Free Order on Motion for Discovery - District Court of Arizona - Arizona

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IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

Roger Wayne M urray, Petitioner, vs.

12 13 14 15 16 Dora Schriro, et al., Respondents.

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No. CV 03-775-PHX-DGC DEATH PENALTY CASE

ORDER

Petitioner Roger Wayne M urray ("Petitioner") is a state prisoner sentenced to 17 death. Before the Court are Petitioner's M otion for Discovery and Evidentiary Hearing and 18 M otion to Expand the Record Under Rule 7 of the Rules Governing Section 2254 Cases. 19 20 21 Respondents filed responses, and Petitioner filed replies. (Dkts. 81, 82, 84, 86.) 22 Pursuant to the Court's general procedures governing res olution of capital habeas 23 proceedings, the parties have completed briefing of both the procedural status and the 24 merits of Petitioner's habeas claims . 25 26 27 28 In his Traverse, Petitioner joined Claims 40 and 41, which present the same issue. (Dkt. 56 at 41.) Case 2:03-cv-00775-DGC Document 90 Filed 09/30/2005 Page 1 of 37
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(Dkts. 72, 73.)1

Petitioner requests expansion of the record, dis covery and/or an

evident iary hearing in support of Claims 1, 2, 4-7, 23, 29, 34-37, 40/41, 42, 44, 45 and 48.2

The Court will address whether the claims for which

"Dkt." refers to the documents in this Court's case file.

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Petitioner seeks evidentiary development are appropriate for review on the merits by a federal habeas court. The Court will also address the procedural status of Claims 30-33,

which Petitioner purports to withdraw or dismiss wit hout p rejudice. (Dkt. 56 at 34.) In his Traverse, Petitioner voluntarily withdrew Claims 43, 47, 49-52 and 54-56 as duplicat ive of other claims in t he A mended Petition. (Dkt. 56 at 41, 50, 56, 57-58.) Accordingly, these claims are no longer before the Court and will be dismissed. FACTUAL AND PROCEDURAL BACKGROUND On June 12, 1992, Petitioner and his older brother, Robert, were jointly tried and convicted by a jury of one count of armed robbery and two counts of first degree murder in the deaths of Dean M orrison and Jacqueline Appelhans. The murders occurred in the

course of an armed robbery of a store and restaurant run by M orrison and Appelhans , and of their adjacent home, located in Grasshopper Junction, a rural area outside Kingman, Arizona. M ohave County Superior Court Judge James E. Chavez sentenced Petitioner and his brother to death on each murder count and to a term of imprisonment for t he armed robbery. The Arizona Supreme Court affirmed the convictions and sentences of each

brother in a joint opinion. State v. M urray, 184 Ariz. 9, 906 P.2d 542 (1995). On November 21, 1995, Petit ioner filed a motion for reconsideration. (ROA 36.)3 That motion was denied. (ROA 37.) A petition for writ of certiorari was subsequently denied by the United States Supreme Court. M urray v. Arizona, 519 U.S. 874 (1996).

"RO A " refers to the one-volume record in Petitioner's direct appeal (Case No. CR92-0441-AP). "CROA" refers to the four-volume record, and one sealed envelope, in Robert M urray's companion direct appeal (Case No. CR-92-0440-AP). "PCR" refers to documents contained in the three-volume record from Petitioner's post-conviction proceedings (Case No. M ohave CR-13057). "PR doc." refers to enumerated documents contained in the three-volume record on ap p eal from Petitioner's post-conviction p roceedings (Case No. CR 01-0146-PC). "RT" refers to the reporter's transcripts. The original reporter's transcripts and certified copies of trial and post-conviction records were provided to this Court by the Ariz ona Supreme Court on September 23, 2004 in this case (dkt. 59), and on November 13, 2001 in Robert M urray's habeas action, CV 99-1812-PHXDGC, which is also before this Court. Case 2:03-cv-00775-DGC Document 90 -2Filed 09/30/2005 Page 2 of 37

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On M arch 9, 1999, P et it ioner filed a petition for postconviction relief ("PCR") in the trial court ("PCR court"). The PCR court s ummarily rejected or found precluded most of Petitioner's claims, but it appointed a psychologist and neuropsy chologist to evaluate Petitioner preparatory to an evidentiary hearing to be held on two ineffective assistance of counsel ("IAC") claims alleging that trial counsel: (1) slept during portions of the trial, and (2) failed to obtain neurological or neuropsychological testing for purposes of mit igat ion at sentencing. (PCR Order filed 1/10/00.) Following examination by the

appointed experts, Petitioner notified the PCR court that he did not intend to rely on those experts. (PCR Notice filed 12/18/00.) The PCR court granted the Respondents' motion to dismiss the second IAC claim and held an evidentiary hearing on the first. (PCR Order filed 4/16/01.) Following the evidentiary hearing, the PCR court denied relief on that claim and dismissed the petition. (PCR Order filed 3/21/02.) The Arizona Sup reme Court summarily denied a Petition for Review except as to Petitioner's claim that he was entitled t o a jury determination of aggravating factors. (PR docs. 29, 30.) With respect to that claim, the Arizona Supreme Court consolidat ed review with claims of other similarly-situated inmates and subsequently denied relief, see Stat e v. Towery, 204 Ariz. 386, 64 P.3d 828 (Ariz. 2003). (PR doc. 37.) The court thereafter denied Petitioner's motion for reconsideration. (PR doc. 40.) Petitioner filed a petition for writ of certiorari, which he later withdrew. (PR docs. 42, 43.) Petitioner then initiated the instant habeas proceedings. (Dkt. 1.) PRINCIPLES OF EXHAUS TION AND PROCEDURAL DEFAULT Because this case was filed after April 24, 1996, it is governed by the Antiterrorism and Effective Death Penalty A ct of 1996, 28 U.S.C. § 2254 ("AEDPA"). Lindh v. M urphy, 521 U.S. 320, 336 (1997); Woodford v. Garceau, 538 U.S. 202, 210 (2003). T he A ED PA requires that a writ of habeas corpus not be granted unless it appears that the petitioner has properly exhausted all available state court remedies . 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). To properly exhaust state remedies, the petitioner mus t " fairly present" his claims to the -3Filed 09/30/2005

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stat e's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). A claim is "fairly presented" if the petitioner has described the op erat ive facts and t he federal legal theory on which his claim is based so that the state courts have a fair opportunity to apply controlling legal principles to t he facts bearing upon his

constitutional claim. Anderson v. H arles s , 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971).4 If a petitioner's habeas claim includes new factual allegations not

presented to the state court, the claim may be considered unexhausted if the new facts "fundamentally alter" the legal claim presented and considered in state court. Hillery, 474 U.S. 254, 260 (1986). A habeas petitioner's claims may be precluded from federal review in either of two ways. First, a claim may be procedurally defaulted in federal court if it w as actually raised in state court but found by that court to be defaulted on stat e p rocedural grounds. Coleman, 501 U.S. at 729-30. Second, a claim may be procedurally defaulted in federal court if the p etitioner failed to present the claim in any forum and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find t he claims procedurally barred." Id. at 735 n.1. This is often referred to as "technical" exhaustion ­ although the claim was not actually exhausted in state court, the petitioner no longer has an available state remedy. See Gray v. Netherland, 518 U.S. 152, 161-62 (1996) ("A habeas petitioner who has defaulted his federal claims in state court meets the t echnical requirements for exhaustion; there are no state remedies any longer `available' to him."). Rule 32 of the Arizona Rules of Criminal Procedure governs when petitioners may seek relief in post-convict ion p roceedings and raise federal constitutional challenges to Vasquez v.

Resolving whether a petitioner has fairly presented his claim to the state court, t hus permitting federal review, is an intrinsically federal issue which must be determined by the federal court. Wyldes v. Hundley, 69 F.3d 247, 251 (8t h Cir. 1995); Harris v. Champion, 15 F.3d 1538, 1556 (10th Cir. 1994). Case 2:03-cv-00775-DGC Document 90 -4Filed 09/30/2005 Page 4 of 37

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their convictions or sentences in state court. Rule 32.2 provides, in part: a. P reclus ion. A defendant shall be precluded from relief under this rule based upon any ground: .... (2) Finally adjudicated on the merits on appeal or in any p revious collateral proceeding; (3) That has been waived at trial, on appeal, or in any previous collateral proceeding. b. Exceptions. Rule 32.2(a) shall not apply to claims for relief based on Rules 32.1(d), (e), (f), (g) and (h). When a claim under [these subs ect ions] is raised in a successive or untimely petition, the petition must s et forth the reasons for not rais ing the claim in the previous petition or in a timely manner. If meritorious reas ons do not appear substantiating the claim and indicating why the claim was not stated in t he p revious petition or in a timely manner, the petition shall be summarily dismissed. Ariz. R. Crim. P. 32.2 (2002) (emphasis added). Thus, pursuant to Rule 32.2, petitioners may not be granted relief on any claim which could have been raised in a prior Rule 32 petit ion for pos t -convict ion relief. Similarly, pursuant to Rule 32.4, petitioners must seek relief in a timely manner. Only if a claim falls w ithin certain exceptions (subsections (d) through (h) of Rule 32.1) and the petitioner can justify why the claim was omit t ed from a prior petition or w as not presented in a timely manner will the preclusive effect of Rule 32.2 be avoided. Ariz. R. Crim. P. 32.2(a) (3), 32.4(a). In the present case, if there are claims which have not been raised previously in state court, the Court mus t determine whether Petitioner has state remedies currently available to him pursuant to Rule 32. If no remedies are currently available, petitioner's Coleman, 501 U.S. at 732,

claims are "technically" exhausted but procedurally defaulted.

735 n.1. In addition, if there are claims that were fairly presented in state court but found defaulted on state procedural grounds, such claims also will be found procedurally defaulted in federal court s o long as the state procedural bar was independent of federal law and adequate to warrant p reclus ion of federal review. Harris, 489 U.S. at 262. A state procedural default is not indep endent if, for example, it depends upon an antecedent federal constitutional ruling. See Stewart v. Smith, 536 U.S. 856 (2002) (per curiam). A state bar is not adequate unless it was firmly established and regularly applied at the time of -5Filed 09/30/2005

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application by the state court. Ford v. Georgia, 498 U.S. 411, 424 (1991). Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9 (1984). As a general matter, the Court will not review the merits of procedurally default ed claims unless a petitioner demonstrates legitimate cause for the failure to properly exhaust in state court and p rejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of jus t ice w ould result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 735 n.1. Because Petitioner does not assert that either caus e and p rejudice or a fundamental miscarriage of justice excuses the procedural default of any claim at issue in this O rder, the Court does not further address those issues. PROCEDURAL S TATUS OF CLAIMS The Court reviews the procedural status of the claims for which evidentiary development is sought and/or those that Petitioner seeks to dismiss wit hout p rejudice: Claims 1, 2, 4-7, 23, 29-37, 40/41, 42, 44, 45 and 48. Res p ondents concede that Claims 1 (in part), 2, 4 (in part), 5 (in part), 6 (in part), 7 (in part), 40/41 (in part), 42, 45 and 48 are properly exhausted.5 (Dkt. 46.) Respondents contest ripeness of one claim and exhaustion of the

remaining claims. Claim 1 (in part) Claim 1 alleges t hat Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated by the trial court's denial of his mot ion t o change venue based on pretrial publicity. (Dkt. 40 at 49.) Res pondents contend this claim is only exhausted to the extent that it alleges a violation of due p rocess. (Dkt. 46 at 13.) Petitioner replies that he presented this claim as a violation of his Sixth and Fourteenth Amendment rights on direct appeal. (Dkt. 56 at 7.)

Respondents misidentified Claims 42, 44, and 48 in their Answer, which were mislabeled as Claims 41, 43, and 47, respectively. (Dkt. 46 at 73, 74, 82.) Case 2:03-cv-00775-DGC Document 90 -6Filed 09/30/2005 Page 6 of 37

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Petitioner presented the Sixt h and Fourteenth Amendment aspects of this claim on direct appeal. (ROA 15 at 14, 16.) T herefore, these portions of this claim are exhausted.

However, Petitioner did not present the Fifth and Eighth Amendment aspects of this claim in state court . Petitioner is now precluded by Arizona Rules of Criminal Procedure

32.2(a)(3) and 32.4 from obtaining relief in state court on these aspects absent an applicable exception, which he does not assert.6 The Court finds t he Fifth and Eighth Amendment Because Petitioner

aspects of Claim 1 technically exhausted but procedurally defaulted.

does not at t emp t to show cause and prejudice or a fundamental miscarriage of justice to excuse the default, the Court will dismiss these aspects of Claim 1. Claim 4 (in part) Claim 4 alleges that M ohave County's selection of pros p ect ive jurors from a deficient master lis t violated Petitioner's Sixth and Fourteenth Amendment rights to an

Petitioner does not assert that any exception to preclusion applies to any claim at issue herein. See Beaty v. Stewart, 303 F.3d 975, 987 & n.5 (9th Cir. 2002) (finding no state court remedies and noting that petitioner did not raise any exceptions to Rule 32.2(a)). First, Pet itioner does not assert that any of the preclusion exceptions enumerated in Rule 32.2(b)(2)­expired sentence, newly discovered material facts, no fault untimely appeal or PCR proceeding, significant change in the law, or actual innocence of crime or death sentence­apply and the Court finds none of them applicable. See Ariz. R. Crim. P. 32.2(b)(2); 32.1(d) - (h). Second, Petitioner does not argue that any of the claims are of the type that cannot be w aived abs ent a personal knowing, voluntary and intelligent waiver. Cf. Cassett v. Stewart, 406 F.3d 614, 622-23 (9th Cir. 2005) (addressing waiver because raised by petitioner). T he Court finds, as to all of the claims in this Order for which the Court determines there is no available remedy in state court pursuant to Rule 32.2(a)(3), that none of those claims fall within the limited framework of claims requiring a knowing, voluntary and intelligent waiver. See Ariz. R. Crim. P. 32.2(a)(3) cmt. (Wes t 2004) (noting that most claims of trial error do not require a personal waiver); Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) (ident ifying the right to counsel, right to a jury trial and right to a 12person jury under the Arizona Constitution as the type of claims that require personal waiver); see also State v. Espinosa, 200 Ariz. 503, 505, 29 P.3d 278, 280 (Ct. A p p. 2001) (withdrawal of plea offer in violation of due process not a claim requiring personal waiver); but cf. Cassett, 406 F.3d at 622-23 (finding claim not defaulted because unclear whether personal waiver would be required under state law). Case 2:03-cv-00775-DGC Document 90 -7Filed 09/30/2005 Page 7 of 37

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impartial jury drawn from a fair cross-section of the community and to equal protection. (Dkt. 40 at 57.) Respondents contend that P etitioner failed to exhaust the Fourteenth (Dkt. 46 at 19.) On direct ap p eal, P et itioner alleged

Amendment aspect of this claim.

violations of both his Sixth Amendment fair cross-section rights and his Fourteenth Amendment equal protection right s . exhausted in its entirety. Claims 5 (in part) and 6 (in part) Claims 5 and 6 allege violations of the Fifth, Sixth, Eight h and Fourteenth Amendments based on the denial of Petitioner's rights to a master jury pool representing a fair cross-section of the community and equal protection (Claim 5) and the trial court's denial of his Batson challenges to prospective jurors Christina Pethers and David Alvarado (Claim 6). (Dkt. 40 at 57-65.) Respondents argue that only the Sixth Amendment aspect of these claims was exhausted in state court. (Dkt. 46 at 19, 22, 23.) Petitioner presented the Sixt h and Fourteenth Amendment aspects of these claims to the state court on direct appeal; therefore, these aspects of Claims 5 and 6 are properly exhausted and appropriate for review in this Court. (ROA 15 at 4, 6, 17-18.) However, P et it ioner did not present the Fifth and Eighth Amendment aspects of these claims . Petitioner is now precluded by Rules 32.2(a)(3) and 32.4 from obtaining relief in state court absent an ap plicable exception, which he does not assert. See supra note 6. The Court (RO A 15 at 4, 6.) The Court finds that Claim 4 is

finds the Fifth and Eighth A mendment aspects of Claims 5 and 6 technically exhausted but procedurally defaulted. Because Petitioner does not attempt to show cause and prejudice

or a fundamental miscarriage of justice to excus e t he defaults, the Court will dismiss these aspects of Claims 5 and 6 as procedurally barred. Claim 7 (in part) Claim 7 alleges violations of the Fifth, Sixt h, Eighth and Fourteenth Amendments bas ed on the denial of access to the crime scene. (Dkt. 40 at 65.) Respondents concede t his claim is exhausted to the extent Petitioner alleges a due process violation under the Fourteenth Amendment. (D kt . 46 at 25.) Petitioner does not dispute that the Fifth, Sixth -8Filed 09/30/2005

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and Eighth Amendment as p ect s of this claim were not fairly presented to the Arizona Supreme Court. Petitioner is precluded by Rules 32.2(a)(3) and 32.4 from now obtaining

relief in state court; therefore, these aspects are technically exhausted but procedurally defaulted. P et it ioner does not attempt to show cause and prejudice or a fundamental

miscarriage of justice to excuse the default. Accordingly, the Court will dismiss the Fifth, Sixth and Eighth Amendment aspects of this claim as procedurally barred. Claim 23 Claim 23 alleges that the trial court violated Petitioner's Fifth and Fourteenth Amendment rights by: (a) granting him insufficient funds for experts, and (b) denying his request to appoint experienced capital co-couns el. (Dkt. 40 at 93-95.) Respondents argue

that Petitioner failed to present either portion of this claim t o t he s t at e court and is now p recluded from doing so. (Dkt. 46 at 51.) In the Traverse, Petitioner proposes to dismis s the claim without prejudice and asks the Court to stay the remaining claims pending exhaustion of this, and any other, unexhausted claim so dismissed.7 (Dkt. 56 at 29.)

How ever, in his motion for discovery and evidentiary hearing, Petitioner argues that he presented this claim on direct appeal and that the Arizona Sup reme Court actually addressed the claim. (Dkt. 72 at 25.) In his Opening Brief on direct appeal, the only reference to expert funding was the following statement in a footnote: "The court did allow $3,000 for expenses to be used as the Appellant wished; however, that amount was not enough to include t he cost of a footprint experts [sic], as well as other costs that the office had to incur in this

Following the filing of the Travers e but before the instant motions for evidentiary development, Petitioner filed a "Notice of D ismissal of Certain Claims Without Prejudice and M otion to Stay Proceeding." (D kt . 60.) The Court struck the notice, finding it was an improper attempt, under Fed. R. Civ. P. 41(a)(1), t o unilaterally dismiss without prejudice individual claims from a multi-claim comp laint. (Dkt. 71 at 2.) The Court further concluded, as it does again herein, that Petitioner lacked an available remedy in s tate court to present his allegedly unexhausted claims and therefore denied the requested stay of proceedings. (Id. at 3-4.) Case 2:03-cv-00775-DGC Document 90 -9Filed 09/30/2005 Page 9 of 37

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representation."

(ROA 15 at 29, n.2.)

This statement was made in connection with

Petitioner's claim that expert footprint evidence from Detective Lent was improperly admitted at trial because (a) Lent was improperly qualified as an expert, (b) procedures to obt ain the footprint evidence did not comply with Frye v. United States, 293 F. 1013 (D .C. Cir. 1923), and (c) the court imp roperly barred the defense from presenting evidence to impeach Lent. Petitioner argued in particular that Lent 's t es t imony should have been

excluded because Petitioner's request for a Washington, D.C. footprint expert had been denied. (Id. at 29.) Petitioner did not allege that his federal constitutional right s w ere

violated by denial of funds t o ret ain the out-of-state expert or by denial of experienced capital co-counsel. The Court finds that neit her p ort ion of Claim 23 was fairly presented to the Arizona Supreme Court. otherwise address these claims.8 Petitioner asks this Court to permit him to dismiss t his claim "without prejudice" if the Court finds it unexhausted and to st ay t he action pending its exhaustion in state court. (D kt . 56 at 29.) As set forth in the Court's order denying Petitioner's motion to stay The Court further concludes that the state court did not

proceeding, see supra note 7, Petitioner does not assert that any of the exceptions to Rules 32.2(a)(3) and 32.4 apply to this claim. These rules bar him from now obtaining relief on this claim in state court. This claim is technically exhausted but procedurally default ed.

Pet itioner has not attempted to show cause and prejudice or a fundamental miscarriage of justice to excuse the default. Accordingly, Claim 23 will be dismissed as procedurally

barred, and this action will not be stayed.

In its opinion, the state s up reme court noted that Petitioner argued "that the trial court 's denial of his request for expenses for an out-of-state expert on footprint identification w as error." M urray, 184 Ariz. at 29, 906 P.2d at 562. Stating that the trial court had authorized $3,000 for experts, the supreme court found that, absent a s howing of substantial prejudice to the defense, the trial court had not abused its dis cret ion in questioning the need to use an expert from Washington, D.C., when other experts were available in Arizona or neighboring states. Id. at 30, 906 P.2d at 563. No part of this analysis rested on federal constitutional legal principles. Document 90 - 10 Filed 09/30/2005 Page 10 of 37

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Claim 29 Claim 29 alleges that the Arizona Supreme Court violated Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment rights under Lockett v. Ohio, 438 U .S. 586 (1978), and Eddings v. Oklahoma, 455 U .S. 104 (1982), by improperly refusing to consider his dysfunctional childhood as mitigation during its independent sentencing review on direct appeal. (Dkt. 40 at 107-109.) Respondent s cont end t hat because the PCR court found this claim precluded by Petitioner's failure to present it in a motion for reconsideration on direct appeal, it is procedurally defaulted. (Dkt. 46 at 54; see PCR Order filed 1/10/00.) Petitioner argues that the Arizona Sup reme Court had a fair opportunity to address this claim during its independent sentencing review on direct appeal. (Dkt. 56 at 33.) This claim could not have been exhaust ed as part of Petitioner's direct appeal because it is during that appeal that the error is alleged to have occurred. To give the

state's highest court t he opportunity to rule on a claim of error arising during his direct ap p eal, t he p roper method was to file a motion for reconsideration with the Arizona Sup reme Court. See Ariz. R. Crim. P. 31.18(b) ("Any party desiring reconsideration of a decision of an appellate court may file a motion for reconsideration in the appellate court w it hin fifteen days after the filing of a decision by the appellate court."); Correll v. St ew art , 137 F.3d 1404, 1418 (9th Cir. 1998) (finding procedural default of claim based on error of the Arizona Supreme Court where petitioner failed to file motion for reconsideration, w hich is "an avenue of relief that the Arizona Rules of Criminal Procedure clearly outline."). Although Petitioner filed a motion to reconsider the decision on direct appeal, he did not raise any is s ue related to the Arizona Supreme Court's independent sentencing review. (ROA 36.) Rather, he waited to raise the issue in his PCR petition, and the PCR court found the claim t o be p recluded. Petitioner does not assert cause and prejudice or a fundamental miscarriage of justice to excuse the default. procedurally barred. Claim 30 Claim 30 alleges IAC in violation of Petitioner's Fifth, Sixth, Eight h and F ourteenth - 11 Filed 09/30/2005 Accordingly , Claim 29 will be dismissed as

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Amendment rights based on trial counsel's failure to: (a) file a pretrial motion to preclude expert tracking testimony from Detective Lent, and (b) present an expert witness to challenge Lent's qualifications as a footprint expert. (Dkt . 40 at 109-11.) Respondents

contend Petitioner failed to present this claim to the Arizona Supreme Court in the Petition for Review. (D kt . 46 at 55.) Petitioner does not dispute the contention, but purports to "withdraw this claim without prejudice" and requests a stay to exhaust the claim in state court. (Dkt. 56 at 34.) The record reflects that Petitioner did not present this claim to the Arizona Supreme Court in his Pet it ion for Review. (PR doc. 7.) Petitioner does not assert that any of the exceptions to Rules 32.2(a)(3) and 32.4 apply t o t his claim, and these rules otherwise bar him from now obtaining relief on this claim in state court. technically exhaus t ed but procedurally defaulted. See supra note 7. The claim is

Petitioner has not attempted to show

cause and prejudice or a fundamental miscarriage of justice to excuse the default. Accordingly, Claim 30 will be dismissed as procedurally barred, and this action will not be stayed. Claims 31, 32 and 33 Claims 31-33 allege IAC in violat ion of Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment rights based on trial counsel's failure t o: s eek severance of trial

bas ed on ant agonistic defenses (Claim 31); present expert testimony to rebut the State's exp erts (Claim 32); and properly prepare for the aggravation/mitigation hearing (Claim 33). (Dkt. 40 at 111-18.) Respondent s cont end these claims were either never presented in state court or were not presented to the Arizona Supreme Court in t he Petition for Review. (Dkt. 46 at 58, 59-60.) Petitioner did not present these claims to the Arizona Supreme Court in his Petition for Review. (PR doc. 7.) If unexhausted, Petitioner s t at es he will dismiss these claims

"without prejudice," and he asks the Court to stay this action pending t heir exhaustion in s t at e court. (Dkt. 56 at 34-35.) Petitioner does not assert that any of the excep t ions t o Rules 32.2(a)(3) and 32.4 apply to these claims, and these rules otherwise bar him from now - 12 Filed 09/30/2005

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obtaining relief in state court. but procedurally defaulted.

See supra note 7.

These claims are technically exhausted

Petitioner has not attempted to show cause and prejudice or Accordingly, these claims will

a fundamental miscarriage of justice to excuse the defaults.

be dismissed as procedurally barred, and this action will not be stayed. Claim 34 Petitioner alleges that execution by the State after more t han t w elve years on death row fails to serve any legitimate penological purpose and violates his Eight h Amendment right to be free from cruel and unusual punishment. (Dkt. 40 at 118.) If unexhausted,

Petitioner states he w ill dismiss this claim "without prejudice," and he asks the Court to stay this action pending its exhaustion in state court. (Dkt. 56 at 35.) Regardless of w het her Petitioner properly exhausted this claim, the Court will deny it as meritless. See 28 U.S.C. § 2254(b)(2) (Supp. 2005) (district courts may deny habeas application on merits notwithstanding failure to exhaus t ). The Supreme Court has not

decided whether lengthy incarceration prior to execution can constitute cruel and unusual p unishment. See Lackey v. Texas, 514 U.S. 1045 (1995) (mem.) (Stevens, J. & Breyer, J ., dis cus s ing denial of certiorari and noting the claim has not been addressed). In contrast,

circuit courts including the Ninth Circuit Court of Appeals hold prolonged incarceration under a sentence of death does not offend the Eighth Amendment. See M cKenzie v. Day, 57 F.3d 1493, 1493-94 (9th Cir. 1995) (en banc); White v. Johnson, 79 F.3d 432, 438 (5th Cir. 1996) (delay of 17 years); Stafford v. Ward, 59 F.3d 1025, 1028 (10th Cir. 1995) (delay of 15 years ). Becaus e the Court finds this claim to be without merit as a matter of law, The motions for development will be denied,

evident iary development is not warranted. and Claim 34 will be denied on the merits. Claim 35

Claim 35 alleges violations of Petitioner's rights under the International Covenant

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on Civil and P olitical Rights ("ICCPR"),9 customary international law, and jus cogens.10 (Dkt. 40 at 126-28.) Respondent s argue this claim is procedurally defaulted because it was not presented in state court and Petitioner is now barred from obtaining relief on this claim in state court. (Dkt. 46 at 63.) Petitioner did not present t his claim on direct appeal or in his PCR proceedings. If found unexhaus t ed, Petitioner states he will dismiss this claim

"without prejudice," and he asks the Court to s t ay t his action pending its exhaustion in state court. (Dkt. 56 at 35.) Petitioner does not as s ert t hat any of the exceptions to Rules 32.2(a)(3) and 32.4 apply t o t his claim, and these rules otherwise bar him from now obtaining relief in state court. See supra note 7. Thus, this claim is technically exhausted but procedurally defaulted. Petitioner has not attemp t ed to show cause and prejudice or Accordingly, the claim will be

a fundamental miscarriage of justice to excuse the default.

dismissed as procedurally barred, and this action will not be stayed. Claim 36 Claim 36 alleges that neither lethal gas, nor lethal injection, caus e instant, painless death and either method will result in physical and psychological torture of P et itioner at execution in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights. 40 at 128.) (Dkt.

Res p ondents do not address the lethal gas argument but contend that

Petitioner failed to present the lethal injection argument in his Petition for Review to the Arizona Supreme Court. (Dkt. 46 at 67.)

The Unit ed Nation's ICCPR was ratified by the United States in 1992 and prohibits cruel, inhumane, or degrading punishment, but does not require member countries to abolish the death p enalt y . See Jamison v. Collins, 100 F. Supp 2d. 647, 766 (S.D. Ohio 2000), aff'd as amended on denial of reh'g, 291 F.3d 380 (6th Cir. 2002). "[A] jus cogens norm . . . `is a norm accepted and recognized by t he int ernat ional community of states as a whole . . . from which no derogation is permit t ed and which can be modified only by a subsequent norm of general int ernational law having the same character.'" Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9t h Cir. 1992) (quoting Vienna Convention on the Law of T reaties, art. 53, M ay 23, 1969, 1155 U.N.T.S. 332). Document 90 - 14 Filed 09/30/2005 Page 14 of 37
10

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The Court has reviewed t he record and finds that the lethal gas aspect of this claim was never presented in state court. Petitioner does not assert that any of the exceptions

to Rules 32.2(a)(3) and 32.4 apply to this claim, and t hes e rules otherwise bar him from now obtaining relief in state court. See supra note 6. Thus, the lethal gas as p ect of Claim 36 is technically exhausted but procedurally defaulted. Petitioner does not assert cause and Accordingly, this

prejudice or a fundamental miscarriage of justice to excuse the default. aspect of Claim 36 will be dismissed as procedurally barred.

In his PCR pet it ion, Petitioner challenged lethal injection as a constitutional method of execution. (PCR pet. filed 3/5/99 at 30-33.) In his Petition for Review, Petitioner failed to explicitly present the lethal injection p ortion of this claim, but instead purported to present it as one of the challenges to Arizona's capital sentencing s cheme. (P R doc. 7 at

32.) Assuming that was sufficient to fairly present that aspect of this claim to the Arizona Supreme Court, this Court "looks through" that court's summary denial of review to the PCR court's decision as the last reasoned state court ruling. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). The PCR court found post-conviction relief on the lethal injection

aspect of this claim "precluded" under Rule 32.2(a)(3). (PCR order filed 1/10/00.) Petitioner does not assert cause and prejudice or a fundamental miscarriage of justice to excuse this default. Accordingly, the lethal injection aspect of Claim 36 will be dismissed as

procedurally barred. Claim 37 In Claim 37, Petitioner alleges that (a) he will not be competent to be executed, and (b) "[t]he trial court erred in res t ricting the Appellant's right to a lesser included offense instruction." (Dkts. 40 at 128-30; 52 at 8, n.1.) Both Petitioner and Respondents

acknowledge that (a) is not ripe and is premature for federal review. (Dkts. 40 at 129; 46 at 68.) Pursuant t o M artinez-Villareal v. Stewart, 118 F.3d 628, 634 (9th Cir. 1997), aff'd, 523 U.S. 637 (1998), a claim of incompetency for execution "must be raised in a first habeas petition, w hereupon it also must be dismissed as premature due to the automatic stay that issues when a first petition is filed." If again presented to the district court once the issue - 15 Filed 09/30/2005

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becomes ripe for review, Claim 37(a) shall not be treated as a second or successive petition. See id. at 643-44. premature. With regard to Claim 37(b), P et it ioner concedes that the United States Supreme Court has decided the is s ue adversely to him and states that he only raises the issue to preserve it. (See dkt. 40 at 130-32.) Because Petitioner acknowledges that success on the merits of allegation (b) is foreclosed by Schad v. Arizona, 501 U.S. 624 (1991), the Court will deny the motions for evidentiary development and dismiss Claim 37(b) on the merits. Claim 40/41 Claim 40/41 alleges the trial court violated Petitioner's Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights by outweighed the aggravat ing circumstances. failing to find that mitigation substantially (Dkt. 40 at 136-46.) Respondents argue this Therefore, the Court will dismiss this claim without prejudice as

claim is only exhausted to the extent t hat it alleges a violation of Petitioner's Eighth Amendment rights. (Dkt. 46 at 72.) In his Opening Brief on direct appeal, Petitioner alleged violations of his Eighth and Fourteenth Amendment rights, but did not allege violations of his Fifth, Sixth or Seventh Amendment rights. (ROA 15 at 54.) Petitioner does not assert that any of the excep t ions to Rules 32.2(a)(3) and 32.4 apply to these aspects of this claim, and these rules otherwise bar him from now obtaining relief in state court. See supra note 6. Thus, these aspects are technically exhausted but procedurally defaulted. Petitioner has not attempted to show cause and prejudice or a fundament al miscarriage to excuse the default. Therefore, the Court will dis miss the Fifth, Sixth and Seventh Amendment aspects of Claim 40/41 as procedurally barred. As to the balance of this claim, an as s ertion of error by a sentencer with respect to its weighing of aggravat ing and mitigating factors is at most an error of state law, which may not serve as a basis for federal habeas relief. Estelle v. M cGuire, 502 U.S. 62, 67-68 (1991); see also Eddings, 455 U.S. at 114-15; Ortiz v. Stewart, 149 F.3d 928, 943 (9th Cir. 1998) (finding no constitutional violation where sentencing court considered evidence but found it inadequate to jus t ify leniency; "a sentencer is free to assess how much weight to - 16 Filed 09/30/2005

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assign to s uch evidence"). Therefore, the remainder of Claim 40/41 is not cognizable as a matter of law. dismissed. Claim 44 Claim 44 alleges the trial court violat ed P et it ioner's Fifth, Sixth and Fourteenth Amendment rights by failing to replace couns el despite irreconcilable conflicts. (Dkt. 40 The motions for evidentiary development will be denied and this claim

at 147-52.) Petitioner asserts that he fairly presented this claim in his PCR petition (dkt. 56 at 42), but Respondent s contend that the PCR court's determination that the claim was precluded bars review in federal court (dkt. 46 at 74). Petitioner fairly presented this claim in his PCR petition and petition for review. (PCR pet. filed 3/5/99 at 5-10; PR doc. 7 at 1, 16-20.) The PCR court found the claim

precluded under Rule 32.2(a)(3) because it could have been raised on direct appeal. (PCR order filed 1/10/00.) Because the A riz ona Supreme Court summarily denied review of this claim (PR doc. 30), this Court "looks through" that denial t o t he PCR court's decision as the last reasoned s t at e court ruling. procedurally default ed. 1 1 See Ylst, 501 U.S. at 803. Thus, the claim is

Petitioner has not attempted to show cause and prejudice or a Accordingly, the

fundamental miscarriage of justice to excuse the default of Claim 44. Court will dismiss this claim as procedurally barred. S ummary of Procedural Findings

The Court concludes that the following claims are procedurally barred: the Fifth and Eighth Amendment aspects of Claims 1, 5 and 6; the Fifth, Sixth and Eighth Amendment aspects of Claim 7; the Fifth, Sixth and Seventh Amendment aspects of Claim 40/41; and Claims 23, 29-33, 35, 36 and 44. These claims or portions of claims will be dis mis s ed w it h
11

In his motion for an evidentiary hearing, P et it ioner s uggests for the first time that the PCR court's preclusion ruling as to this claim is not an indep endent and adequate bar to federal review. (Dkt. 72 at 27.) Because P etitioner did not include that argument in the Traverse, it is waived and will not be reviewed by the Court. For that reason, and because Petitioner does not seek to present any evidence relevant to the bar (see dkt. 72 at 27-29), the motion for evidentiary hearing as to this issue will be denied. Document 90 - 17 Filed 09/30/2005 Page 17 of 37

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prejudice.

Claims 34, 37(b) and 40/41 (in part) are meritless and will be dismissed with

prejudice. Claim 37(a) is premat ure and will be dismissed without prejudice. Accordingly, Petitioner's motions for evidentiary development as to Claims 23, 29-37, 40/41 and 44 are summarily denied. LEGAL S TANDARD FOR EVIDENTIARY HEARING, EXPANS ION OF THE RECORD AND DIS COVERY Evidentiary Hearing

7 The decision whet her to grant an evidentiary hearing when there are material facts 8 in dis p ute is generally at the discretion of the district court judge. See Townsend v. Sain, 9 372 U.S. 293, 312, 318 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1 10 (1992), and limited by § 2254(e)(2); Baja v. Ducharme, 187 F .3d 1075, 1077 (9th Cir. 1999); 11 Rule 8, Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (providing that the district 12 court judge shall determine if an evidentiary hearing is required). 13 discretion is significantly circumscribed by § 2254(e)(2) of the AEDPA. 14 Taylor, 529 U.S. 420 (2000). 15 Section 2254 provides that: 16 17 18 (A) the claim relies on ­ 19 20 21 22 23 24 25 26 27 28 (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim w ould be sufficient to establish by clear and convincing evidence that but for constit utional error, no reasonable factfinder would have found t he applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2) (emphasis added). A s interpreted by the Supreme Court, subsection (e)(2) precludes an evident iary hearing in federal court only if t he failure t o develop a claim's factual basis is due to a "lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." - 18 Filed 09/30/2005 (i) a new rule of constitutional law, made ret roactive to cases on collateral review by the Supreme Court, that was previously unavailable; or If the applicant has failed to develop the factual basis of a claim in State court proceedings, the cour t s hall not hold an evidentiary hearing on the claim unless the applicant shows that ­ See Williams v. However, a judge's

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Williams , 529 U .S. at 432. "The purpose of the fault component of `failed' is to ensure the prisoner undertakes his own diligent s earch for evidence." Id. at 435. The Court found

that this rule served AEDPA's goal of furthering comity in that "federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Id.; see also Cardwell v. Netherland, 971 F. Supp. 997, 1008 (E.D. Va. 1997) ("Ordinarily, a § 2254 petition is limited to the factual record developed in state court proceedings"), aff'd Cardwell v. G reene, 152 F.3d 331 (4th Cir. 1998), overruled on other grounds, Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000). In

correlation, subsection (e)(2) allow s fact ual development when a petitioner diligently attempts to develop the fact ual bas is of a claim in state court and is "thwarted, for example, by the conduct of another or by happenstance was denied the opportunity to do so." Williams, 529 U.S. at 432; see Baja, 187 F.3d at 1078-79. In compliance with § 2254(e)(2), when the fact ual bas is for a particular claim has not been fully developed in state court, the first question in evaluat ing whether to grant an evidentiary hearing on the claim is whether the petitioner was diligent in attempting to develop its factual basis. See Baja, 187 F.3d at 1078 (quoting Cardwell v. Greene, 152 F .3d 331, 337 (4th Cir. 1998), overruled on other grounds, Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000)). The Supreme Court set an objective standard for determining "diligence" ­ whether a petitioner "made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Williams, 529 U.S. at 435. For examp le, w hen there is information in the record that w ould alert a reasonable attorney to the existence and importance of certain evidence, the attorney " fails " to develop the factual record if he does not make reasonable efforts to sufficiently investigate and present the evidence to the s tate court. See id. at 438-40 (counsel not diligent where he was on notice of possibly material evidence but conducted only a cursory investigation); Alley v. Bell, 307 F.3d 380, 390-91 (6th Cir. 2002) (petitioner not diligent where he knew of and raised claims of judicial bias and jury irregularities in state court, but failed to inves t igate all the factual grounds for such claims). - 19 Filed 09/30/2005

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Absent unusual circumstances , diligence requires "that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Williams, 529 U.S. at 437; see Bragg v. Galaza, 242 F.3d 1082, 1090 (9th Cir. 2001), amended on denial of reh'g, 253 F.3d 1150 (9th Cir. 2001) ("inactions show insufficient diligence" on ineffective counsel claim because petitioner did not request an evidentiary hearing, and brought claim only on appeal and not in a collateral p roceeding). What is more, the mere request for an evidentiary hearing may not be sufficient to establish diligence if a reas onable person would have t aken additional steps. See Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (petitioner requested hearing but found not diligent because he failed to present affidavits of family members that were eas ily obt ained without court order and with minimal expense); see also Koste v. Dormire, 345 F.3d 974, 985-86 (8th Cir. 2003) (p et it ioner not diligent w here, although he requested hearing, he made no effort to develop the record or assert any facts to support claim that his counsel was ineffective for knowing of and failing t o investigate his psychiatric condition), cert. denied, 541 U.S. 1011 (2004). If an

evident iary hearing is requested, a petitioner's inability to persuade a state court to conduct such a hearing does not in itself demonstrate a lack of diligence. See Cardwell, 152 F.3d at 338. In sum, if this Court determines that a petitioner has not been diligent in es t ablishing t he factual basis for his claims in state court, then the Court may not conduct a hearing unless the pet it ioner satisfies one of § 2254(e)(2)'s narrow exceptions. If, however, the

petitioner has not failed t o develop the factual basis of his claim in state court, the Court will then proceed to consider whether a hearing is appropriate or required under the criteria set forth by the Supreme Court in T ow ns end. (quoting Cardwell, 152 F.3d at 337). 372 U.S. 293; see Baja, 187 F.3d at 1078

A federal district court must hold an evidentiary

hearing in a § 2254 case when the facts are in dispute if (1) the petitioner "alleges facts which, if proved, would entitle him to relief," and (2) the state court has not "after a full hearing reliably found the relevant facts." Townsend, 372 U.S. at 312-13. In addition, the

Court established six circumstances under w hich t here is presumptively no "full and fair - 20 Filed 09/30/2005

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hearing" at the state level: (1) the merits of the factual dispute were not resolved in the state hearing; (2) t he s t ate factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the s t at e court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. See id. at 313. In any other case in which t he facts are in dispute and diligence has been established, the district court judge "has the power, constrained only by his sound discretion, to receive evidence bearing upon the applicant's constitutional claim." Id. at

318 (noting that if a "habeas ap p licant was afforded a full and fair hearing by the state court resulting in reliable findings, [the judge] may, and ordinarily should, accept the facts as found in the hearing"). Expansion of the Record Rule 7 of the Rules Governing Section 2254 Cases authorizes a federal habeas court to expand the record to include additional material relevant to the det ermination of the merits of a petitioner's claims. Rule 7 provides: The materials that may be required include letters predating the filing of the p etition, documents, exhibits, and answers under oat h t o w rit t en interrogatories propounded by the judge. Affidavits may also be submitted and considered as part of the record. Rule 7(b), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. T he p urpose of Rule 7 "is

23 to enable the judge to dispose of s ome habeas petitions not dismissed on the pleadings, 24 without the time and expense required for an evidentiary hearing." 25 Notes, Rule 7, 28 U.S.C. foll. § 2254; see also Blackledge v. Allison, 431 U.S. 63, 81-82 26 (1977). 27 Section 2254(e)(2), as amended by the AEDPA, limits a pet it ioner's ability to present 28 - 21 Filed 09/30/2005 A dvisory Committee

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new evidence through a Rule 7 motion to expand the record in the same manner as it does with regard to evidentiary hearings. See Coop er-Smith v. Palmateer, 397 F.3d 1236, 1241

(9th Cir. 2005) (holding that the conditions of § 2254(e)(2) generally apply to petitioners seeking relief based on new evidence, even when they do not seek an evidentiary hearing) (citing Holland v. Jackson, 124 S. Ct . 2736, 2737 (2004) (per curiam)). Thus, when a

petitioner seeks to introduce, through a Rule 7 motion, new affidavits and other documents never presented in state court for the purpose of establishing the fact ual p redicate of a claim, he must show bot h diligence in developing the factual basis in state court and relevancy of the evidence to his claim. If diligence is not shown, the requirements of

§ 2254(e)(2) must be satisfied before the Court can cons ider expansion of the record. To find otherwis e w ould allow circumvention of the AEDPA's restriction against federal habeas court s holding evidentiary hearings in cases where the petitioner is at fault for failing to develop the facts in state court. When a petitioner seeks t o expand the record for reasons other than to introduce evidence to bolster the merits of his claim, the s t rict ures of § 2254(e)(2) may not apply. See Boyko v. Parke, 259 F.3d 781, 790 (7th Cir. 2001) (finding it nonsensical to apply § 2254(e)(2) when expansion of the record is used for reasons other than to introduce new factual information on t he merits of a claim). For example, expansion of the record may be

ap p rop riate to cure omissions in the state court record, see Dobbs v. Zant, 506 U.S. 357, 359 (1993) (per curiam) (reversing for failure to supplement the record with a latediscovered trans crip t ); see also Rule 5, Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (directing answering party to submit portions of record it deems relevant), or to establish diligence pursuant to § 2254(e)(2). See Boyko, 259 F.3d at 792. In evaluating the instant motion, the Court must first determine whether Pet itioner is seeking expansion of the record to achieve the s ame end as an evidentiary hearing. so, If

t he Court must then assess whether Petitioner demonstrated diligence in developing

the factual basis of the claim in state court and, if not, whether he meet s t he requirements of § 2254(e)(2). In addition, the Court must determine whether the proffered evidence is - 22 Filed 09/30/2005

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relevant to a determination of the claim's merits, see Rule 7(a), 28 U.S.C. foll. § 2254, and whether the new evidence fundamentally alters the claim such that it is rendered unexhausted. See Vasquez, 474 U.S. at 258-59. If Petitioner is seeking expansion for some ot her purpose, such as curing omissions from the state court record, establishing cause and prejudice or a fundamental miscarriage of justice for a procedural default, or demonstrating diligence for purposes of show ing t he inapplicability of Court need only evaluate relevance. Discovery Rule 6(a) of the Rules Governing Section 2254 Cases provides t hat "[a] judge may, for good cause, authorize a party to conduct discovery under t he Federal Rules of Civil Procedure, and may limit the extent of discovery." Rule 6(a), 28 U.S.C. foll. § 2254 § 2254(e)(2), the

(emphasis added). Thus, unlike the usual civil litigant in federal court, a habeas p etitioner is not entitled to discovery " as a matter of ordinary course," Bracy v. Gramley, 520 U.S. 899, 904 (1997); see also Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999), and a habeas court should not allow a habeas petitioner "to use federal discovery for fishing expeditions to investigate mere speculation." Calderon v. United States Dist. Court for the Northern Dist. of Cal. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996); see also Aubut v. State of M aine, 431 F.2d 688, 689 (1st Cir. 1970) ("[h]abeas corp us is not a general form of relief for those w ho seek to explore their case in search of its existence"). Pursuant to Bracy , w het her a petitioner has established "good cause" for discovery requires a habeas court to determine the essential elements of the p et itioner's substantive claim and evaluate whether "specific allegations before the court show reason t o believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief." Id. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). MOTIONS DIS CUS S ION The Court now assesses whether expans ion of the record, discovery and/or an evidentiary hearing should be granted with respect to exhausted claims for which

evidentiary development is sought: Claims 1 (in part), 2, 4, 5 (in part), 6 (in part), 7 (in part), - 23 Filed 09/30/2005

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42, 45 and 48.

P etitioner seeks to expand the record with Exhibit 3 only in support of

procedurally barred claims; t herefore, expansion as to that exhibit will be denied. Further, the parties agree that Exhibits 9 and 11 are already part of the state court record. (See PR doc. 7, App. Tab 8, 9, 11.) Accordingly, expansion as to those exhibits will be denied as moot. Petitioner does not argue that he can meet the statutory exceptions set forth in §

2254(e)(2)(A) & (B); therefore, the Court may not grant an evidentiary hearing on any claims for which the Court determines Petitioner "failed to develop t he factual basis." 28 U.S.C. § 2254(e)(2). Claim 1 (in part) Claim 1 alleges that the trial court violat ed P et it ioner's right to a fair trial by denying his motion for a change of venue based on pretrial p ublicit y . (Dkt. 40 at 43-49.) Petitioner seeks to expand the record with Exhibit 1, a collection of newspaper articles about t he case published before, during and after trial. hearing in support of this claim. The Court finds that Petitioner is not entit led to expansion of the record or an evidentiary hearing because he was not diligent in developing this evidence in state court. On A pril 15, 1992, approximately six weeks prior to trial, Petitioner filed a motion for change of venue based on pretrial publicity and requested an evidentiary hearing. (CROA 92.) In the motion, P et itioner stated that "[t]he records of all the media in M ohave County has [sic] been subpoenaed for this hearing and has [sic] been incorporated herein by reference and made a part hereof."12 (Id. at 2.) T he t rial court held an evidentiary hearing on the He also s eeks discovery and an evidentiary

motion on April 22, 1992, during which Petitioner presented copies of numerous art icles

Petitioner's counsel issued subpoenas duces tecum to the Kingman Standard; KBBC Radio Station, Lake Havasu City; K G M N -F M Radio Station, Kingman; KFWJ Radio Station, Lake Havasu City; Lake Havasu City Herald; Today News, Lake Havasu City; KNLB-91 FM Christian Radio, Lake Havasu City; KZUL-FM , Lake Havasu City; K-LUK LUCKY 108 FM , Bullhead City; K-West F M 98, Bullhead City; M ohave Valley News, Bullhead City; KM OH-TV 6, Bullhead City; KAAA-AM KZZZ-FM Radio Stations, Kingman; and the Kingman Daily M iner. Document 90 - 24 Filed 09/30/2005 Page 24 of 37

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published in regional newspapers and testimony from David Hawkins, who worked for five northern Arizona radio stations and at times for the Arizona Republic, a statewide newspaper. (RT 4/22/92 at 13-48, 98-111; CROA Exs. C-F, H-I.)13 At the hearing, Petitioner stated that other out let s had been subpoenaed and he reserved the right to place additional evidence in the record based on responses to the subpoenas. (RT 4/22/92 at 39, 99.) The trial court found t hat P etitioner failed to carry the burden of proving that a change of venue was necessary to seat a fair and impartial jury, but reserved ruling pending jury selection. (Id. at 110-11.) Although the motion for change of venue was renewed more

than a month later at the clos e of jury selection, Petitioner did not proffer additional evidence or seek leave t o further develop the factual basis for this claim. (RT 5/29/92 at 24.) In addition, Petitioner did not attempt to further develop t he factual basis of this claim in state post-conviction proceedings. Accordingly, the Court finds that Petitioner was not

diligent and his motions for an evidentiary hearing and expansion of the record will be denied.14 Petitioner als o s eeks leave to subpoena unidentified media outlets regarding pretrial publicity and to interview jurors about their biases. Petitioner's request lacks specificity.

M oreover, as discussed above, because Petitioner was not diligent in develop ing this evidence in state court, the Court would not be able to consider any newly discovered evidence w it h respect to the merits of the claim. Boyko, 259 F.3d at 792 (finding that

discovery should not be allow ed to augment the merits of a petitioner's claims unless he was diligent); M urphy v. Bradshaw, No. C-1-03-053, 2003 WL 23777736, *2 (S.D. Ohio 2003)

"CROA Exs." refers to enumerated exhibits included in a one-volume "Index of Exhibits of Record of Appeal to the Supreme Court of Arizona" provided as part of the state court record in Robert M urray's habeas action, CV 99-1812-PHX-DGC. The Court notes that only pretrial publicity is relevant to this claim. See Casey v. M oore, 386 F.3d 896, 906-909 (9th Cir. 2004) (citing Sheppard v. M axwell, 384 U.S. 333, 363 (1966), Patton v. Yount, 467 U.S. 1025, 1033 (1984), Rideau v. Louisiana, 373 U.S. 723 (1963), and Irvin v. Dowd, 366 U.S. 717, 722 (1961)). To the extent Petitioner seeks to expand the record with articles published after jury selection, they are not relevant. Document 90 - 25 Filed 09/30/2005 Page 25 of 37
14

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("there cannot be good cause to discover facts which could not be presented because a petition is barred from an evidentiary hearing on those facts under 28 U.S.C. § 2254(e)(2)"); Charles v. Baldwin, No. CV-97-380-ST, 1999 WL 694716, at *2 (D. Or. Aug. 2, 1999) (no good cause for discovery to locate evidence in support of the merits of a claim unless pet it ioner first satisfies § 2254(e)(2)). The Court finds that Petitioner has not established good cause to conduct the requested discovery, and the motion will be denied. Claim 2 Claim 2 alleges t hat Petitioner's right to a fair and impartial jury was violated by the trial court's refusal to sequester the jury during voir dire, trial and deliberations. (CROA

141; RT 5/27/92 at 21.) Petitioner s eeks t o exp and the record in support of this claim with Exhibit 1, discussed above. He also seeks discovery and an evidentiary hearing. Petitioner did not proffer any evidence or attempt to otherwise develop the record in support of his s eques t ration request in the trial court. Further, he did not develop the factual basis for this claim in state post-conviction proceedings . suggest the materials in Exhibit 1 were not P etitioner does not

available during state proceedings.

Accordingly, the Court finds that Petitioner was not diligent and his motions to expand the record and for an evidentiary hearing will be denied. Petitioner seeks leave to depose: (1) an unidentified juror, whose spouse allegedly sat throughout the trial, including hearings held outside the presence of the jury; (2) another unidentified juror who allegedly had an ex parte discussion with the trial judge; and (3) other jurors who may have overheard deputies and the pros ecut or discussing the case. (Dkt. 72 at 19.) Petitioner fails to provide any factual basis for t he requested in

discovery.

M oreover, as discussed above, because Petitioner was not diligent

developing this evidence in state court, the Court would not be able to consider any newly discovered evidence with respect to the merits of t he claim. See Boyko, 259 F.3d at 792; M urphy, 2003 WL 23777736, at *2; Charles, 1999 WL 694716, at *2. The Court finds no good cause, and Petitioner's motion for discovery will be denied.

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Claims 4 and 5 (in part) Claims 4 and 5 allege violations of Petit ioner's Sixth Amendment right to a trial jury drawn from a fair cross-section of the community and his Fourteent h A mendment right to equal protection. Claim 4 alleges that drawing the master jury pool from an eighteen-

month- old list of licens ed drivers violated his rights by excluding "young" persons of approximately the same age as Petitioner who had become licens ed after that list was compiled but before his trial. (Dkt. 40 at 57.) He also alleges that the trial court's refusal to delay trial until after the ten-day state statutory period had run for prospective jurors to mail back questionnaires violated his rights by automatically excluding persons from rural areas with purportedly slower postal s ervice. (Dkt. 40 at 58-59.) Claim 5 alleges that the M ohave County Jury Commissioner, Linda Seapy, improperly excused or disqualified prospective jurors in the master jury pool in violation of Petitioner's right to a jury drawn from a fair cros s -s ection of the community. In particular, that she used subjective criteria in reviewing their responses to the questionnaire concerning their availability to serve as jurors or to be excused from serving, such as their elderly age, responsibility for the care of young children, or a mental or physical disability. (Dkt. 40 at 59-62.) Further, he alleges that Seapy improperly excused prospective jurors who expressed religious beliefs against sitting in judgment of others. (Id. at 60.) Pet it ioner also alleges that Seapy improperly

delegated duties to her deputy clerk, failed to follow-up with persons who had not returned juror questionnaires, and failed t o verify the accuracy of juror returns. (Id. at 62.)

Petitioner seeks discovery, expansion of the record and an evidentiary hearing on these claims. To prevail on a fair cross-section claim, a litigant must prove: "(1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the represent at ion of this group in venires from which juries are selected is not fair and reasonable in relation t o t he number of such persons in the community; and (3) that this