Gonzales, et al v. Schriro, et al

Filing 238

ORDER - IT IS HEREBY ORDERED that Petitioners Amended Petition for Writ of Habeas Corpus (Doc. 28 ) is DENIED. The Clerk of Court shall enter judgment accordingly. IT IS FURTHER ORDERED that the stay of execution entered by this Court on November 1 6, 1999 (Doc. 3 ), is VACATED. IT IS FURTHER ORDERED granting a certificate of appealability with respect to Claims 9, 14/15, and 27. IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329. (See document for further details). Signed by Senior Judge Stephen M McNamee on 8/11/15. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ernest Valencia Gonzales,
Petitioner,

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No. CV-99-2016-PHX-SMM
ORDER

v.
Charles L. Ryan, et al.,

DEATH PENALTY CASE

Respondents.

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Before the Court is Petitioner’s First Amended Habeas Petition. (Doc. 28.)
Petitioner filed a memorandum addressing the merits of his claims and requesting
evidentiary development. (Doc. 214.) Respondents filed a response to the memorandum
and Petitioner filed a reply. (Docs. 217, 220.) For the reasons set forth herein, Petitioner
is entitled to neither habeas relief nor evidentiary development.

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BACKGROUND

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In 1991, Petitioner was convicted by an Arizona jury of felony murder, armed

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robbery, aggravated assault, first-degree burglary, and theft. The trial court sentenced

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Petitioner to death on the murder charge and to various prison terms for the other crimes.
The Arizona Supreme Court summarized the facts of the crimes as follows:

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Shortly before 7:00 p.m. on February 20, 1990, Roger Daughtry
returned home from work and noticed that his porch light was on. He went
inside and saw that someone had disassembled his stereo and moved his
speakers. Suddenly, a man appeared from behind the speakers, looked at
Daughtry, and ran out of the house. Daughtry later identified that man as
Ernest Gonzales.

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Minutes later, Jeri Sheer, Daughtry’s neighbor, took out her trash
with her dog, which ran toward a man holding what looked like a tire iron.
Sheer looked at the man, grabbed her dog, and went back into her house.
When she looked out the window, she noticed the man heading west, the
direction of Darrel and Deborah Wagner’s townhouse. Sheer later identified
the man as Gonzales.
About 7:10 p.m., Darrel Wagner, his wife Deborah, and Deborah’s
seven-year-old son arrived home from dinner. As they walked into the
small courtyard of their townhouse, they noticed that their front door was
ajar. Darrel went to investigate while Deborah and her son waited at the
gate. As Darrel pushed open the front door, both he and Deborah saw
Gonzales standing on the stairway holding their VCR under his arm.
Deborah immediately told her son to run to the neighbor’s house and call
911. When she turned back toward her home, she saw Gonzales shove her
husband out the front door. Darrel lost his balance and fell backward.
Gonzales began to stab him repeatedly (seven times in all).
Deborah pleaded with Gonzales to leave. When he did not, Deborah
jumped on Gonzales’s back and wrapped her arms around him to keep him
from stabbing Darrel. Gonzales then swung at Deborah and stabbed her
twice. He also apparently wounded himself as he was flailing at Deborah.
When Deborah fell off his back, Gonzales left with her purse. A few
minutes later, Darrel helped his wife up and both went inside to call 911.
Darrel collapsed on the floor during the call and died later that night.
Deborah spent five days in intensive care.
Gonzales went from the Wagner residence to his girlfriend [Gloria
Alvarez’s] house. She helped clean his wound. Her daughters, Catherine
and Martha Trinidad, were there and testified at trial about comments
Gonzales made the night of the murder, his clothing, and the “bag” he had
with him containing a woman’s driver’s license and pictures of a boy with
red hair—the color of Deborah’s son’s hair.
State v. Gonzales, 181 Ariz. 502, 506, 892 P.2d 838, 842 (1995).

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Petitioner was represented at trial by appointed counsel. Following a mistrial,
Petitioner requested, and the Court granted, his motion to represent himself. Petitioner
subsequently withdrew his pro per request and original trial counsel was reappointed to
represent Petitioner during the second trial that led to his conviction.
Thereafter, Petitioner’s counsel filed a motion for a new trial. (ROA 131.)1 In
response, Petitioner filed a new motion to proceed pro per and a motion to strike

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counsel’s motion for a new trial, both of which were granted. (Id. 134, 135; ROA-ME

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68.) Petitioner also filed a supplemental motion for a new trial, which included numerous

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claims of ineffective assistance of trial counsel. (ROA 138.) The trial court held a three-

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day hearing, at which Petitioner’s ineffective assistance allegations were considered and

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denied.

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Petitioner filed a petition for post-conviction relief (PCR) and a supplemental
petition. (ROA-PCR 441, 499, 500.) The trial court denied the petitions and denied a
motion for rehearing. (ROA-PCR 518, Ex’s. D, E.) Petitioner filed a petition for review,
which the Arizona Supreme Court denied in October 1999. (See ROA-PCR 517).
On November 15, 1999, Petitioner commenced these proceedings by filing a pro

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forma petition for a writ of habeas corpus. (Doc. 1.) The Court appointed the Federal

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Public Defender’s Office as counsel. (Doc. 8.) On December 27, 1999, the Court issued a

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case management order setting a deadline for the filing of an amended petition. (Doc.
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“ROA” refers to the four-volume record on appeal from trial and sentencing,
including minute entries (ME) prepared for Petitioner’s direct appeal to the Arizona
Supreme Court (Case No. CR-92-0154-AP). “ROA-PCR” refers to the 11-volume record
on appeal from post-conviction proceedings prepared for Petitioner’s petition for review
to the Arizona Supreme Court (Case No. CR-98-0422-PC).
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17.) The order required the amended petition to “include every known constitutional error
or deprivation entitling Petitioner to habeas relief” and to provide a “Statement of
Exhaustion” noting where each claim for relief was raised in state court. (Id. at 2.)
On July 17, 2000, Petitioner filed a 237-page amended petition raising 60 claims
for relief. (Doc. 28.) He failed, however, to file the required Statement of Exhaustion.
The Court directed Petitioner to comply with its case management order. (Doc. 34.) On

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September 14, 2000, Petitioner notified the Court that he had filed a petition for writ of

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mandamus in the Ninth Circuit Court of Appeals. (Doc. 35.) The Court denied

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Petitioner’s request for a stay of the proceedings and for additional time to file the
Statement of Exhaustion. (Doc. 40.)
On October 6, 2000, Petitioner filed the Statement of Exhaustion. (Doc. 42.) He
simultaneously filed a notice of withdrawal of claims, voluntarily withdrawing 13
unexhausted habeas claims, including claims alleging ineffective assistance of counsel.
(Doc. 43.) The notice indicated that Petitioner had initiated a PCR proceeding in state
court to exhaust the withdrawn claims, but did not request a stay of the federal
proceedings. (Id. at 2.) On October 16, 2000, the Ninth Circuit denied the mandamus
petition as moot.
In February 2001, Petitioner requested that his PCR counsel be removed and that
he be permitted to represent himself in his successive PCR proceeding. (Doc. 102-1 at 3–

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5.) The state court ordered a mental health examination to determine whether Petitioner

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was competent to waive counsel. (Id. at 6–7.) A court-appointed expert determined that

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Petitioner was paranoid and delusional. (Id. at 10.) In August 2001, the state court found
Petitioner incompetent to waive counsel and represent himself. (Id. at 26.)
In December 2001, on the day Petitioner’s successive PCR petition was due,
counsel filed a motion to hold the case in abeyance pending restoration of Petitioner’s
competency. (Doc. 102-1 at 30–36.) The motion asserted that Petitioner’s inability to
rationally communicate with counsel precluded counsel from developing a claim of
incompetency at the time of trial and sentencing. (Id.) The state court denied the motion.
(Id. at 45.)
In February 2002, state counsel filed a successive PCR petition asserting four

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claims, including claims that Petitioner had a right to be competent to assist counsel in a

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second PCR proceeding, that he was entitled to an evidentiary hearing to determine his

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current competency, and that he was incompetent at the time of trial and sentencing.
(Doc. 108-1 at 3–24.) PCR counsel did not raise any of the claims withdrawn from the
amended federal habeas petition. (Id.) The state court denied the petition, and the Arizona
Supreme Court denied a petition for review. (Id. at 40; Doc. 108-2 at 6.)
Following Petitioner’s withdrawal of the 13 unexhausted claims in October 2000,

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the parties briefed the procedural status of Petitioner’s remaining habeas claims. Briefing

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concluded in February 2001. (Doc. 59.) The procedural status of Petitioner’s claims

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remained under advisement until September 2002, when the Court stayed Petitioner’s

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sentencing-related claims pending exhaustion in state court of a claim based on the

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United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002). (Doc.

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75.) Petitioner initiated another state PCR proceeding. The state court consolidated it with
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the already-pending PCR petition. The Arizona Supreme Court denied review in October
2003. (Doc. 81.) In July 2004, following the United States Supreme Court’s decision in
Schriro v. Summerlin, 542 U.S. 348 (2004), this Court lifted the stay.
Over the next 18 months, while the matter was under advisement, Petitioner did
not seek amendment to reincorporate the 13 withdrawn claims or to add the claims
litigated in the second PCR petition.

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On January 12, 2006, the Court entered its order regarding the procedural status of

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Petitioner’s habeas claims. (Doc. 97.) The Court dismissed some of the claims on

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procedural grounds or as plainly meritless, and established a deadline for Petitioner to
submit briefing on the merits of the remaining claims. (Id.)
On the eve of the deadline for filing his merits brief, Petitioner’s counsel instead
moved to stay this action pursuant to Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th
Cir. 2003), abrogated by Ryan v. Gonzales, 133 S. Ct. 696 (2013), contending that
Petitioner was incapable of rationally communicating with or assisting habeas counsel.
(Doc. 102.)
After two years of litigation regarding Petitioner’s competency, the Court entered

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an order on April 23, 2008, denying Petitioner’s motions for a competency hearing and a

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stay of these proceedings.2 (Doc. 187.) The Court determined that Petitioner’s remaining

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claims were record-based or involved purely legal issues and therefore would not benefit

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During this period the Court granted Petitioner’s motion that he be transferred to
the Arizona State Hospital for an extended mental health assessment. (See Doc. 187 at 3–
4.) Petitioner was prescribed an anti-psychotic medication which improved capacity for
rational thought. (Id. at 4.) However, Petitioner voluntarily discontinued treatment,
complaining of back pain. (Id.)
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from Petitioner’s ability to communicate rationally with counsel. (Id.) Petitioner filed an
emergency petition for writ of mandamus with the Ninth Circuit, which issued a stay on
June 19, 2008. (Doc. 199.) The Ninth Circuit subsequently granted mandamus. In re
Gonzales, 623 F.3d 1242 (9th Cir. 2010). On January 8, 2013, the United States Supreme
Court reversed. Gonzales, 133 S. Ct. at 696. The case was returned to this Court on June
6, 2013. (Doc. 206.)

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The Court ordered Petitioner to file his merits brief no later than September 20,

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2013. (Doc. 208.) Instead, Petitioner filed a motion for recusal/reassignment, which the

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Court denied. (Docs. 210, 211.) Petitioner then filed an emergency motion with the Ninth

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Circuit panel to stay the proceedings, as well as a petition for a writ of mandamus and a

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motion for reassignment of the case. On September 30, 2013, the Ninth Circuit panel

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denied the mandamus petition and denied the stay. (Doc. 216.)
Petitioner filed his merits memorandum on September 20, 2013. (Doc. 212; see
Docs. 213, 214, 215.) Briefing was completed on November 22, 2013. (Doc. 220.)
In February 2014, Petitioner filed a motion to amend, seeking to add eight claims
of ineffective assistance of counsel, including ineffective assistance at sentencing. (Doc.

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228.) The Court denied the motion (Doc. 234) and now addresses the remainder of

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Petitioner’s claims.

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APPLICABLE LAW
Federal habeas claims are analyzed under the framework of the Antiterrorism and

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Effective Death Penalty Act (“AEDPA”).3 Pursuant to 28 U.S.C. § 2254(d), a petitioner
is not entitled to habeas relief on any claim adjudicated on the merits in state court unless
the state court’s adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
The Supreme Court has emphasized that “an unreasonable application of federal

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law is different from an incorrect application of federal law.” Williams v. Taylor, 529

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U.S. 362, 410 (2000). In Harrington v. Richter, 562 U.S. 86 (2011), the Court clarified

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that under § 2254(d), “[a] state court’s determination that a claim lacks merit precludes

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federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of

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the state court’s decision.” Id. at 101. Accordingly, to obtain habeas relief from this

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Court, Petitioner “must show that the state court’s ruling on the claim being presented in

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federal court was so lacking in justification that there was an error well understood and

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comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at

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103; see Frost v. Pryor, 749 F.3d 1212, 1225–26 (10th Cir. 2014) (“[I]f all fairminded

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jurists would agree the state court decision was incorrect, then it was unreasonable . . . If,

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however, some fairminded jurists could possibly agree with the state court decision, then

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it was not unreasonable and the writ should be denied.”).

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Petitioner’s challenge to the constitutionality of the AEDPA is meritless. See
Crater v. Galaza, 491 F.3d 1119, 1125–26 (9th Cir. 2007) (holding that AEDPA violates
neither the Suspension Clause nor separation of powers).
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With respect to § 2254(d)(2), a state court decision “based on a factual
determination will not be overturned on factual grounds unless objectively unreasonable
in light of the evidence presented in the state-court proceeding.” Miller–El v. Cockrell,
537 U.S. 322, 340 (2003). A “state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion in the
first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Even if “[r]easonable minds

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reviewing the record might disagree” about the finding in question, “on habeas review

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that does not suffice to supersede the trial court’s . . . determination.” Rice v. Collins, 546

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U.S. 333, 341–42 (2006); see Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014)

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(explaining that on habeas review a court “cannot find that the state court made an

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unreasonable determination of the facts . . . simply because we would reverse in similar

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circumstances if this case came before us on direct appeal”).
To find that a factual determination is unreasonable under § 2254(d)(2), the court
must be “convinced that an appellate panel, applying the normal standards of appellate
review, could not reasonably conclude that the finding is supported by the record.”
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). “This is a daunting standard—one
that will be satisfied in relatively few cases.” Id.
Significantly, “review under § 2254(d)(1) is limited to the record that was before
the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S. Ct.

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1388, 1398 (2011) (holding that “the record under review is limited to the record in

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existence at that same time, i.e., the record before the state court”); see Murray v.

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Schriro, 745 F.3d 984, 998 (9th Cir. 2014) (“Along with the significant deference
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AEDPA requires us to afford state courts’ decisions, AEDPA also restricts the scope of
the evidence that we can rely on in the normal course of discharging our responsibilities
under § 2254(d)(1).”). The Ninth Circuit has observed that “Pinholster and the statutory
text make clear that this evidentiary limitation is applicable to § 2254(d)(2) claims as
well.” Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (2013) (citing § 2254(d)(2) and
Pinholster, 131 S. Ct. at 1400 n.7). Therefore, as the court explained in Gulbrandson:
for claims that were adjudicated on the merits in state court, petitioners can
rely only on the record before the state court in order to satisfy the
requirements of § 2254(d). This effectively precludes federal evidentiary
hearings for such claims because the evidence adduced during habeas
proceedings in federal court could not be considered in evaluating whether
the claim meets the requirements of § 2254(d).
Id. at 993–94.
ANALYSIS

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Twenty-five claims remain from the first amended petition. Petitioner seeks
evidentiary development on each. However, because the claims were denied on the merits

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in state court, this Court’s review is limited to the state court record and Petitioner is

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entitled to evidentiary development only if a claim satisfies § 2254(d).4 Pinholster, 131 S.

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Ct. at 1398, 1400–01; see, e.g., Henry v. Ryan, 720 F.3d 1073, 1093 n.15 (9th Cir. 2013)

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(explaining that Pinholster bars evidentiary hearing unless petitioner satisfies § 2254(d)).

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Claims 45, 47, and 48, alleging ineffective assistance of counsel, were not
considered on the merits in state court. However, the existing record is sufficient to
resolve the claims and evidentiary development is unnecessary. See Schriro v. Landrigan,
550 U.S. 465, 474 (2007) (explaining that an evidentiary hearing is unnecessary when the
state-court record “precludes habeas relief” under § 2254(d) limitations).

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As discussed next, relief on each of the claims is precluded by § 2254(d), so Petitioner’s
requests for evidentiary development must be denied.5
Claim 4
Petitioner alleges that the photographic lineup shown to witnesses Roger Daughtry

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and Jeri Scheer was impermissibly suggestive and unreliable, and therefore their
testimony identifying Petitioner should not have been admitted at trial.6 (Doc. 214 at 42–
48.)
Before trial, Petitioner moved to suppress the identifications. The court conducted
a “Dessureault hearing”7 and concluded that there was “no evidence at all of undue

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suggestion.” (ME 132.) The identifications were admitted at trial. On direct appeal, the

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Arizona Supreme Court agreed that the identifications were admissible. Gonzales, 181

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Ariz. at 509–10, 892 P.2d at 845–46.
A pretrial identification violates due process where (1) the police-arranged
identification procedure is impermissibly suggestive, and (2) the suggestive procedure

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Throughout his memorandum on the merits, Petitioner asserts that his
incompetence prevents him from further developing his claims. (See, e.g., Doc. 212 at 1,
40, 48.) For the reasons discussed in previous orders (Docs. 187, 235), and because
Petitioner is not entitled to evidentiary development under Pinholster, his competence is
not at issue in the resolution of his claims for habeas relief. While it is unnecessary at this
point in the proceedings to address questions concerning Petitioner’s competency, the
Court recognizes that the issue may arise if and when the State obtains a warrant of
execution.
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Daughtry, when shown the lineup three days after witnessing the burglary, chose
Petitioner’s photo as the “most likely” or “most like the person.” (RT 1/17/90 at 9–10.)
Scheer picked out Petitioner’s photo when she was shown the lineup a week after the
incident. (Id. at 25–28.) She was 80 percent certain the photo showed the person she had
seen outside her home. (Id. at 28.) Deborah Wagner was unable to identify her attacker in
the photo lineup. (See RT 1/22/91 at 24–27; RT 5/28/91 at 108–111.)
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State v. Dessureault, 104 Ariz. 380, 384, 453 P.2d 951 (1969), directs trial courts
to hold an evidentiary hearing when a proposed in-court identification is challenged.
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gives rise to a very substantial likelihood of misidentification. Neil v. Biggers, 409 U.S.
188, 197 (1972); Manson v. Braithwaite, 432 U.S. 98, 114 (1977). “[D]ue process
concerns arise only when law enforcement officers use an identification procedure that is
both suggestive and unnecessary.” Perry v. New Hampshire, 132 S. Ct. 716, 718 (2012)
(citing Braithwaite, 432 U.S. at 107). Factors to be considered in assessing the reliability
of the identification include the opportunity of the witness to view the suspect at the time

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of the crime, the witness’s degree of attention, the accuracy of the witness’s description,

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the level of certainty, and the lapse of time between the crime and the identification.

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Biggers, 409 U.S. at 199–200.

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Petitioner contends that the photographic lineup shown to Daughtry and Scheer

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was improperly suggestive because Petitioner’s photo, one of five in the lineup, has a

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lighter background than the other photos and because the other men pictured “have
normal facial expressions while Mr. Gonzales has his eyes squinted and effectuates a
hostile glare.” (Doc. 214 at 42–43.) The Arizona Supreme Court addressed this argument
and concluded that the line-up was not unduly suggestive:
To establish a due process violation, Gonzales must first establish
that the circumstances surrounding the pretrial identification “were so
impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification,” Simmons v. United States, 390 U.S. 377, 384
(1968), and that the “state bore sufficient responsibility for the suggestive
pretrial identification.” See State v. Williams, 166 Ariz. 132, 137, 800 P.2d
1240, 1245 (1987). Gonzales argues that the line-up was suggestive
because (1) the background in his photo was lighter than the others, (2) he
had a “hostile glare” that gave him a more “criminal look,” (3) only three of
the men in the line-up had “bushy” mustaches while the others had only
thin mustaches, and (4) both Sheer and Daughtry knew that a suspect had
been arrested before they viewed the photos.

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After reviewing the photographic line-up shown to Sheer and
Daughtry, we conclude that the trial court did not err in holding that it was
not impermissibly suggestive. While upon close examination, the lighting
or flash may be brighter in Gonzales’s picture, the difference is almost
imperceptible. All the persons shown stood against a solid white
background. The facial expression Gonzales chose while being
photographed was not a function of police conduct. Nor will different facial
expressions or hair thickness render a line-up impermissibly suggestive.
There is no requirement that the accused be surrounded by nearly identical
persons.
Gonzales, 181 Ariz. at 509–10, 892 P.2d at 845–46 (additional citations omitted).
The Arizona Supreme Court’s decision was not based on an unreasonable

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application of clearly established federal law or an unreasonable determination of the

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facts. “When a witness identifies the defendant in a police-organized photo lineup . . . ,

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the identification should be suppressed only where ‘the photographic identification

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procedure was so [unnecessarily] suggestive as to give rise to a very substantial

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likelihood of irreparable misidentification.’” Perry, 132 S. Ct. at 724 (quoting Simmons v.

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United States, 390 U.S. 377, 384–85 (1968)). That is not the case here. The photo lineup

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shows five young Hispanic males with dark hair and mustaches. See United States v.

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Beck, 418 F.3d 1008, 1012 (9th Cir. 2005) (finding no impermissible suggestion where

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the photospread showed six pictures of clean-shaven “Caucasian males in the same age

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range with similar skin, eye, and hair coloring”); United States v. Carabajal, 956 F.2d

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924, 929 (9th Cir. 1992) (finding no impermissible suggestion where the photospread

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showed six pictures of “Hispanic males in the same age range, with similar skin, eye, and

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hair coloring” as well as similar hair length and facial hair).
The Ninth Circuit has explained that “insubstantial differences between the

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defendant’s photograph and the others do not in themselves create an impermissible
suggestion.” United States v. Burdeau, 168 F.3d 352, 357 (9th Cir. 1999). In Burdeau, the
court held that a photo array was not suggestive even though the defendant’s picture was
placed in the center of the array, was “darker than the rest,” and was the only one
showing a person with closed eyes. Id.; see United States v. Johnson, 820 F.2d 1065,
1073 (9th Cir. 1987) (finding photographic array was not impermissibly suggestive when

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defendant’s photograph was hazier than others); United States v. Sambrano, 505 F.2d

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284, 286 (9th Cir. 1974) (finding photographic array in which defendant’s photograph

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was darker and clearer was not impermissibly suggestive).

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Neither Petitioner’s facial expression nor the fact that his photo was slightly

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lighter than the others is a substantial difference that renders the lineup impermissibly

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suggestive. The Arizona Supreme Court’s denial of this claim was not contrary to or an
unreasonable application of clearly established federal law and was not based on an
unreasonable determination of the facts. Claim 4 is denied.
Claim 5
Petitioner alleges that his confrontation and due process rights were violated by
the trial court’s failure to appoint various experts. (Doc. 214 at 48–54.)
Before the second trial, Petitioner moved for the appointment of experts in
serology, fingerprinting, and identification. (ROA 171.) The trial court denied the motion,

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explaining, “I don’t see the change in the trial warranting the appointment of new experts

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and changing the dynamic at all. It’s just another trial. That jury hung up, and, as I said

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when I mistried it before, we’ll just try it again. And in view of that, there’s nothing
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new.” (RT 3/25/91 at 6.)
On appeal, Petitioner argued that that the trial court’s refusal to appoint the experts
denied him due process under Ake v. Oklahoma, 470 U.S. 68 (1985). The Arizona
Supreme Court held that Petitioner had failed to make a threshold showing of “reasonable
necessity” as required under Ake and the state statute governing the appointment of
experts. Gonzales, 181 Ariz. at 511, 892 P.2d at 847. The court found that Petitioner “did

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not explain how a fingerprint expert would be helpful, let alone necessary, to his defense.

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The state did not offer fingerprint evidence against him.” Id. The court also noted that

11
12

Petitioner “made only general references to the credibility of Deborah’s identification

13

testimony to support his request for a serologist and an identification expert.” Id. Finally,

14

the court explained that “it does not appear that the identification expert testimony would

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have been admissible under [state law].” Id. at n.4.
The Arizona Supreme Court did not unreasonably apply clearly established federal
law. In Ake, the United States Supreme Court held that a defendant has a constitutional
right to the appointment of a psychiatrist when his sanity is a “significant factor at trial.”
470 U.S. at 83. However, the Supreme Court has declined to consider whether the

22

holding in Ake extends beyond psychiatrists to other expert witnesses and investigators.

23

See Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985) (“We therefore have no need to

24
25

determine as a matter of federal constitutional law what if any showing would have

26

entitled a defendant to [a criminal investigator, a fingerprint expert, or a ballistics

27

expert].”). The Ninth Circuit has limited the Ake holding to psychiatrists and specifically

28

held that Ake does not extend to eyewitness identification experts. Jackson v. Ylst, 921
- 15 -

1
2
3
4
5
6
7
8
9
10
11
12

F.2d 882, 886 (9th Cir. 1990). Therefore, Petitioner’s claim fails because the Supreme
Court has not clearly established a constitutional right to the appointment of forensic
experts. See Carey v. Musladin, 549 U.S. 70, 77 (2006) (“Given the lack of holdings from
[the Supreme] Court regarding [the petitioner’s claim], it cannot be said that the state
court unreasonably applied clearly established Federal law.”) (internal quotation marks
and brackets omitted).8
Claim 5 is denied.
Claim 7
Petitioner alleges that his right to testify and his right to due process were violated

13

when the trial court ruled that the prosecution could use his statements to the police for

14

impeachment purposes if he chose to testify. (Doc. 214 at 57.) Petitioner contends that

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20
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the statements, made while he was being treated in the hospital for an injury he received
during his arrest, were involuntary and therefore inadmissible for all purposes.
Background
The trial court held a voluntariness hearing before Petitioner’s first trial. Phoenix
Detectives Michael Chambers and Billy Butler testified. Petitioner did not.

22

Petitioner was arrested in the early morning hours of February 23, 1990. He was

23

fleeing on foot from a traffic stop when an officer struck him in the head with a

24
25
26
27
28

8

Even if Ake extended to the type of experts sought by Petitioner, the Arizona
Supreme Court reasonably determined that Petitioner failed to show there was a necessity
for their appointment in his case. The State did not use fingerprint evidence against
Petitioner, Petitioner offered no specific support for his request for a serology expert (see
ROA 171), and under Arizona law the general rule is that “the trier of facts needs no
assistance from expert testimony on the question of reliability of identification.” State v.
Chapple, 135 Ariz. 281, 296, 660 P.2d 1208, 1223 (1983).
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3
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flashlight, knocking him to the ground. (RT 6/3/91 at 91.) Petitioner sustained an injury
above his right eye. (Id. at 92–93.) Before Petitioner was transported to the county
medical center at 6:47 a.m., Detective Butler advised him of his Miranda rights.9 (RT
1/16/91 at 61–62.) Petitioner indicated that he understood his rights. (Id. at 62.) When
asked if he would like to give his side of the story, Petitioner responded that he had
nothing to say. (Id.)

9

Later that morning, when Detective Chambers arrived at the homicide office, his

10

supervisor asked him to relieve one of the two uniformed officers who were guarding

11
12

Petitioner at the medical center. (Id. at 66–67.) When Chambers arrived at the hospital

13

about 9:00 a.m., Petitioner was on a hospital bed while a physician was cleaning soil out

14

of a deep laceration on Petitioner’s forehead. (Id. at 68–69, 76.) Petitioner complained

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24
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about pain, but also said that pain was good because it kept his head clear. (Id. at 78.)
Detective Chambers again asked Petitioner whether he understood his rights, but
he did not re-administer the Miranda warnings. (Id. at 70.) Petitioner indicated that he
understood his rights and stated that he did not want to talk about his arrest until he had
spoken with an attorney. (Id.) Detective Chambers offered to place a call, but Petitioner
did not provide the name of an attorney. (Id.)
Chambers continued speaking with Petitioner. Noting that Petitioner had a record
as a burglar, not a violent criminal, Detective Chambers suggested a scenario in which

26

Petitioner did not intend to harm anyone but only attacked Mr. Wagner because Wagner

27

confronted him during the burglary and attempted to prevent his escape. (Id. at 71, 75.)

28
9

Miranda v. Arizona, 384 U.S. 436 (1966).
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3
4
5
6
7
8

Petitioner acknowledged that Detective Chambers’ description of the incident was
correct. (Id. at 71–72.) He also indicated that he had been struck in the head during the
confrontation and that he did not intend to harm the woman. (Id. at 72, 75.)
The trial court found that the statements were taken in violation of Petitioner’s
rights under Miranda and precluded their use in the State’s case-in-chief. However, the
court ruled that the statements would be admissible for impeachment purposes if

9

Petitioner were to testify. (RT 1/16/91 at 82–83.) Citing Harris v. New York, 401 U.S.

10

222 (1971), the court explained that “[a] statement plainly taken without giving Miranda

11
12

rights nevertheless becomes admissible to impeach if it is fundamentally competent. And

13

here, the issue of the competence of the defendant, based on his injury and so forth,

14

would go to the weight, not the admissibility. So to that extent suppression is denied.”

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23
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25
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27
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(Id. at 82.)
On appeal, Petitioner argued that under Mincey v. Arizona, 437 U.S. 385, 398
(1978), the statements should have been excluded for all purposes because his medical
condition at the time rendered the statements involuntary. He also contended that the trial
court’s ruling prevented him from taking the stand in his own defense.
The Arizona Supreme Court denied the claim, holding that Petitioner’s statements
were voluntary:
Our inquiry is whether the confession was the product of “a rational
intellect and a free will.” Mincey, 437 U.S. at 398. Gonzales was in the
hospital having his wound cleaned. He was not strapped down, sedated, or
incoherent. In fact, he stated that the pain from his wound “kept his head
clear.” Gonzales understood and responded to the questions and even asked
questions about statements he believed his girlfriend had made. Gonzales’s
will was not overborne. This case is not like Mincey where the defendant
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1

was in intensive care, confined to bed, in extreme pain, heavily sedated,
confused, incoherent, and eventually unconscious. Gonzales’s statements
were not coerced. The trial court did not err in ruling them admissible to
impeach.

2
3
4

Gonzales, 181 Ariz. at 512–13, 892 P.2d at 848–49 (additional citations omitted).10 This

5
6
7

decision was neither contrary to nor an unreasonable application of clearly established
federal law, nor was it based on an unreasonable determination of the facts.

8

Analysis

9

While a statement taken in violation of defendant’s Miranda rights may not be

10
11

used in the prosecution’s case in chief, it is admissible for impeachment so long as “the

12

trustworthiness of the evidence satisfies legal standards.” Harris, 401 U.S. at 224. Any

13
14
15
16
17

use of a defendant’s involuntary statement is a denial of due process. Mincey, 437 U.S. at
398.
To determine whether a statement was voluntary, a court considers whether, under
“the totality of the circumstances, the government obtained the statement by physical or

18
19

psychological coercion or by improper inducement so that the suspect’s will was

20

overborne.” United States v. Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988). A statement

21

is involuntary if it is “extracted by any sort of threats or violence, [or] obtained by any

22
23

direct or implied promises, however slight, [or] by the exertion of any improper

24

influence.” Hutto v. Ross, 429 U.S. 28, 30 (1976) (quoting Bram v. United States, 168

25

U.S. 532, 542–43 (1897)).

26
27
28

10

The Arizona Supreme Court also found that Petitioner had waived the claim by
failing to testify, Gonzales, 181 Ariz. at 512, 892 P.2d at 848, but this Court held that the
procedural ruling was not adequate to bar habeas review. (Doc. 97 at 13.)
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5
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7
8
9
10
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There is no evidence that Petitioner’s statements were extracted by threats,
violence, promises, or the exertion of improper influence. He was not subjected to
violence, promised leniency in exchange for making a statement, or lied to.
As the Arizona Supreme Court observed, the circumstances in which he made his
statements bear little resemblance to those in Mincey, where “[t]he statements at issue
were . . . the result of virtually continuous questioning of a seriously and painfully
wounded man on the edge of consciousness.” Mincey, 437 U.S. at 400.
Mincey had been seriously injured in a shootout with police, sustaining a wound in
his hip, which resulted in damage to the sciatic nerve and partial paralysis of his right

13

leg.11 437 U.S. at 396. When he arrived at the hospital, he was “depressed almost to the

14

point of coma.” Id. at 398. Tubes were inserted into his throat and through his nose into

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his stomach, and a catheter was inserted into his bladder. Id. at 396. He was unable to
speak, and had to write out his answers to the detective’s questions. Id.
While Mincey was in the intensive care unit, in a “debilitated and helpless
condition,” a detective arrived and, after administering the Miranda advisory, proceeded
to interrogate Mincey over the course of four hours. Id. The United States Supreme Court
described the interrogation:
As soon as [Detective] Hust’s questions turned to the details of the
afternoon’s events, Mincey wrote: “This is all I can say without a lawyer.”
Hust nonetheless continued to question him, and a nurse who was present
suggested it would be best if Mincey answered. Mincey gave unresponsive
or uninformative answers to several more questions, and then said again
that he did not want to talk without a lawyer. Hust ignored that request and
another made immediately thereafter. Indeed, throughout the interrogation

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Mincey remained hospitalized for almost a month. 437 U.S. at 398 n.14.
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3
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Mincey vainly asked Hust to desist. Moreover, he complained several times
that he was confused or unable to think clearly, or that he could answer
more accurately the next day. But despite Mincey’s entreaties to be let
alone, Hust ceased the interrogation only during intervals when Mincey lost
consciousness or received medical treatment, and after each such
interruption returned relentlessly to his task.

5
6

Id. at 399–401 (footnotes omitted). The Court concluded that “[i]t is hard to imagine a

7

situation less conducive to the exercise of ‘a rational intellect and a free will’ than

8

Mincey’s.” Id. at 398 (quoting Blackburn v. Alabama, 361 U.S. 199, 208 (1960)).

9
10

Petitioner, unlike Mincey, was not in a debilitated condition, physically or

11

mentally, when he made his statements to Detective Chambers. While Petitioner was in

12

pain and being treated for a laceration on his forehead, he was, by his own account, able

13
14
15
16
17
18

to think clearly. He was not confused, passing into and out of consciousness, or offering
incoherent statements to his interrogator.
Detective Chambers’ conduct was not coercive or overbearing. Although
Petitioner was in pain as his laceration was being treated, “it was not so severe as to

19

render him unable to make a voluntary statement or unduly susceptible to manipulation

20

by his interrogator[].” Campaneria v. Reid, 891 F.2d 1014, 1020 (2d Cir. 1989)

21

(upholding district court’s voluntariness finding where defendant was in intensive care

22
23

with knife wound but was “alert and awake despite his pain”); see United States v. Khalil,

24

214 F.3d 111, 115, 121–22 (2d Cir. 2000) (finding statement voluntary where defendant

25

was in hospital, suffering from a gunshot wound and awaiting surgery). Under the totality

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27
28

of the circumstances, Petitioner’s inculpatory statements were not the product of
unconstitutional coercion, and his will was not overborne. Claim 7 is denied.

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2
3
4
5
6
7
8

Claim 9
Petitioner alleges that his Sixth and Fourteenth Amendment rights were violated
because the trial judge was openly hostile toward Petitioner and refused to recuse
himself. (Doc. 214 at 64.)
Background
Petitioner’s first trial ended in a hung jury. Before his second trial, Petitioner,

9

acting pro per, moved to disqualify the trial judge, Judge Joseph Howe, arguing that he

10

was biased and prejudiced against Petitioner. (ROA 104, 105.) Petitioner cited adverse

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12

rulings issued by Judge Howe, particularly the denial of expert assistance on the issue of

13

eyewitness identification, and on-the-record comments made by the judge to Petitioner.

14

(ROA 105.)

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27
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Judge Howe initially denied the motions (RT 3/25/91 at 7, 9) but subsequently
vacated his ruling (ME 3/25/91). The matter was then assigned to Judge Rufus Coulter,
who held a hearing at which Petitioner explained his position:
[Judge Howe] is prejudicing me in a lot of motions that I bring forward. He
just keeps denying all my motions. And I just feel there is going to be a big
effect in this next trial because he was present, and he made a lot of
decisions in my last trial. And there was a lot of prejudicial remarks that he
has stated to me in court on previous hearings on my motions, and he just—
he just keeps determining to just take me to trial in front of him. He has
stated this to me, that he will not let me go to no other judge, just in front of
him. And I’ve made many attempts to get a change of judge, but he just
calls me a fool. He don’t want to listen to me, whatever I have to present to
him. He says I’m just a stubborn brat. And I’m just being prejudiced. There
ain’t no way I’m going to get a fair trial with Judge Howe anymore.
(RT 5/15/91 at 3.)
The prosecutor acknowledged that “there is some type of attitude problem
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7
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between Judge Howe and the defendant. I’m not sure why it started, how it started or
what effect it has had on this trial. Every time we appear in court, they snap and snarl at
each other. And I have no position, nor do I have any indication as to whether or not that
behavior will deprive the defendant of a fair trial.” (Id. at 4.) Judge Coulter denied the
motion, explaining, “I snap and snarl at a lot of attorneys, but I simply don’t—it doesn’t
mean it’s prejudice. Based on what has been presented, it will be ordered denying the
disqualification of Judge Howe.” (Id.)
After his conviction in the second trial but prior to sentencing, Petitioner filed
another pro se motion seeking to disqualify Judge Howe. (ROA 150.) Petitioner again

13

cited adverse rulings and the judge’s disparaging courtroom comments. In addition to

14

these criticisms, Petitioner noted that he had filed a complaint against Judge Howe with

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the Judicial Conduct Commission. (ROA 150.) Judge Ronald Reinstein denied the
motion, finding that the previous allegations of bias had been ruled on and that the filing
of a complaint against a judge is not a basis for removal. (ME 10/1/91.)
On direct appeal, Petitioner’s appellate counsel raised the issue of judicial bias,
alleging that “[t]hroughout the proceedings in this matter, the trial judge’s impartiality

22

[sic] and bias were apparent” and citing a number of contentious exchanges between

23

Judge Howe and Petitioner. (Opening Br. at 56.) The Arizona Supreme Court rejected

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26
27
28

Petitioner’s claim, finding that the reported exchanges between Petitioner and Judge
Howe did not indicate bias:
Gonzales points to several exchanges that he claims demonstrate the
judge’s animosity toward him, and argues that he was denied a fair trial and
sentencing. But Gonzales was a difficult litigant, and while the judge
- 23 -

1

understandably became impatient with him, particularly while he was
acting pro per, none of the exchanges would support Gonzales’s claim of
bias. Nor did any of the exchanges take place in front of the jury. Other
than pointing to the motions the judge denied and the sentence he imposed,
Gonzales has not shown how he was prejudiced.

2
3
4
5
6
7
8

Gonzales, 181 Ariz. at 511–12, 892 P.2d at 847–48. Citing Liteky v. United States, 510
U.S. 540, 555 (1994), the court concluded “that Judge Coulter properly denied
Gonzales’s motion for disqualification of Judge Howe.” Id. at 512, 892 P.2d at 848.
Analysis

9
10
11
12

The Due Process Clause guarantees a criminal defendant the right to a fair and
impartial judge. See In re Murchison, 349 U.S. 133, 136 (1955); Rhoades v. Henry, 598

13

F.3d 511, 519 (9th Cir. 2010) (“Due process requires that trials be conducted free of

14

actual bias as well as the appearance of bias.”). Judicial bias reaching the level of a due

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16
17
18
19
20
21

process violation, and therefore requiring recusal, is presumed in cases “in which the
adjudicator has a pecuniary interest in the outcome and in which he has been the target of
personal abuse or criticism from the party before him.” Withrow v. Larkin, 421 U.S. 35,
47 (1975). Due process also requires recusal “if the judge acts as ‘part of the accusatory
process.’” Crater v. Galaza, 491 F.3d 1119, 1132 (9th Cir. 2007) (quoting Murchison,

22

349 U.S. at 137). “To succeed on a judicial bias claim, however, the petitioner must

23

overcome a presumption of honesty and integrity in those serving as adjudicators.’”

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25
26
27
28

Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008) (quoting Withrow, 421 U.S. at
47).
In Liteky, the Supreme Court explained that a judge’s conduct at trial may be
“characterized as bias or prejudice” only if “it is so extreme as to display clear inability to
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3
4
5
6
7

render fair judgment” or “display[s] a deep-seated favoritism or antagonism that would
make fair judgment impossible.” 510 U.S. at 551, 555. “[J]udicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties,
or their cases” do not establish bias unless “they reveal such a high degree of favoritism
or antagonism as to make fair judgment impossible.” Id. at 555. The Court elaborated:

11

Not establishing bias or partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and even anger, that are within the
bounds of what imperfect men and women, even after having been
confirmed as federal judges, sometimes display. A judge’s ordinary efforts
at courtroom administration—even a stern and short-tempered judge’s
ordinary efforts at courtroom administration—remain immune.

12

Id. at 555–56; see Larson, 515 F.3d at 1067 (“In the absence of any evidence of some

8
9
10

13
14
15
16
17

extrajudicial source of bias or partiality, neither adverse rulings nor impatient remarks are
generally sufficient to overcome the presumption of judicial integrity.”).
The Ninth Circuit has “repeatedly concluded that a ‘state court’s finding that the
trial judge was impartial . . . is a finding of historical fact that is entitled to a presumption

18
19

of correctness’ under 28 U.S.C. § 2254(d).” Sivak v. Hardison, 658 F.3d 898, 924 (9th

20

Cir. 2011) (quoting Gretzler v. Stewart, 112 F.3d 992, 1009 (9th Cir. 1997)); see also

21

Ortiz v. Stewart, 149 F.3d 923, 938 (9th Cir. 1998).

22
23

This Court, applying the “twin presumptions,” Sivak, 658 F.3d at 924, of

24

deference to the state courts’ determination that Judge Howe was not biased and the

25

presumption of judicial integrity, concludes that Petitioner’s judicial bias claim is

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28

meritless.
Petitioner’s claim of bias is based on what he characterizes as a hostile

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2
3
4
5
6
7
8

relationship between himself and Judge Howe. As evidence of bias, Petitioner cites a
handful of testy comments by Judge Howe in courtroom proceedings outside the presence
of the jury. (See, e.g., RT 8/6/90 at 5; RT 4/18/91 at 21–22; RT 5/25/91 at 7–9.)
However, the record as a whole discloses nothing more than the “rare flareup” and “show
of evanescent irritation—a modicum of quick temper that must be allowed even judges.”
Offutt v. United States, 348 U.S. 11, 17 (1954); see Larson, 515 F.3d at 1067 (“Because

9

Larson has provided no evidence of the trial court’s alleged bias outside of these rulings

10

and remarks—which themselves revealed little more than the occasional mild frustration

11
12

with Larson’s pro se lawyering skills—his claim that he was denied a fair trial also

13

fails.”); Jones v. Luebbers, 359 F.3d 1005, 1014–15 (8th Cir. 2004) (finding that trial

14

judge’s expressions of anger and annoyance towards defense counsel did not rise to the

15
16
17
18
19
20
21

level of judicial bias where there was no showing that the judge was biased against
defendant or the merits of the case, or that judge’s demonstration of anger or annoyance
infected jurors).
While Petitioner was by his own admission a “difficult litigant” (Doc. 220 at 17),
on a number of occasions Judge Howe showed patience and forbearance. For example,

22

when Petitioner represented himself during a hearing on his motion for a new trial, Judge

23

Howe offered guidance on how to proceed (RT 12/16/91 at 75–76, 140), interacted with

24
25

Petitioner in a collegial manner (id. at 163), and even complimented Petitioner on his

26

performance (RT 12/17/91 at 128). Judge Howe’s occasional flareups when dealing with

27

Petitioner did not “reveal such a high degree of favoritism or antagonism as to make fair

28

judgment impossible.” Liteky, 510 at 555; cf. Crater, 491 F.3d at 1132 (finding recusal
- 26 -

1
2
3
4
5
6
7
8

not required where judge’s comments advising defendant to accept plea deal were
“founded upon his legitimate knowledge of the proceedings and outcome in [the] case”
and offer[ed] no evidence to overcome the ‘presumption of honesty and integrity’ that we
accord to the determinations of a judge”) (quoting Withrow, 421 U.S. at 47).
Finally, Petitioner asserts that “Judge Howe’s partiality was apparent” in his legal
rulings, most of which were adverse to Petitioner. (Doc. 214 at 69.) In Liteky, however,

9

the Court emphasized that “judicial rulings alone almost never constitute [a] valid basis

10

for a bias or partiality recusal motion.” 510 U.S. at 555. Moreover, Judge Howe also

11
12
13
14
15
16
17
18
19

made key rulings that favored Petitioner, including his decision to suppress Petitioner’s
confession and the recording of Ms. Wagner’s 911 call.
In sum, Petitioners allegations of judicial bias, based solely on Judge Howe’s legal
rulings and in-court comments, are insufficient to overcome the presumption of judicial
integrity and support a due process violation. The Arizona Supreme Court’s denial of this
claim was not contrary to or based on an unreasonable application of clearly established
federal law or an unreasonable determination of the facts. Claim 9 is denied.

20
21

Claim 13

22

Petitioner alleges that his rights under the Sixth and Fourteenth Amendments were

23

violated when the trial court permitted Deborah Wagner to remain in the courtroom

24
25

during jury selection and after her testimony. (Doc. 214 at 71.)

26

At Petitioner’s second trial, Ms. Wagner was present for voir dire, seated in the

27

back of the courtroom. (See RT 5/28/91 at 8.) Subsequently, after the jury had been

28

selected, defense counsel asked the court to ask the jurors if they had been tainted by
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3
4
5
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7
8
9
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their exposure to Ms. Wagner’s presence. (Id.) The court declined, explaining that asking
such questions would “do more damage” than good and finding that there was no
evidence of misconduct and that Ms. Wagner had a right to be present under the Arizona
Constitution. (Id. at 8, 11.) The prosecutor indicated that, with respect to the remainder of
the proceedings, Ms. Wagner, who would be the State’s first witness, intended to be
present only for the opening statements and her own testimony. (Id. at 10.) Over the
prosecutor’s objection, the court barred Ms. Wagner from the courtroom during opening
statements but ruled that she could be present after her testimony. (Id. at 13.)

11

Petitioner raised this claim on direct appeal. (Opening Br. at 54.) The claim was

12
13

based upon the assumption that Ms. Wagner was present in the courtroom after her

14

testimony—an assumption that, Petitioner conceded, was supported by nothing in the

15
16
17
18

record. (Id. at n.19.) The Arizona Supreme Court rejected the claim, finding that Ms.
Wagner had a right to be present as a crime victim under the Arizona Constitution.
Gonzales, 181 Ariz. at 512, 892 P.2d at 848. The court then stated:

19

Deborah, on her own initiative, attended jury selection. She sat in the back
row of the courtroom, and neither the court nor counsel knew she was there
until several days later. Nor is there any evidence that prospective jurors
noticed Deborah or knew who she was during jury selection. Gonzales has
not shown that Deborah’s presence during jury selection was prejudicial.
There is no evidence that Deborah intended to or did remain in the
courtroom after she testified, and therefore we consider the matter no
further.

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21
22
23
24
25
26
27
28

Id.
Petitioner is not entitled to relief on Claim 13 because the Arizona Supreme
Court’s rejection of the claim was not contrary to or based on an unreasonable application
of clearly established federal law. As the Sixth Circuit has noted, citing Carey v.

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2
3
4
5
6
7
8

Musladin, 549 U.S. 70, 77 (2006), there is no clearly established federal law holding “the
mere presence of a murder victim’s family members in the courtroom can result in
inherent prejudice to the defendant’s right to a fair trial.” United States v. Lawrence, 735
F.3d 385, 441 (6th Cir. 2013).
In Carey, the Supreme Court observed that some “government-sponsored
practices” have been held inherently prejudicial, but noted that it has never held that

9

“private-actor courtroom conduct was so inherently prejudicial that it deprived a

10

defendant of a fair trial.” 549 U.S. at 76. The Court therefore vacated the Ninth Circuit’s

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13
14
15
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20
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grant of habeas relief where the trial court had allowed a murder victim’s family
members to wear buttons displaying the victim’s photograph during trial. Id. at 77.
Petitioner also contends that the Arizona Supreme Court’s denial of this claim was
based on an unreasonable determination of the facts. The Arizona Supreme Court stated
that counsel did not know Ms. Wagner was present during jury selection “until several
days later,” but both defense counsel and the prosecutor told the judge they had been
aware of Ms. Wagner’s presence during voir dire. (RT 5/29/91 at 8, 11.) Gonzales, 181
Ariz. at 512, 892 P.2d at 848. The Court finds that this erroneous observation is

22

insufficient to satisfy § 2254(d)(2) because it was not relevant to the supreme court’s

23

analysis and was not the basis of the court’s conclusion that “Gonzales has not shown

24
25
26

that Deborah’s presence during jury selection was prejudicial.” Id.
Claim 13 is denied.

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2
3
4
5
6
7
8
9
10
11
12

Claims 14/1512
Petitioner alleges that his rights under the Sixth and Fourteenth Amendments were
violated when the trial court determined that witness Martha Trinidad was unavailable
and allowed her previous testimony to be read into the record at his retrial. (Doc. 214 at
76.) He contends that the State failed to show that it had made a good faith effort to
secure Martha’s presence and that the Arizona Supreme Court’s denial of the claim on
appeal was contrary to and an unreasonable application of clearly established federal law
and based on an unreasonable determination of the facts. (Id. at 78–82.)
Facts

13

Martha Trinidad, the 14-year-old daughter of Petitioner’s girlfriend Gloria

14

Alvarez, testified and was cross-examined at Petitioner’s first trial. (RT 6/28/91 at 39–

15
16
17
18
19
20
21
22
23
24
25

78.) Before the second trial, the prosecutor personally served subpoenas on both Martha
and Ms. Alvarez on Martha’s behalf. During Petitioner’s second trial, Ms. Alvarez
testified that Martha was supposed to be living with her but had run away from home.
(RT 5/30/91 at 151.) Ms. Alvarez did not know where Martha could be found. (Id.) She
had run away twice before. (Id. at 152.) On one occasion, Ms. Alvarez’s brother was able
to locate Martha, but after being returned home, she ran away again. (Id.)
Four days after Ms. Alvarez’s testimony, the parties met with the trial court. The
prosecutor informed the court that he had spoken with Ms. Alvarez during a break and

26

she informed him that Martha had not returned home. (RT 3/3/91 at 100.) He also told the

27

court that the previous week he had requested Detective Butler to drive by the areas

28
12

Petitioner merged Claims 14 and 15 into a single claim. (Doc. 215 at 76 n.41.)
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1
2
3
4
5
6
7
8

Martha was known to frequent, but the detective was unable to locate her.13 (RT 6/3/91 at
100, 104.) Petitioner’s counsel, while acknowledging that the prosecutor had been “real
up front” about Martha’s runaway episodes, questioned whether she was “unavailable”
under the rules and objected to the admission of her previous testimony. (Id. at 101.) The
court found Martha was “unavailable” and ruled her prior testimony admissible. (Id. at
102.) It was read into the record the next day. (RT 6/4/91 at 25–64.)

9

On appeal, Petitioner alleged that the State failed to make a good-faith effort to

10

secure Martha’s presence at retrial. Gonzales, 181 Ariz. at 508, 892 P.2d at 844. The

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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Arizona Supreme Court denied the claim:
Gonzales first argues that the state failed to make a good-faith effort
to secure Martha Trinidad’s presence at trial, and thus Martha was not
“unavailable” under Rule 804(a)(5), Ariz.R.Evid. Gonzales claims that the
state knew that Martha had a history of running away and should have tried
to hold her in some manner. He argues that, at the very least, the state
should have done more than simply drive by places where Martha “hung
out.”
Most “good-faith efforts” challenges involve unserved witnesses
who cannot be located. But here, Martha and her mother were personally
served. While nothing in Rule 804 suggests that service of a subpoena is a
per se showing of good-faith efforts, we have said that “the true issue is
whether the state made a good-faith effort to locate the witness so that he or
she could be put under subpoena.” State v. Edwards, 136 Ariz. 177, 182,
665 P.2d 59, 64 (1983) (citing State v. Pereda, 111 Ariz. 344, 345, 529
P.2d 695, 696 (1974) (“If a witness cannot be served by subpoena, it then
becomes a matter within the sound discretion of the trial court to determine
whether a sufficient effort has been made to place the witness under
subpoena.”). Service of process and the efforts made to locate Martha upon
learning that she was missing satisfy the unavailability requirement of the
rule.

27
28

13

At the hearing on Petitioner’s motion for a new trial, defense counsel testified
that he had also unsuccessfully searched for Martha at one of the locations provided by
her mother. (RT 12/16/91 at 46.)
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1
2

Id. at 508–09, 892 P.2d at 844–45.

3

Analysis

4

The Confrontation Clause bars “admission of testimonial statements of a witness

5
6

who did not appear at trial unless he was unavailable to testify, and the defendant had . . .

7

a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–54

8

(2004). The unavailability requirement is not met unless the government made a good-

9
10

faith effort to obtain the witness’s presence at trial. Ohio v. Roberts, 448 U.S. 56, 74

11

(1980), abrogated on other grounds by Crawford, 541 U.S. 36; see Barber v. Page, 390

12

U.S. 719, 725 (1968). While the prosecution need not take every conceivable measure to

13
14
15

secure a witness, it must demonstrate that it took reasonable steps to do so. See Roberts,
448 U.S. at 74–77.

16
17
18
19

In Hardy v. Cross, 132 S. Ct. 490, 495 (2011) (per curiam), the Supreme Court,
citing Roberts, reiterated that “when a witness disappears before trial, it is always
possible to think of additional steps that the prosecution might have taken to secure the

20

witness’ presence, but the Sixth Amendment does not require the prosecution to exhaust

21

every avenue of inquiry, no matter how unpromising.” The Court further noted that on

22
23

habeas review:
the deferential standard of review set out in 28 U.S.C. § 2254(d) does not
permit a federal court to overturn a state court’s decision on the question of
unavailability merely because the federal court identifies additional steps
that might have been taken. Under AEDPA, if the state-court decision was
reasonable, it cannot be disturbed.

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25
26
27
28

Id.

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3
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5
6
7
8

The Arizona Supreme Court’s decision was reasonable. In Roberts, the
prosecution attempted to locate the witness by contacting her mother and family, who
reported that they did not know of her whereabouts, and by issuing a subpoena at her
parents’ home on five separate occasions over the course of four months. 448 U.S. at 74–
77. The Supreme Court, on direct review, found these good faith efforts sufficient to
show that the witness was unavailable. Id.; see Jackson v. Brown, 513 F.3d 1057, 1083

9

(9th Cir. 2008) (finding that the state made reasonable efforts where it served the witness

10

while she was in custody, checked a database of aliases, and visited the street corner

11
12

where she worked as a prostitute).

13

In this case, the prosecution actually served Martha with a subpoena, and served

14

Mrs. Alvarez on behalf of Martha. When Martha ran away from home again and her

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17
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19
20
21

mother testified that she did not know where Martha was, the prosecutor directed a
detective to search the areas she was known to frequent. Under these circumstances, the
Arizona Supreme Court’s decision upholding the trial court’s unavailability
determination was not “so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement.”

22

Richter, 562 U.S. at 103. This claim is denied.

23

Claim 17

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25

Petitioner alleges that his rights were violated when the trial court improperly

26

admitted Ms. Wagner’s in-court identification, which was unreliable and tainted by her

27

exposure to Petitioner during the first trial. (Doc. 214 at 83.)

28

Prior to trial, following the Dessureault hearing, the court determined that Ms.
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Wagner’s in-court identification of Petitioner would be admissible. The court found that
exposure to a newspaper photograph of Petitioner was insufficient to taint her in-court
identification of Petitioner. (RT 1/15/91 at 22–27.) The court explained that Ms. Wagner
“was present at the assault upon herself and had a considerable amount of time in which
to observe firsthand the assailant. There was absolutely nothing in police conduct and
nothing in the newspaper that would in any way taint her testimony.” (Id. at 27.)

9

At Petitioner’s first trial, Ms. Wagner, when asked on direct examination whether

10

the person who attacked her was in the courtroom, replied “Yes, I think he is” and

11
12

pointed to Petitioner. (RT 1/21/91 at 61.) On cross-examination, however, she suggested

13

that her identification of Petitioner had become more certain, explaining, “I didn’t get any

14

kind of feelings until I come into this courtroom yesterday and looked at the man you’re

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16
17
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19
20
21

trying to defend.” (RT 1/22/91 at 23.) On redirect examination, Ms. Wagner did not
hesitate when asked how certain she was that Petitioner was the attacker: “That man is
the man that was in our house and killed us [sic].” (Id. at 28.) The first trial ended in a
hung jury. Prior to the second trial, defense counsel moved to dismiss the charges, citing
the change in the strength of Ms. Wagner’s identification of Petitioner during the first

22

trial and his concern that she was “obviously going to identify [Petitioner] as the

23

perpetrator” at the next trial. (RT 3/25/91 at 3–4.) The court denied the motion. (Id. at 8.)

24
25
26
27
28

During her testimony at Petitioner’s retrial, Ms. Wagner identified Petitioner without
hesitation. (RT 5/28/91 at 59.)
On direct appeal, Petitioner claimed that the trial court erred by admitting Ms.
Wagner’s identification testimony because it “was tainted by her inability to identify him
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at the first trial and her identification did not have sufficient indications of reliability.”
(Opening Br. at 25.) He argued that the “suggestive position of Mr. Gonzales during the
first trial, seated next to defense counsel,” allowed her to make a positive in-court
identification during the second trial. (Id.) Petitioner also contended that the identification
was unreliable under the Biggers factors. (Id. at 26–28.) The Arizona Supreme Court held
that the claim was waived because Petitioner did not object prior to trial. Gonzales, 181

9

Ariz. at 510, 892 P.2d at 846. The court also found, in the alternative, that “merely sitting

10

at the defense table during trial where the defendant is neither shackled nor dressed in

11
12

prison garb is not unduly suggestive.” Id. Petitioner alleges that this decision was

13

contrary to and an unreasonable application of clearly established federal law, and based

14

on an unreasonable determination of the facts. (Doc. 214 at 84.)

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16
17
18
19
20
21

The Court disagrees. Petitioner does not cite, and this court has not found, a
Supreme Court case that extends the protections of Biggers and its progeny to cases
where the eyewitness first identifies a defendant at trial. See United States v. Domina,
784 F.2d 1361, 1368 (9th Cir. 1986) (“None of these cases has set any guidelines for incourt identification procedures nor indicated that in-court identification must be made in

22

a way that is not suggestive.”); see also Perry, 132 S. Ct. at 720–21 (“We have not

23

extended pretrial screening for reliability to cases in which the suggestive circumstances

24
25

were not arranged by law enforcement officers.”). As a result, the Court cannot conclude

26

that the state courts’ resolution of Petitioner’s claim was contrary to, or an unreasonable

27

application of, Supreme Court precedent. See Carey, 549 U.S. at 74, 77.

28

In addition, the mere fact that Ms. Wagner definitively identified Petitioner for the
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first time at trial does not establish a constitutional violation. In Johnson v. Sublett, 63
F.3d 926, 928 (9th Cir. 1995), the victim-witness, Jones, identified the defendant,
Johnson, at trial. Johnson challenged the in-court identification. Id. He noted that Jones
had been unable to pick Johnson’s photo from a photographic lineup. Id. He also argued
that his presence at a suppression hearing, where he was identified by Jones, was unduly
suggestive and “this pretrial exposure to the victim rendered inadmissible the victim’s incourt identification of Johnson before the jury.” Id.
On habeas review, the Ninth Circuit rejected these arguments. The court explained
that “the photo spread had no significance. If anything, Jones’ failure to pick Johnson out

13

of the photo spread was a benefit to the defense.” Id. at 929. Likewise, Ms. Wagner’s

14

inability to identify Petitioner in a photo lineup benefited the defense when she was

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cross-examined at Petitioner’s second trial. (See RT 5/28/91 at 108–111.)
With respect to Jones’s exposure to Johnson at the suppression hearing, the Ninth
Circuit explained that “[t]he bare fact that a confrontation was suggestive does not alone
establish constitutional error. The confrontation must be impermissibly or unduly
suggestive under the totality of the circumstances.” Johnson, 63 F.3d at 929 (citing

22

Biggers, 409 U.S. at 196). While in-court identifications may be subject to some

23

suggestion, “the suggestive character of courtroom logistics [is] not unnecessarily

24
25

suggestive.” Id. (citing Baker v. Hocker, 496 F.2d 615, 617 (9th Cir. 1974)). Petitioner

26

does not suggest how his presence at the first trial was impermissibly or unduly

27

suggestive.

28

Moreover, any possible prejudice from Ms. Wagner’s in-court identification of
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Petitioner during his retrial was mitigated by counsel’s cross-examination. See id. Ms.
Wagner conceded that she had “been in court several times and [had] looked at this
person sitting next to [defense counsel].” (RT 5/28/91 at 97.) Counsel also questioned
Ms. Wagner about her tentative identification of Petitioner during the first trial and her
inability to identify him from the photo lineup. (Id. at 97–99, 108–11.) This was
sufficient to test the reliability of the in-court identification. See Perry, 132 S. Ct. at 721.
Petitioner is not entitled to relief on Claim 17.
Claim 19
Petitioner alleges that the trial court violated his Fourteenth Amendment rights

13

when it failed to call a mistrial or strike the testimony of two prosecution witnesses after

14

they failed to obey an order of exclusion. (Doc. 214 at 87.)

15
16
17
18
19
20
21

At the start of Petitioner’s second trial, the court granted defense counsel’s request
under Rule 9.3 of the Arizona Rules of Criminal of Procedure to exclude Ms. Wagner
from the courtroom until after her testimony. (RT 5/28/91 at 12.) The court also stated
that its ruling on the sequestration of witnesses remained in place from the first trial. (Id.
at 12–13.)

22

Ms. Wagner was the prosecution’s first witness. Roger Daughtry testified directly

23

after her. At the end of his cross examination, he admitted that he had spoken with Ms.

24
25

Wagner outside the courtroom the day before. (RT 5/29/91 at 43.) On redirect

26

examination, Daughtry testified that the “general subject matter” of their conversation

27

was that “basically we were positive in our minds it’s the right man and we have no

28

doubt about it.” (Id. at 44.) Petitioner raised this claim on direct appeal, arguing that the
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witnesses violated the court’s order and their encounter bolstered Ms. Wagner’s
confidence in her identification of Petitioner. (Opening Brief at 37–38.)
The Arizona Supreme Court found the issue waived and held there was no
fundamental error:
Gonzales was notified well in advance of the second trial and [sic] this
conversation that Deborah would identify Gonzales without hesitation.
Gonzales made no objection at trial. The court did not commit fundamental
error by failing to declare a mistrial sua sponte.
Gonzales, 181 Ariz. at 508, 892 P.2d at 844.

11

Petitioner contends that the court’s ruling was an unreasonable application of

12

clearly established federal law because the court “failed to identify the controlling

13
14

constitutional authority” and “fundamentally failed to recognize the impact of the legal

15

principles made relevant by the facts of this case.” (Doc. 214 at 91.) The Court disagrees.

16

First, the United States Supreme Court has explained that to withstand analysis

17

under 2254(d)(1), a state court decision “does not require citation of our cases—indeed, it

18
19

does not even require awareness of our cases, so long as neither the reasoning nor the

20

result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002)

21

(per curiam).

22
23
24

More significantly, there is no clearly established law holding that the failure to
exclude or sequester witnesses violates due process.14 In Larson v. Palmateer, 515 F.3d

25
26
27
28

14

As clearly established federal law governing this claim, Petitioner cites Geders
v. United States, 425 U.S. 80 (1976), and Perry v. Leeke, 488 U.S. 272 (1989). Geders
and Perry address the Sixth Amendment right to counsel in the specific context of
defendants who were prohibited by a judge from conferring with their attorney during a
recess from their testimony. The cases discuss the general principle that judges have the
authority to sequester witnesses and order them not to discuss their testimony in order to
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at 1065, the Ninth Circuit observed that “[n]either this court nor the Supreme Court has
ever held that the failure to exclude witnesses can violate due process.” Id. at 1065. The
trial court has the discretion to exclude the testimony of a witness who disobeyed an
exclusion order. See Holder v. United States, 150 U.S. 91, 92 (1893). However, “[s]ince
the purpose of the order is to gain assurance of credibility and its violation is a legitimate
subject of comment in this respect, it seems proper that unless the violation has somehow

9

so discredited the witness as to render his testimony incredible as a matter of law he

10

should not be disqualified from testifying.” Taylor v. United States, 388 F.2d 786, 788

11
12

(9th Cir. 1967).

13

For purposes of habeas review, the question is whether the contact between

14

Daughtry and Ms. Wagner “rendered the trial so fundamentally unfair as to violate due

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16
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20
21

process.” Larson, 515 F.3d at 1064 (citing Windham v. Merkle, 163 F.3d 1092, 1103 (9th
Cir. 1998)). It did not. Ms. Wagner did not “tailor” her testimony to fit Daughtry’s. Her
testimony preceded his. They each repeated their description of Petitioner’s appearance,
including his clothing, from the first trial. Daughtry again testified that the man
burglarizing his home wore a plaid shirt or jacket, beige with big red squares, with some

22

gray or green mixed in, jeans, white tennis shoes, and a baseball cap. (RT 5/59/91 at 16;

23

see RT 1/17/91 at 45, 55, 73.) Ms. Wagner again testified that her assailant wore “all dark

24
25
26

clothing” with light colored tennis shoes and a hat without a brim, like a “stocking cap.”
(RT 5/28/91 at 69–70; see RT 1/21/91 at 60, RT 1/22/91 at 4, 11–13.)

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28

“to lessen the danger that their testimony will be influenced by hearing what other
witnesses have to say, and to increase the likelihood that they will confine themselves to
truthful statements based on their own recollections.” Perry, 488 U.S. at 281–82.
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While Petitioner asserts that the conversation between Daughtry and Ms. Wagner
bolstered the confidence with which Ms. Wagner identified Petitioner during the second
trial, the record shows that she had become positive in her identification of Petitioner by
the time she was cross-examined in the first trial. When defense counsel asked about her
failure to pick Petitioner from the photographic lineup, Ms. Wagner stated “I didn’t get
any kind of feeling until I came into this courtroom yesterday and looked at the man
you’re trying to defend.” (RT 1/22/91 at 23.)
In U. S. ex rel. Clark v. Fike, 538 F.2d 750 (7th Cir. 1976), the Seventh Circuit on
habeas review considered the petitioner’s claim that he was deprived of a fair trial when

13

prosecutors held a pretrial meeting with their major witnesses in violation of the trial

14

court’s sequestration order. At the meeting, the witnesses “discussed their general

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17
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21

impressions of the petitioner,” including the fact that he was younger than the age
reported by one of the witnesses. Id. at 757. “However, discrepancies were not ironed
out, nor did the witnesses have a general discussion of their prospective testimony among
themselves.” Id. at 757. The petitioner’s trial counsel used the meeting to impeach the
witnesses, but made no objection to the meeting during trial and did not raise the issue on

22

appeal. Id. The Seventh Circuit held that the petitioner was not entitled to habeas relief,

23

explaining:

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25
26
27
28

That the witnesses in this case did meet together, and did discuss some
aspects of their testimony was a proper subject for impeachment on crossexamination and for comment during closing argument. However, the
violation here is not so extreme as to render the witnesses’ testimony
incredible as a matter of law, nor is it so extreme as to deny the petitioner
fundamental fairness in his trial.

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Id. at 758.
Here, the meeting between Daughtry and Ms. Wagner did not render Petitioner’s
trial fundamentally unfair. The discrepancies in their testimony concerning Petitioner’s

5

appearance remained, and any increase in the certainty with which Ms. Wagner identified

6

Petitioner at the second trial was not attributable to her discussion with Daughtry.

7
8
9
10
11

The Arizona Supreme Court’s denial of this claim was neither contrary to nor an
unreasonable application of Supreme Court law. Accordingly, Claim 19 is denied.
Claim 20
Petitioner alleges the trial court denied his right to counsel by discussing a jury

12
13

note without summoning counsel. (Doc. 214 at 92.)

14

During an afternoon break on the second day of Petitioner’s retrial, one of the

15

jurors submitted a note to the bailiff. (ME 5/29/91.) The note, which was unsigned and

16
17

marked 3:06 p.m., asked if any hair samples were found in the cap in the Wagners’

18

courtyard and whether any fingerprints were found on the lighter at Daughtry’s home.

19

(ROA 110.) The judge showed the note to counsel. (RT 5/29/91 at 119.) At 3:28 p.m., the

20
21

court went back on the record to discuss the note with counsel and Petitioner, outside the

22

presence of the jury. (RT 5/29/91 at 118; ME 5/29/91.) Defense counsel expressed

23

concern that the letter indicated the jurors were already discussing the case. (Id. at 118–

24

19.) The judge told the parties that the note “came from one juror. I talked to them about

25
26
27
28

it.” (Id. at 119.) Counsel again expressed concern that the jurors were disobeying the
court’s admonition. (Id.) The judge responded, “I’ll find out.” (Id.)
After the jurors returned to the courtroom, the judge addressed them as follows:
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Welcome back, jurors. One of you handed me a written question. May I
inquire whether that was just from one juror [sic] talked to each other
before I got a no [sic] from question writer. It’s okay if you write down a
question and give it to me. What I did in this case was show it to counsel.
Remember, you haven’t heard the whole case.
(Id. at 119–20.) The judge then cautioned the jurors to be patient and to keep an open
mind while the evidence came in. (Id. at 120.)
On direct appeal, the Arizona Supreme Court found the issue waived and held
there was no fundamental error:
Gonzales argues that he was denied his right to counsel when the court
discussed a juror note with the jury outside the presence of counsel. It
appears from the record that the judge simply inquired about the source of
the note and did not discuss its contents. Thereafter, he discussed the note
with the lawyers, and all agreed that the judge should simply admonish the
jury not to form any opinions until all the evidence was in and instruct them
on the proper procedure for juror notes. Gonzales made no objection at
trial. There was no error, let alone fundamental error.
Gonzales, 181 Ariz. at 508, 892 P.2d at 844.
Petitioner contends that the court’s statement that the trial judge “simply inquired

18
19

about the source of the note and did not discuss its contents” is an unreasonable

20

determination of the facts under 28 U.S.C. § 2254(d)(2). (Doc. 214 at 94.) He also asserts

21

that the court’s conclusion that there was no error was contrary to and an unreasonable

22
23
24
25
26
27
28

application of clearly-established federal law “regarding the right to have counsel present
at all critical stages of the proceedings.” (Id.)
Neither of these arguments is convincing. First, the record is ambiguous with
respect to the substance of the judge’s discussion with the jurors. Textual ambiguity does
not render the Arizona Supreme Court’s factual determination objectively unreasonable.

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See Rice v. Collins, 546 U.S. at 341–42 (explaining that the fact that “[r]easonable minds
reviewing the record might disagree” about the finding in question is not sufficient on
habeas review to supersede the state court’s determination). Contrary to Petitioner’s
argument, it is not implausible that the judge spoke with the jurors to determine who
wrote the unsigned note without discussing its contents and subsequently addressed the
jurors to “find out” if they had discussed the note among themselves.

9

The Arizona Supreme Court’s finding of “no error” was not contrary to or an

10

unreasonable application of clearly established federal law. Petitioner’s reliance on

11
12

Rushen v. Spain, 464 U.S. 114 (1983) is misplaced. In Rushen, the Supreme Court

13

vacated the granting of a writ of habeas corpus by lower federal courts, and

14

“emphatically disagree[ed]” with the lower courts’ view that unrecorded ex parte

15
16
17
18
19
20
21

communications between a trial judge and juror can never be harmless error. Id. at 117.
The Court noted that few trials occur “in which one or more jurors do not have occasion
to speak to the trial judge about something, whether it relates to a matter of personal
comfort or to some aspect of the trial.” Id. at 118.
Accordingly, ex parte contacts are subject to the rule of harmless error. Id. at 120.

22

In order to grant relief, the error must have “had a substantial and injurious effect or

23

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623

24
25

(1993); see Smith v. Curry, 580 F.3d 1071, 1085 (9th Cir. 2009).

26

In Rushen, the Court instructed that “[w]hen an ex parte communication relates to

27

some aspect of the trial, the trial judge generally should disclose the communication to

28

counsel for all parties.” Id. at 119. That is what happened here. The judge disclosed the
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communication immediately after it occurred. Defense counsel did not object to the ex
parte communication. He was concerned not with the subject matter of the
communication but with the possibility that the jurors had improperly begun discussing
the case. The court questioned the jurors and determined that they had not done so.
On this record, even assuming the trial court erred in having the ex parte
communication, such error was harmless given the absence of any evidence that the
substance of the communication had an effect on the jury’s impartiality. Rushen, 464
U.S. at 120. Claim 20 is denied.
Claim 26
Petitioner alleges that the trial court committed fundamental error by not properly
defining reasonable doubt in the jury instructions. (Doc. 214 at 95.)
At the conclusion of the trial, the court provided the following instructions:
The defendant has pled not guilty. The defendant’s plea of not guilty
means that the State must prove every part of the charge beyond a
reasonable doubt.
The law does not require a defendant to prove his innocence. He is
presumed by law to be innocent. This means the State must prove all of its
case against the defendant.
The State must prove the defendant guilty beyond a reasonable
doubt.
The State must prove all of its case against the defendant with its
own evidence.
(RT 6/6/91 at 44.)
According to Petitioner, because the court failed to define the phrase “reasonable
doubt,” “the jury was unable to accurately apply the state’s burden to the facts presented
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in this case.” (Doc. 214 at 96.) Petitioner raised the claim on direct appeal. The Arizona
Supreme Court’s rejection of the claim, Gonzales, 181 Ariz. at 508, 892 P.2d at 844, was
neither contrary to nor an unreasonable application of clearly established federal law.
“The beyond a reasonable doubt standard is a requirement of due process, but the
Constitution neither prohibits trial courts from defining reasonable doubt nor requires
them to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5 (1994). Claim 26

9

is denied.

10

Claim 27

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12
13
14
15
16
17
18
19
20
21
22
23
24
25

Petitioner alleges that he was denied his right to counsel during the proceedings on
his motion for a new trial. (Doc. 214 at 98.)
On direct appeal, Petitioner argued that he did not knowingly and intelligently
waive his right to counsel, and, even if he did, he withdrew the waiver and was thereafter
denied appointed counsel at the start of the hearing on his motion. The Arizona Supreme
Court denied the claim. Gonzales, 181 Ariz. at 510, 892 P.2d at 846. Petitioner contends
that the decision was based on an unreasonable determination of the facts and was
contrary to and an unreasonable application of clearly established federal law. The Court
disagrees.
Background
Petitioner was represented at trial by Morton Rivkind. Following the first trial,

26

Petitioner waived counsel and Rivkind moved to withdraw. (ROA 94, 96; RT 4/18/91.)

27

The court found Petitioner competent to represent himself, granted the motion to

28

withdraw, and appointed Rivkind as advisory counsel. (RT 4/18/91 at 8; ME 4/18/91.)
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3
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5
6
7
8

Petitioner subsequently withdrew his request to proceed pro per, and Rivkind was
reappointed prior to the second trial. (See ROA 106.)
Following Petitioner’s conviction, Rivkind filed a motion for new trial. (ROA
131.) Petitioner then filed a motion to proceed pro per, a motion for a new trial, and a
motion alleging ineffective assistance of counsel. (ROA 134, 135, 138.) Rivkind filed a
motion to withdraw as counsel. (ROA 139.) At a status conference on August 6, 1991,

9

the court addressed Petitioner to be sure he understood the proceedings and to determine

10

if he was competent to represent himself. (RT 8/6/91 at 3–11.) The court found that

11
12

Petitioner understood the risks and difficulties of proceeding pro per and again

13

determined that he was competent to represent himself. (Id. at 11–13.) The court

14

appointed Gene Stratford as advisory counsel. (ME 8/6/91.) Stratford was subsequently

15
16
17
18
19
20
21

replaced by Jeffrey Ross.
The hearing on Petitioner’s motion for a new trial was held on December 9, 1991.
At the outset of the hearing the court considered Ross’s motion to withdraw. (ME
12/9/91.) Citing attorney-client privilege, Ross indicated that he was unable to disclose
the basis of his need to withdraw. (RT 12/9/91 at 3–4.) Petitioner stated that Ross had

22

told him he was too busy with other cases to competently assist Petitioner. (Id. at 4–5.)

23

To support this contention, Petitioner explained that he had secretly recorded his

24
25

conversation with Ross. (Id. at 6.) After the trial court listened to the tape, Ross indicated

26

that his motion to withdraw was unrelated to his time commitments. (Id. at 10.) The court

27

again explained the difference to Petitioner between an advisory attorney and one that

28

represented the defendant. (Id. at 11–12.) The court then admonished Petitioner, noting
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1
2
3
4
5
6

that Ross was “just trying to give you honest advice, and here you are secretly recording
him, which is a way to destroy relationship between you and a lawyer.” (Id. at 15.) The
court continued:
You had the public defender, and for reasons they didn’t express, they
moved to withdraw.

7

You had Mr. Rivkind, you fired him twice.

8

Mr. Stratford was on the case for a while, and then he withdrew.

9
10
11
12
13
14
15
16
17
18
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20
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Now Mr. Ross moves to withdraw.
The common element is you don’t get along with any lawyer, it appears, on
the record that I have.
(Id. at 15.)
The trial court granted Ross’s motion to withdraw. (Id. at 16.) The court told
Petitioner to proceed with his motion for a new trial. (Id. at 20.) Petitioner repeated that
he needed “counsel.” (Id. at 20–21.)
The hearing continued a week later. On the third day of the hearing, Petitioner
requested “advisory” counsel, which the court again denied. (RT 12/17/91 at 2, 4–5, 6.)
Following the hearing, the court denied Petitioner’s motion for new trial. (Id. at 121.)

22

Analysis

23

In denying this claim on direct appeal, the Arizona Supreme Court found that

24
25
26
27
28

Petitioner did not withdraw his waiver of the right to counsel:
The record is clear that the judge made the appropriate inquiries and
admonitions and properly found Gonzales’s waiver to be knowing and
intelligent.
Even if his waiver of counsel were knowing and intelligent,
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7
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9
10
11
12
13
14
15
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Gonzales claims that he withdrew his waiver. He relies primarily on Rule
6.1(e), Ariz.R.Crim.P., which states that a defendant may withdraw his
waiver of the right to counsel at any time. But Gonzales asked for advisory
counsel, which is discretionary under Rule 6.1(c), Ariz.R.Crim.P.FN3 He did
not ask to have counsel appointed. He thus did not withdraw his waiver of
counsel. The court did not abuse its discretion by failing to continue the
hearing and by refusing to appoint new advisory counsel. The right to
represent oneself is a constitutional right. Faretta v. California, 422 U.S.
806, 819–20, 95 S. Ct. 2525, 2533, 45 L.Ed.2d 562 (1975). A court may not
interfere with that choice without an unequivocal revocation of the
defendant’s waiver of counsel. State v. Rickman, 148 Ariz. 499, 503, 715
P.2d 752, 756 (1986). “Once a defendant has waived his right to counsel,
that waiver continues until he ‘clearly’ indicates a change of mind.” Id.
After reviewing the record, we find that Gonzales never withdrew his
waiver of counsel.
FN3. The record clearly indicates that Gonzales was seeking advisory
counsel only. (R.T. of Dec. 9, 1991, at 17–22; R.T. of Dec. 17, 1991, at 2,
4).
Gonzales, 181 Ariz. at 510, 892 P.2d at 846.
Petitioner contends that the Arizona Supreme Court’s denial of the claim was

17

based on its unreasonable determination that Petitioner did not withdraw his waiver but

18

only requested advisory counsel.

19
20

At the December 9 hearing, after Ross had withdrawn as advisory counsel,

21

Petitioner insisted that he needed counsel in order to proceed with the hearing on his

22

motion for a new trial. In context, it is clear that Petitioner was referring to advisory

23
24
25
26
27
28

counsel. As Respondents note, he never stated that he wished to give up his pro per
status, as evidenced in his statements to the court that “I need counsel to advise me” and
“that’s why I need advisory counsel.” (RT 12/9/91 at 18, 21.) Later, on the third day of
the hearing, the court addressed a motion for reconsideration filed by Petitioner. When
asked, “What is your motion?” Petitioner replied, “For counsel just to like advise me,
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3
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5
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7
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because I’m not understanding all these statutes that they’re talking about . . .” (RT
12/17/91 at 2; see id. at 5.) The court explained that it had twice granted Petitioner’s
motion to proceed pro per, each time appointing advisory counsel to assist Petitioner. (Id.
at 5–6.) Petitioner asked, “So that was your own doing, putting in advisory counsel?” The
court responded, “It sure was. You didn’t ask for it,” to which Petitioner replied, “That’s
what I’m asking for.” (Id. at 6.)

9

Based on this record, the Arizona Supreme Court’s factual determination that

10

Petitioner did not withdraw his waiver is not objectively unreasonable. See Rice v.

11
12

Collins, 546 U.S. at 341–42. Relief is precluded under § 2254(d)(2).

13

Petitioner also contends that the Arizona Supreme Court’s denial of the claim was

14

contrary to and an unreasonable application of clearly established federal law. Because

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16
17
18
19
20
21

Petitioner did not withdraw his waiver of counsel, and instead only requested the
appointment of advisory counsel, the Arizona Supreme Court’s ruling was not contrary to
or an unreasonable application of clearly established federal law. The trial court’s refusal
to appoint new advisory counsel did not violate Petitioner’s constitutional rights, because
“a defendant who waives his right to counsel does not have a right to advisory counsel.”

22

United States v. Moreland, 622 F.3d 1147, 1155 (9th Cir. 2010); see United States v.

23

Mendez-Sanchez, 563 F.3d 935, 947 (9th Cir. 2009) (noting that “under our established

24
25

precedent there is no right to the assistance of standby counsel”); see also McKaskle v.

26

Wiggins, 465 U.S. 168, 183 (1984) (“Faretta does not require a trial judge to permit

27

‘hybrid’ representation.”).

28

Even if Petitioner had withdrawn his waiver of counsel, § 2254(d)(1) would
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7
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preclude relief. There is no clearly established federal law requiring the appointment of
counsel after a defendant has validly waived counsel.
In Marshall v. Rodgers, 133 S. Ct. 1446 (2013) (per curiam), the defendant waived
his right to counsel on three occasions. After he was convicted, he requested the
appointment of counsel to file a motion for a new trial. Id. at 1448. The trial court,
exercising its discretion under California law, denied the motion. Id. The state appellate

9

court affirmed. Id. On habeas review the Ninth Circuit Court of Appeals reversed the

10

district court’s denial of habeas relief, holding that the “Sixth Amendment right to

11
12

counsel was violated when the trial court denied his timely request for representation for

13

a new trial motion.” Rodgers v. Marshall, 678 F.3d 1149, 1163 (9th Cir. 2012). In

14

reversing the Ninth Circuit, the Court “assumed, without so holding,” that “after a

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defendant’s valid waiver of his right to trial counsel under Faretta, a post-trial, preappeal
motion for a new trial is a critical stage of the prosecution.” Marshall, 133 S. Ct. at 1449.
The Court noted, however, that it has not announced a “specific legal rule” regarding
“postwaiver requests of appointment of counsel.” Id. at 1450. Therefore, the conclusion
of the California state courts that there was no Sixth Amendment violation was neither

22

contrary to nor an unreasonable application of clearly established federal law. Id. at 1451.

23

The Arizona Supreme Court’s denial of this claim was not “so lacking in

24
25

justification that there was an error well understood and comprehended in existing law

26

beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

27

Accordingly, Petitioner is not entitled to relief on Claim 27.

28

Claims 29 and 30
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The trial court sentenced Petitioner to death based on two aggravating factors: that

3

Petitioner knowingly created a grave risk of death to another person in addition to the

4
5
6

victim of the offense, under A.R.S. § 13–703(F)(3), and that the murder was committed
for pecuniary gain, under § 13–703(F)(5).15 The Arizona Supreme Court affirmed.

7

Gonzales, 181 Ariz. at 513–14, 892 P.2d at 849–50. Petitioner challenges the state courts’

8

application of these factors. (Doc. 214 at 106–15.)

9
10

Whether a state court correctly applied an aggravating factor is a question of state

11

law, and federal habeas review is limited to determining whether the state court’s finding

12

was so arbitrary or capricious as to constitute an independent due process or Eighth

13
14

Amendment violation. Lewis v. Jeffers, 497 U.S. 764, 780 (1990). A state court’s finding

15

of an aggravating factor is arbitrary or capricious only if it is a finding no reasonable

16

sentencer could have made. Id. at 783. The question is “whether, after viewing the

17

evidence in the light most favorable to the prosecution, any rational trier of fact” could

18
19

have found the factor beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

20

(1979). A habeas court faced with a record of historical facts which supports conflicting

21

inferences must presume that the trier of fact resolved any such conflicts in favor of the

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23
24
25
26
27
28

prosecution. Id. at 326.
Applying these principles, the Court concludes that Petitioner is not entitled to
relief on Claims 29 and 30.
Claim 29
15

Arizona has since renumbered this statute. The current corresponding sections
are 13–751(F)(3) and (5).
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Petitioner alleges that the state courts applied Arizona law in an arbitrary and
capricious way by finding that Petitioner knowingly created a grave risk of harm to Ms.
Wagner. (Doc. 214 at 106.) Petitioner also contends that the courts’ factual findings were
unreasonable and violated the principle that aggravating factors must sufficiently narrow
the class of defendants eligible for the death penalty. (Id.)

7

The grave risk of death aggravating factor provides that, in determining whether to

8
9

impose a death sentence, a trier of fact shall consider whether “[i]n the commission of the

10

offense the defendant knowingly created a grave risk of death to another person or

11
12
13

persons in addition to the person murdered during the commission of the offense.” A.R.S.
§ 13-703(F)(3).

14
15
16
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18
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20
21

The trial court found that the factor had been proved. The court determined that
“Deborah Wagner was not an intended victim of the murder of Darrel Wagner, but was,
to the Defendant’s personal knowledge, within the zone of danger during the time the
Defendant was stabbing Darrel Wagner, and quite aside from that time in which
Defendant was deliberately and independently stabbing Deborah Wagner.” (RT 4/27/92
at 59.)

22

On direct appeal, the Arizona Supreme agreed that Petitioner “knowingly placed

23

Deborah in grave risk of death even before turning his weapon on her.” Gonzales, 181

24
25

Ariz. at 514, 892 P.2d at 850. The court explained that its “inquiry is whether, during the

26

course of the killing, the defendant knowingly engaged in conduct that created a real and

27

substantial likelihood that a specific third person might suffer fatal injuries.” Id.

28

(quotation omitted). The court then reasoned:
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Deborah was confined in a small (10′ x 10′) courtyard with Gonzales as he
repeatedly stabbed her husband. Moreover, Deborah was not just a
bystander. She attempted to rescue her husband by jumping on Gonzales’s
back as he was stabbing Darrel. Whether she could have instead retreated is
irrelevant. One who murders knowing others are present can expect that
someone may attempt to interfere, particularly when that person is the
victim’s spouse. Gonzales’s actions created a “zone of danger” for Deborah
in which there was a realistic possibility that she may have suffered fatal
injuries. Indeed, she almost died. This grave risk occurred, as the statute
requires, during the commission of the offense against Darrel.
We reject Gonzales’s argument that § 13–703(F)(3) does not apply
because Deborah was an “intended victim” of the offense. For Deborah to
have been an intended victim, as contemplated by our cases, Gonzales must
have acted with the intent to kill her. Moreover, the intent to kill must have
been formed before Deborah was placed in grave risk of death. Gonzales
argues that Deborah became an intended victim the moment she jumped on
his back. But Deborah was placed in grave risk before she jumped on his
back. Thus, even if Gonzales stabbed Deborah with the intent to kill her,
the “intended victim” argument fails because that intent was not formed
before Deborah was placed in grave risk. Additionally, there was no
evidence that Gonzales intended to kill Deborah, and the state did not
charge him with her attempted murder. Gonzales’s only intended murder
victim was Darrel. When Deborah jumped on Gonzales’s back, his intent
was to get her off. He did this by using his body and his weapon, seriously
injuring her in the process. Once he threw her off his back, he fled the
scene. Gonzales’s reliance on the “intended victim” cases is thus misplaced.
We find that § 13–703(F)(3) is satisfied.
Id. (citations omitted).
Petitioner contends that the Arizona Supreme Court unreasonably found that Ms.
Wagner was not an intended victim. According to Petitioner, “it is impossible for a court

24

to find that Gonzales attacked Mr. Wagner with a knife with the intent of killing him

25

while simultaneously finding that Gonzales did not intend to kill Ms. Wagner when he

26
27
28

attacked her with the same knife moments later.” (Doc. 214 at 109.) The Court disagrees.
In arguing that the Arizona courts “failed to apply a consistent and coherent

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7
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definition of intent” (Doc. 217 at 56), Petitioner conflates the legal element of intent
required to prove the underlying offense in a felony murder charge with the assessment
necessary to determine whether Ms. Wagner, like her husband, was an intended murder
victim. There is nothing unreasonable about the Arizona Supreme Court drawing a
distinction between Petitioner’s intent in attacking Mr. Wagner and his intent in attacking
Ms. Wagner. Furthermore, a reasonable sentencer could have found, for the reasons set

9

forth by the Arizona Supreme Court, that Ms. Wagner was in the zone of danger created

10

by Petitioner’s attack on Mr. Wagner, and that if Petitioner ever intended to kill her, it

11
12

was only after she jumped on his back in order to stop the ongoing attack on her husband.

13

Petitioner’s intent in attacking Ms. Wagner was to free himself. When he accomplished

14

that by knocking her from his back, he fled the scene.

15
16
17
18
19
20
21

Petitioner argues that the (F)(3) factor fails to narrow the class of death-eligible
defendants. As Petitioner acknowledges, the Arizona Supreme Court has held that the
factor is not overbroad or arbitrary. See, e.g., State v. Roque, 213 Ariz. 193, 218, 141
P.3d 368, 393 (2006) (“The (F)(3) factor still requires a defendant to have put a third
party at grave risk of death in the commission of a murder, and, by distinguishing that act

22

from murders in which no third parties are endangered, the (F)(3) factor adequately

23

narrows the class of defendants eligible for the death penalty.”). Petitioner argues,

24
25

however, that in his case the Arizona Supreme Court construed the factor “in an arbitrary,

26

vague and overbroad way when it concluded that ‘[o]ne who murders knowing others are

27

present can expect that someone may attempt to interfere, particularly when that person is

28

the victim’s spouse.’” (Doc. 214 at 112.)
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Again, Petitioner mischaracterizes the court’s ruling. The court did not, as
Petitioner asserts, find that “committing a murder in front of another person immediately
qualifies that person as having placed another in a grave risk of harm.” (Id.) Instead, in
finding that Petitioner created a “zone of danger,” the court took into account a variety of
factors, including the small space in which the attacks occurred and the fact that Ms.
Wagner was not simply a bystander but the victim’s wife and therefore especially likely
to intervene. Gonzales, 181 Ariz. at 514, 892 P.2d at 850. The court’s ruling did not
impermissibly expand the category of death-eligible defendants.
In sum, a “rational factfinder” could have determined, as the trial court and the

13

Arizona Supreme Court found, that the intended victim of the murder was Mr. Wagner,

14

and that Petitioner, as he attacked Mr. Wagner and stabbed him to death, knowingly

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22
23
24
25
26
27
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placed Ms. Wagner at a grave risk of death. Petitioner is not entitled to habeas relief on
Claim 29.
Claim 30
Petitioner alleges that the state courts improperly found that the pecuniary gain
aggravating factor had been proven. (Doc. 214 at 113.) The Arizona Supreme Court
rejected this claim on direct appeal:
Gonzales argues that the evidence does not support a finding that he
committed the murder in expectation of pecuniary gain. He claims that the
robbery ended when he was confronted by Darrel Wagner and that the
subsequent murder was “unexpected and accidental.” We do not agree.
To prove the A.R.S. § 13–703(F)(5) aggravating factor, the state
must show that a motivation for the murder was the expectation of
pecuniary gain. We have held that when the defendant kills to facilitate his
escape and to permit him to take and keep stolen items, he furthers his
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pecuniary gain motive. The Wagners interrupted Gonzales during the
burglary of their home. Gonzales was there to steal from them.
The trial court found beyond a reasonable doubt that Gonzales
intended to kill Darrel. His murder was not “accidental.” This is plainly
evident from the number of stab wounds. Gonzales’s primary motivation
was to steal the Wagner’s property. Darrel’s murder was directly connected
to that goal. We agree with the trial court that the murder of Darrel Wagner
was committed for pecuniary gain.
Gonzales, 181 Ariz. at 513, 892 P.2d at 849 (citations omitted).

9

Petitioner argues that there was insufficient evidence to support a finding that the

10

murder was committed in the expectation of pecuniary gain. He also contends that the

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20
21

pecuniary gain aggravating factor is unconstitutionally vague and overbroad. Neither
argument is persuasive.
First, viewing the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found that Petitioner, who was burglarizing the Wagners’
home, committed the murder to facilitate his escape and keep the stolen items. See, e.g.,
Williams v. Stewart, 441 F.3d 1030, 1060 (9th Cir. 2006); Correll v. Stewart, 137 F.3d
1404, 1420 (9th Cir. 1998); State v. Runningeagle, 176 Ariz. 59, 65, 859 P.2d 169, 175
(1993).

22

Petitioner contends that the murder was “unexpected and accidental.” (Doc. 214 at

23

113.) However, because “[t]he defendant does not have to intend to kill beforehand to

24
25

satisfy the statute,” State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 (1990), the fact

26

that Petitioner did not “set out to murder anyone” (Doc. 219 at 57) does not prevent

27

application of the pecuniary gain factor. Moreover, the argument that the murder was

28

accidental is not supported by the record. When he was discovered burglarizing the
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5
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7
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Wagners’ home, Petitioner attacked Mr. Wagner, pushing him out the front door and onto
the ground and then stabbing him seven times. Gonzales, 181 Ariz. at 506, 892 P.2d at
842.
Second, regarding his vagueness facial challenge to (F)(3), the Ninth Circuit has
consistently rejected the argument that the pecuniary gain factor fails to narrow the class
of death-eligible defendants. See Williams, 441 F.3d at 1059; Woratzeck v. Stewart, 97
F.3d 329, 335 (9th Cir. 1996).
Claim 30 is denied.
Claim 33

13

Prior to sentencing Petitioner, the trial court reviewed a presentence report that

14

contained letters from Ms. Wagner and family friends recommending that Petitioner

15
16
17
18
19
20
21

receive the death sentence. (ROA 380; see RT 4/27/92 at 43, 57.) Petitioner alleges that
the court’s review of these materials violated his Eighth Amendment rights. (Doc. 214 at
115.) The Arizona Supreme Court rejected this claim on direct appeal. Gonzales, 181
Ariz. at 516, 892 P.2d at 852. The claim is without merit.
In Booth v. Maryland, 482 U.S. 496, 509 (1987), the Supreme Court held that the

22

introduction of a victim impact statement to a capital sentencing jury violated the Eighth

23

Amendment. In Payne v. Tennessee, 501 U.S. 808, 827 (1991), the Supreme Court

24
25

revisited Booth and overruled it in part, holding that the Eighth Amendment does not

26

erect a per se barrier to the admission of victim impact evidence but leaving intact

27

Booth’s prohibition on the admission of characterizations and opinions from the victim’s

28

family about the crime, the defendant, or the appropriate sentence. Id. at 830 n.2.
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Under Arizona law at the time of Petitioner’s trial, however, the trial judge, rather
than a jury, determined the penalty in capital cases. In Gulbrandson v. Ryan, 738 F.3d
976, 995–96 (9th Cir. 2013), the Ninth Circuit rejected the petitioner’s Booth claim,
finding that there was no clearly established federal law directly addressing the question
of whether a judge, as opposed to a jury, is prohibited from considering victim impact
evidence. The court explained:
We previously recognized this distinction in Rhoades v. Henry, 638
F.3d 1027 (9th Cir. 2011), where we held that Booth’s concern that victim
impact statements would “inflame the jury” is “not the same when . . . a
judge does the sentencing.” Id. at 1055. As we have explained, courts “must
assume that the trial judge properly applied the law and considered only the
evidence he knew to be admissible.” Gretzler v. Stewart, 112 F.3d 992,
1009 (9th Cir. 1997); Rhoades, 638 F.3d at 1055.
Accordingly, because there is no Supreme Court case “squarely
address[ing] the issue” whether a judge is barred from consideration of
such victim impact evidence, it cannot be said that the Arizona Supreme
Court unreasonably applied clearly established federal law when it denied
Gulbrandson’s Eighth Amendment claim.
Id. at 966.
Moreover, there is no evidence that the trial court disobeyed or misapplied the law
by improperly considering the opinions of the victim’s family when determining

22

Petitioner’s sentence. Nor is there evidence that the Arizona Supreme Court in its

23

independent review of Petitioner’s sentence improperly considered the victim impact

24
25
26
27
28

evidence. Claim 33 is denied.
Claim 34
Petitioner alleges that Arizona’s death penalty statute precludes the sentencer from
considering all relevant mitigation, in violation of the Sixth, Eighth and Fourteenth
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Amendments. (Doc. 214 at 118.)
At the time of Petitioner’s sentencing, Arizona’s capital sentencing statute

provided:
Mitigating circumstances shall be any factors proffered by the defendant or
the state which are relevant in determining whether to impose a sentence
less than death, including any aspect of the defendant’s character,
propensities or record and any of the circumstances of the offense,
including but not limited to the following [enumerated circumstances]:
A.R.S. § 13–703(G).
Petitioner contends that the statute “limit[s] the trial court in its consideration of
mitigating circumstances to only those which are proffered by either the state or the

13

defendant.” (Doc. 214 at 118–19.) The Arizona Supreme Court’s denial of this claim,

14

Gonzales, 181 Ariz. at 507, 892 P.2d at 843, was neither contrary to nor an unreasonable

15
16
17
18
19
20
21

application of clearly established federal law.
In Lockett v. Ohio, 438 U.S. 586, 604 (1978), the Supreme Court held that “the
Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of
capital case, not be precluded from considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances of the offense that the

22

defendant proffers as a basis for a sentence less than death.” The definition of mitigating

23

circumstances set out in A.R.S. § 13–703(G) is consistent with this principle. The

24
25

reference to “factors proffered by the defendant or the state” cannot reasonably be read as

26

prohibiting a sentencer from considering any form of relevant mitigating evidence.

27

Claim 36

28

Petitioner alleges that Arizona’s capital sentencing scheme violates the Eighth and
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Fourteenth Amendments because it requires a death sentence to be imposed whenever an
aggravating circumstance and no mitigating circumstances are found. (Doc. 214 at 119.)
The Supreme Court has rejected the claim that Arizona’s death penalty statute is
impermissibly mandatory and creates a presumption in favor of the death penalty. Walton
v. Arizona, 497 U.S. 639, 651–52 (1990), overruled on other grounds by Ring, 536 U.S.
584; see also Kansas v. Marsh, 548 U.S. 163, 173–74 (2006). Accordingly, Claim 36 is
denied.
Claim 39
Petitioner alleges that Arizona’s capital sentencing scheme violates the Eighth and

13

Fourteenth Amendments because it requires a defendant to affirmatively prove that the

14

court should spare his life. (Doc. 214 at 120.) The Supreme Court has rejected the

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argument that “Arizona’s allocation of the burdens of proof in a capital sentencing
proceeding violates the Constitution.” Walton, 497 U.S. at 651. Claim 39 is denied.
Claim 40
Petitioner alleges that Arizona’s death penalty statute is unconstitutional because it
lacks ascertainable guidelines for the sentencer to follow in weighing aggravating and

22

mitigating factors, in violation of Petitioner’s rights under the Fifth, Sixth, Eighth, and

23

Fourteenth Amendments. (Doc. 214 at 121.)

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25

Arizona’s death penalty scheme allows only certain, statutorily-defined

26

aggravating circumstances to be considered in determining eligibility for the death

27

penalty. This scheme has been found constitutionally sufficient. See Lewis, 497 U.S. at

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774–77; Walton, 497 U.S. at 649–56; Woratzeck, 97 F.3d at 334–35; Smith, 140 F.3d at
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1272.
There is no Supreme Court authority which constitutionally requires that a jury be
instructed on a burden of proof in the sentence selection phase in a capital case; nor is
there any Supreme Court authority which would require a burden of proof or persuasion
be assigned to any of the jury’s penalty phase determinations. On the contrary, the
Supreme Court has held that a “capital sentencer need not be instructed how to weigh any

9

particular fact in the capital sentencing decision.” Tuilaepa v. California, 512 U.S. 967,

10

979 (1994); cf. Franklin v. Lynaugh, 487 U.S. 164, 179 (1988) (“[W]e have never held

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that a specific method for balancing mitigating and aggravating factors in a capital

13

sentencing proceeding is constitutionally required.”). Claim 40 is denied.

14

Claim 41

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Petitioner alleges that Arizona’s capital sentencing scheme violates the Eighth
Amendment because it does not afford capital defendants an opportunity to voir dire the
sentencing judge. (Doc. 214 at 122.) This claim is meritless.
Petitioner cites “no authority for the proposition that a defendant has a
constitutional right to voir dire a judge, let alone to inquire about a judge’s views on the

22

death penalty.” Atwood v. Schriro, 489 F.Supp.2d 982, 1059 (D.Ariz. 2007). The rule

23

providing for inquiry into prospective jurors’ views on capital punishment derives from

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the right to an impartial and unbiased jury under the Sixth and Fourteenth Amendments.

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See Morgan v. Illinois, 504 U.S. 719, 726 (1992). Trial judges are presumed to follow the

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law. Walton, 497 U.S. at 653; see State v. Rossi, 154 Ariz. 245, 248, 741 P.2d 1223, 1226

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(1987) (explaining that mere possibility of bias or prejudice does not entitle a criminal
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defendant to voir dire the trial judge at sentencing). Because Petitioner has not shown
that he has a constitutional right to voir dire a sentencing judge, the state court’s refusal
to recognize such a right is neither contrary to nor an unreasonable application of federal
law.
Claim 42

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Petitioner alleges that Arizona’s capital sentencing scheme violates the Eighth and

8
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Fourteenth Amendments because it affords the prosecutor unbridled discretion to seek the

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death penalty. (Doc. 214 at 124.) The claim is meritless. Prosecutors have wide discretion

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in deciding whether to seek the death penalty. See McCleskey v. Kemp, 481 U.S. 279,

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296–97 (1987); Gregg v. Georgia, 428 U.S. 153, 199 (1976) (explaining that pre-

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sentencing decisions by actors in the criminal justice system that may remove an accused

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from consideration for the death penalty are not unconstitutional). The Ninth Circuit has
rejected the argument that Arizona’s death penalty statute is constitutionally infirm
because “the prosecutor can decide whether to seek the death penalty.” Smith, 140 F.3d at
1272.
Claims 45, 47, 48, and 5016

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Petitioner raises several claims of ineffective assistance of trial counsel. He raised

23

these claims in his first PCR proceeding. The state court found the allegations in Claims

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25
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45, 47, and 48 precluded because Petitioner could have raised them on direct appeal. (ME
4/21/98.) However, this Court found the claims were not defaulted because the state court

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28

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In his memorandum on the merits, Petitioner states that he “dropped” Claim 46.
(Doc. 215 at 128.) The Court will not consider the claim.
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did not apply an adequate procedural bar. (Doc. 97 at 30.) Because the state court did not
reach the merits of Claims 45, 47, and 48, this Court’s review is de novo. See Pirtle v.
Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
The state court addressed the allegations in Claim 50 on the merits and denied the
claim. (ME 4/21/98; see Doc. 97 at 30.) Therefore, the Court will review Claim 50 under
the standards of 28 U.S.C. § 2254(d)(1).

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Claims of ineffective assistance of counsel are governed by the principles set forth

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in Strickland v. Washington, 466 U.S. 668 674 (1984). To prevail under Strickland, a

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petitioner must show that counsel’s representation fell below an objective standard of
reasonableness and that the deficiency prejudiced the defense. Id. at 687–88.
The inquiry under Strickland is highly deferential, and “every effort [must] be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.” Id. at 689; see Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam); Bobby v.
Van Hook, 558 U.S. 4 (2009) (per curiam); Cox v. Ayers, 613 F.3d 883, 893 (9th Cir.
2010). To satisfy Strickland’s first prong, a defendant must overcome “the presumption

22

that, under the circumstances, the challenged action might be considered sound trial

23

strategy.” Id.

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With respect to Strickland’s second prong, a defendant must affirmatively prove

26

prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have been different. A

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reasonable probability is a probability sufficient to undermine confidence in the
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1

outcome.” Id. at 694.

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“Surmounting Strickland’s high bar is never an easy task,” Padilla v. Kentucky,

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4
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559 U.S. 356, 371 (2010), and “[e]stablishing that a state court’s application of Strickland
was unreasonable under § 2254(d) is all the more difficult.” Richter, 131 S. Ct. 788. As
the Court explained in Richter:

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Even under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing counsel, and with the
judge. It is “all too tempting” to “second-guess counsel’s assistance after
conviction or adverse sentence.” [Strickland, 466 U.S.] at 689. The
question is whether an attorney’s representation amounted to incompetence
under “prevailing professional norms,” not whether it deviated from best
practices or most common custom. [Id.] at 690.

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Id.
Claim 45
Petitioner alleges that trial counsel performed at a constitutionally ineffective level
by failing to raise an objection or move for a mistrial when he discovered that Deborah
Wagner and Roger Daughtry had a conversation prior to Daughtry’s testimony in the
second trial. (Doc. 214 at 124.) This claim satisfies neither prong of Strickland. As

22

discussed above, the record does not suggest that the conversation between Ms. Wagner

23

and Daughtry affected either’s testimony. During his cross-examination of Daughtry,

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counsel brought out the fact that Daughtry had discussed the case with Ms. Wagner.

26

Under these circumstances, counsel did not perform deficiently failing to object or move

27

for a mistrial, and there was a not a reasonable probability of a different verdict if he had.

28

Claim 47
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Petitioner alleges that trial counsel performed at a constitutionally ineffective level
when he failed to object or move for a mistrial in response to the hearsay testimony of a
police detective regarding Cathy Trinidad’s previous statements. (Doc. 214 at 128.)
Cathy Trinidad, then 11 years old, testified in the second trial. (RT 6/3/91 at 1846.) During her testimony, the prosecutor asked, “when you talked to the police
detectives, did you tell those detectives that Mr. Gonzales said that a man stabbed him

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while a woman tried to tie his legs together with the strap on her purse?” (Id. at 29.)

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Cathy responded “Yes.” (Id.) She testified that Petitioner said he was stabbed because

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“he was breaking in their house.” (Id. at 30.) She also testified that when he came to the

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apartment, Petitioner had a brownish colored purse. (Id.) Inside the purse, she saw a

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“cigarette thing with the lighter in it and just bank cards and stuff.” (Id. at 31.) She denied

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telling the police that Petitioner had a knife. (Id. at 31, 34.) She also denied telling the
police that Petitioner had a hat when he left the apartment. (Id. at 25, 35–36.)
In his cross-examination, defense counsel used Cathy’s previous testimony to
bring out inconsistences with the State’s theory of the case, including the time at which
Petitioner left the apartment, what he was wearing, his explanation for why he was

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bleeding when he returned, and Cathy’s statement that a sketch shown on the television

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news did not look like Petitioner. (Id. at 38–42.) Counsel also impeached Cathy’s

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testimony about what Petitioner said about being in the house. (Id. at 42.) He asked, “Do

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you remember you [sic] giving this answer: He didn’t say nothing about that. I heard on

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the news that someone broke in someone’s house.” (Id.) Cathy agreed that she had said

28

that. (Id.)
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The following day, the prosecution recalled Detective Charles Hodges to testify
about his interview with Cathy. (RT 6/4/91 at 114–18.) Hodges testified that Cathy told
him that Petitioner said he had been in the house “to get some money.” (Id. at 116.) When
asked, “Did she tell you anything happened while Mr. Gonzales was in that home?”
Hodges testified that Cathy told him that Petitioner said “he had had to stab a man and a
woman because she tried to tie him up.” (Id.) The following exchange then occurred:
Q: Did she tell you—did you ask her any questions about why Mr.
Gonzales had to stab stab [sic] these people?

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A. Yes. I asked her why—

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[Defense Counsel]: I object. I don’t believe it’s proper.

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THE COURT: The objection is overruled. I think basis of my ruling [sic].
THE WITNESS: She told me the reason was because they had tried to tie
him up.
(Id. at 117.)
Petitioner argues that counsel performed ineffectively by making only a “general
objection” that was “[p]redictably” overruled. (Doc. 214 at 129.) He contends that
“reasonably effective counsel” would have raised a hearsay objection. (Doc. 220 at 83.)

22

Petitioner does not meet his burden of showing that counsel’s performance here

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was deficient or prejudicial. Counsel raised an objection, which the court overruled.

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Specifying that the objection was based on hearsay would not have changed the court’s

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ruling, particularly since Cathy’s testimony about why Petitioner was stabbed was

27

inconsistent with her statement to Detective Hodges and therefore was likely

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admissible.17 Also, as Respondents note, competent counsel could have determined that
pursuing the matter would simply have highlighted Cathy’s damaging testimony.
Counsel’s performance was not deficient and did not prejudice Petitioner. Claim
47 is denied.
Claim 48
Petitioner alleges that trial counsel performed at a constitutionally ineffective level
when he failed to object to the hearsay testimony of a police officer regarding Gloria
Alvarez’s statements to the police. (Doc. 214 at 133.) The claim is without merit.
In the second trial, Gloria Alvarez testified that when Petitioner came back to the

13

apartment on February 20, 1990, she thought he was wearing a long white shirt with

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stripes and a short sleeved t-shirt underneath. (RT 5/30/91 at 130.) The prosecutor

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questioned her about her interview with the police:
Q. Did you tell Detective Butler the defendant was wearing a white shirt
with vertical stripes on it?

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A. When they were asking those questions I wasn’t too sure what he was
wearing. They kept insisting I knew what he was wearing that night. I was
tired so, you know, I kept telling them what I thought he was wearing. They
kept saying he was wearing this, they kept insisting I was lying.
(Id. at 143.)
On cross-examination, defense counsel asked Alvarez about the circumstances of
her police interrogation. She testified that she was handcuffed to a table inside a small
room for four hours. (Id. at 153–54.) She felt like the detectives were threatening to

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28

17

Arizona Rule of Evidence 801(d)(1) allows the admission of a statement that is
inconsistent with the declarant’s testimony.
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charge her. (Id. at 155.) According to her testimony, the detectives kept insisting that she
was lying about what Petitioner wore on the night of the crimes: “I would mention the
color of [sic] shirt he was wearing, the design, and they said that I was lying, they knew I
was lying.” (Id. at 156.) She originally told them that it was a vertical striped shirt. (Id.)
Later in the interview, the detectives suggested that it was a checked shirt. (Id.) When
asked by defense counsel if she “recall[ed] today what kind of shirt it was?” Alvarez

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answered, “It was white with stripes on it.” (Id.) She testified that the detectives told her

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she would not be free to leave until she told them what they wanted to hear. (Id. at 157–

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58.)

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On re-direct, the prosecutor asked:

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Q: Did you tell Detective Butler Mr. Gonzales was wearing Levi’s,
checkered flannel shirt, red with blue and black in it, white tennis shoes
along with a dark cap when he left?

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A: I had mentioned what I thought he was wearing that night. After that
they told me what they thought he was wearing and I agreed to it, because
at that time they kept telling me I was not going out. I had been there for
hours and I was not going to leave until they heard what they wanted to
hear.
(Id. at 166.)
Detective Butler testified later in the trial. During the prosecutor’s direct
examination, the following exchange occurred:
Q: During the course of your interview with Miss Alvarez did you ask her
what clothes Mr. Gonzales was wearing the night of February 20, 1990.
[Defense Counsel:] I don’t know where it was going. I don’t think his [sic]
in [sic] impeachable area.
THE COURT: Let’s take the afternoon recess.
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(RT 6/4/91 at 132.)
During the recess, defense counsel explained the basis of his objection. (Id. at
133–35.) He argued that the fact Alvarez had changed her testimony from what she said

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at the police station was already before the jury and it would be improper impeachment to

7

allow Detective Butler to testify about her earlier statements. (Id. at 133.) The court

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overruled the objection. (Id. at 135.) It found there was a “material difference” between

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Alvarez’s trial testimony about what Petitioner was wearing and the statements she gave

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to the detectives. (Id.) The court also noted that Alvarez’s “testimony was in my view

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evasive as much as she could make it” and concluded that the testimony was inconsistent

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enough to be allowed under Rule 801. (Id. at 135.)

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Detective Butler then testified that during his interview of Alvarez, she had

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“responded that Ernest was wearing a blue baseball cap, white tennis shoes, Levis, a

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flannel shirt and red, black or blue squares in it.” (Id. at 136.) Detective Butler also

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acknowledged that Alvarez had originally told him that Petitioner was wearing “a white
shirt with vertical stripes in it.” (Id.)
Petitioner contends that counsel’s objection was “clumsy” (Doc. 214 at 134) and
that counsel did an inadequate job explaining the legal basis for the objection when the

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parties met with the judge during the recess. (Doc. 220 at 75.) Notwithstanding

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Petitioner’s characterization of the objection, it is clear that counsel was challenging the

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State’s position that the testimony was admissible as a prior inconsistent statement. It is

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also clear, as the trial court found, that Alvarez’s trial testimony about Petitioner’s clothes
was both evasive and inconsistent with her statement to the detectives.
A trial court “has considerable discretion in determining whether a witness's
evasive answers or lack of recollection may be considered inconsistent with that witness's
prior out-of-court statements.” State v. Salazar, 216 Ariz. 316, 319, 166 P.3d 107, 110
(App. 2007); State v. Hines, 130 Ariz. 68, 71, 633 P.2d 1384, 1387 (1981) (explaining

9

that “inconsistency is to be determined, not by individual words or phrases alone, but by

10

the whole impression or effect of what has been said or done”). The trial court reasonably

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determined that Detective Butler’s testimony was admissible, and it is speculation to

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assert that a more detailed objection would have persuaded the court otherwise. Such

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speculation is insufficient to meet Petitioner’s burden under Strickland.

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Counsel’s performance was not deficient and did not prejudice Petitioner. Claim
49 is denied.
Claim 50
Petitioner alleges that trial counsel performed at a constitutionally ineffective level
by failing to request the appointment of a second lawyer as recommended by ABA
Standards. (Doc. 214 at 138.)
The PCR court denied this claim, explaining that “no authority other than ABA
recommendation is cited; and, although the Arizona Supreme Court has amended the

26

criminal rule on the point, effective Jan. 1, 1998, the law on the matter remains against

27

defendant.” (ME 4/21/98.) The court cited State v. Lee, 189 Ariz. 590, 601, 944 P.2d

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1204, 1214 (1997), which noted that Rule 6.2 of the Arizona Rules of Criminal
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Procedure, requiring the presiding judge to appoint two counsel in capital cases, became
effective on January 1, 1998. At the time of Petitioner’s trial, however, Arizona law did
not require the appointment of two attorneys.
Petitioner focuses his argument on the ABA guidelines. However, as the Seventh
Circuit has noted when addressing a similar argument based on the guidelines, “[t]he key
word here is ‘recommended.’ Trial counsel cannot be said to be constitutionally

9

ineffective for deciding not to bring in co-counsel, unless there is some reason . . . why

10

the first lawyer is unable to provide adequate representation.” Pitsonbarger v. Gramley,

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141 F.3d 728, 738 (7th Cir. 1998).

13

Thus, failure to seek the appointment of second counsel can give rise to habeas

14

relief only if this Court first determines that the absence of co-counsel prejudiced the

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defense. Cf. Allen v. Woodford, 395 F.3d 979, 998 (9th Cir. 2005) (explaining there can
be no deficient performance unless the record shows that counsel was unable to try the
case alone); Riley v. Taylor, 277 F.3d 261, 306 (3d Cir. 2001) (“The Constitution does
not specify the number of lawyers who must be appointed. If a single attorney provides
reasonably effective assistance, the Constitution is satisfied, and if a whole team of
lawyers fails to provide such assistance, the Constitution is violated.”).
The record does not show, and Petitioner does not argue, that counsel was unable
to try this case alone. The PCR court’s denial of this claim was neither contrary to nor an
unreasonable application of clearly established federal law. Claim 50 is denied.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, an applicant
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cannot take an appeal unless a certificate of appealability has been issued by an
appropriate judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases
provides that the district judge must either issue or deny a certificate of appealability
when it enters a final order adverse to the applicant. If a certificate is issued, the court
must state the specific issue or issues that satisfy 28 U.S.C. § 2253(c)(2).
Under § 2253(c)(2), a certificate of appealability may issue only when the

9

petitioner “has made a substantial showing of the denial of a constitutional right.” This

10

showing can be established by demonstrating that “reasonable jurists could debate

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12

whether (or, for that matter, agree that) the petition should have been resolved in a

13

different manner” or that the issues were “adequate to deserve encouragement to proceed

14

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For procedural rulings, a

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certificate of appealability will issue only if reasonable jurists could debate whether the
petition states a valid claim of the denial of a constitutional right and whether the court’s
procedural ruling was correct. Id.
The Court finds that reasonable jurists could debate its resolution of Claims 9,
14/15, and 27. For the reasons stated in this order, the Court finds that reasonable jurists
could not debate its resolution of the remaining claims.

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CONCLUSION
Based on the foregoing,
IT IS HEREBY ORDERED that Petitioner’s Amended Petition for Writ of
Habeas Corpus (Doc. 28) is DENIED.

The Clerk of Court shall enter judgment

accordingly.
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IT IS FURTHER ORDERED that the stay of execution entered by this Court on
November 16, 1999 (Doc. 3), is VACATED.
IT IS FURTHER ORDERED granting a certificate of appealability with respect
to Claims 9, 14/15, and 27.
IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of
this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ
85007-3329.
DATED this 11th day of August, 2015.

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Honorable Stephen M. McNamee
Senior United States District Judge

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