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 B E R T W A Y N E 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. 08-99008

D.C. No. 2:99-CV-01812-DGC

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 ued and Submitted September 13, 2012—L as Veg as, Nevada

F iled March 17, 2014

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

Opinion by

J udg e B y beeM U R R A Y V

. S C H R

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SUMMARY *

Habeas Corpus/Death P e nalty

The p anel affirmed the district c ourt’s denial of a 28 U.S

. C

. § 2254 habeas corpus petition challeng ing a conviction and capital sentence for murder.

The panel first held that the sta te court’s denial o f petitioner’s claim—that the prosecuto r violated Batson v

. Kentucky

, 476 U.S. 79 (1986), by using p e r emptory challeng es to strike two Hispanic potential jurors—w a s n o t based on an unreasonable determination of the facts.

The panel nex t held that the state co u rt ’ s denial o f petitioner’s claim o f ineffective assis tance of counsel
reg arding the investig ation and presentation of m i tig ation evidence of petitioner’s troubled childhood and impairments was not based on an unreasonable determination of the facts

or an u nreasonable application of clearly established federal law.

F inally

, the panel declined to g rant a motion to ex pand the certificate of a

ppealability because the district court properly f ound that allowing petitioner to bring numerous pro p o s e d claims in an amended habeas petition would be futile.

* 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

COUNSEL

J ennifer Y. G arc i a (arg ued), Assistant F e deral Public Defender; J on M. Sands, F ederal Public Defender; a nd J aleh Najafi, A ssistant F ederal Public Defender, Phoenix

, Ariz ona, for Petitioner-Appellant.

J effrey A. Z ick ( a rg u ed), Assistant Attorney General; Terry Goddard, Atto rney General; and Kent Cattani, Chief Counsel, Ariz ona Atto r n ey General’s O ffice, Phoenix

, Ariz ona, for Respondents-Appellees.

OP INION

B YB EE, Circuit J udg e:

Robert W ay

ne Murray (“Murray

”) was convicted in Ariz ona of two counts of f irst-deg ree murder a n d sentenced
to death. T he Ariz ona Supre me Court affirmed his conviction, an d t h e United States Supreme Court denied M u rray ’ s petition for c ertiorari. Ariz ona courts denie d Murray ’s request for post-convicti o n relief. I n this h abeas suit b r o ug ht u nder the Antiterrorism and E ffective Death Penalty Act of 1996 (“AEDPA”), Pub. L

. No. 104–132, 110 Stat. 1214, we address three issues: (1) w hether the A riz o na state court’s denial of Murray ’s Batson motion was “ contrary to, or involved an unreasonable applica t i o n of, clearly established F e deral law” or w as “based on an unreasonab le determination of the f

acts,” 28 U.S.C. § 2254(d); ( 2) whether the state court’s denial o f M u rray ’s ineffective a ssistance o f counsel claim was “contrary to, or involved a n unreasonable application of, clearly established F ederal law” or was “ based

on an unreasonable determination of t h e facts,” id. ; a ndM U R R A Y V

. S C H R

I R O 4

(3) whether Murray “made a substantial showing of the denial of a constit utional rig ht,” 2 8 U.S.C. § 2253(c)(2), when the distric t c o u rt denied his “Motion for L eave to F ile a Second Amended Motion for W rit o f Habeas Corpus,” and if so, whether the district court abused its discretion in deny ing the motion. The district court for the District of Ariz ona denied Murray ’s petition for writ of habeas corpus.

W e have jurisdiction pursuant to 2 8 U.S.C. § § 1 291 a nd 2253, and we affirm.

I

. F ACTS AND PROCEDURAL HI STORY

A. Facts

1. B a ckg round

Murray ’s responsibility for the murders is not questioned. On May 14, 1991, L aVern Raduenz stopped at Gras shopper J unction, located near K ing man, Ariz ona, for coffee. Raduenz was a n acquaintance o f D ean Morrison a nd J acqueline Appelhans, who lived a t G r a s s h o p p er J unction a

nd

ran the store/restaurant situated there. A pproaching the restaurant, Raduenz noticed that there w as m o n e y ly ing on the g r ound outside, the r estaurant door was open, and the cash
reg ister w as displaced f

rom its usual position. Raduenz then walked over to Morrison’s house and discovered that the door
to the h ouse was a lso o pen, revealing Morrison’s a nd Appelhans’s b odies, clad in bathrobes, ly ing face down in the living room. Morrison had been shot twice with a .38 c aliber pistol, in the neck and t e m ple, and his skull had been sha ttered by a shotg un blast at c lose r ang e. Appelhans h ad b e e n shot at least twice in the back o f the neck with a .22M U R R A Y V

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caliber w eapon and two .38 caliber slug s were removed from her skull.

Morrison’s h ouse had been ransacked. D rawers were open, items littered abou t , a nd a cushion cover was missing from the couch. I n th e s t o re , the cash-reg ister drawer h ad been r emoved and a roll of c o ins and loose chang e were strewn about the kitchen floor and throug hout the courty ard. Althoug h all of the facts pointed to robbery as the underly ing motivation, $172 w as found ly ing on a d esk chair a nd Morrison’s wallet, containing $800, was undistu r bed in his pants’ p ocket. I n the store, packs of Marlboro cig arettes were left in paper bag s and the g asoline reg ister was on. Outside

on the store’s patio were Morrison’s g lasses, a flashlig ht, a nd

a set o f key s. L aw enforcement officers also discovered g uns, bullets, and shell casing s at the crime scene.

A Mohave County Sheriff’s Department detecti v e analy z ed the tracks—footprints—at the crime scene. B esides those created by Raduenz a nd law enfor c ement officers, the detective identified four sets of tracks

. Two sets of tracks

were attributed to the victims, while the other t w o we re determined to have been made by a pair of tennis shoes a nd

a pair of western-sty

le b oots. Photog raphs of the tracks were taken, and some s k et c hes made. Moreover, the detective determined that the tracks indicated that M o rrison h ad resisted h is a ttacker. N ear some of the tracks a ttributed to Morrison a

nd his assailant, law e nforcement off i c e rs also found tire tracks a ttributed to a G rasshopper J unction tow truck, owned by Morrison, that was nowhere to be f o u n d at the crime scene.

Elsewhere, on the same morning

, an Ariz ona Department of Public Safety officer hap p ened upon a white 1988 F ordM U R R A Y V

. S C H R

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Tempo sedan bearing Alabama license plates. The officer’s

s uspicions were aroused by the vehicle’s behavior, leadi n g the off i ce r t o run a

n inquiry o n the vehicle’s license plate number. The officer le ar n e d t hat the vehicle and its two occupants, Murray a

nd his brother Rog er W ay ne Murray
, were wanted in Alabama, suspected of having been involved in an assault and ro b b e r y and potentially armed a nd dang erous. As the officer attempted to pull o ver the vehicle,

a hig h-speed c h as e ensued. T he v ehicle eventually left the h i g hway

, r

unning a manned and armed roadblock, and o n l y stopping when i t left the road a nd came to an impassable wash.

The driver, Murray
, thre w f ro m the vehicle a .38 c aliber revolver containing four live bullets. A subsequent search o f Murray ’s person y ielded two spent s h o t gu n shells and key s that w ere later determined to fit a 1 9 91 Chevrolet pickup located o n Morrison’s property

. His p asseng er, Rog e r W ay ne Murray
, threw a loaded .25 caliber semi

- a u t o matic p istol from the vehicle. The shell casing s found at the crime scene and the casing s recovered from Murray ’s pocket we re determined to h a v e b e e n fired by the g uns found in the Murray brothers’ possession. The men were w e aring tennis shoes and boots consistent with the tracks identified at Grasshopper J unction.

A subse quent vehicle inventory uncovered: a loaded twelve-g aug e shotg un and live sh e l l s ; a checkered couch cushion, matc hing the pattern o f the couch in Morrison’s house, and containing rolled coins stamped “Dean Enterprises, Grasshopper J unction, Kingm an, Ariz ona, 86401”; a blue pillowcase containing a pprox imately $1400 in rolled coins a

nd $3300 in cash; g loves; a receipt from the Holiday House Motel in King man, Ariz ona, dat e d M ay 12,M U R R A Y V

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1991 (the Murray brothers had listed a 1 988 F ord on the hotel
reg istration card and had checked out on May 13, 1991); a nd

a road atlas with the locations of two rural shops circled, including Grasshopper J u nction. A scanner and connecting knob, fitting the empty b r a c k et of the Grasshopper J unction
t o w truck that h ad left the tire tracks found at the c ri m e scene—which was later discovered abandoned on westbound I -40—were also found in the vehicle.

Human blood and tissue was found o n the Murr a y brothers’ clothing

, as well as on the cushion cover recovered from their v ehicle. Bl ood tests indicated that the blood on Rog er W ay

ne Murray ’s pants c ould have come from t h e victims or Murray ; the b lood on M u r r ay ’s shirt could have

come from the victims, b u t n o t f rom Rog er W ay

n e Murray ;

an d t he blood on the cushion could have come from Appelhans, but not Morrison or e ither o f the Murray brothers.

2. J ury Selection and Trial

The Murray s w er e arrested and indicted in Mohave County
, Ariz ona, for the f irst-deg ree mur d e r s of Morrison and Appelhans, and the armed robbery o f Morrison. During jury selection, after the trial court ex cused potential jurors for
cause, only two Hispanic venire members remained: potential jurors Peth e r s a nd Alvardo. The prosecutor then used peremptory challeng es to dismiss the two remaining Hispanic potential jurors. Murray ’s trial counsel o bjec t e d to the prosecutor’s u se of the peremptory challeng es and requested that the trial court conduct an inquiry un d e r B atson v

. Kentucky , 476 U.S. 79 (1986).M U R R A Y V

. S C H R

I R O 8

I n lig h t of the objection, the trial judg e asked the prosecutor to respond. Reg arding potential juror Pethers, the following colloquy

ensued:

PROSECUTOR: Your Honor, first, as to Ms. Pethers, I don’t believe that she is a Hispanic. I d o n’t recall seeing that o n her jury
qu es t ionnaire, and I don’t recall if she appeared to talk Hispanic to me. So, I am not sure that that’s a showing

—

THE COURT: Idon’t have the questionnaire in front of me.

DEF E NSE: The questi o nnaire did indicate that she’s Hispan i c, Your H onor. I believe her maiden n ame was G arcia, but h er first name is Christina.

TH E C O URT: I remember she said her mother’s name was Garcia.

PROSECUTOR: Rig ht. I am no t sure that’s Hispanic, Garcia, as oppos e d to Spanish, the
amount I k

n ow about her mo t h e r f rom the prosecutor. I

could be wrong , I don’t know.

THE COURT: W ell, of course, I can look at the q uestionnaires. I will have to take a recess to do that. B ut, let’s assume for the time being that she is H i s panic and the defense is
correct.M U R R A Y V

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PROSECUTOR: Your Honor, the S t ate recently did a major d

rug investig ation of her mother a n d h er m other’s b rother

. . . . I t’s a very big case. B o th of those defendants w ent to jail for a time. I ’ m not sure o f the status o f Mrs. Garcia. F rom what Mrs. Pethe rs said, the cha r ge was dismissed. I believe there’s been some sort of neg o tiated deal, but I am

n o t p o sitive about that. B ut, I know both those people were h eavy into d rug s. B oth o f the people around them were suspected o f being in drug s. There’s a forfeiture action proceeding ag ains t G arcia, Mallon. This being the d aug hter, I d o not believe that she—I don’t want he r on the jury for those reasons, possible bias.

Reg arding potential juror Alvardo, the prosecutor stated:

PR O S E C U T O R : M r

. A l v a r d o is Hispanic, a

nd it w as a close call on that strike. W hat I w ent

on is, as Mr. Alvardo told the Court, he knows
me, I know him. Not well. I ’m g oing basically on my perso n al knowledg e of Mr. A l vardo five or six y ears ag o. I was dating a lady who was a nurse, g oing to various social functions, parties, wh a t n o t. I met Mr. Alvardo probably a half a doz en ti m e s any w ay , and I had discussions with h im. The socia l functions a t these parties, my recollection of Mr. Al v ardo is he’s a very , very n ice person. He is too nice. You couldn’t g e t him to disag ree wi t h y ou. He didn’t want to hurt any body

. He i s justM U R R A Y V

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indec i s i v e , is my recollection o f him. My strike on him is solely g oing ba c k to my personal k

nowledg e of mee t i n g him numerous times four or six y ears ag o.

The trial c ourt denied Murray ’s B a tson objections. The trial judg e stated that based on his “own o pinions about those particula r j u r ors[ ,]

. . . the reasons g iven by the State a re sufficient

. . . [ and] c onsistent wit h m y own a ssessments o f those particular jurors.” Subsequently

, a jury was empaneled and the joint trial of the Murray brothers beg an.

At the c onclusion of their joint jury trial, Murray and his brother were both f

ound g uilty of the first-deg ree murders o f Morrison and Appelhans, and the armed robbery o f Morrison.

3. Sentencing

Prior to Murray ’s sentencing hearing

, the Mohave County P r o b a t i o n D e p a r t m ent conducted a p re-sente n c e i n v e s t i g a t i o n

. As part of that investig ation, Murray was interviewed to prepare a social h istory

. I n that interview, Murray spoke o f

a childhood marred by an a busive father and his own g eneral failure in a ll activities during his y outh. Murray discussed his educational (both t

r a d i tional a

n d vocational) and employ ment backg round. Murray detailed his medical p roblems, including “ diz z y spells and headaches,” and th e substance abuse that he beg an to eng ag e i n during his teenag e y ears. Accompany

ing the pre-sentence investig ation report was a record of Murray ’s prior criminal offenses.

I n addition to the information c ontained in the p r e

sentence investig ation r eport, Murray ’s trial c ounsel, O’Neill, prepared a Pre-Sentence Memorandum (“Memorandum”) forM U R R A Y V

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the trial judg e to consider a t Murray ’s ag g ravation/mitig ation hearing

. The Memorandum included attachments c ontaining Murray ’s prison records; interviews p roviding information
reg arding h is employ

ment history

, including the interview o f

a former co-worker; and correspondence and interviews with

a number of Murray ’s friends

, family members, a nd acquaintances, detailing his personal a nd family backg r ound and difficult childhood. T h e d ates on the letters a nd interviews indicate that O’Neill beg an investig a ting Murray ’s backg round prior to the conclusion o f the trial’s g u ilt phase. The Memorandum also chronic l ed details f rom Murray ’s dy sfunc tional childhood, such a s his suffering repeated phy sical abuse at the hands of h i s fa t her; witnessing his father’s involvement in my riad illeg a l activities; and records showing that he was often absent from school.

At Murray ’ s sentencing hearing

, the trial judg e stated that
t h e Memorandum and attached documents would b e taken into consideration. The evidence actually p resented at the sentencing hearing

, thoug h, went even further. At that time, O’Neill e ntered into evidence: a psy c h i a t r ic evaluation o f Murray
, conducted by Dr. J ack Potts; a nd l e tters from a

nd interviews with family members, friends, classmates, and coworkers on Murray ’s behalf. F u rthermore, B renda Murray and Ruby B r adford, Murray ’s mother and a unt re s p ectively

, testified in person. Althoug h from the record it appears that Ang ela Hall, Murray ’ s y oung er s ister, was also present a nd

re a d y t o testify

, she did n o t testify at Murray ’s sentencing hearing

.

Dr. Potts’ psy chiatric evaluation, which was also entered into evidence at the sentencing hearing

, relied up o n information contained in: t he pre-sentence investig ation report and c o r

r e sponding attachments; letters written b etweenM U R R A Y V

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the Murray brothers w hile incarcerated; Murray ’s criminal record from Alabama; interviews w ith Murray ’ s family members, friends, classmates, and co-workers ; p o lice reports;

an d M u r r a y ’s school records. Dr. Potts was aware o f Murray ’s medical issues, su ch as fecal and urinary incontinence, as well as h is history o f intense headaches a nd seiz ures. Moreover, D r. Potts’ evaluation discussed the varied p h y s ical and psy cholog ical impacts of Murray ’s dy sfunctional c hildhood. Considering all of these factors, Dr. Potts c oncluded that Murray ’ s circumstances warranted a mitig ated sentence.

B a sed upon t h e e vidence presented at both the trial a nd sentencing hearing

, the trial judg e f ound that the state h ad
proven three ag g ravating factors bey ond a reasonable doubt. Moreover, the trial judg e found that Murray had proven two mitig ating f

actors by a preponderance of the evi d e n c e : that M u r r ay was capable of r ehabilitation and that Murray suffered f rom a dy sfunctional c hildhoo d

. The trial judg e ruled that the mitig ating factors were “no t s u fficiently substantial to outweig h the ag g r avating circumstances proved by the State and to call for leniency .” Murray w as sentenced to death.

B

. Procedural History

Murray appealed his conviction and death s e n t e nce directly to the Ariz o na Supreme Court. After conducting an independent r eview, the Ariz ona Supreme Court affirmed Mu r ray ’ s conviction and d eath sentence, finding no constitutional infirmity

. State v. Murray
, 906 P.2d 542 (Ariz

. 1995) (in banc). Murray ’s sub s e quent motion for reconsideration was denied. L ikewise, Murray ’s p etition for certiorari was denied by the United States Supreme Co u r t

.M U R R A Y V

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Murray v

. Arizona
, 518 U .S. 1010 (1996). Murray then filed

a p etition for post-conviction relief (“PCR1”) in Ariz ona state court. The state court denied the PCR1 a nd the A riz o na Supreme Court summarily denied review.

I n lig ht of the Supreme Court’s intervening ruling in Ring

v. A rizona
, 536 U.S. 584 (2 0 0 2), Murray moved to stay the federal habeas proceeding s. The district court g ranted a stay limited to the sentencing -related claims and directed Murray
to pursue additional state po s t-conviction relief for his potential Ring claim.

After the Ariz ona Supreme Court denied review, the district c ourt’s stay was lifted and Murray filed a “Motion for L eave to F ile a Second A men d e d P e tition for Habeas Corpus.” Murray ’ s p roposed Second A mended Petition attempted to include h is previously withdrawn claims, as w ell

as one new claim, in his federal habeas petition. The district
court denied Murray ’s motion to a mend. The district court denied Murray ’s F irst A mended Petition for W rit of Habeas Corpus on the merits a

nd declined to i s sue a certificate o f appealability . Murray filed a timely Notice of Appeal.

I I . STANDARD OF REVI EW

A. Certified C l a ims

— B atson and I neffective Assistance of Counsel

W e review de novo the district court’s denial of a petition for writ of habeas corpus. Lopez v. Thomp s o n , 2 0 2 F .3d 1110, 1116 (9th Cir. 20 0 0 ) ( en banc). However, because Murray filed his federal habeas p etition on October 7, 1999, after AEDPA’s effective date, we are bound by AEDPA. SeeM U R R A Y V

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V a l er i o v. Crawford

, 306 F

. 3d 742, 763 (9th Cir. 2002) (e n banc) (specify

ing April 24, 1996 as AEDPA’s effective date).

AEDPA authoriz es the g r ant of a state prisoner’s petition for a writ o f habeas cor pus w hen the relevant state-court decision w as (1) “contrary to, or involved an unreas o n able application of, clearly established F ederal law, as determined by the Supreme Court” or ( 2 ) “based on an unreasonable de t e r m i n ation of the facts in lig ht of the evidence presented in the State court proceeding .” 28 U.S.C. § 2254(d).

Under AEDPA, w e review the last reason e d state-court d e c i s i o n

. Barker v. Fleming

, 4 23 F .3d 1 085, 1091 (9th Cir. 2005). W hen a state court does not e x plain the reason f or its decisio n, we “look throug h ” to the last state-court decision that provides a reasoned ex planation capable of review. Shackleford v. Hubbard

, 234 F

. 3d 107 2
, 1079 n.2 (9th Cir. 2000). At times, however, no state-court decision fu r n ishes

a basis for the state court’s underly ing reasoning

. I n such a circumstance, our duty under AEDPA is not a b s o l v ed. See Harrington v. Richter

, 131 S. Ct. 770, 784–85 (2011) (presuming that a state court’s unex plained, summary denial of the prisoner’s habeas p et ition constituted an a djudication

on the merits); see also Johnson v

. W illiams

, 133 S. Ct. 1088, 1096 (2013) (applying Richter ’ s presumption to a state-court decision that addressed some, b ut not a ll, of a defendant’s federal claims). “[ T] he h abeas p etitioner’s burden still must be met by showing there w as no reasonable basis for the state court to d eny relief.” Richter

, 1 3 1 S

. C t

. a t 784. T o assess whether a p etitioner has met this burden, we must ask “what
arg uments or theories supported or

. . . could have supported

. . . the state court’s decision,” and determine “whether it is possible f

airminded j urists could disag ree that those
arg uments or theories are incons i s t en t with the holding in aM U R R A Y V

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prior decision of” t h e S u p reme Court. Id. at 786. Thus, “‘when the state court does not supply reaso n ing for its decision,’ we are inst ru c t ed to eng ag e in an ‘independent review o f the record’ and ascertain w h ether the state court’s decision was ‘objectively unreasonable.’” W alker v. Martel

, 709 F .3d 9 25, 939 (9th Cir. 2013) (quoting Delgado v. Lewis
, 223 F .3d 976, 982 (9th Cir. 2000)). “Crucially

, t h i s is not a de novo r eview of the constitutional question,” id.

, a s “‘even

a strong case for relief does not mean the state court’s contrary c onclusion was u nreasonable,’” id. (quoting Richter

, 131 S. Ct. at 786.).

1. Contrary to, or an Un r e a s onable Application o f Clearly Established F ederal L aw Under § 2254(d)(1)

Clearly established F e deral law “refers to the holding s, a s opposed to the dicta, of th[ e Supreme] Court’s decisions as o f the time of the relevant state-court decision .” Lockyer v

. Andrade

, 538 U.S. 63, 71 (2003) (quoting W illiams v. Taylor

, 529 U .S. 362, 4 12 (2000)). Obviously

, a state-court decision
cannot be contrary to clearly established F ederal law that was not y et in ex istence.

Our precedent cannot be mistaken for clearly e stablished Supreme Court law. Marshall v. Rodgers

, 133 S

. C t

. 1446, 1450–51 (2013) (per curiam); Parker v. M atthews

, 132 S. Ct. 2148, 2155 (2012) (per curiam).

Althoug h an appellate p anel may , in accordance w i th its usual law-of-the-circuit procedu r es, look to circuit precedent to ascertain whether it h a s a l ready held that the particular point in issue is clearly established by Supreme Court precedent, it may notM U R R A Y V

. S C H R

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c a n v a s s c i rcuit decisions to determine whethe r

a particular rule of l a w is so widely accepted
among the F ederal Circuits that i t would, if presented to this Court, be accepted as correct.

Marshall

, 133 S. Ct. at 1450–51 (internal citations omitted). “[ C] ircuit p recedent may [ not] be used to refine or sharpen a g eneral principle of Supreme Court jurispr udence into a speci f i c l e g al rule that [the Supreme] Court has not announced.” I

d. at 1450. Thus, w e must keep in mind that “only the Supreme Court’s holding s are binding on the state courts a nd only those holding s need be reasonably applied.” C l ark v. M

urphy

, 331 F .3d 1062, 1069 (9th Cir. 2003), overruled on other grounds by Lockyer v. Andrade

, 538 U.S. 63, 71 (2003).

Section 2254(d)(1) provides that a state-court decision
may be “ co n t r ary ” to Supreme Court precedent in two circumstances. F irst, a state-court decision i s c ontrary to F ederal law if “the state court arrives at a conclusion opposite
to that reached by th[ e Supreme] Court on a question of law,”

or “ t h e state court confronts f acts that are materially indisting uishable from a relevant Supreme C ourt p recedent and arrives at a result opposite to [ the Su preme Court]

. ” W illiams

, 529 U.S. at 405. Thus, the “contr a r y to” prong requires a direct a

n d irreconcil a b l e c onflict with Supreme Court precedent.

Second, § 2 254(d)(1) provides that a state-court decision mig ht offend cle a r l y established F e deral law in a manner actionable under AEDPA where the state-court d e cision is an unreasonable application of Supreme Court precedent. A
state-court decision is a n “unreasonable application” o f Supreme Court precedent if “the state court identifies theM U R R A Y V

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correct g overning leg al rule from th[ e Supreme] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case,” or “ t h e state court either unreasonably

ex tends a leg al principle from [ Supreme Court] precedent to

a new c ontex t where it shou ld not apply or unreasonably refuses to ex tend that principle to a new contex t wh er e i t should apply .” Id. at 407. I t is not, however, “an unreasonable app lication of clearly established F ederal law for a state court to decl ine to a pply a specific leg al rule that has not been squarely established by th[ e Suprem e] Court.” Richter

, 131 S. Ct. at 786 (alteration omitted). B ecause, like
state courts, we have responsib i l i t y for direct review o f federal crim i n a l a p peals, we may have developed our o wn body of constitutional law independent of the Supreme Court. A state-court d ecision that we d etermine to b e inconsi s t ent with our cases is not necessarily “objectively unreasonable” and therefore an unreasonable application of clearly established F e deral law “as determined by the Supreme Court.” I

d. ; see also Marshall v. Rod g e r s , 133 S. Ct. at 1450–51 ( noting the division of authori t y b e t ween the state court and the federal circuit court, ex pressing no view on the merits of the underly ing claim, and r e v ersing the g rant o f habeas). T he deferen tial standard imposed under AEDPA cloaks a state court’s determination with reasonableness, so long as “fairminded juri s ts could disag ree” as to w hether a claim lacks merit. Y

arborough v. Alvarado

, 5 4 1 U.S. 652, 664 (2004). This test is “hig hly deferential

. . . [ and] demands that state-court decisions be g iven the benefit of the doubt.” Cullen v. Pinholster , 131 S. Ct. 1388, 1398 (2011).

I t is important to note, however, that under eithe r p r ong

a state court’s decision d o e s not need to cite the Supreme Court’s c ases, “indeed, [ the state c ourt] does not even [ need
to be] aware [ ] of [the Supreme Court’s] cases, so lon g a sM U R R A Y V

. S C H R

I R O 18

neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer

, 5 37 U.S. 3, 8 (2002) (per curiam); see also Mitchell v. E sparza , 5 40 U.S. 12, 16 (2003). Thus, so long as the state court’s decision is not inconsistent with Supreme Court p recedent, AEDP A b ars relief under 28 U.S.C. § 2254(d)(1).

Along w ith the sig nificant deference AEDPA requires us to afford sta t e courts’ decisions, AEDPA also restricts the
scope o f the evidence that we can rely on in the nor m al

course of discharg ing our responsibilities under § 2 2 54(d)(1). Under § 2254(d)(1), our review is “limited to the record that

was before the st a t e court that adjudicated the claim on the merits.” Pinholster

, 13 1 S. Ct. at 1398. Thus, AEDPA’s “backward-looking lang uag e require s an ex amination of the
state-court d ecision at the t i m e it was made. I t [ then log ical l y ] follows that the record under review is limited to the record in ex istence at that same time, i. e. , the record before the state court.” Id.

2. U n reasonable Determination of the F acts in L ig ht o f the E vidence Presented in the State Court Proceeding Under §§ 2254(d)(2) and (e)(1)

AEDPA has two provisions g o v e r n i ng the review of a state court’s determinations of fact. Section 2254(d)(2)
states:

An application for a writ of habeas corpus on behalf of a person in custody p ursuan t t o the judg ment of a State court shall not be g ranted with respect to any claim that was adjudicated

on the merits in State court p roceeding s unless the adjudication of the claim

. . . resulted in aM U R R A Y V

. S C H R

I R O 19

decis i o n that was based on an unreasonable determination of the facts in lig ht of the evidence p r esented in the State court proceeding

.

Section 2254(e)(1), how e v e r , l e n d s s t a t e

- c o u r t determinations of fact a presumption of correctness:

I n a proceeding institute d by an application for a writ of habeas corpus by a p e r son in

c u s t o d y pursuant to the judg ment of a State court, a determination of a factual issue made by a State court s h all be presumed to be
correct. The a

pplicant shall have the burden o f rebutting the presumption of correctness b y clear and convincing

evidence.

Tog ether, these two provisions g overn factual c h alleng es to

a state-court c onviction on collateral review. There i s some confusion, however, in our cases over the interaction b etween these two provisions.

I n Taylor v. Maddox

, 366 F .3d 992 (9t h Cir. 2004), we read these two provisi o n s t o apply to two different ty pes o f challeng es. F irst, we read § 2254(d)(2) to govern h abeas petitions “based e ntirely on the state record.” Id. at 999. This

we termed an “intrinsic” challeng e to the state court’s determination of fact. Id. at 999–1000. A successful intrinsic challeng e may be b ased on a claim that the state-court decision is base d o n a “finding [ that] is unsupported b y sufficient evidence”; “the process e mploy ed b y the state court [ wa ] s defective”; or “that no f inding was made by the state court at all,” when it was required to make a finding

. Id. atM U R R A Y V

. S C H R

I R O 20

999. A n intrinsic r eview requires th a t w e “be p a rticularly deferential to our state-court colleag ues.” Id. at 1000.

W e said in Taylor that when we p e rform an intrinsic review, we may only h old that a state court’s decisio n w a s based on an unreasonable determination of the facts i f “ we [ are] convinced that an appellate panel, apply ing the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Id. A c cording ly

, we said that we may only hold that a state court’s factfinding
process is materially defective if we a r e “satisf i e d that any appellate court to whom the d e f ect is pointed o u t would be

u n reasonable in holding that the state court’s fact-finding process was adequate.” Id.

Second, w e read § 2254(e)( 1) to apply where the h abeas
p e t i tioner wishes to introduce facts outside the state co u r t record, “ i.e.
, evidenc e presented for the first time in federal court.” Id. This we termed, an “ex trinsic” challeng e t o t he
state court’s determination of fact. Id. U nder this provision, if a habeas petitioner fails to raise any intrinsic challeng e, o r after our own intrinsic review w e de t ermine that the state court’s decision was not based on a n intrinsica l ly unreasonable d etermination o f f act, then “the state court’s finding s are dressed in a p r e s u mption of correctness, which then helps steel them ag ainst any challeng e based on e x trinsic evidence, i.e.
, evidence presented for the first time in federal court.” Id. Thus, we ex plained in Taylor , “the presumption of correctness and the c lear-and-convincing standard of proof only come into p l a y once the state c ourt’s fact-finding s survive any intrinsic challeng e; they do not ap p l y to a challeng e that is g overned by the deference implicit in the ‘unreasonable det e r

m i n a t i o n ’ s t a n d a r d o f s e c t i on 2254(d)(2).” Id. Under Taylor

, § § 2 2 5 4 ( d)(2) and (e)(1) are readM U R R A Y V

. S C H R

I R O 21

separately and must not be confused. See, e.g. , Kesser v

. Cambra

, 465 F .3d 351, 358 n.1 (9th Cir. 2006 ) (en banc); Buckley v. Terhune

, 3 97 F

. 3d 1149, 1154–55 (9th Cir. 2005), affirmed on other groun ds by 441 F .3d 688 ( 9th Cir. 2 006) (en banc).

Pinhols t er eliminated the relevance of “ex trinsic” challeng es when we are reviewing state-court decisions under AEDPA
, h o wever, because it held that p etitioners may introduce new evidence in federa l c o u r t only for claims that

we review de novo. See P inholster

, 1 31 S. Ct. at 1400–01 &

nn. 7, 10; see also Stokley v. Ryan
, 659 F .3d 802, 807–08 (9th Cir. 2011). Thus Tayl o r ’ s sug g estion that an “ex trinsic” challeng e may occur “once the sta t e c ourt’s fact-finding s survive any intrinsic c halleng e” under § 2254(d)(2) is no long er a pplicable. S

ee Taylor

, 3 66 F .3d at 1000. After Pinholster

, a federal habeas court may c o nsider new evidence only on d e novo r eview, subject to the limitations o f § 2254(e)(2). 1 See Stokley , 659 F .3d at 808.

How we should now read § 2254(d)(2) an d ( e)(1) in
contex t of “ intrinsic” challeng es to state-court f actual

1 If an ap p lican t f

o r h ab eas relief “ h as f

ailed to dev elo p th e f

actu al b asis

o f a claim in State co u rt pro ceed in g s,” § 2 2 5 4 (e)(2 ) b ars f ed eral co u rts f ro m h old in g an ev id en tiary h earin g ex cep t in tw o circu m stan ces: (1 ) “ th e claim relies o n

. . . a ne w r ule o f co n stitu tio n al law

, m ad e retro activ e to

cases o n co l lateral rev iew b y t h e S u p rem e C o u rt, th at w as p rev io u sly

u n av ailab le”; o r (2 ) “ th e claim relies o n

. . . a f actu al p red icate th at co u ld

n o t h av e b een p rev io u sly d isco v ered t h ro u g h th e ex ercise o f du e d ilig en ce.” 2 8 U.S.C. § § 2 2 5 4 (e)(2 )(A )(i), (ii). I f o n e o f th ese circu m s tan ces is presen t, th en th e ap plican t m u st also sh o w th at “ th e f

acts

u n d erly in g t

h e claim w o u ld b e su f

f icien t t o e s t ab lish b y clear an d

co n v in cin g ev id en ce th at b u t f o r co n stitu

tio n al erro r, n o reaso n ab le f actf in d er w o u ld h av e f

o u n d t h e ap p li c a n t g u ilty o f th e u n d erly in g

o f f en se.” Id . § 2 2 5 4 (e)(2 )(B ).M U R R A Y V

. S C H R

I R O 22

finding s u nder AE D P A p resents a more complicated question. I n the y ea r s since we decided Taylor

, both the Supreme Court and w e have occasionally read §§ 2254(d)(2) and (e)(1) as thoug h they w ere to be re ad tog e ther. That is,

we have read § 2254(d)(2) to requi r e an “unreasonable determination of fact” w ith § 2254(e)(1) specify ing t h a t t he
state court’s presumption of c orrec t n e s s can only be

overco m e b y clear and convincing evidence. This inconsistency is hig hlig hted in cases, such a s this one, where

we have reviewed a state court’s Batson determination using comparative juror analy sis.

F or ex a mple, in Miller-El v. Dretke

, 545 U.S. 231 (2005), the Supreme C o urt cited § 2254(d)(2) when stating that “Miller-El [could] obtain relief only b y sh o w i n g the Tex a s conclusion to be ‘an unreasonable determination of the facts in lig ht of the evidence presented i n t h e S tate court proceeding

. ’” Id. at 240. I n the nex t breath it continued, however, by c iting § 2254(e)(1) for the “presum[ ption that] the Tex as court’s factual finding s [ ar e ] sound unless [ the petitioner] r ebuts the ‘ presumption o f correctness by clear and co nvincing evidence.’” Id. (quoting 28 U .S.C. § 2254(e)(1)). I n Rice v. Col l i n s , the Court ag ain assumed that § 2254( e ) (1) qualified (d)(2). A fter quoting § 2254(d)(2), the Court stated th at “ [ s] tate-court f actual finding s, mo reover, a

re presumed correct; the petitioner has the burden of rebutt i n g the p resumption b y ‘clear a nd convincing evid e n c e

. ’ ” 5 4 6 U.S. 3 33, 338–39 (2006) (quoting 28 U.S.C. § 2254(e)(1)); see a lso Sch r i r o v. Landrigan

, 550 U.S. 465, 473–74 (2007); W iggins v. Sm i t h

, 539 U.S. 510, 528 (2003); Miller-El v. Cockrell

, 537 U.S. 3 2 2, 341–42 (2003).M U R R A Y V

. S C H R

I R O 23

The Court ag reed to a d d r e s s the relationship b etween § 2 254(d)(2) and (e)(1) in W ood v. A l l e n , 558 U .S. 290 ( 2 0 10). I ndeed, the Court stated that it g ranted certiorari t o resolve the question of “whether § 2254(e)(1) applies in every

case presenting a challeng e under § 2254(d)(2).” I d. at 300. And the Court recog niz ed that (d )( 2 ) and (e)(1) address separate kinds of challeng es. Id. at 299–300 & nn.1–2. I n the end, h owever, the Court declined to address “any interpretive difference reg arding the r elationship between these provisions

, ” and left “for another day the questions of h ow and when § 2 254(e)(1) applies in challeng es to a state court’s factual determinat i ons under § 2 254(d)(2).” Id. at 300, 304–05.

Notwithstanding the force o f Taylor

, we too h ave continued to strug g le w ith the relationship b etween §§ 2254(d)(2) and (e)(1) when reviewing state-co u r t f actual finding s under AEDPA. I n o ur en banc d e c ision in Kesser
, we criticiz ed the dissent f o r ig noring Taylor and observed that “[ b] ecause the evidence of the prosecutor’s bias is f ound in the record that was before the California Court of Appeal,

we are g overned by § 2254(d)(2) rath e r than § 2254(e)(1).” Kesser
, 465 F .3d at 358 n.1; see al s o Lambert v. Blodgett

, 393 F .3d 943, 971–73 & n.19 (9th Cir. 2004)

. A t t he same time, we further noted, however, that “[ i] n any event, the question of wh i c h AEDPA standard w e apply here may be academi c , because the record satisfies either standard.” Kesser
, 465 F .3d at 358 n.1. Our ultimate decision was consistent with this position. W e cited § 2254(d)(2) to hold that “[ o] n the b asis of the r ecord, . . . the California Court of Appeal’s conclusion that the prosecutor did not strike Rindels because she was Native America n [ was] wrong , a nd unreasonably so.” Id. at 3 68. W e continued, howeve r , b y citing § 2254(e)(1) and stating that “we th[ oug ht] the recordM U R R A Y V

. S C H R

I R O 24

so strong on this p oint that i t c annot admit any other conclusion, and e ven satisfies the more demanding standard of ‘rebutting the pres umption of correctness by clear a nd convincing evidence.’” Id.

Since Kesser
, o ur panel d e c i s i o n s appear to be in a state of confusion as to w h e t h e r § 2254(d)(2) or (e)(1), or both, applies to AEDPA r eview of state-court factual finding s. Compare, e.g. , Jamerson v. Runnels

, 713 F .3d 1218, 1227–36 (9th Cir. 2013) (citing only § 2 254(d)(2) and finding in each relevant situation that “the state was n ot unre a s o nable in finding that the prosecutor’s justification for challeng ing [ the individual jurors] was g enuine”); Hurles v. R y a n , 706 F .3d 1021, 1 038 (9th Cir. 2013) (“[ W ] e c l oak the state court’s factual finding s in a presumption of correctness. 28 U .S.C. § 2254(e)(1). However, we afford such deference only if the
state court’s fact-finding process survives our intrinsic r eview
p u r s u a n t t o A E DPA’s ‘unreasonable determinati o n ’ c l a u s e

. ” )

, with, e.g. , Thompson v. Runnels

, 705 F .3d 1089, 1091–92 (9th Cir. 2013) (“W e beg in with the facts found by the California Court of Appeal, which a re p resumed to b e correct. S ee 28 U.S.C. § 2254(e)(1).”); Cudjo v. Ayers
, 698 F .3d 7 52, 755 n.2, 762 (9th Cir. 2012) (s t a t i n g that state court facts a re “afforded a

presumption of correctness that may be rebutted only by clear and convincing evidence”); Briggs v. Grounds

, 682 F .3d 1 165, 1171 (9th Cir. 2012) (citing § 2254(e)(1) for the proposition that “[ t] he bur d en to disprove the f actual finding s rests with [ the petitioner] ”).

W e believe any

tension between Taylor a nd our cases or between Taylor and limited statements by the Supreme Court will have to b e resolv e d b y o u r court en banc, or by the Supreme Court. As we will discuss, infra

, we do not believe the difference between our two lines of cases is determinativeM U R R A Y V

. S C H R

I R O 25

in this c as e, and thus we need not resolve the apparent conflict to decide this case. W e t h u s will r eview Murray ’s challeng es to state-court finding s that are b a s e d entirely on th e record for “an unreasonable determination of the f acts.” See 28 U.S.C. § 2254(d)(2); Kesser
, 465 F .3d at 358 n.1. W e do not consider any new e vidence as to claims adjudicated on the merits by th e s t a t e court. See P inholster

, 131 S. Ct. at 1401.

B

. U n certified Issue—Motion to Expand Certificate o f Appealability

I n a ddition t o h is Batson and ineffective assistance o f counsel claims, Murray has elected to brief a n uncertified issue reg a

rding the district court’s decision to deny his “Motion for L eave to F ile a Second Amended Petition for W r it of Habeas Corpus.” As ex plaine d b e l o w , we treat M u r r a y ’s uncertified claim as a motion to ex pand the certificate of appealability (“COA”) that we previously
g ranted. Under F ederal Rule of Appe l l a te Procedure 22(b)(2), a notice of appeal constitutes a n a p plication for a COA. See Slac k v. McDaniel

, 529 U.S. 473, 483 (2000). Thus, where “a motions p anel g rants a COA in part a nd denies a COA i n p a rt,” “[ u] ncertified issues r aised a nd desig nated in [ the manner prescri b ed by Ninth Circuit Rule 22-1] will be c onstrued a s a motion to e x pand t h e COA a nd will be a ddressed by [ us] t o s u c h ex tent as [ we] d eem[ ] appropriate.” 9th Cir. R. 22-1(d)–(e).

A COA may issue in federal habeas review of s t a te proceeding s “ only if the applicant has made a subs t antial showing of the denial of a constitutional r i ght.” 28 U .S.C. § 2 2 53(c)(2); see also W ilson v. Belleque

, 554 F .3d 816, 825–26 (9th Cir. 2009). This is n ot an ex acting standard. Id.M U R R A Y V

. S C H R

I R O 26

at 826. W e w i l l “not decline the application for a COA merely b e cause [ w e] believe[ ] th e applicant will not [ ultimately ] demonstrate an entitlement to relief.” M iller-El

, 53 7 U

. S

. a t 337. Rather, w e will issue a COA “if jurists o f

r e a son would find it debatable whether the petition state s a

v a l id claim of the denial of a constitutional rig ht.” W i l s o n , 554 F .3d at 826.

I f, however, the district court

denies a ha b eas petition on procedural
g rounds witho u t reaching the prisoner’s underly ing constitutional claim, a COA should issue when

. . . jurists of reason would find it debatable whether t h e petition states a

va l i d claim of the denial of a constitutional rig ht and that jurists of r eason would find i t debatable whether the district c o urt was correct in its procedural ruling

.

Slack

, 529 U.S. at 484 (emphasis added). “W h e r e a plain procedural bar is present and the di s trict court is correct to invoke it to dispose of the case, a reasonable jurist could not[
, however,] c onclude either that the d i s t rict court erred in d i s m i ssing the petition or that the petitioner should be allowed to proceed further.” Id.

I f both inquiries are satisfied, w e will g rant a COA. See Hoffman v. Arave
, 455 F .3d 926, 9 43–4 4 ( 9 t h Cir. 2006),

v acated in part on other g rounds b y Arave v. Ho

f f m a n , 552 U.S. 1 17 (2008); United States v. Martin
, 226 F

. 3d 1042, 1046–47 (9th Cir. 2000).M U R R A Y V

. S C H R

I R O 27

I I I . DI SCUSSI ON

A. B a tson Claim

Murray ’s primary

claim is that the state court’s denial of his Batson o bjection w as c o n t r a ry to, or involved an unreasonable application of, clearly established F ederal law,

or based upon an unreasonable determination of the facts. He raises two separate points. F irst, M u r r a y c ontends that the
state court’s failure to eng ag e in a comparative juror analy sis alone i s a n unreasonable a pplication of clearly e stablished F ederal law. Second, Murray asserts that an independent evalu ation of the voir dire transcript, application o f comparative juror analy sis, and a consideration of the fa ct that the prosecutor relied o n subjective factors “clearly a nd convincing ly ” refutes the prosecutor’s proffered race-neutral

ex p lanations for the ex ercise of the pere m ptory c halleng e s used to dismiss the two Hispanic potential jurors.

The ex erci s e o f p eremptory c halleng es on the basis o f potential jurors’ race violates the E qual Protection Clause o f the F ourteenth Amendment. B atson v. Kentucky

, 476 U.S. 79, 89 ( 1986). “Racial dis c r i mination in [ the] selection o f jurors harms not only t h e accused w hose life or liberty they

are summoned to try [
, but a lso]

. . . ex tend s b e y o n d that inflicted on the defendant and the e x cluded juror to touch the entire c o m m u n ity

. ” I

d. a t 87. B atson provides a three-step inquiry to determine if a peremptory c halleng e was based on

race:

F irst

, a defendant must make a prima facie showing that a peremptory challeng e has been

ex e rcised on the basis of race[ ; s] e cond, if that showing has been made, the p rosecution mustM U R R A Y V

. S C H R

I R O 28

offer a race-neutral basis for striking the juror in question[ ; a

nd t] hird, in lig ht of the parties’ submissions, the trial cour t must determine whether the de fe ndant has shown purposeful discrimination.

Snyder v. Louisiana , 552 U.S. 472, 476–77 (2008).

Under the first p r o n g, a defendant may rely u pon “ all relevant circumstances” when making a prima facie showing that a p rosecutor’s challeng e w as ex ercised bas e d on race. Miller-El

, 545 U.S. at 240. I f the defendant satisfies this initial burden, then the burden s h i f t s to the prosecutor. Batson ’s second prong requires the prosecutor to “g ive a clear and reasonably specific ex p lanatio n o f [ the prosecutor’s] le gitimate reasons for e x ercising the challeng e[ ] .” Batson
, 476 U.S. a t 98 n.20 (internal quotation marks omitted). That

ex p lanation need not be “ p ersuasive, o r even plausible.” Purkett v. Elem

, 514 U.S. 765, 768 (1995) ( per c u r iam) (internal quotation marks omitted). Rather, under the second
prong , “ the issue is the facial valid i t y o f the prosecutor’s

ex p lanation. Unless a discriminatory intent is inherent in the prosecutor’s ex planation, [we will deem] the reason offered [ to] be

. . . race neutral. ” Id. Only Batson ’s final step requires the trial c ourt t o judg e the persuasiveness of the prosecutor’s ex planation to determine whether the defendant has ultimately satisfied the burden of proving racial discrimination in the prosecutor’s ex ercise of p e r emptory challeng es. I

d. 2

2 A s th e Su

p rem e Co u rt h as stated :

It is n o t u n til th e t

h ird st e p th at th e p ersu asiv en ess of th e j u stif icatio n b eco m es r e lev an t —th e step in w

h ichM U R R A Y V

. S C H R

I R O 29

Arg u ably

, the third prong is the most important part of a Batson inquiry because it is a t that step that “the court has the duty to determine if the d e f endant has e stablished purposeful discrimination.” Lewis v. Lewis
, 321 F .3d 824, 830 (9th Cir. 2003) ( internal quotation mark omitted). This analy sis “turns larg e ly on the court’s evaluation of the p r o s ecutor’s credibility ,” making the trial judg e’ s o w n observations critical at this juncture. I d

. (internal q

u otation marks omitted). W hen w eig hing the persuasi v e ness of the prosecutor’s e x planation, however, a trial judg e must be conscious that “subjective factors may play a leg itimate role in the ex ercise of challeng es, [ althoug h] r eli a nce on such factors alone cannot overcome st r o n g objective indicia o f discrimination.” Kesser
, 465 F .3d at 359 (en b anc) (quoting Burks v

. Borg
, 27 F .3d 1424, 1429 (9th Cir. 1994)). A court “must evaluate the record and consider each ex planation within the contex t o f the trial as a whole because [a] n invidious d iscriminatory purpose may often be inferred from the totality of the relevant facts.” I d. ( internal quotation marks and citations omitted). The “ totality of the relevant facts”

th e trial co u rt d eterm in es w h eth er th e o p p o n en t of th e strik e h as c a r r ied h is b u rd en of p ro v in g p u rp o sef u l d iscrim in atio n

. A t th at stag e, im plau sib le o r f

an tastic j u stif i catio n s m ay (an d p ro b ab ly w ill) b e f o u n d to b e p retex ts f o r p u rp o s ef

u l d iscrim in atio n

. B u t t o s ay th at

a trial j u d g e m a

y ch o o se to d isb elieve a silly or

su perstitio u s reaso n at step th ree is q u ite d if f eren t f ro m say in g th at a trial j u d g e m u st termin a t e t h e in q u iry at step t w o w h en th e race- n eu tral reaso n is silly or

su p e r s t itio u s. T h e latter v io lates th e p rin cip le th at th e

u ltim ate b u rd en o f p ersu asio n reg a rd in g racial

m o t iv atio n rests w ith

, an d n ev er sh if ts f ro m , th e

o p p o n en t o f

th e strik e.

Pu rkett , 5 1 4 U.S. at 7 6 8 (in tern al citatio n s o m i tted ).M U R R A Y V

. S C H R

I R O 30

includes “the prosecutor’s statements about his jury selection

s trateg ies and his ex p lanations (racial and nonracial) f o r striking minority jurors. They also include the characteristics of people h e did not challeng e.” Id. at 360 (internal citation omitted). Thus, we have l o n g h eld that a comparative juror analy sis is an importa n t t o o l at the disposal of a trial o r appellate judg e for evaluating the totality of the relevant facts and “ex ploring the possibil i t y that facially race-neutral

reasons are a pretex t for d iscrimination.” Lewis
, 3 21 F

. 3 d at 830–31.

Because Murray has asserted that both sectio n s 2254(d)(1) and (d)(2) entitle him to f ederal habeas relief, we will consider each in turn.

1. Batson and Section 2254(d)(1)

Murray h as only challeng ed the state c o u r t ’ s failure to cond u c t a formal comparative juror analy sis under § 2254(d)(1). I t is not d isputed that neither the state trial
court nor the a

ppellate court undertook a formal comparative juror analy sis. Murray arg u es that c learly established F ederal law r equires state courts to conduct a for m a l c o mparative juror analy sis.

I n support of his contention, Murray predominantly relies
upon the Supreme Court’s decision in Miller-El v

. Dretke

, where the Court relied h eavily on its own thoroug h comparative juror analy sis in g ranting the pe titioner federal habeas relief. 5 45 U.S. at 240–52, 266. I n Kesser v. Cambra

, we recog n iz ed the importan c e of the Supreme Court’s decision in M

iller-El and held that “[ t] he Court’s holding

means that the principles ex pounded in Miller-El were clearly established Supreme Court law f o r AEDPA purposes at leastM U R R A Y V

. S C H R

I R O 31

by the time of the last reasoned state court decision in MillerEl

, handed down in 1992.” 465 F .3d a t 3 6 0

. Here, the relevant state-court d ecision was decided in 1995, State v

. Murray
, 906 P.2d 5 42 (Ariz

. 1995) (in banc). Therefore, the

same Supreme Court p rincipl e s we d eclared to be clearly established in Kesser

would be controlling here.

Under Murray ’s reading of M iller-El

, a sta t e court must conduct a formal comparative juror analy sis when confronting a Batson claim

. S uch a leg al error under § 2254(d)(1) would require u s to g rant a petitioner’s h abeas petition without even undertaking a comparat i v e juror analy sis o f our own. I n e f fect, Murray asks us to treat whether or not the trial court co nducted a comprehensive, formal comparative juror analy sis a s a kind of structural

error—a per se leg al requireme n t of the Equal Protection Clause o f the F ourteenth Amendment, with prejudice presumed. Miller-El did not establish any such prin c i p le o f law. Neither Batson nor the Supreme Court cases following it clearly establish that trial courts mus t co n d u ct a formal comparative a

naly sis. Batson did n ot specify the form of the trial court’s inquiry

into the p rosecutor’s motive, only that it
must “undertake a sensitive inquiry into such circumstantial and direct evidence o f i n t e nt a s may be available.” Batson
, 476 U.S. at 93 (internal quotation mark omitted). W e think it o bvious that it wo u l d b e contrary to clearly e stablished F ederal l a w

—

the “ sensitive inquiry ”—for a trial judg e to

“ r u b b e r s t a m p ” a p r osecutor’s proffered r a ce

- n e u t ra l

ex p lanation f

o r ex ercising a disputed peremptory strike. Similarly

, w e mig ht find a clear violation of Batson w here the trial judg e misstates the test or impermissibly r elies on an

erroneous factor. See, e.g. , Turner v. M arshall

, 63 F .3d 807, 814 (9th Cir. 1995), overruled on o ther g rounds b y Tolbert v

. Page
, 182 F .3d 677 (9th Cir. 1999). B ut, be y o nd theseM U R R A Y V

. S C H R

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intuitive v iolations, Batson d id not dictate the formal st eps the trial c ourt must take to evaluat e t h e prosecutor’s credibility

, it only

established that the trial court must do so.

B a t s o n and the cases that follow it do n ot require tr i al
courts to c onduct a comparative juror analy sis. Rather, what Miller-El established is that a comparative juror analy sis is an important means for federal courts to revi ew a trial court’s ruling in a B a t

son challeng e. A close look at Miller-El reveals that the Court conducted its own formal comparative juror analy sis to make f actual c o m p arisons with the state court’s f actual determinations. Thus, the Court was using a f o r m a l co m p a r a t i v e j u r o r a n a l y s i s t o r e v i e w t h e reasonableness of the factual determinations underly ing t he
state court’s decision. I f the mere failure of the state court to conduct a formal comparative j u ror analy sis had been contrary to the F ourteenth Amendment

, the Miller-El Court would have simply reversed for procedural error. B u t i t d id
not. The Court’s approach makes sense, however, when we focus on our respective roles. W e have recog niz ed that “[ w] ithout eng ag ing in c omparative juror a n a ly sis, we a re unable to review meaning fully whether the trial c ourt’s ruling
at either step o ne or step three o f Batson was unreasonable in lig ht of Supreme Court precedent.” Boyd v. Newland

, 467 F .3d 1 139, 1149 (9th Cir. 2006) (emphasis added). That is, in o r der for us to discharg e our responsi b i l ity under AEDPA to review a Batson claim under section 2 2 54(d)(2),

we o ften w i ll have to conduct a formal comparative juror analy sis, and our responsibility to conduct a co m p a r ative juror ana l y s i s is not conting ent on whether the state court previously performed or did not perform a formal comparative juror a

naly sis. W hen there has been a Batson challeng e, trial c ourts a

re not alway s situated to stop the proceeding s and conduct the k ind of formal comparative jurorM U R R A Y V

. S C H R

I R O 33

analy sis the Court conducted in Miller-El

. Often, trial courts

are well-situated to decide the question without c onducting a formal comparative juror analy sis because the trial court has had access to the juror questionnaires and has been intimately inv o lved in the jury selection process. T he trial judg e has a front-row seat in the o rchestra, making it possible for the trial
court to rule quickly on spontaneous B a t s on c halleng es. F ederal appellate courts are not similarly situated. F rom our lofty perch in the log es, where we are separated by time and distance f

rom the proceedi n gs , we must conduct a more formal comparat ive juror analy sis because it is the only

means w e will h ave for assessing the state court’s factfinding

. 3

Once we conclude th at the trial court has conducted an adequate inquiry under Batson
, our r e view must shift from § 2254(d)(1) to a review of the reasonableness o f t he state court’s f actual determinations under § 2254(d)(2). See

3 S o m e o f o u r p an el d ecisio n s m ay be read to su g g est th at a state t rial

co u rt is r e q u ired to p erf

o rm a f o rm al co m

p arativ e j u ro r an aly s is. Fo r

ex am p le, in Green v. La Ma rq u e , 5 3 2 F.3 d 1 0 2 8 (9 th Cir. 2 00 8 ), w e stated th at “ t h e trial co u rt f

ailed to u

n dertak e a s en sitiv e in q u i ry in to su ch circu m s tan tial an d d irect ev i d en ce of in ten t as m ay b e av ailab le, i n clu d in g

a co m p arativ e an aly sis o f sim i larly situ ated j u ro rs, as req u ired b y clearly estab lish ed Su

p rem e Co u

rt law at th e tim e of th e trial.” Id

. at 1 0 3 0 (in t ern al q u o tatio n m ark s o m itted ). We d o n o t th in k Green so h o l d s

. A s in Miller-El

, Green relied o n 28 U.S.C. § 2 2 5 4 (d )(2 ) an d n o t (d )(1 ). Id

. at 1 0 3 3

. T h u s , t h e b etter read in g o f Green i s th at a co m p arativ e j u ro r

an aly sis is o n e o f m an y to o l s a v ailab le to u n d ertak e su ch a “ sen sitiv e in q u iry .” See i d

. at 1 0 3 0 (“ T h e ‘ circu m s tan tial an d d irect ev id en ce’

n eed ed f o r th is in q u iry ma

y in clu d e a co m p arativ e an aly sis o f th e j u

ry v o ir d ire an d th e j u ry qu estio n n aires o f all ve n ire m em b ers.”) (em

p h asis ad d ed ). T h is read in g is in h arm o n y w ith ou r recen t h o ld in g in Ja merso n

v. Ru n n els

, 7 1 3 F.3 d 1 2 18
, 1 2 2 4 n .1 (9 th C ir. 2 0 1 3 ); see a lso C o o k v. La Ma rq u e , 5 9 3 F.3 d 8 1 0 , 8 1 6 & n .2 (9 th Cir. 2 01 0 ).M U R R A Y V

. S C H R

I R O 34

Jamerson
, 713 F .3d a t 1225–26 (9th Cir. April 24, 2 013); Cook v. LaMarque
, 593 F .3d 810, 816 n.2 (9th Cir. 2010). Thus, so long as sufficient f acts ex ist to show that a trial court has satisfied its d

uty u nder Batson ’s third step, our review is limited to § 2254(d)(2).

B e cause Murray has o nly c halleng ed the state court’s determination under § 2254(d)(1) for its failure to undertake a comparative juror analy sis and this claim is without merit,

we nex t proceed to review Murray ’s Batson claim under § 2254(d)(2).

2. Batson and Section 2254(d)(2)

The Ariz ona Supreme Court, r uling on Murray ’s Batson claim, accepted the trial court’s finding that the “prosecutor’s

reasons [were] race neutral” and h eld that the trial court did
not abuse i t s discretion by deny ing Murray ’ s Batson objection. Murray
, 906 P.2d at 557–58. The A riz o na Supreme Court’s decision does not itself discuss the evidence—by

, for ex a mple, conducting its own comparative ju r o r analy sis—it only concludes that the trial judg e’s determination as to potential j u ror Alvardo was not “wholly subjective.” I

d

. Althoug h the A riz ona Supreme Court’s decision is a ruling o n the merits of Murray ’s Batson c laim, it is n o t for o ur purposes a “reasoned decision.” Cf. Barker

v. Fleming

, 423 F .3d 1085, 1091–92 (9th Cir. 2005) (finding

a state court’s decision to b e reasoned where it “ex plained in detail why

review was denied and specifically ex amined the substance of [the individual’s] claim”). That is, the decision does not provide us with an ex planation for w hy the A riz o na Supreme Cour t determined that there was no purposeful di s crimination by the prosecutor in the e x ercise o f the perempt ory strikes ag ainst potential jurors Pethers a ndM U R R A Y V

. S C H R

I R O 35

A l v a r do; rather, the court merely stated that it accepted t h e trial judg e’s observations and “th e p r osecutor’s reasons a s

race neutral.” Murray
, 906 P.2d at 558. B ecause the A riz o na S u preme Court’s d ecision did not provide the reaso n i n g underly ing its decision finding that there was no purposeful discrimination under Batson
, we must look throug h the Ariz ona Supreme Cou r t ’ s decision to the state trial court’s decision a s the reasoned decision. See Medley v. R u n n e ls

, 506 F .3d 8 5 7
, 862 (9th Cir. 2007) (“On habeas review, we look throug h unex plained state-court decisions leaving

, in effect, the denial of post-conviction relief to the last reasoned state-court decision to address the claim at issue.”).

At trial, Murray asserted that the p rosecutor had struck the “only two Hispanic jurors which were in the p ool.” Murray then requested that the court order the prosecutor to respond. Subsequently

, the prosecutor o ffe r e d his reasons f or his

ex e r cise of peremptory c h alleng e s ag ains t potential jurors P et h e rs and Alvardo, and the trial court credited his

ex p lanation.

W i t h respect to potential juror Pethers, the p rosecutor focused on a major drug investig ati o n t hat had centered on her mother a

nd uncle. All potential jurors were asked if they knew any one who w orked f or the Mohave County Attorney ’s office, since that office was p rosecuting the Murray brothers. The scrutiny of potential juror Pethers beg an whe n she indicated that she knew B o b Moon, w ho worked for the Mohave County A ttorney ’s office, because of her mother’s

case. Potential juror Pethe rs ’ s m o ther and uncle had both spent t i m e i n jail, and even thoug h the charg es ag ainst her mother h ad been dismis sed, the prosecutor stated that he believed a deal had been neg o tiated in her mother’s c ase. The prosecutor e mphasiz e d that potential juror Pethers’s mot h erM U R R A Y V

. S C H R

I R O 36

and uncle “were heavy into drug s,” “[ b] ot h of the people around them were suspected of being in drug s,” and there was

a forfeiture acti o n p r oceeding ag ainst her mother. The prosecutor stood upon these facts to support his challeng e o f potential juror Pethers.

As for potential juror Alvardo, the prosecutor’s

ex p lanation was that he was e x cessively nice, to the point that he was indecisive. The prosecutor based this ex planation on his personal k

nowledg e from having b een socially acquainted with Alvardo.

After the prosecutor provided hi s ex planations, the trial judg e stated:

W e ll, under Batso n , o f course, the real question is whether the State g ives valid race neutral reasons for the strike, and based on the

r ecord, my own opinions about those tw o particular jurors, I

find that the reasons g iven by the Sta t e a r e sufficient. I t’s difficult to

m ak e a Batson case when y ou only have t w o

m i n o rities on the jury

, but even with the t w o I am finding that the reasons are sufficient. I don’t f ind that there was a

ny r acial reasons for the strikes, and the reasons a r e consistent with
my own assessments of t h o s e p a rticular jurors. So, the Batson objection is denied.

The trial c ourt noted that only two p otential jur o rs were inv o lved, at the same time acknowledg ing that the two comprised all of “the minorities on the jury .” The trial judg e found the reasons proffered by the prosecutor “sufficient” a nd

c ould “[ n ot] find that there was any racial reasons for t h eM U R R A Y V

. S C H R

I R O 37

strike,” and that the reasons were “consistent with [ his] own assessments of those particular ju r ors.” The trial court’s

o b servations, however b rief, are fully consistent with i t s oblig ations under B atson

.

Our o bl i ga t ions on AEDPA review, however, c annot be based on our “own assessments of those particular j u r o rs

. ” Consiste n t wi t h Miller-El

, we have to conduct our o wn comparative juror analy sis t o d e termine whether the trial court’s “own assessments” c onstitute an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2).

a. Potential J uror Pethers

On their face, the prosecutor’s proffered ex planations for his peremptory strike of potential juror P e t h ers are raceneutral. The prosecutor ex p lained that members of potential juror Pethers’s family had been prosecuted by the Mohave County Attorney ’s office, and that her mot her was still subject to a forfeiture action. Those are leg i t i m ate g rounds for ex e r c i s ing a p eremptory c halleng e. See M iller-El

, 545 U .S. at 292–93 (“The very purpose o f peremptory strikes is to allow parties to remove potential jurors whom they suspect, but cannot prove, may ex hibit a particular bias.”).

Our comparative juror analy sis supports the prosecutor’s

ex p lanation. Murr ay points to potential jurors B and E1 a s simila r ly -situated, non-Hispanic jurors whose family members were involved in ille ga l activity but who were not challeng ed. 4 T h e se potential jurors are not, however,

4 A s w e prev io u sly stated in Kesser
, w h en co n d u ctin g a co m

p a r a t i v e j u ro r an aly sis “ w e n ecessarily in clu d e in f orm atio n ab o u t j u ro rs an d v en ire

m em b ers. W h ere th ese in d iv id u als’ id en tities h av e n o t b e e n pu b liclyM U R R A Y V

. S C H R

I R O 38

similarly situated to potential juror Pethers. Potential juror B is white and served on the jury

. A t the time of jury selection, B ’s brother-in-law was being represented by Rog er W ay ne Murray ’s c ounsel b ecause h e had recently “g otten a few DUI ’s.” B stated, however, that her brother-in-law’s situation would n o t affect her ability to sit on the jury

. As for potential j u r o r E 1, h is son-in-law had been charg ed with a dru g offense. The prosecutor requested that the court question E 1 about his fe eling s reg arding the criminal justice sy stem b e fore deciding whether or not to ex ercise a perempt o r y challeng e. I n r e s p onse, E1 stated that his son-in-law’s situation had not affected his thoug hts about t h e criminal justice sy stem. I n fact, when questioned about his feeling s on

c riminal sentencing

, E1 stated that his “son-in-law was o n e that g ot off too easy .”

There are similarities between these potential jurors. All three p otential jurors h ad family members who were involved with the criminal justice sy stem. All three claimed it would not affect their ability to sit on the jury

.

The differences among the th r e e , however, a re g reater than the similarities. F irst, the relationship between a mother and a daug hter is likely to be f ar closer than that of a w oman with her b rother-in-law or a man w i t h h i s son-in-law. The affinity in t h e f

amily relation was much closer in potential juror Pethers’s case, creating a g reater risk that she mig h t be influe n c e d by her mother’s prosecution. Second, the

d issem i n ated p rev io u sly

, w e h av e ch osen to preserv e th eir p riv acy b y

w ith h o ld in g th eir n am es.” 4 6 5 F.3 d a t 3 6 2 n. 4

. Here, w e are g oin g to ref er to th ese in d iv id u als b y th e f irst letter o f th eir last n am e. In in stan ces

w h ere m o re th an o n e j u ro r’ s l a st n am e start w ith an id en t ical letter, th ey are d if f eren tiated b y

a n u m b er ( e.g

. , “ Ju ro r A 1 ” an d “ J u ro r A 2 ”).M U R R A Y V

. S C H R

I R O 39

prosecution of po t ential juror Pethers’s mother stemmed from what the p r osecutor characteriz e d as a major d rug investig ation, includ i n g a criminal forfeiture, which is a far
cry from DUI s or simple d r u g p ossession o ffenses. T h ird, potential juror Pethers h a d personally been in the county attorney ’s o ffice with reg ards to the investig ation at issue a nd her mother’s prosecution. This f ac t , along w ith the prosecutor’s statement that other people around potential juror Pethers’s m o ther were suspected of involvement,
sug g ests that the prosecutor had reason to b elieve t h at po t e n t i al juror Pethers had some a ctive interest in her mother’s case. W e nee d n ot strain to see the potential bias inhering in such a si t u a t i o n. Moreover, potential juror Pethers’s mother was c ontemporaneously subject to criminal forfeiture proceeding s that potentially had a direct economic impact on Peth ers. B y contrast, B ’s r eaction illustrates her ambivalence toward her brother-i n

- l aw’s leg al troubles— “He’s g otten a f

ew D UI ’ s l a tely .” Similarly

, E1’s spontaneous statement that his son-in-l a w g ot off too easy would tend to allay a

ny questions that t h e prosecutor mig ht have as to bias. I n sum, the prosecutor provided a persuasive, race-neutral ex planation for h is peremptory chal l en g e o f potential juror Pethers, a nd there was a reasonable basis for the state c ourt’s decision. O ur comparative juror analy sis shows that the state court’s decision reg arding potential juror Pethers was not an unreasonable determination of the facts.

b. Potential J uror Alvardo

The prosecutor’s p r offered ex planation for his strike o f potential juror Alvardo is a lso race-neutral. The prosecutor’s

ex p lanation w as b a sed solely o n his own personal acquaintance with Alvardo. Such “subjective factors [ in the prosecutor’s ex planation] may [ only ] play a leg itimate role inM U R R A Y V

. S C H R

I R O 40

the ex ercise of [ a ] challeng e[ ]

. . . [ w h ere] reliance o n such factors alone [ is not] overcome [ by ] strong objective indicia of discrimination.” Kesser , 465 F .3d at 359. Rely ing solely
upon the prosecutor’s subjective impression based u pon his social interactions with potential juror Alvardo is, admittedly

, a soft factor that is so subjective that it is difficult to dispute. The record also includes, however, the trial judg e’s personal impression of potentia l juror Alvardo based on his observation of potential juror Alvardo duringvoir dire. The trial judg e’s own impressions and o bservations are w orthy o f

a g reat deg ree of deference and p r ovide sufficient support for the pro s ecutor’s o therwise unsubstantiated ex p lanation, particularly in t h e a bsence of any contention b y Murray that potential juror Alvardo was not actually indecisive.

Murray contends that both p otential jurors E 2 and J knew the prosecutor, and the prosecutor presum a b l y thoug ht they

w e r e “nice” people, just like potential juror Alvardo. I t is
true that the prosecutor “used to be on e o f [ E2’s] paper customers w hen [ she and her kids] had [ a] paper route.” F urthermore, in the course of these interacti o n s , E 2 h ad spoken with the prosecutor “once in a while.” L ikewise, J

was the p rosecutor’s lodg e brother. E 2 and J were thus acquaintances of the prosecutor just like p o t e n tial juror A l v a r d o

. The p r osecutor d id not rely solely on hi s acqu a intance with Alvardo, however, but rather Alvardo’s indecis i v e n a t ure. There is no information in the record to sug g est that either E2 or J were indecisive. Moreover, indecisiveness is a leg itimate reason to ex ercise a p e remptory challeng e. See Brown v. Lambert

, 4 51 F .3d 946, 958 (9th Cir. 200 5 )

, reversed on other g rounds by Uttecht v. Brown
, 551 U.S. 1 (2007) (“I t was not unreasonable for the trial judg e to c onclude that

. . . J uror Z was unfit to serve becauseM U R R A Y V

. S C H R

I R O 41

of his indecisiveness, sug g e sting his i n ability to properly follow the court’s instructions and apply the law.”).

W e hold that, the state court’s d e c i s i on was not an unreasonable determination of the facts.

c. Racially

Stereoty ped L ang uag e

I n ad dition to his comparative juror analy sis c laim, Murray also makes much of the fact that the prosecutor b eg an his ex planation for his peremptory challeng es by stating that he did not believe that potential juror Pe t h e r s was Hispanic. I n this r eg ard, the prosecutor stated that he could not recall if potential juror Pethers “appeared to talk Hispanic” and noted that her maiden name, Garcia, c oul d h a ve been Spanish, a s opposed to Hispanic. Murray contends that these c omments alone, much like the circumstances underl y ing our decision i n Kesser
, raise “questions reg arding the prosecutor’s racial and cultural stereoty

pe of the Hispanic population.”

The prosecutor’s comments o n Native Am e r icans a nd others were far more troubling in Kesser than the prosecutor’s awk w a rd ex planation here. I n Kesser
, the p rosecutor “ex p lained that the Native Americans who work for the tribe

are troublesome because they are more likely to associate themselves with the culture and b eliefs of the tribe instead o f

our laws, and are li k ely to be resistive and somewhat suspicious of t h e justice sy stem.” Kesser
, 465 F

. 3d at 362 (internal quotation marks omitted). Thus, in Ke s ser , the prosecutor’s comments play ed on N ative American culture a s the p recise reason for challeng ing the juror. By t h eir very nature, such comments a re not r ace-neutral. I n Kesser
, we also noted that the prosecutor’s disc u s s i on of another potential juror was r elevant “because it indicates possi b leM U R R A Y V

. S C H R

I R O 42

racial animus and so lends support to Kesser’s arg ument that the prosecutor employ e d racial stereo-ty pes throug h out t h e jury selection.” Id. at 369 n.6. The prosecutor had mentioned th a t h e “did not consider [the potential juror] to be Native American, ‘but she was in fact brown skinned,’” althoug h the
p r o secutor could not determine by looking at her w hether “she was an [ E] a s t [ I ] ndian, a Chican[ a]
, or a [ F ] ilipin[ a]

. ” Id. Moreover, “[ a] lthoug h [ the potential juror] did not testify about her rel a tionship with h er husband, the prosecutor was convinced that ‘she was somewhat insecure and s he impressed [ him] as a woman who w ould walk two s t e p s to the left and one to the rear.’” Id. W e found that statement to “smack[ ] of racia l and ethnic stereoty pes of the subservient Asian woman.” Id.

Murray ’s situation is quite differe n t from Kesser

. Here, the p rosecutor’s statements do no t f a irly a ppear to be

c onnected with the subsequent proffered race-neutral

ex p lanation. Rather, on reflection, the p rosecutor’s statement may appear clumsy and politically incorrect, b ut the
comments fairly appear to be made to challenge the facts proffered by Murray to establish his p rima facie c a s e o f purposeful discrimination. That is, the prosecutor w a s merely

a ttempting to question whether b oth jurors were actual l y Hispanic; if they were not, then Murray would have failed to establish his p rima f

acie case. W e cannot sa y that these
statements alone prove th a t a r acial motivation was underly ing the prosecutor’s ex ercise of his p e remptory challeng es.

W e affirm the distr i c t c o u rt’s denial of Murray ’s Batson claim.M U R R A Y V

. S C H R

I R O 43

B

. Ineffective Assistance of Counsel Claim

The Superior Court of the State of A riz ona for the County of Mohave issued the only state-court decision regarding Mur r a y ’s ineffective assistance of counsel claim, so it is the only state-court d ecision that we can r eview. The d e c i s i on, however, merely concluded that Murray “fail[ ed] to r ai s e a colora b l e issue of ineffective assistance of counsel” for trial counsel’s alleg ed “[ f] ailure to properly prepare for the
ag g r avation/mitig ation hearing on the death penalty .”

Murray arg ues that the state cou r t ’ s d enial of his ineffective assistance of counsel claim violates § 2254(d)(1)

as contrary to, or an unreasonable applicati o n o f, clearly established F ederal law, and § 2254(d)(2) a s being based on

an unreasonable d e termination of the facts. Murray contends that O’Neill “failed to investig a t e and present readily

available mitig ation evidence to the sentencing court

. . . provid[ ing ] a[ n] [ in] complete picture o f M u rray ’s troubled childhood and impairments.” Murray asserts that O’Neill did
not beg in preparations for the sentencing phase until after the
g uilt phase had concluded a n d that those preparations did not include: obtaining a complete set o f his school, employ ment, medical, prison, and probation records; and interviewing

m e mbers of his immediate family or his c losest childhood friends. F inally

, Murray arg ues that O ’Neill failed to provide Dr. Potts with sufficient backg round informati o n a nd that O’Neill should have hired addi t i o n al mental health ex perts “to evaluate Murray and testify about his org anic brain damag e and other neuropsy cholog ical problems.”M U R R A Y V

. S C H R

I R O 44

1. Strickland Standard

The Six th Amendment rig ht to effective assi s t an ce o f counsel, applicable to t h e s t ates throug h the Due Process Clause of the F o urteenth A m e n d m ent, applies throug h the sentencing phase of a tri a l

. U .S. Const. amend. VI ; U.S. Const. amend. XI V, § 1; G ideon v. W a inwright

, 372 U.S. 335, 3 4 3

– 4 5 (1963); Silva v. W oodford

, 279 F .3d 825, 836 (9th Cir. 2002). The Supreme Co u rt ex plained the leg al standard f

o r a s sessing a claim of ineffective assistance o f counsel in S

trickland v. W

ashi ngton , 466 U.S. 668, 685–87 (1984). Strickland

contains two prong s:

F irst, the defendant must show that counsel’s perform ance was deficient. This requires showing that coun sel made errors so serious tha t c ounsel was n ot functioning a s the “counsel” g uaranteed the def e ndant by the Six th Amendment

. Second, the defendant
must show that the d eficient performance prejudiced the defense. This requires showing that c ounsel’s errors w ere so serious as to d eprive the defendant of a fair trial, a tria l whose result is reliable. Unless a defendant makes both showing s, it c annot be said that the conviction or d eath sentence resulted f rom

a breakdown in the adversary process t h at renders the result unreliable.

Id. at 687.

Str i ck l a n d ’s first prong r equires that “the defendant

. . . show that counsel’s repre sentation fell below an objective standard o f reasonableness.” I d. at 688. “[ T] he relevantM U R R A Y V

. S C H R

I R O 45

i nquiry

. . . is not what defense counsel could have pursu ed

, but rather whether the choices made by d efense counsel were reasonable.” B abbitt v. Calderon , 151 F .3d 1170, 1173 (9th Cir. 1998). This inquiry is “hig hly deferential” to beg in with, Strickland

, 466 U .S. at 689, and “doubly deferential” when Strickland and AEDPA “operate in tandem.” W alker

, 709 F .3d at 9 41 ( c i t i ng Richter

, 131 S. Ct. at 788) (internal quotation marks omitted).

Counsel has a “duty to make reasonable investig ations o r to make a r easonable d e c i sion that makes particular investig ations unnecessary .” Id. at 691. I n W iggins v. Smith

, 539 U.S. 510 (2003), the Supreme C o u r t clarified that the relevant i n q

uiry “is not whether counsel should have presented a mitig a t i o n c ase,” but rather, “whether the in v estig ation supporting counsel’s decision not to introduce mitig ating evidence of [ a defendant’s] backg round was itself reasonable .” Id. at 523. The Supreme Court stated that “[ i] n assessing counsel’s investig a tion, w e must conduct an objective review of their p erformanc e , measured for ‘reasonableness under prevailing professional norms,’ which includes a c ontex t-dependent consideration of the challeng ed conduct as seen ‘from counsel’s perspective a t the time.’” Id. (internal citation omitted). That is, “ [ n] o particular set o f detailed rules fo r c o unsel’s conduct can satisfactorily take

acco u n t of the variety o f c ircumstances faced b y defense counsel or the rang e of leg itim a t e decisions.” Pinholster

, 131 S. Ct. at 1406. W e must therefore beg in any ineffective assistance o f counsel inquiry “with the premise that ‘under the circumstances, the chall e ng ed action[ s] mig ht be considered sound tr i a l strateg y .’” Id. at 1404 (quoting Strickland , 466 U.S. at 689).M U R R A Y V

. S C H R

I R O 46

Strickland ’s second prong requires that “ [ t ] he defendant

. . . sho w that there is a reasonable probability that, but for counsel’s unprofessional errors, the result o f t he proceeding would have been differe nt. A reasonable probability is a probability sufficient to undermin e confidence in the outcome.” Strickland

, 466 U .S. at 694. Here, “the question is whether there is a reasonable probability that, absent the
errors, the sentencer—including an appellate court , t o the

ex tent it independently reweig hs the evidence—would have concluded th at the balance of a g g ravating and mitig ating circums t a n ce s did not warrant death.” Id. at 695; see also Rompilla v

. B eard

, 545 U .S. 374, 390 (2005) (ex amini ng Strickland ’s prej udice prong d e novo , where the state courts had never reached the issue of prejudice).

2. Application of 28 U.S.C. § 2254(d)

Murray claims that the state court’s d e cision was “contrary to, or involved an unreasona b l e application of, clearly established F e deral law” under § 2254(d)(1). H e also
arg ues that the state court’s rejection of his claim was “ based

on an unreasonable d etermination of the fact s ” u n der § 2254(d)(2). As above, be c a u s e t here is no reasoned statecourt decision, we must undertake an independent review o f the record to det e r m i n e if any reasonable basis supports the state court’s decision. See W alker , 709 F .3d at 939.

Here, Murray has attempted to supplement the state-court record with ex tri n sic evidence—affidavits, including declarations by friends and family members, a nd ex pert opinio n s relating to Murray ’s psy chiatric e valuation by Dr. Potts. None of these materials were broug ht to the attention of the state c ourts, but were first introduced before the district
court.M U R R A Y V

. S C H R

I R O 47

The onl y e v idence submitted b efore the state c ourt with respect to Murray ’s ineffective as s i s t ance of counsel claim

was testimony elicited from O’Neill during a st at e

- c ourt evidentiary hearing

. That evidence was focused, however, on O’Neill’s failure to call a Mr. Anthony as a witness, althoug h

some g ener al information was presented about O’Neill’s overall lack of e x perience in handling serious felony a nd death p enalty cases. No evidence was p resented be f o re t h e state court r e g a r ding O’Neill’s alleg ed failure to “ contact Murray ’s c losest chi l d h o o d friends

. . . and his two sisters,” hire an investig ator ex perienced in mitig ation investig ation,

or hire additional mental health e x perts. B ecause, as Murray concedes, the state c o urt decided this claim on the merits, we may only c onsider the evidence that was b efore the state court in our A ED P A review. 5 See Pinholster

, 131 S. Ct. at 1398. F urthermore, our review is l i m i t ed to whether “we [ are] convinced that an appellate panel

, apply ing the normal standards of appellate review, could not r easonably conclude that the [state court’s] finding [ s] [ ar e] supported by the record.” Taylor

, 366 F .3d at 1000.

Our independent review of the state-court record reveals the following

. As p a r t of Murray ’s pre-sentence memorandum, O’ N e i l l a ppended a number of letters a nd taped interviews with f

riends, family

, co-workers, and other
acqu ai n tances. T hese communications reveal that O’Neill beg an investig ating Murray ’s backg round and pr eparing for th e s entencing hearing long before the g uilt phase was concluded. F urther, it appea r s t hat O’Neill traveled from Ariz ona to A labama and personally interviewed ind i v i d uals

5 A lth o u g h Mu rray h as prev io u sly m ad e claim s o f in ef f ectiv e assistan ce

o f ap p ellate co u n sel, th o se claim s h av e all b een den ied an d are n ot b ef ore

u s.M U R R A Y V

. S C H R

I R O 48

acquainted with Murr a y

. W e f ind that Murray ’s contention that O’Neill failed to beg in preparations for the penalty phase prior to the conclusion of the g uilt phase is unfounded.

W ith respect t o the thoroug hness of counsel’s investig ation, a look at O’Neill’s pre-sentence memorandum reveals that she a

n d her investig ator h a d c ontacted a nd interviewed the following individuals, at least once: J oy ce Michael (ex -wife)

, Ruby B radford (aunt), H ulon Murray ( u ncle), Pete H ardee (friend a nd former co-worker), T o m Hallman (ex -employ er and family friend), Doug Price (for m er c lassmate and friend), and David L ovelace (friend). These individuals provided a wealth of information reg arding Murray ’s bac k g round. Counsel elicited information
reg arding Murray ’s urinary and fec a l incontinence and the corresponding effects those difficulties had o n him as a child, M urray ’ s p hy sically and verbally abusive childho o d

, M urray ’ s failure in school, and Murray ’s ex posure to weapons.

At Murray ’s sentencing hearing

, in addition to the p r e

sentence investig ation and memorandum, O’Neill submitted into evidence a number of letters written on Murray ’s behalf. The letters w e r e w ritten by : J ustin Murray (son), J oy ce Murray (ex -wife), B renda Murray (mother), Kenneth Murray (father), Shonna A lex ander (sist e r ), Ang ela Hall (sister), Keith Alex ander (brother-in-law), Dolphus B radford (uncle), Karrie Murray
, L eslie O’Dell, B a rbara O’Dell, and Tom a

nd Ann Morg an.

Not all of this information, however, w a s introduced throug h live testimony at t h e sentencing hearing

. O’Neill advised the trial court thatM U R R A Y V

. S C H R

I R O 49

the p eople that know my c lient, Robert M u rray , and have known him all of his lif e, don’t live in Ariz ona, they liv e 2,000 miles

a w ay o r so in Alabama. A few o f those
p e o p le are g oing to be able to come out a n d
t e s t i f y

. Most of them cannot for various

reasons.

A wealth of information was provided to the court in the best possible way O’Neill could present it in lig ht of g eog raphical and other constraints.

O’Nei l l d id have three witnesses available to testify : B renda Murra y (mother), Ang ela Hall (sister), and Ruby B radford (aunt). B ren d a Murray testified about h ow Mu r r a y ’ s father had phy sically abused him with his fists, at least a doz en times. She further detailed Murray dropping out of hig h school; working in his father’s bookie and nig ht c lub operations; being worked ex cessively by his father, e ven with

a broken collarbone; and being forced i nto a marriag e at a y oung ag e. Murray ’s a u nt, Ruby B radford, testifi e d
reg arding Murray ’s childhood u rinary and fecal incontinence and Mur r a y ’s father’s failure to have him ex amined b y a doctor even t houg h encourag e d to do so by Murray ’s
g randmother. Ruby B radford a lso testified th a t M u rray was

a withdrawn c hild. Althoug h Mur r a y ’ s sister, Ang ela Hall,

was present a

nd prepared to testify , counsel did not c all her. Nothing in the record sug g ests that she could have presented information that was not already before the cour t o r that mig ht have affected the results.

Murray ’s claims that O’Neill neg lected to interview h i s immediate f

amily memb er s a n d closest friends and only presented b i t s a n d pieces of the complete picture of his lifeM U R R A Y V

. S C H R

I R O 50

and impairments are u nsupported by the e vidence in the record. No attorney can present a complete picture of h i s client’s life. I n this case, however, O’Neill provided the state court with sufficient evidence to paint a vivid pictur e o f Murray ’s life. Murray c a

nnot point to a sing le, material piece of evidence that would have b ee n determinative at sentencing

. T hus, we find that O’Neill’s performance, in this
reg ard, did not fall b elow an objective standard o f reasonableness under Strickl a n d

, much less that the state court’s d ecision was an unreasonable application o f Strickland

.
Murray furth e r contends that O’Neill failed to obtain a complete s e t of Murray ’s school, e mploy ment, medical, prison, a n d p robation r ecords. I n particular, Murray arg ues that O’Neill did not provide sufficient ba c k g r ound information to Dr. Potts and that additional ex p er t s should have b een hired to testify reg arding orga n i c brain damag e

. Ag ain, h owever, the record belies this contention. O’Neill’s pre-sentence report contained a set of Murray ’ s prison records from Alabama. The pre-sentence i nvestig ation report included Murray ’s prior c r iminal record. L ikewise, the information presented to Dr

. P o t t s for use in conducting his mental evaluation included Murray ’s crimina l, prison, a nd school records. F urthermore, it appears that Dr. Potts personally interviewed Murray reg arding his medical history

, including previous difficulties w i th intense headaches a nd seiz ures; c onducted interviews with numerous individuals who k n ew Murray ; and had a ccess to information relating to the c rime. The record does not support a finding that O’Neill did not provide Dr. Potts with sufficient backg r ound information. F urthermore, O’ N e ill had no information that would have made resort to an a dditional ex pert necessary

. Dr. Potts w as aware of Murray ’s previous h ea daches a ndM U R R A Y V

. S C H R

I R O 51

seiz ures and d id n o t find them to be c onsequential, so there was no reason for O’Neill to inquire further.

I n sum, we find that the record does not support a finding that the state court’s d e c ision reg arding the adequacy o f O’Neill’s p erformance in conducting the mi tig ation investig ation was based on an u nreasonable determination o f the f acts or an u nreasonable application o f S trickland

. Murray can point to no evidence that would sug g est that the
state co urt’s decision was based on an unreasonable determination of fact. The record shows that O’Neill pursued dilig en t l y a number of avenues f or obtaining backg r ound evidence relevant to the mitig ating factors that c ould assist in Murray ’s sen t encing hearing

. W e affirm the district court’s denial of Murray ’s ineffective assistance of counsel claim.

C. Uncertified Issue—District Court’s D e nial of Murray’s “Motion for Leave to File a S econd Amended Motion for W rit of Habeas Corpus”

I n addition to his Batson and ineffective assistance o f counsel claims, Murray has elected t o brief an uncertified issue, arg u ing that the distri ct court abused its discretion b y deny ing his “Motion for L eav e t o F ile a Second Amended Petition for W rit of Habeas Corpus.” T hat motion contained six teen c laims—fifteen c laims that had pre v i o u sly been withdrawn and one additional new claim. 6 The district court denied M u rray ’s motion to amend because it found the proposed claims to be duplicative, frivolous, a n d f utile, a nd

6 T h e six t een claim s are n u m b ers 6
, 2 0 –2 1
, 2 3 –2 7
, 3 8
, 4 1– 4 6
, an d 4 8 in Mu rray ’ s p ro p o sed Seco n d A m en d ed P etitio n f o r a W rit o f Hab eas Co rp u s.M U R R A Y V

. S C H R

I R O 52

determined that allowing the amendment would unduly delay the proceeding s and prejudice the respondents.

Murray contends that the state court’s failure to desig nate with sufficient clarity why it did not decide Murray ’s claims

on the merits makes federal r eview appropriate, and t hat his claims are n ot futi l e

. Furthermore, Murray arg ues that the previous withdrawal o f his claims from his f ederal h abeas petition to pursue post-conviction relief in state court did not unduly del a y the presentation of his claims to the district court, particularly because the parties were the same in both state and federal court and his withdrawal of claims was not done in an effort to avoid procedural requirements.

W e decline to g rant Murray ’s motion to ex p and the COA because he has failed to make a substantia l showing o f the denial of a constitutional rig h t. The district court found that the majority of Murray ’ s proposed claims would be futile. A determination of futility contemplates whe ther, upon de

novo review, the amendment could present a viable claim on the merits f

o r w hich relief could be g ranted. See Carvalho v

. Equifax Info. Servs., LLC
, 629 F .3d 876, 893 (9th Cir. 2 010) (“W hen the district court denies le a ve to amend because o f futility of amendment, w e w i ll uphold such d enial if ‘it is clear, upon de novo review, that the complaint would not be saved by any amendment.’” (quoting Leadsin g e r , Inc. v

. BMG Music Publ’g

, 51 2 F .3d 522, 532 (9th Cir. 2 008)); Serra v. Lappin
, 600 F .3d 1191, 1200 (9th Cir. 2 0 1 0); see also Caswell v

. Calderon

, 363 F

. 3d 832, 838–39 (9th Cir. 2004). F urthermore, “ p roposed amendments [ are f utile when they ] a re either duplicative of ex isting claims o r patently frivolous.” Bonin v. Calderon

, 59 F .3d 815, 8 4 6 (9th Cir. 1995). Thus, jurists of reason would n ot find debatable thatM U R R A Y V

. S C H R

I R O 53

a futile c laim cannot be the basis for a substantial showing o f the denial of a constitutional rig ht.

Murray arg ues that the d istrict c o urt erred in d etermining that it w ould have been futile for him to amend h is h abeas petition. Murray contends that federal review is not b arred b y procedu r a l default b e c ause there is no unambig uous independent and adequate state g round. Specifically

, Murray
asserts that the state court’s decision was ambig uous because “it referenced more than o n e s t a te procedural rule in connection with more than one claim.”

The doctrine of procedural default provides that “a federal
court w il l not review the merits of claims, including constitutional claims, that a state court declined to hear because the p risoner f

ailed to a bide by a s t a t e procedural rule.” Martinez v

. Ryan
, 132 S. Ct. 1309, 1316 (2012). This doctrine is g rounded in federalism, b eca u s e federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law g r ound that is independent of the federal q u estion and adequate to support the judg ment.” Coleman v. Thompson

, 501 U

. S. 722, 726–29 ( 1991). On the other hand, “if the decision of the last
state court to which the petitioner presented his federal c laims fairly appeared to rest primarily on resolution of those claims,

or to be interwoven with those claims, and did not clearly a nd

ex p ressly r ely

on an independent and adequate state g round,

a federal court may address the petition.” Id. at 735; see also Belmontes v. Ayers
, 529 F

. 3d 8 34, 856 ( 9th Cir. 2008), rev’d

on other grounds by W

ong v. Belmontes

, 558 U.S. 15 (2009).M U R R A Y V

. S C H R

I R O 54

1. Claims 6, 21, 23–27, and 42–46

Murray ’s proposed claims 6, 21, 2 3 –27, and 42–46 were presented in a petition for p o s t -conviction relief f iled in Ariz ona state court. Each o f those claims was denied by the

s t a t e court as “precluded under Rule 32.2 of the Ariz o na Rules o f Criminal Procedure.” Rule 32.2 provides in relevant part:

a. Preclusion. A d efendant shall be precluded from relief u n der this rule based upon any g round:

(1) Raisable on direct appeal un der Rule 31 or on post-trial motion under Rule 24;

(2) F inally adjudicated on the merits on appeal or in any previ o u s collateral proceeding ;

(3 ) T h a t has been waived at trial, on appeal, or i n any previous collateral proceeding

.

Ariz . R. Crim. P. 32.2(a). W e have ex plained that

[ a] cla i m that has been found to be ‘precluded’ under subsection (a)(2) appears to be a classic ex h auste d c l aim and may therefore be subject to c onsideration in federal habeas.

. . . I n contrast, a claim that has been

‘ w a i v e d ’ u n d e r s u b s e c t i o n ( a ) ( 3 ) i s procedurally defaulted and therefore b a rred from federal court c o n sideration, absent aM U R R A Y V

. S C H R

I R O 55

s h o w i n g o f c a u s e a n d p r e j u d i c e o r fundamental miscarriag e of justice.

Poland v. Stewart
, 169 F

. 3 d 5 7 3
, 578 (9th Cir. 1999). Similarly

, the Supreme Court has recog niz ed Ariz ona Rule o f Crimina l P rocedure 32.2(a)(3) as an independent a nd ade q u a te state g round that bars federal habeas review o f constitutional claims. Stewart v. Smith

, 536 U.S. 856, 861 (2002). F or such a state procedural r ule to cons t i t u t e a n adequate sta t e g round, however, the rule must be “firmly established and consistently followed.” Martinez
, 132 S. Ct.
at 1316; Johnson v. Mississippi
, 486 U.S. 57 8
, 587–89 (1988). W e have determined that Ariz ona Rule of Criminal Procedur e 32.2(a)(3) h as been f irmly established a

nd consistently followed, and M u r r ay has not pointed to any decisions “demonstrat[ ing ] that Ariz ona has become inconsistent and irreg ular in its reliance on [ that rule] .” Ortiz

v. Stewart
, 149 F .3d 923, 9 31–32 (9t h C i r

. 1998). According ly

, Murray ’s c l a i ms have been procedurally d e f aulted a nd allowing him to amend his federal habeas petition would be f

u t i l e, reg ardless of any potential

co n stitutional merit inhering in the underly ing claims. 28 U.S.C. § 2254(b)(1)(A).

Here, Murray ’s lone arg ument is tha t t h e state court’s ruling was a mbig uous and therefore an unam big uous, independent, and a d equate state gr o u n d does not bar h abeas review. T he state court decision dismissing Murray ’s c laims in his second petition for post-conviction relief stated that the issues were “precluded under Rule 32.2 of the Ariz ona Rules of Cri m i nal Procedure.” Murray arg ues that the state court decision w as ambig uous because it failed to specify wh i ch subsection of Rule 32.2 the decision relied upon and reliance
upon Rule 32.2(a)(2) wou l d b e properly before the districtM U R R A Y V

. S C H R

I R O 56

court as an ex hausted claim. Murray is correct that the state
court did not specify which subsection of Rule 32.2 it was rely ing on, b ut we do not think that ends the discussion. The question becomes whether oth e r i n f ormation can be c onsulted
to determine if the state court clearly relied upon Rule 32.2(a)(3).

I n Coleman

, the Court observed that the V irg inia Supreme Court had g ranted a motion to dismiss the p e t i tion for appeal without stating it s re a s o ns. 501 U.S. at 740. There, the Court looked bey ond the order g ranting the motion
to dismiss and found that the “ m o t i o n was based solely on Coleman’s failure to m ee t the [ Virg inia] Supreme Court’s time requirements.” Id. The Court relied on the fact that the

u n d e r l y i n g m o t i o n o n l y d i s c u s s e d s t a t e

- l a w t i m e requirements a

n d c o n c luded that it constituted an independent and adequate state g r ound. Id. ; see a lso Poland , 169 F .3d at 578–79 (ex amining prior proceeding s t o determine whether the claims were procedurally p r ecluded). However, we have

sa id that where underly ing arg uments present mix ed
arg uments of preclusion and waiver t h e r e is no “clear[ ] a nd

ex p ress[ ] ” state bar to f

ederal r eview. Valerio v. Crawford

, 306 F .3d 742, 7 74–75 (9th Cir. 2002); Lambright v. Stewart
, 241 F .3d 1201, 1205–06 (9th C i r

. 2 001) (citing Ceja v

. Stewart , 97 F .3d 1246, 1253 (9th Cir. 1996)).

As in Coleman and Poland

, the district court looked to the petition f or post-conviction relief u nderly ing the state court’s ruling . Here is the district court’s finding :

[ A] review of [ Murray ’ s] Rule 32 p e t i t ion

re veals that, in arg uing ag ainst summary dismi s s a l

, he only addressed the reasons the W ithdrawn Claims had not been presented inM U R R A Y V

. S C H R

I R O 57

his initial Rule 32 proceeding

, i

. e. , why the claims were n ot precluded as waiv e d u nder subsection (a)(3). He did not arg ue i n state court, n or does he arg ue in this Court, that the claims had been previously adjudicated. This Court c oncludes that t h e state court’s intent
reg arding preclusion is plain, unambig uous and necessarily

rested on subsection (a)(3).

W e have reviewed Murray ’s p etition and ag ree with the district c ourt. I n his p etition, Murray ex c lusively arg u ed why Rule 32.2(a)(3) did not p reclude Ariz o n a courts from reviewing his claims. I ndeed, Murray h a s not arg ued before the state c ourt, district court, or us that h i s claims h ad previously been adjudicated. Thus, it does not “ fairly appear”
t hat the state court r elied upon Rule 32.2(a)(2). A s s u ch

, Murray ’s claims a

re procedurally d e f

a u l t ed—and amendment is futile—unless he c a

n “show[ ] cause f

o r the default a

nd prejudice from a violation of federal law.” Martinez
, 132 S. Ct. at 1316. Murray has not, however, attempted to show

cause and prejudice, even thoug h he wa s gi v en the opportunity to do so by the distr i c t court. Since Murray has
not shown cause and prejudice, proposed claims 6, 21, 23–27, and 42–46 are procedurally defaulted a n d amendment would be futile. W e therefore a gr ee with the district c ourt that reasonable jurists would not find it debatabl e t h at these proposed claims do not set forth a substantial showing of the denial of a c on s t i t utional rig ht. We decline to ex pand the COA with respect to these claims.

2. Claims 38 and 41

M u rray ’s proposed claim 38 was also presented i n a petition fo r p ost-conviction relief that was filed in A riz o naM U R R A Y V

. S C H R

I R O 58

state court. Pro posed claim 38 w as also denied by the state court as “precluded under Rule 32.2 of the Ariz ona Rules of Criminal Procedure.” As such, Murray ’s proposed c laim 38 is procedurally defaulted for the same reason as claims 6, 21, 23–27, and 42–46 above.

L ikewise, Murra y ’s proposed claim 4 1 is also procedurally defaulted. Murray failed to present p r oposed claim 41 to the state court and, like the claims d i s c ussed above, it is b arred by Ariz on a Rule o f Criminal Procedure 32.2(a)(3). A claim is still barred by procedura l d e f a ult if “the co u r t t o which the petitioner would be required to present his claims in order to meet the ex haust i on requirement would now find the claims procedurally barred.” Coleman , 501 U.S. at 735 n.1.

Since both claims 38 and 41 have been procedurally defaulted, Murray can raise these cla i ms on habeas r eview only if he can show c ause and prejudice. S e e Martinez
, 132 S. Ct. at 1316. W ith respect to these two claims, which alleg e ineffective assistance o f tria l c o u nsel, Murray has raised a Martinez claim that could p o t e n t ially satisfy the

r e quisite cause a

nd p rejudice. I n Martinez
, the Su p r e m e Court stated that “[ w] here, u n d e r state law, claims o f ineffective assis t a nce of trial counsel must be r aised in an initial-review collateral proceeding

, a procedural default will
not bar a federal habeas c ourt from hearing a s u b stantial claim o f ineffective assistance at trial if, in the initial-review collateral proceeding

, there was no counsel or counsel in that proceeding was ineffective.” 132 S. Ct. at 1320 (emphasis added). As in Martinez
, Murray alleg e s that he co u l d not have broug ht his ineff

ec t i v e a ssistance of trial counsel claims—claims 3 8 and 41—in his initial petition for s t a te post-conviction relief. Murray a sks that th i s case beM U R R A Y V

. S C H R

I R O 59

remanded to for the district court to determine whether he can establish cause and prejudice to overcome hi s p r o cedural default.

Martinez cannot establish cause for Murray because he
cannot show a “substantial claim” o f ineffective assistance o f trial counsel. Sexton v. Cozner
, 679 F

. 3d 1150, 1157–58 (9th Cir. 201 2 )

. M urray ’s p roposed claim 38 is based upon O’Neill’s alleg ed failure to secure e x p e r t s to discredit the State’s witnesses at trial. A s we sta t e d a bove, under Strickland

, to establish an ineffective assistanc e o f counsel claim Murray must show (1) deficient performance a nd (2) prejudice. S t r i ckland

, 466 U.S. at 687. Murray alleg e s that a number of ex perts could have potentially discredited various o f the state’s witnesses: O ’Neill relied on Rog er W a y ne Murray ’s ex pert witness who the jurors laug hed at d u ring his cross-ex amination; O’Neill did not call a n ex p er t to testify as to the proper methodolog y o f collecting evidence; O’Neill did not retain a d octor to testify about Murray ’s preex isting ankle injury that may have dis c r e dited the State’s footprint e vidence; O’Neill d id not r etain an e x pert to determine the identification of t he unidentified fing erprints that were found at the crime scene; O’Neill did not retain an

ex p ert to determine the identifica tion of the unidentified fing erprints on the weapons u sed in the shooting ; O’Neill did
not retain a DNA ex pert to a naly ze the blood at the scene; a nd O’Neill did not retain a blood splatter ex pert to ex p lain how the victims’ blood may

have g otten on Murray ’s clothes.

I nitially

, we note that many o f t h ese decisions a re likely
to have been strateg ic in nature, requiring us to provide trial counsel w ith g reat deference. S trickland

, 466 U.S. at 690. Reg ardless, Murray cannot e s t a b lish prejudice. As we have
recount ed in the facts, the evidence a g ainst Murray wasM U R R A Y V

. S C H R

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overwhelming

. The e v idence presented b y the State a t trial

s h o wed that the spent twelve-g aug e shotg un shells found i n Murray ’s pants’ pocket and a t the crime scene were fired b y the twelve-g a

ug e shotg un recovered from the vehicle Murray

was driving

. Each of the v ictims had suffered a shotg un blast
t o the head; the blood on Murray ’s shirt could have only come from the victims. F u rther, Murray was found with the victim’s couch cushion which contained rolled coins stamped

“ D e a n E n terprises, G rasshopper J unction, King man, A r i zo n a , 86 4 01” and a scanner and knob from the Grasshopper J unction tow truck. I g noring the mountain of other evidence directly and indir ectly pointing to Murray ’s g uilt, this evidence alone is more than sufficient to implicate Murray in
t h e murders. Thus, even if O’Neill had offered the ex p er t s Murray claims should have been presented, the evidence was

so overwhelming that it w ou l d h a v e h ad no effect o n the jury ’s verdict. As such, Murray can n o t show that his potential Martinez claim is underpin n e d by a substantial ineffective assistance of trial counsel claim, since that claim is wholly without merit.

Murray ’s proposed ineffective assistance of trial counsel claim 41 is also based upon O’Neill’s alleg ed ineffectiveness for failing to question the trial court judg e about his views on the d eath penalty

. Murray has o ffered nothing to sug g est that the trial co u rt j u dg e possessed any bias reg arding the death penalty

.

B e cause Murray cannot rely upon Martinez to supply the

cause and prejudice for his p r o ce d ural default of proposed claims 38 a

nd 41, these claims a re also futile. W e therefore
ag r e e with the district court, and c onclude that reasonable jurists would not find it debatable that these proposed c laims fail to set forth a subs t a ntial showing of the denial o f aM U R R A Y V

. S C H R

I R O 61

constitutional rig ht. W e decline to ex pa n d the COA with respect to these claims.

3. Claims 20 and 48

The district court also denied Murray leave to amend his petition to include his proposed claim 20 based on R ing v

. Arizona
, 536 U.S. 584 ( 2002). Rely ing on Schr i r o v

. Summerlin

, 542 U.S. 348 (2004), the district court found this claim to be futile since Murray ’s direct appeal was final prior
to the Court’s decision in R ing

. See id. at 358 (holding that Ring “does n ot a

pply r e t r o actively to cases already final on direct appeal”). B ecause the d istrict court was clearly correct, proposed claim 20 is futile.

F inally

, Murra y ’s p roposed claim 48 is f u tile a s duplicative of claims already p resen t e d in his h abeas petition—c l a ims 8, 1 3
, 15–19, and 28. See Bonin v

. Calderon

, 59 F .3d 815, 846 (9th Cir. 19 9 5 )

. T h u s, none o f
t h e additional claims Murray desires to include in his
p roposed Second Amended Petition could present a v ia b l e claim on the merits for which rel i e f c o uld be g ranted. See Carvalho , 629 F .3d at 892–93.

B e cause jurists o f reason w ould not find debatable that Murray has failed to s e t f orth a substantial showing of the denial o f a constitutional rig ht, we d eny his motion to ex pand the COA.

I V. CONCL U SI O N

F or the foreg o ing r easons, the d i strict court properly denied Murray ’s petition for the writ o f habeas corpus. The judg ment of the district court is AF F IRMED

.