Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Roger Wayne Murray, Petitioner, vs. Dora B. Schriro, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) No. CV-03-775-PHX-DGC DEATH PENALTY CASE MEMORANDUM OF DECISION AND ORDER

Before the Court is Petitioner Roger Wayne Murray's amended petition for writ of habeas corpus. Dkt. 40.1 Petitioner alleges, pursuant to 28 U.S.C. § 2254, that he was convicted and sentenced to death in violation of the United States Constitution. The amended petition raised fifty-six claims for relief. The parties have completed their briefing. Dkts. 111, 114, 117. Petitioner voluntarily withdrew Claims 43, 47, 49-52 and 54-56 as duplicative of other claims. Dkt. 56. In an order denying Petitioner's requests for evidentiary development, the Court dismissed Claims 1 (in part), 5 (in part), 6 (in part), 7 (in part), 23, 29-33, 35, 36, 40/41(in part), and 44 as procedurally barred, Claims 4, 5, 34, 37 (in part), 40/41 (in part), 42, and 48 on the merits, and Claim 37(a) as premature. Dkt. 90. This Order addresses the procedural status and/or the merits of the remaining claims and concludes, for the reasons set forth below, that Petitioner is not entitled to habeas corpus relief.

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"Dkt." refers to the documents in this Court's case file.
Document 100 Filed 05/30/2008 Page 1 of 64

Case 2:03-cv-00775-DGC

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BACKGROUND Dean Morrison, age 65, and Jacqueline Appelhans, age 60, lived at and operated a store and restaurant at Grasshopper Junction, a rural area outside of Kingman, Arizona.2 Around 8:30 or 9:00 on the morning of May 14, 1991, a delivery man arrived at their property and found their bodies lying face down and clad in bathrobes on the living room floor of Morrison's residence. Both victims had been shot multiple times in the head. Sometime before 8:00 that morning, police had found one of Morrison's tow trucks abandoned on Interstate 40 westbound near Kingman. At approximately 8:00 that morning, police also had arrested Petitioner and his older brother, Robert, on unrelated charges. The arrests occurred on eastbound I-40 near Holbrook, Arizona. When arrested, the Murrays had in their possession firearms and other evidence linking them to the murders at Grasshopper Junction. When officers arrived to investigate the murder scene, they found a revolver on the couch and a .22 semiautomatic rifle leaning against the wall. Shotgun pellets and various .22- and .38-caliber bullets, casings, and shells were found near the bodies. Drawers in the living room had been pulled open and the contents strewn about. The bedrooms and kitchen were ransacked. A cushion cover was missing from the couch. There was a .303 rifle on a bed and $172 on a desk chair. Loose change and a single roll of coins were on the kitchen floor. Morrison's wallet, undisturbed in the pocket of his pants, contained $800. The drawer from the store's cash register had been removed. Packs of Marlboro cigarettes were left in paper bags in the store, and the gasoline register was turned on. Police found Morrison's glasses, a flashlight, and a set of keys on the patio of the store. Three live .38-caliber bullets were found near the gas pumps. Morrison's sister found a

Except where otherwise indicated, this factual summary is taken from the decision of the Arizona Supreme Court in State v. Murray, 184 Ariz. 9, 20-21, 906 P.2d 542, 553-54 (1995). -2Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 2 of 64

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fired .25 bullet in the pantry two weeks after the crime. Detective Dale Lent of the Mohave County Sheriff's Department documented the tracks around the scene. He found four sets of footprints, two of which were made by the victims. Of the other sets, one was made by a pair of cowboy boots, consistent with those worn by Robert Murray, the other by a pair of tennis shoes, consistent with those worn by Petitioner. Officers photographed and sketched the footprints. Other than the shoe prints of the officers and victims, the Murrays' footprints were the only prints to enter or leave the crime scene. One trail showed three sets of prints: the tennis shoes, the boots, and Morrison's slippers. The prints suggested that Morrison had resisted his attackers. Rolled and loose coins were found in the courtyard amidst footprints of the victims and the Murrays. Both brothers' footprints, as well as Morrison's, were found near a backhoe, along with tire tracks later determined to be from the tow truck found on westbound I-40. On the morning of their arrest, the Murrays were driving eastbound on I-40 in a 1988 Ford Tempo with Alabama plates. For reasons unrelated to the homicide and not disclosed to the jury, an officer attempted to stop them. With Robert driving, the Murrays fled in their car, reaching speeds in excess of 85 miles an hour, leaving the highway, running a manned and armed roadblock, and stopping off-road only when a wash blocked their way. As they exited the vehicle, Robert Murray tossed away a .38 revolver that contained four bullets; Petitioner threw out a loaded .25 semiautomatic pistol. Robert Murray had two spent shotgun shell casings in his hip pocket. Inside the vehicle, officers found a loaded twelve gauge sawed-off shotgun along with live double-ought buckshot shells. There was also a checkered cushion cover, matching the cushion on Morrison's couch, which contained rolled coins stamped with the name and address of Morrison's business, along with a pillow case containing approximately $1400 in coin rolls and $3300 in cash. Gloves were found, as well as a receipt from the Holiday House Motel in Kingman, dated May 12, 1991. Motel records -3Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 3 of 64

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showed that the brothers had listed a 1988 Ford on the hotel registration card and had checked out on May 13. A road atlas was found in the car with circles were drawn around the locations of two rural shops or restaurants, including Grasshopper Junction, that were not otherwise indicated on the map. Keys recovered from Robert Murray's pocket were later determined to fit a 1991 Chevy Pickup that was on Morrison's property. A scanner found in the Murrays' car fit the empty bracket of the tow truck found on westbound I-40. Morrison's autopsy revealed that he had suffered a shotgun blast that entered behind his left ear from a distance of about three feet, shattering his skull. He also suffered two gunshot wounds from a large caliber pistol, one entering the left lower neck, the other the right temple. A .38 bullet was recovered from the back of his neck. Large caliber buckshot was removed from his head. A fired .38 bullet was found next to Morrison. Morrison also had lacerations and abrasions on his face, elbow, forearm, knee, and thigh. These injuries occurred in the same time frame as the gunshot wounds. Appelhans was shot with at least three different guns. Her head had been shattered by a blast from a shotgun. Brain and scalp tissue were found on the couch and the surrounding area. Two .38-caliber slugs were removed from her skull. She also suffered .22-caliber wounds that entered at the back of the neck and exited her face. A fragment of one of the .22 bullets was found in her right hand. An aspiration hemorrhage in her lungs suggested a lapse of time between the initial gunshot and death. The .38-caliber bullets were a possible cause of death, and the shotgun blast was clearly lethal. The effect of the .22 shots could not be determined, and the autopsy did not reveal the sequence of the shots. Casings found at the crime scene and in Robert Murray's pocket were fired by the three guns found with the Murrays. Other bullets, slugs, and casings were inconclusive as to the weapons that fired them; some had characteristics that were consistent with being fired by the weapons. Human blood and tissue were found on Robert Murray's shirt, on his brother's pants, -4Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 4 of 64

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and on the cushion cover. The blood on Petitioner's pants could have come from either victim or Robert Murray, but not from Petitioner. The blood on Robert Murray's shirt was consistent with that of either victim, but not with the blood of Petitioner or Robert. The blood on the cushion could have come from Appelhans, but not from Morrison or the Murrays. DNA tests were not conducted. The brothers were tried together. On June 12, 1992, a jury convicted them of the first degree murders of Morrison and Appelhans and the armed robbery of Morrison. The first degree murder verdicts were unanimous for both premeditated and felony murder. Following bifurcated sentencing hearings, the trial court found that the State had proven three aggravating circumstances as to each defendant: the murders were committed for pecuniary gain, pursuant to A.R.S. § 13-703(F)(5); the murders were especially heinous, cruel or depraved, under § 13-703(F)(6); and the defendants committed multiple homicides, under § 13-703(F)(8). With respect to each defendant, the trial court found insufficient mitigation to warrant leniency. The Arizona Supreme Court affirmed the convictions and death sentences. State v. Murray, 184 Ariz. 9, 906 P.2d 542 (1995). On March 9, 1999, Petitioner filed a petition for postconviction relief ("PCR"). The PCR court3 summarily rejected or found precluded most of Petitioner's claims, but it appointed a psychologist and neuropsychologist 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 mitigation at sentencing. PCR Order filed 1/10/00.4 Following examination by the appointed experts, Petitioner notified The Honorable James E. Chavez presided over both the trial and the PCR proceedings. "PCR" refers to documents contained in the three-volume record from Petitioner's post-conviction proceedings (Case No. Mohave CR-13057). "PR doc." refers to enumerated documents contained in the three-volume record on appeal from Petitioner's post-conviction proceedings (Case No. CR 01-0146-PC). "ROA" refers to the one-volume record in -5Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 5 of 64
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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 Supreme Court summarily denied a Petition for Review except as to Petitioner's claim that he was entitled to a jury determination of aggravating factors. PR docs. 29, 30. With respect to that claim, the Arizona Supreme Court consolidated review with claims of other similarly-situated inmates and subsequently denied relief, see State v. Towery, 204 Ariz. 386, 64 P.3d 828 (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 these proceedings. Dkt. 1. PRINCIPLES OF EXHAUSTION AND PROCEDURAL DEFAULT A writ of habeas corpus may not be granted unless it appears that a petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991). To exhaust state remedies, a petitioner must "fairly present" the operative facts and the federal legal theory of his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971). In Arizona, there are two procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and post-conviction relief proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner is precluded from relief on any claim that could have been raised on appeal or in Petitioner's direct appeal (Case No. CR-92-0441-AP). "RT" refers to the reporter's transcripts. "ME" refers to the minute entries of the trial court. -6Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 6 of 64

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a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a) may be avoided only if a claim falls within certain exceptions (subsections (d) through (h) of Rule 32.1) and the petitioner can justify why the claim was omitted from a prior petition or not presented in a timely manner. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(b), 32.4(a). A habeas petitioner's claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. The procedural bar relied on by the state court must be independent of federal law and adequate to warrant preclusion of federal review. See Harris v. Reed, 489 U.S. 255, 262 (1989). Arizona's preclusion rule is independent of federal law, see Stewart v. Smith, 536 U.S. 856, 860 (2002) (per curiam), and the Ninth Circuit has repeatedly determined that Arizona regularly and consistently applies its preclusion rules such that they are an adequate bar to federal review of a claim. See Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998) (finding Rule 32.2(a)(3) regularly followed and adequate); Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997) (same). Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Coleman, 501 U.S. at 735 n.1; see also Ortiz, 149 F.3d at 931 (district court must consider whether the claim could be pursued by any presently available state remedy). If no remedies are currently available pursuant to Rule 32, the claim is "technically" exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1; see also Gray, 518 U.S. at 16162. 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 a procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the -7Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 7 of 64

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failure to properly exhaust the claim in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750. Petitioner does not assert that either cause and prejudice or a fundamental miscarriage of justice excuses the procedural default of any claim at issue in this Order. AEDPA STANDARD FOR RELIEF Petitioner's habeas claims are governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA established a "substantially higher threshold for habeas relief" with the "acknowledged purpose of `reducing delays in the execution of state and federal criminal sentences.'" Schriro v. Landrigan, 127 S. Ct. 1933, 1939-40 (2007) (quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003)). The AEDPA's "`highly deferential standard for evaluating statecourt rulings' . . . demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh, 521 U.S. at 333 n.7). Under the AEDPA, a petitioner is not entitled to habeas relief on any claim "adjudicated on the merits" by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). The phrase "adjudicated on the merits" refers to a decision resolving a party's claim which is based on the substance of the claim rather than on a procedural or other nonsubstantive ground. Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). The relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 (9th Cir. 2005). -8Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 8 of 64

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"The threshold question under AEDPA is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final." Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under subsection (d)(1), the Court must first identify the "clearly established Federal law," if any, that governs the sufficiency of the claims on habeas review. "Clearly established" federal law consists of the holdings of the Supreme Court at the time the petitioner's state court conviction became final. Williams, 529 U.S. at 365; see Carey v. Musladin, 127 S. Ct. 649, 653 (2006); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). Habeas relief cannot be granted if the Supreme Court has not "broken sufficient legal ground" on a constitutional principle advanced by a petitioner, even if lower federal courts have decided the issue. Williams, 529 U.S. at 381; see Musladin, 127 S. Ct. at 654; Casey v. Moore, 386 F.3d 896, 907 (9th Cir. 2004). Nevertheless, while only Supreme Court authority is binding, circuit court precedent may be "persuasive" in determining what law is clearly established and whether a state court applied that law unreasonably. Clark, 331 F.3d at 1069. The Supreme Court has provided guidance in applying each prong of § 2254(d)(1). The Court has explained that a state court decision is "contrary to" the Supreme Court's clearly established precedents if the decision applies a rule that contradicts the governing law set forth in those precedents, thereby reaching a conclusion opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Williams, 529 U.S. at 405-06; see Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). In characterizing the claims subject to analysis under the "contrary to" prong, the Court has observed that "a run-of-the-mill state-court decision applying the correct legal rule to the facts of the prisoner's case would not fit comfortably within § 2254(d)(1)'s `contrary to' clause." Williams, 529 U.S. at 406; see Lambert, 393 F.3d at 974. Under the "unreasonable application" prong of § 2254(d)(1), a federal habeas court may grant relief where a state court "identifies the correct governing legal rule from [the -9Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 9 of 64

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Supreme] Court's cases but unreasonably applies it to the facts of the particular . . . case" or "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent "unreasonable" under § 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but "objectively unreasonable." Id. at 409; Landrigan, 127 S. Ct. at 1939; Visciotti, 537 U.S. at 25. Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state court decision was based on an unreasonable determination of the facts. Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (Miller-El II). A state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El, 537 U.S. 322, 340 (2003) (Miller-El I); see Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). In considering a challenge under § 2254(d)(2), state court factual determinations are presumed to be correct, and a petitioner bears the "burden of rebutting this presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Landrigan, 127 S. Ct. at 1939-40; Miller-El II, 545 U.S. at 240. However, it is only the state court's factual findings, not its ultimate decision, that are subject to 2254(e)(1)'s presumption of correctness. Miller-El I, 537 U.S. at 341-42 ("The clear and convincing evidence standard is found in § 2254(e)(1), but that subsection pertains only to state-court determinations of factual issues, rather than decisions."). As the Ninth Circuit has noted, application of the foregoing standards presents difficulties when the state court decided the merits of a claim without providing its rationale. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). In those circumstances, a federal court independently reviews the record to assess whether the - 10 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 10 of 64

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state court decision was objectively unreasonable under controlling federal law. Himes, 336 F.3d at 853; Pirtle, 313 F.3d at 1167. Although the record is reviewed independently, a federal court nevertheless defers to the state court's ultimate decision. Pirtle, 313 F.3d at 1167 (citing Delgado, 223 F.3d at 981-82); see also Himes, 336 F.3d at 853. Only when a state court did not decide the merits of a properly raised claim will the claim be reviewed de novo, because in that circumstance "there is no state court decision on [the] issue to which to accord deference." Pirtle, 313 F.3d at 1167; see also Menendez v. Terhune, 422 F.3d 1012, 1025-26 (9th Cir. 2005); Nulph v. Cook, 333 F.3d 1052, 1056-57 (9th Cir. 2003). DISCUSSION I. PROCEDURAL DEFAULT ANALYSIS Respondents contend that Claims 24, 26, 27, 28, 39, and 53 were not properly exhausted. The Court will address the procedural status of those claims, as well as the claims withdrawn from the amended petition. Respondents concede that Claims 1, 2, 3, 6, 7, 10-18, 22, 38, and 45 were, in whole or in part, exhausted in state court. Dkt. 46. The Court will discuss the merits of those claims later in this Order. A. Claims 24, 26, 27, 28, 39, and 53

These claims, which primarily challenge aspects of Arizona's death penalty statute, were raised in Petitioner's first PCR proceeding. PCR pet. filed 3/5/99 at 24-30; PR doc. 7 at 32. The PCR court found the claims precluded under Rule 32.2(a)(3) because they could have been raised on direct appeal. PCR order filed 1/10/00. Because the Arizona Supreme Court summarily denied review of the claims (PR doc. 30), this Court "looks through" that denial to the PCR court's decision as the last reasoned state court ruling. See Ylst, 501 U.S. at 803. Thus, the claims are procedurally defaulted pursuant to the PCR court's Rule 32.2(a)(3) finding of precludion. Coleman, 501 U.S. at 729-30. Petitioner has not attempted to show cause and prejudice or a fundamental miscarriage of justice to excuse the default. Accordingly, Claims 24, 26, 27, 28, 39, and 53 are dismissed as procedurally

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barred.5 B. Claims withdrawn from the amended petition

In his traverse, Petitioner requested that the Court allow him to "dismiss without prejudice" Claims 8, 9, 20, 21, 25, and 46.6 Dkt. 56 at 21, 28-30, 46. These claims are procedurally defaulted. Petitioner raised Claims 8 and 9 on direct appeal. Opening Br. at 25-30. The claims challenged the trial court's rulings on Detective Lent's testimony, but alleged only violations of state evidentiary rules, not federal law. Id. Petitioner failed to present Claims 20, alleging improper use of victim impact evidence, and 25, challenging the burden of proof set forth in Arizona's death penalty statute, in state court. He raised Claim 21, challenging the state courts' application of the aggravating factors, on direct appeal, but did not present a federal constitutional claim, arguing only that the factors had not been established pursuant to state law. Id. at 55-60. Finally, Petitioner raised Claim 46, alleging IAC at sentencing based on counsel's failure to elicit testimony from his psychiatric expert, in his PCR petition, but did not include the claim in his petition for review to the Arizona Supreme Court. PCR pet. filed 3/5/99 at 12-15; PR doc. 7. Petitioner does not assert that any of the exceptions to Rules 32.2(a)(3) and 32.4 apply to these claims. Therefore, he is now barred from obtaining relief on the claims in state court. The claims are technically exhausted but procedurally defaulted. Petitioner has not attempted to show cause and prejudice or a fundamental miscarriage of justice to excuse the default. Accordingly, Claims 8, 9, 20, 21, 25, and 46 are dismissed as procedurally barred.

Although they are procedurally barred, the Court has reviewed the claims and determined that they are without merit, as is Claim 25. See Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998). In its Order denying Petitioner's motion for evidentiary development, the Court considered the procedural status of several other withdrawn claims. Dkt. 90 at 9-14; see Dkt. 71. - 12 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 12 of 64
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II.

MERITS ANALYSIS A. Claim 1

Petitioner alleges that his rights under the Sixth and Fourteenth Amendments were violated by the trial court's denial of his motion to change venue. Dkt. 40 at 43-49; see Dkt. 56 at 7-10. 1. Background

On April 15, 1992, Petitioner filed a motion for change of venue arguing that he would be unable to receive a fair trial in Mohave County based on pre-trial publicity. ROA 92. The trial court held an evidentiary hearing on April 22, 1992. At the hearing, David Hawkins, a news director and reporter at radio stations in Mohave County, provided the scripts of the approximately sixty news reports he had written about the case in the year since the murders. ROA, Index of Exhibits, 4/22/92. Hawkins also described his observations of the community's feeling about the case, testifying that people were angry about what had happened to the victims. RT 4/22/92 at 24. He also indicated that, based on his contacts with a "couple dozen" individuals, mostly people in the legal community, the general opinion was that the Murrays were guilty of the murders. Id. at 24-25. Hawkins was unable to provide information regarding the circulation of the newspapers or the listening audience of the radio stations. Id. at 38-39. Along with the news scripts prepared by Hawkins, defense counsel submitted copies of eight articles from the Kingman Daily Miner newspaper. ROA, Index of Exhibits, 4/22/92. John Collier Freeman, an investigator for the Mohave County Legal Defender's Office, also testified at the hearing. According to Freeman, in the course of his investigative duties he had spoken about the case to approximately 100 people in the county (RT 4/22/92 at 47) and had received a number of unsolicited comments on the case from a cross-section of the community (id. at 42-43). Freeman testified that most of the people who expressed an opinion believed that the brothers were guilty. Id. at 43-44. At the close of the hearing, defense counsel asked the court to defer ruling on the - 13 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 13 of 64

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motion until the results of the juror questionnaires were available. Id. at 102. While agreeing to reserve its ruling, the court noted: Well, based on the evidence I have heard today, I'm not convinced that a change of venue is required. First of all, this is ­ probably most people would call this a rural county, but I agree with the State, there are three separate metropolitan areas. There is an abundance of news sources in those areas, and I'm not convinced that we cannot find, out of the population of this county, a fair and impartial jury. . . .[I]f we have difficulty finding a jury out of the jury pool, then I may take up that motion again, but based on the evidence I've heard today I don't think the defendants have carried the burden of proof. Id. at 110-11; see ME 4/22/92 at 2. After voir dire of the jury panel, the trial court again denied the request for a change of venue, explaining: I don't see that there's any need for further discussion on it. We were able to impanel a jury. My assessment is probably not real accurate, but my recollection is that there were probably half the people or less that knew about the case, and most of them had trouble recounting much about it. So, jury selection went ­ was much easier than I anticipated based on the amount of media coverage. RT 5/29/92, Vol. II, at 24. On direct appeal, the Arizona Supreme Court rejected Petitioner's claim that he was entitled to a change of venue, finding that he had demonstrated neither presumed nor actual prejudice resulting from pretrial publicity. Murray, 184 Ariz. at 26, 906 P.2d at 559. In rejecting Petitioner's claim of presumed prejudice, the court explained: For a court to presume prejudice, defendant must show "pretrial publicity so outrageous that it promises to turn the trial into a mockery of justice or a mere formality." Bible, 175 Ariz. at 563, 858 P.2d at 1166. To reach a conclusion on presumed prejudice, we review the entire record, without regard to the answers given in voir dire. Id. at 565, 858 P.2d at 1168. Defendants did not meet their burden of proof to show that "the publicity has been so extensive and so prejudicial as to create the probability that [they] will be denied a fair trial." State v. Smith, 116 Ariz. 387, 390, 569 P.2d 817, 820 (1977). Defendants called a news reporter and investigator as witnesses before trial to attempt to show that pretrial publicity prejudiced defendants because various people in the community had formed opinions about their guilt or innocence. However, they failed to show what pretrial publicity was so outrageous, resulting in a trial that was "utterly corrupted." Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). - 14 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 14 of 64

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Id. The court also found that Petitioner failed to show actual prejudice because only those prospective jurors who indicated that they could set aside the publicity and decide the case on the evidence remained on the jury panel, and the jury was warned repeatedly to avoid media coverage of the trial. Id. 2. Analysis

A criminal defendant is entitled to a fair trial by "a panel of impartial, `indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961). "[I]f pretrial publicity makes it impossible to seat an impartial jury, then the trial judge must grant the defendant's motion for a change of venue." Casey, 386 F.3d at 906 (citing Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir. 1988)). The Supreme Court has discussed two types of prejudice resulting from pretrial publicity: presumed prejudice, where the setting of the trial is inherently prejudicial, and actual prejudice, where voir dire is inadequate to offset extensive and biased media coverage. See Murphy v. Florida, 421 U.S. 794, 798 (1975). Petitioner appears to be arguing only that the state courts should have found presumed prejudice.7 A court presumes prejudice only in the face of a "trial atmosphere utterly corrupted by press coverage," Dobbert v. Florida, 432 U.S. 282, 303 (1977), or a "wave of public passion that would make a fair trial unlikely by the jury," Patton v. Yount, 467 U.S. 1025, 1040 (1984). The presumption of prejudice is "rarely applicable and is reserved for an `extreme situation.'" Harris, 885 F.2d at 1361 (internal citations omitted). The Supreme Court has found presumed prejudice in only three cases: Rideau v. Louisiana, 373 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532, 536 (1965); and Sheppard v. Maxwell, 384 U.S. 333 (1966). While Petitioner's case generated substantial media interest, the nature of the coverage is distinguishable from the publicity present in cases where prejudice has been

Petitioner does not appear to argue actual prejudice. This Court finds, nonetheless, that the decision of the Arizona Supreme Court on direct appeal rejecting actual prejudice was neither contrary to nor an unreasonable application of clearly established federal law. - 15 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 15 of 64

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presumed. Most significantly, the media coverage of Petitioner's case was neither as pervasive nor as inflammatory as in cases where the Supreme Court found presumptive prejudice, including Rideau and Sheppard, where the Court overturned state-court convictions because the trial atmosphere had been "utterly corrupted" by the media.8 Murphy, 421 U.S. at 798. In Rideau, the defendant's detailed twenty-minute confession was broadcast on television three times. 373 U.S. at 724. In a community of 150,000, nearly 100,000 people saw or heard the broadcast. Id. "What the people of Calcasieu Parish saw on their television sets was Rideau, in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder, in response to leading questions by the sheriff." Id. at 725. As the Supreme Court explained, the televised confession "was Rideau's trial," and "[a]ny subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality." Id. at 726 (emphasis added). In Sheppard, "massive, pervasive and prejudicial publicity" prevented the defendant from receiving a fair trial. 384 U.S. at 335. Much of the publicity was not fact-based or objective, but sensational and openly hostile. For example, articles "stressed [Sheppard's] extra marital love affairs as a motive for the crimes," while editorials characterized him as a liar and demanded his arrest. Id. at 340-341. Other news stories described evidence that was never produced at trial. Id. at 340.

In the third case, Estes, the Court found presumptive prejudice based on the trial's carnival-like atmosphere. A pretrial hearing was televised live and then replayed, with the broadcasts reaching 100,000 viewers. Estes, 381 U.S. at 550. During the hearing, "the courtroom was a mass of wires, television cameras, microphones and photographers. The petitioner, the panel of prospective jurors, who were sworn the second day, the witnesses, and the lawyers were all exposed to this untoward situation." Id. at 550-51. The Supreme Court found that such media intrusion was inherently prejudicial due to its effect on the witnesses, the judge, the defendant, and, most significantly, on the "televised jurors." Id. at 545. Such intrusive courtroom coverage is not an issue in Petitioner's case. - 16 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 16 of 64

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In support of this claim, Petitioner cites Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985), in which the Eleventh Circuit found presumed prejudice based on pretrial publicity. Dkts. 40 at 48, 56 at 7-8. The publicity at issue in Coleman, however, is clearly different in both quantity and quality from the media coverage of the Murrays' case. In Coleman, four defendants were charged with a series of brutal crimes culminating in the execution-style murder of six members of a family. 778 F.2d at 1488. The trial venue was a rural county of approximately 7,000. Id. at 1491. The victims were prominent and popular members of the community from which the jury pool was selected, and it was revealed at voir dire that several of the seated jurors personally knew the victims and one had attended the funeral of five of the victims. Id. at 1539. At an evidentiary hearing held on remand, the petitioner presented the court with more than 150 newspaper articles written about his case before or during his trial, many of which were hostile and inflammatory and one of which included a statement by the county sheriff that he would like to "precook" the petitioner before he was electrocuted; he also offered witness statements indicating that the case was a main topic of conversation for an extended period of time. Id. at 1491-1537. Local citizens and reporters testified that the community had irrevocably made up its mind as to the guilt of the defendants and the appropriate penalty. Id. at 1539. In sum, "everyone" in the close-knit community from which the jury was drawn "knew that [the defendants] were guilty and everyone knew they should be electrocuted." Id. The publicity in Petitioner's case presents a stark contrast with the media excesses that presumptively deprived the defendants of a fair trial in Rideau, Sheppard, and Coleman. Most of the media coverage identified by Petitioner reported on the crime and the Murrays' arrest, indictment, and trial. ROA, Index of Exhibits, 4/22/92. Although some of the reports recounted evidence found with the Murrays or at the scene, and included law enforcement statements about the crime and how it was perpetrated, these reports appear to have been factual rather than inflammatory. See Gallego v. McDaniel, 124 F.3d 1065, 1071 (9th Cir. 1997) (factual accounts of pretrial events did not constitute "prejudicial and inflammatory" - 17 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 17 of 64

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news coverage requiring a change of venue). Two Kingman newspaper stories and some radio stations reported that the Murrays were wanted for the robbery and assault of a 76year-old woman in Alabama and were suspects in a cross-country crime spree. These press reports, while clearly warranting careful voir dire and jury selection, do not rise to the level of the repeatedly-televised confession in Rideau or the "massive, pervasive and prejudicial publicity" in Shephard.9 384 U.S. at 335. "`Prejudice is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime. Prejudice is rarely presumed because `saturation' defines conditions found only in extreme situations.'" Ainsworth v. Calderon, 138 F.3d 787, 795 (9th Cir.), as amended, 152 F.3d 1223 (9th Cir. 1998) (quoting United States v. Sherwood, 98 F.3d 402, 410 (9th Cir. 1996)). The Court's review of the evidence suggests that this was not an extreme situation. The media coverage was largely factual. The press coverage clearly warranted careful jury selection, but it was not so extensive and inflammatory that the trial court must have presumed the jury would be prejudiced. The Court concludes that Petitioner's trial was not one of those rare cases where pretrial publicity rendered the trial a "hollow formality." Rideau, 373 U.S. at 726. The Court also rejects Petitioner's contention that the Arizona Supreme Court employed an erroneous standard when assessing presumed prejudice. Dkt. 56 at 8-11. The court correctly cited United States Supreme Court precedent, Murphy, 421 U.S. at 798, for

Petitioner's reliance on the case of Murphy v. Florida (Dkt. 56 at 9-11) is also unavailing. In Murphy, the Supreme Court found no prejudice despite extensive, even national, pretrial publicity and the fact that 20 of 78 prospective jurors were excused after indicating that they had an opinion as to the petitioner's guilt and all of the jurors had some knowledge of his past crimes. 421 U.S. at 800-03. Nevertheless, because voir dire indicated that an impartial jury had been seated, and because the atmosphere of the community and courtroom was not "sufficiently inflammatory," the petitioner was unable to show either presumed or actual prejudice. Id. Given the factual nature of the press coverage and the ease with which the trial court was able to seat an impartial jury, Petitioner's case bears a closer resemblance to Murphy than to Rideau or Sheppard. - 18 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 18 of 64

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the proposition that prejudice from pretrial publicity may be presumed where the media coverage was so outrageous that the trial was "utterly corrupted." Murray, 184 Ariz. at 26, 906 P.2d at 559. The court also cited its own holdings in State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993), and State v. Smith, 116 Ariz. 387, 569 P.2d 817 (1977). Id. Bible and Smith, in turn, relied on Murphy, Rideau, Sheppard, Estes, and other Supreme Court precedent for their analysis of presumed prejudice. Bible, 175 Ariz. at 564, 566, 858 P.2d at 1167, 1169; Smith, 116 Ariz. at 390, 569 P.2d at 820. The Arizona Supreme Court applied the correct standard in analyzing the issue of presumed prejudice, evaluating whether the pretrial publicity was of such a nature that Petitioner could not have received a fair trial. Murray, 184 Ariz. at 26, 906 P.2d at 559. It is also clear that the court did not, as Petitioner asserts, ignore the evidence of pretrial publicity. Rather, it reasonably determined that the evidence presented by Petitioner did not show that the publicity was so extensive and inflammatory that prejudice could be presumed. Finally, the Court rejects Petitioner's contention that a "different standard" applies to change of venue motions in capital cases. Dkt. 40 at 48. The Unites States Supreme Court has made no such distinction. In Dobbert, for example, the Court affirmed the petitioner's death sentence, applying Murphy's "utterly corrupted" standard for presumed prejudice to reject the claim that the petitioner was denied a fair trial due to extensive media coverage of his case. 432 U.S. at 302; see also Harris, 885 F.2d at 1360-61 (applying Murphy, Rideau, Sheppard, and Estes in habeas review of capital case). The Arizona Supreme Court did not unreasonably apply clearly established federal law in rejecting Petitioner's claim of presumed prejudice, nor was its decision based on an unreasonable determination of the facts. Petitioner is not entitled to relief on Claim 1. B. Claim 2

Petitioner alleges that his rights under the Sixth and Fourteenth Amendments were violated by the trial court's failure to sequester the jury. Dkt. 40 at 49-51; see Dkt. 56 at 12.

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1.

Background

Petitioner moved to sequester the jury from voir dire through deliberations in order to prevent exposure to prejudicial publicity. ROA 142. Co-defendant Robert Murray joined the motion. RT 5/27/92 at 16. The court held a hearing and denied the motion. RT 5/27/92 at 21; ME 5/27/92. The Arizona Supreme Court rejected the claim that Petitioner was entitled to a sequestered jury: Sequestration of a jury is within the discretion of the trial court, Ariz.R.Crim.P. 19.4, and a trial court's ruling on the subject will not be disturbed on appeal absent a showing of an abuse of discretion and resulting prejudice to the defendant. State v. Schad, 129 Ariz. 557, 568, 633 P.2d 366, 377, cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1981). Any first degree murder trial is likely to require some added security around the court house. Such security does not require the court to sequester the jury. Regarding trial publicity, the court repeatedly admonished the jury to avoid media coverage during the trial. Defendant has not shown, or even claimed, that the jurors did not follow the court's admonitions. See Bible, 175 Ariz. at 574, 858 P.2d at 1177. The trial court did not abuse its discretion in denying defendants' motion for sequestration of jurors. Murray, 184 Ariz. at 32-33, 906 P.2d at 565-66. 2. Analysis

Because there is no constitutional right to jury sequestration, failure to sequester a jury does not warrant federal habeas relief in the absence of demonstrated prejudice. Powell v. Spalding, 679 F.2d 163, 166 & n.3 (9th Cir. 1982) (although failure to sequester jurors during deliberation violated state statute, petitioner not entitled to relief because he failed to show prejudice); see Drake v. Clark, 14 F.3d 351, 358 (7th Cir. 1994); Livingston v. Hargett, 9 F.3d 1547, 1547 (5th Cir. 1993). Petitioner cites a number occurrences in support of his contention that he was prejudiced by the court's failure to sequester the jury. Dkt. 40 at 49-51. These include the jurors' exposure to the security measures employed during the trial, an incident in which police officers made derogatory comments about the defense strategy outside the courtroom, a conversation participated in by the prosecutor which two jurors may have overheard - 20 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 20 of 64

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during a smoke break outside the courthouse, and the fact that a juror's spouse attended the trial. Id. Petitioner's concerns are not well taken. He has not explained how, and no evidence suggests that, sequestration would have prevented the jurors from being exposed to the security measures or from overhearing comments made in and around the courthouse. Further, Petitioner has not shown that he was prejudiced by the incidents, each of which was addressed by the trial court. After hearing testimony from the officers involved, the court determined that the jurors were not exposed to their comments, which took place in the law library with the door closed and in any event did not refer to evidence in the case (RT 6/4/92, Vol. I, at 13). See Murray, 184 Ariz. at 35, 906 P.2d at 568. The conversation possibly overheard by jurors during a smoke break consisted of the prosecutor jokingly apologizing to a state's witness for a misstatement made in one of the prosecutor's questions. RT 6/9/92, Vol. II, at 107-08. The prosecutor himself brought the incident to the court's attention and the court, without objection from defense counsel, indicated that it would again admonish the jurors and would ask the bailiff to keep better track of the jurors. Id. at 109-11. At the end of the trial, Petitioner's counsel notified the court that the wife of one of the jurors had been attending the trial. RT 6/12/92 at 3. The court questioned the juror, who explained that he and his wife had obeyed the court's admonition and had not discussed the case. Id. at 6-7. The juror was drawn as an alternate and did not deliberate on the verdict. Id. at 43. Petitioner cannot show that he was prejudiced by any of these occurrences. Finally, while Petitioner again discusses the high-profile nature of the case, he cites no authority for the proposition that a jury must be sequestered simply because a case has been the subject of publicity, and he makes no assertion that any of the jurors who actually sat on his case disobeyed the court's admonition or were exposed to press coverage during the trial. The Court concludes that Petitioner is not entitled to relief on Claim 2. - 21 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 21 of 64

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C.

Claim 3

Petitioner alleges that his due process rights were violated by the trial court's denial of his severance motion. Dkt. 40 at 52-57; see Dkt. 56 at 12-13. 1. Background

Co-defendant Robert Murray filed a motion to sever his trial from Petitioner's, arguing that he would suffer spillover prejudice from the introduction of evidence regarding Petitioner's disruptive behavior while in jail. ROA 55. Petitioner joined the motion, which the court denied after the State avowed it would not use the evidence. RT 1/14/92 at 12-13; ME 1/14/92. Petitioner subsequently filed an ex parte motion for severance, citing confidential information regarding the existence of antagonistic defenses and a "classic Bruton" problem. RT 4/17/92; see RT 4/22/92 at 122-23. The court denied the request for severance, finding that Petitioner had presented no information in support and that it was not the proper subject for an ex parte motion. RT 4/22/92 at 125-26. Co-defendant filed a renewed motion for severance, citing potential Bruton problems if Petitioner were to testify and raise the defense of duress. ROA 113; RT 5/13/92 at 71-72. Petitioner joined the motion, citing concerns that one defendant would testify and incriminate the other. RT 5/13/92 at 74-75. The court took the motion under advisement, but noted that "there's no incompatibility between the defenses as far as I can tell, and the evidence of the State is all directed toward both. There is no evidence that goes to one and not the other, as far as I know." Id. at 81. The court then denied the motion. ME 5/18/92. Late in the trial, codefendant again moved for severance based on incompatible defenses, asserting that Petitioner's attack on the quality of the investigation allowed the State "to reopen its case during cross-examination of their witnesses." RT 6/9/92, Vol. II, at 25. In denying the motion, the court reiterated that the defenses had not been antagonistic: "Both defendants have attacked the investigation, both have pointed out, throughout the State's case, problems they believe the State has had, witnesses, investigation, and I guess that's exactly what [defense counsel are] trying to do with this, and I don't see the inconsistency at this point." - 22 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 22 of 64

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RT 6/9/92, Vol. II, at 27. On direct appeal the Arizona Supreme Court rejected the claim that the Murrays were prejudiced by a joint trial: The trial court shall sever the trial when it "is necessary to promote a fair determination of the guilt or innocence of any defendant of any offense." Ariz.R.Crim.P. 13.4(a). Severance will also be granted if the court detects the presence or absence of unusual features of the crime or cases that might prejudice the defendant. See State v. McGill, 119 Ariz. 329, 331, 580 P.2d 1183, 1185 (1978). Prejudice occurs when (1) evidence admitted against one defendant is facially incriminating to the other defendant, (2) evidence admitted against one defendant has a harmful rub-off effect on the other defendant, (3) there is significant disparity in the amount of evidence introduced against the defendants, or (4) co-defendants present antagonistic, mutually exclusive defenses or a defense that is harmful to the co-defendant. State v. Grannis, 183 Ariz. 52, 58-59, 900 P.2d 1, 7-8 (1995). Defendants failed to show prejudice. The evidence implicated both defendants equally. Neither defendant made a statement, testified at trial, or presented an antagonistic defense. Cf. Bruton v. United States, 391 U.S. 123, 124, 88 S.Ct. 1620, 1621, 20 L.Ed.2d 476 (1968) (confession by co-defendant). Moreover, the jury questionnaire inquired into whether the venire members would have trouble keeping the defendants separate during trial. Those who answered affirmatively were individually questioned by the court and counsel. At the close of the evidence, the trial court instructed the jury: You are instructed that you must consider the evidence presented by the State separately as to each of the defendants in this case. You must determine whether or not the State has proved the charges against each defendant beyond a reasonable doubt. If you find that the State has proved its case against one of the defendants but not the other, you must reflect that in your verdict. With such an instruction, the jury is presumed to have considered the evidence against each defendant separately in finding both guilty. See Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979). The trial judge committed no error in denying the motions to sever. "[I]n cases where the crimes of the two defendants are so intertwined that it is difficult, if not impossible, to separate proof of one defendant's crimes from that of the co-defendant's, it would be a waste of resources to require individual trials." State v. Wiley, 144 Ariz. 525, 532, 698 P.2d 1244, 1251 (1985), overruled on other grounds by State ex rel. Criminal Div. of Attorney Gen.'s Office v. Superior Court ex rel. Maricopa County, 157 Ariz. 541, 760 P.2d 541 (1988). Murray, 184 Ariz. at 25-26, 904 P.2d at 558-59 (footnote omitted). 2. Analysis

On federal habeas review, the denial of a motion to sever is evaluated on the basis - 23 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 23 of 64

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of whether the state proceedings satisfied constitutional due process. Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997); see also Hood v. Helling, 141 F.3d 892, 896 (8th Cir. 1998). Therefore, to prevail on this claim, Petitioner bears the burden of demonstrating that the denial of his severance motion resulted in prejudice great enough to render his trial fundamentally unfair. Grisby, 130 F.3d at 370. Such prejudice may arise where codefendants assert mutually exclusive or antagonistic defenses, or exculpatory evidence would be available to one defendant if he was tried separately but is unavailable in a joint trial. See Zafiro v. United States, 506 U.S. 534, 539 (1993). Prejudice may also occur where evidence is presented that is technically admissible only against the co-defendant but is probative of the defendant's guilt. Id. (citing Bruton, 391 U.S. 123) (holding that admission of co-defendant's confession inculpating defendant violated Confrontation Clause). In attempting to establish that he was prejudiced by a joint trial, Petitioner relies on Zafiro and Bruton. These cases are inapposite. By definition, mutually antagonistic defenses force the jury to disbelieve the core of one defense in order to believe the core of the other, so that a jury's acceptance of one party's defense precludes acquittal of the other defendant. See United States v. Rashkovski, 301 F.3d 1133, 1137-38 (9th Cir. 2002). Mere antagonism between defenses or the desire of one defendant to exculpate himself by inculpating a co-defendant is insufficient to require severance. See United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996). Similarly, a defendant is not entitled to severance merely because the evidence against a codefendant is more damaging than the evidence against him. See United States v. Martin, 866 F.2d 972, 979 (8th Cir. 1989). In this case, both the trial court and the Arizona Supreme Court determined that the defenses were not antagonistic. Murray, 184 Ariz. at 25, 906 P.2d at 558. That

determination is supported by the trial record, which demonstrates that the defenses were consistent ­ both Petitioner and Robert Murray attacked the quality of the investigation, - 24 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 24 of 64

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challenged the time-line, and argued that reasonable doubt existed as to whether the brothers had actually committed the murders as opposed to simply taking possession of the stolen goods after the victims were dead. See, e.g., RT 6/11/92 at 10-35, 37-63. The holding in Bruton is equally inapplicable because neither brother testified and no inculpatory statements were introduced. Finally, given the strength of the evidence against each defendant and the prophylactic measures taken by the trial court, Petitioner cannot demonstrate that he was prejudiced by the joint trial. There was overwhelming evidence that both Petitioner and Robert Murray participated in the murders. The effect of that evidence would not have changed had the trials been severed. Claim 3 is without merit and will be denied. D. Claim 6

Petitioner alleges that the trial court improperly denied his Batson motion in violation of his rights under the Sixth and Fourteenth Amendments. Dkt. 40 at 63-65; see Dkt. 56 at 17-18. 1. Background

In exercising its peremptory strikes, the State removed the only remaining Hispanic members of the jury panel, Christina Pethers and David Alvarado.10 Defense counsel objected pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). RT 5/29/92, Vol. II, at 20. The trial court then required the prosecutor to articulate his reason for the strikes. The prosecutor first indicated that he was not aware that Pethers was Hispanic, although her maiden name was Garcia. Id. at 21. He then informed the court: [T]he State recently did a major drug investigation of her mother and her mother's brother, Eddie Mallon. It's a very big case. Both of those defendants went to jail for a time. I'm not sure of the status of Mrs. Garcia. From what Mrs. Pethers said, the charge was dismissed. I believe there's been some sort of negotiated deal, but I am not positive about that. But, I

A third Hispanic juror was removed for cause because he was the trial judge's uncle. RT 5/28/92 at 20, 105. - 25 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 25 of 64

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know both of those people were heavy into drugs. Both of those people were suspected of being in drugs. There's a forfeiture action proceeding against Garcia, Mallon. This being the daughter, I do not believe that she ­ I don't want her on the jury for those reasons, possible bias. Id. at 21-22.11 With respect to Alvarado, the prosecutor explained: Mr. Alvarado is Hispanic, and it was a close call on that strike. What I went on is, as Mr. Alvarado told the court, he knows me, I know him. Not well. I'm going basically on my personal knowledge of Mr. Alvarado five or six years ago. . . . I met Mr. Alvarado at social functions, parties, whatnot. I met Mr. Alvarado probably half a dozen times anyway, and had discussions with him. . . . [M]y recollection of Mr. Alvarado is he's a very, very nice person. He is too nice. You couldn't get him to disagree with you. He didn't want to hurt anybody. He is just indecisive, is my recollection of him. My strike on him is solely going back to my personal knowledge of meeting him numerous times four or six years ago. Id. at 22. Based on the prosecutor's explanations, the court denied Petitioner's Batson motion: Well, under Batson, of course, the real question is whether the State gives valid race neutral reasons for the strike, and based on the record, my own opinions about those particular jurors, I find that the reasons given by the State are sufficient. It's difficult to make a Batson case when you only have two minorities on the jury, but even with the two I am finding that the reasons are sufficient. I don't find that there was any racial reasons for the strikes, and the reasons given are consistent with my own assessments of those particular jurors. Id. at 22-23. On direct review, the Arizona Supreme Court held that the potential bias of Pethers based on the State's criminal investigation of her relatives was "a sufficient reason to peremptorily challenge a juror." Murray, 184 Ariz. at 25, 906 P.2d at 558. With respect to the strike of Alvarado, the court held that no Batson violation occurred "[b]ecause the prosecutor's explanation was based on prior contact with the venire member outside the jury

During her individual voir dire, Pethers had indicated that she was familiar with the County Attorney, Bob Moon, through her mother's case, which Moon had prosecuted. According to Pethers, the case had been dismissed and did not go to trial. RT 5/29/92, Vol. I, at 80. When asked if anything about the prosecution of her mother would affect her ability to sit on the case, Pethers replied, "No." Id. at 80-81. - 26 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 26 of 64

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setting, his determination was not `wholly subjective,'" and because "the trial court's own observations provided . . . objective verification." Id. The supreme court "accept[ed] the prosecutor's reasons as race neutral." Id. 2. Analysis

In Batson, the United States Supreme Court held that the Equal Protection Clause forbids a prosecutor from challenging potential jurors solely on account of their race. 476 U.S. at 89. Hispanics are a cognizable racial group for Batson purposes, Fernandez v. Roe, 286 F.3d 1073, 1077 (9th Cir. 2002) (citing Powers v. Ohio, 499 U.S. 400, 409-16 (1991)), and the Batson principle applies where, as here, the criminal defendant and the excluded jurors are of different races, Powers, 499 U.S. at 409. Under Batson, a defendant's challenge to a peremptory strike requires a three-step analysis. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory strike on the basis of race. See Rice v. Collins, 546 U.S. 333, 338 (2006). If the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for the strike. Id. The trial court then must determine whether the defendant has carried his burden of proving purposeful discrimination. Id. With respect to Batson's second step, while the prosecutor must offer a "comprehensible reason" for the strike, id., the reason need not be "persuasive, or even plausible," Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam). "So long as the reason is not inherently discriminatory, it suffices." Rice, 546 U.S. at 338; see Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion) ("Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral."). Under the third Batson step, after the prosecution puts forward a race-neutral reason, the court is required to evaluate the persuasiveness of the justification to determine whether the prosecutor engaged in intentional discrimination. Purkett, 514 U.S. at 768. The court need not agree with the prosecutor's stated nonracial reason ­ the question is not whether - 27 Case 2:03-cv-00775-DGC Document 100 Filed 05/30/2008 Page 27 of 64

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the reason represents a sound strategic judgment, but whether counsel's race-neutral explanation for a peremptory challenge should be believed. Hernandez, 500 U.S. at 365. "[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Purkett, 514 U.S. at 768. "In deciding if the defendant has carried his burden of persuasion, a court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Batson, 476 U.S. at 93 (internal quotations omitted). Both the Supreme Court and the Ninth Circuit have utilized comparative juror analysis to assess whether a prosecutor's race-neutral explanation for a strike was in fact a pretext for a discriminatory strike. Miller-El II, 545 U.S. at 241 ("If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination at Batson's third step."); Boyd v. Newland, 467 F.3d 1139 (9th Cir. 2006); Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006). Up