Dwayne Woods v. Stephen Sinclair

Filing

FILED OPINION (RICHARD A. PAEZ, RICHARD C. TALLMAN and MILAN D. SMITH, JR.) AFFIRMED. Judge: RAP Authoring. FILED AND ENTERED JUDGMENT. [7850884]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DWAYNE ANTHONY WOODS,
Petitioner-Appellant,
v.
STEPHEN SINCLAIR,
Respondent-Appellee.





No. 09-99003
D.C. No.
2:05-CV-00319-LRS
OPINION

Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, Chief District Judge, Presiding
Argued and Submitted
March 4, 2010—Portland, Oregon
Filed August 10, 2011
Before: Richard A. Paez, Richard C. Tallman and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Paez

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COUNSEL
Suzanne Lee Elliott, Law Offices of Suzanne Lee Elliott,
Seattle, Washington, and David B. Zuckerman, Law Offices
of David B. Zuckerman, Seattle, Washington, for petitionerappellant Dwayne Anthony Woods.
John Joseph Samson, Assistant Attorney General, Olympia,
Washington, for respondent-appellee Stephen Sinclair.

OPINION
PAEZ, Circuit Judge:
In 1997, a Washington jury found Dwayne A. Woods
guilty of two counts of aggravated murder in the first degree,
one count of attempted murder in the first degree, and one
count of attempting to elude a police vehicle. After two days
of deliberation, the jury sentenced Woods to death. The
Washington State Supreme Court upheld his conviction and
sentence, State v. Woods, 23 P.3d 1046 (Wash. 2001), and
denied his petition for post-conviction relief, In re Woods,

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114 P.3d 607 (Wash. 2005). Woods then filed a petition for
a writ of habeas corpus in federal district court, which was
denied. Woods appeals the denial of habeas relief, contending
that (1) he was denied his Sixth Amendment right to represent
himself, (2) the state court’s admission of certain evidence
violated the Confrontation Clause, (3) the State withheld
material, exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and (4) his trial counsel’s representation was ineffective.1 We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
I.

THE CRIME2

On Friday, April 26, 1996, Telisha Shaver was housesitting at her aunt’s trailer home in Spokane Valley, Washington. Telisha3 planned to spend the night at her boyfriend’s
home, but had agreed to let her sister, Venus, and Venus’s
friend, Jade Moore, spend the night at the trailer. Venus and
Jade arrived at the trailer at approximately 1:45 a.m. on Saturday morning. The women drank alcohol and socialized. At
some point, Venus and Jade decided to contact Dwayne
Woods, whom Venus had previously dated. After the women
paged Woods, he eventually joined them at the trailer. By that
time, approximately 4:20 a.m., Jade was asleep.
1
Woods also alleges that the State violated his due process rights when
it misled the court and defense as to the progress of a DNA test during
several hearings. This claim, claim 6.1 in Woods’s federal habeas petition,
was not included in the Certificate of Appealability (“COA”). Although
the prosecution failed to act with proper diligence in the completion of the
DNA testing, we agree with the State that there was no prejudice from any
failure timely to notify Woods of the reasons for the delay. Because we
conclude that the claim lacks merit, we decline to grant a COA.
2
This factual background is taken largely from the Washington State
Supreme Court’s opinion affirming Woods’s conviction and sentence. See
Woods, 23 P.3d at 1053-59.
3
In this opinion we frequently refer to Telisha and Venus Shaver by
their first names for the sake of clarity. We also refer to Jade Moore by
her first name to avoid confusion with her father, Barry Moore.

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While at the trailer, Woods served himself alcohol and
talked with Venus. According to Venus’s testimony, Woods
was upset that Jade was asleep and urged Venus to wake her
up. Venus tried to wake Jade up, but Jade did not respond. At
this, Woods became irate and, according to Venus, shoved her
onto the couch and attempted to unbutton her pants. Venus
said that she initially escaped Woods’s grasp, but that he managed to grab her again and then slammed her head and neck
against a door. Venus testified that she has no memory of
what transpired from that point forward except for intermittent flashes of memory in which she recalls struggling with
Woods.
At approximately 7:30 a.m., Woods forced Jade to wake up
at knife point. He took her to another one of the bedrooms,
where Venus lay unconscious and severely beaten. Woods
forced Jade to help him loot the trailer and to give him her
ATM card and personal identification number. He then raped
Jade orally and vaginally.
During the attack on Jade, Telisha returned to the trailer to
retrieve some personal effects. Woods seized and bound her.
Jade, who was laying on the floor and feigning unconsciousness, later stated that she heard a baseball bat hit Telisha’s
head. Jade said that she was then hit in the head with the bat,
knocked unconscious, and had no memory of what happened
after that point.
When Telisha failed to return home that morning, her
mother, Sherry Shaver, decided to go to the trailer to check
on her. She arrived at approximately 10:25 a.m. and found the
door locked. Peering through a window in the trailer, she saw
a man—whom she later identified as Woods—exiting from
the other side of the trailer. She pounded on the locked trailer
door, and Jade, naked and beaten, eventually opened the door.
Sherry Shaver called 911.
Emergency personnel arrived at the trailer and took the victims to the hospital. While en route to the hospital, Jade told

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a paramedic about the events of the prior evening. At the hospital, she also told her father, the emergency room physician,
and a nurse about what had transpired. Of the three victims,
only Venus survived. Telisha died without ever regaining
consciousness. Despite initially responding to medical treatment, Jade died the following day.
Shortly after Sherry Shaver reported seeing Woods leave
the trailer, he was seen at two local businesses close to the
crime scene. At one of those businesses, Woods convinced
another patron to drive him to downtown Spokane. Within
close proximity to where Woods was dropped off, a series of
cash machine withdrawals occurred with the use of Jade’s
ATM card.
At approximately 12:30 p.m. that same day, Woods ran into
his brother-in-law, Louis Thompson, at a grocery store in the
downtown area. Thompson gave Woods a ride to the home of
Johnny Knight, a friend of Woods’s. Knight and his friend
Mary Knapp testified that when Woods came to their home,
he offered to sell them some jewelry and to buy one of
Knight’s automobiles.
Woods spent the night at Elizabeth Gerber’s apartment.
The following morning, Gerber asked Woods to leave the
apartment. At trial, she testified that Woods became agitated
and said he was “a wanted man” and she was “putting him on
the streets.”
Later that day, Knight heard a television broadcast that
authorities were searching for Woods. In response, Knight
called the police and agreed to lead them to Woods. With
Knight’s cooperation, sheriff’s deputies followed Knight as he
went to pick up Woods. After Knight picked Woods up, the
deputies pulled the car over. Knight got out, but Woods
jumped into the driver’s seat and sped away. The deputies
eventually caught, arrested, and interrogated him.

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Woods told the interviewing detectives that he fled because
he had a number of “outstanding traffic violations” and some
“traffic warrants.” At the time of his arrest, Woods had no
outstanding traffic violations. Woods denied any responsibility for the crimes and claimed he had not been in contact with
Venus for about a week. He further denied knowing a woman
named Jade. He also told detectives that he had not been in
Spokane Valley for about a month, that he had never visited
a trailer home, and that there was no logical explanation of
why his fingerprints would have been found in the trailer.
II.

PRE-TRIAL PROCEEDINGS

Woods was charged with two counts of aggravated first
degree murder, one count of attempted first degree murder,
and in the alternative, one count of first degree assault.4 At his
arraignment on May 30, 1996, Woods pleaded not guilty to
the charges and waived his right to be tried within sixty days
of his arraignment, but not later than November 12, 1996. The
trial was set for October 21, 1996.
In the meantime, the prosecution processed the physical
evidence in the case. Doctors had completed “rape kits” for
all three victims, including taking a swab from the vagina of
each victim. The rape kits were sent to the Washington State
Police Crime Laboratory (or “WSPCL”) in Spokane. At the
Spokane lab, William Morig examined the swabs in search of
sperm cells that might contain the DNA of the murder suspect. Morig found no sperm on the swab taken from Venus
Shaver, but found usable samples from the swabs taken from
Telisha Shaver and Jade Moore. The prosecution also
obtained a vial of Woods’s blood to use in DNA tests. That
sample was sent to the Spokane lab as well. The WSPCL lab
in Spokane did not have the required DNA testing equipment,
so Morig’s responsibilities were limited to preparing DNA
4

The State later amended the information to include a charge of eluding
police.

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samples from the rape kits and Woods’s blood that could be
submitted to other labs for DNA testing and analysis.
On August 23, 1996, Woods’s defense counsel moved for
a continuance of the trial date based on the fact that they had
not received the DNA test results and that they needed additional time to produce mitigation evidence. Although Woods
objected to this motion, defense counsel argued that unless a
continuance was granted, Woods would be unable to receive
a fair trial. The trial court ultimately granted the motion and
reset the trial date for March 17, 1997.
On October 16, 1996, the prosecutor informed the court
that the DNA evidence had not yet been sent for testing. The
prosecutor represented that the results from the testing would
be received by January 1, 1997. Consequently, the court
ordered that the DNA test results be disclosed to the defense
by January 1, 1997. The prosecutor also informed the court
that the vial of Woods’s blood had been mistakenly frozen
and had cracked. The prosecution therefore needed a new
blood sample for testing purposes. Woods objected to providing a new sample and renewed his objection to having the
trial commence after the original date of October 21, 1996.
The court overruled both objections.
By January 2, 1997, the WSPCL had returned only one of
two DNA test results. That test, performed by a private company, showed that Woods was not the source of semen found
in Telisha’s body. At a hearing on January 13, 1997, the prosecutor informed the trial court that the testing of the sperm
sample taken from Jade Moore was not complete. WSPCL
performed that testing at its more advanced Seattle laboratory
because it required a complex testing procedure. The prosecutor informed the court that the test would not be complete
until the middle of February 1997. Defense counsel moved to
exclude admission of the DNA evidence as a result of the
delay, to dismiss the case because of prosecutorial mismanagement, and to continue the case in order to have time to

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adequately prepare for trial in light of the delay in DNA testing. The trial court denied the first two motions but granted
the last and continued the trial to May 19, 1997. Before trial,
WSPCL returned the results of the DNA testing performed in
Seattle, which showed that the DNA taken from Woods’s second blood sample matched the DNA taken from the sperm
recovered from Jade Moore.
III.

GUILT PHASE PROCEEDINGS

At trial, Venus and Sherry Shaver identified Woods as the
assailant. The jury also heard Jade’s statements, including her
identification of Woods, via the testimony of a paramedic,
nurse, and doctor who treated Jade and the testimony of her
father, Barry Moore, who spoke to Jade after the attack. Dr.
John Brown, a forensic scientist at WSPCL’s Seattle laboratory, testified that the sperm recovered from Jade contained
Woods’s DNA. A fingerprint expert testified that Woods’s
fingerprints were on a bottle and a telephone found in the
trailer. The jury also learned that Woods’s coat and shirt were
found at the trailer and saw paging and telephone records
demonstrating that Woods’s pager had been called from the
trailer several times during the early hours of April 27, 1996.
The defense theory was that Woods could not have murdered Telisha and Jade or assaulted Venus because he was
dining at a bar in downtown Spokane at the time the crimes
occurred. To support this alibi defense, the defense presented
testimony from an expert on eyewitness misidentification and
from a bartender who testified that he saw Woods at a downtown bar on the evening in question.
The jury found Woods guilty of two counts of aggravated
murder, one count of attempted murder, and one count of
attempting to elude police officers.
IV.

PENALTY PHASE PROCEEDINGS

Woods instructed his attorneys not to present any mitigating evidence at the penalty phase of the trial. Concerned about

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Woods’s mental state, defense counsel requested a continuance of the penalty phase of the trial in order to have Woods’s
mental capacity assessed. The trial court denied the motion
and ordered the sentencing phase of the trial to commence
that afternoon. At sentencing, the prosecution offered the testimony of Sherry Shaver and Barry Moore, presented photographs of Telisha and Jade, and entered into evidence certified
judgments of Woods’s prior convictions.
Pursuant to Woods’s instructions, defense counsel did not
present any mitigating evidence. Woods did, however, invoke
his right to allocution and made the following statement to the
jury:
Well, ladies and gentlemen, you heard from [the
prosecutor] and so you know that he’s asking that
you impose the death penalty. I just want to say that
I have no objection. Also, I just want to remind you
that a few weeks back during individual voir dire
each of you was asked if you could, in fact, impose
the death penalty. I believe at that time each of you
said you could impose the death penalty providing
there’s not sufficient mitigating circumstances.
So I am here to tell you there’s absolutely none, not
one. So I ask that each of you go back and return a
vote to impose the death penalty. Thank you.
After deliberating for two days, the jury found that there were
insufficient mitigating circumstances to merit leniency.
Woods was sentenced to death.
V.

STATE AND FEDERAL POST-CONVICTION
PROCEEDINGS

The Washington Supreme Court affirmed the convictions
and sentence on direct appeal. See Woods, 23 P.3d at 1079.
The Supreme Court denied certiorari. See Woods v. Washing-

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ton, 534 U.S. 964 (2001). Woods then filed a personal
restraint petition (“PRP”) in the Washington Supreme Court.
Woods raised eighteen claims for relief, including an ineffective assistance of counsel (IAC) claim, a Brady claim, a claim
that the jury had been improperly prohibited from viewing
certain evidence, and a claim that newly discovered evidence
required a new trial. The Washington Supreme Court denied
Woods’s petition. See In re Woods, 114 P.3d at 611.
Woods next filed a federal habeas petition. The State’s
answer raised a number of procedural-bar defenses, including
a claim that Woods had not properly exhausted his claims.
The district court bifurcated the briefing to first determine
whether any of Woods’s claims were procedurally barred. On
the basis of this first round of briefing, the district court concluded that some portions of Woods’s IAC claims and Brady
claims were procedurally barred. The court then considered
Woods’s remaining claims on the merits, and ultimately dismissed the petition in its entirety.
Woods filed a timely notice of appeal and moved for a
COA on all of his claims. The district court granted a limited
COA, the scope of which we address below.
VI.

STANDARD OF REVIEW

We review de novo a district court’s denial of a prisoner’s
petition for habeas corpus. Brown v. Ornoski, 503 F.3d 1006,
1010 (9th Cir. 2007). The district court’s findings of fact are
reviewed for clear error. Id.
Because Woods filed his federal habeas petition after 1996,
the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) governs this action. See id. AEDPA requires federal courts to defer to the last reasoned state court decision.
Id. A federal court may grant a state prisoner’s habeas petition
with respect to a claim that was “adjudicated on the merits in
State court proceedings” only if the adjudication “(1) resulted

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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).
A state court decision is “contrary to” federal law if it
applies a rule that contradicts the governing law set forth in
Supreme Court cases or if it “confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[Supreme Court] precedent.” Williams v. Taylor, 529 U.S.
362, 405-06 (2000). A state court decision involves an “unreasonable application” of federal law if “the state court identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case” or if it “either unreasonably
extends a legal principle from [the Supreme Court’s] 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.
In assessing under section 2254(d)(1) whether the state
court’s legal conclusion was contrary to or an unreasonable
application of federal law, our “review . . . is limited to the
record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388,
1398 (2011). We consider circuit precedent for the limited
purpose of assessing what constitutes “clearly established”
Supreme Court law and whether the state court applied that
law unreasonably. Clark v. Murphy, 331 F.3d 1062, 1069 (9th
Cir. 2003), overruled on other grounds by Lockyer v.
Andrade, 538 U.S. 63 (2003).
VII.

SELF-REPRESENTATION

Woods contends that he made an unequivocal request to
represent himself and that the trial court was thus obliged

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under Faretta v. California, 422 U.S. 806 (1975), to conduct
a colloquy to determine whether his request was voluntary,
knowing and intelligent. The court’s failure to do so, Woods
argues, violated his Sixth Amendment right to selfrepresentation. On direct appeal, the Washington State
Supreme Court concluded that Woods had failed to make an
unequivocal request. See Woods, 23 P.3d at 1061-62. The district court agreed, and we affirm.
[1] Under Faretta, a criminal defendant may invoke the
right of self-representation by making an unequivocal request
and knowingly and intelligently waiving the right to counsel.
Faretta, 422 U.S. at 835. Here, during pre-trial proceedings,
Woods twice informed the court that he opposed any continuance of the trial date. First, on August 16, 1996, Woods
informed the court that he opposed any extension of time for
the prosecution to file its notice of special sentencing proceeding5 or any further continuance of his trial date. On August
23, 1996, Woods again expressed his opposition to any further continuance when his defense counsel requested that the
trial date be pushed back to May 5, 1997, as a result of the
delay in processing of the DNA evidence. The following colloquy then took place:
[DEFENSE COUNSEL]: I think the only effective
date we can ask for right now is the 5th of May of
‘97.
5

Under Washington law, when a criminal defendant is eligible for the
death penalty, the State is required to file a notice of special sentencing
proceeding within thirty days after the defendant’s arraignment. Wash.
Rev. Code § 10.95.040(2). If that notice is not timely filed, the State may
not seek the death penalty. Id. § 10.95.040(3). On direct appeal, Woods
argued that the State had failed to comply with this requirement, and that
he was therefore entitled to a new trial. See Woods, 23 P.3d at 1062-63.
The Washington Supreme Court rejected that argument, among others, in
a 5-1 opinion. Id. at 590. Justice Sanders’s dissent, however, concluded
that the State had indeed erred and that such error required the court to
vacate Woods’s death sentence. Id. at 622-26 (Sanders, J., dissenting).
Woods did not raise this state law issue in his federal habeas petition.

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WOODS: Your Honor, you know, I will be—I will
be prepared to proceed with—with this matter here
without counsel come October 21st.
THE COURT: All right. You understand you have
the right to do that.
WOODS: Yes.
THE COURT: Counsel, have you discussed this with
your client?
[DEFENSE COUNSEL]: No. We have not discussed
that point at all. It’s a surprise to me.
WOODS: I’ve—I’ve already consented to one continuance, Your Honor. And they—they have done
nothing but grossly misuse that time there. And I feel
if—if they was granted a second continuance, it—it
would be treated in the same manner, Your Honor.
THE COURT: All right. Thank you.
Shortly afterward, the prosecutor stated that “the defendant is
indicating he wants to proceed pro se.” The trial judge
replied: “He didn’t indicate that. He indicated he was able to
do that.” Nobody made any further references to Woods’s
request to proceed pro se throughout the remainder of the
hearing.
On August 29, 1996, one of Woods’s attorneys acknowledged in a written submission to the court that he was aware
of Woods’s desire for a “prompt resolution” of the case. On
August 30, 1996, Woods’s defense team renewed their
request for a continuance. At a hearing on the motion, the
judge stated: “I’ve heard Mr. Woods’s point of view and I
take it, it is unchanged. Is that correct?” Woods responded,

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“Yeah.” The trial judge nonetheless granted the motion to
continue the trial to March 17, 1997.
In concluding that Woods’s request was equivocal, the
Washington State Supreme Court analogized his request to
that made by the defendant in State v. Luvene, 903 P.2d 960
(Wash. 1995). There, frustrated by his attorney’s request for
a continuance, the defendant addressed the court directly and
stated:
I’ve been here since July . . . . You know, I don’t
wanna sit here any longer. It’s me that has to deal
with this. If I’m prepared to go for myself, then
that’s me. You know, can’t nobody tell me what I
wanna do. They say I did this, so why not—if I
wanna go to trial, why can’t I go to trial on the date
they have set for my life? I’m prepared. I’m not even
prepared about that. I wanna go to trial, sir . . . .
I don’t wanna extend my time. This is out of my
league for doing that. I do not want to go. If he’s not
ready to represent me, then forget that. But I want to
go to trial on this date.
Id. at 960. In Luvene, the Washington Supreme Court concluded that these statements, taken in the context of the record
as a whole, could be seen only as an “expression of frustration
by [the defendant] with the delay in going to trial and not as
an unequivocal assertion of his right to self-representation.”
Id.
Noting the similarities between the statement in Luvene and
Woods’s statement, the Washington State Supreme Court
held:
Woods’s statement cannot be viewed as an unequivocal statement of his desire to proceed to trial pro se.
His statement, like that which we examined in

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Luvene, merely revealed the defendant’s displeasure
with his counsels’ request to continue the trial for a
lengthy period of time. Woods, like the defendant in
Luvene, was undoubtedly frustrated by the delay,
and his statement to the trial court appears to have
been an expression of those feelings.
...
We are satisfied that telling a trial judge he “will be
prepared to proceed without counsel” is qualitatively
different than telling a judge that one wishes to proceed pro se. Woods’s comment was in the former
category and was not an expression of an unequivocal desire to represent himself. We conclude, therefore, that he was not denied his constitutional right
to proceed pro se and is not entitled to a new trial on
that basis.
Woods, 23 P.3d at 1062.
[2] We conclude that the Washington Supreme Court’s
determination that Woods’s pre-trial statement, as quoted
above, was “not an expression of an unequivocal desire to
represent himself,” id., was not “an unreasonable determination of the facts,” 28 U.S.C. § 2254(d)(2). Cf. United States
v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994)
(expressly considering as a question of fact whether a defendant made an unequivocal Faretta request). Although it is not
apparent what factual basis the Washington Supreme Court
relied on to conclude that Woods was merely expressing
“frustration,” we cannot say, in light of the state trial court
record, that the court’s holding was unreasonable. Shortly
after Woods stated that he was prepared to proceed without
counsel, the trial court expressly disagreed with the prosecutor’s statement that Woods was asking to proceed pro se, stating that “[Woods] didn’t indicate that [he wanted to proceed
pro se]. He indicated he was able to do that.” Woods had the

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opportunity to correct or clarify the court’s understanding if
it was incorrect. Yet neither Woods nor his counsel reasserted
the request to proceed pro se again during the hearing or any
future hearings.6 In light of this exchange, we cannot conclude
that the state court’s factual determination was unreasonable.
Woods is therefore not entitled to relief under this claim.
VIII.

CONFRONTATION CLAUSE

[3] Woods next argues that admission of Jade Moore’s outof-court statements at trial violated his rights under the Confrontation Clause. The Sixth Amendment provides that, “[i]n
all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him.” U.S. Const.
amend. VI. Under Ohio v. Roberts, controlling law at the time
of Woods’s conviction, admission of an out-of-court statement at trial did not violate the Confrontation Clause if the
statement possessed “adequate indicia of reliability.” 448 U.S.
56, 65-66 (1980), abrogated by Crawford v. Washington, 541
U.S. 36 (2004).7 A statement is sufficiently reliable if it falls
“within a firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” Id. at 66. The Supreme
Court
subsequently
recognized
that
“spontaneous
declarations”—the same types of statements referred to as
“excited utterances” under Washington’s hearsay laws—
constitute a “firmly rooted” hearsay exception. White v. Illinois, 502 U.S. 346, 355 n.8 (1992). Likewise, the Court rec6

Woods claims that at the next hearing he reasserted his right to proceed
pro se. At that hearing, in discussing whether or not to grant a continuance, the trial court stated, “I’ve heard Mr. Woods’ point of view and I
take it, it is unchanged. Is that correct?” Woods replied, “Yeah.” We cannot reasonably discern from Woods’s reply a request to proceed pro se.
7
Woods’s conviction became final before the Supreme Court issued its
opinion in Crawford, so we apply the clearly established pre-Crawford
Supreme Court law. See Whorton v. Bockting, 549 U.S. 406, 421 (2007)
(holding that the new Crawford rule is applicable only to cases that are
still on direct review and does not apply retroactively to cases on collateral
review).

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ognized that statements made to physicians in the course of
diagnosis also fall within a “firmly rooted” exception. Id.
Here, over Woods’s objection, the trial court allowed five
witnesses to testify about statements that Jade made after the
attack and before her death. Deputy Douglas Lawson of the
Spokane County Sheriff’s Department, who responded to the
scene of the crime, testified at trial that he asked Jade whether
she knew who attacked her and that she responded it was “a
guy named Dwayne.” Carol Ragland-Stone, a paramedic who
accompanied Jade to the hospital, testified at trial that: (1)
when she asked Jade what had happened to her, Jade told her
that she had been hit with a baseball bat; (2) when she asked
Jade who hit her, Jade responded that it was a man named
Dwayne; and (3) when asked whether she was sexually
assaulted, Jade said yes. Jade’s father, Barry Moore, testified
that when he went to visit Jade in the emergency room, she
gave him a detailed account of the incident. Barry Moore
repeated this account to the jury. Dr. Edminster, who was
working at the hospital where Jade was admitted, testified that
he asked Jade a number of questions as part of a routine rape
examination procedure. Dr. Edminster gave detailed testimony about Jade’s answers to these questions. Finally,
Dianne Bethel, a registered nurse who assisted Dr. Edminster
in the administration of the rape examination, also testified as
to Jade’s answers to the rape examination questions.
To determine whether Woods’s Confrontation Clause rights
were violated, we must resolve whether Jade’s statements to
these witnesses fell within either the “firmly rooted” excited
utterance or medical diagnosis exceptions to the hearsay rule.
We address the five witnesses’s statements in turn.
First, Woods argues that some of Jade’s statements to Dr.
Edminster and nurse Bethel were not elicited for purposes of
diagnosis and treatment and therefore do not fall within the
medical diagnosis exception to the hearsay rule. Under White,
in order for a statement to fall within the medical diagnosis

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exception, it must have been “made in the course of procuring
medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment.” White, 502
U.S. at 356.
[4] The Washington Supreme Court held that Jade
Moore’s statements to Dr. Edminster and Bethel were admissible under this exception because they were pertinent to later
treatment for post traumatic stress disorder. Because this conclusion is at least plausible and because the Supreme Court
has yet to address whether such statements relevant only to
later psychological treatment fall within the medical diagnosis
exception to the hearsay rule, we cannot conclude that the
Washington Supreme Court’s determination was clearly
unreasonable.
Woods next argues that Jade’s statements to Barry Moore
and to paramedic Ragland-Stone should not have been admitted into evidence under the excited utterance exception. In
White, the Court explained that statements that have “been
offered in a moment of excitement—without the opportunity
to reflect on the consequences of one’s exclamation” fall
within the excited utterance exception. 502 U.S. at 356. If, on
the other hand, a statement is made after the declarant has had
an opportunity to reflect or discuss the matter with others, it
no longer qualifies for the excited utterance exception. Winzer
v. Hall, 494 F.3d 1192, 1198 (9th Cir. 2007) (interpreting
White).
[5] According to the Washington Supreme Court, “it was
not manifestly unreasonable for the trial court to admit Jade’s
statements to Ragland-Stone and her father as excited utterances.” Woods, 23 P.3d at 1069. As to Jade’s statements to
Ragland-Stone, the court noted:
[T]he record reflects that the statements to RaglandStone were made, in a spontaneous manner, on the
heels of a clearly startling event. . . . Also, it is clear

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that when Jade was making the statements to
Ragland-Stone, Jade was under the stress caused by
the underlying assault. According to Ragland-Stone,
when Jade was first moved into the ambulance,
Ragland-Stone said she was “whimpering, like crying almost” and was “very emotional, very distraught, clearly upset and in a lot of pain.”
Id. at 1068. We must accept the state court’s factual findings
unless objectively unreasonable. 28 U.S.C. § 2254(d)(2);
Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).
Because there was no evidence to the contrary, the state
court’s conclusion that the statements were made “in a spontaneous manner, on the heels of a clearly startling event,” was
not objectively unreasonable. Woods, 23 P.3d at 1068. Given
those circumstances, Jade’s statements to Ragland-Stone met
the White requirement for an excited utterance: they were
offered “in a moment of excitement—without the opportunity
to reflect on the consequences of [her] exclamation.” White,
502 U.S. at 356. The state court’s conclusion was therefore
not objectively unreasonable. For the same reasons, we conclude that the state court was not objectively unreasonable in
holding that Jade’s statements to Deputy Lawson fell within
White’s requirements.
[6] Jade’s statements to Barry Moore, however, do not fall
within the excited utterance exception as formulated by White
because they were not made before Jade had an opportunity
to reflect. Rather, these statements were made after Jade had
already been transported to the hospital and after she had
already recounted the events to Ragland-Stone, Edminster and
Bethel. Furthermore, in recounting the events to her father,
Jade said that she had gone to bed early despite the fact that
she had been up until past 3 a.m., and she also failed to
recount that she had been drinking prior to the attack or that
she had sought to buy drugs from Woods. Woods, 23 P.3d at
1068. Those misrepresentations suggest that Jade had the
opportunity to reflect on the consequences of her statements.

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Furthermore, unlike its findings about Jade’s statements to
Ragland-Moore, the Washington Supreme Court’s opinion
contains no similar findings as to the spontaneity of Jade’s
statements to Barry Moore. We therefore conclude that the
state court’s determination that Jade’s statements to her father
were “excited utterances” was an unreasonable application of
White, clearly established federal law. Accordingly, admission of Jade’s statements to Barry Moore constituted a violation of Woods’s rights under the Confrontation Clause.
[7] Violation of the Confrontation Clause, however, is subject to harmless-error analysis. Delaware v. Van Arsdall, 475
U.S. 673, 684 (1986). If the error did not result in “actual
prejudice,” Woods is not entitled to habeas relief. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993). Here, Jade’s statements to her father were, for the most part, cumulative of the
statements she gave to Edminster, Bethel and Ragland-Stone.
Jade’s prior statements all included the details of the crime
and identification of Woods as the perpetrator. Furthermore,
Jade’s prior statements were cumulative of the testimony by
Venus, who also identified Woods as the attacker. Thus,
Woods cannot establish prejudice as a result of the Confrontation Clause violation, and he is not entitled to habeas relief on
this issue.
IX.

DUE PROCESS CLAIM — WITHHOLDING
MATERIAL EVIDENCE

Woods argues that the prosecution withheld material,
exculpatory evidence in violation of Brady v. Maryland. Specifically, Woods argues in two Brady sub-claims8 that the
prosecution withheld evidence concerning: (1) WSPCL’s general policy of destroying “draft” reports, as evidenced by Dr.
Brown’s conduct in State v. Barfield, No. 48147-9-I, 2003
8

The first sub-claim is set out in claim 5.1 in Woods’s federal habeas
petition. The second sub-claim is set out in claim 5.2 in Woods’s federal
habeas petition.

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WL 22121058 (Wash. Ct. App. Sept. 15, 2003), and (2) the
full details of how the WSPCL crime lab mishandled the
physical evidence in his case, including spillage of Woods’s
first blood sample. On the first Brady sub-claim, the district
court denied Woods’s request for an evidentiary hearing and
denied habeas relief. The district court ruled that the second
sub-claim was procedurally defaulted. We address each subclaim in turn.
A.

The State’s failure to disclose WSPCL’s general
practices

Woods argues that the prosecution had knowledge of
WSPCL’s DNA testing and review protocol, which included
discarding “draft” reports, and was therefore required under
Brady to disclose the lab’s review process. Woods bases this
contention on Dr. John Brown’s conduct detailed in State v.
Barfield, 2003 WL 22121058.9 In Barfield, Dr. Brown tested
the DNA from a semen sample retrieved from a rape victim
and compared the results to a WSPCL database that included
defendant Barfield’s DNA. Id. at *1. He did not identify a
match, and created a draft report reflecting that result. Id.
Brown’s supervisor, Donald MacLaren, independently analyzed the test results and, after reviewing Brown’s draft
report, noticed that Brown had made an error. Id. After MacLaren brought the error to his attention, Brown discarded the
erroneous draft report and prepared a new report reflecting the
correct analysis, which indicated the DNA from the semen
sample matched Barfield’s DNA profile in the WSPCL database. Id. In a pretrial interview with defense counsel, Brown
initially denied excluding Barfield in an earlier report, but
later admitted that he had performed the first round of analysis incorrectly and had discarded the initial erroneous draft
report. Id. Dr. Brown testified at Barfield’s rape trial that he
9

Dr. Brown analyzed DNA in the Barfield case in 1997, but after he
analyzed the DNA evidence and testified in Woods’s case.

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had lied to defense counsel because he was embarrassed about
making an obvious error. Id. at *2.
In a declaration submitted to the Washington Supreme
Court in Woods’s PRP proceeding, MacLaren, who also
reviewed Dr. Brown’s analysis in Woods’s case, stated that
the review process followed in Barfield—including peer
review and discarding erroneous draft reports—was standard
procedure at WSPCL. MacLaren declared, however, that “out
of the thousands of autorads this lab has developed there have
been less than ten instances where a resizing was necessitated
by the review process.”
Woods argues that had he known about WSPCL’s practices
at the time of trial, he would have used the information to
impeach Dr. Brown and to challenge the prosecution’s DNA
evidence by questioning the quality of WSPCL’s internal
review process. Woods contends that Dr. Brown’s misconduct
in the Barfield case revealed a longstanding practice of hiding
the results of exculpatory tests and that there were indicia in
this case that draft reports may have been destroyed. Specifically, Woods points out that WSPCL assured the prosecution
that testing would be completed by January 1, 1997, but it
was not completed until February 20, 1997. Woods argues
that it is reasonable to infer that the delay was due to one or
more tests that were never reported to the defense.
To prevail on a Brady claim, a defendant must prove that
“[1] The evidence at issue [is] favorable to the accused, either
because it is exculpatory, or because it is impeaching; [2] that
evidence [was] suppressed by the State, either willfully or
inadvertently; and [3] prejudice . . . ensued.” Strickler v.
Greene, 527 U.S. 263, 281-82 (1999); see Brady, 373 U.S. at
87. To establish prejudice, a defendant must demonstrate that
“there is a reasonable probability that the result of the trial
would have been different if the suppressed [evidence] had
been disclosed to the defense.” Strickler, 527 U.S. at 289
(internal quotation marks omitted). “A ‘reasonable probabil-

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ity’ is a probability sufficient to undermine confidence in the
outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985).
The duty imposed by Brady extends to evidence in the government’s possession not known to the prosecutor, but applies
only to “favorable evidence rising to a material level of
importance.” Kyles, 514 U.S. at 438. Moreover, the prosecutor’s duty to disclose under Brady is limited to evidence a reasonable prosecutor would perceive at the time as being
material and favorable to the defense. Id. at 436-37.
[8] The state supreme court concluded that WSPCL’s general practice of peer review and destruction of erroneous draft
reports was not exculpatory material in Woods’s case, and
that the prosecution did not have a duty to disclose the lab’s
general practices and procedures. This conclusion was not
contrary to nor an unreasonable application of Brady under 28
U.S.C. § 2254(d)(1). The bare fact that the lab subjected DNA
test results to peer review and discarded draft reports when
peer review turned up an error does not tend to show that an
error occurred in Woods’s case. We recognize that destruction
of a draft report that excluded a defendant as a match with a
suspect’s DNA would likely violate Brady in light of the
report’s impeachment value. Although WSPCL may have followed such a practice in those rare instances when its peer
review process revealed an erroneous analysis, there is nothing to suggest that the state suppressed an erroneous draft
report in Woods’s case. Moreover, Dr. Brown’s misconduct
in Barfield occurred months after Woods’s trial concluded, so
the prosecution did not possess any information about
Brown’s actions in Barfield that could have impeached him at
Woods’s trial.
Even if evidence of WSPCL’s general practices were not
exculpatory, Woods argues that it would be reasonable to
infer from Dr. Brown’s conduct in Barfield and the delay in
obtaining DNA test results in his case that WSPCL conducted
tests in his case that were never reported to the defense.

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Woods contends the state supreme court wrongfully denied
him an evidentiary hearing to develop this claim. We construe
his argument as a claim that the state court’s factfinding process was flawed and was therefore an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2). See Taylor
v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004) (explaining that
§ 2254(d)(2) applies to challenges “that the process employed
by the state court is defective”). A state court’s factfinding
process is unreasonable under § 2254(d)(2) only when we are
“satisfied that any appellate court to whom the defect is
pointed out would be unreasonable in holding that the state
court’s factfinding process was adequate.” Taylor, 366 F.3d at
1000.
Here, there was no defect in the state supreme court’s factfinding process. Although it might have been prudent to provide Woods with the opportunity to develop the facts
underlying this aspect of his Brady claim, the state court’s
decision to deny him a hearing was based on its consideration
of the declarations of Dr. Brown and MacClaren that were
filed with the Washington Supreme Court. Although neither
declaration expressly denied the existence of an erroneous
draft report in Woods’s case, there is nothing in those declarations or anywhere else in the record to suggest that such a
report existed. It was not unreasonable for the Washington
Supreme Court to deny Woods’s request for a hearing when
all he could offer was speculation that an evidentiary hearing
might produce testimony or other evidence inconsistent with
Dr. Brown and MacClaren’s declarations.
We further conclude that the Washington Supreme Court
did not make an unreasonable determination of the facts under
28 U.S.C. § 2254(d)(2) when it found that there was no showing Dr. Brown destroyed evidence in this case. The only evidence before the state court was that MacClaren reviewed Dr.
Brown’s test results and agreed with them. We agree with the
Washington Supreme Court that “the record does not show

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that Dr. Brown intentionally destroyed exculpatory evidence
and then lied about it.” In re Woods, 114 P.3d at 622.
Because the state supreme court’s ruling was neither an
unreasonable application of federal law nor an unreasonable
determination of the facts, 28 U.S.C. § 2254(d)(1)-(2), we
affirm the district court’s denial of relief on this sub-claim.10
B.

Failure to disclose details of the spillage of Woods’s
first blood sample

Woods alleges that the State failed to disclose the full
details of the spillage of his first blood sample at WSPCL’s
laboratory in Spokane. Woods claims that this evidence
would have shown that there was a significant risk that the
rape kit swab taken from Jade Moore was contaminated when
Woods’s blood sample leaked, thus leading to a false positive
DNA match. The district court found that Woods did not
fairly present this sub-claim to the Washington Supreme
10

Woods also requested an evidentiary hearing in the district court to
develop his claim. Because our review of a claim adjudicated on the merits by the state court under 28 U.S.C. § 2254(d)(1) is limited to the record
before the state court under Pinholster, 131 S. Ct. at 1398, we see no need
to afford Woods an opportunity to develop evidence in support of his
argument that the state supreme court unreasonably applied Brady. To the
extent that Woods attacks the state court’s factfinding, we have held that
where there is no defect in the state court’s factfinding process, as here,
“the state court’s findings are dressed in a presumption of correctness,
which then helps steel them against any challenge based on . . . evidence
presented for the first time in federal court.” See Taylor, 366 F.3d at 1000.
Woods alleges no facts to support his claim beyond the suspicion that the
prosecution’s delay in obtaining and reporting DNA test results indicates
the destruction and non-disclosure of exculpatory evidence. “Bare allegation[s],” “speculation,” and “wishful suggestions” do not entitle a petitioner to an evidentiary hearing. Morris v. California, 966 F.2d 448, 456
(9th Cir. 1991). We therefore affirm the district court’s denial of an evidentiary hearing.

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Court and ruled that the sub-claim was procedurally barred.
We agree.11
State prisoners seeking a writ of habeas corpus from a federal court must first exhaust their remedies in state court. 28
U.S.C. § 2254(b)(1)(A). A petitioner has exhausted his federal
claims when he has fully and fairly presented them to the state
courts. O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)
(“Section 2254(c) requires only that state prisoners give state
courts a fair opportunity to act on their claims.”). “[F]or purposes of exhausting state remedies, a claim for relief in
habeas corpus must include reference to a specific federal
constitutional guarantee, as well as a statement of the facts
that entitle the petitioner to relief.” Gray v. Netherland, 518
U.S. 152, 162-63 (1996); see also Davis v. Silva, 511 F.3d
1005, 1009 (9th Cir. 2008).
Here, Woods presented the state supreme court with both
the operative facts and legal theory of his sub-claim that the
State withheld evidence of WSPCL’s general testing and
11

Woods and the State disagree as to whether the COA includes the earlier procedural rulings related to each claim or, rather, is limited only to
the claims as considered by the court in its final order. Woods argues that
the district court’s grant of a COA relates not only to the merits of the
claims but also to the procedural rulings associated with each claim. The
State, on the other hand, argues that the COA does not cover the procedural rulings and therefore does not allow us to review whether Woods’s
second Brady sub-claim was properly exhausted. In his Memorandum in
Support of Motion for Certificate of Appealability filed with the district
court, Woods expressly requested that the COA include the district court’s
procedural rulings. See Woods v. Sinclair, No. CV-05-0319-LRS (E.D.
Wash. Dec. 29, 2008). In light of these circumstances and the minimal
showing that is required for a COA to issue, see Lopez v. Schriro, 491
F.3d 1029, 1039 (9th Cir. 2007) (stating that appellant need only show that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong), we agree with Woods that the COA
should be construed to encompass related procedural rulings. Therefore,
we conclude that the COA includes the question of whether Woods
exhausted his second Brady sub-claim, and we proceed to consider it.

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review protocols, but he did not present facts relating to the
breakage of the vial containing his first blood sample at the
Spokane lab. Woods argues that, although his PRP never
expressly raised a claim about the spillage of his blood sample
and the potential for contamination of other evidence, his state
court Brady claim alleging the non-disclosure of WSPCL’s
practice of discarding erroneous draft reports was sufficient to
raise the issue of the prosecution’s failure to disclose the mishandling of all the evidence related to DNA testing. In his
amended PRP, Woods unequivocally stated that his Brady
claim related to how WSPCL’s general practices related to his
case. Woods noted in his PRP that “counsel moved to take
depositions of Dr. Brown, William Morig, and Donald MacLaren, all of the Washington State Patrol Crime Lab, to determine the specific practices in this case.” (emphasis added).
Woods suggests this language was sufficient to put the state
supreme court on notice of the second Brady sub-claim he
raised in his federal habeas petition.
[9] Nowhere in the PRP’s Brady section, however, does
Woods mention the spillage of the first blood sample. Aside
from his request to depose Morig, Woods’s only reference in
the PRP to the forensic work at WSPCL’s Spokane facility
stated that Morig received the rape kit swabs, prepared samples from the swabs, and sent the samples to other laboratories to be tested. The Brady claim presented in the PRP
focuses entirely on the actions of Dr. Brown, both in the Barfield case and in Woods’s case. Yet Dr. Brown had nothing
to do with the storage, spillage, and breakage of the vial containing Woods’s first blood sample. In fact, Woods does not
allege that Dr. Brown even knew that a spillage occurred. As
discussed above, Dr. Brown’s conduct in the Barfield case
does not create a presumption that WSPCL, as an organization, systematically suppressed exculpatory material. We thus
fail to see how the Brady claim in Woods’s PRP, which spoke
only to Dr. Brown’s procedures for testing and analysis in the
Seattle lab, gave the state supreme court a full and fair opportunity to act on an allegation that the prosecution withheld

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evidence related to the spillage of a blood sample at
WSPCL’s Spokane laboratory. Accordingly, we conclude that
Woods failed to present the facts underlying his second Brady
sub-claim to the Washington Supreme Court, and we affirm
the district court’s ruling that the sub-claim regarding the
spillage of Woods’s blood sample is technically exhausted but
procedurally barred.
[10] Woods contends that the district court nonetheless
should have entertained his sub-claim because he established
cause for the procedural default and prejudice resulting from
his failure to exhaust state remedies. See Banks v. Dretke, 540
U.S. 668, 690-91 (2004) (holding that petitioner would be
entitled to an evidentiary hearing in federal court if he could
show cause for his failure to develop the facts in state-court
proceedings and actual prejudice resulting from that failure).
For a Brady claim, cause and prejudice “ ‘parallel two of the
three components of the alleged Brady violation itself.’ ” Id.
at 691 (quoting Strickler, 527 U.S. at 282). A petitioner may
establish cause by showing that the prosecution’s suppression
of evidence was the reason for the petitioner’s failure to
develop the factual basis of the claim in state court. Id. Prejudice is established by showing that the suppressed evidence is
material for Brady purposes. Id. Here, Woods argues that he
failed to develop the facts of this sub-claim because the State
never disclosed the full details of the spillage of his first blood
sample. We agree with the district court that this is insufficient to show that the prosecution’s alleged suppression of
evidence caused Woods’s failure to develop his sub-claim in
state court.
Notably, the prosecution disclosed before trial that the vial
containing Woods’s first blood sample had cracked and
leaked at the Spokane lab. That disclosure put Woods on
notice that other evidence may have been contaminated.
Woods does not allege what further exculpatory facts the
prosecution possessed but failed to disclose. Moreover,
although Woods sought authorization from the Washington

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Supreme Court to conduct certain discovery, neither his discovery requests nor his request for an evidentiary hearing specifically related to the spillage of the blood sample or the
possible contamination of other evidence. His failure to
develop the factual basis of his claim, therefore, cannot properly be attributable to the prosecution’s failure to disclose relevant evidence. We thus affirm the district court’s dismissal
of this sub-claim as procedurally defaulted.12
X.

INEFFECTIVE ASSISTANCE OF COUNSEL

Woods argues that he was denied his Sixth Amendment
right to effective assistance of counsel on the basis of a number of deficiencies in his defense team’s performance. The
district court concluded that seven of these IAC sub-claims
12

Woods also seeks an evidentiary hearing on the merits of this subclaim and on the issue of cause and prejudice as an excuse for his procedural default. Under AEDPA, 28 U.S.C. § 2254(e)(2), “If the applicant has
failed to develop the factual basis of a claim in State court proceedings,
the court shall not hold an evidentiary hearing on the claim unless the
applicant shows that“(A) the claim relies on“(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
“(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
“(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.”
Woods cannot meet this high standard. Woods fails to allege what facts
relevant to his Brady claim or to the issue of cause and prejudice will be
uncovered by an evidentiary hearing aside from the suspicion that the
prosecution might have been hiding information relating to DNA contamination. We agree with the district court that these speculative allegations
do not meet the required showing under section 2254(e)(2), and we affirm
the district court’s denial of an evidentiary hearing.

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had been properly exhausted before the state courts and therefore considered them on the merits: (1) counsel’s heavy workload; (2) counsel’s lack of experience and training; (3)
counsel’s failure to properly impeach witness Johnny Knight;
(4) counsel’s failure to investigate and present Woods’s
diminished capacity defense; (5) counsel’s failure to investigate and present Woods’s voluntary intoxication defense; (6)
counsel’s failure to ensure that the DNA autoradiograms went
into the jury deliberation room; and (7) counsel’s failure to
object to the use of Woods’s alias, “Michael A. Smith,” during the trial.
The district court also concluded that a number of the IAC
sub-claims were procedurally barred, including: (1) counsel’s
failure to address Venus’s recovered memories; (2) counsel’s
failure to adequately cross-examine Venus on her prior false
allegation that Woods had raped her; (3) counsel’s failure to
call a DNA expert to contest the DNA evidence; and (4)
counsel’s failure to investigate adequately the potential DNA
contamination caused by the broken vial of Woods’s blood.
Both parties agree that the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), constitutes
“clearly established federal law” providing the proper framework for assessing Woods’s IAC claims. Under AEDPA, the
primary issue is whether the state court adjudication of the
Strickland claims was objectively reasonable. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). To prevail on an IAC claim
under Strickland, a petitioner must show (1) “that counsel’s
performance was deficient,” and (2) “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.
As to the first prong, a petitioner must prove that counsel’s
performance was so deficient that it “fell below an objective
standard of reasonableness.” Id. at 688. The Supreme Court
has instructed lower courts to “indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance . . . .” Id. at 689. As to the second

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prong, petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different.” Id. at 694.
Finally, even if Woods can satisfy both of those prongs,
AEDPA requires that a federal court find the state court’s
contrary conclusions are objectively unreasonable before
granting habeas relief. See Landrigan, 550 U.S. at 473.
We first review those claims that the district court
addressed on the merits, and then consider those the district
court concluded were technically exhausted but procedurally
barred.
A.

Counsel’s inexperience and caseload

Woods argues that, because his two primary defense attorneys faced unmanageable caseloads and were inexperienced
in capital litigation, their performance was deficient. The district court rejected that argument, and so do we.
[11] Woods points out several troubling aspects of his
counsel’s experience and caseload. For example, neither of
Woods’s attorneys had ever tried a capital case before. One
of Woods’s attorneys was the lead attorney on four other murder cases during the time he was representing Woods, while
the other was responsible for three other aggravated murder
cases. In fact, just weeks before trial, Woods’s defense attorney requested an extended continuance, explaining that he
had never prepared for a case of this magnitude before and
that he did not feel comfortable beginning the trial. The court
denied this request. Despite these alleged deficiencies, these
circumstances do not, in and of themselves, amount to a Strickland violation. Rather, Woods must point to specific acts
or omissions that may have resulted from counsel’s inexperience and other professional obligations. See Strickland, 466
U.S. at 690. Thus, Woods is not entitled to relief on this subclaim alone.

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Diminished capacity defense

Woods claims that his attorneys should have investigated
and pursued a diminished capacity defense. The state supreme
court concluded:
[I]t was reasonable for [Woods’s] counsel to pursue
the alibi defense rather than diminished capacity
because Woods continuously denied his involvement
in the crimes. To pursue the diminished capacity
defense would have required Woods to essentially
admit that he committed the murders, a position
entirely inconsistent with his contention that he did
not commit the murders.
In re Woods, 114 P.3d at 618.
The district court agreed, adding that Woods’s staunch
insistence on his innocence made it reasonable for counsel to
“cho[o]se to pursue a defense of alibi and mistaken identification rather than a defense of diminished capacity, the latter of
which had a high probability of failure.” The Washington
Supreme Court and the district court also agreed that, even if
counsel’s performance had been deficient, the failure to present a diminished capacity defense was harmless in light of
the strong evidence of Woods’s premeditation. See In re
Woods, 114 P.3d at 618-19. Woods argues that the state
court’s determination on this issue was objectively unreasonable and that he is entitled to an expansion of the record and
an evidentiary hearing. We need not address whether
Woods’s counsel’s performance was deficient because we
conclude he cannot demonstrate prejudice and is therefore not
entitled to habeas relief on this sub-claim.
To be entitled to habeas relief, Woods must demonstrate
that the Washington Supreme Court unreasonably concluded
that counsel’s performance did not prejudice him. The Washington Supreme Court held that, “[e]ven if Woods’ attorneys

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failed to investigate the diminished capacity defense, it is
harmless error because there is strong evidence of premeditation by Woods.” 114 P.3d at 618-19. Under the second prong
of Strickland, to demonstrate prejudice, Woods must show
that it is reasonably probable that the outcome of his trial
would have been different had counsel conducted a reasonable investigation into his diminished capacity defense. 466
U.S. at 694. “A reasonable probability does not mean that we
must determine that the jury more likely than not would have
returned a verdict for something beside [sic] first degree murder, but only that [defendant] has shown ‘a probability sufficient to undermine confidence in the outcome.’ ” Jennings v.
Woodford, 290 F.3d 1006, 1016 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 694). Thus, Woods must demonstrate that
it was objectively unreasonable for the state court to conclude
that his counsel’s deficient performance did not affect, or otherwise undermine confidence in, the outcome of his trial.
[12] Even assuming that Woods’s counsel were constitutionally deficient in their performance, the state court’s determination that this deficiency was not prejudicial was
objectively reasonable. According to Woods, his counsel
should have conducted further investigation into a diminished
capacity defense. Yet, as the state supreme court noted, even
if counsel had unearthed significant evidence of Woods’s
diminished capacity, “[t]o pursue the diminished capacity
defense would have required Woods to essentially admit that
he committed the murders, a possibility entirely inconsistent
with his contention that he did not commit the murders.” In
re Woods, 114 P.3d at 618-19. Woods failed to present the
Washington Supreme Court with any evidence (or even a declaration) that he would have been willing to abandon his alibi
defense if presented with an alternative diminished capacity
defense. We thus cannot say that the state court’s determination on this sub-claim was objectively unreasonable.
C.

Voluntary intoxication defense

Woods faults counsel for not adequately investigating and
presenting a voluntary intoxication defense. Although related

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to a diminished capacity defense, voluntary intoxication constitutes a separate cognizable defense under Washington law.
See State v. Hackett, 827 P.2d 1013, 1015 n.2 (Wash. Ct.
App. 1992) (per curiam) (holding that the voluntary intoxication defense applies to intoxication by drugs as well as alcohol, and that a diminished capacity instruction was not broad
enough to cover voluntary intoxication falling short of mental
illness or disorder).
[13] Although this type of alleged deficiency may prejudice a defendant, see Seidel v. Merkle, 146 F.3d 750, 757 (9th
Cir. 1998) (finding prejudice where counsel completely failed
to investigate his client’s mental health despite abundant signs
in the record that his client suffered from mental illness); Jennings, 290 F.3d at 1019 (finding prejudice where counsel
failed to investigate and present mental health defenses and
noting that the jury deliberated for two full days despite overwhelming evidence against the defendant), here we are not
convinced that the state court’s determination to the contrary
was objectively unreasonable. Woods failed to submit any
evidence that, had his defense counsel presented him with the
option to pursue this defense, he would have agreed to it. In
fact, the evidence before the state trial court demonstrated that
Woods was insistent upon his innocence and that, in all probability, he would have rejected any defense requiring him to
admit guilt. In sum, whether or not Woods’s counsel’s performance was constitutionally deficient, the Washington
Supreme Court’s determination that this failure did not prejudice Woods was not objectively unreasonable. Woods is
therefore not entitled to relief on this sub-claim.
D.

Cross-examination of witness Johnny Knight

Woods alleges that counsel did not properly cross-examine
Johnny Knight about (1) his prior theft conviction and (2) his
statements to police that increasingly incriminated Woods
over time. We address those arguments in turn.

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Johnny Knight, one of the State’s key witnesses, falsely
denied any prior theft conviction during direct and crossexamination. Woods argues that his counsel was constitutionally deficient in failing to impeach Knight’s testimony with a
copy of the theft conviction record. In rejecting this argument,
the Washington Supreme Court held:
[T]he failure to obtain the certified copy of judgment
and conviction does not establish deficiency. We say
that because questioning from the prosecution and
defense established that all parties were aware that
Knight had a theft conviction. In fact, during the
questioning, Knight volunteered information about
other convictions as well. Thus, it is clear that the
jury was aware they were listening to a witness with
multiple convictions. In effect, Knight impeached
himself.
In re Woods, 114 P.3d at 619 (internal footnote omitted). This
characterization of the record is not quite accurate. Rather,
Knight denied having a theft conviction and, after Woods’s
attorney objected, admitted that he had been convicted of a
“drug transaction.” After a brief colloquy with counsel, the
trial judge stated in open court: “[Knight is] subject to recall
or you can just put in the evidence about the conviction.”
Woods’s counsel then moved on to other lines of questioning
without asking any further questions about the theft conviction or introducing any evidence pertaining to it.
[14] Whether or not the failure to introduce the certified
copy of Knight’s prior judgment and conviction was deficient,
we are convinced that the state supreme court’s determination
that Woods was not prejudiced by that failure was not objectively unreasonable. The jury was indeed made aware that
Knight had been convicted of a crime. Woods argues that
Knight’s admission of his drug conviction is irrelevant
because a conviction for a “drug transaction” is not comparable to a theft conviction because drug crimes are not crimes

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of dishonesty under Washington law. See State v. Hardy, 946
P.2d 1175, 1178 (Wash. 1997). While we agree that a drug
conviction may not be as valuable for impeachment purposes
as a theft conviction, we cannot say that the counsel’s failure
to elicit Knight’s admission to a theft conviction was sufficiently prejudicial to render the state supreme court’s determination objectively unreasonable.
Nor is Woods entitled to relief on the basis of his counsel’s
failure to confront Knight with evidence that his statements to
police changed significantly after he was charged with three
felonies. On April 28, 1996, the police questioned Knight and
reported: “Johnny Knight denied having knowledge of the
assaults or intention of any assaults that [Woods] may have
been involved in.” On May 7, 1996, Knight was reinterviewed by the police and again said nothing about Woods
confessing to the assaults.
On February 13, 1997, however, Knight was arrested for
drug and firearm crimes for which he could face significant
prison time. A week later, police interviewed Knight in jail,
and he alleged for the first time that on the day after the murders, Woods confessed that he had killed the women. During
this interview, Knight also told police that when he met up
with Woods after the murders, Woods had women’s jewelry,
cash, and some credit cards which had been taken from the
victims. Additionally, Knight claimed that Woods said he
needed “to get out of Spokane.”
By the time of Woods’s trial, Knight had been convicted of
several felonies stemming from his arrest and had been sentenced to 10 years in prison. The jury at Woods’s trial did not
learn of Knight’s conviction and sentence. Woods argues that
counsel’s failure to make the jury aware of Knight’s arrest as
a possible reason for the change in Knight’s story constituted
a Strickland violation.

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The Washington Supreme Court never addressed this subissue in its decision, nor did Woods’s personal restraint petition raise it. Nonetheless, the district court concluded that this
claim had been properly exhausted because the new factual
allegations did not fundamentally alter the legal claim already
considered by the state court.13 The district court thus considered this issue on the merits, as do we. Irrespective of whether
Woods’s counsel was deficient in failing to raise Knight’s
arrest at trial, that failure did not prejudice Woods. Ample
evidence was presented to the jury that Knight was an untrustworthy witness: he had admitted to a drug conviction and to
receiving a reward for information leading to Woods, and
defense counsel impeached Knight on the stand for having
misrepresented the amount he received as a reward. Moreover, as discussed above, the evidence against Woods from
other sources was overwhelming, including eyewitness testimony from Venus and Sherry Shaver and a multitude of
forensic and circumstantial evidence. That being the case,
there is not a “reasonable probability that . . . the result of the
proceedings would have been different” had Knight been further impeached with his February 1997 arrest and related convictions. Strickland, 466 U.S. at 694. Accordingly, Woods is
not entitled to habeas relief on this claim.
E.

Woods’s alias

[15] Woods contends that his trial counsel’s failure to
object to the use of Woods’s alias, “Michael A. Smith,” was
constitutionally deficient and prejudicial. The Washington
Supreme Court, however, determined that the use of the alias
was proper under state law as “relevant and material to prove
or disprove any of the issues in the case.” 114 P.3d at 619
(citing State v. Elmore, 985 P.2d 289, 310 (Wash. 1999);
13

The district court denied Woods’s request to introduce new evidence
supporting this claim. In his supplemental brief, Woods concedes that this
ruling was correct in light of the Supreme Court’s decision in Pinholster.
131 S. Ct. at 1398.

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State v. Cartwright, 456 P.2d 340 (Wash. 1969)). Specifically,
the Washington Supreme Court determined that, because the
identity of the perpetrator was at issue, because Woods was
booked at the jail under the name “Michael A. Smith,” and
because two of the fingerprints that were found at the crime
scene were identified as belonging to “Michael Smith,” the
use of the alias was appropriate to identify Woods as the perpetrator. Id. That determination of state law is binding on this
court. Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Thus,
even assuming Woods’s attorney was deficient for not objecting to the use of his alias, we cannot conclude that it was prejudicial; even had defense counsel made the objection, it
would have been properly overruled. Woods is therefore not
entitled to habeas relief on this claim.
F.

The State’s DNA evidence

Woods argues that his trial counsel failed to effectively
challenge the State’s DNA evidence. Specifically, Woods
alleges that his counsel were ineffective in the following three
ways: (1) they failed to present a defense expert to interpret
the results of the DNA tests; (2) they failed to explore the
issue of DNA contamination; and (3) they failed to ensure that
the jury could examine the autoradiograms (“autorads”).
The district court did not reach the merits of claims (1) and
(2) (collectively the “DNA-IAC” claims) because it concluded that these claims had not been presented to the Washington Supreme Court and were therefore technically
exhausted, but procedurally defaulted. See Wash. Rev. Code
§ 10.73.090; see also Coleman, 501 U.S. at 735 n.1.14 With
14
As discussed above, the district court did not specify whether the
COA encompassed procedural issues related to Woods’s IAC claim or
only those parts of the claim that the district court determined were
exhausted and, therefore, considered on the merits in its final judgment.
As noted above in footnote 11, we construe the COA to encompass both
the specific enumerated claims and any related procedural issues. Therefore, we consider whether the DNA-IAC claims were properly exhausted
in state court.

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respect to issue (3) above, the court held that because the trial
court correctly refused to send the autorads to the deliberation
room for consideration, Woods could not prevail on his IAC
claim related to the autorads. We consider first Woods’s
DNA-IAC claims and then address the merits of Woods’s
autorad claim.
1.

DNA-IAC Claims

The State argues that the factual and legal allegations
underlying Woods’s DNA-IAC claims were never presented
to the state supreme court. Woods argues that he exhausted
the DNA-IAC claims in state court or, in the alternative, that
if his claims were not exhausted, that he established cause and
prejudice for the procedural default. It is undisputed that
Woods’s federal habeas petition makes specific reference for
the first time to defense counsel’s failure to explore the possibility of DNA contamination or to present the testimony of a
defense DNA expert. On the other hand, Woods presented
several facts in his PRP that support these claims.
Ultimately, we need not decide the question of whether
Woods’s claims are exhausted. If Woods exhausted his claims
and the state supreme court adjudicated the claims on the merits, we conclude that the state court’s decision was not unreasonable. If Woods’s federal claims allege new facts and legal
theories such that the claims are unexhausted, we conclude
that Woods cannot show cause and prejudice for his failure to
raise these claims with the state supreme court, and that his
claims are therefore procedurally defaulted.
In his PRP, Woods alleged that his counsel provided ineffective assistance in challenging the DNA evidence at trial
and cited the Supreme Court’s decision in Strickland in support of that claim. Woods alleged that special counsel Fred
Leatherman, who was responsible for cross-examining the
State’s DNA expert, was unavailable and ineffective. Woods
further alleged that his defense counsel, public defenders from

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Spokane County, lacked training and experience and were
generally incapable of handling the DNA evidence in his case.
To establish that trial counsel were ineffective, Woods
alleged that “Leatherman [, special counsel brought in for purposes of cross-examining the prosecution’s DNA witness,]
was based in Seattle . . . [,] was himself trying another case
in federal court in Seattle through the month of June,” and
“was available to conduct his portion of the case, i.e., cross
examining Dr. John Brown, the state’s [DNA] expert, only on
Mondays.” Woods also stated in his PRP that Leatherman
flew into town on the day of cross-examination and out the
same day. Leatherman’s only communication following
cross-examination of DNA expert Dr. Brown, Woods alleged,
was a fax to defense counsel with “some points” for closing
argument. Woods further noted that communication between
defense counsel and Leatherman was so poor that defense
counsel confessed during closing argument to finding the
DNA evidence confusing.
Woods also presented facts that could support his claim
that his trial counsel were incapable of interpreting the DNA
evidence without an expert. Specifically, Woods alleged that
he was denied his Sixth Amendment right to effective assistance of counsel because “[t]he attorneys from Spokane
County Public Defender’s Office did not feel capable of handling the DNA evidence in the case.” Woods explained that
in “critical areas of investigation counsel did nothing,” that
counsel lacked training and experience and were overworked,
and that counsel were unprepared and disorganized. Woods
offered as support for this argument his attorney’s statement
to the jury during closing arguments and directly after the
DNA cross-examination that “the DNA evidence ‘was confusing to me.’ ”
[16] Assuming that the facts Woods presented to the state
court were specific enough to exhaust the DNA-IAC claims,
our review of the state court’s decision is limited to those

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facts. Pinholster, 131 S. Ct. at 1398. Based on this record, and
keeping in mind the double-deference due the state court’s
conclusion under section 2254(d)(1), see Harrington v. Richter, 131 S. Ct. 770, 788 (2011), we cannot say that the Washington Supreme Court unreasonably denied Woods’s claims
because Woods did not establish prejudice under Strickland.
Although Woods challenged the effectiveness of his trial
counsel’s treatment of the state’s DNA analysis, he presented
no facts to the state court that showed the analysis was or
could be incorrect.
Only in the course of federal habeas litigation did Woods
present affidavits by DNA experts—evidence that we are precluded from considering under section 2254(d)(1) by Pinholster15—that Dr. Brown’s testimony was misleading and
scientifically questionable. Without such factual allegations,
the state court could have reasonably concluded that even the
most rigorous cross-examination coupled with the assistance
and testimony of a qualified expert would not have allowed
Woods’s trial counsel to shed a different light on the DNA
evidence. The fact that Woods’s attorneys might have challenged the evidence more robustly does not create a “substantial” likelihood that the result of his trial would have been
different but for their shortcomings. Harrington, 131 S. Ct. at
15

Woods reads Pinholster to allow courts to consider additional evidence not presented to the state court “when a petitioner’s inability to
develop the facts supporting his claim was the fault of the state court
itself.” 131 S. Ct. at 1417 n.5 (Sotomayor, J., dissenting). Even if such an
exception to Pinholster exists, it would not apply to this case. Woods
argues that the Washington Supreme Court thwarted his ability to develop
the facts supporting his claims because it 1) denied his requests for funds
to hire a DNA expert; 2) failed to grant depositions of the State’s DNA
experts; and 3) denied his request to develop facts at an evidentiary hearing. Yet none of Woods’s motions for funding, depositions, or an evidentiary hearing mentioned the issues of DNA contamination or trial counsel’s
failure to hire a DNA expert. We thus cannot say that the state supreme
court’s denial of Woods’s requests, rather than post-conviction counsel’s
lack of diligence, prevented Woods from developing factual support for
these claims.

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792. We therefore conclude that, if Woods’s DNA-IAC
claims were exhausted, he is not entitled to habeas relief
because the Washington Supreme Court’s adjudication of his
claim was not contrary to nor an unreasonable application of
federal law.
We also conclude that if the claims were not exhausted,
there is no cause to excuse the procedural default. Woods
argues that any failure to present his claim to the Washington
Supreme Court was due to ineffective representation by his
state post-conviction counsel. The Supreme Court has unambiguously held, however, that ineffective representation is not
cause for procedural default. See Coleman v. Thompson, 501
U.S. 722, 752-54 (1991); see also Manning v. Foster, 224
F.3d 1129, 1133 (9th Cir. 2000).16 Thus, if Woods did not
fairly present his claims to the state court, they are procedurally defaulted.
In sum, we need not reach the question of whether Woods
exhausted his state law remedies with regard to his DNA-IAC
claims or instead raises new unexhausted claims. In either
case, Woods is not entitled to habeas relief, and we affirm the
district court’s denial of these claims.
2.

The autoradiograms

Woods argues that his counsel’s failure to ensure that the
DNA autorads17 went into the jury room amounted to a Strick16
Woods contends that Coleman does not apply here because Washington provides a right to effective post-conviction assistance in capital cases.
See Wash. R. App. P. 16.25. Rule 16.25 states that “[a]ppointed counsel
must have demonstrated the necessary proficiency and commitment which
exemplifies the quality of representation appropriate to capital cases.” The
rule further provides that “[a]t least one attorney so appointed must have
at least three years of experience in handling appeals or collateral reviews
on criminal convictions and must be learned in the law of capital punishment by training or experience.” There is no evidence that Woods’s counsel did not satisfy these requirements.
17
An autoradiogram is “a photographic recording of the positions on a
film where radioactive decay of isotopes has occurred.” Committee on

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land violation. At trial, the autorads were used to help illustrate Dr. Brown’s testimony regarding DNA. In re Woods,
114 P.3d at 621. The jurors were informed that the autorads
were for demonstrative purposes only. Id. During deliberations, the jury asked to see the autorads, but the trial court
denied the request on the basis that they were only used for
illustrative purposes. Id. Neither the prosecution nor defense
counsel objected to this ruling. Id.
[17] The Washington Supreme Court held that, “when an
exhibit is used for illustrative purposes only and the jurors are
instructed that the exhibit is not evidence, than [sic] the
exhibit should not go to the jury room.” Id. at 621 (citing
State v. Lord, 822 P.2d 177, 194 (Wash. 1991)). Thus, the
court held that the trial court correctly refused to send the
autorads to the deliberation room for consideration. Id. at 428.
We are bound to defer to that interpretation of Washington
state law. See Bradshaw, 546 U.S. at 76. In light of that ruling, Woods cannot show prejudice resulting from his counsel’s failure to object to the trial court’s exclusion of the
autorads from the jury deliberation room. Even if defense
counsel had objected, the objection would have been properly
overruled under Washington law. Woods is therefore not entitled to habeas relief on this claim.
G.

Venus Shaver’s testimony

In his federal habeas petition, Woods asserted that he
received ineffective assistance of counsel when his trial counsel failed to address Venus Shaver’s “recovery” of her memory of the attack and failed to cross-examine her adequately
on her prior false claim that Woods raped her. The district
court concluded that because Woods had failed to fairly present these claims to the state court, they were procedurally
DNA Technology in Forensic Science et al., DNA Technology in Forensic
Science 167 (1992).

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barred. On appeal, Woods argues that the district court’s
determination was erroneous. We disagree.
In his opening brief, Woods admits that he did not specifically address in his PRP his counsel’s failure to impeach
Venus Shaver effectively. In fact, Woods’s Washington
Supreme Court PRP makes no mention of either Venus
Shaver or her “recovered” memories. He argues, however,
that because these new arguments do not fundamentally alter
his claim that trial counsel were ineffective and unprepared to
impeach witnesses, he fully and fairly presented it to the state
court.
[18] Although Woods alleged the specific Sixth Amendment guarantee recognized by Strickland, his state court petition did not make any reference to his counsel’s failure to
impeach Venus Shaver. The most analogous claim is Woods’s
allegation that his counsel failed to impeach Johnny Knight
properly. That claim simply did not provide a sufficient factual basis for the state supreme court to have a fair opportunity to apply controlling legal principles to the facts relating
to the claim. Thus, we agree with the district court’s judgment
that Woods failed to exhaust this claim and that it is procedurally defaulted.18
H.

Cumulative Deficiencies

[19] Woods argued in his PRP that the cumulative impact
of his counsel’s deficiencies prejudiced his defense and
requires reversal of his conviction. We have previously recognized that “prejudice may result from the cumulative impact
18

Woods contends, however, that he has established cause and prejudice
excusing his procedural default on this issue. In particular, he contends
that his failure to raise this issue before the state supreme court was a
result of ineffective assistance of his post-conviction counsel. As we have
already noted, attorney ineffectiveness “in the post-conviction process is
not considered cause for the purposes of excusing the procedural default
at that stage,” Manning v. Foster, 224 F.3d at 1133.

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of multiple deficiencies.” Cooper, 586 F.2d at 1333.
“[A]lthough individual errors may not rise to the level of a
constitutional violation, a collection of errors might violate a
defendant’s constitutional rights.” Davis, 384 F.3d at 654 (citing Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995)).
Although Woods’s trial counsel might not have provided a
model defense, counsel’s “missteps and misjudgments did not
render [Woods]’s trial fundamentally unfair.” Id. We therefore affirm the denial of relief on Woods’s claim of cumulative deficiency.
XI.

CONCLUSION

For the foregoing reasons, we affirm the district court’s
denial of Woods’s petition.
AFFIRMED.