Newell v. Ryan et al

Filing 65

ORDER denying 56 Petitioner's motion for evidentiary development. Signed by Judge John J Tuchi on 9/9/15.(LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Steven Ray Newell,

No. CV-12-02038-PHX-JJT
Petitioner,

10
11

v.

12

Charles L. Ryan, et al.,

ORDER
DEATH PENALTY CASE

Respondents.

13
14

Before the Court is Petitioner’s motion for evidentiary development. (Doc. 56.)

15

Petitioner seeks expansion of the record, discovery, and an evidentiary hearing on the

16

claims alleged in his petition for writ of habeas corpus. Respondents oppose evidentiary

17

development. (Doc. 57.) For the reasons set forth below, the motion is denied.
BACKGROUND

18
19

I.

The Crime

20

Petitioner sexually assaulted and murdered eight-year-old Elizabeth Byrd,

21

strangling her to death with the strap of her purse. A jury convicted him of first-degree

22

murder, sexual conduct with a minor, and kidnapping. He was sentenced to death on the

23

first-degree murder conviction. Except where otherwise indicated, the following factual

24

summary is taken from the opinion of the Arizona Supreme Court affirming the

25

convictions and sentences. State v. Newell, 212 Ariz. 389, 393–96, 132 P.3d 833, 837–

26

40 (2006).

27
28

1

On the morning of May 23, 2001, a neighbor saw Elizabeth walking toward school

2

with Petitioner following closely behind. Elizabeth knew Petitioner because he had dated

3

her older sister.

4

About an hour later, a Salt River Project (“SRP”) employee working in a field near

5

the school came upon someone standing in an irrigation ditch. The person in the ditch

6

turned and looked at him and then ran away. The employee noticed a rolled up piece of

7

green indoor-outdoor carpeting in the water near where the person had been standing.

8

That afternoon, Elizabeth’s mother arrived home to find that Elizabeth had not

9

returned from school. When Elizabeth did not come home that night, the police were

10

called. The officers were told that Elizabeth had not been in school that day. A missing

11

persons report was called in.

12

The next morning, while searching the field near the school, Phoenix Police

13

Department officers discovered a child’s shoe, a children’s book, a black purse or

14

knapsack, a pair of socks, and a coin purse. That afternoon, a detective from the

15

Maricopa County Sheriff’s Office discovered Elizabeth’s body in an irrigation ditch in

16

the field, rolled up in green carpeting. Shoe prints were found along the ditch.

17

Later that day, the SRP employee went to the Sheriff’s office after seeing a news

18

report about the investigation. He was shown a photographic lineup, but he did not

19

identify anyone in the lineup as the person he had seen in the ditch.

20

An autopsy revealed bruising on Elizabeth’s hands, wrists, and forearms. A

21

ligature was still tied around Elizabeth’s neck, and there were abrasions on the left side of

22

her neck, consistent with fingers grasping at the ligature trying to remove it. She also had

23

bruising and an abrasion on her face.

24

The autopsy also revealed evidence of sexual assault. Elizabeth’s vulva was

25

bruised and the vaginal tract had abrasions, with a tear on the side of one of the abrasions.

26

One abrasion in the vaginal tract went right up to the hymen, but the hymen itself was

27

still intact.

28
-2-

1

The medical examiner concluded that Elizabeth died from asphyxiation due to

2

ligature strangulation. Once the ligature had been tightened, Elizabeth likely died within a

3

minute or two. The medical examiner further determined that it was likely that Elizabeth

4

had stopped breathing before she was placed in the water.

5
6

Elizabeth’s underwear, along with blood, bone, and tissue samples, were collected
and sent to the Department of Public Safety (“DPS”) lab for testing.

7

A detective from the Maricopa County Sheriff’s Office contacted Petitioner on

8

May 27, 2001. Petitioner agreed to come to the station to be interviewed. He was asked

9

about the day of Elizabeth’s disappearance and if he knew anything that might be helpful

10

to the investigation. Petitioner described what he did that day but made no incriminating

11

statements.

12

Petitioner was contacted again by a Sheriff’s detective at Elizabeth’s funeral on

13

June 2, 2001. The detective went to the funeral to find Petitioner because he had been

14

told that Petitioner was wearing Converse All-Star tennis shoes, the type of shoe that

15

matched the prints found near Elizabeth’s body. Petitioner voluntarily went to the station

16

and again answered questions about his activities at the time of Elizabeth’s

17

disappearance. During the interview, Petitioner’s shoes were taken to be compared with

18

the footprints at the ditch. Two days later, an analyst from the Sheriff’s office concluded

19

that it was “highly probable” that the footprints at the crime scene had been made by

20

Petitioner’s shoes.

21

On the evening of June 4, two detectives contacted Petitioner and asked if he

22

would consent to another interview. Petitioner agreed. Shortly after 8:00 p.m., the

23

detectives began questioning him. The interrogation was videotaped. The detectives

24

advised Petitioner of his Miranda rights. He waived those rights and agreed to speak with

25

the detectives.

26

The questioning began in a manner similar to the two previous interviews, but

27

became more accusatory after the second hour. Petitioner initially denied having anything

28

to do with Elizabeth’s death. Eventually, however, he acknowledged that he had been
-3-

1

with Elizabeth in the field on the morning of her disappearance. He admitted he had

2

grabbed her and placed her between his legs while he rubbed up against her, causing him

3

to ejaculate. He then acknowledged placing her in the water. When he saw the SRP

4

employee, he covered Elizabeth with the carpeting and ran off. Petitioner maintained that

5

Elizabeth was alive when he left her in the ditch and denied sexually abusing her. He was

6

taken to jail on the morning of June 5, 2001.

7

Later that day, the SRP employee was shown another photo lineup, which

8

included a picture of Petitioner. He identified Petitioner as the person he had seen in the

9

ditch.

10

A criminalist with the DPS crime lab conducted an analysis on Elizabeth’s

11

underwear. Semen was found inside of the central crotch area. A DNA analysis

12

established that Petitioner was the likely source of the semen.

13

II.

Procedural background

14

On June 14, 2001, Petitioner was indicted on charges of first-degree murder,

15

sexual conduct with a minor, and kidnapping. On February 12, 2004, a jury convicted

16

him on all counts.

17

A sentencing hearing was held on the first-degree murder charge. In the

18

aggravation phase, the jury found that three aggravating circumstances had been proved

19

beyond a reasonable doubt: a previous conviction for a serious offense, under A.R.S. §

20

13–703(F)(2); the murder was committed “in an especially heinous, cruel or depraved

21

manner,” § 13–703(F)(6); and at the time of the murder Petitioner was an adult and the

22

victim “was under fifteen years of age,” § 13–703(F)(9).

23

In the mitigation phase of sentencing, Petitioner presented testimony from family

24

members, including his mother, stepfather, half-sister, and aunts. The testimony detailed

25

Petitioner’s troubled childhood and family life, which featured extreme poverty, neglect,

26

and periods of homelessness. Petitioner’s mother testified that he was sexually abused as

27

a child, once by a teenage neighbor and once by his mother’s boyfriend. (RT 2/23/04

28
-4-

1

(a.m.) at 47–52.)1 The testimony also recounted Petitioner’s history of drug abuse,

2

including his chronic use of methamphetamine, which began when he was in the seventh

3

grade and his stepfather introduced him to the drug. (See RT 2/23/04 at 37–38.)

4

Although defense counsel retained experts to examine Petitioner, they did not

5

present expert testimony about his drug use or mental health. The trial court precluded

6

such evidence as a sanction for Petitioner’s refusal, on counsel’s advice, to submit to an

7

examination by the State’s expert.2

8

The jury determined that Petitioner should be sentenced to death for the first-

9

degree murder conviction. The Arizona Supreme Court affirmed the convictions and

10

sentences. Newell, 212 Ariz. 389, 132 P.3d 833.

11

Petitioner then pursued post-conviction relief (“PCR”). His Notice was filed on

12

June 5, 2007. On May 23, 2008, the Arizona Supreme Court appointed counsel to

13

represent Petitioner in the PCR proceedings. Counsel retained an investigator, a

14

mitigation specialist, a neuropsychologist, and a pharmacologist.

15

On May 4, 2009, Petitioner filed his PCR petition, raising, among other claims,

16

allegations that trial counsel performed ineffectively at sentencing by failing to present

17

“substantial mitigation evidence,” failing to present expert testimony regarding

18

Petitioner’s mental health and its connection to crimes, failing to request an expert on

19

addiction and poly-substance abuse, failing to subpoena certain witnesses to testify at the

20

penalty phase, and being unprepared to rebut testimony of a probation officer who

21

testified at the sentencing hearing. (Doc. 58-1, Ex. 21.) The PCR court granted an

22
23

1

24

2

25
26
27
28

“RT” refers to the court reporter’s transcript.

Prior to trial Petitioner’s counsel retained three experts who examined Petitioner.
Dr. Pablo Stewart, a forensic psychiatrist, diagnosed Petitioner with Post-Traumatic
Stress Disorder, major depressive disorder, Attention Deficit/Hyperactivity Disorder,
cognitive disorder NOS, and polysubstance dependence. (Doc. 59-4, Ex. 39.) Dr. John
Wicks, a clinical neuropsychologist, diagnosed Petitioner with Attention
Deficit/Hyperactivity Disorder, polysubstance abuse and dependence, and cognitive
disorder NOS. (Doc. 59-5, Ex. 43.) Dr. Richard Lanyon, a psychologist, diagnosed
Petitioner with severe methamphetamine abuse and severe borderline personality
disorder. (Doc. 59-6, Ex. 44.)
-5-

1

evidentiary hearing on these ineffective assistance claims and dismissed the remaining

2

claims. (ME 3/10/10.)3

3

At the evidentiary hearing, which began in March 2011, Petitioner presented

4

testimony from trial counsel, who discussed their decision not to permit Petitioner to be

5

examined by the State’s mental health expert. They testified that they were “flying blind”

6

because this was their first trial since Ring4 and there was no direct authority to guide

7

their decision about whether to allow Petitioner to be examined by an independent expert

8

before the guilt phase of trial.5 (See RT 3/3/11 at 36–39.)

9

Petitioner also called Dr. Edward French, a pharmacologist, who testified about

10

the behavioral effects of methamphetamine. Dr. French opined that methamphetamine

11

affected Petitioner’s ability to control his actions at the time of the crimes. (Id. at 74.) He

12

also testified that the effects of chronic methamphetamine use can include depression,

13

hallucinations, aggressive behavior, and possible brain damage. (Id. at 66.)

14

Finally, Petitioner called Dr. Pablo Stewart, the forensic psychiatrist retained by

15

Petitioner’s trial counsel. (RT 3/4/11 at 5, 13–14.) Dr. Stewart testified that Petitioner’s

16

Post-Traumatic Stress, major depressive disorder, and Attention Deficit Hyperactivity

17

Disorder affected his executive functioning. (Id. at 48.) He explained that those

18

conditions predated Petitioner’s substance abuse and contributed to it because untreated

19
3

20

“ME” refers to the court’s minute entries.

4

21
22
23

Ring v. Arizona, 536 U.S. 584 (2002), mandated that a jury must determine the
existence of factors necessary for imposition of the death sentence. Prior to Ring, in
Arizona the trial judge made the sentencing decision in death penalty cases. Ring
invalidated the statute in place at the time of Petitioner’s crime and arrest. He was tried
and sentenced under the new statutory scheme that provided for jury sentencing.
5

24
25
26
27
28

Before trial Petitioner filed a special action in the Arizona Supreme Court to
challenge the trial court’s ruling excluding testimony from his experts. At the time of the
special action the supreme court had accepted jurisdiction in Phillips v. Araneta, 208
Ariz. 280, 283, 93 P.3d 480, 483 (2004), to consider the issue of whether a court can
compel a defendant to participate in a mental health examination with the State’s expert.
The supreme court denied Petitioner’s request for a stay pending its decision in Phillips.
In 2004, after Petitioner’s trial, the court held that once a defendant puts his mental health
in issue “during the penalty phase of a capital trial,” a trial court may order the defendant
to submit to a mental examination by the State’s expert. Phillips, 208 Ariz. 283, 93 P.3d
at 483.
-6-

1

mental illness is a risk factor for substance abuse. According to Dr. Stewart, Petitioner

2

used drugs to deal with the symptoms of his disorders. (Id. at 48–49.)

3

The parties stipulated to the admission of reports from neuropsychologists

4

Dr. Karen Froming, an expert retained by Petitioner, and Dr. Kiran Amin, retained by the

5

State. (RT 6/10/11 at 4.) The State then called Dr. Steven Pitt, a forensic psychiatrist. (Id.

6

at 7.) Dr. Pitt noted Petitioner’s history of drug abuse and diagnosed him with depressive

7

disorder, not otherwise specified (“NOS”); personality disorder NOS with antisocial

8

traits; and a “rule out” diagnosis of pedophilia. (Id. at 16, 35–39.) He testified that

9

Petitioner’s drug use and mental conditions were not causally connected to the sexual

10

assault and murder, and that his behavior at the time of the crimes was conscious and

11

purposeful. (Id. at 30–35.) He also expressed skepticism about Petitioner’s claim that just

12

prior to the crimes he had attempted to kill himself with an injection of heroin, and

13

opined that Petitioner was malingering with respect to his inability to recall certain details

14

of the crimes. (Id. at 34–36.)

15

The PCR court denied relief. It found that trial counsel’s decision not to allow

16

Petitioner to be examined by the State’s expert—thereby forfeiting the opportunity to

17

present expert mental health evidence at sentencing—did not constitute deficient

18

performance because the decision was supported by two strategic grounds: counsel’s

19

good faith belief that allowing Petitioner to be interviewed by the State’s experts would

20

violate his Fifth and Sixth Amendment rights, and the fact that presenting mental health

21

evidence would have opened the door to unfavorable rebuttal evidence from the State.

22

(ME 1/12/12 at 4.)

23

The court also found that Petitioner was not prejudiced by counsel’s performance

24

at sentencing because the omitted mental health evidence was “somewhat cumulative” to

25

the evidence that was presented at trial and was susceptible to impeachment by the

26

State’s experts. (Id. at 8.) The court also noted that the Arizona Supreme Court in its

27

independent review had affirmed the death sentence even after taking into account the

28
-7-

1

mitigating information about Petitioner’s dysfunctional childhood and substance abuse

2

history. (Id. at 9.)

3

On September 25, 2012, the Arizona Supreme Court denied Petitioner’s petition

4

for review. Petitioner filed his petition for writ of habeas corpus in this Court on July 3,

5

2013. (Doc. 38.)
APPLICABLE LAW

6
7

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

8

Effective Death Penalty Act (“AEDPA”). Pursuant to 28 U.S.C. § 2254(d), a petitioner is

9
10
11
12
13
14
15

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.

16

The Supreme Court has emphasized that “an unreasonable application of federal

17

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

18

U.S. 362, 410 (2000). In Harrington v. Richter, 562 U.S. 86, 101 (2011), the Supreme

19

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

20

merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the

21

correctness of the state court’s decision.”

22

In Cullen v. Pinholster, 132 S. Ct. 1388, 1398 (2011), the Court reiterated that

23

“review under § 2254(d)(1) is limited to the record that was before the state court that

24

adjudicated the claim on the merits.” See Murray v. Schriro, 745 F.3d 984, 998 (9th Cir.

25

2014) (“Along with the significant deference AEDPA requires us to afford state courts’

26

decisions, AEDPA also restricts the scope of the evidence that we can rely on in the

27

normal course of discharging our responsibilities under § 2254(d)(1).”); Runningeagle v.

28

Ryan, 686 F.3d 758, 773–74 (9th Cir. 2012) (explaining that Pinholster governs
-8-

1

discovery, expansion of the record and evidentiary hearings). The Ninth Circuit has

2

observed that “Pinholster and the statutory text make clear that this evidentiary limitation

3

is applicable to § 2254(d)(2) claims as well.” Gulbrandson v. Ryan, 738 F.3d 976, 993

4

n.6 (2013) (citing § 2254(d)(2) and Pinholster, 131 S. Ct. at 1400 n.7). Therefore:
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).

5
6
7
8

Id. at 993–94.

9
Along with the AEDPA, the following principles govern evidentiary development

10
11

in habeas cases.

12

I.

Discovery

13

A habeas petitioner is not entitled to discovery “as a matter of ordinary course.”

14

Bracy v. Gramley, 520 U.S. 899, 904 (1997); see Campbell v. Blodgett, 982 F.2d 1356,

15

1358 (9th Cir. 1993). Rule 6 of the Rules Governing Section 2254 Cases provides that:

18

A judge may, for good cause, authorize a party to conduct discovery under
the Federal Rules of Civil Procedure and may limit the extent of discovery.
. . . A party requesting discovery must provide reasons for the request. The
request must also include any proposed interrogatories and requests for
admission, and must specify any requested documents.

19

Rule 6(a) and (b), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (emphasis

20

added).

16
17

21

“[A] district court abuse[s] its discretion in not ordering Rule 6(a) discovery when

22

discovery [i]s ‘essential’ for the habeas petitioner to ‘develop fully’ his underlying

23

claim.” Dung The Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2005) (quoting Jones v.

24

Wood, 114 F.3d 1002, 1009 (9th Cir. 1997)). However, courts should not allow a

25

petitioner to “use federal discovery for fishing expeditions to investigate mere

26

speculation.” Calderon v. United States Dist. Ct. for the N. Dist. of Cal. (Nicolaus), 98

27

F.3d 1102, 1106 (9th Cir. 1996); see also Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir.

28

1999) (habeas corpus is not a fishing expedition for petitioners to “explore their case in
-9-

1

search of its existence”) (quoting Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir.

2

1970)).

3

Whether a petitioner has established “good cause” for discovery under Rule 6(a)

4

requires a habeas court to determine the essential elements of the petitioner’s substantive

5

claim and evaluate whether “specific allegations before the court show reason to believe

6

that the petitioner may, if the facts are fully developed, be able to demonstrate that he is .

7

. . entitled to relief.” Bracy, 520 U.S. at 908–09 (quoting Harris v. Nelson, 394 U.S. 286,

8

300 (1969)).

9

II.

Evidentiary hearing and expansion of the record

10

While historically the district court had considerable discretion to hold an

11

evidentiary hearing to resolve disputed issues of material fact, see Townsend v. Sain, 372

12

U.S. 293, 312, 318 (1963), overruled in part by Keeney v. Tamayo–Reyes, 504 U.S. 1

13

(1992), and limited by § 2254(e)(2); Baja v. Ducharme, 187 F.3d 1075, 1077–78 (9th Cir.

14

1999), that discretion is significantly circumscribed by § 2254(e)(2) of the AEDPA. See

15

Baja, 187 F.3d at 1077–78. Section 2254 provides that:

16
17

If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that—

18

(A) the claim relies on—

19

(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or

20
21
22

(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and

23

(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.

24

28 U.S.C. § 2254(e)(2); see Williams, 529 U.S. at 437 (“If there has been no lack of

25
26

diligence at the relevant stages in the state proceedings, the prisoner has not ‘failed to

27

develop’ the facts under § 2254(e)(2)’s opening clause, and he will be excused from

28

showing compliance with the balance of the subsection’s requirements.”).
- 10 -

1

An evidentiary hearing in federal court is precluded if the petitioner’s failure to

2

develop a claim’s factual basis is due to a “lack of diligence, or some greater fault,

3

attributable to the prisoner or the prisoner’s counsel.” Id. at 432. A hearing is not barred

4

when a petitioner diligently attempts to develop the factual basis of a claim in state court

5

and is “thwarted, for example, by the conduct of another or by happenstance was denied

6

the opportunity to do so.” Id.; see Baja, 187 F.3d at 1078–79.

7

When the factual basis for a particular claim has not been fully developed in state

8

court, a district court first determines whether the petitioner was diligent in attempting to

9

develop the factual record. See Baja, 187 F.3d at 1078. The diligence assessment is an

10

objective one, requiring a determination of whether a petitioner “made a reasonable

11

attempt, in light of the information available at the time, to investigate and pursue claims

12

in state court.” Williams, 529 U.S. at 435. For example, when there is information in the

13

record that would alert a reasonable attorney to the existence and importance of certain

14

evidence, the attorney “fails” to develop the factual record if he does not make reasonable

15

efforts to sufficiently investigate and present the evidence to the state court. Id. at 438–

16

39, 442.

17

Absent unusual circumstances, diligence requires that a petitioner “at a minimum,

18

seek an evidentiary hearing in state court in the manner prescribed by state law.”

19

Williams, 529 U.S. at 437. The mere request for an evidentiary hearing, however, may

20

not be sufficient to establish diligence if a reasonable person would have taken additional

21

steps. See Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (finding lack of

22

diligence where petitioner failed to present affidavits of family members that were easily

23

obtained without court order and with minimal expense); Alley v. Bell, 307 F.3d 380,

24

390–91 (6th Cir. 2002) (finding lack of diligence where petitioner knew of and raised

25

claims in state court but failed to investigate all factual grounds in support of the claims);

26

Koste v. Dormire, 345 F.3d 974, 985–86 (8th Cir. 2003) (finding lack of diligence where

27

there was no effort to develop the record or assert any facts to support claim); McNair v.

28

Campbell, 416 F.3d 1291, 1299–1300 (11th Cir. 2005) (finding lack of diligence where
- 11 -

1

petitioner did not develop evidence available through petitioner, family members, and

2

literature, and did not appeal of denial of funds and hearing)

3

In sum, if a court determines that a petitioner has not been diligent in establishing

4

the factual basis for his claims in state court, it may not conduct a hearing unless the

5

petitioner satisfies one of § 2254(e)(2)’s narrow exceptions. If, however, the petitioner

6

has not failed to develop the factual basis of a claim in state court, the court considers

7

whether a hearing is appropriate or required under the criteria set forth in Townsend. 372

8

U.S. 293; see Baja, 187 F.3d at 1078.

9

Pursuant to Townsend, a federal district court must hold an evidentiary hearing in

10

a § 2254 case when the facts are in dispute, the petitioner “alleges facts which, if proved,

11

would entitle him to relief,” and the state court has not “reliably found the relevant facts”

12

after a “full and fair evidentiary hearing,” at trial or in a collateral proceeding. Townsend,

13

372 U.S. at 312–13; cf. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (explaining

14

that “an evidentiary hearing is not required on issues that can be resolved by reference to

15

the state court record”); Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

16

In any other case in which diligence has been established, the district court “has

17

the power, constrained only by his sound discretion, to receive evidence bearing upon the

18

applicant’s constitutional claim.” Id. at 318. However, if a “habeas applicant was

19

afforded a full and fair hearing by the state court resulting in reliable findings, [the court]

20

may, and ordinarily should, accept the facts as found in the hearing.” Id.

21

Under Rule 7 of the Rules Governing Section 2254 Cases, a federal habeas court

22

is authorized to expand the record to include additional material relevant to the petition.

23

Section 2254(e) (2), as amended by the AEDPA, limits a petitioner’s ability to present

24

new evidence through a Rule 7 motion to the same extent that it limits the availability of

25

an evidentiary hearing. See Cooper–Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir.

26

2005) (applying § 2254(e)(2) to expansion of the record when intent is to bolster the

27

merits of a claim with new evidence) (citing Holland v. Jackson, 542 U.S. 649, 652–53

28

(2004) (per curiam)). Accordingly, when a petitioner seeks to introduce new affidavits
- 12 -

1

and other documents never presented in state court, he must either demonstrate diligence

2

in developing the factual basis in state court or satisfy the requirements of §

3

2254(e)(2)(A) & (B).

4

DISCUSSION

5
6

Petitioner’s requests for evidentiary development encompass each of the 50 claims

7

raised in his 250-page habeas petition. (Doc. 56; see Doc. 38.) The scope of the requests,

8

which suggests an attempt to relitigate Petitioner’s trial and sentencing, is not consonant

9

with the purpose of habeas review. “Although state prisoners may sometimes submit new

10

evidence in federal court, AEDPA’s statutory scheme is designed to strongly discourage

11

them from doing so.” Pinholster, 131 S. Ct. at 1401. A federal court in habeas review is

12

“not an alternative forum for trying facts and issues which a prisoner made insufficient

13

effort to pursue in state proceedings.” Williams, 529 U.S. at 437; see Richter, 562 U.S. at

14

103 (“Section 2254(d) is part of the basic structure of federal habeas jurisdiction,

15

designed to confirm that state courts are the principal forum for asserting constitutional

16

challenges to state convictions”); Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (“[T]he

17

state trial on the merits [should be] the ‘main event,’ so to speak, rather than a ‘tryout on

18

the road’ for what will later be the determinative federal habeas hearing”). The Court

19

assesses the requested evidentiary development with these principles in mind.

20

I.

Discovery

21

Petitioner seeks an order directing the disclosure of “all files and records” or “all

22

files and reports” from 59 different institutions and agencies. (Doc. 56 at 18–23.) He also

23

seeks to depose more than 120 witnesses. (Id. at 24–28.) The scope of the discovery

24

appears to encompass any entity or individual with any connection to or knowledge of

25

Petitioner or his family. He also seeks to depose several of the jurors from his trial. (Id. at

26

28.) Petitioner contends that the information is “relevant to a clear picture of [his]

27

personal history and the relevant information trial counsel should have presented, the

28
- 13 -

1

composition of the jury, and the overall effects of the acts or omission of trial, direct

2

appeal, and post-conviction counsel.” (Id.) The requests will be denied.

3

Petitioner fails to show good cause for the discovery. Not surprisingly, given their

4

scope, Petitioner’s discovery requests lack the specificity required by Rule 6. Petitioner

5

essentially seeks to reinvestigate his case and relitigate the penalty phase of his trial. He

6

does not allege specific, relevant facts that might be found in the requested discovery or

7

obtained from the requested depositions. He acknowledges, in fact, that many of the

8

records he seeks may no longer exist. (Doc. 56 at 23 n.1.) Petitioner’s discovery requests

9

constitute the type of “fishing expedition” Rule 6 does not sanction. See Kemp v. Ryan,

10

638 F.3d 1245, 1260 (9th Cir. 2011) (“[T]he desire to engage in [an improper fishing]

11

expedition cannot supply ‘good cause’ sufficient to justify discovery.”); Rector v.

12

Johnson, 120 F.3d 551, 562 (5th Cir. 1997) (“Rule 6 does not, however, sanction fishing

13

expeditions based on a petitioner’s conclusory allegations.”); Teti v. Bender, 507 F.3d

14

50, 60 (1st Cir. 2007) (denying discovery request because petitioner “did not comply with

15

the specific requirements of Rule (6)(b); his request for discovery is generalized and does

16

not indicate exactly what information he seeks to obtain. A habeas proceeding is not a

17

fishing expedition”). Petitioner’s generalized statements regarding the potential existence

18

of discoverable material does not constitute “good cause.”

19

Other factors preclude discovery. Petitioner asserts that the requested discovery is

20

relevant to Claims 1–5, 8–10, 14–16, 19, 22–30, 35, and 50. Claims 1–4, 9, and 10 allege

21

ineffective assistance of counsel at sentencing. The claims were denied on the merits by

22

the PCR court.6 Therefore, under Pinholster, this Court’s review of the state court’s

23

decision is limited to the record before the state court, and Petitioner is not entitled to

24

evidentiary development. Pinholster, 131 S. Ct. at 1398; see Runningeagle, 686 F.3d at

25
26
27
28

6

Claim 10 alleges that counsel failed to investigate and obtain records relevant to
Petitioner’s “life history.” (Doc. 38 at 131.) Although Petitioner asserts that this claim
was not presented in state court (id. at 130), the allegations in Claim 10 cannot be
distinguished from the PCR claim that counsel failed to investigate and present
substantial mitigating evidence. (Doc. 58-1, Ex. 21.)
- 14 -

1

773 (explaining that the petitioner was “not entitled to an evidentiary hearing or

2

additional discovery in federal court because his claim is governed by 28 U.S.C. §

3

2254(d)(1)”). Claims 5, 8, 14, 19, 22, and 50 were also denied on the merits in state court,

4

so Petitioner is not entitled to discovery on those claims. Id.

5

The remaining claims for which Petitioner seeks discovery were either not

6

presented in state court or dismissed by the PCR court as precluded (Claims 15, 16, 23–

7

30, and 35). In either case, Petitioner is not entitled to evidentiary development. See

8

Runningeagle, 686 F.3d at 773–74. Moreover, the factual information Petitioner seeks

9

about his background is not relevant to the legal issues raised in many of these claims.

10

Finally, the Court will deny Petitioner’s request to depose jurors “regarding their

11

experiences related to Petitioner’s trial.” (Doc. 56 at 28.) Petitioner offers no suggestion

12

as to what information he would seek in such depositions, and the Federal Rules of

13

Evidence place significant limitations on the admissibility of testimony about a jury’s

14

deliberations. Fed. R. Evid. 606(b) (prohibiting testimony “as to any matter or statement

15

occurring during the course of the jury’s deliberations or the effect of anything upon that

16

or any other juror’s mind or emotions as influencing the juror to assent to or dissent from

17

the verdict”); see Tanner v. Unites States, 483 U.S. at 107, 117 (1987) (noting firmly

18

established common-law rule that juror testimony is inadmissible to impeach a jury

19

verdict); Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000) (explaining that “juror

20

testimony about the subjective effect of evidence on the particular juror” is not

21

admissible).

22

II.

Evidentiary hearing and expansion of the record

23

Petitioner seeks to expand the record with 118 separate exhibits. (Doc. 56 at 29–

24

53; id., Ex’s 1–118.) While the exhibits, taken as a whole, are offered in support of all 50

25

of Petitioner’s habeas claims, the bulk of the materials are relevant principally to his

26

claims alleging ineffective assistance of counsel at sentencing. The records include social

27

history documents relating to Petitioner and various family members and acquaintances.

28

(Id., Ex’s 7–99.) The materials also include declarations from Petitioner’s biological
- 15 -

1

father, neighbors, a former girlfriend, trial counsel, PCR counsel, the investigator and

2

mitigation specialist retained by PCR counsel, the mitigation specialist from Petitioner’s

3

trial, and two jurors. (Id., Ex’s 108–18.) The materials include correspondence between

4

trial team members, as well as billing records from PCR counsel, the investigator and

5

mitigation specialist, and various experts. (Id., Ex’s 1–6, 100–04.) Finally, Petitioner

6

offers two new mental health reports with accompanying test results. (Id., Ex’s 105–07.)

7

Petitioner also requests an evidentiary hearing on all of his claims. (Doc. 56 at 53.)

8

Expansion of the record and an evidentiary hearing will be denied for the reasons set

9

forth below.

10

First, as stated above, because the PCR court denied Petitioner’s claims of

11

ineffective assistance of counsel at sentencing on the merits, this Court’s review of the

12

claims is limited to the record before the state court. Pinholster, 131 S. Ct. at 1398.

13

Petitioner asserts that Pinholster does not limit the Court’s ability to allow

14

evidentiary development of claims that were not fully developed in state court despite his

15

diligence. (Doc. 56 at 2.) He also argues that “Pinholster said nothing about federal

16

habeas litigation under § 2254(d)(2), or fact development under § 2254(e).” (Id. at 2–3.)

17

Petitioner’s arguments are not supported by Pinholster or subsequent cases.

18

“While allowing a petitioner to supplement an otherwise sparse trial court record

19

may be appealing, especially where he diligently sought to do so in state court, the plain

20

language of Pinholster and Harrington precludes it.” Ballinger v. Prelesnik, 709 F.3d

21

558, 562 (6th Cir. 2013); see Atkins v. Clarke, 642 F.3d 47, 49 (1st Cir. 2011) (rejecting

22

argument that a state court did not adjudicate claim on the merits unless petitioner was

23

afforded a “full and fair evidentiary hearing”); see also Donaldson v. Booker, 505

24

Fed.Appx. 488, 493 (6th Cir. 2012) (finding Pinholster applies in cases where “petitioner

25

requested an evidentiary hearing in state court and was thereby not at fault for failure to

26

develop the factual record in state court”); Taylor v. Simpson, No. 06-CV-181-JBC, 2012

27

WL 404929, at *3 (E.D.Ky. February 6, 2012) (“Notwithstanding Taylor’s argument that

28

Pinholster addressed only a fully developed claim, adjudicated on the merits in state
- 16 -

1

court, and decided in federal court under § 2254(d)(1) and that Pinholster did not concern

2

habeas litigation under § 2254(d)(2), he is not entitled to discovery on his Batson claim

3

under 2254(d)(2).”); Lewis v. Ayers, No. 02-13-KJM-GGH-DP, 2011 WL 2260784, at

4

*5–6 (E.D.Cal. June 7, 2011) (“Nor will an assertion—that because the state record was

5

incomplete, there was no adjudication on the merits—operate to avoid the [Pinholster]

6

holding. An adjudication on the merits is just that regardless of one’s view on the

7

completeness of the record on which the ruling was made.”).

8

In any event, Petitioner did have an opportunity to fully develop and present the

9

facts supporting his claim of ineffective assistance of counsel at sentencing, and the PCR

10

court ruled on the claim after holding an evidentiary hearing. See Wood v. Ryan, 693 F.3d

11

1104, 1122 (9th Cir. 2012) (finding petitioner not entitled to evidentiary hearing where

12

“the record details counsel’s performance” and because the ineffective assistance of

13

counsel claim was adjudicated on the merits in the PCR proceedings so review is limited

14

to the state court record).

15

Finally, even if Pinholster did not bar evidentiary development on Petitioner’s

16

claim of ineffective assistance of counsel at sentencing, Petitioner has not shown that he

17

was diligent in state court for purposes of § 2254(e)(2) in obtaining the additional facts he

18

now seeks to present.

19

Petitioner maintains that he was “diligent in developing the factual bases of the

20

claims for which he now seeks evidentiary development.” (Doc. 56 at 15.) He suggests

21

that the state court’s failure to hold an evidentiary hearing on all of his PCR claims

22

constituted “interference by the State” so that any failure to develop the facts supporting

23

his claims was the fault of the state court. (Id. at 16–17.) The record does not support this

24

argument.

25

Petitioner does not specify what evidence he was prevented from developing in

26

state court due to the scope of the PCR court’s evidentiary hearing. The hearing

27

addressed Petitioner’s allegations that trial counsel performed ineffectively at sentencing

28

by failing to “present substantial mitigation evidence,” including expert mental health
- 17 -

1

testimony. The state court granted Petitioner’s requests for the appointment of an

2

investigator, a mitigation specialist, a neuropsychologist, a pharmacologist, and other

3

experts. The mitigation specialist gathered records, interviewed family members, and

4

prepared a lengthy social history report. The PCR court did nothing to hinder, interfere

5

with, or thwart Petitioner’s efforts to obtain the information he now seeks to present in

6

federal court. Cf. Correll v. Stewart, 137 F.3d 1404, 1413 (9th Cir. 1998) (“Simply put,

7

the state cannot successfully oppose a petitioner’s request for a state court evidentiary

8

hearing, then argue in federal habeas proceedings that the petitioner should be faulted for

9

not succeeding.”); Libberton v. Ryan, 583 F.3d 1147, 1165 (9th Cir. 2009) (finding

10

petitioner diligent where the state court refused to fund mitigation investigation and

11

denied evidentiary hearing).

12

Petitioner had every opportunity in state court to obtain and present the

13

information he offers now. His failure to do so constitutes a lack of diligence. See Alley,

14

307 F.3d at 390–91 (finding petitioner was not entitled to evidentiary hearing on his

15

unexhausted claims of judicial bias, given his failure to pursue claims in state court

16

despite his awareness of alleged bias on part of trial judge and evidentiary hearing

17

conducted on bias issue in state court).

18

Petitioner does not argue that he can meet the exceptions to the (e)(2) diligence

19

requirement. Therefore, he is not entitled to expand the record or to an evidentiary

20

hearing.

21

Finally, Petitioner concedes that a number of his habeas claims were not presented

22

in state court. With respect to these claims, he argues that evidentiary development is

23

necessary to establish cause for their default under Martinez v. Ryan, 132 S. Ct. 1309

24

(2012). (Doc. 56 at 53.)

25

Pursuant to Martinez, a petitioner may establish cause for procedural default of a

26

claim of ineffective assistance of trial counsel by demonstrating that PCR counsel was

27

ineffective and the underlying ineffective assistance of trial counsel claim has some

28

merit. 132 S. Ct. at 1318; see Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012). The Ninth
- 18 -

1

Circuit has extended the holding in Martinez to apply to procedurally defaulted claims of

2

ineffective assistance of appellate counsel. Ha Van Nguyen v. Curry, 736 F.3d 1287,

3

1294–95 (9th Cir. 2013).

4

Of the claims Petitioner concedes were not presented in state court, 13 allege

5

ineffectiveness of trial and/or appellate counsel.7 Petitioner asserts that he “will

6

demonstrate at an evidentiary hearing that post-conviction counsel fell below the

7

standards of a minimally competent capital post-conviction attorney when she failed to

8

raise these meritorious claims.” (See, e.g., Doc. 38 at 110–11.) He does not specify,

9

however, what new facts would be relevant to a consideration of PCR counsel’s

10

effectiveness. The Court finds that an evidentiary hearing is not warranted.

11

The cause and prejudice analysis under Martinez is based on an assessment of the

12

defaulted ineffective assistance claims. In Petitioner’s case, none of these claims require

13

new evidence to evaluate the effectiveness of trial or appellate counsel.

14

For example, Petitioner alleges that trial counsel performed ineffectively in failing

15

to ensure that a complete trial record was created (Claim 6) and that appellate counsel

16

performed ineffectively by failing to raise the issue on appeal (Claim 7). Other claims

17

relate to counsel’s handling of evidentiary issues, including the medical examiner’s

18

testimony (Claims 12 and 13) and the admission of the ligature Petitioner used to strangle

19

Elizabeth (Claim 18). Petitioner also alleges appellate counsel performed ineffectively by

20

failing to raise a claim that his due process rights were violated when he was “forced” to

21

proceed to trial in the immediate aftermath of Ring (Claim 16); failing to challenge

22

multiple instances of prosecutorial misconduct (Claim 21); failing to raise a claim that the

23

trial court improperly instructed the jury about its sentencing options (Claims 24, 26);

24

failing to challenge the trial court’s exclusion of execution-impact evidence at sentencing

25

(Claim 28); failing to allege that the Arizona Supreme Court’s independent review of the

26

(F)(6) aggravating factor was flawed (Claim 30); failing to raise a claim alleging an Ex

27
7

28

Martinez does not apply to the remaining claims, Claims 11, 15, 17, 23, 25, 27,
29, 31, 34–50.
- 19 -

1

Post Facto violation based on Petitioner’s sentencing under Arizona’s post-Ring

2

sentencing scheme (Claim 32); and failing to challenge the (F)(6) aggravator (Claim 33).

3

The record is complete with respect to these ineffective assistance of trial and

4

appellate counsel claims. See Wood, 693 F.3d at 1122. Because there are no factual

5

disputes concerning the underlying defaulted claims, an evidentiary hearing to assess

6

PCR counsel’s performance would be “nothing more than a futile exercise.” Totten, 137

7

F.3d at 1176; see Beardslee v. Woodford, 358 F.3d 560, 585 (9th Cir. 2004) (explaining

8

that “an evidentiary hearing is not required if the claim presents a purely legal question

9

and there are no disputed facts”).

10
11
12

CONCLUSION
For the reasons set forth above, Petitioner is not entitled to evidentiary
development on his habeas claims. The Court will rule on the claims in a later order.

13

Accordingly,

14

IT IS ORDERED DENYING Petitioner’s motion for evidentiary development

15
16

(Doc. 56).
Dated this 9th day of September, 2015.

17
18

Honorable John J. Tuchi
United States District Judge

19
20
21
22
23
24
25
26
27
28
- 20 -