Ellison v. Ryan et al

Filing 71

ORDER - IT IS ORDERED that: 1. Ellison's amended habeas (Doc. 21 ) is denied. The Clerk of Court shall enter judgment accordingly and terminate this action. 2. Ellison's request for evidentiary development (Doc. 41 ) is denied. 3. A certi ficate of appealability is granted with respect to Claims 45(C)(1) and 45(C)(2). 4. The Clerk of Court shall forward a courtesy copy of this order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329. (See document for complete details). Signed by Judge Dominic W Lanza on 3/5/24. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Charles David Ellison,
Petitioner,

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v.

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Ryan Thornell, et al.,

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No. CV-16-8303-PHX-DWL
ORDER
DEATH PENALTY CASE

Respondents.

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Petitioner Charles David Ellison is an Arizona death row inmate seeking habeas

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relief pursuant to 28 U.S.C. § 2254. Before the Court are his habeas petition and his request

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for evidentiary development. (Docs. 21, 41.) Respondents filed an answer to the petition

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and an opposition to the request for evidentiary development. (Docs. 30, 50.) The petition

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and the request for evidentiary development are denied for the reasons set forth below.

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BACKGROUND

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On January 18, 2002, a jury in Mohave County convicted Ellison of two counts of

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first-degree murder and one count of first-degree burglary. In February 2004, following

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sentencing proceedings before a separate jury, the superior court sentenced him to death

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for each murder and to a concurrent sentence of 12.5 years for the burglary conviction.

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The Arizona Supreme Court described the facts surrounding the crimes in its opinion

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affirming the convictions and sentences. State v. Ellison, 140 P.3d 899, 906-08 (Ariz.

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2006). These facts, summarized below, are “presumed correct.” Atwood v. Ryan, 870 F.3d

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1033, 1039 (9th Cir. 2017) (citing 28 U.S.C. § 2254(e)(1)).

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On the morning of February 26, 1999, police went to the home of Joseph and Lillian

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Boucher after their daughter, Vivian Brown, was unable to contact them. When no one

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answered the door, police entered the home through the kitchen, where they noticed a

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telephone with its line cut and cord missing and a knife block with a missing knife.

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Police discovered the body of Joseph Boucher, age 79, on a bed in one bedroom.

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He had defensive wounds and cuts and scrapes on his wrists and arms indicating he had

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been bound. Police found Lillian Boucher’s body on the floor in another bedroom. Mrs.

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Boucher, 73, had bruises on her face and body consistent with an altercation and a small

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amount of blood around her nose. According to the medical examiner, Mr. Boucher had

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been asphyxiated by smothering. Mrs. Boucher had been asphyxiated by smothering or a

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combination of smothering and strangulation. A number of items were missing from the

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house, including a .22 caliber handgun, a pellet gun, and items of jewelry belonging to each

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victim.

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On February 26, 1999, Brad Howe contacted police with information that he had

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obtained from Richard Finch. Finch worked for Howe and his father as a “lot boy” at their

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auto dealership in Lake Havasu City and lived at Howe’s house. According to Howe, Finch

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was “simple” and, because Finch could not manage his own finances, Howe and his father

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gave Finch money only as he needed it.

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Howe told the police he did not see Finch on the night of February 24, 1999. The

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next night, however, they went drinking at several bars. Howe offered to pay as usual, but

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Finch surprised him by offering to buy drinks and displaying $250 to $300. Howe told

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police that Finch was drinking heavily and acting as if something was on his mind. Howe

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repeatedly asked Finch what was distracting him. Finch became “very upset” and admitted

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he had been involved in “some bad things.” The two then left the bar. On the drive home,

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Finch told Howe more details about what had happened.

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Once home, Finch, upset and crying, retrieved a bag and showed Howe the contents.

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Howe did not want the items in his house, so he took the bag and hid it in the desert in the

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early morning hours of February 26, 1999. He later led police to the bag, which contained

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several items stolen from the Bouchers’ home.

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The same day, police officers went to Howe’s house and arrested Finch, who had

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packed his belongings as if planning to leave. After being advised of his rights under

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Miranda v. Arizona, 384 U.S. 436 (1966), Finch agreed to speak with police. In a taped

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interview, Finch confessed his involvement in the murders. He identified a man called

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“Slinger” as his companion in the crimes. Slinger was a nickname used by Ellison. Two

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days later, Finch helped police find the missing kitchen knife in a field behind the

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Bouchers’ house.

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On March 1, 1999, after unsuccessfully searching for Ellison at the house of his

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girlfriend, Cathie Webster-Hauver, Kingman Police Department detectives Steven Auld

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and Lyman Watson learned that Ellison had been arrested in Lake Havasu. After informing

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Ellison of his Miranda rights, the detectives interviewed him at the Lake Havasu police

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station just before 9:00 a.m.

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Ellison told the detectives he had met Finch two or three weeks earlier at Darby’s,

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a Lake Havasu bar. The two men met again at Darby’s on February 24, 1999, where Ellison

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agreed to do “a job” with Finch in Kingman. Ellison said that he intended only to commit

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a burglary, not to kill anyone.

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After leaving Darby’s that night, Ellison and Finch drove Ellison’s van to Kingman,

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where they stopped at the Sundowner’s Bar. According to the bartender, Jeannette Avila,

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Ellison entered the bar first, ordered and paid for beers, talked to her at length, and led the

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way when the two men left. Finch never spoke to Avila but sat at the bar without removing

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his sunglasses. Avila later identified Ellison in a photographic line-up but was unable to

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identify Finch.

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Ellison said he and Finch next drove to a nearby movie theater and parked the van.

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According to Ellison, Finch led the way to the Bouchers’ house and entered first. Once

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inside, Ellison and Finch ordered Mrs. Boucher from the living room and into Mr.

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Boucher’s bedroom. Ellison admitted binding the victims with the phone cords and

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masking tape but claimed to have done so only at Finch’s direction.

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Ellison said Finch then pointed a gun at him and ordered him to kill Mr. Boucher.

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By his account, Ellison held a pillow over Mr. Boucher’s face for a period of time, possibly

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only a few seconds, while Finch strangled Mrs. Boucher. Ellison said he removed the

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pillow when Mr. Boucher stopped struggling but claimed he thought Mr. Boucher was still

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alive because his chest was moving up and down. Ellison said he told Finch that Finch

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would have to finish off Mr. Boucher. Ellison also said that Finch moved Mrs. Boucher’s

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body to another bedroom after strangling her.

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Ellison claimed that it was Finch’s idea to “hit” the house and that he did not know

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how Finch had picked the Bouchers’ home. Ellison admitted he was somewhat familiar

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with the area because his parents lived nearby. Additionally, at trial, Vivian Brown (the

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Bouchers’ daughter) identified Ellison as having worked on her parents’ home in October

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1997 and at a nearby house the next year. According to Howe, Finch did not possess a gun

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or a vehicle and had never been to Kingman before February 24, 1999.

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No physical evidence proved who killed either victim. None of the fingerprints

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found in the house matched Ellison or Finch. However, police found a latex glove in the

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Bouchers’ yard, and Ellison later admitted he had supplied the latex gloves that he and

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Finch wore during the burglary. None of the Bouchers’ property was found on Ellison, in

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his van, or at his girlfriend’s home. Ellison, however, was not arrested until five days after

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the murders. Ellison admitted removing jewelry from Mrs. Boucher’s body but said he did

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so only at Finch’s direction. He also admitted using $20 stolen from the Bouchers to buy

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gas for his van.

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The detectives attempted to record their initial interview with Ellison but failed to

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do so. Detective Watson re-interviewed Ellison at 10:06 a.m. In this nine-minute recorded

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interview, Detective Watson tried to summarize the main points of the first interview. This

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tape was played for the jury during the guilt phase of trial.

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On March 4, 1999, Ellison and Finch were indicted for the murders and first-degree

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burglary. The State sought the death penalty for each defendant. Judge Robert R. Moon

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severed their trials. In September 2000, a jury convicted Finch on the murder and burglary

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charges. In March 2001, Judge Moon sentenced Finch to natural life imprisonment,
finding, among other things, mitigating factors due to Finch’s having acted under duress
from Ellison and later cooperating with police in the investigation.

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Ellison was represented at trial by Vincent Iannone as lead counsel and Eric Engan
as co-counsel.1 Iannone, a private attorney, was appointed in October 2000.

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Ellison was tried in January 2002 before Judge Moon. The jury convicted Ellison
on the murder and burglary charges, finding him guilty of both premeditated and felony
murder of the Bouchers. The jury also found that he had either killed, intended to kill, or
acted with reckless indifference.

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Before Ellison was sentenced, the Supreme Court decided Ring v. Arizona (“Ring
II”), 536 U.S. 584 (2002), which held that Arizona’s capital sentencing scheme, in which
judges rather than juries made the findings rendering a defendant death-eligible, was
unconstitutional. The Arizona legislature then amended Arizona’s statutes to provide for
jury findings of aggravating and mitigating circumstances and jury sentencing. A.R.S.
§ 13-703.01. A newly-impaneled jury heard Ellison’s sentencing proceeding in January
and February 2004. The jury found six aggravating factors: (1) Ellison had a previous
serious felony conviction; (2) the murders were committed for pecuniary gain; (3) the
murders were especially cruel; (4) the murders were committed while Ellison was on
parole; (5) there were multiple murders; and (6) the victims were more than 70 years old.
The jury determined that death was the appropriate sentence for each murder.

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The Arizona Supreme Court affirmed the convictions and sentences. Ellison, 140
P.3d 899. Ellison then pursued post-conviction relief (“PCR”). The state court2 ultimately
denied his claims and the Arizona Supreme Court summarily denied Ellison’s petition for

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Kenneth Everett and Stephen Wallin from the Mohave County Public Defender’s
Office represented Ellison until the Office withdrew in October 2000.
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Visiting Judge Michael Jones, of the Maricopa County Superior Court, presided
over Ellison’s PCR proceedings.
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review.3

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In 2016, Ellison filed a notice of intent to pursue habeas relief in this Court. (Doc.

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1.) The Court appointed the Federal Public Defender for the District of Arizona to

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represent him. (Doc. 5.) Ellison filed a petition for writ of habeas corpus in August 2017

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and an amended petition on March 23, 2018. (Docs. 18, 21.)

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APPLICABLE LAW

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Ellison’s request for habeas relief is governed by the Antiterrorism and Effective

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Death Penalty Act of 1996 (“AEDPA”).4 The following legal framework guides the

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analysis of Ellison’s claims.

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I.

Exhaustion And 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,

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501 U.S. 722, 731 (1991) (“This Court has long held that a state prisoner’s federal habeas

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petition should be dismissed if the prisoner has not exhausted available state remedies as

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to any of his federal claims.”). To exhaust state remedies, the petitioner must “fairly

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present[]” his claims to the state’s highest court in a procedurally appropriate manner.

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O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). A claim is “fairly presented” if the

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petitioner has described the operative facts and the federal legal theory on which the claim

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is based. Anderson v. Harless, 459 U.S. 4, 6 (1982). A petitioner must “clearly alert[] the

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[state] court that he is alleging a specific federal constitutional violation.” Casey v. Moore,

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386 F.3d 896, 913 (9th Cir. 2004). He must make the federal basis of the claim explicit,

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either by citing specific provisions of federal law, even if the federal basis of a claim is

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“self-evident,” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), or by citing state

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cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert,

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When the state’s highest court denies a claim summarily, a federal court looks
through to the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
Ellison’s challenge to the constitutionality of AEDPA (Doc. 21 at 43-46) is
foreclosed by Ninth Circuit law. Crater v. Galaza, 491 F.3d 1119, 1125-26 (9th Cir. 2007).
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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 PCR proceedings. Rule 32 of the Arizona Rules of Criminal

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Procedure governs PCR proceedings. It provides that a petitioner is precluded from relief

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on any claim that could have been raised on direct appeal or in a prior PCR petition.

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See Ariz. R. Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a)(3) may be avoided

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only if a claim falls within certain exceptions and the petitioner can justify the claim’s

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omission from a prior petition.5 See Ariz. R. Crim. P. 32.1(b)-(h), 32.2(b), 32.4(b).

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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 if it was actually raised in state court but found

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by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30.

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Second, a claim may be procedurally defaulted if the petitioner failed to present it in state

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court and “the court to which the petitioner would be required to present his claims in order

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to meet the exhaustion requirement would now find the claims procedurally barred.” Id.

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at 735 n.1. If no remedies are currently available, the claim is “technically” exhausted but

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procedurally defaulted. Id. See also Gray v. Netherland, 518 U.S. 152, 161-62 (1996);

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Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011).

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II.

AEDPA

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

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on the merits in state court unless the state court’s ruling (1) resulted in a decision that was

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contrary to, or involved an unreasonable application of, clearly established federal law; or

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(2) resulted in a decision that was based on an unreasonable determination of the facts in

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light of the evidence presented in state court. 28 U.S.C. § 2254(d).
“A state-court decision is contrary to Supreme Court precedent if the state court

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To the extent this order concludes that Ellison does not have an available remedy in
state court, because claims or portions of claims would be precluded pursuant to Rule
32.2(a)(3), Ellison does not assert that any exceptions to preclusion are applicable. Beaty
v. Stewart, 303 F.3d 975, 987 & n.5 (9th Cir. 2002) (finding no available state court
remedies and noting that petitioner did not attempt to raise any exceptions to Rule 32.2(a)).
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arrives at a conclusion opposite to that reached by the Supreme Court on a question of law

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or the state court confronts facts that are materially indistinguishable from a relevant

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Supreme Court precedent and arrives at a result opposite to the Supreme Court’s. A

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decision involves an ‘unreasonable application’ of clearly established federal law under

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§ 2254(d)(1) if it identifies the correct governing legal principle but unreasonably applies

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that principle to the facts of the prisoner’s case. The ‘unreasonable application’ clause

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requires the state court decision to be more than incorrect or erroneous. The state court’s

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application of clearly established law must be objectively unreasonable.” Hooper v. Shinn,

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985 F.3d 594, 614 (9th Cir. 2021) (cleaned up).

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

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

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362, 407 (2000). “[T]he ruling must be ‘objectively unreasonable, not merely wrong; even

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clear error will not suffice.’” Virginia v. LeBlanc, 582 U.S. 91, 94 (2017) (citation

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omitted). The burden is on the petitioner to demonstrate “there was no reasonable basis

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for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011). “The

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prisoner must show that the state court’s decision is so obviously wrong that its error lies

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beyond any possibility for fairminded disagreement.” Shinn v. Kayer, 529 U.S. 111, 118

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(2020) (citation omitted). This standard is meant to be “difficult to meet.” Id. (citation

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omitted).

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As noted, under § 2254(d)(2), habeas relief is also available if the state court

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decision was based on an unreasonable determination of the facts. Miller-El v. Dretke

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(“Miller-El II”), 545 U.S. 231, 240 (2005). “Factual determinations by state courts are

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presumed correct absent clear and convincing evidence to the contrary, and a decision

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adjudicated on the merits in a state court and based on a factual determination will not be

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overturned on factual grounds unless objectively unreasonable in light of the evidence

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presented in the state-court proceeding.” Miller-El v. Cockrell (“Miller-El I”), 537 U.S.

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322, 340 (2003) (citations omitted). A “factual determination is not unreasonable merely

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

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instance.” Wood v. Allen, 558 U.S. 290, 301 (2010); see also Brumfield v. Cain, 576 U.S.

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305, 314 (2015) (explaining that § 2254(d)(2) requires federal courts to “accord the state

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trial court substantial deference”); Walden v. Shinn, 990 F.3d 1183, 1196 (9th Cir. 2021)

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(same); Ayala v. Chappell, 829 F.3d 1081, 1094 (9th Cir. 2016) (“A state court’s factual

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findings are unreasonable if ‘reasonable minds reviewing the record’ could not agree with

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them.”) (citation omitted).

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The Supreme Court has clarified that “review under § 2254(d)(1) is limited to the

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record that was before the state court that adjudicated the claim on the merits.” Cullen v.

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Pinholster, 563 U.S. 170, 181 (2011). Additionally, 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 (9th Cir.

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2013). Therefore, “for claims that were adjudicated on the merits in state court, petitioners

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can rely only on the record before the state court in order to satisfy the requirements of

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§ 2254(d). This effectively precludes federal evidentiary hearings for such claims because

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the evidence adduced during habeas proceedings in federal court could not be considered

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in evaluating whether the claim meets the requirements of § 2254(d).” Id. at 993-94.

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III.

Martinez And Ramirez

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Procedural default is not an insurmountable bar to relief. A petitioner may raise a

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defaulted claim if he “can demonstrate cause for the default and actual prejudice as a result

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of the alleged violation of federal law, or demonstrate that failure to consider the claims

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will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. “Cause to

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excuse default exists if a petitioner can demonstrate that some objective factor external to

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the defense impeded counsel’s efforts to comply with the state’s procedural rule. Prejudice

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is actual harm resulting from the alleged error.” Vickers v. Stewart, 144 F.3d 613, 617 (9th

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Cir. 1998) (citations omitted).

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

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

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counsel’s part does not qualify as “cause.” Coleman, 501 U.S. at 752-54. However, where

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the ineffective assistance of counsel amounts to an independent constitutional violation, it
can establish cause. Id. at 753-54.
Although Coleman held that ineffective assistance of counsel in PCR proceedings
cannot establish cause for a claim’s procedural default, the Supreme Court created a
“narrow exception” to that rule in Martinez v. Ryan, 566 U.S. 1 (2012). There, the Court
explained:
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.

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“Thus, under Martinez, a petitioner may establish cause for procedural default of a

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trial IAC claim, where the state (like Arizona) required the petitioner to raise that claim in

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collateral proceedings, by demonstrating two things: (1) counsel in the [PCR] proceeding,

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where the claim should have been raised, was ineffective . . . , and (2) the underlying

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

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

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607 (9th Cir. 2012) (cleaned up).

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As for the former requirement, a petitioner must “establish that both (a) [PCR]

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counsel’s performance was deficient, and (b) there was a reasonable probability that, absent

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the deficient performance, the result of the [PCR] proceedings would have been different.”

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

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McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir. 2015). As for the latter requirement, the

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standard for finding the underlying IAC claim “substantial” is analogous to the standard

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for issuing a certificate of appealability. Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir.

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2013) (en banc). Under that standard, a claim is “substantial” if “reasonable jurists could

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debate whether the issue should have been resolved in a different manner or that the claim

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was adequate to deserve encouragement.” Id. (citing Miller-El I, 537 U.S. at 336).

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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 v.

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Ryan, 926 F.3d 1215, 1225 (9th Cir. 2019) (“[I]neffective assistance of PCR counsel can

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constitute cause only to overcome procedurally defaulted claims of ineffective assistance

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of trial counsel.”); Davila v. Davis, 582 U.S. 521, 525 (2017) (“The question in this case

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is whether we should extend that [Martinez] exception to allow federal courts to consider

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a different kind of defaulted claim—ineffective assistance of appellate counsel. We decline

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to do so.”).

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Finally, the Supreme Court has limited the evidence that may be presented in

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support of a Martinez argument (i.e., an argument that PCR counsel performed

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ineffectively for purposes of cause and prejudice). In Shinn v. Ramirez, 142 S. Ct. 1718

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(2022), the Court held that with respect to claims that were not adjudicated on the merits

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in state court, “a federal court may not hold an evidentiary hearing—or otherwise consider

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new evidence,” unless the “stringent requirements” of 28 U.S.C. § 2254(e)(2) are met. Id.

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at 1739.

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ANALYSIS
I.

Guilt-Phase Claims

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A.

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In Claim 1, Ellison alleges that his statements to the detectives were obtained and

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admitted at trial in violation of the Fifth, Sixth, and Fourteenth Amendments. (Doc. 21 at

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47-59.) More specifically, he argues that (1) the statements were taken in violation of his

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right to counsel and his right to remain silent; and (2) he involuntarily waived his rights

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based on promises of leniency. (Id.) The Arizona Supreme Court denied this claim on

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direct appeal. Ellison, 140 P.3d at 908-11.

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…

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…

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…

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…

Claim 1

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1.

Additional background

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Before trial, Ellison moved to suppress his statements to the police, arguing that

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they were involuntary and obtained in violation of Miranda. (ROA, Vol. I, Doc. 18.)6 As

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a result, the trial court held a voluntariness hearing at which Detective Watson, Detective

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Auld, and Ellison testified.

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Detective Watson testified that on March 1, 1999, he and Detective Auld

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interrogated Ellison twice, the second time because their attempt to record the first

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interview failed. (RT 7/20/99 at 8-10.) More specifically, Detective Watson testified that

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he borrowed a micro-cassette recorder from one of the Lake Havasu City officers and

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concealed it in a manilla envelope to record the interrogation without Ellison knowing he

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was being taped, but when the interrogation was over and Detective Watson played the

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tape, he discovered it was blank. (Id. at 8-9.)

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Detective Watson testified, with respect to the initial interview, that he advised

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Ellison of his Miranda rights at 8:56 a.m. (Id. at 10-11.) According to Detective Watson,

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he advised Ellison as follows:

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You have the right to remain silent. Anything you say can and will be used
against you in a court of law. You have the right to the presence of an
attorney to assist you during questioning. If you cannot afford an attorney,
one will be provided to you by the court. You also have the right to refuse
to answer any questions at any time if you decide to do so. And like what
that last one means is if I ask you something too personal about your sex life,
you don’t have to answer it just because I’m a cop. Do you understand that?

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(Id. at 33.) According to Detective Watson, Ellison stated he understood his rights and
agreed to talk to the detectives. (Id. at 11.)
Detective Watson testified that he told Ellison he had details of Ellison’s and Finch’s

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“ROA” refers to the Record on Appeal in Ellison’s direct appeal to the Arizona
Supreme Court. The index to the ROA, which is divided into six volumes, identifies
various documents in chronological order and assigns a number to each such document.
Here, the cited document is Document 18, which appears in Volume I of the ROA. The
ROA also includes various hearing transcripts. Each transcript will be cited as “RT”
followed by the relevant hearing date.
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participation in the crimes. (Id.) Detective Auld told Ellison he “did not believe he

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[Ellison] was a bad guy.” (Id. at 12.) Detective Watson then told Ellison that he “didn’t

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believe that he . . . . intended for those people to die.” (Id.)

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According to Detective Watson, “Ellison immediately sat back in his chair and said,

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‘Die? I don’t know what you’re talking about.’ And then shortly after that said, ‘I think I

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might want a lawyer.’” (Id.)

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Detective Auld similarly testified that Ellison “acted shocked. Sat back in his chair;

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said ‘Die? I don’t know what you’re talking about.’” (Id. at 68.) Likewise, Detective

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Auld testified (consistent with Detective Watson) that Ellison then said, “‘I think I might

10

want a lawyer.’” (Id. at 69.)

11

Detective Watson testified that, at this point in the interview, he and Detective Auld

12

told Ellison that they “could not talk to him any further until” until they had a clear “yes or

13

no” answer as to whether Ellison wanted an attorney. (Id. at 13.) Detective Auld told

14

Ellison that they had “a mountain of physical evidence and one side of the story” but they

15

couldn’t talk to him if he wanted a lawyer. (Id. at 13-14, 70.) The detectives also told

16

Ellison they had Finch in custody. (Id. at 14, 71.)

17

Detective Auld testified that he tried to get Ellison “to make it clear to me whether

18

or not he wanted a lawyer.” (Id. at 69.) Detective Auld testified that Ellison asked

19

questions about the charges, but either Detective Auld or Detective Watson told him they

20

could not continue the interview unless Ellison made it clear whether he wanted a lawyer.

21

(Id. at 69-70.)

22

Detective Auld then left the room, saying “Okay. That’s it, then. We’re done.” (Id.

23

at 14, 71.) He testified that he left because he was unsure whether Ellison wanted an

24

attorney. (Id. at 71.) According to Detective Watson, who stayed in the room, Ellison still

25

had not given a clear answer as to whether he wanted an attorney. (Id. at 15.)

26

At this point, according to Detective Watson, Ellison asked what he was being

27

charged with. (Id.) Detective Watson responded, “two counts of first degree murder.”

28

(Id.) Ellison “appeared to be very upset” and agitated. (Id. at 16.) He asked: “Can’t we

- 13 -

1

just forget about the lawyer thing?” (Id.) Detective Watson replied: “No. If I’m not going

2

to lie to you, I’m not going to lie to a judge. We can’t just forget about the lawyer thing.”

3

(Id.) He told Ellison: “You need to be very clear. Do you want to talk to us or do you

4

not?” (Id.) In response, Ellison said “I will talk to you” and told Detective Watson that he

5
6

did not want an attorney. (Id.)
Detective Watson then called Detective Auld back into the room. (Id.) Detective

7

Auld advised Ellison that he had “a right to remain silent, that he had a right to have a

8

lawyer, that he needed to make it clear to us that he didn’t want a lawyer anymore, and that

9

he could stop talking to us at any time if he chose to or wanted to.” (Id. at 72.) Ellison

10
11
12
13
14
15
16
17
18
19
20
21
22

repeated that he was willing to talk and did not want a lawyer. (Id. at 17, 72-73.)
Ellison then spoke with the detectives. Both detectives testified that Ellison, just
before returning to his cell, offered to testify against Finch. (Id. at 19, 75.) According to
Detective Watson, testifying against Finch was Ellison’s idea. (Id. at 19.) Detective
Watson told Ellison he would relay the offer to the county attorney. (Id. at 20.)
Detective Watson denied making any promises of leniency or reduced charges or
using threats or physical force against Ellison.

(Id. at 20-21.)

Detective Watson

specifically denied that he or Detective Auld told Ellison he would not be charged with
murder if he cooperated. (Id. at 21.)
When Detective Watson realized the interview had not been recorded, he returned
to the jail to get “the highlights of the interview clarified on tape.” (Id.) A transcript of
the second, taped interview was admitted at the voluntariness hearing. (Id. at 22.) During
the second interview, Detective Watson asked Ellison:

23
24
25
26
27
28

I advised you of your rights before we talked right? Okay, during the
interview, you said you wanted an attorney. Then you said, “No, I will talk
to you.” You made it real clear to Steve and I that you would talk to us; is
that correct? That’s a yes if you’re nodding your head. At that point Ellison
says “‘Yeah.’”
(Id. at 24.) Detective Watson also told Ellison:
Remember the deal, I’m not lying to you, I’m not going to bullshit you.
- 14 -

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

That’s what got this whole thing started. . . . The reason I’ve come back
down here is I want to make sure it’s clear and there’s no mistakes. And
when I talk to the county attorney and you said you’d testify, I want to have
what you were saying real clear about the fact that this was Richard’s idea.
(Id. at 23-24.)
During his testimony, Detective Watson reiterated that in the first interview Ellison
said “I think I might want a lawyer” and not, as phrased by Detective Watson in the second
interview, “you wanted an attorney.” (Id. at 26-27.) Detective Watson further testified
that the “deal” did not refer to leniency. (Id. at 37.) He stated that “deal” referred to
statements he made in the first interview about not lying or playing games. (Id. at 37.)
Ellison also testified during the voluntariness hearing and provided a very different
account of his interviews. He testified that the detectives informed him of his Miranda
rights and then “started talking about, you know, we know you’re not the bad guy here, we
know you didn’t kill anybody.” (RT 11/23/99 at 16.) According to Ellison, at that point
he “freaked out” and “said I want a lawyer.” (Id. at 16-17.) Ellison testified that Detective
Auld responded by asking if he wanted an attorney and he again said yes. (Id. at 17.)
Ellison testified that he believed Detective Auld was trying to intimidate him. (Id.) Ellison
also testified that the detectives talked about the mountain of physical evidence they had
against him and the fact that they only had one side of the story. (Id.) According to Ellison,
they asked him if he knew anything about the crimes. (Id. at 18.)
Ellison testified that Detective Auld “got mad and left.” (Id.) According to Ellison,
Detective Watson then said if he testified against Finch, Detective Watson would get the
county attorney to reduce the charges to burglary. (Id.) According to Ellison, only then
did he agree to talk. (Id. at 18-19.) Ellison testified that he would not have talked to the
detectives without the promise of leniency. (Id. at 26.) Ellison also denied the detectives’
claim that testifying against Finch was his idea. (Id. at 30.) Ellison testified that he did not
make any specific statements about reduced charges or leniency during the taped interview
because he “thought it was clear what was going on.” (Id. at 31.)
Following Ellison’s testimony and the parties’ arguments, Judge Moon denied the
- 15 -

1
2
3
4

motion to suppress. (Id. at 49.) He found that Ellison’s statements to Detectives Auld and
Watson were “made in compliance with the requirements of the Miranda decision.” (Id.)
He further found that Ellison understood those rights and voluntarily waived them—
including his right to the assistance of an attorney—before speaking with the detectives.

5

(Id. at 49, 50.) Judge Moon found Ellison’s testimony to be “highly suspect,” in part

6

because of Ellison’s prior felony convictions.7 (Id. at 49.) Judge Moon also found that

7

Ellison “did not initially clearly invoke his right to an attorney or request an attorney, but .

8
9

. . made an equivocal statement to the effect that he thought he might want an attorney, and
that the police did what the law requires them to do, which is . . . to get an unequivocal

10

answer that he’s either asking for an attorney or he’s agreeing to talk without an attorney.”

11

(Id. at 49-50.) Finally, Judge Moon determined that the detectives did not make “an express

12

or implied promise of any kind of leniency for making a statement” and that Ellison did

13

not rely on any promises in making his statements. (Id. at 50.)

14

2.

15

a.

16
17
18
19

22
23
24
25
26

Right To Counsel

The Arizona Supreme Court denied Ellison’s claim that his rights under Miranda
were violated. Ellison, 140 P.3d at 909-10. That decision was not contrary to or an
unreasonable application of clearly established federal law, nor was it based on an
unreasonable determination of the facts.

20
21

Analysis

When a suspect invokes his Fifth Amendment right to have counsel present during
a custodial interrogation, “the interrogation must cease until an attorney is present.”
Miranda, 384 U.S. at 474. Police may not continue questioning such a suspect without
counsel present “unless the accused himself initiates further communication.” Edwards v.
Arizona, 451 U.S. 477, 484-85 (1981). However, only an unambiguous invocation of the
right to counsel triggers protection under Edwards. Davis v. United States, 512 U.S. 452,
459 (1994) (“[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal

27
7

28

Ellison testified that he had prior felony convictions for possession of marijuana and
armed robbery. (RT 11/23/99 at 27.)
- 16 -

1

in that a reasonable officer in light of the circumstances would have understood only that

2

the suspect might be invoking the right to counsel, our precedents do not require the

3

cessation of questioning.”). An invocation is unambiguous if the accused “articulate[s] his

4

desire to have counsel present sufficiently clearly that a reasonable police officer in the

5

circumstances would understand the statement to be a request for an attorney.” Id. “Mere

6

mention of an attorney does not constitute an [un]equivocal request for counsel, as the word

7

‘attorney’ is not talismanic.” Norman v. Ducharme, 871 F.2d 1483, 1486 (9th Cir. 1989).

8

In sum, nothing prevents police from questioning a suspect “when the suspect might want

9

a lawyer. Unless the suspect actually requests an attorney, questioning may continue.”

10

Davis, 512 U.S. at 462. See also Arnold v. Runnels, 421 F.3d 859, 865 (9th Cir. 2005)

11

(“[J]ust as in Davis, where a suspect’s request for counsel is qualified with words such as

12

‘maybe’ or ‘might,’ we have concluded that the suspect did not unambiguously invoke his

13

right to counsel.”).

14

The Arizona Supreme Court held that Ellison made only “an equivocal request for

15

counsel.” Ellison, 140 P.3d at 910. The court first noted that “[t]he only evidence

16

regarding Ellison’s reference to a lawyer is the conflicting testimony of Ellison and the

17

detectives” and that “Judge Moon, who was able to assess the witnesses during the

18

voluntariness hearing, determined that the officers’ account was more credible.” Id.

19

Viewing the evidence in the light most favorable to upholding the judge’s ruling, the court

20

assumed that Ellison said “I think I might want an attorney.” Id. This is a factual

21

determination entitled to a presumption of correctness. 28 U.S.C. § 2254(e)(1); Robinson

22

v. Borg, 918 F.2d 1387, 1390 (9th Cir. 1990) (“The state court’s determination of what is

23

said during an interrogation constitutes a factual finding entitled to a presumption of

24

correctness . . . .”). Ellison has not rebutted that presumption of correctness with the

25

required “clear and convincing” evidence. Marshall v. Lonberger, 459 U.S. 422, 434,

26

(1983) (“[F]ederal habeas courts [have] no license to redetermine credibility of witnesses

27

whose demeanor has been observed by the state trial court, but not by them.”);

28

Sophanthavong v. Palmateer, 378 F.3d 859, 867 (9th Cir. 2004) (“Here, because the state

- 17 -

1

court conducted an evidentiary hearing in which [petitioner] testified, we are required to

2

defer to the state court’s credibility findings.”) (citations omitted).

3

Next, relying on Davis and State v. Eastlack, 883 P.2d 999 (Ariz. 1994), the Arizona

4

Supreme Court held the detectives were not required to stop questioning Ellison after his

5

equivocal statement “I think I might want a lawyer” and were not required to limit their

6

questions to clarifying Ellison’s request for counsel. Ellison, 140 P.3d at 910. The court

7

thus concluded that the detective’s continued questioning of Ellison was proper. Id.

8

The Arizona Supreme Court reasonably applied Davis in finding that Ellison did

9

not clearly and unambiguously invoke his right to counsel. In Davis, the Supreme Court

10

held that the defendant’s statement “maybe I should talk to a lawyer” was not an

11

unambiguous request for counsel. 512 U.S. at 459. Likewise, in United States v. Younger,

12

398 F.3d 1179 (9th Cir. 2005), the Ninth Circuit concluded that a defendant’s statement

13

“But, excuse me, if I am right, I can have a lawyer present through all this, right?” did not

14

constitute an unambiguous invocation of right to counsel. Id. at 1187. And again, in Clark

15

v. Murphy, 331 F.3d 1062 (9th Cir. 2003), the Ninth Circuit held that the Arizona Supreme

16

Court was not objectively unreasonable in its conclusion that a statement similar to (and

17

arguably less ambiguous than) Ellison’s—“I think I would like to talk to a lawyer”—was

18

not an unequivocal request for counsel. Id. at 1069-70. See also Diaz v. Senkowski, 76

19

F.3d 61, 64-65 & n.1 (2d Cir. 1996) (“I think I want a lawyer” did not “effectively assert

20

[defendant’s] right to counsel”); United States v. Mullikin, 534 F. Supp. 2d 734, 743 (E.D.

21

Ky. 2006) (“Defendant did not invoke his right to counsel because the statement was

22

equivocal and ambiguous. The credible testimony of Detective Stowers shows that

23

Defendant stated, ‘I think I might need a lawyer’ . . . .”).

24

In an attempt to establish that he unequivocally invoked his right to counsel, Ellison

25

cites an unpublished Ninth Circuit decision and several state-court cases. However, such

26

decisions do not constitute clearly established federal law for AEPDA purposes. At any

27

rate, the invocations offered by the defendants in Ellison’s cited cases—United States v.

28

Escobedo-Gomez, 715 F. App’x 743, 744 (9th Cir. 2018) (“I guess I’ll, I’ll wait for the

- 18 -

1

attorney.”); State v. Jackson, 497 S.E. 2d 409, 412 (N.C. 1998) (“I think I need a lawyer

2

present.”); McDaniel v. Commonwealth, 518 S.E. 2d 851, 852 (Va. 1999) (“I think I would

3

rather have an attorney here to speak for me.”)—are distinguishable from Ellison’s

4

statement “I think I might want a lawyer” because they lacked the modifier “might.”

5

Arnold, 421 F.3d at 865 (“[W]here a suspect’s request for counsel is qualified with words

6

such as ‘maybe’ or ‘might,’ we have concluded that the suspect did not unambiguously

7

invoke his right to counsel.”).8

8

Ellison also contends that the contemporaneous responses of Detectives Watson and

9

Auld demonstrated that they understood him to be asking for a lawyer. (Doc. 21 at 52-53.)

10

This assertion is belied by the record. The testimony at the voluntariness hearing showed

11

that, following Ellison’s statement, the detectives attempted to clarify whether he wanted

12

an attorney or wanted to speak with them. The testimony did not show, as Ellison contends,

13

that “it became clear that Ellison declined to talk without an attorney and in fact remained

14

silent.” (Doc. 21 at 53.) To the contrary, Detective Watson testified that he told Ellison

15

that Finch had been arrested and Ellison responded, “You’ve arrested Richard?” (RT

16

7/20/99 at 14.) Ellison also asked the detectives what he was being charged with and if it

17

would affect his parole.9 (Id. at 15, 69.) The detectives continued to speak with Ellison

18
8

19
20
21
22
23
24
25
26
27
28

In his reply, Ellison cites cases in which courts assumed or accepted the following
statements to be unequivocal requests for counsel: “I think I should call my lawyer,”
Cannady v. Dugger, 931 F.2d 752, 754 (11th Cir. 1991); “I think I should call an attorney,”
Shedelbower v. Estelle, 885 F.2d 570, 571 (9th Cir. 1989); and “I think I want to talk to a
lawyer,” United States v. Perkins, 608 F.2d 1064, 1066 (5th Cir. 1979). But again, these
cases do not qualify as clearly established law under AEDPA and they are factually
distinguishable because the invocations at issue lacked the ambiguity the word “might”
injected into Ellison’s statement. Arnold, 421 F.3d at 865. Also, unlike Detectives Watson
and Auld, the officers in those cases responded to the statements in ways that indicated
they understood the defendant was requesting counsel. Cannady, 931 F.2d at 755 (officer
“pushed phone toward Cannady and waited for him to make the call”); Shedelbower, 885
F.2d at 571-72 (officer told defendant he would have to call a private attorney or wait until
the next morning for appointment of a public defender); Perkins, 608 F.2d at 1066 (officer
handed Perkins the Yellow Pages).
9

Citing Oregon v. Bradshaw, 462 U.S. 1039 (1983), Respondents contend that even
if Ellison unambiguously invoked his right to counsel, he waived that right when he
- 19 -

1

about whether he wanted a lawyer but Ellison never provided a clear answer. (Id.) Thus,

2

contrary to Ellison’s argument, the actions of Detectives Watson and Auld were consistent

3

with a belief that Ellison had not unequivocally invoked his right to counsel.

4

Finally, Ellison argues that his waiver of his right to counsel could not be valid given

5

Detective Watson’s explanation of the right to remain silent: “if I ask you something too

6

personal about your sex life, you don’t have to answer it just because I’m a cop.” (Doc. 21

7

at 54.) This argument is unavailing. “Miranda prescribed the following four now-familiar

8

warnings: ‘A suspect must be warned prior to any questioning [1] that he has the right to

9

remain silent, [2] that anything he says can be used against him in a court of law, [3] that

10

he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney

11

one will be appointed for him prior to any questioning if he so desires.’” Florida. v. Powell,

12

559 U.S. 50, 59-60 (2010) (cleaned up). Although these four warnings are “invariable,”

13

the Supreme Court “has not dictated the words in which the essential information must be

14

conveyed.” Id. at 60. “Reviewing courts therefore need not examine Miranda warnings

15

as if construing a will or defining the terms of an easement. The inquiry is simply whether

16

the warnings reasonably convey to a suspect his rights as required by Miranda.”

17

Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (cleaned up).

18

The totality of the circumstances demonstrates that Detective Watson adequately

19

informed Ellison of his right to remain silent. Watson recited the four Miranda warnings,

20

informing Ellison he had “the right to remain silent” and that “[a]nything you say can and

21

will be used against you in a court of law.” (RT 7/20/99 at 33.) Given this clear language,

22

and Ellison’s familiarity with the Miranda advisory—he testified that it had been read to

23

him before and that he understood his rights (RT 11/23/99 at 28)—Detective Watson’s

24
25
26
27
28

reinitiated conversation with the detectives. (Doc. 30 at 36-38.) The Court disagrees. If
Ellison had unequivocally invoked his right to counsel, the detectives would have been
required under Miranda and Edwards to cease their interrogation (which they did not do).
Anderson v. Terhune, 516 F.3d 781, 791 (9th Cir. 2008) (“[A]ll questioning must
immediately cease once the right to remain silent is invoked, and . . . any subsequent
statements by the defendant in response to continued interrogation cannot be used to find
a waiver or cast ambiguity on the earlier invocation.”).
- 20 -

1

elaboration on “the right to refuse to answer questions at any time if you decide to do so”

2

(RT 7/10/99 at 33) did not prevent the warnings from reasonably conveying Ellison’s

3

Miranda rights. Duckworth, 492 U.S. at 203-05; Prysock, 453 U.S. at 361.10

4

b.

Voluntariness

5

The Arizona Supreme Court denied Ellison’s claim that his confession was

6

involuntary due to the promises of leniency offered by the detectives. Ellison, 140 P.3d at

7

910-11. The court concluded that Judge Moon did not abuse his discretion in finding the

8

confession voluntary. Id. The court first noted that, “[t]o be admissible, a statement must

9

be voluntary, not obtained by coercion or improper inducement.” Id. at 910 (citing Haynes

10

v. Washington, 373 U.S. 503, 513-14 (1963)). “Promises of benefits or leniency, whether

11

direct or implied, even if only slight in value, are impermissibly coercive.” Id. (quotation

12

omitted). The court explained that although “[i]n Arizona, a suspect’s statement is

13

presumptively involuntary,” “[a] prima facie case for admission of a confession is made

14

when the officer testifies that the confession was obtained without threat, coercion or

15

promises of immunity or a lesser penalty.” Id. (quotation omitted). The court then noted

16

that Detectives Watson and Auld “testified that they never asked Ellison to testify against

17

Finch and never suggested any charges would be dropped if he testified; nor did they

18

threaten or otherwise intimidate him.” Id. at 911. The court explained that Ellison’s claim

19

that his confession was induced by promises of leniency “presume[d] the truth of his

20

version of events, despite contrary testimony by the detectives.” Id. The court continued:

21
22
23
24
25
26
27
28

10

Ellison argues that Arizona Supreme Court failed to rule on a portion of his Miranda
claim—namely, the allegation that his right to remain silent was violated as well as his
right to an attorney. He thus contends that this Court must review that portion of his claim
de novo. (Doc. 21 at 55 n.11.) But even assuming the de novo standard applies, this claim
fails on the merits. Like the right to counsel, the right to remain silent must be invoked
unambiguously. Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010). If a suspect makes
a statement concerning his right to silence “‘that is ambiguous or equivocal’ or makes no
statement, the police are not required to end the interrogation, or ask questions to clarify
whether the accused wants to invoke his or her Miranda rights.” Id. (citation omitted).
Here, Ellison made no statement, let alone an unambiguous one, concerning his right to
remain silent.
- 21 -

1

5

Judge Moon, however, concluded that Detective Watson’s testimony was
more credible and determined the evidence did not show any express or
implied promises of leniency. Moreover, it does not appear that Ellison’s
will was overborne by any promises of leniency. Although he agreed to talk
with the detectives, he maintained that Finch was the ringleader and that he
acted only under duress. Ellison also admitted being familiar with, and
understanding, his Miranda rights.

6

Id. This decision was not contrary to or an unreasonable application of clearly established

7

federal law, nor was it based on an unreasonable determination of the facts.

2
3
4

8

A statement is involuntary if it is “extracted by any sort of threats or violence, or

9

obtained by any direct or implied promises, however slight, or by the exertion of any

10

improper influence.”

11

considering whether a confession is voluntary, “[t]he test is whether, considering the

12

totality of the circumstances, the government obtained the statement by physical or

13

psychological coercion or by improper inducement so that the suspect’s will was

14

overborne.” United States v. Guerrero, 847 F.2d 1363, 1365 (9th Cir. 1988). “As long as

15

the decision is a product of the suspect’s own balancing of competing considerations, the

16

confession is voluntary.” United States v. Miller, 984 F.2d 1028, 1031 (9th Cir. 1993)

17

(cleaned up).

Hutto v. Ross, 429 U.S. 28, 30 (1976) (cleaned up).

When

18

Ellison’s involuntariness claim fails because, as the state courts found, the detectives

19

did not make promises of leniency, express or implied, to Ellison. Instead, it was Ellison

20

who volunteered to testify against Finch. This factual finding is entitled to a presumption

21

of correctness. 28 U.S.C. § 2254(e)(1); Robinson, 918 F.2d at 1390; Lonberger, 459 U.S.

22

at 434; Sophanthavong, 378 F.3d at 867. Ellison has not rebutted that presumption with

23

clear and convincing evidence. Although Watson used the word “deal” in the second,

24

recorded interview, he explained (and Judge Moon accepted) that he was referring not to

25

leniency but to his statements to Ellison in the first interview about being honest and not

26

playing games.

27

At any rate, the conduct alleged by Ellison would not have rendered his confession

28

involuntary. “[C]oercive police activity is a necessary predicate to the finding that a

- 22 -

1

confession is not ‘voluntary’ within the meaning of the Due Process Clause of the

2

Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 167 (1986). Significantly,

3

although Ellison argues that “[Detective] Watson’s promise to talk to the county attorney

4

and secure reduced charges rendered Ellison’s statements involuntary” (Doc. 21 at 58), the

5

Ninth Circuit has clarified that “in most circumstances, speculation that cooperation will

6

benefit the defendant or even promises to recommend leniency are not sufficiently

7

compelling to overbear a defendant’s will.” United States v. Harrison, 34 F.3d 886, 891

8

(9th Cir. 1994) (emphasis added). See also Williams v. Woodford, 384 F.3d 567, 594 (9th

9

Cir. 2004) (“An interrogating agent’s suggestion that a suspect’s cooperation with the

10

government will have a positive effect on the suspect’s possible sentence is not an improper

11

inducement that causes the suspect’s later testimony for the government to be

12

involuntary.”) (citing Guerrero, 847 F.2d at 1366).

13

B.

14

In Claim 2, Ellison alleges that his convictions and sentences must be vacated

15

because the trial judge was “prejudiced and biased” in violation of the Fifth, Sixth, Eighth,

16

and Fourteenth Amendments. (Doc. 21 at 59-65.) The Arizona Supreme Court rejected

17

this claim on direct appeal. Ellison, 140 P.3d at 911-12.

18

Claim 2

1.

Background

19

During a pretrial conference, Ellison’s counsel questioned Judge Moon about his

20

impartiality in light of newspaper accounts of the sentencing proceedings in Finch’s trial.

21

(RT 3/30/01 at 8 [“[W]hat is attributed to you are statements to the effect that you believe

22

my client [Ellison] to be the more culpable of the two, you believed that Finch was afraid

23

of my client at the time he did what he did. And this gives [us] some pause to consider

24

Your Honor’s impartiality as is relates to this particular defendant . . . .”].) Counsel then

25

asked Judge Moon to recuse himself. (Id.) The judge responded that he had made specific

26

findings in Finch’s case based on the evidence presented at that trial but invited defense

27

counsel to file a motion for recusal. (Id. at 12-14 [“I don’t feel that I cannot be fair and

28

impartial in the rest of the proceedings against Mr. Ellison. But, you know, you’re free to

- 23 -

1

file a motion, ask another judge to make that decision.”].) Counsel did not file such a

2

motion.

3

In denying this claim on direct appeal, the Arizona Supreme Court first noted that

4

“[j]udges are presumed to be impartial, and the party moving for change of judge must

5

prove a judge’s bias or prejudice by a preponderance of the evidence.” Ellison, 140 P.3d

6

at 911 (citation omitted). The court explained that “there is no per se disqualification of a

7

sentencing trial judge who presides over a codefendant’s trial,” nor is “bias or prejudice

8

inherent in presiding over a defendant’s subsequent proceeding, even though the judge has

9

heard unfavorable remarks about the defendant in prior proceedings, particularly when the

10

judge states he will keep an open mind.” Id. at 912 (citation omitted). Citing Liteky v.

11

United States, 510 U.S. 540 (1994), the court emphasized that only rarely do judicial

12

rulings or opinions formed by a judge during current or prior proceedings form the grounds

13

for a bias or partiality motion. Id.

14

Against this backdrop, the court rejected Ellison’s argument “that the sentencing of

15

Finch reflect[ed] that Judge Moon was biased against Ellison.” Id. The court noted that

16

“Judge Moon . . . emphasized that his decisions in Finch’s case were based on the evidence

17

presented at that trial. He also promised to make his decisions in Ellison’s case based

18

solely on the evidence produced during Ellison’s trial.” Id. Finally, the court noted that

19

“Judge Moon did not err in any of the challenged evidentiary rulings . . . and ruled in

20

Ellison’s favor to exclude several hearsay statements.” (Id.) The court therefore concluded

21

that Ellison “failed to show bias or prejudice that would require Judge Moon’s

22

disqualification . . . .” (Id.)

23

2.

Analysis

24

The Arizona Supreme Court’s decision was not contrary to or an unreasonable

25

application of clearly established federal law, nor was it based on an unreasonable

26

determination of the facts. The Due Process Clause guarantees a criminal defendant the

27

right to a fair and impartial judge. In re Murchison, 349 U.S. 133, 136 (1955); Rhoades v.

28

Henry, 598 F.3d 511, 519 (9th Cir. 2010) (“Due process requires that trials be conducted

- 24 -

1

free of actual bias as well as the appearance of bias.”). “To succeed on a judicial bias claim,

2

however, the petitioner must ‘overcome a presumption of honesty and integrity in those

3
4
5
6

serving as adjudicators.’” Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008)
(citation omitted).
The Ninth Circuit has “repeatedly concluded that a state court’s finding that the trial
judge was impartial . . . is a finding of historical fact that is entitled to a presumption of

7

correctness under 28 U.S.C. § 2254(d).” Sivak v. Hardison, 658 F.3d 898, 924 (9th Cir.

8

2011) (citation omitted). This Court, applying the “twin presumptions,” id., of deference

9
10
11
12
13

to the state courts’ determination that Judge Moon was not biased and the presumption of
judicial integrity, concludes that Ellison’s judicial bias claim is meritless.
First, the fact that Judge Moon presided over Finch’s trial does not support a finding
of bias. In Paradis v. Arave, 20 F.3d 950 (9th Cir. 1994), the Ninth Circuit found no bias
where the judge presided over the co-defendant’s trial and sentenced the co-defendant to

14

death. Id. at 958. The court rejected the “mistaken notion that a trial judge’s exposure to

15

evidence, standing alone, demonstrated bias.” Id. See also United States v. Monaco, 852

16

F.2d 1143, 1147 (9th Cir. 1988) (“[K]nowledge obtained from judicial proceedings

17
18
19

involving a co-defendant does not require recusal.”).
Next, Judge Moon’s comments about the evidence or about Ellison are insufficient
to support a finding a bias. In Liteky, the Supreme Court explained that a judge’s conduct

20

at trial may be “characterized as bias or prejudice” only if “it is so extreme as to display

21

clear inability to render fair judgment” or “display[s] a deep-seated favoritism or

22

antagonism that would make fair judgment impossible.” 510 U.S. at 551, 555. “[J]udicial

23

remarks during the course of a trial that are critical or disapproving of, or even hostile to,

24

counsel, the parties, or their cases” do not establish bias unless “they reveal such a high

25

degree of favoritism or antagonism as to make fair judgment impossible.” Id. at 555. That

26
27
28

standard was not met here.
Moreover, none of Judge Moon’s remarks “emanate[d] from an extrajudicial
source.”

Monaco, 852 F.2d at 1147 (“[T]he comments made by the judge do not
- 25 -

1

demonstrate pervasive bias or prejudice. These statements simply reflect that the judge

2

was appropriately outraged at the enormity of the crime that had taken place. . . .”). “In

3

the absence of any evidence of some extrajudicial source of bias or partiality, neither

4

adverse rulings nor impatient remarks are generally sufficient to overcome the presumption

5

of judicial integrity.” Larson, 515 F.3d at 1067. See also Liteky, 510 U.S. at 555

6

(“[O]pinions formed by the judge on the basis of facts introduced or events occurring in

7

the course of the current proceedings, or of prior proceedings, do not constitute a basis for

8

a bias or partiality motion unless they display a deep-seated favoritism or antagonism that

9

would make fair judgment impossible.”).

10

Finally, as the Arizona Supreme Court noted, “judicial rulings alone almost never

11

constitute [a] valid basis for a bias or partiality recusal motion.” Ellison, 140 P.3d at 912

12

(quoting Liteky, 510 U.S. at 555). As discussed below, there is nothing in the trial court’s

13

rulings that overcomes the presumption of impartiality.

14

Respondents correctly note that Ellison did not allege actual bias in his habeas

15

petition. (Doc. 30 at 43.) They then cite Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007),

16

in which the Ninth Circuit observed that “Supreme Court precedent reveals only three

17

circumstances in which an appearance of bias—as opposed to evidence of actual bias—

18

necessitates recusal.” Id. at 1131. According to Crater, due process requires recusal when

19

(1) a judge has a pecuniary interest in the outcome of the litigation, Tumey v. Ohio, 273

20

U.S. 510, 523 (1927); (2) a judge is “embroiled in a running, bitter controversy” with one

21

of the parties, Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1970); and (3) a judge acts

22

as “part of the accusatory process,” Murchison, 349 U.S. at 137. Crater, 491 F.3d at

23

1131.11 In his reply, Ellison argues that actual bias was demonstrated because Judge Moon

24
25
26
27
28

Although “circuit precedent does not constitute ‘clearly established Federal law’”
and “cannot form the basis for habeas relief under AEDPA,” Parker v. Matthews, 567 U.S.
37, 48-49 (2012), a reviewing court may look to such precedent “to ascertain whether it
has already held that the particular point in issue is clearly established by Supreme Court
precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013). This distinction “is subtle, yet
substantial.” Marshall, 569 U.S. at 64.
11

- 26 -

1

prejudged his case and made disparaging remarks about him during the sentencing

2

proceedings in Finch’s case, using words like “ghastly” and “the devil” to describe

3

Ellison’s appearance.12 (Doc. 38 at 26-28.) Ellison also argues that an impermissible

4

appearance of bias existed because he and Judge Moon were involved in a “bitter

5

controversy.” (Id. at 28.)

6

These arguments are unpersuasive in light of Crater. There, during a pretrial

7

conference following the armed robbery and murder convictions of Crater’s co-defendant,

8

the judge met with Crater and the prosecutor to discuss a proposed plea deal. 491 F.3d at

9

1121. Although the prosecutor made the “major concession” of offering to drop the special

10

circumstance allegation, Crater was reluctant to accept the offer. Id. In attempting to

11

persuade Crater that the deal was in his best interest, the trial judge introduced himself and

12

stated: “I’m going to be trying your case. And I’m going to be sentencing you as well if

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Ellison focuses on remarks Judge Moon made when addressing Finch’s argument
that he committed the murder of Mrs. Boucher under unusual substantial duress from
Ellison—a mitigating circumstance conceded by the State and found by the court. (Doc.
43-1 at 20.) Ellison quotes Judge Moon (Doc. 21 at 62), but the cited passage omits
significant context surrounding the judge’s comments. Judge Moon first stated he didn’t
“know how many people honestly in that situation could do other than what Mr. Finch
did.” (Doc. 43 at 41 [RT 2/20/01 at 41].) Judge Moon continued, however, that he didn’t
“know that many people who would ever have been in that situation in the first place.”
(Id.) Judge Moon then offered the remarks which Ellison quotes, in part, to show bias:
12

The testimony about how ghastly Ellison looked and what terrible stories he
possessed, he looked that way before they ever got in the car together. He’s
tatted up, he looks like a—you know, an Aryan Brotherhood member, if he
isn’t. And so this—it wasn’t a guy who was wearing some kind of religious
cloak and hood who suddenly ripped them off and said, “See, I’m really the
devil.” He looked like the devil to begin with. And so why a guy would ever
go along with that is something that’s hard for me to understand. Hearing
some of the testimony about his upbringing makes it somewhat more
understandable. But the duress issue is—is an important issue to me. And
there are others.
(Id. at 41-42.) When quoting this passage, Ellison omits the italicized portions, which
clarify that the judge’s comments about Ellison’s appearance were based on the evidence
and were offered for the specific purpose of evaluating Finch’s mitigating evidence.
- 27 -

1

you’re found guilty, which I expect will happen.” Id. at 1130. The judge continued:

7

Based upon what I know about this case—and I’m in a very unique position
in this case, because I’ve already heard all of the witnesses, I know
everything that happened that night, and I have assessed everything that the
witnesses have said, and therefore, I know what they are going to say about
you. And based upon what I’ve heard about this case, I’m real sure that
you’re going to be convicted of all of those robberies, that you’re going to be
convicted of shooting the first robbery victim. You’re going to be convicted
of all of the attempted robberies, and you’re going to be found guilty of
murder in the first degree. I’m real sure all that’s going to happen.

8

....

9

A jury is not going to like you. A jury is going to be frightened by what they
hear from these witnesses occurring that night. . . . You have very little to
go on in this case. You might beat the special circumstance; I don’t think
you will. . . . And I, as the judge, am supposed to keep an open mind about
what sentence to impose. . . . This much I can tell you, I would have no
discretion on first degree murder, none. . . . I can also tell you that most
judges looking at what happened that night would probably be inclined to
impose consecutive penalties. . . . So most judges, I think, would throw the
book at you.

2
3
4
5
6

10
11
12
13
14
15

Id. at 1130-31.

16

Crater rejected the deal and moved to excuse the judge for bias. Id. at 1121. The

17

judge denied the motion. Id. Crater went to trial and was convicted on all counts and the

18

special circumstance. Id. On habeas review, the district court denied his claim of judicial

19

bias. Id. The Ninth Circuit affirmed, concluding that none of the three circumstances

20

requiring recusal based on an appearance of bias applied to Crater’s case. Id. at 1131-32.

21

The court noted that the judge did not become “‘personally embroiled’ in a controversy

22

with Crater, and Crater directed no ‘highly personal aspersions’ against him.” Id. at 1132

23

(citation omitted).

24

Here too, where the trial judge at most signaled his opinion of the defendant’s guilt

25

and predicted the jury’s negative reaction to the defendant, Ellison’s claim of judicial bias

26

fails. Like the judge’s comments in Crater, Judge Moon’s comments about Ellison were

27

“founded upon his legitimate knowledge of the proceedings and outcome in [the co-

28

defendant’s] case.” Id. at 1132. They “offer no evidence to overcome the presumption of

- 28 -

1

[judicial] honesty and integrity.” Id. (cleaned up).

2

In his reply, Ellison argues that Judge Moon’s comments about him indicated there

3

was a “bitter controversy.” (Doc. 38 at 28.) This argument lacks merit. The concern in

4

Mayberry was the judge’s ability to remain fair while being personally insulted by the

5

defendant during the latter’s trial for contempt. 400 U.S. at 466. Judge Moon’s comments

6

were based on the evidence presented at Finch’s trial, just as the comments of the judge in

7

Crater were based on evidence presented in the trial of Crater’s co-defendant.

8

Ellison also cites Porter v. Singletary, 49 F.3d 1483 (11th Cir. 1995) (per curiam),

9

and Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2005). (Doc. 38 at 26.) But his claim

10

“pales in comparison” to the evidence of bias in those cases. Sivak, 658 F.3d at 925. In

11

Porter, the Eleventh Circuit remanded where there was “specific and ostensibly reliable

12

evidence that the [state trial] judge had a fixed predisposition to sentence this particular

13

defendant to death if he were convicted by the jury.” 49 F.3d at 1489. The court clerk

14

submitted a declaration stating that “before or during Porter’s trial,” the trial judge said that

15

“‘he would send Porter to the chair.’” Id. at 1487. In Franklin, the trial judge “took the

16

highly unusual step of filing a memorandum with the state court of appeals” in an unrelated

17

case in which he referred to Franklin’s case “as an example of the terrible things that

18

happen when indigent prisoners are released on bail pending their appeals.” Id. at 957.

19

The judge also spoke with the media about the Franklin case. Id. at 961. In finding

20

impermissible bias, the Seventh Circuit noted that, under Liteky, both the memorandum

21

and the judge’s contacts with the newspaper were “extrajudicial activities vis-à-vis

22

Franklin’s own case.” Id. Here, in contrast, there were no extra-judicial activities on Judge

23

Moon’s part, nor any evidence that he was predisposed to sentence Ellison to death. As

24

evidence that Judge Moon had prejudged Ellison’s punishment, Ellison cites comments the

25

judge made in granting a continuance of the trial date, to the effect that he was aware of

26

the aggravating factors proved in Finch’s case, which he explained could not be “disproved,

27

because they have more to do with the victims rather than the defendants or their conduct.”

28

(8/17/01 at 4.) But this was simply an accurate statement of the facts with respect to the

- 29 -

1

aggravating factors of especial cruelty, multiple murders, and the age of the victims. Judge

2

Moon also acknowledged that he did not know “what kind of mitigation” Ellison had. (Id.)

3

Based on this record, there is no indication that Judge Moon had improperly prejudged

4

Ellison’s sentence. Thus, Ellison has failed to overcome the presumption of judicial

5

impartiality and the deference owed under AEDPA to the Arizona Supreme Court’s

6

decision rejecting this claim.

7

C.

8

In Claim 3, Ellison alleges that the jury-selection process deprived him of an

9

impartial jury and a fair and reliable trial, in violation of the Fifth, Sixth, Eighth, and

10

Fourteenth Amendments. (Doc. 21 at 65-69.) This claim consists of two subclaims. In

11

Claim 3(A), Ellison alleges that “[d]eath qualification is unconstitutional.” (Id. at 65-68.)

12

In Claim 3(B), Ellison alleges that “[e]rroneously informing the jury that it is not

13

responsible for the death verdict relieves jurors of their burden to seriously consider the

14

facts that form the basis for a death sentence.” (Id. at 68-69.) Ellison further contends that

15

he raised both of these claims on direct appeal but the Arizona Supreme Court only

16

addressed the burden-shifting claim. (Id. at 67.) Respondents counter that Ellison did not

17

fairly present Claim 3(A) and therefore that subclaim is unexhausted and procedurally

18

defaulted. (Doc. 30 at 46.)

Claim 3

19

Respondents have the better of this argument. The heading of Claim III of Ellison’s

20

opening brief to the Arizona Supreme Court was: “Selection of a death qualified jury

21

deprived Appellant of a fair and impartial jury, a fair trial and due process under the Sixth,

22

Eighth, and Fourteenth Amendments.” (Opening Br. at 34.) Ellison’s argument, however,

23

focused only on the burden-shifting claim raised in Claim 3(B) of his habeas petition. (Id.

24

at 34-36.) The Arizona Supreme Court addressed and denied that claim on the merits.

25

Ellison, 140 P.3d at 912.

26

The Ninth Circuit has explained that “[g]eneral appeals to broad constitutional

27

principles, such as due process, equal protection, and the right to a fair trial, do not establish

28

exhaustion.” Castillo v. McFadden, 399 F.3d 993, 1002 (9th Cir. 2005) (cleaned up).

- 30 -

1

“Exhaustion requires more than drive-by citation, detached from any articulation of an

2

underlying federal legal theory.” Id. at 1003. See also Fields v. Waddington, 401 F.3d

3

1018, 1021 (9th Cir. 2005) (“Nor is a federal claim exhausted by a petitioner’s mention, in

4

passing, of a broad constitutional concept, such as due process.”); Shumway v. Payne, 223

5

F.3d 982, 987 (9th Cir. 2000) (“Shumway’s naked reference to ‘due process’ . . . was

6

insufficient to state a federal claim. ‘[I]t is not enough to make a general appeal to a

7

constitutional guarantee as broad as due process to present the ‘substance’ of such a claim

8

to a state court.’”) (citation omitted).

9

Applying these standards, Ellison failed to fairly present Claim 3(A) in state court.

10

His “drive-by” citations of the Sixth, Eighth, and Fourteenth Amendments in the heading

11

of Claim III were not sufficient to alert the Arizona Supreme Court that he was raising a

12

claim that death-qualification of capital juries resulted in a federal constitutional violation.

13

As Respondents note, Ellison’s opening brief cited Caldwell v. Mississippi, 472 U.S. 320

14

(1985), which is relevant only to his burden-shifting claim and not to the allegation that the

15

death qualification of a jury violates the United States Constitution. “Citation of irrelevant

16

federal or state cases does not provide a state court with a fair opportunity to apply

17

controlling legal principles to the facts bearing upon his constitutional claim.” Castillo,

18

399 F.3d at 1001 (additional quotations omitted).

19

At any rate, in addition to being unexhausted and procedurally defaulted, Claim

20

3(A) is meritless.

It is well established that death-qualification does not violate a

21

defendant’s right to a fair and impartial jury. Lockhart v. McCree, 476 U.S. 162, 178

22

(1986); Wainwright v. Witt, 469 U.S. 412, 424 (1985); Ceja v. Stewart, 97 F.3d 1246, 1253

23

(9th Cir. 1996); Atwood v. Schriro, 489 F. Supp. 2d 982, 1047 (D. Ariz. 2007) (“There is

24

no per se rule that death-qualification of a guilt-phase jury is a constitutional violation.

25

Thus, the decision of the Arizona Supreme Court is not an unreasonable application of

26

controlling federal law.”).

27

Next, the Arizona Supreme Court’s rejection of Claim 3(B) was not contrary to or

28

an unreasonable application of clearly established federal law. Ellison had argued, as he

- 31 -

1

argues here, that his guilt-phase jury was “unconstitutionally relieved of the gravity of its

2

decision because potential jurors were told, in a questionnaire and instructions, they would

3

have no role in determining punishment and should not consider the likely punishment.”

4

Ellison, 140 P.3d at 912. In rejecting that argument, the Arizona Supreme Court noted

5

that, under Caldwell, “it is constitutionally impermissible to rest a death sentence on a

6

determination made by a sentencer who has been led to believe that the responsibility for

7

determining the appropriateness of the defendant’s death rests elsewhere.” Id. (quoting

8

Caldwell, 472 U.S. at 328-29).

9

“because, when his jury was selected, juries were not responsible for deciding whether a

10

The court explained that Ellison’s argument failed

death sentence is appropriate.” Id.

11

In January 2002, when Ellison was convicted, Arizona law provided that the trial

12

judge, not the jury, was responsible for sentencing decisions. Caldwell held that a death

13

sentence was invalid where the “sentencing jury” was misled about its responsibility for

14

determining the appropriateness of a death sentence. 472 U.S. at 323. Because Ellison’s

15

guilt-phase jury was not a sentencing jury, it was not misled about its responsibilities. At a

16

minimum, the Arizona Supreme Court’s interpretation of Caldwell as compelling this

17

outcome was not contrary to or an unreasonable application of clearly established federal

18

law.

19

D.

20

In Claim 4, Ellison alleges that the trial court’s evidentiary rulings regarding Finch’s

21

statements to Brad Howe deprived him of his right to confront adverse witnesses and to

22

reliable and fair proceedings, in violation of the Sixth, Eighth, and Fourteenth

23

Amendments. (Doc. 21 at 69-73.)

24

Claim 4

1.

Relevant Background

25

Before trial, Ellison asked the trial court to rule on the admissibility of certain

26

statements that Finch made to Howe after the murders. Ellison’s theory was that Finch’s

27

statements to Howe while the men were at Red’s Bar (in which Finch implicated himself

28

in the murders) were admissible as statements against interest but that Finch’s later

- 32 -

1

statements to Howe after they left Red’s Bar (in which Finch also implicated Ellison in the

2

murders) were inadmissible. Ellison, 140 P.3d at 913. To evaluate these claims, the trial

3

judge held an evidentiary hearing. Id.

4

During the hearing, Howe testified that while he and Finch were drinking at a bar,

5

Finch “started crying, and he said that he had killed two people last night.” (RT 3/14/00 at

6

15.) Howe testified that Finch also made additional statements after they left the bar and

7

were driving home. For example, Finch told Howe that he had gone with a person named

8

“Slinger, Charles Ellison to rob some people.” (Id. at 17.) Finch also told Howe that he

9

believed Ellison was an “enforcer” for the Aryan Brotherhood. (Id. at 30-31.) Finch also

10

told Howe that he believed he and Ellison “were going to threaten or scare somebody, not

11

to kill anyone.” (Id. at 31, 32.) According to Finch, Ellison pointed a gun at him and told

12

him, “If she [Mrs. Boucher] doesn’t stop breathing, I’m going to put a bullet in your head.”

13

(Id. at 32). Finch also told Howe that Ellison held a pillow over Mr. Boucher’s head. (Id.

14

at 33.) Finch further told Howe that when Ellison realized Mr. Boucher wasn’t dead,

15

Ellison pointed the gun at Finch and forced him to “finish off” the victim. (Id. at 34). Finch

16

told Howe that he had “looked into these people’s eyes and watched them die.” (Id. at 23.)

17

Finch also told Howe that Ellison removed property from the victims’ home. (Id. at 33-

18

34.) Finally, Howe stated that when he and Finch arrived home from the bar, Finch showed

19

Howe some of the items stolen from the Bouchers. (Id. at 25.)

20

Judge Moon ruled that Finch’s admission at the bar that he “had killed two people

21

last night” was admissible as a statement against penal interest under Arizona Rule of

22

Evidence 804(b)(3). (Id. at 50.) However, Judge Moon also ruled that if Ellison sought to

23

admit that statement, the State would then be permitted to admit “anything inconsistent” in

24

Finch’s other statements to Howe. (Id.) Based on these rulings, Ellison chose not to elicit

25

testimony at trial from Howe about Finch’s specific statements.

26

On direct appeal, Ellison argued that “the trial court abused its discretion when it

27

conditioned [Ellison’s] use of Finch’s statements to Brad Howe admitting to murdering

28

both victims upon the State being able to introduce all of Finch’s hearsay statements.”

- 33 -

1

(Opening Brief at 36.) Among other things, Ellison argued that “[a]lthough the trial court

2

was technically correct in determining that Finch’s statement that he killed two people

3

could be impeached with inconsistent statements under Rule 806, the court erred by

4

neglecting to consider whether the admission of the remainder of Finch’s statements would

5

violate the Confrontation Clause of the Sixth Amendment.” (Id. at 37.)

6

The Arizona Supreme Court rejected this claim, noting that “when a defendant seeks

7

to admit portions of his accomplice’s recorded statements, the trial judge may, under

8

Arizona Rule of Evidence 106, admit the remaining statements if necessary to avoid

9

confusing the jury.” Ellison, 140 P.3d at 913. The court held that in such circumstances,

10

“the Confrontation Clause is not even implicated.” Id. (citation omitted). The court stated

11

that the “rule of completeness” addresses “the inequity of allowing a defendant to admit

12

the beneficial part of a statement while using the Confrontation Clause to prevent the State

13

from offering the remainder of the statement in order to avoid misleading the jury.” Id. at

14

914 n.9 (citation omitted). The court thus concluded that Judge Moon “did not err in ruling

15

that if Ellison offered part of Finch’s hearsay statements, the State could question Howe

16

with the remainder of the conversation.” Id. at 913-14.

17
18
19

2.

Analysis

Although Ellison’s briefing regarding Claim 4 is not a model of clarity, the Court
construes that briefing as potentially raising three distinct (if interrelated) challenges.

20

First, Ellison argues that the trial court’s evidentiary ruling prevented him from

21

“admit[ting] Finch’s critical admission that [Finch] killed both victims.” (Doc. 21 at 71.)

22

In his reply, Ellison elaborates that the ruling “violated [his] right to a fundamentally fair

23

trial at which he could present a defense.” (Doc. 38 at 33.) Ellison continues: “The state

24

courts could not reasonably have forced [him] to choose between his right to present a

25

defense and his right, as then currently understood, to confront witnesses against him.” (Id.

26

at 34-35.)

27

premised on the theory that “the trial court’s evidentiary rulings regarding Finch’s

28

statements to Howe prevented him from presenting a complete defense and admitting

Respondents interpret these arguments as raising a “due process” claim

- 34 -

1

relevant evidence.” (Doc. 30 at 51-52.)

2

To the extent Respondents’ conception of Ellison’s claim is correct—that is, to the

3

extent Ellison is raising a Fourteenth Amendment due process claim that is distinct from a

4

Sixth Amendment confrontation claim—that claim is unavailing.13 Although a defendant

5

generally has a due process right to present a complete defense, Chambers v. Mississippi,

6

410 U.S. 284 (1973), “[a] defendant’s right to present relevant evidence is not unlimited,

7

but rather is subject to reasonable restrictions. A defendant’s interest in presenting such

8

evidence may thus bow to accommodate other legitimate interests in the criminal trial

9

process.

As a result, state and federal rulemakers have broad latitude under the

10

Constitution to establish rules excluding evidence from criminal trials.” United States v.

11

Scheffer, 523 U.S. 303, 308 (1998) (cleaned up). See also Moses v. Payne, 555 F.3d 742,

12

757-59 (9th Cir. 2009). “Only rarely” has the Supreme Court “held that the right to present

13

a complete defense was violated by the exclusion of defense evidence under a state rule of

14

evidence.” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (per curiam). This case does not

15

resemble those limited circumstances. Indeed, the trial court did not bar Ellison from

16

introducing Finch’s admissions regarding Finch’s involvement in the murders—it simply

17

held that the introduction of such admissions might open the door to the admission of

18

Finch’s other admissions on the topic (which implicated Ellison), and Ellison in turn

19

decided not to elicit any testimony regarding Finch’s admissions.

20
13

21
22
23
24
25
26
27
28

Ellison raised only a Sixth Amendment challenge in relation to the Finch/Howe
testimony on direct appeal (Opening Brief at 34-38) and the Arizona Supreme Court only
addressed a Sixth Amendment challenge in its decision affirming Ellison’s convictions and
sentences. Ellison, 140 P.3d at 912-14. Thus, it might be argued that Ellison has
procedurally defaulted any Fourteenth Amendment/due process challenge. However,
Respondents have not raised a claim of procedural default as to that particular issue. (Doc.
38 at 32 [“Respondents do not interpose a procedural defense to this claim insofar as it
rests on the Sixth and Fourteenth Amendments.”].) Thus, the Court declines to consider
whether this particular claim is procedurally defaulted. Franklin v. Johnson, 290 F.3d
1223, 1233 (9th Cir. 2002) (“[T]he state provides no explanation whatsoever for its failure
to raise a procedural default argument in the district court . . . . Consequently, we decline
to reach the state’s argument that Franklin did not adequately raise in the state courts the
issue he presented to the district court and argues here as well.”).
- 35 -

1

Ellison’s final two challenges are both premised on the Sixth Amendment’s

2

Confrontation Clause. As explained below, the Arizona Supreme Court’s rejection of

3

Ellison’s Confrontation Clause challenge was not contrary to or an unreasonable

4

application of clearly established federal law, nor was it based on an unreasonable

5

determination of the facts.14

6

Ellison’s first Sixth Amendment challenge is premised on the theory that the trial

7

court’s evidentiary rulings violated Ohio v. Roberts, 448 U.S. 56 (1980), and Williamson

8

v. United States, 512 U.S. 594 (1994). (Doc. 21 at 71-72.) More specifically, Ellison

9

contends that although Finch’s initial statement to Howe at the bar—that Finch had killed

10

two people—was admissible because it was self-inculpatory and accompanied by adequate

11

indicia of reliability, Finch’s subsequent statements to Howe were not reliable—and thus

12

inadmissible under Roberts, which holds that statements lacking “indicia of reliability . . .

13

[cannot be] admitted without violating [a defendant’s] confrontation rights”—because they

14

“shifted blame to Ellison” and were only “collateral to Finch’s inculpatory statements.”

15

(Id.)

16

This argument is unavailing. It is true that, in Williamson, the Supreme Court held

17

that “[t]he fact that a person is making a broadly self-inculpatory confession does not make

18

more credible the confession’s non-self-inculpatory parts.” 512 U.S. at 599. See also

19

United States v. Ebron, 683 F.3d 105, 133 (5th Cir. 2012) (“In Williamson, the Supreme

20
21
22
23
24
25
26
27
28

14

Although the Arizona Supreme Court did not provide the same reasoning for
rejecting Ellison’s Confrontation Clause challenge that is discussed below, this is irrelevant
for purposes of the AEDPA standard of review. Franklin, 290 F.3d at 1233 (“Under
AEDPA, a petition for habeas corpus challenging a state conviction may be granted only
if the state court’s decision is contrary to, or involves an unreasonable application of,
clearly established federal law as determined by the Supreme Court of the United States
. . . . If—as we ultimately conclude was the case here—the state court reached the correct
result with respect to petitioner’s claim of constitutional violation (even if on erroneous
reasoning), that is the end of our inquiry.”) (citation and internal quotation marks omitted);
Sheppard v. Davis, 967 F.3d 458, 467 n.5 (5th Cir. 2020) (“[T]he position . . . held by most
of the courts of appeals . . . [is] that a habeas court must defer to a state court’s ultimate
ruling rather than to its specific reasoning.”) (citations omitted).
- 36 -

1

Court issued a fractured opinion in which it . . . held that ‘the most faithful reading of Rule

2

804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if

3

they are made within a broader narrative that is generally self-inculpatory.’”) (citation

4

omitted).

5

Williamson. There, the reason for the Court’s finding that the declarant’s statements were

6

unreliable and inadmissible was that they were made to DEA agents after the declarant was

7

arrested and in custody. 512 U.S. at 596, 601 (“[A]rrest statements of a co-defendant have

8

traditionally been viewed with special suspicion.”). See also Lilly v. Virginia, 527 U.S.

9

116, 137 (1999) (explaining that guarantees of trustworthiness were “highly unlikely” to

10

exist for accomplice confessions that inculpate a defendant “when the statements are given

11

under conditions that implicate the core concerns of the old ex parte affidavit practice—

12

that is, when the government is involved in the statements’ production . . . .”). Finch’s

13

statements, in contrast, were made to a friend during a private conversation. As the Fifth

14

Circuit explained in Ebron, “[t]his distinction . . . is consequential. Unlike the situation

15

where a declarant implicates himself and the defendant in a statement made to officials, a

16

statement made outside a custodial context does not provide the same set of incentives that

17

create the risk of an unreliable statement.” 683 F.3d at 133-34. Indeed, courts have

18

repeatedly found that statements made to friends and family, in contrast to custodial

19

statements, bear indicia of trustworthiness. See, e.g., United States v. Smalls, 605 F.3d

20

765, 783 (10th Cir. 2010) (“We may safely surmise that from time immemorial, only on

21

the rarest occasion, if ever, has one of sound mind—even one of sound mind who is not

22

particularly honest—falsely confessed a murder to an apparent acquaintance or friend. . . .

23

Cook most certainly was not seeking to curry favor with authorities in recounting the

24

specifics of Gantz’s murder to CI or seeking to shift or spread blame to his alleged co-

25

conspirators so as to engender more favorable treatment from authorities. . . . Cook

26

responded to CI’s questions as though he believed the two were engaged in casual

27

conversation—nothing more. From Cook’s standpoint, this was indeed the case, and that

28

makes all the difference, providing a ‘circumstantial guaranty’ of reliability not found in

However, there are obvious factual differences between this case and

- 37 -

1

statements, arrest, custodial or otherwise, knowingly made to law enforcement officials.”);

2

People v. Cortez, 369 P.3d 521, 540 (Cal. 2016) (“[T]he context in which Bernal made the

3

statements—a conversation with a close family member in an apartment he frequented—

4

does not suggest that Bernal was trying to improve his situation with police . . . [and

5

instead] ‘promoted truthfulness.’”).

6

The substance of Finch’s statements to Howe after admitting that he killed two

7

people also bore indicia of trustworthiness. As Respondents note, while Finch described

8

Ellison’s actions in committing the crimes, he did not deny his own involvement and

9

acknowledged that he killed Mr. Boucher and looked into the victims’ eyes as they died.

10

Given this backdrop, the admission of Finch’s subsequent statements to Howe pursuant to

11

the rule of completeness would not have violated Roberts and Williamson.

12

Ellison’s other Sixth Amendment challenge is premised on the theory that the

13

Arizona Supreme Court’s decision “subvert[ed]” his rights under the Confrontation Clause

14

in violation of Crawford v. Washington, 541 U.S. 36 (2004). (Doc. 21 at 72-73 [“Although

15

application of Crawford would change the analysis, it would not change the result.

16

Crawford precludes testimonial hearsay absent a prior opportunity for cross-examination,

17

irrespective of its reliability.”].) This argument is meritless. Crawford held that the

18

Confrontation Clause prohibits the admission of an out-of-court testimonial statement at a

19

criminal trial unless the witness is unavailable to testify and the defendant had a prior

20

opportunity for cross-examination. 541 U.S. at 59. Although the Court did not provide a

21

definition of “testimonial,” it offered the following “formulations” of the “core class” of

22

testimonial statements: (1) “ex parte in-court testimony or its functional equivalent—that

23

is, material such as affidavits, custodial examinations, prior testimony that the defendant

24

was unable to cross-examine, or similar pretrial statements that declarants would

25

reasonably expect to be used prosecutorially;” (2) “extrajudicial statements . . . contained

26

in formalized testimonial materials, such as affidavits, depositions, prior testimony, or

27

confessions;” and (3) “statements that were made under circumstances which would lead

28

an objective witness reasonably to believe that the statement would be available for use at

- 38 -

1

a later trial.” Id. at 51-52.

2

Finch’s statements to his friend at a bar and on the drive home from the bar do not

3

fall into any of these categories. They were not in-court testimony or its functional

4

equivalent; they were not contained in formalized testimonial materials; and they were not

5

made under circumstances that would lead an objective witness to believe they would be

6

used at a later trial. Crawford, 541 U.S. at 51-52 (“An accuser who makes a formal

7

statement to government officers bears testimony in a sense that a person who makes a

8

casual remark to an acquaintance does not.”).

9

Crawford’s discussion of the nature of testimonial statements focused on the use of

10

statements “made to a government officer with an eye toward trial, the primary abuse at

11

which the Confrontation Clause was directed.” Jensen v. Pliler, 439 F.3d 1086, 1089 (9th

12

Cir. 2006). See also Delgadillo v. Woodford, 527 F.3d 919, 927 (9th Cir. 2008) (“[T]he

13

state court’s implicit conclusion that Ramirez’s remarks to her coworkers did not implicate

14

Delgadillo’s Sixth Amendment rights of confrontation was not contrary to, nor an

15

unreasonable application of Crawford.”); Desai v. Booker, 732 F.3d 628, 630 (6th Cir.

16

2013) (“[After Crawford], the Confrontation Clause no longer applied to nontestimonial

17

hearsay such as the friend-to-friend confession . . . .”); United States v. Brown, 441 F.3d

18

1330, 1360 (11th Cir. 2006) (“[T]he private telephone conversation between mother and

19

son . . . was not testimonial.”); Ramirez v. Dretke, 398 F.3d 691, 695 & n.3 (5th Cir. 2005)

20

(co-defendant’s statement that petitioner had hired him to kill a fireman was not

21

testimonial: “There is nothing in Crawford to suggest that ‘testimonial evidence’ includes

22

spontaneous out-of-court statements made outside any arguably judicial or investigatory

23

context.”). It follows that the challenged evidentiary ruling regarding the admissibility of

24

Finch’s later statements to Howe did not violate Crawford. Whorton v. Bockting, 549 U.S.

25

406, 420 (2007) (noting “Crawford’s elimination of Confrontation Clause protection

26

against the admission of unreliable out-of-court nontestimonial statements”).

27

…

28

…

- 39 -

As the Ninth Circuit has explained,

1

E.

2

In Claim 5, Ellison alleges that the trial court’s evidentiary rulings excluding Finch’s

3

statements to fellow inmate Daymond Hill deprived him of his right to reliable and fair

4

proceedings in violation of the Eighth and Fourteenth Amendments. (Doc. 21 at 73-78.)

5

Ellison argues he presented this claim to the Arizona Supreme Court on direct appeal. (Id.

6

at 73-74.) Respondents contend the claim is procedurally defaulted because Ellison did

7

not fairly present a federal basis for the claim. (Doc. 30 at 55.)

Claim 5

8

Respondents are correct. To properly exhaust state remedies on a claim, a habeas

9

petitioner must “present the state courts with the same claim he urges upon the federal

10

court.” Picard v. Connor, 404 U.S. 270, 276 (1971). A claim is “fairly presented” if the

11

petitioner has described the operative facts and the federal legal theory on which his claim

12

is based in a manner that provides the state courts with a fair opportunity to apply

13

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

14

U.S. at 6. A petitioner has not “fairly presented” (and thus exhausted) a federal claim in

15

state court unless he specifically indicated to that court that the claim was based on federal

16

law. See, e.g., Lyons v. Crawford, 232 F.3d 666, 669-70 (9th Cir. 2000), as amended by

17

247 F.3d 904 (9th Cir. 2001) (“Lyons’s general reference in his state habeas petition to

18

insufficiency of evidence, his ‘right to be tried by an impartial jury,’ ‘ineffective assistance

19

of counsel’ and being ‘shammed’ into waiving a preliminary hearing, lacked the specificity

20

and explicitness required for the purported federal constitutional dimension of such claims

21

to have been ‘fairly presented’ to the Nevada courts under our precedent.”); Shumway v.

22

Payne, 223 F.3d 982, 987-88 (9th Cir. 2000) (“Shumway’s naked reference to ‘due

23

process’ in Issue I was insufficient to state a federal claim. It is not enough to make a

24

general appeal to a constitutional guarantee as broad as due process to present the substance

25

of such a claim to a state court. Therefore, Shumway’s statement of the issue presented

26

did not ‘fairly present’ her federal claim to the Washington Supreme Court.”) (cleaned up);

27

Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“The mere similarity between a

28

claim of state and federal error is insufficient to establish exhaustion.”). A petitioner must

- 40 -

1

make the federal basis of a claim explicit by citing specific provisions of federal statutory

2

or case law, Gatlin, 189 F.3d at 888, or by citing state cases that explicitly analyze the same

3

federal constitutional claim, Peterson, 319 F.3d at 1158.

4

Before the guilt phase of trial, Ellison filed a motion in limine seeking to admit

5

Finch’s statements to Hill. (ROA, Vol. II, Doc. 60.) According to Hill, Finch stated that

6

he was arrested for “a couple of burglaries” and “there was a couple of murders too, that

7

he killed some people.” (RT 2/24/2000 at 20.)15 According to Hill, Finch did not mention

8

an accomplice or a weapon or being under duress. (Id.) According to Hill, Finch used the

9

singular “he” rather than “we” when describing the crimes and “said something about he

10

strangled them or choked them or something.” (Id. at 21-22.)

11

The trial court denied the motion in limine, concluding that under Rule 401 of the

12

Arizona Rules of Evidence, Finch’s statements were not relevant because they did “not

13

have any tendency to make Ellison’s involvement in the crimes more or less probable than

14

it would be without the evidence.” (ROA, Vol. II, Doc. 77 [minute entry dated March 1,

15

2000].)

16

On direct appeal, Ellison argued that “[t]he trial court abused its discretion when it

17

precluded Appellant from presenting the testimony of Daymond Hill that Finch admitted

18

that he had killed both victims.” (Opening Br. at 40.) In support of this argument, Ellison

19

did not mention the Sixth Amendment or the Confrontation Clause—he simply argued that

20

Finch’s statements were relevant under Arizona Rule of Evidence 401 and constituted

21

statements against penal interest under Rule 803(b)(4). (Opening Br. at 40-41.) The

22

Arizona Supreme Court, in turn, determined that the trial court did not abuse its discretion

23

because the statements lacked indicia of trustworthiness as required under Rule 804(b)(3)

24

and were not relevant to Ellison’s guilt under state law. Ellison, 140 P.3d at 914.

25

As noted, Ellison did not allege a violation of his federal constitutional rights. The

26

claim was “devoid of any language presenting a federal” claim. Castillo, 399 F.3d at 1000-

27
Hill’s statements, taken from the transcript of a defense interview on April 19, 1999,
were read into the record during a hearing on the motion in limine. (RT 2/24/00 at 18-19.)
15

28

- 41 -

1

01 (petitioner “focused his argument” on the trial court’s application of Arizona Rule of

2

Evidence 403); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996) (finding that

3

petitioner, who argued in state court that the admission of prior act evidence infringed on

4

his fair trial rights, had not exhausted a federal claim because his argument was based

5

exclusively on state evidentiary law and never apprised the court that he was asserting a

6

federal claim). And because Ellison raised no federal constitutional claim, the Arizona

7

Supreme Court was silent as to any federal issue. Castillo, 399 F.3d at 1002 (“[T]he

8

Arizona Court of Appeals addressed each of the issues Castillo briefed and argued and

9

issued its own reasoned state judgment. It rejected on state law grounds Castillo’s

10

argument concerning the admission of his videotaped interrogation.”).

11

Sandgathe v. Maas, 314 F.3d 371, 376–77 (9th Cir. 2002) (federal question is raised where

12

state court considered and decided the issue even if petitioner did not frame his claim in

13

terms of any federal right).

Compare

14

Ellison notes that his opening brief cited State v. LaGrand, 734 P.3d 563 (Ariz.

15

1987), which he argues was sufficient to fairly present his federal due process claim. (Doc.

16

38 at 36.) Although it is true that LaGrand addressed a constitutional challenge to the

17

exclusion of a confession, Ellison himself never raised such a challenge, nor did he cite the

18

United States Supreme Court case on which the appellant in LaGrand relief.16 Instead, and

19

consistent with the argument in his opening brief, he specifically cited LaGrand’s lengthy

20

discussion of Rule 804(b)(3). (Opening Br. at 41.) Although “a citation to a state case

21

analyzing a federal constitutional issue serves the same purpose as a citation to a federal

22

case analyzing such an issue,” Peterson, 319 F.3d at 1158, “[f]or a federal issue to be

23

presented by the citation of a state decision dealing with both state and federal issues

24

relevant to the claim, the citation must be accompanied by some clear indication that the

25

case involves federal issues,” Casey, 386 F.3d at 912 n.13. “Where . . . the citation to the

26

state case has no signal in the text of the brief that the petitioner raises federal claims or

27

relies on state law cases that resolve federal issues, the federal claim is not fairly

28

16

Chambers v. Mississippi, 410 U.S. 284 (1973).
- 42 -

1

presented.” Casey, 386 F.3d at 912 n.13. As the Ninth Circuit later explained, “Casey

2

refused to recognize any such ‘signal’ where the relevant brief never used the word

3

‘federal’; did not refer expressly to the federal constitution or to any of its provisions; and

4

did not indicate in parentheticals or elsewhere whether the state cases the brief did cite

5

discussed the federal constitution.’” Arrendondo v. Neven, 763 F.3d 1122, 1138 (9th Cir.

6

2014) (cleaned up). Ellison’s citation to LaGrand contained none of these indications or

7

signals that he was raising a federal claim. Thus, Ellison did not “present the state courts

8

with the same claim he urges upon the federal court.” Picard, 404 U.S. at 276. And

9

because the federal claim was not fairly presented in state court, it is procedurally defaulted

10

and Ellison is precluded from presenting it to the state courts in a successive post-

11

conviction proceeding. See Ariz. R. Crim. P. 32.1(b)-(h), 32.2(a) & (b).

12

Ellison contends that Rule 32.2(a)(3) does not apply to claims that “affected a right

13

of constitutional magnitude” if the petitioner did not personally waive the claim. (Doc. 38

14

at 36-37.) But Claim 5 does not fall within the limited framework of claims requiring a

15

knowing, voluntary, and intelligent waiver before a finding of preclusion. See Ariz. Rule

16

Crim. Proc. 32.2(a)(3) cmt. (West 2004) (explaining that most claims of trial error do not

17

require a personal waiver); Stewart v. Smith, 46 P.3d 1067, 1070 (Ariz. 2002) (identifying

18

the right to counsel, right to a jury trial, and right to a 12-person jury under the Arizona

19

Constitution as the type of claims that require personal waiver); State v. Swoopes, 166 P.3d

20

945, 954 (Ariz. Ct. App. 2007) (“An alleged violation of the general due process right of

21

every defendant to a fair trial, without more, does not save that belated claim from

22

preclusion.”).

23

Finally, Ellison argues that the claim’s default is excused by the ineffective

24

assistance of appellate and PCR counsel. (Doc. 38 at 37-38.) He is incorrect. First,

25

ineffective assistance of appellate counsel may be used as cause to excuse a procedural

26

default only where the particular ineffective-assistance allegation was first exhausted in

27

state court as an independent constitutional claim. Edwards v. Carpenter, 529 U.S. 446,

28

453 (2000); Murray v. Carrier, 477 U.S. 478, 489-90 (1986). Ellison did not raise such a

- 43 -

1

claim of ineffective assistance of appellate counsel.

2

ineffective assistance of PCR counsel can only excuse the default of claims of ineffective

3

assistance of trial counsel. Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013)

4

(“While Hunton agrees, as he must, that he did procedurally default on his Brady claim, he

5

asserts that he may still pursue it because he was deprived of counsel at his [PCR]

6

proceeding. However, that pursuit is blocked by a barrier that the Supreme Court clearly

7

recognized . . . [when it] declared that the petitioner’s assertion that a claim had been

8

defaulted at his [PCR] proceeding due to ineffective assistance of counsel at that

9

proceeding must fail . . . . In [Martinez], the Court did create one exception . . . where

10

ineffective assistance of counsel in a [PCR] proceeding results in a failure to assert that

11

there was ineffective assistance of counsel in the trial proceedings, the claim would be

12

cognizable. But . . . [t]he Court made it plain that the exception extended no further.”)

13

(citations omitted); Martinez, 926 F.3d at 1225 (“[I]neffective assistance of PCR counsel

14

can constitute cause only to overcome procedurally defaulted claims of ineffective

15

assistance of trial counsel.”); Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015).

16

For these reasons, Claim 5 is defaulted and barred from federal review.

17

F.

18

In Claim 6, Ellison alleges that the admission of false testimony from Vivian Brown

19

deprived him of his right to reliable, fair, and nonarbitrary proceedings, in violation of the

20

Eighth and Fourteenth Amendments. (Doc. 21 at 78-80.) Ellison argues he presented this

21

claim to the Arizona Supreme Court on direct appeal. (Id.) Respondents contend the claim

22

is procedurally defaulted because Ellison did not fairly present a federal basis for the claim.

23

(Doc. 30 at 58-59.)

Second, under Martinez, the

Claim 6

24

Respondents have the better of this argument. On direct appeal, Ellison raised a

25

claim that the trial court abused its discretion by limiting his cross-examination of Vivian

26

Brown, the victims’ daughter, who testified that she saw Ellison working at a house two

27

doors down from her parents’ home in July or August 1998. (Opening Br. at 42-43.)

28

Ellison argued that he was entitled under Rule 608(b) of the Arizona Rules of Evidence to

- 44 -

1

challenge Brown’s credibility on cross-examination with records showing that he had been

2

in custody at the time Brown claimed to have seen him. (Id.) The Arizona Supreme Court

3

determined that the trial court did not abuse its discretion because the custody records were

4

not evidence of the witness’s conduct (as required for admissibility under Rule 608(b)) and

5

because they constituted hearsay and Ellison did not try to admit them under a hearsay

6

exception. Ellison, 140 P.3d at 914-15.

7

Ellison did not expressly allege a violation of his federal constitutional rights in his

8

opening brief to the Arizona Supreme Court—he cited only Arizona cases and Arizona

9

rules of evidence in support of his claim that the trial court had committed an abuse of

10

discretion. (Opening Br. at 42-43.) Notwithstanding this, Ellison now contends that the

11

Arizona cases he cited were sufficient to fairly present a federal claim. That argument is

12

unavailing. Although one of Ellison’s cited cases, State v. Salazar, 898 P.2d 982, 987-88

13

(Ariz. Ct. App. 1995), agreed with the defendant’s contention that the trial court had abused

14

its discretion in applying Arizona’s rules of evidence and also proceeded to find that the

15

trial court’s limitations on cross-examination violated the defendant’s confrontation rights

16

under the Sixth Amendment, Ellison’s opening brief gave no indication that his claim

17

concerned federal issues. Thus, his citation to Salazar was insufficient to fairly present a

18

federal claim. Casey, 386 F.3d at 911-12; Arrendondo, 763 F.3d at 1138. See also

19

Peterson, 319 F.3d at 1158-59 (“In his petition for review to the Oregon Supreme Court,

20

Peterson cited two Oregon cases to support his right to counsel claim.

21

[Krummacher and Chew] analyzed right to counsel claims under the Sixth and Fourteenth

22

Amendments to the United States Constitution and under Article I, Section 11, of the

23

Oregon Constitution. But Peterson, who was represented by counsel, did not simply claim

24

in his petition that he had been denied his constitutionally guaranteed right to counsel and

25

then cite the two Oregon cases. Instead, he specified that he had been denied ‘adequate’

26

assistance of counsel under the Oregon Constitution and cited the two cases. Since the

27

citation to Krummacher and Chew was preceded by an explicit reference to the usual term

28

referring to the state version of the constitutional right, as well as by an explicit reference

- 45 -

Both cases

1

to the Oregon Constitution, a fair reading of Peterson’s counseled petition was that the

2

cases were cited only to support a state-law claim.”) (citations omitted).

3

For the reasons discussed in relation to Claim 5, Claim 6 is procedurally defaulted

4

and the default is not excused by the performance of appellate or PCR counsel. Carpenter,

5

529 U.S. at 453; Martinez, 926 F.3d at 1225. Claim 6 is thus denied as procedurally

6

defaulted and barred from federal review.

7

G.

8

In Claim 7, Ellison alleges that the prosecution violated his rights under the Sixth

9

and Fourteenth Amendments by introducing inadmissible hearsay. (Doc. 21 at 80-84.) The

10

evidence at issue is testimony from Detective Watson about Finch’s physical reaction

11

during his custodial interrogation when he began discussing Ellison. (Id. at 81.)

Claim 7

12

Ellison argues that he fairly presented this claim to the Arizona Supreme Court. The

13

Court agrees. In his opening brief, Ellison claimed that the evidence was “inadmissible

14

hearsay admitted in violation of the Sixth and Fourteenth Amendments.” (Opening Br. at

15

43.) He then argued that the evidence was “admitted in violation of the Confrontation

16

Clause.” (Id. at 42-43.) The Arizona Supreme Court characterized Ellison’s claim as

17

arguing that Watson’s testimony was “inadmissible hearsay that violated the Confrontation

18

Clause.” Ellison, 140 P.3d at 915. Under these circumstances, the claim is exhausted. See

19

Gatlin, 189 F.3d at 888; Sandgathe, 314 F.3d at 376-77.

20

Nevertheless, the claim is meritless. During the guilt phase of trial, the prosecution

21

sought to elicit testimony from Detective Watson about Finch’s body language during his

22

interrogation when they spoke about “Slinger”/Ellison. (RT 1/15/02 at 156-57 [“Without

23

telling us anything he said, what was his body language and what was he acting like?”].)

24

The defense immediately objected and the trial court sustained the objection, ruling that

25

Detective Watson could not speculate about the cause of Finch’s reaction. (Id. at 157-59.)

26

However, the court permitted the prosecution to ask the Detective Watson whether there

27

was “any difference in [Finch’s] demeanor and his body language when he was discussing

28

Slinger and the particular subject of Slinger as opposed to answering any of your other

- 46 -

1

questions about his involvement in the crimes.” (Id. at 159-60.) In response to that

2

question, Detective Watson answered: “Yes. His [Finch’s] hands would shake. His voice

3

broke a couple of times. And at one point during the interview it appeared like his eyes

4

were starting to well up like he was going to have tears.” (Id. at 160.)

5

In denying this claim on appeal, the Arizona Supreme Court found that the

6

admission of Detective Watson’s testimony was not fundamental error because Finch’s

7

nonverbal conduct “[did] not appear intended as an assertion” and therefore was not

8

hearsay under Rule 801 of the Arizona Rules of Evidence. Ellison, 140 P.3d at 915. Ellison

9

now alleges that this ruling was contrary to and involved an unreasonable application of

10

Bruton v. United States, 391 U.S. 123 (1968), and Crawford. (Doc. 21 at 82-84.)

11

As already noted, the Confrontation Clause prohibits the admission of testimonial

12

hearsay at a criminal trial unless the witness is unavailable to testify and the defendant had

13

a prior opportunity for cross-examination. Crawford, 541 U.S. at 59. Like Crawford,

14

Bruton, which limits the introduction of a co-defendant’s out-of-court statement, concerns

15

only testimonial hearsay. Lucero v. Holland, 902 F.3d 979, 987-88 (9th Cir. 2018) (“[T]he

16

Bruton limitation on the introduction of codefendants’ out-of-court statements is

17

necessarily subject to Crawford’s holding that the Confrontation Clause is concerned only

18

with testimonial out-of-court statements.”); Tennessee v. Street, 471 U.S. 409, 414 (1985)

19

(“The nonhearsay aspect of [accomplice] Peele’s confession . . . raises no Confrontation

20

Clause concerns.”); United States v. Dargan, 738 F.3d 643, 651 (4th Cir. 2013) (“Bruton

21

is simply irrelevant in the context of nontestimonial statements.”).

22

The Supreme Court has not ruled on when nonverbal conduct constitutes hearsay

23

under Crawford. United States v. Ibarra-Diaz, 805 F.3d 908, 923 n.7 (10th Cir. 2015).

24

However, lower courts considering the issue have applied the definition set forth in Rule

25

801(a) of the Federal Rules of Evidence, under which nonverbal conduct cannot be hearsay

26

unless it constitutes a statement, meaning that the declarant “intended it as an assertion.”

27

See, e.g., United States v. Taylor, 688 F. App’x 638, 642 (11th Cir. 2017); United States v.

28

Marshall, 259 F. App’x 855, 860-61 (7th Cir. 2008). Rule 801(a) places the burden on the

- 47 -

1

party claiming there was an intention to make an assertion. United States v. Kool, 552 F.

2

App’x 832, 834 (10th Cir. 2014); see also Fed. R. Evid. 801, advisory committee note to

3

1972 proposed rules (“The rule is so worded as to place the burden upon the party claiming

4

that the intention existed; ambiguous and doubtful cases will be resolved against him and

5

in favor of admissibility”).

6

Ellison has not met his burden of showing that Finch’s nonverbal conduct was

7

intended as an assertion. The “nonverbal emotional reactions” described by Detective

8

Watson do not qualify as an assertion. United States v. Campbell, 507 F. App’x 150, 154

9

(3d Cir. 2012) (“The court allowed Walter to testify that when William Campbell heard

10

the news about his son, he was angry and in shock. Campbell acknowledges that nonverbal

11

conduct is only hearsay if it is intended as an assertion, but claims that requirement is met

12

here. . . . Contrary to Campbell’s assertion, the Rules of Evidence and our case law make

13

clear that testimony concerning a person’ s nonverbal emotional reaction does not qualify

14

as an assertion.”). In United States v. Kiel, 658 F. App’x 701 (5th Cir. 2016), the district

15

court allowed an investigator to testify that a friend of one of the defendants, when shown

16

surveillance footage of a bank robbery, “fell back into her chair and put her hand over her

17

mouth and started crying.” Id. at 710. The Fifth Circuit held that the court did not plainly

18

err in admitting the testimony:

19
20
21
22
23
24

Sims’s reaction to the video . . . is not hearsay because it was not intended as
an assertion. In other words, although a jury might infer from Sims’s visceral
reaction that she knew the individual in the surveillance footage, it does not
follow that she intended to identify the individual in the footage.
Furthermore, Marshall has not provided any authority that such non-assertive
actions constitute “testimony” and therefore invoke the protections of the
Confrontation Clause.
Id. (citations omitted).

25

Finch’s nonverbal behavior—shaking hands, breaking voice, and tears welling in

26

his eyes—is indistinguishable from the nonverbal emotional reactions addressed in

27

Campbell and Kiel. As the Arizona Supreme Court correctly found, the behavior was not

28

intended as an assertion and therefore was not hearsay. At a minimum, that determination

- 48 -

1

was not contrary to, or an unreasonable application of, clearly established federal law and

2

was not based on an unreasonable determination of the facts in light of the evidence

3

presented in state court.

4

H.

5

In Claim 8, Ellison alleges that his rights under the Eighth and Fourteenth

6

Amendments were violated when the trial court admitted evidence of a handgun linked to

7

him which was found in a car parked in the garage of his girlfriend. (Doc. 21 at 84-87.)

8

Respondents contend this claim is procedurally defaulted. (Doc. 30 at 65-66.)

Claim 8

9

Respondents are correct. On direct appeal, Ellison alleged only that the trial court

10

abused its discretion by admitting the evidence, which he argued was a violation of Arizona

11

Rule of Evidence 403. (Opening Br. at 44.) He did not allege a violation of the federal

12

constitution or cite any cases analyzing a federal issue. (Id.) The Arizona Supreme Court

13

denied the claim, finding that the trial court did not abuse its discretion because the

14

“evidence establishes that Ellison possessed a gun before and after the crime, and combined

15

with other evidence that Finch did not possess a gun, makes less likely Ellison’s story that

16

he participated only because Finch threatened him with a gun.” Ellison, 140 P.3d at 915-

17

16. The court did not consider any claim of a violation of Ellison’s federal constitutional

18

rights. Id.

19

Ellison did not exhaust a federal claim in state court. For the reasons discussed

20

above, the procedural default of the claim is not excused by the performance of appellate

21

or PCR counsel. Carpenter, 529 U.S. at 453; Martinez, 926 F.3d at 1225. Thus, Claim 8

22

is denied as procedurally defaulted and barred from federal review.

23

I.

Claim 9

24

In Claim 9, Ellison alleges that the trial court improperly admitted a hearsay

25

statement by Finch implicating Ellison in the crime, in violation of the Sixth, Eighth, and

26

Fourteenth Amendments. (Doc. 21 at 87-90.) On direct appeal, the Arizona Supreme

27

Court denied Ellison’s claim that the admission of the statement violated his Sixth

28

- 49 -

1

Amendment confrontation rights. Ellison, 140 P.3d at 916.17

2

At issue is testimony by Detective Auld who, when asked by the prosecutor what

3

he was looking for when that he searched the home of Ellison’s girlfriend, replied: “Any

4

evidence associated with the crime, some of the property that was taken, the phone cords,

5

the tape, the gun that was described to us by Mr. Finch.” (RT 1/16/02 at 170, emphasis

6

added.) Defense counsel did not raise an immediate objection to the testimony and

7

ultimately the parties agreed that it would not be stricken so as to avoid drawing the jury’s

8

attention to it. (Id. at 210-13.) The prosecutor also agreed not to use the statement in his

9

closing argument. (Id. at 212.)

10

On direct appeal, Ellison argued that the testimony about Finch’s statement violated

11

the Sixth Amendment and that the trial court should have sua sponte ordered a mistrial.

12

(Opening Br. at 45-46.)

13

fundamental error:

14

Detective Auld’s reference was brief and the State did not use this statement
in closing. Additionally, the jurors did not hear any specific evidence or
argument regarding Finch’s duress claim and likely were not even aware that
Finch claimed Ellison pointed a gun at him. As the State points out, the jury
might have thought that Auld’s reference concerned one of the guns taken
from the Bouchers’ house.

15
16
17
18
19

Ellison, 140 P.3d at 916.
Ellison alleges that the ruling was contrary to and involved an unreasonable

20
21
22
23
24

application of Crawford and Bruton and was based on an unreasonable determination of
the facts. Respondents counter that Crawford and Bruton, which apply only to hearsay
statements, are inapplicable to Detective Auld’s testimony. (Doc. 30 at 70.) The Court
agrees.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

25
26
27
28

The Arizona Supreme Court denied the claim, finding no

See, e.g., Fed. R. Evid. 801(c). “Crawford applies only to testimonial hearsay, and does
17

Respondents acknowledge that Ellison raised a Sixth Amendment claim on direct
appeal but contend that any Eighth Amendment claim is procedurally defaulted. (Doc. 30
at 68.)
- 50 -

1

not bar the use of testimonial statements for purposes other than establishing the truth of

2

the matter asserted.” United States v. Wahchumwah, 710 F.3d 862, 871 (9th Cir. 2013)

3

(citation omitted). For example, “[a]n out-of-court statement used to explain why police

4

took a certain action in their investigation is not hearsay.” United States v. Velazquez-

5

Rivera, 366 F.3d 661, 666 (8th Cir. 2004). See also United States v. Taylor, 569 F.3d 742,

6

749 (7th Cir. 2009) (“We have recognized repeatedly that statements offered to establish

7

the course of the investigation, rather than to prove the truth of the matter asserted, are

8

nonhearsay and therefore admissible.”) (cleaned up). See generally United States v.

9

Johnson, 875 F.3d 1265, 1278-79 (9th Cir. 2017) (acknowledging this rule while noting

10

that “[c]ourts must exercise caution to ensure that out-of-court testimonial statements,

11

ostensibly offered to explain the course of a police investigation, are not used as an end-

12

run around Crawford and hearsay rules, particularly when those statements directly

13

inculpate the defendant”).

14

Detective Auld’s testimony that officers were looking for items associated with the

15

crime, including “the gun that was described to us by Mr. Finch,” was not offered to prove

16

the truth of any assertion. Rather, it was offered in the context of Auld’s explanation of

17

the officers’ actions in carrying out the search. Taylor, 569 F.3d at 749 (“The government

18

offered [non-testifying declarant’s] statement in the context of the officers’ testimony to

19

explain the course of law enforcement’s investigation, not as evidence that Taylor

20

possessed the gun.”).

21

Alternatively, even assuming the testimony was hearsay and therefore was admitted

22

in violation of Crawford, Ellison would not be entitled to relief. Confrontation Clause

23

errors are subject to harmless error analysis. Coy v. Iowa, 487 U.S. 1012, 1021-22 (1988);

24

Woods v. Sinclair, 764 F.3d 1109, 1125 (9th Cir. 2014); Ocampo v. Vail, 649 F.3d 1098,

25

1114 (9th Cir. 2011). Under that standard, a federal court may not grant habeas relief for

26

a Confrontation Clause error unless the error had a “substantial and injurious effect or

27

influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993); see also

28

Brown v. Davenport, 596 U.S. 118, 122 (2022) (“When a state court has ruled on the merits

- 51 -

1
2
3
4
5
6

of a state prisoner’s claim, a federal court cannot grant relief without first applying both
the test this Court outlined in Brecht and the one Congress prescribed in AEDPA.”).
Any error here did not affect the verdict. As the Arizona Supreme Court noted, the
statement at issue was brief, ambiguous, and isolated. Ellison, 140 P.3d at 916. The
prosecutor did not use the statement in his closing argument or elsewhere in the case against
Ellison. Compare United States v. Silva, 380 F.3d 1018, 1021 (7th Cir. 2004) (Crawford

7

error not harmless where prosecutor “explicitly used some of the hearsay as evidence of

8

Silva’s guilt” and court denied defendant’s objections and failed to give curative

9
10
11
12
13

instruction).
J.

Claim 10

In Claim 10, Ellison alleges that the cumulative effect of the trial court’s guilt-phase
evidentiary errors violated his right to due process under the Eighth and Fourteenth
Amendments. (Doc. 21 at 90-92.) On direct appeal, the Arizona Supreme Court denied

14

Ellison’s claim of cumulative error, explaining that the court “usually does not subscribe

15

to the cumulative error doctrine” and that none of the alleged errors “independently

16

prove[d] prejudice.” Ellison, 140 P.3d at 916.

17
18
19
20
21
22

The parties disagree on the claim’s procedural status. Because the claim is plainly
meritless, the Court need not address this issue. Lambrix v. Singletary, 520 U.S. 518, 52425 (1997) (courts may bypass the procedural default issue in the interest of judicial
economy when the merits are clear but the procedural default issues are not).
The United States Supreme Court has not specifically recognized the doctrine of
cumulative error as an independent basis for habeas relief. Lorraine v. Coyle, 291 F.3d

23

416, 447 (6th Cir. 2002) (“The Supreme Court has not held that distinct constitutional

24

claims can be cumulated to grant habeas relief.”), corrected on rh’g, 307 F.3d 459 (6th Cir.

25

2002); cf. Morris v. Sec’y Dep’t of Corr., 677 F.3d 1117, 1132 n.3 (11th Cir. 2012) (“We

26
27
28

need not determine today whether, under the current state of Supreme Court precedent,
cumulative error claims reviewed through the lens of AEDPA can ever succeed in showing
that the state court’s decision on the merits was contrary to or an unreasonable application
- 52 -

1

of clearly established law.”). But see Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007)

2

(“Under traditional due process principles, cumulative error warrants habeas relief only

3

where the errors have so infected the trial with unfairness as to make the resulting

4

conviction a denial of due process.”) (citation omitted). At any rate, the Court has not

5

identified any constitutional errors arising from the trial court’s guilt-phase evidentiary

6

rulings. Therefore, “is enough to say that [Ellison’s] cumulative error claim clearly fails

7

in light of the absence of any individual errors to accumulate.” Morris, 677 F.3d at 1132

8

n.3. See also McGill v. Shinn, 16 F.4th 666, 685 (9th Cir. 2021) (“If there are no errors,

9

there is no need to consider their cumulative effect.”). At a minimum, the Arizona Supreme

10

Court’s denial of this claim was not contrary to or an unreasonable application of clearly

11

established federal law.

12

K.

13

In Claim 11, Ellison alleges that the reasonable-doubt instruction impermissibly

14

lowered the State’s burden of proof in violation of the Sixth and Fourteenth Amendments.

15

(Doc. 21 at 92-93.) The Arizona Supreme Court’s rejection of this claim, Ellison, 140 P.3d

16

at 916, was neither contrary to nor an unreasonable application of clearly established

17

federal law.

Claim 11

18

During both the guilt and sentencing phases of trial, the trial court defined proof

19

beyond a reasonable doubt as “proof that leaves you firmly convinced of” “a defendant’s

20

guilt,” “the fact in dispute,” and “the aggravating circumstance.” (RT 1/15/02 at 15; RT

21

1/18/02 at 13; RT 2/6/04 at 49; RT 2/9/04 at 102.) Relying on an opinion from an

22

intermediate appellate court of Hawaii, Ellison argues that the phrase “firmly convinced”

23

“reduced the State’s burden of proof to something less than reasonable doubt; it is akin to

24

‘clear and convincing.’” (Doc. 21 at 93.)

25

This argument is unavailing.

“The beyond a reasonable doubt standard is a

26

requirement of due process, but the Constitution neither prohibits trial courts from defining

27

reasonable doubt nor requires them to do so as a matter of course.” Victor v. Nebraska,

28

511 U.S. 1, 5 (1994). As long as the jury is instructed that the defendant must be found

- 53 -

1

guilty beyond a reasonable doubt, “the Constitution does not require that any particular

2

form of words be used in advising the jury of the government’s burden of proof. Rather,

3

taken as a whole, the instructions must correctly convey the concept of reasonable doubt

4

to the jury.” Id. (cleaned up).

5

The instruction provided in Ellison’s case was based on the pattern instruction

6

adopted by the Federal Judicial Center. State v. Van Adams, 984 P.2d 16, 25-26 (Ariz.

7

1999). Ellison cites no controlling authority holding that the instruction impermissibly

8

lowers the burden of proof, and, in Victor, Justice Ginsburg praised the instruction as

9

“clear, straightforward, and accurate.” 511 U.S. at 26 (Ginsburg, J., concurring). The

10

Ninth Circuit has upheld identical or substantially similar instructions. See, e.g., United

11

States v. Artero, 121 F.3d 1256, 1257-59 (9th Cir. 1997); United States v. Velasquez, 980

12

F.2d 1275, 1278 (9th Cir. 1992) (“Considering the instruction given as a whole, the use of

13

the ‘firmly convinced’ language did not indicate to the jury that the prosecutor had a lesser

14

burden than that implied by the use of the term ‘reasonable doubt’ standing alone.”).

15

L.

16

In Claim 12, Ellison alleges that the trial court erroneously denied his motion for

17

judgment of acquittal despite insufficient evidence of premeditated murder, in violation of

18

the Sixth, Eighth, and Fourteenth Amendments. (Doc. 21 at 93-97.)

Claim 12

19

As background, at the close of the State’s guilt-phase case, Ellison moved for a

20

directed verdict that he was not death-eligible. (RT 1/17/2002 at 47-49.) He argued that

21

the evidence did not support a finding that he killed or intended to kill either victim or that

22

he acted with recklessness sufficient to satisfy the Enmund/Tison criteria for felony murder.

23

(Id.)18 Judge Moon denied the motion, concluding that circumstantial evidence supported

24

a finding either that Ellison committed premeditated murder or was guilty of felony murder

25

and satisfied the Enmund/Tison requirements. (Id. at 52-54.) The jury then found Ellison

26

18

27
28

Under Tison v. Arizona, 481 U.S. 137 (1987), and Enmund v. Florida, 458 U.S. 782
(1982), a defendant convicted of felony murder can be sentenced to death only if he actually
killed, attempted to kill, or intended to kill, or if he was a major participant in the underlying
felony and acted with reckless indifference to human life.
- 54 -

1

guilty of both premeditated and felony murder. It also made specific findings that the

2

Enmund/Tison factors were satisfied.

3

On direct appeal, the Arizona Supreme Court rejected Ellison’s argument that the

4

trial court erred in denying his motion for acquittal. Ellison, 140 P.3d at 917-18. With

5

respect to premeditated murder, the court first recited the statutory definition of the offense,

6

stating that a person commits premeditated murder if “[i]ntending or knowing that the

7

person’s conduct will cause death, such person causes the death of another with

8

premeditation.” Id. at 917 (quoting A.R.S. § 13-1105(A)(1)). The court then explained

9

that to establish premeditation, “the state must prove that the defendant acted with either

10

the intent or knowledge that he would kill his victim and that such intent or knowledge

11

preceded the killing by a length of time permitting reflection.” Id. (quotation omitted).

12

The court further explained that a defendant may be liable as an accomplice “only for those

13

offenses the defendant intended to aid or aided another in planning or committing.” Id.

14

(quoting State v. Phillips, 46 P.3d 1048 (Ariz. 2002)). As part of that discussion, the court

15

rejected Ellison’s argument that “duress should be a defense to accomplice liability,

16

because a person acting under duress does not have the specific intent to aid or assist a

17

premeditated murder.” Id. The court observed that “Ellison confuses the distinct concepts

18

of motive and intent” and then elaborated:

19
20
21
22
23
24
25
26
27
28

Just as we have refused to recognize duress as a defense to felony murder
even when the defendant did not physically kill the victim, we now decline
to recognize duress as a defense to accomplice liability for murder. Phillips
does not require a contrary rule. The focus, rather, is on whether the facts
show Ellison’s specific intent to aid or assist Finch in the murders apart from
his intent to assist Finch in committing burglary. If a defendant has the
specific intent to assist in murder, even though his sole motivation is duress,
Phillips is satisfied.
A reasonable fact-finder could have inferred that Ellison intentionally aided
or assisted Finch in killing the Bouchers, or even killed Mr. Boucher himself.
The evidence indicated that Ellison knew the victims, planned the night-time
invasion of their home, and did not attempt to conceal his identity from them.
Ellison supplied the gloves he and Finch used in committing the crimes and
led Finch to the scene. As the State notes, the manner in which Ellison and
Finch killed the Bouchers also shows premeditation. They bound them,
- 55 -

1
2
3
4
5
6

making them helpless to stop the robbery, but still suffocated them. The
medical examiner testified that suffocation takes several minutes to
complete. The medical examiner also testified that the victims had defensive
wounds on their bodies. Ellison’s argument under Phillips fails.
Id. (citation omitted).
This decision was neither contrary to nor an unreasonable application of clearly
established federal law, nor was it based on an unreasonable factual determination.

7

First, the Court rejects Ellison’s argument that the Arizona Supreme Court’s “failure

8

to follow Phillips in finding accomplice liability for premeditated murder” represents a

9

violation of federal due process. (Doc. 21 at 97.) The United States Supreme Court has

10

“repeatedly held that a state court’s interpretation of state law, including one announced on

11

direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”

12

Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

13

Next, the United States Supreme Court has “made clear that [insufficient-evidence]

14

claims face a high bar in federal habeas proceedings because they are subject to two layers

15

of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). The

16

first layer is the standard of review for insufficient evidence claims, which is “whether,

17

after viewing the evidence in the light most favorable to the prosecution, any rational trier

18

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

19

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under this standard, “it is the responsibility

20

of the jury—not the court—to decide what conclusions should be drawn from evidence

21

admitted at trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). Consequently, “[a]

22

reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only

23

if no rational trier of fact could have agreed with the jury.” Id. See also Johnson, 566 U.S.

24

at 656 (“[T]he only question under Jackson is whether [the jury’s] finding was so

25

insupportable as to fall below the threshold of bare rationality.”).

26

The Jackson standard “gives full play to the responsibility of the trier of fact fairly

27

to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

28

inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. A reviewing court

- 56 -

1

“faced with a record of historical facts that supports conflicting inferences must presume—

2

even if it does not affirmatively appear in the record—that the trier of fact resolved any

3

such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326.

4

“A jury’s credibility determinations receive near-total deference under Jackson.” Bruce v.

5

Terhune, 376 F.3d 950, 957 (9th Cir. 2004); see also Schlup v. Delo, 513 U.S. 298, 330

6

(1995) (“[U]nder Jackson, the assessment of the credibility of witnesses is generally

7

beyond the scope of review.”).

8
9

Layered on top of the Jackson standard is the “additional layer of deference”
required by AEDPA.

This requires a petitioner to establish that the state court

10

unreasonably applied Jackson to the facts of the case. Emery v. Clark, 604 F.3d 1102,

11

1111 n.7 (9th Cir. 2010); Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005).

12

Therefore, “a federal court may not overturn a state court decision rejecting a sufficiency

13

of the evidence challenge simply because the federal court disagrees with the state court.

14

The federal court instead may do so only if the state court decision was ‘objectively

15

unreasonable.’” Cavazos, 565 U.S. at 2 (citation omitted).

16

Applying these layers of deference, Ellison is not entitled to relief. First, under

17

Jackson, a reasonable trier of fact, viewing the evidence in the light most favorable to the

18

prosecution, could conclude that Ellison intentionally aided or assisted in the murder of the

19

Bouchers. The trial evidence showed that Ellison, who unlike Finch was familiar with

20

Kingman, the Bouchers’ neighborhood, and the Bouchers themselves, planned the burglary

21

and led Finch to the house. Ellison did not attempt to conceal his identity even though the

22

Bouchers knew him, supplied the gloves used in the burglary, and had access to a handgun.

23

Ellison and Finch bound the victims, and Ellison suffocated and may have killed Mr.

24

Boucher. The suffocation itself would have taken several minutes. The evidence also

25

showed that Finch was “simple,” was unable to handle money, didn’t own a gun, didn’t

26

own a car, and had never been to Kingman. (RT 1/17/02 64-68, 76.)

27

At any rate, when viewed with the additional deference required by AEDPA, the

28

Arizona Supreme Court’s rejection of the claim was not “objectively unreasonable.”

- 57 -

1

Cavazos, 565 U.S. at 2.

2

M.

3

In Claim 52, Ellison alleges that the State “violated its duty to disclose information

4

about its witnesses, knowingly presented false evidence, and/or failed to correct false

5

evidence, in violation of the Fourteenth Amendment.” (Doc. 21 at 308-18.) More

6

specifically, Ellison asserts that the prosecution violated Napue v. Illinois, 360 U.S. 264

7

(1959), by (1) presenting false testimony from Detectives Watson and Auld; and (2)

8

presenting false testimony from Vivian Brown. (Id.)19

9

Claim 52

1.

Detectives Watson And Auld

10

Before turning to the specifics of Ellison’s first Napue claim, it is helpful to provide

11

some context. As discussed in relation to Claim One, Ellison raised a pretrial Miranda

12

challenge to the admissibility of his confession. During the ensuing suppression hearing,

13

one of the key disputed issues was whether Ellison had made an unambiguous request for

14

an attorney at the outset of his interrogation. Ellison testified that he had, in fact, made

15

such a request. Detective Watson, in contrast, testified that (1) during the initial portion of

16

the interrogation, which Detective Watson had attempted to surreptitiously record using a

17

hidden tape recorder, Ellison stated “I think I might want a lawyer”; (2) after this portion

18

of the interrogation was over, Detective Watson realized that the cassette in the tape

19

recorder was blank; (3) Detective Watson then returned to the jail in an attempt to get “the

20

highlights of the interview clarified on tape”;20 (4) during this re-interview, which was

21
22
23
24
25
26
27
28

In Napue, the Supreme Court held that “a conviction obtained through use of false
evidence, known to be such by representatives of the State, must fall under the Fourteenth
Amendment.” 360 U.S. at 269. “A claim under Napue will succeed when ‘(1) the
testimony (or evidence) was actually false, (2) the prosecution knew or should have known
that the testimony was actually false, and (3) the false testimony was material.’” Sivak,
658 F.3d at 908-09 (quoting Jackson v. Brown, 513 F.3d 1057, 1071-72 (9th Cir. 2008)).
19

Detective Watson further testified that he was “very upset” when he realized that
the first session hadn’t been recorded and that “[t]he truth of the matter is . . . I wanted it
clear on tape that I Mirandized him [Ellison], that he had stated—made it an inference that
he wanted an attorney, and that he had made it very clear to us, because I knew that was
going to be an issue later at trial. That was what upset me the most was the fact that that
20

- 58 -

1

recorded and which occurred about 20-25 minutes after the first interview had ended,21

2

Detective Watson summarized Ellison’s statement during the initial interview as “you said

3

you wanted an attorney”; and (5) Detective Watson’s summary as reflected on the

4

recording was inaccurate because, as Detective Watson had earlier testified, Ellison

5

actually said “I think I might want a lawyer” during the first portion of the interview.

6

Detective Auld also testified during the suppression hearing and provided an account that

7

was consistent with Detective Watson’s. At the conclusion of the hearing, Judge Moon

8

rejected Ellison’s testimony as incredible and denied the suppression request.

9

In Claim 52, Ellison identifies two reasons why the suppression-hearing testimony

10

of Detectives Watson and Auld was false and, relatedly, why the prosecution’s presentation

11

of that false testimony should be deemed to have violated Napue: (1) the cassette; and (2)

12

the handwritten note.

13

a.

The Cassette

14

Ellison’s first Napue theory involves the cassette from the first portion of his

15

interrogation (which, as noted, Detective Watson testified was blank, thus necessitating the

16

re-interview). According to Ellison, an expert retained by his habeas counsel has now

17

analyzed the original cassette and determined that it was not blank—instead, it contains a

18

brief portion “in which voices are discernable, followed by 25 minutes of an erased

19

recording.” (Doc. 21 at 312.) According to Ellison, this expert will further opine that “[t]o

20

do this, the officers would have had to knowingly record over the interrogation—it could

21

not have been the mishap of failing to press record that Watson described in his testimony.”

22

(Doc. 38 at 164.) Thus, Ellison contends, “Watson’s and Auld’s testimony about the

23

‘blank’ tape was false. The correct and truthful testimony would have been that Watson

24

did not fail to press record, the recording was in fact not blank, there was an audible portion

25

of the recording, and the recorded interrogation was erased.” (Doc. 21 at 312.)

26
27
28

was going to be contested and we didn’t have that clearly laid out on the recorded
interview.” (RT 7/20/99 at 59.)
21

See RT 7/20/99 at 37-38 (Detective Watson, agreeing to this timeframe).
- 59 -

1

In response, Respondents raise an array of reasons why Ellison should not be

2

granted habeas relief based on the audio cassette component of Claim 52. (Doc. 30 at 215-

3

23.) Because the Court agrees that two of those reasons are independently dispositive, it

4

is unnecessary to reach Respondents’ other arguments.

5

Ellison acknowledges he did not raise a Napue claim based on the audio cassette

6

during his state-court proceedings. (Doc. 21 at 315 [“The above allegations regarding

7

Auld’s and Watson’s false testimony were not raised in state court.”].) As a result,

8

Respondents argue this claim is procedurally defaulted. (Doc. 30 at 216.) Ellison,

9

meanwhile, contends he can establish the cause and prejudice necessary to overcome the

10

procedural default. (Doc. 21 at 315-17.) As for the cause requirement, Ellison’s theory is

11

that “the reason for his failure to develop [the claim] was the State’s suppression of the

12

relevant evidence.” (Id., quoting Banks v. Dretke, 540 U.S. 668, 691 (2004).) More

13

specifically, Ellison argues in his habeas petition that the prosecution never produced

14

during discovery (or otherwise made available to him during discovery) the original

15

version of the audio cassette that his expert has now analyzed—instead, the prosecution

16

only produced a purported copy of the audio cassette, which did not contain proof of the

17

erasure. (Doc. 21 at 313 [“As part of discovery, trial counsel was provided a copy of the

18

microcassette by the State, which was then passed on to postconviction counsel. That copy,

19

it turns out, was not properly dubbed and did not accurately represent what was on the

20

original. When trial counsel’s copy is played there are no audible voices and therefore no

21

clear indication that the tape was not ‘blank.’”]; id. at 318-19 [arguing, in relation to Claim

22

53, that the prosecution “fail[ed] to provide trial counsel with . . . a proper copy of the

23

original microcassette recording of Ellison’s first interrogation” and that “[a]lthough the

24

State did provide a copy to trial counsel, it was not dubbed correctly, so none of the audio

25

was recognizable as voices”].)22 However, in his reply, Ellison acknowledges in a footnote

26

22

27
28

See also Doc. 21 at 314 (“[T]he original microcassette from the first interrogation
. . . was sealed in an envelope and entered into Kingman Police Department as item LSW33.
But LSW33 was not stored with all the other police evidence in the case. Instead, the item
had been stored in the prosecutor’s file in the Mohave County Attorney’s Office.”).
- 60 -

1

that the factual assertions on this issue in his petition are inaccurate:

2

In the Petition, Ellison referred to one copy of the microcassette containing
the first interrogation that was improperly dubbed. Undersigned counsel
believed at the time that this was the only copy of the first interrogation
provided to defense counsel and that it was provided to trial counsel
specifically. Since the Petition was filed, undersigned counsel discovered
another cassette in previous counsel’s files. It is unclear at this time which
of these copies were provided to trial counsel and which to postconviction
counsel. The newly discovered cassette seems to begin with part of the
recording of the first interrogation followed by the full recording of the
second interrogations. This is all on one side of the cassette; the other side
is blank. The cassette seems to include only a portion of the first
interrogation, and then it continues onto the recording of the second
interrogation. Because both recordings were put on the same side and the
copy of the recording of the first interrogation is truncated, without having
listened separately to an accurate copy of the first interrogation this dual copy
does not alert the listener as to what if any part of the audible portion came
from the first interrogation.

3
4
5
6
7
8
9
10
11
12
13
14

(Doc. 38 at 163 n.26, citations omitted and emphasis added.) Nevertheless, Ellison argues

15

that if “this claim should have been raised postconviction, . . . Ellison will demonstrate that

16

postconviction counsel was ineffective in failing to raise this claim.” (Id. at 165.)23

17

In light of the clarification in his reply, Ellison has not demonstrated the cause

18

necessary to overcome the procedural default of his Napue claim based on the audio

19

cassette. Although “the state’s suppression” of evidence can “establish[] cause . . . when

20

it is the reason for [a habeas petitioner’s] failure to develop facts in state court

21

proceedings,” Henry v. Ryan, 720 F.3d 1073, 1082 (9th Cir. 2013), that principle is

22

inapplicable here because the original audio cassette was not suppressed from Ellison in a

23

manner that prevented him from developing his Napue claim during the state-court

24

proceedings. To the contrary, the original audio cassette was provided to Ellison’s state-

25

court counsel, who nevertheless failed to retain an expert to perform sort of analysis and

26

23

27
28

Ellison makes the same argument in his request for evidentiary development: “[I]f
the State did not suppress this information, then the failure to present it to the state courts
resulted from the ineffective assistance of postconviction counsel, which in turn provides
cause for the default and establishes prejudice.” (Doc. 41 at 40-41 n.6.)
- 61 -

1

testing that Ellison has now (via his habeas counsel) retained an expert to perform. Under

2

these circumstances, Ellison cannot argue that the state’s suppression of evidence qualifies

3

as cause to excuse the procedural default of his claim. Henry, 720 F.3d at 1083-85

4

(concluding that habeas petitioner failed to show that suppression established cause for the

5

procedural default of a Brady claim because he “had evidentiary support for his claim more

6

than a decade before commencing federal habeas proceedings” and noting, in relation to a

7

related Napue claim, that because “[t]he facts underlying this claim were developed not by

8

analyzing evidence that was produced in federal habeas proceedings, but rather by [the]

9

analysis [by experts retained by habeas counsel] of evidence that had been in Henry’s

10

possession for years,” “[t]he factual predicate for this claim could previously have been

11

discovered through diligence”).

12

As for Ellison’s fallback argument that the ineffective assistance of his PCR counsel

13

(presumably, in not retaining an expert to perform the sort of testing on the audio cassette

14

that Ellison’s habeas counsel have now retained an expert to perform) qualifies as cause to

15

overcome the procedural default of his Napue claim, that argument is foreclosed by Ninth

16

Circuit law. Martinez, 926 F.3d at 1225 (“[I]neffective assistance of PCR counsel can

17

constitute cause only to overcome procedurally defaulted claims of ineffective assistance

18

of trial counsel.”).

19

Finally, separate from the issue of cause, Ellison also cannot establish prejudice in

20

relation to the audio cassette. Frost v. Gilbert, 835 F.3d 883, 889-90 (9th Cir. 2016)

21

(affirming denial of habeas relief because petitioner had only demonstrated cause, but not

22

prejudice, as to procedurally defaulted Napue and Brady claims); Sivak, 658 F.3d at 914

23

(“[T]here was no prejudice during the guilt phase on account of the Napue and Brady

24

violations.”). As Respondents correctly note, Ellison’s tape-erasure theory is based on a

25

series of highly speculative inferences, including that “the deleted audio would have

26

actually refuted Watson’s and Auld’s testimonies during the voluntariness hearing—

27

instead of verifying their testimonies.”

28

underlying Ellison’s tape-erasure theory is that Detective Watson must have realized that

(Doc. 30 at 220-21.)

- 62 -

Indeed, the premise

1

Ellison’s unqualified request for counsel during that interview posed a Miranda problem

2

and thus felt it necessary to erase the evidence of that request (the tape from the first

3

interview) and return to the jail for another recorded interview. Otherwise, there would

4

have been no reason to conduct the second interview. But in that hypothetical scenario,

5

the scheming, evidence-destroying officer would surely make a point of clarifying during

6

the second interview that the suspect’s request for counsel during the first interview was

7

equivocal (and thus insufficient to trigger Miranda). Why else go to the trouble of erasing

8

the recording of the first interview? Here, unlike in the hypothetical scenario, the recording

9

from the second interview is not favorable to law enforcement with respect to the Miranda

10

issue—on the recording, Detective Watson describes Ellison’s request for counsel during

11

the first interview as unequivocal (“you said you wanted an attorney”). It makes no sense

12

that Detective Watson would have erased the recording of the first interview containing

13

that statement just to turn around and make another recording of himself attributing the

14

same statement to Ellison.

15

b.

The Handwritten Note

16

The other basis for Ellison’s Napue claim is a handwritten note that the original

17

prosecutor, Craig Friesner, made on an intake summary form on the day Detectives Watson

18

and Auld interviewed Ellison. The passage at issue, an excerpt from several pages of

19

shorthand notes, reads:

20

Slinger fd in van

21

I th “I want a lawyer”

22

Then: “I’ll talk”

23

(Doc. 21 at 313; see Doc. 42-5 at 54, Ex. 19, ¶ 2 [actual note].) According to Ellison, this

24

note constitutes Friesner’s “contemporaneous record of what Watson reported to Friesner

25

about what happened in the interrogation of Ellison.” (Doc. 38 at 164.) Ellison contends

26

this evidence shows that Detectives Watson and Auld lied when they testified that Ellison

27

said “I think I might want a lawyer” instead of “I want a lawyer.” (Doc. 21 at 313-15.)

28

Ellison acknowledges he did not raise a Napue claim based on the handwritten note

- 63 -

1

during his state-court proceedings. (Doc. 21 at 315.) As a result, and as with the Napue

2

claim based on the audio cassette, Respondents argue this claim is procedurally defaulted.

3

(Doc. 30 at 216.) Ellison, in turn, contends once again that he can overcome the procedural

4

default by showing cause and prejudice, with cause established via the state’s suppression

5

of evidence. (Doc. 21 at 315-17.)

6

The suppression analysis is complicated by the fact that the parties seem to disagree

7

about whether the handwritten note was disclosed to Ellison’s trial counsel. In his petition,

8

Ellison asserts that “the State failed to disclose the Mohave County Attorney’s Office

9

Intake Summary . . . . It was simply never given to trial counsel.” (Doc. 21 at 329.) In

10

response, Respondents contend that, “[a]s an initial matter, Ellison has not even

11

demonstrated that the State did not disclose purported information from the previous

12

prosecutor[].” (Doc. 30 at 227.) In reply, Ellison asserts: “[Respondents] offer conjecture

13

that the Intake Summary was not suppressed and that trial counsel may have received a

14

copy. Respondents however do not point to any trial disclosure by the State to demonstrate

15

that the Intake Summary was provided to trial counsel, which is the only way trial counsel

16

could have obtained it. The copy of the State disclosures in the defense files does not

17

include the Intake Summary. There was no copy of the Intake Summary in any of defense

18

files received by undersigned counsel. Undersigned counsel obtained the summary when

19

they obtained the Mohave County Attorney’s file from that office. Respondents therefore

20

fail to demonstrate the summary was not suppressed.” (Doc. 38 at 166-67.)

21

The Court finds it unnecessary to resolve this issue (or hold an evidentiary hearing

22

to develop it further) because, even assuming the handwritten note was suppressed in a

23

manner that establishes cause for the procedural default, Ellison has failed to show

24

prejudice. To prevail on his Napue claim, Ellison would need to show, among other things,

25

that Detectives Watson and Auld knew they were testifying falsely when they testified

26

during the suppression hearing that Ellison stated “I think I might want a lawyer” during

27

the interrogation, rather than “I want a lawyer.” Henry, 720 F.3d at 1084 (“We need not

28

reach the question of whether Detective Patterson’s knowledge must be imputed to the

- 64 -

1

prosecution, because we agree with the district court that Henry has not established that

2

Patterson knowingly provided false testimony during trial.”). Friesner’s handwritten note

3

does not establish that the detectives’ testimony on this point was knowingly false. At

4

most, the note suggests that when Detective Watson initially described the interrogation to

5

Friesner, he summarized Ellison’s testimony in the same manner he summarized it during

6

the recorded second interview (i.e., as an unqualified request for a lawyer). But as

7

discussed, Detective Watson testified that this summary was inaccurate and that Ellison’s

8

words were, in fact, “I think I might want a lawyer.” Judge Moon, who was aware that

9

Detective Watson had provided inconsistent descriptions of Ellison’s statement, still

10

credited Detective Watson’s testimony. Given this backdrop, the handwritten note from

11

Friesner does not establish that Detectives Watson and Auld knowingly lied when

12

testifying about Ellison’s statement. Henry, 720 F.3d at 1084 (“Although Henry has

13

provided evidence rebutting Patterson’s version of the facts, he has provided no evidence

14

that Patterson knew his testimony was inaccurate at the time he presented it, rather than

15

Patterson’s recollection merely being mistaken, inaccurate or rebuttable.

16

conclusory assertion that, because Patterson must have known where he stepped while

17

investigating the crime scene, any testimony inconsistent with the truth must be not only

18

inaccurate but also perjured does not constitute evidence sufficient to make out a Napue

19

claim.”). See also United States v. Rampoldi, 825 F. App’x 490, 490-91 (9th Cir. 2020)

20

(rejecting Napue claim: “Rampoldi failed to show the witness’s testimony was false, as

21

opposed to merely inconsistent, and the witness attempted to explain the apparent

22

inconsistencies. Rampoldi at most points to evidence creating an inference of falsity,

23

which is not sufficient. Moreover, defense counsel extensively and effectively cross-

24

examined Weigand about the alleged inconsistencies.”) (cleaned up); United States v.

25

Renzi, 769 F.3d 731, 752 (9th Cir. 2014) (“We also question whether Renzi met the first

26

two prongs of the Napue test.

27

recollections generally do not satisfy the falsehood requirement.”).

28

Henry’s

Mere inconsistencies or honestly mistaken witness

…

- 65 -

1

2.

Vivian Brown

2

Ellison’s other Napue theory relates to the testimony of the victims’ daughter,

3

Vivian Brown. At both the guilt and sentencing phases of trial, Brown testified that in

4

October 1997 she was present on the patio of her parents’ house while her mother spoke

5

with a man Brown later identified as Ellison, who had been doing repair work on a wall in

6

the Bouchers’ backyard. (RT 1/15/02 at 47-50; RT 2/6/04 at 107-08.) According to Brown,

7

Ellison commented on the view from the Bouchers’ yard, noting that you could see all of

8

Kingman. (RT 1/15/02 at 49-50.) Brown also testified that she saw Ellison a second time,

9

working on an electrical box at a home two doors down from her parents’ house. (RT

10

1/15/02 at 51; RT 2/6/04 at 131-32.) At the guilt phase of trial, she testified that this second

11

sighting of Ellison occurred during the monsoon season of 1998, on a warm day, possibly

12

in July or August. (RT 1/15/02 at 51.) At the sentencing phase, she testified that the

13

sighting could have happened in April or May of 1998. (RT 2/6/04 at 132.)

14

As part of Claim 52, Ellison argues that Brown’s testimony about seeing him a

15

second time in 1998 was necessarily false because he was in custody throughout that year,

16

being released in January 1999. (Doc. 317-18.) Ellison further argues that Napue is

17

implicated because the prosecutor, who had possession of his prison records, must have

18

known that he was incarcerated during that period. (Id.)

19

An initial question raised in the parties’ briefing is whether this claim is procedurally

20

defaulted. Ellison contends it is not because he “raised the Napue claim related to Brown’s

21

false testimony in his [PCR] petition and in his petition for review.” (Doc. 21 at 317.)

22

Respondents, meanwhile, contend that “Claim 52 is procedurally defaulted . . . because

23

Ellison failed to present it in state court, and he has not established any excuse to overcome

24

the default.” (Doc. 30 at 215.) Respondents do not, however, seem to acknowledge

25

Ellison’s contention that he raised a Napue claim related to Brown during his PCR

26

proceedings. (Id. at 215-24.) In reply, Ellison clarifies that he does not concede a lack of

27

exhaustion as to this claim. (Doc. 38 at 165.)

28

The Court agrees with Respondents that Ellison’s Napue claim related to Brown’s

- 66 -

1
2
3

testimony is procedurally defaulted without excuse. During his direct appeal, Ellison did
not raise a Napue claim related to Brown’s testimony. Thus, under Arizona Rule of
Criminal Procedure 32.2, he was precluded from raising such a claim in a PCR proceeding.

4

See, e.g., Cotham v. Shinn, 2022 WL 20595113, *15 (D. Ariz. 2022) (“Petitioner asserts a

5

Napue claim alleging he was denied a fair trial because the prosecutor ‘knowingly

6
7
8
9

presented perjured testimony.’ Petitioner did not raise this claim on appeal. Petitioner
raised it in his PCR petition but the PCR court determined it was precluded under Ariz. R.
Crim. P. 32.2. The Arizona Court of Appeals found no abuse of discretion in that
determination.

The claim is therefore expressly procedurally defaulted.”) (citations

10

omitted). Presumably for this reason, Ellison’s PCR petition did not raise a standalone

11

Napue claim. Instead, Ellison raised a claim of “Ineffective Assistance at the Guilt Phase”

12
13
14

and then argued, in one of the subheadings in this section of his petition, that his trial
counsel engaged in ineffective assistance by failing to obtain his jail records, which could
have been used to impeach Brown. (PCR Pet. at 62, 73-75). Admittedly, this portion of

15

the petition also included several references to Napue and an assertion that “the prosecutor

16

let his witness testify more than once to a fact he knew was incorrect.” (Id. at 73-75.)

17

However, the PCR court did not construe the PCR petition as raising a Napue claim—

18

instead, the court construed Ellison’s arguments on this point as raising a claim of

19

ineffective of counsel and then summarily denied relief because the issue was “of little

20

moment or relevance to guilt or punishment.” (PCR Ruling, 7/16/12 at 5.) Given this

21
22
23
24

backdrop, it cannot be said that Ellison exhausted his Napue claim as required by Arizona
law.
Alternatively, Ellison would not be entitled to habeas relief on this claim even if it
were exhausted. If, as Ellison contends, the PCR court considered and rejected his Napue

25

claim on the merits, then § 2254(d)’s deferential standard of review would apply. Under

26

that standard, Ellison would bear the heavy burden of establishing that the PCR court’s

27
28

decision was contrary to or an unreasonable application of clearly established federal law
or based on an unreasonable determination of the facts. Ellison has not met that burden
- 67 -

1

here. In particular, under the third prong of Napue, Ellison was required to establish a

2

“reasonable likelihood” that the introduction of Brown’s false testimony about the date of

3

the second sighting “could have affected the judgment of the jury.” Jackson, 513 F.3d at

4

1076. Although this is not a particularly exacting standard, it also “does not create a per

5
6

se rule of reversal.” Id. (cleaned up). It would not have violated § 2254(d) for the state
court to conclude that Ellison failed to make the required showing on that issue. The

7

significant date in Brown’s testimony was October 1997, when she observed Ellison

8

speaking with her mother at her parents’ home. This established that Ellison was familiar

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

with the Kingman location, the victims, and their house. Her testimony that she later saw
Ellison in 1998, at a different location in the neighborhood, was cumulative. Even if the
second sighting could not have occurred during the timeframe she described, impeaching
her on this point would have done little to impeach her testimony that she saw Ellison at
her parents’ home in 1997, especially given she acknowledged that she got a much better
look at him during that first encounter than when she saw him the second time. (RT 1/15/02
at 92.) Brown also testified that Ellison recognized her as the Bouchers’ daughter when
she spoke to him in person following his arrest, despite there being no intervening contact
between them. (Id. at 94.) This supports Brown’s testimony that the two met in October
1997. Finally, it cannot be overlooked that the evidence of guilt in this case included
Ellison’s recorded confession. See, e.g., Juniper v. Davis, 74 F.4th 196, 246 (4th Cir.
2023) (“[T]here is no reasonable likelihood that this evidence could have affected the
judgment of the jury. It in no way undermines the significant forensic evidence against
Juniper, Smith’s testimony of hearing a confession, or the independent testimony of Rashid
and Mings. And it only slightly undermines the credibility of the police and Murray. No
reasonable juror who voted to convict based on the evidence presented at trial would
change their vote based on the Napue evidence presented in this case.”); Sivak, 658 F.3d at
913-14 (“In light of this strong evidence of guilt under either a direct felony-murder theory
or an aiding-and-abetting felony murder theory, the Napue violations could not have
changed the jury’s guilt determination.”); United States v. Mickling, 642 F.App’x 821, 825- 68 -

1
2
3
4

26 (10th Cir. 2016) (finding no plain error even assuming a Napue violation where a
witness falsely testified that she met the defendant in 2010, a period when he was
incarcerated, because the focus of the case and witnesses’ testimony was on 2013 when the
defendant was arrested).

5

N.

6
7

Claim 53

In Claim 53, Ellison alleges that the State violated its duty under Brady v. Maryland,
373 U.S. 87 (1963), to disclose relevant and material evidence. (Doc. 21 at 318-21.) More

8

specifically, Ellison contends that the State “fail[ed] to provide trial counsel with [1] the

9

Mohave County Attorney Office’s Intake Summary and [2] a proper copy of the original

10

microcassette recording of Ellison’s first interrogation, and [3] to disclose the fact that the

11

recording of Ellison’s first interrogation had been erased.” (Id. at 318, brackets added.)24

12

Ellison acknowledges that “[t]his claim was not raised in state court.” (Id. at 321.) As a

13
14

result, Respondents contend the claim is procedurally defaulted without excuse. (Doc. 30
at 224.)

15
16
17
18

The Brady analysis regarding Friesner’s handwritten note in some ways mirrors the
Napue analysis regarding the note. Even assuming for the sake of argument that the note
was suppressed, which could qualify as cause for the procedural default, Ellison has not
established prejudice due to his failure to establish the materiality element of his Brady

19

claim—that is, “a reasonable probability that, had the [note] been disclosed to the defense,

20

the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. See also

21

Banks, 540 U.S. at 691 (“[C]oincident with the third Brady component (prejudice),

22

prejudice within the compass of the ‘cause and prejudice’ requirement exists when the

23

suppressed evidence is ‘material’ for Brady purposes.”). As discussed elsewhere, Judge

24
25
26
27
28

24

Brady requires the State to disclose material evidence favorable to the defense.
373 U.S. at 87. To succeed on a Brady claim, a petitioner bears the burden of showing that
the evidence was (1) favorable to the accused, either as exculpatory or impeachment
evidence; (2) suppressed by the prosecution, either willfully or inadvertently; and (3)
material, so that prejudice to the defense resulted from its suppression. Strickler v. Greene,
527 U.S. 263, 281-82 (1999).
- 69 -

1

Moon (the factfinder during the suppression hearing) was fully aware that Detective

2

Watson had provided conflicting accounts of Ellison’s statement during the interrogation—

3

although Detective Watson testified during the suppression hearing that Ellison said “I

4

think I might want a lawyer” (RT 7/20/99 at 12), Detective Watson described this very

5

same statement as “you said you wanted an attorney” during the recorded second interview

6

(id. at 26). During the suppression hearing, Detective Watson was confronted with

7

discrepancy and avowed that the correct version was “I think I might want a lawyer.” (Id.

8

at 26-27.) After hearing that testimony, as well as Ellison’s contrary account, Judge Moon

9

accepted Detective Watson’s account and rejected Ellison’s. (RT 11/23/99 at 49-50 [“I

10

find that [Ellison] did not clearly invoke his right to an attorney or request an attorney, but

11

he made an equivocal statement to the effect that he thought he might want an attorney

12

. . . . And that Detective Watson’s testimony about that exchange is the more credible

13

evidence.”].) Notably, this determination was based in part on Judge Moon’s incredulity

14

that Ellison would have been confused about how the interrogation process works in light

15

of Ellison’s familiarity with the criminal justice system. (Id. at 49 [“I find the defendant’s

16

testimony to be highly suspect for a few reasons. No. 1, because of his prior felony

17

convictions.”].) Given this background, there is not a “reasonable probability” that Judge

18

Moon would have reached a different decision during the suppression hearing had he been

19

aware that Detective Watson provided Friesner with the same (inaccurate) summary of

20

Ellison’s statement that Detective Watson provided during the second recorded interview.

21

United States v. Marashi, 913 F.2d 724, 732 (9th Cir. 1990) (rejecting Brady claim, even

22

though government had suppressed notes that contained evidence of an inconsistent

23

statement by a witness, because the government had produced other evidence of the witness

24

making the same inconsistent statement and the witness had been impeached with that

25

evidence at trial: “Well before trial, the government provided Marashi the transcript of

26

Smith’s July 18, 1985 statement to the IRS which contained a reference to patient ledger

27

cards virtually identical to that in Agent Abrahamson’s notes. In this light, the notes

28

contained merely cumulative impeachment evidence and thus are not Brady material.”).

- 70 -

1

Turning to the next piece of allegedly suppressed evidence—“a proper copy of the

2

original microcassette recording of Ellison’s first interrogation”— the Brady analysis again

3

mirrors that Napue analysis. In light of Ellison’s acknowledgement in his reply that the

4

audio tape was provided to his counsel during the state-court proceedings, the evidence

5

was not suppressed within the meaning of Brady. Thus, Ellison cannot establish cause for

6

the procedural default. Banks, 540 U.S. at 691 (“Corresponding to the second Brady

7

component (evidence suppressed by the State), a petitioner shows ‘cause’ when the reason

8

for his failure to develop facts in state-court proceedings was the State's suppression of the

9

relevant evidence . . . .”). Separately, Ellison has not established prejudice for the reasons

10

discussed in relation to his Napue claim—it is nonsensical that Detective Watson would

11

have intentionally deleted the recording of the first interview during the 20-25 minute

12

interval between the first and second interviews just so he could return to the jail and make

13

another recording of himself attributing, to Ellison, to very same statement he had just

14

taken pains to delete.

15

Finally, to the extent Ellison argues that “the fact that the recording of Ellison’s first

16

interrogation had been erased” qualifies as a distinct basis for his Brady claim (Doc. 21 at

17

318), this claim fails for the same reasons as his Brady claim premised on the “proper copy”

18

of the original cassette—first, he cannot show cause in light of the State’s production of

19

the original cassette during his state-court proceedings (which, according to his theory,

20

contains evidence of the erasure); and second, he cannot show prejudice in light of the

21

nonsensical nature of his erasure theory and his possession and use of other evidence

22

(namely, the recording of the second interview) that could be used to impeach Detective

23

Watson’s testimony about what was said during the first interview.

24

O.

25

In Claim 55, Ellison alleges that the State committed prosecutorial misconduct in

26

violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc.

27

21 at 322-25.) More specifically, Ellison argues that “[t]he prosecutor in Ellison’s case

28

engaged in multiple acts of misconduct. The prosecutor failed to investigate, disclose, or

Claim 55

- 71 -

1

timely disclose material evidence. The prosecutor knowingly or with implied knowledge

2

elicited false testimony and evidence or allowed false testimony and evidence to go

3

uncorrected. The prosecutor also argued different theories at Finch’s trial than he did at

4

Ellison’s. . . . The prosecutor failed to maintain or supervise the proper handling and

5

maintenance of crucial evidence, specifically the microcassette from the first interrogation

6

of Ellison. In postconviction, the prosecutor continued to represent the State despite

7

conflicts of interest. . . . Moreover, and as discussed throughout this petition, the prosecutor

8

introduced hearsay testimony and evidence in violation of Ellison’s fair trial, due process,

9

and confrontation rights, and which violated the rules of court and evidence which protect

10

those constitutional rights.” (Id., citations omitted.)

11

Ellison acknowledges he did not raise this claim in state court. (Id. at 322.) He

12

argues that the “deficient performance of state court counsel,” including trial and PCR

13

counsel, excuses the claim’s default. (Id.) In response, Respondents contend that PCR

14

“counsel’s alleged ineffectiveness cannot serve as cause to excuse the procedural defaults

15

because the underlying claims do not allege trial counsel’s ineffectiveness. And appellate

16

counsel’s alleged ineffectiveness cannot constitute cause because that claim is itself

17

procedurally defaulted and Ellison has not excused the default.” (Doc. 30 at 231.)

18

Respondents are correct. Ellison did not exhaust independent claims that either trial

19

or appellate counsel was ineffective by failing to raise a claim of prosecutorial misconduct.

20

Therefore, ineffective assistance of trial or appellate counsel cannot serve as cause for the

21

underlying claim’s default. Carpenter, 529 U.S. at 453 (“[A]n ineffective-assistance-of-

22

counsel claim asserted as cause for the procedural default of another claim can itself be

23

procedurally defaulted . . . .”); Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003) (“To

24

constitute cause for procedural default of a federal habeas claim, the constitutional claim

25

of ineffective assistance of counsel must first have been presented to the state courts as an

26

independent claim. Because Cockett’s claim of ineffective assistance of trial counsel was

27

procedurally defaulted, trial counsel’s performance cannot constitute cause.”) (citation

28

omitted). Again, Martinez applies only to claims of ineffective assistance of trial counsel,

- 72 -

1

so PCR counsel’s performance in failing to raise this claim does not excuse its default.

2

Martinez, 926 F.3d at 1225; Pizzuto, 783 F.3d at 1177; Hunton, 732 F.3d at 1126-27. Claim

3

55 is therefore procedurally defaulted and barred from federal review.

4

P.

5

Claim 45 consists of allegations that defense counsel performed ineffectively during

6

both phases of Ellison’s trial. (Doc. 21 at 210.) In Claim 45(D), Ellison alleges six forms

7

of ineffective assistance during the guilt phase. (Id. at 275-87.)

8

Claim 45(D)

1.

Clearly Established Federal Law

9

Claims of ineffective assistance of counsel are governed by the principles set out in

10

Strickland v. Washington, 466 U.S. 668 (1984). “The benchmark for judging any claim of

11

ineffectiveness must be whether counsel’s conduct so undermined the proper functioning

12

of the adversarial process that the trial cannot be relied on as having produced a just result.”

13

Id. at 686. To prevail under Strickland, a petitioner must show that counsel’s representation

14

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

15

defense. Id. at 687-88. Unless both showings are made, “it cannot be said that a conviction

16

or death sentence resulted from a breakdown in the adversary process that renders the result

17

unreliable.” Id. at 687.

18

The inquiry under Strickland is highly deferential. Id. at 689. “A fair assessment

19

of attorney performance requires that every effort be made to eliminate the distorting

20

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and

21

to evaluate the conduct from counsel’s perspective at the time.” Id. The “standard is

22

necessarily a general one,” Bobby v. Van Hook, 558 U.S. 4, 7 (2009), because “[n]o

23

particular set of detailed rules for counsel’s conduct can satisfactorily take account of the

24

variety of circumstances faced by defense counsel or the range of legitimate decisions

25

regarding how best to represent a criminal defendant,” Strickland, 466 U.S. at 688–89.

26

Deficient performance is established by “showing that counsel made errors so

27

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

28

Sixth Amendment.” Id. at 687. To make this showing, a petitioner must overcome “the

- 73 -

1

presumption that, under the circumstances, the challenged action might be considered

2

sound trial strategy.” Id. at 689 (quotation omitted).

3

“The question is whether an attorney’s representation amounted to incompetence

4

under ‘prevailing professional norms,’ not whether it deviated from best practices or most

5

common custom.” Richter, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690). “The

6

defendant bears the heavy burden of proving that counsel’s assistance was neither

7

reasonable nor the result of sound trial strategy.” Murtishaw, 255 F.3d at 939 (citing

8

Strickland, 466 U.S. at 689). “[T]he relevant inquiry . . . is not what defense counsel could

9

have pursued, but rather whether the choices made by defense counsel were reasonable.”

10

Murray, 745 F.3d at 1011 (quoting Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.

11

1998)).

12

With respect to Strickland’s second prong, a petitioner must affirmatively prove

13

prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s

14

unprofessional errors, the result of the proceeding would have been different. A reasonable

15

probability is a probability sufficient to undermine confidence in the outcome.” Strickland,

16

466 U.S. at 694. “The likelihood of a different result must be substantial, not just

17

conceivable.” Richter, 562 U.S. at 112 (citing Strickland, 466 U.S. at 693). The petitioner

18

“bears the highly demanding and heavy burden [of] establishing actual prejudice.” Allen

19

v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005) (quoting Williams, 529 U.S. at 394). The

20

strength of the prosecution’s case factors into the determination of prejudice. Strickland,

21

466 U.S. at 696 (“[A] verdict or conclusion only weakly supported by the record is more

22

likely to have been affected by errors than one with overwhelming record support.”); Riley

23

v. Payne, 352 F.3d 1313, 1321 n.8 (9th Cir. 2003) (“[O]ur evaluation of Strickland

24

prejudice must be considered in light of the strength of the government’s case.”).

25

Under AEDPA, claims of ineffective assistance of counsel are subject to two layers

26

of deference. “Surmounting Strickland’s high bar is never an easy task,” Padilla v.

27

Kentucky, 559 U.S. 356, 371 (2010), and “[e]stablishing that a state court’s application of

28

Strickland was unreasonable under § 2254(d) is all the more difficult,” Richter, 562 U.S.

- 74 -

1

at 105; see also Burt v. Titlow, 571 U.S. 12, 15 (2013) (under AEDPA, the reviewing court

2

“gives both the state court and the defense attorney the benefit of the doubt”). “When

3

§ 2254(d) applies, the question is not whether counsel’s actions were reasonable. The

4

question is whether there is any reasonable argument that counsel satisfied Strickland’s

5

deferential standard.” Richter, 562 U.S. at 105; see also Knowles v. Mirzayance, 556 U.S.

6

111, 123 (2009) (discussing the “doubly deferential judicial review that applies to a

7

Strickland claim under the § 2254(d)(1) standard”). Therefore, the “only question that

8

matters” under § 2254(d) is whether the state court’s decision was “so obviously wrong as

9

to be ‘beyond any possibility for fairminded disagreement.’” Kayer, 592 U.S. at 112

10

(quoting Richter, 562 U.S. at 102, 103); see also Woodford v. Visciotti, 537 U.S. 19, 27

11

(2002) (“The federal habeas scheme . . . authorizes federal-court intervention only when a

12

state-court decision is objectively unreasonable.”).

13

2.

Analysis

14

Ellison raises six claims of guilt-phase ineffective assistance of counsel. (Doc. 21

15

at 275-87.) PCR counsel raised, and the PCR court denied on the merits, five of these

16

claims. (PCR Ruling, 7/16/12, at 5-6.)

17

a.

Change Of Venue/Voir Dire

18

Ellison alleges that trial counsel performed ineffectively by failing to adequately

19

voir dire the jury or move for a change of venue. (Doc. 21 at 276-77.) The PCR court

20

rejected this claim, finding that counsel’s failure to conduct a more detailed voir dire was

21

a matter of “trial strategy” and noting that the jurors completed a “detailed questionnaire”

22

and “the trial judge conducted a thorough voir dire independently of counsel’s questions.”

23

(PCR Ruling 7/16/12 at 5.) The PCR court also concluded that Ellison was not prejudiced

24

by counsel’s failure to move for a change of venue because jury deliberations took place

25

three years after the crime and there was “no evidence” that the jury was “affected by

26

pretrial publicity.” (Id. at 6.)

27

A motion for change of venue must be supported by evidence of presumed or actual

28

prejudice. Ainsworth v. Calderon, 138 F.3d 787, 795-96 (9th Cir. 1998). Ellison appears

- 75 -

1

to argue that both presumed and actual prejudice warranted a change of venue. The PCR

2

court found that such evidence did not exist, so trial counsel did not perform ineffectively

3

in failing to move for a change of venue or in their conduct of voir dire. As explained

4

below, the PCR court’s conclusion as to this issue was reasonable, so habeas relief is not

5

warranted.

6

In deciding whether a defendant is entitled to a change of venue based on a

7

presumption of juror prejudice, a court considers “any indications in the totality of

8

circumstances that petitioner’s trial was not fundamentally fair.” Murphy v. Florida, 421

9

U.S. 794, 799 (1975). “The constitutional standard of fairness requires that a defendant

10

have ‘a panel of impartial, indifferent’ jurors.’” Id. (quoting Irvin v. Dowd, 366 U.S. 717,

11

722 (1961)). “Qualified jurors need not, however, be totally ignorant of the facts and issues

12

involved.” Id. at 799–800; see also State v. Bible, 858 P.2d 1152, 1166 (Ariz. 1993) (“Juror

13

exposure to information about an offense charged ordinarily does not raise a presumption

14

that a defendant was denied a fair trial.”).

15

Presumptive prejudice exists where the “trial atmosphere . . . was utterly corrupted

16

by press coverage.” Skilling v. United States, 561 U.S. 358, 380 (2010) (quoting Dobbert,

17

v. Florida, 432 U.S. 282, 303 (1977)); see also Bible, 858 P.2d at 1166 (prejudice is

18

presumed where “defendant can show pretrial publicity so outrageous that it promises to

19

turn the trial into a mockery of justice or a mere formality”).

20

Several factors are pertinent in determining whether presumed prejudice exists.

21

These include “the size and characteristics of the community in which the crime occurred”;

22

whether the associated media coverage included a “confession or other blatantly prejudicial

23

information of the type readers or viewers could not reasonably be expected to shut from

24

sight”; and the length of time that elapsed from the crime until the trial and the degree of

25

media coverage during that time. Skilling, 561 U.S. at 382-83. These factors demonstrate

26

that it was reasonable for the PCR court to conclude that a finding of presumed prejudice

27

was not warranted with respect to Ellison’s trial.

28

Kingman, with a population in the early 2000s of around 25,000, and Mohave

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1

County, with a then-population of around 185,000, are relatively small, but that factor is

2

not dispositive. In Bible, a case involving the murder of a nine-year-old child, the Arizona

3

Supreme Court rejected the appellant’s argument that the trial court erred in denying his

4

change-of-venue motion. The court explained that “[t]he burden to show that pretrial

5

publicity is presumptively prejudicial clearly rests with the defendant and is ‘extremely

6

heavy.’” 858 P.2d at 1167 (quoting Coleman v. Kemp, 778 F.2d 1487, 1537 (11th Cir.

7

1985)). The court first noted that “[b]ecause of the extensive pretrial publicity and the size

8

of Flagstaff and Coconino County (respective populations of approximately 45,000 and

9

100,000), nearly all potential jurors had some knowledge of the case.” Id. at 1166. The

10

court explained, however, that “for the most part” the news reports about the case were

11

“factually based.” Id. at 1167. Although other reports “discuss[ed] inadmissible evidence,

12

[were] inaccurate, or approach[ed] the ‘outrageous’ standard used in determining

13

presumptive prejudice,” they “were months apart and came months before the trial began”

14

and were “exceptions to the largely factual information in the great bulk of the news

15

reports.” Id. The court thus concluded that the appellant failed to carry his burden of

16

showing presumed prejudice from the extensive pretrial publicity. Id. at 1168. The pretrial

17

publicity in Ellison’s case was less problematic in extent and substance than that at issue

18

in Bible, and far less egregious than the publicity in the “rare and unusual cases where this

19

this difficult showing [presumed prejudice] has been made.” Id.25

20
21
22
23
24
25
26
27
28

25

The United States Supreme Court appears to have found presumed prejudice in only
three cases: Rideau v. Louisiana, 373 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532 (1965);
and Sheppard v. Maxwell, 384 U.S. 333 (1966). In Rideau, the defendant made a detailed
20-minute confession to robbery, kidnapping, and murder that was broadcast on television
three times; nearly 100,000 people saw or heard the broadcast, in a community of 150,000.
373 U.S. at 724. In Estes, “reporters and television crews overran the courtroom and
‘bombard[ed] . . . the community with the sights and sounds of’ the pretrial hearing. The
media’s overzealous reporting efforts . . . led to considerable disruption” and denied the
“judicial serenity and calm to which [Billie Sol Estes] was entitled.” Skilling, 561 U.S. at
379–80 (quoting Estes, 381 U.S. at 536). In Sheppard, “massive, pervasive and prejudicial
publicity,” much of it not fact-based or objective but sensational and openly hostile,
prevented the defendant from receiving a fair trial. 384 U.S. at 335. “In addition, only
three months before trial, Sheppard was examined for more than five hours without counsel
- 77 -

1

Ellison refers to newspaper articles and transcripts of radio broadcasts that were

2

attached to Finch’s motion for a change of venue. (Doc. 21 at 276.) These materials date

3

to 1999, three years before Ellison’s trial. The only newspaper article Ellison directly cites

4

is dated March 17, 2001, or 10 months before jury selection in Ellison’s case, and reports

5

on the sentencing verdict in Finch’s trial. The reports were fact-based and unsensational,

6

in contrast to some of the articles in Bible and other cases where presumptive prejudice has

7

been found.26 Accordingly, a change of venue motion based on a presumption of prejudice

8

would have been futile, see Skilling, 561 U.S. at 382-83; Bible, 858 P.2d at 1167-68, and,

9

in fact, Judge Moon had denied such a motion in Finch’s case.

10

A motion seeking a change of venue based on actual prejudice would have fared no

11

better. “When a motion to change venue is based on actual prejudice resulting from pretrial

12

publicity, the defendant must show that the ‘prejudicial material will probably result in the

13

[defendant] being deprived of a fair trial.’” Bible, 858 P.2d at 1169 (quoting Ariz. R. Crim.

14

P 10.3(b)). “Actual prejudice . . . exists when voir dire reveals that the jury pool harbors

15

actual partiality or hostility against the defendant that cannot be laid aside.” Hayes v. Ayers,

16

632 F.3d 500, 508 (9th Cir. 2011) (quoting Harris v. Pulley, 885 F.2d 1354, 1363 (9th Cir.

17

1988) (cleaned up). “This inquiry focuses on the nature and extent of the voir dire

18

examination and prospective jurors’ responses to it.” Id. at 510 (citing Skilling, 561 U.S.

19

at 385-89).

20

Ellison contends that counsel performed ineffectively by failing to voir dire the

21

jurors about the effect of pretrial publicity. (Doc. 21 at 277.) He argues that prejudice is

22

demonstrated by the jurors’ awareness of the publicity. (Id.) He also asserts that the juror

23

questionnaire and the voir dire itself, which lasted four and a half hours (see RT 1/14/02),

24
25
26
27
28

during a three-day inquest which ended in a public brawl. The inquest was televised live
from a high school gymnasium. . . .” Id. at 354.
Rather than sensationalizing the case, one of the radio reports cited in Finch’s
motion for a change of venue states that the police were seeking to “dispel rumors” based
on “false information” provided by one of the co-defendants that the murders were a gangrelated hit. (PCR Pet., Ex. 13.)
26

- 78 -

1

were insufficient. (Doc. 21 at 276-77.) These arguments are unavailing, particularly in

2

light of the deference owed to the PCR court’s contrary determination.

3

First, the fact that jurors were exposed to information about the case does not, alone,

4

deprive a defendant of due process. Skilling, 561 U.S. at 380; Murphy, 421 U.S. at 799

5

(rejecting “the proposition that juror exposure to information about a state defendant’s prior

6

convictions or to news accounts of the crime with which he is charged alone presumptively

7

deprives the defendant of due process”). Next, the Supreme Court has reiterated that “[n]o

8

hard-and-fast formula dictates the necessary depth or breadth of voir dire.” Skilling, 561

9

U.S. at 386. “Jury selection . . . is ‘particularly within the province of the trial judge.’”

10

Id. (quoting Ristaino v. Ross, 424 U.S. 589, 594-95 (1976)). “When pretrial publicity is at

11

issue, ‘primary reliance on the judgment of the trial court makes [especially] good sense’

12

because the judge ‘sits in the locale where the publicity is said to have had its effect’ and

13

may base her evaluation on her ‘own perception of the depth and extent of news stories

14

that might influence a juror.’” Id. (quoting Mu’Min v. Virginia, 500 U.S. 415, 427 (1991)).

15

In Skilling, the petitioner argued that voir dire was insufficient with respect to

16

pretrial publicity because it lasted only five hours, the judge’s questions of the jurors were

17

conclusory, and the judge took the jurors at their word when they indicated they could be

18

fair. 561 U.S. at 387. The Supreme Court rejected this characterization, noting that the

19

trial court used a questionnaire to screen potential jurors and then questioned jurors

20

individually. Id. at 388. The result, the Court concluded, was an impartial jury. Id. at 398-

21

99.

22

The questionnaire filled out by Ellison’s prospective jurors included four questions

23

on pretrial publicity. (ROA, Vol. IV, Doc. 156.) The first such question described the

24

alleged crime and noted that Finch and Ellison were being tried separately. (Id.) The

25

questionnaire then asked whether the potential juror had “heard, discussed or read anything

26

about either case? If so, briefly describe the information you received.” (Id.) The next

27

question asked where the juror “obtained the information.” (Id.) The next question was,

28

“Based upon that information, have you formed any opinion or belief about what

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1

happened?” (Id.) Finally, the questionnaire asked whether the juror “feel[s] confident that

2

you can set aside that information, and any such opinion or belief, and reach a fair and

3

impartial verdict in this case based only on the evidence presented during trial?” followed

4

by “If not, why not?” (Id.)

5

During voir dire, Judge Moon questioned jurors who indicated they had received

6

information about the case from friends or from reading newspaper articles. (RT 1/14/02

7

at 25-26, 28, 161-62.) The court dismissed jurors who indicated they couldn’t set aside

8

what they had heard and judge the case from the evidence presented in court. (Id. at 26.)

9

These circumstances do not support a finding that counsel performed deficiently or

10

that Ellison suffered prejudice. The issue of pretrial publicity was addressed by the

11

questionnaire and the court’s follow-up questions during voir dire. Sechrest v. Baker, 816

12

F. Supp. 2d 1017, 1037-39 (D. Nev. 2011) (finding counsel not ineffective during voir dire

13

for failing to question the panel of prospective jurors regarding the effect of pre-trial

14

publicity, where jurors who admitted forming opinions about the case were excused, there

15

was no showing that any biased juror was seated, and petitioner did not identify any

16

additional action counsel should have taken), aff’d, 603 F.App’x 548 (9th Cir. 2015).

17

“The conduct of voir dire ‘will in most instances involve the exercise of a judgment

18

which should be left to competent defense counsel.’” Hovey v. Ayers, 458 F.3d 892, 909-

19

10 (9th Cir. 2006) (quoting Gustave v. United States, 627 F.2d 901, 906 (9th Cir. 1980));

20

see also Wilson v. Henry, 185 F.3d 986, 991 (9th Cir. 1999) (no ineffective assistance

21

where counsel relied on jurors’ statements that they would be fair and follow the law,

22

without asking about their views on criminal history). Ellison contends there was no

23

support for the PCR court’s determination that counsel’s failure to conduct detailed voir

24

dire was a matter of trial strategy because “there was no evidence of such a strategy.” (Doc.

25

21 at 277.) But under Strickland, the presumption is that counsel’s action might be a matter

26

of sound trial strategy. 466 U.S. at 689; see also Fields v. Woodford, 309 F.3d 1095, 1108

27

(9th Cir. 2002) (“[W]e cannot say that failure to inquire beyond the court’s voir dire was

28

outside the range of reasonable strategic choice or that it would have affected the

- 80 -

1

outcome.”).

2

Ellison also fails to show prejudice resulting from counsel’s performance. Prejudice

3

exists if counsel fails to question a juror during voir dire or move to strike a juror and that

4

juror is found to be biased, because this evinces “a reasonable probability that, but for

5

counsel’s unprofessional errors, the result of the proceeding would have been different.”

6

Fields v. Brown, 503 F.3d 755, 776 (9th Cir. 2007) (en banc) (quoting Strickland, 466 U.S.

7

at 694). But Ellison does not argue that any biased jurors were empaneled. Sechrest, 816

8

F. Supp. 2d at 1039 (“Sechrest does not make any allegation . . . that any individual who

9

was actually seated on the jury was biased. Therefore, Sechrest cannot show that any

10

conceivable shortcoming of his counsel’s performance with respect to juror voir dire

11

caused him prejudice.”); Campbell v. Bradshaw, 674 F.3d 578, 594 (6th Cir. 2012)

12

(rejecting ineffective assistance claim where petitioner failed to “identif[y] any juror who

13

was actually seated that indicated an inability to set aside any prior knowledge about the

14

case or to judge the case fairly and impartially”).

15

In sum, the PCR court’s rejection of this claim was neither contrary to nor an

16

unreasonable application of clearly established federal law, nor was it based on an

17

unreasonable determination of the facts.

18

b.

Gun Evidence

19

Ellison alleges that counsel performed ineffectively by “failing to adequately object

20

to and challenge improper evidence the State presented to suggest Ellison took a handgun

21

to the crime.” (Doc. 21 at 277-78.) The PCR court denied this claim, finding that it

22

“involve[d] an issue of little moment or relevance to guilt or punishment.” (PCR Ruling,

23

7/16/12 at 5.)

24

As noted, the State presented evidence at trial of a handgun (a Jennings .22

25

semiautomatic) found in the trunk of a vehicle in the garage of Ellison’s then-girlfriend,

26

Cathie Webster-Hauver. (RT 1/15/02 at 207-08; RT 1/16/02 at 171-72.) Over Ellison’s

27

objection, a latent-print examiner for the Arizona Department of Public Safety testified that

28

one of the eight prints she lifted from the gun could be identified as Ellison’s right index

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1

finger. (RT 1/16/02 at 113-14.) Ellison objected to the gun evidence on relevance grounds,

2

arguing there was no evidence connecting the gun to the crimes. (Id. at 110-12.) Judge

3

Moon overruled the objection, explaining: “[T]he standard being whether it would tend to

4

make a material fact more or less likely since it was found in the trunk of a car where he

5

[Ellison] was living, and there’s evidence that somebody had a gun . . . .” (Id. at 112.)

6

After the testimony of Detective Auld and the print examiner, Ellison’s counsel

7

renewed his objection, arguing the gun was not relevant under Rule 401 of the Arizona

8

Rules of Evidence because there was no admissible evidence connecting it with the crimes.

9

(Id. at 206.) Judge Moon then elaborated on his basis for denying the objection:

10
11
12
13
14
15
16

There is testimony in the record that the defendant said Finch had a gun. So
even aside from the issue of who really had the gun . . . , the presence of the
gun in that place in those circumstances at that time frame has probative
value on the issue of who had the gun or, if nothing else, the possible
Enmund/Tison issue. . . . I think even if it had been sort of undisputed that
Finch had the gun, the fact that it ended up where it did and allowing the
State to argue a reasonable inference that that was the gun, it has probative
value. How much, it’s not my job to decide.
(Id. at 209.)

17

Following the guilty verdicts, Ellison’s counsel filed a motion for a new trial.

18

(ROA, Vol. V, Doc. 172.) Counsel argued that the gun “was not relevant to the case and

19

should not have been admitted.” (Id. at 3.) He also asserted that “[t]he prejudice stemming

20

from the admission of this evidence is obvious, for it permitted the jury to speculate that

21

Defendant had been armed with a gun prior to his entry into the Boucher home. It certainly

22

cannot be said that it did not contribute to the verdicts returned by the jury.” (Id.) The

23

court denied the motion, finding that the evidence was neither irrelevant nor “unfairly

24

prejudicial.” (RT 3/15/02 at 7.) As noted, on direct appeal the Arizona Supreme Court

25

found that Judge Moon did not abuse his discretion in admitting the evidence because it

26

“establishes that Ellison possessed a gun before and after the crime, and combined with

27

other evidence that Finch did not possess a gun, makes less likely Ellison’s story that he

28

participated only because Finch threatened him with a gun.” Ellison, 140 P.3d at 916.

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1

Ellison now alleges that counsel performed ineffectively by not objecting to the gun

2

evidence as more prejudicial than probative under Arizona Rule of Evidence 403. (Doc.

3

21 at 278.) He also contends counsel was ineffective in failing to object to and move to

4

strike previous testimony about the gun, including hearsay testimony from Detective

5

Watson; failing to impeach Detectives Watson and Auld with their prior testimony; and

6

failing to object to “the State’s repeated, false assertions that Finch did not have access to

7

any gun.” (Id. at 280.)

8

Under Rule 403, “[t]he court may exclude relevant evidence if its probative value is

9

substantially outweighed by a danger of . . . unfair prejudice. . . .” In denying Ellison’s

10

motion for a new trial, Judge Moon specifically found that the gun evidence was not

11

“unfairly prejudicial.” (RT 3/15/02 at 7.) Therefore, it would have been futile for counsel

12

to have raised an objection based on unfair prejudice under Rule 403 rather than relevance.

13

James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (counsel was not ineffective for failing to

14

move to strike a special circumstance finding where the motion would have been futile).

15

Under cross-examination by defense counsel, Detective Watson testified that Ms.

16

Webster-Hauser stated that Ellison had been in possession of the Jennings handgun and

17

that Webster-Hauser’s daughter stated that Ellison had been staying at their house since

18

February 24, 1999. (RT 1/16/02 at 11.) Ellison contends that counsel should have objected

19

and moved to strike these hearsay responses. (Doc. 21 at 279.) Respondents contend that

20

Ellison cannot show prejudice from counsel’s performance because, if counsel had

21

objected to the statements on hearsay grounds, the prosecution could have called Webster-

22

Hauser and her daughter as witnesses, thereby satisfying Ellison’s Confrontation Clause

23

rights. (Doc. 30 at 194.) They also note that evidence of the gun, found at Ellison’s

24

residence and bearing his fingerprint, was admissible notwithstanding the hearsay

25

testimony. (Id.) For these reasons, and based on the strength of the evidence against

26

Ellison, there was not a reasonable probability of a different verdict if counsel had objected

27

to Detective Watson’s testimony. Delgadillo, 527 F.3d at 930 n.4 (upholding the denial of

28

an ineffective assistance claim where counsel failed to object to cumulative testimony and

- 83 -

1

petitioner “fail[ed] to establish that but for the admission of that testimony ‘there was a

2

reasonable probability that . . . the result of the proceeding would have been different’”).27

3

Ellison next argues that counsel performed ineffectively by failing to impeach

4

Detectives Auld and Watson with their prior testimony, during grand jury proceedings and

5

at a bail hearing, that Ellison told them the handgun Finch used to threaten Ellison was the

6

one he and Finch took from the Bouchers’ house. (Doc. 21 at 280.) According to Ellison,

7

this would impeach Auld’s trial testimony that “in the first interrogation, Ellison did not

8

identify the gun he said Finch pointed at him.” (Id.) Ellison does not provide a citation to

9

the trial transcript containing any such testimony by Detective Auld (see Doc. 21 at 280),

10

and the Court’s review of the transcript does not reveal trial testimony from either detective

11

claiming that Ellison did not identify the gun Finch allegedly pointed at him. In the absence

12

of such testimony, there was nothing to impeach, and trial counsel did not perform

13

ineffectively. Alternatively, and at any rate, Ellison has failed to establish that any failure

14

was prejudicial, given the strength of the evidence against him and the state court’s

15

reasonable determination that the handgun issue was “of little moment or relevance to guilt

16

or punishment.”

17

Finally, Ellison argues that counsel performed ineffectively by failing to object to

18

“the State’s repeated, false assertion that Finch did not have access to any gun.” (Doc. 21

19

at 280.) Again, however, Ellison fails to support his allegation that the prosecution

20

repeatedly and falsely argued to the jury that Finch had no access to a gun. Ellison cites

21

only a snippet from the prosecutor’s guilt-phase closing argument: “Ellison said that

22

Richard Finch pointed a gun at him. All of a sudden in the story we have a gun pointed at

23

him. And nobody’s ever found a gun associated with Richard Finch. . . .” (RT 1/18/02 at

24

15). This single statement, taken in context, is not misleading. It clearly refers to the lack

25

of evidence of Finch having a gun before the attack on the Bouchers, as supported by Brad

26

27

27
28

Ellison also fails to meet his burden of showing that counsel’s performance was
deficient. As with respect to the testimony about the police searching for the gun
mentioned by Finch, it is possible the “failure” to object was a matter of sound strategy,
with counsel choosing not to bring additional attention to the testimony.
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1

Howe’s testimony. It would be nonsensical for the prosecutor to argue, or the jury to

2

believe, that Finch didn’t have access to a gun when the State’s own evidence proved that

3

guns were among the property Finch took from the victims’ house. This interpretation of

4

the prosecutor’s statement is confirmed when he noted, in his rebuttal closing argument,

5

that one reason Howe had become frightened of Finch was that “now there is a gun in the

6

house.” (RT 1/18/02 at 47.)

7

Accordingly, the PCR court’s rejection of this claim was neither contrary to nor an

8

unreasonable application of clearly established federal law, nor was it based on an

9

unreasonable determination of the facts.

10

c.

Hearsay Evidence

11

Ellison alleges that trial counsel was ineffective in failing to object to “rampant

12

hearsay that violated the Confrontation Clause.” (Doc. 21 at 282.) The claim refers to

13

testimony by Detectives Watson and Auld and by Howe relating statements made by Finch,

14

and the testimony by Detective Watson about statements made by Ms. Webster-Hauver

15

and her daughter about Ellison’s access to the gun. (Id. at 282-83.) Ellison argues that the

16

testimony violated Crawford and Bruton and that counsel should have objected, asked that

17

the testimony be stricken, or moved for a mistrial “after each reference to these

18

inadmissible statements.” (Id. at 283.) The PCR court denied this claim without comment

19

as not colorable. (PRC Ruling 7/16/12, at 6.)

20

For the reasons previously discussed, hearsay objections to testimony regarding

21

Finch’s statements would have been futile. Finch’s statements to Detectives Watson and

22

Auld were not offered for the truth of the matter but to explain police action, including

23

their search for evidence and the arrest of Finch. “An out-of-court statement used to

24

explain why police took a certain action in their investigation is not hearsay.” Velazquez-

25

Rivera, 366 F.3d at 666; Johnson, 875 F.3d at 1279; Taylor, 569 F.3d at 749. Finch’s

26

statements to Howe were also nontestimonial and therefore not violative of Crawford.

27

Bruton does not apply to non-testimonial hearsay, see, e.g., Dargan, 738 F.3d at 651, nor

28

does it apply to statements offered for nonhearsay purposes, Street, 471 U.S. at 413-14.

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1

Separately, and as also previously discussed, counsel’s failure to object to Detective

2

Watson’s testimony about statements made by Ms. Webster-Hauver and her daughter

3

amounted to neither deficient nor prejudicial performance.

4

The PCR court’s rejection of this claim was neither contrary to nor an unreasonable

5

application of clearly established federal law, nor was it based on an unreasonable

6

determination of the facts.

7

d.

Vivian Brown’s Testimony

8

Ellison alleges that trial counsel was ineffective in failing to obtain his jail records

9

to rebut Vivian Brown’s testimony that she saw Ellison twice at or near her parents’ home.

10

(Doc. 21 at 283-85.) The PCR court denied this claim, finding that it “involve[d] an issue

11

of little moment or relevance to guilt or punishment.” (PCR Ruling, 7/16/12 at 5.) Ellison

12

contends that this decision was “factually and legally unreasonable” because evidence that

13

Brown could not have seen him a second time was relevant to her credibility, which in turn

14

was relevant to issues of his “culpability and premeditation.” (Doc. 21 at 284-85.)

15

As discussed, Brown testified that she saw Ellison at her parents’ house in October

16

1997 and saw him again at a neighbor’s house in 1998 during the monsoon season.

17

Ellison’s counsel attempted to impeach Brown with records from the Arizona Department

18

of Corrections showing that Ellison was in custody from May 29, 1998 to January 1999,

19

but the trial court ruled that the records were hearsay and could not be used in cross-

20

examination unless counsel sought to admit them under a hearsay exception. The Arizona

21

Supreme Court held that this ruling was not an abuse of discretion. Ellison, 140 P.3d at

22

915.

23

Ellison argues that counsel should have obtained and presented additional, available

24

records showing that he had been incarcerated in the Mohave County Jail from December

25

1997 until he was transferred to prison (for a parole violation) in May 1998. (Doc. 21 at

26

284.) However, even assuming for the sake of argument that counsel’s failure to obtain

27

and attempt to admit those records was deficient (and not a matter of sound trial strategy),

28

Ellison cannot demonstrate a reasonable probability that the outcome of his trial would

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1

have been different had counsel obtained and attempted to use the records at issue.

2
3
4
5

As discussed above, although Brown’s credibility may have been impeached by
records showing that Ellison was in custody throughout 1998, the key face-to-face
encounter between Brown and Ellison, in October 1997, was supported by evidence that
Ellison subsequently recognized Brown as the Bouchers’ daughter. (RT 1/15/02 at 94.)

6

Additionally, Ellison’s familiarity with the Kingman neighborhood where the

7

Bouchers lived was supported by evidence independent of Brown’s testimony. For

8

example, the police measured the distance between the home of Ellison’s parents and the

9
10
11
12
13
14
15
16

Boucher home as less than a quarter of a mile. (RT 1/16/02 at 200.) Also, it was Ellison
who drove to the Bouchers’ home and it was a glove from Ellison’s tattoo shop that was
found at the crime scene. Finally, Howe testified that Finch did not own a vehicle and, as
far as Howe knew, had never been to Kingman. (RT 1/17/02 at 76.) Accordingly, the
Court agrees with Respondents that “even if the jail records established that Vivian was
incorrect as to the time of her second contact with Ellison, the records would not have
undermined her testimony regarding her first and most significant contact with Ellison,
which established his familiarity with the victims, their home, and their backyard. As a

17

result, the state post-conviction court’s rejection of this claim was neither contrary to, nor

18

an unreasonable application of, Strickland . . . .” (Doc. 30 at 198.)

19

e.

Confession

20

Ellison alleges that trial counsel performed ineffectively by “failing to properly

21

challenge” the admission of his confession. (Doc. 21 at 285-86.) He contends that counsel

22

should have investigated and presented evidence that he suffers from Fetal Alcohol

23

Spectrum Disorder (“FASD”), such that his waiver of his Miranda rights was not knowing,

24

intelligent, or voluntary. (Id.)28 The PCR court denied the claim as “simply not supported

25

by the law,” explaining that “the best evidence of the police interviews is the actual words

26
27
28

28

In his petition, Ellison refers to his condition as FASD. The Court will follow that
usage except when referring to specific diagnoses rendered by Ellison’s experts or quoting
transcripts or other materials.
- 87 -

1

recorded by the police, wherein it is clear that the Defendant understood his rights and

2

waived his Constitutional protections.” (PCR Ruling, 7/16/12 at 6.) In addition, as

3

discussed in more detail below, the court found that Ellison failed to prove he had FASD.

4

Courts consider various factors when determining whether a waiver is knowing and

5

intelligent, including the “background, experience, and conduct of the accused.” Cook v.

6

Kernan, 948 F.3d 952, 967 (9th Cir. 2020) (quotation omitted). Other factors include “the

7

defendant’s maturity, education, physical condition, mental health, and age.” Id. at 968-

8

69 (quotation omitted).

9

At the time of his statement to Detectives Watson and Auld, Ellison was 33 years

10

old and, like the defendant in Cook, “had been arrested and provided Miranda warnings on

11

several occasions in the past.” Id. at 968. He told the detectives he understood his Miranda

12

rights. His IQ, most recently measured as 89, was average.29 When Ellison did confess,

13

he assigned primary responsibility for the crimes to Finch. Id. at 970 (voluntariness finding

14

supported by the fact that when Cook finally confessed, he made only “vague admissions”

15

to “facts that minimize[d] his culpability for the crimes”). The interviews were short,

16

totaling approximately half an hour (RT 1/15/02 at 231), and Ellison responded coherently

17

to the detectives’ questions. Cf. Cook, 948 F.3d at 969 (interrogation lasted seven hours

18

before Cook confessed); State v. Fardan, 773 N.W.2d 303, 314-15 (Minn. 2009)

19

(upholding the Miranda waiver of a juvenile who claimed to have FASD and low

20

intellectual function but demonstrated no intimidation, confusion, or indecision during a

21

reading of Miranda warning or custodial interrogation).

22

In Cook, the California Supreme Court summarily denied the appellant’s claim that

23

his confession was not knowing, intelligent, and voluntary. 948 F.3d at 966. The Ninth

24

Circuit, applying AEDPA’s deferential standard, held that the state court “had a reasonable

25

basis” for rejecting Cook’s claim that his waiver wasn’t knowing and intelligent and that

26
27
28

29

Dr. Paul Connor, a neuropsychologist, testified during the PCR evidentiary hearing
that he measured Ellison’s full-scale IQ at 89, which contrasted with the higher scores of
around 100 that Ellison achieved when tested in school. (RT 8/18/14 at 68-69.)
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1

“Cook utterly fail[ed] to show how the conclusion that his confession was voluntary under

2

the totality of the circumstances is ‘inconsistent with the holding in a prior decision of the

3

Supreme Court.’” Id. at 968-69 (citations omitted).

4

For similar reasons, the PCR court’s ruling was not contrary to or an unreasonable

5

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

6

the facts.

7

f.

False Testimony

8

Ellison argues, “[i]n the alternative to Claims 52 and 53,” which allege violations

9

under Brady and Napue, that trial counsel was ineffective in failing to obtain and present

10

evidence that Watson’s and Auld’s testimony about his interrogation was false. (Doc. 21

11

at 286-87.) Ellison concedes he didn’t raise this ineffective-assistance claim in state court

12

but argues that its default is excused under Martinez by the ineffective assistance of PCR

13

counsel. (Id. at 287.)

14

As discussed above, the Brady and Napue claims are meritless. Therefore, neither

15

trial counsel, in failing to discover the withheld evidence or false testimony, nor PCR

16

counsel, in failing to raise a claim of trial counsel ineffectiveness, performed ineffectively.

17

Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016); Atwood, 870 F.3d at 1060.

18

“Cause” under Martinez is absent, so this claim is barred from federal review.

19

g.

Cumulative Prejudice

20

Ellison alleges that trial counsel’s guilt-phase errors, considered cumulatively with

21

the penalty-phase errors, prejudiced him at both stages of trial. (Doc. 21 at 287.) The

22

parties disagree whether this claim is exhausted. Whatever its procedural status, it is

23

meritless.

24

As noted, the Supreme Court has not specifically recognized the doctrine of

25

cumulative error as an independent basis for habeas relief. Lorraine, 291 F.3d at 447;

26

Morris, 677 F.3d at 1132 n.3. Although the Ninth Circuit has suggested that the cumulative

27

effect of several errors may prejudice a defendant, Parle, 505 F.3d at 927, here the Court

28

has identified no constitutional errors so there is nothing to accumulate to the level of a

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1

constitutional violation.

2

II.

Sentencing-Phase Claims

3

A.

4

In Claim 13, Ellison alleges that the evidence did not support the jury’s

5

Enmund/Tison findings. (Doc. 21 at 97-99.) Under Tison and Enmund, a defendant

6

convicted of felony murder can be sentenced to death only if he actually killed, attempted

7

to kill, or intended to kill, or if he was a major participant in the underlying felony and

8

acted with reckless indifference to human life. The jury determined that Ellison “either

9

killed, intended to kill, or acted with reckless indifference towards the life or death” of both

10

Claim 13

Mr. and Mrs. Boucher. (ROA, Vol. VI, Docs. 168, 169 [verdict forms].)

11

The Arizona Supreme Court rejected Ellison’s argument that the State failed to

12

prove he acted with reckless indifference. Ellison, 140 P.3d at 917-18. The court noted

13

that “Ellison . . . was not merely present during the burglary and subsequent murders. He

14

directly participated in binding the victims and holding a pillow over Mr. Boucher’s face.

15

A reasonable factfinder could conclude that Ellison acted at least with reckless indifference

16

to the victims’ lives.” Id.

17

Again, under Jackson, the question is whether any rational trier of fact could have

18

found that the Enmund/Tison requirements had been satisfied—namely, that Ellison was a

19

major participant in the burglary and acted with reckless indifference to the victims’ lives.

20

This standard is satisfied. Evidence showed that Ellison, like the defendants in Tison, “was

21

actively involved in every element” of the underlying crime and was “physically present

22

during the entire sequence of criminal activity culminating in the murder.” Tison, 481 U.S.

23

at 158. Ellison also, at the very least, “watched the killing” and then “chose to aid” Finch

24

“rather than their victims.” Id. at 152. Finally, the additional level of deference mandated

25

by AEDPA provides further reason why Ellison is not entitled to habeas relief. Cf. Dickens

26

v. Ryan, 740 F.3d 1302, 1316 (9th Cir. 2014) (“In Tison, the U.S. Supreme Court concluded

27

that the defendants exhibited reckless indifference, in part, because they watched the killing

28

and then chose to aid those whom they had placed in the position to kill rather than their

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1

victims. Nothing suggests the defendants in Tison knew anyone had survived. Rather, the

2

relevant factors were the defendants’ knowledge that victims had been shot and their

3

decision to aid the shooters over the victims. Dickens, like the Tison defendants, watched

4

Amaral shoot the Bernsteins, but decided to aid Amaral over the Bernsteins by picking him

5

up and driving him to his brother's home. There is no evidence that Dickens attempted to

6

aid the Bernsteins, summon medical assistance, or otherwise notify the authorities. Instead,

7

he helped Amaral. Because Dickens’s uncontested knowledge of the Bernsteins’ shooting,

8

rather than Bryan’s survival, is the critical factor in the Enmund/Tison reckless indifference

9

analysis, the Arizona Supreme Court did not base its decision on an unreasonable

10

determination of the facts.”) (cleaned up).

11

B.

Claims 14 and 15

12

In Claim 14, Ellison alleges that because his indictment “did not refer to capital

13

murder, aggravating circumstances, or otherwise reflect the State’s intention to seek a death

14

sentence,” he was not indicted for a capital crime, in violation of the Fifth, Sixth, and

15

Fourteenth Amendments. (Doc. 21 at 991-04.) In Claim 15, Ellison alleges that the State’s

16

failure to give proper, timely notice of the aggravating factors deprived him of his rights to

17

notice, the effective assistance of counsel, and reliable proceedings, in violation of the

18

Sixth, Eighth, and Fourteenth Amendments. (Doc. 21 at 104-06.) The Arizona Supreme

19

Court rejected these claims on direct appeal. Ellison, 140 P.3d at 918-19. As explained

20

below, those rulings were neither contrary to nor an unreasonable application of clearly

21

established federal law, nor were they based on an unreasonable determination of the facts.

22

The State filed an indictment in Mohave County Superior Court in March 1999

23

charging Ellison with two counts of first-degree murder and one count of first-degree

24

burglary. (ROA, Vol. I, Doc. 2.) On April 1, 1999, the State noticed its intent to seek the

25

death penalty. (ROA, Vol. I, Doc. 13.) On January 29, 2002, following Ellison’s

26

convictions, the State noticed its intent to prove six aggravating circumstances. (ROA,

27
28

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1

Vol. VI, Doc. 173.)30

2

The Fifth Amendment’s Grand Jury Clause, which guarantees indictment by a grand

3

jury in federal prosecutions, was not incorporated by the Fourteenth Amendment to apply

4

to the states. Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972) (“[I]indictment by grand

5

jury is not part of the due process of law guaranteed to state criminal defendants by the

6

Fourteenth Amendment . . . .”).

7

Although Ellison contends that Ring II and Apprendi v. New Jersey, 530 U.S. 466

8

(2000), support his position, in neither of those cases did the Supreme Court address this

9

issue, let alone hold that aggravating factors must be included in an indictment and

10

subjected to a probable cause determination. Ring II, 536 U.S. at 597 n.4 (“Ring does not

11

contend that his indictment was constitutionally defective.”); Apprendi, 530 U.S. at 477

12

n.3 (“Apprendi has not here asserted a constitutional claim based on the omission of any

13

reference to sentence enhancement . . . in the indictment.”). See also Williams v. Haviland,

14

467 F.3d 527, 532 (6th Cir. 2006) (noting that Apprendi and Ring II do not address any

15

“indictment requirements”). In addition, as the Arizona Supreme Court noted, the penalty

16

phase of Ellison’s trial ultimately occurred in 2004, two years after he received notice of

17

the aggravating factors, so he was not prejudiced by the timing of the disclosure.

18

C.

19

In Claim 16, Ellison alleges that he was deprived of his rights to a fair and impartial

20

jury, a fair trial, and due process when the trial court erroneously struck one prospective

21

juror for cause and failed to strike another. (Doc. 21 at 107-14.)

22

Claim 16

1.

Juror 19

23

Ellison alleges that the trial court violated his rights under Wainwright v. Witt, 469

24

U.S. 412 (1985), and Witherspoon v. Illinois, 391 U.S. 510 (1968), by striking Juror 19 for

25

cause based on her views about the death penalty. The Arizona Supreme Court denied this

26

claim on direct appeal.

Ellison, 140 P.3d at 920-21. The court first noted that jury

27
30

28

As the Arizona Supreme Court noted, under then-existing law, notice of aggravating
factors was required only after conviction. Ellison, 140 P.3d at 918.
- 92 -

1

selection for Ellison’s sentencing included both “extensive oral voir dire” and a

2

questionnaire asking whether the possibility of the death penalty would “prevent or

3

substantially impair” a potential juror’s ability to fairly decide Ellison’s sentence. Id. at

4

920. The court then turned to Ellison’s challenge to the dismissal of Juror 19.

5

The court explained that “[a] death sentence cannot be upheld if the jury was

6

selected by striking for cause those who ‘voiced general objections to the death penalty or

7

expressed conscientious or religious scruples against its infliction.’” Id. (quoting

8

Witherspoon, 391 U.S. at 522). The court noted, however, that a judge “may strike for

9

cause a potential juror whose views regarding the death penalty ‘would prevent or

10

substantially impair the performance of his duties as a juror.’” Id. (quoting Wainwright,

11

469 U.S. at 424). The court added: “Such views need not be proven with ‘unmistakable

12

clarity.’” Id. (quoting Wainwright, 469 U.S. at 424). The court also explained that “even

13

if a juror is sincere in his promises to uphold the law, a judge may still reasonably find a

14

juror’s equivocation ‘about whether he would take his personal biases in the jury room’

15

sufficient to substantially impair his duties as a juror, allowing a strike for cause.” Id.

16

(quoting State v. Glassel, 116 P.3d 1193, 1208 (Ariz. 2005)).

17

Applying these standards, the court concluded that Judge Moon did not abuse his

18

discretion in allowing the prosecution to strike Juror 19 for cause. Id. at 921. The court

19

explained that Juror 19 “expressed reservations and conflict about the death penalty. She

20

could not definitely say whether her beliefs would cause her to ignore the law. . . . [J]uror

21

19 gave statements indicating her beliefs could substantially impair her ability as a juror,

22

even though she also promised to uphold her oath.” Id. at 920–21.

23

This decision was neither contrary to nor an unreasonable application of clearly

24

established federal law, nor was it based on an unreasonable determination of the facts.

25

“In Witherspoon, [the Supreme] Court set forth the rule for juror disqualification in capital

26

cases.” White v. Wheeler, 577 U.S. 73, 77 (2015). Under that rule, capital defendants are

27

entitled to a jury not “uncommonly willing to condemn a man to die.” Witherspoon, 391

28

U.S. at 521. But the Supreme Court “with equal clarity has acknowledged the State’s

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1

‘strong interest in having jurors who are able to apply capital punishment within the

2

framework state law prescribes.’” Wheeler, 577 U.S. at 77 (quoting Uttecht v. Brown, 551

3

U.S. 1, 9 (2007)); see also Adams v. Texas, 448 U.S. 38, 45 (1980) (“The State may insist,

4

however, that jurors will consider and decide the facts impartially and conscientiously

5

apply the law as charged by the court.”).

6

A juror may be excused for cause if he or she is “substantially impaired in his or her

7

ability to impose the death penalty under the state-law framework.” Uttecht, 551 U.S. at 9

8

(citing Witt, 469 U.S. at 424). This standard is met “where the trial judge is left with the

9

definite impression that a prospective juror would be unable to faithfully and impartially

10

apply the law.” Witt, 469 U.S. at 425-26.

11

Juror 19, a female nurse, described herself during voir dire as “[p]retty much pro-

12

life.” (RT 2/4/04 at 140.) When Judge Moon asked if it would be “fair to say, based on

13

your questionnaire and kind of reading between the lines, that you do not favor the death

14

penalty,” Juror 19 responded: “I’m really pro-life. I am. So I don’t know if I could do the

15

death penalty or not. I’m being honest now. I don’t know if I could.” (Id.) Although

16

Juror 19 indicated she thought she could be open-minded and give both sides a “level

17

playing field,” she stated: “But I still don’t know if I would get—if it come [sic] to the

18

point could I be for the death penalty, I don’t know if I could do that. I might say no, I

19

can’t do that.” (Id. at 141.) She stated it was possible—she put the odds at 60/40— that

20

she would “ignore the law and the judge’s instructions” and vote for life even if the jury

21

found multiple aggravating factors and no mitigating circumstances. (Id. at 142-43.) At

22

other points she indicated she could “probably” follow the law but she “would still not feel

23

well about doing it. . . . It would be hard for me to do that.” (Id. at 145.) She continued:

24

“[I]t would still be really hard to vote for the death penalty, even if it’s all right there in

25

front of my nose.” (Id. at 146.) Toward the end of the questioning, the prosecutor asked

26

whether there was “a possibility that you would just disregard the law and vote against the

27

death penalty, even if the law was pretty clear.” (Id. at 148.) Juror 19 replied: “I might.”

28

(Id.) In granting the motion to strike, Judge Moon noted that Juror 19 “expressed several

- 94 -

1

times her concern about her ability to follow the law. So she went . . . beyond being against

2

the death penalty, but somebody saying she’s just not sure she can follow the law.” (Id. at

3

150.)

4

A state court’s determination that a juror’s views would substantially impair the

5

discharge of his or her duties is a factual finding entitled to a presumption of correctness

6

on federal habeas review. Witt, 469 U.S. at 426 (“[D]eference must be paid to the trial

7

judge who sees and hears the juror.”); Uttecht, 551 U.S. at 9 (“Deference to the trial court

8

is appropriate because it is in a position to assess the demeanor of the venire, and of the

9

individuals who compose it, a factor of critical importance in assessing the attitude and

10

qualifications of potential jurors.”). A trial court’s “finding may be upheld even in the

11

absence of clear statements from the juror that he or she is impaired. . . .” Uttecht, 551

12

U.S. at 7. Finally, AEDPA requires an additional, “independent, high standard” of

13

deference. Id. at 10.

14

In Uttecht, the Court clarified that “[t]he need to defer to the trial court’s ability to

15

perceive jurors’ demeanor does not foreclose the possibility that a reviewing court may

16

reverse the trial court’s decision where the record discloses no basis for a finding of

17

substantial impairment.” Id. at 20. However, where there has been “lengthy questioning

18

of a prospective juror and the trial court has supervised a diligent and thoughtful voir

19

dire, the trial court has broad discretion.” Id. Here, there was a diligent and thoughtful

20

voir dire process, which included the completion of a questionnaire and examination of

21

potential jurors by the court and the parties. The questioning of Juror 19 occurred over 11

22

transcript pages. (RT 2/4/04 at 139-50.) Judge Moon therefore had broad discretion and

23

the record supports his finding of substantial impairment based on Juror 19’s answers on

24

the questionnaire and during voir dire.

25

“A juror’s voir dire responses that are ambiguous or reveal considerable confusion

26

may demonstrate substantial impairment.” United States v. Fell, 531 F.3d 197, 215 (2d

27

Cir. 2008). “[A]ssurances that [the juror] would consider imposing the death penalty and

28

would follow the law do not overcome the reasonable inference from his other statements

- 95 -

1

that in fact he would be substantially impaired in this case . . . .” Uttecht, 551 U.S. at 18.

2

“Because appellate judges are absent from voir dire, when a prospective juror fails to

3

express herself ‘carefully or even consistently . . . it is [the trial] judge who is best situated

4

to determine competency to serve impartially.’” United States v. Allen, 605 F.3d 461, 466

5

(7th Cir. 2010) (quoting Patton v. Yount, 467 U.S. 1025, 1039 (1984)). Juror 19’s

6

statements were not always consistent, or even coherent, but she did persistently indicate

7

that her “pro-life” views would make it difficult or impossible for her to vote for

8

a death sentence. Judge Moon thus “properly considered all of [Juror 19’s] responses in

9

the context in which they were given and did not err in concluding that [her] views would

10

significantly interfere with [her] duties as juror.” Fell, 531 F.3d at 215. To the extent any

11

ambiguity remained in Juror 19’s attitude about the death penalty after her questioning by

12

the parties, Judge Moon was “entitled to resolve it in favor of the State.” Uttecht, 551 U.S.

13

at 7 (quoting Witt, 469 U.S. at 434).

14

2.

Juror 17

15

Ellison also argues that the trial court erred in refusing to strike Juror 17 for cause

16

due to his pro-death-penalty views. The Arizona Supreme Court considered and rejected

17

this claim. Ellison, 140 P.3d at 921 n.16 (“Ellison also appeals Judge Moon’s denial of his

18

motion to strike potential juror 17 for cause. Juror 17 did not ultimately sit on the jury;

19

thus, any error is harmless.”). As explained below, this determination was not contrary to

20

or an unreasonable application of clearly established federal law.

21

Although a defendant has a “due process right to remove for cause a juror who will

22

automatically vote for the death penalty,” United States v. Mitchell, 502 F.3d 931, 954 (9th

23

Cir. 2007) (citing Morgan v. Illinois, 504 U.S. 719 (1992)), failure to strike a biased juror

24

does not violate a defendant’s rights when the juror did not sit on the jury, even if the

25

defendant had to use a peremptory challenge to strike him. “So long as the jury that sits is

26

impartial, . . . the fact that the defendant had to use a peremptory challenge to achieve that

27

result does not mean the Sixth Amendment was violated.” United States v. Martinez-

28

Salazar, 528 U.S. 304, 313 (2000). Juror 17 did not sit on Ellison’s jury, so he is not

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1

entitled to relief on this claim.31

2

D.

Claim 17

3

In Claim 17, Ellison alleges that his rights to a jury trial, to have his sentencing jury

4

consider all relevant evidence, and to due process were violated because he was sentenced

5

by a “jury that did not adjudicate his guilt.” (Doc. 21 at 115-18.)

6

On direct appeal, the Arizona Supreme Court rejected Ellison’s argument that the

7

use of a separate sentencing jury deprived him of his right to an individualized sentence.

8

Ellison, 140 P.3d at 919. The court noted that it had previously denied such claims and

9

explained that “Ellison cannot complain that evidence relevant to sentencing was presented

10

at the guilt proceeding” because “nothing prevented him from introducing evidence from

11

the guilt proceeding at his sentencing proceeding.” Id. (citing State v. Anderson, 111 P.3d

12

369 (Ariz. 2005)). The court also rejected Ellison’s argument that the guilt-phase jury was

13

impermissibly allowed to shift responsibility to the sentencing jury. Id.

14

Ellison cites no clearly established federal law holding that the use of a separate

15

sentencing jury in a capital case violates a defendant’s constitutional rights. Nor has the

16

Court, through its own research, found any such authority. Powell v. Quarterman, 536 F.3d

17

325, 334 (5th Cir. 2008) (noting that “no clearly established law decided by the Supreme

18

Court” requires “the same jury to determine guilt and punishment”); Mitchell v. Sharp, 798

19

F.App’x 183, 197-98 (10th Cir. 2019) (“Mr. Mitchell . . . alleges a due process right to

20

have the same jury decide both guilt and punishment in a capital case. . . . Because there

21

is no clearly established federal law to resolve Mr. Mitchell’s . . . claim, . . . our analysis

22

ends.”) (cleaned up).
…

23
24
25
26
27
28

Ellison also asserts that the trial court’s “disparate treatment” of Juror 17’s
“waffling” on whether he could consider mitigating evidence and Juror 19’s “failure to
guarantee that she could return a death verdict” “demonstrates that [the court] applied a
standard to [Juror 19] that was more restrictive than Witt and Witherspoon allow.” (Doc.
21 at 112.) This argument does not alter the Court’s analysis of the Arizona Supreme
Court’s decision under § 2254(d).
31

- 97 -

1

E.

2

In Claim 18, Ellison alleges that being “subjected to a second trial, with a different

3

jury, on the issue of aggravation and punishment” violated the Double Jeopardy Clause.

4

(Doc. 21 at 118-20.) Quoting Wade v. Hunter, 336 U.S. 684, 689 (1949), Ellison argues

5

that the use of a second jury for sentencing violated his “valued right to have his trial

6

completed by a particular tribunal.” (Id.)

Claim 18

7

The Arizona Supreme Court’s denial of this claim on direct review, Ellison, 140

8

P.3d at 919, relied on its earlier decision in Ring v. Arizona (“Ring III”), 65 P.3d 915 (Ariz.

9

2003), which cited Arizona v. Rumsey, 467 U.S. 203 (1984), Poland v. Arizona, 476 U.S.

10

147 (1986), and Sattazahn v. Pennsylvania, 537 U.S. 101, 109 (2003), for the proposition

11

that double jeopardy does not bar a capital defendant from being resentenced to death when

12

he was not “acquitted” of death in the original sentencing. Ring III, 65 P.3d at 932. The

13

Ring III court also noted that in Wade itself, the Supreme Court denied a double jeopardy

14

claim where charges were dropped in one military tribunal and reinstituted in another. Id.

15

(citing Wade, 336 U.S. at 687-88). The Ring III court thus reasoned that “[t]he ability to

16

resentence a capital defendant by a different set of jurors is implicit” in Rumson, Poland,

17

and Wade. Id.

18

Ellison has not demonstrated that the Arizona Supreme Court’s analysis of this issue

19

was contrary to, or an unreasonable application of, clearly established federal law. See,

20

e.g., Hampton v. Ryan, 2019 WL 979896, *24 (D. Ariz. 2019) (“No clearly established

21

federal law holds that empaneling a second jury for sentencing implicates the Double

22

Jeopardy Clause.”); Garcia v. Shinn, 2022 WL 1166408, *41-42 (D. Ariz. 2022) (same).

23

F.

24

In Claim 19, Ellison alleges that his due process rights were violated when a death

25

sentence was imposed “pursuant to a statute not in effect at the time of [his] trial.” (Doc.

26

21 at 121-24.) The Arizona Supreme Court denied this claim on direct review. Ellison,

27

140 P.3d at 920.

28

Claim 19

Ellison relies on Coleman v. McCormick, 874 F.2d 1280 (9th Cir. 1989). There, the

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1

defendant was originally tried and convicted under a statute which provided for a

2

mandatory death sentence whenever a defendant was found guilty of aggravated

3

kidnapping.

4

unconstitutional because it did not allow the trial court to consider any mitigating

5

circumstances. Id. The court remanded the case for resentencing in accordance with a

6

newly-enacted statute that provided for a separate sentencing hearing at which the judge

7

would determine the existence of any aggravating and mitigating circumstances. Id. If the

8

judge found at least one aggravating factor and determined there were no mitigating

9

circumstances sufficiently substantial to call for leniency, he would be required to impose

10

a death sentence. Id. at 1285. Coleman was again sentenced to death. Id. In reversing the

11

sentence, the Ninth Circuit explained:

Id. at 1282. On appeal, the state supreme court held the law was

14

The defendant is due at least that amount of process which enables him to
put on a defense during trial knowing what effect such a strategy will have
on the subsequent capital sentencing, the results of which may be equally if
not more critical to the defendant than the conviction itself.

15

Id. at 1288. Because the defendant “made countless tactical decisions at trial aimed solely

16

at obtaining [his] acquittal, without even a hint that evidence . . . would be considered as

17

either mitigating or aggravating factors,” the due process violation was pervasive and not

18

harmless error. Id. at 1289.

12
13

19

No such due process violation occurred here. “Ring II impacted only the identity of

20

the trier of fact at sentencing, not the process itself.” State v. Murdaugh, 97 P.3d 844, 853

21

(Ariz. 2004). Unlike the defendant in Coleman, Ellison was aware during the guilt phase

22

of his trial that if he were convicted there would be a sentencing phase involving the

23

presentation of aggravating and mitigating factors. Although the sentencer changed from

24

the trial judge to a jury, Ellison had two years after his conviction to prepare for his for

25

sentencing before a jury.

26

At a minimum, Ellison fails to cite any clearly established federal law that would

27

render the Arizona Supreme Court’s denial of this claim unreasonable under § 2254(d)(1).

28

…

- 99 -

1

G.

Claim 20

2

In Claim 20, Ellison alleges that the “especially cruel, heinous, or depraved”

3

aggravating circumstance is “unconstitutionally vague in light of Ring and violates the

4

Eighth Amendment.” (Doc. 21 at 124-27.) On direct appeal, the Arizona Supreme Court

5
6
7
8

rejected this argument, including the argument that the shift from judge to jury sentencing
rendered the factor vague. Ellison, 140 P.3d at 921-22. That decision was neither contrary
to nor an unreasonable application of clearly established federal law, nor was it based on
an unreasonable determination of the facts.

9

In Walton v. Arizona, 497 U.S. 639 (1990), overruled on other grounds by Ring II,

10

536 U.S. 584, the Supreme Court held that Arizona’s “especially heinous, cruel or

11

depraved” aggravating circumstance was facially vague but also held that the vagueness

12

was remedied by the Arizona Supreme Court’s clarification of the factor’s meaning. Id. at

13

654 (“In this case there is no serious argument that Arizona’s ‘especially heinous, cruel or

14
15
16

depraved’ aggravating factor is not facially vague. But the Arizona Supreme Court has
sought to give substance to the operative terms, and we find that its construction meets
constitutional requirements.”). Under the narrowing definition approved in Walton, a

17

murder is especially cruel “when the perpetrator inflicts mental anguish or physical abuse

18

before the victim’s death” and that “mental anguish includes a victim’s uncertainty as to

19

his ultimate fate.” Id. (citation omitted). That definition, the Court concluded, was

20

“constitutionally sufficient because it gives meaningful guidance to the sentencer.” Id. at

21

655.

22
23

Here, the jury received the following instruction regarding the especially-cruel
factor32:

24

In order to find that the especially cruel aggravating circumstance is present
as to either murder, you must find that the State has proven beyond a
reasonable doubt that the murder was especially cruel due to the infliction of

25
26
27
28

As Ellison notes, “[t]he trial court granted a motion for judgment of acquittal as to
the heinous/depraved prong of the aggravating circumstance, but sent cruelty to the jury.”
(Doc. 21 at 125, citing RT 2/9/04 at 86.)
32

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1

either extreme physical pain or extreme mental anguish upon that victim.

2

In order to find extreme physical pain, the State must prove each of the
following three things:

3

No. 1, the victim suffered extreme physical pain.

4

And, No. 2, the defendant caused the victim to suffer this extreme physical
pain.

5
6

And, No. 3, the defendant intended or knew that the victim would suffer this
extreme physical pain.

7

Extreme physical pain means that all three of the following are true:

8

No. 1, the victim was alive and conscious when he or she experienced the
pain.

9
10

And, No. 2, the pain was great and extreme.

11

And, No. 3, the pain was more than brief in duration and was not merely
incidental to a quick death.

12
13

In order to prove extreme mental anguish, the State must prove each of the
following three things.

14

No. 1, the victim experienced extreme mental anguish while conscious.

15

And, No. 2, the defendant caused the victim to experience this extreme
mental anguish.

16

And, No. 3, the defendant intended or knew that the victim would experience
this extreme mental anguish.

17
18

Extreme mental anguish means that the victim experienced extreme fear or
extreme anxiety by being made aware that he or she was going to die.

19
20

(RT 2/9/04 at 99-100.) These instructions satisfy Walton’s narrowing requirements.

21

Despite this, Ellison contends that Walton was premised on the fact that the Arizona

22

judges who made the sentencing decisions at that time were presumed to know and apply

23

the law, including the narrowed construction of the especially-cruel factor. (Doc. 21 at

24

125.)

25

sentencing.” (Id.)

Thus, Ellison contends that “Walton does not apply in the context of jury

26

This argument is unavailing. Ellison cites no clearly established federal law holding

27

that the transition to jury sentencing affects this analysis, and the Ninth Circuit has rejected

28

the argument that habeas relief is available in this circumstance. Smith v. Ryan, 823 F.3d

- 101 -

1

1270, 1294-95 (9th Cir. 2016) (“In an effort to avoid the U.S. Supreme Court decisions

2

approving Arizona’s narrowing construction, Smith argues that [Ring II] implicitly

3

overruled Walton on this point because it held that jurors rather than judges must find

4

aggravating factors, thereby abrogating Walton’s contrary determination. . . . Smith’s

5

argument does not support granting habeas relief. . . . Irrespective of whether invalidation

6

of the jury instructions in Walton . . . is the logical next step after Ring, the [Supreme]

7

Court has not yet taken that step, and there are reasonable arguments on both sides—which

8

is all Arizona needs to prevail in this AEDPA case.”) (cleaned up). See also Dixon v. Ryan,

9

2016 WL 1045355, *45 (D. Ariz. 2016), aff’d, 932 F.3d 789 (9th Cir. 2019) (“There is no

10

clearly established federal law holding that jury instructions based on the Arizona Supreme

11

Court’s narrowing construction are inadequate. . . .”).

12

H.

13

In Claim 21, Ellison alleges that the trial court’s accomplice-liability instruction

14

“permitted the jury to impute Finch’s conduct to Ellison for purposes of establishing [three]

15

aggravating circumstances, in violation of the narrowing requirement of the Eighth

16

Amendment.” (Doc. 21 at 128-31.)

Claim 21

17

During the aggravation phase of trial, the court instructed the jury as follows:

18

A person is criminally accountable for the conduct of another if the person is
an accomplice of such other person in the commission of the offense. An
accomplice is a person who, with intent to promote or facilitate the
commission of an offense, aids, counsels, agrees to aid, or attempts to aid
another person in planning or committing the offense.

19
20
21
22

(RT 2/9/04 at 101-02.)
With respect to the three aggravating factors at issue here (pecuniary gain, especially

23
24
25
26
27
28

cruel, and multiple murders),33 the court’s more specific instructions were as follows: (1)
“In order to find that the pecuniary gain aggravating circumstance is present as to either
murder, you must find . . . that the expectation of pecuniary gain was the defendant’s
33

Although the trial court provided instructions on more than three aggravating
circumstances, Ellison only contends that “[t]hree aggravating circumstances were
impermissibly applied to [him] based on Finch’s conduct.” (Doc. 21 at 128.)
- 102 -

1
2
3
4
5
6
7
8
9
10

motive, cause, or impetus for the murder”; (2) “In order to find that the especially cruel
aggravating circumstance is present as to either murder, you must find . . . [inter alia] the
defendant caused the victim to [suffer] this extreme physical pain [and extreme mental
anguish] . . . [and] the defendant intended or knew that the victim would suffer this extreme
physical pain [and extreme mental anguish]”; and (3) “In order to find that the other murder
aggravating circumstance is present as to either murder, you must find . . . that the
defendant committed another murder during the commission of the murder for which the
State is seeking the death penalty.” (Id. at 98-100.)
The Arizona Supreme Court held that the accomplice instruction “properly required
the jury to find Ellison had the specific intent to promote or facilitate the offense that he

11

actually aided, counseled, agreed to aid, or attempted to aid.” Ellison, 140 P.3d at 921.

12

The court also found that the “instructions for the especially cruel and pecuniary gain

13

aggravators properly focused on Ellison’s personal intent and motivation. They did not

14

tell the jury to impute Finch’s intent to Ellison.” Id. Finally, with respect to the multiple-

15

murders aggravating factor, the court explained that the statute “requires only that the

16

defendant be convicted of ‘one or more other homicides . . . which were committed during

17

the commission of the offense.’ Here, Ellison was convicted of both premeditated murder

18

and felony murder for each victim,” thus satisfying the intent element for both murders.

19
20
21

Id. (citing A.R.S. § 13-703(F)(8)).
Ellison argues that this decision was contrary to and an unreasonable application of
clearly established federal law. (Doc. 21 at 128.) He contends that an accomplice liability

22

instruction can never “be constitutionally delivered during the aggravation phase of a

23

sentencing proceeding.” (Doc. 38 at 83.) He further argues that the instructions in his case

24

led the jury to impermissibly apply the aggravating factors to him based on Finch’s

25
26
27
28

conduct. (Doc. 21 at 128-31.)
These arguments lack merit. Ellison cites no authority (let alone clearly established
federal law) for the proposition that accomplice liability is inapplicable at the aggravation
stage of a capital sentencing, and the Court has found none. Additionally, Ellison’s
- 103 -

1

assertion that the accomplice instruction allowed Finch’s conduct to be imputed to him is

2

belied by the record (and, at a minimum, the Arizona Supreme Court did not act

3

unreasonably by concluding otherwise).

4

On federal habeas review of a claim of instructional error by a state court, federal

5

courts are bound by a state court’s interpretation of state law. Richey, 546 U.S. at 76 (“We

6

have repeatedly held that a state court’s interpretation of state law, including one

7

announced on direct appeal of the challenged conviction, binds a federal court sitting in

8

habeas corpus.”); Estelle, 502 U.S. at 71-72 (the assertion that a jury instruction “was

9

allegedly incorrect under state law is not a basis for habeas relief”). Federal habeas relief

10

based on instructional error is warranted only if the petitioner shows “both that the

11

instruction was ambiguous and that there was a reasonable likelihood that the jury applied

12

the instruction in a way that relieved the State of its burden of proving every element of

13

the crime beyond a reasonable doubt.’” Waddington v. Sarausad, 555 U.S. 179, 190-91

14

(2009) (quoting Estelle, 502 U.S. at 73 n.4). “Our habeas precedent places an ‘especially

15

heavy’ burden on a defendant who . . . seeks to show constitutional error from a jury

16

instruction that quotes a state statute.” Id. at 190. In making this determination, “the

17

instruction ‘may not be judged in artificial isolation,’ but must be considered in the context

18

of the instructions as a whole and the trial record.” Estelle, 502 U.S. at 72 (quoting Cupp

19

v. Naughten, 414 U.S. 141, 147 (1973)). The Supreme Court has explained that “not every

20

ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due

21

process violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam). “[I]t is

22

not enough that there is some ‘slight possibility’ that the jury misapplied the instruction.”

23

Waddington, 555 U.S. at 191 (quoting Weeks v. Angelone, 528 U.S. 225, 236 (2000)).

24

Rather, “the pertinent question ‘is whether the ailing instruction by itself so infected the

25

entire trial that the resulting conviction violates due process.’” Id. (quoting Estelle, 502

26

U.S. at 72).

27

Viewing the jury instructions as a whole along with the trial record, and taking into

28

account that this Court is bound by the Arizona Supreme Court’s interpretation of Arizona

- 104 -

1

law, Ellison is not entitled to relief. The instructions were not erroneous under Arizona

2

law. Nor did they permit the jury to impute Finch’s action to Ellison. The accomplice

3

instruction provided that Ellison himself must have acted with “intent to promote or

4

facilitate” the murders. In addition, the instructions with respect to the three aggravating

5

circumstances at issue required the jury to “focus on Ellison’s personal intent and

6

motivation.” Ellison, 140 P.3d at 921. Thus, the accomplice liability instruction did not

7

‘by itself so infect[]’ the proceedings that Ellison’s sentence violates due process.

8

Waddington, 555 U.S. at 191.

9

Ellison relies on Robinson v. Schriro, 595 F.3d 1086 (9th Cir. 2010), for the

10

proposition that “[t]here is no vicarious liability for cruelty in capital cases absent a plan

11

intended or reasonably certain to cause suffering.” (Doc. 21 at 130.) But Robinson and

12

the case on which it relied, State v. Carlson, 48 P.3d 1180 (Ariz. 2002), involved factual

13

scenarios that are readily distinguishable from this case.

14

In Carlson, the defendant ordered the killing of the victim by two accomplices

15

whom she drove to the victim’s apartment. 48 P.3d at 1185. One of the accomplices closed

16

his eyes before stabbing the victim multiple times, causing the victim to suffer both

17

mentally and physically. Id. The Arizona Supreme Court held that “cruelty was not

18

properly found” by the trial court because the defendant was not a witness to the murder,

19

“did not plan how the murder would be committed and could not have known that [the

20

accomplice] would bungle it by closing his eyes while he repeatedly stabbed [the victim].”

21

Id. at 1193.

22

Similarly, in Robinson, there was no evidence that the defendant was present at the

23

murder, planned for the manner of the murder, or planned that the murder be committed at

24

all. 595 F.3d at 1106. There was “no basis to conclude that Robinson’s home-invasion

25

plan was reasonably certain to cause death, let alone death following suffering,” nor could

26

Robinson “have foreseen with any certainty that his accomplices would ‘bungle’ the home

27

invasion and murder [the victim] in the manner they did.” Id.

28

In contrast to those cases, Ellison was not only present at the murders but admitted

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1

to binding both victims and holding a pillow over Mr. Boucher’s face. His actions directly

2

caused “mental anguish” sufficient to satisfy the “especially cruel” aggravating factor.

3

Ellison, 140 P.3d at 925. He also directly participated in the “a plan intended or reasonably

4

certain to cause suffering,” which was “absent” in Robinson and Carlson. Robinson, 595

5

F.3d at 1105.

6

I.

7

In Claim 22, Ellison alleges that the application of the especially-cruel, pecuniary-

8

gain, and multiple-murders aggravating circumstances violated his rights under the Sixth,

9

Eighth, and Fourteenth Amendments. (Doc. 21 at 131-41.) The Arizona Supreme Court,

10

independently reviewing Ellison’s death sentence, rejected his contention that those factors

11

were not supported by the evidence. Ellison, 140 P.3d at 924-27. Ellison now argues that

12

the court’s decision was contrary to and an unreasonable application of clearly established

13

federal law and based on an unreasonable determination of the facts. (Doc. 21 at 131.)

Claim 22

14

Whether a state court misapplied an aggravating factor to the facts of a case is a

15

question of state law. Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Federal habeas review

16

of a state court’s application of an aggravating factor is not some “sort of de novo review”

17

but instead “is limited, at most, to determining whether the state court’s finding was so

18

arbitrary or capricious as to constitute an independent due process or Eighth Amendment

19

violation.” Id.

20

In Jeffers, the Supreme Court held that the appropriate standard for federal habeas

21

review of a state court’s application of an aggravating circumstance is the “rational

22

factfinder” test: “whether, after viewing the evidence in the light most favorable to the

23

prosecution, any rational trier of fact could have found the essential elements” of the

24

aggravating factor. Id. (quoting Jackson, 443 U.S. at 319). If the facts support conflicting

25

inferences, reviewing courts “must presume—even if it does not affirmatively appear in

26

the record—that the trier of fact resolved any such conflicts in favor of the prosecution,

27

and must defer to that resolution.” Cavazos, 565 U.S. at 6 (quoting Jackson, 443 U.S. at

28

326).

- 106 -

1

Additionally, as noted above, AEDPA requires federal courts to apply “additional

2

deference” to Jackson sufficiency-of-the-evidence claims. Coleman, 566 U.S. at 651

3

(“Jackson claims face a high bar in federal habeas proceedings because they are subject to

4

two layers of judicial deference.”); Parker v. Matthews, 567 U.S. 37, 43 (2012) (noting

5

“this twice-deferential standard”). The Ninth Circuit has stated that this “double dose of

6

deference . . . can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964-65 (9th

7

Cir. 2011).

8

1.

Especially Cruel

9

During the aggravation phase of trial, Judge Moon instructed the jury on the

10

especially-cruel prong of the “especially cruel, heinous or depraved” factor. (RT 2/9/04 at

11

99-100.)34 The jury found that the factor had been proved and the Arizona Supreme Court

12

agreed on direct appeal. Ellison, 140 P.3d at 925 (“The State proved the especially cruel

13

aggravator based on extreme mental anguish beyond a reasonable doubt.”).

14

“In order to show a murder was especially cruel, the State must prove beyond a

15

reasonable doubt that the victim suffered either physical pain or mental distress.” Id. at

16

924. “The defendant must intend that the victim suffer or reasonably foresee that there is

17

a substantial likelihood that the victim will suffer as a consequence of the defendant’s acts.”

18

Id. at 925 (quotation omitted). The Arizona Supreme Court “examine[s] the entire murder

19

transaction and not simply the final act that killed the victim.” Id. (quotation omitted).

20

Especially-cruel cruelty can be proved by showing the victim suffered physical pain or

21

mental anguish. Id. at 924-25. “Mental anguish is established if the victim experienced

22

significant uncertainty as to her ultimate fate, or if the victim was aware of a loved one’s

23

suffering.” Id. at 925 (quotation omitted). In its independent review of this factor, the

24

Arizona Supreme Court found that “the evidence here establishes that the victims were

25

conscious when they were bound and aware of each other’s suffering. The evidence also

26
27
28

“[T]he (F)(6) aggravator is stated in the disjunctive, indicating that evidence of any
one of the statutory prongs, ‘heinous,’ ‘cruel,’ or ‘depraved’ will support a finding that the
(F)(6) aggravator is present.” State v. Cromwell, 119 P.3d 448, 456 (Ariz. 2005).
34

- 107 -

1

establishes that the Bouchers were uncertain as to their ultimate fate after being attacked

2

and bound by two men in their own house at night, and they then heard one ordering the

3

other to kill Mr. Boucher.” Id.

4

Ellison asserts that the finding of mental anguish was unsupported. (Doc. 21 at 132-

5

35.) He also argues that any suffering was too brief to satisfy the especially-cruel factor.

6

(Id. at 134.)

7

As noted, this Court must apply two levels of deference to its assessment of the

8

Arizona Supreme Court’s determination that the especially-cruel factor was proved. The

9

Court first concludes that a rational factfinder, viewing the evidence in the light most

10

favorable to the prosecution, could have found that the victims suffered mental anguish.

11

Jeffers, 497 U.S. at 780; Jackson, 443 U.S. at 319. The jury heard testimony that when

12

Ellison entered the house (at which point Finch had already been inside for 10 minutes),

13

Mrs. Boucher was in the living room and Mr. Boucher was in the bedroom. (RT 2/9/04 at

14

10.) Upon entry, Ellison gathered cords and tape to be used to “tie up the Bouchers.” (Id.)35

15

Mrs. Boucher was then ordered to go to the bedroom and sit on the floor. (Id. at 11.) Finch

16

then pulled out a gun and instructed Ellison to it to “kill the old man.” (Id.) Finch then

17

strangled Mrs. Boucher while Ellison held a pillow over Mr. Boucher’s face “for a period

18

of time.” (Id. at 11-12.) Ellison then removed the pillow while Mr. Boucher’s “chest was

19

still moving” and “told [Finch] that he would have to finish him off.” (Id. at 12.)

20

Additionally, when her body was discovered, Mrs. Boucher had bruises and blood on her

21

face. (RT 2/6/04 at 139.) From these facts, a rational factfinder could easily find that the

22

victims suffered mental anguish, consisting of both significant uncertainty as to their

23

ultimate fate and awareness of a loved one’s suffering.

24

That conclusion is reinforced by the second level of deference required under

25

AEDPA. The Arizona Supreme Court’s determination that the especially-cruel factor was

26
27
28

Although Ellison initially denied that he personally tied up the Bouchers, “[l]ater in
the interview he did say that he had actually assisted [Finch] in tying up both of the
Bouchers.” (RT 2/9/04 at 13.)
35

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1

proved was not “objectively unreasonable.” Cavazos, 565 U.S. at 6.

2

2.

Pecuniary Gain

3

Under the law in effect at all relevant times, an aggravating factor existed where

4

“[t]he defendant committed the offense as consideration for the receipt, or in expectation

5

of the receipt, of anything of pecuniary value.”36

6

“Under Arizona law, a finding that a murder was motivated by pecuniary gain for

7

purposes of section 13-703(F)(5) must be supported by evidence that the pecuniary gain

8

was the impetus for the murder, not merely the result of the murder.” Moormann v. Schriro,

9

426 F.3d 1044, 1054 (9th Cir. 2005). However, “pecuniary gain aggravation does not

10

require a motive to kill. Aggravation under this factor may also be based upon a causal

11

connection between the pecuniary gain objective and the killing.” State v. Canez, 42 P.3d

12

564, 590 (Ariz. 2002), supplemented, 74 P.3d 932 (Ariz. 2003). “The needed connection

13

between expectation of pecuniary gain and a motive for murder often results from a finding

14

that one of the defendant’s motives in committing the murder was to facilitate the taking

15

of or ability to retain items of pecuniary value.” State v. Sansing, 26 P.3d 1118, 1125 (Ariz.

16

2001), vacated on other grounds, 536 U.S. 954 (2002). In Sansing, the Arizona Supreme

17

Court explained that “an unexpected or accidental death that occurs during the course of or

18

flight from a robbery, but which was not committed in furtherance of pecuniary gain, does

19

not provide sufficient basis for an F.5 finding. Similarly, the sole fact that a defendant

20

takes items or money from the victim does not establish pecuniary gain as a motive for the

21
22
23
24
25
26
27
28

36

In 2019, Arizona repealed and replaced this factor. State v. Greene, 527 P.3d 322,
331 (Ariz. 2023) (“With respect to § 13-751(F)(5), the legislature amended its language,
combined it with the § 13-751(F)(4) aggravating circumstance, and renumbered the new
provision as § 13-751(F)(3).”). Under the new version, an aggravating factor exists where:
“The defendant procured the commission of the offense by payment, promise of payment,
or anything of pecuniary value, or the defendant committed the offense as the result of
payment, or a promise of payment, or anything of pecuniary value.” A.R.S. § 13-751(F)(3).
The new factor is “prospective only” and does “not provide a basis for relief” for capital
sentences that were constitutionally imposed before the amendment. Greene, 527 P.3d at
328.
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1

murder.” Id. In other words, Arizona law distinguishes between cases in which “one of

2

the defendant’s motives in committing the murder was to facilitate the taking of or ability

3

to retain items of pecuniary value” and cases of “robberies gone bad.” Id. The Arizona

4

Supreme Court has explained, however, that when “the killing and robbery take place

5

almost simultaneously, we will not attempt to divine the evolution of the defendant’s

6

motive in order to discern when, or if, his reason for harming the victim shifted from

7

pecuniary gain to personal ‘amusement’ or some other speculative nonpecuniary drive.”

8

Canez, 42 P.3d at 591.

9

Ellison first argues that “the evidence adduced at the sentencing phase did not

10

support a finding that the murders themselves—rather than the burglary more broadly—

11

were committed in the expectation of pecuniary gain.” (Doc. 21 at 135.) The Arizona

12

Supreme Court rejected this argument:

13
14
15
16
17
18
19
20
21
22
23
24
25

The record demonstrates that Ellison’s motive for the murders was to
facilitate the burglary. Ellison admits going to the Bouchers’ home with the
intent to commit a burglary. Evidence showed that Ellison was familiar with
both the area and the Bouchers. He and Finch wore gloves while inside the
Bouchers’ home but did not attempt to disguise their identities. Although
Ellison argued he did not intend to kill anyone and that Finch forced him to
participate in the murders at gunpoint, the State presented contrary evidence.
We find this evidence establishes that Ellison planned the burglary and, in
order to escape and avoid identification, killed the Bouchers.
Ellison also argues that the evidence the victims were bound actually
supports the conclusion that the burglary was complete before the victims
were killed. Thus, there was a different motive for the murders. This
argument is not persuasive. Ellison admitted to police that Finch and he took
property from the Bouchers’ bodies and residence after they were killed.
Moreover, if Ellison was motivated to kill the Bouchers in order to avoid
identification, it does not matter whether the burglary or the murders
occurred first.
Ellison, 140 P.3d at 926.

26

These conclusions were not unreasonable. As Respondents note, despite Ellison’s

27

assertion that Finch planned the burglary and picked the Bouchers’ house, it was Ellison

28

who was familiar with the Kingman neighborhood where the Bouchers lived because it

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was only two blocks from his parents’ home, and in fact Ellison had personally interacted

2

with the Bouchers when he worked on their house. (RT 2/6/04 at 108.) Ellison admitted

3

that he used his girlfriend’s van to drive to Kingman with Finch. (RT 2/9/04 at 16.) Ellison

4

also supplied the latex gloves worn during the crimes. (Id.) It was thus reasonable for the

5

Arizona Supreme Court to determine that “this evidence establishes that Ellison planned

6

the burglary and, in order to escape and avoid identification, killed the Bouchers.” Ellison,

7

140 P.3d at 926 (citations omitted).

8

Sansing is not to the contrary. There, the Arizona Supreme Court rejected the

9

argument that the defendant murdered the victim in order to “facilitate escape and hinder

10

detection by the police.” 26 P.3d at 1127. The court noted that, after the murder, Sansing

11

left the victim’s body in his backyard (where it was visible over a fence) and then drove to

12

his sister’s home to confess. Id. The court also noted that killing the victim “did not

13

eliminate the only witness to the crime: the defendant’s wife and their children were present

14

during the entire chain of events.” Id. This case is easily distinguishable. Even though,

15

as Ellison emphasizes, Ellison may not have disguised his identify when speaking with the

16

bartender at a bar near the Bouchers’ house (Doc. 21 at 137), the bottom line is that he and

17

Finch killed the only two witnesses to the burglary.

18

Notably, Sansing cited State v. Greenway, 823 P.2d 22 (Ariz. 1991), as a case where

19

a “murder committed to facilitate escape and/or hinder detection by police furthers the

20

pecuniary interest of the criminal.” Sansing, 26 P.3d at 1126. “In Greenway, the defendant

21

murdered his victims execution-style after robbing their home. Greenway entered the

22

home knowing the victims were present and made no attempt to disguise his identity; the

23

practical effect of the murders was to eliminate the only witnesses to the crime.” Sansing,

24

26 P.3d at 1126. It was reasonable for the Arizona Supreme Court to conclude that the

25

same was true here.

26

Ellison also argues that the jury’s consideration of pecuniary gain “resulted in

27

impermissible double counting,” with burglary serving both as the predicate offense for

28

felony murder and as an aggravating factor. (Doc. 21 at 138-39.) Ellison asserts that under

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1

these circumstances the pecuniary gain factor does not “genuinely narrow the class of

2

persons eligible for the death penalty.” (Id. at 139, quoting Zant v. Stephens, 462 U.S. 862,

3

877 (1983)). The Arizona Supreme Court rejected this argument, relying on Greenway.

4

Ellison, 140 P.3d at 926.

5

Ellison’s arguments are foreclosed by Woratzeck v. Stewart, 97 F.3d 329 (9th Cir.

6

1996). There, the habeas petitioner argued “that aggravating factor (F)(5)—that the crime

7

was committed with the expectation of receiving anything of pecuniary value—failed . . .

8

to channel the discretion of the sentencer . . . [because] factor (F)(5) is automatically found

9

in cases where one is convicted of robbery felony-murder.” Id. at 334. The Ninth Circuit

10

disagreed, explaining that “[a]n examination of the application of factor (F)(5) in Arizona

11

does not support Woratzeck’s argument. . . . It is not true that everyone convicted of

12

robbery felony-murder is automatically death eligible.

13

sentencing that the killing was done with the expectation of pecuniary gain. Even if it is

14

true that under many circumstances a person who kills in the course of a robbery is

15

motivated to do so for pecuniary reasons, that is not necessarily so.” Id.

The State needs to prove at

16

At any rate, applying the double layers of deference required under Jackson and

17

AEDPA, Ellison’s challenge to the state courts’ application of the pecuniary-gain factor is

18

meritless.

19

3.

Multiple Murders

20

To satisfy Arizona’s multiple-murders aggravating circumstance, “[i]t is not enough

21

for the jury to convict the defendant of multiple homicides. The murders must have a

22

temporal, spatial, and motivational relationship such that they were a part of a continuous

23

course of criminal conduct.’” Ellison, 140 P.3d at 926 (cleaned up). “The multiple

24

murders aggravator applies so long as the defendant was found criminally liable, even if

25

he himself did not physically commit the murders.” Id.

26

In denying this claim on direct appeal, the Arizona Supreme Court explained:

27

Ellison was convicted of both felony murder and premeditated murder in the
deaths of each victim. The guilt proceeding jury also made Enmund/Tison
findings regarding the murders. The Bouchers, a married couple residing

28

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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

together, were both killed in the same room at approximately the same time.
According to Ellison, he and Finch went to the Bouchers’ home to commit a
burglary. He does not claim the two victims were killed for different reasons.
Id. The court concluded that the evidence thus established the required “temporal, spatial,
and motivational relationship” between the two murders, “regardless of whether Ellison
physically committed the murders.” Id.
Ellison argues that the Arizona Supreme Court unreasonably found that the
motivations for the murders were related because “[t]he evidence at trial was undisputed
that Finch killed Lillian Boucher. If . . . Ellison caused Joseph Boucher’s death, the
evidence at trial showed that he was coerced by Finch. Ellison’s motive therefore was
unrelated to Finch’s. If, instead, . . . Finch killed both victims, then [the Arizona Supreme
Court] found this aggravating circumstance based on Finch’s conduct rather than Ellison’s.
By interpreting the (F)(8) aggravating circumstance to preclude an individual
determination of Ellison’s culpability relative to a codefendant who actually committed the
murders, the Arizona Supreme Court violated the U.S. Supreme Court’s precedents
requiring individualized assessment.” (Doc. 21 at 140.)
This argument is unavailing. Under Arizona law, the fact that Ellison was convicted
of premeditated and felony murder with respect to both victims satisfies the motivational
relationship requirement. State v. Prasertphong, 76 P.3d 438, 442 (Ariz. 2003) (rejecting
defendant’s argument that the multiple-murders aggravator did not apply to him “because
he was not the killer, and did not share in [co-defendant’s] motivation to kill the victims”).
At any rate, applying the double layers of deference required under Jackson and AEDPA,
Ellison’s challenge to the state courts’ application of the multiple-murders factor is
meritless.
J.

Claim 23

In Claim 23, Ellison alleges that Arizona’s death-penalty statute created a
“presumption of death” by requiring him to prove that he was entitled to a life sentence, in
violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. 21 at 141-44.)
The Arizona Supreme Court’s denial of this claim, Ellison, 140 P.3d at 922, was
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1

neither contrary to nor an unreasonable application of clearly established federal law. The

2

United States Supreme Court has rejected the argument that Arizona’s death penalty statute

3

is impermissibly mandatory and creates a presumption in favor of the death penalty.

4

Walton, 497 U.S. at 651-52; see also Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998).

5

K.

Claim 24

6

In Claim 24, Ellison alleges that his rights under the Eighth and Fourteenth

7

Amendments were violated when the trial court instructed the jury, pursuant to Arizona

8

law, that they were required to determine unanimously whether he should be sentenced to

9

death. (Doc. 21 at 145-46.)

10

The Arizona Supreme Court’s denial of the claim, Ellison, 140 P.3d at 922, was

11

neither contrary to nor an unreasonable application of clearly established federal law. In

12

Mills v. Maryland, 486 U.S. 367 (1988), the Supreme Court reversed a capital sentence

13

because jurors viewing the instructions and verdict form “well may have thought they were

14

precluded from considering any mitigating evidence unless all 12 jurors agreed on the

15

existence of a particular such circumstance.” Id. at 384. Similarly, in McKoy v. North

16

Carolina, 494 U.S. 433 (1990), the Supreme Court reversed a death sentence where “the

17

instructions and verdict form expressly limited the jury’s consideration to mitigating

18

circumstances unanimously found.” Id. at 444 n.8.

19

But here, unlike in Mills and McCoy, unanimity was not required with respect to

20

individual mitigating circumstances. Instead, the jury was instructed that unanimity was

21

required only with respect to the verdict, not with respect to any particular mitigating

22

circumstance:

23
24
25
26
27
28

The jurors do not have to all agree that a mitigating circumstance has been
proven to exist. Each juror may consider any mitigating circumstances
found by that individual juror. In determining whether to impose a sentence
of death, each individual juror shall take into account the aggravating
circumstances that all the jurors have found to be proven and shall take into
account any mitigating circumstances that the individual juror has found to
be proven.
(RT 2/10/04 at 4-5.)

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It was not contrary to or an unreasonable application of clearly established federal

2

law for the Arizona Supreme Court to conclude that this instruction was permissible under

3

Mills and McKoy. See, e.g., Smith v. Spisak, 558 U.S. 139, 148 (2010) (finding no violation

4

of Mills and McKoy where “the instructions did not say that the jury must determine the

5

existence of each individual mitigating factor unanimously”); Howard v. Gittere, 392 F.

6

Supp. 3d 1205, 1223 (D. Nev. 2019) (“As one can readily see, the relevant instructions and

7

verdict form provided Howard’s jury bear faint resemblance to those in Mills. Nowhere

8

did they say or imply that the jury must determine the existence of a mitigating factor

9

unanimously. A unanimity requirement was imposed only as to the verdict . . . .”); Garcia,

10

2022 WL 1166408 at *47 (“Garcia’s argument that the unanimity requirement

11

impermissibly limited the jury’s consideration of mitigating evidence fails because

12

unanimity was not required with respect to individual mitigating circumstances. Instead,

13

the jury was properly instructed that unanimity was required only with respect to the

14

verdict.”).

15

L.

16

In Claim 25, Ellison alleges that the trial court violated his Eighth and Fourteenth

17

Amendments rights by precluding him from presenting mitigating evidence related to the

18

disparity in sentences between himself and Finch. (Doc. 21 at 146-49.) The Arizona

19

Supreme Court denied this claim on direct review. Ellison, 140 P.3d at 922-23.

Claim 25

20

During the penalty phase of trial, defense counsel elicited testimony that Finch

21

received a life sentence. As a result, the state asked to present evidence regarding the

22

mitigating circumstances found in Finch’s case. (RT 2/12/04 at 123.) Ellison’s counsel,

23

in turn, refused to stipulate to admission of the special verdict from Finch’s sentencing. (Id.

24

at 123-25.) Upon agreement of the parties, Judge Moon eventually instructed the jurors

25

that Finch and Ellison were tried separately before different juries, that “[s]ome of the

26

evidence was different,” and that the “aggravating circumstances and mitigating

27

circumstances proven in the Finch case were different.” (Id. at 202.) The court concluded:

28

“There is no way to explain all of the differences to you [the jury] under our legal system.

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1
2

Therefore you are instructed to accept as evidence only that on the basis of those
circumstances, the codefendant, Richard Finch, was not sentenced to death for either

3

murder.” (Id.) The court directed the jury not to speculate about the aggravating or

4

mitigating circumstances present in Finch’s case “beyond any differences that will be or

5

have been presented by the testimony in this case.” (Id.) Following that instruction,

6

Detective Watson testified that Finch was “somewhat slow,” was not on parole at the time

7

of the murders, and had no prior record of “serious offenses.” (Id. at 204-05.)

8
9
10
11
12
13

On direct appeal, Ellison argued that “by limiting the evidence regarding Finch’s
sentence, the trial judge effectively prohibited the jury from considering the disparate
sentences.” Ellison, 140 P.3d at 922-23. In denying the claim, the Arizona Supreme Court
noted that although a disparity in sentences between codefendants and or accomplices can
be a mitigating circumstance, “[o]nly the unexplained disparity is significant.” Id. at 923.
The court then stated that Ellison had waived any argument that the entire special verdict

14

from Finch’s sentencing should have been admitted. Id. The court explained that it would

15

be unfair to admit only certain facts about Finch’s verdict, such as the judge’s

16

determination that the State failed to the prove pecuniary gain aggravating factor. Id. The

17

court the reiterated that “[a] disparity in sentences is constitutionally relevant only if it is

18

unexplained” so “if particular facts about Finch’s sentence were admitted, all of the

19
20

differences between the aggravators and mitigators of each case should be admitted to
avoid misleading the jury.” Id. The court concluded:

21
22
23
24
25
26
27
28

Here, there was no unexplained disparity. In Finch’s case, Judge Moon
determined that Ellison, as the ringleader, forced Finch to kill Mrs. Boucher.
Judge Moon determined that Finch acted under duress and was not motivated
by pecuniary gain. Additionally, Finch, unlike Ellison, was not on parole
and had no serious felonies in his criminal background. Thus, Judge Moon
did not abuse his discretion in limiting the evidence so as to accommodate
Ellison’s disparate sentences argument while avoiding undue prejudice to
either side.
Id. (citations and footnote omitted).
Ellison now contends this decision “turns on unreasonable factual determinations”
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about Finch’s criminal history. (Doc. 21 at 149.) Ellison notes that Judge Moon found

2

that Finch “was previously convicted of at least three felonies, possession of controlled

3

substance in 1997, forgery in 1997, and possession of stolen property in 1998.” (Id.)

4

Ellison also states that Finch “appears to have had at least one outstanding warrant from

5

Washington.” (Id.)

6
7
8
9
10
11
12
13
14
15
16

As Respondents note, these assertions do not establish that any of the Arizona
Supreme Court’s findings were inaccurate with respect to the aggravating factors that
helped account for the disparity in sentences between Ellison and Finch. The felonies in
Finch’s record were not “serious offenses” for purposes of A.R.S. § 13-703(F)(2), and
Finch was not on parole when the murders were committed, § 13-703(F)(7). Both of those
aggravating factors, in contrast, applied to Ellison.
Ultimately, this claim fails because the jury heard evidence of the disparity in
sentences and any disparity was explained. See, e.g., Sims v. Singletary, 155 F.3d 1297,
1316 (11th Cir. 1998) (rejecting claim that it was error for the sentencing court not to
consider sentencing disparity between Sims and his co-defendants where Sims was the
triggerman and the jury and court knew that co-defendants were receiving sentences of two

17

and ten years); Jackson v. Bradshaw, 2007 WL 2890388, *78 (S.D. Ohio 2007), aff’d, 681

18

F.3d 753 (6th Cir. 2012) (“[T]here was already evidence before the jury regarding the

19

disparity in sentences.”). Ellison cites no clearly established federal law that would render

20

the Arizona Supreme Court’s denial of this claim objectively unreasonable.

21
22
23
24
25
26

M.

Claim 26

In Claim 26, Ellison alleges that the trial court improperly admitted irrelevant and
prejudicial victim-impact evidence in violation the Eighth and Fourteenth Amendments.
(Doc. 21 at 149-54.) The Arizona Supreme Court denied this claim on direct appeal.
Ellison, 140 P.3d at 923-24.
After the parties rested during the sentencing phase of trial, Vivian Brown, the

27
28

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victims’ daughter, made a victim impact statement pursuant to A.R.S. § 13-703.01(R).37

2

Before her statement, Judge Moon had told her she could not recommend a sentence.

3

Brown spoke about the “impact on what happened to my mother and father,” showed the

4

jury family photographs, and provided “a little history” of her parents’ lives so the jury

5

would “know who they were.” (RT 2/12/2004 at 209-13.) Brown then “touch[ed] a little

6

bit on—on how this has affected us.” (Id. at 213-14). At this point, Brown stated:

7

But I—what I want to try to express is this impact, because in my heart I
know my mother and father so well. I know how they—when they were
dying, I know how they were trying to help each other. I live with that
memory every day. I have their pictures out, because I will not put them
away. They are my mother and father. And every day I look at them, and I
have wonderful thoughts, and then all of a sudden there it is. They’re dying.
Tied, taped, struggling to help each other. They could hear. I know they
could still hear. Any time they were sick, they were worried sick about each
other. They were totally concerned, totally bonded, totally in love. They
fought like—like anybody. I mean, it was a normal relationship. But they
had that total love. And that’s what I live with every day, is how they died.

8
9
10
11
12
13
14
15
16

(RT 2/12/04 at 215-16.) Brown concluded: “I just don’t know what else to say. But this

17

is how it’s impacted me and my family and my brother and his family.” (Id. at 217.) The

18

parties declined the judge’s invitation to have Brown sworn and cross-examined. (Id.)

19

Over Ellison’s objection, the trial court also granted the prosecution’s request to allow one

20

in-life photograph of the victims to be taken to the jury room during deliberations. (RT

21

2/13/04 at 3-10.)

22

In his final penalty-phase instructions, Judge Moon informed the jurors that the

23

purpose of the victim-impact statement is to allow them “to see each murder victim as a

24

unique person and to see the loss resulting from their murders.” (Id. at 20-21.) It was only

25
26
27
28

The statute, now codified at A.R.S. § 13-752(R), provides that a victim “may present
information about the murdered person and the impact of the murder on the victim and
other family members and may submit a victim impact statement in any format to the trier
of fact.”
37

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for this “limited purpose” that the jury could consider the victim-impact information about

2

the victims. (Id. at 21.) Judge Moon explained that the jurors “must not consider any

3

opinion you feel the victims’ family may have about the appropriate sentence for either

4

murder.” (Id.) He instructed the jury that the victim-impact information “is not an

5
6
7

aggravating circumstance and must not be considered by you as an aggravating
circumstance” and that jurors may not “consider the relative worth of human beings” in
making their sentencing decision. (Id.) Judge Moon then reiterated that the jury must

8

make its “penalty phase decision based solely upon [its] evaluation of the aggravating and

9

any mitigating circumstances.” (Id.) He told the jury its decision “must be based on reason

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

rather than emotion.” (Id. at 20.)
The presentation of victim-impact evidence in a capital sentencing is not per se
unconstitutional. In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court held that
the introduction of a victim-impact statement to a capital sentencing jury violated the
Eighth Amendment. However, in Payne v. Tennessee, 501 U.S. 808 (1991), the Court
overruled Booth in part. Payne explained that the “State has a legitimate interest in
counteracting the mitigating evidence which the defendant is entitled to put in, by
reminding the sentencer that just as the murderer should be considered as an individual, so
too the victim is an individual whose death represents a unique loss to society and in
particular to this family.” 501 U.S. at 825 (cleaned up). “A State may legitimately
conclude that evidence about the victim and about the impact of the murder on the victim’s
family is relevant to the jury’s decision as to whether or not the death penalty should be
imposed.” Id. at 827. Therefore, the Court concluded, “if the State chooses to permit the
admission of victim impact evidence and prosecutorial argument on that subject, the Eighth
Amendment erects no per se bar.” Id. However, the Court left intact Booth’s prohibition
on the admission of characterizations and opinions about the crime, the defendant, or the
appropriate sentence. Id. at 830 n.2. See generally Bosse v. Oklahoma, 580 U.S. 1, 2
(2016) (“In [Booth], this Court held that the Eighth Amendment prohibits a capital
sentencing jury from considering victim impact evidence that does not relate directly to the
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1
2
3
4
5
6
7
8
9

circumstances of the crime. Four years later, in [Payne], the Court granted certiorari to
reconsider that ban on victim impact evidence relating to the personal characteristics of the
victim and the emotional impact of the crimes on the victim's family. The Court held that
Booth was wrong to conclude that the Eighth Amendment required such a ban.”) (cleaned
up).
In denying Ellison’s claim on appeal, the Arizona Supreme Court first upheld the
constitutionality of A.R.S. § 13-703.01(R), finding that victim-impact statements in capital
cases “are relevant to the issue of the harm caused by the defendant” and, so long as the
victim does not recommend a particular sentence, do not violate the Eighth Amendment.

10

Ellison, 140 P.3d at 923-24. The court noted that Judge Moon “properly instructed Brown

11

not to make a sentencing recommendation” and “instructed the jurors that they could

12

consider Brown’s statements only to understand the victims as unique individuals; they

13

could not consider her statements as establishing an aggravating circumstance or as

14

providing a sentencing recommendation.” Id. at 924. With respect to the photograph, the

15

court “recognize[d] the danger that photos of the victims may be used to generate sympathy

16

for the victim and his or her family” but explained that “it has refused . . . to adopt a per se

17

rule barring all in-life photos in capital murder cases,” leaving it to the trial court “in each

18
19
20
21
22
23

instance to exercise sound discretion in balancing probative value against the risk of unfair
prejudice.” Id. (quotations omitted). The court concluded that Judge Moon “did not abuse
his discretion in allowing the jurors to take into their deliberations one in-life photo, which
was ‘benign’ as compared to the victims’ post-death photos.” Id. (citations omitted).
Ellison contends that portions of Brown’s victim-impact statement violated Booth
and Payne by going beyond the effects of the crime on her life and offering impermissible

24

characterizations about the crime, such as “Tied, taped, struggling to help each other. They

25

could hear. I know they could still hear.” (Doc. 21 at 150-51.) He argues that the Arizona

26
27

Supreme Court unreasonably applied Payne by failing to recognize that the decision left
intact Booth’s prohibition on characterizations and opinions about the crime, as well as

28

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1

recommendations about the appropriate sentence. (Id. at 152.)38

2
3
4
5
6
7
8
9
10
11

Brown’s statement did not offer characterizations of the defendant or a
recommendation as to the appropriate sentence. Payne, 501 U.S. at 830 n.2. Nevertheless,
the Court agrees with Ellison that Brown, in describing the emotional effect of the murders,
offered opinions and characterizations of the facts of the crimes. Notwithstanding the
context in which they were offered, in which Brown was expressing her feelings about the
loss of her parents, these comments likely fall into one of the categories that remain
prohibited under Payne and Booth. See, e.g., Lockett v. Trammell, 711 F.3d 1218, 1238
(10th Cir. 2013) (admission of statement describing details of the crime and speculating
about the victim’s thoughts and feelings during the crime violated the Eighth Amendment).
But see Simmons v. Bowersox, 235 F.3d 1124, 1134 & n.4 (8th Cir. 2001) (penalty-phase

12

testimony by victim’s family members describing in detail her thoughts and feelings during

13

the crime was “not meaningfully distinguishable from that approved by the Supreme Court

14

in Payne”).

15

Even so, the admission of these comments did not have a “substantial and injurious

16

effect or influence in determining” Ellison’s sentence. Brecht, 507 U.S. at 637; see Floyd

17
18
19
20
21
22

v. Filson, 949 F.3d 1128, 1149 (9th Cir. 2020) (applying harmless error standard to
admission of mother’s victim-impact statement); Hooper v. Mullin, 314 F.3d 1162, 1174
(10th Cir. 2002) (“[T]he trial court erred by admitting this victim-impact testimony during
Petitioner's capital sentencing proceeding.

Nonetheless, this constitutional error was

harmless because it did not have a ‘substantial and injurious effect or influence in
determining the jury's verdict.’”). Given the record as a whole, including the trial court's

23
24
25
26
27
28

38

In support of his argument that the Arizona Supreme Court misread Payne, Ellison
cites the court’s reliance on Lynn v. Reinstein, 68 P.3d 412 (Ariz. 2003), asserting that in
Lynn as in Ellison, the court misinterpreted Payne as barring only sentencing
recommendations and not characterizations of the crime. This is incorrect. In Lynn, the
court accepted jurisdiction in a special action to consider whether a victim’s sentencing
recommendations were admissible. Contrary to Ellison’s argument, however, the court
acknowledged that Payne left in place the prohibition on a victim’s characterization of the
crime. 68 P.3d at 416 & n.4.
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1
2
3

instructions that clearly outlined the limited purposes for which Brown’s statement could
be considered, the admission of any improper comments was harmless. In Lockett, for
example, the Tenth Circuit applied the harmless error standard to a victim-impact statement

4

that “involved two types of evidence prohibited by the Eighth Amendment:

5

characterization of the crime and the defendant and a sentencing recommendation.” 711

6

F.3d at 1238. Among other things, the statement “speculated about Ms. Neiman’s thoughts

7

and feelings during the crime,” including her refusal to cooperate with Lockett, explaining

8

that “Stephanie is going to stand up for her rights no matter what. . . . Maybe that's what

9

Clayton [Lockett] was so scared of.” Id. (citation omitted). The statement “ended with an

10

unambiguous plea to the jury to sentence Mr. Lockett to death.” Id. Nevertheless, the

11
12
13

Tenth Circuit concluded that the admission of the statement was harmless because it did
not have a substantial and injurious effect on the jury. Id. at 1239. The court noted that a
single statement was involved; the statement did not characterize the defendant; and the

14

most powerful parts of the statement were constitutionally permissible accounts of “the

15

effect the murder had on them as a family” and the victim’s “unique and positive qualities.”

16

Id. The court also noted that the “jury was correctly instructed that its sentencing decision

17

was ‘limited to a moral inquiry into the culpability of the defendant, not an emotional

18

response to the evidence.’” Id. (citation omitted). Finally, the court noted that the strength

19
20
21
22
23
24
25
26
27
28

of the aggravating factors militated against any finding that the erroneously admitted
portions of the victim-impact statement was prejudicial. Id. at 1240.
So, too, here. The admission of Brown’s statement, which did not include a
recommendation that Ellison be sentenced to death, did not have a substantial and injurious
effect on the jury’s sentencing decision. She did not characterize Ellison, hers was the only
victim-impact statement the jury heard, and the bulk of her statement consisted of
permissible descriptions of her parents as unique individuals and the effect of their loss on
her and her family. Additionally, the jury was properly instructed on the limited purposes
for which the statement could be considered, and the aggravating evidence was powerful.
For the same reasons, the Court finds that any error was harmless with respect to
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1

the in-life photo of the victims that was provided to the jurors during their deliberations.

2

See, e.g., Plascencia v. Alameida, 467 F.3d 1190, 1203 (9th Cir. 2006) (“Even if the

3

admission of the photographs was improper, the error could not have had ‘a substantial and

4

injurious effect on the jury's verdict.’”) (citation omitted); United States v. Chanthadara,

5
6

230 F.3d 1237, 1274 (10th Cir. 2000) (victim-impact testimony did not render trial
fundamentally unfair where testimony of murder victim's husband and young children was

7

“amplified with numerous colored photographs of [the victim] while she was alive” and

8

jury was allowed to take into the jury room “letters the children had written to their dead

9

mother and a daily journal which described one child’s loss.”).

10

N.

11
12
13
14
15

In Claim 27, Ellison alleges that the trial court violated his rights under the Eighth
and Fourteenth Amendments by failing to instruct the jury that a life sentence would not
include the possibility of parole. (Doc. 21 at 154-63.) He concedes he did not raise this
claim in state court. (Id.) He contends, however, that the ineffective assistance of appellate
and PCR counsel excuse the default. (Id.)

16
17
18
19
20
21
22
23
24
25
26
27
28

Claim 27

The Court has already dismissed Claim 27 as meritless. (Doc. 68.) At any rate,
Ellison’s attempt to overcome the procedural default of this claim is unavailing. As
discussed elsewhere, the ineffective assistance of appellate counsel may be used as cause
to excuse a procedural default only where the particular ineffective-assistance allegation
was first exhausted in state court as an independent constitutional claim. Carpenter, 529
U.S. at 453; Carrier, 477 U.S. at 489-90. Ellison did not raise such a claim of ineffective
assistance of appellate counsel here. Meanwhile, under Martinez, the ineffective assistance
of PCR counsel can only excuse the default of claims of ineffective assistance of trial
counsel. Hunton, 732 F.3d at 1126–27; Martinez, 926 F.3d at 1225; Pizzuto, 783 F.3d at
1177.
O.

Claim 28

In Claim 28, Ellison alleges that the trial court violated the Eighth and Fourteenth
Amendments by denying his motion to retain a prison expert. (Doc. 21 at 163-66.) He
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1

concedes that he did not raise the claim in state court but again argues that the default is

2

excused by the ineffective assistance of appellate and PCR counsel. (Id. at 163-64.) He is

3

incorrect for the reasons just stated with respect to Claim 27.

4

P.

5

In Claim 29, Ellison alleges that his sentence “must be vacated because of the

6

cumulative prejudicial effect of all trial-court sentencing errors in this case.” (Doc. 21 at

7

167-69.) The parties disagree about the claim’s procedural status. Because the claim is

8

plainly meritless, the Court need not address the exhaustion issue. Lambrix, 520 U.S. at

9

524-25.

Claim 29

10

As noted elsewhere, the United States Supreme Court has not specifically

11

recognized the doctrine of cumulative error as an independent basis for habeas relief. Thus,

12

the Arizona Supreme Court’s denial of this claim was not contrary to nor an unreasonable

13

application of clearly established federal law.

14

identified at most one harmless sentencing-related error (concerning victim-impact

15

evidence), any cumulative-error claim fails for that reason as well. United States v. Solorio,

16

669 F.3d 943, 956 (9th Cir. 2012) (“There can be no cumulative error when a defendant

17

fails to identify more than one error.”).

Alternatively, because the Court has

18

Q.

19

In Claim 45(C), Ellison alleges that counsel performed ineffectively during the

Claim 45(C)

20

sentencing phase of his trial.

21

ineffectiveness. (Id.)

(Doc. 21 at 216-75.) He raises 10 subclaims of

22

As explained above, to establish deficient performance under Strickland, a

23

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

24

reasonableness.” Strickland, 466 U.S. at 688. Although trial counsel has “a duty to make

25

reasonable investigations or to make a reasonable decision that makes particular

26

investigations unnecessary, . . . a particular decision not to investigate must be directly

27

assessed for reasonableness in all the circumstances, applying a heavy measure of

28

deference to counsel’s judgments.” Id. at 691. In assessing counsel’s investigation, courts

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1

“must conduct an objective review of [counsel’s] performance, measured for

2

reasonableness under prevailing professional norms, which includes a context-dependent

3

consideration of the challenged conduct as seen from counsel’s perspective at the time.”

4

Wiggins v. Smith, 539 U.S. 510, 523 (2003) (citation and quotation marks omitted); see

5

also Rompilla v. Beard, 545 U.S. 374, 381 (2005). “As long as a reasonable investigation

6

was conducted, we must defer to counsel’s strategic choices.” Cox v. Ayers, 613 F.3d 883,

7

899 (9th Cir. 2010).

8

In the context of a capital sentencing, prejudice is assessed by “reweigh[ing] the

9

evidence in aggravation against the totality of available mitigating evidence.” Wiggins,

10

539 U.S. at 534. The “totality of the evidence” includes “both that adduced at trial, and

11

the evidence adduced” in subsequent proceedings. Id. at 536 (citation omitted). “If the

12

difference between the evidence that could have been presented and that which actually

13

was presented is sufficient to ‘undermine confidence in the outcome’ of the proceeding,

14

the prejudice prong is satisfied.” Duncan v. Ornoski, 528 F.3d 1222, 1240 (9th Cir. 2008)

15

(quoting Strickland, 466 U.S. at 694). The burden of showing prejudice is “highly

16

demanding and heavy.” Allen, 395 F.3d at 1000 (citation omitted).

17
18

1.

Additional background
a.

Sentencing

19

During the sentencing phase of trial, defense counsel called seven witnesses over

20

two days to testify in support of five proposed mitigating circumstances: (1) absence of

21

love and guidance during Ellison’s childhood; (2) drug addiction; (3) diminished capacity;

22

(4) lack of genuine violence in prior convictions; and (5) Ellison’s family members cared

23

about him and did not want him to die.

24

Darnell Sells, the first mitigation witness, was a correctional officer at the Sunrise

25

Community Correctional Center, a group home for juvenile offenders. (RT 2/10/04 at 20.)

26

Ellison, then 15, was a resident at Sunrise during Sells’s tenure there. (Id.) Sells testified

27

that Ellison’s family was not very involved in his case despite living close to the facility.

28

(Id. at 21.) Sells stated that there were not many visits from Ellison’s family and “certainly

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1

not many very productive” meetings. (Id. at 28.) Sells described Ellison’s mother’s

2

relationship with the program as having “no substance to it” and stated that Ellison’s older

3

siblings never visited at all. (Id.) Sells stated that only Ellison’s father was “reasonable

4

. . . [about] coming to see his son.” (Id. at 27.) Sells also recalled that Ellison had one or

5

two “very important and significant surgeries” on his feet while at Sunrise; they were “quite

6

emotional to Charlie at the time.” (Id. at 22.) Before one of the surgeries, Ellison’s family

7

moved to Oregon without telling him or leaving him forwarding information. (Id. at 23-

8

24.) Sells described Ellison as a “very capable student,” “very verbal” but also “private”

9

and a “loner” who would “go along to get along” and was more of a follower than a leader.

10

(Id. at 26-27.) Sells stated that Ellison gravitated toward him because he provided a safe

11

emotional space and because Ellison “enjoyed positive attention from adults.” (Id. at 30.)

12

Sells opined that Ellison was a “sensitive soul” who “has run from himself and his

13

circumstances and the people that have hurt him.” (Id. at 31.) Sells believed that Ellison

14

had been “jilted, neglected, disregarded, unwanted, abandoned emotionally somewhere

15

down the line,” probably by his family. (Id.) Sells testified that Ellison had “personal

16

redeeming value.” (Id. at 32.) According to Sells, Ellison was not “a dangerous mind, a

17

dangerous soul” but a “lost, lonely soul.” (Id. at 33.) According to Sells, Ellison was

18

“capable of things that he doesn’t know he’s capable of. He could be a good, decent human

19

being.” (Id.)

20

The second witness was Russell Reardon. He testified that he met Ellison in 1991

21

or 1992, when Ellison was around 26 years old. (Id. at 42.) Reardon testified that they

22

were close for about a year and a half. (Id. at 43.) Reardon testified that his relationship

23

with Ellison was “very sick”—they were both “very needy and very lonely.” (Id.) Like

24

Sells, Reardon described Ellison as a “lost soul.” (Id.) Reardon testified that he gave

25

Ellison money, which Ellison used to buy alcohol and cocaine. (Id. at 44.) Reardon stated

26

that Ellison’s drug use progressed until he was using cocaine just about every day. (Id. at

27

45.) Reardon acknowledged that he had harmed Ellison by giving him money and

28

facilitating his substance abuse. (Id. at 51.) Reardon also testified about his observations

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1

of Ellison’s family. He stated that Ellison loved his father and they were very close. (Id.

2

at 45.) Ellison’s mother, however, was “Ice. Cold”—the coldest woman Reardon had ever

3

met. (Id.) Reardon stated that she would have no contact with Ellison and “barely let him

4

come around. He almost had to crawl to get any attention from her.” (Id. at 45-46.)

5

Reardon stated that Ellison said he was raised by the television, because all his mother did

6

when he growing up was sit in front of the television. (Id. at 48.) Reardon also testified

7

that Ellison was molested by Ellison’s older brother, Mike. (Id. at 46.) Reardon stated that

8

the molestation still bothered Ellison in his 20s. (Id.) Reardon further testified that Ellison

9

was not a bully. (Id.) “He thought he was, but he wasn’t.” (Id.) According to Reardon,

10

Ellison “acted bad . . . [b]ut underneath, he was always really kind-hearted and was dying

11

for love.” (Id.) When Reardon heard about Ellison’s involvement in the crimes, he

12

couldn’t believe it because he had never seen Ellison “violent in any way, shape, or form.”

13

(Id. at 47.) Reardon stated that the only person Ellison would hurt was himself. (Id.)

14

Reardon did not believe that Ellison premeditated the murders. (Id. at 49, 53.) According

15

to Reardon, Ellison “[l]ived in the now” and “didn’t know how to plan or . . . to prepare

16

himself for the future.” (Id. at 52.) Reardon also described Ellison’s positive qualities,

17

stating that Ellison was artistic, talented, intelligent, and “very sensitive.” (Id. at 51.)

18

Finally, Reardon opined that Ellison “[n]ever had a chance” in life because, aside from his

19

father, his family offered no love, support, or guidance. (Id. at 54.) Reardon stated that he

20

had “never seen a family where people were so cold like that.” (Id.)

21

The third witness was Ellison’s older brother, Ken. Ken testified that Ellison was

22

born with a club foot which required at least two surgeries to correct. (Id. at 70.) Ken

23

stated that the condition caused Ellison pain and made it difficult for him to get around.

24

(Id. at 71-72.) Ken stated that Ellison was also ridiculed by neighbors and schoolmates.

25

(Id. at 86.) Ken testified that his mother was not a “warm and involved parent” and was

26

“pretty constantly angry” at Ellison. (Id. at 72, 74.) According to Ken, her anger “was

27

pretty much there all the time,” even when Ellison was only two or three years old. (Id.)

28

Ken testified that his mother abused him physically, beating him with a belt, and that this

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1

type of physical discipline happened “all the time.” (Id. at 75-76.) Ken described Ellison’s

2

role in the family as the “scapegoat.” (Id. at 77.) “[H]e took the brunt of anybody’s

3

frustration.” (Id. at 78.) According to Ken, Ellison was “picked on” by his mother and

4

older sister “all the time,” even when he hadn’t done anything wrong. (Id. at 88.) Ken also

5

testified that another brother (Mike) and Ellison used drugs together when Mike was 22

6

and Ellison was only 14. (Id. at 80.) Ken stated that he later learned that the two used

7

drugs intravenously. (Id. at 82.) When asked what he would like the jury to consider in

8

making its sentencing decision, Ken explained that his brother “has always had to struggle

9

uphill. . . . He never got a break. . . . There were never any success. Nothing to celebrate.

10

It was always something negative, whether it be his physical handicap or just the breaks in

11

life.” (Id. at 89.) Ken testified that Ellison never “had a chance to ever have anybody to

12

fall back on. To say I’m here for you, let’s work through this. He’s had to do it on his own

13

from as long as I remember . . . .” (Id.) Ken stated that the only people who accepted

14

Ellison “were friends that were already down the wrong path.” (Id. at 90.) Finally, on

15

redirect examination, Ken testified that Ellison had been in a motorcycle accident which

16

left him in a coma. (Id. at 93-94.)

17

The fourth witness was Karl Orr, who testified that he had been Ellison’s juvenile

18

probation officer when Ellison was nine or ten.39 (Id. at 99.) Orr testified that Ellison was

19

“special” and stuck in his mind. (Id. at 100.) Orr stated that Ellison was “a kid that tries.

20

He gets knocked down, he gets up. . . . He was looking for a friend. . . . Somebody to lean

21

on, somebody to help him.” (Id. at 102.) Orr testified that Ellison was a follower, not a

22

leader, and “he needed someone strong to follow.” (Id.) Orr further testified that Ellison

23

“did fabulously well under structure” but his family couldn’t provide the stability he

24

needed. (Id. at 100.) Referring to Ellison’s mother, Orr testified that never in his life had

25

he “met a person . . . who was as cold as this lady was about her son.” (Id.) Orr described

26

Ellison’s father as a “good man” who tried his best to help Ellison but “didn’t have a whole

27
39

28

On cross-examination, Orr acknowledged that the records showed that his contact
with Ellison occurred when Ellison was 14. (RT 2/10/04 at 118-19.)
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1

lot of influence on his . . . wife.” (Id. at 101.) Orr stated that Ellison’s siblings “weren’t

2

around for him.” (Id.) Orr opined that they ignored him because of his handicap. (Id.)

3

Orr testified that Ellison would be picked last for games and then “be made fun of by the

4

rest of the kids” when he did participate. (Id. at 106.) According to Orr, Ellison never got

5

a “fair shake” in life or a “chance to shine” because of his physical problems and family

6

circumstances. (Id. at 107.) Orr also noted that Ellison had positive qualities, including a

7

“willingness to help” and a “willingness to be involved.” (Id. at 109.) Orr also described

8

Ellison as a “great artist.” (Id.) Orr testified that the jury should take into consideration

9

Ellison’s ability to succeed in a structured environment as well as the “family situation” he

10

experienced growing up. (Id. at 110, 111.) Orr opined that Ellison may still have

11

something to offer society. (Id.) Finally, Orr testified that he saw cuts and bruises on

12

Ellison that were consistent with physical abuse. (Id. at 115-16.) According to Orr, Ellison

13

stated that his parents had caused the injuries. (Id.)

14

The fifth witness was Mark Goff, an investigator whose firm was retained by the

15

defense to handle mitigation. (RT 2/12/04 at 4.) Goff was responsible for arranging travel

16

for defense witnesses. (Id.) Goff testified that Ken had been late to court on the first day

17

of the sentencing hearing because he could not find his mother, sister, and brother-in-law,

18

who were gambling at a casino in Laughlin where his mother was on a “hot streak.” (Id.

19

at 5-6.)

20

The sixth witness was Dr. Douglas Tucker, a psychiatrist specializing in addiction

21

medicine. (Id. at 9.) Dr. Tucker reviewed a “life history” of Ellison, an “overview” that

22

listed and highlighted various documents. (Id. at 10-11.) Dr. Tucker also received police

23

reports and prior psychological evaluations. (Id. at 11.) Dr. Tucker did not examine or

24

perform any tests on Ellison. Dr. Tucker defined addiction, or dependence, as where a

25

“person’s use of a chemical . . . has been long-standing, has been intensive, and has reached

26

the point where it’s changed . . . [the] brain.” (Id. at 11-12.) Dr. Tucker stated that

27

addiction involves increased tolerance, withdrawal, reduced ability to control use of the

28

drug, and continued use despite negative consequences. (Id. at 12.) Dr. Tucker opined that

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1

genetics and environment are risk factors for addiction. (Id. at 17.) Dr. Tucker also

2

identified early trauma, early loss, early physical and sexual abuse, and psychiatric

3

disorders (e.g., schizophrenia, depression, anxiety and mood disorders, and attention deficit

4

disorder) as risk factors. (Id. at 17-18.) Dr. Tucker testified that methamphetamine is a

5

neurotoxic drug that causes permanent damage to the brain’s nerve cells. (Id. at 24.)

6

According to Dr. Tucker, these changes in the brain leave you “much more vulnerable to

7

drug use.” (Id. at 29-30.) Dr. Tucker explained that although addicts are responsible for

8

the choices they make, they are not responsible for the genes they are born with, or their

9

parents, or any emotional or physical abuse they suffered as children. (Id. at 27, 29.)

10

Counsel then asked Dr. Tucker to assume a series of hypotheticals that mirrored the

11

circumstances of Ellison’s life: a child raised by a neglectful family, unwanted by his

12

parents and largely ignored; a child born with a congenital orthopedic defect requiring a

13

series of surgeries from infancy through teen years; a child given the role of scapegoat in

14

the family; a family that moved frequently; a child sexually abused by his older brother

15

who also introduced him to alcohol and hard drugs; a child sent to reform school for a short

16

period with little participation by the family, with the family moving out of state before

17

another of the child’s scheduled surgeries; self-medication using drugs or alcohol to

18

counter depression; and a child diagnosed with ADHD in his middle to late teenage years.

19

Dr. Tucker addressed each of these hypotheticals. He testified that a neglectful family and

20

parental rejection can lead to depression and social withdrawal. (Id. at 30.) He elaborated

21

that the congenital defect can cause peer rejection and impact self-esteem and character

22

development, while the physical pain can make it difficult to focus or participate in

23

activities. (Id. at 32-33.) Dr. Tucker also stated that a child who is scapegoated and

24

verbally abused internalizes the criticism which becomes their sense of self. (Id. at 33.)

25

Dr. Tucker explained that a child experiencing these circumstances is “being molded in

26

. . . a toxic environment.” (Id. at 33-34.)

27

Dr. Tucker next testified that a child whose family moves frequently is unable to

28

“form long-term attachments to peers.” (Id. at 34.) Dr. Tucker explained that if the child

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1

does not have other peers or long-term relationships, he will be impaired as an adult in his

2

“ability to form long-term relationships.” (Id. at 35.) Dr. Tucker also stated that having a

3

physical deformity makes the process more difficult because it may take even longer for

4

the child to get past the “freak show stage” and be accepted by his peers and form

5

relationships. (Id. at 36.)

6

Next, Dr. Tucker explained that “sexual abuse is devastating for anyone who’s gone

7

through that as a kid.” (Id. at 36-37.) According to Dr. Tucker, the child usually feels “a

8

profound loss of sense of self and of identity and who you are,” as well as a “profound type

9

of rage” and a “profound type of depression.” (Id. at 37.) Dr. Tucker opined that such a

10

child develops a “type of mistrust,” “a loss of capacity for trust in others, because this is

11

what they’ll do to you, and that this loss of trust is exacerbated when the perpetrator is the

12

older brother “who’s supposed to be looking out for you.” (Id. at 38.) According to Dr.

13

Tucker, when that same brother introduces the child to alcohol and intravenous

14

methamphetamine use, “it’s almost too much to think about together in one person.” (Id.

15

at 39.) Dr. Tucker opined that the child’s “capacity to relate to other people, their emotional

16

responses to people and to life in general are going to be vastly different” than those of a

17

child who hasn’t experienced such damage and that, at this point, “the path has been paved

18

for him to become a hard core drug addict and criminal.” (Id. at 39-40.)

19

Counsel next questioned Dr. Tucker about the effects of detention in a juvenile

20

facility, with the caveat that the child’s parents “aren’t terribly involved in his treatment”

21

and in fact moved out of state without leaving a forwarding address or phone number while

22

the child was still in the facility and was scheduled to undergo another surgical procedure.

23

(Id. at 42-45.) Dr. Tucker responded that such parental behavior constitutes “abandonment

24

or rejection” at “exactly the time when they could come in and something could change.”

25

(Id. at 45.) According to Dr. Tucker, such abandonment and a major surgical procedure

26

“would have a major sort of impact on [the child’s] ability to benefit” from his placement

27

in the facility. (Id. at 46.)

28

Next, Dr. Tucker agreed that the scenario he had been describing was consistent

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1

with the self-medication model, in which an individual uses drugs or alcohol to “feel better”

2

if they are depressed. (Id. at 46-47.)

3

The final hypothetical counsel asked Dr. Tucker to consider was that the child, in

4

his middle or late teen years, was diagnosed with ADHD. (Id. at 61.) Dr. Tucker explained

5

that ADHD is a neuropsychiatric disorder whose symptoms include physical hyperactivity,

6

difficulty paying attention, and impulsivity. (Id. at 61-62.) Dr. Tucker stated that ADHD

7

is a disorder of the frontal lobes of the brain, which “have a lot to do with inhibition of

8

impulses and control over our behavior.” (Id. at 62, 64.) Dr. Tucker described ADHD as

9

a potentially “devastating disorder.” (Id. at 62.) He testified that untreated ADHD is a risk

10

factor for substance abuse, depression, unemployment, and criminal behavior. (Id. at 65.)

11

Dr. Tucker acknowledged that although individuals with any of these experiences

12

or conditions do not necessarily become killers, “the tapestry of things here going on is sort

13

of a setup for him—just in terms of criminal behavior, he’s at a much greater risk.” (Id. at

14

49-52.) As risk factors for criminal conduct, Dr. Tucker cited intoxication and withdrawal

15

from drugs and alcohol, brain changes caused by drug and alcohol abuse, rage resulting

16

from the abuse the child has suffered, and a feeling of alienation from society and authority

17

figures. (Id. at 52-53.) Dr. Tucker reiterated that a person with all of these factors “is at

18

much greater risk for a whole variety of what we might call deviant behavior,” including

19

suicide and “committing a whole variety of crimes.” (Id. at 53.) Dr. Tucker explained that

20

the scenario defense counsel described was “kind of a conglomeration of . . . situations and

21

traumas, any one of which would probably be the . . . life organizing trauma for that person,

22

where everything’s really about coping with that, having some self-esteem in spite of that.”

23

(Id. at 55.) He testified that “maybe one or two of these things is fairly workable,” but

24

“[m]ore than that, you’re getting into a very severe population.” (Id. at 58.) He testified

25

that “the damage done in childhood really does carry on beyond adolescence into

26

adulthood.” (Id. at 59.)

27

The seventh and final mitigation witness was Dr. Richard Lanyon, a clinical

28

- 132 -

1

psychologist, who testified by speaker phone.40 Dr. Lanyon performed psychological and

2

neuropsychological examinations of Ellison. (Id. at 137-38.) Before conducting his

3

examinations, Dr. Lanyon “read a very large quantity of records,” including Ellison’s

4

juvenile records from Phoenix and Oregon, school records from Phoenix, Oregon, and

5

Indiana, police records from Phoenix and Kingman, records from the Mohave County Jail,

6

probation records from Maricopa County, and various interviews, including interviews of

7

Ellison, Ellison’s parents, and Ellison’s girlfriend. (Id. at 139-40.) Dr. Lanyon testified

8

that his neuropsychological examination of Ellison revealed no impairment due to physical

9

damage in the brain. (Id. at 139.) Dr. Lanyon’s psychological examination included a

10

detailed, structured interview, several psychological questionnaires, and a test of general

11

intelligence. (Id. at 141-42.) With this information, Dr. Lanyon was “professionally able”

12

to testify about Ellison’s “psychological health” and the “various factors that have

13

throughout his life influenced that psychological health.” (Id. at 143.)

14

The first factor Dr. Lanyon identified was that Ellison was born with club feet, a

15

serious physical condition that required many surgeries and caused “tremendous physical

16

pain.” (Id. at 144.) Dr. Lanyon testified that Ellison “was a small, sensitive boy, and he

17

was constantly ridiculed by other children, called names like gimpy, stumpy. And he

18

would cry.” (Id.) Dr. Lanyon also stated that Ellison’s family moved frequently so he

19

would encounter new sets of school children “who would ridicule him all over again.” (Id.)

20

Dr. Lanyon testified that, as a result of the surgeries, Ellison fell behind in school and

21

dropped out in ninth grade “because he just couldn’t make it despite average intelligence.”

22

(Id. at 144-45.)

23

Dr. Lanyon testified that other factors influencing Ellison psychological health

24

included “significant physical abuse from his father” and from his brother. (Id. at 146.)

25

Dr. Lanyon stated that Ellison was chosen as the family’s problem child and was not only

26

“punished for tiny, little things he did” but also for things his siblings did. (Id.) Dr. Lanyon

27
The court told the jury that Dr. Lanyon’s health issues prevented him from testifying
in person. (RT 2/12/04 at 97.)
40

28

- 133 -

1

testified that “the only person that paid any attention to [Ellison] at all was his brother

2

Mike, who then sexually molested him and threatened to kill him.” (Id.)

3

Another factor discussed by Dr. Lanyon was Ellison’s ADHD, which wasn’t

4

diagnosed until his teenage years because “nobody paid any attention” to him and which

5

“interfere[d] with his ability to function properly in school.” (Id. at 147.) According to

6

Dr. Lanyon, Ellison was a “lonely kid” who was “simply ignored.” (Id. at 148.) Dr.

7

Lanyon noted that a juvenile court psychologist had described Ellison as a “timid little

8

mouse.” (Id.)

9

The next factor noted by Dr. Lanyon was the constant pain Ellison experienced,

10

both physical and mental. (Id. at 148-49.) Dr. Lanyon testified that the only way Ellison

11

was able to deal with the pain was by doing things to get attention. (Id. at 149.) Dr. Lanyon

12

testified that this dysfunctional, attention-seeking behavior included the armed robbery for

13

which Ellison did prison time. (Id.)

14

The next factor identified by Dr. Lanyon, Ellison’s “very problematic” use of drugs

15

and alcohol, began when Ellison was a “fairly young teenager.” (Id. at 151.) Dr. Lanyon

16

testified that this drug and alcohol use was a “way to escape intolerable thoughts and

17

feelings,” which is why Ellison became addicted so readily as a teenager. (Id. at 151-52.)

18

Dr. Lanyon also testified that his view of Ellison was clarified by the results of the

19

questionnaires he had administered. (Id. at 152.) For example, Dr. Lanyon testified that

20

the results of the Minnesota Multiphasic Personality Inventory (“MMPI-2”) revealed that

21

Ellison “wanted to be viewed as severely psychiatrically disturbed.” (Id.) “[T]he purpose

22

for doing that . . . is they want to get attention and be seen as very, very needy.” (Id. at

23

153.) Dr. Lanyon testified that the results of another questionnaire “show[] him as a person

24

who avoided other people, wanted to be alone. . . .” (Id.) Dr. Lanyon interpreted that result

25

as Ellison trying to portray a “tough guy,” loner image when in fact Ellison “desperately

26

needs, desires, craves love, support, security, attention.” (Id.) Dr. Lanyon believed that

27

Ellison exaggerated his symptoms to get attention so that people would feel sorry for him

28

and try to help him. (Id. at 184.)

- 134 -

1

Dr. Lanyon summarized Ellison’s “psychological reality” by explaining that “his

2

life as a child was so painful that he learned to be exclusively preoccupied” with his pain

3

and ways of deadening the pain. (Id. at 154.) Dr. Lanyon described Ellison’s substance

4

abuse as something to deaden the pain. (Id.) Dr. Lanyon testified that Ellison “[n]ever had

5

the opportunity to look forward to reflect upon what the future might be, and that’s how

6

one often develops judgment.” (Id.)

7

Dr. Lanyon did not diagnose Ellison with a “formal psychiatric disorder except that

8

he would be chronically depressed and he’s made suicide attempts.” (Id. at 160.) Dr.

9

Lanyon related the depression to “situational factors, rather than being a normal psychiatric

10

illness.” (Id.) Dr. Lanyon “did not see anything to indicate that [Ellison] had . . . a character

11

disorder.” (Id.) Instead, Dr. Lanyon found that Ellison was a person “whose experience

12

as a child was so painful that he has never recovered” and has no idea what a “satisfactory”

13

life is “let alone how to get there.” (Id. at 161.)

14

On cross-examination, Dr. Lanyon elaborated that Ellison, in taking the MMPI-2,

15

“clearly and deliberately set about to exaggerate the extent of his psychopathology.” (Id.

16

at 173.) Dr. Lanyon opined that Ellison also attempted to “simulate severe antisocial

17

personality disorder.” (Id. at 174.) Dr. Lanyon repeated that he found no evidence of

18

schizophrenia, delusions, hallucinations, or organic brain damage. (Id. at 176.)

19

The following day, the trial court instructed the jury and counsel made their closing

20

arguments. (RT 2/13/04.) The case went to the jury at 11:55 a.m. (Id. at 94.) At 4:37

21

p.m., the jury announced that it would be unable to reach a verdict that day. (Id.) The jury

22

returned to deliberate four days later, at 9:00 a.m. on February 17, 2004. It reached its

23

verdict at 3:37 p.m. (RT 2/17/04 at 1.)

24

The jury’s findings with respect to the mitigating circumstances were as follows:

25

(1) two jurors found that Ellison had proved the “absence of love and guidance”

26

circumstance; (2) seven jurors found that Ellison had proved drug addiction; (3) no jurors

27

found that Ellison had proved diminished capacity; (4) one juror found that Ellison had

28

proved absence of genuine violence in prior convictions; and (5) seven jurors found that

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1

Ellison had proved that Ellison’s family members care about him and do not want him to

2

die. (Id. at 2-4.) Nevertheless, the jury found that Ellison should be sentenced to death for

3

both murders. (Id. at 4.)

4

b.

PCR Evidentiary Hearing

5

In his PCR petition, Ellison raised various claims of ineffective assistance at

6

sentencing. The PCR court summarily denied most of those claims but concluded that

7

Ellison was “entitled to an evidentiary hearing . . . on two issues: (1) whether [Ellison] was

8

denied the effective assistance of counsel at Sentencing in the failure of trial counsel to

9

gather and present mitigating evidence; and (2) whether [Ellison] was denied the effective

10

assistance of counsel at Sentencing in the failure of trial counsel to discover, investigate

11

and present evidence of Fetal Alcohol Syndrome.” (PCR Ruling 7/16/12 at 6.)

12

The hearing was held over four days in August 2014. (PCR Ruling 7/13/15 at 1.)

13

Ellison called four experts, including three members of “FASDExperts,” a team formed in

14

2007 to perform multidisciplinary assessments in “high-stakes criminal cases.” (RT 8/8/14

15

at 24, 226.) Ellison also called three witnesses who had testified at his sentencing (his

16

brother Ken, Reardon, and Orr); his trial judge, Judge Moon; his first attorney, Kenneth

17

Everett; his lead trial counsel, Iannone; his second-chair trial counsel, Engan; and his

18

mitigation specialists, Mary Durand and Dana Gavin. The State called Detective Auld.

19

Ellison’s first witness was Dr. Paul Connor, a clinical neuropsychologist. (RT

20

8/8/14 at 14.) Dr. Connor testified that by 1996, fetal alcohol syndrome (“FAS”) and fetal

21

alcohol effects were diagnosable disorders. (Id. at 27.) Dr. Connor further testified that in

22

2004, the CDC established guidelines for diagnosing FAS. (Id. at 28–29.) Dr. Connor

23

testified that the newly-published DSM-541 included a diagnosis of “neurodevelopmental

24

disorder associated with prenatal alcohol exposure.” (Id. at 32.) Dr. Connor testified that

25

before the DSM-V, the only comparable diagnosis was “cognitive disorder not otherwise

26

specified,” or “NOS.” (Id. at 33-34.) Dr. Connor testified that alcohol is a teratogen—a

27

substance that damages or kills developing cells. (Id. at 35.) Dr. Connor explained that

28

41

Diagnostic and Statistical Manual of the American Psychiatric Association.
- 136 -

1

prenatal exposure to alcohol causes “functional deficits” and that alcohol consumption

2

during weeks four and five of the embryo’s life can cause limb problems, including club

3

feet. (Id. at 36, 42.) Dr. Connor testified that disabilities associated with FASD include

4

mental health problems, disrupted school experiences, and trouble with the law. (Id. at 48.)

5

Dr. Connor performed a neuropsychological examination of Ellison, testing a

6

number of domains, including IQ, achievement, and executive functioning. Dr. Connor

7

measured Ellison’s full-scale IQ at 89, which is in the average range. (Id. at 69.) Dr.

8

Connor

9

(communication, daily living skills, and socialization). (Id. at 81.) Dr. Connor further

10

testified that Ellison’s academic skills were lower than his IQ and that Ellison’s adaptive

11

functioning skills were much lower, which Dr. Connor testified is “exactly what he would

12

expect to see in individuals with FASD.” (Id. at 80.) Dr. Connor also testified that Ellison

13

demonstrated deficits in reading comprehension, spatial construction, visual spatial

14

learning in memory, sustained attention, executive functions such as planning and problem

15

solving, and the three adaptive skills. (Id. at 83.) Dr. Connor stated that the existence of

16

such deficits, despite an IQ of 89, is seen “extremely commonly” in “FASD people.” (Id.)

17

Dr. Connor “ultimately diagnosed Mr. Ellison with cognitive disorder, NOS” and found

18

that his “pattern of neuropsychological functioning was consistent with the diagnostic

19

guidelines for fetal alcohol spectrum disorders.” (Id. at 84.)

found

“considerable

impairments”

in

Ellison’s

adaptive

functioning

20

Ellison’s next witness was Dr. Richard Adler, a forensic and clinical psychiatrist

21

who examined Ellison in 2010. (Id. at 109.) Dr. Adler performed a psychiatric interview,

22

did a physical examination, and reviewed magnetic resonance imagining (“MRI”) and

23

diffuser tensor imaging (“DTI”) studies. (Id. at 112.) Dr. Adler testified that the use of

24

FASD in the courtroom “goes back certainly to 1990.” (Id. at 115.) Dr. Adler also

25

explained that his report was written in 2011, before the publication of the DSM-5 in 2013,

26

which first included a diagnosis of “neurodevelopmental disorder associated with prenatal

27

alcohol exposure.” (Id. at 119.)

28

In making his diagnosis, Dr. Adler used the criteria established by the Institute of

- 137 -

1

Medicine (“IOM”). (Id. at 119-22.) Dr. Adler explained that first IOM criterion for the

2

condition of partial fetal alcohol syndrome disorder (“pFASD”) is “confirmed maternal

3

alcohol exposure.” (Id. at 123.) Dr. Adler testified that in the report of Dr. Novick Brown,

4

another defense expert, Ellison’s mother indicated that “she attended a Halloween party,

5

and this was after she had missed her first period, but before she knew that she was pregnant

6

and that she drank to the point of clear intoxication.” (Id. at 123-24.) Dr. Adler also noted

7

that, in the same report. Mrs. Ellison “recollect[ed] drinking on two additional occasions

8

while pregnant.” (Id. at 124.) Dr. Adler testified that this is a sufficient amount of alcohol

9

consumption to satisfy the first IOM criterion. (Id.)

10

Dr. Adler explained that the next IOM criterion is facial anomalies. (Id. at 125.)

11

Dr. Adler used a computer program, which has been available since 2001, to measure

12

Ellison’s facial features. (Id. at 131.) The resulting code, according to Dr. Adler, was

13

“considered to be an indicia of the FAS facial abnormalities.” (Id. at 134.)

14

Dr. Adler explained that the next IOM criterion was cognitive abnormalities. (Id.

15

at 135.) Dr. Adler testified that this criterion was satisfied by Dr. Connor’s findings. (Id.

16

at 140.)

17

Dr. Adler then testified about his review of Ellison’s imaging studies. (Id. at 142.)

18

According to Dr. Adler, the MRI showed that Ellison’s corpus callosum was abnormal.

19

(Id. at 144-45.) Dr. Adler explained that the abnormalities were related to the frontal lobe

20

and “very pertinent” to executive functions. (Id. at 150.) Dr. Adler also testified that the

21

DTI showed a decrease in white matter fibers. (Id. at 151-54.) According to Dr. Adler,

22

the abnormalities were “located in those particular areas that are emblematic of FASD.”

23

(Id. at 161.) Dr. Adler also testified that DTI was available in the 1990s and MRI was

24

available before that. (Id. at 157-58.) Dr. Adler stated that the abnormalities in Ellison’s

25

brain were not consistent with binge drinking or traumatic brain injury. (Id. at 161-63.)

26

Dr. Adler testified that his diagnosis at the time of his examination and report in

27

2010-11 was cognitive disorder NOS under the DSM-IV-TR, the predecessor of the DSM-

28

V. (Id. at 165.) Dr. Adler also diagnosed Ellison with pFASD under the 1996 diagnostic

- 138 -

(Id. at 166.)42

1

criteria of the IOM.

2

“neurodevelopmental disorder associated with prenatal alcohol exposure.” (Id.)

Under the DSM-5, his diagnosis was

3

On cross-examination, Dr. Adler acknowledged that the attending neuroradiologist

4

for Ellison’s MRI, Dr. John Karis, found it “unremarkable.” (Id. at 186.) Dr. Adler also

5

testified that he was skeptical that Ellison or any criminal defendant would malinger in an

6

attempt to be diagnosed with antisocial personality disorder, as Dr. Lanyon found in

7

reviewing Ellison’s MMPI-2. (Id. at 208.) Dr. Adler also testified that people with FASD

8

are highly suggestible. (Id. at 207.)

9

Ellison’s next witness was Dr. Natalie Brown, a psychologist who worked with Drs.

10

Connor and Adler on the FASDExperts team. Dr. Brown focused on mental health and

11

behavioral issues. She first testified about the cognitive deficits caused by FASD that

12

create “problematic behaviors.” (RT 8/19/14 at 8.) According to Dr. Brown, these include

13

memory and attention deficits, boundary problems that lead to assaultive behavior,

14

difficulty remembering what one has learned in the past, “chattiness” or poor judgment in

15

communication, susceptibility to peer pressure, and suggestibility. (Id. at 10-11.) Dr.

16

Brown testified that it was Ellison’s suggestibility that caused him to continue talking with

17

the detectives. (Id. at 15.) She also stated that Ellison had a “lifelong tendency to follow

18

the lead of others.” (Id. at 24.) Dr. Brown agreed that from 1998 onward, it was well-

19

recognized in her field that FASD caused social and emotional development delays. (Id.

20

at 27.) Dr. Brown testified that Ellison’s mother told her she drank once a month while

21

she was pregnant with Ellison and recalled one episode of binge drinking while she was

22

six weeks pregnant. (Id. at 29-30.) Dr. Brown explained that mothers typically under-

23
24
25
26
27

Dr. Adler explained that the word “partial” in pFASD just means that the “full facial
features are not present.” (RT 8/8/14 at 166.) According to Dr. Adler, pFASD is a “worse”
diagnosis than FASD because the absence of distinct facial features means “the rate at
which their difficulties are discerned and picked up is less” and they are less likely to
receive the “interventions that are well-known to ameliorate the intensity and the negative
effects” of the condition. (Id. at 166-67.)
42

28

- 139 -

1

report their drinking, but that even one incident of binge drinking can “damage the

2

developing brain of the fetus.” (Id. at 30.) Dr. Brown further testified that Ellison’s mother

3

was drinking during the first six weeks of pregnancy, “which is the most vulnerable time

4

for an embryo developing.” (Id. at 32.) Dr. Brown also noted that Mrs. Ellison did not

5

want to be pregnant and rejected Ellison. (Id. at 31.) According to Dr. Brown, this “harsh

6

upbringing” was also “part of the reason for the offense behavior.” (Id.)

7

Dr. Brown next testified about the behaviors Ellison exhibited throughout his

8

childhood that were consistent with a diagnosis of FASD: poor and inconsistent academic

9

performance, hyperactivity, distractibility, impulsivity, and behavioral problems such as

10

talking back to teachers, fighting, and truancy. (Id. at 37-54.) Dr. Brown testified that Dr.

11

Lanyon did not take “seriously any of the cognitive deficits that he noted,” instead focusing

12

on Ellison’s birth defect and home environment. (Id. at 65–66.)

13

Dr. Brown then testified about Ellison’s “childhood adversities”: surgeries for his

14

club feet, emotional neglect and rejection by his parents, physical abuse by his father and

15

older brother, sexual abuse by his oldest brother, early exposure to substance abuse and

16

criminal behavior, school instability caused by the family’s frequent moves, and constant

17

rejection by his peers. (Id. at 70-73.) Dr. Brown opined that there were no meaningful

18

interventions to address these factors and Ellison “fell through the cracks essentially.” (Id.

19

at 77-79.)

20

Next, Dr. Brown listed Ellison’s “secondary disabilities,” or adverse consequences

21

resulting from his brain damage. (Id. at 82–84.) According to Dr. Brown, these consisted

22

of mental health problems including polysubstance abuse and undiagnosed ADHD;

23

academic disruptions, including failing grades and eventually dropping out of school;

24

trouble with the law starting at age 14; dependent living, including living with his parents

25

as an adult; employment problems, such as being unable to stay at a job for more than a

26

few months; and making inappropriate sexual comments. (Id.)

27

Dr. Brown also testified that Ellison scored in the top one percent on a test

28

measuring suggestibility. (Id. at 103.) Dr. Brown stated that Ellison “acquiesced” to all of

- 140 -

1

the detective’s leading questions when he was interrogated. (Id. at 103-04.) Dr. Brown

2

noted that others, including Ellison’s brother Ken and Orr, described Ellison as a timid

3

follower and that a psychologist at one of Ellison’s juvenile facilities noted that he tended

4

to set himself up as a scapegoat in his interactions with peers. (Id. at 104.)

5

Dr. Brown testified that Ellison’s past crimes displayed executive dysfunction and

6

suggestibility, including the armed robbery where he gave the store clerk his address. (Id.

7

at 113–14.) Dr. Brown also testified that his “offense conduct” in burglarizing and

8

murdering the Bouchers showed “flawed planning, very high risk with an unknown benefit

9

and an inability to foresee consequences with virtually every step he took and importantly,

10

inability to extricate himself from the situation.” (Id. at 120.) Dr. Brown opined that FASD

11

“certainly did influence the offense conduct.” (Id.) Dr. Brown also testified that Finch had

12

no executive function deficits and therefore was more likely to have been the leader despite

13

Ellison’s higher IQ. (Id. at 121-24.)

14

Finally, Dr. Brown discussed “red flags” that should have put sentencing counsel

15

on notice that FASD was a potential issue. (Id. at 127-35.) Dr. Brown testified that the

16

record available to Dr. Lanyon indicated that Ellison’s mother drank; that that were red

17

flags for “educational impairment” available in the records at the time, including Ellison’s

18

placement in special education classes; that there were red flags for ADHD and

19

impulsivity; and that “most counsel” know that splits in IQ scores between verbal and

20

nonverbal skills “might mean brain damage.” (Id.) Dr. Brown concluded: “[T]here were

21

numerous red flags . . . [that] should have alerted trial counsel, as well as Dr, Lanyon, that

22

prenatal alcohol exposure was at least a possibility. . . . [T]here were multiple cognitive

23

deficits in several areas that indicated a high likelihood of brain damage . . . .” (Id. at 138-

24

39.)

25

The next witness was Dr. Joseph Wu, a neuropsychiatrist who reviewed Ellison’s

26

MRI and DTI studies. (Id. at 229.) Dr. Wu testified that DTI studies began to be used in

27

the mid-1990s with studies being published in the late 1990s and early 2000s about DTI

28

findings in conditions such as alcoholism and brain injuries. (Id. at 236.) Dr. Wu testified

- 141 -

1

that DTI is capable of detecting the compromised integrity of the axons in the cerebral

2

tracts of the corpus callosum associated with fetal alcohol syndrome.

3

According to Dr. Wu, the reason Dr. Karis read Ellison’s MRI as normal is that Dr. Karis

4

did not look closely at the DTI but instead reviewed the MRI for “acute issues.” (RT

5

8/20/14 at 10.) Dr. Wu testified that the abnormalities in Ellison’s corpus callosum could

6

not be accounted for by head trauma or drug use. (Id. at 20, 31.) Dr. Wu opined that

7

Ellison had “significant pathology in the integrity of his axons in cerballar [sic] tracts in a

8

manner that would be highly consistent with . . . fetal alcohol spectrum disorder” and

9

inconsistent with traumatic brain injury. (Id. at 30-31.) Dr. Wu testified that people with

10

FASD suffer from executive dysfunction, including “impaired social judgment and

11

impaired ability to regulate social behavior.” (Id. at 32.) He explained that under the DSM-

12

V, an anti-social personality disorder is precluded if the behavior is explained by a

13

neurocognitive disorder due to prenatal alcohol exposure.

14

examination, Dr. Wu acknowledged that he was not using DTI technology in the years

15

2003-05. (Id. at 51.)

(Id. at 237.)

(Id. at 35.) On cross-

16

Ellison next called Judge Moon, who testified that he didn’t believe he needed to

17

recuse himself from Ellison’s trial despite findings made while presiding over Finch’s trial.

18

(Id. at 75, 77.) Judge Moon agreed that he would have considered brain damage and mental

19

impairment to be significant sentencing factors. (Id. at 76-77.)

20

Ellison next called Orr, his juvenile probation officer. (Id. at 83.) Orr testified, as

21

he did at Ellison’s sentencing, that Ellison was “a skinny little kid” who “looked like he

22

needed a friend.” (Id. at 84, 86.) Orr testified that Ellison “seemed to be a pretty nice little

23

man with a family that wasn’t worth a damn.” (Id. at 86.) Orr testified that he considered

24

placing Ellison with an aunt and uncle, “but the only thing they could actually tell me was

25

that mom had a drinking problem”—“supposedly drinking a 6 pack to a 12 pack per day.”

26

(Id. at 87.) Orr testified that Ellison “blossomed in structure” but “couldn’t sort out

27

between right and wrong.” (Id. at 88.) “If it was wrong, he’d do it anyway.” (Id.) Orr

28

described Ellison as a “follower” who got into trouble by choosing the wrong people

- 142 -

1

follow. (Id. at 89.) Orr now ascribed Ellison’s misbehavior to “fetal alcoholism.” (Id.)

2

Orr characterized Ellison as “spacey,” “scattered,” unable to stay on topic, subject to mood

3

swings, and lacking self-esteem. (Id. at 92-94.) Orr testified that Ellison shoplifted but

4

gave away the items he stole. (Id. at 94-95.) Finally, Orr reiterated that the other children

5

ridiculed Ellison because of his club feet. (Id. at 96.)

6

The next witness was Ellison’s brother, Ken. (Id. at 114.) Ken testified that at the

7

time of Ellison’s sentencing he was confused, didn’t understand the lawyers’ questions,

8

and “really didn’t know why [Ken] was at that trial.” (Id. at 115.) Ken stated that because

9

he didn’t understand his role in the mitigation case, he was defensive when asked at

10

sentencing about his family’s dysfunction. (Id. at 117.) Ken further testified that Ellison’s

11

trial counsel did not ask him about his impressions of Ellison’s mental health. (Id. at 118.)

12

Ken testified that Ellison was a needy child who tried to act tough. (Id. at 126.) Ken stated

13

that Ellison’s trial counsel had not asked him about Ellison’s behavior, and he did not

14

mention it to them out of naivety, shock, and denial. (Id. at 129.) Ken also stated that he

15

was in shock when he testified at sentencing by seeing Ellison’s arrogance and lack of

16

remorse or understanding of the trouble he was in. (Id. at 131-32.) Finally, Ken testified

17

that his family members “100%” had “addictive-type personalities.” (Id. at 132-33.)

18

On cross-examination, Ken acknowledged that he had been reluctant to provide

19

information to trial counsel, which was not counsel’s fault. (Id. at 139.) Ken also stated

20

that he had spoken face-to-face with Ellison’s counsel and co-counsel at his apartment

21

before the sentencing hearing. (Id. at 141-42.)

22

Ellison’s next witness was Reardon, who testified that Ellison “seemed like a lost

23

soul and reminded me of my kid brother.” (Id. at 163.) Reardon further testified that his

24

own mother was a heavy drinker and smoker when she was pregnant with his little brother,

25

who weighed only 2.5 pounds at birth. (Id. at 163-64.) Reardon stated that his family

26

“babied” and “spoiled” his brother, showing a “level of concern” that Reardon did not see

27

from Ellison’s family. (Id. at 164-65.) Reardon testified that, at the time he was in a

28

relationship with Ellison, Ellison had no plans for the future and didn’t want any

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1

commitments. (Id. at 165-66.) Reardon also testified that Ellison once had to quit working

2

because he refused to wear a shirt to cover his tattoos. (Id. at 166.) Reardon also recounted

3

an episode in which Ellison acted belligerently when a clerk refused to sell him beer

4

because he didn’t have an ID. (Id. at 167.) According to Reardon, Ellison “would be

5

inappropriate like that at times. You never knew when it was going to happen.” (Id. at

6

173.) Reardon stated that when he became upset at Ellison’s refusal to follow social norms,

7

like leaving for weeks at a time without informing Reardon, Ellison would make no effort

8

to understand why Reardon was angry. (Id. at 168-69.) Reardon stated that he “knew

9

something was wrong with” Ellison. (Id. at 169.)

10

Reardon testified that trial counsel visited him about a year before trial and spoke

11

with him for a few minutes “right before” his testimony. (Id. at 170, 172.) Reardon stated

12

that counsel didn’t ask if he had observed “anything unusual in [Ellison’s] behavior.” (Id.

13

at 171.) Instead, Reardon contended, they asked about Reardon’s relationship with Ellison

14

and how well he knew Ellison. (Id.)

15

Ellison next called Dana Gavin, his mitigation specialist for the PCR proceedings.

16

(Id. at 190.) Gavin stated that she traveled to Indiana to interview Ellison’s mother. (Id.)

17

Gavin testified that FASD was an issue that had not been investigated previously so she

18

needed to speak with Ellison’s mother about whether she drank while she was pregnant.

19

(Id. at 191.) Gavin stated that Ellison’s mother agreed to testify on his behalf but passed

20

away before she could do so. (Id. at 193.) Gavin further stated that Ellison’s oldest brother

21

(Mike) and sister would not testify. (Id. at 193-94.) Gavin described the Ellison family as

22

“[v]ery self-absorbed, very dysfunctional, self-centered.” (Id. at 194.)

23

The next witness was Engan, who served as second-chair counsel during Ellison’s

24

trial and sentencing. (Id. at 200.) Engan testified that he had the requisite experience for

25

that position. (Id. at 201.) However, Engan could not recall whether he had completed “the

26

right amount of capital defense continuing legal education” required under the rules. (Id.)

27

Ellison’s trial was Engan’s first capital case. (Id. at 221.) Engan testified that he believed

28

Dr. Lanyon’s testimony was “critical” and that eliciting his testimony in person would

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1

“have a significantly better impact on a jury.” (Id. at 206.) Engan could not recall if

2

testimony by video was a viable option at the time of Ellison’s sentencing. (Id. at 207.)

3

Engan testified that lead counsel declined to subpoena Dr. Lanyon because he didn’t think

4

it appropriate to subpoena a fellow professional, a decision with which Engan disagreed.

5

(Id. at 207-08.) Engan testified that he was concerned about Dr. Lanyon’s finding that

6

Ellison “clearly and deliberately set about to exaggerate the extent of his

7

psychopathology.” (Id. at 210.) Engan explained that if he were presented with this finding

8

as lead counsel, he would have discussed the matter with the expert and, if he didn’t get a

9

satisfactory explanation, would “probably consult with a second expert.” (Id. at 212-13.)

10

Engan further testified that if he had been “responsible for the case,” he would have had

11

Dr. Tucker meet personally with Ellison as a way of gaining more information than a

12

review of the records would provide. (Id. at 216.) Engan further opined that, “although

13

hazardous, it would probably be a good idea if Mr. Ellison did testify.” (Id. at 220.) Engan

14

clarified that Ellison did not “demand to testify” after being made aware of that right,

15

although he had the “absolute right” to testify if he chose to do so. (Id. at 222.) Engan

16

stated that he and lead counsel “probably” had “in-depth discussions” with Ellison about

17

whether to testify. (Id.) Engan testified that lead counsel may have persuaded Ellison not

18

to testify, which to Engan suggested that Ellison was a follower. (Id. at 233, 237.)

19

Ellison next called Iannone, his lead counsel at trial and sentencing. Iannone

20

testified that, before his appointment in Ellison’s case, he had tried nine felony jury trials

21

and served as second-chair counsel in one capital case—Ellison’s case was his first capital

22

case as lead counsel. (Id. at 243-44.) Iannone recalled taking seminars in jury sentencing

23

following the decision in Ring II. (Id. at 246.) Iannone testified that Mary Durand was the

24

first mitigation specialist in the case but, after she became ill in 2000 or 2001, she was

25

replaced by Mark Goff of Public Service Investigations. (Id. at 247.) Iannone was

26

“impressed” by both Durand and Goff and believed that Durand had a good relationship

27

with Ellison. (Id. at 248.) Iannone testified that he did not call Ellison to testify because

28

he worried Ellison might be a “volunteer” and because Ellison would say something that

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1

would “irretrievably alienate the jury.” (RT 8/21/04 at 112.) In Iannone’s view, Ellison

2

was “competent” but “[h]eavily damaged.” (Id. at 113.) Iannone testified that although he

3

viewed Ellison as a “follower who desperately wanted to be a leader,” he did not pursue

4

the “follower/leader” issue because it was a “veritable minefield” given that Ellison was

5

the only one with a connection to Kingman and the one who provided the transportation

6

and the latex gloves worn during the crimes. (Id. at 128, 131-32.) Iannone testified that

7

he believed Ellison was the leader and Finch the follower. (Id. at 164.)

8

As for the possibility of introducing FASD evidence, Iannone testified that he did

9

not “recall giving it any thought at all.” (Id. at 133-34.) Iannone explained that in

10

examining Dr. Lanyon at trial, he “drew the sting” out of the negative information in Dr.

11

Lanyon’s report by questioning him about the malingering issue, and eliciting Dr. Lanyon’s

12

explanation, before the prosecutor could raise it on cross-examination. (Id. at 147-50.)

13

Iannone agreed that he had spoken with Dr. Lanyon about his findings and that his approach

14

in examining Dr. Lanyon was a matter of “trial strategy and tactics.” (Id. at 150.)

15

Turning to Durand, Iannone testified that he and Durand had a lot of conversations

16

while she was on the case, but she had to withdraw due to health issues. (Id. at 166.)

17

Iannone testified that he couldn’t remember if he considered calling Durand to testify at

18

sentencing. (Id. at 137.) Iannone testified that Durand never told him that Ellison could

19

be suffering from pFASD or FAS and that he “didn’t recall anyone bringing that up.” (Id.

20

at 168.) Iannone testified that he relied on Dr. Lanyon’s finding that Ellison did not suffer

21

from brain damage. (Id. at 169-70.)

22

Iannone could not recall why Dr. Lanyon testified telephonically. (Id. at 175.) He

23

testified that he “really wasn’t happy doing it by telephone” but, as he recalled, “it was

24

either this or nothing, so we had to bite the bullet and do it” because the “information [was]

25

of critical importance.” (Id.) Iannone also testified that in addition to Drs. Lanyon and

26

Tucker, Dr. Gwenn Levitt, a Phoenix psychiatrist, evaluated Ellison. (Id. at 178.) Iannone

27

then testified: “May I just—may I just tell the Court that after evaluating Mr. Ellison, Gwen

28

told me that I didn’t want to call her.” (Id.)

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1

Finally, in response to questions by the court, Iannone testified that the new

2

mitigation firm came onto the case because of Durand’s health problems and that his

3

“perception” was that doing the mitigation work was “damaging Mary’s health, that she

4

needed to get her strength up and recover and that she was no longer perceiving herself as

5

being an active member of the Ellison defense team.” (Id. at 179.) Iannone also testified

6

that there was no information Durand had gathered that he was not “able to present to the

7

sentencing jury.” (Id.)

8

The next witness was Kenneth Everett, Ellison’s first defense attorney and the

9

Mohave County Public Defender from 1997 to July 2000. (Id. at 6.) Everett was appointed

10

during the PCR proceedings to serve as a “Strickland expert.” (Id. at 14.) Everett testified

11

that after his appointment, he contacted Durand because he knew that Ellison’s background

12

contained a number of mitigation issues. (Id. at 19.) He testified that the experts on whom

13

Iannone relied were “woefully inadequate.”

14

Lanyon’s report should have led counsel to “other important mitigation.” (Id. at 36.)

15

Everett testified that there is an “inherent tension in a system where the judge is responsible

16

for appointing experts” and overseeing the budget because an attorney may hesitate to ask

17

for the appointment of an expert and risking the judge’s “ill will.” (Id. at 38-39.) Everett

18

testified that the failure to call a mitigation witness to testify in person fell below “the

19

standard of care” and therefore it was imperative to subpoena Dr. Lanyon and if necessary

20

to ask for a continuance. (Id. at 40–42.) Everett opined that it is “absolutely essential” to

21

put a mitigation specialist on the stand during the penalty phase of a capital trial and that

22

the applicable ABA Guidelines mandated an investigation into mitigating circumstances

23

from the client’s birth to the time of sentencing. (Id. at 44.) Everett further testified that

24

several red flags were raised in Dr. Lanyon’s report that called out for more thorough

25

investigations by the mitigation specialist and additional experts, including “several

26

significant head injuries, a coma for 36 hours, sexual abuse by family members, substance

27

abuse of every kind, shape, and form . . . , addiction, two club feet, childhood issues.” (Id.

28

at 47.) Everett also noted that Dr. Lanyon’s report contained the findings of a mitigation

- 147 -

(Id. at 35.) According to Everett, Dr.

1

specialist named Scharlette Holman who outlined similar “significant factors” that

2

influenced Ellison’s “development and functioning.” (Id. at 48.) Everett opined that the

3

testimony of a mitigation specialist is crucial to contextualizing and explaining how

4

mitigating circumstances affected a defendant. (Id. at 50.) Everett also testified that

5

constitutionally effective assistance requires that an expert meet personally with the client.

6

(Id. at 54.)

7

Next, Everett explained that the ABA Guidelines mandate a “team concept” in

8

representing a capital defendant and that the team approach “was totally lacking” in

9

Ellison’s case. (Id. at 56.) Everett testified that the lead attorney is responsible for asking

10

an expert whether further testing is necessary. (Id. at 55-56.) According to Everett,

11

Iannone was “completely ineffective” at sentencing in advancing the theory that Ellison

12

was the follower and Finch the leader. (Id. at 62.) Everett concluded by testifying that the

13

sentencing investigation and presentation in Ellison’s case was “one of the least

14

professional and weakest” he had ever seen. (Id. at 70.)

15

On cross-examination, Everett admitted he “did not consider fetal alcohol

16

syndrome” despite meeting with Ellison frequently over the 15 months he represented him

17

and “didn’t do anything to investigate the possibility of fetal alcohol syndrome.” (Id. at

18

80.) He also testified that Durand, one of the best and experienced mitigation specialists,

19

“did not suspect or investigate for partial fetal alcohol syndrome” despite meeting with

20

Ellison a number of times, investigating his life history and background, and speaking with

21

friends and relatives. (Id. at 83-84.) Everett also acknowledged that Durand never raised

22

the subject of pFSAD with him. (Id. at 84.) Everett further testified that he was aware of

23

Durand’s health issues but was “not sure of the timing . . . specifically in regard to this

24

case.” (Id. at 100.) Nevertheless, Everett testified that it was “certainly [his] belief that

25

she could have, would have and must have testified in this case and was ready, willing, and

26

able to do so.” (Id.)

27

Ellison’s final witness at the PCR evidentiary hearing was Durand. (Id. at 183.)

28

Durand testified that she interviewed Ellison on “many occasions” and “spent a lot of time

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1

with him . . . face-to-face” and also interviewed “a lot” of Ellison’s family members,

2

including Ellison’s mother “several times.” (Id. at 216.) Durand testified that Ellison’s

3

mother was drinking during one of their interviews, that Ellison’s mother admitted she

4

believed she was drunk on the night Ellison was conceived, and that Ellison’s mother also

5

made it plain that she never loved Ellison and was a cold and neglectful mother. (Id. at

6

192-96.)

7

Duran testified that she also reviewed Ellison’s school records, psychological

8

reports, prison and jail records, and the police reports. (Id. at 217.) Durand stated that she

9

“did not even consider the possibility of fetal alcohol effects anytime in [her] involvement

10

in [the] case” and “never had a discussion with any of the lawyers . . . about fetal alcohol

11

syndrome.” (Id. at 217-18.) Durand opined, however, that if “the proper mitigation had

12

been done . . . one of the experts would have seen it.” (Id. at 199.) Duran explained that

13

she “missed the fetal alcohol because [she] didn’t see it in his face” and was “consumed

14

with these co-occurring issues” such as the sexual abuse Ellison suffered. (Id. at 198.)

15

Durand also opined that regular team meetings, sharing of information, and

16

brainstorming are critical in capital sentencing but did not happen in Ellison’s case. (Id. at

17

196.) Durand testified that she recommended Dr. Lanyon to Iannone “to do a neuropsych

18

evaluation of Mr. Ellison” but opined that Dr. Lanyon should have performed additional

19

tests after finding no organic brain damage. (Id. at 199, 201.) Durand also testified that

20

Dr. Tucker should have met personally with Ellison and that a PET scan should have been

21

performed. (Id. at 197.) Durand also stated that she would have visited the prison to speak

22

with an inmate named “Booger Red” who extorted inmates, including Ellison, by providing

23

protection in exchange for sex. (Id. at 197-98.) Durand stated that she would have called

24

six additional expert witnesses at Ellison’s sentencing, including a child development

25

specialist from Washington, D.C., and a prosecutor from the Maricopa County Sex Crimes

26

Unit. (Id. at 208-09.) Durand also opined that the testimony of a mitigation specialist is

27

necessary to “put it all together” in a “coherent form,” “contextualize” the mitigating

28

circumstances, and “talk about what the effects of what happened to him are and how that

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1

affected his behavior for his entire life.” (Id. at 204-05.) Durand acknowledged, however,

2

that due to her health problems she had stopped actively working on Ellison’s case the year

3

before the sentencing proceedings. (Id. at 210.)

4

The State presented the testimony of Detective Auld to counter Ellison’s contention

5

that he suffered from executive dysfunction that was manifested in the circumstances of

6

the crime. (Id. at 223-68.)

7

2.

Analysis

8

As noted, Ellison’s habeas petition raises ten subclaims of ineffective assistance of

9

counsel at sentencing. (Doc. 21 at 216-75.) Subclaims 1 and 2 were the subject of the

10

evidentiary hearing outlined above. Following the evidentiary hearing, the PCR court

11

issued a written order denying relief as to those subclaims. (PCR Ruling, 8/13/15.) The

12

PCR court also issued a subsequent written order denying Ellison’s motion for

13

reconsideration as to those subclaims. (PCR Ruling, 11/16/15.) As for subclaims 3-8, they

14

were summarily denied by the PCR court in its initial ruling (PCR Ruling, 7/16/12.)

15

Subclaims 9 and 10 were not raised in state court.

16

a.

Subclaim 1: Mitigation Evidence

17

The PCR court addressed, and rejected, the following allegations of ineffective

18

assistance related to mitigation evidence: (1) failing to insist that Dr. Lanyon testify in

19

person rather than by phone; (2) failing “to ask another neuropsychologist to re-test

20

Ellison”; (3) failing to call Durand as a mitigation witness; and (4) failing to adequately

21

prepare mitigation witnesses Ken Ellison, Karl Orr, and Russell Reardon. (PCR Ruling,

22

7/13/15 at 5-13.) The court “reject[ed] Ellison’s claims of alleged failure to gather and

23

present mitigating evidence, finding that they are not supported by the record of the

24

sentencing trial or evidentiary hearing.” (Id. at 7.)

25
26
27
28

With respect to the presentation of Dr. Lanyon’s telephonic testimony, the PCR
court found:
There is no claim that his testimony was deficient or inaccurate. Rather,
Ellison claims Dr. Lanyon’s testimony would have been more effective if it
had been delivered in person, rather than telephonically.
- 150 -

1

The record clearly reflects that Judge Moon instructed the jurors that the
reason Dr. Lanyon would testify telephonically was due to Lanyon’s health
problems. The record does not show if or when Dr. Lanyon might have been
available to testify in person, but Iannone testified at the evidentiary hearing
that the only way the defense could present Dr. Lanyon’s testimony was via
telephone. The decision whether to call a witness telephonically, or to move
to postpone the trial is a matter of trial strategy. This question is one of
weighing the efficacy of a telephonic testimony versus the antagonism of the
jury created by a postponement of the trial. Without knowing when Dr.
Lanyon might be available in person, this court will not second-guess defense
counsel’s tactical [and] apparently sound decision to present Dr. Lanyon’s
testimony telephonically.

2
3
4
5
6
7
8
9

(Id. at 8, footnotes omitted.)

10
11
12
13
14
15
16

The PCR court next discussed counsel’s failure to consult an additional
neuropsychologist. (Id. at 9-10.) The court first noted that counsel retained Dr. Lanyon
after Ellison was evaluated by psychiatrist Dr. Gwen Levitt, who indicated that her
testimony “would not be helpful to the defense.” (Id. at 9.) Dr. Lanyon, whom the PCR
court referred to as a “neuro-psychologist,” concluded that Ellison “suffered from no
organic brain damage and that he was malingering as to symptoms of mental illness.” (Id.)
The court continued:

17

25

The record reflects that Ellison’s attorneys consulted numerous expert
witnesses in their investigation of possible mitigating circumstances. In
addition to doctors Levitt and Lanyon, they also consulted with doctors
Grogan, Aitken [sic], and Tucker.[43] Iannone testified at the evidentiary
hearing that he did not see any need for additional experts, and if he had, he
would have requested their appointment by the court. Iannone testified that
he specifically directed Dr. Douglas Tucker to not perform any interview or
testing of Ellison personally. Iannone wanted Dr. Tucker to tell the jury
about the debilitating effects of drug addiction and the effects on Ellison’s
life. He was concerned that an interview or testing would reveal negative
things about Ellison (possibly anti-social personality disorder), and mindful
that Dr. Lanyon’s MMPI test results were invalid—as deliberately
manipulated by Ellison.

26

The court finds a clear strategic decision by counsel to avoid exposing

18
19
20
21
22
23
24

27
Dr. Thomas Grogan was an orthopedist the defense consulted about Ellison’s club
feet. James Aiken, an expert on prisons and correctional security, is not a doctor.
43

28

- 151 -

1

Ellison to additional psychological interviews or testing that might reveal
negative information about Ellison. Dr. Levitt warned Iannone that he should
not call her as a witness. Iannone testified that there are some things counsel
do not want to know. He intentionally avoided presenting evidence that
Ellison acted under duress (by Finch) because of certain contra-indications,
which demonstrated that Ellison was the likely ringleader, not Finch.
Iannone believed that Ellison was the person who selected the victims in this
case. Under these circumstances, counsel’s strategic decision to avoid
further evaluations of Ellison appeared sound.

2
3
4
5
6
7
8
9
10

(Id. at 9-10, footnote omitted.)
Next, the PCR court found that “counsel’s failure to call Mary Durand as a witness
was not deficient performance.” (Id. at 10.) The court explained:
[T]he substance of Mary Durand’s knowledge of Ellison’s childhood and
social history were presented in substance to the jury through the testimony
of Dr. Richard Lanyon and Dr. Tucker. Iannone testified at the evidentiary
hearing that he did not believe there was further information, not already
provided to the jury, to which Mary Durand might have testified. The choice
of which witness to use to present important mitigating testimony is a matter
of trial strategy.

11
12
13
14
15

(Id.)

16

Finally, the court rejected Ellison’s claim that defense counsel inadequately

17

prepared witnesses Ken Ellison, Orr, and Reardon. (Id. at 11-13.) The court noted that

18

counsel met personally with the three witnesses and elicited relevant mitigating testimony

19

about family dysfunction, lack of love and guidance, Ellison’s physical disability, his

20

mother’s coldness and antagonism, and his substance abuse. (Id.)

21

In challenging the PCR court’s ruling on these points, Ellison contends that the PCR

22

court made several unreasonable factual determinations and unreasonably applied

23

Strickland. (Doc. 21 at 227-31.) More specifically, Ellison first notes that the PCR court

24

erroneously referred to Dr. Lanyon as a “neuropsychologist.” (Id. at 227.) In fact, Dr.

25

Lanyon was a psychologist who performed a neuropsychological examination of Ellison.

26

Ellison argues that “the court’s assumption that Iannone in fact consulted an expert trained

27

in neuropsychology was an unreasonable determination of fact.” (Id. at 228.)

28

This argument is unavailing. Although the PCR court got Dr. Lanyon’s title wrong,
- 152 -

1

Ellison offers no support for the proposition that Lanyon was not trained in

2

neuropsychology, nor does he argue that Lanyon was unqualified to perform a

3

neuropsychological exam. Indeed, the record reflects that Durand recommended Dr.

4

Lanyon to defense counsel to perform a “neuropsych evaluation.” (RT 8/21/04 at 199.)

5

Next, Ellison argues that the PCR court made “unreasonable determinations of fact

6

and unreasonable applications of Strickland” when it rejected his allegations of

7

ineffectiveness related to trial counsel’s reliance on Dr. Lanyon. (Doc. 21 at 228-29.)

8

Ellison seems to contend this ineffectiveness took two discrete, if related, forms: (1)

9

“fail[ing] to investigate to determine if Dr. Lanyon’s conclusions were valid”; and (2)

10

failing to “hav[e] Ellison tested or evaluated by another psychologist or neuropsychologist

11

because if the results were negative, trial counsel could then put them aside and go forward

12

with Dr. Lanyon.” (Id.) Ellison also faults the PCR court for characterizing the latter as

13

an unreviewable strategic choice and for describing James Aiken as a “doctor” (when, as

14

discussed elsewhere, Aiken is not a doctor). (Id.)

15

Ellison is not entitled to habeas relief on this basis. The starting point for the

16

analysis is the principle that “[a]ttorneys are entitled to rely on the opinions of properly

17

selected, adequately informed and well-qualified experts.” Crittenden v. Ayers, 624 F.3d

18

943, 966 (9th Cir. 2010). See also Sims v. Brown, 425 F.3d 560, 585-86 (9th Cir. 2005)

19

(“Attorneys are entitled to rely on the opinions of mental health experts, and to impose a

20

duty on them to investigate independently of a request for information from an expert

21

would defeat the whole aim of having experts participate in the investigation.”) (citation

22

omitted). Indeed, “[i]f an attorney has the burden of reviewing the trustworthiness of a

23

qualified expert’s conclusion before the attorney is entitled to make decisions based on that

24

conclusion, the role of the expert becomes superfluous.” Hendricks v. Calderon, 70 F.3d

25

1032, 1039 (9th Cir. 1995). See also Morris v. Carpenter, 802 F.3d 825, 841 (6th Cir.

26

2015) (“Attorneys are entitled to rely on the opinions and conclusions of mental health

27

experts.”); Nelson v. Davis, 952 F.3d 651, 663–64 (5th Cir. 2020) (“We have consistently

28

found that death penalty counsel is not ineffective if they rely on a medical expert’s

- 153 -

1

assessment of the defendant’s mental functioning to inform their punishment phase strategy

2

instead of pushing ahead with their own investigation or hiring new experts who may have

3

reached a different diagnosis.”) (cleaned up). Thus, to the extent Ellison faults trial counsel

4

for relying on the opinions of Dr. Lanyon (and not realizing, for example, that Dr. Lanyon

5

had overlooked the existence of FASD), this criticism is a non-starter. At a minimum,

6

there is no clearly established federal law supporting Ellison’s criticism on this point. See,

7

e.g., Earp v. Cullen, 623 F.3d 1065, 1077 (9th Cir. 2010) (“An expert’s failure to diagnose

8

a mental condition does not constitute ineffective assistance of counsel, and [a defendant]

9

has no constitutional guarantee of effective assistance of experts.”); Campbell v. Coyle,

10

260 F.3d 531, 555 (6th Cir. 2001) (“Even though Dr. Chiappone as a trained psychologist

11

failed to detect any evidence of PTSD, Campbell asks us to declare that his counsel’s

12

independent failure to make the same diagnosis is an objectively unreasonable mistake,

13

depriving him of his Sixth Amendment right to the effective assistance of counsel. There

14

is no evidence that Dr. Chiappone was incompetent, or that Campbell’s lawyers had any

15

reason to question Chiappone’s professional qualifications. We conclude, therefore, that

16

it was objectively reasonable for Campbell’s trial counsel to rely upon Dr. Chiappone’s

17

diagnosis and, further, trial counsel’s failure to independently diagnose PTSD was not

18

unreasonable.”) (citation omitted); Boggs v. Shinn, 2020 WL 1494491, *48 (D. Ariz. 2020)

19

(failure of petitioner’s experts to diagnose petitioner with fetal alcohol syndrome was not

20

ineffective assistance of counsel).

21

A corollary to the aforementioned principle is that an attorney has no obligation

22

under Strickland to seek out the opinion of another expert after obtaining the opinion of

23

the first qualified expert. As the Ninth Circuit has noted, “the Supreme Court’s precedent

24

does not support the theory that if counsel had ‘nothing to lose’ by pursuing a defense, then

25

counsel is deficient for failing to pursue it. . . . An argument that counsel could have relied

26

on any number of hypothetical experts whose insight might possibly have been useful is

27

speculative and insufficient to establish that counsel was deficient.” Atwood v. Ryan, 870

28

F.3d 1033, 1064 (9th Cir. 2017) (cleaned up). Thus, to the extent Ellison faults his trial

- 154 -

1

counsel for not seeking out additional experts after receiving Dr. Lanyon’s opinions, that

2

criticism is again unavailing (and, at a minimum, the PCR court did not violate clearly

3

established federal law or make an unreasonable determination of the facts by concluding

4

otherwise).44

5

Next, Ellison challenges the PCR court’s rejection of his claim that trial counsel

6

performed ineffectively by failing to have Dr. Lanyon testify in person. (Doc. 21 at 229.)

7

According to Ellison, this determination was predicted on an unreasonable factual

8

determination—that Dr. Lanyon’s health problems prevented him from testifying in

9

person. (Id.) In an effort to show that this determination was unreasonable, Ellison points

10

to Engan’s representation during a December 2003 status conference that he expected Dr.

11

Lanyon to be “‘in the full swing of things” by January 2004 and expected Dr. Lanyon to

12

be able to testify on “any date from mid-January onward.” (RT 12/5/03 at 3.) Ellison also

13

argues that the expressions of frustration from Engan and mitigation specialist Goff at

14

Iannone’s failure to subpoena Dr. Lanyon suggest that Lanyon was healthy enough to

15

appear in person.

16

Ellison is not entitled to habeas relief on this basis. As an initial matter, Ellison has

17

not met his heavy burden of demonstrating, by clear and convincing evidence, that the

18

challenged factual determination was unreasonable.

19

44

20
21
22
23
24
25
26
27
28

The transcript from the status

This conclusion is not undermined by the fact that certain aspects of the PCR court’s
analysis related to Dr. Lanyon may be subject to criticism. As noted, the PCR incorrectly
described Aiken as a “doctor” in the course of describing trial counsel’s efforts to obtain
other expert opinions, beyond those of Dr. Lanyon, to be used for mitigation purposes. But
as discussed in the text, no clearly established law required trial counsel to look beyond
Dr. Lanyon or question Dr. Lanyon’s conclusions. Thus, any factual error in describing
Aiken was immaterial. For similar reasons, although the Court tends to agree with
Ellison’s contention that PCR court erred by characterizing trial counsel’s “decision to
avoid further evaluations of Ellison” by other experts as an example of an unreviewable
“clear strategic decision” (PCR Ruling, 7/13/15 at 9-10)—as noted in Weeden v. Johnson,
854 F.3d 1063 (9th Cir. 2017), there is no strategic downside to consulting with an
additional expert, as “simply procuring a report does not mean it must be produced,” id. at
1070—the broader point is that no clearly established law required trial counsel to provide
a strategic justification for this (in)action. Instead, counsel was entitled to rely on Dr.
Lanyon’s opinions.
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1

conference shows that after Engan expressed hope that Dr. Lanyon would recover by mid-

2

January 2004, Judge Moon responded that he was “hoping that [Dr. Lanyon] was basically

3

ready to go but for the critical medical condition, and that he doesn’t have to then take

4

more time to be prepared for trial once he’s healthy enough to travel.” (RT 12/5/03 at 3-

5

4.) Engan replied that he couldn’t “venture an opinion on that.” (Id. at 4.) This exchange

6

fails to clearly and convincingly establish that Dr. Lanyon’s health was no longer an issue

7

at the time of his testimony on February 12, 2004.

8

The notes cited by Ellison are also insufficient to make this showing. Although the

9

typewritten notes, dated February 5, 2004, reflect concern over the fact that “Ian[n]one had

10

not subpoenaed witnesses,” there is no specific discussion there of Dr. Lanyon’s health or

11

availability—in fact, the one expert who is discussed by name is Dr. Tucker. (PCR Pet.,

12

Ex. C) Meanwhile, on the handwritten notes on the following page, there is an indication

13

that Iannone was going to speak with Dr. Lanyon that night about his testimony. (Id.) This

14

is insufficient to overcome, by clear and convincing evidence, the presumption of

15

correctness that attaches to the PCR court’s factual findings about Dr. Lanyon’s health and

16

inability to testify in person. See 28 U.S.C. § 2254(e)(1); Miller-El II, 545 U.S. at 240.

17

Alternatively, even assuming for the sake of argument that the PCR court made an

18

unreasonable factual determination when explaining why trial counsel allowed Dr. Lanyon

19

to testify telephonically rather than in person (and, thus, also erred in evaluating whether

20

counsel’s performance was deficient), the PCR court separately found that Ellison had not

21

demonstrated prejudice: “If one assumes for purposes of evaluating all the legal issues that

22

Ellison’s trial counsel performed deficiently, the issue of prejudice remains. . . . The errors

23

and deficiencies that Ellison claims his attorneys made in the sentencing trial are not

24

sufficiently substantial to create a doubt that a rational jury would have found the proffered

25

mitigating circumstances sufficiently substantial to call for leniency.” (PCR Ruling,

26

7/13/15 at 16-17.) Ellison has failed to meet his burden under § 2254(d) of showing error

27

in this analysis. Although Ellison asserts in conclusory fashion that testifying by phone,

28

rather than in person, rendered Dr. Lanyon’s testimony “ineffectual” (Doc. 21 at 232), he

- 156 -

1

cites no law to support that assertion, let alone clearly established federal law. Cf. Cox v.

2

Del Papa, 542 F.3d 669, 683 (9th Cir. 2008) (“Nor was it unreasonable for counsel to

3

comment upon the expert statements in the record rather than call the experts to testify

4

directly to the court. Cox offers no reason to believe that the court would have learned

5

anything different or in addition to their reports, and he does not mention any expert who

6

might have offered a new and more powerful mitigating argument.”).

7

Finally, Ellison asserts that the PCR court’s rejection of his ineffective-assistance

8

claim predicted on counsel’s failure to call Durand as a mitigation witness was “legally

9

and factually unreasonable.” (Doc. 21 at 230.) As noted, the PCR court found that “the

10

substance of Mary Durand’s knowledge of Ellison’s childhood and social history were

11

presented in substance to the jury through the testimony of Dr. Richard Lanyon and Dr.

12

Tucker.” (PCR Ruling, 7/13/15 at 10.) Ellison contends this finding is erroneous because

13

Dr. Tucker “presented virtually no testimony of actual events in Ellison’s childhood or

14

social history.” (Doc. 21 at 230.) This is incorrect. Dr. Tucker was asked by defense

15

counsel to assume a series of hypotheticals that directly reflected the facts of Ellison’s

16

childhood and social history. (RT 12/4/04 at 30-59.) Dr. Lanyon and the lay witnesses

17

also testified at length about actual events Ellison experienced in his childhood and youth,

18

including parental neglect, sexual abuse, and drug use.

19

Ellison also argues that, if Durand had testified, she “would have been able to give

20

a detail[ed] account of Ellison’s complete life history,” including his mother’s indifference

21

and cruelty, “the horrific details of the sexual abuse” committed by his older brother, and

22

his rape by a “dangerous and violent bunkmate in prison” when Ellison was in his early

23

20s. (Doc. 21 at 230.) But the PCR court correctly found that “[t]he choice of which

24

witness to use to present important mitigating testimony is a matter of trial strategy.” (PCR

25

Ruling, 7/13/15 at 10.) “Few decisions a lawyer makes draw so heavily on professional

26

judgment as whether or not to proffer a witness at trial.” Lord v. Wood, 184 F.3d 1083,

27

1095 (9th Cir. 1999); see also Rhode v. Hall, 582 F.3d 1273, 1284 (11th Cir. 2009) (“Which

28

witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and

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1

it is one that we will seldom, if ever, second guess”).

2

Iannone did not recall whether he asked Durand to testify. (RT 8/21/14 at 137.)

3

However, he had “a lot of discussions with [her] while she was on the case.” (Id. at 166.)

4

Iannone’s decision not to call Durand thus qualifies as an informed and strategic choice

5

made after a thorough investigation, which, under Strickland, means it is “virtually

6

unchallengeable.” 466 U.S. at 690. At any rate, the record is not clear about Durand’s

7

ability to testify at the sentencing hearing and, as the PCR court found, Iannone found other

8

ways to present the mitigating evidence Durand had gathered while she was active on the

9

case. Under these circumstances, Ellison has not overcome the strong presumption that

10

counsel’s decision not to call Durand was made in the exercise of sound trial strategy.

11

Strickland, 466 U.S. at 690.

12

In sum, counsel’s mitigation-related performance at sentencing was “well within the

13

range of professionally reasonable judgments.” Van Hook, 558 U.S. at 12 (quoting

14

Strickland, 466 U.S. at 699). In Van Hook, defense counsel spoke with the defendant’s

15

mother, father, aunt, and a family friend; met with two expert witnesses; reviewed military

16

and medical records; and “looked into” retaining a mitigation specialist. Id. at 9-10. At

17

sentencing, counsel presented mitigating evidence about the defendant’s traumatic

18

childhood, which was a “combat zone” of physical and sexual violence by the father against

19

the mother, and his impairment due to drugs and alcohol on the day of the crime. Id. The

20

Supreme Court found that the scope of counsel’s investigation was reasonable even though

21

counsel did not interview all of the defendant’s relatives or a psychiatrist who treated his

22

mother. Id. at 11. By this standard, Ellison’s counsel’s performance in investigating and

23

presenting mitigation evidence was not deficient. With the report prepared by Dr. Lanyon

24

and the extensive social history evidence gathered by the mitigation specialists, there was

25

no reason for counsel to suspect that “worse details” about Ellison’s background existed.

26

Id. This was not a case in which counsel “failed to act while potentially mitigating evidence

27

stared them in the face.” Id.; see also McGill, 16 F.4th at 698 (“McGill has not shown that

28

counsel performed deficiently under Strickland at the penalty phase of his trial. The PCR

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1

court reasonably concluded that counsel’s preparation, investigation, and presentation of

2

mitigation evidence was thorough and reasoned. As a whole, the defense team uncovered

3

a ‘not insignificant’ amount of mitigation evidence that spanned decades of McGill’s life

4

and presented a comprehensive picture to the jury.”); Murray, 745 F.3d at 1012-14.

5

Nor was this a case where counsel presented mitigating evidence “to the jury only

6

in the vaguest of terms,” Bean v. Calderon, 163 F.3d 1073, 1081 (9th Cir. 1998), or

7

introduced Ellison’s social history “in a cursory manner that was not particularly useful or

8

compelling,” Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir. 2003), or failed to

9

“explain the significance of the mitigating evidence” that was presented, Mayfield v.

10

Woodford, 270 F.3d 915, 928 (9th Cir. 2001). The lay witnesses, Dr. Tucker, and Dr.

11

Lanyon presented concrete details to the jury about the horrific emotional, physical, and

12

sexual abuse Ellison suffered. The experts also expressly linked that suffering, together

13

with Ellison’s psychological issues, to his criminal behavior.

14

At any rate, once the additional layer of deference mandated by the AEDPA is

15

applied, see Titlow, 571 U.S. at 15, the PCR court’s determination that counsel did not

16

perform deficiently in the investigation and presentation of mitigating evidence was neither

17

contrary to nor an unreasonable application of clearly established federal law, nor was it

18

based on an unreasonable determination of the facts.

19

b.

Subclaim 2: Investigating And Presenting FASD Evidence

20

In subclaim 2 of Claim 45(C), Ellison contends that “in addition to their other

21

failures in mitigation, trial counsel failed to investigate, develop, or present any evidence

22

related to FASD. That failure was deficient and prejudicial.” (Doc. 21 at 235.)

23

The PCR court denied this claim following the evidentiary hearing. (PCR Ruling,

24

7/13/15 at 13-17.) First, the court noted that “at the time of the Ellison sentencing trial in

25

2004, none of his attorneys, nor any other members of the defense team or experts

26

considered fetal alcohol syndrome as a possibility.” (Id. at 13.) The court also noted that

27

Everett, Ellison’s first defense attorney and his Strickland expert at the evidentiary hearing,

28

“testified that he never thought of it (PFAS), either.” (Id.) Likewise, the court noted that

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1

Durand “never considered [FAS or PFAS] because she did not see it in Ellison’s face (most

2

frequently, symptoms of fetal alcohol syndrome include deformities of the facial features,

3

which are not evident in Ellison’s face).” (Id. at 13-14.) The court also noted that “[d]uring

4

the time prior to Ellison’s sentencing trial in 2004, fetal alcohol syndrome and partial fetal

5

alcohol syndrome were not universally recognized within the medical community as a

6

significant diagnosis. The DSM IV did not recognize fetal alcohol syndrome as a mental

7

illness or defect.” (Id. at 14.)

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The court next considered the testimony of Dr. Brown and summarized her
testimony as follows:
She explained that fetal alcohol syndrome means in most cases a high risk of
criminal behavior. A person who suffers from fetal alcohol syndrome will
be a high risk to reoffend. Much like people with anti-social personality
disorders, persons with fetal alcohol syndrome will have poor impulse
control, poor judgment, little or no empathy towards their victims, and poor
communication skills. The most frequently observed criminal offenses
committed by persons with fetal alcohol syndrome are crimes against
persons. Dr. Brown also testified that she and Dr. Adler first testified about
fetal alcohol syndrome in 2007—3 years after Ellison’s sentencing trial.
Dr. Brown acknowledged that Dr. Richard Lanyon described a diagnosis of
attention deficit disorder during his testimony in the sentencing trial. She
agreed that Ellison does suffer from an attention deficit disorder. She further
explained that the ADHD diagnosis has similar elements to the diagnosis of
fetal alcohol syndrome. . . .
Most importantly to this court, was Dr. Brown’s acknowledgement under
cross-examination that significant essential elements of PFAS or FASD
diagnosis were absent in Ellison’s case. Ellison’s detailed and good memory
was inconsistent with her findings of partial fetal alcohol syndrome disorder.
She also acknowledged that Ellison’s canny or savvy behavior with the
police (during his interrogation where he sought a ‘deal’ with the police)
showed significant executive functioning abilities—again inconsistent with
her findings of partial fetal alcohol syndrome disorder. Sufferers from PFAS
were followers, not leaders, per Dr. Brown. And, as Iannone explained in
his testimony, there was strong evidence that Ellison was the leader, not
Finch in the Bouchers’ murder.
(Id. at 19-20.)
The court also “discounted” the testimony of Drs. Adler and Wu, who opined on the
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1

brain imaging results obtained by the MRI and DTI. (Id. at 15 n.24.) The court noted that

2

a neuro-radiologist, Dr. Karis, had read Ellison’s MRI as within normal limits and

3

unremarkable and that DTI studies “are not readily or fully understood by other experts in

4

the field as they relate to normal vs. abnormal brains.” (Id.)

5

The court concluded that “Ellison has failed to prove that he does suffer from either

6

fetal alcohol syndrome disorder or from partial fetal alcohol disorder.” (Id. at 15.) The

7

court elaborated:

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Specifically, it appears that virtually all of the symptoms evidencing partial
or complete fetal alcohol syndrome disorder are also the symptoms for
attention deficit disorder (which were diagnosed by Dr. Lanyon and
presented to Ellison’s sentencing jury), or an anti-social personality disorder.
An anti-social personality disorder is not a mitigating circumstance; rather it
might be considered an aggravating circumstance. That is, that Ellison has a
lack of empathy, is impulsive, he has no remorse, he is prone to criminality,
and he is dangerous and likely to recidivate—all are not mitigating
circumstances. And, finally, Ellison’s good memory and canny, savvy, nonfollower behavior are strong indications that he does not suffer from any
form of fetal alcohol syndrome. However, they are consistent with antisocial personality disorder.
(Id. at 15-16.)
The court then considered the issue of prejudice, concluding there was not a
reasonable probability of a different outcome had counsel presented FASD evidence. (Id.
at 16-17.) The court described the six aggravating factors found by the jury as “compelling
evidence of the jurors’ conclusions that Ellison is dangerous, cruel, and incapable of
empathy.” (Id. at 16.) The court also emphasized that “[t]he factual information regarding
Ellison’s difficult childhood, his drug use, his impaired ability/capacity to conform his
conduct to society’s standards, and the other proposed mitigating circumstances were
presented” at sentencing. (Id. at 16-17.) The court continued:
If evidence of Partial Fetal Alcohol Syndrome had been presented, it is likely
that the state would have presented evidence that these symptoms also
indicated an anti-social personality disorder—and the inherent dangers that
individuals with this disorder present to the public at large. Most
importantly, the murders of Joseph and Lillian Boucher were horribly cruel
murders committed by a person without empathy. . . . That jury saw that
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1

Ellison was a dangerous person previously convicted of serious crimes and
on parole at the time of the murders. It is difficult, if not impossible, to
imagine that any reasonable juror would find that the proposed mitigating
circumstances (assuming that all mitigating circumstances suggested by
Ellison in these proceedings were proven) were sufficiently substantial to call
for leniency for this brutal, cruel crime. I find that no reasonable juror would
so find.

2
3
4
5
6

(Id. at 17.)

7

The PCR court’s ruling was neither contrary to nor an unreasonable application of

8

clearly established federal law, nor was it the result of unreasonable factual determinations.

9

First, counsel’s performance was not deficient. Before the guilt phase of trial, Iannone

10

moved for the appointment of Dr. Levitt, a forensic psychiatrist, to evaluate Ellison and

11

report any “psychiatric issues” to counsel “with specific reference to the exploration of a

12

possible mental health defense . . . and the exploration of mental-health based mitigation

13

factors.” (ROA, Vol. IV, Doc. 121.) The trial court granted the motion. (ROA, Vol. IV,

14

Doc. 127.) Dr. Levitt subsequently cautioned Iannone not to call her as a witness. (RT

15

8/21/04 at 178,)

16

Following the guilty verdicts, Iannone moved for authorization to retain an expert

17

to evaluate Ellison and consult with counsel “regarding any neuropsychological issues that

18

should be presented to the Court prior to sentencing.” (ROA, Vol. V, Doc. 179.) The trial

19

court granted the motion.

20

recommended”—including, in Ellison’s case, by mitigation specialist Durand—and

21

Iannone recalled having worked with him on several previous cases. (RT 8/21/14 at 141,

22

199.)

23

neuropsychological tests, and prepared a 17-page report. (See EIR Doc. 111, Ex. E20.)45

24

Dr. Lanyon concluded that despite a serious head injury suffered as a teenager and a history

25

of drug and alcohol abuse, Ellison’s “neuropsychological evaluation showed no overall

26

impairment of the type that is due to brain dysfunction.” (Id. at 17.)

(ROA, Vol. V, Doc. 180.)

Dr. Lanyon was “well-

Dr. Lanyon conducted a psychological evaluation, performed a battery of

27
“EIR” refers to the documents number in the Electronic Index of Records prepared
in Case No. CR-15-425-PC.
45

28

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1

In deciding not to pursue evidence of organic brain damage, including FASD,

2

Ellison’s counsel were entitled to rely on the findings and opinions of Drs. Levitt and

3

Lanyon. See, e.g., Crittenden, 624 F.3d at 966 (“Attorneys are entitled to rely on the

4

opinions of properly selected, adequately informed and well-qualified experts.”). In

5

Fairbank v. Ayers, 650 F.3d 1243 (9th Cir. 2011), the Ninth Circuit rejected a similar

6

habeas claim of ineffective assistance of counsel. There, the defense presented two experts

7

at sentencing. Id. at 1249. The first was a psychiatrist specializing in addiction medicine

8

who testified “generally” about the effects of cocaine use and drug psychosis. Id. The

9

second was a psychologist, Dr. Fricke, who conducted a psychological exam and referred

10

Fairbank for a neuropsychological evaluation. Id. at 1249, 1252. Based on those test

11

results, Dr. Fricke “ruled out psychosis, mental illness, and neurologic impairment” and

12

instead “concluded that Fairbank had Antisocial Personality Disorder.” Id. at 1252. In

13

seeking habeas relief, Fairbank presented the opinions of new experts, including a

14

neuropsychologist, who opined that he suffered from brain damage at the time of the crime

15

“and that this damage should have been apparent when Fricke conducted his review.” Id.

16

Fairbank also argued that additional mitigating evidence could have been discovered if Dr.

17

Fricke had personally interviewed his health care providers. Id. Nevertheless, the Ninth

18

Circuit rejected the habeas claim, explaining: “Even assuming all the allegations are true,

19

Fairbank cannot prove a Strickland violation, because an expert’s failure to diagnose a

20

mental condition does not constitute ineffective assistance of counsel, and a petitioner has

21

no constitutional guarantee of effective assistance of experts.” Id. (cleaned up).

22

Similarly, in Earp, two psychologists and a psychiatrist examined the defendant at

23

the time of trial and found no organic brain damage. 623 F.3d at 1075-76. Some 11 years

24

later, during his habeas proceedings, Earp offered the opinion of a neuropsychologist who

25

concluded that he had “brain damage that was diagnosable at the time of trial.” Id. at 1076.

26

Nevertheless, the Ninth Circuit determined that defense counsel was not ineffective:

27
28

Earp’s defense counsel was pursuing the possibility of organic brain
damage—there was just no evidence to support that theory. . . . We cannot
fault trial counsel for failing to further investigate potential mitigating
- 163 -

1

evidence of organic brain damage when the thorough defense investigation,
that explicitly pursued the possibility of organic brain damage, uncovered no
helpful information. Furthermore, [the] contradictory diagnosis of organic
brain damage, received eleven years after Earp’s trial, is insufficient to
overcome the contemporaneous documentation that indicated that Earp did
not have organic brain damage. . . . The fact that Earp can now present a
neuropsychologist who is willing to opine that he had organic brain damage
at the time of his trial does not impact the ultimate determination of whether
Earp’s trial counsel insufficiently investigated that possibility.

2
3
4
5
6
7
8

Id.

9

As Crittenden, Earp, and a host of similar Ninth Circuit decisions46 make clear,

10

Ellison’s trial counsel cannot be said to have engaged in deficient performance under these

11

circumstances.

12

It is also important to note, as the PCR court did, that neither Everett (Ellison’s first

13

counsel and his Strickland expert at the post-conviction evidentiary hearing) nor Durand

14

(an experienced and skilled mitigation specialist), both of whom met with Ellison

15

frequently, ever considered the possibility of FASD. Indeed, even when imaging of

16

Ellison’s brain was taken several years after his sentencing, the results were disputed. Dr.

17

Karis, a neuroradiologist, read an MRI taken in 2010 and found it “unremarkable” with

18

“the midline structures . . . within normal limits.” (RT 8/18/14 at 185-87.) Dr. Karis

19

determined that this was “entirely normal, in every respect a normal MRI.” (Id. at 146.)

20

These considerations amplify why Ellison’s trial counsel cannot be said to have rendered

21

ineffective assistance by failing to discover and present the FASD evidence that Ellison’s

22

habeas counsel now believes should have been presented.

23
24
25
26
27
28

46

See, e.g., see Boyer v. Chappell, 793 F.3d 1092, 1103 (9th Cir. 2015); Leavitt v.
Arave, 646 F.3d 605, 609-10 (9th Cir. 2011); West v. Ryan, 608 F.3d 477, 488-89 (9th Cir.
2010); Mitchell v. United States, 790 F.3d 881, 893 (9th Cir. 2015) (“In 2009, habeas
counsel managed to find a doctor, Pablo Stewart. M.D., who would give them a declaration
stating that in 2001 Mitchell suffered from post traumatic stress disorder and substanceinduced psychotic disorder. . . . At most, Dr. Stewart’s new diagnosis of Mitchell’s mental
state, eight years after-the-fact, is a difference in medical opinion, not a failure to
investigate.”) (cleaned up).
- 164 -

1

Finally, the parties disagree about the extent to which a diagnosis of FASD or other

2

fetal alcohol disorders was available as a mitigating circumstance at the time of Ellison’s

3

sentencing in 2004. There is no dispute that at the time such diagnoses were not contained

4

in the DSM-IV-TR; nor, however, is there any dispute that the conditions had been

5

recognized since at least the 1990s. See, e.g., Williams v. Calderon, 52 F.3d 1465, 1471

6

(9th Cir. 1995) (discussing claim that counsel failed to present mitigating evidence that

7

defendant “apparently suffered from fetal alcohol syndrome”).

8

availability of FASD as a mitigating circumstance is ultimately a secondary issue. Again,

9

“the relevant inquiry . . . is not what defense counsel could have pursued, but rather whether

10

the choices made by defense counsel were reasonable.” Murray, 745 F.3d at 1011 (citation

11

omitted). Here, for the reasons already discussed, counsel proceeded reasonably after

12

obtaining an opinion from a qualified expert that their client did not have organic brain

13

damage. Cf. Anderson v. Kelley, 938 F.3d 949, 957 (8th Cir. 2019) (“Though his case may

14

have benefitted had his counsel investigated FASD, we consider ‘not what is prudent or

15

appropriate, but only what is constitutionally compelled.’”) (citation omitted).

Nevertheless, the

16

Alternatively, even if Ellison had shown that counsel performed deficiently in

17

failing to uncover and present evidence that he suffers from FASD, this claim fails to satisfy

18

Strickland’s prejudice prong. As noted, in finding that Ellison was not prejudiced by the

19

omission of FASD evidence, the PCR court noted that such evidence is double-edged,

20

would have been cumulative to the factual evidence presented at sentencing, and would

21

have been insufficient to call for leniency given the strength of the aggravating factors.

22

(PCR Ruling, 7/13/15 at 16-17.)

23

The jury found six aggravating factors, one of which, the multiple-murders

24

aggravator, carries “extraordinary weight” in the sentencing calculus. State v. Hampton,

25

140 P.3d 950, 968 (Ariz. 2006). There is not a reasonable probability that the jury would

26

have reached a different sentence had counsel presented evidence that Ellison suffered

27

from FASD, particularly in light of the powerful mitigation evidence they did present

28

detailing Ellison’s severely dysfunctional family life, chronic substance abuse, and ADHD.

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1

Byram v. Ozmint, 339 F.3d 203, 211 (4th Cir. 2003) (“[E]ven if additional information or

2

records on Byram’s childhood could have been obtained, this is not a case where counsel’s

3

failure to thoroughly investigate kept the jury completely in the dark as to defendant’s

4

alleged mental problems.”) (cleaned up). Dr. Tucker testified that methamphetamine is a

5

“neurotoxin” that causes permanent damage to the brain and that ADHD is a “devastating”

6

“neuropsychiatric disease.” (RT 2/12/04 at 24, 61.) Drs. Tucker and Lanyon also testified

7

about the effects of Ellison’s birth defect, his mother’s emotional cruelty, and the sexual

8

abuse perpetrated by his older brother—factors which led Ellison to self-medicate with

9

drugs and alcohol.

10

Although the Ninth Circuit has recognized that “[i]n some cases, FASD evidence

11

might be sufficiently different from . . . other evidence of mental illness and behavioral

12

issues to raise a reasonable probability that a juror would not have imposed the death

13

penalty had it been presented,” Floyd v. Filson, 949 F.3d 1128, 1141 (9th Cir. 2020)

14

(cleaned up), courts have also consistently recognized that FASD evidence can be a double-

15

edged sword. See, e.g., Brown v. Thaler, 684 F.3d 482, 499 (5th Cir. 2012) (unpresented

16

FASD evidence was “‘double-edged’ because, although it might permit an inference that

17

he is not as morally culpable for his behavior, it also might suggest that he, as a product of

18

his environment, is likely to continue to be dangerous in the future.”) (cleaned up); Trevino

19

v. Davis, 861 F.3d 545, 551 (5th Cir. 2017) (“This is a significant double-edged problem

20

. . . . Jurors could easily infer from this new FASD evidence that Trevino may have had

21

developmental problems reflected in his academic problems and poor decisionmaking, but

22

that he also engaged in a pattern of violent behavior toward both Cruz and Salinas that he

23

understood was wrong.”). Thus, whether the omission of such evidence results in prejudice

24

is a function of the mitigating evidence that was presented and the strength of the

25

aggravating factors. Floyd, 949 F.3d at 1140-41.

26

Ellison’s counsel presented a substantial case in mitigation advancing, among other

27

circumstances, psychological impairments for which Ellison bore no blame, including

28

ADHD and a constellation of significant emotional problems caused by his handicap and

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1

his abusive and neglectful family life. For example, Dr. Tucker testified that ADHD, which

2

has a genetic component, is a disorder of the frontal lobes of the brain where executive

3

functioning, judgment, and reasoning occur. (RT 2/12/04 at 62-64.) Dr. Tucker also

4

testified that impulsivity is one of the symptoms of ADHD and that untreated ADHD is a

5

risk factor for substance abuse, depression, unemployment, and criminal behavior. (Id. at

6

62, 65.) Both Dr. Lanyon and Dr. Tucker testified that the number and severity of the

7

negative factors to which Ellison was subjected—which Dr. Tucker testified were “almost

8

too much to think about together in one person” (id. at 39)—prevented Ellison from

9

developing judgment and coping skills and placed him at a much greater risk for criminal

10

behavior. (Id. at 52-53.) Given this backdrop, it was reasonable for the PCR court to

11

conclude that linking Ellison’s poor judgment and impulsivity to FASD instead of ADHD

12

would not have produced substantial additional mitigating value. See, e.g., Floyd, 949 F.3d

13

at 1140 (“[A] capital petitioner is not necessarily prejudiced when counsel fails to introduce

14

evidence that differs somewhat in degree, but not type, from that presented in mitigation.”);

15

Bible v. Ryan, 571 F.3d 860, 870-71 (9th Cir. 2009) (finding no prejudice from failure to

16

present medical evidence of neurological damage that would have differed only in degree

17

from evidence counsel did present concerning brain damage from persistent drug and

18

alcohol abuse and other causes); Sells v. Stephens, 536 F. App’x 483, 495 (5th Cir. 2013)

19

(“Equally unconvincing is Sells’s assertion that evidence of a fetal alcohol disability would

20

likely have mitigated his sentence. . . . While Sells argues that the blameless nature of fetal

21

alcohol impairment could have had a ‘powerful mitigating effect,’ he ignores the fact that

22

the trial evidence already established that Sells suffered from serious personality and

23

adaptive impairments for which he bore no blame . . . so it is doubtful that Sells would

24

have derived any mitigating benefit merely by linking that diagnosis to fetal alcohol

25

syndrome. Moreover, we have previously found that evidence of fetal alcohol syndrome-

26

related deficiencies is not necessarily beneficial to a criminal defendant.”).

27

Put another way, Ellison’s counsel did not “present[] a much weaker-than-available

28

mitigation argument that was insufficient to overcome an also weak aggravating argument

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1

that clearly troubled some jurors.” Floyd, 949 F.3d at 1141 As an example of such a case,

2

the Ninth Circuit has cited Williams v. Stirling, 914 F.3d 302 (4th Cir. 2019), where the

3

state presented only one aggravating factor and the jury sent a note to the judge on the

4

second day of deliberations indicating it was deadlocked. Floyd, 949 F.3d at 1141. In

5

contrast to Williams, the aggravating factors in Ellison’s case were both numerous and

6

weighty, and there was no evidence that the jury, which deliberated for about a day, had

7

difficulty reaching its verdict.

8

unreasonably in finding that Ellison was not prejudiced by counsel’s failure to pursue

9

FASD as a mitigating circumstance.

This underscores why the PCR court did not act

See also Trevino, 861 F.3d at 550 (rejecting

10

ineffective assistance claim based on failure to present mitigating FASD evidence because

11

counsel “did present evidence from Trevino’s life history” and the FASD evidence would

12

have been outweighed by aggravating evidence); Carter v. Chappell, 2013 WL 1120657,

13

*99-100 (S.D. Cal. 2013) (rejecting petitioner’s argument that “despite the substantial

14

evidence in aggravation, additional testimony regarding his abusive upbringing and

15

evidence of FASD and brain impairments ‘might well have’ affected the jury’s verdict” in

16

part because “[u]nlike in Williams, Petitioner’s trial counsel presented a substantial amount

17

of mitigating evidence, calling twenty witnesses who traced Petitioner’s upbringing in

18

Nome, his foster home and juvenile institutional placements, later incarcerations, and his

19

marriage, children, and divorce, providing the jury with a picture of Petitioner's

20

background and circumstances” and also “presented evidence of his neglect and abuse at

21

the hands of his parents”); Anderson, 938 F.3d at 958 (“Anderson has not shown that it is

22

reasonably probable that the jury would have reached a different conclusion had they been

23

presented with evidence of FASD. Anderson's counsel presented an extensive mitigation

24

case that convinced the jury to find thirty mitigating circumstances. And the jury heard

25

related evidence on Anderson’s brain limitations . . . .”).

26

In an effort to establish prejudice, Ellison cites Wiggins v. Smith, 539 U.S. 510

27

(2003), Rompilla v. Beard, 545 U.S. 374 (2005), and Porter v. McCollum, 558 U.S. 30

28

(2009). (Doc. 21 at 231, 234, 256.) Those citations are unavailing because the weight of

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1

the mitigating evidence that Ellison argues should have presented in his case falls far short

2

of the omitted evidence the Supreme Court found sufficient to satisfy Strickland’s

3

prejudice prong in those cases. Washington v. Shinn, 46 F.4th 915, 930-34 (9th Cir. 2022)

4

(finding no prejudice from counsel’s failure to present evidence of head injuries, harsh

5

discipline, and a “more complete picture of [petitioner’s] background” where the evidence

6

was “not comparable” to the omitted mitigating evidence in Wiggins, Rompilla, and

7

Porter); Rhoades, 638 F.3d at 1051.

8

In Wiggins, for example, counsel offered only one mitigating circumstance (no

9

violent prior convictions) and failed to present evidence that the defendant suffered

10

consistent abuse during the first six years of his life, was the victim of “physical torment,

11

sexual molestation, and repeated rape during his subsequent years in foster care,” was

12

sometimes homeless, and had diminished mental capacities. 539 U.S. at 535. In Rompilla,

13

counsel neglected to present evidence that the defendant was beaten by his father with fists,

14

straps, belts, and sticks; that his father locked him and his brother in a dog pen filled with

15

excrement; that he grew up in a home with no indoor plumbing and was not given proper

16

clothing; and that test results pointed to schizophrenia, fetal alcohol syndrome, and stunted

17

mental development. 545 U.S. at 391-92. In Porter, “[t]he sum total of the mitigating

18

evidence was inconsistent testimony about Porter’s behavior when intoxicated and

19

testimony that Porter had a good relationship with his son.” 558 U.S. at 32. Counsel failed

20

to present mitigating evidence about “(1) Porter’s heroic military service in two of the most

21

critical—and horrific—battles of the Korean War, (2) his struggles to regain normality

22

upon his return from war, (3) his childhood history of physical abuse, and (4) his brain

23

abnormality, difficulty reading and writing, and limited schooling.” Id. at 41.

24

Unlike counsel in Wiggins, Rompilla, and Porter, Ellison’s counsel supported

25

several mitigating circumstances by presenting humanizing evidence through both lay and

26

expert witnesses that detailed the extraordinary set of obstacles Ellison faced growing up,

27

as well as expert testimony about Ellison’s mental health issues, including his depression,

28

substance abuse, and ADHD. Compare Porter, 558 U.S. at 41 (noting that the “judge and

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1

jury at Porter’s sentencing heard almost nothing that would humanize Porter or allow them

2

to accurately gauge his moral culpability”); Rompilla, 545 U.S. at 393 (finding that the

3

evidence discovered after trial “adds up to a mitigation case that bears no relation to the

4

few naked pleas for mercy actually put before the jury”); Stankewitz v. Woodford, 365 F.3d

5

706, 716-20 (9th Cir. 2004) (granting evidentiary hearing on ineffective assistance claim

6

where counsel failed to investigate and present “an excess of privation and abuses”

7

experienced by petitioner as a child, including severe beatings, foster care, organic brain

8

damage to the point of borderline mental retardation, and drug and alcohol abuse,

9

particularly in the days leading up to the killing).

10

As noted, for purposes of Strickland’s prejudice analysis, the “totality” of the

11

mitigating evidence includes that adduced at trial and in subsequent proceedings. Wiggins,

12

539 U.S. at 534, 526. With respect to the latter category, such evidence includes the FASD

13

diagnosis, the omission of which the PCR court reasonably found not to be prejudicial, but

14

little else. The PCR evidentiary hearing did not demonstrate there was other mitigating

15

evidence that should have been presented and which, added to the mitigating evidence that

16

was offered, would have resulted in a reasonable probability of a life sentence. Rather, the

17

hearing showed that testimony from better-prepared lay witnesses, or from Durand, or live

18

rather than telephonic testimony from Dr. Lanyon, would have duplicated the evidence

19

presented at sentencing and “barely . . . altered the sentencing profile presented” to the jury.

20

Strickland, 466 U.S. at 700; see also Babbitt, 151 F.3d at 1175 (finding no prejudice where

21

counsel failed to present cumulative mitigating evidence).

22

At a minimum, in light of the double layers of deference required by Strickland and

23

AEDPA, the PCR court’s rejection of the claim that defense counsel performed

24

ineffectively with respect to FASD evidence was neither contrary to nor an unreasonable

25

application of clearly established federal law, nor was it based on an unreasonable

26

determination of the facts. Titlow, 571 U.S. at 15.

27
28

c.

Subclaim 3: Obtaining A Prison Expert

In subclaim 3 of Claim 45(C), Ellison alleges that counsel performed ineffectively

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1

by failing to “obtain a prison/future dangerousness expert.” (Doc. 21 at 256-60.)

2

As background, on October 13, 2003, counsel filed a “motion for authorization to

3

retain consultants.” (ROA, Vol. VI, Doc. 246.) The motion identified two consultants—

4

James Aiken, a North Carolina-based former prison warden and an expert in the

5

“correctional field”; and Russell Van Vleet, Ph.D., an expert in the juvenile justice

6

system—and provided their resumes. (Id.)

7

The trial court held a brief hearing on the motion. (RT 10/24/03.) Counsel agreed

8

with Judge Moon that one of the areas the defense wished to explore with Aiken was

9

whether Ellison could be safely “locked up” but indicated that Aiken had not yet

10

formulated an opinion on that issue. (Id. at 4.) Judge Moon stated that he didn’t know

11

how Aiken could have any foundation to opine about whether Ellison could be

12

rehabilitated, whether he was an escape risk, “or would or would not ever pose a threat to

13

others.” (Id. at 6.) Judge Moon then expressed skepticism that such testimony would be

14

helpful to the trier of fact. (Id.) The court took the request for Aiken’s appointment under

15

advisement (id. at 7) but ultimately denied it, finding “that there is no showing that Mr.

16

Aiken’s proposed testimony or consultation will assist the jury.” (ME 10/24/03.) During

17

the same hearing, Ellison’s counsel explained that Dr. Van Vleet would investigate “[h]ow

18

Ellison’s juvenile corrections experience contributed to his commission of this crime.” (RT

19

10/24/03 at 7.) The court granted counsel’s motion to retain Dr. Van Vleet. (Id.)

20

Ellison now argues that counsel performed ineffectively by failing to explain the

21

purpose of Aiken’s anticipated testimony—that is, evaluating a prisoner’s record and

22

determining if he would pose a danger to the staff or other prisoners if sentenced to life—

23

and its relevance as mitigating evidence and by failing to file a special action to appeal the

24

trial court’s ruling. (Doc. 21 at 257-58.) Ellison further notes that, in a 2011 report

25

prepared as part of the PCR proceedings, Aiken opined that Ellison “would not pose an

26

unusual danger to correctional officers, officials or inmates” and that, to the contrary,

27

Ellison himself needed to be protected from “the predatory, more dangerous, violent, and

28

disruptive prison population.” (PCR Pet., Ex. H, ¶ 19.) The PCR court summarily rejected

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1

this claim as “clearly related to decisions of trial strategy,” noting that although a “prison

2

expert [might] opine that the Defendant was not violent and posed no danger to society,”

3

“strong evidence to the contrary existed in the Arizona Department of Corrections’

4

records.” (PCR Ruling, 7/16/12 at 5.)47

5

Ellison’s habeas challenge to this ruling is meritless. The record contradicts any

6

suggestion that Judge Moon was somehow unaware that Aiken’s investigation would have

7

addressed Ellison’s potential for danger in prison. Thus, it wasn’t necessary for counsel to

8

further explain the purpose for which they sought Aiken’s appointment. Accordingly,

9

Ellison has failed to overcome the Strickland presumption that counsel’s performance was

10

reasonable. Counsel did not “limit” their investigation or “fail to pursue an expert.” (Doc.

11

21 at 259.) To the contrary, they pursued Aiken’s appointment so they could expand their

12

investigation, only for Judge Moon to disagree about the value of the requested evidence.

13

Ellison fails to cite any case in which an attorney was found ineffective for failing to re-

14

urge a request for expert assistance that had already been denied.

15

In addition, as Respondents note, Ellison cannot show prejudice. Even if Aiken had

16

been appointed before the sentencing phase of trial and opined that Ellison would not pose

17

a danger to guards or inmates if sentenced to life, such evidence would have been of

18

minimal mitigating value, especially in view of the six aggravating factors found by the

19

jury.

20

prisoners,” the factor is accorded “minimal weight because of the expectation that prisoners

21

behave in prison.” State v. Kiles, 213 P.3d 174, 191 (Ariz. 2009).

Even where petitioners have shown themselves to be, unlike Ellison, “model

22

In sum, Ellison has not demonstrated that counsel performed ineffectively with

23

respect to Aiken’s appointment, let alone overcome the second layer of deference accorded

24

the PCR court’s denial of this claim under AEDPA. Richter, 562 U.S. at 105.

25
26
27
28

Aiken’s 2011 report listed Ellison’s disciplinary infractions, which included
threatening inmates with violence and urinating on his cell door; possession of tattooing
paraphernalia; refusal to exit the dining area; manufacture of a dangerous weapon (a “blow
dart made from a sharpened coaxial cable”); possession of dangerous contraband (a “lighter
in his anus”); and failure to produce a urine sample. (PCR Pet., Ex. H, ¶ 12.)
47

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1

d.

Subclaim 4: Brown’s Testimony

2

Ellison alleges in sub-claim 4 of Claim 45(C) that trial counsel were ineffective

3

during the sentencing phase of trial (just as he alleges they were during the guilt phase of

4

trial) in failing to obtain Ellison’s jail records to rebut Vivian Brown’s testimony that she

5

saw Ellison in 1998 near her parents’ home. (Doc. 21 at 260-62.) The PCR court denied

6

this claim as “of little moment or relevance to guilt or punishment.” (PCR Ruling, 7/16/12

7

at 5.)

8

Even if counsel had obtained and used the jail records, casting doubt on Brown’s

9

testimony about the timing of her second sighting of Ellison, there was not a reasonable

10

probability that such evidence would have resulted in a different sentencing-phase verdict.

11

Ellison’s leadership role in the murders was established by other evidence, including

12

Brown’s testimony regarding her first contact with him at her parents’ house in 1997. Thus,

13

Ellison has not rebutted the strong presumption of competent performance under Strickland

14

or shown that he was prejudiced by counsel’s performance. This claim of ineffective

15

assistance is meritless.

16

e.

Subclaim 5: Calling Hill As A Mitigation Witness

17

In subclaim 5 of Claim 45(C), Ellison alleges that counsel performed ineffectively

18

in failing to present the testimony of jailhouse informant Daymond Hill during the

19

sentencing phase of trial. (Doc. 21 at 262-73.) The PCR court concluded this subclaim

20

was not colorable because the issue was “of little moment or relevance to guilt or

21

punishment.” (PCR Ruling, 7/16/12 at 5.)

22

As described above, during the guilt phase of trial, Ellison’s counsel filed a motion

23

in limine to admit Hill’s testimony but Judge Moon found that testimony inadmissible on

24

relevance grounds. The Arizona Supreme Court found no error, explaining that although

25

Hill’s statements may have been “marginally relevant” as to the ringleader issue, they were

26

not relevant as to guilt. Ellison, 140 P.3d at 914.

27

Even assuming the statements would have been admissible at sentencing, Ellison

28

cannot satisfy the doubly deferential standard that applies to this claim. As an initial matter,

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1

Ellison hasn’t shown that Hill was available and willing to testify at the sentencing phase

2

of his trial, which occurred four years after Hill provided his statement to the defense.

3

United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988) (denying ineffective

4

assistance claim based on failure to call a witness because there was “no evidence in the

5

record which establishes that [the witness] would testify. . . .”).

6

More important, Ellison cannot meet his burden of showing prejudice under

7

Strickland. As both Judge Moon and the Arizona Supreme Court noted, Finch’s alleged

8

statements to Hill were of questionable trustworthiness. Ellison, 140 P.3d at 914 (noting

9

Judge Moon’s observation that Finch may have bragged about the murders to protect

10

himself while housed in administrative segregation). And more broadly, the testimony of

11

jailhouse informants like Hill is “met with particular skepticism by juries.” Perry v. New

12

Hampshire, 565 U.S. 228, 262 (2012) (Sotomayor, J., dissenting); see also State v.

13

Carriger, 692 P.2d 991, 1000 (Ariz. 1984) (“We note that testimony of prisoners

14

concerning prison events probably is scrutinized more carefully by a jury than their

15

testimony concerning other events . . . .”). There was not a reasonable probability that

16

Hill’s testimony, with whatever mitigating value the jury assigned it, would have resulted

17

in a finding of leniency given the strength and number of the aggravating factors the jury

18

found.

19

f.

Subclaim 6: Voir Dire Of Sentencing-Phase Jury

20

In subclaim 6 of Claim 45(C), Ellison alleges that counsel performed ineffectively

21

by conducting an “inadequate voir dire” of the sentencing jury—more specifically, by

22

“fail[ing] to conduct a Morgan-based voir dire.” (Doc. 21 at 263-68.) The PCR court

23

found that Ellison had not established ineffectiveness because counsel’s “failure to conduct

24

detailed voir dire was clearly related to decisions of trial strategy” and, in a related vein,

25

found that filing a motion for a change of venue was “not warranted . . . where the

26

sentencing jury deliberated two years after the trial, and the trial jury deliberated three years

27

after the crime, and [there was] no evidence that either of the juries were affected by pretrial

28

publicity.” (PCR Ruling, 7/16/12 at 5-6.)

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1

In Morgan, the Supreme Court held that a defendant is entitled to “an adequate voir

2

dire to identify unqualified jurors,” including those who would “impose death regardless

3

of the facts and circumstances of the conviction.” 504 U.S. at 729, 735. The Court further

4

held that simply asking potential jurors whether they can follow the law and be fair and

5

impartial is insufficient. Id. at 735-36.

6

Ellison’s challenge to counsel’s sentencing-stage performance raises arguments the

7

Court previously addressed and rejected with respect to the sufficiency of the guilt-phase

8

voir dire and the extent and nature of the pretrial publicity. The Court will not repeat its

9

analysis of those issues.

10

Ellison also argues that counsel failed to inquire about the effect the victims’ ages

11

would have on jurors in rendering a verdict. (Doc. 21 at 265-67.) This argument is

12

unavailing. The trial court administered a juror questionnaire.48 (RT 1/28/04 at 1 [“The

13

record will show the presence of the defendant and a panel of 174 prospective jurors. . . .

14

We’re doing to start the process of jury selection by having all of you complete a

15

questionnaire under oath . . . .”].) Before beginning voir dire, the court informed the panel

16

of the aggravating factors alleged by the State, include the age of the victims. (RT 2/4/04

17

at 64-65.) The court also listed the potential mitigating circumstances, noted each party’s

18

burden of proof, and explained how the jury would balance aggravating and mitigating

19

circumstances in reaching its verdict. (Id. at 67.) The court asked if any prospective jurors

20

felt they would be unable to follow those procedures, and no hands were raised. (Id.) The

21

court also questioned the panel about their exposure to information about the case. (RT

22

2/4/04 at 42-67; RT 2/5/04 at 32.) The court and counsel also questioned prospective jurors

23

individually. Individual voir dire focused primarily on the answers the prospective jurors

24
25
26
27
28

Ellison’s counsel filed a motion to submit jury questionnaire before the sentencing
phase. (ROA, Vol. V, Doc. 205.) Attached was a proposed 20-page, 115-question juror
questionnaire. (Id.) The court granted the motion, took under advisement the contents of
the questionnaire, and stated it would draft a questionnaire and provide it to counsel. (ME
11/15/02.) The final sentencing-phase questionnaire, however, does not appear to be a part
of the state court record before this Court.
48

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1

provided on their questionnaires about the death penalty. (RT 2/4/04 at 70-264; RT 2/5/04

2

at 72–241.) Defense counsel participated actively in the voir dire of these prospective

3

jurors, including asking “life-qualifying” questions. Morgan, 504 U.S. at 726.

4

Ellison nonetheless contends that counsel’s voir dire performance was inadequate.

5

As with his guilt-phase claim of ineffective assistance during voir dire, Ellison fails to

6

prove either deficient performance or prejudice. “The conduct of voir dire ‘will in most

7

instances involve the exercise of a judgment which should be left to competent defense

8

counsel.’” Hovey, 458 F.3d at 909-10 (quoting Gustave, 627 F.2d at 906). Ellison again

9

contends there was no evidentiary support for the PCR court’s determination that counsel’s

10

performance was a matter of trial strategy. (Doc. 21 at 267.) But under Strickland, it is

11

presumed that counsel’s actions might be a matter of sound trial strategy. 466 U.S. at 689.

12

Ellison fails to rebut that presumption. Stanford v. Parker, 266 F.3d 442, 455 (6th Cir.

13

2001) (“Since our ‘scrutiny of counsel’s performance must be highly deferential,’ and

14

Stanford has presented no evidence to rebut the presumption that counsel’s failure to ask

15

life-qualifying questions . . . constituted sound trial strategy, we reject his ineffective

16

assistance claim under Strickland’s performance prong.”) (citation omitted).

17

Ellison also contends that counsel should have objected to the trial court’s

18

“misstatements of the law.” (Doc. 21 at 265.) However, in the purported misstatement

19

(RT 1/28/04 at 12), the court did not misstate the law.49 Ellison also fails to show prejudice

20

resulting from counsel’s performance. Prejudice exists in this context if counsel fails to

21

question or move to strike a juror who is found to be biased. Fields, 503 F.3d at 776; Davis

22

v. Woodford, 384 F.3d 628, 643 (9th Cir. 2004). But Ellison does not argue that any biased

23

jurors were empaneled. Sechrest, 816 F. Supp. 2d at 1039 (“Sechrest does not make any

24
25
26
27
28

Judge Moon instructed the panel, with respect to mitigating circumstances: “Some
of you might find one, some of you might find another, and you don’t all have to agree on
which mitigating circumstances apply, but then you do all have to agree whether or not the
mitigators that you each individually find to be true—whether or not those are sufficiently
substantial to call for leniency and to not impose the death penalty.” (RT 1/28/2004 at 12.)
Ellison does not specify what is incorrect in this formulation, but the unanimity
requirement, for example, is a correct statement of the law. Ellison, 140 P.3d at 922.
49

- 176 -

1

allegation . . . that any individual who was actually seated on the jury was biased.

2

Therefore, Sechrest cannot show that any conceivable shortcoming of his counsel’s

3

performance with respect to juror voir dire caused him prejudice.”); Campbell, 674 F.3d at

4

594 (“Notably, Campbell has not identified any juror who was actually seated that

5

indicated an inability to set aside any prior knowledge about the case or to judge the case

6

fairly and impartially.”); Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011) (“Ybarra

7

has not made the required showing of prejudice under Strickland, because he has not shown

8

that any juror who harbored an actual bias was seated on the jury as a result of counsel’s

9

failure to voir dire on the insanity defense.”).

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

In Stanford, the Sixth Circuit rejected a Morgan-based claim of ineffective
assistance during voir dire, explaining:
Under Strickland’s prejudice prong, Stanford’s counsel’s failure to ask lifequalifying questions during general voir dire did not constitute ineffective
assistance of counsel. First, there is no evidence that any potential jurors
were inclined to always sentence a capital defendant to death. Second,
nothing in the record indicates that counsel’s failure to ask life-qualifying
questions led to the impanelment of a partial jury. Third, considering the
totality of the evidence, there is no reasonable probability that, even if
defense counsel erred, the sentencer would have concluded that the balance
of aggravating and mitigating circumstances did not warrant death.
266 F.3d at 455. For the same reasons, Ellison cannot show he was prejudiced by counsel’s
performance at voir dire.
The PCR court’s denial of this claim was neither contrary to nor an unreasonable
application of clearly established federal law, nor was it based on an unreasonable
determination of the facts.
g.

Subclaim 7: Sentencing-Phase Instructions

In subclaim 7 of Claim 45(C), Ellison alleges that counsel performed ineffectively

25

by “failing to correct the sentencing-phase instructions.” (Doc. 21 at 268-70.) The PCR

26

court rejected this claim as not colorable because Ellison’s characterization of the

27

sentencing instructions as “confusing” was merely “Defendant’s unsupported opinion.”

28

(PCR Ruling, 7/16/12 at 6.)
- 177 -

1

Before Ellison’s presentation of mitigating evidence, the trial court instructed the

2

jury that “[a] mitigating circumstance is any factor relevant in determining whether to

3

impose a sentence less than death, including any aspect of the defendant’s character,

4

propensities, record, or circumstances of the offense.” (RT 2/10/04 at 4.) At the close of

5

evidence, the court instructed the jury that “[a] mitigating circumstance is one which

6

weighs in favor of leniency and against imposition of the death penalty. Mitigating

7

circumstances relate to any aspects of the defendant’s character, propensities, history, or

8

records, or any circumstances that the jury feels appropriate.” (RT 2/13/04 at 15-16.) The

9

court also listed the five mitigating circumstances proposed by Ellison and added that the

10

jury was “not limited to these mitigating circumstances” and must “also consider any other

11

information admitted as evidence that is relevant in determining whether to impose a

12

sentence less than death.” (Id. at 18.)

13

Ellison contends that counsel performed ineffectively by failing to request an

14

instruction defining a mitigating circumstance as “anything that ‘in fairness or mercy may

15

be considered as extenuating or reducing the degree of moral culpability or blame or which

16

justify a sentence [] less than death.’” (Doc. 21 at 268, quoting Kansas v. Marsh, 548 U.S.

17

163, 175 (2006)).

18

This argument lacks merit. In Boyde v. California, 494 U.S. 370 (1990), the

19

Supreme Court held that the legal standard for reviewing jury instructions that are claimed

20

to restrict a jury’s consideration of relevant mitigation evidence is “whether there is a

21

reasonable likelihood that the jury applied the challenged instruction in a way that

22

prevented the consideration of constitutionally relevant evidence.” Id. at 380. The trial

23

court’s instructions in Ellison’s case did not prevent the jury’s consideration of mitigation

24

evidence. To the contrary, Judge Moon specifically instructed the jury that it was to

25

consider, as possible mitigation, “any factor relevant in determining whether to impose a

26

sentence less than death, including any aspect of the defendant’s character, propensities,

27

record, or circumstances of the offense” along with any other circumstance “the jury feels

28

is appropriate” and “any other information admitted as evidence that is relevant in

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1

determining whether to impose a sentence less than death.” (RT 2/10/04 at 4; RT 2/13/04

2

at 15-16, 18.) These instructions, which are far less restrictive than the instruction upheld

3

in Boyde,50 did not preclude jurors from giving meaningful consideration to any mitigating

4

factor, including fairness or mercy. See, e.g., Krawczuk v. Sec’y, Fla. Dep’t of Corr., 2015

5

WL 4645838, *18 (M.D. Fla. 2015) (“The trial court did not issue any instruction that

6

prevented the jury’s consideration of mitigation evidence. To the contrary, the trial judge

7

specifically instructed the jury that they were to consider, as possible mitigation, ‘any other

8

aspect of the defendant’s character or record, or any other circumstance of the offense.’

9

The instructions did not prevent jurors from giving meaningful consideration to any

10

mitigating factor, including their feelings of mercy for Petitioner.”), aff’d, 873 F.3d 1273

11

(11th Cir. 2017).

12

Ellison cites evidence of apparent juror confusion during voir dire about the concept

13

of mitigation as proof that the mitigation instruction was inadequate. (Doc. 21 at 268.)

14

This argument is unpersuasive because voir dire took place before the court instructed the

15

jury on the definition of mitigation circumstances and before any argument or evidence

16

was presented.

17

proceedings,” including the presentation of mitigating evidence and the court’s instruction

18

that the jury was to consider all the evidence received during the case, “would have led

19

reasonable jurors to believe that evidence of petitioner’s background and character could

20

be considered in mitigation”).

21
22

Cf. Boyde, 494 U.S. at 383 (explaining that the “context of the

Ellison has failed to meet his burden under Strickland or AEDPA. This claim is
meritless.

23

h.

Subclaim 8: Closing Argument

24

In subclaim 8 of Claim 45(C), Ellison alleges that counsel performed ineffectively

25

by “failing to present a coherent closing argument or to object to the prosecutor’s closing

26
27
28

At issue in Boyde was a “catch-all” mitigating factor which supplemented the 11
statutory mitigators and provided: “Any other circumstance which extenuates the gravity
of the crime even though it is not a legal excuse for the crime.” 494 U.S. at 374.
50

- 179 -

1

argument.” (Doc. 21 at 270-72.) He asserts that counsel “failed to explain how Ellison’s

2

life story led to him being on trial for murder” and “used arguments that were counter to

3

. . . any of the effective themes known to be persuasive with capital jurors.” (Id.) Ellison

4

also contends that counsel performed ineffectively by failing to object to the prosecutor’s

5

mischaracterizations of mitigating evidence. The PCR court summarily denied this claim

6

as not colorable. (PCR Ruling, 7/16/12 at 6.)

7

Ellison’s criticisms of counsel’s closing argument miss the mark. Counsel’s theme

8

was that, although Ellison was to some degree responsible for his conduct, his degree of

9

responsibility was compromised by a number of factors outside his control that were

10

catastrophic when taken together. (RT 2/13/04 at 28.) The factors included Ellison’s

11

family life, a circumstance that was not of his choosing. (Id.) Counsel argued that Ellison

12

was scapegoated, beaten by his father, ignored by his mother, and sexually molested by his

13

older brother. (Id. at 30-33.) Counsel argued that Ellision acted out in negative ways

14

because he was desperate for attention. (Id.) Counsel argued that, instead of learning

15

coping skills, Ellison abused alcohol and drugs, including methamphetamine—which his

16

older brother Mike taught him to use intravenously—to numb the pain. (Id. at 33.) Counsel

17

argued that Ellison suffered chronic physical and emotional pain from the many surgeries

18

and the bullying that resulted from his birth defect. (Id. at 31.) Counsel also emphasized

19

that Ellison suffered from ADHD, a genetic condition. (Id. at 31.) Counsel argued that

20

“pain was the central fact of Charlie’s life.” (Id. at 32.)

21

Counsel conceded that Ellison was legally and morally responsible for the murders,

22

and therefore needed to be punished, but argued that his “ability to appreciate right from

23

wrong” was “diminished by his environment,” including the alcohol and drugs he used and

24

the fact that he grew up without any positive role models. (Id. at 34-35.) Counsel noted

25

as emblematic of Ellison’s dysfunctional family that Ellison’s mother and brother Ken had

26

been late for their testimony because Mrs. Ellison was gambling at a casino and couldn’t

27

leave because she was on a “hot streak.” (Id. at 35.) Counsel also argued that Ellison

28

showed no real violence in his prior convictions, including the armed robbery offense,

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1

which he described in detail. (Id. at 41-42.) Counsel urged that Ellison, despite his “pretty

2

dumb decisions . . . is still a man. He’s not a monster. He’s not a caricature. He’s a human

3

being.” (Id. at 43.) Counsel concluded by arguing that pain, alcohol, and drugs had

4

damaged Ellison’s brain, but Ellison was “responsible for where he was even if he couldn’t

5

control exactly how he got there.” (Id. at 44.) Counsel argued that a life sentence rather

6

than death was the appropriate sentence. (Id.)

7

In his rebuttal closing argument, counsel, responding to the prosecution’s

8

arguments, again asserted that Ellison’s brain had been damaged by his use of

9

methamphetamine, a neurotoxin. (Id. at 79.) Counsel also detailed the evidence supporting

10

the allegation that Ellison was sexually abused by his brother. (Id. at 76-79.) Counsel

11

asked the jury to weigh the mitigating circumstances fairly; to “recognize that the road

12

Charlie took was not entirely of his own choosing” and “was not one that he was free to

13

control in all respects”; that “he made some terrible decisions” and “did wrong”; and that

14

he would be “punished for that.” (Id. at 83-84.) Counsel concluded by stating: “But the

15

appropriate and the just punishment . . . is life in prison. It is not death.” (Id. at 84.)

16

“The right to effective assistance extends to closing arguments.” Yarborough v.

17

Gentry, 540 U.S. 1, 5 (2003). “Nonetheless, counsel has wide latitude in deciding how

18

best to represent a client, and deference to counsel’s tactical decisions in his closing

19

presentation is particularly important because of the broad range of legitimate defense

20

strategy at that stage.” Id. at 5-6. “Closing arguments should sharpen and clarify the issues

21

for resolution by the trier of fact, but which issues to sharpen and how best to clarify them

22

are questions with many reasonable answers.” Id. at 6 (citation omitted). “Judicial review

23

of a defense attorney’s summation is therefore highly deferential—and doubly deferential

24

when it is conducted through the lens of federal habeas.” Id.

25

Under this highly deferential review, and applying Gentry as clearly established

26

federal law, counsel did not perform ineffectively during his closing argument and the PCR

27

court was not objectively unreasonable in rejecting the claim that he did. Contrary to

28

Ellison’s arguments, counsel focused on the elements of Ellison’s “life story [that] led him

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1

to being on trial for murder.” (Doc. 21 at 270.) This was the “unifying theme,” Gentry,

2

540 U.S. at 6, throughout counsel’s summation—that emotional, physical, and sexual

3

abuse within the family, combined with the emotional and physical pain resulting from his

4

birth defect, contributed to Ellison’s alcohol and drug abuse, and all of these factors were

5

“piled on him whether he could carry them or not.” (RT 2/13/04 at 37.) Counsel

6

emphasized that although these circumstances, some of which were beyond his control, did

7

not absolve Ellison of responsibility, they were part of the “long, ugly, painful road” by

8

which Ellison “got to the back door of the Boucher home.” (Id. at 44.)

9

In Gentry, the Court observed that even where counsel omitted some

10

“unquestionably” supportive arguments, “it does not follow that counsel was incompetent

11

for failing to include them. Focusing on a small number of key points may be more

12

persuasive than a shotgun approach.” 540 U.S. at 7. In Ellison’s case, counsel did not omit

13

any supportive arguments in mitigation of the crimes. Smith v. Spisak, 558 U.S. 139, 155

14

(2010) (“Nor does Spisak tell us what other mitigating factors counsel might have

15

mentioned.”).

16

Ellison faults counsel for comments describing him as morally responsible for the

17

crimes, blameworthy, and deserving of punishment and as an addict and alcoholic who

18

made dumb, flawed decisions. (Doc. 21 at 271.) But in Gentry, the Court explained that

19

“confessing a client’s shortcomings . . . is precisely the sort of calculated risk that lies at

20

the heart of an advocate’s discretion.

21

shortcomings, counsel might have built credibility with the jury and persuaded it to focus

22

on the relevant issues in the case.” 540 U.S. at 9. By the time of counsel’s closing

23

argument, Ellison had been convicted of two murders and the sentencing-stage jury had

24

just found six aggravating factors. Acknowledging responsibility for the crimes at that

25

point posed very little risk. Spisak, 558 U.S. at 155 (finding that “a less descriptive closing

26

argument with fewer disparaging comments about Spisak” would not have made a

27

“significant difference” where sentencing occurred immediately after guilt phase and the

28

gruesome facts of the crime were fresh in the jurors’ minds).

By candidly acknowledging his client’s

- 182 -

1

Ellison also argues that counsel performed ineffectively by failing to object when

2

the prosecutor improperly suggested that the jury must find a causal connection between

3

the mitigating evidence and the crimes. (Doc. 21 at 271-72.) Although it is true that a jury

4

cannot be prevented from giving effect to mitigating evidence solely because it has no

5

causal nexus to the crime, see Tennard v. Dretke, 542 U.S. 274, 287 (2004), “the failure to

6

establish such a connection may be considered in assessing the quality and strength of the

7

mitigation evidence.” State v. Newell, 132 P.3d 833, 849 (2006); see also Ellison, 140 P.3d

8

at 927. In Ellison’s case, the prosecutor did not tell the jury it could consider only evidence

9

connected to the crime; rather, he spoke repeatedly about how much mitigating weight the

10

jury should assign to the evidence. (RT 2/13/04 at 48, 52, 55, 57, 60, 61.) Because those

11

comments were not improper, counsel did not perform ineffectively in failing to object.

12

As Ellison notes, there were instances in which the prosecutor arguably

13

mischaracterized the mitigation evidence—for example, by asking the jury whether the

14

mitigation evidence presented had “anything to do with these two murders” and by

15

suggesting that mitigation evidence consists of things like self-defense, jealousy,

16

retribution, or a drug deal gone bad. (RT 2/13/04 at 64–65.) Contrary to Ellison’s

17

argument, however, defense counsel did address the prosecutor’s comments. In his rebuttal

18

closing argument, counsel asked the jury to “disregard” the prosecutor’s misstatements,

19

which he characterized as an “interesting aside, but . . . not the law,” and to look instead to

20

the court’s instructions on mitigation, which counsel then repeated to the jury. (Id. at 80-

21

81.)

22

Counsel did not perform ineffectively in his mitigation-phase closing argument or

23

in his handling of the prosecutor’s closing argument. The PCR court reasonably applied

24

clearly established federal law in denying this claim. At a minimum, under AEDPA’s

25

doubly deferential standard, Ellison is not entitled to relief.

26

i.

Subclaim 9: Prosecutor’s Statements About Finch

27

In subclaim 9 of Claim 45(C), Ellison alleges that counsel performed ineffectively

28

by failing to rebut or object to “the prosecutor’s misleading and improper statements

- 183 -

1

regarding Finch.” (Doc. 21 at 272-73.) Ellison acknowledges that he did not raise this

2

claim in state court. (Id. at 273.) He argues the default is excused under Martinez by the

3

ineffective assistance of PCR counsel. (Id.)

4

During his closing argument, the prosecutor told the jury that “Mr. Finch did not

5

have any serious priors on his record” and was not on parole. (RT 2/13/04 at 62.) Ellison

6

claims these statements were “misleading” because Finch had “at least three” felony

7

convictions—possession of controlled substance, forgery, and possession of stolen

8

property—and because there was an open warrant for his arrest in Washington when he

9

was arrested for the crimes in this case. (Doc. 21 at 272-73.)

10

The prosecutor’s statements about Finch’s record were made in response to defense

11

counsel’s reminder to the jury that Finch received a life sentence. (RT 2/13/04 at 43, 62.)

12

The prosecutor was explaining the factors that distinguished Finch and Ellison, including,

13

as aggravating factors found by the jury, that Ellison had a prior “serious” felony, as

14

statutorily defined,51 and was on parole when he committed the murders. It was factually

15

accurate for the prosecutor to draw these distinctions between Ellison and Finch (who was

16

not on parole and whose prior convictions did not qualify as “serious” under Arizona law),

17

so Ellison’s counsel had no basis for objecting.

18

The underlying claim that trial counsel performed ineffectively is without merit.

19

Therefore, cause does not exist for the claim’s default. Runningeagle, 825 F.3d at 982.

20

The claim is thus barred from federal review.

21

j.

Subclaim 10: Ellison’s Parole Ineligibility

22

The trial court instructed the jury that Ellison faced two sentences, death or life

23

imprisonment, with life imprisonment meaning either natural life or life with the possibility

24

of release after 25 years. (RT 2/4/04 at 41.) In subclaim 9 of Claim 45(C), Ellison relies

25

on Lynch v. Arizona, 578 U.S. 613 (2016) (per curiam), to allege that counsel performed

26

ineffectively by failing to inform the jury that he would not have been eligible for parole if

27
Under A.R.S. §13-703(H)(1)(h), armed robbery met the definition of a “serious
felony” for aggravation purposes. Ellison, 140 P.3d at 927.
51

28

- 184 -

1

sentenced to life. (Doc. 21 at 273-75.) Ellison acknowledges he did not raise this claim in

2

state court. (Id. at 275.) He argues its default is excused by the ineffective assistance of

3

PCR counsel. (Id.) Martinez does not provide cause to excuse the procedural default

4

because, as set forth below, the claim is plainly meritless.

5

In Simmons v. South Carolina, 512 U.S. 154 (1994), the Supreme Court held that

6

when a capital defendant’s future dangerousness is at issue and state law prohibits his

7

release on parole, he has a due process right to inform the jurors of his parole ineligibility.

8

Until 2012, Arizona law permitted imposition of a parole-eligible life sentence for

9

defendants convicted of first-degree murder. See A.R.S. § 13-703(A)(2000), renumbered

10

as A.R.S. § 13-751(A). In 1994, however, Arizona effectively abolished parole for all

11

inmates convicted of felonies. See A.R.S. § 41-1604.09(I). Accordingly, at the time of

12

Ellison’s sentencing, Arizona defendants facing death sentences were statutorily eligible

13

to receive life-with-parole sentences but, as a practical matter, could not be paroled.

14

Critically, at that time, the Arizona Supreme Court had yet not considered

15

Simmons’s applicability to Arizona’s capital jury-sentencing process in light of § 41-

16

1604.09(I). However, in 2008, the Arizona Supreme Court rejected an argument that

17

Simmons required a trial court to “presentence” a defendant by deciding before trial

18

whether it would impose a parole-eligible life sentence and instruct the jury accordingly.

19

State v. Cruz, 181 P.3d 196, 207 (Ariz. 2008). The court reasoned that Simmons did not

20

require reversal because “[n]o state law would have prohibited [the defendant’s] release on

21

parole after serving twenty-five years, had he been given a life sentence.” Id. (citing A.R.S.

22

§ 13-703(A) (2004)). In later years, the Arizona Supreme Court reaffirmed that Simmons

23

did not apply in Arizona because a defendant facing a death sentence was eligible to receive

24

a life sentence with the possibility of parole under A.R.S. § 13-751(A). See, e.g., State v.

25

Lynch, 357 P.3d 119, 138–39 (Ariz. 2015).

26

One year after the Arizona Supreme Court’s decision in Lynch—and 12 years after

27

Ellison’s sentencing—the United States Supreme Court overruled the Arizona Supreme

28

Court’s precedent, holding that Arizona courts had incorrectly interpreted Simmons.

- 185 -

1

Lynch, 578 U.S. at 614-16. The Court concluded, based on § 41-1604.09(I), that an

2

Arizona capital defendant is ineligible for parole within Simmons’s meaning. Id. The

3

Court thus held that, when future dangerousness is at issue, an Arizona capital defendant

4

has the “right to inform his jury of that fact [parole-ineligibility].” Id. at 616.

5

Despite this change in the law, Ellison has not met his burden of showing that

6

counsel performed deficiently by failing to object to or correct the court’s instruction. At

7

the time of Ellison’s sentencing, A.R.S. § 13-751(A) expressly provided for a parole-

8

eligible life sentence and neither the Arizona Supreme Court nor the United States Supreme

9

Court had addressed how Simmons, § 41-1604.09(I), and § 13-751(A) interacted. Given

10

that backdrop, reasonable counsel could have concluded that Ellison was in fact parole-

11

eligible (and, therefore, there were no grounds for an objection). Indeed, in a series of

12

decisions issued between 2008 and 2015, the Arizona Supreme Court reached that very

13

conclusion, which establishes that reasonable counsel in 2004 could have reached the same

14

conclusion, too. See, e.g., Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (“Lowry’s

15

lawyer cannot be required to anticipate our decision in this later case, because his conduct

16

must be evaluated for purposes of the performance standard of Strickland as of the time of

17

counsel’s conduct”) (citation omitted); Gerard v. Gootkin, 856 F. App’x 645, 646-47 (9th

18

Cir. 2021) (“Lacey's counsel cannot be found ineffective for failing to argue a theory that

19

had not been developed at the time of adjudication. Lawyers are not required to anticipate

20

future changes in the law, but rather under Strickland are evaluated as of the time of their

21

conduct. The failure to predict future changes in the law cannot be considered ineffective

22

assistance.”) (cleaned up); May v. Ryan, 807 F. App’x 632, 634-35 (9th Cir. 2020) (“Given

23

the long-standing Arizona rule . . . which provided the background for the prevailing

24

professional practice at the time of the trial, we cannot conclude that trial counsel’s failure

25

to object to the constitutionality of the statute[] . . . fell below an objective standard of

26

reasonableness”) (citations omitted); Brown v. United States, 311 F.3d 875, 878 (8th Cir.

27

2002) (“Brown . . . argues that his counsel’s failure to have made an Apprendi-type

28

argument prior to the Apprendi decision constituted ineffective assistance of counsel. We

- 186 -

1

reject Brown’s argument. Instead, we hold that his counsel’s decision not to raise an issue

2

unsupported by then-existing precedent did not constitute ineffective assistance.”). See

3

also Lewis v. Thornell, 2024 WL 909810, *1 (9th Cir. 2024) (“At the time the state post-

4

conviction petition was filed, there was widespread confusion about the availability of

5

parole for first degree murder in Arizona, and an Arizona Supreme Court case, later

6

disapproved, stated that parole for first degree murder was available. The practice of

7

lawyers and judges often assumed the availability of parole, and many defendants had been

8

given sentences that included the possibility of parole despite the statute abolishing parole.

9

. . . Given those circumstances, it was reasonable for Lewis’s post-conviction counsel not

10

to raise a claim of ineffective assistance of counsel related to Lewis’s illegally lenient

11

sentence.”). For the same reason, there is no support for the proposition that the trial court

12

would have granted an objection to the instruction.

13

Because the underlying claim of trial-counsel ineffectiveness is without merit, cause

14

does not exist for the claim’s default. Runningeagle, 825 F.3d at 982. The claim therefore

15

remains barred from federal review.

16

III.

Systemic Challenges

17

Ellison raises a number of challenges to Arizona’s death penalty scheme and to

18

capital punishment in general. Most of these clams were raised on direct appeal and

19

summarily rejected by the Arizona Supreme Court, which pointed to its previous decisions

20

denying similar claims. Ellison, 140 P.3d at 929. Ellison argues that AEDPA deference is

21

inapplicable because the Arizona Supreme Court did not address the claims on the merits

22

“but only presented the issues in its appendix.” (See, e.g., Doc. 21 at 169.) This is

23

incorrect. “Where a state court’s decision is unaccompanied by an explanation, the habeas

24

petitioner’s burden still must be met by showing there was no reasonable basis for the state

25

court to deny relief.” Richter, 562 U.S. at 98 (“There is no merit to the assertion that

26

compliance with § 2254(d) should be excused when state courts issue summary rulings

27

. . . .”).

28

…

- 187 -

1

A.

2

In Claim 30, Ellison alleges that capital punishment is categorically cruel and

3

unusual, in violation of the Eighth and Fourteenth Amendments. (Doc. 21 at 169-73.)

4

However, he does not indicate how the Arizona Supreme Court’s denial of this claim

5

conflicts with or unreasonably applies clearly established federal law. Supreme Court

6

precedent holds that the death penalty does not constitute cruel and unusual punishment.

7

Gregg v. Georgia, 428 U.S. 153, 169 (1976); Glossip v. Gross, 576 U.S. 863, 881 (2015)

8

(“[W]e have time and again reaffirmed that capital punishment is not per se

9

unconstitutional.”).

Claim 30

10

B.

11

In Claim 31, Ellison alleges that execution by lethal injection is cruel and unusual

12

Claim 31

punishment under the Eighth and Fourteenth Amendments. (Doc. 21 at 173-81.)

13

The Arizona Supreme Court’s denial of this claim was not contrary to or an

14

unreasonable application of clearly established federal law. See, e.g., Baze v. Rees, 553

15

U.S. 35 (2008) (“This Court has never invalidated a State’s chosen procedure for carrying

16

out a sentence of death as the infliction of cruel and unusual punishment.”). Neither the

17

United State Supreme Court nor the Ninth Circuit has concluded that Arizona’s lethal

18

injection protocols violate the Eighth Amendment. Dickens v. Brewer, 631 F.3d 1139 (9th

19

Cir. 2011).

20

Ellison also raises allegations that focus on Arizona’s particular lethal injection

21

protocols and history. But Ellison may bring a protocol-related challenge in a separate

22

civil rights action under 42 U.S.C. § 1983. Hill v. McDonough, 547 U.S. 573, 579-80

23

(2006); Nance v. Ward, 142 S. Ct. 2214, 2223 (2022).

24

C.

25

In Claim 32, Ellison alleges that Arizona’s capital-sentencing scheme violates the

26

Eighth and Fourteenth Amendments because it requires a death sentence when the jury

27

finds one aggravating circumstance and no mitigating circumstances. (Doc. 21 at 181-82.)

28

The Arizona Supreme Court’s denial of the claim was neither contrary to nor an

Claim 32

- 188 -

1

unreasonable application of clearly established federal law.

2

Arizona’s death penalty scheme allows certain, statutorily defined aggravating

3

factors to be considered in determining eligibility for the death penalty. For death to be an

4

appropriate sentence, at least one aggravating factor must be found and the sentencer must

5

determine that the mitigating circumstances do not warrant a lesser sentence. This scheme

6

has been found constitutionally sufficient. Jeffers, 497 U.S. at 774-77; Walton, 497 U.S.

7

at 649-56; Woratzeck, 97 F.3d at 334-35; Smith, 140 F.3d at 1272.

8

D.

Claim 33

9

In Claim 33, Ellison alleges that Arizona’s capital-sentencing scheme violates the

10

Eighth and Fourteenth Amendments because it creates a presumption that death is the

11

appropriate sentence and requires a defendant to affirmatively prove that the jury should

12

spare his life. (Doc. 21 at 182-84.) The Arizona Supreme Court’s denial of the claim was

13

neither contrary to nor an unreasonable application of clearly established federal law.

14

The United States Supreme Court has rejected the claim that Arizona’s capital-

15

sentencing scheme is impermissibly mandatory and creates a presumption in favor of the

16

death penalty. Walton, 497 U.S. at 651-52; see also Smith, 140 F.3d at 1272.

17

E.

Claim 34

18

In Claim 34, Ellison alleges that Arizona’s capital-sentencing scheme violates the

19

Fifth, Sixth, Eighth, and Fourteenth Amendments because it does not require the State to

20

prove beyond a reasonable doubt that the death penalty is the appropriate sentence. (Doc.

21

21 at 184-88.) The Arizona Supreme Court’s denial of this claim was neither contrary to

22

nor an unreasonable application of clearly established federal law.

23

The Constitution does not require a death penalty statute to set forth specific

24

standards for a capital sentencer to follow when considering aggravating and mitigating

25

circumstances.

26

balancing aggravating against mitigating circumstances are not constitutionally required”);

27

Tuilaepa v. California, 512 U.S. 967, 979-80 (1994) (“A capital sentencer need not be

28

instructed how to weigh any particular fact in the capital sentencing decision.”). In Kansas

Zant, 462 U.S. at 875 n.13 (explaining that “specific standards for

- 189 -

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

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. at 175 (quoting Franklin v. Lynaugh, 487 U.S. 164, 179 (1988)).
Thus, the Constitution does not require the capital sentencer to find that the
aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt.
Smith, 140 F.3d at 1272 (rejecting claim based on failure to apply beyond a reasonable
doubt standard at sentencing); Williams, 52 F.3d at 1485 (“[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 v. Ryan, 2019 WL 160732, *28 (D. Ariz.
2019) (“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.”).
Ellison argues that Hurst v. Florida, 577 U.S. 92 (2016), establishes the
unconstitutionality of Arizona’s capital-sentencing scheme. (Doc. 21 at 185-86.) This
argument fails. First, Hurst was not clearly established federal law at the time the Arizona
Supreme Court reviewed Ellison’s death sentence. Underwood v. Royal, 894 F.3d 1154,
1186 (10th Cir. 2018) (“Hurst post-dates the [Oklahoma Court of Criminal Appeals’]
decision and thus cannot serve as clearly established federal law for purposes of our review
under AEDPA.”).

See also McKinney v. Arizona, 140 S. Ct. 702, 708 (2020)

(“Hurst do[es] not apply retroactively on collateral review.”); Ybarra v. Filson, 869 F.3d
1016, 1032-33 (9th Cir. 2017) (“Hurst does not apply retroactively”).
Second, even if Hurst were clearly established law for purposes of this claim,
Ellison would not be entitled to relief. “Hurst held only that Florida’s scheme, in which
the jury rendered an advisory sentence but the judge made the findings regarding
aggravating and mitigating factors, violated the Sixth Amendment. Hurst did not address
the process of weighing aggravating and mitigating circumstances and made no holding
- 190 -

1

regarding the determination that the mitigators do not outweigh the aggravators.” Speer v.

2

Thornell, 2023 WL 2503733, *81 (D. Ariz. 2023) (cleaned up).

3

F.

4

In Claim 35, Ellison alleges that Arizona’s capital-sentencing scheme violates the

5

Eighth and Fourteenth Amendments because it is overbroad, does not genuinely narrow

6

the murder cases eligible for the death penalty, and thereby fails to guide the sentencing

7

jury. (Doc. 21 at 188-91.) The Arizona Supreme Court’s denial of this claim was neither

8

contrary to nor an unreasonable application of clearly established federal law (and the claim

9

is, at any rate, meritless).

Claim 35

10

Again, the United States Supreme Court and the Ninth Circuit have upheld

11

Arizona’s capital-sentencing scheme against allegations that particular aggravating factors

12

do not adequately narrow the sentencer’s discretion. Jeffers, 497 U.S. at 774-77; Walton,

13

497 U.S. at 649-56; Woratzeck, 97 F.3d at 335. The Ninth Circuit has also explicitly

14

rejected the contention that Arizona’s capital-sentencing scheme is unconstitutional

15

because it “does not properly narrow the class of death penalty recipients.” Smith, 140

16

F.3d at 1272.

17

G.

Claim 36

18

In Claim 36, Ellison alleges that Arizona’s capital-sentencing scheme violates the

19

Eighth and Fourteenth Amendments because it does not set forth objective standards to

20

guide the jury in weighing the aggravating factors against the mitigating circumstances.

21

(Doc. 21 at 192.) The Arizona Supreme Court’s denial of this claim was neither contrary

22

to nor an unreasonable application of clearly established federal law (and the claim is, at

23

any rate, meritless).

24

The Supreme Court has held that in a capital case “the sentencer may be given

25

unbridled discretion in determining whether the death penalty should be imposed after it

26

has found that the defendant is a member of the class made eligible for that penalty.”

27

Tuilaepa, 512 U.S. at 979-80 (citation omitted). Additionally, the Supreme Court has

28

“never held that a specific method for balancing mitigating and aggravating factors in a

- 191 -

1

capital sentencing proceeding is constitutionally required.” Franklin, 487 U.S. at 179.

2

H.

Claim 37

3

In Claim 37, Ellison alleges that Arizona’s capital-sentencing scheme limits the

4

jury’s full consideration of mitigation evidence by requiring that mitigating circumstances

5

be proved by a preponderance of the evidence, in violation of the Eighth and Fourteenth

6

Amendments. (Doc. 21 at 193-94.) The Arizona Supreme Court’s denial of this claim was

7

neither contrary to nor an unreasonable application of clearly established federal law (and

8

the claim is, at any rate, meritless).

9

The Supreme Court has specifically rejected the argument that the Arizona capital-

10

sentencing scheme is unconstitutional because it imposes on defendants the burden of

11

establishing, by a preponderance of the evidence, the existence of mitigating circumstances

12

sufficiently substantial to call for leniency. Walton, 497 U.S. at 649-51. The Court has

13

subsequently reaffirmed that the reasoning in Walton still controls regarding burdens of

14

persuasion. Marsh, 548 U.S. at 173 (“a state death penalty statute may place the burden

15

on the defendant to prove that mitigating circumstances outweigh aggravating

16

circumstances”). Once the state has carried its burden of establishing death eligibility, “it

17

[does] not offend the Constitution to put the burden on [defendant] to prove any mitigating

18

factor by a preponderance of the evidence.” Mitchell, 502 F.3d at 993 (citations omitted).

19

I.

20

In Claim 38, Ellison alleges that Arizona’s capital-sentencing scheme violates the

21

Eighth and Fourteenth Amendments because it affords the prosecutor unlimited discretion

22

to seek the death penalty. (Doc. 21 at 194-96.) The Arizona Supreme Court’s denial of

23

this claim was neither contrary to nor an unreasonable application of clearly established

24

federal law.

Claim 38

25

The Supreme Court has held that prosecutors have wide discretion in deciding

26

whether to seek the death penalty. McCleskey v. Kemp, 481 U.S. 279, 296-97 (1987);

27

Gregg, 428 U.S. at 199. In Smith, the Ninth Circuit rejected the argument that Arizona’s

28

capital-sentencing scheme is constitutionally infirm because “the prosecutor can decide

- 192 -

1

whether to seek the death penalty.” 140 F.3d at 1272.

2

J.

Claim 39

3

In Claim 39, Ellison alleges that Arizona’s capital-sentencing scheme discriminates

4

against indigent male defendants whose victims are white. (Doc. 21 at 196-97.) The

5

Arizona Supreme Court’s denial of this claim was neither contrary to nor an unreasonable

6

application of clearly established federal law.

7

Clearly established federal law holds that “a defendant who alleges an equal

8

protection violation has the burden of proving ‘the existence of purposeful discrimination’”

9

and must demonstrate that such discrimination “had a discriminatory effect” on him.

10

McCleskey, 481 U.S. at 292 (quoting Whitus v. Georgia, 385 U.S. 545, 550 (1967)).

11

Therefore, to prevail on this claim, Ellison “must prove that the decisionmakers in his case

12

acted with discriminatory purpose.” Id.

13

Ellison does not attempt to meet that burden. He offers no evidence specific to his

14

case that would support an inference that his sex, race, economic status, or the race of his

15

victims played a part in his sentence. Richmond v. Lewis, 948 F.2d 1473, 1490-91 (1990),

16

vacated on other grounds, 986 F.2d 1583 (9th Cir. 1993) (statistical evidence is insufficient

17

to prove that decisionmakers in petitioner’s case acted with discriminatory purpose).

18

K.

19

In Claim 40, Ellison alleges that Arizona’s capital-sentencing scheme violates the

20

Fifth, Eighth, and Fourteenth Amendments because it precludes proportionality review of

21

capital sentences. (Doc. 21 at 197-99.) The Arizona Supreme Court’s denial of this claim

22

was neither contrary to nor an unreasonable application of clearly established federal law.

23

There is no federal constitutional right to proportionality review of a death sentence.

24

McCleskey, 481 U.S. at 306 (“[W]here the statutory procedures adequately channel the

25

sentencer’s discretion, such proportionality review is not constitutionally required.”). The

26

Ninth Circuit has explained that the “substantive right to be free from a disproportionate

27

sentence” is protected by the application of “adequately narrowed aggravating

28

circumstance[s].” Ceja, 97 F.3d at 1252.

Claim 40

- 193 -

1

L.

2

In Claim 41, Ellison cites various dissenting opinions in support of his allegation

3

that the death penalty violates his rights under the Eighth and Fourteenth Amendments

4

because it is irrationally and arbitrarily imposed, with no meaningful distinction between

5

those who receive sentences of death and those who are sentenced to life imprisonment.

6

(Doc. 21 at 199-200.) The Arizona Supreme Court’s denial of this claim was neither

7

contrary to nor an unreasonable application of clearly established federal law. See, e.g.,

8

Walton, 497 U.S. at 655-56; Smith, 140 F.3d at 1272. Ellison “simply fails to provide any

9

clearly established authority in support of his contention.” Roybal v. Davis, 148 F. Supp.

10

Claim 41

3d 958, 1111 (S.D. Cal. 2015).

11

M.

Claim 42

12

In Claim 42, Ellison alleges that the trial court violated the Ex Post Facto Clause by

13

sentencing him under Arizona’s post-Ring capital-sentencing statute. (Doc. 21 at 200-03.)

14

The Arizona Supreme Court’s denial of this claim was neither contrary to nor an

15

unreasonable application of clearly established federal law.

16

Ellison committed the murders in February 1999. He was convicted in January

17

2002. On June 24, 2002, the United States Supreme Court invalidated Arizona’s then-

18

applicable death penalty scheme, under which judges rather than juries found the facts

19

making a defendant eligible for the death penalty. Ring II, 536 U.S. at 609. On June 26,

20

2002, the trial court continued Ellison’s sentencing indefinitely. On August 1, 2002, the

21

Arizona legislature amended the state’s death penalty statute to comply with Ring II. A

22

jury sentenced Ellison to death in 2004. Ellison argues that because there was no death

23

penalty in effect between June 24 and August 1, 2002, “[t]he trial court’s application of the

24

newly enacted death-penalty statute to Ellison’s case violated the prohibition on the

25

retroactive application of substantive changes in the law.” (Doc. 21 at 201.)

26

In denying this claim, the Arizona Supreme Court cited its opinion in Ring III

27

holding that the Ex Post Facto Clause did not prohibit the resentencing of capital

28

defendants after Ring II because the new statute only enacted procedural changes and did

- 194 -

1

not place defendants in jeopardy of a greater punishment. Ellison, 140 P.3d at 929 (citing

2

Ring III, 65 P.3d at 926-28).

3

unreasonable application of clearly established federal law.

4

This determination was neither contrary to nor an

The Ex Post Facto Clause prohibits a state from “retroactively alter[ing] the

5

definitions of crimes or increas[ing] the punishment for criminal acts.”

6

Youngblood, 497 U.S. 37, 43 (1990). “[A]ny statute which punishes as a crime an act

7

previously committed, which was innocent when done; which makes more burdensome the

8

punishment for a crime, after its commission, or which deprives one charged with a crime

9

of any defense available according to law at the time when the act was committed, is

10

Collins v.

prohibited as ex post facto.” Dobbert, 432 U.S. at 292 (citation omitted).

11

In Dobbert, the petitioner’s “ex post facto claim [was] based on the contention that

12

at the time he murdered his children there was no death penalty ‘in effect’ in Florida. This

13

is so, he contends, because the earlier statute enacted by the legislature was, after the time

14

he acted, found by the Supreme Court of Florida to be invalid . . . . Therefore, argues

15

petitioner, there was no ‘valid’ death penalty in effect in Florida as of the date of his

16

actions.” Id. at 287. The Supreme Court rejected this “sophistic” “and “highly technical”

17

argument,” which “mocks the substance of the Ex Post Facto Clause,” and clarified that

18

the changes in Florida’s statute were “clearly procedural” and “simply altered the methods

19

employed in determining whether the death penalty was to be imposed; there was no

20

change in the quantum of punishment attached to the crime.” Id. at 293-94, 297. So, too,

21

here. Although Ring II invalidated the procedure by which the death penalty was imposed

22

in Arizona, it did not eliminate the death penalty as a possible sentence for first-degree

23

murder. See, e.g., Schriro v. Summerlin, 542 U.S. 348, 353-54 (2004) (“Ring’s holding is

24

properly classified as procedural.”); McGill, 16 F.4th at 703-04.

25

N.

26

In Claim 43, Ellison alleges that imposing the death penalty on a person diagnosed

27

with FASD violates the Eighth and Fourteenth Amendments. (Doc. 21 at 203-08.) The

28

PCR court denied this claim, finding it was supported by “no legal authority.” (PCR

Claim 43

- 195 -

1

Ruling, 7/16/12 at 6.)

2

application of clearly established federal law, nor was it factually unreasonable.

That decision was neither contrary to nor an unreasonable

3

Ellison argues that “the impairments associated with FASD mirror in critical ways

4

those suffered by intellectually disabled offenders.” (Doc. 21 at 205.) But as the PCR

5

court correctly noted, there is no authority—let alone clearly establish federal authority—

6

holding that individuals with FASD are exempt from capital punishment. In re Soliz, 938

7

F.3d 200, 203 (5th Cir. 2019) (inmate failed to show that FASD “is now medically equated

8

to intellectual disability as defined in Atkins”); United States v. Fell, 2016 WL 11550800,

9

*7 (D. Vt. 2016) (“Fell has not shown that all persons with FASD . . . have cognitive and

10

behavioral impairments that result in the same (or ‘equivalent’) diminishment in moral

11

culpability, ability to be deterred, and capacity to assist in their defense as individuals with

12

[intellectual disability]”); Garza, 2021 WL 5850883 at *105 (“There is no authority

13

holding that individuals with FASD are exempt from capital punishment.”). In addition,

14

Ellison has not shown that he is an intellectually disabled offender. As noted in earlier

15

portions of this order, Ellison’s IQ was measured at 100 when he was in high school and

16

was measured at 89 by Dr. Connor.

17

O.

18

In Claim 44, Ellison alleges that he will be denied a fair clemency process, in

19

Claim 44

violation of the Eighth and Fourteenth Amendments. (Doc. 21 at 208-10.)

20

This claim is unexhausted and is not, at any rate, cognizable on federal habeas

21

review. Habeas relief may only be granted on claims that a prisoner “is in custody in

22

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

23

Ellison’s challenge to state clemency procedures and proceedings does not represent an

24

attack on his detention and thus does not constitute a proper ground for relief. Franzen v.

25

Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam); Woratzeck, 118 F.3d at 653.

26

P.

Claim 46

27

In Claim 46, Ellison alleges that appellate counsel performed ineffectively by failing

28

to raise “several meritorious issues that had a reasonable probability of prevailing.” (Doc.

- 196 -

1

21 at 288-93.) Ellison raised these allegations during his PCR proceedings. (PCR Pet. at

2

36, 57, 69, 84.) The PCR court denied Ellison’s overarching claim of ineffective assistance

3

without explicitly addressing his claims regarding appellate counsel. (PCR Ruling, 7/16/12

4

at 5-6.) The PCR did state, however, that “[w]hether specifically referred to or not in this

5

minute entry ruling, this court has considered all of the claims presented by Ellison in his

6

Petition for Post-Conviction Relief” and determined that only two were colorable. (Id. at

7

6.) Because the state court denied these claims on the merits, this Court applies § 2254(d)

8

to Ellison’s allegations of ineffective assistance of appellate counsel. Richter, 562 U.S. at

9

98.

10

The Fourteenth Amendment guarantees a criminal defendant the right to effective

11

assistance of counsel on his first appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985). To

12

prevail on a claim of ineffective assistance of appellate counsel, a petitioner must show

13

that counsel’s appellate advocacy fell below an objective standard of reasonableness and a

14

reasonable probability that, but for counsel’s deficient performance, the petitioner would

15

have prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285-86 (2000). Thus, “[a]

16

failure to raise untenable issues on appeal does not fall below the Strickland standard.”

17

Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002). Nor does appellate counsel have a

18

constitutional duty to raise every nonfrivolous issue requested by a petitioner. Miller v.

19

Keeney, 882 F.2d 1428, 1434 n.10 (9th Cir. 1989) (citing Jones v. Barnes, 463 U.S. 745,

20

751-54 (1983)). See also Davila, 582 U.S. at 533 (“Declining to raise a claim on appeal

21

. . . is not deficient performance unless that claim was plainly stronger than those actually

22

presented to the appellate court.”).

23

Ellison first alleges that appellate counsel performed ineffectively “because he

24

failed to challenge the trial court’s refusal to authorize the defense to hire James Aiken,”

25

the prison-management expert. (Doc. 21 at 290.) As discussed, the PCR court found that

26

trial counsel’s failure to call a prison expert to opine that Ellison was not violent and posed

27

no danger to society was a matter “clearly related to decisions of trial strategy.” (PCR

28

Ruling. 7/16/12 at 5.) The PCR court further noted that “strong evidence to the contrary

- 197 -

1

existed in the Arizona Department of Corrections’ records.” (Id.) The PCR court did not

2

explicitly address appellate counsel’s performance or the trial court’s denial of funding for

3

Aiken.

4

Ellison has not shown that the PCR court’s denial of this claim was contrary to or

5

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

6

determination of the facts. A claim that the trial court erred in not approving funding for

7

Aiken was not “plainly stronger” than the other claims raised on appeal. Davila, 582 U.S.

8

at 533. Additionally, the trial court did not preclude Ellison from presenting other evidence

9

or argument during the penalty phase showing that he could be safely housed, and evidence

10

of good behavior in prison, even if it existed in Ellison’s case, is entitled to little mitigating

11

value. Thus, there was no reasonable probability of success on appeal if this claim had

12

been raised. Smith, 528 U.S. at 285-86.

13

Next, Ellison alleges that appellate counsel performed ineffectively by failing to

14

challenge two of the jury instructions: (1) the sentencing-phase “sufficiently substantial to

15

call for leniency” instruction; and (2) the guilt-phase premeditation instruction. (Doc. 21

16

at 290-92.) These claims are meritless.

17

During the sentencing phase, the jury was instructed that “[i]f your decision is that

18

the mitigating circumstance or circumstances are not sufficiently substantial to call for

19

leniency, then your verdict shall be that the defendant is sentenced to death.” (RT 2/13/04

20

at 19-20.) According to Ellison, this instruction, with its use of “shall,” “misleadingly

21

created a presumption of death” and therefore appellate counsel should have raised a claim

22

challenging it. (Doc. 21 at 291.) In support of this argument, Ellison cites State ex rel.

23

Thomas v. Granville, 123 P.3d 662 (Ariz. 2005), which held that “the defendant in a capital

24

case does not bear the burden to prove by a preponderance of the evidence that the

25

mitigating circumstances are sufficiently substantial to call for leniency.” Id. at 668.

26

Ellison is not entitled to habeas relief on this basis. The instruction in Ellison’s case

27

did not impose a burden on him to prove that the mitigating circumstances were sufficiently

28

substantial to warrant leniency. In addition, following its decision in Granville, the

- 198 -

1

Arizona Supreme Court’s “subsequent cases have held that the jury can properly be told

2

that if it concludes that there is no mitigation or the mitigation is not sufficiently substantial

3

to call for leniency, a death verdict should result.” State v. Martinez, 189 P.3d 348, 360

4

(Ariz. 2008). Therefore, the trial court’s use of “shall” was not inappropriate. See also

5

State v. Velazquez, 166 P.3d 91, 101 (Ariz. 2007) (rejecting claim that “a presumption of

6

death was created when the jury was instructed ‘[I]f you unanimously find that the

7

mitigation is not sufficiently substantial to call for leniency, you must return a verdict of

8

death.’”). Appellate counsel’s failure to raise this “untenable” challenge to the jury

9

instruction did not constitute ineffective assistance. Turner, 281 F.3d at 872; Smith, 528

10

U.S. at 285-86.

11

Turning to the guilt-phase premeditation instruction, the jury was instructed that:

12

Premeditation means that the defendant acts with either the intention or the
knowledge that he will kill another human being when such intention or
knowledge precedes the killing by any length of time to permit reflection. It
is this period of time to permit reflection that distinguishes first-degree
murder from intentional or knowing second-degree murder. An act is not
done with premeditation if it is the instant effect of a sudden quarrel or heat
of passion.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(RT 1/18/02 at 10.)
Ellison relies on State v. Thompson, 65 P.3d 420 (Ariz. 2003), for his argument that
this instruction was “incorrect and misleading.” (Doc. 21 at 291-92.) In Thompson, the
Arizona Supreme Court held that premeditation requires actual reflection and not the mere
passage of time. 65 P.3d at 428. The court therefore disapproved of the phrase “proof of
actual reflection is not required” and discouraged use of the phrase “as instantaneous as
successive thoughts of the mind,” both of which had previously been used in jury
instructions. Id. However, neither phrase was present in Ellison’s instruction. Indeed, in
Kiles, the Arizona Supreme Court found that “no error occurred” when the jury was
provided with a premeditation instruction indistinguishable from the one given in Ellison’s
case.

213 P.3d at 180 (“The superior court gave the following instruction about

premeditation: ‘Premeditation means the defendant acts with the knowledge that he will
- 199 -

1

kill another human being, when such intention or knowledge precedes the killing by a

2

length of time to permit reflection. An act is not done with premeditation if it is the instant

3

effect of a sudden quarrel or heat of passion.’”). Ellison’s appellate counsel did not perform

4

ineffectively by failing to raise the instruction challenge rejected in Kiles. Turner, 281

5

F.3d at 872; Smith, 528 U.S. at 285-86.

6

Finally, Ellison alleges that appellate counsel performed ineffectively by failing to

7

challenge the improper Miranda warnings given by Detective Watson, specifically

8

Watson’s statement: “You also have the right to refuse to answer any questions at any time

9

if you decide to do so. And like what that last one means is if I ask you something too

10

personal about your sex life, you don’t have to answer it just because I’m a cop.” (Doc. 21

11

at 292-93.) The PCR court rejected the claim without explanation. (PCR Ruling, 7/16/12

12

at 6.)

13

This claim was not “plainly stronger” than the other claims raised on appeal. Davila,

14

582 U.S. at 533. Appellate counsel raised a Miranda claim premised on Ellison’s alleged

15

invocation of the right to counsel. (Opening Br. at 18-25.) A separate Miranda challenge

16

premised on the “personal” questions verbiage was not tenable where Watson properly

17

recited the four Miranda warnings, including the right to remain silent, and where Ellison

18

was admittedly familiar with the warning and understood his rights. Turner, 281 F.3d at

19

872; Smith, 528 U.S. at 285-86.

20

Q.

Claim 48

21

In Claim 48,52 Ellison alleges that his execution would violate the Eighth and

22

Fourteenth Amendments because he “suffers from serious mental illness that includes

23

hallucinations paranoia, depression . . . along with neurological impairments indicative of

24

FASD.” (Doc. 21 at 293-305.) Ellison acknowledges he did not raise this claim in state

25

court but contends he can overcome the claim’s default because “not reviewing the claim

26

would lead to a fundamental miscarriage of justice.” (Id. at 293.) He also contends the

27
28

52

This order skips from Claim 46 to Claim 48 because Ellison withdrew Claim 47.
(Doc. 21 at 293.) Ellison also withdrew Claims 50, 51, and 53. (Id. at 308, 321.)
- 200 -

1
2

default is excused by the ineffective assistance of PCR counsel. (Id. at 293-94.)
Regardless of the claim’s procedural status, it is without merit.

In Ford v.

3

Wainwright, 477 U.S. 399 (1986), the Supreme Court held that it is a violation of the Eighth

4

Amendment to execute someone who cannot comprehend that his execution is based on a

5

conviction for murder. Id. at 409-10. But Ellison does not contend that he is incompetent

6

to be executed under Ford, only that he has serious mental illness. See, e.g., ShisInday v.

7

Quarterman, 511 F.3d 514, 521 (5th Cir. 2007) (petitioner’s execution not prohibited

8

where he contended he was mentally ill, not insane).

9

Ellison also argues that the reasoning in Ford, along with Atkins v. Virginia, 536

10

U.S. 304 (2002), which barred the execution of the intellectually disabled, and Roper v.

11

Simmons, 543 U.S. 551 (2005), which placed a categorical ban on the execution of persons

12

under the age of 18, should be extended to defendants who suffer from mental illness or

13

neurological impairment. (Doc. 21 at 294-95.) But Ellison offers no authoritative support

14

for such an extension. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1370 (11th Cir. 2009)

15

(“[S]ans a decision from the Supreme Court barring the execution of mentally ill prisoners,

16

we reject Carroll’s claim that he is exempt from execution because he is mentally ill.”);

17

Rangel v. Broomfield, 2023 WL 5417888, *97 (E.D. Cal. 2023) (“[N]either the Supreme

18

Court nor this circuit has extended the Atkins/Roper protections to the mentally ill whose

19

illness does not reach that of incompetency or insanity.”); Doerr v. Ryan, 2010 WL 582198,

20

*3 (D. Ariz. 2010) (“[T]he authorities that have considered the scope of Atkins have all

21

rejected the proposition that the Eighth Amendment prohibits execution of the mentally

22

ill.”). “Although petitioner’s references to international law, public opinion data, and

23

various other reports and studies are instructive, this Court must follow Supreme Court

24

authority.” Garza, 2021 WL 5850883 at *106 (citation omitted).

25

Finally, and at any rate, “the determination of whether an inmate is competent to be

26

executed cannot be made before the execution is imminent, i.e., before the warrant of

27

execution is issued by the state.” Martinez-Villareal v. Stewart, 118 F.3d 628, 630 (9th

28

Cir. 1997).

- 201 -

1

R.

2

In Claim 49, Ellison alleges that executing him after he has spent more than 14 years

3

on death row would violate the Eighth and Fourteenth Amendments. (Doc. 21 at 305-08.)

4

This unexhausted claim is meritless. “The Supreme Court has never held that

5

execution after a long tenure on death row is cruel and unusual punishment.” Allen v.

6

Ornoski, 435 F.3d 946, 958 (9th Cir. 2006); 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.”). The Ninth Circuit has also held that prolonged

11

incarceration under a sentence of death does not violate the Eighth Amendment. McKenzie

12

v. Day, 57 F.3d 1493, 1493-94 (9th Cir. 1995) (en banc).

Claim 49

13

S.

14

In Claim 56, Ellison alleges that he was deprived of a reliable capital-sentencing

15

proceeding because “a wealth of mitigation evidence was never discovered, presented, or

16

considered at either Ellison’s trial or during the Arizona Supreme Court’s independent

17

review.” (Doc. 21 at 325-26.) In Claim 57, Ellison alleges that the trial court’s violations

18

of state law in its evidentiary rulings rendered his trial “so arbitrary and fundamentally

19

unfair as to violate the Fifth, Eighth, and Fourteenth Amendments.” (Id. at 327-28.) In

20

Claim 58, Ellison alleges that his convictions and sentences must be vacated due to the

21

cumulative prejudicial effect of the errors in this case. (Id. at 328-30.)

Claims 56, 57, and 58

22

Ellison concedes he did not raise these claims in state court. He argues that the

23

default of Claims 56 and 57 is excused by the ineffective assistance of PCR counsel. (Id.

24

at 325, 327.) But as noted throughout this order, the ineffective assistance of PCR counsel

25

can only excuse the default of claims of ineffective assistance of trial counsel. Claims 56

26

and 57 remain defaulted and barred from federal review.

27

Ellison argues that “[b]ecause of the bifurcated nature of state proceedings,” he

28

could not have raised Claim 58 in state court. (Doc. 21 at 328.) Whatever its procedural

- 202 -

1

status, Claim 58 is meritless. As noted above, the Supreme Court has not specifically

2

recognized the doctrine of cumulative error as an independent basis for habeas relief and

3

Ellison has not identified two or more constitutional errors that could be accumulated.

4

IV.

Evidentiary Development

5

Ellison requests evidentiary development with respect to Claims 1, 2, 25, 45(C),

6

45(D), 48, 52, 53, and 55 and “to prove his Martinez claim.” (Doc. 41.) Ellison seeks

7

discovery, an evidentiary hearing, and expansion of the record under Rules 6, 7, and 8 of

8

the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. (Id.)

9

A.

Legal Standards

10

“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to

11

discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997).

12

Rule 6 of the Rules Governing Section 2254 Cases provides that “[a] judge may, for good

13

cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure

14

and may limit the extent of discovery.” Id. “Whether a petitioner has established ‘good

15

cause’ for discovery requires a habeas court to determine the essential elements of the

16

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

17

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

18

demonstrate that he is entitled to relief.” Boggs v. Shinn, 2018 WL 1794917, *3 (D. Ariz.

19

2018) (cleaned up).

20

Rule 8 of the Rules Governing Section 2254 Cases authorizes evidentiary hearings,

21

but an evidentiary hearing is not required if the issues can be resolved by reference to the

22

state-court record. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“It is axiomatic

23

that when issues can be resolved with reference to the state court record, an evidentiary

24

hearing becomes nothing more than a futile exercise.”); Schriro v. Landrigan, 550 U.S.

25

465, 474 (2007) (“[I]f the record refutes the applicant’s factual allegations or otherwise

26

precludes habeas relief, a district court is not required to hold an evidentiary hearing.”).

27

Likewise, “an evidentiary hearing is not required if the claim presents a purely legal

28

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1
2

question and there are no disputed facts.” Beardslee v. Woodford, 358 F.3d 560, 585 (9th
Cir. 2004). See also Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992).

3
4
5
6

Finally, under Rule 7 of the Rules Governing Section 2254 Cases, a federal habeas
court is authorized to expand the record to include additional material relevant to the
petition. The purpose of expansion of the record under Rule 7 “is to enable the judge to
dispose of some habeas petitions not dismissed on the pleadings, without the time and

7

expense required for an evidentiary hearing.” Boggs, 2018 WL 1794917 at *4 (citation

8

omitted). However, § 2254(e)(2) limits a petitioner’s ability to present new evidence

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10
11

through a Rule 7 motion to the same extent it limits the availability of an evidentiary
hearing. Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005) (“[Petitioner]
must comply with § 2254(e)(2) in order to expand the record under Rule 7.”).

12

B.

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14
15
16
17
18

Claims Adjudicated On The Merits In State Court

Claims 1, 2, and 25 were raised and denied on the merits in state court. Additionally,
most of the components of Claims 45(C) and 45(D) were raised and denied on the merits
in state court.53 This Court’s “review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at
181; see also Gulbrandson, 738 F.3d at 993 & n.6 (explaining that “for claims that were
adjudicated on the merits in state court, petitioners can rely only on the record before the

19

state court in order to satisfy the requirements of § 2254(d)” and noting that this

20

“evidentiary limitation” also applies to claims under § 2254(d)(2)).

21

Ellison contends that his claims “satisfy § 2254(d) based on the state-court record”

22

and that evidentiary development is necessary for the Court to “conduct de novo review.”

23
24
25
26
27
28

53

As discussed in earlier portions of this order, Claim 45(D) encompasses six guiltphase subclaims of ineffective assistance of counsel and Claim 45(C) encompasses 10
sentencing-phase subclaims of ineffective assistance of counsel. As further discussed in
earlier portions of this order, Ellison did not raise, in state court, at least one and perhaps
two of his guilt-phase subclaims (i..e., failing to obtain and present evidence that Watson’s
and Auld’s testimony about his interrogation was false and cumulative error) and did not
raise, in state court, two of his sentencing-phase subclaims (i.e., failing to object to the
prosecutor’s statements about Finch and failing to raise parole ineligibility).
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(Doc. 41 at 25.) But as discussed in earlier portions of this order, the state-court denials of

2

Claims 1, 2, 25, and the exhausted portions of 45(C) and 45(D) were not unreasonable

3

under 28 U.S.C. § 2254(d). Thus, the Court is precluded from considering new evidence

4

in support of those claims. Stokley v. Ryan, 659 F.3d 802, 809 (9th Cir. 2011). Under

5

these circumstances, there is no reason to hold an evidentiary hearing or expand the record

6

and no good cause exists to authorize discovery. See also Sully v. Ayers, 725 F.3d 1057,

7

1075 (9th Cir. 2013) (“[A]n evidentiary hearing is pointless once the district court has

8

determined that § 2254(d) precludes habeas relief.”); Boggs, 2018 WL 1794917 at *6

9

(“Boggs seeks discovery and expansion of the record in support of Claim 6 . . . [but the]

10

Arizona Supreme Court denied this claim on direct appeal. Under Pinholster, Boggs is not

11

entitled to evidentiary development.”) (citations omitted).

12

C.

13

The remaining claims for which Ellison seeks evidentiary development, Claims 48,

14

52, 53, and 55 and portions of Claims 45(C) and 45(D), were not presented in state court.

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Ellison is not entitled to an evidentiary hearing, expansion of the record, or

16

discovery with respect to any of those claims. Claim 48, in which Ellison alleges that his

17

execution would be unconstitutional because he is mentally ill, is meritless for the reasons

18

previously identified—Ellison does not allege he is incompetent and the ultimate

19

determination of competence cannot, at any rate, occur until an execution warrant has been

20

issued. A habeas petitioner is not entitled to pursue evidentiary development in support of

21

a claim that is meritless for reasons unrelated to the evidence the petitioner hopes to

22

develop. See, e.g., Schriro, 550 U.S. at 474; Totten, 137 F.3d at 1176; Beardslee, 358 F.3d

23

at 585; Hendricks, 974 F.2d at 1103. See also Boggs, 2018 WL 1794917 at *5 (denying

24

request for evidentiary development as to similar unexhausted claim).

Claims Not Adjudicated On The Merits In State Court

25

Next, Claims 52, 53, and 55, alleging various acts of prosecutorial misconduct and

26

Napue violations, are procedurally defaulted and, in the absence of cause and prejudice,

27

barred from federal review. Ellison argues, and seeks to present evidence to demonstrate,

28

that the ineffective assistance of PCR counsel provides cause and prejudice for the claims’

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default. (Doc. 41 at 46.) But as noted elsewhere, Martinez applies only to defaulted claims

2

of ineffective assistance of trial counsel. Martinez, 926 F.3d at 1225; Pizzuto, 783 F.3d at

3

1177. Claims 52, 53, and 55 do not fall within that exception because, as Respondents

4

correctly note, “Claims 52, 53, and 55 assert[] trial court error.” (Doc. 50 at 40.) Thus,

5

further evidentiary development is unwarranted.

6

Ellison also contends that the State’s suppression of evidence provides cause for the

7

procedural default of Claims 52, 53, and 55. (Doc. 41 at 40.) But as discussed earlier, that

8

argument fails with respect to any claims predicated on the audio cassette or on Vivian

9

Brown’s testimony. Meanwhile, even assuming suppression might provide cause for the

10

procedural default of any Napue, Brady, or other prosecutorial misconduct claim premised

11

on Friesner’s notes (or, for that matter, on the audio cassette), Ellison cannot demonstrate

12

prejudice for the reasons stated earlier. Further evidentiary development is unwarranted

13

under these circumstances. See, e.g., Schriro, 550 U.S. at 474; Totten, 137 F.3d at 1176;

14

Beardslee, 358 F.3d at 585; Hendricks, 974 F.2d at 1103.

15

Next, the portions of Claim 45(D) not adjudicated on the merits in state court are

16

(1) Ellison’s claim that he received ineffective assistance during the guilt phase due to

17

counsel’s failure to obtain and present evidence that Watson’s and Auld’s testimony about

18

his interrogation was false and, potentially, (2) Ellison’s claim of cumulative guilt-phase

19

ineffective assistance. But the former is meritless for reasons discussed elsewhere, and

20

thus further evidentiary development is unwarranted. Likewise, it would be pointless to

21

allow further development regarding the cumulative error claim where no error has been

22

shown.

23

Finally, the portions of Claim 45(C) not adjudicated on the merits in state court are

24

Ellison’s claims that he received ineffective assistance during the sentencing phase due to

25

counsel’s failure to (1) object to the prosecutor’s statements about Finch and (2) raise

26

parole ineligibility. But once again, those claims are meritless for reasons that further

27

evidentiary development would not remedy.

28

…

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2
3
4
5
6
7
8
9

V.

Certificate Of Appealability
Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, a habeas

petitioner cannot take an appeal unless a certificate of appealability (“COA”) has been
issued by an appropriate judicial officer. Rule 11(a) of the Rules Governing Section 2254
Cases provides that the district judge must either issue or deny a COA when it enters a final
order adverse to the applicant. If a COA is issued, the court must state the specific issue
or issues that satisfy 28 U.S.C. § 2253(c)(2).
Under § 2253(c)(2), a COA may issue only when the petitioner “has made a
substantial showing of the denial of a constitutional right.”

This showing can be

10

established by demonstrating that “reasonable jurists could debate whether (or, for that

11

matter, agree that) the petition should have been resolved in a different manner” or that the

12

issues were otherwise “adequate to deserve encouragement to proceed further.” Slack v.

13
14
15
16

McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
(1983)). For procedural rulings, a COA will issue only if “jurists of reason would find it
debatable whether [1] the petition states a valid claim of the denial of a constitutional right,
and . . . [2] the district court was correct in its procedural ruling.” Id.

17

The Ninth Circuit has emphasized that the standard for granting a COA “amounts

18

to a modest standard” and that courts “must be careful to avoid conflating the standard for

19
20
21
22
23

gaining permission to appeal with the standard for obtaining a writ of habeas corpus.” Silva
v. Woodford, 279 F.3d 825, 832-33 (9th Cir. 2002) (cleaned up). In light of those
principles, the Court grants a COA as to Claim 45(C)(1) (ineffective assistance during
sentencing phase regarding mitigation) and Claim 45(C)(2) (ineffective assistance during
sentencing phase regarding FASD)

24

…

25

…

26

…

27

…

28

…
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1

Accordingly,

2

IT IS ORDERED that:

3

1.

4

Ellison’s amended habeas (Doc. 21) is denied. The Clerk of Court shall enter

judgment accordingly and terminate this action.

5

2.

Ellison’s request for evidentiary development (Doc. 41) is denied.

6

3.

A certificate of appealability is granted with respect to Claims 45(C)(1) and

7

45(C)(2).

8

4.

9
10

The Clerk of Court shall forward a courtesy copy of this order to the Clerk

of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329.
Dated this 5th day of March, 2024.

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