FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT CHARLES TOWERY,  No. 08-99022

Petitioner-Appellant, D.C. No.

v.  2:03-CV-00826-

DORA B. SCHRIRO, MHM

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the District of Arizona

Mary H. Murguia, District Judge, Presiding

Argued and Submitted

February 4, 2010—Pasadena, California

Filed September 22, 2010

Before: Mary M. Schroeder, Raymond C. Fisher

and N. Randy Smith, Circuit Judges.

Opinion by Judge Fisher

16067
COUNSEL

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

Sparks, PLC, Phoenix, Arizona, for the petitioner-appellant.

Terry Goddard, Attorney General, Kent E. Cattani, Chief

Counsel, and Jon G. Anderson (argued), Assistant Attorney

General, Phoenix, Arizona, for the respondent-appellee.

OPINION

FISHER, Circuit Judge:

Robert Towery was convicted of first-degree murder,

armed robbery, first-degree burglary, kidnapping, theft and

attempted theft. He was sentenced to death. Towery’s habeas

petition raises numerous issues, but the district court certified

only one for appeal. We have jurisdiction under 28 U.S.C.

§ 2253(a) and affirm the district court’s denial of habeas corpus on the certified claim. As discussed in Part II below, we

grant a certificate of appealability (COA) as to two other

claims, but hold that they also do not entitle Towery to habeas

relief.

I. Certified Issue: Prosecutorial Misconduct

The issue that the district court certified concerns whether

the prosecutor’s use of witness testimony for inconsistent purposes constitutes misconduct that warrants reversal. In the

murder trial, the witness testified he overheard Towery refer

TOWERY v. SCHRIRO 16071
to a struggle with a victim who was an “old man.” In a previous trial in a different case, however, the same prosecutor had

elicited this testimony to prove that Towery committed an

unrelated robbery, not the murder at issue here. The Arizona

Supreme Court concluded that, even assuming the prosecutor

changed his mind in good faith as to which crime the overheard statement referred to, he committed misconduct by failing at least to alert the court that the first conviction was

based on problematic evidence. Without specifically addressing whether this misconduct constituted a due process violation, the Arizona Supreme Court held that any error was

harmless beyond a reasonable doubt. We first hold that this

harmless error determination was objectively reasonable, and

we further conclude that any prosecutorial misconduct did not

rise to the level of a due process violation under the various

frameworks recognized by the Supreme Court.

A. Factual Background

Robert Towery lived with Randy Barker and John

Meacham in Scottsdale, Arizona, and shared his bedroom

with his girlfriend and her young daughter. As the Arizona

Supreme Court recognized, the case against Towery relied

largely on the testimony of Barker, who testified in exchange

for a reduced charge of second-degree murder. See State v.

Towery, 920 P.2d 290, 296-97 (Ariz. 1996). Unless otherwise

indicated, the following facts are based on Barker’s account.

On September 4, 1991, Barker and Towery agreed to rob

Mark Jones, whom Towery had previously met, at Jones’

house. That evening, the two of them drove in Barker’s car to

a Denny’s Restaurant and from there took a taxi to be dropped

off in Jones’ neighborhood. They knocked on Jones’ door,

and Towery asked if they could use his telephone because

their vehicle had broken down. Towery said, “Do you remember me? I’m from R and D Automotive.” 

After the two were let in, Barker pretended to make a telephone call, while Towery pulled a gun out of his briefcase.

16072 TOWERY v. SCHRIRO
Towery told Jones that they were robbing him, both men put

gloves on and Barker handcuffed Jones. Over the course of

about two hours, Barker kept watch on Jones while Towery

collected about $1,200 in cash and loaded Jones’ car with

jewelry, electronics and other items. 

Towery and Barker then led Jones to the master bedroom

at gunpoint, asking him whether he expected anyone soon.

Towery asked Jones whether he preferred to be tied up or to

be injected with a drug that would put him to sleep. Jones

chose the latter option and was laid face down on the bed.

Towery then tried several times to inject Jones with a large

veterinary syringe that Barker believed contained battery acid.

Believing Jones was pretending to have fallen asleep, Towery created a noose using a set of tie wraps from his briefcase

and began to strangle him. Jones did not struggle, but made

choking and gagging sounds. After removing the noose, Towery determined that Jones was not yet dead, made another

noose and repeated his previous action. Towery and Barker

then drove Jones’ car to the Denny’s to get Barker’s car,

unloaded the goods at their house and abandoned Jones’ car

in the parking lot of an apartment complex. A security guard

at the complex saw the men and later identified Towery in a

photo lineup. Jones’ body was discovered the next morning.

Towery testified and offered an alibi. He said he dropped

Barker off at the Denny’s and saw him get picked up by

someone else. Towery then drove Barker’s car to meet Tina

Collins at an adult book shop. Towery drove with Collins to

another parking lot, where they talked for about two hours.

Afterward, not finding Barker at their planned meeting spot,

Towery drove home. Barker arrived at the house with Jones’

car and property, and Towery helped him unload the goods

and dispose of the car. Towery also claimed that he bought

the stolen items that the police found in his possession from

Barker. 

TOWERY v. SCHRIRO 16073
Collins’ videotaped deposition was admitted to corroborate

Towery’s story. She said they had first met a couple of weeks

earlier and arranged to meet on September 4. She did not talk

with Towery again until February 9, when she visited the

prison at the suggestion of a friend of hers who happened to

be visiting Towery’s cellmate. In his closing argument, the

prosecutor suggested that Collins had never met Towery prior

to the prison visit and fabricated her testimony to bolster his

alibi. 

B. Procedural History

Towery and Barker were charged with first-degree murder,

armed robbery, first-degree burglary, kidnapping, theft and

attempted theft. After their trials were severed, the jury convicted Towery on all counts, and he was sentenced to death.

During the trial, Towery’s roommate John Meacham testified that on the morning after a large amount of property had

appeared in their house, he heard Towery say he was “having

a hard time with an old man so he had — he had a hard time

tying him up, so he had to knock him down.” Earlier, in

March 1992, six months after the murder and five months

before the murder trial, Towery was tried and convicted of an

unrelated armed robbery in a separate case, but prosecuted by

the same county attorney, John Ditsworth. In the robbery trial,

Ditsworth had elicited Meacham’s testimony that he heard

Towery say, “I tried to get this old man to do what I wanted

him to do, but he wouldn’t do it.” The parties agree that

Meacham’s testimony in both trials referred to the same overheard statement. The same judge presided over both trials, but

Towery had different defense lawyers. 

On automatic appeal, the Arizona Supreme Court affirmed

the murder conviction and death sentence. See Towery, 920

P.2d at 312. On the issue of Meacham’s testimony, the court

first ruled that judicial estoppel did not apply to bar the state

from taking inconsistent positions, because Meacham’s testi16074 TOWERY v. SCHRIRO
mony was a minor part of the robbery case. See id. at 306.

The court then considered whether the prosecutor had committed misconduct, noting Ditsworth’s explanation that he

came to the conclusion after the first trial that the overheard

statement was more likely made in reference to the murder.

See id. at 306 & n.15. The court reasoned that even assuming

the prosecutor had changed his mind in good faith, he committed misconduct by failing to give the court in the first case

any notice that testimony had wrongly been admitted. See id.

at 306.

The court decided, however, that under state law any error

would be harmless if it could “conclude beyond a reasonable

doubt that [the error] did not contribute to or affect the verdict.” Id. at 307 (citing State v. Bible, 858 P.2d 1152, 1191,

1203 (Ariz. 1993)). The court noted that Towery’s lawyer on

cross-examination had elicited Meacham’s testimony that he

thought the overheard statement referred to a prior incident

and not the murder of Jones. The court concluded that “[a]ny

impeachment defense counsel would have obtained from having known of the testimony in the prior trial was effectively

achieved,” and thus “the prosecutor’s misconduct did not

affect the verdict.” Id.

Towery filed a petition for post-conviction relief and a

motion to disqualify Judge Hendrix, who had presided over

both of his trials. Another judge denied the disqualification

motion, rejecting Towery’s claims of bias. Judge Hendrix

denied the petition, which raised due process, false evidence,

Confrontation Clause, ineffective assistance of counsel and

other claims. A different judge, Judge Keppel, denied Towery’s motion for rehearing of the petition. The Arizona

Supreme Court denied review except with regard to one issue

that has now been resolved and is not relevant to this appeal.

See State v. Towery, 64 P.3d 828, 830 (Ariz. 2003) (holding

that the federal constitutional right to have a jury decide

whether aggravating circumstances exist in capital cases does

not apply retroactively).

TOWERY v. SCHRIRO 16075
In 2003, Towery filed a petition for a writ of habeas corpus

in the federal district court for the district of Arizona, raising

eight claims. On the prosecutorial misconduct issue, the court

concluded that Towery had not shown that the prosecutor

knowingly presented false testimony or failed to disclose

exculpatory information. It also agreed with the Arizona

Supreme Court that Towery suffered no prejudice. After

denying all other grounds for relief, the court granted a COA

on the prosecutorial misconduct issue only. See 28 U.S.C.

§ 2253(c).

C. Standard of Review

A district court’s decision to deny a petition for a writ of

habeas corpus is reviewed de novo. Moses v. Payne, 555 F.3d

742, 750 (9th Cir. 2009). Because Towery filed his habeas

petition after April 24, 1996, our review is governed by the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). Id. at 750-51. Under AEDPA, a federal court may

grant relief only if the underlying state court decision “was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States,” or “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)(1)-(2).

D. Discussion

On habeas review of a prosecutorial misconduct claim, we

may grant relief only if the misconduct rises to the level of a

due process violation — not merely because we might disapprove of the prosecutor’s behavior. See Sechrest v. Ignacio,

549 F.3d 789, 807 (9th Cir. 2008). Although formally presented as a single question, the prosecutorial misconduct issue

actually encompasses several different due process claims

drawing on distinct lines of precedent. First, Towery argues

that the prosecutor put on false evidence in violation of Napue

v. Illinois, 360 U.S. 264 (1959). Second, he argues that the

16076 TOWERY v. SCHRIRO
prosecutor failed to disclose exculpatory evidence in violation

of Brady v. Maryland, 373 U.S. 83 (1963). Finally, Towery

relies on more general cases discussing when prosecutorial

misconduct violates due process.

The Arizona Supreme Court concluded that there was prosecutorial misconduct, but did not specifically find a due process violation or otherwise analyze the issue within any of the

above frameworks. It instead resolved the case on the basis of

harmless error. See Towery, 920 P.2d at 307. We begin our

analysis there to give proper deference to the Arizona

Supreme Court and hold that Towery’s claim can be rejected

on the harmless error ground alone. Nevertheless, we shall

also consider whether Towery has established a due process

violation under any of the prosecutorial misconduct frameworks recognized by the Supreme Court, and we conclude

that he has not.

1. Harmless Error

[1] A constitutional violation arising from prosecutorial

misconduct does not warrant habeas relief if the error is harmless. See Sandoval v. Calderon, 241 F.3d 765, 778 (9th Cir.

2000). When a state court has found a constitutional error to

be harmless beyond a reasonable doubt, a federal court may

not grant habeas relief unless the state court’s determination

is objectively unreasonable. See Mitchell v. Esparza, 540 U.S.

12, 17-18 (2003) (per curiam); Cooper v. Brown, 510 F.3d

870, 921 (9th Cir. 2007). Here, the Arizona Supreme Court

did not specifically address whether Towery’s federal due

process rights were violated, but found beyond a reasonable

doubt that the prosecutor’s misconduct did not contribute to

the verdict. It thereby performed the same harmless error

analysis it was required to do for a constitutional violation

under Chapman v. California, 386 U.S. 18, 24 (1967), and its

conclusion warrants our deference. See Early v. Packer, 537

U.S. 3, 8 (2002) (per curiam) (explaining that deference is

TOWERY v. SCHRIRO 16077
proper “so long as neither the reasoning nor the result of the

state-court decision contradicts” Supreme Court precedent).

The Arizona Supreme Court reasoned that if Towery’s lawyer had been aware of Meacham’s prior testimony in the robbery trial, the trial court would nevertheless have permitted

the evidence to be introduced — subject to impeachment

based on its prior inconsistent use. See Towery, 920 P.2d at

307. The court then noted the cross-examination that actually

did take place:

Q. Do you know for sure that [Towery was] talking

about Mr. Jones [the victim]?

A. I thought [Towery was] talking about when [he]

got busted before.

Q. So, in fact, you didn’t think [Towery was] talking

about Mr. Jones?

A. No, sir, I didn’t.

Id. On redirect, the prosecutor attempted to rehabilitate the

witness, but his attempt was limited to showing that Meacham

was uncertain either way about what Towery was referring to:

Q. Okay. The conversation that you overheard, was

it before or after all of this property came into the

house?

A. I believe it was after.

Q. And you don’t really know what the conversation

that you heard pertains to, do you?

A. No, sir.

Id. Because these exchanges undercut the value Meacham’s

testimony had to the prosecution’s case, the Arizona Supreme

16078 TOWERY v. SCHRIRO
Court concluded that “[a]ny impeachment defense counsel

would have obtained from having known of the testimony in

the prior trial was effectively achieved.” Id.

[2] This conclusion was objectively reasonable. We agree

that the cross-examination of Meacham created significant

doubt about whether the overheard statements had anything to

do with the murder of Jones. If Towery’s lawyer had known

about Meacham’s testimony in the robbery trial, any further

impeachment based on this prior inconsistent use would have

been largely cumulative. See Williams v. Woodford, 384 F.3d

567, 599 (9th Cir. 2004) (holding the defendant suffered no

prejudice from the suppression of cumulative impeachment

evidence because the witness at issue would not have been

cast in a significantly worse light).

We are also unpersuaded by Towery’s argument that

Meacham’s testimony was crucial to the prosecution’s case.

Towery notes the relative lack of physical evidence and the

state’s heavy reliance on Barker’s testimony, and he suggests

Meacham’s testimony provided the primary source of corroboration. It is true that the prosecutor relied on Meacham’s testimony in his closing argument. Towery’s counsel rebutted

this argument in his closing, however, highlighting both

Meacham’s hearing disability and his expressed uncertainty

about what the statement referred to. 

[3] Moreover, even granting that Meacham’s testimony

was important enough for the prosecutor to mention, we still

must view that evidence in the context of the case as a whole.

The prosecutor asserted from the outset of his closing that his

case rested on Barker’s testimony. After extensively summarizing Barker’s testimony, the prosecutor offered several

sources of corroboration. Some of these, such as the stolen

items found in Towery’s room and the security guard’s identification of Towery as one of the people he saw dropping off

Jones’ car, were technically consistent with Towery’s alibi, as

he admitted to purchasing items from Barker and being

TOWERY v. SCHRIRO 16079
involved in the disposal of Jones’ car. However, the prosecutor’s strongest source of corroboration was the testimony of

Monique Rousseau, who was Barker’s girlfriend at the time

of the incident. She testified that she heard Towery remark

upon seeing gay pornographic photographs found among the

stolen items, “[Jones] deserved it. The guy’s a pervert.”

1

 She

also testified that Towery took the lead in evenly dividing the

stolen money between himself and Barker, and that Barker

was in a state of shock, corroborating his testimony that he

was unprepared for and horrified by Towery’s murder of

Jones. 

[4] Even though Rousseau was not an ideal witness, given

her arguable bias as Barker’s girlfriend at the time and her

acknowledged drug use, her detailed testimony of the evening’s events had substantially more corroborative value than

Meacham’s equivocal testimony. In sum, the Arizona

Supreme Court’s harmless error determination was objectively reasonable.

Because we must deny habeas relief if the error is harmless,

we would affirm the district court on this ground alone. However, given the stakes involved, we think it is important to

analyze the issues thoroughly. We shall therefore explain why

Towery’s constitutional rights were not violated under any of

the clearly established due process frameworks governing

prosecutorial misconduct.

2. Napue Violation

[5] The knowing use of false evidence by the state, or the

failure to correct false evidence, may violate due process. See

Napue, 360 U.S. at 269. To establish a Napue claim, a petitioner must show that “(1) the testimony (or evidence) was

actually false, (2) the prosecution knew or should have known

1Towery admitted to having made this statement, but indicated that he

was referring to what Barker had done to Jones. 

16080 TOWERY v. SCHRIRO
that the testimony was actually false, and (3) . . . the false testimony was material.” United States v. Zuno-Arce, 339 F.3d

886, 889 (9th Cir. 2003) (citing Napue, 360 U.S. at 269-71).

[6] We hold that Towery’s argument fails at the second

Napue prong and thus do not decide whether it would also fail

at the first. The state argues there was no false evidence,

because Meacham testified accurately about what he had

heard and then acknowledged on cross-examination that he

thought the statement referred to a different incident. In

response, Towery argues that Meacham’s testimony “as used

in the murder trial” was false. In other words, the testimony,

even if technically accurate about what Towery had said, was

elicited in a manner that would mislead the jury about what

Towery actually meant. There is some support for Towery’s

view that accurate testimony could be delivered in a sufficiently misleading context to make the evidence false for

Napue purposes. Compare United States v. Vozzella, 124 F.3d

389, 390 (2d Cir. 1997) (recognizing that Napue applied to

“the use of evidence that was in part false and otherwise so

misleading as to amount to falsity”), and United States v.

Barham, 595 F.2d 231, 240-41 (5th Cir. 1979) (holding evidence was false when witnesses testified they had not been

offered leniency by “any of the attorneys” or “anybody in the

Northern District of Alabama,” but had in fact received promises from other authorities), with Byrd v. Collins, 209 F.3d

486, 517 (6th Cir. 2000) (noting that “in order to establish a

claim of prosecutorial misconduct or denial of due process,

. . . the defendant must show that the statement in question

was ‘indisputably false,’ rather than merely misleading.”

(quoting United States v. Lochmondy, 890 F.2d 817, 823 (6th

Cir. 1989))).

[7] We do not decide whether the use of Meacham’s testimony was sufficiently misleading to satisfy the first Napue

prong, because to satisfy its second prong Towery would in

any event still have to show that the state knowingly created

a false impression. In Barham, 595 F.2d at 239, for example,

TOWERY v. SCHRIRO 16081
the prosecution knew its witnesses had received leniency

promises and were answering questions in a very specific

manner to create the misleading impression that they had not.

Here, by contrast, the prosecutor did not have knowledge of

any such underlying facts. Towery argues that Ditsworth

knew Meacham believed the statement referred to the robbery

incident. But because Towery’s statement was actually

ambiguous, Meacham’s subjective belief about what Towery

was referring to is irrelevant. Ditsworth could not have knowingly created a false impression unless he knew what Towery

himself meant, and Towery does not argue that Ditsworth had

any such knowledge. We therefore hold that Towery’s Napue

claim fails at the second prong.

3. Brady Violation

[8] Under Brady, “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the

prosecution.” 373 U.S. at 87. For a Brady claim to succeed,

“[t]he evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is impeaching;

that evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued.”

Banks v. Dretke, 540 U.S. 668, 691 (2004) (quoting Strickler

v. Greene, 527 U.S. 263, 281-82 (1999)) (internal quotation

marks omitted). 

[9] Towery argues that the state failed to disclose it had

already relied on Meacham’s testimony for a different purpose in the previous unrelated robbery case. The state argues

that the prosecutor fulfilled his disclosure obligation by

informing defense counsel that Meacham had testified in the

prior trial. As the Supreme Court made clear in Banks, the

prosecution’s obligation under Brady includes the disclosure

of potential impeachment evidence, and the use of

Meacham’s testimony for a different purpose would certainly

16082 TOWERY v. SCHRIRO
have been a helpful impeachment device. Therefore, the question is whether the prosecutor was obligated to do more than

he did to make the defense aware of Meacham’s prior testimony and the manner in which it was used.

[10] We agree with the reasoning of United States v.

Albanese, 195 F.3d 389, 393 (8th Cir. 1999), which held that

the government’s failure to notify the defense that a witness

was testifying inconsistently did not violate Brady. In

Albanese, the court reasoned that, because the witness “gave

his prior testimony at a public proceeding” and “defense

counsel had ample opportunity to learn about [the] prior testimony,” there was no Brady violation. Id. Here, as in

Albanese, Towery could have obtained Meacham’s prior testimony to review for possible inconsistencies and to ascertain

how the prosecutor had used it. It is true that the trial court

denied Towery a transcript of the robbery trial, but the denial

was without prejudice. The court required defense counsel to

set forth “some facts which demonstrate an actual need other

than the bare conclusion that he needs the transcripts ‘to prepare a defense.’ ” There is no evidence that Towery attempted

to make such a showing regarding Meacham’s testimony or

its use at trial. Given these circumstances, we hold that the

state’s failure to provide more precise information about

Meacham’s prior testimony did not violate Brady.

4. General Prosecutorial Misconduct

Finally, we note the more general line of authority regarding prosecutorial misconduct and due process. These cases do

not address particular forms of misconduct, but instead establish the test for whether some generic misconduct rises to the

level of a due process violation. “The relevant question is

whether the prosecutors’ [misconduct] ‘so infected the trial

with unfairness as to make the resulting conviction a denial of

due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181

(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974)). The Arizona Supreme Court found that there was

TOWERY v. SCHRIRO 16083
misconduct even if it was unintentional. Towery, 920 P.2d at

306. Assuming that is so, we need only decide whether the

prosecutor’s misconduct so tainted the trial as to violate due

process.

In section I.D.1, supra, we have held that the Arizona

Supreme Court’s harmless error determination was objectively reasonable. For the same reasons, we also hold that the

court’s analysis was correct and that it applies here. Because

we agree that “beyond a reasonable doubt . . . the prosecutor’s

misconduct did not affect the verdict,” Towery, 920 P.2d at

307, we conclude the trial was not significantly “infected”

with unfairness. Any misconduct by Ditsworth therefore did

not violate due process under the Darden/Donnelly standard.

* * *

[11] Because the Arizona Supreme Court’s harmless error

determination was objectively reasonable, we hold that Towery is not entitled to habeas relief based on Ditsworth’s prosecutorial misconduct. We further hold that any prosecutorial

misconduct that did take place did not constitute a violation

of due process cognizable in a federal habeas petition governed by AEDPA.

II. Uncertified Issues

Towery raises several additional claims that were not certified for appeal either by the district court or this court. Under

Ninth Circuit Rule 22-1(e), uncertified issues raised on appeal

“will be construed as a motion to expand the COA and will

be addressed by the merits panel to such extent as it deems

appropriate.” We grant Towery’s motion to expand the COA

as to the two claims discussed below, and deny it as to all

other claims.

16084 TOWERY v. SCHRIRO
A. Standard of Review for a Certificate of

Appealability

A COA should issue if a habeas prisoner can show “that

reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and

citation omitted); accord Lambright v. Stewart, 220 F.3d

1022, 1025 (9th Cir. 2000). A claim “can be debatable even

though every jurist of reason might agree, after the COA has

been granted and the case has received full consideration, that

petitioner will not prevail.” Miller-El v. Cockrell, 537 U.S.

322, 338 (2003).

B. Judicial Bias at the Murder Trial

We grant Towery’s motion to expand the COA on this

claim because we conclude that jurists of reason might debate

whether it has been procedurally defaulted. See Slack, 529

U.S. at 484. Nonetheless, we hold that an independent and

adequate state default rule applies and federal habeas review

is barred.

1. Background

The presiding judge at Towery’s murder trial, Judge Hendrix, had previously presided over Towery’s trial and conviction for armed robbery. Towery argues that because of this,

Judge Hendrix was biased against him at his murder trial and

his resulting conviction violates the Due Process Clause. He

points to several adverse rulings and statements Judge Hendrix made during the murder trial that he contends show she

based some of her rulings on facts she learned outside of that

proceeding. 

TOWERY v. SCHRIRO 16085
Two different Arizona state courts addressed the judicial

bias claim in reasoned decisions. First, Judge Hendrix rejected

the claim on the merits in denying Towery’s petition for postconviction relief.2

 Second, Judge Keppel addressed it in Towery’s motion for rehearing of the petition for post-conviction

relief. Judge Keppel both rejected the claim on the merits and

found that it was “precluded under [Arizona Rule of Criminal

Procedure] 32.2(a)(3) because it was not raised on direct

appeal.” The Arizona Supreme Court summarily denied Towery’s single petition for further review of both decisions on

this claim. 

The district court rejected the judicial bias claim in Towery’s federal habeas petition, concluding that Judge Keppel’s

was the last reasoned state court judgment addressing the

claim, see Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), and

that federal habeas review of the claim was barred because

Judge Keppel explicitly found a procedural default under state

law. See 28 U.S.C. § 2254(d).

2. Analysis

Towery makes a colorable argument that he has successfully exhausted his judicial bias claim before the state courts

because (1) Judge Hendrix addressed it on the merits, without

applying a state default rule; (2) that decision was never

vacated or set aside; and (3) Towery also sought further

review before the Arizona Supreme Court. According to Towery, we should ignore Judge Keppel’s decision for purposes

of federal habeas review because he denied rehearing and left

2On the same day that he filed his motion for post-conviction relief,

Towery moved to disqualify Judge Hendrix from presiding over his postconviction relief proceedings, alleging bias. Although his motion to disqualify was factually related to the claim that his underlying conviction

was unconstitutional because of Judge Hendrix’s bias, it was legally distinct. Therefore, that the motion to disqualify was addressed and rejected

on the merits has no bearing on whether the due process claim we consider

here was exhausted or procedurally defaulted. 

16086 TOWERY v. SCHRIRO
Judge Hendrix’s decision in place, even though he did so in

a reasoned decision addressing the underlying claims, and

Judge Hendrix’s decision did not rely on procedural default.

Of course, when state courts overlook a procedural default

and decide the merits of a federal claim, federal review is not

precluded. See Panther v. Hames, 991 F.2d 576, 580 (9th Cir.

1993) (per curiam). 

[12] Towery’s position is ultimately unpersuasive. We

cannot ignore Judge Keppel’s decision explaining his denial

of Towery’s motion for rehearing. When it is evident from a

state court’s decision that the court has actually considered a

claim, we will not ignore the decision just because it is technically framed as a denial of rehearing or further review. Cf.

Bonner v. Carey, 425 F.3d 1145, 1147, 1148 n.13 (9th Cir.

2005) (according AEDPA deference to a California state

court’s reasoned denial of a “request for rehearing” of a state

habeas petition). 

[13] Because Judge Keppel found that relief for the judicial bias claim was barred under an independent and adequate

state procedural default rule, it follows that federal habeas

relief is also barred. See 28 U.S.C. § 2254(d).3 Therefore,

although we grant Towery’s motion to expand the COA

because jurists of reason might debate whether his claim was

procedurally defaulted, see Slack, 529 U.S. at 484, we conclude that it was defaulted and deny Towery’s habeas petition

as to this claim. 

C. Ineffective Assistance of Counsel: Failure to

Challenge Syringe Testimony

We grant Towery’s motion to expand the COA on this

claim because we conclude that it is adequate to deserve

3This result is unaffected by the fact that Judge Keppel also addressed

the merits of the claim. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989);

Comer v. Schriro, 480 F.3d 960, 964 n.6 (9th Cir. 2007). 

TOWERY v. SCHRIRO 16087
encouragement to proceed further. Id. Nonetheless, we ultimately reject the claim because, even according Towery’s

arguments the weight they are due, he has failed to establish

that the state court’s rejection of this claim was “contrary to,

or involved an unreasonable application of, clearly established

Federal law . . . or was based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C.

§ 2254(d). 

1. Background

Barker testified at trial that Towery was the murderer and

that, before strangling Jones, Towery had repeatedly and

unsuccessfully attempted to inject him with battery acid,

using an abnormally large syringe. The County Medical

Examiner’s testimony also suggested that someone had made

multiple, “not too skillful” attempts to inject the murder victim with an unknown substance. Towery contends his counsel

rendered ineffective assistance by failing to introduce evidence that Towery was a skilled intravenous drug user who

would not have been so clumsy and would have had access

to regular-sized syringes. In Towery’s view, this would have

impeached the credibility of Barker’s testimony and bolstered

Towery’s alibi, suggesting that Towery was not the murderer.

Towery raised this ineffective assistance claim before the

state court in his petition for post-conviction relief. The state

court denied the claim, finding that “[a]sking the defendant

about his proficiency with a syringe would have been more

prejudicial than probative” because “[it] would have unequivocally established defendant as an I.V. drug user” and “telling

the jury about defendant’s I.V. drug use is more prejudicial

than probative.” Therefore, according to the state court, Towery could not establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984), because there was “no

demonstrable reality that if trial counsel had [challenged the

syringe testimony] the outcome of the trial would have been

different.” The court also noted that “[n]o affidavit ha[d] been

16088 TOWERY v. SCHRIRO
provided to substantiate the element that the prevailing professional norms were not met.” Towery raised the same

claims in his petition for review by the Arizona Supreme

Court, which summarily denied review. The district court

upheld the state court’s decision under AEDPA as a reasonable application of federal law, reaching similar conclusions.

2. Analysis

Both the state post-conviction relief court and the habeas

district court understated the impeachment value of evidence

showing Towery’s skill in intravenous drug use and overstated the likely prejudice from admitting intravenous drug

use to the jury. 

Regarding impeachment value, the state court opined that

Towery “would not have been able to state that ‘if I had been

the one trying to stab the victim with a syringe, I could have

done it with greater proficiency.’ ” The supposed import of

this finding is not entirely clear, but the court apparently

believed that he could not have benefitted from attacking the

plausibility of Barker’s testimony ascribing to Towery the

clumsy, brutal way the murder was carried out.4 This reasoning is flawed. To the contrary, casting Barker’s testimony as

implausible would certainly have bolstered Towery’s claim

4The relevant discussion in the state court’s opinion reads in its entirety:

Asking the defendant about his proficiency with a syringe would

have been more prejudicial than probative. It would have

unequivocally established defendant as an I.V. drug user. The

defendant would not have been able to state that “if I had been

the one trying to stab the victim with a syringe, I could have done

it with greater proficiency.” 

The Court has been unable to find the testimony in the transcript that identifies the syringe used on the defendant as an “animal” syringe as opposed to a large syringe. Again, telling the jury

about defendant’s I.V. drug use is more prejudicial than probative. 

TOWERY v. SCHRIRO 16089
that Barker was lying about who committed the murder, and

that the murderer likely was Barker himself, not Towery.5

Similarly, the habeas district court concluded that evidence

establishing Towery’s skill with needles would have been of

limited value because “the jury could readily have concluded

that there is a difference in the care and skilled [sic] applied

when injecting oneself for the purpose of getting high as

opposed to injecting another person with the purpose of killing him.” This is true, but a jury could reasonably have

reached a contrary conclusion. Considering how important

Barker’s testimony was to Towery’s conviction, the mere fact

that an opportunity to impeach might have failed does not

necessarily establish that it was reasonable for Towery’s

counsel not to attempt it.

With regard to likely prejudice, Towery’s drug use was

already before the jury, a fact neither the state court nor the

district court recognized. Among several references to his client’s drug use, Towery’s counsel explained in his opening

statement that it was “not in dispute” that Towery “was using

crystal, or speed, or whatever you want to call it” during the

time of the murder. He also specifically elicited testimony

from Barker that Towery was using methamphetamine, and

that Barker and Towery had jointly purchased approximately

$400 of methamphetamine immediately after the crime.

Although we have not found in the record specific testimony

about intravenous drug use, one might reasonably doubt

whether the additional prejudicial impact of admitting intravenous drug use would clearly outweigh the evidence’s value to

Towery’s defense.

5For the same reason, the state’s contention that this evidence would

have been “inconsistent with, or at least irrelevant to” Towery’s alibi

defense is wholly unpersuasive. It certainly supports Towery’s alibi to

argue that the actions of whoever was present that night were not consistent with how Towery himself would have acted had he been there. 

16090 TOWERY v. SCHRIRO
In light of these considerations, we conclude that this issue

is adequate to deserve encouragement to proceed further and

therefore grant in part Towery’s motion to expand the COA.

See Slack, 529 U.S. at 484. But that does not end the matter.

We must still determine if relief is warranted. We conclude

that it is not.

[14] Strickland v. Washington and its progeny set a high

bar for a criminal defendant to establish that counsel’s performance was deficient. See Strickland, 466 U.S. at 689 (“[A]

court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.” (internal quotation

marks and citation omitted)); accord Matylinsky v. Budge,

577 F.3d 1083, 1090-91 (9th Cir. 2009). Although both the

state post-conviction relief court and the district court understated the potential net value of the syringe evidence Towery

claims his trial counsel should have introduced, it is true that

additional evidence about Towery’s intravenous drug use

might have had some prejudicial impact. Indeed, Towery’s

trial attorney might have deliberately avoided any reference to

Towery’s intravenous drug use for fear of leading the jury to

consider it more likely that Towery was the murderer given

his use of and access to hypodermic needles, notwithstanding

the evidence that the murder involved an abnormally large

needle and multiple, unskilled punctures. Under these circumstances, declining to introduce evidence of Towery’s skill

with and access to syringes probably did not fall outside “the

wide range of reasonable professional assistance.” Strickland,

466 U.S. at 689.

More to the point, even if Towery could establish deficient

performance, the state court’s explicit holding that there was

no prejudice under Strickland’s second prong was not “objectively unreasonable.” See Lockyer v.Andrade, 538 U.S. 63, 75

(2003). To establish prejudice, “[t]he defendant must show

TOWERY v. SCHRIRO 16091
that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694. Although the evidence about the syringe use was horrific and likely had a

strong impact on the jury as well as the sentencing judge, the

prejudice analysis must take into account that it was undisputed that the murder was actually accomplished in this

clumsy, horrific manner. Towery’s alibi defense disputed the

identity of the murderer, not the nature of the crime. In this

context, establishing Strickland prejudice would require Towery to show that if he had argued to the jurors that he was a

skilled intravenous drug injector, there is a reasonable probability that they would have disbelieved Barker’s testimony

that Towery was the murderer.

[15] Although the state court’s analysis was brief, we cannot say that its conclusion that Towery failed to make this

showing was objectively unreasonable. Even if evidence of

Towery’s skill with syringes would not have added to the

opprobrium flowing from evidence of his drug use already

before the jury, it nonetheless might have led the jury to consider it more likely that Towery was the murderer given his

use of and access to hypodermic needles, instead of less likely

on the theory that a skilled drug user probably would not have

used a big needle and miss veins. More importantly, considerable other evidence linked Towery to the murder, including

Jones’ gold dental crown and car keys found in Towery’s

briefcase, other stolen items found in Towery’s bedroom,

Towery’s fingerprint found on the housing of the compact

disc player that had been removed from Jones’ car and Barker’s girlfriend’s testimony that Barker and Towery split the

stolen money evenly and that Towery showed her photographs taken from the victim’s home and said “the guy

deserved it.”

6

 On this record, it was not objectively unreasonable for the state court to conclude that “there is no demon6As noted previously, some of this evidence was also technically consistent with Towery’s alibi. See section I.D.1, supra. 

16092 TOWERY v. SCHRIRO
strable reality that if trial counsel had [introduced this kind of

evidence] the outcome of the trial would have been different.”

In sum, we hold that this claim was adequate to deserve

encouragement to proceed further, see Slack, 529 U.S. at 484,

and therefore grant the motion to expand the COA to include

it, but we conclude that federal habeas relief is barred under

AEDPA. Although the post-conviction relief court’s discussion was brief and not entirely persuasive, it applied the correct standard and reached a result that was not “objectively

unreasonable.” Lockyer, 538 U.S. at 75.

III. Conclusion

The district court’s denial of habeas corpus is

AFFIRMED.

TOWERY v. SCHRIRO 16093