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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Ronald Kelly Young,

Petitioner, 

v.

Ryan Thornell, et al.,

Respondents. 

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No. CIV 18-036-TUC-CKJ 

ORDER

On December 6, 2023, Magistrate Judge Maria S. Aguilera issued a Report and

Recommendation ("R & R") (Doc. 107) in which she recommended the Amended Petition

under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 93)

filed by Ronald Kelly Young ("Young") be denied and dismissed with prejudice. Young has

filed Objections to the R & R ("Objections") (Doc. 110), and Respondents have filed a

Response (Doc. 111).

I. Report and Recommendation

This Court "may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C.

§ 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then

this Court is required to "make a de novo determination of those portions of the [report and

recommendation] to which objection is made." The statute does not "require [] some lesser

review by [this Court] when no objections are filed." Thomas v. Arn, 474 U.S. 140, 149-50,

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(1985). Rather, this Court is not required to conduct "any review at all . . . of any issue that

is not the subject of an objection." Id. at 149. 

Moreover, under Fed.R.Civ.P. 72(b), a district court may adopt those parts of a

magistrate judge's report to which no specific objection is made, provided they are not clearly

erroneous. Thomas v. Arn, 474 U.S. 140, 151-153 (1985); United States v. Reyna-Tapia, 328

F.3d 1114, 1119 (9th Cir. 2003). Young requests the Court conduct a "de novo review of the

issues raised in the R&R." Objections (Doc. 110, p. 2). Young states he will discuss specific

objections, but otherwise "stands on his prior briefing in this case." Id. 

No specific objections have been made to the background section of the R & R. The

Court adopts those facts. 

II. 28 U.S.C.§ 2254 – Standard of Review

Federal courts may consider a state prisoner's petition for habeas relief only on the

grounds that the prisoner's confinement violates the Constitution, laws, or treaties of the

United States. See Reed v. Farley, 512 U.S. 339, 347 (1994). Indeed, a habeas corpus

petition by a person in state custody:

shall not be granted with respect to any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of the claim (1) resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States; or (2) resulted

in a decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 412 (2000). General

improprieties occurring in state proceedings are cognizable only if they resulted in

fundamental unfairness and consequently violated a petitioner's Fourteenth Amendment right

to due process. See generally, Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

This Court must review claims consistent with the provisions of the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"). "The Act limits the ability of federal

courts to reexamine questions of law and mixed questions of law and fact." Jeffries v. Wood,

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114 F.3d 1484, 1498 (9th Cir. 1997). Indeed, the AEDPA creates "an independent, high

standard to meet before a federal court may issue a writ of habeas corpus to set aside statecourt rulings." Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014

(2007), citations omitted. This Court may only overturn a state court finding if a petitioner

shows by clear and convincing evidence that the finding was erroneous. See 28 U.S.C. §

2254(e)(1). An "unreasonable application of clearly established law" exists if the state court

identified the correct governing legal principle from Supreme Court decisions but

unreasonably applied that principle to the facts of the case. See Taylor; R & R (Doc. 107,

p. 4). 

III. Objections to Report and Recommendation 

Young asserts the Magistrate Judge erred in determining the claim of pre-indictment

delay in the Second Amended Petition (Doc. 93) did not rest on the same operative facts as

the claim in the timely original Petition, thereby concluding the claim is untimely, and

determining the claim fails under 28 U.S.C. 2254(d). Young also objects to the

determination the claim regarding the jailhouse snitch testimony is unexhausted and fails de

novo review. Further, Young objects to the Magistrate Judge's conclusion that there is no

clearly established law regarding whether the admission of a defendant's other acts would

violate due process and that the state court's admission of the other act evidence relied on an

interpretation of facts that was unreasonable. Young asserts the Magistrate Judge erred in

concluding Young's sufficiency of the evidence claim is untimely because it does not share

the same operative facts as Young's timely original claim of newly discovered evidence;

further the Magistrate Judge erred in concluding the claim failed under § 2254 because the

state court's determination sufficient evidence supported by the verdict was not an

unreasonable application of federal law. Young also objects to the recommendation Young's

juror bias claim fails because clearly established federal law does not guarantee a defendant

a jury free of bias. Rather, Young asserts the Sixth Amendment unquestionably guarantees

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1Young also repeats his claims from the Amended Petition that counsel failed to seek

DNA testing of the bomb fragments and a fingerprint comparison of prints found on Gary

Triano's car and failed to withdraw because of a conflict of interest. However, Young has

not specifically objected to the R & R as to these claims.

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a criminal defendant a fair trial by a panel of impartial, indifferent jurors.

Additionally, Young objects to the Magistrate Judge's conclusion regarding the

alleged ineffective assistance of Young's counsel. Young asserts counsel failed to investigate

and present evidence that Young was in California around the time of the bombing and failed

to interview witnesses who were at the scene of the bombing.1 Young also objects to the

Magistrate Judge's recommendation that Young's Brady v. Maryland, 373 U.S. 83 (1963),

claim as to (1) third-party culpability evidence concerning Neil McNeice ("McNeice") and

(2) bank records showing Young and Phillips had a legitimate business relationship prior to

1997 does not merit habeas relief. Lastly, Young objects to the conclusion of the Magistrate

Judge that Young has not presented sufficient evidence of actual innocence such that he

entitled to pass through the actual innocence gateway as set forth in Schlup v. Delo, 513 U.S.

298 (1995). 

IV. Pre-Indictment Delay

A. Timeliness of Claim

Young asserts the Magistrate Judge erred in determining the claim of pre-indictment

delay in the Second Amended Petition (Doc. 93) did not rest on the same operative facts as

the claim in the timely original Petition. A petitioner can avoid the time bar of the AEDPA

if an amendment made after the statute of limitations has run "relates back to the date of the

original pleading," Walden v. Shinn, 990 F.3d 1183, 1202 (9th Cir. 2021), quoting

Fed.R.Civ.P. 15(c)(1)(B). Such amendment must assert "a claim . . . that arose out of the

conduct, transaction, or occurrence set out – or attempted to be set out – in the original

pleading." Id. The Ninth Circuit Court of Appeals has stated:

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Claims brought in an amended petition for a writ of habeas corpus relate back to the

original petition if they arise out of "a common 'core of operative facts' uniting the

original and newly asserted claims." Mayle v. Felix, [545 U.S. 644, 659 (2005). "An

amended habeas petition . . . does not relate back . . . when it asserts a new ground for

relief supported by facts that differ in both time and type from those the original

pleading set forth." [Id. at 650].

Schneider v. McDaniel, 674 F.3d 1144, 1150 (9th Cir. 2012).

Young asserts the core operative facts of his pre-indictment delay claim are the "dates

of the crime and indictment, and what happened during the delay" and his original Petition

"contains a significant amount of factual development describing in detail what law

enforcement did in the twelve years between [the victim's] death and [Young's] indictment."

Objections (Doc. 110, p. 1), Petition (Doc. 1, pp. 14-19). He asserts his original claims in

the Petition set out the same core operative facts required to support his pre-indictment delay

claim. 

The Magistrate Judge stated:

The operative facts underlying [Young's] amended claim are that the state delayed in

seeking an indictment, and that the delay was unjustified and prejudiced his defense.

See United States v. Lovasco, 431 U.S. 783, 790 (1977). [Young's] original claims

were based on different operative facts, so his amended claim does not relate back.

[Young] raised six claims in his original petition.1 He alleged that he was denied due

process when the state trial court (1) refused to grant a new trial based on new DNA

and third-party culpability evidence, (2) refused to grant a new trial based on juror

bias, and (3) admitted certain evidence at trial. He also alleged that (4) his trial

counsel were ineffective for not discovering certain evidence, for failing to present

an identifiable defense at trial, and for not hiring an expert to testify at trial. These

claims involved actors other than the state, and they were based on acts or omissions

that occurred after [Young] was indicted. They do not concern preindictment delay

or the effect of delay on [Young's] defense, so they cannot serve as a basis for relation

back. See Walden v. Shinn, 990 F.3d 1183, 1203 (9th Cir. 2021) (holding that the

petitioner's amended claim did not relate back because the original claims involved

different actors, alleged errors, and time periods).

1

[Young] technically raised five "grounds" for relief. The Court discerns six

distinct claims within those five grounds.

[Young] also alleged that (5) the state failed to disclose exculpatory evidence

concerning his financial dealings with Pamela Phillips. While this claim concerns

alleged misconduct by the state, the state's failure to satisfy its disclosure obligations

is a post-indictment event that has nothing to do with preindictment delay. Finally,

[Young] alleged that (6) the police obtained evidence in violation of the Fourth

Amendment, and that he was denied due process when that evidence was used against

him at trial. The disputed searches and seizures occurred during the alleged delay, but

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the occurrence of delay is not a core operative fact supporting [Young's] claim that

the police violated the Fourth Amendment. These claims also cannot serve as a basis

for relation back. See Schneider v. McDaniel, 674 F.3d 1144, 1151 (9th Cir. 2012)

(holding that while the new and original claims shared one fact in common, that was

"not sufficient to conclude that they ar[o]se out of a common core of operative facts").

R & R (Doc. 107, p. 5).

The Magistrate Judge determined the "background facts that could have supported a

claim of pre-indictment delay were not the operative facts of [Young's] original claims, so

they do not provide a basis for relation back." Id. at 6. Indeed, it is not sufficient that an

amended claim relies on facts that coincidentally were included in the original claim, but they

must be the operative facts. Id.; see also Ross v. Williams, 950 F.3d 1160, 1168 (9th Cir.

2020) (en banc). Rather:

An amended petition "does not relate back . . . when it asserts a new ground for relief

supported by facts that differ in both time and type from those the original pleading

set forth." [Citation omitted.] Instead, the Court held, both petitions must "state

claims that are tied to a common core of operative facts." [Citation omitted.]

Ross, 950 F.3d at 1166, quoting Mayle, 545 U.S. at 650, 644. Moreover, "[i]f an exhibit to

the original petition includes facts unrelated to the grounds for relief asserted in that petition,

those facts were not 'attempted to be set out' in that petition and cannot form a basis for

relation back." Ross, 950 F.3d at 1168.

Young asserts the dates of the crime and indictment, as well as what occurred during

the delay, are the core operative facts of his pre-indictment delay claim. He further asserts

the original Petition contains significant factual development describing in detail what law

enforcement did in the twelve years between the victim's death and Young's indictment.

Similarly, the Magistrate Judge determined the government's purported unjustified delay in

seeking an indictment and its alleged prejudice to Young's defense are the operative facts

underlying Young's amended claim. However, as discussed by the Magistrate Judge, these

"core operative facts" of the amended claim are not core operative facts of the original

claims. In other words, both the original Petition and the Amended Petition do not "state

claims that are tied to a common core of operative facts." Mayle, 545 U.S. at 644. 

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Further, Young's original Petition listed pre-indictment delay as a ground that had

been raised before the state appellate court. Petition (Doc. 1, p. 2). While Young included

(and thoroughly discussed) in his original petition other grounds listed that had been raised

by the state appellate court, Young did not include (or discuss) the pre-indictment delay in

his original petition. There is no basis to conclude the attachment of the Arizona Courts of

Appeals opinion, which included a discussion of the pre-indictment delay claim, constituted

an attempt to include a pre-indictment delay claim. In fact, where "an exhibit to the original

petition includes facts unrelated to the grounds for relief asserted in that petition, those facts

were not 'attempted to be set out' in that petition and cannot form a basis for relation back."

Ross, 950 F.3d at 1168. Indeed, the inclusion of pre-indictment delay as a ground raised on

appeal and the attachment of the opinion indicates Young was aware of this possible issue,

but declined to include it in his request for § 2254 relief. Even liberally construed because

Young filed the original Petition pro se, Johnson v. Reagan, 524 F.2d 1123 (9th Cir. 1975)

(especially where the pleader is pro se, the pleading should be liberally construed in the

interests of justice), Young's claim in the amended Petition and the claims in the original

Petition are not tied to a common core of facts. 

The Court agrees with the Magistrate Judge that the pre-indictment delay claim does

not relate back based on the facts alleged in the original Petition.

B. Pre-Indictment Delay

Even if Young's pre-indictment claim was timely, his pre-indictment claim is not

supported by clearly established federal law. See e.g. New v. Uribe, 532 F. App'x 743, 744

(9th Cir. 2013) (deferring to the state court under § 2254(d)(1) because clear test has not been

set out by case law). Initially, although Young argues otherwise, the Court agrees with the

Magistrate Judge that Young's pre-indictment delay claim is not supported by clearly

established law. For example, one court has stated, "The Ninth Circuit has recognized that

the Supreme Court has not established a definitive test for evaluating due process claims

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premised on pre-accusation delay, for purposes of federal habeas claims governed by 28

U.S.C. § 2254(d)(1)." Evans v. Santoro, No. 221CV04812SSSMAA, 2023 WL 3325946,

at *6 (C.D. Cal. Mar. 31, 2023), report and recommendation adopted, No.

221CV04812SSSMAA, 2023 WL 3322560 (C.D. Cal. May 5, 2023), citations omitted; see

also New v. Uribe, 532 F. App'x 743, 744 (9th Cir. 2013); Naposki v. Adams, No.

SACV1600391VBFAFM, 2017 WL 907606, at *6 (C.D. Cal. Jan. 30, 2017); Hoover v.

Frauenheim, No. 2:15-CV-00082-JKS, 2018 WL 1071170, at *8 (E.D. Cal. Feb. 23, 2018),

aff'd sub nom., Hoover v. Ndoh, 797 F. App'x 295 (9th Cir. 2019). 

Even if the law was clearly established, Young has not shown the state court's decision

was contrary to, or involved an unreasonable application of, clearly established federal law.

The Court of Appeals of Arizona recognized a due process violation based on pre-indictment

delay requires showing a defendant has actually been prejudiced by the delay. State v.

Young, 2 CA-CR-2010-0164, 2012 WL 642852 (Mem. Dec. 2/29/12); Answer (Doc. 26, Ex.

A). The appellate court stated:

. . . Young argues he suffered prejudice by having to defend a "wrongful death civil

suit prior to and concurrently with his criminal prosecution." He contends the state

"gained a tactical advantage by waiting until the civil case was filed . . . so that it

could learn from Young's and Phillips' answers to pleadings and discovery requests."

But he does not specify what the state learned from Young's responses or exactly how

this prejudiced him. See Broughton, 156 Ariz. at 398, 752 P.2d at 487 (no prejudice

based on mere speculation some witnesses' memories might have diminished or

earlier testing of weapon could have been exculpatory); State v. Hall, 129 Ariz. 589,

592-93, 633 P.2d 398, 401-02 (1981) (no prejudice without specification of

information lost by reason of delay), overruled on other grounds by State v. Bass, 198

Ariz. 571, 12 P.3d 796 (2000); State v. Torres, 116 Ariz. 377, 379, 569 P.2d 807, 809

(1977) (no prejudice when defendant failed to show how testimony of unavailable

witness would have helped defense).

Thus, even assuming arguendo Young did not have to prove intentional prosecutorial

delay to show a due process violation, he has not sustained his burden to show he

suffered actual prejudice from the delay. The trial court did not abuse its discretion

in denying his motion to dismiss.

Young, 2012 WL 642852 at *4.

Although Young asserts he was prejudiced because his civil wrongful death trial

occurred prior to the criminal trial, Young has not shown there was anything the government

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learned from the civil suit that prejudiced Young. Further, the death of possible alternate

suspect McNeice, which occurred during the delay, did not prevent the defense from

presenting evidence regarding this other suspect. Rather, Young generally asserts his

inability to call McNeice made it significantly more difficult for him to defend himself at

trial. However, "speculative" claims of prejudice are insufficient. United States v. Marion,

404 U.S. 307, 324–26 (1971). 

As stated by the Magistrate Judge, Young has not shown this state court decision was

contrary or an unreasonable application of clearly established federal law, which requires a

showing of actual prejudice. R & R (Doc. 107, p. 8). Young's claim fails under § 2254(d).

V. "Jailhouse Snitch" Testimony

A. Technical Exhaustion / Procedural Default

Young claims his right to a fair trial by an impartial jury and due process, U.S. Const.

amends. V, VI, XIV, was violated by the state court permitting the improper and

untrustworthy jailhouse snitch testimony. The Magistrate Judge stated:

On direct appeal, [Young] argued that [Andre] Mims "clearly perjured" himself when

he testified that Petitioner admitted to "bl[owing] that fucker up in his car." (Doc.

99-2 at 292–93, 297.) Thus, [Young] alleged that he was convicted based in part on

perjured testimony.

[Young] did not, however, allege that the prosecutor did anything wrong with respect

to Mims's testimony. He also did not cite [Napue v. Illinois, 360 U.S. 264, 269

(1959)], which would have made clear that his claim was based on prosecutorial

misconduct. While [Young] cited "due process" and the Fifth and Fourteenth

Amendments, those references were not sufficient to alert the state court to the Napue

theory; due process has many contexts, and none of the references could have been

expected to alert the state court to a claim of prosecutorial misconduct. See Gray v.

Netherland, 518 U.S. 152, 164–65 (1996) (explaining that the petitioner's case

citations did not support his specific due process theory). Lacking notice of both the

legal theory and the relevant facts, the state court did not have the opportunity to

address [Young's] Napue claim. Therefore, his claim is unexhausted. See O'Sullivan

v. Boerckel, 526 U.S. 838, 845 (1999) (stating that "the exhaustion doctrine is

designed to give the state courts a full and fair opportunity to resolve federal

constitutional claims before those claims are presented to the federal courts").

[Young] cannot return to state court to exhaust his claim. He did not raise it on direct

appeal or in his first postconviction proceeding; as such, he has waived it.

Ariz.R.Crim.P. 32.2(a)(3). His claim would also be untimely. Ariz.R.Crim.P.

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2The state appellate court stated, "Young [argued] the court's pretrial preclusion ruling

actually precluded 'any testimony where Young supposedly confesses to being responsible

for the bombing.' But the plain language of the court's ruling makes clear it was precluding

only the statement, 'I got it done.' And, in denying the motion for mistrial, the court

reiterated its reasons for precluding the statement 'I got it done' and allowing the remainder

of Mims' s testimony. Specifically, the court noted that Mims had conceded the 'got it done'

wording may not have been accurate but he had affirmed the rest of his statements . . .," No.

2 CA-CR 2010-0164, 2012 WL 642852, at *11 (Ariz.App. Feb. 29, 2012).

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32.4(b)(3)(A). Therefore, for purposes of federal review, his claim has been

procedurally defaulted. . .

R & R (Doc. 107, pp. 9-10). Arguing this claim is exhausted and not procedurally defaulted,

Young objects.

Young argues he presented this claim on direct appeal by his extensive citations "to

the trial testimony of [Andre] Mims and explain[ing] why it was improper." Objections

(Doc. 110, p. 9); further, Young referenced "due process and the Fifth and Fourteenth

Amendments." Id. However, Young argued on direct appeal that the trial court erred by

denying his motion for a mistrial after Mims testified that Young told him that he "blew that

fucker up in his car." Young's Opening Appeal Brief (Doc. 99-2, p. 69, ECF p. 293).

Although he stated "the trial court and the State erroneously considered the preclusion to

apply only to the four words "I got it done," id. at 72, emphasis added, he did not allege the

prosecutor did anything wrong with respect to Mims's testimony.2 Rather, Young argued the

statement violated a pretrial ruling of the court and the trial court erred in denying a motion

for mistrial, id. at 72-73. Further, as discussed by the Magistrate Judge, Young did not cite

Napue v. Illinois, 360 U.S. 264, 269 (1959), as a basis for his claim. Because Young did not

provide more specific allegations or citations, Young did not make clear that his claim was

based on prosecutorial misconduct. See e.g. Browning v. Baker, No. 3:05-CV-0087-

RCJ-WGC, 2013 WL 1414188, at *12 (D. Nev. Apr. 5, 2013), on reconsideration in part, No.

3:05-CV-0087-RCJ-WGC, 2013 WL 4736691 (D. Nev. Sept. 3, 2013); Lesure v. Atchison,

891 F. Supp. 2d 920, 926 (N.D. Ill. 2012). 

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The Court agrees with the Magistrate Judge this claim has not been exhausted. In

fact, as Arizona's procedural rules would now bar consideration of this claim, see

Ariz.R.Crim.P. 32.2(a)(3) and Ariz.R.Crim.P. 32.4(b)(3)(A), this claim is technically

exhausted, but procedurally defaulted. Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011);

see also Coleman v. Thompson, 501 U.S. 722, 732 (1991), holding modified by Martinez v.

Ryan, 566 U.S. 1 (2012) ("A habeas petitioner who has defaulted his federal claims in state

court meets the technical requirements for exhaustion; there are no state remedies any longer

'available' to him.").

The Court agrees with the Magistrate Judge. This claim is technically exhausted; it

is also procedurally defaulted. Smart v. Hedgpeth, 476 F. App'x 803, 804 (9th Cir. 2012)

("the claim is technically exhausted but deemed procedurally defaulted").

B. De Novo Review

Moreover, even if the Court determined this claim was subject to review, Young's

claim would fail. The appellate court stated:

The state contends Mims did not violate the trial court's order and, therefore, the

denial of the motion for a mistrial was proper. Young insists Mims did, arguing the

court's pretrial preclusion ruling actually precluded "any testimony where Young

supposedly confesses to being responsible for the bombing." But the plain language

of the court's ruling makes clear it was precluding only the statement, "I got it done."

And, in denying the motion for mistrial, the court reiterated its reasons for precluding

the statement "I got it done" and allowing the remainder of Mims's testimony.

Specifically, the court noted that Mims had conceded the "got it done" wording may

not have been accurate but he had affirmed the rest of his statements. The court also

emphasized that Young was able to cross-examine Mims about the fact he is a

convicted felon testifying in an attempt to get a benefit from the government and that

it was ultimately up to the jury to decide his credibility. The court also noted it had

afforded Young the extraordinary remedy for any error of allowing the polygraph

results. The court found there was no evidence the state knew Mims would make that

statement but that it was not materially different in substance than Mims's prior

statements, and the court concluded a mistrial was not warranted. We find no abuse

of discretion in the court's ruling.

Young, 2012 WL 642852, at *11.

 The Supreme Court has stated that "a conviction obtained through use of false

evidence, known to be such by representatives of the State, must fall under the Fourteenth

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Amendment," and "[t]he same result obtains when the State, although not soliciting false

evidence, allows it to go uncorrected when it appears." Napue, 360 U.S. at 269. Indeed, the

Court "has consistently held that a conviction obtained by the knowing use of perjured

testimony is fundamentally unfair." United States v. Agurs, 427 U.S. 97 (1976). As stated

by the Magistrate Judge:

A Napue claim has three elements: "(1) the testimony (or evidence) was actually

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

false, and (3) the false testimony was material." Reis-Campos v. Biter, 832 F.3d 968,

976 (9th Cir. 2016) (quoting Jackson v. Brown, 513 F.3d 1057, 1071–72 (9th Cir.

2008)). False testimony is material if "there is any reasonable likelihood that [it]

could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97,

103 (1976).

R & R (Doc. 107, p. 10).

Although Young argues Mims's testimony was obviously false, Am. Pet. (Doc. 93, p.

7); see also Objections (Doc. 110, p. 3), the state appellate court recognized the trial court

"noted that Mims had conceded the 'got it done' wording may not have been accurate but he

had affirmed the rest of his statements." Young, 2012 WL 642852, at *11. In other words,

the exact words may not have been stated, but the meaning behind them may have been true.

The Court agrees with the Magistrate Judge:

[Young] has not shown that Mims's testimony was false. The testimony was new and

unexpected, but that does not necessarily mean it was perjured. See United States v.

Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) ("The fact that a witness may have made

an earlier inconsistent statement . . . does not establish that the testimony offered at

trial was false."); Lambert v. Blackwell, 387 F.3d 210, 249 (3d Cir. 2004) ("There are

many reasons testimony may be inconsistent; perjury is only one possible reason.").

R & R (Doc. 107, pp. 10-11). The Court finds the state court's determination on the falsity

of the statement is not objectively unreasonable. 28 U.S.C. § 2254(d); Bell v. Cone, 535 U.S.

685, 698-99 (2002). Further, as it has not been shown the testimony was false, the Court

does not conclude the state knew or should have known the testimony was false. This is

supported by the statements of the prosecutor, as summarized by the Magistrate Judge:

. . . [Young] has not shown that the state knew or should have known that the

testimony was false. At trial, the prosecutor stated that while he was surprised by

Mims's testimony, he had no reason to believe that Mims had perjured himself. (Doc.

98-3 at 1731–33.) He explained that Mims and Young had a "trusted relationship"

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that involved many conversations; that he never understood Mim's written affidavit

to be the "sum and substance" of what Mims would testify to at trial; and that he never

had the impression that "any admissions made by Ronald Young were restricted to the

one statement I got it done." (Id. at 1729–33.) Petitioner does not explain why the

prosecutor should be disbelieved. Notably, courts have found that inconsistencies

between a witness's trial testimony and previous statements do not, standing alone,

show that the prosecutor knowingly presented false testimony. E.g., Gibson v. Beard,

165 F. Supp. 3d 286, 309 (E.D. Pa. Feb. 29, 2016). Indeed, the prosecutor here

explained that this was not his first experience "where a witness c[ame] forward with

information that was not in a previous statement, or provided in a previous interview."

(Doc. 98-3 at 1731, 1733.)

R & R (Doc. 107, p. 11).

Young also argues Mims's "false" testimony was material. However, as previously

discussed, it has not been shown the testimony was false. Additionally, the Supreme Court

has stated:

[There is a] line of cases [in] which the . . . Court has applied a strict standard of

materiality, not just because they involve prosecutorial misconduct, but more

importantly because they involve a corruption of the truth-seeking function of the trial

process. Since this case involves no misconduct, and since there is no reason to

question the veracity of any of the prosecution witnesses, the test of materiality

followed in the Mooney line of cases is not necessarily applicable to this case.

United States v. Agurs, 427 U.S. 97, 103–04 (1976). Indeed, consistent with the Supreme

Court's "'overriding concern with the justice of the finding of guilt,' [Agurs, 427 U.S., at 112],

a constitutional error occurs, and the conviction must be reversed, only if the evidence is

material in the sense that its suppression undermines confidence in the outcome of the trial."

United States v. Bagley, 473 U.S. 667, 678 (1985).

In this case, the truth-seeking function of the trial process was not corrupted. Rather:

. . . Mims's testimony, even if false, "was not material because his credibility [was]

substantially called into question throughout trial. Gentry v. Sinclair, 705 F.3d 884,

903 (9th Cir. 2013). Mims was subjected to a blistering cross-examination, during

which he contradicted himself several times. Under defense counsel's pointed

questioning, Mims admitted that Petitioner was not "detail specific," and he agreed

that he had not previously attributed the words "I blew that mother fucker up" to

Petitioner during pretrial interviews. (Doc. 98-3 at 1766–68.) Mims also conceded

that he had over 20 years left on his sentence for armed robbery, that his remaining

avenues for relief were "long shots," and that he was hoping to trade his testimony for

leniency. (Id. at 1761–65, 1773–74.) He also admitted that he had abused a previous

girlfriend, that he had prior convictions for armed robbery and bribery of a public

servant, and that he regularly violated prison rules by accepting payment for legal

services. (Id. at 1763, 1768, 1770–71.) Mims's credibility was further undermined

on the issue of his polygraph test. On cross-examination, Mims stated he was not

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aware that the test results indicated that he had attempted deception, and he denied

recalling anyone telling him that he had attempted deception. (Id. at 1754–59.) The

jury was read a stipulation, however, proving that federal agents notified Mims about

his test results. (Doc. 98-4 at 1233–34.) Petitioner's counsel reminded the jury of all

these points during closing arguments. (See id. at 1491–92 ("Andre Mims is a stone

cold liar. I have never seen in my career such a blatant liar presented by any

prosecutor. Andre Mims was a known liar before he got on the stand.").) 

R & R (Doc. 107, 11), footnote omitted.

Young asserts, however, that Gentry is inapposite because Mims's testimony was the

only direct link between Young and the charged conduct. Yet, the direct evidence the Ninth

Circuit was discussing in Gentry was as to the intent of the perpetrator of the crime, not

whether Gentry was the actual perpetrator. Further, the Ninth Circuit's inquiry was whether

there was evidence, other than the disputed evidence, of the issue. Here, there was other

evidence of Young's guilt such that "[Mims's] testimony was not needed to prove" the

question before the jury. Gentry v. Sinclair, 705 F.3d at 904. As discussed by the state

appellate court:

Young contends the evidence established only that he was blackmailing Phillips and

that no evidence connects him to Gary's murder. He contends the evidence that he

was in Tucson the summer before Gary was killed only shows that he "[was]

investigating [Gary]'s hiding assets in order to avoid paying child support on behalf

of Phillips." But the jury was entitled to draw different inferences from that evidence.

See State v. Arce, 107 Ariz. 156, 161,483 P.2d 1395, 1400 (1971) ("It was the

function of the jury to decide what reasonable inferences could be drawn from the

evidence."). . . And some of Young's own statements in his recorded conversations

with Phillips suggest he was responsible for Gary's death. In one conversation, for

example, he told her that he had "tried to help [her] on something that was . . . beyond

what anybody else in the world would probably do" and now she is "living off the

benefits of it."

Young, 2012 WL 642852, at *3. Evidence against Young included finding documents in

Young's name in a van rented by Young. Aspen Police Detective James Crowley recalled

"he had seen a map of Tucson and paperwork from [victim Gary Triano ("Triano") and codefendant Pamela Phillips's] marital dissolution among the documents in the van. The van

also contained a list of names of some of Gary's friends and family members and a note with

more identifying information about two of the people on the list, as well as evidence that in

July 1996, under an assumed name, Young had stayed in a hotel in the same area of Tucson

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where [Triano] had lived." Young, 2012 WL 642852, at *1. Additionally, evidence revealed

"that Young regularly had been receiving money from Phillips since [Triano's] death.

Specifically, Young had maintained loan amortization schedules showing payments made on

a debt of $400,000 owed to him. A forensic accountant examined that evidence, as well as

Young's and Phillips's bank statements and Federal Express shipping records, and concluded

the loan schedules were consistent with payments Phillips had been making to Young out of

the proceeds of the life insurance policy. He also concluded the two had attempted to conceal

the transactions." Id.

 In such circumstances, the Court finds Mims's testimony that Young "blew that

fucker up in his car[,]" id. at *10, is not material. Young is not entitled to habeas relief on

his Napue claim.

VI. Other Act Evidence

A shotgun with a modified, shortened barrel was found within the van rented by

Young. "At trial, the state argued that [Young] shortened the barrel to make it more

concealable and suggested that [Young] intended for the shotgun to be a backup means of

killing Triano if the bomb should fail." R & R (Doc. 107, p. 12). Young objects to the

Magistrate Judge's conclusion that there is no clearly established law regarding whether the

admission of a defendant's other acts would violate due process and that the state court's

admission of this other act evidence relied on an interpretation of facts that was

unreasonable.

The Arizona Court of Appeals determined it did not need to decide:

whether the admission of the evidence was proper and under what specific ground

because, even if error, its admission was harmless. First, the jury heard evidence

Young had a gun in his possession when he was arrested in Florida. Consequently,

even if, as Young argues, the evidence was not relevant and only used to show his

character trait of possessing a gun, the evidence was cumulative in that regard. See

State v. Shearer, 164 Ariz. 329, 339–40, 793 P.2d 86, 96–97 (App.1989) (finding

harmless error when challenged evidence cumulative to, and consistent with, properly

admitted evidence). Second, as stated above in the discussion about the sufficiency

of the evidence, there was substantial other evidence Young committed the crimes.

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Therefore, the state established beyond a reasonable doubt the shotgun evidence "did

not contribute to or affect the verdict." State v. Valverde, 220 Ariz. 582, ¶ 11, 208

P.3d 233, 236 (2009). Young is not entitled to relief on this ground.

Young, 2012 WL 642852 at *8.

Young argues that, contrary to the Magistrate Judge's conclusion that "there is no

clearly established law that addresses whether the admission of a defendant's . . . prior bad

acts would violate due process[,]" Ninth Circuit case law recognizes improper admission of

other act evidence may violate due process. Objections (Doc. 110, p. 4), citing McKinney

v. Rees, 993 F.2d 1378, 1384 (9th Cir. 1993) ("The admission of this [other act] evidence,

therefore, could have violated due process."); Demetrulias v. Davis, 14 F.4th 898, 907 (9th

Cir. 2021) ("The admission of character evidence violates due process only if there are no

permissible (i.e., non-propensity) inferences that the jury may draw from the evidence and

the evidence was of such quality as necessarily prevents a fair trial."). However, "[f]or

purposes of § 2254(d)(1), "clearly established Federal law" includes only the holdings, as

opposed to the dicta, of the Supreme Court's decisions, Pizzuto v. Yordy, 947 F.3d 510, 525

(9th Cir. 2019), quoting White v. Woodall, 572 U.S. 415, 419 (2014). citing purposes of 28

U.S.C. § 2254(d)(1), as of the time of the relevant state-court decision. Yarborough v.

Alvarado, 541 U.S. 652, 660–61 (2004). The authority relied upon by Young is dicta. As

such, it does not constitute clearly established federal law. Kipp v. Davis, 971 F.3d 939, 951

n.8 (9th Cir. 2020).

Moreover, even if federal law had clearly established Young's claim, the state

appellate court did not decide whether the admission was proper. Rather, it determined the

admission was harmless. As discussed by the Magistrate Judge, the state court utilized a

harmless beyond a reasonable doubt standard, which is the same as the federal harmless error

standard. Johnson v. Williams, 568 U.S. 289, 301 (2013). In such circumstances, the Court

concludes the appellate court's decision that the shotgun evidence was cumulative and, in

light of the substantial other evidence of Young's guilt, was not contrary to, or involved an

unreasonable application of, clearly established federal law. 

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3The Court notes the original Petition included a statement that a sufficiency of

evidence claim had been presented to the appellate court. Petition (Doc. 1, p. 2). In other

words, Young was aware there was arguably a sufficiency of evidence claim, but did not

state one in the original Petition.

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VII. Sufficiency of Evidence

A. Timeliness

Young objects to the Magistrate Judge's conclusion this claim is untimely because it

does not share the same operative facts as Young's timely original claim of newly discovered

evidence. In his original claim, Young asserted that newly discovered evidence – testing

revealed his DNA was not on bomb fragments recovered from the scene of the murder – and

the trial court's refusal to grant an evidentiary hearing, post-conviction relief, or a new trial

violated his due process rights. His original Petition also included claims that the trial court

violated his due process rights by refusing to grant a new trial based on juror bias and

admitting certain evidence at trial. Young's Petition also included claims his counsel were

ineffective prior to and during trial, the state unlawfully withheld exculpatory evidence, and

the police obtained evidence in violation of the Fourth Amendment.3 

In his original Petition, Young asserted, "At the onset, it must be noted that there was

absolutely no direct evidence tying Young either to the bomb or to being in Tucson on or

around 11-01-96." Petition (Doc. 1, ECF p. 30 of 114). The original Petition also discussed

information gleaned during the investigation. However, Young did not discuss the evidence

presented at trial or argue that any circumstantial evidence presented was insufficient to

support his conviction.

While Young's claim of ineffective assistance of counsel prior to and during trial was

based in part on what occurred during trial, Young did not discuss the evidence presented at

trial or suggest that it was insufficient to support his conviction. Additionally, Young's claim

the trial court erred in admitting certain evidence at trial, the core operative facts underlying

that claim is that the evidence was inadmissible, while the core operative facts of Young's

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sufficiency of the evidence claim are the testimony and exhibits presented at Young's trial.

See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Maquiz v. Hedgpeth, 907 F.3d 1212, 1217

(9th Cir. 2018), citation omitted (After Jackson v. Virginia, 443 U.S. 307 (1979) a § 2254

habeas petitioner must show, "after viewing the evidence [in the state trial] in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt."); Deegan v. Warden, High Desert State Prison, No.

217CV0604MCEACP, 2020 WL 2539187, at *4 (E.D. Cal. May 19, 2020), report and

recommendation adopted, No. 217CV0604MCEACP, 2020 WL 5658669 (E.D. Cal. Sept.

23, 2020) (new claims derived from conduct that occurred at sentencing, while the original

claims relate to conduct that occurred at trial); Looney v. Swarthout, No. CV 15-08201-AS,

2017 WL 10560479, at *8 (C.D. Cal. Aug. 24, 2017) (|Indeed, these two claims arise from

distinct actions taken by different actors at different points in time, namely, the prosecutor's

actions with respect to evidence prior to and at trial, and the sufficiency of the evidence

presented at trial to support Petitioner's convictions.").

Additionally, although Young attached the appellate court decision, its discussion of

the sufficiency of the evidence included "facts unrelated to the grounds for relief asserted in

[Young's original] petition[;] those facts were not 'attempted to be set out' in that petition and

cannot form a basis for relation back." Ross, 950 F.3d at 1168, citation omitted.

The Court agrees with the Magistrate Judge that Young's sufficiency of evidence

claim does not relate back to the original petition and this claim is untimely.

B. Review of Sufficiency of Evidence Claim

Even if the Court determined this claim was timely, Young would still not be entitled

to relief. Young objects to the Magistrate Judge's determination he has not shown the state

court's decision was contrary to, or involved an unreasonable application of, clearly

established federal law. Evidence is sufficient if "any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319.

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Indeed:

[Jackson] makes clear that it is the responsibility of the jury—not the court—to decide

what conclusions should be drawn from evidence admitted at trial. A reviewing court

may set aside the jury's verdict on the ground of insufficient evidence only if no

rational trier of fact could have agreed with the jury. What is more, a federal court

may not overturn a state court decision rejecting a sufficiency of the evidence

challenge simply because the federal court disagrees with the state court. The federal

court instead may do so only if the state court decision was "objectively

unreasonable." Renico v. Lett, [559 U.S. 766, 773](2010) (internal quotation marks

omitted).

Cavazos v. Smith, 565 U.S. 1, 2 (2011).

Young cites to Juan H. v. Allen, 408 F.3d 1262, 1277 (9th Cir. 2005), amended, No.

04-15562, 2005 WL 1653617 (9th Cir. July 8, 2005), to argue the "Ninth Circuit has warned

against permitting convictions supported wholly by circumstantial evidence to stand under

the Jackson standard." However, in Juan H., the Ninth Circuit did not determine a case

based solely on circumstantial evidence was impermissible. Rather, the court determined the

circumstantial evidence presented at trial in Juan H. did not raise reasonable inferences that

supported the conviction. Juan H., 408 F.3d at 1277–78. However, the Ninth Circuit has

also determined:

"Circumstantial evidence and inferences drawn from it may be sufficient to sustain

a conviction." United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir.), amended on

denial of reh'g, 798 F.2d 1250 (9th Cir.1986), cert. denied, 489 U.S. 1032, 109 S.Ct.

1169, 103 L.Ed.2d 227 (1989). Nevertheless, "mere suspicion or speculation cannot

be the basis for creation of logical inferences." Id.

Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). This is similar to the Arizona law

applied by the appellate court in this matter: "[Our supreme court has held that 'the probative

value of direct and circumstantial evidence are intrinsically similar; therefore, there is no

logically sound reason for drawing a distinction as to the weight to be assigned each.'"

Young, 2012 WL 642852 at * 2, quoting State v. Harvill, 106 Ariz. 386, 391 (Ariz. 1970).

Unlike in Juan H., the circumstantial evidence presented in this case raised reasonable

inferences from which "any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319. The appellate court stated:

And here, there was sufficient evidence from which the jury could have found Young

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first conspired with Phillips to kill Gary and then carried out the killing.

Young contends the evidence established only that he was blackmailing Phillips and

that no evidence connects him to Gary's murder. He contends the evidence that he

was in Tucson the summer before Gary was killed only shows that he "[was]

investigating [Gary]'s hiding assets in order to avoid paying child support on behalf

of Phillips." But the jury was entitled to draw different inferences from that evidence.

See State v. Arce, 107 Ariz. 156, 161, 483 P.2d 1395, 1400 (1971) ("It was the

function of the jury to decide what reasonable inferences could be drawn from the

evidence."). Moreover, a fellow inmate testified that Young had confessed to killing

Gary. And some of Young's own statements in his recorded conversations with

Phillips suggest he was responsible for Gary's death. In one conversation, for

example, he told her that he had "tried to help [her] on something that was . . . beyond

what anybody else in the world would probably do" and now she is "living off the

benefits of it." There was sufficient evidence, both circumstantial and direct, from

which a reasonable jury could have concluded Young conspired to commit, and then

committed, the murder.

Young, 2012 WL 642852 at *2–3.

 "Jackson leaves juries broad discretion in deciding what inferences to draw from the

evidence presented at trial, requiring only that jurors 'draw reasonable inferences from basic

facts to ultimate facts.'" Coleman v. Johnson, 566 U.S. 650, 655 (2012), per curiam. "[T]he

only question under Jackson is whether [the jury's] finding was so insupportable as to fall

below the threshold of bare rationality."). Id. at 656. The Magistrate Judge summarized the

evidence against Young and determined "a rational juror could have found that the agreement

was for [Young] to kill Triano." R & R (Doc. 107, p. 17). Further, "a rational juror could

have found that [Young] carried out the killing, and that he did so with premeditation." Id.

at 18. The Court agrees with this summary and conclusions. Although, the "evidence against

[Young] was almost entirely circumstantial, [] it was extensive. Viewing it in the light most

favorable to the prosecution, it was not objectively unreasonable for the state court to hold

that a rational juror could have found [Young] guilty of first-degree murder and conspiracy

to commit first-degree murder." Id. 

 This Court finds the state courts' determination that sufficient evidence was

presented from which rational jurors could have determined Young was guilty beyond a

reasonable doubt was not objectively unreasonable. 28 U.S.C. § 2254(d); Bell v. Cone, 535

U.S. 685, 698-99 ((habeas court is not to make its own independent judgment, but is to

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determine whether state court applied federal authority in an objectively unreasonable

manner).

VIII. Juror Bias

Young objects to the Magistrate Judge's conclusion that Young's juror bias claim fails

because clearly established federal law does not guarantee a defendant a jury free of bias.

Rather, Young asserts the Sixth Amendment unquestionably guarantees a criminal defendant

a fair trial by a panel of impartial, indifferent jurors.

In his Amended Petition, Young argued that, not only is a juror's actual bias sufficient

to taint a trial, United States v. Allsup, 566 F.2d 68, 71 (9th Cir.1977), but also that bias may

be implied or inferred bias in extraordinary circumstances. McDonough Power Equipment,

Inc. v. Greenwood, 464 U.S. 548, 556-57 (1984) (Blackmun, Stevens, and O'Connor, JJ.,

concurring) (accepting that "in exceptional circumstances, that the facts are such that bias is

to be inferred"). As summarized by Young, one of the jurors:

responded on his questionnaire that he had never been convicted of a crime. ROA

340. He remained silent when asked if a family member had been convicted of a

crime. 2/22/10 RT 96. And when answering the biographical questions on "the

board," he stated that "number three doesn't apply to me in any way, shape or form."

Id. at 98. "Number three" is the question of the venireperson's marital status. Id. at

97. Effectively, [the juror] stated under penalty of perjury that: 1) he had never been

convicted of a crime; 2) no family member of his had been convicted of a crime; and

3) he was not married. [The juror] not only sat on the petit jury, but he was also

elected the foreperson. 3/31/10 RT 2; 4/27/10 RT 3-4.

Petition (Doc. 93, p. 31). Young argues bias should be presumed, Dyer v. Calderon, 151

F.3d 970 (1998), and "that the state court's determination that the juror did not commit

perjury, and did not prejudice [Young], is unreasonable." Objections (Doc. 110, p. 7). 

However, the Ninth Circuit has explicitly stated "[t]here is no clearly established

federal law regarding the issue of implied bias." Hedlund v. Ryan, 854 F.3d 557, 575 (9th

Cir. 2017). Therefore, Young is not entitled to § 2254(d)(1) relief.

Moreover, assuming arguendo clearly established federal law supports such a claim,

the Court would consider whether the state court's application of the federal law is

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unreasonable. The appellate court stated:

. . . Before voir dire, prospective jurors filled out a jury questionnaire asking, inter

alia, whether they or any family members or close friends had "ever been accused or

convicted of a crime," and if so, whether the criminal justice system had treated the

person fairly.

[] After the verdicts, Young learned a juror had answered that question in the

negative when, in fact, he had been convicted of a domestic-violence-related

misdemeanor two years before. Rule 24.1(c)(3)(iii), Ariz.R.Crim.P., allows the court

to order a new trial if a juror commits misconduct by "[p]erjuring himself or herself

or willfully failing to respond fully to a direct question posed during the voir dire

examination." However, a defendant is entitled to a new trial based on juror

misconduct only if he "'shows actual prejudice or if prejudice may be fairly presumed

from the facts.'" State v. Lehr, 227 Ariz. 140, ¶ 49, 254 P.3d 379, 390 (2011), quoting

State v. Dann, 220 Ariz. 351, ¶ 115, 207 P.3d 604, 624 (2009). "The trial court is in

the best position 'to determine what effect, if any, alleged misconduct might have had

upon other jurors' and whether a new trial should be granted." Brooks v. Zahn, 170

Ariz. 545, 549, 826 P.2d 1171, 1175 (App.1991), quoting Cota v. Harley Davidson,

a Division of AMF, Inc., 141 Ariz. 7, 10, 684 P.2d 888, 891 (App.1984).

[] In denying the motion, the trial court found that the juror's incorrect answer to one

of the questions on the questionnaire did not rise to the level of perjury. The court

found no evidence "that the juror's answer was made with [his] knowledge that it was

false and with [his] intention that it enhance [his] probability of being selected to

serve as a member of the trial jury." The court further found the incorrect answer had

not resulted in prejudice to Young. And, the court concluded that the existence of the

juror's conviction, even if it had been known, would not have been a sufficient basis

to strike him for cause.

[] Young contends he has shown prejudice because knowledge about the juror's

history with domestic violence would have affected how he used his peremptory

strikes. But this court has held that is an insufficient basis to prove prejudice entitling

a defendant to a new trial. Catchings v. City of Glendale, 154 Ariz. 420, 422–23, 743

P.2d 400, 402–03 (App.1987). As long as the jury that decided the case ultimately

was fair and impartial, we will not reverse a conviction based on the inability to

exercise a peremptory strike on a particular juror. See State v. Eddington, 226 Ariz.

72, ¶¶ 18–19, 244 P.3d 76, 83 (App.2010), aff'd, 228 Ariz. 361, 266 P.3d 1057 (2011).

[] Young emphasizes that Phillips and Gary had a similar history of domestic

violence and therefore the juror in question "could be considered more likely to

believe that Phillips, the victim of abuse, was getting her due (and by extension, so

was her new boyfriend Young)." But Young's speculation is insufficient to show the

juror was partial when deciding his case. And had Young been concerned with

discovering potential jurors' biases or prejudices toward domestic violence victims,

he could have inquired specifically about this topic during voir dire.

[] Young concedes in his reply brief that the argument boils down to "whether the

juror made a mistake on his questionnaire or whether he withheld information." That

determination is best left to the trial court. See Brooks, 170 Ariz. at 549, 826 P.2d at

1175. We find no abuse of discretion in the court's denial of Young's motion for a new

trial.

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Young, No., 2012 WL 642852, at *9–10. The trial court, in denying a motion for new trial,

recognized the jury summons informed the juror he was not eligible to serve if he had been

convicted of a felony office. "Based on the information available to the [trial court] and the

record before the [trial court, the Court concluded] it is not possible to conclude that this

juror's response constituted perjury." May 4, 2010, Ruling (Doc. 99-4, ECF p. 265), State

v. Young, 2010 Ariz. Super. LEXIS 1069, *3. The trial court also stated:

Perjury is defined by A.R.S. § 13-2702. Perjury must include a false sworn statement

regarding a material issue. The person making the statement must believe it to be

false. Here, it is just as likely and in the Court's view, probably more likely, that the

juror either forgot about __ conviction; assumed that it was no longer an issue, given

that __ had satisfied __ sentence; considered it a part of __ overall domestic

proceedings; knew that it was not a felony and assumed that Question 7 only

concerned felony convictions; or, any number of other possibilities. No proof has been

offered to suggest that the juror in question knowingly and intentionally made a false

statement for the purpose of minimizing the chance that __ would be stricken as a

potential juror, or to otherwise participate in an effort to violate Mr. Young's rights.

It can also be argued that the juror's statement may not have been "material", as that

term is used and contemplated by A.R.S. §13-2701 and §13-2702.

Obviously, it is unfortunate that this incident occurred. However, the record is devoid

of any compelling evidence from which the Court can reasonably conclude that the

juror's answer was made with __ knowledge that it was false and with __ intention

that it enhance __ probability of being selected to serve as a member of the trial jury.

In the Court's extensive experience in conducting voir dire and questioning potential

jurors, it is far more common to find a potential juror who misunderstood a question

or legitimately forgot relevant information than it is to find a potential juror who

intentionally attempted to mislead the Court or counsel. In fact, this Court has never

encountered a potential juror who it believed was being intentionally deceptive in an

effort to undermine the legitimacy and fairness of a trial.

Here, no follow-up questioning was requested by counsel of this juror, on this issue. While the Court is not critical of the defense, nor is it suggesting that they necessarily

should have done so, clearly the defense had the ability to conduct a criminal history

background check on every potential juror. The defense could have then compared

that information to the information on the juror's questionnaire. As to this particular

juror and __ particular criminal, conviction, the information was a matter of public

record and available two years before the voir dire process in State v. Young began.

Obviously, Mr. Young's counsel obtained information regarding this juror after the

verdict. That exact same information could have been obtained by Mr. Young's

counsel regarding this juror, or any other prospective juror, well before jury selection

and empanelment occurred. Furthermore, such investigation could have been made

during the course of the trial, which lasted several weeks. Any juror misconduct

would have been addressed, and if appropriate, a juror could have been excused, prior

to the commencement of deliberations.

It is impossible to say in a vacuum and without more information, what the Court

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would have done had counsel for Mr. Young indicated during the voir dire process,

"We challenge juror, __ for cause, based on a false answer which __ gave in __ Jury

Questionnaire". Certainly, the Court would have questioned the juror individually.

During the course of that questioning, the Court would have made its own

determination as to why the incorrect answer was given. If the Court determined - as

it has always done when presented with this type of issue - that the misstatement was

the result of misunderstanding, confusion, forgetfulness or the like, the Court would

not have sustained a challenge for cause as to that juror. 

The appropriate legal standard is set forth in Catchings v. City of Glendale, 154 Ariz.

420, 743 P.2d 400 (App. 1987). The standard requires the moving party to establish

that a juror's failure to provide an honest response to a material voir dire question was

such that a correct response would have resulted in the Court sustaining a challenge

for cause. Furthermore, the party complaining of the juror's incorrect answer must

also show that he was prejudiced by the misconduct.

The Court does not believe that Defendant Young was prejudiced by juror __

incorrect answer as to the question at issue. The juror's answer must be considered

in the context of all of the available and relevant information. That information

reveals that __ sent some text messages to __ estranged spouse in the course of an

acrimonious dissolution proceeding. While this Court certainly does not condone that

conduct, having served for three years on the Domestic Relations Bench, such

behavior is unfortunately very, very common in dissolution cases. Even assuming that

__ intentionally sought to deceive the Court and counsel about __ misdemeanor

conviction for this conduct, the Court does not believe that such could fairly or

reasonably be characterized as unduly prejudicing this juror against Defendant Ronald

Young.

In the case at bar, there was very limited testimony regarding domestic abuse. The

testimony that was presented, suggested that the decedent, Gary Triano and

co-defendant Pamela Phillips, had an acrimonious dissolution of their marriage and

that their relationship included acts of domestic violence. There was further

testimony indicating that Ms. Phillips had obtained an Order of Protection against Mr.

Triano.

This Court is unable to reasonably conclude that any domestic violence which may

have occurred between __ and __ spouse, together with any domestic violence that

may have occurred between Mr. Triano and co-defendant Phillips, somehow affected

__ evaluation of the evidence and charges in the case against Defendant Young.

Based upon all of the facts and the relevant law attendant thereto, as set forth in

Catchings v. City of Glendale, supra, the Court respectfully concludes that there was

no prejudice to Defendant Young as a result of juror __ misstatement on the Jury

Questionnaire. The Court further concludes that the Defendant has failed to prove

that had __ incorrect response been correct, that the Court would have necessarily, or

likely, sustained a challenge for cause as to that juror. In fact, the Court's conclusion

on that question is to the contrary.

Id. at 265-68.

The trial court's determination that the facts of the case did not establish the juror

committed perjury and the appellate court's determination the trial court did not abuse its

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discretion are not unreasonable. Further, under the facts of this case, it was not an

unreasonable application of the Sixth Amendment guarantee of a fair trial by impartial,

indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 722 (1961). The Court agrees with the

Magistrate Judge that Young is not entitled to § 2254(d)(1) or (d)(2) relief on this claim.

IX. Ineffective Assistance of Counsel

Young objects to the Magistrate Judge's conclusion regarding Young's ineffective

assistance claims as to (1) counsel's failure to investigate and present evidence that he was

in California around the time of the bombing, (2) counsel's failure to interview witnesses who

were at the scene of the bombing, (3) counsel's failure to seek DNA testing of the bomb

fragments and a fingerprint comparison of prints found on Triano's car, and (4) counsel's

failure to withdraw because of a conflict of interest.

A. Alibi Investigation

As to witness George Rombach ("Rombach"), Young asserts the Magistrate Judge

downplayed the strength of Rombach's testimony that Young was in California at the time

of the bombing. Young points out that, on November 5, 1996 (four days after the bombing)

Rombach told police he had seen Young in California three or four days earlier. Because of

the delay in bringing the prosecution, Rombach was being interviewed 14 years later; Young

asserts the jury would recognized the significance of the delay. Further, Rombach's

testimony would also have been strengthened by corroboration from other sources, which

counsel also neglected to investigate. Specifically, Young's step-father and his mother, the

Garans, would have corroborated the fact that Young was in California in October 1996.

Additionally, Young sent faxes from Rombach's office in California dated both before and

after the bombing. In other words, Young's alibi would have been corroborated by three

independent sources and counsel's deficient conduct denied Young the opportunity to present

credible evidence of an alibi. Such presentation would have also allowed counsel to

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effectively cross-examine Detective Crawley, who presented his own narrative that

Rombach's statements were inconsistent.

However, the Court agrees with the Magistrate Judge that Rombach's testimony did

not establish an alibi for Young. Rather, even the statement made four days after the

bombing failed to show Young was not in Tucson at the time of the bombing. Similarly, the

testimony from the Garans and the fax evidence does not establish an alibi (e.g., mere

"impression" Young was in California in late 1996, fax dated almost two weeks prior to the

bombing.). R & R (Doc. 107, p. 22). "[C]ounsel could have had good reason for not

pursuing those investigations (e.g., they could have suspected that such evidence would have

been consistent with [Young's guilt)." Id. Further, as state by Respondents, "counsel

presented that evidence at trial through a state's witness. See Doc. 98-4, at 710. Moreover,

Young omits that Rombach also taught Young how to construct a pipe bomb. See Doc. 99,

at 52–55. Therefore even if Rombach could have provided an alibi, counsel reasonably chose

not to present him as a witness. See Doc. 99, at 309 (state court ruling)." Response (Doc.

111, p. 9). See Cunningham v. Wong, 704 F.3d 1143, 1158–59 (9th Cir. 2013) (finding that

counsel was not ineffective for failing to raise an alibi defense where the "proffered alibi

evidence [was] extremely weak" and "consistent with [the petitioner's] guilt").

B. Witness Investigation

Young also argues the Magistrate Judge is incorrect in determining the claim

regarding eyewitnesses to the crime relies on hindsight. Witness Keisho Kudo ("Kudo")

identified two persons at the scene; he picked those two individuals out of a number of

photographs. The Magistrate Judge stated:

One final point: the Supreme Court has made clear that counsel's performance must

not be evaluated with the benefit of hindsight. Strickland, 466 U.S. at 689. [Young's]

claim makes sense only with the benefit of hindsight. He argues that the killing was

orchestrated by McNeice, and that the witnesses' descriptions match those of

McNeice's associates. But [Young] learned that McNeice was investigated as a

suspect only after he was convicted in 2010, and he alleges that the state withheld that

information in violation of Brady v. Maryland, 373 U.S. 83 (1963). [Young's]

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counsel had no indication that McNeice was an alternative suspect and thus no reason

to ask witnesses if they had seen his associates at the crime scene.

R & R (Doc. 107, pp. 23-24). As counsel did not know pre-trial or during the trial of

individuals that matched the descriptions of McNeice associates, the Court agrees with the

Magistrate Judge that counsel was not ineffective for failing to investigate/interview to

establish the presence of the other individuals. 

C. DNA and Fingerprint Evidence

Young states his "trial counsel also failed to test DNA and fingerprints found at the

crime scene, which were tested in 2013 and did not match [Young]. The failure to test this

exculpatory evidence was deficient performance, especially when compounded with the

negligence in investigating [Young's] alibi." Objections (Doc. 110, pp. 8-9). However,

Young has not made a "specific objection" to the R & R as to this issue. Reyna-Tapia, 328

F.3d at 1119. Nonetheless, the Court will briefly address this issue.

The Magistrate Judge stated:

[Young] has not shown that counsel were deficient. He recalls "counsel telling him

that they did not need to conduct any investigation, as the State had no evidence tying

[him] to the bombing." Given that the prosecution had no direct evidence placing

[Young] in Arizona, let alone at the crime scene, that was a reasonable strategy.

Given that strategy, it plainly was reasonable for counsel not to investigate DNA and

fingerprint evidence. See Strickland, 466 U.S. at 691 ("[C]ounsel has a duty to make

reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary." (emphasis added)). This claim also relies heavily on the

benefit of hindsight: [Young] knows now that the forensic evidence is not a match

to him, but his counsel did not know that. For all they knew, the forensic evidence

could have placed him at the scene.

R & R (Doc. 107, p. 24). Moreover, the Court also considers that, had the testing been

completed prior to trial, it would arguably not contradict the evidence against Young.

Rather, the possible involvement or guilt of others does not diminish the evidence against

Young. 

. . . . .

. . . . .

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D. Conflict of Interest

In his Amended Petition, Young argued the conduct of counsel, who worked for the

public defender's office, was deficient for failing to withdraw because of a conflict of

interest. Specifically, Young asserted a different public defender represented a "significant

suspect" in the case and made statements about that suspect to the media. Although Young

has not made a "specific objection" to the R & R as to this issue, Reyna-Tapia, 328 F.3d at

1119, the Court will briefly address this issue.

The Magistrate Judge stated:

In the conflict-of-interest context, "[p]rejudice is presumed only if the defendant

demonstrates that counsel 'actively represented conflicting interests' and that 'an actual

conflict of interest adversely affected his lawyer's performance.'" Strickland, 466 U.S.

at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). [Young] does not

explain how the alleged conflict of interest affected counsel's performance. Thus, he

has failed to demonstrate prejudice.

R & R (Doc. 107, pp. 24-25). This Court agrees with the Magistrate Judge: Young has not

demonstrated prejudice.

E. Brady Violation

Young objects to the Magistrate Judge's recommendation that the Brady claims fail.

The Magistrate Judge stated:

As for the third-party culpability evidence regarding Neil McNeice, many of the

details offered by [Young] come from interviews conducted by Phillips's defense team

after his trial was over; he does not cite or otherwise identify documents or witnesses

concerning McNeice that the state had and withheld before trial. He has the burden

on his claim, and this omission means he has not met it.

R & R (Doc. 107, p. 26). The Magistrate Judge reviewed the record and summarized

documents that may have been at issue. This included, inter alia, that John Sigmon

("Sigmon") had claimed responsibility for the bombing, Sigmon had an associate named

"Ernie," who was believed to carry a firearm; however, it was not clear if this was McNeice

associate Ernie Avaloz. Further, a friend of McNeice informed an FBI agent that McNeice

had a penchant for violence, had solicited the murder of several people, and wanted Triano

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dead because he had defrauded McNeice out of $80,000. R & R (Doc. 107, pp. 26-27). The

Magistrate Judge stated:

While this evidence establishes that McNeice had motive to kill Triano, it does not

link McNeice or his associates to the bomb or the crime scene. Furthermore, the jury

heard testimony about others who had the same motive. There was evidence that

Triano had at least $4 million in debt and up to $20 million in unliquidated liabilities

(Doc. 98-4 at 40, 911); that Triano owed money to "six or seven Las Vegas casinos"

(Doc. 98-3 at 1422); that Triano had a deal with Gary Fears involving "Chinese

gambling interests" (a deal which Triano's friend would have been "afraid" to do

himself), and that Fears initially was the "primary suspect" in the murder (Doc. 98-3

at 933, 1421; Doc. 98-4 at 911); that Triano had lost money on an investment for

Mexican investors (Doc. 96 at 79–80); and that others, including Mike Mariner,

Michael Gardner, and Kevin Oberg, were suspects as well (Doc. 98-3 at 1383–84,

1388, 1419). In view of these alternative suspects, the evidence concerning McNeice

was not material.

R & R (Doc. 107, p. 27). Young argues the Magistrate Judge erred in her determination that

Young had not identified the undisclosed documents because Young had pointed to several

boxes of information turned over to Phillips' counsel after Young's conviction. However, the

Magistrate Judge remarked upon Young's failure to cite or otherwise identify documents or

witnesses concerning McNeice that the state had and withheld before trial. As Young had

the burden to establish the claim, see e.g. United States v. Jernigan, 492 F.3d 1050, 1053 (9th

Cir. 2007), his failure to identify such documents or witnesses leads to a conclusion the

burden has not been met.

Additionally, the Magistrate Judge recognized that Young had access to his own bank

records. The state made clear in pre-trial filings Phillips's payments to Young in exchange

for the killing would be at issue at trial and Young had an incentive to obtain his own records

if he thought they would undermine the state's case. Further, as to Phillips's bank records,

the Magistrate Judge stated:

Next, Phillips's bank records are not exculpatory. The jury heard testimony from

multiple witnesses that [Young] consulted with Phillips on her business, "Star

Babies." (Doc. 98-3 at 2069–72, 2097–98, 2151; Doc. 98-4 at 207.) Phillips's bank

records would have been cumulative evidence of that relationship, and they would not

have undermined evidence of the post-1996 relationship, which was categorically

different. As previously explained, the jury heard extensive evidence that Phillips's

payments were part of an illicit agreement, not a legitimate one: the payments were

made in cash, rather than by check or bank transfer (Doc. 98-4 at 551–52); each

payment was comprised of multiple withdrawals of small amounts of cash (id. at

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552–53); the payments were addressed to "Richard Perez," rather than to [Young] (id.

at 585–86); and [Young] connected the payments to a "policy" and to Phillips sitting

in a "women's prison for murder" (Doc. 96-5 at 24; Doc. 95-1 at 71; Doc. 98-4 at

1509–11). In view of this evidence, the pre-1997 bank records were not exculpatory.

(And even if they were, they were not material because they would have tipped the

scales in [Young's] favor only a negligible amount.)

R & R (Doc. 107, p. 26).

The Court agrees Young has not shown the reference to boxes of information

identifies documents or witnesses the state had and withheld prior to trial or that the

information contained within the boxes was material. Additionally, in light of the

circumstances and evidence, the bank records have not been shown to be exculpatory or

material.

X. Actual Innocence

Young repeats his argument he is actually innocent. However, he does not offer any

specific objection to the R & R. Nonetheless, the Court will briefly address this issue.

The Magistrate Judge discussed the minimal persuasive value of Mims's testimony

and the shotgun evidence as well as the support the new DNA and fingerprint evidence

provided to Young's defense. The Magistrate Judge also discussed the weak new evidence

concerning third-party culpability (e.g., credibility and conflicting statement of Morris,

uncertain/imprecise statements of Kudo (although he picked out two individuals from

multiple photographs), conflicting statements of other witnesses, unsupported allegations).

The Magistrate Judge summarized:

So, [Young] is left with the following facts: McNeice, like others, had a motive to

kill Triano; Capuano had the skills to build a bomb and had done bad things for

McNeice; and the DNA and fingerprints were not a match to [Young]. As discussed

in Section IV, the jury heard convincing evidence of [Young's] guilt. [Young's] new

facts do not "convincingly undermine" that evidence. [Larsen v. Soto, 742 F.3d 1083,

1096 (9th Cir. 2013)]; cf. [Gable v. Williams, 49 F.4th 1315, 1328 (9th Cir. 2022)],

(holding that the petitioner's gateway claim succeeded because "nearly all the State's

key witnesses" recanted and another person gave multiple "detailed and compelling

confessions"). Notably, [Young's] theory does not implicate Phillips at all, so it is

unclear why Phillips would have allowed herself to be extorted by [Young] over many

years, or why [Young] would have threatened to turn her in for murder if she did not

pay. 

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R & R (Doc. 107, pp. 30-31). As stated by the Magistrate Judge, Young "has not shown that

it is more likely than not that no reasonable juror would have convicted him if his new

evidence had been presented at trial." Id. at 31; see also House v. Bell, 547 U.S. 518, 536

(2006) ("[P]risoners asserting innocence as a gateway to defaulted claims must establish that,

in light of new evidence, 'it is more likely than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt.'"). Young's gateway claim fails and Young's

procedural defects are not excused.

XI. Certificate of Appealability ("COA")

Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the

"district court must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant." Such certificates are required in cases concerning detention arising

"out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking

a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1). Here, the Amended

Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State

court judgment. This Court must determine, therefore, if a COA shall issue.

The standard for issuing a COA is whether the applicant has "made a substantial

showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district

court has rejected the constitutional claims on the merits, the showing required to satisfy §

2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would

find the district court's assessment of the constitutional claims debatable or wrong." Slack

v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). "When the district

court denies a habeas petition on procedural grounds without reaching the prisoner's

underlying constitutional claim, a COA should issue when the prisoner shows, at least, that

jurists of reason would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling." Id.; see also Robbins v. Carey, 481 F.3d

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1143,1146-47 (9th Cir. 2007) (failure to object to magistrate judge's conclusions does not

automatically waive appellate challenge) In the certificate, the Court must indicate which

specific issues satisfy the showing. See 28 U.S.C. § 2253(c)(3). 

The Court finds that jurists of reason would not find it debatable whether the

Amended Petition stated a valid claim of the denial of a constitutional right and the Court

finds that jurists of reason would not find it debatable whether the district court was correct

in its procedural ruling. A COA shall not issue as to Young's claims.

Any further request for a COA must be addressed to the Court of Appeals. See Fed.

R.App. P. 22(b); Ninth Circuit R. 22-1.

Accordingly, IT IS ORDERED:

1. The Report and Recommendation (Doc. 107) is ADOPTED;

2. Young's Amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas

Corpus by a Person in State Custody (Doc. 93) is DENIED and DISMISSED WITH

PREJUDICE.

3. The Clerk of the Court shall enter judgment and shall then close its file in this

matter, and;

4. A Certificate of Appealability shall not issue in this case.

DATED this 28th day of March, 2024.

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