Boggs v. Ryan et al

Filing 67

ORDER granting in part and denying in part 48 Motion for Evidentiary Development as described herein. Expansion of the record is granted with respect to Exhibits 197. Boggs's other requests for evidentiary development are denied. Denying Claims 1, 2, 4 (in part), 7, 8, 12(A), 15 (in part), 17, 18, 22, 40, and 43 as procedurally defaulted and barred from federal review and denying Claims 22, 24, 26, 28, 30, and 40 as meritless. Signed by Judge G Murray Snow on 4/16/18. (DXD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Steve Alan Boggs, Petitioner, 10 11 12 v. No. CV-14-02165-PHX-GMS DEATH PENALTY CASE ORDER Charles L. Ryan, et al., Respondents. 13 14 15 Before the Court is Petitioner Steve Alan Boggs’s Motion for Evidentiary 16 17 18 19 20 21 22 23 24 25 26 27 28 Development. (Doc. 48.) Respondents filed a response in opposition to the motion and Boggs filed a reply. (Docs. 58, 61.) The motion is denied in part and granted in part, as set forth herein. I. BACKGROUND In 2002, Boggs and Christopher Hargrave shot three fast-food workers to death. In 2005, Boggs was found guilty of three counts of first-degree murder, among other counts, and sentenced to death. The following facts are taken from the opinion of the Arizona Supreme Court upholding the convictions and sentences. State v. Boggs, 218 Ariz. 325, 185 P.3d 111 (2008). On May 19, 2002, police officers responded to a 911 call from a fast-food restaurant in Mesa. The first officer to arrive found one of the restaurant’s employees, Beatriz Alvarado, lying on the ground outside the back door; she repeatedly asked for help but died from two gunshot wounds to her back. Inside the restaurant, officers found 1 the body of another employee, Fausto Jimenez, next to a telephone; Jimenez had been 2 shot three times in the back but managed to dial 911 shortly before dying from his 3 wounds. In the freezer was the body of a third employee, Kenneth Brown, who had died 4 from two gunshot wounds. Police found shell casings and bullets in the freezer. Two cash 5 registers were opened and contained only coins; a third register appeared as if someone 6 had tried to pry it open. Jimenez and Brown were missing their wallets. 7 8 The next night, Hargrave, a friend of Boggs’s who had recently been fired from the restaurant, tried to use Jimenez’s bank card at an ATM. 9 Two days after the murders, Boggs traded in a Taurus handgun at a pawnshop. 10 Police recovered the weapon and determined that it fired all of the shell casings and 11 bullet fragments found at the scene, including bullet fragments found in the victims’ 12 bodies. 13 During police interviews with Detective Donald Vogel, Boggs “confessed to 14 playing an active role in the robbery and admitted shooting at the victims.” Boggs, 218 15 Ariz. at 331, 185 P.3d at 117. He described the murders in detail, explaining that “the 16 victims were forced at gunpoint to lie down in the work area of the restaurant, ordered to 17 remove everything from their pockets, ordered to march through the cooler into the back 18 freezer with their hands interlaced on top of their heads, forced to kneel down, and then 19 shot in rapid succession.” Id. at 341, 185 P.3d at 127. Boggs also told police that after 20 leaving the victims shot in the freezer, he and Hargrave heard screaming, “at which point 21 he returned to the freezer and shot some more.” Id. 22 Boggs and Hargrave were involved in a white supremacist “militia” they called the 23 Imperial Royal Guard. They and their girlfriends were the only members. In a letter to a 24 Detective Vogel, written after his confession, Boggs explained that his motive for the 25 murders was racial rather than pecuniary. 26 Prior to trial, Boggs waived his right to counsel and represented himself. He 27 relinquished his right to self-representation after several days of jury selection, and his 28 advisory counsel took over his defense. Boggs moved to resume self-representation -2- 1 between the aggravation and penalty phases, but the court denied his request. The jury 2 found Boggs guilty of all charged crimes. 3 At sentencing, the jury found three aggravating factors for each of the murders: 4 expectation of pecuniary gain, under A.R.S. § 13–703(F)(5); murders committed in an 5 especially heinous, cruel or depraved manner, under § 13–703(F)(6); and a conviction for 6 one or more other homicides during the commission of the offense, under § 13– 7 703(F)(8). The defense presented mitigation evidence concerning Boggs’s troubled 8 childhood and mental health issues. At the close of the trial, the jury found Boggs’s 9 mitigation not sufficiently substantial to call for leniency and concluded that death was 10 the appropriate sentence for each murder. 11 The Arizona Supreme Court affirmed the convictions and sentences. Boggs, 218 12 Ariz. 325, 185 P.3d 111. After unsuccessfully pursuing post-conviction relief (“PCR”), 13 Boggs filed a petition for writ of habeas corpus in this Court. (Doc. 15.) Respondents 14 filed an answer and Boggs filed a reply. (Docs. 21, 26.) Boggs filed the pending motion 15 for evidentiary development on February 3, 2017. (Doc. 48.) 16 II. APPLICABLE LAW 17 A. 18 Federal habeas claims are analyzed under the framework of the Antiterrorism and 19 Effective Death Penalty Act (“AEDPA”). Under the AEDPA, a petitioner is not entitled 20 to habeas relief on any claim adjudicated on the merits in state court unless the state 21 court’s adjudication (1) resulted in a decision that was contrary to, or involved an 22 unreasonable application of, clearly established federal law or (2) resulted in a decision 23 that was based on an unreasonable determination of the facts in light of the evidence 24 presented in state court. 28 U.S.C. § 2254(d). AEDPA 25 The Supreme Court has emphasized that “an unreasonable application of federal 26 law is different from an incorrect application of federal law.” Williams (Terry) v. Taylor, 27 529 U.S. 362, 410 (2000). Under § 2254(d), “[a] state court’s determination that a claim 28 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ -3- 1 on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 2 (2011). 3 In Cullen v. Pinholster, 563 U.S. 170, 181 (2011), the Court reiterated that 4 “review under § 2254(d)(1) is limited to the record that was before the state court that 5 adjudicated the claim on the merits.” See Murray (Robert) v. Schriro, 745 F.3d 984, 6 998 (9th Cir. 2014) (“Along with the significant deference AEDPA requires us to afford 7 state courts’ decisions, AEDPA also restricts the scope of the evidence that we can rely 8 on in the normal course of discharging our responsibilities under § 2254(d)(1).”). 9 However, Pinholster does not bar evidentiary development where the court has 10 determined, based solely on the state court record, that the petitioner “has cleared the § 11 2254(d) hurdle.” Madison v. Commissioner, Alabama Dept. of Corrections, 761 F.3d 12 1240, 1249–50 (11th Cir. 2014); see Pinholster, 563 U.S. at 185; Henry v. Ryan, 720 13 F.3d 1073, 1093 n.15 (9th Cir. 2013) (explaining that Pinholster bars evidentiary hearing 14 unless petitioner satisfies § 2254(d)). 15 For claims not adjudicated on the merits in state court, federal review is generally 16 not available when the claims have been denied pursuant to an independent and adequate 17 state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In Arizona, there 18 are two avenues for petitioners to exhaust federal constitutional claims: direct appeal and 19 PCR proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR 20 proceedings and provides that a petitioner is precluded from relief on any claim that 21 could have been raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3). 22 For unexhausted and defaulted claims, “federal habeas review . . . is barred unless 23 the prisoner can demonstrate cause for the default and actual prejudice as a result of the 24 alleged violation of federal law, or demonstrate that failure to consider the claims will 25 result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Coleman 26 further held that ineffective assistance of counsel in PCR proceedings does not establish 27 cause for the procedural default of a claim. Id. 28 /// -4- 1 In Martinez v. Ryan, 566 U.S. 1 (2012), however, the Court established a “narrow 2 exception” to the rule announced in Coleman. Under Martinez, a petitioner may establish 3 cause for the procedural default of an ineffective assistance claim “by demonstrating two 4 things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should 5 have been raised, was ineffective under the standards of Strickland . . .’ and (2) ‘the 6 underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to 7 say that the prisoner must demonstrate that the claim has some merit.’” Cook v. Ryan, 8 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 14); see Clabourne v. 9 Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney v. 10 Ryan, 813 F.3d 798 (9th Cir. 2015). The Ninth Circuit has explained that “PCR counsel 11 would not be ineffective for failure to raise an ineffective assistance of counsel claim 12 with respect to trial counsel who was not constitutionally ineffective.” Sexton v. Cozner, 13 679 F.3d 1150, 1157 (9th Cir. 2012). 14 Martinez applies only to claims of ineffective assistance of trial counsel; it has not 15 been expanded to other types of claims. Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th 16 Cir. 2015) (explaining that the Ninth Circuit has “not allowed petitioners to substantially 17 expand the scope of Martinez beyond the circumstances present in Martinez”); Hunton v. 18 Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013) (denying petitioner’s argument that 19 Martinez permitted the resuscitation of a procedurally defaulted Brady claim, holding that 20 only the Supreme Court could expand the application of Martinez to other areas); see 21 Davila v. Davis, 137 S. Ct. 2058, 2062– 2063, 2065-66 (2017) (explaining that the 22 Martinez exception does not apply to claims of ineffective assistance of appellate 23 counsel). 24 B. 25 A habeas petitioner is not entitled to discovery “as a matter of ordinary course.” 26 Bracy v. Gramley, 520 U.S. 899, 904 (1997); see Campbell v. Blodgett, 982 F.2d 1356, 27 1358 (9th Cir. 1993). Rule 6 of the Rules Governing Section 2254 Cases provides that 28 “[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Evidentiary Development -5- 1 Rules of Civil Procedure and may limit the extent of discovery.” Rule 6(a), Rules 2 Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Whether a petitioner has established 3 “good cause” for discovery requires a habeas court to determine the essential elements of 4 the petitioner’s substantive claim and evaluate whether “specific allegations before the 5 court show reason to believe that the petitioner may, if the facts are fully developed, be 6 able to demonstrate that he is . . . entitled to relief.” Bracy, 520 U.S. at 908–09 (quoting 7 Harris v. Nelson, 394 U.S. 286, 300 (1969)) (internal quotation marks omitted). 8 An evidentiary hearing is authorized under Rule 8 of the Rules Governing § 9 2254 Cases. Pursuant to § 2254(e)(2), however, a federal court may not hold a hearing 10 unless it first determines that the petitioner exercised diligence in trying to develop the 11 factual basis of the claim in state court. See Williams (Michael) v. Taylor, 529 U.S. 420, 12 432 (2000). If the failure to develop a claim’s factual basis is attributable to the 13 petitioner, a federal court may hold an evidentiary hearing only if the claim relies on (1) 14 “a new rule of constitutional law, made retroactive to cases on collateral review by the 15 Supreme Court, that was previously unavailable” or (2) “a factual predicate that could not 16 have been previously discovered through the exercise of due diligence.” 28 U.S.C. § 17 2254(e)(2). In addition, “the facts underlying the claim [must] be sufficient to establish 18 by clear and convincing evidence that but for constitutional error, no reasonable fact 19 finder would have found the [petitioner] guilty of the underlying offense.” Id. 20 When the factual basis for a claim has not been fully developed in state court, a 21 district court first determines whether the petitioner was diligent in attempting to develop 22 the record. See Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999). The diligence 23 assessment requires a determination of whether a petitioner “made a reasonable attempt, 24 in light of the information available at the time, to investigate and pursue claims in state 25 court.” Williams (Michael), 529 U.S. at 435. For example, when there is information in 26 the record that would alert a reasonable attorney to the existence and importance of 27 certain evidence, the attorney “fails” to develop the factual record if he does not make 28 reasonable efforts to investigate and present the evidence to the state court. Id. at 438– -6- 1 39, 442. The Ninth Circuit has explained that “a petitioner who ‘knew of the existence of 2 [ ] information’ at the time of his state court proceedings, but did not present it until 3 federal habeas proceedings, ‘failed to develop the factual basis for his claim diligently.’” 4 Rhoades v. Henry, 598 F.3d 511, 517 (9th Cir. 2010) (quoting Cooper-Smith v. 5 Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005)). 6 Significantly, an evidentiary hearing is not required if the issues can be resolved 7 by reference to the state court record. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 8 1998) (“It is axiomatic that when issues can be resolved with reference to the state court 9 record, an evidentiary hearing becomes nothing more than a futile exercise.”); see Schriro 10 v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant’s factual 11 allegations or otherwise precludes habeas relief, a district court is not required to hold 12 an evidentiary hearing.”). Likewise, “an evidentiary hearing is not required if the claim 13 presents a purely legal question and there are no disputed facts.” Beardslee v. Woodford, 14 358 F.3d 560, 585 (9th Cir. 2004); see Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th 15 Cir. 1992). 16 Finally, under Rule 7 of the Rules Governing Section 2254 Cases, a federal habeas 17 court is authorized to expand the record to include additional material relevant to the 18 petition. The purpose of expansion of the record under Rule 7 “is to enable the judge to 19 dispose of some habeas petitions not dismissed on the pleadings, without the time and 20 expense required for an evidentiary hearing.” Advisory Committee Notes, Rule 7, 28 21 U.S.C. foll. § 2254; see also Blackledge v. Allison, 431 U.S. 63, 81–82 (1977); Downs v. 22 Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000) (explaining that the need for an 23 evidentiary hearing may be obviated by expansion of record); Griffey v. Lindsey, 345 24 F.3d 1058, 1067 (9th Cir. 2003) (stating that a hearing is not warranted if claims can “be 25 resolved by reference to the state court record and the documentary evidence”), vacated 26 on other grounds as moot, 349 F.3d 1157 (9th Cir. 2003). 27 Section 2254(e)(2) limits a petitioner’s ability to present new evidence through a 28 Rule 7 motion to the same extent that it limits the availability of an evidentiary hearing. -7- 1 See Cooper–Smith, 397 F.3d at 1241 (applying § 2254(e)(2) to expansion of the record 2 when intent is to bolster the merits of a claim with new evidence) (citing Holland v. 3 Jackson, 542 U.S. 649, 652–53 (2004) (per curiam)). Accordingly, when a petitioner 4 seeks to introduce new affidavits and other documents never presented in state court, he 5 must either demonstrate diligence in developing the factual basis in state court or satisfy 6 the requirements of § 2254(e)(2). 7 III. 8 9 ANALYSIS Boggs seeks evidentiary development on 19 of the 43 claims in his 450-page habeas petition. These include both exhausted and unexhausted claims. 10 A. 11 The parties agree that the following claims for which Boggs seeks evidentiary 12 development are procedurally defaulted: 1, 4 (in part), 7, 8, 15 (in part), 17, 18, 22, 40, 13 and 43. Boggs contends their default is excused under Martinez by the ineffective 14 assistance of appellate or PCR counsel. The Court disagrees. Unexhausted Claims 15 In Claim 1, Boggs alleges that he was tried and sentenced while legally 16 incompetent and that his due process rights were violated when he was found competent 17 to waive representation. (Doc. 15 at 42.) Claim 4 alleges in part that Boggs’s statements 18 to Detective Vogel were inadmissible because Boggs was not competent to waive his 19 right to counsel or his privilege against self-incrimination. (Id. at 80.) In Claim 7, Boggs 20 alleges that the trial court violated his rights by failing to maintain a complete record of 21 the trial. (Id. at 138.) In Claim 8, Boggs alleges that his constitutional rights were violated 22 when he was ordered to wear a stun belt and leg restraint during his trial. (Id. at 149.) In 23 Claim 15, Boggs alleges in part that his confrontation clause rights were violated by the 24 introduction of rebuttal evidence during the penalty phase of his trial. (Id. at 224.) In 25 Claim 17, Boggs alleges that the prosecutor committed misconduct when he argued that 26 mitigation must have a causal nexus to the crime and presented evidence of Boggs’s 27 militia involvement. (Id. at 294.) In Claim 22, Boggs alleges that his execution would be 28 unconstitutional because he is mentally impaired. (Id. at 339.) In Claim 40, Boggs alleges -8- 1 that his constitutional rights were violated by the death-qualification of his jury. (Id. at 2 422.) Finally, in Claim 43, Boggs alleges cumulative prejudicial errors at his trial. (Id. at 3 437.) 4 Boggs did not present these claims on direct appeal. (See Doc. 21-1, Ex. A.) 5 Therefore, as Boggs concedes, the claims are procedurally defaulted. Boggs argues, 6 however, that the ineffective assistance of appellate and PCR counsel provide cause for 7 the default and establish prejudice. These arguments fail. 8 First, before ineffective assistance of appellate counsel may be utilized as cause to 9 excuse a procedural default, the particular ineffective assistance allegation must first be 10 exhausted before the state courts as an independent claim. See Edwards v. Carpenter, 529 11 U.S. 446, 453 (2000) (“an ineffective-assistance-of-counsel claim asserted as cause for 12 the procedural default of another claim can itself be procedurally defaulted”); Murray v. 13 Carrier, 477 U.S. 478, 489–90 (1986); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 14 1988). During the PCR proceedings, Boggs did not allege ineffective assistance of 15 appellate counsel based on counsel’s failure to raise these claims on appeal. (See ROA- 16 PCR 54.)1 Therefore, ineffective assistance of appellate counsel cannot constitute cause 17 for their default. Boggs does not attempt to demonstrate that a fundamental miscarriage 18 of justice will occur if the claims are not resolved on the merits. 19 Next, the alleged ineffectiveness of PCR counsel does not excuse the default under 20 Martinez, which, as described above, applies only to defaulted claims of ineffective 21 assistance of trial counsel. Unlike allegations of ineffective assistance of trial counsel, 22 these claims could have been raised on direct appeal; therefore, they are not subject to the 23 “limited qualification to Coleman” established in Martinez, 566 U.S. at 15. Boggs asserts 24 that the equitable principles of Martinez should apply to other types of claims, but cites 25 no authority for that argument, and the case law holds the opposite. See Pizzuto, 783 F.3d 26 27 1 28 “ROA-PCR” refers to the record on appeal from post-conviction proceedings prepared for Boggs's petition for review to the Arizona Supreme Court (Case No. CR-140074-PC). -9- 1 at 1177; Hunton, 732 F.3d at 1126–27. Therefore, these claims remain procedurally 2 barred. 3 In addition, Claims 22 and 40 are clearly without merit. In Claim 22, Boggs 4 alleges that he suffers from “serious mental illness” and his execution would violate the 5 Eighth and Fourteenth Amendments. (Doc. 15 at 339.) In Ford v. Wainwright, 477 U.S. 6 399, 409–10 (1986), the Supreme Court held that it is a violation of the Eighth 7 Amendment to execute someone who cannot comprehend that his execution is based on a 8 conviction for murder. Boggs, however, does not contend that he is incompetent to be 9 executed under Ford, only that he has “serious mental illness.” In any event, a 10 determination of incompetence cannot be made until an execution warrant is issued 11 making the petitioner’s execution imminent. See Martinez-Villareal v. Stewart, 118 F.3d 12 628, 630 (9th Cir. 1997) (citing Herrera v. Collins, 506 U.S. 390, 406 (1993)). 13 In Claim 40, Boggs alleges that his constitutional rights were violated by the 14 death-qualification of his jury. (Doc. 15 at 422.) Clearly established federal law holds that 15 the death-qualification process in a capital case does not violate a defendant’s right to a 16 fair and impartial jury. See Lockhart v. McCree, 476 U.S. 162, 178 (1986); Wainwright v. 17 Witt, 469 U.S. 412, 424 (1985); see also Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir. 18 1996) (finding death qualification of Arizona jurors not inappropriate). 19 Evidentiary development is denied on these unexhausted claims. 20 B. 21 Boggs seeks discovery and expansion of the record in support of Claim 6, alleging 22 that the pretrial seizure of materials from his jail cell impeded his ability to prepare for 23 trial and consult with advisory counsel. (Doc. 48 at 32–34; see Doc. 15 at 117.) The 24 Arizona Supreme Court denied this claim on direct appeal. Boggs, 218 Ariz. at 336–37, 25 185 P.3d at 122–23. Under Pinholster, 563 U.S. at 161, Boggs is not entitled to 26 evidentiary development. Exhausted Claims 27 Boggs also seeks discovery and expansion of the record for a series of claims 28 challenging the death penalty in general and elements of Arizona’s death penalty scheme - 10 - 1 in particular. The Arizona Supreme Court denied these claims on direct appeal. Boggs, 2 218 Ariz. at 344–45, 325, 185 P.3d at 130–31. 3 Boggs alleges that the death penalty constitutes cruel and unusual punishment, 4 Claim 24, and serves no purpose beyond that served by a life sentence, Claim 30. (Doc. 5 15 at 389, 404.) In Claim 26, Boggs alleges that the “especially heinous, cruel or 6 depraved” aggravating circumstance, A.R.S. § 13-703(F)(6), is unconstitutionally vague 7 and overbroad. (Id. at 394.) In Claim 28, Boggs alleges that Arizona’s death-penalty 8 statute insufficiently channels the discretion of the sentencing authority. (Id. at 400.) The 9 Arizona Supreme Court’s rejection of these claims was neither contrary to nor an 10 unreasonable application of clearly established federal law. 11 First, there is no clearly established federal law supporting the claim that 12 the death penalty is categorically cruel and unusual punishment or that it serves no 13 purpose. See Gregg v. Georgia, 428 U.S. 153, 187 (1976); Hall v. Florida, 134 S. Ct. 14 1986, 1992–93 (2014). 15 Next, the United States Supreme Court has upheld the (F)(6) aggravating factor 16 against allegations that it is vague and overbroad, rejecting a claim that Arizona has not 17 construed it in a “constitutionally narrow manner.” See Lewis v. Jeffers, 497 U.S. 764, 18 774–77(1990); Walton v. Arizona, 497 U.S. 639, 649–56 (1990), overruled on other 19 grounds by Ring v. Arizona, 536 U.S. 584, 556 (2002). Boggs’s challenge to the factor is 20 without merit. 21 Finally, rulings of both the Ninth Circuit and the United States Supreme Court 22 have upheld Arizona’s death-penalty statute against allegations that particular 23 aggravating factors do not adequately narrow the sentencer’s discretion. See Jeffers, 497 24 U.S. at 774–77 (1990); Walton, 497 U.S. at 649–56; Woratzeck v. Stewart, 97 F.3d 329, 25 335 (9th Cir. 1996). The Ninth Circuit has also explicitly rejected the argument that 26 Arizona’s death penalty statute is unconstitutional because it “does not properly narrow 27 the class of death penalty recipients.” Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 28 1998). - 11 - 1 2 Evidentiary development is denied as to these exhausted claims. Claims 24, 26, 28, and 30 are denied as meritless. 3 C. 4 Claims of ineffective assistance of counsel are governed by the principles set forth 5 in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a 6 petitioner must show that counsel’s representation fell below an objective standard of 7 reasonableness and that the deficiency prejudiced the defense. Id. at 687–88. Ineffective Assistance of Counsel Claims 8 The inquiry under Strickland is highly deferential, and “every effort [must] be 9 made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 10 counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at 11 the time.” 466 U.S. at 689; see Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam); 12 Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam); Cox v. Ayers, 613 F.3d 883, 893 (9th 13 Cir. 2010). To satisfy Strickland’s first prong, a defendant must overcome “the 14 presumption that, under the circumstances, the challenged action might be considered 15 sound trial strategy.” Id. 16 With respect to Strickland’s second prong, a defendant must affirmatively prove 17 prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s 18 unprofessional errors, the result of the proceeding would have been different. A 19 reasonable probability is a probability sufficient to undermine confidence in the 20 outcome.” Id. at 694. 21 Claim 2: 22 Boggs alleges that trial counsel were ineffective for failing to challenge his 23 competence to stand trial and waive counsel. (Doc. 15 at 60.) Boggs did not present the 24 claim in state court. (See ROA-PCR 54.) He argues that its default is excused under 25 Martinez. He seeks discovery, expansion of the record, and an evidentiary hearing. (Doc. 26 22 at 48.) 27 Boggs seeks to depose Dr. P.K. Drapeu, who provided psychiatric treatment to 28 Boggs through Maricopa County Correctional Health Services (CHS) in 2002. (Doc. 48 - 12 - 1 at 23.) He seeks to expand the record to include, among other materials, documents from 2 PCR counsel, notes from trial counsel Herman Alcantar, and the disciplinary records of 3 co-counsel Nathaniel Carr; a report by Cynthia Boyd, an expert retained by PCR counsel; 4 billing records of Randy Walker, Boggs’s trial mitigation specialist, and Jeff Bachtle, 5 Boggs’s trial investigator; declarations from appellate counsel, from Drs. George DeLong 6 and Richard Lanyon, and from Peter Simi, a sociologist and expert on right-wing militias; 7 declarations from family members and school employees; Boggs’s medical records, 8 school records, and juvenile records; police reports; jail records; and reports by Drs. Ken 9 Benedict and Julian Davies, experts retained during these habeas proceedings. (Id. at 23– 10 30.) Finally, Boggs requests an evidentiary hearing to present testimony from Alcantar, 11 Carr, Walker, Drs. Benedict, Davies, and Simi, Boggs’s father and other family members, 12 and a number of school employees. (Id. at 30.) 13 The Court denies these requests. 14 1. 15 Boggs was initially represented by Maria Schaffer and James Logan with the 16 Office of the Legal Advocate. On August 20, 2002, Schaffer moved for a competency 17 evaluation under Rule 11 of the Arizona Rules of Criminal Procedure. (ROA 78.)2 The 18 motion was supported by the report of Dr. Lanyon, a forensic psychologist, who 19 conducted an evaluation of Boggs on August 22, 2002. (ROA 78, Lanyon Report at 1.) 20 Dr. Lanyon concluded that: 21 Additional facts 23 due to Mr. Boggs’[s] chronic mental disorder, although he has a general understanding of courtroom procedure, he currently lacks the capacity to assist his lawyer in preparing a defense[] because he is simply too depressed to do so, and his auditory hallucinations keep interfering. He also appears not to care about the outcome one way or the other. 24 (Id.) Dr. Lanyon recommended a full evaluation for competency to stand trial. (Id.) 22 25 26 The court granted the motion and appointed another psychologist, Dr. DeLong, to conduct the evaluation. (ROA 80.) Dr. DeLong concluded that Boggs was competent to 27 28 2 “ROA” refers to the record on appeal from trial and sentencing prepared for Boggs’s direct appeal to the Arizona Supreme Court (Case No. CR–05–0174–AP). - 13 - 1 stand trial. (Doc. 21-10, Ex. L.) He noted that Boggs had been diagnosed with 2 Adjustment Disorder and Antisocial Personality Disorder but that neither diagnosis 3 presented “any impediment to his participation in his defense or cooperating with 4 counsel.” (Id. at 8.) Dr. DeLong explained that the depression noted by Dr. Lanyon was a 5 normal reaction to incarceration and that “[i]t is a time-limiting disorder that Mr. Boggs 6 appears to have resolved in the time interval since he met with Dr. Lanyon.” (Id.) 7 Schaffer requested that the court appoint a third doctor to evaluate Boggs. (RT 8 11/18/05 at 4.)3 The court declined, finding “no need for a further evaluation of the 9 defendant.” (Id.) Citing Dr. DeLong’s report, the court explained that “the problems that 10 Dr. Lanyan [sic] alluded to that would inhibit the defendant’s ability to assist counsel [— 11 ] which is the basis for his opinion—have gotten better over time. . . . [I]t doesn’t appear 12 that there will be a significant problem or significant enough to find the defendant 13 incompetent.” (Id. at 5.) 14 In April 2003, Schaffer and Logan withdrew as Boggs’s counsel and were 15 replaced by Alcantar as lead counsel and Carr as co-counsel. (ROA 109, 115.) On April 16 2, 2004, Boggs moved to waive counsel and represent himself on the kidnaping charges. 17 (ROA 144.) The court denied the motion. (RT 4/2/04 at 3.) Boggs subsequently moved to 18 represent himself on all charges.4 (RT 6/18/04 at 6–7.) 19 The court deferred ruling on the motion until it was provided with additional 20 mental health evaluations. (RT 7/16/04 at 9–12.) On August 13, 2004, Boggs’s counsel 21 submitted reports from Dr. Lanyon, Dr. Ester Ruiz, and Dr. Mark Walter. (RT 8/13/04 at 22 4.) Counsel also provided the court with a report by neurologist Dr. Gregory Hunter, but 23 stated he did not intend to use it because it did not “show any type of neurological defect, 24 or something I could use on either the use of competency or any defenses.” (Id. at 3–4.) 25 Dr. Lanyon reviewed Boggs’s voluminous medical and juvenile records, including 26 several mental health evaluations, dating back to age 10. (ROA 327, Lanyon Report at 1– 27 3 RT refers to the court reporter’s transcript from Boggs’s state court proceedings. 4 This motion is absent from the state court record. 28 - 14 - 1 13.) He performed several psychological tests and interviewed Boggs’s father, 2 grandfather, and aunt. (Id. at 2.) Dr. Lanyon opined that Boggs suffered from mild diffuse 3 brain damage, somatization disorder, and bipolar disorder with the possibility of 4 delusional disorder. He noted “strong delusional themes running through [Boggs’s] 5 activities in high school, his thought processes surrounding the events of June 2002, and 6 his current thought processes.” (Id. at 22.) 7 Dr. Ruiz prepared a “trauma assessment report.” She recounted the various 8 traumas Boggs reportedly experienced while growing up, including physical and 9 emotional abuse by his mother, the deaths of his siblings, and several instances of sexual 10 assault. (ROA 327, Ruiz Report at 1–2.) Dr. Ruiz’s diagnoses included post-traumatic 11 stress disorder (PTSD) with dissociative features, bipolar mood disorder, ADHD, 12 cognitive disorder not otherwise specified (NOS), oppositional defiant disorder, major 13 depression, borderline personality disorder, and abandonment issues. (Id. at 6.) 14 Dr. Walter performed a neuropsychological examination. (Doc. 25-4, Ex. EE.) He 15 found Boggs to be of average intelligence, low average achievement ability, average 16 psychometric attention, and average memory functioning. (Id. at 4.) He noted that 17 the impairment in Boggs’s adaptive executive functioning was “consistent with his 18 history of attention deficit and indicates the presence of brain damage, specifically in 19 frontal lobe functioning.” (Id. at 9.) He opined that these symptoms could be caused by 20 uncontrolled seizures; they “could also stem from an FAE (Fetal Alcohol Effect) 21 rather than full FAS [Fetal Alcohol Syndrome].” (Id.) Dr. Walter’s diagnoses 22 included Cognitive Disorder NOS and Attention Deficit/Hyperactivity Disorder. (Id.) 23 He also concluded that Boggs has a seizure disorder and “reports psychotic 24 symptoms.” (Id.) 25 On September 3, 2004, after reviewing these reports, the court granted Boggs’s 26 request to waive counsel and represent himself. (RT 9/3/04 at 5.) The court found that it 27 did “not appear that the limitations that the defendant has either neurologically or 28 - 15 - 1 psychologically are sufficient to indicate that he’s not competent to proceed to trial . . . 2 and not competent to waive his right to counsel.” (Id.) 3 Boggs’s trial began on April 5, 2005. After four days of voir dire, he relinquished 4 his pro se status and Alcantar and Carr resumed their representation. (RT 4/11/05 at 5–6.) 5 Boggs argues that counsel’s performance was ineffective because the Lanyon, 6 Ruiz, and Walter reports do not directly address Boggs’s competence to waive counsel. 7 However, in addition to these examinations and the original Rule 11 exams performed by 8 Drs. Lanyon and DeLong, Boggs’s competence was evaluated twice during trial at 9 counsel’s request. Near the close of the State’s case, when confronting the issue of 10 whether Boggs would testify, counsel Alcantar asked for “at least, a Rule 11 11 prescreening.” (RT 4/25/05 at 168.) The court granted the request. (Id.) Dr. John Toma 12 performed the evaluation and found Boggs “competent to proceed”: I found his thinking rational. I didn’t see any evidence of a mental illness or defect that would prevent him from making rational decisions. He has an adequate legal foundation or understanding of the proceedings that are against him. 13 14 15 16 (RT 4/26/05 at 4.) 17 Dr. Toma concluded that there were “no active mental health issues” and that 18 Boggs was “competent to assist counsel and waive any constitutional rights.” (Id.) 19 Dr. Toma also found that Boggs was capable of “weighing the consequences” and 20 making a “rational decision” about whether to testify. (Id.) 21 A week later, prior to the mitigation phase of sentencing, Alcantar again requested 22 an evaluation, stating there was a “reasonable basis” to question Boggs’s competence. 23 (RT 5/4/05 at 55.) Alcantar objected to the evaluation being performed by the State’s 24 expert, agreeing with the court that Dr. Toma would be the appropriate expert. (Id. at 54– 25 55.) Dr. Toma performed the evaluation, and several days later the court and the parties 26 discussed his report. (RT 5/9/05 at 4.) Neither the State nor the defense had any questions 27 about Boggs’s competence, and the court agreed he was competent: 28 /// - 16 - 1 It seems to me, based on Dr. Tomas’ [sic] report, based on the other reports that I have reviewed in this case, based on my own observations of Mr. Boggs, he appears to be competent, able to assist counsel proceeding in the Court. 2 3 4 (Id.) 5 Drs. Lanyon and Ruiz testified on Boggs’s behalf at sentencing. (RT 5/10/05.) 6 Dr. Eugene Almer, a psychiatrist, evaluated Boggs and testified for the State in rebuttal. 7 (RT 5/11/05.) Dr. Almer diagnosed Boggs with depressive disorder NOS, currently in 8 remission, and borderline, narcissistic, and antisocial personality types. (ROA 327, Almer 9 Report at 12.) He did not find evidence of fetal alcohol syndrome, brain damage, 10 schizophrenia, thinking disorder, or bipolar disorder. (Id. at 14.) 11 2. 12 Boggs is not entitled to evidentiary development on this claim. First, the state 13 court record contains sufficient evidence to evaluate trial counsel’s performance, and 14 there are no disputed factual questions about counsel’s handling of this issue. See 15 Landrigan, 550 U.S. at 474; Totten, 137 F.3d at 1176; Beardslee, 358 F.3d at 585. 16 Second, PCR counsel did not perform ineffectively by failing to raise the claim in state 17 court because the underlying ineffective assistance of counsel claim is without merit. See 18 Sexton, 679 F.3d at 1157. Analysis 19 A criminal defendant has a Sixth Amendment right to waive counsel and conduct 20 his own defense. Faretta v. California, 422 U.S. 806, 819 (1975). However, he may not 21 waive his right to counsel unless he does so “competently and intelligently.” Godinez v. 22 Moran, 509 U.S. 389, 396 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 468 (1938)). 23 The standard for determining competency to waive counsel is the same as the standard 24 for competency to be tried. Id. at 399. It requires that a defendant have (1) “‘a rational as 25 well as factual understanding of the proceedings against him,’ and (2) ‘sufficient present 26 ability to consult with his lawyer with a reasonable degree of rational understanding.’” 27 Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011) (quoting Dusky v. United States, 362 28 U.S. 402, 402 (1960) (per curiam)). Whether a defendant is capable of understanding the - 17 - 1 proceedings and assisting counsel is dependent upon evidence of the defendant’s 2 irrational behavior, his demeanor in court, and any prior medical opinions on his 3 competence. Drope v. Missouri, 420 U.S. 162, 180 (1975). 4 “A claim that counsel was deficient for failing to move for a competency hearing 5 will succeed only when there are sufficient indicia of incompetence to give objectively 6 reasonable counsel reason to doubt defendant’s competency, and there is a reasonable 7 probability that the defendant would have been found incompetent to stand trial had the 8 issue been raised and fully considered.” Hibbler v. Benedetti, 693 F.3d 1140, 1149–50 9 (9th Cir. 2012) (quotations omitted). Boggs can make neither showing. 10 As detailed above, trial counsel did not fail to raise the issue of Boggs’s 11 competence to stand trial and waive counsel, and on four occasions, including twice 12 before Boggs was allowed to waive his right to counsel, the trial court found Boggs 13 competent. Under these circumstances it cannot be said that there was any probability 14 Boggs would have been found incompetent if the issue had been raised and fully 15 considered. See id. 16 Boggs argues that there were many “red flags” calling his competence into 17 question, including his “delusional” focus on the militia issue. Counsel did not ignore 18 these concerns, however (see RT 6/18/04 at 7–10); nor did the experts who evaluated 19 Boggs’s competence and whose reports were provided to the trial court (see ROA 327, 20 Lanyon report at 22). 21 Moreover, Boggs’s reported mental health problems were not in themselves 22 sufficient to show that he was incompetent to waive counsel. See United States v. Garza, 23 751 F.3d 1130, 1135–37 (9th Cir. 2014) (finding no need for competency hearing where 24 defendant was diagnosed with anxiety and dementia but his behavior was not erratic and 25 there was no indication that his conditions resulted in a failure to understand the 26 proceedings or assist in his own defense); Hoffman v. Arave, 455 F.3d 926, 938 (9th Cir. 27 2006) (“[W]e have held that those with mental deficiencies are not necessarily 28 incompetent to stand trial.”), vacated on other grounds by Arave v. Hoffman, 552 U.S. - 18 - 1 117, 117–19 (2008) (per curiam); Boyde v. Brown, 404 F.3d 1159, 1166–67 (9th Cir. 2 2005) (finding inmate’s “major depression” and “paranoid delusions” did not raise a 3 doubt regarding his competence to stand trial). Boggs did not behave erratically in court 4 (see RT 5/9/05 at 4) and there was no expert consensus that any condition he may have 5 suffered from impaired his ability to understand the proceedings or assist in his defense. 6 See Garza, 751 F.3d at 1135–36. 7 PCR counsel, faced with this record, did not perform ineffectively by failing to 8 challenge trial counsel’s performance with respect to Boggs’s competence to stand trial 9 and waive counsel. The evidence of Boggs’s incompetence was, at best, inconclusive; 10 trial counsel did seek and obtain evaluations of Boggs’s competency; and Boggs 11 relinquished his pro se status and was represented by counsel throughout his trial and 12 sentencing. In addition, at the request of PCR counsel, Dr. Cynthia Boyd, a forensic 13 neuropsychologist, evaluated Boggs in August of 2011 and determined that “his cognitive 14 abilities appeared grossly intact and without evidence of brain dysfunction”; “he is not 15 suffering from a major mental disorder” such as schizophrenia or bipolar disorder; and 16 there was “no neurological impairment.” (Doc. 52-1, Ex. 59 at 11–13.) Again, this 17 information offers no support for the proposition that Boggs was incompetent to be tried 18 or to waive counsel. 19 The two most recent evaluations shed no light on Boggs’s competence to stand 20 trial and waive counsel in 2005. In his 2017 report, Dr. Benedict notes the “staggering 21 array of diagnostic impressions rendered by evaluators over the years.” (Doc. 51-9, Ex. 22 53 at 23.) He opines that Boggs suffers from “complex traumatic stress syndrome” and 23 had Depressive Disorder, Not Otherwise Specified in 2005, shortly before his trial. (Id. at 24 28–29.) 25 Neurobehavioral Disorder/Alcohol Exposed, a Fetal Alcohol Spectrum Disorder 26 (FASD).” (Doc. 51-9, Ex. 54 at 31.) Dr. Davies, in her 2017 report, concluded that Boggs has 27 Boggs has also submitted a declaration from Dr. DeLong, dated December 2016. 28 (Doc. 52, Ex. 55.) Dr. DeLong now states that if he had been presented with Boggs’s - 19 - 1 “previous psychiatric treatment records, psychoeducational records, and juvenile court 2 records,” he would have provided additional comments to his report finding Boggs 3 competent. (Id. at 3.) Specifically, he would have “discussed the possibility that 4 Mr. Boggs had a severe mental illness that could compromise his continuing ability to 5 assist counsel productively and to act in his own best interest at trial.” (Id.) Dr. DeLong’s 6 statements, while they may qualify his earlier findings, do not demonstrate a reasonable 7 probability that Boggs would have been found incompetent to be tried or waive counsel. 8 Hibbler, 693 F.3d at 1149–50. 9 10 Because PCR counsel’s performance was not ineffective, Claim 2 remains procedurally defaulted and barred from federal review. Sexton, 679 F.3d at 1157. 11 Claim 12: 12 Claim 12 consists of nine allegations of ineffective assistance of counsel at the 13 guilt phase of trial. (Doc. 15 at 175–211.) Boggs seeks expansion of the record and an 14 evidentiary hearing in support of subparts (A) and (B). (Doc. 48 at 38–40; see Doc. 61 at 15 34.) In Claim 12(A), Boggs alleges that trial counsel failed to file numerous motions and 16 make accompanying objections. (Doc. 15 at 176.) In Claim 12(B), he alleges that counsel 17 failed to adequately object to or rebut the State’s Rule 404(b) evidence concerning 18 Boggs’s militia involvement and white supremacist views. (Id. at 183.) 19 Boggs seeks to expand the record to include the documents described in Claim 20 2 concerning trial and PCR counsel; declarations from William Tobin, an expert in 21 firearms/toolmarks examination, Dr. Simi, and Boggs’ stepbrother Nickolas Tampone; 22 and Imperial Royal Guard documents. Boggs further seeks an evidentiary hearing at 23 which Tobin, Simi, Tampone, trial counsel, and others would testify. 24 Respondents contend that because Claims 12(A) and 12(B) were rejected on the 25 merits by the PCR court, Pinholster limits this Court’s review to the record that was 26 before the state court. (Doc. 58 at 30.) Boggs, citing Dickens v. Ryan, 740 F.3d 1302 (9th 27 Cir. 2014), asserts that the “additional evidence [he] now seeks to present places the 28 claims in a ‘substantially improved evidentiary posture.’” (Doc. 61 at 34.) Therefore, he - 20 - 1 argues, the claims are procedurally defaulted and subject to analysis under Martinez, 2 which allows the consideration of new evidence. (Id. at 35.) 3 Claim 12(A) 4 Boggs contends that Tobin’s report, dated January 15, 2017, supports a claim that 5 trial counsel were ineffective for failing to challenge the State’s ballistics evidence. (Doc. 6 48 at 38–39; see Doc. 61 at 34.) This is not an allegation Boggs raised in state court. It is 7 not, in fact, a claim Boggs raised in his habeas petition, which cites only counsel’s failure 8 “to mount any challenge to the aggravating factors, the death penalty, the State’s attempt 9 to get a confidential expert report, and other ripe legal issues.” (Doc. 15 at 181.) 10 Martinez does not excuse the default of this unexhausted claim. PCR counsel did 11 not perform ineffectively by failing to allege that trial counsel performed ineffectively 12 with respect to the ballistics evidence. 13 At trial, criminalist Patrick Chavez testified that he test-fired Boggs’s Taurus and 14 compared the cartridges with the casings found in the restaurant and the damaged 15 projectiles taken from the victims’ bodies. (See RT 4/13/05 at 110–59.) Chavez 16 “positively identified” the test-fired cartridges as having been fired from the Taurus, 17 stating he was “absolutely certain” and had “no doubt.” (Id. at 133, 136–37, 139, 144–45, 18 148–49, 158–59.) 19 In his report, Tobin asserts that “[t]he forensic practice of firearms/toolmarks 20 identification lacks the rigor of science and should not be represented to a finder of fact 21 as a science” and therefore “forensic examiners should not be permitted to render 22 opinions of individualization, unfounded expressions of certainty of any kind . . . or other 23 conclusions implying an aura of precision generally associated with scientific endeavor.” 24 (Doc. 52-1, Ex. 58.) According to Tobin, “The strongest opinion that is scientifically and 25 forensically defensible is that, in the examiner’s opinion, a specific firearm could not be 26 eliminated as the firing platform for the bullet(s) or cartridge case(s) examined.” (Id.) 27 In his motion for evidentiary development, Boggs alleges that if trial counsel had 28 “developed and presented this evidence, which was available at the time of trial . . . , it is - 21 - 1 probable that Chavez’s testimony would have been excluded or that his credibility before 2 the jury would have been undermined, thereby weakening the link between Boggs and 3 the crime.” (Doc. 48 at 39.) This speculation is insufficient to establish that Boggs was 4 prejudiced by trial counsel’s performance. Boggs confessed to his involvement in the 5 shootings and the gun he pawned was, at a minimum, consistent with the gun that fired 6 the bullets that killed the three victims. Accordingly, PCR counsel’s performance was not 7 ineffective because there was no reasonable probability of a different outcome in the PCR 8 proceedings if counsel had raised the underlying ineffective assistance claim. Sexton, 679 9 F.3d at 1157. 10 11 Claim 12(A) is procedurally defaulted and barred from federal review. Evidentiary development is denied. 12 Claim 12(B) 13 The PCR court rejected Boggs’s claim that trial counsel performed ineffectively 14 by failing to object to and rebut evidence of his involvement in a militia. (ROA-PCR 64 15 at 5; see ROA-PCR 54 at 11–12.) Boggs contends that new evidence, principally a 16 declaration by a sociologist “explaining the mostly imagined nature of Boggs’s militia 17 participation,” fundamentally alters the claim he raised in state court, rendering it 18 unexhausted and subject to analysis under Martinez. (Doc. 61 at 34.) 19 A claim has not been fairly presented in state court if new evidence fundamentally 20 alters the legal claim already considered by the state court or places the case in a 21 significantly different and stronger evidentiary posture than it was when the state court 22 considered it. See Dickens, 740 F.3d at 1318–19 (citing, inter alia, Vasquez v. Hillary, 23 474 U.S. 254, 260 (1986); Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988); Nevius v. 24 Sumner, 852 F.2d 463, 470 (9th Cir. 1988)). 25 In his declaration, dated January 11, 2017, Dr. Simi details the risk factors that 26 cause young people to join extremist groups and notes the presence of those factors, 27 including trauma, victimization, and social isolation, in Boggs’s life. (Doc. 52-1, Ex. 57.) 28 - 22 - 1 The report also minimizes the extent of Boggs’s “extremist involvement,” characterizing 2 much of it as delusional. (Id.) 3 This information does not “fundamentally alter” the claim raised by PCR counsel, 4 “or place the case in a significantly different and stronger evidentiary posture.” Dickens, 5 740 F.3d at 1318. Dr. Simi’s declaration does not contradict the evidence already 6 considered by the state court about the size of the militia or its racial motivation. 7 See Aiken, 841 F.2d at 883–84 & n.3 (explaining that new evidence consisting of decibel 8 level studies of tape of petitioner’s confession, which conflicted with evidence state court 9 had considered, substantially improved evidentiary posture of claim). While the new 10 evidence may cast light on the origins of Boggs’s militia involvement, it does nothing to 11 affect the admissibility of the evidence or undermine the evidence of his guilt. 12 13 Because the claim is not fundamentally altered, evidentiary development remains barred under Pinholster. 563 U.S. at 181. 14 Claim 16: 15 Boggs alleges that trial counsel performed ineffectively at sentencing. (Doc. 15 at 16 239.) Claim 16 consists of nine separate claims, some consisting of further subclaims. 17 Some of these claims are exhausted; some were never presented in state court. Boggs 18 seeks discovery, expansion of the record, and an evidentiary hearing in support of these 19 allegations. (Doc. 48 at 44–51.) 20 1. 21 Counsel presented three witnesses to testify on Boggs’s behalf in the mitigation 22 phase of sentencing. The first was his aunt, Rose Nelson. She testified that her sister, 23 Boggs’s mother, was mentally retarded. (RT 5/10/05 at 10.) Boggs had little contact with 24 his father after age five. (Id. at 20.) Additional facts 25 Boggs was the oldest of three children. His sister died of an epileptic seizure and a 26 few months later his brother committed suicide at age 12 by hanging himself. (Id. at 16– 27 17.) 28 /// - 23 - 1 Boggs was born with a cleft palate, requiring surgery and prolonged 2 hospitalization. (Id. at 18.) He was fed through a tube and was unable to gain weight. (Id. 3 at 19.) He also suffered ear infections, which necessitated the insertion of tubes in both 4 ears. (Id. at 21.) 5 Boggs had emotional problems. He was hyperactive and suffered from ADHD. 6 (Id. at 22.) He had problems in school and was unable to focus. (Id.) He engaged in 7 destructive behavior and ran away from home and school. (Id. at 25.) 8 Due to her disability, Boggs’s mother didn’t know how to parent and was “very 9 hard on him.” (Id. at 23.) She practiced “extreme discipline,” forcing Boggs to sit in the 10 corner for hours with his face to the wall. (Id. at 23.). She blamed and punished him for 11 everything that went wrong. (Id.) He was not allowed to go outside to ride a bike or play 12 with his friends. (Id. at 22.) 13 During this period, from ages 5 to 10, Boggs received therapy and medication for 14 his hyperactivity and ADHD; he was prescribed Ritalin, which “helped some.” (Id. at 24– 15 25.) His mother had difficulty following through with Boggs’s counseling. (Id. at 25.) He 16 was hospitalized at times for his behavioral problems. (Id. at 26–27.) Although he 17 engaged in destructive behaviors, he never tried to hurt anyone. (Id. at 25.) 18 From ages 10 to 15, Boggs spent half his time in group homes. (Id. at 28.) He was 19 also hospitalized numerous times for his behavioral issues. (Id. at 27.) He received 20 counseling but again his mother was unable to provide proper discipline and guidance. 21 (Id. at 30.) At around age 13 he told a counselor he was hearing voices. (Id. at 28.) He 22 continued to experience problems in school. (Id. at 30.) 23 Boggs’s mother died in 1996, and his siblings two years later. (Id. at 31.) He was 24 very close to his brother and blamed himself for his suicide. (Id.) His maternal 25 grandparents, with whom he was close, died in 1999. (Id.) Boggs spoke of suicide during 26 this period but never threatened anyone else. (Id. at 34.) 27 Next, Dr. Ruiz testified that she diagnosed Boggs with post-traumatic stress 28 disorder and bipolar disorder. (Id. at 78, 81–82.) She explained that Boggs had “a long - 24 - 1 history of trauma over many developmental stages,” beginning with his birth. (Id. at 57.) 2 Boggs was a premature infant. (Id.) He was born with a syndrome that left him 3 “deformed,” with facial abnormalities and “a small head that required many, many 4 surgeries.” (Id.) He had a severe cleft palate and “suffered from failure-to-thrive,” again 5 leading to many hospitalizations. (Id.) He was sexually abused at ages 10 and 14. (Id.) He 6 was neglected and physically abused by his mother. (Id.) 7 Boggs experienced seizures and hyperactivity. (Id. at 58.) He had periods of 8 disassociation related to his past trauma, experienced auditory hallucinations, and was 9 suicidal at one point. (Id. at 59–60.) Dr. Ruiz also testified that Boggs “became rather 10 delusional” when speaking about his militia involvement. (Id. at 60.) 11 Finally, Dr. Lanyon testified that Boggs suffers from long-term bipolar, or manic- 12 depressive, disorder. (Id. at 117.) He noted that Boggs had a history of depressive periods 13 and suicide threats or attempts, dating from the age of 10. (Id. at 124, 128.) Other 14 symptoms of the disorder included ADHD, periods of hearing voices, and Boggs’s 15 delusions and grandiosity with respect to his militia involvement. (Id. at 124–25.) 16 Dr. Lanyon testified that Boggs was suffering from bipolar disorder at the time of the 17 crimes. (Id. at 131.) Dr. Lanyon explained, “That doesn’t necessarily mean that his 18 behavior on that day was driven by it. That means that his life up to that point . . . was 19 heavily colored by it.” (Id.) 20 21 In addition to their testimony, counsel submitted the reports of Drs. Ruiz and Lanyon as exhibits for the jury to review. 22 2. 23 Boggs seeks to depose Lisa Willet, the sister of Boggs’s ex-girlfriend, who “has 24 potential mitigation information.” (Doc. 48 at 44.) This assertion, which constitutes the 25 entirety of Boggs’s argument that he is entitled to discovery on this claim, lacks the 26 specificity required by Rule 6. Boggs does not allege specific, relevant facts that might be 27 found in the requested deposition. Thus, the discovery request constitutes the type of 28 “fishing expedition” Rule 6 does not sanction. See Kemp v. Ryan, 638 F.3d 1245, 1260 Analysis - 25 - 1 (9th Cir. 2011); Teti v. Bender, 507 F.3d 50, 60 (1st Cir. 2007). Boggs’s request to 2 depose Lisa Willet is denied. 3 Boggs also seeks expansion of the record to include the materials outlined in 4 Claim 2, as well as additional family records and a recording of the police interview of 5 Chris Hargrave. He also seeks an evidentiary hearing featuring every lay and expert 6 witness discussed above as well as PCR counsel and the PCR investigator and mitigation 7 specialist. (Doc. 48 at 44–51; id., Ex’s 1–97.) 8 Claims 16(E), (H), and (I) were presented to the PCR court and rejected on the 9 merits.5 (ROA-PCR 64 at 9–10; see ROA-PCR 54.) Claim 16(A)(1), which alleges that 10 trial counsel was ineffective for failing to present family background information, was 11 also raised and denied on the merits. (Id. at 6.) Under Pinholster, evidentiary 12 development is not permitted. 563 U.S. at 181. 13 In addition, evidentiary development is not necessary to resolve Claims 16(F) and 14 (G).6 The record is complete with respect to these aspects of counsel’s performance. See 15 Landrigan, 550 U.S. at 474; Totten, 137 F.3d at 1176; Beardslee, 358 F.3d at 585. 16 The remaining claims of ineffective assistance of counsel at sentencing are 17 unexhausted and procedurally defaulted. Boggs contends that their default is excused 18 under Martinez by the ineffective assistance of PCR counsel. (See Doc. 15 at 243, 258, 19 275.) 20 In Claims 16(A)(2) and (3), Boggs alleges that trial counsel failed to investigate, 21 develop, and present mitigating evidence. (Id. at 242.) Specifically, Boggs alleges that 22 counsel failed to present evidence of Boggs’s family history of instability, neglect, and 23 24 5 25 26 27 28 Boggs alleges that trial counsel failed to establish a nexus between mitigation and the offense (E); failed to adequately challenge the rebuttal testimony (H); and failed to ensure that their representation would not cumulatively prejudice Boggs (I). (Doc. 15 at 283, 288, and 291.) Boggs has withdrawn Claim 16(D). (Doc. 26 at 111.) 6 Boggs alleges that trial counsel failed to object to the prosecutor’s causal nexus argument (F) and failed to object to the jury instruction on mitigation (G). (Doc. 15 at 285, 287.) - 26 - 1 physical, mental, and sexual abuse, and failed to present evidence of his mental and 2 cognitive impairments and delusions. (Id. at 246–56). 3 Boggs asserts that the testimony of Rose Nelson presented an “incomplete and 4 misleading” picture of Boggs’s history. (Id. at 248.) In support of that assertion, however, 5 Boggs relies primarily on information that was before the jury, including Nelson’s 6 testimony and Dr. Lanyon’s report. (Id. at 246–53.) Similarly, Boggs’s argument that 7 counsel failed to present evidence of Boggs’s cognitive impairments and delusions relies 8 on information in Dr. Lanyon’s report. (Id. at 254–55.) 9 In Claim 16(B), Boggs alleges that counsel failed to subpoena certain witnesses 10 and failed to adequately prepare others in the mitigation phase. Specifically, he argues 11 that counsel performed deficiently by failing to perform an adequate social history 12 investigation and failing to prepare their expert witnesses. ( 270.) He does not 13 indicate, however, what additional witnesses should have been called. (Id. at 258.) 14 15 In Claim 16(C), he alleges that counsel failed to investigate whether Boggs suffers from Fetal Alcohol Spectrum Disorder (FASD).7 (Id. at 274.) 16 The Court has reviewed the materials with which Boggs seeks to expand the 17 record in support of his claims of ineffective assistance of counsel at sentencing and finds 18 that additional evidentiary development is unnecessary for the Court to address the merits 19 of the allegations. See Downs, 232 F.3d at 1041; Griffey, 345 F.3d at 1067. Boggs has 20 “failed to forecast any evidence beyond that already contained in the record, or otherwise 21 to explain how his claim would be advanced by an evidentiary hearing.” Cardwell v. 22 Greene, 152 F.3d 331, 338 (4th Cir. 1998), overruled on other grounds by Bell v. Jarvis, 23 236 F.3d 149 (4th Cir. 2000); see Bennett v. Angelone, 92 F.3d 1336, 1347 (4th Cir. 24 1996) (denying petitioner’s request for an evidentiary hearing because he added nothing 25 new to the “factual mix already before the district court”). 26 27 28 7 Boggs has withdrawn his allegation that counsel performed ineffectively by failing to investigate whether Boggs was mentally retarded. (Doc. 26 at 109.) - 27 - 1 Accordingly, the Court will grant Boggs’s request to expand the record with 2 respect to Claim 16. With these materials, the record is sufficient for the Court to assess, 3 under both prongs of Strickland, Boggs’s challenges to counsel’s investigation and 4 presentation of mitigating evidence. Because Boggs has not shown what facts a hearing 5 would add to the information contained in the materials he has attached to his motion for 6 evidentiary development, the Court denies Boggs’s request for an evidentiary hearing. 7 See Runningeagle v. Ryan, 825 F.3d 970, 990 (9th Cir. 2016) (“The expanded record 8 included the declarations of witnesses who would testify at a live hearing, and 9 Runningeagle made no showing that their testimony would differ materially from their 10 declarations.”); Williams v. Woodford, 384 F.3d 567, 591 (9th Cir. 2004) (“Oral 11 testimony and cross-examination were not necessary because the documentary evidence 12 submitted fully presented the relevant facts.”). 13 Claim 20: 14 Boggs raises several allegations of ineffective assistance of appellate counsel. 15 (Doc. 15 at 313.) He did not present these claims in state court. Nevertheless, the PCR 16 court addressed and denied two of the claims on the merits: Claims 20(B)(4) and (5), 17 alleging appellate counsel was ineffective for failing to raise the issues of unrecorded 18 bench conferences and the trial court’s failure to hold a hearing on the Rule 404(b) 19 evidence. The parties agree these claims are exhausted. Boggs contends that under 20 Martinez, the ineffective assistance of PCR counsel excuses the defaulted ineffective 21 assistance of appellate counsel claims. 22 Boggs is not entitled to evidentiary development on these claims. Pinholster bars 23 the introduction of new evidence. 563 US at 181. The remaining, unexhausted claims are 24 procedurally barred because Martinez does not apply to claims of ineffective assistance 25 of appellate counsel. In Davila, 137 S. Ct. 2058, the Supreme Court declined to extend 26 Martinez to “allow a federal court to hear a substantial, but procedurally defaulted, claim 27 of ineffective assistance of appellate counsel when a prisoner’s state postconviction 28 counsel provides ineffective assistance by failing to raise that claim.” Id. at 2065. - 28 - 1 Moreover, evidentiary development is not warranted because the record is 2 complete with respect to appellate counsel’s performance. See Landrigan, 550 U.S. at 3 474; Totten, 137 F.3d at 1176. “When a claim of ineffective assistance of counsel is 4 based on failure to raise issues on appeal . . . it is the exceptional case that could not be 5 resolved on an examination of the record alone.” Gray v. Greer, 800 F.2d 644, 647 (7th 6 Cir. 1986). This is not one of those “exceptional cases.” Boggs has not identified any 7 disputed facts relevant to his appellate ineffective assistance claims. See Beardslee, 358 8 F.3d at 585. 9 IV. CONCLUSION 10 Expansion of the record is appropriate with respect to Boggs’s allegations of 11 ineffective assistance of counsel at sentencing. His remaining requests for evidentiary 12 development, including discovery and an evidentiary hearing, are denied. 13 Accordingly, 14 IT IS ORDERED granting in part and denying in part Boggs’s motion for 15 evidentiary development (Doc. 48), as described herein. Expansion of the record is 16 granted with respect to Exhibits 1–97. Boggs’s other requests for evidentiary 17 development are denied. 18 19 20 21 22 IT IS FURTHER ORDERED denying Claims 1, 2, 4 (in part), 7, 8, 12(A), 15 (in part), 17, 18, 22, 40, and 43 as procedurally defaulted and barred from federal review. IT IS FURTHER ORDERED denying Claims 22, 24, 26, 28, 30, and 40 as meritless. Dated this 16th day of April, 2018. 23 24 25 26 Honorable G. Murray Snow United States District Judge 27 28 - 29 -

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