Roseberry v. Ryan et al

Filing 70

ORDER re: Petitioner's Motion for Evidentiary Development 57 . IT IS ORDERED denying in part Roseberry's motion for evidentiary development 57 as set forth herein. IT IS FURTHER ORDERED granting Roseberry's request to expand the re cord to include the following materials attached to his motion for evidentiary development (Doc. 57; see Docs. 57-62): Exhibits 1-34, 90-125, 129-34, and 204-10. IT IS FURTHER ORDERED dismissing Claim 45 without prejudice as premature. See attached order for additional information. Signed by Senior Judge Neil V. Wake on 1/30/2018. (RMW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA
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Homer Ray Roseberry,

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Petitioner,
v.

No. CV-15-1507-PHX-NVW
DEATH PENALTY CASE
ORDER

Charles L. Ryan, et al.,

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Respondents.

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Before the Court is Petitioner Homer Roseberry’s Motion for Evidentiary

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Development. (Doc. 57.) Respondents filed a response in opposition to the motion and
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Roseberry filed a reply. (Docs. 67, 68.) The motion is denied in part and granted in part,
as set forth herein.
I.

BACKGROUND

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The Arizona Supreme Court, in State v. Roseberry, 210 Ariz. 360, 363, 111 P.3d

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402, 405 (2005), summarized the facts underlying Roseberry’s convictions and sentences

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as follows.

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In 1997, Roseberry and his wife, Diane, met members of a marijuana-smuggling

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ring known as the Pembertons. In late 1998 and early 1999, Roseberry was paid by the

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Pembertons to transport marijuana in his motorhome from Arizona to Michigan.

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In early October of 2000, Roseberry agreed to transport more than 1,000 pounds

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of marijuana. When Roseberry arrived in Phoenix to pick up the load, the Pembertons

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informed him that Fred Fottler would accompany him on the trip. Several large duffle

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bags of marijuana were then loaded into the motorhome.

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On October 20, 2000, Roseberry set off from Phoenix. Pursuant to a scheme he
devised with his friend Charles Dvoracek, Dvoracek traveled to Wickenberg, Arizona,
where he was supposed to intercept and “steal” the motorhome and marijuana while
Roseberry and Fottler were eating at a Denny’s restaurant. In the early morning hours of
October 21, 2000, Dvoracek parked his truck on the side of the road and waited for the
motorhome to stop at Denny’s. Instead of stopping at the restaurant, however, Roseberry
drove back onto the highway and continued north toward his home in Nevada.

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Dvoracek followed the motorhome, which Roseberry soon pulled over onto the

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shoulder of the road. As Dvoracek pulled in behind, he heard two pops. Roseberry

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stepped out of the motorhome and told Dvoracek that he had “shot the guy” the

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Pembertons had sent to accompany him on the drug run.

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Roseberry shot Fottler in the back of the head. Fottler was still making gurgling

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noises, so Roseberry returned to the motorhome and shot him again. Roseberry and

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Dvoracek then wrapped Fottler’s body in a blanket and dumped it into the gully on the

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side of the road.

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As Roseberry drove through Arizona, he threw his gun out the window of the
motorhome. Roseberry and Dvoracek stopped in Kingman, Arizona, to remove other
evidence of the crime. They took a blood-stained sheet from the motorhome and threw it
over a fence. They also buried Fottler’s wallet and moved one of the duffle bags of
marijuana from the motorhome to Dvoracek’s truck so Dvoracek could sell the drugs to
raise money in case it became necessary to bail Roseberry out of jail.
They arrived at Roseberry’s home in Henderson, Nevada, on October 21, 2000,

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and put the motorhome and drugs into storage. Later that day, Roseberry confided to his

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wife that he killed Fottler so he could steal the marijuana and sell it himself. Roseberry

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told her that his story was going to be that “some Mexicans” with guns were in the

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motorhome and had killed Fottler while Roseberry was out of the vehicle.

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Diane Roseberry called her brother, Otis Bowman, and asked him to fly in from

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Indiana, which he did on October 22, 2000. Two drug dealers flew in with Bowman.

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They agreed to purchase about 300 pounds of marijuana, which Bowman later
transported to Ohio in Roseberry’s motorhome. Roseberry and Dvoracek split the money
from the sale.
Fottler’s body was soon discovered.

Investigative leads from United States

Customs agents led Yavapai County Deputy Sheriffs to Roseberry, whose motorhome
customs agents had observed while surveilling a Tucson stash house.

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Roseberry was tried and convicted of first-degree murder and drug offenses. In

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the aggravation phase of his trial, the jury found that the State had proven beyond a

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reasonable doubt that Roseberry murdered Fottler for pecuniary gain. In the penalty

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phase, Roseberry presented mitigation evidence on five statutory and five non-statutory

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mitigating circumstances. The jury determined that the mitigation evidence was not

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sufficiently substantial to warrant leniency and returned a verdict of death for the murder.

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The court sentenced Roseberry to death.

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On direct appeal, the Arizona Supreme Court affirmed the convictions and

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sentences. Roseberry, 210 Ariz. 360, 111 P.3d 402. Roseberry filed a petition for post-

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conviction relief (“PCR”) in April 2012. The trial court denied the petition and the

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Arizona Supreme Court denied Roseberry’s petition for review.
On December 22, 2015, Roseberry filed a sealed petition for writ of habeas corpus

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in this Court. (Doc. 23.) He filed an unsealed petition on August 8, 2016. (Doc. 32.)
The petition raises 47 claims and dozens of subclaims. (Id.) In the pending motion for
evidentiary development, Roseberry seeks expansion of the record, discovery, and/or an
evidentiary hearing with respect to 27 of those claims. (Doc. 57.)
II.

APPLICABLE LAW

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A.

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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”). Under the AEDPA, a petitioner is not entitled

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to habeas relief on any claim adjudicated on the merits in state court unless the state

AEDPA

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court’s adjudication (1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established federal law or (2) resulted in a decision

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that was based on an unreasonable determination of the facts in light of the evidence
presented in state court. 28 U.S.C. § 2254(d).
The Supreme Court has emphasized that “an unreasonable application of federal
law is different from an incorrect application of federal law.” Williams v. Taylor, 529
U.S. 362, 410 (2000). Under § 2254(d), “[a] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’
on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011).

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In Cullen v. Pinholster, 563 U.S. 170, 181 (2011), the Court reiterated that

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

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adjudicated the claim on the merits.” See Murray (Robert) v. Schriro, 745 F.3d 984,

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998 (9th Cir. 2014) (“Along with the significant deference AEDPA requires us to afford

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state courts’ decisions, AEDPA also restricts the scope of the evidence that we can rely

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on in the normal course of discharging our responsibilities under § 2254(d)(1).”).

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However, Pinholster does not bar evidentiary development where the court has

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determined, based solely on the state court record, that the petitioner “has cleared the §

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2254(d) hurdle.” Madison v. Commissioner, Alabama Dept. of Corrections, 761 F.3d
1240, 1249–50 (11th Cir. 2014); see Pinholster, 563 U.S. at 185; Henry v. Ryan, 720
F.3d 1073, 1093 n.15 (9th Cir. 2013) (explaining that Pinholster bars evidentiary hearing
unless petitioner satisfies § 2254(d)); Williams v. Woodford, 859 F.Supp.2d 1154, 1161
(E.D. Cal. 2012).
For claims not adjudicated on the merits in state court, federal review is generally

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not available when the claims have been denied pursuant to an independent and adequate

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state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In Arizona,

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there are two avenues for petitioners to exhaust federal constitutional claims: direct

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appeal and PCR proceedings. Rule 32 of the Arizona Rules of Criminal Procedure

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governs PCR proceedings and provides that a petitioner is precluded from relief on any

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claim that could have been raised on appeal or in a prior PCR petition. Ariz. R. Crim. P.

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32.2(a)(3).

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For unexhausted and defaulted claims, “federal habeas review . . . is barred unless
the prisoner can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Coleman
further held that ineffective assistance of counsel in PCR proceedings does not establish
cause for the procedural default of a claim. Id.
In Martinez v. Ryan, 566 U.S. 1 (2012), however, the Court established a “narrow

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exception” to the rule announced in Coleman. Under Martinez, a petitioner may establish

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cause for the procedural default of an ineffective assistance claim “by demonstrating two

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things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should

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have been raised, was ineffective under the standards of Strickland . . .’ and (2) ‘the

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underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to

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say that the prisoner must demonstrate that the claim has some merit.’” Cook v. Ryan,

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688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 14); see Clabourne v.

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Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney v.

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Ryan, 813 F.3d 798 (9th Cir. 2015).

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B.

Evidentiary Development

A habeas petitioner is not entitled to discovery “as a matter of ordinary course.”
Bracy v. Gramley, 520 U.S. 899, 904 (1997); see Campbell v. Blodgett, 982 F.2d 1356,
1358 (9th Cir. 1993). Rule 6 of the Rules Governing Section 2254 Cases provides that
“[a] judge may, for good cause, authorize a party to conduct discovery under the Federal
Rules of Civil Procedure and may limit the extent of discovery.” Rule 6(a), Rules

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Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Whether a petitioner has established

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“good cause” for discovery requires a habeas court to determine the essential elements of

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the petitioner’s substantive claim and evaluate whether “specific allegations before the

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court show reason to believe that the petitioner may, if the facts are fully developed, be

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able to demonstrate that he is . . . entitled to relief.” Bracy, 520 U.S. at 908–09.

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An evidentiary hearing is authorized under Rule 8 of the Rules Governing §

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2254 Cases. Pursuant to § 2254(e)(2), however, a federal court may not hold a hearing

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unless it first determines that the petitioner exercised diligence in trying to develop the
factual basis of the claim in state court. See Williams (Michael) v. Taylor, 529 U.S. 420,
432 (2000).

If the failure to develop a claim’s factual basis is attributable to the

petitioner, a federal court may hold an evidentiary hearing only if the claim relies on (1)
“a new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable” or (2) “a factual predicate that could not
have been previously discovered through the exercise of due diligence.” 28 U.S.C. §

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2254(e)(2). In addition, “the facts underlying the claim [must] be sufficient to establish

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by clear and convincing evidence that but for constitutional error, no reasonable fact

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finder would have found the [petitioner] guilty of the underlying offense.” Id.

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

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

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the record. See Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999). The diligence

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assessment requires a determination of whether a petitioner “made a reasonable attempt,

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

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court.” Williams (Michael), 529 U.S. at 435. For example, when there is information in

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the record that would alert a reasonable attorney to the existence and importance of
certain evidence, the attorney “fails” to develop the factual record if he does not make
reasonable efforts to investigate and present the evidence to the state court. Id. at 438–
39, 442.
Absent unusual circumstances, diligence requires that a petitioner “at a minimum,
seek an evidentiary hearing in state court in the manner prescribed by state law.”

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Williams (Michael), 529 U.S. at 437. The mere request for an evidentiary hearing,

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however, may not be sufficient to establish diligence if a reasonable person would have

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taken additional steps. See Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000); Alley

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v. Bell, 307 F.3d 380, 390–91 (6th Cir. 2002); Koste v. Dormire, 345 F.3d 974, 985–86

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(8th Cir. 2003). The Ninth Circuit has explained that “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

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it 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) (quoting CooperSmith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005)).
Significantly, an evidentiary hearing is not required if the issues can be resolved
by reference to the state court record. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir.
1998) (“It is axiomatic that when issues can be resolved with reference to the state court
record, an evidentiary hearing becomes nothing more than a futile exercise.”); see Schriro
v. 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

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an 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
U.S.C. foll. § 2254; see also Blackledge v. Allison, 431 U.S. 63, 81–82 (1977).
Expanding the record serves that purpose here.
Section 2254(e)(2) limits a petitioner’s ability to present new evidence through a
Rule 7 motion to the same extent that it limits the availability of an evidentiary hearing.
See Cooper–Smith, 397 F.3d at 1241 (applying § 2254(e)(2) to expansion of the record

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when intent is to bolster the merits of a claim with new evidence) (citing Holland v.

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Jackson, 542 U.S. 649, 652–53 (2004) (per curiam)).

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seeks to introduce new affidavits and other documents never presented in state court, he

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must either demonstrate diligence in developing the factual basis in state court or satisfy

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the requirements of § 2254(e)(2).

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Accordingly, when a petitioner

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III.

DISCUSSION
Roseberry seeks expansion of the record, discovery, and/or an evidentiary hearing

on Claims 1–17, 19, 20, 22, 24–28, 45, and 47. He seeks discovery of records from 28
different sources concerning his health and state of mind while in jail, trial counsel’s
performance, and the gambling habits of the State’s witnesses. (Doc. 57 at 14–17.) He
also seeks to depose trial and appellate counsel, the State’s witnesses and various family
members, law enforcement officers, and jail personnel and medical staff. (Id. at 17–22.)
He seeks to expand the record with 212 exhibits.

(Id. at 23–58.)

These include

declarations and exhibits in support of Roseberry’s claims of mental incompetence and a

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neurological condition, jury misconduct, trial court errors, and ineffective assistance of

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trial and appellate counsel. (Id. at 23–57.) Many of the declarations contain potentially

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mitigating information from people who knew Roseberry. Finally, Roseberry seeks an

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evidentiary hearing. (Id. at 58.)

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The claims for which Roseberry seeks evidentiary development include both

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exhausted and unexhausted claims.

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The Court addresses Roseberry’s evidentiary

development requests as follows.

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A.

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Respondents assert that the following claims are procedurally defaulted: 1–4, 6–

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Unexhausted, Defaulted Claims

10, 12–17, 19, 22, 24 (in part), 27, and 45.1 Roseberry did not raise these claims in state
court. The claims do not allege ineffective assistance of trial counsel; nevertheless,
Roseberry contends their default is excused under Martinez by the ineffective assistance
of appellate or PCR counsel.
In their answer to Roseberry’s habeas petition, Respondents “expressly waive their
affirmative defense of procedural default on all of Roseberry’s ineffective assistance of
counsel claims.” (Doc. 45 at 105.) Roseberry asserts that this waiver excuses the default

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Roseberry also seeks evidentiary development with respect to Claim 5, which
alleges that he “may currently be incompetent to assist counsel.” (Doc. 23 at 29.) This
claim is not cognizable on habeas review as it does not challenge the legality of
Roseberry’s conviction or sentence. See 28 U.S.C. § 2254(a).

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of all claims not raised in state court due to the ineffectiveness of his appellate and PCR

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counsel. The Court disagrees.

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Martinez held that “[i]nadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default of a claim of
ineffective assistance at trial.” 566 U.S. at 8. Martinez applies only to claims of
ineffective assistance of trial counsel; it has not been expanded to other types of claims.
Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015) (explaining that the Ninth
Circuit has “not allowed petitioners to substantially expand the scope of Martinez beyond
the circumstances present in Martinez”); Hunton v. Sinclair, 732 F.3d 1124, 1126–27 (9th

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Cir. 2013) (denying petitioner’s argument that Martinez permitted the resuscitation of a

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procedurally defaulted Brady claim, holding that only the Supreme Court could expand

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the application of Martinez to other areas).

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None of these defaulted claims alleges ineffective assistance of trial counsel.

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Therefore, the failure of PCR counsel to raise the claims does not excuse their default.

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Only with respect to Claims 1 and 45 does Roseberry assert that a fundamental

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miscarriage of justice will occur if the claims are not heard, but he offers no argument in

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support of those assertions. See Schlup v. Delo, 513 U.S. 298, 327 (1995) (explaining

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that to establish a “fundamental miscarriage of justice” a petitioner must present evidence

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showing that a “constitutional violation has probably resulted in the conviction of one
who is actually innocent”). The claims therefore remain procedurally defaulted and are
barred from federal review. Evidentiary development is denied on that basis.
There are other grounds for denying evidentiary development.

Some of the

claims, including Claims 1, 2, 10, 13, 16, 17, and subclaims of Claims 22 and 24, involve
purely legal issues.2 Other claims, again including Claims 10 and 13 and parts of claims

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In Claim 1, Roseberry alleges that the trial court violated his rights when it
instructed the jury that it could not consider mitigation if Roseberry “fail[ed] to prove
causation” between the mitigation evidence “and the crime.” (Doc. 32 at 41.) In Claim
2, Roseberry alleges that his rights were violated when the judge, rather than the jury,
made the Enmund/Tison finding. (Id. at 53.) In Claim 10, Roseberry alleges that the
state court violated his confrontation rights by admitting testimony and evidence
against him that was not authored by the testifying witnesses. (Id. at 77.) In Claim 13,
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22 and 24, involve no disputed facts and can be resolved on the record. Accordingly,

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evidentiary development is unnecessary. See Landrigan, 550 U.S. at 474; Beardslee, 358

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F.3d at 585.
Even if these defaulted claims were not barred from review, Roseberry’s requests
for evidentiary development must be denied. Roseberry has not shown good cause for
the requested discovery, nor has he demonstrated that he was diligent in pursuing the
materials with which he now seeks to expand the record.
For example, Claims 3 and 4 allege that the State violated its obligations under
Brady and failed to disclose information or presented false evidence. Roseberry,

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however, offers only speculation and conclusory allegations in support of these claims.3

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(Doc. 32 at 56–60.) In Claim 3, Roseberry asserts, “On information and belief, the State

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has violated its duty to disclose material information favorable to Mr. Roseberry. . . .

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[O]ngoing investigation may reveal relevant, material information that was never

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disclosed to Mr. Roseberry’s counsel.

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reveal further information relevant to this claim.” (Id. at 57.)

Evidentiary development and discovery may

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These allegations are insufficient to establish entitlement to discovery. The Ninth

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Circuit has explained that in habeas proceedings “discovery is only available in the

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discretion of the court and for good cause shown” and is not “meant to be a fishing

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expedition for habeas petitioners to explore their case in search of its existence.” Rich v.
Calderon, 187 F.3d 1064, 1067–68 (9th Cir. 1999) (internal quotation marks omitted).
Roseberry alleges violations based on the “Yavapai County Attorney’s Office policy of
automatically seeking capital punishment in every case in which at least one
aggravating circumstance might exist.” (Id. at 85.) In Claim 16, Roseberry argues that
his death sentence is disproportionate and therefore cruel and unusual. (Id. at 92.) In
Claim 17, Roseberry alleges that his rights were violated because he was convicted and
sentenced to death without a unanimous jury decision. (Id. at 95.) Claims 22 and 24
allege various errors by the trial court. (Id. at 103–38.)
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Roseberry seeks to expand the record with declarations and other records
regarding Diane Roseberry, the Dvoraceks, and Otis Bowman. (Doc. 57 at 40–41.) He
also seeks to depose the Dvoraceks, the Dvoraceks’ son and daughter, detectives, a
former U.S. Customs Internal Affairs Officer, and employees of the Yavapai County
Sheriff’s Department. (Id. at 18–21.)
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“Mere speculation that some exculpatory material may have been withheld is unlikely to

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establish good cause for a discovery request on collateral review.” Strickler v. Greene,

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527 U.S. 263, 286 (1999); see Thomas v. United States, 849 F.3d 669, 681 (6th Cir. 2017)
(“Beyond mere speculation, Thomas provides no evidence that the Government withheld
evidence that it was obligated to disclose. Bald assertions and conclusory allegations do
not provide sufficient ground to warrant requiring the government to respond to
discovery or to require an evidentiary hearing.”); Murphy v. Johnson, 205 F.3d 809 (5th
Cir. 2000) (explaining that petitioner failed to make out prima facie Brady claim based on
speculative and conclusory allegation that prosecutor failed to disclose secret deal with
jailhouse informant who testified against him and thus he was not entitled to discovery).

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Roseberry’s bare allegation that Brady materials may exist does not establish good

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cause for discovery. If such speculation were sufficient, “every habeas petitioner would

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be able to obtain broad discovery simply by asserting that the government withheld some

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unspecified evidence in violation of Brady.” Gathers v. New York, No. 11-CV-1684 JG,

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2012 WL 71844, at *9 (E.D.N.Y. Jan. 10, 2012); Renis v. Thomas, No. 02-CV-9256

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DABRLE, 2003 WL 22358799, at *2 (S.D.N.Y. October 16, 2003) (explaining that

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petitioner’s generalized statements about possibility of uncovering materials did not

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warrant discovery because statements were vague and overbroad).

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Evidentiary development on these claims is also foreclosed because Roseberry did
not act diligently in state court. For example, in support of Claims 8 and 9, Roseberry
seeks to expand the record to include declarations from jurors at his trial. A reasonably
diligent petitioner who believed he had a viable jury misconduct claim would have
obtained the declarations during the state court proceedings. See Rhoades, 598 F.3d at
517; Cooper-Smith, 397 F.3d at 1241; Ward v. Hall, 592 F.3d 1144, 1160–61 (11th Cir.

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2010) (“Given the fact that Ward was afforded approximately three years to secure

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affidavits and witness testimony prior to his state habeas evidentiary hearings and

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managed to submit numerous exhibits and affidavits during the course of his hearings . . .

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we cannot credit his claim that he exercised due diligence.”).

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Next, in Claim 19, Roseberry alleges “actual innocence of the death penalty.”

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(Doc. 32 at 98.) This claim is premised on Roseberry’s challenge to the pecuniary gain

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aggravating factor. (Id. at 98–99.) Even if a freestanding claim of actual innocence were
cognizable on habeas review, see Herrera v. Collins, 506 U.S. 390, 417 (1993),
evidentiary development is not necessary for the Court to evaluate the claim.
Finally, with respect to Claim 45, Roseberry alleges that his execution would
violate the Eighth and Fourteenth Amendments because he is mentally ill. (Doc. 32 at
238.) Respondents contend that the claim is not cognizable.
In Ford v. Wainwright, 477 U.S. 399, 409–10 (1986), the Supreme Court held that

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it is a violation of the Eighth Amendment to execute someone who cannot comprehend

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that his execution is based on a conviction for murder. Roseberry, however, does not

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contend that he is incompetent to be executed under Ford, only that he is “seriously

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mentally ill.” (Doc. 32 at 238.) In any event, a determination of incompetence cannot be

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made until an execution warrant is issued making the petitioner’s execution

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imminent.

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1997) (citing Herrera v. Collins, 506 U.S. at 406). Claim 45 is denied.

See Martinez-Villareal

v.

Stewart, 118

F.3d

628,

630

(9th

Cir.

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B.

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Respondents contend that under Pinholster, Roseberry is not entitled to

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Exhausted Claims

evidentiary development on Claims 11, 20, and 24 because those claims were adjudicated
on the merits in state court. They also argue that evidentiary development is foreclosed
because Roseberry did not diligently pursue the new evidence in state court. For the
reasons set forth next, Roseberry is not entitled to evidentiary development on these
claims.
In Claim 11, Roseberry alleges that “[o]n information and belief, jurors failed to

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consider any of the mitigating circumstances proven by a preponderance of the

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evidence.” (Doc. 32 at 81.) In Claim 20, he alleges that there was insufficient evidence

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to prove the pecuniary gain aggravating factor. (Id. at 99.) The Arizona Supreme Court

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denied these claims on direct review. Roseberry, 210 Ariz, at 369, 373, 111 P.3d at 411,

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415. In Claim 24, Roseberry alleges that his rights were violated by individual and

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cumulative trial court errors. (Id. at 105.) The Arizona Supreme Court addressed several

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of these allegations. Id. at 369–70, 111 P.3d at 411– 412.

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4
5
6
7
8

First, the Court rejects Roseberry’s assertion that Martinez, not Pinholster,
governs these claims because “the evidence and allegations [he] seeks to develop
fundamentally alter the claim raised to the state court.”

(Doc. 68 at 22, 27, 28.)

Roseberry cites Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc), which allows a
federal habeas court to consider new evidence that “fundamentally altered” a previously
asserted claim of ineffective assistance of counsel, explaining that Pinholster’s
prohibition on new evidence applies “only to claims ‘previously adjudicated on the merits

9

in State court proceedings.’” Id. at 1320. Even if Roseberry discovered new evidence so

10

that these claims were fundamentally altered and therefore procedurally defaulted, he

11

cannot overcome the default under Martinez because Martinez applies only to claims of

12

ineffective assistance of trial counsel. Claims 11, 20, and 24 do not allege ineffective

13

assistance of trial counsel.

14

Additionally, Roseberry is not entitled to evidentiary development on these claims

15

because they may be resolved on the record. See Landrigan, 550 U.S. at 474. In support

16

of his allegations in Claim 11, Roseberry argues that the jury was improperly instructed.

17

(Doc. 32 at 81–83; see Doc. 49 at 45–49.) The record is complete with respect to this

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19
20
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22
23

allegation. Roseberry also asserts that the jurors did not understand the concept of
mitigation because of trial counsel’s poor presentation, and that some jurors were not
open to considering mitigation because of counsel’s poor performance during jury
selection. (Id.) To the extent Roseberry seeks to expand the record with declarations
detailing the jurors’ sentencing phase deliberations, such evidence is not admissible and
the Court will not consider it.

See Tanner v. United States, 483 U.S. 107, 121

(1987); Fed. R. Evid. 606(b).

24

Claim 20 challenges the sufficiency of the evidence presented at trial and

25

sentencing in support of the pecuniary gain aggravating factor. Additional evidence is

26

unnecessary because there is nothing that can be added to the facts upon which the state

27

courts’ findings were based.

“Whether the evidence was sufficient . . . must be

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1

determined from a review of the evidence in the record in the state proceedings. No

2

evidentiary hearing [is] required.” Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir. 1984);

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4
5
6
7
8

see Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (articulating the standard for habeas
review of state court’s application of aggravating factor—i.e., whether any rational
factfinder could have determined that the factor was proved); Jackson v. Virginia, 443
U.S. 307, 322 (1979) (explaining this type of claim almost never necessitates an
evidentiary hearing).
As already noted, Claim 24 consists of numerous subclaims alleging trial error,
some of which were exhausted in state court. The Court finds these claims resolvable on

9

the state court record. A number of the exhausted subclaims challenge the court’s

10

instructions to the jury. Another subclaim alleges that the trial court improperly struck

11

jurors for cause.

12

Totten, 137 F.3d at 1176; see Landrigan, 550 U.S. at 474. Other subclaims raise purely

13

legal questions challenging the trial court’s failure to strike the pecuniary gain

14

aggravating factor and alleging an ex post facto violation.

15

development is not necessary to resolve these subclaims. Beardslee, 358 F.3d at 585.

No further evidence is necessary to address these allegations.

Again, evidentiary

16

C.

17

Roseberry raises three ineffective assistance of counsel claims, each consisting of

18
19
20
21
22

Ineffective Assistance of Counsel Claims

numerous subclaims. In Claim 25, Roseberry alleges that trial counsel performed
ineffectively.

(Doc. 32 at 138.)

In Claim 26, he alleges ineffective assistance of

appellate counsel. (Id. at 169.) In Claim 28, he alleges ineffective assistance of PCR
counsel. (Id. at 182.)
Claims of ineffective assistance of counsel are governed by the principles set forth
in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a

23

petitioner must show that counsel’s representation fell below an objective standard of

24

reasonableness and that the deficiency prejudiced the defense. Id. at 687–88.

25

Respondents have waived any procedural default defense to these claims. (Doc.

26

45 at 105.) They contend, therefore, that while the claims are reviewed de novo, the

27

“liberal evidentiary development allowed with Martinez claims does not apply here.” Id.

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at 106. The Ninth Circuit, however, has rejected this proposition, finding “there is no

2

merit to the government’s argument that it can prevent Martinez from applying by simply

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10

refraining from raising the procedural bar.” Hill v. Glebe, 654 F.App’x 294, 295 (9th Cir.
2016). The court explained:
The federal courts can apply the procedural bar sua sponte. And the state’s
position that it must voluntarily raise the procedural bar before a petitioner
can have a hearing under Martinez would lead to absurd results: The
government could opt never to raise the procedural bar, effectively
preventing a petitioner from ever developing a factual record to support his
ineffective assistance claim.
Id. (citations omitted).
The Court cannot, as Respondents suggest, review de novo a claim that was not
presented in state court without taking into account the evidence now offered to support

11

that claim. Therefore, Respondents’ waiver of procedural default does not prevent the

12

Court from considering Roseberry’s requests for evidentiary development.

13

1.

14

Roseberry requests discovery, expansion of the record, and an evidentiary hearing

15

in support of his ineffective assistance of counsel claims. Claim 25 consists of dozens of

16

allegations that trial counsel performed ineffectively at both the guilt and penalty phases

17

of trial.

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19
20
21

Claim 25

The allegations of guilt-phase ineffective assistance of counsel challenge
seemingly every aspect of counsel’s performance, and include the overarching claim that
counsel were not qualified to try a capital case.4 (Doc. 32 at 138–57.) Having reviewed
these allegations, the Court concludes that the claims, whether exhausted or not, can be
resolved on the state court record, including the trial transcript. Evidentiary development

22

is not necessary. See, e.g., Beardslee, 358 F.3d at 585 (finding evidentiary hearing not

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24
25
26
27
28

4

Roseberry alleges, for example, that trial counsel performed ineffectively by
failing to protect his right to a speedy trial, failing to perform an adequate pretrial
investigation, failing to secure necessary experts, failing to supervise the defense team,
performing ineffectively during jury selection and alienating the jurors, failing to object
to evidence, failing to object to prosecutorial misconduct, failing to adequately examine
witnesses, failing to move to withdraw from representation, failing to maintain a
relationship with Roseberry, and failing to adequately object to jury instructions. (Doc.
32 at 138–57.)
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1

warranted on claim of ineffective assistance based on counsel’s failure to object to

2

prosecutorial misconduct because “[t]he relevant facts . . . involve prosecutorial

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5
6
7
8
9
10

comments entered directly into the court’s record, leaving no disputed facts at issue”);
Totten, 137 F.3d at 1176. There are no disputed facts about these aspects of counsel’s
performance.
Roseberry also alleges that trial counsel performed ineffectively at sentencing,
principally by failing to offer additional, more powerful, mitigating evidence of his
deprived upbringing and his compromised cognitive state at the time of the crimes.
According to Roseberry, a constitutionally sufficient sentencing stage performance would
have resulted in presentation of evidence that he suffered from “vascular dementia at the
time of the crime.” (Doc. 68 at 32.)

11

a.

12

For the mitigation phase of sentencing, trial counsel retained Jack Brown, a retired

13

probation officer, and Dr. Virginia Conner, a neuropsychologist. Brown, who had no

14

training as a mitigation specialist in capital cases, testified that he was asked to gather

15

“[a]ll the background information that can be found—medical, educational, employment,

16

marital.” (RT 6/4/03 pm, at 17.) Brown met with Roseberry four times. (Id. at 18.) He

17

interviewed family members, including the first of Roseberry’s ex-wives, his oldest

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19
20
21
22
23

Additional background

daughter, and his daughter’s husband, as well as a financial officer who worked for
Roseberry’s asbestos removal company and Roseberry’s childhood best friend. (Id. at
19–20, 26, 31–32, 34.) Brown was unable to reach Roseberry’s second and third wives.
(Id. at 29.) Brown also obtained Roseberry’s Social Security file and medical records
from “about a dozen doctors and institutions” based on information provided by
Roseberry.

(Id. at 24.)

Counsel provided Brown with medical releases signed by

Roseberry. (Id.)

24

At the mitigation hearing, Brown testified that Roseberry’s background was

25

“average.” (Id. at 19.) Although his family was “relatively poor,” Roseberry was not

26

aware “he was poor at the time.” (Id.) Brown testified that two of Roseberry’s children

27

had died in infancy. (Id.) He testified that Roseberry was a hard worker who had owned

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a successful asbestos removal business. (Id. at 20–21.) He explained that Roseberry was

2

now disabled and unable to work due to emphysema. (Id. at 23.) Brown also testified

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4
5
6
7
8

about Roseberry’s other ailments: Roseberry had a stent implanted in his artery in 2000;
he had prostate surgery in 1999; and he had been diagnosed with adult onset diabetes.
(Id. at 25–27, 39.) Roseberry’s first wife and daughter told Brown that Roseberry had
been hit in the head by a steel bar at work. (Id. at 28–29.)
Roseberry’s oldest daughter and son-in-law told Brown that Roseberry was a very
good father and a “fantastic person.” (Id. at 32.) Roseberry’s childhood friend told
Brown that Roseberry was a “nice guy,” “not a fighter,” a “hard worker,” and “easy to

9

get along with.” (Id. at 35.) Brown noted that Roseberry did not have a criminal history.

10

(Id. at 39–40.) Roseberry’s first wife and son-in-law told Brown that Roseberry liked to

11

gamble. (Id. at 36.)

12

Brown testified that Roseberry’s memory seemed to be getting worse over the

13

course of their interviews. (Id. at 33–34.) He noted that Roseberry’s affect was flat, but

14

he cried when discussing the deaths of his young children. (Id. at 33.)

15

Dr. Conner, the neuropsychologist, testified that she first performed an intake

16

interview with Roseberry to determine “the context of [his] life,” including the presence

17

of any developmental disorders, hyperactivity, a personality disorder, oppositional

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19
20
21
22

defiance, or a conduct disorder. (Id. at 70.) She also conducted a record review and
wrote a report detailing the materials she reviewed and summarizing her findings. (Id. at
71.) Dr. Conner tested Roseberry’s IQ, which she measured at 108, and his memory. (Id.
at 71–72, 77.) She also administered a personality inventory and psychopathy checklist
to rule out personality disorders or psychopathology. (Id. at 72–73, 88.)
Dr. Conner concluded that Roseberry suffered from “mild impairment” involving

23

“frontal lobe functioning.” (Id. at 77.) This impairment would affect his judgment,

24

memory, and motor skills. (Id.)

25

Dr. Conner discussed a number of risk factors that could have contributed to

26

Roseberry’s impairment, including two head injuries. (Id.) She testified that “according

27

to medical history,” Roseberry had fallen from a barn and experienced loss of

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consciousness with three hours of antegrade amnesia. (Id. at 78.) She also noted the

2

injury Roseberry had suffered at work, which resulted in brief loss of consciousness,

3
4
5
6
7
8

disorientation, and “typical head injury sequelae.” (Id.) Dr. Conner testified that the
injury “wasn’t enough that it was going to drastically make an impairment that he
couldn’t function,” but it was “one neurological risk factor.” (Id.) Diabetes was another
risk factor because it affects blood flow to the brain. (Id.) Dr. Conner testified that
Roseberry had suffered two diabetic comas. (Id. at 80.) Finally, Dr. Conner stated that
Roseberry’s high blood pressure and sleep apnea were additional risk factors for brain
impairment. (Id. at 80–81.)

9

Roseberry’s counsel also presented videotaped statements from his mother,

10

daughter, and son-in-law, and a letter from a friend. These witnesses offered humanizing

11

information showing that Roseberry was a good father and father-in-law and praising him

12

as kind, generous, and a man of integrity. The videotaped witnesses also discussed

13

Roseberry’s various ailments and head injuries.

14

During the PCR proceedings, counsel raised a claim of ineffective assistance of

15

counsel at sentencing, challenging counsel’s performance with respect to the testimony of

16

Brown and Dr. Conner. (Doc. 46-2, Ex. RRRRR at 36–39.) PCR counsel ultimately

17

conceded he could not establish prejudice; the PCR court agreed, denying the claim as

18

meritless. (Doc. 46-4, Ex. HHHHHHH at 6–7.)
b.

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20
21
22

Analysis

Roseberry seeks to expand the record with expert reports. Two of the reports are
from experts retained by PCR counsel. In a report dated April 19, 2012, Dr. Barry
Morenz, a psychiatrist, diagnosed Roseberry with cognitive disorder not otherwise
specified (“NOS”), depressive disorder NOS, anxiety disorder NOS, and pathological

23

gambling; personality disorder NOS with paranoid and narcissistic features; and high

24

blood pressure, sleep apnea, diabetes, angina, and prostate problems. (Doc. 62-5, Ex.

25

205.)

26

Roseberry was unable to assist in his “appeals.” (Id.)

Dr. Morenz also opined that due to these mental and physical difficulties,

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Dr. Alex Hishaw, a neuropsychiatrist, examined Roseberry and prepared a report

2

dated June 28, 2011. (Id., Ex. 206.) Roseberry underwent an EEG and an MRI. The

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4
5
6
7
8

EEG was normal. (Id. at 4.) The MRI revealed “no evidence of mass or mass effect,
mild age related cerebral volume loss, areas of T2 prolongation in the deep
periventricular white matter that was felt to represent diffuse microangiopathic changes,
and no areas of abnormal enhancement.”

(Id.)

Dr. Hishaw noted that Roseberry

experienced issues with fatigue and concentration. He found no “underlying dementing
process such as Alzheimer’s” and no “difficulties in other areas of cognition such as
language, visuospatial orientation, or frontal/executive function.” (Id. at 5.) Dr. Hishaw

9

acknowledged Roseberry’s “history of several head injuries,” but noted that he was never

10

hospitalized and never suffered a sustained period of unconsciousness “and so at the most

11

may have experienced mild traumatic brain injuries in the past.” (Id.) The impacts the

12

injuries “might have had on his current cognition are unknown.” (Id.) Dr. Hishaw

13

concluded, “I do not find significant reason for direct neurologically associated cognitive

14

concern.” (Id. at 6.)

15

Roseberry also seeks to expand the record with a report from Dr. Robert

16

Heilbronner, a neuropsychologist, dated February 17, 2017, and a letter dated March 10,

17

2017, from Dr. Erin Bigler, another neuropsychologist, who reviewed the brain imaging

18
19
20
21
22

and neuropsychological studies performed on Roseberry. (Doc. 62, Ex’s 207, 209.) Drs.
Heilbronner and Bigler agree that “Roseberry had compromised neuropsychological
function at the time of the crimes.” (Doc. 62, Ex. 209 at 6.) They base their conclusion
on neuropsychological test results as well as information provided by family members
describing changes in Roseberry’s behavior around the time of the crimes, including
increased agitation and anxiety, restlessness, paranoia, susceptibility to the influence of

23

others, and out-of-control gambling. (Id.) Although Heilbronner and Bigler did not rule

24

out head trauma as the cause of the decline in Roseberry’s brain function, Bigler opined

25

that the “the imaging reflects more of a neurodegenerative state consistent with vascular

26

pathology or progressive neurodegeneration.” (Id.)

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In addition, Roseberry seeks to expand the record with declarations from family

2

members and acquaintances who attest that he grew up in a poor family, that his health

3
4
5
6
7
8

was bad, that his mental status had been in decline and his behavior had changed around
the time of the crimes, and that he had a serious gambling problem. (Doc. 57, Ex’s 7–
34.) The declarants also state that their belief Roseberry was either too timid or too smart
to commit such a violent and “dumb” crime. (Id., see, e.g., Ex’s 16, 17, 23.)
Having reviewed these materials and the other documents with which Roseberry
seeks to expand the record in support of his claims of ineffective assistance of counsel at
sentencing, the Court concludes that additional evidentiary development is unnecessary

9

for the Court to address the merits of the allegations. The Court will expand the record to

10

include the materials relevant to the claim. These include Exhibits 1–34, 90–125, 129–

11

34, and 204–10. With these exhibits, the record is sufficient for the Court to assess,

12

under both prongs of Strickland, Roseberry’s challenges to counsel’s investigation and

13

presentation

14

neuropsychological status at the time of the crimes. The Court denies Roseberry’s

15

request to expand the record with other materials and denies his request for discovery and

16

an evidentiary hearing.

17
18
19
20

2.

of

mitigating

evidence,

including

evidence

of

Roseberry’s

Claim 26

Roseberry alleges numerous instances of ineffective assistance of appellate
counsel (Doc. 32 at 169–179), two of which were raised by PCR counsel and denied on
the merits.5 (Doc. 46-2, Ex. RRRRR at 4–19; Doc. 46-4, Ex. HHHHHHH at 3–5).
Respondents have waived default with respect to the other allegations.6

21
22
23
24

5

PCR counsel argued that appellate counsel performed ineffectively by failing to
raise a claim that the jury was required to make the Enmund/Tison findings and by failing
to challenge the trial court’s “nexus” jury instruction concerning mitigating evidence.
(Doc. 46-2, Ex. RRRRR at 4–19.)
6

25
26
27
28

The Court notes that these unexhausted and defaulted claims would have been
barred from review if Respondents had not waived the procedural default defense.
Martinez does not apply to claims of ineffective assistance of appellate counsel.
In Davila v. Davis, 137 S. Ct. 2058 (2017), the Supreme Court declined to extend
Martinez to “allow a federal court to hear a substantial, but procedurally defaulted, claim
of ineffective assistance of appellate counsel when a prisoner’s state postconviction
counsel provides ineffective assistance by failing to raise that claim.” Id. at 2065.
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1

Evidentiary development of Claim 26 is not warranted because the record is

2

complete with respect to appellate counsel’s performance. See Landrigan, 550 U.S. at

3
4
5
6
7

474; Totten, 137 F.3d at 1176. “When a claim of ineffective assistance of counsel is
based on failure to raise issues on appeal . . . it is the exceptional case that could not be
resolved on an examination of the record alone.” Gray v. Greer, 800 F.2d 644, 647 (7th
Cir. 1986). This is not one of those “exceptional cases.” Roseberry has not identified
any disputed facts relevant to his appellate ineffective assistance claims. See Beardslee,
358 F.3d at 585.

8

3.

9

Claim 28

Roseberry alleges that PCR counsel performed ineffectively. (Doc. 32 at 180.)

10

Evidentiary development is denied with respect to this claim.

11

performance is at issue only to the extent it serves as cause under Martinez for the default

12

of Roseberry’s ineffective assistance of trial counsel claims. Because Respondents have

13

waived the default of those claims, additional evidence regarding PCR counsel’s

14

performance is irrelevant.

15

III.

PCR counsel’s

CONCLUSION

16

Expansion of the record is appropriate with respect to Roseberry’s allegations of

17

ineffective assistance of counsel at sentencing. His remaining requests for evidentiary

18

development are denied.
Accordingly,

19
20

IT IS ORDERED denying in part Roseberry’s motion for evidentiary
development (Doc. 57) as set forth herein.

21
22
23

IT IS FURTHER ORDERED granting Roseberry’s request to expand the record
to include the following materials attached to his motion for evidentiary development
(Doc. 57; see Docs. 57–62): Exhibits 1–34, 90–125, 129–34, and 204–10.

24
25

/ / /

26

/ / /

27

/ / /

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1
2
3

IT IS FURTHER ORDERED dismissing Claim 45 without prejudice as
premature.
Dated this 30th day of January, 2018.

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