Medrano, et al v. Stewart, et al

Filing 176

ORDER re 30 Amended Petition for Writ of Habeas Corpus (State/2254) IT IS HEREBY ORDERED that Claims 1, 2, 4, 14(A)(1), 14(A)(2), 14(A)(5), and14(B)(2) of Petitioners First Amended Petition for Writ of Habeas Corpus (Doc. 30) are denied with pred judice.It is ordered that any party seeking reconsideration of this order pursuant to LRCiv 7.2(g) shall do so no later than fifteen (15) days after the filing of this order. The Petitioners sentencing-related claims remain stayed pending further ord er of the Court.The Clerk of Court substitute Charles L. Ryan, Director of the Arizona Department of Corrections, for Dora Schriro as a party to this matter,pursuant to Fed. R. Civ. P. 25(d)(1). IT IS FURTHER ORDERED that the Clerk of Court send a courtesy copy of this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007- 3329. Signed by Judge Cindy K Jorgenson on 03/01/12. (LMF)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Angel Mayora Medrano, Petitioner, 11 12 vs. 13 14 Charles L. Ryan, et al., Respondents. 15 16 17 18 19 20 21 22 23 24 25 ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-99-603-TUC-CKJ DEATH PENALTY CASE MEMORANDUM OF DECISION AND ORDER RE: CONVICTIONRELATED CLAIMS Petitioner Angel Mayora Medrano (“Petitioner”), a state prisoner under sentence of death, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is imprisoned and sentenced in violation of the United States Constitution. Petitioner’s sentencing-related claims have been stayed since 2003, pending completion of state post-conviction proceedings based on alleged mental retardation and ineligibility for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). (Doc. 80.)1 This Order addresses Petitioner’s remaining conviction-related claims and corresponding requests for evidentiary development. For the reasons set forth herein, the Court concludes that Petitioner is not entitled to habeas relief or to evidentiary development on any of these claims. 26 27 28 1 “Doc.” refers to the documents in this Court’s file. 1 2 3 4 5 6 FACTUAL AND PROCEDURAL BACKGROUND Petitioner was convicted and sentenced to death for the murder of Patricia Pedrin. The Arizona Supreme Court summarized the facts as follows: On the morning of February 1, 1987, Tucson police were called to investigate the death of a woman whose body was discovered at home by her five-year-old daughter, two-year-old son, and a friend’s six-year-old daughter. An autopsy established that she died of multiple stab wounds and was approximately eight weeks pregnant. It further revealed evidence of recent sexual activity. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 At the time of the victim’s death, her husband was in prison, but he received periodic passes to visit his family. He was also allowed to make phone calls from prison. Several days before February 1, he called defendant (appellant), with whom he was acquainted, and asked him to put new tires on his wife’s car. Defendant replaced the tires on January 31. At the time, defendant was serving a federal sentence at a halfway house for substance abusers, but he was permitted to leave the premises to work, and had weekend passes allowing him to stay elsewhere overnight. Several days after the body was discovered, defendant contacted the investigating detective at the request of the victim’s husband and reported that he had recently put tires on her car. Subsequently, the police obtained a court order to take blood and saliva samples from defendant. They also questioned him about the clothing he wore on the night of January 31. Defendant gave them some shirts, trousers, and a pair of boots. One shirt was missing a button similar to that discovered in the victim’s home. When a warrant was obtained for defendant’s arrest, officers were unable to find him. He was ultimately located in Juarez, Chihuahua, Mexico. On November 24, 1987, Chihuahua Judicial State Police officers, accompanied by an officer of the El Paso, Texas police department, arrested him. Thereafter, defendant told the Juarez deputy police chief that if he was not injured or beaten, he would tell the truth. He then confessed to forcibly raping the victim and killing her after she threatened to tell her husband about the rape. The El Paso officer was present during this confession. Defendant again confessed to the crimes in a written statement to the Mexican authorities. Later that day, a Pima County Sheriff’s detective took custody of defendant at the international border in El Paso. Defendant confessed twice to the detective, once upon being taken into custody, and a second time following the reading of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After they returned to Tucson, he confessed again, and this statement was recorded. 24 25 26 Defendant was charged with first degree murder, kidnapping, sexual assault, and burglary. He was convicted following a jury trial, and was sentenced to death for murder and to 21 years’ imprisonment on each of the kidnapping, sexual assault, and burglary convictions. The prison sentences were ordered to run concurrently, but consecutively to the death sentence. 27 State v. Medrano, 173 Ariz. 393, 394-95, 844 P.2d 560, 561-62 (1992) (Medrano I). 28 -2- 1 While Petitioner’s direct appeal was pending, he filed a post-conviction relief (“PCR”) 2 petition, which was denied. Review of that denial was consolidated with Petitioner’s direct 3 appeal. On appellate review, the Arizona Supreme Court affirmed Petitioner’s convictions, 4 but invalidated one of the two aggravating circumstances found by the trial judge and 5 remanded for resentencing. Medrano I, 173 Ariz. at 399, 844 P.2d at 566. Petitioner was 6 resentenced to death, and the Arizona Supreme Court affirmed on appeal. State v. Medrano, 7 185 Ariz. 192, 914 P.2d 225 (1996) (Medrano II). Petitioner filed a second PCR petition, 8 which was denied. The Arizona Supreme Court summarily denied a petition for review. 9 Petitioner then commenced these habeas proceedings. 10 In 2000, Petitioner filed an amended habeas petition raising nineteen claims. (Doc. 11 30.) Pursuant to the Court’s then general procedures governing resolution of capital cases, 12 the parties first briefed the procedural status of each claim. In 2002, following the Supreme 13 Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002) (requiring jury determination of 14 factors rendering a defendant capital-eligible), this Court stayed Petitioner’s sentencing- 15 related claims while Petitioner sought retroactive application of Ring in state PCR 16 proceedings. That stay was extended in 2003 to allow Petitioner to also seek state PCR relief 17 based on Atkins v. Virginia. (Doc. 80.) Although more than eight years have passed, the 18 state superior court has yet to hold an evidentiary hearing on Petitioner’s Atkins claim. 19 According to the most recent status report filed by Petitioner, that hearing is expected to take 20 place in June 2012. (Doc. 175.) 21 On September 27, 2007, the Court considered the procedural status of Petitioner’s 22 conviction-related claims and determined that Claims 1, 2, 4, 14(A)(1)-(A)(5), and 14(B)(2) 23 were properly exhausted and entitled to merits review.2 (Doc. 119.) The parties have briefed 24 the merits and Petitioner has requested evidentiary development of these claims. (Docs. 131, 25 26 27 2 Petitioner subsequently withdrew Claims 14(A)(3) and 14(A)(4). (See Doc. 131 at 49.) 28 -3- 1 139, 145.) STANDARD FOR HABEAS RELIEF 2 3 Petitioner filed his petition after the effective date of the Antiterrorism and Effective 4 Death Penalty Act of 1996 (“AEDPA”). The AEDPA established a “substantially higher 5 threshold for habeas relief” with the “acknowledged purpose of ‘reducing delays in the 6 execution of state and federal criminal sentences.’” Schriro v. Landrigan, 550 U.S. 465, 473, 7 475 (2007) (quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003)). The AEDPA’s 8 “‘highly deferential standard for evaluating state-court rulings’ . . . demands that state-court 9 decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) 10 (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). Under the AEDPA, a petitioner is not entitled to habeas relief on any claim 11 12 “adjudicated on the merits” by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 13 14 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 15 16 28 U.S.C. § 2254(d). In conducting review under § 2254(d)(1), this Court “is limited to the 17 record that was before the state court that adjudicated the claim on the merits.” Cullen v. 18 Pinholster, 131 S. Ct. 1388, 1398-99 (2011). 19 DISCUSSION 20 I. Claims 1 and 2 21 In Claim 1, Petitioner alleges that his confession in Juarez, Mexico was coerced, and 22 therefore involuntary, and its admission at trial violated his right to due process under the 23 Fourteenth Amendment. (Doc. 30 at 7-8.) Petitioner further argues that this coerced 24 confession tainted his subsequent statements. (Id.) In Claim 2, Petitioner alleges that his 25 statements to American authorities were obtained in violation of Miranda because he was 26 not notified of his rights when initially transferred to American custody and because during 27 formal questioning he was incapable of waiving his rights due to mental retardation. (Id. at 28 -4- 1 9-10.)3 2 A. Background 3 Prior to trial, Petitioner moved to suppress his statements to Mexican law enforcement 4 officials. (ROA at 63, 158.)4 The trial court held a pretrial voluntariness hearing. (RT 5 6/9/88; RT 6/21/88.) At the start of trial, the court sua sponte held another hearing to 6 determine whether Petitioner’s statements to American authorities were involuntary or 7 provided in violation of Miranda. (RT 7/12/88.) 8 Statements to Mexican Authorities 9 Jose Rubalcava, Deputy Chief of the Judicial Police for the City of Juarez, Mexico, 10 testified that he received a request from American officials to locate and arrest Petitioner who 11 was thought to be residing in Juarez and who had been indicted for a murder occurring in 12 Tucson. (RT 6/9/88 at 5-6.) Rubalcava located Petitioner and sent his officers to arrest him. 13 (Id. at 6.) Rubalcava testified that his officers arrested Petitioner on November 24, 1987, and 14 brought him to the Juarez police station. (Id. at 6-7.) Rubalcava questioned Petitioner in his 15 office. (Id. at 7-8.) Detective David Rojas, of the El Paso Police Department, who was the 16 liaison police officer between the El Paso and Juarez police departments, and several of 17 Rubalcava’s officers, witnessed the questioning. (Id. at 6-8, 25.) 18 19 3 20 21 22 23 24 25 26 27 28 In his merits brief Petitioner also asserts that the Mexican police officials should have provided Miranda warnings prior to questioning him. (Doc. 131 at 10-11.) Petitioner did not raise this claim in his amended petition or exhaust it in state court. (See Doc. 30 at 9-10.) Rule 2(c) of the Rules Governing Section 2254 Cases requires that all grounds for relief be specified in the petition. See Rule 2(c), 28 U.S.C. foll. § 2254; Mayle v. Felix, 545 U.S. 644, 655-56 (2005). Because Petitioner did not present this claim in his petition, the Court will not now consider it. 4 “ROA” refers to the four-volume record on appeal from Petitioner’s appeal to the Arizona Supreme Court following resentencing (Case No. CR-94-0207-AP). “ROAPCR” refers to the thirteen-volume record of sequentially-numbered pleadings and minute entries from Petitioner’s PCR proceedings. (Case No. CR-99-0247-PC). “RT” refers to the reporter’s trial transcripts. The original transcripts and certified copies of the trial, appeal, and PCR records were provided to this Court by the Arizona Supreme Court. (Doc. 38.) -5- 1 Rubalcava testifed that when he showed Petitioner the documents requesting his arrest 2 for murder in Tucson, Petitioner confessed that he killed the victim. (Id. at 11.) During 3 questioning, Petitioner pleaded not to be beaten or hurt and promised Rubalcava that he 4 would tell them what happened. (Id.) Rubalcava denied that Petitioner was abused in any 5 way, threatened, or promised anything in exchange for his confession. (Id. at 8, 12.) After 6 questioning, Rubalcava placed Petitioner in a holding cell until the Secretary for the Juarez 7 Police Department could document his confession. (Id. at 13-14.) Rubalcava had the 8 Secretary document the confession, and then both Petitioner and Rubalcava signed it. (Id. at 9 14-15, 17.) Rubalcava testified that, while documenting the confession, the Secretary 10 explained to Petitioner that he had the right to have a trusted person present with him, 11 including an attorney, if he so chose. (Id. at 14-15.) Rubalcava testified that he was not sure 12 whether Petitioner was in custody in Juarez for one, two, or three days before being turned 13 over to United States authorities. (Id. at 21.) He further testified that he directed officers to 14 provide Petitioner with food and water. (Id.) 15 El Paso Detective Rojas testified that he was present when Petitioner was arrested and 16 questioned in Juarez. (Id. at 27-28.) While at the Juarez jail, he never observed Petitioner 17 being beaten, threatened, or promised anything in return for his statement. (Id.) Rojas did 18 not see any bruises or other indication that Petitioner had been physically abused. (Id. at 29- 19 30.) However, Rojas did acknowledge Petitioner telling him that he did not want to be 20 beaten by the Juarez police. (Id. at 29-31.) Rojas also testified that Petitioner might have 21 been provided with food based on orders from Rubalcava. (Id. at 40.) 22 Petitioner testified that while being questioned by Rubalcava, Juarez Police Officer 23 Francisco Garza kicked his foot and ankle numerous times and punched him in the ribs. (Id. 24 at 44, 46, 48.) Petitioner maintained that he confessed to Rubalcava because they were 25 beating him. (Id.) Petitioner further claimed that he was threatened with torture and then 26 tortured by Officer Garza for two days. (Id. at 51, 57.) Finally, Petitioner testified that the 27 Mexican authorities did not feed him or give him any water while jailed. (Id. at 60.) 28 -6- 1 Officer Garza testified in rebuttal that while Petitioner was in police custody in Juarez, 2 neither he nor anyone else threatened, abused, or hurt Petitioner in any manner. (RT 6/21/88 3 at 12-13.) Walter Whaley, a Lieutenant at the Tucson Federal Correctional Facility, also 4 testified in rebuttal. He said that on November 25, the day after Petitioner was delivered to 5 American authorities, the Tucson police transported Petitioner to the federal facility for 6 commitment. (Id. at 4-5.) Whaley testified that Petitioner was strip-searched before being 7 admitted and that there were no observable marks or bruises on his body. (Id. at 5-7.) 8 Further, Petitioner did not complain or mention any bruises, kicking, scratching, or anything 9 of that sort. (Id. at 8.) 10 During closing argument, defense counsel asserted that the Mexican police officials 11 had a reputation for brutality toward prisoners and in support submitted newspaper articles 12 in which American citizens had been arrested and brutalized by the Juarez police. (Id. at 19- 13 20.) At conclusion of the hearing, the trial court denied the suppression motion, finding the 14 testimony of the police officers more credible and concluding that Petitioner’s statements to 15 the Juarez police officers were voluntary and not the result of duress, torture, or threats of 16 torture. (Id. at 20-22.) 17 Statements to American Authorities 18 After making his statement to Mexican police on November 24, Petitioner confessed 19 a second and third time that same day to American officials. He confessed again early the 20 next day to a Tucson police officer. 21 At the El Paso Immigration Office, Petitioner was turned over to Detective John Patze 22 of the Pima County Sheriff’s Office and Lois Engstrand of the United States Marshal’s 23 Service. (RT 7/12/88 at 9.) Patze informed Petitioner that he was under arrest pursuant to 24 a federal warrant and that he was going to be charged with first-degree murder after he was 25 returned to Tucson. Petitioner then stated,“I did it, I done it, not a day goes by that I don’t 26 think about it.” (Id. at 10.) Patze advised Petitioner that they would discuss the matter fully 27 when they later arrived at the U.S. Marshal’s Office in El Paso. (Id. at 10.) 28 -7- 1 At the Marshal’s Office, Patze read Petitioner his Miranda rights from a departmental 2 card, and Petitioner responded that he understood his rights and agreed to speak with the 3 officers. (Id. at 11-12.) 4 understanding the questions and responded appropriately to each. (Id. at 13.) Detective 5 Patze testified that during the interrogation he did not make Petitioner any promises and did 6 not threaten or physically abuse him to get him to answer questions. (Id. at 12-13.) Petitioner never communicated any trouble or difficulty 7 During the interrogation Petitioner acknowledged going over to the victim’s house late 8 at night and said she had let him in and they talked for a little while. (Id. at 180-81.) He was 9 vague about whether he had sex with the victim, but said at one point he looked down and 10 saw that his hands were covered with blood and that he had a knife in his hand. (Id. at 181- 11 82.) Petitioner did not provide any further details of the murder but did say he left her laying 12 on her back on the bed. (Id. 182-84.) He also said, “[I]n my conscience, I know I killed her, 13 but in my heart, I didn’t.” (Id. at 185.) At some point, Petitioner indicated to Patze that he 14 would be willing to speak with Tucson Police Sergeant Sexto Molina, who knew Petitioner 15 and other members of Petitioner’s family. (Id. at 13, 17-18.) 16 In the early morning hours of November 25, shortly after Petitioner’s return to 17 Tucson, Sergeant Molina interrogated Petitioner. Patze and Engstrand had previously 18 informed Molina that Petitioner had been advised of his Miranda rights and had agreed to 19 speak with Molina regarding the murder. (RT 7/13/88 at 11-12.) Sergeant Molina taped the 20 conversation but did not re-advise Petitioner of his Miranda rights. (RT 7/12/88 at 16, 20.) 21 During the interrogation, Petitioner did not invoke his right to an attorney or indicate that he 22 was having difficulty understanding the questions. (Id. at 18.) Petitioner confessed to 23 Molina that he had sex with the victim before he stabbed her and that he didn’t know she was 24 pregnant. (Doc. 172-1 at 11.) Sergeant Molina testified that during the interrogation, he 25 made no promises and never threatened or physically abused Petitioner. (RT 7/12/88 at 18.) 26 Following the completion of testimony, the trial court concluded that Petitioner’s 27 initial statement to Detective Patze was voluntary and not the result of police interrogation. 28 -8- 1 (RT 7/12/88 at 23.) The court further concluded that Petitioner’s statements at the Marshal’s 2 office and to Sergeant Molina were made after Petitioner was read his Miranda rights, 3 understood those rights, and voluntarily agreed to speak with the officers. (Id.) The Court 4 further found that the statements were not made as a result of any threats, coercion, or 5 promises. (Id.) 6 B. 7 In evaluating the voluntariness of a confession, “the test is whether, considering the 8 totality of the circumstances, the government obtained the statement by physical or 9 psychological coercion or by improper inducement so that the suspect’s will was overborne.” 10 Derrick v. Peterson, 924 F.2d 813, 817 (9th Cir. 1990) (citing Haynes v. Washington, 373 11 U.S. 503, 513-14 (1963)). 12 deprivation of food or sleep, physical threats of harm, and psychological persuasion, is a 13 necessary predicate to a finding that a confession is not voluntary within the meaning of the 14 Due Process Clause. Colorado v. Connelly, 479 U.S. 157, 167 (1986). Therefore, personal 15 characteristics of the suspect, such as age and mental capacity, are “constitutionally irrelevant 16 absent proof of coercion.” Derrick, 924 F.2d at 818. Voluntariness Coercive police activity, including lengthy questioning, 17 Statement to Mexican Authorities 18 On appeal, the Arizona Supreme Court affirmed the trial court’s determination that 19 20 21 22 23 24 Petitioner’s confession to Mexican authorities was voluntary: Prior to trial, defendant moved to suppress the statements he made in Mexico. At a hearing in the trial court, the deputy chief of police from Juarez, a Mexican police officer, the El Paso police officer, and defendant all testified. Defendant claimed he gave his statements to the Mexican officers “[b]ecause they were beating me.” He also said his written statement was taken two or three days after he was picked up by Mexican authorities, rather than on the same day, and that he was deprived of food and water during his detention. The witnesses disputed this. They testified that no promises or threats were made to encourage defendant to talk and no verbal or physical abuse was used against him. 25 26 27 A corrections officer who processed defendant in Tucson on November 25 testified that he observed no marks, scratches, or bruises consistent with defendant’s claim of having been physically abused. He said defendant’s only physical complaints were a sore throat and ear discomfort. Moreover, a Department of Corrections document, completed during a strip search, 28 -9- 1 indicated no marks or bruises on defendant. 2 The trial court’s determination that the statements were freely and voluntarily made will not be disturbed on appeal in the absence of clear and manifest error. State v. Hall, 120 Ariz. 454, 456, 586 P.2d 1266, 1268 (1978). The court here determined that the police officers’ testimony was consistent and credible, and that the Juarez confession was voluntary and not the result of duress, threats, or torture. We have searched the record and discovered nothing that would cause us to alter this finding, despite defendant’s claim of physical abuse, torture, and the alleged reputation of the Juarez police for beating prisoners. 3 4 5 6 7 8 Because confessions are prima facie involuntary, the court’s finding must be supported by a preponderance of the evidence. State v. Thomas, 148 Ariz. 225, 227, 714 P.2d 395, 397 (1986). There was more than enough evidence in this case. The trial court properly denied the motion to suppress. 9 Medrano I, 173 Ariz. at 395-96, 844 P.2d at 562-63. 10 Petitioner argues that the state court’s factual findings from the voluntariness hearing 11 were objectively unreasonable. See 28 U.S.C. § 2254(d)(2). Specifically, he asserts it was 12 unreasonable to find he was not deprived of food and water when no government witness 13 testified they saw him being fed while jailed in Juarez. (Id.) He further argues the state court 14 ignored the Juarez police force’s reputation for physical abuse and the testimony of El Paso 15 Detective Rojas, who acknowledged that Petitioner had pleaded during questioning not to 16 be hurt. (Id.) Finally, he challenges the Arizona Supreme Court’s failure to acknowledge 17 inconsistent testimony regarding the length of time he was jailed in Juarez and his claim of 18 being held incommunicado. (Id.) 19 Petitioner alleges that he did not receive food or water while jailed in Juarez. Deputy 20 Chief Rubalcava testified that he ordered his men to provide food and water to Petitioner. 21 (RT 6/9/88 at 21.) Petitioner testified that he did not receive food or water. (Id. at 60.) The 22 evidence on this point was conflicting, and the trial court credited the testimony of 23 Rubalcava. (RT 6/21/88 at 21-22.) There is nothing in the record to suggest that the trial 24 court’s crediting of Rubalcava’s testimony was objectively unreasonable. The Arizona 25 Supreme Court adopted the trial court’s findings. Medrano I, 173 Ariz. at 396, 844 P.2d at 26 563. A state court’s credibility determinations are entitled to great deference. See Rice v. 27 Collins, 546 U.S. 333, 341-42 (2006) (“Reasonable minds reviewing the record might 28 - 10 - 1 disagree about [a witness’s] credibility, but on habeas review that does not suffice to 2 supersede the trial court’s credibility determination.”); see also Marshall v. Lonberger, 459 3 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts no license to 4 redetermine credibility of witnesses whose demeanor has been observed by the state trial 5 court, but not by them.”). Based on the record before the state court, this Court finds it was 6 not objectively unreasonable for the state court to find that Petitioner had not been deprived 7 of food or water while incarcerated in Juarez. 8 Similarly, it was not objectively unreasonable for the state court to determine that 9 Petitioner had not been beaten and abused at the Juarez jail over a two-day period. The state 10 court heard from Juarez and El Paso police officials Rubalcava, Garza, and Rojas, each of 11 whom had dealings with Petitioner when he was arrested, questioned, and jailed pending 12 release to American officials. (RT 6/9/88 at 8-12, 27-42; RT 6/21/88 at 11-15.) Each 13 testified that Petitioner was not physically abused or threatened with abuse while incarcerated 14 in Juarez. (Id.) Petitioner testified that he was beaten and physically abused over a two-day 15 period. (RT 6/9/88 at 44-59.) Rubalcava testified that he was not sure whether Petitioner 16 was jailed for one, two, or three days. However, he also stated that Petitioner was arrested 17 on November 24. (Id. at 5-6.) Detective Patze testified that he obtained custody of Petitioner 18 on November 24 and transported him to Tucson late that same day. (RT 7/12/88 at 9-10.) 19 Lieutenant Whaley at the Tucson Correctional Facility testified that he processed Petitioner 20 into the federal facility on November 25. (RT 6/21/88 at 4-10.) In addition, Whaley testified 21 that Petitioner was thoroughly examined during processing and did not show any signs of 22 having been abused. (Id.) The trial judge who observed the witnesses expressly found the 23 officers’ testimony more credible than that of Petitioner. This Court cannot say that the state 24 court’s credibility determination was objectively unreasonable. 25 Based on the factual record before it, the Arizona Supreme Court concluded that 26 Petitioner’s confession was voluntary. Medrano I, 173 Ariz. at 396, 844 P.2d at 563. This 27 Court has reviewed the record underlying the factual determinations made by the state court 28 - 11 - 1 and concludes they were not objectively unreasonable. Therefore, Petitioner is precluded 2 from habeas relief under § 2254(d)(2). 3 With regard to § 2254(d)(1), Petitioner argues that the state court’s voluntariness 4 ruling was contrary to Reck v. Pate, 367 U.S. 433 (1961), because the court failed to discuss 5 and apply Reck as controlling federal precedent.5 However, the state court was under no 6 requirement to discuss or to even cite specific Supreme Court precedent in its rationale 7 denying the claim. See Early v. Packer, 537 U.S. 3, 8 (2002) (holding that state court need 8 not cite or even be aware of pertinent Supreme Court precedent so long as ruling does not 9 contradict such precedent). Moreover, the state court utilized the proper legal standard, even 10 though it did not cite to any federal caselaw. Specifically, the court found the Juarez 11 statement to be voluntary and “not the result of duress, threats, or torture.” Medrano I, 173 12 Ariz. at 395-96, 844 P.2d at 562-63. 13 Petitioner further contends that the state court failed to give his allegation of mental 14 retardation sufficient weight in determining whether his confession was voluntary. However, 15 the personal characteristics of a defendant, including mental capacity, are constitutionally 16 irrelevant absent proof of coercive police conduct. See Connelly, 479 U.S. at 164; Derrick, 17 924 F.2d at 818. Because the state court reasonably concluded that Petitioner’s confession 18 was not coerced by the Mexican police, Petitioner’s mental status was irrelevant in 19 determining voluntariness under the Due Process Clause. 20 In sum, Petitioner has not established that the state court’s rejection of his 21 voluntariness claim with regard to the Juarez confession was contrary to controlling federal 22 law or based on an objectively unreasonable determination of fact or application of law. 23 24 25 26 27 28 5 In Reck, the Court found involuntary a confession by a 19-year-old with subnormal intelligence, who was relentlessly interrogated daily for over a week without adequate food, without counsel, without access to friends and family, and while in serious pain, having to be taken twice to the hospital during the interrogation period. 367 U.S. at 441-42. Relying on Reck, Petitioner argues that his confession was similarly involuntary due to mental retardation, being beaten and held by the police incommunicado for two days, and being deprived of food and water. (Doc. 131 at 3-10.) - 12 - 1 Statements to American Authorities 2 On appeal, the Arizona Supreme Court agreed with the trial court’s findings that 3 Petitioner’s subsequent confessions to American law enforcement officers were not given 4 as a result of any threats, coercion, or promises. Medrano I, 173 Ariz. at 396, 844 P.2d at 5 563. The court further agreed that Petitioner’s subsequent confessions were voluntary and 6 properly admitted at trial. (Id.) 7 Petitioner’s contention regarding the reasonableness of this state court ruling hinges 8 on the argument that his statements to the Mexican police were coerced and involuntary, thus 9 tainting his subsequent confessions. (Doc. 131 at 3.) The Court has already determined that 10 the state court’s voluntariness determination as to the Juarez confession was not objectively 11 unreasonable. In light of this finding, Petitioner’s “taint” argument is plainly meritless. 12 C. Miranda Violation 13 In Miranda v. Arizona, the Supreme Court held that before police may subject a 14 criminal suspect to custodial interrogation the individual “must be warned that he has a right 15 to remain silent, that any statement he does make may be used as evidence against him, and 16 that he has a right to the presence of an attorney, either retained or appointed.” 384 U.S. 436, 17 444 (1966). These rights are a series of “procedural safeguards” designed “to insure that the 18 right against compulsory self-incrimination [is] protected.” Michigan v. Tucker, 417 U.S. 19 433, 444 (1974). 20 Statement Before Miranda Warnings 21 After being transferred to the custody of American officials and told he would be 22 charged with murder when returned to Tucson, Petitioner responded: “I did it, I done it, not 23 a day goes by that I do not think about it.” (RT 7/12/88 at 9-10.) Petitioner contends this 24 statement should have been suppressed because it was obtained without first providing him 25 with Miranda warnings. (Doc. 30 at 9-10.) The state court concluded that Petitioner’s 26 confession was not in response to interrogation and therefore the admission of the confession 27 at trial did not violate Miranda. Medrano I, 173 Ariz. at 396, 844 P.2d at 63. This Court 28 - 13 - 1 agrees. 2 Miranda does not require suppression of voluntary statements made by a defendant 3 in custody if such statements are not the product of interrogation. Rhode Island v. Innis, 446 4 U.S. 291, 297 (1980). The term “interrogation” refers both to direct questioning and its 5 “functional equivalent”—“words or actions on the part of the police (other than those 6 normally attendant to arrest and custody) that the police should know are reasonably likely 7 to elicit an incriminating response from the suspect.” Id. at 229-301. Whether conduct is the 8 functional equivalent of direct questioning is determined using an objective test. United 9 States v. Moreno-Flores, 33 F.3d 1164, 1169 (9th Cir. 1994). The focus is on the 10 “defendant’s perceptions.” Id. The officers’ subjective intent is relevant but not dispositive. 11 Id. Informing a defendant about the charges or the evidence against him is attendant to arrest 12 and custody, and is not deemed “interrogation.” Id. at 1168-69 (citation omitted). Even if 13 an officer’s statements “may have struck a responsive chord, or . . . constituted ‘subtle 14 compulsion,’” this is not enough to deem them the functional equivalent of interrogation. 15 Id. at 1169-70; see, e.g., Kemp v. Ryan, 638 F.3d 1245, 1255-56 (9th Cir. 2011) (holding that 16 officer’s question about suspect’s custody status not interrogation). 17 In this case, there was no interrogation because Petitioner’s statement was made in 18 response to the officers informing Petitioner that he was under arrest pursuant to a federal 19 warrant and would be charged with murder upon his return to Tucson. Because informing 20 a defendant about charges or potential charges is attendant to arrest and custody and is not 21 interrogation, there was no need for the officers to first provide Miranda warnings. See 22 Moreno-Flores, 33 F.3d at 1169. The Arizona Supreme Court’s conclusion that Petitioner’s 23 “I did it” statement was not made as the result of interrogation was not contrary to or based 24 on an unreasonable application of federal law. 25 Statements After Miranda Warnings 26 Detective Patze read Miranda warnings to Petitioner after they arrived at the U.S. 27 Marshal’s office in El Paso. Petitioner then answered questions about the murder and made 28 - 14 - 1 several incriminating statements. Hours later, after being transported to Tucson, Petitioner 2 was questioned by Tucson police and made additional incriminating statements. Petitioner 3 argues that admission of these statements at trial violated his Fifth Amendment right against 4 self incrimination because he did not knowingly and intelligently waive his rights due to his 5 alleged mental retardation. 6 A defendant may “knowingly and intelligently waive[] his privilege against self- 7 incrimination and his right to retained or appointed counsel.” Miranda, 384 U.S. at 475. To 8 constitute a “knowing and intelligent” waiver, the suspect must have understood both the 9 nature of the right being waived and the consequences of the decision to abandon it. 10 Colorado v. Spring, 479 U.S. 564, 573-74 (1987) (citing Moran v. Burbine, 475 U.S. 412, 11 421 (1986)). The relevant question is not whether the suspect knew and understood “every 12 possible consequence” of a Fifth Amendment waiver but whether he knew that he could 13 “choose not to talk to law enforcement officers, to talk only with counsel present, or to 14 discontinue talking at any time.” Id. Although the personal characteristics of a suspect are 15 irrelevant to a voluntariness analysis absent proof of police coercion, Connelly, 479 U.S. at 16 167, a suspect’s mental capacity is one of many factors to be considered in the “totality of 17 the circumstances” analysis regarding whether a Miranda waiver was knowing and 18 intelligent. See Garner v. Mitchell, 557 F.3d 257, 264-65 (6th Cir. 2009) (en banc) (noting 19 that totality of the circumstances includes a suspect’s background, experience, and conduct) 20 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). 21 22 23 24 25 In this case, the Arizona Supreme Court considered Petitioner’s alleged mental retardation in determining that Petitioner’s waiver of Miranda rights was valid: Defendant makes several arguments relating to his mental condition. His intelligence quotient (IQ) was apparently last measured and recorded as being 75 when he was 15 years old. He is now 36. He claims that his low IQ renders him “mentally retarded” and more prone to suggestion than a person of average intelligence. He argues, therefore, that his confessions were involuntary and his waiver of Miranda rights invalid. . . . 26 27 Defendant’s argument that his low IQ invalidated the confessions is without substance. Although below average, an IQ of 75 is higher than that generally thought to be evidence of mental retardation. See Penry v. Lynaugh, 28 - 15 - 1 2 3 4 492 U.S. 302, 308 n. 1, 109 S.Ct. 2934, 2941 n. 1 (1989). At worst, it may be considered borderline. See State v. Bishop, 162 Ariz. 103, 104, 781 P.2d 581, 582 (1989). Defendant, however, functioned adequately in society for many years prior to his confessions, although he had some problems with drug abuse. He attended high school for three years and worked in his father’s tire store as both a laborer and a salesman. There is no showing here that defendant’s intelligence was so compromised that his statements should be deemed involuntary. 5 Medrano I, 173 Ariz. at 396, 844 P.2d at 63. 6 Petitioner does not address the reasonableness of this ruling in his merits brief. In his 7 reply brief, with regard to a related ineffectiveness claim discussed next, Petitioner asserts 8 summarily that the Arizona Supreme Court unreasonably determined the facts by improperly 9 discounting the 20-year-old IQ test. (Doc. 145 at 13.) Having reviewed the record that was 10 before the state court at the time, this Court concludes that the state court’s ruling is based 11 on neither an unreasonable determination of fact nor application of controlling law. 12 In Derrick v. Peterson, a pre-AEDPA case, the Ninth Circuit considered whether the 13 defendant’s mental limitations rendered his Miranda waiver invalid. At the time of his 14 arrest, Derrick was 16 years old and had an IQ between 62 and 74. 924 F.2d at 815-17. The 15 police read him his rights at least four times, and he signed a written waiver. Id. at 824. 16 Derrick had a history of prior arrests and experience with the police, which the court found 17 suggested he understood the nature of a Miranda waiver. Id. Derrick’s own psychologists 18 also testified that Derrick could understand the concepts that the Miranda warnings are meant 19 to convey, although they also believed he could not understand all of the possible 20 consequences flowing from a waiver. Id. Observing that lack of foresight has never vitiated 21 a Miranda waiver, the Ninth Circuit upheld the state court’s determination that Derrick had 22 knowingly and intelligently waived his rights. Id. (citing Oregon v. Elstad, 470 U.S. 298, 23 316 (1985)). 24 The facts here are similar. Although Petitioner did not sign a written waiver of rights, 25 he orally acknowledged that he understood the warnings and was willing to answer 26 questions. Petitioner, in his early thirties, had a history of prior arrests and was serving a 27 federal sentence when the crime occurred. As in Derrick, such prior arrests and experience 28 - 16 - 1 with the police and criminal justice system suggest that Petitioner understood the nature of 2 his Miranda rights. Although Petitioner did not present psychological evidence at the 3 suppression hearing, he raised the mental retardation issue in his first PCR petition and 4 appended school records indicating a full-scale IQ score of 75. (ROA-PCR at 71.) The 5 Arizona Supreme Court considered the newly-developed information regarding Petitioner’s 6 intelligence level, but concluded that Petitioner’s background, education, work history, and 7 the circumstances surrounding the confessions showed his intelligence was not so 8 compromised that the waiver of Miranda rights was invalid. Medrano I, 173 Ariz. at 396, 9 844 P.2d at 563. Nothing in the record suggests that Petitioner did not understand the 10 Miranda warnings. Based on the facts that were before the state court, it was not objectively 11 unreasonable for the Arizona Supreme Court to find that Petitioner’s Miranda waiver was 12 valid in light of the totality of the circumstances. 13 D. Evidentiary Development 14 Petitioner seeks discovery, an evidentiary hearing, and expansion of the state court 15 record to show that Mexican police have repeatedly tortured others to confess and that 16 Petitioner is mentally retarded. However, in assessing whether a petitioner has satisfied 17 AEDPA’s threshold for relief for a claim adjudicated on the merits in state court, a federal 18 court’s review of the claim is limited to the record that was before the state court. See Cullen 19 v. Pinholster, 131 S. Ct. at 1398 (limiting review under § 2254(d)(1) to the state court 20 record); 28 U.S.C. § 2254(d)(2) (precluding habeas relief unless state court decision based 21 on unreasonable determination of fact “in light of the evidence presented in the State court 22 proceeding”). 23 Here, the Court has found for Claims 1 and 2 that Petitioner failed to satisfy either 24 prong of § 2254(d) in light of the evidence before the state court. Therefore, federal 25 evidentiary development in support of these claims is unwarranted, and the requests are 26 denied. See, e.g., Kemp v. Ryan, 638 F.3d at 1260 (observing that discovery would be futile 27 if petitioner not entitled to an evidentiary hearing). 28 - 17 - 1 II. Claim 14(A)(2) 2 In his amended petition, Petitioner asserts summarily that trial counsel “did not 3 understand the legal test for voluntariness and further failed to challenge all the confessions.” 4 (Doc. 30 at 32.) In his merits brief, Petitioner states that this ineffectiveness claim is 5 “subsumed by Claim One.” (Doc. 131 at 49.) However, Petitioner fails to address the merits 6 of the ineffectiveness claim within the discussion of Claim 1 other than to note that counsel 7 “failed to develop the claim that Petitioner’s mental retardation rendered his waiver of the 8 right to remain silent ‘unknowing.’” (Id. at 4.) This specific allegation was raised in 9 Petitioner’s first PCR petition (see ROA-PCR at 59) and denied by the Arizona Supreme 10 11 12 13 14 15 16 Court: Similarly, we reject the ineffective assistance claim as it relates to the admissibility of defendant’s inculpatory statements. Though no evidence on this issue was taken because the trial court erroneously ruled that the question could be raised on direct appeal and therefore was precluded, State v. Valdez, 160 Ariz. 9, 15, 770 P.2d 313, 319 (1989), we are able to “clearly determine from the record that the ineffective assistance claim is meritless.” State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). Given defendant’s background, education and work history, and the circumstances surrounding his repeated confessions, counsel’s failure to offer a below-average IQ measured almost two decades earlier does not present a colorable claim of ineffective assistance nor is it likely to have affected the outcome of this case. State v. Borbon, 146 Ariz. 392, 398, 706 P.2d 718, 724 (1985). 17 Medrano I, 173 Ariz. at 396, 844 P.2d at 563. Thus, this claim was adjudicated on the merits 18 in state court. 19 To establish an ineffectiveness claim, a petitioner must show that counsel’s 20 representation fell below an objective standard of reasonableness and that the deficiency 21 prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under the 22 AEDPA, this Court’s review of the state court’s decision is subject to another level of 23 deference. Bell v. Cone, 535 U.S. 685, 698-99 (2002). Petitioner must make the additional 24 showing that the state court’s ruling was based on an unreasonable application of Strickland 25 or an unreasonable determination of fact. 28 U.S.C. § 2254(d). 26 Petitioner’s only argument with respect to the state court’s ruling is that the Arizona 27 Supreme Court unreasonably determined the facts by discounting the significance of the 2028 - 18 - 1 year-old IQ test. The Court disagrees. Nothing in the state court’s decision indicates that it 2 rejected as fact that Petitioner had a below average intelligence. Indeed, in determining that 3 Petitioner’s Miranda waiver was valid, the court considered the totality of the circumstances 4 surrounding Petitioner’s confessions, including the fact that Petitioner had a low IQ but 5 nonetheless functioned adequately for many years prior to the confessions, attended three 6 years of high school, and had a work history as both a laborer and salesman. In addition, 7 Petitioner had prior arrests and was serving a federal sentence at the time of the offense. This 8 Court finds it was not objectively unreasonable for the state court to conclude that evidence 9 of Petitioner’s diminished intellect would not have affected admissibility of the confessions 10 had trial counsel presented such evidence at the suppression hearing. Because Petitioner has 11 not satisfied the necessary threshold for habeas relief under 28 U.S.C. § 2254(d), his requests 12 for evidentiary development of this ineffectiveness claim are denied. 13 III. Claim 4 14 Petitioner alleges that the prosecution’s failure to disclose notes from a pretrial 15 interview of child witness Londie Lespron violated his right to due process under Brady v. 16 Maryland, 373 U.S. 83 (1963). (Doc. 30 at 11.) Petitioner contends the notes establish that 17 others beside himself were at the victim’s house the night of the murder and, if properly 18 disclosed, could have been used to assert that someone else may have killed the victim and 19 that his confessions were false. (Doc. 131 at 31-32.) 20 A. 21 In June 1988, one month before trial, Detective Joseph Godoy and Deputy County 22 Attorney Sandra Hansen interviewed Yolanda Lespron and her six-year-old daughter, 23 Londie. (ROA-PCR at 145-47.) Londie, along with the victim’s five-year-old daughter and 24 two-year-old son, were at the victim’s home when the murder took place. Londie refused to 25 speak directly with Godoy or Hansen, and instead answered her mother’s leading questions. 26 (Id. at 146.) In a report, Detective Godoy summarized Londie’s responses as follows: 27 Background Baby Alex [victim’s son] was laughing. Boy knocking at window next to door. Two people, one boy, one girl. Alex [victim’s husband] told him to do 28 - 19 - 5 a favor. Sat down on Rocking chair. Angel, the black guy went past the room. Angel and Patty [the victim] talk a little while. Patty went to room. Angel hit Patty in the back. Angel in room, guys next to couch. Guys blocking the way. Patty walking to room when she was stabbed. Living room light on. Someone carrying a little puppy. Patty went outside to get a dog. Kids were jumping in the bed. Black guy (Angel) was laughing when kids were jumping. Standing near the couch, girl 1st left. Angel fell asleep. I saw a real dragon. Black guy had jeans and shirt, had black hair like Alex. I saw Patty with dots on her face in the morning when I woke-up. Baby Alex was playing with her. 6 (Id. at 145-46.) Godoy’s report was not disclosed to the defense prior to trial. (RT 11/10/88 7 at 3-5.) 1 2 3 4 8 Following Petitioner’s conviction but prior to sentencing, Yolanda Lespron wrote a 9 lengthy letter to the trial judge expressing her grief about the murder of her friend and 10 providing some of Londie’s recollections from the night of the crime. (Doc. 172-2 at 17-37.) 11 In August 1988, after receiving a copy of the letter, a defense investigator contacted Yolanda 12 and discovered that Londie had been interviewed by the prosecution prior to trial. (ROA- 13 PCR at 148-166.) Yolanda told the investigator that her daughter initially was in shock 14 following the murder and could not speak about it. Then about a year later, Londie saw 15 Petitioner’s picture in the newspaper and told her mother he was the man who had killed 16 Patricia Pedrin. (Id. at 151, 155.) Yolanda also said her daughter recalled, among other 17 things, Petitioner telling the victim her husband had sent him. (Id. at 150.) 18 The defense filed a motion for new trial, and the prosecution subsequently disclosed 19 Godoy’s report. (Doc. 172-2 at 4-10; RT 11/10/88 at 3-4.) Following a hearing, the trial 20 court denied relief, observing that the witness had been available for interview prior to trial 21 and concluding that Londie’s statement was not exculpatory. (RT 11/10/88 at 18-19.) On 22 appeal, the Arizona Supreme Court ruled: 23 24 25 26 27 We hold that the judge did not abuse his discretion here. “The test for a Brady violation is whether the undisclosed material would have created a reasonable doubt had it been presented to the jury.” State v. Dumaine, 162 Ariz. 392, 405, 783 P.2d 1184, 1197 (1989). The child’s testimony would have indicated at most that others were at the scene of the crime, not that defendant did not commit it. Moreover, as noted by the trial judge, defendant never mentioned the presence of other persons in any of his statements to the authorities. Defendant flatly stated, “I did it, I done it, not a day goes by that I don’t think about it.” 28 - 20 - 1 2 The evidence overwhelmingly pointed to defendant’s guilt. The trial court was in the best position to evaluate the potential effect that the child’s purported testimony would have had upon the jurors. We find that the court did not err in denying defendant’s motion to vacate judgment. 3 Medrano I, 173 Ariz. at 399, 844 P.2d at 566. 4 B. Discussion 5 Under Brady v. Maryland, the government has a constitutional obligation to disclose 6 information favorable to the defense. A successful Brady claim requires three findings: (1) 7 the government willfully or inadvertently suppressed evidence; (2) the evidence was 8 favorable to the accused; and (3) the evidence was material to the issue of guilt or 9 punishment. Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see Banks v. Dretke, 540 U.S. 10 668, 691 (2004); Kyles v. Whitley, 514 U.S. 419, 433 (1995). Evidence is material for Brady 11 purposes “if there is a reasonable probability that, had the evidence been disclosed to the 12 defense, the result of the proceeding would have been different.” Kyles, 514 U.S. at 433 13 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Here, it is undisputed that the 14 prosecution failed to turn over Detective Godoy’s report to Petitioner. (RT 11/10/88 at 12.) 15 However, the Arizona Supreme Court found that the report not material. Medrano I, 173 16 Ariz. at 399, 844 P.2d at 566. 17 Petitioner argues that the Arizona Supreme Court’s decision was contrary to Brady 18 because the court applied too high a materiality standard.6 (Doc. 131 at 40-41.) He contends 19 the Arizona Supreme Court’s applied standard—whether the undisclosed material would 20 have created reasonable doubt had it been presented to the jury—is not faithful to the 21 definition of materiality under Brady. (Id. at 41.) According to Petitioner, “he need not 22 demonstrate that in light of the undisclosed evidence, there would not have been enough 23 evidence for a conviction.” (Id. at 41.) 24 25 6 26 27 28 Petitioner also raises arguments concerning the trial court’s ruling; however, the Arizona Supreme Court’s opinion represents the “last reasoned decision” on this claim and is thus the applicable ruling for review under the AEDPA. Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). - 21 - 1 In Kyles v. Whitley the Court explained the materiality standard: 2 5 Bagley’s touchstone of materiality is a “reasonable probability” of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the government’s evidentiary suppression “undermines confidence in the outcome of the trial.” 6 514 U.S. at 434 (emphasis added; citation omitted). The Arizona Supreme Court did not 7 apply a different standard. The state court looked at whether the undisclosed material would 8 have created reasonable doubt had it been presented to the jury; the court did not, as 9 Petitioner argues, require that Petitioner show he would have been acquitted had the evidence 10 been disclosed. By assessing whether the undisclosed evidence created reasonable doubt, 11 the court necessarily considered whether the verdict was worthy of confidence, as a finding 12 of reasonable doubt would undermine confidence in the verdict. See United States v. Agurs, 13 427 U.S. 97, 112 (1976) (“[I]f the omitted evidence creates a reasonable doubt that did not 14 otherwise exist, constitutional error has been committed. . . . If there is no reasonable doubt 15 about guilt whether or not the additional evidence is considered, there is no justification for 16 a new trial.”). Therefore, the state’s materiality standard was faithful, not contrary to, 17 controlling federal law. 3 4 18 Petitioner appears to also argue that the Arizona Supreme Court unreasonably applied 19 Brady in concluding that the undisclosed evidence was not material. (Doc. 131 at 34-42.) 20 He contends information of others being in the house would have supported an innocence 21 defense and would have been material to defense efforts to suppress his statements. (Id. at 22 36.) The Court disagrees. 23 Londie identified Petitioner as the person who stabbed Patricia Pedrin. Thus, her 24 statement hardly supports an innocence defense. The contention that others might have been 25 present in the house when Petitioner murdered the victim does not change the inculpatory 26 nature of Londie’s observations. Nor does this contention provide a basis to conclude that 27 Petitioner’s statements were coerced. As observed by the Arizona Supreme Court, the 28 - 22 - 1 evidence against Petitioner was substantial. In addition to confessing, Petitioner could not 2 be excluded as the source of semen found on the victim’s panties. (RT 7/12/88 at 121-34.) 3 Patricia Pedrin’s neighbor heard a honking car horn around 2:15 a.m. and saw a vehicle pull 4 into Pedrin’s driveway (corroborating Petitioner’s statement that he used his car horn to 5 summon the victim to her door). (Id. at 55-60.) The lights in Pedrin’s home were out but an 6 interior light came on after the male driver went to her door. (Id. at 62-63.) A short time 7 later, he heard Pedrin’s door slam and a vehicle speed away. (Id. at 60.) Sometime after 8 3:00 a.m. Petitioner ran into his girlfriend at a convenience store and told her he had blood 9 on his hands. (RT 7/14/88 at 20.) A button found on the victim’s bed corresponded to a 10 button missing from the shirt Petitioner said he was wearing the night of the murder. (RT 11 7/12/88 at 92-93.) Shoe and tire prints from the victim’s driveway were consistent with 12 Petitioner’s boots and vehicle. (Id. at 76-80, 84-85, 89, 106-10.) Any exculpatory value in 13 Londie’s reference to others being present at the home is marginal at best. Thus, the state 14 court did not unreasonably conclude that the omitted evidence was not material. 15 Based on the record that was before the state court, this Court finds that Petitioner has 16 not demonstrated under § 2254(d) that the state court’s denial of his Brady claim was 17 contrary to, or based on an unreasonable application of, controlling federal law. 18 Accordingly, Petitioner is precluded from relief on Claim 4, and his requests for further 19 evidentiary development are denied. 20 IV. Claim 14(A)(1) and 14(A)(5) 21 In Claim 14(A)(1), Petitioner alleges that trial counsel was ineffective in failing to 22 develop an innocence defense theory based on Londie Lespron’s statement. (Doc. 30 at 31- 23 32.) In Claim 14(A)(5), Petitioner further alleges that trial counsel was ineffective in failing 24 to interview the children who were in the home at the time of the murder. (Id. at 32.) 25 Although these claims were exhausted during state PCR proceedings, the state court found 26 them to be procedurally precluded. In a previous order, the Court concluded that the state 27 court’s preclusion ruling did not rest on independent and adequate state grounds. (Doc. 119 28 - 23 - 1 at 16-18.) Consequently, Petitioner is entitled to de novo review of these claims because the 2 state court did not adjudicate them on the merits. See Menendez v. Terhune, 422 F.3d 1012, 3 1026 (9th Cir. 2005). 4 The Court need not address counsel’s performance if prejudice cannot be shown. To 5 establish prejudice from deficient performance, a petitioner “must show that there is a 6 reasonable probability that, but for counsel’s unprofessional errors, the result of the 7 proceeding would have been different. A reasonable probability is a probability sufficient 8 to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. 9 Petitioner contends that he was prejudiced by trial counsel’s omissions because 10 Londie’s statements support an innocence defense. (Doc. 145 at 28.) However, the issue is 11 not whether her statement supported other trial defenses but whether as a result of counsel 12 not interviewing Londie or attempting to develop a different defense based on her statement, 13 there is a reasonable probability the result of the proceeding would have been different. As 14 discussed in Claim 4, the Court finds that the failure to interview Londie and develop a 15 defense based on her potential testimony does not undermine confidence in the jury’s verdict. 16 Londie’s statements in fact corroborate Petitioner’s confessions of guilt, as she allegedly saw 17 him stab the victim. Thus, even assuming the allegations as true, Petitioner cannot show 18 prejudice from the failure to interview Londie before trial and is not entitled to evidentiary 19 development of Claim 14(A)(1). See Schriro v. Landrigan, 550 U.S. at 474 (“[I]f the record 20 refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court 21 is not required to hold an evidentiary hearing.”). 22 With respect to Claim 14(A)(5), Petitioner does not identify what information counsel 23 would have obtained had he interviewed the victim’s children. Conclusory allegations of 24 ineffectiveness are insufficient to state a claim or obtain an evidentiary hearing. See Williams 25 v. Woodford, 384 F.3d 567, 588 (9th Cir. 2004) (“[C]onclusory allegations by counsel that 26 are unsworn and unsupported by any proof or offer of proof do not provide an adequate basis 27 to obtain a federal evidentiary hearing.”); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) 28 - 24 - 1 (“Conclusory allegations which are not supported by a statement of specific facts do not 2 warrant habeas relief.”). 3 V. Claim 14(B)(2) 4 Petitioner contends that appellate counsel was ineffective for failing to raise on appeal 5 a claim alleging trial counsel’s ineffectiveness from the failure to obtain a DNA expert and 6 independently examine crime scene evidence. (Doc. 30 at 33.) This claim was raised during 7 state PCR proceedings but the state court did not reach a decision on the merits. (Doc. 119 8 at 18.) Consequently, Petitioner is entitled to de novo review. Menendez, 422 F.3d at 1025- 9 26. 10 The Fourteenth Amendment guarantees a criminal defendant the effective assistance 11 of counsel on his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). A claim 12 of ineffective assistance of appellate counsel is reviewed under the standard set out in 13 Strickland. Miller v. Keeney, 882 F.2d 1428, 1433-34 (9th Cir. 1989). A petitioner must 14 show that counsel’s appellate advocacy fell below an objective standard of reasonableness 15 and there is a reasonable probability that, but for counsel’s deficient performance, the 16 petitioner would have prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285-86 (2000); 17 Miller, 882 F.2d at 1434 n.9 (citing Strickland, 466 U.S. at 688, 694). 18 Petitioner does not specifically identify the scientific evidence he alleges trial counsel 19 should have had independently examined or identify the type of testing counsel should have 20 undertaken. This lack of specificity demonstrates that appellate counsel was not ineffective 21 for failing to urge such a claim on appeal. Petitioner also asserts that trial counsel should 22 have enlisted a DNA expert but again does not identify what evidence should have been 23 subjected to DNA testing and acknowledges that at the time of his trial “many modern DNA 24 techniques were not available for the analysis of biological evidence.” (Doc. 131 at 53.) 25 Petitioner argues that challenging the state’s scientific evidence could have shown that 26 his blood was not at the crime scene. (Doc. 131 at 53.) However, the only blood-related 27 evidence admitted at trial was identified as consistent with the victim, not Petitioner. (RT 28 - 25 - 1 7/12/88 at 126.). Petitioner also argues that scientific testing would have corroborated his 2 claim that he “did not forcibly have sex with the victim through evidence of lack of bruising 3 and/or force.” (Doc. 145 at 29-30.) However, the medical examiner testified that he found 4 no trauma or injury to the victim’s vaginal area, and defense counsel reiterated this point 5 during closing argument. (RT 7/13/88 at 39-40; RT 7/15/88 at 44-45.) Petitioner does not 6 explain what testing should have been undertaken to demonstrate lack of force. Finally, the 7 Court observes that the only incriminating scientific evidence admitted at trial related to 8 semen found on the victim’s panties. A criminalist testified that Petitioner could not be 9 excluded as the source of the semen. (RT 7/12/88 at 126.) However, Petitioner does not 10 dispute that he had sex with the victim; instead, he claims the sex was consensual. Therefore, 11 it is unclear what would have been gained by additional testing of the semen, if that is the 12 type of independent examination Petitioner contends should have been undertaken by trial 13 counsel. 14 Given the speculative and conclusory nature of Petitioner’s allegations of 15 ineffectiveness against trial counsel regarding the failure to enlist a DNA expert and conduct 16 independent scientific testing, the Court finds that appellate counsel’s failure to raise such 17 claims did not fall below an objective standard of reasonableness for appellate advocacy. 18 Furthermore, because the facts as alleged do not demonstrate a colorable claim for federal 19 habeas relief, Petitioner is not entitled to further develop evidence in support of this claim. 20 Williams, 384 F.3d at 588. 21 CONCLUSION 22 The Court concludes that Petitioner is not entitled to federal habeas relief on his 23 conviction-related claims. The Court further finds that an evidentiary hearing is neither 24 warranted nor required with respect to these claims. 25 CERTIFICATE OF APPEALABILITY 26 Rule 22(b) of the Federal Rules of Appellate Procedure provides that an applicant 27 cannot take an appeal unless a certificate of appealability has been issued by an appropriate 28 - 26 - 1 judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases provides that the 2 district judge must either issue or deny a certificate of appealability when it enters a final 3 order adverse to the applicant. If a certificate is issued, the court must state the specific issue 4 or issues that satisfy 28 U.S.C. § 2253(c)(2). Pursuant to 28 U.S.C. § 2253(c)(2), a COA 5 may issue only when the petitioner “has made a substantial showing of the denial of a 6 constitutional right.” This showing can be established by demonstrating that “reasonable 7 jurists could debate whether (or, for that matter, agree that) the petition should have been 8 resolved in a different manner” or that the issues were “adequate to deserve encouragement 9 to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 10 463 U.S. 880, 893 & n.4 (1983)). 11 Although this is not a final order, the Court has determined that reasonable jurists 12 could not debate its resolution of Petitioner’s conviction-related claims. Accordingly, when 13 final judgment is entered in this case, the Court does not intend to issue a COA on any of the 14 issues addressed herein. 15 Based on the foregoing, 16 IT IS HEREBY ORDERED that Claims 1, 2, 4, 14(A)(1), 14(A)(2), 14(A)(5), and 17 14(B)(2) of Petitioner’s First Amended Petition for Writ of Habeas Corpus (Doc. 30) are 18 DENIED WITH PREJUDICE. 19 IT IS FURTHER ORDERED that any party seeking reconsideration of this order 20 pursuant to LRCiv 7.2(g) shall do so no later than fifteen (15) days after the filing of this 21 order. 22 23 IT IS FURTHER ORDERED that Petitioner’s sentencing-related claims remain stayed pending further order of the Court. 24 IT IS FURTHER ORDERED that the Clerk of Court substitute Charles L. Ryan, 25 Director of the Arizona Department of Corrections, for Dora Schriro as a party to this matter, 26 pursuant to Fed. R. Civ. P. 25(d)(1). 27 IT IS FURTHER ORDERED that the Clerk of Court send a courtesy copy of this 28 - 27 - 1 Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007- 2 3329. 3 DATED this 1st day of March, 2012. 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 - 28 -

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