Andriano v. Ryan et al
Filing
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ORDER: IT IS ORDERED denying Andriano's motion for evidentiary development (Doc. 45 ). IT IS FURTHER ORDERED denying Claims 6, 10, 11, 15, 18, 19A, and 21C, 21D, and 21E as procedurally defaulted and barred from federal review. IT IS FURTHER ORDERED denying Claims 4, 17, 22, 31, 35, and 36 as meritless [see attached Order for details]. Signed by Senior Judge Susan R Bolton on 8/30/18. (MAW)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Wendi Elizabeth Andriano,
Petitioner,
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v.
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No. CV-16-01159-PHX-SRB
ORDER
Charles L. Ryan, et al.,
DEATH PENALTY CASE
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Respondents.
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Before the Court is Petitioner Wendi Andriano’s Motion for Evidentiary
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Development. (Doc. 45.) Respondents filed a response in opposition to the motion and
Andriano filed a reply. (Docs. 60, 63.) The motion is denied as set forth herein.
I.
BACKGROUND
In 2004, Andriano was convicted of one count of first-degree murder and
sentenced to death for the killing of her terminally ill husband. The following facts are
taken from the opinion of the Arizona Supreme Court affirming the conviction and
sentence, State v. Andriano, 215 Ariz. 497, 161 P.3d 540 (2007), and from the Court’s
review of the record.
At about 2:15 a.m. on October 8, 2000, Andriano called Chris, a coworker who
lived at the same apartment complex, and asked her to watch the Andrianos’ two children
while she took her husband, Joe, to the doctor. Andriano met Chris outside the apartment
and told her Joe was dying. She also stated that she hadn’t called 911 yet. Chris urged her
to do so.
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Upon entering the apartment, Chris found Joe lying on the living room floor in the
fetal position. He had vomited, appeared weak, and was having difficulty breathing.
While Andriano was in another room calling 911, Joe told Chris that he needed help and
had “for a long time.” He asked why it was taking 45 minutes for the paramedics to show
up.
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Chris heard the paramedics arrive and went outside to direct them to the
apartment. As the paramedics were unloading their equipment, Andriano came out of the
apartment screaming at them to leave. She returned to the apartment and slammed the
door. Chris and the paramedics knocked on the door but no one answered. The Phoenix
Fire Department called the Andrianos’ home telephone in an attempt to get Andriano to
open the door. They notified the paramedics that contact had been made with someone in
the apartment who would come out to speak with them. Instead of coming out the front
door, which opened onto the living room, Andriano went out through the back door,
climbed over the patio wall, and walked around the apartment building to the front door.
She had changed her shirt and her hair was wet. She told the paramedics that Joe was
dying of cancer and had a do-not-resuscitate order. The paramedics left without entering
the apartment.
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Andriano called 911 again at 3:39 a.m. The same paramedics responded. When
they entered the apartment they found Joe lying dead on the floor in a pool of blood. As
determined by the medical examiner, Joe had sustained brain hemorrhaging caused by
more than 20 blows to the back of his head. He had also suffered a stab wound to the side
of his neck that severed his carotid artery. A broken bar stool covered in blood was found
near Joe’s body, along with pieces of a lamp, a bloody kitchen knife, a bloody pillow, and
a belt.
Trace amounts of the poison sodium azide were found in Joe’s blood and gastric
contents, and in the contents of a pot and two soup bowls in the kitchen. Police also
found gelatin capsules filled with sodium azide.
Defensive wounds on Joe’s hands and wrists indicated that he was conscious for at
least part of the attack. Blood spatter and other evidence indicated that he was lying down
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during the attack. The absence of arterial spurting on the belt and the knife indicated that
the items were placed beside Joe’s body after he died.
At trial, Andriano testified that Joe, who was suffering from terminal cancer and
had been contemplating suicide, decided to take his life that night and swallowed several
of the sodium azide capsules. The poison failed to kill him, however, and he became
verbally abusive, accusing Andriano of infidelity and violently attacking her when she
admitted to an affair. Andriano testified that Joe tried to strangle her with a telephone
cord but she was able to cut the cord with a knife. When Joe picked up the knife she
struck him with the bar stool in self-defense. She then hid in the bathroom but when she
returned Joe still had the knife in his hand and was threatening to kill himself. She
testified that she tried to stop him and during the resulting struggle his neck was cut.
Andriano also presented evidence, including expert testimony, that she was a
victim of domestic abuse. Andriano testified that throughout the course of their marriage
Joe had been emotionally, physically, and sexually abusive. The expert testified about the
psychological effects of domestic abuse.
The jury found Andriano guilty of first-degree murder. During the penalty phase,
the jury found one aggravating factor: that the murder had been committed in an
“especially cruel manner” under A.R.S. § 13-751(F)(6). The jury then found that the
evidence presented in mitigation was not sufficiently substantial to call for leniency and
returned a verdict of death.
Andriano sought post-conviction relief (“PCR”) in state court, filing a petition
raising claims of ineffective assistance of trial and appellate counsel.1 (PCR pet., Doc.
28-1, Ex. OOOOO.) The court dismissed the majority of Andriano’s claims as precluded
or not colorable, but granted a hearing on her penalty-phase ineffectiveness and conflictof-interest claims. (ME 10/30/12.)2 After an eight-day evidentiary hearing, the court
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Maricopa County Superior Court Judge Brian Ishikawa presided over the trial
and PCR proceedings.
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“ME” refers to the minute entries of the state court.
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dismissed both claims. (ME 11/1/14.) The Arizona Supreme Court denied review without
comment.
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Andriano filed a petition for writ of habeas corpus in this Court on March 6, 2017.
(Doc. 17.) She filed the pending motion for evidentiary development on December 4,
2017. (Doc. 45.)
II.
APPLICABLE LAW
A.
AEDPA
Federal habeas claims are analyzed under the framework of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). Under the AEDPA, a petitioner is not entitled
to habeas relief on any claim adjudicated on the merits in state court unless the state
court’s adjudication (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law or (2) resulted in a decision
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 (Terry) 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).
In Cullen v. Pinholster, 563 U.S. 170, 181 (2011), the Court reiterated that
“review under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits.” See Murray (Robert) v. Schriro, 745 F.3d 984,
998 (9th Cir. 2014) (“Along with the significant deference AEDPA requires us to afford
state courts’ decisions, AEDPA also restricts the scope of the evidence that we can rely
on in the normal course of discharging our responsibilities under § 2254(d)(1).”).
However, Pinholster does not bar evidentiary development where the petitioner has
satisfied § 2254(d) based solely on an assessment of the state court record. See Crittenden
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v. Chappell, 804 F.3d 998, 1010 (9th Cir. 2015); Sully v. Ayers, 725 F.3d 1057, 1075 (9th
Cir. 2013).
For claims not adjudicated on the merits in state court, federal review is generally
not available when the claims have been denied pursuant to an independent and adequate
state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In Arizona, there
are two avenues for petitioners to exhaust federal constitutional claims: direct appeal and
PCR proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR
proceedings and provides that a petitioner is precluded from relief on any claim that
could have been raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3).
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
exception” to the rule announced in Coleman. Under Martinez, a petitioner may establish
cause for the procedural default of an ineffective assistance claim “by demonstrating two
things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should
have been raised, was ineffective under the standards of Strickland . . .’ and (2) ‘the
underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to
say that the prisoner must demonstrate that the claim has some merit.’” Cook v. Ryan,
688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 14). The Ninth Circuit
has explained that “PCR counsel would not be ineffective for failure to raise an
ineffective assistance of counsel claim with respect to trial counsel who was not
constitutionally ineffective.” Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012).
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
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expand the scope of Martinez beyond the circumstances present in Martinez”); Hunton v.
Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013) (denying petitioner’s argument that
Martinez permitted the resuscitation of a procedurally defaulted Brady claim, holding that
only the Supreme Court could expand the application of Martinez to other areas); see
Davila v. Davis, 137 S. Ct. 2058, 2062–63 (2017) (explaining that the Martinez exception
does not apply to claims of ineffective assistance of appellate counsel).
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
Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Whether a petitioner has established
“good cause” for discovery requires a habeas court to determine the essential elements of
the petitioner’s substantive claim and evaluate whether “specific allegations before the
court show reason to believe that the petitioner may, if the facts are fully developed, be
able to demonstrate that he is . . . entitled to relief.” Bracy, 520 U.S. at 908–09 (quoting
Harris v. Nelson, 394 U.S. 286, 300 (1969)) (internal quotation marks omitted).
An evidentiary hearing is authorized under Rule 8 of the Rules Governing §
2254 Cases. Pursuant to § 2254(e)(2), however, a federal court may not hold a hearing
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. §
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
finder would have found the [petitioner] guilty of the underlying offense.” Id.
When the factual basis for a claim has not been fully developed in state court, a
district court first determines whether the petitioner was diligent in attempting to develop
the record. See Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999). The diligence
assessment requires a determination of whether a petitioner “made a reasonable attempt,
in light of the information available at the time, to investigate and pursue claims in state
court.” Williams (Michael), 529 U.S. at 435. For example, when there is information in
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. The Ninth Circuit has explained that “a petitioner who ‘knew of the existence of [ ]
information’ at the time of his state court proceedings, but did not present it until federal
habeas proceedings, ‘failed to develop the factual basis for his claim diligently.’”
Rhoades v. Henry, 598 F.3d 511, 517 (9th Cir. 2010) (quoting Cooper-Smith v.
Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005), overruled on other grounds by Daire v.
Lattimore, 812 F.3d 766 (9th Cir. 2016)).
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
allegations or otherwise precludes habeas relief, a district court is not required to hold
an evidentiary hearing.”). Likewise, “an evidentiary hearing is not required if the claim
presents a purely legal question and there are no disputed facts.” Beardslee v. Woodford,
358 F.3d 560, 585 (9th Cir. 2004); see Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th
Cir. 1992).
Finally, under Rule 7 of the Rules Governing Section 2254 Cases, a federal habeas
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
dispose of some habeas petitions not dismissed on the pleadings, without the time and
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); Downs v.
Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000) (explaining that the need for an
evidentiary hearing may be obviated by expansion of record).
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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
when intent is to bolster the merits of a claim with new evidence); Holland v. Jackson,
542 U.S. 649, 652–53 (2004) (per curiam). Accordingly, when a petitioner seeks to
introduce new affidavits and other documents never presented in state court, he must
either demonstrate diligence in developing the factual basis in state court or satisfy the
requirements of § 2254(e)(2).
III.
ANALYSIS
Andriano seeks evidentiary development on 26 claims or subclaims in her habeas
petition, including both exhausted and unexhausted claims. A number of the claims allege
ineffective assistance of counsel. Because these require a different analytical framework,
the Court’s discussion proceeds as follows.
A.
Non-Ineffective Assistance of Counsel Claims
1.
Exhausted claims
Claim 4:
Andriano alleges that the trial court violated her due process rights by admitting
evidence of her extramarital affairs and her attempts to fraudulently obtain life insurance
on her husband. (Doc. 17 at 87–101.) Andriano seeks to depose the prosecutor and
requests a subpoena duces tecum to the Maricopa County Attorney’s Office for his
personnel file. (Doc. 45 at 21–25.) She also requests expansion of the record to include
appellate counsel Peg Green’s notes; documents relating to the Arizona Capital
Representation Project’s assistance with Andriano’s appeal; declarations from Green,
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ethics attorney Karen Clark, sodium-azide expert Dr. Eric Betterton, trial witness James
Yost, and trial counsel Patterson3; files relating to a bar complaint against the prosecutor;
media reports about the prosecutor; and portions of the Phoenix Police Departmental
Report concerning this case. (Id., & Ex’s 10, 11, 25, 28–34.) Andriano also seeks an
evidentiary hearing. (Id.)
The Arizona Supreme Court rejected this claim on the merits. Andriano, 215 Ariz.
at 502–03, 161 P.3d at 545–46. The court held that the evidence was admissible under
Rule 404(b) of the Arizona Rules of Evidence and was not unfairly prejudicial. Id. Unless
this ruling is contrary to or an unreasonable application of clearly established federal law
under 28 U.S.C. § 2254(d)(1), evidentiary development is prohibited. The ruling does not
meet that standard.
State court evidentiary rulings cannot serve as a basis for habeas relief unless the
asserted error rises to the level of a federal constitutional violation. See Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991). “The admission of evidence does not provide a
basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due
process.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (internal quotation
marks and citation omitted); see Jammal v. Van de Kamp, 926 F.2d 918, 919–20 (9th Cir.
1991). The AEDPA further restricts the availability of federal habeas review for
evidentiary claims because the Supreme Court “has not yet made a clear ruling that
admission of irrelevant or overtly prejudicial evidence constitutes a due process violation
sufficient to warrant issuance of the writ.” Holley, 568 F.3d at 1101; see Bugh v. Mitchell,
329 F.3d 496, 512 (6th Cir. 2003) (“There is no clearly established Supreme Court
precedent which holds that a state violates due process by permitting propensity evidence
in the form of other bad acts evidence.”). Because it does not satisfy § 2254(d)(1), Claim
4 is denied as without merit.
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Andriano indicates that she will supplement her motion for evidentiary
development with the Patterson declaration when it is available, but the declaration has
not been filed. (See Doc. 45 at 24.)
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Moreover, whether or not the Arizona Supreme Court’s ruling satisfies § 2254(d),
evidentiary development is not warranted because the claim presents a legal question and
can be resolved on the state court record. Beardslee, 358 F.3d at 585–86; Totten, 137
F.3d at 1176.
Claim 17:
Andriano alleges that A.R.S. § 13–751(F)(6), the especially cruel aggravating
factor, is facially vague and overbroad. (Doc. 17 at 155–65.) She seeks discovery in the
in the form of a subpoena to each Arizona county attorney’s office. (Doc. 45 at 41–42.)
The request is denied.
The Arizona Supreme Court rejected this claim on direct appeal. Andriano, 215
Ariz. at 505–06, 161 P.3d at 548–49. Pinholster bars evidentiary development unless the
claims satisfies § 2254(d). It does not.
The United States Supreme Court has upheld the (F)(6) aggravating factor against
allegations that it is vague and overbroad, rejecting a claim that Arizona has not
construed the factor in a “constitutionally narrow manner.” See Lewis v. Jeffers, 497 U.S.
764, 774–77 (1990); Walton v. Arizona, 497 U.S. 639, 649–56 (1990), overruled on other
grounds by Ring v. Arizona, 536 U.S. 584 556 (2002). Andriano’s challenge to the (F)(6)
factor is without merit, and Claim 17 is denied.
Claim 22:
Andriano alleges that the death penalty is categorically cruel and unusual
punishment. (Doc. 17 at 220–23.) She seeks to expand the record with reports
questioning the deterrent value of capital punishment. (Doc. 45 at 56–57, & Ex’s 38–40.)
The request is denied.
The Arizona Supreme Court rejected this claim on direct appeal. Andriano, 215
Ariz. at 513, 161 P.3d at 556. Pinholster bars evidentiary development unless the claim
satisfies § 2254(d), which Claim 22 does not. There is no clearly established federal law
supporting the claim that the death penalty is categorically cruel and unusual punishment
or that it serves no purpose. See Gregg v. Georgia, 428 U.S. 153, 187 (1976); Hall v.
Florida, 134 S. Ct. 1986, 1992–93 (2014). Claim 22 is denied.
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Claim 31:
Andriano alleges that Arizona’s capital sentencing statute is unconstitutional
because it fails to channel the jurors’ discretion. (Doc. 17 at 236–39.) She seeks a
subpoena to each Arizona county attorney’s office. (Doc. 45 at 57.) The request is denied.
The Arizona Supreme Court rejected this claim on direct appeal. Andriano, 215
Ariz. at 513–14, 161 P.3d at 556–57. The claim does not satisfy 2254(d). Rulings of both
the Ninth Circuit and the United States Supreme Court have upheld Arizona’s deathpenalty statute against allegations that particular aggravating factors do not adequately
narrow the sentencer’s discretion. See Jeffers, 497 U.S. at 774–77 (1990); Walton, 497
U.S. at 649–56; Woratzeck v. Stewart, 97 F.3d 329, 335 (9th Cir. 1996). The Ninth
Circuit has explicitly rejected the argument that Arizona’s death penalty statute is
unconstitutional because it “does not properly narrow the class of death penalty
recipients.” Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998). Pinholster bars
evidentiary development, and the claim is denied as meritless.
2.
Unexhausted claims
Claim 1 (prosecutorial misconduct):
In this subclaim of Claim 1, Andriano alleges that the prosecutor engaged in
misconduct throughout her trial. (Doc. 17 at 35–59.) Specifically, she alleges that he
inappropriately focused on salacious, irrelevant, and misleading information about her
sexual history; misstated facts, interjected his personal opinion, and improperly vouched
for the State’s witnesses and experts; and made unfounded attacks on defense witnesses.
(Id.; see Doc. 42 at 23.) In support of this claim Andriano incorporates the requests for
evidentiary development she made with respect to Claim 4. The requests are denied.
Andriano did not raise this claim on appeal. When she raised the claim during the
PCR proceedings, the court found it “waived pursuant to Rule 32.2(a)(3).”4 (ME
10/30/12 at 3.) Andriano argues that the default of the claim is excused by the ineffective
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The Court rejects Andriano’s argument that Arizona’s procedural-default rules
are not adequate and independent. See Stewart v. Smith, 536 U.S. 856, 860–61 (2002);
Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
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assistance of appellate and PCR counsel. (Doc. 45 at 21.) As noted, ineffective assistance
of PCR counsel excuses only defaulted claims of ineffective assistance of trial counsel.
See Hunton, 732 F.3d at 1126–27. It does not apply to the procedural misconduct
allegations in Claim 1.
Before ineffective assistance of appellate counsel may be used as cause to excuse
a procedural default, the particular ineffective assistance allegation must first be
exhausted in state court as an independent claim. See Edwards v. Carpenter, 529 U.S.
446, 453 (2000) (“an ineffective-assistance-of-counsel claim asserted as cause for the
procedural default of another claim can itself be procedurally defaulted”); Murray v.
Carrier, 477 U.S. 478, 489–90 (1986) (explaining that counsel’s ineffectiveness in failing
to preserve a claim for review in state court can excuse a procedural default only if that
ineffectiveness itself constitutes an independent constitutional claim); Tacho v. Martinez,
862 F.2d 1376, 1381 (9th Cir. 1988).
PCR counsel raised a claim alleging that appellate counsel performed ineffectively
by failing to raise a claim of prosecutorial misconduct. (PCR pet., Doc. 28-1, Ex.
OOOOO at 70.) The PCR court denied the claim, finding that “the prosecutor did not
commit misconduct.” (ME 10/30/12 at 6; see id. at 3.)
For purposes of determining whether Andriano is entitled to evidentiary
development, it is not necessary to resolve whether this claim of ineffective assistance of
appellate counsel constitutes an independent claim excusing the default of the underlying
prosecutorial misconduct claim.
The allegations of misconduct all concern the prosecutor’s conduct during trial.
(Doc. 17 at 35–59.) The only question is a legal one: whether the prosecutor’s actions “so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Additional, extra-record
evidence is not needed to resolve the issue. See Beardslee, 358 F.3d at 585 (finding
evidentiary hearing not warranted on claim of ineffective assistance based on counsel’s
failure to object to prosecutorial misconduct because “[t]he relevant facts . . . involve
prosecutorial comments entered directly into the court’s record, leaving no disputed facts
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at issue”); see also Darden v. Wainwright, 477 U.S. 168, 181–83 (1986) (stating that
habeas review of a prosecutorial misconduct claim necessarily includes a careful review
of the totality of the state court record to determine whether the alleged misconduct
denied petitioner a fair trial). Evidentiary development is not required on an issue that can
be resolved by reference to the state court record. See Totten, 137 F.3d at 1176.
Claims 6, 10, 11, 15, and 18:
These
unexhausted
claims
remain
procedurally
defaulted.
Evidentiary
development is denied.
In Claim 6, Andriano alleges that the trial court’s admission of “unreliable
evidence” regarding sodium azide violated the Fourteenth Amendment. (Doc. 17 at 106–
11.) She requests discovery, expansion of the record, and an evidentiary hearing. (Doc.
45 at 34–39.) In Claim 10, Andriano alleges that the trial court limited her voir dire of
potential jurors and erroneously failed to strike a number of jurors. (Doc. 17 at 129–33.)
In Claim 11, Andriano alleges that the jurors engaged in misconduct by considering
sentencing outcomes during their aggravation-phase deliberations. (Id. at 134–37.) She
seeks to depose all the jurors and requests an evidentiary hearing at which the jurors
would testify.5 (Doc. 45 at 40.) In Claim 15, Andriano alleges that the trial court erred in
permitting the rebuttal testimony of an expert, Dr. Michael Bayless, who was unqualified
to testify on the topic of domestic violence. (Id. at 151.) She seeks to expand the record
with Bayless’ file from the Arizona Board of Psychological Examiners and other
documents (Doc. 45 at 41.) In Claim 18, Andriano alleges that the Arizona Supreme
Court engaged in factfinding, in violation of Apprendi v. New Jersey, 530 U.S. 466
(2000), and found two incorrect facts.6 (Doc. 17 at 165–67.)
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5
As noted below in the Court’s discussion of Claim 20B, the evidence Andriano
seeks about juror deliberations is prohibited under Rule 606(b) of the Federal Rules of
Evidence.
6
The factual errors Andriano cites are the court’s statements that Andriano
testified that Joe slit his own throat and that the blows to his head left his brain matter
exposed. See Andriano, 215 Ariz. at 501, 502, 161 P.3d at 544, 545.
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The Court rejects Andriano’s argument that the default of these claims is excused
by the ineffective assistance of appellate and PCR counsel. Ineffective assistance of
appellate counsel does not apply because the claim that appellate counsel performed
ineffectively on these issues is itself procedurally defaulted. See Carpenter, 529 U.S. at
452; Murray v. Carrier, 477 U.S. at 489. Ineffective assistance of PCR counsel is
inapplicable because it excuses only defaulted claims of ineffective assistance of trial
counsel. See Hunton, 732 F.3d at 1126–27. Andriano asserts no other cause for excusing
the procedural default.
Accordingly, Claims 6, 10, 11, 15, and 18 are denied as procedurally defaulted and
barred from federal review.
Claims 35 and 36:
In Claim 35, Andriano alleges that the practice of death-qualifying potential jurors
is unconstitutional. (Doc. 17 at 248–58.) She seeks discovery in the form of a subpoena
duces tecum to the Maricopa County Attorney’s Office for documents relating to jury
selection in capital cases from 2002 through 2007. (Doc. 45 at 58.) In Claim 36,
Andriano alleges that executing her after a prolonged incarceration would constitute cruel
and unusual punishment. (Doc. 17 at 259–62.) She seeks to depose Charles Ryan, the
Director of the Arizona Department of Corrections, and warden Kim Currier on the
conditions of death row. (Doc. 45 at 59.) She also seeks an evidentiary hearing. (Id.) The
requests are denied.
Andriano did not raise these claims in state court. The claims are therefore
defaulted, and because they fall outside the scope of Martinez, see Hunton, 732 F.3d at
1126–27, the default is not excused and they remain barred from federal review. The
claims are also meritless.
Clearly established federal law holds that the death-qualification process in a
capital case does not violate a defendant’s right to a fair and impartial jury. See Lockhart
v. McCree, 476 U.S. 162, 178 (1986); Wainwright v. Witt, 469 U.S. 412, 424 (1985); see
also Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir. 1996) (denying challenge to death
qualification of Arizona jurors). Claim 35 is denied.
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“The Supreme Court has never held that execution after a long tenure on death
row is cruel and unusual punishment.” Allen v. Ornoski, 435 F.3d 946, 958 (9th Cir.
2006); Smith v. Mahoney, 611 F.3d 978, 998 (9th Cir. 2010). While it has been presented
with multiple opportunities to do so, the Supreme Court has declined to address the
issue. See, e.g., Boyer v. Davis, 136 S. Ct. 1446 (2016); Valle v. Florida, 564 U.S. 1067
(2011); Lackey v. Texas, 514 U.S. 1045 (1995). Because it is unsupported by clearly
established federal law, Claim 36 is denied.
B.
Ineffective Assistance of Counsel Claims
Andriano was represented at trial by lead counsel Daniel Patterson of the
Maricopa County Public Defender’s Office, and David DeLozier who was originally
retained by Andriano’s family.7 Andriano was represented on appeal by Brent Graham of
the Maricopa County Public Defender’s Office and Peg Green. During the PCR
proceedings she was represented by the firms of Lewis and Roca and Foley & Lardner
LLP. (See Doc. 17 at 30.)
Andriano alleges numerous instances of ineffective assistance of trial and
appellate counsel. In support of these claims she requests various forms of evidentiary
development. She seeks to depose members of the defense team, including trial counsel
Patterson and DeLozier, as well as Scott MacLeod and Patrick Linderman, the mitigation
specialists who worked on her case. (See Doc. 45 at 28.) She seeks to expand the record
with an affidavit from Patterson, a report from psychologist Dr. Diana Barnes diagnosing
Andriano with bipolar disorder and Post-Traumatic Stress Disorder (PTSD) and stating
that Andriano experienced symptoms consistent with post-partum depression, and a
declaration from Dr. Marlene Winell diagnosing Andriano with a condition called
“Religious Trauma Syndrome.” (Id. at 30–31.)
With respect to her claims of ineffective assistance of counsel during the
sentencing phase of trial, Andriano seeks depositions of her mother and adoptive father;
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After Patterson’s appointment DeLozier served as second chair pursuant to
Knapp v. Hardy, 111 Ariz. 107, 523 P.2d 1308 (1974).
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an OB/GYN who treated Andriano during her pregnancies; a social worker who spoke
with her after the birth of one of her children; Joe Andriano’s mother, father, and sister;
people affiliated with Andriano’s childhood church; and her former boyfriend Shawn
King. (Id. at 28–30). She also asks to expand the record with various social-history
documents and family records. (Id. at 30.)
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8
Andriano further seeks depositions of PCR counsel in support of her argument that
Martinez applies to excuse her defaulted claims of ineffective assistance of trial counsel.
(Id. at 19–20.)
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11
Finally, Andriano seeks an evidentiary hearing on her ineffective assistance
claims. (Id. at 31–32.) Additional requests for evidentiary development will be discussed
in the context of individual claims.
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1.
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Andriano raised these claims in the PCR proceedings and they were denied on the
merits. As previously discussed, Pinholster bars the Court from considering new
evidence unless the claims satisfy 28 U.S.C. § 2254(d). Evidentiary development is also
inappropriate where the claim can be resolved on the state court record. See Landrigan,
550 U.S. at 474; Beardslee, 358 F.3d at 585.
18
Claim 1:
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Andriano alleges that trial and appellate counsel performed ineffectively by failing
to challenge the prosecutor’s misconduct. (Doc. 17 at 35–59.) She seeks the evidentiary
development listed above for the claim’s misconduct allegations. (Doc. 45 at 21–25.) As
the Court previously explained, the record is complete with respect to the allegations of
prosecutorial misconduct. Beardslee, 358 F.3d at 585. The request for evidentiary
development is denied.
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Claim 2:
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Exhausted Claims
Andriano alleges that DeLozier performed ineffectively due to an actual conflict
of interest arising from the fact that he simultaneously represented her in her criminal
proceeding and her parents in an adoption case involving her children. (Doc. 17 at 59–
68.)
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Andriano seeks to depose DeLozier, her mother, and her stepfather and to expand
the record with DeLozier’s state-bar files, a Pinal County Superior Court minute entry
sanctioning DeLozier for his conduct in the adoption case, a transcript of PCR counsel’s
interview with DeLozier, and a letter DeLozier wrote to Andriano. (Doc. 45 at 25–27 &
Ex’s 1–3, 5.) She also seeks an evidentiary hearing.
The PCR court denied this claim on the merits. (ME 11/1/14 at 18–20.) The court
found that “no conflict existed” because Andriano’s interests and those of her parents
“dovetailed, rather than diverged.” (Id. at 19.)
Andriano fails to establish good cause for her discovery requests. Her requests to
depose DeLozier, her mother, and her stepfather lack the specificity required by Rule 6.
Andriano does not allege specific, relevant facts that might be found in the requested
depositions. See Murphy v. Johnson, 205 F.3d 809, 813–14 (5th Cir. 2000) (explaining
that “petitioners factual allegations must be specific, as opposed to merely speculative or
conclusory, to justify discovery under Rule 6.”); Teti v. Bender, 507 F.3d 50, 60 (1st Cir.
2007) (denying discovery request because petitioner “did not comply with the specific
requirements of Rule (6)(b); his request for discovery is generalized and does not indicate
exactly what information he seeks to obtain.”).
In addition, Andriano is not entitled to expansion of the record because she was
not diligent in presenting these materials in state court. The information about DeLozier’s
representation of Andriano’s parents was available during the PCR proceedings. See
Rhoades, 598 F.3d at 517; Cooper-Smith, 397 F.3d at 1241. Andriano’s requests for
evidentiary development are denied.
Claim 3A:
Andriano alleges that counsel performed ineffectively by failing to investigate and
present mitigation evidence. (Doc. 17 at 72–84.) Respondents argue that Pinholster
prevents the development of new evidence in support of the claim. (Doc. 60 at 26.) They
also contend that evidentiary development is barred because Andriano has not shown
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good cause for the requested discovery and was not diligent in state court under 28
U.S.C. § 2254(e).8 (Id. at 27–28.)
At sentencing, counsel presented evidence supporting several mitigating
circumstances. Family members and friends testified about the stress Andriano
experienced as a result of Joe’s cancer, her good grades in school, her missionary and
community work, her strong religious convictions, and her love for her children.
Correction’s personnel testified that Andriano was a model inmate; they also testified that
she suffered from depression and anxiety and had attempted suicide. Counsel again
presented evidence that Andriano was a domestic violence victim. They also offered
evidence that Andriano may have been sexually abused by her biological father when she
was around the age of two and that a member of her family’s church exposed himself to
her when she was between six and eight years old.
Subsequently, during the PCR proceedings, the state court granted an evidentiary
hearing on Andriano’s claim that trial counsel performed ineffectively in its presentation
of mitigating evidence. Andriano presented evidence from three mental health experts:
Dr. James Hopper, a clinical psychologist; Dr. George Woods, a neuropsychiatrist; and
Dr. Joette James, a clinical neuropsychologist. Andriano’s mother and several childhood
friends also testified. Members of the defense team also testified, including Patterson,
DeLozier, and mitigation specialist MacLeod. Finally, attorney Larry Hammond and
mitigation specialist Keith Rohman testified about the deficiency in trial counsel’s
performance during mitigation. As detailed below, this testimony comprised a thorough
presentation of Andriano’s family background, social history, and mental health issues
and their effect on her criminal behavior.
Dr. Hopper interviewed Andriano for a total of 52 hours; he also interviewed six
other witnesses, reviewed 29 declarations and volumes of other documentary
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Because the Court finds that Andriano is not entitled to evidentiary development
due to her lack of diligence in state court, the Court need not determine whether the claim
satisfies § 2254(d) and is therefore exempt from Pinholster’s restriction on new evidence.
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information, and prepared a 250-page report. (RT 2/3/14, a.m., at 28–31.)9 His testimony
detailed the trauma Andriano experienced during the various stages of her childhood,
including, during her earliest years, severe neglect by her mother, emotional and physical
abuse by her mother and biological father, Skip Robertson, and exposure to child
molesters on her biological father’s side of the family. (Id. at 35–59.)
Dr. Hopper testified that later, after her mother divorced her biological father,
Andriano experienced the “disruptive force” of Alejo Ochoa entering her life. (Id. at 63.)
Her family became involved with an abusive, cult-like religion that practiced corporal
punishment for any lack of compliance and taught women to be submissive to their
husbands. (Id. at 64, 68, 73–78; RT 2/3/14, p.m., at 6–23.) According to Dr. Hopper,
“wherever [Andriano] was, she was surrounded by this kind of sick, disturbed, abusive
community of people beating children and the [sic] ridiculing them and humiliating them
and things like that.” (RT 2/3/14, p.m., at 13.)
As she entered her teenage years Andriano continued to experience “unrelenting”
emotional, physical, and sexual abuse from Alejo. (Id. at 6.) As discussed below, Dr.
Hopper also described particular incidents of sexually inappropriate behavior and sexual
abuse committed by Alejo. (Id. at 17–44.)
According to Dr. Hopper, the cumulative result of these traumas was that
Andriano entered adulthood “severely damaged.” (Id. at 45.) The trauma had left her
unable to regulate impulses and emotions; she suffered from problems with executive
functioning, dissociation and memory loss. (Id. at 45–49.)
Dr. Woods, in performing his neurological examination, interviewed Andriano
three times, interviewed her mother, reviewed a “comprehensive social history,” and
analyzed the results of neuropsychological testing carried out by Dr. Myla Young. (RT
2/5/04 at 48–50.) Dr. Woods diagnosed Andriano with PTSD, complex type; bipolar
disorder; dependent personality disorder; caregiver burden; and cognitive deficits. Dr.
Woods testified that these “neuropsychiatric disorders and cognitive deficits” affected
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9
“RT” refers to the reporter’s transcripts from Andriano’s state court proceedings.
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Andriano’s conduct at the time of the murder. (Id. at 42–43, 111.) The conditions
undermined her ability to handle emotionally complex and stressful circumstances and
impaired her decision-making ability. (See id. at 111.)
Dr. Joette James, a clinical neuropsychologist, also reviewed the data from Dr.
Young’s examination. (RT 2/10/14 at 5.) Based on that information, Dr. James identified
deficits in attention, executive functioning, and processing speed. (Id.) Dr. James testified
that these conditions resulted in impulsivity, difficulty adjusting to changing
circumstances, and a lower threshold for becoming overwhelmed and shutting down in
stressful situations. (Id. at 24–48.)
Among the lay witnesses called at the PCR evidentiary hearing, Donna Ochoa,
Andriano’s mother, testified that there was a history of bipolar disorder and depression in
her family and that she herself had suffered from severe bouts of depression. (RT 2/4/14
at 76–81.) She also testified that she neglected Andriano when she was born (id. at 91–
95) and that she and Andriano’s biological father, Skip, spanked Andriano from the time
she was in diapers
Ochoa testified that on occasion she left Andriano alone with Skip’s father, a
known child molester; that Skip himself went to prison for molesting his stepdaughter
and was accused of molesting his nieces; and that Skip said his brother Tommy probably
molested Andriano. (Id. at 94–104.) She also testified that it became Andriano’s duty to
“minister” to Alejo by massaging his head and back. (Id. at 153–55.) Alejo also made
inappropriate sexual comments to Andriano and bought sexy lingerie for her when she
was just 12 or 13 years old. (Id. at 156.)
Andriano’s childhood friends Kyre Lort, Jeri Lynn Cunningham, and Jasper Neace
testified that the church-affiliated school they attended practiced corporal punishment,
which involved striking children with the so-called “Rod of Correction.” Lort and
Cunningham also testified that Alejo sexually abused them when they were children.
According to Cunningham, Alejo put his hand down her nightgown at a sleepover when
she was 12; took photos of her and Andriano showering; and put his head in her crotch
while she massaged him. (RT 2/4/14 at 222–29.) Lort testified that at sleepovers when
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she was in third grade she and Andriano would play dress-up wearing Donna Ochoa’s
lingerie. (Id. at 47–51.) Alejo would invite Lort and Andriano to his room where he
would be sitting in his underwear. He would touch the girls on their legs, breasts, and
genitals, and they would touch his genitals. (Id. at 51–60.)
Patterson, DeLozier, and MacLeod all testified at the evidentiary hearing about
their performance during the sentencing stage of Andriano’s trial. Patterson testified that
his mitigation strategy was to present Andriano as a good woman—a wonderful mother
and daughter, a good Christian, a devoted wife, a hard worker. (See, e.g., RT 2/7/14 at
48–49, 55.) Because this was a post-Ring10 case, with the jury determining Andriano’s
sentence, Patterson front-loaded the presentation of mitigating information of Andriano’s
good character along with the evidence that she was a domestic assault victim who acted
in self-defense. (Id. at 105–06.) The “good woman” defense was the most plausible
because Patterson believed there was no credible evidence that Andriano suffered from a
serious mental health issue or was sexually abused as a child. (Id. at 58–59.) Neither
MacLeod, the mitigation specialist, nor DeLozier, who bore primary responsibility for the
mitigation phase of trial, presented Patterson with negative information about the Ochoa
family. (Id. at 37.) Patterson testified, however, that he should have started the mitigation
investigation sooner and more closely supervised DeLozier and MacLeod. (Id. at 20.)
As just outlined, the PCR record clearly shows that in state court Andriano
developed and presented extensive social history evidence, including the allegations of
sexual abuse and evidence that she was raised and educated in a strict fundamentalist
church, as well as mental health evidence to support her claim that counsel performed
ineffectively at sentencing. Moreover, Andriano’s trial counsel and mitigation specialist
testified in state court.
In requesting evidentiary development in federal habeas court, Andriano now
seeks to offer additional social history documents, all of which were available at the time
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10
Ring v. Arizona, 536 U.S. 584 (2002), held that a defendant is entitled to a jury
determination of “the presence or absence of the aggravating factors required by Arizona
law for imposition of the death penalty.”
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of the PCR proceedings (Doc. 45, Ex’s 12–24), and the new expert opinions of Drs.
Winell and Barnes (see id., Ex’s 26, 27).11 The Court agrees with Respondents that
Andriano was not diligent in presenting this evidence in state court.
All the information upon which Dr. Winell based her diagnosis of Religious
Trauma Syndrome was not only available but presented during the PCR proceedings. For
example, Dr. Hopper testified in detail about his opinion that the Andrianos’ church was
an “abusive cult.” (RT 2/3/14, a.m., at 64, 68, 73–78.) Dr. Woods testified that Andriano
suffered from bipolar disorder and PTSD (RT 2/5/14 at 42, 53–79), which are the same
diagnoses reached by Dr. Barnes.
Andriano is correct that the diligence inquiry does not turn on whether the “new
evidence could possibly have been discovered.” Libberton v. Ryan, 583 F.3d 1147, 1165
(9th Cir. 2009). Nevertheless, Andriano certainly was aware of the newly-offered
information, including the details of her social history and the nature of her mental health
issues, at the time of the PCR proceedings. She now seeks to present that previouslyavailable information in the form of new diagnoses offered for the first time here.
Under these circumstances, Andriano has “failed to develop the factual basis for
[her] claim diligently.” Rhoades, 598 F.3d at 517. “[W]here a petitioner was granted an
evidentiary hearing . . . and the petitioner failed to take full advantage of that hearing,
despite being on notice of and having access to the potential evidence and having
sufficient time to prepare for the hearing, that petitioner did not exercise diligence in
developing the factual foundation of his claim in state court.” Pope v. Sec’y for Dep’t of
Corr., 680 F.3d 1271, 1289 (11th Cir. 2012); see Ward v. Hall, 592 F.3d 1144, 1160
(11th Cir. 2010) (finding petitioner failed to exercise diligence where he was granted
state court evidentiary hearing and “was afforded approximately three years to secure
affidavits and witness testimony prior to” the hearing but failed to submit relevant
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The social history documents include Andriano’s birth certificate, decree of
adoption, marriage certificate, and employment records; Joe Andriano’s hospital records;
Donna Ochoa’s divorce decree and marriage license; and records concerning Andriano’s
biological father. (Doc. 45, Ex’s 12–24.)
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evidence, despite the fact that he “managed to submit numerous exhibits and affidavits
during the course of his hearings”); Chandler v. McDonough, 471 F.3d 1360, 1362 (11th
Cir. 2006) (per curiam) (finding petitioner failed to exercise diligence in developing other
evidence of claim, where petitioner “was given an evidentiary hearing on the claim in
state court” and “also proffered in the state collateral proceeding a 195-page report in two
parts by his expert on the issue”).
In sum, Andriano had every opportunity in state court to obtain and present the
information she now offers, all of which was available during the PCR proceedings. Her
failure to take advantage of those opportunities constitutes a lack of diligence. Because
she does not meet the exceptions set out in 28 U.S.C. § 2254(e)(2), she is not entitled to
an evidentiary hearing or expansion of the record.
This lack of diligence also prevents Andriano from showing good cause for her
discovery requests. See Isaacs v. Head, 300 F.3d 1232, 1249–50 (11th Cir. 2002)
(explaining that a petitioner does not establish good cause for discovery if he was
not diligent in developing the evidence in state court). In addition, Andriano does not
articulate any basis to believe that depositions of Patterson, DeLozier, and MacLeod will
result in evidence not presented during the PCR proceedings. Murphy, 205 F.3d at 813–
14; Teti, 507 F.3d at 60.
Evidentiary development is therefore denied with respect to Claim 3A.
Claim 19B:
Andriano alleges that trial counsel performed ineffectively by failing to retain a
mental health expert to pursue a diminished-capacity defense during the guilt phase of
her trial. (Doc. 17 at 175–80.) The PCR court denied this claim, finding that counsel did
not perform ineffectively for failing to raise such a defense because under Arizona law
evidence of mental illness was not admissible to negate the mens rea element of the
murder charge.12 (ME 10/30/12 at 5.)
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In State v. Mott, 187 Ariz. 536, 931 P.2d 1046, 1051 (1997), the Arizona
Supreme Court explained that “Arizona does not allow evidence of a defendant’s mental
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Andriano seeks an evidentiary hearing and expansion of the record to include the
reports from Drs. Barnes and Winell. (Doc. 45 at 47–48 & Ex’s 26–27.) The requests are
denied.
For the reasons set out with respect to Claim 3A, Andriano is not entitled to
evidentiary development on this claim. She was not diligent in state court in developing
this evidence. In addition, Pinholster applies to bar new evidence because the PCR
court’s decision denying the claim was neither contrary to nor an unreasonable
application of clearly-established federal law under 28 U.S.C. § 2254(d). Finally, the
materials are unnecessary for the Court to resolve this record-based claim.
See Landrigan, 550 U.S. at 474; Beardslee, 358 F.3d at 585.
Claim 19F:
Andriano alleges that counsel performed ineffectively by failing to request a jury
instruction on lesser-included offenses. (Doc. 17 at 193–97.) The PCR court denied the
claim. (ME 10/20/12 at 5.)
In addition to the discovery requests previously discussed, Andriano asks to
expand the record with an email between Patterson and Donna Ochoa. (Doc. 45 at 49 &
Ex. 6.) The requests are denied. The materials are unnecessary for the Court to resolve
this record-based claim. See Landrigan, 550 U.S. at 474; Beardslee, 358 F.3d at 585.
Claim 20C:
Andriano alleges that counsel performed ineffectively in the aggravation stage of
sentencing by failing to present mental health evidence. (Doc. 17 at 204.) She seeks to
expand the record to include the declarations of Dr. Barnes and Dr. Winell. (Doc. 45 at
50–51.) The request is denied.
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disorder short of insanity either as an affirmative defense or to negate the mens
rea element of a crime.” Accordingly, a defendant cannot present evidence of mental
disease or defect to show that he lacked the capacity to form the requisite mental state for
a charged offense. Id. at 1050; see Clark v. Arizona, 548 U.S. 735 (2006) (upholding the
constitutionality of the Mott rule and finding that the exclusion of expert testimony
regarding diminished capacity does not violate due process).
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Counsel raised this claim during the PCR proceedings and the court denied it. (See
ME 11/1/14 at 12–16.) For the reasons set out with respect to Claim 3A, Andriano is not
entitled to evidentiary development on this claim. She was not diligent in state court in
developing this evidence. The factual bases for the new diagnoses were apparent during
the PCR proceedings. See Rhoades, 598 F.3d at 517 (9th Cir. 2010).
Claims 21A and 21B:
Claim 21 consists of various allegations of ineffective assistance of appellate
counsel. In Claim 21A, Andriano alleges that appellate counsel performed ineffectively
by failing to raise the conflict-of-interest claim set out in Claim 2. (Doc. 17 at 212.) In
Claim 21B, Andriano alleges that appellate counsel performed ineffectively by failing to
raise a claim that the trial court erroneously ruled on a hearsay objection. (Id. at 213.) The
PCR court rejected the claims. (ME 10/30/12 at 6.)
Evidentiary development is not warranted because the record is complete with
respect to these aspects of appellate counsel’s performance. See Landrigan, 550 U.S. at
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.” Andriano has not identified any
disputed facts relevant to his appellate ineffective assistance claims. See Beardslee, 358
F.3d at 585.
2.
Unexhausted Claims
Andriano did not raise these claims in state court. They are defaulted and, unless
the default is excused by the ineffective assistance of PCR counsel, barred from federal
review. Evidentiary development is also inappropriate for claims that can be resolved on
the existing state court record.
Claim 3B:
Andriano alleges that counsel performed ineffectively by failing to object to the
trial court’s instruction that she could receive a parole-eligible life sentence if not
sentenced to death. (Doc. 17 at 84–87.)
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Andriano seeks discovery in the form of depositions of Patterson, DeLozier,
MacLeod, and Linderman, an evidentiary hearing, and expansion of the record to include
the Patterson declaration. (Doc. 45 at 32–33.) The requests are denied. The materials are
unnecessary for the Court to resolve this record-based claim. See Landrigan, 550 U.S. at
474; Beardslee, 358 F.3d at 585.
Claim 19A:
Andriano alleges that counsel performed ineffectively by failing to retain a
qualified expert to challenge the State’s evidence that sodium azide was present in the
food samples as well as in Joe’s blood and gastric contents. (Doc. 17 at 170–75.) Because
the presence of sodium azide in Joe’s body is consistent with Andriano’s version of
events, this claim focuses on the evidence of its presence in the food. Andriano alleges
that the tests performed by the state might have failed to distinguish between sodium
azide and nitrate, a widely used food preservative. (Id. at 173.)
In addition to the discovery listed above, Andriano seeks subpoenas duces tecum
to employers and professional organizations for records relating to witness William Joe
Collier, the defense expert used at trial, and the deposition of Michael Sweedo, another
expert whom the defense retained before trial. (Doc. 45 at 45.) She also asks to expand
the record to include Dr. Betterton’s declaration (id. & Ex. 28); documents related to the
hiring of Collier (id. & Ex. 8); a transcript of DeLozier’s interview with PCR counsel (id.
& Ex. 3); an article concerning sodium azide, which DeLozier sent to Patterson (id. &
Ex. 4); and Sweedo’s report and curriculum vitae (id. & Ex. 7). Andriano also seeks an
evidentiary hearing (id. at 47).
Andriano did not raise the claim in state court. She argues that its default is
excused by the ineffective assistance of PCR counsel. (See Doc. 45 at 42–43.) Martinez
does not excuse the default because the underlying claim is without merit. Sexton, 679
F.3d at 1157.
Andriano contends that counsel performed ineffectively in retaining Collier as
their expert because he was “a general chemist and criminalist” and was not specifically
qualified to testify about sodium azide. (Doc. 17 at 172.) As a result, according to
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Andriano, Collier could not adequately rebut the State’s evidence that sodium azide was
present in the food.
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“The choice of what type of expert to use is one of trial strategy and deserves ‘a
heavy measure of deference.’” Turner v. Calderon, 281 F.3d 851, 876 (9th Cir. 2002)
(quoting Strickland v. Washington, 466 U.S. 668, 691 (1984)); see Harris v. Vasquez, 949
F.2d 1497, 1525 (9th Cir. 1990). In Turner, the Ninth Circuit rejected the claim that
counsel performed ineffectively by retaining a general psychologist and not an expert on
PCP. 281 F.3d at 876. The argument that “a more specialized expert would have been
more persuasive” was not enough to support a claim of ineffective assistance of counsel.
Id.
In addition, Andriano cannot establish that she was prejudiced by counsel’s failure
to use a different expert. Speculation that different test results could have been obtained,
showing no sodium azide in the food, is insufficient to establish prejudice. See Wildman
v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (acknowledging that conjecture that a
favorable
expert
might
have
been
found
cannot
establish
prejudice);
Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (concluding that speculation about
how an expert might have testified is not enough to establish prejudice).
There was no reasonable probability that Andriano would have avoided the firstdegree murder conviction based on challenges to the sodium azide evidence. Moreover,
for prejudice to have resulted from the evidence of sodium azide in the food, jurors would
have had to accept Andriano’s unsupported testimony that Joe intended to commit suicide
by poisoning himself and had directed Andriano’s efforts to acquire the sodium azide.13
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Andriano testified that she and a former boyfriend researched poisons that could
be used in Joe’s suicide. To purchase the sodium azide Andriano provided the seller with
a false name, a false business license, and a false shipping address. (RT 10/27/04 at 92–
98.) She also prepared and sent the money order used to pay for the sodium azide. (RT
11/2/04 at 17–18.) Andriano testified that she and Joe prepared the sodium azide for his
later consumption by emptying about 15 capsules of an herbal supplement and refilling
the capsules with the poison. (Id. at 104–09.) She placed the sodium azide capsules in the
supplement bottle and sealed the bottle, which Joe then placed in a bedroom closet where
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Because PCR counsel did not perform ineffectively in failing to raise this claim, it
remains defaulted and barred from federal review. The claim is denied.
Claim 19E:
Andriano alleges that counsel performed ineffectively by failing to request a jury
instruction limiting consideration of evidence of her extramarital affairs and attempts to
procure life insurance on her husband. (Doc. 17 at 190–93.) She seeks expansion of the
record to include attorney Clark’s declaration. (Doc. 45 at 48–49 & Ex. 25.) The request
is denied. Clark’s declaration is unnecessary for the Court to resolve this record-based
claim. See Landrigan, 550 U.S. at 474; Beardslee, 358 F.3d at 585.
Claim 20B:
Andriano alleges that counsel performed ineffectively by failing to investigate
juror misconduct; namely, the jury’s consideration of possible sentences as alleged in
Claim 11. (Doc. 17 at 201–03.) She seeks the evidentiary development requested for that
claim. (Doc. 45 at 50.)
Whether or not the default of this claim is excused by the performance of PCR
counsel, Andriano’s request for evidentiary development is denied. The information
Andriano seeks is inadmissible under federal law. Juror testimony cannot be used to
impeach a verdict unless “extrinsic influence or relationships have tainted the
deliberations.” Tanner v. United States, 483 U.S. 107, 120 (1987). Similarly,
Rule 606(b)(1) prohibits juror testimony “about any statement made or incident that
occurred during the jury’s deliberations; the effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes concerning the verdict or indictment.” Fed.
R. Evid. 606(b)(1). The Rule further states that “[t]he court may not receive a juror’s
affidavit or evidence of a juror’s statement on these matters.” Id. As relevant here, the
only exceptions are questions of whether “extraneous prejudicial information was
improperly brought to the jury’s attention” or “outside influence was improperly brought
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it remained until his suicide attempt. (Id. at 109.) After being taken into custody,
Andriano phoned a coworker and asked her to hide items related to the sodium azide
purchase that were in Andriano’s business office. (RT 11/2/04 at 58.)
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to bear upon any juror.” Fed. R. Evid. 606(b)(2). These exceptions are inapplicable to the
information Andriano seeks.
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The jurors’ alleged discussion of sentencing outcomes, including a parole-eligible
sentence, did not involve extrinsic evidence. See Raley v. Ylst, 470 F.3d 792, 803 (9th
Cir. 2006) (“The fact that Petitioner did not testify in his own defense is not extrinsic
evidence. Although the jury’s discussion of this issue clearly violated the trial court’s
instructions, what happened (or did not happen) in the courtroom was a part of the trial,
not extrinsic to it.”); Belmontes v. Brown, 414 F.3d 1094, 1124 (9th Cir. 2005), rev’d on
other grounds, Ayers v. Belmontes, 549 U.S. 7 (2006) (explaining that jurors’ discussion
of whether defendant would be paroled was an “intrinsic jury process”). The jury did not
learn information about Andriano’s possible sentences “through outside contact,
communication, or publicity,” and the information “did not enter the jury room through
an external, prohibited route.” United States v. Rodriquez, 116 F.3d 1225, 1227 (8th Cir.
1997).
Because the information was part of the trial and not extrinsic, juror testimony
about their deliberations is prohibited under Rule 606(b). The evidentiary development
requested by Andriano is denied.
Claims 21C, 21D, and 21E:
In Claim 21C, Andriano alleges that appellate counsel performed ineffectively by
failing to challenge the trial court’s instruction advising jurors that she could be eligible
for parole if not sentenced to death. (Doc. 17 at 213–14.) In Claim 21D, she alleges that
appellate counsel performed ineffectively by failing to argue that Dr. Bayless was not
qualified to testify about domestic violence. (Id. at 214.) In Claim 21E, she alleges that
appellate counsel performed ineffectively by failing to expressly argue that her mitigation
was sufficiently substantial to warrant leniency. (Id. at 215–18.)
Martinez does not apply to claims of ineffective assistance of appellate counsel.
Davila, 137 S. Ct. at 2062–63. Therefore, the claims remain defaulted and barred from
federal review.
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In addition, evidentiary development is not warranted because the record is
complete with respect to these aspects of appellate counsel’s performance. See
Landrigan, 550 U.S. at 474; Totten, 137 F.3d at 1176; Gray, 800 F.2d at 647. Andriano
has not identified any disputed facts relevant to these appellate ineffective assistance
claims. See Beardslee, 358 F.3d at 585.
IV.
For the reasons set forth above, Andriano’s requests for evidentiary development
are denied.
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Accordingly,
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CONCLUSION
IT IS ORDERED denying Andriano’s motion for evidentiary development (Doc.
45).
IT IS FURTHER ORDERED denying Claims 6, 10, 11, 15, 18, 19A, and 21C,
21D, and 21E as procedurally defaulted and barred from federal review.
IT IS FURTHER ORDERED denying Claims 4, 17, 22, 31, 35, and 36 as
meritless.
Dated this 30th day of August, 2018.
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