Speer v. Ryan et al
Filing
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ORDER denying Speer's Petition for Writ of Habeas Corpus (Doc. 13 ). The Clerk of Court shall enter judgment accordingly. IT IS FURTHER ORDERED denying Speer's request for evidentiary development. (Doc. 23 ) IT IS FURTHER ORDERED granting a certificate of appealability with respect to Claims 7, 8, and 14. IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329. Signed by Chief Judge G Murray Snow on 3/14/23. (SMF)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Paul Bradley Speer,
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Petitioner,
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v.
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Ryan Thornell, et al.,
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No. CV-16-04193-PHX-GMS
ORDER
DEATH PENALTY CASE
Respondents.1
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Petitioner Paul Bradley Speer is an Arizona death row inmate seeking federal habeas
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corpus relief. Before the Court are his habeas petition and his notice of request for
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evidentiary development. (Docs. 13, 23.) Respondents filed an answer to the petition and
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a response in opposition to the request for evidentiary development. (Docs. 16, 24.) The
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petition and the request for evidentiary development are denied for the reasons set forth
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below.
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I.
BACKGROUND
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In 2007 a Maricopa County jury convicted Speer of first-degree murder and other
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offenses and he was sentenced to death. The Arizona Supreme Court, in its opinion
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affirming the convictions and sentences, described the facts surrounding the crimes. State
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v. Speer, 221 Ariz. 449, 452–54, 212 P.3d 787, 790–92 (2009). These facts are “presumed
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correct.” Atwood v. Ryan, 870 F.3d 1033, 1039 (9th Cir. 2017) (citing 28 U.S.C. §
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Under Federal Rule of Civil Procedure 25(d), Ryan Thornell, the Director of the Arizona
Department of Corrections, Rehabilitation & Reentry, is substituted for the former
Director, David Shinn.
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2254(e)(1)).
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On March 14, 2002, Speer and his half-brother Chris Womble burglarized a Phoenix
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apartment. The apartment’s residents, Adan and Enriqueta Soto and their three children,
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were not at home but a neighbor saw two men trying to open an apartment window and
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called the police. Other witnesses directed police to the apartment of Sabrina and Bill
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Womble, Speer’s mother and stepfather, where Speer and Chris were found and arrested.
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Officers searched the apartment and found items belonging to the Sotos.
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Speer was held at the Madison Street Jail. He made telephone calls to family and
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friends, including his half-brother Brian Womble and an older man named Al Heitzman,
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with whom Brian lived. The calls were recorded pursuant to the policy of the Maricopa
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County Sheriff’s Office (“MCSO”).
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Speer spoke repeatedly with Heitzman and Brian Womble about posting Speer’s
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bond. Speer stressed that he needed to be released so that he could talk with the victims
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and convince them not to testify.
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The necessary funds were not forthcoming, however, and Speer and Brian
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eventually moved on to “Plan B.” Speer told Brian to “make sure you take care of
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everybody in that house . . . there’s only like two.” In subsequent calls Speer reiterated that
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Brian could do the job alone as there were only “two people in there,” that “everything in
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there has to go,” and that Brian should “make sure you talk to both people.”
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On May 17, Brian proposed that he break into the apartment and wait for the Sotos
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to come home. Speer suggested instead that Brian pose as a police officer who needed to
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take photos for the upcoming trial. Brian said that he had staked out the apartment complex.
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Speer said, “Handle business fool, alright?”
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On May 19, Speer called Brian again. This time they discussed a “surprise birthday
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party.” Speer said it would be a waste of a party if Brian did not get both people. Brian told
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Speer that he now had a silencer for his gun.
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On May 24, Speer spoke to Brian, urging him to carry out their plan that night. He
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asked Brian: “Is it pretty sure you’re going to . . . you’ll be able to get it running tonight?”
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Speer also told him to make sure to throw away the evidence. Speer again asked: “I don’t
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have nothing to worry about, about you getting the car together, right?”
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On May 25, 2002, at 3:00 a.m., the Sotos returned home from a party. At
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approximately 5:00 a.m., Enriqueta Soto called 911. When EMTs arrived, they found her
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on the living room couch. She had been shot but she survived her wounds. An EMT found
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Adan lying in bed with his arm around an infant. Adan was dead from a gunshot wound
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but the infant was unharmed.
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When police arrived, they found the screen for the front window to the apartment
removed. Brian Womble’s palm prints were identified on the screen.
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On the day after the murder, Speer called Brian and asked him if he got “the car
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running” and fixed “both parts.” Brian said, “Yep, perfect.” Speer then told Brian that he
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needed to “get rid of those [engine parts].”
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On June 10, Speer called Brian, who told him one of the Sotos was still alive. Speer
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said he was not worried. On June 19, Speer sent a letter to Brian reminding him to get rid
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of the “engine parts” and his shoes. When police later searched Brian’s bedroom, they
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found the letter and a book about silencers.
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A grand jury indicted Speer on six felonies, including first-degree murder, in
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connection with the events of May 25. The State filed a notice of intent to seek the death
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penalty, alleging four aggravating factors: that Speer was previously convicted of a serious
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offense (armed robbery), A.R.S. § 13–751(F)(2); that he knowingly created a grave risk of
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death to the Soto’s infant, A.R.S. § 13–751(F)(3); that the murder was committed in a
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heinous or depraved manner (witness elimination), A.R.S. § 13–751(F)(6); and that Speer
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committed the murder while in custody, A.R.S. § 13–751(F)(7).
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In January 2007, the jury returned guilty verdicts on the six counts related to the
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May 25 shooting, as well as two counts related to the March 14 burglary. The jury then
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found that all four aggravating factors had been proved beyond a reasonable doubt and
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determined that Speer should be sentenced to death for Adan Soto’s murder.
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The Arizona Supreme Court affirmed. Speer, 221 Ariz. 449, 212 P.3d 787. After
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unsuccessfully pursuing post-conviction relief (“PCR”) in state court,2 Speer sought habeas
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relief in this Court, filing his petition on October 6, 2017. (Doc. 13.) He filed a notice of a
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request for evidentiary development on August 2, 2018. (Doc. 23.)
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Speer was represented at trial and sentencing by Roberts Storrs, Bruce Blumberg,
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and Pamela Nicholson. The prosecutor was Jeanette Gallagher. Maricopa County Superior
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Court Judge Andrew Klein presided over Speer’s trial and subsequent PCR proceedings.
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II.
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APPLICABLE LAW
A.
Exhaustion & Procedural Default
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A writ of habeas corpus cannot be granted unless the petitioner has exhausted all
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available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501
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U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). To exhaust state remedies, the
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petitioner must “fairly present” his claims to the state’s highest court in a procedurally
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appropriate manner. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).
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A claim is “fairly presented” if the petitioner has described the operative facts and
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the federal legal theory on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6
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(1982). A petitioner must clearly alert the state court that he is alleging a specific federal
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constitutional violation. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004); see also
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Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).
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In Arizona there are two avenues for petitioners to exhaust federal constitutional
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claims: direct appeal and post-conviction proceedings. Rule 32 of the Arizona Rules of
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Criminal Procedure governs PCR proceedings. It provides that a petitioner is precluded
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from relief on any claim that could have been raised on appeal or in a prior PCR petition.
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Ariz. R. Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a) may be avoided only if
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a claim falls within certain exceptions and the petitioner can justify why the claim was
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The PCR court denied Speer’s petition and the Arizona Supreme Court denied his
petition for review without comment. When the state’s highest court denies a claim
summarily, the federal court looks through to the last reasoned decision. Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991).
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omitted from a prior petition or not presented in a timely manner. See Ariz. R. Crim. P.
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32.1(b)–(h), 32.2(b), 32.4(a).
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A habeas petitioner’s claims may be precluded from federal review in two ways.
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First, a claim may be procedurally defaulted in federal court if it was actually raised in state
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court but found by that court to be defaulted on state procedural grounds. Coleman, 501
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U.S. at 729–30. Second, a claim may be procedurally defaulted if the petitioner failed to
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present it in state court and “the court to which the petitioner would be required to present
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his claims in order to meet the exhaustion requirement would now find the claims
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procedurally barred.” Id. at 735 n. 1. If no remedies are currently available pursuant to Rule
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32, the claim is “technically” exhausted but procedurally defaulted. Coleman, 501 U.S. at
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732, 735 n. 1; see also Gray v. Netherland, 518 U.S. 152, 161–62 (1996).
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B.
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Federal habeas claims are analyzed under the framework of the Antiterrorism and
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Effective Death Penalty Act of 1996 (“AEDPA”).3 Pursuant to AEDPA, a petitioner is not
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entitled to habeas relief on any claim adjudicated on the merits in state court unless the
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state court’s ruling (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
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presented in state court. 28 U.S.C. § 2254(d).
AEDPA & Martinez
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A state court decision is “contrary to” clearly established federal law under §
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2254(d)(1) if the decision applies a rule that contradicts the governing law set forth in
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Supreme Court precedent, thereby reaching a conclusion opposite to that reached by the
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Supreme Court on a matter of law, or if it confronts a set of facts that is materially
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indistinguishable from a decision of the Supreme Court but reaches a different result.
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Speer’s challenge to the constitutionality of AEDPA (Doc. 13 at 54) is
meritless. See Crater v. Galaza, 491 F.3d 1119, 1125–26 (9th Cir. 2007) (holding that
AEDPA violates neither the Suspension Clause nor the separation of powers doctrine).
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Williams (Terry) v. Taylor, 529 U.S. 362, 405–06 (2000); see, e.g., Hooper v. Shinn, 985
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F.3d 594, 614 (9th Cir. 2021). Under the “unreasonable application” prong of § 2254(d)(1),
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a federal habeas court may grant relief where a state court “identifies the correct governing
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legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the
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particular . . . case” or “unreasonably extends a legal principle from [Supreme Court]
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precedent to a new context where it should not apply or unreasonably refuses to extend that
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principle to a new context where it should apply.” Id. at 407; see, e.g., Murray (Robert) v.
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Schriro, 745 F.3d 984, 997 (9th Cir. 2014).
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The Supreme Court has emphasized that “an unreasonable application of federal
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law is different from an incorrect application of federal law.” Id. For a state court’s decision
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to be an unreasonable application of clearly-established federal law, “the ruling must be
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‘objectively unreasonable, not merely wrong; even clear error will not suffice.’” Virginia
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v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (quoting Woods v. Donald, 575 U.S. 312, 316
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(2015) (per curiam)); see Shinn v. Kayer, 141 S. Ct. 517, 523 (2020); Bolin v. Davis, 13
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F.4th 797, 805 (9th Cir. 2021). The burden is on the petitioner to show “there was no
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reasonable basis for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98
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(2011). This standard is meant to be “difficult to meet.” Kayer, 141 S. Ct. at 523 (quoting
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Richter, 562 U.S. at 102).
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Under § 2254(d)(2), habeas relief is available if the state court decision was based
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upon an unreasonable determination of the facts. See Miller-El v. Dretke (Miller-El II), 545
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U.S. 231, 240 (2005). “[A] decision adjudicated on the merits in a state court and based on
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a factual determination will not be overturned on factual grounds unless objectively
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unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El
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v. Cockrell (Miller-El I), 537 U.S. 322, 340 (2003). A state court’s factual determination
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is presumed correct and a petitioner bears the burden of overcoming that presumption with
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clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see Miller-El I, 537 U.S. at 340. A
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“factual determination is not unreasonable merely because [a] federal habeas court would
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have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301
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(2010); see Brumfield v. Cain, 576 U.S. 305, 314 (2015) (explaining that § 2254(d)(2)
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requires federal courts to “accord the state trial court substantial deference”); Walden v.
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Shinn, 990 F.3d 1183, 1196 (9th Cir. 2021), cert. denied, 142 S. Ct. 791 (2022); Ayala v.
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Chappell, 829 F.3d 1081, 1094 (9th Cir. 2016) (“A state court’s factual findings are
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unreasonable if ‘reasonable minds reviewing the record’ could not agree with
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them.”) (quoting Brumfield, 576 U.S. at 314).
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“[R]eview under § 2254(d)(1) is limited to the record that was before the state court
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that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
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(holding that “the record under review is limited to the record in existence at that same
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time, i.e. the record before the state court”); see Murray (Robert), 745 F.3d at 998 (“Along
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with the significant deference AEDPA requires us to afford state courts’ decisions, AEDPA
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also restricts the scope of the evidence that we can rely on in the normal course of
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discharging our responsibilities under § 2254(d)(1).”). The Ninth Circuit has observed that
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“Pinholster and the statutory text make clear that this evidentiary limitation is applicable
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to § 2254(d)(2) claims as well.” Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (2013) (citing
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§ 2254(d)(2) and Pinholster, 563 U.S. at 185 n.7). Therefore, as the court explained in
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Gulbrandson:
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for claims that were adjudicated on the merits in state court, petitioners can
rely only on the record before the state court in order to satisfy the
requirements of § 2254(d). This effectively precludes federal evidentiary
hearings for such claims because the evidence adduced during habeas
proceedings in federal court could not be considered in evaluating whether
the claim meets the requirements of § 2254(d).
Id. at 993–94.
For claims not adjudicated on the merits in state court, “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 specifically held that ineffective assistance of counsel in PCR proceedings cannot
establish cause for a claim’s procedural default. Id.
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In Martinez v. Ryan, 566 U.S. 1 (2012), however, the Supreme Court created a
“narrow exception” to that rule. The Court explained that:
Where, under state law, claims of ineffective assistance of trial counsel must
be raised in an initial-review collateral proceeding, a procedural default will
not bar a federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.
Id. at 17; see also Shinn v. Ramirez, 142 S. Ct. 1718, 1733 (2022).
Accordingly, under Martinez an Arizona habeas petitioner may establish cause and
prejudice for the procedural default of a claim of ineffective assistance of trial counsel by
demonstrating that (1) PCR counsel was ineffective and (2) the underlying ineffective
assistance claim has some merit. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (citing
Martinez, 566 U.S. at 14); Atwood, 870 F.3d at 1059–60.
To establish “cause” under Martinez, a petitioner must demonstrate that PCR
counsel was ineffective according to the standard set out in Strickland v. Washington, 466
U.S. 668 (1984). Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other
grounds by McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir. 2015). Strickland requires a
demonstration “that both (a) post-conviction counsel’s performance was deficient, and (b)
there was a reasonable probability that, absent the deficient performance, the result of the
post-conviction proceedings would have been different.” Clabourne, 745 F.3d at 377
(citation omitted).
To establish “prejudice” under the second prong of Martinez’s “cause and
prejudice” analysis, a petitioner must demonstrate that his underlying ineffective assistance
of trial counsel claim is “substantial.” Id. In Martinez the Supreme Court defined a
“substantial” claim as a claim that “has some merit.” 566 U.S. at 14. The Court stated that
the standard for finding a claim “substantial” is analogous to the standard for issuing a
certificate of appealability. Id. at 14; see Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir.
2013) (en banc). Under that standard, a claim is “substantial” if “reasonable jurists could
debate whether the issue should have been resolved in a different manner or that the claim
was adequate to deserve encouragement.” Id. (citing Miller-El I, 537 U.S. at 336).
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A finding of “prejudice” for purposes of the “cause and prejudice” analysis, “does
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not diminish the requirement . . . that petitioner satisfy the ‘prejudice’ prong under
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Strickland in establishing ineffective assistance by post-conviction counsel.” Clabourne,
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745 F.3d at 377.
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The Ninth Circuit has offered guidance in assessing whether “cause” exists under
Martinez. In Atwood, for example, the court explained:
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In evaluating whether the failure to raise a substantial claim of ineffective
assistance of trial counsel in state court resulted from ineffective assistance
of state habeas counsel under Strickland, we must evaluate the strength of
the prisoner’s underlying ineffective assistance of trial counsel claim. If the
ineffective assistance of trial counsel claim lacks merit, then the state habeas
counsel would not have been deficient for failing to raise it. Further, any
deficient performance by state habeas counsel would not have been
prejudicial, because there would not be a reasonable probability that the
result of the post-conviction proceedings would have been different if the
meritless claim had been raised.
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870 F.3d at 1059–60; see Hooper v. Shinn, 985 F.3d 594, 627 (9th Cir. 2021); Murray
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(Roger) v. Schriro, 882 F.3d 778, 816 (9th Cir. 2018); Runningeagle v. Ryan, 825 F.3d
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970, 982 (9th Cir. 2016) (“[T]o find a reasonable probability that PCR counsel prejudiced
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a petitioner by failing to raise a trial-level IAC claim, we must also find a reasonable
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probability that the trial-level IAC claim would have succeeded had it been raised.”).
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The Martinez exception to procedural default applies only to claims of ineffective
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assistance of trial counsel. It has not been expanded to other types of claims. Martinez
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(Ernesto) v. Ryan, 926 F.3d 1215, 1225 (9th Cir. 2019) (“[I]neffective assistance of PCR
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counsel can constitute cause only to overcome procedurally defaulted claims of ineffective
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assistance of trial counsel.”); Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015)
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(explaining that the Ninth Circuit has “not allowed petitioners to substantially expand the
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scope of Martinez beyond the circumstances present in Martinez”); Hunton v. Sinclair, 732
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F.3d 1124, 1126–27 (9th Cir. 2013) (noting that only the Supreme Court can expand the
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application of Martinez to other areas); see Davila v. Davis, 137 S. Ct. 2058, 2062–63,
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2065–66 (2017) (holding that the Martinez exception does not apply to claims of
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ineffective assistance of appellate counsel).
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Finally, as discussed in more detail below, with respect to claims that were not
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adjudicated on the merits, “a federal court may not hold an evidentiary hearing—or
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otherwise consider new evidence,” unless the “stringent requirements” of 28 USC §
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2254(e)(2) are met. Ramirez, 142 S. Ct. at 1739.
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C.
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Claims of ineffective assistance of counsel are governed by the principles set out in
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Strickland. “The benchmark for judging any claim of ineffectiveness must be whether
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counsel’s conduct so undermined the proper functioning of the adversarial process that the
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trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. To
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prevail under Strickland, a petitioner must show that counsel’s representation fell below an
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objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at
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687–88. Unless both showings are made, “it cannot be said that a conviction or death
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sentence resulted from a breakdown in the adversary process that renders the result
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unreliable.” Id. at 687.
Ineffective Assistance of Counsel
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The inquiry under Strickland is highly deferential. Id. at 689. “A fair assessment of
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attorney performance requires that every effort be made to eliminate the distorting effects
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of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
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evaluate the conduct from counsel’s perspective at the time.” Id. The “standard is
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necessarily a general one,” Bobby v. Van Hook, 558 U.S. 4, 7 (2009), because “[n]o
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particular set of detailed rules for counsel’s conduct can satisfactorily take account of the
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variety of circumstances faced by defense counsel or the range of legitimate decisions
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regarding how best to represent a criminal defendant,” Strickland, 466 U.S. at 688–89.
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Deficient performance, Strickland’s first prong, is established by “showing that
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counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
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the defendant by the Sixth Amendment.” Id. at 687. To make this showing, a petitioner
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must overcome “the presumption that, under the circumstances, the challenged action
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might be considered sound trial strategy.” Id. at 689 (quotation omitted).
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“The question is whether an attorney’s representation amounted to incompetence
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under ‘prevailing professional norms,’ not whether it deviated from best practices or most
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common custom.” Richter, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690). “The
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defendant bears the heavy burden of proving that counsel’s assistance was neither
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reasonable nor the result of sound trial strategy.” Murtishaw v. Woodford, 255 F.3d 926,
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939 (9th Cir. 2001) (citing Strickland, 466 U.S. at 689). “[T]he relevant inquiry . . . is not
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what defense counsel could have pursued, but rather whether the choices made by defense
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counsel were reasonable.” Murray (Robert), 745 F.3d at 1011 (quoting Babbitt v. Calderon,
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151 F.3d 1170, 1173 (9th Cir. 1998)).
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With respect to Strickland’s second prong, a petitioner must affirmatively prove
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prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different. A reasonable
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probability is a probability sufficient to undermine confidence in the outcome.” Strickland,
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466 U.S. at 694. “The likelihood of a different result must be substantial, not just
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conceivable.” Richter, 562 U.S. at 112 (citing Strickland, 466 U.S. at 693); see Hooper,
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985 F.3d at 628. The petitioner “bears the highly demanding and heavy burden [of]
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establishing actual prejudice.” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005)
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(quoting Williams (Terry), 529 U.S. at 394).
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Under AEDPA claims of ineffective assistance of counsel are subject to two layers
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of deference. “Surmounting Strickland’s high bar is never an easy task,” Padilla v.
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Kentucky, 559 U.S. 356, 371 (2010), and “[e]stablishing that a state court’s application of
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Strickland was unreasonable under § 2254(d) is all the more difficult,” Richter, 562 U.S.
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at 105; see Burt v. Titlow, 571 U.S. 12, 15 (2013) (explaining that under AEDPA, the
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reviewing court “gives both the state court and the defense attorney the benefit of the
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doubt”). “When § 2254(d) applies, the question is not whether counsel’s actions were
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reasonable. The question is whether there is any reasonable argument that counsel satisfied
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Strickland’s deferential standard.” Richter, 562 U.S. at 105. Therefore, the “only question
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that matters” under § 2254(d) is whether the state court’s decision was “so obviously wrong
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as to be ‘beyond any possibility for fairminded disagreement.’” Kayer, 141 S. Ct. at 526
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(quoting Richter, 562 U.S. at 102, 103).
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III.
ANALYSIS
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Speer’s petition contains 29 claims, some of which are unexhausted and many of
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which contain several subclaims. (Doc. 13.) He seeks evidentiary development with respect
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to 17 of those claims, including all of his ineffective assistance of counsel claims. (Doc.
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23.) The Court will first consider the procedural status of the claims and, where necessary,
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their merits. The Court will then turn to Speer’s requests for evidentiary development.
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A.
Claims Related to Jailhouse Phone Calls
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Speer raises several claims relating to his jailhouse phone calls, including challenges
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to the trial court’s rulings and the State’s handling of the evidence (Claims 8, 9, and 13)
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and allegations of ineffective assistance of counsel (Claims 1–4). These claims are
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meritless.
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Additional background
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As noted above, the Madison Street Jail kept recordings of phone calls made by
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inmates. Speer, 221 Ariz. at 456, 212 P.3d at 794. After being stored for six months, the
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tapes were reused and the old data recorded over. Id. A database was kept with information
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about the calls, from which specific recordings could be located. Id. Law enforcement or
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an inmate could request that a cassette be “tagged,” in which case the recording was not
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taped over. Id.
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In June 2002, following a tip from a jailhouse informant, police subpoenaed
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recordings of phone calls made by Speer to the home of Al Heitzman, with whom Brian
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Womble was staying. Id. Speer made many of the calls using a different inmate’s booking
26
number, blowing into the phone to defeat the voice-recognition system. (See RT 5/19/06
27
28
- 12 -
1
at 42.)4 He also made numerous three-party calls, in violation of jail regulations. (See RT
2
12/12/06 at 166–67.)
3
The State identified a total of 58 calls dating from the relevant period.5 (See ME
4
5/20/15 at 4 n.1; PCR Pet. 10/25/14, Ex. 3.) Detectives listened to 36 of these recordings,
5
preserving 27 as containing relevant information about the murder. Those tapes were
6
played at trial. The remaining tapes were either reviewed but not preserved (9 tapes) or
7
neither reviewed nor preserved (22 tapes).
8
On July 23, 2002, Brian Womble’s attorney filed a discovery motion, requesting
9
“[a]ll statements of the defendant and anyone who will be tried with defendant.”6 Speer,
10
221 Ariz. at 456, 212 P.3d at 794. In response, the State produced the 27 recordings. Id.
11
“When the request was made, Speer’s attorney knew that MCSO policy was to reuse
12
cassettes after six months.” Id. The remaining 31 tapes were destroyed pursuant to MCSO
13
policy.
14
On April 29, 2005, Speer moved to suppress the 27 calls, arguing that the State acted
15
in bad faith by preserving only calls unfavorable to Speer. (EIR 248.)7 The trial court held
16
an evidentiary hearing on the matter. (RT 5/19/06 at 71; RT 7/28/06 at 50.) The case agent,
17
Detective Dennis Olson, testified that he preserved every phone call that contained any
18
discussion about the homicide.8 (Id.; see RT 7/28/06 at 50.) He acknowledged that he was
19
legally required to preserve calls containing any information about the murder whether “it
20
helps the defense or helps the prosecution.” (Id. at 70.) He testified that the supplement
21
22
23
24
25
26
27
28
“RT refers to the reporter’s transcripts from Speer’s state court proceedings. “ME”
refers to the trial court’s Minute Entries.
5
The rulings of the trial court and the Arizona Supreme Court took into account a
total of only 36 tapes. The additional 22 tapes were identified during the PCR proceedings.
6
Speer and Brian Womble were both charged with the murder. Their trials were
later severed. (See ME 3/28/06.) Speer did not join Womble’s motion.
7
“EIR” refers to the document number in the Electronic Index of Record in
Maricopa County Case # CR2002-01096.
8
Olson and two other detectives, including Detective Steve Ulrich, who served as
the case agent until he retired and was replaced by Olson, listened to recordings over the
period of a day and a half.
4
- 13 -
1
provided to the defense listed the calls he reviewed, including the nine calls he listened to
2
but did not preserve. (Id. at 76.) Finally, Det. Olson testified that there were a number of
3
calls the detectives neither listened to nor preserved, and that not every call was listed in
4
the supplement. (Id. at 76–77.)
5
The court denied the suppression motion, finding that Speer did not show the
6
detectives acted in bad faith by failing to preserve the tapes or that the tapes contained
7
exculpatory or relevant information. (ME 7/28/06 at 2.) The ruling referred to the 9 tapes
8
that were listened to but not preserved; it did not address the additional 22 calls that were
9
destroyed without being reviewed. Speer subsequently moved for a Willits instruction,
10
which the trial court also denied.9 (ME 1/16/07.)
11
Claims 1, 2, 3, and 8:
12
In Claim 8, Speer alleges that his due process rights were violated by the trial court’s
13
failure to suppress the 27 recorded jail phone calls that the State used at trial. (Doc. 13 at
14
96.) In Claim 1, he alleges that counsel performed ineffectively in litigating their motion
15
to suppress the calls. (Id. at 56.) In Claim 2, he alleges that counsel performed ineffectively
16
by allowing the 31 recorded phone calls to be destroyed. (Id. at 64.) In Claim 3, he alleges
17
that counsel performed ineffectively in litigating the Rule 15 discovery issue.10 (Id. at 69.)
18
Claim 8
19
Speer raised Claim 8 on direct appeal. (Opening Br. at 14.)11 The Arizona Supreme
20
Court denied the claim, agreeing with the trial court that “Speer did not establish that the
21
destroyed tapes contained material exculpatory evidence or that the police acted in bad
22
faith.” Speer, 221 Ariz. at 457, 212 P.3d at 795. The court noted that “because the nine
23
calls at issue occurred after the first preserved call, and incriminating calls continued up to
24
25
26
27
28
9
State v. Willits, 96 Ariz. 184, 186, 393 P.2d 274, 276 (1964), provides that if the
State loses or destroys material evidence, the jury may infer that the evidence was
exculpatory.
10
Arizona Rule of Criminal Procedure 15.1 governs the State’s disclosure
obligations. As relevant here, Rule 15.1(b)(2) requires the State to disclose “any statement
of the defendant” that is “within the State’s possession or control.”
11
See Doc. 16, Ex. A.
- 14 -
1
and after the murder, there is no logical inference that these nine had a tendency to
2
exonerate.” Id. Although the court acknowledged that the detectives “did not listen to every
3
call,” meaning the court was aware that more than 36 calls had been tagged, its ruling, like
4
the trial court’s, discussed only the calls to which the detectives actually listened. See id.
5
at 456–57, 212 P.3d at 794–95.
6
Speer raised this claim again during his PCR proceedings, this time referencing the
7
22 tapes that were never reviewed. (PCR Pet. at 5–19.) The court found the claim precluded
8
under Rules 32.6(c) and 32.2(a)(2) because it had been raised and denied on direct appeal.
9
(ME 5/20/15 at 5.) The court alternatively found that the claim was meritless even taking
10
into account the additional 22 recordings that were destroyed without being reviewed. (Id.
11
at 2–3.) The court found that Speer could not “establish, beyond mere speculation and
12
conjecture, that the destroyed jail recordings contained material exculpatory evidence, or
13
even evidence that would be in some way beneficial . . . as mitigation.” (Id. at 4.) Instead,
14
the court concluded:
15
20
[G]iven Defendant’s efforts to conceal his identity as the one making calls,
concealing the recipient by placing a call and then asking the recipient to add
others to the calls, the timing of the calls in relation to Defendant’s
incarceration, anticipated court appearances on pending charges, the
proposed “discussions” with the victims, the murders, and the post-murder
conversations and activities, the Court believes those calls, if disclosed,
would have been more incriminating than having any tendency to exonerate
Defendant or provide mitigation.
21
(Id. at 5.) The court also found no bad faith in the State’s failure to preserve the tapes and
22
therefore no due process violation. (Id.)
16
17
18
19
23
The parties both treat the PCR court’s alternative merits ruling as the relevant state
24
court decision. Speer argues that the decision was contrary to or an unreasonable
25
application of clearly established federal law and based on an unreasonable determination
26
of the facts. (Doc. 13 at 100–105.) This argument fails.
27
In California v. Trombetta, the Supreme Court reiterated that “[a] defendant has a
28
constitutionally protected privilege to request and obtain from the prosecution evidence
- 15 -
1
that is either material to the guilt of the defendant or relevant to the punishment to be
2
imposed.” 467 U.S. 479, 485 (1984) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)).
3
The Court explained that the government’s constitutional duty to preserve evidence is
4
“limited to evidence that might be expected to play a significant role in the suspect’s
5
defense.” Id. at 488. To meet this standard of materiality, the evidence “must both possess
6
an exculpatory value that was apparent before the evidence was destroyed, and be of such
7
a nature that the defendant would be unable to obtain comparable evidence by other
8
reasonably available means.” Id. at 489.
9
If the evidence is not material and exculpatory, however, but instead only
10
“potentially useful,” a different legal standard applies. Arizona v. Youngblood, 488 U.S.
11
51, 57 (1988). While under Brady due process is violated by the failure to disclose material
12
exculpatory evidence, regardless of the State’s good or bad faith, id., the failure to preserve
13
evidence that is only “potentially useful” does not violate due process “unless a criminal
14
defendant can show bad faith on the part of the police.” Id. at 58; see Illinois v. Fisher, 540
15
U.S. 544, 547–48 (2004).
16
Bad faith can be demonstrated where there is evidence in the record of “official
17
animus towards [a defendant] or of a conscious effort to suppress exculpatory evidence.”
18
Trombetta, 467 U.S. at 488. The presence or absence of bad faith turns on the government’s
19
knowledge of the apparent exculpatory value of the evidence at the time it was lost or
20
destroyed. Youngblood, 488 U.S. at 56 n.*; see Sanders v. Cullen, 873 F.3d 778, 811 (9th
21
Cir. 2017); United States v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993). Bad faith arises
22
only in “that class of cases where the interests of justice most clearly require it, i.e., those
23
cases in which the police themselves by their conduct indicate that the evidence could form
24
a basis for exonerating the defendant.” Youngblood, 488 U.S. at 58. The burden of showing
25
bad faith rests with the defendant. Id.
26
To support his argument that the tapes were potentially exculpatory and therefore
27
destroyed in bad faith, Speer contends that 96% (26 out of 27) of the admitted tapes
28
contained mitigating evidence. (Doc. 13 at 100.) He next asserts that 75% of the total
- 16 -
1
number of calls Det. Olson listened to contained mitigating evidence and therefore Olson
2
“reasonably knew that at least 75% of the 22 calls he intended but failed to listen to
3
contained mitigating evidence.”12 (Id. at 103.) This data, according to Speer, proves that
4
the destroyed tapes had exculpatory value, which the detectives were aware of, and
5
therefore the destruction of the tapes was carried out in bad faith. (Id.) Speer also argues
6
that among the 22 calls the detectives did not listen to are two calls recorded by Heitzman.
7
According to Speer, these calls also contain mitigating information, supporting his
8
argument that the remaining unreviewed calls are also likely to contain exculpatory
9
material. Finally, Speer alleges that in allowing the destruction of the 22 unreviewed tapes,
10
“the police did not act in accordance with their normal practices,” apparently referring to
11
the fact that the police, having “tagged” the calls, failed to preserve them past the standard
12
six-month period. (Id. at 102.)
13
The PCR court specifically rejected these arguments. It found that “[m]erely
14
suggesting a statistical probability that there might have been mitigation on the destroyed
15
calls based on sampling the 27 calls the police preserved is speculative and not sufficient
16
to establish material exculpatory evidence or mitigation evidence.” (ME 5/20/15 at 7.) This
17
was a reasonable determination.
18
Speer’s argument relies both on the characterization of certain evidence in the
19
reviewed tapes as being so mitigating that the police would be in bad faith for failing to
20
review further tapes on the possibility that they might contain additional mitigating
21
evidence of the same quality, and second, on the presumption that the contents of the 22
22
calls that were destroyed without being reviewed would mirror similar content as the 36
23
calls that were reviewed.
24
This, however, is far from sufficiently established. According to Speer, the
25
mitigating evidence in the preserved calls includes Speer “encourag[ing] Womble to just
26
talk to the victims and offer them money or a gun to not come to court”; the fact that “Speer
27
12
28
The math behind the 75% figure is not readily apparent (26 out of 36 tapes is
72%).
- 17 -
1
committed property crimes to help his family—such as to pay for Womble’s college
2
courses and [his half-sister] Delilah’s clothes”13; and Speer expressing love for his family
3
members. (Doc. 13 at 62.) To the extent this is what Speer is counting as “mitigating
4
evidence,” it is unclear how its existence is so mitigating that Det. Olson can be accused
5
of bad faith for failing to review further videotapes on the possibility that they might
6
contain similar content. The fact that Speer advocated witness tampering, albeit short of
7
the murder plot that soon became “Plan B,” and admitted to other crimes is not mitigating
8
evidence, at least not to the degree that Det. Olson acted in bad faith by failing to flag it as
9
such. Assuming the unreviewed tapes included similar information, the destroyed evidence
10
did not have an exculpatory value with which the detectives can be charged.
11
Second, Speer’s speculative assertion that a certain percentage of the unreviewed
12
tapes would have contained mitigating evidence does not take into account that some or all
13
of those same tapes may have contained inculpatory evidence to the same extent that the
14
reviewed tapes actually did. Thus, from both the standpoint of the police’s bad faith, and
15
of any prejudice to Speer which it is his burden to show, it is unclear how any such
16
speculation could result in any sort of assurance that such tapes would have been more or
17
less inculpatory to Speer in terms of affecting his final verdict, let alone establishing any
18
bad faith by Det. Olson.
19
Speer has not met his burden of showing the police acted in bad faith. Youngblood,
20
488 U.S. at 58; see United States v. Olivares, 843 F.3d 752, 758–59 (8th Cir. 2016) (finding
21
that defendant failed to show bad faith in government’s failure to record and preserve all
22
13
23
24
25
26
27
28
This refers to a conversation with Brian Womble in which Speer complained,
referring to Al Heitzman:
All that shit I worked for, dude. . . . All that motherfucking shit I did with
that fag, bro, that I fucking did, dude, was so that you can fucking show that
my family could sit proper, dude. . . . So that. . . . when I was in jail, fucking
D could get clothes, you got fucking kung fu paid, I got fucking all the
money, TV, all that shit in jail last time. And now this fag’s acting like
fucking. . . . Hey dude, he’s a scary fucking bitch, dude.
(See EIR 327, tape dated 4/29/02 at 11.)
- 18 -
1
jail phone calls with co-defendants while relying on incriminating calls at trial). The
2
destruction of the tapes was not a product of bad faith. See United States v. Guerrero-
3
Hidrogo, 710 F.App’x. 774, 775 (9th Cir. 2018) (explaining that “the government’s routine
4
overwrite of the [surveillance video] every sixty days was not a product of ‘official animus’
5
or of a ‘conscious effort to suppress exculpatory evidence’”) (quoting Trombetta, 467 U.S.
6
at 488).
7
Accordingly, Claim 8 is denied.
8
Claims 1, 2, and 3
9
Speer alleges that counsel performed ineffectively in litigating their motion to
10
suppress the calls (Claim 1) and by allowing the 31 recorded phone calls to be destroyed
11
(Claim 2). (Doc. 13 at 56, 64.) He also alleges that counsel performed ineffectively in
12
pursuing discovery of the recorded calls (Claim 3). (Id. at 69.) He raised these claims in
13
his PCR petition and the court denied them. (PCR Pet. 10/25/14 at 20–25; ME 5/20/15 at
14
6–8.)
15
In Claim 1, Speer argues that counsel should have cited Kyles v. Whitney, 514 U.S.
16
419, 437 (1995), which held that a prosecutor has a “duty to learn of any favorable evidence
17
known to others acting on the government’s behalf . . . , including the police.” (Doc. 13 at
18
61.) The PCR court disagreed, explaining “the holding in Kyles does not support
19
Defendant’s argument. Kyles imposes on prosecutors a duty to disclose known, favorable
20
evidence rising to a material level of importance. Here, unlike Kyles, the Defendant cannot
21
show the exculpatory nature and materiality of the evidence that was destroyed.” (ME
22
5/20/15 at 6–7.) The court continued:
23
24
25
26
27
28
Merely suggesting a statistical probability that there might have been
mitigation on the destroyed calls based on sampling the 27 calls the police
preserved is speculative and not sufficient to establish material exculpatory
evidence or mitigation evidence.
The jury listened to 27 tapes during which Defendant reminded others that
the calls were being recorded, that he needed bail posted, that his codefendant Womble should talk to the two burglary victims, that Womble
should get his gun and steal a diamond ring from a b** in Scottsdale, that he
- 19 -
1
2
3
4
5
6
loved his brother, and that he loved his family. Given the content of the calls
preserved, the tenor of the calls during which Defendant pressured Womble
to secure his release or “it’s on you,” the timing of the calls introduced
compared to those that were destroyed, and the fact that Defendant attempted
to conceal the calls and admonished parties to the calls “don’t say nothing
crazy on this phone,” suggests that he, too, believed the calls to be potentially
incriminating. The Court finds that trial counsel had no way to demonstrate
either the “material and exculpatory” nature of the alleged conversations or
the bad faith of the police.
7
8
9
10
11
12
13
14
15
Trial counsel filed an unsuccessful motion to suppress the 27 calls and raised
the related Willits issue again in a Renewed Motion for Mistrial. However,
as trial counsel accurately recognized, any claim as to the content of the
phone calls is purely speculative. . . .
Defendant claims that trial counsel should have briefed, argued and advanced
the argument that the State had a clear obligation to preserve exculpatory
evidence in its possession. However, because there is no evidence that the
lost calls were either exculpatory or exonerating, the State had no obligation
to preserve them. Therefore, trial counsel’s performance was not deficient as
counsel pursued the claim and preserved the issue for appeal.
(Id. at 7) (citations and footnote omitted).
16
In Claim 2, Speer alleges that counsel had notice of the calls and “were ineffective
17
in failing to seek out, review, and preserve the recordings of the 31 destroyed phone calls.”
18
19
20
21
22
23
24
25
26
27
28
(Doc. 13 at 64.) The PCR court rejected this claim:
Given the content and context of the calls that were preserved, trial counsel’s
actions were not unreasonable. Trial counsel would be justified in concluding
that the additional tapes, which were eventually destroyed, would also have
contained Defendant’s self-serving professions of love and actions taken for
family members, made amidst attempts to secure his own ends (bail to secure
his release from jail, the victim’s non-attendance at court to secure dismissal
of the criminal action, and ultimately the murder), and would not be helpful,
either in the case-in-chief or as mitigation.
(ME 5/20/15 at 8.)
In Claim 3, Speer alleges that trial counsel performed ineffectively in seeking
discovery of the recorded phone calls. (Doc. 13 at 69.) He cites counsel’s failure to join
Womble’s discovery motion, failure to refute the prosecutor’s arguments that she had
- 20 -
1
fulfilled her discovery obligations, and failure to establish that there were 58 total calls and
2
that some of the unpreserved calls “almost certainly contained mitigation evidence.” (Doc.
3
13 at 69–70.)
4
The PCR court denied the claim, finding it “not a cognizable PCR claim under Rule
5
32.” (ME 5/20/15 at 8.) The court also noted that the Arizona Supreme Court, in co-
6
defendant Womble’s case, “found that because the State produced all calls taped by the
7
detectives and disclosed a list of the phone calls they reviewed but did not preserve, they
8
complied with Rule 15.1(b)(2).” (Id.) (citing State v. Womble, 225 Ariz. 91, 97, 235 P.3d
9
244, 250 n.5 (2010)). The court concluded that because the discovery claim was meritless,
10
counsel did not perform deficiently by failing to raise it and Speer was not prejudiced. (Id.
11
at 9.)
12
The PCR court’s decisions were neither contrary to nor unreasonable applications
13
of clearly established federal law, nor were they based on unreasonable factual
14
determinations.
15
With respect to Claim 1, counsel did not perform ineffectively by failing to argue
16
that the prosecutor violated her obligations under Kyles. As the PCR court explained, the
17
prosecutor’s duty under Kyles is to learn of “favorable evidence.” 514 U.S. at 437 (citing
18
Brady, 373 U.S. at 87, and United States v. Bagley, 473 U.S. 667, 675 (1985)). “Favorable
19
evidence” is evidence that “could reasonably be taken to put the whole case in such a
20
different light as to undermine confidence in the verdict.” Id. at 435. As already discussed,
21
the destroyed tapes constituted potentially useful evidence under Youngblood and
22
Trombetta, but not favorable or material evidence under Brady and Kyles. See Fisher, 540
23
U.S. at 548.
24
There is a second reason counsel did not perform ineffectively by failing to cite
25
Kyles in their motion to suppress. Counsel did argue, citing State v. Tucker, 157 Ariz. 433,
26
438, 759 P.2d 579, 584 (1988), that “due process requires that the State ‘disclose
27
exculpatory evidence that is material on the issue of guilt or punishment.’” (EIR 195 at 6.)
28
- 21 -
1
Tucker, in turn, cites Brady. 157 Ariz. at 438, 759 P.2d at 584. Having cited cases that rely
2
on Brady, counsel did not perform ineffectively in failing to cite Kyles as well.
3
With respect to Claim 2, as the PCR court noted, based on the content of the 27 calls
4
that were preserved, counsel did not perform ineffectively in failing to preserve the 31
5
recordings that were destroyed. In particular, Speer cannot meet his burden of showing he
6
was prejudiced by counsel’s failure to preserve the tapes.
7
Finally, with respect to Claim 3, the PCR court correctly noted that in Womble’s
8
case, based on the same facts, the Arizona Supreme Court found there was no Rule 15
9
violation. Because there was no discovery violation, counsel cannot be faulted for failing
10
to litigate the issue. See Gonzalez v. Knowles, 515 F.3d 1006, 1016 (9th Cir. 2008)
11
(“[C]ounsel cannot be deemed ineffective for failing to raise [a] meritless claim.”); Jones
12
v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (“It should be obvious that the failure of an
13
attorney to raise a meritless claim is not prejudicial.”); Rupe v. Wood, 93 F.3d 1434, 1445
14
(9th Cir. 1996) (explaining that “the failure to take a futile action can never be deficient
15
performance”); James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (“Counsel’s failure to make
16
a futile motion does not constitute ineffective assistance of counsel.”); Boag v. Raines, 769
17
F.2d 1341, 1344 (9th Cir. 1985) (“Failure to raise a meritless argument does not constitute
18
ineffective assistance.”).
19
Accordingly, with respect to Claims 1, 2, and 3, “there is [a] reasonable argument
20
that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105. The
21
claims fail to satisfy the doubly deferential standard that governs ineffective assistance of
22
counsel claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S. at 15. They
23
are therefore denied.
24
Claims 4 and 9:
25
In Claim 9, Speer alleges that his due process rights were violated when the trial
26
court failed to give a Willits instruction. (Doc. 13 at 91.) In Claim 4, he alleges that trial
27
counsel were ineffective for failing to support their request for a Willits instruction with
28
“adequate legal authority.” (Id. at 57.)
- 22 -
1
Counsel twice requested a Willits instruction: in their proposed jury instructions,
2
which included the standard instruction for lost or destroyed evidence with a citation to
3
Willits, and later in a motion and supporting memorandum. (EIR 499, 535.)
4
Claim 9
5
On direct appeal, Speer argued that the failure to provide a Willits instruction
6
violated his due process rights under the Arizona constitution and “the Fifth and Fourteenth
7
Amendments to the United States Constitution.” (Opening Br. at 19.) Respondents contend
8
that this “drive-by” citation to federal authority is not sufficient to fairly present a federal
9
claim. (Doc. 16 at 44–45.)
10
To fairly present a claim, a petitioner “must make the federal basis of the claim
11
explicit either by specifying particular provisions of the federal Constitution or statutes, or
12
by citing to federal case law.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005).
13
Here, Speer satisfied that requirement by “relat[ing] his claim to the Due Process Clause
14
of the U.S. Constitution” and “cit[ing] the Fourteenth Amendment.” Castillo v. McFadden,
15
399 F.3d 993, 999 (9th Cir. 2005).
16
The Arizona Supreme Court denied the claim, holding that the trial court’s refusal
17
to provide the instruction was not an abuse of discretion because “Speer did not
18
demonstrate that the erased tapes might have exonerated him or even mitigated his
19
participation in the murder plot.” Speer, 221 Ariz. at 457, 212 P.3d at 795. Instead, as
20
already noted, the court concluded that there was “no logical inference that these nine
21
[calls] had a tendency to exonerate.” Id.
22
Speer also raised the claim during his PCR proceedings, alleging that the failure to
23
provide a Willits instruction denied him “a fair trial” and was “not only a state due process
24
violation, but also a federal due process violation under the Sixth and Fourteenth
25
Amendments to the U.S. Constitution.” (PCR Pet. 10/25/14 at 31, 34.) The court found the
26
claim precluded under Rules 32.6(c) and 32.2(a) because it had been raised and denied on
27
direct appeal. (ME 5/20/15 at 10.) The court alternatively found the claim meritless because
28
Speer had not established that the destroyed calls had a “tendency to exonerate him.” (Id.)
- 23 -
1
The court also determined that Speer was not harmed because trial counsel were allowed
2
to argue to the jury that the State had failed to preserve relevant evidence. (Id.)
3
“To be entitled to a Willits instruction, a defendant must prove that (1) the state
4
failed to preserve material and reasonably accessible evidence that could have had a
5
tendency to exonerate the accused, and (2) there was resulting prejudice.” State v. Smith,
6
158 Ariz. 222, 227, 762 P.2d 509, 514 (1988). To show that evidence had a tendency to
7
exonerate, “the defendant must do more than simply speculate about how the evidence
8
might have been helpful.” State v. Glissendorf, 235 Ariz. 147, 150, 329 P.3d 1049, 1052
9
(2014); see State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995) (“A Willits
10
instruction is not given merely because a more exhaustive investigation could have been
11
made”). Rather, “there must be a real likelihood that the evidence would have had
12
evidentiary value.” Id. However, the tendency to exonerate requirement “does not mean
13
the evidence must have had the potential to completely absolve the defendant.” Id. “[A]
14
defendant is entitled to an instruction if he can demonstrate that the lost evidence would
15
have been material and potentially useful to a defense theory supported by the evidence.”
16
Id. (internal quotations and citations omitted).
17
Habeas review of a claim based on a failure to give a jury instruction is limited to a
18
determination of whether that failure so infected the entire proceedings that the defendant
19
was deprived of his right to a fair trial. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th
20
Cir. 1988). Because the omission of an instruction is less likely to be prejudicial than a
21
misstatement of the law, a habeas petitioner whose claim involves a failure to give a
22
particular instruction bears an “especially heavy” burden. Henderson v. Kibbe, 431 U.S.
23
145, 155 (1977); see Simmons v. Arizona, No. CV-12-00435-TUC-JGZ, 2015 WL
24
1405431, at *8 (D. Ariz. Mar. 26, 2015).
25
Speer has not met that burden. The failure to provide a Willits instruction did not
26
violate his right to a fair trial. See United States v. Dee, 319 F.App’x 578, 582 (9th Cir.
27
2009) (finding no error in court’s failure to give adverse inference instruction where there
28
was no evidence of bad faith or prejudice and “counsel was allowed to argue that the jury
- 24 -
1
should draw an adverse inference from the fact that some evidence was not collected or
2
was not preserved, which he did during his closing argument”) (citing United States v.
3
Artero, 121 F.3d 1256, 1259 (9th Cir. 1997)). As the PCR court noted, counsel were
4
permitted to raise the issue of the destroyed phone calls in their closing argument. Counsel
5
stated “we don’t know what was on those calls,” argued they “should have been provided
6
an opportunity to see . . . what might have been revealed,” suggested the calls could have
7
contained exculpatory information, and questioned the detectives’ motives for allowing the
8
tapes to be destroyed. (RT 1/17/07 at 143–45.)
9
The state court decisions denying this claim were neither contrary to nor an
10
unreasonable application of clearly-established federal law, nor were they based on an
11
unreasonable determination of the facts.
12
Claim 4
13
Speer alleges that counsel performed ineffectively by failing to support their motion
14
for a Willits instruction with “proper case law.” (Doc. 13 at 58.) The PCR court denied the
15
claim, finding that counsel did not perform deficiently under Strickland. The court
16
explained:
17
18
19
20
Trial counsel requested a Willits instruction, supported by a separately-filed
Defense Memo in Support of Motion for Willits Instruction . . . , which this
Court denied. Trial counsel raised the issue again in Defendant’s Renewed
Motion for Mistrial. . . . This Court’s ruling denying a Willits instruction
was upheld by the Supreme Court.
21
(ME 5/20/15 at 10.) This decision was neither contrary to nor an unreasonable application
22
of clearly established federal law.
23
Speer faults counsel for not citing Willis itself and, contending that the trial court
24
applied the wrong standard in denying the instruction, for failing to cite other cases holding
25
that “a defendant need not prove that the evidence has absolute, exculpatory value, evident
26
before its destruction.” (Doc. 13 at 59.) For example, according to Speer, counsel should
27
have cited State v. Hunter, which held that to be entitled to a Willits instruction “[a]n
28
accused need not prove that evidence destroyed by the state would have conclusively
- 25 -
1
established a defense. An accused need only show that if the evidence had not been
2
destroyed, it might have tended to exonerate him.” 136 Ariz. 45, 51, 664 P.2d 195, 201
3
(1983) (additional quotation omitted).
4
This criticism is unpersuasive. First, counsel cannot be faulted for failing to cite
5
Willits when they explicitly asked, twice, for a Willits instruction. (EIR 499, 535.) Next,
6
counsel did cite the correct standard when they argued, citing State v. Reffitt, 145 Ariz.
7
452, 461, 702 P.2d 681, 690 (1985), that a defendant is entitled to a Willits instruction
8
where “the State failed to preserve material evidence that was accessible and might have
9
tended to exonerate him.” (EIR 535 at 1.) Counsel also cited Hunter, one of the cases Speer
10
faults them for not citing. (Id. at 2.)
11
Speer also criticizes counsel for not citing State v. Lopez, 163 Ariz. 108, 113, 786
12
P.2d 969, 964 (1990), which used the phrase “potentially helpful” to describe evidence
13
subject to a Willits instruction. (Doc. 13 at 59–60.) The Arizona Supreme Court has
14
explained, however, that it has “used the phrase ‘potentially helpful’ interchangeably with
15
‘tendency to exonerate.’” Glissendorf, 235 Ariz. at 150, 329 P.3d at 1052 (citing Lopez,
16
163 Ariz. at 113, 786 P.2d at 964).
17
Finally, as the PCR court noted, the Arizona Supreme Court found that Speer was
18
not entitled to a Willits instruction. Counsel cannot be faulted for attempting to secure relief
19
to which Speer was not entitled. Under these circumstances, even if trial counsel had not
20
sought a Willits instruction, their performance would not have been constitutionally
21
ineffective. See Garduno v. Lewis, 365 F.App’x 820, 822 (9th Cir. 2010) (“Because the
22
underlying arguments [concerning the jury instruction] lack merit, counsel was not
23
ineffective for failing to raise them.”) (citing Boag, 769 F.2d at 1344).
24
Claim 4 does not satisfy the doubly deferential standard that governs ineffective
25
assistance of counsel claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S.
26
at 15.
27
Claim 13 (in part):
28
Speer alleges that the prosecutor committed misconduct and violated Brady by
- 26 -
1
failing to disclose all 58 of the recorded phone calls, including the 22 recordings that were
2
destroyed without being reviewed. (Id. at 113.) In his PCR petition Speer alleged the
3
prosecutor violated Rule 15.1 and Brady by failing to disclose all the tapes. (PCR Pet. at
4
25–30.) The PCR court denied the claim as waived and precluded under Rule 32.2(a)(3)
5
because it could have been raised on appeal. (ME 5/20/15 at 8.) Because this is an
6
independent and adequate state procedural bar, Stewart v. Smith, 536 U.S. 856, 860 (2002)
7
(per curiam), the claim is procedurally defaulted. The PCR court’s alternative merits ruling
8
does not nullify the default. Harris v. Reed, 489 U.S. 255, 264 n.10 (1989).
9
10
Speer argues that its default is excused by the ineffective assistance of appellate and
PCR counsel. (See Doc. 13 at 119.) He is incorrect.
11
First, ineffective assistance of appellate counsel may be used as cause to excuse a
12
procedural default only where the particular ineffective assistance allegation was first
13
exhausted in state court as an independent constitutional claim. See Edwards v. Carpenter,
14
529 U.S. 446, 453 (2000); Murray v. Carrier, 477 U.S. 478, 489–90 (1986). Speer did not
15
raise such a claim of ineffective assistance of appellate counsel. Second, under Martinez
16
the ineffective assistance of PCR counsel can excuse the default only of claims of
17
ineffective assistance of trial counsel. See Hunton, 732 F.3d at 1126–27 (finding Martinez
18
does not excuse default of Brady claim); see also Martinez (Ernesto), 926 F.3d at 1225;
19
Pizzuto, 783 F.3d at 1177. Accordingly, this aspect of Claim 13 remains defaulted and
20
barred from federal review.
21
Conclusion
22
Speer has not met his burden of showing the police acted in bad faith in allowing
23
the destruction of the tapes or that the State violated Brady by failing to disclose the tapes.
24
He has not met his burden under Strickland of showing that counsel performed
25
ineffectively in litigating the issues surrounding the recordings, including the request for a
26
Willits instruction. Finally, he has failed to meet his burden under AEDPA of showing
27
“there was no reasonable basis for the state court to deny relief” on these claims, which are
28
therefore denied. See Richter, 562 U.S. at 98.
- 27 -
1
B.
2
Speer raises several additional claims alleging that counsel performed ineffectively
3
during the guilt phase of trial. He also alleges that appellate counsel performed
4
ineffectively by failing to raise two of these issues. The Court will consider the underlying
5
claims along with the related ineffective assistance claims. The claims are all meritless.
Ineffective Assistance of Counsel: Guilt Phase Issues
6
Claims 5, 10, and 26 (in part):
7
In Claim 5, Speer alleges trial counsel performed ineffectively in cross-examining
8
Det. Olson. (Doc. 13 at 61.) Specifically, he contends that counsel should have used
9
Olson’s answers in a deposition in a civil suit arising out of a wrongful conviction in a prior
10
murder case. (Id. at 62.) In Claim 10, Speer alleges that his confrontation rights were
11
violated by the limitations imposed by the trial court on counsel’s cross-examination of
12
Olson. (Id. at 97.) In Claim 26, he alleges that appellate counsel performed ineffectively
13
by failing to raise the confrontation claim. (Id. at 248.)
14
Additional background
15
On September 14, 2006, Speer’s counsel moved for production of Det. Olson’s
16
internal affairs records. (EIR 310.) The request was based on Olson’s involvement in the
17
Kim Ancona murder case, for which Ray Krone was erroneously convicted and sentenced
18
to death. (Id.) The motion cited what counsel characterized as Olson’s erroneous claim,
19
made during a television appearance, that detectives had found sheets with Ancona’s blood
20
in the trunk of Krone’s car. (Id.) After his exoneration, Krone filed a civil suit. (Id.)
21
The trial court found no disciplinary actions in Det. Olson’s records. (RT 12/13/06,
22
a.m., at 11.) The prosecutor asked the court to preclude any questioning about the Krone
23
case. (Id.) The defense wanted to cross-examine Olson about mistakes he had made in the
24
case and his failure to conduct a complete investigation. (Id.) The court deferred its ruling.
25
(Id. at 13.)
26
On January 8, 2007, Speer filed a motion to permit cross-examination of Det. Olson
27
about his involvement in the Krone case. (EIR 501.) Counsel sought to impeach Olson with
28
answers he gave in a deposition in the civil suit. (Id.) Counsel argued that while Olson
- 28 -
1
denied making errors in the Krone case, his deposition answers acknowledged flaws in the
2
investigation. (Id. at 2–3.) Counsel cited Rule 608 of the Arizona Rules of Evidence, which
3
permits inquiry into specific instances of conduct for purposes of attacking a witness’s
4
character for truthfulness or untruthfulness. (Id. at 3.) They also argued that they were
5
entitled to cross-examine Det. Olson about the Krone case to prove bias, prejudice, and
6
motive—namely, Olson’s desire to vindicate his reputation after the Krone case by
7
securing a conviction against Speer. (Id. at 2–4.) Finally, they argued that such evidence
8
was admissible under Rule 404(b) to show motive and that Det. Olson had “knowledge of
9
how an investigation should and should not be conducted.” (Id. at 5.)
10
The court, trying to “strike a balance,” ruled as follows:
11
Detective Olson may be questioned about comments he made about
investigation techniques in general. . . . [I]f you want to ask him about
comments he’s previously made without identifying cases, you can. He can
also be questioned about any acknowledgment he may have made that
detectives, like all of us, are human and have made mistakes before, even
mistakes in previous investigations. But the Krone case can’t be mentioned.
Facts specific to that case can’t be mentioned. The outcome of that case can’t
be discussed. TV segments can’t be introduced, and transcripts from previous
testimony don’t come in either.
12
13
14
15
16
17
18
19
20
21
22
23
(RT 1/9/07 at 17.)
The court found that mistakes Det. Olson made in the Krone case would not be
probative for truthfulness in the Speer case and therefore Rule 608 did not apply. (Id. at
18.) The court found that Rule 404(B) did not apply because the other acts Speer sought to
prove would show Olson’s character and that he was acting in conformity therewith. (Id.)
Instead, the court explained, defense counsel would be permitted to examine Olson
in general as to mistakes he may have made in other cases. (Id. at 19.) While counsel would
24
not be allowed to use the transcript of Det. Olson’s civil deposition, they could ask if he
25
had admitted making mistakes in a prior deposition. They would “be stuck with his
26
27
28
answer,” however. (Id.)
Speer contends that counsel performed ineffectively because they “asked no
questions whatsoever about the many mistakes they knew existed in the Krone case, which
- 29 -
1
they could have done without naming the case itself.” (Doc. 13 at 63.) He argues that
2
“[e]ven within the limitations of the court’s demands, the deposition provided powerful
3
fodder to show that Olson was simply not a thorough, detail-oriented detective”—“a line
4
of cross-examination [that] fit precisely with Speer’s theory that Olson committed
5
investigational errors in failing to properly preserve the phone call evidence.” (Id. at 65.)
6
Speer argues that, given the central role Det. Olson played in investigating the Soto murder,
7
he was prejudiced by the omission of evidence of the detective’s “shoddy investigative
8
practices” in the Krone case. (Id. at 66.)
9
Speer raised this claim during the PCR proceedings. (PCR Pet. at 42–50.) The court
10
analyzed the claim under “the strictures of Strickland,” finding that counsel’s performance
11
was neither deficient nor prejudicial. (ME 5/20/15 at 12.) The court first stated that it would
12
not “second-guess the strategic decisions of trial counsel.” (Id. at 13.) The court then found
13
that “[t]he record supports the conclusion that counsel made a strategic decision not to
14
cross-examine Detective Olson about his investigative techniques.” (Id.) The court
15
continued:
20
In support of this conclusion, the Court observes that trial counsel
investigated the Krone matter and Detective Olson’s role. Counsel filed and
argued a motion to have the specific investigation mentioned, although
counsel did not prevail and was properly limited to a generic crossexamination as to his methods in connection with “other” cases. Once the
parameters have been identified, the extent of cross-examination is within
the tactical decisions afforded trial counsel.
21
(Id.) The court then determined that Speer “suffered no prejudice” because counsel were
22
“permitted to argue . . . the shoddy investigation and the detective’s one-sided
23
determination as to which tapes to preserve.” (Id.) The court explained:
16
17
18
19
24
25
26
27
28
To that end, trial counsel focused on the things Detective Olson failed to do,
such as failing to obtain fingerprint samples from people who were in the
victims’ home; failing to take shoe sole impressions from people he believed
were at the crime scene in order to compare them to footprints found at the
scene; failing to collect gunshot residue from anyone inside the victims’
home; failing to search for human hair samples at the murder scene; and
Detective Olson was forced to admit to every recorded jail call he failed to
- 30 -
1
2
listen to, which reinforced the argument that he was not a thorough
investigator.
3
(Id.) Finally, the court determined that the strength of the evidence against Speer precluded
4
a finding that he was prejudiced by counsel’s cross-examination of Det. Olson:
5
6
7
8
9
[I]t is improbable that the jury would have evaluated the existing tapes
differently had they been informed of the detective’s role in the Krone case.
Had there been evidence of a shoddy investigation and/or untruthfulness by
the detective connected with a separate case, it is the Court’s view that the
jury still would have focused most of its attention on the validity of the
evidence, the tapes themselves. The jail tapes essentially “spoke for
themselves.”
...
10
11
12
13
14
15
Given the contents of the tapes coupled with corroborating testimony of
witnesses, Defendant’s motivation and the theft/burglary police report found
in Defendant’s cell that identified the victims, and co-defendant Womble’s
palm print on the window screen to the victims’ apartment, there is no
reasonable probability that the jury would have had a reasonable doubt
respecting Defendant’s guilt.
(Id. at 13–14.)
16
Analysis
17
This decision was neither contrary to nor an unreasonable application of clearly
18
established federal law. First, Speer had not rebutted the “strong presumption” that counsel
19
limited his cross-examination of Det. Olson “for tactical reasons rather than through sheer
20
neglect.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003); Cheney v. Washington, 614 F.3d
21
987, 996 (9th Cir. 2010); see Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002)
22
(“Decisions about ‘whether to engage in cross-examination, and if so to what extent and in
23
what manner, are . . . strategic in nature’ and generally will not support an ineffective
24
assistance claim.”) (additional quotation omitted). It was not unreasonable for counsel to
25
focus on the alleged deficiencies in Det. Olson’s investigation in Speer’s case rather than
26
pursuing a “generic” cross-examination about his investigation in other cases.
27
As the PCR court noted, counsel cross-examined Olson about his failure to take
28
fingerprint samples and shoeprint impressions; failure to collect gunshot residue; and
- 31 -
1
failure to search for hair samples. (RT 12/11/06 at 44–80.) Counsel also emphasized Det.
2
Olson’s failure to listen to and preserve numerous jail calls. (RT 1/10/07 at 28–113.) All
3
this, as the PCR court found, “reinforced the argument that he was not a thorough
4
investigator.” (ME 5/20/15 at 13.) Having made that argument, counsel did not perform
5
deficiently, or to Speer’s prejudice, by failing to pose questions about prior investigations.
6
See Floyd v. Filson, 949 F.3d 1128, 1143–44 (9th Cir.), cert. denied sub nom. Floyd v.
7
Gittere, 141 S. Ct. 660 (2020) (“In prior cases in which we and other circuits have
8
recognized constitutionally deficient cross-examination, there were glaring failures to ask
9
even basic questions, not—as here—a strategic choice between one means of undermining
10
the witness and another.”).
11
Finally, the PCR court reasonably determined that the strength of the evidence
12
against Speer foreclosed a finding of prejudice. The jury heard Speer’s phone calls to Brian
13
Womble that laid out the plot to kill the Sotos. Cross-examining Det. Olson about
14
shortcomings in prior investigations would not have countered this key evidence of Speer’s
15
guilt. Moreover, the gravamen of counsel’s examination was that Olson’s investigation was
16
faulty precisely with respect to Speer’s jailhouse calls.
17
Claim 5 is denied. It fails to satisfy the doubly deferential standard that governs
18
ineffective assistance claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S.
19
at 15.
20
Speer raised Claim 10 in his PCR petition, alleging a violation of his confrontation
21
rights based on the trial court’s limitations on the cross-examination of Det. Olson. (PCR
22
Pet. at 37–41.) The court found the claim waived and precluded because it could have been
23
raised on direct appeal. (ME 5/20/15 at 11.)
24
Speer argues that the claim’s default is excused by the ineffective assistance of
25
appellate counsel. (Doc. 13 at 98, 100.) Ineffective assistance of appellate counsel may be
26
used as cause to excuse a procedural default where the particular ineffective assistance
27
allegation was first exhausted in state court as an independent constitutional claim. See
28
Carpenter, 529 U.S. at 453; Carrier, 477 U.S. at 489–90.
- 32 -
1
In his PCR petition Speer alleged that appellate counsel performed ineffectively by
2
failing to raise a claim challenging the trial court’s ruling on Det. Olson’s cross-
3
examination. (PCR Pet. at 41.) Speer did not, however, properly exhaust the claim by
4
including it in his Petition for Review. (See Doc 16-1, Ex. D.) Boerckel, 526 U.S. at 848
5
(explaining that to exhaust state remedies, the petitioner must “fairly present” his claims to
6
the state’s highest court in a procedurally appropriate manner); Swoopes v. Sublett, 196
7
F.3d 1008 (9th Cir. 1999) (per curiam) (holding that capital prisoners must seek review in
8
Arizona Supreme Court to exhaust claims). Therefore, he did not fairly present the claim
9
to the Arizona Supreme Court. Speer may not exhaust the claim now because he does not
10
have an available state court remedy. Because the claim of ineffective assistance of
11
appellate counsel was not exhausted, the default of Claim 10 is not excused and the claim
12
will be denied as barred from federal review.
13
In Claim 26 of his habeas petition Speer alleges ineffective assistance of appellate
14
counsel. (Doc. 13 at 248.) As just stated, he raised this allegation in his PCR petition, where
15
it was denied as meritless (ME 5/20/15 at 11–12),but did not include the claim in his
16
petition for review. Its default is not excused, see Davila, 137 S. Ct. at 2065, so the claim
17
is barred from federal review.
18
Claims 10 and 26 are also meritless. In Claim 10 Speer alleges that his right to
19
confront Det. Olson was violated by the trial court’s ruling that counsel could not question
20
him directly about the Krone case. (Doc. 13 at 97.)
21
“[T]he Confrontation Clause is generally satisfied when the defense is given a full
22
and fair opportunity to . . . expose [testimonial] infirmities through cross-examination.”
23
Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (per curiam). “To state a violation of the
24
Confrontation Clause, a defendant must show ‘that he was prohibited from engaging in
25
otherwise appropriate cross-examination designed to show a prototypical form of bias on
26
the part of the witness.’” Sully v Ayers, 725 F.3d 1057, 1074 (9th Cir. 2013) (quoting
27
Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)). The Supreme Court “has never held
28
- 33 -
1
that the Confrontation Clause entitles a criminal defendant to introduce extrinsic evidence
2
for impeachment purposes.” Nevada v. Jackson, 569 U.S. 505, 512 (2013).
3
The trial court’s ruling prevented Speer’s counsel only from using the transcript
4
from Krone’s civil lawsuit and from specifically referring to the Krone case. The court’s
5
prohibition on the use of this extrinsic evidence did not violate Speer’s confrontation rights.
6
Id.; see, e.g., Murray v. Schriro, No. CV-99-1812-PHX-DGC, 2008 WL 1701404, at *20–
7
21 (D. Ariz. April 10, 2008) (finding petitioner not entitled to relief on confrontation claim
8
where trial court prohibited impeachment of detective using transcript from previous trial),
9
aff’d, 745 F.3d 984 (9th Cir. 2014); see Bright v. Shimoda, 819 F.2d 227, 229 (9th Cir.
10
1987) (federal habeas court will rarely find a constitutional violation if the defendant was
11
allowed to cross examine a witness at length and was restricted solely on a collateral
12
matter). For these reasons Claim 10 is meritless.
13
Finally, Claim 26, alleging ineffective assistance of appellate counsel, is meritless.
14
The PCR court denied the claim, explaining that the Arizona Supreme Court would have
15
rejected the claim pursuant to State v. Murray, 184 Ariz. 9, 906 P.2d 542 (1995). (ME
16
5/20/15 at 11.) As the PCR court noted, in Murray the Arizona Supreme Court set
17
“parameters for impeachment of witnesses using evidence of specific instances of
18
conduct.” (Id., n.3.) Under those parameters, which precluded the use of extrinsic evidence,
19
exclusion of the Krone transcript was not an abuse of discretion. See Murray, 184 Ariz. at
20
30–31, 906 P.2d at 563–64. Appellate counsel did not perform ineffectively by failing to
21
raise this meritless confrontation claim. See Jones v. Smith, 231 F.3d 1227, 1239 n.8 (9th
22
Cir. 2000) (finding no prejudice when appellate counsel fails to raise an issue on direct
23
appeal that is not grounds for reversal); Miller v. Kenney, 882 F.2d 1428, 1434 (9th Cir.
24
1989) (explaining that appellate counsel remains above an objective standard of
25
competence and does not cause prejudice when he declines to raise a weak issue on appeal).
26
Claims 6, 26 (in part):
27
Speer alleges that defense counsel performed ineffectively by failing to object to the
28
court’s accomplice instruction and failing to offer a correct instruction. (Doc. 13 at 68.) He
- 34 -
1
argues that the instruction provided by the court, by referring to “an” offense rather than
2
“the” offense, allowed the jury to convict him if it found he was an accomplice in any of
3
the charged offenses, not just the murder. (Id.) He also alleges that appellate counsel
4
performed ineffectively by failing to raise a claim challenging the instruction. (Id. at 247.)
5
Speer raised these claims during his PCR proceedings and the court found them meritless.
6
The trial court provided the following “accomplice” instruction:
7
A person is criminally accountable for the conduct of another if: One,
acting with the culpable mental state sufficient for the commission of the
offense, such person causes another person to engage in such conduct; or,
two, the person is an accomplice of the other person in the commission of an
offense.
8
9
10
11
“Accomplice” means a person who, with the intent to promote or
facilitate the commission of an offense, does any of the following:
12
13
14
15
16
17
18
19
20
21
1. Solicits or commands another person to commit an offense; or
2. Aids, counsels, agrees to aid, or attempts to aid another person in
planning or committing an offense; or
3. Provides means or opportunity to another person to commit an
offense.
A defendant is criminally accountable for the conduct of another if the
defendant is an accomplice of such other person in the commission of the
offense. This criminal liability extends only to offenses that the defendant
intended to aid, solicit, facilitate, or command.
(RT 1/17/07 at 23 (emphasis added); see also EIR 534 at 18.)
22
In denying Speer’s claim that counsel performed ineffectively in failing to challenge
23
the instruction, the PCR court relied on State v. Rojo-Valenzuela, 235 Ariz. 617, 334 P.3d
24
1276 (Ct. App. 2014), aff’d, 237 Ariz. 448, 352 P.3d 917 (2015). There the court of appeals
25
rejected the defendant’s argument that the attempted murder jury instruction provided by
26
the trial court was impermissibly vague and would allow him to be convicted of attempted
27
first-degree murder if the jury found that he had attempted to commit any crime. Id. at 622,
28
334 P.3d at 1281. The appellate court held that “no reasonable juror would have interpreted
- 35 -
1
the court’s instruction on attempted first-degree murder as permitting a guilty verdict based
2
on a finding that he had been attempting to commit another crime, given the content of the
3
instruction and its juxtaposition with an instruction on the substantive crime of first-degree
4
murder.” Id. at 623, 334 P.3d at 1282.
5
The PCR court, citing Rojo-Valenzuela, explained that jury instructions must be
6
considered “as a whole.” (ME 5/20/15 at 22.) The court noted it had instructed the jury that
7
in order to find Speer guilty of the charged offenses, it needed to find Womble guilty of
8
the same specific charges. (Id.) The court then noted that the accomplice instruction
9
immediately preceded the first-degree murder instruction, explaining that “the placement
10
indicates First Degree Murder as the basis of accomplice liability.” (Id.) Finally, the court
11
noted that the last paragraph of the instruction did refer to “the” offense and stated that
12
Speer could be found guilty only of crimes he “intended to aid, solicit, facilitate, or
13
command.” (Id.) The court concluded that the “language focuses the jury’s attention on the
14
particular offense under consideration”; that jurors are “presumed to follow the court’s
15
instructions”; and that “in this case, it is mere speculation that they did not.” (Id.)
16
Accordingly, the court explained, “there [was] not a reasonable likelihood that the jury
17
would have concluded that this instruction, read in the context of the other instructions,
18
would have authorized a First Degree Murder conviction if Defendant were only an
19
accomplice to burglary or conspiracy.” (Id. at 23.)
20
Based on this analysis, the court ruled that Speer’s counsel did not perform
21
ineffectively by failing to object to the instruction as given or by failing to propose that the
22
court use “the offense” instead of “an offense” in the accomplice instruction. (Id.) The
23
court explained that neither trial nor appellate counsel was ineffective for failing to
24
preserve or raise such “meritless issues.” (Id.)
25
The PCR court’s ruling does not entitle Speer to habeas relief. First, Speer cites no
26
authority holding that the instruction as given was incorrect. Contrary to Speer’s argument
27
(Doc. 13 at 60), the final paragraph of the accomplice instruction explained that the
28
principal and the accomplice must have the same intent for the commission of the specific
- 36 -
1
crime. Neither trial nor appellate counsel performed deficiently by failing to object to a
2
correct instruction. See Rupe, 93 F.3d at 1445; James, 24 F.3d at 27.
3
Moreover, reading the instructions as a whole, including the final paragraph of the
4
accomplice instruction and the first-degree murder instruction which immediately
5
followed, demonstrates there was no “‘reasonable likelihood’ that the jury applied the
6
instruction in a way that relieved the State of its burden of proving every element of the
7
crime beyond a reasonable doubt.” Waddington v. Sarausad, 555 U.S. 179, 190–91 (2009)
8
(quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)); see Rojo–Valenzuela, 235 Ariz. at
9
623, 334 P.3d at 1282 (citing “the content of the instruction and its juxtaposition with an
10
instruction on the substantive crime of first-degree murder”).
11
Claims 6 and 26 (in part) do not satisfy the doubly deferential standard governing
12
ineffective assistance claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S.
13
at 15.
14
Claim 7:
15
Speer alleges that trial counsel performed ineffectively by failing to move to vacate
16
his conviction and sentence after the same prosecutor presented a conflicting theory of the
17
crime at Womble’s trial. (Doc. 13 at 74.) Speer did not raise this claim in state court. He
18
argues that the default of the claim is excused by the ineffective assistance of appellate and
19
PCR counsel. In Arizona, claims of ineffective assistance of trial counsel cannot be brought
20
on direct appeal, see Runningeagle, 825 F.3d at 980–82, so appellate counsel did not
21
perform ineffectively by failing to raise this claim. Because the claim is without merit, PCR
22
counsel did not perform ineffectively by failing to raise it.
23
Speer contends that the prosecutor committed misconduct by arguing opposing
24
theories of the crime in the Speer and Womble trials. According to Speer, after convincing
25
the jury in his trial that he was the “mastermind who manipulated his vulnerable younger
26
brother into committing the crime,” the prosecutor took the opposite position in Brian
27
Womble’s trial, arguing that it was Brian’s idea to murder the Sotos and that Speer had no
28
influence over his brother’s behavior. (Doc. 13 at 75–78.) Speer alleges that counsel should
- 37 -
1
have been aware of the prosecutor’s conduct in the Brian Womble case and cited it as
2
grounds to vacate his conviction under Rule 24.2(a) of the Arizona Rules of Criminal
3
Procedure.14 Under Rule 24.2(a), a court “must vacate a judgment if it finds that . . . (2)
4
newly discovered material facts exist satisfying the standards in Rule 32.1(e); or (3) the
5
conviction was obtained in violation of the United States or Arizona constitutions.”15 (Id.
6
at 78–80.) Speer contends that there was a reasonable probability that such a motion would
7
have been granted. (Id. at 80–81.) That argument is not persuasive.
8
Trial counsel did not perform ineffectively because it was not impermissible for the
9
prosecutor to argue different theories with respect to the co-defendants. The cases Speer
10
cites do not support his claim. In Bradshaw v. Stumpf, 545 U.S. 175 (2005), for example,
11
the Supreme Court reversed the Sixth Circuit’s grant of habeas relief and held that a
12
defendant’s guilty plea was not rendered unknowing, involuntary, or unintelligent simply
13
because the prosecutor first asserted that the defendant shot and killed the victim, but in
14
the trial of his co-defendant argued that the co-defendant was the shooter. Justices Thomas
15
and Scalia in their concurring opinion noted that “[the Supreme] Court has never hinted,
16
much less held, that the Due Process Clause prevents a State from prosecuting defendants
17
based on inconsistent theories.” Id. at 190 (Thomas, J., concurring). “Since then, the
18
Supreme Court has not [sic] still suggested, let alone held, that due process concerns
19
prohibit prosecutors from taking alternative or inconsistent positions.” White v. White, No.
20
CV 5:02-492-KKC, 2021 WL 4236929, at *65–66 (E.D. Ky. Sept. 16, 2021) (citing
21
Littlejohn v. Trammell, 704 F. 3d 817, 852-53 (10th Cir. 2013)); cf. Dias v. Gipson, No. C
22
12-05146 BLF (PR), 2014 WL 5035578, at *20 (N.D. Cal. Oct. 1, 2014) (“Although the
23
Ninth Circuit has made no ruling on the issue of whether prosecuting defendants based on
24
25
26
27
28
14
A motion to vacate must be filed no later than 60 days after the entry of judgment
and sentence. Ariz. R. Crim. Proc. 24.2(b). Speer’s judgment was entered on May 11, 2007.
Counsel therefore had until July 10, 2007, to file a motion to vacate. The prosecutor gave
her closing argument in Brian Womble’s case on May 3, 2007.
15
Rule 32.1(e) provides grounds for relief where “newly discovered material facts
probably exist, and those facts probably would have changed the judgment or sentence.”
- 38 -
1
inconsistent theories violates due process, sister circuits have ruled that there is no clearly
2
established federal law on this issue. . . .”).
3
In Bradshaw the Supreme Court held that inconsistent positions taken by the
4
prosecution did not provide grounds to challenge the defendant’s conviction, but
5
“express[ed] no opinion on whether the prosecutor’s actions amounted to a due process
6
violation, or whether any such violation would have been prejudicial” with respect to the
7
defendant’s sentence and remanded the case to the Sixth Circuit. 545 U.S. at 187–88.
8
On remand the court concluded that the prosecution’s contention that the defendant
9
was the “triggerman” had an effect upon the death sentence imposed on him, and that “[t]o
10
allow a prosecutor to advance irreconcilable theories without adequate explanation
11
undermines confidence in the fairness and reliability of the trial and the punishment
12
imposed and thus infringes upon the petitioner’s right to due process.” The panel granted
13
habeas relief. Stumpf v. Houk, 653 F. 3d 426, 436 (6th Cir. 2011). The Sixth Circuit granted
14
rehearing en banc and vacated the panel decision. Stumpf v. Robinson, 722 F. 3d 739 (6th
15
Cir. 2013). The court held that “[a]ll that the prosecution did was to argue for two different
16
inferences from the same, unquestionably complete, evidentiary record. It left the
17
factfinder in [co-defendant] Wesley’s trial and the factfinders in Stumpf’s post-sentencing
18
proceedings to find the facts. This, without more, does not offend the Due Process Clause.”
19
Id. at 749.
20
Speer also cites Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc),
21
vacated on other grounds, 523 U.S. 538 (1998). Thompson and his codefendant, Leitch,
22
were tried separately for the rape and murder of the victim. 120 F.3d at 1055–56. The Ninth
23
Circuit found Thompson’s due process rights had been violated based on the prosecutor’s
24
use of “fundamentally inconsistent theories” at the two trials. Id. at 1056. During
25
Thompson’s trial, the prosecutor presented the testimony of two inmate informants who
26
provided the only direct evidence that Thompson had killed the victim, that the victim had
27
been raped, and that it was Thompson who had raped her. Id. These witnesses were not
28
called by the state at Leitch’s trial, which followed Thompson’s. Instead, the prosecutor
- 39 -
1
called defense witnesses whose testimony he had objected to at Thompson’s trial and
2
“relied heavily on their testimony to establish Leitch’s motive for the murder.” Id. As the
3
Ninth Circuit explained, the prosecutor “asserted as the truth before Thompson’s jury the
4
story he subsequently labeled absurd and incredible in Leitch’s trial.” Id. at 1057. “By
5
doing so, the prosecutor brought his conduct squarely within an area forbidden by the
6
Supreme Court—the knowing [ ] present[ation of] false testimony.’”16 Shaw v. Terhune,
7
353 F.3d 697, 703–05 (9th Cir. 2003), opinion amended and superseded on denial of
8
reh’g, 380 F.3d 473 (9th Cir. 2004) (quoting Thompson, 120 F.3d at 1058).
9
Speer does not allege that the prosecutor knowingly presented false evidence or
10
offered factually inconsistent evidence at the two trials. He accuses the prosecutor of
11
“manipulating evidence” but his allegation of misconduct is based solely on the
12
prosecutor’s closing arguments in the two trials. (See Doc. 13 at 76–78.) The case differs
13
from Thompson, where the prosecutor relied on contradictory evidence, some of which was
14
necessarily false, in the two trials. See Shaw, 353 F.3d at 703. In Speer’s case the evidence
15
supported either theory about which co-defendant was more responsible for the attack on
16
the Sotos. In the second trial, the prosecutor acknowledged that “Paul Speer is equally to
17
blame for what happened,” but argued that “he didn’t unduly influence Brian Womble.”
18
(RT 5/3/07.)17 She cited incidents in which Brian declined to carry out requests made by
19
Speer and argued, based on the ambiguous content of the phone conversations, that
20
Womble, not Speer, had come up with “Plan B.” (Id. at 48, 61–64, 67–72.)
21
This scenario more closely tracks Shaw than Thompson. In the former case, the
22
evidence suggested that one of two defendants, Shaw or Watts, assaulted the victim. Shaw,
23
353 F.3d at 703. In the first trial, the prosecutor argued that the evidence showed Shaw
24
committed the assault. Id. In the second trial, a different prosecutor argued, based on the
25
26
27
28
16
A prosecutor’s knowing use of false testimony to get a conviction violates due
process. Napue v. Illinois, 360 U.S. 264, 269 (1959).
17
State v. Womble, Maricopa County Superior Court Case No. CR2002-010926(B).
(See Doc. 23-1, Ex. 5.)
- 40 -
1
“same evidence,” that Watts committed the assault. Id. The court found no “constitutional
2
violation.” Id. at 704. The court explained that while a prosecutor is prohibited from
3
“knowingly presenting false evidence,” she is “not preclude[d] . . . from suggesting
4
inconsistent interpretations of ambiguous evidence.” Id.
5
Accordingly, counsel did not perform ineffectively by failing to file a motion to
6
vacate Speer’s conviction under Rule 24.2(a) based on the prosecutor’s comments at
7
Womble’s trial. There was not a reasonable probability that the motion would have been
8
granted.
9
First, as just discussed, there was no constitutional violation. Ariz. R. Crim. Proc.
10
24.2(a)(3). Next, even if the prosecutor’s argument at Womble’s trial constituted “newly
11
discovered material facts,” those facts would not probably have changed Speer’s judgment
12
or sentence. Ariz. R. Crim. Proc. 24.2(a)(2); 32.1(e). The cases Speer cites (Doc. 13 at 79–
13
80) are inapposite, as they involved the discovery of new facts that directly challenged the
14
evidence at trial. See, e.g., State v. Orantez, 183 Ariz. 218, 221–23, 902 P.2d 824, 827–29
15
(1995) (finding defendant entitled to new trial where evidence showed key witness lied
16
about her drug use and likely had drugs in her system at the time of the crime). In Speer’s
17
case, by contrast, there were no new facts affecting the key evidence against him—the
18
contents of the jail phone calls.
19
Because the underlying claim of ineffective assistance of trial counsel is meritless,
20
there was not a reasonable probability of a different outcome in the PCR proceedings if
21
PCR counsel had raised the claim. Because PCR counsel did not perform ineffectively,
22
Speer cannot establish cause for the claim’s default. See Atwood, 870 F.3d at 1059–60;
23
Clabourne. 745 F.3d at 377. Claim 7 is therefore denied as procedurally defaulted and
24
barred from federal review.
25
C.
26
Speer raises claims alleging prosecutorial misconduct (Claims 11 and 13) and
27
challenging the court’s voir dire with respect to the death penalty (Claim 12). The claims
28
are meritless.
Trial Error: Guilt Phase
- 41 -
1
Claim 11:
2
Speer alleges that his rights under the Fifth, Sixth, Eighth, and Fourteenth
3
Amendments were violated when the trial court denied his motions for a mistrial based on
4
prosecutorial misconduct. (Doc. 13 at 101–02.) This claim includes three instances of
5
alleged misconduct. In the first, Speer states that the prosecutor “openly and repeatedly
6
mocked trial counsel before the jury.” (Id. at 102.) In the second, Speer alleges that the
7
prosecutor, in questioning Det. Olson, “shifted the burden to the defense” by asking
8
whether defense counsel was aware of the jail’s phone call retention policy. (Id. at 103.)
9
Finally, Speer contends that a mistrial was required when the prosecutor, during her guilt-
10
stage closing argument, referred to the burden of proof in the “guilt phase” of trial. (Id.)
11
Speer raised these allegations on direct appeal.18 (Opening Br. at 21–23.) The
12
Arizona Supreme Court held that the trial court did not err in denying the motions for a
13
mistrial. Speer, 221 Ariz. at 458, 212 P.3d at 796. This decision was neither contrary to nor
14
an unreasonable application of clearly established federal law.
15
Speer’s first allegation of misconduct is based on the prosecutor’s redirect
16
examination of Det. Olson, in which she engaged in a reductio ad absurdum of defense
17
counsel’s cross-examination of Olson and the challenges counsel raised to the
18
thoroughness of the crime-scene investigation—asking, for instance, whether Olson
19
fingerprinted the Soto’s young children. (See RT 12/11/06 at 81–82, 89–92.) Defense
20
counsel moved for a mistrial, arguing that the prosecutor “creates a mockery of this case.”
21
(Id. at 90.) The prosecutor responded that counsel had “presented a bumbling cross-
22
examination where he repeatedly asked the same question 16 times,” that his line of
23
questioning was “ridiculous,” and that the “State was certainly entitled to counter” the
24
25
26
27
28
18
Respondents concede that Speer exhausted the second and third of these
allegations on direct appeal. (Doc. 16 at 49–51.) They argue the first allegation was not
exhausted. (Id. at 49.) Regardless of its procedural posture, the Court will consider the
claim on its merits. See 28 U.S.C. § 2254(b)(2) (allowing denial of unexhausted claims on
the merits); see also Lambrix v. Singletary, 520 U.S. 518, 524–25 (1997) (explaining that
the court may bypass the procedural default issue in the interest of judicial economy when
the merits are clear but the procedural default issues are not).
- 42 -
1
“aspersions” cast by counsel’s cross-examination. (Id. at 91–92.) The trial court denied the
2
motion for a mistrial. (Id. at 93.) On direct appeal, Speer “summarily allege[d]” this claim.
3
Speer, 221 Ariz. at 458, 212 P.3d at 796, n.6. The Arizona Supreme Court denied the claim,
4
finding there was no misconduct. Id.
5
The next incident of alleged misconduct occurred when the prosecutor asked Det.
6
Olson whether “to your knowledge does Mr. Storrs [defense counsel] know that jail calls
7
are destroyed after six months?” and “to your knowledge did Bob Storrs know in August
8
of 2002 that the jails calls only get kept for six months?” (RT 1/10/07 at 94, 96–97.) Trial
9
counsel moved for a mistrial, arguing that the prosecutor’s questions “actually shifted the
10
burden to the defense, because she was pointing out to the jury that the defendant knew
11
that these calls would be destroyed within six months.” (Id. at 113.) The court pointed out
12
that the prosecutor “didn’t say the defendant.” (Id.) Counsel responded that “the defense
13
or defense [sic] has no burden whatsoever, has no burden to come forward with evidence
14
and she’s shifting the burden to the defendant to adduce evidence” in violation of “his due
15
process right and his right to a fair trial.” (Id. at 113–14.)
16
Defense counsel contended that “mistrial is the only real remedy.” (Id. at 120.) The
17
trial court disagreed and denied the motion. (Id.) The court agreed, however, to instruct the
18
jury that the burden of proving guilt beyond a reasonable doubt never shifts away from the
19
State. (Id. at 120–21.)
20
21
The Arizona Supreme Court held that the trial judge did not err in denying a mistrial.
Speer, 221 Ariz. at 458, 212 P.3d at 796. The court explained that:
The prosecutor never suggested that the defense had the burden of proving
Speer’s innocence. Rather, the questioning appeared designed to rebut any
contention of bad faith on the part of the police, by suggesting that both the
State and the defense had a chance to preserve the nine calls but failed to do
so. In any event, any conceivable prejudice was cured by the instruction.
22
23
24
25
26
27
28
Id.
The final incident occurred during the guilt-phase closing argument, when the
prosecutor stated that “the defendant does not have—does not have to present any evidence
at all. The burden of proof during the guilt phase is all on the State. It never shifts to the
- 43 -
1
defendant.” (RT 1/17/07 at 111.) Defense counsel objected. (Id.) He argued that “you can’t
2
intimate that this trial is going to go on, and . . . in the next phase, perhaps the burden will
3
be different. But you can’t talk about any other phase other than the one that we’re in, and
4
so that denies my client a fair trial.” (Id. at 112.) The court denied counsel’s motion for a
5
mistrial, noting that the prosecutor’s statement was “technically correct” and finding no
6
prejudice because “we have spent countless time both in the voir dire and then in the
7
preliminary discussion we’ve had with each juror about the three phases. They have known
8
about it and been told about it. This is nothing new.” (Id. at 112–13.) The Arizona Supreme
9
Court agreed that no prejudice resulted from the prosecutor’s comment because “defense
10
counsel, the prosecutor, and the court itself had previously made plain to the jury that the
11
trial could involve three phases.” Speer, 221 Ariz. at 458, 212 P.3d at 796.
12
Analysis
13
The appropriate standard of federal habeas review of a claim of prosecutorial
14
misconduct is “the narrow one of due process, and not the broad exercise of supervisory
15
power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
16
DeChristoforo, 416 U.S. 637, 642 (1974)). A petitioner is not entitled to relief in the
17
absence of a due process violation even if the prosecutor’s comments were “undesirable or
18
even universally condemned.” Id. Therefore, to succeed on a claim of prosecutorial
19
misconduct, a petitioner must prove not only that the prosecutor’s remarks and other
20
conduct were improper but that they “so infected the trial with unfairness as to make the
21
resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643; see Parker v.
22
Matthews, 567 U.S. 37, 45 (2012); Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995)
23
(explaining that relief is limited to cases in which the petitioner can establish that
24
prosecutorial misconduct resulted in actual prejudice); see also Smith v. Phillips, 455 U.S.
25
209, 219 (1982) (“[T]he touchstone of due process analysis in cases of alleged
26
prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.”).
27
In determining if a defendant’s due process rights were violated, the court “must
28
consider the probable effect [of] the prosecutor’s [remarks] . . . on the jury’s ability to judge
- 44 -
1
the evidence fairly.” United States v. Young, 470 U.S. 1, 12 (1985). To make such an
2
assessment, the prosecutor’s remarks must be put into context. See Boyde v. California,
3
494 U.S. 370, 385 (1990); United States v. Robinson, 485 U.S. 25, 33–34 (1988); Williams
4
v. Borg, 139 F.3d 737, 745 (9th Cir. 1998). In Darden, for example, the Court assessed the
5
fairness of the trial by considering whether the prosecutor’s comments manipulated or
6
misstated the evidence, whether the trial court gave a curative instruction, whether the
7
comment was invited by the defense, whether defense counsel had an opportunity to rebut
8
it, and “[t]he weight of the evidence against petitioner.” 477 U.S. at 181–82; see Trillo v.
9
Biter, 769 F.3d 995, 1001 (9th Cir. 2014).
10
In the event a petitioner can establish a due process violation, to be found eligible
11
for relief he must also demonstrate that the violation resulted in a “substantial and
12
injurious” effect on the verdict under the standard set forth in Brecht v. Abrahamson, 507
13
U.S. 619, 637 (1993). Fry v. Pliler, 551 U.S. 112, 121–22 (2007); see Wood v. Ryan, 693
14
F.3d 1104, 1113 (9th Cir. 2012).
15
Courts have substantial latitude when considering prosecutorial misconduct claims
16
because “constitutional line drawing [in prosecutorial misconduct cases] is necessarily
17
imprecise.” Donnelly, 416 U.S. at 645; Matthews, 567 U.S. at 48 (explaining that the
18
“Darden standard is a very general one, leaving courts ‘more leeway. . . in reaching
19
outcomes in case-by-case determinations’”) (quoting Yarborough v. Alvarado, 541 U.S.
20
652, 664 (2004)).
21
The Arizona Supreme Court’s denial of relief on these claims does not satisfy §
22
2254(d)(1). None of the incidents cited by Speer approaches the level of a due process
23
violation. The prosecutor did not manipulate or misstate the evidence, the trial court gave
24
a curative instruction where necessary and instructed the jury that what the lawyers say
25
was not evidence (see, e.g., RT 12/5/06 at 14), the prosecutor’s questions to Det. Olson on
26
redirect were invited by defense counsel’s cross-examination, and the evidence against
27
Speer was strong. See Darden, 477 U.S. at 181–82; see also Williams, 139 F.3d at 745
28
(finding that prosecutor’s remarks maligning defense counsel did not infect the trial with
- 45 -
1
unfairness to such a degree that petitioner’s due process rights were violated); Johnson, 63
2
F.3d at 930 (rejecting misconduct claim based on an alleged misstatement of the
3
prosecutor’s burden of proof where the statement was appropriate in context and where the
4
trial court correctly instructed the jury on the state’s burden). For the same reasons, Speer
5
has failed to show that the prosecutor’s comments had a substantial and injurious effect on
6
the verdict. See Brecht, 507 U.S. at 637.
7
The Arizona Supreme Court’s denial of this claim was not “so lacking in
8
justification that there was an error well understood and comprehended in existing law
9
beyond any possibility for fair-minded disagreement.” See Richter, 562 U.S. at 103. Claim
10
11 is denied.
11
Claim 12:
12
Speer alleges that he was deprived of his right to a fair and impartial jury because
13
“voir dire favored those who leaned toward automatic death penalty.” (Doc. 13 at 104.)
14
Speer used his peremptory challenges to dismiss six jurors with a pro-death-penalty bias,
15
but a seventh, Juror 29, served on the jury. Speer argues that his due process rights were
16
violated by the trial court’s failure to strike Juror 29 for cause. Id. He also alleges that his
17
rights were violated when the trial court improperly struck for cause “jurors who leaned
18
against the death penalty but who would have followed the law.” (Doc. 13 at 109.) The
19
Arizona Supreme Court denied these claims on direct appeal. Speer, 221 Ariz. at 454–56,
20
212 P.3d at 792–94.
21
1.
22
Defense counsel moved to strike Juror 29 for cause “on the basis that he did indicate
23
that the death penalty should be imposed in all cases when the State has proven beyond a
24
reasonable doubt that the person killed another with premeditation.” (RT 11/13/06 at 165.)
25
This was a reference to an answer on the juror questionnaire, which asked the potential
26
juror to select the position that best matched their view on the death penalty. (See id. at
27
166.) The trial court denied the motion, finding that Juror 29’s “views do not substantially
28
impair the performance of his duties.” (Id.) The court explained that the juror
Failure to excuse pro-death-penalty juror
- 46 -
1
“acknowledged changing his views on the death penalty from when he was younger, where
2
he originally believed an eye for an eye, meaning you take a life you forfeit a life,” whereas
3
he now believed in “weigh[ing] all factors before determining the [sic] death is the
4
punishment.” (Id. at 167.) The court continued, noting that Juror 29 “not only backed off,
5
he then urged that his views were that extenuating circumstances could mitigate against the
6
death penalty,” circumstances including the defendant’s “mental health history,” “difficult
7
upbringing or substance abuse.” (Id.) The court concluded that the juror was “open-minded,
8
and he is willing to listen to all the facts before deciding whether to impose death.” (Id.)
9
The court’s observations accurately described Juror 29’s voir dire answers. (See id. at 148–
10
57.)
11
The Arizona Supreme Court found that the trial court did not abuse its discretion by
12
refusing to strike Juror 29 for cause. The court first cited Morgan v. Illinois, 504 U.S. 719,
13
729 (1992), for the proposition that a juror who will automatically vote for the death penalty
14
without considering mitigating circumstances does not meet the threshold requirement of
15
impartiality. Speer, 221 Ariz. at 455, 212 P.3d at 793. The court then explained that Juror
16
29 was the only pro-death-penalty-leaning juror identified by Speer who remained on the
17
jury after the defense used its peremptory strikes,19 so it was only his presence on the jury
18
that the court needed to consider.20 Id. Finally, the court examined the juror’s answers to
19
questions about the death penalty:
20
21
22
23
24
25
Juror 29 selected the following statement in the jury questionnaire as most
closely representing his views: “I feel the death penalty should be imposed
in all cases as long as the State proves beyond a reasonable doubt that a
person killed another human being with premeditation.” He underlined
“beyond a reasonable doubt.” In the same questionnaire, the juror wrote that
“when I was younger, I felt an eye for an eye,” but now “I want to know why
before I decide.” During voir dire, he agreed that he “might not . . . vote to
impose death” if a person “had a pretty tough upbringing” or “mental health
problems,” stating, “I need to hear everything before I decide.” Given Juror
26
19
27
28
The defense struck Jurors 5, 19, 55, 90, 242, and 400. (See Doc. 13 at 107–09.)
Here the court cited State v. Cruz, 218 Ariz. 149, 158, 181 P.3d 196, 205 (2008).
Cruz, in turn, relied on the United States Supreme Court’s holding in United States v.
Martinez-Salazar, 528 U.S. 304, 313 (2000).
20
- 47 -
1
2
29’s statements, the trial court’s refusal to strike him for cause was not an
abuse of discretion.
3
Speer, 221 Ariz. at 455, 212 P.3d at 793. This ruling was neither contrary to nor an
4
unreasonable application of clearly established federal law.
5
In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme Court “set forth the
6
rule for juror disqualification in capital cases.” White v. Wheeler, 577 U.S. 73, 77 (2015).
7
Capital defendants are entitled to a jury not “uncommonly willing to condemn a man to
8
die.” Witherspoon, 391 U.S. at 521. The Supreme Court “with equal clarity has
9
acknowledged the State’s ‘strong interest in having jurors who are able to apply capital
10
punishment within the framework state law prescribes.’” Wheeler, 577 U.S. at 77 (quoting
11
Uttecht v. Brown, 551 U.S. 1, 9 (2007)). A juror may be excused for cause only if he or she
12
is “substantially impaired in his or her ability to impose the death penalty under the state-
13
law framework.” Uttecht, 551 U.S. at 9 (citing Wainwright v. Witt, 469 U.S. 412, 424
14
(1985)). A juror may be excused for cause “where the trial judge is left with the definite
15
impression that a prospective juror would be unable to faithfully and impartially apply the
16
law.” Witt, 469 U.S. at 425–26.
17
“A defendant has a constitutional due process right to remove for cause a juror who
18
will automatically vote for the death penalty.” United States v. Mitchell, 502 F.3d 931, 954
19
(9th Cir. 2007) (citing Morgan, 504 U.S. 719). However, the failure to strike a biased juror
20
does not violate a defendant’s rights to an impartial jury and due process when the juror
21
did not sit on the jury, even if the defendant had to use a peremptory challenge to strike
22
him. Id. “So long as the jury that sits is impartial, . . . the fact that the defendant had to use
23
a peremptory challenge to achieve that result does not mean the Sixth Amendment was
24
violated.” United States v. Martinez-Salazar, 528 U.S. 304, 313 (2000) (quoting Ross v.
25
Oklahoma, 487 U.S. 81, 88 (1988)).
26
The Arizona Supreme Court reasonably applied Martinez-Salazar and
27
Witherspoon/Witt in rejecting Speer’s challenge to the trial court’s refusal to remove Juror
28
29 for cause.
- 48 -
1
A state court’s determination that a juror’s views would substantially impair the
2
discharge of his duties is a factual finding entitled to a presumption of correctness on
3
federal habeas review. Witt, 469 U.S. at 426 (“[D]eference must be paid to the trial judge
4
who sees and hears the juror.”); see Uttecht, 551 U.S. at 9 (“Deference to the trial court is
5
appropriate because it is in a position to assess the demeanor of the venire, and of the
6
individuals who compose it, a factor of critica487 U.S. importance in assessing the attitude
7
and qualifications of potential jurors.”). A trial court’s “finding may be upheld even in the
8
absence of clear statements from the juror that he or she is impaired. . . .” Uttecht, 551 U.S.
9
at 7. Finally, AEDPA requires an additional, “independent, high standard” of deference.
10
Id. at 10; see Wheeler, 577 U.S. at 78.
11
In Uttecht the Court clarified that “[t]he need to defer to the trial court’s ability to
12
perceive jurors’ demeanor does not foreclose the possibility that a reviewing court may
13
reverse the trial court’s decision where the record discloses no basis for a finding of
14
substantial impairment.” 551 U.S. at 20. However, where there has been “lengthy
15
questioning of a prospective juror and the trial court has supervised a diligent and
16
thoughtful voir dire, the trial court has broad discretion.” Id.; see Wheeler, 577 U.S. at 79.
17
In Speer’s case there was a lengthy and diligent voir dire process, which included
18
the prescreening of panels of potential jurors followed by the completion of a detailed
19
questionnaire. (See, e.g., RT 11/6/06 at 8, 13, 33.) The attorneys and the court then
20
examined each of the remaining potential jurors, including Juror 29, individually, a process
21
that consumed several days. (See RT 11/9/06–11/20/06.) The questioning of Juror 29 alone
22
occupied more than 20 transcript pages. (RT 11/13/06 at 142–165.) Finally, the remaining
23
40 members of the final venire panel were questioned by the court and the parties, after
24
which a jury of 16, consisting of 12 jurors and 4 alternates, was selected. (See RT 12/4/06
25
at 3, 56, 76.)
26
Nothing in this record undermines the presumption of correctness attaching to the
27
trial court’s determination that Juror 29 was not substantially impaired in his ability to carry
28
out his duties impartially. His answers revealed that he would not vote for death without
- 49 -
1
considering the mitigating evidence. (RT 11/13/06 at 150–55.) To the extent any ambiguity
2
remained in Juror 29’s attitude about the death penalty after his questioning by the parties,
3
the trial court was “entitled to resolve it in favor of the State.” Uttecht, 551 U.S. at 7
4
(quoting Witt, 469 U.S. at 434).
5
Applying the additional level of deference required by AEDPA, the Arizona
6
Supreme Court’s decision to affirm the trial court’s refusal to excuse Juror 29 for cause
7
was not “so lacking in justification that there was an error well understood and
8
comprehended in existing law beyond any possibility for fairminded disagreement.”
9
Richter, 562 U.S. at 103; see Wheeler, 577 U.S. at 78–79.
10
2.
11
Speer alleges that his rights were violated when the trial court “excused for cause
12
jurors who leaned against the death penalty but who would have followed the law.” (Doc.
13
13 at 109.) The Arizona Supreme Court, citing Witherspoon and Witt, denied the claim on
14
direct appeal. Speer, 221 Ariz. at 455–56, 212 P.3d at 793–94. This decision was neither
15
contrary to nor an unreasonable application of clearly established federal law.
Excusal of anti-death-penalty jurors
16
A prospective juror in a capital case may be excluded for anti-death-penalty views
17
only if he indicates he is “irrevocably committed, before the trial has begun, to vote against
18
the penalty of death regardless of the facts and circumstances that might emerge in the
19
course of the proceedings.” Witherspoon, 391 U.S. at 522 n.21. The exclusion of jurors for
20
cause “simply because they voiced general objections to the death penalty or expressed
21
conscientious or religious scruples against its infliction” violates the federal
22
constitution. Id. Again, a juror cannot be dismissed for cause unless his views “would
23
prevent or substantially impair the performance of his duties as a juror in accordance with
24
his instructions and his oath.” Adams v. Texas, 448 U.S. 38, 45 (1980). “The State may
25
insist, however, that jurors will consider and decide the facts impartially and
26
conscientiously apply the law as charged by the court.” Id. “[A] juror who in no case would
27
vote for capital punishment, regardless of his or her instructions, is not an impartial juror
28
and must be removed for cause.” Morgan, 504 U.S. at 728.
- 50 -
1
Speer argues that the court wrongly excused Jurors 136, 250, and 427 for their
2
“hesitation about imposing the death penalty.” (Doc. 13 at 111.) He argues that each juror
3
indicated he or she could follow the law, and that they could have been “rehabilitated” with
4
additional questioning. (Id.) This argument is unpersuasive.
5
6
The trial court undertook an extensive voir dire with respect to these potential jurors,
with the parties and the judge questioning the individual jurors.
7
Juror 136 stated that she was not sure she would “have the ability” to sentence
8
someone to death. (RT 11/15/06 at 6.) She then admitted that she would hold the State to
9
a higher burden of proof than beyond a reasonable doubt. (Id.) She explained that she had
10
difficulty with “the sentencing part” and did not know if she “would be able to say, let’s
11
take his life.” (Id. at 13.) She elaborated that “can I say that he is guilty and his life should
12
be taken? No, I can’t do that.” (Id.)
13
The court granted the prosecutor’s motion to strike Juror 136 for cause. (Id. at 20–
14
21.) The court noted that the juror “began by saying she doesn’t know if she could impose
15
the death penalty given her conscience.” (Id. at 21.) She also stated she would require the
16
State to prove guilt beyond a “shadow of a doubt,” even though she knew that was a higher
17
standard than the law required. (Id. at 21–22.) Finally, the judge explained, Juror 136 again
18
stated “she doesn’t know if she could vote to take another person’s life” and indicated “this
19
isn’t a case where she feels that she could impose the death penalty.” (Id. at 22.)
20
21
22
23
24
25
26
27
28
The Arizona Supreme Court found that the trial court did not abuse its discretion by
striking the juror:
On voir dire, Juror 136 said “I’m not quite sure . . . if I will be able to do a
death sentence.” The juror then said that “it’s not that I’m against it, it’s just
that I don’t know if I would be able to put someone else’s life in my hands
beyond a reasonable doubt.” On examination by defense counsel, the juror
reiterated that “my problem . . . is . . . beyond a shadow of a doubt. Okay.
Can you prove to me beyond a shadow of a doubt enough for me to accept
that this crime happened?” The juror then stated, “I could listen to the
evidence, but can I say that he is guilty and his life should be taken? No, I
can’t do that.” Given these statements, the trial court did not abuse its
discretion in granting the State’s motion to strike.
- 51 -
1
2
Speer, 221 Ariz. at 455, 212 P.3d at 793. This was a reasonable application of clearly
established federal law.
3
“A juror’s voir dire responses that are ambiguous or reveal considerable confusion
4
may demonstrate substantial impairment.” United States v. Fell, 531 F.3d 197, 215 (2d Cir.
5
2008) (“[A juror’s] assurances that he would consider imposing the death penalty and
6
would follow the law do not overcome the reasonable inference from his other statements
7
that in fact he would be substantially impaired in this case. . . .”) (quoting Uttrecht, 551
8
U.S. at 18); see United States v. Allen, 605 F.3d 461, 466 (7th Cir. 2010) (“Because
9
appellate judges are absent from voir dire, when a prospective juror fails to express herself
10
‘carefully or even consistently . . . it is [the trial] judge who is best situated to determine
11
competency to serve impartially.’”) (quoting Patton v. Yount, 467 U.S. 1025, 1039 (1984)).
12
Juror 136’s statements were not always consistent, or even, at times, coherent, but she was
13
14
15
16
consistent in indicating that her views would make it difficult or impossible to vote for a
death sentence in this case. The trial court “properly considered all of [the juror’s]
responses in the context in which they were given and did not err in concluding that [her]
views would significantly interfere with [her] duties as juror.” Fell, 531 F.3d at 215.
17
Juror 250 stated that it would be “very hard” for her to vote for the death penalty
18
and that it would have to be an “extreme case.” (RT 11/20/06 at 84.) When questioned by
19
counsel she repeated that “possibly” she would be unable to vote for the death penalty. (Id.
20
21
22
at 91, 92, 94.) She stated again that she would prefer not to make the decision and would
be uncomfortable doing so, and that the death penalty was appropriate only in the case of
a serial killer. (Id. at 88–89, 90.) When asked by the judge for a definitive answer as to
23
whether she could “follow the instructions of law as given and impose the death penalty
24
and not vote automatically against it,” the juror responded “I guess I’d have to say I don’t
25
think I can vote for the death penalty.” (Id. at 97.) Based on that answer the court found
26
the juror’s ability to perform her duties was substantially impaired and granted the State’s
27
28
motion to strike her. (Id. at 101–02.) The Arizona Supreme Court affirmed, Speer, 221
Ariz. at 456, 212 P.3d at 794. This was a reasonable application of Morgan, 504 U.S. at
- 52 -
1
728, which held that jurors who would in no case vote for the death penalty must be
2
removed for cause.
3
Finally, Juror 427 stated that although she was not opposed to the death penalty in
4
“horrible cases,” she was “not positive [she] can make a decision that could lead to the
5
death sentence of a person.” (RT 11/30/06 at 66.) She did not know if she was “capable of
6
it.” (Id.) In responding to questions from defense counsel, the juror agreed she could be
7
fair and impartial in hearing and weighing the evidence and could follow the judge’s
8
instructions. (Id. at 67.) Subsequently, however, in responding to questions from the
9
prosecutor, the juror admitted that her “ability to be fair and impartial” would be
10
“substantially impaired by . . . not knowing whether you could actually vote for the death
11
penalty or not.” (Id. at 72.) Finally, when pressed by the judge for a definitive yes or no
12
answer, the juror acknowledged that her “performance as a juror” would be “impaired” by
13
the death penalty being an issue in the case. (Id. at 74.) The court granted the State’s
14
motion to strike the juror. (Id. at 80.)
15
16
17
18
19
20
21
22
23
24
The Arizona Supreme Court found that the trial court did not abuse its discretion,
explaining:
Juror 427 initially indicated that, although uncomfortable with the death
penalty, she would follow the judge’s instructions. However, the juror later
stated, “I don’t know that I’m capable of it.” On further questioning by the
State, the juror responded affirmatively to the question of whether “your
ability to be fair and impartial is substantially impaired by your not knowing
whether you could actually vote for the death penalty.” The court later asked
the same question, and the juror responded, “From where I sit right now, I
believe it could be an impairment. I believe the fact that I don’t wish to be
responsible for that may sway me.” Given these statements, the court did not
abuse its discretion in striking the juror.
Speer, 221 Ariz. at 456, 212 P.3d at 794.
25
This was a reasonable application of Witt. Although at one point she indicated she
26
could follow the court’s instructions, ultimately Juror 427 admitted that her ability to serve
27
as a fair and impartial juror was impaired. See Uttrecht, 551 U.S. at 18; Morales v. Mitchell,
28
507 F.3d 916, 941 (6th Cir. 2007) (“[I]solated statements indicating an ability to impose
- 53 -
1
the death penalty do not suffice to preclude the prosecution from striking for cause a juror
2
whose responses, taken together, indicate a lack of such ability or a failure to comprehend
3
the responsibilities of a juror.”).
4
Applying the additional level of deference required by AEDPA, the Arizona
5
Supreme Court’s decision to affirm the trial court’s excusal of Jurors 136, 250, and 427 for
6
cause was not “so lacking in justification that there was an error well understood and
7
comprehended in existing law beyond any possibility for fairminded disagreement.”
8
Richter, 562 U.S. at 103; see Wheeler, 577 U.S. at 78–79. Claim 12 is denied.
9
Claim 13:
10
Speer alleges that “prosecutorial misconduct pervaded all phases” of his trial. (Doc.
11
13 at 113.) In the first of three subclaims, Speer alleged misconduct based on the State’s
12
non-compliance with a discovery request concerning the recorded phone calls. As set forth
13
above, the Court denied the claim as procedurally defaulted and barred from federal review.
14
Speer acknowledges that he likewise failed to raise in state court the remaining allegations
15
of guilt- and penalty-phase misconduct. (Doc. 13 at 119, 127.) He argues that the default
16
of the claims is excused by the ineffective assistance of appellate and PCR counsel. (Id.)
17
Again, ineffective assistance of appellate counsel may be used as cause to excuse a
18
procedural default only where the particular ineffective assistance allegation was first
19
exhausted in state court as an independent constitutional claim. See Carpenter, 529 U.S. at
20
453; Carrier, 477 U.S. at 489–90. Speer did not raise such a claim of ineffective assistance
21
of appellate counsel. Under Martinez the ineffective assistance of PCR counsel can excuse
22
the default only of claims of ineffective assistance of trial counsel. See Martinez (Ernesto),
23
926 F.3d at 1225; Pizzuto, 783 F.3d at 1177. Accordingly, the remaining allegations in
24
Claim 13 are also defaulted and barred from federal review.
25
D.
26
Speer alleges that counsel performed ineffectively in their presentation of mitigating
27
evidence, by failing to challenge prosecutor’s misconduct, and by failing to challenge the
28
instructions provided by the court when the jury deadlocked (Claim 14). He also alleges
Ineffective Assistance of Counsel: Sentencing
- 54 -
1
that counsel performed ineffectively by stipulating to aggravating factors, by admitting
2
prior convictions, and by allowing two expert reports to be disseminated to the State
3
(Claims 15, 16, and 17). Finally, he alleges that counsel performed ineffectively by failing
4
to effectively impeach the State’s mental health expert (Claim 19).
5
Claim 14:
6
Claim 14 consists of one exhausted and four unexhausted subclaims. In the
7
exhausted subclaim, Speer alleges that counsel performed ineffectively during the penalty
8
phase of his trial by failing to investigate and present readily available mitigating evidence,
9
specifically the testimony of lay witnesses who would have corroborated Speer’s claims
10
that he was physically and sexually abused, that his family had a history of addiction and
11
mental illness, that he experienced substance abuse, and that he did not receive the
12
institutional help he needed. (Doc. 13 at 140.) The PCR court denied this claim on the
13
merits. (ME 5/20/15 at 17–20.)
14
Speer also alleges that counsel performed ineffectively by failing to present
15
“effective” expert testimony about Speer’s abusive background, trauma, and
16
“neurocognitive deficits”; to present evidence of co-defendant Brian Womble’s mental
17
illness; to respond to prosecutorial misconduct; and to raise appropriate objections when
18
the jury “deadlocked” during the penalty phase (Doc. 13 at 150–56.) He did not raise these
19
claims in state court. He argues their default is excused under Martinez by the ineffective
20
assistance of PCR counsel. (Id.)
21
1.
22
Speer argues that counsel performed ineffectively by failing to offer additional
23
Exhausted claim: failure to present additional lay mitigating evidence
mitigating evidence from lay witnesses. (Doc. 13 at 140–150.)
24
Additional background
25
The penalty phase of Speer’s trial was held over 14 days in February and March of
26
2007. Counsel presented mitigating testimony from three mental health experts: Dr. Paul
27
Miller, Dr. Susan Parrish, and Dr. Pablo Stewart. Counsel also called three family
28
- 55 -
1
members, Speer’s half-brother Chris; his stepfather, William Womble; and his cousin Carla
2
Lujan.
3
4
a.
Expert witnesses
i.
Dr. Miller
5
Dr. Paul Miller, a psychology professor with expertise in child development, was
6
retained by the defense to “write a developmental report that took a look at all of the risk
7
factors that [Speer] experienced, starting before birth” to age 13 or 14. (RT 2/6/07 at 27,
8
35, 37.) Dr. Miller met with Speer twice and reviewed records provided by counsel and
9
mitigation specialist Dave Wilcox. (Id. at 35.) The documents included mental health
10
records, school records, probation officer and Child Protective Services (“CPS”) reports,
11
and police reports. (Id. at 36–37.) Dr. Miller’s 25-page report was admitted as a trial
12
exhibit. (See Doc. 23-10, Ex. 53.)
13
Dr. Miller testified that a risk factor is a “factor that impedes or otherwise interferes
14
with the normal growth and development of a child.” (RT 2/6/07 at 46.) He explained that
15
such factors, “pile[d] on top of one another,” as they were in Speer’s case, have a
16
multiplying effect, so that “the worse it gets, the worse it gets.” (Id. at 40, 46.)
17
Dr. Miller testified about these risk factors using a Power Point presentation which
18
also documented the research supporting the factors. (Id. at 45.) The factors included
19
substance abuse in the home and natal exposure to heroin and methadone (RT 2/6/07 at
20
47–55, 72–82); maternal depression and unpredictable behavior (id. at 55–63);
21
abandonment by Speer’s biological father (id. at 63–65); parental history of substance
22
abuse (id. at 63–65; RT 2/7/07 at 30–34); abusive treatment by his stepfather Bill Womble,
23
including beatings with fists and belts (RT 2/6/07 at 65–67); the death of Speer’s
24
grandfather (id. at 67–68); inter-parental conflict, including physical violence, causing
25
insecurity, fear, depression, and disruptive behavior (id. at 70–71); negative parental
26
practices, including neglect, favoritism, harsh and inconsistent discipline, and
27
scapegoating, which led to low self-esteem and an increased risk for aggressive,
28
oppositional, and anti-social behavior (id. at 89–134); sexual abuse (id. at 135–42; RT
- 56 -
1
2/7/07, a.m., at 4–9); childhood depression (RT 2/7/07 at 10–17); and Speer’s own
2
substance abuse (id. at 33–38).
3
Dr. Miller explained that natal exposure to methadone and heroin can be responsible
4
for attention deficit hyperactivity disorder (ADHD) and difficulties in impulse control and
5
self-regulation. (RT 2/6/07 at 75.) The caregiving environment in Speer’s childhood home
6
was also compromised by the parents’ drug use. Speer needed more care and attention due
7
to his in utero exposure to drugs but the continuing drug use by his parents prevented that
8
from happening. A child in Speer’s position cannot make up the developmental delays he
9
experienced. (Id. at 75–76.) Children born to heroin-dependent parents also suffer from
10
lower IQs, motor skills, visual skills, and reading and arithmetic skills. (Id. at 86.)
11
With respect to sexual abuse, Dr. Miller testified that Speer reported being sexually
12
molested by a paternal aunt at age five or six. (RT 2/6/07 at 135–36.) Speer also reported
13
that when he was 12 or 13 a maternal uncle “involve[ed] him in sexual activities with other
14
men in order to obtain money for drug use.” (Id. at 13.) He would find “older men” and
15
have Speer “dress up and engage in fondling and other sexual activity.” (RT 2/7/07 at 6.)
16
He used emotional manipulation to persuade Speer to engage in these activities.
17
Dr. Miller testified that sexually abused children are at risk for drug use, depression,
18
anxiety, conduct disorder, and low self-esteem. (RT 2/6/07 at 139; RT 2/7/07 at 9.) The
19
same uncle who “pimped him out” also used Speer to commit burglaries. Because of his
20
small size, Speer was able to enter homes by crawling through dog doors. (RT 2/7/07, a.m.,
21
at 5.)
22
In detailing the parental neglect and rejection Speer experienced, Dr. Miller noted
23
that Speer’s mother sent him to stay with his grandmother every weekend. (RT 2/6/07 at
24
127.) She wanted the court to remove Speer from her custody. (Id. at 128.) When Speer
25
was 13 she threw him out of the house, gave him his birth certificate, threatened him with
26
a baseball bat, and told him not to return. (Id. at 129–30.) She was abusing heroin and
27
hallucinating at the time. (Id. at 130.) Dr. Miller also noted reports that the house was a
28
- 57 -
1
mess and that Speer and Chris had to steal clothes and shoes because his parents would not
2
buy them new ones. (Id. at 131.)
3
Dr. Miller explained that among older adolescents, parental rejection may lead to
4
“association with deviant peers,” which in turn can lead to substance abuse. (Id. at 133–
5
34.)
6
In describing Speer’s childhood depression, Dr. Miller noted that Speer reported
7
suicidal thoughts as early as age 11 and had been diagnosed with depression at ages 10 and
8
11 by Drs. Martig and Cabanski.21 (RT 2/7/07, a.m., at 10.) Dr. Martig opined that Speer’s
9
depressive features began in early childhood. (Id. at 12.) In 1990 a school psychologist
10
reported that Speer, who was living with his grandparents, was sad, fearful, and angry, and
11
felt rejected, unloved, and not a part of the family. (Id. at 12–13.) The psychologist
12
diagnosed Speer with clinical levels of depression and anxiety. (Id. at 13.) Dr. Miller
13
testified that Speer’s acting out and “disruptive conduct disorder behavior is his way of
14
blocking out or defending against the feelings that are associated with depression, the
15
shame, the guilt, the anger.” (Id. at 14.) There was a link between Speer’s depressive
16
features and his behavioral problems in school. (Id. at 16.)
17
Dr. Miller also testified that Speer’s aggressive and violent behavior was learned
18
through watching the relationship between his parents and their use of threats and force
19
against the children. (Id. at 21.) Speer “learn[ed] to fight back.” (Id.) He engaged in
20
aggressive behaviors and had problems “regulating his emotions starting very early in age
21
and continuing throughout because he’s dealing with all these really large messages of
22
rejection and displacements from the family and these criticisms that he gets.” (Id. at 23.)
23
The message he got from his family was “the more you get upset, the more aggressive you
24
are.” (Id. at 24.)
25
26
27
28
21
Dr. Roger Martig and Dr. Stan Cabanski. Dr. Martig diagnosed Speer with
depression, a conduct disorder, symptoms of hyperactivity, and narcissistic personality
traits. (See Doc. 23-10, Ex. 49 at 3–4.) Dr. Cabanski diagnosed Speer as emotionally
handicapped with ADHD and recommended probationary supervision and special
education. (Id. at 4.)
- 58 -
1
Dr. Miller described the characteristics of a conduct disorder diagnosis and
2
explained that “intervention programs [can be] effective in reducing conduct disorder
3
behavior.” (Id. at 28.) Dr. Miller noted that Speer’s behavior changed for the better while
4
undergoing intensive residential placement. (Id. at 29.)
5
Dr. Miller then recounted Speer’s substance abuse history, testifying that Speer
6
reported his mother “shooting him up” at age 12; he overdosed on crystal
7
methamphetamine at that same age. (Id. at 31, 35.) He was constantly exposed to the drug
8
use of his parents and other adults. (Id. at 30–36.) At age 16 he asked for “real drug
9
treatment.” (Id. at 35.)
10
The next risk factors Dr. Miller testified about were “academic, social, and
11
behavioral problems.” (Id. at 39.) Dr. Miller discussed Speer’s ADHD and its effect on his
12
academic performance and behavior. (Id. at 39–44.) He noted that Speer was treated with
13
Ritalin but never received the necessary support from his parents to succeed academically.
14
(Id. at 42–44.) Failing in school, Speer felt “hopeless, helpless, and worthless.” (Id. at 48.)
15
To become accepted he became a “class clown,” getting into trouble with teachers but
16
“gain[ing] recognition . . . in a negative way.” (Id. at 49.) Eventually, however, he
17
antagonized peers with his aggressive behavior. (Id. at 59.) At this point he became
18
susceptible to “deviant peer associations” and these associations “progress[ed] toward
19
delinquent behavior.” (Id. at 60–61.) Ultimately Speer was placed in the juvenile prison
20
system, where he joined a gang for protection against older and larger inmates. (Id. at 64.)
21
Finally, Dr. Miller testified about Speer’s successes or “pro-social choices.” (Id. at
22
68.) At age eight he lived with his cousin Carla Lujan. In that “well-organized” household,
23
Speer was “great” and “wonderful,” participating in family Bible studies, acting politely,
24
and not getting into trouble. (Id. at 68–69.) Carla also noted that Speer took care of his
25
siblings when they needed something to eat or drink. (Id. at 69.)
26
Dr. Miller testified that Carla’s mother, Sue, regularly attended therapy sessions
27
with Speer, unlike his mother and stepfather, who attended few sessions and did not
28
participate effectively. (Id. at 69–70.) Speer appeared to be “very bright” and “capable of
- 59 -
1
learning new behaviors.” (Id.) The probation officer who was working with Speer’s family
2
described Speer’s attitude as positive. (Id. at 70.) Another probation officer reported that
3
at age 11 Speer was “starting to show improvement in school daily checks.” (Id.) The
4
assistant principal noted that Speer “was not seen as violent, but his behavior reflect[ed]
5
attention seeking,” which was “very consistent with a child who doesn’t feel he’s loved,
6
feels he’s rejected, . . . wants some approval from some adult.” (Id.)
7
Speer responded positively to Juvenile Intensive Probation, even without the
8
participation of his parents (Id. at 71–72.) His attitude was good, he took probation
9
seriously and enjoyed visits from the probation officer, and he submitted clean urinalyses.
10
(Id. at 71–73.) His attendance was good and “he[] made good strides in changing his
11
behavior, progressing toward self-control and self-esteem.” (Id. at 73.)
12
In 1991, at age 12, Speer was placed in a residential facility, Wayland. (RT 2/7/07,
13
p.m., at 6.) At one point he wrote a letter asking to remain in the program. (Id.) At Wayland
14
he showed “positive changes in his behavior in terms of controlling his impulses, and
15
reduced oppositional behaviors and aggressive behaviors.” (Id. at 7.)
16
Dr. Miller testified that Speer was released from the Wayland program prematurely.
17
(Id. at 7–8.) He did “generally well” when he returned home but his conduct quickly
18
regressed. (Id. at 8.) He began to engage in disruptive behavior, property damage, and
19
substance abuse. (Id.) Dr. Miller explained that a much longer period of time in the program
20
was required to change the behavior of Speer’s parents and the “dynamics or the common
21
disorder” in the family. (Id. at 8–9.)
22
Speer was next placed in the Adobe Mountain juvenile facility where he again made
23
“deviant peer associations” and became “more ingrained into delinquent behaviors,”
24
learning “what to do in terms of being delinquent, in terms of theft and car stealing, and
25
stuff like that.” (Id. at 9.) Dr. Miller explained that “we see from there on out a pattern of
26
continued delinquent behaviors, alternative placements through corrections, and . . . just
27
the progression into more and more delinquent behaviors.” (Id.)
28
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1
Dr. Miller testified that a structured, comprehensive residential program like
2
Wayland can be “effective in reducing recidivism or reducing the aggressive behavior
3
conduct disorder.” (Id. at 14–15.) He concluded that he was not surprised that Speer
4
continued his delinquent behavior as an adult, given the risk factors Speer was exposed to
5
and the failure to provide him with an adequate treatment program. (Id. at 16–17.)
6
ii.
Dr. Parrish
7
Dr. Susan Parrish, a neuropsychologist, evaluated Speer’s neurocognitive
8
functioning and testified on his behalf. (RT 2/27/07.) Dr. Parrish administered the
9
Halstead-Reitan Neuropsychological Test Battery, an instrument on which she is a leading
10
expert, the Wechsler Adult Intelligence Scale, and the Wide Range Achievement Test-3.
11
(See 3/1/07 at 21–22.) She also reviewed previous evaluations of Speer, dating back to
12
when he was 11 years old, and other records, including the indictment, police reports,
13
correctional health records, school records, and CPS records. (RT 2/27/01 at 129–31.)
14
Dr. Parrish testified at length about Speer’s performance on the Halstead-Reitan
15
test. (Id. at 126–55.) She concluded that Speer’s score placed him “at the very upper end
16
of the range for moderate impairment,” one point away from severe impairment. (Id. at
17
155.) She opined that the cause of Speer’s impairment was his drug use or his in utero
18
exposure to drugs. (RT 3/1/07 at 51–52.)
19
Dr. Parrish testified that Speer’s IQ had been tested on eight prior occasions, with
20
full-scale scores ranging from 77 to 92. (RT 3/8/07 at 12–16.) Dr. Parrish measured Speer’s
21
IQ as 84. (RT 3/1/07 at 30.)
22
Because experts who had evaluated Speer earlier in the case—Drs. Jack Potts and
23
John Toma—had opined that he malingered during tests for competency and IQ, Dr.
24
Parrish re-tested Speer to include a malingering index and found that the test results were
25
valid. (RT 3/19/07 at 37–38.)
26
Dr. Parrish testified that while she did not perform a clinical interview of Speer, and
27
therefore could not diagnose him, based on her review of the data she “thought a diagnosis
28
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1
of posttraumatic stress disorder should be explored.” (RT 3/1/07 at 52.) She noted Speer’s
2
history of family dysfunction, physical abuse, and sexual abuse. (Id. at 53.)
3
Dr. Parrish testified that Speer’s neurological impairment “affects all areas of
4
performance” and behavior. (Id. at 54.) His impulsivity, difficulty following rules, and
5
difficulty maintaining attention were consistent with a diagnosis of neurological
6
impairment. (Id.) Dr. Parrish noted that Speer had been diagnosed with conduct disorder,
7
meaning that his misconduct was a choice, but she felt that his behavior and acting out
8
were the product of neurological impairment and depression. (Id. at 55–56.) She agreed
9
with a school psychologist, Robin Storm, who had opined that Speer suffered from severe
10
emotional impairment rather than a conduct disorder. (Id. at 56–60.)
11
Dr. Parrish testified that Speer’s history of legal problems and aggressive,
12
oppositional behaviors were better accounted for by a diagnosis of PTSD as opposed to
13
antisocial personality disorder. (RT 3/8/07 at 23.) Dr. Parrish outlined the facts supporting
14
each of the criteria for a diagnosis of PTSD, including traumatic events Speer experienced,
15
among which were being attacked by his mother, who wanted to beat the demons out of
16
him, witnessing his half-brother Chris get shot, being sexually abused by his aunt, being
17
sent away from home on several occasions, and being physically abused by his stepfather.
18
(Id. at 27–31.)
19
In support of a diagnosis of PTSD, Dr. Parrish further testified that Speer
20
experienced “intrusive distressing recollection[s]” of these events as well as “intense
21
psychological distress,” including depression. (Id. at 33.) She testified that Speer engaged
22
in acting out behavior, including sexual acting out as a child; that he made “efforts to avoid
23
thoughts, feelings or conversations associated with the trauma”; that he experienced
24
“increased arousal,” including difficulty falling or staying asleep; that his symptoms lasted
25
more than a month; and that the “disturbance caused clinically significant distress or
26
impairment in social, occupational, or other important areas of functioning.” (Id. at 33–35.)
27
Dr. Parrish opined that Speer suffered from chronic rather than acute PTSD. (Id. at 43.)
28
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1
Dr. Parrish acknowledged that Speer engaged in antisocial behavior but again
2
documented a number of factors that contributed to that behavior, including conflicts
3
within the home, neuropsychological problems, impairment in brain function, and
4
depression. (Id. at 36–41.) She also noted that “substance abuse is commonly found among
5
people who have ADHD.” (Id. at 41–42.)
6
Finally, Dr. Parrish testified that antisocial personality disorder was not the
7
appropriate diagnosis for Speer. (Id. at 45.) In her opinion, the “combination of impairment
8
of brain functions and PTSD account for the symptoms far better than personality
9
disorder.” (Id.) She also noted that, unlike individuals diagnosed with antisocial personality
10
disorder or psychopathy, Speer was capable of expressing concern for others and
11
experiencing fear and anxiety. (Id. at 47–49.)
12
13
Dr. Parrish’s report was admitted at trial. (See Doc. 23-10, Ex. 49.)
iii.
Dr. Stewart
14
Dr. Pablo Stewart, a psychiatrist, testified for Speer in mitigation. He diagnosed
15
Speer with PTSD, ADHD, major depressive disorder, and Polysubstance Abuse
16
Dependence, as well as moderate to severe impairment in brain function. (RT 2/28/07 at
17
10.) According to Dr. Stewart, Speer’s “constellation of disorders all contributed to his
18
neurocognitive impairment.” (Id. at 14.) Dr. Stewart opined that Speer’s “brain is damaged
19
to the extent that he has an impaired ability to weigh, deliberate, conceptualize sequence
20
of events and adapt to changing environmental cues.” (Id.)
21
Dr. Stewart also cited as significant circumstances in Speer’s background the fact
22
that he was “drug-exposed as a fetus,” which contributed to his brain dysfunction, and “the
23
depravity of [sic] which he grew up, the lack of nurturing, this absence of availability of
24
any parent, parental figure.” (Id. at 15.)
25
According to Dr. Stewart, these conditions “act synergistically,” like a “perfect
26
storm,” “where you have the posttraumatic stress and the depression and the attention
27
deficit hyperactivity disorder, . . . coupled with the fact that he was exposed to significant
28
neurotoxins as a fetus, the fact that he had this very depraved upbringing . . . all contributed
- 63 -
1
to his brain damage.” (Id. at 16.) Dr. Stewart explained that Speer’s brain is damaged in
2
the way that it “processes information and . . . uses that information to have him make
3
decisions and determine his behavior.” (Id.)
4
Dr. Stewart next testified about the criteria for a diagnosis of PTSD and the facts
5
about Speer’s life that satisfied those criteria. As described above when discussing Dr.
6
Parrish’s testimony on the same subject, Speer experienced several traumatic events that
7
meet the first criteria, including witnessing his step-brother get shot, being beaten by his
8
parents, and being sexually abused. (Id. at 19–26.)
9
The next criteria, reexperiencing the trauma, was satisfied because Speer reported
10
seeing things, having bad dreams, being depressed, and experiencing “intrusive thoughts
11
of sexual abuse.” (Id. at 26–27.) Speer also acted out sexually as a child at school, made
12
sexual remarks, and grabbed other children while in juvenile detention. (Id. at 30–31.) He
13
also acted out violently, hitting other children with various objects, poking another boy
14
with a knife, and hitting his great-grandmother in the face. (Id. at 32–33.)
15
Dr. Stewart testified that the next PTSD criterion, avoidance, was satisfied by
16
Speer’s efforts to change the subject when speaking with Dr. Stewart and Speer’s
17
“disassociative episodes . . . where he would still be there physically in the room with me,
18
but psychologically, he would be gone.” (Id. at 35–36.) Another method of avoidance was
19
Speer’s substance abuse, beginning at age five with marijuana and alcohol use. (Id. at 36.)
20
Dr. Stewart noted that Speer overdosed on methadone at age 13 and used crack cocaine
21
and methadone as a young adolescent. (Id. at 37.)
22
A finding of Hyperarousal, the next criterion, was supported by DOC records
23
showing Speer had been prescribed an antidepressant to control “intrusive memories,
24
hyperarousability, decreased sleep, and dysphoria.” (Id. at 38.) The disturbance lasted more
25
than a month, satisfying another criteria for a PTSD diagnosis. (Id. at 39–40.) Dr. Stewart
26
then explained that Speer’s symptoms interfered with his ability to function, causing
27
significant impairment in several areas of his life, thus satisfying the final PTSD criterion.
28
(Id. at 41.)
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1
Dr. Stewart next testified that he considered whether Speer “suffered from any
2
personality disorders” and determined that he did not. (Id. at 45–46.) While acknowledging
3
that Speer had been diagnosed with conduct disorder as a child, Dr. Stewart opined that
4
Speer’s behavior was the “understandable” product of “his family and the drug abuse and
5
the lack of parental involvement” and “the abuse that went on.” (Id. at 48.)
6
Dr. Stewart testified that the circumstances of Speer’s involvement in the Soto
7
murder reflected his impaired brain function. (Id. at 50.) These circumstances included the
8
“funny little code” Speer used to communicate over the phone, his difficulty “weighing
9
consequences,” and his inability to “respond to the changing environment.” (Id.) All of
10
these factors were “absolutely consistent with someone who has severe brain damage.” (Id.
11
at 51.)
12
13
Finally, Dr. Stewart testified that Speer’s PTSD, depression, substance abuse, and
ADHD are all treatable conditions. (Id. at 51.)
14
Dr. Stewart’s report was also admitted at trial. (See Doc. 23-10, Ex. 51.)
15
b.
16
Counsel called three lay witnesses in mitigation, relatives who detailed the neglect,
17
18
Lay witnesses
violence, and dysfunction of Speer’s childhood.
i.
Chris Womble
19
The first witness was Speer’s half-brother Chris Womble. When shown a
20
photograph of his mother, Sabrina Womble, he identified the track marks on her arm
21
caused by shooting heroin. (RT 2/5/07 at 8.) He testified that he, his mother, his father, and
22
Speer all used heroin from November 2001 to March 2002 when Chris and Speer were
23
arrested for the Soto burglary. (Id. at 9.) He and Speer used heroin every day, his parents
24
four or five times a week. (Id.) His parents were also enrolled in a methadone program;
25
they had received methadone daily for 25 or 30 years. (Id. at 10.)
26
Chris testified that he and Speer were feeling the symptoms of withdrawal on the
27
morning of the burglary, which they carried out in order to steal property that could be sold
28
for money to buy drugs. (Id. at 17–18.)
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1
Sabrina’s routine was to get up and go to the methadone clinic, then come back and
2
sleep for most of the day, “not really make no meals or nothing.” (Id. at 24.) Chris testified
3
that the houses his family lived in were always filthy. (Id. at 25–26.)
4
Sabrina did not care what her children were doing the majority of the time. (Id. at
5
34.) When she did get upset, she would “slug us with her fist, maybe hit us with a broom.”
6
(Id. at 34.) The children were not involved in extracurricular activities. (Id. at 35–36.)
7
Chris testified about Speer’s behavior from 6 to 11 years old. He recalled that Speer
8
“would be in all hours of the night, carrying guns maybe, stolen bikes, stuff like that.” (Id.
9
at 36–37.) In response Sabrina would hit Speer “with her fist, with a belt, maybe wait until
10
he was asleep and call the police on him to have him removed from the home, or just take
11
him to a relative and dump him off there.” (Id. at 37.) Chris recalled an incident when
12
Sabrina was “slugging Paul in the face, talking about that she wanted the demons to leave
13
[him]. And Paul was just sitting there growling and spitting at her.” (Id. at 39.)
14
Chris testified that he and his sister witnessed a man raping Sabrina. (Id. at 41–42.)
15
Sabrina then had an “emotional breakdown where she flipped out in the home.” (Id. at 42.)
16
She physically punished the children, striking Speer with a fist, belt, or broom. (Id. at 46.)
17
She punished Speer more severely than his brothers, hitting him longer, harder, and more
18
frequently. (Id.) Bill Womble, Brian’s father and Speer’s stepfather, would also discipline
19
Speer more severely, striking him with a fist or belt. (Id. at 48.) He punished Speer for “not
20
being his kid, and he didn’t want to have to deal with Paul.” (Id. at 48–49.)
21
Chris testified that he and his siblings were dressed poorly for school, wearing
22
stained shirts and shoes and jeans with holes. (Id. at 50.) Chris and Speer would steal
23
clothes off clotheslines or from stores. (Id. at 51.) Sabrina knew they were stealing but she
24
did not want to spend money on new clothes; she needed the money to buy “[h]eroin,
25
valium, things like that.” (Id. at 52.)
26
Chris described a pattern of improved behavior when Speer returned home from
27
placement in juvenile facilities, but “[w]ithin a couple weeks” his conduct would
28
deteriorate and “he’d be staying out late, absconding from probation, maybe running
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1
around with [his maternal uncle] Steve [Case] late hours of the night, . . . having drugs with
2
him, maybe having stolen bikes and things like that.” (Id. at 57.) Chris saw Steve, who was
3
around 30 at the time, and Speer, then 13, injecting speed. (Id. at 59.) Speer and Steve
4
brought stolen goods into the home, including VCRs, bikes, and guns. (Id. at 61.)
5
6
Chris testified that his father never took him hunting, fishing, or to sporting events.
(Id. at 62–63.) Their mother never read them a bedtime story. (Id. at 72.)
7
Chris testified that their parents fought verbally and, a couple times a month,
8
physically. His mother would “slug” his father with a fist or strike him with other objects,
9
like a high-heeled shoe. (Id. at 72–73.) They argued about money and drugs. (Id. at 73.)
10
Chris testified that there was “talk in the family” about his maternal grandmother
11
being a witch with special powers. (Id. at 74.) Sabrina herself was clairvoyant and knew
12
about events before they happened. (Id. at 74–75.)
13
14
15
16
17
18
19
Chris described an incident when their mother gave Speer his birth certificate and
threw him out of the house. (Id. at 75–76.) Speer was 11 or 12 at the time. (Id. at 76.)
Finally, Chris testified that he loved Speer and it would “tear him up” for Speer to
be sentenced to death. (Id. at 78.)
ii.
Bill Womble
Speer’s stepfather, Bill Womble, testified that he married Sabrina in 1981, when he
was 30, she was 24, and Speer was two or three. (RT 2/22/07 at 10, 13.)
20
Womble had been addicted to heroin and other narcotics since he was 18. (Id. at
21
12.) Womble was aware that at the time of their marriage Sabrina had been using drugs,
22
including heroin, dilaudid, and valium, “for some years.” (Id.) Womble and Sabrina both
23
injected heroin. (Id. at 12–13.) Sabrina slept a lot from all the valium she took. (Id. at 15.)
24
Speer once came home from school to find her asleep and tried, unsuccessfully, to wake
25
her by flooding the apartment. (Id.)
26
Speer liked to spend time with his paternal grandfather, George, who was also an
27
intravenous heroin and dilaudid user. (Id. at 17.) Steve Case, Speer’s uncle, also lived with
28
George. (Id. at 18.) He too was a dilaudid user. (Id. at 18.)
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1
Speer’s biological father, Mike Speer, did not want to spend time with him. (Id. at
2
18–19.) When Speer did spend time with his father’s family he was neglected. (Id. at 19.)
3
Speer wanted to see his father but when visits were arranged Mike Speer would cancel at
4
the last minute, leaving Speer disappointed. (Id. at 20–21.)
5
6
7
8
Sabrina had a temper and would push, hit, and throw things at Womble. (Id. at 22–
23.) They argued in front of the children. (Id. at 23.)
Sabrina told Womble she had a family history of witchcraft. She performed chants
and once angrily accused Womble and Speer of trying to cast a spell on her. (Id. at 24.)
9
Sabrina’s mood fluctuated depending on whether she had access to valium; she
10
would become “extremely angry” when she ran out. (Id. at 25.) Womble believed she also
11
suffered from depression. (Id. at 26.)
12
Womble testified that Speer was hyperactive. In one incident, Speer was six or seven
13
and had been misbehaving all day, including “using the F word.” (Id. at 30.) When Womble
14
arrived home from work, Sabrina insisted he discipline Speer. (Id.) Womble swatted him
15
on the butt with his belt. (Id.) The same thing happened the next day and Womble “just
16
flipped out and started swatting him on the butt” and asking Speer “why do you keep doing
17
it over and over?” (Id. at 31.) He ended up leaving marks on Speer’s back. (Id.) He
18
acknowledged that he might have hit Speer with his fist. (Id. at 32.) According to Womble,
19
Speer was “very smart” and “knew how to get people mad,” which was a “daily
20
occurrence.” (Id.) The household was “chaotic.” (Id.)
21
22
Womble testified that in 1985 Speer disclosed that he had been sexually molested
by his aunt, who forced him to perform oral sex on her. (Id. at 33–34.)
23
Womble testified that when Chris was old enough to accompany him and Speer on
24
outings, Speer began to misbehave because he wanted Womble’s complete attention. (Id.
25
at 34–35.) He was “constantly breaking things, just always trying to get attention.” (Id. at
26
36.) He would use obscenities at four or five years old. (Id.)
27
Womble testified that he remembered an incident from 1986 when Speer, at age
28
seven, exposed himself in school. (Id. at 37–38.) Speer’s grandmother told one of his
- 68 -
1
teachers that Speer was “emotionally disturbed.” (Id. at 38.) She told Womble the same
2
thing, and that Speer needed to be disciplined, but Womble and Sabrina never followed
3
through. (Id. at 39–40.) Sabrina ignored reports stating the family needed counseling or
4
that Speer needed to be evaluated. (Id. at 43.) Womble never involved Chris and Speer in
5
sports, outdoor activities, or the Scouts. (Id. at 44.)
6
Womble testified that there were CPS contacts in 1988 and that police officers came
7
to his house “on numerous occasions, talking to [Womble] or Sabrina about Paul.” (Id. at
8
48.) Womble agreed that Speer was “out of control and incorrigible” in July 1988. (Id. at
9
50.)
10
Womble testified about court-ordered counseling sessions that he and Sabrina
11
attended. Womble would try to hide Sabrina’s drug use from counsellors and try to make
12
the family look better than it was. (Id. at 54.) He did not want to contradict Sabrina or
13
otherwise upset her, or “get between her and the counselor.” (Id. at 53–54.)
14
In late 1988 CPS removed Speer from the home. (Id. at 55–57.) He had red welts
15
on his neck and stomach, which Womble acknowledged he was responsible for. (Id. at 57.)
16
Sabrina was the dominant partner in the marriage, and because she spent much of
17
her time sleeping due to the effects of valium or heroin, the children were unsupervised
18
and roamed the streets at night. (Id. at 60–62.)
19
Womble acknowledged other incidents of domestic violence, where Speer was
20
either the victim or the perpetrator. He recalled that Speer “was taken several times to
21
juvenile.” (Id. at 65–66.)
22
Because Sabrina wanted Speer out of the house, he spent many weekends with one
23
of his grandparents. (Id. at 66.) When he returned, his behavior was worse because of all
24
the attention he had received. (Id. at 66–67.)
25
Speer was close to his grandfather George, who died when Speer was 12 or 13. (Id.
26
at 67.) After George’s death, Speer grew closer to his uncle Steve Case, Sabrina’s brother.
27
(Id.) Case was around 40 at the time and a drug user; Speer was 12. (Id. at 28.) They
28
committed burglaries together. They broke into the house of Womble’s neighbor—“Steve
- 69 -
1
put Paul through a window and had him take some guns or silver coins that he knew was
2
in the house.” (Id. at 68.) Case also “got Paul to steal a .357 magnum from [Womble’s]
3
own brother.” (Id. at 68–69.)
4
5
Around this time Speer, age 12, was hospitalized after overdosing on
methamphetamine he had injected. (Id. at 70–71.)
6
From 1989 to 1992, Speer “went to juvenile court several times.” (Id. at 71.)
7
Womble recalled that one of the probation officers or psychologists who saw Speer
8
explained that Speer needed “structure and control.” (Id.) Sabrina opposed
9
recommendations that Speer be placed in special education. (Id. at 75.)
10
Speer was prescribed the maximum does of Ritalin but it made him “high as a kite,”
11
so Sabrina discontinued the drug without consulting a physician. (Id. at 76 .) Steve Case
12
took the leftover Ritalin. (Id. at 77.)
13
Womble testified about the incident in which Chris caught a man attacking Sabrina
14
in her bedroom. (Id. at 82.) After the assault Sabrina was “really out of it” for a couple
15
weeks to a month, “like she was possessed by a demon.” (Id. at 86.) She attacked Womble
16
and Speer with a baseball bat. (Id. at 83.) She chased Speer, then 14, around with the bat
17
until “she ran him off” and he went to his grandmother’s house. (Id. at 84.) In another
18
incident Sabrina was taken to jail after attacking Womble with a fork. (Id. at 84–85.)
19
Womble moved the children out of the home. (Id. at 85.) Sabrina was voluntarily
20
committed for three days. (Id.)
21
22
Womble testified that doctors had used a forceps to deliver Speer, which left a mark
that was still visible when he was three. (RT 2/26/07, a.m., at 50.)
23
Womble testified that between ages 13 and 18 Speer was committed to the Adobe
24
Mountain juvenile facility four or five times. (Id. at 64–65.) When he returned home, the
25
conditions in the household had not improved with respect to Sabrina’s “emotional state”
26
and her drug use and inability to discipline Speer. (Id. at 65–66.)
27
28
At one point when Speer was 18 he returned home to live with Womble and Sabrina.
(Id. at 68.) They all used drugs together, including sharing needles. (Id.)
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1
Speer was arrested and went to prison in 1998 for three or four years. (Id. at 69–70.)
2
Womble visited him once; Sabrina did not visit him at all. (Id. at 70.) After being released
3
from prison, Speer stayed with Al Heitzman for a month before moving back home with
4
Womble, Sabrina, Delilah, Chris, and Brian. (Id. at 71–72.) They were all using heroin,
5
Sabrina was still taking valium, and Chris was also using crack and “getting into
6
burglarizing cars.” (Id. at 72–73.) Brian eventually moved out and went to stay with
7
Heitzman. (Id. at 74.)
8
9
10
11
Womble testified that Chris had been shot twice, the first time in the leg, the second
time, a drive-by shooting, in the face. (Id. at 77.)
Womble acknowledged that his children were “raised in an environment where
violence was a way of dealing with problems and disputes.” (Id. at 86.)
12
Womble testified that Speer receiving the death penalty would affect him negatively
13
because he still loved Speer. He pointed out that Sabrina was “just about suicidal about
14
this.” (RT 2/26/07, p.m., at 8.) She could not face what was going on and “doesn’t want to
15
live through it.” (Id. at 9.) Speer’s half-sister Delilah also loved Speer and was “just not
16
facing what is going on.” (Id.) Counsel then showed a video depicting Speer’s son, Cedric,
17
in the apartment they all shared in 2000.
18
iii.
Carla Lujan
19
Carla Lujan, Speer’s cousin on his father’s side, testified that Speer stayed with her
20
family in 1988 when he was nine and she was eleven. (RT 2/20/07 at 146.) Lujan, now a
21
lawyer, explained that her mom, Sue, was fond of Speer and offered to take him in when
22
Sabrina said she was going to give Speer away. (Id. at 147.) Speer lived with them for a
23
couple months. (Id.) Lujan testified that Speer’s house was “always trashed out, a big
24
mess.” (Id.) Speer wore “raggedy” clothes before he came to live with Lujan’s family. (Id.
25
at 148.)
26
Speer was “pretty hyperactive” but he was “very good” and participated in Bible
27
studies with family. (Id. at 147–48.) He and Lujan played together in a treehouse in the
28
backyard, went swimming, and played video games. (Id. at 148–49.) Speer told Lujan that
- 71 -
1
his mom hated him and didn’t want him and said so in front of him. (Id. at 149.) She “put
2
him down” and yelled at him “constantly.” (Id. at 150.)
3
Sue took Speer to counseling sessions. (Id. at 151.)
4
Lujan testified that Speer, in contrast to his behavior at his own home, was “very,
5
very good in our home.” (Id. at 152.) He had “very good manners . . . for such a young
6
age.” (Id.)
7
Lujan testified that Sabrina came late one night to take Speer home. (Id. at 153.) She
8
needed Speer to live at home or she would lose out on support money. (Id.) Lujan was
9
upset because Speer “was like a brother to her.” (Id.)
10
Lujan testified that Speer was “very active” when living at home and Sabrina
11
“constantly yelled at him and told him to knock it off.” (Id. at 153–54.) While living at
12
Lujan’s house, Speer was “very calm.” (Id. at 154.)
13
Lujan also testified about Speer’s half-sister, Delilah. She told Lujan that she had
14
dropped out of school and become a prostitute at age 13. (Id. at 157.) She was a drug user
15
and had gotten a sexually transmitted disease. (Id.)
16
17
Finally, Lujan testified that she loved Speer and that he was important to her and
other members of her family and they cared what sentence he received. (Id. at 161.)
18
In rebuttal, the State called one witness, Dr. Michael Bayless. As discussed in detail
19
below, Dr. Bayless diagnosed Speer with antisocial personality disorder and dysthymia,
20
with little to no cognitive impairment.
21
In his lengthy closing argument, defense counsel traced Speer’s development and
22
the hardships and risk factors he encountered, emphasizing the dysfunctional home in
23
which Speer grew up; the fact that his mother used heroin and methadone while she was
24
pregnant with Speer and that both parents were addicts; the physical and sexual abuse Speer
25
experienced; his own extensive drug use; and his depression, ADHD, and learning and
26
emotional disabilities, for which he never received adequate treatment. (See, e.g., RT
27
3/26/07 at 81–140.) Without those circumstances, counsel argued, the murder would not
28
have occurred.
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1
c.
2
Speer attached several declarations to his PCR petition. Mitigation specialist David
3
Wilcox attested that he did not prepare a chronology of Speer’s life. (PCR Pet., Ex. 16, ¶
4
4.) He did not interview Speer’s teachers, CPS workers, probation employees, DOC
5
employees, or mental health evaluators/counselors. (Id., ¶ 7.) He did not interview Sabrina
6
Womble because he “felt her heroin abuse did not make her a suitable witness for the
7
defense.” (Id., ¶ 7.) He interviewed Bill Womble twice and spoke to Speer’s biological
8
father, Mike Speer, on the phone. Mr. Speer “was not receptive to being interviewed or
9
cooperating with the defense team.” (Id., ¶ 9.) Wilcox had a “very poor relationship” with
10
PCR evidence
Speer and had difficulty “establish[ing] good communication and trust.” (Id., ¶ 10.)
11
Sabrina Womble attested that she “used significant amounts of heroin throughout
12
[her] pregnancy with Paul” and he “was born heroin addicted.” (PCR Pet., Ex. 17, ¶ 3.)
13
She introduced her sons to heroin so they would not have to “run across the freeway” to
14
buy methamphetamine. (Id., ¶ 7.) Sabrina stated that Speer’s biological father “was not
15
involved in his life or in this case.” (Id., ¶ 13.) She admitted she was “not a good mother.”
16
(Id., ¶ 15.) She also stated that she was “not allowed to testify in Paul’s mitigation hearing”
17
and did not have a “good relationship” with the defense team. (Id., ¶¶ 2, 6.)
18
Debra Corral, Speer’s paternal aunt, attested that she observed fresh track marks on
19
Sabrina’s arms and saw her shooting heroin when she was pregnant with Speer. (PCR Pet.,
20
Ex. 18, ¶ 6.) According to Debra, all of Sabrina’s children were born addicted to heroin
21
and methadone. (Id., ¶ 7.) The day Speer was born, Debra saw his “arms and legs jerking
22
and he was ‘dry crying.’” (Id.) He spent four or five days in the hospital. (Id.) Debra denied
23
sexually abusing Speer, stating that Sabrina used the allegation to try to extort money from
24
her parents. (Id., ¶ 15.) She was never alone with Speer and he never stayed with her
25
overnight. (Id.) Speer’s legal team never spoke with her. (Id., ¶ 19.)
26
Diane Hauer was a secretary at Speer’s elementary school. She knew that his parents
27
kicked Speer out of the house and that he also ran away from home. (PCR Pet., Ex. 19, ¶
28
3.) Diane visited Speer’s home and found it so filthy she “dared not sit down.” (Id., ¶ 4.)
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1
She knew from his school records that Speer “was a slow student but did not reach the level
2
of mental retardation.” (Id., ¶ 5.) Diane was not contacted by Speer’s defense team. (Id., ¶
3
6.)
4
Veronica Trujillo, the mother of Speer’s child, attested that Speer “would steal so
5
that his parents would have money for drugs. His parents sent [him] to get the drugs or
6
money or else they kicked him out of the house.” (PCR Pet., Ex. 20, ¶ 4.) Veronica’s
7
mother, Lilly, attested that Speer did not have a relationship with his biological father.
8
(PCR Pet., Ex. 21, ¶ 4.) She noticed that Speer’s mother slept all day and was up all night;
9
the parents had a “weird lifestyle” and used drugs. (Id., ¶ 7.) They would have their son
10
arrested but he would always return to the family home. (Id., ¶ 8.) Speer’s mother “put
11
restraining orders on [him] and threw him out of the family home. [She] then told police
12
[he] was abusive.” (Id., ¶ 10.) Lilly suspected that the parents sent Speer out at night to get
13
drugs for them. (Id., ¶ 9.)
14
Robin Storm attested that she completed a psychological evaluation of Paul Speer
15
for the school district. (PCR Pet., Ex. 22, ¶ 1.) She was not contacted by the defense team.
16
(Id., ¶ 2.) She measured Speer’s IQ as ranging from 76 to 88. (Id., ¶ 3.) She diagnosed him
17
at age 11 as “seriously emotionally disturbed.” (Id., ¶ 4.) She opined that Speer was
18
“handicapped, emotional disability [sic] based on his depression” and should have been
19
placed in a special education classroom. (Id., ¶ 7.)
20
Analysis
21
In alleging ineffective assistance of counsel at sentencing, Speer contends that
22
“[o]f primary concern is trial counsel’s failure to interview or present the testimony of
23
key lay witnesses who would have substantiated Speer’s claims of physical and sexual
24
abuse, multigenerational addiction and mental illness, trauma, institutional failure, and
25
substance abuse.” (Doc. 13 at 140.) These witnesses include family members, a former
26
juvenile probation officer, and former neighbors, teachers, acquaintances, and school
27
officials. (Id.) According to Speer, “[p]erhaps the biggest error was trial counsel’s failure
28
to present the testimony of Speer’s mother.” (Id. at 141.)
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1
In these habeas proceedings Speer attempts to support this claim with a new set of
2
declarations, executed in 2018. Attached to his notice of request for evidentiary
3
development are declarations from his aunt Debra Corral; his step-uncle John Womble;
4
his biological father, Michael Speer; his stepfather, William Womble; his great aunt Doris
5
Donithan; his step-aunt Sue Riley; and his juvenile probation officer, Scharlene
6
DeHorney.22 (See Doc. 23, Ex’s 9–15.)
7
Because this aspect of Claim 14 was decided on the merits by the state PCR court,
8
the Court’s review under AEDPA is “limited to the record that was before the state court.
9
. . .” Pinholster, 563 U.S. at 181; see Ayala v. Chappell, 829 F.3d 1081, 1102 (9th Cir.
10
2016) (refusing to consider evidence that specific individuals were willing to testify on
11
petitioner’s behalf when the individuals weren’t named in the claim as it was presented
12
to the state supreme court); Murray (Robert), 745 F.3d at 998. Therefore, the Court cannot
13
consider these new declarations in its analysis of this claim.
14
The PCR court, in denying the claim on the merits, first noted that defense counsel
15
had cited 23 mitigating circumstances at sentencing and that the Arizona Supreme Court,
16
in its independent review, found that the following circumstances had been proved by a
17
preponderance of the evidence:
18
19
Defendant suffered a difficult childhood; he suffered physical and sexual
abuse during childhood; he habitually abused drugs and alcohol beginning in
his early teens and eventually became a heroin addict; he presented evidence
20
21
22
23
24
25
26
27
28
22
Also attached are documents, including a 1996 newspaper article and scientific
papers, purporting to support the allegation that as a child Speer may have been exposed
to a toxin, trichloroethylene (TCE), which had contaminated the drinking water in parts of
Phoenix. (Doc 23, Ex’s 35–40.) Speer alleges that trial counsel performed ineffectively in
failing to investigate Speer’s potential exposure to TCE. (Doc. 13 at 15–16, 145–46.) This
is a new claim, raised for the first time in Speer’s habeas petition. Contrary to Speer’s
argument (Doc. 13 at 256), the claim’s default is not excused by the performance of PCR
counsel because the claim itself is speculative and conclusory. See Atwood, 870 F.3d at
1060; Runningeagle, 825 F.3d at 982; see also Jones v. Gomez, 66 F.3d 199, 205 (9th Cir.
1995) (conclusory allegations of ineffective assistance of counsel do not warrant habeas
relief). In addition, the Court is not permitted to consider the new evidence, Ramirez, 142
S. Ct. 1718, leaving the claim wholly without support.
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1
2
3
4
5
6
7
8
9
10
11
12
13
of mental health issues and a low IQ; and he proved that the death penalty
would have negative effects on his family.
(ME 5/20/15 at 17–18.)
The PCR court then outlined the evidence Speer argued counsel should have
presented:
Now, Defendant seeks to provide additional information about his
background, from family members (mother, estranged father, paternal aunt
to testify about his heroin withdrawal as a newborn); teachers (fourth grade
teacher, school secretary to testify Defendant was “not from a healthy happy
home,” school psychologist to testify that Defendant’s IQ was measured at
11 as between 76 and 88, and that he was seriously emotionally disturbed);
and others (girlfriend and mother of his son, as well as his girlfriend’s
mother, to testify to Defendant’s mother’s involvement in his drug use,
including using Defendant and money earned from Defendant prostituting
himself to procure drugs for herself).
(Id. at 18.)
14
In addition to this information, the PCR court considered Speer’s “‘love of family’
15
based on statements made in the 22 available tapes.” (Id.) The court gave the evidence
16
“little weight” as mitigation, however, because “Defendant was simultaneously plotting
17
the murder of the victims to a previous crime and pressuring his half-brother to provide
18
assistance.” (Id.) The court also noted that “the jury was presented with evidence of Speer’s
19
love of his family as Sabrina Womble, Defendant’s mother, testified during the guilt phase
20
that Defendant repeatedly talked to her about how much he loved her.” (Id.)
21
The court then noted that “trial counsel spent almost three weeks presenting a great
22
deal of evidence of Defendant’s difficult childhood and dysfunctional home life and
23
information about his mental health.” (Id.) Counsel presented this mitigating evidence
24
“through then-available family members as well as relying heavily on the defense mental
25
health experts.” (Id.)
26
The court next considered Speer’s argument that counsel should have presented
27
Sabrina Womble as a mitigation witness. Sabrina “contend[ed] that she could have
28
provided relevant evidence of her heroin use during pregnancy, how she introduced her
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1
son to heroin, how she was a drug addict, how Defendant’s natural father was not involved
2
in his life, and how she was not a good mother.” (Id.) The court rejected this as a grounds
3
for ineffective assistance, explaining:
4
5
6
7
8
9
10
11
12
13
14
15
16
17
The problem is that Sabrina Womble was called by the State as a witness in
the guilt phase of the trial. During testimony, she minimized her use of
heroin, denying she was an addict her entire adult life, which is in stark
contrast to her Declaration attached as Exhibit 17 to the Petition.
There was a sound strategic reason for trial counsel not to call Sabrina
Womble in the penalty phase: she lacked credibility. Among other things,
she testified that she denied knowing her husband was on probation, which
is difficult to believe; she said she was asleep at the time of the March 14
burglary and denied seeing the Defendant and co-Defendant in her apartment
with stolen items; she stated she was too high to remember anything; she was
impeached at trial with her prior inconsistent statements; and Defendant was
convicted of witness tampering as a result of inducing her to testify falsely.
Not only would Sabrina have lacked credibility with the jury, the mitigation
specialist declared that Sabrina’s heroin abuse did not make her a suitable
witness for the defense. . . .
(Id. at 18–19.)
The court determined that, even without the additional witnesses Speer argued
should have been called, “the jury heard ample evidence of mitigation”:
25
As the Supreme Court determined, trial counsel presented by way of
mitigation the content of much of the evidence Defendant now wants to add,
not necessarily by way of specific example, but illustrating generally that
Defendant had a troubled childhood and dysfunctional home life. This
included: Sabrina Womble’s drug use and her abuse and neglect of
Defendant; Defendant’s early exposure to drugs and history of substance
abuse; he witnessed his mother being raped; he was physically abused by his
step-father; he was abandoned by his own father; he was sexually abused by
a family member; he offered testimony from mental health professionals
about how he suffered from PTSD, was depressed, and had a low IQ; how
he was forced to prostitute himself at age 12 for money to be used to buy
drugs; and how he had moderate to severe cognitive impairment.
26
(Id. at 19.) The court found that “[i]t was not unreasonable for trial counsel to rely heavily
27
on mental health professionals, instead of Speer’s family members” because “[t]he
28
additional family members . . . would merely have offered cumulative evidence. Since they
18
19
20
21
22
23
24
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1
have a natural bias in favor of Defendant, the weight of their purported testimony would
2
not in the Court’s view have led to a different outcome.” (Id.)
3
The court concluded, therefore, that “trial counsel’s performance was reasonable
4
under the circumstances, was not deficient, and Defendant was not prejudiced. In the
5
Court’s view, there is not a reasonable probability that, absent the errors Defendant alleges,
6
the sentencer . . . would have concluded that the balance of aggravating and mitigating
7
circumstances did not warrant death.” (Id.)
8
Finally, the court found that “given the evidence that Defendant conspired with his
9
brother to eliminate witnesses to a previous crime, which is a particularly egregious act,
10
the Court does not believe that additional evidence of Defendant’s background and
11
childhood would have resulted in leniency” and therefore “Defendant was not prejudiced
12
by any deficiency in the mitigation investigation.” (Id. at 19–20.)
13
Speer argues that this decision was an unreasonable application of clearly
14
established federal law and based on an unreasonable interpretation of the facts. (Doc. 13
15
at 146–50.) These arguments fail, as set forth next.
16
a.
17
Speer contends that the PCR court unreasonably applied clearly established federal
18
law by finding it was reasonable for defense counsel “to rely heavily on mental health
19
professionals, instead of Speer’s family members.” (Doc. 13 at 147.) Speer asserts that
20
“[i]n light of the state court record, it was in fact patently unreasonable for trial counsel to
21
rely solely on experts and not enlist the many lay witnesses who were available to testify.”
22
(Id.) This argument is not persuasive. First, of course, counsel did not rely “solely” on
23
expert witnesses; in fact, they presented as many lay witnesses as experts.
Application of clearly established federal law
24
Nevertheless Speer contends that the missing “percipient witnesses” would have
25
provided supporting evidence regarding “sexual abuse; opioid addiction at birth; genetic
26
predisposition to mental illness and addiction; and multigenerational and complex trauma.”
27
(Id.) According to Speer, such testimony was necessary to corroborate his self-reporting
28
regarding these issues and to counter the prosecution’s attempt to portray him as a
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1
“malingerer and manipulator” “who could not be relied upon to tell the truth.” (Id. at 141.)
2
This argument does not withstand scrutiny.
3
Speer’s expert witnesses, particularly Dr. Miller, addressed each of the issues Speer
4
contends should have been corroborated by additional testimony from lay witnesses. With
5
respect to Speer’s opioid addiction at birth, Dr. Miller testified that in a police report
6
Speer’s biological father stated that Sabrina Womble used heroin during her pregnancy.
7
(RT 2/6/07 at 48.) He further testified that information about Sabrina Womble’s natal drug
8
use had been provided by “various sources” and confirmed again by Speer’s biological
9
father immediately prior to Dr. Miller’s testimony. (RT 2/6/07 at 72.) Lay testimony was
10
not needed to provide additional support for this factor. The Arizona Supreme Court found
11
that Speer had proved “his mother used heroin during pregnancy.” Speer, 221 Ariz. at 464,
12
212 P.3d at 802.
13
In addition, Sabrina Womble, as the PCR court found, would not have been a
14
credible witness, given her inconsistent reports about the extent of her drug use. Speer’s
15
aunt Debra Corral, according to her PCR declaration, could have testified about her
16
observation of Speer’s condition as a newborn, but she also denied Speer’s allegation of
17
sexual abuse, reducing her value as a mitigation witness. (See PCR Pet., Ex. 18.) Finally,
18
of course, Speer could not corroborate his mother’s drug use during pregnancy, so his
19
credibility on that question was not at issue.
20
With respect to the sexual abuse Speer allegedly experienced, he offers no witnesses
21
who could have corroborated his self-reporting of the incidents; and, again, the Arizona
22
Supreme Court found that sexual abuse was a mitigating factor. Speer, 221 Ariz. at 464,
23
212 P.3d at 802.
24
Speer does not specify what the missing lay witnesses would have testified about to
25
corroborate his “genetic predisposition to mental illness and addiction [] and
26
multigenerational and complex trauma.” (Doc. 13 at 147.) As described above, the lay
27
witnesses who did testify offered substantial evidence of multi-generational drug use,
28
violence, criminality, and dysfunction, and this evidence was the grounds for much of Dr.
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1
Miller’s expert testimony about risk factors. In addition, Dr. Parrish testified about Robin
2
Storm’s evaluation of Speer. See McGill v. Shinn, 16 F.4th 666, 694–96, 698 (9th Cir.
3
2021) (rejecting ineffective assistance claim where “the defense team uncovered a ‘not
4
insignificant’ amount of mitigation evidence that spanned decades of McGill’s life and
5
presented a comprehensive picture to the jury”).
6
Speer next argues that the PCR court unreasonably determined that the omitted
7
evidence would have been cumulative to the evidence that was presented. (Doc. 13 at 147.)
8
The PCR court supported its determination that “the jury heard ample evidence of
9
mitigation” (ME 5/20/15 at 19) by noting that the Arizona Supreme, in its independent
10
review, found that a number of mitigating circumstances had been proved. See Speer, 221
11
Ariz. at 464–65, 212 P.3d at 802–03. The omitted testimony—from Sabrina Womble,
12
Debra Corral, Diane Hauer, Veronica and Lilly Trujillo, and Robin Storm—would have
13
been cumulative to the evidence offered through Speer’s family members and the experts,
14
evidence which the Arizona Supreme Court found sufficient to prove, as mitigating
15
circumstances, Sabrina Womble’s heroin use during pregnancy, the family’s drug use,
16
Speer’s depression and low IQ, his chaotic and dysfunctional childhood, his placements
17
outside the home and extensive experience with the juvenile justice system, his early drug
18
use, and the physical and sexual abuse he suffered.
19
The PCR court did not unreasonably apply Strickland when it determined that the
20
omission of cumulative evidence did not support a finding that counsel performed
21
ineffectively. The omitted evidence “barely . . . alter[s] the sentencing profile presented”
22
to the jury. Strickland, 466 U.S. at 700; see Leavitt v. Arave, 646 F.3d 605, 615 (9th Cir.
23
2011) (explaining that “cumulative evidence is given less weight because it is not as likely
24
to have affected the outcome of the sentencing”).
25
“[T]o establish prejudice, the new evidence that a habeas petitioner presents must
26
differ in a substantial way—in strength and subject matter—from the evidence actually
27
presented at sentencing.” Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005). The Ninth
28
Circuit has consistently declined to find prejudice where the omitted mitigating evidence
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1
was cumulative to the evidence presented. See Benson v. Chappell, 958 F.3d 801, 833 (9th
2
Cir. 2020) (finding no prejudice where new evidence of torture and sexual abuse was
3
“cumulative” to evidence of petitioner’s “horrendous childhood”); Schurz v. Ryan, 730
4
F.3d 812, 815 (9th Cir. 2013) (rejecting claim that counsel performed ineffectively by
5
failing to present mitigating evidence of petitioner’s “drug abuse and dysfunctional family
6
life” where counsel “extensively covered these topics in his sentencing memorandum,
7
complete with an attached psychological evaluation”); Cunningham v. Wong, 704 F.3d
8
1143, 1161 (9th Cir. 2013) (explaining that the “primary mitigation value” of testimony
9
that petitioner was loved by his family “was adequately presented at the penalty phase” so
10
additional evidence was cumulative); Rhoades v. Henry, 638 F.3d 1027, 1051 (9th Cir.
11
2011) (finding no prejudice despite the fact that new evidence “exceed[ed] what was
12
uncovered and presented by trial counsel” in part because “much of the newly adduced
13
evidence is cumulative”); Babbitt, 151 F.3d at 1176 (finding no prejudice where evidence
14
omitted at sentencing was “largely cumulative of the evidence actually presented”);
15
Woratzeck v. Stewart, 97 F.3d 329, 336–37 (9th Cir. 1996) (finding no prejudice from
16
counsel’s failure to investigate or call additional witnesses at sentencing because all the
17
information the witnesses would have presented was contained in the presentence report).
18
The omitted mitigating evidence from Speer’s mother and aunt and other lay
19
witnesses was not different in strength and subject matter from the evidence counsel did
20
present. Speer was not prejudiced under Strickland by the omission of this cumulative
21
evidence.
22
The cases cited by Speer do not support his claim. In Stankewitz v. Woodford, 365
23
F.3d 706 (9th Cir. 2004), for example, counsel presented “minimal” mitigating evidence,
24
“consisting of testimony from six witnesses (only four of whom were actually in court) and
25
covering only approximately 50 pages in the transcript.” Id. at 716. Counsel failed to retain
26
an investigator, failed to interview Stankewitz’s “teachers, foster parents, psychiatrists,
27
psychologists or anyone else who may have examined or spent significant time with him
28
during his childhood and youth,” and failed to procure a psychological examination or
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1
obtain any records related to Stankewitz’s background. Id. at 719–20. Counsel was also
2
unaware of Stankewitz’s history of drug and alcohol abuse. Id.
3
These failures resulted in the wholesale omission of classic mitigating evidence.
4
This evidence showed that Stankewitz was born into a poverty-stricken household where
5
there was not enough food to feed the 10 children. Id. at 717. The house was dirty, filled
6
with vermin, and lacked running water and electricity. Id. By age five, Stankewitz had
7
started sniffing paint. Id. He was physically and mentally abused by both parents. Id. His
8
mother drank excessively while pregnant with Stankewitz and was abused by Stankewitz’s
9
father, who struck her repeatedly in the abdomen. Id. Stankewitz’s mother beat him so
10
badly that she was jailed and he was placed in the care of the state where he was “shuffled
11
from one state institution to another.” Id. at 718. During these placements “he was
12
massively and unnecessarily drugged, tied to beds, beaten, sexually molested, neglected,
13
deliberately tortured, and otherwise abused by staff.” Id.
14
Also omitted at sentencing was evidence that Stankewitz was brain-damaged,
15
borderline retarded, and suffered from significant brain dysfunction which caused
16
problems with impulse control and judgment. Id. He experienced “intense mood shifts,
17
profound depressions with suicidal tendencies, psychotic thinking, an inability to relate to
18
reality in a rational manner, and paranoid delusional thinking.” Id. He also had a “very
19
severe” substance abuse problem dating back to as early as age 10. Id.
20
The mitigating evidence that was omitted due to counsel’s deficient performance in
21
Stankewitz is precisely the evidence that Speer’s counsel did present at sentencing. As just
22
recounted, the jury heard, over the course of almost three weeks of testimony, detailed
23
evidence about Speer’s dysfunctional childhood, which included natal exposure to heroin
24
and methadone, early drug use encouraged by his mother, emotional neglect and abuse,
25
physical abuse, and sexual abuse. Counsel presented extensive testimony from experts who
26
had reviewed the relevant records, examined Speer, and determined that he suffered from
27
PTSD, ADHD, and brain impairment. These same experts explained that Speer performed
28
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1
well in institutional settings but was consistently discharged prematurely back to his
2
dysfunctional family home.
3
Similarly, in Hamilton v. Ayers, 583 F.3d 1100, 1119 (9th Cir. 2009), the entire
4
penalty phase took less than a day and was contained in 39 transcript pages. Counsel
5
waived an opening statement and presented one witness—Hamilton’s mother—whose
6
testimony was contained in five pages. Id. at 1119–20. As a result of counsel’s lack of
7
preparation and “scant questioning,” this testimony “left the false impression that
8
Hamilton’s childhood, while unhappy, was not unusual.” Id. at 1120. As in Stankewitz,
9
counsel’s incompetent representation resulted in the omission of significant mitigating
10
evidence about Hamilton’s family background and his mental health history. Hamilton’s
11
alcoholic father physically abused him, physically and sexually abused his mother in front
12
of Hamilton, and sexually abused Hamilton’s sister with his mother’s knowledge, consent,
13
and participation. Id. at 1124–25. When the sexual abuse was disclosed the parents were
14
taken into custody. Id. at 1125. Hamilton “spent the next few years moving from one foster
15
home to another.” Id. Hamilton also “suffered from serious mental health problems
16
throughout most of his life,” including “schizophrenic paranoid disturbances” and
17
depression. Id. at 1126–27. He attempted suicide on multiple occasions. Id. at 1127.
18
Again, the contrast with the performance of Speer’s counsel is telling. The
19
mitigation evidence presented at Speer’s sentencing by both lay and expert witnesses
20
covered his family background and mental health history in extensive detail.
21
In Robinson v. Schriro, 595 F.3d 1086 (9th Cir. 2010), counsel’s performance bears
22
no relationship to the efforts Speer’s counsel made on his behalf. Robinson’s counsel
23
“engaged in virtually no investigation” and did not call any witnesses or present any
24
evidence at the sentencing hearing. Id. at 1109. Counsel did not investigate Robinson’s
25
family history, speak with any member of his family, “request school, medical, or
26
employment records, or seek a mental health evaluation.” Id. at 1109–1110. Again,
27
counsel’s failure to carry out an “effective penalty-phase investigation” resulted in the
28
omission of “classic mitigation evidence” such as Robinson’s impoverished background,
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1
unstable and abusive upbringing, childhood sexual abuse, low intelligence, personality
2
disorder, non-violent nature; and potential for rehabilitation. Id. at 1110. “Instead,
3
counsel’s limited investigation yielded almost nothing of use.” Id. at 1111. In Speer’s case,
4
counsel’s investigation yielded a comprehensive account of the mitigating aspects of his
5
background and mental health.
6
In Wallace v. Stewart, 184 F.3d 1112 (9th Cir. 1999), the defendant pleaded guilty
7
to three murders so the only issue was his sentence. Counsel at his initial sentencing spent
8
just 36 minutes conferring with the expert retained for sentencing and 1.4 hours talking
9
with other potential mitigation witnesses. Id. at 1115–16. Counsel failed to discover and
10
provide the expert with test results and information about Wallace’s background. This
11
deficient performance left the sentencing judge with an incomplete and inaccurate picture
12
of Wallace’s history and mental health. Among the information omitted was the fact that
13
Wallace came from a “dysfunctional family background[],” an environment “marred by an
14
almost unimaginable level of chaos, neglect, bizarre and insane behavior, and by extreme
15
violence between the parents.” Id. at 1116. Wallace’s mother was psychotic; his father beat
16
her; both were alcoholics. Id. Wallace sniffed glue and gasoline daily between the ages of
17
ten and twelve. Id. He experienced a “clinically significant series of head traumas” and
18
suffered from major depressive disorder and possibly organic brain disorder. Id. At the
19
time of the murders, his ability to conform his conduct to the requirements of the law was
20
“significantly impaired.” Id.
21
In contrast to this incompetent performance of Wallace’s attorney, Speer’s counsel
22
were aware of his background and provided their experts with the information necessary
23
for them to render their diagnoses. They presented this classic mitigating evidence at
24
sentencing.
25
In each of the cases cited by Speer counsel performed ineffectively by failing to
26
investigate and present the kind of mitigating evidence Speer’s counsel did in fact
27
investigate and present. The cases support a finding that the PCR court’s denial of this
28
claim was a reasonable application of Strickland.
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1
b.
2
Speer contends that the PCR court made unreasonable factual determinations by
3
questioning the credibility of the proposed family member witnesses, principally Sabrina
4
Womble, without an evidentiary hearing. (Doc. 13 at 148–50.) He argues that the PCR
5
court mischaracterized Sabrina’s trial testimony and its divergence from the information
6
she provided in her PCR declaration. (Id.)
Factual determinations
7
The State called Sabrina to testify in the guilt phase of trial about the circumstances
8
surrounding the arrest of Speer and Chris Womble at her apartment on March 14, 2002.
9
(RT 1/4/07 at 80–97.) She testified that she had taken valium, Tylenol 3, and methadone
10
that night but denied taking heroin that day or the day before. (Id. at 92–93, 94.) She
11
testified that she had been on methadone for 30 years. (Id. at 93.) She also denied taking
12
heroin in addition to methadone, but then acknowledged that she had also taken heroin:
13
“There may be 10 years, and then maybe another five years would go by. So yes, I have
14
taken it. Not on a regular basis.” (Id.) She also admitted that in the past she had taken heroin
15
“on top of the methadone.” (Id. at 94.)
16
On cross-examination, defense counsel asked Sabrina whether she had “been using
17
heroin for quite some time.” (Id. at 99.) She replied: “When I was under 18, there was a
18
couple years I used it. But since I became an adult, if I did it, it would—it would be, maybe
19
I’d go—you know—10 years—first 10 years we were together, no, I didn’t do it.” (Id.)
20
Under counsel’s continued questioning Sabrina agreed that she had used heroin “more than
21
a few times—more than a few periods of time[.] In other words, there was two weeks at
22
one point and two weeks at another point, and sometimes it was years apart. . . .” (Id.) She
23
could not answer whether there were “numerous periods of time during which [she was]
24
taking heroin . . . on top of [her] methadone.” (Id. at 100.) She denied being a heroin addict
25
her “entire adult life,” denied introducing Speer and Chris to the drug, and denied sending
26
Speer and Chris out to “steal shit in order to get dope, heroin” for her. (Id. at 100–02.)
27
In challenging the PCR court’s assessment of her credibility, Speer asserts that
28
Sabrina “never denied being an addict” or “unduly minimize[d] her drug activity.” (Doc.
- 85 -
1
13 at 149.) She did, however, deny using heroin “on a regular basis” or being addicted her
2
“entire adult life.” In her trial testimony she denied introducing Speer and Chris to the drug
3
but in her later declaration she admitted doing so.
4
“Credibility determinations,” such as those the state PCR court made regarding
5
Sabrina Womble, “are factual determinations. As such, they ‘are presumed to be correct
6
absent clear and convincing evidence to the contrary, and a decision adjudicated on the
7
merits and based on a factual determination will not be overturned on factual grounds
8
unless objectively unreasonable in light of the evidence presented in the state court
9
proceeding.’” Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003), opinion amended on
10
denial of reh’g, 357 F.3d 461 (4th Cir. 2004) (quoting Miller-El, 537 U.S. at 340).
11
Speer’s critique falls far short of a clear and convincing rebuttal of the PCR court’s
12
assessment of Sabrina Womble’s credibility. See Rice v. Collins, 546 U.S. 333, 341–42
13
(2006) (explaining that reasonable minds might disagree about a factual finding “does not
14
suffice to supersede the trial court’s credibility determination” on habeas review); see also
15
Atwood, 870 F.3d at 1050 (explaining that a court may not “second-guess a state’s fact-
16
finding process” unless it finds that “the state court was not merely wrong but actually
17
unreasonable”) (citing Hibbler v. Benedetti, 693 F.3d 1140, 1148 (9th Cir. 2012)
18
(additional quotations omitted)).
19
c.
20
There was not a reasonable probability of a different sentence if counsel had
21
presented additional lay testimony about Speer’s troubled background. Speer has not
22
demonstrated that the discrepancy between what was presented in mitigation and what
23
could have been presented was of sufficient magnitude to establish prejudice. See
24
Stankewitz, 365 F.3d at 716. The omitted mitigating evidence is largely inconclusive or
25
cumulative, and does not change the “sentencing profile” offered to the jury. Strickland,
26
466 U.S. at 700; see Babbitt, 151 F.3d at 1175 (finding no prejudice where counsel failed
27
to present cumulative mitigating evidence); Van Hook, 558 U.S. at 12 (finding no prejudice
28
where new evidence added “nothing of value”). The cumulative nature of the evidence
Conclusion
- 86 -
1
offered about Speer’s background diminishes the likelihood of prejudice. See Leavitt, 646
2
F.3d at 615; Rhoades, 638 F.3d at 1051.
3
As the Ninth Circuit has observed, “There will always be more documents that could
4
be reviewed, more family members that could be interviewed and more psychiatric
5
examinations that could be performed.” Leavitt, 646 F.3d at 612. In Speer’s case, the record
6
demonstrates that even if counsel had conducted a more in-depth investigation, significant
7
and credible new mitigation evidence was not available.
8
The PCR court’s denial of this claim was neither contrary to nor an unreasonable
9
application of Strickland, nor was it based on an unreasonable determination of the facts.
10
Speer’s claim that counsel performed ineffectively during the penalty phase of his trial by
11
failing to investigate and present readily available mitigating evidence from lay witnesses
12
is denied as meritless under the doubly deferential standard of Strickland and AEDPA. See
13
Richter, 562 U.S. at 105.
14
2.
Unexhausted claims
15
Speer also alleges that counsel performed ineffectively by failing to “present
16
effective expert testimony on Speer’s difficult history as a victim of domestic and sexual
17
violence, neurocognitive deficits, and complex trauma”; to present evidence of co-
18
defendant Brian Womble’s mental illness; to “protect Speer from repeated instances of
19
prosecutorial misconduct”; and to raise appropriate objections during penalty-phase jury
20
“deadlock.” (Doc. 13 at 150–56.) Speer acknowledges that he did not raise these claims in
21
state court. He contends that their default is excused under Martinez by the ineffective
22
assistance of PCR counsel.
23
a.
Trauma expert
24
Speer argues that Dr. Stewart “was not adequately prepared to testify,” “misstated
25
the evidence and failed to articulate how a complex trauma presentation differs from
26
traditional PTSD.” (Doc. 13 at 151.) Instead, according to Speer, “[t]he jury needed to hear
27
from an expert in complex trauma (including sexual abuse) who could synthesize Speer’s
28
extraordinary history in a meaningful and accurate way.” (Id.) Speer contends that if
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1
counsel had performed effectively they would have done a better job of preparing Dr.
2
Stewart or offered a different expert, one who would have “established a connection
3
between Speer’s mental state, his family background, his neurological defects, and the
4
offense.” (Id. at 152.) Such testimony, according to Speer, would have prevented the
5
Arizona Supreme Court from assigning minimal weight to his mitigating evidence. (Id.)
6
Speer does not contest Dr. Stewart’s expertise, nor does he specify what counsel
7
could have done to better prepare Dr. Stewart for his testimony. As discussed above, Dr.
8
Stewart testified at length about the causes and effects of Speer’s trauma, his mental state,
9
abusive background, and neurological defects, and their relationship to the offense. In
10
essence, then, Speer’s criticism is that Dr. Stewart was not a more effective witness, but
11
“[t]he Constitution does not entitle a criminal defendant to the effective assistance of an
12
expert witness.” Wilson v. Greene, 155 F.3d 396, 401 (4th Cir. 1998); see Harris v.
13
Vasquez, 949 F.2d 1497, 1518 (9th Cir. 1991); Silagy v. Peters, 905 F.2d 986, 1013 (7th
14
Cir. 1990); McGill v. Ryan, No. CV-12-01149-PHX-JJT, 2019 WL 160732, at *12 (D.
15
Ariz. Jan. 10, 2019), aff’d sub nom. McGill v. Shinn, 16 F.4th 666. Therefore, “while there
16
may be a duty to seek out psychiatric evaluation of a client where appropriate, there is no
17
duty to ensure the trustworthiness of the expert’s conclusions.” Babbitt, 151 F.3d at 1174;
18
cf. Hendricks v. Calderon, 70 F.3d 1032, 1038 (9th Cir. 1995) (“To . . . impose a duty on
19
attorneys to acquire sufficient background material on which an expert can base reliable
20
psychiatric conclusions, independent of any request for information from an expert, would
21
defeat the whole aim of having experts participate in the investigation.”).
22
The allegation that trial counsel performed ineffectively with respect to Dr.
23
Stewart’s selection and performance as an expert witness is meritless. PCR counsel, in turn,
24
did not perform ineffectively by failing to raise this claim. See Atwood, 870 F.3d at 1060
25
(“If the ineffective assistance of trial counsel claim lacks merit, then the state habeas
26
counsel would not have been deficient for failing to raise it.”); Runningeagle, 825 F.3d at
27
982 (explaining that to find prejudice based on PCR counsel’s failure to raise a trial-level
28
ineffective assistance of counsel claim, the court “must also find a reasonable probability
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1
that the trial-level IAC claim would have succeeded had it been raised”). There is not a
2
reasonable probability that the results of the PCR proceedings would have been different
3
if counsel had raised this claim. Speer therefore cannot show “cause” under Martinez for
4
the claim’s default. This allegation remains procedurally defaulted and barred from federal
5
review.
Brian Womble’s mental illness
6
b.
7
During the penalty phase of Speer’s trial, counsel argued that Brian Womble’s
8
mental illness constituted a mitigating circumstance. Speer alleges that counsel performed
9
ineffectively by failing to support the circumstance with testimony from Womble’s family
10
that Brian suffered from lifelong depression.23 (Doc. 13 at 153–54.)
11
During the guilt phase of trial, a counselor at Terros, a provider of mental health
12
services, testified that she evaluated Brian Womble on May 24, 2002, the day before the
13
murder, at 4:00 p.m. (RT 1/10/07 at 142.) Although he did not appear depressed, he told
14
her “I want to kill myself and before I do I’m going to kill some other people too.” (Id. at
15
143.) She and another therapist met with Brian for an hour and a half; before he left he
16
retracted his suicide threat and signed a “no harm” contract. (Id.)
17
Speer notes that during his phone calls with his step-brother, Brian talked about
18
being “sick” and having “psychological problems.” (See Doc. 13 at 154.) In another call,
19
Al Heitzman describes Brian as suffering “severe depression” and needing counseling. (Id.)
20
The jurors heard these recordings, however, so they were aware Brian’s mental health was
21
an issue. Lay testimony from family members about Brian being suicidal and “not himself”
22
in the weeks leading up to the crime would have been cumulative to this evidence and the
23
testimony of the Terros counselor.
24
In addition, as Respondents suggest, it is not apparent that evidence that Brian
25
Womble suffered from mental illness would mitigate Speer’s involvement in the murder.
26
Mental illness could have been viewed as making Brian an even easier target for Speer to
27
On independent review of Speer’s death sentence, the Arizona Supreme Court did
not discuss Brian Womble’s mental illness as one of the mitigating circumstances proved
by a preponderance of the evidence. See Speer, 221 Ariz. at 464–65, 212 P.3d at 802–03.
28
23
- 89 -
1
manipulate into carrying out the shooting in accord with the State’s theory of the crime.
2
The allegation that trial counsel performed ineffectively with respect to Brian
3
Womble’s alleged mental illness is without merit. PCR counsel therefore did not perform
4
ineffectively by failing to raise this claim. See Atwood, 870 F.3d at 1060; Runningeagle,
5
825 F.3d at 982. There is not a reasonable probability that the results of the PCR
6
proceedings would have been different if the claim had been raised. Speer therefore cannot
7
show “cause” under Martinez for the claim’s default. This allegation remains procedurally
8
defaulted and barred from federal review.
9
c.
Prosecutorial misconduct
10
Speer alleges that counsel performed ineffectively during the penalty phase by
11
failing to object and seek appropriate remedies for prosecutorial misconduct. (Doc. 13 at
12
154–55.) He argues that the prosecutor committed misconduct by using Speer’s “mental
13
health history”—namely, the antisocial personality diagnosis arrived at by Dr . Bayless—
14
as “non-statutory aggravating evidence.” (Doc. 13 at 127.) He argues the prosecutor
15
solicited and failed to correct false testimony from Dr. Bayless about the amount of time
16
he spent with Speer during his examinations. (Id. at 131–33.) Finally, he contends that the
17
prosecutor committed misconduct during her closing argument by using inflammatory
18
language, misstating the evidence, and making improper comments. (Id. at 133.)
19
Defense counsel did not perform ineffectively. Counsel’s strategy with respect to
20
objections is entitled to deference under Strickland. 466 U.S. at 689; see Cunningham, 704
21
F.3d at 1160 (explaining that “withholding objections . . . is acceptable defense strategy”).
22
“[A] few missed objections alone, unless on a crucial point, do not rebut the strong
23
presumption that counsel’s actions (or failures to act) were pursuant to his litigation
24
strategy and within the wide range of reasonable performance.” United States v. Mejia–
25
Mesa, 153 F.3d 925, 931 (9th Cir. 1998); see United States v. Necoechea, 986 F.2d 1273,
26
1281 (9th Cir. 1993). Counsel may reasonably decide to “refrain from objecting during
27
closing argument to all but the most egregious misstatements by opposing counsel on the
28
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1
theory that the jury may construe their objections to be a sign of desperation or hyper-
2
technicality.” United States v. Molina, 934 F.2d 1440, 1448 (9th Cir. 1991).
3
i.
Comments on Speer’s mental health
4
Speer contends that the prosecutor committed misconduct during her penalty-phase
5
arguments by emphasizing the negative implications of his diagnosis of antisocial
6
personality disorder—that Speer was deceitful, manipulative, uncaring, and dangerous.
7
(Doc. 13 at 128–30.) The comments did not constitute prosecutorial misconduct, so counsel
8
did not perform ineffectively by failing to object. See, e.g., Dubria v. Smith, 224 F.3d 995,
9
1003–04 (9th Cir. 2000); Boggs v. Shinn, No. CV-14-02165-PHX-GMS, 2020 WL
10
1494491, at *51 (D. Ariz. Mar. 27, 2020). As Respondents note, A.R.S. § 13–752(G)
11
provides that the State “may present any evidence that demonstrates that the defendant
12
should not be shown leniency including any evidence regarding the defendant’s character,
13
propensities, criminal record or other acts.” The prosecutor was therefore entitled to argue
14
that Speer’s diagnosis of antisocial personality disorder rebutted the defense arguments
15
that he should be shown leniency. See State v. Carlson, 237 Ariz. 381, 396–97, 351 P.3d
16
1079, 1094–95 (2015) (explaining that while it is improper to argue a nonstatutory
17
aggravating factor, “[t]he prosecutor may, however, argue any circumstances that rebut the
18
mitigation evidence proffered by the defense.”)
19
The prosecutor’s arguments about the elements of an antisocial personality were
20
also reasonable inferences from that diagnosis as testified to by Dr. Bayless. See United
21
States v. Tucker, 641 F.3d 1110, 1120 (9th Cir. 2011) (“Prosecutors can argue reasonable
22
inferences based on the record, and have considerable leeway to strike hard blows based
23
on the evidence and all reasonable inferences from the evidence.”) (additional quotations
24
omitted); United States v. Blueford, 312 F.3d 962, 968 (9th Cir. 2002) (“It is certainly
25
within the bounds of fair advocacy for a prosecutor, like any lawyer, to ask the jury to draw
26
inferences from the evidence that the prosecutor believes in good faith might be true.”).
27
Dr. Bayless testified, for example, that the prognosis for those with antisocial personality
28
disorder is poor and that the condition cannot be treated with medication. (RT 3/21/07 at
- 91 -
1
44–45.) He also testified that Speer was capable of conforming his conduct to the
2
requirements of law despite have an antisocial personality disorder. (Id. at 45.)
3
ii.
Dr. Bayless’s testimony
4
Speer asserts that the prosecutor violated Napue v. Illinois, 360 U.S. 264 (1959), by
5
soliciting and failing to correct false testimony from Dr. Bayless about the amount of time
6
he spent examining Speer and about the results of his examinations. (Doc. 13 at 131.) Speer
7
alleges that defense counsel performed ineffectively by failing to object to this testimony.
8
The state may not knowingly use false testimony to obtain a conviction. Napue v.
9
Illinois, 360 U.S. 264, 269 (1959). A Napue violation consists of three components: (1) the
10
testimony was actually false, (2) the prosecution knew or should have known that the
11
testimony was actually false, and (3) the false testimony was material. See Hayes v. Ayers,
12
632 F.3d 500, 520 (9th Cir. 2011). An error is material where “there is any reasonable
13
likelihood that the false testimony could have affected the judgment of the jury.” United
14
States v. Agurs, 427 U.S. 97, 103 (1976).
15
Dr. Bayless testified that he examined Speer over two consecutive days. (RT
16
3/20/07 at 77.) According to Bayless, he spent “maybe” four hours with Speer on August
17
14, 2006, performing a clinical interview and administering the MMPI-2.24 (Id.) He
18
“guesstimate[ed]” that on the 15th he “spent probably an hour to an hour and a half” with
19
Speer. (Id.) On that day he administered two tests, the Shipley Institute of Living Scale and
20
the Williamson Sentence Completion Test. (Id. at 76–77.)
21
Speer contends that jail visitor logs indicate that Bayless visited Speer for only 30
22
minutes on each of those days. (Doc. 13 at 131–33; see Doc. 23-3, Ex. 8.) He asserts that
23
the prosecutor was aware of the jail logs and therefore knew Bayless’s testimony was false.
24
(Id.) Speer alleges that his counsel performed ineffectively in failing to challenge this
25
aspect of Dr. Bayless’s testimony. (Id. at 154–55.)
26
The apparent inconsistency between the jail records and Dr. Bayless’s testimony is
27
not sufficient to support a Napue violation because the jail records do not appear to
28
24
Minnesota Multiphasic Personality Inventory.
- 92 -
1
accurately document the length of visits. In the records provided by Speer, the duration of
2
every visit in the jail logs is listed as precisely 30 or 40 minutes. (See Doc. 23-9, Ex. 41.)
3
For example, on 1/10/05, Dr. Stewart, one of Speer’s experts, is documented as visiting
4
Speer from 1329 to 1409. (Id.) In his report, however, Dr. Stewart stated that he
5
“interviewed Mr. Speer at the Maricopa County Jail on January 10, 2005, for half a day.”
6
(Doc. 23-10, Ex. 51 at 1) (emphasis added). Another defense expert, Dr. Parrish, testified
7
that she administered the Halstead-Reitan Battery, a five-hour test, over five different
8
sessions with Speer, breaking up the test sessions due to Speer’s difficulty concentrating
9
and sometimes being interrupted when the interview room became unavailable. (RT
10
2/27/07 at 120, 126–27; see Doc. 23-10, Ex. 51.) The jail records, however, list five visits
11
each lasting exactly 40 minutes.25 (See Doc. 23-9, Ex. 41.)
12
This information suggests that while the jail records document Speer’s visitors, they
13
do not accurately depict the length of each visit, and therefore Dr. Bayless did not testify
14
falsely when he estimated that he spent about four hours with Speer administering the
15
MMPI-2—any more than Dr. Stewart inaccurately reported spending half a day with Speer
16
when the jail record listed only a 40 minute visit.
17
While Speer notes that the prosecutor referred to the jail records when questioning
18
other witnesses, she used the records to establish the fact of the visits, not their duration.
19
Given the information just discussed, it is not reasonable to say that the prosecutor knew
20
Dr. Bayless’s testimony was untrue.
21
Finally, Speer engages in pure speculation when he asserts that the prosecutor knew
22
of, and should have corrected, Dr. Bayless’s “misleading” testimony about the results of
23
the tests he administered.26 (Doc. 13 at 133.)
24
There was no Napue violation. Speer’s counsel therefore did not perform
25
ineffectively in failing to object. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005)
26
27
28
25
The visits occurred on 12/6/04, 12/7/04, 12/23/04, 1/3/05, and 1/11/05.
Speer asserts that Dr. Bayless “gave incorrect scores” with respect to various
scales on the MMPI. (Doc. 13 at 133.)
26
- 93 -
1
(“[T]rial counsel cannot have been ineffective for failing to raise a meritless objection.”);
2
Rupe, 93 F.3d at 1445.
3
4
5
iii.
Prosecutor’s closing argument
Speer alleges that counsel performed ineffectively in response to the prosecutor’s
misconduct during her closing argument. (Doc. 13 at 154–55; see id. at 133–36.)
6
(a)
Denigrating the mitigating evidence and the defense strategy
7
Speer first contends that the prosecutor committed misconduct by attacking the
8
mitigating evidence as untrue and manipulative and accusing the defense of appealing to
9
“juror guilt.” (Doc. 13 at 134.) Speer alleges that counsel performed ineffectively by failing
10
to object to this purported misconduct. (Id. at 154–55.)
11
The prosecutor argued that Speer’s mitigation evidence was untrue, “exaggerated,”
12
or “nonsense.” (RT 3/27/07, a.m., at 6.) “[T]he rest of it,” she continued, “is presented to
13
make you feel responsible for the fact the defendant committed a murder under
14
circumstances that make him eligible for the death penalty.” (Id.) In another passage cited
15
by Speer, the prosecutor addressed the defense argument that executing Speer would affect
16
his son. (Doc. 13 at 134.) She characterized that argument as “pile on the juror guilt. Feel
17
guilty if you impose the death penalty because of what it will do to Cedric.” (RT 3/27/07,
18
a.m., at 9.)
19
The Ninth Circuit has found that a prosecutor commits misconduct when he
20
denigrates the defense as a sham. United States v. Sanchez, 176 F.3d 1214, 1225 (9th Cir.
21
1999) (“The prosecutor committed misconduct in vouching for his witnesses, denigrating
22
the defense as a sham, and arguing that it was the jury’s duty to find the defendants
23
guilty.”). Here, the prosecutor did not denigrate defense counsel; rather, she criticized
24
counsel’s tactics in choosing to present certain mitigating evidence. See United States v.
25
Bernard, 299 F.3d 467, 487–88 (5th Cir. 2002) (rejecting a challenge to a prosecutor’s
26
closing argument that accused the defense of trying “to get someone on this jury to . . . take
27
a red herring”); see also United States v. Vazquez–Botet, 532 F.3d 37, 56–59 (1st Cir.
28
2008) (finding no misconduct where prosecutor characterized defense counsel as
- 94 -
1
“desperate lawyers” seeking to “cloud the issues”); United States v. Sayetsitty, 107 F.3d
2
1405, 1409 (9th Cir. 1997) (“Criticism of defense theories and tactics is a proper subject
3
of closing argument.”).
4
Some courts have found that a prosecutor’s “guilt trip” comments approached or
5
crossed the line of improper argument but determined that any error was harmless, in part
6
because the comments were invited by the defense. See Harmon v. Sharp, 936 F.3d 1044,
7
1080 (10th Cir. 2019) (finding that defense counsel’s improper argument that defendant’s
8
daughter deserved mercy because she loved her father weighed against a finding that
9
defendant was harmed by prosecutor’s remarks, including his argument that defendant used
10
his family members as “human shields” at sentencing); Cuesta-Rodriguez v. Carpenter,
11
916 F.3d 885, 908 (10th Cir. 2019) (finding the defense invited the comments by
12
“attempt[ing] to elicit sympathy for Cuesta-Rodriguez’s family—his son in particular—
13
based on the pain they would feel if he received the death penalty”); see also People v.
14
Krebs, 8 Cal. 5th 265, 342, 452 P.3d 609, 668 (2019) (finding no misconduct where
15
prosecutor argued that the defense was “trying to deflect . . . responsibility” and “lay some
16
kind of a guilt trip on you for what their client truly deserves”).
17
Here, defense counsel argued that the effect of Speer’s execution on Cedric was a
18
mitigating circumstance (RT 3/26/07 at 129), inviting the prosecutor’s challenge to the
19
circumstance. In addition, counsel was given an opportunity in his rebuttal closing
20
argument to address the prosecutor’s comments about Cedric. (RT 3/27/07, p.m., at 7–8.)
21
Any prejudice related to the purported misconduct was therefore limited. See Hein v.
22
Sullivan, 601 F.3d 897, 912–13 (9th Cir. 2010) (citing Darden, 477 U.S. at 182).
23
In any event, the issue is not whether the prosecutor’s comments constituted
24
misconduct but whether trial counsel performed at a constitutionally ineffective level by
25
failing to object. They did not. As the Ninth Circuit has explained, “absent egregious
26
misstatements, the failure to object during closing argument and opening statement is
27
within the ‘wide range’ of permissible professional legal conduct.” Necoechea, 986 F.2d
28
at 1281 (noting that “many lawyers refrain from objecting during opening statement and
- 95 -
1
closing argument”); see Dubria, 224 F.3d at 1003–04 (finding that failure to object to
2
closing argument in which prosecutor referred to defendant as “the biggest liar you’ve ever
3
encountered” and defendant’s story as a “piece of garbage” did not constitute deficient
4
performance); Cunningham, 704 F.3d at 1159 (finding that failure to object to the
5
prosecutor’s comments, “possibly to avoid highlighting them, was a reasonable strategic
6
decision”). Speer’s counsel could reasonably have determined that objecting to the
7
prosecutor’s comments would have highlighted them unnecessarily.
8
(b)
Misstating facts
9
Speer asserts that the prosecutor committed misconduct when she falsely suggested
10
that Speer was not Cedric’s father and accused him of denying paternity. (Doc. 13 at 135.)
11
In fact, the record showed that Speer did question paternity. In one of the letters he wrote
12
to Al Heitzman, which was read into the record the day before the State’s closing argument,
13
Speer wrote: “Honestly, Al, I don’t even know if Cedric is really my son because Veronica
14
was cheating on me the whole time we were together, so at this point in time, a DNA test
15
is mandatory.” (RT 3/26/07 at 48.) Defense counsel did not perform ineffectively by failing
16
to object to the prosecutor’s statement because it was supported by the record and not
17
improper.
18
Speer also contends that the prosecutor misled the jury by stating that Speer had a
19
different CPS caseworker “every time” when in fact several caseworkers saw Speer and
20
his family on more than one occasion. (Doc. 13 at 135) (citing RT 3/27/07, a.m., at 23).
21
There was no misconduct for defense counsel to object to. The prosecutor was
22
responding to the defense argument that Speer should have been removed from his
23
dysfunctional home. The prosecutor was entitled to draw the inference, based on the fact
24
that several CPS workers investigated Speer’s family but did not seek his removal, that the
25
abuse and neglect were less severe than Speer alleged. See Tucker, 641 F.3d at 1120
26
(explaining that “[p]rosecutors can argue reasonable inferences based on the record”).
27
28
(c)
Misstating the law
Speer asserts that the prosecutor misstated the law by arguing that evidence had to
- 96 -
1
be causally connected to the murder in order to be mitigating. (Doc. 13 at 135–36.) He also
2
argues that the prosecutor misstated the law by arguing that “mercy for this crime isn’t
3
appropriate” and “[t]here is nothing about this crime that calls out for mercy for the
4
defendant.” (Id. at 136) (quoting RT 3/27/07, a.m., at 68, 72). According to Speer, these
5
comments misstated the law because “the question of mercy is directed toward the
6
defendant, not the crime.” (Id.) There was no misconduct.
7
Speer proposed mercy as a mitigating circumstance. The prosecutor was entitled to
8
respond to that argument. See State v. Anderson, 210 Ariz. 327, 350, 111 P.3d 369, 392
9
(2005) (“Once the jury has heard all of the defendant’s mitigation evidence, there is no
10
constitutional prohibition against the State arguing that the evidence is not particularly
11
relevant or that it is entitled to little weight.”). It was not improper to argue that the nature
12
of the crime and Speer’s role in it—selfishly manipulating his younger brother into
13
shooting a sleeping couple in an attempt to eliminate them as witnesses to a prior crime—
14
did not support a call for mercy. Speer’s counsel did not perform ineffectively by failing
15
to object.
16
The allegation that trial counsel performed ineffectively in responding to the
17
purported misconduct is without merit. PCR counsel therefore did not perform
18
ineffectively. See Atwood, 870 F.3d at 1060; Runningeagle, 825 F.3d at 982. There is not
19
a reasonable probability that the results of the PCR proceedings would have been different
20
if counsel had raised this claim. Speer therefore cannot show “cause” under Martinez for
21
the claim’s default. This allegation remains procedurally defaulted and barred from federal
22
review.
23
d.
Jury deadlock instruction
24
Finally, Speer alleges that counsel performed ineffectively by failing to raise
25
“proper objections” when the jury deadlocked during the penalty phase and the trial court
26
provided an impermissibly coercive jury instruction. (Doc. 13 at 155.) The record does not
27
support this claim.
28
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Prior to deliberations in the penalty phase of Speer’s trial, the court provided the
following jury instruction27:
. . . If you feel you’ve reached an impasse, simply let the court know without
disclosing the numerical results of any vote.
Each juror has a duty to consult with one another to deliberate with a view to
reaching an agreement, if it can be done without violence to any individual
judgment. No juror should ever surrender his or her honest conviction as to
the weight or effect of the evidence solely because of the opinion of other
jurors or for the purpose of reaching a verdict.
However, you may want to identify areas of agreement and disagreement and
discuss the law and the evidence as they relate to the areas of disagreement.
Then and only then, if you still disagree, you may wish to tell the attorneys
and me which issues, questions, law, or facts you would like us to assist you
with. If you decide to follow this suggestion, please write down the issues,
questions, law, or facts on which we can possibly help.
(RT 3/27/07, p.m., at 26–27.) The court had provided similar instructions, which it
referred to as a “dynamite” instruction (RT 3/28/07 at 4), prior to the guilt and aggravation
phases of Speer’s trial. (RT 1/17/07 at 187–88; RT 1/24/07 at 52; RT 1/29/07 at 128–29.)
After two and a half hours of penalty-phase deliberations, the jury foreperson sent
the court a note stating “We currently are unable to reach an unaminous [sic] verdict, what
do we do now?” (RT 3/28/07 at 4; EIR 734.) Twenty minutes later, the jury foreperson sent
another note, which asked “If we can’t reach an unaminous [sic] verdict . . . what happens
to the sentencing?” (RT 3/28/07 at 4; EIR 735.)
The judge and the parties discussed the jury’s questions. (RT 3/28/07 at 4–5.) With
regard to the second question, the judge stated, “I don’t even want to get involved with [it].
27
The instruction was based in part on Rule 22.4 of the Arizona Rules of Criminal
Procedure, which provided:
24
25
26
27
If the jury advises the court that it has reached an impasse in its deliberations, the court
may, in the presence of counsel, inquire of the jurors to determine whether and how court
and counsel can assist them in their deliberative process. After receiving the jurors’
response, if any, the judge may direct that further proceedings occur as appropriate.
28
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1
We told them before that they’re not to concern themselves with any sentence if it’s less
2
than death because that’s my province, not theirs.” (Id. at 5.) The court ultimately provided
3
no answer to the question, telling the jury it was not relevant. (Id. at 21.)
4
With respect to the first question, the judge explained that he was inclined to provide
5
the dynamite instruction again. (Id. at 5–6.) The court wanted to ask the jurors “what their
6
area of disagreement is so that perhaps they can give us a little further guidance” (Id. at 6.)
7
Defense counsel objected, arguing “It’s not possible you can artfully do that. You’re getting
8
too involved.” (Id.) Counsel objected that the judge was “pushing them [the jurors]” and
9
that they should be questioned only as to “whether or not they think that further
10
deliberations would be worthwhile or productive.” (Id. at 5.) As the judge continued to
11
consider providing the dynamite instruction again, defense counsel repeatedly objected,
12
noting that the jury had already heard the instruction at least three times and insisting that
13
the only permissible question was whether additional deliberations would be productive.
14
(See id. at 9, 11, 13, 18.)
15
The court suggested the following language: “If you recall before you began your
16
deliberations, I told you that you might want to identify for us any areas of agreement and
17
disagreement and tell the attorneys and me whether there are issues, questions, law or facts
18
you’d like us to assist you with.” (Id. at 17–18.) Defense counsel again objected to the
19
inclusion of language about “assisting” the jury. (Id. at 18–20.) The judge finally proposed
20
the following script: “I previously told you that if you couldn’t agree on a verdict you might
21
want to tell the attorneys and me which issues you would like us to assist you with. Would
22
you like me to do that or do you feel that further deliberations would not be productive?”
23
(Id. at 20–21.) This time, counsel stated “Okay with us” and the instruction was provided
24
to the jury in writing. (Id. at 21; see EIR 734.)
25
The jury then deliberated for 45 minutes more before adjourning for the day. (EIR
26
740.) It began deliberations the next morning around 10:00 and returned with its death
27
verdict at 11:30. (EIR 743.)
28
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1
Speer alleges that counsel performed ineffectively when they “acquiesced” to the
2
final version of the court’s instruction. (Doc. 13 at 156.) This argument is not persuasive.
3
See State v. Kuhs, 223 Ariz. 376, 384–86, 224 P.3d 192, 200–02 (2010) (discussing factors
4
to consider in assessing coerciveness of impasse instruction). First, as just noted, counsel
5
did object, repeatedly, to any instruction offering to assist the jury. Next, the instruction
6
given was likely not coercive under Arizona law, so further objection would have been
7
futile. See James, 24 F.3d at 27. The court did not know the numerical split of the jury, and
8
the jurors had been deliberating for only two and a half hours, after a five month trial, when
9
they sent the note. These factors support a finding that the instruction was not coercive.
10
Kuhs, 223 Ariz. at 384–86, 224 P.3d at 200–02 .
11
This claim of ineffective assistance of counsel is meritless. PCR counsel did not
12
perform ineffectively by failing to raise it, so the claim remains defaulted and barred from
13
review.
14
3.
Conclusion
15
Speer’s trial counsel did not perform at a constitutionally ineffective level in the
16
penalty phase of trial. The PCR court’s denial of the exhausted portion of this claim was
17
reasonable under the doubly deferential standard of Strickland and AEDPA. See Richter,
18
562 U.S. at 105. With respect to the unexhausted allegations, Speer has not established
19
cause and prejudice to excuse their default under Martinez so they remain barred from
20
federal review. Claim 14 is therefore denied.
21
Claims 15 and 16:
22
In Claim 15, Speer alleges that counsel performed ineffectively by stipulating to
23
aggravating factors. (Doc. 13 at 156.) In Claim 16, he alleges that counsel performed
24
ineffectively by “admitting irrelevant prior convictions” (Id. at 161.) Speer raised these
25
claims during the PCR proceedings. The PCR court’s denial of the claims was neither
26
contrary to nor an unreasonable application of clearly established federal law.
27
28
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1
Claim 15
2
The State noticed four aggravating factors. Speer’s counsel stipulated to three of
3
them: previous commission of a serious offense under A.R.S. § 13–703(F)(2); committing
4
the offense in an especially heinous, cruel, or depraved manner, (F)(6); and committing the
5
offense while on release or probation. (F)(7)(a).28 As the PCR court noted, the (F)(2) and
6
(7) factors “were easily proven with documentary evidence from Superior Court files”
7
while (F)(6) “had been proven in connection with the guilt phase evidence as witness
8
elimination was the motive for the premeditated murder.” (ME 5/20/15 at 14.) The fourth
9
aggravating factor, to which counsel did not stipulate, was creating a grave risk of death to
10
another person in the commission of the offense under (F)(3).
11
Speer contends that by stipulating to the aggravating factors, counsel’s performance
12
violated both Strickland and United States v. Cronic, 466 U.S. 648 (1984). (Doc. 13 at
13
156–59.) This argument is unpersuasive.
14
The Arizona Supreme Court independently reviewed the aggravating factors and
15
found that the three to which counsel stipulated were proved beyond a reasonable doubt.
16
Speer, 221 Ariz. at 463–64, 212 P.3d at 801–02. The court found that the (F)(3) factor was
17
not proved. Id. at 460, 463, 212 P.3d at 798, 801.
18
In rejecting this ineffective assistance claim, the PCR court found neither deficient
19
performance nor prejudice. The court first noted that Speer acknowledged that in conceding
20
the aggravating factors trial counsel made a strategic decision, which PCR counsel labeled
21
“confession and avoidance.” (ME 5/20/15 at 15.) The court rejected Speer’s argument that
22
such a strategy is never “appropriate in the penalty phase of a capital trial.” (Id.) Citing
23
Strickland, the court explained that it would “not second-guess the strategic decisions of
24
trial counsel” and that:
The record here supports the conclusion that counsel made a strategic
decision to stipulate to three of the four aggravating factors; the fourth,
25
26
27
28
The Court refers to Arizona's statutes in effect at the time of Speer’s sentencing.
Arizona’s capital sentencing statutes have since been renumbered. See A.R.S. §§ 13-751–
59.
28
- 101 -
1
(F)(3), he challenged, preserving the issue for appeal, and the Supreme Court
found in Defendant’s favor. The Supreme Court’s decision supports trial
counsel’s strategic decision to challenge only one of the aggravating factors.
2
3
In further support of this conclusion, the Court notes the strength of the
aggravating factors and the relative ease with which each could be proved.
The Court is aware that in a death penalty case such as this, trial counsel is
initially called upon to argue his client’s lack of guilt, and then must accept
a finding of guilt. Trial counsel is then called upon to seek leniency from the
same jury who has just rejected counsel’s presentation. Counsel may
strategically determine that credibility may be built at the aggravation phase
by conceding matters that are a matter of record or that have already been
proved.
4
5
6
7
8
9
10
Such a concession, in the form of a stipulation, is within a tactical decision
reasonably made by trial counsel. . . .
11
(Id.) The court then addressed Speer’s argument that trial counsel’s performance satisfied
12
the standard set out in Cronic:
13
Cronic is violated when counsel is either totally absent or is prevented from
assisting the accused. In the instant case, trial counsel was neither absent nor
prevented from assisting his client; rather, by entering into a stipulation
counsel made a tactical decision with which Defendant disagrees. Since there
was overwhelming proof of these three aggravating factors, challenging them
would have been “a useless charade.”
14
15
16
17
18
19
(Id. at 16) (quoting Cronic, 466 U.S. at 657, n. 19). Finally, the Court determined that Speer
was not prejudiced by trial counsel’s stipulation to the aggravators:
In the Court’s view, the outcome would have been the same had trial counsel
required the State to prove the three aggravating factors that instead were
stipulated to. Defendant’s prior conviction for a serious offense and his
parole status were easily proved by court documents and Defendant’s
Arizona Department of Corrections history. In order for the jury to convict
Defendant of premeditated murder, they had to conclude that his motivation
was to kill witnesses. On that front, the evidence in the guilt phase was
overwhelming through Defendant’s own telephone conversations.
20
21
22
23
24
25
Challenging these aggravating factors would not have led to a different result
and, thus, no prejudice can attach by virtue of trial counsel’s strategic
decision to stipulate to the (F)(2), (6), and (7) aggravating factors.
26
27
28
(Id.)
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The PCR court’s ruling was neither contrary to nor an unreasonable application of
Strickland and Cronic. In Florida v. Nixon, the Supreme Court described Cronic as a
narrow exception to Strickland’s holding that a defendant who asserts
ineffective assistance of counsel must demonstrate not only that his
attorney’s performance was deficient, but also that the deficiency prejudiced
the defense. Cronic instructed that a presumption of prejudice would be in
order in “circumstances that are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is unjustified.”
543 U.S. 175, 190 (2004) (quoting Cronic, 466 U.S. at 658).
Cronic held that the application of presumptive prejudice is appropriate when “there
[is] a breakdown in the adversarial process,” such that “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.” 466 U.S. at 659, 662. The Court
made clear, however, that the Cronic exception is very narrow. “When we spoke in Cronic
of the possibility of presuming prejudice based on an attorney’s failure to test the
prosecutor’s case, we indicated that the attorney’s failure must be complete.” Bell v. Cone,
535 U.S. 685, 696–97 (2002); see United States v. Thomas, 417 F.3d 1053, 1057 (9th Cir.
2005) (explaining that in Cone “the Court emphasized that Cronic’s exception for failing
to test the prosecution’s case applies when the attorney’s failure to oppose the prosecution
goes to the proceeding as a whole—not when the failure occurs only at specific points in
the trial”).
Cronic is not applicable here. Counsel’s stipulation to the easily-proved aggravating
factors did not constitute a complete failure to test the State’s case. See Allerdice v. Ryan,
395 F.App’x 449, 451 (9th Cir. 2010) (finding that stipulation to certain facts did not meet
Cronic standard where counsel “offered evidence, cross-examined witnesses, elicited
favorable testimony, and presented a coherent if ultimately unsuccessful defense in closing
argument”); Pratt v. Conway, 151 F.App’x 582, 583 (9th Cir. 2005) (“[T]he decision
to stipulate to facts did not completely fail to subject the prosecution’s case to meaningful
adversarial testing.”). Speer’s counsel opposed the State’s case at every stage of trial,
including by successfully contesting one of the aggravating factors. Therefore Strickland,
not Cronic, provides the proper framework for analyzing this claim.
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1
As the PCR court found, under Strickland Speer cannot show he was prejudiced by
2
counsel’s stipulation to the three aggravating circumstances. There was not a reasonable
3
probability that the sentencing outcome would have been different if counsel had
4
challenged the aggravators, two of which, (F)(2) and (F)(7), were conclusively proved by
5
documentary evidence. The third factor, that the murder was especially heinous or
6
depraved, is satisfied where the purpose of the murder is witness elimination. See Speer,
7
221 Ariz. at 464, 212 P.3d at 802; State v. Johnson, 212 Ariz. 425, 439, 133 P.3d 735, 749
8
(2006). The evidence from Speer’s jail phone calls was overwhelming that the murder was
9
committed to eliminate the Sotos as witnesses.
10
Speer contends counsel failed to subject the aggravating factors to “meaningful
11
adversarial testing” (Doc. 13 at 159), but does not suggest what such testing would entail
12
let alone demonstrate that this unidentified challenge to the aggravators would have
13
resulted in a reasonable probability of a different sentence.29 A “cursory and vague” claim
14
of ineffective assistance is insufficient to establish a Strickland violation. See Greenway v.
15
Schriro, 653 F.3d 790, 804 (9th Cir. 2011); James, 24 F.3d. at 26. Speer fails therefore to
16
meet his burden under Strickland.
17
18
Claim 15 does not satisfy the doubly deferential standard governing ineffective
assistance claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S. at 15.
19
Claim 16
20
Speer alleges that counsel performed ineffectively by allowing evidence of two prior
21
convictions to be admitted in addition to the robbery conviction that was used to satisfy the
22
(F)(2) aggravating factor. (Doc. 13 at 159.)
23
24
25
26
27
28
29
In support of Claims 15 and 16, Speer cites the opinion of Michael Reeves, a
“Strickland expert” retained during the PCR proceedings. (Doc. 13 at 159, 160 n.19.) In
his declaration, dated October 24, 2013, Reeves summarily attests that trial counsel’s
performance in “admitting the aggravating factors” and “not filing a motion to preclude
irrelevant prior convictions” fell “below prevailing professional norms.” (PCR Pet., Ex. 2
at ¶¶ 13, 14.) The Court considers but accords little weight to these conclusory opinions.
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1
In his closing argument during the aggravation phase, defense counsel told the jury
2
that his client “was not a saint” and had two other prior convictions, for third-degree
3
burglary and resisting arrest. (RT 1/29/07 at 122–23.) Counsel raised the convictions
4
because they were referenced in documents that were going to be provided to the jury and
5
he “did not want them to hear about them or see them for the first time when they walked
6
into the jury room.” (Id. at 122.) Counsel cautioned the jurors, however, that they were
7
“not supposed to take them into account in making the determination” about the
8
aggravating factors. (Id. at 122–23.)
9
The PCR court denied Speer’s claim that counsel performed ineffectively by
10
admitting the additional convictions. The court repeated that in capital cases “trial counsel
11
is tasked with rebuilding credibility with the jury in order to seek leniency from the same
12
jury who has just rejected counsel’s guilt phase presentation.” (ME 5/20/15 at 16.) This
13
may be accomplished “by conceding damaging matters that are a matter of record and that
14
are likely to be proved by the State during the sentencing phase.” (Id.) The court explained
15
that it would not second-guess counsel’s strategic choice to “draw the sting”:
16
17
18
19
There is nothing inappropriate about such a decision because the jury was
going to hear evidence of certain prior convictions anyway since the State
alleged as aggravating factors that Speer was previously convicted of a
serious offense and was on release from prison at the time of the murder.
21
Trial counsel discussed the prior felony convictions with the jury because,
otherwise, the jury would hear it for the first time from the State. Such
concerns were totally justified and well within the prevailing professional
standards of reasonableness for counsel in a death penalty case to make.
22
(Id. at 16–17.) The court then found that Speer was not prejudiced by counsel’s
23
performance:
20
24
25
26
27
28
Whether disclosed by trial counsel during the aggravation phase, or by the
State in rebuttal to the issue of whether Defendant was deserving of leniency
at the penalty phase, the jury would learn at some point of the prior
convictions. Additionally, even if the convictions had been kept from the
jury, as trial counsel noted, the offenses were not serious offenses
(convictions for burglary and resisting arrest), such that any harm was
minimal in connection with the determination of the aggravating factors.
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1
(Id. at 17.)
2
This decision was neither contrary to nor an unreasonable application of Strickland
3
or Cronic. First, courts have recognized the strategic reasonableness of “drawing the sting”
4
from unfavorable information by revealing it before the prosecution does. See Smith v.
5
Spisak, 558 U.S. 139, 161 (2010) (Stevens J., concurring in part and concurring in the
6
judgment) (stating that it “is generally a reasonable” trial strategy “to draw the sting out of
7
the prosecution’s argument and gain credibility with the jury by conceding the weaknesses
8
of [counsel’s] own case”); see Pearson v. Wyoming Att’y Gen., 856 F.App’x 758, 763 (10th
9
Cir. 2021), cert. denied sub nom. Pearson v. Hill, 142 S. Ct. 454; Cave v. Sec’y for Dep’t
10
of Corr., 638 F.3d 739 (11th Cir. 2011).
11
As discussed above, counsel did not completely fail to challenge the State’s case, so
12
Cronic does not apply and Speer must prove prejudice from counsel’s handling of the
13
evidence of the additional convictions. The PCR court reasonably found that he failed to
14
do so. (ME 5/20/15 at 16.) Notwithstanding any action defense counsel may have taken,
15
the State would have introduced the convictions in rebuttal to any argument that Speer
16
deserved leniency. Additionally, given the aggravating factors that had been established,
17
there was no reasonable probability that the presence or absence of evidence of lesser
18
crimes would have affected Speer’s sentence.
19
20
Claim 16 fails to satisfy the doubly deferential standard that governs ineffective
assistance claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S. at 15.
21
Claim 17:
22
Speer alleges that trial counsel performed ineffectively in “permitting dissemination
23
of two doctor’s reports that were used by the state in the penalty phase.” (Doc. 13 at 163.)
24
At issue are pretrial reports of two experts who evaluated Speer and concluded that he had
25
malingered during their examinations. The PCR court denied this claim on the merits. (ME
26
5/20/15 at 20–21.)
27
At the time of Speer’s case, unless a defendant objected, Arizona law required a
28
capital defendant to be evaluated for intellectual disability, competency, and sanity at the
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1
time of the offense. See A.R.S. § 13–703.02(B); –703.03(A). The trial court appointed Dr.
2
Potts to evaluate Speer’s competency and Dr. Toma to evaluate Speer for intellectual
3
disability. (EIR 86; EIR 200, Ex. A.) Dr. Potts, in his report dated April 21, 2003, found
4
that Speer was “malingering.” (Id. at 2.) According to Dr. Potts, Speer “is attempting to
5
not only feign a mental illness, but also cognitive defects. He is making a cognitive choice
6
to not cooperate in the proceedings, and his malingering is to such an extent that it
7
overshadows other diagnostic possibilities.” (Id. at 2.) Dr. Potts concluded that Speer “is
8
clearly competent and can effectively assist his attorney in his defense, if he chooses.”
9
Speer’s counsel successfully moved to have Dr. Potts’s report sealed. (ME 5/6/03.)
10
As described in his report dated August 23, 2003, Dr. Toma administered the
11
Wechsler Adult Intelligence Scale–III, which resulted in a full-scale IQ score of 77. (EIR
12
200, Ex. B at 6.) This placed Speer in the borderline range of intellectual functioning, with
13
an IQ score of 70 or below being one of the criteria for a diagnosis of intellectual disability.
14
(Id.) However, like Dr. Potts, Dr. Toma found that Speer “attempted to malinger cognitive
15
deficits.” (Id.) His score of 77 was therefore a “gross underestimate of his true abilities,”
16
which were “more likely in the average range of intellectual functioning.” (Id. at 6, 7.)
17
In March 2005, counsel forwarded Dr. Toma’s report and test data to Dr. Parrish, at
18
her request. Counsel then moved for a competency evaluation pursuant to Rule 11 of the
19
Arizona Rules of Criminal Procedure. (EIR 199.)
20
Under Rule 11 proceedings, the defense must disclose reports of “mental health
21
experts who have personally examined a defendant or any evidence in the particular case,
22
together with the results of mental examinations and of scientific tests, experiments or
23
comparisons, including all written reports and statements, made by them in connection with
24
the particular case.” Ariz. R. Crim. Pro. 11.4(b). Prior to the hearing, the defense stipulated
25
to a number of exhibits, including the reports of Dr. Potts and Dr. Toma. (RT 1/12/06 at 6–
26
7.) Following the hearing, in January 2006, Speer was found competent. (ME 2/10/06; EIR
27
264.)
28
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1
As discussed above, at the penalty phase of trial, Speer presented mitigating
2
evidence from three experts, including Dr. Parrish, who testified that Speer suffered from
3
cognitive impairments. (See RT 2/27/07 at 119–51; RT 3/1/07 at 52–96; RT 3/8/07 at 23–
4
49.) In rebuttal, the State’s expert, Dr. Bayless, testified that he found support in the reports
5
of Drs. Potts and Toma for his diagnosis of antisocial personality disorder and for his
6
opinion that Speer would attempt to malinger mental illness when doing so would be to his
7
advantage. (RT 3/21/07 at 37–39.)
8
During the PCR proceedings, Speer alleged that counsel were ineffective in
9
permitting dissemination of the reports. (PCR Pet. at 64.) The court disagreed, first noting
10
that “[b]oth experts were appointed by the Court, not retained by trial counsel, which means
11
that the reports they generated were available to both sides.” (ME 5/20/15 at 20.) The court
12
then explained that the defense expert Dr. Parrish, who testified at the competency hearing
13
and at sentencing, used the raw data from Dr. Toma’s testing and therefore “trial counsel
14
were obligated to disclose Dr. Toma’s report and raw data to the State; otherwise, the State
15
would have had additional grounds to challenge the defense expert’s conclusions/diagnosis
16
as being based on incomplete information,” which “would have undermined the validity of
17
her opinion.” (Id.) The court held that Dr. Potts’s report was “likewise relevant and
18
discoverable” because Speer’s competency was at issue. (Id.) Since the reports were
19
available to both sides, “there can be no deficient performance by trial counsel in
20
disseminating the reports of both Dr. Toma and Dr. Potts to the prosecutor.” (Id.)
21
Even if counsel had “attempted to withhold the reports” of Drs. Potts and Toma, the
22
court would have ordered disclosure to the State because “the records were relevant to the
23
mental health mitigation Defendant offered at the penalty phase of his trial.” (Id.) The court
24
continued:
25
26
27
28
Defendant called three mental health experts who opined that he had PTSD,
a major depressive disorder, had substance abuse issues, had cognitive
impairment, learning disabilities, behavioral disorders, and emotional
problems. The purpose for presenting this mitigation evidence was to
convince the jury to give him leniency. Therefore, it was appropriate for the
State, through its expert, Dr. Bayless, to offer Dr. Toma’s and Dr. Potts’
- 108 -
1
2
3
4
5
6
opinions in rebuttal to present their opinions that Defendant was malingering.
Accordingly, their testimony was not unfairly prejudicial.
Whether to disclose or whether to await a court order is a tactical decision
reserved to trial counsel and, under these circumstances where an order
would have issued anyway, the tactical decision to disclose was reasonable.
Trial counsel’s actions do not demonstrate deficient performance. . . .
(Id. at 20–21.)
7
Finally, the court found that no prejudice arose from “the introduction of relevant
8
and admissible mitigation evidence in rebuttal to the thrust of Defendant’s mitigation. . . .”
9
(Id. at 21.) Accordingly, “the sentencing decision would have been no different had trial
10
counsel not provided Dr. Toma’s and Dr. Potts’ reports to the prosecution or objected to
11
their admission in the penalty phase.” (Id.)
12
Speer raises several arguments challenging the PCR court’s ruling that the State was
13
entitled to the reports. First he argues that Dr. Potts’s report and his opinion about Speer’s
14
competence were based in “part on statements that Speer made about the case and his
15
defense representation,” which it was impermissible for the prosecution to use.30 (Doc. 13
16
at 165–66.) Speer does not cite, and the Court cannot locate, any testimony based on the
17
information about the case that Speer shared with Dr. Potts. As reported by Dr. Potts, the
18
only statements Speer made about the charges he was facing were nonsensical responses
19
about stealing or eating pizza in someone’s house. (EIR 86; EIR 200, Ex. A at 3.) Speer
20
also argues, without any supporting authority, that the fact Dr. Potts’s report was sealed
21
30
22
23
24
25
26
27
Rule 11.4(a)(2) provides:
An expert’s report completed under Rule 11.3 must be made available to the
examined defendant and the State, except that any statement by the defendant
about the charged offense or any other charged or uncharged offense (or any
summary of such a statement) may be made available only to the defendant.
Upon receipt, court staff will copy and provide the expert's report to the court
and defense counsel. Defense counsel is responsible for editing a copy of the
report for the State. . . .
Ariz. R. Crim. P. 11.4
28
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1
affected whether it was discoverable by the state and that “trial counsel was under no
2
obligation to turn it over without a court order.” (Id. at 166.) The PCR judge, however,
3
who was also the trial judge, stated it would have ordered disclosure if the defense did not
4
turn over the report.
5
With respect to Dr. Toma’s report, Speer argues that it fell outside Rule 11
6
disclosure provisions because Toma was evaluating Speer for intellectual disability rather
7
than competency and therefore was not acting as a “mental health expert.” (Doc. 13 at 167–
8
68.) Again, however, the PCR court determined that the information was relevant as
9
rebuttal to Speer’s mental health mitigating evidence, without reference to the provisions
10
of Rule 11. The court found that the reports were relevant to the “thrust” of Speer’s
11
mitigation, which consisted of the various mental health diagnoses offered by Speer’s
12
experts. (ME 5/20/15 at 21.)
13
Dr. Parrish also testified that she disagreed with the opinions of Drs. Potts and Toma
14
that Speer was malingering. (RT 3/1/07 at 32–33.) The reports of Potts and Toma therefore
15
constituted proper rebuttal. The evidence from the Potts and Toma reports was “closely
16
tailored” to Speer’s “allegations of mental impairment” because it rebutted the testimony
17
of Speer’s expert and supported one of the criteria for Dr. Bayless’s diagnosis of antisocial
18
personality disorder. See State v. Fitzgerald, 232 Ariz. 208, 217, 303 P.3d 519, 528 (2013)
19
(holding that trial court did not abuse its discretion in admitting rebuttal evidence from
20
competency proceedings, including statements made to Correctional Health Services
21
which suggested he was malingering).
22
Finally, as the PCR court noted, Dr. Parrish requested Dr. Toma’s report and raw
23
data and reviewed that information in reaching her own diagnoses. (ME 5/20/15 at 20; Doc.
24
23-10, Ex. 49.) As Dr. Parrish testified on Speer’s behalf at sentencing, the State was
25
entitled to disclosure of Dr. Toma’s report. See Ariz. R. Evid. 705; Ariz. R. Crim. Proc.
26
15(c), (e).
27
Because the reports were properly available to the prosecution, trial counsel did not
28
perform ineffectively in failing to prevent their disclosure. The failure of an attorney to
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1
raise a meritless claim or take a futile action fails both Strickland prongs. Gonzalez, 515
2
F.3d at 1016; Jones, 691 F.3d at 1101; Rupe, 93 F.3d at 1445.
3
4
The PCR court’s denial of this claim was a reasonable application of Strickland.
Under the doubly deferential standard of Strickland and AEDPA, Claim 17 fails.
5
Claim 19:
6
Speer alleges that trial counsel performed ineffectively in cross-examining and
7
impeaching Dr. Bayless. (Doc. 13 at 173.) Specifically, he claims that counsel “failed to
8
utilize a psychological expert’s assistance in the cross-examination” of Dr. Bayless and
9
“failed to present a psychologist to rebut” Dr. Bayless’s “misleading” testimony. (Id.)
10
Speer argues that the report of his expert Dr. Parrish contained information that counsel
11
should have used to challenge Dr. Bayless’s findings on the tests he administered. Speer
12
also cites the opinions of Dr. Toma, who was retained again during the PCR proceedings
13
and was also critical of Dr. Bayless’s testing methods, results, and diagnoses.
14
Speer raised this claim during the PCR proceedings. The court found Speer could
15
not make a “colorable claim” that trial counsel performed ineffectively by failing to use
16
the information provided by Dr. Parrish to impeach Dr. Bayless. (ME 5/20/15 at 24.) The
17
court explained that “[w]hether to call witnesses, what questions to ask, and how to cross-
18
examine opposing experts are strategic decisions, made after reasonable investigation,”
19
which the court “does not second-guess.” (Id.)
20
21
22
23
24
25
26
27
28
The record indicates that counsel made a strategic decision concerning how
he would cross-examine Dr. Bayless regarding his evaluation. The decision
was reasonable, as counsel investigated Dr. Bayless’s opinion, asking his
own expert to identify and address any perceived shortcomings. Trial counsel
called expert witnesses on behalf of Defendant, and cross-examined Dr.
Bayless extensively. The extent of cross-examination is within the
permissible tactical decisions left to trial counsel and is afforded the
presumption that the action is sound trial strategy. Such a decision is
“virtually unchallengeable” under Strickland, 466 U.S. at 690.
Moreover, there is evidence that trial counsel used some of Dr. Parrish’s
suggestions during his cross-examination of Dr. Bayless, which suggests he
made a strategic decision as to which of her suggestions to accept and which
to reject. For example, trial counsel questioned Dr. Bayless about
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
Defendant’s performance on the Shipley scale as Dr. Parrish advised and also
followed Dr. Parrish’s advice regarding the use of the DSM-IV to challenge
Dr. Bayless’ diagnosis of antisocial personality disorder. Further, trial
counsel questioned Dr. Bayless about his alleged failure to take into
consideration that the Defendant suffered from PTSD, which was a diagnosis
Dr. Parrish made in her Report.
The fact that trial counsel did not adopt all of Dr. Parrish’s suggestions is not
proof of deficient performance.. . . .
(Id. at 24–25)
The court then found that Speer had failed to demonstrate prejudice from counsel’s
cross-examination of Dr. Bayless:
Defendant has also failed to establish a reasonable likelihood of a different
outcome had counsel cross-examined Dr. Bayless on these particular topics.
Therefore, Defendant has failed to show prejudice under Strickland. The jury
evaluated all of the experts offered by both sides and afforded the weight to
each expert that they believed to be appropriate. Clearly, they afforded
greater weight to Dr. Bayless, which was their prerogative.
(Id. at 24.)
15
The court addressed the affidavit of trial counsel Storrs, which it found “to not be
16
persuasive in its consideration of whether certain ‘ineffective assistance’ claims are
17
colorable”:
18
19
20
21
22
23
First, trial counsel consistently says what he should have done without ever
explaining why he acted as he did. Second, the Declaration makes no
allowances for tactical or strategic decisions, which this Court finds odd
considering that Mr. Storrs is an extremely experienced and well-regarded
criminal defense lawyer, having been licensed since 1968, having been a
criminal law specialist since 1980, and having probably tried as many capital
cases as any lawyer currently practicing in Phoenix. Third, trial counsel’s
Declaration admits no deficient performance but, even if it did, this Court
would not view such an admission as outcome determinative.
24
25
26
27
28
(Id.) (citations omitted).
The court then turned to the 2014 declaration of Speer’s “Strickland expert,”
attorney Michael Reeves, who stated that counsel performed ineffectively in his crossexamination of Dr. Bayless. (PCR Pet., Ex.2, ¶ 18.) The PCR court considered Reeves’s
opinion but did not accord it “significant weight” because “the standard for assessing IAC
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1
is objective, not subjective, and cannot be evaluated by the opinions of other attorneys
2
second-guessing counsel’s assistance after a death sentence.” (Id. at 26.) The court also
3
noted that it was just as qualified as Reeves “to determine the prevailing professional norms
4
at the time of Defendant’s trial, or to decide whether counsel’s acts or omissions were
5
objectively reasonable under those norms.” (Id.)
6
The court concluded that Speer “cannot demonstrate prejudice, a reasonable
7
probability that the sentencer would have reached a decision for leniency, based on the
8
cross-examination of Dr. Bayless on the points raised by Dr. Parrish and the other evidence
9
presented during the mitigation phase.” (Id.)
10
Speer argues that this ruling was contrary to clearly established federal law and
11
based on an unreasonable determination of the facts. (Doc. 13 at 185, 188.) These
12
arguments fail.
13
“[T]actical decisions at trial, such as refraining from cross-examining a particular
14
witness or from asking a particular line of questions, are given great deference and must
15
similarly meet only objectively reasonable standards.” Dows v. Wood, 211 F.3d 480, 487
16
(9th Cir. 2000); see Brown v. Uttecht, 530 F.3d 1031, 1036 (9th Cir. 2008); see
17
also Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002) (“Decisions about ‘whether to
18
engage in cross-examination, and if so to what extent and in what manner, are . . . strategic
19
in nature’ and generally will not support an ineffective assistance claim.”) (quoting United
20
States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987)); Phoenix v. Matesanz, 233 F.3d
21
77, 83 (1st Cir. 2000) (explaining that choices concerning cross-examination are
22
“prototypical examples of unchallengeable strategy”). Furthermore, a petitioner alleging
23
ineffective assistance of counsel due to counsel’s failure to impeach a witness must
24
demonstrate that, if the witness had been impeached in the manner suggested, there was a
25
reasonable probability that the verdict would have been different. United States. v. Holmes,
26
229 F.3d 782, 789–90 (9th Cir. 2000).
27
The PCR court reasonably found that counsel’s cross-examination of Dr. Bayless
28
was neither deficient nor prejudicial. First, as described above, counsel presented extensive
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1
mental health mitigation evidence through the testimony of Dr. Parrish and the other
2
experts.
3
Next, Storrs did consult with Dr. Parrish in preparation for his examination of Dr.
4
Bayless. (PCR Pet., Ex. 1, ¶ 13.) He also interviewed Dr. Bayless. (See RT 3/21/07 at 55.)
5
At counsel’s request Dr. Parrish prepared a report to assist him in his cross-examination of
6
Bayless. (PCR Pet., Ex.1, ¶ 14; see id., Ex. 33.) Counsel stated he had no independent
7
recollection of the report and no strategic reason for not using the information it contained
8
in his cross-examination of Dr. Bayless. (Id., ¶¶ 15–16.) As the PCR court noted, however,
9
counsel’s cross-examination of Bayless indicated that he took into account some of Dr.
10
Parrish’s suggested lines of attack, including challenging Bayless’s diagnosis of antisocial
11
personality disorder and his failure to consider whether Speer suffered from PTSD. (See
12
RT 3/21/07 at 178–88.)
13
Although his focus was not on the issues highlighted by Dr. Parrish, counsel
14
thoroughly cross-examined Dr. Bayless. His emphasis was on the childhood risk factors
15
identified in Dr. Miller’s report and testimony and the research behind those factors. (Id.
16
at 55–150.) This line of questioning reminded the jury of those factors and exposed Dr.
17
Bayless’s lack of familiarity with the relevant research supporting the factors.
18
The fact that counsel interviewed Dr. Bayless, consulted with Dr. Parrish, and used
19
some of her input in his cross-examination, supports the PCR court’s determination that
20
counsel’s approach to questioning Bayless was tactical and the product of a reasonable
21
investigation and therefore, under Strickland, “virtually unchallengeable,” 466 U.S. at 690.
22
(ME 5/20/15 at 24.)
23
Speer argues that under clearly established federal law, counsel were required to
24
consult with an expert and failure to do so rendered their strategy with respect to cross-
25
examining Dr. Bayless unreasonable. (Doc. 13 at 185–87.) In support of this argument
26
Speer cites Ake v. Oklahoma, 470 U.S. 68 (1985), for the proposition that counsel must
27
obtain expert assistance when the facts revealed by an investigation so require. He also
28
cites Turner v. Duncan, 158 F.3d 449, 456 (9th Cir. 1998), for the proposition that failure
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1
to use available psychiatric information that supports the defense constitutes ineffective
2
assistance, and Browning v. Baker, 875 F.3d 444, 473 (9th Cir. 2017), which held that
3
“investigation must determine strategy, not the other way around.” (Id.) These cases do not
4
support the argument that defense counsel performed ineffectively.
5
Counsel retained three experts who testified on Speer’s behalf at sentencing.
6
Counsel directed one of those experts, Dr. Parrish, to prepare a report addressing Dr.
7
Bayless’s findings. To suggest that counsel failed to investigate Speer’s mental health or
8
retain expert assistance before making any strategic decisions is therefore contrary to the
9
record. Moreover, the choice of what type of expert to use is one of trial strategy and
10
deserves “a heavy measure of deference.” Turner v. Calderon, 281 F.3d 851, 876 (9th Cir.
11
2002) (quoting Strickland, 466 U.S. at 691) (finding trial counsel not ineffective for using
12
a general psychological expert rather than one specialized in the effects of PCP); Harris v.
13
Vasquez, 949 F.2d 1497, 1525 (9th Cir. 1990) (“It is certainly within the ‘wide range of
14
professionally competent assistance’ for an attorney to rely on properly selected experts.”).
15
Counsel is not constitutionally ineffective because, with the benefit of hindsight, other
16
strategies or experts may have been a better choice. Id.
17
Ultimately, as the United States Supreme Court has explained, “it is difficult to
18
establish ineffective assistance when counsel’s overall performance indicates active and
19
capable advocacy.” Richter, 562 U.S. at 111 (finding counsel did not perform ineffectively
20
in failing to present expert witness to rebut state’s evidence). Speer’s counsel provided
21
“active and capable advocacy” throughout Speer’s trial, including at the penalty phase; see
22
Babbitt, 151 F.3d at 1176 (“[C]ounsel did far more than a cursory investigation.”).
23
Speer next contends that the PCR court’s ruling was based on an unreasonable
24
determination of the facts. (Doc. 13 at 188.) Specifically, Speer argues that the court’s
25
“factfinding procedures were unreasonable” because the court failed to discuss Dr. Toma’s
26
report and because it found that counsel followed some of Dr. Parrish’s suggestions when
27
cross-examining Dr. Bayless. (Id. at 189–90.) In support of the latter argument, Speer cites
28
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1
counsel Storr’s statement that he had no strategic reason not to use Dr. Parrish’s
2
information to impeach Dr. Bayless or to cross-examine him thoroughly.
3
The PCR court correctly found that Storr’s declaration was not “outcome
4
determinative.” (ME 5/20/15 at 24.) The fact that counsel “falls of his sword” in retrospect
5
is “not dispositive” of a claim of ineffective assistance. Carter v. Davis, 946 F.3d 489, 524
6
(9th Cir. 2019). Instead, “a court ‘must judge the reasonableness of counsel’s challenged
7
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.’” Id.
8
(quoting Strickland, 466 U.S. at 690); see McAfee v. Thurmer, 589 F.3d 353, 356 (7th Cir.
9
2009) (explaining that an attorney’s “reflection after the fact is irrelevant to the question of
10
ineffective assistance of counsel”).
11
Counsel’s mea culpa, therefore, does not relieve the Court of its role in assessing
12
the reasonableness of counsel’s cross-examination of Dr. Bayless and applying the
13
presumption that counsel “rendered adequate assistance and made all significant decisions
14
in the exercise of reasonable professional judgment.” Carter, 946 F.3d at 524 (quoting
15
Strickland, 466 U.S. at 690).
16
The fact that the PCR court did not discuss Dr. Toma’s 2013 declaration does not
17
render the factfinding process unreasonable. “[S]tate courts are not required to address
18
every jot and tittle of proof suggested to them, nor need they ‘make detailed findings
19
addressing all the evidence before [them].’” Taylor v. Maddox, 366 F.3d 992, 1001 (9th
20
Cir. 2004) (quoting Miller–El I, 537 U.S. at 347), overruled on other grounds by Murray
21
(Robert) v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014). “To fatally undermine the
22
state fact-finding process, and render the resulting finding unreasonable, the overlooked or
23
ignored evidence must be highly probative and central to petitioner’s claim.” Id.
24
Dr. Toma’s 2013 declaration is not highly probative and central to this ineffective
25
assistance claim. The claim alleges that trial counsel ignored Dr. Parrish’s report when
26
cross-examining Dr. Bayless in 2007. Like Dr. Parrish, Dr. Toma offered a critique of Dr.
27
Bayless’s choice of tests and testing methodology. (PCR Pet., Ex’s 33, 34.) To focus on
28
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1
Dr. Parrish’s report, which was the basis of the ineffective assistance allegation, did not
2
fatally undermine or make unreasonable the PCR court’s analysis of the claim.
3
Speer challenges specific findings of the PCR court, including the court’s
4
determination that counsel did adopt in his cross-examination some of Dr. Parrish’s
5
critiques of Dr. Bayless despite counsel’s avowal otherwise. (Doc. 13 at 189.) The PCR
6
court did not, however, engage in a post hoc rationalization, as Speer alleges. (Id. at 189–
7
90.) The court simply recounted the lines of questions counsel posed to Dr. Bayless.
8
Reasonable minds reviewing this record could agree with PCR court’s factual findings.
9
Brumfield, 576 U.S. at 314.
10
Finally, Speer has not shown there was a reasonable probability the jury would have
11
voted for a life sentence if counsel had impeached Dr. Bayless in the manner Speer
12
advocates. The jury determined that death was the appropriate sentence notwithstanding
13
the extensive mitigating evidence counsel presented about Speer’s mental health and the
14
childhood risk factors he faced. Counsel’s cross-examination of Bayless was likewise
15
extensive even in the absence of specific attacks on the testing Bayless performed. Speer
16
has failed to show that if trial counsel had relied more thoroughly on Dr. Parrish’s opinions
17
in cross-examining Dr. Bayless, the “likelihood of a different result” was “substantial, not
18
just conceivable.” Richter, 562 U.S. at 112.
19
Conclusion
20
The PCR court’s denial of the claim that counsel’s cross-examination of Dr. Bayless
21
was constitutionally ineffective was neither contrary to nor an unreasonable application of
22
Strickland, nor was it based on an unreasonable determination of the facts. Claim 19
23
therefore does not satisfy the doubly deferential standard governing ineffective assistance
24
claims under AEDPA. See Richter, 562 U.S. at 105; Titlow, 571 U.S. at 15.
25
E.
26
Speer raises several claims based on the allegation that his sentence was the product
27
Eddings Error
of an unconstitutional “causal nexus” test. These claims are without merit.
28
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1
Claims 18, 20, and 21:
2
In Claim 20, Speer alleges that in reviewing his death sentence the Arizona Supreme
3
Court applied an unconstitutional causal nexus test to his mitigating evidence under
4
McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015), and Tennard v. Dretke, 542 U.S. 274
5
(2004), and therefore “failed to adequately apply its independent review.” (Doc. 13 at 190–
6
202.)
7
In Claim 21, Speer alleges that the Arizona Supreme Court applied an impermissible
8
causal nexus test “when evaluating sentencing errors at trial” in violation of Eddings v.
9
Oklahoma, 455 U.S. 104 (1982), and Tennard. (Doc. 13 at 203.) He argues that the “causal
10
nexus test also tainted Speer’s trial . . . by way of insufficient jury instructions,
11
prosecutorial misconduct, the lack of special verdict forms for mitigating factors, and the
12
trial court’s refusal to allow the jury to consider residual doubt at sentencing.” (Id. at 193,
13
203–11.)
14
15
In Claim 18, Speer alleges that counsel performed ineffectively in failing to object
to the prosecutor’s causal nexus argument. (Id. at 168.)
16
Clearly-established federal law
17
The sentencer in a capital case may “not be precluded from considering, as a
18
mitigating factor, any aspect of a defendant’s character or record and any of the
19
circumstances of the offense that the defendant proffers as a basis for a sentence less than
20
death.” Eddings, 455 U.S. at 110 (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)
21
(plurality opinion)). Accordingly, a state cannot adopt a “causal nexus” rule—that is, a rule
22
precluding a sentencer from considering mitigating evidence unless a causal connection is
23
established between the evidence and the murder. Tennard, 542 U.S. at 287.
24
Courts have emphasized, however, that the sentencer may consider “causal nexus .
25
. . as a factor in determining the weight or significance of mitigating evidence.” Lopez v.
26
Ryan, 630 F.3d 1198, 1204 (9th Cir. 2011), overruled on other grounds by McKinney, 813
27
F.3d at 819; see McGill, 16 F.4th at 683 (“But Eddings does not hold that evidence of a
28
causal nexus is irrelevant to the trier of fact.”); Sansing v. Ryan, 997 F.3d 1018, 1052 (9th
- 118 -
1
Cir. 2021) (finding no Eddings error where sentencing court afforded “minimal weight” to
2
mitigating circumstance not causally linked to the crime). As the Arizona Supreme Court
3
explained in Speer, “although a jury may not be prevented from hearing mitigation
4
evidence lacking a causal nexus to the crime, absence of such a nexus can be considered in
5
evaluating the strength of that evidence.” 221 Ariz. at 461, 212 P.3d at 799 (citing
6
Anderson, 210 Ariz. at 350, 111 P.3d at 392). In sum, “[t]he sentencer, and the [court of
7
appeals] on review, may determine the weight to be given relevant mitigating evidence.
8
But they may not give it no weight by excluding such evidence from their consideration.”
9
Eddings, 455 U.S. at 114–15.
10
In McKinney the Ninth Circuit held that the Arizona Supreme Court, for a period of
11
more than 15 years, from State v. Wallace, 160 Ariz. 424, 773 P.2d 983 (1989), to
12
Anderson, violated Eddings in its capital sentencing analysis by requiring a defendant to
13
show a causal nexus between his proffered mitigating evidence and the crime. McKinney,
14
813 F.3d at 802. In 2005, with its decision in Anderson, “the Arizona Supreme Court finally
15
abandoned its unconstitutional causal nexus test for nonstatutory mitigation.” McKinney,
16
813 F.3d at 817.
17
Claim 20
18
1.
19
Speer first argues that his due process rights were violated when the Arizona
20
Supreme Court applied an unconstitutional causal nexus test to its independent review of
21
his death sentence.
Causal nexus
22
Speer did not raise this claim during the PCR proceedings. (Doc. 13 at 192.) He
23
argues, however, that the claim was exhausted by the Arizona Supreme Court’s
24
independent review of his death sentence. (Id.) This is incorrect. The Ninth Circuit has held
25
that the Arizona Supreme Court’s independent review does not exhaust a claim “that the
26
Arizona Supreme Court failed independently to review and reweigh mitigation and
27
aggravation evidence.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005).
28
Speer contends that the claim’s default is excused under Martinez by the ineffective
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1
assistance of PCR counsel. (Doc. 13 at 192.) This also is incorrect. Under Martinez the
2
ineffective assistance of PCR counsel can excuse the default only of claims of ineffective
3
assistance of trial counsel. See Martinez (Ernesto), 926 F.3d at 1225; Pizzuto, 783 F.3d at
4
1177. Accordingly, Claim 20 remains defaulted and barred from federal review. The claim
5
is also meritless.
6
The Arizona Supreme Court considered Speer’s appeal in 2009, well outside the
7
time period with which the Ninth Circuit in McKinney was concerned. Speer argues
8
nonetheless that the court applied a causal nexus test by citing cases that were decided
9
during the period identified in McKinney. (Doc. 13 at 194–96.) This is simply incorrect.
10
The cases discussed by Speer and cited by the Arizona Supreme Court in his case,
11
are Anderson; State v. Pandeli, 215 Ariz. 514, 526, 161 P.3d 557, 569 (2007); State v.
12
Ellison, 213 Ariz. 116, 144, 140 P.3d 899, 927 (2006); and State v. Hampton, 213 Ariz.
13
167, 185, 140 P.3d 950, 968 (2006). In Anderson the Arizona Supreme Court
14
acknowledged that “a jury cannot be prevented from giving effect to mitigating evidence
15
solely because the evidence has no causal ‘nexus’ to a defendant’s crimes.” 210 Ariz. at
16
349, 111 P.3d at 391 (citing Tennard, 542 U.S. at 283–87). Subsequently, in State v.
17
Newell, the Arizona Supreme Court held that, “We do not require that a nexus between the
18
mitigating factors and the crime be established before we consider the mitigation evidence.
19
But the failure to establish such a causal connection may be considered in assessing the
20
quality and strength of the mitigation evidence.” 212 Ariz. 389, 405, 132 P.3d 833, 849
21
(2006) (citing Tennard, 542 U.S. at 287, and Anderson, 210 Ariz. at 350, 111 P.3d at 392).
22
Like Speer’s own appeal, Pandeli, Ellison, and Hampton were decided after
23
Anderson and Newell, when, as the Ninth Circuit recognized in McKinney, the Arizona
24
Supreme Court had “abandoned” the causal nexus test. McKinney, 813 F.3d at 817.
25
However, even if Speer’s appeal had been decided during the period identified in
26
McKinney, he would not be entitled to relief on his causal-nexus claim.
27
In Greenway v. Ryan, the Ninth Circuit explained: “We said in McKinney that the
28
Arizona courts had ‘consistently’ applied the causal-nexus test. We did not say, however,
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1
that Arizona had always applied it.” 866 F.3d 1094, 1095 (9th Cir. 2017) (citing McKinney,
2
813 F.3d at 803). Determining whether a causal-nexus violation occurred requires an
3
examination of the specific state court ruling. Id. as 1096; see Apelt v. Ryan, 878 F.3d 800,
4
839–40 (9th Cir. 2017).
5
Contrary to Speer’s argument, nothing in the Arizona Supreme Court’s opinion
6
suggests that the court applied a causal nexus test. In carrying out its independent review,
7
the court “thoroughly reviewed the record.” Speer, 221 Ariz. at 464, 212 P.3d at 802. The
8
court found that a number of mitigating circumstances had been established. For example,
9
Speer experienced a “difficult childhood” in a “dysfunctional home” with pervasive drug
10
abuse, including drug abuse by Speer’s mother while she was pregnant with him. Id. He
11
was referred to juvenile court 26 times and incarcerated 12 times from ages 14 to 18. Id.
12
Speer was physically abused by his parents and sexually abused at age five by a female
13
relative. Id. During his early school years his mother refused recommended evaluations for
14
suspected learning disabilities. Id. Speer abused alcohol and drugs. He began using drugs
15
in his early adolescence and overdosed on methamphetamines at 13. Id. He was sent to
16
drug treatment as a juvenile. He became addicted to heroin and apparently committed the
17
March 14 burglary to get money to buy heroin. Id.
18
The court found, in the light of conflicting expert evidence, that Speer suffered from
19
depression and had an IQ between 87 and 97. Id. at 465, 212 P.3d at 803. The court rejected
20
Speer’s diagnosis of cognitive impairment, noting that “the record makes plain that he had
21
a clear ability to think ahead and understand the wrongfulness of his actions” as shown by
22
his planning of the murder from jail, use of code in communicating with Brian Womble,
23
ability to evade MCSO phone restrictions, and directives that Brian dispose of
24
incriminating evidence. Id.
25
26
27
28
Finally, the court found that Speer had proved that his execution would have
negative effects on his family. Id.
The court then summarized its findings with respect to Speer’s mitigating evidence
as balanced against the aggravating factors:
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1
2
3
4
5
6
7
8
9
[T]he record is not bereft of mitigating evidence. Among other things, Speer
suffered a difficult childhood and serious drug abuse. But that history is not
in itself sufficient to warrant leniency in this case.
Nor do Speer’s mental health issues warrant leniency under the
circumstances of this case. This was not a crime of passion or an impetuous
reaction to difficult circumstances. For almost a month, Speer planned the
murder of two innocent victims of a burglary that he had committed, with the
goal of avoiding the consequences of his prior crime. The three aggravating
circumstances—prior serious conviction, witness elimination, and
committing the offense while on parole or in custody—are cumulatively
entitled to substantial weight. And, the factor of witness elimination is in
itself especially weighty, as it involves a direct affront to the functioning of
the justice system.
10
11
12
Having considered the entire record, we conclude that the mitigating
evidence, in the aggregate, is not sufficiently substantial to call for leniency.
Id. (footnote and citation omitted).
13
Far from precluding Speer’s evidence or failing to give it “any mitigating effect,”
14
as Speer argues (Doc. 13 at 197), the Arizona Supreme Court found that a number of
15
mitigating circumstances were proved. The court then evaluated those circumstances in
16
connection with the facts of the crimes. Speer, 221 Ariz. at 465, 212 P.3d at 803. Having
17
done so, the court’s decision to assign limited weight to Speer’s dysfunctional childhood,
18
drug abuse, and mental health problems, was “a choice not foreclosed by Eddings.”
19
Sansing, 997 F.3d at 1042.
20
In arguing that the Arizona Supreme Court applied a causal nexus test in his case,
21
Speer notes that the court cited Hampton for the proposition that a “difficult family
22
background, in and of itself, is not a mitigating circumstance sufficient to mandate leniency
23
in every capital case.” Speer, 221 Ariz. at 465, 212 P.3d at 803 n.10 (quoting Hampton,
24
213 Ariz. at 185, 140 P.3d at 968). The court also cited Ellison, which held that a
25
defendant’s “childhood troubles deserve little value as a mitigator for the murder he
26
committed at age thirty-three.” Id. (quoting Ellison, 213 Ariz. at 144, 140 P.3d at 927). In
27
both Hampton and Ellison, however, the court specifically explained that “[a] defendant is
28
not required to show a nexus between the crime and the mitigation evidence before such
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1
evidence can be considered.” Ellison, 213 Ariz. at 144, 140 P.3d at 927; see Hampton, 213
2
Ariz. at 185, 140 P.3d at 968 (“[W]hile we ‘do not require that a nexus between the
3
mitigating factors and the crime be established before we consider the mitigation evidence
4
. . . the failure to establish such a causal connection may be considered in assessing the
5
quality and strength of the mitigation evidence.’”) (quoting Newell, 212 Ariz. at 405, 132
6
P.3d at 849).
7
In none of these cases did the court violate Eddings by refusing to consider
8
mitigating evidence offered by the defendant. Rather, the courts permissibly applied
9
“causal nexus . . . as a factor in determining the weight or significance of mitigating
10
evidence.” Lopez, 630 F.3d at 1204; see McGill, 16 F.4th at 683. Citation to cases that
11
explicitly disavowed the causal-nexus test is not evidence that the Speer court applied such
12
a test itself.
13
Hampton, in the passage cited by the court in Speer, cites Wallace, 160 Ariz. at 427,
14
773 P.2d at 986, where the court applied an inappropriate causal-nexus test. According to
15
Speer, this error was transmitted to the Speer court’s decision 20 years later. This argument
16
is unpersuasive. As already recounted, the Arizona Supreme Court abandoned the causal-
17
nexus test in 2005. There is no basis to believe that the court in Speer rejected that
18
precedent, especially when it reiterated the correct standard while citing Tennard, the case
19
that prompted the court to abandon the nexus test. Speer, 221 Ariz. at 461, 212 P.3d at 799;
20
cf. McKinney, 813 F.3d at 803, 826 (noting Arizona Supreme Court’s “strong view of stare
21
decisis”).
22
2.
23
Speer also argues in Claim 20 that the Arizona Supreme Court unreasonably
24
interpreted the facts when it found that his mitigating evidence was not sufficiently
25
substantial to require a life sentence. (Doc. 13 at 198.) He contends that the court minimized
26
evidence of his difficult homelife, unreasonably failed to find that other circumstances,
27
such as his age, were mitigating, and did not give appropriate consideration to his mental
28
health and trauma evidence. (Id. at 199–200.)
Reasonableness of factual determinations
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1
Speer cites Parker v. Dugger, 498 U.S. 308, 321 (1991), and Clemons v. Mississippi,
2
494 U.S. 738, 74 (1990), as cases emphasizing the importance of meaningful appellate
3
review in capital cases. (Doc. 13 at 198.) In support of his argument that the Arizona
4
Supreme Court’s decision in his case was factually unreasonable, Speer relies on other
5
decisions where the court has found the mitigating evidence sufficient to require leniency
6
at sentencing. (Id. at 199–201.) In essence, Speer asks the Court to grant habeas relief based
7
on a proportionality review of Arizona death sentences.
8
Proportionality review of death sentences is not constitutionally required. See
9
McCleskey v. Kemp, 481 U.S. 279, 306 (1987) (citing Pulley v. Harris, 465 U.S. 37, 43
10
(1984)); Allen, 395 F.3d at 1018. Moreover, while “meaningful appellate review” is
11
necessary to ensure that the death penalty is not imposed in an arbitrary or irrational
12
fashion, Pulley, 465 U.S. at 54 (Stevens, J., concurring); Parker, 498 U.S. at 321, the
13
Supreme Court has never held that “independent” or “de novo” review of death sentences
14
is constitutionally mandated. See also Walton v. Arizona, 497 U.S. 639, 655–56 (1990)
15
overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002). The Constitution
16
requires only that an appellate court “consider whether the evidence is such that the
17
sentencer could have arrived at the death sentence that was imposed,” not whether the
18
appellate court itself would have imposed a death sentence. Clemons, 494 U.S. at 749.
19
The Arizona Supreme Court did not violate clearly-established federal law by
20
finding that mitigating circumstances in Speer’s case did not outweigh the aggravating
21
factors. In Poyson v. Ryan, 879 F.3d 875, 893–94 (9th Cir. 2018), the petitioner alleged
22
that his rights under Eddings and Parker were violated when the trial court and Arizona
23
Supreme Court erroneously found that he had not proved substance abuse as a mitigating
24
circumstance. The petitioner argued that he was entitled to habeas relief because his
25
sentence was based on an unreasonable determination of the facts under § 2254(d)(2). Id.
26
at 893.
27
The Ninth Circuit explained that this argument “misunderstands the law.” Id. Even
28
if the state courts made a factual error, a habeas petitioner is entitled to relief only if he can
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1
demonstrate that his constitutional rights were violated. Id. (citing Wilson v. Corcoran, 562
2
U.S. 1, 5–6 (2010) (per curiam)); see 28 U.S.C. § 2254(a) (providing that habeas relief may
3
be granted “only on the ground” that the petitioner’s custody violated the law).
4
Like the petitioner in Poyson, Speer cannot show a constitutional violation under
5
Eddings or Parker. The Arizona Supreme Court did not apply a causal-nexus test to Speer’s
6
mitigating evidence, so there was no violation of Eddings.
7
At issue in Parker was a decision of the Florida Supreme Court which had affirmed
8
the petitioner’s death sentence after striking two aggravating factors. 498 U.S. at 321. The
9
state supreme court based its decision on an erroneous determination that the trial court
10
had found no mitigation. Id. at 318. In fact, the record established that the trial court had
11
found mitigating circumstances. Id. at 318–20. Having erroneously reviewed the trial
12
court’s decision, the state supreme court “did not come to its own independent factual
13
conclusion, and it did not rely on what the trial judge actually found; it relied on ‘findings’
14
of the trial judge that bear no necessary relation to this case.” Id. at 322. By striking two
15
aggravating factors and then affirming the death sentence without considering the
16
mitigating circumstances, the Florida Supreme Court “deprived Parker of the
17
individualized treatment to which he is entitled under the Constitution.” Id.
18
The Arizona Supreme Court committed no such error in Speer’s case. In carrying
19
out its independent review, the court thoroughly assessed all of the aggravating factors and
20
mitigating circumstances. Parker does not support the argument that the Arizona Supreme
21
Court’s independent review of Speer’s sentence was constitutionally infirm.
22
Claim 20 is therefore denied.
23
Claim 21
24
Speer alleges that the Arizona Supreme Court unreasonably applied Eddings and
25
Tennard in denying several claims raised on direct appeal. (Doc. 13 at 203.) The allegation
26
is meritless.
Prosecutor’s closing argument
27
1.
28
Speer first alleges that the prosecutor included an improper causal-nexus argument
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1
in her closing argument after the penalty phase of trial. (Doc. 13 at 203–04.) Speer cites,
2
in severely truncated form, the following passage culled from the prosecutor’s closing
3
argument:
4
5
[T]here’s no indication that in the spring of 2002, he was using any drugs.
And if he did get his hands on some, he certainly wasn’t using it on a daily
basis.
6
7
8
9
10
And how many phone calls did we hear where he plots the murder? 22? So
there’s no indication that he was using drugs during the time of the offense,
he was on Zoloft for the alleged posttraumatic stress disorder, if he had it,
and he’s not brain damaged, then how was his ability to conform his conduct
to the requirements of law impaired? How was he unable to control his
behavior? How did any of those things have anything to do with why he
murdered Adan Soto?
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
They don’t. They do not reduce the degree of his moral culpability or
blameworthiness. I suggest that they don’t exist, and they’re being used to
try to explain what the defendant’s real issue is, which is he has antisocial
personality disorder.
(RT 3/27/2007, a.m., 66–67.) Speer also quotes this passage:
. . . Paul Speer cares about one person and one person only. He has antisocial
personality disorder. He is never going to change. There is nothing about this
crime that calls out for mercy for the defendant. He came from a
dysfunctional family. So what. We all came from someplace. And we all
managed to be law-abiding citizens.
(Id. at 72.)
On direct appeal, the Arizona Supreme Court rejected Speer’s claim that the
prosecutor’s closing argument “improperly limited the jury’s consideration of mitigating
factors by urging that evidence lacking a causal nexus to the crime should not be given
weight.” Speer, 221 Ariz. at 461, 212 P.3d at 799. The court found no error, citing Anderson
and reiterating that “although a jury may not be prevented from hearing mitigation evidence
lacking a causal nexus to the crime, absence of such a nexus can be considered in evaluating
the strength of that evidence.” Id. (citing Anderson, 210 Ariz. at 350, 111 P.3d at 392).
This ruling was not an unreasonable application of Eddings and Tennard. The
prosecutor’s argument was a permissible comment on the weight of the proffered
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1
mitigating evidence. “Once the jury has heard all of the defendant’s mitigation evidence,
2
there is no constitutional prohibition against the State arguing that the evidence is not
3
particularly relevant or that it is entitled to little weight. The prosecutor’s various comments
4
and questions here simply went to the weight of Anderson’s mitigation evidence and were
5
not improper.” Anderson, 210 Ariz. at 350, 111 P.3d at 392; see McGill, 16 F.4th at 683
6
(citing Anderson, 210 Ariz. 327, 111 P.3d 369); McKinney, 813 F.3d at 818 (same); cf.
7
Eddings, 455 U.S. at 114–15 (“The sentencer . . . may determine the weight to be given
8
relevant mitigating evidence.”); McKinney, 813 F.3d at 834 n.22 (“A sentencer is free to
9
assign whatever weight, including no weight, that mitigating evidence deserves under the
10
facts of the case. . . .”) (emphasis in original); Lopez, 630 F.3d at 1204.
11
In Speer’s case, the prosecutor attempted to discount the mitigating value of Speer’s
12
mental health and substance abuse evidence by questioning whether it had been proved and
13
discounting its relationship to the murder. Again, this was permissible. See, e.g.,
14
Underwood v. Royal, 894 F.3d 1154, 1171–72 (10th Cir. 2018) (finding state court
15
reasonably applied clearly established federal law in denying petitioner’s Eddings claim
16
where the prosecutor “attacked the quality and strength” of petitioner’s mitigating
17
evidence); United States v. Johnson, 495 F.3d 951, 978 (8th Cir. 2007) (“[A]s long as the
18
jurors are not told to ignore or disregard mitigators, a prosecutor may argue, based on the
19
circumstances of the case, that they are entitled to little or no weight.”) The prosecutor did
20
not tell the jurors they could not consider Speer’s mitigating evidence.
21
Even if the prosecutor’s comments were impermissible, however, any error was
22
cured by the trial court’s instructions on mitigating evidence. The court explained that
23
“[t]he attorneys’ remarks, statements, and arguments are not evidence. . . .” (RT 3/26/07 at
24
72.) The court then instructed the jury as follows:
25
26
27
28
Mitigating circumstances may be offered by the defendant or the State or be
apparent from the evidence presented at any phase of these proceedings. You
must consider and give effect to all mitigating circumstances that have been
raised by any aspect of the evidence. You must disregard any jury instruction
that conflicts with this principle.
...
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1
2
3
4
During this trial each of you individually are required to consider mitigating
circumstances, that is, circumstances that do not justify or excuse the offense
but which, in fairness and mercy, may be considered as extenuating or
reducing the defendant’s moral culpability and blameworthiness and which
suggest that life imprisonment is the appropriate punishment.
5
6
7
8
9
10
11
12
You are called upon to make a unique individual assessment about the
sentence Paul Speer should receive. The law contemplates that each
individual juror may give different value to any particular mitigating
circumstance. For example, one juror may find one factor substantial to call
for life imprisonment while another juror may give the same factor no value.
Any one juror who is persuaded that a mitigating factor exists must consider
it in his or her sentencing decision.
The determination of what circumstances are mitigating is for each of you to
resolve individually, based on all the evidence presented to you.
16
Mitigating circumstances may be any factors presented by the defendant or
the State that are relevant in determining whether to impose life
imprisonment, including any aspect of the defendant’s character,
propensities, that is, tendencies or inclinations, or record, and any of the
circumstances of the offense, and any other factor you find relevant to your
individual consideration.
17
(Id. at 71, 73–74.) The court next listed the 23 mitigating circumstances proposed by
18
defense counsel. (Id. at 74–75.)
13
14
15
19
Finally, in his closing argument, Speer’s counsel explained to the jury that there
20
“does not have to be a connection” between a mitigating circumstance, such as Speer’s
21
alleged molestation by his aunt, and the crime. (RT 3/27/07 at 6.) He also noted that the
22
jury instructions did not require such a connection. (Id.)
23
The court’s instructions imposed no causal nexus on Speer’s mitigating evidence
24
and defined mitigation in the broadest possible terms, as “any other factor you find relevant
25
to your individual consideration.” (RT 3/26/07 at 74.)
26
In addition, the arguments of counsel do not have the same force as instructions
27
from the court, see Boyde, 494 U.S. at 384, and jurors are presumed to follow such
28
instructions, Weeks v. Angelone, 528 U.S. 225, 234 (2000).
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1
2
3
4
Based on these considerations, the jury would have understood that it was able to
consider all of Speer’s mitigating evidence.
The Arizona Supreme Court’s denial of this claim was not an unreasonable
application of clearly-established federal law.
5
2.
§ 13–751(G)
6
Speer next argues that A.R.S. § 13–751(G) unconstitutionally limits mitigation by
7
requiring a causal nexus between the evidence and the murder. (Doc. 13 at 207.) The
8
Arizona Supreme Court denied this claim on direct appeal, finding that the statute did not
9
require such a connection. Speer, 221 Ariz. at 461, 212 P.3d at 799.
10
The court first noted that the text of the statute itself places no such limits on the
11
consideration of mitigating evidence, but instead “allows the jury to consider ‘as mitigating
12
circumstances any factors proffered by the defendant or the state that are relevant in
13
determining whether to impose a sentence less than death, including any aspect of the
14
defendant’s character, propensities or record and any of the circumstances of the offense.’”
15
Id. (quoting § 13–751(G)) (emphasis added by supreme court). The court then noted that
16
the trial judge “specifically instructed the jury that, in addition to specific mitigating factors
17
claimed by Speer, it could ‘consider anything else about the commission of the crime or
18
Paul Speer’s background or character that would mitigate against imposing the death
19
penalty.’ Thus, the jury was entirely free to consider all mitigating evidence, whether or
20
not it had a causal nexus to the murder.” Id.
21
Speer’s only response to the statutory language is to repeat his incorrect argument
22
that McKinney applies to the Arizona Supreme Court’s analysis of mitigating evidence in
23
his case. (Doc. 13 at 207–09.) It does not because, as has been earlier discussed, the
24
decision in Speer fell outside the McKinney time frame and nothing in the decision suggests
25
that the court applied a causal-nexus test.
26
27
The Arizona Supreme Court’s denial of this claim was not an unreasonable
application of clearly-established federal law.
28
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1
3.
2
Speer argues that his right to due process and meaningful appellate review were
3
denied because the trial court failed to provide a special verdict form for Speer’s mitigating
4
evidence. (Doc. 13 at 209.) The Arizona Supreme Court summarily denied the claim on
5
direct appeal. Speer, 221 Ariz. at 462, 212 P.3d at 800.
Special verdict form
6
The Constitution does not require a capital sentencer to document its analysis of
7
mitigating circumstances, as long as the sentencer considers all of the evidence. See Jeffries
8
v. Blodgett, 5 F.3d 1180, 1197 (9th Cir. 1993) (“[D]ue process does not require that the
9
sentencer exhaustively document its analysis of each mitigating factor as long as a
10
reviewing federal court can discern from the record that the state court did indeed consider
11
all mitigating evidence offered by the defendant”) (citing Parker, 498 U.S. at 314–19); see
12
also Jeffers v. Lewis, 38 F.3d 411, 418 (9th Cir. 1994) (explaining that a defendant is not
13
“entitled to a specific listing and discussion of each piece of mitigating evidence under
14
federal constitutional law”).
15
16
The Arizona Supreme Court’s denial of this claim was not an unreasonable
application of clearly-established federal law.
17
4.
Residual doubt
18
Speer argues that his due process rights were violated by the trial court’s refusal to
19
issue a penalty-phase instruction on residual doubt as a mitigating circumstance. (Doc. 13
20
at 210.) On appeal, the Arizona Supreme Court held that the trial court “acted correctly”
21
because there is no constitutional or statutory right to present residual doubt evidence
22
during the penalty phase and because a residual doubt instruction is not required by Arizona
23
law. Speer, 221 Ariz. at 462, 212 P.3d at 800 (citations omitted). This decision is not an
24
unreasonable application of clearly-established federal law.
25
“[T]he United States Supreme Court has expressly rejected the assertion that a
26
capital defendant has a federal constitutional right to produce evidence of residual doubt at
27
sentencing.” Atwood v. Schriro, 489 F. Supp. 2d 982, 1021 (D. Ariz. 2007) (citing Oregon
28
v. Guzek, 546 U.S. 517, 523–25 (2006)); see Abdul-Kabir v. Quarterman, 550 U.S. 233,
- 130 -
1
250–51 (2007) (“[W]e have never held that capital defendants have an Eighth Amendment
2
right to present ‘residual doubt’ evidence at sentencing.”); Franklin v. Lynaugh, 487 U.S.
3
164, 174 (1988) (suggesting there is no constitutional right to present evidence of “residual
4
doubt” because “[s]uch lingering doubts are not over any aspect of petitioner’s character,
5
record, or a circumstance of the offense”) (quotation omitted); see also Holland v.
6
Anderson, 583 F.3d 267, 283 (5th Cir. 2009) (explaining that the Supreme Court “has not
7
recognized a constitutional right to argue ‘residual doubt’ at sentencing,” so the state
8
court’s decision precluding such evidence was neither contrary to nor an unreasonable
9
application of clearly established federal law).
10
Claim 18
11
Speer alleges that counsel performed ineffectively by failing to object to the
12
prosecutor’s closing argument. As previously noted, the Arizona Supreme Court rejected
13
Speer’s causal-nexus arguments, including the claim the prosecutor’s argument was
14
erroneous. Speer, 221 Ariz. at 461, 212 P.3d at 799.
15
Speer raised this claim of ineffective assistance in his PCR petition. The court found
16
the claim precluded and meritless. (PCR Pet. at 72.) With respect to the latter
17
determination, the PCR court explained:
18
19
20
21
22
The State properly argued its belief as to the weight to be afforded mitigation,
absent proof of a nexus to the crime. In the instructions to the jury, this Court
advised the jurors to “consider and give effect to all mitigating circumstances
raised by the evidence”; to determine credibility and weight and to consider
“factors that bear on credibility and weight;” and that “each individual juror
may give different value to any particular mitigating circumstance.”
(PCR Ruling, ME 5/20/15 at 24.) This claim is meritless and is denied on that basis.
23
As explained above, the prosecutor’s remarks were permissible under Anderson and
24
Eddings. Because Speer’s prosecutorial misconduct claim has no merit, counsel cannot be
25
ineffective for failing to object. See e.g., Juan H., 408 F.3d at 1273; Rupe, 93 F.3d at 1444–
26
45; see also Fulks v. United States, 875 F. Supp. 2d 535, 581 (D.S.C. 2010) (finding
27
“counsel was not ineffective for failing to object to the prosecutor’s argument” where the
28
“argument did not imply a strict causal nexus was required, and to the extent the prosecutor
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1
might have suggested this indirectly, the court’s omnibus jury charge clearly explained to
2
the jury the proper role of mitigating factors in this case. Hence, there was no error by the
3
court or counsel”); Allen v. United States, No. 4:07CV00027 ERW, 2011 WL 1770929, at
4
*40 (E.D. Mo. May 10, 2011) (“Counsel performed reasonably in not objecting to these
5
statements because none of them rose to the level of instructing the jury that they were
6
required to ignore Allen’s mitigating evidence.”).
7
F.
8
Claim 22:
9
Speer alleges that his rights to a fair trial and due process were violated when a juror
10
observed him in handcuffs. (Doc. 13 at 211.) He contends that the Arizona Supreme
11
Court’s denial of this claim was “an unreasonable interpretation of the facts” and “an
12
unreasonable application of clearly established federal law holding that a trial court abuses
13
its discretion in allowing visible restraints in the absence of compelling circumstances.”
14
(Id.)
Juror Issues
15
During the penalty phase of trial, Juror 7 reported attending a social event where
16
she sat next to a deputy county attorney. (RT 2/26/07 at 1–11.) The court and counsel
17
questioned the juror about the incident the next morning. (Id.) While she was being
18
questioned, a deputy brought Speer into the courtroom. Speer was wearing pink handcuffs.
19
(Id. at 13–14.) The court immediately told the deputy to remove Speer and bring him back
20
in a few minutes and excused the juror. (Id.)
21
Speer’s attorney moved for a mistrial. (Id. at 15.) The court denied the motion but
22
offered to dismiss Juror 7 and seat the last remaining alternate. (Id. at 15–22.) Speer’s
23
counsel rejected the offer because he believed that Juror 7 would favor voting for a life
24
sentence. (Id. at 17.)
25
Juror 7 was then brought back into the courtroom. (Id. at 27.) She acknowledged
26
seeing Speer’s handcuffs (id.) but stated that did not affect her ability to be fair and
27
impartial about the evidence in the penalty phase (id. at 35). She already knew from the
28
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1
trial evidence that Speer was in jail and believed that it was standard procedure for inmates
2
to be in handcuffs. (Id.)
3
Speer conferred with counsel. (Id. at 42.) The court then engaged in a colloquy with
4
Speer and found that, on counsel’s advice, he made a knowing and voluntary waiver of the
5
court’s offer to excuse Juror 7. (Id. at 43–45.) The court admonished the juror not to discuss
6
the issue with the other jurors.
7
In denying this claim on direct appeal, the Arizona Supreme Court first cited Deck
8
v. Missouri, 544 U.S. 622, 633 (2005). Speer, 221 Ariz. at 462, 212 P.3d at 800. Deck held
9
that “the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible
10
to the jury absent a trial court determination, in the exercise of its discretion, that they are
11
justified by a state interest specific to a particular trial.” 544 U.S. at 629. Accordingly,
12
“where a court, without adequate justification, orders the defendant to wear shackles that
13
will be seen by the jury, the defendant need not demonstrate actual prejudice to make out
14
a due process violation.” Id. at 635.
15
The court determined, however, that Speer’s case was “more analogous to
16
inadvertent exposure to a restrained prisoner during transportation than to restraint during
17
trial.” Speer, 221 Ariz. at 463, 212 P.3d at 801. In such cases, the defendant must show
18
actual prejudice. Id. at 463–64, 212 P.3d at 800–01. The court explained:
19
20
21
22
23
24
25
26
27
28
In this case, a single juror saw Speer brought into the courtroom in restraints
during a preliminary proceeding. . . . Because Speer was not restrained during
trial, the considerations that led the Supreme Court to find inherent prejudice
in Deck are not present. See 544 U.S. at 630–32, 125 S. Ct. 2007 (noting that
shackling during trial undermines presumption of innocence, interferes with
right to assistance of counsel, and diminishes dignity of process); id. at 633,
125 S. Ct. 2007 (noting that shackling during trial suggests that defendant is
danger to the community).
Given Juror 7’s statements, the superior court did not abuse its discretion in
finding that Speer suffered no prejudice from the incident. Moreover,
because only one juror saw Speer in restraints, the trial court’s offer to seat
an alternate would have obviated any prejudice. Having rejected that offer,
Speer cannot now claim error.
Id. at 463, 212 P.3d at 801.
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1
This decision was not an unreasonable application of clearly established federal law.
2
As the Arizona Supreme Court recognized, Deck is distinguishable. There, the defendant
3
was handcuffed and shackled with leg irons and a belly chain throughout the penalty phase
4
of his capital trial. 544 U.S. at 625. The Court held that visibly shackling a defendant inside
5
the courtroom is inherently prejudicial and must be justified by an essential state
6
interest. Id. at 627.
7
Speer was not shackled or handcuffed during any courtroom proceedings. A single
8
juror inadvertently caught a glimpse of him in handcuffs as he was being led into the
9
courtroom. The Supreme Court has not considered whether such a scenario is inherently
10
prejudicial. The Ninth Circuit, however, has “held that visible shackling outside the
11
courtroom—at least when the viewing is brief and accidental—is not inherently prejudicial;
12
instead, a due process violation occurs only if the criminal defendant demonstrates actual
13
prejudice.” Wharton v. Chappell, 765 F.3d 953, 964–65 (9th Cir. 2014). Courts in other
14
cases have likewise found that the glimpse by a juror or jurors of a shackled defendant as
15
he is brought into the courtroom is not inherently or presumptively prejudicial. See, e.g.,
16
Williams v. Woodford, 384 F.3d 567, 593 (9th Cir. 2004); Ghent v. Woodford, 279 F.3d
17
1121, 1133 (9th Cir. 2002); United States v. Olano, 62 F.3d 1180, 1190 (9th Cir. 1995). As
18
the court in Wharton explained, one reason to distinguish between “shackling in open court
19
and shackling during transportation” is the fact the jurors are aware that defendants may
20
be in custody and that it is a regular practice to handcuff inmates while they are being
21
transported. 765 F.3d at 965 (citing, e.g., United States v. Halliburton, 870 F.2d 557, 561
22
(9th Cir. 1989)).
23
In Wharton, some jurors saw the petitioner being escorted through the public
24
hallways of the courthouse in a “chain gang” of other inmates. Id. at 958, 965. He was not
25
shackled while in the courtroom. Id. at 965–67. In this scenario, the petitioner was required
26
to “demonstrate actual prejudice.” Id. at 966. The court of appeals held that the petitioner
27
did not make that showing. Id. at 966–67. The court noted the strong evidence of the
28
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1
petitioner’s guilt. The court also explained that “jurors likely understood that the
2
transportation shackling was a regular part of his custody.” Id.
3
These factors support a finding that Speer was not prejudiced by the fact that a single
4
juror saw him in handcuffs as he was being brought into the courtroom. The evidence
5
against Speer was strong, and the juror believed Speer was in custody and that it was
6
standard procedure for inmates to be handcuffed. Finally, the fact that Speer was
7
unhandcuffed while inside the courtroom “suggested that [he] was not a dangerous person.”
8
Id. Under these circumstances, Speer has not shown that he was prejudiced by Juror 7’s
9
glimpse of him in handcuffs.
10
The Arizona Supreme Court’s denial of this claim was neither contrary to nor an
11
unreasonable application of clearly established federal law nor was it based on an
12
unreasonable determination of the facts. Claim 22 is denied.
13
Claim 25:
14
Speer alleges that jurors considered inadmissible and prejudicial extrinsic evidence
15
during the penalty phase of his trial in violation of the Sixth, Eighth, and Fourteenth
16
Amendments. (Doc. 13 at 234.) He did not raise this claim in state court but contends,
17
incorrectly, that its default is excused by the ineffective assistance of appellate and PCR
18
counsel. (Id..) Again, ineffective assistance of appellate counsel may be used as cause to
19
excuse a procedural default only where the particular ineffective assistance allegation was
20
first exhausted in state court as an independent constitutional claim. See Carpenter, 529
21
U.S. at 453; Carrier, 477 U.S. at 489–90. Speer did not raise such a claim of ineffective
22
assistance of appellate counsel. Under Martinez the ineffective assistance of PCR counsel
23
can excuse the default only of claims of ineffective assistance of trial counsel. See Martinez
24
(Ernesto), 926 F.3d at 1225; Pizzuto, 783 F.3d at 1177.
25
Claim 25 remains procedurally defaulted and is barred from federal review.
26
G.
27
Claim 23:
28
Speer alleges that the trial court “improperly coerced the jury” when it reported
Challenges to Jury Instructions
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1
being deadlocked during penalty-phase deliberations. (Doc. 13 at 216.) Speer
2
acknowledges that he did not raise this claim in state court. (Id.) He contends that its default
3
is excused by the ineffective assistance of appellate and PCR counsel. (Id. at 225–26.)
4
Again, this is incorrect. First, as noted previously, ineffective assistance of appellate
5
counsel may be used as cause to excuse a procedural default only where the particular
6
ineffective assistance allegation was first exhausted in state court as an independent
7
constitutional claim. See Carpenter, 529 U.S. at 453; Carrier, 477 U.S. at 489–90. Speer
8
did not raise such a claim of ineffective assistance of appellate counsel. Second, under
9
Martinez the ineffective assistance of PCR counsel can excuse the default only of claims
10
of ineffective assistance of trial counsel. See Martinez (Ernesto), 926 F.3d at 1225; Pizzuto,
11
783 F.3d at 1177. Claim 23 remains procedurally defaulted and is barred from federal
12
review.
13
Claim 24:
14
Speer argues that his rights under the Sixth, Eighth, and Fourteenth Amendments
15
were violated by the trial court’s failure to instruct the jury that to find that death was the
16
appropriate sentence it had to determine beyond a reasonable doubt that the aggravating
17
factors outweighed the mitigating circumstances. (Doc. 13 at 226.) The Arizona Supreme
18
Court summarily denied this claim on direct review. Speer, 221 Ariz. at 467, 212 P.3d at
19
805. The court’s decision does not entitle Speer to habeas relief.
20
Speer argues that in Hurst v. Florida, 577 U.S. 92 (2016), the Supreme Court held
21
capital jurors must make their weighing determination—aggravating versus mitigating
22
factors—beyond a reasonable doubt. (Doc. 13 at 228–29.) This argument fails.
23
First, Hurst was not clearly-established federal law at the time the Arizona Supreme
24
Court reviewed Speer’s death sentence. See Underwood v. Royal, 894 F.3d 1154, 1186
25
(10th Cir. 2018) (“Hurst post-dates the [Oklahoma Court of Criminal Appeal’s] decision
26
and thus cannot serve as clearly established federal law for purposes of our review under
27
AEDPA.”) (citing Greene v. Fisher, 565 U.S. 34, 38 (2011)).
28
- 136 -
1
In Hurst the Court held that Florida’s capital sentencing scheme violated Ring v.
2
Arizona, 536 U.S. 584 (2002). Ring invalidated Arizona’s capital sentencing statute under
3
which a judge made the factual findings necessary to expose a defendant to a death
4
sentence. Under the Florida scheme, a jury rendered an advisory verdict while the judge
5
made the ultimate factual determinations necessary to sentence a defendant to death. Hurst,
6
577 U.S. at 98. The Court held that this procedure was invalid because it “does not require
7
the jury to make the critical findings necessary to impose the death penalty.” Id. In Hurst
8
the Supreme Court simply applied Ring to Florida’s capital sentencing statutes.
9
Contrary to Speer’s argument, Hurst does not hold that a jury is required to find
10
beyond a reasonable doubt that the aggravating factors outweigh the mitigating
11
circumstances. Hurst held only that Florida’s scheme, in which the jury rendered an
12
advisory sentence but the judge made the findings regarding aggravating and mitigating
13
factors, violated the Sixth Amendment. Id. at 97.
14
Hurst did not address the process of weighing aggravating and mitigating
15
circumstances and “made no holding regarding [the] determination . . . that the mitigators
16
do not outweigh the aggravators.” United States v. Tsarnaev, 968 F.3d 24, 88–89 (1st Cir.
17
2020), reversed on other grounds, 142 S. Ct. 1024 (2022). The Supreme Court has held
18
that the sentencer may be given “unbridled discretion in determining whether the death
19
penalty should be imposed after it has found that the defendant is a member of the class
20
made eligible for that penalty.” Zant v. Stephens, 462 U.S. 862, 875 (1983); see Tuilaepa
21
v. California, 512 U.S. 967, 979–80 (1994). In Zant the Court explained that “specific
22
standards for balancing aggravating against mitigating circumstances are not
23
constitutionally required.” Id. at 875 n.13; see Franklin, 487 U.S. at 179 (“[W]e have never
24
held that a specific method for balancing mitigating and aggravating factors in a capital
25
sentencing proceeding is constitutionally required.”).
26
In McKinney v. Arizona, 140 S. Ct. 702, 707 (2020), the Court reiterated that “a jury
27
must find the aggravating circumstance that makes the defendant death eligible.” The Court
28
explained, however, that “in a capital sentencing proceeding just as in an ordinary
- 137 -
1
sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to
2
weigh the aggravating and mitigating circumstances or to make the ultimate sentencing
3
decision within the relevant sentencing range.” Thus, “Ring and Hurst did not require jury
4
weighing of aggravating and mitigating circumstances.” Id. at 708. If jury weighing is not
5
required, there cannot be a standard for that weighing.
Finally, as the Court announced in McKinney, Hurst does “not apply retroactively
6
7
on collateral review.” Id.
The Arizona Supreme Court’s denial of this claim was neither contrary to nor an
8
9
unreasonable application of clearly established federal law. Claim 24 is denied.
10
H.
11
Claim 26:
12
Speer alleges that he was denied his right to effective assistance of appellate counsel.
13
(Doc. 13 at 245.) The claim consists of seven subclaims.31 Speer contends that he exhausted
14
two of the subclaims, (1) and (3), by raising them in his PCR petition, where they were
15
denied on the merits. (Id.; see ME 5/20/15 at 12 and 23.) Respondents argue that Speer
16
failed to exhaust those subclaims because he did not include them in his petition for review.
17
(Doc. 16 at 100; see PR at 22–23, 34–38.) Respondents are correct. Speer’s failure to
18
include the claims in his petition for review renders them unexhausted. See Boerckel, 526
19
U.S. at 848; Swoopes, 196 F.3d 1008 (holding that capital prisoners must seek review in
20
Arizona Supreme Court to exhaust claims). In addition, as discussed above, the subclaims
21
are meritless.
Ineffective Assistance of Appellate and PCR Counsel
22
23
24
25
26
27
28
31
Speer alleges that appellate counsel was ineffective based on his failure to raise
claims (1) challenging the accomplice instruction and trial counsel’s failure to object to
and correct the instruction; (2) that trial counsel were ineffective for failing to move to
vacate Speer’s conviction and sentence on the basis of conflicting theories of prosecution;
(3) that the trial court violated Speer’s confrontation rights; (4) alleging prosecutorial
misconduct; (5) presenting an independent review argument; and alleging (6) juror
misconduct and (7) jury coercion.
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1
The parties agree that the five remaining subclaims are unexhausted because Speer
2
did not raise them in state court. (Doc. 13 at 245; Doc. 16 at 100.) Speer contends that their
3
default is excused under Martinez by the ineffective assistance of PCR counsel. As has
4
already been noted, however, Martinez applies only to claims of ineffective assistance of
5
trial counsel, not to claims of ineffective assistance of appellate counsel. Davila, 137 S. Ct.
6
at 2062–63, 2065–66.
7
8
9
The allegations in Claim 26 are all procedurally defaulted and barred from federal
review. Claim 26 is denied.
Claim 27:
10
Speer alleges that his PCR counsel were constitutionally ineffective. (Doc. 13 at
11
253.) The ineffective assistance of PCR counsel is not cognizable as an independent
12
constitutional claim. See 28 U.S.C. § 2254(i) (“[T]he ineffectiveness or incompetence of
13
counsel during Federal or State collateral post-conviction proceedings shall not be a ground
14
for relief.”); Coleman, 501 U.S. at 752 (explaining that because there is no constitutional
15
right to an attorney in PCR proceedings, “a petitioner cannot claim constitutionally
16
ineffective assistance of counsel in such proceedings”); Mendoza v. Sec’y, Fla. Dep’t of
17
Corr., 659 F.App’x 974, 982 (11th Cir. 2016) (“[T]o any extent Mendoza arguably wishes
18
to raise a claim that his state post-conviction counsel was ineffective, such a claim would
19
be futile because it is not cognizable.”). Claim 27 is denied.
20
I.
Cumulative Prejudice
21
Claim 28:
22
Speer alleges that his conviction and sentence must be vacated due to the cumulative
23
prejudicial effect of the errors in his case (Doc. 13 at 259.) The parties agree that the federal
24
basis of this claim was addressed in state court. The claim, however, is meritless.
25
The United States Supreme Court has not specifically recognized the doctrine of
26
cumulative error as an independent basis for habeas relief. See Lorraine v. Coyle, 291 F.3d
27
416, 447 (6th Cir. 2002) (“The Supreme Court has not held that distinct constitutional
28
claims can be cumulated to grant habeas relief.”); cf. Morris v. Sec’y Dep’t of Corr., 677
- 139 -
1
F.3d 1117, 1132 n.3 (11th Cir. 2012) (refusing to decide whether “under the current state
2
of Supreme Court precedent, cumulative error claims reviewed through the lens of AEDPA
3
can ever succeed in showing that the state court’s decision on the merits was contrary to or
4
an unreasonable application of clearly established law”).
5
The Ninth Circuit has held that in some cases, although no single trial error is
6
sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may
7
nonetheless prejudice a defendant to such a degree that his conviction must be overturned.
8
See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002), overruled on other grounds
9
by Slack v. McDaniel, 529 U.S. 473 (2000). Here, however, the Court has not identified
10
any constitutional errors arising during Speer’s trial. Therefore, “[b]ecause there is no
11
single constitutional error in this case, there is nothing to accumulate to [the] level of a
12
constitutional violation.” Id.; see Boyde v. Brown, 404 F.3d 1159, 1176 (9th Cir. 2005);
13
Morris, 677 F.3d at 1132 & n.3. “If there are no errors, there is no need to consider their
14
cumulative effect.” McGill, 16 F.4th at 685.
15
Because Supreme Court precedent does not recognize the doctrine of cumulative
16
error, and because this Court has determined that no prejudice resulted from the errors
17
alleged by Speer, the claim of cumulative prejudice is meritless.
18
J.
19
Claim 29:
20
Speer raises a series of “systemic claims” consisting primarily of challenges to
21
capital punishment in general and Arizona’s death penalty statute in particular. The claims
22
are meritless or non-cognizable.32
23
A.
Systemic Challenges
Speer alleges that Arizona’s capital-sentencing scheme violates the Eighth
24
and Fourteenth Amendments because it does not sufficiently channel the sentencer’s
25
discretion. (Doc. 13 at 262.) The Arizona Supreme Court’s denial of this claim, Speer, 221
26
Ariz. at 466, 212 P.3d at 804, was neither contrary to nor an unreasonable application of
27
28
32
Speer lists the individual claims encompassed by Claim 29 as (A) through (O).
The Court follows that format in addressing the claims.
- 140 -
1
clearly-established federal law.
2
Arizona’s death penalty scheme allows only certain, statutorily defined aggravating
3
factors to be considered in determining eligibility for the death penalty. “The presence of
4
aggravating circumstances serves the purpose of limiting the class of death-eligible
5
defendants, and the Eighth Amendment does not require that these aggravating
6
circumstances be further refined or weighed by [the sentencer].” Blystone v. Pennsylvania,
7
494 U.S. 299, 306–07 (1990). The Ninth Circuit and the United States Supreme Court have
8
upheld Arizona’s death penalty statute against allegations that particular aggravating
9
factors do not adequately narrow the sentencer’s discretion. See Jeffers, 497 U.S. 764, 774–
10
77 (1990); Walton, 497 U.S. at 639, 649–56; Woratzeck, 97 F.3d at 335. Claim 29(A) is
11
denied.
12
B.
Speer alleges that the death penalty is irrationally and arbitrarily imposed and
13
serves no purpose that is not adequately addressed by life in prison. (Doc. 13 at 265.) The
14
Arizona Supreme Court’s denial of this claim, Speer, 221 Ariz. at 466, 212 P.3d at 804,
15
was neither contrary to nor an unreasonable application of clearly-established federal law.
16
See Walton, 497 U.S. at 655–56; Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998); see
17
also Andriano v. Shinn, No. CV-16-01159-PHX-SRB, 2021 WL 184546, at *81 (D. Ariz.
18
Jan. 19, 2021); Roseberry v. Ryan, No. 15-CV-1507-PHX-NVW, 2019 WL 3556932 at
19
*37 (D. Ariz. August 5, 2019). Speer “simply fails to provide any clearly established
20
authority in support of his contention.” Roybal v. Davis, 148 F.Supp.3d 958, 1111 (S.D.
21
Cal. 2015). Claim 29(B) is denied.
22
C.
Speer alleges that Arizona’s capital-sentencing scheme unconstitutionally
23
limits full consideration of mitigation by requiring the defendant to prove mitigating
24
circumstances by a preponderance of the evidence. (Doc. 13 at 266.) The Arizona Supreme
25
Court’s denial of this claim, Speer, 221 Ariz. at 466, 212 P.3d at 804, was neither contrary
26
to nor an unreasonable application of clearly-established federal law. The Supreme Court
27
has specifically rejected the argument that the Arizona statute is unconstitutional because
28
it imposes on defendants the burden of establishing, by a preponderance of the evidence,
- 141 -
1
the existence of mitigating circumstances sufficiently substantial to call for leniency.
2
Walton, 497 U.S. at 649–51. The Court has subsequently reaffirmed that the reasoning in
3
Walton still controls regarding burdens of persuasion. See Marsh, 548 U.S. at 173 (holding
4
that “a state death penalty statute may place the burden on the defendant to prove that
5
mitigating circumstances outweigh aggravating circumstances”). Once the government has
6
properly carried its burden of establishing death eligibility, “it [does] not offend the
7
Constitution to put the burden on [defendant] to prove any mitigating factor by a
8
preponderance of the evidence.” United States v. Mitchell, 502 F.3d 931, 993 (9th Cir.
9
2007) (citations omitted). Claim 29(C) is denied.
10
D.
Speer alleges that the (F)(6) “especially heinous, cruel or depraved”
11
aggravating factor is unconstitutionally vague and overbroad. (Doc. 13 at 267.) The
12
Arizona Supreme Court’s denial of this claim, Speer, 221 Ariz. at 466, 212 P.3d at 804,
13
was neither contrary to nor an unreasonable application of clearly-established federal law.
14
The United States Supreme Court and the Ninth Circuit have upheld Arizona’s death
15
penalty statute against allegations that particular aggravating factors, including the (F)(6)
16
factor, do not adequately narrow the sentencer’s discretion. See Jeffers, 497 U.S. at 774–
17
77; Walton, 497 U.S. at 652–56. In Walton the Supreme Court held that the “especially
18
heinous, cruel or depraved” aggravating circumstance was facially vague but the vagueness
19
was remedied by the Arizona Supreme Court’s clarification of the factor’s meaning. 497
20
U.S. at 654; see also Smith v. Ryan, 823 F.3d 1270, 1294–95 (9th Cir. 2016). Speer argues
21
that Walton no longer controls after Arizona switched to jury sentencing in capital cases.
22
(Doc. 13 at 270.) This is unpersuasive. “There is no clearly established federal law holding
23
that jury instructions based on the Arizona Supreme Court’s narrowing construction are
24
inadequate.” Dixon v. Ryan, No. CV-14-258-PHX-DJH, 2016 WL 1045355, at *45 (D.
25
Ariz. Mar. 16, 2016), aff’d, 932 F.3d 789 (9th Cir. 2019). Claim 29(D) is denied.
26
E.
Speer alleges that the trial court’s jury instructions improperly limited the
27
mitigation evidence the jury could consider. (Doc. 13 at 271.) The court instructed the jury
28
that “Evidence is irrelevant and should not be considered by you individually if it is mere
- 142 -
1
sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling.”
2
(EIR 752 at 9.) The Arizona Supreme Court’s denial of this claim, Speer, 221 Ariz. at 466,
3
212 P.3d at 804, was a reasonable application of clearly-established federal law. “[F]ederal
4
courts have consistently held that jury instructions admonishing the jury to base its penalty
5
determination on mitigating or aggravating evidence, not on sympathy for the defendant,
6
pass constitutional muster.” Mayfield v. Woodford, 270 F.3d 915, 923 (9th Cir. 2001)
7
(citing Victor v. Nebraska, 511 U.S. 1, 13 (1994); Johnson v. Texas, 509 U.S. 350, 371–72
8
(1993); California v. Brown, 479 U.S. 538, 542–43 (1987)). Claim 29(E) is denied.
9
F.
Speer alleges that the death penalty is cruel and unusual punishment “under
10
any circumstances.” (Doc. 13 at 273.) He does not indicate how the Arizona Supreme
11
Court’s denial of this claim, Speer, 221 Ariz. at 466, 212 P.3d at 804, conflicts with or
12
unreasonably applies clearly-established federal law, which holds that the death penalty
13
does not constitute cruel and unusual punishment. See Gregg v. Georgia, 428 U.S. 153,
14
169 (1976); see also Glossip v. Gross, 576 U.S. 863, 881 (2015) (“[W]e have time and
15
again reaffirmed that capital punishment is not per se unconstitutional.”); Roper v.
16
Simmons, 543 U.S. 551, 568–69 (2005) (noting that the death penalty is constitutional when
17
applied to a narrow category of crimes and offenders). Claim 29(F) is denied.
18
G.
Speer alleges that Arizona’s capital-sentencing scheme violates the Eighth
19
and Fourteenth Amendments because it affords the prosecutor unbridled discretion to seek
20
the death penalty. (Doc. 13 at 276.) The Arizona Supreme Court’s denial of this claim,
21
Speer, 221 Ariz. at 466, 212 P.3d at 804, was neither contrary to nor an unreasonable
22
application of clearly-established federal law.
23
The Supreme Court has held that prosecutors have wide discretion in making the
24
decision whether to seek the death penalty. See McCleskey, 481 U.S. at 296–97; Gregg,
25
428 U.S. at 199 (holding that pre-sentencing decisions by actors in the criminal justice
26
system that may remove an accused from consideration for the death penalty are not
27
unconstitutional). In Smith the Ninth Circuit rejected the argument that Arizona’s death
28
penalty statute is constitutionally infirm because “the prosecutor can decide whether to
- 143 -
1
2
seek the death penalty.” 140 F.3d at 1272. Claim 29(G) is denied.
H.
Speer alleges that Arizona’s capital-sentencing scheme discriminates against
3
poor, young male defendants. (Doc. 13 at 276.) The Arizona Supreme Court reasonably
4
applied clearly-established federal law in denying this claim. Speer, 221 Ariz. at 466, 212
5
P.3d at 804. “[A] defendant who alleges an equal protection violation has the burden of
6
proving ‘the existence of purposeful discrimination’” and must demonstrate that such
7
discrimination had an effect on him. McCleskey, 481 U.S. at 292 (quoting Whitus v.
8
Georgia, 385 U.S. 545, 550 (1967)). Therefore, to prevail on this claim, Speer “must prove
9
that the decisionmakers in his case acted with discriminatory purpose.” Id. He does not
10
attempt to meet this burden, offering no evidence specific to his case that would support
11
an inference that sex, race, economic status, or the race of his victims played a part in his
12
sentence. See Richmond v. Lewis, 948 F.2d 1473, 1490–91 (1990) (holding that statistical
13
evidence that Arizona’s death penalty is discriminatorily imposed based on race, sex, and
14
socioeconomic background is insufficient to prove decisionmakers in petitioner’s case
15
acted with discriminatory purpose), vacated on other grounds, 986 F.2d 1583 (9th Cir.
16
1993). Claim 29(H) is denied.
17
I.
Speer alleges that the absence of proportionality review of death sentences
18
by Arizona courts violates his constitutional rights. (Doc. 13 at 278.) The Arizona Supreme
19
Court’s denial of this claim, Speer, 221 Ariz. at 466, 212 P.3d at 804, was neither contrary
20
to nor an unreasonable application of clearly-established federal law. As noted above, there
21
is no federal constitutional right to proportionality review of a death sentence. McCleskey,
22
481 U.S. at 306 (citing Pulley, 465 U.S. at 43); see Allen, 395 F.3d at 1018–19. The Ninth
23
Circuit has explained that the “substantive right to be free from a disproportionate
24
sentence” is protected by the application of “adequately narrowed aggravating
25
circumstance[s].” Ceja v. Stewart, 97 F.3d 1246, 1252 (9th Cir. 1996). Claim 29(I) is
26
denied.
27
28
J.
Speer alleges that Arizona’s death penalty scheme is unconstitutional
because it does not require the State to prove beyond a reasonable doubt that death is the
- 144 -
1
appropriate sentence. (Doc. 13 at 279.) The Arizona Supreme Court’s denial of this claim,
2
Speer, 221 Ariz. at 24, 212 P.3d at 805, was neither contrary to nor an unreasonable
3
application of clearly-established federal law.
4
The Constitution does not require a death penalty statute to set forth specific
5
standards for a capital sentencer to follow in its consideration of aggravating and mitigating
6
circumstances. See Zant, 462 U.S. at 875 n.13 (1983) (explaining that “specific standards
7
for balancing aggravating against mitigating circumstances are not constitutionally
8
required”); see also Tuilaepa, 512 U.S. at 979–80 (“A capital sentencer need not be
9
instructed how to weigh any particular fact in the capital sentencing decision.”). In Kansas
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
v. Marsh, the Supreme Court explained:
In aggregate, our precedents confer upon defendants the right to present
sentencers with information relevant to the sentencing decision and oblige
sentencers to consider that information in determining the appropriate
sentence. The thrust of our mitigation jurisprudence ends here. “[W]e have
never held that a specific method for balancing mitigating and aggravating
factors in a capital sentencing proceeding is constitutionally required.”
548 U.S. 163, 175 (2006) (quoting Franklin, 487 U.S. at 179).
Thus the Constitution does not require the capital sentencer to find that the
aggravating circumstances outweigh mitigation beyond a reasonable doubt. See Smith, 140
F.3d at 1272 (rejecting claim based on failure to apply beyond a reasonable doubt standard
at sentencing); Williams v. Calderon, 52 F.3d 1465, 1485 (9th Cir. 1995) (“[T]he failure of
the statute to require a specific finding that death is beyond a reasonable doubt the
appropriate penalty does not render it unconstitutional.”); McGill, No. CV-12-01149-PHXJJT, 2019 WL 160732, at *28 (“There is no Supreme Court authority requiring a jury to be
instructed on a burden of proof in the sentencing phase of a capital case.”). Claim 29(J) is
denied.
K.
Speer alleges that Arizona’s capital sentencing scheme is unconstitutional
because it requires a death sentence whenever one aggravating factor and no mitigating
circumstances are found. (Doc. 13 at 281.) The Arizona Supreme Court’s denial of this
claim, Speer, 221 Ariz. at 466, 212 P.3d at 804, was a reasonable application of clearly- 145 -
1
established federal law. The Supreme Court has rejected the contention that Arizona’s
2
death penalty statute is impermissibly mandatory. See Walton, 497 U.S. at 651–52; Marsh,
3
548 U.S. at 173–74. Claim 29(K) is denied.
4
L.
Speer alleges that Arizona’s capital sentencing scheme violates the Eighth
5
and Fourteenth Amendments because it does not provide objective standards to guide the
6
sentencer in weighing aggravating factors against mitigating circumstances. (Doc. 13 at
7
283.) The Arizona Supreme Court’s denial of this claim, Speer, 221 Ariz. at 466, 212 P.3d
8
at 804, was neither contrary to nor an unreasonable application of clearly-established
9
federal law.
10
The United States Supreme Court has held that in a capital case “the sentencer may
11
be given ‘unbridled discretion in determining whether the death penalty should be imposed
12
after it has found that the defendant is a member of the class made eligible for that
13
penalty.’” Tuilaepa, 512 U.S. at 979–80 (quoting Zant, 462 U.S. at 875); see Franklin, 487
14
U.S. at 179 (noting that the Court has never held that a specific method for balancing
15
mitigating and aggravating factors is constitutionally required). Accordingly, a capital
16
sentencer “need not be instructed how to weigh any particular fact in the capital sentencing
17
decision.” Id. at 979. Claim 29(L) is denied.
18
M.
Speer alleges that he will be denied a fair clemency process in violation of
19
the Eighth and Fourteenth Amendments. (Doc. 13 at 283.) This claim is not cognizable on
20
federal habeas review. Habeas relief may only be granted on claims that a prisoner “is in
21
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
22
§ 2254(a). Speer’s challenge to state clemency procedures and proceedings does not
23
represent an attack on his detention and thus does not constitute a proper ground for relief.
24
See Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam); see also Woratzeck
25
v. Stewart, 118 F.3d 648, 653 (9th Cir. 1997). Claim 29(M) is denied.
26
N.
Speer alleges that his right to be free from cruel and unusual punishment
27
would be violated if the State executed him after he has spent 15 years in jail and on death
28
row. (Doc. 13 at 284.) This claim is meritless.
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1
“The Supreme Court has never held that execution after a long tenure on death row
2
is cruel and unusual punishment.” Allen v. Ornoski, 435 F.3d 946, 958 (9th Cir. 2006); see
3
Lackey v. Texas, 514 U.S. 1045 (1995) (mem.) (Stevens, J. & Breyer, J., discussing denial
4
of certiorari and noting the claim has not been addressed); Thompson v. McNeil, 556 U.S.
5
1114 (2009) (mem.) (Stevens, J. & Breyer, J., dissenting from denial of certiorari; Thomas,
6
J., concurring, discussing Lackey issue); see also Knight v. Florida, 528 U.S. 990 (1999)
7
(Thomas, J., concurring in denial of certiorari) (“I am unaware of any support in the
8
American constitutional tradition or in this Court’s precedent for the proposition that a
9
defendant can avail himself of the panoply of appellate and collateral procedures and then
10
complain when his execution is delayed.”).
11
Circuit courts have consistently held that prolonged incarceration under a sentence
12
of death does not violate the Eighth Amendment. See McKenzie v. Day, 57 F.3d 1493,
13
1493–94 (9th Cir. 1995) (en banc); White v. Johnson, 79 F.3d 432, 438 (5th Cir. 1996);
14
Stafford v. Ward, 59 F.3d 1025, 1028 (10th Cir. 1995). Claim 29(N) is denied.
15
O.
Speer alleges that execution by lethal injection is cruel and unusual
16
punishment. (Doc. 13 at 287.) The Arizona Supreme Court denied the claim on direct
17
appeal, Speer, 221 Ariz. at 466, 212 P.3d at 804, and the state court denied it during the
18
PCR proceedings. These rulings were not contrary to or unreasonable applications of
19
clearly-established federal law. See, e.g., Baze v. Rees, 553 U.S. 35 (2008). The Ninth
20
Circuit has concluded that Arizona’s lethal injection protocol does not violate the Eighth
21
Amendment. Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011).
22
In addition, prior to execution, Speer may present this claim in a separate civil rights
23
action under 42 U.S.C. § 1983. See Hill v. McDonough, 547 U.S. 573, 579–80, (2006)
24
(recognizing that a challenge to the State’s execution method may be brought in a § 1983
25
action); Nance v. Ward, 142 S. Ct. 2214, 2223 (2022). Claim 29(O) is denied.
26
IV.
EVIDENTIARY DEVELOPMENT
27
Speer requests evidentiary development with respect to his claims of ineffective
28
assistance of trial counsel (Claims 1–7, 14–19), appellate counsel (Claim 26), and PCR
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1
counsel (Claim 27); prosecutorial misconduct (Claim 13); juror misconduct (Claim 25);
2
and cumulative prejudice (Claim 28). (Doc. 23.) He seeks discovery, an evidentiary
3
hearing, and expansion of the record under Rules 6, 7, and 8 of the Rules Governing § 2254
4
Cases, 28 U.S.C. foll. § 2254. (Id.)
5
A.
Exhausted Claims
6
Claim 7 and portions of Claim 14, alleging ineffective assistance of trial counsel,
7
were raised and denied on the merits in state court. As set forth above, this Court found
8
that the PCR court’s denial of the claims was not unreasonable under 28 U.S.C. § 2254(d).
9
Because they did not satisfy § 2254(d)(1) or (2) based on the state court record, the Court
10
is precluded from considering new evidence in support of the claims. Pinholster, 563 U.S.
11
at 181; Gulbrandson, 738 F.3d at 993–94 & n.6.
12
B.
13
The remaining claims for which Speer seeks evidentiary development were not
14
presented in state court. Therefore, the Court’s “‘discretion . . . to consider new evidence’
15
. . . is instead cabined by the requirement in § 2254(e)(2) that the petitioner must have
16
attempted ‘to develop the factual basis of [the] claim in State court.’” Stokley v. Ryan, 659
17
F.3d 802, 808 (9th Cir. 2011) (quoting Pinholster, 563 U.S. at 186).
Unexhausted Claims
18
Under § 2254(e)(2), a federal court may not hold an evidentiary hearing unless it
19
first determines that the petitioner exercised diligence in trying to develop the factual basis
20
of the claim in state court. See Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000). If
21
the failure to develop a claim’s factual basis is attributable to the petitioner, the court may
22
hold a hearing only if the claim relies on (1) “a new rule of constitutional law, made
23
retroactive to cases on collateral review by the Supreme Court, that was previously
24
unavailable” or (2) “a factual predicate that could not have been previously discovered
25
through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2). In addition, “the facts
26
underlying the claim [must] be sufficient to establish by clear and convincing evidence that
27
but for constitutional error, no reasonable fact finder would have found the [petitioner]
28
guilty of the underlying offense.” Id.
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1
Section 2254(e)(2) limits a petitioner’s ability to present new evidence through a
2
Rule 7 motion to the same extent that it limits the availability of an evidentiary hearing.
3
See Cooper–Smith, 397 F.3d 1236, 1241 (9th Cir. 2005), overruled on other grounds by
4
Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016); Holland v. Jackson, 542 U.S. 649, 652–
5
53 (2004) (per curiam). Accordingly, a petitioner who seeks to introduce new affidavits
6
and other documents never presented in state court must demonstrate diligence in
7
developing the factual basis in state court or satisfy the requirements of § 2254(e)(2).
8
Speer contends that the failure to develop the factual basis of these claims resulted
9
from the ineffective assistance of PCR counsel. (See, e.g., Doc. 23 at 22.) This argument
10
is foreclosed by the Supreme Court’s recent decision in Ramirez, which held that “under §
11
2254(e)(2), a federal habeas court may not conduct an evidentiary hearing or otherwise
12
consider evidence beyond the state-court record based on ineffective assistance of state
13
postconviction counsel.” Ramirez, 142 S. Ct. at 1734. According to Ramirez, a petitioner
14
is at fault when PCR counsel is negligent in developing the record, and therefore “a federal
15
court may order an evidentiary or otherwise expand the state-court record only if the
16
prisoner can satisfy § 2254(e)(2)’s stringent requirements.” Id. at 1735.
17
Speer does not attempt to meet those standards. The claims for which he seeks
18
evidentiary development do not rely on a new, retroactive rule of constitutional law. Nor
19
do they rely on a factual predicate that could not have been discovered previously through
20
due diligence. The evidence Speer seeks to develop, consisting largely of additional
21
information from his defense team and from family members, existed at the time of the
22
state court proceedings, so there is no new factual predicate under § 2254(e)(2).
23
24
Speer is not entitled to evidentiary development.
V.
CERTIFICATE OF APPEALABILITY
25
Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, a petitioner
26
cannot take an appeal unless a certificate of appealability (“COA”) has been issued by an
27
appropriate judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases
28
provides that the district judge must either issue or deny a certificate of appealability when
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1
it enters a final order adverse to the applicant. If a certificate is issued, the court must state
2
the specific issue or issues that satisfy 28 U.S.C. § 2253(c)(2).
3
Under § 2253(c)(2), a certificate of appealability may issue only when the petitioner
4
“has made a substantial showing of the denial of a constitutional right.” This showing can
5
be established by demonstrating that “reasonable jurists could debate whether (or, for that
6
matter, agree that) the petition should have been resolved in a different manner” or that the
7
issues were “adequate to deserve encouragement to proceed further.” Slack, 529 U.S. at
8
484 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings,
9
a certificate of appealability will issue only if reasonable jurists could debate whether the
10
petition states a valid claim of the denial of a constitutional right and whether the court’s
11
procedural ruling was correct. Id.
12
The Court finds that reasonable jurists could debate its resolution of Claim 7,
13
alleging that trial counsel performed ineffectively by failing to move to vacate his
14
conviction and sentence after the same prosecutor presented a conflicting theory of the
15
crime at Womble’s trial, and Claim 8, alleging that Speer’s due process rights were violated
16
when the trial court failed to suppress the jail recordings. The Court also finds that
17
reasonable jurists could debate its resolution of Claim 14, alleging ineffective assistance of
18
counsel at sentencing. See Browning v. Baker, 875 F.3d 444, 471 (finding district court errs
19
by separating a petitioner’s arguments into particular instances of counsel’s conduct for
20
purposes of issuing a COA); see also Montiel v. Chappell, NO. 15-99000, 2022 WL
21
3132416, *1 (9th Cir. August 5, 2022) (same).
22
VI.
23
24
CONCLUSION
The Court has considered Speer’s claims and determined that none establish that he
is entitled to habeas relief.
25
Based on the foregoing,
26
IT IS HEREBY ORDERED denying Speer’s Petition for Writ of Habeas Corpus
27
(Doc. 13). The Clerk of Court shall enter judgment accordingly.
28
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1
2
3
4
5
6
7
8
IT IS FURTHER ORDERED denying Speer’s request for evidentiary
development. (Doc. 23.)
IT IS FURTHER ORDERED granting a certificate of appealability with respect
to Claims 7, 8, and 14.
IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of
this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ
85007-3329.
Dated this 14th day of March, 2023.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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