Robert Jones, Jr. v. Charles Ryan
FILED OPINION (RONALD M. GOULD, RICHARD C. TALLMAN and CARLOS T. BEA) AFFIRMED. Judge: RMG Authoring, FILED AND ENTERED JUDGMENT. 
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT GLEN JONES, Jr.,
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
June 14, 2012—San Francisco, California
Filed August 16, 2012
Before: Ronald M. Gould, Richard C. Tallman, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould
Page: 1 of 26
JONES v. RYAN
Page: 2 of 26
Daniel D. Maynard (argued) and Jennifer Reiter, Maynard
Cronin Erickson Curran & Sparks, PLC, Phoenix, Arizona,
for petitioner-appellant Robert Jones.
Lacey Stover Gard (argued) and Jeffrey A. Zick, Arizona
Attorney General’s Office, Tucson, Arizona, for respondentappellee Charles Ryan.
GOULD, Circuit Judge:
Petitioner-Appellant Robert Jones (“Jones”) appeals the
district court’s denial of his 28 U.S.C. § 2254 petition for a
writ of habeas corpus. Jones was convicted of six murders in
Arizona state court and was sentenced to death in 1998. He
Page: 3 of 26
JONES v. RYAN
was also convicted of first-degree attempted murder, aggravated assault, armed robbery, and first-degree burglary. The
district court granted a certificate of appealability (“COA”) on
Jones’s prosecutorial misconduct claim. We expand the COA
to include the ineffective assistance of counsel allegations
related to Jones’s prosecutorial misconduct claim. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm the district
court’s denial of Jones’s habeas corpus petition.
In 1996, six people were killed during two armed robberies
in Tucson, Arizona. On May 30, the Moon Smoke Shop was
robbed, where two victims were killed and a third was
wounded by gunfire. On June 13, the Fire Fighters Union Hall
was robbed, and four persons there were killed.
The Moon Smoke Shop robbery began when two robbers
followed a customer, Chip O’Dell, into the store and at once
shot him in the back of the head. Four employees were in the
store: Noel Engles, Steve Vetter, and Mark Naiman were
behind one counter concentrating on the stock, and Tom
Hardman was behind another. After hearing the gunshot,
Engles and Naiman looked up to see a robber in a longsleeved shirt, dark sunglasses, and a dark cowboy hat wave a
gun at them and yell to get down. Naiman recognized the gun
as a 9mm. Engles dropped to his knees and pushed an alarm
Engles noticed a second robber move toward the back room
and heard someone shout, “Get the f*** out of there!” The
We draw our factual statement from the findings of fact made in the
state court proceedings. For the Arizona Supreme Court’s more detailed
description of events, see State v. Jones, 197 Ariz. 290, 297 -98 (2000).
Jones may not rebut the factual findings made in his state court proceedings absent clear and convincing evidence. Gonzalez v. Pliler, 341 F.3d
897, 903 (9th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1)). This he has not
done and we accept the factual findings of the state court proceedings.
JONES v. RYAN
Page: 4 of 26
gunman at the counter told Naiman to open the cash register.
After Naiman did so, the gunman reached over the counter
and began firing at the others on the floor. Thinking that the
others were dead, Naiman ran out of the store and called 911
at a pay phone. On the floor behind the counter, Engles heard
shots from the back room and then, realizing the gunmen had
left the store, also ran out of the store, by the back door. Running up the alley to get help, Engles saw a light-colored
pickup truck with two people in it accelerate and turn on a
street into heavy traffic.
Naiman and Engles survived. Vetter also survived,
although shot in the arm and face. O’Dell and Hardman were
both killed by close range shots to the head, O’Dell at the
entrance to the store and Hardman in the back room. Three
9mm shell casings were found in the store, one beside O’Dell
and two near the cash register. Two .380 shells were found
near Hardman’s body. Two weeks after the robbery, Naiman
met with a police sketch artist who used his description of the
gunmen to create sketches of the suspects. These sketches
were released to the media in an effort to catch the perpetrators. At trial, two acquaintances of Jones testified that when
they saw the police sketches their first thought was that they
looked like Jones.
The Fire Fighters Union Hall was robbed two weeks later.
There were no survivors of the violence that befell those present there. Nathan Alicata discovered the robbery at 9:20 p.m.
when he arrived at the Union Hall and discovered the bodies
of Maribeth Munn (Alicata’s girlfriend), Carol Lynn Noel
(the bartender), and a couple, Judy and Arthur Bell. The
police investigation turned up three 9mm shell casings, two
live 9mm shells, and two .380 shell casings. About $1300 had
been taken from the open cash register, but the robbers were
unable to open the safe. The coroner, who examined the
bodies at the scene, concluded that the bartender had been
shot twice, and that the other three victims were shot through
the head at close range as their heads lay on the bar. The bar-
Page: 5 of 26
JONES v. RYAN
tender’s body had a laceration on her mouth consistent with
having been kicked in the face, and Arthur Bell’s body had a
contusion on the right side of his head showing he was struck
with a blunt object, possibly a pistol.
In 1998, petitioner Robert Jones was convicted of these
ghastly crimes of multiple murder and sentenced to death. His
co-defendant, Scott Nordstrom, had been convicted in a separate proceeding six months earlier. See State v. Nordstrom,
200 Ariz. 229 (2001). Jones’s theory of the case at trial and
on appeal was that Scott Nordstrom and his brother David
Nordstrom committed these murders, while he was not
involved. While there was no physical evidence or positive
eyewitness identifications conclusively linking Jones to the
crimes, both he and his truck matched descriptions given by
survivors of the Moon Smoke Shop robbery. The prosecution’s case against Jones was based in large part on David
Nordstrom’s testimony. David Nordstrom gave a detailed
account of his role as a getaway driver in the Moon Smoke
Shop robbery, and identified Jones as a robber and shooter, as
well as the guns he carried. But that was not all of the testimony against Jones. Lana Irwin, an acquaintance of Jones,
also testified that she overheard Jones talking about details of
these murders that the police had not released to the general
public. Jones’s friend David Evans gave additional implicating testimony.
David Nordstrom’s Testimony
At Jones’s trial, David Nordstrom gave extensive testimony
about the events surrounding the two robberies. In January
1996, David Nordstrom was released from prison after a conviction for theft, and began living at his father’s home in Tucson, Arizona. At the time of the offenses in this case, David
Nordstrom was under “home arrest” (requiring him to be
home by a certain time every evening) and monitored by an
ankle monitor. David Nordstrom re-established his friendship
with Jones and began working construction jobs. Before April
JONES v. RYAN
Page: 6 of 26
1996, David Nordstrom obtained a .380 semiautomatic pistol
from a friend, Cindy Inman, which he gave to Jones after
Jones requested it for protection. Cindy Inman testified at trial
that David Nordstrom took this pistol without her permission
and that when she asked for it back several months later, he
told her he had dropped it in the bottom of a lake.
On May 30, 1996, Scott Nordstrom and Jones picked up
David Nordstrom in Jones’s truck, an old white Ford pickup.
Jones was wearing his usual attire: a long-sleeved western
shirt, Levi’s, boots, sunglasses, and a black cowboy hat. In a
parking lot near the Tucson Medical Center, Jones broke into
a VW station wagon that he aimed to steal. He could not start
it, but he found a 9mm pistol. The owner of the VW testified
that his car had been broken into and his gun stolen on May
30. Jones kept the 9mm and gave Scott Nordstrom the .380
pistol he had obtained from David Nordstrom.
As the three continued driving, they discussed the possibility of a robbery, and Jones suggested that they rob the Moon
Smoke Shop. He parked behind the store, telling David Nordstrom that Jones and Scott Nordstrom would go in, rob the
store, and be right out. David Nordstrom, while waiting in the
pickup truck, then heard gunfire from inside. According to
David Nordstrom’s testimony, after returning to the truck,
Jones said, “I shot two people,” and Scott Nordstrom said, “I
shot one.” David Nordstrom also testified that Jones and Scott
Nordstrom were mad at him for unnecessarily driving the
truck past the front of the shop during the getaway. Jones,
Scott Nordstrom, and David Nordstrom split the money from
the Moon Smoke Shop robbery.
On the day of the Union Hall murders, Scott Nordstrom
gave David Nordstrom a ride home. David Nordstrom’s
parole officer produced records at trial verifying that David
Nordstrom’s ankle-monitoring unit indicated that he had not
left his father’s home on the night of the murders. Late that
evening, according to David Nordstrom, Jones entered David
Page: 7 of 26
JONES v. RYAN
Nordstrom’s father’s house and told David Nordstrom that he
and Scott Nordstrom had robbed the Union Hall. David Nordstrom’s stepmother Terri Nordstrom also testified that she
remembered Jones showing up at her house late at night looking for David Nordstrom at some point in June 1996, which
Again per the testimonial story told by David Nordstrom,
Jones told David Nordstrom that because the bartender could
not open the safe, Scott Nordstrom kicked her and shot her.
Jones said that he then shot the three other witnesses in the
back of the head. Jones, Scott Nordstrom, and David Nordstrom later disposed of the guns by throwing them into a pond
south of Tucson, and Scott Nordstrom and David Nordstrom
burned Arthur Bell’s wallet at another location. David Nordstrom kept the secrets of the murders until he saw an appeal on
television for information. He testified that his conscience
was getting to him, so he told his girlfriend, Toni Hurley,
what he knew. Hurley later made an anonymous 88-CRIME
call, which led to David Nordstrom’s contact with the police,
and the ultimate release of the information.
Lana Irwin’s Testimony
David Nordstrom’s testimony was key to the prosecution,
but he was not the only important witness for the prosecution.
Jones was also linked to the crime by Lana Irwin, who testified that she overheard him discuss details of the murders at
her home in Phoenix with a mutual acquaintance on several
occasions in the summer of 1996. Irwin also testified that she
colored Jones’s hair from red to brown because “he was hiding from someone.” Irwin testified that she overheard the following bits of information from Jones:
Jones said that he had two partners, brothers, that
one was inside and one was in the truck, and that
he was mad at the one in the truck.
JONES v. RYAN
Jones said that he had killed four or five people
in Tucson by shooting them in the head, and that
his partner had killed two.
One of the people Jones shot was a man by a
door (which the prosecutor equated with Chip
“They ran to the back room. [Jones’s] partner
chased them and they were shot.” The prosecutor
argued that this described the murder of Tom
“One door was open and one had to be kicked
in,” which the prosecutor argued described the
kicked in door in the back of the Moon Smoke
Shop next to which Tom Hardman was killed.
The prosecutor further argued that this door was
kicked in by the intruders to get at Tom Hardman. The door was actually kicked in by police
when they were securing the scene. This inconsistency forms the basis of Jones’s Claim 1-A.
Some women were killed at a “bar or maybe a
restaurant,” “a red room, everything was red.”
This description matches the Union Hall.
There were three women who “weren’t supposed
to be there so they had to be shut up so they
didn’t run their necks.” Irwin’s daughter also testified that she had overheard Jones saying that
“the bitches weren’t supposed to be there,” and
that she overheard Jones talk about a smoke shop.
Jones shot an older man sitting in a chair with his
head back in the same red room, who the prosecutor argued was Arthur Bell. Jones claims these
Page: 8 of 26
Page: 9 of 26
JONES v. RYAN
statements are inconsistent with other evidence of
the position of Arthur Bell’s Body in Claim 1-B.
Jones “pistol whipped” the older man in the head
with a gun. He said it “sounded like a baseball
Jones said that he didn’t get enough money. The
prosecutor argued this was because Jones and
Scott Nordstrom couldn’t break into the safe at
the Union Hall.
Irwin testified that she first described these details to police
as a dream about a red room because she didn’t want to tell
the police what she knew out of fear for her safety. On crossexamination, Jones’s counsel attacked her credibility by
bringing out several details of this “dream” that did not match
what had happened at the robbery. However, the prosecutor
argued that Irwin could only have learned the facts that corresponded to the robberies from Jones because Irwin had never
been to Tucson and many of the corresponding facts had not
been released to the general public.
David Evans’ Testimony
In addition to David Nordstrom and Irwin’s testimony, the
prosecution also presented the incriminating testimony of
David Evans. David Evans, a friend of Jones, testified that he
was present on several occasions when Jones had conversations about the sketches of the Moon Smoke Shop robbery
suspects that had been published in the newspaper. In the first
conversation, Jones’s roommate Chris Lee asked Jones if he
was part of the killings, and Jones responded “[i]f I told you,
I’d have to kill you.” Although this possibly overworked witticism might be viewed as a joke, a jury could also rationally
view it as an admission by Jones. In the second conversation,
Evans was giving Jones a hard time about his similarity to the
sketches, and Jones said that “if he told [Evans], he would
JONES v. RYAN
Page: 10 of 26
have to kill [him],” and that “you don’t leave witnesses.” A
jury could also view this as an admission of a deadly modus
operandi. Evans also testified that Jones went to Phoenix
twice in 1996, and that on the second occasion he said that he
couldn’t stay in Tucson because “he thought some people
would be looking for him because he had killed somebody.”
If believed by the jury, these statements could easily be
viewed as an admission of culpability.
Subsequent Procedural History
Jones’s conviction was automatically appealed directly to
the Arizona Supreme Court, which affirmed the conviction on
June 15, 2000. Jones, 197 Ariz. 290. The United States
Supreme Court denied certiorari on April 16, 2001. Jones v.
Arizona, 532 U.S. 978 (2001). Jones then returned to Arizona
Superior Court to file his Petition for Post-Conviction Relief
(“PCR”) on February 15, 2002. In his PCR petition, Jones
alleged the various instances of prosecutorial misconduct that
make up Claim 1 of his habeas corpus petition for the first
time. Jones also alleged that his appellate counsel was ineffective for not raising these issues on direct appeal.
The Arizona PCR court denied relief on September 18,
2002, holding that Jones’s allegations of prosecutorial misconduct were precluded under Arizona Rule of Criminal Procedure 32.2(a)(3). In the alternative, it also considered and
denied each claim on its merits. It dismissed Jones’s ineffective assistance of appellate counsel claims, holding that
because the precluded prosecutorial misconduct claims “were
also dismissed based on substantive grounds, [Jones] cannot
establish that he suffered prejudice because of the ineffective
performance of his appellate counsel.” The Arizona Supreme
Court summarily denied review on September 9, 2003, after
which Jones filed his habeas corpus petition in the district
court on September 18, 2003. The district court denied the
habeas corpus petition. Jones now presents us with his appeal
of the district court’s decision.
Page: 11 of 26
JONES v. RYAN
A prisoner appealing the district court’s final order in a
habeas corpus proceeding must first obtain a certificate of
appealability (“COA”) by making “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c). This
language codifies the standard set forth in Barefoot v. Estelle,
463 U.S. 880, 893 (1983): “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.’ ” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)). Thus not every issue raised in a habeas
corpus petition earns an automatic right to appeal, an appeal
may lie only for issues that are worthy of fair debate by reasonable judges. The district court granted a COA on one
Whether Petitioner has established cause and prejudice to overcome the procedural default of Claim 1,
which alleges various instances of prosecutorial misconduct.
Jones asks us to expand the COA to include thirteen allegations of ineffective assistance of counsel and nine additional
claims, all of which were rejected by the district court. After
carefully considering these claims, on which we required the
government to submit responsive briefing, we conclude that
most issues raised do not surmount the barrier to review posed
by the COA requirements of AEDPA. We hold that the only
additional issue that reasonable jurists could debate concern
Jones’s allegations of ineffective assistance of trial counsel
related to trial counsel’s failure to discover and use the inconsistencies in the testimony regarding the kicked-in door in
Jones’s trial, the testimony at Scott Nordstrom’s trial, and
several police reports. We expand the COA to include the following issue:
JONES v. RYAN
Page: 12 of 26
Whether Petitioner’s trial counsel rendered constitutionally deficient performance by failing to discover
and utilize the inconsistencies in the testimony concerning the kicked-in door at Petitioner’s trial, the
testimony at Scott Nordstrom’s trial, and various
We deny Jones’s request to further expand the COA.
We review the district court’s denial of a petition for writ
of habeas corpus de novo. Lopez v. Thompson, 202 F.3d 1110,
1116 (9th Cir. 2000) (en banc). Under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), a federal
court cannot grant habeas relief based on a claim that was
adjudicated on the merits in state court proceedings unless the
state court’s decision was: (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or
(2) “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d). Jones’s federal habeas petition was filed
after 1996 and must be reviewed under the strict standards of
AEDPA. We review the last reasoned state decision regarding
the claims, here the Arizona PCR court’s 2002 decision.
Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005).
A claim in a federal habeas petition may be procedurally
defaulted if it was actually raised in state court but found to
be defaulted on an adequate and independent state procedural
ground. Coleman v. Thompson, 501 U.S. 722, 729 (1991).
Arizona Rule of Criminal Procedure 32.2(a)(3) is independent
of federal law and has been regularly and consistently applied,
so it is adequate to bar federal review of a claim. Oritz v.
Stewart, 149 F.3d 923, 931 -32 (9th Cir. 1998). But we will
consider the merits of the claim if the petitioner can demonstrate either (1) “cause for the default and actual prejudice as
Page: 13 of 26
JONES v. RYAN
a result of the alleged violation of federal law,” or (2) “that
failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
The district court held that Jones’s prosecutorial misconduct claim was procedurally defaulted because the PCR court
had invoked Arizona Rule of Criminal Procedure 32.2(a)(3)
to find it procedurally barred. To address whether ineffective
assistance of appellate counsel was sufficient cause to excuse
the procedural default, the district court addressed the merits
of each of Jones’s prosecutorial misconduct allegations,
applying AEDPA deference to the PCR court’s merits determination.2 The district court determined that the allegations
lacked merit, and therefore “appellate counsel was not ineffective for failing to raise them on appeal” and “appellate
[counsel’s] ineffectiveness does not constitute cause to excuse
We examine the merits of Claim 1 in the next Section, and
like the district court decide that it is without merit. It should
be obvious that the failure of an attorney to raise a meritless
claim is not prejudicial, Boag v. Raines, 769 F.2d 1341, 1344
(9th Cir. 1985), so the PCR court’s rejection of Jones’s ineffective assistance of appellate counsel claim is not an unreasonable application of Strickland v. Washington, 466 U.S.
668, 687 (1984). We hold that the alleged ineffectiveness of
We have not yet determined whether federal courts should give
AEDPA deference to the state court determination on an ineffective assistance of counsel claim when deciding whether that claim constitutes cause
for procedural default. Compare, e.g., Fischetti v. Johnson, 384 F.3d 140,
154 -55 (3d Cir. 2004) (holding that “AEDPA does not establish a statutory high hurdle for the issue of cause” to overcome procedural default),
with Powell v. Kelly, 531 F. Supp. 2d 695, 724 (E.D. Va. 2008) (holding
that an ineffective assistance claim alleged as cause is subject to AEDPA
principles). We need not and do not decide that issue here. For even if no
AEDPA deference applies to the assessment of cause and prejudice, we
would hold that the PCR court’s merits determinations are correct even
under de novo review.
JONES v. RYAN
Page: 14 of 26
Jones’s appellate counsel for not presenting these claims to
the Arizona Supreme Court does not constitute cause to
excuse Jones’s procedural default of these claims. See Sexton
v. Cozner, 679 F.3d 1150, 1161 (9th Cir. 2012). Jones’s alternative contentions that the procedural default doctrine does
not apply to these claims are all without merit.
Jones alleges that his due process and fair trial rights under
the Fifth and Fourteenth Amendments were violated by
repeated misconduct by Prosecutor David White. He first
challenges two crime-scene details that Lana Irwin testified
she overheard from Jones, but which Jones claims were
caused by the police after the perpetrators left. First, Jones
points to White’s argument that the intruders had kicked in
the office door in the back room of the Moon Smoke Shop,
while police reports establish that this door was kicked in by
police after the intruders left (Claim 1-A). Second, Jones
claims that Arthur Bell was found slumped over the bar at the
Union Hall, but that “his head was moved back over his
chair” at some point after the police arrived but before photos
were taken (Claim 1-B). From these alleged inconsistencies,
Jones asks us to infer that the police or prosecution showed
Irwin pictures of the crime scene before trial to bolster her
testimony. He contends that White suborned perjury and
unlawfully manipulated evidence to make Irwin’s testimony
seem consistent with the facts.
Jones also alleges that Prosecutor White improperly tried to
deflect suspicion from David Nordstrom by eliciting misleading testimony that implied only one of the two police sketches
looked like a Nordstrom brother (Claim 1-C) and making a
false avowal to give a foundation for the test of David Nordstrom’s electronic monitoring system to support an alibi for the
Union Hall murders (Claim 1-D). His final allegation is that
the prosecution suppressed exculpatory evidence (Claim 1-E).
Page: 15 of 26
JONES v. RYAN
 Review for prosecutorial misconduct claims on a writ
of habeas corpus is “the narrow one of due process, and not
the broad exercise of supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 642 (1974)). For Jones to gain
habeas relief, the alleged misconduct must have “so infected
the trial with unfairness as to make the resulting conviction a
denial of due process.” Id. at 181 (quoting Donnelly, 416 U.S.
at 642). A prosecutor’s knowing use of false testimony to get
a conviction violates due process. Napue v. Illinois, 360 U.S.
264, 269 (1959). To prevail on a due process claim based on
the presentation of false evidence, a petitioner must show
“that (1) the testimony (or evidence) was actually false, (2)
the prosecution knew or should have known that the testimony was actually false, and (3) . . . the false testimony was
material.” Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005)
(en banc) (quoting United States v. Zuno-Arce, 339 F.3d 886,
889 (9th Cir. 2003)). False testimony is material such that the
conviction must be set aside if “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Id. (quoting United States v. Bagley, 473
U.S. 667, 678 (1985)). The question is not “whether the
defendant would more likely than not have received a different verdict” if the false testimony had not been presented, but
whether the defendant “received a fair trial, understood as a
trial resulting in a verdict worthy of confidence.” Id.
 An allegation that the prosecution failed to disclose
material evidence is governed by Brady v. Maryland, 373
U.S. 83, 87 (1963). Under Brady, “[t]he government violates
its constitutional duty to disclose material exculpatory evidence where (1) the evidence in question is favorable to the
accused in that it is exculpatory or impeachment evidence, (2)
the government willfully or inadvertently suppresses this evidence, and (3) prejudice ensues from the suppression (i.e., the
evidence is ‘material’).” Silva v. Brown, 416 F.3d 980, 985
(9th Cir. 2005).
JONES v. RYAN
Page: 16 of 26
The Kicked-in Door
There were two doors side by side in the back room of the
Moon Smoke Shop leading to two smaller rooms, a bathroom
and an office. Police reports from the officers first on the
scene show that the office door was kicked in by police when
they were securing the premises. Detective Salgado testified
that “the rest room door was damaged” in grand jury proceedings. Pictures of the bathroom door taken at the crime scene
show a mark on the outside panel about two feet off the floor.
Jones argues that Detectives Brenda Woolridge and Joseph
Godoy perjured themselves by testifying that the office door
was kicked in by the robbers, and that Prosecutor White
knowingly used this false testimony to strengthen the testimony of Lana Irwin. At Scott Nordstrom’s trial, which White
also prosecuted, Godoy had testified that the police had
kicked in the office door. Yet at Jones’s trial eight months
later, when White elicited testimony from him to lay the foundation for the photograph of the damaged office door, Godoy
failed to mention that the police kicked in this door:
Let me show you two other photographs. Did
you find any damage to one of the doors in the
Showing you what has been marked State’s 15
and 16, do those represent a door that you saw
that was damaged?
The next day, Lana Irwin testified about various things she
had overheard Jones say, including a statement about a kicked
Page: 17 of 26
JONES v. RYAN
Do you remember — you started to say something about a door. Do you remember hearing
any conversation about doors?
One door was open and one door had to be
I’m sorry. One had to be kicked in?
Yes. One was kicked in, one was open.
On the final day of trial, Detective Woolridge testified about
her interview with Lana Irwin and the kicked-in door:
Were you present at the first trial?
Yes, I was.
Did you sit there every day of the testimony?
Yes, I did.
Just like you have been here?
Did Lana Irwin tell you something about a door
being kicked in?
Yes, she did.
Was there a door kicked in, in one of these
Yes, in the back room at the Moon Smoke Shop.
As shown in State’s 50.
JONES v. RYAN
The fact that a door was kicked in, was that ever
mentioned at the first trial in this case?
No, it was not.
Lana Irwin, did you ever see her in the audience
at the first trial?
Yes, it is.
Page: 18 of 26
The bathroom door was not discussed at Jones’s trial.
Prosecutor White argued that the intruders kicked in a door
during both his opening statement and closing argument. During his opening statement he said:
And there’s doors here. This is the bathroom and
there is a closet. One of these doors has been kicked
in. Apparently the shooter kicked in the door,
ordered Tom Hardman to come out and lie on the
ground and executed him, two shots.
During his closing argument he emphasized that Lana Irwin
could “describe in graphic detail the crime that [Jones and
Scott] commit[ed],” discussing the many similarities between
Irwin’s testimony and the crime, including the kicked-in door:
She overhears the defendant saying one door had to
be kicked in. Remember that? And we have a door
kicked in. We have a photograph, one of these doors,
this one right here, 58, was kicked in.
Now, ladies and gentlemen, that particular fact
wasn’t even brought out at the trial of the other guy,
Scott Nordstrom. That didn’t come out at the trial,
and yet Lana Irwin tells you she overhears this
Page: 19 of 26
JONES v. RYAN
defendant telling Coats the one door had to be
kicked in. And sure enough.
Prosecutor White’s statements, supported by Detectives
Godoy’s and Woolridge’s testimony, were false for two reasons: (1) the office door shown in the pictures was kicked in
by police, not by the intruders, and (2) the kicked-in door was
testified about by Detective Godoy in Scott Nordstrom’s trial.
The State argues that this was “an innocent mistake,” that the
police and prosecutor mixed up the bathroom and office doors
when preparing for trial, and the evidence shows that “Scott
Nordstrom ‘kicked or pounded on’ the bathroom door,” which
was damaged as a result. The PCR court accepted the State’s
explanation. We hold it was not unreasonable to do so.
The PCR court was “troubled by the contradiction”
between the testimony at the two trials, but held that the testimony concerning the kicked-in door was not material given
the overall context of the evidence presented at trial. The PCR
court stressed that “the kicked-in door was but one of the
many correlations between Jones’s statements overheard by
Irwin and the facts of the crime,” such that Jones would likely
have been convicted “even if Irwin had not testified about the
 We agree that the testimony about the kicked-in door
was not material. The kicked-in door was only relevant
because it was thought to be one of the details of the crime
that Lana Irwin had learned from Jones. But this was only a
small part of the mosaic of trial testimony presented by Lana
Irwin. That this detail is inconsistent would not have done
much to undermine Irwin’s credibility, given that she was
only testifying that she heard Jones say one door had to be
kicked in. There are many ways this information could have
been distorted: Scott Nordstrom (who pursued and killed
Hardman) could have exaggerated or misstated his account of
what happened in the back room when discussing the crime
with Jones; Jones could have assumed a door had been kicked
JONES v. RYAN
Page: 20 of 26
in based on noises he heard when Scott Nordstrom went into
the back room; or Jones could have exaggerated what had
happened when talking about it with his friend in Lana
Irwin’s apartment; or Lana Irwin, who based her testimony on
what she overheard Jones tell a friend, might have misheard
or misunderstood that detail.
 We are not persuaded that the prosecution and police
would so jeopardize both their case and their reputations by
intentionally putting on false testimony regarding such a
minor detail. After all, Lana Irwin was able to accurately testify about many other details she overheard from Jones that
match details of the crime and David Nordstrom’s account.
For example, she testified: that Jones had two partners, brothers, one was inside and one in the truck, and Jones was mad
at the one in the truck; that Jones killed four or five people in
Tucson by shooting them in the head, and his partner killed
two; that one man was shot standing by a door, and that
another was chased by Jones’s partner to a back room and
shot; that women were killed at a bar or restaurant where
everything was red; that an older man was pistol whipped and
shot in the head while sitting in a chair with his head leaning
back in that same red room; and that Jones didn’t get enough
money. We hold that the PCR court was not unreasonable in
accepting the State’s explanation for this discrepancy, and
further hold that the incorrect testimony and argument regarding the kicked-in door was not material.3
Jones contends the above misconduct was “compounded” by the prosecution’s failure to disclose the police reports which illustrated that the
detectives’ statements were false. The reports are among 2209 pages of
disclosure stamped “FIRST DISCLOSURE July 28, 1997.” The PCR
court determined that this was “part of an orderly and seemingly reliable,
long-standing institutional process” that “creates a rebuttable presumption
that the documents were disclosed,” and found that the affidavits from
Jones’s trial attorneys that they do not remember seeing the report were
insufficient to rebut that presumption. We hold that the PCR court’s determination was reasonable.
Page: 21 of 26
JONES v. RYAN
Arthur Bell’s Body
Another corroborating detail that Prosecutor White emphasized between Irwin’s testimony and the facts of the crimes
was that Arthur Bell had been shot in the head and left in a
chair with his head leaning back. Jones contends that Bell’s
body was initially lying with his head down on the bar and
was moved sometime after police arrived, but before pictures
were taken. If this were true, then Irwin’s ability to accurately
describe the body’s position could show that the prosecution
or police showed her pictures from the crime scene.
Jones bases his argument on three police reports: the first
two describe Bell as “slouched over another bar stool,” and
“slumped over sitting at the bar,” and the third recounts the
statement of the witness who discovered the victims at the
Union Hall robbery, Nathan Alicata, that “he saw Arthur sitting on a bar stool slumped over the bar.” In a subsequent
interview with detectives, Alicata described Bell as “slumped
on the chair on the bar sort of sideways.” Jones claims this is
inconsistent with the reports of other officers who arrived on
scene later, which described Bell as “in a chair at the bar. His
head was leaning back,” and “in a bar stool up by the front
of the bar. He was leaning back in the stool with his head
leaning back also.”
 The PCR court found that there was sufficient evidence
to “support a reasonable conclusion that, when the intruders
departed [the Union Hall], Arthur Bell’s body was slouched
in a chair at the bar with his head leaning back.” This determination was not unreasonable. None of the police reports mention Bell’s body being moved, and the pictures introduced at
trial, which show Bell slumped sideways across a barstool
with his head leaning back, are not inconsistent with the
descriptions pointed to by Jones.4
We also reject Jones’s allegation that detectives lied when they said
that information about the Union Hall being red had not been released to
the media. The fact that a newspaper ran a color photo of the celebration
in the Union Hall after Scott Nordstrom’s conviction in 1997 does not
mean that police released information.
JONES v. RYAN
Page: 22 of 26
Misconstrual of Police Sketches (Claim 1-C)
A police artist made two composite sketches of the perpetrators of the Moon Smoke Shop robbery, one with a hat and
one without a hat, based on the recollections of witness Mark
Naiman. Mike Kapp, an associate of the Nordstrom brothers,
told Detective Edward Salgado in a “free talk” interview (and
later testified at Scott Nordstrom’s trial) that these sketches
resembled the Nordstrom brothers (specifically, the hatless
sketch was David Nordstrom and the one with a hat was Scott
 Jones contends that Detective Salgado and Prosecutor
White misled the jury at Jones’s trial by suggesting that the
hatless sketch resembled both Nordstrom brothers while “the
suspect with a hat was always clearly identified as Jones.”
After Salgado agreed on cross-examination that “other people
had come forward identifying other people other than Jones
from those composites,” White asked Salgado on redirect how
he would describe one of the sketches:
Slim, slim face, narrow face, long face.
Do either one of the Nordstroms have a long
They both have long faces.
Is that the similarity that people were telling you
The PCR court found that this was “a reasonable line of questioning given Jones’s connection with the Nordstroms and the
fact that the police identified the brothers as initial suspects in
the investigation.” The district court held that this testimony
was not material because the “overwhelming evidence of guilt
Page: 23 of 26
JONES v. RYAN
unrelated to the sketches renders any alleged ‘false impression’ inconsequential.” We agree, and hold that White’s questioning of Salgado did not deny Jones a fair trial or undermine
confidence in the verdict. See Hayes, 399 F.3d at 984.
False Avowal About David Nordstrom’s
Stepmother’s Phone (Claim 1-D)
As a condition of his parole, David Nordstrom had an electronic monitoring device attached to his ankle paired with a
unit hooked up to the phone at his parents’ house. If David
Nordstrom left the house when he wasn’t supposed to do so,
the electronic monitoring system would record the curfew
violation. To demonstrate that the system could not be circumvented, Prosecutor White introduced evidence of a test
performed at the Nordstroms’ home eighteen months after the
murders. To establish foundation to allow the test results to be
admitted, White avowed that Terri Nordstrom (David Nordstrom and Scott Nordstrom’s stepmother) would later testify
that the phone used in the test was the same one as the one
in use at the time of the murders. But Terri Nordstrom was
not asked about this at Jones’s trial, and at Scott Nordstrom’s
trial she had testified that the phone used for the test was not
the same as the phone that was in use the night of the Union
Jones argues that “White made this false avowal in order to
force this key document into evidence without foundation.”
The PCR court denied this claim because it found that the
expert testimony of Jones’s parole supervisor “settled any
question concerning the relevancy of the computer printout
showing the results of the experiment.” This determination
was not unreasonable, given the expert testimony at trial “that
the kind of phone used had no impact on the functioning of
the monitoring system other than to cause an occasional busy
 “[T]he touchstone of due process in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the
JONES v. RYAN
Page: 24 of 26
culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209,
219 (1982). Prosecutor White’s erroneous avowal was not
wholly insubstantial, but it did not impact the fairness of
Jones’s trial. Because the evidence would have been admissible without the avowal, we hold that the allegedly false
avowal was not material.
Delayed Disclosure of Jones’s Hat and Boots
The police obtained Jones’s hat and boots on March 18,
1998. They were submitted to the Tucson Police Department’s Crime Lab and tested negative for the presence of
blood. The state disclosed that it had Jones’s hat and boots on
April 23. Trial was originally supposed to begin on May 4,
but was continued until June 16 due to numerous last minute
disclosures by the prosecution, including this one. The hat and
boots were admitted into evidence at trial and the negative
blood test results stipulated to the jury.
Jones argues that Prosecutor White and Detectives Salgado
and Woolridge deliberately hid this exculpatory evidence on
April 20, three days before the hat and boots were disclosed,
by giving Jones’s attorneys “highly evasive and incomplete”
answers as to whether the police had Jones’s hat and boots
during a pre-trial conference.5 Jones contends that the fact that
the information was turned over to defense counsel before
When the existence of the hat and boots were disclosed on April 23,
the defense moved to preclude the evidence due to its late disclosure. In
his response to the motion to preclude, Prosecutor White explained that
the State gave these answers because it “could not ‘link’ the hat and boots
to the Defendant” on April 20. But White “reasoned that while the State
could not prove the boots belonged to Defendant, the Defendant might be
able to prove that link,” and disclosed the hat and boots because the negative blood test results may be exculpatory. The judge neither granted nor
denied the motion to preclude, and instead granted a motion to continue
trial for six weeks so defense counsel could investigate the new disclosures.
Page: 25 of 26
JONES v. RYAN
trial “does not excuse the blatant lying by the police and prosecutor to defense counsel.” The PCR court rejected this claim,
finding that the “disclosure of the hat, boots, and lab results
was not accomplished in as timely a manner as [Jones] would
have preferred,” but that there was “adequate time for
[Jones’s] counsel to prepare for trial.”
 The district court examined this claim under Brady,
rejecting it because there was no suppression: “despite the
evasiveness of the detectives . . . the evidence was disclosed
to the defense nearly two months prior to trial.” We agree
with both the PCR and district courts that this delayed disclosure did not affect the fairness of the trial. A three day delay
in disclosure, even if unwarranted and not the product of lack
of knowledge or confusion, is not tantamount to a nondisclosure where Jones’s lawyers had the information two
months before trial and only days after it was first requested.
Jones alleges that his right to counsel under the Sixth and
Fourteenth Amendments were violated because his counsel
rendered ineffective assistance by not discovering and using
the conflicted testimony on the kicked-in door at issue in
Claim 1-A, discussed in Part IV.A, supra. Jones argues that
his counsel should have reviewed Detectives Woolridge and
Godoy’s testimony at Scott Nordstrom’s trial, and that if they
had done so they would have been able to cross-examine and
impeach the detectives with their prior inconsistent statements. Jones asserts that this would have changed the verdict
by undermining the credibility of the detectives and of Lana
To demonstrate ineffective assistance of counsel, a petitioner must show that (1) his counsel’s performance was deficient and (2) such deficient performance prejudiced his
defense. Strickland, 466 U.S. at 687. Strickland’s second
prong requires the petitioner to “show that there is a reason-
JONES v. RYAN
Page: 26 of 26
able probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at
694. The court may “dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice” without addressing
whether counsel’s performance was deficient. Id. at 699.
 The PCR court dismissed this issue for the same reasons it dismissed Claim 1-A: the testimony regarding the
kicked-in door was “but one of the dozen or so correlations
with the facts of the crime that were adduced from the testimony of Lana Irwin.” We agree. As discussed above, challenging this fact would not have undermined Irwin’s
testimony regarding the many other facts that did match up,
especially because Irwin was testifying as to what Jones said
Scott Nordstrom did, some of it out of sight of Jones, with
plenty of opportunity for exaggeration, misinterpretation, or
mistake on Jones’s part, or for mishearing by Irwin. We hold
that Jones was not prejudiced by his counsel’s failure to discover and utilize the inconsistencies regarding the kicked-in
On the prosecutorial misconduct issues initially certified
for appeal, our task is to determine whether Jones’s due process rights were violated, and “the aim of due process ‘is not
punishment of society for the misdeeds of the prosecutor but
avoidance of an unfair trial to the accused.’ ” Smith, 455 U.S.
at 219 (quoting Brady, 373 U.S. at 87). On all contentions of
prosecutorial misconduct, we agree with the state courts that
there was no fundamental unfairness to Jones and no due process violation. On the related ineffective assistance of counsel
claims on which we expanded the scope of the certificate of
appealability, we conclude that the prejudice prong of Strickland is not satisfied. We hold that Jones received a fair trial
leading to his jury conviction of multiple murders beyond a
reasonable doubt and it was not objectively unreasonable for
the Arizona courts to deny habeas relief.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?