F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R O G E R W

. M U R

R A Y , Petitioner-Appellant
,

v

.

D O R A S C H R I R O , W arden, Respondent-Appellee

. No. 08-99013

D.C. No. 2:03-CV-00775-DGC

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na David G. Campbell, District J udg e, Presiding

Arg u ed and Submitted September 13, 2012

L as Veg as, Nevada

F iled March 17, 2014 Amended F ebruary

14, 2018

B efore: J ohnnie B . Rawlinson, J ay S. B y bee, and Sandra S. I kuta, Circuit J udg es.

Order; Opinion by

J udg e RawlinsonM U R R A Y V

. S C H R

I R O 2

SUMMARY *

Habeas Corpus/Death P e nalty

The p anel amended an o p inion affirming the denial of a 28 U.S

. C

. § 2254 habeas corpus petition challeng ing a conviction and capital sentence for murder, denied a petition for rehearing
, and d enied on behalf of the court a p etition for rehearing en banc.

I n the amended opinion:

The panel affirmed the d enial of relief as to petitioner’s chang e of venue motion, in c l u d i ng as to petitioner’s contention that there is a heig htened oblig ation t o c h ang e

venue in c apital cases. T he p anel held that the state court’s decisio n

— t h a t the substantial media coverag e of this “sensational, small-town murder” was not cons t itutionally prejudicial—was not contrary to or an unreasonable application of Supreme Court precedent.

F or the r easons set forth in R o bert M urray v. S c hriro
, 745 F .3d 9 84 (9th Cir. 2014), the p a n el affir m e d t h e denial o f relief a s to petitioner’s claim u nder B atson v. Ken t u c k y , 476 U.S. 7 9 (1986). The panel wrote that, in addition, it was not persuaded t h a t the outcome o f the Batson issue would chang e h ad co m p a risons been made between prospective jurors.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M U R R A Y V

. S C H R

I R O 3

The panel affirmed the d enial of relief as to petitioner’s claim that h e was denied due p rocess based on a belated request for access to the sanitiz ed crime scene.

The panel affirmed the d enial of relief as to petitioner’s request f or jury instr u ctions on voluntary intox ication a nd

s e cond deg ree murder. The panel held that the evid en c e i n the record did not support the request, and that t h e state court’s denial of relief was consistent with Supr e m e C ourt precedent.

The panel affirmed the d enial of relief as to petitioner’s

c l a i m that the sentencing court misapplied Eddings v

. Oklahoma
, 455 U.S. 104 (1982), and its prog eny by requiring

a nex us between evi d e nce o f petitioner’s dy sfunctional childhood and his commission of the crimes. The panel h eld that any such causal nex us error was harmless.

The p anel held that the state c o u rt’s d e n i a l of relief on petitioner’s c laims of ineffective assista n ce of counsel was not contrary to or an unreasonable application of S trickland

v. W ashington
, 466 U.S. 668 ( 1984), and d i d not warrant a remand under Martinez v. Ryan , 132 S. Ct. 1309 (2012).M U R R A Y V

. S C H R

I R O 4

COUNSEL

J ohn E. Charland (arg

ued), The Charland L aw F irm, Phoenix
, Ariz ona, for Petitioner-Appellant.

J effrey A. Z ick (arg

ued) and J acinda A. L anum, Assistant Attorney s General, C a p i tal L itig ation Section; L acey Stover Gard and Kent E. Cattani, Chief Counsel; M a rk B rnovich, Attorney General; O ffice of the Attorney General, P h oenix
, Ariz ona; for Respondent-Appellee.

ORDER

The opinion in this case, publishe d at 7 4 6 F .3d 418 (9th Cir. 2014), is hereby amended as follows:

1. 746 F .3d at 448, Claim Six - Batson Violation

a. Chang e the Murray citation to <745 F .3d 984, 1006–10 (9th Cir. 2014)>.

b. I nsert the following lang uag e at the end o f the section : <I n addition, we are not persuaded that the outcome of the Batson issue wo u l d chang e had comparisons been made between prospective juror Alvarado and p r ospective jurors A and N

. A s Rog er n oted, b oth these jurors “edg ed

. . . a w a y f rom their questionnaire answers” indi c a t i n g indecisiveness

. The third juror mentioned b y Rog er, J uror B
, g a v e n o i n d i c a t i on o f indecisiveness>.M U R R A Y V

. S C H R

I R O 5

2. 746 F .3d at 455, Clai m Tw enty-Six - F ailure t o Appropriately Consider Mitigating Evidence

a. Second Parag raph, last line: Ch a n ge < Murray
, 906 P.2d at 577> to <

Id . at 577>.

b. F ourth Parag raph:

i. L ine 4 - Delete the c itation to Towery v. Ryan
, 67 3 F.3d 9 33, 946 (9th Cir. 2012) (per curiam).

ii. Delete the last s e ntence beg inning with <On the other h and,> throug h the citation to Lopez

v. Ryan
, 630 F .3d 1 1 98, 1204 (9th Cir. 2011), and the accompany

ing parenthetical.

3. 746 F .3d at 4 55–56: D el e te the fifth p a rag r aph on pag e 455, b e ginning with <I n determining whether> throug h th e c i tation to Styers
, 547 F .3d at 1035 a nd the a ccompany

ing parenthetical; the last parag raph o f
pag e 4 55, continuing to pag e 4 56, beg inning with <After closely rev i e w i ng > throug h < See id

. a t 577>; and the following parag raph on pag e 456, beg inning with <Taken in the full contex t> throug h the citation
to < S e e L o p ez , 630 F .3d at 1204>, and the
accompany

ing parenthetical.

4. 7 4 6 F .3d at 4 57: Delete the final parag raph of the section, beg inning with <I n sum,> thr o u g h the citation to < See Sto kley
, 705 F .3d at 404>, and the
accompany

ing parenthetical.M U R R A Y V

. S C H R

I R O 6

5. 746 F .3d at 466, SUMMARY

Replace the third parag raph o f the section b e g inning with <As the Ariz ona Supreme Court d etailed>, thr o ug h <with Supreme Court precedent> with the following lang uag e : <Any causal nex us erro r in the
state court’s consideration, at sentencing
, o f mitig ation evidence relating to Rog er’s troubled childhood was harmless.>

A copy of the Amended Opinion is attached.

W ith these amendments, the panel has voted to deny the Petition for Rehearing

. The full c ourt has been advised of the petition f or rehearin g e n banc, and no judg e of the court has requested a vote o n whether to rehe ar the matter en banc. F ed. R. App. P. 35.

The petition for rehearing and petition f o r r ehearing en banc, filed March 8, 2017, are DENIED

. No further petitions for rehearing may be filed.M U R R A Y V

. S C H R

I R O 7

OP INION

RAW L I NSON, Circuit J udg e:

Petitioner-Appellant Rog e r Murray (Rog er) appeals the district court’s denial o f his p etition for habeas corpus challeng ing the death sentence impo s e d following his convictions for murder and armed robbery

.

I. BACK G ROUND 1

Dean Morrison (Morrison), ag e 65, an d J acqueline A p pelhans ( Appelhans), ag e 60, operated a store a n d
restaurant in Grasshoppe r J u nction, a rural area outside King man, Ariz ona. S

ee State v. Mu r r a

y , 906 P.2d 542, 553 (Ariz

. 1 995). O n May 14, 1991, b etween 8:30 and 9:00 a.m.,

an acquaintance discovered the bodie s of Morrison a nd Appelhans ly ing face down, in their bath r obes, after being shot multiple times in the head. See id. at 553–54.

At the crime scene, a revolver was found on the couch and a .22 caliber semiautomatic rifle was leaning ag ainst the wall. See id. at 554. Nea r t h e bodies w ere various

. 22 a nd .38 c aliber b ullets, as well as shotg un pellets. See id. Two weeks after the cr i m e , Morrison’s sister found a .25 c aliber bullet in the pantry

. See id.

I n the living r oom, drawers were pulle d out and the
contents sca t t er e d

. See id. The bedrooms and kitchen were

a l s o ransacked. See id. A .303 r ifle was on a bed a n d $ 1 7 2

was on a d esk chair. See id. Morrison’s wallet c ontaining

1 T h e f acts are tak en f

ro m th e o p in io n o f t

h e S u p rem e Co u rt o f A rizo n a. S ee S ta te v. Mu rra

y , 9 0 6 P .2 d 5 4 2 (A riz. 1 99 5 ) (in b an c).M U R R A Y V

. S C H R

I R O 8

$800 wa s u n d i sturbed in his pants pocket. See id. The drawer from the cash reg ister in the store had been removed, and the g as reg ister was left on. See id. Morrison’s g lasses,

a flashlig ht
, and a set of key s were found on the p a tio of the
store. See id. I n addition, three live .38 caliber bullets were found near the g as pumps. See id.

D e tective L ent o f the Mohave County Sherif f’ s Department and another officer f ound and noted four sets of footprints, o ther th a n t h o se of the investig ating officers a nd the a cquaintance who discovere d the bodies. S ee id. Two
sets o f footprints belong ed to the victims, a third set was made by tennis shoes, and the fourth set by w estern boots. See id. A different set of t h r e e f o o tprints were made by the tennis shoes, the western boots, and Morrison’s slippers. See id. Morrison’s footprints indicated resistance b y him. See id. At the time of their arrest, Rog er w as wearing t e n n i s s h oes and Robert was wearing western boots
, b o t h of which were consistent with the footprints analy z ed at t h e crime scene. See id. at 553–54.

Morrison’s autopsy revealed that h e had suffered a shotg u n blast that shattered his skull. S e e id. He also suffered two g unshot wounds f rom a larg e caliber pistol. See id. at 554–55. A

. 38 caliber bullet was recovered from the back of his neck a

nd l a r ge caliber buckshot was removed from h is head. See id. at 555. F ound nex t to Morrison was a fired .38 caliber bullet. See id. Morrison had lacerations a nd abrasions on his face, e lbow, forearm, knee, and thig h

. S ee id. T he autopsy revealed that these injuries occ u rr e d at approx imately the same time as the g unshot wounds. See id.

Appelhans was shot w ith at least three different g u ns. See id. A shotg un blast sha t t ered h er head. See id. Two .38M U R R A Y V

. S C H R

I R O 9

caliber slug s were removed from her skull. See id. She also suffered .22 c aliber w ounds that e n t e r ed at the back of the neck a nd ex ited her face. See i d

. Aspiration hemorrhag ing i n her lung s indicated a lapse o f time between the ini t i al
g unshot and death. See id. T he shotg un blast was definitely l ethal, and the .38 caliber bullets w ere a lso a possible c a u s e of death. See id.

B e fore the bodies were d iscovered, p olice officers f ound

o n e o f Morrison’s tow trucks abandoned on I n terstate 4 0 westbound near K ing man, Ariz o na. See id. at 5 53. Rog er and Robert were arrested on unrelated charg es on I nterstate 40 eastbound near Holbrook, Ariz ona. See id. The brothers were driving a F ord sedan with Alabama license plates. See id. at 5 54. W hen an officer attempted to stop the vehicle, the brothers fled, d

riving in ex cess of eig hty -five miles per hour. S e e id. During their flig ht, the brothers breached a man n e d and armed roadblock. See id. The b r o t hers stopped only

a f ter their vehicle ran off the r o ad into a wash that i m p e d e d further prog ress. S

ee id. Robert, the d r i v e r , threw a .38 revolver containing four bullets from the car. See id. Rog er discarded a loaded .25 semia u t o m a t ic pistol. See id. Additionally
, Robert had two s p e nt shotg un shell casing s in his pants pocket. See id.

A loaded twe l v e g aug e sawed-off shotg un and shotg un shells w e r e discovered inside the car. See id. A checkered cushion c over that matched the cushion o n Morrison’s couch contained rolled coins stamped “Dean’s Enterprises, Grasshopper J unction, King man, Ariz ona, 8 6 401.” Id. A blue pillow case c ontained approx imately $1400 in c oin rolls and $ 3300 in cash. See id. Gloves and a h o t e l r e c e i pt were also in the vehicle. See id. Records from the hotel indicated that the b r o t h e r s had listed a F ord sedan, the d escription o fM U R R A Y V

. S C H R

I R O 10

w h ich matched the vehicle they were driving at the time o f their arrest, o n the hotel reg istration card. See i d

. Officers retrieved from the sed a n an a tlas with circles around the lo c a t i ons of two rural establishments, the Oasis a nd Grasshopper J unction, w hich were not otherwise indicated on the map. See id.

Key s f ound in Robert’s pants pocket were later identified

as the key s to a pickup truck o n Morrison’s p roperty

. See id. A s canner and connecting knob in the sedan fit an em p t y bracket in the abandoned to w truck. See id. I t was dete r m i n e d t hat the c asing s found at the crime scene and in Robert’s pocket were fired from the g uns possessed b y Rog er and Robert. S

ee id. a t 555.

Human blood and tissue were found on Robert’s shirt, on Rog er’s pants, and on the cushion cover. See id. The blood

on Rog er’s p ants could have come from either victim or from Robert, but not from Rog er. See id. The b l o o d on Robert’s shirt was consistent with that of either victim, but not with the blood of Rog er or Robert. See id. The blood on the cushion

cover could h ave c ome from Appel h ans, but not from Mor r i s o n or the Murray s. See id. No DNA tests were conducted. See id.

The brothers were indicted for the first deg r ee murders o f Morrison and Appelhans an d f or the armed r o bbery o f Morrison. See id. A jury c onvicted them of all charg es. See id. The first d e g ree murder verdicts w ere unanimous for both premeditated mur d e r an d f elony murder. See id. After separate sentencing hearing s, the trial court f o u n d that the
sta t e h ad proven three ag g r avating circumstances a s to e ach defendant: the murders were committed for pecuniary g ain,M U R R A Y V

. S C H R

I R O 11

as defined in A.R.S. § 13-703(F )(5); 2 the murders were especially heinous, cruel or depraved, a s provided in § 13- 703(F )(6); 3 and the defendants committed multiple homicides, as described in § 13-703(F )(8). 4 See id. F inding the mitig a tio n evidence insufficient to outweig h the
ag g r avating circumstances, the trial c ourt denied leniency for both defendants and impose d a sentence of death. See id.

2 A .R.S. § 1 3

- 7 0 3 (F)(5 ) (1 9 9 2 ) p ro v id ed :

A g g rav atin g circu m s tan ces t o b e co n s id ered sh all b e th e f o llo w in g :

. . . (5 ) T h e d ef

en d an t co m m i t t ed th e o f f en se as

co n s id eratio n f

or th e receip t , o r i n ex pectatio n o f th e receip t, o f

an y th in g o f p ecu n iary

v alu e.

3 A .R.S. § 1 3

- 7 0 3 (F)(6 ) (1 9 9 2 ) p ro v id ed :

A g g rav atin g circu m s tan ces t o b e co n s id ered sh all b e th e f o llo w in g :

. . . (6 ) T h e d ef

en dan t co m

m itted t h e o f f en se in an esp ecially h ein o u s , cru el o r d ep rav ed m an n er.

4 A .R.S. § 1 3

- 7 0 3 (F)(8 ) (1 9 9 2 ) p ro v id ed :

A g g rav atin g circu m s tan ces t o b e co n s id ered sh all b e th e f o llo w in g :

. . . (8 ) T h e d ef

en d an t h as been co n v icted o f o n e o r m ore

o th er h o m i cid es, as d ef

in ed in § 1 3

- 1 1 0 1
, w

h ich w ere

co m m itted d u rin g th e co m

m issio n o f th e o f f en se.M U R R A Y V

. S C H R

I R O 12

The Ariz ona Supreme Court aff i r m e d the convictions a

nd
sentences. See id

.

A. Direct Appeal - Robert and Roger

O n October 26, 1995, the Ariz ona Supreme Cou r t affirmed the convictions and sentences. See id

. a t 553. On direct appeal, the b rothers raised five issues: (1) jury selection ; (2) pretrial motions; (3) evidentiary issues; (4) motion for acquittal; a nd (5) special verdict form. See id. at 555–65. Rog er raised five additional trial issues: ( 1) jury sequestration; (2) jury i n s t r uctions; (3) request for mistrial; (4) p rosecutorial misconduct; and ( 5) visitation of the crime

s c e n e. See id. at 565–69. I n a ddition, Rog er raised thr e e sentencing issues: ( 1) objective standards and prosecutorial discretion; (2) independent r e v iew; and (3) ag g ravating factors. See id. at 5 69–71. Rog e r also raised issues related to the following statutory mitig a tion factors: (1) cap ac i t y to appreciate wrong fulness of conduct or c o nform conduct to requirements of the law, (2) relatively mi n o r participation; (3) ag e; (4) duress; and ( 5) n o reasonable fo reseeability that his conduct would create a g rave r i s k o f death. S ee id. at 573–77.

The Ariz ona Supreme Court also addressed the following nonstatutory mitig a tion factors that Rog e r raised during trial: (6) dy sfunctional childhood and family r e lations; (7) medical treatment; (8) remorse; ( 9) d rug and alcohol use; a nd (10) mental health. See id. at 577

– 7 8

. F or the first time on d i r e c t a p p e a l R o ge r u r ge d a s m i t i ga t i o n f a c t o r s : (11) education; (12) residual o r l ing ering doubt; ( 13) felony murder instruction; and (14) cooperation. See id. at 578.M U R R A Y V

. S C H R

I R O 13

1. Jury Selection

The orig inal master jury list u sed was composed of a oneand-a-half-y

e ar-old driver’s license list in violation o f Ariz ona law. See id

. at 5 5 5

. J u st day s before trial was scheduled to beg in, the trial court ordered that a new jury list be created using both the old driver’s license list and a list o f
reg istered voters. See id

. The jury commissioner advised the trial c ourt that the n ew list would g enerate adequate potential jurors b y the date of trial, even thoug h the deadline to respond

was bey ond the date trial was scheduled to beg i n

. See id

. R o b ert a nd Rog er arg ued that (1) the truncated time t o respond to the jury questionnaire r e sulted in fewer potential j u r o r s from more remote portions of the county ; and (2) t h e one-and-a-half-y

ear-old driver’s license list resulted in fewer
y oung prospective jurors. See i d

. Robert and Rog er

c o ntended that these infirmities denied them a jury of th ei r peers because they hailed f rom a small, r

ural area in Alabama and were y oung at the time of trial. See id

. at 555–5 6

. The Ariz ona Su p r eme Court concluded that Robert and Rog er failed to establish the lack of a fai r a n d impartial jury o r prejudice. See id. The brothers failed to show that they were denied the rig ht to have jurors selected from a fair crosss e ction of the community
, o r sy stematic ex c lusion of a n y discrete seg ment of the community

. See id. at 556. The court noted that “failure to follow statutory procedures is harmless, absent some separate showing of prejudice or discrimination . . . .” Id.

The brothers also contended that the jury commissioner’s

use o f standardless ex clusions violated their c onstitutional

r i g hts. See id

. H owever, the Ariz ona Supreme Cou r t determined that the jury commissioner, within her discretion,

ex c u sed and notified potential jurors in accordance with stateM U R R A Y V

. S C H R

I R O 14

law. See id. at 5 57. The court concluded that the brothers

were not den i e d t h e i r r ig ht to a jury drawn from a fair cross–section of the c o m m u nity
, because the criteria used

were neutral and did not “co nstitute sy stematic ex clusion.” Id. (citation omitted).

F in a l l y , Robert and Rog er asserted a Batson 5 violation when the prosecution used peremptory c halleng es to dismiss the only two H i s p a n i c potential jurors. See id

. at 5 57-58. The Ariz ona S upreme Court rejected the Batson challeng e , concluding that the t r i al court’s acceptance of the prosecutor’s race-neutral ex planation for striking t h e Hispanic jurors was not an abuse of discretion. See id.

2. Pretrial Motions

a. Severance

The Ariz ona Supreme Court concluded that the trial court did not a buse its discretion in declining to sever the brothers’

c a s e s. See id. at 558. The court n oted that “joint trials, a r e the r ule rather than the ex ception

. . . .” Id. (citation omitted). The court also pointed out that the c r imes were so intertwined that it w ould have been virtually impossibl e to sever the evidence, because the evidence impl i c a t ed the brothers equally

. See id. The jury q uestionnaire s c reened out prospec t ive jurors who would have trouble seg menting the evidence, and the trial court instructed the jury to consider the evidence sepa rately ag ainst each defendant. Under these circumstances, the Ariz ona Supreme Court found no prejudice. See id.

5 Ba tso n v. Ken tu cky , 4 7 6 U.S. 7 9 (1 9 8 6 ).M U R R A Y V

. S C H R

I R O 15

b. Chang e of Venue

The Ariz ona Supreme Court determined that Robert and Rog er failed to prove presumed or actual prejudice based on the denial of their request for a chang e of venue due to pretrial publicity

. See id. at 559. The Court e mphasiz ed that the brothers failed to show any pretrial publicity that w as so outrag eous that the trial was “ utterly corrupted.” Id. (citation omitted). A ny security meas u r es w ere larg ely effectuated

w hen jurors were unlikely to b e present. See id. O n l y prospec tive jurors who pledg ed to decide the case solely on t h e evidence were empaneled, and empaneled jurors w e r e repeatedly admonished to avoid media coverag e. See id. After review i n g this record, the Ariz ona Supreme Court affirmed the trial court’s d e n ial of the requested venue chang e. See id.

c. Hy brid Representation

After noting that there is no rig ht to h y brid representation (some combination of self-representat i o n and counsel), the Ariz ona Supreme Court held that the trial court acted within its discretion when it denied the b rothers’ requests for hy brid representation in the a

bsence o f irreconcilable conflict o r incompetent counsel. See id. at 560.

d. L ibrary Access

Citing Bounds v. Smith
, 430 U.S. 817 (1977), the A riz o na Supreme Court held that because the brothers were provided with counsel throug hout the p roceeding s, their constitutional rig ht to access the court was afforded, reg ardless of whether they were able to personally access leg al materials. See id. at 561.M U R R A Y V

. S C H R

I R O 16

3. Evidentiary Issues

The brothers challeng ed the admissibility of crime scene photog raphs and footprint comparisons, and arg ued that the
court improperly prevented them f rom impeaching a witness. See id. a t 561–64. The Ariz ona Supreme Court determined that the challeng ed photog raphs were relevant to the case a nd

were not unduly inflammatory

. See id. a t 561–62. The court also r ejected the challeng e to footprint comparisons made b y

a detective, holding that the trial court did not abuse its discretion in qualify ing the d etective a s an ex pe r t where the detecti ve had ex tensive tracking ex perience in criminal investig ations and had previously b een qualified as an ex pert in state and f

ederal court. S

e e i d

. at 5 62–63. Any issue o f
proper methodolog y “went to t h e w eig ht rather than admissibility .” I

d. at 563 (citation omitted).

F inally
, the brothers contended that the trial court impermissibly precluded impeachment of the detective w ho testified r eg arding the footprint evidence. See id. a t 563–64. During cross-ex amination, the detective admitted that he h ad previously lied under oath. See i d

. at 563. After h earing
arg ument in chambers, the trial court dete r mined that the relevant ex trinsic evidence of the detective’s truthfulness (or lack thereof) was minimally p robative, but far outweig h ed b y i t s p rejudicial and confusing nature. See id

. The trial co u r t

was of the view th at a d m i ssion of the ex trinsic evidence to impeach the detective w ould essentially resu l t in the trial o f

a collateral matter. See id

. a t 563–64. The Ariz ona Supreme Court concluded t h a t the trial court did not abuse its discretion in apply ing the Ariz o na Rules of Evidence. See id

. at 564.M U R R A Y V

. S C H R

I R O 17

4. Motion for Acquittal

Robert and Rog er moved for acquittal, arg uing that there

was not substantial evidence to support a conviction. See id.
at 564. The Ariz o na Supreme Court concluded that there was substantial e vidence supporting the robbery a nd felony murder convictions, including sig ns o f a strug g le, to establish that the defendants used force to rob the victims. See id. The
court also clarified that th e prosecution did not need to establish that Rog er killed or intended to kill to prove felony murder u nder Ariz ona law. See id. at 564-65. R a t h e r , the prosecution need only establish that a principal or accomplice attempted to commit or committed a robbery and a person

was killed d

u ring the commission of and in furtherance of the robbery

. See id. at 565.

F urther, the court a ffirmed the ex i s t ence of substantial evidence supporting

the convictions for first-deg ree murder, namely evidence establishing that Robert a n d Rog er were present at the crime scene and partici p a t ed in the crimes, including evidence from the c r ime scene found on the brothers and the ex ecution-sty le murders. See id.

F inally
, the Ariz o na Supreme Court held that the trial
court issued a special verdict that was in the record, a s required by law, althoug h not sp e c ifically titled “Special Verdict.” Id.

B. Direct Appeal - (Trial Issues)

1. Jury Sequestration

Althoug h the trial court denied Rog er’s motion to sequester the jury

, the jury was repeatedly admonishe d t oM U R R A Y V

. S C H R

I R O 18

avoid media coverag e

. See id

. at 566. Rog er failed to assert

or establ i s h t hat the jurors f ailed to follow the trial court’s admonitions. See id. The Ariz o na Supreme Court concluded that the trial court did not a buse its discretion w hen it denied the sequestration request. See id.

2. W illits Jury Instruction 6

The Ariz ona Supreme Court concluded that the evidence R og er asserted that the state failed to preserve, such a s t h e ty pes of shoes worn by others at the crime scen e a nd fastfood remnants, would not have tended to ex onerate him. See id. Therefore, the trial court acted within its d iscretion when it denied the requested W illits instruction. See id.

3. Intoxication Instruction

Rog er asserted that h e w as entitled to an intox ication instruction, because on the nig ht of th e m u rders, he a nd Robert h ad b een drinking at a local bar. See id. However, the
manag er o f the bar testified that the brothers were “handling themselves very well.” Id. I n view of the trial court’s finding that there was no evidence that alcohol consumption affected the brothers’ “abil i t y t o think, function, or form intent,” the Ariz ona Supreme Court concluded that Rog er failed to meet his burden of showing that consumption of a lcohol neg ated an element of the crime. Id. at 566–67 (citations omitted).

6 S ta te v. W

i llits
, 3 93 P .2 d 27 4
, 2 76
, 2 79 (A riz. 19 6 4 ) (in b an c), req u i res

a j u ry in stru ctio n w

h en t h e state d estro y s m aterial ev id en ce th a t w ou ld allo w th e j u ry to in f

er t h at t h e facts im

p licated b y th e m aterial ev id en ce are ag ain st th e state’ s in terest.M U R R A Y V

. S C H R

I R O 19

4. Second-Degree Murder/Lesser I ncluded Offense Instruction

The Ariz ona Supreme Court ex plained that an instruction on second-deg ree murder would pertain, if at all, only to the premeditated murder c ount and only if supported by the evidence. See id. at 567. Due to the substantial evidence o f premeditation in the rec o r d, the Ariz ona Supreme Court
ag reed with the trial court that an instruction o n seconddeg ree murde r was contraindicated because the jury could have only ratio n a l l y drawn the inference that Robert a nd Rog er premeditated the murders. See id.

5. Request for a Mistrial

Rog er’s request for a mistrial stem m ed from witness
statements referring directly or indirectly to his in-custody
status. See id. a t 5 67. The A riz ona Supreme Court concluded that the jurors were already aware that the b rothers had been arrested and were in custody at some point prior to trial. The
court ruled that such knowledg e was n o t prejudicial a nd did
not deprive the brothers of their r i ght to a presumption o f innocence. See id. at 568.

6. Prosecutorial Misconduct

Rog er alleg ed the following instances of misconduct:

(1) A detective’s joking ab out the F ederal Bu r e a u o f I n v e s t i ga t i o ns [ F BI ] w h i l e testify ing

. The objection to the F B I comment

w as sustained b ased on irrelevance and the jury was instructed to disreg a rd it.M U R R A Y V

. S C H R

I R O 20

(2) Discussion by officers in the courthouse library that defendants were using the “fecal defense”-throwing up any thing and hoping something sticks. T he trial court thoroug hly probed this issue a

nd c o ncluded that there h ad been n o discussion o f the ev i d e nce and that the jurors were u nlikel y to have heard the discussion.

(3) The prosecutor’s allege d joking with a witness in front of the jur y a b o ut whether a bartender at the Temple B ar had g one fishing in Mex ico. Defe n d ant waived this issue for failure to object at trial. See State v

. W hite
, 564 P.2d 888, 892 (Ariz . 1977).

(4) The prosecuto r’ s joking with someone while on a ciga r ette break about being subpoenaed, w hile t w o jurors stood nearby

. The p rosecutor himself broug ht the incident to the court’s atten tion; neither defendant objected [ n] or moved for a mistrial in the trial court. Thus, defendant waived this issue.

( 5 ) I n closing arg ument, the prosecutor’s refer ring to defendants a s “the boy s f rom A labama.” Defendant waived this issue b y failing to object at trial. See State v. H ankins
, 686 P.2d 740, 747 (Ariz . 1984).

(6) T he prosecutor’s stating that a .25 c aliber bullet found on the premises had been fired b y

one of the b rothers. The arg ument was pe r missible b e c ause a ballistics ex pert foundM U R R A Y V

. S C H R

I R O 21

that the bullet matched the p istol Rog er threw from the car.

(7) Reference in closing arg ument by the state to defendants feeling a “sick ex citement” in committing t h e murders. T he trial court cautioned the p rosecutor and the prosecutor made no more such references.

Id.

The Ari zona Supreme Court determined that the
p r o secutor’s conduct did not neg atively influence the trial because Rog er failed to establish that the prosecutor’s actions affected the jury ’s verdict in any way

. See id.

7. Visitation of the Crime Scene

The Ariz ona Supreme Court determined that the trial
court did not a

buse its discretion by deny ing Rog er’s request to revisit the crime scene. See id

. at 569. On the fourth day of trial, more than a y ear after the c rim e was committed, Rog er filed a motion to revisit the c rime scene. See id

. (citing Ariz

. R. Crim. P. 15.1(e)). The trial court denied the motion because Rog er had failed t o show a substantial n eed for the second inspe c tion. See id

. Rog e r ’s attorney had previously

ex a mined the c rime scene w ith investig ators, and the attorney and investig ators were still available. Additionally
, the crime scene had been cleaned. See id.M U R R A Y V

. S C H R

I R O 22

C. Direct Appeal - (Sentencing Issues)

1. Objecti v e S

t a n d a r d s a n d Pr o s e cutorial Discretion

The A r i z o na Supreme Court noted that Rog er’s
arg uments reg a

rding th e alleg ed lack of objective standards for imposing the death penalty and th e b road discretion afforded the prosecution in seeking the death penalty h ad been rejected in previous cases. See id. (citing State v

. Salazar
, 8 4 4 P .2d 566, 578 (Ariz

. 1 992) (in banc); State v

. Correll
, 7 1 5 P.2d 7 21, 737 (Ariz

. 1986) (in banc); State v

. Harding
, 670 P.2d 383, 397 (Ariz . 1983) (in banc)).

2. Independent Review

The Ariz ona Supreme Court e x plained that it conducts an independent review of death sentences for error, d e t e rmines whether the ag g ravating circumstance s were p roven bey ond

a reasonable d oubt, considers mitig ating circumstances, a nd weig hs the ag g ravatin g f a ctors and the mitig ating circumstances anew to decide w hether leniency is warranted. See id.

3. Aggravating Factors

Rog er challeng ed a ll t h r ee of the following ag g ravating factors found by

the trial court:

A. D efendant committed the o f fense a s consideration for the receipt, or in ex pectation of the receipt, of any

thing of pecuniary value. A.R.S. § 13-703 (F )(5).M U R R A Y V

. S C H R

I R O 23

B

. Defendant committed the o f f e n se in an especially heinous, cr

u e l, or depraved manner. A.R.S. § 13-703 (F )(6).

C. Defendant has been convicted of one o r

more other homicides w hich were committed during the commission of the offense. A.R.S. § 13-703 (F )(8).

Id.

The Ariz o na Supreme Court conclu d e d that there was substantial evidence to establish that Rog er c ommitted the crime for pecuniary g ain
, i

. e

. , that there was financial motivation. See id. A m o n g other evidence, a number o f items, including cash were taken. See id

. a t 569–70. The record a lso supported a finding that the crimes were

e s p e c i a l ly heinous, cruel, o r depraved. See id. at 570. The victims were kidnapped at g unpoint, were taken by surprise, and were aware of their imminent demise. See id. The sig ns of strug g le and fear, e.g. , Appelhans c l utching Morrison’s
arm, established mental ang uish as well as pain and suffering

. See id. F inally
, the elder l y , helpless victims were subjected
to g ratuitous violence and the murders were senseless. See id. at 571.

4. Multiple Murders

Citing its precedent, the Ariz ona Supreme Court rejected Rog er’s arg ument that double jeopardy foreclosed app l i c a t i o n of t h e multiple homicide ag g ravating factor where the murders were part of t h e same criminal offense. See id. (citing State v. Glenway
, 823 P.2d 2 2, 34–35 (Ariz

. 1991) ( in banc)).M U R R A Y V

. S C H R

I R O 24

5. Mitigating Circumstances

The Ariz ona Supreme Court reviewed and addressed the following mitig ating circumstances presented by Rog er:

a. Capaci ty to Appreciate W rongfulness of C o n d u c t o r C o n

f o r m C o n d u c t t o Requirements of the Law

A f t e r discussing Rog er’s juvenile problems, head i n j u r i e s , hy p eractivity
, and substance abuse, the Ariz ona Supreme Court determined that Rog er failed to establish that these factors, either individually o r in combination, affected his capacity to a p p r eciate the w rong fulness of his conduct or to confirm his conduct to the r equirements of the law. See id. at 573–76.

b. Relatively Minor Participation

Rog er asserted that Robert’s jailhouse l e tters to him, in which Robert admitt e d participating in the killing o f Morrison an d Appelhans, ex culpated him. Rog er also referenced the lack of evidence establishing that he fired any of the g u ns. See id

. at 5 76. The A riz ona Supreme Cou r t disag reed, referencing e vidence at trial imp l i c ating both Robert and Rog er, including footprint evidence, the fact that both defendants were armed when captured, and the fact that the victims suffered numerous b u l l e t wounds from different
weapons. See id. Additionally
, the Court noted that Robert’s jailhouse letters did not “indicate the role Rog er did o r did not play .” I d

. T he Court determined that Rog er failed to prove by a p reponderance of the evidence that his role in the crimes was minor. See id.M U R R A Y V

. S C H R

I R O 25

c. Age - (

Twenty Y ears Old)

The A riz ona Supreme Court rejected Rog er’s reliance on his relative y outh as a mitig ating factor. The Court reasoned that Rog er’s intellig ence, previou s criminal history
, ex p erience with law enforcement, the ex ten t of his involvement w ith the crimes, and the d eliberate n ature of the murders militated a g ainst concluding that the commission o f th e c r imes was due to a lack of maturity

. See id. at 576–77. I n sum, Rog er failed to prove “how his ag e impaired his judg ment in committing the cri m e s .” Id. at 577 (citation omitted).

d. Duress

The A riz o na Supreme Court concluded that R og er was not under d

uress from Robert and h ad failed to show that his desire to please his brother rose to the level of d uress. S ee id.

e. No R e asonable Foreseeability that Conduc t W ould Create a Grave Risk of Death

According to the Ariz o na Supreme C ourt, Rog er’s asserted immaturity , dependent personality
, and idoliz ing o f his broth e r , e v e n if true, would not neg ate the foreseeability that u se of g uns to commit a robbery would cr e a t e a g rave risk of death. See id.

f. Dysfunctional Chi l d h o o d and Family Relations

Althoug h Rog e r established th a t his childhood was dy sfunctional, the Ariz o na Supreme Co u r t c o n c l u d e d t

hat “[ a] difficult family backg round a l o ne is not a mitig atingM U R R A Y V

. S C H R

I R O 26

circumstance.” I

d

. (citation omitted). The court held that “[ f] amily backg round is a mitig a ti ng circumstance only if a defendant can show that something in that backg round had an ef f e c t or impact on his behavior that was bey ond the defendant’s control.” Id

. (citation omitted). I n sum, the court concluded that the fact o f Rog e r’s d y sfunctional chi l d h o o d

was not a mitig a ting c ircu m s t a n c e because “he f ail[ ed] to show how [ his] backg ro u n d impacted his behavior at Grasshopper J unction.” Id

.

g

. Medical Problems

The Ariz ona Supreme Court f ound “nothing mitig a ting in connection with [Rog er’s] c laimed alleg ed medical problems as a child.” Id. at 578.

h. Remorse

The Ariz ona Supreme Court concluded that Rog er failed
to establish that he was remorseful, notin g s p ecifically Rog er’s letter to the trial judg e , wr itten just prior to the
ag g r avation/mitig ation hearing s, that d e n i e d r e s p o n s i b i l i t y f o r the crimes. S

ee id

.

i. Drug and Alcohol Use

The Ariz ona Supreme Court found that Rog er’s al cohol and drug use were n ot mitig ating because the substance abuse

was self-reported and larg ely uncorroborated, and because the phy sical activity at the crime was inconsistent with s e n s o ry impairment. See id.M U R R A Y V

. S C H R

I R O 27

j. Mental Health

The Ariz o na Supreme Court determined that Rog er’s mental health issues, including hy peractivity

and potentially other mental disorders, w e r e entitled to “some nonstatutory mitig ating weig ht.” I

d

. However, the court concluded that Rog er “fail[ ed] t o p rove that he suffer[ ed] from brain damag e.” Id

.

k. Education

The Ariz ona Supreme Court rejected R o g er’s arg ument that because he b ecame a paraleg al despite having dropped
out o f hig h school, he was able to “reside within our society and abide by the rules

. . .” I d

. The Court noted that Rog er’s accomplishments did n o t prevent c ommission of the heinous crimes ag ainst Morrison and Appelhans. See id.

l. Residual or Lingering Doubt

The Ariz ona Supreme Court concluded that there was no ling ering doubt reg arding Rog e r ’s actual participation in the crime. Id.

m. Felony Murder Instruction

The Ariz ona Supreme Court ex plained that a f e l ony murder instruction “can o n ly be mitig ating wher e there is

some doubt reg arding defendant’s specific intent to kill.

. . . ” Id

. (citation o mitted). B ec a u s e t here was a premeditation finding , Rog er’s specific intent was not in doubt. See id

.M U R R A Y V

. S C H R

I R O 28

n. Cooperation

Rog er complained that the trial court failed to take his cooperation into consideration. See i d

. R og e r relied on the fact that h e r efrained fr om shooting the police officer w ho apprehended him. See id. The Ariz ona Supreme Court h eld that refraining from k illing one more p erson cannot possibly demonstrate cooperation as a mitig ating factor. See id.

6. W eighing Aggravation and Mitigation

The Ariz ona Supreme Court described the “very detailed special verdicts” completed by the trial court and concluded that the r ecord reflected careful considerat i o n o f all the evidence and c areful weig hing o f the mitig ating a nd
ag g r avating factors. See id. at 579.

7. State’s Rebuttal Evidence

Rog er contended that the trial court improperly a l l o wed the admission o f evidence supporting the ag g ravating f actors after the defense had rested its mit i ga t i o n case. See id. However, the Ariz ona Supreme C o urt concluded that the state

was entitled to call witnesses to rebut the mitig ation evidence
pr e sented by Rog er. See id

. Reg ardless, the A riz o na Supreme Court determi n e d that the trial court had carefully reviewed the mitig ating e vi d e nce, and “[ t] here [ wa] s no sug g estion in the record that the [ trial] ju dg e considered the rebuttal evidence in connection with any thing b ut mitig ation. Id.M U R R A Y V

. S C H R

I R O 29

D. P ost-Conviction P roceedings

F ollowing his unsuccessful direct appeal, Rog e r filed a petition for post-conviction relief (PCR). Rog er asserted that he had a g enuine and irre c o n c i l a b le conflict w ith his trial counsel and the trial court’s refusal to appoint new trial counsel was an abuse of discretion that effectively d en i e d Rog er’s rig ht to counsel. Rog e r also advanced ine f f ective assistance of counsel (I A C) claims alleg ing : ( 1 ) trial counsel’s sleeping during substa ntial portions of the trial; (2) trial counsel’s failure t o present the testimony of J ack Potts, M.D. at the mitig ation hearing ; (3) tri a l counsel’s failure to obtain neurolog ical or neuropsy cholog i c al evaluations of Rog er prior t o s e n t encing ; (4) trial counsel’s failure to call an ex culpatory witness; (5) trial coun s e l ’s ig norance of r e h a b i litation as a mitig ating factor; (6) trial counsel’s failure to properly pursue a discovery

violation by the prosecution; (7) trial counsel’s failure to properly discredit the detective who provided footprint testimony ; a nd (8) trial counsel’s calling of witnesses who we re prejudicial
to the defense. Rog er’s remaining claims challeng ed the trial court’s construction of nonstatutory mitig ating evidence a nd the constitutionality

of Ariz ona’s death penalty sy stem.

F ollowing a hearing pursuant to Rul e 3 2 o f the A riz o na Rules of Criminal Procedu r e , t he PCR court set an evident i a r y hearing for the claims asserting ineffective assistance of counsel for sleeping and for f ai ling to obtain a neurolog ical or n europsy cholog ical ex amination. The balance of th e claims were deemed precluded or were summarily

rejected.

The PCR court appointed a p s y cholog ist a nd
neuropsy cholog ist to evaluate Rog er prior to the evidentiaryM U R R A Y V

. S C H R

I R O 30

h e aring

. F ollowing the evidentiary hearing
, the PCR cour t denied relief on the I A C claim ass e r t i n g that counsel slept throug hout major portions of the trial. 7

The Ariz ona Supreme Court s u m m arily denied Rog er’s

s ubsequent petition f

or r eview, ex cept as to Rog e r’s c l a i m that he was entitled to a jury determination of the ag g ravating factor s

. R eview of that claim was consolidated with the claims of other similarly situated inmates, and r e l i e f was denied. See S

tate v

. Towery
, 64 P.3d 8 28 (Ariz

. 2 0 0 3 ) ( en banc). Rog er filed a petit i on for writ of certiorari to the United States Supreme Court, w hich he later withdrew. Rog er then filed a habeas petition in the federal district court.

E. F ederal Habeas P e tition

The fifty -six claims in Rog er’s f ederal habeas petition larg e ly mirrored those raised in Rog er’s direct appe a l

. S ee Murray , 906 P.2d at 553–78.

Rog er voluntarily w ithdrew the following nine claims a s duplicative:

• Claim 43 (trial c o urt’s f ailure to file a written special verdict);

• Claim 47 (I AC - failure to obtain neurolog ical a nd
neuropsy cholog ical evaluation);

7 A f t e r b ein g ex am in ed by th e co u rt ap p o in ted p sy ch o lo g ists, Ro g er

n o tif ied th e P CR co u rt th at h e d id n ot i n ten d to rely o n th o s e ex p erts. Su b seq u en tly
, t

h e State f i led a m o tio n to d ism iss Ro g er’ s IA C cl a i m fo r trial co u n sel’ s fa i l u r e to ob tain a n eu ro lo g i cal o r n eu ro p sy ch o lo g i cal

ex am in atio n , w

h ich th e P C R co u rt g ran ted

.M U R R A Y V

. S C H R

I R O 31

• Claim 49 (I AC - failure to follow-up on objection t o disclosure violations);

• Claim 50 (I A C - f

ailure to d iscredit footprint ex pert);

• Claim 51 (I A C

- called witnesses prejudicial to defense);

• Claim 52 (denial of sentencing jury );

• Claim 54 (arbitrary imposition of the death penalty );

• Claim 55 (cruel and unusual punishment); and

• Claim 56 (nondeterrence of ex ecution).

The district court dismissed the fo l l o w i ng claims a s procedurally

barred:

• Claim 8 (footprint evidence);

• Claim 9 (impeachment of footprint ex pert);

• Claim 20 (viability

of ag g r avating factors);

• Claim 21 (application of ag g ravating factors);

• Claim 23 (lack of fundingfor additional ex perts);

• Claim 24 (unconstitutionality of death penalty

);

• Claim 25 (unconstitutionality of death penalty

);M U R R A Y V

. S C H R

I R O 32

• Claim 26 (unfair balancing o f ag g ravating a nd mitig ating factors);

• Claim 27 ( v a g ueness o f heinous, cruel or depraved
ag g r avating factor);

• Claim 28 (lack of meaning ful review of sentence);

• Claim 29 (limitation on n o n statutory mitig ation evidence);

• Claim 30 (I AC -failure to impeach footprint ex pert);

• Claim 31 (I AC - failure to move for severance);

• Claim 32 (I AC - failure to secure ex perts);

• Claim 33 (I A C

- failure to prepare for Ag g r avation/Mitig ation Hearing );

• Claim 35 ( violat i o n o f r ig hts under I nternational L aw);

• Claim 36 (phy s i cal and psy cholog ical torture during

ex e cution);

• Claim 39 (improper co nsideration of evidence
reg arding ag g ravating factors);

• Claim 44 (irreconcilable conflict with attorney );

• Claim 46 (I AC - failure to call mental health ex pert); andM U R R A Y V

. S C H R

I R O 33

• Claim 53 (failure to channel sentencing discretion).

District Court Discussion of Claims on the Merits

Claim 1 - Change of Venue

The district cour t d etermined that the A riz ona Supreme Court’s decision d e n y ing re l i ef was not c ontrary to or an

unreasona

b l e application of Supreme Court precedent, nor

was it bas e d o n a n unreasonable determination of the facts. The district co urt referenced the two ty pes of prejudice resulting from pretrial publicity -presumed p rejudice a nd

a c t u al prejudice. B e cause Rog er d id not arg ue actual prejudice, t h e district court f ocused on presumed prejudice, albeit n o ting that the A r i z ona Supreme Court’s decision rejecting a ctual prejudice was not contrary to or an unreasonable application of Supreme Court precedent. The district c ourt acknowledg ed that presumed prejudice is established when pretrial publicity u tterly corrupts the trial atmosphere or incites a public passion that makes a fair trial unlikely

.

W h ile the district court recog niz ed that this case g a rnered sig nificant media at t ention, it determined that the nature o f the press coverag e was not u nduly pervasive or inflammatory

. Rather, the media reports were factual r ecitations of the crime and the ensuing criminal proceeding s. The dis t r ict court therefore concluded that the Ariz ona Supreme Court did not unreasonably apply c learly established fe deral law in rejecting Rog er’s c laim of presumed p rejudice, and that the
state court’s decision was not based on an unre asonable determination of the facts.M U R R A Y V

. S C H R

I R O 34

Claim 2 - Jury Sequestration

The district c o urt noted t h a t b e cause there is no constitutional rig ht to jury sequestration, to obtain h abeas relief, Rog er was required to show that h e was prejudiced b y the failure to sequester the jury

.

The occurrences referenced by Rog er to support his claim of prejudice included the security measures in effect during trial, neg ative comments made by police officers outside the courtroom, a conversation involving the prosecutor that may have been overheard by two jurors, and the attendance at trial of a juror’s spouse. The district court relied on the evidence presented to the state trial court that no jur o r s were ex p osed
to the officers’ comments, that the jurors were admonished to disreg ard any c omments by the p rosecutor d u ring the break, and that the juror and his spouse did not discus s t h e c a se. B ecause the state court’s determination that Rog er fa iled to establish prejudice withstood AEDPA rev i e w, the district court denied habeas relief on this claim.

Claim 3 - Severance

The state court’s conclusion that Rog er failed to establish prejudice from the joint trial, the district court h e ld, was not based o n an unreasona

b l e application of clearly e stablished federal law or an unreasonable determination o f the facts. There was n o in d i ca t i on that the defenses were a ntag onistic

or mutually ex clusive. Neither brother testified a nd no inculpatory statements were introduced. Th e nature a nd effect of the overwhelming evidence, which was adm i s s i ble
ag ainst b oth brothers, wou l d n o t have chang ed if the trial

were severed. The distri ct c o u r t thus concluded that this claim was without merit, and denied relief.M U R R A Y V

. S C H R

I R O 35

Claim 4 - Jury Selection Process

The district court rejected this claim because Rog e r failed
to demonstrate that y oung pe o p l e or p ersons living in rural

a r eas are distinctive g roups as is required to establ i s h underrepresentation o r ex clusion of a cog niz able g roup from the jury selection process. The Ariz ona Supreme Co u r t h ad rejected this claim on t h e basis of D uren v. Missouri
, 439 U.S. 357 (1979). B ecause Rog er could not s h o w t hat either D uren or any other clearly established Supreme Court authori t y r ecog niz ed y oung people or people living in rural

areas a s distinctive g roups for f a ir-cross section purposes, the d i s t r i ct court concluded that the state court had not unreasonably applied clearly established federal law. 8

Claim 5 - Fair Cross-Section/Equal Protection

The district court determined that, a s w i th Claim 4, the Ariz ona Supreme Court did not unreasonably apply United States Supreme Court precedent b y concluding th a t R o g er failed to establish that a d istincti v e g roup was improperly

ex c luded from the jury

pool.

Claim 6 - B atson

The state c o u rt’s determination that the prosecutor’s

r e asons for striking each of the challeng ed jurors were rac e

neutral, the d istrict court concluded, was valid und e r AEDPA.

8 In Du ren , th e Un ited States Su p rem e Co u rt h eld th at a d ef en dan t i n a crim in al case h as a Six th A m en dm en t rig h t to a j u ry p o ol th at co n stitu tes

a f air cro ss- sectio n o f th e co m m u n ity

. S ee Du r en , 4 3 9 U.S. at 3 5 9

– 6 0

. T h is co n stitu

tio n al rig h t i s v io lated o n ly if a d i stin ctiv e g ro u p i s ex clu ded f ro m j u ry serv ice. S

ee id

. at 3 6 4

.M U R R A Y V

. S C H R

I R O 36

One juror w as ex cused due to the state’s c ri m i n al investig ation of her relatives and the other juror was e x cused because the prosecutor knew the juror socia l l y and was

c oncerned that he mig ht b e too willing to ag ree to a v o i d discord. The district c ourt determined that the A riz o na Supreme Court neither unreasonably applied Batson nor based its decision on an unreasonable determination of the facts in the record.

Claim 7 - Revisiting the Crime Scene

The d istrict court determined that Rog er did not establish
p r e j u d i ce due to the trial court’s denial of h is request to revisit the c r i m e s c ene more than a y ear after the crime was committed a

nd after the crime scene had been cleaned. The district court concluded that Rog e r failed to show t hat the evidence soug ht was material or that the verdict would have been different, particularly in view o f the overwhelming evidence of g u ilt. The district court denied r e l i e f o n this

c l a i m, affirming the state court’s determination under AEDPA.

Claim 10 - Hybrid Representation

Th e district court concluded that the Ariz ona Supreme Court’s deci sion deny ing Rog er’s hy brid representation claim

was not contrary to or an unreasonable application o f Supreme Court precedent. Rog er did not assert that the state court’s ruling violated h is constitutional rig hts in any particular fashion. Addit i o nally
, the district court observed tha t Rog er failed to cite any clearly e stablished law supporting his claim of entitlement to hy brid representation. The district court denied relief on this claim.M U R R A Y V

. S C H R

I R O 37

Claim 11 - Gruesome Photographs

The district court found that Rog er was not prejudiced b y t h e photog raphs of the victims and of the crime scene t h at

were admitted into evidence. The court reasoned that e ven if
t h e pictures were improperly admitted, the error was not prejudicial and did not rise to the level of a due p r ocess violat i o n b ecause the evidence ag ainst Rog er was overwhelming

. The district court denied relief, concluding that the state court’s determination was neither contrar y to,

nor an u nreasonable application o f, clearly established federal law.

Claim 12 - Prosecutorial Misconduct

The d istrict court d etermin ed that a detective’s joking about the F B I while testify ing
, when viewed in the contex t o f the entire p roceeding s, “was innocuou s a n d could have h ad

no effect o n the fairness of the trial,” p articularly since the jury was instructed to disreg ard the offending comments. The district court a lso determined that the p rosecutor’s statement during closing arg ument ty ing th e .25 caliber shell found at the crime scene to Rog er was a permissible inference that the prosecutor was allowed to draw b ased on the ev i d ence. Reg arding the prosecutor ’ s r e ference to the brothers as the “boy s from Alabama” during closing arg ument, t h e d istrict
court d etermined that the “prosecutor’s use of this rhetorical device did not carry the c onnotations [ Rog er] ascribe[ d] to it and did not deprive him of a fair trial.”

F inally
, the distri c t c ourt determined that the c omments made by the prosecution “t hat the defendants ex perienced a ‘sick ex citement’ and ‘some sick craz y hig h’” as they committed the crimes did not result in a due processM U R R A Y V

. S C H R

I R O 38

v i o lation. T he trial court neutraliz ed any inappropriaten e s s b y instructing the jury not to be influenced by passion o r prejudice, and that statements of c o unsel are not evidence. The district court denied relief because it determined that the A r i z ona Supreme Court did not unreasonably apply c lea r l y established f

ederal law h olding that inappropriate remarks must infect the trial with unfairness to warrant reversal.

Claim 13 - Reference to In-Custody Status

Ro ge r objected and moved for a mistrial after r e ference

was mad e t o b lood being drawn f rom Rog er b y a “nurse in j a il.” A nother reference was made to the fact that Rog er’s clothing was taken while he was in custody

. The trial court sustained the objection to t h e testimony reg arding blood being drawn and struck the ans w e r. Rog er’s motion f o r a mistrial was denied.

The d istrict court ag reed w ith the sta t e c o u r t that these isolated r eferences to Rog e r’s in-custody status did not warrant a mistrial. The district court c o n c l u ded that relief

was not warranted under Estelle v. W illia m s , 4 24 U.S. 501 ( 1 976), and Rog er cited no Supreme Court case suppo r t i n g t h e proposition that the mere mention of the fact that a defendant is in cu stody c onstitutes a due process violation. According ly
, the dist r i c t court denied relief on this claim under AEDPA.

Claim 14 - Sufficiency of Evidence

Rog er challeng ed the sufficiency of evidence supporting his armed ro b bery and felony murder convictions. The d i s t rict court found that the state court did not unreasonabl y apply clearly established federal law, J ackson v. Virgin i a ,M U R R A Y V

. S C H R

I R O 39

443 U.S. 307 (1979), in concluding that a rational factfinder could d etermine from the evidence th at Rog er committed armed robbery and that the deaths of the victims occurred du ri n g the c ourse o f or in f urtherance of the armed r obbery

. Nor was the state court’s conclusion an unreasonable determination of the facts, g iven the use of several weapons, evidence of a st r u g g l e , and the fact that property was taken. The district court, therefore, denied relief on this claim.

Cl a i m 1 5 - Jury Instruction A d dressing the State’s Failure to Preserve Evidence

Rog er alleg ed that the trial cou rt violated his r ig hts b y failing to g ive a jury i nstruction reg a rding the state’s failure
t o preserve e vidence. The district c ourt opined that R o ge r had failed to establish that the officers who condu c t e d the investig ation a cted in bad faith with respect to gathering
, preserving
, and analy

z ing the evidence. The witnesses for the
state all g ave c redible ex planations for the me t h o ds used to g ather and preserve evidence, showing at most neg lig ence on the part of investig ators. More importantly
, Rog er failed to establish that the ex culpatory nature of any unp r es er v ed evidence was apparent b efore it was d estroy ed, or that the evidence was material. B ecause the state court did not

un re a sonably apply clearly established f ederal law in rejecting this claim, s ee California v. Trombetta
, 467 U.S. 479, 488 (1984), the distri c t c ourt denied r elief under AEDPA.

Claim 16 - Intoxication Instruction

T h e district court determined that Rog er was not den i e d

a fair trial w hen the trial court declined to g ive an intox ication instruction to the jury

. The trial c ourt f ound, and the A riz o naM U R R A Y V

. S C H R

I R O 40

Supreme Court a ffirmed, that Rog e r was dr i n k i ng at a bar prior to the m u r ders, but that there was no evidence that he

was in f a c t intox icated. Reviewing the state court decision under A EDPA, the district court presumed that finding to be

cor r ect and concluded that Rog er had not overcome that presumption of correctne s s with c lear and convincing evidence. The district court thus denied this claim.

Claim 17 - Lesser Included Offense Instruction

The district court found that the state court properly applied Supreme Court precedent, H opper v. Evans
, 4 56 U.S. 605, 611 ( 1982), in concluding that there was insufficient evidence in the record to pe r s u ade a rational factfinder that Rog er committed sec o n d d eg ree murder rather than first deg ree murder, thereby neces sitating a lesser included offense jury instruction. The district cour t also noted that the evidence of premeditation was overwhelming

.

Cl aim 18 - Unconstitutionality of Arizona’s Felony Murder Statute

The district court de t ermined that there is no clearly established federal la w h olding that a felony murder statute

m u s t i nclude lesser offenses. Citing Hopkins v. Reeves
, 524 U.S. 8 8, 96–97 (1998), the d istrict c ourt determined that S u p r eme Court precedent w as to the contrary

. 9 The distri ct court denied this claim.

9 In Ho p k i n s , t h e Un ited S tates Su p rem e Co u rt h eld th at th ere is n o req u irem en t to g i v e an in s tru ctio n fo r seco n d d eg ree m u rd er w h en th e d ef en d an t is ch arg ed w ith cap ital f elo n y m u rd er, u n less seco n d d e g r e e

m u rd er is a lesser in clu ded o f f en se o f f elo n y m u rd er u n d er state law

. 5 2 4 U.S. at 9 4

– 97

.M U R R A Y V

. S C H R

I R O 41

Claim 19 - Unconstitutionality of S entence Imposition by Judge Under State Law

The district court denied this claim as foreclosed b y Schriro v. Summerlin
, 542 U.S. 348, 358 (2004), which h eld that the Supreme Court’s decision in Ring v

. Ar i zona , 536 U.S. 584 (2002), requi r ing jury sentencing in capital cases, was not retroactive.

Claim 22 - Double Jeopardy

Rog er took the pos i tion that apply ing the ag g ravator for multiple v ic t ims subjected him to double jeopardy

. The district court ex plained that Rog er was not b ei n g punished twice for the same crime. Rather, there w ere two crimes, two convictions, and two sentences. Citing Po l a n d v. Arizona
, 476 U.S. 147, 156 (1986), and Lowenfield v. Phelps
, 4 8 4 U.S. 231, 244–46 (1988), the district court clarified that statutory
ag g r avating f

actors are not o ffenses fo r double jeopardy
purposes, but are u sed to g u ide the ju ry i n determining an appropriate sentence in capital cases

. The district court concluded that the Ariz ona Supreme Court’s decision on this issue was not contrary to or a n unreasonable application o f clearly established federal law on double jeopardy

.

Claim 34 – Lack of Legiti m a te Penological Purpose Served by Delayed Execution

The district court denied this claim as a matter of law because the United States Supreme Court has not determined that a leng thy incarceration p rior to e x ecution constitutes cruel o r unusual p unishment. The d istrict court also observed
t hat several c ircuit courts, including the Ninth Circuit, hav e held that prolong ed incarceration prior to ex ecution does notM U R R A Y V

. S C H R

I R O 42

violate the Eig hth Amendment. See, e.g. , McKenzie v. Day
, 57 F .3d 1493, 1493–94 (9th Cir. 1995) (en banc).

Claim 37 – Incompetence at Time of Execution

Rog er asserted that he would be incompeten t at the anticipated time of ex ecution. The district co u r t d ismissed this claim w ithout prejudice a s p remature, with consent of the parties.

Claim 38 - Access to the Law Library

The district court found that the Ariz ona Supreme Court did not unreasonably a

p p ly clearly establish e d f ederal law when it decided that Rog er was p rovided adequate assistance from persons trained in the law, satisfy ing his constitutional rig ht of access to the courts. The district court ruled that the
state court’s ruling was consistent with Bounds
, 430 U.S. at 828, which h e ld that constitutional access t o t h e courts is satisfied b y access to a law library or adequate assistance from a person trained in the law.

Cla i m s 40/41 - Statutory and NonStatutory Mitigation Evidence Outweighing Aggravating Factors

The d istrict court dismissed the portion of these c laims asserting violations o f the F ifth, Six th, and Seventh Amendments as procedurally b arred. The district court also denied relief o n the portion of Rog er’s claim asserting under the Eig hth and F ourteenth Amendments, that the sentencing
court failed to properly weig h ag g ravating and mit i gating factors. The district c o u rt determined that this was an

a s serted error of state law, and thus no federal habeas relie fM U R R A Y V

. S C H R

I R O 43

w a s available. See Estelle v. McGuire
, 502 U.S. 62, 67–6 8 (1991).

Cl a i m 42 - U

nconstitutional B readth of Prosecution’s Discretion to Seek the Death Penalty

The district court denied this claim because no clearly established Supreme Court p r ecedent requires that a state provide specific standards instructin g a s entencing court o r jury reg arding how to weig h a g g ravatin g a nd mitig ating evidence. See Ortiz v. Stewart
, 149 F .3d 923, 9 44 (9th Cir. 1998) ( citing Zant v. Stephens
, 462 U .S. 862, 880 (1983) for the proposition t h a t the United States Constitution requires only that a state provide pr o c edures to g uide the sentencer’s discretion g enerally

). I n addition, the district court noted that

we rejected this v ery arg ument in S mith v. Stewart
, 140 F .3d 1263, 1272 (9th Cir. 1998).

Claim 45

- Ineffective Assistance of Co u n s e l - ( sleeping through significant portions of the trial)

Th e d i s trict court determined, in lig ht of the evidence presented in the state cour t proceeding s, that the state court did not rely on an u nreasonable determinati o n o f f acts in rejecting Rog er’s alleg a tion that his c ounsel slept throug hout

a sig n ificant portion of the trial and thus was constitutionally ineffective. Only Rog e r testified that h e a ctually o b served his la w y e r sleeping
, and multiple other witnesses testified that they did n o t see the lawy er asleep and that he w as active a nd

z ealously involved in Rog er’s d efense. Additiona l ly
, the district court noted testimony from Rog er’s lawy er and from

c o-counsel that Rog e r d id not complain about his law y e r falling asleep in court.M U R R A Y V

. S C H R

I R O 44

The district court also rejected Rog er’s arg ument that he did not r eceive a f

air hearing because the trial court judg e was

a key witness and also the presiding judg e f o r t h e PCR proceeding s. The district court relied on Gerlaugh v. Stewart
, 129 F .3d 1027, 1036 (9th C i r

. 1997), where we held that a trial c ourt judg e may also presi d e over post-conviction proceeding s. The district court denied this claim.

Claim 48 - Ineffective Assistance of Counsel - ( failure to present exculpatory witness)

The PCR court concluded that Robert’s counsel was not ineffective when attempting to locate the alleg ed ex culpatory witness. Th e d istrict c ourt determined that even if Rog er’s counsel was ineffectiv e i n failing to present that same witness, the outcome of the trial would have been t h e s ame. The proposed ex culpatory testimony that the victim was seen with three other men on the nig ht of t h e m u rder would not have overcome the insurmountable inculpatory e v i d e nce. B ecause Rog e r could not establish prejudice in any event, the
state court’s determination was n ot contrary to clearly established fe deral law, see Strickland v. W a shington
, 466 U.S. 668, 687–88 (1984).

The district court declined to issue a Certificate o f Appealability (COA) after deny in g R og er’s petition. Rog er subsequently filed a timely appeal, and w e issued a COA for the following claims:

• Claim 1 - denial of requested chang e of venue;

• C l a i m 5 - denial of fair cross-section in the ju r y venire;M U R R A Y V

. S C H R

I R O 45

• Claim 6 - B atson violation;

• C l a im 7 - d enial of request to inspect the cr i m e scene;

• C laim 16 - omission of voluntary intox icati o n instruction;

• Claim 17

- d enial of a lesser included offense instruction;

• Claim 26 - failure to consider mitig ating evidence;

• Claim 44 - denial of request to replace c ounsel due to irreconcilable conflict;

• Claim 45 - ineffective assistance of co unsel (I A C) due to counsel’s inattentiveness; and

• Claim 48 - I AC due to counsel’s fai l u re to present

ex c ulpatory

witness.

II. STANDARDS OF REVIEW

W e r eview de novo a district court’s denial of a h abeas petition. S

ee Fairbank v

. Ayers
, 650 F .3d 1243, 1250 (9th Cir. 2011), as amended

.

B e cause Rog er filed his p etition for a wr i t o f h abeas
corpus after April 24, 1996, the Antiterrorism and Effective Death Penalty Act ( AEDPA) applies. See Valerio v

. Crawford
, 306 F .3d 742, 763 (9 t h C ir. 2002) (en banc). Under A EPDA, we are barred from g ranting relief unless the
state court decision: “(1) was c o ntrary to clearly e stablishedM U R R A Y V

. S C H R

I R O 46

federal law as determined by the Supreme Court, (2) involved

an unreasonable application of such law, or (3)

. . . was based

on an unreasonable determination of the fact s i n lig ht of the record before the state cour t

. ” Fairbank
, 650 F .3d at 1251 (citation and internal quotation marks omitted).

A state court’s decision is contrary to clearly established federal law if its decision contradicts the g overning law articulated b y the Supreme Court or reaches a result different than that reache d by the Supreme Court on materially in d isting uishable facts. See Terry W illiams v. Taylor
, 529 U.S. 362, 405–06 (2000). A state court’s decision is an

u n r e a sonable application of clearly established federal law

w h e n the state court identifies the c orrect leg al rule, b u t applies it to a new s e t o f f acts in a w ay that is objectively unreasonable. See id . at 407.

“Clearly established federal law means the g overning leg al principle or principles set forth by the Supreme Court at the time the state court r enders its decision.” Xiong v

. Felker
, 681 F .3d 1067, 1073 (9th Cir. 2012) (citation omitte d). Althoug h “circ u i t c ourt precedent may be persuasive in determining what law is clearly establishe d a nd whether a state court applied that law unreasonably [
, ] ” Stanley v

. Cullen
, 633 F .3d 852, 8 59 (9th Cir. 2011) (citation omitted),

our determination of clearly -established law under AEDPA
must ultimately r est on a Supreme Court holding
, not o n dicta th a t we have interpreted in circuit decisions. See Carey v

. Musladin
, 549 U.S. 70, 74, 77 (2006); see also W right v. Van Patten
, 552 U.S. 120, 125–26 ( 2008) (reite rating that a Sup r e m e Court case must have “squarely address[ ed] ” a certain issue and g iven a “cle a r a n s wer” reg arding the applicable leg al r

ule to create “clearly established federal law for AEDPA purposes”).M U R R A Y V

. S C H R

I R O 47

Under AEDPA, w e review the “ last reasoned de c i sion” from the state court, which means t h a t w h en the f inal state court decision contains no r easoning
, we may look to the last d e c ision from the state court that provides a reas o n e d

ex p lanation o f the issue. See Shackleford v. Hubbard
, 234 F .3d 1072, 1079 n.2 (9th Cir. 2000). I n circums t ances where no decision f

rom the state court a

rticulates its underly ing reaso n i n g, “the habeas petitioner’s burden still
must be met b y showing there was no reasonable basis f or the
state court to deny relief.

. . .” Harrington v. Richter
, 131 S. Ct. 7 70, 7 84 (2011); see also Johnson v. W illiams
, 133 S. Ct. 1088, 1096 (2013). I n determining whether a petition has met this burden, w e “must determine what arg uments or theories supported or

. . . could hav e s u p p o rt e d [ ] the state court’s decision;” and then assess “whether it is possible fairminded jurists could disag r ee that those arg uments or theo r ies a re inconsistent with the holding in a p r i o r decision of [ the Supreme Court]

. . . . ” Richter
, 131 S. Ct. at 786 ( c i t a t ion omitted). According ly
, “when the state court does n ot supply reasoning for its decision, we are instructed t o e ng ag e in an independent review o f the record and ascertain whether the
state court’s decision was objectively unreasonable.” W alker

v. Martel
, 709 F .3d 925, 9 39 (9th C i r

. 2013) (citation a nd internal q uotation marks omitted).” “Crucially
, this is not a de novo review o f t h e constitutional question. Rather, even

a st rong case for relief does not mean the state court’s contrary c onclusion was unreaso n ab l e

. ” Id

. (citations a nd internal quotation marks omitted).

F inally
, so long as w e are reviewing a petitioner ’ s c l aim under AEDPA, our review is l i m i t ed to the facts before the state court and the petitioner is not entitled to an evidentiary hearing in federal court. See Cullen v. Pinholster
, 1 31 S. Ct. 1388, 1398 (2011).M U R R A Y V

. S C H R

I R O 48

III. DISCUSSION—Issues Raised in F ederal Appeal

A. Claim One - Denial of Requested Change o f Venue

R og er a rg ues that the denial of his chang e of v e n u e motion violated his due process rig h t to a fair trial. He contends that there was a barrag e of pretrial publicity that was false and p rejudicial. He also asserts th a t there is a heig htened oblig ation to chang e venue in capital cases.

The Six th A mendment g uarantees a de f e n d a nt’s rig h t to trial before an impartial j u r y

. See S killing v. United States
, 130 S. Ct. 2896, 2912 –13 (2010). W hen an impartial jury
cannot be empaneled d

ue to p retrial publicit y , a chang e o f

venue at the request of the defendant is appropriate to prevent violation of the defendant’s due p r ocess righ t t o a fair trial. See id . at 2913.

To support a chang e of venue request, the d e fendant must establish either presumed or actual prejudice. See id

. at 2907. The Supreme Court has ex plained that a court may presume prejudice only w h en the “trial atmosphere [ is] utterly corrupted by press coverag e,” Dobbe r t v. Florida
, 432 U.S. 282, 303 (1977) (citing Murphy v

. F lorida
, 4 21 U.S. 794, 798 (1975)), or w hen “a wave of public passion

. . . ma[ kes] a fair trial unlikely by the jury

. . .” Patton v. Y ount , 467 U.S. 1025, 1040 ( 1984) (internal quotation marks omitted). J u r o r

ex p osure to news reports of a crime–even “pervasive, adverse publicity ”–is not enoug h alone to trig g er a presumption o f prejudice to the defendant’s due process rig h ts. Skilling
, 130 S. Ct. at 2916 (describing the “ v ivid, unforg ettable” a nd “blatantly prejudicial” information at issue in the handful o f

cases in which the Supreme Court has presumed prejudice a s

a result of pretrial publicity ) ( c iting Rideau v. Louisiana
,M U R R A Y V

. S C H R

I R O 49

323 U.S. 723 (1963); E

s t e s v. Texas
, 381 U.S. 532 ( 1 965); Sheppar d v. M

a xwell
, 3 84 U.S. 333 (1966)). Rather, a presumption o f prejudice “attends only the ex treme case.” Id. at 2915.

I n the alternative, a defendant may establish the ex istence of actual p rejudice if, d

uring voir dire, poten t i a l jurors w ho have been ex posed to pretrial publicity ex p ress b ias o r hostility toward the defendan t t h a t c annot be cast aside. Id

. at 2918 & n.20 (citing Mu’Min v. Virginia
, 500 U.S. 415, 427 (1991)). The reviewing court must g ive deference to the trial

cour t ’ s a ssessment of the impartiality of potential jurors, since that assess m e n t “ i s ordinarily influenced by a host o f facts impossible to fully c a pture in the record

. . .” Skilling
, 130 S. Ct. a t 2918; see a lso Mu’Min
, 500 U.S. at 427. (“The judg e of that court sits in the locale where the publicity is said
to have had its effect and bring s to his evaluation of a ny such claim his own perception of the d ept h a nd ex tent of news stories that mig ht influence a juror. . . .”).

The last reasoned s t a t e court decision a ddressing the pretrial publicity issue was the Supreme C o u r t of A riz o na opinion. See Murray
, 906 P.2d at 5 59. Th e s t a te supreme court h eld that Rog er failed to d emonstrate media a ttention so

ex treme that prejudice could b e presumed. S e e id. Rog er introduced several n ew spaper articles and presented two witnesses, a news director and the defense investig a tor, to establish p resumed prejudice. The newspaper articles were primarily factual descriptions of the crime a nd t h e c ourt proceeding s. Rog er hig hlig hts two newspaper articles and a photograph to support his arg u ment. The articles’ captions

were “Two A labama B rothers A re Arraig ne d for B rutal Slay ing s” and “Murra y B rothers Are Suspects in Crime Spree.” The referenced photog raph depicted Robert a ndM U R R A Y V

. S C H R

I R O 50

Rog er standing near a transport v an. The t e x t b elow the photog raph stated that at least eig ht law e nforcement officers escorted the brot h e r s, and that two armed officers were stationed on nearby

rooftops.

The witnesses testified that people in the area were a ware throug h news repo r ts of the brothers and of the crimes committe d
, a

nd that some members o f the community h ad

ex p ressed the view that the brothers were g uilty

. After considering the evidence presented, the state court concluded that Rog er failed to specif y “ w h at p retrial publicity was so outrag eous,” as to c reate an a t m o s p h e re that was “utterly corrupted.” M

u rray , 906 P.2d at 559 (citation omitted) (emphasis in the orig inal). Nor was the court c onvinced that the security measures imple m e nted for trial “creat[ ed] a contaminated atmosphere,” w arranting a presumption o f prejudice. Id. F inally
, the cou r t found that no actual prejudice was shown. A lthoug h some of t h e p r o spective jurors w ere aware of the crime g e n erally
, potential juror bias

was probed ex tensively in the jury ques t i o n n a ire and during voir dire. S

ee id. Any prospective juror wh o failed to convince the court that he could be objec t i v e despite the pretrial publicity was not allowed to remain on the jury panel. See id. Once seated, jurors were r e p e a tedly admonished to avoid media coverag e of the trial proceeding s. S ee id. After reviewing this record, the Ariz ona Supreme Co u r t affirmed the trial court’s denial of the r equested venue c hang e

. S ee id.

Rog er relies on C oleman v. Kemp
, 778 F .2d 1487 (11th Cir. 1 985) and Daniels v. W o odford
, 428 F

. 3 d 1181 (9th Cir. 2005) to support his arg ument that the state court’s decision

w a s unreasonable. As the Supreme Court has made cle a r, however, simply because a state court decision is inconsistent with circuit precedent does not mean that it is anM U R R A Y V

. S C H R

I R O 51

unreasonable application of clearly e s t a b lished federal law “as determined by the Supreme Court.” Richter
, 1 31 S. Ct. at 784 (quoting 28 U .S.C. § 2254); see also Ma r s h a l l v

. Rodgers
, 133 S. Ct. 1446, 1450–51 (2013). Thus, our circuit precedent is only relevant to the ex tent that, “in accordance with [our] usual law-of-the circuit procedures,

. . . [we] ha[ ve] already held that the particular point in issue is c l e a r ly established by Supreme Court precedent

. . .” Marshall
, 133 S. Ct. at 1450 (citations o m i tted). “ [ W e] may not

canvass ci rcuit d ecisions to determine whether a particular rule of law is so widely accepted among the F ederal Circuits that it w o uld, if presented to th[ e] [ Supreme] Court be accepted as correct.

. . .” Id

. a t 1 4 51 (citations omitted). T herefore, Rog er’s arg ument that his case is similar to t h e presumed prejudice determinations in Coleman and D aniels
, see Coleman
, 778 F .2d at 1 5 3 7–38, Daniels
, 428 F .3d at 1211, is inapposite to our analy sis on habeas review.

Our precedent does, however, r e q uire that we “conduct an independent review of news reports a bout the case.” D aniels
, 428 F

. 3d at 1210 (citation omitted). An independent r eview of the record r eveals that Rog er presented a number o f
newspaper a

rticles to the state court. The bulk of the pretrial articles were published months prior to tri a l. And it is important to note that not all of these arti cles are from Mohave County
, or are even about Roger. Some of the articles, particul arly the e d itorials, w ere about the death penalty in g eneral. I t appears that this is because, a round the time of Rog er’s trial, Ariz ona was preparing to e x ecute a man for the fi r st time since 1963. This situation c reated interest, leading people to question whether the death penalty should b e supported by society in g e neral. I n fact, some o f t h e

e d i t o rials a ctually questioned whether the death penalty is appropriate. O ne editorial stated that killers should be put sixM U R R A Y V

. S C H R

I R O 52

feet under, but the statement was a g eneral o ne, not directed toward Rog er, neither assuming his g uilt, nor calli n g f or his punishment. Only two editorials a c tually referenced Rog er. One r eferred to “the Murray b r others” being represented b y F rank Dickey

. The edito ri al c ontinued by criticiz ing Mr. Dickey ’s personal views concerning the death penalty

. T he other was a letter to the editor praising the judicial sy stem for deny ing the defense motion to suppress evidence obtained after a license plate check by an Ariz ona DPS officer resulted in the Murray s’ apprehension. The letter was an y t h i n g but inflammatory

toward Rog e r, ag ain not even referring to him by name, but as one of the Murray brothers.

The vast majority of the articles submitted by Rog er reported only facts, relay i n g i nformation reg arding what happened a t trial on particular day s. One article, that ran long before trial, mentioned that the victims were shot “ex e cution sty le” and that an e lderly woman had als o been attacked b y the brothers in Alabama. The problem w i t h r e l y ing on this article is that it r an in an Alabama newsp a p e r , thousands o f miles from the trial venue. An article d escribing the brothers

as suspects in a crime spree did run in the King man, Ariz ona, newspaper over a y ear befo r e the trial. The a rticle detailed alleg ations of a robbery and assault ag a inst an elderly w oman i n A labama. F inally
, as mentioned by Rog er, a newspaper

ran an a rticle about the venue hearing
, including a picture of the bro t h e r s being escorted to the jail and a description o f armed officers “perched on rooftops” overlooking them.

Rog er also proff

e r e d evidence of radio publicity

. David Hawkins, the news and sports director for various local radio stations, testified that the radio stations’ transmission a r eas

c o v e r e d the bulk of the residents in Mohave County

. M r

. Hawkins broug ht to court copies o f the vast majority o fM U R R A Y V

. S C H R

I R O 53

the stories that had been broadcast on the radio. He testified that the com m u n i ty was “upset with what happened to the victims in this case, and they a re curious about the outcome of this particular–not this particular proceeding
, but the whole of this c ase.” Mr. Hawkins further testified that he had heard

s o m e ex pressed opinions that the defendants were g uilty
, althoug h he had only spoken to a “couple doz en” members o f the community

–mo s t ly people in leg al circles, reporters a nd social acquaintances.

Of the fifty -se v e n stories Mr. Hawkins b roug ht to court,

some mentioned that the brothers were connected to a robbery /assault in Al a b a ma, that they mig h t be linked to murders in California and New Mex ico, and that the murders

were committed “ex ecution s t y l e.” O verall, however, the radio news reports were brief and factual in nature.

F inally
, J ohn F reeman, a defense investig ator, testified that he had spoken to a number o f people about the case w ho thoug ht the brothers were g uilty and shoul d “g et a quick trial.”

W e c onc l u d e that the A riz ona Supreme Court’s determination that prejudice could not b e presumed was not contrary to or an unreasonable application of Supreme Court precedent, and while it does not impact our AEDPA inquiry
, we note that the ruling was c o nsistent with Coleman a nd Daniels as well.

The publicity surrounding Rog e r’s trial fell far s hort o f the “utterly corrupted” trial environment that ex i sted in Rideau
, E

stes , and Sheppard
, the three cases the Supreme Court d escribed i n S

killing a s establishing the threshold for presumed prejudice due to p retrial publicity

. Skilling
, 130 S.M U R R A Y V

. S C H R

I R O 54

C t

. a t 2913–14. I n R ideau
, the defendant’s confession wa s broadcast on television three times, and two-thirds of the local community saw o r h eard the b roadcast. See 373 U .S. at 724–26. I n E

stes , there w as ex tensive media presence in the courtroom, including mic r o phones, television cameras, a nd photog raphers; these f

acts combined with the live telecast a nd rebroadcast of a p r e -t rial h earing
, led the Court to conclude that such intrusion was inherently prejudicial. See 381 U.S.
at 550–51. F inally
, in Sheppard
, news articles e m p h a s i z ed that the defendant’s ex tramarital affairs were a motive for the crime, c h aracteriz e d the defendant as a liar, and described incrimi n a t ing evidence and d iscrepancies in defendant’s
statements. S

e e 384 U.S. at 340–41. L ikewise, in both C o l e man a nd Daniels
, an onslaug ht of inflammatory publici t y resulted in a denial of d

u e process. See Coleman
, 778 F .2d at 1538–39; see a lso Daniels
, 428 F .3d a t 121 2

. F or ex ample, in Coleman
, we emphasiz ed comments on the e vidence from law enforcement officials, derog atory descriptions of the defendants, remarks f

rom potential defense attorney s seeking
to avoid a

ppointment, and editorials ex pressing the appropriateness o f the death p enalty

. See Coleman
, 778 F .2d at 1539–40.

B y c ontrast, news c o v erag e o f the crimes commi t t e d b y the Murray b rothers was almost invariably fact–based. There

was n o inflammatory b arrag e of information that would be inadmissible at tr i a l

. Rather, the news reports focused on relay ing m ai n l y evidence presented at trial. These news reports do n ot come any where close to the kind o f “ vivid, unforg ettable” and “blatantl y p rejudicial” atmosphere that occurred in Rideau
, Estes
, and Sheppard

. Skilling
, 130 S. Ct. at 2916–17.M U R R A Y V

. S C H R

I R O 55

Rog er seeks to a v oid this c onclusion by a r gu i n g that the leg al standard for prejudice is somehow lowe r in capital
cases, contending that there is a “ heig htened oblig ation to be particularly serious to the need for chang e of venue for capital cases.” B u t Supreme Court precedent provides no support for this proposition. I n Dobbert
, to illustrate, the Court ex pressly applied Murphy in upholding the petitioner’s death sentence. See Dobbert
, 432 U.S. at 3 0 2

. The Court has not since departed from that standard.

Rog er also notes that M

urphy sets forth a “totality of the circumstances” test for whether media coverag e has “utterly corrupted” the trial, and that the A riz ona Supreme Court therefore erred in holding that Rog e r fell short of the standard because he “failed to show what pretrial publicity was so outrag eous.” T hat is, Rog er believes that he was subjected to too hig h a b ar, in that he should not h a v e been required to c ite specific instances o f outrag eous publicity

. B ut the A r i z o na Supreme Court cited and considered the evidence that Rog er advanced, and simply found that b ecause none of the evidence was indi v i d ually problematic, it would be impossible to conclude that the totality of circumstances h ad “utterly corrupted” the trial as d escribed in Murphy. Murray
, 906 P.2d at 559. This conc l u s i o n was n ot contrary to or an unreasonable application of clearly established federal law, a s summariz e d most recently in Skilling

.

I n additio n , w e conclude that the Ariz ona Supreme C o u rt’s determination that no actual prejudice was shown w a s not contrary to o r a

n unreasonable application of Supreme Court precedent. S

e e Mu’ Min
, 500 U.S. a t 429–30. Althoug h some of the prospective jurors were aware of the crime g enerally
, potential juror b ias was probed ex tensively in the jury q

uestionnaire and du r i n g voir dire

. S ee Murray
,M U R R A Y V

. S C H R

I R O 56

906 P.2d at 559. Any prospective juror w ho f ailed t o convince the court th a t he could b e objective despite the pretrial publicity was not allowed to remain on the jury panel. S e e id

. Once seated, jurors w ere repeatedly a dmonishe d t o avoid media coverag e of the trial proceeding s. S ee id

. After reviewing this record, th e A r iz ona Supreme Court affirmed the trial court’s denial of the requested venue chang e. See id

.

Our independent review of the v o ir dire record reveals that of the seventy -seven potential jurors, only one indicated that she had p reviously formed an opinion reg arding the c ase. That p otential juror s t a t e d: “B eing people were arrested, I automatically thoug ht g uilty .” That same juror indicated that it would be difficult for her to overcome her opinion of g u ilt based upon the arrest of an individual. That juror was

ex c u sed by the trial judg e, a nd only two other potential jurors mentioned that they h ad opinions about the circumstances o f the crime. The one potential juror’s opinion c o ncerned the horrible nature of the crime, not the g uil t o r innocence o f Rog er, while the other potential juror’s opinion was reg arding how a crime like this c o uld happen, not the g uilt or innocence of Rog er. B oth indicated that they could s e t a s i de their opinions and be fair and impartial. The record indicates that

no other potential juror had ex tensive k nowledg e of the case; indeed, some even stated that they had never h e ar d of the

case. W e t h e r e fore conclude that the Ariz ona Supreme Court’s d e termination that Rog er d id not estab l i s h either presumed or act u al prejudice w as neither contrary to nor an unreasonable application of Supreme Court precedent.M U R R A Y V

. S C H R

I R O 57

B. Claim F ive - D eni a l of F air Cross-Section of the Com m unity in the Jury Venire.

Rog er contends that the jury commissioner purposely

ex c luded jurors who stated that it was contrary to their Christian b eliefs to si t i n j u d g ment of others. According to Rog er, this p urposeful e x clusion violated his rig hts u nder the Six th Amendment (the F air Cross-Section Doctrine) and the Equal Protection Clause of the F ourteenth Amendment. 1 0

On direct appea l
, Rog er arg ued that the Six th a nd F ourteenth Amendme n t s had been violated because the jury list was c omposed of an out-of-date d r iver’s license list a

nd did n ot include voter reg istration lists. M o re o v e r, Rog er asserted that even af

t e r the jury list was corrected, because th e deadline for returning jury questionnaires was after the date the jury w ould be picked, p o tential j u rors f rom rural

areas were likely to be underrepresent e d. F inally
, Rog er arg ued that because the state notified j urors to present themselves for service by telephone, its procedures
sy stematically ex cluded individuals w ho could n o t afford telephones. Rog er contended tha t t h e s e failures resulted in the ex clusion of y oung people, poor people, a nd those hailing from r ural areas, t h e r eby d epriving the brothers of a jury o f their peers who were most likely to “understand” them, since the brothers were y

oung , poor, and from rural Alabama.

The Ariz ona Supreme Court thoroug hly d e alt with the issues raise d by Rog er on direct appeal, holding that under Duren and releva nt precedent of its own, Rog er f ailed to

1 0 T h e d istrict co u rt f

o u n d th at Ro g er d id n ot raise th e Fif t h an d Eig h th A m en d m en t asp ects o f th is claim in state co u rt, ren d erin g th o se asp ects of th e claim p ro ced u rally

b arred . W e ag ree.M U R R A Y V

. S C H R

I R O 58

show that y o ung , poor, o r rural peopl e were a “distinctive”
g roup f or fair cross-section purpo ses. Murray
, 906 P.2d at 5 5 6 –57. Rog e r has ag ain raised a fair cross-section cl a i m before us, but f

or g ood reason, makes no ar gu m e nt challeng ing the decision a c t u a lly rendered by the A riz o na Supreme Court. On federal h abeas review, Rog er n o w raises only the ex clusion o f C h r i s tians as the basis f or his Six th Amendment fair cross-section arg ument and F ourteenth Amendment equal protection arg ument. Althoug h Rog er made fair cross-section a n d equal prot e c tion arg uments before the Ariz o n a S upreme Court, he did not mention the

ex c lusion of Christians as a basis for these claims. B efore us, the claim asserting

ex clusion of Christians is brand new.

W e are unable to g rant federal habeas relief when a petitioner has f

ailed to ex haust his claim i n s t a t e court. See 28 U.S.C. § 2254(b)(1)(A). The e x h a u s tion r equirement affords state courts the “opportunity to pass upon and correct alleg ed violations of its p r isoners’ federal rig hts.

. . .” Picard

v. Connor
, 404 U.S. 270, 275 (1971) (c i tation a nd internal quotation marks omitted); see als o Baldwin v. R e ese , 541 U.S. 27, 29 ( 2004). T o sati sfy the e x haustion requirement, a petitioner “ m ust ‘fairly present’ his claim in each appropriate state court (including a state supreme court with powers of discretionary review

. . .”), Baldwin
, 5 41 U.S.
at 29 (citations omitted). The p urpose of the fair presentation doctrine “is to pr e v ent unnecessary conflict b e tween courts equally bo u n d t o g uard and protect rig hts secured b y the Constitution.” Picard
, 404 U.S. at 275 (citation and internal quotation marks omitted). However, “[ t] he r ule would serve

no purpose if it could be satisfied by raising one claim in the
state courts and another in the federal courts.” Id

. at 276. “Only if the state courts h ave had the first opportunity to hear the claim soug ht to be vindica t ed in a federal h abeasM U R R A Y V

. S C H R

I R O 59

proceeding does it make sense to speak of the ex h austion o f
state remedi e s. According ly
, [ the Supreme Court] ha[ s] required a state p ris o n e r t o present the state courts with the

same claim he urg e s upon the federal c o urts.” Id

. (citations omitted) (emphasis added).

Here, Rog er never provided the Ariz o n a Supreme Court with the opportunity to determine whether the ex cl usion o f Christians violat e d his Six th or F ourteenth A mendment rig hts. L ike the state court in P icard
, the Ariz ona Supreme Court h ad no “opportunity t o apply controlling leg al principles to the facts bearing upon (his) constitutional claim.” Id

. at 277 (citation omitted). As in Picard
, we cannot fault the Ariz ona Supreme Court for “failing also to consider

sua sponte” whether the ex clusion of Christ ians mig h t have violated Rog er’s constitutional rig hts. Id

. Rog er’s arg ument before the Ariz ona Supreme Court c o n tained no mention o f Christians being ex cluded from the ju r y p o o l. Thus, we cannot say that Rog e r’s current fair cross-section/equal protection claim predicated on the ex clusion of Christians is the “substantial equivalent” of his c laim before the state court targ e ting the ex clusion of y oung people, p o o r p eople, a nd those from rural areas. Id

. a t 278

. T h is claim, then, is

unex h a usted and procedurally

defaulted. See Ariz

. R. Crim. P. 32.2(a); see also Poland v. Stewart
, 1 69 F .3d 573, 578 (9th Cir. 1999).

Even if this claim were not unex hausted and procedurally defaulted, i t i s w i t h out merit. See 28 U.S.C. § 2254(b)(2) (providing that “[ a] n application for a writ of habeas corpus may be d e nied on the merits, notwithstanding the failure o f the applicant to ex haust t h e r e medies available in the courts of the State”); see a lso Bell v. Cone
, 5 43 U.S. 447, 451 & n.3 (2005) (apply

ing § 2254(b)(2) to reach on th e m e r its aM U R R A Y V

. S C H R

I R O 60

petitioner’s unex hausted b ut meritless cl a i m). The only evidence in the record reg arding the ex clusion of Christians is the following colloquy :

[ Pros e c u tor] : And do y ou [ jury commissioner]

ex c use any

body becau s e they state any particular relig ious denomination?

[ J ury Commissioner] : O nly one g roup, a n d I wish–I don’t remember. Seventh Day A dventists or J ehova’s [ sic] W itnesses have stated on their q

uesti o n n a ire and sent copies, I mean a pag e ou t o f t h e ir B ible that it is
ag ainst their religious beliefs to sit in judg ment of any one. And o nly if they request it.

T o es tablish the lack o f a fair cross-section of the community
, a d efendant must demonstrate that: (1) the g roup alleg ed to be ex cluded is a distinctive one in the community ; (2) r epresentation of this g roup in the jury venires is not fair and reasonable in relation to the n umber of such persons in the community ; and (3) this underrepresent a t i o n is due to sy stematic e x clusion of the g roup in the jury -selection
process. See Berghuis v. Smith
, 130 S. Ct. 1382, 1392 (2010) (citing Duren , 439 U.S. at 364).

An equal p r otection violation arises if a jury selection
process r esulted in a substantial underrepresentation of an identifiable g roup. See Castaneda v. Partida
, 430 U.S. 482, 494 ( 1977). F irst, there must be identification o f a g roup that is r ecog niz able, distinctive, a nd sing led out for different
treatment under the laws as written or applied. See id. Second, there must b e a showing that the distinctive class wasM U R R A Y V

. S C H R

I R O 61

proportionately underrepresented o ver a sig nificant period o f time. See id. F inally
, there m u s t be e v idence that the juror selection process was susceptible to a buse or was not neutral. See id. Only after this prima facie showing is made must the state defend its jury

selection process. See id.

Rog er does not identify any Supreme Court precedent that would require the state to interrog ate the individ u a ls w ho revealed that it was ag ainst their relig ious beliefs to serve on

a jury

, and would require the jurors to re-confirm their ability
to set aside their beliefs and a p p ly the g overning law. To the

ex tent Rog er advan c es a claim of error in rejecting this
arg ument, the claim is meritless.

As for the Six th Am e n d ment claim, Rog er h as failed to sh ow any sy stematic e x clusion of a distinct g roup. I n fact, Rog er has not shown that any Chri s t i ans were ex cluded. Moreover, the jury commissioner testi f i ed that members o f specific relig ious denominations are ex c luded only if they request ex clusion b ased o n their particular relig ious beliefs. This practice does n o t constitute sy stematic ex clusi on. L ikewise, Rog er’s equal protection c l a i m fails because the jury commissioner d id not disclose that any specific relig ious denomination, or Christians, a r e s i n gled out for disparate
treatment. The evidence only sup p o r t s the conclusion that individuals are ex cluded if ex clusion is specifically requested due to relig ious beliefs. B y no stretch of the imag ination does this meag er evidence satisfy t h e r equired showing s o f
sy stematic ex clusion and disparate treatment. Thus, even if Rog er’s claim were not procedurally defaul t e d
, we would conclude that the Ariz ona Supreme Court’s decision deny ing Rog er’s fair cross-section/equal p rotection claim w as not contrary to or an unreasonable application of Supreme Court precedent.M U R R A Y V

. S C H R

I R O 62

C. Claim Six - Batson Violation

Rog er contends t h at the state violated Batson w hen it dismissed the only two H ispanic potential jurors from the jury venire.

F or the reasons s e t forth in Robert Murray v. Schriro
, 745 F .3d 984, 1006–10 (9th Cir. 2014), we affirm the district court’s denial of Rog er’s Batson clai m

. I n a ddition, we a re not persuade d t h at the outcome o f the Batson issue would chang e h ad comparisons b een m a de between prospective juror Alvarado and p rospective jurors A and N. A s Rog er

n o t e d
, both these jurors “edg ed

. . . away from their questionnaire a

nswers” indicating indecisiveness. The third juror mentioned by Rog er, J uror B
, g ave no indication o f indecisiveness.

D. C l aim Seven - Denial o f R equest to Inspect t h e Crim e Scene

Citing United States v

. Valenzuela-Bernal
, 458 U.S. 858 (1982), Rog er arg ues that the trial court denied h i m d ue process b y deny ing his new inv e s t i ga t or access to the crime

scene for inspection. Addi t i o n ally
, Rog er asserts that the Supreme Court o f Ariz ona’s ruling “is not en t itled to any deference,” because it did not address his f ederal constit u tional claims and relied only on state law. Rog er’s
arg uments are unpersuasive.

The last reasoned decision addressing the inspection d ue process claim is the decision o f the Supreme Court o f A riz o na den y i n g relief. The state court found that Rog er failed to support the purported n ec e s s i ty of viewing the crime scene for a second time. S

ee Murray , 906 P.2d at 569.M U R R A Y V

. S C H R

I R O 63

The United States Supreme Court has instruct e d that evidence soug ht b y a defendant must be material. See United States v. Bagley
, 473 U.S. 667, 682 (1985). Merely showing that access to evidenc e w a s denied does not establish a constitutional violation. See Valenzuela-Bernal
, 458 U.S. at 867. The defendant must make a plausible arg ument that the evidence soug ht i s “both material and favorable to his defense,” id
., and not “merely cumulative” to other evidence. Id

. at 873 (footnote reference omitted). Evidence is material in the constitutional sense if there is a “reasonable likelihood” that it “could have affected the judg ment of the trier of fact” if it had been made available to the defense. Id . at 874.

Rog er’s lead coun s el and his investig ator inspected the crime scene shortl y a fter the c r ime w as committed a nd
approx imately a y ear prior to his trial. See Murray
, 906 P.2d
at 569. Co-counsel from the same p ublic d e f e nder’s office and an additional investig ator were subsequently a ssig ned to Rog er’s defense team. See id. However
, n e i ther the new attorney nor the new investig ator visited the crime scene prior
to trial. See id. During trial, defense cou nsel requested an opportunity to revisit the crime scene. See id. The trial court denied t h e r e q uest. S

e e id. The Ariz ona Supreme Court affirmed the trial court’s finding that Rog er failed to establish the need for a second inspection. S ee id.

The state court decision was not contrary to ValenzuelaBernal

. I n V

alenzuela-Bernal the Court ex plained that a d e f e n d ant only h as a rig ht to evidence that is “relevant a n d material” to his defense. Valenzuela-Bernal
, 458 U.S. at 867. Rog er failed to sho w how inspection o f the crime scene a y ear later, and after the scene h ad been c leaned, see Murray
, 906 P.2d at 569, would uncover evidence that was “relevant and material” to his defense. V alenzuela-Bernal
, 458 U .S. atM U R R A Y V

. S C H R

I R O 64

867

. The A riz o na Supreme Court’s decision w as not contrary to or an unreasonable applicatio n o f Supreme Court precedent. See i d

. at 874 (holding that there was no constitutional violation in similar circumstances).

Rog er also contends that b e cause the Ariz ona Supreme Court did not address his f ederal due process claim, no AEDPA d e ference is warranted on this issue. However, a s stated, e ven if the state court d oes not analy ze a claim, we nevertheless review the state court decision with deference to the state court’s denial of relief. See Johnson
, 133 S. Ct. at 1094; see also Cunningham v. W o ng , 704 F .3d 1143, 11 5 3 (9th Cir. 2013). I n the same vein, i f a state court does not

ex p licitly state the reason f or deny ing a claim, we presu me that the state court adjudicated the c l a i m o n its merits. See Richter
, 131 S. Ct. at 784–85. Alt h o u gh this presumption “may be overcome when there is reason to think some other

ex p lanation for the state court’s decision is more likely ,” id

. at 785, Rog er does not sug g est any such reason. W h en a state court determines a federal claim without discussing federal precedent, AEPDA deference to the state court ’ s decision remains, a

nd it is still “the ha b e as p e titioner’s burden” to show “there was no reasonable b a sis f or the state court to deny relief. . . .” Id . at 784.

Althoug h th e A riz ona Supreme Court did not ex plicitly address Rog e r’s federal constitutional claim, it provided adequate reasoning based on state law to affirm t h e t rial court’s ruling deny ing Rog e r’ s motion to revisit the crime

scene. See M

urray , 9 06 P.2d a t 569. Notably
, in his brief to the Ariz ona Supreme Court, Rog er c ited Valenzuela-Bernal
, a case he c haracteriz e d as incorporating “constitutionally
g uaranteed access to evidence.” See J ohnson
, 133 S. Ct. at 1099 (referring to the defendant’s b rief to determine that theM U R R A Y V

. S C H R

I R O 65

federal claim was a ddressed). Moreover, in deny ing Rog er’s claim, the Ariz ona Supreme Court c it e d Ariz ona Rule o f Criminal Procedure 1 5 .1(e), whi c h g o v erns the circumstances under which a trial cou r t m ay g rant additional disclosure requests by the defendant. See Murray
, 906 P.2d at 5 69. A s in Johnson
, it is “difficult to imag ine” the Ariz ona Supreme Court “ announcing an interpretation of” Rule 15.1(e) “that it believed to be less protective th a n ” the F ourteenth Amendment, “as any such interpretation would p r o v i d e no g uidance to state trial judg es bound to follow both stat e a n d federal law.” Johnson
, 133 S. Ct. at 1098. And, as we have already ex plained, it is apparent that “ne i ther the r easoning

nor the r esult of the state-court decision contradicts” the Supreme Court’s rule in V alenzuela-Bernal

. Early v. Packer
, 537 U.S. 3, 8 (2002 )

. Thus, the Ariz ona Supreme Court addressed Rog er’s Six th Am endment claim when it denied relief on Rog er’s challeng e to the denial o f the requested inspection, and its determination was not con t r a r y to or an unreasonable a

pplication o f clearly established f ederal law. See Johnson , 133 S. Ct. at 1099.

E. Claim S i xteen

- Om ission of Voluntary Intoxication Instruction

Citing Dunckhurst v

. Deeds
, 859 F .2d 110 (9th Cir. 1988), Rog e r co n t e nds that failure of the trial court to g ive a volunta r y intox ication instruction, violated his due process rig ht to a fair trial. B o th defendants r e q uested an intox ication instruction, which the trial court denied, re asoning that the defendants “ha[ d n ot] made out any credibl e e vidence on intox ication.”

Rog er’s reliance on Dunck h u r s t i s m i s p l a ced. Dunckhurst is a p re-AEDPA c a se rely ing on our precedent d e velopedM U R R A Y V

. S C H R

I R O 66

during direct a

ppeal of criminal convictions. See 8 59 F .2d at 114 ( citing United States v. Lesin a , 833 F .2d 156 ( 9th Cir. 1987)). O nce ag ain, our circuit precedent is only relevant to the ex tent that “in accordan c e with [ our] usual law-of-thecircuit p rocedures,

. . . [ we] ha[ ve] already held that the particular point in is s u e i s clearly established by Supreme Court p recedent

. . .” Marshall
, 133 S. Ct. at 1 450 (citations omitted). Dunckhurst does not purport to determin e t h a t a particula r r

ule is clearly established federal law under Supreme Court precedent. Consequently
, D unckhurst is inapposite to our analy sis on federal habeas review.

The Ariz ona Supreme Court p rovided the last reaso n e d decision for this claim, affirming the trial court’s conclusion that Rog er had failed to establish that the alcohol he alleg edly consumed affected his “ ability to think, f u n c t ion, or form intent.” Murray
, 906 P.2d at 56 6

. T h e Ariz ona Supreme Court ex plained, that under A.R.S. § 1 3

- 5 0 3 1 1 (1992), a

v o l untary intox ication instruction “should be g iven on l y w h e n t h e record supports such an instruction

. . . . ” Id. at 566–67 (citation omitted). A mere showing of alcohol consumption alone is inadequate to requi r e g iving a n intox ication instruction. See id

. at 567. The defendant must also establish

11 A .R.S. § 1 3

- 5 0 3 (1 9 9 2 ) p ro v id ed :

N o act co m

m itted b y a p erso n w

h ile in a state o f

v o lu n t ary in to x i catio n is less crim i n al b y reaso n o f h is h av in g b ee n i n s u ch co n d itio n , b u t w h en th e actu al

ex isten ce o f th e cu lp ab l e m en tal state o f in ten tio n ally or

w i th th e in ten t t o is a n ecessary elem en t to co n sti t u t e

an y p articu lar sp ecies o r d eg ree o f o f f en se, th e j u ry

m ay tak e in to co n sid eratio n t h e f act th at th e accu s ed

w as in to x icated at th e tim e in d eterm in in g th e cu lp ab le

m en t al state w ith

w h i ch h e co m

m i tted th e act.M U R R A Y V

. S C H R

I R O 67

that the effect of the alcohol neg ated an element of the crime. See id

. The court determined that R o ge r had failed to meet this burden. S

ee id

.

Due p rocess does not require the jury to be instructed
reg arding the defendant’s intox ication at the time of the crime. S ee Montana v. Egelhoff

, 518 U.S. 37, 51, 56 (1996). B ut, wher e a s t a t e has decided that a party is entitled to an intox ication instruction, a fa i l u re to so instruct the jury is reviewed to determine if the error has “so infected the entire
t r i al t hat the resulting conviction violates due process.

. . . ” Estelle
, 502 U.S. at 7 2 (citations omitted). As the A riz o na Supreme Court n oted in its decision on direct a p p e al, “[ a] party is ent i t led to an instruction on any theory reasonably supported by evidence. A n intox ication instruction should be
g iven only w hen the r e c ord supports s uch an instruction.” State v

. LaGrand
, 7 33 P.2d 1066, 1070 (Ariz

. 1987) (citations omitted); see also Murray
, 906 P.2d at 566–67. Rog er faces

a particularly heavy b u rden in seeking to establish a d ue process violation b ecause a jury instructi o n was omitted rather than erroneously g iven. “An omission, or an incomplete instruction, is less likely to b e prejudicial than a misstatement of the law.

. . .” Henderson v. Kibbe
, 431 U.S. 145, 155 (1977).

As the Ariz ona Supreme Court noted, Rog er did present evidence that he had been d rinking on the nig ht of the crime. See 906 P.2d at 566. Rog er’s counsel stated that “[ t] he jury

, from the evidence before it, could perhaps determine that the defendants over the period o f time they had b een drinking
, did become intox icated.

. . .” T he prosecutor responded that “the State doesn’t believe there ’s any evidence o f intox ication. The o nly direct testimony on that was a person at the bar

. . . that said they did not a ppear to be intox icated o rM U R R A Y V

. S C H R

I R O 68

under the influence.

. . .” B ased on t h is evidence, the trial court–and the Ariz ona Supreme Court–found that:

[ Mur r a y had n ot] made out any credible evidence on intox ication. The fact that the d e fendants were drinking isn’t–there’s no te s timony as to what effect that had on their ability to think or their abilities to function o r to form the intent involved, and I will not g ive an instruction on intox ication.

Rog er h as only arg ued that the trial court did not consider certain facts in making its determination that he had failed to show that he was intox icated. Raw speculation a side, Rog er presents no evidence that tends to call into question the trial court’s factual determination that Rog er had n o t proven that his drinking on the nig ht of the crime–the only evidence that could be established–had a substantial effect on him such that he lacked the requisite intent. B ased o n o u r review of the record, we ag ree that the evidence did n o t support Rog er’s voluntary intox ication defense. Therefore, the Ariz o n a Supreme Court’s denial of Rog er’s claim that the trial court’s omission of the intox ication instru c t i o n constituted a d ue process violation was not c ontrary to or an unreasonable application o f federal law as established by the Supreme Cour t

. S e e E stelle
, 502 U.S. a t 72; see also Mathews v

. United States
, 485 U.S. 58, 63 ( 1988) (ex plaining that a defendant is only entitled to an instruction on a defense theory supported by

the evidence).M U R R A Y V

. S C H R

I R O 69

F

. Cl a i m Seventeen - Denial of a Lesser Included Of f ense Instruction

Rog er a rg ues that the trial court denied him due p r ocess when it denied the defendants’ r equest to instruct the jury on second deg ree murder a s a lesser included offense. Relatedly
, Rog er also asserts that the trial court’s decision contravened Enmund v. Florida
, 458 U.S. 782 ( 1 982) and Tison v

. Arizona
, 481 U.S. 137 (1987), by imposing the death penalty when Rog er did not intend to take a life or intend that lethal force be used.

The last rea s o n e d decision addressing this issue is the A r i z ona Supreme Court’s denial o f relief, ex p laining that a lesser included offense ins truction is warranted o nly if supported by the e v idence. Se e Murray
, 906 P.2d at 567. The court reasoned that an instr u c t i on on second deg r ee murder would only

apply to p remeditated murder, but not to felony murder, which was the crime of conviction. See id. I n addition, the c rime of second deg ree murder is characteriz ed by evidence of lack of premeditation and deliberation. See id. The Ariz ona Supreme Court adopted the trial court’s determination—considering that the victims were forced to lie on the carpet and w e r e s h ot in the back of the head with different weapons, the o n l y rational inference was that the murders were d e l i b e r a

t e a n d p remeditated, thereby precluding a verdict of second deg

ree murder. 1 2 See id.

12 A .R.S. § 1 1 0 4 (1 9 9 2 ) p ro v id ed in p ertin en t p art:

A

. A p erso n co m m its seco n d deg ree m

u rd er if w ith o u t p rem ed itatio n :

1

. Su ch p erso n in ten t io n ally cau ses th e d eath o f an o th er p erso n ; o rM U R R A Y V

. S C H R

I R O 70

“[ D] ue p rocess requires that a lesser included offense instruction b e g iven only when the evidence warrants such an instruction.

. . .” Hopper v. E vans , 456 U.S. 605, 611 (1982) (citing Beck v. Alabama
, 447 U.S. 625 (1980)).

The e le ment the Court in Beck found essential to a fair trial was not simply a lesser included offense instruction in the abstract, but the enhanced r ationality and reliability the

ex istence of the instruction introduced into the jury ’s deliberations. W here no lesser included offense ex ists, a lesser included offense i n s t r u c t i o n d e t r a ct s f

r o m , r a t h e r t h a n enhances, the rationality of the process. Beck does not require th a t result. Spaziano v

. Florida , 468 U.S. 447, 455 (1984).

I n Ariz o na, “[ t] o d etermine whether t h e re is sufficient evidence to require the g iving of a lesser i n cluded offense instruction, the test is whether the jury could rationally fail to find the disting uished element of the g r eater offense.

. . . ” S tate v. Krone
, 897 P.2d 621, 625 (Ariz

. 1995) ( i n b a n c ) (quoting State v. Detrick
, 8 73 P.2d 1302, 1305 ( Ariz

. 1 994) (internal quotation marks om i t t e d)). The Ariz ona rule comports with the federal rule and therefore does not offend constitutional standards. See H opper , 456 U.S. at 612 (“The

2

. Kn o w in g th at h is co n d u ct w ill cau se d eath o r serio u s p h y sical in

j u ry , su ch p erso n cau ses th e d eath o f an o th er p erso n ; o r

3

. Un d er c ircu m stan ces m an if estin g ex trem e in d if f eren ce to h u m an l if

e, su ch p erso n re c k lessly

en g ag es in

co n d u ct w

h ich creates a g rav e risk of d eath

an d th ereb y

cau ses th e d eath o f

an o th er p erso n

.M U R R A Y V

. S C H R

I R O 71

federal rule is that a lesser included offense instruction should be g iven if the evidence would permit a jury rationally to find

a defendant g uilty of the lesser offense and acquit him of the
g reater.”) (citation, alteration, and internal quotation marks omitted). Thus, the Ariz ona Supreme Court’s reliance on this rule was not contrary to or an unreasonable applicat ion o f clearly established federal law. 1 3

Moreover, at trial, the judg e d irectly asked what evidence supported an instruction that the offense could have been something other than first-deg ree murder. Rog e r’ s c o unsel could not p oint to any actual evidence sug g est i n g a ny thing other than premeditation. Rather, c ounsel responded that “we
cannot look into the jury ’s mind a nd determine whether or not they are g oing to find premeditation or not. . . .” I n turn, the prosecutor stated:

Here what we have are repeated g unshots

on a helpless couple l ay ing on the floor. Somebo dy is g uilty o f premeditated murder. The defendants ca n arg ue it’s not them certainly
, but the w ay the victims died can only be premedi t ated. T here’s no way that
y ou can look at that set of facts and say that is
not p remedita t e d, looking a t the analy sis under Lamb

.

13 Ro g e r a l s o a r g u es th at “ [i]f th e j u ry h ad b een g iv en th e in t o x icatio n in stru ctio n an d th ey h ad f o u n d [h is] in to x icatio n n eg at ed th e sp ecif ic in ten t n ecessary f

or a co n v ictio n of f

irst d eg ree p rem ed itated m u rd er, th en th e j u ry co u ld h av e f

o u n d [h im ] g u ilty o f seco n d d eg ree m u rd er.

. . .” A s

w e stated ab o v e, th e reco rd d i d n o t su p p o rt an in to x icatio n in stru ctio n , so th is arg u m en t i s u n av ailin g ; th e ev id en ce also d i d n o t w arran t a seco n dd eg ree m u rd er in stru ctio n

b ased o n in t o x icatio n

.M U R R A Y V

. S C H R

I R O 72

B a sed on the record, the trial court ruled:

W e ll, if based on t he phy sical evidence, I don’t see how i t c a n be any thing other than first d eg ree murder. I t ma y not be the defendants, that’s for the jury to decide. The whole d efense is based o n other thing s other than the actual death of the victims. I t’s either first deg ree murder or it’s n othing

. And in essence, I ag ree with the State. So, I will not
g ive second deg ree murder as a lesser.

The Ariz ona Supreme Court a g reed: “Defendants had the victims lie o n t h e carpet of their living room and proceeded
to shoot each of them with different weapons in the ba c k o f the h ead. The only inference that a jury rationally could have drawn was that defendants premeditated.” Murray
, 906 P.2d at 567 (citation omitted).

Rog er arg ues that the Ariz ona Supreme Court’s decision is contrary

to Enmund and Tison

. I n Enmund
, the defendant participated in a robbery that ultimately resulted in murder, althoug h the defendant did not murd e r a n y one or intend for
any one to be killed. See 458 U .S. at 798. The United States S u p r eme Court noted that “the F lorida Supreme Court h eld that the record supported no more than the in f erence that Enmund w as the per s o n i n t h e car by the side of the road at the time of the killing s, wai t i n g to help the robbers

e s c ape.

. . .” Id

. at 788. There w as no e vidence in E nm u n d that the defendant a ctively participated in the murders or was present when the victims were murdered. See id

. Based solely on those f

acts, the Sup r e m e Court held that the imposition of a death sentence upon a defendant who did not kill or intend to k ill the victims violated the Eig hthM U R R A Y V

. S C H R

I R O 73

A m e n d m e nt. See id. at 801. B u t on the other hand, as th e Suprem e Court clarified several y ears later, “major participation in the felony committed, combi n e d w i t h reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement” for when the death penalty m ay be imposed. Tison
, 481 U.S. at 151–52, 158 (so holding where
two brothers broug h t “an arsenal o f lethal weapons” into an Ariz ona prison w ith the int e n t to arm convicted murderers and help them e s cape, “participated fully in the kidnapping and robbery and watched the killing ”).

Unlike the facts in Enmund
, a nd similar to those in Tison
, the Ariz ona Supreme Court f ound that the p hy sical evidence

s u bstantiated Rog er’s involvement as an active participan t

. See Murray
, 906 P.2d a t 5 67. W h en apprehended, Rog er h ad blood on his clothes w hich was not his, but which could have

come from e ither victim. See id. at 5 5 5

. Rog er also discarded a loaded .25 caliber g un immediatel y p r i o r to his arrest, which was consistent with the fired .25 c alibe r shell found at the crime scene. Rog er’s footprints were left at the crime scene, see id

. at 554, and the b rothers possessed items stolen from Grasshopper J unction, including roll ed coins stamped with the name and location of the store, and a cushion cover f

rom the couch that contained blood and tissue f rom Applehans. See id. at 554-55. This and additional evidence tending to show that Rog er intended to take life, o r intended that lethal force b e u sed, support much more than a

mere inference that Rog er was just a person in a car waiting
to help the actual r obbers es c a p e

. T herefore, the A riz o na Supreme Court’s ruling that this record did n ot w a r rant a lesser included offense instruc t i o n was not contrary to or an unreasonable application of Supreme Court precedent.M U R R A Y V

. S C H R

I R O 74

G

. Claim Tw enty- S i x - F a ilure to Appropriately Consider Mitigating Evidence

Rog er a rg ues that the trial court erroneously dete r m i n ed that his dy sfunctional ch ildhood could n ot be considered a s

an independent mitig a tion f actor. Specifically
, Rog er asserts that the state c ourt misapplied Edd ings v. Oklahoma
, 455 U

. S

. 1 0 4
, 115 (1982), and its prog eny by requiring a

nex us between t

h e m i tig ation evidence and commission o f the crimes. Stated differently
, Rog er contends that the A riz o na court required Rog er to demonstrate that the c h i ldhood

ex p eriences offered in mitig ation cont r i b u ted to his commission of the crimes.

The state counters t h a t Rog er did not raise this issue b efore the state court, and as a result, it is proc e d u r a l l y barred. However, Rog e r raised this issue in his direct appeal when h e arg ued that the trial court f a i l ed to objectively consider his mitig a tion evidence. The Ariz ona Supreme Court rejected Rog er’s c laim, finding t hat the sentencing
court reviewed all of the mitig ating e v i d e n c e, but deemed it insufficient to outweig h the ag g ravating f actors. See Murray
, 906 P.2d at 578–79. Rog er now renews h is arg ument that the Ariz ona Supreme Court unconstitutionally applied the causal

nex us test. Rog e r r e lies on the portion of the A riz o na Supreme Court’s decision addressing the trial court’s finding that Ro ge r ’ s childhood was dy sfunctional, and concluding that “he fail[ ed] to show how t h i s backg round impacted his behavior at Grasshopper J unction.” Id . at 577.

Citing Styers v. Sc h r i r o , 547 F .3d 1026 (9th Cir. 2008), Rog er contends that the Ariz ona Supreme Court’s a naly sis o f th e t r ial court’s weig hing is contrary to U nited StatesM U R R A Y V

. S C H R

I R O 75

Supreme Court authority f rom S mith v. Tex a s , 543 U.S. 37 (2004), and related cases.

U n d e r clearly established Supreme Court authority
, a s t a t e

c o urt may not treat mitig ating evidence of a defendan t ’s character or backg round “as irrelevant or nonmitig ating as a matter of law” simply because it does not h ave a causal connection to the crime. See Penry v. Lynaugh
, 492 U

. S. 302, 318 (1989) (citing Eddings
, 455 U .S. at 114 and holding that

a state cannot, “consistent with the E ig hth and F ourteenth Amendments, prevent the sentencer f rom consid e ring a

nd
g iving effect to evidence r elevant to the de f e n d ant’s backgr o u n d o r character or to the circumstances of the offense that mitig ate ag ainst imposing the d eath penalty ”), abrogated on other grounds by Atkins v. Vir g i n i a , 536 U.S. 304 (2002).

Even if we assume the Ar i zona Supreme Court did commit causal nex u s error with respect to Rog er’s troubled childhood, the error was harmless and w e would still deny his claim f or relief. See Stokley v. Ryan
, 705 F .3d 401, 404 (9th Cir. 2 012) ( quoting Brecht v

. Abrahamson
, 507 U.S. 619, 623 (1993)) (ex plaining that a non-structural error requires reversal only if it “h a d s u b s tantial and injurious effect o r influence in d etermining the

. . . verdict”). U nder Stokley
, where the appellate c o u rt reviews a ll of the mitig ating a nd
ag g r ava ting factors individually
, and confirms the trial court’s determi n a t ion that there are no g rounds substantial
enoug h to warrant leniency
, the appellate court’ s E d dings

error with r espect to a relatively minor mitig ating factor does
not create a “rea s o n able likelihood that, but for a f a ilure to ful l y consider [ that factor]
, the [ state] courts would have

come to a different conclusion.

. . .” 705 F .3d a t 405 (citation omitted). Thus, in Stokley we concluded that the Ari z o naM U R R A Y V

. S C H R

I R O 76

Supreme Court’s Eddings error, if a n y , with r espect to family history or g ood behavior while imprisoned, w a s harmless. See id

. Here, as in Stokley
, after “review [ ing ] a nd discuss[ ing ] e ach of the ag gr a v ating and mitig ating f actors individually ,” id

. at 404
, the Ariz ona Supreme Court ag reed with the trial court that R o ger’s mitig ation evidence was minimal “at best” a

n d that there was certainly “no mitig ating evidence sufficiently substantial to c a l l f o r leniency

. . . . ” Murray
, 906 P.2d at 5 79. T herefore, any Eddings error with respect to the e ffect of Rog er’s t r o u b led childhood does not raise a reasonable likelihood that fuller consideration of that relatively minor factor would have led the Ariz ona courts to reach a different conclusion. I n other words, Rog er “cannot demonstrate actual prejudice because he has n o t s hown that the e rror, if any , had a substantial and injurious impact on the verdict. . . .” Stokley , 705 F

. 3d at 404.

H. Claim F orty-F our - Deni a l of Request to Replace Counsel Due to Irreconcilable Conf lict

Rog er asserts that his Six th Amendment rig ht to counsel

was violated because of a n irreco n cilable c onflict with his counsel. Rog er arg ues that his c laim is n o t p rocedurally barred, because he raised the issu e t o the A riz ona Supreme Court and in his PCR petition. The state counters that this issue is procedurally b arred a s determined in the PCR court’s decision dated J anuary 10, 2 000

. W e need not resolve this procedural point, because to the e x tent Rog er arg u es that his claim may be r esurrected under Martinez
, habeas relief is not warranted. Rog er mig ht be entitled to a remand under Martinez if he could establish that h is PCR cou n s e l w a s ineffective for failing to raise the irreconcilable conflict

as s e r t ed by Rog er, a

nd that the underly ing I AC claim is “substantial.” Sexton v. C o z ner , 679 F .3d 1150, 1157 (9thM U R R A Y V

. S C H R

I R O 77

Cir. 2012), a s amended

. We ex amine the record to determine

w hether Rog er has made the required showing o f ineffectiveness of PCR co u nsel. See id. To do so, Rog er must e stablish that his trial counsel’s performance was deficient and that h e was prejudiced as a r esult. S ee id. ; see also Strickland
, 466 U

. S. at 687 (articulating standard for ineffective assistance o f counsel claim). To d emonstrate that the performance by PCR counsel wa s d e ficient, Rog er must show that counsel’s f a ilure to raise the underly ing I AC claim did not “fall[ ] w ithin the wide rang e of r ea s o nable professional assistance” and “ o v ercome the presumption that, under t h e circumstances, the challeng ed action mig h t be considered sound trial strateg y . . . .” S trickland , 466 U.S. at 689 (cit a tion and internal quotation marks omitted). Prejudice is shown by evidence of a “ reasonable probab i l ity that, but for c ounsel’s unprofessional errors, the result of the
p roceeding would have been different. A reasona b l e probability is a proba

b i l i t y sufficient to undermine confidence in the outcome.” Id

. at 6 9 4. H ere, Ro ge r w o u l d have to establish that the outcome of his PCR proceedin g s would have been different.

I f there is a failure of proof on either prong , habeas relief is not warranted. See G e ntry v. Sinclair
, 705 F .3d 884, 899 ( 9 t h C ir. 2013), as a mended

. A defendant’s disag reement with trial counsel’s strateg y does not constitute deficient performance on the part o f tria l counsel. See Strickland
, 466 U.S. at 689–91; see also Raley v. Y lst
, 470 F .3d 7 92, 799 (9th Cir. 2006). Additiona l l y , to demonstrate an irreconcilable conflict, Rog e r must establish that there was a complete breakdown o f c o m munication that substantially interfered with the atto r n ey -client relationship. See United States v. Mendez–Sanchez
, 563 F .3d 935, 943 (9th Cir. 2009).M U R R A Y V

. S C H R

I R O 78

A t the hearing held in r esponse to Rog er’s request t o terminate his attorney s, Rog er confirmed his wish to end his relationship with his attorney s due to a conflict of interest. Rog er’s trial counsel ex plained to the court that there was an irreconcilable difference of opinion reg arding the strateg y for the penalty p h ase proceeding s. T he trial court ulti m ately
g ranted Rog e r’s motion to represent himself and allowed an attorney from the public defender’s office t o remain a s advisory counsel. One week later, Rog er filed a motion requesting appointed counsel. Counsel f rom the public defender’s office informed the trial court that an ethical conflict remained due to the office’s representation of Rog er and another client w ith an a dverse interest who was to testify in response to a p r ospective witness for Robert’s c ase. Counsel also r eminded the court about the c o n flict b etween counsel and Rog er reg arding strateg y for the penalt y phase. Counsel sug g ested to the court that another a ttorney represent Rog er. The court reviewed the sug g e s t i o n and reappointed

c o u n sel from the public d efender’s office, w ith Rog er ag reeing

. The conflict presented to the trial c o u r t by Rog er concerned strateg y for the penalty phase. This issue im plicates attorney strateg y rather than irreconcilable conflict. Thus, Rog er fail e d t o establish that h is claim o f irreconcilable conflict was of sufficient merit to substantiate

a claim o f ineffective assistance of counsel. 1 4 See Sexton
, 679 F .3d a t 1156–57 (e x p l aining that a defendant cannot establi sh that counsel’s performance fell below an objective

14 T h e A rizo n a Su

p rem e Co u

rt in ter p r e t ed th is issu e as a req u est f or h y b rid rep resen tatio n an d ru led t h at th e trial co u rt d i d n o t ab u se its d iscretio n w

h en it d en ied Ro g er’ s req u est. S ee Mu rra y , 9 0 6 P .2 d at 5 6 0

– 6 1

. A lth o u g h i ts co n clu s i o n w a s c o u ch ed in th e co n tex t o f h y b rid
rep resen tatio n , th e A rizo n a Su p rem e Co u rt ad d ressed Ro g er’ s assertio n of irreco n cilab le d if

f eren ces an d af

f irm ed th e t

rial co u rt’ s reap p o in tm en t of

co u n sel f ro m th e p u b lic d ef en der’ s o f

f ice. See id

.M U R R A Y V

. S C H R

I R O 79

standard of reasonableness when the only d isag r eeme nt concerned strateg y

); cf. Daniels v. W

oodford
, 4 28 F

. 3 d 1181, 1199–1200 (9th Cir. 2005) (recogniz ing an irreconcilable conflict w here there w a s a complete lack of communication between attorney

and client).

Rog er failed to establish that the co n f l i c t between his counsel a nd h im was indeed irreconcilable. See MendezSanchez
, 5 63 F .3d a t 9 43 (noting that defendant’s relationship with counsel did not rise to the level o f irreconcilable conflict when the confli ct wa s g enerated from defendant’s g eneral

u n r e a s o n a b l e n e s s )

. Th e r efore, the P C R c o u n s e l ’s
p erformance was not d e f icient. B e cause Rog er d id not establish that his conflict with c ounsel was irreconcilable, his ineffective assistance of counsel claim lacks sufficient merit
to warrant a Martinez remand. 1 5 See Sex t o n , 6 7 9 F .3d at 1156–57 (noting that a

n I AC claim m u s t be substantial to warrant a Martinez remand and that di s a gr eement reg arding strateg y does not constitute ineffectiveness of counse l ); but

see Detrich v. Ryan
, 7 40 F .3d 1 237, 1 248 (9th Cir. 2013) (W

. F letcher, J
., plurality) (ex plaining that in most cases, Martinez motions should be remanded to the district court for a decision in the first instance).

15 In t h e altern ativ e, R o g e r c o n t en ds th at th e d istrict co u rt erred in n o t ad d ressin g h is m o tio n to am en d h is p etitio n to in clu d e th is claim

. Ro g er relies o n t h e Seco n d Circu it’ s d ecisio n i n Littlejo hn v. Artu z , 2 7 1 F.3 d 3 6 0 (2 d Cir. 2 0 0 1 ). Ho w ev er, Littlejo h n is n o t b in d in g p reced en t in th is circu it. Mo re im

p o rtan tly
, an y f

ailu re to ad d ress Ro g er’ s req u est f o r leav e to am en d w as h arm less i n v iew of th e lack o f m erit to h is clai m

. S ee Bo n in v. Ca ld

ero n , 5 9 F.3 d 8 1 5
, 8 45 (9 th Cir. 1 9 9 5 ) (n o tin g th at d en ial of leav e to am en d is ap p ro priate if am en d m en t

w o u ld b e f

u tile).M U R R A Y V

. S C H R

I R O 80

I. Claim F o rty-F ive - I nef f e ctive Assistance of Trial Counsel Due to Counsel’s Inattentiveness

Rog er contends that he was denied the effective a ssist a nce of counsel, because his counsel slept during substant i al portions of his trial. Rog e r further asserts that h is evidentiary hearing reg arding this issue violated due process, because the judg e presiding at his trial was also the presiding judg e at his PCR hearing

.

The Six th Amendment g u arantees the accused the “rig ht
to the e ffective assistance of counsel.” Unit e d States v

. Cronic
, 4 66 U

. S

. 648, 655–56 (1984). The Supreme Court “has concluded that the assistance of c ounsel is among those ‘constitutional rig hts so basic to a fair t r i a l t hat their infraction can never be treated as harmless error.’” Holloway

v. Arkansas
, 435 U .S. 475, 489 (1978) (citing Chapman v

. California
, 3 86 U.S. 18, 23 (1967)). M o r e o ver, “when a defendant is deprived of the presence and a s s i s t ance of his attorney , e ither throug hout the prosecution or during a critical stag e in, at least, the p rosecution of a capital offense, reversal is automatic.” Id

. (citations om i t t e d )

. W e have h eld that when counsel sleeps through a s u b stantial portion of a trial, his client has been d eprive d o f e ffective leg al assistance, resulting in inherent prejudice. See Javor v. United States
, 724 F .2d 831, 833–34 (9th Cir. 1984). Rog er relies solely on

our decision in Javor to suppor t h i s claim. Nevertheless, Rog er’s re l i an c e on Javor is misplaced. Javor is a preAEDPA case that was crafting a rule from ex isting Supreme Court precedent. S

e e id

. W e reiterate that our circuit precedent is only relevant to the ex tent that, “in accordance with [our] usual law-of-the circuit procedures,

. . . [we] ha[ ve] already held that the par t i c u l ar point in issue is clearly established by Supreme C o u rt precedent

. . . .” Marshall
,M U R R A Y V

. S C H R

I R O 81

1 3 3 S

. C t

. at 1450 (citations omitted). As such, Javor i s inapposite to our analy sis on federal habeas review.

The last reasoned state court decision addressing t his claim was the PCR c ourt’s order d a t e d March 21, 2002. After a two-day hearing including witness testimony
, the PCR c ourt concluded that Rog er’s counsel did not actually sleep during the trial. Robert’s tria l counsel testified that Rog er’s trial counsel had a reputation for “doz in g o f f” in
court. She stated that she p ersonally observed Rog er’s counsel “in a posture that look[ ed] like he’s a s l ee p.” However, she admitted that she was not sure at times whether he was doz ing or just listening with his ey es closed. Robert’s counsel d id not contemporaneously inform the trial court o f her observations.

A f o rmer juror testified that she vag uely r e membered Rog er’s lawy er nodding off during the trial. D u r i n g crossex a mination, she conceded that Rog er’s counsel did not close his ey es for long periods of time, and t h a t s he would have informed a bailiff if Rog er’s counsel ha d b e e n asleep for sig nificant portions of the trial.

Rog er’s appellate counsel testified that Rog er specifically told her t hat his trial counsel appeared to doz e during trial. She a lso mentioned that she did n ot raise the issue of Rog er’s trial counsel sleeping
, because it was not part of the r ecord on direct appeal.

Rog er’s trial counsel testified that he remembered Rog er complaining about him sleep i n g d uring jail v isits, b ut not during trial. He did no t re m e m ber sleeping during the trial. The PCR court directly qu estioned Rog er’s trial counsel, asking ex plicitly whether he slept d u r ing the trial. I n reply
,M U R R A Y V

. S C H R

I R O 82

Rog er’s counsel s t a t e d : “Your Honor, quite frankly
, I can’t
say

. I wouldn’t be the one to really know that. I

don’t think I did, but there is a possibility I did. B u t it would have been ba s i c a l ly just a few seconds more than a ny thing else. A cat nap ty pe thing .” He did not admit to sleeping

. The PCR
court then recalled on the record that Rog er’s trial c o unsel appeared g enerally t o b e “fired up” during the cases he h ad tried before the judg e. Trial counsel ag r e ed that he indeed

was ty pically “fired up” for his cases and that he had “tried to g ive [ Rog er’s trial] more because of the importance of it.”

Rog er testified that he observe d his trial counsel asleep first at the jail and then almost daily during trial. During the testimony o f Detective L e n t , the footprint ex pert, Rog er observed his trial counsel asleep for four to five minutes. Rog er also o bserved his trial c ouns e l sleeping during the medical e x aminer’s testimony

. Rog er remembered his trial counsel sleeping throug h other witne s s e s as well. Rog er recalled that he informed his other tr i a l counsel a nd his appellate counsel about his o bservations. R o ge r did not inform the trial court about his observations.

During cross-ex a minat i o n , the state reviewed the trial transcript with Rog er, specifically emphasiz ing witness
t estimony where Rog e r had testified that his counsel was

a s leep. The state c onsistently established that Rog er’s trial counsel was eng ag ed during the witness testimony that Rog er previously associated with h is counsel’s sleepi n g. Rog er admitted during cross-ex amination that he did not specify in his affidavit precisely

when his trial counsel was sleeping

.

The prosecutor testified that Rog er’s t r ial counsel appeared eng ag ed a

n d active during trial. The prose c u tor observed Rog er’s trial counsel listening with his ey es closed.M U R R A Y V

. S C H R

I R O 83

According to the prosecutor, Rog er’s trial counsel had a habit of closing his ey es when he was thinking , and he would nod occasionally
, but wh e n a response was required he would seamlessly open his ey es and res p o nd appropriately
, appearing to be completely

eng ag ed.

Neither the bailiff nor the investig ator remembered Rog er’s trial c ounsel sleeping d uring the trial. T h e same was true for c o-counsel. Co-counsel did not observe Rog er kicking his trial counsel o r trial c ounsel falling a sleep during trial. N e i t her did c o-counsel recall Rog er speaking to him about trial counsel falling asleep during

trial.

After oral arg ument and after r e v iewing b riefs from both counsel, the PCR court entered a minute order deny ing relief. The PCR court acknowledg ed that Robert’s trial counsel a nd

a former juror testified to observing Rog er’s tr i a l counsel sleeping during portions of the trial. However, the PCR court noted that other witnesses and the trial transcript undermined this testimony

. The PCR court f o und that the trial transcript reflected that Rog er’s trial counsel was “actively eng ag ed in the trial.” The PCR court credited t h e t e s t imony of trial counsel that he did not re ca l l s l eeping during the trial. I n addition, th e PCR court found the testimony of the prosecutor, the i n vestig a tor, and the bailiff more c redible. Each o f these three witnesses denied ever seeing Rog er’s trial counsel asleep during the trial. The PCR court was also
persua d e d by c o-counsel’s testimony that Rog er never complained to co-counsel about trial counsel sleeping

.

W e cannot conclude that the PCR court’s rejection o f Rog er’s claim was base d on an u nreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2). Indeed, the record of the trial proceeding s c o nfirms the reasonableness of theM U R R A Y V

. S C H R

I R O 84

PCR cou r t ’ s finding that Rog er’s counsel was not asleep during the trial. Most telling w as the state’s dem o n s t r ation f r o m the transcripts that counsel was actively question i n g witnesses and objecting to testimony at times when R o g er accused counsel of being a s leep. See Hibbler v. Benedetti
, 693 F .3d 1140, 1148–50 (9 th Cir. 2012) (concluding
, a fter reviewing the e vidence p r esented in state court, that the state court’s d e t ermination was not unreasonable). B ecause Rog er’s Strickland claim hing es on th e f a c t that his counsel slept throug h substantial portions of trial, which the record does not support, we conclude that the state co u rt did not unreasonably apply clearly established Supreme Court precedent. W e affirm the district court’s denial of re l i e f on this claim.

The Ariz ona Supreme Court’s rejection of Rog er’s claim that he was denied a full and fair hearing also was not contrary to, or an u nreasonable applicat ion of clearly established Supreme Court precedent. W e have stated that “[ i] t has long been reg arded as normal and p roper for a judg e to sit in the same case upon its remand, and to sit in successive tri a l s involving the same defendant.

. . . ” Gerlaugh v. S

tewart , 129 F

. 3d 1027, 1036 (9th Cir. 1 997) (quoting Liteky v

. Uni t ed States
, 510 U.S. 540, 551 (1994)). T h e re must be more than “the false assumption that trial judg es a re not capable of doing what the law r e q uires” to justify the requirement that a different judg e hear subsequent proceeding s. Id

. The Supreme Court has also recog niz e d that “knowledg e (and the resulting attitudes) that a judg e properly acquired in an earlier proceeding [ is] n o t

. . . ‘ex trajudicial’.

. . . [ T] rial rulings have a judicial expression rather than a judicial source

. T hey may well be based upon

ex trajudicial k

nowledg e or motives.

. . .” Liteky
, 510 U.S. at 545 (citations omitted) (emphases in the orig inal).M U R R A Y V

. S C H R

I R O 85

The judg e who p r e s ides at a trial may , upon completion of the evidence, be ex ceeding ly ill disposed towards the defendant, who has been shown to be a thoroug hly reprehensible
person. B ut the judg e is not thereby recusable for bias or prejudice, since his knowledg e a nd the opinion it produced were prope r l y a nd necessarily acquired in th e c ourse of the proceeding s, and are indeed sometimes (as in

a b ench trial) necessary to comp l e t ion of the judg e’s task. As J udg e J er ome F rank pithily put it: “ I m partiality is not g ullibility

. D i sinterestedness does n ot mean child-lik e innocence. I f t h e judg e did not f orm jud g ments of the actors in those court-house dramas called trials, he could never render dec i s i ons.” Also not subject to deprecatory charact e r iz ation as “bias” or “prejudice” a re opinions held by j u d ges as a result of w hat they learned in earlier proceeding s. I t has long been r eg arded as normal and p ro p e r for

a judg e to s i t i n the same case upon its remand, and to sit in successi v e trials involving the same defendant.

Id . at 550–51 (citations omitted).

Rog er h as not identified any Supreme Court case holding that a defendant is d eprived o f due process when the trial judg e presides over post-conviction proceeding s. Rather, the opposi t e is true. See id .; see also Cook v. Ryan
, 688 F .3d 598, 612 (9th Cir. 2012) (noting that the trial jud g e was “ideally situated” to mak e an assessment of the facts when resolving post-conviction issu e s ) (quoting Schriro v

.M U R R A Y V

. S C H R

I R O 86

Landrigan
, 550 U.S. 4 6 5
, 476 (2007)). The distinction is plain. As a fact witness, the judg e would b e s eeking to persuade the finder of fact to a certain view of the evidence. As the presiding jurist, the judg e is the factfinder, w ith absolutely n o incentive t o s h ad e the facts one way or the

o t h e r

. See
, e.g. , F ed. R. Evid. 605 (providing that the presiding judg e may not testify a s a witness in the trial over which he presides); see also United S tates v. Berber-Tinoco
, 510 F .3d 1083, 1091 (9th Cir. 2007) (holding that a trial court judg e is not a c ompetent witness to factual matters in a case

over which he presides). No similar conundrum ex ists when the trial judg e presides over post-conviction proceeding s. I n the post-conviction proceeding s, the judg e functions as a reviewer o f the trial proceeding s rather than as a chronicler o f the facts. As the Supreme Court h as e x p l ained, the trial judg e’s unique knowledg e of t he trial court proceeding s renders him “ideally situated” to r e v i ew the trial court proceeding s. Landrigan
, 550 U.S. at 476

. R o ger’s d ue process rig hts were honored in full. Serving as an adjudicator rather than as a witness, the PCR court determi n ed that Rog er’s claim lacked merit.

I n this case, the only evidence that Rog er p uts forward is that the judg e stated: “I

g uess I have to tell y o u I remember

some thing s about this trial very well

. . . and I –I never saw [ Roge r ’ s trial counsel] asleep.” Rog er relies upon this
stateme n t t o d e monstrate that the trial judg e “was a key a nd biased witness w ho did not testify but ruled on the motions while his own observations were not subject to crossex a mination.” I t is important to c o n sider the trial judg e’s full
comments:

W e ll, I g uess–I g uess I have to tell y ou I remember some thing s ab o ut this trial veryM U R R A Y V

. S C H R

I R O 87

well. And one was that [ Rog er’s tr i al

c o u nsel] was very ag g ressive, very emphat i c and–but of course y ou know– a n d I –I never

saw him asleep

. B ut, y o u know, I g uess I ’ll l e t y o u have an opportunity to show me tha t he w as sleeping during substantial portions o f th e t rial because we have the Affidavits that

sa y he was. B ut I have to tell y ou, I ’ m skeptical about that because I remember how
ag g r essive he was–ag g ressively he arg u ed when we were o ff the record, and even when

we w ere on the record, the objections in the

case.

So, I g uess I ’ l l s e t that–that one I think
pro b ably should b e set for an evidentiary hearing
, because y o u know, it’s–it’s c ertainly
not something that was on the re c ord a nd certainly not some t h ing that I noticed. So number four we’ll set for evidentiary hearing

.

Read in the contex t of the judg e’s f ull statement, Rog er’s claim is unfounded. T he judg e s t a t ed that his recollection

was that Rog er’s trial couns e l w a s v ery ag g ressive a nd involved a

nd that he h ad no memory of Rog er’s trial counsel sleeping

. Rather than merely de n y i n g t he claim based upon his own recollecti o n, h owever, the judg e elected to hold an evidentiary hea r i n g because “we have the Affidavits that he

was [ sleeping ] .” This situation is n o different f r om a situation w here a judg e retains unex pressed recollec t i o n s o f trial matters and p resides over an ensuing evidentiary hearing

. I n that vein, the judg e’s articulated skepticism do e s n ot provide a basis for Rog er’s c laim o f judicial bias because the judg e’s “knowledg e and the opinion it produced wereM U R R A Y V

. S C H R

I R O 88

properly and necessarily acqu ired in the c ourse of the proceeding s.

. .” Liteky
, 510 U.S

. a t 5 5 1

. Therefore, the Ariz ona Supreme Court’s r ejection of Rog er’s Si x th Amendment claim of judicial bias was not contrary to o r an unreasonable application of clearly established Supreme Court precedent.

F inally
, Rog er asserts that he is entitled to an evidentiary hearing to develop this claim. However, because we review Rog er’s claim under § 2254(d) r ather than de novo , Supreme Court precedent bars him from receiving an e v i dentiary hear i n g. S

ee Pinholster
, 131 S.Ct. at 1398 (directing that habeas claims u nder AEDPA be resolved on the record before the state court).

J. Claim F orty-Eight - Inef f e c tive Assistance of Trial Counsel Based on Counsel’s F ailure to P resent an Exculpatory Witness

Rog er contends that h is c ounsel was ineffective because he “never bothered to interview [ a] cr i t ical witness.

. . . ” Ac c o r d i ng to Rog er, the witness, J ohn Anthony (Anthony )

was located by Robert’s at t o r n e y ’ s i n v e s t i g ator approx imately

one w eek b efore trial. Rog er complains that despite t he discovery of this critical witness, his trial counsel failed to interview the witness, depose h i m , ca l l him to testify
, o r request a c ontinuance. Rog er asserts that his trial counsel h ad “no strateg ic r eason for not calling [ the witness] d i rectly

. ” F ailure to c al l this witness, Rog er arg ues, resulted in the absence of evidence tending to implicate others a nd
sug g esting that he was not pres e nt at the scene of the crime. Rog er maintains that any reasonable attorney would h a ve called this witness.M U R R A Y V

. S C H R

I R O 89

The state PCR court’s denial of this claim did not provide

a r easoned ex planation. See Richter
, 131 S. Ct. a t 784 ( r e cog niz ing that AEDPA “does not require that there be a n opinion from the state c ourt e x plaining the state court’s reasoning . . . .”) (citations omitted). W e can, however, look throug h to the evident i a r

y hearing and o ral arg ument during which the PCR judg e articu l ated the reasons for his later
summary reiteration of his previous decision deny ing Robert’s identical c laim. I n this situation, “‘whe[ re] the state court does not supply r easoni n g f o r its decision,’ we a

re instructed to eng ag e in an ‘independent review of the record’ and a scertain whether the state c ourt’s decision was ‘objectively unreasonable.’” W alker
, 709 F .3d at 939 (quoting Del

g a d o v

. Lewis
, 2 23 F .3d 976, 982 (9th Cir. 2000)). “Crucially
, this i s n o t a de novo review of the constitutional question. Rather, ‘even a strong case for relief does n ot mean the state court’s c o n t r ary conclusion was unreasonable.’” Id . (citations omitted).

Throug h an evidentiary h e aring on Robert’s identical claim, the PCR court learned that Anthony
, th e alleg edly

ex c u lpatory w itness, purportedly witnessed a blue car p arked outside the Grasshopper J uncti o n store on the same nig ht a s the murders. Anthony informed the prosecution’s investig ator that he thoug ht he saw the victim Morrison with thre e men, none of whom resembled Robert. 1 6 Anthony ’s testimony would have supported t h e defense’s theory of the
case, that Rog e r and Robert happened to be at Gr a s shopper J unction, but did not commit the murders. Rober t ’ s t rial counsel infor m e d t he c ourt that neither she n or her investig ator were able to c o n t ac t Anthony
, w hich is why he

w a s never called as a witness. Althoug h her invest i ga t o r

16 T h is is th e sam e ex cu lp ato ry w itn ess to w

h o m Ro g er ref

ers.M U R R A Y V

. S C H R

I R O 90

discovered that Anthony was in a Veterans Administration
treatment center in California, the investig ator was never able to make contact with Anthony

.

The PCR court found that Robert’s trial couns e l h ad investig ated the ex culpatory witness to the best of her ability

. The P C R j u d ge stated: “W e don’t have any proof that the witness would h ave said what’s in the repo r t. W e still haven’t found the witness.” The PCR judg e recalled that, a s trial judg e, h e w ould not have g ranted a continuance for further investig ation, and h a d t o b elieve that both Robert’s trial counsel and Rog er’s trial c ounsel were still try ing to find Anthony throug h the end o f the c a s e. The PCR court f ound
t h at Robert’s counsel was not deficient in her performanc e, and that even if she w e re deficient, the outcome of the trial would not have chang ed.

At the oral arg ument o f Rog er’s identical claim, the PCR judg e indicated that he had already hea r d and considered evidence from Robert r eg arding this ex act claim, resulting in denial of Robert’s c laim. The judg e e x plained that he denied Robert’s identical claim because the evidence had e stablished that the witness was unavailable–he could not be located. And, even if he had been located just prior to trial, counsel could n ot h a ve “g otten h im [ to co u r t] as a witness.” This evidence before the state court “was sufficient to r esolve the factual question” whether Rog er’s counsel performed deficiently
, and thus the PCR court’s failure to hold an evidentiary hearing on the is s u e d i d not “render its factfinding process u n reasonable,” H ibbler
, 693 F .3d a t 1147. B ecause Rog er did not demonstrate that his trial counsel h ad
per f o r med d eficiently
, the PCR court’s rejection of Rog er’s

c l a i m was not contrary to established Supreme Court precedent. See Strickland , 466 U.S. at 687.M U R R A Y V

. S C H R

I R O 91

B e fore u s, Rog er argues that the trial judg e erred by not holding a separate evidentiary h ea ring b efore resolving his identical claim. However, Rog er failed to adduce any evidence raising a question reg arding the actual availability of the witness, or reg arding a lack of dilig ence by his counsel in attempting to locate the witness. Rog er merely stated:

[ My ] position is that any reasonably effective criminal defense lawy er w ould have seen that he was a crucial witness at trial, would have located him, would h ave fou nd him, would have subpoenaed him, would have had him in
court and would h a v e h ad him testify

. [ T rial counsel] d idn’t do any of those thing s, period.

Absolutely no evidence was p r e sented to the PCR court to substantiate Rog er’s assertions. Only speculation was offered. Specifically , Rog er asked for funds so he could:

find Mr. Anthony n ine y ears after the fact so [ he could] present Mr. Anthony to [ the PCR court] so that [ t h e P CR c ourt c o u ld] live a nd in c olor hear Mr. A nthony
, hear his testimony
, evaluate his credibility
, a nd then make a determination whether i f called by an effective counsel Mr. Anthony co u l d have made a difference.

After considering Rog er’s speculative proffer, the PCR judg e h ad no rea s o n t o hold another evidentiary hearing
, especially in view o f the PCR judg e’s recog nition that “there’s a

bsolutely no proof at a l l that [ Anthony ] was available for the trial.”M U R R A Y V

. S C H R

I R O 92

Critical to the PCR judg e’s d e c i s i o n was the fact that “even if [ Rog er’s counsel] w as incompetent, i t w o u ld not have made a difference as far a s t h e verdict was c oncerned. So it would not have made a difference.

. . .” Th u s , i t fairly
appears that the judg e found the e v i d e n c e of g uilt so overwhelming that any testimony A nthony could have g iven would not h ave resulted in a different verdict. I n other words, Rog er could not establish Strickland p reju d i c e. Ultimately
, after evaluating the evidence presented during R o b e rt’s evidentiary hearing and Rog er’s f ailure to proffer any f

urther relevant evidence, the PCR court summarily denied Rog er’s claim of ineffective assistance of counsel.

The district court denie d Rog er’s request for an evidentiary hearing
, and a g reed wi t h the f actual finding s made by the state court. The district c ourt c orrectly denied a federal evidentiary hearing because federal habeas review is limited to t he record before the state c ourt. See Pinholster
, 131 S. Ct. at 1398–1400. Viewing that record, the district
court ex plained that to g rant h abeas relief, the reviewer would have to find that the jury would have b e l i e v e d the defense’s theory that Robert and Rog er burglariz ed the victims’ store and h ome after finding the v i ctims already dead. I n support of this theory
, Rog er relied o n A nthony ’s statement reg arding the three men he observed at the store who did not resemble Robert and Rog er and w ho drove a d ifferent car; a statement from An ge l a A nthony that she heard a man threaten o ne o f the victims the day prior to the m u r d e rs; and p roffered testimony from an u nidentified witness that Robert and Rog er

were elsewhere when the three men w ere spotted at the store. Rog er relies most heavily on the statement of J ohn Anthony as the basis for his I AC claim.M U R R A Y V

. S C H R

I R O 93

The state court determined that Rog er’s counsel was not ineffective in this respect, a nd the state court’s determination

was not contrary t o , o r an unreasonable application of, S trickland o r other Supreme Court p recedent. To estab l i s h ineffective assistance of counsel the petitioner must hurdle an

ex tremely hig h bar. See R i c h t e r , 131 S. Ct. a t 788. Strickland provides the leg al standard f or assessing a c laim o f ineffe c t i v e assistance of counsel o n habeas review. See 466 U.S. at 685–87.

F irst, the defendant must show that counsel’s performance was deficient. This re q u i res showing that cou nsel made errors so serious that c oun sel was n ot functioning a s the “counsel” gu aranteed the defendant by the Six th A m endment. Second, the defendant
must show that the d eficient performance prejudiced the defense. This r equires showing that c ounsel’s errors w ere so serious as to deprive the defendant o f a fair trial, a trial whose result is reliable. Unless a d e f en d ant makes both showing s, it c annot be said that the conviction or death sentence resulted f rom

a breakdown in the ad v e r sary process that renders the result unreliable.

Id . at 687.

To meet the first prong “the d efendant must show that counsel’s representation fell below an objective sta n d a rd o f reasonableness.” Id

. a t 688. T his inquiry is “hig hly deferential.” I

d

. at 689; see also Richter
, 131 S. Ct. at 788. W h en Strickland ’s standards are coupled with the provisions of AEDPA, review is “dou b l y deferential.” Richter
, 131 S.M U R R A Y V

. S C H R

I R O 94

Ct. at 788. “[ C] ounsel has a duty to make reasonab le i n vestig ations or to make a reasonable decision that mak e s particular investig ations u nnecessary

. . . .” Strickland
, 466 U.S. at 691. Reasonableness is viewed as of the time o f
t he conduct and ag ainst the backg round of the facts o f t h e

case. See Rompilla v. Beard
, 545 U.S. 374, 381 (2005). The duty to investig ate does not require “defense lawy e rs to scour the g lobe on the o ff chance somet h i n g will turn up; reasonably

dilig ent counsel may draw a line when they have
g ood reason to think f urth e r investig ation w ould be a waste. . . .” Id . at 383 (citations omitted).

T h e second prong r equires the defendant to “show that there is a reasonable p robability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability i s a probability sufficient to undermine confidence in the outcome.” Strickland
, 466 U .S. at 694. The questi o n f o r a reviewing
court apply ing Strickland tog ether with the § 2254(d) overlay is whether there is a “reasonable arg ument that counsel satisfied Strickland’s deferential standard,” such that the state court’s rejection of the I AC claim w a s not an unreasonable application of Strickland

. Richter , 131 S. Ct. at 788. Relief is warranted o nly i f no reasonable jurist could disag ree that the state court erred. See Pinholster , 131 S. Ct. at 1402.

E v en on de novo review, Rog er’s I AC claim f alte rs o n both prongs of the Strickland standard. Counsel was not deficient, and Rog er suffered n o S t rickland prejudice. A s discussed
, the PCR court h eld an evidentiary hearing before resolving Robert’s I AC claim p redicated on his counsel’s failure to produce J ohn Anthony as a witness. The r e cord

r e f l ec ts that the ex culpatory witness was not available a nd that Robert’s counsel made a r easonable effort to locate a ndM U R R A Y V

. S C H R

I R O 95

present the w itness. Counsel’s p erformance was n o t deficient in v iew of h er reasonable investig atory efforts. See Rompilla
, 545 U.S. a t 382–83. W e a lso ag ree with the district court that
t h e o verwhelming evidence of g uilt forecloses a ny cred i b l e argu ment that the outcome of the trial would have been affected by the proffered e x culpatory evidence. To acquit Robert a nd Rog er, the jury would have had to believe that the brothers found t h e v ictims already dead and g ot the v ictims blood o n their clothes while burg lariz ing the store and the residence. This scenario, by the w ay , was totally inconsistent with the facts that the mal e victim’s wallet containing $800

was l e f t undisturbed in his pants p ocket, and that $172 was found o n a chair. The implausibility of the p roffered

ex c u lpato r y version of events and the streng th of the inculpatory evidence b oth bolster the state court’s fi nding under the doubly deferentia l A E DPA r eview applicable to I AC c laims. See Richter
, 131 S. Ct. at 787–88. B ecause even under de novo review the state court’s denial of Rog er’s I AC claim that parroted Robert’s claim was not cont r a ry to or an unreasonable application of S trickland
, Ro ge r’s c laim fails. See id.

IV. SUMMARY

W e ag ree w ith the district court’s conclusion that Rog er

was not entitled to habeas r e lief on any of the certified c laims because the state c o u r t ’ s r ejection o f these claims was not contrary to or a

n unreasonable application of AEDPA. Even thoug h this sensational, small-town murder under s t a ndably
g enerated substantial media coverag e, the s t at e court’s decision that the coverag e was not constitutionally prejudicial

was not contrary to or an unreasonable application o f Supreme Court precedent. Similarly
, the state court’s rejection of Rog er’s challeng e to the jury venire was n o tM U R R A Y V

. S C H R

I R O 96

contrary to o r an unreasonable application of Supreme Court precedent. Ac ceptance o f the prosecutor’s race-neutral

ex p lanations for the ex ercise o f h is peremptory c halleng e s

was not contrary to or an unreasonable application of Batson. B ecause the Supreme Court has eschewed claims predicated

on the unavailability o f immaterial evidence, the state court’s denial of Rog er’s belated request to inspect a sanitiz ed crime

scene was also not contrary to, or an unreasonable a pplication of, Supreme Court precedent.

The evidence in the record did not support Rog er’s
requ e st for jury instructions on voluntary intox ication a nd second deg ree murder. The state court’s denial o f relief was consistent with Supreme Court precedent.

Any causal nex us error in the state court’s consideration,
at sentencing
, of mitig ation evidenc e relating to Rog er’s troubled childhood was harmless.

The Ariz ona Supreme Court’s decisions deny ing relief on the claims of ineffective assistance of counsel were not contrary to or an unreasonable applicatio n o f Strickland
, particularly in view of the double deference applicable to AEDPA claims of ineffective a ssistance of counsel. The district court co r r e c tly resolved the claims on the evidence presented to the state courts. No cog niz able Martinez claim

was asserted. W e affirm the denial of habeas r elief a s t o a ll certified claims.

AF F IRMED.