Ward v. Schriro et al

Filing 44

ORDER ADOPTING REPORT AND RECOMMENDATIONS 24 . IT IS FURTHER ORDERED denying Petitioner Sean Patrick Ward's Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. section 2254, (Doc. 1). IT IS FURTHER ORDERED gran ting Petitioner a Certificate of Appealability and leave to proceed in forma pauperis. Petitioner has made a substantial showing of the denial of a constitutional right with respect to the following issue(s): whether the prosecutor's comments du ring closing arguments violated due process. (See document for full details). Signed by Judge Mary H Murguia on 9/30/10. (LAD) Modified on 10/1/2010 (LAD). Correct to reflect file date of 9/30/10. ***REDISTRIBUTION - Notice of Electronic Filing regenerated on 10/1/2010 (DTN).***

Ward v. Ryan et al

Doc. 44

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WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Petitioner, ) ) vs. ) ) Dora P. Schriro, Director, Arizona) D e p a r t me n t of Corrections; Terry) ) Goddard, Attorney General, ) ) Respondents. ) ) Sean Patrick Ward,

No. CV 07-606-PCT-MHM ORDER

Currently before the Court is Petitioner Sean Patrick Ward's Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254, (Doc. 1), and Magistrate Judge Mark Aspey's Report and Recommendation. (Doc. 24). After reviewing the record and determining oral argument is unnecessary, the Court issues the following Order. I. BACKGROUND On March 19, 2007, Petitioner, through counsel, filed a petition seeking a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Respondents filed an Answer to Petition for Writ of Habeas Corpus ("Answer") on September 14, 2007. (Doc. 13). On December 7, 2007, Petitioner replied. (Doc. 23). Magistrate Judge Mark Aspey filed a Report and Recommendation ("R&R") on September 30, 2008, recommending that Petitioner's habeas petition be denied in full. (Doc. 24). On December 1, 2008, Petitioner

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filed his objections to the R&R, (Doc. 27), which Respondents replied to on May 19, 2009. (Doc. 32). The objections became fully briefed on June 15, 2009. (Doc. 36). The state level factual and procedural background of this case is extensively and thoroughly detailed with citation to the record in Section I, "Procedural History," of Magistrate Judge Aspey's R&R. (Doc. 24, pp. 1­42). It does not appear that the Petitioner objects to the R&R's recitation of the facts, which includes detailed accounts of the evidence and testimony brought forth at trial and at the Post Conviction Relief ("PCR") evidentiary hearing. Instead, he takes issue with Magistrate Judge Aspey's interpretation of those facts as they pertain to his claims for relief. This Court, therefore, fully incorporates by reference Section I of the R&R into this Order, and which should be read in conjunction with this Order. It also notes that this case stems from an April 6, 2000, Mohave County, Arizona, grand jury indictment that charged Petitioner with the first-degree murder of his ex-girlfriend Ms. Kristine McLaughlin. (Answer, Exh. A1). At trial, Petitioner was represented by counsel; Mr. Engan. On Friday, March 16, 2001, the jury returned a verdict of guilt on the offense of second degree murder. (Id., Exh. A). On April 13, 2001, after a hearing, Petitioner was sentenced to a term of 22 years imprisonment pursuant to this conviction. (Id., Exh. R). On April 17, 2001, Petitioner filed a timely notice of appeal from his judgment and sentence. (Id., Exh. A). Petitioner was appointed counsel to represent him in his direct appeal. (Id.) Petitioner raised eleven issues, including a due process claim regarding the prosecutor's closing arguments and the failure to video-tape the police station photo line-up interview with the victim's son, Bryce McLaughlin. (Id., Exh. S). On September 26, 2002, the Arizona Court of Appeals rejected all of Petitioner's claims and affirmed his conviction and sentence in a memorandum decision. (Id., Exh. V). Petitioner sought review of the decision by the Arizona Supreme Court, which was summarily denied on March 18, 2003. (See Petition for Habeas Corpus, Doc. 1 at 2). Petitioner did not seek a writ of certiorari from the United States Supreme Court. On May 20, 2003, Petitioner initiated a timely action seeking state post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. In his action for -2-

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post-conviction relief Petitioner raised three general arguments, including an allegation that his trial counsel was unconstitutionally ineffective. (Answer, Exh. W). The Mohave County Superior Court found that Petitioner's ineffective assistance of counsel claim was colorable and conducted an evidentiary hearing regarding Petitioner's claims on April 23, 2004. (Id., Exh. A). On May 17, 2004, the trial court issued a lengthy order denying post-conviction relief. (Id.). Petitioner filed a timely petition for review with the Arizona Court of Appeals. (Id., Exh. C). On October 17,2005, the Arizona Court of Appeals summarily denied review of the trial court's denial of relief. (Id., Exh. AA). Petitioner sought review of this decision by the Arizona Supreme Court, which was denied on May 25, 2006. (Id., Exh. BB). II. STANDARD OF REVIEW A district court must review the legal analysis in a Magistrate Judge's Report and Recommendation de novo. See 28 U.S.C. § 636(b)(1)(C). In addition, a district court must review the factual analysis in the Report and Recommendation de novo for those facts to which objections are filed. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also 28 U.S.C. § 636(b)(1)(C) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."). "Failure to object to a magistrate judge's recommendation waives all objections to the judge's findings of fact." Jones v. Wood, 207 F.3d 557, 562 n. 2 (9th Cir. 2000). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court "shall not" grant habeas relief with respect to "any claim that was adjudicated on the merits in state court proceedings" unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court, or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court's decision is "contrary to" clearly established precedent if (1) "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or (2) "if the state court confronts a set of facts that are -3-

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materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent." Taylor, 529 U.S. at 405-06. "A state court's decision can involve an `unreasonable application' of federal law if it either correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable." Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002). Thus, a state court's application of federal law must be more than incorrect or erroneous, it must be objectively unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Furthermore, "[w]hen applying these standards, the federal court should review the `last reasoned decision' by a state court." Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). III. EXHAUSTION The Petition for Writ of Habeas Corpus makes two overarching legal claims: (1) ineffective assistance of counsel; and (2) violation of due process. Before addressing the merits of Petitioner's claims, however, the Court must consider Respondents' allegations concerning exhaustion. In their Answer, Respondents argued that Petitioner did not properly exhaust three of his instant claims. These are: (1) ineffective assistance of counsel ("IAC") predicated on trial counsel's failure to interview and call two potential alibi witnesses, Yvonne Johnson and Philip Enoch; (2) IAC predicated on trial counsel's failure to discover and present evidence regarding the lack of motor oil outside of Ms. McLaughlin's residence; and (3) IAC predicated on trial counsel's closing argument. (Doc. 13 at 54­55). In his Reply, Petitioner admitted that he did not properly exhaust the ineffectiveness claim concerning trial counsel Engan's failure to interview Yvonne Johnson and Philip Enoch, but argued that the other two claims identified by Respondents are fully exhausted and properly before this Court. Magistrate Judge Aspey did not address Respondents' exhaustion arguments in his R&R, which Respondents pointed out in their response to Petitioner's objections. (Doc. 32, p.2, n.1). Accordingly, because Respondents have renewed their -4-

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exhaustion arguments, this Court will consider them now. (Id.). A. Legal Standard

Under 28 U.S.C. § 2254(b)(1) a federal court can only consider a petitioner's writ of habeas corpus after the petitioner exhausts all available state remedies. Coleman v. Thompson, 501 U.S. 722, 731 (1991). " Exhaustion requires the state prisoner give the state courts a `fair opportunity to act' on each of his claims before he presents those claims in a federal habeas petition." Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2002) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999)). A claim is fairly presented if the petitioner described both the operative facts and the legal theory on which his claim is based to the appropriate state court. Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001). With the exception of death penalty cases, an Arizona prisoner exhausts his state remedies by fairly presenting his claims to the Arizona Court of Appeals. See, e.g., Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2004) ("To exhaust his Arizona remedies, Castillo had to give the Arizona courts a `fair opportunity' to act on his federal due process claim before presenting it to the federal courts. . . . We consider Castillo's briefing to the Arizona Court of Appeals to determine whether he fairly presented his federal due process claim to the Arizona courts.") (citations omitted); Swoops v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) ("Arizona has declared that its complete round [of appellate review] does not include discretionary review before the Arizona Supreme Court."). B. Discussion 1. IAC Based on Engan's Closing Argument

The Court turns first to Respondents' argument that Petitioner failed to exhaust his ineffective assistance of counsel claim predicated on Engan's closing argument. Petitioner alleges that Engan performed ineffectively during his closing argument by both undermining his suicide and third-party murderer defenses, and by bolstering the state's case by referring to irrelevant and prejudicial evidence introduced by the prosecution. The Parties agree that Petitioner properly exhausted a claim for IAC based on Mr. Engan's closing argument. Instead, they dispute whether the claim that Petitioner exhausted is based on the same -5-

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underlying facts as the claim presented in the instant habeas petition. This is an important distinction; Petitioner fairly presented his claim in state court only if the state court claim described both the same set of operative facts, in addition to the applicable law. Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001). Petitioner first raised an IAC claim based on Engan's closing argument in his Petition for Post-Conviction Relief. Petitioner argued that Engan performed ineffectively by "fail[ing] to argue vital evidence that had been presented at trial in support of his defense of suicide, accident or third party." (Answer, Exh. W at 26). In support of this claim, Petitioner highlighted numerous examples of evidence and trial testimony elicited during trial and that supported a suicide theory, but which Engan failed to argue during his closing. Specifically, Petitioner noted that Engan did not mention Dr. Keen's testimony that a person could cut off their air supply, pass out, and die, but still not evidence neck trauma, and that such a death would be consistent with Dr. Nelson's findings and testimony concerning the pristine condition of McLaughlin's neck. He also claimed that Engan failed to argue any evidence that disputed Dr. Keen's conclusion of homicide, noting that Engan failed to remind the jury of Dr. Keen's admission that he did not examine certain of McLaughlin's neck tissues and of Dr. Keen's statement that he did not believe the bruises he found on McLaughlin's hands and arms were defensive bruises. Finally, Petitioner also argued that Engan failed to tell the jury that the ovoid bruises on McLaughlin's front left scalp area could have been caused by the Buzz Lightyear doll found next to her body, and that other evidence found at the scene, such as the green box, supported a suicide theory. In his Petition for Review to the Arizona Court of Appeals, Petitioner also made reference to Engan's allegedly ineffective closing argument, although not explicitly. As part of his argument that Engan fundamentally misunderstood the crime scene because he failed to consult with a crime scene or medical examiner, Petitioner cited Engan's closing argument, suggesting it evidenced this misunderstanding. (Answer, Exh. Z at 5­6). The only other mention of Plaintiff's closing argument is found under the heading: "Counsel was ineffective by failing to present autopsy photos and evidence to rebut the State's theory that -6-

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DNA under Kristine's fingernails was the result of her clawing at the rope around her neck during hanging proving a violent and prolonged death." (Id. at 11). Petitioner noted that the prosecutor, during his closing, argued that the DNA under McLaughlin's fingernail proved that she scratched at the roper around her neck and suffered a painful death, and that Engan failed to rebut this evidence during his closing argument. (Id.). The evidence on which Petitioner currently rests his IAC claim is very different from that presented in state court. In his instant Petition for Writ of Habeas Corpus, Petitioner argues that Engan performed ineffectively during closing by mentioning prosecution evidence that painted Petitioner in a bad light, such as Petitioner's conviction for drug possession and proclivity for non-traditional sexual practices, such as anal sex. He also points out that Engan undercut his own theory of the case by explaining to jurors that the state would likely characterize his two-hook suicide theory as "preposterous," and by stating "I don't know who killed her. Frankly, that's not my business. I am not here to tell you that," which, Petitioner argues, discredited the suicide theory, while simultaneously implying McLaughlin's death was, as the prosecution contended, a murder, not a suicide. Finally,

Petitioner argues that Engan bolstered the prosecution's case by: (1) stating that Bryce McLaughlin was "not dumb," and a "pretty smart kid;" (2) noting that Petitioner had been indicted by the grand jury and, therefore, "Someone thinks he is guilty;" and (3) vouching for the intelligence and knowledge of the prosecutor and the police, making the statement, "[the prosecutor and the police] probably know more about this case than I do. They have lived with this case almost a year." The claim Petitioner pressed in state court is similar to the one presented in Petitioner's federal habeas petition only to the extent that both allege ineffective performance by Engan during closing argument. The fact, however, that both claims share a general legal theory does not give Petitioner license to rely on a completely different set of operative facts in federal court. See Beaty v. Stewart, 303 F.3d 975, 989 (9th Cir. 2002) (finding conflict of interest claim unexhausted where the conflict on which the petitioner based his claim changed from state court to federal court ). It is well-established that "in order to fulfill -7-

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exhaustion requirements, a petitioner must present to the state courts the substantial equivalent of the claim presented in federal court." Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007). "However, a petitioner may provide further facts to support a claim in federal district court, so long as those facts do not `fundamentally alter the legal claim already considered by the state courts.'" Id. (citing Vasquez v. Hillery, 474 U.S. 254, 260 (1986)). Accordingly, Petitioner argues that his claim is exhausted because his instant petition does nothing more than "provid[e] a slightly different or more detailed explanation of Engan's failures on closing argument." The Court does not agree. In state court, Petitioner claimed that Engan performed ineffectively because he failed to argue trial evidence that supported Engan's theory of suicide, accident, or third party. To factually support this argument, Petitioner pointed to potentially exculpatory testimony and evidence presented at trial that was not mentioned by Engan during his closing. In his federal habeas petition, Petitioner argues that Engan performed ineffectively during closing because he spent significant time discussing "inconsequential facts and evidence" that painted Petitioner in a bad light and undercut his own case in a number of different ways. To support of this claim, Petitioner relies namely on a number of statements Engan made during closing argument. In other words, Petitioner previously based his

allegation of ineffective performance on what Engan did not say during closing. Now, however, Petitioner asks this Court to find Engan performed unreasonably based on what he did say. None of the statements on which Petitioner now relies, however, were brought to the state courts' attention. Accordingly, it does not appear to the Court that petitioner has presented a substantially similar claim to the one he presented at state court. Although Petitioner makes the same general legal claim, the facts he has marshaled to support that argument have fundamentally altered its character. And these do not, as Petitioner suggests, merely place his state claim in a stronger evidentiary posture or add greater specificity to the factual allegations, as none is remotely related to Engan's failure to bring trial evidence to the jury's attention that supported his defense theories. Instead these facts lead towards a different -8-

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conclusion--the one strongly suggested in the Petition--that Engan performed ineffectively during closing because he highlighted prejudicial information and otherwise bolstered the prosecutions case. This allegation, however, is neither made nor even suggested in Petitioner's state court petitions, and as the Court has already mentioned, the facts that underpin this allegations are nowhere to be found either. Cf. Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007) (finding petitioner exhausted his state remedy where he "at least ma[de] the general allegations of his counsel's lack of penalty phase preparation to the Arizona Supreme Court (including improper delegation to an inexperienced subordinate and failure to prepare mental health experts)"). The Arizona State courts, therefore, were not afforded a meaningful opportunity to consider this allegation of legal error. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004), and this Court must find that Petitioner has not exhausted his IAC claim predicated on Engan's closing argument. 2. IAC based on Engan's Failure to Discover the Lack of Motor Oil

Respondents also argue that Petitioner's did not fully exhaust his IAC claim predicated on Engan's failure to discover and present evidence regarding the lack of motor oil outside of Ms. McLaughlin's residence. The record shows that Petitioner referenced Engan's failure to discover the lack of motor oil in his Petition for Post-Conviction Relief as part of his argument that Engan failed to properly investigate facts which would support an alibi defense. Petitioner argued, as he does here, that Engan failed to investigate Petitioner's Pinto to confirm the presence of an oil leak, and that the crime scene photos and video did not show the presence of any new oil leaks, just some older stains that appear to have been washed, suggesting Petitioner did not go to McLaughlin's house on the night of the murder. (Exh. X, pp.9­10). Petitioner's Petition for Review to the Arizona Court of Appeal, however, is devoid of any mention of this claim or, for that matter, any other claim based on Engan's failure to investigate and pursue potential alibi evidence. Instead, in the Petition, Petitioner made only a general allegation that "Egan was Ineffective by Failing to Investigate the Scene and Present a Clearly Viable Suicide or Accident Defense in a Hanging Case Where the Physical Evidence was Inconsistent with the Child Eye-Witness Testimony -9-

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and Verdict," followed by seven specific allegation of ineffectiveness focused on Engan's failure to investigate and, therefore, understand evidence inside McLaughlin's home and in direct proximity to the scene of the hanging. In arguing that he fully exhausted this claim, Petitioner's asserts only that he has exhausted claims that Engan was ineffective in failing to investigate the physical evidence. The issue, however, is not if Petitioner exhausted some claims based on Engan's failure to investigate physical evidence, which he has, but if he exhausted this particular claim, which he has not. Quite simply, Petitioner did not mention the oil leak in his Petition for Review to the Arizona Court of Appeals. And, while a petitioner may provide "further facts to support a claim in federal district court," the oil spill is unrelated to the other investigation claims made by Petitioner in state court, all of which focus on Engan's failure to investigate and understand physical evidence found at the scene of the crime. Lopez, 491 F.3d at 1040. Instead, the oil spill evidence clearly goes towards Engan's failure to investigate potential alibi claims. Petitioner, however, has not exhausted any claims alleging IAC based on Engan's failure to investigate potential alibi evidence. Lopez, 491 F.3d at 1040. Petitioner had an opportunity to present this claim to the Arizona Court of Appeals, but failed to do so. Accordingly any claim predicated on Engan's failure to investigate alibi evidence in the form of the oil leak is not exhausted. C. Procedural Default

Having determined that two of Petitioner's claims are not exhausted, the Court must now consider whether they are procedurally defaulted as well. 1. Legal Standard

If a petition contains claims that were not fairly presented in state court, then the federal court must determine whether any state remedies remain available to the petitioner. See Harris v. Reed, 489 U.S. 255, 268-70 (1989) (O'Connor, J., concurring); Rose v. Lundy, 455 U.S. 509, 519-20 (1982). If remedies are still available in state court, the federal court may dismiss the petition without prejudice pending the exhaustion of the state remedies. Rose, 455 U.S. at 520. However, if the Court finds that the petitioner no longer has state - 10 -

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remedies available, his claims are procedurally defaulted and must be dismissed with prejudice unless petitioner can show a miscarriage of justice, cause and prejudice, or actual innocence that would excuse the default. Teague v. Lane, 489 U.S. 288, 298-99 (1989); Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). The standard for "cause and prejudice" is one of discretion and is intended to be flexible and yielding to exceptional circumstances only. See Hughes v. Id.State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Although both cause and prejudice must be shown to excuse a procedural default, the Court need not examine the existence of prejudice if the petitioner fails to establish cause. See Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Thomas, 945 F.2d at 1123 n.10. Status as an inmate and lack of legal knowledge do not constitute cause for failure to present claims to state courts. Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988)(finding that petitioner's arguments concerning his mental health and reliance upon jailhouse lawyers did not constitute cause); Hughes, 800 F.2d at 909 (9th Cir. 1986) (finding that illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default). Failure to establish cause may be excused "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." See Murray v. Carrier, 477 U.S. 478, 496 (1986). 2. Discussion

Arizona Rule of Criminal Procedure 32 bars a petitioner who has already filed a direct appeal and had a full round of post-conviction relief proceedings from re-raising claims in a subsequent petition that could have been raised in the first one. Ariz. R. Crim P. 32.2(a)(3) ("A defendant shall be precluded from relief under this rule based upon any ground: that has been waived at trial, on appeal, or in any previous collateral proceeding."). The Arizona Supreme Court has interpreted this rule to bar a petitioner from raising claims in a subsequent petition for post-conviction relief that could have been raised in a first such petition, but were not. See Krone v. Hotham, 181 Ariz. 364, 366 (Ariz. 1995) ( "Thus, if a defendant's early petition for post-conviction relief raises a limited number of issues, the defendant waives other issues he could have then raised but did not."). Petitioner's claims - 11 -

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are procedurally defaulted, as he does not have any available remedies left at state court, having already enjoyed a full round of post-conviction relief proceedings. Having determined Petitioner has no remaining state court remedies, the Court must consider whether Petitioner can demonstrate a miscarriage of justice, cause and prejudice, or actual innocence that would excuse the default. Because Petitioner bares the burden of making such a showing and has argued only that his claims are properly exhausted, not addressing procedural default, the Court must find that Petitioner has failed to establish that his claims should be permitted to move forward despite the procedural default. Sandgathe, 314 F.3d at 376. IV. PETITIONER'S CLAIMS FOR INEFFECTIVE ASSISTANCE OF COUNSEL Based on the headings in his Petition for Habeas Corpus, Petitioner only made three IAC claims: (1) failure to hire an investigator; (2) deficient examination of both his and the State's medical expert with regards to the condition of McLaughlin's neck; and (3) ineffective performance during closing. (Doc. 1 at 27, 36, 45). In light of the Court's determinations concerning exhaustion and procedural default, only the former two claims remain. Within each of these IAC claims, however, Petitioner has a tendency to make additional allegations of IAC that are distinct from the one claimed in the section heading. This presents a challenge for the Court, as it must divine what exactly is the conduct, or absence of conduct, that constitutes the deficient performance. Accordingly, despite the fact that Petitioner appears to only have two IAC claims remaining, the Court finds there are in fact six, and will discuss them each separately. Additionally, in his objections to the R&R, Petitioner alleges that Magistrate Judge Aspey correctly cited, but failed to apply the legal standard for ineffective assistance of counsel to his claims. Specifically, Petitioner criticizes the R&R for focusing on the

sufficiency of the evidence as a metric for whether Engan provided effective assistance of counsel. In light of Petitioner's concerns about the application of the ineffectiveness standard, which appear to have some merit, this Court will not merely review the legal conclusions in the R&R de novo, see 28 U.S.C. § 636(b)(1)(c), but instead conduct its own - 12 -

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independent analysis of Petitioner's claims. A. Legal Standard

The right to counsel guaranteed to criminal defendants by the Sixth Amendment "is the right to the effective assistance of counsel." Lord v. Wood, 184 F.3d 1083, 1085 (9th Cir. 1999) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). The two-prong test for establishing ineffective assistance of counsel was set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on an ineffectiveness claim, a defendant must show (1) that counsel's representation fell below an objective standard of reasonableness, (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687-88; Franklin v. Johnson, 290 F.3d 1223, 1237 (9th Cir. 2002). In reviewing trial counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. at 689 (internal quotation omitted). A court may not engage in hindsight analysis, but instead must "evaluate the conduct from counsel's perspective at the time." Id. As the Ninth Circuit has artfully explained: "The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial." Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir. 1998), rev'd on other grounds, 525 U.S. 141 (1998).1

In their papers, Respondents argue that relief based on an ineffectiveness theory is precluded by the fact that Engan did not testify at the evidentiary hearing. In making their argument, Respondents have not cited to, and this Court is unaware of, any authority that supports such a categorical rule. Petitioner, on the other hand, has cited authority that affirmatively demonstrates an IAC claim can proceed, and even succeed, without the testimony of trial counsel. See, e.g., Hamblin v. Mitchell,354 F.3d 482, 492 (6th Cir. 2003) (finding ineffective assistance based on a failure to investigate despite the lack of testimony - 13 -

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If a defendant proves deficient performance, he must still show prejudice. See Strickland, 466 U.S. at 691­92. To establish prejudice, a prisoner must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. B. IAC: Failure to Investigate

Petitioner argues that Engan performed ineffectively by (1) failing to hire an investigator; and (2) failing to adequately investigate potentially exculpatory evidence. Failure to investigate can constitute ineffective assistance of counsel. The Sixth Amendment imposes on "[c]ounsel [] a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at. 691. Counsel has performed ineffectively "where he neither conducted a reasonable investigation nor made a showing of strategic reasons for failing to do so." Avila v. Galaza, 297 F.3d 911, 918-919 (9th Cir. 2002) (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994)). Still, as with all other IAC claims, "[a] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at. 691. 1. Failure to hire an investigator

As a preliminary matter, the Court must reject Petitioner's theory that Engan

from trial counsel at the PCR hearing); Henry v. Scully, 918 F. Supp. 693, 714-15 (S.D.N.Y. 1995) (finding that counsel's decision to not object must be examined as to whether it was within the constitutional boundaries of reasonable competence, where counsel was deceased and could not testify as to his reasons for not objecting). The effect of bringing an ineffectiveness claim without the benefit of trial counsel's testimony, however, is not de minimis. The Supreme Court has explained that the presumption that counsel performed effectively "has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court `may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.'" Yarborough, 540 U.S. at 8 (emphasis added) (quoting Massaro v. United States, 538 U.S. 500, 505, 123 S.Ct. 1690 (2003). Accordingly, while the absence of Engan's testimony may turn out to be consequential, it is not per se determinative. - 14 -

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performed ineffectively by not hiring an investigator or for requesting funds for a courtappointed investigator. Given the gravity of the charges against Petitioner--first degree murder--the Court agrees that hiring an investigator was probably the most prudent course of action. The problem with Petitioner's argument, however, is that he conflates Engan's failure to hire an investigator with Engan's alleged failure to investigate. The two are not identical. Investigation is not the sole province of professional investigators. Undoubtedly, in many instances, a lawyer can conduct an investigation that satisfies the requirements of the Sixth Amendment without the aid of a hired investigator. And while it is conceivable that certain cases might be so complex that counsel's failure to hire an investigator would be per se ineffective, Petitioner has not explained why this case fits that mold, and nothing in the record suggests that Engan could not have investigated the physical evidence at the crime scene on his own. Iinstead, the real issue appears to be that Engan chose not to undertake such an investigation at all. His failure to hire an investigator, therefore, was merely a symptom of his failure to investigate, not its cause. Petitioner has not, as a result, overcome the presumption of effectiveness to which Engan's decision not to hire an investigator is entitled. Accordingly, the state court's decision, which likewise recognized that "foregoing the use of an investigator and doing one's own investigation, even in a first degree murder case, is [not] in an of itself a deficient performance failing to meet prevailing professional standards," was not an unreasonable application of law. 2. Failure to investigate the crime scene

The Court turns next to Petitioner's claims that Engan's performed deficiently by failing to conduct a sufficient investigation of the crime scene. Specifically, Petitioner faults Engan for failing to investigate, or for failing to hire an investigator to investigate, forensic evidence a Buzz Lightyear doll and green box found in the vicinity of McLaughlin's body, and a pair of scissors left sitting on a counter in McLaughlin's kitchen. At the PCR evidentiary hearing, Steven W. Bernard, an investigator hired by Petitioner, testified that Engan should have investigated these particular objects because that investigation may have uncovered evidence that supported a suicide theory. (Answer, Exh. - 15 -

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Y at 75­77). Bernard stated that because the police initially suspected suicide, he would have tested the green box found next to McLaughlin's head for footprints and fingerprints. (Id. at 76). He explained that the presence of McLaughlin's footprints on the box would have suggested that McLaughlin stood on top of the box and put the rope on the hook herself. (Id.). Bernard also stated that he would have tested the Buzz Lightyear doll for tissue and DNA. (Id.). He explained that the ovoid bruises found on McLaughlin's head could have been postmortem, as it appeared to him that the feet of the Buzz Lightyear doll were the same shape as the bruises and may have, therefore, caused them. (Id.). Similarly, Bernard also testified that the Buzz Lightyear doll may have been the cause of the wound found just below McLaughlin's knee. (Id. at 77). Finally, Bernard mentioned the scissors on the kitchen counter, but did not explain why he would have tested them. (Id.). Although the Court finds disconcerting Engan's failure to investigate the crime scene evidence highlighted by Bernard, it need not consider whether Engan's failure to do so constitutes deficient performance, as assuming, without deciding, that Engan performed unreasonably, Petitioner cannot prove prejudice. The prejudice caused by a failure to investigate is not based on the lack of an investigation itself, but instead results from trial counsel's inability to introduce the helpful evidence that the investigation would have uncovered. See Avila v. Galaza, 297 F.3d 911, 919 (9th Cir. 2002) ("We have repeatedly found that a lawyer who fails adequately to investigate, and to introduce into evidence, [evidence] that demonstrates his client's factual innocence, or that raises sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance." (emphasis added, and internal quotation omitted); Lord v. Wood, 184 F.3d 1083, 1093 (9th Cir. 1999) (same). That a court's analysis of the prejudice prong of an investigation-based ineffectiveness claim must focus on the evidence that an investigation would have uncovered, as opposed to the investigation itself, makes perfect sense; if a particular investigation would not have turned up beneficial evidence, a petitioner, or for that matter a jury, can not be said to have been deprived of the benefit of that investigation. In line with this principle, the Ninth Circuit has held that courts may not find prejudice - 16 -

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based on speculation about what evidence an investigation might have turned up. Grisby v. Blodgett, 130 F.3d. 365, 371 (9th Cir. 1997); see Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995) ("Absent an account of what beneficial evidence investigation into any of these issues would have turned up, Hendricks cannot meet the prejudice prong of the Strickland test." (emphasis added)); McBride v. Sharpe, 25 F.3d 962, 973 (11th Cir. 1994) ("McBride's unsupported assertions about what further investigation of the medical report and automobile could have revealed do not establish a reasonable probability that the result of his trial would have been different."(emphasis added)). In Grisby, the petitioner argued that his counsel performed ineffectively for failing to pursue testing of a carpet, "the results of [which] might have exculpated him by showing that his blood was not present in the hallway, a fact that would make it unlikely that he was [the] assailant." Id. at 372. In finding that the petitioner could not demonstrate prejudice, the Ninth Circuit relied on the fact that "[petitioner] cannot now show that the results of the test would have been in his favor, the carpet having long since been destroyed," labeling his argument a "speculative claim of prejudice." Id. at 373. Like in Grisby, Petitioner's prejudice argument is predicated on speculation. Although due to no fault of his own, Bernard testified only as to what a proper investigation might have uncovered.2 For example, Bernard noted only the "possibility" that

McLaughlin's footprints would be found on top of the green box. (Answer, Exh. Y at 76). Similarly, he stated that "it appears to me that the Buzz Light year may have been the cause of the ovoid bruises on her head which, in my opinion, could have been postmortem." (Id.) (emphasis added). Bernard offered no explanation at all as to what evidence the scissors might have produced. While it is certainly possible testing of these objects would have turned up evidence that benefitted Petitioner, it is far from certain. As in Grisby, this lack of certainty prevents the Court from being able to find prejudice, even assuming Engan

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performed ineffectively by not conducting the investigation. Accordingly, the state court's determination that Petitioner was not prejudiced by Engan's alleged failure to conduct a proper investigation of the crime scene evidence is not an unreasonable application of law. 3. Failure to Request 911 Tape

Petitioner also argues that Engan performed ineffectively by failing to request the tapes of the two 9-1-1 calls made by Tim Koonce, from the scene of the crime, after he discovered McLaughlin's body. Petitioner argues this claim under the umbrella of his

investigation theory of IAC. In other words, he cites the fact that Engan did not request the 911 tapes as evidence of Engan's failure to conduct an adequate investigation. Once again, even if Petitioner could demonstrate deficient performance, his claim would not succeed, as he cannot meet his burden concerning prejudice. Petitioner argues that Engan's failure to request the 9-1-1 tapes "depriv[ed] the jury of hearing the initial call and `possible suicide' comments or any other information that could have been gleaned from it." This argument is not persuasive. Because the 9-1-1 tapes have been destroyed, no one will ever know what "other information" could have been gleaned from them, and speculation as to what the tape may have contained is insufficient to demonstrate prejudice. Grisby, 130 F.3d. at 371. It is not speculation, however, that Koonce reported a possible suicide in his first 9-1-1 call, but changed his opinion to possible homicide in a second. (Answer, Exh. Y at 62­63.) Even if the jury had heard this evidence, the Court does not find it reasonably probable that the outcome of Petitioner's trial would have been different. At the evidentiary hearing, Koonce explained that he changed his mind about the cause of McLaughlin's death between the first and second 9-1-1 calls--from possible suicide, to possible homicide--because of the position of McLaughlin's body and the size of the rope. (Id. at 63). Koonce could not reconcile the length of the rope around McLaughlin's neck with McLaughlin having hung herself--i.e. the rope appears too long to have permitted McLaughlin's feet to leave the ground. (Id.). In his habeas petition, relying on the evidentiary hearing testimony of Dr. Peters, Petitioner argues that the length of the rope does not, in fact, preclude a suicide theory, as people sometimes commit suicide by - 18 -

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hanging themselves even while their feet can touch the ground. That fact, however, does not render Koonce's explanation for his change of opinion unreasonable. To the contrary, upon encountering a dead woman lying on the ground, under a hook, with a rope around her neck, one would expect the 9-1-1 call of a first responder to make reference to possible suicide. That Koonce, a policeman, changed his mind about the possible cause of death after further examining the scene and discovering that the rope around McLaughlin's neck appeared too long to permit hanging seems perfectly plausible. Additionally, such an explanation would have appeared all the more reasonable to the jury given Engan's two-hook suicide theory, which appears to have been an attempt to explain how McLaughlin could have hung herself despite the length of the rope. The Court doubts, therefore, that the jury would have ascribed any special significance to Koonce's initial determination of a possible suicide. Instead, the Court agrees with the state court that the 9-1-1 tape, had it been procured, would have been of "marginal value." (Answer, Exh. Z at 38). This evidence, therefore, does not undermine the Court's confidence in the outcome of Petitioner's trial and, as a result, it cannot find that Engan's failure to procure and introduce the 9-1-1 tapes caused Petitioner prejudice. Petitioner IAC claim based on Engan's failure to request the 9-1-1 tape is denied; the state court's decision that Engan was not ineffective for failing to get the 911 tapes was not an unreasonable application of law. C. IAC: Failure to Adequately Elicit Testimony That Supported a Suicide Defense. Petitioner argues that Engan performed ineffectively by failing to elicit testimony from both his medical expert, Dr. Nelson, and the prosecution's medical expert, Dr. Keen, that supported a suicide theory. Specifically, Petitioner asserts that Engan's examination of these witnesses did not sufficiently emphasize the condition of McLaughlin's neck, which did not exhibit any signs of violent strangulation. Given the fact that Drs. Keen and Nelson disagreed on the manner of death, Petitioner argues that Engan's failure to bring forth testimony concerning the condition of McLaughlin's neck constitutes ineffective assistance - 19 -

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of counsel, as such testimony would have bolstered a suicide theory and discredited Keen's finding of homicide. Dr. Nelson conducted the first autopsy on McLaughlin's body. He performed a complete neck dissection and found no cracks or fractures in any of the bones or vertebrae. Additionally, his examination uncovered found no soft tissue damage that would have been indicative of a violent or forced death. Dr. Keen examined the body after Dr. Nelson, but did not have access to the neck organs that had been removed by Dr. Nelson during his examination--the thyroid, cartilage, the hyoid bone, and the upper trachea. Petitioner argues that Dr. Keen's failure to examine these neck organs severely undermined his conclusion that McLaughlin's death was a homicide. In support of this position, he points to the PCR evidentiary-hearing testimony of Pima County medical examiner, Dr. Peters. (Answer,

Exh. Y at 9­55). At that hearing, Dr. Peters, based on his examination of the autopsy reports, photographs of McLaughlin's neck, and other data, testified that he too could not determine the manner of death. He also stated, however, that nothing in the photographs suggested a forced strangulation and that the relatively pristine condition of McLaughlin's neck was more consistent with a suicide than not. Petitioner criticizes Engan's failure to sufficiently explore the topic of McLaughlin's neck with Dr. Keen, noting that Engan asked Dr. Keen only a single question about the condition of McLaughlin's neck and failed to ask any follow-up questions concerning how Dr. Keen's lack of access to the removed neck organs impacted his conclusion of homicide. Similarly, Petitioner faults Engan for asking no questions of his own expert, Dr. Nelson, about the absence of signs of violent strangulation and for not asking Dr. Nelson questions which would allow him to elaborate on Dr. Keen's inability to examine the neck anatomy.3 The Court notes that Engan did, in fact, elicit testimony, albeit indirectly, from Dr. Nelson, concerning the condition of McLaughlin's neck. In response to Engan's question, "did you perform any tests to attempt to determine a window when the victim might have died?" Dr. Nelson answered: "We did an anterior neck incision and found very little trauma to the soft tissue of the neck. I took some skin incision over the area of the ligature and again they showed minimal what are called cellular abrasion to the red cells within the soft tissue - 20 3

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"Under Strickland, counsel's representation must be only objectively reasonable, not flawless or to the highest degree of skill." Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000). This includes counsel's decisions during examination of witnesses. As the Ninth Circuit has explained, "counsel's tactical decisions at trial, such as refraining from cross-examining a particular witness or from asking a particular line of questions, are given great deference and must similarly meet only objectively reasonable standards." Id. At first glance, Engan's decision not place more emphasis on the condition of McLaughlin's neck appears questionable, as one might expect the victim of a homicide by strangulation to exhibit signs of neck trauma. However, placed in its proper context and given the substantial deference which it is due, the Court cannot conclude that Engan's performance was constitutionally deficient. Yarborough, 540 U.S. at 8 (noting the "particular force" the presumption of

effective assistance has in the face of a silent record). The underlying assumption of Petitioner's argument is that the condition of McLaughlin's neck supported a strong suicide theory. The Court, however, is hesitate to accept this proposition The record shows that both medical examiners agreed that the cause of McLaughlin's death was asphyxiation. Their disagreement concerned the manner of her death. Dr. Nelson was unable to make a definitive determination on this subject, finding that McLaughlin's death could have been homicide, suicide, or accident. (Answer, Exh. L2 at 125). Dr. Keen, on the other hand, did conclude that McLaughlin's death was a homicide. The discrepancy between the two expert's conclusions, however, was not predicated on the condition of McLaughlin's neck. Dr. Keen concluded McLaughlin's death was a homicide based on the presence of various bruises on her body, and at testified at trial that because he had been unable to view the neck organs removed by Dr. Nelson, he relied on Dr. Nelson's conclusions concerning McLaughlin's neck when making his determinations. (Id., Exh I at 89). Additionally, the condition of McLaughlin's neck was not sufficient for Dr. Nelson,

of the neck." (Answer, Exh. L2 at 116­17). Engan did not, however, follow up on Dr. Nelson's answer. - 21 -

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Petitioner's own expert, to conclude that McLaughlin had committed suicide or to rule our homicide as a possible manner of death. Thus, while Petitioner now characterizes the condition of McLaughlin's neck as a "critical issue,"it does not appear to have been a determinative factor for either medical examiner that testified at trial. The Court, therefore, is dubious of Petitioner's claim that Engan overlooked a strong suicide defense. Instead, it appears that Petitioner, based on Dr. Peter's testimony, has ascribed a special significance to the condition of the neck that was not apparent to either expert trial witness. Requiring Engan to have effectuated a strategy based on such hindsight analysis runs counter to the cannons of ineffectiveness law. See Strickland, 466 U.S. at 689 (stating that courts must avoid engaging in hindsight analysis). Relatedly, while the Court agrees with Petitioner that it was necessary for Engan to undermine Dr. Keen's conclusion of homicide, it cannot find, as Petitioner suggests, that emphasizing the condition of McLaughlin's neck was a necessary component of any objectively reasonable strategy to do so. To wit, by focusing his examinations of the medical experts on the source of their disagreement concerning the manner of McLaughlin's death--i.e. whether McLaughlin's body exhibited pre-death bruises or post-death livor--Engan sought to undermine Dr. Keen's finding of homicide. He appears, then, to have pursued a strategy focused on highlighting the undeterminable nature of the manner of McLaughlin's death, as opposed to pushing a suicide theory based on the condition of the neck. This comports with the evidentiary hearing testimony of Petitioner's ex-wife, Janet Ward, who explained that Engan decided early that he needed to "take the focus of any suicide scenario." (Id., Exh. Y at 99). While this is clearly not the strategy that Petitioner's current counsel would have pursued, the Court is unprepared to find that it was completely unreasonable. Engan did seek to undermine Dr. Keen's conclusion of homicide, and contrary to Petitioner's current position, the importance of the condition of McLaughlin's neck was not so apparent or obvious as to make Plaintiff's decision not to emphasize it objectively unreasonable. Ultimately, while it might have been prudent to highlight the pristine condition of McLaughlin's neck and attempt to discredit Dr. Keen's conclusions concerning - 22 -

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the bruising, Engan's performance "cannot be deemed ineffective because, with the benefit of hindsight, we now determine that other trial strategies . . . may have been a better choice." Turner v. Calderon, 281 F.3d 851, 876 (9th Cir. 2002). Having determined that Engan did not perform unreasonably, the court does not need to consider prejudice. D. IAC: Failure to Call a Second Defense Medical Expert to Testify

Petitioner argues that Engan performed ineffectively by failing to call a second defense medical expert to support the "indeterminate" manner of death conclusion reached by Dr. Nelson. Engan's decision not to do so, Petitioner alleges, was unreasonable because a second expert would have added weight to the conclusions of Dr. Nelson, who was a less experienced medical examiner than was the prosecutions expert, Dr. Keen. The Court must reject this claim. It is not uncommon for the respective experts of the prosecution and a defendant to reach different conclusions and offer conflicting testimony, as was the case here. In all such situations, it might potentially be helpful for the defendant to call a second expert witness to testify as to the same facts as his first expert witness, thereby bolstering or lending credence to the first expert's testimony. What would be helpful and what is constitutionally required, however, are two very different things. To the extent that Petitioner advances such an argument, the Court must reject his theory that effective assistance of counsel requires that trial counsel hire a second expert when the testimony of his first expert conflicts with the prosecution's expert. Such a rule would be logistically impractical and improperly suggests that veracity is necessarily related to the number of people that make a claim. Assuming, however, that in some circumstances effective assistance of counsel might require the hiring of a second expert, Petitioner has not met his burden of demonstrating that Engan's failure to do so was unreasonable. "The choice of what type of expert to use is one of trial strategy and deserves a heavy measure of deference." Turner, 281 F.3d at 876. The record shows that Egan consulted with a second medical expert before trial, Dr. Peters, but elected not call to him. (Answer, Exh. Y at 14). Engan's decision not to call Dr. Peters at - 23 -

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trial is entitled to significant deference, and Petitioner has not adduced reasons that persuade this court it was an unreasonable one. To the contrary, the crux of Petitioner's claim is that Dr. Peters would have testified more or less identically to Dr. Nelson. While it is easy for Petitioner to speculate about the possible benefits of such testimony--such as adding weight to Dr. Nelson's findings-- it is possible Engan concluded that any such benefit was outweighed by the potential negatives. Engan may have decided, for example, that calling a second expert would have suggested to the jury that he did not have faith in his expert or that duplicative testimony would be confusing. In light of the significant deference owed to Engan's decision, the Court cannot find he performed unreasonably merely by deciding against presenting duplicative or overlapping expert testimony, and the state court did not err by rejecting this claim. E. IAC: Failure to Show a Second Expert the Crime Scene Photos

Relatedly, Petitioner argues that Engan performed unreasonably by failing merely to show photographs of the crime scene to a second medical examiner or crime scene expert. Specifically, he states that "if Engan had simply shown the crime scene photos to a medical examiner or crime scene expert from the outset, he would have learned that suicide or in the alternative, accident after an auto-erotic asphyxiation, based on a victim's body position, is very common," and which would have supported a suicide claim. In support of his position, Petitioner notes the PCR evidentiary hearing testimony of Dr. Peters, who described how someone could hang himself without their feet ever leaving the ground, and testified that the physical evidence supported such a scenario better than it did the homicide theory posited by the prosecution. (See Answer, Exh. Y at 11­50 ). As the Court has mentioned, the record shows that Engan did, in fact, consult with Dr. Peters about the possibility of conducting a third autopsy of McLaughlin's body, but elected not do so after Dr. Peters told him that a third autopsy would not have been likely to provide any new information. (Answer, Exh. Y at 14). As the state court that considered this claim explained, "[w]ith the benefit of hindsight one can argue that Mr. Engan should have gone one step further an asked Dr. Peters [or another expert] whether reviewing the record and - 24 -

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asking him to render an opinion based thereon, as to doing another autopsy, might yield something productive." (Petition, Exh. B at 8). Like the state court, however, this Court is unable to find that Engan's failure to take this additional step constituted ineffective assistance of counsel. Engan already had the benefit of one medical expert, Dr. Nelson, who testified on direct and cross-examination that he viewed the crime scene photographs before conducting his autopsy. (Answer, Exh. L2 at 121, 141). Petitioner's argument, then, implies that it was objectively unreasonable for Engan to have trusted Dr. Nelson's conclusions, despite the fact those conclusions were based on the same evidence, including the crime scene photos, to which a second expert would likely have had access. Petitioner, however, has not explained why Engan should have had such mistrust, and instead improperly relies on the benefit of hindsight in the form of Dr. Peter's testimony. In other words, because Dr. Peter's review of the same crime scene photographs and autopsy information caused him to conclude that the position of McLaughlin's body was consistent with a hanging during which the victim's feet do not leave the ground, Petitioner argues that Engan should have known not to trust Dr. Nelson's analysis, which apparently did not include such a finding, and sought out a second opinion. The Supreme Court has been very clear with respect to hindsight analysis. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. Petitioner has not explained why from Engan's perspective at the time it would have been unreasonable not to have a second expert double check his own expert's conclusions. To the contrary, in other arguments presented to this Court, Petitioner has suggested Engan performed unreasonably for not hiring a second expert to corroborate Dr. Nelson's conclusions regarding the indeterminate nature of McLaughlin's death, which works against their instant position regarding the quality of Dr. Nelson's work. Accordingly, this Court, like the state court before it, can hardly find that Engan performed - 25 -

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unreasonably by not showing photographs of the crime scene to a second medical examiner or crime scene expert. V. PETITIONER'S DUE PROCESS CLAIMS Petitioner also argues that violations of his constitutional right to due process of law warrant a new trial. Specifically, Plaintiff alleges that the state violated his due process rights when: (1) Detective Spoerry failed to record an interview he conducted with Bryce McLaughlin, depriving Petitioner of potentially relevant evidence; and (2) the prosecutor, Matthew J. Smith, made improper remarks during his closing argument, rendering

Petitioner's trial fundamentally unfair. In his R&R, Magistrate Judge Aspey concluded that neither of Petitioner's due-process allegations warrants relief, as the Arizona Court of Appeals findings with respect to these claims were not unreasonable applications of controlling federal law. Petitioner has only objected to Magistrate Aspey's findings with respect to his prosecutorial misconduct claim. A. Failure to Preserve Relevant Evidence

In his habeas petition, Petitioner argued that the state violated his due process rights when Detective Spoerry failed to record an interview he conducted with Bryce McLaughlin. In his R&R, Magistrate Judge Aspey recommended that this claim be denied, explaining that while "bad faith failure to preserve or to collect potentially exculpatory evidence is a violation of the defendant's right to due process of law, there is no United States Supreme Court opinion holding that the prosecution's bad faith failure to create potential impeachment evidence." (Doc. 24, p.66). Petitioner has not objected to the R&R's conclusions of law or fact (on this claim), and his decision not to do so was prudent, as this Court agrees with Magistrate Judge Aspey's analysis. In Arizona v. Youngblood, the Supreme Court held that failure to preserve

"potentially useful evidence," along with a showing of bad faith, could constitute a due process violation. 488 U.S. 51, 57­58 (1988). Subsequently, the Ninth Circuit has extended Youngblood, holding that due process also requires a state to collect potentially useful evidence, not merely preserve evidence that is already in its possession. Miller v. Vasquez, - 26 -

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868 F.2d 1116, 1121 (9th Cir. 1989). Petitioner's claim, however, does not allege that Detective Spoerry failed to preserve or collect evidence about which he already knew. Instead, as Magistrate Judge Aspey so artfully explained, Petitioner has accused Detective Spoerry of failing to create evidence, something neither Miller nor Youngblood appear to dictate. In Miller, for example, the investigating officer learned that the victim possessed a jacket with the perpetrator's blood on it. Id. After interviewing the victim, the officer failed to take the jacket from her. Id. Shortly after this interview, the victim washed the jacket, destroying its evidentiary value. Id. Accordingly, the officer in Miller was aware of specific, pre-existing evidence that might be useful, but failed to collect it. This case is not analogous to Miller, as Petitioner has not alleged that Detective Spoerry failed to collect evidence that predated the interview with Bryce McLaughlin and which he knew might be potentially exculpatory. Instead, he has alleged that Detective Spoerry failed to record an interview at which such evidence might have been produced. The Court, therefore, agrees with

Magistrate Judge Aspey that petitioner is not entitled to relief based on this due process claim.4 B. The Prosecutor's Comments During Closing Arguments

Finally, Petitioner alleges that three remarks made by Smith during his rebuttalclosing argument violated his due process rights. In support of this claim, Petitioner points to three comments in particular: (1) "I believe Mr. Engan does not have any interest in looking at the truth"; (2) "What Mr. Engan wants you to do in this case is to go back into that

Additionally, even if Detective Spoerry's conduct could be described as a failure to collect exculpatory evidence, Miller is Ninth Circuit precedent and is not, therefore, clearly established federal law. As a result, this Court could not conclude that the State Court of Appeals, which rejected Petitioner's on the grounds that the state did not fail to preserve an material evidence, was contrary to or unreasonable application of federal law, as the relevant Supreme Court precedent--Youngblood--only requires the preservation of potentially relevant evidence. Additionally there are no allegations that Spoerry or anybody else destroyed any evidence. - 27 -

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