Hampton v. Ryan et al

Filing 103

ORDER: IT IS ORDERED denying the Petition (Doc. 40 ). The Clerk of Court shall enter judgment accordingly. IT IS FURTHER ORDERED denying Petitioner's motion for evidentiary development (Doc. 73 ). IT IS FURTHER ORDERED denying the following m otions as moot: Petitioner's Motions for New Counsel (Docs. 96 and 99 ); Petitioner's Motion to Declare a Conflict of Interest (Doc. 97 ); and Petitioner's Motions for Order to Cease and Desist (Docs. 98 and 101 ). IT IS FURT HER ORDERED denying a certificate of appealability. IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329. (See document for further details). Signed by Senior Judge Roslyn O Silver on 2/27/2019. (SST)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tracy Allen Hampton,
Petitioner,

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v.

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No. CV-14-02504-PHX-ROS
DEATH PENALTY CASE

Charles L. Ryan, et al.,

ORDER

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Respondents.

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Before the Court is Petitioner Tracy Allen Hampton’s amended petition for writ of

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habeas corpus. (Doc. 40.)1 Respondents filed a response and Petitioner filed a reply.

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(Docs. 51, 68.) Petitioner also filed a motion for evidentiary development (Doc. 73), which

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has been fully briefed (Docs. 76, 77). The Court rules as follows.

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I.

BACKGROUND

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In 2002, a jury convicted Petitioner of two counts of first-degree murder and one

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count of manslaughter and sentenced him to death. The following factual summary is taken

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from the opinion of the Arizona Supreme Court affirming the convictions and death

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sentence, State v. Hampton, 213 Ariz. 167, 140 P.3d 950 (2006), and a review of the state

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court record.

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On May 16, 2001, Department of Public Safety officers attempted to serve a traffic

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ticket on Tracy Allen Hampton. The officers went to a house on East Roberts Road in

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These citations refer to the document and page numbers generated by the Court’s
Case Management/Electronic Case Filing system.

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Phoenix, where Hampton had been staying with Charles Findley and Tanya Ramsdell.

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Ramsdell was approximately five months pregnant at the time. When the officers arrived,

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Hampton was not there, but Findley showed the officers a photograph of Hampton, and the

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officers left.

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Early the next day, Misty Ross and Shaun Geeslin went to the house on East Roberts

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Road. Hampton let them in, and Hampton, Findley, Ross, Geeslin and several others

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smoked methamphetamine throughout the morning. Sometime after 10:30 a.m., Hampton

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and Geeslin left. The two returned near noon and entered a back room where Findley was

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kneeling on the floor working on a lighter. Hampton walked over to Findley and called

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out his name. As Findley looked up, Hampton shot him in the forehead, killing him.

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Geeslin and Ross then walked to the front door.

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Hampton began following Geeslin and Ross, but stopped and said something like,

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“Wait, we have one more.” He then went to a bedroom where Ramsdell was sleeping and

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opened the door. Ramsdell told Hampton to get out, and Hampton shot her in the head.

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Ramsdell and her unborn child died as a result.

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Hampton was arrested on May 31, 2001. While awaiting trial in the Maricopa

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County jail in August 2001, Hampton shared a cell with George Ridley. Ridley testified

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at trial that Hampton admitted to committing the murders and told him the story of the

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murders every night for two weeks. Hampton told Ridley that he killed Findley because

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“he was a rat” and he killed Ramsdell because Hampton was affiliated with the Aryan

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Brotherhood and thought that Ramsdell was pregnant with a Black man’s child. Ridley

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also testified that before leaving the house, Hampton knelt down next to Findley’s body

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and whispered in his ear, “I want to let you know I took care of your nigger loving old lady

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and her little coon baby, too. Don’t worry, they didn’t feel a thing.”

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The jury found Petitioner guilty on all counts. It then found that Petitioner was

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eligible for the death penalty for both counts of murder and concluded that the mitigating

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circumstances were not sufficiently substantial to call for leniency.

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accordingly imposed death sentences for the two murder convictions. It also imposed an

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The trial court

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aggravated term of twelve and one-half years for manslaughter, to run consecutively to the

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death sentences. The Arizona Supreme Court upheld the convictions on direct appeal.
On August 18, 2011, Hampton filed an amended petition for post-conviction relief

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(“PCR”). He raised six claims:

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1. Ineffective assistance of counsel at the guilt phase of trial;

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2. Ineffective assistance of counsel at the sentencing phase of trial;

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3. Newly-discovered evidence;

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4. That the Arizona Supreme Court improperly applied Tennard v. Dretke, 542 U.S.

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274 (2004);

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5. Ineffective assistance of appellate counsel; and

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6. The ex post facto application of A.R.S. §31-230(C) to the imposed restitution.

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(See Doc. 51-3 at 158.)

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The Court summarily dismissed claims 3 through 6. It concluded that claims 3, 5

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and 6 were not colorable, and that claim 4 was procedurally barred under Rule 32.2(a).

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(Id.)

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The Court then held a five-day evidentiary hearing on claims 1 and 2. (See id. at

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176). Petitioner argued that his trial counsel were ineffective at the guilt phase by failing

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to conduct a reasonable investigation, to call various witnesses and to present evidence in

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support of a third-party defense. He further argued that they were ineffective at the

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sentencing phase by failing to conduct a reasonable investigation and failing to call mental

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health experts to present mitigation evidence. The PCR court denied these claims. (Id. at

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194.) The Arizona Supreme Court then summarily denied review. (Doc. 54-8 at 138.)
Hampton filed his petition for habeas relief in this Court on October 5, 2015 (Doc.

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21), and an amended petition on January 29, 2016 (Doc. 40).

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II.

APPLICABLE LAW

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

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Effective Death Penalty Act (“AEDPA”). The AEDPA defines the substantive and

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procedural limits on the claims a capital habeas petitioner may bring, and the Rules

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Governing Section 2254 Cases define the types of evidentiary development a petitioner

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may seek if his claims otherwise meet the requirements of the AEDPA.

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Under the AEDPA, a petitioner is not entitled to habeas relief on any claim

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adjudicated on the merits in state court unless the state court’s adjudication (1) resulted in

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a decision that was contrary to, or involved an unreasonable application of, clearly

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established federal law or (2) resulted in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in state court. 28 U.S.C. §

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2254(d).

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

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

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362, 410 (2000). Under § 2254(d)(1), “[a] state court’s determination that a claim lacks

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

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correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)

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(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

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Under § 2254(d)(2), a state court’s factual determination is presumed correct and a

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petitioner bears the burden of overcoming that presumption with clear and convincing

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evidence. 28 U.S.C. § 2254(e)(1). Satisfying § 2254(d)(2) is a “daunting” burden, “one

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that will be satisfied in relatively few cases.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th

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Cir. 2004), overruled on other grounds by Murray v. Schriro (Robert Murray), 745 F.3d

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984, 1000 (9th Cir. 2014). A state court’s “factual determination is not unreasonable

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merely because [a] federal habeas court would have reached a different conclusion in the

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first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Instead, a federal habeas court

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“must be convinced that an appellate panel, applying the normal standards of appellate

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review, could not reasonably conclude that the finding is supported by the

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record.” Taylor, 366 F.3d at 1000.

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A.

Exhaustion and Procedural Default

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The AEDPA requires that a writ of habeas corpus not be granted unless it appears

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that the petitioner has properly exhausted all available state court remedies. 28 U.S.C. §

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2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991). To properly exhaust

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state remedies, the petitioner must “fairly present[]” his claims to the state’s highest court

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in a procedurally appropriate manner. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).

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Petitioners meet this requirement by describing the operative facts and the federal legal

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theory on which a habeas claim is based so that state courts have a fair opportunity to apply

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controlling legal principles to the facts bearing upon the claim. Anderson v. Harless, 459

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U.S. 4, 6 (1982).

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A claim may also be “technically” exhausted if the petitioner has lost the

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opportunity to raise his claim on “independent and adequate” state law grounds. Coleman,

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501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court

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meets the technical requirements for exhaustion; there are no state remedies any longer

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‘available’ to him.”). Such “technically” exhausted claims, however, are considered

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procedurally defaulted and are not subject to habeas relief. See id. at 731–32; Smith v.

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Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007).

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In Arizona, there are two avenues for petitioners to present and exhaust federal

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constitutional claims in state court: direct appeal and PCR proceedings. Rule 32 of the

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Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a

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petitioner is procedurally barred from relief on any claim that could have been raised on

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appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3). If an Arizona court

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concludes that a claim was waived under this rule, that independent and adequate

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procedural ground precludes federal habeas relief. See Hurles v. Ryan, 752 F.3d 768, 780

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(9th Cir. 2014).

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Procedural default, however, is not an insurmountable bar to relief. A petitioner

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may raise a defaulted claim if the petitioner “can demonstrate cause for the default and

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actual prejudice as a result of the alleged violation of federal law, or demonstrate that

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failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman,

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501 U.S. at 750.

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Generally, “cause” for a procedural default exists if a petitioner can demonstrate

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that “some objective factor external to the defense impeded counsel’s efforts to comply

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with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); accord

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Coleman, 501 U.S. at 753.

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constitutional error or violation. Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). To

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establish prejudice resulting from a procedural default, a petitioner bears the burden of

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showing not merely that the errors at his trial were possibly prejudicial, but that they

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worked to his actual and substantial disadvantage, infecting his entire trial with errors of

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constitutional dimension. United States v. Frady, 456 U.S. 152, 170 (1982).

“Prejudice” is actual harm resulting from the alleged

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Because the acts of a petitioner’s counsel are not external to the defense, they are

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generally attributable to the petitioner, and negligence, ignorance, or inadvertence on

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counsel’s part does not qualify as “cause.” Coleman, 501 U.S. at 752–54 (citing Carrier,

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477 U.S. at 488). However, where the ineffective assistance of counsel amounts to an

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independent constitutional violation, it can establish cause. Id. at 753–54; Ortiz v. Stewart,

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149 F.3d 923, 932 (9th Cir. 1998).

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For ineffective assistance of counsel claims, a petitioner may establish cause for a

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procedural default “by demonstrating two things: (1) ‘counsel in the initial-review

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collateral proceeding, where the claim should have been raised, was ineffective under the

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standards of Strickland v. Washington, 466 U.S. 668 (1984),’ and (2) ‘the underlying

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ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the

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prisoner must demonstrate that the claim has some merit.’” Cook v. Ryan, 688 F.3d 598,

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607 (9th Cir. 2012) (quoting Martinez v. Ryan, 566 U.S. 1, 14 (2012)); see also Pizzuto v.

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Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015).

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To prevail under Strickland, a petitioner must show that counsel’s representation

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fell below an objective standard of reasonableness and that the deficiency prejudiced the

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defense. 466 U.S. at 687–88. The inquiry under Strickland is highly deferential, and

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“every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct

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the circumstances of counsel’s challenged conduct, and to evaluate the conduct from

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counsel’s perspective at the time.” Id. at 689; Atwood v. Ryan, 870 F.3d 1033, 1055 (9th

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Cir. 2017).

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To satisfy Strickland’s first prong, a defendant must overcome “the presumption

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

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strategy.” Strickland, 466 U.S. at 689. With respect to Strickland’s second prong, a

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petitioner must affirmatively prove prejudice by “show[ing] that there is a reasonable

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probability that, but for counsel’s unprofessional errors, the result of the proceeding would

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have been different. A reasonable probability is a probability sufficient to undermine

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confidence in the outcome.” Id. at 694.

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The Martinez exception to procedural default applies only to claims of ineffective

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assistance of trial counsel; it has not been expanded to other types of claims. Pizzuto, 783

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F.3d at 1177 (explaining that the Ninth Circuit has “not allowed petitioners to substantially

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expand the scope of Martinez beyond the circumstances present in Martinez”); Hunton v.

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Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013) (noting that only the Supreme Court can

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expand the application of Martinez to other areas); see Davila v. Davis, 137 S. Ct. 2058,

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2062–63, 2065–66 (2017) (explaining that the Martinez exception does not apply to claims

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of ineffective assistance of appellate counsel).

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Alternatively, a petitioner may be able to overcome a procedural default by

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establishing that a fundamental miscarriage of justice occurred.

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miscarriage of justice occurs where the petitioner makes a sufficient showing of actual

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innocence. See Schlup v. Delo, 513 U.S. 298, 316 (1995) (“[I]f a petitioner . . . presents

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evidence of innocence so strong that a court cannot have confidence in the outcome of the

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trial unless the court is also satisfied that the trial was free of nonharmless constitutional

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error, the petitioner should be allowed to pass through the gateway and argue the merits of

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his underlying claims.”). “In Schlup, the Court . . . held that prisoners asserting innocence

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as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more

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likely than not that no reasonable juror would have found petitioner guilty beyond a

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reasonable doubt.’” House v. Bell, 547 U.S. 518, 536–37 (2006) (quoting Schlup, 513 U.S.

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A fundamental

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at 327). To revive a claim under Schlup, a petitioner’s claim of innocence must be “truly

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extraordinary.” Id.

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B.

Evidentiary Development

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Under the Rules Governing Section 2254 Cases, a petitioner may seek to discover

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and introduce additional evidence in federal court. The court’s discretion to grant such

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requests, however, is limited.

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In Cullen v. Pinholster, 563 U.S. 170 (2011), the Court emphasized that “review

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

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the claim on the merits.” Id. at 181; see also Robert Murray, 745 F.3d at 998 (“Along with

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the significant deference AEDPA requires us to afford state courts’ decisions, AEDPA also

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restricts the scope of the evidence that we can rely on in the normal course of discharging

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our responsibilities under § 2254(d)(1).”). However, Pinholster does not bar evidentiary

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development where the court has determined, based solely on the state court record, that

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the petitioner “has cleared the § 2254(d) hurdle.” Madison v. Comm’r, Ala. Dep’t of Corr.,

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761 F.3d 1240, 1249–50 (11th Cir. 2014); see Pinholster, 563 U.S. at 185; Henry v. Ryan,

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720 F.3d 1073, 1093 n.15 (9th Cir. 2013).

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To clear the § 2254(d) hurdle, a petitioner must establish that the state court’s

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decision (1) “was contrary to, or involved an unreasonable application of, clearly

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established Federal law,” or (2) “was based on an unreasonable determination of the facts

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in light of the evidence presented” in state court. 28 U.S.C. § 2254(d). A petitioner who

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meets the deferential standards of § 2254(d) may be entitled to evidentiary development if

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the following standards are also met.

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

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

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1358 (9th Cir. 1993). Rule 6 of the Rules Governing Section 2254 Cases provides that “[a]

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judge may, for good cause, authorize a party to conduct discovery under the Federal Rules

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of Civil Procedure and may limit the extent of discovery.” Rule 6(a), Rules Governing §

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2254 Cases, 28 U.S.C. foll. § 2254.

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Second, a federal court may not hold a hearing unless it first determines that the

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petitioner did not “fail to develop” the factual basis of the claim in state court. See Williams

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v. Taylor (Michael Williams), 529 U.S. 420, 431–32 (2000). “[A] failure to develop the

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factual basis of a claim is not established unless there is lack of diligence, or some greater

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fault, attributable to the prisoner or the prisoner’s counsel.” Id. at 432; see also Baja v.

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Ducharme, 187 F.3d 1075, 1078–79 (9th Cir. 1999). “[A] petitioner who ‘knew of the

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existence of [] information’ at the time of his state court proceedings, but did not present it

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until federal habeas proceedings, ‘failed to develop the factual basis for his claim

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diligently.’” Rhoades v. Henry, 598 F.3d 511, 517 (9th Cir. 2010).

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Moreover, an evidentiary hearing is not required if the issues can be resolved by

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reference to the state court record. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998)

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(“It is axiomatic that when issues can be resolved with reference to the state court record,

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an evidentiary hearing becomes nothing more than a futile exercise.”); see also Schriro v.

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Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant’s factual

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allegations or otherwise precludes habeas relief, a district court is not required to hold an

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evidentiary hearing.”). Likewise, “an evidentiary hearing is not required if the claim

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presents a purely legal question and there are no disputed facts.” Beardslee v. Woodford,

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358 F.3d 560, 585 (9th Cir. 2004); see Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th

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Cir. 1992).

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Finally, under Rule 7 of the Rules Governing Section 2254 Cases, a federal habeas

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court is authorized to expand the record to include additional material relevant to the

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petition. The purpose of expansion of the record under Rule 7 “is to enable the judge to

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dispose of some habeas petitions not dismissed on the pleadings, without the time and

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expense required for an evidentiary hearing.” Advisory Committee Notes, Rule 7, 28

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U.S.C. foll. § 2254; see also Blackledge v. Allison, 431 U.S. 63, 81–82 (1977); Downs v.

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Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000) (explaining that the need for an evidentiary

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hearing may be obviated by expansion of record).

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III.

ANALYSIS

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The Petition sets forth 39 claims for relief. For the reasons set forth below, those
claims are denied.

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A.

Actual Innocence

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In Claim 1, Petitioner alleges that his rights to “due process, a fair trial, a reliable

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sentence, effective assistance of counsel, and to be free from cruel and unusual

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punishment” were violated “because he is actually innocent.” (Doc. 40 at 26.) He

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acknowledges, and the Court finds, that this claim was not raised in state court, but

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Petitioner summarily alleges that he can overcome that procedural default under Martinez,

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Schlup, and Strickler v. Greene, 527 U.S. 263, 289 (1999) (finding cause and prejudice for

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the default of a Brady2 claim). The state argues that this claim is not cognizable and without

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merit. (Doc. 51 at 33.)

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The Court need not decide whether the default of this claim can be properly excused

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because, as this Court has previously explained, see Hampton v. Ryan, No. CV-14-2504-

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PHX-ROS, 2016 WL 3653965, at *4–5 (D. Ariz. July 8, 2016) (denying Petitioner’s

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motion for an order staying and holding in abeyance these habeas proceedings), it is

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without merit. See 28 U.S.C. § 2254(b)(2) (authorizing the denial of meritless habeas

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claims regardless of the claims’ procedural status); see also Murray v. Schriro (Roger

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Murray), 882 F.3d 778, 808 (9th Cir. 2018); Atwood, 870 F.3d at 1065 n.28. Although the

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United States Supreme Court has not foreclosed actual innocence claims, see Herrera v.

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Collins, 506 U.S. 390, 417 (1993), the Court has emphasized that the standard for

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establishing such a claim “would necessarily be extraordinarily high.” Id. Petitioner has

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not met that burden. See Hampton, 2016 WL 3653965, at *5 (“Hampton has not offered

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‘new reliable evidence’ of his innocence. . . . The evidence does not affirmatively prove

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that he is more likely than not innocent of the murders and that no reasonable juror would

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have found him guilty beyond a reasonable doubt.” (citation omitted)).

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Petitioner’s request for evidentiary development in support of this claim is also

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denied because Petitioner has not “allege[d] facts which, if proved, would entitle him to

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Brady v. Maryland, 373 U.S. 83 (1963).
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relief.” Townsend v. Sain, 372 U.S. 293, 312–13 (1963), overruled in part by Keeney v.

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Tamayo–Reyes, 504 U.S. 1 (1992); see also Insyxiengmay v. Morgan, 403 F.3d 657, 670

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(9th Cir. 2005) (a claim must be “colorable” before an evidentiary hearing will be granted).

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Petitioner alleges that the state’s key witness, Misty Ross, later gave conflicting

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descriptions of the crime, the state’s informant, George Ridley, lied on the stand about

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Petitioner’s alleged confession, and that an alternative suspect, Tim Wallace, confessed to

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the crime. As this Court previously noted, these allegations are insufficient to state a

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freestanding actual innocence claim. See Hampton, 2016 WL 3653965, at *5 (“Hampton

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has offered no new evidence that would preclude the possibility of his guilt. . . . At most

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the new evidence undercuts the trial testimony of Misty Ross and George Ridley, . . . but

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it does so in a way that is cumulative to the impeachment evidence in Hampton’s

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possession at the time of trial.” (citations omitted)). Because the facts Petitioner alleges

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are not sufficient to state an actual innocence claim, evidentiary development would be

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futile. See Totten, 137 F.3d at 1176.

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Claim 1 is denied.

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Petitioner next asserts that, even if his substantive actual innocence claim fails, his

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actual innocence excuses the default of other claims based on the “gateway” articulated in

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Schlup. See 513 U.S. at 298. Under Schlup, an actual innocence claim that is “not itself a

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constitutional claim” may nonetheless serve as “a gateway through which a habeas

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petitioner must pass to have his otherwise barred constitutional claim[s] considered on the

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merits.” Id. at 315 (quoting Herrera, 506 U.S. at 404). To revive a claim under Schlup, a

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petitioner must show that “it is more likely than not that no reasonable juror would have

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convicted him in the light of the new evidence.” Id. at 327.

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Petitioner seeks evidentiary development to establish that no reasonable juror would

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have convicted him in light of new evidence under Schlup in order to revive five defaulted

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claims: Claims 2, 3, 4, 6, and 8. When evaluating a claim under Schlup, “a habeas court

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must consider all the evidence, old and new, incriminating and exculpatory, without regard

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to whether it would necessarily be admitted under rules of admissibility that would govern

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at trial.” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 327). To receive a hearing

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in support of a Schlup claim, Petitioner must “make[] a good-faith allegation that would, if

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true, entitle him to equitable tolling.” Stewart v. Cate, 757 F.3d 929, 941 (9th Cir. 2014)

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(quoting Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006)).

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Even taking the evidence Petitioner offers in support of his actual innocence claim

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as true, it does not undermine confidence in the outcome of his trial for purposes of Schlup.

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The new evidence Petitioner seeks to admit in support of his actual innocence claim can be

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summarized as follows: (1) testimony supporting the third-party defense originally

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presented during Petitioner’s trial; (2) testimony that the state’s eye witness, Misty Ross,

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lied and had motive to lie; and (3) testimony that the state’s informant, George Ridley, lied

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and had motive to lie. Much of this evidence was already presented during trial, and any

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new evidence is not sufficient to undermine confidence in the outcome of Petitioner’s trial.

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First, Petitioner presented his third-party defense to the jury. One witness, Mark

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Sandon testified at trial that he heard Tim Wallace confess to the crime. (RT 05/01/02 at

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34:5–35:21.) Petitioner now seeks to bolster Wallace’s alleged confession by introducing

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additional witness testimony that Wallace may have committed the crimes and evidence

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that Wallace may have had motive to commit the crimes. Most notably, Petitioner offers

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testimony that one of the victims, Charles Findley, may have been cooperating, or willing

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to cooperate, with police regarding Wallace’s drug activities. Petitioner first offers the

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testimony of Keva Armijo, who asserts that Wallace may have believed that Ridley was “a

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snitch.” (See Doc. 73 at 30.) Petitioner acknowledges that Armijo’s testimony was

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available during his trial. (Doc. 40 at 67–70.) The remaining evidence includes statements

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from Jared Dansby and hearsay statements from Miranda Clark that imply that Wallace

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may have suspected that Ridley was cooperating with police. (See Doc. 73 at 33–34.)

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Second, Petitioner seeks to admit evidence that Ross had motive to lie, and did lie,

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about the murders. Specifically, he offers statements indicating that Ross was angry with

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Hampton and that she later admitted that she did not actually witness the murders. (See id.

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at 31, 35.) A majority of this evidence is not new—the trial jury heard evidence that Ross

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may have had reason to be angry with Hampton.

(See, e.g., RT 4/30/02 at 45.)

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Furthermore, Ross’s alleged recantation is unreliable. One witness, who was available

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during trial, allegedly heard Ross say that Hampton was innocent, but also offers in her

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declaration that Ross told so many different versions of the crimes that it is unclear “if any

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of the stories were the truth.” (Doc. 42-9 at 2.) The other witnesses Petitioner seeks to

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present do not suggest that Ross has recanted her testimony. Rather, these witnesses state

7

only that Ross may not have been in the same room as the victims when the murders

8

occurred. (Doc. 43-3 at 15, 18.)

9

Third, Petitioner’s proposed testimony regarding Ridley’s capacity for truthfulness

10

and motive to lie is cumulative to the information presented to the jury. As discussed

11

further regarding Claim 2 below, Ridley’s testimony was thoroughly impeached on cross

12

examination, and the jury heard that he would do anything to avoid incarceration.

13

Petitioner also offers hearsay testimony that Ridley recanted his trial testimony, but in his

14

own declaration, Ridley does not state that his testimony was untruthful. (Doc. 43-3 at 26.)

15

Taking this evidence together, it does not undermine confidence in the outcome of

16

Petitioner’s trial. Petitioner’s actual innocence claim is founded on innuendo and hearsay.

17

While courts must consider all evidence supporting a Schlup gateway claim, they must do

18

so with “due regard to any unreliability.” Schlup, 513 U.S. at 328. Much of the evidence

19

Petitioner seeks to admit is not new or reliable. The remainder is insufficient to undermine

20

confidence in the outcome his trial. The physical evidence corroborates Ross’s trial

21

testimony regarding the manner in which the victims were killed: Findley was shot in the

22

head while crouched on the floor, and Ramsdell was shot while lying in bed. Furthermore,

23

Petitioner has not offered compelling evidence to undermine Ross’s testimony that it was

24

Hampton who shot the victims. Because Petitioner has not established that he could be

25

entitled to relief based on the evidence he seeks to present, a hearing is unnecessary to deny

26

his Schlup gateway claim.

27
28

- 13 -

1

Moreover, even if the Court assumes, arguendo, that Petitioner could meet the

2

Schlup standard, Petitioner is not entitled to habeas relief because, as explained below, each

3

of the procedurally defaulted claims Petitioner seeks to revive fails on its merits.
1.

4

Claim 2

5

Petitioner alleges that his rights to “due process, a fair trial, effective assistance of

6

counsel, and freedom from cruel and unusual punishment” were violated by the admission

7

of Ridley’s testimony. (Doc. 40 at 55.) Specifically, he alleges (A) that the state violated

8

Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose Ridley’s presentence report

9

to the defense; (B) the state violated Napue v. Illinois, 360 U.S. 264, 269 (1959) by

10

knowingly permitting Ridley to offer perjured testimony; and (C) Petitioner’s trial counsel

11

was ineffective for failing to properly address these issues during the trial. (Id. at 57–65.)

12

Petitioner acknowledges, and the Court finds, that Claim 2 was not presented in state court.

13

Petitioner alleges that he can overcome his procedural default of these claims under the

14

standards in Schlup and Martinez. Because Claim 2 is without merit, however, the Court

15

need not determine whether Petitioner can overcome this procedural default. See 28 U.S.C.

16

§ 2254(b)(2).

17

As a preliminary matter, Petitioner has requested evidentiary development—in the

18

form of discovery, a hearing, and expansion of the record—in support of the merits of this

19

claim. (Doc. 73 at 39–40.) As this Court previously observed, the new evidence Petitioner

20

seeks to present “[a]t most . . . undercuts the trial testimony of Misty Ross and George

21

Ridley . . . in a way that is cumulative to the impeachment evidence in Hampton’s

22

possession at the time of trial.” Hampton, 2016 WL 3653965, at *3. In sum, and as further

23

explained below, Petitioner has not alleged facts that, if proved, would entitle him to relief.

24

Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir. 2010) (citing Insyxiengmay, 403 F.3d at

25

670). Petitioner’s request for evidentiary development in support of the merits of Claim 2

26

is therefore denied.

27

a.

Brady

28

- 14 -

1

In Claim 2A, Petitioner alleges that the state violated Brady by suppressing Ridley’s

2

presentence report.

There are “three components or essential elements of a Brady

3

prosecutorial misconduct claim: ‘The evidence at issue must be favorable to the accused,

4

either because it is exculpatory, or because it is impeaching; that evidence must have been

5

suppressed by the State, either willfully or inadvertently; and prejudice must have

6

ensued.’” Banks v. Dretke, 540 U.S. 668, 691 (2004) (quoting Strickler, 527 U.S. at 281–

7

82). To establish prejudice, a petitioner must show that the suppressed evidence was

8

material to his case—that is, that “there is a reasonable probability that, had the evidence

9

been disclosed to the defense, the result of the proceeding would have been different.”

10

Browning v. Baker, 875 F.3d 444, 464 (9th Cir. 2017) (quoting United States v. Bagley,

11

473 U.S. 667, 682 (1985)). “A ‘reasonable probability’ is a probability sufficient to

12

undermine confidence in the outcome.” Id.

13

This Court previously addressed Petitioner’s Brady claim and concluded that the

14

information included in Ridley’s presentence report was, at best, cumulative to the

15

evidence offered at trial. Hampton, 2016 WL 3653965, at *5–7. Because the evidence in

16

Ridley’s presentence report was merely cumulative to the evidence already presented to

17

the jury, the state’s alleged failure to disclose the report does not undermine confidence in

18

the outcome of Petitioner’s trial.

19
20

Claim 2A is meritless and is denied.
b.

Napue

21

In Claim 2B, Petitioner alleges that the state violated Napue by offering perjured

22

testimony. The Supreme Court has held that “a conviction obtained through use of false

23

evidence, known to be such by representatives of the State, must fall under the Fourteenth

24

Amendment.” Napue, 360 U.S. at 269. “A claim under Napue will succeed when ‘(1) the

25

testimony (or evidence) was actually false, (2) the prosecution knew or should have known

26

that the testimony was actually false, and (3) the false testimony was material.’” Sivak v.

27

Hardison, 658 F.3d 898, 908–09 (9th Cir. 2011) (quoting Jackson v. Brown, 513 F.3d 1057,

28

1071–72 (9th Cir. 2008)).

- 15 -

1

Petitioner asserts that he can establish falsity by pointing to Ridley’s assertion that

2

he never engaged in violent behavior toward his ex-wife. (Doc. 40 at 63.) The state claims

3

Ridley did not violate Napue by answering “no” because “[i]n Ridley’s opinion, his actions

4

with his ex-wife were not violent.” (Doc. 51 at 51.) The question under Napue, however,

5

is not whether the witness knew his testimony to be false, but rather whether the state knew

6

that the testimony was false and thus had a constitutional duty to correct it. Cf. Hayes v.

7

Brown, 399 F.3d 972, 980–81 (9th Cir. 2005) (en banc) (rejecting the argument that “it is

8

constitutionally permissible for [the prosecution] knowingly to present false evidence to a

9

jury in order to obtain a conviction, as long as the witness used to transmit the false

10

information is kept unaware of the truth”).

11

Petitioner alleges that Ridley stalked, threatened, and physically abused his former

12

wife, and that counsel for Petitioner and the state were aware of this prior behavior. The

13

defense asked Ridley if any of his prior convictions involved violence or whether he had

14

ever acted violently toward his wife. Ridley answered no to both questions. Ridley’s

15

testimony was objectively misleading, if not false, which arguably obligated the state to

16

correct the testimony. See Towery v. Schriro, 641 F.3d 300, 309 (9th Cir. 2010) (collecting

17

cases in support of the view “that accurate testimony could be delivered in a sufficiently

18

misleading context to make the evidence false for Napue purposes”).

19

Petitioner’s Napue claim fails, however, because the error was not material. See

20

Jackson v. Brown, 513 F.3d 1057, 1075–76 (9th Cir. 2008) (“A jury’s finding should be

21

overturned as a result of . . . [a] Napue violation[] if and only if [it is] material.”). “Instead

22

of asking whether there was a ‘reasonable probability’ of a different outcome, a Napue

23

violation requires a court to ask whether there is ‘any reasonable likelihood that the false

24

testimony could have affected the judgment of the jury.’” Libberton v. Ryan, 583 F.3d

25

1147, 1164 (9th Cir. 2009) (quoting Hayes, 399 F.3d at 985).

26

The state’s failure to correct the record in this case was not material. As this Court

27

previously explained, Hampton, 2016 WL 3653965, at *6–7, Ridley’s credibility was

28

thoroughly impeached during Petitioner’s trial. He testified, for example, to his prior

- 16 -

1

stalking conviction, his desire not to return to prison, and his willingness to “say whatever

2

it took” to avoid incarceration. Id. In sum, the jury already had notice that Ridley may

3

have been willing to lie, had motive to lie, and had several prior felony convictions. There

4

is no reasonable likelihood that the jury’s impression of Ridley and his testimony would

5

have been meaningfully altered by the fact that Ridley gave false or misleading testimony

6

regarding his propensity for violence against his former wife, and thus there is no

7

reasonable probability that the alleged perjury could have affected the jury’s judgment.

8
9

Because Petitioner has failed to allege facts sufficient to establish prejudice for
purposes of Napue, Claim 2B is denied as meritless.
c.

10

Ineffective Assistance of Counsel

11

Finally, Petitioner alleges in Claim 2C that his counsels’ failure to obtain Ridley’s

12

presentence report was ineffective assistance. (Doc. 40 at 64–65.) A claim of ineffective

13

assistance of counsel requires that Petitioner establish that counsel’s representation fell

14

below an objective standard of reasonableness and that, but for counsel’s unprofessional

15

errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.

16

Petitioner has failed to establish a reasonable probability that defense counsels’

17

access to or use of Ridley’s presentence report would have had any impact on the result of

18

Petitioner’s trial.

19

thoroughly discredited Ridley during cross examination. There is no reasonable likelihood

20

that having Ridley’s presentence report would have made counsels’ cross examination

21

more effective, and counsels’ failure to obtain the presentence report does not undermine

22

confidence in the outcome of Petitioner’s trial.

23
24

As discussed above and in this Court’s prior order, trial counsel

Claim 2C is denied as meritless.
2.

Claim 3

25

Petitioner next argues that his counsel were ineffective in preparing and presenting

26

the guilt phase of his trial due to their failure “to call witnesses and present evidence which

27

would have raised reasonable doubt about Mr. Hampton’s guilt.” (Doc. 40 at 66.)

28

- 17 -

1

Petitioner requests discovery, expansion of the record, and an evidentiary hearing in

2

support of this claim. (Doc. 73 at 37–49.)

3

Petitioner alleges that this claim was raised in state court.

(Doc. 40 at 66.)

4

Respondents state that some unspecified portion of this claim was presented in state court

5

and the remaining portion of this claim is procedurally defaulted. (Doc. 51 at 52). In his

6

PCR petition, Petitioner alleged that his trial counsel was ineffective for failing to call Keva

7

Armijo, “Witness,”3 Stephanie Janowitz, Jennifer Doer, and Steve Duran, and for failing

8

to present impeachment evidence regarding Sean Geeslin, Tim Wallace, Charles Findley,

9

and Misty Ross. (Doc. 51-2 at 8–15.) The PCR court denied this claim (Doc. 54-3 at 183–

10

84), and the Arizona Supreme Court summarily denied discretionary review (see id. at

11

246–53; Doc. 54-8 at 138).

12

Before this Court, Petitioner now similarly claims his counsel failed to call Keva

13

Armijo, Witness, Jennifer Doerr, and Stephanie Lopez, but adds that his counsel “were also

14

ineffective in failing to present evidence from Bob Short, Miranda Clark, Edna Mitchell,

15

Jared Dansby, and Steve Duran.” (Doc. 40 at 67–73.) Petitioner asserts that, to the extent

16

his claim in this Court exceeds the scope of his claim in state court, his failure to raise all

17

parts of his claim is excused by his actual innocence under Schlup, the state’s suppression

18

of material evidence under Strickler, and the ineffectiveness of his post-conviction counsel

19

under Martinez. (Id. at 66.)

20

Petitioner’s alteration of this claim does not render it unexhausted. Factual allegations

21

not presented to a state court may render a claim unexhausted if the allegations

22

“fundamentally alter” the legal claim presented and considered by the state courts. Dickens

23

v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014) (citing Vasquez v. Hillery, 474 U.S. 254, 260

24

(1986)). New evidence fundamentally alters a claim if it places the claim in a significantly

25

different and stronger evidentiary posture than it had in state court. Id. (citing Aiken v.

26

Spalding, 841 F.2d 881, 883, 884 n.3 (9th Cir. 1988)). Under Dickens, the question of

27
28

3

Petitioner identifies “Witness” as a friend of trial witness Misty Ross who has
requested anonymity. (Doc. 40 at 29 n.5.)
- 18 -

1

whether Martinez applies to Claim 3 hinges on whether the claim, as presented in these

2

federal proceedings, is fundamentally different from the one presented in state court.

3

Claim 3 is not fundamentally different from the ineffective assistance of counsel

4

claim Petitioner raised in state court. A petitioner may “develop additional facts supporting

5

[a] particular” claim of ineffective assistance of counsel, but may not add “unrelated

6

alleged instances of counsel’s ineffectiveness.” See Moormann v. Schriro, 426 F.3d 1044,

7

1056 (9th Cir. 2005); see also Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013).

8

Petitioner alleged in state court that his counsel was ineffective for failing to sufficiently

9

investigate and present evidence in the guilt phase of the trial, including numerous lay

10

witnesses. Petitioner presents the same claim here but has made some adjustments

11

regarding which specific witnesses he now believes had relevant evidence his counsel

12

should have presented. This change does not render Claim 3 unexhausted.

13

Because this claim was already fairly presented to the state court, this Court looks to

14

the last reasoned state court decision to determine whether it was contrary to or an

15

unreasonable application of clearly established federal law or was based on an

16

unreasonable determination of fact under § 2254(d)(1) and (2). Because the Arizona

17

Supreme Court summarily denied review of this claim, this Court looks to the last merits

18

ruling, which was issued by the state PCR court. See Robert Murray, 745 F.3d at 996

19

(“When a state court does not explain the reason for its decision, we ‘look through’ to the

20

last state-court decision that provides a reasoned explanation capable of review.”). The

21

PCR court concluded that counsel was not ineffective for failing to investigate or failing to

22

introduce the proposed additional evidence. (See Doc. 54-3 at 177–84.) The PCR court’s

23

decision was not unreasonable for purposes of § 2254(d).

24

Courts are obligated to presume that trial counsel may have had strategic reasons for

25

failing to call these additional witnesses. Strickland, 466 U.S. at 689 (“[A] court must

26

indulge a strong presumption that counsel’s conduct falls within the wide range of

27

reasonable professional assistance; that is, the defendant must overcome the presumption

28

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

- 19 -

1

strategy.’” (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955))).

In particular,

2

“strategic choices made after thorough investigation of law and facts relevant to plausible

3

options are virtually unchallengeable.” Id. at 690.

4

In this case, Petitioner acknowledges that the defense investigator and lead counsel

5

both knew of the witnesses and information Petitioner now alleges should have been

6

presented to the jury. (Doc. 68 at 67.) He argues instead that because his lead counsel,

7

James Logan, did not inform his co-counsel, Maria Schaffer, of this information, his

8

counsels’ “investigation” was insufficient. This argument is without merit.

9

Once Petitioner’s lead counsel had access to the information in question, he had

10

discretion to make reasonable tactical decisions regarding how to use it, see Strickland,

11

466 U.S. at 690–91, which would include whether to ask his less experienced co-counsel

12

to evaluate or use that information. Whether the “investigation” was reasonable is a

13

separate question from whether the delegation of tasks amongst the defense team was

14

reasonable after the investigation was complete.

15

Petitioner’s counsel failed to investigate, and the PCR court was not unreasonable for

16

concluding that counsels’ investigation was constitutionally sufficient.

The record does not indicate that

17

Having concluded that the investigation was sufficient, the PCR court next noted that

18

Petitioner’s counsel may have had many reasons, including possible bias, credibility, or

19

consistency problems, for not calling these additional witnesses, and nothing in the record

20

rebuts that presumption. (Doc. 54-3 at 183.) This was not contrary to or an unreasonable

21

application of clearly established federal law. Petitioner’s lead counsel knew of the

22

witnesses in question and elected not to call them. Because he did not recall specifics about

23

his strategy in this case, the court did not err by “entertain[ing] the range of possible reasons

24

[Petitioner’s] counsel may have had for proceeding as [he] did.” Leavitt v. Arave, 646 F.3d

25

605, 609 (9th Cir. 2011) (quoting Pinholster, 563 U.S. at 195) (internal quotation marks

26

omitted).

27

Although Schaffer did testify that her failure to pursue these witnesses was not a

28

tactical decision, see Doe v. Ayers, 782 F.3d 425, 445 (9th Cir. 2015) (“Generally, we credit

- 20 -

1

the statements of defense counsel as to whether their decisions at trial were—or were not—

2

based on strategic judgments.”), Petitioner himself notes that it was Logan, not Schaffer,

3

who knew of the potential witnesses and elected not to use them during the trial. (See Doc.

4

68 at 67.) Petitioner calls Logan’s decision not to use this evidence “puzzling,” but, as the

5

PCR court noted, there were objectively reasonable tactical reasons not to pursue the

6

witnesses and evidence. For example, much of the proposed testimony was based on

7

rumors, reputations, and personal relationships rather than direct knowledge or was

8

cumulative to evidence already introduced during trial, such as evidence of drug use,

9

evidence that Ross had motive to lie, and evidence that someone else may have committed

10

the crime. (See Doc. 54-3 at 182, 184.)

11

Habeas relief is unavailable to Petitioner on this claim because the Court cannot say

12

that the state court unreasonably applied clearly established federal law or made an

13

unreasonable determination of the facts when it concluded that Petitioner’s trial team

14

reasonably investigated and prepared for the guilt phase of trial. Because Petitioner has

15

failed to meet the § 2254(d) threshold, evidentiary development in support of this claim is

16

also denied. See Pinholster, 563 U.S. at 185.

17

Claim 3 is denied.

18

3.

Claim 4

19

Petitioner next argues that his rights to “effective assistance of counsel, due process,

20

a fair trial, a reliable sentence, and freedom from cruel and unusual punishment were

21

violated because trial counsel failed to investigate, develop, and present exculpatory

22

evidence” during the penalty phase. (Doc. 40 at 79.) Petitioner argues (A) “[t]rial counsel

23

failed to present substantial mitigating evidence available from other witnesses and

24

experts,” and (B) “[t]he Arizona Supreme Court acted unreasonably by failing to grant

25

review of the Superior Court’s refusal to find ineffective assistance of counsel during the

26

post-conviction proceedings.” (Id.)

27

More specifically, Petitioner alleges that the jury was not adequately presented

28

information related to Petitioner’s personal life, including Petitioner’s paternal family

- 21 -

1

history, maternal family, upbringing, and adulthood, including his drug use, alcoholism,

2

past violent behavior, and suicidal ideation. (Doc. 40 at 85–105.) He further argues that

3

his counsel was ineffective for failing to investigate and present expert testimony, including

4

expert testimony regarding (1) the “probable effects” of Petitioner’s childhood trauma; (2)

5

fetal alcohol spectrum disorder; (3) hypofrontality and drug addiction; and (4) mental

6

health illnesses. (Id. at 106–73.)

7

Respondents argue that Petitioner raised this ineffective assistance of counsel claim

8

in state court but did not allege related violations of the right to due process, a fair trial, a

9

reliable sentence, or to be free from cruel and unusual punishment. (Doc. 51 at 69.)

10

Petitioner does not deny that he did not raise these additional arguments in state court (Doc.

11

68 at 89–90), and the Court finds that these claims were procedurally defaulted. Although

12

Petitioner generally asserts that he can overcome any procedural default under Martinez

13

and Schlup (Doc. 40 at 79), the Petition does not include argument or citation related to

14

“due process, a fair trial, a reliable sentence, and freedom from cruel and unusual

15

punishment” under Claim 4, and therefore this Court does not address these arguments.

16

Petitioner properly raised this ineffective assistance of counsel claim before the PCR

17

court, which issued the last reasoned state court decision on the issue. (Docs. 51-2 at 15–

18

22, 54-3 at 184–94, 54-8 at 138.) The state PCR court addressed this claim at length. (See

19

Doc. 54-3 at 187, 189–90, 192–93.) It first cataloged the extensive mitigation presented

20

with regard to Petitioner’s upbringing and family, which was contained in “1000 pages of

21

background materials” and culminated in a “visual depiction of defendant’s family

22

constellation and its mental, suicidal, substance abuse and violence-related behaviors.” (Id.

23

at 187.)

24

The court next assessed the expert testimony Petitioner alleges his counsel should

25

have presented and the testimony of the state’s rebuttal witnesses. (Id. at 188–94.) The

26

court concluded that “counsel made a reasonable, tactical choice not to allow defendant to

27

be examined by any State’s experts and to avoid introduction of damaging mental health

28

evidence and defendant’s statements.” (Id. at 193.)

- 22 -

1

Petitioner requests evidentiary development, including discovery, expansion of the

2

record, and a hearing, in support of this claim. (Doc. 73 at 42.) But because the PCR

3

court’s decision was not contrary to or an unreasonable application of clearly established

4

federal law under § 2254(d)(1), nor was it based on an unreasonable determination of facts

5

under § 2254(d)(2), Petitioner’s request for evidentiary development is denied. See

6

Pinholster, 563 U.S. at 185.
a.

7

Unreasonable Determinations of Fact

8

Petitioner alleges, in his reply,4 that the PCR court violated 28 U.S.C. § 2254(d)(2)

9

by “plainly misapprehend[ing] or misstat[ing] the record” when it denied this claim. (Doc.

10

68 at 94.) He argues, first, that the PCR court ignored parts of testimony offered by

11

Schaffer, who testified that she was tasked with putting together the mitigation presentation

12

but received insufficient guidance on how to do so. (Id. at 94–95.) Second, he asserts that

13

the Court gave too much credence to lead counsel Logan’s testimony. (Id. at 96–98.)

14

Finally, Petitioner alleges that the court did not give enough weight to the expert testimony

15

presented by PCR counsel. (Id. at 97–101.)

16

Petitioner does not point to specific errors of fact in the PCR court’s decision

17

regarding Logan’s testimony or the testimony of the expert witnesses at the PCR hearing.

18

Rather, Petitioner appears to argue that the Court should have weighed this testimony

19

differently, such as by affording more credibility to Schaffer’s testimony and less to

20

Logan’s testimony. (Doc. 68 at 94–97.) Logan, Petitioner’s first-chair attorney, testified

21

that he had limited specific recollection of Petitioner’s case (see, e.g., Doc. 51-4 at 11–12,

22

31), but agreed that he would have engaged in a “risk benefit analysis” regarding whether

23

to have a mental health expert testify in the penalty phase (Id. at 32–35). Schaffer,

24

Petitioner’s second-chair attorney, testified that she “wasn’t given much guidance”

25
4

26
27
28

Petitioner does not specifically articulate an argument under § 2254(d)(2) in his
Petition, but rather goes into great detail regarding this argument in his reply, giving
Respondents no opportunity to address his specific allegations. Raising an argument for
the first time in a reply brief generally subjects that claim to waiver. Cf., e.g., Delgadillo
v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) (“Arguments raised for the first time
in petitioner’s reply brief are deemed waived.”). Nevertheless, the Court will address this
claim.
- 23 -

1

regarding the penalty phase of trial, but believed, based on her review of relevant case law,

2

that introducing mental health testimony could have opened the door to detrimental mental

3

health evidence. (Doc. 51-4 at 57–61.) Although both attorneys indicated that they might

4

have approached the issue differently in hindsight, neither testified that the decision not to

5

pursue mental health evidence was uninformed or nontactical.

6

While a federal court “can disagree with a state court’s credibility determination,”

7

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), there is no basis to do so here. “[A] federal

8

court may not second-guess a state court’s fact-finding process unless, after review of the

9

state-court record, it determines that the state court was not merely wrong, but actually

10

unreasonable.” Taylor, 366 F.3d at 999. This Court cannot say that the PCR court was

11

unreasonable for relying on Logan’s testimony. Although Logan admitted to not always

12

having a specific memory of his work on Petitioner’s case, he drew on his common

13

practices over many years of trial work to complete any gaps in his specific recollection.

14

The PCR court was not obligated to reject, as Petitioner argues, “virtually all” of Logan’s

15

testimony only because he sometimes relied on his general recollection of his practice at

16

the time. Logan’s recollection was consistent with the trial court record, including that

17

counsel declined to call a mental health expert based on the trial court’s ruling that

18

Petitioner would have to submit to an interview with a state’s expert before the defense

19

expert could testify regarding his own interview of Petitioner. (See RT 1/17/03 at 17; RT

20

1/21/03 at 180.)

21

Furthermore, contrary to Petitioner’s argument, the PCR court did not improperly

22

discount parts of Schaffer’s testimony. Petitioner emphasizes that Schaffer was relatively

23

inexperienced. Counsel’s level of experience, however, is not determinative for purposes

24

of Strickland. The question under Strickland is not whether counsel was generally

25

experienced—it is whether counsels’ specific acts or omissions were reasonable under the

26

circumstances at the time. See Strickland, 466 U.S. at 690 (“A convicted defendant making

27

a claim of ineffective assistance must identify the acts or omissions of counsel that are

28

alleged not to have been the result of reasonable professional judgment.”). Schaffer and

- 24 -

1

Logan both indicated that the decision not to pursue mental health testimony during the

2

penalty phase was tactical. The PCR court, based on defense counsels’ testimony and a

3

review the record, reasonably concluded that counsel reasonably sought to avoid the

4

introduction of expert mental health evidence. (Doc. 54-3 at 186–87.)

5

Similarly, the PCR court detailed the expert testimony presented at the PCR hearing

6

and did not discount the content of that testimony. (Doc. 54-3 at 188–94.) Instead, after

7

considering the testimony at length, the court conducted a Strickland analysis by

8

determining whether failing to utilize expert testimony was “reasonable and a matter of

9

trial tactics and strategy.” (Id. at 192–93.)

10
11
12

Petitioner has not established that the PCR court made an unreasonable
determination of fact in violation of § 2254(d)(2).
b.

Unreasonable Applications of Federal Law

13

Petitioner next alleges that the PCR court’s decision “was also contrary to and an

14

unreasonable application of clearly established federal law” under § 2254(d)(1). (Doc. 68

15

at 101.) The Court disagrees.

16

Petitioner first faults the PCR court for noting that, due to a change in Arizona’s

17

capital sentencing scheme, “the standard of practice in Maricopa County in 2002-2003 for

18

the mitigation phase of capital cases was in a state of flux.” (Doc. 54-2 at 186.) This

19

factual observation, the truth of which is not in dispute, is not contrary to federal law.

20

Nothing in the PCR court’s decision indicates that it substituted the “standard of practice

21

in Maricopa County in 2002-2003” for the standard of practice for a reasonable attorney at

22

the time of Petitioner’s trial when conducting its Strickland analysis. The PCR court

23

considered the testimony of a standard of care expert who “based his opinion on the ABA

24

Guidelines” and stated that “[t]he proper standard for attorney performance is that of

25

reasonably effective assistance” before concluding that Petitioner’s counsel had acted

26

reasonably. (Doc. 54-3 at 186.) The court’s contextual reference to the standard of practice

27

in Maricopa County at the time of Petitioner’s trial is not sufficient to show that the court

28

misapplied clearly established federal law.

- 25 -

1

Petitioner next alleges that counsel did not sufficiently investigate the need for

2

expert testimony in the penalty phase. (Doc. 68 at 105–06.) The PCR court concluded that

3

Petitioner’s counsel “conducted an extensive investigation” that resulted in substantial

4

information regarding Petitioner and his family, and that counsels’ investigation “was

5

reasonable and does not constitute deficient performance.” (Doc. 54-3 at 187.) This was

6

not an unreasonable application of clearly established federal law.

7

The Supreme Court has held that “counsel has a duty to make reasonable

8

investigations or to make a reasonable decision that makes particular investigations

9

unnecessary.” See Strickland, 466 U.S. at 690–91. And when counsel has reason to believe

10

that “pursuing certain investigations would be fruitless or even harmful, counsel’s failure

11

to pursue those investigations may not later be challenged as unreasonable.” Id. at 691. In

12

this case, the PCR court considered the scope of counsels’ investigation, which delved

13

extensively into Petitioner’s family and personal history and included the advice of a

14

mental health expert. (Doc. 54-3 at 184–94.) Petitioner himself recognizes that his counsel

15

was aware of substantial information, including that Petitioner had suffered head injuries,

16

early childhood trauma, and drug abuse, and that Petitioner had been diagnosed with Anti-

17

Social Personality Disorder (“ASPD”) in the past. Furthermore, his counsel hired Dr.

18

Richard Rosengard, a psychiatrist, to analyze Petitioner’s mental health. The record

19

indicates that the PCR court was not unreasonable in concluding that counsel conducted a

20

reasonable investigation related to the penalty phase of trial.

21

Petitioner further argues that “counsel’s decision not to call Dr. Rosengard due to a

22

fear of opening the door to the admission of ASPD was not strategic in light of the fact that

23

counsel themselves opened the door to ASPD when they provided the State all of

24

Hampton’s past medical records, which contained information regarding the prior

25

diagnosis.” (Doc. 68 at 106.) Petitioner’s assertion is without merit. The PCR court noted

26

that defense counsel sought to avoid expert testimony on mental health issues. While

27

ASPD was referenced during the penalty phase, those brief references are not equivalent

28

to expert testimony regarding Petitioner’s mental health. The PCR court, citing the

- 26 -

1

testimony of counsel and Dr. Rosengard, noted that counsel carefully weighed whether to

2

call Dr. Rosengard before determining that calling him would pose too grave a risk. The

3

PCR court then concluded that counsels’ decision not to call Dr. Rosengard was “tactical”

4

in nature and not unreasonable. This Court cannot say that the PCR court unreasonably

5

applied clearly established federal law.

6

Petitioner next alleges that the PCR court was unreasonable in concluding that

7

Petitioner’s counsel was not deficient for failing to hire additional expert witnesses. (Doc.

8

68 at 107.) Specifically, he alleges that his counsel should have conducted a reasonable

9

investigation and then presented expert testimony regarding (1) the “probable effects” of

10

Petitioner’s childhood trauma; (2) fetal alcohol spectrum disorder; (3) hypofrontality and

11

drug addiction; and (4) mental health illnesses. (Id. at 106–61.)

12

The PCR court noted that the risk of calling other mental health experts was

13

substantially similar to the risk of calling Dr. Rosengard: presenting this evidence “would

14

have opened the door to the introduction of damaging mental health evidence” from the

15

state. (Doc. 54-3 at 192–93.) Counsel knew of Petitioner’s prior head injuries, his

16

extensive history of childhood trauma, his suicide attempts, and other information relevant

17

to his mental health history. Counsel conducted a reasonable investigation, and thus had

18

ample discretion to decide which, if any, experts to call on Petitioner’s behalf. See

19

Strickland, 466 U.S. at 690. The PCR court did not unreasonably apply clearly established

20

federal law when it concluded that counsel was reasonable for attempting to avoid opening

21

the door to expert testimony related to Petitioner’s mental health.

22

Finally, Petitioner faults the PCR court for concluding that he was not prejudiced

23

by any alleged errors. (Doc. 68 at 107.) Under Strickland, the question is whether “there

24

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

25

proceeding would have been different.” 466 U.S. at 694. The PCR court considered that

26

had Petitioner’s counsel introduced mental health testimony at trial, the state would have

27

countered with its own expert testimony, which could have included prior ASPD diagnoses

28

and Petitioner’s own statements. It then further considered “the totality of the mitigating

- 27 -

1

factors . . . compared against the totality of the aggravating factors and the circumstances

2

of this case.” (Doc. 54-3 at 194.) The PCR court concluded that there was no probability

3

that, absent any error, the jury would have imposed a life sentence. (Doc. 54-3 at 194.)

4

Petitioner murdered two individuals, one of whom was pregnant. The jury already heard

5

substantial mitigating evidence regarding Petitioner’s difficult childhood, family history,

6

and drug use. It is not reasonably likely that the jury would have reached a different

7

conclusion had Petitioner’s counsel submitted expert mental health testimony, and thus the

8

PCR court’s decision was not an unreasonable application of clearly established federal

9

law.

10
11
12

As Petitioner has not met the § 2254(d) hurdle established in Pinholster, he is not
entitled to evidentiary development to support this claim, and Claim 4 is denied.
4.

Claim 6

13

Petitioner alleges (A) prosecutorial misconduct in violation of his due process

14

rights, and (B) ineffective assistance of counsel based on counsel’s failure to challenge the

15

alleged misconduct. (Doc. 40 at 180.) The parties agree that these claims were not raised

16

in state court, and the Court finds that they were procedurally defaulted. Petitioner alleges

17

that he can overcome his default of these claims under Martinez and Schlup, but because

18

these claims are plainly without merit, the Court need not address these arguments. See 28

19

U.S.C. § 2254(b)(2).
a.

20

Prosecutorial Misconduct

21

A habeas petition alleging prosecutorial misconduct will be granted only when the

22

misconduct “so infect[ed] the trial with unfairness as to make the resulting conviction a

23

denial of due process.” Greer v. Miller, 483 U.S. 756, 765 (1987) (quoting Donnelly v.

24

DeChristoforo, 416 U.S. 637, 643 (1974)). A trial error is presumed to be harmless unless

25

the error had “substantial and injurious effect or influence in determining the jury’s

26

verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

27
28

The alleged misconduct includes numerous aspects of the state’s penalty-phase
closing argument.

Petitioner notes, for example, that the prosecutor characterized

- 28 -

1

Petitioner as “the harbinger of death” and “a monster” and used the phrase “urban

2

terrorism,” which Petitioner argues was highly inflammatory. Petitioner further argues that

3

the prosecutor improperly allied the jury with law enforcement and misstated the law

4

regarding mitigation.

5

The alleged errors occurred during closing arguments. Closing arguments are not

6

evidence and are presumed to carry less weight with the jury than the court’s instructions.

7

Boyde v. California, 494 U.S. 370, 384 (1990); Houston v. Roe, 177 F.3d 901, 909 (9th

8

Cir. 1999). Prosecutorial argument generally should not result in reversal where the trial

9

court instructed the jury that its decision is to be based solely upon the evidence, where the

10

defense did not object, where the comments were an “invited response,” or where there is

11

overwhelming evidence of guilt. See, e.g., Darden v. Wainwright, 477 U.S. 168, 182

12

(1986); Donnelly v. DeChristoforo, 416 U.S. 637, 640–45 (1974); Jeffries v. Blodgett, 5

13

F.3d 1180, 1191–92 (9th Cir. 1993); Hall v. Whitley, 935 F.2d 164, 165–66 (9th Cir. 1991).

14

In this case, the jury received the following instruction: “In their opening statements

15

and closing arguments the lawyer[s] have talked to [you] about the law and evidence. What

16

they said is not evidence. However, it may have help [sic] you to understand the law and

17

the evidence as it was presented. You must disregard any remark, statement or argument

18

that is not supported by the evidence or the law, as given to you by the Court.” (RT 1/23/03

19

at 108 (emphasis added).)

20

The prosecutor’s characterizations of both Petitioner and the concept of mitigation

21

were condemnable. See Comer v. Schriro, 480 F.3d 960, 988 (9th Cir. 2007) (condemning

22

prosecutor’s decision to characterize a defendant “a ‘monster’ and ‘filth,’ . . . [and] a

23

‘reincarnation of the devil.’”); see also United States v. Berry, 627 F.2d 193, 200 (9th Cir.

24

1980) (“A prosecutor should not misstate the law in closing argument.”). And the

25

prosecutor’s decision to attempt to paint the jury as on the same “side” as law enforcement

26

was also undesirable, at best. See Leavitt v. Arave, 383 F.3d 809, 834–35 (9th Cir. 2004)

27

(excoriating a prosecutor’s “link-in-the-chain-of-law-enforcement argument”). But this

28

Court cannot say that the prosecutor’s words in closing argument, particularly when paired

- 29 -

1

with the trial court’s instructions, resulted in a trial that “was so infected with unfairness

2

as to be a denial of due process.” See id. (“[W]e are unable to say that the error had a

3

‘substantial and injurious’ effect on the verdict.”). The jury was instructed that counsel’s

4

arguments were not evidence and to follow the statements of the law they had been given

5

in writing.

6

Petitioner has failed to establish prejudice. Claim 6A is denied on its merits.
b.

7

Ineffective Assistance of Counsel

8

Petitioner’s ineffective assistance of counsel claim is similarly without merit. The

9

decision whether and when to object during closing argument is generally a strategic one.

10

See United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (“Because many

11

lawyers refrain from objecting during opening statement and closing argument, absent

12

egregious misstatements, the failure to object during closing argument and opening

13

statement is within the ‘wide range’ of permissible professional legal conduct.”). Even if

14

counsel had objected, there is no reasonable likelihood that such an objection would have

15

affected the outcome. See Strickland, 466 U.S. at 694. As mentioned above, the jury was

16

properly instructed that arguments are not evidence, and that the statements of the law

17

provided by the court were controlling. Any objection would likely have been futile.

18

Petitioner has failed to establish prejudice under Strickland.

19
20

Claim 6B is denied on its merits.
5.

Claim 8

21

Petitioner alleges that his rights to “due process, equal protection, a jury trial,

22

effective assistance of counsel, and a reliable sentence [were violated] due to the presence

23

on Mr. Hampton’s penalty jury of an individual who could not be impartial and should

24

have been challenged for cause.” (Doc. 40 at 195.) He further alleges that counsel should

25

have elected to strike the juror in question, Rodney Rego, from the jury. The parties agree

26

that this claim was not raised in state court, and the Court finds that it is procedurally

27

defaulted. Petitioner alleges, however, that he can overcome this default under Martinez

28

- 30 -

1

and Schlup. Because this claim is plainly without merit, the Court will not address these

2

arguments. See 28 U.S.C. § 2254(b)(2).

3

Petitioner alleges that juror Rego should have been challenged for cause due to the

4

“implied bias” resulting from his former employment as a police officer and work as a

5

probation officer. Even assuming it could be deemed “unreasonable” for an attorney not

6

to infer bias based solely on a prospective juror’s occupation, had counsel inferred such a

7

bias and challenged the juror for cause, Rego’s formal affiliations with law enforcement

8

do not per se disqualify him from jury service. See, e.g., United States v. Daly, 716 F.2d

9

1499, 1507 (9th Cir. 1983) (“The mere fact that a person was employed on a police force

10

is not per se a disqualification for service on a jury in a criminal trial.”); United States v.

11

Le Pera, 443 F.2d 810, 812 (9th Cir. 1971) (“Bias and prejudice will not be presumed from

12

the fact that a juror is engaged in law enforcement work.”); see also Porter v. Zook, 898

13

F.3d 408, 445 (4th Cir. 2018) (“Pernell Treakle’s occupation as a deputy sheriff would not

14

provide a basis for finding implied bias.”).

15

Furthermore, Petitioner does not allege, and nothing in the record indicates, that

16

counsel had reason to believe that Rego was actually biased during voir dire. See Fields v.

17

Brown, 503 F.3d 755, 767 (9th Cir. 2007) (“Actual bias is typically found when a

18

prospective juror states that he can not be impartial, or expresses a view adverse to one

19

party’s position and responds equivocally as to whether he could be fair and impartial

20

despite that view.”). It was therefore not unreasonable for Petitioner’s counsel to refrain

21

from striking Rego from the jury.

22

Finally, Petitioner also requests evidentiary development in support of this claim.

23

(Doc. 73 at 56.) Evidentiary development is not necessary where the face of the record

24

precludes relief.

25

development is denied. Claim 8 is denied on its merits.

Totten, 137 F.3d at 1176.

Petitioner’s request for evidentiary

26

B.

27

Petitioner alleges two additional claims of ineffective assistance of counsel: Claims

28

Remaining Ineffective Assistance of Counsel Claims

10 and 11.

- 31 -

1

1.

Claim 10

2

Petitioner alleges that his trial counsel “failed to object to the restraints placed on

3

Mr. Hampton and appellate counsel failed to raise the issue on appeal.” (Doc. 40 at 205.)

4

The parties agree that this claim was not raised in state court (Docs. 40 at 205, 51 at 135),

5

and the Court finds that it is procedurally defaulted. Petitioner asserts that he can overcome

6

this default under Martinez.

7

Because Claim 10 is not “substantial” for purposes of Martinez, it remains

8

procedurally defaulted. See Cook, 688 F.3d at 607, 610. “Before a court may order the

9

use of physical restraints on a defendant at trial, ‘the court must be persuaded by compelling

10

circumstances that some measure is needed to maintain security of the courtroom,’ and ‘the

11

court must pursue less restrictive alternatives before imposing physical restraints.’”

12

Gonzalez v. Pliler, 341 F.3d 897, 901 (9th Cir. 2003) (quoting Duckett v. Godinez, 67 F.3d

13

734, 748 (9th Cir. 1995)). “To demonstrate that his shackling at trial amounted to a

14

constitutional violation, Petitioner must demonstrate: (1) that he was ‘physically restrained

15

in the presence of the jury,’ (2) that ‘the shackling was seen by the jury,’ (3) that the

16

‘physical restraint was not justified by state interests,’ and (4) that ‘he suffered prejudice

17

as a result.’” Cox v. Ayers, 613 F.3d 883, 890 (9th Cir. 2010). To establish prejudice,

18

Petitioner must show the error had a “substantial and injurious effect or influence in

19

determining the jury’s verdict.” Brecht, 507 U.S. at 623.

20

Petitioner acknowledges that it is unclear whether the stun belt Petitioner wore was

21

visible to the jurors and does not point to any indication that the jury noticed or was affected

22

by the stun belt. Petitioner alleges, rather, that it is “premature” for him to be required to

23

make these showings. (Doc. 68 at 176.) Petitioner has not, however, requested evidentiary

24

development related to this claim, and the existing record is insufficient to support

25

Petitioner’s speculation that his trial may have been affected by his counsel’s failure to

26

object to the stun belt.

27
28

Because this claim lacks merit, Petitioner cannot establish cause or prejudice under
Martinez. Claim 10 remains defaulted and is denied.

- 32 -

1

2.

Claim 11

2

Petitioner alleges that his “constitutional rights to effective assistance of counsel,

3

due process, a fair trial, a reliable sentence, and freedom from cruel and unusual

4

punishment were violated because trial counsel failed to investigate, develop, and present

5

exculpatory evidence.” (Doc. 40 at 211.)

6

This claim, which significantly overlaps Claim 3, appears to be derived from a

7

similar claim Petitioner raised in state court. Before the PCR court, Petitioner argued,

8

based on Arizona Rule of Criminal Procedure 32.1(e), that “the testimony of ‘Witness’ and

9

the recanted testimony of Monica [Majors] are newly discovered evidence” that, had they

10

been discovered prior to trial, would have changed the outcome. (Doc. 51-3 at 159–60.)

11

The PCR court rejected these arguments. It concluded that Witness “was known to . . .

12

counsel before trial” and therefore her proposed testimony was not newly discovered

13

evidence for purposes of Rule 32.1(e). It then found that although Majors’ testimony was

14

newly discovered evidence, it would not have “substantially undermine[d] critically

15

significant testimony” for purposes of Rule 32.1(e)(3). (Id.) In his petition for review to

16

the Arizona Supreme Court, Petitioner alleged that the PCR court’s denial of a hearing on

17

this claim was “error.” (Doc. 54-3 at 264–65.) Petitioner did not allege the ineffective

18

assistance of his counsel or cite any federal law in support of this argument. (Id.)

19

To the extent Petitioner now alleges that his counsel was ineffective for failing to

20

call Witness during the guilt phase of his trial, this argument is included as part of Claim

21

3, addressed above. The remainder of Claim 11 was not properly presented in state court

22

and is therefore procedurally defaulted. Petitioner alleges that he can overcome any

23

procedural default under Martinez. The Court disagrees.

24

First, Martinez can only revive defaulted claims of ineffective assistance of counsel.

25

Pizzuto, 783 F.3d at 1176–77. It therefore cannot be used to excuse the default of

26

Petitioner’s new, generalized claims that his rights to “due process, a fair trial, a reliable

27

sentence, and freedom from cruel and unusual punishment” were violated. Second, to

28

revive a defaulted claim of ineffective assistance of counsel under Martinez, a petitioner

- 33 -

1

must show that the underlying constitutional violation is “substantial.” See Cook, 688 F.3d

2

at 607, 610. Petitioner does not adequately explain how his trial counsel was ineffective

3

for generally “fail[ing] to learn that” Majors “did not hear Hampton confess.” (Doc. 68 at

4

177.) Majors allegedly recanted her testimony that Hampton confessed to the crimes after

5

the trial. Petitioner’s trial counsel was not ineffective for failing to discover that Majors

6

had recanted before she had done so.

7
8
9
10
11
12

Petitioner cannot establish cause or prejudice under Martinez. Claim 11 thus
remains procedurally defaulted and is denied.
C.

Remaining Defaulted Claims

Petitioner raises seven additional claims that he did not previously present in state
court: Claims 5, 7, 9, 12, 29, 37, and 39.
1.

Claim 5

13

Petitioner asserts that “[t]he presentation of evidence during both the guilt and

14

penalty phases of his trial that Mr. Hampton was affiliated with the Aryan Brotherhood

15

violated Mr. Hampton’s constitutional right to free association, free speech, due process, a

16

fair trial, a reliable sentence, effective assistance of counsel, and freedom from cruel and

17

unusual punishment.” (Doc. 40 at 174.) Petitioner asserts that this claim was not raised in

18

state court, but that he can overcome its default under Martinez. (Id.) The state responds

19

that Petitioner raised “a portion of this claim” in state court. (Doc. 51 at 101.) The Court

20

agrees with Petitioner that this claim is procedurally defaulted.

21

In state court, Petitioner did not challenge the introduction of Aryan Brotherhood

22

evidence during the guilt phase of his trial, but Petitioner did allege that his counsel on

23

direct appeal was ineffective for failing to challenge the introduction of Aryan Brotherhood

24

evidence during the penalty phase of his trial. (Doc. 51-2 at 24.) Petitioner raised this

25

claim in his PCR petition, and the PCR court rejected this claim, reasoning that Petitioner’s

26

counsel was not ineffective, and Petitioner was not prejudiced by any error. (Doc. 51-3 at

27

160–61.) Petitioner did not, however, raise this issue in his petition for review before the

28

Arizona Supreme Court. (See Docs. 54-3 at 219; 40 at 174 n.24.)

- 34 -

1

Because Petitioner failed to raise this claim in his petition for review, the Court finds

2

that this claim is procedurally defaulted. See Davis v. Silva, 511 F.3d 1005, 1008 (9th Cir.

3

2008) (“Exhaustion requires that a petitioner ‘fairly present[]’ his federal claims to the

4

highest state court available.” (emphasis added)). Furthermore, Martinez cannot excuse

5

this default. Martinez applies only to ineffective assistance of trial counsel claims that

6

were not raised at their first opportunity due to ineffective assistance of post-conviction

7

counsel. Davila, 137 S. Ct. at 2065–66. It does not extend to the ineffective assistance of

8

appellate counsel claim that Petitioner raised during PCR proceedings but failed to raise

9

before the Arizona Supreme Court.

10
11

Claim 5 is denied.
2.

Claims 7, 9, 12, 29, 37, and 39

12

Although Petitioner acknowledges that Claims 7, 9, 12, 29, 37, and 39 are

13

procedurally defaulted, he argues that he can establish cause and prejudice to excuse their

14

default under Martinez. The Court disagrees.

15

Martinez applies only to defaulted claims of ineffective assistance of trial counsel.

16

See Davila, 137 S. Ct. at 2065–66 (noting that Martinez “applies only to claims of

17

‘ineffective assistance of counsel at trial’ and only when, ‘under state law,’ those claims

18

‘must be raised in an initial-review collateral proceeding’”); Pizzuto, 783 F.3d at 1176–77.

19

Unlike allegations of ineffective assistance of trial counsel, claims that could have been

20

raised on direct appeal are not subject to the “limited qualification to Coleman” established

21

in Martinez, 566 U.S. at 15.

22
23

The following claims, which do not allege ineffective assistance of counsel, could
have been presented to Arizona Supreme Court:

24

 In Claim 7, Petitioner asserts that he “was deprived of his right to due process of

25

law and a reliable sentence . . . because his capital trial and subsequent proceedings

26

were conducted by, and his conviction and sentences were reviewed by, judicial

27

officers subject to retention elections for retaining their offices and who therefore

28

could not be impartial in his case.” (Doc. 40 at 188.)

- 35 -

1

 In Claim 9, Petitioner alleges that “his right to a fair and impartial jury was violated

2

when the trial court refused to excuse four penalty phase jurors who had seen a

3

newspaper article about his case.” (Doc. 40 at 259.)

4

 In Claim 12, Petitioner alleges that he was “was deprived of his rights to a fair and

5

impartial jury, a fair sentencing proceeding, due process, effective assistance of

6

counsel,5 freedom from cruel and unusual punishment, and a reliable sentence”

7

based on Lockett v. Ohio, 438 U.S. 586, 605 (1978) because (1) he suffered from

8

mental health issues; (2) the jury heard evidence that Petitioner was associated with

9

the Aryan Brotherhood; and (3) the jury heard evidence from a “government

10

informant.” (Doc. 40 at 213–18.)

11

 In Claim 29, Petitioner argues that the trial court sent the jury a “coercive

12

instruction” in response to a question, which violated his “Sixth and Fourteenth

13

Amendment rights to a fair trial and due process.” (Doc. 40 at 298.)

14

 In Claim 37, Petitioner asserts that “Arizona’s requirement that mitigating factors

15

be proved by a preponderance of the evidence unconstitutionally prevents the jury

16

from considering mitigating evidence, in violation of the Eighth and Fourteenth

17

Amendments to the United States Constitution.” (Doc. 40 at 315.)

18

 Finally, in Claim 39, Petitioner alleges cumulative error. (Doc. 40 at 319.)

19

Petitioner did not raise these claims in state court, nor did he raise his appellate

20

counsel’s failure to assert these claims as independent ineffective assistance of counsel

21

claims. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (“[A]n ineffective-assistance-

22

of-counsel claim asserted as cause for the procedural default of another claim can itself be

23

procedurally defaulted . . . .”); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988).

24

Because these claims remain procedurally defaulted, they are not subject to AEDPA review

25
26
5

27
28

Petitioner does not support his cursory reference to ineffective assistance of
counsel in Claim 12 with argument or citation to authority. Rather, at most, he reasserts
the ineffective assistance of his counsel “in developing and presenting impeachment
evidence” as articulated in other claims. (Doc. 40 at 217.) The Court therefore does not
address this subclaim.
- 36 -

1

and are denied. Accordingly, Petitioner’s requests for evidentiary development in support

2

of Claims 12 and 27 are also denied.

3

D.

4

Claims 5, 13 through 28, and 30 through 36 were previously adjudicated, in whole or

5

in part, on the merits by Arizona state courts. As set forth below, the the state courts’

6

adjudication of these claims was not contrary to or an unreasonable application of clearly

7

established federal law or based on an unreasonable determination of the facts under §

8

2254(d).

9

Petitioner’s Remaining Claims

1.

Claim 13

10

Petitioner was convicted on May 2, 2002, and was originally scheduled for

11

sentencing before the trial judge. On June 24, 2002, prior to Petitioner’s sentencing, the

12

United States Supreme Court invalidated Arizona’s death penalty scheme under which

13

judges rather than juries found the facts making a defendant eligible for the death penalty.

14

Ring v. Arizona, 536 U.S. 584, 609 (2002). On August 1, 2002, Arizona amended its death

15

penalty statutes to comply with Ring. In light of these changes, the trial court empaneled

16

a new jury to make Petitioner’s sentencing decision. The aggravation phase of Petitioner’s

17

trial began on January 8, 2003. The second jury sentenced Petitioner to death.

18

Petitioner alleges that applying the state’s amended death penalty statutes to his case

19

violated the ex post facto doctrine. (Doc. 40 at 220.) Petitioner raised this claim on direct

20

appeal. In denying the claim, the Arizona Supreme Court cited its opinion in State v. Ring,

21

204 Ariz. 534, 547 ¶¶ 23–24, 65 P.3d 915, 928 (2003), in which the court held that the Ex

22

Post Facto Clause did not prohibit the resentencing of capital defendants after Ring v.

23

Arizona because the amendments were procedural in nature and did not place defendants

24

in jeopardy of a greater punishment. See Hampton, 213 Ariz. at 174 ¶ 24, 140 P.3d at 957.

25

The ex post facto doctrine prohibits a state from “retroactively alter[ing] the

26

definition of crimes or increas[ing] the punishment for criminal acts.” Collins v.

27

Youngblood, 497 U.S. 37, 43 (1990). “[A]ny statute which punishes as a crime an act

28

previously committed, which was innocent when done; which makes more burdensome the

- 37 -

1

punishment for a crime, after its commission, or which deprives one charged with crime of

2

any defense available according to law at the time when the act was committed, is

3

prohibited as ex post facto.” Dobbert v. Florida, 432 U.S. 282, 292 (1977) (quoting Beazell

4

v. Ohio, 269 U.S. 167, 169–70 (1925)).

5

A law that is merely procedural, however, does not violate the ex post facto doctrine.

6

Id. at 293, 297 (rejecting a claim that an amendment to Florida’s death penalty scheme was

7

an ex post facto violation because the changes in Florida’s statute were “clearly

8

procedural”). Procedural changes “simply alter[] the methods employed in determining

9

whether the death penalty [may] be imposed” but do not affect “the quantum of punishment

10

attached to the crime.” Id. at 293–94.

11

The post-Ring procedural changes in Arizona’s death penalty are not ex post facto

12

laws. See Schriro v. Summerlin, 542 U.S. 348, 353–54 (2004) (“Ring’s holding is properly

13

classified as procedural.”).

14

“addressed whether the Ring decision was procedural rather than substantive; it did not

15

address whether Arizona’s new death penalty statute was procedural or substantive.” (Doc.

16

40 at 221.) He argues that the legislature responded to Ring by enacting a “more onerous”

17

statute. (Id.) Petitioner ignores, however, that the maximum punishment for his crimes—

18

the first-degree murder of two people—did not change when the death penalty statute was

19

enacted. See Ring, 204 Ariz. at 544 ¶ 7, 65 P.3d at 925 (noting that first degree murder has

20

been punishable by death in Arizona since as early as 1913).

Petitioner distinguishes Summerlin by arguing that it

21

The statute in place at the time Petitioner committed the murders and the statute

22

enacted after Ring provided for the same quantum of punishment. While Ring invalidated

23

the procedure by which the death penalty was imposed in Arizona, it did not eliminate the

24

death penalty as a possible sentence for first-degree murder. Accordingly, the Arizona

25

Supreme Court’s rejection of this claim was neither contrary to nor an unreasonable

26

application of clearly established federal law.

27
28

Claim 13 is denied.
2.

Claim 14

- 38 -

1

Petitioner argues that the state violated his “constitutional right to due process, a fair

2

trial, effective assistance of counsel, and freedom from cruel and unusual punishment” by

3

failing to “provide a notice of aggravating circumstances or submit the aggravating

4

circumstances for a probable cause hearing.” (Doc. 40 at 226.) Petitioner raised all but

5

one of these allegations on direct appeal. 6

6

The Arizona Supreme Court summarily dismissed Petitioner’s due process and

7

related state statutory claim and did not address Petitioner’s “fair trial” or “effective

8

assistance of counsel” arguments. The court concluded that “Hampton received notice of

9

the aggravating circumstances eight months before the aggravation phase of his trial and

10

does not claim any prejudice from the fact that the notice came after conviction.” Hampton,

11

213 Ariz. at 175 ¶ 28, 140 P.3d at 958. This decision is not contrary to, or an unreasonable

12

application of, clearly established federal law.

13

In Ring, 536 U.S. at 609, the Supreme Court found that Arizona’s aggravating

14

factors are an element of the offense of capital murder. As Petitioner notes, the Court has

15

held that facts constituting the elements of an offense must be charged in a federal

16

indictment. See Jones v. United States, 526 U.S. 227, 243 n.6 (1999) (“[U]nder the Due

17

Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth

18

Amendment, any fact (other than prior conviction) that increases the maximum penalty for

19

a crime must be charged in an indictment, submitted to a jury, and proven beyond a

20

reasonable doubt.”). The Court has not, however, addressed whether this requirement

21

extends to the states. See Apprendi v. New Jersey, 530 U.S. 466, 477 n.3 (2000) (declining

22

to address “the indictment question”). The Arizona Supreme Court’s decision is thus not

23

an unreasonable application of “clearly established” federal law under § 2254(d)(1). See

24

Wright, 552 U.S. at 126.

25
26
27
28

6

Petitioner did not specifically allege in state court that the state’s failure to provide
him notice of the aggravating circumstances denied him freedom from cruel and unusual
punishment, nor does he support this specific allegation in his Petition before this Court.
Petitioner makes similarly cursory references to various constitutional provisions in Claims
15 and 19 through 24. The Court does not address defaulted sub-claims that Petitioner has
not adequately supported with argument or citation.
- 39 -

1

Petitioner offers several related arguments, including that Arizona entitles him to an

2

evidentiary hearing under Arizona Rule of Criminal Procedure 5.4(a), and that the state’s

3

failure to afford him this hearing deprived him of his “state-created, constitutionally

4

protected liberty interest in the fair administration of state procedures governing the

5

aggravating circumstances in his case.” (Doc. 40 at 227.) Even assuming that this argument

6

is sufficiently related to the arguments Petitioner fairly presented to the state court to avoid

7

procedural default, Petitioner does not allege that he was deprived a probable cause hearing

8

regarding whether “an offense ha[d] been committed and that the defendant committed it.”

9

Ariz. R. Crim. P. 5.4(a). Petitioner has not shown that Arizona has established a right,

10

redressable under the federal constitution, to a probable cause hearing regarding individual

11

aggravating factors.

12

Finally, Petitioner alleges that his counsel was inherently ineffective due to their

13

inability to know which aggravating factors the state would eventually charge. This claim

14

is purely speculative, and Petitioner cannot show that he was prejudiced for purposes of

15

Strickland. This claim is thus without merit.

16
17

Claim 14 is denied.
3.

Claim 15

18

Petitioner argues that his rights “to due process, a fair trial, effective assistance of

19

counsel, freedom from cruel and unusual punishment, and an impartial jury” were violated

20

“[b]y having a different jury sit for [his] penalty-phase than during his guilt-phase.” (Doc.

21

40 at 233.) Primarily, Petitioner asserts that the sentencing jury “was deprived of evidence

22

from the guilt trial.” (Id. at 234.)

23

Petitioner raised this claim, in pertinent part, before the Arizona Supreme Court,

24

which concluded that Petitioner had not identified “any evidence from the guilt phase that

25

would have been helpful to the aggravation/penalty jury, nor does he claim he was

26

prevented from presenting any such evidence to that jury.” Hampton, 213 Ariz. at 175 ¶

27

30, 140 P.3d at 958. The court’s decision was not contrary to or an unreasonable

28

application of clearly established federal law.

- 40 -

1

Petitioner is correct that a defendant is entitled to have a factfinder “take[] into

2

consideration all circumstances before it from both the guilt-innocence and the sentence

3

phases of the trial.” See Stringer v. Black, 503 U.S. 222, 230 (1992) (quoting Zant v.

4

Stephens, 462 U.S. 862, 872 (1983)). The jury did so here. In addition to readmitting all

5

the same exhibits that were introduced during the guilt phase (RT 1/07/03 at 35–38), the

6

parties introduced, examined, and cross examined nearly all the same witnesses in the

7

penalty phase. The record indicates that the trial court intended to ensure that the second

8

jury would have substantially the same picture of the case as the guilt-phase jury. (RT

9

01/06/03 at 53:6–24.) The similarity between the transcripts of both presentations indicates

10

that the court succeeded. Petitioner’s counsel had ample opportunity to show the second

11

jury any information relevant to Petitioner’s sentence, and he cannot establish that his

12

rights were violated by this procedure. Cf. Morgan v. Illinois, 504 U.S. 719, 725–26 (1992)

13

(noting that there is not one right way for a state to set up its capital sentencing scheme).

14

Furthermore, any error was not structural. See United States v. Gonzalez-Lopez,

15

548 U.S. 140, 148 (2006) (trial errors “‘occur[] during presentation of the case to the jury’

16

and their effect may ‘be quantitatively assessed in the context of other evidence presented

17

in order to determine whether [they were] harmless beyond a reasonable doubt’” (quoting

18

Arizona v. Fulminante, 499 U.S. 279, 307–08 (1991))). Just as the Arizona Supreme Court

19

noted, Petitioner does not identify any specific evidence introduced during the guilt phase

20

of his trial, but not reintroduced during the penalty phase of his trial, that he believes would

21

have benefited him. He thus was not prejudiced by any alleged error. The Arizona

22

Supreme Court was not unreasonable in denying this claim.

23
24

Claim 15 is denied.
4.

Claim 16

25

Petitioner argues that his sentencing proceeding (1) “was an impermissible attempt

26

to increase the sentences applicable” to him, and (2) “supplemented the original jury

27

verdict” in violation of the Double Jeopardy Clause. (Doc. 40 at 241–47.) Petitioner raised

28

this claim on direct appeal, and the Arizona Supreme Court concluded that empaneling a

- 41 -

1

second jury did not violate the Double Jeopardy Clause. Hampton, 213 Ariz. at 175–76 ¶

2

33, 140 P.3d at 958–59 (citing Ring, 204 Ariz. at 548–49 ¶¶ 29–32, 65 P.3d at 929–30 and

3

State v. Anderson, 210 Ariz. 327, 348 ¶ 87, 111 P.3d 369, 390 (2005)). This conclusion is

4

not contrary to or an unreasonable application of clearly established federal law.

5

The Double Jeopardy Clause of the Fifth Amendment protects against “a second

6

prosecution for the same offense” after conviction and against multiple punishments for

7

the same offense. Schiro v. Farley, 510 U.S. 222, 229–30 (1994). The Supreme Court has

8

held that the sentencing phase of a capital case is not a successive prosecution for double

9

jeopardy purposes. See id. at 230–32 (“The state is entitled to ‘one fair opportunity’ to

10

prosecute a defendant . . ., and that opportunity extends not only to prosecution at the guilt

11

phase, but also to present evidence at an ensuing sentencing proceeding.” (citation

12

omitted)). “Aggravating circumstances are not separate penalties or offenses, but are

13

‘standards to guide the making of [the] choice’s between the alternative verdicts of death

14

and life imprisonment.” Poland v. Arizona, 476 U.S. 147, 156 (1986) (quoting Bullington

15

v. Missouri, 451 U.S. 430, 438 (1981)). No clearly established federal law holds that

16

empaneling a second jury for sentencing implicates the Double Jeopardy Clause. The

17

second jury’s decision to sentence Petitioner to death based on his conviction did not

18

increase the applicable sentence nor did it supplement the verdict.

19

In support of this claim, Petitioner echoes the arguments he makes under Claim 13,

20

in which he argues that the ex post facto doctrine barred his death sentence due to the

21

timing of the Supreme Court’s Ring decision. As noted above, Ring did not change the

22

consequences the state established for Petitioner’s crimes, and a fortuitous timing of the

23

lapse between the Ring decision and the Arizona legislature’s amendment to the death

24

penalty statutes did not entitle Petitioner to an automatic life sentence. Cf. Dobbert, 432

25

U.S. at 297 (denying a petitioner’s “highly technical” and “sophistic” claim that “there was

26

no ‘valid’ death penalty in effect in Florida as of the date of his actions” due to the Supreme

27

Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972)).

28

Claim 16 is denied.

- 42 -

5.

1

Claim 17

2

Petitioner argues that jurors were arbitrarily removed from his jury during the “death

3

qualification” process. (Doc. 40 at 248.) The Arizona Supreme Court concluded that “[t]he

4

United States Supreme Court has long held that the death qualification of juries is

5

constitutional.”

6

Wainwright v. Witt, 469 U.S. 412, 424–25 (1985)).

Hampton, 213 Ariz. at 172–73 ¶ 14, 140 P.3d at 955–56 (citing

7

The Arizona Supreme Court’s conclusion is not an unreasonable application of or

8

contrary to clearly established federal law. See Lockhart v. McCree, 476 U.S. 162, 175–

9

76 (1986) (“‘Death qualification,’ . . . is carefully designed to serve the State’s concededly

10

legitimate interest in obtaining a single jury that can properly and impartially apply the law

11

to the facts of the case at both the guilt and sentencing phases of a capital trial.”). Removing

12

jurors who do not believe they can follow the law is not arbitrary, and thus removing jurors

13

who do not believe they can follow the law regarding the death penalty due to their moral

14

or personal beliefs is not arbitrary. See id. at 176.

15

Because Petitioner has failed to meet the § 2254(d) threshold, he is not entitled to

16

the evidentiary development he has requested in support of this claim. Claim 17 is denied.
6.

17

Claim 18

18

Petitioner asserts that “[a]pplying the fetal manslaughter statute to the facts of this

19

case violates Mr. Hampton’s right to due process, a fair trial, effective assistance of

20

counsel, freedom from cruel and unusual punishment, and the Ex Post Facto Clause.”

21

(Doc. 40 at 256.) In his reply, Petitioner further argues the Arizona Supreme Court’s

22

interpretation of the state statute governing fetal manslaughter violated the rule of lenity,

23

“rendering the statute void for vagueness,” and failed to provide adequate notice. (Doc. 68

24

at 190–93.)

25

Respondents argue that this issue was not raised in state court despite Petitioner’s

26

citations to the federal constitution in his opening brief on direct appeal to the Arizona

27

Supreme Court. (Doc. 51 at 166.) Petitioner’s opening brief states that the trial court’s

28

interpretation of Arizona’s fetal manslaughter statute, A.R.S. § 13-1103, violated his “right

- 43 -

1

to a fair trial and due process” and cites to the federal constitution. (Doc. 51-1 at 87–88.)

2

To the extent Petitioner now seeks to raise broader claims related to the Ex Post Facto

3

Clause, cruel and unusual punishment, and ineffective assistance of counsel, those claims

4

were not presented in state court, and Petitioner does not allege he can overcome their

5

procedural default.

6

Assuming, arguendo, that Petitioner’s remaining due process claim was fairly

7

presented in state court, it is without merit. See 28 U.S.C. § 2254(b)(2). At the time of the

8

crimes, Arizona’s fetal manslaughter statute read: “A person commits manslaughter by . .

9

. [k]nowingly or recklessly causing the death of an unborn child at any stage of its

10

development by any physical injury to the mother of such child which would be murder if

11

the death of the mother had occurred.” A.R.S. § 13-1103(A)(5) (1993). Petitioner argued

12

that this statute was not intended to apply when the mother and fetus were both killed. The

13

Arizona Supreme Court concluded that the statute, though “not worded felicitously,” was

14

“plainly intended to protect the life of the fetus” regardless of whether the mother also died.

15

Hampton, 213 Ariz. at 174 ¶ 23, 140 P.3d at 957 (“It would . . . be illogical to interpret the

16

statute as treating a murderer who successfully kills both mother and unborn child more

17

favorably than a murderer who manages to kill only the unborn child.”).

18

State law error is generally not reviewable in habeas proceedings but may implicate

19

federal due process protections if the error is so prejudicial that it renders the defendant’s

20

trial fundamentally unfair. See Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009);

21

see also Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (“A writ of habeas corpus

22

. . . is unavailable for alleged error in the interpretation or application of state law.”). This

23

Court cannot say that the state court’s interpretation of Arizona law was so arbitrary or

24

irrational that it violated Petitioner’s right to due process.

25
26

Claim 18 is denied.
7.

Claim 19

27

Petitioner argues that “[c]onditioning the admissibility of Mr. Hampton’s expert

28

testimony on Mr. Hampton speaking to the state’s expert violated his right to due process,

- 44 -

1

freedom from self-incrimination, fair trial, effective assistance of counsel, and freedom

2

from cruel and unusual punishment.” (Doc. 40 at 259.) Petitioner raised a majority of this

3

argument on direct appeal.

4

At trial, Petitioner’s counsel retained Dr. Rosengard as a mental health expert. Dr.

5

Rosengard interviewed Petitioner.

The state then filed a motion to preclude Dr.

6

Rosengard’s testimony, arguing that Petitioner could not present mental health testimony

7

unless the state’s expert, Dr. Bayless, could also interview Petitioner. Petitioner responded

8

that he had Fifth and Sixth Amendment rights not to submit to the state’s proposed

9

interview. The trial court concluded that if Petitioner asserted his Fifth Amendment right

10

against self-incrimination, he would then be limited to presenting expert testimony

11

“without reference to the interview or any opinion based on the interview” unless the state’s

12

expert could also perform an interview. (RT 1/13/03 at 108.) Petitioner elected to forgo

13

an interview with Dr. Bayless (RT 1/17/03 at 17), and ultimately elected not to call Dr.

14

Rosengard (RT 1/21/03 at 180).

15

On direct appeal, the Arizona Supreme Court concluded that a trial court may

16

“preclude a capital defendant from presenting mental health expert testimony as mitigation

17

evidence if the defendant refuses to submit to an examination by the State’s mental health

18

expert.” Hampton, 213 Ariz. at 178 ¶ 44, 140 P.3d at 961. This conclusion was not

19

contrary to or an unreasonable application of clearly established federal law.

20

“[A] defendant who asserts a mental status defense lacks a Fifth Amendment right

21

to remain silent regarding the mental status that he has placed at issue.” Pawlyk v. Wood,

22

248 F.3d 815, 825 (9th Cir. 2001) (citing Buchanan v. Kentucky, 483 U.S. 402, 422–23

23

(1987); Estelle v. Smith, 451 U.S. 454, 465 (1981)). Petitioner’s right to avoid self-

24

incrimination was therefore not implicated.

25

To establish a due process violation, Petitioner would need to show that his trial was

26

fundamentally unfair. See Colley v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986). The trial

27

court did not prevent Petitioner from introducing mental health testimony. Rather, it put

28

Petitioner on notice that it would allow the state to rebut any such evidence. See Buchanan,

- 45 -

1

483 U.S. at 422–23 (“[I]f a defendant requests such an evaluation or presents psychiatric

2

evidence, then, at the very least, the prosecution may rebut this presentation with evidence

3

from the reports of the examination that the defendant requested.”). Petitioner did not

4

receive a fundamentally unfair trial.

5
6

Because the state court’s decision was not contrary to or an unreasonable application
of federal law, Claim 19 is denied.
8.

7

Claim 20

8

Petitioner asserts that the admission of “prior bad acts” during the penalty phase of

9

his trial violated his rights to “due process, a fair trial, effective assistance of counsel, and

10

freedom from cruel and unusual punishment.” (Doc. 40 at 264.) Petitioner raised a

11

majority of this claim on direct appeal.

12

During the penalty phase of trial, Petitioner offered mitigation evidence that

13

included, inter alia, his difficult upbringing, love of family, and penchant for protecting

14

others. (See RT 1/21/03 at 11–27.) In rebuttal, the state called Petitioner’s former

15

girlfriend, Monica Majors, who testified that Petitioner had engaged in violent and

16

threatening behavior. (RT 1/23/03 at 19–28.) On direct appeal, the Arizona Supreme Court

17

concluded that the trial court did not abuse its discretion by allowing the testimony:

18

“Majors’ testimony regarding Hampton’s abusive treatment of her and his brother directly

19

rebutted this mitigation evidence and was therefore relevant to the issue of mitigation.”

20

Hampton, 213 Ariz. at 179 ¶ 47, 140 P.3d at 962. The state court’s ruling does not implicate

21

federal law.

22

In general, a trial court’s evidentiary rulings are not proper grounds for habeas

23

corpus relief. “[I]t is not the province of a federal habeas court to reexamine state-court

24

determinations on state-law questions. In conducting habeas review, a federal court is

25

limited to deciding whether a conviction violated the Constitution, laws, or treaties of the

26

United States.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); Jammal v. Van de Kamp,

27

926 F.2d 918, 919 (9th Cir. 1991) (“[F]ailure to comply with the state’s rules of evidence

28

is neither a necessary nor a sufficient basis for granting habeas relief.”). The Ninth Circuit

- 46 -

1

has held that the admission of “other acts” evidence violates due process only if there are

2

no permissible inferences that the jury may draw from the evidence. See Jammal, 926 F.2d

3

at 920.

4

Petitioner presented evidence that he was caring and protective of others. The jury

5

could infer from Majors’ testimony that this was not universally true. To the extent that

6

Petitioner argues that Majors’ testimony was unsubstantiated or inflammatory, she was

7

subject to substantial cross examination by Petitioner’s counsel. This Court cannot say that

8

allowing the state to contradict Petitioner’s mitigation through Majors’ testimony rendered

9

his trial fundamentally unfair.

10
11

Claim 20 is denied.
9.

Claim 21

12

Petitioner asserts that Arizona’s sentencing scheme “unconstitutionally creates a

13

presumption of death and shifts the burden of proof to the defendant, violating his rights to

14

due process, a fair trial, effective assistance of counsel, and freedom from cruel and unusual

15

punishment.” (Doc. 40 at 268.) Petitioner raised a majority of this claim on direct appeal.

16

The Arizona Supreme Court concluded that “[a]lthough § 13–703(C) requires the

17

defendant to prove mitigating circumstances by a preponderance of the evidence, the

18

statutory scheme does not place any burden of proof on the defendant in connection with

19

establishing that the mitigation evidence is sufficiently substantial to call for leniency.”

20

Hampton, 213 Ariz. at 180 ¶ 54, 140 P.3d at 963 (quoting State ex rel. Thomas v. Granville,

21

211 Ariz. 468, 472 ¶ 14, 123 P.3d 662, 666 (2005)). The Arizona Supreme Court’s

22

rejection of this claim was not contrary to or an unreasonable application of clearly

23

established law.

24

The Supreme Court has rejected the claim that Arizona’s death penalty statute is

25

impermissibly mandatory and creates a presumption in favor of the death penalty. See

26

Walton v. Arizona, 497 U.S. 639, 651–52 (1990) (citing Blystone v. Pennsylvania, 494 U.S.

27

299 (1990); Boyde, 494 U.S. at 370), overruled on other grounds by Ring v. Arizona, 536

28

U.S. 584 (2002); see also Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998) (summarily

- 47 -

1

rejecting a challenge to the “mandatory” quality of Arizona’s death penalty statute and its

2

failure to apply a beyond-a-reasonable-doubt standard).

3

Furthermore, the Supreme Court in Walton held that Arizona’s allocation of the

4

burdens of proof in a capital sentencing proceeding does not violate the constitution: “So

5

long as a State’s method of allocating the burdens of proof does not lessen the State’s

6

burden . . . to prove the existence of aggravating circumstances, a defendant’s constitutional

7

rights are not violated by placing on him the burden of proving mitigating circumstances

8

sufficiently substantial to call for leniency.” Walton, 497 U.S. at 649–50.

9
10

Claim 21 is denied.
10.

Claim 22

11

Petitioner next alleges that the “trial court improperly instructed jurors not to

12

consider sympathy” in violation of his rights to “due process, equal protection, effective

13

assistance of counsel, and a reliable sentence.” (Doc. 40 at 273.) Petitioner raised a

14

majority of this claim on direct appeal. The Arizona Supreme Court’s rejection of this

15

claim was not contrary to or an unreasonable application of clearly established federal law.

16

The trial court’s reference to sympathy, bias, and prejudice, taken in context with

17

the rest of the instructions, did not prevent the jury from considering or giving effect to any

18

of Petitioner’s mitigating evidence. The court properly defined mitigating circumstances

19

without placing any limits on the jury’s assessment of the evidence. See Kansas v. Marsh,

20

548 U.S. 163, 175 (2006) (“[O]ur precedents confer upon defendants the right to present

21

sentencers with information relevant to the sentencing decision and oblige sentencers to

22

consider that information in determining the appropriate sentence. The thrust of our

23

mitigation jurisprudence ends here.”). The trial court’s general instruction that jurors

24

“should not be influenced by sympathy or prejudice,” but rather should follow the law,

25

including the court’s definition of mitigation, was not unreasonable. (RT 1/16/03 at 132.)

26
27

Claim 22 is denied.
11.

Claim 23

28

- 48 -

1

Petitioner asserts that “[t]he trial court’s admission of victim impact testimony

2

violated Mr. Hampton’s right to [] due process, a fair trial, a reliable sentence, effective

3

assistance of counsel, and freedom from cruel and unusual punishment.” (Doc. 40 at 277.)

4

Petitioner raised a majority of this claim on direct appeal. On direct appeal, the Arizona

5

Supreme Court concluded that the victim impact statement presented by Findley’s mother

6

was not unduly prejudicial. Hampton, 213 Ariz. at 181 ¶ 62, 140 P.3d at 964. This

7

conclusion was not contrary to or an unreasonable application of clearly established federal

8

law.

9

The Supreme Court has held that “[a] State may legitimately conclude that evidence

10

about the victim and about the impact of the murder on the victim’s family is relevant to

11

the jury’s decision as to whether or not the death penalty should be imposed.” Payne v.

12

Tennessee, 501 U.S. 808, 827 (1991). The Eighth Amendment bars only “the admission

13

of a victim’s family members’ characterizations and opinions about the crime, the

14

defendant, and the appropriate sentence.” See Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016);

15

United States v. Mikhel, 889 F.3d 1003, 1052–53 (9th Cir. 2018).

16

The Arizona Supreme Court’s application of Payne was not unreasonable in this

17

case. Petitioner complains primarily that Findley’s mother referred repeatedly to “these

18

people” who “weren’t [Findley’s] friends,” “did get [Findley] into drugs,” and “took

19

advantage” of Findley. Findley’s mother did not define who “these people” included, but

20

presumably she intended to include Petitioner in this group that may have also included

21

Ross, the state’s primary witness, and Ramsdell, the other victim.

22

Although this testimony “characterized” Petitioner and others, as prohibited under

23

Payne, Petitioner was not unduly prejudiced. See United States v. Mitchell, 502 F.3d 931,

24

990 (9th Cir. 2007) (concluding that a statement was “an inadmissible opinion about [the

25

defendant’s] crime,” but denying relief because the comment “was brief, isolated, and

26

could not have had more than a marginal impact on the jury”). The jury had already heard

27

extensive testimony regarding the drug use and lifestyle in which Petitioner, the victims,

28

and several other individuals engaged. The statements by Findley’s mother were not

- 49 -

1

inconsistent with the information already before the jury regarding the circumstances

2

surrounding the crime and could not have significantly affected the jury’s deliberations or

3

conclusion.

4

Petitioner further argues that another victim impact statement falsely stated that

5

Ramsdell had stopped taking drugs prior to her murder. Even assuming this claim was not

6

defaulted, the statement does not violate Payne—it does not characterize Petitioner or offer

7

an opinion on the crime or sentence.

8
9

Claim 23 is denied.
12.

Claim 24

10

Petitioner alleges that “by admitting gruesome photographs into evidence, the trial

11

court violated Mr. Hampton’s constitutional right to due process, a fair trial, a reliable

12

sentence, effective assistance of counsel, and freedom from cruel and unusual

13

punishment.” (Doc. 40 at 273.) Petitioner raised a majority of this claim on direct appeal.

14

When presented with this claim, the Arizona Supreme Court reasoned that “[o]n this

15

record, we cannot conclude that the judge abused his discretion by determining that the

16

probative value of the remaining photographs outweighed any danger of unfair prejudice.”

17

Hampton, 213 Ariz. at 173 ¶ 20, 140 P.3d at 956. This was not contrary to or an

18

unreasonable application of clearly established federal law.

19

The photographs at issue include photographs of both murder victims during their

20

autopsies as well as photographs of the deceased fetus. Courts have repeatedly held that

21

the admission of highly inflammatory photographs does not inherently violate due process.

22

See Hovey v. Ayers, 458 F.3d 892, 923 (9th Cir. 2006) (noting the “very high standard for

23

proving a due process violation” based on the admission of photographs); see, e.g.,

24

Plascencia v. Alameida, 467 F.3d 1190, 1203 (9th Cir. 2006) (premortem photographs of

25

the victim with her children); United States v. Bowers, 660 F.2d 527, 529–30 (5th Cir.

26

1981) (photograph of the child’s lacerated heart). It was not unreasonable for the Arizona

27

Supreme Court to conclude that the photographs, though “unsettling,” were relevant to the

28

crimes charged.

- 50 -

1
2

Claim 24 is denied.
13.

Claim 25

3

Petitioner next argues that “[t]he imposition of a consecutive sentence violated Mr.

4

Hampton’s constitutional rights to due process and a reliable sentence.” (Doc. 40 at 283.)

5

Petitioner further alleges the denial of equal protection. (Id. at 284.) Petitioner did not

6

present this claim as a violation of federal law in state court. (Doc. 51-1 at 117–18.) When

7

Petitioner raised related violations of state law, the Arizona Supreme Court, interpreting

8

A.R.S. §§ 13-116 and -1103(A)(5), concluded that the consecutive sentence was

9

permissible as a matter of state law. Hampton, 213 Ariz. at 181–82 ¶¶ 63–65, 140 P.3d at

10

964–65. Martinez cannot excuse the procedural default of this claim. See Pizzuto, 783

11

F.3d at 1176–77.

12
13

Claim 25 is denied as procedurally defaulted.
14.

Claim 26

14

Petitioner alleges that “[t]he Arizona Supreme Court violated [his] right to trial by

15

jury, due process, a reliable sentence, and freedom from cruel and unusual punishment”

16

when it concluded that the trial court’s failure to submit to the jury the aggravator on the

17

manslaughter charge was harmless under Blakely v. Washington, 542 U.S. 296 (2004).

18

(Doc. 40 at 285.) Petitioner presented this claim on direct appeal. The Arizona Supreme

19

Court’s denial of this claim was not contrary to or an unreasonable application of clearly

20

established federal law.

21

The United States Supreme Court has stated that failure to send an aggravating

22

factor to the jury is not structural error. See Washington v. Recuenco, 548 U.S. 212, 222

23

(2006). The Arizona Supreme Court’s conclusion that the sentencing error in this case was

24

harmless is not an unreasonable application of clearly established federal law.

25

Blakely error is structural if it “necessarily render[s] a criminal trial fundamentally

26

unfair or an unreliable vehicle for determining guilt or innocence.” Recuenco, 548 U.S. at

27

218–19 (quoting Neder v. United States, 527 U.S. 1, 9 (1999)). In this case, the Arizona

28

Supreme Court concluded that the trial court failed to allow the jury to make findings

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1

regarding aggravation for the manslaughter charge. Hampton, 213 Ariz. at 183 ¶¶ 70–71,

2

140 P.3d at 966. It then concluded that this error was harmless because “no reasonable

3

jury could have failed to find that a deadly weapon was used in the commission of the

4

offense” and that “two other murders were committed at the same time as the fetal

5

manslaughter.” Id. at 183 ¶¶ 72–73, 140 P.3d at 966.

6

This conclusion was supported by the record and was not an unreasonable

7

application of clearly established federal law or an unreasonable determination of fact. The

8

use of a weapon and the number of deaths have never been disputed.

9
10

Claim 26 is denied.
15.

Claim 27

11

Petitioner alleges that the Arizona Supreme Court erred by “reweigh[ing] the

12

mitigation evidence against the remaining statutory aggravating factor and [upholding] the

13

death sentence.” (Doc. 40 at 287.) This claim was raised before the state PCR court, which

14

rejected it on both procedural and substantive grounds.

15

Procedurally, the court concluded that “[t]his claim could have been raised in a motion for

16

reconsideration to the Supreme Court and as it was not, it has been waived pursuant to Rule

17

32.2(a)(3).” (Id.) This independent and adequate state ground renders Petitioner’s claim

18

procedurally defaulted. See Cook v. Schriro, 538 F.3d 1000, 1025 (9th Cir. 2008).

(Doc. 54-3 at 158–59.)

19

Petitioner alleges he can overcome this procedural bar “because the ineffective

20

assistance of post-conviction counsel—for failing to raise the ineffective assistance of

21

appellate counsel—establishes good cause” under Martinez.

22

Martinez has not been expanded to excuse the default of ineffective assistance of appellate

23

counsel claims. See Davila, 137 S. Ct. at 2069 (“Extending Martinez to defaulted claims

24

of ineffective assistance of appellate counsel would be especially troublesome because

25

those claims could serve as the gateway to federal review of a host of trial errors, while

26

Martinez covers only one trial error (ineffective assistance of trial counsel).”).

27
28

The Court disagrees.

Claim 27 remains procedurally defaulted and is denied. Petitioner’s request for
evidentiary development in support of this claim is also denied.

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1

16.

Claim 28

2

Petitioner alleges that his direct appeal counsel was ineffective under Strickland.

3

(Doc. 40 at 295.) Petitioner asserts that competent counsel would have raised Claims 27,

4

5, 9, 29, and 39. Petitioner presented only part of this claim to the Arizona Supreme Court.

5

He alleged that his appellate counsel was ineffective for failing to pursue Claim 27 in a

6

motion for reconsideration before the Arizona Supreme Court. (Doc. 51-3 at 263–64.) The

7

remaining claims were not presented, and Martinez does not excuse their default. See

8

Davila, 137 S. Ct. at 2069 (declining to extend Martinez to defaulted claims of ineffective

9

assistance of appellate counsel).

10

The Arizona Supreme Court denied review of this claim summarily, and thus this

11

Court looks through to the last reasoned opinion, which was issued by the PCR court. The

12

PCR court concluded that Petitioner’s appellate counsel was not ineffective because the

13

underlying claim was without merit. (Doc. 51-3 at 160.) The court’s decision was not

14

contrary to or an unreasonable application of clearly established federal law.

15

To establish ineffective assistance of appellate counsel, a petitioner must satisfy the

16

Strickland standard. Smith v. Robbins, 528 U.S. 259, 285–86 (2000). That is, petitioner

17

must establish that appellate counsel “unreasonably failed to discover nonfrivolous issues

18

and to file a merits brief raising them,” and “he must show a reasonable probability that,

19

but for his counsel’s unreasonable failure” to brief meritorious issues, “he would have

20

prevailed on his appeal.” Id. Counsel is not unreasonable for failing to raise a claim that

21

lacks merit. See Sexton, 679 F.3d at 1157.

22

When the PCR court considered the underlying claim—that the Arizona Supreme

23

Court violated Tennard v. Dretke, 542 U.S. 274 (2004) by reweighing the mitigation and

24

aggravating factors before upholding the death sentences—it concluded that the Supreme

25

Court’s decision to afford “little weight to the mitigation evidence” did not violate

26

Tennard. (Doc. 51-3 at 158–59.)

27

In Tennard, the Supreme Court emphasized that the trier of fact must be allowed to

28

consider all evidence that is “of such a character that it might serve as a basis for a sentence

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1

less than death.” Id. at 287 (internal quotation marks omitted). The Court did not, however,

2

ban the trier of fact from weighing the significance of mitigating evidence. See id. at 286

3

(“[G]ravity has a place in the relevance analysis, insofar as evidence of a trivial feature of

4

the defendant’s character or the circumstances of the crime is unlikely to have any tendency

5

to mitigate the defendant’s culpability.”).

6

As the Arizona Supreme Court noted, “[t]he majority of the mitigation evidence

7

detailed Hampton’s very difficult personal and family history.” Hampton, 213 Ariz. at 184

8

¶ 82, 140 P.3d at 967. It deemed this evidence “not insubstantial” and acknowledged that

9

Hampton “had a horrendous childhood.” Id. at 185 ¶ 89, 140 P.3d at 968. The court then

10

noted that this mitigation was “entitled to less weight” because it was not tied to the crime,

11

and substantial time had passed between Petitioner’s childhood and the crime. Id.

12
13

When articulating its evaluation of Petitioner’s mitigating evidence, the Arizona
Supreme Court used the same language approved by the Ninth Circuit:

16

We do not require that a nexus between the mitigating factors and the crime
be established before we consider the mitigation evidence. . . . But the failure
to establish such a causal connection may be considered in assessing the
quality and strength of the mitigation evidence.

17

McKinney v. Ryan, 813 F.3d 798, 818 (9th Cir. 2015) (citation omitted) (quoting State v.

18

Newell, 212 Ariz. 389, 132 P.3d 833, 849 (2006)). In sum, the PCR court was not

19

unreasonable in concluding that Petitioner’s Tennard claim was without merit.

14
15

20

Petitioner thus cannot show that his appellate counsel was unreasonable in failing

21

to continue to pursue this claim before the Arizona Supreme Court, nor can he show that

22

he was prejudiced.

23
24

Accordingly, Claim 29 is denied.
17.

Claim 30

25

Petitioner asserts that the death penalty “is categorically cruel and unusual

26

punishment in violation of the Eighth Amendment . . . .” (Doc. 40 at 303.) The Arizona

27

Supreme Court’s rejection of this claim is not contrary to or an unreasonable application

28

of clearly established federal law.

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1

The United States Supreme Court has rejected the argument that punishment of

2

death is per se cruel and unusual. Gregg v. Georgia, 428 U.S. 153, 176–87 (1976) (“We

3

hold that the death penalty is not a form of punishment that may never be imposed,

4

regardless of the circumstances of the offense, regardless of the character of the offender,

5

and regardless of the procedure followed in reaching the decision to impose it.”); accord

6

Kennedy v. Louisiana, 554 U.S. 407, 420 (2008) (“[T]he death penalty is not invariably

7

unconstitutional . . . .”).

8
9

Claim 30 is denied.
18.

Claim 31

10

Petitioner alleges that Arizona’s capital sentencing scheme “affords the prosecutor

11

. . . unbridled discretion to seek the death penalty” and is thus unconstitutional. (Doc. 40

12

at 305.) The Arizona Supreme Court’s rejection of this claim was not contrary to or an

13

unreasonable application of clearly established federal law.

14

A statutory scheme for imposing a death sentence may not be capricious or arbitrary.

15

See Gregg, 428 U.S. at 206; Zant, 462 U.S. at 877–79. Accordingly the Supreme Court

16

has consistently held that limits on the sentencer’s discretion are necessary to prevent the

17

capricious or arbitrary imposition of death sentences. Gregg, 428 U.S. at 206–07 (“No

18

longer can a jury wantonly and freakishly impose the death sentence; it is always

19

circumscribed by the legislative guidelines.”). No clearly established federal law, however,

20

imposes similar limits on the prosecutor’s discretion to seek death in the first instance.

21
22

Claim 31 is denied.
19.

Claim 32

23

Petitioner contends that the death penalty in Arizona is imposed in a discriminatory

24

manner “against poor, young, and male defendants.” (Doc. 40 at 307.) The Arizona

25

Supreme Court’s rejection of this claim was not contrary to or an unreasonable application

26

of clearly established federal law.

27

“[A] defendant who alleges an equal protection violation has the burden of proving

28

‘the existence of purposeful discrimination’” and a resulting “discriminatory effect.”

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1

McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (quoting Whitus v. Georgia, 385 U.S. 545,

2

550 (1967) and Wayte v. United States, 470 U.S. 598, 608 (1985)). To prevail on this claim

3

Petitioner must therefore “prove that the decisionmakers in his case acted with

4

discriminatory purpose.” Id. Petitioner does not offer evidence specific to his case that

5

would support an inference that his sex or economic status played a part in his sentence.

6
7

Claim 32 is denied.
20.

Claim 33

8

Petitioner alleges that his death sentences are unconstitutional because he was not

9

afforded the procedural safeguard of proportionality review. (Doc. 40 at 309.) The

10

Arizona Supreme Court’s rejection of this claim was not contrary to or an unreasonable

11

application of clearly established federal law.

12

There is no federal constitutional right to proportionality review of a death sentence.

13

McCleskey, 481 U.S. at 306 (1987) (“[W]here the statutory procedures adequately channel

14

the sentencer’s discretion, such proportionality review is not constitutionally required.”

15

(citing Pulley v. Harris, 465 U.S. 37, 50–51 (1984))); see also Ceja v. Stewart, 97 F.3d

16

1246, 1252 (9th Cir. 1996) (“Arizona’s application of an adequately narrowed aggravating

17

circumstance insured that Ceja’s substantive right to be free from a disproportionate

18

sentence was not violated.”). As explained further below, Arizona’s death penalty scheme

19

narrows the class of defendants eligible for the death penalty by defining narrow categories

20

of aggravating circumstances, which in turn protect defendants’ “substantive right to be

21

free from a disproportionate sentence.” Ceja, 97 F.3d at 1252.

22
23

Claim 33 is denied.
21.

Claim 34

24

Petitioner alleges that Arizona’s capital sentencing scheme violates the Constitution

25

“because it does not require the state to prove or the jury to find beyond a reasonable doubt

26

that the aggravating circumstances outweigh the mitigating circumstances.” (Doc. 40 at

27

310.) The Arizona Supreme Court’s rejection of this claim was not contrary to or an

28

unreasonable application of clearly established federal law.

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1

The Supreme Court has held that “a State may require the defendant to bear the risk

2

of nonpersuasion as to the existence of mitigating circumstances.” Delo v. Lashley, 507

3

U.S. 272, 275 (1993) (per curiam) (internal quotation marks omitted); see also Boyde v.

4

California, 494 U.S. 370, 377 (1990) (“Petitioner suggests that the jury must have freedom

5

to decline to impose the death penalty even if the jury decides that the aggravating

6

circumstances ‘outweigh’ the mitigating circumstances. But there is no such constitutional

7

requirement of unfettered sentencing discretion in the jury, and States are free to structure

8

and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and

9

equitable administration of the death penalty.’” (quoting Franklin v. Lynaugh, 487 U.S.

10

164, 181(1988))); Smith, 140 F.3d at 1272 (summarily rejecting challenges to the

11

“mandatory” quality of Arizona’s death penalty statute and its failure to apply the beyond-

12

a-reasonable-doubt standard).

13
14
15
16

The Constitution thus does not require that the jury find beyond a reasonable doubt
that aggravating circumstances “outweigh” mitigating circumstances.
Claim 34 is denied.
22.

Claims 35 and 36

17

In Claim 35 Petitioner alleges that “Arizona’s capital sentencing scheme violates

18

the Eighth and Fourteenth Amendments to the United States Constitution because it does

19

not set forth objective standards to guide the sentencer in weighing the aggravating

20

circumstances against the mitigating circumstances.” (Doc. 40 at 312.) In Claim 36,

21

Petitioner similarly argues “Arizona’s capital sentencing scheme violates the Eighth and

22

Fourteenth Amendments to the United States Constitution because it does not sufficiently

23

channel the discretion of the sentencing authority.” (Id. at 313.) The Arizona Supreme

24

Court’s rejection of these claims was not contrary to or an unreasonable application of

25

clearly established federal law.

26

“The State must ensure that the process is neutral and principled so as to guard

27

against bias or caprice in the sentencing decision.” Tuilaepa v. California, 512 U.S. 967,

28

- 57 -

1

973 (1994) (citing Gregg, 428 U.S. at 189). Procedures must “minimize the risk of wholly

2

arbitrary and capricious action.” Gregg, 428 U.S. at 189.

3

Arizona’s death penalty statute allows only certain, specific aggravating

4

circumstances to be considered in determining eligibility for the death penalty. See A.R.S.

5

§ 13–703(F). “The presence of aggravating circumstances serves the purpose of limiting

6

the class of death-eligible defendants, and the Eighth Amendment does not require that

7

these aggravating circumstances be further refined or weighed by [the sentencing

8

authority].” Blystone, 494 U.S. at 306–07. In addition, Arizona’s scheme requires the

9

sentencing court to consider as mitigating circumstances “any factors proffered by the

10

defendant or the state that are relevant in determining whether to impose a sentence less

11

than death, including any aspect of the defendant’s character, propensities or record and

12

any of the circumstances of the offense.” A.R.S. § 13–703(G).

13

Furthermore, rulings of both the Ninth Circuit and the United States Supreme Court

14

have upheld Arizona’s death penalty statute against allegations that particular aggravating

15

factors do not adequately narrow the sentencer’s discretion. See Lewis v. Jeffers, 497 U.S.

16

764, 774–77 (1990); Walton, 497 U.S. at 649–51; Woratzeck v. Stewart, 97 F.3d 329, 335

17

(9th Cir. 1996). The Ninth Circuit has also explicitly rejected the contention that Arizona’s

18

death penalty statute is unconstitutional because it “does not properly narrow the class of

19

death penalty recipients.” Smith, 140 F.3d at 1272.

20

Because it provides for “categorical narrowing” at the definition stage and for an

21

“individualized determination” at the selection stage, Arizona’s death penalty scheme is

22

not unconstitutional. The Arizona Supreme Court’s rejection of these claims was neither

23

contrary to nor an unreasonable application of federal law.

24
25

Claims 35 and 36 are denied.
23.

Claim 38

26

In Claim 38, Petitioner alleges he “will be denied a fair clemency process in

27

violation of the Eighth and Fourteenth Amendments.” (Doc. 40 at 317.) He acknowledges

28

that “has not yet become ripe” but seeks to “avoid difficulties raising this claim in future

- 58 -

1

habeas proceedings.” (Id.) Habeas relief can only be granted on claims that a prisoner “is

2

in custody in violation of the Constitution or laws or treaties of the United States.” 28

3

U.S.C. § 2254(a); see also Woratzeck v. Stewart, 118 F.3d 648, 653 (9th Cir. 1997) (per

4

curiam) (clemency claims are not cognizable under federal habeas law).
Claim 38 is denied as non-cognizable.

5
6

IV.

CERTIFICATE OF APPEALABILITY

7

Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, an applicant

8

cannot take an appeal unless a certificate of appealability has been issued by an appropriate

9

judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases provides that the

10

district judge must either issue or deny a certificate of appealability when it enters a final

11

order adverse to the applicant. If a certificate is issued, the court must state the specific

12

issue or issues that satisfy 28 U.S.C. § 2253(c)(2).

13

Under § 2253(c)(2), a certificate of appealability may issue only when the petitioner

14

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

15

be established by demonstrating that “reasonable jurists could debate whether (or, for that

16

matter, agree that) the petition should have been resolved in a different manner” or that the

17

issues were “adequate to deserve encouragement to proceed further.” Slack v. McDaniel,

18

529 U.S. 473, 484 (2000). For procedural rulings, a certificate of appealability will issue

19

only if reasonable jurists could debate whether the petition states a valid claim of the denial

20

of a constitutional right and whether the court’s procedural ruling was correct. Id.
The Court finds that reasonable jurists could not debate its resolution of Petitioner’s

21
22

claims.

23

V.

24

Accordingly,

25
26
27
28

CONCLUSION

IT IS ORDERED denying the Petition (Doc. 40). The Clerk of Court shall enter
judgment accordingly.
IT IS FURTHER ORDERED denying Petitioner’s motion for evidentiary
development (Doc. 73.)

- 59 -

1

IT IS FURTHER ORDERED denying the following motions as moot:

2

Petitioner’s Motions for New Counsel (Docs. 96, 99); Petitioner’s Motion to Declare a

3

Conflict of Interest (Doc. 97); and Petitioner’s Motions for Order to Cease and Desist

4

(Docs. 98, 101).

5

IT IS FURTHER ORDERED denying a certificate of appealability.

6

IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of

7

this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ

8

85007-3329.

9

Dated this 27th day of February, 2019.

10
11
12

Honorable Roslyn O. Silver
Senior United States District Judge

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