Kemp v. Dora Schriro

Filing

FILED OPINION (PAMELA ANN RYMER, CONSUELO M. CALLAHAN and SANDRA S. IKUTA) AFFIRMED Judge: CMC Authoring, FILED AND ENTERED JUDGMENT. [7732650]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS ARNOLD KEMP,
Petitioner-Appellant,
v.
CHARLES L. RYAN, TERRY L.
STEWART, Director; GEORGE
HERMAN,
Respondents-Appellees.




No. 08-99030
D.C. No.
4:00-cv-00050-FRZ
OPINION



Appeal from the United States District Court
for the for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted
March 10, 2011—Pasadena, California
Filed April 28, 2011
Before: Pamela Ann Rymer, Consuelo M. Callahan, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Callahan

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COUNSEL
Jon M. Sands, Federal Public Defender, Timothy M. Gabrielsen (argued), and Sylvia J. Lett, Assistant Federal Public

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Defenders, of Tucson, Arizona, for petitioner-appellant
Thomas Arnold Kemp.
Terry Goddard, Arizona Attorney General, Kent Cattani
(argued), Chief Counsel Criminal Appeals, and Donna J.
Lam, Assistant Attorney General of Tucson, Arizona, for
respondents-appellees Charles L. Ryan, et al.

OPINION
CALLAHAN, Circuit Judge:
Thomas Arnold Kemp raises three issues in his appeal from
the district court’s denial of his habeas petition seeking relief
from his state conviction for felony first-degree murder,
armed robbery and kidnaping and from his capital sentence.
First, Kemp asserts that his rights to be free from compelled
self-incrimination and to counsel under the Fifth, Sixth, and
Fourteenth Amendments were violated when correctional
officers asked him questions and his incriminating statements
were admitted at trial. Kemp also argues that the district court
abused its discretion in denying him discovery to prove this
claim. Second, Kemp contends that without his incriminating
statements, which should have been suppressed, the prosecution failed to prove beyond a reasonable doubt that he possessed the requisite mental state for the imposition of the
death penalty. Third, Kemp claims that he was denied due
process under the Fourteenth Amendment when the prosecutor was dilatory in giving notice that he would introduce evidence that Kemp committed a homosexual sexual assault, the
trial court failed to rule the subsequent bad act admissible
until after the jury had been voir dired, and the trial court then
denied Kemp’s request to voir dire the jury on homosexual
bias. We affirm. Kemp has not shown that the Arizona
Supreme Court’s opinion affirming his conviction and capital
sentence was either “an unreasonable application of, clearly

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established Federal law,” or “an unreasonable determination
of the facts,” as required for relief under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254.
I
A.

Kemp’s Criminal Activities.

The underlying criminal acts were described as follows by
the district court:
On July 11, 1992, at approximately 11:15 p.m., Hector Juarez awoke when his fiancee, Jamie, returned
from work to their residence at the Promontory
Apartments in Tucson. A short time later, Juarez left
to get something to eat. Jamie assumed he went to a
nearby fast food restaurant.
At around midnight, Jamie became concerned that
Juarez had not come home and began to look for
him. She found both her car and his car in the parking lot. Her car, which Juarez had been driving, was
unlocked and smelled of fast food; the insurance
papers had been placed on the vehicle’s roof. After
checking with Juarez’s brother and a friend, Jamie
called the police.
Two or three days before Juarez was abducted, Jeffery Logan, an escapee from a California honor farm,
arrived in Tucson and met with Petitioner. On Friday, July 10, Logan went with Petitioner to a pawn
shop and helped him buy a .380 semi-automatic
handgun. Petitioner and Logan spent the next night
driving around Tucson. At some time between 11:15
p.m. and midnight, Petitioner and Logan abducted
Juarez from the parking area of his apartment complex.

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At midnight, Petitioner used Juarez’s ATM card and
withdrew approximately $200. He then drove Juarez
out to the Silverbell Mine area near Marana. Petitioner walked Juarez fifty to seventy feet from the
truck, forced him to disrobe, and shot him in the
head twice.
Petitioner then made two unsuccessful attempts to
use Juarez’s ATM card in Tucson. The machine kept
the card after the second attempt. Petitioner and
Logan repainted Petitioner’s truck, drove to Flagstaff, and sold it. They bought another .380 semiautomatic handgun with the proceeds.
While in Flagstaff, Petitioner and Logan met a man
and woman who were traveling from California to
Kansas. They abducted the couple and made them
drive to Durango, Colorado; in a motel room there,
Petitioner forced the man to disrobe and sexually
assaulted him.
Later, Petitioner, Logan, and the couple drove to
Denver, where the couple escaped. Logan and Petitioner separated. Logan subsequently contacted the
Tucson police about the murder of Juarez. He was
arrested in Denver.
With Logan’s help, the police located Juarez’s body.
Later that day, the police arrested Petitioner at a
homeless shelter in Tucson. He was carrying the
handgun purchased in Flagstaff and a pair of handcuffs. After having been read his Miranda rights,
Petitioner answered some questions before asking
for a lawyer. He admitted that he purchased a handgun with Logan on July 10. He said that on the day
of the abduction and homicide he was “cruising”
through apartment complexes, possibly including the
Promontory Apartments. When confronted with the

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ATM photographs, he initially denied being the individual in the picture. After having been told that
Logan was in custody and again having been shown
the photographs, Petitioner said, “I guess my life is
over now.”
B.

Kemp’s Incriminating Statements While in Jail.

After he was arrested, Kemp was advised of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966). Later in the
evening, Kemp was interviewed by Detective Salgado, but
when he was asked about his contact with Juarez, Kemp
invoked his right to counsel.
Kemp was taken to the Pima County Jail. During his stay
in the jail, Kemp made two incriminating statements. The district court described the events surrounding the statements as
follows:
John Jackson, an officer at the Pima County Jail,
walked by Petitioner’s cell in the disciplinary pod
and they had a three to five minute conversation.
Jackson did not recall who initiated the interaction.
During the conversation, Petitioner volunteered that
he had requested to be moved to the disciplinary pod
“because the guy I killed was a Mexican. That the
Mexicans in the pod were after him, and he wanted
to be moved from there for his own protection.” At
the time, Jackson did not write a report on the conversation.
Kippy Compton, a Pima County Sheriff’s Department correctional officer, recognized Petitioner from
a general population pod at the jail. On December
14, 1992, he transported Petitioner within the jail and
saw on his identification card that he was in AS1,
which is a protective custody status. Compton testified that he must have been off the day they were

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briefed about Petitioner’s status change; the officers
are briefed because they need to be aware of any
other inmate(s) the person may need to be kept away
from. Compton asked Petitioner why he was in AS1
and testified that Petitioner gave the following
response: “that Hispanic guy I killed or the guy I
killed was Hispanic and the Hispanic guys in the pod
think it’s racially motivated, and he — he said the
whites said they can’t help me or won’t help me, and
so I asked to be put on protective custody.” Compton
testified that he was not trying to ask Petitioner
about his case because the inmates are not going to
talk about their cases and he didn’t care. Compton
did not question Petitioner further, did not threaten
him, or make any promises to him. Compton testified that inmates are expected to respond when questioned by a correctional officer. After thinking about
it, Compton decided to write the conversation up in
a memo.
While Jackson was carpooling home with Compton
one evening, Compton mentioned his conversation
with Petitioner and then Jackson mentioned that he
had a similar statement from Petitioner. After that
conversation, Jackson prepared a report about his
conversation with Petitioner.
Kemp filed a pretrial motion to suppress the two statements
he had made to Jackson and Compton. The trial court held a
hearing on the motion at which both officers testified. The
state court found that Kemp’s statements to the officers were
voluntary and admissible because the conversations were
informal and they were not intended or designed to elicit
incriminating responses. The officers testified at trial consistent with their testimony at the suppression hearing.
C.

The Alleged Curtailment of Voir Dire.

In September 1992, Kemp, through his attorney, first
sought discovery with respect to possible prior and subse-

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quent bad acts that the prosecutor might seek to present at
trial. At a December 1992 pretrial hearing, the prosecutor
agreed to give Kemp a list of prospective witnesses and noted
that in the afternoon he would be interviewing the “couple
that were kidnaped out of Flagstaff.” On January 25, 1993,
Kemp filed a motion seeking discovery of evidence concerning the alleged kidnaping of the couple, which the trial court
granted.
Apparently, the State did not provide Kemp with the information requested, and on May 26, 1993, counsel filed two
motions in limine to preclude the presentation of any evidence
of any prior or subsequent bad acts by Mr. Kemp. One of the
motions specifically requested that the kidnaped couple “not
be allowed to testify as to any inappropriate sexual behavior
by Mr. Kemp towards [the husband].”
On June 2, 2003, the case was called for trial in the Superior Court of Arizona, in and for the County of Pima. The
judge was intent on selecting a jury, and when Kemp’s attorney, Mr. Larsen, noted that there were unresolved pretrial
motions, the court indicated that it intended to begin jury
selection “before we hear anything on the motion for change
of venue.” The prosecutor, Kenneth Peasley, tendered a new
witness list, which included the husband abducted in Flagstaff. He indicated that the husband would present evidence
concerning: (1) Kemp’s silence to statements made by Logan
in the husband’s presence; (2) the husband’s kidnaping; and
(3) that “in the room in Durango Mr. Kemp attempt[ed] to
sexually molest and assault” the husband. Peasley further
claimed that the sexual assault was “proof of all motives that
Mr. Kemp has for the killing, and also explains conditions
here in Tucson.” After Peasley’s comments, the trial judge
stated “I don’t need to hear from you on that now, Mr. Larsen.”
A little later, before potential jurors entered the courtroom,
Larsen reiterated that he wanted to know “prior to trial what

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physical evidence and exhibits” the prosecutor intends to use.
The prosecutor apparently stated that he intended to introduce
materials seized from Kemp, including photographs of naked
men, but would make no reference to Kemp’s sexually
explicit materials and alleged homosexual act in his opening
statement. The trial court indicated that the matter would be
considered later.
The trial court then asked the prosecutor and defense counsel whether they were ready to proceed and each answered
yes. The prospective jurors were sworn in and the judge proceeded to voir dire the jury panel. When the trial judge asked
counsel to pass on the panel, defense counsel stated that he
had a number of questions. Defense counsel requested a ruling on the evidence that the prosecutor sought to introduce
“regarding any sexual matters as it pertains to both [victims].”
Larsen was particularly concerned with the possible impact of
allegations of sexual molestation on a juror whose father-inlaw had been convicted of an incest charge. The trial judge
proceeded to ask additional questions of that juror, but did not
mention homosexuality. When defense counsel objected that
the questions did not begin “to approach what was necessary,”
the trial judge responded that Larsen had made his record.
After the jury was empaneled, the trial court considered the
outstanding motions. The judge, Larsen, and Peasley engaged
in an extended discussion of the prosecutor’s desire to have
the husband testify concerning Kemp’s alleged sexual assault
and to present other evidence of Kemp’s homosexuality. Larsen argued that the alleged incident was irrelevant and should
not be admitted as it might inflame the jury. At one point he
stated “if we are going to allow this — this onslaught of
homosexual activity I want to re-voir dire the jury. I want to
find out what their thoughts are on homosexuality.” The trial
judge eventually determined that the “sexual contact with [the
husband] is sufficiently relevant to allow that to be admitted
into evidence.” The trial judge, however, limited the other
evidence that could be admitted. The next day, defense coun-

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sel reiterated his objections to the admission of the evidence
of Kemp’s contact with the husband, and argued that it was
contrary to the court’s prior ruling that no prior bad acts were
to be used. Defense counsel, however, did not request further
voir dire of the jury.
D.

Kemp’s Sentencing.

On June 7, 1993, the jury returned verdicts finding Kemp
guilty of felony first-degree murder, armed robbery, and kidnaping. The matter proceeded to the sentencing hearing on
July 9, 1993. The judge indicated that he had read the presentence report and the memoranda submitted by the parties. The
court asked the prosecutor to argue with respect to Kemp’s
eligibility for the death penalty based on his conviction for
felony murder under Enmund v. Florida, 458 U.S. 782 (1982)
and Tison v. Arizona, 481 U.S. 137 (1987).1 The prosecutor
argued that the Enmund/Tison requirements were met by the
evidence that (a) Kemp bought the handgun that was used, (b)
Kemp made admissions to Detective Salgado concerning Juarez’s disappearance, (c) Kemp used Juarez’s ATM card, (d)
Juarez’s body was found only partially clothed, (e) the husband testified that Kemp attempted to sexually assault him,
and (f) Kemp admitted to two correctional officers that he
killed Juarez. Defense counsel responded that there was a lack
of physical evidence to connect Kemp to Juarez and that the
prosecutor’s case was compromised by statements made by
co-defendant Logan, who was completely unbelievable.
1

The district court explained:
In Enmund, the Supreme Court held that a felony murder defendant is eligible for the death penalty only if he actually killed,
attempted to kill, or intended to kill the victim. 458 U.S. at 797.
The Court subsequently expanded Enmund’s rule so that a felony
murder defendant could be sentenced to death if the defendant
was a major participant in the underlying felony and acted with
reckless indifference to human life. Tison v. Arizona, 481 U.S. at
157-58.

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The trial judge found Kemp eligible for the death penalty
under Enmund-Tison for his felony-murder conviction. After
considering all the evidence and argument proffered by the
parties, including Kemp’s statement,2 the trial judge found
that the prosecution had established three aggravating facts
beyond a reasonable doubt: (1) Kemp had been previously
convicted of a violent felony; (2) Kemp acted for the purpose
of pecuniary gain; and (3) the murder was committed in an
2

When Kemp was asked whether he wanted to say something in the way
of mitigation, he first indicated that he was pleased with the services of
his attorney and then stated:
The prosecutor, in his alleged wisdom, has portrayed me as being
a killer without remorse or regret. This is a wholly inaccurate
assessment. I feel a deep and abiding sense of remorse at having
permitted friendship to stay my hand in the face of wiser counsel;
thus electing not to kill Jeff Logan at a time when both instinct
and circumstances demanded his death.
You can rest assured that is a lapse of judgment I will never
repeat and one which I will bend all my energies towards correcting in the not too distant future. Beyond that, I regret nothing.
The media has engaged in an orgy of speculation and innuendo
concerning the events of mid-July ‘92. They printed and reported
every word spewed from Logan’s mouth as though they were
engraved in stone and handed down from God. They printed
every accusation Logan made, whether or not it had the slightest
bearing on this case, and at no time made any effort at verification.
I was convicted in the press and on the televised news long
before my case ever came to trial. Make no mistake, the day will
come when I return to Tucson. And on that day I will remember
all the kind things certain reporters had to say about me.
The so-called victim was not an American citizen and, therefore,
was beneath my contempt. Wetbacks are hardly an endangered
species in this state. If more of them wound up dead, the rest of
them would soon learn to stay in Mexico, where they belong.
I don’t show any mercy and I am certainly not here to plead for
mercy. I spit on the law and all those who serve it; most especially you, Peasley. I have more respect for Salgado than I have
for you.

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especially cruel manner. The judge further found that Kemp
had failed to show any mitigating factors, and concluded that
even if any of his assertions rose to the stature of a mitigating
factor, it would not be sufficient to call for leniency. The trial
court imposed a sentence of death “as prescribed by law for
the conviction for murder in the first degree.”
E.

State Post-Trial Proceedings.

On direct appeal, the Arizona Supreme Court affirmed
Kemp’s conviction and death penalty. State v. Kemp, 912
P.2d 1281 (1996). Among the many issues Kemp raised were
his challenges to the admission of his comments to the correctional officers. The Arizona Supreme Court rejected these,
explaining:
The trial judge’s finding that the statements were
voluntary was not clearly and manifestly wrong. See
State v. Scott, 865 P.2d 792, 797 (1993). The record
supports the finding that the corrections officials
were not attempting to overcome Kemp’s will to
induce him to inculpate himself. While Jackson and
Compton testified that inmates generally had to
respond to their inquiries, their questions concerned
only the “day to day” circumstances of his incarceration. Kemp was not obligated to make these admissions. Cf. Oregon v. Bradshaw, 462 U.S. 1039, 1045
(1983) (noting that inquiries between the accused
and the State “relating to routine incidents of the
custodial relationship[ ] will not generally ‘initiate’
a conversation in the sense in which that word was
used in Edwards [v. Arizona, 451 U.S. 477 (1981)
(holding that a request for a lawyer requires the
police to cease questioning until the accused consults
with his or her lawyer unless the defendant initiates
further conversation) ].”).
Kemp argues that Miranda requires the exclusion of
the statements because he had previously asserted

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his right to counsel. Edwards v. Arizona, 451 U.S.
477 (1981). But Miranda only applies to custodial
interrogation. Jackson and Compton did not attempt
to elicit an incriminating response from Kemp. See
Rhode Island v. Innis, 446 U.S. 291 (1980) (holding
that a comment made by one police officer to
another, in the presence of the accused, expressing
concern that handicapped children might come
across a shotgun, is not a statement designed to elicit
an incriminating response).
Compton only asked Kemp why he was in protective
custody. He did not interrogate him. Routine inquiries by guards concerning the security status of prisoners are not statements designed to elicit an
incriminating response. Id. Compton’s question was
reasonable and relevant to maintaining order in the
prison and protecting Kemp. Similarly, Kemp’s
statements to Jackson were the product of ordinary,
everyday interaction between guard and prisoner.
Because Kemp was not interrogated by Compton
and Jackson, the admission of his statements did not
violate Miranda and his rights under art. 2, § 24 of
the Arizona Constitution.
Kemp’s assertion that his Sixth Amendment Massiah
rights were violated fails for the same reason his
Miranda claim fails: the guards did not seek to elicit
incriminating evidence from him. Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986) (holding that “the
defendant must demonstrate that the police and their
informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks”). Kemp’s admissions therefore were
properly admitted.
912 P.2d at 1287.

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The Arizona Supreme Court also addressed Kemp’s arguments concerning the admission of his alleged assault of the
husband. It first held that even if evidence of the alleged
assault should have been excluded, its admission was harmless error because “Kemp’s conviction is supported by overwhelming evidence of his guilt, including his own statements
to the police and corrections officials.” Kemp, 912 P. 2d at
1288. The court further ruled:
Kemp also argues that the prosecutor did not timely
disclose that the subsequent homosexual assault
would be used against him. Before trial, the court on
two occasions ordered the State to disclose the bad
acts it would use. See Rule 15.1(a)(6), Ariz. R. Crim.
P. The State did disclose the victim of the subsequent homosexual assault as a possible witness
approximately six months before trial. While it never
provided Kemp with a list of his bad acts, Rule
15.1(a)(6) appears to apply to prior acts and not subsequent conduct. But even if Rule 15.1(a)(6) applies
here, there simply was no prejudice.
Discovery rulings are affirmed unless there is an
abuse of discretion. See State v. Krone, 897 P.2d
621, 624 (1995). Kemp argues that he was unable to
obtain a fair and impartial jury and he was unable to
develop any impeachment or motive evidence
against the victim of the subsequent homosexual
assault. We disagree.
First, the record is clear that Kemp’s trial counsel
was aware that Kemp’s homosexuality potentially
would be placed before the jury. Logan’s statements
to the police and media raised the issue. In addition,
Logan’s trial preceded Kemp’s, and the witness
Kemp sought to preclude testified regarding the
same events at Logan’s trial. Furthermore, Kemp
successfully suppressed other evidence of his homo-

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sexuality, including sexually explicit photographs
and a journal purportedly detailing his homosexual
encounters. Although Kemp did not have a ruling
regarding the bad act evidence prior to voir dire, he
was clearly aware of the issue, was not surprised,
and could have developed it at voir dire if he so
wanted.
Second, Kemp’s argument that he was unable to
develop impeachment or motive evidence is without
merit. The only connection the witness had to Kemp
was the misfortune of being his kidnaping, robbery,
and sexual assault victim. The witness was listed
approximately six months before Kemp’s trial and
testified about the same events at Logan’s trial.
There was no abuse of discretion.
Id.
In February 1999, Kemp filed a petition for post-conviction
relief with the trial court claiming ineffective assistance of
counsel. The trial court denied the petition in May 1999, and
in January 2000, the Arizona Supreme Court denied the petition for review.
F.

Federal Habeas Corpus Proceedings.

In January 2000, Kemp filed a pro se petition for a writ of
habeas corpus in the United States District Court for the District of Arizona. Proceedings were stayed to allow Kemp to
seek relief in state court pursuant to Ring v. Arizona, 536 U.S.
584 (2002), and in August 2003, the Federal Public Defender
was appointed as replacement counsel for Kemp.
In March 2005, the district court filed an order finding that
six of Kemp’s claims were procedurally defaulted, denying
relief on another count, and finding that one asserted claim
was not cognizable. In August 2006, Kemp moved for discov-

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ery and an evidentiary hearing concerning the circumstances
surrounding his statements to the correctional officers. After
briefing, the district court on September 17, 2007, denied the
request for discovery and an evidentiary hearing. The district
court agreed with the Arizona Supreme Court that Kemp’s
statements to the correctional officers were voluntary.3 It further determined that “[n]othing in the brief contacts between
either of the correctional officers and Petitioner was reasonably likely to elicit an incriminating response; the interactions
carry no indicia of an interrogation.” The district court also
determined that Kemp’s right to counsel was not violated by
the communications with the correctional officers. In addition, the court held that “[b]ecause listening-in on conversations and reporting them is not unconstitutional,” there was no
good cause for the requested discovery.
The district court also rejected Kemp’s Enmund-Tison
claim. The court noted that the state court’s factual findings
including the jury’s special verdict that Kemp “intended to
kill and did kill the victim” are presumed correct. The district
court found that the totality of the evidence, including Kemp’s
statements to the correctional officers, was more than sufficient to allow a rational factfinder to “find that Petitioner
killed, intended to kill or was a major participant in the under3

The district court commented:
First, there is no clear evidence that Jackson posed any question
to Petitioner; Jackson does not recall who initiated the conversation and testified that Petitioner volunteered the statement about
his housing status. Second, the fact that Petitioner was obligated
to respond to either Compton and/or Jackson, in no way indicated
that his incriminating responses were coerced. Petitioner could
have truthfully and appropriately answered questions regarding
why he was in a protective custody status without incriminating
himself. Even if answering necessarily required a response
regarding the crime with which he was charged, it did not
require an admission about guilt. Nothing in the circumstances of
Petitioner’s statements indicates that his will was overborne.
(emphasis in original).

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lying felony and acted with reckless indifference to human
life.”
On September 11, 2008, the district court issued a Memorandum of Decision and Order denying the remaining claims
in Kemp’s habeas petition. The court rejected Kemp’s claim
to voir dire regarding homosexuality for several reasons.
First, it found that “the record plainly shows that prior to voir
dire the defense was on notice that the sexual assault victim
was a potential witness whose testimony would address the
subsequent bad act.” Second, it held that “[e]ven assuming the
existence of Supreme Court precedent applying the same voir
dire requirements with respect to issues of race and sexuality,
such voir dire was not required in Petitioner’s case because
the sentencing was not carried out by the jury but by the trial
judge.” Third, the court determined that Kemp’s “homosexuality was not ‘inextricably bound up with’ his case to the
extent that specific inquiry into the issue of homosexuality
was required,” and that “the issue of homosexuality was not
bound up with the defense; nor did the trial involve allegations of homosexual prejudice.” Finally, the trial court concluded, citing Mu’Min v. Virginia, 500 U.S. 415 (1991), that
Kemp “has not shown that the lack of voir dire on the issue
of homosexuality rendered his trial ‘fundamentally unfair.’ ”
The district court on September 29, 2008, certified three
issues for appeal:
Whether Claim 2 of the Amended Petition — alleging that Petitioner’s right to a fair and unbiased jury
was violated by the trial court’s refusal to allow voir
dire on the issue of homosexual bias — is meritorious.
Whether Claim 3 of the Amended Petition — alleging that the admission of Petitioner’s statements to
two correctional officers was unconstitutional — is
meritorious.

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Whether Claim 12 — alleging that there was insufficient evidence to support a finding of death eligibility if the statements of the correctional officers had
been excluded — is meritorious.
Kemp filed a timely notice of appeal on October 27, 2008.
II
A district court’s denial of a § 2254 habeas petition is
reviewed de novo. Waldron-Ramsey v. Pacholke, 556 F.3d
1008, 1011 (9th Cir. 2009); Pham v. Terhune, 400 F.3d 740,
741 (9th Cir. 2005) (per curiam). The district court’s findings
of fact are reviewed for clear error, Bonin v. Calderon, 59
F.3d 815, 823 (9th Cir. 1995), legal conclusions are reviewed
de novo, Jackson v. Brown, 513 F.3d 1057, 1069 (9th Cir.
2008), and we may affirm on any ground supported by the
record. Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.
2004).
Because Kemp’s federal habeas petition was filed after the
effective date of AEDPA, relief can only be granted if the
state court decision either:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). See Williams v. Taylor, 529 U.S. 420,
429 (2000).
III
Kemp raises three arguments on appeal: (1) his rights to be
free from compelled self-incrimination under the Fifth

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Amendment and to counsel under the Sixth Amendment were
violated when the correctional officers stimulated conversations with him and elicited incriminating statements that were
admitted at trial; (2) without his statements to the correctional
officers there is insufficient evidence to support the imposition of a capital sentence under Enmund, 458 U.S. 782, and
Tison, 481 U.S. 137; and (3) he was denied due process when
the prosecutor was dilatory in giving notice that he would
introduce evidence that Kemp committed a homosexual
assault subsequent to the murder and Kemp was denied the
opportunity to voir dire the jury on homosexual bias.
A.

Admission of Kemp’s Incriminating Statements
Did Not Violate His Rights Under the Fifth and
Sixth Amendments.

Kemp advances two lines of argument to support his claim
that his incriminating statements should not have been admitted. First, he argues that the Arizona Supreme Court unreasonably applied Edwards, 451 U.S. 477, to his case. Second,
he argues that because the record is “devoid of all facts necessary to determine what the officers intended” the district court
should have granted his request for further discovery and an
evidentiary hearing. We determine that the Arizona Supreme
Court did not render a decision that was contrary to or an
unreasonable application of the controlling Supreme Court
cases and that the district court did not err in denying Kemp
further discovery and an evidentiary hearing.
1.

The Arizona Supreme Court did not unreasonably
apply clearly established Federal law.

Kemp argues, citing Edwards, 451 U.S. at 484-85, that the
Supreme Court set forth a clear rule that once a defendant in
custody has expressed his desire to deal with the police only
through counsel, the officers may not ask any further questions. He contends that only the accused may initiate a conversation in order for there to be a valid waiver of the

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accused’s rights. Kemp claims that the court’s reliance on
Bradshaw, 462 U.S. at 1045, was faulty because in that case
only a plurality of the Supreme Court stated, in dicta, that
police may lawfully initiate conversations after an accused
had invoked his Fifth Amendment right to remain silent.
Kemp further asserts that cases relied on by the Arizona
Supreme Court, such as Innis, 446 U.S. 291, are distinguishable because they involve situations where the accused initiated communications.
[1] We do not agree with Kemp’s reading of the controlling Supreme Court opinions. In Innis, the Supreme Court
reiterated that the term “interrogation” under Miranda “refers
not only to express questioning, but also to any words or
actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating
response.” Id. at 301 (emphasis added). The Court further
noted that “[i]nterrogation . . . must reflect a measure of compulsion above and beyond that inherent in custody itself.” Id.
at 300. It also noted that “since the police surely cannot be
held accountable for the unforeseeable results of their words
or actions, the definition of interrogation can extend only to
words or actions on the part of police officers that they
should have known were reasonably likely to elicit an
incriminating response.” Id. at 301-02 (emphasis in original).
[2] The Arizona Supreme Court held that Miranda did not
apply because Compton only asked Kemp why he was in protective custody and did not interrogate Kemp. Kemp, 912 P.2d
at 1286-87. Such an inquiry qualifies as a question that is
“normally attendant to . . . custody,” and thus, not covered by
Miranda. The Arizona Supreme Court’s application of Innis
was not “an unreasonable application of clearly established
Federal law” under § 2254(d)(1).
The reasonableness of the Arizona Supreme Court’s perspective is supported by the plurality opinion in Bradshaw.
Then-Justice Rehnquist writing for four Justices commented:

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While we doubt that it would be desirable to build a
superstructure of legal refinements around the word
“initiate” in this context, there are undoubtedly situations where a bare inquiry by either a defendant or
by a police officer should not be held to “initiate”
any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a
request to use a telephone that are so routine that
they cannot be fairly said to represent a desire on the
part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an
accused or a police officer, relating to routine incidents of the custodial relationship, will not generally
“initiate” a conversation in the sense in which that
word was used in Edwards.
462 U.S. at 1045. Admittedly, this position was adopted by
only a plurality of the Court. However, the fact that four
Supreme Court Justices believe that “a bare inquiry by . . . a
police officer should not be held to ‘initiate’ any conversation” affirms that a similar perspective by the Arizona
Supreme Court is not unreasonable.4
[3] Because the Arizona Supreme Court’s holding that the
questions by the correctional officers did not constitute “interrogations” under Innis was not an unreasonable application of
that precedent, Kemp’s claim under Massiah v. United States,
377 U.S. 201 (1964), must also fail, since nothing in the
record or Supreme Court case law indicates that the specific
type of custody-related inquiry at issue here was “designed
deliberately to elicit incriminating remarks,” Kuhlmann v.
4

See Murdoch v. Castro, 609 F.3d 983, 991-93 (9th Cir. 2010) (en banc)
(“[W]hen there is a principled reason for the state court to distinguish
between the case before it and Supreme Court precedent, the state court’s
decision will not be an unreasonable application of clearly established
Supreme Court law.”).

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Wilson, 477 U.S. 436, 459 (1986). Accordingly, the Arizona
Supreme Court’s reasonable application of “clearly established Federal law” with regard to Kemp’s Fifth Amendment
claim, is also a reasonable application of the law with regards
to his Sixth Amendment claim.5
2.
a.

The Arizona Supreme Court’s factual determinations
are not unreasonable.
Kemp’s contentions.

Kemp does not directly challenge the state courts’ determination that the officers did not attempt to elicit incriminating
responses and did not interrogate him. Instead, Kemp contends that the district court should have granted his request for
further discovery.6 Kemp sought discovery in order to prove
that contrary to the factual determination of the state courts,
the correctional officers “engaged him in conversations in
order to acquire incriminating information about his case.”
Kemp claims that the information sought would show that
officers were trained to intentionally eavesdrop on and memorialize conversations with inmates, and to provide inmate
statements to the Pima County Attorney.
5

Our conclusion is also supported by the Supreme Court’s opinion in
Montejo v. Louisiana, 129 S. Ct. 2079 (2009). In Montejo, the Supreme
Court overruled the rule announced in Michigan v. Jackson, 475 U.S. 625
(1986), “forbidding police to initiate interrogation of a criminal defendant
once he has requested counsel at an arraignment of similar proceeding.”
Id. at 2082. Instead, the Court held that the prophylaxis afforded by
Miranda and Edwards were sufficient. Id. at 2090. The Court commented
that because the right to be free from compelled self-incrimination and the
right to counsel are “waived using the same procedure, . . . doctrines
ensuring voluntariness of the Fifth Amendment waiver simultaneously
ensure the voluntariness of the Sixth Amendment waiver.” Id.
6
Kemp sought to depose Officers Compton and Jackson, and requested
subpoenas for records of the Pima County Jail, Pima County Sheriff’s
Office, and the Pima County Attorney’s Criminal Division for the period
1990 through 1993.

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In support of his discovery request, Kemp asserted that in
a Pima County capital murder trial held prior to his trial, a
correctional officer testified that: (1) he overheard a conversation between the defendant and another jail inmate; (2) there
was paper and a writing instrument available to him to memorialize the conversation; and (3) the highly incriminating
statements were passed on to the Pima County Attorney’s
office for use in the prosecution.7 See State v. Eastlack, 883
P.2d 999, 1008 (Ariz. 1994). He further claims that in another
Pima County capital case, State v. Moody, 94 P.3d 1119, 1142
(Ariz. 2004), a Pima County correctional officer was ordered
to keep an eye on an inmate and subsequently testified as to
the inmate’s incriminating statements. Kemp argues that “evidence that correctional officers are trained to question inmates
about their cases and memorialize the inmates’ responses to
such questioning would seriously undermine the state courts’
determinations that Compton and Jackson’s contact with
Kemp did not constitute interrogation about his case.”
Kemp further notes that the prosecutor in his case, Peasley,
was subsequently disbarred for suborning perjury from a
police detective in another capital prosecution in Pima
County. See In re Peasley, 90 P.3d 764, 778 (Ariz. 2004).
Kemp argues that given Peasley’s track record, the district
court should have allowed him to explore the relationship
between Peasley and the two correctional officers.
Kemp argues that he demonstrated good cause for discovery as required by Rule 6(a) of the Rules Governing Habeas
Proceedings in the District Courts. He claims he has made the
requisite showings of credible allegations of a constitutional
violation and that the discovery would enable him to investigate and prove his claim. He asserts that the Supreme Court’s
opinion in Missouri v. Seibert, 542 U.S. 600 (2004), acknowl7

Kemp notes that the prosecutor in that case was later disciplined for
unethical behavior in a homicide prosecution, see In re Zawada, 92 P.3d
862 (Ariz. 2004).

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edges the relevance of law enforcement training with respect
to interrogations. Here, Kemp claims that discovery is necessary because of the possible subtle means of interrogation
employed in the Pima County Jail. Moreover, an evidentiary
hearing is allegedly necessary because the district court had
insufficient evidence to appreciate why the evidence produced
at the state suppression hearing was inadequate.
Kemp admits that he did not develop the factual basis for
discovery in the state courts, but argues that this was not the
result of a lack of diligence. He asserts that his trial counsel
“was not reasonably on notice, based on the suppression hearing testimony, that evidence might have existed in the form
of the officers’ training or the existence of printed or video
training materials that would have undermined the testimony
given by Officers Compton and Jackson.” Kemp contends
that the correctional officer’s testimony in Eastlack, which
was given less than two years before his trial, “could not have
been reasonably known to Kemp’s trial counsel because that
testimony was not mentioned in the Arizona Supreme Court’s
decision in that case.” Kemp claims that it was “mere fortuity” that his present counsel learned of the officer’s testimony
in Eastlack, and argues that where “a capital habeas petitioner
learns by sheer happenstance of the existence of facts that
might have supported a claim in state court, he cannot be
determined to have lacked diligence in developing the supporting facts for his claim.”
Based on the foregoing, Kemp asserts that he “met the burden of establishing ‘good cause’ for the discovery he sought,
and the district court abused its discretion in failing to allow
discovery.”
b.

The district court reasonably denied Kemp’s discovery
request and request for an evidentiary hearing.

[4] We first consider whether AEDPA bars Kemp from
having an evidentiary hearing on his claim that correctional

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officers deliberately elicited incriminating statements, in violation of his Sixth Amendment rights. If AEDPA imposed
such a bar in this case, the petitioner could not show good
cause, and the district court would not have abused its discretion by denying Kemp’s discovery request.8
[5] Section 2254(e)(1) of AEDPA bars most evidentiary
hearings if the applicant “failed” to develop the factual basis
for the claim in state court. In this context, “failed” “connotes
some omission, fault, or negligence on the part of the person
who has failed to do something.” Williams, 529 U.S. at 43132. If the petitioner is not at fault (as defined for purposes of
§ 2254(e)(1)), we evaluate the propriety of an evidentiary
hearing under the factors prescribed by Townsend v. Sain, 372
U.S. 293 (1963), overruled on other grounds, Keeney v.
Tamayo-Reyes, 504 U.S. 1, 5 (1992). Earp v. Ornoski, 431
F.3d 1158, 1166 (9th Cir. 2005).
If the court determines that the applicant did fail to develop
the factual basis for a claim in state court, the district court
can hold an evidentiary hearing only if the petitioner meets
two demanding requirements: First, the claim must rely on a
rule of constitutional law newly announced by the Supreme
Court and available to habeas petitioners, 28 U.S.C.
§ 2254(e)(2)(A)(I), or must be based on facts that “could not
have been previously discovered through the exercise of due
diligence,” § 2254(e)(2)(A)(ii). Second, even if a petitioner
raises a new claim or one based on a new factual predicate,
a hearing is required only if “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 applicant guilty of the underlying
offense.” § 2254(e)(2)(B).
8

Habeas Corpus Rule 6(a) allows parties to “invoke the processes of
discovery available under the Federal Rules of Civil Procedure if, and to
the extent that, the judge in the exercise of his discretion and for good
cause shown grants leave to do so, but not otherwise.”

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[6] Our first inquiry, then, is whether Kemp “failed to
develop the factual basis of [his] claim in State court proceedings.” § 2254(e)(2). Kemp admits that he did not develop his
claims in the state courts but claims that his course of action
was reasonable, and hence not a “failure” within the meaning
of § 2254(e)(2), because he did not have necessary information while his case was still in state court.9 This argument
fails, because the information that, according to Kemp, provided a new basis for his claim that the officers deliberately
elicited incriminating information, does not actually provide
such a basis. He has only the officer’s testimony in Eastlack,
883 P.2d 999, allegations concerning the proceedings in
Moody, 94 P.3d 1119, and the attorney discipline actions
against prosecutors Peasley and Zawada.
[7] None of these support the assertion that there was a
policy in the Pima County Jail to subtly interrogate the
inmates. The officer in Eastlack only testified that (a)
Eastlack was speaking to another inmate in a loud voice and
refused to lower his voice, (b) he recorded the conversation
because it struck him as interesting that Eastlack was talking
about his case, and (c) note paper was available for whatever
need there might be, not just for recording incriminating statements. Eastlack, 883 P.2d at 1008. Similarly, in Moody, the
officer was sitting approximately fifteen feet from Moody,
who knew he was there and made no effort to lower his voice
or speak softly. 94 P.3d at 1143. The Arizona Supreme Court
held that there was “no surreptitious eavesdropping, recording, or reporting of communications” and that the trial court
could “reasonably have concluded that Moody waived the
9

Arizona, in addition to contesting Kemp’s request for discovery on its
merits, argues that Kemp should have developed his claim in collateral
proceedings in state court, but failed to do so. Arizona also asserts that
Kemp’s assertion that he was entitled to discovery is not properly before
the court because it was not included as an issue in the Certificate of
Appealability. We determine that the denial of discovery is encompassed
within the grant of a certificate on the question of the admission of
Kemp’s statements to the two correctional officers.

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confidentiality of the communication with his attorney by
making no effort to safeguard the content of his conversation.” Id. at 1144. Thus, neither case suggests that there was
any policy of deliberately eliciting incriminating information
from inmates.
Furthermore, Kemp’s assertion of a policy of deliberately
eliciting incriminating information is not advanced by the reference to the attorney discipline actions against Zawada and
Peasley. Peasley’s unethical behavior concerned an officer
stating under oath that he had not known that a person was a
suspect, when he had. See Peasley, 90 P.3d at 769. Zawada
was disciplined for knowingly implying unethical conduct by
expert witnesses without supporting evidence. See Zawada,
92 P.3d at 867. In neither case is there anything that suggests
the existence of a policy of interrogating inmates.10
[8] As the above discussion shows, none of the “evidence”
that Kemp has acquired since his conviction even remotely
supports his assertion of a policy of deliberate subtle elicitation of information by Pima County correctional officers. The
only salient fact Kemp has to buttress his claim is that two
correctional officers spoke with him and both eventually
made a report of that conversation, yet that information was
available to him before his original criminal trial. He thus
possessed all relevant information that would support his
claim well before the conclusion of his state proceedings.
Accordingly, Kemp has “failed” to develop the bases of his
claim and it is barred under § 2254(e)(1) unless he can satisfy
10

Moreover, the officers’ trial testimony was to the contrary. Jackson
testified that he did not recall who initiated his conversation with Kemp,
he did not talk to his supervisor about the conversation, and did not memorialize the conversation for some time. Compton testified that he needed
to know why Kemp was in protective custody and was not trying to ask
Kemp about his case. Both Jackson and Compton testified under oath in
the state court proceedings and there is nothing, other than Kemp’s unsupported allegations, to suggest that either testified in a misleading or dishonest manner.

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the strictures of § 2254(e)(2)(A)-(B).11 Kemp, however, cannot meet this demanding standard. His claim does not rely on
a new rule of constitutional law available to habeas petitioners. § 2254(e)(2)(A)(I). Moreover, because Kemp has not
shown that his failure to develop the factual basis for his
claim in state court was due to the discovery of new information not available until after trial, Kemp has also failed to
show a “a factual predicate that could not have been previously discovered through the exercise of due diligence,”
§ 2254(e)(2)(A)(ii).
[9] Because Kemp is not entitled to an evidentiary hearing,
the district court did not err in denying his request for discovery, as well as his request for a hearing. First, because the district court was not authorized to hold an evidentiary hearing
on Kemp’s deliberate elicitation claim, obtaining discovery on
that claim would have been futile. Moreover, Kemp’s claim
of a jail-wide policy of eliciting incriminating statements has
many of the indicia of an improper “fishing expedition,” and
the desire to engage in such an expedition cannot supply
“good cause” sufficient to justify discovery. See Rich v. Calderon, 187 F.3d 1064, 1067-68 (9th Cir. 1999) (noting that in
habeas proceedings discovery is only available “in the discretion of the court and for good cause shown” and is not “meant
to be a fishing expedition for habeas petitioners to explore
their case in search of its existence.”) (internal quotation
marks omitted). Accordingly, the district court’s discovery
denial also was not an abuse of discretion.
11

Even if Kemp had not failed to develop the bases of his claim, he still
would not be entitled to an evidentiary hearing because he cannot satisfy
Townsend’s requirement of “alleg[ing] specific facts which, if true, would
entitle him to relief.” Earp, 431 F.3d at 1167 & n.4 (emphasis added).
Kemp’s vague assertions of a policy of deliberate elicitation cannot, without greater detail or a shred of substantial supporting evidence, amount to
a colorable claim. He therefore would not be entitled to an evidentiary
hearing even if he overcame the “failure” bar of § 2254(e)(2).

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B.

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Because Kemp’s Incriminating Statements Were
Admissible, There is Sufficient Evidence to Support
the Imposition of the Death Penalty Under Enmund
and Tison.

[10] Kemp’s argument that there was insufficient evidence
to support the imposition of the death penalty was based on
his claim that his incriminating statements were not admissible. Our determination that his statements were admissible
disposes of his arguments under Enmund and Tison. We need
not consider whether Kemp’s assertion would have been persuasive if the statements were inadmissible, but we do conclude that with those statements there is no constitutional
barrier to affirming his sentence.
In Enmund, the Supreme Court held that the death penalty
could not be imposed on a defendant who “aids and abets a
felony in the course of which a murder is committed by others
but who does not himself kill, attempt to kill, or intend that
a killing take place or that lethal force will be employed.” 458
U.S. at 797. In Tison, the Supreme Court stated that “the reckless disregard for human life implicit in knowingly engaging
in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may
be taken into account in making a capital sentencing judgment
when that conduct causes its natural, though also not inevitable, lethal result.” 481 U.S. at 157-58.
[11] Here, the evidence, including Kemp’s incriminating
statements, is more than sufficient to support the state courts’
determination that Kemp possessed the requisite culpable
mental state to allow the imposition of a capital sentence.
C.

Kemp Was Not Denied Due Process By the Trial
Court’s Failure to Allow Him to Re-voir dire the
Jury on Possible Homosexual Bias.

Kemp asserts that the Due Process Clause of the Fourteenth
Amendment guarantees a defendant not only an impartial

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jury, but also an adequate voir dire in order to identify
unqualified jurors. See Morgan v. Illinois, 504 U.S. 719, 729
(1991) (“part of the guarantee of a defendant’s right to an
impartial jury is an adequate voir dire to identify unqualified
jurors”). Kemp recognizes that to be constitutionally compelled, it is not enough that voir dire questions might have
been helpful, rather the failure to ask the questions “must render the defendant’s trial fundamentally unfair.” Mu’Min, 500
U.S. at 425-26.
Kemp asserts that homosexual bias is similar to racial bias.
He notes that in Ham v. South Carolina, 409 U.S. 524, 52527 (1973), the Supreme Court held that voir dire on racial bias
was constitutionally compelled where an African American
civil rights advocate’s defense to criminal drug charges was
that he was framed due to his prominence in the community.
Kemp claims his trial was fundamentally unfair because the
trial court refused to allow him to re-voir dire the jury after
the court denied his motions in limine that would have barred
introduction of the subsequent homosexual assault of the husband. Kemp argues that the prosecutor was dilatory in giving
the required notice that he intended to introduce evidence of
Kemp’s homosexual assault of the husband, and was
rewarded for his gamesmanship when the trial court allowed
the evidence to be admitted. Kemp further argues that his
homosexuality was bound up with the conduct of the trial.
The prosecutor argued to the jury that Kemp’s homosexuality
and alleged desire to engage in homosexual activities served
as a motive for the kidnaping and murder of Juarez. The prosecutor introduced the husband’s testimony to prove a homosexual assault, and in his closing argument, told the jury that
Kemp’s homosexual drive was behind the kidnap and murder
of Juarez as well as his attack on the husband.
Kemp contends that it would have been “fundamentally
unfair to have required Kemp’s counsel needlessly to interject
his client’s homosexual orientation into the voir dire, with the

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potential for prejudice it held, were the trial court ultimately
to have ruled the homosexual assault on [the husband] inadmissible.”
Kemp has the burden of showing that the Arizona Supreme
Court’s decision upholding the trial court’s decision not to revoir dire the jury was contrary to or an unreasonable application of clearly established Supreme Court precedent. He cannot make this showing. Even in the cases cited by Kemp, the
Supreme Court emphasizes that voir dire “is conducted under
the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.” Morgan, 504 U.S. at 729.
See also Mu’Min, 500 U.S. at 427 (“our own cases have
stressed the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other
areas of inquiry that might tend to show juror bias”). When
a state court is asked to apply a general standard, such as the
Strickland standard for ineffective assistance or the “fundamental unfairness” standard at issue here, state courts get even
greater “leeway” than is standard under our alreadydeferential AEDPA framework. Knowles v. Mirzayance. 129
S. Ct. 1411, 1420 (2009); accord Cullen v. Pinholster, 131 S.
Ct. 1388, 1403 (2011); and Harrington v. Richter, 131 S. Ct.
770, 786 (2011).
[12] Kemp has not made either the legal or factual showing necessary to satisfy § 2254(d). Kemp’s attempt to equate
bias against homosexuals with racial prejudice is not persuasive. In Ham, the Supreme Court held that an inquiry as to
racial prejudice was constitutionally compelled in that case,
but that “[g]iven the traditionally broad discretion accorded to
the trial judge in conducting voir dire,” Ham’s constitutional
rights were not violated when the judge refused to question
the jury about prejudice against beards. 409 U.S. at 528. In
Mu’Min, the Supreme Court commented
We enjoy more latitude in setting standards for voir
dire in federal courts under our supervisory power

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than we have in interpreting the provisions of the
Fourteenth Amendment with respect to voir dire in
state courts. But two parallel themes emerge from
both sets of cases: First, the possibility of racial prejudice against a black defendant charged with a violent crime against a white person is sufficiently real
that the Fourteenth Amendment requires that inquiry
be made into racial prejudice; second, the trial court
retains great latitude in deciding what questions
should be asked on voir dire.
500 U.S. at 424. In Ristaino v. Ross, 424 U.S. 589 (1976), the
Supreme Court held that it was not always necessary to voir
dire a jury on racial prejudice, even when the victim was
white and the defendants were black. Id. at 597.
[13] Kemp has not offered any case law holding that
homophobia should be elevated to the same level as racial
prejudice. In light of the Supreme Court’s affirmance of the
discretion granted the trial court and its suggestion that voir
dire on racial prejudice is not always constitutionally compelled, even when the victim and the defendant are of different races, Kemp has failed to show that the Arizona Supreme
Court contravened or unreasonably applied “clearly established Federal law” in rejecting his challenge to the trial
court’s failure to re-voir dire the jury on possible homosexual
bias.
[14] The record also does not support Kemp’s claim that
he was denied due process. First, a review of the record shows
that trial counsel never asked to re-voir dire the jury. After the
selection of the jury, during argument on outstanding motions,
counsel stated “if we are going to allow this — this onslaught
of homosexual activity I want to re-voir dire the jury.” However, when the trial court ruled that it would exclude some
evidence of homosexual activity, but would allow in other
evidence, Kemp’s counsel did not ask to re-voir dire the jury.

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[15] Second, the record supports the determinations by the
Arizona Supreme Court and the district court that Kemp’s
counsel was aware that Kemp’s homosexuality potentially
would be placed before the jury. See Kemp, 912 P.2d at 1288.
Juarez was found in the desert shot in the head twice and
wearing only his socks. Logan’s statements to the police and
the media raised Kemp’s homosexual proclivity as an explanation for Juarez’s attire. Moreover, the prosecutor indicated
well before trial that he was inclined to call the husband and
that he would seek to introduce other evidence of Kemp’s
homosexuality. Even assuming that the trial judge should
have ruled on Kemp’s in limine motion before picking a jury,
Kemp’s counsel cannot reasonably claim that he was not
aware that evidence concerning Kemp’s homosexuality would
be admitted at trial.
[16] Third, despite Kemp’s claim that his alleged homosexuality was central to the case, the critical evidence of the
murder did not concern homosexuality. The critical evidence
consisted of the videotape of Kemp using Juarez’s ATM card,
his admission to Detective Salgado, and his incriminating evidence to the correctional officers. None of this evidence had
anything to do with his homosexuality.12
[17] Fourth, as noted by the district court, the jury did not
participate in the sentencing proceeding. The fact that the sentence was determined by the judge, rather than the jury,
reduces the impact of any latent bias by any member of the
jury. Accordingly, the Arizona Supreme Court’s decision was
not predicated on an unreasonable determination of the facts.
See § 2254(d)(2).
12

Kemp’s argument that his alleged homosexuality was central to the
case undercuts his argument that he was prejudiced by the trial court’s
failure to re-voir dire the jury. If homosexuality was bound up in the case,
then Kemp presumably knew this from the time of the indictment and the
failure to include any question regarding homosexuality in the initially
requested voir dire questions would appear to have been a strategic choice.

Case: 08-99030 04/28/2011 Page: 34 of 34

5516

ID: 7732650 DktEntry: 33-1

KEMP v. RYAN

[18] In sum, Kemp has failed to show that the trial court’s
alleged failure to allow him to re-voir dire the jury as to possible bias against homosexuals was an unreasonable application
of clearly established Supreme Court law or an unreasonable
determination of the facts. He is not entitled to habeas relief
on this claim.
IV
Kemp has not carried his burden of showing that he is entitled to relief on his appeal from the district court’s denial of
his habeas petition. Because his petition was filed after the
effective date of the AEDPA, relief can only be granted if the
state court unreasonably applied clearly established federal
law or unreasonably determined the facts. 28 U.S. § 2254(d).
Kemp has failed to show that the Arizona Supreme Court
acted unreasonably under either of these criteria in rejecting
his arguments that admission of his incriminating statements
to correctional officers violated his rights under Miranda and
Massiah. He has not shown that the district court abused its
discretion in denying his request for discovery and an evidentiary hearing because he did not establish “specific facts
which, if true, would entitle him to relief.” Earp, 431 F.3d at
1167 n.4. We do not reach Kemp’s claim that if his incriminating statements are excluded there is insufficient evidence
to support the imposition of the death penalty under
Enmund/Tison, because we hold that the statements are
admissible and that the evidence presented, including the
statements, provides a sufficient basis for the imposition of a
capital sentence. Finally, Kemp has not shown that the trial
court’s alleged failure to re-voir dire the jury as to homosexual bias was contrary to, or an unreasonable application of,
clearly established Supreme Court precedent. See Mu’Min,
500 U.S. at 425-26. Accordingly the district court’s denial of
Kemp’s habeas petition is
AFFIRMED.