John Bejarano vs. E.K. McDaniel, et al (DEATH PENALTY)

Filing 162

ORDER that Petitioner's Amended Petition for Writ of Habeas Corpus 106 is DENIED. A Certificate of Appealability is issued as to the following issues: (1) Whether this Court erred in denying Bejaranos request for an evidentiary hearing. (2) W hether Claim Two(A), alleging petitioners rights under the Sixth Amendment were violated as a result of trial counsels performance in the penalty phase of his trial, fails on the merits. Petitioners Motion for Reconsideration 158 is DENIED. Case terminated. Signed by Judge Philip M. Pro on 9/1/10. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

JOHN BEJARANO, Petitioner, vs. E.K. McDANIEL, et al., Respondents.

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2:98-CV-1016-PMP-RJJ ORDER

Before the Court for a decision on the merits is an application for a writ of habeas corpus filed by John Bejarano, a Nevada prisoner sentenced to death. Docket #106.1 I. PROCEDURAL HISTORY On March 2, 1987, Roland Wright, a cab driver, was found slain in Reno, Nevada. A few days later, Bejarano was arrested for prowling and carrying a concealed weapon after Reno police officers observed him peering into windows of parked cars in a hotel parking lot and adjacent alley. Based on an independent investigation and statements he made in police interviews following his arrest, Bejarano was charged with murdering Wright and related offenses. In March of 1988, a jury in Nevada's Second Judicial District Court found Bejarano guilty of murder in the first degree with

Docket #1 through #88 have not been imaged for the purposes of the CM/ECF, the court's electronic filing system. Starting at docket #89, however, all documents have been imaged and may be accessed electronically. For the filings that have been imaged (i.e, docket #89 and above), any citation to the record indicating a specific page number refers to the CM/ECF pagination.

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use of a deadly weapon, robbery with use of a deadly weapon, possession of a sawed-off rifle, possession of a stolen motor vehicle, carrying a concealed weapon, and being an ex-felon in possession of a firearm. In seeking the death penalty, the State advanced six aggravating circumstances: (1) Bejarano was under a sentence of imprisonment pursuant to NRS 200.033(1), i.e., probation from a 1985 misdemeanor conviction in Idaho for battery on a police officer; (2) he had a previous felony conviction involving the use or threat of violence pursuant to NRS 200.033(2), i.e., a 1979 conviction for aggravated assault in Idaho; (3) he had a previous felony conviction involving the use or threat of violence pursuant to NRS 200.033(2), i.e., a 1981 conviction for aggravated assault in Idaho; (4) the murder was committed during the commission of a robbery pursuant to NRS 200.033(4); (5) the murder was committed to avoid or prevent a lawful arrest pursuant to NRS 200.033(5); and (6) the murder was committed for the purpose of receiving money or any other thing of monetary value pursuant to NRS 200.033(6). After a penalty hearing, the jury found all six circumstances and imposed a sentence of death for the murder. Bejarano appealed. On December 22, 1988, the Nevada Supreme Court entered an order dismissing the appeal. On February 21, 1989, with assistance of counsel, Bejarano filed a petition for postconviction relief in the Second Judicial District Court. The district court held an evidentiary hearing on the petition in August of 1989. On September 5, 1989, the state district court entered its order denying relief. Bejarano appealed. On December 7, 1990, the Nevada Supreme Court affirmed the lower court's decision. On August 8, 1991, this Court received Bejarano's pro se petition for writ of habeas corpus, which was assigned case number CV-S-91-574-PMP(LRL). Bejarano was provided court-appointed counsel and permitted to conduct discovery. On October 16, 1992, he filed an amended petition for writ of habeas corpus and a motion to stay proceedings to allow for state court exhaustion of his claims. On December 23, 1992, the Court dismissed Bejarano's admittedly-unexhausted petition without prejudice.

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On December 29, 1992, Bejarano filed a petition for writ of habeas corpus in Nevada's Seventh Judicial District Court. On January 24, 1994, the state district court dismissed the petition, finding that all but one of the 35 claims in the petition were procedurally barred under Nevada law and that the remaining claim lacked merit. After his motion for reconsideration was denied, Bejarano appealed. On December 20, 1996, the Nevada Supreme Court affirmed the lower court's decision. On February 26, 1998, the court denied Bejarano's petition for rehearing. On July 13, 1998, this Court received the petition for writ of habeas corpus that initiated the instant action. On August 31, 1998, the Court entered an order granting Bejarano's motion to proceed in forma pauperis, directing the clerk to file the petition, and appointing counsel for Bejarano. On June 1, 1999, the respondents filed a motion to dismiss the petition on various procedural grounds. On June 16, 2003, having determined that the petition contained unexhausted claims, the court granted Bejarano's motion for stay to allow him to exhaust those claims.2 On September 2, 2003, Bejarano filed a petition for writ of habeas corpus in the Second Judicial District Court for Nevada. On October 7, 2004, the state district court entered an order concluding that the petition was barred as untimely. Bejarano appealed. On November 16, 2006, the Nevada Supreme Court filed an opinion in which it upheld the lower court's denial of the petition, but also applied to Bejarano's case the newly-announced rule in McConnell v. State, 102 P.3d 606 (Nev. 2004).3 Bejarano v. State, 146 P.3d 265 (Nev. 2006). The court upheld Bejarano's death sentence after concluding that, even without the invalid aggravating circumstances,4 the jury would still have rendered a death verdict. Bejarano, 146 P.3d at 277. On December 22, 2006, the

With his motion to stay, Bejarano filed an amended petition that, but for the omission of claims determined by the court to be unexhausted, is identical to his initial petition. Docket ##77/78. In McConnell, the Nevada Supreme Court ruled that it is "impermissible under the United States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution on the felony upon which a felony murder is predicated." McConnell, 102 P.3d at 624. Under McConnell, the court invalidated two of the six aggravating circumstances supporting Bejarano's death sentence: the robbery felony aggravator and the receiving-money aggravator. Id. at 275. 3

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court denied Bejarano's petition for rehearing. On March 2, 2007, this Court granted Bejarano's motion to reopen these proceedings. On May 17, 2007, he filed his amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from a state court conviction and death sentence. Docket #106.5 On January 16, 2008, respondents filed a motion to dismiss, contending that several claims in the petition are either unexhausted (and therefore subject to dismissal pursuant to Fed. R. Civ. P. 41(b)), time-barred, or barred by the doctrine of procedural default. Docket #114. Pursuant to that motion, this court dismissed several claims from the amended petition on procedural grounds, and directed Bejarano to abandon two unexhausted claims to avoid dismissal of the petition under Rose v. Lundy, 455 U.S. 509 (1982). Docket #136. The claims that remain ­ Claims One, Two(A), Eleven, and Fourteen ­ are the subject of this decision on the merits. II. STANDARDS OF REVIEW To obtain habeas relief under 28 U.S.C § 2254, a petitioner must establish that "he is in custody in violation of the Constitution or laws or treaties of the United States." Because this habeas action was initiated after April 24, 1996, the amendments to 28 U.S.C. § 2254 under the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. See Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003). The provisions of AEDPA substantially limit the federal court's ability to grant habeas relief where the state court has already considered and ruled upon the merits of a claim. See Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997) (noting "highly deferential standard for evaluating state court rulings" imposed by 28 U.S.C. § 2254(d)). For various reasons, however, none of Bejarano's remaining claims, as alleged in his

Because of the amended petition filed with Bjearano's earlier motion to stay, the petition filed on May 17, 2007, is actually Bejarano's second amended petition herein. Perhaps as an oversight or because the earlier-filed amended petition was merely a procedural formality, Bejarano entitled the latter petition "Amended Petition for Writ of Habeas Corpus." Accordingly, any reference to the "amended petition" herein refers to the pleading filed May 17, 2007, i.e., the petition currently pending before the court. 4

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pending petition, were adjudicated on the merits in state court. As such, this Court is not constrained by § 2254(d) in determining whether Bejarano shall be granted habeas relief based on any of those claims. Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005). Consequently, the review of the claims here shall be de novo. Id. In such instances, however, the provisions of 28 U.S.C. § 2254(e) still apply. Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002) (stating that state court findings of fact are presumed correct under § 2254(e)(1) even if legal review is de novo). III. EVIDENTIARY HEARING Concluding that Bejarano had not exercised sufficient diligence in developing the factual basis for his claims in state court, this court entered, on March 15, 2010, an order denying Bejarano's motion for an evidentiary hearing. Docket #157. He has since filed a motion for reconsideration of that decision. Docket #158. With that motion, Bejarano reiterates, with only minor modifications, many of the same the arguments he raised with his initial motion. The Court remains unconvinced that those arguments establish that Bejarano is entitled to an evidentiary hearing. Bejarano also asks the Court to reconsider its decision in light of the court of appeals' decision in Schad v. Ryan, 595 F.3d 907 (9th Cir. 2010), which was issued after briefing concluded on the initial motion and has since been amended and superseded on denial of rehearing en banc by Schad v. Ryan, 606 F.3d 1022 (9th Cir. 2010). As in this case, the petitioner in Schad sought an evidentiary hearing to develop the factual basis of a claim that his counsel was ineffective in the penalty phase of his trial for failing to investigate and to present mitigating evidence. 606 F.3d at 1042. The court reversed the district court's determination that the petitioner was not entitled to an evidentiary hearing because he was not diligent in attempting to develop evidence during his state habeas proceedings. 606 F.3d at 1043-44. According to the court in Schad, the lower court erred because it "focused not on the reasonableness of Schad's efforts in state court to develop mitigating evidence regarding his childhood, but on the fact that he did not succeed in doing so." Id. at 1043. Accordingly, the court

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remanded the matter to the district court for further inquiry into whether "Schad's efforts to develop the record in state court were reasonable." Id. at 1044. Bejarano contends that, like the petitioner in Schad, he confronted obstacles in developing evidence in support of his ineffective assistance claim in state court and, therefore, he too is entitled to an evidentiary hearing to show that he exercised sufficient diligence. Neither of the obstacles Bejarano points to, however, excuses his failure to develop the factual basis of his ineffective assistance claim. As one of the claimed impediments, Bejarano asserts that his first post-conviction counsel had only twenty days to review the relevant materials and conduct an investigation. Docket #158, p. 8-9. While it is true that the state court gave Bejarano's counsel less than a month to file a post-conviction petition, the evidentiary hearing on the petition was not held for another six months after the petition was filed. In light of his own allegations as to the ready availability of mitigation evidence (including a "treasure trove of mitigation records sitting in trial counsel's files") (see docket #106, pp. 30, 47, 88; docket #146, p. 26-27), Bejarano has not explained why counsel was unable to assemble and present virtually any such evidence at the evidentiary hearing. As for the other obstacle, Bejarano continues to contend that he was prevented from developing the facts in support of his ineffective assistance claim because his trial counsel was not truthful in testifying at the state post-conviction evidentiary hearing about various aspects of his (counsel's) penalty phase performance. Bejarano has not shown, however, how counsel's alleged misrepresentations thwarted his efforts to assemble the relevant evidence prior to the hearing and present it at the hearing. The whole point of the hearing was for Bejarano to substantiate his claims with testimony from witnesses, along with any documentary or physical evidence he might want to present. To the extent that his trial counsel may have misrepresented facts in his testimony, Bejarano's opportunity to impeach that testimony or present opposing evidence was at the hearing itself. Again concluding that Bejarano was not diligent in developing his claims in state court, the

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court denies his motion to reconsider its decision to not hold an evidentiary hearing. IV. ANALYSIS OF CLAIMS Claim One In Claim One, Bejarano claims that his death sentence is invalid under the Fifth, Sixth, Eighth, and Fourteenth Amendments because of the manner in which the Nevada Supreme Court "re-weighed" the evidence and "re-sentenced" him after invalidating two aggravating circumstances in his case and because the court conducted a constitutionally-inadequate harmless error analysis. In a weighing state like Nevada, there is Eighth Amendment error (i.e., a lack of an individualized sentencing determination) "when the sentencer weighs an `invalid' aggravating circumstance in reaching the ultimate decision to impose a death sentence." Sochor v. Florida, 504 U.S. 527, 532 (1992). As a general matter, when an aggravating circumstance is invalidated, a reviewing court may, short of remanding for re-sentencing, either re-weigh the mitigating evidence against the remaining aggravating factors or determine whether the sentencer's consideration of the invalid factor or factors was harmless error. Clemons v. Mississippi, 494 U.S. 738, 741 (1990). According to Bejarano, the Nevada Supreme Court did not conform to either approach in reviewing his death sentence and, in any case, failed to engage in the close appellate scrutiny required by Clemons and its progeny. As noted above, the Nevada Supreme Court in Bejarano's third and final state post-conviction proceeding concluded that two aggravating circumstances found by the jury at his trial were invalid under McConnell v. State, 102 P.3d 606 (Nev. 2004). Though the McConnell decision was issued more than a decade after Bejarano's conviction and sentence had become final, the state supreme court held that the new rule McConnell announced applied retroactively to Bejarano's case. Bejarano, 146 P.3d at 274. The state supreme court's analysis of both the retroactivity and the application of the McConnell rule in Bejarano's case was complicated by the fact that the court addressed both issues within the context of determining whether Bejarano could show prejudice as a result of the imposition of state procedural bars to his McConnell-based claim. Id. at 270-71.

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Ultimately, however, the Nevada Supreme Court framed the dispositive issue as whether it was "clear beyond a reasonable doubt that absent the invalid aggravators the jury still would have imposed a sentence of death." Id. at 276. In answering that question in the affirmative, the court listed the four aggravating circumstances that remained, then discussed the mitigating evidence that trial counsel presented on Bejarano's behalf at the penalty hearing. Id. The court then reasoned that, in striking the two invalid aggravating circumstances, the court was effectively eliminating the weight of only one because both were based on the same facts. Id. The court noted that "numerous witnesses" testified about Bejarano's propensity for violence, which included threats that "he would kill again if given the opportunity," and recounted Bejarano's own testimony, which the court found to be the "most damning testimony during the penalty hearing." Id. at 276-77. The court summarized its conclusions as follows: The murder of Roland Wright was senseless, and Bejarano's own testimony during the penalty hearing was defiant and unremorseful. He not only had a significant criminal history, he repeatedly threatened to commit future acts of violence and kill others. It is clear beyond a reasonable doubt that absent the invalid aggravators the jury would have still sentenced Bejarano to death. Bejarano is therefore not entitled to any post-conviction relief. Id. at 277. Thus, the Nevada Supreme Court found that the error was harmless beyond a reasonable doubt as required by Clemons, 494 U.S. at 753. Although the court referred to its analysis, in some places, as a "reweighing," the state courts are not held to "a particular formulaic indication" in order for their harmless error review to pass federal scrutiny. Sochor v. Florida, 504 U.S. 527, 540 (1992). See also Beardslee v. Brown, 393 F.3d 1032, 1039 (9th Cir. 2004). Here, the Nevada Supreme Court's "plain statement" that the Bejarano's death sentence survives harmless federal error enquiry, together with a well-reasoned explanation for arriving at that conclusion, suffices to cure the jury's consideration of the invalid aggravating circumstances. Id. Bejarano argues, however, that the Nevada Supreme Court's review was flawed because it considered only the mitigation evidence presented at his penalty hearing and overlooked the

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mitigation evidence presented in his post-conviction proceedings. According to Bejarano, the Nevada Supreme Court was required to consider, irrespective of whether it was conducting an independent reweighing of the evidence or a harmless error analysis, all the mitigation evidence proffered in his three state post conviction proceedings. While respondents appear to concede this point as to evidence properly presented in a post-conviction evidentiary hearing (docket #141, p. 60), this court is not convinced that a state appellate court's harmless error analysis must factor in evidence that was not available to the jury when it rendered sentence. Indeed, the harmless error analysis is an assessment of the impact that the invalid aggravating factors had on the jury's sentencing decision at trial. See Clemons, 494 U.S. at 753-54. No controlling case dictates that the state appellate court's harmless error analysis must, in order to pass federal scrutiny, factor in the potential effect of evidence presented in post-conviction proceedings. The cases cited by Bejarano (Parker v. Dugger, 498 U.S. 308 (1990); Richmond v. Lewis, 506 U.S. 40 (1992); Styers v. Schriro, 547 F.3d 1026 (9th Cir 2008)) to support a contrary position are not availing. In Parker, the Court reversed the defendant's death sentence based on its conclusion that the state supreme court, after invalidating two of the trial court's aggravating factors, had incorrectly determined that the trial court found no mitigating circumstances in sentencing the defendant to death. 498 U.S. at 318. In doing so, the state supreme court failed to follow the required procedure of either reweighing aggravating and mitigating factors or applying harmless error analysis. Id. at 321-22. There is nothing in the opinion to suggest, even remotely, that the state appellate court must consider evidence presented in post-conviction proceedings when conducting a harmless error analysis. Likewise, in Richmond, the Court suggested that the state appellate court erred by not considering "evidence in mitigation" in its review of the petitioner's sentence (506 U.S. at 49), but the evidence to which the Court was referring was presented at a resentencing hearing, not a postconviction proceeding (id. at 43-44). In Styers, the Ninth Circuit found error in the Arizona Supreme Court's failure to consider

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"all relevant mitigating evidence" in its review of the propriety of the petitioner's death sentence. 547 F.3d at 1035. The mitigating evidence at issue, however, was apparently presented in the petitioner's initial criminal proceeding. See State v. Styers, 865 P.2d 765, 777 (Ariz. 1993). The problem, according to the Ninth Circuit, was that Arizona Supreme Court applied a nexus (to the crime) test to exclude the evidence. Styers, 547 F.3d at 1035. Thus, Styers provides no support for Bejarano's argument that the Nevada Supreme Court was required to include evidence beyond that presented at trial in determining whether the McConnell error was harmless. As a separate ground for asserting that the Nevada Supreme Court violated his constitutional rights by not considering post-conviction mitigating evidence, Bejarano claims that the court treated him differently than the similarly-situated petitioner in State v. Haberstroh, 69 P.3d 676 (Nev. 2003), thereby depriving him of his federal right to equal protection of the law. In Haberstroh, the lower court had vacated the petitioner's death sentence based on its conclusion that the penalty-phase jury instruction on the depravity of mind aggravator had been unconstitutional. 69 P.3d at 179. In affirming that decision, a majority of the Nevada Supreme Court noted that the prosecutor had emphasized that particular circumstance in closing argument and that the jury had not heard mitigating evidence that Haberstroh "would now offer in mitigation." Id. at 184. Three dissenting justices opined, however, that Haberstroh's "belated offer of [mitigating] evidence is of no consequence to the decision before this court." Id. at 191. In Myers v. Ylst, 897 F.2d 417 (9th Cir.1990), the Ninth Circuit reversed the denial of habeas relief to a state prisoner on the ground that the state supreme court had violated the Equal Protection Clause by denying him the retroactive benefit of a new rule of state law, while granting such benefit to another prisoner, though the cases of both were pending on direct review when the new rule was announced. The court held that "once [a state court] has established a rule it must apply it with an even hand." 897 F.3d at 421 (citation and internal quotation marks omitted). "The equal protection clause prohibits a state from affording one person ... the ... benefit of a ruling ... while denying it to another." Id.

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Here, any inconsistency between the Nevada Supreme Court's treatment of Haberstroh and its treatment of Bejarano does not rise to the level of a constitutional violation warranting habeas relief. Issuing the decisions six years apart, the court in Haberstroh stood divided, as evenly as possible, on the relevant legal issue, while the court in Bejarano did not even address the issue (at least not explicitly). As a fundamental matter of federalism, a state appellate court must retain the discretion to apply state law without concern that a deviation from prior precedent will be ruled a constitutional violation by the federal court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (reemphasizing "that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"). Next, Bejarano argues the Nevada Supreme Court's review was constitutionally flawed because the court failed to consider the prejudicial effect of duplicitous aggravating circumstances under state law and also because it failed to provide close appellate scrutiny of the issue of eligibility for the death penalty. With regard to the former, Bejarano argues that under Nevada law, as promulgated by the Nevada Supreme Court, each additional aggravating circumstance adds prejudicial weight to the sentencing calculus. Here again, Bejarano is asking this Court to act beyond its purview by granting habeas relief based on an arguable inconsistency in the Nevada Supreme Court's application of its own law. As for the state supreme court's purported failure to closely scrutinize the issue of death penalty eligibility, Nevada law requires two things before a defendant is eligible for death: the jury must find unanimously and beyond a reasonable doubt that at least one enumerated aggravating circumstance exists, and each juror must individually consider the mitigating evidence and determine that any mitigating circumstances do not outweigh the aggravating. Hollaway v. State, 6 P.3d 987, 996 (Nev. 2000). Bejarano contends that, "[a]t best, the Nevada Supreme Court's opinion in [his] case explains why the jury may have selected the death penalty, but it entirely fails to discuss whether the jury would have found him eligible for the death penalty." Docket #146, p. 15. Bejarano's contention is simply not accurate. After listing the four aggravating

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circumstances that remained, then discussing the mitigating evidence that trial counsel presented on Bejarano's behalf at the penalty hearing, the Nevada Supreme Court stated: . . . Reweighing [the four remaining aggravating circumstances] against the mitigating evidence, we conclude beyond a reasonable doubt that absent the invalid aggravators the jurors would have still found Bejarano death eligible. . . . Bejarano, 146 P.3d at 276. Next, the court stated that it further concluded that the jury would have returned a sentence of death, then discussed at length its reasons for reaching that conclusion. Id. at 276-77. Thus, the state supreme court did not bypass, as Bejarano claims, the eligibility inquiry. Again, "a particular formulaic indication" by the state court is less important, for the sake of federal scrutiny, than a showing that the court consciously undertook an analysis of whether the error was harmless. Beardslee, 393 F.3d at 1039. Bejarano also argues that the Nevada Supreme Court's "resentencing" after invalidating the two aggravating circumstances violated his right to a jury trial and to due process of law under the holding in Ring v. Arizona, 536 U.S. 584, 604-08 (2002). The Court in Ring took care to clarify, however, that the Arizona Supreme Court's authority to conduct the review called for by Clemons was not at issue in the case. 536 U.S. at 597 n 4. Thus, there is no merit to Bejarano's Ring-based argument. Finally, even assuming the Nevada Supreme Court's review of Bejarano's sentence was constitutionally-flawed, this Court must apply its own harmless-error analysis before granting habeas relief. Beardslee, 393 F.3d at 1041. That is, it must "determine whether the Eighth Amendment error had a substantial and injurious effect or influence on the jury's verdict." Id. (quotation and citation omitted). As noted, the Nevada Supreme Court invalidated the robbery felony aggravator and the receiving-money aggravator. Bejarano, 146 P.3d at 275. Thus, the question is whether the jury's consideration of those two aggravating circumstances had a substantial and injurious effect on its decision to impose the death penalty. A review of the penalty phase transcript indicates that neither of the invalid aggravating circumstances was a particularly significant part of the prosecutor's penalty phase case. Docket

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#141-28 and 141-29. In fact, the receiving-money aggravator was not even specifically mentioned in the prosecutor's argument. Id. The prosecutor briefly discussed the robbery felony aggravator, but did not emphasize it more than any other aggravating circumstance. Docket #141-29, p. 9. Instead, the prosecutor focused on the absence of any mitigating circumstances and Bejarano's potential for future dangerousness. Id.; p. 6-7, 10-14. As for the State's penalty phase witnesses, all four of them testified, almost exclusively, to matters relating to Bejarano's expressed willingness to kill people and various death threats he had made while in jail awaiting trial. Docket #141-28, p. 10-31. During his testimony as the only penalty phase witness for the defense, Bejarano professed apathy as to his forthcoming sentence while warning the jury that they "better pray to God that I don't get out." Id., p. 39-40. He also mentioned that he had done "other things" for which he would be "executed five times" if the jury knew about them. Id., p. 41. He subsequently stated that he had "no conscience to clear," and concluded his testimony by telling the jury that they were "sicker than I am when you sit back and giggle. . . ." Id., p. 45; docket #141-29, p. 3. In sum, nothing in the trial court record suggests that the invalid aggravating circumstances could have had more than a minimal impact on the jury's decision to impose the death penalty. Cf. Beardslee, 393 F.3d at 1044 ( finding harmless error where it was "not possible to conclude that the [invalid] circumstance . . . was a substantial factor in the jury's decision to impose the death penalty"). No evidence was presented to support those aggravators (in either the guilt or penalty phase) that would not have been presented anyway. And, the State's penalty phase presentation would not have been materially different if they (the invalid aggravators) had been removed from consideration. Accordingly, Bejarano is not entitled to habeas relief based on Claim One. Claim Two(A) In Claim Two(A), Bejarano claims that death sentence is invalid under the Fifth, Sixth, Eighth, and Fourteenth Amendments because his trial counsel was ineffective in investigating and presenting a case for mitigation in the penalty phase of his trial. He contends that his counsel's

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performance was defective in several respects. He alleges that counsel "abandoned" him in the penalty phase of his trial and misled the trial court, his first post-conviction counsel, and the state habeas court about his (counsel's) efforts to prepare for that phase of the case. He also alleges that his counsel unreasonably failed to make use of his juvenile records, psychological evaluations, drug treatment records, and incarceration records, by not providing them to mental health experts for the purpose of developing testimony, presenting them as evidence, and referring to them in closing argument at his sentencing hearing. In addition, Bejarano faults counsel for failing to contact, interview, or present the testimony of various individuals who purportedly would have provided favorable evidence at the sentencing hearing. Finally, Bejarano claims that his counsel was ineffective in having Bejarano testify at the sentencing hearing and in presenting a closing argument. Bejarano was represented at trial by Michael Specchio, who substituted for Robert Wieland as Bejarano's counsel. Wieland had represented Bejarano from the outset of the case until October of 1987, when the trial court granted his motion to withdraw based on supposed threats from Bejarano. Apparently due to Wieland's inexperience with capital murder cases, a more seasoned attorney, Lawrence Wishart, was added as second counsel soon after Bejarano's preliminary hearing. Wishart withdrew as counsel when Wieland did. The parties herein do not dispute that Wieland and Wishart made a substantial effort to assemble mitigating evidence on Bejarano's behalf. Docket #146, p. 29. Specifically, they contacted several witnesses who knew Bejarano and purportedly had favorable things to say about him, conducted discovery to obtain records that "included extensive intelligence testing and psychological data from [Bejarano's] childhood," and retained a psychologist (Chuck Dickson, Ph.D) who interviewed Bejarano several times and reviewed his juvenile records. Id., p. 29-30. According to Bejarano, however, Specchio failed to follow up on compelling mitigation leads that Wieland and Wishart had uncovered or otherwise develop a case for mitigation. Bejarano also claims that a hearing conducted by the trial court caused Specchio to abandon

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him as a client. While the jury was deliberating its guilt phase verdict, the trial court judge held an ex parte, in camera hearing for the stated purpose of creating a sealed record as to Specchio's efforts on Bejarano's behalf, reasons for any tactical decision made during trial, and any comments Bejarano may want to make on the matter. Docket #141-25, p. 46, and 141-26, p. 2.6 Bejarano claims that the hearing placed Specchio and Bejarano in adversarial positions and that Specchio abdicated his duty of loyalty to Bejarano in order to defend against allegations of ineffective assistance of counsel. At Bejarano's penalty hearing, Specchio presented the following exhibits: a selection of Bejarano's juvenile welfare records, his GED test results, and his discharge from the military. Docket #141-31. As noted, he called no witnesses other than Bejarano for the defense. During his closing argument, he asked the jury to review the juvenile welfare records, commenting on them as follows: . . . [The exhibit] starts with a history of a young man named Johnny Bejarano, who was born May 9th, 1961, who was the son of two Mexican immigrants, whose mother died at the age of 3, whose father died at the age of 6, and he bounced around from welfare and foster home to foster home until he was placed in the Hannah [sic] Boys Center where he eventually ran away and began getting in trouble. ... You'll see that he's been tested, that his intelligent [sic] quotient is on the borderline range, that he has limited faculties. Some of you were able to garner that from his testimony, but you only got to listen to him in moments of bravado. . . . Docket #141-29, p. 15-16. With the remainder of his brief closing argument, Specchio suggested that Bejarano's bravado should not be mistaken for actual dangerousness, asserted that the nature of the crime did not warrant the death penalty, and made a general plea to spare his client's life. Id., p. 15-19. As an initial matter, this Court rejects Bejarano's argument that the ex parte hearing created an actual conflict of interest warranting habeas relief under Mickens v. Taylor, 535 U.S. 162 (2002) and United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996). Docket #146, p. 31-33. In Mickens,

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According to the trial judge, such hearings were his practice in "serious cases." Id. 15

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the Court clarified that, to obtain relief based on an alleged conflict of interest, the petitioner must establish an actual conflict that adversely affected counsel's performance. 535 U.S. at 171 ("[A]n actual conflict of interest [means] precisely a conflict that affected counsel's performance--as opposed to a mere theoretical division of loyalties."). Del Muro involved circumstances that manifested an obvious and concrete conflict between counsel and client, viz., counsel was compelled by the court to prove his own ineffectiveness at an evidentiary hearing. 87 F.3d at 1080. Here, on the other hand, Bejarano appears to be claiming that counsel refrained from producing mitigation witnesses and discounted the value their potential testimony in order to conceal the fact that he had not conducted an adequate mitigation investigation. Because this purported conflict is entirely theoretical, it does not provide a basis for habeas relief. As for Bejarano's remaining allegations, challenges to particular aspects of counsel's performance are governed by the Strickland standard. See Bell v. Cone, 535 U.S. 685, 697-98 (2002) (referring to Strickland v. Washington, 466 U.S. 668 (1984)). Under Strickland, a petitioner must satisfy two prongs to obtain habeas relief: deficient performance and prejudice. 466 U.S. at 687. With respect to the performance prong, a petitioner must carry the burden of demonstrating that his counsel's performance was so deficient that it fell below an "objective standard of reasonableness." Id. at 688. A reviewing court "must indulge a `strong presumption' that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell, 535 U.S. at 702 (quoting Strickland, 466 U.S. at 689). With respect to the prejudice prong, the court must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent [counsel's] errors. Strickland, 466 U.S. at 696. Put another way, a habeas petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The Court in Strickland emphasized that the ultimate focus of an ineffective assistance of

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counsel inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Id. If the defendant makes an insufficient showing as to either one of the two Strickland components, the reviewing court need not address the other component. Id. at 697. . . . In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. . . . Id. With these standards in mind, the court now turns to Bejarano's ineffective assistance claims. The mitigating evidence that Bejarano points to as that which effective counsel would have presented falls, for the most part, into three categories: (1) juvenile records, (2) his mental health background, and (3) information from acquaintances, relatives, and other people who knew him. The juvenile records indicate the following.7 His mother having died when he was three years old, Bejarano was placed in foster care when he was five as a result of an incident in which his father left him, his seven year old brother, and his four year old sister unattended and they set fire to the family home. Apparently either unwilling or unable to provide a suitable living arrangement, Bejarano's father, who was alcoholic, never regained custody of the children, each of whom had been placed with a different family.8 Bejarano was placed in several different homes and, around age eleven, began running away and committing minor criminal offenses. At age twelve he was committed to the Hanna Boys Center. Shortly after being placed there, he ran away from the center, but was caught after being hit by a car and hospitalized. He spent seven weeks in the hospital, then returned to the center, where

7 8

These records are located at Docket #106-1, p. 141-500.

Contrary to counsel Specchio's closing argument in the penalty phase, Bejarano's father did not die when Bejarano was six years old. According to various sources in the record, he died in 1989. Nonetheless, he apparently had only minimal contact with Bejarano after the children were placed in foster care. 17

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he stayed until running away again a few months shy of his fourteenth birthday. In a report to the juvenile court, his probation officer at the time described Bejarano as "very shy and quiet," but also "very frightened and angry" and "unable to deal with these feelings." Docket #106-1, p. 383. The juvenile court ordered that Bejarano be moved to the Moreno Boys Home, where he stayed for about a year and half, then moved to the Deseret Center when Moreno was scheduled to close. Bejarano apparently adjusted well at Moreno, doing relatively well socially and academically, but had a difficult time at Deseret. After getting caught stealing a motorcycle, then running away from Deseret, he was moved yet again, this time to the Cortland Group Home. When he ran away from that home just prior to turning eighteen, he was placed in the Job Corps Program, where he reportedly did well until going AWOL. Docket #106-1, p. 501-517. Having spent his entire life in California, Bejarano then enlisted in the Marine Corps in Boise, Idaho. Id., p. 518-588. Within a month or so of enlisting, Bejarano was discharged (honorably) as a result of his prior felony offense, for which he had not received the necessary waiver. Id. Shortly thereafter, he was arrested and convicted of aggravated assault stemming from an incident in which, after drinking for several hours, he entered the home of a man and threatened him with a gun. Id., p. 589-638. After spending approximately a year in prison, Bejarano was paroled with one condition being that he enter an alcohol treatment center. Id. He completed the treatment program, but within a very short time (approximately a month) he was arrested after passing out in a stranger's car in a parking lot, then threatening a man with a knife when the man pulled him out of the car. Id., p. 639-790. Again convicted of aggravated assault, Bejarano went back to prison for approximately two years. Id. After his release, Bejarano remained in Idaho and apparently did well for a couple of years, maintaining employment and developing friendships. Then, on March 4, 1986, he was arrested and charged with four misdemeanors (battery, resisting an officer, battery on a law enforcement officer, and malicious injury to property) in relation to an incident that began with unruly behavior in a bar and culminated with Bejarano kicking out the window of a patrol car. Id., p. 791-809. Bejarano

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plead guilty to the battery on a law enforcement officer in exchange for the other charges being dismissed. Id. Shortly thereafter, Bejarano moved to Reno, where he spent less than a year (committing several minor offenses) before murdering Wright. Id., p. 810-839. As for his mental health background, Bejarano relies primarily on the assessments of three experts ­ Jerry Howle, M.D. (psychiatrist), Earl S. Nielsen, Ph.D (psychologist), and Lewis M. Etcoff, Ph.D (psychologist). Howle and Nielsen testified at the evidentiary hearing held in relation to Bejarano's first state post-conviction petition. Docket #124, exhibit 1. Etcoff was retained by Bejarano's counsel to assist with his initial federal habeas application. In his testimony, Howle opined that Bejarano had a "moderate to severe personality disorder, with features of paranoid personality, antisocial personality, and narcissistic personality." Docket #124-1, p. 32. In his written report,9 Howle supplemented that impression with the following statement: Although he admits to hallucinations and at times is probably on the verge of paranoia, his condition has never reached the level where he required hospitalization for treatment suggesting that he has never been flagrantly psychotic. He does have a history of alcohol and drug abuse which can certainly impair mental functioning. At the present time he continues to function as though he suffers from a personality disorder rather than a gross psychosis. Docket #124-1, p. 127. Howle concluded his report by noting that Bejarano's disorder interfered, at times, with "his ability to do what is best for him" and also "led him to engage in inappropriate behavior." Id. Nielsen testified as to the results of several tests he conducted on Bejarano. According to Nielsen's testimony, the results showed that Bejarano's reading comprehension was at a sixth grade level, his full scale IQ was 82, and that his profile was consistent with a diagnosis of antisocial personality disorder. Id., p. 8-10. In describing the results of a particular personality test (Clinical

9

The written reports of both Howle and Nielsen were admitted as evidence at the hearing. Howle's report appears multiple times in the record before this court (docket #106-1, p. 835 and p. 914, and docket#124-1, p. 124). Nielsen's report appears as an exhibit attached to respondents' answer. Docket #141-30. 19

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Analysis Questionnaire), Nielsen testified as follows: On the first portion that I described, the 16 personal factors, Mr. Bejarano scores very high on the factor of psychopathic deviation. Other significant scores are high degree of suspicion, a less high but still slightly elevated score is the feeling of competence. Belief in his own actions as being right, untroubled by guilt, little conscious [sic] development. What would be called a very low grade depression and agitated depression but very, very mild. And some degree of hypochondriasis, although it's very, very mild and it's not really in a range that should be referred to as significant. Id., p. 11. He listed poor impulse control, general disregard for the rights and values of other people, difficulty relating to other people, and difficulty forming interpersonal relationships as additional attributes of Bejarano's disorder and cited early childhood abuse and deprivation as the likely source of Bejarano's impairments. Id., p. 13-15. He also opined that Bejarano's antagonistic and confrontational attitude was the product of having been socialized in an institutional setting. Id., p. 19-21. In his written report, Nielsen noted Bejarano's "extensive history of alcohol and drug abuse." Docket #141-30, p. 3. Among Nielsen's conclusions are the following: Mr. Bejarano's childhood was marked by deprivation, neglect, and the early trauma of being separated from his family. Although his early history certainly influenced the character we see today, he is nonetheless capable of asserting control over his own behavior to a much greater degree than he chooses to impose upon himself. Mr. Bejarano's cognitive capacity, while in the "below normal" range, is well within the range generally accepted as sufficient for cognitive competence. He is certainly not mentally retarded. ... Mr. Bejarano presents no features of psychosis, thought disorder, severe affective disorder, or organic impairment. His memory is good, he denies hallucinations or delusions, and his suspicious nature is insufficient to be judged paranoid in quality. Id., p. 5.

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Dr. Etcoff compiled a lengthy report in October 1992 after purportedly reviewing various records from Bejarano's background and spending several hours with him, during which he interviewed him and administered numerous tests. Docket #106-1, p. 967-1004. Test results placed Bejarano at average to borderline intellectual functioning in several areas, with language skills appearing to be the most impaired. Among Etcoff's conclusions are the following: Several events in Mr. Bejarano's childhood set the stage for his subsequent criminal behaviors. First of all, Mr. Bejarano essentially never bonded with a parent figure. His mother died when he was three years of age and he never had the opportunity to ever have a mother figure in his life. It is impossible to say, of course, what type of mother Mr. Bejarano's mother had been until she died of cancer when Mr. Bejarano was only three years of age. Mr. Bejarano's father was, by dint of his third grade education, his alcohol use and his own personality characteristics, unable or unwilling to care for Mr. Bejarano as a child necessitating that Mr. Bejarano be placed in foster care during his elementary school years. The effect upon Mr. Bejarano as a child of having been abandoned to the State by his remaining parent was tremendous, to say the least. Mr. Bejarano, who had been the victim of physical abuse by his father, felt inadequate and unworthy and undoubtedly blamed himself for having been placed in foster homes. To this day, Mr. Bejarano believes that he may have been the one to set the house on fire, thereby causing his foster home placement. Enormous guilt became a part of Mr. Bejarano's personality structure as he felt at least partially responsible for a dissolution of his family. As each of his foster placements did not work out, Mr. Bejarano learned that he must harden himself to protect himself against feelings of loss and abandonment. He, therefore, became increasingly avoidant of close human interactions as a defensive means to protect himself from allowing closeness between himself and another adult to develop. Each and every time Mr. Bejarano attempted to reunite with his father, his father made it known to him that he didn't think he was capable of caring for him, or perhaps even didn't want to care for Mr. Bejarano which only made Mr. Bejarano feel angrier and angrier that no one in his life seemed to care about him. His anger was noted in each and every one of the reports made available to me by all of the different professionals who evaluated Mr. Bejarano as a youth. ... If Mr. Bejarano's family situation wasn't sad enough, he also had very substantial neurologically based learning disabilities which also caused him to be unable to reason and use judgment due to his lack of verbal facility which impeded his abilities as a child, adolescent, and adult from thinking through stressful situations in a successful manner. His learning disabilities in receptive and expressive language, spelling, arithmetic, and reading caused him to fail in school which only made him feel less worthy, more powerless, and more unintelligent, all of which served to increase his internalized state of anger. Id., p. 994-996.

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As for mitigation witnesses who could have allegedly provided favorable testimony at his penalty hearing, Bejarano lists his juvenile probation officer, a caseworker at the Hanna Boys Center, his siblings, an elderly woman he worked for in Idaho, an employee of a rescue mission who allowed Bejarano to stay with his family in Idaho, and two reverends who could verify Bejarano's attendance at church services. According to her declaration, the probation officer, Vonnie Franks, worked with Bejarano from June of 1973 until the end of 1978 (i.e., from the time Bejarano was twelve until he was seventeen years old). Id., p. 957-966. Franks attributed Bejarano's problems with anger and his emotions to childhood deprivations and surmised that he had been physically abused. She indicated that, while she believed the death penalty was appropriate in other cases, mitigating factors made the penalty unfair in Bejarano's case. The caseworker, Mary Nowicki, stated in a declaration that she had weekly contact with Bejarano at the Hanna Boys center in 1974 and 1975. Id., 1006-1009. According to the declaration, she remembered him as a quiet and reserved boy who was "damaged," but not "violent." Like Franks, she related Bejarano's problems to not receiving enough care and attention as a child. She also conjectured that Bejarano may have been the victim of sexual abuse, though she provided no concrete facts to support her theory. An investigator for Bejarano's counsel in his first federal habeas proceeding interviewed (via telephone) Bejarano's younger sister (Mary Bejarano) and older brother (Tony Bejarano) in August of 1992. Id., p. 1752-61; docket #106-2, p. 813-22. The reports generated by those interviews indicate that the siblings had only minimal contact with each other after the house fire that resulted in the breakup of the family when they were young children. Thus, other than perhaps describing the trauma caused by their mother's early death and their father's alcoholism and failure to take care of them, neither Mary nor Tony would have been able to provide helpful testimony at Bejarano's penalty hearing. Three potential witnesses Bejarano cites had contact with him between March of 1984 (when

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he was released from prison in Idaho) and March of 1986 (when he was arrested again, then moved to Reno a few months later). According to excerpts of a deposition she gave in June of 1992 and a video interview she gave in April of 1992,10 Virginia Greathouse hired Bejarano to do yard work. During their acquaintance, Greathouse considered Bejarano to be a dependable and trustworthy employee who provided valuable assistance when her husband passed away in 1985. Greathouse noted that, during the time he worked for her, Bejarano was never violent and did not have problems with alcohol. She even allowed Bejarano to live in an apartment on her property. According his declaration, another Idaho witness, Ben Wenke, met Bejarano while working at a rescue mission in Boise. Docket #106-2, p. 631-36. Wenke, who at some point became an ordained Baptist minister, stated that he developed a close friendship with Bejarano, allowing him to stay in his home with his wife and two daughters. Like Greathouse, Wenke considered Bejarano to be an honest, hard-working person. He also noted how well Bejarano got along with his daughters, each of whom provided their own declarations describing their adoration for Bejarano (id., p. 638-43 and p. 824-27). And, based on a letter he wrote to the investigator working for Bejarano's trial counsel, the pastor of a Baptist church in Boise, Reverend Bob Hines, could verify that Bejarano regularly attended church there in 1984-1985 and also coached the women's softball team. Docket #106, p. 1765. As noted, if Bejarano cannot meet "the highly demanding and heavy burden of establishing actual prejudice" (Williams v. Taylor, 529 U.S. 362, 394 (2000) (internal quotation marks omitted)), it is unnecessary to determine whether counsel's performance was deficient. In assessing prejudice (i.e., whether there is a reasonable probability he would have received a different sentence), this court must "consider the totality of the available mitigation evidence-both that adduced at trial, and the evidence adduced in the habeas proceeding-and reweigh it against the evidence in aggravation." Porter v. McCollum, 130 S.Ct. 447, 453-54 (2009) (per curiam) (internal quotation marks and
10

As recounted in this court's order of March 15, 2010 (docket #157), Bejarano submitted a DVD of the April 1992 interview (docket #154) in response to the State's complaint that portions of the previously-filed deposition transcript (docket #106-1, p. 937-48) were missing. 23

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brackets omitted). The problem for Bejarano is that most of the foregoing factual allegations about available mitigation evidence were not developed in his state court proceedings. This Court's determination that an evidentiary hearing is precluded by 28 U.S.C. § 2254(e)(2) also means that it is not permitted to consider much of Bejarano's proffered evidence in adjudicating this claim.11 See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005) (applying § 2254(e)(2) to petitioner's attempt to expand the record under Rule 7 of the Rules Governing § 2254 cases). Even if that were not the case, however, Bejarano still falls short of establishing that he suffered prejudice of the type contemplated by Strickland. Without question, the jury was not fully apprised of the deprivation and instability that plagued Bejarano's childhood and adolescence. Nonetheless, the extensive background information Bejarano has provided lacks compelling facts of the type giving rise to a finding of prejudice in capital cases. See Rhoades v. Henry, 596 F.3d 1170, 1194-95 (9th Cir. 2010) (holding that petitioner's newly proffered mitigating evidence was not sufficiently compelling to establish Strickland prejudice). In Rhoades, the court compared the petitioner's proffer to the "nightmarish" life histories of the petitioners in Rompilla v. Beard, 545 U.S. 374 (2005), Wiggins v. Smith, 539 U.S. 510 (2003), and Williams, supra, three cases in which the Supreme Court held that the petitioner was prejudiced by counsel's failure to present mitigating evidence: In Rompilla, the additional mitigation evidence showed that the petitioner was beaten by his father with his hands, fists, leather straps, belts and sticks, was subjected to yelling and verbal abuse, was locked by his father "in a small wire mesh dog pen that was filthy and excrement filled"; was isolated as a child without contact with other children; and suffered from organic brain damage that significantly impaired several of his cognitive functions. 545 U.S. at 391-92, 125 S.Ct. 2456. . . . In Wiggins, the petitioner experienced severe privation and abuse in his first six years of life, and physical torment, sexual molestation, and repeated rape thereafter in foster care. . . . In Williams, new evidence showed the petitioner had been severely and repeatedly beaten by his father, had been committed to the custody of the social services bureau, had no schooling beyond sixth grade, and was borderline mentally retarded. . . .
11

Noteworthy exceptions being the selection of Bejarano's juvenile records presented as exhibits during the penalty phase of his trial (docket #141-28, p. 31-32; docket #141-31) and the aforementioned assessments of Drs. Howle and Nielsen presented (via testimony and written reports) at the evidentiary hearing in Bejarano's first state post-conviction proceeding. 24

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596 F.3d at 1194-95. There can be little doubt that Bejarano was disadvantaged as a result of being raised in foster care and in juvenile facilities, with only minimal contact with his family. But, as with the petitioner in Rhoades, the circumstances of his upbringing pale in comparison to those described in Rompilla, Wiggins, and Williams. Although Nowicki and Franks alluded in their declarations to the possibility that Bejarano was physically or sexually abused while growing up, the record does not substantiate any actual instances of such abuse. And, while the aggravating circumstances against Rhoades were more powerful than those present in Bejarano's case, Rhoades' mitigation case at trial was also substantially stronger than Bejarano's. Id. at 1190-91. Likewise, Bejarano's proffered mental health evidence could have potentially been viewed as mitigating if presented to the jury at his trial, but not more than marginally so. Each of the three experts discussed above determined that Bejarano has a personality disorder with antisocial features (along with dysthymia or low-grade depression, according to Etcoff and Nielsen), a diagnosis that lacks the mitigatory impact of more serious disorders such as organic brain damage. See Fields v. Brown, 431 F.3d 1186, 1205-06 (9th Cir. 2005) (holding that counsel was not ineffective for failing to investigate and present evidence of petitioner's mental condition where three experts had agreed that petitioner had antisocial personality disorder). Any benefit to be gained by presenting evidence of Bejarano's antisocial personality disorder would have likely been offset by the opinions of Howle and Nielsen that the condition was probably not curable. Docket #124-1, pp. 18-19, 33. Cf. Robinson v. Schriro, 595 F.3d 1086, 1110 (9th Cir. 2010) (finding counsel ineffective for failing to present evidence of petitioner's potential for rehabilitation). Bejarano's case for mitigation would have potentially been strengthened by the presentation of more detailed information and testimony about his below average intelligence. See Wiggins, 539 U.S. at 535 (listing "diminished mental capacities" among the factors that augmented petitioner's mitigation case). It should be noted, however, that although Dr. Etcoff and Dr. Nielsen reported similar full scale IQ scores for Bejarano (both using the Weschler Adult Intelligence Scale 25

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Revised), there were substantial discrepancies in the subtest scores. Docket #141-30; docket #1061, p. 967-1004. Etcoff reported a verbal IQ of 74 and a performance IQ of 94 (99 prorated), while Nielsen reported a verbal IQ of 85 and a performance IQ of 82. Finally, this Court finds that, of the proposed lay witnesses discussed above, only three of them ­ Franks, Wenke, and Greathouse ­ could have provided potentially-mitigating testimony. As noted, the proffered evidence shows that Mary and Tony Bejarano had little, if any, relevant information to provide about their brother. Mary Nowicki was apparently involved with Bejarano for only a year or two when he was in his early teens and her testimony would have been cumulative of that provided by Franks. The reverends could offer nothing more than the fact that Bejarano attended church services for a brief period of time and coached a women's softball team, information that Wenke could have provided as well. As for Franks, Specchio advised the trial court during the ex parte hearing that he had reservations about calling her as a penalty phase witness due to a risk that she would testify about Bejarano's "fixations regarding homicide." Docket 141-26, p. 27. While Specchio was apparently relying on information he obtained secondhand (see docket #106-2, p. 619-20), his stated concern was corroborated, to some extent, by Franks's declaration (docket #106-1, p. 963-64). Even so, the court finds that, on balance, Franks's testimony may have added weight to Bejarano's mitigation case inasmuch she would have been able to provide sympathetic background information about his childhood and adolescence. Wenke and Greathouse would have potentially been able to inform the jury about at the two years in Idaho when Bejarano appears to have put his life in order and function as a law-abiding, productive member of society. Greathouse also knew, however, about the March 1986 bar incident and likely would have been asked about it on cross-examination (as she was in her deposition). Docket #106-1, p. 943. On the other side of the scale, the aggravating circumstances against Bejarano were numerous and weighty, even without the invalidated McConnell factors. They established his

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proclivity for violence, his disregard for human life, and his insusceptibility to rehabilitation. The evidence and testimony admitted at his trial also showed him to be an angry and vindictive person completely uninhibited in his actions by morals or a conscience. On balance, the mitigation evidence Bejarano asks this Court to consider "would barely have altered the sentencing profile presented to the [jury]." Cf. Porter, 130 S.Ct. at 454 (quoting Strickland, 466 U.S. at 700). It is very unlikely that additional information about Bejarano's childhood and teenage years would have caused any of the jurors to change his or her opinion of him. The Idaho witnesses may have added information that would have softened at least one juror's perception of Bejarano, but not to the extent that there is a reasonable probability that the juror would have opted against the death penalty. And, as discussed above, the mental health evidence is not particularly compelling and could have even been damaging to the extent that it could have established that Bejarano's antisocial behavior was not likely to be corrected. In sum, there is no reasonable probability that the omitted evidence Bejarano relies upon in advancing this claim would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, therefore, the jury's sentence. Bejarano's remaining allegations of ineffective counsel also fail to provide grounds for relief. The decision to have Bejarano testify at the sentencing hearing was reasonable under the circumstances ­ i.e., in light of the aggravating weight of the evidence and testimony presented by the State at the penalty hearing, Specchio was left with little choice but to have Bejarano testify in response. Bejarano contends that, but for counsel's failure to adequately prepare a mitigation case, counsel would not have had to resort to him testifying at the penalty hearing or, alternatively, that he would not have testified in the self-defeating manner in which he did. This claim is too