FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC JOHN KING, 

Petitioner-Appellant, No. 06-99006

v. D.C. No.

DORA B. SCHRIRO, Director, of the  CV-98-01277-RCB

Arizona Department of OPINION Corrections,

Respondent-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Robert C. Broomfield, District Judge, Presiding

Argued and Submitted

July 10, 2007—Pasadena, California

Filed August 11, 2008

Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld,

and Richard C. Tallman, Circuit Judges.

Opinion by Judge Kleinfeld

10295
COUNSEL

Daniel D. Maynard, Maynard, Cronin, Erickson, Curran &

Sparks, P.L.C., Phoenix, Arizona, for the appellant. 

John P. Todd, Assistant Attorney General, Phoenix, Arizona,

for the appellee.

OPINION

KLEINFELD, Circuit Judge: 

This is a death penalty case. King robbed a convenience

store. During the robbery, he murdered the clerk and the

security guard. After his conviction for two first degree murders and armed robbery, appeals in the Arizona courts,1

 and

denial and appeal of his petition for post-conviction relief in

the Arizona courts, he petitioned unsuccessfully for a writ of

habeas corpus in the United States District Court,2 and now

appeals. Two grounds for appeal have been certified: prosecutorial misconduct by vouching for one witness and implying

that another witness was scared of King, and ineffective assistance of counsel at sentencing. At trial, the defense argued

(King did not testify) that the jurors ought to have had a reasonable doubt about whether King really was the murderer or

whether the person who was with him had done it. 

1

See State v. King, 883 P.2d 1024 (Ariz. 1994). 

2

See King v. Schriro, 2006 WL 1735247 (D. Ariz. June 22, 2006). 

10298 KING v. SCHRIRO
FACTS

King committed the robbery and murders just after midnight. Security cameras caught the robbery and murder of the

convenience store clerk, Ron Barman, on tape. Though the

video did not clearly show King’s face, it did show his distinctive diamond-patterned sweater. Also, despite the late

hour, numerous individuals saw parts of the events, and several described the sweater pattern. 

A Mr. Madden had driven into the parking lot of a restaurant behind the convenience store. He saw two men in the

convenience store parking lot, one wearing a blue or black

and white sweater with “some kind of pattern like pyramids,”

and the other wearing a “green sweatshirt.” Hearing gunshots,

he drove to the convenience store, got out, and saw the security guard, Richard Butts, lying on the ground, his holster

empty. Mr. Butts was not yet dead, bleeding from the gut, and

moaning. Mr. Madden dialed 911. As he dialed, he saw the

man in the distinctive sweater go over to the security guard,

wipe his holster and belt off with a white cloth, and leave. 

Two more witnesses, Mr. Harris and Mr. Dils, heard the

gunshots as they drove nearby. Mr. Harris saw two men running from the store, one carrying a gun. Mr. Harris and Mr.

Dils stopped, and Mr. Harris saw the guard lying on the

ground, entered the store, and saw the clerk, shot in the stomach and shoulder but not yet dead, yelling into the telephone.

Mr. Dils checked the guard for a pulse, but found none. These

two witnesses stayed and tried to help the clerk until the

ambulance came. 

Three more witnesses pulled into the convenience store

parking lot. One noticed the guard on the ground, and another

saw a man in a dark sweater with a white “logo” bend over

the security guard and wipe off his holster with a white cloth

before running away. 

KING v. SCHRIRO 10299
A Phoenix police officer got a radio call directing him to

go to the convenience store and providing a description of the

suspects. He saw two men more or less fitting the description,

got out of his car, and told them to halt. One did (Michael

Page Jones, whose testimony we describe below); the other,

a man wearing a distinctive sweater, ran away. 

Two more witnesses, Ms. Hill and Ms. Smith, were walking nearby. Ms. Hill was at that time Jones’s girlfriend, and

had known King for years. She saw King throw a plastic bag,

containing a gun and a distinctive sweater she had seen him

wearing earlier that night, into a dumpster. Ms. Hill called the

police and identified King after seeing his picture, taken from

the security camera, on television. The police then apprehended him.

At trial, King’s lawyer skillfully brought out various discrepancies among the many witnesses’ descriptions of King,

his sweater, and the gun. Jones, the man with King at the time

of the murders whom police caught right away, testified that

he had stayed outside the store and heard the gunshots. He

said he saw King leave the store with the gun in his hand and

saw the security guard lying on the ground with an empty holster, though earlier that evening Jones had seen the security

guard with a large handgun in his holster. Though Jones was

at first charged with the crime, the charges against him had

been dismissed by the time of King’s trial. King’s lawyer

brought out on cross examination that the dismissal was without prejudice and that Jones understood that he could be

charged again. 

The prosecutor planned to put Jones and Ms. Hill on the

witness stand, but was not confident that they would testify in

accord with what they had told the police. In the prosecutor’s

opening statement, when he summarized the evidence he

intended to put before the jury, he made the remarks that give

rise to the certified claims of prosecutorial misconduct. Specifically, King contends that the prosecutor improperly

10300 KING v. SCHRIRO
vouched for Jones and implied that King or King’s family had

threatened Ms. Hill to keep her from testifying. Defense counsel had expected Jones not to testify for the prosecution, or to

testify that he did not remember the events: 

I hadn’t expected Jones to be here, but since he is

here, I think we need to have a determination before

his direct examination, though I don’t think either

Paul or I knows what he’s going to say. I think we

have narrowed it down to two or three possibilities,

and I think we need to know before he begins direct

in what way the Court is going to allow Mr. Rood to

impeach him. I think the most likely answer is I don’t

remember anything, and if that’s the answer, it’s my

position that he cannot be impeached with a prior

inconsistent statement, and I just would like a ruling

from the Court on that issue before we begin.

[Emphasis added.]

Before opening statements, in the hearing on in limine

motions, defense counsel stated that even though Jones had

been subpoenaed by the prosecutor, “I’m not sure he can produce him.” She said this arguing for an in limine order to preclude the prosecutor from telling the jury what Jones would

testify to since in her view he might not. Thus, the prosecutor

had reason to prepare the jury for the possibility that Jones

might not show up and testify to what he had previously said.

During his opening statement, the prosecutor said that he

could not guarantee what Jones would say on the witness

stand, but “if he testifies truthfully,” that is, in accord with

what he had told the police, he would implicate King: 

You will hear from a man by the name of Michael

Page Jones. Mr. Jones was with Eric King that night.

In fact, at one time Mr. Jones was charged as an

accomplice. The case was later dismissed. Michael

Jones was with Mr. King. He told the police officers

KING v. SCHRIRO 10301
later in December exactly what happened. I can’t

guarantee you what Mr. Michael Page Jones is going

to say when he gets on the stand, ladies and gentlemen, but he was there that night and he has information, and I suggest to you that if he testifies truthfully

as he should, he will implicate the defendant, Eric

King, without a doubt. [emphasis added] 

Also during his opening statement, the prosecutor

explained that he would put Ms. Hill on the witness stand, but

that she did not want to testify and “is scared to death”: 

Who else? Renee Hill is here. Renee Hill at one time

was the girlfriend of Michael Jones. Renee Hill currently lives in the Projects. She is on welfare, and

she is scared to death. She comes to Court today not

voluntarily, but because Detective House managed

to go out and find her over the last 24 or 36 hours

and bring her to the Court. She is scared. Whether

she should be or whether she shouldn’t be, ladies

and gentlemen, it doesn’t matter, because in her own

mind she is scared. She does not want to testify. She

does not want to come into this courtroom under any

circumstances. Ladies and gentlemen, she will be

brought into this courtroom, and you will hear her

testify. [Emphasis added.] 

Defense counsel did not object to the prosecutor’s comments at the time they were made, but after the prosecutor had

completed his opening statement, defense counsel moved for

a mistrial on the basis of the “if he tells the truth” statement

about Jones. The trial judge denied the motion for three reasons: it was not “clear vouching under the circumstances,” the

court had instructed the jurors that the statements of counsel

were not evidence, and the jurors would be so admonished

again in the instructions at the end of the trial. The court

offered to give the admonition again, but wondered whether

defense counsel wanted the jury to be reminded that what the

10302 KING v. SCHRIRO
lawyers say is not evidence just before she gave her opening

statement. Defense counsel responded “I don’t want you to.”

Defense counsel did not, during the prosecutor’s opening

statement, or in her motion for a mistrial immediately after

the opening statement, raise any question with regard to the

remarks in the opening statement about Ms. Hill. The prosecutor’s statement that Ms. Hill was “scared to death” went

unobjected to and unraised in the motion. But after Ms. Hill

had testified, defense counsel moved for a mistrial based on

the combination of Ms. Hill’s testimony and the prosecutor’s

remarks. The trial judge denied the motion, finding that the

prosecutor’s remark was supported by Ms. Hill’s demeanor,

which showed that she was a reluctant witness who did not

want to be there and was afraid, and that there was no indication that her fear came from anything King said or did: 

[Ms. Hill’s] demeanor obviously indicated she did

not want to be there. She was a very reluctant witness. It was obvious she was under a great deal of

stress and anxiety and fear, and she never indicated

that fear was coming from any specific individual or

defendant or anybody else from his family. 

As counsel had expected, Jones claimed memory problems.

When he was asked which direction he was going when the

policeman stopped him half a block from the convenience

store, he said, “I don’t actually remember,” and when asked

whether he was coming back from the convenience store, he

said, “I really don’t know. I was very intoxicated at the time.”

Subsequent police testimony was that they did not smell alcohol on his breath. Jones then admitted that he had been at the

convenience store some time that evening with King, but

when asked whether he was there earlier he said, “I don’t

remember.” As the questions proceeded he said, “I don’t

really remember much.” 

But then Jones admitted that he had talked to one of the

police officers and that he did indeed go to the convenience

KING v. SCHRIRO 10303
store more than once with King that evening. He had told the

policeman he did not go into the store, but that he was there

when the murders were committed. As the prosecutor continued asking detailed questions, Jones conceded that he looked

in the direction of the store because he had heard two gunshots, and that he then saw King coming out of the store with

a gun in his hand. Jones testified that he saw the security

guard lying on the ground, and he ran away because he was

scared. 

After the murders, but before trial, King changed his

appearance by shaving off his beard and sideburns. Jones testified he could not identify the person in the picture shown to

him on the stand, but then conceded that it seemed like King.

Asked whether he had told the police officer the truth at the

time of his arrest, he said, “I do not lie very often.” Jones also

said he was telling the truth on the stand when he said King

was at the convenience store with a gun in his hand when he

heard two shots. When asked whether he had any idea where

the gun in King’s hand came from, he testified “My guess is

it was the security guard’s,” because previously the security

guard had had a gun that looked like a .44 Magnum or a .357

in his holster. On cross examination, defense counsel elicited

that the murder and robbery charges against Jones had been

dismissed, but that they could be filed again. The policeman

who had interrogated Jones also testified that Jones had told

him approximately the same story that Jones told on the witness stand. 

King also appeals a second certified issue of ineffective

assistance of counsel at sentencing. For the reader’s convenience, we state the facts related to this claim below, where

we consider it. 

ANALYSIS

This is a petition for a writ of habeas corpus from a state

conviction, governed by the limitations on our review under

10304 KING v. SCHRIRO
28 U.S.C. § 2254. Accordingly, though we review the district

court’s decision de novo,3 our review of the state court is

highly deferential.4 The Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA)5 provides that we cannot

impose our view of what federal constitutional law requires

on the state system unless the state court decision was contrary to or unreasonably applied federal law clearly established by the United States Supreme Court: 

An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of

a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State

court unless the adjudication of the claim— 

(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.6

Thus, all we can decide regarding these remarks by the prosecutor is whether the Arizona Supreme Court acted contrary to

or unreasonably applied Supreme Court holdings when it

decided not to vacate the conviction.7

Appellant’s brief does not cite any Supreme Court decision

that the Arizona Supreme Court acted contrary to or unreasonably applied regarding the prosecutor’s remarks in his

opening statement, and the only decision of the Supreme

Court cited in appellant’s brief on the ineffective assistance

claim is Strickland v. Washington.

8

 The Arizona Supreme

3

See Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003). 

4

See Lindh v. Murphy, 521 U.S. 320, 334 n.7 (1997). 

5

28 U.S.C. § 2254; see Lindh v. Murphy, 521 U.S. 320, 334 n.7 (1997).

6

28 U.S.C. § 2254(d). 

7

See Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 653-54 (2006). 

8

466 U.S. 668 (1984). 

KING v. SCHRIRO 10305
Court’s decision denying relief may be set aside only if it

acted contrary to or unreasonably applied the Supreme

Court’s holdings, regardless of whether it decided as we

would have.9 For the “contrary to” clause, appellant would

have to demonstrate that the state court decision “ ‘arrives at

a conclusion opposite to that reached by [the Supreme Court]

on a question of law,’ ”

10 or when faced with “materially

indistinguishable” facts.11 The “unreasonable application”

clause requires not merely that we disagree with the state

court’s application,12 but beyond that, that the state court decision is objectively unreasonable.13 Even if we think the state

court erred, the state court decision stands if the error was not

an unreasonable application of Supreme Court holdings. State

court factual determinations stand, even if we would not reach

them on the same record, unless there is “clear and convincing evidence” that they are “objectively unreasonable.”

14

Thus, our analysis in a case governed by § 2254 is quite confined. 

I. Prosecutorial Misconduct

A. Jones’s Testimony 

[1] The Arizona Supreme Court considered whether in context the prosecutor’s “if he testifies truthfully” remark placed

the prestige of the government behind Jones’s testimony or

suggested that information not presented to the jury supported

9

See Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 653-54 (2006).

10Stenson v. Lambert, 504 F.3d 873, 881 (9th Cir. 2007) (alteration in

original) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). 

11Id.

12Cooks v. Newland, 395 F.3d 1077, 1080 (9th Cir. 2005) (“The ‘unreasonable application’ clause requires the state court decision to be more

than incorrect or erroneous.” (quoting Lockyer v. Andrade, 538 U.S. 63,

75 (2003))). 

13Id.

14Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 

10306 KING v. SCHRIRO
Jones’s testimony.15 These were the right factors to consider,

under the Supreme Court’s decision in United States v. Young.

16

As to the first factor, far from giving the jury the government’s assurance that Jones was honest, the prosecutor was

revealing doubts about whether he would testify honestly. As

the Arizona Supreme Court explained, the prosecutor was

“preparing the jury for the possibility that Jones might testify

otherwise” than the account he gave to the police officer who

interrogated him.17 As to the second Young factor, suggesting

that the prosecutor knew something that the jury did not, the

prosecutor put the police officer on the stand to testify about

what Jones had told him and got Jones to admit (after considerable memory difficulties) what he had previously told the

police officer. The implication was that the prosecutor knew

what Jones told the police, nothing more, and the jury heard

the testimony of the police about what Jones told them. 

[2] What controls the outcome of this case is whether the

Arizona Supreme Court unreasonably concluded that, taken in

context, the prosecutor’s comments neither placed the government’s imprimatur on Jones’s testimony nor implied that

information not in evidence showed what the truth really was,

such that the “fairness, integrity or public reputation of the

judicial proceedings”

18 were seriously affected.19 A cautious

prosecutor may well wish to avoid saying anything that

implies that he knows what is actually the truth. And an epistemologically sensible prosecutor may realize that he does

not, since he was not at the scene of the crime and relies on

what others of varying credibility say they saw or heard and

on arguable inferences from the circumstantial evidence. Even

15State v. King, 883 P.2d 1024, 1032-33 (Ariz. 1994). 

16470 U.S. 1, 7 n.3, 11-12 (1985). 

17State v. King, 883 P.2d 1024, 1033 (Ariz. 1994). 

18United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States

v. Atkinson, 297 U.S. 157, 160 (1936)); see Darden v. Wainwright, 477

U.S. 168, 180-81 (1986). 

19See Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 653 (2006). 

KING v. SCHRIRO 10307
the criminals, victims, and witnesses are often unsure or mistaken. In this case, the Arizona Supreme Court’s application

of the Supreme Court’s holding in Young was not unreasonable, so we must deny relief.20

B. Hill’s Testimony

King’s theory regarding the prosecutor’s “she’s scared to

death” remark about Ms. Hill is that it implied facts not in

evidence, showing that King or King’s family had threatened

to kill her if she testified. But defense counsel did not object

when the prosecutor made the remark. Even when moving for

a mistrial at the end of the prosecutor’s opening statement

because of the “if he testifies truthfully” statement about

Jones, the defense did not move for a mistrial or otherwise

object to the “scared to death” language about Ms. Hill. King

did raise the matter, finally, after Ms. Hill had completed her

testimony and left the witness stand, in another motion for

mistrial. 

[3] The Arizona Supreme Court rejected King’s argument

on alternative grounds.21 First, under Arizona law, “the defendant must voice his objection to arguments that are objectionable, and failure to do so constitutes a waiver of any right to

review.”

22 The court cited a well established body of Arizona

law to that effect.23

Second, the Arizona Supreme Court rejected the argument

on the merits because Ms. Hill’s fear was obvious from her

demeanor, and her “unwillingness to testify goes directly to

her credibility.”

24 The court explained that the prosecutor

2028 U.S.C. § 2254(d); Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649,

653 (2006). 

21State v. King, 883 P.2d 1024, 1033-34 (Ariz. 1994). 

22Id. at 1033. 

23See id. (citing State v. Holmes, 520 P.2d 1118, 1120 (Ariz. 1974)). 

24Id. at 1033-34. 

10308 KING v. SCHRIRO
rightly wanted to prepare the jury for Ms. Hill’s demeanor,

and even if the prosecutor’s remarks were “improper but colorful hyperbole,”

25 they had no significant effect: 

Hill testified that she called the police after seeing

the surveillance pictures broadcast on television. She

admitted that she identified defendant as the person

in the picture. When asked whether defendant was

the person depicted in the surveillance photograph,

however, she repeatedly stated that the person in the

picture did not look like defendant. Her fear and anxiety over testifying certainly served to bolster her

earlier identifications over her trial testimony.26

The court concluded that there was no plain error and no prejudice in King’s case. Ms. Hill testified that “I don’t want to

testify. I am being held against my will, something I don’t

want to do. . . . I got my own troubles and worries.” The Arizona Supreme Court thus agreed with the trial court’s conclusion that Ms. Hill’s fear was obvious from her testimony, so

the prosecutor’s remark did not have the effect of denying

King a fair trial. 

The Arizona Supreme Court also evaluated the statement in

context and concluded that “the prosecutor had no idea what

Ms. Hill would say once she was on the stand,” but “rightly

anticipated that he would have to provide the jury some explanation for Hill’s eventual refusal to identify defendant.”

27 In

fact, after trying to get off the witness stand before direct was

even completed, Ms. Hill testified that the surveillance photograph shown on television, which had prompted her to call the

police, did not look like King after all. 

25Id. at 1034. 

26Id.

27Id. at 1033. 

KING v. SCHRIRO 10309
On appeal to us, King argues that the failure to object arose

because defense counsel expected there to be evidence of a

threat and saw no prejudice until it was clear no such evidence would be presented. But there is no evidence or authority before us showing how that speculation would bear on the

question of whether the Arizona Supreme Court acted contrary to or unreasonably applied Supreme Court holdings. 

[4] We have no supervisory authority over Arizona court proceedings,28 and it is plain from Ms. Hill’s own testimony that

she was scared of something. The state trial judge’s finding

that her demeanor showed fear is not “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” so we cannot reject it.29

It is clear that she was scared, though neither the prosecutor’s

statement nor Ms. Hill’s testimony says who or what was the

cause. She could have been scared of a threat, or a reputation

as a “snitch,” or social ostracism from King’s friends, or

something unrelated to this case that might be exposed on

cross examination, or merely involvement with the police and

the judicial system. In evaluating a claim of prosecutorial misconduct, “a court should not lightly infer that a prosecutor

intends an ambiguous remark to have its most damaging

meaning or that a jury, sitting through lengthy exhortation,

will draw that meaning from the plethora of less damaging interpretations.”30 Appellant has not brought to our attention any

Supreme Court holding that would have required the Arizona

Supreme Court to follow another course in this case. Since the

Arizona Supreme Court did not act contrary to or misapply

Supreme Court holdings, we must deny relief.31

28See Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974). 

2928 U.S.C. § 2254(d)(2). 

30Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974). 

3128 U.S.C. § 2254(d); Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649,

653 (2006). 

10310 KING v. SCHRIRO
II. Ineffective Assistance of Counsel

King’s second certified claim is that he received ineffective

assistance of counsel at sentencing. The only authority he

cites is Strickland v. Washington.

32

The lawyer initially appointed to represent King was public

defender Mr. Roland J. Steinle, III. He moved to withdraw

because his office represented several individuals who might

become witnesses. The trial court granted this motion to withdraw for conflict of interest, and appointed Ms. Mary Wisdom, from the private bar, to represent King. She represented

King through trial, and the certified issues do not include any

claim of ineffective assistance by her through trial and the

verdicts of guilty on all counts. 

After he lost his case, King personally asked the trial court

to appoint replacement counsel. Ms. Wisdom filed a “motion

to determine counsel,” based on a handwritten letter from

King to the judge. King claimed in his letter that the evidence

was not sufficient to convict him, Jones should not have been

allowed to testify, and the transcripts would “reveal the bias

and prejudice conduct of state and my own counsel, was part

of this conspiracy to convict not on provided information submitted to grand jury but only because of my ethnic background in order to satisfy society.” 

At the hearing on this motion on October 30, 1990, Ms.

Wisdom advocated reappointing Mr. Steinle, since her client

no longer trusted her, and Mr. Steinle no longer had a conflict

of interest (none of the witnesses his office represented had

testified). The judge was reluctant to change attorneys and

lose the virtues of continuity, but King insisted. He said to the

judge “I want new counsel.” Besides complaining about Ms.

Wisdom’s lack of success and some things he felt she ought

to have done, King said more broadly “I just don’t feel that

32466 U.S. 668 (1984). 

KING v. SCHRIRO 10311
she did her best, and I feel I got railroaded.” The judge

remained reluctant, and asked Ms. Wisdom to comment. She

said that King “will not cooperate with me in what evidence

we ought to present to the Court in mitigation . . . and I’m

somewhat dependent upon my client to present mitigation.”

The reason King would not cooperate was that “[h]e’s alleged

that I conspired to ensure his conviction because he’s black,

Your Honor.” The judge asked King if he stood by that allegation, and King said, “Yes.” 

The judge accordingly granted King’s request, reappointed

the public defender’s office, and stated his expectation that he

would continue the sentencing hearing. Two months later, in

early January 1991, the court held a status conference, at

which King’s original lawyer, Mr. Steinle, appeared. The

court arranged for sentencing to be six weeks thence, 3

months after Mr. Steinle’s substitution for Ms. Wisdom. A

further continuance moved the sentencing hearing to March 1,

1991, a full four months after the substitution of counsel. 

King makes several arguments for ineffective assistance of

counsel in sentencing. First, he argues (without citation) that

“there needs to be continuity of representation.” This has little

force, because King himself demanded the discontinuity, and

the court gave substitute counsel four months to prepare (and

he did not request more time). Next, King argues that counsel

was ineffective for not requesting a second attorney or a “mitigation specialist,” but he cites no authority for the proposition that counsel should have done so, and makes no showing

of prejudice from not doing so. 

Finally, King argues that counsel did not adequately prepare for the mitigation hearing. The only evidence in the

record that King points to in support of this claim is an affidavit by a Ms. Mary Patricia Durand. Ms. Durand states that she

is a private investigator. She sets out a number of things that

she thinks ought generally to be done in death penalty mitigation investigations and states her opinion that no adequate

10312 KING v. SCHRIRO
investigation was performed for King. Ms. Durand does not

explain how any of the inquiries she recommends might have

benefitted King. Nor does she recite any investigation she has

done or anything she found in any such investigation that

might have benefitted King and was not brought out at King’s

sentencing hearing. 

Ms. Durand criticizes the reports King’s attorney obtained

from two doctors of psychology as being based on insufficient

foundation and investigation, but does not say what the additional investigation she advocates might have turned up. 

The district court noted that before King demanded that she

be replaced, Ms. Wisdom had obtained funding for a mental

health examination, disclosure of his school records and

prison file (he committed the robbery and murders four

months after serving seven years for rape and kidnapping),

and interviewed several family members. Only one psychologist had examined King and prepared a report at the time of

sentencing, and defense counsel presented testimony from

him. The second psychologist did not prepare his report until

1996, five years after King was put on death row. But, as the

district court noted, the two psychologists say approximately

the same thing in their reports. 

At sentencing, the defense psychologist testified that he had

interviewed King on a number of occasions, gathered a history including the psychological report from the state department of prisons, performed psychological tests, interviewed

family members, and studied the trial transcript. Though he

found no indication in any of the tests of any organic brain

damage, he opined that King had a very significant post traumatic stress disorder. While some of the trauma was of little

value for mitigation (King’s parents were divorced when he

was a small child, his father died of a heart attack when he

was eleven, the family spent seven years battling over the

father’s estate in court), some was extremely serious. The

most severe, which counsel brought out effectively, was that

KING v. SCHRIRO 10313
when King was ten, he misbehaved and left the house without

permission. His mother was not content with having his brothers go get him and bring him home. “[S]he put a gun to his

head and told him that she would kill him if he misbehaved

again.” 

Other information elicited was that after his father died, his

mother commenced “living with a man who periodically beat

her.” One of King’s brothers said that “he was beating and

battering their mother to the point where she at one time he

started to beat on her and she had to pull out a gun shoot him

[sic] to stop him doing that,” and another time “one of the

brothers had to put a knife to his throat one time to stop, to

warn him not to do that anymore.” Then all the brothers,

including King, moved out (King was fifteen) because “[t]hey

had just got to the point where somebody was going to get

hurt.” Subsequently, King began abusing alcohol and drugs,

which the psychologist attributed to “self-medicating” to

drown out the trauma. Also, when King was serving his time

for the rape and kidnapping, there was a riot in which an

acquaintance of King’s was killed. 

The psychologist opined that trauma such as King had

endured can cause “some insensitivity to the needs of others

. . . consistent . . . with an anti-social kind of orientation.”

King had normal intelligence and no learning disorder, and

had made good grades in school until he dropped out. The

psychologist thought King had a “much much greater chance

of successfully undergoing some treatment regime” in prison,

because he would not miss appointments, and his life would

be given structure and rules. He thought King “would be able

to profit” from treatment, was fairly intelligent, and that the

risk of violence would decline as he aged. 

As this mitigation testimony proceeded into cross examination, King said “I don’t want to be here.” The judge emphasized to him his right to be present, but King said “I did not

commit the crime. No evidence, no effect. . . . You will give

10314 KING v. SCHRIRO
me the death penalty or life. I feel either way you go and I

want to leave.” Then King left. 

On cross examination, the prosecutor brought out that the

interviews showed King perceived others to be threatening

“and has worked very hard to be insensitive and hardened to

any kind of emotional reaction because it can re-trigger the

trauma.” King viewed the world, as a result of his trauma, as

a jungle where the strong took from the weak. Asked whether

King would take from others to be strong rather than weak,

the psychologist replied that “[w]hen he feels threatened or in

a potentially threatening kind of situation for him, then that

would be his defense.” 

The sentencing judge accepted substantially all of the mitigation evidence, except for the psychologist’s speculation that

King might have been drunk when he committed the armed

robbery and murders. He expressly considered the mitigation

factors that the psychologist and defense counsel had brought

out, and noted the mother’s letter that said she loved her son.33

He accepted the testimony that King suffered from posttraumatic stress on account of the abuse he suffered as a child.

But he concluded that the mitigating factors were outweighed

by the aggravating factors: that King murdered Robert Barman and Richard Butts to facilitate his escape and keep the

$72.84 taken from the cash register and that the murders were

premeditated and depraved, as evidenced by the facts that

King killed the two men so that they could not testify against

him, wiped his fingerprints off the gun, and got rid of his

clothes and gun to avoid capture. 

33Though this is how the sentencing judge interpreted the letter, King’s

mother focused on sufficiency of the evidence rather than her feelings or

her son’s virtues. The mitigation information she provided was that King

had had “only 12 weeks of freedom” before being arrested for the murders. The remainder of her letter complains that the evidence against King

was not strong enough, because Jones should not have been believed and

the identification evidence was inadequate. 

KING v. SCHRIRO 10315
[5] King’s brief does not suggest that he ought to have

received an evidentiary hearing. All he presents to support his

argument that his lawyer should have done more to establish

mitigation is the private detective’s affidavit stating that in her

opinion, more ought to have been done. 

[6] Even if we were to assume (without deciding) that the

private investigator was right, and that counsel’s performance

was deficient, Strickland v. Washington34 also requires a

showing that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.”

35 We “need not determine

whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the

alleged deficiencies.”

36

[7] The district court concluded, and we agree, that King

made no showing of prejudice. The private detective’s affidavit, though it opined that more investigation should have been

done, “does not . . . contain any information suggesting what

the results of a more complete social and medical history of

Petitioner would have revealed.”

37 In his post-conviction relief

proceedings, King did produce the second psychologist’s

report, obtained five years after sentencing. But that report

does not say anything substantially different or more helpful

than the first psychologist’s report. 

The second psychologist says that after being on death row

for several years, King displayed an “overall mood of mild

depression.” The psychologist described additional abuse by

his mother, whipping him with telephone cords and extension

cords and limbs from an oleander tree, as well as putting the

gun to his head, but said King “had no hard feelings concern34466 U.S. 668 (1984). 

35Id. at 694. 

36Id. at 697. 

37King v. Schriro, 2006 WL 1735247, at *22 (D. Ariz. June 22, 2006).

10316 KING v. SCHRIRO
ing this.” The tension on death row when the state started executing people was very stressful for King, and for a while

(two years before the psychological examination) he was

hearing voices because “this place will drive you crazy at

times.” He had headaches from the stress. This psychologist’s

examination of King showed “no signs of hallucinations and/

or delusions.” He concluded that “[a]t the present time, Mr.

King is not a cold, callous individual,” but because of his

traumatic home environment, “he has never learned to love

himself nor to believe that he is worthy of anyone’s consideration.” His release from prison after he had served his time for

the rape and kidnapping “left [him] to his own faulty

resources, which resulted in a continuation of excessive drug

and alcohol dependency,” and “this type of benign neglect

played a central role in Mr. King’s behavior and subsequent

crime.” 

[8] Like the district judge, we are unable to see how any of

this would have changed the outcome of King’s sentencing.

The second psychologist’s report is the only evidence in the

record that shows what might have been turned up if his

defense attorney had done more investigation. The test we are

required by Strickland to apply is whether “there is a reasonable probability that . . . the result of the proceeding would

have been different.”

38 There is not. 

III. Uncertified Issues

King also raises six issues that have not been certified for

appeal. We have carefully examined each of them, applying

the liberal Miller-El v. Cockrell39 standard, which requires that

38Strickland v. Washington, 466 U.S. 668, 694 (1984). 

39537 U.S. 322. We treat the briefing of uncertified issues on appeal as

a motion to expand the certificate of appealability, see 9th Cir. R. 22-1(e),

and so apply the same standard used to evaluate a request for a certificate

of appealability in the first instance, see Doe v. Woodford, 508 F.3d 563,

567 (9th Cir. 2007). 

KING v. SCHRIRO 10317
a “ ‘petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims

debatable or wrong.’ ”

40 We agree with the district court’s

determination that the uncertified claims do not meet this standard.41

AFFIRMED. 

40Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)). 

41The uncertified issues include: (1) failure to grant an evidentiary hearing, not on ineffective assistance at sentencing, but on whether Jones had

an undisclosed deal and whether alibi evidence should have been put on;

(2) whether his right to confrontation was violated because Jones’s statements to the police interrogator were brought out to impeach Jones

(although the police interrogator was sworn and subject to cross examination); (3) whether consideration of the robbery in sentencing for each of

the murders amounted to double jeopardy; (4) whether the Arizona death

penalty statute unconstitutionally failed to adequately channel discretion;

(5) whether he received ineffective assistance of counsel because his lawyer did not put on an alibi defense (for which King has offered no evidence); (6) whether his conviction violated due process because of various

claims that King did not exhaust in state court, viz., that Jones lied and the

prosecutor knew it, that the interrogating officer did not preserve the handwritten notes upon which he had based his report, that the remaining jurors

were not interrogated about what they heard after a juror who had talked

to someone about the case was dismissed, that witnesses should not have

been allowed to identify King from the videotape because they were laymen, that Ring v. Arizona, 536 U.S. 584 (2002), was not applied retroactively, that the Arizona death penalty violates the equal protection clause,

etc. 

10318 KING v. SCHRIRO