Whitehead v. Ryan et al

Filing 45

ORDERED that the 1 Petition for Writ of Habeas Corpus (State/2254) filed by Cassius Clayton Whitehead is dismissed. It is further ordered that the Clerk of Court should enter judgment and close this case. It is further ordered that, pursuant to Rule 11 of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability. Signed by Magistrate Judge Lynnette C Kimmins on 11/7/2018. (BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cassius Clayton Whitehead,
Petitioner,

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ORDER

v.

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No. CV-14-2481-TUC-LCK

Charles L. Ryan, et al.,

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Respondents.

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Petitioner Cassius Whitehead has filed a Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), Respondents’

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Answer (Doc. 20), and Petitioner’s Reply and accompanying declaration (Docs. 29, 30).

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The parties have consented to Magistrate Judge jurisdiction. (Doc. 34.)
FACTUAL AND PROCEDURAL BACKGROUND

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Whitehead was convicted in the Pima County Superior Court on four counts of

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armed robbery, five counts of kidnapping, ten counts of aggravated assault, and five

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counts of attempted first-degree murder. (Doc. 20, Ex. U.) The trial judge sentenced

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Whitehead to prison terms totaling 118 years. (Id.)

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The Arizona Court of Appeals summarized the facts in support of Whitehead’s
convictions:
Whitehead entered a bank wearing a ski mask and gloves. He pointed a gun
at bank employees and ordered them to give him cash from the bank vault
and cash drawers. Some of these items included tracking devices. A key
from the bank also fell in the bag. Whitehead left the bank in a car that
police officers found abandoned about ten minutes later.

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Using the tracking system from the bank, officers found Whitehead
riding a bicycle away from where a car matching the description of the one
driven by the bank robber was parked. The officers saw Whitehead get off
the bicycle, pull a gun from his bag and jump over a wall into a residential
area. Soon after, he began firing at the officers, injuring two of them.
Whitehead then began running away, and an officer shot him, stopping him.
(Id., Ex. A at 2.)

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Whitehead appealed and the Arizona Court of Appeals affirmed his convictions

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and sentences. (Id., Exs. A, E.) Whitehead’s Petition for Review to the Arizona Supreme

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Court was denied. (Id., Exs. B, C.) Whitehead filed a Notice of Post-conviction Relief

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(PCR). (Id., Ex. V.) He then filed a pro se PCR petition, which he subsequently amended.

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(Id., Exs. W, X.) After a multi-day evidentiary hearing, the PCR court denied relief. (Id.,

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Ex. Y.) Whitehead appealed and the Arizona Court of Appeals affirmed, adopting the

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PCR court’s ruling. (Id., Exs. Z, AA.)

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DISCUSSION

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Whitehead raises six claims. (Doc. 1.) Without conceding the point, Respondents

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do not contend that Whitehead failed to exhaust any of the claims. (Doc. 20 at 11.) Thus,

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the Court will review all six claims on the merits.

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Legal Standards for Relief under the AEDPA

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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) created a

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“highly deferential standard for evaluating state-court rulings’ . . . demand[ing] that state-

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court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24

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(2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)). Under the

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

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merits” by the state court unless that adjudication:

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(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
(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.

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28 U.S.C. § 2254(d). The last relevant state court decision is the last reasoned state
decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005)
(citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan, 403
F.3d 657, 664 (9th Cir. 2005).
“The threshold test under AEDPA is whether [the petitioner] seeks to apply a rule
of law that was clearly established at the time his state-court conviction became final.”
Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under
subsection (d)(1), the Court must first identify the “clearly established Federal law,” if
any, that governs the sufficiency of the claims on habeas review. “Clearly established”
federal law consists of the holdings of the Supreme Court at the time the petitioner’s state
court conviction became final. Williams, 529 U.S. at 365; see Carey v. Musladin, 549
U.S. 70, 74 (2006).
The Supreme Court has provided guidance in applying each prong of
§ 2254(d)(1). The Court has explained that a state court decision is “contrary to” the
Supreme Court’s clearly established precedents if the decision applies a rule that
contradicts the governing law set forth in those precedents, thereby reaching a conclusion
opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set
of facts that is materially indistinguishable from a decision of the Supreme Court but
reaches a different result. Williams, 529 U.S. at 405-06; see Early v. Packer, 537 U.S. 3,
8 (2002) (per curiam). Under the “unreasonable application” prong of § 2254(d)(1), a
federal habeas court may grant relief where a state court “identifies the correct governing
legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the
particular . . . case” or “unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or unreasonably refuses to extend
the principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a
federal court to find a state court’s application of Supreme Court precedent
“unreasonable,” the petitioner must show that the state court’s decision was not merely

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incorrect or erroneous, but “objectively unreasonable.” Id. at 409; Schriro v. Landrigan,
550 U.S. 465, 473 (2007); Visciotti, 537 U.S. at 25. “A state court’s determination that a
claim lacks merit precludes federal habeas relief so long as ‘“fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 131 S.
Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

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Under the standard set forth in § 2254(d)(2), habeas relief is available only if the
state court decision was based on an unreasonable determination of the facts. Miller-El v.
Dretke, 545 U.S. 231, 240 (2005) (Miller-El II). In considering a challenge under
§ 2254(d)(2), state court factual determinations are presumed to be correct, and a
petitioner bears the “burden of rebutting this presumption by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); Landrigan, 550 U.S. at 473-74; Miller-El II, 545 U.S.
at 240.
Claim 1
Whitehead alleges trial counsel was ineffective for the following reasons:
(a) counsel did not conduct sufficient voir dire or strike jurors with law enforcement
backgrounds; (b) Whitehead was denied unrestricted access to counsel; (c) counsel failed
to preserve a Batson challenge based on religious affiliation; (d) counsel failed to conduct
an adequate investigation; and (e) counsel failed to communicate and collaborate with cocounsel. Whitehead was represented at trial by Kyle Ipson as lead counsel and Somer
Chyz. All of the IAC claims are based on Ipson’s performance.
Standard for IAC Claims
IAC claims are governed by Strickland v. Washington, 466 U.S. 668 (1984). To
prevail under Strickland, a petitioner must show that counsel’s representation fell below
an objective standard of reasonableness and that the deficiency prejudiced the defense. Id.
at 687-88.
The inquiry under Strickland is highly deferential, and “every effort [must] be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

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counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.” Id. at 689. Thus, to satisfy Strickland’s first prong, deficient performance, a
defendant must overcome “the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id.
A petitioner must affirmatively prove prejudice. Id. at 693. To demonstrate
prejudice, he “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
a.

Jury Selection

Whitehead alleges counsel should have explored the law enforcement connections
of jurors Glenn, Sonntag, Fancher, and Wakefield, in light of the victims being police
officers.
During jury selection, juror Wakefield stated that she worked for the Attorney
General’s office as a legal assistant in the civil division and that the agency represented
corrections officers and probation officers. (RT 11/3/08 at 116-17, 175.)1 Juror Fancher
stated that her son-in-law was with the Pima County Sheriff but that would not influence
her and she had no doubt she could be fair to the defendant. (RT 11/4/08 at 35-36, 172.)
In ruling on this claim, the PCR court noted that jurors Fancher and Wakefield were
alternates;2 therefore, Petitioner was not prejudiced by their presence on his jury. (Doc.
20, Ex. Y at 4.) Because they did not serve on the jury that deliberated, there is not a

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“RT” refers to transcripts filed by Respondents as part of the state court record.
(Doc. 21.)
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Whitehead alleges that Fancher was not an alternate but served on the jury; he
agrees that Wakefield was an alternate. The Court is unable to verify which jurors
rendered the verdict based on the available transcripts. Because Whitehead has not
rebutted the state court’s fact-finding on this point with clear and convincing evidence,
the Court accepts it as true. See 28 U.S.C. § 2254(e)(1). Further, Whitehead makes no
argument specific to Fancher and there are no grounds to find that the outcome of the
case would have been different if Fancher had sat in deliberation on the case.
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reasonable likelihood Whitehead would not have been convicted if counsel had
challenged these jurors for cause.
Juror Sonntag disclosed that he had worked with potential witness Donald Bley for
15 years but stated that would not cause a problem in evaluating his testimony.3 (RT
11/4/08 at 92-93.) As a contract officer for Raytheon he had contact with federal agents
but had no doubt he could be fair to the defendant. (Id. at 102.) Also, he had taken
business law classes. (Id. at 147-48.) During voir dire, juror Glenn stated that he owned
“a lot” of guns and shooting was his hobby. (RT 11/4/08 at 131, 154.) He had been
employed by the Arizona Department of Corrections for 11 years. (Id. at 135-36, 154.)
He had knowledge of the law in relation to corrections work and a brother-in-law that
was a district attorney out of state. (Id. at 148, 165-66.) When asked by the Court, juror
Glenn stated that he could be fair to the defendant and the prosecution and make a
decision based on the evidence. (Id. at 157.)
Whitehead testified during the Rule 32 Evidentiary Hearing that he told counsel
Chyz that he had a problem with Glenn and he wanted him off the jury.4 (RT 3/29/11 at
113.) “Co-counsel Somer Chyz testified that the Petitioner did have reservations about
one juror (Glenn) because of his job at the Arizona Department of Corrections, but does
not recall a discussion about striking the juror.” (Doc. 20, Ex. Y at 4.) Counsel Ipson did
not remember a conversation about Glenn. (Id.) The PCR Court denied this claim finding
no prejudice based on jury selection:

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Each juror was questioned during voir dire concerning whether they could
be fair and impartial to the defendant and the prosecution, and would have
been removed from the panel if they could not be impartial. The Petitioner
is unable to provide any evidence from which this Court can conclude that
“but for” these jurors, Petitioner would have been acquitted.

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Donald Bley did not testify at trial; his brother was a witness.

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In the Addendum, Whitehead alleges that juror Glenn looked familiar, lived in
his old neighborhood, and looked at him “crazy-eyed.” Whitehead did not testify to those
facts during the PCR court evidentiary hearing. He also did not testify that he
communicated that information to counsel Ipson or Chyz. (RT 4/29/11 at 13.)
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(Id. at 4.)
Whitehead’s argument amounts to a contention that Ipson should have questioned
Sonntag and Glenn further about their law enforcement connections. However,
Whitehead does not articulate any necessary follow-up questions that were not asked of
Glenn or Sonntag. Most critically, both jurors were asked if they could be fair to the
defendant, despite their backgrounds, and they both assured the Court that they could.
Even if counsel was deficient for failing to communicate with Whitehead during
the voir dire process, there is no evidence that Glenn or Sonntag were biased or that the
outcome of the proceeding would have been different if they had been struck. The PCR
court’s denial of this claim was not objectively unreasonable.
b.

Access to Counsel

Whitehead alleges he did not have free access to counsel Ipson; specifically, that
counsel did not consult with him during jury selection. Whitehead frames this claim as
one of complete denial of counsel. Under United States v. Cronic, 466 U.S. 648, 659
(1984), prejudice will be presumed if a defendant is denied counsel at a critical stage of
the proceedings. This standard is not applicable here because Whitehead’s counsel
conducted voir dire and peremptory strikes and co-counsel Chyz communicated with
Whitehead during that process.5
In denying Whitehead’s access to counsel claim, the PCR court stated:

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Jail visitation records indicate that Trial Counsel and his
investigators met with Petitioner after Trial Counsel’s appointment, and this
communication was before and included the actual trial. At the evidentiary
hearing, Trial Counsel did acknowledge his visits were short in comparison
to his investigator’s visits with the Petitioner, but the jail records and
testimony by Trial Counsel do not establish there was a failure to
communicate with Petitioner.

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Whitehead also cites Geders v. United States, 425 U.S. 80 (1976). That case is
not applicable because the Sixth Amendment violation in that case was limited solely to a
situation where the defendant was denied contact with counsel during an overnight recess
that occurred between his direct testimony and cross-examination. 425 U.S. at 91.
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(Doc. 20, Ex. Y at 3.) Here, Whitehead is not alleging a general lack of access as
addressed by the PCR court. He argues only that he was denied access to counsel during
jury selection. As addressed above in subclaim (a), Petitioner has failed to establish
prejudice arising from counsel’s conduct during jury selection. For the same reason, his
access to counsel claim fails.
c.

Batson Objection on Religious Grounds

Whitehead alleges counsel was ineffective for failing to preserve a Batson
challenge to juror L. based on her religious affiliation. On appeal, the court found that
counsel had not preserved a challenge based on religious affiliation. (Doc. 20, Ex. A at
10.) The Court went on to note that, although striking a juror based on religious
affiliation was improper under state law, the prosecutor’s strike was based on his belief
that the juror was confrontational not on the impermissible ground of religion. (Id. at 11.)
The PCR court similarly concluded that Whitehead suffered no prejudice by counsel’s
actions because the strike of juror L. was not impermissible. (Doc. 20, Ex. Y at 5.)
Central to resolution of this claim is the merit of the underlying state law Batson
challenge,6 which was addressed on appeal and by the PCR court. As a general matter, a

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federal court will not review a state court’s determinations on state law. See Estelle v.
McGuire, 502 U.S. 62, 67 (1991) (“it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions”); Johnson v. Sublett, 63
F.3d 926, 931 (9th Cir. 1995). Under the AEDPA, the Court assesses whether the PCR
court’s decision, that trial counsel was not ineffective, was an unreasonable application of
Supreme Court law to the facts. The appellate court determined that a Batson challenge

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based on religious affiliation would not have been successful. Thus, Whitehead cannot

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establish prejudice because there is not a reasonable probability that he would have won

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As discussed below in Claim 4, the United States Supreme Court has not
recognized a Batson claim based on religious affiliation. However, Arizona does
recognize such a claim. State v. Purcell, 18 P.3d 113, 120, 199 Ariz. 319, 326 (Ct. App.
2001).
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relief if trial counsel had preserved the claim for appeal. The PCR court’s decisionBthat
Petitioner’s trial counsel was not ineffective for failing to preserve the Batson
challengeBwas not an unreasonable application of Strickland to the facts.

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d.

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Whitehead argues that Ipson’s pretrial preparation was inadequate, as evidenced
by: (i) failing to timely provide a notice of defenses to the prosecution along with a
witness and exhibit list, and failure to file with the court a joint pretrial statement;
(ii) failing to timely investigate and provide factual support for the “dual-defense”
(misidentification and third-party culpability) including eyewitnesses, medical personnel
and first responders, and TPD officers; (iii) failing to present medical records and a
medical expert; (iv) failing to retain a ballistics expert; (v) failing to retain and prepare an
ID expert prior to trial; and (vi) not calling the witnesses he expressed an intent to call.
i.

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Pretrial Investigation and Preparation

Pretrial Filings

Whitehead alleges that counsel failed to timely provide a notice of defenses and
witness and exhibit lists, and failed to file a joint pretrial statement. The PCR court found
counsel’s conduct unreasonable – “[t]rial Counsel was late in his disclosure of witnesses,
failed to obtain Board of Inquiry transcripts, and failed to file a joint pretrial statement.”
(Doc. 20, Ex. Y at 3.) However, the court concluded that Whitehead was not prejudiced
by counsel’s omissions. (Id.) With respect to counsel’s failure to obtain Board of Inquiry
transcripts, the PCR court found that Petitioner “is unable to point to a particular line of
questioning or discrepancies between the testimony at trial and the transcripts which
undermine the credibility of police officer testimony.” (Doc. 20, Ex. Y at 6.) Therefore,
the PCR court found no prejudice arising from counsel’s actions on cross-examination.
(Id.)
The Court finds these rulings were not objectively unreasonable. The trial court
did not preclude the defense from introducing any evidence due to late disclosures.

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Whitehead fails to identify any prejudice arising from counsel’s omissions. Therefore,
this subclaim is without merit.
ii.

Investigation

Whitehead argues that counsel conducted an untimely and inadequate
investigation. After a multi-day evidentiary hearing, the PCR court addressed
Whitehead’s claim that counsel conducted a deficient investigation:

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Trial counsel’s testimony was that he relied on the interviews
conducted prior to being assigned the case, using interviews conducted by
the State and Defendant’s previous attorney to determine whether a witness
would provide favorable testimony. At an evidentiary hearing on March 28,
2011, Trial Counsel testified that his investigators attempted to contact
witnesses who lived in an apartment complex near the scene of the
shooting, but found that these witnesses no longer lived in the complex.
Trial Counsel in his testimony also told of his frustration with the Petitioner
who told counsel that he knew who committed the crimes, but would not
disclose this person’s name.
At the March 29, 2011 Evidentiary Hearing, Trial Counsel further
testified that there were at least three visits to the scene of the crime to
attempt to interview witnesses, he reviewed nine boxes of material, and
investigated several potential defenses. Trial Counsel testified about his
attempt to connect this crime to another robbery in the area, but upon
further investigation found the description of the unmasked perpetrator who
robbed a check cashing business, did not match the description of the
individual in this case.
(Doc. 20, Ex. Y at 3.) The PCR court concluded that, even if Whitehead could establish
an inadequate investigation, he failed to establish any prejudice from the absence of
additional witnesses. (Id.) Regarding which witnesses counsel called at trial, the PCR
court held that is a tactical decision not subject to an ineffectiveness claim if there is a
reasoned basis. (Doc. 20, Ex. Y at 5.) The PCR court concluded that Petitioner had not
established how the cited witnesses would have changed the outcome of the trial. (Id.)
Therefore, the court found Petitioner had not shown counsel’s actions to be deficient or
that he was prejudiced by Ipson’s decision. (Id.)
Whitehead argues he was prejudiced by the inadequate investigation because
Ipson could have presented the following evidence: witness Kyle Colberg could have
testified that she was able to drive down Jerrie street (despite a quad covering that street)

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and heard a number of shots; Officer Magos saw a black male inside the “quadded” area,
west of where Whitehead was shot, he saw somebody enter a residence, and he saw a
vehicle speed off; other witnesses testified to hearing a “gun battle” and that officers were
returning fire; and Aaron Wilmore as an alternate suspect.
Ipson testified that he read all nine boxes of disclosure from the state and used
anything helpful. (RT 3/29/11 at 36-37; RT 6/20/11 at 78.) He used the witness
statements to determine whether follow-up with a particular person would be worthwhile.
(RT 3/29/11 at 42.) In making those decisions he considered that numerous police
officers identified Whitehead as the shooter. (Id. at 43.) Ipson testified that, based on his
professional judgment, he made a tactical decision not to call any fact witnesses because
they were not helpful or would have created unwanted confusion. (RT 6/20/11 at 46-47,
54.) Ipson was confident he pursued all possible defenses for Whitehead based on the
available evidence. (RT 3/29/11 at 57.) Ipson testified that members of the defense team
visited the crime scene at least three times prior to trial, attempting to locate witnesses
and get the layout of the area. (Id. at 17-18, 35.) Ipson believed the investigator could not
locate any of the witnesses. (RT 3/28/11 at 42, 43.) He testified that “we did just about
everything we could to find people and interview people.” (Id. at 100.)
Whitehead argues that, during PCR proceedings, advisory counsel for Whitehead
located witness Kyle Colberg, which contradicted Ipson’s testimony that no witnesses
could be located. Regardless, Colberg’s proposed testimony does not call into question
the verdict of guilt. Although she was able to enter the “quadded” area, she was seen
doing so and interviewed by the police.7 This does not support an implication that
someone else entered or left the area unseen. Officer Magos’s observations also do not
implicate the jury verdict. All of the officers testified the shooting was coming from the
northeast corner of the block. Therefore, observations of what was occurring in the

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Officer Heather Mah testified that the purpose of setting up the quad was so that
anyone entering or leaving the area would be seen by an officer. (RT 11/6/08 at 156-57.)
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western portion of the “quadded” area are not highly probative as to the shooter’s
identity. Further, Whitehead was shot heading west less than a minute after the shooter
fired his last shots. (RT 11/12/08 at 92-93, 171.) If someone else was the shooter, they
could not have moved unseen to a location west of Whitehead in the gap between the
shooting and Whitehead being struck.
Whitehead argues that witnesses from the neighborhood supported the idea that
there was a shooter in another location and Ipson failed to investigate that possibility.8
Ipson testified that he ultimately did not call the witnesses on his pretrial list because
some of them could not be located and others did not have useful information. (RT
3/28/11 at 70-71.) Ipson stated that his investigator went to the apartment complex across
the street from the shooting but was unsuccessful in locating witnesses that had stated
they saw a light-skinned black male run through their complex. (RT 3/28/11 at 40-41.)
Two of the witnesses (Davis and Gonzales), from the apartments on the north side of
Pima Street,9 had given statements indicating a man with a gun may have been located at
their apartment complex. (RT 3/29/11 at 11-12.) Mr. Ipson did not find those statements
very probative because a person located at those apartments could not have fired the shots
at the officers, based on where the officers were located, the site from where the officers
heard the shots originating, and the location of the bullets. (Id. at 12-13, 26, 64-66; RT

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Whitehead cites the following evidence from witness statements: witness Davis
saw a man similar to defendant pointing a gun and he described a “gun battle”; Witness
Gonzales heard 30-40 shots back and forth; Witness Nichols saw an officer and assailant
shooting back and forth and then a man running really fast; Witness Martin saw a hand
over the wall shooting and officers shooting back; Witness Blackshear described alternate
shotgun blasts and handgun fire; Witness Bley heard two different calibers shooting back
and forth; and Officer Ramsey said they did not know from what location the shots
originated. In contrast to these statements, all of the officers’ weapons were checked and
only one shot had been fired, which was from the gun of the officer that shot Whitehead.
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Although Whitehead indicated that Davis lived at the Tuscany Apartments on the
north side of Pima Street (RT 3/29/11 at 11), he then called into question whether these
witnesses could have been in an apartment complex south of Pima (id. at 15-16). There
are apartments on Catalina Avenue, south of Pima Street. However, they are halfway
down the block on the east side of the road and that location would not have allowed
someone to shoot into the front of the officers that were facing west and southwest from
the intersection of Pima Street and Catalina Avenue.
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6/20/11 at 79-80, 83, 85.) The defense investigator interviewed a Cody Nichols but,
based on testimony at the evidentiary hearing, he likely located the wrong person. (RT
3/28/11 at 25; RT 3/29/11 at 30.) Additionally, the witness statement of Nichols indicated
seeing something a block down from the scene, which was not exculpatory. (RT 6/20/11
at 32-33.)
Ipson testified that the defense team looked into Aaron Wilmore as an alternative
suspect and discovered that he and Whitehead bore no resemblance to one another, so it
was not possible officers had mistaken Whitehead for Wilmore, as a third-party suspect.
(RT 3/28/11 at 35-36; RT 3/29/11 at 41.) Wilmore was dark skinned, about two inches
shorter than Whitehead with a stockier build, and with a “pretty extensive” afro. (RT
3/28/11 at 37.)
In sum, it was not objectively unreasonable for the PCR court to conclude that
Whitehead was not prejudiced by Ipson’s investigation and decisions on which witnesses
to call at trial.
iv.

Medical Evidence

Whitehead argues counsel was ineffective for failing to obtain, review, and utilize
all available medical records. He alleges that Officer Berube told the Board of Inquiry
that he shot Whitehead on the left side of his body, and the Tucson Fire Department
records indicate a wound to his left abdomen. Whitehead alleges there was evidence he
was shot more than once. Further, Whitehead alleges counsel should have presented
independent expert medical testimony in light of the inconsistencies.
The fact that Whitehead had a wound to his left abdomen does not contradict
testimony that he was shot on the right side because evidence established that the bullet
exited Whitehead’s body (although it was not recovered). Further, counsel Ipson testified
at the PCR evidentiary hearing that he was concerned further investigation on this point
would confirm that Whitehead had been shot by Officer Berube. (RT 3/28/11 at 68.)
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Whitehead, not Officer Berube, he testified to making a strategic decision not to pursue
this issue further. Whitehead has not carried his heavy burden to demonstrate that
counsel’s decision on this point was not sound trial strategy. See Matylinsky v. Budge,
577 F.3d 1083, 1091 (9th Cir. 2009).
v.

Ballistics Expert

Whitehead argues that counsel should have retained a ballistics expert. He argues,
generally, that counsel Ipson could not adequately cross-examine the officers about the
ballistics without obtaining his own independent forensics investigation. In particular, he
contends that if an expert had challenged the state’s theory about the location of the
shooter, in contradiction of Officer Mah’s testimony, it would have undermined her
testimony regarding the identity of the shooter.
The PCR court found that it “strains credulity” to find that a ballistics expert could
have “completely undermine[d] the testimony of multiple police officers” as to the events
of the shootings. (Doc. 20, Ex. Y at 6.) Therefore, the Court found no prejudice arising
from counsel’s failure to retain a ballistics expert.
Officer Mah was not alone in her testimony about the location of the shooter.
Although she was the only officer that testified to seeing the shooter’s face during any of
the shooting, numerous officers testified that the person shooting was in the same yard
identified by Officer Mah. Additionally, several officers testified to seeing the shooter in
the back of a pickup truck inside the yard.
Officer Mah did not mention the truck, but she testified that the suspect must have
been “standing on something” when he placed his hands on the wall and fired his
weapon. (RT 11/6/08 at 159.) Whitehead relies upon the testimony of Detective Hanson
that a person could not have used the wall as a rest if he was in the truck, based on the
bullet trajectory. (RT 11/7/08 at 153.) Thus, the jury was offered testimony that Officer
Mah may have been wrong about the shooter’s specific location at the time he fired the
first shots. Despite hearing that evidence, the jury concluded there was sufficient

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evidence to convict Whitehead. There is not a reasonable probability that additional
evidence to support this theory would have changed the outcome of the trial.
A ballistics expert could have called into question the exact angle of particular
shots, however, it is pure speculation to suggest such testimony would have undermined
the testimony of the officers as to the general location of the shooter. Thus, there is no
reason to believe such testimony would have called into question Officer Mah’s
identification of Whitehead as the shooter. It was not objectively unreasonable for the
PCR court to conclude that Whitehead was not prejudiced by counsel’s failure to retain a
ballistics expert.
(vi)

ID Expert

Prior to trial, counsel gave notice that he would be calling an ID expert. However,
during trial, he changed experts. Whitehead argues it was deficient for counsel not to
retain an ID expert prior to trial. He argues the late retention prevented counsel from
using Dr. Davis’s theories in cross-examination of the witnesses that identified
Whitehead. Further, it led to objections, bench conferences, and two voir dires of Dr.
Davis during her direct examination.
With respect to the late retention of identification expert Dr. Deborah Davis, the
PCR court found Petitioner’s hypothetical argument that the expert would have been
more compelling if counsel had retained her earlier was unsupported. (Doc. 20, Ex. Y at
7.) The Court found no prejudice with respect to counsel’s retention and preparation of
Dr. Davis.
Despite the late retention of Dr. Davis, the trial court did not preclude her
testimony or her PowerPoint presentation. It is theoretically possible that counsel could
have more effectively utilized the evidence from Dr. Davis with earlier preparation, but
Whitehead fails to articulate what counsel could have done. Further, Whitehead has not
identified any prejudice arising from the fact that the late disclosure caused interruptions

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to Dr. Davis’s testimony. The PCR court’s denial of this claim for lack of prejudice was
not objectively unreasonable.
e.

Communication with Co-counsel and Inconsistent Theories

Whitehead argues that counsel Ipson failed to coordinate with co-counsel Chyz
regarding defenses, he abandoned a mere presence defense, he presented contradictory
theories about who shot Whitehead, and he failed to request a mere presence instruction
and/or a third-party defense instruction. (Doc. 1-1 at 51.)
With respect to inconsistencies between statements to the jury by Petitioner’s two
counsel, the PCR court held that isolated mistakes over the lengthy trial did not amount to
ineffective assistance. (Doc. 20, Ex. Y at 9.) During jury selection, counsel Chyz gave a
mini-opening in which she twice stated to prospective jurors that Officer Berube shot
Whitehead one time and that Whitehead was not culpable but merely present. (RT
11/3/08 at 101-02, 103; RT 11/4/08 at 83-84, 85.) During his opening statement, counsel
Ipson stated that the parties did not know if Officer Berube or someone else shot
Whitehead. (RT 11/5/08 at 85.) During the course of trial, counsel Ipson told the court
that he was relying upon a mistaken identify defense not a true mere presence defense.
(RT 11/6/08 at 63-65.) During his closing argument, counsel Ipson questioned who shot
Whitehead, was it Officer Berube or someone else? (RT 11/21/08 at 126-27.) He went on
to argue that this unknown other person shot at the police officers, not Whitehead. (Id. at
128.) The inconsistencies between what counsel Chyz said during jury selection and what
counsel Ipson stated during closing arguments 18 days later were insignificant. Both
counsel argued that someone else shot at the police, not Whitehead; whether counsel
labeled the defense one of mere presence or mistaken identity, they are similar not
contradictory. The PCR court’s denial of this claim was not objectively unreasonable.
With respect to counsel’s failure to request a “mere presence” jury instruction, the
PCR court found no prejudice because the jury received an identification instruction and

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the evidence of Petitioner’s guilt was overwhelming. (Doc. 20, Ex. Y at 9.) The jury was
instructed on identification, which was the central issue:

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in addition to showing the commission of these offenses it is necessary and
incumbent upon the State to prove beyond a reasonable doubt that the
defendant was the one who committed them. If you entertain any
reasonable doubt as to the question of the identity of the person who
committed these offenses, you must find the defendant not guilty.
(RT 11/24/08 at 13.) The evidence of Whitehead’s guilt was substantial, including more
than one witness that identified Whitehead as the shooter and others that identified him as
being in the same location as the shooter, having the same skin tone and build as the
shooter, wearing the same clothes as the shooter, and carrying a gun. There is not a
reasonable likelihood that Whitehead would not have been convicted if counsel had
continued to pursue a mere presence defense and obtained a mere presence jury
instruction or some other third-party defense instruction (which Whitehead fails to
articulate with specificity). The PCR court’s denial of this claim was not objectively
unreasonable.
Finally, Whitehead argues that Ipson failed to discuss the bank robbery during
closing argument, which prejudiced him. No witness could identify Whitehead as the
person at the bank; the connection to the robbery was the bag containing the tracker
packs that Whitehead was seen carrying and that was found in the yard where the shooter
fired at the officers. The critical issues for the defense centered on what happened shortly
before, during, and after the shootings. As Whitehead acknowledged in his Addendum to
the Petition, the shooting dominated the trial, overshadowing the bank robbery. (Doc. 1-1
at 44.) The jury received instructions on the charges arising from the bank robbery.
Whitehead fails to articulate any prejudice arising out of the omission from the closing
argument. Because he has not established prejudice, this claim fails.
Conclusion
The Court considers the cumulative effect of all the IAC allegations raised by
Whitehead. The evidence against Whitehead was overwhelming. It included numerous

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people that identified him as being in the yard with a gun at the time the shots were fired
at the officers. Officer Heather Mah identified Whitehead as the person she saw on the
bike (RT 11/6/08 at 152) and looking over the wall at the corner of Pima and Catalina
firing at the officers (id. at 161-62). Detective Baker identified with certainty Whitehead
as the person he saw on the bike, then with a gun, and jumping out of the yard after the
shots were fired. (RT 11/12/08 at 57-58, 67, 92.) Charles Bley identified Whitehead as
the person that ran east across his yard to his neighbors where the shooting was heard,
and that he was the same person that was shot by the police in his yard. (RT 11/19/08 at
172-73, 174, 192.) In light of this evidence and the entirety of the trial record, the Court
finds that none of the alleged errors by trial counsel created a reasonable probability that
Whitehead would not have been convicted of any of the charges absent counsel’s failures.
Claim 2
Whitehead alleges he was denied his Sixth Amendment right to counsel free of a
conflict of interest based on a conflict between the attorney’s personal interest and
Whitehead’s interests.
Analysis
Whitehead alleged a version of this claim in his amended PCR Petition. (Doc. 20,
Ex. X at 92-97.) The focus of the claim was that the investigators operated under a racial
bias against Whitehead,10 but he also mentioned the investigators’ law enforcement
backgrounds as a conflict.11 The PCR court found no evidence to support a claim of racial
bias by trial counsel or the investigators and denied the claim alleging a conflict of
interest. (Doc. 20, Ex. Y at 10.) The PCR court did not address directly a conflict of
interest based on Ipson’s personal interest. However, because Respondents’ addressed

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10

Whitehead did not allege a claim of racial bias in the Petition before this Court.
Ipson testified at the PCR evidentiary hearing that Whitehead’s race did not interfere with
his representation of him. (RT 3/28/11 at 102.)
11

In a declaration, Whitehead states that he included a conflict of interest claim in
his post-Rule 32 evidentiary hearing brief, but it was edited out by advisory counsel.
(Doc. 30.) The substance of that claim is unknown to the Court.
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this claim on the merits, so does the Court. See 28 U.S.C. 2254(b)(2) (unexhausted claims
may be denied on the merits).
Whitehead alleges generally that the conflict is an ethical one between Ipson’s
personal interests and the interests of Whitehead. (Doc. 1-2 at 3, 7.) Whitehead cites
several facts as evidence of the conflict. First, counsel Ipson used retired TPD officers as
investigators when the victims in the case were TPD officers.12 Second, Whitehead
alleges Ipson and the investigators did not conduct a timely, thorough pretrial
investigation and Ipson was not adequately prepared for trial. Third, Whitehead contends
that Ipson allowed anger and frustration to negatively impact his relationship with
Whitehead, in that he treated him with disrespect and attempted to force Whitehead to
confess. (Id. at 5-6.) He then characterized the conflict in varying ways: Ipson “chose the
interests, convenience and regard of members of his staff and jurors with law
enforcement background over the legal interests of his client” (Doc. 1-1 at 50); Ipson’s
personal and business conflicts caused him to be ineffective (Doc. 1-2 at 8); and Ipson
had a “third person” conflict under the American Bar Association Model Rules of
Professional Conduct 1.7(a)(2), which prohibits representing a client if there is a
“significant risk” that the lawyer’s representation will be “materially limited by the
lawyer’s responsibilities” to a third person.
To establish a violation of the Sixth Amendment right to counsel based on a
conflict of interest, a defendant must demonstrate that counsel “actively represented
conflicting interests,” and his performance was defective. Mickens v. Taylor, 535 U.S.
162, 175 (2002) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). In other words, a
defendant must show “that an actual conflict of interest adversely affected his lawyer’s
performance.” Cuyler, 446 U.S. at 348. The court looks at whether counsel’s alleged

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12

Whitehead noted serious problems with investigator Tatman and informed Ipson
of the conflict. Whitehead alleges that Tatman “[i]nterrogated him, made disrespectful,
inflammatory, and unprofessional comments concerning the case and his law
enforcement career. Tatman told Petitioner to confess, he was guilty and deserved a long
sentence.” (Doc. 1-2 at 4.)
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deficient performance was the result of a conflict. Id. at 349. Here, Whitehead alleges
defective performance by Ipson but has not alleged the deficiency was due to a conflict.
He alleges only a general personal interest and that Ipson “chose” the interests of his staff
over those of his client. However, Whitehead does not allege that Ipson had an actual
responsibility to a third party or a personal interest that was in conflict with Whitehead’s
interests. Cf. Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008) (noting that courts
are concerned only about legal conflicts, which could include a conflict between a
lawyer’s private interest and that of his client, but does not include a client’s distrust of
lawyer); Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007) (finding that a
disagreement over trial strategy does not amount to a conflict of interest). Whitehead
alleged all the same deficiencies in Claim 1 to support the IAC claim and the facts will be
evaluated in that context. However, he has not alleged he was deprived of his right to
counsel due to a conflict.
Motion to Expand the Record13
Whitehead seeks discovery, to expand the record, and an evidentiary hearing on
Claim 2. First, Whitehead argues he should be allowed to develop this claim because the
PCR court rejected his claim of bias for lack of supporting evidence. The PCR court
rejected on that ground only Whitehead’s claim that counsel had a conflict based on
racial bias. (Doc. 20, Ex. Y at 10.) Whitehead did not raise that claim before this Court;
therefore, no development is warranted. See infra note 10.
Second, Whitehead alleges that the pro se memorandum submitted after the PCR
evidentiary hearing, which was filed by advisory counsel, had been edited without his
knowledge and the conflict of interest claim deleted. See infra note 11. The Court finds
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The Court previously denied Whitehead’s motion to expand the record without
prejudice and stated that it would consider whether further development was warranted at
the time it considered the Petition in full. (Doc. 39.) Therefore, the Court now considers
the substance of Whitehead’s request to develop the record.
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claim raised in Whiteheads’ federal habeas petition regardless of how it was raised and
addressed in state court.
Finally, Whitehead has not alleged what evidence he would develop if the Court
granted the motion. Regardless, because the Court found that Whitehead is not entitled to
relief, accepting his allegations as true, there is no basis to expand the record or hold a
hearing. See Schriro v. Landrigan, 550 U.S. 465, 477, 481 (2007).
Claim 3
Whitehead alleges the trial court violated his Sixth Amendment right to counsel in
denying his request to substitute counsel. He argues that he demonstrated an
irreconcilable conflict with Ipson, yet, the court denied the motion.
At an April 7, 2008 hearing, Whitehead asked for a change in counsel due to a
breakdown in relationship because appointed counsel Baker-Sipe had not investigated
and prepared for trial. (RT 4/7/08 at 5, 16.) The court granted the request, appointing
Ipson, but cautioned Whitehead the next appointment would be the last attorney the judge
would appoint. (Id. at 6.) On September 5, 2008, two months before trial, the trial court
heard Whitehead’s subsequent motion to represent himself. (RT 9/5/08 at 9.) He stated
that he asked to represent himself because the court had told him it would not allow a
second request for substitution of counsel, a decision the court affirmed at that September
hearing. (Id. at 4-5.) Whitehead contended that his counsel was competent but not
“adequate.” (Id. at 4, 14.) Whitehead stated that he had no meaningful communication
with counsel; counsel Ipson had visited him three times for 5-10 minutes, one hour, and
three hours.14 (Id. at 6-8.) Whitehead expressed concern that counsel had not yet
interviewed any defense witnesses, explored discovery, or retained any experts. (Id. at 11,
13.) Whitehead stated that he was “compelled” to represent himself. (Id. at 16-17.) Ipson

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14

Based on the jail visitation logs admitted at the PCR evidentiary hearing, Ipson
visited on April 22, 2008, for 15 minutes; on August 27, 2008, for 23 minutes; on
September 3, 2008, for 45 minutes, and on September 4, 2008, for 2 hours and 26
minutes. (RT 3/28/11 at 28-29.) Ipson’s investigator interviewed Whitehead for almost
two hours on May 8, 2008. (Id. at 30.)
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informed the court that he would be ready for trial in November, he had been discussing
pretrial interviews with the prosecutor, he was preparing a Desserault motion, a motion
to suppress and a motion to preclude, his investigator would be interviewing the list of
witnesses from Whitehead, and prior counsel had interviewed 20 prosecution witnesses.
(Id. at 9, 10, 11, 13, 16, 22.) The Court granted Whitehead self-representation and
appointed his two former attorneys as advisory counsel. (Id. at 24-25, 37.) Whitehead
represented himself until October 10, 2008, when he informed the Court that he would
like advisory counsel to represent him going forward. (RT 10/10/08 at 6-8.)
The Arizona Court of Appeals denied the claim:

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¶ 8 Because Whitehead ultimately requested that Ipson represent him at
trial, he has waived any issue concerning the representation after that
point.1 See State v. Lamar, 205 Ariz. 431, ¶¶ 23–24, 72 P.3d 831, 836
(2003) (decision to continue with appointed counsel withdrawal of request
for self-representation); cf. State v. Cruz, 218 Ariz. 149, ¶ 105, 181 P.3d
196, 213 (2008) (withdrawn objection waived). And Whitehead has not
demonstrated that the events occurring between the trial court’s denial of
substitute counsel and his request that Ipson represent him deprived him of
his right to counsel. Thus, Whitehead has failed to show he was prejudiced
by the court’s denial of his request. See State v. Doerr, 193 Ariz. 56, ¶ 33,
969 P.2d 1168, 1176 (1998) (“Error is harmless if we can say beyond a
reasonable doubt that it did not affect or contribute to the verdict.”).

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¶ 9 Moreover, even if we address the merits of his complaint, his claim
fails. At the time of the hearing, Ipson had met with Whitehead three times,
once briefly, once for an hour and once for three hours.
Whitehead’s complaints about Ipson’s failure to interview witnesses,
investigate the case and file motions concern either counsel’s competence
or his diligence in preparation for trial. But because ineffective assistance
of counsel may be raised only in a petition for post-conviction relief, we
will not consider the quality of counsel’s representation here. See State v.
Torres, 208 Ariz. 340, ¶¶ 15, 17, 93 P.3d 1056, 1060–61 (2004); see also
State v. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d 525, 527 (2002) (“[I]neffective
assistance of counsel claims are to be brought in Rule 32[, Ariz. R. Crim.
P.], proceedings” and “will not be addressed by appellate courts” if brought
on direct appeal.). And Whitehead provided the trial court with no evidence
that the two months remaining before trial would not be sufficient for Ipson
to finish interviewing witnesses, investigate and file motions or that Ipson
had refused to do so. We cannot find that any conflict could not have been
reconciled by Ipson’s actions in the time leading up to trial. Additionally,
the perceived problems Whitehead alleged did not amount to a complete
breakdown in communication or an irreconcilable conflict. Instead, it
merely appears that Whitehead would have preferred other counsel. See
Cromwell, 211 Ariz. 181, ¶ 28, 119 P.3d at 453.

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¶ 10 Furthermore, Whitehead wanted to replace Ipson for reasons very

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similar to the ones he previously gave for replacing Baker–Sipe.
And Whitehead provides no evidence that the same conflicts would not
have arisen with another substitution of counsel. Thus, the trial court did
not abuse its discretion in denying Whitehead’s second motion for
substitute counsel. See Moody, 192 Ariz. 505, ¶ 11, 968 P.2d at 580.
(Doc. 20, Ex. A at 2-6.)
To the extent Whitehead challenges Ipson’s performance at trial, the Court
addresses those allegations above in Claim 1. As of October 10, Whitehead requested that
Ipson represent him going forward through trial; therefore, he cannot claim he had
irreconcilable differences with counsel at that point. In evaluating this claim the Court
looks at the information available at the time substitution of counsel was requested
through the time Whitehead asked that Ipson be re-appointed.
If a state court denies a motion to substitute counsel, the ultimate inquiry in a
federal habeas proceeding is whether the petitioner’s Sixth Amendment right to counsel
was violated. Schell v. Witek, 218 F.3d 1017, 1026 (9th Cir. 2000). The Sixth
Amendment is not implicated by every conflict between a defendant and counsel. See
Daniels v. Woodford, 428 F.3d 1181, 1196-97 (9th Cir. 2005), cert. denied, 550 U.S. 968
(2007). A defendant is entitled to competent counsel, United States v. Cronic, 466 U.S.
648, 655 (1984), and Whitehead has conceded that Ipson met that standard (RT 9/5/08 at
4). A defendant’s Sixth Amendment right to counsel does not entitle a defendant to a
“meaningful relationship” with that counsel. Morris v. Slappy, 461 U.S. 1, 13-14 (1983).
Indigent defendants do not have a Sixth Amendment right to the counsel of their choice.
Gonzalez v. Knowles, 515 F.3d 1006, 1012 (9th Cir. 2008) (citing Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 624 (1989)).
Whitehead relies on an “irreconcilable conflict” with counsel. This is not a
concept found in Supreme Court law; thus, it is not central to the question before the
Court.15 However, the Ninth Circuit has held in a habeas case that “a trial court’s refusal

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15

Whitehead cites state court law to support his contention that he had an
irreconcilable conflict with Ipson. (Doc. 1-2 at 91, citing State v. Torres, 93 P.3d 1056,
1060, 208 Ariz. 340, 344 (2004).) This Court must look to federal law and may only
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to allow substitution of counsel can violate a defendant’s Sixth Amendment right to
counsel if the defendant and his attorney have an “irreconcilable conflict.” Stenson v.
Lambert, 504 F.3d 873, 886 (9th Cir.2007), cert. denied, 523 U.S. 1008 (2008). This
level of conflict exists only if communication has so broken down that it prevents the
effective assistance of counsel. Id. at 886; Schell, 218 F.3d at 1026. A court evaluates
three factors in determining if a conflict with counsel is “irreconcilable”: “(1) the extent
of the conflict; (2) the adequacy of the inquiry by the trial court; and (3) the timeliness of
the motion for substitution of counsel.” See Stenson, 504 F.3d at 886.
Here, despite Whitehead’s argument that the relationship was “totally fractured,”
the conflict was not extreme. In support of his assertion, Whitehead focuses on the fact
that counsel had not yet done the trial preparation that Whitehead believed should have
been completed two months prior to trial. Counsel represented that he could be ready for
trial and was preparing motions and prepping for interviews. Whitehead agreed his
counsel was competent and he did not allege they were not able to communicate. It does
not appear that, at the time Whitehead requested substitution of counsel, there was a
complete breakdown of communication. This is supported by their subsequent
relationship when Ipson was serving as advisory counsel. After Whitehead was granted
leave to represent himself, he had regular communication with the advisory attorneys. At
a September 19 hearing, advisory counsel indicated they were visiting Whitehead one or
two times per week, would get him a complete file copy, would file his motions, would
take a DVD player for him to view evidence, had an investigator assigned to the case, and
were assisting him with a Desserault motion. (RT 9/19/08 at 13, 17, 18, 22, 25, 30-31.)
And, at an October 6 hearing, counsel represented Whitehead in discussing the
Desserault motion, DNA experts, and disclosure of medical records. (RT 10/6/08 at 6-11,
18-21, 27-28.)

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grant relief if the state court’s decision was contrary to controlling Supreme Court law.
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The trial court explored the nature of the conflict during a hearing, discussing the
extent of visits and communication with counsel, what pre-trial preparation had been
completed and was contemplated by counsel, defendant’s concern about the delay in
preparing, and the benefit of counsel versus self-representation. (RT 9/5/08 at 5-24.) The
motion for substitution was made two months prior to trial. Granting the motion would
have required a continuance of the trial, which had already been delayed for substitution
of counsel. Because the trial court conducted an adequate evaluation of the conflict, the
conflict was not extreme or irreparable, and granting substitution would have delayed
trial for a second time, Whitehead’s conflict with counsel was not irreconcilable. See
Midkiff v. Lampert, 125 F. App’x 791, 792 (9th Cir. 2005) (finding no Sixth Amendment
violation despite counsel’s failure to contact all witnesses identified by defendant and to
provide

defendant

with

full

discovery,

because

significant

deterioration

communication was not an irreconcilable conflict).
As found by the state court, Whitehead did not have an irreconcilable conflict with
Ipson. At a minimum, the state court’s denial of this claim was not an unreasonable
application of Supreme Court law.
Claim 4
Whitehead alleges the trial court violated his Fourteenth Amendment rights by
denying his Batson challenge. After peremptory strikes, Whitehead’s counsel requested
that the prosecution provide a race-neutral reason for striking juror L. (RT 11/5/08 at 37.)
Although Whitehead did not make a prima facie showing, the prosecutor provided the
following explanation:

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in

Lizetta Smith was a problem for many reasons. The most significant one
came up later. So I’m kind of taking these out of order. You had already
asked the question of does anybody have a background in social work, any
kind of social work. She sat through that, doesn’t mention anything. No
response to that. Then later on in response to some other question, I can’t
remember what, she brings up that she was working for an outfit called, I
wrote it down, Last Chance Juvenile Offenders.
....
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Number one, she doesn’t answer about social work, if that’s not social
work, I don’t know what is. Secondly, she’s somebody that’s involved with
an organization for a last chance for juvenile offenders. I think it shows that
she may be somebody particularly sympathetic who may have a problem
with that idea of sympathy and prejudice, ignoring sympathy, like wanting
to salvage people, all people are salvageable, even the defendant should be
given another chance. And I think she’s somebody that will have a problem
with that, finding – being firmly convinced even when the evidence
accomplishes that.
She has a brother who is serving time, which alone is not – I mean,
I’ve got a few other people I struck, let me go through that too. I struck Ms.
Hammer because she has a son in prison for bad checks. . . .

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The guy I left on, I was kind of torn about this, was Karber, and I left
him on because he listens to Shawn Hannity, he called 911 numerous times
on his son because of his drug addiction, and his son is locked up because
of drug addiction. And that is kind of a different scenario to me. That’s
somebody who feels bad about his son but was calling 911, so he doesn’t
have a problem with law enforcement.

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She wore a T-shirt that was pretty aggressive on the other day.

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THE COURT: What does that mean?

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MR. MOSHER: It said Christ for Life on it.

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THE COURT: That’s not aggression. That’s just a statement.

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MR. MOSHER: It was pretty outgoing.

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THE COURT: Well, yeah.

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MR MOSHER: I didn’t find any other statement of any anybody’s
religious beliefs or policies [sic] beliefs or anything else in any other juror.
THE COURT: Well, you can’t strike her for religious belief.
MR. MOSHER: No, I think it’s pretty policy oriented to come in on
the first day of the jury selection, and here’s a T-shirt outwardly showing
some belief system, but I’m talking about that shows to me some kind of
confrontational things going on with her.
That’s corroborated by the last thing I wanted to talk about is the
staring that I get from her towards me quite frequently. I don’t know what
that’s all about but she stares at me a lot, and I’m not saying that she’s tried
to speak to me or done anything else, but I don’t like that vibe of somebody
who is constantly staring over at me every time I look up.
Let me make sure I covered everything. There was a rape in 2000
with no prosecution. That’s it.
THE COURT: Any response by defense?

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MR. IPSON: No.
THE COURT: The Court finds there’s no Batson violation. It was
race neutral. Denied.
(Id. at 38-41.) The Arizona Court of Appeals denied this claim:
¶ 19 Although not dispositive, that the prosecutor did not strike K. [an
African–American man] from the jury suggests a nondiscriminatory
motive. See State v. Cañez, 202 Ariz. 133, ¶ 23, 42 P.3d 564, 577 (2002).
And the prosecutor offered various permissible race-neutral reasons for
striking L. See id. ¶¶ 18, 28 (“concern regarding candor” race-neutral);
Martinez, 196 Ariz. 451, ¶ 15, 999 P.2d at 800 (striking social worker
because forgiving would be permissible). The trial court did not abuse its
discretion in finding the strike was not racially discriminatory.
See Purcell, 199 Ariz. 319, ¶¶ 22, 29, 18 P.3d at 119, 121–22.
....
¶ 22 Whitehead suggests that because the prosecutor did not strike a juror
who made a delayed response and another who had a son who was
incarcerated, it shows the strike of L. was because of her race or religious
affiliation. However, he does not show that the other jurors who remained
on the jury had the same combination of the many reasons for which the
prosecutor struck L. Thus, this comparison does not show that the
prosecutor’s reasons were not legitimate. See Purcell, 199 Ariz. 319, ¶ 23,
18 P.3d at 119. The trial court did not abuse its discretion in
denying Whitehead’s Batson challenge.
(Doc. 20, Ex. A at 8-11.)

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In the federal habeas petition, Whitehead’s Batson challenge is focused on the

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state’s strike of juror L. as being based on her religious affiliation. The Supreme Court

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has never extended the protections of Batson to a juror’s religious affiliation. See Cash v.

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Barnes, 532 F. App’x 768, 769 (9th Cir. 2013) (citing Davis v. Minnesota, 511 U.S. 1115

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(1994)). Therefore, the appellate court’s decision on this ground could not be contrary to,

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or an unreasonable application of, Supreme Court law. Habeas relief on this portion of

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the claim is not available. See Carey v. Musladin, 549 U.S. 70, 74 (2006).

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In the federal habeas petition, Whitehead does not clearly raise a Batson challenge

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based on juror L’s race. (See Doc. 1-2 at 98-107.) However, because the claim is

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exhausted and Respondent briefed it, the Court will address it. Under Batson and its

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progeny, a defendant’s challenge to a peremptory strike requires a three-step analysis.

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First, the trial court must determine whether the defendant has made a prima facie
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showing that the prosecutor exercised a peremptory strike on the basis of race. See Rice v.
Collins, 546 U.S. 333, 338 (2006). Then, the burden shifts to the prosecutor to present a
race-neutral explanation for the peremptory challenge. Id. The ultimate question of
whether the defendant carried his burden of proving purposeful discrimination is left to
the trial court. Id.
The court’s determination regarding intentional discrimination is a question of
fact. Flowers v. Mississippi, 136 S. Ct. 2157, 2158 (2016); Hernandez v. New York, 500
U.S. 352, 364 (1991) (plurality opinion). Therefore, a habeas petitioner is entitled to
relief on a Batson claim only if the state court’s denial of the claim constituted “an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(2); see Rice, 546 U.S. at 338. Thus, this Court
can grant relief only “if it was unreasonable to credit the prosecutor’s race-neutral
explanations for the Batson challenge.” Id. In addition, under § 2254(e)(1), “[s]tate-court
factual findings . . . are presumed correct; the petitioner has the burden of rebutting the
presumption by ‘clear and convincing evidence.’” Id. at 38-39. Although “[r]easonable
minds reviewing the record might disagree about the prosecutor’s credibility . . . on
habeas review that does not suffice to supersede the trial court’s credibility
determination.” Id. at 341-42. The trial court’s credibility finding of the prosecutor’s
explanation for the strike is entitled to substantial deference. See Davis v. Ayala, 135 S.
Ct. 2187, 2199 (2015) (citing Felkner v. Jackson, 562 U.S. 594, 598 (2011)).
The explanations offered by the prosecutor for striking L. were not inherently
discriminatory and, therefore, were race-neutral under Batson. Rice, 546 U.S. at 338;
Hernandez, 500 U.S. 360 (“unless a discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race neutral”). The explanations were
specific and supported by the record. See Mitleider v. Hall, 391 F.3d 1039, 1050 (9th Cir.
2004). They were not implausible or fantastic. See Purkett v. Elem, 514 U.S. 765, 768
(1995) (per curiam). In fact, in his brief, Petitioner stated that the prosecutor’s

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explanations “may have been race-neutral.” (Doc. 1-2 at 100.) Additionally, both the
United States Supreme Court and the Ninth Circuit have utilized comparative juror
analyzes to assess whether a prosecutor’s race-neutral explanation for a strike was in fact
a pretext for a discriminatory strike. Miller-El II, 545 U.S. at 241 (“If a prosecutor’s
proffered reason for striking a black panelist applies just as well to an otherwise-similar
nonblack who is permitted to serve, that is evidence tending to prove purposeful
discrimination at Batson’s third step.”); see Boyd v. Newland, 467 F.3d 1139 (9th Cir.
2006); Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006). Here, as pointed out by the court
of appeals, the prosecutor did not strike all the African-American jurors. This provides
further support to find that the prosecutor’s race-neutral explanations were not pretextual.
Petitioner has not rebutted the presumption of correctness that attached to the state
court findings that the prosecutor did not intentionally discriminate on the basis of race in
striking L. It was not objectively unreasonable for the state courts to find credible the
prosecutor’s explanation of his reasons for striking L. from the jury. Therefore, Petitioner
is not entitled to relief on Claim 4.
Claim 5
Whitehead alleges the trial court violated his Sixth and Fourteenth Amendment
rights to present a complete defense by denying his request to re-interview witnesses. The
Arizona Court of Appeals denied this claim:

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¶ 24 Under Rule 15.3(a)(2), Ariz. R. Crim. P., a trial court may order an
interview when “[a] party shows that the person’s testimony is material to
the case or necessary adequately to prepare a defense or investigate the
offense....” On appeal, Whitehead provides no evidence that the individuals
he wished to interview a second time would have provided testimony
necessary to prepare his defense or investigate the offense which could not
have been discovered during the original interview. He also fails to cite any
cases giving a defendant the right to have a second interview with a
witness. The trial court did not err in denying Whitehead’s motion.
See Conner, 215 Ariz. 553, ¶ 6, 161 P.3d at 600.
¶ 25 Whitehead specifically alleges a “Mendez–Rodriguez violation” and
relies on cases discussing United States v. Mendez–Rodriguez, 450 F.2d 1
(9th Cir.1971), in support of this argument. Mendez–Rodriguez concerned a
defendant’s opportunity to interview witnesses who had been deported,
which is not the case here. 450 F.2d at 2. Moreover, Mendez–Rodriguez has
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been abrogated such that even where witnesses have been deported, a
defendant must show their testimony would have been “both material and
favorable to the defense.” United States v. Valenzuela–Bernal, 458 U.S.
858, 873 (1982). Whitehead has failed to meet this standard, even if it
applies.
(Doc. 20, Ex. A at 12-13.)
To establish a violation of the Sixth and Fourteenth Amendment rights to
compulsory process and to present a complete defense based on restricted access to
witnesses, a defendant must demonstrate that those witnesses could provide evidence that
was “both material and favorable to the defense.” United States v. Valenzuela-Bernal,
458 U.S. 858, 873 (1982).16 Whitehead does not assert that he was denied access to
specific witnesses that possessed information favorable and material to his defense.
Therefore, the state court’s denial of this claim was not an unreasonable application of
the law and Whitehead is not entitled to relief.
Claim 6
Whitehead alleges his Sixth Amendment rights were violated by an unduly
suggestive in-court identification. Whitehead challenges the in-court identification of him
by Detective Baker, which he alleges occurred after the prosecutor showed the detective a
single photo of Whitehead. The Court of Appeals found this claim waived except for
fundamental error review, which the court found Whitehead did not establish. (Doc. 20,
Ex. A at 13.)
The Due Process Clause is implicated if police used an identification procedure
that was unnecessarily suggestive. See Neil v. Biggers, 409 U.S. 188, 201 (1972); Perry
v. Hampshire, 565 U.S. 228, 238-39 (2012). If so, the Court must evaluate whether the
improper procedure created a “substantial likelihood of misidentification.” Biggers, 409
U.S. at 201. In deciding if the identification is nevertheless reliable, the Court evaluates
the totality of circumstances, including:

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the opportunity of the witness to view the criminal at the time of the crime,
the witness’ degree of attention, the accuracy of the witness’ prior
description of the criminal, the level of certainty demonstrated by the
witness at the confrontation, and the length of time between the crime and
the confrontation.

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At trial, Detective Baker testified that he first observed the suspect from the
distance of a street’s width as they were looking at one another. (RT 11/12/08 at 54-55.)
The detective stated that he looked at the suspect for a few seconds as he drove by,
focusing on him and his clothes. (Id. at 57.) After following the suspect on the bike,
Detective Baker testified he was paying close attention to the individual when the person
pulled out a gun and faced the officers with it in his hand. (Id. at 65-66.) The detective
was certain the person with the gun was the same person he saw on the bicycle. (Id. at
67.) After numerous shots were fired, Detective Baker testified that he saw the same
person go over a wall. (Id. at 92.) After the suspect was shot, Detective Baker saw the
person’s face and testified he gave him his full attention and was 100% certain it was the
same person he had seen on the bike, with the gun, and going over the wall. (Id. at 9597.)
Detective Baker described the person as a light-skinned African-American male,
approximately 5’ 9”, with a thin to medium build. (Id. at 55.) The detective stated that the
suspect’s facial hair did not stand out to him, but he recalled there was some facial hair
and it was scruffy. (Id. at 56-57.) On cross-examination, Detective Baker stated that he
first noticed the facial hair after the suspect had been shot and detained. (Id. at 141-42.)
At trial, Detective Baker identified Whitehead as the person he saw on the bicycle after
the bank robbery. (Id. at 58.)
The detective noted that, at trial, the defendant had a defined beard, which was
different from his facial hair the day of the crime. (Id. at 99.) Subsequently, the
prosecutor showed Detective Baker a photograph of Whitehead taken the day of the
crime and the detective testified that was the person he saw on the day of the crime and

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that he had identified as the defendant at trial. (Id. at 110-11.) Detective Baker
acknowledged that the prosecutor had shown him the photo, a few days prior, in
preparation for trial. (Id. at 150.)
There is no question that the person on trial, Whitehead, was the person that was
shot and arrested at the scene of the crime. Detective Baker testified that he was certain
the person arrested that day was the same person he tracked on the bicycle and that he
saw with a gun and jumping over the walls in the neighborhood. That is the critical
identification testimony by the detective, which ties what he saw to the person on trial. In
light of these findings, the Court determines that Detective Baker’s identification of
Whitehead was not unduly suggestive (based on a pretrial viewing of the photograph).
This is particularly true because Detective Baker had been called to testify at a pretrial
hearing just two weeks prior to trial, at which time he had seen Whitehead in person. (RT
10/20/08.) Additionally, Detective Baker had a good opportunity to view the suspect
more than once, he was paying close attention when observing him, he gave a reasonably
accurate description of defendant, and he was certain in his identification. Therefore,
even if it was unduly suggestive for Detective Baker to view the photograph, his
identification was nonetheless reliable. The state court’s denial of this claim was not
objectively unreasonable.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, this Court
must issue or deny a certificate of appealability (COA) at the time it issues a final order
adverse to the applicant. A COA may issue only when the petitioner “has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
showing can be established by demonstrating that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner” or that the issues were “adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463

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U.S. 880, 893 & n.4 (1983)). The Court finds that reasonable jurists would not find this
Court’s merits rulings debatable. Therefore, a COA will not issue.
Accordingly,
IT IS ORDERED that the Petition for Writ of Habeas Corpus is DISMISSED.
IT IS FURTHER ORDERED that the Clerk of Court should enter judgment and
close this case.
IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules Governing
Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a
certificate of appealability.
Dated this 7th day of November, 2018.

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